UNITED STATES
REPORTS
585
OCT. TERM 2017
UNITED STATES REPORTS
VOLUME 585
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 2017
June 14 Through September 30, 2018
End of Term
CHRISTINE LUCHOK FALLON
reporter of decisions
WASHINGTON : 2025
Printed on Uncoated Permanent Printing Paper
For sale by the Superintendent of Documents, U. S. Government Publishing Offce
JUSTICES
of the
SUPREME COURT
during the time of these reports
JOHN G. ROBERTS, Jr., Chief Justice.
ANTHONY M. KENNEDY, Associate Justice.*
CLARENCE THOMAS, Associate Justice.
RUTH BADER GINSBURG, Associate Justice.
STEPHEN BREYER, Associate Justice.
SAMUEL A. ALITO, Jr., Associate Justice.
SONIA SOTOMAYOR, Associate Justice.
ELENA KAGAN, Associate Justice.
NEIL M. GORSUCH, Associate Justice.
retired
JOHN PAUL STEVENS, Associate Justice.
SANDRA DAY O'CONNOR, Associate Justice.
DAVID H. SOUTER, Associate Justice.
ofcers of the court
JEFFERSON B. SESSIONS, III, Attorney General.
NOEL J. FRANCISCO, Solicitor General.
SCOTT S. HARRIS, Clerk.
CHRISTINE LUCHOK FALLON, Reporter of
Decisions.
PAMELA TALKIN, Marshal.
LINDA S. MASLOW, Librarian.
* Justice Kennedy retired effective July 31, 2018.
iii
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 June 27, 2017, viz.:
For the District of Columbia Circuit, John G. Roberts, Jr.,
Chief Justice.
For the First Circuit, Stephen Breyer, Associate Justice.
For the Second Circuit, Ruth Bader Ginsburg, Associate
Justice.
For the Third Circuit, Samuel A. Alito, Jr., Associate Justice.
For the Fourth Circuit, John G. Roberts, Jr., Chief Justice.
For the Fifth Circuit, Samuel A. Alito, Jr., Associate Justice.
For the Sixth Circuit, Elena Kagan, Associate Justice.
For the Seventh Circuit, Elena Kagan, Associate Justice.
For the Eighth Circuit, Neil M. Gorsuch, Associate Justice.
For the Ninth Circuit, Anthony M. Kennedy, Associate Justice.
For the Tenth Circuit, Sonia Sotomayor, Associate Justice.
For the Eleventh Circuit, Clarence Thomas, Associate Justice.
For the Federal Circuit, John G. Roberts, Jr., Chief Justice.
June 27, 2017.
(For next previous allotment, see 582 U. S., p. v.)
(For next subsequent allotment, see post, p. v.)
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 June 27, 2017, viz.:
For the District of Columbia Circuit, John G. Roberts, Jr.,
Chief Justice.
For the First Circuit, Stephen Breyer, Associate Justice.
For the Second Circuit, Ruth Bader Ginsburg, Associate
Justice.
For the Third Circuit, Samuel A. Alito, Jr., Associate Justice.
For the Fourth Circuit, John G. Roberts, Jr., Chief Justice.
For the Fifth Circuit, Samuel A. Alito, Jr., Associate Justice.
For the Sixth Circuit, Elena Kagan, Associate Justice.
For the Seventh Circuit, Elena Kagan, Associate Justice.
For the Eighth Circuit, Neil M. Gorsuch, Associate Justice.
For the Ninth Circuit, Anthony M. Kennedy, Associate Justice.
For the Tenth Circuit, Sonia Sotomayor, Associate Justice.
For the Eleventh Circuit, Clarence Thomas, Associate Justice.
For the Federal Circuit, John G. Roberts, Jr., Chief Justice.
August 1, 2018.
(For next previous allotment, see ante, p. iv.)
v
TABLE OF CASES REPORTED
Note: All undesignated references herein to the United States Code
are to the 2012 edition, one of its supplements, or both.
Cases reported before page 1001 are those decided with opinions of the
Court or decisions per curiam. Cases reported on page 1001 et seq. are
those in which orders were entered.
Page
Aames v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Abbott v. Perez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 579
Abdirahman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Abela v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Aberdeen Marketplace, Inc. v. Nanni . . . . . . . . . . . . . . . . . . . . . . 1004
Acker, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Acker v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Acosta; Preston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Acting Penn. Secretary of State; Bergdoll v. . . . . . . . . . . . . . . . . 1004
Adams v. Bailey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Adamson v. Griffn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Adger; Odom v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Agudo-Monroy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Agustin-Garcia v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Ahmed v. Arizona Dept. of Transp. . . . . . . . . . . . . . . . . . . . . . . . 1007
Alabama Bd. of Pardon and Paroles; Jackson v. . . . . . . . . . . . . . . 1048
Alabama State Univ.; Cromartie v. . . . . . . . . . . . . . . . . . . . . . . . . 1045
Albrecht; Merck Sharp & Dohme Corp. v. . . . . . . . . . . . . . . . . . . 1029
Alcorta v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Alerus Financial, N. A.; Pioneer Centres Holding Co. v. . . . . . . . 1056
Alexander v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006,1030
Alexander v. Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Alias v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Alirad v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Allah, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Allen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Allina Health Services; Azar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Almeida; Tirat-Gefen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Almighty Supreme Born Allah v. Milling . . . . . . . . . . . . . . . . . . . 1056
Almonte v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
vii
viii TABLE OF CASES REPORTED
Page
Alston v. Madison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Alvarad v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Alvarado v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Amalgamated. For labor union, see name of trade.
Amalgamated Transit; Nelson v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
American Commercial Lines, LLC v. United States . . . . . . . . . . . 1003
American Express Co.; Ohio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 529
Amodeo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Andrews, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Animal Science Products v. Hebei Welcome Pharm. Co. . . . . . . . . 33
Anthony v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Antonio v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Antonio Rios v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Appellate Div., Super. Ct. of Cal., Los Angeles Cty.; Ling Zhuang v. 1022
Apple Inc. v. Pepper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Archer & White Sales, Inc.; Henry Schein, Inc. v. . . . . . . . . . . . . 1015
Argus Leader; Food Marketing Institute v. . . . . . . . . . . . . . . . . . 1055
Argus Leader Media; Food Marketing Institute v. . . . . . . . . . . . . 1055
Arizona Dept. of Transp.; Ahmed v. . . . . . . . . . . . . . . . . . . . . . . . 1007
Arlene's Flowers and Gifts v. Washington . . . . . . . . . . . . . . . . . . 1013
Arlene's Flowers, Inc. v. Washington . . . . . . . . . . . . . . . . . . . . . . 1013
Arlotta v. Cook Moving System, Inc. . . . . . . . . . . . . . . . . . . . . . . 1026
Armas v. Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
A. S. F. v. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Attorney Gen.; Garcia Garcia v. . . . . . . . . . . . . . . . . . . . . . . . 1003,1004
Attorney Gen. of Cal.; A Woman's Friend Pregnancy Clinic v. . . . 1027
Attorney Gen. of Cal.; Livingwell Medical Clinic, Inc. v. . . . . . . . 1027
Association des Eleveurs de Canards et d'Oies v. Becerra . . . . . . 1002
Assured Guarantee Corp.; Ruiz-Rivera v. . . . . . . . . . . . . . . . . . . . 1011
AT&T Mobility LLC; Roberts v. . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Attorney Gen.; Alias v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Attorney Gen.; Chasson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Attorney Gen.; Coates v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Attorney Gen.; Elinzano-Gonzales v. . . . . . . . . . . . . . . . . . . . . . . . 1004
Attorney Gen.; Gaas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Attorney Gen.; Hason v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Attorney Gen.; Khalil v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Attorney Gen.; Martinez Cazun v. . . . . . . . . . . . . . . . . . . . . . . . . 1003
Attorney Gen.; Qorane v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Attorney Gen.; Rodriguez Vazquez v. . . . . . . . . . . . . . . . . . . . . . . 1017
Attorney Gen.; Saldana Castillo v. . . . . . . . . . . . . . . . . . . . . . . . . 1028
Attorney Gen.; Simmons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Attorney Gen.; Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Attorney Gen. of Cal.; Association des Eleveurs de Canards v. . . 1002
TABLE OF CASES REPORTED ix
Page
Attorney Gen. of Cal.; Mountain Right to Life, Inc. v. . . . . . . . . . 1027
Attorney Gen. of Cal.; Pregnancy and Family Center v.
Bell v. Inova Health Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
. . . . . . . . 1027
Attorney Gen. of Kan.; Roeder v. . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Audatex N. A., Inc. v. Mitchell Int., Inc. . . . . . . . . . . . . . . . . . . . . 1044
Austin v. Jacksonville Sheriff's Offce . . . . . . . . . . . . . . . . . . . . . . 1045
Averett v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Avila-Luna v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
A Woman's Friend Pregnancy Resource Clinic v. Becerra . . . . . . 1027
Ayers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Azar v. Allina Health Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
BAC Home Loans Servicing, LP; Burnett v. . . . . . . . . . . . . . . . . 1047
Badmus v. Mutual of Omaha Ins. Co. . . . . . . . . . . . . . . . . . . . . . . 1054
Bailey; Adams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Bailey v. Blake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Bailey v. Cumberland Cty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Bailey v. Gardner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Bailon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Bales v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Bamdad v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Bandimere; Securities and Exchange Comm'n v. . . . . . . . . . . . . . 1035
Banks v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029,1030
Bardin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Barksdale v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Bartlett; Nieves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Bassett v. Horton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Bassi, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Batista Almeida; Tirat-Gefen v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Bauer; Sause v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Bayview Loan Servicing, LLC; Wright v. . . . . . . . . . . . . . . . . . . . 1047
Beachem v. Florida Dept. of Revenue . . . . . . . . . . . . . . . . . . . . . 1021
Beasley; Lee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Beason v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Beaudreaux; Sexton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961
Beavers v. Schneider National, Inc. . . . . . . . . . . . . . . . . . . . . . . . 1012
Becerra; Association des Eleveurs de Canards et d'Oies v. . . . . . 1002
Becerra; A Woman's Friend Pregnancy Resource Clinic v. . . . . . . 1027
Becerra; Livingwell Medical Clinic, Inc. v. . . . . . . . . . . . . . . . . . . 1027
Becerra; Mountain Right to Life, Inc. v. . . . . . . . . . . . . . . . . . . . . 1027
Becerra; National Institute of Family and Life Advocate v. . . . . . 755
Becerra; Pregnancy and Family Resource Center v. . . . . . . . . . . . 1027
Becton Dickinson & Co.; Kersey v. . . . . . . . . . . . . . . . . . . . . . . . . 1026
Bell v. Inova Fairfax Hospital . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Benisek v. Lamone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
x TABLE OF CASES REPORTED
Page
Benitez-Reynoso v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1009
Brazil, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Breedlove v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Benjamin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Bennett v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Berg v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Bergdoll v. Torres . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Berger v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Berkeley; CTIA-The Wireless Assn. v. . . . . . . . . . . . . . . . . . . . . . 1027
Bernstein, Shur, Sawyer & Nelson, P. A. v. Snow . . . . . . . . . . . . 1017
Berry v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Berryhill; Biestek v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Berryhill; Karabajakyan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Berryhill; Mackey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Best v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Bethune v. Metropolitan Transp. Auth. /Long Island Bus . . . . . . . 1055
Bible v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Bickerstaff v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Bickham v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Biestek v. Berryhill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Biggs v. Ferrero . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Birdsong v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Bisbee; Stevenson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Blair v. Yum! Brands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Blake; Bailey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Blakesley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Blanchard v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Bluefeld v. Cohen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Boatwright v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Boaz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Bogar v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
BOKF, N. A. v. Momentive Performance Materials, Inc. . . . . . . . 1004
Bolanos v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Bolanos Galvan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Bonilla v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Bontrager v. Colorado Attorney Regulation Counsel . . . . . . . . . . 1007
Bormuth v. Jackson County . . . . . . . . . . . . . . . . . . . . . . . . . . 1033,1054
Boutte v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Boyd v. CitiMortgage Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Boyd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Bozic v. Wetzel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Braddock v. Jolie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018,1054
Bradley v. Wisconsin Dept. of Children and Families . . . . . . . 1022,1055
Brannan v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
TABLE OF CASES REPORTED xi
Page
Bridges v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Browne; Stanford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003,1054
Briggs v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030,1046
Broadway v. Vannoy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Brooks v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Brooks v. Raemisch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Brookshire v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Brower v. Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Brown v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Brown v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Brown; Peyton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Brown v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Buckner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Bugoni v. O'Brien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Bullock v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Burdick v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Burke v. Furtado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Burnett v. BAC Home Loans Servicing, LP . . . . . . . . . . . . . . . . . 1047
Burton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Bustamonte v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Buxton v. Estock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Buxton v. Hill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Buxton v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Byrd; Tennessee Wine and Spirits Retailers Assn. v. . . . . . . . . . . 1058
C. v. Oregon Dept. of Ed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
California; Valdez Perez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007,1045
Cates; Integris Health, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Cazimero v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Cain; McHale v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Caira v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
California; Gouch-Onassis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
California; Vrh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
California; Weible v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Calloway; Riley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Campanelli v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Carpenter v. Chicago . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007,1048
Carpenter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Carroll v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Carter v. Halliburton Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Casey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Cash v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Casillas Prieto v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Castillo v. Doral Park Country Club Villas . . . . . . . . . . . . . . . . . . 1044
Castillo v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
xii TABLE OF CASES REPORTED
Page
Cazun v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
CBS News Inc.; Den Hollander v. . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Cerny v. SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Cesarz; Wynn Las Vegas, LLC v. . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Chambers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024,1028
Chaney v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Chapman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Charles v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Charleston Police Dept.; Childress v. . . . . . . . . . . . . . . . . . . . 1007,1055
Chasson v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Chavez-Meza v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Chicago; Carpenter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007,1048
Childress v. Charleston Police Dept. . . . . . . . . . . . . . . . . . . . . 1007,1055
Chon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Christian, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Chung Hou Hsiao v. Hazuda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Chun Hei Lam v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Ciotta v. Holland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
CitiMortgage Inc.; Boyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Citizens, Responsibility & Ethics; Crossroads Policy Strategies v. 1056
City. See name of city.
Clark; Kinney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Clark v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Clark v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Clarke; O'Neal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Coad v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Coates v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Cohen; Bluefeld v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Coker v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Colby v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Cole v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Coleman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004,1030
Coleman Cable, LLC; Richmond v. . . . . . . . . . . . . . . . . . . . . . . . . 1003
Colen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Colon-Rivera v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Colorado Attorney Regulation Counsel; Bontrager v. . . . . . . . . . . 1007
Commissioner; Best v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Commissioner; Duquesne Light Holdings, Inc. v. . . . . . . . . . . . . . 1004
Commissioner; Kanofsky v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Commissioner; Said v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Commissioner; Schneider v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Commissioner of Internal Revenue. See Commissioner.
Commission, Lawyer Discip., State Bar of Tex.; Crampton v. . . 1005,1054
Common Cause; Rucho v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
TABLE OF CASES REPORTED xiii
Page
Commonwealth. See name of Commonwealth.
Connecticut; Ramos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Cooke v. Delaware . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Cook Moving System, Inc.; Arlotta v. . . . . . . . . . . . . . . . . . . . . . . 1026
Cooper v. Countrywide Home Loans, Inc. . . . . . . . . . . . . . . . . . . 1044
Cooper; Harris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Cooper v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Corrections Commissioner. See name of commissioner.
Cottner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Cotton v. San Bernardino . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Cougar Den, Inc.; Washington State Dept. of Licensing v. . . . . . . 1015
Coulter v. Coulter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Coulter v. Lindsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Countrywide Home Loans, Inc.; Cooper v. . . . . . . . . . . . . . . . . . . 1044
County. See name of county.
Court of Appeals. See U. S. Court of Appeals.
Covington; North Carolina v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 969
Cox v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Crampton v. Commission, Lawyer Discip., State Bar of Tex. . . 1005,1054
Crawford, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Crazy Horse Saloon & Restaurant, Inc. v. Degidio . . . . . . . . . . . . 1005
Crews v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Cromartie v. Alabama State Univ. . . . . . . . . . . . . . . . . . . . . . . . . 1045
Crossroads Policy Strategies v. Citizens, Responsibility & Ethics 1056
Cruz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Cruz-Pena v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
CSX Transportation, Inc.; Echols v. . . . . . . . . . . . . . . . . . . . . . . . 1047
CTIA-The Wireless Assn. v. Berkeley . . . . . . . . . . . . . . . . . . . . . 1027
Cuellar v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Cumberland Cty.; Bailey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Currier v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 493
Curry v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Daewoo Electronics America, Inc.; Opta Corp. v. . . . . . . . . . . . . . 1004
Dalmazzi v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527
Daniels; Noe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Dao v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Dassey v. Dittmann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Davenport v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Davidson v. Fairchild Controls Corp. . . . . . . . . . . . . . . . . . . . . . . 1018
Davis; Bible v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Davis; Isaacson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Davis v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Davis; Rodriguez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Davis; Runnels v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
xiv TABLE OF CASES REPORTED
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Davis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1011,1024,1030
Dawson v. Steager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
de Csepel v. Republic of Hungary . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Degidio; Crazy Horse Saloon & Restaurant, Inc. v. . . . . . . . . . . . 1005
Degidio; Thee New Dollhouse v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Dejesus v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
DeJesus v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
DEK–M Nationwide, Ltd. v. Hill . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Dekom v. U. S. District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Delaware; Cooke v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Delgado v. Godinez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Delvalle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Den Hollander v. CBS News Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Denrich, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Department of Justice; Parkinson v. . . . . . . . . . . . . . . . . . . . . . . . 1003
Department of Labor; National Restaurant Assn. v. . . . . . . . . . . 1016
Deutsche Bank National Trust Co.; Timbes v. . . . . . . . . . . . . 1018,1054
Diamond; Washington v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Director of penal or correctional institution. See name or title
of director.
DISH Network LLC; Dragon Intellectual Property, LLC v. . . . . 1001
District Court. See U. S. District Court.
District Judge. See U. S. District Judge.
Dittmann; Dassey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Doherty v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Donahue v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Donaldson v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Donohue v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Doral Park Country Club Villas; Castillo v. . . . . . . . . . . . . . . . . . 1044
Dorris v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Douce, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Douglas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Dowling; Ong Vue v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Dragon Intellectual Property, LLC v. DISH Network LLC . . . . . 1001
Duckett v. Marsh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Duenas v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Duncan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Dunham v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Duquesne Light Holdings, Inc. v. Commissioner . . . . . . . . . . . . . . 1004
Earle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Eastern Shoshone Tribe v. Wyoming . . . . . . . . . . . . . . . . . . . . . . 1024
Echols v. CSX Transportation, Inc. . . . . . . . . . . . . . . . . . . . . . . . 1047
Echols v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
E. I. du Pont de Nemours & Co. v. Smiley . . . . . . . . . . . . . . . . . . 1033
TABLE OF CASES REPORTED xv
Page
Elinzano-Gonzales v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Ellison v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Elon Property Mgmt.; Fish v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
English; Klug v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Entzminger v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Eppinger; Stansell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
EEOC; Union Pacifc R. Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Erikson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Estate. See name of estate.
Estefan; Jacobs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Estock; Buxton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Evans v. Mississippi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
EVE-USA, Inc. v. Mentor Graphics Corp. . . . . . . . . . . . . . . . . . . 1053
F. v. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Floyd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
FNB South of Alma, Ga.; Roberts v. . . . . . . . . . . . . . . . . . . . 1005,1054
Fairchild Controls Corp.; Davidson v. . . . . . . . . . . . . . . . . . . . . . . 1018
Federal Bureau of Prisons; Hicks v. . . . . . . . . . . . . . . . . . . . . . . . 1008
FCC; SNR Wireless LicenseCo, LLC v. . . . . . . . . . . . . . . . . . . . . 1016
Federal Energy Reg. Comm'n; Total Gas & Power N. A., Inc. v. 1003
Federal Housing Finance Agency; Findlay v. . . . . . . . . . . . . . . . . 1017
Federal Housing Finance Agency; Nomura Securities Int, Inc. v. 1017
FTC; Universal Processing Services of Wisc., LLC v. . . . . . . . . . 1017
Fernandes; Singh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Ferrero; Biggs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Findlay v. Federal Housing Finance Agency . . . . . . . . . . . . . . . . 1017
First Resort, Inc. v. Herrera . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Fish v. Elon Property Mgmt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Five Star Senior Living Inc. v. Mandviwala . . . . . . . . . . . . . . . . . 1017
Fletcher v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Florida; Cole v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Florida v. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803,1052,1057
Florida; Isom v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Florida; Jeanbart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Florida; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Florida; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Florida; Kaczmar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Florida; Russell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Florida; Sughrue v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Florida; Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Florida; Walker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Florida; Zack v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Florida Dept. of Corrections; Williams v. . . . . . . . . . . . . . . . . . . . 1054
Florida Dept. of Revenue; Beachem v. . . . . . . . . . . . . . . . . . . . . . 1021
xvi TABLE OF CASES REPORTED
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Fogle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Fourth Estate Public Beneft Corp. v. Wall-Street.com, LLC 1029,1053
Franchise Tax Bd. of Cal. v. Hyatt . . . . . . . . . . . . . . . . . . . . . 1029,1054
Garcia Garcia v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003,1004
Georgia; Florida v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803,1052,1057
Grace v. SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Grafton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Food Marketing Institute v. Argus Leader . . . . . . . . . . . . . . . . . . 1055
Food Marketing Institute v. Argus Leader Media . . . . . . . . . . . . 1055
Ford Motor Co. General Retirement Plan; Strang v. . . . . . . . . . . . 1016
Francisco v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Frederick v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Frost; Sturgeon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Fulton v. Philadelphia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Furber v. Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Furtado; Burke v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Fykes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Gaas v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Gaetz; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Galvan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1013,1026,1030
Galvan Bolanos v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Gamble v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Garcia v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Gardner; Bailey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Garman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Garza v. Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002,1054
Gaskins, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Gay v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Geddes v. People's Counsel of Baltimore County . . . . . . . . . . 1018,1054
Gelhaus v. Lopez's Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
George v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Gibson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Gill v. Whitford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Gillespie v. Reverse Mortgage Solutions . . . . . . . . . . . . . . . . . . . 1013
Gills v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Girau v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Godinez; Delgado v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Gofphin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Gonzalez-Longoria v. United States . . . . . . . . . . . . . . . . . . . . . . . 1001
Gore v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Goss v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Gouch-Onassis v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Governor of Ill.; Riffey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Governor of N. C.; Harris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
TABLE OF CASES REPORTED xvii
Page
Graham v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029,1054
Gray v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033,1054
Greater Baltimore Ctr., Pregnancy Concerns; Mayor of Baltimore v. 1033
Green v. Mnuchin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Greene v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Greytunkl v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Griffn; Adamson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Griffn v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Griffth; Kennell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Griffth v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Group v. Robinson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Grow; Lucy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Guice v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Guido; Mount Lemmon Fire Dist. v. . . . . . . . . . . . . . . . . . . . . . . . 1053
Gurczynski v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
H. v. J. K. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
H. v. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Hager v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Halliburton Co.; United States ex rel. Carter v. . . . . . . . . . . . . . . 1016
Hankston v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Harkness v. Spencer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Harnden v. Michigan Dept. of Health and Human Services . . . . . 1015
Harrell, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Harris v. Cooper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Harrison; Republic of Sudan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Harvey v. UTE Indian Tribe of the Uintah and Ouray Reservation 1014
H. A. S. Electrical Contractors v. Hemphill Construction Co. . . . 1004
Hason v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Hawaii; Trump v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 667
Hawaii; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Hawkins v. Kauffman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Hazuda; Chung Hou Hsiao v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Hebei Welcome Pharm. Co.; Animal Science Products v. . . . . . . . 33
Hei Lam v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA, Inc. . . . . 1015
Hemphill Construction Co.; H. A. S. Electrical Contractors v. . . . 1004
Henry Schein, Inc. v. Archer & White Sales, Inc. . . . . . . . . . . . . . 1015
Hercules v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Hernandez-Hernandez v. United States . . . . . . . . . . . . . . . . . . . . 1045
Herrera; First Resort, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Herrera v. Wyoming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Herrera Santa Cruz v. United States . . . . . . . . . . . . . . . . . . . . . . 1008
Hicks v. Federal Bureau of Prisons . . . . . . . . . . . . . . . . . . . . . . . 1008
Hill; Buxton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
xviii TABLE OF CASES REPORTED
Page
Hill; DEK–M Nationwide, Ltd. v. . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Hill v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Hirsch v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Hirschberg v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Ho v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Hodge v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Holland; Ciotta v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Home Depot U. S. A., Inc. v. Jackson . . . . . . . . . . . . . . . . . . . . . . 1058
Horton; Bassett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Hou v. Hazuda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Hsiao v. Hazuda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Huertalopez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Huey v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Hughes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005,1031
Hughes & Hughes LLP; Reddi v. . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Humburd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Hungary; de Csepel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Hyatt; Franchise Tax Bd. of Cal. v. . . . . . . . . . . . . . . . . . . . . 1029,1054
Idaho; Garza v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002,1054
Idaho; Sivak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Idaho; Wass v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Igartua v. Trump . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Illinois; Bickham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Illinois; Bridges v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Illinois; Campanelli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Indiana; Kaushal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Indiana; Timbs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002,1054
Indiana; Zanders v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Indiana Public Retirement System; Leidos, Inc. v. . . . . . . . . . . . . 1001
Inova Fairfax Hospital; Bell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Inova Health Care; Bell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
In re. See name of party.
Integris Health, Inc. v. Cates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Interfood, Inc.; Rice v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
International. For labor union, see name of trade.
International Refugee Assistance Project v. Trump . . . . . . . . . . . 1028
International Refugee Assistance Project; Trump v. . . . . . . . . . . 1028
ION Geophysical Corp.; WesternGeco LLC v. . . . . . . . . . . . . . . . 407
Iowa; Lepon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Irick, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Irick v. Tennessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Isaacson v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Isom v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Jackson v. Alabama Bd. of Pardon and Paroles . . . . . . . . . . . . . . . 1048
TABLE OF CASES REPORTED xix
Page
Jackson; Home Depot U. S. A., Inc. v. . . . . . . . . . . . . . . . . . . . . . . 1058
Jackson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001,1023
Jackson County; Bormuth v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1033,1054
Jacksonville Sheriff's Offce; Austin v. . . . . . . . . . . . . . . . . . . . . . 1045
Jacobs v. Estefan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Janus v. State, County, and Municipal Employees . . . . . . . . . . . . 878
Jaramillo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Jeanbart v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Jeffers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Jensen v. Obenland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Jewell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Jiminez-Victoria v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1031
J. K.; M. H. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Kansas; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Hirschberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Johnson; Alvarado v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Johnson; Brooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Johnson v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Johnson; Michigan State A. Philip Randolph Institute v. . . . . . . . 1056
Johnson; Simmons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Johnson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013,1031
Jolie; Braddock v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018,1054
Jones, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Jones v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Jones; Marshall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Jones; Morales v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Jones; Peede v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Jones; Reaves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Jones v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009,1031
Jordan v. Mississippi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Jordan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035,1054
Joseph v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
JPMorgan Chase Bank, N. A.; Liggins v. . . . . . . . . . . . . . . . . . . . 1047
JPMorgan Chase Bank, N. A.; Mohajer v. . . . . . . . . . . . . . . . . . . . 1055
Judge, Defance Cty. Ct. of Common Pleas; Ohio ex rel. McKinney v. 1006
K.; M. H. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Kaczmar v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Kalin Thanh Dao v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1014
Kanofsky v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Kansas; Brannan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Kansas; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Burdick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Donaldson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Griffn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
xx TABLE OF CASES REPORTED
Page
Kansas; Huey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Meredith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Richardson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Scuderi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Simmons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Kansas; Villa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Watkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Weis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kansas; Wingo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Karabajakyan v. Berryhill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Kargbo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Kauffman; Hawkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Kauffman; Mullarkey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Kaushal v. Indiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Ke Kailani Development LLC v. Ke Kailani Partners, LLC . . . . . 1048
Ke Kailani Partners, LLC; Ke Kailani Development LLC v. . . . . 1048
Kelley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Kelly v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Kennell v. Griffth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Kersey v. Becton Dickinson & Co. . . . . . . . . . . . . . . . . . . . . . . . . 1026
Keyes Co.; Soro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
K. H. v. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Layton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Lazar v. Kroncke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Khalil v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Kidd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Kinney v. Clark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Kissell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Klug v. English . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Knick v. Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Knoop v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Koch v. Sargent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Koenig v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Koth v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Kroncke; Lazar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Kundradurham v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Lam v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Lambert; Nutraceutical Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Lamone; Benisek v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Land v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Landry, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Larios-Villatoro v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Lavasseur v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Lawyers Bd. of Professional Responsibility; MacDonald v. . . . . . . 1018
TABLE OF CASES REPORTED xxi
Lee v. Beasley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Leidos, Inc. v. Indiana Public Retirement System . . . . . . . . . . . .
Page
1008
1001
Leonard v. Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1055
Lepon v. Iowa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
LeRoy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Lesch v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Lewis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010,1031
Lex Claims, LLC; Ruiz-Rivera v. . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Liggins v. JPMorgan Chase Bank, N. A. . . . . . . . . . . . . . . . . . . . 1047
Lindsay; Coulter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Linehan v. Piper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020,1055
Ling Zhuang v. Appellate Div., Super. Ct. of Cal., Los Angeles Cty. 1022
Livingwell Medical Clinic, Inc. v. Becerra . . . . . . . . . . . . . . . . . . 1027
Lopez v. Santa Ana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021,1055
Lopez's Estate; Gelhaus v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Lorenzo v. Securities and Exchange Comm'n . . . . . . . . . . . . . . . . 1002
Los Angeles Cty. Dept. of Children & Fam. Servs.; Roosevelt W. v. 1047
Loudon, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Louisiana; Clark v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Louisiana; Magee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Lowrey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Lozman v. Riviera Beach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Lucia v. SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Lucy v. Grow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Luna v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Lund; Rowan County v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035,1054
Lyles, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
MacDonald v. Lawyers Bd. of Professional Responsibility . . . . . . 1018
Mackey v. Berryhill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Madison; Alston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Maestre v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Maez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Magee v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Mairena v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Majetich v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Maldonado v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1009,1055
Maldonado-Landaverde v. United States . . . . . . . . . . . . . . . . . . . 1044
Mandviwala; Five Star Senior Living Inc. v. . . . . . . . . . . . . . . . . 1017
Mann v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Mansky; Minnesota Voters Alliance v. . . . . . . . . . . . . . . . . . . . . . 1
Manuel Lopez v. Santa Ana . . . . . . . . . . . . . . . . . . . . . . . . . . 1021,1055
Markley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Marquette Univ.; Wei Zhou v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Marsh; Duckett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
xxii TABLE OF CASES REPORTED
Page
Marshall v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Mason, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015,1055
Martin v. Sinclair Community College . . . . . . . . . . . . . . . . . . . . . 1021
Martin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Martinez Cazun v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Martinez-Hernandez v. United States . . . . . . . . . . . . . . . . . . . . . . 1044
Martin Mendoza v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Mascarella; Woodhull v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Maston v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Mathis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Mattison v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Maydoney v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Mayor of Baltimore v. Greater Baltimore Ctr., Pregnancy Concerns 1033
Mazzie v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
M. C. v. Oregon Dept. of Ed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
McArdle; Phillip v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
McCarthy & Holthus LLP; Obduskey v. . . . . . . . . . . . . . . . . . . . . 1029
McDuff v. Securities and Exchange Comm'n . . . . . . . . . . . . . . . . 1008
McFadden v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
McGowan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
McHale v. Cain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
McHenry v. Parking Violation Bureau . . . . . . . . . . . . . . . . . . . . . 1007
McKinney v. Judge, Defance Cty. Ct. of Common Pleas . . . . . . . . 1006
McKinney v. Schmenk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Mecker v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Medrano v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Melendres; Sheridan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Melvin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Mendoza v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Mentor Graphics Corp.; EVE-USA, Inc. v. . . . . . . . . . . . . . . . . . . 1053
Merck Sharp & Dohme Corp. v. Albrecht . . . . . . . . . . . . . . . . . . . 1029
Meredith v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Metropolitan Transp. Auth. /Long Island Bus; Bethune v. . . . . . . . 1055
M. H. v. J. K. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Michigan; Brower v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Michigan Dept. of Health and Human Services; Harnden v. . . . . . 1015
Michigan Gaming Control Bd. v. Moody . . . . . . . . . . . . . . . . . . . . 1003
Michigan State A. Philip Randolph Institute v. Johnson . . . . . . . . 1056
Millay v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Miller v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Milling; Almighty Supreme Born Allah v. . . . . . . . . . . . . . . . . . . 1056
Miner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Minnesota Voters Alliance v. Mansky . . . . . . . . . . . . . . . . . . . . . . 1
Mississippi; Evans v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
TABLE OF CASES REPORTED xxiii
Page
Mississippi; Jordan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Mitchell Int., Inc.; Audatex N. A., Inc. v. . . . . . . . . . . . . . . . . . . . 1044
Mnuchin; Green v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Mohajer v. JPMorgan Chase Bank, N. A. . . . . . . . . . . . . . . . . . . . 1055
Momentive Performance Materials, Inc.; BOKF, N. A. v. . . . . . . . 1004
Momentive Performance Materials, Inc.; Wilmington Trust, N. A. v. 1004
Montoya v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Moody; Michigan Gaming Control Bd. v. . . . . . . . . . . . . . . . . . . . . 1003
Morales v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Morreo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Morrill v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Morton v. Perry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Mountain Right to Life, Inc. v. Becerra . . . . . . . . . . . . . . . . . . . . 1027
Mount Lemmon Fire Dist. v. Guido . . . . . . . . . . . . . . . . . . . . . . . 1053
Mullarkey v. Kauffman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Murdorf v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Murphy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Mutual of Omaha Ins. Co.; Badmus v. . . . . . . . . . . . . . . . . . . . . . . 1054
M. W. v. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Nanni; Aberdeen Marketplace, Inc. v. . . . . . . . . . . . . . . . . . . . . . . 1004
Nataren v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
National Institute of Family and Life Advocate v. Becerra . . . . . 755
National Restaurant Assn. v. Department of Labor . . . . . . . . . . . 1016
Nealy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Nedd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Nelson v. Amalgamated Transit . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
New York; Worth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Nieves v. Bartlett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Noe v. Daniels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Nomura Securities Int, Inc. v. Federal Housing Finance Agency 1017
North Carolina v. Covington . . . . . . . . . . . . . . . . . . . . . . . . . . . . 969
Northern Arapaho Tribe v. Wyoming . . . . . . . . . . . . . . . . . . . . . . 1024
Nutraceutical Corp. v. Lambert . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Nyangau v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Nyce, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Obduskey v. McCarthy & Holthus LLP . . . . . . . . . . . . . . . . . . . . 1029
Obenland; Jensen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
O'Brien; Bugoni v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Ocasio; Young v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
O'Connor v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Ocwen Loan Servicing, LLC; Tyler v. . . . . . . . . . . . . . . . . . . . . . 1006
Odom v. Adger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Offce of Personnel Mgmt.; O'Leary v. . . . . . . . . . . . . . . . . . . . . . 1046
Ohio v. American Express Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . 529
xxiv TABLE OF CASES REPORTED
Page
Ohio ex rel. McKinney v. Judge, Defance Cty. Ct. of Common Pleas 1006
Ohio ex rel. McKinney v. Schmenk . . . . . . . . . . . . . . . . . . . . . . . . 1006
Ojmar US, LLC; Security People, Inc. v. . . . . . . . . . . . . . . . . . . . 1017
Okhio v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
O'Leary v. Offce of Personnel Mgmt. . . . . . . . . . . . . . . . . . . . . . . 1046
Olivier v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
O'Neal v. Clarke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Ong Vue v. Dowling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Ontiveros-Cedillo v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1026
Opta Corp. v. Daewoo Electronics America, Inc. . . . . . . . . . . . . . 1004
Oracle USA, Inc.; Rimini Street, Inc. v. . . . . . . . . . . . . . . . . . . . . 1058
Orage v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Oregon; Armas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Oregon; Leonard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1055
Oregon Dept. of Ed.; M. C. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Ortega Melendres; Sheridan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Ortiz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
Oscar v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Owens v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Ozoskey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Pacifc Gas & Electric Co. v. United States . . . . . . . . . . . . . . . . . 1001
Parking Violation Bureau; McHenry v. . . . . . . . . . . . . . . . . . . . . . 1007
Parkinson v. Department of Justice . . . . . . . . . . . . . . . . . . . . . . . 1003
Pasillas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Patrick v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Patterson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Pauly v. White . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Pavon v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Peede v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Pennsylvania; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Pennsylvania; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Pennsylvania; Donahue v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Pennsylvania; Frederick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Pennsylvania; Strong v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Pennsylvania; Tedesco v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
People's Counsel of Baltimore County; Geddes v. . . . . . . . . . . 1018,1054
Pepper; Apple Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Pereira v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Perez; Abbott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 579
Perez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Perez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Perez Duenas v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Perry; Morton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Perry; Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
TABLE OF CASES REPORTED xxv
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Perry v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Pettaway v. Teachers Ins. and Annuity Assn. of America . . . . . . 1055
Peyton v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Philadelphia; Fulton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056
Phillip v. McArdle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Phillips v. Trump . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1048
Pimentel v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Pina v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Pioneer Centres Holding Co. v. Alerus Financial, N. A. . . . . . . . . 1056
Piper; Linehan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020,1055
Piszcz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Plaketta v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
PNC Bank; Sterba v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Podobnik v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Poyson; Ryan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Pregnancy and Family Resource Center v. Becerra . . . . . . . . . . . 1027
President of U. S.; Igartua v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
President of U. S. v. International Refugee Assistance Project . . 1028
President of U. S.; International Refugee Assistance Project v. 1028
President of U. S.; Phillips v. . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1048
Preston v. Acosta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Pretlow v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Prewitt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Prieto v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Qorane v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Raa, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002,1055
Raemisch; Brooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Rafay v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Ramirez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1032
Ramirez Galvan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Ramirez-Hidalgo v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1013
Ramos v. Connecticut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Rauner; Riffey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Raybon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Raza v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Reaves v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Reddi v. Hughes & Hughes LLP . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Reed v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Reed v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Reed v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Renteria-Martinez v. United States . . . . . . . . . . . . . . . . . . . . . . . 1012
Republic of Hungary; de Csepel v. . . . . . . . . . . . . . . . . . . . . . . . . 1014
Republic of Sudan v. Harrison . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Reverse Mortgage Solutions; Gillespie v. . . . . . . . . . . . . . . . . . . . 1013
xxvi TABLE OF CASES REPORTED
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Reyes-Ramirez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Rowan County v. Lund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035,1054
Saldana Castillo v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Salvador v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Rhines v. South Dakota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Rhodes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Rice v. Interfood, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Rich v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Richards v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Richardson v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Richardson-Hoeg v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1032
Richmond v. Coleman Cable, LLC . . . . . . . . . . . . . . . . . . . . . . . . 1003
Riffey v. Rauner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Riley v. Calloway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Riley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032,1033
Rimini Street, Inc. v. Oracle USA, Inc. . . . . . . . . . . . . . . . . . . . . 1058
Ringgold v. Sankary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Rios v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030,1032
Rivera-Cruz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Riviera Beach; Lozman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Roberson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Roberts v. AT&T Mobility LLC . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Roberts v. FNB South of Alma, Ga. . . . . . . . . . . . . . . . . . . . . 1005,1054
Robinson; Group v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Robinson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Rochford v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Rodriguez v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Rodriguez Vazquez v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Roeder v. Schmidt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Roosevelt W. v. Los Angeles Cty. Dept. of Children & Fam. Servs. 1047
Rosado Dejesus v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Rosales-Mireles v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 129
Rose v. U. S. Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Rubio-Sorto v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Rucho v. Common Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Ruiz-Dominguez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Ruiz-Rivera v. Assured Guarantee Corp. . . . . . . . . . . . . . . . . . . . 1011
Ruiz-Rivera v. Lex Claims, LLC . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Runnels v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Russell v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Ryan v. Poyson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Sadler v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Said v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Salazar-Valencia v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1008
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Sampson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Santa Ana; Manuel Lopez v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1021,1055
Sessions; Garcia Garcia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003,1004
Sessions; Khalil v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Sessions; Martinez Cazun v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
San Bernardino; Cotton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Sandia v. Walmart Stores . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Sands v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Sankary; Ringgold v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Santa Cruz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Santucci v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Sargent; Koch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Sause v. Bauer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Scheidler, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Schmenk; Ohio ex rel. McKinney v. . . . . . . . . . . . . . . . . . . . . . . . 1006
Schmidt; Roeder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Schneider v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Schneider National, Inc.; Beavers v. . . . . . . . . . . . . . . . . . . . . . . . 1012
Scopelliti v. Tampa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Scott; Knick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057
Scott v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Scotton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Scuderi v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Sealed Appellant v. Sealed Appellee . . . . . . . . . . . . . . . . . . . . . . 1002
Sealed Defendant v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1028
Secretary of Health and Human Services v. Allina Health Services 1058
Secretary of Labor; Preston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Secretary of Navy; Harkness v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Secretary of Treasury; Green v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
SEC v. Bandimere . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
SEC; Cerny v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
SEC; Grace v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
SEC; Lorenzo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
SEC; Lucia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
SEC; McDuff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Security People, Inc. v. Ojmar US, LLC . . . . . . . . . . . . . . . . . . . . 1017
Segaline v. Washington Dept. of Labor and Industries . . . . . . . . . 1018
Sellers; Tharpe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Sessions; Alias v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Sessions; Chasson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Sessions; Coates v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Sessions; Elinzano-Gonzales v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Sessions; Gaas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Sessions; Hason v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
xxviii TABLE OF CASES REPORTED
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Sessions; Pereira v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Sessions; Qorane v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Sessions; Rodriguez Vazquez v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Sessions; Saldana Castillo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Sessions; Simmons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Sessions; Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Sessions; Vazquez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
Sevion-El, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Sexton v. Beaudreaux . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961
S. F. v. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Sharpe v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Sharp Image Gaming v. Shingle Springs Band of Miwok Indians 1017
Shave v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Shell Oil Co.; Specialty Fertilizer Products, LLC v. . . . . . . . . . . . 1017
Sheridan v. Ortega Melendres . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Shingle Springs Band of Miwok Indians; Sharp Image Gaming v. 1017
Siegel, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Sierra Pacifc Industries, Inc. v. United States . . . . . . . . . . . . . . . 1016
Simmons v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Simmons v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Simmons v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Sims; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046,1057
Sinclair Community College; Martin v. . . . . . . . . . . . . . . . . . . . . . 1021
Singh v. Fernandes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Sivak v. Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Slater v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Smiley; E. I. du Pont de Nemours & Co. v. . . . . . . . . . . . . . . . . . 1033
Smith, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Smith v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023,1032
Smotherman, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Snow; Bernstein, Shur, Sawyer & Nelson, P. A. v. . . . . . . . . . . . . 1017
SNR Wireless LicenseCo, LLC v. FCC . . . . . . . . . . . . . . . . . . . . 1016
Solano-Hernandez v. United States . . . . . . . . . . . . . . . . . . . . . . . 1027
Solt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Soria v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Soro v. Keyes Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
South Dakota; Rhines v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
South Dakota v. Wayfair, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Spalding v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Specialty Fertilizer Products, LLC v. Shell Oil Co. . . . . . . . . . . . 1017
Spencer; Harkness v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Spriggs v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Stanford v. Browne . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003,1054
Stanford v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010,1032
TABLE OF CASES REPORTED xxix
Page
Stanley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Stanley v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Stansell v. Eppinger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
State, County, and Municipal Employees; Janus v. . . . . . . . . . . . . 878
Steager; Dawson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Steele v. Thomas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Sterba v. PNC Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Stevens v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Stevenson v. Bisbee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Stitt; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046,1057
Strang v. Ford Motor Co. General Retirement Plan . . . . . . . . . . . 1016
Strempler v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Strong v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
Sturgeon v. Frost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Sublett v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Subway Restaurants, Inc. v. Warciak . . . . . . . . . . . . . . . . . . . . . . 1019
Sudan v. Harrison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Sughrue v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Superintendent of penal or correctional institution. See name or
title of superintendent.
Sutton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Swaggerty v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Swenson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Tampa; Scopelliti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Taylor; Furber v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Taylor v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Teachers Ins. and Annuity Assn. of America; Pettaway v. . . . . . . 1055
Tedesco v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Tennessee; Irick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Tennessee Valley Authority; Thacker v. . . . . . . . . . . . . . . . . . 1057,1058
Tennessee Wine and Spirits Retailers Assn. v. Byrd . . . . . . . . . . 1058
Terrell, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Teva Pharmaceuticals USA, Inc.; Helsinn Healthcare S. A. v. . . . 1015
Texas; Acker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Texas; Beason v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Texas; Hankston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Texas; Pavon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Texas; Reed v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Thacker v. Tennessee Valley Authority . . . . . . . . . . . . . . . . . 1057,1058
Thanh Dao v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Tharpe v. Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Thee New Dollhouse v. Degidio . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Thomas v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Thomas v. Perry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1054
xxx TABLE OF CASES REPORTED
Page
Thomas v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Trump; Phillips v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008,1048
United States. See name of other party.
Thomas; Steele v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Thomas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Thompson; Buxton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Thompson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029,1032
Threat v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Threet v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Timbes v. Deutsche Bank National Trust Co. . . . . . . . . . . . . . 1018,1054
Timbs v. Indiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002,1054
Tirat-Gefen v. Batista Almeida . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Tizoc v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Toney v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Torres; Bergdoll v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Torres-Garza v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Total Gas & Power N. A., Inc. v. Federal Energy Reg. Comm'n 1003
Trejo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Troy-McKoy v. University of Ill. . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Trump v. Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 667
Trump; Igartua v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Trump v. International Refugee Assistance Project . . . . . . . . . . . 1028
Trump; International Refugee Assistance Project v. . . . . . . . . . . 1028
21st Mortgage Corp.; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Tyler v. Ocwen Loan Servicing, LLC . . . . . . . . . . . . . . . . . . . . . . 1006
Tyskiewiez; Vey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Tyson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Ulbricht v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
Union. For labor union, see name of trade.
Union Pacifc R. Co. v. EEOC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Union Pacifc R. Co.; United States v. . . . . . . . . . . . . . . . . . . . . . . 1033
U. S. Court of Appeals; Rose v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
U. S. District Court; Dekom v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
U. S. District Court; United States v. . . . . . . . . . . . . . . . . . . . . . . 1045
Valdez Perez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007,1045
Vey v. Tyskiewiez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Viera v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
United States Fish and Wildlife Service; Weyerhaeuser Co. v. . . . 1053
Universal Processing Services of Wisc., LLC v. FTC . . . . . . . . . . 1017
University of Ill.; Troy-McKoy v. . . . . . . . . . . . . . . . . . . . . . . . . . 1045
UTE Indian Tribe of the Uintah and Ouray Reservation; Harvey v. 1014
Vannoy; Broadway v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Vasterling; Williston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Vazquez v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017
TABLE OF CASES REPORTED xxxi
Page
Villa v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Villar v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Villarreal-Garcia v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Viola v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Virginia; Currier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 493
Virginia; Mattison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Virginia; Reed v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Vrh v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Vue v. Dowling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
W. v. Los Angeles County Dept. of Children and Family Services 1047
W. v. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Williams, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Williams; Alexander v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Walker v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Wall-Street.com, LLC; Fourth Estate Public Beneft Corp. v. 1029,1053
Walmart Stores; Sandia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Warciak; Subway Restaurants, Inc. v. . . . . . . . . . . . . . . . . . . . . . 1019
Warden. See name of warden.
Warren v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Washington; Abela v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Washington; Arlene's Flowers and Gifts v. . . . . . . . . . . . . . . . . . . 1013
Washington; Arlene's Flowers, Inc. v. . . . . . . . . . . . . . . . . . . . . . . 1013
Washington v. Diamond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Washington; Perez Duenas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Washington; Rafay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Washington; Stanley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Washington v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Washington Dept. of Labor and Industries; Segaline v. . . . . . . . . 1018
Washington State Dept. of Licensing v. Cougar Den, Inc. . . . . . . 1015
Wass v. Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Watford v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Watkins v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Watkins v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Wayfair, Inc.; South Dakota v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Weible v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Weis v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Wei Zhou v. Marquette Univ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
WesternGeco LLC v. ION Geophysical Corp. . . . . . . . . . . . . . . . . 407
Wetzel; Bozic v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Weyerhaeuser Co. v. United States Fish and Wildlife Service . . . 1053
White; Pauly v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
White v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Whitford; Gill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Wilford v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
xxxii TABLE OF CASES REPORTED
Page
Williams v. Florida Dept. of Corrections . . . . . . . . . . . . . . . . . . . 1054
Williams v. 21st Mortgage Corp. . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Williams v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032,1033
Williston v. Vasterling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Wilmington Trust, N. A. v. Momentive Performance Materials, Inc. 1004
Wilson v. Gaetz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Wilson v. Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Wilson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Wingo v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Wisconsin; A. S. F. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Wisconsin; K. H. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Wisconsin; M. W. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Wisconsin Central Ltd. v. United States . . . . . . . . . . . . . . . . . . . 274
Wisconsin Dept. of Children and Families; Bradley v. . . . . . . 1022,1055
Woodhull v. Mascarella . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1018
Woodson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Worth v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Wright v. Bayview Loan Servicing, LLC . . . . . . . . . . . . . . . . . . . 1047
Wynn Las Vegas, LLC v. Cesarz . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Wyoming; Eastern Shoshone Tribe v. . . . . . . . . . . . . . . . . . . . . . . 1024
Wyoming; Herrera v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Wyoming; Northern Arapaho Tribe v. . . . . . . . . . . . . . . . . . . . . . 1024
Young v. Ocasio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
Yum! Brands; Blair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Zack v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Zanders v. Indiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Zhou v. Marquette Univ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Zhuang v. Appellate Div., Superior Court of Cal., Los Angeles Cty. 1022
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2017
MINNESOTA VOTERS ALLIANCE et al. v. MANSKY
et al.
certiorari to the united states court of appeals for
the eighth circuit
No. 16–1435. Argued February 28, 2018—Decided June 14, 2018
Minnesota law prohibits individuals, including voters, from wearing a “political
badge, political button, or other political insignia” inside a polling
place on Election Day. Minn. Stat. § 211B.11(1) (Supp. 2017). This “political
apparel ban” covers articles of clothing and accessories with political
insignia upon them. State election judges have the authority to
decide whether a particular item falls within the ban. Violators are
subject to a civil penalty or prosecution for a petty misdemeanor.
Days before the November 2010 election, petitioner Minnesota Voters
Alliance (MVA) and other plaintiffs challenged the ban in Federal District
Court on First Amendment grounds. In response to the lawsuit,
the State distributed an Election Day Policy to election offcials providing
guidance on enforcement of the ban. The Election Day Policy specifed
examples of prohibited apparel to include items displaying the name
of a political party, items displaying the name of a candidate, items supporting
or opposing a ballot question, “[i]ssue oriented material designed
to infuence or impact voting,” and “[m]aterial promoting a group
with recognizable political views.” App. to Pet. for Cert. I–1 to I–2.
On Election Day, some voters ran into trouble with the ban, including
petitioner Andrew Cilek, who allegedly was turned away from the polls
1
2 MINNESOTA VOTERS ALLIANCE v. MANSKY
Syllabus
for wearing a “Please I. D. Me” button and a T-shirt bearing the words
“Don't Tread on Me” and a Tea Party Patriots logo.
MVA and the other plaintiffs argued that the ban was unconstitutional
both on its face and as applied to their particular items of apparel. The
District Court granted the State's motion to dismiss, and the Eighth
Circuit affrmed the dismissal of the facial challenge and remanded the
case for further proceedings on the as-applied challenge. The District
Court granted summary judgment to the State on the as-applied challenge,
and the Eighth Circuit affrmed. MVA, Cilek, and petitioner
Susan Jeffers (collectively MVA) petitioned for review of their facial
First Amendment claim only.
Held: Minnesota's political apparel ban violates the Free Speech Clause of
the First Amendment. Pp. 11–23.
(a) Because the political apparel ban applies only in a specifc
location—the interior of a polling place—it implicates the Court's
“ `forum based' approach for assessing restrictions that the government
seeks to place on the use of its property.” International Soc. for
Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 678. A polling place
in Minnesota qualifes as a nonpublic forum under the Court's precedents.
As such it may be subject to content-based restrictions on
speech, see, e. g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc.,
473 U. S. 788, 806–811, so long as the restrictions are “reasonable and
not an effort to suppress expression merely because public offcials oppose
the speaker's view,” Perry Ed. Assn. v. Perry Local Educators'
Assn., 460 U. S. 37, 46. Because the text of the statute makes no distinction
based on the speaker's political persuasion, the question is
whether the apparel ban is “reasonable in light of the purpose served
by the forum”: voting. Cornelius, 473 U. S., at 806. Pp. 11–13.
(b) Minnesota's prohibition on political apparel serves a permissible
objective. In Burson v. Freeman, 504 U. S. 191, the Court upheld a
Tennessee law imposing a 100-foot zone around polling place entrances
in which no person could solicit votes, distribute campaign materials, or
“display . . . campaign posters, signs or other campaign materials.” Id.,
at 193–194 (plurality opinion). In fnding that the law withstood even
strict scrutiny, the Burson plurality—whose analysis was endorsed by
Justice Scalia's opinion concurring in the judgment—emphasized the
problems of fraud, voter intimidation, confusion, and general disorder
that had plagued polling places in the past. Against that historical
backdrop, the plurality and Justice Scalia upheld Tennessee's determination
that a campaign-free zone outside the polls was necessary to secure
the advantages of the secret ballot and protect the right to vote.
Cite as: 585 U. S. 1 (2018) 3
Syllabus
MVA argues that Burson considered only active campaigning outside
the polling place by campaign workers and others trying to engage
voters approaching the polls, while Minnesota's ban prohibits passive
self-expression by voters themselves when voting. But although the
plurality and Justice Scalia in Burson did not expressly address the
application of the Tennessee law to apparel—or consider the interior of
the polling place as opposed to its environs—the Tennessee law swept
broadly to ban even the plain “display” of a campaign-related message,
and the Burson Court upheld the law in full. The plurality's conclusion
that the State was warranted in designating an area for the voters as
“their own” as they enter the polling place, id., at 210, suggests an interest
more signifcant, not less, within that place.
No basis exists for rejecting Minnesota's determination that some
forms of campaign advocacy should be excluded from the polling place in
order to set it aside as “an island of calm in which voters can peacefully
contemplate their choices.” Brief for Respondents 43. Casting a vote
is a weighty civic act, and the State may reasonably decide that the
interior of the polling place should refect the distinction between voting
and campaigning. And while the Court has noted the “nondisruptive”
nature of expressive apparel in more mundane settings, see, e. g., Board
of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569,
576, those observations do not speak to the unique context of a polling
place on Election Day. Pp. 13–16.
(c) But the line the State draws must be reasonable. The State
therefore must be able to articulate some sensible basis for distinguishing
what may come in from what must stay out. The unmoored use
of the term “political” in the Minnesota law, combined with haphazard
interpretations the State has provided in offcial guidance and representations
to this Court, cause Minnesota's restriction to fail this test.
The statute does not defne the term “political,” a word that can
broadly encompass anything “of or relating to government, a government,
or the conduct of governmental affairs.” Webster's Third New
International Dictionary 1755. The State argues that the apparel ban
should be interpreted more narrowly to proscribe “only words and symbols
that an objectively reasonable observer would perceive as conveying
a message about the electoral choices at issue in [the] polling place.”
Brief for Respondents 13. At the same time, the State argues that the
category of “political” apparel is not limited to campaign apparel.
The Court considers a State's authoritative constructions in interpreting
a state law. But far from clarifying the indeterminate scope of the
provision, Minnesota's “electoral choices” construction introduces confusing
line-drawing problems. For specifc examples of what messages
4 MINNESOTA VOTERS ALLIANCE v. MANSKY
Syllabus
are banned under that standard, the State points to the Election Day
Policy. The frst three categories of prohibited items in the Policy are
clear. But the next category—“issue oriented material designed to infuence
or impact voting”—raises more questions than it answers. The
State takes the position that any subject on which a political candidate
or party has taken a stance qualifes as an “issue” within the meaning
of that category. Such a rule—whose fair enforcement requires an election
judge to maintain a mental index of the platforms and positions of
every candidate and party on the ballot—is not reasonable.
The next broad category in the Election Day Policy—any item “promoting
a group with recognizable political views”—makes matters
worse. The State does not confne that category to groups that have
endorsed a candidate or taken a position on a ballot question. As a
result, any number of associations, educational institutions, businesses,
and religious organizations could have an opinion on an “issue confronting
voters.” The State represents that the ban is limited to apparel
promoting groups with “well-known” political positions. But that requirement
only increases the potential for erratic application, as its enforcement
may turn in signifcant part on the background knowledge of
the particular election judge applying it.
It is “self-evident” that an indeterminate prohibition carries with it
“[t]he opportunity for abuse, especially where [it] has received a virtually
open-ended interpretation.” Jews for Jesus, 482 U. S., at 576. The
discretion election judges exercise in enforcing the ban must be guided
by objective, workable standards. Without them, an election judge's
own politics may shape his views on what counts as “political.” And if
voters experience or witness episodes of unfair or inconsistent enforcement
of the ban, the State's interest in maintaining a polling place free
of distraction and disruption would be undermined by the very measure
intended to further it. Thus, if a State wishes to set its polling places
apart as areas free of partisan discord, it must employ a more discernible
approach than the one offered by Minnesota here. Pp. 16–23.
849 F. 3d 749, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Kennedy,
Thomas, Ginsburg, Alito, Kagan, and Gorsuch, JJ., joined. Sotomayor,
J., fled a dissenting opinion, in which Breyer, J., joined, post,
p. 26.
J. David Breemer argued the cause for petitioners. With
him on the briefs were Wencong Fa, Deborah J. La Fetra,
Oliver J. Dunford, and Erick G. Kaardal.
Cite as: 585 U. S. 1 (2018) 5
Opinion of the Court
Daniel P. Rogan argued the cause for respondents. With
him on the brief were Beth A. Stack, Elaine J. Goldenberg,
Ginger D. Anders, Nathan J. Hartshorn, Assistant Attorney
General of Minnesota, and Robert B. Roche.*
Chief Justice Roberts delivered the opinion of the
Court.
Under Minnesota law, voters may not wear a political
badge, political button, or anything bearing political insignia
inside a polling place on Election Day. The question presented
is whether this ban violates the Free Speech Clause
of the First Amendment.
*Briefs of amici curiae urging reversal were fled for the American
Civil Liberties Union et al. by David D. Cole, Lee Rowland, John B. Gordon,
Lisa S. Blatt, and Robert J. Katerberg; for the American Civil Rights
Union et al. by John J. Park, Jr., and Kenneth A. Klukowski; for the
Cato Institute et al. by Ilya Shapiro, John W. Whitehead, and Manuel S.
Klausner; for the Goldwater Institute by Timothy Sandefur and Christina
Sandefur; for the Institute for Free Speech by Allen Dickerson, Zac
Morgan, and Owen Yeates; for the James Madison Center for Free Speech,
Inc., by James Bopp, Jr., and Richard E. Coleson; for the Justice and
Freedom Fund by James L. Hirsen and Deborah J. Dewart; and for the
Southeastern Legal Foundation et al. by Kimberly S. Hermann and Braden
Boucek.
Briefs of amici curiae urging affrmance were fled for the State of
Tennessee et al. by Herbert H. Slatery III, Attorney General of Tennessee,
Andrée S. Blumstein, Solicitor General, Jonathan David Shaub, Assistant
Solicitor General, and Sarah K. Campbell, and by the Attorneys General
for their respective States as follows: Curtis T. Hill, Jr., of Indiana, Derek
Schmidt of Kansas, Jeff Landry of Louisiana, Bill Schuette of Michigan,
Jim Hood of Mississippi, Timothy C. Fox of Montana, Douglas J. Peterson
of Nebraska, Peter F. Kilmartin of Rhode Island, Ken Paxton of Texas,
and Sean D. Reyes of Utah; for the Brennan Center for Justice at NYU
School of Law et al. by Daniel I. Weiner and Wendy R. Weiser; for Campaign
Legal Center by Paul M. Smith, Adav Noti, and Mark P. Gaber;
and for the National Association of Counties et al. by Charles A. Rothfeld,
Andrew J. Pincus, Michael B. Kimberly, Paul W. Hughes, Lisa Soronen,
and Eugene R. Fidell.
6 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
I
A
Today, Americans going to their polling places on Election
Day expect to wait in a line, briefy interact with an election
offcial, enter a private voting booth, and cast an anonymous
ballot. Little about this ritual would have been familiar to
a voter in the mid-to-late nineteenth century. For one thing,
voters typically deposited privately prepared ballots at the
polls instead of completing offcial ballots on-site. These
pre-made ballots often took the form of “party tickets”—
printed slates of candidate selections, often distinctive in appearance,
that political parties distributed to their supporters
and pressed upon others around the polls. See E. Evans,
A History of the Australian Ballot System in the United
States 6–11 (1917) (Evans); R. Bensel, The American Ballot
Box in the Mid-Nineteenth Century 14–15 (2004) (Bensel).
The physical arrangement confronting the voter was also
different. The polling place often consisted simply of a “voting
window” through which the voter would hand his ballot
to an election offcial situated in a separate room with the
ballot box. Id., at 11, 13; see, e. g., C. Rowell, Digest of
Contested-Election Cases in the Fifty-First Congress, H. R.
Misc. Doc. No. 137, 51st Cong., 2d Sess., 224 (1891) (report of
Rep. Lacey) (considering whether “the ability to reach the
window and actually tender the ticket to the [election]
judges” is “essential in all cases to constitute a good offer to
vote”); Holzer, Election Day 1860, Smithsonian Magazine
(Nov. 2008), pp. 46, 52 (describing the interior voting window
on the third foor of the Springfeld, Illinois courthouse
where Abraham Lincoln voted). As a result of this arrangement,
“the actual act of voting was usually performed in the
open, ” frequently within view of interested onlookers.
Rusk, The Effect of the Australian Ballot Reform on Split
Ticket Voting: 1876–1908, Am. Pol. Sci. Rev. 1220, 1221 (1970)
(Rusk); see Evans 11–13.
Cite as: 585 U. S. 1 (2018) 7
Opinion of the Court
As documented in Burson v. Freeman, 504 U. S. 191 (1992)
(plurality opinion), “[a]pproaching the polling place under
this system was akin to entering an open auction place.” Id.,
at 202. The room containing the ballot boxes was “usually
quiet and orderly,” but “[t]he public space outside the window
. . . was chaotic.” Bensel 13. Electioneering of all
kinds was permitted. See id., at 13, 16–17; R. Dinkin, Election
Day: A Documentary History 19 (2002). Crowds would
gather to heckle and harass voters who appeared to be supporting
the other side. Indeed, “[u]nder the informal conventions
of the period, election etiquette required only that
a `man of ordinary courage' be able to make his way to the
voting window.” Bensel 20–21. “In short, these early elections
were not a very pleasant spectacle for those who believed
in democratic government.” Burson, 504 U. S., at 202
(plurality opinion) (internal quotation marks omitted).
By the late nineteenth century, States began implementing
reforms to address these vulnerabilities and improve the reliability
of elections. Between 1888 and 1896, nearly every
State adopted the secret ballot. See id., at 203–205. Because
voters now needed to mark their state-printed ballots
on-site and in secret, voting moved into a sequestered space
where the voters could “deliberate and make a decision in
. . . privacy.” Rusk 1221; see Evans 35; 1889 Minn. Stat. ch.
3, §§ 27–28, p. 21 (regulating, as part of Minnesota's secret
ballot law, the arrangement of voting compartments inside
the polling place). In addition, States enacted “viewpointneutral
restrictions on election-day speech” in the immediate
vicinity of the polls. Burson, 504 U. S., at 214–215 (Scalia,
J., concurring in judgment) (by 1900, 34 of 45 States had such
restrictions). Today, all 50 States and the District of Columbia
have laws curbing various forms of speech in and
around polling places on Election Day.
Minnesota's such law contains three prohibitions, only one
of which is challenged here. See Minn. Stat. § 211B.11(1)
8 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
(Supp. 2017). The frst sentence of § 211B.11(1) forbids any
person to “display campaign material, post signs, ask, solicit,
or in any manner try to induce or persuade a voter within a
polling place or within 100 feet of the building in which a
polling place is situated” to “vote for or refrain from voting
for a candidate or ballot question.” The second sentence
prohibits the distribution of “political badges, political buttons,
or other political insignia to be worn at or about the
polling place.” The third sentence—the “political apparel
ban”—states that a “political badge, political button, or other
political insignia may not be worn at or about the polling
place.” Versions of all three prohibitions have been on the
books in Minnesota for over a century. See 1893 Minn.
Laws ch. 4, § 108, pp. 51–52; 1912 Minn. Laws, 1st Spec. Sess.,
ch. 3, p. 24; 1988 Minn. Laws ch. 578, Art. 3, § 11, p. 594
(reenacting the prohibitions as part of § 211B.11).
There is no dispute that the political apparel ban applies
only within the polling place, and covers articles of clothing
and accessories with “political insignia” upon them. Minnesota
election judges—temporary government employees
working the polls on Election Day—have the authority to
decide whether a particular item falls within the ban. App.
to Pet. for Cert. I–1. If a voter shows up wearing a prohibited
item, the election judge is to ask the individual to conceal
or remove it. Id., at I–2. If the individual refuses, the
election judge must allow him to vote, while making clear
that the incident “will be recorded and referred to appropriate
authorities.” Ibid. Violators are subject to an administrative
process before the Minnesota Offce of Administrative
Hearings, which, upon fnding a violation, may issue a
reprimand or impose a civil penalty. Minn. Stat. §§ 211B.32,
211B.35(2) (2014). That administrative body may also refer
the complaint to the county attorney for prosecution as a
petty misdemeanor; the maximum penalty is a $300 fne.
§§ 211B.11(4) (Supp. 2017), 211B.35(2) (2014), 609.02(4a)
(2016).
Cite as: 585 U. S. 1 (2018) 9
Opinion of the Court
B
Petitioner Minnesota Voters Alliance (MVA) is a nonproft
organization that “seeks better government through election
reforms.” Pet. for Cert. 5. Petitioner Andrew Cilek is a
registered voter in Hennepin County and the executive director
of MVA; petitioner Susan Jeffers served in 2010 as a
Ramsey County election judge. Five days before the November
2010 election, MVA, Jeffers, and other likeminded
groups and individuals fled a lawsuit in Federal District
Court challenging the political apparel ban on First Amendment
grounds. The groups—calling themselves “Election
Integrity Watch” (EIW)—planned to have supporters wear
buttons to the polls printed with the words “Please I. D. Me,”
a picture of an eye, and a telephone number and web address
for EIW. (Minnesota law does not require individuals to
show identifcation to vote.) One of the individual plaintiffs
also planned to wear a “Tea Party Patriots” shirt. The District
Court denied the plaintiffs' request for a temporary
restraining order and preliminary injunction and allowed the
apparel ban to remain in effect for the upcoming election.
In response to the lawsuit, offcials for Hennepin and Ramsey
Counties distributed to election judges an “Election Day
Policy,” providing guidance on the enforcement of the political
apparel ban. The Minnesota Secretary of State also distributed
the Policy to election offcials throughout the State.
The Policy specifed that examples of apparel falling within
the ban “include, but are not limited to”:
• “Any item including the name of a political party in Minnesota,
such as the Republican, [Democratic-Farmer-
Labor], Independence, Green or Libertarian parties.
• Any item including the name of a candidate at any
election.
• Any item in support of or opposition to a ballot question
at any election.
10 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
• Issue oriented material designed to infuence or impact
voting (including specifcally the `Please I. D. Me'
buttons).
• Material promoting a group with recognizable political
views (such as the Tea Party, MoveOn.org, and so on).”
App. to Pet. for Cert. I–1 to I–2.
As alleged in the plaintiffs' amended complaint and supporting
declarations, some voters associated with EIW ran
into trouble with the ban on Election Day. One individual
was asked to cover up his Tea Party shirt. Another refused
to conceal his “Please I. D. Me” button, and an election judge
recorded his name and address for possible referral. And
petitioner Cilek—who was wearing the same button and a
T-shirt with the words “Don't Tread on Me” and the Tea
Party Patriots logo—was twice turned away from the polls
altogether, then fnally permitted to vote after an election
judge recorded his information.
Back in court, MVA and the other plaintiffs (now joined by
Cilek) argued that the ban was unconstitutional both on its
face and as applied to their apparel. The District Court
granted the State's motions to dismiss, and the Court of Appeals
for the Eighth Circuit affrmed in part and reversed in
part. Minnesota Majority v. Mansky, 708 F. 3d 1051 (2013).
In evaluating MVA's facial challenge, the Court of Appeals
observed that this Court had previously upheld a state law
restricting speech “related to a political campaign” in a 100-
foot zone outside a polling place; the Court of Appeals determined
that Minnesota's law likewise passed constitutional
muster. Id., at 1056–1058 (quoting Burson, 504 U. S., at 197
(plurality opinion)). The Court of Appeals reversed the dismissal
of the plaintiffs' as-applied challenge, however, fnding
that the District Court had improperly considered matters
outside the pleadings. 708 F. 3d, at 1059. Judge Shepherd
concurred in part and dissented in part. In his view, Minnesota's
broad restriction on political apparel did not “rationCite
as: 585 U. S. 1 (2018) 11
Opinion of the Court
ally and reasonably” serve the State's asserted interests.
Id., at 1062. On remand, the District Court granted summary
judgment for the State on the as-applied challenge,
and this time the Court of Appeals affrmed. Minnesota
Majority v. Mansky, 849 F. 3d 749 (2017).
MVA, Cilek, and Jeffers (hereinafter MVA) petitioned for
review of their facial First Amendment claim only. We
granted certiorari. 583 U. S. 972 (2017).
II
The First Amendment prohibits laws “abridging the freedom
of speech.” Minnesota's ban on wearing any “political
badge, political button, or other political insignia” plainly restricts
a form of expression within the protection of the
First Amendment.
But the ban applies only in a specifc location: the interior
of a polling place. It therefore implicates our “ `forum
based' approach for assessing restrictions that the government
seeks to place on the use of its property.” International
Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S.
672, 678 (1992) (ISKCON). Generally speaking, our cases
recognize three types of government-controlled spaces: traditional
public forums, designated public forums, and nonpublic
forums. In a traditional public forum—parks,
streets, sidewalks, and the like—the government may impose
reasonable time, place, and manner restrictions on private
speech, but restrictions based on content must satisfy
strict scrutiny, and those based on viewpoint are prohibited.
See Pleasant Grove City v. Summum, 555 U. S. 460, 469
(2009). The same standards apply in designated public
forums—spaces that have “not traditionally been regarded
as a public forum” but which the government has “intentionally
opened up for that purpose.” Id., at 469–470. In a
nonpublic forum, on the other hand—a space that “is not by
tradition or designation a forum for public communication”—
the government has much more fexibility to craft rules lim12
MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
iting speech. Perry Ed. Assn. v. Perry Local Educators'
Assn., 460 U. S. 37, 46 (1983). The government may reserve
such a forum “for its intended purposes, communicative or
otherwise, as long as the regulation on speech is reasonable
and not an effort to suppress expression merely because public
offcials oppose the speaker's view.” Ibid.
This Court employs a distinct standard of review to assess
speech restrictions in nonpublic forums because the government,
“no less than a private owner of property,” retains the
“power to preserve the property under its control for the use
to which it is lawfully dedicated.” Adderley v. Florida, 385
U. S. 39, 47 (1966). “Nothing in the Constitution requires
the Government freely to grant access to all who wish to
exercise their right to free speech on every type of Government
property without regard to the nature of the property
or to the disruption that might be caused by the speaker's
activities.” Cornelius v. NAACP Legal Defense & Ed.
Fund, Inc., 473 U. S. 788, 799–800 (1985). Accordingly, our
decisions have long recognized that the government may impose
some content-based restrictions on speech in nonpublic
forums, including restrictions that exclude political advocates
and forms of political advocacy. See id., at 806–811;
Greer v. Spock, 424 U. S. 828, 831–833, 838–839 (1976);
Lehman v. Shaker Heights, 418 U. S. 298, 303–304 (1974)
(plurality opinion); id., at 307–308 (Douglas, J., concurring
in judgment).
A polling place in Minnesota qualifes as a nonpublic
forum. It is, at least on Election Day, governmentcontrolled
property set aside for the sole purpose of voting.
The space is “a special enclave, subject to greater restriction.”
ISKCON, 505 U. S., at 680. Rules strictly govern
who may be present, for what purpose, and for how long.
See Minn. Stat. § 204C.06 (2014). And while the four-Justice
plurality in Burson and Justice Scalia's concurrence in the
judgment parted ways over whether the public sidewalks
and streets surrounding a polling place qualify as a nonpublic
forum, neither opinion suggested that the interior of the
Cite as: 585 U. S. 1 (2018) 13
Opinion of the Court
building was anything but. See 504 U. S., at 196–197, and
n. 2 (plurality opinion); id., at 214–216 (opinion of Scalia, J.).
We therefore evaluate MVA's First Amendment challenge
under the nonpublic forum standard. The text of the
apparel ban makes no distinction based on the speaker's
political persuasion, so MVA does not claim that the ban discriminates
on the basis of viewpoint on its face. The question
accordingly is whether Minnesota's ban on political
apparel is “reasonable in light of the purpose served by the
forum”: voting. Cornelius, 473 U. S., at 806.
III
A
We frst consider whether Minnesota is pursuing a permissible
objective in prohibiting voters from wearing particular
kinds of expressive apparel or accessories while inside the
polling place. The natural starting point for evaluating a
First Amendment challenge to such a restriction is this
Court's decision in Burson, which upheld a Tennessee law
imposing a 100-foot campaign-free zone around polling place
entrances. Under the Tennessee law—much like Minnesota's
buffer-zone provision—no person could solicit votes for
or against a candidate, party, or ballot measure, distribute
campaign materials, or “display . . . campaign posters, signs
or other campaign materials” within the restricted zone.
504 U. S., at 193–194 (plurality opinion). The plurality found
that the law withstood even the strict scrutiny applicable to
speech restrictions in traditional public forums. Id., at 211.
In his opinion concurring in the judgment, Justice Scalia argued
that the less rigorous “reasonableness” standard of review
should apply, and found the law “at least reasonable” in
light of the plurality's analysis. Id., at 216.
That analysis emphasized the problems of fraud, voter
intimidation, confusion, and general disorder that had
plagued polling places in the past. See id., at 200–204.
Against that historical backdrop, the plurality and Justice
Scalia upheld Tennessee's determination, supported
14 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
by overwhelming consensus among the States and “common
sense,” that a campaign-free zone outside the polls was “necessary”
to secure the advantages of the secret ballot and
protect the right to vote. Id., at 200, 206–208, 211. As the
plurality explained, “[t]he State of Tennessee has decided
that [the] last 15 seconds before its citizens enter the polling
place should be their own, as free from interference as
possible.” Id., at 210. That was not “an unconstitutional
choice.” Ibid.
MVA disputes the relevance of Burson to Minnesota's apparel
ban. On MVA's reading, Burson considered only “active
campaigning” outside the polling place by campaign
workers and others trying to engage voters approaching the
polls. Brief for Petitioners 36–37. Minnesota's law, by contrast,
prohibits what MVA characterizes as “passive, silent”
self-expression by voters themselves when voting. Reply
Brief 17. MVA also points out that the plurality focused
on the extent to which the restricted zone combated “voter
intimidation and election fraud,” 504 U. S., at 208—concerns
that, in MVA's view, have little to do with a prohibition on
certain types of voter apparel.
Campaign buttons and apparel did come up in the Burson
briefng and argument, but neither the plurality nor Justice
Scalia expressly addressed such applications of the law.1
Nor did either opinion specifcally consider the interior of the
1 The State of Tennessee represented that its prohibition on campaign
displays extended both to items of apparel and to voters. Tr. of Oral Arg.
in No. 90–1056, p. 33 (argument of Atty. Gen. Burson) (explaining that the
statute banned “[t]ee-shirts,” “campaign buttons,” and “hats” because such
items “implicate and invite the same problems,” and that voters would be
“asked to take campaign button[s] off as they go in”); see Brief for State
of Tennessee et al. as Amici Curiae 3, 28–30, and n. 3 (making the same
representation in the present case). The Burson plaintiff also emphasized
that the Tennessee law would cover apparel, including apparel worn
by voters, see Brief for Respondent in No. 90–1056, p. 3; Tr. of Oral Arg.
in No. 90–1056, p. 21, and Justice Stevens in dissent referred to the application
of the law to campaign buttons, see Burson, 504 U. S., at 218–219, 224.
Cite as: 585 U. S. 1 (2018) 15
Opinion of the Court
polling place as opposed to its environs, and it is true that
the plurality's reasoning focused on campaign activities of a
sort not likely to occur in an area where, for the most part,
only voters are permitted while voting. At the same time,
Tennessee's law swept broadly to ban even the plain “display”
of a campaign-related message, and the Court upheld
the law in full. The plurality's conclusion that the State was
warranted in designating an area for the voters as “their
own” as they enter the polling place suggests an interest
more signifcant, not less, within that place. Id., at 210.
In any event, we see no basis for rejecting Minnesota's
determination that some forms of advocacy should be excluded
from the polling place, to set it aside as “an island
of calm in which voters can peacefully contemplate their
choices.” Brief for Respondents 43. Casting a vote is a
weighty civic act, akin to a jury's return of a verdict, or a
representative's vote on a piece of legislation. It is a time
for choosing, not campaigning. The State may reasonably
decide that the interior of the polling place should refect
that distinction.
To be sure, our decisions have noted the “nondisruptive”
nature of expressive apparel in more mundane settings.
Board of Airport Comm'rs of Los Angeles v. Jews for Jesus,
Inc., 482 U. S. 569, 576 (1987) (so characterizing “the wearing
of a T-shirt or button that contains a political message” in
an airport); Tinker v. Des Moines Independent Community
School Dist., 393 U. S. 503, 508 (1969) (students wearing
black armbands to protest the Vietnam War engaged in “silent,
passive expression of opinion, unaccompanied by any
disorder or disturbance”). But those observations do not
speak to the unique context of a polling place on Election
Day. Members of the public are brought together at that
place, at the end of what may have been a divisive election
season, to reach considered decisions about their government
and laws. The State may reasonably take steps to ensure
that partisan discord not follow the voter up to the voting
16 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
booth, and distract from a sense of shared civic obligation at
the moment it counts the most. That interest may be
thwarted by displays that do not raise signifcant concerns
in other situations.
Other States can see the matter differently, and some do.2
The majority, however, agree with Minnesota that at least
some kinds of campaign-related clothing and accessories
should stay outside. 3 That broadly shared judgment is entitled
to respect. Cf. Burson, 504 U. S., at 206 (plurality opinion)
(fnding that a “widespread and time-tested consensus”
supported the constitutionality of campaign buffer zones).
Thus, in light of the special purpose of the polling place
itself, Minnesota may choose to prohibit certain apparel
there because of the message it conveys, so that voters may
focus on the important decisions immediately at hand.
B
But the State must draw a reasonable line. Although
there is no requirement of narrow tailoring in a nonpublic
forum, the State must be able to articulate some sensible
basis for distinguishing what may come in from what must
stay out. See Cornelius, 473 U. S., at 808–809. Here, the
unmoored use of the term “political” in the Minnesota law,
combined with haphazard interpretations the State has pro-
2 See, e. g., Ala. Secretary of State, 2018 Alabama Voter Guide 14 (voters
may wear “campaign buttons or T-shirts with political advertisements”);
2018 Va. Acts ch. 700, § 1 (prohibitions on exhibiting campaign material
“shall not be construed” to prohibit a voter “from wearing a shirt, hat, or
other apparel on which a candidate's name or a political slogan appears or
from having a sticker or button attached to his apparel on which a candidate's
name or a political slogan appears”); R. I. Bd. of Elections, Rules
and Regulations for Polling Place Conduct 3 (2016) (voters may “display
or wear any campaign or political party button, badge or other document
or item designed or tending to aid, injure or defeat any candidate for
public offce or any political party or any question,” but they must “immediately
exit the polling location without unreasonable delay” after voting).
3 See Appendix, infra.
Cite as: 585 U. S. 1 (2018) 17
Opinion of the Court
vided in offcial guidance and representations to this Court,
cause Minnesota's restriction to fail even this forgiving test.
Again, the statute prohibits wearing a “political badge, political
button, or other political insignia.” It does not defne
the term “political.” And the word can be expansive. It
can encompass anything “of or relating to government, a
government, or the conduct of governmental affairs,” Webster's
Third New International Dictionary 1755 (2002), or
anything “[o]f, relating to, or dealing with the structure or
affairs of government, politics, or the state,” American Heritage
Dictionary 1401 (3d ed. 1996). Under a literal reading
of those defnitions, a button or T-shirt merely imploring others
to “Vote!” could qualify.
The State argues that the apparel ban should not be read
so broadly. According to the State, the statute does not prohibit
“any conceivably `political' message” or cover “all `political'
speech, broadly construed.” Brief for Respondents 21,
23. Instead, the State interprets the ban to proscribe “only
words and symbols that an objectively reasonable observer
would perceive as conveying a message about the electoral
choices at issue in [the] polling place.” Id., at 13; see id., at
19 (the ban “applies not to any message regarding government
or its affairs, but to messages relating to questions of
governmental affairs facing voters on a given election day”).
At the same time, the State argues that the category of
“political” apparel is not limited to campaign apparel. After
all, the reference to “campaign material” in the frst sentence
of the statute—describing what one may not “display” in the
buffer zone as well as inside the polling place—implies that
the distinct term “political” should be understood to cover a
broader class of items. As the State's counsel explained to
the Court, Minnesota's law “expand[s] the scope of what is
prohibited from campaign speech to additional political
speech.” Tr. of Oral Arg. 50.
We consider a State's “authoritative constructions” in interpreting
a state law. Forsyth County v. Nationalist
18 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
Movement, 505 U. S. 123, 131 (1992). But far from clarifying
the indeterminate scope of the political apparel provision,
the State's “electoral choices” construction introduces confusing
line-drawing problems. Cf. Jews for Jesus, 482 U. S.,
at 575–576 (a resolution banning all “First Amendment activities”
in an airport could not be saved by a “murky” construction
excluding “airport-related” activity).
For specifc examples of what is banned under its standard,
the State points to the 2010 Election Day Policy—which it
continues to hold out as authoritative guidance regarding implementation
of the statute. See Brief for Respondents 22–
23. The frst three examples in the Policy are clear enough:
items displaying the name of a political party, items displaying
the name of a candidate, and items demonstrating “support of
or opposition to a ballot question.” App. to Pet. for Cert. I–2.
But the next example—“[i]ssue oriented material designed
to infuence or impact voting,” ibid.—raises more questions
than it answers. What qualifes as an “issue”? The answer,
as far as we can tell from the State's briefng and argument,
is any subject on which a political candidate or party
has taken a stance. See Tr. of Oral Arg. 37 (explaining that
the “electoral choices” test looks at the “issues that have
been raised” in a campaign “that are relevant to the election”).
For instance, the Election Day Policy specifcally
notes that the “Please I. D. Me” buttons are prohibited.
App. to Pet. for Cert. I–2. But a voter identifcation requirement
was not on the ballot in 2010, see Brief for Respondents
47, n. 24, so a Minnesotan would have had no
explicit “electoral choice” to make in that respect. The buttons
were nonetheless covered, the State tells us, because
the Republican candidates for Governor and Secretary of
State had staked out positions on whether photo identifcation
should be required. Ibid.; see App. 58–60.4
4 The State also maintains that the “Please I. D. Me” buttons were properly
banned because the buttons were designed to confuse other voters
Cite as: 585 U. S. 1 (2018) 19
Opinion of the Court
A rule whose fair enforcement requires an election judge
to maintain a mental index of the platforms and positions of
every candidate and party on the ballot is not reasonable.
Candidates for statewide and federal offce and major political
parties can be expected to take positions on a wide array
of subjects of local and national import. See, e. g., Democratic
Platform Committee, 2016 Democratic Party Platform
(approved July 2016) (stating positions on over 90 issues);
Republican Platform Committee, Republican Platform 2016
(approved July 2016) (similar). Would a “Support Our
Troops” shirt be banned, if one of the candidates or parties
had expressed a view on military funding or aid for veterans?
What about a “#MeToo” shirt, referencing the movement to
increase awareness of sexual harassment and assault? At
oral argument, the State indicated that the ban would cover
such an item if a candidate had “brought up” the topic. Tr.
of Oral Arg. 64–65.
The next broad category in the Election Day Policy—any
item “promoting a group with recognizable political views,”
App. to Pet. for Cert. I–2—makes matters worse. The
State construes the category as limited to groups with
“views” about “the issues confronting voters in a given election.”
Brief for Respondents 23. The State does not, however,
confne that category to groups that have endorsed a
candidate or taken a position on a ballot question.
Any number of associations, educational institutions, businesses,
and religious organizations could have an opinion on
an “issue[ ] confronting voters in a given election.” For instance,
the American Civil Liberties Union, the AARP, the
about whether they needed photo identifcation to vote. Brief for Respondents
46–47. We do not doubt that the State may prohibit messages
intended to mislead voters about voting requirements and procedures.
But that interest does not align with the State's construction of “political”
to refer to messages “about the electoral choices at issue in [the] polling
place.” Id., at 13.
20 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
World Wildlife Fund, and Ben & Jerry's all have stated positions
on matters of public concern.5 If the views of those
groups align or confict with the position of a candidate or
party on the ballot, does that mean that their insignia are
banned? See id., at 24, n. 15 (representing that “AFL–CIO
or Chamber of Commerce apparel” would be banned if those
organizations “had objectively recognizable views on an
issue in the election at hand”). Take another example: In
the run-up to the 2012 election, Presidential candidates of
both major parties issued public statements regarding the
then-existing policy of the Boy Scouts of America to exclude
members on the basis of sexual orientation.6 Should a Scout
leader in 2012 stopping to vote on his way to a troop meeting
have been asked to cover up his uniform?
The State emphasizes that the ban covers only apparel
promoting groups whose political positions are suffciently
“well-known.” Tr. of Oral Arg. 37. But that requirement,
if anything, only increases the potential for erratic application.
Well known by whom? The State tells us the
lodestar is the “typical observer” of the item. Brief for Respondents
21. But that measure may turn in signifcant
5 See, e. g., American Civil Liberties Union, Campaign for Smart Justice
(2018), online at http://www.aclu.org/ issues/mass-incarceration/smartjustice/
campaign-smart-justice (taking positions on criminal justice reform)
(all Internet materials as last visited June 11, 2018); AARP,
Government & Elections, online at https://www.aarp.org/politics-society/
government-elections/ (listing positions on Social Security and health
care); World Wildlife Fund, A Win on Capitol Hill (Apr. 17, 2018), online
at https://www.worldwildlife.org/stories/a-win-on-capitol-hill (describing
the organization's position on federal funding for international conservation
programs); Ben & Jerry's, Issues We Care About, online at https://
www.benjerry.com/values/issues-we-care-about (sharing the corporation's
views on campaign finance reform, international conflict, and civil
rights).
6C. Camia, Obama, Romney Opposed t o Boy Scout s Ban on
Gays, USA Today OnPolitics (updated Aug. 08, 2012), online at http://
content.usatoday.com/communities/onpolitics/post/2012/08/ barack-obamaboy-
scouts-gays-mitt-romney-/1.
Cite as: 585 U. S. 1 (2018) 21
Opinion of the Court
part on the background knowledge and media consumption
of the particular election judge applying it.
The State's “electoral choices” standard, considered together
with the nonexclusive examples in the Election Day
Policy, poses riddles that even the State's top lawyers struggle
to solve. A shirt declaring “All Lives Matter,” we are
told, could be “perceived” as political. Tr. of Oral Arg. 41.
How about a shirt bearing the name of the National Rife
Association? Defnitely out. Id., at 39–40. That said, a
shirt displaying a rainbow fag could be worn “unless there
was an issue on the ballot” that “related somehow . . . to
gay rights.” Id., at 38 (emphasis added). A shirt simply
displaying the text of the Second Amendment? Prohibited.
Id., at 40. But a shirt with the text of the First Amendment?
“It would be allowed.” Ibid.
“[P]erfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity.”
Ward v. Rock Against Racism, 491 U. S. 781, 794
(1989). But the State's diffculties with its restriction go beyond
close calls on borderline or fanciful cases. And that is
a serious matter when the whole point of the exercise is to
prohibit the expression of political views.
It is “self-evident” that an indeterminate prohibition carries
with it “[t]he opportunity for abuse, especially where [it]
has received a virtually open-ended interpretation.” Jews
for Jesus, 482 U. S., at 576; see Heffron v. International Soc.
for Krishna Consciousness, Inc., 452 U. S. 640, 649 (1981)
(warning of the “more covert forms of discrimination that
may result when arbitrary discretion is vested in some governmental
authority”). Election judges “have the authority
to decide what is political” when screening individuals at the
entrance to the polls. App. to Pet. for Cert. I–1. We do
not doubt that the vast majority of election judges strive to
enforce the statute in an evenhanded manner, nor that some
degree of discretion in this setting is necessary. But that
discretion must be guided by objective, workable standards.
22 MINNESOTA VOTERS ALLIANCE v. MANSKY
Opinion of the Court
Without them, an election judge's own politics may shape his
views on what counts as “political.” And if voters experience
or witness episodes of unfair or inconsistent enforcement
of the ban, the State's interest in maintaining a polling
place free of distraction and disruption would be undermined
by the very measure intended to further it.
That is not to say that Minnesota has set upon an impossible
task. Other States have laws proscribing displays (including
apparel) in more lucid terms. See, e. g., Cal. Elec.
Code Ann. § 319.5 (West Cum. Supp. 2018) (prohibiting “the
visible display . . . of information that advocates for or
against any candidate or measure,” including the “display of
a candidate's name, likeness, or logo,” the “display of a ballot
measure's number, title, subject, or logo,” and “[b]uttons,
hats,” or “shirts” containing such information); Tex. Elec.
Code Ann. § 61.010(a) (West 2010) (prohibiting the wearing
of “a badge, insignia, emblem, or other similar communicative
device relating to a candidate, measure, or political party
appearing on the ballot, or to the conduct of the election”).
We do not suggest that such provisions set the outer limit of
what a State may proscribe, and do not pass on the constitutionality
of laws that are not before us. But we do hold that
if a State wishes to set its polling places apart as areas free
of partisan discord, it must employ a more discernible approach
than the one Minnesota has offered here.7
7 The State argues that, in the event this Court concludes that there is
a “substantial question” about the proper interpretation of § 211B.11(1),
we should postpone our decision and certify that issue to the Minnesota
Supreme Court. Brief for Respondents 57; see Minn. Stat. § 480.065(3).
The dissent takes up this cause as well. See post, at 26 (opinion of Sotomayor,
J.). The decision to certify, however, “rests in the sound discretion
of the federal court.” Expressions Hair Design v. Schneiderman,
581 U. S. 37, 58 (2017) (Sotomayor, J., concurring in judgment). We decline
to exercise that discretion in this instance. Minnesota's request for
certifcation comes very late in the day: This litigation had been ongoing
in the federal courts for over seven years before the State made its certification
request in its merits brief before this Court. See Stenberg
Cite as: 585 U. S. 1 (2018) 23
Appendix to opinion of the Court
* * *
Cases like this “present[ ] us with a particularly diffcult
reconciliation: the accommodation of the right to engage in
political discourse with the right to vote.” Burson, 504
U. S., at 198 (plurality opinion). Minnesota, like other
States, has sought to strike the balance in a way that affords
the voter the opportunity to exercise his civic duty in a setting
removed from the clamor and din of electioneering.
While that choice is generally worthy of our respect, Minnesota
has not supported its good intentions with a law capable
of reasoned application.
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.
APPENDIX
State Laws Prohibiting Accessories or Apparel in the Polling
Place*
Alaska Alaska Stat. §§ 15.15.170,
15.56.016(a)(2) (2016)
Arkansas Ark. Code Ann. § 7–1–103(a)(9)
(Supp. 2017)
v. Carhart, 530 U. S. 914, 945 (2000) (noting, in denying certifcation, that
the State had never asked the lower federal courts to certify). And the
State has not offered suffcient reason to believe that certifcation would
obviate the need to address the constitutional question. Our analysis
today refects the State's proffered interpretation; nothing in that analysis
would change if the State's interpretation were also adopted by the Minnesota
Supreme Court. Nor has the State (or the dissent) suggested a viable
alternative construction that the Minnesota Supreme Court might
adopt instead. See Brief for Respondents 56–58; post, at 29–32.
*Based on statutory or regulatory language and offcial resources,
where available.
24 MINNESOTA VOTERS ALLIANCE v. MANSKY
Appendix to opinion of the Court
California Cal. Elec. Code Ann. §§ 319.5, 18370
(West Cum. Supp. 2018)
Colorado Colo. Rev. Stat. § 1–13–714(1)
(2017)
Connecticut Conn. Gen. Stat. § 9–236 (2017)
Delaware Del. Code Ann., Tit. 15, § 4942
(2015)
District of Columbia D. C. Code § 1–1001.10(b)(2) (2016);
D. C. Munic. Regs., tit. 3, § 707,
65 D. C. Reg. 4504 (2018)
Georgia Ga. Code Ann. § 21–2–414(a)
(Supp. 2017)
Hawaii Haw. Rev. Stat. § 11–132(d) (2009);
Haw. Admin. Rule § 3–172–63(a)
(2017)
Illinois Ill. Comp. Stat., ch. 10, § 5/7–41(c)
(West 2016)
Indiana Ind. Code § 3–14–3–16 (2011)
Kansas Kan. Stat. Ann. § 25–2430(a)
(2006)
Louisiana La. Rev. Stat. Ann. § 18:1462
(West Cum. Supp. 2018)
Massachusetts Mass. Gen. Laws, ch. 54, § 65
(2007)
Michigan Mich. Comp. Laws Ann. § 168.744
(West Cum. Supp. 2018)
Minnesota Minn. Stat. § 211B.11(1) (Supp.
2017)
Mississippi Miss. Code Ann. § 23–15–895 (Cum.
Supp. 2017)
Cite as: 585 U. S. 1 (2018) 25
Appendix to opinion of the Court
Missouri Mo. Rev. Stat. § 115.637(18)
(2006)
Montana Mont. Code Ann. § 13–35–211
(2017)
Nebraska Neb. Rev. Stat. § 32–1524(2)
(2016)
Nevada Nev. Rev. Stat. § 293.740 (2015)
New Hampshire N. H. Rev. Stat. Ann. § 659:43(I)
(Cum. Supp. 2017)
New Jersey N. J. Stat. Ann. § 19:34–19 (West
2014)
New Mexico N. M. Stat. Ann. § 1–20–16 (2011)
New York N. Y. Elec. Law Ann. § 8–104(1)
(West 2018)
North Dakota N. D. Cent. Code Ann.
§ 16.1–10–03 (2015)
Ohio Ohio Rev. Code Ann. § 3501.35(A)
(Lexis Supp. 2018)
South Carolina S. C. Code Ann. § 7–25–180 (Cum.
Supp. 2017)
South Dakota S. D. Codifed Laws § 12–18–3
(Cum. Supp. 2017)
Tennessee Tenn. Code Ann. § 2–7–111(b)
(2014)
Texas Tex. Elec. Code Ann. § 61.010(a)
(West 2010)
Utah Utah Code § 20A–3–501 (2017)
Vermont Vt. Stat. Ann., Tit. 17, § 2508(a)(1)
(Cum. Supp. 2017)
Wisconsin Wis. Stat. § 12.03 (2011–2012)
26 MINNESOTA VOTERS ALLIANCE v. MANSKY
Sotomayor, J., dissenting
Justice Sotomayor, with whom Justice Breyer joins,
dissenting.
I agree with the Court that “[c]asting a vote is a weighty
civic act” and that “State[s] may reasonably take steps to
ensure that partisan discord not follow the voter up to the
voting booth,” including by “prohibit[ing] certain apparel [in
polling places] because of the message it conveys.” Ante,
at 15–16. I disagree, however, with the Court's decision to
declare Minnesota's political apparel ban unconstitutional on
its face because, in its view, the ban is not “capable of
reasoned application,” ante, at 23, when the Court has not
frst afforded the Minnesota state courts “ `a reasonable
opportunity to pass upon' ” and construe the statute, Babbitt
v. Farm Workers, 442 U. S. 289, 308 (1979). I would certify
this case to the Minnesota Supreme Court for a defnitive
interpretation of the political apparel ban under Minn. Stat.
§ 211B.11(1) (Supp. 2017), which likely would obviate the hypothetical
line-drawing problems that form the basis of the
Court's decision today.
I
As the Court acknowledges, Minnesota adopted its political
apparel ban late in the 19th century against the backdrop
of often “ `chaotic' ” voting conditions where “[c]rowds would
gather to heckle and harass voters who appeared to be supporting
the other side.” Ante, at 7. Polling places became
“highly charged ethnic, religious, and ideological battleground[
s] in which individuals were stereotyped as friend or
foe,” even “on the basis of clothing.” R. Bensel, The American
Ballot Box in the Mid-Nineteenth Century 21 (2004).
As a result, States began adopting reforms “to address these
vulnerabilities and improve the reliability of elections.”
Ante, at 7.
Minnesota thus enacted the political apparel ban at issue
in this case, which prohibits an individual from wearing “[a]
political badge, political button, or other political insignia . . .
at or about the polling place.” § 211B.11(1). Respondents
Cite as: 585 U. S. 1 (2018) 27
Sotomayor, J., dissenting
maintain that this prohibition, together with other electionday
regulations, furthers Minnesota's compelling interests in
(1) “maintaining peace, order and decorum in the polling
place,” (2) “protecting voters from confusion and undue infuence
such as intimidation,” and (3) “preserving the integrity
of its election process.” Brief for Respondents 41 (internal
quotation marks and alterations omitted); see Burson
v. Freeman, 504 U. S. 191, 193, 199 (1992) (plurality opinion)
(recognizing such interests as compelling).
The majority accords due respect to the weight of these
state interests in concluding that there is “no basis for rejecting
Minnesota's determination that some forms of advocacy
should be excluded from the polling place, to set it aside
as `an island of calm in which voters can peacefully contemplate
their choices.' ” Ante, at 15. Polling places today
may not much resemble the chaotic scenes of the turn of the
20th century, but they remain vulnerable to interpersonal
conficts and partisan efforts to infuence voters.* Even acts
of interference that are “undetected or less than blatant . . .
may nonetheless drive the voter away before remedial action
*See, e. g., J. Johnson, Fight Breaks Out at Polling Place (Nov. 8, 2016)
(describing a fght in which a voter sprayed pepper spray at a campaign
volunteer who allegedly had been handing out campaign materials),
http://www.wpbf.com/article/fght-breaks-out-at-polling-place/8258506 (all
Internet materials as last visited June 8, 2018); R. Reilly, A Guy in a
Trump Shirt Carried a Gun Outside of a Virginia Polling Place. Authorities
Say That's Fine (Nov. 4, 2016) (describing a man wearing a shirt bearing
the name of a candidate and carrying a weapon outside of a polling
place), https://www.huffingtonpost.com/entry/trumpsupporter-gun-voterintimidation-
virginia_us_581cf16ee4b0aac624846eb5; Morris, Early Voting
Long Waits Led to Disturbance at Voting Site, Houston Chronicle, Nov. 5,
2012, p. B2 (reporting that individuals wearing shirts bearing the name of a
racial equality organization allegedly were “disruptive,” “took over” a polling
place, and were “electioneering and voicing support” for a particular candidate);
Police Arrest Poll Worker After Dispute With a Voter, Orlando Sentinel,
Nov. 8, 2006, p. A5 (reporting arrest of a poll worker who was “charged
with assault and interfering with an election after allegedly choking a voter
and pushing him out the door”); Perez, Bill Aims To Stop Voter Harassment,
Orlando Sentinel, Mar. 2, 2005, p. B1 (reporting “[s]houting matches and
rowdy behavior” and “harass[ment] and intimidat[ion] at the polls”).
28 MINNESOTA VOTERS ALLIANCE v. MANSKY
Sotomayor, J., dissenting
can be taken.” Burson, 504 U. S., at 207; see also Brief for
Campaign Legal Center as Amicus Curiae 9 (noting that,
“[a]bsent a ban on political paraphernalia, [poll] workers
might unintentionally exhibit unconscious bias against voters
who wear the `wrong' paraphernalia”).
In holding that a polling place constitutes a nonpublic
forum and that a State must establish only that its limitations
on speech inside the polling place are reasonable, see
ante, at 12–13, the Court goes a long way in preserving
States' discretion to determine what measures are appropriate
to further important interests in maintaining order
and decorum, preventing confusion and intimidation, and
protecting the integrity of the voting process. The Court
errs, however, in declaring Minnesota's political apparel ban
unconstitutional under that standard, without any guidance
from the State's highest court on the proper interpretation
of that state law. Ante, at 22, n. 7.
II
The Court invalidates Minnesota's political apparel ban
based on its inability to define the term “political” in
§ 211B.11(1), so as to discern “some sensible basis for distinguishing
what may come in from what must stay out” of a
polling place. Ante, at 16. The majority believes that the
law is not “capable of reasoned application,” ante, at 23, but
it reaches that conclusion without taking the preferential
step of frst asking the state courts to provide “an accurate
picture of how, exactly, the statute works,” Expressions
Hair Design v. Schneiderman, 581 U. S. 37, 55 (2017) (Sotomayor,
J., concurring in judgment). It is a “cardinal principle”
that, “when confronting a challenge to the constitutionality
of a . . . statute,” courts “will frst ascertain whether
a construction . . . is fairly possible that will contain the statute
within constitutional bounds,” and in the context of a
challenge to a state statute, federal courts should be particularly
hesitant to speculate as to possible constructions of the
Cite as: 585 U. S. 1 (2018) 29
Sotomayor, J., dissenting
state law when “the state courts stand willing to address
questions of state law on certifcation.” Arizonans for Offcial
English v. Arizona, 520 U. S. 43, 78–79 (1997) (internal
quotation marks omitted); see Minn. Stat. § 480.065(3) (2016)
(authorizing the Minnesota Supreme Court to answer certifed
questions). Certifcation “save[s] time, energy, and resources
and helps build a cooperative judicial federalism.”
Lehman Brothers v. Schein, 416 U. S. 386, 391 (1974). Neither
of the majority's proffered reasons for declining to certify
this case justifes its holding.
First, the Court notes that respondents' “request for certifcation
comes very late in the day,” as the litigation already
had been ongoing for more than seven years before the request.
Ante, at 22, n. 7. But certifcation is not an argument
subject to forfeiture by the parties. It is a tool of the
federal courts that serves to avoid “friction-generating
error” where a federal court attempts to construe a statute
“not yet reviewed by the State's highest court.” Arizonans
for Offcial English, 520 U. S., at 79. This Court has certifed
questions to a state court “sua sponte, even though the
parties had not sought such relief and even though the district
court and the court of appeals previously had resolved
the disputed point of state law.” S. Shapiro, K. Geller,
T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court
Practice § 9.4, p. 611 (10th ed. 2013) (citing Elkins v. Moreno,
435 U. S. 647, 660–663, 668–669 (1978)); see also Massachusetts
v. Feeney, 429 U. S. 66 (1976) (per curiam) (certifying a
question to the Supreme Judicial Court of the Commonwealth
of Massachusetts “on [the Court's] own motion”).
Respondents' delay in asking for certifcation does nothing
to alter this Court's responsibility as a matter of statefederal
comity to give due deference to the state courts in
interpreting their own laws.
Second, the majority maintains that respondents have “not
offered suffcient reason to believe that certifcation would
obviate the need to address the constitutional question,” as
30 MINNESOTA VOTERS ALLIANCE v. MANSKY
Sotomayor, J., dissenting
“nothing in [its] analysis would change if [respondents'] interpretation
were also adopted by the Minnesota Supreme
Court.” Ante, at 23, n. 7. The majority also relies on its
view that respondents have not “suggested a viable alternative
construction that the Minnesota Supreme Court might
adopt instead.” Ibid. To presume that the Minnesota Supreme
Court would adopt respondents' interpretation wholesale
or that it could not provide a construction of its own
that is “capable of reasoned application,” ante, at 23, however,
refects precisely the “ `gratuitous' ” “ `[s]peculation . . .
about the meaning of a state statute' ” that this Court has
discouraged, Arizonans for Offcial English, 520 U. S., at 79.
It is at least “fairly possible” that the state court could
“ascertain . . . a construction . . . that will contain the statute
within constitutional bounds.” Id., at 78 (internal quotation
marks omitted). Ultimately, the issue comes down to the
meaning of the adjective “political,” as used to describe
what constitutes a “political badge, political button, or other
political insignia.” § 211B.11(1). The word “political” is, of
course, not inherently incapable of defnition. This Court
elsewhere has encountered little diffculty discerning its
meaning in the context of statutes subject to First Amendment
challenges. See, e. g., Civil Service Comm'n v. Letter
Carriers, 413 U. S. 548, 550–551 (1973) (rejecting First
Amendment overbreadth and vagueness challenge to § 9(a)
of the Hatch Act, then codifed at 5 U. S. C. § 7324(a)(2), which
prohibited federal employees from taking “ `an active part in
political management or in political campaigns' ”); Broadrick
v. Oklahoma, 413 U. S. 601, 602 (1973) (rejecting First
Amendment overbreadth and vagueness challenge to a similar
Oklahoma law that “restricts the political activities of the
State's classifed civil servants”).
Even here, the majority recognizes a substantial amount of
speech that “clear[ly]” qualifes as “political,” such as “items
displaying the name of a political party, items displaying the
name of a candidate, and items demonstrating support of or
Cite as: 585 U. S. 1 (2018) 31
Sotomayor, J., dissenting
opposition to a ballot question.” Ante, at 18 (internal quotation
marks omitted). The fact that the majority has some
diffculty deciphering guidance to § 211B.11(1) that also proscribes
“[i]ssue oriented material designed to infuence or
impact voting” and “[m]aterial promoting a group with recognizable
political views,” App. to Pet. for Cert. I–2; see
ante, at 18–21, does not mean that the statute as a whole is
not subject to a construction that falls within constitutional
bounds. As this Court has made clear in the context of the
First Amendment overbreadth doctrine, the “mere fact” that
petitioners “can conceive of some impermissible applications
of [the] statute is not suffcient to render it” unconstitutional.
United States v. Williams, 553 U. S. 285, 303 (2008) (internal
quotation marks omitted). That is especially so where the
state court is capable of clarifying the boundaries of state
law in a manner that would permit the Court to engage in a
comprehensive constitutional analysis. See, e. g., Virginia
v. American Booksellers Assn., Inc., 484 U. S. 383 (1988)
(certifying questions to the Virginia Supreme Court for clarifcation
as to whether a state statute was readily susceptible
to a narrowing construction that would not violate the First
Amendment); Commonwealth v. American Booksellers
Assn., Inc., 236 Va. 168, 372 S. E. 2d 618 (1988) (responding
to certifcation with such a narrowing construction).
Furthermore, the Court also should consider the history
of Minnesota's “implementation” of the statute in evaluating
the facial challenge here. Forsyth County v. Nationalist
Movement, 505 U. S. 123, 131 (1992). That history offers
some assurance that the statute has not been interpreted or
applied in an unreasonable manner. There is no evidence
that any individual who refused to remove a political item
has been prohibited from voting, and respondents maintain
that no one has been referred for prosecution for violating
the provision. See Brief for Respondents 4, n. 2. Since the
political apparel ban was enacted in the late 19th century,
this is the frst time the statute has been challenged on the
32 MINNESOTA VOTERS ALLIANCE v. MANSKY
Sotomayor, J., dissenting
basis that certain speech is not “political.” Tr. of Oral Arg.
44. Even then, petitioners' as-applied challenge was rejected
by the District Court and the Court of Appeals for
the Eighth Circuit. See Minnesota Majority v. Mansky, 62
F. Supp. 3d 870, 878 (Minn. 2014); Minnesota Majority v.
Mansky, 2015 WL 13636675, *12 (D Minn., Mar. 23, 2015);
Minnesota Majority v. Mansky, 849 F. 3d 749, 752–753 (CA8
2017). Petitioners did not seek review of those claims in
this Court. See Pet. for Cert. i. On the whole, the historical
application of the law helps illustrate that the statute is
not so “indeterminate” so as to “carr[y] with it `[t]he opportunity
for abuse.' ” Ante, at 21.
III
Especially where there are undisputedly many constitutional
applications of a state law that further weighty state
interests, the Court should be wary of invalidating a law
without giving the State's highest court an opportunity to
pass upon it. See Babbitt, 442 U. S., at 309; Arizonans for
Offcial English, 520 U. S., at 79. Because the Court declines
to take the obvious step of certifcation in this case, I
respectfully dissent.
OCTOBER TERM, 2017 33
Syllabus
ANIMAL SCIENCE PRODUCTS, INC., et al. v. HEBEI
WELCOME PHARMACEUTICAL CO. LTD. et al.
certiorari to the united states court of appeals for
the second circuit
No. 16–1220. Argued April 24, 2018—Decided June 14, 2018
Petitioners, U. S.-based purchasers of vitamin C (U. S. purchasers), fled a
class-action suit, alleging that four Chinese corporations that manufacture
and export the nutrient (Chinese sellers), including the two respondents
here, had agreed to fx the price and quantity of vitamin C
exported to the United States, in violation of § 1 of the Sherman Act.
The Chinese sellers moved to dismiss the complaint on the ground that
Chinese law required them to fx the price and quantity of vitamin C
exports, thus shielding them from liability under U. S. antitrust law.
The Ministry of Commerce of the People's Republic of China (Ministry)
fled an amicus brief in support of the motion, explaining that it is the
administrative authority authorized to regulate foreign trade, and stating
that the alleged conspiracy in restraint of trade was actually a pricing
regime mandated by the Chinese Government. The U. S. purchasers
countered that the Ministry had identifed no law or regulation
ordering the Chinese sellers' price agreement, highlighted a publication
announcing that the Chinese sellers had agreed to control the quantity
and rate of exports without government intervention, and presented
supporting expert testimony.
The District Court denied the Chinese sellers' motion in relevant
part, concluding that it did not regard the Ministry's statements as “conclusive,”
particularly in light of the U. S. purchasers' evidence. When
the Chinese sellers subsequently moved for summary judgment, the
Ministry submitted another statement, reiterating its stance, and the
U. S. purchasers pointed to China's statement to the World Trade Organization
that it ended its export administration of vitamin C in 2002.
The court denied this motion as well. The case was then tried to a jury,
which returned a verdict for the U. S. purchasers.
The Second Circuit reversed, holding that the District Court erred by
denying the Chinese sellers' motion to dismiss the complaint. When a
foreign government whose law is in contention submits an offcial
statement on the meaning and interpretation of its domestic law, the
court concluded, federal courts are “bound to defer” to the foreign government's
construction of its own law, whenever that construction is “reasonable.”
Inspecting only the Ministry's brief and the sources cited therein,
the court found the Ministry's account of Chinese law “reasonable.”
34 ANIMAL SCIENCE PRODUCTS, INC. v. HEBEI
WELCOME PHARMACEUTICAL CO.
Syllabus
Held: A federal court determining foreign law under Federal Rule of Civil
Procedure 44.1 should accord respectful consideration to a foreign government's
submission, but the court is not bound to accord conclusive
effect to the foreign government's statements.
Rule 44.1 fundamentally changed the mode of determining foreign law
in federal courts. Before adoption of the rule in 1966, a foreign nation's
laws had to be “proved as facts.” Talbot v. Seeman, 1 Cranch 1, 38.
Rule 44.1, in contrast, specifes that a court's determination of foreign
law “must be treated as a ruling on a question of law.” And in ascertaining
foreign law, courts are not limited to materials submitted by the
parties, but “may consider any relevant material or source.” Appellate
review, as is true of domestic law determinations, is de novo. The purpose
of these changes was to align, to the extent possible, the process
for determining alien law and the process for determining domestic law.
Neither Rule 44.1 nor any other rule or statute addresses the weight
a federal court determining foreign law should give to the views presented
by a foreign government. In the spirit of “international comity,”
Société Nationale Industrielle Aérospatiale v. United States Dist.
Court for Southern Dist. of Iowa, 482 U. S. 522, 543, and n. 27, a federal
court should carefully consider a foreign state's views about the meaning
of its own laws. The appropriate weight in each case, however, will
depend upon the circumstances; a federal court is neither bound to adopt
the foreign government's characterization nor required to ignore other
relevant materials. No single formula or rule will ft all cases, but relevant
considerations include the statement's clarity, thoroughness, and
support; its context and purpose; the transparency of the foreign legal
system; the role and authority of the entity or offcial offering the statement;
and the statement's consistency with the foreign government's
past positions.
Judged in this light, the Second Circuit's unyielding rule is inconsistent
with Rule 44.1 and, tellingly, with this Court's treatment of analogous
submissions from States of the United States. If the relevant
state law is established by a decision of “the State's highest court,” that
decision is “binding on the federal courts,” Wainwright v. Goode, 464
U. S. 78, 84, but views of the State's attorney general, while attracting
“respectful consideration,” do not garner controlling weight, Arizonans
for Offcial English v. Arizona, 520 U. S. 43, 76–77, n. 30. Furthermore,
because the Second Circuit riveted its attention on the Ministry's
submission, it did not address evidence submitted by the U. S. purchasers.
The court also misperceived the pre-Rule 44.1 decision of United
States v. Pink, 315 U. S. 203. Under the particular circumstances of
that case, this Court found conclusive a declaration from the government
of the Russian Socialist Federal Soviet Republic on the extraterritorial
effect of a decree nationalizing assets: The declaration was obtained by
Cite as: 585 U. S. 33 (2018) 35
Syllabus
the United States through offcial “diplomatic channels,” id., at 218;
there was no indication that the declaration was inconsistent with the
Russian Government's past statements; and the declaration was consistent
with expert evidence in point.
The Second Circuit expressed concern about reciprocity, but the
United States has not historically argued that foreign courts are bound
to accept its characterizations or precluded from considering other relevant
sources. International practice is also inconsistent with the Second
Circuit's rigid rule. Pp. 41–47.
837 F. 3d 175, vacated and remanded.
Ginsburg, J., delivered the opinion for a unanimous Court.
Michael J. Gottlieb argued the cause for petitioners.
With him on the briefs were William A. Isaacson, David
Boies, James T. Southwick, Shawn L. Raymond, Michael D.
Hausfeld, Brian A. Ratner, Melinda R. Coolidge, and Brent
W. Landau.
Brian H. Fletcher argued the cause for the United States
as amicus curiae urging vacatur. With him on the brief
were Solicitor General Francisco, Assistant Attorney General
Delrahim, Deputy Solicitor General Stewart, Kristen
C. Limarzi, James J. Fredricks, Frances Marshall, and Jennifer
G. Newstead.
Carter G. Phillips argued the cause for the Ministry of
Commerce of the People's Republic of China as amicus
curiae urging affrmance. With him on the brief were
Kwaku A. Akowuah, Tobias S. Loss-Eaton, and Joel M.
Mitnick.
Jonathan M. Jacobson argued the cause for respondents.
With him on the brief were Daniel P. Weick, Justin A.
Cohen, Susan A. Creighton, Scott A. Sher, Bradley T. Tennis,
and Elyse Dorsey.*
*Briefs of amici curiae urging reversal were fled for the American
Antitrust Institute by Richard M. Brunell and Randy M. Stutz; for the
Chamber of Commerce of the United States of America by Luke A. Sobota;
for Professors of Confict of Laws et al. by Neil A.F. Popovic´ ; and for
Donald Clark et al. by Brian P. Murray.
Briefs of amici curiae urging affrmance were fled for the China Chamber
of International Commerce by Sienho Yee; and for Chinese Professors
36 ANIMAL SCIENCE PRODUCTS, INC. v. HEBEI
WELCOME PHARMACEUTICAL CO.
Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
When foreign law is relevant to a case instituted in a federal
court, and the foreign government whose law is in
contention submits an offcial statement on the meaning and
interpretation of its domestic law, may the federal court look
beyond that offcial statement? The Court of Appeals for
the Second Circuit answered generally “no,” ruling that federal
courts are “bound to defer” to a foreign government's
construction of its own law, whenever that construction is
“reasonable.” In re Vitamin C Antitrust Litigation, 837
F. 3d 175, 189 (2016).
We hold otherwise. A federal court should accord respectful
consideration to a foreign government's submission,
but is not bound to accord conclusive effect to the foreign
government's statements. Instead, Federal Rule of Civil
Procedure 44.1 instructs that, in determining foreign law,
“the court may consider any relevant material or source . . .
whether or not submitted by a party.” As “[t]he court's determination
must be treated as a ruling on a question of law,”
Fed. Rule Civ. Proc. 44.1, the court “may engage in its own
research and consider any relevant material thus found,” Advisory
Committee's 1966 Note on Fed. Rule Civ. Proc. 44.1,
28 U. S. C. App., p. 892 (hereinafter Advisory Committee's
Note). Because the Second Circuit ordered dismissal of this
case on the ground that the foreign government's statements
could not be gainsaid, we vacate that court's judgment and
remand the case for further consideration.
I
Petitioners, U. S.-based purchasers of vitamin C (hereinafter
U. S. purchasers), fled a class-action suit against four
of Administrative Law by Timothy J. Droske, Nathaniel H. Akerman,
and Lanier Saperstein.
Briefs of amici curiae were fled for Professors of International Litigation
by Jonathan S. Massey; and for Samuel Estreicher et al. by Mr. Estreicher
and Thomas H. Lee, both pro se.
Cite as: 585 U. S. 33 (2018) 37
Opinion of the Court
Chinese corporations that manufacture and export the nutrient
(hereinafter Chinese sellers). The U. S. purchasers alleged
that the Chinese sellers, two of whom are respondents
here, had agreed to fx the price and quantity of vitamin C
exported to the United States from China, in violation of § 1
of the Sherman Act, 15 U. S. C. § 1. More particularly, the
U. S. purchasers stated that the Chinese sellers had formed
a cartel “facilitated by the efforts of their trade association,”
the Chamber of Commerce of Medicines and Health Products
Importers and Exporters (Chamber). Complaint in
No. 1:05–CV–453, Docket No. 1, ¶43. The Judicial Panel on
Multidistrict Litigation consolidated the instant case and related
suits for pretrial proceedings in the United States District
Court for the Eastern District of New York.
The Chinese sellers moved to dismiss the U. S. purchasers'
complaint on the ground that Chinese law required them to
fx the price and quantity of vitamin C exports. Therefore,
the Chinese sellers urged, they are shielded from liability
under U. S. antitrust law by the act of state doctrine, the
foreign sovereign compulsion doctrine, and principles of
international comity. The Ministry of Commerce of the People's
Republic of China (Ministry) fled a brief as amicus
curiae in support of the Chinese sellers' motion. The Ministry's
brief stated that the Ministry is “the highest administrative
authority in China authorized to regulate foreign
trade,” App. to Pet. for Cert. 190a; that the Chamber is
“an entity under the Ministry's direct and active supervision”
and is authorized to regulate vitamin C exports, id.,
at 196a; and that the conspiracy in restraint of trade alleged
by the U. S. purchasers was in fact “a regulatory pricing
regime mandated by the government of China,” id., at
197a.1
1 The Ministry told the District Court: For much of the 20th century,
China allowed only state-owned entities to export products. App. to Pet.
for Cert. 198a. When China started to allow private enterprises to obtain
38 ANIMAL SCIENCE PRODUCTS, INC. v. HEBEI
WELCOME PHARMACEUTICAL CO.
Opinion of the Court
In response, the U. S. purchasers disputed that Chinese
law required the Chinese sellers to engage in price fxing.
Among other things, the U. S. purchasers noted that the
Ministry had not identifed any written law or regulation expressly
ordering the Chinese sellers' price agreement.2
They also highlighted a Chamber announcement that the
manufacturers “were able to reach a self-regulated agreement
. . . whereby they would voluntarily control the quanexport
licenses, the Ministry established the Chamber to regulate exports
under the Ministry's authority and direction. Ibid.
In 1997, the Ministry authorized the establishment of the Chamber's
Vitamin C Subcommittee. Id., at 202a. That year, the Ministry promulgated
a regulation authorizing and requiring the subcommittee to limit
the production of vitamin C for export and to set export prices. Id., at
202a–204a. Under the regulation delineating this “Export Licensing System,”
the Ministry issued export licenses only to manufacturers whose
export volume and price complied with the output quota and price coordinated
by the Vitamin C Subcommittee. Id., at 204a.
In 2002, the Ministry replaced the Export Licensing System with a
“Verifcation and Chop System.” Id., at 208a. As set forth in a 2002
Ministry Notice, the Chamber itself—instead of the Ministry—would inspect
each export contract and certify its compliance with the coordinated
quotas and price by affxing a special seal, known as a “chop.” Id., at
208a–209a. China's Customs would allow export only if the exporter presented
its contract bearing the Chamber's “chop.” Id., at 209a. According
to the Ministry, it was implicit in this arrangement that vitamin C
exporters would remain under an obligation to fx prices and volumes.
Id., at 208a.
The effect of China's regime on the Chinese sellers' liability under the
Sherman Act, we note, is not an issue before the Court today.
2 The complaint, the U. S. purchasers emphasized, was directed only at
conduct occurring after December 2001. As they understood the Ministry's
2002 Notice, see supra this page, n. 1, vitamin C exporters could
have lawfully opted out of price fxing. Beyond that, the Vitamin C Subcommittee
had replaced its 1997 Charter with a new 2002 Charter, App.
182–197, which eliminated the 1997 Charter's requirement that subcommittee
members “[s]trictly execute” the “coordinated price” set by
the Chamber, compare id., at 85, with id., at 185, and granted members
an express “[r]igh[t]” to “freely resign from the Subcommittee,” id.,
at 186.
Cite as: 585 U. S. 33 (2018) 39
Opinion of the Court
tity and pace of exports . . . without any government intervention.”
App. 109. In addition, the U. S. purchasers
presented expert testimony that the Chinese Government's
authorization of a Vitamin C Subcommittee within the
Chamber did not necessarily mean that the subcommittee's
price fxing was mandated by law.
The District Court denied the Chinese sellers' motion to
dismiss the complaint in relevant part. In re Vitamin C
Antitrust Litigation, 584 F. Supp. 2d 546, 559 (EDNY 2008).
That court acknowledged that the Ministry's amicus brief
was “entitled to substantial deference.” Id., at 557. The
court, however, did not regard the Ministry's statements as
“conclusive,” emphasizing particularly that the U. S. purchasers
had submitted evidence suggesting that the price
fxing was voluntary. Ibid. The record, the District Court
determined, was “too ambiguous to foreclose further inquiry
into the voluntariness of [the Chinese sellers'] actions.” Id.,
at 559.
After further discovery, focused on whether Chinese law
compelled the Chinese sellers to enter into a price-fxing
agreement, the Chinese sellers moved for summary judgment.
See In re Vitamin C Antitrust Litigation, 810
F. Supp. 2d 522, 525–526 (EDNY 2011). The Ministry submitted
an additional statement, reiterating that “the Ministry
specifcally charged the Chamber . . . with the authority
and responsibility . . . for regulating, through consultation,
the price of vitamin C manufactured for export.” App. 133.
The Chinese sellers tendered expert testimony in accord
with the Ministry's account, which stressed that the Ministry's
“interpretation of its own regulations and policies carries
decisive weight under Chinese law.” Id., at 142. The
U. S. purchasers, in response, cited further materials supporting
their opposing view, including China's statement to
the World Trade Organization (WTO) that it “gave up export
administration of . . . vitamin C” in 2002. 810 F. Supp.
2d, at 532 (internal quotation marks omitted). Denying
40 ANIMAL SCIENCE PRODUCTS, INC. v. HEBEI
WELCOME PHARMACEUTICAL CO.
Opinion of the Court
the Chinese sellers' motion for summary judgment, the District
Court held that Chinese law did not require the sellers
to fx the price or quantity of vitamin C exports. Id.,
at 525.
The case was then tried to a jury, which returned a verdict
for the U. S. purchasers. The jury found that the Chinese
sellers had agreed to fx the prices and quantities of vitamin
C exports, see App. to Pet. for Cert. 276a–279a, and further
found that the Chinese sellers were not “actually compelled”
by China to enter into those agreements, id., at 278a. In
accord with the jury's verdict, the District Court entered
judgment for the U. S. purchasers, awarding some $147 million
in treble damages and enjoining the Chinese sellers from
further violations of the Sherman Act.
The Court of Appeals for the Second Circuit reversed,
holding that the District Court erred in denying the Chinese
sellers' motion to dismiss the complaint. In re Vitamin C
Antitrust Litigation, 837 F. 3d 175, 178, 195–196 (2016).
The Court of Appeals determined that the propriety of dismissal
hinged on whether the Chinese sellers could adhere
to both Chinese law and U. S. antitrust law. See id., at 186.
That question, in turn, depended on “the amount of deference”
owed to the Ministry's characterization of Chinese law.
Ibid. Cognizant of “competing authority” on this question,
ibid., the Court of Appeals settled on a highly deferential
rule: “[W]hen a foreign government, acting through counsel
or otherwise, directly participates in U. S. court proceedings
by providing a [statement] regarding the construction and
effect of [the foreign government's] laws and regulations,
which is reasonable under the circumstances presented, a
U. S. court is bound to defer to those statements,” id., at 189.
The appeals court “note[d] that[,] if the Chinese Government
had not appeared in this litigation, the [D]istrict [C]ourt's
careful and thorough treatment of the evidence before it in
analyzing what Chinese law required at both the motion to
dismiss and summary judgment stages would have been entirely
appropriate.” Id., at 191, n. 10.
Cite as: 585 U. S. 33 (2018) 41
Opinion of the Court
Applying its highly deferential rule, the Court of Appeals
concluded that the Ministry's account of Chinese law was
“reasonable.” In so concluding, the Court of Appeals inspected
only the Ministry's brief and sources cited therein.
Id., at 189–190. Because it thought that “a U. S. court
[must] not embark on a challenge to a foreign government's
offcial representation,” id., at 189, the Court of Appeals disregarded
the submissions made by the U. S. purchasers casting
doubt on the Ministry's account of Chinese law, id., at
189–190. Based solely on the Ministry's statements, the
Court of Appeals held that “Chinese law required [the Chinese
sellers] to engage in activities in China that constituted
antitrust violations here in the United States.” Ibid.
We granted certiorari to resolve a Circuit confict over
this question: Is a federal court determining foreign law
under Rule 44.1 required to treat as conclusive a submission
from the foreign government describing its own law? 583
U. S. 1089 (2018).3
II
At common law, the content of foreign law relevant to a
dispute was treated “as a question of fact.” Miller, Federal
Rule 44.1 and the “Fact” Approach to Determining Foreign
Law: Death Knell for a Die-Hard Doctrine, 65 Mich. L. Rev.
613, 617–619 (1967) (Miller). In 1801, this Court endorsed
3 Compare In re Vitamin C Antitrust Litigation, 837 F. 3d 175 (CA2
2016) (case below), with In re Oil Spill by Amoco Cadiz, 954 F. 2d 1279,
1311–1313 (CA7 1992) (adopting French Government's interpretation of
French law, but only after considering all of the circumstances, including
the French Government's statements in other contexts); United States v.
McNab, 331 F. 3d 1228, 1239–1242 (CA11 2003) (noting Honduran Government's
shift in position on the question of Honduran law and determining
that the original position stated the proper interpretation); McKesson
HBOC, Inc. v. Islamic Republic of Iran, 271 F. 3d 1101, 1108–1109 (CADC
2001), vacated in part on other grounds, 320 F. 3d 280 (CADC 2003) (declining
to adopt the view of Iranian law advanced by Iranian Government
because it was not supported by the affdavits submitted by Iran's
experts).
42 ANIMAL SCIENCE PRODUCTS, INC. v. HEBEI
WELCOME PHARMACEUTICAL CO.
Opinion of the Court
the common-law rule, instructing that “the laws of a foreign
nation” must be “proved as facts.” Talbot v. Seeman, 1
Cranch 1, 38 (1801); see, e. g., Church v. Hubbart, 2 Cranch
187, 236 (1804) (“Foreign laws are well understood to be
facts.”). Ranking questions of foreign law as questions of
fact, however, “had a number of undesirable practical consequences.”
9A C. Wright & A. Miller, Federal Practice and
Procedure § 2441, p. 324 (3d ed. 2008) (Wright & Miller).
Foreign law “had to be raised in the pleadings” and proved
“in accordance with the rules of evidence.” Ibid. Appellate
review was deferential and limited to the record made
in the trial court. Ibid.; see also Miller 623.
Federal Rule of Civil Procedure 44.1, adopted in 1966, fundamentally
changed the mode of determining foreign law in
federal courts. The Rule specifes that a court's determination
of foreign law “must be treated as a ruling on a question
of law,” rather than as a fnding of fact.4 Correspondingly,
in ascertaining foreign law, courts are not limited to materials
submitted by the parties; instead, they “may consider any
relevant material or source . . . , whether or not . . . admissible
under the Federal Rules of Evidence.” Ibid. Appellate
review, as is true of domestic law determinations, is de novo.
Advisory Committee's Note, at 892. Rule 44.1 frees courts
“to reexamine and amplify material . . . presented by counsel
in partisan fashion or in insuffcient detail.” Ibid. The “obvious”
purpose of the changes Rule 44.1 ordered was “to
make the process of determining alien law identical with the
method of ascertaining domestic law to the extent that it is
possible to do so.” Wright & Miller § 2444, at 338–342.
Federal courts deciding questions of foreign law under
Rule 44.1 are sometimes provided with the views of the relevant
foreign government, as they were in this case through
4 Federal Rule of Criminal Procedure 26.1 establishes “substantially the
same” rule for criminal cases. Advisory Committee's 1966 Note on Fed.
Rule Crim. Proc. 26.1, 18 U. S. C. App., p. 709.
Cite as: 585 U. S. 33 (2018) 43
Opinion of the Court
the amicus brief of the Ministry. See supra, at 37. As the
Court of Appeals correctly observed, Rule 44.1 does not address
the weight a federal court determining foreign law
should give to the views presented by the foreign government.
See 837 F. 3d, at 187. Nor does any other rule or
statute. In the spirit of “international comity,” Société Nationale
Industrielle Aérospatiale v. United States Dist.
Court for Southern Dist. of Iowa, 482 U. S. 522, 543, and
n. 27 (1987), a federal court should carefully consider a foreign
state's views about the meaning of its own laws. See
United States v. McNab, 331 F. 3d 1228, 1241 (CA11 2003);
cf. Bodum USA, Inc. v. La Cafetière, Inc., 621 F. 3d 624, 638–
639 (CA7 2010) (Wood, J., concurring). But the appropriate
weight in each case will depend upon the circumstances; a
federal court is neither bound to adopt the foreign government's
characterization nor required to ignore other relevant
materials. When a foreign government makes conficting
statements, see supra, at 39, or, as here, offers an account in
the context of litigation, there may be cause for caution in
evaluating the foreign government's submission.
Given the world's many and diverse legal systems, and the
range of circumstances in which a foreign government's
views may be presented, no single formula or rule will ft all
cases in which a foreign government describes its own law.
Relevant considerations include the statement's clarity, thoroughness,
and support; its context and purpose; the transparency
of the foreign legal system; the role and authority of the
entity or offcial offering the statement; and the statement's
consistency with the foreign government's past positions.
Judged in this light, the Court of Appeals erred in deeming
the Ministry's submission binding, so long as facially reasonable.
That unyielding rule is inconsistent with Rule 44.1
(determination of an issue of foreign law “must be treated as
a ruling on a question of law”; court may consider “any relevant
material or source”) and, tellingly, with this Court's
44 ANIMAL SCIENCE PRODUCTS, INC. v. HEBEI
WELCOME PHARMACEUTICAL CO.
Opinion of the Court
treatment of analogous submissions from States of the
United States. If the relevant state law is established by a
decision of “the State's highest court,” that decision is “binding
on the federal courts.” Wainwright v. Goode, 464 U. S.
78, 84 (1983) (per curiam); see Mullaney v. Wilbur, 421 U. S.
684, 691 (1975). But views of the State's attorney general,
while attracting “respectful consideration,” do not garner
controlling weight. Arizonans for Offcial English v. Arizona,
520 U. S. 43, 76–77, n. 30 (1997); see, e. g., Virginia v.
American Booksellers Assn., Inc., 484 U. S. 383, 393–396
(1988). Furthermore, because the Court of Appeals riveted
its attention on the Ministry's submission, it did not address
other evidence, including, for example, China's statement to
the WTO that China had “g[i]ve[n] up export administration
. . . of vitamin C” at the end of 2001. 810 F. Supp. 2d, at 532
(internal quotation marks omitted).5
The Court of Appeals also misperceived this Court's decision
in United States v. Pink, 315 U. S. 203 (1942). See 837
F. 3d, at 186–187, 189. Pink, properly comprehended, is not
compelling authority for the attribution of controlling weight
to the Ministry's brief. We note, frst, that Pink was a pre-
Rule 44.1 decision. Second, Pink arose in unusual circumstances.
Pink was an action brought by the United States
to recover assets of the U. S. branch of a Russian insurance
company that had been nationalized in 1918, after the Russian
revolution. 315 U. S., at 210–211. In 1933, the Soviet
Government assigned the nationalized assets located in this
country to the United States. Id., at 211–212. The disposi-
5 The Court of Appeals additionally mischaracterized the Ministry's brief
as a “sworn evidentiary proffer.” 837 F. 3d, at 189. In so describing
the Ministry's submission, the Court of Appeals overlooked that a court's
resolution of an issue of foreign law “must be treated as a ruling on a
question of law.” Fed. Rule Civ. Proc. 44.1. The Ministry's brief, while
a probative source for resolving the legal question at hand, was not an
attestation to facts.
Cite as: 585 U. S. 33 (2018) 45
Opinion of the Court
tion of the case turned on the extraterritorial effect of the
nationalization decree—specifically, whether the decree
reached assets of the Russian insurance company located in
the United States, or was instead limited to property in Russia.
Id., at 213–215, 217. To support the position that the
decree reached all of the company's assets, the United States
obtained an “offcial declaration of the Commissariat for Justice”
of the Russian Socialist Federal Soviet Republic. Id.,
at 218. The declaration certifed that the nationalization decree
reached “the funds and property of former insurance
companies . . . irrespective of whether [they were] situated
within the territorial limits of [Russia] or abroad.” Id., at
220 (internal quotation marks omitted). This Court determined
that “the evidence supported [a] fnding” that “the
Commissariat for Justice ha[d] power to interpret existing
Russian law.” Ibid. “That being true,” the Court concluded,
the “offcial declaration [wa]s conclusive so far as the
intended extraterritorial effect of the Russian decree [wa]s
concerned.” Ibid.
This Court's treatment of the Commissariat's submission
as conclusive rested on a document obtained by the United
States, through offcial “diplomatic channels.” Id., at 218.
There was no indication that the declaration was inconsistent
with the Soviet Union's past statements. Indeed, the Court
emphasized that the declaration was consistent with expert
evidence in point. See ibid. That the Commissariat's declaration
was deemed “conclusive” in the circumstances Pink
presented scarcely suggests that all submissions by a foreign
government are entitled to the same weight.
The Court of Appeals also reasoned that a foreign government's
characterization of its own laws should be afforded
“the same respect and treatment that we would expect our
government to receive in comparable matters.” 837 F. 3d,
at 189. The concern for reciprocity is sound, but it does
not warrant the Court of Appeals' judgment. Indeed, the
46 ANIMAL SCIENCE PRODUCTS, INC. v. HEBEI
WELCOME PHARMACEUTICAL CO.
Opinion of the Court
United States, historically, has not argued that foreign
courts are bound to accept its characterizations or precluded
from considering other relevant sources.6
The understanding that a government's expressed view of
its own law is ordinarily entitled to substantial but not
conclusive weight is also consistent with two international
treaties that establish formal mechanisms by which one government
may obtain from another an offcial statement characterizing
its laws. Those treaties specify that “[t]he information
given in the reply shall not bind the judicial authority
from which the request emanated.” European Convention
on Information on Foreign Law, Art. 8, June 7, 1968, 720
U. N. T. S. 154; see Inter-American Convention on Proof of
and Information on Foreign Law, Art. 6, May 8, 1979,
O. A. S. T. S. 1439 U. N. T. S. 111 (similar). Although the
United States is not a party to those treaties, they refect an
international practice inconsistent with the Court of Appeals'
“binding, if reasonable” resolution.
* * *
Because the Court of Appeals concluded that the District
Court was bound to defer to the Ministry's brief, the court
did not consider the shortcomings the District Court identifed
in the Ministry's position or other aspects of “the [D]istrict
[C]ourt's careful and thorough treatment of the evidence
before it.” 837 F. 3d, at 191, n. 10. The correct
interpretation of Chinese law is not before this Court, and
we take no position on it. But the materials identifed by
the District Court were at least relevant to the weight the
6 The Chinese sellers assert, see Supp. Brief for Respondents 7–8, that
the United States sought a greater degree of deference in a 2002 submission
to a World Trade Organization panel. In fact, the submission acknowledged
that “the Panel is not bound to accept the interpretation
[of U. S. law] presented by the United States.” Brief for United States
as Amicus Curiae 29, n. 6 (quoting Second Written Submission of the
United States of America, United States—Section 129(c)(1) of the Uruguay
Round Agreements Act, WT/DS221 ¶11 (Mar. 8, 2002)).
Cite as: 585 U. S. 33 (2018) 47
Opinion of the Court
Ministry's submissions should receive and to the question
whether Chinese law required the Chinese sellers' conduct.
We therefore vacate the judgment of the Court of Appeals
and remand the case for renewed consideration consistent
with this opinion.
It is so ordered.
48 OCTOBER TERM, 2017
Syllabus
GILL et al. v. WHITFORD et al.
appeal from the united states district court for the
western district of wisconsin
No. 16–1161. Argued October 3, 2017—Decided June 18, 2018
Members of the Wisconsin Legislature are elected from single-member
legislative districts. Under the Wisconsin Constitution, the legislature
must redraw the boundaries of those districts following each census.
After the 2010 census, the legislature passed a new districting plan
known as Act 43. Twelve Democratic voters, the plaintiffs in this case,
alleged that Act 43 harms the Democratic Party's ability to convert
Democratic votes into Democratic seats in the legislature. They asserted
that Act 43 does this by “cracking” certain Democratic voters
among different districts in which those voters fail to achieve electoral
majorities and “packing” other Democratic voters in a few districts in
which Democratic candidates win by large margins. The plaintiffs argued
that the degree to which packing and cracking has favored one
political party over another can be measured by an “effciency gap” that
compares each party's respective “wasted” votes—i. e., votes cast for a
losing candidate or for a winning candidate in excess of what that candidate
needs to win—across all legislative districts. The plaintiffs
claimed that the statewide enforcement of Act 43 generated an excess
of wasted Democratic votes, thereby violating the plaintiffs' First
Amendment right of association and their Fourteenth Amendment right
to equal protection. The defendants, several members of the state election
commission, moved to dismiss the plaintiffs' claims. They argued
that the plaintiffs lacked standing to challenge the constitutionality of
Act 43 as a whole because, as individual voters, their legally protected
interests extend only to the makeup of the legislative district in which
they vote. The three-judge District Court denied the defendants' motion
and, following a trial, concluded that Act 43 was an unconstitutional
partisan gerrymander. Regarding standing, the court held that the
plaintiffs had suffered a particularized injury to their equal protection
rights.
Held: The plaintiffs have failed to demonstrate Article III standing.
Pp. 60–73.
(a) Over the past fve decades this Court has repeatedly been asked
to decide what judicially enforceable limits, if any, the Constitution sets
on partisan gerrymandering. Previous attempts at an answer have left
few clear landmarks for addressing the question and have generated
Cite as: 585 U. S. 48 (2018) 49
Syllabus
conficting views both of how to conceive of the injury arising from partisan
gerrymandering and of the appropriate role for the Federal Judiciary
in remedying that injury. See Gaffney v. Cummings, 412 U. S.
735, Davis v. Bandemer, 478 U. S. 109, Vieth v. Jubelirer, 541 U. S. 267,
and League of United Latin American Citizens v. Perry, 548 U. S. 399.
Pp. 60–64.
(b) A plaintiff may not invoke federal-court jurisdiction unless he can
show “a personal stake in the outcome of the controversy,” Baker v.
Carr, 369 U. S. 186, 204. That requirement ensures that federal courts
“exercise power that is judicial in nature,” Lance v. Coffman, 549 U. S.
437, 439, 441. To meet that requirement, a plaintiff must show an injury
in fact—his pleading and proof that he has suffered the “invasion
of a legally protected interest” that is “concrete and particularized,” i. e.,
which “affect[s] the plaintiff in a personal and individual way.” Lujan
v. Defenders of Wildlife, 504 U. S. 555, 560, and n. 1.
The right to vote is “individual and personal in nature,” Reynolds v.
Sims, 377 U. S. 533, 561, and “voters who allege facts showing disadvantage
to themselves as individuals have standing to sue” to remedy that
disadvantage, Baker, 369 U. S., at 206. The plaintiffs here alleged that
they suffered such injury from partisan gerrymandering, which works
through the “cracking” and “packing” of voters. To the extent that the
plaintiffs' alleged harm is the dilution of their votes, that injury is district
specifc. An individual voter in Wisconsin is placed in a single
district. He votes for a single representative. The boundaries of the
district, and the composition of its voters, determine whether and to
what extent a particular voter is packed or cracked. A plaintiff who
complains of gerrymandering, but who does not live in a gerrymandered
district, “assert[s] only a generalized grievance against governmental
conduct of which he or she does not approve.” United States v. Hays,
515 U. S. 737, 745.
The plaintiffs argue that their claim, like the claims presented in
Baker and Reynolds, is statewide in nature. But the holdings in those
cases were expressly premised on the understanding that the injuries
giving rise to those claims were “individual and personal in nature,”
Reynolds, 377 U. S., at 561, because the claims were brought by voters
who alleged “facts showing disadvantage to themselves as individuals,”
Baker, 369 U. S., at 206. The plaintiffs' mistaken insistence that the
claims in Baker and Reynolds were “statewide in nature” rests on a
failure to distinguish injury from remedy. In those malapportionment
cases, the only way to vindicate an individual plaintiff's right to an
equally weighted vote was through a wholesale “restructuring of the
geographical distribution of seats in a state legislature.” Reynolds, 377
U. S., at 561. Here, the plaintiffs' claims turn on allegations that their
50 GILL v. WHITFORD
Syllabus
votes have been diluted. Because that harm arises from the particular
composition of the voter's own district, remedying the harm does not
necessarily require restructuring all of the State's legislative districts.
It requires revising only such districts as are necessary to reshape the
voter's district. This fts the rule that a “remedy must of course be
limited to the inadequacy that produced the injury in fact that the plaintiff
has established.” Lewis v. Casey, 518 U. S. 343, 357.
The plaintiffs argue that their legal injury also extends to the statewide
harm to their interest “in their collective representation in the
legislature,” and in infuencing the legislature's overall “composition and
policymaking.” Brief for Appellees 31. To date, however, the Court
has not found that this presents an individual and personal injury of the
kind required for Article III standing. A citizen's interest in the overall
composition of the legislature is embodied in his right to vote for his
representative. The harm asserted by the plaintiffs in this case is best
understood as arising from a burden on their own votes. Pp. 64–69.
(c) Four of the plaintiffs in this case pleaded such a particularized
burden. But as their case progressed to trial, they failed to pursue
their allegations of individual harm. They instead rested their case on
their theory of statewide injury to Wisconsin Democrats, in support
of which they offered three kinds of evidence. First, they presented
testimony pointing to the lead plaintiff's hope of achieving a Democratic
majority in the legislature. Under the Court's cases to date, that is a
collective political interest, not an individual legal interest. Second,
they produced evidence regarding the mapmakers' deliberations as they
drew district lines. The District Court relied on this evidence in concluding
that those mapmakers sought to understand the partisan effect
of the maps they were drawing. But the plaintiffs' establishment of
injury in fact turns on effect, not intent, and requires a showing of a
burden on the plaintiffs' votes that is “actual or imminent, not `conjectural'
or `hypothetical.' ” Defenders of Wildlife, 504 U. S., at 560.
Third, the plaintiffs presented partisan-asymmetry studies showing that
Act 43 had skewed Wisconsin's statewide map in favor of Republicans.
Those studies do not address the effect that a gerrymander has on the
votes of particular citizens. They measure instead the effect that a
gerrymander has on the fortunes of political parties. That shortcoming
confrms the fundamental problem with the plaintiffs' case as presented
on this record. It is a case about group political interests, not individual
legal rights. Pp. 69–72.
(d) Where a plaintiff has failed to demonstrate standing, this Court
usually directs dismissal. See, e. g., DaimlerChrysler Corp. v. Cuno,
547 U. S. 332, 354. Here, however, where the case concerns an unsettled
kind of claim that the Court has not agreed upon, the contours and
Cite as: 585 U. S. 48 (2018) 51
Syllabus
justiciability of which are unresolved, the case is remanded to the District
Court to give the plaintiffs an opportunity to prove concrete and
particularized injuries using evidence that would tend to demonstrate a
burden on their individual votes. Cf. Alabama Legislative Black Caucus
v. Alabama, 575 U. S. 254, 264–265. Pp. 72–73.
218 F. Supp. 3d 837, vacated and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Kennedy,
Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined, and in
which Thomas and Gorsuch, JJ., joined except as to Part III. Kagan,
J., fled a concurring opinion, in which Ginsburg, Breyer, and Sotomayor,
JJ., joined, post, p. 73. Thomas, J., fled an opinion concurring
in part and concurring in the judgment, in which Gorsuch, J., joined,
post, p. 86.
Misha Tseytlin, Solicitor General of Wisconsin, argued the
cause for appellants. With him on the briefs were Brad D.
Schimel, Attorney General of Wisconsin, Kevin M. LeRoy,
Deputy Solicitor General, Ryan J. Walsh, Chief Deputy Solicitor
General, Amy C. Miller, Assistant Solicitor General,
and Brian P. Keenan, Assistant Attorney General.
Erin E. Murphy argued the cause for Wisconsin State
Senate et al. as amici curiae urging reversal. With her on
the brief were Paul D. Clement and Kevin St. John.
Paul M. Smith argued the cause for appellees. With him
on the brief were J. Gerald Hebert, Danielle M. Lang, Nicholas
O. Stephanopoulos, Ruth M. Greenwood, Jessica Ring
Amunson, Michele Odorizzi, Douglas M. Poland, and Peter
G. Earle.*
*Briefs of amici curiae urging reversal were fled for the State of Texas
et al. by Ken Paxton, Attorney General of Texas, Scott A. Keller, Solicitor
General, Jeffrey C. Mateer, First Assistant Attorney General, Matthew H.
Frederick, Deputy Solicitor General, and Kristofer S. Monson, Assistant
Attorney General, and by the Attorneys General for their respective
States as follows: Steve Marshall of Alabama, Mark Brnovich of Arizona,
Leslie Rutledge of Arkansas, Christopher M. Carr of Georgia, Curtis T.
Hill, Jr., of Indiana, Derek Schmidt of Kansas, Jeff Landry of Louisiana,
Bill Schuette of Michigan, Joshua D. Hawley of Missouri, Adam Paul Laxalt
of Nevada, Michael DeWine of Ohio, Mike Hunter of Oklahoma, Alan
Wilson of South Carolina, Sean D. Reyes of Utah, and Patrick Morrisey
52 GILL v. WHITFORD
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
The State of Wisconsin, like most other States, entrusts to
its legislature the periodic task of redrawing the boundaries
of West Virginia; for the American Civil Rights Union et al. by J. Christian
Adams and Kaylan L. Phillips; for Judicial Watch, Inc., et al. by
Robert D. Popper, Chris Fedeli, and Lauren M. Burke; for the Legacy
Foundation by Thomas J. Josefak; for the Majority Leader and Temporary
President of the New York State Senate et al. by David L. Lewis;
for the National Republican Congressional Committee by Jason Torchinsky;
for the Republican National Committee by Michael T. Morley and
John R. Phillippe, Jr.; for the Republican State Leadership Committee by
Efrem M. Braden, Katherine L. McKnight, and Richard B. Raile; for
the Southeastern Legal Foundation by John J. Park, Jr., and Kimberly S.
Hermann; for Tennessee State Senators by John L. Ryder and Linda
Carver Whitlow Knight; for the Wisconsin Institute for Law & Liberty
by Douglas R. Cox, Amir C. Tayrani, and Richard M. Esenberg; and for
Wisconsin Manufacturers & Commerce by Jordan C. Corning and Eric
M. McLeod.
Briefs of amici curiae urging affrmance were fled for the State of
Oregon et al. by Ellen F. Rosenblum, Attorney General of Oregon, Benjamin
Gutman, Solicitor General, and Erin K. Galli, Jona J. Maukonen,
Cecil Reniche-Smith, and Jordan R. Silk, Assistant Attorneys General,
and by the Attorneys General for their respective jurisdictions as follows:
Jahna Lindemuth of Alaska, Xavier Becerra of California, George Jepsen
of Connecticut, Matthew P. Denn of Delaware, Karl A. Racine of the District
of Columbia, Douglas S. Chin of Hawaii, Lisa Madigan of Illinois,
Thomas J. Miller of Iowa, Andy Beshear of Kentucky, Janet T. Mills of
Maine, Maura Healey of Massachusetts, Lori Swanson of Minnesota, Hector
Balderas of New Mexico, Eric T. Schneiderman of New York, Peter
F. Kilmartin of Rhode Island, Thomas J. Donovan, Jr., of Vermont, and
Robert W. Ferguson of Washington; for the American Civil Liberties
Union et al. by Perry M. Grossman, Arthur N. Eisenberg, Samuel Issacharoff,
T. Alora Thomas, Theresa J. Lee, Dale E. Ho, Cecillia D. Wang,
David D. Cole, and Laurence J. Dupuis; for the American Jewish Committee
et al. by David Leit and Natalie J. Kraner; for the Bipartisan Group of
Current and Former Members of Congress by Seth P. Waxman, Jonathan
Cedarbaum, Ari J. Savitzky, and Jason D. Hirsch; for Bipartisan Group
of 65 Current and Former State Legislators by Vincent Levy and Gregory
Dubinsky; for the Brennan Center for Justice at N. Y. U. School of Law
by Anton Metlitsky, Bradley N. Garcia, Wendy R. Weiser, Michael C. Li,
Cite as: 585 U. S. 48 (2018) 53
Opinion of the Court
of the State's legislative districts. A group of Wisconsin
Democratic voters fled a complaint in the District Court,
alleging that the legislature carried out this task with an eye
to diminishing the ability of Wisconsin Democrats to convert
Democratic votes into Democratic seats in the legislature.
Daniel I. Weiner, and Thomas F. Wolf; for the California Citizens Redistricting
Commission et al. by Brian A. Sutherland and Benjamin R. Fliegel;
for the Center for Media and Democracy by Joseph H. Yeager, Jr.,
Harmony A. Mappes, Dulany Lucetta Pope, Matthew B. Harris, Jeffrey
P. Justman, and Theodore R. Boehm; for Colleagues of Norman Dorsen
by Burt Neuborne, pro se; for Common Cause by Gregory L. Diskant,
Jonah M. Knobler, Emmet J. Bondurant, and Edwin M. Speas, Jr.; for
Constitutional Law Professors by Kathleen M. Sullivan and Daniel H.
Bromberg; for Current Members of Congress et al. by Elizabeth B. Wydra,
Brianne J. Gorod, and David H. Gans; for Election Law Scholars et al. by
Bradley S. Phillips; for FairVote et al. by Justin A. Nelson; for the Georgia
State Conference of the NAACP et al. by Kristen Clarke, Jon Greenbaum,
Ezra D. Rosenberg, William V. Custer, and Jennifer B. Dempsey;
for Historians by Clifford M. Sloan; for the International Municipal Lawyers
Association et al. by Paul A. Diller, Charles W. Thompson, Jr., and
Amanda Kellar Karras; for Law Professors by Pamela S. Karlan, Jeffrey
L. Fisher, and David T. Goldberg; for the League of Conservation Voters
et al. by Ira M. Feinberg; for the League of Women Voters by Kathleen
R. Hartnett and Lloyd Leonard; for the NAACP Legal Defense & Educational
Fund et al. by Justin Levitt, Sherrilyn A. Ifll, Janai S. Nelson,
Samuel Spital, Leah C. Aden, and Laura W. Brill; for Political Geography
Scholars by Tacy F. Flint, Richard H. Pildes, and Jeffrey T. Green; for
Political Science Professors by Robert A. Atkins, Nicholas Groombridge,
and Andrew J. Ehrlich; for Represent.Us et al. by Atara Miller, Daniel
M. Perry, and Scott Greytak; for Robin Best et al. by Steven J. Hyman,
Alan E. Sash, and Jacqueline C. Gerrald; for David Boyle by Mr. Boyle,
pro se; for Sen. Bill Brock et al. by David C. Frederick and Charles Fried;
for Heather K. Gerken et al. by Ms. Gerken, pro se, and Kevin K. Russell;
for Eric S. Lander by H. Reed Witherby; for Sen. John McCain et al. by
Mark W. Mosier; for D. Thorne Rave III by Mr. Rave, pro se; and for 44
Election Law Scholars et al. by Andrew Chin, pro se.
Briefs of amici curiae were fled for the Plaintiffs in the Maryland Redistricting
Litigation Benisek v. Lamone by Michael B. Kimberly and
Paul W. Hughes; for Bernard Grofman et al. by E. Joshua Rosenkranz,
Rachel Wainer Apter, and Thomas M. Bondy; and for Eric McGhee by
Daniel F. Kolb.
54 GILL v. WHITFORD
Opinion of the Court
The plaintiffs asserted that, in so doing, the legislature had
infringed their rights under the First and Fourteenth
Amendments.
But a plaintiff seeking relief in federal court must frst
demonstrate that he has standing to do so, including that he
has “a personal stake in the outcome,” Baker v. Carr, 369
U. S. 186, 204 (1962), distinct from a “generally available
grievance about government,” Lance v. Coffman, 549 U. S.
437, 439 (2007) (per curiam). That threshold requirement
“ensures that we act as judges, and do not engage in policymaking
properly left to elected representatives.” Hollingsworth
v. Perry, 570 U. S. 693, 700 (2013). Certain of the
plaintiffs before us alleged that they had such a personal
stake in this case, but never followed up with the requisite
proof. The District Court and this Court therefore lack the
power to resolve their claims. We vacate the judgment and
remand the case for further proceedings, in the course of
which those plaintiffs may attempt to demonstrate standing
in accord with the analysis in this opinion.
I
Wisconsin's Legislature consists of a State Assembly and
a State Senate. Wis. Const., Art. IV, § 1. The 99 members
of the Assembly are chosen from single districts that must
“consist of contiguous territory and be in as compact form as
practicable.” § 4. State senators are likewise chosen from
single-member districts, which are laid on top of the State
Assembly districts so that three Assembly districts form one
Senate district. See § 5; Wis. Stat. § 4.001 (2011).
The Wisconsin Constitution gives the legislature the responsibility
to “apportion and district anew the members of
the senate and assembly” at the frst session following each
census. Art. IV, § 3. In recent decades, however, that responsibility
has just as often been taken up by federal courts.
Following the census in 1980, 1990, and 2000, federal courts
drew the State's legislative districts when the legislature
Cite as: 585 U. S. 48 (2018) 55
Opinion of the Court
and the Governor—split on party lines—were unable to
agree on new districting plans. The legislature has broken
the logjam just twice in the last 40 years. In 1983, a Democratic
legislature passed, and a Democratic Governor
signed, a new districting plan that remained in effect until
the 1990 census. See 1983 Wis. Laws ch. 4. In 2011, a Republican
legislature passed, and a Republican Governor
signed, the districting plan at issue here, known as Act 43.
See Wis. Stat. §§ 4.009, 4.01–4.99; 2011 Wis. Laws ch. 4. Following
the passage of Act 43, Republicans won majorities in
the State Assembly in the 2012 and 2014 elections. In 2012,
Republicans won 60 Assembly seats with 48.6% of the twoparty
statewide vote for Assembly candidates. In 2014, Republicans
won 63 Assembly seats with 52% of the statewide
vote. 218 F. Supp. 3d 837, 853 (WD Wis. 2016).
In July 2015, twelve Wisconsin voters fled a complaint in
the Western District of Wisconsin challenging Act 43. The
plaintiffs identifed themselves as “supporters of the public
policies espoused by the Democratic Party and of Democratic
Party candidates.” 1 App. 32, Complaint ¶15. They alleged
that Act 43 is a partisan gerrymander that “unfairly
favor[s] Republican voters and candidates,” and that it does
so by “cracking” and “packing” Democratic voters around
Wisconsin. Id., at 28–30, ¶¶5–7. As they explained:
“Cracking means dividing a party's supporters among
multiple districts so that they fall short of a majority
in each one. Packing means concentrating one party's
backers in a few districts that they win by overwhelming
margins.” Id., at 29, ¶5.
Four of the plaintiffs—Mary Lynne Donohue, Wendy Sue
Johnson, Janet Mitchell, and Jerome Wallace—alleged that
they lived in State Assembly districts where Democrats
have been cracked or packed. Id., at 34–36, ¶¶20, 23, 24, 26;
see id., at 50–53, ¶¶60–70 (describing packing and cracking
in Assembly Districts 22, 26, 66, and 91). All of the plain56
GILL v. WHITFORD
Opinion of the Court
tiffs also alleged that, regardless of “whether they themselves
reside in a district that has been packed or cracked,”
they have been “harmed by the manipulation of district
boundaries” because Democrats statewide “do not have the
same opportunity provided to Republicans to elect representatives
of their choice to the Assembly.” Id., at 33, ¶16.
The plaintiffs argued that, on a statewide level, the degree
to which packing and cracking has favored one party over
another can be measured by a single calculation: an “effciency
gap” that compares each party's respective “wasted”
votes across all legislative districts. “Wasted” votes are
those cast for a losing candidate or for a winning candidate
in excess of what that candidate needs to win. Id., at 28–
29, ¶5. The plaintiffs alleged that Act 43 resulted in an unusually
large effciency gap that favored Republicans. Id.,
at 30, ¶7. They also submitted a “Demonstration Plan” that,
they asserted, met all of the legal criteria for apportionment,
but was at the same time “almost perfectly balanced in its
partisan consequences.” Id., at 31, ¶10. They argued that
because Act 43 generated a large and unnecessary effciency
gap in favor of Republicans, it violated the First Amendment
right of association of Wisconsin Democratic voters and
their Fourteenth Amendment right to equal protection.
The plaintiffs named several members of the state election
commission as defendants in the action. Id., at 36, ¶¶28–30.
The election offcials moved to dismiss the complaint.
They argued, among other things, that the plaintiffs lacked
standing to challenge the constitutionality of Act 43 as a
whole because, as individual voters, their legally protected
interests extend only to the makeup of the legislative districts
in which they vote. A three-judge panel of the District
Court, see 28 U. S. C. § 2284(a), denied the defendants'
motion. In the District Court's view, the plaintiffs “identif[
ied] their injury as not simply their inability to elect a representative
in their own districts, but also their reduced opportunity
to be represented by Democratic legislators across
Cite as: 585 U. S. 48 (2018) 57
Opinion of the Court
the state.” Whitford v. Nichol, 151 F. Supp. 3d 918, 924
(WD Wis. 2015). It therefore followed, in the District
Court's opinion, that “[b]ecause plaintiffs' alleged injury in
this case relates to their statewide representation, . . . they
should be permitted to bring a statewide claim.” Id., at 926.
The case proceeded to trial, where the plaintiffs presented
testimony from four fact witnesses. The frst was lead
plaintiff William Whitford, a retired law professor at the
University of Wisconsin in Madison. Whitford testifed
that he lives in Madison in the 76th Assembly District, and
acknowledged on cross-examination that this is, under
any plausible circumstances, a heavily Democratic district.
Under Act 43, the Democratic share of the Assembly vote in
Whitford's district is 81.9%; under the plaintiffs' ideal map—
their Demonstration Plan—the projected Democratic share
of the Assembly vote in Whitford's district would be 82%.
147 Record 35–36. Whitford therefore conceded that Act 43
had not “affected [his] ability to vote for and elect a Democrat
in [his] district.” Id., at 37. Whitford testifed that he
had nevertheless suffered a harm “relate[d] to [his] ability
to engage in campaign activity to achieve a majority in the
Assembly and the Senate.” Ibid. As he explained, “[t]he
only practical way to accomplish my policy objectives is to
get a majority of the Democrats in the Assembly and the
Senate ideally in order to get the legislative product I prefer.”
Id., at 33.
The plaintiffs also presented the testimony of legislative
aides Adam Foltz and Tad Ottman, as well as that of Professor
Ronald Gaddie, a political scientist who helped design the
Act 43 districting map, regarding how that map was designed
and adopted. In particular, Professor Gaddie testifed
about his creation of what he and the District Court
called “S curves”: color-coded tables of the estimated partisan
skew of different draft redistricting maps. See 218
F. Supp. 3d, at 850, 858. The colors corresponded with assessments
regarding whether different districts tilted Re58
GILL v. WHITFORD
Opinion of the Court
publican or Democratic under various statewide political
scenarios. The S curve for the map that was eventually
adopted projected that “Republicans would maintain a majority
under any likely voting scenario,” with Democrats
needing 54% of the statewide vote to secure a majority in
the legislature. Id., at 852.
Finally, the parties presented testimony from four expert
witnesses. The plaintiffs' experts, Professor Kenneth
Mayer and Professor Simon Jackman, opined that—according
to their effciency-gap analyses—the Act 43 map would
systematically favor Republicans for the duration of the decade.
See id., at 859–861. The defendants' experts, Professor
Nicholas Goedert and Sean Trende, opined that effciency
gaps alone are unreliable measures of durable partisan advantage,
and that the political geography of Wisconsin currently
favors Republicans because Democrats—who tend to
be clustered in large cities—are ineffciently distributed in
many parts of Wisconsin for purposes of winning elections.
See id., at 861–862.
At the close of evidence, the District Court concluded—
over the dissent of Judge Griesbach—that the plaintiffs had
proved a violation of the First and Fourteenth Amendments.
The court set out a three-part test for identifying unconstitutional
gerrymanders: A redistricting map violates the First
Amendment and the Equal Protection Clause of the Fourteenth
Amendment if it “(1) is intended to place a severe
impediment on the effectiveness of the votes of individual
citizens on the basis of their political affliation, (2) has that
effect, and (3) cannot be justifed on other, legitimate legislative
grounds.” Id., at 884.
The court went on to fnd, based on evidence concerning
the manner in which Act 43 had been adopted, that “one of
the purposes of Act 43 was to secure Republican control of
the Assembly under any likely future electoral scenario for
the remainder of the decade.” Id., at 896. It also found
that the “more effcient distribution of Republican voters has
Cite as: 585 U. S. 48 (2018) 59
Opinion of the Court
allowed the Republican Party to translate its votes into
seats with signifcantly greater ease and to achieve—and
preserve—control of the Wisconsin legislature.” Id., at 905.
As to the third prong of its test, the District Court concluded
that the burdens the Act 43 map imposed on Democrats could
not be explained by “legitimate state prerogatives [or] neutral
factors.” Id., at 911. The court recognized that “Wisconsin's
political geography, particularly the high concentration
of Democratic voters in urban centers like Milwaukee
and Madison, affords the Republican Party a natural, but
modest, advantage in the districting process,” but found that
this inherent geographic disparity did not account for the
magnitude of the Republican advantage. Id., at 921, 924.
Regarding standing, the court held that the plaintiffs had
a “cognizable equal protection right against state-imposed
barriers on [their] ability to vote effectively for the party of
[their] choice.” Id., at 928. It concluded that Act 43 “prevent[
ed] Wisconsin Democrats from being able to translate
their votes into seats as effectively as Wisconsin Republicans,”
and that “Wisconsin Democrats, therefore, have suffered
a personal injury to their Equal Protection rights.”
Ibid. The court turned away the defendants' argument
that the plaintiffs' injury was not suffciently particularized
by fnding that “[t]he harm that the plaintiffs have experienced
. . . is one shared by Democratic voters in the State of
Wisconsin. The dilution of their votes is both personal and
acute.” Id., at 930.
Judge Griesbach dissented. He wrote that, under this
Court's existing precedents, “partisan intent” to beneft one
party rather than the other in districting “is not illegal, but
is simply the consequence of assigning the task of redistricting
to the political branches.” Id., at 939. He observed
that the plaintiffs had not attempted to prove that “specifc
districts . . . had been gerrymandered,” but rather had “relied
on statewide data and calculations.” Ibid. And he argued
that the plaintiffs' proof, resting as it did on statewide
60 GILL v. WHITFORD
Opinion of the Court
data, had “no relevance to any gerrymandering injury alleged
by a voter in a single district.” Id., at 952. On that
basis, Judge Griesbach would have entered judgment for
the defendants.
The District Court enjoined the defendants from using the
Act 43 map in future elections and ordered them to have a
remedial districting plan in place no later than November
1, 2017. The defendants appealed directly to this Court, as
provided under 28 U. S. C. § 1253. We stayed the District
Court's judgment and postponed consideration of our jurisdiction.
582 U. S. 914 (2017).
II
A
Over the past fve decades this Court has been repeatedly
asked to decide what judicially enforceable limits, if any, the
Constitution sets on the gerrymandering of voters along partisan
lines. Our previous attempts at an answer have left
few clear landmarks for addressing the question. What our
precedents have to say on the topic is, however, instructive
as to the myriad competing considerations that partisan gerrymandering
claims involve. Our efforts to sort through
those considerations have generated conficting views both
of how to conceive of the injury arising from partisan gerrymandering
and of the appropriate role for the Federal Judiciary
in remedying that injury.
Our frst consideration of a partisan gerrymandering claim
came in Gaffney v. Cummings, 412 U. S. 735 (1973). There
a group of plaintiffs challenged the constitutionality of a Connecticut
redistricting plan that “consciously and overtly
adopted and followed a policy of `political fairness,' which
aimed at a rough scheme of proportional representation of
the two major political parties.” Id., at 738. To that end,
the redistricting plan broke up numerous towns, “wiggl[ing]
and joggl[ing]” district boundary lines in order to “ferret out
pockets of each party's strength.” Id., at 738, and n. 3, 752,
Cite as: 585 U. S. 48 (2018) 61
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n. 18. The plaintiffs argued that, notwithstanding the rough
population equality of the districts, the plan was unconstitutional
because its consciously political design was “nothing
less than a gigantic political gerrymander.” Id., at 752.
This Court rejected that claim. We reasoned that it would
be “idle” to hold that “any political consideration taken into
account in fashioning a reapportionment plan is suffcient to
invalidate it,” because districting “inevitably has and is intended
to have substantial political consequences.” Id., at
752–753.
Thirteen years later came Davis v. Bandemer, 478 U. S.
109 (1986). Unlike the bipartisan gerrymander at issue in
Gaffney, the allegation in Bandemer was that Indiana Republicans
had gerrymandered Indiana's legislative districts
“to favor Republican incumbents and candidates and to disadvantage
Democratic voters” through what the plaintiffs
called the “stacking” (packing) and “splitting” (cracking) of
Democrats. 478 U. S., at 116–117 (plurality opinion). A
majority of the Court agreed that the case before it was justiciable.
Id., at 125, 127. The Court could not, however,
settle on a standard for what constitutes an unconstitutional
partisan gerrymander.
Four Justices would have required the Bandemer plaintiffs
to “prove both intentional discrimination against an identifable
political group and an actual discriminatory effect on
that group.” Id., at 127. In that plurality's view, the plaintiffs
had failed to make a suffcient showing on the latter
point because their evidence of unfavorable election results
for Democrats was limited to a single election cycle. See
id., at 135.
Three Justices, concurring in the judgment, would have
held that the “Equal Protection Clause does not supply judicially
manageable standards for resolving purely political
gerrymandering claims.” Id., at 147 (opinion of O'Connor,
J.). Justice O'Connor took issue, in particular, with the
plurality's focus on factual questions concerning “statewide
62 GILL v. WHITFORD
Opinion of the Court
electoral success.” Id., at 158. She warned that allowing
district courts to “strike down apportionment plans on the
basis of their prognostications as to the outcome of future
elections or future apportionments invites `fndings' on matters
as to which neither judges nor anyone else can have any
confdence.” Id., at 160.
Justice Powell, joined by Justice Stevens, concurred in
part and dissented in part. In his view, the plaintiffs' claim
was not simply that their “voting strength was diluted statewide,”
but rather that “certain key districts were grotesquely
gerrymandered to enhance the election prospects of
Republican candidates.” Id., at 162, 169. Thus, he would
have focused on the question “whether the boundaries of the
voting districts have been distorted deliberately and arbitrarily
to achieve illegitimate ends.” Id., at 165.
Eighteen years later, we revisited the issue in Vieth v.
Jubelirer, 541 U. S. 267 (2004). In that case the plaintiffs
argued that Pennsylvania's Legislature had created “meandering
and irregular” congressional districts that “ignored
all traditional redistricting criteria, including the preservation
of local government boundaries,” in order to provide an
advantage to Republican candidates for Congress. Id., at
272–273 (plurality opinion) (brackets omitted).
The Vieth Court broke down on numerous lines. Writing
for a four-Justice plurality, Justice Scalia would have held
that the plaintiffs' claims were nonjusticiable because there
was no “judicially discernible and manageable standard”
by which to decide them. Id., at 306. On those grounds,
the plurality affrmed the dismissal of the claims. Ibid.
Justice Kennedy concurred in the judgment. He noted
that “there are yet no agreed upon substantive principles of
fairness in districting,” and that, consequently, “we have no
basis on which to defne clear, manageable, and politically
neutral standards for measuring the particular burden” on
constitutional rights. Id., at 307–308. He rejected the
principle advanced by the plaintiffs—that “a majority of votCite
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Opinion of the Court
ers in [Pennsylvania] should be able to elect a majority of
[Pennsylvania's] congressional delegation”—as a “precept”
for which there is “no authority.” Id., at 308. Yet Justice
Kennedy recognized the possibility that “in another case a
standard might emerge that suitably demonstrates how an
apportionment's de facto incorporation of partisan classifcations
burdens” representational rights. Id., at 312.
Four Justices dissented in three different opinions. Justice
Stevens would have permitted the plaintiffs' claims to
proceed on a district-by-district basis, using a legal standard
similar to the standard for racial gerrymandering set forth
in Shaw v. Hunt, 517 U. S. 899 (1996). See 541 U. S., at 335–
336, 339. Under this standard, any district with a “bizarre
shape” for which the only possible explanation was “a naked
desire to increase partisan strength” would be found unconstitutional
under the Equal Protection Clause. Id., at 339.
Justice Souter, joined by Justice Ginsburg, agreed that a
plaintiff alleging unconstitutional partisan gerrymandering
should proceed on a district-by-district basis, as “we would
be able to call more readily on some existing law when we
defned what is suspect at the district level.” See id., at
346–347.
Justice Breyer dissented on still other grounds. In his
view, the drawing of single-member legislative districts—
even according to traditional criteria—is “rarely . . . politically
neutral.” Id., at 359. He therefore would have
distinguished between gerrymandering for passing political
advantage and gerrymandering leading to the “unjustifed
entrenchment” of a political party. Id., at 360–361.
The Court last took up this question in League of United
Latin American Citizens v. Perry, 548 U. S. 399 (2006)
(LULAC). The plaintiffs there challenged a mid-decade redistricting
map passed by the Texas Legislature. As in
Vieth, a majority of the Court could fnd no justiciable
standard by which to resolve the plaintiffs' partisan gerrymandering
claims. Relevant to this case, an amicus brief
64 GILL v. WHITFORD
Opinion of the Court
in support of the LULAC plaintiffs proposed a “symmetry
standard” to “measure partisan bias” by comparing how the
two major political parties “would fare hypothetically if they
each . . . received a given percentage of the vote.” 548 U. S.,
at 419 (opinion of Kennedy, J.). Justice Kennedy noted
some wariness at the prospect of “adopting a constitutional
standard that invalidates a map based on unfair results that
would occur in a hypothetical state of affairs.” Id., at 420.
Aside from that problem, he wrote, the partisan bias standard
shed no light on “how much partisan dominance is too
much.” Ibid. Justice Kennedy therefore concluded that
“asymmetry alone is not a reliable measure of unconstitutional
partisanship.” Ibid.
Justice Stevens would have found that the Texas map was
a partisan gerrymander based in part on the asymmetric advantage
it conferred on Republicans in converting votes to
seats. Id., at 466–467, 471–473 (opinion concurring in part
and dissenting in part). Justice Souter, writing for himself
and Justice Ginsburg, noted that he would not “rule out
the utility of a criterion of symmetry,” and that “further attention
could be devoted to the administrability of such a
criterion at all levels of redistricting and its review.” Id., at
483–484 (opinion concurring in part and dissenting in part).
B
At argument on appeal in this case, counsel for the plaintiffs
argued that this Court can address the problem of partisan
gerrymandering because it must: The Court should exercise
its power here because it is the “only institution in the
United States” capable of “solv[ing] this problem.” Tr. of
Oral Arg. 62. Such invitations must be answered with care.
“Failure of political will does not justify unconstitutional
remedies.” Clinton v. City of New York, 524 U. S. 417, 449
(1998) (Kennedy, J., concurring). Our power as judges to
“say what the law is,” Marbury v. Madison, 1 Cranch 137,
177 (1803), rests not on the default of politically accountable
Cite as: 585 U. S. 48 (2018) 65
Opinion of the Court
offcers, but is instead grounded in and limited by the necessity
of resolving, according to legal principles, a plaintiff's
particular claim of legal right.
Our considerable efforts in Gaffney, Bandemer, Vieth, and
LULAC leave unresolved whether such claims may be
brought in cases involving allegations of partisan gerrymandering.
In particular, two threshold questions remain: what
is necessary to show standing in a case of this sort, and
whether those claims are justiciable. Here we do not decide
the latter question because the plaintiffs in this case have
not shown standing under the theory upon which they based
their claims for relief.
To ensure that the Federal Judiciary respects “ the
proper—and properly limited—role of the courts in a democratic
society,” Allen v. Wright, 468 U. S. 737, 750 (1984), a
plaintiff may not invoke federal-court jurisdiction unless he
can show “a personal stake in the outcome of the controversy.”
Baker, 369 U. S., at 204. A federal court is not “a
forum for generalized grievances,” and the requirement of
such a personal stake “ensures that courts exercise power
that is judicial in nature.” Lance, 549 U. S., at 439, 441.
We enforce that requirement by insisting that a plaintiff satisfy
the familiar three-part test for Article III standing: that
he “(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 578 U. S. 330, 338 (2016). Foremost
among these requirements is injury in fact—a plaintiff's
pleading and proof that he has suffered the “invasion of a
legally protected interest” that is “concrete and particularized,”
i. e., which “affect[s] the plaintiff in a personal and individual
way.” Lujan v. Defenders of Wildlife, 504 U. S. 555,
560, and n. 1 (1992).
We have long recognized that a person's right to vote is
“individual and personal in nature.” Reynolds v. Sims, 377
U. S. 533, 561 (1964). Thus, “voters who allege facts show66
GILL v. WHITFORD
Opinion of the Court
ing disadvantage to themselves as individuals have standing
to sue” to remedy that disadvantage. Baker, 369 U. S., at
206. The plaintiffs in this case alleged that they suffered
such injury from partisan gerrymandering, which works
through “packing” and “cracking” voters of one party to disadvantage
those voters. 1 App. 28–29, 32–33, Complaint
¶¶5, 15. That is, the plaintiffs claim a constitutional right
not to be placed in legislative districts deliberately designed
to “waste” their votes in elections where their chosen candidates
will win in landslides (packing) or are destined to lose
by closer margins (cracking). Id., at 32–33, ¶15.
To the extent the plaintiffs' alleged harm is the dilution of
their votes, that injury is district specifc. An individual
voter in Wisconsin is placed in a single district. He votes
for a single representative. The boundaries of the district,
and the composition of its voters, determine whether and to
what extent a particular voter is packed or cracked. This
“disadvantage to [the voter] as [an] individual[ ],” Baker, 369
U. S., at 206, therefore results from the boundaries of the
particular district in which he resides. And a plaintiff's
remedy must be “limited to the inadequacy that produced
[his] injury in fact.” Lewis v. Casey, 518 U. S. 343, 357
(1996). In this case the remedy that is proper and suffcient
lies in the revision of the boundaries of the individual's own
district.
For similar reasons, we have held that a plaintiff who alleges
that he is the object of a racial gerrymander—a drawing
of district lines on the basis of race—has standing to
assert only that his own district has been so gerrymandered.
See United States v. Hays, 515 U. S. 737, 744–745 (1995). A
plaintiff who complains of gerrymandering, but who does not
live in a gerrymandered district, “assert[s] only a generalized
grievance against governmental conduct of which he or she
does not approve.” Id., at 745. Plaintiffs who complain of
racial gerrymandering in their State cannot sue to invalidate
the whole State's legislative districting map; such complaints
Cite as: 585 U. S. 48 (2018) 67
Opinion of the Court
must proceed “district by district.” Alabama Legislative
Black Caucus v. Alabama, 575 U. S. 254, 262 (2015).
The plaintiffs argue that their claim of statewide injury is
analogous to the claims presented in Baker and Reynolds,
which they assert were “statewide in nature” because they
rested on allegations that “districts throughout a state [had]
been malapportioned.” Brief for Appellees 29. But, as we
have already noted, the holdings in Baker and Reynolds
were expressly premised on the understanding that the injuries
giving rise to those claims were “individual and personal
in nature,” Reynolds, 377 U. S., at 561, because the claims
were brought by voters who alleged “facts showing
disadvantage to themselves as individuals,” Baker, 369 U. S.,
at 206.
The plaintiffs' mistaken insistence that the claims in Baker
and Reynolds were “statewide in nature” rests on a failure
to distinguish injury from remedy. In those malapportionment
cases, the only way to vindicate an individual plaintiff's
right to an equally weighted vote was through a wholesale
“restructuring of the geographical distribution of seats in a
state legislature.” Reynolds, 377 U. S., at 561; see, e. g.,
Moss v. Burkhart, 220 F. Supp. 149, 156–160 (WD Okla. 1963)
(directing the county-by-county reapportionment of the
Oklahoma Legislature), aff'd sub nom. Williams v. Moss, 378
U. S. 558 (1964) (per curiam).
Here, the plaintiffs' partisan gerrymandering claims turn
on allegations that their votes have been diluted. That
harm arises from the particular composition of the voter's
own district, which causes his vote—having been packed or
cracked—to carry less weight than it would carry in another,
hypothetical district. Remedying the individual voter's
harm, therefore, does not necessarily require restructuring
all of the State's legislative districts. It requires revising
only such districts as are necessary to reshape the voter's
district—so that the voter may be unpacked or uncracked,
as the case may be. Cf. Alabama Legislative Black Cau68
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Opinion of the Court
cus, 575 U. S., at 262–263. This fts the rule that a “remedy
must of course be limited to the inadequacy that produced
the injury in fact that the plaintiff has established.” Lewis,
518 U. S., at 357.
The plaintiffs argue that their legal injury is not limited
to the injury that they have suffered as individual voters,
but extends also to the statewide harm to their interest “in
their collective representation in the legislature,” and in infuencing
the legislature's overall “composition and policymaking.”
Brief for Appellees 31. But our cases to date
have not found that this presents an individual and personal
injury of the kind required for Article III standing. On the
facts of this case, the plaintiffs may not rely on “the kind of
undifferentiated, generalized grievance about the conduct of
government that we have refused to countenance in the
past.” Lance, 549 U. S., at 442. A citizen's interest in the
overall composition of the legislature is embodied in his right
to vote for his representative. And the citizen's abstract interest
in policies adopted by the legislature on the facts here
is a nonjusticiable “general interest common to all members
of the public.” Ex parte Lévitt, 302 U. S. 633, 634 (1937)
(per curiam).
We leave for another day consideration of other possible theories
of harm not presented here and whether those theories
might present justiciable claims giving rise to statewide remedies.
Justice Kagan’s concurring opinion endeavors to address
“other kinds of constitutional harm,” see post, at 80, perhaps
involving different kinds of plaintiffs, see post, at 80–81,
and differently alleged burdens, see post, at 81. But the opinion
of the Court rests on the understanding that we lack jurisdiction
to decide this case, much less to draw speculative and
advisory conclusions regarding others. See Public Workers
v. Mitchell, 330 U. S. 75, 90 (1947) (noting that courts must
“respect the limits of [their] unique authority” and engage in
“[ j]udicial exposition . . . only when necessary to decide defnite
issues between litigants”). The reasoning of this Court
Cite as: 585 U. S. 48 (2018) 69
Opinion of the Court
with respect to the disposition of this case is set forth in
this opinion and none other. And the sum of the standing
principles articulated here, as applied to this case, is that the
harm asserted by the plaintiffs is best understood as arising
from a burden on those plaintiffs' own votes. In this gerrymandering
context that burden arises through a voter's
placement in a “cracked” or “packed” district.
C
Four of the plaintiffs in this case—Mary Lynne Donohue,
Wendy Sue Johnson, Janet Mitchell, and Jerome Wallace—
pleaded a particularized burden along such lines. They alleged
that Act 43 had “dilut[ed] the infuence” of their votes
as a result of packing or cracking in their legislative districts.
See 1 App. 34–36, Complaint ¶¶20, 23, 24, 26. The
facts necessary to establish standing, however, must not only
be alleged at the pleading stage, but also proved at trial.
See Defenders of Wildlife, 504 U. S., at 561. As the proceedings
in the District Court progressed to trial, the plaintiffs
failed to meaningfully pursue their allegations of individual
harm. The plaintiffs did not seek to show such
requisite harm since, on this record, it appears that not a
single plaintiff sought to prove that he or she lives in a
cracked or packed district. They instead rested their case
at trial—and their arguments before this Court—on their
theory of statewide injury to Wisconsin Democrats, in support
of which they offered three kinds of evidence.
First, the plaintiffs presented the testimony of the lead
plaintiff, Professor Whitford. But Whitford's testimony
does not support any claim of packing or cracking of himself
as a voter. Indeed, Whitford expressly acknowledged that
Act 43 did not affect the weight of his vote. 147 Record
37. His testimony points merely to his hope of achieving a
Democratic majority in the legislature—what the plaintiffs
describe here as their shared interest in the composition
of “the legislature as a whole.” Brief for Appellees 32.
70 GILL v. WHITFORD
Opinion of the Court
Under our cases to date, that is a collective political interest,
not an individual legal interest, and the Court must be cautious
that it does not become “a forum for generalized grievances.”
Lance, 549 U. S., at 439, 441.
Second, the plaintiffs provided evidence regarding the
mapmakers' deliberations as they drew district lines. As
the District Court recounted, the plaintiffs' evidence showed
that the mapmakers “test[ed] the partisan makeup and performance
of districts as they might be confgured in different
ways.” 218 F. Supp. 3d, at 891. Each of the mapmakers'
alternative confgurations came with a table that listed the
number of “Safe” and “Lean” seats for each party, as well as
“Swing” seats. Ibid. The mapmakers also labeled certain
districts as ones in which “GOP seats [would be] strengthened
a lot,” id., at 893; 2 App. 344, or which would result in
“Statistical Pick Ups” for Republicans. 218 F. Supp. 3d, at
893 (alterations omitted). And they identifed still other districts
in which “GOP seats [would be] strengthened a little,”
“weakened a little,” or were “likely lost.” Ibid.
The District Court relied upon this evidence in concluding
that, “from the outset of the redistricting process, the drafters
sought to understand the partisan effects of the maps
they were drawing.” Id., at 895. That evidence may well
be pertinent with respect to any ultimate determination
whether the plaintiffs may prevail in their claims against the
defendants, assuming such claims present a justiciable controversy.
But the question at this point is whether the
plaintiffs have established injury in fact. That turns on effect,
not intent, and requires a showing of a burden on the
plaintiffs' votes that is “actual or imminent, not `conjectural'
or `hypothetical.' ” Defenders of Wildlife, 504 U. S., at 560.
Third, the plaintiffs offered evidence concerning the impact
that Act 43 had in skewing Wisconsin's statewide political
map in favor of Republicans. This evidence, which made
up the heart of the plaintiffs' case, was derived from partisanasymmetry
studies similar to those discussed in LULAC.
Cite as: 585 U. S. 48 (2018) 71
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The plaintiffs contend that these studies measure deviations
from “partisan symmetry,” which they describe as the “social
scientifc tenet that [districting] maps should treat parties
symmetrically.” Brief for Appellees 37. In the District
Court, the plaintiffs' case rested largely on a particular
measure of partisan asymmetry—the “effciency gap” of
wasted votes. See supra, at 56. That measure was frst
developed in two academic articles published shortly before
the initiation of this lawsuit. See Stephanopoulos & Mc-
Ghee, Partisan Gerrymandering and the Effciency Gap, 82
U. Chi. L. Rev. 831 (2015); McGhee, Measuring Partisan Bias
in Single-Member District Electoral Systems, 39 Leg. Studies
Q. 55 (2014).
The plaintiffs asserted in their complaint that the “effciency
gap captures in a single number all of a district plan's
cracking and packing.” 1 App. 28–29, Complaint ¶5 (emphasis
deleted). That number is calculated by subtracting the
statewide sum of one party's wasted votes from the statewide
sum of the other party's wasted votes and dividing the
result by the statewide sum of all votes cast, where “wasted
votes” are defned as all votes cast for a losing candidate
and all votes cast for a winning candidate beyond the 50%
plus one that ensures victory. See Brief for Eric McGhee
as Amicus Curiae 6, and n. 3. The larger the number
produced by that calculation, the greater the asymmetry between
the parties in their effciency in converting votes into
legislative seats. Though they take no frm position on the
matter, the plaintiffs have suggested that an effciency gap in
the range of 7% to 10% should trigger constitutional scrutiny.
See Brief for Appellees 52–53, and n. 17.
The plaintiffs and their amici curiae promise us that the
effciency gap and similar measures of partisan asymmetry
will allow the federal courts—armed with just “a pencil and
paper or a hand calculator”—to fnally solve the problem of
partisan gerrymandering that has confounded the Court for
decades. Brief for Heather K. Gerken et al. as Amici Cu72
GILL v. WHITFORD
Opinion of the Court
riae 27 (citing Wang, Let Math Save Our Democracy, N. Y.
Times, Dec. 5, 2015). We need not doubt the plaintiffs'
math. The diffculty for standing purposes is that these calculations
are an average measure. They do not address the
effect that a gerrymander has on the votes of particular citizens.
Partisan-asymmetry metrics such as the effciency
gap measure something else entirely: the effect that a gerrymander
has on the fortunes of political parties.
Consider the situation of Professor Whitford, who lives in
District 76, where, defendants contend, Democrats are “naturally”
packed due to their geographic concentration, with
that of plaintiff Mary Lynne Donohue, who lives in Assembly
District 26 in Sheboygan, where Democrats like her have
allegedly been deliberately cracked. By all accounts, Act 43
has not affected Whitford's individual vote for his Assembly
representative—even plaintiffs' own demonstration map resulted
in a virtually identical district for him. Donohue, on
the other hand, alleges that Act 43 burdened her individual
vote. Yet neither the effciency gap nor the other measures
of partisan asymmetry offered by the plaintiffs are capable
of telling the difference between what Act 43 did to Whitford
and what it did to Donohue. The single statewide measure
of partisan advantage delivered by the effciency gap treats
Whitford and Donohue as indistinguishable, even though
their individual situations are quite different.
That shortcoming confrms the fundamental problem with
the plaintiffs' case as presented on this record. It is a case
about group political interests, not individual legal rights.
But this Court is not responsible for vindicating generalized
partisan preferences. The Court's constitutionally prescribed
role is to vindicate the individual rights of the people
appearing before it.
III
In cases where a plaintiff fails to demonstrate Article III
standing, we usually direct the dismissal of the plaintiff's
claims. See, e. g., DaimlerChrysler Corp. v. Cuno, 547 U. S.
Cite as: 585 U. S. 48 (2018) 73
Kagan, J., concurring
332, 354 (2006). This is not the usual case. It concerns an
unsettled kind of claim this Court has not agreed upon, the
contours and justiciability of which are unresolved. Under
the circumstances, and in light of the plaintiffs' allegations
that Donohue, Johnson, Mitchell, and Wallace live in districts
where Democrats like them have been packed or cracked, we
decline to direct dismissal.
We therefore remand the case to the District Court so that
the plaintiffs may have an opportunity to prove concrete and
particularized injuries using evidence—unlike the bulk of
the evidence presented thus far—that would tend to demonstrate
a burden on their individual votes. Cf. Alabama Legislative
Black Caucus, 575 U. S., at 264–265 (remanding for
further consideration of the plaintiffs' gerrymandering
claims on a district-by-district basis). We express no view
on the merits of the plaintiffs' case. We caution, however,
that “standing is not dispensed in gross”: A plaintiff's remedy
must be tailored to redress the plaintiff's particular injury.
Cuno, 547 U. S., at 353.
The judgment of the District Court is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Kagan, with whom Justice Ginsburg, Justice
Breyer, and Justice Sotomayor join, concurring.
The Court holds today that a plaintiff asserting a partisan
gerrymandering claim based on a theory of vote dilution
must prove that she lives in a packed or cracked district in
order to establish standing. See ante, at 65–69. The Court
also holds that none of the plaintiffs here have yet made that
required showing. See ante, at 69.
I agree with both conclusions, and with the Court's decision
to remand this case to allow the plaintiffs to prove that
they live in packed or cracked districts, see ante this page.
I write to address in more detail what kind of evidence the
74 GILL v. WHITFORD
Kagan, J., concurring
present plaintiffs (or any additional ones) must offer to support
that allegation. And I write to make some observations
about what would happen if they succeed in proving
standing—that is, about how their vote dilution case could
then proceed on the merits. The key point is that the case
could go forward in much the same way it did below: Given
the charges of statewide packing and cracking, affecting a
slew of districts and residents, the challengers could make
use of statewide evidence and seek a statewide remedy.
I also write separately because I think the plaintiffs may
have wanted to do more than present a vote dilution theory.
Partisan gerrymandering no doubt burdens individual votes,
but it also causes other harms. And at some points in this
litigation, the plaintiffs complained of a different injury—
an infringement of their First Amendment right of association.
The Court rightly does not address that alternative
argument: The plaintiffs did not advance it with suffcient
clarity or concreteness to make it a real part of the case.
But because on remand they may well develop the associational
theory, I address the standing requirement that would
then apply. As I'll explain, a plaintiff presenting such a theory
would not need to show that her particular voting district
was packed or cracked for standing purposes because
that fact would bear no connection to her substantive claim.
Indeed, everything about the litigation of that claim—from
standing on down to remedy—would be statewide in nature.
Partisan gerrymandering, as this Court has recognized, is
“incompatible with democratic principles.” Arizona State
Legislature v. Arizona Independent Redistricting Comm'n,
576 U. S. 787, 791 (2015) (quoting Vieth v. Jubelirer, 541 U. S.
267, 292 (2004) (plurality opinion); alterations omitted).
More effectively every day, that practice enables politicians
to entrench themselves in power against the people's will.
And only the courts can do anything to remedy the problem,
because gerrymanders beneft those who control the political
branches. None of those facts gives judges any excuse to
Cite as: 585 U. S. 48 (2018) 75
Kagan, J., concurring
disregard Article III's demands. The Court is right to say
they were not met here. But partisan gerrymandering injures
enough individuals and organizations in enough concrete
ways to ensure that standing requirements, properly
applied, will not often or long prevent courts from reaching
the merits of cases like this one. Or from insisting, when
they do, that partisan offcials stop degrading the nation's
democracy.
I
As the Court explains, the plaintiffs' theory in this case
focuses on vote dilution. See ante, at 67 (“Here, the plaintiffs'
partisan gerrymandering claims turn on allegations
that their votes have been diluted”); see also ante, at 66,
67–69. That is, the plaintiffs assert that Wisconsin's
State Assembly Map has caused their votes “to carry less
weight than [they] would carry in another, hypothetical
district.” Ante, at 67. And the mechanism used to wreak
that harm is “packing” and “cracking.” Ante, at 66. In a
relatively few districts, the mapmakers packed supermajorities
of Democratic voters—well beyond the number
needed for a Democratic candidate to prevail. And in many
more districts, dispersed throughout the State, the mapmakers
cracked Democratic voters—spreading them suffciently
thin to prevent them from electing their preferred candidates.
The result of both practices is to “waste” Democrats'
votes. Ibid.
The harm of vote dilution, as this Court has long stated,
is “individual and personal in nature.” Reynolds v. Sims,
377 U. S. 533, 561 (1964); see ante, at 67. It arises when
an election practice—most commonly, the drawing of district
lines—devalues one citizen's vote as compared to others. Of
course, such practices invariably affect more than one citizen
at a time. For example, our original one-person, one-vote
cases considered how malapportioned maps “contract[ed] the
value” of urban citizens' votes while “expand[ing]” the value
of rural citizens' votes. Wesberry v. Sanders, 376 U. S. 1, 7
76 GILL v. WHITFORD
Kagan, J., concurring
(1964). But we understood the injury as giving diminished
weight to each particular vote, even if millions were so
touched. In such cases, a voter living in an overpopulated
district suffered “disadvantage to [herself] as [an] individual[
]”: Her vote counted for less than the votes of other citizens
in her State. Baker v. Carr, 369 U. S. 186, 206 (1962);
see ante, at 67. And that kind of disadvantage is what a
plaintiff asserting a vote dilution claim—in the one-person,
one-vote context or any other—always alleges.
To have standing to bring a partisan gerrymandering
claim based on vote dilution, then, a plaintiff must prove
that the value of her own vote has been “contract[ed].”
Wesberry, 376 U. S., at 7. And that entails showing, as the
Court holds, that she lives in a district that has been either
packed or cracked. See ante, at 69. For packing and cracking
are the ways in which a partisan gerrymander dilutes
votes. Cf. Voinovich v. Quilter, 507 U. S. 146, 153–154
(1993) (explaining that packing or cracking can also support
racial vote dilution claims). Consider the perfect form of
each variety. When a voter resides in a packed district, her
preferred candidate will win no matter what; when a voter
lives in a cracked district, her chosen candidate stands no
chance of prevailing. But either way, such a citizen's vote
carries less weight—has less consequence—than it would
under a neutrally drawn map. See ante, at 66, 67. So when
she shows that her district has been packed or cracked, she
proves, as she must to establish standing, that she is “among
the injured.” Lujan v. Defenders of Wildlife, 504 U. S. 555,
563 (1992) (quoting Sierra Club v. Morton, 405 U. S. 727, 735
(1972)); see ante, at 69.
In many partisan gerrymandering cases, that threshold
showing will not be hard to make. Among other ways of
proving packing or cracking, a plaintiff could produce an alternative
map (or set of alternative maps)—comparably consistent
with traditional districting principles—under which
her vote would carry more weight. Cf. ante, at 72 (suggestCite
as: 585 U. S. 48 (2018) 77
Kagan, J., concurring
ing how an alternative map may shed light on vote dilution
or its absence); Easley v. Cromartie, 532 U. S. 234, 258 (2001)
(discussing the use of alternative maps as evidence in a
racial gerrymandering case); Cooper v. Harris, 581 U. S.
285, 317–322 (2017) (same); Brief for Political Geography
Scholars as Amici Curiae 12–14 (describing computer simulation
techniques for devising alternative maps). For example,
a Democratic plaintiff living in a 75%-Democratic district
could prove she was packed by presenting a different map,
drawn without a focus on partisan advantage, that would
place her in a 60%-Democratic district. Or conversely, a
Democratic plaintiff residing in a 35%-Democratic district
could prove she was cracked by offering an alternative, neutrally
drawn map putting her in a 50–50 district. The precise
numbers are of no import. The point is that the plaintiff
can show, through drawing alternative district lines, that
partisan-based packing or cracking diluted her vote.
Here, the Court is right that the plaintiffs have so far
failed to make such a showing. See ante, at 69–72. William
Whitford was the only plaintiff to testify at trial about the
alleged gerrymander's effects. He expressly acknowledged
that his district would be materially identical under any conceivable
map, whether or not drawn to achieve partisan advantage.
See ante, at 69, 72. That means Wisconsin's plan
could not have diluted Whitford's own vote. So whatever
other claims he might have, see infra, at 80–81, Whitford is
not “among the injured” in a vote dilution challenge. Lujan,
504 U. S., at 563 (quoting Sierra Club, 405 U. S., at 735).
Four other plaintiffs differed from Whitford by alleging in
the complaint that they lived in packed or cracked districts.
But for whatever reason, they failed to back up those allegations
with evidence as the suit proceeded. See ante, at 69.
So they too did not show the injury—a less valuable vote—
central to their vote dilution theory.
That problem, however, may be readily fxable. The
Court properly remands this case to the District Court “so
78 GILL v. WHITFORD
Kagan, J., concurring
that the plaintiffs may have an opportunity” to “demonstrate
a burden on their individual votes.” Ante, at 73. That
means the plaintiffs—both the four who initially made those
assertions and any others (current or newly joined)—now can
introduce evidence that their individual districts were packed
or cracked. And if the plaintiffs' more general charges have
a basis in fact, that evidence may well be at hand. Recall
that the plaintiffs here alleged—and the District Court
found, see 218 F. Supp. 3d 837, 896 (WD Wis. 2016)—that a
unifed Republican government set out to ensure that Republicans
would control as many State Assembly seats as
possible over a decade (fve consecutive election cycles). To
that end, the government allegedly packed and cracked Democrats
throughout the State, not just in a particular district
(see, e. g., Benisek v. Lamone, post, p. 155 (per curiam)) or
region. Assuming that is true, the plaintiffs should have a
mass of packing and cracking proof, which they can now also
present in district-by-district form to support their standing.
In other words, a plaintiff residing in each affected district
can show, through an alternative map or other evidence, that
packing or cracking indeed occurred there. And if (or to the
extent) that test is met, the court can proceed to decide all
distinctive merits issues and award appropriate remedies.
When the court addresses those merits questions, it can
consider statewide (as well as local) evidence. Of course,
the court below and others like it are currently debating,
without guidance from this Court, what elements make up a
vote dilution claim in the partisan gerrymandering context.
But assume that the plaintiffs must prove illicit partisan
intent—a purpose to dilute Democrats' votes in drawing district
lines. The plaintiffs could then offer evidence about
the mapmakers' goals in formulating the entire statewide
map (which would predictably carry down to individual districting
decisions). So, for example, the plaintiffs here introduced
proof that the mapmakers looked to partisan voting
data when drawing districts throughout the State—and that
they graded draft maps according to the amount of advanCite
as: 585 U. S. 48 (2018) 79
Kagan, J., concurring
tage those maps conferred on Republicans. See 218 F. Supp.
3d, at 890–896. This Court has explicitly recognized the relevance
of such statewide evidence in addressing racial gerrymandering
claims of a district-specifc nature. “Voters,” we
held, “of course[ ] can present statewide evidence in order
to prove racial gerrymandering in a particular district.”
Alabama Legislative Black Caucus v. Alabama, 575 U. S.
254, 263 (2015). And in particular, “[s]uch evidence is perfectly
relevant” to showing that mapmakers had an invidious
“motive” in drawing the lines of “multiple districts in the
State.” Id., at 266–267. The same should be true for partisan
gerrymandering.
Similarly, cases like this one might warrant a statewide
remedy. Suppose that mapmakers pack or crack a critical
mass of State Assembly districts all across the State to elect
as many Republican politicians as possible. And suppose
plaintiffs residing in those districts prevail in a suit challenging
that gerrymander on a vote dilution theory. The plaintiffs
might then receive exactly the relief sought in this case.
To be sure, remedying each plaintiff's vote dilution injury
“requires revising only such districts as are necessary to reshape
[that plaintiff's] district—so that the [plaintiff] may be
unpacked or uncracked, as the case may be.” Ante, at 67.
But with enough plaintiffs joined together—attacking all the
packed and cracked districts in a statewide gerrymander—
those obligatory revisions could amount to a wholesale restructuring
of the State's districting plan. The Court recognizes
as much. It states that a proper remedy in a vote
dilution case “does not necessarily require restructuring all
of the State's legislative districts.” Ibid. (emphasis added).
Not necessarily—but possibly. It all depends on how much
redistricting is needed to cure all the packing and cracking
that the mapmakers have done.
II
Everything said so far relates only to suits alleging that a
partisan gerrymander dilutes individual votes. That is the
80 GILL v. WHITFORD
Kagan, J., concurring
way the Court sees this litigation. See ante, at 65–69. And
as I'll discuss, that is the most reasonable view. See infra,
at 82–83. But partisan gerrymanders infict other kinds of
constitutional harm as well. Among those injuries, partisan
gerrymanders may infringe the First Amendment rights of
association held by parties, other political organizations, and
their members. The plaintiffs here have sometimes pointed
to that kind of harm. To the extent they meant to do so,
and choose to do so on remand, their associational claim
would occasion a different standing inquiry than the one in
the Court's opinion.
Justice Kennedy explained the First Amendment associational
injury deriving from a partisan gerrymander in his
concurring opinion in Vieth, 541 U. S. 267. “Representative
democracy,” Justice Kennedy pointed out, is today “unimaginable
without the ability of citizens to band together”
to advance their political beliefs. Id., at 314 (opinion concurring
in judgment) (quoting California Democratic Party v.
Jones, 530 U. S. 567, 574 (2000)). That means signifcant
“First Amendment concerns arise” when a State purposely
“subject[s] a group of voters or their party to disfavored
treatment.” 541 U. S., at 314. Such action “burden[s] a
group of voters' representational rights.” Ibid.; see id., at
315 (similarly describing the “burden[ ] on a disfavored party
and its voters” and the “burden [on] a group's representational
rights”). And it does so because of their “political association,”
“participation in the electoral process,” “voting
history,” or “expression of political views.” Id., at 314–315.
As so formulated, the associational harm of a partisan gerrymander
is distinct from vote dilution. Consider an active
member of the Democratic Party in Wisconsin who resides
in a district that a partisan gerrymander has left untouched
(neither packed nor cracked). His individual vote carries no
less weight than it did before. But if the gerrymander ravaged
the party he works to support, then he indeed suffers
harm, as do all other involved members of that party. This
Cite as: 585 U. S. 48 (2018) 81
Kagan, J., concurring
is the kind of “burden” to “a group of voters' representational
rights” Justice Kennedy spoke of. Id., at 314.
Members of the “disfavored party” in the State, id., at 315,
deprived of their natural political strength by a partisan gerrymander,
may face diffculties fundraising, registering voters,
attracting volunteers, generating support from independents,
and recruiting candidates to run for offce (not to
mention eventually accomplishing their policy objectives).
See Anderson v. Celebrezze, 460 U. S. 780, 791–792, and n. 12
(1983) (concluding that similar harms inficted by a state election
law amounted to a “burden imposed on . . . associational
rights”). And what is true for party members may be doubly
true for party offcials and triply true for the party itself
(or for related organizations). Cf. California Democratic
Party, 530 U. S., at 586 (holding that a state law violated
state political parties' First Amendment rights of association).
By placing a state party at an enduring electoral disadvantage,
the gerrymander weakens its capacity to perform
all its functions.
And if that is the essence of the harm alleged, then the
standing analysis should differ from the one the Court applies.
Standing, we have long held, “turns on the nature
and source of the claim asserted.” Warth v. Seldin, 422
U. S. 490, 500 (1975). Indeed, that idea lies at the root of
today's opinion. It is because the Court views the harm alleged
as vote dilution that it (rightly) insists that each plaintiff
show packing or cracking in her own district to establish
her standing. See ante, at 65–69; supra, at 76. But when
the harm alleged is not district specifc, the proof needed
for standing should not be district specifc either. And the
associational injury fowing from a statewide partisan gerrymander,
whether alleged by a party member or the party
itself, has nothing to do with the packing or cracking of any
single district's lines. The complaint in such a case is instead
that the gerrymander has burdened the ability of likeminded
people across the State to affliate in a political party
82 GILL v. WHITFORD
Kagan, J., concurring
and carry out that organization's activities and objects. See
supra, at 80–81. Because a plaintiff can have that complaint
without living in a packed or cracked district, she need not
show what the Court demands today for a vote dilution
claim. Or said otherwise: Because on this alternative theory,
the valued association and the injury to it are statewide,
so too is the relevant standing requirement.
On occasion, the plaintiffs here have indicated that they
have an associational claim in mind. In addition to repeatedly
alleging vote dilution, their complaint asserted in general
terms that Wisconsin's districting plan infringes their
“First Amendment right to freely associate with each other
without discrimination by the State based on that association.”
1 App. 61, Complaint ¶91. Similarly, the plaintiffs
noted before this Court that “[b]eyond diluting votes, partisan
gerrymandering offends First Amendment values by
penalizing citizens because of . . . their association with a
political party.” Brief for Appellees 36 (internal quotation
marks omitted). And fnally, the plaintiffs' evidence of partisan
asymmetry well fts a suit alleging associational injury
(although, as noted below, that was not how it was used, see
infra this page and 83). As the Court points out, what
those statistical metrics best measure is a gerrymander's effect
“on the fortunes of political parties” and those associated
with them. Ante, at 72.
In the end, though, I think the plaintiffs did not suffciently
advance a First Amendment associational theory to avoid
the Court's holding on standing. Despite referring to that
theory in their complaint, the plaintiffs tried this case as
though it were about vote dilution alone. Their testimony
and other evidence went toward establishing the effects of
rampant packing and cracking on the value of individual citizens'
votes. Even their proof of partisan asymmetry was
used for that purpose—although as noted above, it could easily
have supported the alternative theory of associational
Cite as: 585 U. S. 48 (2018) 83
Kagan, J., concurring
harm, see supra, at 82. The plaintiffs joining in this suit
do not include the State Democratic Party (or any related
statewide organization). They did not emphasize their
membership in that party, or their activities supporting
it. And they did not speak to any tangible associational
burdens—ways the gerrymander had debilitated their party
or weakened its ability to carry out its core functions and
purposes, see supra, at 80–81. Even in this Court, when
disputing the State's argument that they lacked standing,
the plaintiffs reiterated their suit's core theory: that the gerrymander
“intentionally, severely, durably, and unjustifably
dilutes Democratic votes. ” Brief for Appellees 29–30.
Given that theory, the plaintiffs needed to show that their
own votes were indeed diluted in order to establish standing.
But nothing in the Court's opinion prevents the plaintiffs
on remand from pursuing an associational claim, or from satisfying
the different standing requirement that theory would
entail. The Court's opinion is about a suit challenging a partisan
gerrymander on a particular ground—that it dilutes the
votes of individual citizens. That opinion “leave[s] for another
day consideration of other possible theories of harm
not presented here and whether those theories might present
justiciable claims giving rise to statewide remedies.”
Ante, at 68. And in particular, it leaves for another day the
theory of harm advanced by Justice Kennedy in Vieth:
that a partisan gerrymander interferes with the vital “ability
of citizens to band together” to further their political beliefs.
541 U. S., at 314 (quoting California Democratic Party, 530
U. S., at 574). Nothing about that injury is “generalized” or
“abstract,” as the Court says is true of the plaintiffs' dissatisfaction
with the “overall composition of the legislature.”
Ante, at 68. A suit raising an associational theory complains
of concrete “burdens on a disfavored party” and its members
as they pursue their political interests and goals. Vieth, 541
U. S., at 315 (opinion of Kennedy, J.); see supra, at 80–81.
84 GILL v. WHITFORD
Kagan, J., concurring
And when the suit alleges that a gerrymander has imposed
those burdens on a statewide basis, then its litigation should
be statewide too—as to standing, liability, and remedy alike.
III
Partisan gerrymandering jeopardizes “[t]he ordered working
of our Republic, and of the democratic process.” Vieth,
541 U. S., at 316 (opinion of Kennedy, J.). It enables a party
that happens to be in power at the right time to entrench
itself there for a decade or more, no matter what the voters
would prefer. At its most extreme, the practice amounts to
“rigging elections.” Id., at 317 (internal quotation marks
omitted). It thus violates the most fundamental of all democratic
principles—that “the voters should choose their
representatives, not the other way around.” Arizona State
Legislature, 576 U. S., at 824 (quoting Berman, Managing
Gerrymandering, 83 Texas L. Rev. 781 (2005)).
And the evils of gerrymandering seep into the legislative
process itself. Among the amicus briefs in this case are two
from bipartisan groups of congressional members and state
legislators. They know that both parties gerrymander.
And they know the consequences. The congressional brief
describes a “cascade of negative results” from excessive partisan
gerrymandering: indifference to swing voters and their
views; extreme political positioning designed to placate the
party's base and fend off primary challenges; the devaluing
of negotiation and compromise; and the impossibility of
reaching pragmatic, bipartisan solutions to the nation's problems.
Brief for Bipartisan Group of Current and Former
Members of Congress as Amici Curiae 4; see id., at 10–23.
The state legislators tell a similar story. In their view, partisan
gerrymandering has “sounded the death-knell of bipartisanship,”
creating a legislative environment that is “toxic”
and “tribal[ ].” Brief for Bipartisan Group of 65 Current
and Former State Legislators as Amici Curiae 6, 25.
Cite as: 585 U. S. 48 (2018) 85
Kagan, J., concurring
I doubt James Madison would have been surprised.
What, he asked when championing the Constitution, would
make the House of Representatives work? The House must
be structured, he answered, to instill in its members “an habitual
recollection of their dependence on the people.” The
Federalist No. 57, p. 352 (C. Rossiter ed. 1961). Legislators
must be “compelled to anticipate the moment” when their
“exercise of [power] is to be reviewed.” Ibid. When that
moment does not come—when legislators can entrench themselves
in offce despite the people's will—the foundation of
effective democratic governance dissolves.
And our history offers little comfort. Yes, partisan gerrymandering
goes back to the Republic's earliest days; and yes,
American democracy has survived. But technology makes
today's gerrymandering altogether different from the crude
linedrawing of the past. New redistricting software enables
pinpoint precision in designing districts. With such
tools, mapmakers can capture every last bit of partisan advantage,
while still meeting traditional districting requirements
(compactness, contiguity, and the like). See Brief for
Political Science Professors as Amici Curiae 28. Gerrymanders
have thus become ever more extreme and durable,
insulating offceholders against all but the most titanic shifts
in the political tides. The 2010 redistricting cycle produced
some of the worst partisan gerrymanders on record. Id.,
at 3. The technology will only get better, so the 2020 cycle
will only get worse.
Courts have a critical role to play in curbing partisan gerrymandering.
Over ffty years ago, we committed to providing
judicial review in the redistricting arena, because we
understood that “a denial of constitutionally protected rights
demands judicial protection.” Reynolds, 377 U. S., at 566.
Indeed, the need for judicial review is at its most urgent in
these cases. For here, politicians' incentives confict with
voters' interests, leaving citizens without any political rem86
GILL v. WHITFORD
Opinion of Thomas, J.
edy for their constitutional harms. Of course, their dire
need provides no warrant for courts to disregard Article III.
Because of the way this suit was litigated, I agree that the
plaintiffs have so far failed to establish their standing to sue,
and I fully concur in the Court's opinion. But of one thing
we may unfortunately be sure. Courts—and in particular
this Court—will again be called on to redress extreme partisan
gerrymanders. I am hopeful we will then step up to our
responsibility to vindicate the Constitution against a contrary
law.
Justice Thomas, with whom Justice Gorsuch joins,
concurring in part and concurring in the judgment.
I join Parts I and II of the Court's opinion because I agree
that the plaintiffs have failed to prove Article III standing.
I do not join Part III, which gives the plaintiffs another
chance to prove their standing on remand. When a plaintiff
lacks standing, our ordinary practice is to remand the case
with instructions to dismiss for lack of jurisdiction. E. g.,
Lance v. Coffman, 549 U. S. 437, 442 (2007) (per curiam);
DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 354 (2006);
United States v. Hays, 515 U. S. 737, 747 (1995). The Court
departs from our usual practice because this is supposedly
“not the usual case.” Ante, at 73. But there is nothing unusual
about it. As the Court explains, the plaintiffs' lack of
standing follows from long-established principles of law.
See ante, at 65–69. After a year and a half of litigation in
the District Court, including a 4-day trial, the plaintiffs had a
more-than-ample opportunity to prove their standing under
these principles. They failed to do so. Accordingly, I
would have remanded this case with instructions to dismiss.
OCTOBER TERM, 2017 87
Syllabus
LOZMAN v. CITY OF RIVIERA BEACH, FLORIDA
certiorari to the united states court of appeals for
the eleventh circuit
No. 17–21. Argued February 27, 2018—Decided June 18, 2018
After petitioner Lozman towed his foating home into a slip in a marina
owned by the city of Riviera Beach, he became an outspoken critic of
the City's plan to use its eminent domain power to seize waterfront
homes for private development and often made critical comments about
offcials during the public-comment period of city council meetings. He
also fled a lawsuit alleging that the City Council's approval of an agreement
with developers violated Florida's open-meetings laws. In June
2006 the Council held a closed-door session, in part to discuss Lozman's
lawsuit. He alleges that the meeting's transcript shows that councilmembers
devised an offcial plan to intimidate him, and that many of his
subsequent disputes with city offcials and employees were part of the
City's retaliation plan. Five months after the closed-door meeting, the
Council held a public meeting. During the public-comment session,
Lozman began to speak about the arrests of offcials from other jurisdictions.
When he refused a councilmember's request to stop making his
remarks, the councilmember told the police offcer in attendance to
“carry him out.” The offcer handcuffed Lozman and ushered him out
of the meeting. The City contends that he was arrested for violating
the City Council's rules of procedure by discussing issues unrelated to
the City and then refusing to leave the podium. Lozman claims that
his arrest was to retaliate for his lawsuit and his prior public criticisms
of city offcials. The State's attorney determined that there was probable
cause for his arrest, but decided to dismiss the charges.
Lozman then fled suit under 42 U. S. C. § 1983, alleging a number of
incidents that, under his theory, showed the City's purpose was to harass
him, including by initiating an admiralty lawsuit against his foating
home, see Lozman v. Riviera Beach, 568 U. S. 115. The jury returned
a verdict for the City on all of the claims. The District Court instructed
the jury that, for Lozman to prevail on his claim of a retaliatory
arrest at the city council meeting, he had to prove that the arresting
officer was motivated by impermissible animus against Lozman's
protected speech and that the offcer lacked probable cause to make the
arrest. The Eleventh Circuit affrmed, concluding that any error the
District Court made when it instructed the jury to consider the offcer's
retaliatory animus was harmless because the jury necessarily determined
that the arrest was supported by probable cause when it found
88 LOZMAN v. RIVIERA BEACH
Syllabus
for the City on Lozman's other claims. The existence of probable
cause, the court ruled, defeated a First Amendment claim for retaliatory
arrest.
Held: The existence of probable cause does not bar Lozman's First Amendment
retaliation claim under the circumstances of this case. Pp. 94–102.
(a) The issue here is narrow. Lozman concedes that there was probable
cause for his arrest. Nonetheless, he claims, the arrest violated the
First Amendment because it was ordered in retaliation for his earlier,
protected speech: his open-meetings lawsuit and his prior public criticisms
of city offcials. Pp. 94–95.
(b) In a § 1983 case, a city or other local governmental entity cannot
be subject to liability unless the harm was caused in the implementation
of “offcial municipal policy.” Monell v. New York City Dept. of Social
Servs., 436 U. S. 658, 691. The Court assumes that Lozman's arrest was
taken pursuant to an offcial city policy.
Two major precedents bear on the issue whether the conceded existence
of probable cause for the arrest bars recovery regardless of any
intent or purpose to retaliate for past speech. Lozman argues that the
controlling rule is found in Mt. Healthy City Bd. of Ed. v. Doyle, 429
U. S. 274, a civil case in which a city board of education decided not to
rehire an untenured teacher after a series of incidents, including a telephone
call to a local radio station. The phone call was protected speech,
but, the Court held, there was no liability unless the alleged constitutional
violation was a but-for cause of the employment termination.
Id., at 285–287. The City counters that the applicable precedent is
Hartman v. Moore, 547 U. S. 250, where the Court held that a plaintiff
alleging a retaliatory prosecution must show the absence of probable
cause for the underlying criminal charge, id., at 265–266. If there was
probable cause, the case ends. If the plaintiff proves the absence of
probable cause, then the Mt. Healthy test governs. Pp. 95–99.
(c) Whether Hartman or Mt. Healthy governs here is a determination
that must await a different case. For Lozman's claim is far afeld
from the typical retaliatory arrest claim, and the diffculties that might
arise if Mt. Healthy is applied to the mine run of arrests made by police
offcers are not present here. Lozman alleges that the City itself retaliated
against him pursuant to an “offcial municipal policy” of intimidation.
Monell, supra, at 691. The fact that he must prove the existence
and enforcement of an offcial policy motivated by retaliation separates
his claim from the typical retaliatory arrest claim. An offcial retaliatory
policy can be long term and pervasive, unlike an ad hoc, onthe-
spot decision by an individual offcer. And it can be diffcult to dislodge.
A citizen can seek to have an individual offcer disciplined or
removed from service, but there may be little practical recourse when
Cite as: 585 U. S. 87 (2018) 89
Syllabus
the government itself orchestrates the retaliation. Lozman's allegations,
if proved, also alleviate the problems that the City says will result
from applying Mt. Healthy in retaliatory arrest cases, for it is unlikely
that the connection between the alleged animus and injury in a case like
this will be “weakened . . . by [an offcial's] legitimate consideration of
speech,” Reichle v. Howards, 566 U. S. 658, 668, and there is little risk
of a food of retaliatory arrest suits against high-level policymakers.
Because Lozman alleges that the City deprived him of the right to petition,
“ `one of the most precious of the liberties safeguarded by the Bill
of Rights,' ” BE&K Constr. Co. v. NLRB, 536 U. S. 516, 524, his speech
is high in the hierarchy of First Amendment values. On these facts,
Mt. Healthy provides the correct standard for assessing a retaliatory
arrest claim. On remand, the Eleventh Circuit may consider any arguments
in support of the District Court's judgment that have been preserved
by the City, including whether a reasonable juror could fnd that
the City formed a retaliatory policy to intimidate Lozman during its
closed-door session, whether a reasonable juror could fnd that the arrest
constituted an offcial act by the City, and whether, under Mt.
Healthy, the City has proved that it would have arrested Lozman regardless
of any retaliatory animus. Pp. 99–102.
681 Fed. Appx. 746, vacated and remanded.
Kennedy, J., delivered the opinion of the Court, in which Roberts,
C. J., and Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Gorsuch,
JJ., joined. Thomas, J., fled a dissenting opinion, post, 102.
Pamela S. Karlan argued the cause for petitioner. With
her on the briefs were Jeffrey L. Fisher, David T. Goldberg,
and Kerri L. Barsh.
Shay Dvoretzky argued the cause for respondent. With
him on the brief were Jeffrey R. Johnson, Benjamin M.
Flowers, Benjamin L. Bedard, Stephanie W. Kaufer, and
Andrew DeGraffenreidt III.
Acting Solicitor General Wall argued the cause for the
United States as amicus curiae urging affrmance. With
him on the brief were Deputy Assistant Attorney General
Davis, Robert A. Parker, and Barbara L. Herwig.*
*Briefs of amici curiae urging reversal were fled for the First Amendment
Foundation et al. by Cathleen H. Hartge, Nancy G. Abudu, Lee Rowland,
Ginger D. Anders, and David D. Cole; for the Institute for Free
90 LOZMAN v. RIVIERA BEACH
Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
This case requires the Court to address the intersection of
principles that defne when arrests are lawful and principles
that prohibit the government from retaliating against a person
for having exercised the right to free speech. An arrest
deprives a person of essential liberties, but if there is probable
cause to believe the person has committed a criminal offense
there is often no recourse for the deprivation. See,
e. g., Devenpeck v. Alford, 543 U. S. 146, 153 (2004). At the
same time, the First Amendment prohibits government offcials
from retaliating against individuals for engaging in protected
speech. Crawford-El v. Britton, 523 U. S. 574, 592
(1998).
The petitioner in this case alleges that high-level city
policymakers adopted a plan to retaliate against him for protected
speech and then ordered his arrest when he at-
Speech by Floyd Abrams and Allen Dickerson; for the Institute for Justice
et al. by Michael B. Kimberly, Matthew A. Waring, Paul M. Sherman,
and Ilya Shapiro; for the Marion B. Brechner First Amendment Project
et al. by Clay Calvert; for the National Press Photographers Association
et al. by Robert Corn-Revere, Ronald G. London, Mickey H. Osterreicher,
Bruce D. Brown, Gregg P. Leslie, Kevin M. Goldberg, Cheryl L. Davis,
Andrew Crocker, Theresa Chmara, Michael A. Bamberger, and Richard
M. Zuckerman; and for the Roderick and Solange MacArthur Justice Center
by David M. Shapiro.
Briefs of amici curiae urging affrmance were fled for the State of
Alaska by Jahna Lindemuth, Attorney General of Alaska, and Dario Borghesan
and Anna R. Jay, Assistant Attorneys General; for the District of
Columbia et al. by Karl A. Racine, Attorney General of the District of
Columbia, Loren L. Alikhan, Acting Solicitor General, Stacy L. Anderson,
Acting Deputy Solicitor General, and Carl J. Schifferle, Senior Assistant
Attorney General, and by the Attorneys General for their respective jurisdictions
as follows: Lawrence G. Wasden of Idaho, Curtis T. Hill, Jr., of
Indiana, Jeff Landry of Louisiana, Jim Hood of Mississippi, Mike Hunter
of Oklahoma, Josh Shapiro of Pennsylvania, Peter F. Kilmartin of Rhode
Island, Sean D. Reyes of Utah, and Peter K. Michael of Wyoming; and for
the National Association of Counties et al. by Sean R. Gallagher, Bennett
L. Cohen, and Lisa E. Soronen.
Cite as: 585 U. S. 87 (2018) 91
Opinion of the Court
tempted to make remarks during the public-comment portion
of a city council meeting. The petitioner now concedes
there was probable cause for the arrest. The question is
whether the presence of probable cause bars the petitioner's
retaliatory arrest claim under these circumstances.
I
The city of Riviera Beach (City) is on the Atlantic coast of
Florida, about 75 miles north of Miami. The petitioner here
is Fane Lozman. In 2006 Lozman towed his foating home
into a slip in the City-owned marina, where he became a
resident. Thus began his contentious relationship with the
City's elected offcials.
Soon after his arrival Lozman became an outspoken critic
of the City's plan to use its eminent domain power to seize
homes along the waterfront for private development. Lozman
often spoke during the public-comment period at city
council meetings and criticized councilmembers, the mayor,
and other public employees. He also fled a lawsuit alleging
that the Council's approval of an agreement with developers
violated Florida's open-meetings laws.
In June 2006 the Council held a closed-door session, in part
to discuss the open-meetings lawsuit that Lozman recently
had fled. According to the transcript of the meeting, Councilmember
Elizabeth Wade suggested that the City use its
resources to “intimidate” Lozman and others who had fled
lawsuits against the City. App. 176. Later in the meeting
a different councilmember asked whether there was “a consensus
of what Ms. Wade is saying,” and others responded in
the affrmative. Id., at 181–182. Lozman alleges that these
remarks formed an offcial plan to intimidate him. The City,
on the other hand, maintains that the only consensus reached
during the meeting was to invest the money and resources
necessary to prevail in the litigation against it.
In all events, Lozman became embroiled in a number of
disputes with city offcials and employees over the ensuing
92 LOZMAN v. RIVIERA BEACH
Opinion of the Court
years, many of which Lozman says were part of the City's
plan of retaliation. The dispute that led to this litigation
took place in 2006. In November of that year, fve months
after the closed-door meeting where the “intimidate” comment
was made, the City Council held a public meeting.
The agenda included a public-comment session in which citizens
could address the Council for a few minutes. As he
had done on earlier occasions and would do more than 200
times over the coming years, see Tr. in No. 9:08–cv–80134
(SD Fla.), Doc. 785, p. 61, Lozman stepped up to the podium
to give remarks. He began to discuss the recent arrest of
a former county offcial. Councilmember Wade interrupted
Lozman, directing him to stop making those remarks. Lozman
continued speaking, this time about the arrest of a
former offcial from the city of West Palm Beach. Wade
then called for the assistance of the police offcer in attendance.
The offcer approached Lozman and asked him to
leave the podium. Lozman refused. So Wade told the offcer
to “carry him out.” The offcer handcuffed Lozman
and ushered him out of the meeting. The incident was recorded
on video. See Record, Def. Exh. 505, Doc. 687, available
at https://www.supremecourt.gov/media/video/mp4fles/
Lozman_v_RivieraBeach.mp4. According to the City, Lozman
was arrested because he violated the City Council's
rules of procedure by discussing issues unrelated to the City
and then refused to leave the podium. According to Lozman,
the arrest was to retaliate for his open-meetings lawsuit
against the City and his prior public criticisms of city
offcials.
Under arrest, Lozman was escorted to police headquarters.
He was charged with disorderly conduct and resisting
arrest without violence and then released. Later, the
State's attorney determined there was probable cause to arrest
Lozman for those offenses but decided to dismiss the
charges.
Cite as: 585 U. S. 87 (2018) 93
Opinion of the Court
Lozman fled this lawsuit under Rev. Stat. § 1979, 42
U. S. C. § 1983. The complaint described a number of alleged
incidents that, under Lozman's theory, showed the
City's purpose to harass him in different ways. These
ranged from a city employee telling Lozman that his dog
needed a muzzle to the City's initiation of an admiralty lawsuit
against Lozman's foating home—the latter resulting in
an earlier decision by this Court. See Lozman v. Riviera
Beach, 568 U. S. 115 (2013). The evidence and arguments
presented by both parties with respect to all the matters
alleged in Lozman's suit consumed 19 days of trial before
a jury. The jury returned a verdict for the City on all of
the claims.
Before this Court, Lozman seeks a reversal only as to the
City's alleged retaliatory arrest at the November 2006 city
council meeting. The District Court instructed the jury
that, for Lozman to prevail on this claim, he had to prove that
the arresting offcer was himself motivated by impermissible
animus against Lozman's protected speech and that the offcer
lacked probable cause to make the arrest. The District
Court determined that the evidence was insuffcient as a
matter of law to support probable cause for the offenses
charged at the time of the arrest (disorderly conduct and
resisting arrest without violence). But the District Court
concluded that there may have been probable cause to arrest
Lozman for violating a Florida statute that prohibits
interruptions or disturbances in schools, churches, or other
public assemblies. Fla. Stat. § 871.01 (2017). (The City had
brought this statute to the District Court's attention during
the course of the litigation.) The District Court allowed the
jury to decide whether there was probable cause to arrest
for the public-disturbance offense.
Judgment having been entered for the City after the jury's
verdict, Lozman appealed. The Court of Appeals for the
Eleventh Circuit affrmed. 681 Fed. Appx. 746 (2017). As
94 LOZMAN v. RIVIERA BEACH
Opinion of the Court
relevant here, the Court of Appeals assumed that the District
Court erred when it instructed the jury that the offcer,
rather than the City, must have harbored the retaliatory animus.
But the Court of Appeals held that any error was
harmless because the jury necessarily determined that the
arrest was supported by probable cause when it found for
the City on some of Lozman's other claims—specifcally, his
claims that the arrest violated the Fourth Amendment and
state law. Id., at 751–752. And, under precedents which
the Court of Appeals deemed controlling, the existence of
probable cause defeated a First Amendment claim for retaliatory
arrest. See id., at 752 (citing Dahl v. Holley, 312 F. 3d
1228, 1236 (CA11 2002)).
This Court granted certiorari, 583 U. S. 972 (2017), on the
issue whether the existence of probable cause defeats a First
Amendment claim for retaliatory arrest under § 1983. The
Court considered this issue once before, see Reichle v. Howards,
566 U. S. 658, 663 (2012), but resolved the case on different
grounds.
II
The issue before the Court is a narrow one. In this Court
Lozman does not challenge the constitutionality of Florida's
statute criminalizing disturbances at public assemblies. He
does not argue that the statute is overly broad, e. g., Terminiello
v. Chicago, 337 U. S. 1 (1949); Watchtower Bible &
Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150
(2002); or that it impermissibly targets speech based on its
content or viewpoint, e. g., Texas v. Johnson, 491 U. S. 397
(1989); Cohen v. California, 403 U. S. 15 (1971); or that it was
enforced in a way that curtailed Lozman's right to peaceful
assembly, e. g., Brown v. Louisiana, 383 U. S. 131 (1966).
Lozman, furthermore, does not challenge the validity of the
City Council's asserted limitations on the subjects speakers
may discuss during the public-comment portion of city council
meetings (although he continues to dispute whether those
limitations in fact existed).
Cite as: 585 U. S. 87 (2018) 95
Opinion of the Court
Instead Lozman challenges only the lawfulness of his arrest,
and even that challenge is a limited one. There is no
contention that the City ordered Lozman's arrest to discriminate
against him based on protected classifcations, or that
the City denied Lozman his equal protection rights by placing
him in a “class of one.” See Village of Willowbrook v.
Olech, 528 U. S. 562 (2000) (per curiam). Lozman, moreover,
now concedes that there was probable cause for the
arrest. Although Lozman does not indicate what facts he
believes support this concession, it appears that the existence
of probable cause must be based on the assumption that
Lozman failed to depart the podium after receiving a lawful
order to leave.
Lozman's claim is that, notwithstanding the presence of
probable cause, his arrest at the city council meeting violated
the First Amendment because the arrest was ordered in retaliation
for his earlier, protected speech: his open-meetings
lawsuit and his prior public criticisms of city offcials. The
question this Court is asked to consider is whether the existence
of probable cause bars that First Amendment retaliation
claim.
III
It is well established that in a § 1983 case a city or other
local governmental entity cannot be subject to liability at all
unless the harm was caused in the implementation of “offcial
municipal policy.” Monell v. New York City Dept. of Social
Servs., 436 U. S. 658, 691 (1978); see Los Angeles County v.
Humphries, 562 U. S. 29, 36 (2010). Lozman's § 1983 damages
claim is against only the City itself, based on the acts
of its offcers and employees—here, the members of the City
Council. Lozman says that the City, through its city councilmembers,
formed an offcial policy to retaliate against him
and ordered his arrest. The Court assumes in the discussion
to follow that the arrest was taken pursuant to an offcial
city policy, but whether there was such a policy and what
its content may have been are issues not decided here.
96 LOZMAN v. RIVIERA BEACH
Opinion of the Court
This brings the discussion to the issue the parties deem
central to the case: whether the conceded existence of probable
cause for the arrest bars recovery regardless of any intent
or purpose to retaliate for past speech. Two major
precedents could bear on this point, and the parties disagree
on which should be applicable here. The frst is this Court's
decision in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S.
274 (1977). See also Board of Comm'rs, Wabaunsee Cty. v.
Umbehr, 518 U. S. 668 (1996). Lozman urges that the rule
of Mt. Healthy should control and that under it he is entitled
to recover. The second is this Court's decision in Hartman
v. Moore, 547 U. S. 250 (2006), which the City cites for the
proposition that once there is probable cause there can be no
further claim that the arrest was retaliation for protected
speech.
Mt. Healthy arose in a civil, not criminal, context. A city
board of education decided not to rehire an untenured school
teacher after a series of incidents indicating unprofessional
demeanor. 429 U. S., at 281–283. One of the incidents was
a telephone call the teacher made to a local radio station to
report on a new school policy. Id., at 282. Because the
board of education did not suggest that the teacher violated
any established policy in making the call, this Court accepted
a fnding by the District Court that the call was protected
speech. Id., at 284. The Court went on to hold, however,
that since the other incidents, standing alone, would have
justifed the dismissal, relief could not be granted if the
board could show that the discharge would have been ordered
even without reference to the protected speech. Id.,
at 285–287. In terms of precepts in the law of torts, the
Court held that even if retaliation might have been a substantial
motive for the board's action, still there was no liability
unless the alleged constitutional violation was a butfor
cause of the employment termination. Ibid.; see also
Umbehr, supra, at 675.
Cite as: 585 U. S. 87 (2018) 97
Opinion of the Court
The City resists the applicability of the Mt. Healthy test
as the sole determinant here. It contends that, where there
was probable cause for the arrest, the applicable precedent
is Hartman—a case that was in the criminal sphere and that
turned on the existence of probable cause.
The background in Hartman was that a company and its
chief executive, William Moore, had engaged in an extensive
lobbying and governmental relations campaign opposing a
particular postal service policy. 547 U. S., at 252–253.
Moore and the company were later prosecuted for violating
federal statutes in the course of that lobbying. Id., at 253–
254. After being acquitted, Moore fled suit against fve
postal inspectors, alleging that they had violated his First
Amendment rights when they instigated his prosecution in
retaliation for his criticisms of the Postal Service. Id., at
254. This Court held that a plaintiff alleging a retaliatory
prosecution must show the absence of probable cause for the
underlying criminal charge. Id., at 265–266. If there was
probable cause, the case ends. If the plaintiff proves the
absence of probable cause, then the Mt. Healthy test governs:
The plaintiff must show that the retaliation was a substantial
or motivating factor behind the prosecution, and, if
that showing is made, the defendant can prevail only by
showing that the prosecution would have been initiated without
respect to retaliation. See 547 U. S., at 265–266.
The Court in Hartman deemed it necessary to inquire as
to the existence of probable cause because proving the link
between the defendant's retaliatory animus and the plaintiff's
injury in retaliatory prosecution cases “is usually more
complex than it is in other retaliation cases.” Id., at 261.
An action for retaliatory prosecution “will not be brought
against the prosecutor, who is absolutely immune from liability
for the decision to prosecute.” Id., at 261–262. Instead,
the plaintiff must sue some other government offcial and
prove that the offcial “induced the prosecutor to bring
98 LOZMAN v. RIVIERA BEACH
Opinion of the Court
charges that would not have been initiated without his urging.”
Id., at 262. Noting that inquiries with respect to
probable cause are commonplace in criminal cases, the Court
determined that requiring plaintiffs in retaliatory prosecution
cases to prove the lack of probable cause would help
“bridge the gap between the nonprosecuting government
agent's motive and the prosecutor's action.” Id., at 263.
The City's argument here is that, just as probable cause is
a bar in retaliatory prosecution cases, so too should it be
a bar in this case, involving a retaliatory arrest. There is
undoubted force in the City's position. Reichle, 566 U. S., at
667–668. There are on average about 29,000 arrests per day
in this country. Dept. of Justice–FBI, Uniform Crime Report,
Crime in the United States, 2016 (Fall 2017). In deciding
whether to arrest, police offcers often make split-second
judgments. The content of the suspect's speech might be a
consideration in circumstances where the offcer must decide
whether the suspect is ready to cooperate or, on the other
hand, whether he may present a continuing threat to interests
that the law must protect. See, e. g., District of Columbia
v. Wesby, 583 U. S. 48, 60 (2018) (“suspect's untruthful
and evasive answers to police questioning could support
probable cause” (internal quotation marks omitted)).
For these reasons retaliatory arrest claims, much like retaliatory
prosecution claims, can “present a tenuous causal
connection between the defendant's alleged animus and the
plaintiff's injury.” Reichle, 566 U. S., at 668. That means
it can be diffcult to discern whether an arrest was caused
by the offcer's legitimate or illegitimate consideration of
speech. Ibid. And the complexity of proving (or disproving)
causation in these cases creates a risk that the courts
will be fooded with dubious retaliatory arrest suits. See
Brief for District of Columbia et al. as Amici Curiae 5–11.
At the same time, there are substantial arguments that
Hartman's framework is inapt in retaliatory arrest cases,
and that Mt. Healthy should apply without a threshold inCite
as: 585 U. S. 87 (2018) 99
Opinion of the Court
quiry into probable cause. For one thing, the causation
problem in retaliatory arrest cases is not the same as the
problem identifed in Hartman. Hartman relied in part on
the fact that, in retaliatory prosecution cases, the causal connection
between the defendant's animus and the prosecutor's
decision to prosecute is weakened by the “presumption of
regularity accorded to prosecutorial decisionmaking.” 547
U. S., at 263. That presumption does not apply in this context.
See Reichle, supra, at 669. In addition, there is a
risk that some police offcers may exploit the arrest power
as a means of suppressing speech. See Brief for Institute
for Free Speech as Amicus Curiae.
IV
The parties' arguments raise diffcult questions about the
scope of First Amendment protections when speech is made
in connection with, or contemporaneously to, criminal activity.
But whether in a retaliatory arrest case the Hartman
approach should apply, thus barring a suit where probable
cause exists, or, on the other hand, the inquiry should be
governed only by Mt. Healthy is a determination that must
await a different case. For Lozman's claim is far afeld from
the typical retaliatory arrest claim, and the diffculties
that might arise if Mt. Healthy is applied to the mine run of
arrests made by police offcers are not present here.
Here Lozman does not sue the offcer who made the arrest.
Indeed, Lozman likely could not have maintained a retaliation
claim against the arresting offcer in these circumstances,
because the offcer appears to have acted in good
faith, and there is no showing that the offcer had any knowledge
of Lozman's prior speech or any motive to arrest him
for his earlier expressive activities.
Instead Lozman alleges more governmental action than
simply an arrest. His claim is that the City itself retaliated
against him pursuant to an “offcial municipal policy” of
intimidation. Monell, 436 U. S., at 691. In particular, he
100 LOZMAN v. RIVIERA BEACH
Opinion of the Court
alleges that the City, through its legislators, formed a premeditated
plan to intimidate him in retaliation for his criticisms
of city offcials and his open-meetings lawsuit. And
he asserts that the City itself, through the same high offcers,
executed that plan by ordering his arrest at the November
2006 city council meeting.
The fact that Lozman must prove the existence and enforcement
of an offcial policy motivated by retaliation separates
Lozman's claim from the typical retaliatory arrest
claim. An offcial retaliatory policy is a particularly troubling
and potent form of retaliation, for a policy can be long
term and pervasive, unlike an ad hoc, on-the-spot decision by
an individual offcer. An offcial policy also can be diffcult
to dislodge. A citizen who suffers retaliation by an individual
offcer can seek to have the offcer disciplined or removed
from service, but there may be little practical recourse when
the government itself orchestrates the retaliation. For
these reasons, when retaliation against protected speech is
elevated to the level of offcial policy, there is a compelling
need for adequate avenues of redress.
In addition, Lozman's allegations, if proved, alleviate the
problems that the City says will result from applying Mt.
Healthy in retaliatory arrest cases. The causation problem
in arrest cases is not of the same diffculty where, as is alleged
here, the offcial policy is retaliation for prior, protected
speech bearing little relation to the criminal offense
for which the arrest is made. In determining whether there
was probable cause to arrest Lozman for disrupting a public
assembly, it is diffcult to see why a city offcial could have
legitimately considered that Lozman had, months earlier,
criticized city offcials or fled a lawsuit against the City. So
in a case like this one it is unlikely that the connection
between the alleged animus and injury will be “weakened
. . . by [an offcial's] legitimate consideration of speech.”
Reichle, 566 U. S., at 668. This unique class of retaliatory
arrest claims, moreover, will require objective evidence of a
policy motivated by retaliation to survive summary judgCite
as: 585 U. S. 87 (2018) 101
Opinion of the Court
ment. Lozman, for instance, cites a transcript of a closeddoor
city council meeting and a video recording of his arrest.
There is thus little risk of a food of retaliatory arrest suits
against high-level policymakers.
As a fnal matter, it must be underscored that this Court
has recognized the “right to petition as one of the most precious
of the liberties safeguarded by the Bill of Rights.”
BE&K Constr. Co. v. NLRB, 536 U. S. 516, 524 (2002) (internal
quotation marks omitted). Lozman alleges the City deprived
him of this liberty by retaliating against him for his
lawsuit against the City and his criticisms of public offcials.
Thus, Lozman's speech is high in the hierarchy of First
Amendment values. See Connick v. Myers, 461 U. S. 138,
145 (1983).
For these reasons, Lozman need not prove the absence of
probable cause to maintain a claim of retaliatory arrest
against the City. On facts like these, Mt. Healthy provides
the correct standard for assessing a retaliatory arrest
claim. The Court need not, and does not, address the elements
required to prove a retaliatory arrest claim in other
contexts.
This is not to say, of course, that Lozman is ultimately
entitled to relief or even a new trial. On remand, the Court
of Appeals, applying Mt. Healthy and other relevant precedents,
may consider any arguments in support of the District
Court's judgment that have been preserved by the City.
Among other matters, the Court of Appeals may wish to
consider (1) whether any reasonable juror could fnd that the
City actually formed a retaliatory policy to intimidate Lozman
during its June 2006 closed-door session; (2) whether
any reasonable juror could fnd that the November 2006 arrest
constituted an offcial act by the City; and (3) whether,
under Mt. Healthy, the City has proved that it would have
arrested Lozman regardless of any retaliatory animus—for
example, if Lozman's conduct during prior city council meetings
had also violated valid rules as to proper subjects of
discussion, thus explaining his arrest here.
102 LOZMAN v. RIVIERA BEACH
Thomas, J., dissenting
For these reasons, the judgment of the Court of Appeals
is vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Thomas, dissenting.
We granted certiorari to decide “whether the existence of
probable cause defeats a First Amendment claim for retaliatory
arrest under [42 U. S. C.] § 1983.” Ante, at 94. Instead
of resolving that question, the Court decides that probable
cause should not defeat a “unique class of retaliatory
arrest claims.” Ante, at 100. To fall within this unique
class, a claim must involve objective evidence, of an offcial
municipal policy of retaliation, formed well before the arrest,
in response to highly protected speech, that has little relation
to the offense of arrest. See ante, at 99–101. No one
briefed, argued, or even hinted at the rule that the Court
announces today. Instead of dreaming up our own rule, I
would have answered the question presented and held that
plaintiffs must plead and prove a lack of probable cause as
an element of a First Amendment retaliatory-arrest claim.
I respectfully dissent.
I
The petition for certiorari asked us to resolve whether
“the existence of probable cause defeat[s] a First Amendment
retaliatory-arrest claim as a matter of law.” Pet. for
Cert. i. That question has divided the federal courts for
decades. See id., at 10–13. We granted certiorari to consider
it six years ago in Reichle v. Howards, 566 U. S. 658,
663 (2012). But we did not resolve it then because the petitioner's
second question presented—whether qualifed immunity
applied—fully resolved the case. Ibid. Since
Reichle, the split in the federal courts has widened. See
Pet. for Cert. 12–13. In this case, we again granted certiorari,
583 U. S. 972 (2017), this time only on the question of
probable cause, see Pet. for Cert. i.
Cite as: 585 U. S. 87 (2018) 103
Thomas, J., dissenting
Yet the Court chooses not to resolve that question, leaving
in place the decades-long disagreement among the federal
courts. The parties concentrated all their arguments on
this question in their briefs and at oral argument. Neither
party suggested that there was something special about
Fane Lozman's claim that would justify a narrower rule.
See, e. g., Tr. of Oral Arg. 15–16 (refusing to take the “fallback
position” that this “is some special kind of case”). Yet
the Court does that work for them by defning a “unique
class of retaliatory arrest claims” that do not require plaintiffs
to plead and prove a lack of probable cause. Ante, at 100.
By my count, the Court has identifed fve conditions that
are necessary to trigger its new rule. First, there must be
“an `offcial municipal policy' of intimidation.” Ante, at 99
(quoting Monell v. New York City Dept. of Social Servs., 436
U. S. 658, 691 (1978)). Second, the policy must be “premeditated”
and formed well before the arrest—here, for example,
the policy was formed “months earlier.” Ante, at 100.1
Third, there must be “objective evidence” of such a policy.
Ibid. Fourth, there must be “little relation” between the
“protected speech” that prompted the retaliatory policy and
“the criminal offense for which the arrest is made.” Ibid.
Finally, the protected speech that provoked the retaliatory
policy must be “high in the hierarchy of First Amendment
values.” Ante, at 101. Where all these features are present,
the Court explains, there is not the same “causation
problem” that exists for other retaliatory-arrest claims.
Ante, at 100.
I fnd it hard to believe that there will be many cases
where this rule will even arguably apply, and even harder to
1 This requirement suggests that the Court's rule does not apply when
the “policy” that the plaintiff challenges is an on-the-spot decision by a
single offcial with fnal policymaking authority, like the “policy” that this
Court recognized in Pembaur v. Cincinnati, 475 U. S. 469 (1986). See id.,
at 484–485 (holding that a county prosecutor's order to forcibly enter the
plaintiff's clinic was a “municipal policy”).
104 LOZMAN v. RIVIERA BEACH
Thomas, J., dissenting
believe that the plaintiffs in those cases will actually prove
all fve requirements. Not even Lozman's case is a good ft,
as the Court admits when it discusses the relevant considerations
for remand. See ante, at 101. In my view, we should
not have gone out of our way to fashion a complicated rule
with no apparent applicability to this case or any other.
II
Turning to the question presented, I would hold that plaintiffs
bringing a First Amendment retaliatory-arrest claim
must plead and prove an absence of probable cause.2 This
Court has “repeatedly noted that 42 U. S. C. § 1983 creates
` “a species of tort liability. ” ' ” Memphis Communi ty
School Dist. v. Stachura, 477 U. S. 299, 305 (1986) (footnote
omitted). Accordingly, we “defn[e] the contours and prerequisites
of a § 1983 claim” by “look[ing] frst to the common
law of torts.” Manuel v. Joliet, 580 U. S. 357, 370 (2017);
see, e. g., Heck v. Humphrey, 512 U. S. 477, 484 (1994) (analogizing
to the “common-law cause of action for malicious
prosecution”); id., at 491 (Thomas, J., concurring) (emphasizing
that the decision was “consistent . . . with the state of
the common law at the time § 1983 was enacted”).
When § 1983 was enacted, there was no common-law tort
for retaliatory arrest in violation of the freedom of speech.
See Hartman v. Moore, 547 U. S. 250, 259 (2006). I would
therefore look to the common-law torts that “provid[e] the
closest analogy” to this claim. Heck, supra, at 484. The
closest analogs here are the three arrest-based torts under
the common law: false imprisonment, malicious prosecution,
and malicious arrest. In defning the elements of these
2 I am skeptical that 42 U. S. C. § 1983 recognizes a claim for retaliatory
arrests under the First Amendment. I adhere to the view that “no
`intent-based' constitutional tort would have been actionable under the
§ 1983 that Congress enacted.” Crawford-El v. Britton, 523 U. S. 574, 612
(1998) (Scalia, J., dissenting). But because no party presses this argument,
I assume that such claims are actionable under § 1983.
Cite as: 585 U. S. 87 (2018) 105
Thomas, J., dissenting
three torts, 19th-century courts emphasized the importance
of probable cause.
Consider frst the tort of false imprisonment. Commonlaw
courts stressed the need to shape this tort with an “indulgence”
for peace offcers, who are “specially charged with
a duty in the enforcement of the laws.” T. Cooley, Law of
Torts 175 (1880) (Cooley); see, e. g., Hogg v. Ward, 3 H. & N.
417, 423, 157 Eng. Rep. 533, 536 (Ex. 1858) (opinion of Watson,
B.) (stressing “the utmost importance that the police
throughout the country should be supported in the execution
of their duty”). Accordingly, private citizens were always
liable for false imprisonment if the arrestee had not actually
committed a felony, but constables were “excused” if they
had “made [the arrest] on reasonable grounds of belief”—
i. e., probable cause. Cooley 175; accord, 2 C. Addison, Law
of Torts § 803, p. 18 (1876); 1 F. Hilliard, The Law of Torts
or Private Wrongs § 18, pp. 207–208, and n. (a) (1866). As
Lord Mansfeld explained, it was “of great consequence to
the police” that probable cause shield offcers from falseimprisonment
claims, as “it would be a terrible thing” if the
threat of liability dissuaded them from performing their offcial
duties. Ledwith v. Catchpole, 2 Cald. 291, 295 (K. B.
1783). This concern outweighed “the mischief and inconvenience
to the public” from the reality that “[m]any an innocent
man has and may be taken up upon such suspicion.” Ibid.
Many State Supreme Courts agreed with Lord Mansfeld's
reasoning. See, e. g., Burns v. Erben, 40 N. Y. 463, 469
(1869) (opinion of Woodruff, J.) (quoting Ledwith); Brockway
v. Crawford, 48 N. C. 433, 437 (1856) (“[The] exempt[ion] from
responsibility” for arrests based on probable cause “encourages
. . . a sharp look-out for the apprehension of felons”).
As one court put it, “How, in the great cities of this land,
could police power be exercised, if every peace offcer is liable
to civil action for false imprisonment” whenever “persons
arrested upon probable cause shall afterwards be found innocent?”
Hawley v. Butler, 54 Barb. 490, 496 (N. Y. 1868).
106 LOZMAN v. RIVIERA BEACH
Thomas, J., dissenting
Courts also stressed the importance of probable cause
when defning the torts of malicious prosecution and malicious
arrest. See, e. g., Ahern v. Collins, 39 Mo. 145, 150
(1866) (holding that “malice and want of probable cause are
necessary ingredients of both”). For the tort of malicious
prosecution, courts emphasized the “necessity” of both the
“allegation” and “proof” of probable cause, in light of the
public interest “that criminals should be brought to justice.”
Hogg v. Pinckney, 16 S. C. 387, 393 (1882); see also Chrisman
v. Carney, 33 Ark. 316, 326 (1878) (“The existence of probable
cause is of itself alone a complete and entire defense . . . .
The interest which society has in the enforcement of the
criminal laws requires this rule”). Similarly, if the element
of probable cause were not “strictly guarded,” “ill consequences
would ensue to the public, for no one would willingly
undertake to vindicate a breach of the public law and discharge
his duty to society, with the prospect of an annoying
suit staring him in the face.” Ventress v. Rosser, 73 Ga. 534,
541 (1884); accord, Cardival v. Smith, 109 Mass. 158 (1872).
The element of probable cause also played an evidentiary
role for both torts. Lack of probable cause provided “evidence
of malice, though inconclusive,” Herman v. Brookerhoff,
8 Watts 240, 241 (Pa. 1839), because “[m]alice may be
inferred from a total want of probable cause,” Ventress,
supra, at 541; accord, Ahern, supra, at 150.
In sum, when § 1983 was enacted, the common law recognized
probable cause as an important element for ensuring
that arrest-based torts did not unduly interfere with the
objectives of law enforcement. Common-law courts were
wary of “throw[ing] down the bars which protect public offcers
from suits for acts done within the scope of their duty
and authority, by recognizing the right of every one who
chooses to imagine or assert that he is aggrieved by their
doings, to make use of an allegation that they were malicious
in motive to harass them with suits on that ground.”
Chesley v. King, 74 Me. 164, 175–176 (1882).
Cite as: 585 U. S. 87 (2018) 107
Thomas, J., dissenting
Applying that principle here, it follows that plaintiffs
bringing a First Amendment retaliatory-arrest claim under
§ 1983 should have to plead and prove a lack of probable
cause. I see no justifcation for deviating from the historical
practice simply because an arrest claim is framed in terms
of the First Amendment. Even under a First Amendment
theory, “the signifcance of probable cause or the lack of it
looms large.” Hartman, 547 U. S., at 265. The presence of
probable cause will tend to disprove that the arrest was done
out of retaliation for the plaintiff's speech, and the absence
of probable cause will tend to prove the opposite. See id.,
at 261. Because “[p]robable cause or its absence will be at
least an evidentiary issue in practically all such cases” and
“[b]ecause showing [its] absence . . . will have high probative
force, and can be made mandatory with little or no added
cost,” the absence of probable cause should be an “element”
of the plaintiff's case. Id., at 265–266; see also id., at 264,
n. 10 (refusing to carve out an exception for unusual cases).
Moreover, as with the traditional arrest-based torts, police
offcers need the safe harbor of probable cause in the First
Amendment context to be able to do their jobs effectively.
Police offcers almost always exchange words with suspects
before arresting them. And often a suspect's “speech provides
evidence of a crime or suggests a potential threat.”
Reichle, 566 U. S., at 668. If probable cause were not required,
the threat of liability might deter an offcer from arresting
a suspected criminal who, for example, has a political
bumper sticker on his car, cf. Kilpatrick v. United States,
432 Fed. Appx. 937 (CA11 2011); is participating in a politically
tinged protest, Morse v. San Francisco Bay Area
Rapid Transit Dist., 2014 WL 572352 (ND Cal., Feb. 11,
2014); or confronts and criticizes the offcer during the arrest
of a third party, Holland v. San Francisco, 2013 WL 968295
(ND Cal., Mar. 12, 2013). Allowing plaintiffs to bring a
retaliatory-arrest claim in such circumstances, without
pleading and proving a lack of probable cause, would permit
108 LOZMAN v. RIVIERA BEACH
Thomas, J., dissenting
plaintiffs to harass offcers with the kind of suits that
common-law courts deemed intolerable.
* * *
Because we should have answered the question presented
and held that probable cause necessarily defeats First
Amendment retaliatory-arrest claims, I respectfully dissent.
OCTOBER TERM, 2017 109
Syllabus
CHAVEZ-MEZA v. UNITED STATES
certiorari to the united states court of appeals for
the tenth circuit
No. 17–5639. Argued April 23, 2018—Decided June 18, 2018
The Federal Sentencing Guidelines require a sentencing judge to frst
identify the recommended Guidelines sentencing range based on certain
offender and offense characteristics. The judge might choose a penalty
within that Guidelines range, or the judge may “depart” or “vary” from
the Guidelines and select a sentence outside the range. See United
States v. Booker, 543 U. S. 220, 258–265. Either way, the judge must
take into account certain statutory sentencing factors, see 18 U. S. C.
§ 3553(a), and must “state in open court the reasons for [imposing] the
particular sentence,” § 3553(c). But when it comes to how detailed that
statement of reasons must be, “[t]he law leaves much . . . to the judge's
own professional judgment.” Rita v. United States, 551 U. S. 338, 356.
The explanation need not be lengthy, especially where “a matter is . . .
conceptually simple . . . and the record makes clear that the sentencing
judge considered the evidence and arguments.” Id., at 359.
Here, petitioner pleaded guilty to possessing methamphetamine with
intent to distribute. The judge reviewed the Guidelines, determined
the range to be 135 to 168 months, and imposed a sentence at the bottom
of the range. The Sentencing Commission later lowered the relevant
range to 108 to 135 months, and petitioner sought a sentence reduction
under § 3582(c)(2). Petitioner asked the judge to reduce his sentence to
the bottom of the new range, but the judge reduced petitioner's sentence
to 114 months instead. The order was entered on a form certifying
that the judge had “considered” petitioner's “motion” and had “tak[en]
into account” the § 3553(a) factors and the relevant Guidelines policy
statement. On appeal, petitioner argued the sentencing judge did not
adequately explain why he rejected petitioner's request for a 108-month
sentence. The Court of Appeals affrmed.
Held: Because the record as a whole demonstrates the judge had a reasoned
basis for his decision, the judge's explanation for petitioner's sentence
reduction was adequate. Pp. 115–120.
(a) The Government argues petitioner was not entitled to an explanation
at all because the statute governing sentence-modifcation motions
does not expressly require a sentencing judge to state his reasons for
imposing a particular sentence. See § 3582(c)(2). It is unnecessary to
go as far as the Government urges, however, because, even assuming
110 CHAVEZ-MEZA v. UNITED STATES
Syllabus
the District Court had a duty to explain its reasons when modifying petitioner's
sentence, what the court did here was suffcient. Pp. 115–116.
(b) Petitioner contends that a district court must explain its reasoning
in greater detail when the court imposes a “disproportionate” sentence
reduction—that is, when the court reduces the prisoner's sentence to a
different point in the amended Guidelines range than the court previously
selected in the original Guidelines range. That argument is unconvincing.
As a technical matter, determining “proportionality” may
prove diffcult when the sentence is somewhere in the middle of the
range. More importantly, the choice among points on the Guidelines
range often refects the belief that the chosen sentence is the “right”
sentence based on various factors, including those found in § 3553(a). If
the applicable Guidelines range is later reduced, it is unsurprising that
the sentencing judge may choose a nonproportional point in the new
range. Pp. 116–117.
(c) Even assuming that a judge reducing a prisoner's sentence must
satisfy the same explanation requirement that applies at an original sentencing,
the District Court's explanation was adequate. At the original
sentencing, petitioner asked for a downward variance from the Guidelines
range, which the judge denied. The judge observed that petitioner's
sentence was high because of the destructiveness of methamphetamine
and the quantity involved. The record from the original
sentencing was before the judge—the same judge who imposed the original
sentence—when he considered petitioner's sentence-modifcation
motion. By entering the form order, the judge certifed that he had
“considered” petitioner's “motion” and had “tak[en] into account” the
§ 3553(a) factors and the relevant Guidelines policy statement. Because
the record as a whole suggests the judge originally believed that 135
months was an appropriately high sentence in light of petitioner's offense
conduct, it is unsurprising that he considered a sentence somewhat
higher than the bottom of the reduced range to be appropriate as well.
That is not to say that a disproportionate sentence reduction never may
require a more detailed explanation. But given the simplicity of this
case, the judge's awareness of the arguments, his consideration of the
relevant sentencing factors, and the intuitive reason why he picked a
sentence above the very bottom of the new range, his explanation fell
within the scope of lawful professional judgment that the law confers
upon the sentencing judge. Pp. 117–120.
854 F. 3d 655, affrmed.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Thomas, Ginsburg, and Alito, JJ., joined. Kennedy, J., fled a disCite
as: 585 U. S. 109 (2018) 111
Opinion of the Court
senting opinion, in which Sotomayor and Kagan, JJ., joined, post, p. 120.
Gorsuch, J., took no part in the consideration or decision of the case.
Todd A. Coberly, by appointment of the Court, 583 U. S.
1166, argued the cause for petitioner. With him on the
briefs were A. Nathaniel Chakeres, Steven J. Horowitz, Jeffrey
T. Green, and Sarah O'Rourke Schrup.
Deputy Attorney General Rosenstein argued the cause for
the United States. On the brief were Solicitor General
Francisco, Acting Assistant Attorney General Cronan, Eric
J. Feigin, Morgan L. Goodspeed, and Alexander P. Robbins.*
Justice Breyer delivered the opinion of the Court.
This case concerns a criminal drug offender originally sentenced
in accordance with the Federal Sentencing Guidelines.
Subsequently, the Sentencing Commission lowered
the applicable Guidelines sentencing range; the offender
asked for a sentence reduction in light of the lowered range;
and the District Judge reduced his original sentence from
135 months' imprisonment to 114 months'. The offender,
believing he should have obtained a yet greater reduction,
argues that the District Judge did not adequately explain
why he imposed a sentence of 114 months rather than a
lower sentence. The Court of Appeals held that the judge's
explanation was adequate. And we agree with the Court
of Appeals.
I
A
The Sentencing Guidelines require a sentencing judge to
consider certain listed characteristics of the offender and the
offense for which he was convicted. Those characteristics
*Briefs of amici curiae urging reversal were fled for the Center on the
Administration of Criminal Law by Mark W. Mosier; and for the National
Association of Criminal Defense Lawyers et al. by Amy Mason Saharia,
Barbara E. Bergman, Donna F. Coltharp, Sarah S. Gannett, and Daniel
L. Kaplan.
112 CHAVEZ-MEZA v. UNITED STATES
Opinion of the Court
(and certain other factors) bring the judge to a Guidelines
table that sets forth a range of punishments, for example,
135 to 168 months' imprisonment. A sentencing judge often
will choose a specifc penalty from a Guidelines range. But
a judge also has the legal authority to impose a sentence
outside the range either because he or she “departs” from
the range (as is permitted by certain Guidelines rules) or
because he or she chooses to “vary” from the Guidelines by
not applying them at all. See United States v. Booker, 543
U. S. 220, 258–265 (2005) (holding the Sentencing Guidelines
are advisory). The judge, however, must always take account
of certain statutory factors. See 18 U. S. C. § 3553(a)
(requiring the judge to consider the “seriousness of the offense”
and the need to “afford adequate deterrence,” among
other factors). And, of particular relevance here, the judge
“shall state in open court the reasons for [the] imposition of
the particular sentence.” § 3553(c). If the sentence is outside
the Guidelines range (whether because of a “departure”
or a “variance”), the judge must state “the specifc reason
for the imposition of a . . . different” sentence. § 3553(c)(2).
If the sentence is within the Guidelines range, and the Guidelines
range exceeds 24 months, the judge must also state
“the reason for imposing a sentence at a particular point
within the range.” § 3553(c)(1).
B
We here consider one aspect of the judge's obligation to
provide reasons. In an earlier case, we set forth the law
that governs the explanation requirement at sentencing. In
Rita v. United States, 551 U. S. 338 (2007), the offender
sought a downward departure from the Guidelines. The
record, we said, showed that the sentencing judge “listened
to each argument[,] . . . considered the supporting evidence[,]
. . . was fully aware of defendant's various physical ailments[,]”
imposed a sentence at the bottom of the Guidelines
range, and, having considered the § 3553(a) factors, said simCite
as: 585 U. S. 109 (2018) 113
Opinion of the Court
ply that the sentence was “ `appropriate.' ” Id., at 358. We
held that where “a matter is as conceptually simple as in the
case at hand and the record makes clear that the sentencing
judge considered the evidence and arguments, we do not believe
the law requires the judge to write more extensively.”
Id., at 359.
We also discussed more generally the judge's obligation to
explain. We wrote that the statute calls
“for the judge to `state' his `reasons.' And that requirement
refects sound judicial practice. Judicial decisions
are reasoned decisions. Confdence in a judge's use of
reason underlies the public's trust in the judicial institution.
A public statement of those reasons helps provide
the public with the assurance that creates that trust.”
Id., at 356.
But, we continued,
“we cannot read the statute (or our precedent) as insisting
upon a full opinion in every case. The appropriateness
of brevity or length, conciseness or detail, when to
write, what to say, depends upon circumstances. Sometimes
a judicial opinion responds to every argument;
sometimes it does not; sometimes a judge simply writes
the word `granted' or `denied' on the face of a motion
while relying upon context and the parties' prior arguments
to make the reasons clear. The law leaves much,
in this respect, to the judge's own professional judgment.”
Ibid.
At bottom, the sentencing judge need only “set forth enough
to satisfy the appellate court that he has considered the parties'
arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.” Ibid.
When a judge applies a sentence within the Guidelines
range, he or she often does not need to provide a lengthy
explanation. As we said in Rita, “[c]ircumstances may well
make clear that the judge rests his decision upon the Com114
CHAVEZ-MEZA v. UNITED STATES
Opinion of the Court
mission's own reasoning that the Guidelines sentence is a
proper sentence (in terms of § 3553(a) and other congressional
mandates) in the typical case, and that the judge has
found that the case before him is typical.” Id., at 357.
We have followed this same reasoning in other sentencing
cases, including Gall v. United States, 552 U. S. 38 (2007),
which we decided the same year as Rita. Cf. Kimbrough v.
United States, 552 U. S. 85, 109 (2007) (suggesting a district
judge's decision to vary from the Guidelines range may be
entitled to greater respect when the judge fnds a particular
case “ `outside the “heartland” ' ” of the Guidelines). Indeed,
the case before us differs from the Guidelines cases that Rita
describes in only one signifcant respect. It concerns a limited
form of resentencing.
C
The relevant lower court proceedings are not complicated.
In 2013, petitioner pleaded guilty to a federal crime, namely,
possessing methamphetamine with the intent to distribute
it. The judge reviewed the Guidelines, determined that the
applicable range was 135 to 168 months' imprisonment, and
imposed a sentence at the bottom of that range: 135 months.
Pursuant to its statutory authority, the Sentencing Commission
subsequently lowered the relevant Guidelines range
from 135 to 168 months to 108 to 135 months. United States
Sentencing Commission, Guidelines Manual App. C, Amdt.
782 (Supp. Nov. 2012–Nov. 2016) (USSG); see also 28 U. S. C.
§ 994(o). Petitioner then sought and obtained a sentence
modifcation. See 18 U. S. C. § 3582(c)(2); USSG § 1B1.10.
He asked the judge to lower his sentence to the bottom of
the new range, namely, 108 months. But the judge instead
lowered it to 114 months, not 108 months. The order was
entered on a form issued by the Administrative Offce of the
United States Courts. The form certifed the judge had
“considered” petitioner's motion and “tak[en] into account”
the § 3553(a) factors and the relevant Guidelines policy statement.
App. 106–107 (under seal).
Cite as: 585 U. S. 109 (2018) 115
Opinion of the Court
Petitioner appealed, claiming that the judge did not adequately
explain why he rejected petitioner's 108-month request.
The Court of Appeals rejected his argument. 854
F. 3d 655 (CA10 2017). In its view, “absent any indication
the court failed to consider the § 3553(a) factors, a district
court . . . need not explain choosing a particular guidelinesrange
sentence.” Id., at 659. Petitioner sought certiorari,
and we granted his petition.
II
A
The Government, pointing out that this is a sentencemodifcation
case, argues that this fact alone should secure
it a virtually automatic victory. That is because, unlike an
ordinary Guidelines sentencing case, the statute governing
sentence-modification motions does not insist that the
judge provide a “reason for imposing a sentence at a particular
point within the range.” Compare § 3553(c)(1) with
§ 3582(c)(2). It adds that sentence modifcations also differ
procedurally from sentencing in that the offender is not entitled
to be present in court at the time the reduced sentence
is imposed. See Dillon v. United States, 560 U. S. 817, 828
(2010) (citing Fed. Rule Crim. Proc. 43(b)(4)). As we have
said before, “Congress intended to authorize only a limited
adjustment to an otherwise fnal sentence and not a plenary
resentencing proceeding.” Dillon, supra, at 826. These
procedural features, the Government asserts, mean that “the
court has no duty” to provide an “on-the-record explanation”
of its reasons. Brief for United States 12, 19.
We need not go so far. Even assuming (purely for argument's
sake) district courts have equivalent duties when initially
sentencing a defendant and when later modifying the
sentence, what the District Court did here was suffcient.
At the original sentencing, the judge “must adequately explain
the chosen sentence to allow for meaningful appellate review.”
Gall, 552 U. S., at 50; see also Rita, 551 U. S., at 356
116 CHAVEZ-MEZA v. UNITED STATES
Opinion of the Court
(“The sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties' arguments
and has a reasoned basis for exercising his own legal decisionmaking
authority”). Just how much of an explanation
this requires, however, depends, as we have said, upon the
circumstances of the particular case. Id., at 356–357. In
some cases, it may be suffcient for purposes of appellate review
that the judge simply relied upon the record, while
making clear that he or she has considered the parties' arguments
and taken account of the § 3553(a) factors, among others.
But in other cases, more explanation may be necessary
(depending, perhaps, upon the legal arguments raised at sentencing,
see id., at 357). That may be the case even when
there is little evidence in the record affrmatively showing
that the sentencing judge failed to consider the § 3553(a) factors.
If the court of appeals considers an explanation inadequate
in a particular case, it can send the case back to the
district court for a more complete explanation. Cf. Molina-
Martinez v. United States, 578 U. S. 189, 204 (2016) (“[A]ppellate
courts retain broad discretion in determining whether a
remand for resentencing is necessary”).
B
Petitioner argues that the judge should have explained
more here because there is, or should be, some kind of presumption
that the judge will choose a point within the new
lower Guidelines range that is “proportional” to the point
previously chosen in the older higher Guidelines range. We
are not aware of any law or any convincing reason, however,
suggesting that this is so.
As a technical matter, determining just what “proportionality”
means in this context would often prove diffcult when
the sentence is somewhere in the middle of the Guidelines
range. The Sentencing Table calculates punishments
according to a logarithmic scale. Take petitioner's original
and amended Guidelines ranges, for example. The original
Cite as: 585 U. S. 109 (2018) 117
Opinion of the Court
range was 135 to 168 months, a difference of 33 months.
The amended range, by comparison, is 108 to 135 months, a
difference of 27 months. And viewed logarithmically, what
may seem the middle of a new lower range is not necessarily
proportionate to what may seem the middle of the old higher
range. Nothing in the Guidelines, or elsewhere, encourages
arguments about such matters among lawyers or judges who
are not experts in advanced mathematics.
More importantly, the Guidelines ranges refect to some
degree what many, perhaps most, judges believed in the pre-
Guidelines era was a proper sentence based upon the criminal
behavior at issue and the characteristics of the offender.
Thus, a judge's choice among points on a range will often
simply refect the judge's belief that the chosen sentence is
the “right” sentence (or as close as possible to the “right”
sentence) based on various factors, including those found in
§ 3553(a). Insofar as that is so, it is unsurprising that changing
the applicable range may lead a judge to choose a nonproportional
point on the new range. We see nothing that favors
the one or the other. So, as is true of most Guidelines
sentences, the judge need not provide a lengthy explanation
if the “context and the record” make clear that the judge
had “a reasoned basis” for reducing the defendant's sentence.
Rita, supra, at 356, 359.
C
Turning to the facts of this case, we fnd that the District
Court's explanation satisfes the standard we used in Rita
and Gall, assuming it applies to sentence modifcations. In
Rita, as we earlier said, we upheld as lawful a sentencing
judge's explanation that stated simply that the Guidelines
sentence imposed was “ `appropriate.' ” 551 U. S., at 358.
We noted that, in respect to the brevity or length of the
reasons the judge gives for imposing a particular Guidelines
sentence, the “law leaves much” to “the judge's own professional
judgment.” Id., at 356. We pointed out that the sentencing
judge in that case had “set forth enough to satisfy
118 CHAVEZ-MEZA v. UNITED STATES
Opinion of the Court
the appellate court that he ha[d] considered the parties' arguments
and ha[d] a reasoned basis for exercising his own
legal decisionmaking authority.” Ibid. The same is true
here.
At petitioner's original sentencing, he sought a variance
from the Guidelines range (135 to 168 months) on the ground
that his history and family circumstances warranted a lower
sentence. The judge denied his request. In doing so, the
judge noted that he had “consulted the sentencing factors of
18 U. S. C. 3553(a)(1).” He explained that the “reason the
guideline sentence is high in this case, even the low end of
135 months, is because of the [drug] quantity.” He pointed
out that petitioner had “distributed 1.7 kilograms of actual
methamphetamine,” a “signifcant quantity.” And he said
that “one of the other reasons that the penalty is severe in
this case is because of methamphetamine.” He elaborated
this latter point by stating that he had “been doing this a
long time, and from what [he] gather[ed] and what [he had]
seen, methamphetamine, it destroys individual lives, it destroys
families, it can destroy communities.” App. 25.
This record was before the judge when he considered petitioner's
request for a sentence modifcation. He was the
same judge who had sentenced petitioner originally. Petitioner
asked the judge to reduce his sentence to 108 months,
the bottom of the new range, stressing various educational
courses he had taken in prison. The Government pointed to
his having also broken a moderately serious rule while in
prison. The judge certifed (on a form) that he had “considered”
petitioner's “motion” and had “tak[en] into account”
the relevant Guidelines policy statements and the § 3553(a)
factors. Id., at 106–107 (under seal). He then reduced the
sentence to 114 months. The record as a whole strongly suggests
that the judge originally believed that, given petitioner's
conduct, 135 months was an appropriately high sentence.
So it is unsurprising that the judge considered a sentence
somewhat higher than the bottom of the reduced range to be
Cite as: 585 U. S. 109 (2018) 119
Opinion of the Court
appropriate. As in Rita, there was not much else for the
judge to say.
The dissent would have us ignore the record from the initial
sentencing and consider only what the judge said when
modifying petitioner's sentence. See post, at 123–124 (opinion
of Kennedy, J.). But, as we have made clear before, a
sentence modifcation is “not a plenary resentencing proceeding.”
Dillon, 560 U. S., at 826. We therefore need not turn
a blind eye to what the judge said at petitioner's initial sentencing.
The dissent suggests the judge's failure to grant
petitioner a proportional reduction “limits the relevance of
the initial sentencing proceeding.” Post, at 124. To the
contrary, the record of the initial sentencing sheds light on
why the court picked a point slightly above the bottom of
the reduced Guidelines range when it modifed petitioner's
sentence. Our decision is not (as the dissent claims) based
on mere “speculation.” Post, at 126. Rather, we simply
fnd the record as a whole satisfes us that the judge “considered
the parties' arguments and ha[d] a reasoned basis for
exercising his own legal decisionmaking authority.” Rita,
supra, at 356.
This is not to say that a disproportionate sentence reduction
never may require a more detailed explanation. It
could be that, under different facts and a different record,
the district court's use of a barebones form order in response
to a motion like petitioner's would be inadequate. As we
said above, the courts of appeals are well suited to request
a more detailed explanation when necessary. See supra, at
116. The dissent asserts that appellate courts would not need
to remand for further explanation if district courts provided
an additional “short statement or check[ed] additional boxes”
on the form order. Post, at 126. That may be so, and nothing
in this decision prevents judges from saying more when,
in their professional judgment, saying more is appropriate.
Providing a more detailed statement of reasons often serves
“a salutary purpose” separate and apart from facilitating ap120
CHAVEZ-MEZA v. UNITED STATES
Kennedy, J., dissenting
pellate review. Rita, 551 U. S., at 357. But our task here
is to decide the case before us. And given the simplicity of
this case, the judge's awareness of the arguments, his consideration
of the relevant sentencing factors, and the intuitive
reason why he picked a sentence above the very bottom
of the new range, the judge's explanation (minimal as it was)
fell within the scope of the lawful professional judgment
that the law confers upon the sentencing judge. See id.,
at 356.
The Court of Appeals concluded the same. Its judgment
is therefore affrmed.
It is so ordered.
Justice Gorsuch took no part in the consideration or decision
of this case.
Justice Kennedy, with whom Justice Sotomayor and
Justice Kagan join, dissenting.
When the District Court reduced petitioner Adaucto
Chavez-Meza's sentence, it entered its order on a terse “AO–
247” form. An example of this form is attached as an
Appendix, infra. On the form order, the District Court
checked a box next to preprinted language stating that it
had “considered” Chavez-Meza's motion for a reduced sentence
and that it had “tak[en] into account the policy statement
set forth at USSG § 1B1.10 and the sentencing factors
set forth in 18 U. S. C. § 3553(a), to the extent that they are
applicable.” App. 106–107 (under seal). The District Court
checked another box indicating that Chavez-Meza's motion
was granted, and the court stated that it was reducing his
sentence to 114 months. Ibid. But the District Court did
not explain why it chose that particular sentence or why it
had not sentenced Chavez-Meza to the bottom of his Guidelines
range, as it had done at his original sentencing. Under
these circumstances, in my view the District Court's order
Cite as: 585 U. S. 109 (2018) 121
Kennedy, J., dissenting
was insuffcient to allow for meaningful appellate review, a
conclusion that requires this respectful dissent.
My disagreement with the majority is based on a serious
problem—the diffculty for prisoners and appellate courts in
ascertaining a district court's reasons for imposing a sentence
when the court fails to state those reasons on the record;
yet, in the end, my disagreement turns on a small difference,
for a remedy is simple and easily attained.
Just a slight expansion of the AO–247 form would answer
the concerns expressed in this dissent in most cases, and
likely in the instant one. If the form were expanded to include
just a few more categories covering the factors most
often bearing on a trial court's sentencing determination, the
objections petitioner raises likely would be met. The statute
would be satisfed; district judges would have a helpful
form that might well reduce the time for consideration of
cases—and even if not would help ensure the full consideration
which tends to result in uniformity and fairness; the
courts of appeals, from the outset, would have far more assistance
in determining whether appeals have merit; and this
in turn would yield judicial effciencies that the sentencing
system must have to be effective and that courts of appeals
must have to ensure that the relevant statute can be administered
and applied in an effcient, fair, and uniform way.
The Court today, however, gives its full approval to a conclusory
order. Its resulting holding is detrimental to the judicial
system and to prisoners alike.
The Sentencing Reform Act of 1984 authorizes a district
court to reduce a prisoner's sentence when he “has been sentenced
to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission.” 18 U. S. C. § 3582(c)(2). Congress specifed
that district courts may reduce a defendant's sentence only
“after considering the factors set forth in section 3553(a) to
the extent that they are applicable, if such a reduction is
122 CHAVEZ-MEZA v. UNITED STATES
Kennedy, J., dissenting
consistent with applicable policy statements issued by the
Sentencing Commission.” Ibid.
In United States v. Taylor, 487 U. S. 326, 336 (1988), this
Court addressed a statutory scheme that, like § 3582(c)(2),
required district courts to consider specifc statutory factors
when they exercised their discretion. The Court held that
“[w]here, as here, Congress has declared that a decision will
be governed by consideration of particular factors, a district
court must carefully consider those factors as applied to the
particular case and, whatever its decision, clearly articulate
their effect in order to permit meaningful appellate review.”
Id., at 336–337.
Here, the form order fails to provide suffcient information
either to give adequate and effcient instruction to the trial
court or to permit meaningful appellate review. The form
order discloses no basis for determining why the District
Court did not sentence Chavez-Meza to the bottom of his
new Guidelines range, as it had when it imposed his original
sentence.
The Court points out that there is no presumption in
favor of a proportional reduction when a judge reduces a
prisoner's sentence pursuant to § 3582(c)(2). Ante, at 116–
117. That is true, as far as it goes. The issue here, however,
is not whether district courts must grant proportional
reductions; rather, the issue is what explanation should be
required to permit meaningful review of a trial court's resentencing
order.
The amount of necessary explanation might be different
when a district court grants a proportional reduction—for
example, when it sentences a defendant to the top or the
bottom of his Guidelines range for both the initial and reduced
sentence. In that circumstance, in most instances, an
appellate court properly can infer that the district court's
reasons were the same as those it gave when it imposed the
initial sentence. See Brief for National Association of Criminal
Defense Lawyers et al. as Amici Curiae 6–11 (explainCite
as: 585 U. S. 109 (2018) 123
Kennedy, J., dissenting
ing that district courts typically grant proportional reductions
and that the Sentencing Commission often assumes
they will do so). Less explanation is necessary, not because
proportional reductions are favored as a legal matter but
because the initial sentencing proceeding provides a record
from which an appellate court can make prompt and reliable
inferences as to the reasons that informed the trial court's
decision to resentence a defendant to the same relative point
on his amended Guidelines range. Contrary to the Court's
suggestion, furthermore, one need not have an advanced degree
in mathematics, much less a calculator, to draw this
reasonable inference. District courts, as a matter of routine,
regularly grant proportional reductions; and it seems
unlikely that they conduct intricate logarithmic computations
before doing so.
In contrast to a proportional reduction in a prisoner's sentence,
a nonproportional reduction suggests that the district
court's reasons for choosing a particular sentence might
be different from those it gave when it imposed the
sentence in the frst instance. Accordingly, a more specifc
explanation—but by no means an elaborate one—is necessary
for an appellate court to determine why the district
court chose a new point on the revised Guidelines range.
The Court's analogy to Rita v. United States, 551 U. S. 338,
356 (2007), fails as well. See ante, at 117–119. In Rita, the
District Court imposed the defendant's sentence at a hearing.
The record made clear that “the sentencing judge listened
to each argument,” “considered the supporting evidence,”
and then determined that a 33-month sentence
was “appropriate.” 551 U. S., at 358. But here there was
no hearing when the District Court reduced Chavez-
Meza's sentence in light of the amended Guidelines. The
District Court's reasoning must be surmised from its terse,
largely uninformative order. At Chavez-Meza's initial sentencing
there was a hearing similar to the one in Rita. But
the fact that the District Court did not grant Chavez124
CHAVEZ-MEZA v. UNITED STATES
Kennedy, J., dissenting
Meza a proportional reduction when it later reconsidered
his sentence limits the relevance of the initial sentencing
proceeding.
The District Court may well have had a legitimate reason
for reducing Chavez-Meza's sentence to 114 months instead
of 108 months. And even a brief explanation stating that
reason likely would have suffced, for district courts need
not write at length each time they rule upon a § 3582(c)(2)
motion.
The Court is quite correct to point out that a trial judge
“need only `set forth enough to satisfy the appellate court
that he has considered the parties' arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.'
” Ante, at 113 (quoting Rita, supra, at 356). It is
likely that even a checkbox form would suffce in most cases,
provided the form lists enough of the common reasons so
that an appellate court, in most cases, can easily ascertain
why the district court chose a particular sentence. Here,
for example, the District Court simply could have added a
sentence or two to the AO–247 form's “Additional Comments”
box. Or, perhaps preferably, trial courts could use
an expanded version of the AO–247 form that allows judges
to indicate, even by checking a box, the reason or reasons for
choosing a particular sentence.
In this case, however, the District Court's reasons remain
a mystery. The Court today speculates that the District
Court sentenced Chavez-Meza to 114 months because he distributed
a large quantity of methamphetamine. Ante, at
118–119. For its part, the Court of Appeals speculated that
the reason might have been “an incident of misconduct while
in prison.” 854 F. 3d 655, 660 (CA10 2017). But there is no
basis for these assumptions in the District Court's order.
The sort of guesswork the Court relies upon in today's decision
is insuffcient to provide meaningful appellate review of
a district court's exercise of its discretion under § 3582(c)(2).
See Taylor, 487 U. S., at 342–343.
Cite as: 585 U. S. 109 (2018) 125
Kennedy, J., dissenting
According to the Court of Appeals, the relevant provisions
of the Sentencing Reform Act must be read to allow a trial
court not to give or state any reasons at all for a resentencing
order. 854 F. 3d, at 658. This was error. The Court
of Appeals reached its conclusion by comparing the provisions
that relate to original sentencing—§ 3553(c)—with the
provisions that pertain to the resentencing process—
§ 3582(c)(2). It reasoned that, because the former has an express
requirement to state reasons while the latter does not,
the statutory structure eliminates any requirement for reasons
upon resentencing. The Court of Appeals' analysis,
however, ignores the scope of the statutory text in § 3553(c).
That section pertains to a procedure that is a full-scale adversary
proceeding, where the defendant and counsel are
present. As part of that procedure, the statute states: “The
court, at the time of sentencing, shall state in open court
the reasons for its imposition of the particular sentence.”
§ 3553(c).
The statute does not require a full-scale adversary proceeding
when resentencing is being considered after a Guidelines
reduction. But it is incorrect to conclude that the
absence of all those requirements forecloses the necessity to
make a record that allows an appellate court to exercise
meaningful review of the reasons for the resentencing order.
This conclusion follows from this Court's decision in Taylor,
holding that courts must “clearly articulate” their reasoning
“in order to permit meaningful appellate review,” even without
any specifc statutory command. 487 U. S., at 336–337.
So the fact that Congress adopted a detailed explanatory requirement
in another part of the statute does not displace
Taylor's background rule that district courts must provide
enough reasoning for appellate courts to review their decisions
when they exercise discretion under a statute like
§ 3582(c)(2).
The Court quite correctly rejects the Government's invitation
to adopt the Court of Appeals' interpretation. See
126 CHAVEZ-MEZA v. UNITED STATES
Kennedy, J., dissenting
ante, at 115–116. The Court's ensuing analysis, however, is,
in my respectful view, still incorrect. On the one hand, the
Court holds that appellate courts may determine on a caseby-
case basis whether a form order like the one here provides
enough explanation. See ante, at 116, 119. Thus, any
prisoner can appeal and argue that the order was insuffcient
in his case. On the other hand, the Court does not impose
any serious requirement that a district court state its reasons
on the front end—that is, before the appeal, when the
district court rules on the § 3582(c)(2) motion. Thus, in
cases like this one, appeals will often be based on speculation
that requires the prisoner, the Government, and the court of
appeals to hypothesize the potential reasons for the prisoner's
sentence when a reduction is weighed and considered.
This is an unwise allocation of judicial resources. District
courts, to state the obvious, are best positioned to explain
their reasons for imposing a particular sentence. Under the
majority's opinion, however, appellate courts will often lack
clarity as to a district court's reasoning and will be forced to
either speculate (as the Court does today) based on their own
view of the record, or remand the case for further explanation,
likely followed by another appeal. What could have
taken a sentence or two at the front end now can, and likely
will, produce dozens of pages of briefs, bench memoranda,
orders, and judicial opinions as the case makes its way frst
to the appellate court, then back down to the trial court and
perhaps back to the appellate court again.
A better, more effcient rule would require trial courts in
cases like this one to provide their reasons in their initial
decisions either by giving a short statement or checking additional
boxes. We must be conscious of the fact that retroactive
amendments to the Guidelines can result in thousands
of resentencings. That is all the more reason the ineffciencies
resulting from today's decision ought to be avoided.
And given the uncertainty that will ensue from today's decision,
district courts would be wise to say more than the court
Cite as: 585 U. S. 109 (2018) 127
Appendix to opinion of Kennedy, J.
said in this case, even in the absence of a holding requiring
it to do so on the specifc facts at issue here.
For these reasons, I respectfully dissent.
APPENDIX
128 CHAVEZ-MEZA v. UNITED STATES
Appendix to opinion of Kennedy, J.
OCTOBER TERM, 2017 129
Syllabus
ROSALES-MIRELES v. UNITED STATES
certiorari to the united states court of appeals for
the fth circuit
No. 16–9493. Argued February 21, 2018—Decided June 18, 2018
Each year, district courts sentence thousands of individuals to imprisonment
for violations of federal law. To help ensure certainty and fairness
in those sentences, federal district courts are required to consider
the advisory United States Sentencing Guidelines. Prior to sentencing,
the United States Probation Offce prepares a presentence investigation
report to help the court determine the applicable Guidelines range. Ultimately,
the district court is responsible for ensuring the Guidelines
range it considers is correct. At times, however, an error in the calculation
of the Guidelines range goes unnoticed by the court and the parties.
On appeal, such errors not raised in the district court may be remedied
under Federal Rule of Criminal Procedure 52(b), provided that, as established
in United States v. Olano, 507 U. S. 725: (1) the error was not
“intentionally relinquished or abandoned,” (2) the error is plain, and
(3) the error “affected the defendant's substantial rights,” Molina-
Martinez v. United States, 578 U. S. 189, 194. If those conditions are
met, “the court of appeals should exercise its discretion to correct the
forfeited error if the error ` “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” ' ” Ibid. This last consideration
is often called Olano's fourth prong. The issue here is when a
Guidelines error that satisfes Olano's frst three conditions warrants
relief under the fourth prong.
Petitioner Florencio Rosales-Mireles pleaded guilty to illegal reentry
into the United States. In calculating the Guidelines range, the Probation
Offce's presentence report mistakenly counted a state misdemeanor
conviction twice. As a result, the report yielded a Guidelines range of
77 to 96 months, when the correctly calculated range would have been
70 to 87 months. Rosales-Mireles did not object to the error in the
District Court, which relied on the miscalculated Guidelines range and
sentenced him to 78 months of imprisonment. On appeal, Rosales-
Mireles challenged the incorrect Guidelines range for the frst time.
The Fifth Circuit found that the Guidelines error was plain and that it
affected Rosales-Mireles' substantial rights because there was a “reasonable
probability that he would have been subject to a different sentence
but for the error.” The Fifth Circuit nevertheless declined to
remand the case for resentencing, concluding that Rosales-Mireles had
130 ROSALES-MIRELES v. UNITED STATES
Syllabus
not established that the error would seriously affect the fairness, integrity,
or public reputation of judicial proceedings because neither the
error nor the resulting sentence “would shock the conscience.”
Held: A miscalculation of a Guidelines sentencing range that has been
determined to be plain and to affect a defendant's substantial rights
calls for a court of appeals to exercise its discretion under Rule 52(b) to
vacate the defendant's sentence in the ordinary case. Pp. 137–145.
(a) Although “Rule 52(b) is permissive, not mandatory,” Olano, 507
U. S., at 735, it is well established that courts “should” correct a forfeited
plain error affecting substantial rights “if the error `seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings,' ” id.,
at 736. Like the narrow rule rejected in Olano, which would have
called for relief only for a miscarriage of justice, the Fifth Circuit's
shock-the-conscience standard too narrowly confnes the extent of the
court of appeals' discretion. It is not refected in Rule 52(b), nor in
how the plain-error doctrine has been applied by this Court, which has
reversed judgments for plain error based on inadvertent or unintentional
errors by the court or the parties below and has remanded cases
involving such errors, including sentencing errors, for consideration of
Olano's fourth prong. The errors are not required to amount to a “powerful
indictment” of the system. The Fifth Circuit's emphasis on the
district judge's “competence or integrity” also unnecessarily narrows
Olano's instruction to correct an error if it seriously affects “judicial
proceedings.” Pp. 137–139.
(b) The effect of the Fifth Circuit's heightened standard is especially
pronounced in cases like this one. An error resulting in a higher range
than the Guidelines provide usually establishes a reasonable probability
that a defendant will serve a prison sentence greater than “necessary”
to fulfill the purposes of incarceration, 18 U. S. C. § 3553(a). See
Molina-Martinez, 578 U. S., at 198. That risk of unnecessary deprivation
of liberty particularly undermines the fairness, integrity, or public
reputation of judicial proceedings in the context of a plain Guidelines
error because Guidelines miscalculations ultimately result from judicial
error, as the district court is charged in the frst instance with ensuring
the Guidelines range it considers is correct. Moreover, remands for
resentencing are relatively inexpensive proceedings compared to remands
for retrial. Ensuring the accuracy of Guidelines determinations
also furthers the Sentencing Commission's goal of achieving uniformity
and proportionality in sentencing more broadly, since including uncorrected
sentences based on incorrect Guidelines ranges in the data the
Commission collects could undermine the Commission's ability to make
appropriate revisions to the Guidelines. Because any exercise of disCite
as: 585 U. S. 129 (2018) 131
Syllabus
cretion at the fourth prong of Olano inherently requires “a case-specifc
and fact-intensive” inquiry, Puckett v. United States, 556 U. S. 129, 142,
countervailing factors may satisfy the court of appeals that the fairness,
integrity, and public reputation of the proceedings will be preserved absent
correction. But there are no such factors in this case. Pp. 139–142.
(c) The Government and dissent maintain that even though the Fifth
Circuit's standard was inaccurate, Rosales-Mireles is still not entitled
to relief. But their arguments are unpersuasive. They caution that
granting this type of relief would be inconsistent with the Court's statements
that discretion under Rule 52(b) should be exercised “sparingly,”
Jones v. United States, 527 U. S. 373, 389, and reserved for “exceptional
circumstances,” United States v. Atkinson, 297 U. S. 157, 160. In contrast
to the Jones remand, however, no additional jury proceedings
would be required in a remand for resentencing based on a Guidelines
miscalculation. Plus, the circumstances of Rosales-Mireles' case are exceptional
under this Court's precedent, as they are reasonably likely to
have resulted in a longer prison sentence than necessary and there are
no countervailing factors that otherwise further the fairness, integrity,
or public reputation of judicial proceedings. The Government and dissent
also assert that Rosales-Mireles' sentence is presumptively reasonable
because it falls within the corrected Guidelines range. But a court
of appeals can consider a sentence's substantive reasonableness only
after it ensures “that the district court committed no signifcant procedural
error, such as failing to calculate (or improperly calculating) the
Guidelines range.” Gall v. United States, 552 U. S. 38, 51. If a district
court cannot properly determine whether, considering all sentencing
factors, including the correct Guidelines range, a sentence is “suffcient,
but not greater than necessary,” 18 U. S. C. § 3553(a), the resulting sentence
would not bear the reliability that would support a “presumption
of reasonableness” on review. See 552 U. S., at 51. And regardless of
its ultimate reasonableness, a sentence that lacks reliability because of
unjust procedures may well undermine public perception of the proceedings.
Finally, the Government and dissent maintain that the Court's
decision will create an opportunity for “sandbagging” that Rule 52(b) is
supposed to prevent. But that concern fails to account for the realities
at play in sentencing proceedings, where it is highly speculative that a
defendant would beneft from a strategy of deliberately forgoing an objection
in the district court, with hopes of arguing for reversal under
plain-error review later. Pp. 142–145.
850 F. 3d 246, reversed and remanded.
Sotomayor, J., delivered the opinion of the Court, in which Roberts,
C. J., and Kennedy, Ginsburg, Breyer, Kagan, and Gorsuch, JJ.,
132 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
joined. Thomas, J., fled a dissenting opinion, in which Alito, J., joined,
post, p. 145.
Kristin L. Davidson argued the cause for petitioner.
With her on the briefs were Maureen Scott Franco, Bradford
W. Bogan, Jeffrey T. Green, Joshua J. Fougere, and Timothy
Crooks.
Jonathan Y. Ellis argued the cause for the United States.
With him on the brief were Solicitor General Francisco,
Acting Assistant Attorney General Cronan, Deputy Solicitor
General Dreeben, Robert A. Parker, and Kirby A.
Heller.*
Justice Sotomayor delivered the opinion of the Court.
Federal Rule of Criminal Procedure 52(b) provides that a
court of appeals may consider errors that are plain and affect
substantial rights, even though they are raised for the frst
time on appeal. This case concerns the bounds of that discretion,
and whether a miscalculation of the United States
Sentencing Guidelines range, that has been determined to be
plain and to affect a defendant's substantial rights, calls for
a court of appeals to exercise its discretion under Rule 52(b)
to vacate the defendant's sentence. The Court holds that
such an error will in the ordinary case, as here, seriously
affect the fairness, integrity, or public reputation of judicial
proceedings, and thus will warrant relief.
I
A
Each year, thousands of individuals are sentenced to terms
of imprisonment for violations of federal law. District
courts must determine in each case what constitutes a sen-
*A brief of amici curiae urging reversal was fled for the National Association
of Criminal Defense Lawyers et al. by John D. Cline, Barbara
E. Bergman, Mary Price, Peter Goldberger, Sarah Gannett, and Daniel
L. Kaplan.
Cite as: 585 U. S. 129 (2018) 133
Opinion of the Court
tence that is “suffcient, but not greater than necessary,” 18
U. S. C. § 3553(a), to achieve the overarching sentencing
purposes of “retribution, deterrence, incapacitation, and rehabilitation.”
Tapia v. United States, 564 U. S. 319, 325
(2011); 18 U. S. C. §§ 3551(a), 3553(a)(2). Those decisions call
for the district court to exercise discretion. Yet, to ensure
“ `certainty and fairness' ” in sentencing, district courts must
operate within the framework established by Congress.
United States v. Booker, 543 U. S. 220, 264 (2005) (quoting 28
U. S. C. § 991(b)(1)(B)).
The Sentencing Guidelines serve an important role in that
framework. “ `[D]istrict courts must begin their analysis
with the Guidelines and remain cognizant of them throughout
the sentencing process.' ” Peugh v. United States, 569
U. S. 530, 541 (2013) (quoting Gall v. United States, 552 U. S.
38, 50, n. 6 (2007); emphasis in Peugh). Courts are not
bound by the Guidelines, but even in an advisory capacity the
Guidelines serve as “a meaningful benchmark” in the initial
determination of a sentence and “through the process of appellate
review.” 569 U. S., at 541.
Of course, to consult the applicable Guidelines range, a
district court must frst determine what that range is.
This can be a “complex” undertaking. Molina-Martinez v.
United States, 578 U. S. 189, 193 (2016). The United States
Probation Offce, operating as an arm of the district court,
frst creates a presentence investigation report, “which includes
a calculation of the advisory Guidelines range it considers
to be applicable.” Ibid.; see Fed. Rules Crim. Proc.
32(c)(1)(A), (d)(1); United States Sentencing Commission,
Guidelines Manual § 1B1.1(a) (Nov. 2016) (USSG). That calculation
derives from an assessment of the “offense characteristics,
offender characteristics, and other matters
that might be relevant to the sentence.” Rita v. United
States, 551 U. S. 338, 342 (2007) (internal quotation marks
omitted). Specifcally, an offense level is calculated by identifying
a base level for the offense of conviction and adjusting
134 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
that level to account for circumstances specifc to the defendant's
case, such as how the crime was committed and
whether the defendant accepted responsibility. See USSG
§§ 1B1.1(a)(1)–(5). A numerical value is then attributed to
any prior offenses committed by the defendant, which are
added together to generate a criminal history score that
places the defendant within a particular criminal history category.
§§ 1B1.1(a)(6), 4A1.1. Together, the offense level
and the criminal history category identify the applicable
Guidelines range. § 1B1.1(a)(7).
B
The district court has the ultimate responsibility to ensure
that the Guidelines range it considers is correct, and the
“[f]ailure to calculate the correct Guidelines range constitutes
procedural error.” Peugh, 569 U. S., at 537. Given
the complexity of the calculation, however, district courts
sometimes make mistakes. It is unsurprising, then, that
“there will be instances when a district court's sentencing of
a defendant within the framework of an incorrect Guidelines
range goes unnoticed” by the parties as well, which may result
in a defendant raising the error for the frst time on
appeal. Molina-Martinez, 578 U. S., at 193–194. Those defendants
are not entirely without recourse.
Federal Rule of Criminal Procedure 52(b) provides that
“[a] plain error that affects substantial rights may be considered
even though it was not brought to the [district] court's
attention.” In United States v. Olano, 507 U. S. 725 (1993),
the Court established three conditions that must be met before
a court may consider exercising its discretion to correct
the error. “First, there must be an error that has not been
intentionally relinquished or abandoned. Second, the error
must be plain—that is to say, clear or obvious. Third, the
error must have affected the defendant's substantial rights.”
Molina-Martinez, 578 U. S., at 194 (citations omitted). To
satisfy this third condition, the defendant ordinarily must
“ `show a reasonable probability that, but for the error,' the
Cite as: 585 U. S. 129 (2018) 135
Opinion of the Court
outcome of the proceeding would have been different.”
Ibid. (quoting United States v. Dominguez Benitez, 542 U. S.
74, 76, 83 (2004)). Once those three conditions have been
met, “the court of appeals should exercise its discretion to
correct the forfeited error if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Molina-Martinez, 578 U. S., at 194 (internal quotation
marks omitted). It is this last consideration, often
called Olano's fourth prong, that we are asked to clarify and
apply in this case.
C
Petitioner Florencio Rosales-Mireles pleaded guilty to illegal
reentry in violation of 8 U. S. C. §§ 1326(a), (b)(2). The
Probation Offce in its presentence investigation report mistakenly
counted a 2009 state conviction of misdemeanor
assault twice. This double counting resulted in a criminal
history score of 13, which placed Rosales-Mireles in criminal
history category VI. Combined with his offense level of 21,
that yielded a Guidelines range of 77 to 96 months. Had
the criminal history score been calculated correctly, Rosales-
Mireles would have been in criminal history category V, and
the resulting Guidelines range would have been 70 to 87
months. See USSG ch. 5, pt. A (sentencing table).
Rosales-Mireles did not object to the double-counting
error before the District Court. Relying on the erroneous
presentence investigation report, and after denying Rosales-
Mireles' request for a downward departure, the District
Court sentenced Rosales-Mireles to 78 months of imprisonment,
one month above the lower end of the Guidelines range
that everyone thought applied.
On appeal, Rosales-Mireles argued for the frst time that
his criminal history score and the resulting Guidelines range
were incorrect because of the double counting of his 2009
conviction. Because he had not objected in the District
Court, the Court of Appeals for the Fifth Circuit reviewed
for plain error. 850 F. 3d 246, 248 (2017).
136 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
Applying the Olano framework, the Fifth Circuit concluded
that Rosales-Mireles had established that the Guidelines
miscalculation constituted an error that was plain, satisfying
Olano's frst two conditions. It also held that the
error affected Rosales-Mireles' substantial rights, thus satisfying
the third condition, because there was “a reasonable
probability that he would have been subject to a different
sentence but for the error.” 850 F. 3d, at 249. In reaching
that conclusion, the Fifth Circuit rejected the Government's
argument that Rosales-Mireles would have received the
same sentence regardless of the Guidelines error, because
the District Court had denied a downward departure “based,
in part, on Rosales-Mireles' criminal history,” which “erroneously
included an extra conviction.” Ibid.
The Fifth Circuit nevertheless declined to exercise its discretion
to vacate and remand the case for resentencing because
it concluded that Rosales-Mireles failed to establish
that the error would seriously affect the fairness, integrity,
or public reputation of judicial proceedings. In its view,
“the types of errors that warrant reversal are ones that
would shock the conscience of the common man, serve as a
powerful indictment against our system of justice, or seriously
call into question the competence or integrity of the
district judge.” Id., at 250 (internal quotation marks and
alterations omitted). Because Rosales-Mireles' sentence of
78 months fell within the correct range of 70 to 87 months,
the Fifth Circuit held that neither the error nor the resulting
sentence “would shock the conscience.” Ibid.
The Fifth Circuit's articulation of Olano's fourth prong is
out of step with the practice of other Circuits.1 We granted
1 Compare 850 F. 3d 246, 250 (CA5 2017), with United States v. Dahl,
833 F. 3d 345, 357, 359 (CA3 2016); United States v. Figueroa-Ocasio, 805
F. 3d 360, 367–368, 373–374 (CA1 2015); United States v. Sabillon-Umana,
772 F. 3d 1328, 1333–1334 (CA10 2014) (Gorsuch, J.); United States v.
Joseph, 716 F. 3d 1273, 1281 (CA9 2013); United States v. Garrett, 528 F. 3d
525, 527, 529–530 (CA7 2008).
Cite as: 585 U. S. 129 (2018) 137
Opinion of the Court
certiorari to resolve that confict, 582 U. S. 967 (2017), and
now reverse.
II
A
Although “Rule 52(b) is permissive, not mandatory, ”
Olano, 507 U. S., at 735, it is well established that courts
“should” correct a forfeited plain error that affects substantial
rights “if the error `seriously affects the fairness, integrity
or public reputation of judicial proceedings.' ” Id., at
736 (quoting United States v. Atkinson, 297 U. S. 157, 160
(1936); alteration omitted); see also Molina-Martinez, 578
U. S., at 194–195. The Court in Olano rejected a narrower
rule that would have called for relief only “ ` “in those circumstances
in which a miscarriage of justice would otherwise
result,” ' ” that is to say, where a defendant is actually innocent.
507 U. S., at 736 (quoting United States v. Young, 470
U. S. 1, 15 (1985)). By focusing instead on principles of fairness,
integrity, and public reputation, the Court recognized
a broader category of errors that warrant correction on
plain-error review. See 507 U. S., at 736–737.
Like the miscarriage-of-justice rule that the Court rejected
in Olano, the Fifth Circuit's standard is unduly restrictive.
To be sure, a conclusion that an error “shock[s]
the conscience of the common man, serve[s] as a powerful
indictment against our system of justice, or seriously call[s]
into question the competence or integrity of the district
judge,” 850 F. 3d, at 250 (internal quotation marks omitted),
would demand an exercise of discretion to correct the error.
Limiting relief only to those circumstances, however, too
narrowly confnes the extent of a court of appeals' discretion.
The “shock the conscience” standard typically is employed
when determining whether governmental action violates due
process rights under the Fifth and Fourteenth Amendments.
See County of Sacramento v. Lewis, 523 U. S. 833, 848, n. 8
(1998) (“[I]n a due process challenge to executive action, the
138 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
threshold question is whether the behavior of the governmental
offcer is so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience”). This
Court has said that the “shock the conscience” standard is
satisfed where the conduct was “intended to injure in some
way unjustifable by any government interest,” or in some
circumstances if it resulted from deliberate indifference.
Id., at 849–850.
That standard is not refected in Rule 52(b) itself, nor in
how this Court has applied the plain-error doctrine. The
Court repeatedly has reversed judgments for plain error on
the basis of inadvertent or unintentional errors of the court
or the parties below. See, e. g., Silber v. United States, 370
U. S. 717, 717–718 (1962) (per curiam) (reversing judgment
for plain error as a result of insuffcient indictment); Brasfeld
v. United States, 272 U. S. 448, 449–450 (1926) (reversing
judgment for plain error where the trial judge improperly
inquired of a jury's numerical division); Clyatt v. United
States, 197 U. S. 207, 222 (1905) (reversing judgment for plain
error where the Government presented insuffcient evidence
to sustain conviction). The Court also “routinely remands”
cases involving inadvertent or unintentional errors, including
sentencing errors, for consideration of Olano's fourth
prong with the understanding that such errors may qualify
for relief. Hicks v. United States, 582 U. S. 924 (2017) (Gorsuch,
J., concurring).
The Fifth Circuit's additional focus on errors that “serve
as a powerful indictment against our system of justice, or
seriously call into question the competence or integrity of
the district judge,” 850 F. 3d, at 250 (internal quotation
marks omitted), similarly alters the Rule 52(b) standard.
The Court has never said that errors must amount to a “powerful
indictment” of the system, a phrase which implies by
its terms that the only errors worthy of correction are those
that rise to the level of grossly serious misconduct. SimiCite
as: 585 U. S. 129 (2018) 139
Opinion of the Court
larly, the Fifth Circuit's emphasis on the “competence or integrity
of the district judge” narrows Olano's instruction
that an error should be corrected if it seriously affects “judicial
proceedings.” In articulating such a high standard, the
Fifth Circuit substantially changed Olano's fourth prong.
B
The effect of the Fifth Circuit's heightened standard is especially
pronounced in a case like this one. A plain Guidelines
error that affects a defendant's substantial rights is precisely
the type of error that ordinarily warrants relief under
Rule 52(b).
In Molina-Martinez, the Court recognized that “[w]hen a
defendant is sentenced under an incorrect Guidelines
range—whether or not the defendant's ultimate sentence
falls within the correct range—the error itself can, and most
often will, be suffcient to show a reasonable probability of a
different outcome absent the error.” 578 U. S., at 198. In
other words, an error resulting in a higher range than the
Guidelines provide usually establishes a reasonable probability
that a defendant will serve a prison sentence that is more
than “necessary” to fulfll the purposes of incarceration. 18
U. S. C. § 3553(a); Tapia, 564 U. S., at 325. “To a prisoner,”
this prospect of additional “time behind bars is not some
theoretical or mathematical concept.” Barber v. Thomas,
560 U. S. 474, 504 (2010) (Kennedy, J., dissenting). “[A]ny
amount of actual jail time” is signifcant, Glover v. United
States, 531 U. S. 198, 203 (2001), and “ha[s] exceptionally severe
consequences for the incarcerated individual [and] for
society which bears the direct and indirect costs of incarceration,”
United States v. Jenkins, 854 F. 3d 181, 192 (CA2
2017). The possibility of additional jail time thus warrants
serious consideration in a determination whether to exercise
discretion under Rule 52(b). It is crucial in maintaining
public perception of fairness and integrity in the justice sys140
ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
tem that courts exhibit regard for fundamental rights and
respect for prisoners “as people.” T. Tyler, Why People
Obey the Law 164 (2006).
The risk of unnecessary deprivation of liberty particularly
undermines the fairness, integrity, or public reputation of
judicial proceedings in the context of a plain Guidelines error
because of the role the district court plays in calculating the
range and the relative ease of correcting the error. Unlike
“case[s] where trial strategies, in retrospect, might be criticized
for leading to a harsher sentence,” Guidelines miscalculations
ultimately result from judicial error. Glover, 531
U. S., at 204; see also Peugh, 569 U. S., at 537. That was
especially so here where the District Court's error in imposing
Rosales-Mireles' sentence was based on a mistake made
in the presentence investigation report by the Probation Offce,
which works on behalf of the District Court. Moreover,
“a remand for resentencing, while not costless, does not invoke
the same diffculties as a remand for retrial does.”
Molina-Martinez, 578 U. S., at 204 (internal quotation marks
omitted). “A resentencing is a brief event, normally taking
less than a day and requiring the attendance of only the defendant,
counsel, and court personnel.” United States v.
Williams, 399 F. 3d 450, 456 (CA2 2005).
Ensuring the accuracy of Guidelines determinations also
serves the purpose of “providing certainty and fairness in
sentencing” on a greater scale. 28 U. S. C. § 994(f); see also
§ 991(b)(1)(B); Booker, 543 U. S., at 264. The Guidelines assist
federal courts across the country in achieving uniformity
and proportionality in sentencing. See Rita, 551 U. S., at
349. To realize those goals, it is important that sentencing
proceedings actually refect the nature of the offense and
criminal history of the defendant, because the United States
Sentencing Commission relies on data developed during sentencing
proceedings, including information in the presentence
investigation report, to determine whether revisions
to the Guidelines are necessary. See id., at 350. When senCite
as: 585 U. S. 129 (2018) 141
Opinion of the Court
tences based on incorrect Guidelines ranges go uncorrected,
the Commission's ability to make appropriate amendments
is undermined.2
In broad strokes, the public legitimacy of our justice system
relies on procedures that are “neutral, accurate, consistent,
trustworthy, and fair,” and that “provide opportunities
for error correction.” Bowers & Robinson, Perceptions
of Fairness and Justice: The Shared Aims and Occasional
Conficts of Legitimacy and Moral Credibility, 47 Wake Forest
L. Rev. 211, 215–216 (2012). In considering claims like
Rosales-Mireles', then, “what reasonable citizen wouldn't
bear a rightly diminished view of the judicial process and its
integrity if courts refused to correct obvious errors of their
own devise that threaten to require individuals to linger
longer in federal prison than the law demands?” United
States v. Sabillon-Umana, 772 F. 3d 1328, 1333–1334 (CA10
2014) (Gorsuch, J.). In the context of a plain Guidelines
error that affects substantial rights, that diminished view of
the proceedings ordinarily will satisfy Olano's fourth prong,
as it does in this case.3 As the Fifth Circuit itself concluded,
there is a reasonable probability that, without correction of
2 Similarly, the work of the Federal Bureau of Prisons is hindered by
uncorrected Guidelines errors, because the Bureau relies, in part, on aspects
of the Guidelines calculation in designating and classifying prisoners
based on security and program needs. See Federal Bureau of Prisons,
Program Statement No. P5100.08, Subject: Inmate Security Designation
and Custody Classifcation, ch. 2, p. 1, ch. 4, p. 8, ch. 6, p. 5 (Sept. 12, 2006).
3 The dissent maintains that “adhering to procedure” does not have
“prime importance for purposes of the fourth prong” because the Court
has held in some instances, where the error was not likely to have affected
the substantive outcome, that the procedural error alone did not satisfy
Olano's fourth prong. Post, at 151–152 (opinion of Thomas, J.) (citing
Johnson v. United States, 520 U. S. 461 (1997); United States v. Cotton,
535 U. S. 625 (2002); United States v. Marcus, 560 U. S. 258 (2010)). The
cases on which the dissent relies do not stand for the view, however, that
procedural errors are unimportant or could never satisfy Olano's fourth
prong, especially where, as here, the defendant has shown a likelihood that
the error affected the substantive outcome.
142 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
the Guidelines error, Rosales-Mireles will spend more time
in prison than the District Court otherwise would have
considered necessary. 850 F. 3d, at 249. That error was
based on a mistake by the Probation Offce, a mistake that
can be remedied through a relatively inexpensive resentencing
proceeding.
Of course, any exercise of discretion at the fourth prong of
Olano inherently requires “a case-specifc and fact-intensive”
inquiry. Puckett v. United States, 556 U. S. 129, 142 (2009);
see also Young, 470 U. S., at 16–17, n. 14. There may be
instances where countervailing factors satisfy the court of
appeals that the fairness, integrity, and public reputation of
the proceedings will be preserved absent correction. But
on the facts of this case, there are no such factors.4
III
The United States and the dissent agree with Rosales-
Mireles that the Fifth Circuit's formulation of the standard
for the exercise of discretion under Rule 52(b) “is an inaccurate
description” of Olano's fourth prong. Brief for United
States 34; post, at 146, n. 1 (opinion of Thomas, J.) (“[T]he
Fifth Circuit's standard is higher than the one articulated in
this Court's precedents”). They nevertheless maintain that
Rosales-Mireles is not entitled to relief. We are unpersuaded,
though a few points merit brief discussion.
First, the United States and the dissent caution that a
grant of relief in Rosales-Mireles' case and in others like his
would be inconsistent with the Court's statements that discretion
under Rule 52(b) should be exercised “sparingly,”
Jones v. United States, 527 U. S. 373, 389 (1999), and reserved
4 As the dissent points out, post, at 153, a defendant bears the “burden
to persuade the court that the error seriously affect[ed] the fairness, integrity
or public reputation of judicial proceedings.” United States v. Vonn,
535 U. S. 55, 63 (2002) (internal quotation marks omitted). In the ordinary
case, proof of a plain Guidelines error that affects the defendant's
substantial rights is suffcient to meet that burden.
Cite as: 585 U. S. 129 (2018) 143
Opinion of the Court
for “exceptional circumstances,” Atkinson, 297 U. S., at 160.
As an initial matter, Jones and the cases it relies on for the
point that discretion should be exercised “sparingly” would
have required additional jury proceedings on remand, either
at resentencing or retrial. See 527 U. S., at 384, 389; see
also Young, 470 U. S. 1; United States v. Frady, 456 U. S. 152
(1982); Henderson v. Kibbe, 431 U. S. 145 (1977). As we have
explained, a decision remanding a case to the district court
for resentencing on the basis of a Guidelines miscalculation
is far less burdensome than a retrial, or other jury proceedings,
and thus does not demand such a high degree of caution.
In any event, the circumstances surrounding Rosales-
Mireles' case are exceptional within the meaning of the
Court's precedent on plain-error review, as they are reasonably
likely to have resulted in a longer prison sentence than
necessary and there are no countervailing factors that otherwise
further the fairness, integrity, or public reputation of
judicial proceedings. The fact that, as a result of the Court's
holding, most defendants in Rosales-Mireles' situation will
be eligible for relief under Rule 52(b) does not justify a decision
that ignores the harmful effects of allowing the error
to persist.
Second, the United States and the dissent assert that, because
Rosales-Mireles' sentence falls within the corrected
Guidelines range, the sentence is presumptively reasonable
and “less likely to indicate a serious injury to the fairness,
integrity, or public reputation of judicial proceedings. ”
Brief for United States 20–21; see also post, at 154. A substantive
reasonableness determination, however, is an entirely
separate inquiry from whether an error warrants
correction under plain-error review.
Before a court of appeals can consider the substantive reasonableness
of a sentence, “[i]t must frst ensure that the
district court committed no signifcant procedural error, such
as failing to calculate (or improperly calculating) the Guidelines
range.” Gall, 552 U. S., at 51. This makes eminent
144 ROSALES-MIRELES v. UNITED STATES
Opinion of the Court
sense, for the district court is charged in the frst instance
with determining whether, taking all sentencing factors into
consideration, including the correct Guidelines range, a sentence
is “suffcient, but not greater than necessary.” 18
U. S. C. § 3553(a). If the district court is unable properly
to undertake that inquiry because of an error in the Guidelines
range, the resulting sentence no longer bears the reliability
that would support a “presumption of reasonableness”
on review. See Gall, 552 U. S., at 51. Likewise, regardless
of its ultimate reasonableness, a sentence that lacks reliability
because of unjust procedures may well undermine public
perception of the proceedings. See Hollander-Blumoff, The
Psychology of Procedural Justice in the Federal Courts, 63
Hastings L. J. 127, 132–134 (2011) (compilation of psychology
research showing that the fairness of procedures infuences
perceptions of outcomes). The mere fact that Rosales-
Mireles' sentence falls within the corrected Guidelines range
does not preserve the fairness, integrity, or public reputation
of the proceedings.5
Third, the United States and the dissent contend that our
decision “creates the very opportunity for `sandbagging' that
Rule 52(b) is supposed to prevent.” Post, at 149; Brief for
United States 17–18, 27. But that concern fails to account
for the realities at play in sentencing proceedings. As this
Court repeatedly has explained, “the Guidelines are `the
starting point for every sentencing calculation in the federal
system,' ” Hughes v. United States, 584 U. S. 675, 686 (2018)
(quoting Peugh, 569 U. S., at 542). It is hard to imagine that
defense counsel would “deliberately forgo objection now” to
5 The dissent's discussion of Rosales-Mireles' criminal history, post, at
153–154, misses the point. That history is relevant to the District Court's
determination of an appropriate sentence under 18 U. S. C. § 3553(a). It
does not help explain whether the plain procedural error in Rosales-
Mireles' sentencing proceedings, which may have resulted in a longer sentence
than is justifed in light of that history, seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
Cite as: 585 U. S. 129 (2018) 145
Thomas, J., dissenting
a plain Guidelines error that would subject her client to a
higher Guidelines range, “because [counsel] perceives some
slightly expanded chance to argue for `plain error' later.”
Henderson v. United States, 568 U. S. 266, 276 (2013) (emphasis
in original). Even setting aside the confict such a strategy
would create with defense counsel's ethical obligations
to represent her client vigorously and her duty of candor
toward the court, any beneft from such a strategy is highly
speculative. There is no guarantee that a court of appeals
would agree to a remand, and no basis to believe that a district
court would impose a lower sentence upon resentencing
than the court would have imposed at the original sentencing
proceedings had it been aware of the plain Guidelines error.
IV
For the foregoing reasons, we conclude that the Fifth Circuit
abused its discretion in applying an unduly burdensome
articulation of Olano's fourth prong and declining to remand
Rosales-Mireles' case for resentencing. In the ordinary
case, as here, the failure to correct a plain Guidelines error
that affects a defendant's substantial rights will seriously affect
the fairness, integrity, and public reputation of judicial
proceedings. The judgment of the Court of Appeals is
therefore reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Alito joins,
dissenting.
The Court holds that, “in the ordinary case,” a miscalculation
of the advisory Sentencing Guidelines range will “seriously
affect the fairness, integrity, or public reputation of
judicial proceedings.” Ante, at 132. In other words, a defendant
who does not alert the district court to a plain miscalculation
of his Guidelines range—and is not happy with
146 ROSALES-MIRELES v. UNITED STATES
Thomas, J., dissenting
the sentence he receives—can raise the Guidelines error for
the frst time on appeal and ordinarily get another shot at a
more favorable sentence. The Court's decision goes far beyond
what was necessary to answer the question presented.1
And it contravenes long-established principles of plain-error
review. I respectfully dissent.
I
Under Federal Rule of Criminal Procedure 52(b), “[a] plain
error that affects substantial rights may be considered even
though it was not brought to the court's attention.” (Emphasis
added.) The “point of the plain-error rule” is to “requir[
e] defense counsel to be on his toes.” United States v.
Vonn, 535 U. S. 55, 73 (2002). Its demanding standard is
meant to “encourage timely objections and reduce wasteful
reversals by demanding strenuous exertion to get relief for
unpreserved error.” United States v. Dominguez Benitez,
542 U. S. 74, 82 (2004). If the standard were not stringent,
there would be nothing “prevent[ing] a litigant from ` “sandbagging”
' the court—remaining silent about his objection
and belatedly raising the error only if the case does not conclude
in his favor.” Puckett v. United States, 556 U. S. 129,
134 (2009). Satisfying the plain-error standard “is diffcult,
`as it should be.' ” Id., at 135.
This Court has held that Rule 52(b) is satisfed only when
four requirements are met: “(1) there is `an error,' (2) the
error is `plain,' ” “(3) the error `affect[s] substantial rights,' ”
and “(4) . . . `the error “seriously affect[s] the fairness, integ-
1 We granted certiorari to decide whether “the fourth prong of plain
error review [demands], as the Fifth Circuit Court of Appeals required,
that the error be one that `would shock the conscience of the common man,
serve as a powerful indictment against our system of justice, or seriously
call into question the competence or integrity of the district judge.' ” Pet.
for Cert. i; 582 U. S. 967 (2017). Although I doubt it changed the outcome
in any case, I agree that the Fifth Circuit's standard is higher than the one
articulated in this Court's precedents—at least to the extent it requires
an uncorrected error to “shock the conscience.” See ante, at 136–138.
Cite as: 585 U. S. 129 (2018) 147
Thomas, J., dissenting
rity or public reputation of judicial proceedings.” ' ” Henderson
v. United States, 568 U. S. 266, 272 (2013). The
fourth requirement—the one at issue here—is discretionary.
Ibid. It should “be applied on a case-specifc and factintensive
basis.” Puckett, supra, at 142. And it cannot be
satisfed by “a plain error affecting substantial rights . . . ,
without more, . . . for otherwise the discretion afforded by
Rule 52(b) would be illusory.” United States v. Olano, 507
U. S. 725, 737 (1993). Instead, “only `particularly egregious
errors' ” will meet the fourth prong's rigorous standard.
United States v. Young, 470 U. S. 1, 15 (1985) (quoting United
States v. Frady, 456 U. S. 152, 163 (1982)); see also United
States v. Atkinson, 297 U. S. 157, 160 (1936) (explaining that
courts should provide relief under plain-error review only in
“exceptional circumstances”).
II
The Court holds that Guidelines errors will “ordinar[ily]”
satisfy the fourth prong of plain-error review. Ante, at 145.
This result contravenes several established principles from
our precedents.
To begin, the Court's decision is at odds with the principle
that the fourth prong of plain-error review “be applied on a
case-specifc and fact-intensive basis.” Puckett, supra, at
142. By holding that a Guidelines error “ordinarily will satisfy
[the] fourth prong” absent “countervailing factors,” ante,
at 141–142, the Court creates what is essentially a rebuttable
presumption that plain Guidelines errors satisfy Rule 52(b).
And, based on the Court's application of it today, this presumption
certainly must be diffcult to rebut. The Court
matter-of-factly asserts, in a single sentence with no analysis,
that “there are no [countervailing] factors” in this case
that counsel in favor of affrmance. Ante, at 142. It does so
without even discussing the particular details of the defendant's
crime, what happened at his sentencing, the reasoning
that the District Court employed, the difference between the
148 ROSALES-MIRELES v. UNITED STATES
Thomas, J., dissenting
defendant's calculated Guidelines range and the correct one,
or where his sentence fell relative to the correct Guidelines
range. This approach is neither “case-specifc” nor “factintensive.”
Puckett, supra, at 142. The Court candidly admits
as much. See ante, at 142, n. 4. But this is exactly
the kind of “ `per se approach to plain-error review' ” that we
have consistently rejected. Puckett, supra, at 142.
The Court's rebuttable presumption also renders the
fourth prong of plain-error review “illusory” in most Guidelines
cases. Olano, supra, at 737. The Court expressly
states that Guidelines errors will satisfy the fourth prong
in “the ordinary case.” Ante, at 145. But this Court has
repeatedly held that the fourth prong limits courts' discretion
to “correct[ing] only `particularly egregious errors.' ”
Young, supra, at 15. Because Rule 52(b) “ `is not a run-ofthe-
mill remedy,' ” Frady, supra, at 163, n. 14, relief should
be granted “sparingly” in “ `the rare case,' ” Jones v. United
States, 527 U. S. 373, 389 (1999), and only in “exceptional circumstances,”
Atkinson, supra, at 160. Today's decision
turns that principle on its head by making relief available
“in the ordinary case.” Ante, at 132.
The Court asserts that relief under plain-error review
need not be exceptional or rare when a remand would not
require “additional jury proceedings.” Ante, at 143. But
that distinction has no basis in the text of Rule 52(b) or this
Court's precedents. The only Rule 52(b) precedent that the
Court cites for this assertion is Molina-Martinez v. United
States, 578 U. S. 189, 204 (2016). See ante, at 140. That
decision rejected the Fifth Circuit's categorical rule requiring
defendants to present “additional evidence” (beyond the
Guidelines error itself) to prove prejudice under the third
prong of plain-error review. See 578 U. S., at 197. In dicta
it suggested that, “in the ordinary case,” the Guidelines
error would be enough to satisfy the third prong's requirement
that the error affect substantial rights. Id., at 204.
And it rebuffed the Government's pragmatic “concern over
Cite as: 585 U. S. 129 (2018) 149
Thomas, J., dissenting
the judicial resources needed” if Guidelines errors usually
satisfy the third prong of plain-error review. Id., at 203.
But Molina-Martinez did not discuss the fourth prong of
plain-error review, which is at issue here and is an independent
requirement, see Olano, supra, at 737. Nor did it relax
the plain-error standard whenever reversal would not require
“additional jury proceedings.” Ante, at 143. Thus,
Molina-Martinez gives no support to the Court's innovation.
Additionally, the Court's encouragement of remands based
on ordinary Guidelines errors undermines “the policies that
underpin Rule 52(b).” Dominguez Benitez, 542 U. S., at 82.
As explained, the plain-error standard encourages defendants
to make timely objections in order to avoid sandbagging
and to prevent wasteful reversals and remands. After
today, however, most defendants who fail to object to a
Guidelines error will be in virtually the same position as
those who do. Today's decision, especially when combined
with Molina-Martinez, means that plain Guidelines errors
will satisfy Rule 52(b) in all but the unusual case. That creates
the very opportunity for “sandbagging” that Rule 52(b)
is supposed to prevent, Puckett, 556 U. S., at 134 (internal
quotation marks omitted), by allowing a defendant who is
aware of a mistake in the presentence report to “simply relax
and wait to see if the sentence later str[ikes] him as satisfactory,”
Vonn, 535 U. S., at 73. Oddly, defendants who do not
object to a Guidelines error could be in a better position than
ones who do. An objection would give the district court a
chance to explain why it would “arrive at the same sentencing
conclusion” even if the defendant was correct about an
alleged Guidelines error, which would “mak[e] clear” that the
Guidelines error did not “adversely affect the defendant's ultimate
sentence.” United States v. Sabillon-Umana, 772
F. 3d 1328, 1334 (CA10 2014). Today's decision thus inverts
Rule 52(b) by giving defendants an incentive to withhold
timely objections and “ `game' the system.” Puckett, supra,
at 140.
150 ROSALES-MIRELES v. UNITED STATES
Thomas, J., dissenting
III
Even if it were appropriate to create rebuttable presumptions
under the fourth prong of plain-error review, the Court
is wrong to conclude that the “ordinary” Guidelines error
will “seriously affect the fairness, integrity, or public reputation
of judicial proceedings.” Ante, at 132. Whether a district
court's failure to correctly calculate the advisory Guidelines
range satisfes the fourth prong of plain-error review
will depend on the circumstances of each case. And the circumstances
of this case prove the folly of the Court's
presumption.
A
The Court asserts that plain Guidelines errors must ordinarily
be corrected to ensure that defendants do not “linger
longer in federal prison than the law demands.” Ante, at 141
(internal quotation marks omitted). But the Guidelines are
not “law.” They neither “defne criminal offenses” nor “fx
the permissible sentences for criminal offenses.” Beckles v.
United States, 580 U. S. 256, 262 (2017) (emphasis deleted).
Instead, they are purely “advisory” and “merely guide the
district courts' discretion.” Id., at 265. They provide advice
about what sentencing range the Sentencing Commission
believes is appropriate, “but they `do not constrain' ”
district courts. Ibid. Accordingly, district courts are free
to disagree with the Guidelines range, for reasons as simple
as a policy disagreement with the Sentencing Commission.
See Pepper v. United States, 562 U. S. 476, 501 (2011); 18
U. S. C. § 3661. In fact, district courts commit reversible
error if they “trea[t] the Guidelines as mandatory.” Gall v.
United States, 552 U. S. 38, 51 (2007). Although the Guidelines
range is one of the factors that courts must consider
at sentencing, 18 U. S. C. § 3553(a), judges need not give the
Guidelines range any particular weight. The only thing that
“the law demands” is that a defendant's sentence be substantively
reasonable and within the applicable statutory range.
Cite as: 585 U. S. 129 (2018) 151
Thomas, J., dissenting
See Jones v. United States, 574 U. S. 948, 948–950 (2014)
(Scalia, J., dissenting from denial of certiorari); Kimbrough
v. United States, 552 U. S. 85, 113–114 (2007) (Scalia, J.,
concurring).
The Court also justifes its presumption by repeatedly
stressing the importance of procedural rules to the public's
perception of judicial proceedings. See ante, at 141 (“[T]he
public legitimacy of our justice system relies on procedures”);
ante, at 144 (“[U]njust procedures may well undermine
public perception of [sentencing] proceedings”). It
even cites a hodgepodge of psychological studies on procedural
justice. Ibid. (citing Hollander-Blumoff, The Psychology
of Procedural Justice in the Federal Courts, 63 Hastings
L. J. 127, 132–134 (2011) (Hollander-Blumoff)).
Putting aside the obvious problems with this research,2
the Court contradicts our precedents by suggesting that adhering
to procedure has prime importance for purposes of
the fourth prong. This Court has repeatedly concluded that
purely procedural errors—ones that likely did not affect the
2 The article that the Court cites makes broad claims based on limited
research. For instance, the article states that, “[w]hen people feel that
they have received fair treatment, they are more likely to adhere to, accept,
and feel satisfed with a given outcome, and to view the system that
gave rise to that outcome as legitimate.” Hollander-Blumoff 134. But
the only support it provides for that proposition is a telephone survey of
a few hundred Chicago residents. See id., at 134, n. 37 (citing T. Tyler,
Why People Obey the Law 162 (2006)); see also id., at 8–15 (explaining the
study's methodology). The article also draws conclusions about the general
importance of “procedural justice” in court, based on marginally relevant
studies of noncourt settings such as “arbitration and mediation,”
interactions with “police officers” and “work supervisors,” and “highly
relational settings like the family.” See Hollander-Blumoff 132–134.
Crucially, none of this research has any bearing on the far more complicated
question of “procedural justice” at issue here: whether it is presumptively
unfair to penalize a defendant who fails to object to an error until
appeal. The contemporaneous-objection rule, after all, is also a procedural
rule that affects the fairness, integrity, and reputation of judicial
proceedings.
152 ROSALES-MIRELES v. UNITED STATES
Thomas, J., dissenting
substantive outcome—do not satisfy the fourth prong of
plain-error review. In Johnson v. United States, 520 U. S.
461 (1997), for example, the District Court failed to submit a
materiality element to the jury, but this Court found that
the fourth prong of plain-error review was not satisfed because
“the evidence supporting materiality was `overwhelming.'
” Id., at 470. Reversal based on errors that have no
actual “ `effect on the judgment,' ” this Court explained, “ `encourages
litigants to abuse the judicial process and bestirs
the public to ridicule it.' ” Ibid. (quoting R. Traynor, The
Riddle of Harmless Error 50 (1970)). Similarly, in United
States v. Cotton, 535 U. S. 625 (2002), the indictment failed
to allege a fact that increased the statutory maximum, but
the evidence of that fact “was `overwhelming' and `essentially
uncontroverted.' ” Id., at 633. This Court held that
reversing a defendant's sentence based on such a technicality
would be “[t]he real threat . . . to the `fairness, integrity,
and public reputation of judicial proceedings.' ” Id., at 634.
And in United States v. Marcus, 560 U. S. 258 (2010), the
Second Circuit had held that an ex post facto error automatically
satisfes the plain-error standard, “ `no matter how unlikely'
” it was that the jury actually convicted the defendant
based on conduct that predated the statute of conviction.
Id., at 261 (emphasis deleted). In reversing that decision,
this Court emphasized that, “in most circumstances, an error
that does not affect the jury's verdict does not signifcantly
impugn the `fairness,' `integrity,' or `public reputation' of the
judicial process.” Id., at 265–266. Thus, the Court is mistaken
when it asserts that, because Guidelines errors are
procedural mistakes, they are particularly likely to implicate
the fourth prong of plain error.
B
While the Court holds that the ordinary Guidelines error
will satisfy the fourth prong of plain-error review, it admits
that there can be “instances where countervailing factors”
Cite as: 585 U. S. 129 (2018) 153
Thomas, J., dissenting
preclude defendants from satisfying the fourth prong. Ante,
at 142. Because the Court does not question our existing
plain-error precedents, see ante, at 142–143, the burden presumably
remains on defendants to establish that there are
no such countervailing factors, and to persuade the appellate
court that any countervailing factor identifed by the Government
is insuffcient. See Vonn, 535 U. S., at 63 (“[A] defendant
has the further burden to persuade the court that
the error seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings” (internal quotation marks
omitted)); Dominguez Benitez, 542 U. S., at 82 (“[T]he burden
of establishing entitlement to relief for plain error is on
the defendant claiming it”). But the Court does not explain
what the defendant in this case has done to satisfy his
burden.
If this case is an ordinary one, it highlights the folly of the
Court's new rebuttable presumption. Petitioner Florencio
Rosales-Mireles has a penchant for entering this country
illegally and committing violent crimes—especially against
women. A Mexican citizen, Rosales-Mireles entered the
United States illegally in 1997. In 2002, he was convicted
of assault for throwing his girlfriend to the foor of their
apartment and dragging her outside by her hair. In 2009,
he was convicted of aggravated assault with serious bodily
injury and assault causing bodily injury to a family member.3
His convictions stemmed from an altercation in which he attempted
to stab one man and did stab another—once in the
shoulder and twice in the chest. In January 2010, Rosales-
Mireles was removed to Mexico. But that same month he
reentered the United States illegally. In 2015, he was convicted
in Texas state court of assaulting his wife and 14-
3 These assaults occurred in 2001, but Rosales-Mireles was not arrested
for years—apparently because he was going by the name “Emilio Ruiz”
at the time of the assaults. When Rosales-Mireles was eventually arrested
in 2009, he had two outstanding warrants for other assaults of his
wife.
154 ROSALES-MIRELES v. UNITED STATES
Thomas, J., dissenting
year-old son. During the altercation, Rosales-Mireles
grabbed his wife by the hair and punched her in the face
repeatedly.
Most recently, Rosales-Mireles pleaded guilty to illegal reentry.
See 8 U. S. C. §§ 1326(a), (b)(2). The District Court
sentenced him to 78 months in prison, which was within the
Guidelines range he argued for on appeal. See ante, at 135.
In choosing that sentence, the District Court emphasized
that it was “the second time he's come to the courts for being
here illegally”; that he had “attempted to hide in the United
States with multiple aliases, birth dates, [and] Social Security
numbers”; and that his “assaultive behavior” spanned
from “at least . . . 2001 to 2015.” App. 20.
The sentence that Rosales-Mireles received was not only
within both the improperly and properly calculated Guidelines
ranges but also in the bottom half of both possible
ranges. See ante, at 135. If the District Court had used
the proper Guidelines range at his initial sentencing, then
the sentence that it ultimately gave Rosales-Mireles would
have been presumptively reasonable on appeal. See 850
F. 3d 246, 250 (CA5 2017); Rita v. United States, 551 U. S.
338, 347 (2007). And the Fifth Circuit determined that his
sentence was in fact reasonable. See 850 F. 3d, at 250–251.
Leaving that reasonable sentence in place would not “ `seriously
affect the fairness, integrity or public reputation of judicial
proceedings.' ” Young, 470 U. S., at 15. A sentence
that is substantively reasonable is hardly the kind of “particularly
egregious erro[r]” that warrants plain-error relief.
Frady, 456 U. S., at 163.
* * *
Rule 52(b) strikes a “careful balance . . . between judicial
effciency and the redress of injustice.” Puckett, 556 U. S.,
at 135. Because today's decision upsets that balance for
scores of cases involving Guidelines errors, I respectfully
dissent.
OCTOBER TERM, 2017 155
Syllabus
BENISEK et al. v. LAMONE, ADMINISTRATOR,
MARYLAND STATE BOARD OF ELECTIONS,
et al.
appeal from the united states district court for the
district of maryland
No. 17–333. Argued March 28, 2018—Decided June 18, 2018
Appellants (plaintiffs below) are Republican voters who allege that Maryland's
Sixth Congressional District was gerrymandered in 2011 as political
retaliation. In May 2017, six years after the Maryland General Assembly
redrew the Sixth District, appellants moved the District Court
to enjoin Maryland's election offcials from holding congressional elections
under the 2011 map, and they urged the court to enter a preliminary
injunction by August 18 to allow time for the creation of a new
districting map. The District Court denied the motion on August 24—
fnding that plaintiffs had failed to show a likelihood of success on the
merits—and stayed further proceedings pending this Court's disposition
of partisan gerrymandering claims in Gill v. Whitford, ante, p. 48.
Appellants ask this Court to vacate the District Court's order and remand
for further consideration of whether a preliminary injunction is
appropriate.
Held: Under the circumstances here, the District Court's decision to deny
a preliminary injunction was not an abuse of discretion. A preliminary
injunction does not follow as a matter of course from a plaintiff's showing
of a likelihood of success on the merits. A court must also consider,
among other things, whether the movant has shown “that the balance of
equities tips in his favor, and that an injunction is in the public interest.”
Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20.
Here, those considerations tilt against appellants' request. First, a
party requesting a preliminary injunction—in election cases as elsewhere—
must generally show reasonable diligence. Cf. Holmberg v.
Armbrecht, 327 U. S. 392, 396. Here appellants did not seek a preliminary
injunction in the District Court until six years, and three general
elections, after the 2011 map was adopted, and over three years after
they fled their frst complaint. Appellants attribute their delay to a
convoluted case history and discovery delays, but the delay largely arose
from a circumstance within their control: namely, their failure to plead
the claims giving rise to their request for injunctive relief until 2016.
Appellants' unnecessary, years-long delay in seeking injunctive relief
weighed against their request. Second, a due regard for the public in156
BENISEK v. LAMONE
Syllabus
terest in orderly elections supported the District Court's decision. See
Purcell v. Gonzalez, 549 U. S. 1, 4–5. Appellants represented that any
injunctive relief would have to be granted by August 18, 2017, to ensure
the timely completion of a new districting scheme in advance of the
2018 election season. The District Court could not act within that time
constraint, and determined it would be a mistake to adjudicate plaintiffs'
claims in a fuctuating legal environment when this Court's forthcoming
decision in Gill might provide frmer guidance. That determination
was within the sound discretion of the District Court, which could have
reasonably concluded that an injunction would have been against the
public's interest in an orderly electoral process.
266 F. Supp. 3d 799, affrmed.
Michael B. Kimberly argued the cause for appellants.
With him on the briefs was Paul W. Hughes.
Steven M. Sullivan, Solicitor General of Maryland, argued
the cause for appellees. With him on the brief were Brian
E. Frosh, Attorney General of Maryland, Adam D. Snyder,
Deputy Chief of Litigation, and Sarah W. Rice, Jennifer L.
Katz, and Andrea W. Trento, Assistant Attorneys General.*
*Briefs of amici curiae urging reversal were fled for the American
Civil Liberties Union et al. by Theresa J. Lee, T. Alora Thomas, Dale E.
Ho, Cecillia D. Wang, Deborah A. Jeon, David D. Cole, Arthur N. Eisenberg,
Perry M. Grossman, and Samuel Issacharoff; for Bipartisan Current
and Former Members of Congress by Elizabeth B. Wydra, Brianne J.
Gorod, and David H. Gans; for the Brennan Center for Justice at N. Y. U.
School of Law by Vincent Levy, Gregory Dubinsky, Matthew V. H. Noller,
Wendy R. Weiser, Michael C. Li, and Thomas P. Wolf; for Common Cause
by Emmet J. Bondurant, Gregory L. Diskant, and Jonah M. Knobler;
for the International Municipal Lawyers Association et al. by G. Michael
Parsons, Jr., Corey W. Roush, Charles W. Thompson, Jr., and Amanda
Kellar Karras; and for Stephen M. Shapiro by Alan B. Morrison.
Briefs of amici curiae urging affrmance were fled for the State of
Michigan et al. by Bill Schuette, Attorney General of Michigan, and Aaron
D. Lindstrom, Solicitor General, and by the Attorneys General for their
respective States as follows: Leslie Rutledge of Arkansas, Cynthia Coffman
of Colorado, Christopher M. Carr of Georgia, Curtis T. Hill, Jr., of
Indiana, Jeff Landry of Louisiana, Joshua D. Hawley of Missouri, Michael
DeWine of Ohio, Mike Hunter of Oklahoma, Alan Wilson of South Carolina,
Ken Paxton of Texas, and Sean D. Reyes of Utah; for the State of
Wisconsin by Brad D. Schimel, Attorney General of Wisconsin, Misha
Tseytlin, Solicitor General, Kevin M. LeRoy, Deputy Solicitor General,
Cite as: 585 U. S. 155 (2018) 157
Per Curiam
Per Curiam.
This appeal arises from the denial of a motion for a preliminary
injunction in the District Court. Appellants are several
Republican voters, plaintiffs below, who allege that
Maryland's Sixth Congressional District was gerrymandered
in 2011 for the purpose of retaliating against them for their
political views.
In May 2017, six years after the Maryland General Assembly
redrew the Sixth District, plaintiffs moved the District
Court to enjoin Maryland's election offcials from holding
congressional elections under the 2011 map. They asserted
that “extend[ing] this constitutional offense”—i. e., the alleged
gerrymander—“into the 2018 election would be a manifest
and irreparable injury.” Record in No. 1:13–cv–3233,
Doc. 177–1, p. 3. In order to allow time for the creation of
a new districting map, plaintiffs urged the District Court
to enter a preliminary injunction by August 18, 2017. Id.,
at 32.
On August 24, 2017, the District Court denied plaintiffs'
motion and stayed further proceedings pending this Court's
disposition of partisan gerrymandering claims in Gill v.
Whitford, ante, p. 48. 266 F. Supp. 3d 799. The District
Court found that plaintiffs had failed to show a likelihood
of success on the merits suffcient to warrant a preliminary
injunction. Id., at 808–814. The District Court also held
Amy C. Miller, Assistant Solicitor General, and Brian P. Keenan, Assistant
Attorney General; for Freedom Partners Chamber of Commerce by
Douglas R. Cox and Amir C. Tayrani; and for Sen. Joseph B. Scarnati III
by Jason Torchinsky and Brian S. Paszamant.
Briefs of amici curiae were fled for the Campaign Legal Center et al.
by Paul M. Smith, Ruth M. Greenwood, Nicholas O. Stephanopoulos, and
Allison J. Riggs; for Governor Lawrence Joseph Hogan, Jr., et al. by
James C. Martin, Colin E. Wrabley, M. Patrick Yingling, Brian A. Sutherland,
and Benjamin R. Fliegel; for Judicial Watch, Inc., et al. by Robert
D. Popper, Chris Fedeli, and T. Russell Nobile; for the National Association
for the Advancement of Colored People, Inc., et al. by Kristin Clarke,
Jon Greenbaum, Ezra D. Rosenberg, William V. Custer, Jennifer B.
Dempsey, and Khyla D. Craine; and for Michael Kang by Daniel F. Kolb.
158 BENISEK v. LAMONE
Per Curiam
that it was “in no position to award [p]laintiffs the remedy
they . . . requested on the timetable they . . . demanded.”
Id., at 815. The court explained that, notwithstanding its
“diligence in ruling on the pending preliminary injunction
motion (which has been a priority for each member of this
panel),” plaintiffs' proposed August deadline for injunctive
relief had “already come and gone.” Ibid.
In addition, the District Court emphasized that it was concerned
about “measuring the legality and constitutionality of
any redistricting plan in Maryland . . . according to the
proper legal standard.” Id., at 816. In the District Court's
view, it would be “better equipped to make that legal determination
and to chart a wise course for further proceedings”
after this Court issued a decision in Gill. 266 F. Supp. 3d,
at 816. Plaintiffs ask this Court to vacate the District
Court's order and remand for further consideration of
whether a preliminary injunction is appropriate.
We now note our jurisdiction and review the District
Court's decision for an abuse of discretion, keeping in mind
that a preliminary injunction is “an extraordinary remedy
never awarded as of right.” Winter v. Natural Resources
Defense Council, Inc., 555 U. S. 7, 24 (2008). As a matter of
equitable discretion, a preliminary injunction does not follow
as a matter of course from a plaintiff's showing of a likelihood
of success on the merits. See id., at 32. Rather, a court
must also consider whether the movant has shown “that he
is likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.” Id., at 20.
Plaintiffs made no such showing below. Even if we
assume—contrary to the fndings of the District Court—that
plaintiffs were likely to succeed on the merits of their claims,
the balance of equities and the public interest tilted against
their request for a preliminary injunction.
Cite as: 585 U. S. 155 (2018) 159
Per Curiam
First, a party requesting a preliminary injunction must
generally show reasonable diligence. Cf. Holmberg v. Armbrecht,
327 U. S. 392, 396 (1946). That is as true in election
law cases as elsewhere. See Lucas v. Townsend, 486 U. S.
1301, 1305 (1988) (Kennedy, J., in chambers); Fishman v.
Schaffer, 429 U. S. 1325, 1330 (1976) (Marshall, J., in chambers).
In this case, appellants did not move for a preliminary
injunction in the District Court until six years, and
three general elections, after the 2011 map was adopted, and
over three years after the plaintiffs' frst complaint was fled.
Plaintiffs argue that they have nevertheless pursued their
claims diligently, and they attribute their delay in seeking a
preliminary injunction to the “convoluted procedural history
of the case” and the “dogged refusal to cooperate in discovery”
by state offcials. Reply Brief 22. Yet the record suggests
that the delay largely arose from a circumstance within
plaintiffs' control: namely, their failure to plead the claims
giving rise to their request for preliminary injunctive relief
until 2016. Although one of the seven plaintiffs before us
fled a complaint in 2013 alleging that Maryland's congressional
map was an unconstitutional gerrymander, that initial
complaint did not present the retaliation theory asserted
here. See Amended Complaint, Doc. 11, p. 3 (Dec. 2, 2013)
(explaining that the gerrymandering claim did not turn upon
“the reason or intent of the legislature” in adopting the map).
It was not until 2016 that the remaining plaintiffs joined
the case and fled an amended complaint alleging that Maryland
offcials intentionally retaliated against them because of
their political views. See 3 App. 640–643. Plaintiffs' newly
presented claims—unlike the gerrymandering claim presented
in the 2013 complaint—required discovery into the
motives of the offcials who produced the 2011 congressional
map. See, e. g., Memorandum of Law in Support of Plaintiffs'
Motion To Compel, Doc. 111–1, p. 3 (Jan. 4, 2017) (describing
plaintiffs' demand that various state offcials “tes160
BENISEK v. LAMONE
Per Curiam
tify . . . and answer questions concerning legislative intent”).
It is true that the assertion of legislative privilege by those
offcials delayed the completion of that discovery. See Joint
Motion To Extend Deadlines for Completion of Fact Discovery
and Expert Witness Disclosures, Doc. 161, pp. 1–2 (Mar.
3, 2017); Joint Motion To Extend Deadlines for Completion
of Fact Discovery and Expert Witness Disclosures, Doc. 170,
pp. 1–2 (Mar. 27, 2017). But that does not change the fact
that plaintiffs could have sought a preliminary injunction
much earlier. See Fishman, supra, at 1330. In considering
the balance of equities among the parties, we think that
plaintiffs' unnecessary, years-long delay in asking for preliminary
injunctive relief weighed against their request.
Second, a due regard for the public interest in orderly elections
supported the District Court's discretionary decision to
deny a preliminary injunction and to stay the proceedings.
See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam).
Plaintiffs themselves represented to the District Court that
any injunctive relief would have to be granted by August 18,
2017, to ensure the timely completion of a new districting
scheme in advance of the 2018 election season. Despite
the District Court's undisputedly diligent efforts, however,
that date had “already come and gone” by the time the
court ruled on plaintiffs' motion. 266 F. Supp. 3d, at 815.
(Such deadline has also, of course, long since passed for purposes
of entering a preliminary injunction on remand from
this Court.)
On top of this time constraint was the legal uncertainty
surrounding any potential remedy for the plaintiffs' asserted
injury. At the time the District Court made its decision, the
appeal in Gill was pending before this Court. The District
Court recognized that our decision in Gill had the potential
to “shed light on critical questions in this case” and to set
forth a “framework” by which plaintiffs' claims could be
decided and, potentially, remedied. 266 F. Supp. 3d, at 815–
816. In the District Court's view, “charging ahead” and adCite
as: 585 U. S. 155 (2018) 161
Per Curiam
judicating the plaintiffs' claims in that fuctuating legal environment,
when frmer guidance from this Court might have
been forthcoming, would have been a mistake. Id., at 816.
Such a determination was within the sound discretion of the
District Court. Given the District Court's decision to wait
for this Court's ruling in Gill before further adjudicating
plaintiffs' claims, the court reasonably could have concluded
that a preliminary injunction would have been against the
public interest, as an injunction might have worked a needlessly
“chaotic and disruptive effect upon the electoral process,”
Fishman, supra, at 1330, and because the “purpose of
a preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be
held,” University of Tex. v. Camenisch, 451 U. S. 390, 395
(1981). In these particular circumstances, we conclude that
the District Court's decision denying a preliminary injunction
cannot be regarded as an abuse of discretion.
The order of the District Court is
Affrmed.
162 OCTOBER TERM, 2017
Syllabus
SOUTH DAKOTA v. WAYFAIR, INC., et al.
certiorari to the supreme court of south dakota
No. 17–494. Argued April 17, 2018—Decided June 21, 2018
South Dakota, like many States, taxes the retail sales of goods and services
in the State. Sellers are required to collect and remit the tax to
the State, but if they do not then in-state consumers are responsible for
paying a use tax at the same rate. Under National Bellas Hess, Inc.
v. Department of Revenue of Ill., 386 U. S. 753, and Quill Corp. v. North
Dakota, 504 U. S. 298, South Dakota may not require a business that
has no physical presence in the State to collect its sales tax. Consumer
compliance rates are notoriously low, however, and it is estimated that
Bellas Hess and Quill cause South Dakota to lose between $48 and $58
million annually. Concerned about the erosion of its sales tax base and
corresponding loss of critical funding for state and local services, the
South Dakota Legislature enacted a law requiring out-of-state sellers
to collect and remit sales tax “as if the seller had a physical presence in
the State.” The Act covers only sellers that, on an annual basis, deliver
more than $100,000 of goods or services into the State or engage in 200
or more separate transactions for the delivery of goods or services into
the State. Respondents, top online retailers with no employees or real
estate in South Dakota, each meet the Act's minimum sales or transactions
requirement, but do not collect the State's sales tax. South Dakota
fled suit in state court, seeking a declaration that the Act's requirements
are valid and applicable to respondents and an injunction
requiring respondents to register for licenses to collect and remit the
sales tax. Respondents sought summary judgment, arguing that the
Act is unconstitutional. The trial court granted their motion. The
State Supreme Court affrmed on the ground that Quill is controlling
precedent.
Held: Because the physical presence rule of Quill is unsound and incorrect,
Quill Corp. v. North Dakota, 504 U. S. 298, and National Bellas
Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753, are overruled.
Pp. 171–189.
(a) An understanding of this Court's Commerce Clause principles and
their application to state taxes is instructive here. Pp. 171–175.
(1) Two primary principles mark the boundaries of a State's authority
to regulate interstate commerce: State regulations may not discriminate
against interstate commerce; and States may not impose undue
burdens on interstate commerce. These principles guide the courts in
Cite as: 585 U. S. 162 (2018) 163
Syllabus
adjudicating challenges to state laws under the Commerce Clause.
Pp. 172–174.
(2) They also animate Commerce Clause precedents addressing the
validity of state taxes, which will be sustained so long as they (1) apply
to an activity with a substantial nexus with the taxing State, (2) are
fairly apportioned, (3) do not discriminate against interstate commerce,
and (4) are fairly related to the services the State provides. See Complete
Auto Transit, Inc. v. Brady, 430 U. S. 274, 279. Before Complete
Auto, the Court held in Bellas Hess that a “seller whose only connection
with customers in the State is by common carrier or . . . mail” lacked
the requisite minimum contacts with the State required by the Due
Process Clause and the Commerce Clause, and that unless the retailer
maintained a physical presence in the State, the State lacked the power
to require that retailer to collect a local tax. 386 U. S., at 758. In
Quill, the Court overruled the due process holding, but not the Commerce
Clause holding, grounding the physical presence rule in Complete
Auto's requirement that a tax have a “substantial nexus” with the activity
being taxed. Pp. 174–175.
(b) The physical presence rule has long been criticized as giving outof-
state sellers an advantage. Each year, it becomes further removed
from economic reality and results in signifcant revenue losses to the
States. These critiques underscore that the rule, both as frst formulated
and as applied today, is an incorrect interpretation of the Commerce
Clause. Pp. 175–183.
(1) Quill is fawed on its own terms. First, the physical presence
rule is not a necessary interpretation of Complete Auto's nexus requirement.
That requirement is “closely related,” Bellas Hess, 386 U. S., at
756, to the due process requirement that there be “some defnite link,
some minimum connection, between a state and the person, property or
transaction it seeks to tax.” Miller Brothers Co. v. Maryland, 347 U. S.
340, 344–345. And, as Quill itself recognized, a business need not have
a physical presence in a State to satisfy the demands of due process.
When considering whether a State may levy a tax, Due Process and
Commerce Clause standards, though not identical or coterminous, have
signifcant parallels. The reasons given in Quill for rejecting the physical
presence rule for due process purposes apply as well to the question
whether physical presence is a requisite for an out-of-state seller's liability
to remit sales taxes. Other aspects of the Court's doctrine can better
and more accurately address potential burdens on interstate commerce,
whether or not Quill's physical presence rule is satisfed.
Second, Quill creates rather than resolves market distortions. In
effect, it is a judicially created tax shelter for businesses that limit their
physical presence in a State but sell their goods and services to the
164 SOUTH DAKOTA v. WAYFAIR, INC.
Syllabus
State's consumers, something that has become easier and more prevalent
as technology has advanced. The rule also produces an incentive
to avoid physical presence in multiple States, affecting development that
might be effcient or desirable.
Third, Quill imposes the sort of arbitrary, formalistic distinction that
the Court's modern Commerce Clause precedents disavow in favor of
“a sensitive, case-by-case analysis of purposes and effects,” West Lynn
Creamery, Inc. v. Healy, 512 U. S. 186, 201. It treats economically identical
actors differently for arbitrary reasons. For example, a business
that maintains a few items of inventory in a small warehouse in a State
is required to collect and remit a tax on all of its sales in the State,
while a seller with a pervasive Internet presence cannot be subject to
the same tax for the sales of the same items. Pp. 176–180.
(2) When the day-to-day functions of marketing and distribution in
the modern economy are considered, it becomes evident that Quill's
physical presence rule is artifcial, not just “at its edges,” 504 U. S., at
315, but in its entirety. Modern e-commerce does not align analytically
with a test that relies on the sort of physical presence defned in Quill.
And the Court should not maintain a rule that ignores substantial virtual
connections to the State. Pp. 180–181.
(3) The physical presence rule of Bellas Hess and Quill is also an
extraordinary imposition by the Judiciary on States' authority to collect
taxes and perform critical public functions. Forty-one States, two Territories,
and the District of Columbia have asked the Court to reject
Quill's test. Helping respondents' customers evade a lawful tax unfairly
shifts an increased share of the taxes to those consumers who buy
from competitors with a physical presence in the State. It is essential
to public confdence in the tax system that the Court avoid creating
inequitable exceptions. And it is also essential to the confdence placed
in the Court's Commerce Clause decisions. By giving some online retailers
an arbitrary advantage over their competitors who collect state
sales taxes, Quill's physical presence rule has limited States' ability to
seek long-term prosperity and has prevented market participants from
competing on an even playing feld. Pp. 181–183.
(c) Stare decisis can no longer support the Court's prohibition of a
valid exercise of the States' sovereign power. If it becomes apparent
that the Court's Commerce Clause decisions prohibit the States from
exercising their lawful sovereign powers, the Court should be vigilant
in correcting the error. It is inconsistent with this Court's proper role
to ask Congress to address a false constitutional premise of this Court's
own creation. The Internet revolution has made Quill's original error
all the more egregious and harmful. The Quill Court did not have
before it the present realities of the interstate marketplace, where the
Cite as: 585 U. S. 162 (2018) 165
Syllabus
Internet's prevalence and power have changed the dynamics of the national
economy. The expansion of e-commerce has also increased the
revenue shortfall faced by States seeking to collect their sales and use
taxes, leading the South Dakota Legislature to declare an emergency.
The argument, moreover, that the physical presence rule is clear and
easy to apply is unsound, as attempts to apply the physical presence
rule to online retail sales have proved unworkable.
Because the physical presence rule as defned by Quill is no longer a
clear or easily applicable standard, arguments for reliance based on its
clarity are misplaced. Stare decisis may accommodate “legitimate reliance
interest[s],” United States v. Ross, 456 U. S. 798, 824, but a business
“is in no position to found a constitutional right . . . on the practical
opportunities for tax avoidance,” Nelson v. Sears, Roebuck & Co., 312
U. S. 359, 366. Startups and small businesses may beneft from the
physical presence rule, but here South Dakota affords small merchants
a reasonable degree of protection. Finally, other aspects of the Court's
Commerce Clause doctrine can protect against any undue burden on
interstate commerce, taking into consideration the small businesses,
startups, or others who engage in commerce across state lines. The
potential for such issues to arise in some later case cannot justify retaining
an artifcial, anachronistic rule that deprives States of vast revenues
from major businesses. Pp. 183–188.
(d) In the absence of Quill and Bellas Hess, the frst prong of the
Complete Auto test simply asks whether the tax applies to an activity
with a substantial nexus with the taxing State, 430 U. S., at 279. Here,
the nexus is clearly suffcient. The Act applies only to sellers who engage
in a signifcant quantity of business in the State, and respondents
are large, national companies that undoubtedly maintain an extensive
virtual presence. Any remaining claims regarding the Commerce
Clause's application in the absence of Quill and Bellas Hess may be
addressed in the frst instance on remand. Pp. 188–189.
2017 S.D. 56, 901 N. W. 2d 754, vacated and remanded.
Kennedy, J., delivered the opinion of the Court, in which Thomas,
Ginsburg, Alito, and Gorsuch, JJ., joined. Thomas, J., post, p. 189, and
Gorsuch, J., post, p. 190, fled concurring opinions. Roberts, C. J., fled
a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ.,
joined, post, p. 191.
Marty J. Jackley, Attorney General of South Dakota, argued
the cause for petitioner. With him on the briefs were
Richard M. Williams, Deputy Attorney General, Kirsten E.
166 SOUTH DAKOTA v. WAYFAIR, INC.
Counsel
Jasper, Assistant Attorney General, Andrew L. Fergel, Eric
F. Citron, Thomas C. Goldstein, and Erica Oleszczuk Evans.
Deputy Solicitor General Stewart argued the cause for the
United States as amicus curiae urging reversal. With him
on the brief were Solicitor General Francisco, Acting Assistant
Attorney General Readler, Deputy Assistant Attorney
General Mooppan, Robert A. Parker, Mark B. Stern,
and Nicolas Y. Riley.
George S. Isaacson argued the cause for respondents.
With him on the brief were Martin I. Eisenstein and Matthew
P. Schaefer.*
*Briefs of amici curiae urging reversal were fled for the State of Colorado
et al. by Cynthia H. Coffman, Attorney General of Colorado, Frederick
R. Yarger, Solicitor General, Melanie J. Snyder, Chief Deputy Attorney
General, and Grant T. Sullivan, Assistant Solicitor General, and by
the Attorneys General for their respective jurisdictions as follows: Steve
Marshall of Alabama, Mark Brnovich of Arizona, Leslie Rutledge of Arkansas,
Xavier Becerra of California, George Jepsen of Connecticut, Karl
A. Racine of the District of Columbia, Pamela Jo Bondi of Florida, Christopher
M. Carr of Georgia, Russell A. Suzuki of Hawaii, Lawrence G.
Wasden of Idaho, Lisa Madigan of Illinois, Curtis T. Hill, Jr., of Indiana,
Thomas J. Miller of Iowa, Derek Schmidt of Kansas, Andy Beshear of
Kentucky, Jeff Landry of Louisiana, Janet T. Mills of Maine, Brian E.
Frosh of Maryland, Maura Healey of Massachusetts, Lori Swanson of
Minnesota, Jim Hood of Mississippi, Douglas J. Peterson of Nebraska,
Adam Paul Laxalt of Nevada, Gurbir S. Grewal of New Jersey, Hector
Balderas of New Mexico, Eric T. Schneiderman of New York, Josh Stein
of North Carolina, Wayne Stenehjem of North Dakota, Michael DeWine
of Ohio, Mike Hunter of Oklahoma, Ellen F. Rosenblum of Oregon, Josh
Shapiro of Pennsylvania, Wanda Vàzquez-Garced of Puerto Rico, Peter F.
Kilmartin of Rhode Island, Herbert H. Slatery III of Tennessee, Ken Paxton
of Texas, Sean D. Reyes of Utah, Thomas J. Donovan, Jr., of Vermont,
Claude Earl Walker of the Virgin Islands, Mark Herring of Virginia, Robert
W. Ferguson of Washington, Brad Schimel of Wisconsin, and Peter K.
Michael of Wyoming; for the City of Little Rock, Arkansas, by Thomas
M. Carpenter; for Four United States Senators by Alan B. Morrison and
Darien Shanske; for the International Council of Shopping Centers et al.
by Seth P. Waxman; for Law Professors et al. by Debra L. Greenberger;
for the Multistate Tax Commission et al. by Helen Hecht, Lila Disque,
Bruce Fort, Richard Cram, Gregory S. Matson, and Gale Garriott; for the
Cite as: 585 U. S. 162 (2018) 167
Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
When a consumer purchases goods or services, the consumer's
State often imposes a sales tax. This case requires
National Governors Association et al. by Tillman J. Breckenridge, Lisa
Soronen, and Patricia E. Roberts; for the Retail Litigation Center, Inc.,
by Donald B. Verrilli, Jr., Deborah White, Mark Yohalem, and Timothy
M. Haake; for the South Dakota Retailers Association by William M. Van
Camp; for the Streamlined Sales Tax Governing Board, Inc., by Laura K.
McNally and Andrew R. DeVooght; for the Tax Foundation by Joseph D.
Henchman; and for Brill et al. by David W. T. Daniels.
Briefs of amici curiae urging affrmance were fled for the State of
Montana by Timothy C. Fox, Attorney General of Montana, Jon Bennion,
Chief Deputy Attorney General, Dale Schowengerdt, Solicitor General,
and J. Stuart Segrest, Assistant Attorney General; for the State of New
Hampshire by Gordon J. MacDonald, Attorney General of New Hampshire,
Laura E. B. Lombardi, Senior Assistant Attorney General, and Anthony
J. Galdieri, Assistant Attorney General; for the American Academy
of Attorney-Certifed Public Accountants, Inc., by James H. Sutton, Jr.,
Sydney S. Traum, Michael E. Breslin, Mark Krasner, Gerald Donnini,
and Jonathan Taylor; for the American Catalog Mailers Association by
Edward J. Bernert and Thomas D. Warren; for the American Legislative
Exchange Council by Jonathan P. Hauenschild; for Americans for Tax
Reform by Clark R. Calhoun; for America's Collectibles Network, Inc.,
by Charles A. Trost and Charles A. Wagner III; for the Cato Institute by
Ilya Shapiro; for Colony Brands, Inc., by Warren L. Dean, Jr., Kathleen
E. Kraft, Jeffrey R. Surlas, and James M. Burger; for the Competitive
Enterprise Institute by Erik S. Jaffe and Sam Kazman; for the Computer
& Communications Industry Association by Matt Schruers and Ali
Sternburg; for eBay, Inc., et al. by Andrew J. Pincus, Leah S. Robinson,
and Amy F. Nogid; for Etsy, Inc., by Kevin P. Martin, William M. Jay,
and Andrew Kim; for the National Auctioneers Association et al. by Jonathan
M. Dunitz and Brian T. Marshall; for the National Taxpayers Union
Foundation et al. by Paul D. Clement, Erin E. Murphy, and Matthew D.
Rowen; for the Online Merchants Guild by Paul S. Rafelson; for the
United Network Equipment Dealers Association et al. by Jonathan Band;
for Washington State Tax Practitioners by Dirk Giseburt; for Chris Cox
et al. by Carl Szabo; for Bob Goodlatte et al. by David Salmons and Bryan
Killian; and for Sen. Ted Cruz et al. by Gene C. Schaerr.
Briefs of amici curiae were fled for Flipper LLC by Melanie L. Oxhorn;
for the National Association of Certifed Service Providers et al. by
Ruthanne M. Deutsch and Hyland Hunt; for the National Congress of
168 SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
the Court to determine when an out-of-state seller can be
required to collect and remit that tax. All concede that taxing
the sales in question here is lawful. The question is
whether the out-of-state seller can be held responsible for its
payment, and this turns on a proper interpretation of the
Commerce Clause, U. S. Const., Art. I, § 8, cl. 3.
In two earlier cases the Court held that an out-of-state
seller's liability to collect and remit the tax to the consumer's
State depended on whether the seller had a physical presence
in that State, but that mere shipment of goods into the
consumer's State, following an order from a catalog, did not
satisfy the physical presence requirement. National Bellas
Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753
(1967); Quill Corp. v. North Dakota, 504 U. S. 298 (1992).
The Court granted certiorari here to reconsider the scope
and validity of the physical presence rule mandated by
those cases.
I
Like most States, South Dakota has a sales tax. It taxes
the retail sales of goods and services in the State. S. D.
Codifed Laws §§ 10–45–2, 10–45–4 (2010 and Supp. 2017).
Sellers are generally required to collect and remit this tax
to the Department of Revenue. § 10–45–27.3. If for some
reason the sales tax is not remitted by the seller, then instate
consumers are separately responsible for paying a use
tax at the same rate. See §§ 10–46–2, 10–46–4, 10–46–6.
Many States employ this kind of complementary sales and
use tax regime.
Under this Court's decisions in Bellas Hess and Quill,
South Dakota may not require a business to collect its sales
tax if the business lacks a physical presence in the State.
American Indians et al. by Sam Hirsch, Ian Heath Gershengorn, Thomasina
Real Bird, and Eric Antoine; for Tax Executives Institute, Inc., by
A. Pilar Mata, W. Patrick Evans, and Eli J. Dicker; for John S. Baker,
Jr., by Mr. Baker, pro se; and for David A. Fruchtman by Mr. Fruchtman,
pro se.
Cite as: 585 U. S. 162 (2018) 169
Opinion of the Court
Without that physical presence, South Dakota instead must
rely on its residents to pay the use tax owed on their purchases
from out-of-state sellers. “[T]he impracticability of
[this] collection from the multitude of individual purchasers
is obvious.” National Geographic Soc. v. California Bd. of
Equalization, 430 U. S. 551, 555 (1977). And consumer compliance
rates are notoriously low. See, e. g., GAO, Report to
Congressional Requesters: Sales Taxes, States Could Gain
Revenue From Expanded Authority, but Businesses Are
Likely To Experience Compliance Costs 5 (GAO–18–114,
Nov. 2017) (Sales Taxes Report); California State Bd. of
Equalization, Revenue Estimate: Electronic Commerce and
Mail Order Sales 7 (2013) (Table 3) (estimating a 4 percent
collection rate). It is estimated that Bellas Hess and Quill
cause the States to lose between $8 and $33 billion every
year. See Sales Taxes Report, at 11–12 (estimating $8 to
$13 billion); Brief for Petitioner 34–35 (citing estimates of
$23 and $33.9 billion). In South Dakota alone, the department
of revenue estimates revenue loss at $48 to $58 million
annually. App. 24. Particularly because South Dakota has
no state income tax, it must put substantial reliance on its
sales and use taxes for the revenue necessary to fund essential
services. Those taxes account for over 60 percent of its
general fund.
In 2016, South Dakota confronted the serious inequity
Quill imposes by enacting S. 106—“An Act to provide for
the collection of sales taxes from certain remote sellers, to
establish certain Legislative fndings, and to declare an
emergency.” S. 106, 2016 Leg. Assembly, 91st Sess. (S. D.
2016) (S. B. 106). The legislature found that the inability to
collect sales tax from remote sellers was “seriously eroding
the sales tax base” and “causing revenue losses and imminent
harm . . . through the loss of critical funding for state
and local services.” § 8(1). The legislature also declared an
emergency: “Whereas, this Act is necessary for the support
of the state government and its existing public institutions,
170 SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
an emergency is hereby declared to exist.” § 9. Fearing
further erosion of the tax base, the legislature expressed
its intention to “apply South Dakota's sales and use tax
obligations to the limit of federal and state constitutional
doctrines” and noted the urgent need for this Court to reconsider
its precedents. §§ 8(11), (8).
To that end, the Act requires out-of-state sellers to collect
and remit sales tax “as if the seller had a physical presence
in the state.” § 1. The Act applies only to sellers that, on
an annual basis, deliver more than $100,000 of goods or services
into the State or engage in 200 or more separate transactions
for the delivery of goods or services into the State.
Ibid. The Act also forecloses the retroactive application of
this requirement and provides means for the Act to be appropriately
stayed until the constitutionality of the law has been
clearly established. §§ 5, 3, 8(10).
Respondents Wayfair, Inc., Overstock.com, Inc., and Newegg,
Inc., are merchants with no employees or real estate in
South Dakota. Wayfair, Inc., is a leading online retailer of
home goods and furniture and had net revenues of over $4.7
billion last year. Overstock.com, Inc., is one of the top online
retailers in the United States, selling a wide variety of
products from home goods and furniture to clothing and jewelry;
and it had net revenues of over $1.7 billion last year.
Newegg, Inc., is a major online retailer of consumer electronics
in the United States. Each of these three companies
ships its goods directly to purchasers throughout the United
States, including South Dakota. Each easily meets the minimum
sales or transactions requirement of the Act, but none
collects South Dakota sales tax. 2017 S.D. 56, ¶¶ 10–11, 901
N. W. 2d 754, 759–760.
Pursuant to the Act's provisions for expeditious judicial
review, South Dakota fled a declaratory judgment action
against respondents in state court, seeking a declaration that
the requirements of the Act are valid and applicable to respondents
and an injunction requiring respondents to regisCite
as: 585 U. S. 162 (2018) 171
Opinion of the Court
ter for licenses to collect and remit sales tax. App. 11, 30.
Respondents moved for summary judgment, arguing that
the Act is unconstitutional. 901 N. W. 2d, at 759–760.
South Dakota conceded that the Act cannot survive under
Bellas Hess and Quill but asserted the importance, indeed
the necessity, of asking this Court to review those earlier
decisions in light of current economic realities. 901 N. W. 2d,
at 760; see also S. B. 106, § 8. The trial court granted summary
judgment to respondents. App. to Pet. for Cert. 17a.
The South Dakota Supreme Court affrmed. It stated:
“However persuasive the State's arguments on the merits of
revisiting the issue, Quill has not been overruled [and] remains
the controlling precedent on the issue of Commerce
Clause limitations on interstate collection of sales and use
taxes.” 901 N. W. 2d, at 761. This Court granted certiorari.
583 U. S. 1089 (2018).
II
The Constitution grants Congress the power “[t]o regulate
Commerce . . . among the several States.” Art. I, § 8, cl. 3.
The Commerce Clause “refect[s] a central concern of the
Framers that was an immediate reason for calling the Constitutional
Convention: the conviction that in order to succeed,
the new Union would have to avoid the tendencies toward
economic Balkanization that had plagued relations
among the Colonies and later among the States under the
Articles of Confederation.” Hughes v. Oklahoma, 441 U. S.
322, 325–326 (1979). Although the Commerce Clause is
written as an affrmative grant of authority to Congress, this
Court has long held that in some instances it imposes limitations
on the States absent congressional action. Of course,
when Congress exercises its power to regulate commerce by
enacting legislation, the legislation controls. Southern Pacifc
Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 769 (1945).
But this Court has observed that “in general Congress has
left it to the courts to formulate the rules” to preserve “the
free fow of interstate commerce.” Id., at 770.
172 SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
To understand the issue presented in this case, it is instructive
frst to survey the general development of this
Court's Commerce Clause principles and then to review the
application of those principles to state taxes.
A
From early in its history, a central function of this Court
has been to adjudicate disputes that require interpretation
of the Commerce Clause in order to determine its meaning,
its reach, and the extent to which it limits state regulations
of commerce. Gibbons v. Ogden, 9 Wheat. 1 (1824), began
setting the course by defning the meaning of commerce.
Chief Justice Marshall explained that commerce included
both “the interchange of commodities” and “commercial intercourse.”
Id., at 189, 193. A concurring opinion further
stated that Congress had the exclusive power to regulate
commerce. See id., at 236 (opinion of Johnson, J.). Had
that latter submission prevailed and States been denied the
power of concurrent regulation, history might have seen
sweeping federal regulations at an early date that foreclosed
the States from experimentation with laws and policies of
their own, or, on the other hand, proposals to reexamine Gibbons'
broad defnition of commerce to accommodate the
necessity of allowing States the power to enact laws to implement
the political will of their people.
Just fve years after Gibbons, however, in another opinion
by Chief Justice Marshall, the Court sustained what in substance
was a state regulation of interstate commerce. In
Willson v. Black Bird Creek Marsh Co., 2 Pet. 245 (1829),
the Court allowed a State to dam and bank a stream that
was part of an interstate water system, an action that likely
would have been an impermissible intrusion on the national
power over commerce had it been the rule that only Congress
could regulate in that sphere. See id., at 252. Thus,
by implication at least, the Court indicated that the power
to regulate commerce in some circumstances was held by
Cite as: 585 U. S. 162 (2018) 173
Opinion of the Court
the States and Congress concurrently. And so both a broad
interpretation of interstate commerce and the concurrent
regulatory power of the States can be traced to Gibbons
and Willson.
Over the next few decades, the Court refned the doctrine
to accommodate the necessary balance between state and
federal power. In Cooley v. Board of Wardens of Port of
Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12
How. 299 (1852), the Court addressed local laws regulating
river pilots who operated in interstate waters and guided
many ships on interstate or foreign voyages. The Court
held that, while Congress surely could regulate on this subject
had it chosen to act, the State, too, could regulate. The
Court distinguished between those subjects that by their nature
“imperatively deman[d] a single uniform rule, operating
equally on the commerce of the United States,” and those
that “deman[d] th[e] diversity, which alone can meet . . . local
necessities.” Id., at 319. Though considerable uncertainties
were yet to be overcome, these precedents still laid the
groundwork for the analytical framework that now prevails
for Commerce Clause cases.
This Court's doctrine has developed further with time.
Modern precedents rest upon two primary principles that
mark the boundaries of a State's authority to regulate interstate
commerce. First, state regulations may not discriminate
against interstate commerce; and second, States may
not impose undue burdens on interstate commerce. State
laws that discriminate against interstate commerce face “a
virtually per se rule of invalidity.” Granholm v. Heald, 544
U. S. 460, 476 (2005) (internal quotation marks omitted).
State laws that “regulat[e] even-handedly to effectuate a legitimate
local public interest . . . will be upheld unless the
burden imposed on such commerce is clearly excessive in relation
to the putative local benefts.” Pike v. Bruce Church,
Inc., 397 U. S. 137, 142 (1970); see also Southern Pacifc,
supra, at 779. Although subject to exceptions and varia174
SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
tions, see, e. g., Hughes v. Alexandria Scrap Corp., 426 U. S.
794 (1976); Brown-Forman Distillers Corp. v. New York
State Liquor Authority, 476 U. S. 573 (1986), these two principles
guide the courts in adjudicating cases challenging
state laws under the Commerce Clause.
B
These principles also animate the Court's Commerce
Clause precedents addressing the validity of state taxes.
The Court explained the now-accepted framework for state
taxation in Complete Auto Transit, Inc. v. Brady, 430 U. S.
274 (1977). The Court held that a State “may tax exclusively
interstate commerce so long as the tax does not create
any effect forbidden by the Commerce Clause.” Id., at 285.
After all, “interstate commerce may be required to pay its
fair share of state taxes.” D. H. Holmes Co. v. McNamara,
486 U. S. 24, 31 (1988). The Court will sustain a tax so long
as it (1) applies to an activity with a substantial nexus with
the taxing State, (2) is fairly apportioned, (3) does not discriminate
against interstate commerce, and (4) is fairly related
to the services the State provides. See Complete
Auto, supra, at 279.
Before Complete Auto, the Court had addressed a challenge
to an Illinois tax that required out-of-state retailers
to collect and remit taxes on sales made to consumers who
purchased goods for use within Illinois. Bellas Hess, 386
U. S., at 754–755. The Court held that a mail-order company
“whose only connection with customers in the State is
by common carrier or the United States mail” lacked the
requisite minimum contacts with the State required by both
the Due Process Clause and the Commerce Clause. Id., at
758. Unless the retailer maintained a physical presence
such as “retail outlets, solicitors, or property within a State,”
the State lacked the power to require that retailer to collect
a local use tax. Ibid. The dissent disagreed: “There should
be no doubt that this large-scale, systematic, continuous soCite
as: 585 U. S. 162 (2018) 175
Opinion of the Court
licitation and exploitation of the Illinois consumer market is
a suffcient `nexus' to require Bellas Hess to collect from Illinois
customers and to remit the use tax.” Id., at 761–762
(opinion of Fortas, J., joined by Black and Douglas, JJ.).
In 1992, the Court reexamined the physical presence rule
in Quill. That case presented a challenge to North Dakota's
“attempt to require an out-of-state mail-order house that has
neither outlets nor sales representatives in the State to collect
and pay a use tax on goods purchased for use within the
State.” 504 U. S., at 301. Despite the fact that Bellas Hess
linked due process and the Commerce Clause together, the
Court in Quill overruled the due process holding, but not
the Commerce Clause holding; and it thus reaffrmed the
physical presence rule. 504 U. S., at 307–308, 317–318.
The Court in Quill recognized that intervening precedents,
specifcally Complete Auto, “might not dictate the
same result were the issue to arise for the frst time today.”
504 U. S., at 311. But, nevertheless, the Quill majority concluded
that the physical presence rule was necessary to prevent
undue burdens on interstate commerce. Id., at 313,
and n. 6. It grounded the physical presence rule in Complete
Auto's requirement that a tax have a “ `substantial
nexus' ” with the activity being taxed. 504 U. S., at 311.
Three Justices based their decision to uphold the physical
presence rule on stare decisis alone. Id., at 320 (Scalia, J.,
joined by Kennedy and Thomas, JJ., concurring in part and
concurring in judgment). Dissenting in relevant part, Justice
White argued that “there is no relationship between the
physical-presence/nexus rule the Court retains and Commerce
Clause considerations that allegedly justify it.” Id.,
at 327 (opinion concurring in part and dissenting in part).
III
The physical presence rule has “been the target of criticism
over many years from many quarters.” Direct Marketing
Assn. v. Brohl, 814 F. 3d 1129, 1148, 1150–1151 (CA10
176 SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
2016) (Gorsuch, J., concurring). Quill, it has been said, was
“premised on assumptions that are unfounded” and “riddled
with internal inconsistencies.” Rothfeld, Quill: Confusing
the Commerce Clause, 56 Tax Notes, July 27, 1992, pp. 487,
488. Quill created an ineffcient “online sales tax loophole”
that gives out-of-state businesses an advantage. A. Laffer
& D. Arduin, Pro-Growth Tax Reform and E-Fairness 1,
4 (July 2013). And “while nexus rules are clearly necessary,”
the Court “should focus on rules that are appropriate
to the twenty-frst century, not the nineteenth.” Hellerstein,
Deconstructing the Debate Over State Taxation of
Electronic Commerce, 13 Harv. J. L. & Tech. 549, 553 (2000).
Each year, the physical presence rule becomes further removed
from economic reality and results in signifcant revenue
losses to the States. These critiques underscore that
the physical presence rule, both as frst formulated and as
applied today, is an incorrect interpretation of the Commerce
Clause.
A
Quill is fawed on its own terms. First, the physical presence
rule is not a necessary interpretation of the requirement
that a state tax must be “applied to an activity with a
substantial nexus with the taxing State.” Complete Auto,
430 U. S., at 279. Second, Quill creates rather than resolves
market distortions. And third, Quill imposes the sort of
arbitrary, formalistic distinction that the Court's modern
Commerce Clause precedents disavow.
1
All agree that South Dakota has the authority to tax these
transactions. S. B. 106 applies to sales of “tangible personal
property, products transferred electronically, or services for
delivery into South Dakota.” § 1 (emphasis added). “It
has long been settled” that the sale of goods or services “has
a suffcient nexus to the State in which the sale is consummated
to be treated as a local transaction taxable by that
Cite as: 585 U. S. 162 (2018) 177
Opinion of the Court
State.” Oklahoma Tax Comm'n v. Jefferson Lines, Inc.,
514 U. S. 175, 184 (1995); see also 2 C. Trost & P. Hartman,
Federal Limitations on State and Local Taxation 2d § 11:1,
p. 471 (2003) (“Generally speaking, a sale is attributable to
its destination”).
The central dispute is whether South Dakota may require
remote sellers to collect and remit the tax without some additional
connection to the State. The Court has previously
stated that “[t]he imposition on the seller of the duty to insure
collection of the tax from the purchaser does not violate
the [C]ommerce [C]lause.” McGoldrick v. Berwind-White
Coal Mining Co., 309 U. S. 33, 50, n. 9 (1940). It is a “ `familiar
and sanctioned device.' ” Scripto, Inc. v. Carson,
362 U. S. 207, 212 (1960). There just must be “a substantial
nexus with the taxing State.” Complete Auto, supra,
at 279.
This nexus requirement is “closely related,” Bellas Hess,
386 U. S., at 756, to the due process requirement that there
be “some defnite link, some minimum connection, between a
state and the person, property or transaction it seeks to tax,”
Miller Brothers Co. v. Maryland, 347 U. S. 340, 344–345
(1954). It is settled law that a business need not have a
physical presence in a State to satisfy the demands of due
process. Burger King Corp. v. Rudzewicz, 471 U. S. 462, 476
(1985). Although physical presence “ `frequently will enhance'
” a business' connection with a State, “ `it is an inescapable
fact of modern commercial life that a substantial
amount of business is transacted [with no] need for physical
presence within a State in which business is conducted.' ”
Quill, 504 U. S., at 308. Quill itself recognized that “[t]he
requirements of due process are met irrespective of a corporation's
lack of physical presence in the taxing State.” Ibid.
When considering whether a State may levy a tax, Due
Process and Commerce Clause standards may not be identical
or coterminous, but there are signifcant parallels. The
reasons given in Quill for rejecting the physical presence
178 SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
rule for due process purposes apply as well to the question
whether physical presence is a requisite for an out-of-state
seller's liability to remit sales taxes. Physical presence is
not necessary to create a substantial nexus.
The Quill majority expressed concern that without the
physical presence rule “a state tax might unduly burden interstate
commerce” by subjecting retailers to tax-collection
obligations in thousands of different taxing jurisdictions.
Id., at 313, n. 6. But the administrative costs of compliance,
especially in the modern economy with its Internet technology,
are largely unrelated to whether a company happens to
have a physical presence in a State. For example, a business
with one salesperson in each State must collect sales
taxes in every jurisdiction in which goods are delivered; but
a business with 500 salespersons in one central location and
a website accessible in every State need not collect sales
taxes on otherwise identical nationwide sales. In other
words, under Quill, a small company with diverse physical
presence might be equally or more burdened by compliance
costs than a large remote seller. The physical presence rule
is a poor proxy for the compliance costs faced by companies
that do business in multiple States. Other aspects of the
Court's doctrine can better and more accurately address any
potential burdens on interstate commerce, whether or not
Quill's physical presence rule is satisfed.
2
The Court has consistently explained that the Commerce
Clause was designed to prevent States from engaging in economic
discrimination so they would not divide into isolated,
separable units. See Philadelphia v. New Jersey, 437 U. S.
617, 623 (1978). But it is “not the purpose of the [C]ommerce
[C]lause to relieve those engaged in interstate commerce
from their just share of state tax burden.” Complete
Auto, supra, at 288 (internal quotation marks omitted).
And it is certainly not the purpose of the Commerce Clause
Cite as: 585 U. S. 162 (2018) 179
Opinion of the Court
to permit the Judiciary to create market distortions. “If the
Commerce Clause was intended to put businesses on an even
playing feld, the [physical presence] rule is hardly a way to
achieve that goal.” Quill, supra, at 329 (opinion of White, J.).
Quill puts both local businesses and many interstate businesses
with physical presence at a competitive disadvantage
relative to remote sellers. Remote sellers can avoid the regulatory
burdens of tax collection and can offer de facto lower
prices caused by the widespread failure of consumers to pay
the tax on their own. This “guarantees a competitive beneft
to certain frms simply because of the organizational form
they choose” while the rest of the Court's jurisprudence “is
all about preventing discrimination between frms.” Direct
Marketing, 814 F. 3d, at 1150–1151 (Gorsuch, J., concurring).
In effect, Quill has come to serve as a judicially created tax
shelter for businesses that decide to limit their physical
presence and still sell their goods and services to a State's
consumers—something that has become easier and more
prevalent as technology has advanced.
Worse still, the rule produces an incentive to avoid physical
presence in multiple States. Distortions caused by the
desire of businesses to avoid tax collection mean that the
market may currently lack storefronts, distribution points,
and employment centers that otherwise would be effcient or
desirable. The Commerce Clause must not prefer interstate
commerce only to the point where a merchant physically
crosses state borders. Rejecting the physical presence rule
is necessary to ensure that artifcial competitive advantages
are not created by this Court's precedents. This Court
should not prevent States from collecting lawful taxes
through a physical presence rule that can be satisfed only if
there is an employee or a building in the State.
3
The Court's Commerce Clause jurisprudence has “eschewed
formalism for a sensitive, case-by-case analysis of
180 SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
purposes and effects.” West Lynn Creamery, Inc. v. Healy,
512 U. S. 186, 201 (1994). Quill, in contrast, treats economically
identical actors differently, and for arbitrary reasons.
Consider, for example, two businesses that sell furniture
online. The frst stocks a few items of inventory in a small
warehouse in North Sioux City, South Dakota. The second
uses a major warehouse just across the border in South
Sioux City, Nebraska, and maintains a sophisticated website
with a virtual showroom accessible in every State, including
South Dakota. By reason of its physical presence, the frst
business must collect and remit a tax on all of its sales to
customers from South Dakota, even those sales that have
nothing to do with the warehouse. See National Geographic,
430 U. S., at 561; Scripto, Inc., 362 U. S., at 211–212.
But, under Quill, the second, hypothetical seller cannot be
subject to the same tax for the sales of the same items made
through a pervasive Internet presence. This distinction
simply makes no sense. So long as a state law avoids “any
effect forbidden by the Commerce Clause,” Complete Auto,
430 U. S., at 285, courts should not rely on anachronistic formalisms
to invalidate it. The basic principles of the Court's
Commerce Clause jurisprudence are grounded in functional,
marketplace dynamics; and States can and should consider
those realities in enacting and enforcing their tax laws.
B
The Quill Court itself acknowledged that the physical
presence rule is “artifcial at its edges.” 504 U. S., at 315.
That was an understatement when Quill was decided; and
when the day-to-day functions of marketing and distribution
in the modern economy are considered, it is all the more
evident that the physical presence rule is artifcial in its
entirety.
Modern e-commerce does not align analytically with a test
that relies on the sort of physical presence defned in Quill.
In a footnote, Quill rejected the argument that “title to `a
Cite as: 585 U. S. 162 (2018) 181
Opinion of the Court
few foppy diskettes' present in a State” was suffcient to
constitute a “substantial nexus,” id., at 315, n. 8. But it is
not clear why a single employee or a single warehouse should
create a substantial nexus while “physical” aspects of pervasive
modern technology should not. For example, a company
with a website accessible in South Dakota may be said
to have a physical presence in the State via the customers'
computers. A website may leave cookies saved to the customers'
hard drives, or customers may download the company's
app onto their phones. Or a company may lease data
storage that is permanently, or even occasionally, located in
South Dakota. Cf. United States v. Microsoft Corp., 584
U. S. 236 (2018) (per curiam). What may have seemed like
a “clear,” “bright-line tes[t]” when Quill was written now
threatens to compound the arbitrary consequences that
should have been apparent from the outset. 504 U. S., at 315.
The “dramatic technological and social changes” of our “increasingly
interconnected economy” mean that buyers are
“closer to most major retailers” than ever before—“regardless
of how close or far the nearest storefront.” Direct Marketing
Assn. v. Brohl, 575 U. S. 1, 17, 18 (2015) (Kennedy,
J., concurring). Between targeted advertising and instant
access to most consumers via any internet-enabled device, “a
business may be present in a State in a meaningful way
without that presence being physical in the traditional sense
of the term.” Id., at 18. A virtual showroom can show far
more inventory, in far more detail, and with greater opportunities
for consumer and seller interaction than might be possible
for local stores. Yet the continuous and pervasive virtual
presence of retailers today is, under Quill, simply
irrelevant. This Court should not maintain a rule that ignores
these substantial virtual connections to the State.
C
The physical presence rule as defned and enforced in Bellas
Hess and Quill is not just a technical legal problem—it
182 SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
is an extraordinary imposition by the Judiciary on States'
authority to collect taxes and perform critical public functions.
Forty-one States, two Territories, and the District of
Columbia now ask this Court to reject the test formulated
in Quill. See Brief for Colorado et al. as Amici Curiae.
Quill's physical presence rule intrudes on States' reasonable
choices in enacting their tax systems. And that it allows
remote sellers to escape an obligation to remit a lawful state
tax is unfair and unjust. It is unfair and unjust to those
competitors, both local and out of State, who must remit the
tax; to the consumers who pay the tax; and to the States
that seek fair enforcement of the sales tax, a tax many States
for many years have considered an indispensable source for
raising revenue.
In essence, respondents ask this Court to retain a rule that
allows their customers to escape payment of sales taxes—
taxes that are essential to create and secure the active market
they supply with goods and services. An example may
suffce. Wayfair offers to sell a vast selection of furnishings.
Its advertising seeks to create an image of beautiful, peaceful
homes, but it also says that “ `[o]ne of the best things
about buying through Wayfair is that we do not have to
charge sales tax.' ” Brief for Petitioner 55. What Wayfair
ignores in its subtle offer to assist in tax evasion is that creating
a dream home assumes solvent state and local governments.
State taxes fund the police and fre departments
that protect the homes containing their customers' furniture
and ensure goods are safely delivered; maintain the public
roads and municipal services that allow communication with
and access to customers; support the “sound local banking
institutions to support credit transactions [and] courts to ensure
collection of the purchase price,” Quill, 504 U. S., at 328
(opinion of White, J.); and help create the “climate of consumer
confdence” that facilitates sales, see ibid. According
to respondents, it is unfair to stymie their tax-free solicitation
of customers. But there is nothing unfair about requirCite
as: 585 U. S. 162 (2018) 183
Opinion of the Court
ing companies that avail themselves of the States' benefts
to bear an equal share of the burden of tax collection. Fairness
dictates quite the opposite result. Helping respondents'
customers evade a lawful tax unfairly shifts to those
consumers who buy from their competitors with a physical
presence that satisfes Quill—even one warehouse or one
salesperson—an increased share of the taxes. It is essential
to public confdence in the tax system that the Court avoid
creating inequitable exceptions. This is also essential to the
confdence placed in this Court's Commerce Clause decisions.
Yet the physical presence rule undermines that necessary
confdence by giving some online retailers an arbitrary advantage
over their competitors who collect state sales taxes.
In the name of federalism and free markets, Quill does
harm to both. The physical presence rule it defnes has
limited States' ability to seek long-term prosperity and has
prevented market participants from competing on an even
playing feld.
IV
“Although we approach the reconsideration of our decisions
with the utmost caution, stare decisis is not an inexorable
command.” Pearson v. Callahan, 555 U. S. 223, 233
(2009) (quoting State Oil Co. v. Khan, 522 U. S. 3, 20 (1997);
alterations and internal quotation marks omitted). Here,
stare decisis can no longer support the Court's prohibition of
a valid exercise of the States' sovereign power.
If it becomes apparent that the Court's Commerce Clause
decisions prohibit the States from exercising their lawful
sovereign powers in our federal system, the Court should be
vigilant in correcting the error. While it can be conceded
that Congress has the authority to change the physical presence
rule, Congress cannot change the constitutional default
rule. It is inconsistent with the Court's proper role to ask
Congress to address a false constitutional premise of this
Court's own creation. Courts have acted as the front line
of review in this limited sphere; and hence it is important
184 SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
that their principles be accurate and logical, whether or not
Congress can or will act in response. It is currently the
Court, and not Congress, that is limiting the lawful prerogatives
of the States.
Further, the real world implementation of Commerce
Clause doctrines now makes it manifest that the physical
presence rule as defned by Quill must give way to the “farreaching
systemic and structural changes in the economy”
and “many other societal dimensions” caused by the Cyber
Age. Direct Marketing, 575 U. S., at 18 (Kennedy, J.,
concurring). Though Quill was wrong on its own terms
when it was decided in 1992, since then the Internet revolution
has made its earlier error all the more egregious and
harmful.
The Quill Court did not have before it the present realities
of the interstate marketplace. In 1992, less than 2 percent
of Americans had Internet access. See Brief for Retail Litigation
Center, Inc., et al. as Amici Curiae 11, and n. 10.
Today that number is about 89 percent. Ibid., and n. 11.
When it decided Quill, the Court could not have envisioned a
world in which the world's largest retailer would be a remote
seller, S. Li, Amazon Overtakes Wal-Mart as Biggest Retailer,
L. A. Times, July 24, 2015, http://www.latimes.com/
business/ la-fi-amazon-walmart-20150724-story.html (all Internet
materials as last visited June 18, 2018).
The Internet's prevalence and power have changed the dynamics
of the national economy. In 1992, mail-order sales in
the United States totaled $180 billion. 504 U. S., at 329
(opinion of White, J.). Last year, e-commerce retail sales
alone were estimated at $453.5 billion. Dept. of Commerce,
U. S. Census Bureau News, Quarterly Retail E-Commerce
Sales: 4th Quarter 2017 (CB18–21, Feb. 16, 2018). Combined
with traditional remote sellers, the total exceeds half a trillion
dollars. Sales Taxes Report, at 9. Since the Department
of Commerce frst began tracking e-commerce sales,
those sales have increased tenfold from 0.8 percent to 8.9
Cite as: 585 U. S. 162 (2018) 185
Opinion of the Court
percent of total retail sales in the United States. Compare
Dept. of Commerce, U. S. Census Bureau, Retail E-Commerce
Sales in Fourth Quarter 2000 (CB01–28, Feb. 16, 2001),
https://www.census.gov/mrts/www/data/pdf/00Q4.pdf, with
U. S. Census Bureau News, Quarterly Retail E-Commerce
Sales: 4th Quarter 2017. And it is likely that this percentage
will increase. Last year, e-commerce grew at four times
the rate of traditional retail, and it shows no sign of any
slower pace. See ibid.
This expansion has also increased the revenue shortfall
faced by States seeking to collect their sales and use taxes.
In 1992, it was estimated that the States were losing between
$694 million and $3 billion per year in sales tax revenues
as a result of the physical presence rule. Brief for Law
Professors et al. as Amici Curiae 11, n. 7. Now estimates
range from $8 to $33 billion. Sales Taxes Report, at 11–12;
Brief for Petitioner 34–35. The South Dakota Legislature
has declared an emergency, S. B. 106, § 9, which again demonstrates
urgency of overturning the physical presence rule.
The argument, moreover, that the physical presence rule
is clear and easy to apply is unsound. Attempts to apply
the physical presence rule to online retail sales are proving
unworkable. States are already confronting the complexities
of defning physical presence in the Cyber Age. For
example, Massachusetts proposed a regulation that would
have defned physical presence to include making apps available
to be downloaded by in-state residents and placing cookies
on in-state residents' web browsers. See 830 Code Mass.
Regs. 64H.1.7 (2017). Ohio recently adopted a similar standard.
See Ohio Rev. Code Ann. § 5741.01(I)(2)(i) (Lexis Supp.
2018). Some States have enacted so-called “click through”
nexus statutes, which defne nexus to include out-of-state
sellers that contract with in-state residents who refer customers
for compensation. See, e. g., N. Y. Tax Law Ann.
§ 1101(b)(8)(vi) (West 2017); Brief for Tax Foundation as
Amicus Curiae 20–22 (listing 21 States with similar stat186
SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
utes). Others still, like Colorado, have imposed notice and
reporting requirements on out-of-state retailers that fall just
short of actually collecting and remitting the tax. See Direct
Marketing, 814 F. 3d, at 1133 (discussing Colo. Rev. Stat.
§ 39–21–112(3.5)); Brief for Tax Foundation 24–26 (listing
nine States with similar statutes). Statutes of this sort are
likely to embroil courts in technical and arbitrary disputes
about what counts as physical presence.
Reliance interests are a legitimate consideration when the
Court weighs adherence to an earlier but fawed precedent.
See Kimble v. Marvel Entertainment, LLC, 576 U. S.
446, 457–458 (2015). But even on its own terms, the physical
presence rule as defned by Quill is no longer a clear or
easily applicable standard, so arguments for reliance based
on its clarity are misplaced. And, importantly, stare decisis
accommodates only “legitimate reliance interest[s].”
United States v. Ross, 456 U. S. 798, 824 (1982). Here, the
tax distortion created by Quill exists in large part because
consumers regularly fail to comply with lawful use taxes.
Some remote retailers go so far as to advertise sales as tax
free. See S. B. 106, § 8(3); see also Brief for Petitioner 55.
A business “is in no position to found a constitutional right
on the practical opportunities for tax avoidance.” Nelson v.
Sears, Roebuck & Co., 312 U. S. 359, 366 (1941).
Respondents argue that “the physical presence rule has
permitted start-ups and small businesses to use the Internet
as a means to grow their companies and access a national
market, without exposing them to the daunting complexity
and business-development obstacles of nationwide sales tax
collection.” Brief for Respondents 29. These burdens may
pose legitimate concerns in some instances, particularly for
small businesses that make a small volume of sales to customers
in many States. State taxes differ, not only in the
rate imposed but also in the categories of goods that are
taxed and, sometimes, the relevant date of purchase. Eventually,
software that is available at a reasonable cost may
Cite as: 585 U. S. 162 (2018) 187
Opinion of the Court
make it easier for small businesses to cope with these problems.
Indeed, as the physical presence rule no longer controls,
those systems may well become available in a short
period of time, either from private providers or from state
taxing agencies themselves. And in all events, Congress
may legislate to address these problems if it deems it necessary
and ft to do so.
In this case, however, South Dakota affords small merchants
a reasonable degree of protection. The law at issue
requires a merchant to collect the tax only if it does a considerable
amount of business in the State; the law is not retroactive;
and South Dakota is a party to the Streamlined Sales
and Use Tax Agreement, see infra, at 189.
Finally, other aspects of the Court's Commerce Clause doctrine
can protect against any undue burden on interstate
commerce, taking into consideration the small businesses,
startups, or others who engage in commerce across state
lines. For example, the United States argues that taxcollection
requirements should be analyzed under the balancing
framework of Pike v. Bruce Church, Inc., 397 U. S. 137.
Others have argued that retroactive liability risks a double
tax burden in violation of the Court's apportionment jurisprudence
because it would make both the buyer and the
seller legally liable for collecting and remitting the tax on a
transaction intended to be taxed only once. See Brief for
Law Professors et al. as Amici Curiae 7, n. 5. Complex
state tax systems could have the effect of discriminating
against interstate commerce. Concerns that complex state
tax systems could be a burden on small business are answered
in part by noting that, as discussed below, there are
various plans already in place to simplify collection; and
since in-state businesses pay the taxes as well, the risk of
discrimination against out-of-state sellers is avoided. And,
if some small businesses with only de minimis contacts seek
relief from collection systems thought to be a burden, those
entities may still do so under other theories. These issues
188 SOUTH DAKOTA v. WAYFAIR, INC.
Opinion of the Court
are not before the Court in the instant case; but their potential
to arise in some later case cannot justify retaining this
artifcial, anachronistic rule that deprives States of vast revenues
from major businesses.
For these reasons, the Court concludes that the physical
presence rule of Quill is unsound and incorrect. The
Court's decisions in Quill Corp. v. North Dakota, 504 U. S.
298 (1992), and National Bellas Hess, Inc. v. Department
of Revenue of Ill., 386 U. S. 753 (1967), should be, and now
are, overruled.
V
In the absence of Quill and Bellas Hess, the frst prong of
the Complete Auto test simply asks whether the tax applies
to an activity with a substantial nexus with the taxing State.
430 U. S., at 279. “[S]uch a nexus is established when the
taxpayer [or collector] `avails itself of the substantial privilege
of carrying on business' in that jurisdiction.” Polar
Tankers, Inc. v. City of Valdez, 557 U. S. 1, 11 (2009).
Here, the nexus is clearly suffcient based on both the economic
and virtual contacts respondents have with the State.
The Act applies only to sellers that deliver more than
$100,000 of goods or services into South Dakota or engage in
200 or more separate transactions for the delivery of goods
and services into the State on an annual basis. S. B. 106, § 1.
This quantity of business could not have occurred unless the
seller availed itself of the substantial privilege of carrying
on business in South Dakota. And respondents are large,
national companies that undoubtedly maintain an extensive
virtual presence. Thus, the substantial nexus requirement
of Complete Auto is satisfed in this case.
The question remains whether some other principle in the
Court's Commerce Clause doctrine might invalidate the Act.
Because the Quill physical presence rule was an obvious
barrier to the Act's validity, these issues have not yet been
litigated or briefed, and so the Court need not resolve them
Cite as: 585 U. S. 162 (2018) 189
Thomas, J., concurring
here. That said, South Dakota's tax system includes several
features that appear designed to prevent discrimination
against or undue burdens upon interstate commerce. First,
the Act applies a safe harbor to those who transact only limited
business in South Dakota. Second, the Act ensures that
no obligation to remit the sales tax may be applied retroactively.
S. B. 106, § 5. Third, South Dakota is one of more
than 20 States that have adopted the Streamlined Sales and
Use Tax Agreement. This system standardizes taxes to reduce
administrative and compliance costs: It requires a single,
state level tax administration, uniform defnitions of
products and services, simplifed tax rate structures, and
other uniform rules. It also provides sellers access to sales
tax administration software paid for by the State. Sellers
who choose to use such software are immune from audit liability.
See App. 26–27. Any remaining claims regarding
the application of the Commerce Clause in the absence of
Quill and Bellas Hess may be addressed in the frst instance
on remand.
The judgment of the Supreme Court of South Dakota is
vacated, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
Justice Thomas, concurring.
Justice Byron White joined the majority opinion in National
Bellas Hess, Inc. v. Department of Revenue of Ill.,
386 U. S. 753 (1967). Twenty-fve years later, we had the
opportunity to overrule Bellas Hess in Quill Corp. v. North
Dakota, 504 U. S. 298 (1992). Only Justice White voted to
do so. See id., at 322 (opinion concurring in part and dissenting
in part). I should have joined his opinion. Today,
I am slightly further removed from Quill than Justice White
was from Bellas Hess. And like Justice White, a quarter
century of experience has convinced me that Bellas Hess and
190 SOUTH DAKOTA v. WAYFAIR, INC.
Gorsuch, J., concurring
Quill “can no longer be rationally justifed.” 504 U. S., at
333. The same is true for this Court's entire negative Commerce
Clause jurisprudence. See Comptroller of Treasury
of Md. v. Wynne, 575 U. S. 542, 578 (2015) (Thomas, J., dissenting).
Although I adhered to that jurisprudence in
Quill, it is never too late to “surrende[r] former views to a
better considered position.” McGrath v. Kristensen, 340
U. S. 162, 178 (1950) (Jackson, J., concurring). I therefore
join the Court's opinion.
Justice Gorsuch, concurring.
Our dormant commerce cases usually prevent States from
discriminating between in-state and out-of-state frms. National
Bellas Hess, Inc. v. Department of Revenue of Ill.,
386 U. S. 753 (1967), and Quill Corp. v. North Dakota, 504
U. S. 298 (1992), do just the opposite. For years they have
enforced a judicially created tax break for out-of-state Internet
and mail-order frms at the expense of in-state brickand-
mortar rivals. See ante, at 178–179; Direct Marketing
Assn. v. Brohl, 814 F. 3d 1129, 1150 (CA10 2016) (Gorsuch,
J., concurring). As Justice White recognized 26 years ago,
judges have no authority to construct a discriminatory “tax
shelter” like this. Quill, supra, at 329 (opinion concurring
in part and dissenting in part). The Court is right to correct
the mistake, and I am pleased to join its opinion.
My agreement with the Court's discussion of the history
of our dormant Commerce Clause jurisprudence, however,
should not be mistaken for agreement with all aspects of
the doctrine. The Commerce Clause is found in Article I
and authorizes Congress to regulate interstate commerce.
Meanwhile our dormant commerce cases suggest Article III
courts may invalidate state laws that offend no congressional
statute. Whether and how much of this can be squared with
the text of the Commerce Clause, justifed by stare decisis,
or defended as misbranded products of federalism or antidiscrimination
imperatives fowing from Article IV's Privileges
Cite as: 585 U. S. 162 (2018) 191
Roberts, C. J., dissenting
and Immunities Clause are questions for another day. See
Energy & Environment Legal Inst. v. Epel, 793 F. 3d 1169,
1171 (CA10 2015); Comptroller of Treasury of Md. v. Wynne,
575 U. S. 542, 571–574 (2015) (Scalia, J., dissenting); Camps
Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S.
564, 610–620 (1997) (Thomas, J., dissenting). Today we put
Bellas Hess and Quill to rest and rightly end the paradox of
condemning interstate discrimination in the national economy
while promoting it ourselves.
Chief Justice Roberts, with whom Justice Breyer,
Justice Sotomayor, and Justice Kagan join, dissenting.
In National Bellas Hess, Inc. v. Department of Revenue
of Ill., 386 U. S. 753 (1967), this Court held that, under the
dormant Commerce Clause, a State could not require retailers
without a physical presence in that State to collect taxes
on the sale of goods to its residents. A quarter century
later, in Quill Corp. v. North Dakota, 504 U. S. 298 (1992),
this Court was invited to overrule Bellas Hess but declined
to do so. Another quarter century has passed, and another
State now asks us to abandon the physical-presence rule. I
would decline that invitation as well.
I agree that Bellas Hess was wrongly decided, for many
of the reasons given by the Court. The Court argues in
favor of overturning that decision because the “Internet's
prevalence and power have changed the dynamics of the national
economy.” Ante, at 184. But that is the very reason
I oppose discarding the physical-presence rule. E-commerce
has grown into a signifcant and vibrant part of our national
economy against the backdrop of established rules, including
the physical-presence rule. Any alteration to those rules
with the potential to disrupt the development of such a critical
segment of the economy should be undertaken by Congress.
The Court should not act on this important question
of current economic policy, solely to expiate a mistake it
made over 50 years ago.
192 SOUTH DAKOTA v. WAYFAIR, INC.
Roberts, C. J., dissenting
I
This Court “does not overturn its precedents lightly.”
Michigan v. Bay Mills Indian Community, 572 U. S.
782, 798 (2014). Departing from the doctrine of stare decisis
is an “exceptional action” demanding “special justifcation.”
Arizona v. Rumsey, 467 U. S. 203, 212 (1984). The bar is
even higher in felds in which Congress “exercises primary
authority” and can, if it wishes, override this Court's decisions
with contrary legislation. Bay Mills, 572 U. S., at 799
(tribal sovereign immunity); see, e. g., Kimble v. Marvel Entertainment,
LLC, 576 U. S. 446, 456 (2015) (statutory interpretation);
Halliburton Co. v. Erica P. John Fund, Inc., 573
U. S. 258, 274 (2014) ( judicially created doctrine implementing
a judicially created cause of action). In such cases, we
have said that “the burden borne by the party advocating
the abandonment of an established precedent” is “greater”
than usual. Patterson v. McLean Credit Union, 491 U. S.
164, 172 (1989). That is so “even where the error is a matter
of serious concern, provided correction can be had by legislation.”
Square D Co. v. Niagara Frontier Tariff Bureau,
Inc., 476 U. S. 409, 424 (1986) (quoting Burnet v. Coronado
Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J.,
dissenting)).
We have applied this heightened form of stare decisis in
the dormant Commerce Clause context. Under our dormant
Commerce Clause precedents, when Congress has not
yet legislated on a matter of interstate commerce, it is the
province of “the courts to formulate the rules.” Southern
Pacifc Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 770
(1945). But because Congress “has plenary power to regulate
commerce among the States,” Quill, 504 U. S., at 305, it
may at any time replace such judicial rules with legislation
of its own, see Prudential Ins. Co. v. Benjamin, 328 U. S.
408, 424–425 (1946).
In Quill, this Court emphasized that the decision to hew
to the physical-presence rule on stare decisis grounds was
Cite as: 585 U. S. 162 (2018) 193
Roberts, C. J., dissenting
“made easier by the fact that the underlying issue is not only
one that Congress may be better qualifed to resolve, but
also one that Congress has the ultimate power to resolve.”
504 U. S., at 318 (footnote omitted). Even assuming we had
gone astray in Bellas Hess, the “very fact” of Congress's superior
authority in this realm “g[a]ve us pause and counsel[
ed] withholding our hand.” Quill, 504 U. S., at 318 (alterations
omitted). We postulated that “the better part of
both wisdom and valor [may be] to respect the judgment of
the other branches of the Government.” Id., at 319; see id.,
at 320 (Scalia, J., concurring in part and concurring in judgment)
(recognizing that stare decisis has “special force” in
the dormant Commerce Clause context due to Congress's
“fnal say over regulation of interstate commerce”). The
Court thus left it to Congress “to decide whether, when, and
to what extent the States may burden interstate mail-order
concerns with a duty to collect use taxes.” Id., at 318 (majority
opinion).
II
This is neither the frst, nor the second, but the third time
this Court has been asked whether a State may obligate sellers
with no physical presence within its borders to collect
tax on sales to residents. Whatever salience the adage
“third time's a charm” has in daily life, it is a poor guide to
Supreme Court decisionmaking. If stare decisis applied
with special force in Quill, it should be an even greater impediment
to overruling precedent now, particularly since
this Court in Quill “tossed [the ball] into Congress's court,
for acceptance or not as that branch elects.” Kimble, 576
U. S., at 456; see Quill, 504 U. S., at 318 (“Congress is now
free to decide” the circumstances in which “the States may
burden interstate . . . concerns with a duty to collect use
taxes”).
Congress has in fact been considering whether to alter the
rule established in Bellas Hess for some time. See Addendum
to Brief for Four United States Senators as Amici Cu194
SOUTH DAKOTA v. WAYFAIR, INC.
Roberts, C. J., dissenting
riae 1–4 (compiling efforts by Congress between 2001 and
2017 to pass legislation respecting interstate sales tax collection);
Brief for Rep. Bob Goodlatte et al. as Amici Curiae
20–23 (Goodlatte Brief) (same). Three bills addressing the
issue are currently pending. See Marketplace Fairness Act
of 2017, S. 976, 115th Cong., 1st Sess. (2017); Remote Transactions
Parity Act of 2017, H. R. 2193, 115th Cong., 1st Sess.
(2017); No Regulation Without Representation Act, H. R.
2887, 115th Cong., 1st Sess. (2017). Nothing in today's decision
precludes Congress from continuing to seek a legislative
solution. But by suddenly changing the ground rules, the
Court may have waylaid Congress's consideration of the
issue. Armed with today's decision, state offcials can be expected
to redirect their attention from working with Congress
on a national solution, to securing new tax revenue
from remote retailers. See, e. g., Brief for Sen. Ted Cruz
et al. as Amici Curiae 10–11 (“Overturning Quill would
undo much of Congress' work to fnd a workable national
compromise under the Commerce Clause.”).
The Court proceeds with an inexplicable sense of urgency.
It asserts that the passage of time is only increasing the need
to take the extraordinary step of overruling Bellas Hess and
Quill: “Each year, the physical presence rule becomes further
removed from economic reality and results in signifcant
revenue losses to the States.” Ante, at 176. The factual
predicates for that assertion include a Government Accountability
Office (GAO) estimate that, under the physicalpresence
rule, States lose billions of dollars annually in sales
tax revenue. See ante, at 169, 185 (citing GAO, Report to
Congressional Requesters: Sales Taxes, States Could Gain
Revenue From Expanded Authority, but Businesses Are
Likely To Experience Compliance Costs 5 (GAO–18–114, Nov.
2017) (Sales Taxes Report)). But evidence in the same GAO
report indicates that the pendulum is swinging in the opposite
direction, and has been for some time. States and local
governments are already able to collect approximately 80 perCite
as: 585 U. S. 162 (2018) 195
Roberts, C. J., dissenting
cent of the tax revenue that would be available if there
were no physical-presence rule. See Sales Taxes Report 8.
Among the top 100 Internet retailers that rate is between
87 and 96 percent. See id., at 41. Some companies, including
the online behemoth Amazon,* now voluntarily collect
and remit sales tax in every State that assesses one—even
those in which they have no physical presence. See id., at
10. To the extent the physical-presence rule is harming
States, the harm is apparently receding with time.
The Court rests its decision to overrule Bellas Hess on the
“present realities of the interstate marketplace.” Ante, at
184. As the Court puts it, allowing remote sellers to escape
remitting a lawful tax is “unfair and unjust.” Ante, at 182.
“[U]nfair and unjust to . . . competitors . . . who must remit
the tax; to the consumers who pay the tax; and to the
States that seek fair enforcement of the sales tax.” Ibid.
But “the present realities of the interstate marketplace”
include the possibility that the marketplace itself could
be affected by abandoning the physical-presence rule. The
Court's focus on unfairness and injustice does not appear
to embrace consideration of that current public policy
concern.
The Court, for example, breezily disregards the costs that
its decision will impose on retailers. Correctly calculating
and remitting sales taxes on all e-commerce sales will likely
prove baffing for many retailers. Over 10,000 jurisdictions
levy sales taxes, each with “different tax rates, different
rules governing tax-exempt goods and services, different
product category defnitions, and different standards for determining
whether an out-of-state seller has a substantial
presence” in the jurisdiction. Sales Taxes Report 3. A few
examples: New Jersey knitters pay sales tax on yarn pur-
*C. Isidore, Amazon To Start Collecting State Sales Taxes Everywhere
(Mar. 29, 2017), http://money.cnn.com/2017/03/29/technology/amazonsales-
tax/ index.html (all Internet materials as last visited June 19,
2018).
196 SOUTH DAKOTA v. WAYFAIR, INC.
Roberts, C. J., dissenting
chased for art projects, but not on yarn earmarked for sweaters.
See Brief for eBay, Inc., et al. as Amici Curiae 8, n. 3
(eBay Brief). Texas taxes sales of plain deodorant at 6.25
percent but imposes no tax on deodorant with antiperspirant.
See id., at 7. Illinois categorizes Twix and Snickers bars—
chocolate-and-caramel confections usually displayed side-byside
in the candy aisle—as food and candy, respectively
(Twix have four; Snickers don't), and taxes them differently.
See id., at 8; Brief for Etsy, Inc., as Amicus Curiae 14–17
(Etsy Brief) (providing additional illustrations).
The burden will fall disproportionately on small businesses.
One vitalizing effect of the Internet has been connecting
small, even “micro” businesses to potential buyers
across the Nation. People starting a business selling their
embroidered pillowcases or carved decoys can offer their
wares throughout the country—but probably not if they have
to fgure out the tax due on every sale. See Sales Taxes
Report 22 (indicating that “costs will likely increase the most
for businesses that do not have established legal teams, software
systems, or outside counsel to assist with compliance
related questions”). And the software said to facilitate compliance
is still in its infancy, and its capabilities and expense
are subject to debate. See Etsy Brief 17–19 (describing the
inadequacies of such software); eBay Brief 8–12 (same); Sales
Taxes Report 16–20 (concluding that businesses will incur
“high” compliance costs). The Court's decision today will
surely have the effect of dampening opportunities for commerce
in a broad range of new markets.
A good reason to leave these matters to Congress is that
legislators may more directly consider the competing interests
at stake. Unlike this Court, Congress has the fexibility
to address these questions in a wide variety of ways. As
we have said in other dormant Commerce Clause cases, Congress
“has the capacity to investigate and analyze facts beCite
as: 585 U. S. 162 (2018) 197
Roberts, C. J., dissenting
yond anything the Judiciary could match.” General Motors
Corp. v. Tracy, 519 U. S. 278, 309 (1997); see Department of
Revenue of Ky. v. Davis, 553 U. S. 328, 356 (2008).
Here, after investigation, Congress could reasonably decide
that current trends might suffciently expand tax
revenues, obviating the need for an abrupt policy shift with
potentially adverse consequences for e-commerce. Or Congress
might decide that the benefts of allowing States to
secure additional tax revenue outweigh any foreseeable
harm to e-commerce. Or Congress might elect to accommodate
these competing interests, by, for example, allowing
States to tax Internet sales by remote retailers only if revenue
from such sales exceeds some set amount per year. See
Goodlatte Brief 12–14 (providing varied examples of how
Congress could address sales tax collection). In any event,
Congress can focus directly on current policy concerns rather
than past legal mistakes. Congress can also provide a nuanced
answer to the troubling question whether any change
will have retroactive effect.
An erroneous decision from this Court may well have
been an unintended factor contributing to the growth of
e-commerce. See, e. g., W. Taylor, Who's Writing the
Book on Web Business? Fast Company (Oct. 31, 1996),
https://www.fastcompany.com/27309/whos-writing-book-webbusiness.
The Court is of course correct that the Nation's
economy has changed dramatically since the time that Bellas
Hess and Quill roamed the earth. I fear the Court today is
compounding its past error by trying to fx it in a totally
different era. The Constitution gives Congress the power
“[t]o regulate Commerce . . . among the several States.”
Art. I, § 8. I would let Congress decide whether to depart
from the physical-presence rule that has governed this area
for half a century.
I respectfully dissent.
198 OCTOBER TERM, 2017
Syllabus
PEREIRA v. SESSIONS, ATTORNEY GENERAL
certiorari to the united states court of appeals for
the rst circuit
No. 17–459. Argued April 23, 2018—Decided June 21, 2018
Under the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, nonpermanent residents who are subject to removal proceedings
may be eligible for cancellation of removal if, among other
things, they have “been physically present in the United States for a
continuous period of not less than 10 years immediately preceding the
date of [an] application” for cancellation. 8 U. S. C. § 1229b(b)(1)(A).
Under the stop-time rule, however, the period of continuous presence is
“deemed to end . . . when the alien is served a notice to appear under
section 1229(a).” § 1229b(d)(1)(A). Section 1229(a), in turn, provides
that the Government shall serve noncitizens in removal proceedings
with a written “ `notice to appear,' ” specifying, among other things,
“[t]he time and place at which the [removal] proceedings will be held.”
§ 1229(a)(1)(G)(i). Per a 1997 regulation stating that a “notice to appear”
served on a noncitizen need only provide “the time, place and date
of the initial removal hearing, where practicable,” 62 Fed. Reg. 10332,
the Department of Homeland Security (DHS), at least in recent years,
almost always serves noncitizens with notices that fail to specify the
time, place, or date of initial removal hearings whenever the agency
deems it impracticable to include such information. The Board of Immigration
Appeals (BIA) has held that such notices trigger the stoptime
rule even if they do not specify the time and date of the removal
proceedings.
Petitioner Wescley Fonseca Pereira is a native and citizen of Brazil
who came to the United States in 2000 and remained after his visa
expired. Following a 2006 arrest for operating a vehicle while under
the infuence of alcohol, DHS served Pereira with a document titled
“notice to appear” that did not specify the date and time of his initial
removal hearing, instead ordering him to appear at a time and date to
be set in the future. More than a year later, in 2007, the Immigration
Court mailed Pereira a more specifc notice setting the date and time
for his initial hearing, but the notice was sent to the wrong address and
was returned as undeliverable. As a result, Pereira failed to appear,
and the Immigration Court ordered him removed in absentia.
In 2013, Pereira was arrested for a minor motor vehicle violation and
detained by DHS. The Immigration Court reopened the removal proCite
as: 585 U. S. 198 (2018) 199
Syllabus
ceedings after Pereira demonstrated that he never received the 2007
notice. Pereira then applied for cancellation of removal, arguing that
he had been continuously present in the United States for more than 10
years and that the stop-time rule was not triggered by DHS' initial 2006
notice because the document lacked information about the time and date
of his removal hearing. The Immigration Court disagreed and ordered
Pereira removed. The BIA agreed with the Immigration Court that
the 2006 notice triggered the stop-time rule, even though it failed to
specify the time and date of Pereira's initial removal hearing. The
Court of Appeals for the First Circuit denied Pereira's petition for review
of the BIA's order. Applying the framework set forth in Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837,
it held that the stop-time rule is ambiguous and that the BIA's interpretation
of the rule was a permissible reading of the statute.
Held: A putative notice to appear that fails to designate the specifc time
or place of the noncitizen's removal proceedings is not a “notice to
appear under § 1229(a),” and so does not trigger the stop-time rule.
Pp. 207–219.
(a) The Court need not resort to Chevron deference, for the unambiguous
statutory text alone is enough to resolve this case. Under the
stop-time rule, “any period of . . . continuous physical presence” is
“deemed to end . . . when the alien is served a notice to appear under
section 1229(a).” 8 U. S. C. § 1229b(d)(1). By expressly referencing
§ 1229(a), the statute specifes where to look to fnd out what “notice to
appear” means. Section 1229(a), in turn, clarifes that the type of notice
“referred to as a `notice to appear' ” throughout the statutory section is
a “written notice . . . specifying,” as relevant here, “[t]he time and place
at which the [removal] proceedings will be held.” § 1229(a)(1)(G)(i).
Thus, to trigger the stop-time rule, the Government must serve a notice
to appear that, at the very least, “specif[ies]” the “time and place” of
the removal hearing.
The Government and dissent point out that the stop-time rule refers
broadly to a notice to appear under “§ 1229(a)”—which includes paragraph
(1), as well as paragraphs (2) and (3). But that does not matter,
because only paragraph (1) bears on the meaning of a “notice to appear.”
If anything, paragraph (2), which allows for a “change or postponement”
of the proceedings to a “new time and place,” § 1229(a)(2)(A)(i), bolsters
the Court's interpretation of the statute because the provision presumes
that the Government has already served a “notice to appear” that specifed
a time and place as required by § 1229(a)(1)(G)(i). Another neighboring
provision, § 1229(b)(1), lends further support for the view that a
“notice to appear” must specify the time and place of removal proceed200
PEREIRA v. SESSIONS
Syllabus
ings to trigger the stop-time rule. Section 1229(b)(1) gives a noncitizen
“the opportunity to secure counsel before the frst [removal] hearing
date” by mandating that such “hearing date shall not be scheduled earlier
than 10 days after the service of the notice to appear.” For that
provision to have any meaning, the “notice to appear” must specify the
time and place that the noncitizen, and his counsel, must appear at the
removal proceedings. Finally, common sense reinforces the conclusion
that a notice that does not specify when and where to appear for a
removal proceeding is not a “notice to appear” that triggers the stoptime
rule. After all, an essential function of a “notice to appear” is to
provide noncitizens “notice” of the information (i. e., the “time” and
“place”) that would enable them “to appear” at the removal hearing
in the frst place. Without conveying such information, the Government
cannot reasonably expect noncitizens to appear for their removal
proceedings. Pp. 207–212.
(b) The Government and the dissent advance a litany of counterarguments,
all of which are unpersuasive. To begin, the Government mistakenly
argues that § 1229(a) is not defnitional. That is wrong. Section
1229(a) speaks in defnitional terms, requiring that a notice to
appear specify, among other things, the “time and place at which the
proceedings will be held.” As such, the dissent is misguided in arguing
that a defective notice to appear, which fails to specify time-and-place
information, is still a notice to appear for purposes of the stop-time rule.
Equally unavailing is the Government's (and the dissent's) attempt to
generate ambiguity in the statute based on the word “under.” In light
of the plain language and statutory context, the word “under,” as used
in the stop-time rule, clearly means “in accordance with” or “according
to” because it connects the stop-time trigger in § 1229b(d)(1) to a “notice
to appear” that specifes the enumerated time-and-place information.
The Government fares no better in arguing that surrounding statutory
provisions reinforce its preferred reading of the stop-time rule, as none
of those provisions supports its atextual interpretation. Unable to root
its reading in the statutory text, the Government and dissent raise a
number of practical concerns, but those concerns are meritless and do
not justify departing from the statute's clear text. In a fnal attempt to
salvage its atextual interpretation, the Government turns to the alleged
statutory purpose and legislative history of the stop-time rule. Even
for those who consider statutory purpose and legislative history, however,
neither supports the Government's position. Requiring the Government
to furnish time-and-place information in a notice to appear is
entirely consistent with Congress' stated objective of preventing noncitizens
from exploiting administrative delays to accumulate lengthier periods
of continuous precedent. Pp. 212–219.
Cite as: 585 U. S. 198 (2018) 201
Opinion of the Court
866 F. 3d 1, reversed and remanded.
Sotomayor, J., delivered the opinion of the Court, in which Roberts,
C. J., and Kennedy, Thomas, Ginsburg, Breyer, Kagan, and Gorsuch,
JJ., joined. Kennedy, J., fled a concurring opinion, post, p. 219. Alito,
J., fled a dissenting opinion, post, p. 221.
David J. Zimmer argued the cause for petitioner. With
him on the briefs were William M. Jay, Alexandra Lu, Jeffrey
B. Rubin, and Todd C. Pomerleau.
Frederick Liu argued the cause for respondent. On the
brief were Solicitor General Francisco, Acting Assistant
Attorney General Readler, Deputy Solicitor General Kneedler,
Jonathan C. Bond, Donald E. Keener, John W. Blakeley,
and Patrick J. Glen.*
Justice Sotomayor delivered the opinion of the Court.
Nonpermanent residents, like petitioner here, who are
subject to removal proceedings and have accrued 10 years of
continuous physical presence in the United States, may be
eligible for a form of discretionary relief known as cancellation
of removal. 8 U. S. C. § 1229b(b)(1). Under the socalled
“stop-time rule” set forth in § 1229b(d)(1)(A), however,
that period of continuous physical presence is “deemed to
end . . . when the alien is served a notice to appear under
section 1229(a).” Section 1229(a), in turn, provides that the
Government shall serve noncitizens in removal proceedings
with “written notice (in this section referred to as a `notice
to appear') . . . specifying” several required pieces of information,
including “[t]he time and place at which the [removal]
proceedings will be held.” § 1229(a)(1)(G)(i).1
*Briefs of amici curiae urging reversal were fled for the American
Immigration Lawyers Association et al. by Bradley N. Garcia and Jeremy
Maltby; for the National Immigrant Justice Center by Lindsay C. Harrison
and Charles Roth; and for Paul Wickham Schmidt by Eric F.
Citron.
1 The Court uses the term “noncitizen” throughout this opinion to refer
to any person who is not a citizen or national of the United States. See
8 U. S. C. § 1101(a)(3).
202 PEREIRA v. SESSIONS
Opinion of the Court
The narrow question in this case lies at the intersection
of those statutory provisions. If the Government serves a
noncitizen with a document that is labeled “notice to appear,”
but the document fails to specify either the time or place of
the removal proceedings, does it trigger the stop-time rule?
The answer is as obvious as it seems: No. A notice that
does not inform a noncitizen when and where to appear for
removal proceedings is not a “notice to appear under section
1229(a)” and therefore does not trigger the stop-time rule.
The plain text, the statutory context, and common sense all
lead inescapably and unambiguously to that conclusion.
I
A
Under the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), 110 Stat. 3009–546, the
Attorney General of the United States has discretion to “cancel
removal” and adjust the status of certain nonpermanent
residents. § 1229b(b). To be eligible for such relief, a nonpermanent
resident must meet certain enumerated criteria,
the relevant one here being that the noncitizen must have
“been physically present in the United States for a continuous
period of not less than 10 years immediately preceding
the date of [an] application” for cancellation of removal.
§ 1229b(b)(1)(A).2
IIRIRA also established the stop-time rule at issue in this
case. Under that rule, “any period of . . . continuous physical
presence in the United States shall be deemed to end . . .
when the alien is served a notice to appear under section
1229(a) of this title.” 3 § 1229b(d)(1)(A). Section 1229(a), in
2 Lawful permanent residents also may be eligible for cancellation of
removal if, inter alia, they have continuously resided in the United States
for at least seven years. § 1229b(a)(2).
3 The period of continuous physical presence also stops if and when “the
alien has committed” certain enumerated offenses that would constitute
grounds for removal or inadmissibility. § 1229b(d)(1)(B). That provision
is not at issue here.
Cite as: 585 U. S. 198 (2018) 203
Opinion of the Court
turn, provides that “written notice (in this section referred
to as a `notice to appear') shall be given . . . to the alien
. . . specifying”:
“(A) The nature of the proceedings against the alien.
“(B) The legal authority under which the proceedings
are conducted.
“(C) The acts or conduct alleged to be in violation of
law.
“(D) The charges against the alien and the statutory
provisions alleged to have been violated.
“(E) The alien may be represented by counsel and the
alien will be provided (i) a period of time to secure counsel
under subsection (b)(1) of this section and (ii) a current
list of counsel prepared under subsection (b)(2) of
this section.
“(F)(i) The requirement that the alien must immediately
provide (or have provided) the Attorney General
with a written record of an address and telephone number
(if any) at which the alien may be contacted respecting
proceedings under section 1229a of this title.
“(ii) The requirement that the alien must provide the
Attorney General immediately with a written record of
any change of the alien's address or telephone number.
“(iii) The consequences under section 1229a(b)(5) of
this title of failure to provide address and telephone information
pursuant to this subparagraph.
“(G)(i) The time and place at which the [removal]
proceedings will be held.
“(ii) The consequences under section 1229a(b)(5) of
this title of the failure, except under exceptional circumstances,
to appear at such proceedings.” § 1229(a)(1)
(boldface added).
The statute also enables the Government to “change or postpon[
e] . . . the time and place of [the removal] proceedings.”
§ 1229(a)(2)(A). To do so, the Government must give the
204 PEREIRA v. SESSIONS
Opinion of the Court
noncitizen “a written notice . . . specifying . . . the new time
or place of the proceedings” and “the consequences . . . of
failing, except under exceptional circumstances, to attend
such proceedings.” Ibid. The Government is not required
to provide written notice of the change in time or place of
the proceedings if the noncitizen is “not in detention” and
“has failed to provide [his] address” to the Government.
§ 1229(a)(2)(B).
The consequences of a noncitizen's failure to appear at a
removal proceeding can be quite severe. If a noncitizen who
has been properly served with the “written notice required
under paragraph (1) or (2) of section 1229(a)” fails to appear
at a removal proceeding, he “shall be ordered removed in
absentia” if the Government “establishes by clear, unequivocal,
and convincing evidence that the written notice was so
provided and that the alien is removable.” § 1229a(b)(5)(A).
Absent “exceptional circumstances,” a noncitizen subject to
an in absentia removal order is ineligible for some forms of
discretionary relief for 10 years if, “at the time of the notice
described in paragraph (1) or (2) of section 1229(a),” he
“was provided oral notice . . . of the time and place of the
proceedings and of the consequences” of failing to appear.
§ 1229a(b)(7). In certain limited circumstances, however, a
removal order entered in absentia may be rescinded—e. g.,
when the noncitizen “demonstrates that [he] did not receive
notice in accordance with paragraph (1) or (2) of section
1229(a).” § 1229a(b)(5)(C)(ii).
B
In 1997, shortly after Congress passed IIRIRA, the Attorney
General promulgated a regulation stating that a “notice
to appear” served on a noncitizen need only provide “the
time, place and date of the initial removal hearing, where
practicable.” 62 Fed. Reg. 10332 (1997). Per that regulation,
the Department of Homeland Security (DHS), at least
in recent years, almost always serves noncitizens with noCite
as: 585 U. S. 198 (2018) 205
Opinion of the Court
tices that fail to specify the time, place, or date of initial
removal hearings whenever the agency deems it impracticable
to include such information. See Brief for Petitioner 14;
Brief for Respondent 48–49; Tr. of Oral Arg. 52–53 (Government's
admission that “almost 100 percent” of “notices to appear
omit the time and date of the proceeding over the last
three years”). Instead, these notices state that the times,
places, or dates of the initial hearings are “to be determined.”
Brief for Petitioner 14.
In Matter of Camarillo, 25 I. & N. Dec. 644 (2011), the
Board of Immigration Appeals (BIA) addressed whether
such notices trigger the stop-time rule even if they do not
specify the time and date of the removal proceedings. The
BIA concluded that they do. Id., at 651. It reasoned that
the statutory phrase “notice to appear `under section
[1229](a)' ” in the stop-time rule “merely specifes the document
the DHS must serve on the alien to trigger the `stoptime'
rule,” but otherwise imposes no “substantive requirements”
as to what information that document must include
to trigger the stop-time rule. Id., at 647.
C
Petitioner Wescley Fonseca Pereira is a native and citizen
of Brazil. In 2000, at age 19, he was admitted to the
United States as a temporary “non-immigrant visitor.” 866
F. 3d 1, 2 (CA1 2017). After his visa expired, he remained
in the United States. Pereira is married and has two young
daughters, both of whom are United States citizens. He
works as a handyman and, according to submissions before
the Immigration Court, is a well-respected member of his
community.
In 2006, Pereira was arrested in Massachusetts for operating
a vehicle while under the infuence of alcohol. On May
31, 2006, while Pereira was detained, DHS served him (in
person) with a document labeled “Notice to Appear.” App.
7–13. That putative notice charged Pereira as removable for
206 PEREIRA v. SESSIONS
Opinion of the Court
overstaying his visa, informed him that “removal proceedings”
were being initiated against him, and provided him
with information about the “[c]onduct of the hearing” and
the consequences for failing to appear. Id., at 7, 10–12.
Critical here, the notice did not specify the date and time of
Pereira's removal hearing. Instead, it ordered him to appear
before an Immigration Judge in Boston “on a date to be
set at a time to be set.” Id., at 9 (underlining in original).
More than a year later, on August 9, 2007, DHS fled the
2006 notice with the Boston Immigration Court. The Immigration
Court thereafter attempted to mail Pereira a more
specifc notice setting the date and time for his initial removal
hearing for October 31, 2007, at 9:30 a.m. But that
second notice was sent to Pereira's street address rather
than his post offce box (which he had provided to DHS),
so it was returned as undeliverable. Because Pereira never
received notice of the time and date of his removal hearing,
he failed to appear, and the Immigration Court ordered him
removed in absentia. Unaware of that removal order, Pereira
remained in the United States.
In 2013, after Pereira had been in the country for more
than 10 years, he was arrested for a minor motor vehicle
violation (driving without his headlights on) and was subsequently
detained by DHS. The Immigration Court reopened
the removal proceedings after Pereira demonstrated
that he never received the Immigration Court's 2007 notice
setting out the specifc date and time of his hearing. Pereira
then applied for cancellation of removal, arguing that the
stop-time rule was not triggered by DHS' initial 2006 notice
because the document lacked information about the time and
date of his removal hearing.
The Immigration Court disagreed, fnding the law “quite
settled that DHS need not put a date certain on the Notice
to Appear in order to make that document effective.” App.
to Pet. for Cert. 23a. The Immigration Court therefore
concluded that Pereira could not meet the 10-year physicalCite
as: 585 U. S. 198 (2018) 207
Opinion of the Court
presence requirement under § 1229b(b), thereby rendering
him statutorily ineligible for cancellation of removal, and ordered
Pereira removed from the country. The BIA dismissed
Pereira's appeal. Adhering to its precedent in Camarillo,
the BIA agreed with the Immigration Court that
the 2006 notice triggered the stop-time rule and that Pereira
thus failed to satisfy the 10-year physical-presence requirement
and was ineligible for cancellation of removal. The
Court of Appeals for the First Circuit denied Pereira's
petition for review of the BIA's order. 866 F. 3d 1. Applying
the framework set forth in Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837
(1984), the Court of Appeals frst found that the stop-time
rule in § 1229b(d)(1) is ambiguous because it “does not explicitly
state that the date and time of the hearing must be included
in a notice to appear in order to cut off an alien's
period of continuous physical presence.” 866 F. 3d, at 5.
Then, after reviewing the statutory text and structure, the
administrative context, and pertinent legislative history, the
Court of Appeals held that the BIA's interpretation of the
stop-time rule was a permissible reading of the statute. Id.,
at 6–8.
II
A
The Court granted certiorari in this case, 583 U. S. 1089
(2018), to resolve division among the Courts of Appeals on a
simple, but important, question of statutory interpretation:
Does service of a document styled as a “notice to appear”
that fails to specify “the items listed” in § 1229(a)(1) trigger
the stop-time rule? 4 Pet. for Cert. i.
4 Compare Orozco-Velasquez v. Attorney General United States, 817
F. 3d 78, 83–84 (CA3 2016) (holding that the stop-time rule unambiguously
requires service of a “notice to appear” that meets § 1229(a)(1)'s requirements),
with Moscoso-Castellanos v. Lynch, 803 F. 3d 1079, 1083 (CA9
2015) (fnding the statute ambiguous and deferring to the BIA's interpretation);
O'Garro v. United States Atty. Gen., 605 Fed. Appx. 951, 953 (CA11
208 PEREIRA v. SESSIONS
Opinion of the Court
As a threshold matter, the Court notes that the question
presented by Pereira, which focuses on all “items listed” in
§ 1229(a)(1), sweeps more broadly than necessary to resolve
the particular case before us. Although the time-and-place
information in a notice to appear will vary from case to case,
the Government acknowledges that “[m]uch of the information
Section 1229(a)(1) calls for does not” change and is therefore
“included in standardized language on the I–862 noticeto-
appear form.” Brief for Respondent 36 (referencing 8
U. S. C. §§ 1229(a)(1)(A)–(B), (E)–(F), and (G)(ii)). In fact,
the Government's 2006 notice to Pereira included all of the
information required by § 1229(a)(1), except it failed to specify
the date and time of Pereira's removal proceedings. See
App. 10–12. Accordingly, the dispositive question in this
case is much narrower, but no less vital: Does a “notice to
appear” that does not specify the “time and place at which
the proceedings will be held,” as required by § 1229(a)(1)(G)(i),
trigger the stop-time rule? 5
In addressing that narrower question, the Court need not
resort to Chevron deference, as some lower courts have
done, for Congress has supplied a clear and unambiguous answer
to the interpretive question at hand. See 467 U. S., at
842–843 (“If the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress”).
A putative notice to appear that fails to designate the specifc
2015) (per curiam) (same); Guaman-Yuqui v. Lynch, 786 F. 3d 235, 239–
240 (CA2 2015) (per curiam) (same); Gonzalez-Garcia v. Holder, 770 F. 3d
431, 434–435 (CA6 2014) (same); Yi Di Wang v. Holder, 759 F. 3d 670,
674–675 (CA7 2014) (same); Urbina v. Holder, 745 F. 3d 736, 740 (CA4
2014) (same).
5 The Court leaves for another day whether a putative notice to appear
that omits any of the other categories of information enumerated in
§ 1229(a)(1) triggers the stop-time rule. Contrary to the dissent's assertion,
this exercise of judicial restraint is by no means “tantamount to admitting”
that the Government's (and dissent's) atextual interpretation is a
permissible construction of the statute. Post, at 230 (opinion of Alito, J.).
Cite as: 585 U. S. 198 (2018) 209
Opinion of the Court
time or place of the noncitizen's removal proceedings is not
a “notice to appear under section 1229(a),” and so does not
trigger the stop-time rule.
B
The statutory text alone is enough to resolve this case.
Under the stop-time rule, “any period of . . . continuous physical
presence” is “deemed to end . . . when the alien is served
a notice to appear under section 1229(a). ” 8 U. S. C.
§ 1229b(d)(1). By expressly referencing § 1229(a), the statute
specifes where to look to fnd out what “notice to appear”
means. Section 1229(a), in turn, clarifes that the type
of notice “referred to as a `notice to appear' ” throughout the
statutory section is a “written notice . . . specifying,” as relevant
here, “[t]he time and place at which the [removal] proceedings
will be held.” § 1229(a)(1)(G)(i). Thus, based on
the plain text of the statute, it is clear that to trigger the
stop-time rule, the Government must serve a notice to appear
that, at the very least, “specif[ies]” the “time and place”
of the removal proceedings.
It is true, as the Government and dissent point out, that
the stop-time rule makes broad reference to a notice to appear
under “section 1229(a),” which includes paragraph (1),
as well as paragraphs (2) and (3). See Brief for Respondent
27–28; post, at 225–226 (opinion of Alito, J.). But the broad
reference to § 1229(a) is of no consequence, because, as even
the Government concedes, only paragraph (1) bears on the
meaning of a “notice to appear.” Brief for Respondent 27.
By contrast, paragraph (2) governs the “[n]otice of change in
time or place of proceedings,” and paragraph (3) provides for
a system to record noncitizens' addresses and phone numbers.
Nowhere else within § 1229(a) does the statute purport
to delineate the requirements of a “notice to appear.”
In fact, the term “notice to appear” appears only in paragraph
(1) of § 1229(a).
If anything, paragraph (2) of § 1229(a) actually bolsters the
Court's interpretation of the statute. Paragraph (2) pro210
PEREIRA v. SESSIONS
Opinion of the Court
vides that, “in the case of any change or postponement in
the time and place of [removal] proceedings,” the Government
shall give the noncitizen “written notice . . . specifying
. . . the new time or place of the proceedings.” § 1229(a)
(2)(A)(i). By allowing for a “change or postponement” of the
proceedings to a “new time or place,” paragraph (2) presumes
that the Government has already served a “notice to
appear under section 1229(a)” that specifed a time and place
as required by § 1229(a)(1)(G)(i). Otherwise, there would be
no time or place to “change or postpon[e].” § 1229(a)(2).
Notably, the dissent concedes that paragraph (2) confrms
that a notice to appear must “state the `time and place' of
the removal proceeding as required by § 1229(a)(1).' ” Post,
at 233. The dissent nevertheless retorts that this point is
“entirely irrelevant.” Ibid. Not so. Paragraph (2) clearly
reinforces the conclusion that “a notice to appear under section
1229(a),” § 1229b(d)(1), must include at least the time
and place of the removal proceedings to trigger the stoptime
rule.
Another neighboring statutory provision lends further
contextual support for the view that a “notice to appear”
must include the time and place of the removal proceedings
to trigger the stop-time rule. Section 1229(b)(1) gives a
noncitizen “the opportunity to secure counsel before the frst
[removal] hearing date” by mandating that such “hearing
date shall not be scheduled earlier than 10 days after the
service of the notice to appear.” For § 1229(b)(1) to have
any meaning, the “notice to appear” must specify the time
and place that the noncitizen, and his counsel, must appear
at the removal hearing. Otherwise, the Government could
serve a document labeled “notice to appear” without listing
the time and location of the hearing and then, years down
the line, provide that information a day before the removal
hearing when it becomes available. Under that view of the
statute, a noncitizen theoretically would have had the “opportunity
to secure counsel,” but that opportunity will not
Cite as: 585 U. S. 198 (2018) 211
Opinion of the Court
be meaningful if, given the absence of a specifed time and
place, the noncitizen has minimal time and incentive to plan
accordingly, and his counsel, in turn, receives limited notice
and time to prepare adequately. It therefore follows that, if
a “notice to appear” for purposes of § 1229(b)(1) must include
the time-and-place information, a “notice to appear” for purposes
of the stop-time rule under § 1229b(d)(1) must as well.
After all, “it is a normal rule of statutory construction that
identical words used in different parts of the same act are
intended to have the same meaning.” Taniguchi v. Kan Pacifc
Saipan, Ltd., 566 U. S. 560, 571 (2012) (internal quotation
marks omitted).6
Finally, common sense compels the conclusion that a notice
that does not specify when and where to appear for a removal
proceeding is not a “notice to appear” that triggers
the stop-time rule. If the three words “notice to appear”
mean anything in this context, they must mean that, at a
minimum, the Government has to provide noncitizens “notice”
of the information, i. e., the “time” and “place,” that
would enable them “to appear” at the removal hearing in the
6 The dissent argues that, if a notice to appear must furnish time-andplace
information, the Government “may be forced by the Court's interpretation
to guess that the hearing will take place far in the future, only
to learn shortly afterwards that the hearing is in fact imminent.” Post,
at 234. In such a scenario, the dissent hypothesizes, a noncitizen would be
“lulled into a false sense of security” and thus would have little meaningful
opportunity to secure counsel and prepare adequately. Ibid. But nothing
in our interpretation of the statute “force[s]” the Government to guess
when and where a hearing will take place, ibid., nor does our interpretation
prevent DHS and the Immigration Courts from working together to
streamline the scheduling of removal proceedings, see infra, at 218. Far
from “lull[ing]” noncitizens into a false sense of security, post, at 234, our
reading (unlike the Government's and the dissent's) still gives meaning to
a noncitizen's “opportunity to secure counsel before the frst [removal]
hearing date,” § 1229(b)(1), by informing the noncitizen that the Government
is committed to moving forward with removal proceedings at a specifc
time and place. Equipped with that knowledge, a noncitizen has an
incentive to obtain counsel and prepare for his hearing.
212 PEREIRA v. SESSIONS
Opinion of the Court
frst place. Conveying such time-and-place information to a
noncitizen is an essential function of a notice to appear, for
without it, the Government cannot reasonably expect the
noncitizen to appear for his removal proceedings. To hold
otherwise would empower the Government to trigger the
stop-time rule merely by sending noncitizens a barebones
document labeled “Notice to Appear,” with no mention of the
time and place of the removal proceedings, even though such
documents would do little if anything to facilitate appearance
at those proceedings.7 “ `We are not willing to impute to
Congress . . . such [a] contradictory and absurd purpose,' ”
United States v. Bryan, 339 U. S. 323, 342 (1950), particularly
where doing so has no basis in the statutory text.
III
Straining to inject ambiguity into the statute, the Government
and the dissent advance several overlapping arguments.
None is persuasive.
7 At oral argument, the Government conceded that a blank piece of paper
would not suffce to trigger the stop-time rule because (in its view) such
a hypothetical notice would fail to specify the charges against the noncitizen.
Tr. of Oral Arg. 39–40 (arguing that notice to appear must “tell the
alien what proceedings he must appear for and why he must appear for
them”). The dissent also endorses the view that a notice to appear “can
also be understood to serve primarily as a charging document.” Post, at
234–235. But neither the Government nor the dissent offers any convincing
basis, much less one rooted in the statutory text, for treating timeand-
place information as any less crucial than charging information for
purposes of triggering the stop-time rule. Furthermore, there is no reason
why a notice to appear should have only one essential function. Even
if a notice to appear functions as a “charging document,” that is not mutually
exclusive with the conclusion that a notice to appear serves another
equally integral function: telling a noncitizen when and where to appear.
At bottom, the Government's self-serving position that a notice to appear
must specify charging information, but not the time-and-place information,
reveals the arbitrariness inherent in its atextual approach to the stoptime
rule.
Cite as: 585 U. S. 198 (2018) 213
Opinion of the Court
A
First, the Government posits that § 1229(a) “is not worded
in the form of a defnition” and thus cannot circumscribe
what type of notice counts as a “notice to appear” for purposes
of the stop-time rule. Brief for Respondent 32. Section
1229(a), however, does speak in defnitional terms, at
least with respect to the “time and place at which the proceedings
will be held”: It specifcally provides that the notice
described under paragraph (1) is “referred to as a `notice
to appear,' ” which in context is quintessential defnitional
language.8 It then defnes that term as a “written notice”
that, as relevant here, “specif[ies] . . . [t]he time and place
at which the [removal] proceedings will be held.” § 1229(a)
(1)(G)(i). Thus, when the term “notice to appear” is used
elsewhere in the statutory section, including as the trigger
for the stop-time rule, it carries with it the substantive timeand-
place criteria required by § 1229(a).
Resisting this straightforward understanding of the text,
the dissent posits that Ҥ 1229(a)(1)'s language can be understood
to defne what makes a notice to appear complete.”
Post, at 231 (emphasis in original). In the dissent's view, a
defective notice to appear is still a “notice to appear” even if
it is incomplete—much like a three-wheeled Chevy is still a
car. Post, at 230–231. The statutory text proves otherwise.
Section 1229(a)(1) does not say a “notice to appear” is “complete”
when it specifes the time and place of the removal
proceedings. Rather, it defnes a “notice to appear” as a
8 Congress has employed similar defnitional language in other statutory
schemes. See, e. g., 21 U. S. C. § 356(b)(1) (creating new class of “fast track
product[s]” by setting out drug requirements and providing: “In this section,
such a drug is referred to as a `fast track product' ”); § 356(a)(1) (“In
this section, such a drug is referred to as a `breakthrough therapy' ”); 38
U. S. C. § 7451(a)(2) (“hereinafter in this section referred to as `covered
positions' ”); 42 U. S. C. § 285g–4(b) (“hereafter in this section referred to
as `medical rehabilitation' ”).
214 PEREIRA v. SESSIONS
Opinion of the Court
“written notice” that “specif[ies],” at a minimum, the time
and place of the removal proceedings. § 1229(a)(1)(G)(i).
Moreover, the omission of time-and-place information is not,
as the dissent asserts, some trivial, ministerial defect, akin
to an unsigned notice of appeal. Cf. Becker v. Montgomery,
532 U. S. 757, 763, 768 (2001). Failing to specify integral information
like the time and place of removal proceedings
unquestionably would “deprive [the notice to appear] of
its essential character.” Post, at 232, n. 5; see supra, at
212, n. 7.9
B
The Government and the dissent next contend that Congress'
use of the word “under” in the stop-time rule renders
the statute ambiguous. Brief for Respondent 22–23; post, at
224–225. Recall that the stop-time rule provides that “any
period of . . . continuous physical presence” is “deemed to
end . . . when the alien is served a notice to appear under
section 1229(a).” § 1229b(d)(1)(A). According to the Government,
the word “under” in that provision means “subject
to,” “governed by,” or “issued under the authority of.”
Brief for Respondent 24. The dissent offers yet another alternative,
insisting that “under” can also mean “ `authorized
by.' ” Post, at 224. Those defnitions, the Government and
dissent maintain, support the BIA's view that the stop-time
rule applies so long as DHS serves a notice that is “authorized
by,” or “subject to or governed by, or issued under the
9 The dissent maintains that Congress' decision to make the stop-time
rule retroactive to certain pre-IIRIRA “orders to show cause” “sheds considerable
light on the question presented” because orders to show cause
did not necessarily include time-and-place information. Post, at 227.
That argument compares apples to oranges. Even if the stop-time rule
sometimes applies retroactively to an order to show cause, that provides
scant support for the dissent's view that, under the new post-IIRIRA statutory
regime, an entirely different document called a “notice to appear,”
which, by statute, must specify the time and place of removal proceedings,
see § 1229(a)(1)(G)(i), need not include such information to trigger the stoptime
rule.
Cite as: 585 U. S. 198 (2018) 215
Opinion of the Court
authority of ” § 1229(a), even if the notice bears none of the
time-and-place information required by that provision. See
Brief for Respondent 24; post, at 224–225.
We disagree. It is, of course, true that “[t]he word `under'
is [a] chameleon” that “ `must draw its meaning from its context.'
” Kucana v. Holder, 558 U. S. 233, 245 (2010) (quoting
Ardestani v. INS, 502 U. S. 129, 135 (1991)). But nothing in
the text or context here supports either the Government's
or the dissent's preferred defnition of “under.” Based on
the plain language and statutory context discussed above, we
think it obvious that the word “under,” as used in the stoptime
rule, can only mean “in accordance with” or “according
to,” for it connects the stop-time trigger in § 1229b(d)(1) to a
“notice to appear” that contains the enumerated time-andplace
information described in § 1229(a)(1)(G)(i). See 18 Oxford
English Dictionary 950 (2d ed. 1989) (defning “under”
as “[i]n accordance with”); Black's Law Dictionary 1525 (6th
ed. 1990) (defning “under” as “according to”). So construed,
the stop-time rule applies only if the Government serves a
“notice to appear” “[i]n accordance with” or “according to”
the substantive time-and-place requirements set forth in
§ 1229(a). See Kirtsaeng v. John Wiley & Sons, Inc., 568
U. S. 519, 530 (2013) (internal quotation marks omitted).
Far from generating any “degree of ambiguity,” post, at
224, the word “under” provides the glue that bonds the stoptime
rule to the substantive time-and-place requirements
mandated by § 1229(a).
C
The Government argues that surrounding statutory provisions
reinforce its preferred reading. See Brief for
Respondent 25–27. It points, for instance, to two separate
provisions relating to in absentia removal orders: § 1229a(b)
(5)(A), which provides that a noncitizen may be removed in
absentia if the Government has provided “written notice
required under paragraph (1) or (2) of section 1229(a)”;
and § 1229a(b)(5)(C)(ii), which provides that, once an in ab216
PEREIRA v. SESSIONS
Opinion of the Court
sentia removal order has been entered, the noncitizen may
seek to reopen the proceeding if, inter alia, he “demonstrates
that [he] did not receive notice in accordance with
paragraph (1) or (2) of section 1229(a).” According to the
Government, those two provisions use the distinct phrases
“required under” and “in accordance with” as shorthand for
a notice that satisfes § 1229(a)(1)'s requirements, whereas
the stop-time rule uses the phrase “under section 1229(a)” to
encompass a different type of notice that does not necessarily
include the information outlined in § 1229(a)(1). See Brief
for Respondent 25–26. That logic is unsound. The Government
essentially argues that phrase 1 (“written notice required
under paragraph (1) . . . of section 1229(a)”) and
phrase 2 (“notice in accordance with paragraph (1) . . . of
section 1229(a)”) can refer to the same type of notice even
though they use entirely different words, but that phrase 3
(“notice to appear under section 1229(a)”) cannot refer to that
same type of notice because it uses words different from
phrases 1 and 2. But the Government offers no convincing
reason why that is so. The far simpler explanation, and the
one that comports with the actual statutory language and
context, is that each of these three phrases refers to notice
satisfying, at a minimum, the time-and-place criteria defned
in § 1229(a)(1).
Equally unavailing is the Government's invocation of
§ 1229a(b)(7). Brief for Respondent 26–27. Under that provision,
a noncitizen who is ordered removed in absentia is
ineligible for various forms of discretionary relief for a 10-
year period if the noncitizen, “at the time of the notice described
in paragraph (1) or (2) of section 1229(a) of [Title 8],
was provided oral notice . . . of the time and place of the
proceedings” and “of the consequences . . . of failing, other
than because of exceptional circumstances, ” to appear.
§ 1229a(b)(7). The Government argues that the express reference
to “ the time and place of the proceedings” in
§ 1229a(b)(7) shows that, when Congress wants to attach
Cite as: 585 U. S. 198 (2018) 217
Opinion of the Court
substantive signifcance to whether a noncitizen is given information
about the specifc “time and place” of a removal
proceeding, it knows exactly how to do so. Brief for Respondent
26–27. But even if § 1229a(b)(7) may impose
harsher consequences on noncitizens who fail to appear at
removal proceedings after having specifcally received oral
notice of the time and place of such proceedings, that reveals
nothing about the distinct question here—i. e., whether Congress
intended the stop-time rule to apply when the Government
fails to provide written notice of the time and place
of removal proceedings. As to that question, the statute
makes clear that Congress fully intended to attach substantive
signifcance to the requirement that noncitizens be given
notice of at least the time and place of their removal proceedings.
A document that fails to include such information is
not a “notice to appear under section 1229(a)” and thus does
not trigger the stop-time rule.
D
Unable to fnd sure footing in the statutory text, the Government
and the dissent pivot away from the plain language
and raise a number of practical concerns. These practical
considerations are meritless and do not justify departing
from the statute's clear text. See Burrage v. United States,
571 U. S. 204, 218 (2014).
The Government, for its part, argues that the “administrative
realities of removal proceedings” render it diffcult to
guarantee each noncitizen a specifc time, date, and place
for his removal proceedings. Brief for Respondent 48.
That contention rests on the misguided premise that the
time-and-place information specifed in the notice to appear
must be etched in stone. That is incorrect. As noted
above, § 1229(a)(2) expressly vests the Government with
power to change the time or place of a noncitizen's removal
proceedings so long as it provides “written notice . . . specifying
. . . the new time or place of the proceedings” and the
218 PEREIRA v. SESSIONS
Opinion of the Court
consequences of failing to appear. § 1229(a)(2); see Tr. of
Oral Arg. 16–19. Nothing in our decision today inhibits
the Government's ability to exercise that statutory authority
after it has served a notice to appear specifying the time and
place of the removal proceedings.
The dissent raises a similar practical concern, which is similarly
misplaced. The dissent worries that requiring the
Government to specify the time and place of removal proceedings,
while allowing the Government to change that information,
might encourage DHS to provide “arbitrary dates
and times that are likely to confuse and confound all who
receive them. ” Post, at 229. The dissent's argument
wrongly assumes that the Government is utterly incapable
of specifying an accurate date and time on a notice to appear
and will instead engage in “arbitrary” behavior. See ibid.
The Court does not embrace those unsupported assumptions.
As the Government concedes, “a scheduling system previously
enabled DHS and the immigration court to coordinate
in setting hearing dates in some cases.” Brief for Respondent
50, n. 15; Brief for National Immigrant Justice
Center as Amicus Curiae 30–31. Given today's advanced
software capabilities, it is hard to imagine why DHS and
immigration courts could not again work together to schedule
hearings before sending notices to appear.
Finally, the dissent's related contention that including a
changeable date would “mislead” and “prejudice” noncitizens
is unfounded. Post, at 228. As already explained, if the
Government changes the date of the removal proceedings, it
must provide written notice to the noncitizen, § 1229(a)(2).
This notice requirement mitigates any potential confusion
that may arise from altering the hearing date. In reality, it
is the dissent's interpretation of the statute that would “confuse
and confound” noncitizens, post, at 229, by authorizing
the Government to serve notices that lack any information
about the time and place of the removal proceedings.
Cite as: 585 U. S. 198 (2018) 219
Kennedy, J., concurring
E
In a last ditch effort to salvage its atextual interpretation,
the Government invokes the alleged purpose and legislative
history of the stop-time rule. Brief for Respondent 37–40.
Even for those who consider statutory purpose and legislative
history, however, neither supports the Government's
atextual position that Congress intended the stop-time rule
to apply when a noncitizen has been deprived notice of the
time and place of his removal proceedings. By the Government's
own account, Congress enacted the stop-time rule to
prevent noncitizens from exploiting administrative delays to
“buy time” during which they accumulate periods of continuous
presence. Id., at 37–38 (citing H. R. Rep. No. 104–469,
pt. 1, p. 122 (1996)). Requiring the Government to furnish
time-and-place information in a notice to appear, however, is
entirely consistent with that objective because, once a proper
notice to appear is served, the stop-time rule is triggered,
and a noncitizen would be unable to manipulate or delay removal
proceedings to “buy time.” At the end of the day,
given the clarity of the plain language, we “apply the statute
as it is written.” Burrage, 571 U. S., at 218.
IV
For the foregoing reasons, the judgment of the Court of
Appeals for the First Circuit is reversed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
Justice Kennedy, concurring.
I agree with the Court's opinion and join it in full.
This separate writing is to note my concern with the way
in which the Court's opinion in Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837 (1984), has
220 PEREIRA v. SESSIONS
Kennedy, J., concurring
come to be understood and applied. The application of that
precedent to the question presented here by various Courts
of Appeals illustrates one aspect of the problem.
The frst Courts of Appeals to encounter the question concluded
or assumed that the notice necessary to trigger the
stop-time rule found in 8 U. S. C. § 1229b(d)(1) was not “perfected”
until the immigrant received all the information
listed in § 1229(a)(1). Guamanrrigra v. Holder, 670 F. 3d
404, 410 (CA2 2012) (per curiam); see also Dababneh v. Gonzales,
471 F. 3d 806, 809 (CA7 2006); Garcia-Ramirez v. Gonzales,
423 F. 3d 935, 937, n. 3 (CA9 2005) (per curiam).
That emerging consensus abruptly dissolved not long after
the Board of Immigration Appeals (BIA) reached a contrary
interpretation of § 1229b(d)(1) in Matter of Camarillo,
25 I. & N. Dec. 644 (2011). After that administrative ruling,
in addition to the decision under review here, at least
six Courts of Appeals, citing Chevron, concluded that
§ 1229b(d)(1) was ambiguous and then held that the BIA's
interpretation was reasonable. See Moscoso-Castellanos v.
Lynch, 803 F. 3d 1079, 1083 (CA9 2015); O'Garro v. United
States Atty. Gen., 605 Fed. Appx. 951, 953 (CA11 2015) (per
curiam); Guaman-Yuqui v. Lynch, 786 F. 3d 235, 239–240
(CA2 2015) (per curiam); Gonzalez-Garcia v. Holder, 770
F. 3d 431, 434–435 (CA6 2014); Yi Di Wang v. Holder, 759
F. 3d 670, 674–675 (CA7 2014); Urbina v. Holder, 745 F. 3d
736, 740 (CA4 2014). But see Orozco-Velasquez v. Attorney
General United States, 817 F. 3d 78, 81–82 (CA3 2016). The
Court correctly concludes today that those holdings were
wrong because the BIA's interpretation fnds little support
in the statute's text.
In according Chevron deference to the BIA's interpretation,
some Courts of Appeals engaged in cursory analysis of
the questions whether, applying the ordinary tools of statutory
construction, Congress' intent could be discerned, 467
U. S., at 843, n. 9, and whether the BIA's interpretation was
reasonable, id., at 845. In Urbina v. Holder, for example,
Cite as: 585 U. S. 198 (2018) 221
Alito, J., dissenting
the court stated, without any further elaboration, that “we
agree with the BIA that the relevant statutory provision is
ambiguous.” 745 F. 3d, at 740. It then deemed reasonable
the BIA's interpretation of the statute, “for the reasons the
BIA gave in that case.” Ibid. This analysis suggests an
abdication of the Judiciary's proper role in interpreting federal
statutes.
The type of refexive deference exhibited in some of these
cases is troubling. And when deference is applied to other
questions of statutory interpretation, such as an agency's interpretation
of the statutory provisions that concern the
scope of its own authority, it is more troubling still. See
Arlington v. FCC, 569 U. S. 290, 327 (2013) (Roberts, C. J.,
dissenting) (“We do not leave it to the agency to decide when
it is in charge”). Given the concerns raised by some Members
of this Court, see, e. g., id., at 312–328; Michigan v.
EPA, 576 U. S. 743, 760–764 (2015) (Thomas, J., concurring);
Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142, 1149–1158
(CA10 2016) (Gorsuch, J., concurring), it seems necessary and
appropriate to reconsider, in an appropriate case, the premises
that underlie Chevron and how courts have implemented
that decision. The proper rules for interpreting statutes
and determining agency jurisdiction and substantive agency
powers should accord with constitutional separation-ofpowers
principles and the function and province of the Judiciary.
See, e. g., Arlington, supra, at 312–316 (Roberts,
C. J., dissenting).
Justice Alito, dissenting.
Although this case presents a narrow and technical issue
of immigration law, the Court's decision implicates the status
of an important, frequently invoked, once celebrated, and
now increasingly maligned precedent, namely, Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467
U. S. 837 (1984). Under that decision, if a federal statute is
ambiguous and the agency that is authorized to implement it
222 PEREIRA v. SESSIONS
Alito, J., dissenting
offers a reasonable interpretation, then a court is supposed
to accept that interpretation. Here, a straightforward application
of Chevron requires us to accept the Government's
construction of the provision at issue. But the Court rejects
the Government's interpretation in favor of one that it regards
as the best reading of the statute. I can only conclude
that the Court, for whatever reason, is simply ignoring
Chevron.
I
As amended, the Immigration and Nationality Act generally
requires the Government to remove nonpermanent resident
aliens who overstay the terms of their admission into
this country. See 8 U. S. C. §§ 1227(a)(1)(B)–(C). But under
certain circumstances, the Government may decide to cancel
their removal instead. See § 1229b. To be eligible for such
relief, an alien must demonstrate that he or she “has been
physically present in the United States for a continuous period
of not less than 10 years.” § 1229b(b)(1)(A). “For purposes
of ” that rule, however, “any period of . . . continuous
physical presence in the United States shall be deemed to
end . . . when the alien is served a notice to appear under
section 1229(a) of this title.” § 1229b(d)(1). That language
acts as a stop-time rule, preventing the continuous-presence
clock from continuing to run once an alien is served with a
notice to appear.
The question presented by this case is whether the stoptime
rule is triggered by service of a notice to appear that
is incomplete in some way. A provision of the amended Immigration
and Nationality Act requires that the Government
serve an alien who it seeks to remove with a notice to appear
“specifying” a list of things, including “[t]he nature of the
proceedings against the alien,” “[t]he legal authority under
which the proceedings are conducted,” “[t]he acts or conduct
alleged to be in violation of law,” “[t]he charges against the
alien and the statutory provisions alleged to have been violated,”
and (what is relevant here) “[t]he time and place at
Cite as: 585 U. S. 198 (2018) 223
Alito, J., dissenting
which the proceedings will be held.” §§ 1229(a)(1)(A), (B),
(C), (D), (G)(i).
Petitioner Wescley Pereira is a Brazilian citizen who entered
the United States lawfully in 2000 but then illegally
overstayed his nonimmigrant visa. In 2006, the Government
caused him to be served in person with a document
styled as a notice to appear for removal proceedings. Pereira
concedes that he overstayed his visa and is thus removable,
but he argues that he is nonetheless eligible for cancellation
of removal because he has now been in the country
continuously for more than 10 years. He contends that the
notice served on him in 2006 did not qualify as a notice to
appear because it lacked one piece of information that such
a notice is supposed to contain, namely, the time at which his
removal proceedings were to be held. Thus, Pereira contends,
that notice did not trigger the stop-time rule, and the
clock continued to run.
The Board of Immigration Appeals (BIA) has rejected this
interpretation of the stop-time rule in the past. It has held
that “[a]n equally plausible reading” is that the stop-time
rule “merely specifes the document the [Government] must
serve on the alien to trigger the `stop-time' rule and does
not impose substantive requirements for a notice to appear
to be effective in order for that trigger to occur.” Matter
of Camarillo, 25 I. & N. Dec. 644, 647 (2011). It therefore
held in this case that Pereira is ineligible for cancellation
of removal.
II
A
Pereira, on one side, and the Government and the BIA, on
the other, have a quasi-metaphysical disagreement about the
meaning of the concept of a notice to appear. Is a notice to
appear a document that contains certain essential characteristics,
namely, all the information required by § 1229(a)(1), so
that any notice that omits any of that information is not a
224 PEREIRA v. SESSIONS
Alito, J., dissenting
“notice to appear” at all? Or is a notice to appear a document
that is conventionally called by that name, so that a
notice that omits some of the information required by
§ 1229(a)(1) may still be regarded as a “notice to appear”?
Picking the better of these two interpretations might have
been a challenge in the frst instance. But the Court did
not need to decide that question, for under Chevron we are
obligated to defer to a Government agency's interpretation
of the statute that it administers so long as that interpretation
is a “ `permissible' ” one. INS v. Aguirre-Aguirre, 526
U. S. 415, 424 (1999). All that is required is that the Government's
view be “reasonable”; it need not be “the only possible
interpretation, nor even the interpretation deemed most reasonable
by the courts.” Entergy Corp. v. Riverkeeper, Inc.,
556 U. S. 208, 218 (2009). Moreover, deference to the Government's
interpretation “is especially appropriate in the immigration
context” because of the potential foreign-policy
implications. Aguirre-Aguirre, supra, at 425. In light of
the relevant text, context, statutory history, and statutory
purpose, there is no doubt that the Government's interpretation
of the stop-time rule is indeed permissible under
Chevron.
B
By its terms, the stop-time rule is consistent with the Government's
interpretation. As noted, the stop-time rule provides
that “any period of . . . continuous physical presence in
the United States shall be deemed to end . . . when the alien
is served a notice to appear under section 1229(a) of this
title.” § 1229b(d)(1). A degree of ambiguity arises from
Congress's use of the word “under,” for as the Court recognizes,
“ `[t]he word “under” is [a] chameleon,' ” ante, at 215,
having “ `many dictionary defnitions' ” and no “uniform, consistent
meaning,” Kirtsaeng v. John Wiley & Sons, Inc., 568
U. S. 519, 531 (2013). Everyone agrees, however, that
“under” is often used to mean “authorized by.” See, e. g.,
Webster's New World College Dictionary 1453 (3d ed. 1997)
Cite as: 585 U. S. 198 (2018) 225
Alito, J., dissenting
(“authorized . . . by”); American Heritage Dictionary 1945
(3d ed. 1992) (“[w]ith the authorization of ”); see also Brief
for Respondent 24 (agreeing that “under” can mean “subject
to,” “governed by,” or “issued under the authority of ”); Brief
for Petitioner 28. And when the term is used in this way,
it does not necessarily mean that the act done pursuant to
that authorization was done in strict compliance with the
terms of the authorization. For example, one might refer to
a litigant's disclosure “under” Rule 26(a) of the Federal Rules
of Civil Procedure even if that disclosure did not comply with
Rule 26(a) in every respect. Or one might refer to regulations
promulgated “under” a statute even if a court later
found those regulations inconsistent with the statute's text.
That use of the word “under” perfectly fts the Government's
interpretation of the stop-time rule. The Government
served Pereira with a notice to appear “under”
§ 1229(a) in the sense that the notice was “authorized by”
that provision, which states that a notice to appear “shall be
given” to an alien in a removal proceeding and outlines several
rules governing such notices. On that reasonable reading,
the phrase “under section 1229(a)” acts as shorthand for
the type of document governed by § 1229(a).
C
That interpretation is bolstered by the stop-time rule's
cross-reference to “section 1229(a).” § 1229b(d)(1). Pereira
interprets that cross-reference as picking up every substantive
requirement that applies to notices to appear.
But those substantive requirements are found only in
§ 1229(a)(1). Thus, the cross-reference to “section 1229(a),”
as opposed to “section 1229(a)(1),” tends to undermine Pereira's
interpretation, because if Congress had meant for the
stop-time rule to incorporate the substantive requirements
located in § 1229(a)(1), it presumably would have referred
specifcally to that provision and not more generally to “section
1229(a).” We normally presume that “[w]hen Congress
226 PEREIRA v. SESSIONS
Alito, J., dissenting
want[s] to refer only to a particular subsection or paragraph,
it [says] so,” NLRB v. SW General, Inc., 580 U. S. 288, 300
(2017), and it is instructive that neighboring statutory provisions
in this case are absolutely riddled with such specifc
cross-references.1 In the stop-time rule, however, Congress
chose to insert a broader cross-reference, one that refers to
the general process of serving notices to appear as a whole.
See § 1229(a). Thus, Pereira essentially “wants to cherry pick
from the material covered by the statutory cross-reference.
But if Congress had intended to refer to the defnition in
[§ 1229(a)(1)] alone, it presumably would have done so.”
Cyan, Inc. v. Beaver County Employees Retirement Fund,
583 U. S. 416, 428 (2018).2
D
Statutory history also strongly supports the Government's
argument that a notice to appear should trigger the stoptime
rule even if it fails to include the date and time of the
alien's removal proceeding. When Congress enacted the
stop-time rule, it decreed that the rule should “apply to notices
to appear issued before, on, or after the date of the
enactment of this Act.” Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, § 309(c)(5), 110 Stat.
3009–627. This created a problem: Up until that point,
there was no such thing as a “notice to appear,” so the reference
to “notices to appear issued before . . . this Act” made
little sense. When Congress became aware of the problem,
1 See, e. g., § 1229a(b)(5)(A) (“paragraph (1) . . . of section 1229(a)”);
§ 1229a(b)(5)(C)(ii) (same); § 1229a(b)(7) (same); § 1229a(b)(5)(B) (“address
required under section 1229(a)(1)(F)”); see also § 1229a(b)(7) (referring to
§ 1229(a)(1)(G)(i)'s “time and place” requirement).
2 According to the Court, “the broad reference to § 1229(a) is of no consequence,
because, as even the Government concedes, only paragraph (1)
bears on the meaning of a `notice to appear.' ” Ante, at 209. But that is
precisely the point: If “only paragraph (1) bears on the meaning of a `notice
to appear,' ” then Congress's decision to refer to § 1229(a) more broadly
indicates that it meant to do something other than to pick up the substantive
requirements of § 1229(a)(1).
Cite as: 585 U. S. 198 (2018) 227
Alito, J., dissenting
it responded by clarifying that the stop-time rule should
apply not only to notices to appear, but also “to orders to
show cause . . . issued before, on, or after the date” of
the clarifying amendment's enactment. Nicaraguan Adjustment
and Central American Relief Act, § 203(1), 111 Stat.
2196, as amended, 8 U. S. C. § 1101 note. That clarifcation
sheds considerable light on the question presented here because
orders to show cause did not necessarily include the
date or location of proceedings (even if they otherwise served
a function similar to that now served by notices to appear).
See 8 U. S. C. § 1252b(a)(2)(A) (1994 ed.).
That statutory history supports the Government's interpretation
twice over. First, it demonstrates that when it
comes to triggering the stop-time rule, Congress attached no
particular signifcance to the presence (or absence) of information
about the date and time of a removal proceeding.
Congress was more than happy for the stop-time rule to be
activated either by notices to appear or by orders to show
cause, even though the latter often lacked any information
about the date and time of proceedings.
Second, and even more important, the statutory history
also shows that Congress clearly thought of orders to show
cause as the functional equivalent of notices to appear for
purposes of the stop-time rule. After an initially confusing
reference to “notices to appear” issued before the creation of
the stop-time rule, Congress clarifed that it had meant to
refer to “orders to show cause.” By equating orders to
show cause with notices to appear, Congress indicated that
when the stop-time rule refers to “a notice to appear,” it is
referring to a category of documents that do not necessarily
provide the date and time of a future removal proceeding.3
3 Although the Court charges me with “compar[ing] apples to oranges,”
ante, at 214, n. 9, Congress was the one that equated orders to show cause
and notices to appear for purposes of the stop-time rule. By ignoring
that decision, the Court rewrites the statute to its taste.
228 PEREIRA v. SESSIONS
Alito, J., dissenting
E
Finally, Pereira's contrary interpretation leads to consequences
that clash with any conceivable statutory purpose.
Pereira's interpretation would require the Government to include
a date and time on every notice to appear that it issues.
But at the moment, the Government lacks the ability to do
that with any degree of accuracy. The Department of Homeland
Security sends out the initial notice to appear, but the removal
proceedings themselves are scheduled by the Immigration
Court, which is part of the Department of Justice. See 8
CFR § 1003.18(a) (2018). The Department of Homeland Security
cannot dictate the scheduling of a matter on the docket
of the Immigration Court, and at present, the Department of
Homeland Security generally cannot even access the Immigration
Court's calendar. Camarillo, 25 I. & N. Dec., at 648; Tr.
of Oral Arg. 52–53. The Department of Homeland Security
may thus be hard pressed to include on initial notices to appear
a hearing date that is anything more than a rough estimate
subject to considerable change. See § 1229(a)(2); see also
ante, at 217–218 (disclaiming any effect on the Government's
ability to change initial hearing dates).
Including an estimated and changeable date, however, may
do much more harm than good. See Gonzalez-Garcia v.
Holder, 770 F. 3d 431, 434–435 (CA6 2014). It is likely to
mislead many recipients and to prejudice those who make
preparations on the assumption that the initial date is frm.
And it forces the Government to go through the pointless
exercise of frst including a date that it knows may very well
be altered and then changing it once the real date becomes
clear. Such a system serves nobody's interests.
Statutory interpretation is meant to be “a holistic endeavor,”
and sometimes language “that may seem ambiguous
in isolation” becomes clear because “only one of the permissible
meanings produces a substantive effect that is compatible
with the rest of the law.” United Sav. Assn. of Tex. v. Timbers
of Inwood Forest Associates, Ltd., 484 U. S. 365, 371
Cite as: 585 U. S. 198 (2018) 229
Alito, J., dissenting
(1988). The real-world effects produced by Pereira's interpretation—
arbitrary dates and times that are likely to confuse
and confound all who receive them—illustrate starkly
the merits of the Government's alternative construction.
III
Based on the relevant text, context, statutory history, and
statutory purpose, the Government makes a convincing case
that the stop-time rule can be triggered even by a notice to
appear that omits the date and time of a removal proceeding.
But the Court holds instead that in order “to trigger the
stop-time rule, the Government must serve a notice to appear
that, at the very least, `specif[ies]' the `time and place'
of the removal proceedings.” Ante, at 209. According to
the Court, that conclusion is compelled by the statutory text,
the statutory context, and “common sense.” Ante, at 211.
While the Court's interpretation may be reasonable, the
Court goes much too far in saying that it is the only reasonable
construction.
A
Start with the text. As noted, the stop-time rule provides
that “any period of . . . continuous physical presence in
the United States shall be deemed to end . . . when the alien
is served a notice to appear under section 1229(a). ”
§ 1229b(d)(1). The Court does not dispute that it is entirely
consistent with standard English usage to read this language
as the Government and I do. See ante, at 214–215. It
therefore follows that the stop-time rule itself does not foreclose
the Government's interpretation.
That leaves only § 1229(a)(1), which specifes the information
that a notice to appear must contain. The Court's treatment
of this provision contradicts itself. On the one hand,
the Court insists that this provision is “defnitional” and that
it sets out the essential characteristics without which a notice
is not a notice to appear. Ante, at 213. But on the
other hand, the Court states that it “leaves for another day
230 PEREIRA v. SESSIONS
Alito, J., dissenting
whether a putative notice to appear that omits any of the
other categories of information enumerated in § 1229(a)(1)
triggers the stop-time rule.” Ante, at 208, n. 5. The Court
cannot have it both ways. If § 1229(a)(1) is defnitional and
sets out the essential characteristics of a notice to appear,
then the omission of any required item of information makes
a putative notice to appear a nullity. So if the Court means
what it says—that its interpretation of § 1229(a)(1)'s language
leaves open the consequences of omitting other categories
of information—that is tantamount to admitting that
§ 1229(a)(1) itself cannot foreclose the Government's
interpretation.4
In any event, the Government's interpretation can easily
be squared with the text of § 1229(a)(1). That provision
states that a “written notice (in this section referred to as a
`notice to appear') shall be given in person to the alien . . .
specifying” 10 categories of information, including the “time
and place” of the removal proceeding. § 1229(a)(1) (emphasis
added). According to Pereira, that language cinches the
case against the Government's interpretation: By equating a
“notice to appear” with a “written notice [that] specif[ies]”
the relevant categories of information, § 1229(a)(1) establishes
that a notice lacking any of those 10 pieces of information
cannot qualify as a “notice to appear” and thus cannot
trigger the stop-time rule. In Pereira's eyes, § 1229(a)(1) defnes
what a notice to appear is, and most of the Court's opinion
is to the same effect.
This may be a plausible interpretation of § 1229(a)(1)'s language,
but it is not the only one. It is at least as reasonable
to read that language as simply giving a name to the new
4 Nor can the Court get away with labeling its self-contradictions as
“judicial restraint.” Ante, at 208, n. 5. Either § 1229(a)(1) sets out the
essential characteristics of a notice to appear or it does not; the Court
cannot stop at a halfway point unsupported by either text or logic while
maintaining that its resting place is “clear” in light of the statutory text.
Ante, at 208.
Cite as: 585 U. S. 198 (2018) 231
Alito, J., dissenting
type of notice to which that provision refers. Or to put the
point another way, § 1229(a)(1)'s language can be understood
to defne what makes a notice to appear complete. See
Camarillo, supra, at 647. Under that interpretation, a
notice that omits some of the information required by
§ 1229(a)(1) might still be a “notice to appear.”
We often use language in this way. In everyday life, a
person who sees an old Chevy with three wheels in a junkyard
would still call it a car. Language is often used the
same way in the law. Consider the example of a notice of
appeal. Much like a notice to appear, a notice of appeal must
meet several substantive requirements; all notices of appeal,
for example, “must be signed.” Fed. Rule Civ. Proc. 11(a).
So what happens if a notice of appeal is incomplete in some
way—say, because it is unsigned but otherwise impeccable?
If a court clerk wanted to point out the lack of a signature
to an attorney, the clerk is far more likely to say, “there is a
problem with your notice of appeal,” than to say, “there is
a problem with this document you fled; it's not signed and
therefore I don't know what to call it, but I can't call it a
notice of appeal because it is unsigned.”
Furthermore, just because a legal document is incomplete,
it does not necessarily follow that it is without legal effect.
Consider again the notice of appeal. As a general matter,
an appeal “may be taken” in a civil case “only by fling a
notice of appeal” “within 30 days after entry of the judgment
or order appealed from.” Fed. Rules App. Proc. 3(a),
4(a)(1)(A). While an unsigned notice of appeal does not
meet the substantive requirements set out in Rule 11, in
Becker v. Montgomery, 532 U. S. 757, 763, 768 (2001), this
Court unanimously held that a litigant who fled a timely but
unsigned notice of appeal still beat the 30-day clock for fling
appeals. As we explained, “imperfections in noticing an appeal
should not be fatal where no genuine doubt exists about
who is appealing, from what judgment, to which appellate
court.” Id., at 767.
232 PEREIRA v. SESSIONS
Alito, J., dissenting
If Rule 11 of the Federal Rules of Civil Procedure can be
read in this way, it is not unreasonable to do the same with
§ 1229(a)(1). And in trying to distinguish an empty signature
line on a notice of appeal as a “trivial, ministerial defect,”
ante, at 214, the Court gives the game away by once
again assuming its own conclusion. Whether the omission
of the date and time certain on a notice to appear is essential
for present purposes is the central issue in this case, and the
Court gives no textually based reason to think that it is.
The Government could reasonably conclude that a notice to
appear that omits the date and time of a proceeding is still a
notice to appear (albeit a defective one), much in the same
way that a complaint without the e-mail address of the signer
is still a complaint (albeit a defective one, see Rule 11(a)),
or a clock missing the number “8” is still a clock (albeit a
defective one).
Pereira and the Court are right that § 1229(a)(1) sets out
the substantive requirements for notices to appear, but that
fact alone does not control whether an incomplete notice to
appear triggers the stop-time rule.5
B
With the text of both the stop-time rule and § 1229(a)(1)
irreducibly ambiguous, the Court must next look to two
neighboring provisions to support its conclusion that its interpretation
is the only reasonable one. Neither provision
is suffcient.
The Court frst observes that the second paragraph of
§ 1229(a) allows the Government to move or reschedule a
5 Of course, courts should still demand that the Government justify why
whatever is left off a notice to appear does not deprive it of its essential
character as a “notice to appear.” As the Government rightly concedes,
for example, a blank sheet of paper would not constitute a “notice to appear.”
Tr. of Oral Arg. 39–40; see Brief for Respondent 35–36. But for
all the reasons the Government gives, omission of the date and time of a
future removal proceeding is not, by itself, enough to turn a notice to
appear into something else.
Cite as: 585 U. S. 198 (2018) 233
Alito, J., dissenting
removal proceeding unilaterally and then to inform the
alien of “ the new time or place of the proceedings. ”
§ 1229(a)(2)(A)(i). “By allowing for a `change or postponement'
of the proceedings to a `new time or place,' ” the Court
reasons, “paragraph (2) presumes that the Government has
already served a `notice to appear . . . ' that specifed a time
and place as required.” Ante, at 210.
That is entirely correct—and entirely irrelevant. No one
doubts that § 1229(a)(1) requires that a notice to appear include
the “time and place” of the removal proceeding. See
§ 1229(a)(1)(G)(i). Indeed, that is common ground between
the two parties. See Brief for Petitioner 10–11; Brief for
Respondent 3. Paragraph (2) undoubtedly assumes that notices
to appear will state the “time and place” of the removal
proceeding as required by § 1229(a)(1), but it has nothing to
say about whether the failure to include that information affects
the operation of the stop-time rule. By suggesting
otherwise, the Court is merely reasoning backwards from
its conclusion.
The other provision cited by the Court, § 1229(b)(1), is no
more helpful. As the Court explains, § 1229(b)(1) generally
precludes the Government from scheduling a hearing date
“ `earlier than 10 days after the service of the notice to appear'
” in order to give the alien “ `the opportunity to secure
counsel.' ” Ante, at 210. Unless a notice to appear includes
the time and place of the hearing, the Court frets, “the Government
could serve a document labeled `notice to appear'
without listing the time and location of the hearing and then,
years down the line, provide that information a day before
the removal hearing when it becomes available.” Ibid.
But that remote and speculative possibility depends entirely
on the Immigration Court's allowing a removal proceeding to
go forward only one day after an alien (and the Government)
receives word of a hearing date. See 8 CFR § 1003.18(a).
Even assuming that such an unlikely event were to come to
pass, the court's decision would surely be subject to review
234 PEREIRA v. SESSIONS
Alito, J., dissenting
on appeal. See generally 8 CFR § 1003.1; 8 U. S. C. § 1252.
Regardless, the Court's interpretation of the stop-time rule
would not prevent a similar type of problem from arising.
When the Government sends an initial notice to appear from
now on, it may be forced by the Court's interpretation to
guess that the hearing will take place far in the future, only
to learn shortly afterwards that the hearing is in fact imminent.
An alien lulled into a false sense of security by that
initial notice to appear will have as little meaningful “ `opportunity
to secure counsel' ” and “time to prepare adequately,”
ante, at 210–211, as one who initially received a notice to
appear without any hearing date.
C
Finally, the Court turns to “common sense” to support its
preferred reading of the text. According to the Court, it
should be “obvious” to anyone that “a notice that does not
specify when and where to appear for a removal proceeding
is not a `notice to appear.' ” Ante, at 202, 211. But what
the Court fnds so obvious somehow managed to elude every
Court of Appeals to consider the question save one. See
Moscoso-Castellanos v. Lynch, 803 F. 3d 1079, 1083 (CA9
2015); O'Garro v. United States Atty. Gen., 605 Fed. Appx.
951, 953 (CA11 2015) (per curiam); Guaman-Yuqui v. Lynch,
786 F. 3d 235, 240 (CA2 2015) (per curiam); Gonzalez-Garcia
v. Holder, 770 F. 3d 431, 434–435 (CA6 2014); Yi Di Wang v.
Holder, 759 F. 3d 670, 675 (CA7 2014); Urbina v. Holder, 745
F. 3d 736, 740 (CA4 2014).
That is likely because the Court's “common sense” depends
on a very specifc understanding of the purpose of a notice
to appear. In the Court's eyes, notices to appear serve primarily
as a vehicle for communicating to aliens when and
where they should appear for their removal hearings. That
is certainly a reasonable interpretation with some intuitive
force behind it. But that is not the only possible understanding
or even necessarily the best one. As the Government
reasonably explains, a notice to appear can also be unCite
as: 585 U. S. 198 (2018) 235
Alito, J., dissenting
derstood to serve primarily as a charging document. See
Tr. of Oral Arg. 39–45. Indeed, much of § 1229(a)(1) reinforces
that view through the informational requirements it
imposes on notices to appear. See, e. g., § 1229(a)(1)(A) (“nature
of the proceedings”); § 1229(a)(1)(B) (“legal authority”
for “the proceedings”); § 1229(a)(1)(C) (“acts or conduct alleged”);
§ 1229(a)(1)(D) (“charges against the alien”); ibid.
(“statutory provisions alleged to have been violated”). Interpreted
in this way, a notice to appear hardly runs afoul of
“common sense” by simply omitting the date and time of a
future removal proceeding.6
Today's decision appears even less commonsensical once its
likely consequences are taken into account. As already
noted, going forward the Government will be forced to include
an arbitrary date and time on every notice to appear
that it issues. See supra, at 228. Such a system will only
serve to confuse everyone involved, and the Court offers no
explanation as to why it believes otherwise. Although the
Court expresses surprise at the idea that its opinion will
“ `forc[e]' the Government to guess when and where a hearing
will take place,” ante, at 211, n. 6, it is undisputed that
the Government currently lacks the capability to do anything
other than speculate about the likely date and time of future
6 The Court responds to this point in two ways. First, it faults me for
failing to offer a reason “rooted in the statutory tex[t] for treating timeand-
place information as any less crucial than charging information for
purposes of triggering the stop-time rule.” Ante, at 212, n. 7. But exactly
the same criticism can be leveled against the Court's own reading, which
noticeably fails to offer any reason “rooted in the statutory text” why
time-and-place information should be treated as any more crucial than
charging information for purposes of triggering the stop-time rule. Second,
the Court also observes misleadingly that “there is no reason why a
notice to appear should have only one essential function,” and that a notice
to appear might thus serve the dual purpose of both presenting charges
and informing an alien “when and where to appear.” Ibid. Of course it
might, but it is also equally reasonable to interpret a notice to appear as
serving only one of those functions. Under Chevron, it was the Government—
not this Court—that was supposed to make that interpretive call.
236 PEREIRA v. SESSIONS
Alito, J., dissenting
removal proceedings. See Tr. of Oral Arg. 47–49, 52–53.
At most, we can hope that the Government develops a system
in the coming years that allows it to determine likely
dates and times before it sends out initial notices to appear.
But nothing in either today's decision or the statute can
guarantee such an outcome, so the Court is left crossing its
fngers and hoping for the best. Ante, at 211, n. 6, 218.
* * *
Once the errors and false leads are stripped away, the most
that remains of the Court's argument is a textually permissible
interpretation consistent with the Court's view of “common
sense.” That is not enough to show that the Government's
contrary interpretation is unreasonable. Choosing
between these competing interpretations might have been
diffcult in the frst instance. But under Chevron, that
choice was not ours to make. Under Chevron, this Court
was obliged to defer to the Government's interpretation.
In recent years, several Members of this Court have questioned
Chevron's foundations. See, e. g., ante, at 220–221
(Kennedy, J., concurring); Michigan v. EPA, 576 U. S.
743, 760 (2015) (Thomas, J., concurring); Gutierrez-Brizuela
v. Lynch, 834 F. 3d 1142, 1149 (CA10 2016) (Gorsuch, J., concurring).
But unless the Court has overruled Chevron in a
secret decision that has somehow escaped my attention, it
remains good law.
I respectfully dissent.
OCTOBER TERM, 2017 237
Syllabus
LUCIA et al. v. SECURITIES AND EXCHANGE
COMMISSION
certiorari to the united states court of appeals for
the district of columbia circuit
No. 17–130. Argued April 23, 2018—Decided June 21, 2018
The Securities and Exchange Commission (SEC or Commission) has statutory
authority to enforce the nation's securities laws. One way it can
do so is by instituting an administrative proceeding against an alleged
wrongdoer. Typically, the Commission delegates the task of presiding
over such a proceeding to an administrative law judge (ALJ). The SEC
currently has fve ALJs. Other staff members, rather than the Commission
proper, selected them all. An ALJ assigned to hear an SEC
enforcement action has the “authority to do all things necessary and
appropriate” to ensure a “fair and orderly” adversarial proceeding. 17
CFR §§ 201.111, 200.14(a). After a hearing ends, the ALJ issues an
initial decision. The Commission can review that decision, but if it opts
against review, it issues an order that the initial decision has become
fnal. See § 201.360(d). The initial decision is then “deemed the action
of the Commission.” 15 U. S. C. § 78d–1(c).
The SEC charged petitioner Raymond Lucia with violating certain
securities laws and assigned ALJ Cameron Elliot to adjudicate the case.
Following a hearing, Judge Elliot issued an initial decision concluding
that Lucia had violated the law and imposing sanctions. On appeal to
the SEC, Lucia argued that the administrative proceeding was invalid
because Judge Elliot had not been constitutionally appointed. According
to Lucia, SEC ALJs are “Offcers of the United States” and thus
subject to the Appointments Clause. Under that Clause, only the President,
“Courts of Law,” or “Heads of Departments” can appoint such
“Offcers.” But none of those actors had made Judge Elliot an ALJ.
The SEC and the Court of Appeals for the D. C. Circuit rejected Lucia's
argument, holding that SEC ALJs are not “Offcers of the United
States,” but are instead mere employees—offcials with lesser responsibilities
who are not subject to the Appointments Clause.
Held: The Commission's ALJs are “Offcers of the United States,” subject
to the Appointments Clause. Pp. 244–252.
(a) This Court's decisions in United States v. Germaine, 99 U. S. 508,
and Buckley v. Valeo, 424 U. S. 1, set out the basic framework for distinguishing
between offcers and employees. To qualify as an offcer,
rather than an employee, an individual must occupy a “continuing” posi238
LUCIA v. SEC
Syllabus
tion established by law, Germaine, 99 U. S., at 511, and must “exercis[e]
signifcant authority pursuant to the laws of the United States,” Buckley,
424 U. S., at 126.
In Freytag v. Commissioner, 501 U. S. 868, the Court applied this
framework to “special trial judges” (STJs) of the United States Tax
Court. STJs could issue the fnal decision of the Tax Court in “comparatively
narrow and minor matters.” Id., at 873. In more major matters,
they could preside over the hearing but could not issue a fnal
decision. Instead, they were to “prepare proposed fndings and an opinion”
for a regular Tax Court judge to consider. Ibid. The proceeding
challenged in Freytag was a major one. The losing parties argued on
appeal that the STJ who presided over their hearing was not constitutionally
appointed.
This Court held that STJs are offcers. Citing Germaine, the Freytag
Court frst found that STJs hold a continuing offce established by
law. See 501 U. S., at 881. The Court then considered, as Buckley
demands, the “signifcance” of the “authority” STJs wield. 501 U. S., at
881. The Government had argued that STJs are employees in all cases
in which they could not enter a fnal decision. But the Court thought
that the Government's focus on fnality “ignore[d] the signifcance of
the duties and discretion that [STJs] possess.” Ibid. Describing the
responsibilities involved in presiding over adversarial hearings, the
Court said: STJs “take testimony, conduct trials, rule on the admissibility
of evidence, and have the power to enforce compliance with discovery
orders.” Id., at 881–882. And the Court observed that “[i]n the course
of carrying out these important functions,” STJs “exercise signifcant
discretion.” Id., at 882.
Freytag's analysis decides this case. The Commission's ALJs, like
the Tax Court's STJs, hold a continuing offce established by law. SEC
ALJs “receive[ ] a career appointment,” 5 CFR § 930.204(a), to a position
created by statute, see 5 U. S. C. §§ 556–557, 5372, 3105. And they exercise
the same “signifcant discretion” when carrying out the same “important
functions” as STJs do. Freytag, 501 U. S., at 882. Both sets
of offcials have all the authority needed to ensure fair and orderly adversarial
hearings—indeed, nearly all the tools of federal trial judges.
The Commission's ALJs, like the Tax Court's STJs, “take testimony,”
“conduct trials,” “rule on the admissibility of evidence,” and “have the
power to enforce compliance with discovery orders.” Id., at 881–882.
So point for point from Freytag's list, SEC ALJs have equivalent duties
and powers as STJs in conducting adversarial inquiries.
Moreover, at the close of those proceedings, SEC ALJs issue decisions
much like that in Freytag. STJs prepare proposed fndings and an opinion
adjudicating charges and assessing tax liabilities. Similarly, the
Cite as: 585 U. S. 237 (2018) 239
Syllabus
Commission's ALJs issue initial decisions containing factual fndings,
legal conclusions, and appropriate remedies. And what happens next
reveals that the ALJ can play the more autonomous role. In a major
Tax Court case, a regular Tax Court judge must always review an STJ's
opinion, and that opinion comes to nothing unless the regular judge
adopts it. By contrast, the SEC can decide against reviewing an ALJ's
decision, and when it does so the ALJ's decision itself “becomes fnal”
and is “deemed the action of the Commission.” 17 CFR § 201.360(d)(2);
15 U. S. C. § 78d–1(c). Pp. 244–251.
(b) Judge Elliot heard and decided Lucia's case without a constitutional
appointment. “[O]ne who makes a timely challenge to the constitutional
validity of the appointment of an offcer who adjudicates his
case” is entitled to relief. Ryder v. United States, 515 U. S. 177, 182.
Lucia made just such a timely challenge. And the “appropriate” remedy
for an adjudication tainted with an appointments violation is a new
“hearing before a properly appointed” offcial. Id., at 183, 188. In this
case, that offcial cannot be Judge Elliot, even if he has by now received
a constitutional appointment. Having already both heard Lucia's case
and issued an initial decision on the merits, he cannot be expected to
consider the matter as though he had not adjudicated it before. To cure
the constitutional error, another ALJ (or the Commission itself ) must
hold the new hearing. Pp. 251–252.
868 F. 3d 1021, reversed and remanded.
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Thomas, Alito, and Gorsuch, JJ., joined. Thomas, J.,
fled a concurring opinion, in which Gorsuch, J., joined, post, p. 252.
Breyer, J., fled an opinion concurring in the judgment in part and dissenting
in part, in which Ginsburg and Sotomayor, JJ., joined as to Part
III, post, p. 255. Sotomayor, J., fled a dissenting opinion, in which Ginsburg,
J., joined, post, p. 268.
Mark A. Perry argued the cause for petitioners. With
him on the briefs were Jason Neal, Kellam M. Conover,
Shannon U. Han, and Stephen P. Dent. Deputy Solicitor
General Wall argued the cause for respondent in support of
petitioners. With him on the briefs were Solicitor General
Francisco, Acting Assistant Attorney General Readler,
Deputy Solicitor General Kneedler, Deputy Assistant Attorney
General Mooppan, Allon Kedem, and Joshua M.
Salzman.
240 LUCIA v. SEC
Counsel
Anton Metlitsky, by invitation of the Court, 583 U. S. 1099,
argued the cause as amicus curiae in support of the judgment
below. With him on the brief were Jonathan D.
Hacker, Deanna M. Rice, and Samantha M. Goldstein.*
*Briefs of amici curiae urging reversal were fled for the State of Utah
et al. by Sean D. Reyes, Attorney General of Utah, Tyler R. Green, Solicitor
General, and Stanford E. Purser, Deputy Solicitor General, and by the
Attorneys General for their respective States as follows: Steve Marshall
of Alabama, Leslie Rutledge of Arkansas, Curtis T. Hill, Jr., of Indiana,
Derek Schmidt of Kansas, Jeff Landry of Louisiana, Bill Schuette of Michigan,
Joshua D. Hawley of Missouri, Doug Peterson of Nebraska, Mike
Hunter of Oklahoma, Peter F. Kilmartin of Rhode Island, Alan Wilson of
South Carolina, Ken Paxton of Texas, Brad Schimel of Wisconsin, and
Peter K. Michael of Wyoming; for the Cato Institute by Ilya Shapiro; for
the Chamber of Commerce of the United States of America by Andrew J.
Pincus; for Equity Dealers of America by Ilana H. Eisenstein and Ethan
H. Townsend; for J. S. Oliver Capital Management, L. P., et al. by Andrew
J. Morris; for the New Civil Liberties Alliance by Jonathan F. Mitchell
and Margaret A. Little; for the Pacifc Legal Foundation by Oliver J. Dunford
and Jeffrey W. McCoy; for RD Legal Capital, LLC, et al. by Albert
Giang; for Scholars of Corpus Linguistics by Gene C. Schaerr; for SHOW,
Inc., by David Broiles; for the Washington Legal Foundation by Cory L.
Andrews and Richard A. Samp; for Wing F. Chau by Alex Lipman, Justin
S. Weddle, Ashley L. Baynham, and Stephen A. Best; for Jennifer L. Mascott
by William S. Consovoy and J. Michael Connolly; and for Anthony
Michael Sabino by Mr. Sabino, pro se.
Briefs of amici curiae urging affrmance were fled for the American
Federation of Labor and Congress of Industrial Organizations by Harold
Craig Becker, Lynn K. Rhinehart, and Matthew J. Ginsburg; for the Association
of Administrative Law Judges by Ruthanne M. Deutsch, Hyland
Hunt, and Harold J. Krent; for Constitutional and Administrative Law
Scholars by Brianne J. Gorod, Elizabeth B. Wydra, Ashwin P. Phatak,
Gillian E. Metzger, pro se, and Peter Shane, pro se; for Cornell Securities
Law Clinic by William A. Jacobson; for the National Black Lung Association
by Stephen A. Sanders; for the National Organization of Social Security
Claimants' Representatives by Eric Schnaufer; and for David Zaring
by Katharine M. Mapes.
Briefs of amici curiae were fled for Administrative Law Scholars by
Richard J. Pierce, Jr., Robert Glicksman, Alan B. Morrison, and Jonathan
R. Siegel, all pro se; for the Federal Administrative Law Judges Conference
by John M. Vittone; for the Forum of United States AdministraCite
as: 585 U. S. 237 (2018) 241
Opinion of the Court
Justice Kagan delivered the opinion of the Court.
The Appointments Clause of the Constitution lays out the
permissible methods of appointing “Offcers of the United
States,” a class of government offcials distinct from mere
employees. Art. II, § 2, cl. 2. This case requires us to decide
whether administrative law judges (ALJs) of the Securities
and Exchange Commission (SEC or Commission) qualify
as such “Offcers.” In keeping with Freytag v. Commissioner,
501 U. S. 868 (1991), we hold that they do.
I
The SEC has statutory authority to enforce the nation's
securities laws. One way it can do so is by instituting an
administrative proceeding against an alleged wrongdoer.
By law, the Commission may itself preside over such a proceeding.
See 17 CFR § 201.110 (2017). But the Commission
also may, and typically does, delegate that task to an
ALJ. See ibid.; 15 U. S. C. § 78d–1(a). The SEC currently
has fve ALJs. Other staff members, rather than the Commission
proper, selected them all. See App. to Pet. for Cert.
295a–297a.
An ALJ assigned to hear an SEC enforcement action has
extensive powers—the “authority to do all things necessary
and appropriate to discharge his or her duties” and ensure a
“fair and orderly” adversarial proceeding. §§ 201.111,
200.14(a). Those powers “include, but are not limited to,”
supervising discovery; issuing, revoking, or modifying subpoenas;
deciding motions; ruling on the admissibility of
evidence; administering oaths; hearing and examining witnesses;
generally “[r]egulating the course of ” the proceeding
and the “conduct of the parties and their counsel”; and
imposing sanctions for “[c]ontemptuous conduct” or violations
of procedural requirements. §§ 201.111, 201.180; see
tive Law Judges by Gerald Marvin Bober; and for Urska Velikonja et al.
by Brian Wolfman.
242 LUCIA v. SEC
Opinion of the Court
§§ 200.14(a), 201.230. As that list suggests, an SEC ALJ exercises
authority “comparable to” that of a federal district
judge conducting a bench trial. Butz v. Economou, 438
U. S. 478, 513 (1978).
After a hearing ends, the ALJ issues an “initial decision.”
§ 201.360(a)(1). That decision must set out “fndings and
conclusions” about all “material issues of fact [and] law”; it
also must include the “appropriate order, sanction, relief,
or denial thereof.” § 201.360(b). The Commission can
then review the ALJ's decision, either upon request or
sua sponte. See § 201.360(d)(1). But if it opts against review,
the Commission “issue[s] an order that the [ALJ's]
decision has become fnal.” § 201.360(d)(2). At that point,
the initial decision is “deemed the action of the Commission.”
§ 78d–1(c).
This case began when the SEC instituted an administrative
proceeding against petitioner Raymond Lucia and his
investment company. Lucia marketed a retirement savings
strategy called “Buckets of Money.” In the SEC's view,
Lucia used misleading slideshow presentations to deceive
prospective clients. The SEC charged Lucia under the Investment
Advisers Act, § 80b–1 et seq., and assigned ALJ
Cameron Elliot to adjudicate the case. After nine days of
testimony and argument, Judge Elliot issued an initial decision
concluding that Lucia had violated the Act and imposing
sanctions, including civil penalties of $300,000 and a lifetime
bar from the investment industry. In his decision, Judge
Elliot made factual fndings about only one of the four ways
the SEC thought Lucia's slideshow misled investors. The
Commission thus remanded for factfnding on the other three
claims, explaining that an ALJ's “personal experience with
the witnesses” places him “in the best position to make fndings
of fact” and “resolve any conficts in the evidence.”
App. to Pet. for Cert. 241a. Judge Elliot then made additional
fndings of deception and issued a revised initial decision,
with the same sanctions. See id., at 118a.
Cite as: 585 U. S. 237 (2018) 243
Opinion of the Court
On appeal to the SEC, Lucia argued that the administrative
proceeding was invalid because Judge Elliot had not
been constitutionally appointed. According to Lucia, the
Commission's ALJs are “Offcers of the United States” and
thus subject to the Appointments Clause. Under that
Clause, Lucia noted, only the President, “Courts of Law,” or
“Heads of Departments” can appoint “Offcers.” See Art.
II, § 2, cl. 2. And none of those actors had made Judge Elliot
an ALJ. To be sure, the Commission itself counts as a
“Head[ ] of Department[ ].” Ibid.; see Free Enterprise Fund
v. Public Company Accounting Oversight Bd., 561 U. S. 477,
511–513 (2010). But the Commission had left the task of
appointing ALJs, including Judge Elliot, to SEC staff members.
See supra, at 241. As a result, Lucia contended,
Judge Elliot lacked constitutional authority to do his job.
The Commission rejected Lucia's argument. It held that
the SEC's ALJs are not “Offcers of the United States.” Instead,
they are “mere employees”—offcials with lesser responsibilities
who fall outside the Appointments Clause's
ambit. App. to Pet. for Cert. 87a. The Commission reasoned
that its ALJs do not “exercise signifcant authority
independent of [its own] supervision.” Id., at 88a. Because
that is so (said the SEC), they need no special, high-level
appointment. See id., at 86a.
Lucia's claim fared no better in the Court of Appeals for
the D. C. Circuit. A panel of that court seconded the Commission's
view that SEC ALJs are employees rather than
offcers, and so are not subject to the Appointments Clause.
See 832 F. 3d 277, 283–289 (2016). Lucia then petitioned
for rehearing en banc. The Court of Appeals granted that
request and heard argument in the case. But the ten members
of the en banc court divided evenly, resulting in a per
curiam order denying Lucia's claim. See 868 F. 3d 1021
(2017). That decision conficted with one from the Court of
Appeals for the Tenth Circuit. See Bandimere v. SEC, 844
F. 3d 1168, 1179 (2016).
244 LUCIA v. SEC
Opinion of the Court
Lucia asked us to resolve the split by deciding whether
the Commission's ALJs are “Offcers of the United States
within the meaning of the Appointments Clause.” Pet. for
Cert. i. Up to that point, the Federal Government (as represented
by the Department of Justice) had defended the
Commission's position that SEC ALJs are employees, not offcers.
But in responding to Lucia's petition, the Government
switched sides.1 So when we granted the petition, 583
U. S. 1089 (2018), we also appointed an amicus curiae to defend
the judgment below.2 We now reverse.
II
The sole question here is whether the Commission's ALJs
are “Offcers of the United States” or simply employees of
the Federal Government. The Appointments Clause prescribes
the exclusive means of appointing “Offcers.” Only
the President, a court of law, or a head of department can do
so. See Art. II, § 2, cl. 2.3 And as all parties agree, none
1 In the same certiorari-stage brief, the Government asked us to add a
second question presented: whether the statutory restrictions on removing
the Commission's ALJs are constitutional. See Brief in Response 21.
When we granted certiorari, we chose not to take that step. See 583 U. S.
1089 (2018). The Government's merits brief now asks us again to address
the removal issue. See Brief for United States 39–55. We once more
decline. No court has addressed that question, and we ordinarily await
“thorough lower court opinions to guide our analysis of the merits.” Zivotofsky
v. Clinton, 566 U. S. 189, 201 (2012).
2 We appointed Anton Metlitsky to brief and argue the case, 583 U. S.
1099 (2018), and he has ably discharged his responsibilities.
3 That statement elides a distinction, not at issue here, between “principal”
and “inferior” offcers. See Edmond v. United States, 520 U. S. 651,
659–660 (1997). Only the President, with the advice and consent of the
Senate, can appoint a principal offcer; but Congress (instead of relying on
that method) may authorize the President alone, a court, or a department
head to appoint an inferior offcer. See ibid. Both the Government and
Lucia view the SEC's ALJs as inferior offcers and acknowledge that the
Commission, as a head of department, can constitutionally appoint them.
See Brief for United States 38; Brief for Petitioners 50–51.
Cite as: 585 U. S. 237 (2018) 245
Opinion of the Court
of those actors appointed Judge Elliot before he heard Lucia's
case; instead, SEC staff members gave him an ALJ slot.
See Brief for Petitioners 15; Brief for United States 38; Brief
for Court-Appointed Amicus Curiae 21. So if the Commission's
ALJs are constitutional offcers, Lucia raises a valid
Appointments Clause claim. The only way to defeat his
position is to show that those ALJs are not offcers at all,
but instead non-offcer employees—part of the broad swath
of “lesser functionaries” in the Government's workforce.
Buckley v. Valeo, 424 U. S. 1, 126, n. 162 (1976) (per curiam).
For if that is true, the Appointments Clause cares not a whit
about who named them. See United States v. Germaine, 99
U. S. 508, 510 (1879).
Two decisions set out this Court's basic framework for distinguishing
between offcers and employees. Germaine
held that “civil surgeons” (doctors hired to perform various
physical exams) were mere employees because their duties
were “occasional or temporary” rather than “continuing and
permanent.” Id., at 511–512. Stressing “ideas of tenure
[and] duration,” the Court there made clear that an individual
must occupy a “continuing” position established by law
to qualify as an offcer. Id., at 511. Buckley then set out
another requirement, central to this case. It determined
that members of a federal commission were offcers only
after fnding that they “exercis[ed] signifcant authority pursuant
to the laws of the United States.” 424 U. S., at 126.
The inquiry thus focused on the extent of power an individual
wields in carrying out his assigned functions.
Both the amicus and the Government urge us to elaborate
on Buckley's “signifcant authority” test, but another of our
precedents makes that project unnecessary. The standard
is no doubt framed in general terms, tempting advocates to
add whatever glosses best suit their arguments. See Brief
for Amicus Curiae 14 (contending that an individual wields
“signifcant authority” when he has “(i) the power to bind
the government or private parties (ii) in her own name
246 LUCIA v. SEC
Opinion of the Court
rather than in the name of a superior offcer”); Reply Brief
for United States 2 (countering that an individual wields that
authority when he has “the power to bind the government
or third parties on signifcant matters” or to undertake other
“important and distinctively sovereign functions”). And
maybe one day we will see a need to refne or enhance the
test Buckley set out so concisely. But that day is not this
one, because in Freytag v. Commissioner, 501 U. S. 868
(1991), we applied the unadorned “signifcant authority” test
to adjudicative offcials who are near-carbon copies of the
Commission's ALJs. As we now explain, our analysis there
(sans any more detailed legal criteria) necessarily decides
this case.
The offcials at issue in Freytag were the “special trial
judges” (STJs) of the United States Tax Court. The authority
of those judges depended on the signifcance of the tax
dispute before them. In “comparatively narrow and minor
matters,” they could both hear and defnitively resolve a case
for the Tax Court. Id., at 873. In more major matters,
they could preside over the hearing, but could not issue the
fnal decision; instead, they were to “prepare proposed fndings
and an opinion” for a regular Tax Court judge to consider.
Ibid. The proceeding challenged in Freytag was a
major one, involving $1.5 billion in alleged tax defciencies.
See id., at 871, n. 1. After conducting a 14-week trial, the
STJ drafted a proposed decision in favor of the Government.
A regular judge then adopted the STJ's work as the opinion
of the Tax Court. See id., at 872. The losing parties
argued on appeal that the STJ was not constitutionally
appointed.
This Court held that the Tax Court's STJs are offcers, not
mere employees. Citing Germaine, the Court frst found
that STJs hold a continuing offce established by law. See
501 U. S., at 881. They serve on an ongoing, rather than a
“temporary [or] episodic[,] basis”; and their “duties, salary,
and means of appointment” are all specifed in the Tax Code.
Cite as: 585 U. S. 237 (2018) 247
Opinion of the Court
Ibid. The Court then considered, as Buckley demands, the
“signifcance” of the “authority” STJs wield. 501 U. S., at
881. In addressing that issue, the Government had argued
that STJs are employees, rather than offcers, in all cases
(like the one at issue) in which they could not “enter a fnal
decision.” Ibid. But the Court thought the Government's
focus on fnality “ignore[d] the signifcance of the duties and
discretion that [STJs] possess.” Ibid. Describing the responsibilities
involved in presiding over adversarial hearings,
the Court said: STJs “take testimony, conduct trials,
rule on the admissibility of evidence, and have the power to
enforce compliance with discovery orders.” Id., at 881–882.
And the Court observed that “[i]n the course of carrying
out these important functions, the [STJs] exercise signifcant
discretion.” Id., at 882. That fact meant they were offcers,
even when their decisions were not fnal.4
Freytag says everything necessary to decide this case. To
begin, the Commission's ALJs, like the Tax Court's STJs,
hold a continuing offce established by law. See id., at 881.
Indeed, everyone here—Lucia, the Government, and the
amicus—agrees on that point. See Brief for Petitioners 21;
Brief for United States 17–18, n. 3; Brief for Amicus Curiae
4 The Court also provided an alternative basis for viewing the STJs as
offcers. “Even if the duties of [STJs in major cases] were not as signifcant
as we . . . have found them,” we stated, “our conclusion would be
unchanged.” Freytag, 501 U. S., at 882. That was because the Government
had conceded that in minor matters, where STJs could enter fnal
decisions, they had enough “independent authority” to count as offcers.
Ibid. And we thought it made no sense to classify the STJs as offcers
for some cases and employees for others. See ibid. Justice Sotomayor
relies on that back-up rationale in trying to reconcile Freytag with her
view that “a prerequisite to offcer status is the authority” to issue at least
some “fnal decisions.” Post, at 272 (dissenting opinion). But Freytag
has two parts, and its primary analysis explicitly rejects Justice Sotomayor's
theory that fnal decisionmaking authority is a sine qua non of
offcer status. See 501 U. S., at 881–882. As she acknowledges, she must
expunge that reasoning to make her reading work. See post, at 272
(“That part of the opinion[ ] was unnecessary to the result”).
248 LUCIA v. SEC
Opinion of the Court
22, n. 7. Far from serving temporarily or episodically, SEC
ALJs “receive[ ] a career appointment.” 5 CFR § 930.204(a)
(2018). And that appointment is to a position created by
statute, down to its “duties, salary, and means of appointment.”
Freytag, 501 U. S., at 881; see 5 U. S. C. §§ 556–557,
5372, 3105.
Still more, the Commission's ALJs exercise the same “signifcant
discretion” when carrying out the same “important
functions” as STJs do. Freytag, 501 U. S., at 882. Both sets
of offcials have all the authority needed to ensure fair and
orderly adversarial hearings—indeed, nearly all the tools of
federal trial judges. See Butz, 438 U. S., at 513; supra, at
241–242. Consider in order the four specifc (if overlapping)
powers Freytag mentioned. First, the Commission's ALJs
(like the Tax Court's STJs) “take testimony.” 501 U. S., at
881. More precisely, they “[r]eceiv[e] evidence” and “[e]xamine
witnesses” at hearings, and may also take pre-hearing
depositions. 17 CFR §§ 201.111(c), 200.14(a)(4); see 5 U. S. C.
§ 556(c)(4). Second, the ALJs (like STJs) “conduct trials.”
501 U. S., at 882. As detailed earlier, they administer oaths,
rule on motions, and generally “regulat[e] the course of ” a
hearing, as well as the conduct of parties and counsel.
§ 201.111; see §§ 200.14(a)(1), (a)(7); supra, at 241. Third, the
ALJs (like STJs) “rule on the admissibility of evidence.”
501 U. S., at 882; see § 201.111(c). They thus critically shape
the administrative record (as they also do when issuing document
subpoenas). See § 201.111(b). And fourth, the ALJs
(like STJs) “have the power to enforce compliance with discovery
orders.” 501 U. S., at 882. In particular, they may
punish all “[c]ontemptuous conduct,” including violations of
those orders, by means as severe as excluding the offender
from the hearing. See § 201.180(a)(1). So point for point—
straight from Freytag's list—the Commission's ALJs have
equivalent duties and powers as STJs in conducting adversarial
inquiries.
And at the close of those proceedings, ALJs issue decisions
much like that in Freytag—except with potentially more inCite
as: 585 U. S. 237 (2018) 249
Opinion of the Court
dependent effect. As the Freytag Court recounted, STJs
“prepare proposed fndings and an opinion” adjudicating
charges and assessing tax liabilities. 501 U. S., at 873; see
supra, at 246. Similarly, the Commission's ALJs issue decisions
containing factual findings, legal conclusions, and
appropriate remedies. See § 201.360(b); supra, at 242.
And what happens next reveals that the ALJ can play the
more autonomous role. In a major case like Freytag, a regular
Tax Court judge must always review an STJ's opinion.
And that opinion counts for nothing unless the regular judge
adopts it as his own. See 501 U. S., at 873. By contrast,
the SEC can decide against reviewing an ALJ decision at
all. And when the SEC declines review (and issues an order
saying so), the ALJ's decision itself “becomes fnal” and is
“deemed the action of the Commission.” § 201.360(d)(2); 15
U. S. C. § 78d–1(c); see supra, at 242. That last-word capacity
makes this an a fortiori case: If the Tax Court's STJs are
offcers, as Freytag held, then the Commission's ALJs must
be too.
The amicus offers up two distinctions to support the opposite
conclusion. His main argument relates to “the power
to enforce compliance with discovery orders”—the fourth of
Freytag's listed functions. 501 U. S., at 882. The Tax
Court's STJs, he states, had that power “because they had
authority to punish contempt” (including discovery violations)
through fnes or imprisonment. Brief for Amicus Curiae
37; see id., at 37, n. 10 (citing 26 U. S. C. § 7456(c)). By
contrast, he observes, the Commission's ALJs have less capacious
power to sanction misconduct. The amicus's secondary
distinction involves how the Tax Court and Commission,
respectively, review the factfnding of STJs and ALJs. The
Tax Court's rules state that an STJ's fndings of fact “shall be
presumed” correct. Tax Court Rule 183(d). In comparison,
the amicus notes, the SEC's regulations include no such deferential
standard. See Brief for Amicus Curiae 10, 38, n. 11.
But those distinctions make no difference for offcer status.
To start with the amicus's primary point, Freytag refer250
LUCIA v. SEC
Opinion of the Court
enced only the general “power to enforce compliance with
discovery orders,” not any particular method of doing so.
501 U. S., at 882. True enough, the power to toss malefactors
in jail is an especially muscular means of enforcement—
the nuclear option of compliance tools. But just as armies
can often enforce their will through conventional weapons,
so too can administrative judges. As noted earlier, the
Commission's ALJs can respond to discovery violations and
other contemptuous conduct by excluding the wrongdoer
(whether party or lawyer) from the proceedings—a powerful
disincentive to resist a court order. See § 201.180(a)(1)(i);
supra, at 248. Similarly, if the offender is an attorney, the
ALJ can “[s]ummarily suspend” him from representing his
client—not something the typical lawyer wants to invite.
§ 201.180(a)(1)(ii). And fnally, a judge who will, in the end,
issue an opinion complete with factual fndings, legal conclusions,
and sanctions has substantial informal power to ensure
the parties stay in line. Contrary to the amicus's view, all
that is enough to satisfy Freytag's fourth item (even supposing,
which we do not decide, that each of those items is necessary
for someone conducting adversarial hearings to count
as an offcer).
And the amicus's standard-of-review distinction fares just
as badly. The Freytag Court never suggested that the deference
given to STJs' factual fndings mattered to its Appointments
Clause analysis. Indeed, the relevant part of
Freytag did not so much as mention the subject (even though
it came up at oral argument, see Tr. of Oral Arg. 33–41).
And anyway, the Commission often accords a similar deference
to its ALJs, even if not by regulation. The Commission
has repeatedly stated, as it did below, that its ALJs are
in the “best position to make fndings of fact” and “resolve
any conficts in the evidence.” App. to Pet. for Cert. 241a
(quoting In re Nasdaq Stock Market, LLC, SEC Release No.
57741 (Apr. 30, 2008)). (That was why the SEC insisted that
Judge Elliot make factual fndings on all four allegations of
Cite as: 585 U. S. 237 (2018) 251
Opinion of the Court
Lucia's deception. See supra, at 242.) And when factfnding
derives from credibility judgments, as it frequently does,
acceptance is near-automatic. Recognizing ALJs' “personal
experience with the witnesses,” the Commission adopts their
“credibility fnding[s] absent overwhelming evidence to the
contrary.” App. to Pet. for Cert. 241a; In re Clawson, SEC
Release No. 48143 (July 9, 2003). That practice erases the
constitutional line the amicus proposes to draw.
The only issue left is remedial. For all the reasons we
have given, and all those Freytag gave before, the Commission's
ALJs are “Offcers of the United States,” subject to
the Appointments Clause. And as noted earlier, Judge Elliot
heard and decided Lucia's case without the kind of appointment
the Clause requires. See supra, at 244–245.
This Court has held that “one who makes a timely challenge
to the constitutional validity of the appointment of an offcer
who adjudicates his case” is entitled to relief. Ryder v.
United States, 515 U. S. 177, 182–183 (1995). Lucia made
just such a timely challenge: He contested the validity of
Judge Elliot's appointment before the Commission, and continued
pressing that claim in the Court of Appeals and this
Court. So what relief follows? This Court has also held
that the “appropriate” remedy for an adjudication tainted
with an appointments violation is a new “hearing before a
properly appointed” offcial. Id., at 183, 188. And we add
today one thing more. That offcial cannot be Judge Elliot,
even if he has by now received (or receives sometime in the
future) a constitutional appointment. Judge Elliot has already
both heard Lucia's case and issued an initial decision
on the merits. He cannot be expected to consider the matter
as though he had not adjudicated it before.5 To cure the
5 Justice Breyer disagrees with our decision to wrest further proceedings
from Judge Elliot, arguing that “[f]or him to preside once again would
not violate the structural purposes [of] the Appointments Clause.” Post,
at 267 (opinion concurring in judgment in part and dissenting in part). But
our Appointments Clause remedies are designed not only to advance those
252 LUCIA v. SEC
Thomas, J., concurring
constitutional error, another ALJ (or the Commission itself)
must hold the new hearing to which Lucia is entitled.6
We accordingly reverse the judgment of the Court of Appeals
and remand the case for further proceedings consistent
with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Gorsuch joins,
concurring.
I agree with the Court that this case is indistinguishable
from Freytag v. Commissioner, 501 U. S. 868 (1991). If the
special trial judges in Freytag were “Offcers of the United
States,” Art. II, § 2, cl. 2, then so are the administrative law
judges of the Securities and Exchange Commission. Movpurposes
directly, but also to create “[ ]incentive[s] to raise Appointments
Clause challenges.” Ryder v. United States, 515 U. S. 177, 183 (1995).
We best accomplish that goal by providing a successful litigant with a
hearing before a new judge. That is especially so because (as Justice
Breyer points out) the old judge would have no reason to think he did
anything wrong on the merits, see post, at 267—and so could be expected
to reach all the same judgments. But we do not hold that a new offcer is
required for every Appointments Clause violation. As Justice Breyer
suggests, we can give that remedy here because other ALJs (and the
Commission) are available to hear this case on remand. See ibid. If instead
the Appointments Clause problem is with the Commission itself,
so that there is no substitute decisionmaker, the rule of necessity would
presumably kick in and allow the Commission to do the rehearing. See
FTC v. Cement Institute, 333 U. S. 683, 700–703 (1948); 3 K. Davis, Administrative
Law Treatise § 19.9 (2d ed. 1980).
6 While this case was on judicial review, the SEC issued an order “ratif[
ying]” the prior appointments of its AL Js. Order (Nov. 30, 2017), online
at https://www.sec.gov/litigation/opinions/2017/33-10440.pdf (as last visited
June 18, 2018). Lucia argues that the order is invalid. See Brief for
Petitioners 50–56. We see no reason to address that issue. The Commission
has not suggested that it intends to assign Lucia's case on remand to
an ALJ whose claim to authority rests on the ratifcation order. The SEC
may decide to conduct Lucia's rehearing itself. Or it may assign the hearing
to an ALJ who has received a constitutional appointment independent
of the ratifcation.
Cite as: 585 U. S. 237 (2018) 253
Thomas, J., concurring
ing forward, however, this Court will not be able to decide
every Appointments Clause case by comparing it to Freytag.
And, as the Court acknowledges, our precedents in this area
do not provide much guidance. See ante, at 245. While
precedents like Freytag discuss what is suffcient to make
someone an offcer of the United States, our precedents have
never clearly defned what is necessary. I would resolve
that question based on the original public meaning of “Offcers
of the United States.” To the Founders, this term encompassed
all federal civil offcials “ `with responsibility for
an ongoing statutory duty.' ” NLRB v. SW General, Inc.,
580 U. S. 288, 314 (2017) (Thomas, J., concurring); Mascott,
Who Are “Offcers of the United States”? 70 Stan. L. Rev.
443, 564 (2018) (Mascott).1
The Appointments Clause provides the exclusive process
for appointing “offcers of the United States.” See SW General,
supra, at 311 (opinion of Thomas, J.). While principal
offcers must be nominated by the President and confrmed
by the Senate, Congress can authorize the appointment of
“inferior Offcers” by “the President alone,” “the Courts of
Law,” or “the Heads of Departments.” Art. II, § 2, cl. 2.
This alternative process for appointing inferior offcers
strikes a balance between effciency and accountability.
Given the sheer number of inferior offcers, it would be too
burdensome to require each of them to run the gauntlet of
Senate confrmation. See United States v. Germaine, 99
U. S. 508, 509–510 (1879); 2 Records of the Federal Convention
of 1787, pp. 627–628 (M. Farrand ed. 1911). But, by
specifying only a limited number of actors who can appoint
inferior offcers without Senate confrmation, the Appoint-
1 I address only the dividing line between “Officers of the United
States,” who are subject to the Appointments Clause, and nonoffcer employees,
who are not. I express no view on the meaning of “Offce” or
“Offcer” in any other provision of the Constitution, or the difference between
principal offcers and inferior offcers under the Appointments
Clause.
254 LUCIA v. SEC
Thomas, J., concurring
ments Clause maintains clear lines of accountability—
encouraging good appointments and giving the public someone
to blame for bad ones. See The Federalist No. 76, p. 455
(C. Rossiter ed. 1961) (A. Hamilton); Wilson, Lectures on
Law: Government, in 1 The Works of James Wilson 343, 359–
361 (J. Andrews ed. 1896).
The Founders likely understood the term “Offcers of the
United States” to encompass all federal civil offcials who
perform an ongoing, statutory duty—no matter how important
or signifcant the duty. See Mascott 454. “Offcers of
the United States” was probably not a term of art that the
Constitution used to signify some special type of offcial.
Based on how the Founders used it and similar terms, the
phrase “of the United States” was merely a synonym for
“federal,” and the word “Offce[r]” carried its ordinary meaning.
See id., at 471–479. The ordinary meaning of “offcer”
was anyone who performed a continuous public duty. See
id., at 484–507; e. g., United States v. Maurice, 26 F. Cas.
1211, 1214 (No. 15,747) (CC Va. 1823) (defning offcer as
someone in “ `a public charge or employment' ” who performed
a “continuing” duty); 8 Annals of Cong. 2304–2305
(1799) (statement of Rep. Harper) (explaining that the word
offcer “is derived from the Latin word offcium” and “includes
all persons holding posts which require the performance
of some public duty”). For federal offcers, that duty
is “established by Law”—that is, by statute. Art. II, § 2,
cl. 2. The Founders considered individuals to be offcers
even if they performed only ministerial statutory duties—
including recordkeepers, clerks, and tidewaiters (individuals
who watched goods land at a customhouse). See Mascott
484–507. Early congressional practice refected this understanding.
With exceptions not relevant here,2 Congress re-
2 The First Congress exempted certain offcials with ongoing statutory
duties, such as deputies and military offcers, from the requirements of the
Appointments Clause. But these narrow exceptions do not disprove the
Cite as: 585 U. S. 237 (2018) 255
Opinion of Breyer, J.
quired all federal offcials with ongoing statutory duties to
be appointed in compliance with the Appointments Clause.
See id., at 507–545.
Applying the original meaning here, the administrative
law judges of the Securities and Exchange Commission easily
qualify as “Offcers of the United States.” These judges
exercise many of the agency's statutory duties, including issuing
initial decisions in adversarial proceedings. See 15
U. S. C. § 78d–1(a); 17 CFR §§ 200.14, 200.30–9 (2017). As
explained, the importance or signifcance of these statutory
duties is irrelevant. All that matters is that the judges are
continuously responsible for performing them.
In short, the administrative law judges of the Securities
and Exchange Commission are “Officers of the United
States” under the original meaning of the Appointments
Clause. They have “ `responsibility for an ongoing statutory
duty,' ” which is suffcient to resolve this case. SW General,
580 U. S., at 314 (opinion of Thomas, J.). Because the Court
reaches the same conclusion by correctly applying Freytag,
I join its opinion.
Justice Breyer, with whom Justice Ginsburg and Justice
Sotomayor join as to Part III, concurring in the judgment
in part and dissenting in part.
I agree with the Court that the Securities and Exchange
Commission did not properly appoint the Administrative
Law Judge who presided over petitioner Lucia's hearing.
But I disagree with the majority in respect to two matters.
First, I would rest our conclusion upon statutory, not constitutional,
grounds. I believe it important to do so because I
cannot answer the constitutional question that the majority
answers without knowing the answer to a different, embedded
constitutional question, which the Solicitor General
rule, as background principles of founding-era law explain each of them.
See Mascott 480–483, 515–530.
256 LUCIA v. SEC
Opinion of Breyer, J.
urged us to answer in this case: the constitutionality of the
statutory “for cause” removal protections that Congress provided
for administrative law judges. Cf. Free Enterprise
Fund v. Public Company Accounting Oversight Bd., 561
U. S. 477 (2010). Second, I disagree with the Court in respect
to the proper remedy.
I
The relevant statute here is the Administrative Procedure
Act. That Act governs the appointment of administrative
law judges. It provides (as it has, in substance, since its
enactment in 1946) that “[e]ach agency shall appoint as many
administrative law judges as are necessary for” hearings
governed by the Administrative Procedure Act. 5 U. S. C.
§ 3105; see also Administrative Procedure Act, § 11, 60 Stat.
244 (original version, which refers to “examiners” as administrative
law judges were then called). In the case of the
Securities and Exchange Commission, the relevant “agency”
is the Commission itself. But the Commission did not appoint
the Administrative Law Judge who presided over Lucia's
hearing. Rather, the Commission's staff appointed that
Administrative Law Judge, without the approval of the Commissioners
themselves. See ante, at 241; App. to Pet. for
Cert. 298a–299a.
I do not believe that the Administrative Procedure Act
permits the Commission to delegate its power to appoint its
administrative law judges to its staff. We have held that,
for purposes of the Constitution's Appointments Clause, the
Commission itself is a “ `Hea[d]' ” of a “ `Departmen[t].' ”
Free Enterprise Fund, supra, at 512–513. Thus, reading
the statute as referring to the Commission itself, and not to
its staff, avoids a diffcult constitutional question, namely, the
very question that the Court answers today: whether the
Commission's administrative law judges are constitutional
“inferior Offcers” whose appointment Congress may vest
only in the President, the “Courts of Law,” or the “Heads of
Cite as: 585 U. S. 237 (2018) 257
Opinion of Breyer, J.
Departments.” Art. II, § 2, cl. 2; see United States v. Jin
Fuey Moy, 241 U. S. 394, 401 (1916) (“A statute must be construed,
if fairly possible, so as to avoid not only the conclusion
that it is unconstitutional but also grave doubts upon
that score”).
I have found no other statutory provision that would permit
the Commission to delegate the power to appoint its
administrative law judges to its staff. The statute establishing
and governing the Commission does allow the Commission
to “delegate, by published order or rule, any of its
functions to a division of the Commission, an individual Commissioner,
an administrative law judge, or an employee or
employee board.” 15 U. S. C. § 78d–1(a). But this provision
requires a “published order or rule,” and the Commission
here published no relevant delegating order or rule.
Rather, Lucia discovered the Commission's appointment system
for administrative law judges only when the Commission's
enforcement division staff fled an affdavit in this case
describing that staff-based system. See App. to Pet. for
Cert. 295a–299a. Regardless, the same constitutionalavoidance
reasons that should inform our construction of the
Administrative Procedure Act should also lead us to interpret
the Commission's general delegation authority as excluding
the power to delegate to staff the authority to appoint
its administrative law judges, so as to avoid the
constitutional question the Court reaches in this case. See
Jin Fuey Moy, supra, at 401.
The analysis may differ for other agencies that employ administrative
law judges. Each agency's governing statute is
different, and some, unlike the Commission's, may allow the
delegation of duties without a published order or rule. See,
e. g., 42 U. S. C. § 902(a)(7) (applicable to the Social Security
Administration). Similarly, other agencies' administrative
law judges perform distinct functions, and their means of
appointment may therefore not raise the constitutional questions
that inform my reading of the relevant statutes here.
258 LUCIA v. SEC
Opinion of Breyer, J.
The upshot, in my view, is that for statutory, not constitutional,
reasons, the Commission did not lawfully appoint the
Administrative Law Judge here at issue. And this Court
should decide no more than that.
II
A
The reason why it is important to go no further arises
from the holding in a case this Court decided eight years ago,
Free Enterprise Fund, supra. The case concerned statutory
provisions protecting members of the Public Company
Accounting Oversight Board from removal without cause.
The Court held in that case that the Executive Vesting
Clause of the Constitution, Art. II, § 1 (“[t]he executive
Power shall be vested in a President of the United States of
America”), prohibited Congress from providing members of
the Board with “multilevel protection from removal” by the
President. Free Enterprise Fund, 561 U. S., at 484; see id.,
at 514 (“Congress cannot limit the President's authority” by
providing “two levels of protection from removal for those
who . . . exercise signifcant executive power”). But see id.,
at 514–549 (Breyer, J., dissenting). Because, in the Court's
view, the relevant statutes (1) granted the Securities and Exchange
Commissioners protection from removal without
cause, (2) gave the Commissioners sole authority to remove
Board members, and (3) protected Board members from removal
without cause, the statutes provided Board members
with two levels of protection from removal and consequently
violated the Constitution. Id., at 495–498.
In addressing the constitutionality of the Board members'
removal protections, the Court emphasized that the Board
members were “executive offcers”—more specifcally, “inferior
offcers” for purposes of the Appointments Clause.
E. g., id., at 492–495, 504–505. The signifcance of that fact
to the Court's analysis is not entirely clear. The Court said:
Cite as: 585 U. S. 237 (2018) 259
Opinion of Breyer, J.
“The parties here concede that Board members are executive
`Offcers', as that term is used in the Constitution.
We do not decide the status of other Government
employees, nor do we decide whether `lesser functionaries
subordinate to offcers of the United States' must be
subject to the same sort of control as those who exercise
`signifcant authority pursuant to the laws.' ” Id., at 506
(quoting Buckley v. Valeo, 424 U. S. 1, 126, and n. 162
(1976) (per curiam); citations omitted).
Thus, the Court seemed not only to limit its holding to the
Board members themselves, but also to suggest that Government
employees who were not offcers would be distinguishable
from the Board members on that ground alone.
For present purposes, however, the implications of Free
Enterprise Fund's technical-sounding holding about “multilevel
protection from removal” remain potentially dramatic.
561 U. S., at 484. The same statute, the Administrative Procedure
Act, that provides that the “agency” will appoint its
administrative law judges also protects the administrative
law judges from removal without cause. In particular, the
statute says that an
“action may be taken against an administrative law
judge appointed under section 3105 of this title by the
agency in which the administrative law judge is employed
only for good cause established and determined
by the Merit Systems Protection Board on the record
after opportunity for hearing before the Board.” 5
U. S. C. § 7521(a).
As with appointments, this provision constituted an important
part of the Administrative Procedure Act when it was
originally enacted in 1946. See § 11, 60 Stat. 244.
The Administrative Procedure Act thus allows administrative
law judges to be removed only “for good cause” found by
the Merit Systems Protection Board. § 7521(a). And the
President may, in turn, remove members of the Merit Sys260
LUCIA v. SEC
Opinion of Breyer, J.
tems Protection Board only for “ineffciency, neglect of duty,
or malfeasance in offce.” § 1202(d). Thus, Congress seems
to have provided administrative law judges with two levels
of protection from removal without cause—just what Free
Enterprise Fund interpreted the Constitution to forbid in
the case of the Board members.
The substantial independence that the Administrative Procedure
Act's removal protections provide to administrative
law judges is a central part of the Act's overall scheme. See
Ramspeck v. Federal Trial Examiners Conference, 345 U. S.
128, 130 (1953); Wong Yang Sung v. McGrath, 339 U. S. 33, 46
(1950). Before the Administrative Procedure Act, hearing
examiners “were in a dependent status” to their employing
agency, with their classifcation, compensation, and promotion
all dependent on how the agency they worked for rated
them. Ramspeck, 345 U. S., at 130. As a result of that dependence,
“[m]any complaints were voiced against the actions
of the hearing examiners, it being charged that they
were mere tools of the agency concerned and subservient to
the agency heads in making their proposed fndings of fact
and recommendations.” Id., at 131. The Administrative
Procedure Act responded to those complaints by giving administrative
law judges “independence and tenure within the
existing Civil Service system.” Id., at 132; cf. Wong Yang
Sung, supra, at 41–46 (referring to removal protections as
among the Administrative Procedure Act's “safeguards . . .
intended to ameliorate” the perceived “evils” of commingling
of adjudicative and prosecutorial functions in agencies).
If the Free Enterpr ise Fund Court's holding applies
equally to the administrative law judges—and I stress the
“if”—then to hold that the administrative law judges are
“Offcers of the United States” is, perhaps, to hold that their
removal protections are unconstitutional. This would risk
transforming administrative law judges from independent
adjudicators into dependent decisionmakers, serving at the
pleasure of the Commission. Similarly, to apply Free EnterCite
as: 585 U. S. 237 (2018) 261
Opinion of Breyer, J.
prise Fund's holding to high-level civil servants threatens
to change the nature of our merit-based civil service as
it has existed from the time of President Chester Alan
Arthur. See Free Enterprise Fund, 561 U. S., at 540–542
(Breyer, J., dissenting).
I have stressed the words “if ” and “perhaps” in the previous
paragraph because Free Enterprise Fund's holding may
not invalidate the removal protections applicable to the Commission's
administrative law judges even if the judges are
inferior “offcers of the United States” for purposes of the
Appointments Clause. In my dissent in Free Enterprise
Fund, I pointed out that under the majority's analysis, the
removal protections applicable to administrative law
judges—including specifcally the Commission's administrative
law judges—would seem to be unconstitutional. Id., at
542, 587. But the Court disagreed, saying that “none of the
positions [my dissent] identife[d] are similarly situated to the
Board.” Id., at 506.
The Free Enterprise Fund Court gave three reasons why
administrative law judges were distinguishable from the
Board members at issue in that case. First, the Court said
that “[w]hether administrative law judges are necessarily
`Offcers of the United States' is disputed.” Id., at 507, n. 10.
Second, the Court said that “unlike members of the Board,
many administrative law judges of course perform adjudicative
rather than enforcement or policymaking functions, see
[5 U. S. C.] §§ 554(d), 3105, or possess purely recommendatory
powers.” Ibid. And, third, the Court pointed out that the
civil service “employees” and administrative law judges to
whom I referred in my dissent do not “enjoy the same signifcant
and unusual protections from Presidential oversight
as members of the Board.” Id., at 506. The Court added
that the kind of “for cause” protection the statutes provided
for Board members was “unusually high.” Id., at 503.
The majority here removes the frst distinction, for it holds
that the Commission's administrative law judges are inferior
262 LUCIA v. SEC
Opinion of Breyer, J.
“Offcers of the United States.” Ante, at 241. The other
two distinctions remain. See, e. g., Wiener v. United States,
357 U. S. 349, 355–356 (1958) (holding that Congress is free
to protect bodies tasked with “ `adjudicat[ing] according to
law' . . . `from the control or coercive infuence, direct or
indirect,' . . . of either the Executive or the Congress” (quoting
Humphrey's Executor v. United States, 295 U. S. 602, 629
(1935))). But the Solicitor General has nevertheless argued
strongly that we should now decide the constitutionality of
the administrative law judges' removal protections as well
as their means of appointment. And in his view, the administrative
law judges' statutory removal protections violate
the Constitution (as interpreted in Free Enterprise Fund),
unless we construe those protections as giving the Commission
substantially greater power to remove administrative
law judges than it presently has. See Merits Brief for Respondent
45–55.
On the Solicitor General's account, for the administrative
law judges' removal protections to be constitutional, the
Commission itself must have the power to remove administrative
law judges “for failure to follow lawful instructions
or perform adequately.” Id., at 48. The Merit Systems
Protection Board would then review only the Commission's
factfnding, and not whether the facts (as found) count as
“good cause” for removal. Id., at 52–53. This technicalsounding
standard would seem to weaken the administrative
law judges' “for cause” removal protections considerably, by
permitting the Commission to remove an administrative law
judge with whose judgments it disagrees—say, because the
judge did not fnd a securities-law violation where the Commission
thought there was one, or vice versa. In such cases,
the law allows the Commission to overrule an administrative
law judge's fndings, for the decision is ultimately the Commission's.
See 15 U. S. C. § 78d–1(b). But it does not allow
the Commission to fre the administrative law judge. See 5
U. S. C. § 7521.
Cite as: 585 U. S. 237 (2018) 263
Opinion of Breyer, J.
And now it should be clear why the application of Free
Enterprise Fund to administrative law judges is important.
If that decision does not limit or forbid Congress' statutory
“for cause” protections, then a holding that the administrative
law judges are “inferior Offcers” does not confict with
Congress' intent as revealed in the statute. But, if the holding
is to the contrary, and more particularly if a holding that
administrative law judges are “inferior Offcers” brings with
it application of Free Enterprise Fund's limitation on “for
cause” protections from removal, then a determination that
administrative law judges are, constitutionally speaking, “inferior
Offcers” would directly confict with Congress' intent,
as revealed in the statute. In that case, it would be clear to
me that Congress did not intend that consequence, and that
it therefore did not intend to make administrative law judges
“inferior Offcers” at all.
B
Congress' intent on the question matters, in my view, because
the Appointments Clause is properly understood to
grant Congress a degree of leeway as to whether particular
Government workers are offcers or instead mere employees
not subject to the Appointments Clause. The words “by
Law” appear twice in the Clause. It says that the President
(“with the Advice and Consent of the Senate”) shall appoint
“Ambassadors, other public Ministers and Consuls, Judges of
the supreme Court, and all other Offcers of the United
States, . . . which shall be established by Law.” Art. II, § 2,
cl. 2 (emphasis added). It then adds that “Congress may by
Law vest the Appointment of such inferior Offcers, as they
think proper, in the President alone, in the Courts of Law,
or in the Heads of Departments.” Ibid. (emphasis added).
The use of the words “by Law” to describe the establishment
and means of appointment of “Offcers of the United
States,” together with the fact that Article I of the Constitution
vests the legislative power in Congress, suggests that
(other than the offcers the Constitution specifcally lists)
264 LUCIA v. SEC
Opinion of Breyer, J.
Congress, not the Judicial Branch alone, must play a major
role in determining who is an “Offce[r] of the United States.”
And Congress' intent in this specifc respect is often highly
relevant. Congress' leeway is not, of course, absolute—it
may not, for example, say that positions the Constitution itself
describes as “Offcers” are not “Offcers.” But given the
constitutional language, the Court, when deciding whether
other positions are “Offcers of the United States” under the
Appointments Clause, should give substantial weight to Congress'
decision.
How is the Court to decide whether Congress intended
that the holder of a particular Government position count as
an “Offce[r] of the United States”? Congress might, of
course, write explicitly into the statute that the employee
“is an offcer of the United States under the Appointments
Clause,” but an explicit phrase of this kind is unlikely to
appear. If it does not, then I would approach the question
like any other diffcult question of statutory interpretation.
Several considerations, among others, are likely to be relevant.
First, as the Court said in Freytag v. Commissioner,
501 U. S. 868, 881 (1991), and repeats today, ante, at 245,
where Congress grants an appointee “ `signifcant authority
pursuant to the laws to the United States,' ” that supports
the view that (but should not determinatively decide that)
Congress made that appointee an “Offce[r] of the United
States.” Freytag, supra, at 881 (quoting Buckley, 424 U. S.,
at 126); see also United States v. Germaine, 99 U. S. 508, 511
(1879) (holding that the term “offcer” “embraces the ideas of
tenure, duration, emolument, and duties”). The means of appointment
that Congress chooses is also instructive. Where
Congress provides a method of appointment that mimics a
method the Appointments Clause allows for “Offcers,” that
fact too supports the view that (but does not determinatively
decide that) Congress viewed the position as one to be held
by an “Offcer,” and vice versa. See id., at 509–511. And
the Court's decision in Free Enterprise Fund suggests a
Cite as: 585 U. S. 237 (2018) 265
Opinion of Breyer, J.
third indication of “Offcer” status—did Congress provide
the position with removal protections that would be unconstitutional
if provided for an “Offcer”? See 561 U. S., at
514. That fact would support (but again not be determinative
of) the opposite view—that Congress did not intend to
confer “inferior Offcer” status on the position.
As I said, these statutory features, while highly relevant,
need not always prove determinative. The vast number of
different civil service positions, with different tasks, different
needs, and different requirements for independence,
mean that this is not the place to lay down bright-line rules.
Rather, as this Court has said, “[t]he versatility of circumstances
often mocks a natural desire for defnitiveness” in
this area. Wiener, 357 U. S., at 352.
No case from this Court holds that Congress lacks this sort
of constitutional leeway in determining whether a particular
Government position will be flled by an “Offce[r] of the
United States.” To the contrary, while we have repeatedly
addressed whether particular offcials are “Offcers,” in all
cases but one, we have upheld the appointment procedures
Congress enacted as consistent with the Appointments
Clause. See, e. g., Edmond v. United States, 520 U. S. 651,
666 (1997) (holding that Congress' appointment procedure for
military court judges “is in conformity with the Appointments
Clause of the Constitution”); Freytag, supra, at 888–
891 (same as to special trial judges of the Tax Court); Rice
v. Ames, 180 U. S. 371, 378 (1901) (same as to district court
“commissioners”); Ex parte Siebold, 100 U. S. 371, 397–398
(1880) (same as to “supervisors of election”). But see Buckley,
supra, at 124–137.
The one exception was Buckley, 424 U. S., at 124–137, in
which the Court set aside Congress' prescribed appointment
method for some members of the Federal Election Commission—
appointment by Congress itself—as inconsistent with
the Appointments Clause. But Buckley involved Federal
Election Commission members with enormous powers.
266 LUCIA v. SEC
Opinion of Breyer, J.
They had “primary and substantial responsibility for administering
and enforcing the” Federal Election Campaign Act
of 1971, id., at 109, an “intricate statutory scheme . . . to
regulate federal election campaigns,” id., at 12. They had
“extensive rulemaking and adjudicative powers,” id., at 110;
the power to enforce the law through civil lawsuits, id., at
111; and the power to disqualify a candidate from running
for federal offce, id., at 112–113. Federal Election Commissioners
thus had powers akin to the “principal Offcer[s]” of
an Executive Department, whom the Constitution expressly
refers to as “Offcers,” see Art. II, § 2, cl. 1. It is not surprising
that Congress exceeded any leeway the Appointments
Clause granted when it deviated from the Clause's
appointments' methods in respect to an offce with powers
very similar to those of the Offcers listed in the Constitution
itself.
Thus, neither Buckley nor any other case forecloses an interpretation
of the Appointments Clause that focuses principally
on whether the relevant statutes show that Congress
intended that a particular Government position be held by
an “Offce[r] of the United States.” Adopting such an approach,
I would not answer the question whether the Securities
and Exchange Commission's administrative law judges
are constitutional “Offcers” without frst deciding the preexisting
Free Enterprise Fund question—namely, what effect
that holding would have on the statutory “for cause”
removal protections that Congress provided for administrative
law judges. If, for example, Free Enterprise Fund
means that saying administrative law judges are “inferior
Offcers” will cause them to lose their “for cause” removal
protections, then I would likely hold that the administrative
law judges are not “Offcers,” for to say otherwise would be
to contradict Congress' enactment of those protections in the
Administrative Procedure Act. In contrast, if Free Enterprise
Fund does not mean that an administrative law judge
(if an “Offce[r] of the United States”) would lose “for cause”
Cite as: 585 U. S. 237 (2018) 267
Opinion of Breyer, J.
protections, then it is more likely that interpreting the Administrative
Procedure Act as conferring such status would
not run contrary to Congress' intent. In such a case, I
would more likely hold that, given the other features of the
Administrative Procedure Act, Congress did intend to make
administrative law judges inferior “Offcers of the United
States.”
III
Separately, I also disagree with the majority's conclusion
that the proper remedy in this case requires a hearing before
a different administrative law judge. Ante, at 251–252.
The Securities and Exchange Commission has now itself appointed
the Administrative Law Judge in question, and I see
no reason why he could not rehear the case. After all, when
a judge is reversed on appeal and a new trial ordered, typically
the judge who rehears the case is the same judge who
heard it the frst time. The reversal here is based on a technical
constitutional question, and the reversal implies no criticism
at all of the original judge or his ability to conduct
the new proceedings. For him to preside once again would
not violate the structural purposes that we have said the
Appointments Clause serves, see Freytag, 501 U. S., at 878,
nor would it, in any obvious way, violate the Due Process
Clause.
Regardless, this matter was not addressed below and has
not been fully argued here. I would, at a minimum, ask the
Court of Appeals to examine it on remand rather than decide
it here now. That is especially so because the majority
seems to state a general rule that a different “Offcer” must
always preside after an Appointments Clause violation. In
a case like this one, that is a relatively minor imposition,
because the Commission has other administrative law
judges. But in other cases—say, a case adjudicated by an
improperly appointed (but since reappointed) Commission itself—
the “Offcer” in question may be the only such “Offcer,”
so that no substitute will be available. The majority
268 LUCIA v. SEC
Sotomayor, J., dissenting
suggests that in such cases, the “rule of necessity” may
excuse compliance with its newfound different-“Offcer” requirement.
Ante, at 251–252, n. 5. But that still does not
explain why the Constitution would require a hearing before
a different “Offcer” at all.
* * *
The Court's decision to address the Appointments Clause
question separately from the constitutional removal question
is problematic. By considering each question in isolation,
the Court risks (should the Court later extend Free Enterprise
Fund) unraveling, step by step, the foundations of the
Federal Government's administrative adjudication system as
it has existed for decades, and perhaps of the merit-based
civil service system in general. And the Court risks doing
so without considering that potential consequence. For
these reasons, I concur in the judgment in part and, with
respect, I dissent in part.
Justice Sotomayor, with whom Justice Ginsburg
joins, dissenting.
The Court today and scholars acknowledge that this
Court's Appointments Clause jurisprudence offers little
guidance on who qualifes as an “Offcer of the United
States.” See, e. g., ante, at 245 (“The standard is no doubt
framed in general terms, tempting advocates to add whatever
glosses best suit their arguments”); Plecnik, Offcers
Under the Appointments Clause, 11 Pitt. Tax Rev. 201, 204
(2014). The lack of guidance is not without consequence.
“[Q]uestions about the Clause continue to arise regularly
both in the operation of the Executive Branch and in proposed
legislation.” 31 Opinion of Offce of Legal Counsel
73, 76 (2007) (Op. OLC). This confusion can undermine the
reliability and fnality of proceedings and result in wasted
resources. See ante, at 251–252 (opinion of the Court) (orderCite
as: 585 U. S. 237 (2018) 269
Sotomayor, J., dissenting
ing the Commission to grant petitioners a new administrative
hearing).
As the majority notes, see ante, at 245, this Court's decisions
currently set forth at least two prerequisites to offcer
status: (1) An individual must hold a “continuing” offce established
by law, United States v. Germaine, 99 U. S. 508,
511–512 (1879), and (2) an individual must wield “signifcant
authority,” Buckley v. Valeo, 424 U. S. 1, 126 (1976) (per curiam).
The frst requirement is relatively easy to grasp; the
second, less so. To be sure, to exercise “signifcant authority,”
the person must wield considerable powers in comparison
to the average person who works for the Federal Government.
As this Court has noted, the vast majority of
those who work for the Federal Government are not “Offcers
of the United States.” See Free Enterprise Fund v.
Public Company Accounting Oversight Bd., 561 U. S. 477,
506, n. 9 (2010) (indicating that well over 90% of those
who render services to the Federal Government and are paid
by it are not constitutional offcers). But this Court's decisions
have yet to articulate the types of powers that will
be deemed significant enough to constitute “significant
authority.”
To provide guidance to Congress and the Executive
Branch, I would hold that one requisite component of “signifcant
authority” is the ability to make fnal, binding decisions
on behalf of the Government. Accordingly, a person
who merely advises and provides recommendations to an offcer
would not herself qualify as an offcer.
There is some historical support for such a requirement.
For example, in 1822, the Supreme Judicial Court of Maine
opined in the “fullest early explication” of the meaning of an
“ `offce,' ” that “ `the term “offce” implies a delegation of a
portion of the sovereign power to, and possession of it by the
person flling the offce,' ” that “ `in its effects[,] . . . will bind
the rights of others.' ” 31 Op. OLC 83 (quoting 3 Greenl.
270 LUCIA v. SEC
Sotomayor, J., dissenting
(Me.) 481, 482). In 1899, a Report of the Judiciary Committee
of the House of Representatives noted that “the creation
and conferring of an offce involves a delegation to the individual
of . . . sovereign functions,” i. e., “the power to . . .
legislate, . . . execute law, or . . . hear and determine judicially
questions submitted.” 1 A. Hinds, Precedents of the House
of Representatives of the United States 607 (1907). Those
who merely assist others in exercising sovereign functions
but who do not have the authority to exercise sovereign powers
themselves do not wield signifcant authority. Id., at
607–608. Consequently, a person who possesses the “mere
power to investigate some particular subject and report
thereon” or to engage in negotiations “without [the] power
to make binding” commitments on behalf of the Government
is not an offcer. Ibid.
Confrming that fnal decisionmaking authority is a prerequisite
to offcer status would go a long way to aiding Congress
and the Executive Branch in sorting out who is an
offcer and who is a mere employee. At the threshold, Congress
and the Executive Branch could rule out as an offcer
any person who investigates, advises, or recommends, but
who has no power to issue binding policies, execute the laws,
or fnally resolve adjudicatory questions.
Turning to the question presented here, it is true that the
administrative law judges (ALJs) of the Securities and Exchange
Commission wield “extensive powers.” Ante, at 241.
They preside over adversarial proceedings that can lead to
the imposition of signifcant penalties on private parties. See
ante, at 242 (noting that the proceedings in the present case
resulted in the imposition of $300,000 in civil penalties, as well
as a lifetime bar from the investment industry). In the hearings
over which they preside, Commission ALJs also exercise
discretion with respect to important matters. See ante, at
241 (discussing Commission ALJs' powers to supervise discovery,
issue subpoenas, rule on the admissibility of eviCite
as: 585 U. S. 237 (2018) 271
Sotomayor, J., dissenting
dence, hear and examine witnesses, and regulate the course
of the proceedings).
Nevertheless, I would hold that Commission ALJs are not
offcers because they lack fnal decisionmaking authority.
As the Commission explained below, the Commission retains
“ `plenary authority over the course of [its] administrative
proceedings and the rulings of [its] law judges.' ” In re
Raymond J. Lucia Cos., SEC Release No. 75837 (Sept. 3,
2015). Commission ALJs can issue only “initial” decisions.
5 U. S. C. § 557(b). The Commission can review any initial
decision upon petition or on its own initiative. 15 U. S. C.
§ 78d–1(b). The Commission's review of an ALJ's initial
decision is de novo. 5 U. S. C. § 557(c). It can “make any
fndings or conclusions that in its judgment are proper and
on the basis of the record.” 17 CFR § 201.411(a) (2017).
The Commission is also in no way confned by the record
initially developed by an ALJ. The Commission can accept
evidence itself or refer a matter to an ALJ to take additional
evidence that the Commission deems relevant or
necessary. See ibid.; § 201.452. In recent years, the Commission
has accepted review in every case in which it
was sought. See R. Jackson, Fact and Fiction: The SEC's
Oversight of Administrative Law Judges (Mar. 9, 2018),
http://clsbluesky.law.columbia.edu/2018/03/09/fact-and-fctionthe-
secs-oversight-of-administrative-law-judges/ (as last
visited June 19, 2018). Even where the Commission does
not review an ALJ's initial decision, as in cases in which no
party petitions for review and the Commission does not act
sua sponte, the initial decision still only becomes fnal
when the Commission enters a fnality order. 17 CFR
§ 201.360(d)(2). And by operation of law, every action taken
by an ALJ “shall, for all purposes, . . . be deemed the action
of the Commission. ” 15 U. S. C. § 78d–1(c) (emphasis
added). In other words, Commission ALJs do not exercise
significant authority because they do not, and cannot,
272 LUCIA v. SEC
Sotomayor, J., dissenting
enter fnal, binding decisions against the Government or
third parties.
The majority concludes that this case is controlled by
Freytag v. Commissioner, 501 U. S. 868 (1991). See ante,
at 245–246. In Freytag, the Court suggested that the Tax
Court's special trial judges (STJs) acted as constitutional offcers
even in cases where they could not enter fnal, binding
decisions. In such cases, the Court noted, the STJs presided
over adversarial proceedings in which they exercised “signifcant
discretion” with respect to “important functions,”
such as ruling on the admissibility of evidence and hearing
and examining witnesses. 501 U. S., at 881–882. That part
of the opinion, however, was unnecessary to the result. The
Court went on to conclude that even if the STJs' duties in
such cases were “not as signifcant as [the Court] found them
to be,” its conclusion “would be unchanged.” Id., at 882.
The Court noted that STJs could enter fnal decisions in certain
types of cases, and that the Government had conceded
that the STJs acted as offcers with respect to those proceedings.
Ibid. Because STJs could not be “offcers for purposes
of some of their duties . . . , but mere employees with
respect to other[s],” the Court held they were offcers in all
respects. Ibid. Freytag is, therefore, consistent with a
rule that a prerequisite to offcer status is the authority, in
at least some instances, to issue fnal decisions that bind the
Government or third parties.*
Because I would conclude that Commission ALJs are not
offcers for purposes of the Appointments Clause, it is not
necessary to reach the constitutionality of their removal protections.
See ante, at 255–256 (Breyer, J., concurring in
judgment in part and dissenting in part). In any event, for
at least the reasons stated in Justice Breyer's opinion, Free
*Even the majority opinion is not inconsistent with such a rule, in that
it appears to conclude, wrongly in my view, that Commission ALJs can at
times render fnal decisions. See ante, at 249.
Cite as: 585 U. S. 237 (2018) 273
Sotomayor, J., dissenting
Enterprise Fund is readily distinguishable from the circumstances
at play here. See ante, at 258–263.
As a fnal matter, although I would conclude that Commission
ALJs are not offcers, I share Justice Breyer's concerns
regarding the Court's choice of remedy, and so I join
Part III of his opinion.
For the foregoing reasons, I respectfully dissent.
274 OCTOBER TERM, 2017
Syllabus
WISCONSIN CENTRAL LTD. et al. v. UNITED
STATES
certiorari to the united states court of appeals for
the seventh circuit
No. 17–530. Argued April 16, 2018—Decided June 21, 2018
As the Great Depression took its toll, struggling railroad pension funds
reached the brink of insolvency. During that time before the rise of the
modern interstate highway system, privately owned railroads employed
large numbers of Americans and provided services vital to the nation's
commerce. To address the emergency, Congress adopted the Railroad
Retirement Tax Act of 1937. That legislation federalized private railroad
pension plans and it remains in force even today. Under the law's
terms, private railroads and their employees pay a tax based on employees'
incomes. In return, the federal government provides employees a
pension often more generous than the social security system supplies
employees in other industries.
This case arises from a peculiar feature of the statute and its history.
At the time of the Act's adoption, railroads compensated employees not
just with money but also with food, lodging, railroad tickets, and the
like. Because railroads typically didn't count these in-kind benefts
when calculating an employee's pension on retirement, neither did Congress
in its new statutory pension scheme. Nor did Congress seek to
tax these in-kind benefts. Instead, it limited its levies to employee
“compensation” and defned that term to capture only “any form of
money remuneration.”
It's this limitation that poses today's question. To encourage employee
performance and to align employee and corporate goals, some
railroads have (like employers in many felds) adopted employee stock
option plans. The government argues that these stock options qualify
as a form of “compensation” subject to taxation under the Act. In its
view, stock options can easily be converted into money and so qualify as
“money remuneration.” The railroads and their employees reply that
stock options aren't “money remuneration” and remind the Court that
when Congress passed the Act it sought to mimic existing industry pension
practices that generally took no notice of in-kind benefts. Who
has the better of it?
Held: Employee stock options are not taxable “compensation” under
the Railroad Retirement Tax Act because they are not “money
remuneration.”
Cite as: 585 U. S. 274 (2018) 275
Syllabus
When Congress adopted the Act in 1937, “money” was understood as
currency “issued by [a] recognized authority as a medium of exchange.”
Pretty obviously, stock options do not fall within that defnition. While
stock can be bought or sold for money, it isn't usually considered a medium
of exchange. Few people value goods and services in terms of
stock, or buy groceries and pay rent with stock. Adding the word “remuneration”
also does not alter the meaning of the phrase. When the
statute speaks of taxing “any form of money remuneration,” it indicates
Congress wanted to tax monetary compensation in any of the many
forms an employer might choose. It does not prove that Congress
wanted to tax things, like stock, that are not money at all.
The broader statutory context points to this conclusion. For example,
the 1939 Internal Revenue Code, adopted just two years later, also
treated “money” and “stock” as different things. See, e. g., § 27(d).
And a companion statute enacted by the same Congress, the Federal
Insurance Contributions Act, taxes “all remuneration,” including benefts
“paid in any medium other than cash.” § 3121(a). The Congress
that enacted both of these pension schemes knew well the difference
between “money” and “all” forms of remuneration, and its choice to use
the narrower term in the context of railroad pensions alone requires
respect, not disregard.
Even the Internal Revenue Service (then the Bureau of Internal Revenue)
seems to have understood all this back in 1938. Shortly after the
Railroad Retirement Tax Act's enactment, the IRS issued a regulation
explaining that the Act taxes “all remuneration in money, or in something
which may be used in lieu of money (scrip and merchandise orders,
for example).” The regulation said the Act covered things like “[s]alaries,
wages, commissions, fees, [and] bonuses.” But the regulation nowhere
suggested that stock was taxable.
In light of these textual and structural clues and others, the Court
thinks it's clear enough that the term “money” unambiguously excludes
“stock.” Pp. 277–283.
856 F. 3d 490, reversed and remanded.
Gorsuch, J., delivered the opinion of the Court, in which Roberts,
C. J., and Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., fled a
dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ.,
joined, post, p. 285.
Thomas H. Dupree, Jr., argued the cause for petitioners.
With him on the briefs were Rajiv Mohan, Richard F. Riley,
276 WISCONSIN CENTRAL LTD. v. UNITED STATES
Opinion of the Court
Jr., William J. McKenna, David T. Ralston, Jr., and Jonathan
W. Garlough.
Rachel P. Kovner argued the cause for the United States.
With her on the brief were Solicitor General Francisco,
Principal Deputy Assistant Attorney General Zuckerman,
Deputy Solicitor General Stewart, Gilbert S. Rothenberg,
Francesca Ugolini, and Ellen Page DelSole.*
Justice Gorsuch delivered the opinion of the Court.
As the Great Depression took its toll, struggling railroad
pension funds reached the brink of insolvency. During that
time before the modern interstate highway system, privately
owned railroads employed large numbers of Americans and
provided services vital to the nation's commerce. To address
the emergency, Congress adopted the Railroad Retirement
Tax Act of 1937. That legislation federalized private
railroad pension plans and it remains in force today. Under
the law's terms, private railroads and their employees pay a
tax based on employees' incomes. 26 U. S. C. §§ 3201(a)–(b),
3221(a)–(b). In return, the federal government provides
employees a pension often more generous than the social security
system supplies employees in other industries. See
Hisquierdo v. Hisquierdo, 439 U. S. 572, 573–575 (1979).
Our case arises from a peculiar feature of the statute and
its history. At the time of the Act's adoption, railroads compensated
employees not just with money but also with food,
lodging, railroad tickets, and the like. Because railroads
typically didn't count these in-kind benefts when calculating
an employee's pension on retirement, neither did Congress
in its new statutory pension scheme. Nor did Congress
seek to tax these in-kind benefits. Instead, it limited
*Briefs of amici curiae urging reversal were fled for the Association
of American Railroads by Daniel Saphire and Janet L. Bartelmay; for
CSX Corporation et al. by Bryan Killian, Mary B. Hevener, Robert R.
Martinelli, Steven P. Johnson, and Stephanie Schuster; and for Norfolk
Southern Corporation by M. Miller Baker and David R. Fuller.
Cite as: 585 U. S. 274 (2018) 277
Opinion of the Court
itself to taxing employee “compensation,” and defned that
term to capture only “any form of money remuneration.”
§ 3231(e)(1).
It's this limitation that poses today's question. To encourage
employee performance and align employee and corporate
goals, some railroads (like employers in many felds) have
adopted employee stock option plans. Typical of many, the
plan before us permits an employee to exercise stock options
in various ways—purchasing stock with her own money and
holding it as an investment; purchasing stock but immediately
selling a portion to fnance the purchase; or purchasing
stock at the option price, selling it all immediately at the
market price, and taking the profts. App. 41–42. The government
argues that stock options like these qualify as a
form of taxable “money remuneration” under the Act because
stock can be easily converted into money. The railroads
reply that stock options aren't “money” at all and remind
us that when Congress passed the Act it sought to
mimic existing industry pension practices that generally took
no notice of in-kind benefts. Who has the better of it?
Courts have divided on the answer, so we agreed to take up
the question. 583 U. S. 1089 (2018).
We start with the key statutory term: “money remuneration.”
As usual, our job is to interpret the words consistent
with their “ordinary meaning . . . at the time Congress
enacted the statute.” Perrin v. United States, 444 U. S. 37,
42 (1979). And when Congress adopted the Act in 1937,
“money” was ordinarily understood to mean currency “issued
by [a] recognized authority as a medium of exchange.” Webster's
New International Dictionary 1583 (2d ed. 1942); see
also 6 Oxford English Dictionary 603 (1st ed. 1933) (“In mod-
[ern] use commonly applied indifferently to coin and to such
promissory documents representing coin (esp. government
and bank notes) as are currently accepted as a medium of
exchange”); Black's Law Dictionary 1200 (3d ed. 1933) (in its
“popular sense, `money' means any currency, tokens, bank278
WISCONSIN CENTRAL LTD. v. UNITED STATES
Opinion of the Court
notes, or other circulating medium in general use as the representative
of value”); Railway Express Agency, Inc. v. Virginia,
347 U. S. 359, 365 (1954) (“[M]oney . . . is a medium of
exchange”). Pretty obviously, stock options do not fall
within that defnition. While stock can be bought or sold
for money, few of us buy groceries or pay rent or value goods
and services in terms of stock. When was the last time you
heard a friend say his new car cost “2,450 shares of Microsoft”?
Good luck, too, trying to convince the Internal Revenue
Service (IRS) to treat your stock options as a medium
of exchange at tax time. See Rev. Rul. 76–350, 1976–2 Cum.
Bull. 396; see also, e. g., In re Boyle's Estate, 2 Cal. App. 2d
234, 236 (1934) (“[T]he word `money' when taken in its ordinary
and grammatical sense does not include corporate
stocks”); Helvering v. Credit Alliance Corp., 316 U. S. 107,
112 (1942) (distinguishing between “money . . . and . . . stock”).
Nor does adding the word “remuneration” alter the calculus.
Of course, “remuneration” can encompass any kind of
reward or compensation, not just money. 8 Oxford English
Dictionary 439. But in the sentence before us, the adjective
“money” modifes the noun “remuneration.” So “money”
limits the kinds of remuneration that will qualify for taxation;
“remuneration” doesn't expand what counts as money.
When the statute speaks of taxing “any form of money remuneration,”
then, it indicates Congress wanted to tax monetary
compensation in any of the many forms an employer
might choose—coins, paper currency, checks, wire transfers,
and the like. It does not prove Congress wanted to tax
things, like stock, that aren't money at all.
The broader statutory context points to the same conclusion
the immediate text suggests. The 1939 Internal Revenue
Code, part of the same title as our statute and adopted
just two years later, expressly treated “money” and “stock”
as different things. Consider a few examples. The Code
described “stock of the corporation” as “property other than
money.” § 27(d). It explained that a corporate distribution
Cite as: 585 U. S. 274 (2018) 279
Opinion of the Court
is taxable when distributed “either (A) in [the company's]
stock . . . or (B) in money.” § 115(f)(2). And it discussed
transfers of “money in addition to . . . stock or securities.”
§ 372(b). While ultimately ruling for the government, even
the Court of Appeals in this case conceded that the 1939
Code “treat[ed] `money' and `stock' as different concepts.”
856 F. 3d 490, 492 (CA7 2017).
That's not all. The same Congress that enacted the Railroad
Retirement Tax Act enacted a companion statute, the
Federal Insurance Contributions Act (FICA), to fund social
security pensions for employees in other industries. And
while the Railroad Retirement Tax Act taxes only “money
remuneration,” FICA taxes “all remuneration”— including
benefts “paid in any medium other than cash.” § 3121(a)
(emphasis added). We usually “presume differences in language
like this convey differences in meaning.” Henson v.
Santander Consumer USA Inc., 582 U. S. 79, 86 (2017).
And that presumption must bear particular strength when
the same Congress passed both statutes to handle much the
same task. See INS v. Cardoza-Fonseca, 480 U. S. 421, 432
(1987). The Congress that enacted both of these pension
schemes knew well the difference between “money” and “all”
forms of remuneration. Its choice to use the narrower term
in the context of railroad pensions alone requires respect,
not disregard.
Even the IRS (then the Bureau of Internal Revenue)
seems to have understood all this back in 1938. Shortly
after the Railroad Retirement Tax Act's enactment, the IRS
issued a regulation explaining that the Act taxes “all remuneration
in money, or in something which may be used in
lieu of money.” 26 CFR § 410.5 (1938). By way of example,
the regulation said the Act taxed things like “[s]alaries,
wages, commissions, fees, [and] bonuses.” § 410.6(a). But
it nowhere suggested that stock was taxable. Nor was the
possibility lost on the IRS. The IRS said the Act did tax
money payments related to stock—“[p]ayments made by an
280 WISCONSIN CENTRAL LTD. v. UNITED STATES
Opinion of the Court
employer into a stock bonus . . . fund.” § 410.6(f). But the
agency did not seek to extend the same treatment to stock
itself. So even assuming the validity of the regulation, it
seems only to confrm our understanding.
To be sure, the regulation also lists “scrip and merchandise
orders” as examples of qualifying mediums of exchange.
§ 410.5. For argument's sake, too, we will accept that the
word “scrip” can sometimes embrace stock. But even if
“scrip” is capable of bearing this meaning, at the time the
IRS promulgated the regulation in 1938 that was not its ordinary
meaning. As even the government acknowledged
before the Court of Appeals, “scrip” ordinarily meant
“company-issued certifcates” that employees could use in
lieu of cash “to purchase merchandise at a company store.”
Brief for United States in Nos. 16–3300 etc. (CA7), p. 37.
This understanding fts perfectly as well with the whole
phrase in which the term appears; both “scrip and merchandise
orders” were frequently used at the time to purchase
goods at company stores. See, e. g., Webster's New International
Dictionary 2249 (defning “scrip” as a “certifcate . . .
issued to circulate in lieu of government currency” or “by a
corporation that pays wages partly in orders on a company
store”); Keokee Consol. Coke Co. v. Taylor, 234 U. S. 224, 226
(1914) (company gave its employees “scrip . . . as an advance
of monthly wages in payment for labor performed” that could
be used to purchase merchandise at the company store);
Gatch, Local Money in the United States During the Great
Depression, 26 Essays in Economic & Bus. History 47–48
(2008).
What does the government have to say about all this? It
concedes that money remuneration often means remuneration
in a commonly used medium of exchange. But, it submits,
the term can carry a much more expansive meaning
too. At least sometimes, the government says, “money”
means any “property or possessions of any kind viewed as
convertible into money or having value expressible in terms
of money.” 6 Oxford English Dictionary 603. The dissent
Cite as: 585 U. S. 274 (2018) 281
Opinion of the Court
takes the same view. See post, at 287 (opinion of Breyer,
J.). But while the term “money” sometimes might be used
in this much more expansive sense, that isn't how the term
was ordinarily used at the time of the Act's adoption (or is
even today). Baseball cards, vinyl records, snow globes, and
fdget spinners all have “value expressible in terms of
money.” Even that “priceless” Picasso has a price. Really,
almost anything can be reduced to a “value expressible in
terms of money.” But in ordinary usage does “money” mean
almost everything?
The government and the dissent supply no persuasive
proof that Congress sought to invoke their idiosyncratic
defnition. If Congress really thought everything is money,
why did it take such pains to differentiate between money
and stock in the Internal Revenue Code of 1939? Why did
it so carefully distinguish “money remuneration” in the Act
and “all remuneration” in FICA? Why did it include the
word “money” to qualify “remuneration” if all remuneration
counts as money? And wouldn't the everything-ismoney
interpretation encompass railroad tickets, food, and
lodging—exactly the sort of in-kind benefts we know the
Act was written to exclude? These questions they cannot
answer.
To be sure, the government and dissent do seek to offer a
different structural argument of their own. They point to
certain of the Act's tax exemptions, most notably the exemption
for qualifed stock options. See 26 U. S. C. § 3231(e)(12);
post, at 289–290 (Breyer, J., dissenting). Because the Act
excludes qualifed stock options from taxation, the argument
goes, to avoid superfuity it must include other sorts of stock
options like the nonqualifed stock options the railroads issued
here. The problem, though, is that the exemption
covers “any remuneration on account of ” qualifed stock options.
§ 3231(e)(12) (emphasis added). And, as the government
concedes, companies sometimes include money payments
when qualifed stock options are exercised (often to
compensate for fractional shares due an employee). Brief
282 WISCONSIN CENTRAL LTD. v. UNITED STATES
Opinion of the Court
for United States 30. As a result, the exemption does work
under anyone's reading.
The government replies that Congress would not have
bothered to write an exemption that does only this modest
work. To have been worth the candle, Congress must have
assumed that stock options would qualify as money remuneration
without a specifc exemption. But we will not join this
guessing game. It is not our function “to rewrite a constitutionally
valid statutory text under the banner of speculation
about what Congress might have” intended. Henson, 582
U. S., at 89. Besides, even if the railroads' interpretation of
the statute threatens to leave one of many exemptions with
little to do, that's hardly a reason to abandon it, for the government's
and dissent's alternative promises a graver surplusage
problem of its own. As it did in 1939, the Internal
Revenue Code today repeatedly distinguishes between
“stock” and “money.” See, e. g., § 306(c)(2) (referring to a
situation where “money had been distributed in lieu of . . .
stock”). All these distinctions the government and dissent
would simply obliterate.
Reaching further afeld, the government and dissent point
to a 1938 agency interpretation of another companion statute,
the Railroad Retirement Act of 1937. See post, at 292
(Breyer, J., dissenting). Here, the Railroad Retirement
Board suggested that the term “money remuneration” in the
Railroad Retirement Act could sometimes include in-kind
benefts. Again we may assume the validity of the regulation
because, even taken on its own terms, it only ends up
confrming our interpretation. The Board indicated that inkind
benefts could count as money remuneration only if the
employer and employee agreed to this treatment and to the
dollar value of the beneft. 20 CFR § 222.2 (1938). That
same year, the Board made clear that stock was treated just
like any other in-kind beneft under this rule: “stock cannot
be considered as a `form of money remuneration earned by
an individual for services rendered' ” unless part of an emCite
as: 585 U. S. 274 (2018) 283
Opinion of the Court
ployee's “agreed compensation” and awarded “at a defnite
agreed value. ” Railroad Retirement Bd. Gen. Counsel
Memorandum No. L–1938–440, pp. 1–2 (1938). Later, the
Board provided fuller explanation for its longstanding view,
stating that these conditions are necessary because, unlike
FICA, the Act does not cover “ `remuneration . . . paid in any
medium.' ” Railroad Retirement Bd. Gen. Counsel Memorandum
No. L–1986–82, p. 6 (1986). For decades, then, the
Board has taken the view that nonmonetary remuneration is
“not . . . included in compensation under the [Act] unless the
employer and employee frst agree to [its] dollar value . . .
and then agree that this dollar value shall be part of the
employee's compensation package.” Ibid. None of these
preconditions would be needed, of course, if the Act automatically
taxed in-kind benefts as the government and dissent
insist.
Finally, the government seeks Chevron deference for a
more recent IRS interpretation treating “compensation”
under the Act as having “the same meaning as the term
wages in” FICA “except as specifcally limited by the Railroad
Retirement Tax Act.” 26 CFR § 31.3231(e)–1 (2017).
But in light of all the textual and structural clues before us,
we think it's clear enough that the term “money” excludes
“stock,” leaving no ambiguity for the agency to fll. See
Chevron U. S. A. Inc. v. Natural Resources Defense Council,
Inc., 467 U. S. 837, 843, n. 9 (1984). Nor does the regulation
help the government even on its own terms. FICA's defnition
of wages—“all remuneration”—is “specifcally limited
by the Railroad Retirement Tax Act,” which applies only to
“money remuneration.” So in the end all the regulation
winds up saying is that everyone should look carefully at
the relevant statutory texts. We agree, and that is what we
have done.
The Court of Appeals in this case tried a different tack
still, if over a dissent. The majority all but admitted that
stock isn't money, but suggested it would make “good practi284
WISCONSIN CENTRAL LTD. v. UNITED STATES
Opinion of the Court
cal sense” for our statute to cover stock as well as money.
856 F. 3d, at 492. Meanwhile, Judge Manion dissented,
countering that it's a judge's job only to apply, not revise or
update, the terms of statutes. See id., at 493. The Eighth
Circuit made much the same point when it addressed the
question. See Union Pacifc R. Co. v. United States, 865
F. 3d 1045, 1048–1049 (2017). Judge Manion and the Eighth
Circuit were right. Written laws are meant to be understood
and lived by. If a fog of uncertainty surrounded them,
if their meaning could shift with the latest judicial whim, the
point of reducing them to writing would be lost. That is
why it's a “fundamental canon of statutory construction” that
words generally should be “interpreted as taking their ordinary,
contemporary, common meaning . . . at the time Congress
enacted the statute.” Perrin, 444 U. S., at 42. Congress
alone has the institutional competence, democratic
legitimacy, and (most importantly) constitutional authority
to revise statutes in light of new social problems and preferences.
Until it exercises that power, the people may rely on
the original meaning of the written law.
This hardly leaves us, as the dissent worries, “trapped in a
monetary time warp, forever limited to those forms of money
commonly used in the 1930's.” Post, at 287 (opinion of
Breyer, J.). While every statute's meaning is fxed at the
time of enactment, new applications may arise in light of
changes in the world. So “money,” as used in this statute,
must always mean a “medium of exchange.” But what qualifes
as a “medium of exchange” may depend on the facts
of the day. Take electronic transfers of paychecks. Maybe
they weren't common in 1937, but we do not doubt they
would qualify today as “money remuneration” under the
statute's original public meaning. The problem with the
government's and the dissent's position today is not that
stock and stock options weren't common in 1937, but that
they were not then—and are not now—recognized as mediums
of exchange.
Cite as: 585 U. S. 274 (2018) 285
Breyer, J., dissenting
The judgment of the Seventh Circuit is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Breyer, with whom Justice Ginsburg,
Justice Sotomayor, and Justice Kagan join, dissenting.
The case before us concerns taxable “compensation” under
the Railroad Retirement Tax Act. The statute defnes the
statutory word “compensation” as including “any form of
money remuneration paid to an individual for services rendered.”
26 U. S. C. § 3231(e)(1). Does that phrase include
stock options paid to railroad employees “for services rendered”?
Ibid. In my view, the language itself is ambiguous
but other traditional tools of statutory interpretation
point to the answer, “yes.” Consequently, the Government's
interpretation of the language—which it has followed consistently
since the inception of the statute—is lawful. I
therefore dissent.
I
A stock option consists of a right to buy a specifed amount
of stock at a specifc price. If that price is lower than the
current market price of the stock, a holder of the option can
exercise the option, buy the stock at the option price, and
keep the stock, or he can buy the stock, sell it at the higher
market price, and pocket the difference. Companies often
compensate their employees in part by paying them with
stock options, hoping that by doing so they will provide an
incentive for their employees to work harder to increase the
value of the company.
Employees at petitioners' companies who receive and exercise
a stock option may keep the stock they buy as long
as they wish. But they also have another choice called the
“cashless exercise” method. App. 42. That method permits
an employee to check a box on a form, thereby asking
the company's fnancial agents to buy the stock (at the option
286 WISCONSIN CENTRAL LTD. v. UNITED STATES
Breyer, J., dissenting
price) and then immediately sell the stock (at the higher market
price) with the proceeds deposited into the employee's
bank account—just like a deposited paycheck. Ibid.
About half (around 49%) of petitioners' employees used this
method (or a variation of it) during the relevant time period.
Separate App. of Plaintiffs-Appellants in No. 16–3300 (CA7),
p. 45. The Solicitor General tells us that many more employees
at other railroads also use this “cashless exercise”
method—93% in the case of CSX, 90% to 95% in the case of
BNSF. Brief for United States 20 (citing CSX Corp. v.
United States, 2017 WL 2800181, *2 (MD Fla., May 2, 2017),
and BNSF R. Co. v. United States, 775 F. 3d 743, 747 (CA5
2015)).
II
A
Does a stock option received by an employee (along with,
say, a paycheck) count as a “form”—some form, “any form”—
of “money remuneration?” The railroads, as the majority
notes, believe they can fnd the answer to this question by
engaging in (and winning) a war of 1930's dictionaries. I
am less sanguine. True, some of those dictionaries say that
“money” primarily refers to currency or promissory documents
used as “ `a medium of exchange.' ” See ante, at 277–
278. But even this defnition has its ambiguities. A railroad
employee cannot use her paycheck as a “medium of
exchange.” She cannot hand it over to a cashier at the grocery
store; she must frst deposit it. The same is true of
stock, which must be converted into cash and deposited in
the employee's account before she can enjoy its monetary
value. Moreover, what we view as money has changed over
time. Cowrie shells once were such a medium but no longer
are, see J. Weatherford, The History of Money 24 (1997); our
currency originally included gold coins and bullion, but, after
1934, gold could not be used as a medium of exchange, see
Gold Reserve Act of 1934, ch. 6, § 2, 48 Stat. 337; perhaps one
Cite as: 585 U. S. 274 (2018) 287
Breyer, J., dissenting
day employees will be paid in Bitcoin or some other type
of cryptocurrency, see F. Martin, Money: The Unauthorized
Biography—From Coinage to Cryptocurrencies 275–278 (1st
Vintage Books ed. 2015). Nothing in the statute suggests
the meaning of this provision should be trapped in a monetary
time warp, forever limited to those forms of money commonly
used in the 1930's.
Regardless, the formal “medium of exchange” defnition is
not the only dictionary defnition of “money,” now or then.
The Oxford English Dictionary, for example, included in its
defnition “property or possessions of any kind viewed as
convertible into money,” 6 Oxford English Dictionary 603
(1st ed. 1933); Black's Law Dictionary said that money was
the representative of “everything that can be transferred in
commerce,” Black's Law Dictionary 1200 (3d ed. 1933); and
the New Century Dictionary defned money as “property
considered with reference to its pecuniary value,” 1 New
Century Dictionary of the English Language 1083 (1933).
Although the majority brushes these defnitions aside as contrary
to the term's “ordinary usage,” ante, at 281, a broader
understanding of money is perfectly intuitive—particularly
in the context of compensation. Indeed, many of the country's
top executives are compensated in both cash and stock
or stock options. Often, as is the case with the president of
petitioners' parent company, executives' stock-based compensation
far exceeds their cash salary. Brief for United
States 6–7. But if you were to ask (on, say, a mortgage application)
how much money one of those executives made last
year, it would make no sense to leave the stock and stock
options out of the calculation.
So, where does this duel of defnitions lead us? Some
seem too narrow; some seem too broad; some seem indeterminate.
The result is ambiguity. Were it up to me to
choose based only on what I have discussed so far, I would
say that a stock option is a “form of money remuneration.”
Why? Because for many employees it almost immediately
288 WISCONSIN CENTRAL LTD. v. UNITED STATES
Breyer, J., dissenting
takes the form of an increased bank balance, because it
strongly resembles a paycheck in this respect, and because
the statute refers to “any form” of money remuneration. A
paycheck is not money, but it is a means of remunerating
employees monetarily. The same can be said of stock
options.
B
Fortunately, we have yet more tools in our interpretive
arsenal, namely, all the “traditional tools of statutory construction.”
INS v. Cardoza-Fonseca, 480 U. S. 421, 446
(1987). Let us look to purpose. What could Congress' purpose
have been when it used the word “money”? The most
obvious purpose would be to exclude certain in-kind benefts
that are nonmonetary—either because they are nontransferrable
or otherwise diffcult to value. When Congress
enacted the statute, it was common for railroad workers to
receive free transportation for life. Taxation of Interstate
Carriers and Employees: Hearings on H. R. 8652 before the
House Committee on Ways and Means, 74th Cong., 1st
Sess., 6 (1935). Unlike stock options, it would have been
diffcult to value this beneft. And even very broad defnitions
of “money” would seem to exclude it. E. g., 6 Oxford
English Dictionary, at 603.
Another interpretive tool, the statute's history, tends to
confrm this view of the statutory purpose (and further supports
inclusion of stock options for that reason). An earlier
version of the Act explicitly excluded from taxation any “free
transportation,” along with such in-kind benefts as “board,
rents, housing, [and] lodging” provided that their value
was less than $10 per month (about $185 per month today).
S. 2862, 74th Cong., 1st Sess., § 1(e), p. 3 (1935). In other
words, they were incidental benefts that were particularly
diffcult to value. Congress later dropped these specifc provisions
from the bill on the ground that they were “superfuous.”
S. Rep. No. 697, 75th Cong., 1st Sess., 8 (1937).
Cite as: 585 U. S. 274 (2018) 289
Breyer, J., dissenting
Excluding stock options from taxation under the statute
would not further this basic purpose and would be inconsistent
with this aspect of the statute's history, for stock options
are fnancial instruments. They can readily be bought
and sold, they are not benefts in kind (i. e., they have no
value to employees other than their fnancial value), and—
compared to, say, meals or spontaneous train trips—they are
not particularly diffcult to value.
Nor is it easy to see what purpose the majority's interpretation
would serve. Congress designed the Act to provide
a fnancially stable, self-sustaining system of retirement benefts
for railroad employees. See S. Rep. No. 6, 83d Cong.,
1st Sess., pt. 1, pp. 64–65 (1953); see also 2 Staff of the House
Committee on Interstate and Foreign Commerce and the
Senate Committee on Labor and Public Welfare, 92d Cong.,
2d Sess., 12–15 (Jt. Comm. Print 1972) (describing fnancial
diffculties facing the private railroad pension programs that
Congress sought to replace). Nevertheless, petitioners
speculate that Congress intended to limit the Act's tax base
to employees' “regular pay” because that more closely resembled
the way private pensions in the railroad industry
calculated a retiree's annuity. Brief for Petitioners 8. But
the Act taxes not simply monthly paychecks but also bonuses,
commissions, and contributions to an employee's retirement
account (like a 401(k)), see §§ 3231(e)(1), (8)—none
of which were customarily considered in railroad pension calculations.
Why distinguish stock options from these other
forms of money remuneration—particularly when almost
half the employees who participated in petitioners' stock option
plan (and nearly all such employees at other railroads)
have the option's value paid directly into their bank accounts
in cash? See supra, at 285–286.
The statute's structure as later amended offers further
support. That is because a later amendment expressly excluded
from taxation certain stock options, namely, “[q]uali290
WISCONSIN CENTRAL LTD. v. UNITED STATES
Breyer, J., dissenting
fed stock options,” see § 3231(e)(12), which tax law treats
more favorably (and which are also excluded from the Social
Security tax base, § 3121(a)(22)). What need would there be
to exclude expressly a subset of stock options if the statute
already excluded all stock options from its coverage? The
same is true of certain in-kind benefts, such as life-insurance
premiums. See § 3231(e)(1)(i). Congress has more recently
amended the statute to exclude expressly other hard-tovalue
fringe benefts. See § 3231(e)(5). Again what need
would there be to do so if all noncash benefts, including
stock options, were already excluded?
C
There are, of course, counterarguments and other considerations,
which the majority sets forth in its opinion. The
majority asserts, for example, that Congress must have intended
the Act to be read more narrowly because, shortly
after enacting the statutory language at issue in this dispute,
Congress enacted the Federal Insurance Contributions Act
(FICA), which uses different language to establish its tax
base. The Railroad Retirement Tax Act defnes “compensation”
in part as “any form of money remuneration,”
§ 3231(e)(1), while FICA defnes “wages” as including the
“cash value of all remuneration (including benefts) paid in
any medium other than cash,” § 3121(a). But there is no
canon of interpretation forbidding Congress to use different
words in different statutes to mean somewhat the same
thing. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S.
519, 540 (2013). And the meaning of the statutory terms as
I read them are not identical, given FICA's defnition of
“wages” would include those types of noncash benefts that
the Railroad Retirement Tax Act exempts from taxation.
See supra, at 288.
At most, this conficting statutory language leaves the
meaning of “money remuneration” unclear. In these circumstances,
I would give weight to the interpretation of the
Cite as: 585 U. S. 274 (2018) 291
Breyer, J., dissenting
Government agency that Congress charged with administering
the statute. “[W]here a statute leaves a `gap' or is `ambigu[
ous],' we typically interpret it as granting the agency
leeway to enact rules that are reasonable in light of the text,
nature, and purpose of the statute.” Cuozzo Speed Technologies,
LLC v. Lee, 579 U. S. 261, 276–277 (2016) (citing United
States v. Mead Corp., 533 U. S. 218, 229 (2001); Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467
U. S. 837, 843 (1984)). And even outside that framework, I
would fnd the agency's views here particularly persuasive.
Skidmore v. Swift & Co., 323 U. S. 134, 139–140 (1944). The
interpretation was made contemporaneously with the enactment
of the statute itself, Norwegian Nitrogen Products Co.
v. United States, 288 U. S. 294, 315 (1933), and the Government
has not since interpreted the statute in a way that
directly contradicts that contemporaneous interpretation,
see, e. g., Cardoza-Fonseca, 480 U. S., at 446, n. 30; Watt v.
Alaska, 451 U. S. 259, 272–273 (1981). Congress, over a period
of nearly 90 years, has never revised or repealed the
agencies' interpretation, despite modifying other provisions in
the statute, which “ `is persuasive evidence that the interpretation
is the one intended by Congress.' ” Commodity Futures
Trading Comm'n v. Schor, 478 U. S. 833, 846 (1986) (quoting
NLRB v. Bell Aerospace Co., 416 U. S. 267, 274–275 (1974)).
Nor did the railroad industry object to the taxation of stock
options based on the Government's interpretation until recent
years. See, e. g., Union Pacifc R. Co. v. United States, 2016
U. S. Dist. LEXIS 86023, *4–*5 (D Neb., July 1, 2016) (noting
that Union Pacifc began issuing stock options in tax year 1981
and paid railroad retirement taxes on them for decades, challenging
the Government's interpretation only in 2014).
What is that interpretation? Shortly after the Act was
passed, the Department of Treasury issued a regulation defning
the term “compensation” in the Act as reaching both
“all remuneration in money, or in something which may be
used in lieu of money (scrip and merchandise orders, for ex292
WISCONSIN CENTRAL LTD. v. UNITED STATES
Breyer, J., dissenting
ample).” 26 CFR § 410.5 (1938). In the 1930's, “scrip”
could refer to “[c]ertifcates of ownership, either absolute or
conditional, of shares in a public company, corporate profts,
etc.” Black's Law Dictionary, at 1588; C. Alsager, Dictionary
of Business Terms 321 (1932) (“A certifcate which represents
fractions of shares of stock”); 3 F. Stroud, Judicial Dictionary
1802 (2d ed. 1903) (“[a] certifcate, transferable by
delivery, entitling its holder to become a Shareholder or
Bondholder in respect of the shares or bonds therein mentioned”).
The majority, though clearly fond of 1930's-era
dictionaries, rejects these defnitions because, in its view,
they do not refect the term's “ordinary meaning.” Ante,
at 280. But the majority has no basis for this assertion.
Contra, Eisner v. Macomber, 252 U. S. 189, 227 (1920) (Brandeis,
J., dissenting) (referring to “bonds, scrip or stock” as
similar instruments of corporate fnance).
The Treasury Department was not alone in interpreting
the term “money remuneration” more broadly. In 1938 the
Railroad Retirement Board's regulations treated the term
“any form of money remuneration” as including “a commodity,
service, or privilege” that had an “agreed upon” value.
20 CFR § 222.2; see also 20 CFR § 211.2 (2018) (current version).
At least one contemporaneous legal opinion from the
Board's general counsel specifcally concluded that stock received
by “employees as a part of their agreed compensation
for services actually rendered and at a defnite agreed value”
qualifed as a “form of money remuneration.” Railroad Retirement
Bd. Gen. Counsel Memorandum No. L–1938–440,
p. 2 (1938). And in a more recent opinion, the Board's general
counsel stated that nonqualifed stock options (the type
of stock option at issue in this dispute) are taxable under the
Act. Railroad Retirement Bd. Gen. Counsel Memorandum
No. L–2005–25, p. 6 (2005).
The majority plucks from the Act's long administrative history
a 1986 Board legal opinion stating that an in-kind beneft
should not be treated as compensation “ `unless the emCite
as: 585 U. S. 274 (2018) 293
Breyer, J., dissenting
ployer and employee frst agree to [its] dollar value . . . and
then agree that this dollar value shall be part of the employee's
compensation package.' ” Ante, at 283 (quoting Railroad
Retirement Bd. Gen. Counsel Memorandum No. L–
1986–82, p. 6 (1986)). But the majority neglects to share
that the deputy general counsel who wrote that legal opinion
was not discussing stock or stock options, but rather was
discussing a “fringe beneft”—specifcally free rail passes employers
purchased on behalf of their employees so they could
ride on other carriers' trains. Ante, at 283. As I explained
above, supra, at 288, such nontransferrable travel benefts
were diffcult to value and thus were excluded from the Act's
definition of money remuneration. (Though the Board's
willingness to treat at least some fringe benefts as a “form
of money remuneration” demonstrates that the Board took a
more fexible view of the term—a view that is contrary to
the rigid dictionary defnition of “money” the majority prefers,
which excludes all forms of in-kind benefts. See ante,
at 277–278.)
A stock option, unlike free travel benefts, has a readily
discernible value: namely, the difference between the option
price and the market price when the employee exercises the
option. For those employees who use the “cashless exercise”
method, that difference is the amount that is deposited
into their account as cash (minus fees). See supra, at 285.
No one disputes that this is the value of the option when it
is exercised. See Stipulations of Fact in No. 14–cv–10243,
Exh. 13 (ND Ill.), p. CN168 (describing the taxable beneft
from exercising a stock option). And no one disputes that
granting employees stock options is a form of remuneration.
See ante, at 278 (acknowledging that “ `remuneration' can encompass
any kind of reward or compensation”). The 1986
legal opinion on rail passes the majority invokes simply has
no bearing on the tax treatment of stock options in this case.
More recently, the Treasury has issued a regulation stating
that the Railroad Retirement Tax Act's term “compensa294
WISCONSIN CENTRAL LTD. v. UNITED STATES
Breyer, J., dissenting
tion” (which, the reader will recall, the Act defnes as “any
form of money remuneration”) has the same meaning as the
term “wages” in FICA “ `except as specifcally limited by
the Railroad Retirement Tax Act' ” or by regulation. Brief
for Petitioners 47. Petitioners do not dispute that FICA
long has counted stock options as compensation. See id., at
39–47. Neither the statute's text nor any regulation limits
us from doing the same for the Railroad Retirement Tax Act.
If anything, the earlier Treasury and Board regulations and
opinions make clear that, in the Treasury Department's view,
the Act does not “specifcally limit” the application of its
terms by excluding stock options from its coverage.
The Treasury Department's interpretation is a reasonable
one. For one thing, it creates greater uniformity between
the Railroad Retirement Tax Act's pension-like taxing system
and the Social Security system governed by FICA. To
seek administrative uniformity is (other things being equal)
a reasonable objective given the similarity of purpose and
methods the two Acts embody. And subsequent amendments
to the Railroad Retirement Tax Act (which have generally
mirrored provisions in FICA) demonstrate that Congress
intended these tax regimes to be treated the same.
See Update of Railroad Retirement Tax Act Regulations, 59
Fed. Reg. 66188 (1994) (observing that Congress has taken
steps to “confor[m] the structure of the [Railroad Retirement
Tax Act] to parallel that of the FICA”); compare §§ 3231(e)(1),
(9), with §§ 3121(a)(2)(C), (a)(19). For another, it helps to
avoid the unfairness that would arise out of treating differently
two individuals (who received roughly the same
amount of money in their bank accounts) simply because one
received a paycheck while the other received proceeds from
selling company stock.
Here, in respect to stock options, the Act's language has a
degree of ambiguity. But the statute's purpose, along with
its amendments, argues in favor of including stock options.
The Government has so interpreted the statute for decades,
Cite as: 585 U. S. 274 (2018) 295
Breyer, J., dissenting
and Congress has never suggested it held a contrary view,
despite making other statutory changes. In these circumstances,
I believe the Government has the stronger argument.
I would read the statutory phrase as including stock
options. And, with respect, I dissent from the majority's
contrary view.
296 OCTOBER TERM, 2017
Syllabus
CARPENTER v. UNITED STATES
certiorari to the united states court of appeals for
the sixth circuit
No. 16–402. Argued November 29, 2017—Decided June 22, 2018
Cell phones perform their wide and growing variety of functions by continuously
connecting to a set of radio antennas called “cell sites.” Each
time a phone connects to a cell site, it generates a time-stamped record
known as cell-site location information (CSLI). Wireless carriers collect
and store this information for their own business purposes. Here,
after the FBI identifed the cell phone numbers of several robbery suspects,
prosecutors were granted court orders to obtain the suspects' cell
phone records under the Stored Communications Act. Wireless carriers
produced CSLI for petitioner Timothy Carpenter's phone, and the
Government was able to obtain 12,898 location points cataloging Carpenter's
movements over 127 days—an average of 101 data points per
day. Carpenter moved to suppress the data, arguing that the Government's
seizure of the records without obtaining a warrant supported by
probable cause violated the Fourth Amendment. The District Court
denied the motion, and prosecutors used the records at trial to show
that Carpenter's phone was near four of the robbery locations at the
time those robberies occurred. Carpenter was convicted. The Sixth
Circuit affrmed, holding that Carpenter lacked a reasonable expectation
of privacy in the location information collected by the FBI because he
had shared that information with his wireless carriers.
Held:
1. The Government's acquisition of Carpenter's cell-site records was
a Fourth Amendment search. Pp. 303–316.
(a) The Fourth Amendment protects not only property interests
but certain expectations of privacy as well. Katz v. United States, 389
U. S. 347, 351. Thus, when an individual “seeks to preserve something
as private,” and his expectation of privacy is “one that society is prepared
to recognize as reasonable,” offcial intrusion into that sphere generally
qualifes as a search and requires a warrant supported by probable
cause. Smith v. Maryland, 442 U. S. 735, 740 (internal quotation
marks and alterations omitted). The analysis regarding which expectations
of privacy are entitled to protection is informed by historical understandings
“of what was deemed an unreasonable search and seizure
when [the Fourth Amendment] was adopted.” Carroll v. United States,
267 U. S. 132, 149. These Founding-era understandings continue to inCite
as: 585 U. S. 296 (2018) 297
Syllabus
form this Court when applying the Fourth Amendment to innovations
in surveillance tools. See, e. g., Kyllo v. United States, 533 U. S. 27.
Pp. 303–305.
(b) The digital data at issue—personal location information maintained
by a third party—does not ft neatly under existing precedents
but lies at the intersection of two lines of cases. One set addresses a
person's expectation of privacy in his physical location and movements.
See, e. g., United States v. Jones, 565 U. S. 400 (fve Justices concluding
that privacy concerns would be raised by GPS tracking). The other
addresses a person's expectation of privacy in information voluntarily
turned over to third parties. See United States v. Miller, 425 U. S. 435
(no expectation of privacy in fnancial records held by a bank), and
Smith, 442 U. S. 735 (no expectation of privacy in records of dialed telephone
numbers conveyed to telephone company). Pp. 306–309.
(c) Tracking a person's past movements through CSLI partakes of
many of the qualities of GPS monitoring considered in Jones—it is detailed,
encyclopedic, and effortlessly compiled. At the same time, however,
the fact that the individual continuously reveals his location to his
wireless carrier implicates the third-party principle of Smith and
Miller. Given the unique nature of cell-site records, this Court declines
to extend Smith and Miller to cover them. Pp. 309–316.
(1) A majority of the Court has already recognized that individuals
have a reasonable expectation of privacy in the whole of their
physical movements. Allowing government access to cell-site records—
which “hold for many Americans the `privacies of life,' ” Riley v.
California, 573 U. S. 373, 403—contravenes that expectation. In fact,
historical cell-site records present even greater privacy concerns than
the GPS monitoring considered in Jones: They give the Government
near perfect surveillance and allow it to travel back in time to retrace
a person's whereabouts, subject only to the fve-year retention policies
of most wireless carriers. The Government contends that CSLI data
is less precise than GPS information, but it thought the data accurate
enough here to highlight it during closing argument in Carpenter's trial.
At any rate, the rule the Court adopts “must take account of more sophisticated
systems that are already in use or in development,” Kyllo,
533 U. S., at 36, and the accuracy of CSLI is rapidly approaching GPSlevel
precision. Pp. 310–313.
(2) The Government contends that the third-party doctrine governs
this case, because cell-site records, like the records in Smith and
Miller, are “business records,” created and maintained by wireless carriers.
But there is a world of difference between the limited types of
personal information addressed in Smith and Miller and the exhaustive
chronicle of location information casually collected by wireless carriers.
298 CARPENTER v. UNITED STATES
Syllabus
The third-party doctrine partly stems from the notion that an individual
has a reduced expectation of privacy in information knowingly
shared with another. Smith and Miller, however, did not rely solely on
the act of sharing. They also considered “the nature of the particular
documents sought” and limitations on any “legitimate `expectation of
privacy' concerning their contents.” Miller, 425 U. S., at 442. In mechanically
applying the third-party doctrine to this case the Government
fails to appreciate the lack of comparable limitations on the revealing
nature of CSLI.
Nor does the second rationale for the third-party doctrine—voluntary
exposure—hold up when it comes to CSLI. Cell phone location information
is not truly “shared” as the term is normally understood. First,
cell phones and the services they provide are “such a pervasive and
insistent part of daily life” that carrying one is indispensable to participation
in modern society. Riley, 573 U. S., at 385. Second, a cell phone
logs a cell-site record by dint of its operation, without any affrmative
act on the user's part beyond powering up. Pp. 313–316.
(d) This decision is narrow. It does not express a view on matters
not before the Court; does not disturb the application of Smith and
Miller or call into question conventional surveillance techniques and
tools, such as security cameras; does not address other business records
that might incidentally reveal location information; and does not consider
other collection techniques involving foreign affairs or national
security. P. 316.
2. The Government did not obtain a warrant supported by probable
cause before acquiring Carpenter's cell-site records. It acquired those
records pursuant to a court order under the Stored Communications
Act, which required the Government to show “reasonable grounds” for
believing that the records were “relevant and material to an ongoing
investigation.” 18 U. S. C. § 2703(d). That showing falls well short of
the probable cause required for a warrant. Consequently, an order issued
under § 2703(d) is not a permissible mechanism for accessing historical
cell-site records. Not all orders compelling the production of documents
will require a showing of probable cause. A warrant is required
only in the rare case where the suspect has a legitimate privacy interest
in records held by a third party. And even though the Government will
generally need a warrant to access CSLI, case-specifc exceptions—e. g.,
exigent circumstances—may support a warrantless search. Pp. 316–321.
819 F. 3d 880, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Ginsburg,
Breyer, Sotomayor, and Kagan, JJ., joined. Kennedy, J., fled a dissenting
opinion, in which Thomas and Alito, JJ., joined, post, p. 321.
Cite as: 585 U. S. 296 (2018) 299
Syllabus
Thomas, J., fled a dissenting opinion, post, p. 342. Alito, J., fled a dissenting
opinion, in which Thomas, J., joined, post, p. 361. Gorsuch, J.,
fled a dissenting opinion, post, p. 386.
Nathan Freed Wessler argued the cause for petitioner.
With him on the briefs were Ben Wizner, Brett Max Kaufman,
David D. Cole, Cecillia D. Wang, Jennifer Stisa Granick,
Harold Gurewitz, Daniel S. Korobkin, Michael J. Steinberg,
Kary L. Moss, and Jeffrey L. Fisher.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the brief were Solicitor
General Francisco, Acting Assistant Attorney General
Blanco, Elizabeth B. Prelogar, and Jenny C. Ellickson.*
*Briefs of amici curiae urging reversal were fled for the Center for
Competitive Politics et al. by Allen Dickerson and Zac Morgan; for the
Center for Democracy & Technology by Andrew J. Pincus; for the Competitive
Enterprise Institute et al. by Jim Harper, Ilya Shapiro, Manuel
S. Klausner, and Curt Levey; for Data & Society Research Institute et al.
by Marcia Hofmann and Andrew D. Selbst; for the Electronic Frontier
Foundation et al. by Andrew Crocker, Jennifer Lynch, Jamie Williams,
Faiza Patel, Michael W. Price, Rachel Levinson-Waldman, David Oscar
Markus, Meghan Skelton, Donna Coltharp, Sarah Gannett, and Dan
Kaplan; for the Electronic Privacy Information Center et al. by Marc
Rotenberg and Alan Butler; for Empirical Fourth Amendment Scholars
by Sarah O' Rourke Schrup and Jeffrey T. Green; for the Institute for
Justice et al. by Wesley Hottot and Robert Frommer; for the Reporters
Committee for Freedom of the Press et al. by Bruce D. Brown, Kevin M.
Goldberg, James Cregan, Mickey H. Osterreicher, Robert A. Bertsche,
Kurt Wimmer, Barbara L. Camens, Laura R. Handman, Alison Schary,
Thomas R. Burke, and Bruce W. Sanford; for Restore the Fourth, Inc.,
by Mahesha P. Subbaraman; for The Rutherford Institute by John W.
Whitehead and D. Alicia Hickok; for Scholars of Criminal Procedure and
Privacy by Harry Sandick; for Scholars of the History and Original Meaning
of the Fourth Amendment by Elizabeth B. Wydra, Brianne J. Gorod,
and Brian R. Frazelle; for Technology Experts by Alex Abdo and Jameel
Jaffer; and for the United States Justice Foundation et al. by Joseph W.
Miller, Michael Boos, J. Mark Brewer, Robert J. Olson, Herbert W. Titus,
William J. Olson, and Jeremiah L. Morgan.
Briefs of amici curiae urging affrmance were fled for the State of
Florida by Pamela Jo Bondi, Attorney General of Florida, Amit Agarwal,
300 CARPENTER v. UNITED STATES
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
This case presents the question whether the Government
conducts a search under the Fourth Amendment when it
accesses historical cell phone records that provide a comprehensive
chronicle of the user's past movements.
I
A
There are 396 million cell phone service accounts in the
United States—for a Nation of 326 million people. Cell
phones perform their wide and growing variety of functions
by connecting to a set of radio antennas called “cell sites.”
Although cell sites are usually mounted on a tower, they can
also be found on light posts, fagpoles, church steeples, or the
sides of buildings. Cell sites typically have several directional
antennas that divide the covered area into sectors.
Cell phones continuously scan their environment looking
for the best signal, which generally comes from the closest
cell site. Most modern devices, such as smartphones, tap
into the wireless network several times a minute whenever
their signal is on, even if the owner is not using one of the
Solicitor General, and Denise M. Harle and Jordan E. Pratt, Deputy Solicitors
General, and by Attorneys General for their respective jurisdictions
as follows: Steve Marshall of Alabama, Mark Brnovich of Arizona, Cynthia
H. Coffman of Colorado, Lawrence G. Wasden of Idaho, Curtis T.
Hill, Jr., of Indiana, Derek Schmidt of Kansas, Andy Beshear of Kentucky,
Brian E. Frosh of Maryland, Bill Schuette of Michigan, Timothy C. Fox
of Montana, Doug Peterson of Nebraska, Gordon J. MacDonald of New
Hampshire, Hector H. Balderas of New Mexico, Mike Hunter of Oklahoma,
Josh Shapiro of Pennsylvania, Alan Wilson of South Carolina, Herbert
H. Slatery III of Tennessee, and Peter K. Michael of Wyoming; for
the National District Attorneys Association by John M. Castellano and
Linda Cantoni; for Orin S. Kerr by Mr. Kerr, pro se; and for Michael
Varco by Mr. Varco, pro se.
Seth P. Waxman, Jonathan G. Cedarbaum, and Catherine M. A. Carroll
fled a brief for Technology Companies as amici curiae.
Cite as: 585 U. S. 296 (2018) 301
Opinion of the Court
phone's features. Each time the phone connects to a cell
site, it generates a time-stamped record known as cell-site
location information (CSLI). The precision of this information
depends on the size of the geographic area covered by
the cell site. The greater the concentration of cell sites, the
smaller the coverage area. As data usage from cell phones
has increased, wireless carriers have installed more cell sites
to handle the traffc. That has led to increasingly compact
coverage areas, especially in urban areas.
Wireless carriers collect and store CSLI for their own
business purposes, including fnding weak spots in their network
and applying “roaming” charges when another carrier
routes data through their cell sites. In addition, wireless
carriers often sell aggregated location records to data brokers,
without individual identifying information of the sort
at issue here. While carriers have long retained CSLI for
the start and end of incoming calls, in recent years phone
companies have also collected location information from the
transmission of text messages and routine data connections.
Accordingly, modern cell phones generate increasingly vast
amounts of increasingly precise CSLI.
B
In 2011, police offcers arrested four men suspected of robbing
a series of Radio Shack and (ironically enough) T-Mobile
stores in Detroit. One of the men confessed that, over the
previous four months, the group (along with a rotating cast
of getaway drivers and lookouts) had robbed nine different
stores in Michigan and Ohio. The suspect identifed 15 accomplices
who had participated in the heists and gave the
FBI some of their cell phone numbers; the FBI then reviewed
his call records to identify additional numbers that
he had called around the time of the robberies.
Based on that information, the prosecutors applied for
court orders under the Stored Communications Act to obtain
cell phone records for petitioner Timothy Carpenter and
302 CARPENTER v. UNITED STATES
Opinion of the Court
several other suspects. That statute, as amended in 1994,
permits the Government to compel the disclosure of certain
telecommunications records when it “offers specifc and articulable
facts showing that there are reasonable grounds to
believe” that the records sought “are relevant and material
to an ongoing criminal investigation.” 18 U. S. C. § 2703(d).
Federal Magistrate Judges issued two orders directing
Carpenter's wireless carriers—MetroPCS and Sprint—to
disclose “cell/site sector [information] for [Carpenter's] telephone[
] at call origination and at call termination for incoming
and outgoing calls” during the four-month period when
the string of robberies occurred. App. to Pet. for Cert. 60a,
72a. The frst order sought 152 days of cell-site records
from MetroPCS, which produced records spanning 127 days.
The second order requested seven days of CSLI from Sprint,
which produced two days of records covering the period
when Carpenter's phone was “roaming” in northeastern
Ohio. Altogether the Government obtained 12,898 location
points cataloging Carpenter's movements—an average of
101 data points per day.
Carpenter was charged with six counts of robbery and an
additional six counts of carrying a frearm during a federal
crime of violence. See 18 U. S. C. §§ 924(c), 1951(a). Prior
to trial, Carpenter moved to suppress the cell-site data
provided by the wireless carriers. He argued that the
Government's seizure of the records violated the Fourth
Amendment because they had been obtained without a warrant
supported by probable cause. The District Court denied
the motion. App. to Pet. for Cert. 38a–39a.
At trial, seven of Carpenter's confederates pegged him as
the leader of the operation. In addition, FBI agent Christopher
Hess offered expert testimony about the cell-site data.
Hess explained that each time a cell phone taps into the wireless
network, the carrier logs a time-stamped record of the
cell site and particular sector that were used. With this
information, Hess produced maps that placed Carpenter's
Cite as: 585 U. S. 296 (2018) 303
Opinion of the Court
phone near four of the charged robberies. In the Government's
view, the location records clinched the case: They confrmed
that Carpenter was “right where the . . . robbery
was at the exact time of the robbery.” App. 131 (closing
argument). Carpenter was convicted on all but one of the
frearm counts and sentenced to more than 100 years in
prison.
The Court of Appeals for the Sixth Circuit affrmed. 819
F. 3d 880 (2016). The court held that Carpenter lacked a
reasonable expectation of privacy in the location information
collected by the FBI because he had shared that information
with his wireless carriers. Given that cell phone users voluntarily
convey cell-site data to their carriers as “a means of
establishing communication,” the court concluded that the
resulting business records are not entitled to Fourth Amendment
protection. Id., at 888 (quoting Smith v. Maryland,
442 U. S. 735, 741 (1979)).
We granted certiorari. 581 U. S. 1017 (2017).
II
A
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” The “basic
purpose of this Amendment,” our cases have recognized, “is
to safeguard the privacy and security of individuals against
arbitrary invasions by governmental offcials.” Camara v.
Municipal Court of City and County of San Francisco, 387
U. S. 523, 528 (1967). The Founding generation crafted the
Fourth Amendment as a “response to the reviled `general
warrants' and `writs of assistance' of the colonial era, which
allowed British offcers to rummage through homes in an unrestrained
search for evidence of criminal activity.” Riley v.
California, 573 U. S. 373, 403 (2014). In fact, as John Adams
recalled, the patriot James Otis's 1761 speech condemning
writs of assistance was “the frst act of opposition to the
304 CARPENTER v. UNITED STATES
Opinion of the Court
arbitrary claims of Great Britain” and helped spark the Revolution
itself. Ibid. (quoting 10 Works of John Adams 248
(C. Adams ed. 1856)).
For much of our history, Fourth Amendment search doctrine
was “tied to common-law trespass” and focused on
whether the Government “obtains information by physically
intruding on a constitutionally protected area.” United
States v. Jones, 565 U. S. 400, 405, 406–407, n. 3 (2012).
More recently, the Court has recognized that “property
rights are not the sole measure of Fourth Amendment violations.”
Soldal v. Cook County, 506 U. S. 56, 64 (1992). In
Katz v. United States, 389 U. S. 347, 351 (1967), we established
that “the Fourth Amendment protects people, not
places,” and expanded our conception of the Amendment to
protect certain expectations of privacy as well. When an
individual “seeks to preserve something as private,” and his
expectation of privacy is “one that society is prepared to recognize
as reasonable,” we have held that offcial intrusion into
that private sphere generally qualifes as a search and requires
a warrant supported by probable cause. Smith, 442 U. S., at
740 (internal quotation marks and alterations omitted).
Although no single rubric defnitively resolves which
expectations of privacy are entitled to protection,1 the analy-
1 Justice Kennedy believes that there is such a rubric—the “propertybased
concepts” that Katz purported to move beyond. Post, at 322 (dissenting
opinion). But while property rights are often informative, our
cases by no means suggest that such an interest is “fundamental” or “dispositive”
in determining which expectations of privacy are legitimate.
Post, at 328–329. Justice Thomas (and to a large extent Justice Gorsuch)
would have us abandon Katz and return to an exclusively propertybased
approach. Post, at 342–343, 357–360 (Thomas J., dissenting); post,
at 391–394 (Gorsuch, J., dissenting). Katz of course “discredited” the
“premise that property interests control,” 389 U. S., at 353, and we have
repeatedly emphasized that privacy interests do not rise or fall with property
rights, see, e. g., United States v. Jones, 565 U. S. 400, 411 (2012)
(refusing to “make trespass the exclusive test”); Kyllo v. United States,
533 U. S. 27, 32 (2001) (“We have since decoupled violation of a person's
Fourth Amendment rights from trespassory violation of his property.”).
Neither party has asked the Court to reconsider Katz in this case.
Cite as: 585 U. S. 296 (2018) 305
Opinion of the Court
sis is informed by historical understandings “of what
was deemed an unreasonable search and seizure when [the
Fourth Amendment] was adopted. ” Car roll v. Uni ted
States, 267 U. S. 132, 149 (1925). On this score, our cases
have recognized some basic guideposts. First, that the
Amendment seeks to secure “the privacies of life” against
“arbitrary power.” Boyd v. United States, 116 U. S. 616, 630
(1886). Second, and relatedly, that a central aim of the
Framers was “to place obstacles in the way of a too permeating
police surveillance.” United States v. Di Re, 332 U. S.
581, 595 (1948).
We have kept this attention to Founding-era understandings
in mind when applying the Fourth Amendment to innovations
in surveillance tools. As technology has enhanced
the Government's capacity to encroach upon areas normally
guarded from inquisitive eyes, this Court has sought to “assure[
] preservation of that degree of privacy against government
that existed when the Fourth Amendment was
adopted.” Kyllo v. United States, 533 U. S. 27, 34 (2001).
For that reason, we rejected in Kyllo a “mechanical interpretation”
of the Fourth Amendment and held that use of a thermal
imager to detect heat radiating from the side of the defendant's
home was a search. Id., at 35. Because any other
conclusion would leave homeowners “at the mercy of advancing
technology,” we determined that the Government—
absent a warrant—could not capitalize on such new senseenhancing
technology to explore what was happening within
the home. Ibid.
Likewise in Riley, the Court recognized the “immense
storage capacity” of modern cell phones in holding that police
offcers must generally obtain a warrant before searching the
contents of a phone. 573 U. S., at 393. We explained that
while the general rule allowing warrantless searches incident
to arrest “strikes the appropriate balance in the context
of physical objects, neither of its rationales has much force
with respect to” the vast store of sensitive information on a
cell phone. Id., at 386.
306 CARPENTER v. UNITED STATES
Opinion of the Court
B
The case before us involves the Government's acquisition
of wireless carrier cell-site records revealing the location of
Carpenter's cell phone whenever it made or received calls.
This sort of digital data—personal location information
maintained by a third party—does not ft neatly under existing
precedents. Instead, requests for cell-site records lie at
the intersection of two lines of cases, both of which inform
our understanding of the privacy interests at stake.
The frst set of cases addresses a person's expectation of
privacy in his physical location and movements. In United
States v. Knotts, 460 U. S. 276 (1983), we considered the Government's
use of a “beeper” to aid in tracking a vehicle
through traffc. Police offcers in that case planted a beeper
in a container of chloroform before it was purchased by one
of Knotts's co-conspirators. The offcers (with intermittent
aerial assistance) then followed the automobile carrying the
container from Minneapolis to Knotts's cabin in Wisconsin,
relying on the beeper's signal to help keep the vehicle in
view. The Court concluded that the “augment[ed]” visual
surveillance did not constitute a search because “[a] person
traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one
place to another.” Id., at 281, 282. Since the movements of
the vehicle and its fnal destination had been “voluntarily
conveyed to anyone who wanted to look,” Knotts could not
assert a privacy interest in the information obtained. Id.,
at 281.
This Court in Knotts, however, was careful to distinguish
between the rudimentary tracking facilitated by the beeper
and more sweeping modes of surveillance. The Court emphasized
the “limited use which the government made of the
signals from this particular beeper” during a discrete “automotive
journey.” Id., at 284, 285. Signifcantly, the Court
reserved the question whether “different constitutional prinCite
as: 585 U. S. 296 (2018) 307
Opinion of the Court
ciples may be applicable” if “twenty-four hour surveillance of
any citizen of this country [were] possible.” Id., at 283–284.
Three decades later, the Court considered more sophisticated
surveillance of the sort envisioned in Knotts and found
that different principles did indeed apply. In United States
v. Jones, FBI agents installed a GPS tracking device on
Jones's vehicle and remotely monitored the vehicle's movements
for 28 days. The Court decided the case based on the
Government's physical trespass of the vehicle. 565 U. S., at
404–405. At the same time, fve Justices agreed that related
privacy concerns would be raised by, for example, “surreptitiously
activating a stolen vehicle detection system” in
Jones's car to track Jones himself, or conducting GPS tracking
of his cell phone. Id., at 426, 428 (Alito, J., concurring
in judgment); id., at 415 (Sotomayor, J., concurring). Since
GPS monitoring of a vehicle tracks “every movement” a person
makes in that vehicle, the concurring Justices concluded
that “longer term GPS monitoring in investigations of most
offenses impinges on expectations of privacy”—regardless
whether those movements were disclosed to the public at
large. Id., at 430 (opinion of Alito, J.); id., at 415 (opinion
of Sotomayor, J.).2
In a second set of decisions, the Court has drawn a line
between what a person keeps to himself and what he shares
2 Justice Kennedy argues that this case is in a different category from
Jones and the dragnet-type practices posited in Knotts because the disclosure
of the cell-site records was subject to “judicial authorization.” Post,
at 333–335. That line of argument confates the threshold question
whether a “search” has occurred with the separate matter of whether the
search was reasonable. The subpoena process set forth in the Stored
Communications Act does not determine a target's expectation of privacy.
And in any event, neither Jones nor Knotts purported to resolve the question
of what authorization may be required to conduct such electronic surveillance
techniques. But see Jones, 565 U. S., at 430 (Alito, J., concurring
in judgment) (indicating that longer term GPS tracking may require
a warrant).
308 CARPENTER v. UNITED STATES
Opinion of the Court
with others. We have previously held that “a person has no
legitimate expectation of privacy in information he voluntarily
turns over to third parties.” Smith, 442 U. S., at 743–
744. That remains true “even if the information is revealed
on the assumption that it will be used only for a limited purpose.”
United States v. Miller, 425 U. S. 435, 443 (1976).
As a result, the Government is typically free to obtain such
information from the recipient without triggering Fourth
Amendment protections.
This third-party doctrine largely traces its roots to Miller.
While investigating Miller for tax evasion, the Government
subpoenaed his banks, seeking several months of canceled
checks, deposit slips, and monthly statements. The Court
rejected a Fourth Amendment challenge to the records collection.
For one, Miller could “assert neither ownership nor
possession” of the documents; they were “business records
of the banks.” Id., at 440. For another, the nature of those
records confrmed Miller's limited expectation of privacy, because
the checks were “not confdential communications but
negotiable instruments to be used in commercial transactions,”
and the bank statements contained information “exposed
to [bank] employees in the ordinary course of business.”
Id., at 442. The Court thus concluded that Miller
had “take[n] the risk, in revealing his affairs to another, that
the information [would] be conveyed by that person to the
Government.” Id., at 443.
Three years later, Smith applied the same principles
in the context of information conveyed to a telephone company.
The Court ruled that the Government's use of a pen
register—a device that recorded the outgoing phone numbers
dialed on a landline telephone—was not a search. Noting
the pen register's “limited capabilities,” the Court
“doubt[ed] that people in general entertain any actual expectation
of privacy in the numbers they dial.” 442 U. S., at
742. Telephone subscribers know, after all, that the numbers
are used by the telephone company “for a variety of
Cite as: 585 U. S. 296 (2018) 309
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legitimate business purposes,” including routing calls. Id.,
at 743. And at any rate, the Court explained, such an expectation
“is not one that society is prepared to recognize as
reasonable.” Ibid. (internal quotation marks omitted).
When Smith placed a call, he “voluntarily conveyed” the
dialed numbers to the phone company by “expos[ing] that
information to its equipment in the ordinary course of business.”
Id., at 744 (internal quotation marks omitted).
Once again, we held that the defendant “assumed the risk”
that the company's records “would be divulged to police.”
Id., at 745.
III
The question we confront today is how to apply the Fourth
Amendment to a new phenomenon: the ability to chronicle a
person's past movements through the record of his cell phone
signals. Such tracking partakes of many of the qualities of
the GPS monitoring we considered in Jones. Much like GPS
tracking of a vehicle, cell phone location information is detailed,
encyclopedic, and effortlessly compiled.
At the same time, the fact that the individual continuously
reveals his location to his wireless carrier implicates the
third-party principle of Smith and Miller. But while the
third-party doctrine applies to telephone numbers and bank
records, it is not clear whether its logic extends to the qualitatively
different category of cell-site records. After all,
when Smith was decided in 1979, few could have imagined
a society in which a phone goes wherever its owner goes,
conveying to the wireless carrier not just dialed digits,
but a detailed and comprehensive record of the person's
movements.
We decline to extend Smith and Miller to cover these
novel circumstances. Given the unique nature of cell phone
location records, the fact that the information is held by a
third party does not by itself overcome the user's claim to
Fourth Amendment protection. Whether the Government
employs its own surveillance technology as in Jones or lever310
CARPENTER v. UNITED STATES
Opinion of the Court
ages the technology of a wireless carrier, we hold that an
individual maintains a legitimate expectation of privacy in
the record of his physical movements as captured through
CSLI. The location information obtained from Carpenter's
wireless carriers was the product of a search.3
A
A person does not surrender all Fourth Amendment protection
by venturing into the public sphere. To the contrary,
“what [one] seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected.”
Katz, 389 U. S., at 351–352. A majority of this
Court has already recognized that individuals have a reasonable
expectation of privacy in the whole of their physical
movements. Jones, 565 U. S., at 430 (Alito, J., concurring
in judgment); id., at 415 (Sotomayor, J., concurring). Prior
to the digital age, law enforcement might have pursued a
suspect for a brief stretch, but doing so “for any extended
period of time was diffcult and costly and therefore rarely
undertaken.” Id., at 429 (opinion of Alito, J.). For that
reason, “society's expectation has been that law enforcement
agents and others would not—and indeed, in the main, simply
could not—secretly monitor and catalogue every single
movement of an individual's car for a very long period.” Id.,
at 430.
3 The parties suggest as an alternative to their primary submissions that
the acquisition of CSLI becomes a search only if it extends beyond a limited
period. See Reply Brief 12 (proposing a 24-hour cutoff); Brief for
United States 55–56 (suggesting a seven-day cutoff). As part of its argument,
the Government treats the seven days of CSLI requested from
Sprint as the pertinent period, even though Sprint produced only two days
of records. Brief for United States 56. Contrary to Justice Kennedy's
assertion, post, at 338–339, we need not decide whether there is a limited
period for which the Government may obtain an individual's historical
CSLI free from Fourth Amendment scrutiny, and if so, how long that
period might be. It is suffcient for our purposes today to hold that accessing
seven days of CSLI constitutes a Fourth Amendment search.
Cite as: 585 U. S. 296 (2018) 311
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Allowing government access to cell-site records contravenes
that expectation. Although such records are generated
for commercial purposes, that distinction does not negate
Carpenter's anticipation of privacy in his physical
location. Mapping a cell phone's location over the course of
127 days provides an all-encompassing record of the holder's
whereabouts. As with GPS information, the time-stamped
data provides an intimate window into a person's life, revealing
not only his particular movements, but through them
his “familial, political, professional, religious, and sexual
associations.” Id., at 415 (opinion of Sotomayor, J.). These
location records “hold for many Americans the `privacies
of life.' ” Riley, 573 U. S., at 403 (quoting Boyd, 116 U. S.,
at 630). And like GPS monitoring, cell phone tracking
is remarkably easy, cheap, and effcient compared to traditional
investigative tools. With just the click of a button,
the Government can access each carrier's deep repository
of historical location information at practically no
expense.
In fact, historical cell-site records present even greater
privacy concerns than the GPS monitoring of a vehicle we
considered in Jones. Unlike the bugged container in Knotts
or the car in Jones, a cell phone—almost a “feature of human
anatomy,” Riley, 573 U. S., at 385—tracks nearly exactly the
movements of its owner. While individuals regularly leave
their vehicles, they compulsively carry cell phones with them
all the time. A cell phone faithfully follows its owner beyond
public thoroughfares and into private residences, doctor's
offces, political headquarters, and other potentially
revealing locales. See id., at 395 (noting that “nearly threequarters
of smart phone users report being within fve feet
of their phones most of the time, with 12% admitting that
they even use their phones in the shower”); contrast Cardwell
v. Lewis, 417 U. S. 583, 590 (1974) (plurality opinion) (“A
car has little capacity for escaping public scrutiny.”). Accordingly,
when the Government tracks the location of a cell
312 CARPENTER v. UNITED STATES
Opinion of the Court
phone it achieves near perfect surveillance, as if it had
attached an ankle monitor to the phone's user.
Moreover, the retrospective quality of the data here gives
police access to a category of information otherwise unknowable.
In the past, attempts to reconstruct a person's movements
were limited by a dearth of records and the frailties
of recollection. With access to CSLI, the Government can
now travel back in time to retrace a person's whereabouts,
subject only to the retention polices of the wireless carriers,
which currently maintain records for up to fve years. Critically,
because location information is continually logged for
all of the 400 million devices in the United States—not just
those belonging to persons who might happen to come under
investigation—this newfound tracking capacity runs against
everyone. Unlike with the GPS device in Jones, police need
not even know in advance whether they want to follow a
particular individual, or when.
Whoever the suspect turns out to be, he has effectively
been tailed every moment of every day for fve years, and
the police may—in the Government's view—call upon the results
of that surveillance without regard to the constraints
of the Fourth Amendment. Only the few without cell
phones could escape this tireless and absolute surveillance.
The Government and Justice Kennedy contend, however,
that the collection of CSLI should be permitted because
the data is less precise than GPS information. Not to worry,
they maintain, because the location records did “not on their
own suffce to place [Carpenter] at the crime scene”; they
placed him within a wedge-shaped sector ranging from oneeighth
to four square miles. Brief for United States 24; see
post, at 337–338. Yet the Court has already rejected the
proposition that “inference insulates a search.” Kyllo, 533
U. S., at 36. From the 127 days of location data it received,
the Government could, in combination with other information,
deduce a detailed log of Carpenter's movements, including
when he was at the site of the robberies. And the GovernCite
as: 585 U. S. 296 (2018) 313
Opinion of the Court
ment thought the CSLI accurate enough to highlight it during
the closing argument of his trial. App. 131.
At any rate, the rule the Court adopts “must take account
of more sophisticated systems that are already in use or in
development.” Kyllo, 533 U. S., at 36. While the records
in this case refect the state of technology at the start of the
decade, the accuracy of CSLI is rapidly approaching GPSlevel
precision. As the number of cell sites has proliferated,
the geographic area covered by each cell sector has shrunk,
particularly in urban areas. In addition, with new technology
measuring the time and angle of signals hitting their
towers, wireless carriers already have the capability to
pinpoint a phone's location within 50 meters. Brief for
Electronic Frontier Foundation et al. as Amici Curiae 12
(describing triangulation methods that estimate a device's location
inside a given cell sector).
Accordingly, when the Government accessed CSLI from
the wireless carriers, it invaded Carpenter's reasonable expectation
of privacy in the whole of his physical movements.
B
The Government's primary contention to the contrary is
that the third-party doctrine governs this case. In its view,
cell-site records are fair game because they are “business
records” created and maintained by the wireless carriers.
The Government (along with Justice Kennedy) recognizes
that this case features new technology, but asserts that
the legal question nonetheless turns on a garden-variety request
for information from a third-party witness. Brief for
United States 32–34; post, at 331–333.
The Government's position fails to contend with the seismic
shifts in digital technology that made possible the tracking
of not only Carpenter's location but also everyone else's,
not for a short period but for years and years. Sprint Corporation
and its competitors are not your typical witnesses.
Unlike the nosy neighbor who keeps an eye on comings and
314 CARPENTER v. UNITED STATES
Opinion of the Court
goings, they are ever alert, and their memory is nearly infallible.
There is a world of difference between the limited
types of personal information addressed in Smith and Miller
and the exhaustive chronicle of location information casually
collected by wireless carriers today. The Government thus
is not asking for a straightforward application of the thirdparty
doctrine, but instead a signifcant extension of it to a
distinct category of information.
The third-party doctrine partly stems from the notion that
an individual has a reduced expectation of privacy in information
knowingly shared with another. But the fact of “diminished
privacy interests does not mean that the Fourth
Amendment falls out of the picture entirely.” Riley, 573
U. S., at 392. Smith and Miller, after all, did not rely solely
on the act of sharing. Instead, they considered “the nature
of the particular documents sought” to determine whether
“there is a legitimate `expectation of privacy' concerning
their contents.” Miller, 425 U. S., at 442. Smith pointed
out the limited capabilities of a pen register; as explained in
Riley, telephone call logs reveal little in the way of “identifying
information.” Smith, 442 U. S., at 742; Riley, 573 U. S.,
at 400. Miller likewise noted that checks were “not confdential
communications but negotiable instruments to be
used in commercial transactions.” 425 U. S., at 442. In mechanically
applying the third-party doctrine to this case, the
Government fails to appreciate that there are no comparable
limitations on the revealing nature of CSLI.
The Court has in fact already shown special solicitude for
location information in the third-party context. In Knotts,
the Court relied on Smith to hold that an individual has no
reasonable expectation of privacy in public movements that
he “voluntarily conveyed to anyone who wanted to look.”
Knotts, 460 U. S., at 281; see id., at 283 (discussing Smith).
But when confronted with more pervasive tracking, fve Justices
agreed that longer term GPS monitoring of even a vehiCite
as: 585 U. S. 296 (2018) 315
Opinion of the Court
cle traveling on public streets constitutes a search. Jones,
565 U. S., at 430 (Alito, J., concurring in judgment); id., at
415 (Sotomayor, J., concurring). Justice Gorsuch wonders
why “someone's location when using a phone” is sensitive,
post, at 388, and Justice Kennedy assumes that a person's
discrete movements “are not particularly private,” post,
at 336. Yet this case is not about “using a phone” or a person's
movement at a particular time. It is about a detailed
chronicle of a person's physical presence compiled every day,
every moment, over several years. Such a chronicle implicates
privacy concerns far beyond those considered in Smith
and Miller.
Neither does the second rationale underlying the thirdparty
doctrine—voluntary exposure—hold up when it comes
to CSLI. Cell phone location information is not truly
“shared” as one normally understands the term. In the frst
place, cell phones and the services they provide are “such a
pervasive and insistent part of daily life” that carrying one
is indispensable to participation in modern society. Riley,
573 U. S., at 385. Second, a cell phone logs a cell-site record
by dint of its operation, without any affrmative act on the
part of the user beyond powering up. Virtually any activity
on the phone generates CSLI, including incoming calls, texts,
or e-mails and countless other data connections that a phone
automatically makes when checking for news, weather, or
social media updates. Apart from disconnecting the phone
from the network, there is no way to avoid leaving behind a
trail of location data. As a result, in no meaningful sense
does the user voluntarily “assume[ ] the risk” of turning over
a comprehensive dossier of his physical movements. Smith,
442 U. S., at 745.
We therefore decline to extend Smith and Miller to the
collection of CSLI. Given the unique nature of cell phone
location information, the fact that the Government obtained
the information from a third party does not overcome Car316
CARPENTER v. UNITED STATES
Opinion of the Court
penter's claim to Fourth Amendment protection. The Government's
acquisition of the cell-site records was a search
within the meaning of the Fourth Amendment.
* * *
Our decision today is a narrow one. We do not express a
view on matters not before us: real-time CSLI or “tower
dumps” (a download of information on all the devices that
connected to a particular cell site during a particular interval).
We do not disturb the application of Smith and Miller
or call into question conventional surveillance techniques and
tools, such as security cameras. Nor do we address other
business records that might incidentally reveal location information.
Further, our opinion does not consider other collection
techniques involving foreign affairs or national security.
As Justice Frankfurter noted when considering new
innovations in airplanes and radios, the Court must tread
carefully in such cases, to ensure that we do not “embarrass
the future.” Northwest Airlines, Inc. v. Minnesota, 322
U. S. 292, 300 (1944).4
IV
Having found that the acquisition of Carpenter's CSLI was
a search, we also conclude that the Government must generally
obtain a warrant supported by probable cause before
acquiring such records. Although the “ultimate measure of
the constitutionality of a governmental search is `reasonableness,'
” our cases establish that warrantless searches are typically
unreasonable where “a search is undertaken by law
enforcement offcials to discover evidence of criminal wrongdoing.”
Vernonia School Dist. 47J v. Acton, 515 U. S. 646,
652–653 (1995). Thus, “[i]n the absence of a warrant, a
4 Justice Gorsuch faults us for not promulgating a complete code
addressing the manifold situations that may be presented by this new
technology—under a constitutional provision turning on what is “reasonable,”
no less. Post, at 395–397. Like Justice Gorsuch, we “do not
begin to claim all the answers today,” post, at 399, and therefore decide
no more than the case before us.
Cite as: 585 U. S. 296 (2018) 317
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search is reasonable only if it falls within a specifc exception
to the warrant requirement.” Riley, 573 U. S., at 382.
The Government acquired the cell-site records pursuant
to a court order issued under the Stored Communications
Act, which required the Government to show “reasonable
grounds” for believing that the records were “relevant and
material to an ongoing investigation.” 18 U. S. C. § 2703(d).
That showing falls well short of the probable cause required
for a warrant. The Court usually requires “some quantum
of individualized suspicion” before a search or seizure may
take place. United States v. Martinez-Fuerte, 428 U. S. 543,
560–561 (1976). Under the standard in the Stored Communications
Act, however, law enforcement need only show that
the cell-site evidence might be pertinent to an ongoing investigation—
a “gigantic” departure from the probable cause
rule, as the Government explained below. App. 34. Consequently,
an order issued under Section 2703(d) of the Act is
not a permissible mechanism for accessing historical cell-site
records. Before compelling a wireless carrier to turn over a
subscriber's CSLI, the Government's obligation is a familiar
one—get a warrant.
Justice Alito contends that the warrant requirement
simply does not apply when the Government acquires records
using compulsory process. Unlike an actual search, he
says, subpoenas for documents do not involve the direct taking
of evidence; they are at most a “constructive search” conducted
by the target of the subpoena. Post, at 374. Given
this lesser intrusion on personal privacy, Justice Alito argues
that the compulsory production of records is not held to
the same probable cause standard. In his view, this Court's
precedents set forth a categorical rule—separate and distinct
from the third-party doctrine—subjecting subpoenas to
lenient scrutiny without regard to the suspect's expectation
of privacy in the records. Post, at 368–379.
But this Court has never held that the Government may
subpoena third parties for records in which the suspect has
a reasonable expectation of privacy. Almost all of the exam318
CARPENTER v. UNITED STATES
Opinion of the Court
ples Justice Alito cites, see post, at 374–375, contemplated
requests for evidence implicating diminished privacy interests
or for a corporation's own books.5 The lone exception,
of course, is Miller, where the Court's analysis of the thirdparty
subpoena merged with the application of the thirdparty
doctrine. 425 U. S., at 444 (concluding that Miller
lacked the necessary privacy interest to contest the issuance
of a subpoena to his bank).
Justice Alito overlooks the critical issue. At some
point, the dissent should recognize that CSLI is an entirely
different species of business record—something that implicates
basic Fourth Amendment concerns about arbitrary
government power much more directly than corporate tax or
payroll ledgers. When confronting new concerns wrought
by digital technology, this Court has been careful not to uncritically
extend existing precedents. See Riley, 573 U. S.,
at 386 (“A search of the information on a cell phone bears
little resemblance to the type of brief physical search considered
[in prior precedents].”).
If the choice to proceed by subpoena provided a categorical
limitation on Fourth Amendment protection, no type of record
would ever be protected by the warrant requirement.
Under Justice Alito's view, private letters, digital contents
of a cell phone—any personal information reduced to docu-
5 See United States v. Dionisio, 410 U. S. 1, 14 (1973) (“No person can
have a reasonable expectation that others will not know the sound of his
voice”); Donovan v. Lone Steer, Inc., 464 U. S. 408, 411, 415 (1984) (payroll
and sales records); California Bankers Assn. v. Shultz, 416 U. S. 21, 67
(1974) (Bank Secrecy Act reporting requirements); See v. Seattle, 387 U. S.
541, 544 (1967) (fnancial books and records); United States v. Powell, 379
U. S. 48, 49, 57 (1964) (corporate tax records); McPhaul v. United States,
364 U. S. 372, 374, 382 (1960) (books and records of an organization);
United States v. Morton Salt Co., 338 U. S. 632, 634, 651–653 (1950) (Federal
Trade Commission reporting requirement); Oklahoma Press Publishing
Co. v. Walling, 327 U. S. 186, 189, 204–208 (1946) (payroll records);
Hale v. Henkel, 201 U. S. 43, 45, 75 (1906) (corporate books and papers).
Cite as: 585 U. S. 296 (2018) 319
Opinion of the Court
ment form, in fact—may be collected by subpoena for no reason
other than “offcial curiosity.” United States v. Morton
Salt Co., 338 U. S. 632, 652 (1950). Justice Kennedy declines
to adopt the radical implications of this theory, leaving
open the question whether the warrant requirement applies
“when the Government obtains the modern-day equivalents
of an individual's own `papers' or `effects,' even when those
papers or effects are held by a third party.” Post, at 332
(citing United States v. Warshak, 631 F. 3d 266, 283–288 (CA6
2010)). That would be a sensible exception, because it
would prevent the subpoena doctrine from overcoming any
reasonable expectation of privacy. If the third-party doctrine
does not apply to the “modern-day equivalents of an
individual's own `papers' or `effects,' ” then the clear implication
is that the documents should receive full Fourth Amendment
protection. We simply think that such protection
should extend as well to a detailed log of a person's movements
over several years.
This is certainly not to say that all orders compelling the
production of documents will require a showing of probable
cause. The Government will be able to use subpoenas to
acquire records in the overwhelming majority of investigations.
We hold only that a warrant is required in the rare
case where the suspect has a legitimate privacy interest in
records held by a third party.
Further, even though the Government will generally need
a warrant to access CSLI, case-specifc exceptions may support
a warrantless search of an individual's cell-site records
under certain circumstances. “One well-recognized exception
applies when ` “the exigencies of the situation” make the
needs of law enforcement so compelling that [a] warrantless
search is objectively reasonable under the Fourth Amendment.'
” Kentucky v. King, 563 U. S. 452, 460 (2011) (quoting
Mincey v. Arizona, 437 U. S. 385, 394 (1978)). Such exigen320
CARPENTER v. UNITED STATES
Opinion of the Court
cies include the need to pursue a feeing suspect, protect individuals
who are threatened with imminent harm, or prevent
the imminent destruction of evidence. 563 U. S., at 460,
and n. 3.
As a result, if law enforcement is confronted with an urgent
situation, such fact-specifc threats will likely justify the
warrantless collection of CSLI. Lower courts, for instance,
have approved warrantless searches related to bomb threats,
active shootings, and child abductions. Our decision today
does not call into doubt warrantless access to CSLI in such
circumstances. While police must get a warrant when collecting
CSLI to assist in the mine-run criminal investigation,
the rule we set forth does not limit their ability to respond
to an ongoing emergency.
* * *
As Justice Brandeis explained in his famous dissent, the
Court is obligated—as “[s]ubtler and more far-reaching
means of invading privacy have become available to the Government”—
to ensure that the “progress of science” does not
erode Fourth Amendment protections. Olmstead v. United
States, 277 U. S. 438, 473–474 (1928). Here the progress of
science has afforded law enforcement a powerful new tool to
carry out its important responsibilities. At the same time,
this tool risks Government encroachment of the sort the
Framers, “after consulting the lessons of history,” drafted
the Fourth Amendment to prevent. Di Re, 332 U. S., at 595.
We decline to grant the state unrestricted access to a wireless
carrier's database of physical location information. In
light of the deeply revealing nature of CSLI, its depth,
breadth, and comprehensive reach, and the inescapable and
automatic nature of its collection, the fact that such information
is gathered by a third party does not make it any less
deserving of Fourth Amendment protection. The Government's
acquisition of the cell-site records here was a search
under that Amendment.
Cite as: 585 U. S. 296 (2018) 321
Kennedy, J., dissenting
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 Kennedy, with whom Justice Thomas and Justice
Alito join, dissenting.
This case involves new technology, but the Court's stark
departure from relevant Fourth Amendment precedents and
principles is, in my submission, unnecessary and incorrect,
requiring this respectful dissent.
The new rule the Court seems to formulate puts needed,
reasonable, accepted, lawful, and congressionally authorized
criminal investigations at serious risk in serious cases, often
when law enforcement seeks to prevent the threat of violent
crimes. And it places undue restrictions on the lawful and
necessary enforcement powers exercised not only by the
Federal Government, but also by law enforcement in every
State and locality throughout the Nation. Adherence to this
Court's longstanding precedents and analytic framework
would have been the proper and prudent way to resolve
this case.
The Court has twice held that individuals have no Fourth
Amendment interests in business records which are possessed,
owned, and controlled by a third party. United
States v. Miller, 425 U. S. 435 (1976); Smith v. Maryland, 442
U. S. 735 (1979). This is true even when the records contain
personal and sensitive information. So when the Government
uses a subpoena to obtain, for example, bank records,
telephone records, and credit card statements from the businesses
that create and keep these records, the Government
does not engage in a search of the business' customers within
the meaning of the Fourth Amendment.
In this case petitioner challenges the Government's right
to use compulsory process to obtain a now-common kind of
business record: cell-site records held by cell phone service
322 CARPENTER v. UNITED STATES
Kennedy, J., dissenting
providers. The Government acquired the records through
an investigative process enacted by Congress. Upon approval
by a neutral magistrate, and based on the Government's
duty to show reasonable necessity, it authorizes the
disclosure of records and information that are under the control
and ownership of the cell phone service provider, not
its customer. Petitioner acknowledges that the Government
may obtain a wide variety of business records using compulsory
process, and he does not ask the Court to revisit its
precedents. Yet he argues that, under those same precedents,
the Government searched his records when it used
court-approved compulsory process to obtain the cell-site information
at issue here.
Cell-site records, however, are no different from the many
other kinds of business records the Government has a lawful
right to obtain by compulsory process. Customers like petitioner
do not own, possess, control, or use the records, and
for that reason have no reasonable expectation that they cannot
be disclosed pursuant to lawful compulsory process.
The Court today disagrees. It holds for the frst time that
by using compulsory process to obtain records of a business
entity, the Government has not just engaged in an impermissible
action, but has conducted a search of the business' customer.
The Court further concludes that the search in this
case was unreasonable and the Government needed to get a
warrant to obtain more than six days of cell-site records.
In concluding that the Government engaged in a search,
the Court unhinges Fourth Amendment doctrine from the
property-based concepts that have long grounded the analytic
framework that pertains in these cases. In doing so it
draws an unprincipled and unworkable line between cell-site
records on the one hand and fnancial and telephonic records
on the other. According to today's majority opinion, the
Government can acquire a record of every credit card purchase
and phone call a person makes over months or years
without upsetting a legitimate expectation of privacy. But,
Cite as: 585 U. S. 296 (2018) 323
Kennedy, J., dissenting
in the Court's view, the Government crosses a constitutional
line when it obtains a court's approval to issue a subpoena for
more than six days of cell-site records in order to determine
whether a person was within several hundred city blocks of
a crime scene. That distinction is illogical and will frustrate
principled application of the Fourth Amendment in many
routine yet vital law enforcement operations.
It is true that the Cyber Age has vast potential both to
expand and restrict individual freedoms in dimensions not
contemplated in earlier times. See Packingham v. North
Carolina, 582 U. S. 98, 104–105 (2017). For the reasons
that follow, however, there is simply no basis here for concluding
that the Government interfered with information
that the cell phone customer, either from a legal or commonsense
standpoint, should have thought the law would deem
owned or controlled by him.
I
Before evaluating the question presented it is helpful to
understand the nature of cell-site records, how they are commonly
used by cell phone service providers, and their proper
use by law enforcement.
When a cell phone user makes a call, sends a text message
or e-mail, or gains access to the Internet, the cell phone
establishes a radio connection to an antenna at a nearby cell
site. The typical cell site covers a more-or-less circular geographic
area around the site. It has three (or sometimes
six) separate antennas pointing in different directions.
Each provides cell service for a different 120-degree (or 60-
degree) sector of the cell site's circular coverage area. So a
cell phone activated on the north side of a cell site will connect
to a different antenna than a cell phone on the south
side.
Cell phone service providers create records each time a
cell phone connects to an antenna at a cell site. For a phone
call, for example, the provider records the date, time, and
324 CARPENTER v. UNITED STATES
Kennedy, J., dissenting
duration of the call; the phone numbers making and receiving
the call; and, most relevant here, the cell site used to make
the call, as well as the specifc antenna that made the connection.
The cell-site and antenna data points, together with
the date and time of connection, are known as cell-site location
information, or cell-site records. By linking an individual's
cell phone to a particular 120- or 60-degree sector of a
cell site's coverage area at a particular time, cell-site records
reveal the general location of the cell phone user.
The location information revealed by cell-site records is
imprecise, because an individual cell-site sector usually covers
a large geographic area. The FBI agent who offered
expert testimony about the cell-site records at issue here
testifed that a cell site in a city reaches between a half mile
and two miles in all directions. That means a 60-degree sector
covers between approximately one-eighth and two square
miles (and a 120-degree sector twice that area). To put that
in perspective, in urban areas cell-site records often would
reveal the location of a cell phone user within an area covering
between around a dozen and several hundred city blocks.
In rural areas cell-site records can be up to 40 times more
imprecise. By contrast, a Global Positioning System (GPS)
can reveal an individual's location within around 15 feet.
Major cell phone service providers keep cell-site records
for long periods of time. There is no law requiring them to
do so. Instead, providers contract with their customers to
collect and keep these records because they are valuable to
the providers. Among other things, providers aggregate
the records and sell them to third parties along with other
information gleaned from cell phone usage. This data can
be used, for example, to help a department store determine
which of various prospective store locations is likely to get
more foot traffc from middle-aged women who live in affuent
zip codes. The market for cell phone data is now
estimated to be in the billions of dollars. See Brief for Technology
Experts as Amici Curiae 23.
Cite as: 585 U. S. 296 (2018) 325
Kennedy, J., dissenting
Cell-site records also can serve an important investigative
function, as the facts of this case demonstrate. Petitioner,
Timothy Carpenter, along with a rotating group of accomplices,
robbed at least six RadioShack and T-Mobile stores
at gunpoint over a 2-year period. Five of those robberies
occurred in the Detroit area, each crime at least four miles
from the last. The sixth took place in Warren, Ohio, over
200 miles from Detroit.
The Government, of course, did not know all of these details
in 2011 when it began investigating Carpenter. In
April of that year police arrested four of Carpenter's coconspirators.
One of them confessed to committing nine
robberies in Michigan and Ohio between December 2010 and
March 2011. He identifed 15 accomplices who had participated
in at least one of those robberies; named Carpenter as
one of the accomplices; and provided Carpenter's cell phone
number to the authorities. The suspect also warned that
the other members of the conspiracy planned to commit more
armed robberies in the immediate future.
The Government at this point faced a daunting task.
Even if it could identify and apprehend the suspects, still it
had to link each suspect in this changing criminal gang to
specifc robberies in order to bring charges and convict.
And, of course, it was urgent that the Government take all
necessary steps to stop the ongoing and dangerous crime
spree.
Cell-site records were uniquely suited to this task. The
geographic dispersion of the robberies meant that, if Carpenter's
cell phone were within even a dozen to several hundred
city blocks of one or more of the stores when the different
robberies occurred, there would be powerful circumstantial
evidence of his participation; and this would be especially so
if his cell phone usually was not located in the sectors near
the stores except during the robbery times.
To obtain these records, the Government applied to Federal
Magistrate Judges for disclosure orders pursuant to § 2703(d)
326 CARPENTER v. UNITED STATES
Kennedy, J., dissenting
of the Stored Communications Act. That Act authorizes a
magistrate judge to issue an order requiring disclosure of
cell-site records if the Government demonstrates “specifc
and articulable facts showing that there are reasonable
grounds to believe” the records “are relevant and material
to an ongoing criminal investigation.” 18 U. S. C. §§ 2703(d),
2711(3). The full statutory provision is set out in the Appendix,
infra.
From Carpenter's primary service provider, MetroPCS,
the Government obtained records from between December
2010 and April 2011, based on its understanding that nine
robberies had occurred in that timeframe. The Government
also requested seven days of cell-site records from Sprint,
spanning the time around the robbery in Warren, Ohio. It
obtained two days of records.
These records confrmed that Carpenter's cell phone was
in the general vicinity of four of the nine robberies, including
the one in Ohio, at the times those robberies occurred.
II
The frst Clause of the Fourth Amendment provides that
“the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated.” The customary beginning
point in any Fourth Amendment search case is whether the
Government's actions constitute a “search” of the defendant's
person, house, papers, or effects, within the meaning of the
constitutional provision. If so, the next question is whether
that search was reasonable.
Here the only question necessary to decide is whether the
Government searched anything of Carpenter's when it used
compulsory process to obtain cell-site records from Carpenter's
cell phone service providers. This Court's decisions in
Miller and Smith dictate that the answer is no, as every
Court of Appeals to have considered the question has recognized.
See United States v. Thompson, 866 F. 3d 1149
(CA10 2017); United States v. Graham, 824 F. 3d 421 (CA4
Cite as: 585 U. S. 296 (2018) 327
Kennedy, J., dissenting
2016) (en banc); Carpenter v. United States, 819 F. 3d 880
(CA6 2016); United States v. Davis, 785 F. 3d 498 (CA11
2015) (en banc); In re Application of U. S. for Historical Cell
Site Data, 724 F. 3d 600 (CA5 2013).
A
Miller and Smith hold that individuals lack any protected
Fourth Amendment interests in records that are possessed,
owned, and controlled only by a third party. In Miller federal
law enforcement offcers obtained four months of the
defendant's banking records. 425 U. S., at 437–438. And in
Smith state police obtained records of the phone numbers
dialed from the defendant's home phone. 442 U. S., at 737.
The Court held in both cases that the offcers did not search
anything belonging to the defendants within the meaning of
the Fourth Amendment. The defendants could “assert neither
ownership nor possession” of the records because the
records were created, owned, and controlled by the companies.
Miller, supra, at 440; see Smith, supra, at 741. And
the defendants had no reasonable expectation of privacy in
information they “voluntarily conveyed to the [companies]
and exposed to their employees in the ordinary course of
business.” Miller, supra, at 442; see Smith, 442 U. S., at
744. Rather, the defendants “assumed the risk that the information
would be divulged to police.” Id., at 745.
Miller and Smith have been criticized as being based on
too narrow a view of reasonable expectations of privacy.
See, e. g., Ashdown, The Fourth Amendment and the “Legitimate
Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1313–
1316 (1981). Those criticisms, however, are unwarranted.
The principle established in Miller and Smith is correct for
two reasons, the frst relating to a defendant's attenuated
interest in property owned by another, and the second relating
to the safeguards inherent in the use of compulsory
process.
First, Miller and Smith placed necessary limits on the
ability of individuals to assert Fourth Amendment interests
328 CARPENTER v. UNITED STATES
Kennedy, J., dissenting
in property to which they lack a “requisite connection.”
Minnesota v. Carter, 525 U. S. 83, 99 (1998) (Kennedy, J.,
concurring). Fourth Amendment rights, af ter all, are
personal. The Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects”—
not the persons, houses, papers, and effects of others.
(Emphasis added.)
The concept of reasonable expectations of privacy, frst announced
in Katz v. United States, 389 U. S. 347 (1967), sought
to look beyond the “arcane distinctions developed in property
and tort law” in evaluating whether a person has a suffcient
connection to the thing or place searched to assert
Fourth Amendment interests in it. Rakas v. Illinois, 439
U. S. 128, 143 (1978). Yet “property concepts” are, nonetheless,
fundamental “in determining the presence or absence
of the privacy interests protected by that Amendment.”
Id., at 143–144, n. 12. This is so for at least two reasons.
First, as a matter of settled expectations from the law of
property, individuals often have greater expectations of privacy
in things and places that belong to them, not to others.
And second, the Fourth Amendment's protections must remain
tethered to the text of that Amendment, which, again,
protects only a person's own “persons, houses, papers, and
effects.”
Katz did not abandon reliance on property-based concepts.
The Court in Katz analogized the phone booth used
in that case to a friend's apartment, a taxicab, and a hotel
room. 389 U. S., at 352, 359. So when the defendant “shu[t]
the door behind him” and “pa[id] the toll,” id., at 352, he had
a temporary interest in the space and a legitimate expectation
that others would not intrude, much like the interest a
hotel guest has in a hotel room, Stoner v. California, 376
U. S. 483 (1964), or an overnight guest has in a host's home,
Minnesota v. Olson, 495 U. S. 91 (1990). The Government
intruded on that space when it attached a listening device to
Cite as: 585 U. S. 296 (2018) 329
Kennedy, J., dissenting
the phone booth. Katz, 389 U. S., at 348. (And even so, the
Court made it clear that the Government's search could have
been reasonable had there been judicial approval on a casespecifc
basis, which, of course, did occur here. Id., at 357–
359.)
Miller and Smith set forth an important and necessary
limitation on the Katz framework. They rest upon the commonsense
principle that the absence of property law analogues
can be dispositive of privacy expectations. The defendants
in those cases could expect that the third-party
businesses could use the records the companies collected,
stored, and classifed as their own for any number of business
and commercial purposes. The businesses were not bailees
or custodians of the records, with a duty to hold the records
for the defendants' use. The defendants could make no argument
that the records were their own papers or effects.
See Miller, supra, at 440 (“the documents subpoenaed here
are not respondent's `private papers' ”); Smith, supra, at 741
(“petitioner obviously cannot claim that his `property' was
invaded”). The records were the business entities' records,
plain and simple. The defendants had no reason to believe
the records were owned or controlled by them and so could
not assert a reasonable expectation of privacy in the records.
The second principle supporting Miller and Smith is the
longstanding rule that the Government may use compulsory
process to compel persons to disclose documents and other
evidence within their possession and control. See United
States v. Nixon, 418 U. S. 683, 709 (1974) (it is an “ancient
proposition of law” that “the public has a right to every
man's evidence” (internal quotation marks and alterations
omitted)). A subpoena is different from a warrant in its
force and intrusive power. While a warrant allows the Government
to enter and seize and make the examination itself,
a subpoena simply requires the person to whom it is directed
to make the disclosure. A subpoena, moreover, provides the
330 CARPENTER v. UNITED STATES
Kennedy, J., dissenting
recipient the “opportunity to present objections” before complying,
which further mitigates the intrusion. Oklahoma
Press Publishing Co. v. Walling, 327 U. S. 186, 195 (1946).
For those reasons this Court has held that a subpoena for
records, although a “constructive” search subject to Fourth
Amendment constraints, need not comply with the procedures
applicable to warrants—even when challenged by the
person to whom the records belong. Id., at 202, 208.
Rather, a subpoena complies with the Fourth Amendment's
reasonableness requirement so long as it is “ `suffciently limited
in scope, relevant in purpose, and specifc in directive
so that compliance will not be unreasonably burdensome.' ”
Donovan v. Lone Steer, Inc., 464 U. S. 408, 415 (1984). Persons
with no meaningful interests in the records sought by
a subpoena, like the defendants in Miller and Smith, have
no rights to object to the records' disclosure—much less to
assert that the Government must obtain a warrant to compel
disclosure of the records. See Miller, 425 U. S., at 444–446;
SEC v. Jerry T. O'Brien, Inc., 467 U. S. 735, 742–743 (1984).
Based on Miller and Smith and the principles underlying
those cases, it is well established that subpoenas may be used
to obtain a wide variety of records held by businesses, even
when the records contain private information. See 2 W. La-
Fave, Search and Seizure § 4.13 (5th ed. 2012). Credit cards
are a prime example. State and federal law enforcement,
for instance, often subpoena credit card statements to develop
probable cause to prosecute crimes ranging from drug
traffcking and distribution to healthcare fraud to tax evasion.
See United States v. Phibbs, 999 F. 2d 1053 (CA6 1993)
(drug distribution); McCune v. DOJ, 592 Fed. Appx. 287
(CA5 2014) (healthcare fraud); United States v. Green, 305
F. 3d 422 (CA6 2002) (drug traffcking and tax evasion); see
also 12 U. S. C. §§ 3402(4), 3407 (allowing the Government to
subpoena fnancial records if “there is reason to believe that
the records sought are relevant to a legitimate law enforcement
inquiry”). Subpoenas also may be used to obtain vehiCite
as: 585 U. S. 296 (2018) 331
Kennedy, J., dissenting
cle registration records, hotel records, employment records,
and records of utility usage, to name just a few other examples.
See 1 LaFave, supra, § 2.7(c).
And law enforcement offcers are not alone in their reliance
on subpoenas to obtain business records for legitimate
investigations. Subpoenas also are used for investigatory
purposes by state and federal grand juries, see United States
v. Dionisio, 410 U. S. 1 (1973), state and federal administrative
agencies, see Oklahoma Press, supra, and state and federal
legislative bodies, see McPhaul v. United States, 364
U. S. 372 (1960).
B
Carpenter does not question these traditional investigative
practices. And he does not ask the Court to reconsider
Miller and Smith. Carpenter argues only that, under
Miller and Smith, the Government may not use compulsory
process to acquire cell-site records from cell phone service
providers.
There is no merit in this argument. Cell-site records, like
all the examples just discussed, are created, kept, classifed,
owned, and controlled by cell phone service providers, which
aggregate and sell this information to third parties. As in
Miller, Carpenter can “assert neither ownership nor possession”
of the records and has no control over them. 425 U. S.,
at 440.
Carpenter argues that he has Fourth Amendment interests
in the cell-site records because they are in essence his
personal papers by operation of 47 U. S. C. § 222. That statute
imposes certain restrictions on how providers may use
“customer proprietary network information”—a term that
encompasses cell-site records. §§ 222(c), (h)(1)(A). The
statute in general prohibits providers from disclosing personally
identifable cell-site records to private third parties.
§ 222(c)(1). And it allows customers to request cell-site records
from the provider. § 222(c)(2).
332 CARPENTER v. UNITED STATES
Kennedy, J., dissenting
Carpenter's argument is unpersuasive, however, for § 222
does not grant cell phone customers any meaningful interest
in cell-site records. The statute's confdentiality protections
may be overridden by the interests of the providers or the
Government. The providers may disclose the records “to
protect the[ir] rights or property” or to “initiate, render, bill,
and collect for telecommunications services.” §§ 222(d)(1),
(2). They also may disclose the records “as required by
law”—which, of course, is how they were disclosed in this
case. § 222(c)(1). Nor does the statute provide customers
any practical control over the records. Customers do not
create the records; they have no say in whether or for how
long the records are stored; and they cannot require the records
to be modifed or destroyed. Even their right to request
access to the records is limited, for the statute “does
not preclude a carrier from being reimbursed by the customers
. . . for the costs associated with making such disclosures.”
H. R. Rep. No. 104–204, pt. 1, p. 90 (1995). So in
every legal and practical sense the “network information”
regulated by § 222 is, under that statute, “proprietary” to
the service providers, not Carpenter. The Court does not
argue otherwise.
Because Carpenter lacks a requisite connection to the cellsite
records, he also may not claim a reasonable expectation
of privacy in them. He could expect that a third party—
the cell phone service provider—could use the information it
collected, stored, and classifed as its own for a variety of
business and commercial purposes.
All this is not to say that Miller and Smith are without
limits. Miller and Smith may not apply when the Government
obtains the modern-day equivalents of an individual's
own “papers” or “effects,” even when those papers or effects
are held by a third party. See Ex parte Jackson, 96 U. S.
727, 733 (1878) (letters held by mail carrier); United States
v. Warshak, 631 F. 3d 266, 283–288 (CA6 2010) (e-mails held
by Internet service provider). As already discussed, however,
this case does not involve property or a bailment of
Cite as: 585 U. S. 296 (2018) 333
Kennedy, J., dissenting
that sort. Here the Government's acquisition of cell-site
records falls within the heartland of Miller and Smith.
In fact, Carpenter's Fourth Amendment objection is even
weaker than those of the defendants in Miller and Smith.
Here the Government did not use a mere subpoena to obtain
the cell-site records. It acquired the records only after it
proved to a Magistrate Judge reasonable grounds to believe
that the records were relevant and material to an ongoing
criminal investigation. See 18 U. S. C. § 2703(d). So even if
§ 222 gave Carpenter some attenuated interest in the records,
the Government's conduct here would be reasonable
under the standards governing subpoenas. See Donovan,
464 U. S., at 415.
Under Miller and Smith, then, a search of the sort that
requires a warrant simply did not occur when the Government
used court-approved compulsory process, based on a
fnding of reasonable necessity, to compel a cell phone service
provider, as owner, to disclose cell-site records.
III
The Court rejects a straightforward application of Miller
and Smith. It concludes instead that applying those cases
to cell-site records would work a “signifcant extension” of
the principles underlying them, ante, at 314, and holds that
the acquisition of more than six days of cell-site records constitutes
a search, ante, at 310, n. 3.
In my respectful view the majority opinion misreads this
Court's precedents, old and recent, and transforms Miller
and Smith into an unprincipled and unworkable doctrine.
The Court's newly conceived constitutional standard will
cause confusion; will undermine traditional and important
law enforcement practices; and will allow the cell phone to
become a protected medium that dangerous persons will use
to commit serious crimes.
A
The Court errs at the outset by attempting to sidestep
Miller and Smith. The Court frames this case as following
334 CARPENTER v. UNITED STATES
Kennedy, J., dissenting
instead from United States v. Knotts, 460 U. S. 276 (1983),
and United States v. Jones, 565 U. S. 400 (2012). Those
cases, the Court suggests, establish that “individuals have a
reasonable expectation of privacy in the whole of their physical
movements.” Ante, at 306–307, 310.
Knotts held just the opposite: “A person traveling in an
automobile on public thoroughfares has no reasonable expectation
of privacy in his movements from one place to another.”
460 U. S., at 281. True, the Court in Knotts also
suggested that “different constitutional principles may be
applicable” to “dragnet-type law enforcement practices.”
Id., at 284. But by dragnet practices the Court was referring
to “ `twenty-four hour surveillance of any citizen of this
country . . . without judicial knowledge or supervision.' ”
Id., at 283.
Those “different constitutional principles” mentioned in
Knotts, whatever they may be, do not apply in this case.
Here the Stored Communications Act requires a neutral judicial
offcer to confrm in each case that the Government has
“reasonable grounds to believe” the cell-site records “are relevant
and material to an ongoing criminal investigation.”
18 U. S. C. § 2703(d). This judicial check mitigates the
Court's concerns about “ `a too permeating police surveillance.'
” Ante, at 305 (quoting United States v. Di Re, 332
U. S. 581, 595 (1948)). Here, even more so than in Knotts,
“ `reality hardly suggests abuse.' ” 460 U. S., at 283.
The Court's reliance on Jones fares no better. In Jones
the Government installed a GPS tracking device on the defendant's
automobile. The Court held the Government
searched the automobile because it “physically occupied private
property [of the defendant] for the purpose of obtaining
information.” 565 U. S., at 404. So in Jones it was “not
necessary to inquire about the target's expectation of privacy
in his vehicle's movements.” Grady v. North Carolina,
575 U. S. 306, 309 (2015) (per curiam).
Cite as: 585 U. S. 296 (2018) 335
Kennedy, J., dissenting
Despite that clear delineation of the Court's holding in
Jones, the Court today declares that Jones applied the “ `different
constitutional principles' ” alluded to in Knotts to establish
that an individual has an expectation of privacy in
the sum of his whereabouts. Ante, at 306–307, 310. For
that proposition the majority relies on the two concurring
opinions in Jones, one of which stated that “longer term GPS
monitoring in investigations of most offenses impinges on expectations
of privacy.” 565 U. S., at 430 (Alito, J., concurring
in judgment). But Jones involved direct governmental
surveillance of a defendant's automobile without judicial authorization—
specifcally, GPS surveillance accurate within
50 to 100 feet. Id., at 402–403 (majority opinion). Even assuming
that the different constitutional principles mentioned
in Knotts would apply in a case like Jones—a proposition the
Court was careful not to announce in Jones, supra, at 412–
413—those principles are inapplicable here. Cases like this
one, where the Government uses court-approved compulsory
process to obtain records owned and controlled by a third
party, are governed by the two majority opinions in Miller
and Smith.
B
The Court continues its analysis by misinterpreting Miller
and Smith, and then it reaches the wrong outcome on these
facts even under its fawed standard.
The Court appears, in my respectful view, to read Miller
and Smith to establish a balancing test. For each “qualitatively
different category” of information, the Court suggests,
the privacy interests at stake must be weighed against the
fact that the information has been disclosed to a third party.
See ante, at 309–310, 313–316. When the privacy interests
are weighty enough to “overcome” the third-party disclosure,
the Fourth Amendment's protections apply. See ante, at 315.
That is an untenable reading of Miller and Smith. As
already discussed, the fact that information was relinquished
336 CARPENTER v. UNITED STATES
Kennedy, J., dissenting
to a third party was the entire basis for concluding that the
defendants in those cases lacked a reasonable expectation
of privacy. Miller and Smith do not establish the kind of
category-by-category balancing the Court today prescribes.
But suppose the Court were correct to say that Miller and
Smith rest on so imprecise a foundation. Still the Court
errs, in my submission, when it concludes that cell-site records
implicate greater privacy interests—and thus deserve
greater Fourth Amendment protection—than fnancial records
and telephone records.
Indeed, the opposite is true. A person's movements are
not particularly private. As the Court recognized in
Knotts, when the defendant there “traveled over the public
streets he voluntarily conveyed to anyone who wanted to
look the fact that he was traveling over particular roads in
a particular direction, the fact of whatever stops he made,
and the fact of his fnal destination.” 460 U. S., at 281–282.
Today expectations of privacy in one's location are, if anything,
even less reasonable than when the Court decided
Knotts over 30 years ago. Millions of Americans choose to
share their location on a daily basis, whether by using a variety
of location-based services on their phones, or by sharing
their location with friends and the public at large via social
media.
And cell-site records, as already discussed, disclose a person's
location only in a general area. The records at issue
here, for example, revealed Carpenter's location within an
area covering between around a dozen and several hundred
city blocks. “Areas of this scale might encompass bridal
stores and Bass Pro Shops, gay bars and straight ones, a
Methodist church and the local mosque.” 819 F. 3d 880, 889
(CA6 2016). These records could not reveal where Carpenter
lives and works, much less his “ `familial, political, professional,
religious, and sexual associations.' ” Ante, at 311
(quoting Jones, supra, at 415 (Sotomayor, J., concurring)).
By contrast, fnancial records and telephone records do
“ `revea[l] . . . personal affairs, opinions, habits and associaCite
as: 585 U. S. 296 (2018) 337
Kennedy, J., dissenting
tions.' ” Miller, 425 U. S., at 451 (Brennan, J., dissenting);
see Smith, 442 U. S., at 751 (Marshall, J., dissenting). What
persons purchase and to whom they talk might disclose how
much money they make; the political and religious organizations
to which they donate; whether they have visited a psychiatrist,
plastic surgeon, abortion clinic, or AIDS treatment
center; whether they go to gay bars or straight ones; and
who are their closest friends and family members. The
troves of intimate information the Government can and does
obtain using fnancial records and telephone records dwarfs
what can be gathered from cell-site records.
Still, the Court maintains, cell-site records are “unique”
because they are “comprehensive” in their reach; allow for
retrospective collection; are “easy, cheap, and effcient compared
to traditional investigative tools”; and are not exposed
to cell phone service providers in a meaningfully voluntary
manner. Ante, at 311, 315–316, 320. But many other kinds
of business records can be so described. Financial records
are of vast scope. Banks and credit card companies keep a
comprehensive account of almost every transaction an individual
makes on a daily basis. “With just the click of a button,
the Government can access each [company's] deep repository
of historical [fnancial] information at practically no
expense.” Ante, at 311. And the decision whether to
transact with banks and credit card companies is no more or
less voluntary than the decision whether to use a cell phone.
Today, just as when Miller was decided, “ `it is impossible to
participate in the economic life of contemporary society without
maintaining a bank account.' ” 425 U. S., at 451 (Brennan,
J., dissenting). But this Court, nevertheless, has held
that individuals do not have a reasonable expectation of privacy
in fnancial records.
Perhaps recognizing the diffculty of drawing the constitutional
line between cell-site records and fnancial and telephonic
records, the Court posits that the accuracy of cell-site
records “is rapidly approaching GPS-level precision.” Ante,
at 313. That is certainly plausible in the era of cyber technol338
CARPENTER v. UNITED STATES
Kennedy, J., dissenting
ogy, yet the privacy interests associated with location
information, which is often disclosed to the public at large,
still would not outweigh the privacy interests implicated by
fnancial and telephonic records.
Perhaps more important, those future developments are
no basis upon which to resolve this case. In general, the
Court “risks error by elaborating too fully on the Fourth
Amendment implications of emerging technology before its
role in society has become clear.” Ontario v. Quon, 560
U. S. 746, 759 (2010). That judicial caution, prudent in most
cases, is imperative in this one.
Technological changes involving cell phones have complex
effects on crime and law enforcement. Cell phones make
crimes easier to coordinate and conceal, while also providing
the Government with new investigative tools that may have
the potential to upset traditional privacy expectations. See
Kerr, An Equilibrium-Adjustment Theory of the Fourth
Amendment, 125 Harv. L. Rev. 476, 512–517 (2011). How
those competing effects balance against each other, and how
property norms and expectations of privacy form around
new technology, often will be diffcult to determine during
periods of rapid technological change. In those instances,
and where the governing legal standard is one of reasonableness,
it is wise to defer to legislative judgments like the one
embodied in § 2703(d) of the Stored Communications Act.
See Jones, 565 U. S., at 430 (Alito, J., concurring). In
§ 2703(d) Congress weighed the privacy interests at stake
and imposed a judicial check to prevent executive overreach.
The Court should be wary of upsetting that legislative balance
and erecting constitutional barriers that foreclose further
legislative instructions. See Quon, supra, at 759. The
last thing the Court should do is incorporate an arbitrary
and outside limit—in this case six days' worth of cell-site
records—and use it as the foundation for a new constitutional
framework. The Court's decision runs roughshod over the
mechanism Congress put in place to govern the acquisition
Cite as: 585 U. S. 296 (2018) 339
Kennedy, J., dissenting
of cell-site records and closes off further legislative debate
on these issues.
C
The Court says its decision is a “narrow one.” Ante, at
316. But its reinterpretation of Miller and Smith will have
dramatic consequences for law enforcement, courts, and
society as a whole.
Most immediately, the Court's holding that the Government
must get a warrant to obtain more than six days of
cell-site records limits the effectiveness of an important investigative
tool for solving serious crimes. As this case
demonstrates, cell-site records are uniquely suited to help
the Government develop probable cause to apprehend some
of the Nation's most dangerous criminals: serial killers, rapists,
arsonists, robbers, and so forth. See also, e. g., Davis,
785 F. 3d, at 500–501 (armed robbers); Brief for State of Alabama
et al. as Amici Curiae 21–22 (serial killer). These records
often are indispensable at the initial stages of investigations
when the Government lacks the evidence necessary to
obtain a warrant. See United States v. Pembrook, 876 F. 3d
812, 816–819 (CA6 2017). And the long-term nature of many
serious crimes, including serial crimes and terrorism offenses,
can necessitate the use of signifcantly more than six
days of cell-site records. The Court's arbitrary 6-day cutoff
has the perverse effect of nullifying Congress' reasonable
framework for obtaining cell-site records in some of the most
serious criminal investigations.
The Court's decision also will have ramifcations that extend
beyond cell-site records to other kinds of information
held by third parties, yet the Court fails “to provide clear
guidance to law enforcement” and courts on key issues raised
by its reinterpretation of Miller and Smith. Riley v. California,
573 U. S. 373, 398 (2014).
First, the Court's holding is premised on cell-site records
being a “distinct category of information” from other business
records. Ante, at 314. But the Court does not explain
340 CARPENTER v. UNITED STATES
Kennedy, J., dissenting
what makes something a distinct category of information.
Whether credit card records are distinct from bank records;
whether payment records from digital wallet applications are
distinct from either; whether the electronic bank records available
today are distinct from the paper and microflm records
at issue in Miller; or whether cell-phone call records are distinct
from the home-phone call records at issue in Smith, are
just a few of the diffcult questions that require answers
under the Court's novel conception of Miller and Smith.
Second, the majority opinion gives courts and law
enforcement officers no indication how to determine
whether any particular category of information falls on the
fnancial-records side or the cell-site-records side of its
newly conceived constitutional line. The Court's multifactor
analysis—considering intimacy, comprehensiveness, expense,
retrospectivity, and voluntariness—puts the law on a new
and unstable foundation.
Third, even if a distinct category of information is deemed
to be more like cell-site records than fnancial records, courts
and law enforcement offcers will have to guess how much of
that information can be requested before a warrant is required.
The Court suggests that less than seven days of
location information may not require a warrant. See ante,
at 310, n. 3; see also ante, at 316 (expressing no opinion on
“real-time CSLI,” tower dumps, and security-camera footage).
But the Court does not explain why that is so, and
nothing in its opinion even alludes to the considerations that
should determine whether greater or lesser thresholds
should apply to information like IP addresses or website
browsing history.
Fourth, by invalidating the Government's use of courtapproved
compulsory process in this case, the Court calls
into question the subpoena practices of federal and state
grand juries, legislatures, and other investigative bodies, as
Justice Alito's opinion explains. See post, at 362–379 (dissenting
opinion). Yet the Court fails even to mention the
Cite as: 585 U. S. 296 (2018) 341
Appendix to opinion of Kennedy, J.
serious consequences this will have for the proper administration
of justice.
In short, the Court's new and uncharted course will inhibit
law enforcement and “keep defendants and judges guessing
for years to come.” Riley, 573 U. S., at 401 (internal quotation
marks omitted).
* * *
This case should be resolved by interpreting accepted
property principles as the baseline for reasonable expectations
of privacy. Here the Government did not search anything
over which Carpenter could assert ownership or control.
Instead, it issued a court-authorized subpoena to a
third party to disclose information it alone owned and controlled.
That should suffce to resolve this case.
Having concluded, however, that the Government
searched Carpenter when it obtained cell-site records from
his cell phone service providers, the proper resolution of this
case should have been to remand for the Court of Appeals
to determine in the frst instance whether the search was
reasonable. Most courts of appeals, believing themselves
bound by Miller and Smith, have not grappled with this
question. And the Court's refexive imposition of the warrant
requirement obscures important and diffcult issues,
such as the scope of Congress' power to authorize the Government
to collect new forms of information using processes
that deviate from traditional warrant procedures, and how
the Fourth Amendment's reasonableness requirement should
apply when the Government uses compulsory process instead
of engaging in an actual, physical search.
These reasons all lead to this respectful dissent.
APPENDIX
Ҥ 2703. Required disclosure of customer communications
or records
“(d) Requirements for Court Order.—A court order
for disclosure under subsection (b) or (c) may be issued by
342 CARPENTER v. UNITED STATES
Thomas, J., dissenting
any court that is a court of competent jurisdiction and shall
issue only if the governmental entity offers specifc and articulable
facts showing that there are reasonable grounds to
believe that the contents of a wire or electronic communication,
or the records or other information sought, are relevant
and material to an ongoing criminal investigation. In the
case of a State governmental authority, such a court order
shall not issue if prohibited by the law of such State. A
court issuing an order pursuant to this section, on a motion
made promptly by the service provider, may quash or modify
such order, if the information or records requested are unusually
voluminous in nature or compliance with such order
otherwise would cause an undue burden on such provider.”
Justice Thomas, dissenting.
This case should not turn on “whether” a search occurred.
Ante, at 300. It should turn, instead, on whose property was
searched. The Fourth Amendment guarantees individuals
the right to be secure from unreasonable searches of “their
persons, houses, papers, and effects.” (Emphasis added.)
In other words, “each person has the right to be secure
against unreasonable searches . . . in his own person, house,
papers, and effects.” Minnesota v. Carter, 525 U. S. 83, 92
(1998) (Scalia, J., concurring). By obtaining the cell-site records
of MetroPCS and Sprint, the Government did not
search Carpenter's property. He did not create the records,
he does not maintain them, he cannot control them, and he
cannot destroy them. Neither the terms of his contracts nor
any provision of law makes the records his. The records
belong to MetroPCS and Sprint.
The Court concludes that, although the records are not
Carpenter's, the Government must get a warrant because
Carpenter had a reasonable “expectation of privacy” in the
location information that they reveal. Ante, at 310. I
agree with Justice Kennedy, Justice Alito, Justice
Gorsuch, and every Court of Appeals to consider the question
that this is not the best reading of our precedents.
Cite as: 585 U. S. 296 (2018) 343
Thomas, J., dissenting
The more fundamental problem with the Court's opinion,
however, is its use of the “reasonable expectation of privacy”
test, which was frst articulated by Justice Harlan in Katz
v. United States, 389 U. S. 347, 360–361 (1967) (concurring
opinion). The Katz test has no basis in the text or history
of the Fourth Amendment. And, it invites courts to make
judgments about policy, not law. Until we confront the
problems with this test, Katz will continue to distort Fourth
Amendment jurisprudence. I respectfully dissent.
I
Katz was the culmination of a series of decisions applying
the Fourth Amendment to electronic eavesdropping. The
frst such decision was Olmstead v. United States, 277 U. S.
438 (1928), where federal offcers had intercepted the defendants'
conversations by tapping telephone lines near their
homes. Id., at 456–457. In an opinion by Chief Justice
Taft, the Court concluded that this wiretap did not violate
the Fourth Amendment. No “search” occurred, according
to the Court, because the offcers did not physically enter
the defendants' homes. Id., at 464–466. And neither the
telephone lines nor the defendants' intangible conversations
qualifed as “persons, houses, papers, [or] effects” within the
meaning of the Fourth Amendment. Ibid.1 In the ensuing
decades, this Court adhered to Olmstead and rejected
Fourth Amendment challenges to various methods of electronic
surveillance. See On Lee v. United States, 343 U. S.
747, 749–753 (1952) (use of microphone to overhear conversa-
1 Justice Brandeis authored the principal dissent in Olmstead. He consulted
the “underlying purpose,” rather than “the words of the [Fourth]
Amendment,” to conclude that the wiretap was a search. 277 U. S., at
476. In Justice Brandeis' view, the Framers “recognized the signifcance
of man's spiritual nature, of his feelings and of his intellect” and “sought
to protect Americans in their beliefs, their thoughts, their emotions and
their sensations.” Id., at 478. Thus, “every unjustifable intrusion by
the Government upon the privacy of the individual, whatever the means
employed,” should constitute an unreasonable search under the Fourth
Amendment. Ibid.
344 CARPENTER v. UNITED STATES
Thomas, J., dissenting
tions with confdential informant); Goldman v. United States,
316 U. S. 129, 131–132, 135–136 (1942) (use of detectaphone
to hear conversations in offce next door).
In the 1960s, however, the Court began to retreat from
Olmstead. In Silverman v. United States, 365 U. S. 505
(1961), for example, federal offcers had eavesdropped on the
defendants by driving a “spike mike” several inches into the
house they were occupying. Id., at 506–507. This was a
“search,” the Court held, because the “unauthorized physical
penetration into the premises” was an “actual intrusion
into a constitutionally protected area.” Id., at 509, 512.
The Court did not mention Olmstead's other holding that
intangible conversations are not “persons, houses, papers,
[or] effects.” That omission was signifcant. The Court
confrmed two years later that “[i]t follows from [Silverman]
that the Fourth Amendment may protect against the overhearing
of verbal statements as well as against the more
traditional seizure of `papers and effects.' ” Wong Sun v.
United States, 371 U. S. 471, 485 (1963); accord, Berger v.
New York, 388 U. S. 41, 51 (1967).
In Katz, the Court rejected Olmstead's remaining holding—
that eavesdropping is not a search absent a physical
intrusion into a constitutionally protected area. The federal
offcers in Katz had intercepted the defendant's conversations
by attaching an electronic device to the outside of a
public telephone booth. 389 U. S., at 348. The Court concluded
that this was a “search” because the offcers “violated
the privacy upon which [the defendant] justifably relied
while using the telephone booth.” Id., at 353. Although
the device did not physically penetrate the booth, the Court
overruled Olmstead and held that “the reach of [the Fourth]
Amendment cannot turn upon the presence or absence of a
physical intrusion.” 389 U. S., at 353. The Court did not
explain what should replace Olmstead's physical-intrusion
requirement. It simply asserted that “the Fourth AmendCite
as: 585 U. S. 296 (2018) 345
Thomas, J., dissenting
ment protects people, not places” and “what [a person] seeks
to preserve as private . . . may be constitutionally protected.”
389 U. S., at 351.
Justice Harlan's concurrence in Katz attempted to articulate
the standard that was missing from the majority opinion.
While Justice Harlan agreed that “ `the Fourth Amendment
protects people, not places,' ” he stressed that “[t]he question
. . . is what protection it affords to those people,” and “the
answer . . . requires reference to a `place.' ” Id., at 361.
Justice Harlan identifed a “twofold requirement” to determine
when the protections of the Fourth Amendment apply:
“frst that a person have exhibited an actual (subjective) expectation
of privacy and, second, that the expectation be one
that society is prepared to recognize as `reasonable.' ” Ibid.
Justice Harlan did not cite anything for this “expectation
of privacy” test, and the parties did not discuss it in their
briefs. The test appears to have been presented for the frst
time at oral argument by one of the defendant's lawyers.
See Winn, Katz and the Origins of the “Reasonable Expectation
of Privacy” Test, 40 McGeorge L. Rev. 1, 9–10 (2009).
The lawyer, a recent law-school graduate, apparently had an
“[e]piphany” while preparing for oral argument. Schneider,
Katz v. United States: The Untold Story, 40 McGeorge
L. Rev. 13, 18 (2009). He conjectured that, like the “reasonable
person” test from his Torts class, the Fourth Amendment
should turn on “whether a reasonable person . . . could
have expected his communication to be private.” Id., at 19.
The lawyer presented his new theory to the Court at oral
argument. See, e. g., Tr. of Oral Arg. in Katz v. United
States, O. T. 1967, No. 35, p. 5 (proposing a test of “whether
or not, objectively speaking, the communication was intended
to be private”); id., at 11 (“We propose a test using a
way that's not too dissimilar from the tort `reasonable man'
test”). After some questioning from the Justices, the lawyer
conceded that his test should also require individuals to
346 CARPENTER v. UNITED STATES
Thomas, J., dissenting
subjectively expect privacy. See id., at 12. With that modifcation,
Justice Harlan seemed to accept the lawyer's test
almost verbatim in his concurrence.
Although the majority opinion in Katz had little practical
signifcance after Congress enacted the Omnibus Crime Control
and Safe Streets Act of 1968, Justice Harlan's concurrence
profoundly changed our Fourth Amendment jurisprudence.
It took only one year for the full Court to adopt his
two-pronged test. See Terry v. Ohio, 392 U. S. 1, 10 (1968).
And by 1979, the Court was describing Justice Harlan's test
as the “lodestar” for determining whether a “search” had
occurred. Smith v. Maryland, 442 U. S. 735, 739 (1979).
Over time, the Court minimized the subjective prong of Justice
Harlan's test. See Kerr, Katz Has Only One Step: The
Irrelevance of Subjective Expectations, 82 U. Chi. L. Rev.
113 (2015). That left the objective prong—the “reasonable
expectation of privacy” test that the Court still applies
today. See ante, at 304; United States v. Jones, 565 U. S.
400, 406 (2012).
II
Under the Katz test, a “search” occurs whenever “government
offcers violate a person's `reasonable expectation of
privacy.' ” Jones, supra, at 406. The most glaring problem
with this test is that it has “no plausible foundation in the
text of the Fourth Amendment.” Carter, 525 U. S., at 97
(opinion of Scalia, J.). The Fourth Amendment, as relevant
here, protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches.” By defning “search” to mean “any violation of a
reasonable expectation of privacy,” the Katz test misconstrues
virtually every one of these words.
A
The Katz test distorts the original meaning of “searc[h]”—
the word in the Fourth Amendment that it purports to defne,
see ante, at 304; Smith, supra. Under the Katz test, the
government conducts a search anytime it violates someone's
Cite as: 585 U. S. 296 (2018) 347
Thomas, J., dissenting
“reasonable expectation of privacy.” That is not a normal
defnition of the word “search.”
At the founding, “search” did not mean a violation of someone's
reasonable expectation of privacy. The word was
probably not a term of art, as it does not appear in legal
dictionaries from the era. And its ordinary meaning was
the same as it is today: “ `[t]o look over or through for the
purpose of fnding something; to explore; to examine by inspection;
as, to search the house for a book; to search the
wood for a thief.' ” Kyllo v. United States, 533 U. S. 27, 32,
n. 1 (2001) (quoting N. Webster, An American Dictionary of
the English Language 66 (1828) (reprint 6th ed. 1989)); accord,
2 S. Johnson, A Dictionary of the English Language
(4th ed. 1773) (“[i]nquiry by looking into every suspected
place”); N. Bailey, An Universal Etymological English Dictionary
(22d ed. 1770) (“a seeking after, a looking for, &c.”);
2 J. Ash, The New and Complete Dictionary of the English
Language (2d ed. 1795) (“[a]n enquiry, an examination, the
act of seeking, an enquiry by looking into every suspected
place; a quest; a pursuit”); T. Sheridan, A Complete Dictionary
of the English Language (6th ed. 1796) (similar). The
word “search” was not associated with “reasonable expectation
of privacy” until Justice Harlan coined that phrase in
1967. The phrase “expectation(s) of privacy” does not appear
in the pre-Katz federal or state case reporters, the papers
of prominent Founders,2 early congressional documents
and debates,3 collections of early American English texts,4
or early American newspapers.5
2 National Archives, Library of Congress, Founders Online, https://
founders.archives.gov (all Internet materials as last visited June 18, 2018).
3 Library of Congress, A Century of Lawmaking for a New Nation, U. S.
Congressional Documents and Debates, 1774–1875 (May 1, 2003), https://
memory.loc.gov/ammem/amlaw/lawhome.html.
4 Corpus of Historical American English, https://corpus.byu.edu/coha;
Google Books (American), https://googlebooks.byu.edu/x.asp; Corpus of
Founding Era American English, https://lawncl.byu.edu/cofea.
5Readex, America's Historical Newspapers (2018), https://www.
readex.com/content/americas-historical-newspapers.
348 CARPENTER v. UNITED STATES
Thomas, J., dissenting
B
The Katz test strays even further from the text by focusing
on the concept of “privacy.” The word “privacy” does
not appear in the Fourth Amendment (or anywhere else in
the Constitution for that matter). Instead, the Fourth
Amendment references “[t]he right of the people to be secure.”
It then qualifes that right by limiting it to “persons”
and three specifc types of property: “houses, papers, and
effects.” By connecting the right to be secure to these four
specifc objects, “[t]he text of the Fourth Amendment refects
its close connection to property.” Jones, supra, at 405.
“[P]rivacy,” by contrast, “was not part of the political vocabulary
of the [founding]. Instead, liberty and privacy rights
were understood largely in terms of property rights. ”
Cloud, Property Is Privacy: Locke and Brandeis in the
Twenty-First Century, 55 Am. Crim. L. Rev. 37, 42 (2018).
Those who ratifed the Fourth Amendment were quite familiar
with the notion of security in property. Security in
property was a prominent concept in English law. See, e. g.,
3 W. Blackstone, Commentaries on the Laws of England
288 (1768) (“[E]very man's house is looked upon by the
law to be his castle”); 3 E. Coke, Institutes of Laws of
England 162 (6th ed. 1680) (“[F]or a man[']s house is his
Castle, & domus sua cuique est tutissimum refugium [each
man's home is his safest refuge]”). The political philosophy
of John Locke, moreover, “permeated the 18th-century
political scene in America.” Obergefell v. Hodges, 576
U. S. 644, 727 (2015) (Thomas, J., dissenting). For Locke,
every individual had a property right “in his own Person”
and in anything he “removed from the common state [of]
Nature” and “mixed his Labour with.” Second Treatise of
Civil Government § 27 (1690) (emphasis deleted). Because
property is “very unsecure” in the state of nature, id.,
§ 123, individuals form governments to obtain “a secure
Enjoyment of their Properties,” id., § 95. Once a government
is formed, however, it cannot be given “a Power to
destroy that which every one designs to secure”; it cannot
Cite as: 585 U. S. 296 (2018) 349
Thomas, J., dissenting
legitimately “endeavour to take away, and destroy the
[pr]operty of the People,” or exercise “an absolute power,
over [their] Lives, Liberties, and Estates.” Id., § 222.
The concept of security in property recognized by Locke
and the English legal tradition appeared throughout the materials
that inspired the Fourth Amendment. In Entick v.
Carrington, 19 How. St. Tr. 1029 (C. P. 1765)—a heralded
decision that the founding generation considered “the true
and ultimate expression of constitutional law,” Boyd v.
United States, 116 U. S. 616, 626 (1886)—Lord Camden explained
that “[t]he great end, for which men entered into
society, was to secure their property.” 19 How. St. Tr., at
1066. The American colonists echoed this reasoning in their
“widespread hostility” to the Crown's writs of assistance6—
a practice that inspired the Revolution and became “[t]he
driving force behind the adoption of the [Fourth] Amendment.”
United States v. Verdugo-Urquidez, 494 U. S. 259,
266 (1990). Prominent colonists decried the writs as destroying
“ `domestic security' ” by permitting broad searches
of homes. M. Smith, The Writs of Assistance Case 475
(1978) (quoting a 1772 Boston town meeting); see also id., at
562 (complaining that “ `every householder in this province,
will necessarily become less secure than he was before this
writ' ” (quoting a 1762 article in the Boston Gazette)); id., at
493 (complaining that the writs were “ `expressly contrary to
the common law, which ever regarded a man's house as his
castle, or a place of perfect security' ” (quoting a 1768 letter
from John Dickinson)). James Otis, who argued the famous
Writs of Assistance case, contended that the writs violated
“ `the fundamental Principl[e] of Law' ” that “ `[a] Man who is
quiet, is as secure in his House, as a Prince in his Castle.' ”
Id., at 339 (quoting John Adams' notes). John Adams at-
6 Writs of assistance were “general warrants” that gave “customs offcials
blanket authority to search where they pleased for goods imported
in violation of the British tax laws.” Stanford v. Texas, 379 U. S. 476,
481 (1965).
350 CARPENTER v. UNITED STATES
Thomas, J., dissenting
tended Otis' argument and later drafted Article XIV of the
Massachusetts Constitution,7 which served as a model for the
Fourth Amendment. See Clancy, The Framers' Intent: John
Adams, His Era, and the Fourth Amendment, 86 Ind. L. J.
979, 982 (2011); Donohue, The Original Fourth Amendment,
83 U. Chi. L. Rev. 1181, 1269 (2016) (Donohue). Adams
agreed that “[p]roperty must be secured, or liberty cannot
exist.” Discourse on Davila, in 6 The Works of John Adams
280 (C. Adams ed. 1851).
Of course, the founding generation understood that, by securing
their property, the Fourth Amendment would often
protect their privacy as well. See, e. g., Boyd, supra, at 630
(explaining that searches of houses invade “the privacies of
life”); Wilkes v. Wood, 19 How. St. Tr. 1153, 1154 (C. P. 1763)
(argument of counsel contending that seizures of papers
implicate “our most private concerns”). But the Fourth
Amendment's attendant protection of privacy does not justify
Katz's elevation of privacy as the sine qua non of the
Amendment. See T. Clancy, The Fourth Amendment: Its
History and Interpretation § 3.4.4, p. 78 (2008) (“[The Katz
test] confuse[s] the reasons for exercising the protected right
with the right itself. A purpose of exercising one's Fourth
Amendment rights might be the desire for privacy, but the
individual's motivation is not the right protected”); cf. United
States v. Gonzalez-Lopez, 548 U. S. 140, 145 (2006) (rejecting
“a line of reasoning that `abstracts from the right to its purposes,
and then eliminates the right' ”). As the majority
7 “Every subject has a right to be secure from all unreasonable searches,
and seizures, of his person, his houses, his papers, and all his possessions.
All warrants, therefore, are contrary to this right, if the cause or foundation
of them be not previously supported by oath or affrmation; and if the
order in the warrant to a civil offcer, to make search in suspected places,
or to arrest one or more suspected persons, or to seize their property, be
not accompanied with a special designation of the person or objects of
search, arrest, or seizure: And no warrant ought to be issued, but in cases,
and with the formalities, prescribed by the laws.” Mass. Const., pt. I,
Art. XIV (1780).
Cite as: 585 U. S. 296 (2018) 351
Thomas, J., dissenting
opinion in Katz recognized, the Fourth Amendment “cannot
be translated into a general constitutional `right to privacy,' ”
as its protections “often have nothing to do with privacy at
all.” 389 U. S., at 350. Justice Harlan's focus on privacy in
his concurrence—an opinion that was issued between Griswold
v. Connecticut, 381 U. S. 479 (1965), and Roe v. Wade,
410 U. S. 113 (1973)—refects privacy's status as the organizing
constitutional idea of the 1960s and 1970s. The organizing
constitutional idea of the founding era, by contrast, was
property.
C
In shifting the focus of the Fourth Amendment from property
to privacy, the Katz test also reads the words “persons,
houses, papers, and effects” out of the text. At its broadest
formulation, the Katz test would fnd a search “wherever an
individual may harbor a reasonable `expectation of privacy.' ”
Terry, 392 U. S., at 9 (emphasis added). The Court today,
for example, does not ask whether cell-site location records
are “persons, houses, papers, [or] effects” within the meaning
of the Fourth Amendment.8 Yet “persons, houses, papers,
and effects” cannot mean “anywhere” or “anything.” Katz's
catchphrase that “the Fourth Amendment protects people,
not places,” is not a serious attempt to reconcile the constitutional
text. See Carter, 525 U. S., at 98, n. 3 (opinion of
Scalia, J.). The Fourth Amendment obviously protects people;
“[t]he question . . . is what protection it affords to those
people.” Katz, 389 U. S., at 361 (Harlan, J., concurring).
The Founders decided to protect the people from unreason-
8 The answer to that question is not obvious. Cell-site location records
are business records that mechanically collect the interactions between a
person's cell phone and the company's towers; they are not private papers
and do not reveal the contents of any communications. Cf. Schnapper,
Unreasonable Searches and Seizures of Papers, 71 Va. L. Rev. 869, 923–
924 (1985) (explaining that business records that do not reveal “personal
or speech-related confdences” might not satisfy the original meaning of
“papers”).
352 CARPENTER v. UNITED STATES
Thomas, J., dissenting
able searches and seizures of four specifc things—persons,
houses, papers, and effects. They identifed those four categories
as “the objects of privacy protection to which the
Constitution would extend, leaving further expansion to the
good judgment . . . of the people through their representatives
in the legislature.” Carter, supra, at 97–98 (opinion of
Scalia, J.).
This limiting language was important to the Founders.
Madison's frst draft of the Fourth Amendment used a different
phrase: “their persons[,] their houses, their papers, and
their other property.” 1 Annals of Cong. 452 (1789) (emphasis
added). In one of the few changes made to Madison's
draft, the House Committee of Eleven changed “other property”
to “effects.” See House Committee of Eleven Report
(July 28, 1789), in N. Cogan, The Complete Bill of Rights 334
(2d ed. 2015). This change might have narrowed the Fourth
Amendment by clarifying that it does not protect real property
(other than houses). See Oliver v. United States, 466
U. S. 170, 177, and n. 7 (1984); Davies, Recovering the Original
Fourth Amendment, 98 Mich. L. Rev. 547, 709–714 (1999)
(Davies). Or the change might have broadened the Fourth
Amendment by clarifying that it protects commercial goods,
not just personal possessions. See Donohue 1301. Or it
might have done both. Whatever its ultimate effect, the
change reveals that the Founders understood the phrase
“persons, houses, papers, and effects” to be an important
measure of the Fourth Amendment's overall scope. See Davies
710. The Katz test, however, displaces and renders
that phrase entirely “superfuous.” Jones, 565 U. S., at 405.
D
“[P]ersons, houses, papers, and effects” are not the only
words that the Katz test reads out of the Fourth Amendment.
The Fourth Amendment specifes that the people
have a right to be secure from unreasonable searches
of “their” persons, houses, papers, and effects. Although
Cite as: 585 U. S. 296 (2018) 353
Thomas, J., dissenting
phrased in the plural, “[t]he obvious meaning of [`their'] is
that each person has the right to be secure against unreasonable
searches and seizures in his own person, house, papers,
and effects.” Carter, supra, at 92 (opinion of Scalia, J.); see
also District of Columbia v. Heller, 554 U. S. 570, 579 (2008)
(explaining that the Constitution uses the plural phrase “the
people” to “refer to individual rights, not `collective' rights”).
Stated differently, the word “their” means, at the very least,
that individuals do not have Fourth Amendment rights in
someone else's property. See Carter, supra, at 92–94 (opinion
of Scalia, J.). Yet, under the Katz test, individuals can
have a reasonable expectation of privacy in another person's
property. See, e. g., Carter, supra, at 89 (majority opinion)
(“[A] person may have a legitimate expectation of privacy in
the house of someone else”). Until today, our precedents
have not acknowledged that individuals can claim a reasonable
expectation of privacy in someone else's business records.
See ante, at 322 (Kennedy, J., dissenting). But the
Court erases that line in this case, at least for cell-site location
records. In doing so, it confrms that the Katz test does
not necessarily require an individual to prove that the government
searched his person, house, paper, or effect.
Carpenter attempts to argue that the cell-site records are,
in fact, his “papers,” see Brief for Petitioner 32–35; Reply
Brief 14–15, but his arguments are unpersuasive, see ante,
at 331–332 (opinion of Kennedy, J.); post, at 379–383 (Alito,
J., dissenting). Carpenter stipulated below that the cell-site
records are the business records of Sprint and MetroPCS.
See App. 51. He cites no property law in his briefs to this
Court, and he does not explain how he has a property right
in the companies' records under the law of any jurisdiction
at any point in American history. If someone stole these
records from Sprint or MetroPCS, Carpenter does not
argue that he could recover in a traditional tort action. Nor
do his contracts with Sprint and MetroPCS make the
records his, even though such provisions could exist in
354 CARPENTER v. UNITED STATES
Thomas, J., dissenting
the marketplace. Cf., e. g., Google Terms of Service (Oct. 25,
2017), https://policies.google.com/terms (“Some of our Services
allow you to upload, submit, store, send or receive content.
You retain ownership of any intellectual property
rights that you hold in that content. In short, what belongs
to you stays yours”).
Instead of property, tort, or contract law, Carpenter relies
on the federal Telecommunications Act of 1996 to demonstrate
that the cell-site records are his papers. The Telecommunications
Act generally bars cell-phone companies from
disclosing customers' cell-site location information to the public.
See 47 U. S. C. § 222(c). This is suffcient to make the
records his, Carpenter argues, because the Fourth Amendment
merely requires him to identify a source of “positive
law” that “protects against access by the public without consent.”
Brief for Petitioner 32–33 (citing Baude & Stern, The
Positive Law Model of the Fourth Amendment, 129 Harv. L.
Rev. 1821, 1825–1826 (2016); emphasis deleted).
Carpenter is mistaken. To come within the text of the
Fourth Amendment, Carpenter must prove that the cell-site
records are his; positive law is potentially relevant only insofar
as it answers that question. The text of the Fourth
Amendment cannot plausibly be read to mean “any violation
of positive law” any more than it can plausibly be read to
mean “any violation of a reasonable expectation of privacy.”
Thus, the Telecommunications Act is insuffcient because
it does not give Carpenter a property right in the cell-site
records. Section 222, titled “Privacy of customer information,”
protects customers' privacy by preventing cell-phone
companies from disclosing sensitive information about them.
The statute creates a “duty to protect the confdentiality” of
information relating to customers, § 222(a), and creates
“[p]rivacy requirements” that limit the disclosure of that information,
§ 222(c)(1). Nothing in the text pre-empts state
property law or gives customers a property interest in the
companies' business records (assuming Congress even has
Cite as: 585 U. S. 296 (2018) 355
Thomas, J., dissenting
that authority).9 Although § 222 “protects the interests of
individuals against wrongful uses or disclosures of personal
data, the rationale for these legal protections has not historically
been grounded on a perception that people have property
rights in personal data as such.” Samuelson, Privacy
as Intellectual Property? 52 Stan. L. Rev. 1125, 1130–1131
(2000) (footnote omitted). Any property rights remain with
the companies.
E
The Katz test comes closer to the text of the Fourth
Amendment when it asks whether an expectation of privacy
is “reasonable,” but it ultimately distorts that term as well.
The Fourth Amendment forbids “unreasonable searches.”
In other words, reasonableness determines the legality of a
search, not “whether a search . . . within the meaning of the
Constitution has occurred.” Carter, 525 U. S., at 97 (opinion
of Scalia, J.) (internal quotation marks omitted).
Moreover, the Katz test invokes the concept of reasonableness
in a way that would be foreign to the ratifers of the
Fourth Amendment. Originally, the word “unreasonable” in
the Fourth Amendment likely meant “against reason”—as in
“against the reason of the common law.” See Donohue
1270–1275; Davies 686–693; California v. Acevedo, 500 U. S.
565, 583 (1991) (Scalia, J., concurring in judgment). At the
9 Carpenter relies on an order from the Federal Communications Commission
(FCC), which weakly states that “ `[t]o the extent [a customer's
location information] is property, . . . it is better understood as belonging
to the customer, not the carrier.' ” Brief for Petitioner 34, and n. 23 (quoting
13 FCC Rcd. 8061, 8093, ¶43 (1998); emphasis added). But this order
was vacated by the Court of Appeals for the Tenth Circuit. U. S. West,
Inc. v. FCC, 182 F. 3d 1224, 1240 (1999). Notably, the carrier in that case
argued that the FCC's regulation of customer information was a taking of
its property. See id., at 1230. Although the panel majority had no occasion
to address this argument, see id., at 1239, n. 14, the dissent concluded
that the carrier had failed to prove the information was “property” at all,
see id., at 1247–1248 (opinion of Briscoe, J.).
356 CARPENTER v. UNITED STATES
Thomas, J., dissenting
founding, searches and seizures were regulated by a robust
body of common-law rules. See generally W. Cuddihy, The
Fourth Amendment: Origins and Original Meaning 602–1791
(2009); e. g., Wilson v. Arkansas, 514 U. S. 927, 931–936 (1995)
(discussing the common-law knock-and-announce rule). The
search-and-seizure practices that the Founders feared
most—such as general warrants—were already illegal under
the common law, and jurists such as Lord Coke described
violations of the common law as “against reason.” See Donohue
1270–1271, and n. 513. Locke, Blackstone, Adams,
and other infuential fgures shortened the phrase “against
reason” to “unreasonable.” See id., at 1270–1275. Thus, by
prohibiting “unreasonable” searches and seizures in the
Fourth Amendment, the Founders ensured that the newly
created Congress could not use legislation to abolish the established
common-law rules of search and seizure. See
T. Cooley, Constitutional Limitations *303; 3 J. Story, Commentaries
on the Constitution of the United States § 1895,
p. 748 (1833).
Although the Court today maintains that its decision is
based on “Founding-era understandings,” ante, at 305, the
Founders would be puzzled by the Court's conclusion as well
as its reasoning. The Court holds that the Government unreasonably
searched Carpenter by subpoenaing the cellsite
records of Sprint and MetroPCS without a warrant.
But the Founders would not recognize the Court's “warrant
requirement.” Ante, at 318. The common law required
warrants for some types of searches and seizures, but not for
many others. The relevant rule depended on context. See
Acevedo, supra, at 583–584 (opinion of Scalia, J.); Amar,
Fourth Amendment First Principles, 107 Harv. L. Rev. 757,
763–770 (1994); Davies 738–739. In cases like this one, a
subpoena for third-party documents was not a “search” to
begin with, and the common law did not limit the government's
authority to subpoena third parties. See post, at
362–371 (Alito, J., dissenting). Suffce it to say, the Founders
Cite as: 585 U. S. 296 (2018) 357
Thomas, J., dissenting
would be confused by this Court's transformation of their
common-law protection of property into a “warrant requirement”
and a vague inquiry into “reasonable expectations of
privacy.”
III
That the Katz test departs so far from the text of the
Fourth Amendment is reason enough to reject it. But the
Katz test also has proved unworkable in practice. Jurists
and commentators tasked with deciphering our jurisprudence
have described the Katz regime as “an unpredictable
jumble,” “a mass of contradictions and obscurities,” “all over
the map,” “riddled with inconsistency and incoherence,” “a
series of inconsistent and bizarre results that [the Court]
has left entirely undefended,” “unstable,” “chameleon-like,”
“notoriously unhelpful,” “a conclusion rather than a starting
point for analysis,” “distressingly unmanageable,” “a dismal
failure,” “fawed to the core,” “unadorned fat,” and “inspired
by the kind of logic that produced Rube Goldberg's
bizarre contraptions.” 10 Even Justice Harlan, four years
10 Kugler & Strahilevitz, Actual Expectations of Privacy, Fourth Amendment
Doctrine, and the Mosaic Theory, 2015 S. Ct. Rev. 205, 261; Bradley,
Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468 (1985); Kerr,
Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 505
(2007); Solove, Fourth Amendment Pragmatism, 51 Boston College L. Rev.
1511 (2010); Wasserstrom & Seidman, The Fourth Amendment as Constitutional
Theory, 77 Geo. L. J. 19, 29 (1988); Colb, What Is a Search? Two
Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a
Remedy, 55 Stan. L. Rev. 119, 122 (2002); T. Clancy, The Fourth Amendment:
Its History and Interpretation § 3.3.4, p. 65 (2008); Minnesota v.
Carter, 525 U. S. 83, 97 (1998) (Scalia, J., concurring); State v. Campbell,
306 Ore. 157, 164, 759 P. 2d 1040, 1044 (1988); Wilkins, Defning the “Reasonable
Expectation of Privacy”: An Emerging Tripartite Analysis, 40
Vand. L. Rev. 1077, 1107 (1987); Yeager, Search, Seizure and the Positive
Law: Expectations of Privacy Outside the Fourth Amendment, 84 J. Crim.
L. & C. 249, 251 (1993); Thomas, Time Travel, Hovercrafts, and the Framers:
James Madison Sees the Future and Rewrites the Fourth Amendment, 80
Notre Dame L. Rev. 1451, 1500 (2005); Rakas v. Illinois, 439 U. S. 128, 165
(1978) (White, J., dissenting); Cloud, Rube Goldberg Meets the Consti358
CARPENTER v. UNITED STATES
Thomas, J., dissenting
after penning his concurrence in Katz, confessed that the
test encouraged “the substitution of words for analysis.”
United States v. White, 401 U. S. 745, 786 (1971) (dissenting
opinion).
After 50 years, it is still unclear what question the Katz
test is even asking. This Court has steadfastly declined to
elaborate the relevant considerations or identify any meaningful
constraints. See, e. g., ante, at 304 (“[N]o single rubric
defnitively resolves which expectations of privacy are
entitled to protection”); O'Connor v. Ortega, 480 U. S. 709,
715 (1987) (plurality opinion) (“We have no talisman that determines
in all cases those privacy expectations that society
is prepared to accept as reasonable”); Oliver, 466 U. S., at
177 (“No single factor determines whether an individual legitimately
may claim under the Fourth Amendment that a
place should be free of government intrusion”).
Justice Harlan's original formulation of the Katz test appears
to ask a descriptive question: Whether a given expectation
of privacy is “one that society is prepared to recognize
as `reasonable.' ” 389 U. S., at 361 (concurring opinion). As
written, the Katz test turns on society's actual, current views
about the reasonableness of various expectations of privacy.
But this descriptive understanding presents several problems.
For starters, it is easily circumvented. If, for example,
“the Government were suddenly to announce on
nationwide television that all homes henceforth would be
subject to warrantless entry,” individuals could not realistically
expect privacy in their homes. Smith, 442 U. S., at
740, n. 5; see also Chemerinsky, Rediscovering Brandeis's
Right to Privacy, 45 Brandeis L. J. 643, 650 (2007) (“[Under
Katz, t]he government seemingly can deny privacy just by
letting people know in advance not to expect any”). A
purely descriptive understanding of the Katz test also risks
“circular[ity].” Kyllo, 533 U. S., at 34. While this Court is
tution: The Supreme Court, Technology and the Fourth Amendment, 72
Miss. L. J. 5, 7 (2002).
Cite as: 585 U. S. 296 (2018) 359
Thomas, J., dissenting
supposed to base its decisions on society's expectations of
privacy, society's expectations of privacy are, in turn, shaped
by this Court's decisions. See Posner, The Uncertain Protection
of Privacy by the Supreme Court, 1979 S. Ct. Rev.
173, 188 (“[W]hether [a person] will or will not have [a reasonable]
expectation [of privacy] will depend on what the
legal rule is”).
To address this circularity problem, the Court has insisted
that expectations of privacy must come from outside its
Fourth Amendment precedents, “either by reference to concepts
of real or personal property law or to understandings
that are recognized and permitted by society.” Rakas v. Illinois,
439 U. S. 128, 144, n. 12 (1978). But the Court's supposed
reliance on “real or personal property law” rings hollow.
The whole point of Katz was to “ `discredi[t]' ” the
relationship between the Fourth Amendment and property
law, 389 U. S., at 353, and this Court has repeatedly downplayed
the importance of property law under the Katz test,
see, e. g., United States v. Salvucci, 448 U. S. 83, 91 (1980)
(“[P]roperty rights are neither the beginning nor the end of
this Court's inquiry [under Katz]”); Rawlings v. Kentucky,
448 U. S. 98, 105 (1980) (“[This Court has] emphatically rejected
the notion that `arcane' concepts of property law ought
to control the ability to claim the protections of the Fourth
Amendment”). Today, for example, the Court makes no
mention of property law, except to reject its relevance. See
ante, at 304, and n. 1.
As for “understandings that are recognized and permitted
by society,” this Court has never answered even the most
basic questions about what this means. See Kerr, Four
Models of Fourth Amendment Protection, 60 Stan. L. Rev.
503, 504–505 (2007). For example, our precedents do not explain
who is included in “society,” how we know what they
“recogniz[e] and permi[t],” and how much of society must
agree before something constitutes an “understanding.”
Here, for example, society might prefer a balanced regime
that prohibits the Government from obtaining cell-site loca360
CARPENTER v. UNITED STATES
Thomas, J., dissenting
tion information unless it can persuade a neutral magistrate
that the information bears on an ongoing criminal investigation.
That is precisely the regime Congress created under
the Stored Communications Act and Telecommunications
Act. See 47 U. S. C. § 222(c)(1); 18 U. S. C. §§ 2703(c)(1)(B),
(d). With no sense of irony, the Court invalidates this regime
today—the one that society actually created “in the
form of its elected representatives in Congress.” 819 F. 3d
880, 890 (2016).
Truth be told, this Court does not treat the Katz test as a
descriptive inquiry. Although the Katz test is phrased in
descriptive terms about society's views, this Court treats it
like a normative question—whether a particular practice
should be considered a search under the Fourth Amendment.
Justice Harlan thought this was the best way to understand
his test. See White, 401 U. S., at 786 (dissenting opinion)
(explaining that courts must assess the “desirability” of privacy
expectations and ask whether courts “should” recognize
them by “balanc[ing]” the “impact on the individual's sense
of security . . . against the utility of the conduct as a technique
of law enforcement”). And a normative understanding
is the only way to make sense of this Court's precedents,
which bear the hallmarks of subjective policymaking instead
of neutral legal decisionmaking. “[T]he only thing the past
three decades have established about the Katz test” is that
society's expectations of privacy “bear an uncanny resemblance
to those expectations of privacy that this Court considers
reasonable.” Carter, 525 U. S., at 97 (opinion of
Scalia, J.). Yet, “[t]hough we know ourselves to be eminently
reasonable, self-awareness of eminent reasonableness
is not really a substitute for democratic election.” Sosa v.
Alvarez-Machain, 542 U. S. 692, 750 (2004) (Scalia, J., concurring
in part and concurring in judgment).
* * *
In several recent decisions, this Court has declined to apply
the Katz test because it threatened to narrow the origCite
as: 585 U. S. 296 (2018) 361
Alito, J., dissenting
inal scope of the Fourth Amendment. See Grady v. North
Carolina, 575 U. S. 306, 308–309 (2015) (per curiam); Florida
v. Jardines, 569 U. S. 1, 5 (2013); Jones, 565 U. S., at 406–
407. But as today's decision demonstrates, Katz can also be
invoked to expand the Fourth Amendment beyond its original
scope. This Court should not tolerate errors in either
direction. “The People, through ratifcation, have already
weighed the policy tradeoffs that constitutional rights entail.”
Luis v. United States, 578 U. S. 5, 33 (2016) (Thomas,
J., concurring in judgment). Whether the rights they ratifed
are too broad or too narrow by modern lights, this Court
has no authority to unilaterally alter the document they
approved.
Because the Katz test is a failed experiment, this Court is
dutybound to reconsider it. Until it does, I agree with my
dissenting colleagues' reading of our precedents. Accordingly,
I respectfully dissent.
Justice Alito, with whom Justice Thomas joins,
dissenting.
I share the Court's concern about the effect of new technology
on personal privacy, but I fear that today's decision
will do far more harm than good. The Court's reasoning
fractures two fundamental pillars of Fourth Amendment law,
and in doing so, it guarantees a blizzard of litigation while
threatening many legitimate and valuable investigative practices
upon which law enforcement has rightfully come to rely.
First, the Court ignores the basic distinction between an
actual search (dispatching law enforcement offcers to enter
private premises and root through private papers and effects)
and an order merely requiring a party to look through
its own records and produce specifed documents. The former,
which intrudes on personal privacy far more deeply,
requires probable cause; the latter does not. Treating an
order to produce like an actual search, as today's decision
does, is revolutionary. It violates both the original understanding
of the Fourth Amendment and more than a century
362 CARPENTER v. UNITED STATES
Alito, J., dissenting
of Supreme Court precedent. Unless it is somehow restricted
to the particular situation in the present case, the
Court's move will cause upheaval. Must every grand jury
subpoena duces tecum be supported by probable cause? If
so, investigations of terrorism, political corruption, whitecollar
crime, and many other offenses will be stymied. And
what about subpoenas and other document-production
orders issued by administrative agencies? See, e. g., 15
U. S. C. § 57b–1(c) (Federal Trade Commission); §§ 77s(c),
78u(a)–(b) (Securities and Exchange Commission); 29 U. S. C.
§ 657(b) (Occupational Safety and Health Administration); 29
CFR § 1601.16(a)(2) (2017) (Equal Employment Opportunity
Commission).
Second, the Court allows a defendant to object to the
search of a third party's property. This also is revolutionary.
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and effects”
(emphasis added), not the persons, houses, papers, and
effects of others. Until today, we have been careful to heed
this fundamental feature of the Amendment's text. This
was true when the Fourth Amendment was tied to property
law, and it remained true after Katz v. United States, 389
U. S. 347 (1967), broadened the Amendment's reach.
By departing dramatically from these fundamental principles,
the Court destabilizes long-established Fourth Amendment
doctrine. We will be making repairs—or picking up
the pieces—for a long time to come.
I
Today the majority holds that a court order requiring the
production of cell-site records may be issued only after the
Government demonstrates probable cause. See ante, at 316–
317. That is a serious and consequential mistake. The
Court's holding is based on the premise that the order issued
in this case was an actual “search” within the meaning of the
Fourth Amendment, but that premise is inconsistent with the
Cite as: 585 U. S. 296 (2018) 363
Alito, J., dissenting
original meaning of the Fourth Amendment and with more
than a century of precedent.
A
The order in this case was the functional equivalent of a
subpoena for documents, and there is no evidence that these
writs were regarded as “searches” at the time of the founding.
Subpoenas duces tecum and other forms of compulsory
document production were well known to the founding generation.
Blackstone dated the frst writ of subpoena to the
reign of King Richard II in the late 14th century, and by the
end of the 15th century, the use of such writs had “become
the daily practice of the [Chancery] court.” 3 W. Blackstone,
Commentaries on the Laws of England 53 (G. Tucker ed.
1803) (Blackstone). Over the next 200 years, subpoenas
would grow in prominence and power in tandem with the
Court of Chancery, and by the end of Charles II's reign in
1685, two important innovations had occurred.
First, the Court of Chancery developed a new species of
subpoena. Until this point, subpoenas had been used largely
to compel attendance and oral testimony from witnesses;
these subpoenas correspond to today's subpoenas ad testifcandum.
But the Court of Chancery also improvised a new
version of the writ that tacked onto a regular subpoena an
order compelling the witness to bring certain items with
him. By issuing these so-called subpoenas duces tecum, the
Court of Chancery could compel the production of papers,
books, and other forms of physical evidence, whether from
the parties to the case or from third parties. Such subpoenas
were suffciently commonplace by 1623 that a leading
treatise on the practice of law could refer in passing to the
fee for a “Sub poena of Ducas tecum” (seven shillings and
two pence) without needing to elaborate further. T. Powell,
The Attourneys Academy 79 (1623). Subpoenas duces
tecum would swell in use over the next century as the
rules for their application became ever more developed and
defnite. See, e. g., 1 G. Jacob, The Compleat Chancery364
CARPENTER v. UNITED STATES
Alito, J., dissenting
Practiser 290 (1730) (“The Subpoena duces tecum is awarded
when the Defendant has confessed by his Answer that he
hath such Writings in his Hands as are prayed by the Bill to
be discovered or brought into Court”).
Second, although this new species of subpoena had its origins
in the Court of Chancery, it soon made an appearance
in the work of the common-law courts as well. One court
later reported that “[t]he Courts of Common law . . . employed
the same or similar means . . . from the time of
Charles the Second at least.” Amey v. Long, 9 East. 473,
484, 103 Eng. Rep. 653, 658 (K. B. 1808).
By the time Blackstone published his Commentaries on
the Laws of England in the 1760's, the use of subpoenas
duces tecum had bled over substantially from the courts of
equity to the common-law courts. Admittedly, the transition
was still incomplete: In the context of jury trials, for
example, Blackstone complained about “the want of a compulsive
power for the production of books and papers belonging
to the parties.” Blackstone 381; see also, e. g., Entick v.
Carrington, 19 How. St. Tr. 1029, 1073 (C. P. 1765) (“I wish
some cases had been shewn, where the law forceth evidence
out of the owner's custody by process. [But] where the adversary
has by force or fraud got possession of your own
proper evidence, there is no way to get it back but by action”).
But Blackstone found some comfort in the fact that
at least those documents “[i]n the hands of third persons . . .
can generally be obtained by rule of court, or by adding a
clause of requisition to the writ of subpoena, which is then
called a subpoena duces tecum.” Blackstone 381; see also,
e. g., Leeds v. Cook, 4 Esp. 256, 257, 170 Eng. Rep. 711 (N. P.
1803) (third-party subpoena duces tecum); Rex v. Babb, 3
T. R. 579, 580, 100 Eng. Rep. 743, 744 (K. B. 1790) (thirdparty
document production). One of the primary questions
outstanding, then, was whether common-law courts would
remedy the “defect[s]” identifed by the Commentaries, and
allow parties to use subpoenas duces tecum not only with
Cite as: 585 U. S. 296 (2018) 365
Alito, J., dissenting
respect to third parties but also with respect to each other.
Blackstone 381.
That question soon found an affrmative answer on both
sides of the Atlantic. In the United States, the First Congress
established the federal court system in the Judiciary
Act of 1789. As part of that Act, Congress authorized “all
the said courts of the United States . . . in the trial of actions
at law, on motion and due notice thereof being given, to require
the parties to produce books or writings in their possession
or power, which contain evidence pertinent to the
issue, in cases and under circumstances where they might
be compelled to produce the same by the ordinary rules
of proceeding in chancery.” § 15, 1 Stat. 82. From that
point forward, federal courts in the United States could compel
the production of documents regardless of whether those
documents were held by parties to the case or by third
parties.
In Great Britain, too, it was soon defnitively established
that common-law courts, like their counterparts in equity,
could subpoena documents held either by parties to the case
or by third parties. After proceeding in fts and starts, the
King's Bench eventually held in Amey v. Long that the “writ
of subpoena duces tecum [is] a writ of compulsory obligation
and effect in the law.” 9 East., at 486, 103 Eng. Rep., at 658.
Writing for a unanimous court, Lord Chief Justice Ellenborough
explained that “[t]he right to resort to means competent
to compel the production of written, as well as oral,
testimony seems essential to the very existence and constitution
of a Court of Common Law.” Id., at 484, 103 Eng. Rep.,
at 658. Without the power to issue subpoenas duces tecum,
the Lord Chief Justice observed, common-law courts “could
not possibly proceed with due effect.” Ibid.
The prevalence of subpoenas duces tecum at the time of
the founding was not limited to the civil context. In criminal
cases, courts and prosecutors were also using the writ to
compel the production of necessary documents. In Rex v.
366 CARPENTER v. UNITED STATES
Alito, J., dissenting
Dixon, 3 Burr. 1687, 97 Eng. Rep. 1047 (K. B. 1765), for example,
the King's Bench considered the propriety of a subpoena
duces tecum served on an attorney named Samuel
Dixon. Dixon had been called “to give evidence before the
grand jury of the county of Northampton” and specifcally
“to produce three vouchers . . . in order to found a prosecution
by way of indictment against [his client] Peach . . .
for forgery.” Ibid., 97 Eng. Rep., at 1047–1048. Although
the court ultimately held that Dixon had not needed to
produce the vouchers on account of attorney-client privilege,
none of the justices expressed the slightest doubt about the
general propriety of subpoenas duces tecum in the criminal
context. See id., at 1688, 97 Eng. Rep., at 1048. As Lord
Chief Justice Ellenborough later explained, “[i]n that case no
objection was taken to the writ, but to the special circumstances
under which the party possessed the papers; so that
the Court may be considered as recognizing the general obligation
to obey writs of that description in other cases.”
Amey, supra, at 485, 103 Eng. Rep., at 658; see also 4 J.
Chitty, Criminal Law 185 (1816) (template for criminal subpoena
duces tecum).
As Dixon shows, subpoenas duces tecum were routine in
part because of their close association with grand juries.
Early American colonists imported the grand jury, like so
many other common-law traditions, and they quickly fourished.
See United States v. Calandra, 414 U. S. 338, 342–
343 (1974). Grand juries were empaneled by the federal
courts almost as soon as the latter were established, and both
they and their state counterparts actively exercised their
wide-ranging common-law authority. See R. Younger, The
People's Panel 47–55 (1963). Indeed, “the Founders thought
the grand jury so essential . . . that they provided in the
Fifth Amendment that federal prosecution for serious crimes
can only be instituted by `a presentment or indictment of a
Grand Jury.' ” Calandra, 414 U. S., at 343.
Cite as: 585 U. S. 296 (2018) 367
Alito, J., dissenting
Given the popularity and prevalence of grand juries at the
time, the Founders must have been intimately familiar with
the tools they used—including compulsory process—to accomplish
their work. As a matter of tradition, grand juries
were “accorded wide latitude to inquire into violations of
criminal law,” including the power to “compel the production
of evidence or the testimony of witnesses as [they] conside[r]
appropriate.” Ibid. Long before national independence
was achieved, grand juries were already using their broad
inquisitorial powers not only to present and indict criminal
suspects but also to inspect public buildings, to levy taxes,
to supervise the administration of the laws, to advance municipal
reforms such as street repair and bridge maintenance,
and in some cases even to propose legislation. Younger,
supra, at 5–26. Of course, such work depended entirely on
grand juries' ability to access any relevant documents.
Grand juries continued to exercise these broad inquisitorial
powers up through the time of the founding. See Blair
v. United States, 250 U. S. 273, 280 (1919) (“At the foundation
of our Federal Government the inquisitorial function of the
grand jury and the compulsion of witnesses were recognized
as incidents of the judicial power”). In a series of lectures
delivered in the early 1790's, Justice James Wilson crowed
that grand juries were “the peculiar boast of the common
law” thanks in part to their wide-ranging authority: “All the
operations of government, and of its ministers and offcers,
are within the compass of their view and research.” 2 J.
Wilson, The Works of James Wilson 534, 537 (R. McCloskey
ed. 1967). That refected the broader insight that “[t]he
grand jury's investigative power must be broad if its public
responsibility is adequately to be discharged.” Calandra,
supra, at 344.
Compulsory process was also familiar to the founding generation
in part because it refected “the ancient proposition
of law” that “ ` “the public . . . has a right to every man's
368 CARPENTER v. UNITED STATES
Alito, J., dissenting
evidence.” ' ” United States v. Nixon, 418 U. S. 683, 709
(1974); see also ante, at 329–330 (Kennedy, J., dissenting).
As early as 1612, “Lord Bacon is reported to have declared
that `all subjects, without distinction of degrees, owe to the
King tribute and service, not only of their deed and hand,
but of their knowledge and discovery.' ” Blair, 250 U. S., at
279–280. That duty could be “onerous at times,” yet the
Founders considered it “necessary to the administration of
justice according to the forms and modes established in our
system of government.” Id., at 281; see also Calandra,
supra, at 345.
B
Talk of kings and common-law writs may seem out of place
in a case about cell-site records and the protections afforded
by the Fourth Amendment in the modern age. But this history
matters, not least because it tells us what was on the
minds of those who ratifed the Fourth Amendment and how
they understood its scope. That history makes it abundantly
clear that the Fourth Amendment, as originally understood,
did not apply to the compulsory production of documents
at all.
The Fourth Amendment does not regulate all methods by
which the Government obtains documents. Rather, it prohibits
only those “searches and seizures” of “persons, houses,
papers, and effects” that are “unreasonable.” Consistent
with that language, “at least until the latter half of the 20th
century” “our Fourth Amendment jurisprudence was tied to
common-law trespass.” United States v. Jones, 565 U. S.
400, 405 (2012). So by its terms, the Fourth Amendment
does not apply to the compulsory production of documents,
a practice that involves neither any physical intrusion into
private space nor any taking of property by agents of the
state. Even Justice Brandeis—a stalwart proponent of construing
the Fourth Amendment liberally—acknowledged
that “under any ordinary construction of language,” “there
is no `search' or `seizure' when a defendant is required to
Cite as: 585 U. S. 296 (2018) 369
Alito, J., dissenting
produce a document in the orderly process of a court's procedure.”
Olmstead v. United States, 277 U. S. 438, 476 (1928)
(dissenting opinion).1
Nor is there any reason to believe that the Founders intended
the Fourth Amendment to regulate courts' use of
compulsory process. American colonists rebelled against
the Crown's physical invasions of their persons and their
property, not against its acquisition of information by any
and all means. As Justice Black once put it, “[t]he Fourth
Amendment was aimed directly at the abhorred practice of
breaking in, ransacking and searching homes and other
buildings and seizing people's personal belongings without
warrants issued by magistrates.” Katz, 389 U. S., at 367
(dissenting opinion). More recently, we have acknowledged
that “the Fourth Amendment was the founding generation's
response to the reviled `general warrants' and `writs of assistance'
of the colonial era, which allowed British offcers to
rummage through homes in an unrestrained search for evidence
of criminal activity.” Riley v. California, 573 U. S.
373, 403 (2014).
General warrants and writs of assistance were noxious not
because they allowed the government to acquire evidence in
1 Any other interpretation of the Fourth Amendment's text would run
into insuperable problems because it would apply not only to subpoenas
duces tecum but to all other forms of compulsory process as well. If the
Fourth Amendment applies to the compelled production of documents,
then it must also apply to the compelled production of testimony—an outcome
that we have repeatedly rejected and which, if accepted, would send
much of the feld of criminal procedure into a tailspin. See, e. g., United
States v. Dionisio, 410 U. S. 1, 9 (1973) (“It is clear that a subpoena to
appear before a grand jury is not a `seizure' in the Fourth Amendment
sense, even though that summons may be inconvenient or burdensome”);
United States v. Calandra, 414 U. S. 338, 354 (1974) (“Grand jury questions
. . . involve no independent governmental invasion of one's person, house,
papers, or effects”). As a matter of original understanding, a subpoena
duces tecum no more effects a “search” or “seizure” of papers within the
meaning of the Fourth Amendment than a subpoena ad testifcandum effects
a “search” or “seizure” of a person.
370 CARPENTER v. UNITED STATES
Alito, J., dissenting
criminal investigations, but because of the means by which
they permitted the government to acquire that evidence.
Then, as today, searches could be quite invasive. Searches
generally begin with offcers “mak[ing] nonconsensual entries
into areas not open to the public.” Donovan v. Lone
Steer, Inc., 464 U. S. 408, 414 (1984). Once there, offcers are
necessarily in a position to observe private spaces generally
shielded from the public and discernible only with the owner's
consent. Private area after private area becomes exposed
to the offcers' eyes as they rummage through the owner's
property in their hunt for the object or objects of the
search. If they are searching for documents, offcers may
additionally have to rife through many other papers—
potentially flled with the most intimate details of a person's
thoughts and life—before they fnd the specifc information
they are seeking. See Andresen v. Maryland, 427 U. S. 463,
482, n. 11 (1976). If anything suffciently incriminating
comes into view, offcers seize it. Horton v. California, 496
U. S. 128, 136–137 (1990). Physical destruction always lurks
as an underlying possibility; “offcers executing search warrants
on occasion must damage property in order to perform
their duty.” Dalia v. United States, 441 U. S. 238, 258
(1979); see, e. g., United States v. Ramirez, 523 U. S. 65, 71–
72 (1998) (breaking garage window); United States v. Ross,
456 U. S. 798, 817–818 (1982) (ripping open car upholstery);
Brown v. Battle Creek Police Dept., 844 F. 3d 556, 572 (CA6
2016) (shooting and killing two pet dogs); Lawmaster v.
Ward, 125 F. 3d 1341, 1350, n. 3 (CA10 1997) (breaking locks).
Compliance with a subpoena duces tecum requires none of
that. A subpoena duces tecum permits a subpoenaed individual
to conduct the search for the relevant documents himself,
without law enforcement offcers entering his home or
rooting through his papers and effects. As a result, subpoenas
avoid the many incidental invasions of privacy that necessarily
accompany any actual search. And it was those
invasions of privacy—which, although incidental, could often
Cite as: 585 U. S. 296 (2018) 371
Alito, J., dissenting
be extremely intrusive and damaging—that led to the adoption
of the Fourth Amendment.
Neither this Court nor any of the parties have offered the
slightest bit of historical evidence to support the idea that
the Fourth Amendment originally applied to subpoenas
duces tecum and other forms of compulsory process. That
is telling, for as I have explained, these forms of compulsory
process were a feature of criminal (and civil) procedure well
known to the Founders. The Founders would thus have understood
that holding the compulsory production of documents
to the same standard as actual searches and seizures
would cripple the work of courts in civil and criminal cases
alike. It would be remarkable to think that, despite that
knowledge, the Founders would have gone ahead and sought
to impose such a requirement. It would be even more incredible
to believe that the Founders would have imposed
that requirement through the inapt vehicle of an amendment
directed at different concerns. But it would blink reality
entirely to argue that this entire process happened without
anyone saying the least thing about it—not during the drafting
of the Bill of Rights, not during any of the subsequent
ratifcation debates, and not for most of the century that followed.
If the Founders thought the Fourth Amendment applied
to the compulsory production of documents, one would
imagine that there would be some founding-era evidence of
the Fourth Amendment being applied to the compulsory production
of documents. Cf. Free Enterprise Fund v. Public
Company Accounting Oversight Bd., 561 U. S. 477, 505
(2010); Printz v. United States, 521 U. S. 898, 905 (1997).
Yet none has been brought to our attention.
C
Of course, our jurisprudence has not stood still since 1791.
We now evaluate subpoenas duces tecum and other forms of
compulsory document production under the Fourth Amendment,
although we employ a reasonableness standard that is
372 CARPENTER v. UNITED STATES
Alito, J., dissenting
less demanding than the requirements for a warrant. But
the road to that doctrinal destination was anything but
smooth, and our initial missteps—and the subsequent struggle
to extricate ourselves from their consequences—should
provide an object lesson for today's majority about the dangers
of holding compulsory process to the same standard as
actual searches and seizures.
For almost a century after the Fourth Amendment was
enacted, this Court said and did nothing to indicate that it
might regulate the compulsory production of documents.
But that changed temporarily when the Court decided Boyd
v. United States, 116 U. S. 616 (1886), the frst—and, until
today, the only—case in which this Court has ever held the
compulsory production of documents to the same standard
as actual searches and seizures.
The Boyd Court held that a court order compelling a company
to produce potentially incriminating business records
violated both the Fourth and the Fifth Amendments. The
Court acknowledged that “certain aggravating incidents of
actual search and seizure, such as forcible entry into a man's
house and searching amongst his papers, are wanting” when
the Government relies on compulsory process. Id., at 622.
But it nevertheless asserted that the Fourth Amendment
ought to “be liberally construed,” id., at 635, and further
reasoned that compulsory process “effects the sole object and
purpose of search and seizure” by “forcing from a party evidence
against himself,” id., at 622. “In this regard,” the
Court concluded, “the Fourth and Fifth Amendments run
almost into each other.” Id., at 630. Having equated compulsory
process with actual searches and seizures and having
melded the Fourth Amendment with the Fifth, the Court
then found the order at issue unconstitutional because it
compelled the production of property to which the Government
did not have superior title. See id., at 622–630.
In a concurrence joined by Chief Justice Waite, Justice
Miller agreed that the order violated the Fifth Amendment,
Cite as: 585 U. S. 296 (2018) 373
Alito, J., dissenting
id., at 639, but he strongly protested the majority's invocation
of the Fourth Amendment. He explained: “[T]here is
no reason why this court should assume that the action of
the court below, in requiring a party to produce certain papers
. . . , authorizes an unreasonable search or seizure of the
house, papers, or effects of that party. There is in fact no
search and no seizure.” Ibid. “If the mere service of a notice
to produce a paper . . . is a search,” Justice Miller concluded,
“then a change has taken place in the meaning of
words, which has not come within my reading, and which I
think was unknown at the time the Constitution was made.”
Id., at 641.
Although Boyd was replete with stirring rhetoric, its reasoning
was confused from start to fnish in a way that ultimately
made the decision unworkable. See 3 W. LaFave,
J. Israel, N. King, & O. Kerr, Criminal Procedure § 8.7(a) (4th
ed. 2015). Over the next 50 years, the Court would gradually
roll back Boyd's erroneous confation of compulsory
process with actual searches and seizures.
That effort took its frst signifcant stride in Hale v.
Henkel, 201 U. S. 43 (1906), where the Court found it “quite
clear” and “conclusive” that “the search and seizure clause
of the Fourth Amendment was not intended to interfere with
the power of courts to compel, through a subpoena duces
tecum, the production, upon a trial in court, of documentary
evidence.” Id., at 73. Without that writ, the Court recognized,
“it would be `utterly impossible to carry on the administration
of justice.' ” Ibid.
Hale, however, did not entirely liberate subpoenas duces
tecum from Fourth Amendment constraints. While refusing
to treat such subpoenas as the equivalent of actual
searches, Hale concluded that they must not be unreasonable.
And it held that the subpoena duces tecum at issue
was “far too sweeping in its terms to be regarded as reasonable.”
Id., at 76. The Hale Court thus left two critical
questions unanswered: Under the Fourth Amendment, what
374 CARPENTER v. UNITED STATES
Alito, J., dissenting
makes the compulsory production of documents “reasonable,”
and how does that standard differ from the one that
governs actual searches and seizures?
The Court answered both of those questions defnitively in
Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186
(1946), where we held that the Fourth Amendment regulates
the compelled production of documents, but less stringently
than it does full-blown searches and seizures. Oklahoma
Press began by admitting that the Court's opinions on the
subject had “perhaps too often . . . been generative of heat
rather than light,” “mov[ing] with variant direction” and
sometimes having “highly contrasting” “emphasis and tone.”
Id., at 202. “The primary source of misconception concerning
the Fourth Amendment's function” in this context, the
Court explained, “lies perhaps in the identifcation of cases
involving so-called `fgurative' or `constructive' search with
cases of actual search and seizure.” Ibid. But the Court
held that “the basic distinction” between the compulsory
production of documents on the one hand, and actual
searches and seizures on the other, meant that two different
standards had to be applied. Id., at 204.
Having reversed Boyd's confation of the compelled production
of documents with actual searches and seizures, the
Court then set forth the relevant Fourth Amendment standard
for the former. When it comes to “the production of
corporate or other business records,” the Court held that the
Fourth Amendment “at the most guards against abuse only
by way of too much indefniteness or breadth in the things
required to be `particularly described,' if also the inquiry is
one the demanding agency is authorized by law to make and
the materials specifed are relevant.” Oklahoma Press, 327
U. S., at 208. Notably, the Court held that a showing of
probable cause was not necessary so long as “the investigation
is authorized by Congress, is for a purpose Congress can
order, and the documents sought are relevant to the inquiry.”
Id., at 209.
Cite as: 585 U. S. 296 (2018) 375
Alito, J., dissenting
Since Oklahoma Press, we have consistently hewed to
that standard. See, e. g., Lone Steer, Inc., 464 U. S., at 414–
415; United States v. Miller, 425 U. S. 435, 445–446 (1976);
California Bankers Assn. v. Shultz, 416 U. S. 21, 67 (1974);
United States v. Dionisio, 410 U. S. 1, 11–12 (1973); See v.
Seattle, 387 U. S. 541, 544 (1967); United States v. Powell,
379 U. S. 48, 57–58 (1964); McPhaul v. United States, 364
U. S. 372, 382–383 (1960); United States v. Morton Salt Co.,
338 U. S. 632, 652–653 (1950); cf. McLane Co. v. EEOC, 581
U. S. 72, 84–85 (2017). By applying Oklahoma Press and
thereby respecting “the traditional distinction between a
search warrant and a subpoena,” Miller, supra, at 446, this
Court has reinforced “the basic compromise” between “the
public interest” in every man's evidence and the private
interest “of men to be free from offcious intermeddling.”
Oklahoma Press, supra, at 213.
D
Today, however, the majority inexplicably ignores the settled
rule of Oklahoma Press in favor of a resurrected version
of Boyd. That is mystifying. This should have been an
easy case regardless of whether the Court looked to the original
understanding of the Fourth Amendment or to our
modern doctrine.
As a matter of original understanding, the Fourth Amendment
does not regulate the compelled production of documents
at all. Here the Government received the relevant
cell-site records pursuant to a court order compelling Carpenter's
cell service provider to turn them over. That
process is thus immune from challenge under the original
understanding of the Fourth Amendment.
As a matter of modern doctrine, this case is equally straightforward.
As Justice Kennedy explains, no search or seizure
of Carpenter or his property occurred in this case. Ante,
at 326–341; see also Part II, infra. But even if the majority
were right that the Government “searched” Carpenter, it
would at most be a “fgurative or constructive search” gov376
CARPENTER v. UNITED STATES
Alito, J., dissenting
erned by the Oklahoma Press standard, not an “actual
search” controlled by the Fourth Amendment's warrant
requirement.
And there is no doubt that the Government met the Oklahoma
Press standard here. Under Oklahoma Press, a court
order must “ `be suffciently limited in scope, relevant in purpose,
and specifc in directive so that compliance will not be
unreasonably burdensome.' ” Lone Steer, Inc., supra, at
415. Here, the type of order obtained by the Government
almost necessarily satisfes that standard. The Stored Communications
Act allows a court to issue the relevant type
of order “only if the governmental entity offers specifc and
articulable facts showing that there are reasonable grounds
to believe that . . . the records . . . sough[t] are relevant and
material to an ongoing criminal investigation.” 18 U. S. C.
§ 2703(d). And the court “may quash or modify such order”
if the provider objects that the “records requested are unusually
voluminous in nature or compliance with such order
otherwise would cause an undue burden on such provider.”
Ibid. No such objection was made in this case, and Carpenter
does not suggest that the orders contravened the Oklahoma
Press standard in any other way.
That is what makes the majority's opinion so puzzling. It
decides that a “search” of Carpenter occurred within the
meaning of the Fourth Amendment, but then it leaps straight
to imposing requirements that—until this point—have governed
only actual searches and seizures. See ante, at 316–
317. Lost in its race to the fnish is any real recognition
of the century's worth of precedent it jeopardizes. For the
majority, this case is apparently no different from one in
which Government agents raided Carpenter's home and removed
records associated with his cell phone.
Against centuries of precedent and practice, all that the
Court can muster is the observation that “this Court has
never held that the Government may subpoena third parties
for records in which the suspect has a reasonable expectation
of privacy.” Ante, at 317. Frankly, I cannot imagine a conCite
as: 585 U. S. 296 (2018) 377
Alito, J., dissenting
cession more damning to the Court's argument than that.
As the Court well knows, the reason that we have never
seen such a case is because—until today—defendants categorically
had no “reasonable expectation of privacy” and no
property interest in records belonging to third parties. See
Part II, infra. By implying otherwise, the Court tries the
nice trick of seeking shelter under the cover of precedents
that it simultaneously perforates.
Not only that, but even if the Fourth Amendment permitted
someone to object to the subpoena of a third party's records,
the Court cannot explain why that individual should be
entitled to greater Fourth Amendment protection than the
party actually being subpoenaed. When parties are subpoenaed
to turn over their records, after all, they will at most
receive the protection afforded by Oklahoma Press even
though they will own and have a reasonable expectation of
privacy in the records at issue. Under the Court's decision,
however, the Fourth Amendment will extend greater protections
to someone else who is not being subpoenaed and does
not own the records. That outcome makes no sense, and the
Court does not even attempt to defend it.
We have set forth the relevant Fourth Amendment standard
for subpoenaing business records many times over. Out
of those dozens of cases, the majority cannot fnd even one
that so much as suggests an exception to the Oklahoma
Press standard for suffciently personal information. Instead,
we have always “described the constitutional requirements”
for compulsory process as being “ `settled' ” and as
applying categorically to all “ `subpoenas [of] corporate books
or records.' ” Lone Steer, Inc., 464 U. S., at 415 (internal
quotation marks omitted). That standard, we have held, is
“the most” protection the Fourth Amendment gives “to the
production of corporate records and papers.” Oklahoma
Press, 327 U. S., at 208 (emphasis added).2
2 All that the Court can say in response is that we have “been careful
not to uncritically extend existing precedents” when confronting new technologies.
Ante, at 318. But applying a categorical rule categorically does
378 CARPENTER v. UNITED STATES
Alito, J., dissenting
Although the majority announces its holding in the context
of the Stored Communications Act, nothing stops its logic
from sweeping much further. The Court has offered no
meaningful limiting principle, and none is apparent. Cf. Tr.
of Oral Arg. 31 (Carpenter's counsel admitting that “a grand
jury subpoena . . . would be held to the same standard as any
other subpoena or subpoena-like request for [cell-site]
records”).
Holding that subpoenas must meet the same standard as
conventional searches will seriously damage, if not destroy,
their utility. Even more so than at the founding, today the
government regularly uses subpoenas duces tecum and other
forms of compulsory process to carry out its essential functions.
See, e. g., Dionisio, 410 U. S., at 11–12 (grand jury
subpoenas); McPhaul, 364 U. S., at 382–383 (legislative subpoenas);
Oklahoma Press, supra, at 208–209 (administrative
subpoenas). Grand juries, for example, have long “compel[
led] the production of evidence” in order to determine
“whether there is probable cause to believe a crime has been
committed.” Calandra, 414 U. S., at 343 (emphasis added).
Almost by defnition, then, grand juries will be unable at frst
to demonstrate “the probable cause required for a warrant.”
Ante, at 317 (majority opinion); see also Oklahoma Press,
supra, at 213. If they are required to do so, the effects are
as predictable as they are alarming: Many investigations will
sputter out at the start, and a host of criminals will be able
to evade law enforcement's reach.
“To ensure that justice is done, it is imperative to the function
of courts that compulsory process be available for the
production of evidence.” Nixon, 418 U. S., at 709. For
over a hundred years, we have understood that holding subpoenas
to the same standard as actual searches and seizures
“would stop much if not all of investigation in the public interest
at the threshold of inquiry.” Oklahoma Press, supra,
not “extend” precedent, so the Court's statement ends up sounding a lot
like a tacit admission that it is overruling our precedents.
Cite as: 585 U. S. 296 (2018) 379
Alito, J., dissenting
at 213. Today a skeptical majority decides to put that understanding
to the test.
II
Compounding its initial error, the Court also holds that a
defendant has the right under the Fourth Amendment to object
to the search of a third party's property. This holding
fouts the clear text of the Fourth Amendment, and it cannot
be defended under either a property-based interpretation of
that Amendment or our decisions applying the reasonableexpectations-
of-privacy test adopted in Katz, 389 U. S. 347.
By allowing Carpenter to object to the search of a third party's
property, the Court threatens to revolutionize a second
and independent line of Fourth Amendment doctrine.
A
It bears repeating that the Fourth Amendment guarantees
“[t]he right of the people to be secure in their persons,
houses, papers, and effects. ” (Emphasis added.) The
Fourth Amendment does not confer rights with respect to
the persons, houses, papers, and effects of others. Its language
makes clear that “Fourth Amendment rights are personal,”
Rakas v. Illinois, 439 U. S. 128, 140 (1978), and as a
result, this Court has long insisted that they “may not be
asserted vicariously,” id., at 133. It follows that a “person
who is aggrieved . . . only through the introduction of damaging
evidence secured by a search of a third person's premises
or property has not had any of his Fourth Amendment rights
infringed.” Id., at 134.
In this case, as Justice Kennedy cogently explains, the
cell-site records obtained by the Government belong to Carpenter's
cell service providers, not to Carpenter. See ante,
at 331–332. Carpenter did not create the cell-site records.
Nor did he have possession of them; at all relevant times,
they were kept by the providers. Once Carpenter subscribed
to his provider's service, he had no right to prevent
the company from creating or keeping the information in its
380 CARPENTER v. UNITED STATES
Alito, J., dissenting
records. Carpenter also had no right to demand that the
providers destroy the records, no right to prevent the providers
from destroying the records, and, indeed, no right to
modify the records in any way whatsoever (or to prevent the
providers from modifying the records). Carpenter, in short,
has no meaningful control over the cell-site records, which
are created, maintained, altered, used, and eventually destroyed
by his cell service providers.
Carpenter responds by pointing to a provision of the Telecommunications
Act that requires a provider to disclose cellsite
records when a customer so requests. See 47 U. S. C.
§ 222(c)(2). But a statutory disclosure requirement is hardly
suffcient to give someone an ownership interest in the documents
that must be copied and disclosed. Many statutes
confer a right to obtain copies of documents without creating
any property right.3
3 See, e. g., Freedom of Information Act, 5 U. S. C. § 552(a) (“Each agency
shall make available to the public information as follows . . . ”); Privacy
Act, 5 U. S. C. § 552a(d)(1) (“Each agency that maintains a system of records
shall . . . upon request by any individual to gain access to his record
or to any information pertaining to him which is contained in the system,
permit him and upon his request, a person of his own choosing to accompany
him, to review the record and have a copy made of all or any portion
thereof . . . ”); Fair Credit Reporting Act, 15 U. S. C. § 1681j(a)(1)(A) (“All
consumer reporting agencies . . . shall make all disclosures pursuant to
section 1681g of this title once during any 12-month period upon request
of the consumer and without charge to the consumer”); Right to Financial
Privacy Act of 1978, 12 U. S. C. § 3404(c) (“The customer has the right . . .
to obtain a copy of the record which the fnancial institution shall keep of
all instances in which the customer's record is disclosed to a Government
authority pursuant to this section, including the identity of the Government
authority to which such disclosure is made”); Government in the
Sunshine Act, 5 U. S. C. § 552b(f )(2) (“Copies of such transcript, or minutes,
or a transcription of such recording disclosing the identity of each speaker,
shall be furnished to any person at the actual cost of duplication or transcription”);
Cable Act, 47 U. S. C. § 551(d) (“A cable subscriber shall be
provided access to all personally identifable information regarding that
subscriber which is collected and maintained by a cable operator”); Family
Educational Rights and Privacy Act of 1974, 20 U. S. C. § 1232g(a)(1)(A)
Cite as: 585 U. S. 296 (2018) 381
Alito, J., dissenting
Carpenter's argument is particularly hard to swallow because
nothing in the Telecommunications Act precludes cell
service providers from charging customers a fee for accessing
cell-site records. See ante, at 332 (Kennedy, J., dissenting).
It would be very strange if the owner of records were
required to pay in order to inspect his own property.
Nor does the Telecommunications Act give Carpenter a
property right in the cell-site records simply because they
are subject to confdentiality restrictions. See 47 U. S. C.
§ 222(c)(1) (without a customer's permission, a cell service
provider may generally “use, disclose, or permit access to
individually identifable [cell-site records]” only with respect
to “its provision” of telecommunications services). Many
federal statutes impose similar restrictions on private entities'
use or dissemination of information in their own records
without conferring a property right on third parties.4
(“No funds shall be made available under any applicable program to any
educational agency or institution which has a policy of denying, or which
effectively prevents, the parents of students who are or have been in attendance
at a school of such agency or at such institution, as the case may
be, the right to inspect and review the education records of their children.
. . . Each educational agency or institution shall establish appropriate
procedures for the granting of a request by parents for access to the education
records of their children within a reasonable period of time, but in
no case more than forty-fve days after the request has been made”).
4 See, e. g., Family Educational Rights and Privacy Act, 20 U. S. C.
§ 1232g(b)(1) (“No funds shall be made available under any applicable program
to any educational agency or institution which has a policy or practice
of permitting the release of education records (or personally identifable
information contained therein other than directory information . . . )
of students without the written consent of their parents to any individual,
agency, or organization . . . ”); Video Privacy Protection Act, 18 U. S. C.
§ 2710(b)(1) (“A video tape service provider who knowingly discloses, to
any person, personally identifable information concerning any consumer
of such provider shall be liable to the aggrieved person for the relief provided
in subsection (d)”); Driver Privacy Protection Act, 18 U. S. C.
§ 2721(a)(1) (“A State department of motor vehicles, and any offcer, employee,
or contractor thereof, shall not knowingly disclose or otherwise
make available to any person or entity . . . personal information . . . ”); Fair
382 CARPENTER v. UNITED STATES
Alito, J., dissenting
It would be especially strange to hold that the Telecommunication
Act's confdentiality provision confers a property
right when the Act creates an express exception for any disclosure
of records that is “required by law.” 47 U. S. C.
§ 222(c)(1). So not only does Carpenter lack “ `the most
essential and benefcial' ” of the “ `constituent elements' ” of
property, Dickman v. Commissioner, 465 U. S. 330, 336
(1984)—i. e., the right to use the property to the exclusion of
others—but he cannot even exclude the party he would most
like to keep out, namely, the Government.5
Credit Reporting Act, 15 U. S. C. § 1681b(a) (“[A]ny consumer reporting
agency may furnish a consumer report under the following circumstances
and no other . . . ”); Right to Financial Privacy Act, 12 U. S. C. § 3403(a)
(“No fnancial institution, or offcer, employees, or agent of a fnancial institution,
may provide to any Government authority access to or copies of,
or the information contained in, the fnancial records of any customer except
in accordance with the provisions of this chapter”); Patient Safety
and Quality Improvement Act, 42 U. S. C. § 299b–22(b) (“Notwithstanding
any other provision of Federal, State, or local law, and subject to subsection
(c) of this section, patient safety work product shall be confdential
and shall not be disclosed”); Cable Act, 47 U. S. C. § 551(c)(1) (“[A] cable
operator shall not disclose personally identifable information concerning
any subscriber without the prior written or electronic consent of the subscriber
concerned and shall take such actions as are necessary to prevent
unauthorized access to such information by a person other than the subscriber
or cable operator”).
5 Carpenter also cannot argue that he owns the cell-site records merely
because they fall into the category of records referred to as “customer
proprietary network information.” 47 U. S. C. § 222(c). Even assuming
labels alone can confer property rights, nothing in this particular label
indicates whether the “information” is “proprietary” to the “customer” or
to the provider of the “network.” At best, the phrase “customer proprietary
network information” is ambiguous, and context makes clear that
it refers to the provider's information. The Telecommunications Act
defnes the term to include all “information that relates to the quantity,
technical confguration, type, destination, location, and amount of use of
a telecommunications service subscribed to by any customer of a telecommunications
carrier, and that is made available to the carrier by the
customer solely by virtue of the carrier-customer relationship. ”
§ 222(h)(1)(A). For Carpenter to be right, he must own not only the cellCite
as: 585 U. S. 296 (2018) 383
Alito, J., dissenting
For all these reasons, there is no plausible ground for
maintaining that the information at issue here represents
Carpenter's “papers” or “effects.” 6
B
In the days when this Court followed an exclusively
property-based approach to the Fourth Amendment, the distinction
between an individual's Fourth Amendment rights
and those of a third party was clear cut. We frst asked
whether the object of the search—say, a house, papers, or
effects—belonged to the defendant, and, if it did, whether
the Government had committed a “trespass” in acquiring the
evidence at issue. Jones, 565 U. S., at 411, n. 8.
When the Court held in Katz that “property rights are not
the sole measure of Fourth Amendment violations,” Soldal
v. Cook County, 506 U. S. 56, 64 (1992), the sharp boundary
between personal and third-party rights was tested. Under
Katz, a party may invoke the Fourth Amendment whenever
law enforcement offcers violate the party's “justifable” or
“reasonable” expectation of privacy. See 389 U. S., at 353;
see also id., at 361 (Harlan, J., concurring) (applying the
Fourth Amendment where “a person [has] exhibited an actual
(subjective) expectation of privacy” and where that “expectation
[is] one that society is prepared to recognize as
`reasonable' ”). Thus freed from the limitations imposed by
property law, parties began to argue that they had a reasonable
expectation of privacy in items owned by others. After
all, if a trusted third party took care not to disclose information
about the person in question, that person might well
site records in this case, but also records relating to, for example,
the “technical confguration” of his subscribed service—records that presumably
include such intensely personal and private information as
transmission wavelengths, transport protocols, and link layer system
confgurations.
6 Thus, this is not a case in which someone has entrusted papers that he
or she owns to the safekeeping of another, and it does not involve a bailment.
Cf. post, at 400 (Gorsuch, J., dissenting).
384 CARPENTER v. UNITED STATES
Alito, J., dissenting
have a reasonable expectation that the information would
not be revealed.
Efforts to claim Fourth Amendment protection against
searches of the papers and effects of others came to a head
in Miller, 425 U. S. 435, where the defendant sought the suppression
of two banks' microflm copies of his checks, deposit
slips, and other records. The defendant did not claim that
he owned these documents, but he nonetheless argued that
“analysis of ownership, property rights and possessory interests
in the determination of Fourth Amendment rights ha[d]
been severely impeached” by Katz and other recent cases.
See Brief for Respondent in United States v. Miller, O. T.
1975, No. 74–1179, p. 6. Turning to Katz, he then argued
that he had a reasonable expectation of privacy in the banks'
records regarding his accounts. Brief for Respondent in
No. 74–1179, at 6; see also Miller, supra, at 442–443.
Acceptance of this argument would have fown in the face
of the Fourth Amendment's text, and the Court rejected that
development. Because Miller gave up “dominion and control”
of the relevant information to his bank, Rakas, 439
U. S., at 149, the Court ruled that he lost any protected
Fourth Amendment interest in that information. See
Miller, supra, at 442–443. Later, in Smith v. Maryland,
442 U. S. 735, 745 (1979), the Court reached a similar conclusion
regarding a telephone company's records of a customer's
calls. As Justice Kennedy concludes, Miller and Smith
are thus best understood as placing “necessary limits on the
ability of individuals to assert Fourth Amendment interests
in property to which they lack a `requisite connection.' ”
Ante, at 327–328.
The same is true here, where Carpenter indisputably lacks
any meaningful property-based connection to the cell-site
records owned by his provider. Because the records are not
Carpenter's in any sense, Carpenter may not seek to use the
Fourth Amendment to exclude them.
By holding otherwise, the Court effectively allows Carpenter
to object to the “search” of a third party's property, not
Cite as: 585 U. S. 296 (2018) 385
Alito, J., dissenting
recognizing the revolutionary nature of this change. The
Court seems to think that Miller and Smith invented a new
“doctrine”—“the third-party doctrine”—and the Court refuses
to “extend” this product of the 1970's to a new age of
digital communications. Ante, at 309, 315. But the Court
fundamentally misunderstands the role of Miller and Smith.
Those decisions did not forge a new doctrine; instead, they
rejected an argument that would have disregarded the clear
text of the Fourth Amendment and a formidable body of
precedent.
In the end, the Court never explains how its decision can
be squared with the fact that the Fourth Amendment protects
only “[t]he right of the people to be secure in their
persons, houses, papers, and effects.” (Emphasis added.)
* * *
Although the majority professes a desire not to “ `embarrass
the future,' ” ante, at 316, we can guess where today's
decision will lead.
One possibility is that the broad principles that the
Court seems to embrace will be applied across the board.
All subpoenas duces tecum and all other orders compelling
the production of documents will require a demonstration of
probable cause, and individuals will be able to claim a protected
Fourth Amendment interest in any sensitive personal
information about them that is collected and owned by
third parties. Those would be revolutionary developments
indeed.
The other possibility is that this Court will face the embarrassment
of explaining in case after case that the principles
on which today's decision rests are subject to all sorts of
qualifcations and limitations that have not yet been discovered.
If we take this latter course, we will inevitably end
up “mak[ing] a crazy quilt of the Fourth Amendment.”
Smith, supra, at 745.
All of this is unnecessary. In the Stored Communications
Act, Congress addressed the specifc problem at issue in this
386 CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
case. The Act restricts the misuse of cell-site records by
cell service providers, something that the Fourth Amendment
cannot do. The Act also goes beyond current Fourth
Amendment case law in restricting access by law enforcement.
It permits law enforcement offcers to acquire cellsite
records only if they meet a heightened standard and obtain
a court order. If the American people now think that
the Act is inadequate or needs updating, they can turn to
their elected representatives to adopt more protective provisions.
Because the collection and storage of cell-site records
affects nearly every American, it is unlikely that the question
whether the current law requires strengthening will escape
Congress's notice.
Legislation is much preferable to the development of an
entirely new body of Fourth Amendment case law for many
reasons, including the enormous complexity of the subject,
the need to respond to rapidly changing technology, and the
Fourth Amendment's limited scope. The Fourth Amendment
restricts the conduct of the Federal Government and
the States; it does not apply to private actors. But today,
some of the greatest threats to individual privacy may come
from powerful private companies that collect and sometimes
misuse vast quantities of data about the lives of ordinary
Americans. If today's decision encourages the public to
think that this Court can protect them from this looming
threat to their privacy, the decision will mislead as well as
disrupt. And if holding a provision of the Stored Communications
Act to be unconstitutional dissuades Congress from
further legislation in this feld, the goal of protecting privacy
will be greatly disserved.
The desire to make a statement about privacy in the digital
age does not justify the consequences that today's decision
is likely to produce.
Justice Gorsuch, dissenting.
In the late 1960s this Court suggested for the frst time
that a search triggering the Fourth Amendment occurs when
Cite as: 585 U. S. 296 (2018) 387
Gorsuch, J., dissenting
the government violates an “expectation of privacy” that
“society is prepared to recognize as `reasonable.' ” Katz v.
United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring).
Then, in a pair of decisions in the 1970s applying the
Katz test, the Court held that a “reasonable expectation of
privacy” doesn't attach to information shared with “third
parties.” See Smith v. Maryland, 442 U. S. 735, 743–744
(1979); United States v. Miller, 425 U. S. 435, 443 (1976). By
these steps, the Court came to conclude, the Constitution
does nothing to limit investigators from searching records
you've entrusted to your bank, accountant, and maybe even
your doctor.
What's left of the Fourth Amendment? Today we use the
Internet to do most everything. Smartphones make it easy
to keep a calendar, correspond with friends, make calls, conduct
banking, and even watch the game. Countless Internet
companies maintain records about us and, increasingly,
for us. Even our most private documents—those that, in
other eras, we would have locked safely in a desk drawer or
destroyed—now reside on third party servers. Smith and
Miller teach that the police can review all of this material,
on the theory that no one reasonably expects any of it will
be kept private. But no one believes that, if they ever did.
What to do? It seems to me we could respond in at least
three ways. The frst is to ignore the problem, maintain
Smith and Miller, and live with the consequences. If the
confuence of these decisions and modern technology means
our Fourth Amendment rights are reduced to nearly nothing,
so be it. The second choice is to set Smith and Miller aside
and try again using the Katz “reasonable expectation of privacy”
jurisprudence that produced them. The third is to
look for answers elsewhere.
*
Start with the frst option. Smith held that the government's
use of a pen register to record the numbers people
dial on their phones doesn't infringe a reasonable expectation
388 CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
of privacy because that information is freely disclosed to the
third party phone company. 442 U. S., at 743–744. Miller
held that a bank account holder enjoys no reasonable expectation
of privacy in the bank's records of his account activity.
That's true, the Court reasoned, “even if the information is
revealed on the assumption that it will be used only for a
limited purpose and the confdence placed in the third party
will not be betrayed.” 425 U. S., at 443. Today the Court
suggests that Smith and Miller distinguish between kinds
of information disclosed to third parties and require courts
to decide whether to “extend” those decisions to particular
classes of information, depending on their sensitivity. See
ante, at 309–316. But as the Sixth Circuit recognized and
Justice Kennedy explains, no balancing test of this kind
can be found in Smith and Miller. See ante, at 335–336 (dissenting
opinion). Those cases announced a categorical rule:
Once you disclose information to third parties, you forfeit
any reasonable expectation of privacy you might have had in
it. And even if Smith and Miller did permit courts to conduct
a balancing contest of the kind the Court now suggests,
it's still hard to see how that would help the petitioner in
this case. Why is someone's location when using a phone so
much more sensitive than who he was talking to (Smith) or
what fnancial transactions he engaged in (Miller)? I do not
know and the Court does not say.
The problem isn't with the Sixth Circuit's application of
Smith and Miller but with the cases themselves. Can the
government demand a copy of all your e-mails from Google
or Microsoft without implicating your Fourth Amendment
rights? Can it secure your DNA from 23andMe without a
warrant or probable cause? Smith and Miller say yes it
can—at least without running afoul of Katz. But that result
strikes most lawyers and judges today—me included—as
pretty unlikely. In the years since its adoption, countless
scholars, too, have come to conclude that the “third-party
doctrine is not only wrong, but horribly wrong.” Kerr, The
Cite as: 585 U. S. 296 (2018) 389
Gorsuch, J., dissenting
Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561,
563, n. 5, 564 (2009) (collecting criticisms but defending the
doctrine (footnotes omitted)). The reasons are obvious.
“As an empirical statement about subjective expectations of
privacy,” the doctrine is “quite dubious.” Baude & Stern,
The Positive Law Model of the Fourth Amendment, 129
Harv. L. Rev. 1821, 1872 (2016). People often do reasonably
expect that information they entrust to third parties, especially
information subject to confdentiality agreements,
will be kept private. Meanwhile, if the third party doctrine
is supposed to represent a normative assessment of when
a person should expect privacy, the notion that the answer
might be “never” seems a pretty unattractive societal
prescription. Ibid.
What, then, is the explanation for our third-party doctrine?
The truth is, the Court has never offered a persuasive
justifcation. The Court has said that by conveying
information to a third party you “ `assum[e] the risk' ” it will
be revealed to the police and therefore lack a reasonable
expectation of privacy in it. Smith, supra, at 744. But assumption
of risk doctrine developed in tort law. It generally
applies when “by contract or otherwise [one] expressly
agrees to accept a risk of harm” or impliedly does so by
“manifest[ing] his willingness to accept” that risk and
thereby “take[s] his chances as to harm which may result
from it.” Restatement (Second) of Torts §§ 496B, 496C(1),
and Comment b, pp. 565, 570 (1964); see also 1 D. Dobbs,
P. Hayden, & E. Bublick, Law of Torts §§ 235–236, pp. 841–
850 (2d ed. 2017). That rationale has little play in this context.
Suppose I entrust a friend with a letter and he promises
to keep it secret until he delivers it to an intended recipient.
In what sense have I agreed to bear the risk that he will turn
around, break his promise, and spill its contents to someone
else? More confusing still, what have I done to “manifest my
willingness to accept” the risk that the government will pry
the document from my friend and read it without his consent?
390 CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
One possible answer concerns knowledge. I know that
my friend might break his promise, or that the government
might have some reason to search the papers in his possession.
But knowing about a risk doesn't mean you assume
responsibility for it. Whenever you walk down the sidewalk
you know a car may negligently or recklessly veer off and
hit you, but that hardly means you accept the consequences
and absolve the driver of any damage he may do to you.
Epstein, Privacy and the Third Hand: Lessons From the
Common Law of Reasonable Expectations, 24 Berkeley
Tech. L. J. 1199, 1204 (2009); see W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser & Keeton on Law of Torts 490
(5th ed. 1984).
Some have suggested the third party doctrine is better
understood to rest on consent than assumption of risk. “So
long as a person knows that they are disclosing information
to a third party,” the argument goes, “their choice to do so
is voluntary and the consent valid.” Kerr, supra, at 588. I
confess I still don't see it. Consenting to give a third party
access to private papers that remain my property is not the
same thing as consenting to a search of those papers by the
government. Perhaps there are exceptions, like when the
third party is an undercover government agent. See Murphy,
The Case Against the Case for Third-Party Doctrine: A
Response to Epstein and Kerr, 24 Berkeley Tech. L. J. 1239,
1252 (2009); cf. Hoffa v. United States, 385 U. S. 293 (1966).
But otherwise this conception of consent appears to be just
assumption of risk relabeled—you've “consented” to whatever
risks are foreseeable.
Another justifcation sometimes offered for third party
doctrine is clarity. You (and the police) know exactly how
much protection you have in information confded to others:
none. As rules go, “the king always wins” is admirably
clear. But the opposite rule would be clear too: Third party
disclosures never diminish Fourth Amendment protection
(call it “the king always loses”). So clarity alone cannot justify
the third party doctrine.
Cite as: 585 U. S. 296 (2018) 391
Gorsuch, J., dissenting
In the end, what do Smith and Miller add up to? A
doubtful application of Katz that lets the government search
almost whatever it wants whenever it wants. The Sixth
Circuit had to follow that rule and faithfully did just that,
but it's not clear why we should.
*
There's a second option. What if we dropped Smith and
Miller's third party doctrine and retreated to the root Katz
question whether there is a “reasonable expectation of privacy”
in data held by third parties? Rather than solve the
problem with the third party doctrine, I worry this option
only risks returning us to its source: After all, it was Katz
that produced Smith and Miller in the frst place.
Katz's problems start with the text and original understanding
of the Fourth Amendment, as Justice Thomas
thoughtfully explains today. Ante, at 346–357 (dissenting
opinion). The Amendment's protections do not depend on
the breach of some abstract “expectation of privacy” whose
contours are left to the judicial imagination. Much more
concretely, it protects your “person,” and your “houses, papers,
and effects.” Nor does your right to bring a Fourth
Amendment claim depend on whether a judge happens to
agree that your subjective expectation to privacy is a “reasonable”
one. Under its plain terms, the Amendment grants
you the right to invoke its guarantees whenever one of your
protected things (your person, your house, your papers, or
your effects) is unreasonably searched or seized. Period.
History too holds problems for Katz. Little like it can
be found in the law that led to the adoption of the Fourth
Amendment or in this Court's jurisprudence until the late
1960s. The Fourth Amendment came about in response to
a trio of 18th-century cases “well known to the men who
wrote and ratifed the Bill of Rights, [and] famous throughout
the colonial population.” Stuntz, The Substantive Origins
of Criminal Procedure, 105 Yale L. J. 393, 397 (1995). The
frst two were English cases invalidating the Crown's use of
392 CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
general warrants to enter homes and search papers. Entick
v. Carrington, 19 How. St. Tr. 1029 (K. B. 1765); Wilkes v.
Wood, 19 How. St. Tr. 1153 (K. B. 1763); see W. Cuddihy, The
Fourth Amendment: Origins and Original Meaning 439–487
(2009); Boyd v. United States, 116 U. S. 616, 625–630 (1886).
The third was American: the Boston Writs of Assistance
Case, which sparked colonial outrage at the use of writs permitting
government agents to enter houses and businesses,
breaking open doors and chests along the way, to conduct
searches and seizures—and to force third parties to help
them. Stuntz, supra, at 404–409; M. Smith, The Writs of
Assistance Case (1978). No doubt the colonial outrage engendered
by these cases rested in part on the government's
intrusion upon privacy. But the framers chose not to protect
privacy in some ethereal way dependent on judicial intuitions.
They chose instead to protect privacy in particular
places and things—“persons, houses, papers, and effects”—
and against particular threats—“unreasonable” governmental
“searches and seizures.” See Entick, supra, at 1066
(“Papers are the owner's goods and chattels: they are his
dearest property; and so far from enduring a seizure, that
they will hardly bear an inspection”); see also ante, p. 342
(Thomas, J., dissenting).
Even taken on its own terms, Katz has never been suffciently
justifed. In fact, we still don't even know what its
“reasonable expectation of privacy” test is. Is it supposed
to pose an empirical question (what privacy expectations do
people actually have) or a normative one (what expectations
should they have)? Either way brings problems. If the
test is supposed to be an empirical one, it's unclear why
judges rather than legislators should conduct it. Legislators
are responsive to their constituents and have institutional
resources designed to help them discern and enact majoritarian
preferences. Politically insulated judges come
armed with only the attorneys' briefs, a few law clerks, and
Cite as: 585 U. S. 296 (2018) 393
Gorsuch, J., dissenting
their own idiosyncratic experiences. They are hardly the
representative group you'd expect (or want) to be making
empirical judgments for hundreds of millions of people. Unsurprisingly,
too, judicial judgments often fail to refect public
views. See Slobogin & Schumacher, Reasonable Expectations
of Privacy and Autonomy in Fourth Amendment
Cases: An Empirical Look at “Understandings Recognized
and Permitted by Society,” 42 Duke L. J. 727, 732, 740–742
(1993). Consider just one example. Our cases insist that
the seriousness of the offense being investigated does not
reduce Fourth Amendment protection. Mincey v. Arizona,
437 U. S. 385, 393–394 (1978). Yet scholars suggest that
most people are more tolerant of police intrusions when they
investigate more serious crimes. See Blumenthal, Adya, &
Mogle, The Multiple Dimensions of Privacy: Testing Lay
“Expectations of Privacy,” 11 U. Pa. J. Const. L. 331, 352–
353 (2009). And I very much doubt that this Court would
be willing to adjust its Katz cases to refect these fndings
even if it believed them.
Maybe, then, the Katz test should be conceived as a normative
question. But if that's the case, why (again) do
judges, rather than legislators, get to determine whether society
should be prepared to recognize an expectation of privacy
as legitimate? Deciding what privacy interests should
be recognized often calls for a pure policy choice, many times
between incommensurable goods—between the value of privacy
in a particular setting and society's interest in combating
crime. Answering questions like that calls for the exercise
of raw political will belonging to legislatures, not
the legal judgment proper to courts. See The Federalist
No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton). When
judges abandon legal judgment for political will we not only
risk decisions where “reasonable expectations of privacy”
come to bear “an uncanny resemblance to those expectations
of privacy” shared by Members of this Court. Minnesota v.
394 CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
Carter, 525 U. S. 83, 97 (1998) (Scalia, J., concurring).
We also risk undermining public confdence in the courts
themselves.
My concerns about Katz come with a caveat. Sometimes,
I accept, judges may be able to discern and describe existing
societal norms. See, e. g., Florida v. Jardines, 569 U. S.
1, 8 (2013) (inferring a license to enter on private property
from the “ `habits of the country' ” (quoting McKee v. Gratz,
260 U. S. 127, 136 (1922))); Sachs, Finding Law, 107 Cal.
L. Rev. 527 (2019). That is particularly true when the judge
looks to positive law rather than intuition for guidance on
social norms. See Byrd v. United States, 584 U. S. 395, 405
(2018) (“general property-based concept[s] guid[e the] resolution
of this case”). So there may be some occasions where
Katz is capable of principled application—though it may simply
wind up approximating the more traditional option I will
discuss in a moment. Sometimes it may also be possible to
apply Katz by analogizing from precedent when the line between
an existing case and a new fact pattern is short and
direct. But so far this Court has declined to tie itself to
any signifcant restraints like these. See ante, at 304, n. 1
(“[W]hile property rights are often informative, our cases by
no means suggest that such an interest is `fundamental' or
`dispositive' in determining which expectations of privacy
are legitimate”).
As a result, Katz has yielded an often unpredictable—and
sometimes unbelievable—jurisprudence. Smith and Miller
are only two examples; there are many others. Take Florida
v. Riley, 488 U. S. 445 (1989), which says that a police
helicopter hovering 400 feet above a person's property invades
no reasonable expectation of privacy. Try that one
out on your neighbors. Or California v. Greenwood, 486
U. S. 35 (1988), which holds that a person has no reasonable
expectation of privacy in the garbage he puts out for collection.
In that case, the Court said that the homeowners
Cite as: 585 U. S. 296 (2018) 395
Gorsuch, J., dissenting
forfeited their privacy interests because “[i]t is common
knowledge that plastic garbage bags left on or at the side of
a public street are readily accessible to animals, children,
scavengers, snoops, and other members of the public.” Id., at
40 (footnotes omitted). But the habits of raccoons don't prove
much about the habits of the country. I doubt, too, that most
people spotting a neighbor rummaging through their garbage
would think they lacked reasonable grounds to confront the
rummager. Making the decision all the stranger, California
state law expressly protected a homeowner's property rights
in discarded trash. Id., at 43. Yet rather than defer to that
as evidence of the people's habits and reasonable expectations
of privacy, the Court substituted its own curious judgment.
Resorting to Katz in data privacy cases threatens more of
the same. Just consider. The Court today says that judges
should use Katz's reasonable expectation of privacy test to
decide what Fourth Amendment rights people have in cellsite
location information, explaining that “no single rubric
defnitively resolves which expectations of privacy are entitled
to protection.” Ante, at 304. But then it offers a
twist. Lower courts should be sure to add two special principles
to their Katz calculus: the need to avoid “arbitrary
power” and the importance of “plac[ing] obstacles in the way
of a too permeating police surveillance.” Ante, at 305 (internal
quotation marks omitted). While surely laudable,
these principles don't offer lower courts much guidance.
The Court does not tell us, for example, how far to carry
either principle or how to weigh them against the legitimate
needs of law enforcement. At what point does access to
electronic data amount to “arbitrary” authority? When
does police surveillance become “too permeating”? And
what sort of “obstacles” should judges “place” in law enforcement's
path when it does? We simply do not know.
The Court's application of these principles supplies little
more direction. The Court declines to say whether there is
396 CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
any suffciently limited period of time “for which the Government
may obtain an individual's historical [location information]
free from Fourth Amendment scrutiny.” Ante, at 310,
n. 3; see ante, at 309–313. But then it tells us that access
to seven days' worth of information does trigger Fourth
Amendment scrutiny—even though here the carrier “produced
only two days of records.” Ante, at 310, n. 3. Why
is the relevant fact the seven days of information the government
asked for instead of the two days of information the
government actually saw? Why seven days instead of ten
or three or one? And in what possible sense did the government
“search” fve days' worth of location information it was
never even sent? We do not know.
Later still, the Court adds that it can't say whether the
Fourth Amendment is triggered when the government collects
“real-time CSLI or `tower dumps' (a download of information
on all the devices that connected to a particular cell
site during a particular interval).” Ante, at 316. But what
distinguishes historical data from real-time data, or seven
days of a single person's data from a download of everyone's
data over some indefnite period of time? Why isn't a tower
dump the paradigmatic example of “too permeating police
surveillance” and a dangerous tool of “arbitrary” authority—
the touchstones of the majority's modifed Katz analysis?
On what possible basis could such mass data collection survive
the Court's test while collecting a single person's data
does not? Here again we are left to guess. At the same
time, though, the Court offers some frm assurances. It tells
us its decision does not “call into question conventional surveillance
techniques and tools, such as security cameras.”
Ante, at 316. That, however, just raises more questions for
lower courts to sort out about what techniques qualify as
“conventional” and why those techniques would be okay even
if they lead to “permeating police surveillance” or “arbitrary
police power.”
Nor is this the end of it. After fnding a reasonable expectation
of privacy, the Court says there's still more work to
Cite as: 585 U. S. 296 (2018) 397
Gorsuch, J., dissenting
do. Courts must determine whether to “extend” Smith and
Miller to the circumstances before them. Ante, at 309–310,
313–316. So apparently Smith and Miller aren't quite left
for dead; they just no longer have the clear reach they once
did. How do we measure their new reach? The Court says
courts now must conduct a second Katz-like balancing inquiry,
asking whether the fact of disclosure to a third party
outweighs privacy interests in the “category of information”
so disclosed. Ante, at 312, 313–316. But how are lower
courts supposed to weigh these radically different interests?
Or assign values to different categories of information? All
we know is that historical cell-site location information (for
seven days, anyway) escapes Smith's and Miller's shorn
grasp, while a lifetime of bank or phone records does not.
As to any other kind of information, lower courts will have
to stay tuned.
In the end, our lower court colleagues are left with two
amorphous balancing tests, a series of weighty and incommensurable
principles to consider in them, and a few
illustrative examples that seem little more than the product
of judicial intuition. In the Court's defense, though, we
have arrived at this strange place not because the Court has
misunderstood Katz. Far from it. We have arrived here
because this is where Katz inevitably leads.
*
There is another way. From the founding until the 1960s,
the right to assert a Fourth Amendment claim didn't depend
on your ability to appeal to a judge's personal sensibilities
about the “reasonableness” of your expectations or privacy.
It was tied to the law. Jardines, 569 U. S., at 11; United
States v. Jones, 565 U. S. 400, 405 (2012). The Fourth
Amendment protects “the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.” True to those words and their
original understanding, the traditional approach asked if a
house, paper, or effect was yours under law. No more was
398 CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
needed to trigger the Fourth Amendment. Though now
often lost in Katz's shadow, this traditional understanding
persists. Katz only “supplements, rather than displaces,
the traditional property-based understanding of the Fourth
Amendment.” Byrd, 584 U. S., at 403–404 (internal quotation
marks omitted); Jardines, supra, at 11 (same); Soldal v.
Cook County, 506 U. S. 56, 64 (1992) (Katz did not “snuf[f]
out the previously recognized protection for property under
the Fourth Amendment”).
Beyond its provenance in the text and original understanding
of the Amendment, this traditional approach comes
with other advantages. Judges are supposed to decide cases
based on “democratically legitimate sources of law”—like
positive law or analogies to items protected by the enacted
Constitution—rather than “their own biases or personal policy
preferences.” Pettys, Judicial Discretion in Constitutional
Cases, 26 J. L. & Pol. 123, 127 (2011). A Fourth
Amendment model based on positive legal rights “carves out
signifcant room for legislative participation in the Fourth
Amendment context,” too, by asking judges to consult what
the people's representatives have to say about their rights.
Baude & Stern, 129 Harv. L. Rev., at 1852. Nor is this approach
hobbled by Smith and Miller, for those cases are just
limitations on Katz, addressing only the question whether
individuals have a reasonable expectation of privacy in materials
they share with third parties. Under this more traditional
approach, Fourth Amendment protections for your papers
and effects do not automatically disappear just because
you share them with third parties.
Given the prominence Katz has claimed in our doctrine,
American courts are pretty rusty at applying the traditional
approach to the Fourth Amendment. We know that if a
house, paper, or effect is yours, you have a Fourth Amendment
interest in its protection. But what kind of legal interest
is suffcient to make something yours? And what
source of law determines that? Current positive law? The
Cite as: 585 U. S. 296 (2018) 399
Gorsuch, J., dissenting
common law at 1791, extended by analogy to modern times?
Both? See Byrd, supra, at 412–413 (Thomas, J., concurring);
cf. Re, The Positive Law Floor, 129 Harv. L. Rev.
Forum 313 (2016). Much work is needed to revitalize this
area and answer these questions. I do not begin to claim
all the answers today, but (unlike with Katz) at least I have
a pretty good idea what the questions are. And it seems to
me a few things can be said.
First, the fact that a third party has access to or possession
of your papers and effects does not necessarily eliminate
your interest in them. Ever hand a private document to a
friend to be returned? Toss your keys to a valet at a restaurant?
Ask your neighbor to look after your dog while you
travel? You would not expect the friend to share the document
with others; the valet to lend your car to his buddy; or
the neighbor to put Fido up for adoption. Entrusting your
stuff to others is a bailment. A bailment is the “delivery of
personal property by one person (the bailor) to another (the
bailee) who holds the property for a certain purpose.”
Black's Law Dictionary 169 (10th ed. 2014); J. Story, Commentaries
on the Law of Bailments § 2, p. 2 (1832) (“[A] bailment
is a delivery of a thing in trust for some special object
or purpose, and upon a contract, expressed or implied, to
conform to the object or purpose of the trust”). A bailee
normally owes a legal duty to keep the item safe, according
to the terms of the parties' contract if they have one, and
according to the “implication[s] from their conduct” if they
don't. 8 C. J. S., Bailments § 36, pp. 468–469 (2017). A
bailee who uses the item in a different way than he's supposed
to, or against the bailor's instructions, is liable for conversion.
Id., § 43, at 481; see Goad v. Harris, 207 Ala. 357,
92 So. 546 (1922); Knight v. Seney, 290 Ill. 11, 17, 124 N. E.
813, 815–816 (1919); Baxter v. Woodward, 191 Mich. 379, 385,
158 N. W. 137, 139 (1916). This approach is quite different
from Smith's and Miller's (counter)-intuitive approach to
reasonable expectations of privacy; where those cases extin400
CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
guish Fourth Amendment interests once records are given
to a third party, property law may preserve them.
Our Fourth Amendment jurisprudence already refects
this truth. In Ex parte Jackson, 96 U. S. 727 (1878), this
Court held that sealed letters placed in the mail are “as fully
guarded from examination and inspection, except as to their
outward form and weight, as if they were retained by the
parties forwarding them in their own domiciles.” Id., at
733. The reason, drawn from the Fourth Amendment's text,
was that “[t]he constitutional guaranty of the right of the
people to be secure in their papers against unreasonable
searches and seizures extends to their papers, thus closed
against inspection, wherever they may be.” Ibid. (emphasis
added). It did not matter that letters were bailed to a third
party (the government, no less). The sender enjoyed the
same Fourth Amendment protection as he does “when papers
are subjected to search in one's own household.” Ibid.
These ancient principles may help us address modern data
cases too. Just because you entrust your data—in some
cases, your modern-day papers and effects—to a third party
may not mean you lose any Fourth Amendment interest in
its contents. Whatever may be left of Smith and Miller,
few doubt that e-mail should be treated much like the
traditional mail it has largely supplanted—as a bailment in
which the owner retains a vital and protected legal interest.
See ante, at 332 (Kennedy, J., dissenting) (noting that enhanced
Fourth Amendment protection may apply when the
“modern-day equivalents of an individual's own `papers' or
`effects' . . . are held by a third party” through “bailment”);
ante, at 383, n. 6 (Alito, J., dissenting) (reserving the question
whether Fourth Amendment protection may apply in
the case of “bailment” or when “someone has entrusted papers
that he or she owns to the safekeeping of another”); United
States v. Warshak, 631 F. 3d 266, 285–286 (CA6 2010) (relying
on an analogy to Jackson to extend Fourth Amendment protection
to e-mail held by a third party service provider).
Cite as: 585 U. S. 296 (2018) 401
Gorsuch, J., dissenting
Second, I doubt that complete ownership or exclusive control
of property is always a necessary condition to the
assertion of a Fourth Amendment right. Where houses
are concerned, for example, individuals can enjoy Fourth
Amendment protection without fee simple title. Both the
text of the Amendment and the common-law rule support
that conclusion. “People call a house `their' home when
legal title is in the bank, when they rent it, and even when
they merely occupy it rent free.” Carter, 525 U. S., at 95–
96 (Scalia, J., concurring). That rule derives from the common
law. Oystead v. Shed, 13 Mass. 520, 523 (1816) (explaining,
citing “[t]he very learned judges, Foster, Hale, and
Coke,” that the law “would be as much disturbed by a forcible
entry to arrest a boarder or a servant, who had acquired,
by contract, express or implied, a right to enter the house at
all times, and to remain in it as long as they please, as if the
object were to arrest the master of the house or his children”).
That is why tenants and resident family members—
though they have no legal title—have standing to complain
about searches of the houses in which they live. Chapman
v. United States, 365 U. S. 610, 616–617 (1961); Bumper v.
North Carolina, 391 U. S. 543, 548, n. 11 (1968).
Another point seems equally true: Just because you have
to entrust a third party with your data doesn't necessarily
mean you should lose all Fourth Amendment protections in
it. Not infrequently one person comes into possession of
someone else's property without the owner's consent.
Think of the fnder of lost goods or the policeman who impounds
a car. The law recognizes that the goods and the
car still belong to their true owners, for “where a person
comes into lawful possession of the personal property of another,
even though there is no formal agreement between
the property's owner and its possessor, the possessor will
become a constructive bailee when justice so requires.”
Christensen v. Hoover, 643 P. 2d 525, 529 (Colo. 1982);
Laidlaw, Principles of Bailment, 16 Cornell L. Q. 286
402 CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
(1931). At least some of this Court's decisions have already
suggested that use of technology is functionally compelled
by the demands of modern life, and in that way the fact that
we store data with third parties may amount to a sort of
involuntary bailment too. See ante, at 311–312 (majority
opinion); Riley v. California, 573 U. S. 373, 385 (2014).
Third, positive law may help provide detailed guidance on
evolving technologies without resort to judicial intuition.
State (or sometimes federal) law often creates rights in both
tangible and intangible things. See Ruckelshaus v. Monsanto
Co., 467 U. S. 986, 1001 (1984). In the context of the
Takings Clause we often ask whether those state-created
rights are suffcient to make something someone's property
for constitutional purposes. See id., at 1001–1003; Louisville
Joint Stock Land Bank v. Radford, 295 U. S. 555, 590–
595 (1935). A similar inquiry may be appropriate for the
Fourth Amendment. Both the States and federal government
are actively legislating in the area of third party data
storage and the rights users enjoy. See, e. g., Stored Communications
Act, 18 U. S. C. § 2701 et seq.; Tex. Prop. Code
Ann. § 111.004(12) (West 2014) (defning “[p]roperty” to include
“property held in any digital or electronic medium”).
State courts are busy expounding common-law property
principles in this area as well. E. g., Ajemian v. Yahoo!,
Inc., 478 Mass. 169, 170, 84 N. E. 3d 766, 768 (2017) (e-mail
account is a “form of property often referred to as a `digital
asset' ”); Eysoldt v. ProScan Imaging, 194 Ohio App. 3d 630,
638, 2011-Ohio-2359, 957 N. E. 2d 780, 786 (permitting action
for conversion of web account as intangible property). If
state legislators or state courts say that a digital record has
the attributes that normally make something property, that
may supply a sounder basis for judicial decisionmaking than
judicial guesswork about societal expectations.
Fourth, while positive law may help establish a person's
Fourth Amendment interest there may be some circumstances
where positive law cannot be used to defeat it.
Cite as: 585 U. S. 296 (2018) 403
Gorsuch, J., dissenting
Ex parte Jackson refects that understanding. There this
Court said that “[n]o law of Congress” could authorize letter
carriers “to invade the secrecy of letters.” 96 U. S., at 733.
So the post offce couldn't impose a regulation dictating that
those mailing letters surrender all legal interests in them
once they're deposited in a mailbox. If that is right, Jackson
suggests the existence of a constitutional foor below
which Fourth Amendment rights may not descend. Legislatures
cannot pass laws declaring your house or papers to
be your property except to the extent the police wish to
search them without cause. As the Court has previously
explained, “we must `assur[e] preservation of that degree of
privacy against government that existed when the Fourth
Amendment was adopted.' ” Jones, 565 U. S., at 406 (quoting
Kyllo v. United States, 533 U. S. 27, 34 (2001)). Nor does
this mean protecting only the specifc rights known at the
founding; it means protecting their modern analogues too.
So, for example, while thermal imaging was unknown in
1791, this Court has recognized that using that technology
to look inside a home constitutes a Fourth Amendment
“search” of that “home” no less than a physical inspection
might. Id., at 40.
Fifth, this constitutional foor may, in some instances, bar
efforts to circumvent the Fourth Amendment's protection
through the use of subpoenas. No one thinks the government
can evade Jackson's prohibition on opening sealed letters
without a warrant simply by issuing a subpoena to a
postmaster for “all letters sent by John Smith” or, worse, “all
letters sent by John Smith concerning a particular transaction.”
So the question courts will confront will be this:
What other kinds of records are suffciently similar to letters
in the mail that the same rule should apply?
It may be that, as an original matter, a subpoena requiring
the recipient to produce records wasn't thought of as a
“search or seizure” by the government implicating the Fourth
Amendment, see ante, at 362–371 (opinion of Alito, J.),
404 CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
but instead as an act of compelled self-incrimination implicating
the Fifth Amendment, see United States v. Hubbell, 530
U. S. 27, 49–55 (2000) (Thomas, J., concurring); Nagareda,
Compulsion “To Be a Witness” and the Resurrection of
Boyd, 74 N. Y. U. L. Rev. 1575, 1619, and n. 172 (1999). But
the common law of searches and seizures does not appear to
have confronted a case where private documents equivalent
to a mailed letter were entrusted to a bailee and then subpoenaed.
As a result, “[t]he common-law rule regarding
subpoenas for documents held by third parties entrusted
with information from the target is . . . unknown and perhaps
unknowable.” Dripps, Perspectives on the Fourth Amendment
Forty Years Later: Toward the Realization of an Inclusive
Regulatory Model, 100 Minn. L. Rev. 1885, 1922 (2016).
Given that (perhaps insoluble) uncertainty, I am content to
adhere to Jackson and its implications for now.
To be sure, we must be wary of returning to the doctrine of
Boyd v. United States, 116 U. S. 616. Boyd invoked the
Fourth Amendment to restrict the use of subpoenas even for
ordinary business records and, as Justice Alito notes, eventually
proved unworkable. See ante, at 373 (dissenting opinion);
3 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure
§ 8.7(a), pp. 185–187 (4th ed. 2015). But if we were to
overthrow Jackson too and deny Fourth Amendment protection
to any subpoenaed materials, we would do well to reconsider
the scope of the Fifth Amendment while we're at it.
Our precedents treat the right against self-incrimination as
applicable only to testimony, not the production of incriminating
evidence. See Fisher v. United States, 425 U. S. 391,
401 (1976). But there is substantial evidence that the privilege
against self-incrimination was also originally understood
to protect a person from being forced to turn over
potentially incriminating evidence. Nagareda, supra, at
1605–1623; Rex v. Purnell, 96 Eng. Rep. 20 (K. B. 1748); C.
Slobogin, Privacy at Risk 145 (2007).
Cite as: 585 U. S. 296 (2018) 405
Gorsuch, J., dissenting
*
What does all this mean for the case before us? To start,
I cannot fault the Sixth Circuit for holding that Smith and
Miller extinguish any Katz-based Fourth Amendment interest
in third party cell-site data. That is the plain effect of
their categorical holdings. Nor can I fault the Court today
for its implicit but unmistakable conclusion that the rationale
of Smith and Miller is wrong; indeed, I agree with that.
The Sixth Circuit was powerless to say so, but this Court
can and should. At the same time, I do not agree with the
Court's decision today to keep Smith and Miller on life support
and supplement them with a new and multilayered inquiry
that seems to be only Katz-squared. Returning there,
I worry, promises more trouble than help. Instead, I would
look to a more traditional Fourth Amendment approach.
Even if Katz may still supply one way to prove a Fourth
Amendment interest, it has never been the only way. Neglecting
more traditional approaches may mean failing to
vindicate the full protections of the Fourth Amendment.
Our case offers a cautionary example. It seems to me entirely
possible a person's cell-site data could qualify as his
papers or effects under existing law. Yes, the telephone carrier
holds the information. But 47 U. S. C. § 222 designates
a customer's cell-site location information as “customer proprietary
network information” (CPNI), § 222(h)(1)(A), and
gives customers certain rights to control use of and access
to CPNI about themselves. The statute generally forbids
a carrier to “use, disclose, or permit access to individually
identifable” CPNI without the customer's consent, except as
needed to provide the customer's telecommunications services.
§ 222(c)(1). It also requires the carrier to disclose
CPNI “upon affrmative written request by the customer, to
any person designated by the customer.” § 222(c)(2). Congress
even afforded customers a private cause of action for
damages against carriers who violate the Act's terms. § 207.
406 CARPENTER v. UNITED STATES
Gorsuch, J., dissenting
Plainly, customers have substantial legal interests in this information,
including at least some right to include, exclude,
and control its use. Those interests might even rise to the
level of a property right.
The problem is that we do not know anything more. Before
the district court and court of appeals, Mr. Carpenter
pursued only a Katz “reasonable expectations” argument.
He did not invoke the law of property or any analogies to
the common law, either there or in his petition for certiorari.
Even in his merits brief before this Court, Mr. Carpenter's
discussion of his positive law rights in cell-site data was cursory.
He offered no analysis, for example, of what rights
state law might provide him in addition to those supplied by
§ 222. In these circumstances, I cannot help but conclude—
reluctantly—that Mr. Carpenter forfeited perhaps his most
promising line of argument.
Unfortunately, too, this case marks the second time this
Term that individuals have forfeited Fourth Amendment arguments
based on positive law by failing to preserve them.
See Byrd, 584 U. S., at 404. Litigants have had fair notice
since at least United States v. Jones (2012) and Florida v.
Jardines (2013) that arguments like these may vindicate
Fourth Amendment interests even where Katz arguments
do not. Yet the arguments have gone unmade, leaving
courts to the usual Katz hand waving. These omissions do
not serve the development of a sound or fully protective
Fourth Amendment jurisprudence.
OCTOBER TERM, 2017 407
Syllabus
WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
certiorari to the united states court of appeals for
the federal circuit
No. 16–1011. Argued April 16, 2018—Decided June 22, 2018
Petitioner WesternGeco LLC owns patents for a system used to survey
the ocean foor. Respondent ION Geophysical Corp. began selling a
competing system that was built from components manufactured in the
United States, shipped to companies abroad, and assembled there into
a system indistinguishable from WesternGeco's. WesternGeco sued for
patent infringement under 35 U. S. C. §§ 271(f )(1) and (f )(2). The jury
found ION liable and awarded WesternGeco damages in royalties and
lost profts under § 284. ION moved to set aside the verdict, arguing
that WesternGeco could not recover damages for lost profts because
§ 271(f ) does not apply extraterritorially. The District Court denied the
motion, but the Federal Circuit reversed. ION was liable for infringement
under § 271(f )(2), the court reasoned, but § 271(f ) does not allow
patent owners to recover for lost foreign profts. On remand from this
Court in light of Halo Electronics, Inc. v. Pulse Electronics, Inc., 579
U. S. 93, the Federal Circuit reinstated the portion of its decision regarding
§ 271(f )'s extraterritoriality.
Held: WesternGeco's award for lost profts was a permissible domestic application
of § 284 of the Patent Act. Pp. 412–417.
(a) The presumption against extraterritoriality assumes that federal
statutes “apply only within the territorial jurisdiction of the United
States.” Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285. The two-step
framework for deciding extraterritoriality questions asks, first,
“whether the presumption . . . has been rebutted.” RJR Nabisco, Inc.
v. European Community, 579 U. S. 325, 337. If not, the second step
asks “whether the case involves a domestic application of the statute.”
Ibid. Courts make the second determination by identifying “the statute's
`focus' ” and then asking whether the conduct relevant to that focus
occurred in United States territory. Ibid. If so, the case involves a
permissible domestic application of the statute. It is “usually . . . preferable”
to begin with step one, but courts have the discretion to begin
with step two “in appropriate cases.” Id., at 338, n. 5. The Court exercises
that discretion here. Pp. 412–413.
(b) When determining “the statute's `focus' ”—i. e., “the objec[t] of
[its] solicitude,” Morrison v. National Australia Bank Ltd., 561 U. S.
247, 267—the provision at issue is not analyzed in a vacuum. If it works
408 WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
Syllabus
in tandem with other provisions, it must be assessed in concert with
those provisions. Section 284, the Patent Act's general damages provision,
states that “the court shall award the claimant damages adequate
to compensate for the infringement.” The focus of that provision is
“the infringement.” The “overriding purpose” of § 284 is to “affor[d]
patent owners complete compensation” for infringements. General
Motors Corp. v. Devex Corp., 461 U. S. 648, 655. Section 271 identifes
several ways that a patent can be infringed. Thus, to determine § 284's
focus in a given case, the type of infringement that occurred must be
identifed. Here, § 271(f )(2) was the basis for WesternGeco's infringement
claim and the lost-profts damages that it received. That provision
regulates the domestic act of “suppl[ying] in or from the United
States,” and this Court has acknowledged that it vindicates domestic
interests, see, e. g., Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 457.
In sum, the focus of § 284 in a case involving infringement under
§ 271(f )(2) is on the act of exporting components from the United States.
So the conduct in this case that is relevant to the statutory focus clearly
occurred in the United States. Pp. 413–416.
(c) ION's contrary arguments are unpersuasive. The award of damages
is not the statutory focus here. The damages themselves are
merely the means by which the statute achieves its end of remedying
infringements, and the overseas events giving rise to the lost-profts
damages here were merely incidental to the infringement. In asserting
that damages awards for foreign injuries are always an extraterritorial
application of a damages provision, ION misreads a portion of RJR Nabisco
that interpreted a substantive element of a cause of action, not a
remedial damages provision. See 579 U. S., at 346. Pp. 416–417.
837 F. 3d 1358, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined.
Gorsuch, J., fled a dissenting opinion, in which, Breyer, J., joined, post,
p. 418.
Paul D. Clement argued the cause for petitioner. With
him on the briefs were Gregg F. LoCascio, John C. O'Quinn,
William H. Burgess, and Timothy K. Gilman.
Zachary D. Tripp argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Francisco, Acting Assistant Attorney
General Readler, Deputy Solicitor General Stewart,
Mark R. Freeman, and Joseph F. Busa.
Cite as: 585 U. S. 407 (2018) 409
Opinion of the Court
Kannon K. Shanmugam argued the cause for respondent.
With him on the brief were David I. Berl, Amy Mason Saharia,
Masha G. Hansford, William T. Marks, Danielle J.
Healey, and Justin M. Barnes.*
Justice Thomas delivered the opinion of the Court.
Under the Patent Act, a company can be liable for patent
infringement if it ships components of a patented invention
overseas to be assembled there. See 35 U. S. C. § 271(f)(2).
A patent owner who proves infringement under this provision
is entitled to recover damages. § 284. The question in
this case is whether these statutes allow the patent owner
to recover for lost foreign profts. We hold that they do.
I
The Patent Act gives patent owners a “civil action for infringement.”
§ 281. Section 271 outlines several types of
infringement. The general infringement provision, § 271(a),
covers most infringements that occur “within the United
States.” The subsection at issue in this case, § 271(f), “ex-
*Briefs of amici curiae urging reversal were fled for the Intellectual
Property Law Association of Chicago by Donald W. Rupert, John Linzer,
and David L. Applegate; for Power Integrations, Inc., by Alexandra
A. E. Shapiro; and for Stephen Yelderman by Rachel C. Hughey and
Mr. Yelderman, pro se.
Briefs of amici curiae urging affrmance were fled for the Electronic
Frontier Foundation et al. by Daniel K. Nazer, Charles Duan, Bernard
Chao, and Brian J. Love; and for Fairchild Semiconductor International,
Inc., et al. by Kathleen M. Sullivan, Cleland B. Welton II, and Derek
L. Shaffer.
Briefs of amici curiae were fled for the American Intellectual Property
Law Association by David W. Long; for the Houston Intellectual Property
Law Association by Iftikhar Ahmed; for Intellectual Property Law Scholars
by Sarah M. Shalf, Timothy R. Holbrook, and David Hricik; for the
Intellectual Property Owners Association by D. Bartley Eppenauer, Kyle
E. Friesen, Steven W. Miller, and Mark W. Lauroesch; and for the New
York Intellectual Property Law Association by Irena Royzman, Jordan
M. Engelhardt, Jonathan D. Schenker, and Robert J. Rando.
410 WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
Opinion of the Court
pands the defnition of infringement to include supplying
from the United States a patented invention's components.”
Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 444–445 (2007).
It contains two provisions that “work in tandem” by addressing
“different scenarios.” Life Technologies Corp. v. Promega
Corp., 580 U. S. 140, 150 (2017). Section 271(f)(1) addresses
the act of exporting a substantial portion of an
invention's components:
“Whoever without authority supplies or causes to be
supplied in or from the United States all or a substantial
portion of the components of a patented invention,
where such components are uncombined in whole or in
part, in such manner as to actively induce the combination
of such components outside of the United States in
a manner that would infringe the patent if such combination
occurred within the United States, shall be liable as
an infringer.”
Section 271(f)(2), the provision at issue here, addresses the
act of exporting components that are specially adapted for
an invention:
“Whoever without authority supplies or causes to be
supplied in or from the United States any component of
a patented invention that is especially made or especially
adapted for use in the invention and not a staple
article or commodity of commerce suitable for substantial
noninfringing use, where such component is uncombined
in whole or in part, knowing that such component
is so made or adapted and intending that such component
will be combined outside of the United States in a
manner that would infringe the patent if such combination
occurred within the United States, shall be liable as
an infringer.”
Patent owners who prove infringement under § 271 are entitled
to relief under § 284, which authorizes “damages adequate
to compensate for the infringement, but in no event
Cite as: 585 U. S. 407 (2018) 411
Opinion of the Court
less than a reasonable royalty for the use made of the invention
by the infringer.”
II
Petitioner WesternGeco LLC owns four patents relating
to a system that it developed for surveying the ocean foor.
The system uses lateral-steering technology to produce
higher quality data than previous survey systems. WesternGeco
does not sell its technology or license it to competitors.
Instead, it uses the technology itself, performing
surveys for oil and gas companies. For several years,
WesternGeco was the only surveyor that used such lateralsteering
technology.
In late 2007, respondent ION Geophysical Corporation
began selling a competing system. It manufactured the
components for its competing system in the United States
and then shipped them to companies abroad. Those companies
combined the components to create a surveying system
indistinguishable from WesternGeco's and used the system
to compete with WesternGeco.
WesternGeco sued for patent infringement under
§§ 271(f)(1) and (f)(2). At trial, WesternGeco proved that it
had lost 10 specifc survey contracts due to ION's infringement.
The jury found ION liable and awarded WesternGeco
damages of $12.5 million in royalties and $93.4 million in lost
profts. ION fled a post-trial motion to set aside the verdict,
arguing that WesternGeco could not recover damages
for lost profts because § 271(f) does not apply extraterritorially.
The District Court denied the motion. 953 F. Supp.
2d 731, 755–756 (SD Tex. 2013).
On appeal, the Court of Appeals for the Federal Circuit
reversed the award of lost-profts damages. WesternGeco
LLC v. ION Geophysical Corp., 791 F. 3d 1340, 1343 (2015).1
1 The Federal Circuit held that ION was liable for infringement under
§ 271(f )(2). WesternGeco, 791 F. 3d, at 1347–1349. It did not address
whether ION was liable under § 271(f )(1). Id., at 1348.
412 WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
Opinion of the Court
The Federal Circuit had previously held that § 271(a), the
general infringement provision, does not allow patent owners
to recover for lost foreign sales. See id., at 1350–1351
(citing Power Integrations, Inc. v. Fairchild Semiconductor
Int'l, Inc., 711 F. 3d 1348 (CA Fed. 2013)). Section 271(f)
should be interpreted the same way, the Federal Circuit reasoned,
because it was “designed” to put patent infringers “in
a similar position.” WesternGeco, 791 F. 3d, at 1351. Judge
Wallach dissented. See id., at 1354–1364. WesternGeco
petitioned for review in this Court. We granted the petition,
vacated the Federal Circuit's judgment, and remanded
for further consideration in light of our decision in Halo
Electronics, Inc. v. Pulse Electronics, Inc., 579 U. S. 93
(2016). WesternGeco LLC v. ION Geophysical Corp., 579
U. S. 915 (2016).
On remand, the panel majority reinstated the portion of
its decision regarding the extraterritoriality of § 271(f). 837
F. 3d 1358, 1361, 1364 (CA Fed. 2016). Judge Wallach dissented
again, id., at 1364–1369, and we granted certiorari
again, 583 U. S. 1089 (2018). We now reverse.
III
Courts presume that federal statutes “apply only within
the territorial jurisdiction of the United States.” Foley
Bros., Inc. v. Filardo, 336 U. S. 281, 285 (1949). This principle,
commonly called the presumption against extraterritoriality,
has deep roots. See A. Scalia & B. Garner, Reading
Law: The Interpretation of Legal Texts § 43, p. 268 (2012)
(tracing it to the medieval maxim Statuta suo clauduntur
territorio, nec ultra territorium disponunt); e. g., United
States v. Palmer, 3 Wheat. 610, 631 (1818) (Marshall, C. J.)
(“[G]eneral words must . . . be limited to cases within the
jurisdiction of the state”). The presumption rests on “the
commonsense notion that Congress generally legislates with
domestic concerns in mind.” Smith v. United States, 507
U. S. 197, 204, n. 5 (1993). And it prevents “unintended
clashes between our laws and those of other nations which
Cite as: 585 U. S. 407 (2018) 413
Opinion of the Court
could result in international discord.” EEOC v. Arabian
American Oil Co., 499 U. S. 244, 248 (1991).
This Court has established a two-step framework for deciding
questions of extraterritoriality. The frst step asks
“whether the presumption against extraterritoriality has
been rebutted.” RJR Nabisco, Inc. v. European Community,
579 U. S. 325, 337 (2016). It can be rebutted only if
the text provides a “clear indication of an extraterritorial
application.” Morrison v. National Australia Bank Ltd.,
561 U. S. 247, 255 (2010). If the presumption against extraterritoriality
has not been rebutted, the second step of our
framework asks “whether the case involves a domestic application
of the statute.” RJR Nabisco, 579 U. S., at 337.
Courts make this determination by identifying “the statute's
`focus' ” and asking whether the conduct relevant to that
focus occurred in United States territory. Ibid. If it did,
then the case involves a permissible domestic application of
the statute. See ibid.
We resolve this case at step two. While “it will usually
be preferable” to begin with step one, courts have the discretion
to begin at step two “in appropriate cases.” Id., at
338, n. 5 (citing Pearson v. Callahan, 555 U. S. 223, 236–
243 (2009)). One reason to exercise that discretion is if addressing
step one would require resolving “diffcult questions”
that do not change “the outcome of the case,” but
could have far-reaching effects in future cases. See id., at
236–237. That is true here. WesternGeco argues that the
presumption against extraterritoriality should never apply
to statutes, such as § 284, that merely provide a general damages
remedy for conduct that Congress has declared unlawful.
Resolving that question could implicate many other
statutes besides the Patent Act. We therefore exercise our
discretion to forgo the frst step of our extraterritoriality
framework.
A
Under the second step of our framework, we must identify
“the statute's `focus.' ” RJR Nabisco, supra, at 337. The
414 WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
Opinion of the Court
focus of a statute is “the objec[t] of [its] solicitude,” which
can include the conduct it “seeks to `regulate,' ” as well as
the parties and interests it “seeks to `protec[t]' ” or vindicate.
Morrison, supra, at 267 (quoting Superintendent of Ins. of
N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6, 12, 10
(1971)). “If the conduct relevant to the statute's focus occurred
in the United States, then the case involves a permissible
domestic application” of the statute, “even if other conduct
occurred abroad.” RJR Nabisco, 579 U. S., at 337.
But if the relevant conduct occurred in another country,
“then the case involves an impermissible extraterritorial application
regardless of any other conduct that occurred in
U. S. territory.” Ibid.
When determining the focus of a statute, we do not analyze
the provision at issue in a vacuum. See Morrison,
supra, at 267–269. If the statutory provision at issue works
in tandem with other provisions, it must be assessed in concert
with those other provisions. Otherwise, it would be
impossible to accurately determine whether the application
of the statute in the case is a “domestic application.” RJR
Nabisco, 579 U. S., at 337. And determining how the statute
has actually been applied is the whole point of the focus test.
See ibid.
Applying these principles here, we conclude that the conduct
relevant to the statutory focus in this case is domestic.
We begin with § 284. It provides a general damages remedy
for the various types of patent infringement identifed in the
Patent Act. The portion of § 284 at issue here states that
“the court shall award the claimant damages adequate to
compensate for the infringement.” We conclude that “the
infringement” is the focus of this statute. As this Court has
explained, the “overriding purpose” of § 284 is to “affor[d]
patent owners complete compensation” for infringements.
General Motors Corp. v. Devex Corp., 461 U. S. 648, 655
(1983). “The question” posed by the statute is “ `how much
ha[s] the Patent Holder . . . suffered by the infringement.' ”
Cite as: 585 U. S. 407 (2018) 415
Opinion of the Court
Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U. S.
476, 507 (1964). Accordingly, the infringement is plainly the
focus of § 284.
But that observation does not fully resolve this case, as
the Patent Act identifes several ways that a patent can be
infringed. See § 271. To determine the focus of § 284 in a
given case, we must look to the type of infringement that
occurred. We thus turn to § 271(f )(2), which was the basis
for WesternGeco's infringement claim and the lost-profts
damages that it received.2
Section 271(f)(2) focuses on domestic conduct. It provides
that a company “shall be liable as an infringer” if it “supplies”
certain components of a patented invention “in or from
the United States” with the intent that they “will be combined
outside of the United States in a manner that would
infringe the patent if such combination occurred within the
United States.” The conduct that § 271(f)(2) regulates—i. e.,
its focus—is the domestic act of “suppl[ying] in or from the
United States.” As this Court has acknowledged, § 271(f)
vindicates domestic interests: It “was a direct response to a
gap in our patent law,” Microsoft Corp., 550 U. S., at 457, and
“reach[es] components that are manufactured in the United
States but assembled overseas,” Life Technologies, 580 U. S.,
at 151. As the Federal Circuit explained, § 271(f)(2) protects
against “domestic entities who export components . . .
from the United States.” WesternGeco, 791 F. 3d, at 1351.
In sum, the focus of § 284, in a case involving infringement
under § 271(f)(2), is on the act of exporting components from
the United States. In other words, the domestic infringement
is “the objec[t] of the statute's solicitude” in this context.
Morrison, supra, at 267. The conduct in this case
that is relevant to that focus clearly occurred in the United
States, as it was ION's domestic act of supplying the components
that infringed WesternGeco's patents. Thus, the lost-
2 Because the Federal Circuit did not address § 271(f )(1), see n. 1, supra,
we limit our analysis to § 271(f )(2).
416 WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
Opinion of the Court
profts damages that were awarded to WesternGeco were a
domestic application of § 284.
B
ION's arguments to the contrary are not persuasive. ION
contends that the statutory focus here is “self-evidently on
the award of damages.” Brief for Respondent 22. While
§ 284 does authorize damages, what a statute authorizes is
not necessarily its focus. Rather, the focus is “the objec[t]
of the statute's solicitude”—which can turn on the “conduct,”
“parties,” or interests that it regulates or protects. Morrison,
561 U. S., at 267. Here, the damages themselves are
merely the means by which the statute achieves its end of
remedying infringements. Similarly, ION is mistaken to assert
that this case involves an extraterritorial application of
§ 284 simply because “lost-profts damages occurred extraterritorially,
and foreign conduct subsequent to [ION's] infringement
was necessary to give rise to the injury.” Brief
for Respondent 22. Those overseas events were merely incidental
to the infringement. In other words, they do not
have “primacy” for purposes of the extraterritoriality analysis.
Morrison, supra, at 267.
ION also draws on the conclusion in RJR Nabisco that
“RICO damages claims” based “entirely on injury suffered
abroad” involve an extraterritorial application of 18 U. S. C.
§ 1964(c). 579 U. S., at 354. From this principle, ION extrapolates
a general rule that damages awards for foreign
injuries are always an extraterritorial application of a damages
provision. This argument misreads RJR Nabisco.
That portion of RJR Nabisco interpreted a substantive element
of a cause of action, not a remedial damages provision.
See id., at 346. It explained that a plaintiff could not bring
a damages claim under § 1964(c) unless he could prove that
he was “ `injured in his business or property,' ” which required
proof of “a domestic injury.” Ibid. Thus, RJR NaCite
as: 585 U. S. 407 (2018) 417
Opinion of the Court
bisco was applying the presumption against extraterritoriality
to interpret the scope of § 1964(c)'s injury requirement;
it did not make any statements about damages—a separate
legal concept.
Two of our colleagues contend that the Patent Act does
not permit damages awards for lost foreign profts. Post, at
418 (Gorsuch, J., joined by Breyer, J., dissenting). Their
position wrongly confates legal injury with the damages
arising from that injury. See post, at 418–420. And it is
not the better reading of “the plain text of the Patent Act.”
Post, at 425. Taken together, § 271(f)(2) and § 284 allow the
patent owner to recover for lost foreign profts. Under
§ 284, damages are “adequate” to compensate for infringement
when they “plac[e the patent owner] in as good a position
as he would have been in” if the patent had not been
infringed. General Motors Corp., 461 U. S., at 655. Specifcally,
a patent owner is entitled to recover “ `the difference
between [its] pecuniary condition after the infringement,
and what [its] condition would have been if the
infringement had not occurred.' ” Aro Mfg. Co., 377 U. S.,
at 507. This recovery can include lost profts. See Yale
Lock Mfg. Co. v. Sargent, 117 U. S. 536, 552–553 (1886).
And, as we hold today, it can include lost foreign profts when
the patent owner proves infringement under § 271(f)(2).3
* * *
We hold that WesternGeco's damages award for lost profts
was a permissible domestic application of § 284. The judgment
of the Federal Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
3 In reaching this holding, we do not address the extent to which other
doctrines, such as proximate cause, could limit or preclude damages in
particular cases.
418 WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
Gorsuch, J., dissenting
Justice Gorsuch, with whom Justice Breyer joins,
dissenting.
The Court holds that WesternGeco's lost profts claim does
not offend the judicially created presumption against the extraterritorial
application of statutes. With that much, I
agree. But I cannot subscribe to the Court's further holding
that the terms of the Patent Act permit awards of this kind.
In my view the Act's terms prohibit the lost profts sought
in this case, whatever the general presumption against extraterritoriality
applicable to all statutes might allow. So
while the Federal Circuit may have relied in part on a mistaken
extraterritoriality analysis, I respectfully submit it
reached the right result in concluding that the Patent Act
forecloses WesternGeco's claim for lost profts.
The reason is straightforward. A U. S. patent provides a
lawful monopoly over the manufacture, use, and sale of an
invention within this country only. Meanwhile, Western-
Geco seeks lost profts for uses of its invention beyond our
borders. Specifcally, the company complains that it lost lucrative
foreign surveying contracts because ION's customers
used its invention overseas to steal that business. In measuring
its damages, WesternGeco assumes it could have
charged monopoly rents abroad premised on a U. S. patent
that has no legal force there. Permitting damages of this
sort would effectively allow U. S. patent owners to use
American courts to extend their monopolies to foreign markets.
That, in turn, would invite other countries to use their
own patent laws and courts to assert control over our economy.
Nothing in the terms of the Patent Act supports that
result and much militates against it.
Start with the key statutory language. Under the Patent
Act, a patent owner enjoys “the right to exclude others from
making, using, offering for sale, or selling the invention
throughout the United States.” 35 U. S. C. § 154(a)(1) (emphasis
added). Emphasizing the point, the Act proceeds to
explain that to “infring[e] the patent” someone must “withCite
as: 585 U. S. 407 (2018) 419
Gorsuch, J., dissenting
out authority mak[e], us[e], offe[r] to sell, or sel[l] [the] patented
invention, within the United States.” § 271(a) (emphasis
added). So making, using, or selling a patented
invention inside the United States invites a claim for infringement.
But those same acts outside the United States
do not infringe a U. S. patent right.
These principles work their way into the statutory measure
of damages too. A patent owner who proves infringement
is entitled to receive “damages adequate to compensate
for the infringement.” § 284 (emphasis added). Because an
infringement must occur within the United States, that
means a plaintiff can recover damages for the making, using,
or selling of its invention within the United States, but not
for the making, using, or selling of its invention elsewhere.
What's the upshot for our case? The jury was free to
award WesternGeco royalties for the infringing products
ION produced in this country; indeed, ION has not challenged
that award either here or before the Federal Circuit.
If ION's infringement had cost WesternGeco sales in this
country, it could have recovered for that harm too. At the
same time, WesternGeco is not entitled to lost profts caused
by the use of its invention outside the United States. That
foreign conduct isn't “infringement” and so under § 284's
plain terms isn't a proper basis for awarding “compensat[
ion].” No doubt WesternGeco thinks it unfair that its invention
was used to compete against it overseas. But that's
simply not the kind of harm for which our patent laws provide
compensation because a U. S. patent does not protect
its owner from competition beyond our borders.
This Court's precedents confrm what the statutory text
indicates. In Brown v. Duchesne, 19 How. 183 (1857), the
Court considered whether the use of an American invention
on the high seas could support a damages claim under the
U. S. patent laws. It said no. The Court explained that
“the use of [an invention] outside of the jurisdiction of the
United States is not an infringement of [the patent owner's]
420 WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
Gorsuch, J., dissenting
rights,” and so the patent owner “has no claim to any compensation
for” that foreign use. Id., at 195–196. A defendant
must “compensate the patentee,” the Court continued,
only to the extent that it has “com[e] in competition with the
[patent owner] where the [patent owner] was entitled to the
exclusive use” of his invention—namely, within the United
States. Id., at 196. What held true there must hold true
here. ION must compensate WesternGeco for its intrusion
on WesternGeco's exclusive right to make, use, and sell its
invention in the United States. But WesternGeco “has no
claim to any compensation for” noninfringing uses of its invention
“outside of the jurisdiction of the United States.”
Id., at 195–196.1
Other precedents offer similar teachings. In Birdsall v.
Coolidge, 93 U. S. 64 (1876), the Court explained that damages
are supposed to compensate a patent owner for “the
unlawful acts of the defendant.” Ibid. To that end, the
Court held, damages “shall be precisely commensurate with
the injury suffered, neither more nor less.” Ibid. (emphasis
added). It's undisputed that the only injury WesternGeco
suffered here came from ION's infringing activity within the
United States. A damages award that sweeps much more
broadly to cover third parties' noninfringing foreign uses can
hardly be called “precisely commensurate” with that injury.
1 The Solicitor General disputes this reading of Duchesne. In his view,
the Court indicated that, if a defendant “committed domestic infringement”
by making the invention in the United States, the patent owner
would have been entitled to recover for any subsequent use of the invention,
including “ `the use of this improvement . . . on the high seas.' ” Brief
for United States as Amicus Curiae 17 (quoting Duchesne, 19 How., at
196). I am unpersuaded. The Court proceeded to explain that the “only
use” of the invention that might require compensation was “in navigating
the vessel into and out of [Boston] harbor, . . . while she was within the
jurisdiction of the United States.” Id., at 196 (emphasis added). With
respect to uses outside the United States, the Court made clear that “compensation”
was unavailable. Id., at 195–196. Tellingly, WesternGeco
does not adopt the Solicitor General's reading of Duchesne—or even cite
the case.
Cite as: 585 U. S. 407 (2018) 421
Gorsuch, J., dissenting
This Court's leading case on lost proft damages points the
same way. In Yale Lock Mfg. Co. v. Sargent, 117 U. S. 536
(1886), the patent owner “availed himself of his exclusive
right by keeping his patent a monopoly” and selling the invention
himself. Id., at 552. As damages for a competitor's
infringement of the patent, the patent owner could recover
“the difference between his pecuniary condition after the infringement,
and what his condition would have been if the
infringement had not occurred.” Ibid. And that difference,
the Court held, “is to be measured” by the additional
profts the patent owner “would have realized from such
sales if the infringement had not interfered with such monopoly.”
Id., at 552–553. So, again, the Court tied the
measure of damages to the degree of interference with the
patent owner's exclusive right to make, use, and sell its invention.
And, again, that much is missing here because foreign
uses of WesternGeco's invention could not have interfered
with its U. S. patent monopoly.2
You might wonder whether § 271(f)(2) calls for a special
exception to these general principles. WesternGeco certainly
thinks it does. It's true, too, that § 271(f)(2) expressly
refers to foreign conduct. The statute says that someone
who exports a specialized component, “intending that [it] will
be combined outside of the United States in a manner that
2 WesternGeco claims this Court permitted recovery based on foreign
sales of an invention in Manufacturing Co. v. Cowing, 105 U. S. 253 (1882),
but the Court never mentioned, much less decided, the issue. It merely
observed, in passing, that the only markets for the invention at issue were
“the oil-producing regions of Pennsylvania and Canada.” Id., at 256.
The Court did not even say whether the Canada-bound products were
actually sold in Canada (as opposed, say, to Canadian buyers in the United
States). Meanwhile, in Dowagiac Mfg. Co. v. Minnesota Moline Plow Co.,
235 U. S. 641 (1915), the Court rejected “recovery of either profts or damages”
for products sold in Canada. Id., at 650. And while it distinguished
Cowing on the ground that the defendants there had made the
infringing articles in the United States, that hardly elevated Cowing's
failure to address the foreign sales issue into a reasoned decision on the
question.
422 WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
Gorsuch, J., dissenting
would infringe the patent if such combination occurred
within the United States, shall be liable as an infringer.”
From this language, you might wonder whether § 271(f)(2)
seeks to protect patent owners from the foreign conduct that
occurred in this case.
It does not. Section 271(f)(2) modifes the circumstances
when the law will treat an invention as having been made
within the United States. It permits an infringement
claim—and the damages that come with it—not only when
someone produces the complete invention in this country for
export, but also when someone exports key components of
the invention for assembly abroad. A person who ships
components from the United States intending they be assembled
across the border is “liable” to the patent owner for
royalties and lost profts the same as if he made the entire
invention here. § 271(f)(2). But none of this changes the
bedrock rule that foreign uses of an invention (even an invention
made in this country) do not infringe a U. S. patent.
Nor could it. For after § 271(f)(2)'s adoption, as before, patent
rights exclude others from making, using, and selling an
invention only “throughout the United States.” § 154(a)(1).
The history of the statute underscores the point. In
Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518
(1972), the Court held that a defendant did not “make” an
invention within the United States when it produced the invention's
components here but sold them to foreign buyers
for fnal assembly abroad. Id., at 527–528. The Court recognized
that, if the defendant had assembled the parts in this
country and then sold them to the foreign buyers, it would
have unlawfully made and sold the invention within the
United States. Id., at 527. But because what it made and
sold in this country “fell short” of the complete invention,
the Court held, the patent laws did not prohibit its conduct.
Ibid. The dissent, by contrast, argued that for all practical
purposes the invention “was made in the United States”
since “everything was accomplished in this country except
putting the pieces together.” Id., at 533 (opinion of BlackCite
as: 585 U. S. 407 (2018) 423
Gorsuch, J., dissenting
mun, J.). Apparently Congress agreed, for it then added
§ 271(f)(2) and made clear that someone who almost makes
an invention in this country may be held liable as if he made
the complete invention in this country. As the Solicitor
General has explained, the new statute “effectively treat[ed]
the domestic supply of the components of a patented invention
for assembly abroad as tantamount to the domestic
manufacture of the completed invention for export.” Brief
for United States as Amicus Curiae 22 (emphasis added).
Section 271(f)(2) thus expands what qualifes as making an
invention in this country but does nothing to suggest that
U. S. patents protect against—much less guarantee compensation
for—uses abroad.
Any suggestion that § 271(f)(2) provides protection against
foreign uses would also invite anomalous results. It would
allow greater recovery when a defendant exports a component
of an invention in violation of § 271(f)(2) than when
a defendant exports the entire invention in violation of
§ 271(a). And it would threaten to “ `conver[t] a single act of
supply from the United States into a springboard for liability.'
” Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 456
(2007). Here, for example, supplying a single infringing
product from the United States would make ION responsible
for any foreseeable harm its customers cause by using the
product to compete against WesternGeco worldwide, even
though WesternGeco's U. S. patent doesn't protect it from
such competition. It's some springboard, too. The harm
fowing from foreign uses in this case appears to outstrip
wildly the harm inficted by ION's domestic production: The
jury awarded $93.4 million in lost profts from uses in 10
foreign surveys but only $12.5 million in royalties for 2,500
U. S.-made products.
Even more dramatic examples are not hard to imagine.
Suppose a company develops a prototype microchip in a U. S.
lab with the intention of manufacturing and selling the chip
in a foreign country as part of a new smartphone. Suppose
too that the chip infringes a U. S. patent and that the patent
424 WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
Gorsuch, J., dissenting
owner sells its own phone with its own chip overseas.
Under the terms of the Patent Act, the developer commits
an act of infringement by creating the prototype here, but
the additional chips it makes and sells outside the United
States do not qualify as infringement. Under Western-
Geco's approach, however, the patent owner could recover
any profts it lost to that foreign competition—or even three
times as much, see § 284—effectively giving the patent
owner a monopoly over foreign markets through its U. S.
patent. That's a very odd role for U. S. patent law to play
in foreign markets, as “foreign law alone, not United States
law,” is supposed to govern the manufacture, use, and sale
“of patented inventions in foreign countries.” Microsoft,
supra, at 456.
Worse yet, the tables easily could be turned. If our
courts award compensation to U. S. patent owners for foreign
uses where our patents don't run, what happens when
foreign courts return the favor? Suppose our hypothetical
microchip developer infringed a foreign patent in the course
of developing its new chip abroad, but then mass produced
and sold the chip in the United States. A foreign court
might reasonably hold the U. S. company liable for infringing
the foreign patent in the foreign country. But if it followed
WesternGeco's theory, the court might then award monopoly
rent damages refecting a right to control the market for the
chip in this country—even though the foreign patent lacks
any legal force here. It is doubtful Congress would accept
that kind of foreign “control over our markets.” Deepsouth,
supra, at 531. And principles of comity counsel against an
interpretation of our patent laws that would interfere so dramatically
with the rights of other nations to regulate their
own economies. While Congress may seek to extend U. S.
patent rights beyond our borders if it chooses, cf. § 105 (addressing
inventions made, used, and sold in outer space),
nothing in the Patent Act fairly suggests that it has taken
that step here.
Cite as: 585 U. S. 407 (2018) 425
Gorsuch, J., dissenting
Today's decision unfortunately forecloses further consideration
of these points. Although its opinion focuses almost
entirely on why the presumption against extraterritoriality
applicable to all statutes does not forbid the damages sought
here, the Court asserts in a few cursory sentences that the
Patent Act by its terms allows recovery for foreign uses in
cases like this. See ante, at 417. In doing so, the Court does
not address the textual or doctrinal analysis offered here.
It does not explain why “damages adequate to compensate
for the infringement” should include damages for harm from
noninfringing uses. § 284 (emphasis added). It does not
try to reconcile its holding with the teachings of Duchesne,
Birdsall, and Yale Lock. And it ignores Microsoft's admonition
that § 271(f)(2) should not be read to create springboards
for liability based on foreign conduct. Instead, the
Court relies on two cases that do not come close to supporting
its broad holding. In General Motors Corp. v. Devex
Corp., 461 U. S. 648 (1983), the Court held that prejudgment
interest should normally be awarded so as to place the patent
owner “in as good a position as [it] would have been in
had the infringer” not infringed. Id., at 655. Allowing recovery
for foreign uses, however, puts the patent owner in a
better position than it was before by allowing it to demand
monopoly rents outside the United States as well as within.
In Aro Mfg. Co. v. Convertible Top Replacement Co., 377
U. S. 476 (1964), meanwhile, the Court simply applied Yale
Lock's rule that a patent owner may recover “ `the difference
between his pecuniary condition after the infringement, and
what his condition would have been if the infringement had
not occurred.' ” 377 U. S., at 507 (quoting Yale Lock, 117
U. S., at 552). As we've seen, that test seeks to measure the
interference with the patent owner's lawful monopoly over
U. S. markets alone.
By failing to heed the plain text of the Patent Act and the
lessons of our precedents, the Court ends up assuming that
patent damages run (literally) to the ends of the earth. It
426 WESTERNGECO LLC v. ION GEOPHYSICAL CORP.
Gorsuch, J., dissenting
allows U. S. patent owners to extend their patent monopolies
far beyond anything Congress has authorized and shields
them from foreign competition U. S. patents were never
meant to reach. Because I cannot agree that the Patent Act
requires that result, I respectfully dissent.
OCTOBER TERM, 2017 427
Syllabus
ORTIZ v. UNITED STATES
certiorari to the united states court of appeals for
the armed forces
No. 16–1423. Argued January 16, 2018—Decided June 22, 2018
Congress has long provided for specialized military courts to adjudicate
charges against service members. Today, courts-martial hear cases involving
crimes unconnected with military service. They are also subject
to several tiers of appellate review, and thus are part of an integrated
“court-martial system” that resembles civilian structures of
justice. That system begins with the court-martial itself, a tribunal
that determines guilt or innocence and levies punishment, up to lifetime
imprisonment or execution. The next phase occurs at one of four appellate
courts: the Court of Criminal Appeals (CCA) for the Army, Navy-
Marine Corps, Air Force, or Coast Guard. They review decisions
where the sentence is a punitive discharge, incarceration for more than
one year, or death. The Court of Appeals for the Armed Forces
(CAAF) sits atop the court-martial system. The CAAF is a “court of
record” composed of fve civilian judges, 10 U. S. C. § 941, which must
review certain weighty cases and may review others. Finally, 28
U. S. C. § 1259 gives this Court jurisdiction to review the CAAF's decisions
by writ of certiorari.
Petitioner Keanu Ortiz, an Airman First Class, was convicted by a
court-martial of possessing and distributing child pornography, and he
was sentenced to two years' imprisonment and a dishonorable discharge.
An Air Force CCA panel, including Colonel Martin Mitchell, affrmed
that decision. The CAAF then granted Ortiz's petition for review to
consider whether Judge Mitchell was disqualifed from serving on the
CCA because he had been appointed to the Court of Military Commission
Review (CMCR). The Secretary of Defense had initially put Judge
Mitchell on the CMCR under his statutory authority to “assign [offcers]
who are appellate military judges” to serve on that court. 10 U. S. C.
§ 950f(b)(2). To moot a possible constitutional problem with the assignment,
the President (with the Senate's advice and consent) also appointed
Judge Mitchell to the CMCR pursuant to § 950f(b)(3). Shortly
thereafter, Judge Mitchell participated in Ortiz's CCA appeal.
Ortiz claimed that Judge Mitchell's CMCR appointment barred his
continued CCA service under both a statute and the Constitution.
First, he argued that the appointment violated § 973(b)(2)(A), which
provides that unless “otherwise authorized by law,” an active-duty
428 ORTIZ v. UNITED STATES
Syllabus
military offcer “may not hold, or exercise the functions of,” certain
“civil office[s]” in the Federal Government. Second, he argued that
the Appointments Clause prohibits simultaneous service on the CMCR
and the CCA. The CAAF rejected both grounds for ordering another
appeal.
Held:
1. This Court has jurisdiction to review the CAAF's decisions. The
judicial character and constitutional pedigree of the court-martial system
enable this Court, in exercising appellate jurisdiction, to review the
decisions of the court sitting at its apex.
An amicus curiae, Professor Aditya Bamzai, argues that cases decided
by the CAAF do not fall within Article III's grant of appellate
jurisdiction to this Court. In Marbury v. Madison, 1 Cranch 137, Chief
Justice Marshall explained that “the essential criterion of appellate
jurisdiction” is “that it revises and corrects the proceedings in a cause
already instituted, and does not create that cause.” Id., at 175. Here,
Ortiz's petition asks the Court to “revise and correct” the latest decision
in a “cause” that began in and progressed through military justice “proceedings.”
Unless Chief Justice Marshall's test implicitly exempts
cases instituted in a military court, the case is now appellate.
There is no reason to make that distinction. The military justice system's
essential character is judicial. Military courts decide cases in
strict accordance with a body of federal law and afford virtually the
same procedural protections to service members as those given in a
civilian criminal proceeding. The judgments a military tribunal renders
“rest on the same basis, and are surrounded by the same considerations[,
as] give conclusiveness to the judgments of other legal tribunals.”
Ex parte Reed, 100 U. S. 13, 23. Accordingly, such judgments have res
judicata and Double Jeopardy effect. The jurisdiction and structure of
the court-martial system likewise resemble those of other courts whose
decisions this Court reviews. Courts-martial try service members for
garden-variety crimes unrelated to military service, and can impose
terms of imprisonment and capital punishment. Their decisions are
also subject to an appellate process similar to the one found in most
States. And just as important, the constitutional foundation of courtsmartial
is not in the least insecure. See Dynes v. Hoover, 20 How. 65,
79. The court-martial is older than the Constitution, was recognized
and sanctioned by the Framers, and has been authorized here since the
frst Congress. Throughout that history, courts-martial have operated
as instruments of military justice, not mere military command. They
are bound, like any court, by the fundamental principles of law and the
duty to adjudicate cases without partiality.
Cite as: 585 U. S. 427 (2018) 429
Syllabus
Bamzai argues that the Court lacks jurisdiction because the CAAF is
not an Article III court, but is instead in the Executive Branch. This
Court's appellate jurisdiction, however, covers more than the decisions
of Article III courts. This Court can review proceedings of state
courts. See Martin v. Hunter's Lessee, 1 Wheat. 304. It can also review
certain non-Article III judicial systems created by Congress. In
particular, the Court has upheld its exercise of appellate jurisdiction
over decisions of non-Article III territorial courts, see United States v.
Coe, 155 U. S. 76, and it has uncontroversially exercised appellate jurisdiction
over non-Article III District of Columbia courts, see Palmore v.
United States, 411 U. S. 389. The non-Article III court-martial system
stands on much the same footing as territorial and D. C. courts. All
three rest on an expansive constitutional delegation, have deep historical
roots, and perform an inherently judicial role. Thus, in Palmore,
this Court viewed the military, territories, and District as “specialized
areas having particularized needs” in which Article III “give[s] way to
accommodate plenary grants of power to Congress.” Id., at 408.
Bamzai does not provide a suffcient reason to divorce military courts
from territorial and D. C. courts when it comes to defning this Court's
appellate jurisdiction. He frst relies on the fact that territorial and
D. C. courts exercise power over discrete geographic areas, while
military courts do not. But this distinction does not matter to the jurisdictional
inquiry. His second argument focuses on the fact that the
CAAF is in the Executive Branch. In his view, two of the Court's
precedents—Ex parte Vallandigham, 1 Wall. 243, and Marbury, 1
Cranch 137—show that the Court may never accept appellate jurisdiction
from any person or body within that branch. As to Vallandigham,
that case goes to show only that not every military tribunal is alike.
Unlike the military commission in Vallandigham, which lacked “judicial
character,” 1 Wall., at 253, the CAAF is a permanent court of record
established by Congress, and its decisions are fnal unless the Court
reviews and reverses them. As to Marbury, James Madison's failure to
transmit William Marbury's commission was not a judicial decision by a
court. Here, by contrast, three constitutionally rooted courts rendered
inherently judicial decisions. Pp. 435–448.
2. Judge Mitchell's simultaneous service on the CCA and the
CMCR violated neither § 973(b)(2)(A) nor the Appointments Clause.
Pp. 448–454.
(a) The statutory issue turns on two interlocking provisions. Section
973(b)(2)(A) is the statute that Ortiz claims was violated here. It
prohibits military offcers from “hold[ing], or exercis[ing] the functions
of,” certain “civil offce[s]” in the Federal Government, “[e]xcept as otherwise
authorized by law.” Section 950f(b) is the statute that the Govern430
ORTIZ v. UNITED STATES
Syllabus
ment claims “otherwise authorize[s]” Judge Mitchell's CMCR service,
even if a seat on that court is a covered “civil offce.” It provides two
ways to become a CMCR judge. Under § 950f(b)(2), the Secretary of
Defense “may assign” qualifed offcers serving on a CCA to be judges
on the CMCR. Under § 950f(b)(3), the President (with the Senate's advice
and consent) “may appoint” persons—whether offcers or civilians
is unspecifed—to CMCR judgeships.
Ortiz argues that Judge Mitchell was not “authorized by law” to serve
on the CMCR after his appointment because § 950f(b)(3) makes no express
reference to military offcers. In the circumstances here, however,
the express authorization to assign military offcers to the CMCR
under § 950f(b)(2) was the only thing necessary to exempt Judge Mitchell
from § 973(b)(2)(A). Once the Secretary of Defense placed Judge
Mitchell on the CMCR pursuant to § 950f(b)(2), the President's later appointment
made no difference. It did not negate the Secretary's earlier
action, but rather ratifed what the Secretary had already done. Thus,
after the appointment, Judge Mitchell served on the CMCR by virtue of
both the Secretary's assignment and the President's appointment. And
because § 950f(b)(2) expressly authorized the Secretary's assignment,
Judge Mitchell's CMCR service could not run afoul of § 973(b)(2)(A)'s
general rule. Pp. 449–452.
(b) Ortiz also raises an Appointments Clause challenge to Judge
Mitchell's simultaneous service on the CCA and the CMCR. That
Clause distinguishes between principal offcers and inferior offcers.
CCA judges are inferior offcers. Ortiz views CMCR judges as principal
offcers. And Ortiz argues that, under the Appointments Clause, a
single judge cannot serve as an inferior offcer on one court and a principal
offcer on another. But the Court has never read the Appointments
Clause to impose rules about dual service, separate and distinct from
methods of appointment. And if the Court were ever to apply the
Clause to dual offce-holding, it would not start here. Ortiz does not
show how Judge Mitchell's CMCR service would result in “undue infuence”
on his CCA colleagues. Pp. 452–454.
76 M. J. 125 and 189, affrmed.
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor, JJ., joined.
Thomas, J., fled a concurring opinion, post, p. 454. Alito, J., fled a dissenting
opinion, in which Gorsuch, J., joined, post, p. 463.
Stephen I. Vladeck argued the cause for petitioner. With
him on the briefs were Mary J. Bradley, Christopher D. CarCite
as: 585 U. S. 427 (2018) 431
Opinion of the Court
rier, Brian L. Mizer, Johnathan D. Legg, Lauren-Ann L.
Shure, and Eugene R. Fidell.
Aditya Bamzai, pro se, argued the cause as amicus curiae
in support of neither party. With him on the brief was
Adam J. White.
Brian H. Fletcher argued the cause for the United States.
With him on the brief were Solicitor General Francisco,
Acting Assistant Attorney General Boente, Deputy Solicitor
General Kneedler, Joseph F. Palmer, and Danielle S.
Tarin.
Justice Kagan delivered the opinion of the Court.
This case is about the legality of a military offcer serving
as a judge on both an Air Force appeals court and the Court
of Military Commission Review (CMCR). The petitioner, an
airman convicted of crimes in the military justice system,
contends that the judge's holding of dual offces violated
a statute regulating military service, as well as the Constitution's
Appointments Clause. The Court of Appeals
for the Armed Forces (CAAF) rejected those claims, and we
granted a petition for certiorari. We hold frst that this
Court has jurisdiction to review decisions of the CAAF, even
though it is not an Article III court. We then affrm the
CAAF's determination that the judge's simultaneous service
was lawful.
I
In the exercise of its authority over the armed forces, Congress
has long provided for specialized military courts to
adjudicate charges against service members. Today, triallevel
courts-martial hear cases involving a wide range of
offenses, including crimes unconnected with military service;
as a result, the jurisdiction of those tribunals overlaps substantially
with that of state and federal courts. See Solorio
v. United States, 483 U. S. 435, 436 (1987); United States v.
Kebodeaux, 570 U. S. 387, 404 (2013) (Alito, J., concurring in
judgment). And courts-martial are now subject to several
432 ORTIZ v. UNITED STATES
Opinion of the Court
tiers of appellate review, thus forming part of an integrated
“court-martial system” that closely resembles civilian structures
of justice. United States v. Denedo, 556 U. S. 904, 920
(2009); see Weiss v. United States, 510 U. S. 163, 174 (1994).
That system begins with the court-martial itself, an
offcer-led tribunal convened to determine guilt or innocence
and levy appropriate punishment, up to lifetime imprisonment
or execution. See 10 U. S. C. §§ 816, 818, 856a. The
next phase of military justice occurs at one of four appellate
courts: the Court of Criminal Appeals (CCA) for the Army,
Navy-Marine Corps, Air Force, or Coast Guard. Those
courts, using three-judge panels of either offcers or civilians,
review all decisions in which the sentence imposed involves
a punitive discharge, incarceration for more than one year,
or death. See §§ 866(a)–(c). Atop the court-martial system
is the CAAF, a “court of record” made up of fve civilian
judges appointed to serve 15-year terms. § 941; see
§§ 942(a)–(b). The CAAF must review certain weighty
cases (including those in which capital punishment was imposed),
and may grant petitions for review in any others.
See § 867. Finally, this Court possesses statutory authority
to step in afterward: Under 28 U. S. C. § 1259, we have jurisdiction
to review the CAAF's decisions by writ of certiorari.
Petitioner Keanu Ortiz's case has run the gamut of this
legal system. Ortiz, an Airman First Class in the Air Force,
was charged with knowingly possessing and distributing
child pornography, in violation of the Uniform Code of Military
Justice. A court-martial found Ortiz guilty as charged
and imposed a sentence of two years' imprisonment and
a dishonorable discharge. On appeal, an Air Force CCA
panel, including Colonel Martin Mitchell, summarily affrmed
the court-martial's decision. The CAAF then granted Ortiz's
petition for review to consider whether Judge Mitchell
was disqualifed from serving on the CCA, thus entitling
Ortiz to an appellate do-over.
That issue arose from Judge Mitchell's simultaneous service
on the CMCR. Congress created the CMCR as an appelCite
as: 585 U. S. 427 (2018) 433
Opinion of the Court
late tribunal to review the decisions of military commissions,
particularly those operating in Guantanamo Bay.1 The Secretary
of Defense put Judge Mitchell on that court shortly
after he became a member of the CCA, under a statutory
provision authorizing the Secretary to “assign [offcers] who
are appellate military judges” to serve on the CMCR as well.
10 U. S. C. § 950f(b)(2). Around the same time, a militarycommission
defendant argued to the Court of Appeals for
the D. C. Circuit that the Appointments Clause requires the
President and Senate (rather than the Secretary) to place
judges on the CMCR. The D. C. Circuit avoided resolving
that issue, but suggested that the President and Senate could
“put [it] to rest” by appointing the very CMCR judges whom
the Secretary had previously assigned. In re al-Nashiri,
791 F. 3d 71, 86 (2015). The President decided to take that
advice, and nominated each of those judges—Mitchell, among
them—under an adjacent statutory provision authorizing
him to “appoint, by and with the advice and consent of the
Senate,” CMCR judges. § 950f(b)(3). The Senate then confrmed
those nominations. About a month later, Judge
Mitchell—now wearing his CCA robe—participated in the
panel decision rejecting Ortiz's appeal.
In Ortiz's view, Judge Mitchell's appointment to the CMCR
barred his continued service on the CCA under both a statute
and the Constitution. First, Ortiz invoked 10 U. S. C.
§ 973(b). That statute, designed to ensure civilian preeminence
in government, provides that unless “otherwise authorized
by law,” an active-duty military offcer like Judge
Mitchell “may not hold, or exercise the functions of,” certain
“civil offce[s]” in the Federal Government. § 973(b)(2)(A).
According to Ortiz, a CMCR judgeship is a covered civil offce,
and no other law allowed the President to put Mitchell
1 In contrast to courts-martial, military commissions have historically
been used to substitute for civilian courts in times of martial law or temporary
military government, as well as to try members of enemy forces for
violations of the laws of war. See Hamdan v. Rumsfeld, 548 U. S. 557,
595–597 (2006) (plurality opinion).
434 ORTIZ v. UNITED STATES
Opinion of the Court
in that position: Thus, his appointment to the CMCR violated
§ 973(b). See Brief in Support of Petition Granted in
No. 16–0671 (CAAF), pp. 17–22. And the proper remedy,
Ortiz argued, was to terminate Judge Mitchell's military
service effective the date of his CMCR appointment and void
all his later actions as a CCA judge—including his decision
on Ortiz's appeal. See ibid. Second and independently,
Ortiz relied on the Appointments Clause to challenge Judge
Mitchell's dual service. See id., at 27–40. The premise of
his argument was that CMCR judges are “principal offcers”
under that Clause, whereas CCA judges (as this Court has
held) are “inferior offcers.” Edmond v. United States, 520
U. S. 651, 666 (1997). Ortiz claimed that the Appointments
Clause prohibits someone serving as a principal offcer on
one court (the CMCR) from sitting alongside inferior offcers
on another court (the CCA). Because Judge Mitchell had
done just that, Ortiz concluded, the CCA's ruling on his appeal
could not stand.
The CAAF rejected both grounds for ordering another appeal.
See 76 M. J. 189 (2017). In considering the statutory
question, the court chose not to decide whether § 973(b) precluded
Judge Mitchell from serving on the CMCR while an
active-duty offcer. Even if so, the CAAF held, the remedy
for the violation would not involve terminating the judge's
military service or voiding actions he took on the CCA. See
id., at 192. Turning next to the constitutional issue, the
CAAF “s[aw] no Appointments Clause problem.” Id., at
193. Even assuming Judge Mitchell was a principal offcer
when sitting on the CMCR, the court held, that status in no
way affected his service on the CCA: “When Colonel Mitchell
sits as a CCA judge, he is no different from any other CCA
judge.” Ibid. The CAAF thus upheld the CCA's affrmance
of Ortiz's convictions.
This Court granted Ortiz's petition for certiorari to consider
whether either § 973(b) or the Appointments Clause
prevents a military offcer from serving, as Judge Mitchell
Cite as: 585 U. S. 427 (2018) 435
Opinion of the Court
did, on both a CCA and the CMCR. 582 U. S. 967 (2017).
We now affrm the decision below.2
II
We begin with a question of our own jurisdiction to review
the CAAF's decisions. Congress has explicitly authorized
us to undertake such review in 28 U. S. C. § 1259. See ibid.
(“Decisions of the [CAAF] may be reviewed by the Supreme
Court by writ of certiorari”). Both the Federal Government
and Ortiz view that grant of jurisdiction as constitutionally
proper. But an amicus curiae, Professor Aditya Bamzai, argues
that it goes beyond what Article III allows. That position
is a new one to this Court: We have previously reviewed
nine CAAF decisions without anyone objecting that we
lacked the power to do so.3 Still, we think the argument
is serious, and deserving of sustained consideration. That
analysis leads us to conclude that the judicial character and
constitutional pedigree of the court-martial system enable
this Court, in exercising appellate jurisdiction, to review the
decisions of the court sitting at its apex.
Bamzai starts with a proposition no one can contest—that
our review of CAAF decisions cannot rest on our original
jurisdiction. Brief for Aditya Bamzai as Amicus Curiae 11.
Article III of the Constitution grants this Court original ju-
2 At the same time we issued a writ of certiorari in this case, we granted
and consolidated petitions in two related cases—Dalmazzi v. United
States, No. 16–961, and Cox v. United States, No. 16–1017. Those cases
raise issues of statutory jurisdiction that our disposition today makes it
unnecessary to resolve. We accordingly dismiss Dalmazzi, post, p. 527,
and Cox, post, p. 528, as improvidently granted in opinions accompanying
this decision.
3 See United States v. Denedo, 556 U. S. 904 (2009); Clinton v. Goldsmith,
526 U. S. 529 (1999); United States v. Scheffer, 523 U. S. 303 (1998);
Edmond v. United States, 520 U. S. 651 (1997); Loving v. United States,
517 U. S. 748 (1996); Ryder v. United States, 515 U. S. 177 (1995); Davis v.
United States, 512 U. S. 452 (1994); Weiss v. United States, 510 U. S. 163
(1994); Solorio v. United States, 483 U. S. 435 (1987).
436 ORTIZ v. UNITED STATES
Opinion of the Court
risdiction in a limited category of cases: those “affecting Ambassadors,
other public Ministers and Consuls, and those
in which a State shall be Party.” § 2, cl. 2. That list, of
course, does not embrace Ortiz's case, or any other that the
CAAF considers. And ever since Marbury v. Madison, 1
Cranch 137 (1803), this Court has recognized that our original
jurisdiction cannot extend any further than the cases
enumerated: If Congress attempts to confer more on us, we
must (as Chief Justice Marshall famously did, in the pioneer
act of judicial review) strike down the law. Id., at 174–180.
As a result, Bamzai is right to insist that § 1259 could not
authorize this Court, as part of its original jurisdiction, to
hear military cases like Ortiz's.
The real issue is whether our appellate jurisdiction can
cover such cases. Article III's sole reference to appellate
jurisdiction provides no apparent barrier, but also no substantial
guidance: Following its specifcation of this Court's
original jurisdiction, Article III says only that in all “other
Cases” that the Constitution comprehends (including cases,
like this one, involving federal questions), “the supreme
Court shall have appellate Jurisdiction, both as to Law and
Fact.” § 2, cl. 2. The Constitution's failure to say anything
more about appellate jurisdiction leads Bamzai to focus on
Chief Justice Marshall's opinion in Marbury. See Brief for
Bamzai 2–4, 12–14. In that case (as you surely recall), William
Marbury petitioned this Court—without frst asking
any other—to issue a writ of mandamus to Secretary of State
James Madison directing him to deliver a commission.
After holding (as just related) that the Court's original jurisdiction
did not extend so far, Chief Justice Marshall also rejected
the idea that the Court could provide the writ in the
exercise of its appellate jurisdiction. “[T]he essential criterion
of appellate jurisdiction,” the Chief Justice explained, is
“that it revises and corrects the proceedings in a cause already
instituted, and does not create that cause.” 1 Cranch,
at 175. Marbury's petition, Chief Justice Marshall held,
Cite as: 585 U. S. 427 (2018) 437
Opinion of the Court
commenced the cause—or, to use the more modern word, the
case; hence, it was not a matter for appellate jurisdiction.
Bamzai contends that the same is true of Ortiz's petition.
On any ordinary understanding of the great Chief Justice's
words, that is a surprising claim. Ortiz's petition asks us to
“revise and correct” the latest decision in a “cause” that
began in and progressed through military justice “proceedings.”
Ibid. Or, as the Government puts the point, this
case fts within Chief Justice Marshall's standard because “it
comes to th[is] Court on review of the Court of Appeals for
the Armed Forces' decision, which reviewed a criminal proceeding
that originated in [a] court[]-martial.” Tr. of Oral
Arg. 47–48. So this Court would hardly be the frst to render
a decision in the case. Unless Chief Justice Marshall's
test implicitly exempts cases instituted in a military court—
as contrasted, for example, with an ordinary federal court—
the case is now appellate.4
The military justice system's essential character—in a
word, judicial—provides no reason to make that distinction.
Accord post, at 459–461 (Thomas, J., concurring). Each level
of military court decides criminal “cases” as that term is generally
understood, and does so in strict accordance with a body
4 The dissent asserts that, in setting out that test, we have “basically
proceed[ed] as though Marbury were our last word on the subject” and
overlooked “two centuries of precedent.” Post, at 470 (opinion of Alito, J.).
But the cases the dissent faults us for failing to cite stand for the same
principle that we—and more important, Marbury—already set out. They
too say that our appellate jurisdiction permits us to review only prior
judicial decisions, rendered by courts. See, e. g., Ex parte Yerger, 8 Wall.
85, 97 (1869) (Our “appellate jurisdiction” may “be exercised only in the
revision of judicial decisions”); The Alicia, 7 Wall. 571, 573 (1869) (“An
appellate jurisdiction necessarily implies some judicial determination . . .
of an inferior tribunal, from which an appeal has been taken”); Cohens v. Virginia,
6 Wheat. 264, 396 (1821) (In exercising appellate jurisdiction, we act
as a “supervising Court, whose peculiar province it is to correct the errors of
an inferior Court”); Ex parte Bollman, 4 Cranch 75, 101 (1807) (We exercise
“appellate jurisdiction” in “revisi[ng] a decision of an inferior court”); post,
at 466–468, 472, 473–474. Marbury, then, remains the key precedent.
438 ORTIZ v. UNITED STATES
Opinion of the Court
of federal law (of course including the Constitution). The
procedural protections afforded to a service member are
“virtually the same” as those given in a civilian criminal proceeding,
whether state or federal. 1 D. Schlueter, Military
Criminal Justice: Practice and Procedure § 1–7, p. 50 (9th ed.
2015) (Schlueter). And the judgments a military tribunal
renders, as this Court long ago observed, “rest on the same
basis, and are surrounded by the same considerations[, as]
give conclusiveness to the judgments of other legal tribunals.”
Ex parte Reed, 100 U. S. 13, 23 (1879). Accordingly,
we have held that the “valid, fnal judgments of military
courts, like those of any court of competent jurisdiction[,]
have res judicata effect and preclude further litigation of the
merits.” Schlesinger v. Councilman, 420 U. S. 738, 746
(1975). In particular, those judgments have identical effect
under the Double Jeopardy Clause. See Grafton v. United
States, 206 U. S. 333, 345 (1907).
The jurisdiction and structure of the court-martial system
likewise resemble those of other courts whose decisions we
review. Although their jurisdiction has waxed and waned
over time, courts-martial today can try service members for
a vast swath of offenses, including garden-variety crimes unrelated
to military service. See 10 U. S. C. §§ 877–934; Solorio,
483 U. S., at 438–441; supra, at 431. As a result, the
jurisdiction of those tribunals overlaps signifcantly with the
criminal jurisdiction of federal and state courts. See Kebodeaux,
570 U. S., at 404 (Alito, J., concurring in judgment).
The sentences meted out are also similar: Courts-martial can
impose, on top of peculiarly military discipline, terms of imprisonment
and capital punishment. See § 818(a); post, at 459
(Thomas, J., concurring) (“[T]hese courts decide questions of
the most momentous description, affecting even life itself ”
(internal quotation marks and ellipses omitted)). And the decisions
of those tribunals are subject to an appellate process—
what we have called an “integrated system of military courts
and review procedures”—that replicates the judicial apparatus
found in most States. Councilman, 420 U. S., at 758. By
Cite as: 585 U. S. 427 (2018) 439
Opinion of the Court
the time a case like Ortiz's arrives on our doorstep under 28
U. S. C. § 1259, it has passed through not one or two but three
military courts (including two that can have civilian judges).
And just as important, the constitutional foundation of
courts-martial—as judicial bodies responsible for “the trial
and punishment” of service members—is not in the least insecure.
Dynes v. Hoover, 20 How. 65, 79 (1858). The courtmartial
is in fact “older than the Constitution,” 1 Schlueter
§ 1–6(B), at 39; the Federalist Papers discuss “trials by
courts-martial” under the Articles of Confederation, see
No. 40, p. 250 (C. Rossiter ed. 1961). When it came time to
draft a new charter, the Framers “recogni[zed] and sanction[
ed] existing military jurisdiction,” W. Winthrop, Military
Law and Precedents 48 (2d ed. 1920) (emphasis deleted),
by exempting from the Fifth Amendment's Grand Jury
Clause all “cases arising in the land or naval forces.” And
by granting legislative power “[t]o make Rules for the Government
and Regulation of the land and naval Forces,” the
Framers also authorized Congress to carry forward courtsmartial.
Art. I, § 8, cl. 14. Congress did not need to be told
twice. The very frst Congress continued the court-martial
system as it then operated. See Winthrop, supra, at 47.
And from that day to this one, Congress has maintained
courts-martial in all their essentials to resolve criminal charges
against service members. See 1 Schlueter § 1–6, at 35–48.
Throughout that history, and refecting the attributes described
above, courts-martial have operated as instruments
of military justice, not (as the dissent would have it) mere
“military command,” post, at 480 (opinion of Alito, J.). As
one scholar has noted, courts-martial “have long been understood
to exercise `judicial' power,” of the same kind wielded by
civilian courts. Nelson, Adjudication in the Political Branches,
107 Colum. L. Rev. 559, 576 (2007); see W. De Hart, Observations
on Military Law 14 (1859) (Military courts are “imbued
or endowed with the like essence of judicial power” as
“ordinary courts of civil judicature”); accord post, at 459–461
(Thomas, J., concurring). Attorney General Bates, even in
440 ORTIZ v. UNITED STATES
Opinion of the Court
the middle of the Civil War, characterized a court-martial
“proceeding, from its inception, [a]s judicial,” because the
“trial, fnding, and sentence are the solemn acts of a court
organized and conducted under the authority of and according
to the prescribed forms of law.” Runkle v. United
States, 122 U. S. 543, 558 (1887) (quoting 11 Op. Atty. Gen.
19, 21 (1864)). Colonel Winthrop—whom we have called
the “Blackstone of Military Law,” Reid v. Covert, 354
U. S. 1, 19, n. 38 (1957) (plurality opinion)—agreed with
Bates. He regarded a court-martial as “in the strictest
sense” a “court of law and justice”—“bound, like any court,
by the fundamental principles of law” and the duty to adjudicate
cases “without partiality, favor, or affection.” Winthrop,
supra, at 54.5
Despite all this, Bamzai claims that “Marbury bars th[is]
Court from deciding” any cases coming to us from the courtmartial
system. Brief for Bamzai 3. He begins, much as
5 The independent adjudicative nature of courts-martial is not inconsistent
with their disciplinary function, as the dissent claims, see post, at
480–487. By adjudicating criminal charges against service members,
courts-martial of course help to keep troops in line. But the way they do
so—in comparison to, say, a commander in the feld—is fundamentally judicial.
Accord post, at 462 (Thomas, J., concurring) (“While the CAAF is
in the Executive Branch and its purpose is to help the President maintain
troop discipline, those facts do not change the nature of the power that it
exercises”). Colonel Winthrop stated as much: Even while courts-martial
“enforc[e] discipline” in the armed forces, they remain “as fully a court of
law and justice as is any civil tribunal.” W. Winthrop, Military Law and
Precedents 49, 54 (2d ed. 1920). And he was right. When a military
judge convicts a service member and imposes punishment—up to
execution—he is not meting out extra-judicial discipline. He is acting as
a judge, in strict compliance with legal rules and principles—rather than
as an “arm of military command.” Post, at 480. It is in fact one of the
glories of this country that the military justice system is so deeply rooted
in the rule of law. In asserting the opposite—that military courts are not
“judicial” in “character”—the dissent cannot help but do what it says it
would like to avoid: “denigrat[e the court-martial] system.” Post, at 488;
see post, at 486.
Cite as: 585 U. S. 427 (2018) 441
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we did above, by explaining that under Marbury the Court
can exercise appellate jurisdiction only when it is “supervising
an earlier decision by a lower court.” Brief for Bamzai
13. The next step is where the argument gets interesting.
The CAAF, Bamzai contends, simply does not qualify as such
a body (nor does any other military tribunal). True enough,
“the CAAF is called a `court' ”; and true enough, it decides
cases, just as other courts do. Id., at 3; see id., at 28. But
the CAAF, Bamzai notes, is “not an Article III court,” id.,
at 3 (emphasis added): As all agree, its members lack the
tenure and salary protections that are the hallmarks of the
Article III judiciary, see 10 U. S. C. §§ 942(b), (c). Congress
established the CAAF under its Article I, rather than its
Article III, powers, and Congress located the CAAF (as we
have previously observed) within the Executive Branch,
rather than the judicial one. See § 941; Edmond, 520 U. S.,
at 664, and n. 2. Those facts, in Bamzai's view, prevent this
Court from exercising appellate jurisdiction over the CAAF.
“For constitutional purposes,” Bamzai concludes, the members
of the CAAF “stand on equal footing with James Madison
in Marbury.” Brief for Bamzai 4. (With variations
here and there, the dissent makes the same basic argument.)
But this Court's appellate jurisdiction, as Justice Story
made clear ages ago, covers more than the decisions of Article
III courts. In Martin v. Hunter's Lessee, 1 Wheat. 304
(1816), we considered whether our appellate jurisdiction extends
to the proceedings of state courts, in addition to those
of the Article III federal judiciary. We said yes, as long as
the case involves subject matter suitable for our review.
Id., at 338–352. For our “appellate power,” Story wrote, “is
not limited by the terms of [Article III] to any particular
courts.” Id., at 338. Or again: “[I]t will be in vain to
search in the letter of the [C]onstitution for any qualifcation
as to the tribunal” from which a given case comes. Ibid.
The decisions we review might come from Article III courts,
but they need not.
442 ORTIZ v. UNITED STATES
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The same lesson emerges from two contexts yet more
closely resembling this one—each involving a non-Article III
judicial system created by Congress. First, in Uni ted
States v. Coe, 155 U. S. 76 (1894), this Court upheld the exercise
of appellate jurisdiction over decisions of federal territorial
courts, despite their lack of Article III status. We observed
there that the Constitution grants Congress broad
authority over the territories: to “make all needful Rules and
Regulations respecting” those areas. Art. IV, § 3, cl. 2; see
Coe, 155 U. S., at 85. And we recognized that Congress,
with this Court's permission, had long used that power to
create territorial courts that did not comply with Article III.
See ibid. Chief Justice Marshall had held such a court constitutional
in 1828 even though its authority was “not a part
of that judicial power which is defned in the 3d article.”
American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546
(1828); see Coe, 155 U. S., at 85 (describing that opinion as
having “settled” that Article III “does not exhaust the power
of Congress to establish courts”). The exception to Article
III for territorial courts was thus an established and prominent
part of the legal landscape by the time Coe addressed
this Court's role in reviewing their decisions. And so the
Court found the issue simple. “There has never been any
question,” we declared, “that the judicial action of [territorial
courts] may, in accordance with the Constitution, be subjected
to [our] appellate jurisdiction.” Id., at 86.
Second, we have routinely, and uncontroversially, exercised
appellate jurisdiction over cases adjudicated in the
non-Article III District of Columbia courts.6 Here too, the
6 See, e. g., Artis v. District of Columbia, 583 U. S. 71 (2018); Turner v.
United States, 582 U. S. 313 (2017); United States v. Dixon, 509 U. S. 688
(1993); Jones v. United States, 463 U. S. 354 (1983); Tuten v. United States,
460 U. S. 660 (1983); Whalen v. United States, 445 U. S. 684 (1980); United
States v. Crews, 445 U. S. 463 (1980); Pernell v. Southall Realty, 416 U. S.
363 (1974); Palmore v. United States, 411 U. S. 389 (1973). In none of
Cite as: 585 U. S. 427 (2018) 443
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Constitution grants Congress an unqualifed power: to legislate
for the District “in all Cases whatsoever.” Art. I, § 8,
cl. 17. Under that provision, we long ago determined, “Congress
has the entire control over the [D]istrict for every purpose
of government,” including that of “organizing a judicial
department.” Kendall v. United States ex rel. Stokes, 12
Pet. 524, 619 (1838). So when Congress invoked that authority
to create a set of local courts, this Court upheld the
legislation—even though the judges on those courts lacked
Article III protections. See Palmore v. United States, 411
U. S. 389, 407–410 (1973). We relied on the Constitution's
“plenary grant[ ] of power to Congress to legislate with respect
to” the national capital. Id., at 408. And several
years later, we referred as well to the “historical consensus”
supporting congressional latitude over the District's judiciary.
Northern Pipeline Constr. Co. v. Marathon Pipe
Line Co., 458 U. S. 50, 70 (1982) (plurality opinion); see id.,
at 65, n. 16. To be sure, we have never explicitly held, as we
did in the territorial context, that those same considerations
support our appellate jurisdiction over cases resolved in the
D. C. courts. But some things go unsaid because they are
self-evident. And indeed, even Bamzai readily acknowledges
that this Court can review decisions of the D. C. Court
of Appeals. See Brief for Bamzai 23, 25.
The non-Article III court-martial system stands on much
the same footing as territorial and D. C. courts, as we have
often noted. The former, just like the latter, rests on an
expansive constitutional delegation: As this Court early held,
Article I gives Congress the power—“entirely independent”
of Article III—“to provide for the trial and punishment of
military and naval offences in the manner then and now practiced
by civilized nations.” Dynes, 20 How., at 79; see
supra, at 439. The former has, if anything, deeper historical
these or similar cases has anyone ever challenged our appellate
jurisdiction.
444 ORTIZ v. UNITED STATES
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roots, stretching from before this nation's beginnings up to
the present. See supra, at 439. And the former, no less
than the others, performs an inherently judicial role, as to
substantially similar cases. See supra, at 438–441. So it is
not surprising that we have lumped the three together. In
Palmore, the Court viewed the military, territories, and District
as a triad of “specialized areas having particularized
needs” in which Article III “give[s] way to accommodate plenary
grants of power to Congress.” 411 U. S., at 408. And
in Northern Pipeline, the plurality said of all three that “a
constitutional grant of power [as] historically understood”
has bestowed “exceptional powers” on Congress to create
courts outside Article III. 458 U. S., at 66, 70.7 Given
those well-understood connections, we would need a powerful
reason to divorce military courts from territorial and
D. C. courts when it comes to defning our appellate
jurisdiction.
7 In addition, several Justices in separate opinions have made the same
linkage. See, e. g., Wellness Int'l Network, Ltd. v. Sharif, 575 U. S. 665,
689–690 (2015) (Roberts, C. J., dissenting) (noting that “narrow exceptions
permit Congress to establish non-Article III courts to exercise
general jurisdiction in the territories and the District of Columbia [and]
to serve as military tribunals”); id., at 711 (Thomas, J., dissenting) (referring
to territorial courts and courts-martial as “unique historical exceptions”
to Article III); Stern v. Marshall, 564 U. S. 462, 504–505 (2011)
(Scalia, J., concurring) (noting the “frmly established historical practice”
of exempting territorial courts and courts-martial from Article III's
demands).
The dissent must dismiss all this authority, from Justices both functionalist
and formalist, to aver that “it is only when Congress legislates for
the Territories and the District that it may lawfully vest judicial power in
tribunals that do not conform to Article III.” Post, at 478; see post, at
476–478. Not so, we have made clear, because (once again) of an exceptional
grant of power to Congress, an entrenched historical practice, and
(for some more functionalist judges) particularized needs. The result is
“that Congress has the power [apart from Article III] to provide for the
adjudication of disputes among the Armed Forces,” just as in the territories
and the District. Wellness, 575 U. S., at 712 (Thomas, J., dissenting).
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And Bamzai fails to deliver one. His initial attempt relies
on a simple fact about territorial and D. C. courts: They exercise
power over “discrete geographic areas.” Brief for Bamzai
23. Military courts do not; they instead exercise power
over discrete individuals—i. e., members of the armed forces.
So Bamzai gives us a distinction: places vs. people. What
he does not offer is a good reason why that distinction should
matter in our jurisdictional inquiry—why it is one of substance,
rather than convenience. He mentions that the territorial
and D. C. courts are “functional equivalents of state
courts.” Id., at 24; see Tr. of Oral Arg. 33, 35. But for
starters, that could be said of courts-martial too. As we
have described, they try all the “ordinary criminal offenses”
(murder, assault, robbery, drug crimes, etc., etc., etc.) that
state courts do. Kebodeaux, 570 U. S., at 404 (Alito, J., concurring
in judgment); see supra, at 431, 438. And more fundamentally,
we do not see why geographical state-likeness,
rather than historical court-likeness, should dispose of the
issue. As we have shown, the petition here asks us to “revise[
] and correct[ ] the proceedings in a cause already instituted”
in a judicial system recognized since the founding as
competent to render the most serious decisions. Marbury,
1 Cranch, at 175; see supra, at 437–440. That should make
the case an appeal, whether or not the domain that system
covers is precisely analogous to, say, Alabama.
So Bamzai tries another route to cleave off military courts,
this time focusing on their location in the Executive Branch.
See Brief for Bamzai 26–30. Bamzai actually never says in
what branch (if any) he thinks territorial and D. C. courts
reside. But he knows—because this Court has said—that
the CAAF is an “Executive Branch entity.” Edmond, 520
U. S., at 664, and n. 2; see supra, at 441. And in Bamzai's
view, two of our precedents show that we may never accept
appellate jurisdiction from any person or body within that
branch. See Brief for Bamzai 2–4. The frst case he cites
is Ex parte Vallandigham, 1 Wall. 243 (1864), in which the
446 ORTIZ v. UNITED STATES
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Court held that it lacked jurisdiction over decisions of a temporary
Civil War-era military commission. See id., at 251–
252. The second is Marbury itself, in which the Court held
(as if this needed repeating) that it lacked jurisdiction to review
James Madison's refusal to deliver a commission appointing
William Marbury a justice of the peace. See 1
Cranch, at 175–176; supra, at 436.
As to the frst, Vallandigham goes to show only that not
every military tribunal is alike. The commission the Court
considered there was established by General Ambrose Burnside
(he of the notorious facial hair) for a time-limited, specialized
purpose—to try persons within the military Department
of Ohio (Burnside's then-command) for aiding the
Confederacy. See 1 Wall., at 243–244. And the General
kept frm control of the commission (made up entirely of his
own feld offcers): After personally ordering Vallandigham's
arrest, he (and he alone) also reviewed the commission's
fndings and sentence. See id., at 247–248; J. McPherson,
Battle Cry of Freedom 596–597 (1988). This Court therefore
found that the commission lacked “judicial character.”
1 Wall., at 253. It was more an adjunct to a general than a
real court—and so we did not have appellate jurisdiction
over its decisions.8 But the very thing that Burnside's com-
8 The dissent offers a different—and doubly misleading—explanation for
Vallandigham. First, it says that we found jurisdiction lacking because
the commission was “was not one of the `courts of the United States' established
under Article III.” Post, at 473 (quoting Vallandigham, 1 Wall.,
at 251). But the dissent is reading from the wrong part of the opinion.
Vallandigham contained two holdings—frst (and relevant here), that Article
III precluded the Court from exercising appellate jurisdiction over
the commission's decisions, and second (and irrelevant here), that the Judiciary
Act of 1789 had not authorized such jurisdiction. The language the
dissent quotes relates only to the irrelevant statutory holding: The Judiciary
Act, the Court explained, confned our jurisdiction to decisions of
Article III courts, and the commission did not ft under that rubric. By
contrast, the language we quote in the text formed the basis of the Court's
constitutional holding—which is all that matters here. Second, the dissent
contends that Vallandigham “recognized that the military tribunal
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mission lacked, the court-martial system—and, in particular,
the CAAF (whose decision Ortiz asks us to review)—
possesses in spades. Once again, the CAAF is a permanent
“court of record” created by Congress; it stands at the acme
of a frmly entrenched judicial system that exercises broad
jurisdiction in accordance with established rules and procedures;
and its own decisions are fnal (except if we review and
reverse them). See supra, at 431–432, 437–440.9 That is “judicial
character” more than suffcient to separate the CAAF
from Burnside's commission, and align it instead with territorial
and D. C. (and also state and federal) courts of appeals.
And the differences between the CAAF's decisions and
James Madison's delivery refusal should have already leaped
off the page. To state the obvious: James Madison was not
a court, either in name or in function. He was the Secretary
had `judicial character,' ” even as it found jurisdiction lacking. Post, at
473. Not so. Vallandigham expressly rejected the argument that the
commission had “judicial character.” 1 Wall., at 253. Though the Court
understood that the commission pronounced guilt and imposed sentences,
it did not think the commission was acting as a court in rendering its
decisions. See ibid. (citing United States v. Ferreira, 13 How. 40, 46–47
(1852), in which the Court held that a claims tribunal was without judicial
“character” and labeled its decisions the “award[s] of a commissioner,”
“not the judgment[s] of a court of justice”).
9 The dissent contends that the CAAF's decisions are not always fnal
because the President, relevant branch secretary, or one of his subordinates
must approve a sentence of death or dismissal from the armed forces
before it goes into effect. See post, at 490. But as the Government has
explained, the President's (or other executive offcial's) authority at that
stage extends only to punishment: It is “akin to relief by commutation in
the federal or state system.” Tr. of Oral Arg. 57; see Loving v. United
States, 62 M. J. 235, 247 (CAAF 2005) (likening the approval authority to
“executive clemency powers”). The President, even when “mitigat[ing a]
sentence[,]” cannot “upset[ ] the conviction” or “the judgment of the
CAAF.” Tr. of Oral Arg. 55–56. Rather, as we said above, the CAAF's
judgment is fnal when issued (except if we reverse it). See 10 U. S. C.
§ 871(c)(1) (stating that even when a sentence is subject to an executive
offcial's approval, the “judgment” is “fnal” when judicial review is
concluded).
448 ORTIZ v. UNITED STATES
Opinion of the Court
of State—the head of a cabinet department (and, by the way,
the right arm of the President). Likewise, Madison's failure
to transmit Marbury's commission was not a judicial decision;
it was an enforcement action (though in the form of nonaction),
pertaining only to the execution of law. As Chief
Justice Marshall saw, Secretary Madison merely triggered
the case of Marbury v. Madison; he did not hear and resolve
it, as a judicial body would have done. See 1 Cranch, at 175.
The Chief Justice's opinion thus cleanly divides that case
from this one, even if both (as Bamzai notes) formally involve
executive officers. Here, three constitutionally rooted
courts, ending with the CAAF, rendered inherently judicial
decisions—just as such tribunals have done since our nation's
founding. In reviewing, “revis[ing,] and correct[ing]” those
proceedings, as Ortiz asks, we do nothing more or different
than in generally exercising our appellate jurisdiction. Ibid.
But fnally, in holding that much, we say nothing about
whether we could exercise appellate jurisdiction over cases
from other adjudicative bodies in the Executive Branch, including
those in administrative agencies. Our resolution of
the jurisdictional issue here has rested on the judicial character,
as well as the constitutional foundations and history, of
the court-martial system. We have relied, too, on the connections
that our cases have long drawn between that judicial
system and those of the territories and the District. If
Congress were to grant us appellate jurisdiction over decisions
of newer entities advancing an administrative (rather
than judicial) mission, the question would be different—and
the answer not found in this opinion.
III
We may now turn to the issues we took this case to decide.
Recall that Ortiz seeks a new appeal proceeding before the
Air Force CCA, based on Judge Mitchell's participation in
his last one. See supra, at 432–434. Ortiz's challenge turns
on Judge Mitchell's simultaneous service on another court, the
CMCR. Originally, the Secretary of Defense had assigned
Cite as: 585 U. S. 427 (2018) 449
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Judge Mitchell to sit on that court. Then, to moot a possible
constitutional problem with Judge Mitchell's CMCR service,
the President (with the Senate's advice and consent) appointed
Judge Mitchell as well. A short time later, Judge
Mitchell ruled on Ortiz's CCA appeal. Ortiz contends that
doing so violated both a federal statute and the Appointments
Clause. We disagree on both counts.
A
The statutory issue respecting Judge Mitchell's dual
service turns on two interlocking provisions. The frst
is § 973(b)(2)(A)—the statute Ortiz claims was violated here.
As noted earlier, that law—in the interest of ensuring
civilian preeminence in government—prohibits active-duty
military offcers like Judge Mitchell from “hold[ing], or exercis[
ing] the functions of,” certain “civil offce[s]” in the
Federal Government, “[e]xcept as otherwise authorized by
law.” See supra, at 433. The second is § 950f(b)—a statute
the Government claims “otherwise authorize[s] ” Judge
Mitchell's service on the CMCR, even if a seat on that court
is a covered “civil offce.” As also noted above, § 950f(b)
provides two ways to become a CMCR judge. See supra,
at 433. Under § 950f(b)(2), the Secretary of Defense “may
assign” qualifed offcers serving on a CCA to “be judges on
the [CMCR]” as well. And under § 950f(b)(3), the President
(with the Senate's advice and consent) “may appoint”
persons—whether offcers or civilians is unspecifed—to
CMCR judgeships.
Against that statutory backdrop, Ortiz claims that Judge
Mitchell became disqualifed from serving on the CCA the
moment his presidential appointment to the CMCR became
fnal. See Brief for Petitioners 39–42. Notably, Ortiz has
no statutory objection to Judge Mitchell's simultaneous service
on those courts before that date—when he sat on the
CMCR solely by virtue of the Secretary of Defense's assignment.
See id., at 40. Nor could he reasonably lodge such a
complaint, for § 950f(b)(2), in no uncertain terms, “otherwise
450 ORTIZ v. UNITED STATES
Opinion of the Court
authorize[s]” the Secretary to place a military judge on the
CMCR—thus exempting such an offcer from § 973(b)(2)(A)'s
prohibition. But in Ortiz's view, the provision in § 950f(b)(3)
for presidential appointments contains no similar authorization,
because it makes no “express[ ] or unambiguous[ ]” reference
to military offcers. Id., at 20. And so, Ortiz concludes,
§ 973(b)(2)(A)'s general rule must govern.
In the circumstances here, however, the authorization in
§ 950f(b)(2) was the only thing necessary to exempt Judge
Mitchell from the civil offce-holding ban—not just before but
also after his presidential appointment. That provision, as
just noted, unambiguously permitted the Secretary of Defense
to place Judge Mitchell on the CMCR, even if such a
judgeship is a “civil offce.” See supra, at 449. And once
that happened, the President's later appointment of Judge
Mitchell made not a whit of difference. Nothing in § 950f
(or any other law) suggests that the President's appointment
erased or otherwise negated the Secretary's earlier action.
To the contrary, that appointment (made for purposes of protecting
against a constitutional challenge, see supra, at 433)
merely ratifed what the Secretary had already done. The
nomination papers that the President submitted to the Senate
refect that fact. They sought confrmation of Judge
Mitchell's appointment as a CMCR judge “[i]n accordance
with [his] continued status as [a CMCR] judge pursuant to
[his] assignment by the Secretary of Defense[,] under 10
U. S. C. Section 950f(b)(2).” 162 Cong. Rec. S1474 (Mar. 14,
2016). So after the Senate approved the nomination, Judge
Mitchell served on the CMCR by virtue of both the Secretary's
assignment and the President's appointment. And
because § 950f(b)(2) expressly authorized the Secretary's assignment,
Judge Mitchell's service on the CMCR could not
run afoul of § 973(b)(2)(A)'s general rule.10
10 We state no opinion on a broader argument the Government makes—
that § 950f(b)(2) would exempt Judge Mitchell from § 973(b)(2)(A)'s offceholding
ban even if the Secretary had not assigned him to the CMCR
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Ortiz argues in response that the President's appointment
demanded its own clear authorization because only that
appointment put Judge Mitchell into a “new offce.” Reply
Brief 7. According to Ortiz, an offcer who receives a
secretarial assignment to the CMCR “exercise[s] additional
duties”—but he does not hold a second position. Tr. of Oral
Arg. 13. A presidential appointment alone, he says, effects
that more dramatic change. And Ortiz contends that
§ 973(b)(2)(A)'s rule cares about that difference. That law,
Ortiz says, requires a legislative authorization when, and
only when, a service member receives a whole new offce—
which is to say here when, and only when, the President
appoints a judge to the CMCR. See Tr. of Oral Arg. 4–5
(stating that § 973(b)(2)(A) “prohibit[s] military offcers from
holding [civil offces] absent express congressional authorization,
while generally allowing military offcers to be assigned
to exercise the duties of such positions”).
But that argument is contrary to § 973(b)(2)(A)'s text, as
well as to the purposes it refects. The statute draws no
distinction between secretarial assignees and presidential
appointees, nor between those who exercise the duties of an
offce and those who formally hold it. True enough, we have
sometimes referred to § 973(b)(2)(A) as a rule about dual
“offce-holding,” see supra, at 450, and n. 10—but that is
mere shorthand. In fact, § 973(b)(2)(A)'s prohibition applies
broadly, and uniformly, to any military offcer who “hold[s],
or exercise[s] the functions of,” a covered civil offce. And
the “except as otherwise authorized” caveat applies in the
before the President's appointment. See Brief for United States 27–29.
And because we hold that the Secretary's assignment authorized Judge
Mitchell to serve on the CMCR while an active-duty military offcer, we
need not decide whether a CMCR judgeship is a covered “civil offce”
subject to § 973(b)(2)(A). Neither need we address the remedial issue on
which the CAAF ruled, see supra, at 434—i. e., whether a violation of
§ 973(b)(2)(A) would have immediately terminated Judge Mitchell's military
service and voided later decisions he made (including in Ortiz's case)
as a military judge.
452 ORTIZ v. UNITED STATES
Opinion of the Court
same way—to “hold[ing]” and “exercis[ing]” alike. So the
very distinction that Ortiz relies on, the statute rejects: Indeed,
the law could not be clearer in its indifference. That is
because Congress determined that military offcers threaten
civilian preeminence in government by either “hold[ing]” or
“exercis[ing] the functions of ” important civil offces. Except
. . . if Congress decides otherwise and says as much.
And once again, here Congress did exactly that. Judge
Mitchell became a CMCR judge, while remaining in the military,
because of a secretarial assignment that Congress explicitly
authorized. See supra, at 449–450. After his presidential
appointment, he continued on the same court, doing
the same work, in keeping with the same congressional approval.
Even supposing he obtained a “new offce” in the
way Ortiz says, that acquisition is of no moment. With or
without that formal offce, Judge Mitchell “h[e]ld, or exercise[
d] the functions of,” a CMCR judgeship, and so was subject
to § 973(b)(2)(A)'s ban. But likewise, with or without
that formal offce, Judge Mitchell could receive permission
from Congress to do the job—that is, to sit as a judge on the
CMCR. And § 950f(b)(2) gave Judge Mitchell that legislative
green light, from the date of his assignment through his
ruling on Ortiz's case and beyond.
B
Finally, Ortiz raises an Appointments Clause challenge to
Judge Mitchell's simultaneous service on the CCA and the
CMCR. That Clause provides that the President “shall
nominate, and by and with the Advice and Consent of the
Senate, shall appoint” the “Offcers of the United States,”
but that “Congress may by Law vest the Appointment of
such inferior Offcers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments.”
Art. II, § 2, cl. 2. Litigants usually invoke the Appointments
Clause when they object to how a government offcial is
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placed in his offce. A litigant may assert, for example, that
because someone is a principal rather than an inferior offcer,
he must be nominated by the President and confrmed by the
Senate. (Recall that just such an argument about CMCR
judges led to Judge Mitchell's presidential appointment.
See supra, at 433.) But Ortiz's argument is not of that genre.
He does not claim that the process used to make Judge
Mitchell either a CCA judge or a CMCR judge violated the
Appointments Clause. Instead, he claims to fnd in that
Clause a principle relating to dual service. A CCA judge,
Ortiz notes, is an inferior offcer. See Edmond, 520 U. S., at
666. But a CMCR judge, he says (though the Government
has argued otherwise), is a principal offcer. And in Ortiz's
view, a single judge cannot, consistent with the Appointments
Clause, serve as an inferior offcer on one court
and a principal offcer on another. He calls such dual offceholding
“incongru[ous]” and “functionally incompatible.”
Brief for Petitioners 50. The problem, he suggests, is that
the other (inferior offcer) judges on the CCA will be “unduly
infuenced by” Judge Mitchell's principal-offcer status on the
CMCR. Id., at 51.
But that argument stretches too far. This Court has
never read the Appointments Clause to impose rules about
dual service, separate and distinct from methods of appointment.
Nor has it ever recognized principles of “incongruity”
or “incompatibility” to test the permissibility of holding
two offces. As Ortiz himself acknowledges, he can “cite no
authority holding that the Appointments Clause prohibits
this sort of simultaneous service.” Id., at 52.
And if we were ever to apply the Clause to dual offceholding,
we would not start here. Ortiz tells no plausible
story about how Judge Mitchell's service on the CMCR
would result in “undue infuence” on his CCA colleagues.
The CMCR does not review the CCA's decisions (or vice
versa); indeed, the two courts do not have any overlapping
454 ORTIZ v. UNITED STATES
Thomas, J., concurring
jurisdiction. They are parts of separate judicial systems,
adjudicating different kinds of charges against different
kinds of defendants. See supra, at 431–433, and n. 1. We
cannot imagine that anyone on the CCA acceded to Judge
Mitchell's views because he also sat on the CMCR—any more
than we can imagine a judge on an Article III Court of Appeals
yielding to a colleague because she did double duty on
the Foreign Intelligence Surveillance Court of Review (another
specialized court). The CAAF put the point well:
“When Colonel Mitchell sits as a CCA judge, he is no different
from any other CCA judge.” 76 M. J., at 193; see supra,
at 434. So there is no violation of the Appointments Clause.
IV
This Court has appellate jurisdiction to review the
CAAF's decisions. In exercising that jurisdiction, we hold
that Judge Mitchell's simultaneous service on the CCA and
the CMCR violated neither § 973(b)(2)(A)'s offce-holding ban
nor the Constitution's Appointments Clause. We therefore
affrm the judgment below.
It is so ordered.
Justice Thomas, concurring.
I join the Court's opinion in full, which persuasively explains
why petitioner's statutory and constitutional arguments
lack merit. I also agree that the statute giving this
Court appellate jurisdiction to review the decisions of the
Court of Appeals for the Armed Forces (CAAF), 28 U. S. C.
§ 1259, complies with Article III of the Constitution. I write
separately to explain why that conclusion is consistent with
the Founders' understanding of judicial power—specifcally,
the distinction they drew between public and private
rights.1
1 I express no view on any other arguments that were not raised by the
parties or amicus in this case, including any arguments based on Article
II of the Constitution.
Cite as: 585 U. S. 427 (2018) 455
Thomas, J., concurring
I
Article III vests “[t]he judicial Power of the United
States” in this Court and any inferior courts that Congress
chooses to establish. § 1. The judicial power includes the
power to resolve the specifc types of “Cases” and “Controversies”
listed in § 2. Article III divides this Court's jurisdiction
over those cases into two categories: “original Jurisdiction”
and “appellate Jurisdiction.” This Court has
original jurisdiction in cases affecting ambassadors, other
public ministers, and consuls, and cases in which a State is a
party. This Court has appellate jurisdiction “[i]n all the
other Cases before mentioned” in § 2. Because all agree
that the CAAF decides “other Cases” that are not reserved
for this Court's original jurisdiction, we can review its decisions
only under our appellate jurisdiction.
The text of Article III imposes two important limits on
this Court's appellate jurisdiction. First, as mentioned, this
Court can review only the “other Cases” that are “before
mentioned”—i. e., the subject matters of cases listed in § 2
that are not reserved for its original jurisdiction. Second,
this Court's “appellate Jurisdiction” cannot be “original.”
As Chief Justice Marshall explained, “the essential criterion
of appellate jurisdiction” is that “it revises and corrects the
proceedings in a cause already instituted, and does not create
that cause.” Marbury v. Madison, 1 Cranch 137, 175 (1803).
Thus, this Court cannot exercise appellate jurisdiction unless
it is reviewing an already completed exercise of “judicial
power.” In re Sanborn, 148 U. S. 222, 224 (1893); see also
The Alicia, 7 Wall. 571, 573 (1869) (“An appellate jurisdiction
necessarily implies some judicial determination, some judgment,
decree, or order of an inferior tribunal, from which
an appeal has been taken”); 3 J. Story, Commentaries on
the Constitution of the United States § 1755, p. 627 (1833)
(explaining that this Court can review only decisions “by
one clothed with judicial authority, and acting in a judicial
capacity”).
456 ORTIZ v. UNITED STATES
Thomas, J., concurring
Other than these two limits, the text of Article III imposes
no other self-executing constraints on this Court's appellate
jurisdiction. Most notably, it does not require appeals to
come from any specifc type of tribunal, such as an Article
III court. As Justice Story explained, “The appellate power
is not limited by the terms of the third article to any particular
courts. . . . It is the case, then, and not the court, that
gives the jurisdiction. If the judicial power extends to the
case, it will be in vain to search in the letter of the constitution
for any qualifcation as to the tribunal.” Martin v.
Hunter's Lessee, 1 Wheat. 304, 338 (1816). Hamilton made
the same point years earlier: “The Constitution in direct
terms gives an appellate jurisdiction to the Supreme Court
in all the enumerated cases . . . , without a single expression
to confne its operation to the inferior federal courts. The
objects of appeal, not the tribunals from which it is to be
made, are alone contemplated.” The Federalist No. 82,
pp. 493–494 (C. Rossiter ed. 1961); see also id., No. 81, at 489
(A. Hamilton) (rejecting a “technical interpretation” of the
word “appellate” and defning it to mean “nothing more than
the power of one tribunal to review the proceedings of another”).
This Court has relied on the lack of tribunalspecifc
limits in Article III to exercise appellate jurisdiction
over several types of non-Article III courts, including state
courts, see Martin, supra, at 338, and territorial courts, see
United States v. Coe, 155 U. S. 76, 85–86 (1894); Wellness
Int'l Network, Ltd. v. Sharif, 575 U. S. 665, 711–712, n. 2
(2015) (Thomas, J., dissenting) (discussing American Ins. Co.
v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828)). In short,
this Court's appellate jurisdiction requires the exercise of a
judicial power, not necessarily “[t]he judicial Power of the
United States” that Article III vests exclusively in the federal
courts, § 1 (emphasis added).
The Founders' understanding of judicial power was heavily
infuenced by the well-known distinction between public and
Cite as: 585 U. S. 427 (2018) 457
Thomas, J., concurring
private rights. See Spokeo, Inc. v. Robins, 578 U. S. 330,
343–345 (2016) (Thomas, J., concurring); Wellness, supra, at
712–717 (opinion of Thomas, J.); Nelson, Adjudication in the
Political Branches, 107 Colum. L. Rev. 559, 565 (2007) (Nelson).
Public rights “ `belon[g] to the people at large,' ” while
private rights belong to “ `each individual.' ” Wellness, 575
U. S., at 713 (opinion of Thomas, J.). The three classic private
rights—life, liberty, and property—are “ `unalienable' ”
and “ `absolute,' ” as they are “not dependent upon the will
of the government.” Ibid. The Founders linked the disposition
of private rights with the exercise of judicial power.
See id., at 714. They considered “the power to act conclusively
against [private] rights [as] the core of the judicial
power.” Ibid.
A disposition of private rights did not amount to an exercise
of judicial power, however, unless it also satisfed “some
basic procedural requirements.” Nelson 574. Stated differently,
the disposition had to “assume such a form that the
judicial power is capable of acting on it.” Osborn v. Bank
of United States, 9 Wheat. 738, 819 (1824). “[T]hat form
generally required the presence (actual or constructive) of
adverse parties who had been given some opportunity to be
heard before the court rendered a fnal judgment that bound
them.” Nelson 574. Once a dispute took this form, judicial
power is exercised by “ `determin[ing] all differences according
to the established law.' ” Wellness, supra, at 710 (opinion
of Thomas, J.) (quoting J. Locke, Second Treatise of Civil
Government § 125, p. 63 (J. Gough ed. 1947)).
II
A
So understood, the CAAF exercises a judicial power. As
I explained in Wellness, military courts adjudicate core private
rights to life, liberty, and property. See 575 U. S.,
at 711–712 (dissenting opinion). That these courts adjudi458
ORTIZ v. UNITED STATES
Thomas, J., concurring
cate core private rights does not contradict the Vesting
Clause of Article III, which permits only federal courts to
exercise “the judicial Power of the United States.” Like
other provisions of the Constitution, this language must be
read against “commonly accepted background understandings
and interpretive principles in place when the Constitution
was written,” including the principle that general
constitutional rules could apply “differently to civil than
to military entities.” Mascott, Who Are “Offcers of the
United States”? 70 Stan. L. Rev. 443, 480–483 (2018) (citing
Nelson 576); see also Northern Pipeline Constr. Co. v. Marathon
Pipe Line Co., 458 U. S. 50, 64 (1982) (plurality opinion)
(explaining that interpreting Article III to exclude military
courts “simply acknowledge[s] that the literal command of
Art. III . . . must be interpreted in light of . . . historical
context . . . and of the structural imperatives of the Constitution
as a whole”). Based on the “constellation of constitutional
provisions that [indicate] Congress has the power to
provide for the adjudication of disputes among the Armed
Forces it creates,” our precedents have long construed the
Vesting Clause of Article III to extend “only to civilian judicial
power.” Wellness, supra, at 712 (opinion of Thomas, J.)
(citing Dynes v. Hoover, 20 How. 65, 78–79 (1858)). In other
words, the powers that the Constitution gives Congress over
the military are “so exceptional” that they are thought to
include the power to create courts that can exercise a judicial
power outside the confnes of Article III. Northern Pipeline,
supra, at 64. Thus, military courts are better thought
of as an “exception” or “carve-out” from the Vesting Clause
of Article III, rather than an entity that does not implicate
the Vesting Clause because it does not exercise judicial
power in the frst place. See Wellness, supra, at 711–712
(opinion of Thomas, J.).
No party in this case challenges the legitimacy of the historical
exception for military courts. And for good reason:
“At the time of the Framing, . . . it was already common for
Cite as: 585 U. S. 427 (2018) 459
Thomas, J., concurring
nations to organize military tribunals that stood apart from
the ordinary civilian courts, and the United States itself had
done so.” Nelson 576. As the Court explains, military
courts predate the Constitution, were well known to the
Founders, were authorized by the First Congress, and are
expressly contemplated by the Fifth Amendment. Ante, at
439. The crucial point for present purposes, however, is
that military courts are considered exempt from the structural
requirements of Article III “because of other provisions
of the Constitution, not because of the defnition of judicial
power.” Wellness, supra, at 712 (opinion of Thomas, J.)
(citing Nelson 576). They plainly fall within that defnition.
Military courts “have long been understood to exercise `judicial'
power” because they “act upon core private rights to
person and property.” Id., at 576. “[C]lothed with judicial
powers,” these courts decide “questions of the most momentous
description, affecting . . . even life itself.” W. De Hart,
Observations on Military Law 14 (1859); see also 11 Op. Atty.
Gen. 19, 21 (1864) (explaining that military courts are “judicial”
because they “pass upon the most sacred questions of
human rights . . . which, in the very nature of things, . . .
must be adjudged according to law”). Here, for example,
the CAAF adjudicated the legality of petitioner's childpornography
convictions and his sentence of two years' confnement—
a classic deprivation of liberty, see Obergefell v.
Hodges, 576 U. S. 644, 724–726 (2015) (Thomas, J., dissenting).
“The passing of judgment on the life and liberty of
those convicted by the government in a military trial surely
falls within the judicial power.” Willis, The Constitution,
the United States Court of Military Appeals and the Future,
57 Mil. L. Rev. 27, 84 (1972). This Court has acknowledged
that military courts adjudicate core private rights, as it has
repeatedly held that the prosecution of nonservicemembers
in these courts would violate Article III. See Northern
Pipeline, supra, at 66, n. 17 (plurality opinion); e. g., United
States ex rel. Toth v. Quarles, 350 U. S. 11 (1955) (former
460 ORTIZ v. UNITED STATES
Thomas, J., concurring
servicemembers); Reid v. Covert, 354 U. S. 1 (1957) (spouses
of servicemembers).2
In addition to adjudicating private rights, the CAAF's
cases “assume such a form that the judicial power is capable
of acting on [them].” Osborn, supra, at 819. The CAAF
adjudicates cases involving “adverse parties who ha[ve] been
given some opportunity to be heard.” Nelson 574. It has
independent authority to “prescribe” its own “rules of procedure,”
10 U. S. C. § 944, which provide for briefng, oral argument,
and other procedures that mirror a federal court of
appeals. See generally CAAF Rules of Practice and Proc.
(2017). The CAAF also decides cases “ `according to the
established law.' ” Wellness, 575 U. S., at 710 (opinion of
Thomas, J.). It can act “only with respect to matters of
law,” § 867(c), and its civilian judges decide cases by independently
interpreting the Constitution, the Uniform Code
of Military Justice, and other federal laws. Lastly, the
CAAF renders “fnal judgment[s] that b[ind] [the parties].”
Nelson 574. Its judgments are “fnal and conclusive” as
soon as they are published and are “binding upon all departments,
courts, agencies, and offcers of the United States.”
§ 876. The Executive Branch has no statutory authority to
review or modify the CAAF's decisions.3 In short, when it
2 Servicemembers consent to military jurisdiction when they enlist.
While this consent might allow military courts to adjudicate a servicemember's
private rights, it does not transform the nature of the power
that the military courts exercise, or somehow transform the servicemember's
private right to life, liberty, or property into a public right. See
Wellness Int'l Network, Ltd. v. Sharif, 575 U. S. 665, 710–711, 718 (2015)
(Thomas, J., dissenting).
3 Unlike the CAAF's decisions, court-martial proceedings are not fnal
until they are approved by the convening authority. See 10 U. S. C. § 876.
But the CAAF does not review court-martial proceedings until after they
have been approved and have been reviewed by an intermediate Court of
Criminal Appeals. See § 867(c). Because “the [CAAF] reviews courtmartial
convictions after executive branch review ends,” the “[r]eview of
its decisions in the Supreme Court of the United States, by certiorari, . . .
poses no fnality problems” under Article III. Pfander, Article I TribuCite
as: 585 U. S. 427 (2018) 461
Thomas, J., concurring
comes to the CAAF, “ `[t]he whole proceeding from its inception
is judicial.' ” Runkle v. United States, 122 U. S. 543,
558 (1887) (quoting 11 Op. Atty. Gen., at 21).4
B
Professor Bamzai contends that the CAAF exercises an executive,
not a judicial, power. He notes that this Court has
described the CAAF as an “Executive Branch entity,” Edmond
v. United States, 520 U. S. 651, 664 (1997), and he cites
commentators who describe military courts as “instrumentalities
of the executive power” because they help the President
maintain discipline over the Armed Forces, W. Winthrop, Military
Law and Precedents 49 (2d ed. 1920) (emphasis deleted);
G. Davis, Military Law of the United States 15 (2d ed. 1909).
Professor Bamzai also compares the CAAF to administrative
agencies, which he contends exercise executive power. If
agencies exercised core judicial power, he notes, they would
be acting unconstitutionally because they do not enjoy the
nals, Article III Courts, and the Judicial Power of the United States, 118
Harv. L. Rev. 643, 717, n. 327 (2004).
4 Most of the statutes cited above are unique to the CAAF—the court
whose decision we are reviewing and, thus, the only one that matters for
purposes of our appellate jurisdiction. I express no view on whether this
Court could directly review the CAAF, absent these statutes. And I express
no view on whether this Court could directly review the decisions
of other military courts, such as courts-martial or military commissions.
Cf. id., at 723, n. 358 (suggesting that this Court could not directly review
courts-martial and military commissions because their proceedings are
“summary” and “create no record to support writ of error review”);
Choper & Yoo, Wartime Process: A Dialogue on Congressional Power To
Remove Issues From the Federal Courts, 95 Cal. L. Rev. 1243, 1283 (2007)
(suggesting that the adjudication of the rights of enemy aliens by law-ofwar
military commissions might be better understood as exercising the
President's power to conduct war, not judicial power). And, of course,
this Court's appellate jurisdiction does not allow it to directly review decisions
of the Executive Branch that do not “assume such a form that the
judicial power is capable of acting on [them].” Osborn v. Bank of United
States, 9 Wheat. 738, 819 (1824).
462 ORTIZ v. UNITED STATES
Thomas, J., concurring
structural protections of Article III. See Arlington v. FCC,
569 U. S. 290, 304, n. 4 (2013).
These arguments miss the mark. While the CAAF is in
the Executive Branch and its purpose is to help the President
maintain troop discipline, those facts do not change the
nature of the power that it exercises. See Brigadier General
S. T. Ansell's Brief Filed in Support of His Offce Opinion
(Dec. 11, 1917), reprinted in Hearings on S. 64 before the
Subcommittee of the Senate Committee on Military Affairs,
66th Cong., 1st Sess., 71, 76 (1919). And it is the nature of
the power, not the branch exercising it, that controls our
appellate jurisdiction:
“The controlling question is whether the function to be
exercised . . . is a judicial function . . . . We must not `be
misled by a name, but look to the substance and intent
of the proceeding.' United States v. Ritchie, 17 How.
525, 534 [(1855)]. `It is not important . . . whether such
a proceeding was originally begun by an administrative
or executive determination, if when it comes to the
court, whether legislative or constitutional, it calls for
the exercise of only the judicial power.' ” Federal
Radio Comm'n v. Nelson Brothers Bond & Mortgage
Co. (Station WIBO), 289 U. S. 266, 277–278 (1933) (some
citations omitted).
As explained, the CAAF exercises a judicial power because
it adjudicates private rights. That the Constitution permits
this Executive Branch entity to exercise a particular judicial
power—due to the political branches' expansive constitutional
powers over the military—does not change the
analysis.
Professor Bamzai's analogy to administrative agencies is
fawed. Professor Bamzai assumes that, when administrative
agencies adjudicate private rights, they are not exercising
judicial power. But they are. See B&B Hardware, Inc.
v. Hargis Industries, Inc., 575 U. S. 138, 171–172 (2015)
Cite as: 585 U. S. 427 (2018) 463
Alito, J., dissenting
(Thomas, J., dissenting). In fact, they are unconstitutionally
exercising “[t]he judicial Power of the United States,”
as agencies are not Article III courts and do not “enjoy a
unique, textually based” carveout from the Vesting Clause of
Article III. Wellness, supra, at 718 (opinion of Thomas, J.).
The CAAF does enjoy such a carveout, as I explained in
Wellness. But both it and administrative agencies exercise
a judicial power when they adjudicate private rights. Contrary
to the premise underlying Professor Bamzai's argument,
questions implicating the separation of powers cannot
be answered by arguing, in circular fashion, that whatever
the Executive Branch does is necessarily an exercise of executive
power.
* * *
Because the CAAF exercises a judicial power, the statute
giving this Court appellate jurisdiction over its decisions
does not violate Article III. For these reasons, and the reasons
given by the Court, I concur.
Justice Alito, with whom Justice Gorsuch joins,
dissenting.
I begin with a story that is familiar to students of constitutional
law. After his Federalist Party was defeated in the
pivotal election of 1800, outgoing President John Adams attempted
to fll the Federal Judiciary with individuals favored
by his party. The Senate confrmed Adams's nominees, and
Adams diligently signed their commissions and sent them to
the Secretary of State, one John Marshall, so that the Great
Seal could be affxed and the commissions could be delivered.
Most of the commissions were promptly sealed and dispatched,
but a few were left behind, including the commission
of William Marbury, who had been nominated and confrmed
as a justice of the peace for the District of Columbia.
After Thomas Jefferson was sworn in as the Nation's third
President, he was furious about Adams's eleventh-hour judi464
ORTIZ v. UNITED STATES
Alito, J., dissenting
cial appointments,1 and his Secretary of State, James Madison,
made a fateful decision. Evaluating the facts and the
law as he saw them, Madison concluded that he was under
no legal obligation to deliver the commissions that had been
left in Marshall's offce, and he decided not to do so.
Outraged, Marbury fled suit directly in our Court, asking
that Madison be ordered to deliver his commission. But we
dismissed his case, holding, among other things, that it did
not fall within our “appellate jurisdiction.” Marbury v.
Madison, 1 Cranch 137, 175–176, 180 (1803). Why? Because
“appellate jurisdiction” means jurisdiction to review
“the proceedings in a cause [i. e., a case] already instituted”
in another court. Id., at 175. Madison was an Executive
Branch offcer, not a court, and therefore Marbury's dispute
with Madison did not become a “cause” or case until it was
brought before this Court. As a result, review of Madison's
decision did not fall within our “appellate” jurisdiction. Id.,
at 175–176.
That conclusion was straightforward enough. But suppose
that Madison's decisionmaking process had been more
formal. Suppose that he had heard argument about his
legal obligations—and perhaps even testimony about Marbury's
qualifcations. (After all, President Jefferson reappointed
some of Adams's nominees, but not Marbury.2) Or
suppose Madison had convened an Executive Branch committee
to make an initial determination. Suppose that this
entity was labeled the “Court of Commission Review.”
Suppose that the members wore robes and were called
judges, held their meeting in a courthouse, and adopted
court-like procedures. With all these adornments, would
Madison's decision have fallen within our appellate jurisdic-
1 Letter from T. Jefferson to H. Knox (Mar. 27, 1801), in 33 Papers of
Thomas Jefferson 465, 466 (B. Oberg ed. 2006).
2 Prakash, The Appointment and Removal of William J. Marbury and
When an Offce Vests, 89 Notre Dame L. Rev. 199, 209 (2013).
Cite as: 585 U. S. 427 (2018) 465
Alito, J., dissenting
tion? Would Marbury v. Madison have come out the other
way?
The answer is no, and the reason is the same as before.
Our appellate jurisdiction permits us to review one thing:
the lawful exercise of judicial power. Lower federal courts
exercise the judicial power of the United States. State
courts exercise the judicial power of sovereign state governments.
Even territorial courts, we have held, exercise the
judicial power of the territorial governments set up by Congress.
Executive Branch offcers, on the other hand, cannot
lawfully exercise the judicial power of any sovereign, no
matter how court-like their decisionmaking process might
appear. That means their decisions cannot be appealed directly
to our Court.
We have followed this rule for more than two centuries.
It squarely resolves this case. Courts-martial are older
than the Republic and have always been understood to be
Executive Branch entities that help the President, as Commander
in Chief, to discipline the Armed Forces. As currently
constituted, military tribunals do not comply with
Article III, and thus they cannot exercise the Federal Government's
judicial power. That fact compels us to dismiss
Ortiz's petition for lack of jurisdiction.
Today's decision is unprecedented, and it fatly violates the
unambiguous text of the Constitution. Although the arguments
in the various opinions issued today may seem complex,
the ultimate issue is really quite simple. The Court
and the concurrence say that Congress may confer part of
the judicial power of the United States on an entity that is
indisputably part of the Executive Branch. But Article III
of the Constitution vests “[t]he judicial Power of the United
States”—every single drop of it—in “one supreme Court,
and in such inferior Courts as the Congress may from time
to time ordain and establish” in compliance with that Article.
A decision more contrary to the plain words of the Constitution
is not easy to recall.
466 ORTIZ v. UNITED STATES
Alito, J., dissenting
I
Under Article III of the Constitution, the judicial power
of the United States may be vested only in tribunals whose
judges have life tenure and salary protection. § 1. “There
is no exception to this rule in the Constitution.” Benner v.
Porter, 9 How. 235, 244 (1850); Oil States Energy Services,
LLC v. Greene's Energy Group, LLC, 584 U. S. 325, 333–334
(2018); Stern v. Marshall, 564 U. S. 462, 503 (2011); Martin
v. Hunter's Lessee, 1 Wheat. 304, 330–331 (1816) (Story, J.).
The Court of Appeals for the Armed Forces (CAAF) is not
such a tribunal. Its judges serve 15-year terms and can be
removed by the President for cause. 10 U. S. C. §§ 942(b),
(c). As the majority acknowledges, the CAAF is an Executive
Branch entity, and as such, it cannot be vested with the
judicial power conferred by Article III. If the CAAF were
to do something that either amounts to or requires the exercise
of judicial power, it would be unconstitutional.
After specifying the only institutions that may exercise
the judicial power of the United States, Article III defnes
the permissible scope of the jurisdiction of this Court. Article
III allows us to exercise both “original” and “appellate”
jurisdiction. Our original jurisdiction is limited to “Cases
affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party,” § 2, so it is obvious
that Ortiz's case does not fall within our original jurisdiction.
But what about our appellate jurisdiction? If we directly
reviewed a decision of the CAAF, would that be an exercise
of “appellate” review in the sense meant by Article III?
The answer is no.
A
The understanding of appellate jurisdiction embodied in
Article III has deep roots. Blackstone explained that a
“court of appeal” has jurisdiction only to “reverse or affrm
the judgment of the inferior courts.” 3 W. Blackstone, Commentaries
on the Laws of England 411 (1768) (Blackstone)
Cite as: 585 U. S. 427 (2018) 467
Alito, J., dissenting
(emphasis added). Echoing Blackstone, we have held that
our appellate jurisdiction permits us to act only as “[a] supervising
Court, whose peculiar province it is to correct the errors
of an inferior Court.” Cohens v. Virginia, 6 Wheat.
264, 396 (1821) (Marshall, C. J.). And we have reiterated
that “[a]n appellate jurisdiction necessarily implies some judicial
determination, some judgment, decree, or order of an
inferior tribunal, from which an appeal has been taken.”
The Alicia, 7 Wall. 571, 573 (1869); Webster v. Cooper, 10
How. 54, 55 (1850); 3 J. Story, Commentaries on the Constitution
of the United States § 916, p. 652 (1833) (Story).
Those principles make it easy to understand what Marbury
meant when it held that “[i]t is the essential criterion
of appellate jurisdiction, that it revises and corrects the proceedings
in a cause already instituted, and does not create
that cause.” 1 Cranch, at 175. The cause (or case) must
have been created previously, somewhere else. And as
Blackstone suggested, what “creates” a “case” in the relevant
sense—that is, what transforms a dispute into a “case”
that an appellate court has jurisdiction to resolve—is the
prior submission of the dispute to a tribunal that is lawfully
vested with judicial power.
We held exactly that not long after Marbury, and in a decision
no less seminal. A dispute “becomes a case” for purposes
of Article III, we held, only when it “assume[s] such a
form that the judicial power is capable of acting on it. That
power is capable of acting only when the subject is submitted
to it by a party who asserts his rights in the form prescribed
by law. It then becomes a case.” Osborn v. Bank of United
States, 9 Wheat. 738, 819 (1824) (Marshall, C. J.) (emphasis
added). Hence, in order to create a “case” that Article III
permits us to review on appeal, a litigant must have frst
“submitted” the dispute to another tribunal that was “capable”
of exercising the “judicial power” of the government
to which the tribunal belongs. As discussed, Executive
Branch tribunals cannot fll that essential role.
468 ORTIZ v. UNITED STATES
Alito, J., dissenting
We reiterated this principle in Cohens, another foundational
precedent of the Marshall Court. “To commence a
suit,” Chief Justice Marshall explained, “is to demand something
by the institution of process in a Court of justice.” 6
Wheat., at 408 (emphasis added). Courts of justice are those
tribunals “erected by” the sovereign and properly vested
with the sovereign's own “power of judicature.” 1 Blackstone
257 (1765). When the sovereign is the Federal Government,
that means only courts established under Article
III, for only those courts may exercise the judicial power of
the United States. See Cohens, supra, at 405; The Federalist
No. 78, pp. 469–472 (C. Rossiter ed. 1961) (“the courts of
justice” are those described in Article III).
This view of appellate jurisdiction explains why, in Martin
v. Hunter's Lessee, Justice Story declared that “if . . . congress
should not establish [inferior Article III] courts, the
appellate jurisdiction of the supreme court would have nothing
to act upon, unless it could act upon cases pending in the
state courts.” 1 Wheat., at 339–340. Without decisions of
Article III courts or state courts to review, our appellate
jurisdiction would have lain idle—but not because there
were no Executive Branch tribunals, like the CAAF, deciding
federal questions. To the contrary, executive agencies
have “conduct[ed] adjudications”—often taking “ `judicial'
forms”—“since the beginning of the Republic.” Arlington
v. FCC, 569 U. S. 290, 304–305, n. 4 (2013); Freytag v. Commissioner,
501 U. S. 868, 910 (1991) (Scalia, J., concurring in
part and concurring in judgment); see generally J. Mashaw,
Creating the Administrative Constitution 34–35 (2012).
Such Executive Branch adjudications, however, do not
give rise to “cases” that Article III grants us appellate jurisdiction
to review, precisely because offcers of the Executive
Branch cannot lawfully be vested with judicial power. That
is why Chief Justice Marshall declared, without qualifcation,
that “[a] mandamus to an offcer [of the Executive Branch] is
held to be the exercise of original jurisdiction; but a mandaCite
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Alito, J., dissenting
mus to an inferior court of the United States, is in the nature
of appellate jurisdiction.” Ex parte Crane, 5 Pet. 190, 193
(1831) (emphasis added). Time has not sown doubts about
the truth of that rule. E. g., Verizon Md. Inc. v. Public
Serv. Comm'n of Md., 535 U. S. 635, 644, n. 3 (2002) (“judicial
review of executive action, including determinations made
by a state administrative agency,” involves the exercise
of federal court's “original jurisdiction” rather than its “appellate
jurisdiction,” which covers only “state-court judgments”);
L. Jaffe, Judicial Control of Administrative Action
263, n. 5 (1965).
We have taken this same approach when deciding whether
we may assert appellate jurisdiction to review the decision
of a state tribunal: We look to state law to see whether the
tribunal in question was eligible to receive the State's judicial
power. E. g., Betts v. Brady, 316 U. S. 455, 458–460
(1942); cf. Chicago, R. I. & P. R. Co. v. Stude, 346 U. S. 574,
578–579 (1954) (federal courts cannot exercise removal jurisdiction—
which is appellate in nature, Martin, supra, at
349—while a dispute is still in state “administrative” proceedings;
removal is proper only after “the jurisdiction of
the state district court is invoked”); Verizon Md., supra.
B
This understanding of appellate jurisdiction bars our review
here. The dispute between Ortiz and the Federal Government
has been presented to four tribunals: the initial
court-martial, the Air Force Court of Criminal Appeals, the
CAAF, and this Court. Each of those tribunals belongs to
a branch of the Federal Government. Yet only one of
them—our Court—is capable, under the Constitution, of exercising
the Government's judicial power. Thus, the dispute
between Ortiz and the Federal Government did not become
an Article III “case” until Ortiz petitioned our Court to hear
it. That means our present adjudication—no less than our
adjudication of the dispute between Marbury and Madison—
470 ORTIZ v. UNITED STATES
Alito, J., dissenting
lacks “the essential criterion of appellate jurisdiction.” 1
Cranch, at 175.
The majority does not question this framework; indeed, it
acknowledges that, per Marbury, we can assert jurisdiction
here only if the dispute before us blossomed into an Article
III “case” before it landed at our doorstep. Ante, at 436–
437. Curiously, however, the majority basically proceeds as
though Marbury were our last word on the subject. Ante,
at 436–437, and n 4. That is simply not right. As discussed,
our foundational precedents expressly delineate the
prerequisites to the formation of a constitutional case: The
dispute must, at a minimum, have been previously presented
to and decided by a tribunal lawfully vested with the judicial
power of the government to which it belongs. Nothing of
the sort occurred here; traversing a series of “proceedings”
internal to the Executive Branch, ante, at 437, does not
count. And while there undoubtedly are differences between
this case and Marbury, even some that “lea[p] off the
page,” ante, at 447, those distinctions are irrelevant to our
jurisdiction. The dispositive common ground is that, just as
in Marbury, we are here asked to resolve a dispute that has
been presented only to Executive Branch offcers. The
present dispute thus lies beyond the “peculiar province” of
our appellate jurisdiction to review. Cohens, 6 Wheat., at
396.
C
If there were any doubt that Article III forbids us to take
appeals directly from the Executive Branch, two centuries
of precedent—almost all of it overlooked by the majority—
would put those doubts to rest.
1
First consider the history of our relationship with the
Court of Claims. Congress established that court in 1855 to
adjudicate claims against the United States. § 1, 10 Stat.
612. Congress provided the court's judges with life tenure
Cite as: 585 U. S. 427 (2018) 471
Alito, J., dissenting
and salary protection, just as Article III requires. Ibid.
The Court of Claims was a court of record, and it followed
all the procedures—and possessed all the ancillary powers
(subpoena, contempt, etc.)—that one would expect to fnd in
a court of justice. §§ 3–7, 10 Stat. 613; § 4, 12 Stat. 765–766.
Its decisions had preclusive effect, and were appealable directly
to our Court. §§ 7, 5, id., at 766. If the court rendered
judgment for a claimant, however, the Secretary of the
Treasury could partially revise its decision by modifying the
amount of the judgment to be paid (though not the court's
legal conclusion that the claimant was in the right). § 14,
id., at 768.
Under principles as old as Hayburn's Case, 2 Dall. 409
(1792), a court whose judgments are not self-executing no
more complies with Article III than a tribunal whose judges
are not life tenured. For that reason alone, we dismissed
for lack of jurisdiction the frst time a party appealed a Court
of Claims decision directly to our Court. Gordon v. United
States, 2 Wall. 561 (1865); 117 U. S. Appx. 697 (1864). It did
not even matter that the court's decision in that case had
been against the claimant, and was thus immune from revision,
and would have been fully binding if we had affrmed.
All that mattered was that the Court of Claims, like the
CAAF, lacked an attribute that Article III makes prerequisite
to the vesting of judicial power. Id., at 704. In words
that apply as much here, we said that “the so-called judgments
of the Court of Claims . . . could not be deemed an
exercise of judicial power, and could not, therefore, be revised
by this court.” In re Sanborn, 148 U. S. 222, 224
(1893). It was irrelevant how much the Court of Claims otherwise
“resemble[d] . . . courts whose decisions we review.”
Ante, at 438.
The story does not end there, however. In 1866 Congress
did something it has never done with respect to courtsmartial:
It brought the Court of Claims into compliance with
Article III by repealing the provision that made some of its
472 ORTIZ v. UNITED STATES
Alito, J., dissenting
decisions revisable by the Treasury Secretary. Ch. 19, § 1,
14 Stat. 9. We began hearing appeals from it “immediately.”
United States v. Jones, 119 U. S. 477, 478 (1886). We now
were able to “accep[t] appellate jurisdiction over what was,
necessarily, an exercise of the judicial power which alone
[we] may review.” Glidden Co. v. Zdanok, 370 U. S. 530, 554
(1962) (plurality opinion) (citing Marbury, supra, at 174–175;
emphasis added).
2
Next consider our practice in entertaining petitions for
writs of habeas corpus.
Four years after Marbury, we reaffrmed its core holding
in Ex parte Bollman, 4 Cranch 75 (1807) (Marshall, C. J.).
Two men were taken into federal custody, and their confnement
was approved by an Article III court. United
States v. Bollman, 24 F. Cas. 1189, 1190, 1196 (No. 14,622)
(CC DC 1807). They then petitioned our Court for a writ of
habeas corpus. Applying Marbury, we held that the jurisdiction
“which the court is now asked to exercise is clearly
appellate. It is the revision of a decision of an inferior
court.” 4 Cranch, at 101.
Contrast Bollman with Ex parte Barry, 2 How. 65 (1844),
and In re Metzger, 5 How. 176 (1847). In Barry, the
petitioner sought relief in this Court without frst presenting
his claim to an inferior federal court or a state court, and
so Justice Story explained that “[t]he case, then, is one
avowedly and nakedly for the exercise of original jurisdiction
by this court” and was required to be dismissed. 2 How.,
at 65. In Metzger, “the district judge” had “heard and decided”
the lawfulness of the petitioner's custody, but the judge
had done so only “at his chambers, and not in court.”
5 How., at 191 (emphasis added). His judgment was not provisional,
like some early Court of Claims decisions—but his
status as a judge at chambers was still fatal to our jurisdiction.
In a technical sense, a judge at chambers “exercises a
Cite as: 585 U. S. 427 (2018) 473
Alito, J., dissenting
special authority” distinct from the judicial power vested by
Article III—which meant that the Constitution would permit
us to review his decision in “[t]he exercise of an original
jurisdiction only.” Id., at 191–192.
3
Finally, and especially pertinent here, we have adhered to
the Marbury principle in the many instances in our Court's
history in which we have been asked to review the decision
of a military tribunal. First, in Ex parte Vallandigham, 1
Wall. 243 (1864), an Ohio resident had been tried and sentenced
by a military commission, and its decision became
fnal after being approved up the chain of command. Vallandigham
sought relief directly from our Court, without frst
petitioning a lower federal court. We held that we lacked
jurisdiction. Id., at 254. The military commission, like the
CAAF, was not one of the “courts of the United States” established
under Article III, id., at 251, and thus it could not
exercise the judicial power of the Federal Government, but
could exercise only “a special authority,” id., at 253—just like
the Court of Claims, and just like a judge at chambers.
Given that fact, we held it was “certain” that any review of
its decisions could take place only in the exercise of our original,
and not appellate, jurisdiction. Id., at 251–252. And
despite what the majority seems to think, see ante, at 446,
n. 8, in Vallandigham we recognized that the military tribunal
had “judicial character” in the sense that it had “the authority
. . . to examine, to decide and sentence,” but—in the
same breath—we affrmed the crucial point, namely, that
such character “ `is not judicial . . . in the sense in which
judicial power is granted to the courts of the United States.' ”
1 Wall., at 253 (emphasis added).
Contrast Vallandigham with a pair of decisions we issued
shortly thereafter. In Ex parte Milligan, 4 Wall. 2 (1866),
and Ex parte Yerger, 8 Wall. 85 (1869), we again were asked
474 ORTIZ v. UNITED STATES
Alito, J., dissenting
to grant relief to petitioners who, just like Vallandigham (and
just like Ortiz), were in custody under orders of a non-Article
III military tribunal. But unlike Vallandigham and Ortiz,
Milligan and Yerger frst sought relief in a lower federal
court. Milligan, supra, at 107–108; Yerger, 8 Wall., at 102–
103. That fact made all the difference—again, because of
the rule that we possess, “under the Constitution, an appellate
jurisdiction, to be exercised only in the revision of judicial
decisions.” Id., at 97. The decisions of non-Article III
military courts do not qualify.
Similarly, after World War II we received “more than a
hundred” habeas petitions from individuals in the custody of
“various American or international military tribunals
abroad,” almost none of whom had “frst sought [relief] in a
lower federal court.” R. Fallon, J. Manning, D. Meltzer, &
D. Shapiro, Hart and Wechsler's The Federal Courts and the
Federal System 292 (7th ed. 2015). Consistent with Marbury,
we denied review in every one. Fallon, supra, at 292–
293. Thus, while it is surely true that “not every military
tribunal is alike” in all respects, ante, at 446, before today,
they were at least alike in this respect: Their decisions could
not be reviewed directly here.
D
The unbroken line of authorities discussed above vividly
illustrates the nature and limits of our appellate jurisdiction
as defned in Article III. Today's decision cannot be squared
with those authorities, and the majority barely even tries.
The majority says not a word about the Court of Claims,
even though that tribunal surely had suffcient “courtlikeness,”
ante, at 445 (emphasis deleted), to come within the
scope of our appellate jurisdiction under today's test. Nor
does the majority acknowledge the slew of on-point habeas
decisions—save for Vallandigham, which it waves away by
emphasizing irrelevant factual details (like the commanding
Cite as: 585 U. S. 427 (2018) 475
Alito, J., dissenting
offcer's facial hair). Despite its running refrain that the
CAAF displays a “judicial character,” ante, at 435 (emphasis
added); see also ante, at 437–438, 447, 448, the majority simply
never comes to grips with the substance of our holdings:
We may not hear an appeal directly from any tribunal that
has not been lawfully vested with judicial power. That rule
directly covers the CAAF, and it bars our review.
II
Having said very little about a large body of controlling
precedent, the majority says very much about the fact that
we have long heard appeals directly from territorial courts
and the courts of the District of Columbia. Ante, at 442–
445. The majority claims to be looking for a “powerful reason”
why our appellate jurisdiction should treat courtsmartial
any differently. Ante, at 444. A careful reading of
our decisions shows that we have a good reason ready at
hand—one that is fully consistent with Marbury.
The reason, as I explain below, is this: Congress enjoys a
unique authority to create governments for the Territories
and the District of Columbia and to confer on the various
branches of those governments powers that are distinct from
the legislative, executive, and judicial power of the United
States. Thus, for example, the courts of the District of Columbia
exercise the judicial power of the District, not that of
the United States. The courts of the United States Virgin
Islands exercise the judicial power of that Territory, not the
judicial power of the United States. By contrast, the CAAF
and other military tribunals are indisputably part of the Executive
Branch of the Government of the United States.
They exercise the power of the United States, not that of
any other government, and since they are part of the Executive,
the only power that they may lawfully exercise is executive,
not judicial. Unless they are removed from the Executive
Branch and transformed into Article III courts, they
476 ORTIZ v. UNITED STATES
Alito, J., dissenting
may not exercise any part of the judicial power of the United
States. Nor need they exercise judicial power to carry out
their functions, as we have always understood.
A
We have long said that Congress's authority to govern the
Territories and the District of Columbia stems as much from
its inherent sovereign powers as it does from specifc constitutional
provisions in Articles IV and I. Sere v. Pitot, 6
Cranch 332, 336–337 (1810) (Marshall, C. J.); American Ins.
Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828) (Marshall,
C. J.); Late Corp. of Church of Jesus Christ of Latter-day
Saints v. United States, 136 U. S. 1, 42 (1890); see also
Art. IV, § 3, cl. 2 (Territories); Art. I, § 8, cl. 17 (District).
Perhaps refecting that view, the founding generation understood—
and for more than two centuries, we have recognized—
that Congress's power to govern the Territories and
the District is sui generis in one very specifc respect: When
exercising it, Congress is not bound by the Vesting Clauses
of Articles I, II, and III.
The Vesting Clauses impose strict limits on the kinds of
institutions that Congress can vest with legislative, executive,
and judicial power. See generally Department of
Transportation v. Association of American Railroads, 575
U. S. 43, 67–69 (2015) (Thomas, J., concurring in judgment).
Those limits apply when Congress legislates in every other
area, including when it regulates the Armed Forces. See
Loving v. United States, 517 U. S. 748, 767–768, 771–774
(1996) (Article I nondelegation doctrine applies to congressional
regulation of courts-martial). But it has been our
consistent view that those same limits do not apply when
Congress creates institutions to govern the Territories and
the District. As we said in Benner v. Porter, 9 How. 235,
242 (1850), territorial governments set up by Congress “are
not organized under the Constitution, nor subject to its complex
distribution of the powers of government, as the organic
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Alito, J., dissenting
law; but are the creations, exclusively, of the legislative department.”
Congress may therefore give territorial governments
“a legislative, an executive, and a judiciary, with
such powers as it has been their will to assign to those departments.”
Sere, supra, at 337. That is why we have
often repeated that “[i]n legislating for [the Territories],
Congress exercises the combined powers of the general, and
of a state government.” American Ins. Co., supra, at 546;
Palmore v. United States, 411 U. S. 389, 403 (1973). Just as
the Vesting Clauses do not constrain the States in organizing
their own governments, Dreyer v. Illinois, 187 U. S. 71, 84
(1902), those Clauses do not constrain Congress in organizing
territorial governments.
Thus, unlike any of its other powers, Congress's power
over the Territories allows it to create governments in miniature,
and to vest those governments with the legislative,
executive, and judicial powers, not of the United States, but
of the Territory itself. For that reason we have upheld delegations
of legislative, executive, and judicial power to territorial
governments despite acknowledging that each one
would be incompatible with the Vesting Clauses of the Federal
Constitution if those Clauses applied. See, e. g., Dorr
v. United States, 195 U. S. 138, 153 (1904) (territorial legislature);
Cincinnati Soap Co. v. United States, 301 U. S. 308,
322–323 (1937); Snow v. United States, 18 Wall. 317, 321–
322 (1873) (territorial executive); American Ins. Co., supra
(territorial courts); Sere, supra; Kendall v. United States ex
rel. Stokes, 12 Pet. 524, 619 (1838); Keller v. Potomac Elec.
Power Co., 261 U. S. 428, 442–443 (1923).
The Framers evidently shared this view. Thus, James
Madison took it for granted that Congress could create “a
municipal legislature” for the District of Columbia, The Federalist
No. 43, at 272–273, something that would otherwise
violate the Vesting Clause of Article I, which prohibits Congress
from delegating legislative powers to any other entity,
Wayman v. Southard, 10 Wheat. 1, 42–43 (1825) (Marshall,
478 ORTIZ v. UNITED STATES
Alito, J., dissenting
C. J.). And Justice Story declared, without hesitation, that
“[w]hat shall be the form of government established in the
territories depends exclusively upon the discretion of congress.
Having a right to erect a territorial government,
they may confer on it such powers, legislative, judicial, and
executive, as they may deem best.” 3 Story § 667, at 478.
The upshot is that it is only when Congress legislates for
the Territories and the District that it may lawfully vest
judicial power in tribunals that do not conform to Article III.
And that, in turn, explains why territorial courts and those
of the District—exercising the judicial power of their respective
governments—may have their decisions appealed directly
here. We said as much in United States v. Coe, 155
U. S. 76, 86 (1894), where we explained that because Congress's
“power of government . . . over the Territories . . .
includes the ultimate executive, legislative, and judicial
power, it follows that the judicial action of all inferior courts
established by Congress may, in accordance with the Constitution,
be subjected to [our] appellate jurisdiction.”
The rule of appellate jurisdiction we recognized in Coe is
identical to the rule we have applied ever since Marbury:
Our appellate jurisdiction is proper only if the underlying
decision represents an exercise of judicial power lawfully
vested in the tribunal below. Territorial courts and those
of the District of Columbia have such power; the CAAF does
not, and cannot be given it so long as it fails to comply with
Article III. That is reason enough to treat these tribunals
differently.3
3 It is true that our decisions concerning territorial governments, and
territorial courts in particular, have had their share of critics. See, e. g.,
M. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial
Power 36–39 (1980); Currie, The Constitution in the Supreme Court: The
Powers of the Federal Courts, 1801–1835, 49 U. Chi. L. Rev. 646, 719
(1982); C. Wright, Law of Federal Courts 41 (4th ed. 1983); Fallon, Of
Legislative Courts, Administrative Agencies, and Article III, 101 Harv.
L. Rev. 915, 972 (1988); Bator, The Constitution as Architecture: Legislative
and Administrative Courts Under Article III, 65 Ind. L. J. 233, 240–
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Alito, J., dissenting
B
The majority responds to this conclusion by suggesting,
albeit without much elaboration, that just as the Constitution
gives Congress the “exceptional” power to confer non-
Article III judicial power on the courts of the Territories and
the District of Columbia, the Constitution also gives Congress
the “exceptional” power to vest military tribunals with
non-Article III judicial power. See ante, at 444, and n. 7.
But the Vesting Clauses are exclusive, which means that the
Government's judicial power is not shared between Article
II and Article III. See supra, at 466 (collecting cases); see
also, e. g., Arlington, 569 U. S., at 304–305, n. 4; Ex parte
Randolph, 20 F. Cas. 242, 254 (No. 11,558) (CC Va. 1833)
(Marshall, C. J.) (those whose “offces are held at the pleasure
of the president . . . are, consequently, incapable of exercising
any portion of the judicial power”); Association of American
Railroads, 575 U. S., at 68, 74 (Thomas, J., concurring in
judgment); B&B Hardware, Inc. v. Hargis Industries, Inc.,
575 U. S. 138, 170–171 (2015) (Thomas, J., dissenting). And
neither the majority nor the concurrence ever explains how
the Constitution's various provisions relating to the military,
through their penumbras and emanations, can be said to
produce a hybrid executive-judicial power that is nowhere
mentioned in the Constitution's text, that is foreclosed by
its structure, and that had gone almost entirely unnoticed
before today.
Thus, to make the majority's argument parallel to the argument
regarding the courts of the Territories and the Dis-
242 (1990); G. Lawson & G. Seidman, The Constitution of Empire 149
(2004). But the theory underlying our cases was widely shared at the
founding; our decisions have never seriously questioned it; and, if taken at
face value, it coheres with the rest of our jurisprudence. Seeing no need
to revisit these precedents, I would not disturb them. I certainly would
not do what the majority has done: stretch an arguably anomalous doctrine
and export it (in mutated form) to other contexts where it can only cause
mischief.
480 ORTIZ v. UNITED STATES
Alito, J., dissenting
trict of Columbia, the majority would have to argue that the
military, like the governments of the Territories and the District,
is somehow not part of the Federal Government—“not
organized under the Constitution, . . . as the organic law,”
Benner, 9 How., at 242—but is a government unto itself. To
set out that argument, however, is to expose its weakness,
for nothing could be more antithetical to the Constitution
and to our traditional understanding of the relationship between
the military and civilian authority. The military is
not an entity unto itself, separate from the civilian government
established by the Constitution. On the contrary, it is
part of the Executive Branch of the Government of the
United States, and it is under the command of the President,
who is given the power of Commander in Chief and is ultimately
answerable to the people.
To appreciate the constitutional status of military tribunals,
it is helpful to recall their origins. Courts-martial are
older than the Republic, and they have always been understood
to be an arm of military command exercising executive
power, as opposed to independent courts of law exercising
judicial power. Blackstone declared that the court-martial
system of the British Empire was based solely on “the necessity
of order and discipline” in the military. 1 Blackstone
400. Indeed, Blackstone explained that courts-martial exercise
a “discretionary power” to “infict” “punishment . . . extend[
ing] to death itself,” which was “to be guided by the
directions of the crown,” in express contrast to “the king's
courts,” which dispense “justice according to the laws of the
land.” Id., at 402, 400. The crown's “extensive” power
over the military—exercised, in part, through courtsmartial—
was “executive power.” Id., at 408. Many others
have echoed the point. Thus, “[a]t the time of our separation
[from Britain], . . . a court-martial . . . was not a judicial
body. Its functions were not judicial functions. It was but
an agency of the power of military command to do its bidding.”
Ansell, Military Justice, 5 Cornell L. Q. 1, 6 (1919).
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Alito, J., dissenting
When the United States declared its independence and
prepared for war with Britain, the leaders of the new Nation
were deeply impressed by the British court-martial system
and sought to replicate it. John Adams, who in 1776 drafted
the Continental Articles for the Government of the Army,
was convinced that it would be “in vain” for the American
patriots to seek “a more complete system of military discipline”
than the existing British model. 3 The Works of John
Adams 68 (C. Adams ed. 1851). He and Thomas Jefferson
therefore proposed adopting “the British articles of war,
totidem verbis.” Id., at 68–69. The Continental Congress
agreed. Id., at 69. And when the Constitution and the Bill
of Rights were adopted, no one suggested that this required
any alteration of the existing system of military justice. On
the contrary, as the majority recounts, the First Congress
continued the existing articles of war unchanged. Ante, at
439. Courts-martial ft effortlessly into the structure of
government established by the Constitution. They were instruments
of military command. Under the Constitution,
the President, as the head of the Executive Branch, was
made the Commander in Chief. Art. II, § 2. So the role of
the courts-martial was to assist the President in the exercise
of that command authority.
The ratifcation of the Constitution and the Bill of Rights
did naturally raise some constitutional questions. For example,
founding-era courts-martial adjudicated a long list of
offenses, some carrying capital punishment, including for
crimes involving homicide, assault, and theft. American Articles
of War of 1776, § 13, in 2 W. Winthrop, Military Law
and Precedents 1495–1498 (2d ed. 1896) (Winthrop); see also,
e. g., American Articles of War of 1806, Arts. 39, 51, 54, in id.,
at 1514–1516. In civilian life, a person charged with similar
offenses was entitled to protections, such as trial by jury,
that were unavailable in courts-martial. Moreover, the
Constitution entitled such persons to judicial process—
which courts-martial, lacking the necessary structural at482
ORTIZ v. UNITED STATES
Alito, J., dissenting
tributes of Article III courts, could not afford. So how could
they try serious crimes, including even capital offenses?
The simple answer goes back to the fundamental nature of
courts-martial as instruments of command. As Blackstone
recognized, the enforcement of military discipline, an essential
feature of any effective fghting force, was viewed as an
executive prerogative. It represented the exercise of the
power given to the President as the head of the Executive
Branch and the Commander in Chief and delegated by him
to military commanders. Thus, adjudications by courtsmartial
are executive decisions; courts-martial are not
courts; they do not wield judicial power; and their proceedings
are not criminal prosecutions within the meaning of the
Constitution. As we explained in Milligan, the need to
maintain military order required those serving in the military
to surrender certain rights that they enjoyed in civilian
life and to submit to discipline by the military command.
Although Milligan confrmed the general rule that “it is the
birthright of every American citizen” to have the Federal
Government adjudicate criminal charges against him only in
an Article III court, 4 Wall., at 119, 122, we also stated that
“[e]very one connected with” “the military or naval service
. . . while thus serving, surrenders his right to be tried by the
civil courts,” id., at 123. That is why the historical evidence
strongly suggests that the provisions of the Bill of Rights
were not originally understood to apply to courts-martial.
See Prakash, The Sweeping Domestic War Powers of Congress,
113 Mich. L. Rev. 1337, 1346 (2015); Wiener, Courts-
Martial and the Bill of Rights: The Original Practice II, 72
Harv. L. Rev. 266, 290–291, 294 (1958); see also 1 Winthrop
54, 241, 430, 605; Milligan, supra, at 137–138 (Chase, C. J.,
concurring in judgment).4
4 In fact, “for over half a century af ter the adoption of the Bill of
Rights, its provisions were never invoked in a military situation
save in a single instance,” and in that case “the denial of its applicability
to the military . . . was approved by no less an authority than
Cite as: 585 U. S. 427 (2018) 483
Alito, J., dissenting
Due to reforms adopted in the recent past, it is possible
today to mistake a military tribunal for a regular court and
thus to forget its fundamental nature as an instrument of
military discipline, but no one would have made that mistake
at the time of the founding and for many years thereafter.
Notwithstanding modest reforms in 1874, a court-martial
continued into the 20th century to serve “primarily as a function
or instrument of the executive department to be used
in maintaining discipline in the armed forces. It was therefore
not a `court,' as that term is normally used.” Schlueter,
The Court-Martial: An Historical Survey, 87 Mil. L. Rev. 129,
150–153, 154–155 (1980). Hence, Colonel Winthrop—whom
we have called “the `Blackstone of Military Law,' ” Reid v.
Covert, 354 U. S. 1, 19, n. 38 (1957) (plurality opinion)—
echoed the original Blackstone in describing courts-martial
as “simply instrumentalities of the executive power, provided
by Congress for the President as Commander-in-chief,
to aid him in properly commanding the army and navy and
enforcing discipline therein.” 1 Winthrop 54.
Indeed, Brigadier General Samuel T. Ansell, who served
as acting Judge Advocate General from 1917 to 1919, groused
that the American system at the time of World War I was
still “basically . . . the British system as it existed at the
time of the separation” and described it as one “arising out
of and regulated by the mere power of Military Command
rather than Law.” Ansell, 5 Cornell L. Q., at 1. Around
the same time, Edmund Morgan—who would later help draft
the Uniform Code of Military Justice (UCMJ)—declared it
“too clear for argument that the principle at the foundation
of the existing system is the supremacy of military command.
To maintain that principle, military command dominates
and controls the proceeding from its initiation to the fnal execution
of the sentence. While the actual trial has the
semblance of a judicial proceeding and is required to be conthe
father of the Bill of Rights himself.” Wiener, 72 Harv. L. Rev.,
at 291.
484 ORTIZ v. UNITED STATES
Alito, J., dissenting
ducted pursuant to the forms of law, . . . [i]n truth and in
fact, . . . courts-martial are exactly what Colonel Winthrop
has asserted them to be.” Morgan, The Existing Court-
Martial System and the Ansell Army Articles, 29 Yale L. J.
52, 66 (1919).
For instance, until 1920 the President and commanding offcers
could disapprove a court-martial sentence and order
that a more severe one be imposed instead, for whatever
reason. We twice upheld the constitutionality of this practice,
Swaim v. United States, 165 U. S. 553, 564–566 (1897);
Ex parte Reed, 100 U. S. 13, 20, 23 (1879), which was widely
used during World War I, see Wiener, supra, at 273. Similarly,
until 1920 it was permissible for the same offcer to
serve as both prosecutor and defense counsel in the same
case. West, A History of Command Infuence on the Military
Judicial System, 18 UCLA L. Rev. 1, 14 (1970). Congress
discontinued such practices by statute, but through the
end of World War II, courts-martial remained blunt instruments
to enforce discipline. Schlueter, supra, at 157–158;
see also West, supra, at 8, n. 18.
It is precisely because Article II authorizes the President
to discipline the military without invoking the judicial power
of the United States that the Constitution has always been
understood to permit courts-martial to operate in the manner
described above. Thus, in Dynes v. Hoover, 20 How. 65,
79 (1858), we said that the Constitution makes clear that the
Government's power to “tr[y] and punis[h]” military offenses
“is given without any connection between it and the 3d article
of the Constitution defning the judicial power of the
United States; indeed, that the two powers are entirely independent
of each other.”
Moreover, the principle that the Government need not exercise
judicial power when it adjudicates military offenses
accords with the historical understanding of the meaning of
due process. In the 19th century, it was widely believed
that the constitutional guarantee of due process imposed the
Cite as: 585 U. S. 427 (2018) 485
Alito, J., dissenting
rule that the Government must exercise its judicial power
before depriving anyone of a core private right. See generally
Nelson, Adjudication in the Political Branches, 107
Colum. L. Rev. 559, 562, 568–569, and n. 42 (2007); e. g., Cohen
v. Wright, 22 Cal. 293, 318 (1863) (“The terms `due process
of law' have a distinct legal signifcation, clearly securing to
every person . . . a judicial trial . . . before he can be deprived
of life, liberty, or property”); Murray's Lessee v. Hoboken
Land & Improvement Co., 18 How. 272, 275, 280 (1856) (similar).
Yet for most of our history we held that “[t]o those in
the military or naval service of the United States the military
law is due process.” Reaves v. Ainsworth, 219 U. S.
296, 304 (1911); United States ex rel. French v. Weeks, 259
U. S. 326, 335 (1922); see also Milligan, 4 Wall., at 138 (Chase,
C. J., concurring in judgment) (“[T]he power of Congress, in
the government of the land and naval forces and of the militia,
is not at all affected by the ffth or any other amendment”);
Wiener, 72 Harv. L. Rev., at 279 (in the history of
courts-martial, “of due process of law as a constitutional concept,
there is no trace”); cf. 1 Blackstone 403–404 (explaining
the basic due process rights soldiers surrender upon entering
the army).
This understanding of the power wielded by military tribunals
parallels our current jurisprudence regarding the
authority of other Executive Branch entities to adjudicate
disputes that affect individual rights. An exercise of judicial
power may be necessary for the disposition of private
rights, including the rights at stake in a criminal case.
B&B Hardware, 575 U. S., at 172–173 (Thomas, J., dissenting);
see also Wellness Int'l Network, Ltd. v. Sharif, 575 U. S.
665, 711 (2015) (Thomas, J., dissenting). But the adjudication
of public rights does not demand the exercise of judicial
power. Id., at 711–712. Similarly, enforcement of military
discipline is not a function that demands the exercise of judicial
power, either. Dynes, supra; Murray's Lessee, supra,
at 284.
486 ORTIZ v. UNITED STATES
Alito, J., dissenting
In short, military offenses are “exceptions” to Article III
in the same way that true public rights disputes are exceptions
to Article III: The Federal Government can adjudicate
either one without exercising its judicial power. This means
that when Congress assigns either of these functions to an
Executive Branch tribunal—whether the Patent Trial and
Appeal Board, the Court of Claims, or the CAAF—that does
not imply that the tribunal in question is exercising judicial
power. And the point holds notwithstanding the undoubted
fdelity to “the rule of law” that such offcers bring to their
tasks. Ante, at 440, n. 5. Contrary to the majority's odd
suggestion, acting “in strict compliance with legal rules and
principles” is not a uniquely judicial virtue. Ibid. The
most basic duty of the President and his subordinates, after
all, is to “take Care that the Laws be faithfully executed.”
Art. II, § 3 (emphasis added). Hence, acting with fdelity to
law is something every executive offcer is charged with
doing, but those offcers remain executive offcers all the
same. For that reason, and in light of the history recounted
above, the majority's suggestion that “[t]he military justice
system's essential character” is “judicial,” and has been
“maintained” as such since the “very frst Congress,” ante,
at 437, 439, simply does not square with the actual operation
of the court-martial system or the consensus view of its place
in our constitutional scheme.
C
In response to this history, the majority tries to enlist Colonel
Winthrop as an ally, ante, at 440, and n. 5, but Winthrop
had a frmer grasp than the majority on the distinction
between functions that can be described as “judicial” in a
colloquial sense and functions that represent an exercise of
“judicial power” in the constitutional sense. Thus, while
Winthrop observed that courts-martial resemble constitutional
courts in certain respects, he made those observations
“[n]otwithstanding that the court-martial is only an instruCite
as: 585 U. S. 427 (2018) 487
Alito, J., dissenting
mentality of the executive power having no relation or connection,
in law, with the judicial establishments of the country.”
1 Winthrop 61 (emphasis added). Nor was Winthrop
the only military commentator who employed such terms casually
from time to time. E. g., W. De Hart, Observations
on Military Law 6 (1859) (describing an offcer's authority to
appoint members of a court-martial as “a legislative power”);
id., at 14 (describing courts-martial as “being clothed with judicial
powers”). Indeed, our own Court has frequently described
functions as “judicial” in a colloquial sense, despite
knowing they are executive in the constitutional sense. E. g.,
Smelting Co. v. Kemp, 104 U. S. 636, 640 (1882) (Land Department
offcers “exercise a judicial function” although they are
“part of the administrative and executive branch of the government”);
Murray's Lessee, 18 How., at 280–281; Vallandigham,
1 Wall., at 253; Arlington, 569 U. S., at 304–305, n. 4.
The majority's reliance on Attorney General Bates is even
weaker. Ante, at 439–440. Bates wrote a memo to President
Lincoln opining that when the President acts to “approve
and confrm the sentence of a court martial,” or to
“revis[e] its proceedings,” Congress intended him to “act judicially—
that is, [to] exercise the discretion confded to him
within the limits of law.” 11 Op. Atty. Gen. 20–21 (1864).
Bates was arguing that a President could not revoke a courtmartial
sentence after it had been carried into execution.
He was describing an implicit limit on the power of the President
under the system of military justice established by statute.
His reference to certain Presidential actions as “judicial”
had nothing to do with judicial review, and in
Vallandigham, supra, at 254, we rejected the idea that “the
President's action” in approving a court-martial decision is
an exercise of judicial power that we can review directly.
In sum, the majority has done nothing to undermine the
overwhelming historical consensus that courts-martial permissibly
carry out their functions by exercising executive
rather than judicial power.
488 ORTIZ v. UNITED STATES
Alito, J., dissenting
III
What remains of the majority's analysis boils down to the
assertion that courts-martial “resemble” conventional courts,
ante, at 438, indeed, that “court-likeness” is the dispositive
issue, ante, at 445 (emphasis deleted).
The frst thing to be said in response to this theory is that
we have “never adopted a `looks like' test to determine if
an adjudication” involves an exercise of judicial power. Oil
States, 584 U. S., at 343. On the contrary, we have frequently
repudiated this mode of analysis as utterly inadequate
to police separation-of-powers disputes. See, e. g.,
INS v. Chadha, 462 U. S. 919, 953, n. 16 (1983); Arlington,
supra; Gordon, 117 U. S. Appx., at 699. In fact, of all the
cases on which the majority relies, not a single one suggests
that our appellate jurisdiction turns on the extent to which
the underlying tribunal looks like a court.
In any event, the majority's “looks like” test fails on its
own terms. It is certainly true that today's military justice
system provides many protections for the accused and is
staffed by offcers who perform their duties diligently, responsibly,
and with an appropriate degree of independence.
Nothing I say about the current system should be interpreted
as denigrating that system or as impugning the dedication,
professionalism, and integrity of the offcers who
serve in it, notwithstanding the majority's insistence to the
contrary. Ante, at 440, n. 5. As explained above, military
offcers' undoubted fdelity to law has nothing to do with the
court-martial system's status under our Constitution. That
status is what my point here concerns. And that status has
never changed.
Today's court-martial system was put in place in 1950,
when Congress enacted the UCMJ in response to criticism
following World War II. 64 Stat. 108. Among its innovations,
the UCMJ subjected courts-martial to more elaborate
procedural rules than ever before. It also created a system
of internal appellate tribunals within the military chain of
Cite as: 585 U. S. 427 (2018) 489
Alito, J., dissenting
command. Those entities—which we now call the Army,
Navy-Marine Corps, Air Force, and Coast Guard Courts of
Criminal Appeals and the Court of Appeals for the Armed
Forces—did not exist before 1950. Congress augmented
this system in 1983, for the frst time in American history
providing for direct Supreme Court review of certain decisions
of the highest military tribunal. 97 Stat. 1405–1406;
10 U. S. C. § 867a; 28 U. S. C. § 1259.
Such reforms, as I have indicated, are fully consistent with
the President's overriding duty to “faithfully execut[e]” the
laws. Art. II, § 3. Hence, even after Congress passed the
UCMJ, we continued to recognize that the court-martial system
“ `has always been and continues to be primarily an instrument
of discipline,' ” O'Callahan v. Parker, 395 U. S. 258,
266 (1969), and that “courts-martial are constitutional instruments
to carry out congressional and executive will,” Palmore,
411 U. S., at 404; see also, e. g., Reid, 354 U. S., at 36
(plurality opinion); United States ex rel. Toth v. Quarles, 350
U. S. 11, 17 (1955); Chappell v. Wallace, 462 U. S. 296, 300
(1983). For that reason, even if the majority were to begin
its analysis in 1950, and to confne it to the CAAF—which
the majority has not done—it would still be incorrect to perceive
anything other than executive power at issue here.
An examination of the CAAF confrms this point. The
CAAF's members are appointed by the President for a term
of years, and he may remove them for cause, 10 U. S. C.
§§ 942(b), (c), under a standard we have recognized as “very
broad,” Bowsher v. Synar, 478 U. S. 714, 729 (1986). These
and other provisions of the UCMJ “make clear that [the
CAAF] is within the Executive Branch.” Edmond v.
United States, 520 U. S. 651, 664, n. 2 (1997). For instance,
the CAAF is subject to oversight by the Secretaries of Defense,
Homeland Security, and the military departments, and
its members must meet annually to discuss their work with
members of the military and appointees of the Secretary of
Defense. 10 U. S. C. § 946. The CAAF must review any
490 ORTIZ v. UNITED STATES
Alito, J., dissenting
case a judge advocate general orders it to hear. § 867(a)(2).
And, contrary to the majority's assertion, the CAAF's decisions
are not “fnal (except if we review and reverse them).”
Ante, at 447.
In fact, in the most serious cases that the CAAF reviews—
those in which a court-martial imposes a sentence
of death or dismissal from the Armed Forces—the CAAF's
judgment cannot be executed until the President, the relevant
branch Secretary, or one of his subordinates approves
it. 10 U. S. C. §§ 871(a), (b). That is why the UCMJ provides
that “[a]fter [the CAAF] has acted on a case,” the “convening
authority [shall] take action in accordance with that
decision,” “unless there is to be further action by the President
or the Secretary concerned. ” § 867(e) (emphasis
added). In such cases the “proceedings, fndings, and sentences”
of the court-martial system—including the CAAF's
“appellate review”—are not fnal until approved. § 876.5
Indeed, even if our Court affrms such a judgment, it cannot
be executed until the relevant military authority approves
it—a requirement that is not subject to any timeframe
or substantive standards. See Manual for Courts-Martial,
United States Rule for Courts-Martial 1205(b) (2016).6
5 Thus, Justice Thomas is mistaken when he asserts that “[t]he Executive
Branch has no statutory authority to review or modify the CAAF's
decisions.” Ante, at 460 (concurring opinion). And anyway, even if the
CAAF's decisions were fnal, it would not imply that they are judicial.
Insofar as the Government can adjudicate military offenses without exercising
its judicial power, fnality would be equally consistent with executive
as well as judicial power.
6 For example, in 1996 we granted certiorari to the CAAF and affrmed
the court-martial conviction and capital sentence of Dwight Loving. Loving
v. United States, 517 U. S. 748 (1996). Yet our judgment could not be
deemed fnal—and hence could not be carried out—until the President
approved it. Neither President Clinton nor President Bush would do so.
Loving v. United States, 68 M. J. 1, 3 (CAAF 2009). President Obama
eventually commuted the sentence to life without parole, https://www.
justice.gov/pardon/obama-commutations (as last visited June 21, 2018).
Cite as: 585 U. S. 427 (2018) 491
Alito, J., dissenting
Such revisory powers have always been a feature of the
court-martial system. 1 Winthrop 683. And because the
UCMJ preserves the chain of command's historic revisory
power over the CAAF's most signifcant decisions, there is
no way for us to conclude that the CAAF is “judicial” under
any known defnition of that term. And it should not matter
that Ortiz's own sentence is not subject to approval, just as
it did not matter that the Court of Claims decision at issue in
Gordon was not subject to review by the Treasury Secretary.
This point is elementary. At least since Hayburn's Case, 2
Dall., at 411, n., 413, n., it has been frmly established that it
is “ `radically inconsistent' ” with the “ `judicial power' ” for
any court's judgments, “ `under any circumstances,' ” to “ `be
liable to a reversion, or even suspension,' ” by members of
the Executive or Legislative Branches. Indeed, “[t]he
award of execution is a part, and an essential part of every
judgment passed by a court exercising judicial power.”
Gordon, 117 U. S. Appx., at 702; Plaut v. Spendthrift Farm,
Inc., 514 U. S. 211, 218–219 (1995).
Simply put, the CAAF's Executive Branch status is more
than a label. The CAAF is what we have always thought it
to be: an agent of executive power to aid the Commander
in Chief. It follows that our appellate jurisdiction does not
permit us to review its decisions directly. That conclusion is
unaffected by Congress's decision to give greater procedural
protections to members of the military. Nor would the conclusion
be altered if Congress imported into the military justice
system additional rights and procedures required in the
civilian courts. If Congress wants us to review CAAF decisions,
it can convert that tribunal into an Article III court
or it can make CAAF decisions reviewable frst in a lower
federal court—perhaps one of the regional courts of appeals
or the Federal Circuit—with additional review available
here. But as long as the CAAF retains its current status as
an Executive Branch entity, Congress cannot give our Court
jurisdiction to review its decisions directly.
492 ORTIZ v. UNITED STATES
Alito, J., dissenting
* * *
The arguments in this case might appear technical, but
important interests are at stake. The division between our
Court's original and appellate jurisdiction provoked extended
and impassioned debate at the time of the founding.
See Amar, Marbury, Section 13, and the Original Jurisdiction
of the Supreme Court, 56 U. Chi. L. Rev. 443, 468–478
(1989). The Framers well understood that the resolution of
this dry jurisdictional issue would have practical effects,
ibid., and in a similar vein, the Court's holding that the
CAAF exercises something akin to judicial power will have
unavoidable implications for many important issues that may
arise regarding the operation of the military justice system,
not to mention judicial review of the many decisions handed
down by administrative agencies.
The majority disclaims the latter possibility, ante, at 448,
but its effort is halfhearted at best. In reality there is no
relevant distinction, so far as our appellate jurisdiction is
concerned, between the court-martial system and the “other
adjudicative bodies in the Executive Branch” that the majority
tells us not to worry about. Ibid. The majority cites
the “judicial character . . . of the court-martial system,” as
well as its “constitutional foundations and history,” ibid., but
as I have explained, the constitutional foundations, history,
and fundamental character of military tribunals show that
they are Executive Branch entities that can only permissibly
exercise executive power—just like civilian administrative
agencies.
The Founders erected a high wall around our original
jurisdiction, deliberately confning it to two classes of cases
that were unlikely to touch the lives of most people. See
The Federalist No. 81, at 488. Today's decision erodes that
wall. Because the Court ignores both the wisdom of the
Founders, the clear, consistent teaching of our precedents,
and the unambiguous text of the Constitution, I respectfully
dissent.
OCTOBER TERM, 2017 493
Syllabus
CURRIER v. VIRGINIA
certiorari to the supreme court of virginia
No. 16–1348. Argued February 20, 2018—Decided June 22, 2018
Petitioner Michael Currier was indicted for burglary, grand larceny, and
unlawful possession of a frearm by a convicted felon. Because the
prosecution could introduce evidence of Mr. Currier's prior burglary and
larceny convictions to prove the felon-in-possession charge, and worried
that evidence might prejudice the jury's consideration of the other
charges, Mr. Currier and the government agreed to a severance and
asked the court to try the burglary and larceny charges frst, followed
by a second trial on the felon-in-possession charge. At the frst trial,
Mr. Currier was acquitted. He then sought to stop the second trial,
arguing that it would amount to double jeopardy. Alternatively, he
asked the court to prohibit the state from relitigating at the second trial
any issue resolved in his favor at the frst. The trial court denied his
requests and allowed the second trial to proceed unfettered. The jury
convicted him on the felon-in-possession charge. The Virginia Court of
Appeals rejected his double jeopardy arguments, and the Virginia Supreme
Court summarily affrmed.
Held: The judgment is affrmed.
292 Va. 737, 798 S. E. 2d 164, affrmed.
Justice Gorsuch delivered the opinion of the Court with respect to
Parts I and II, concluding that, because Mr. Currier consented to a severance,
his trial and conviction on the felon-in-possession charge did not
violate the Double Jeopardy Clause, which provides that no person may
be tried more than once “for the same offence.” Mr. Currier argues
that Ashe v. Swenson, 397 U. S. 436, requires a ruling for him. There,
the Court held that the Double Jeopardy Clause barred a defendant's
prosecution for robbing a poker player because the defendant's acquittal
in a previous trial for robbing a different poker player from the same
game established that the defendant “was not one of the robbers,” id.,
at 446. Ashe's suggestion that the relitigation of an issue may amount
to the impermissible relitigation of an offense represented a signifcant
innovation in this Court's jurisprudence. But whatever else may be
said about Ashe, the Court has emphasized that its test is a demanding
one. Ashe forbids a second trial only if to secure a conviction the prosecution
must prevail on an issue the jury necessarily resolved in the defendant's
favor in the frst trial. A second trial is not precluded simply
because it is unlikely—or even very unlikely—that the original jury ac494
CURRIER v. VIRGINIA
Syllabus
quitted without fnding the fact in question. To say that the second
trial is tantamount to a trial of the same offense as the frst and thus
forbidden by the Double Jeopardy Clause, the Court must be able to say
that it would have been irrational for the jury in the frst trial to acquit
without fnding in the defendant's favor on a fact essential to a conviction
in the second.
Bearing all that in mind, a critical difference emerges between this
case and Ashe: Even assuming that Mr. Currier's second trial qualifed
as the retrial of the same offense under Ashe, he consented to the second
trial. In Jeffers v. United States, 432 U. S. 137, where the issue was a
trial on a greater offense after acquittal on a lesser included offense, the
Court held that the Double Jeopardy Clause is not violated when the
defendant “elects to have the . . . offenses tried separately and persuades
the trial court to honor his election.” Id., at 152. If consent can overcome
a traditional double jeopardy complaint about a second trial for a
greater offense, it must also suffce to overcome a double jeopardy complaint
under Ashe's more innovative approach. Holding otherwise
would be inconsistent not only with Jeffers but with other cases too.
See, e. g., United States v. Dinitz, 424 U. S. 600. And cases Mr. Currier
cites for support, e. g., Harris v. Washington, 404 U. S. 55, merely applied
Ashe's test and concluded that a second trial was impermissible.
They do not address the question whether the Double Jeopardy Clause
prevents a second trial when the defendant consents to it.
Mr. Currier contends that he had no choice but to seek two trials,
because evidence of his prior convictions would have tainted the jury's
consideration of the burglary and larceny charges. This is not a case,
however, where the defendant had to give up one constitutional right to
secure another. Instead, Mr. Currier faced a lawful choice between two
courses of action that each bore potential costs and rationally attractive
benefts. Diffcult strategic choices are “not the same as no choice,”
United States v. Martinez-Salazar, 528 U. S. 304, 315, and the Constitution
“does not . . . forbid requiring” a litigant to make them, McGautha
v. California, 402 U. S. 183, 213. Pp. 498–503.
Justice Gorsuch, joined by The Chief Justice, Justice Thomas,
and Justice Alito, concluded in Part III that civil issue preclusion
principles cannot be imported into the criminal law through the Double
Jeopardy Clause to prevent parties from retrying any issue or introducing
any evidence about a previously tried issue. Mr. Currier argues
that, even if he consented to a second trial, that consent did not extend
to the relitigation of any issues the frst jury resolved in his favor.
Even assuming for argument's sake that Mr. Currier's consent to holding
a second trial didn't more broadly imply consent to the manner it was
conducted, his argument must be rejected on a narrower ground as reCite
as: 585 U. S. 493 (2018) 495
Syllabus
futed by the text and history of the Double Jeopardy Clause and by this
Court's contemporary double jeopardy cases, e. g., Blockburger v. United
States, 284 U. S. 299; Dowling v. United States, 493 U. S. 342. Nor is it
even clear that civil preclusion principles would help defendants like
Mr. Currier. See, e. g., Bravo-Fernandez v. United States, 580 U. S.
5, 10. Grafting civil preclusion principles onto the criminal law could
also invite ironies—e. g., making severances more costly might make
them less freely available. Pp. 503–510.
Justice Kennedy concluded that, because Parts I and II of the
Court's opinion resolve this case in a full and proper way, the extent of
the Double Jeopardy Clause protections discussed and defned in Ashe
need not be reexamined here. Pp. 511–512.
Gorsuch, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I and II, in which Roberts,
C. J., and Kennedy, Thomas, and Alito, JJ., joined, and an opinion with
respect to Part III, in which Roberts, C. J., and Thomas and Alito,
JJ., joined. Kennedy, J., fled an opinion concurring in part, post, p. 511.
Ginsburg, J., fled a dissenting opinion, in which Breyer, Sotomayor,
and Kagan, JJ., joined, post, p. 512.
Jeffrey L. Fisher argued the cause for petitioner. With
him on the briefs were David T. Goldberg, Pamela S. Karlan,
and J. Addison Barnhardt.
Matthew R. McGuire, Acting Deputy Solicitor General of
Virginia, argued the cause for respondent. With him on the
brief were Mark. R. Herring, Attorney General of Virginia,
Trevor S. Cox, Acting Solicitor General, and Virginia B.
Theisen, Senior Assistant Attorney General.
Erica L. Ross argued the cause for the United States as
amicus curiae urging affrmance. With her on the brief
were Solicitor General Francisco, Acting Assistant Attorney
General Cronan, Deputy Solicitor General Dreeben,
Eric J. Feigin, and Alexander P. Robbins.*
*Briefs of amici curiae urging reversal were fled for the Cato Institute
by David Debold, Clark M. Neily III, and Jay R. Schweikert; and for the
National Association of Criminal Defense Lawyers by R. Stanton Jones,
Lisa S. Blatt, Anthony J. Franze, Elie Salamon, and Jonathan Hacker.
A brief of amici curiae urging affrmance was fled for the State of
Indiana et al. by Curtis T. Hill, Jr., Attorney General of Indiana, Thomas
M. Fisher, Solicitor General, and Aaron T. Craft, Lara Langeneckert, and
496 CURRIER v. VIRGINIA
Opinion of the Court
Justice Gorsuch announced the judgment of the Court
and delivered the opinion of the Court with respect to Parts
I and II, and an opinion with respect to Part III, in which
The Chief Justice, Justice Thomas, and Justice Alito
join.
About to face trial, Michael Currier worried the prosecution
would introduce prejudicial but probative evidence
against him on one count that could infect the jury's deliberations
on others. To address the problem, he agreed to sever
the charges and hold two trials instead of one. But after
the frst trial fnished, Mr. Currier turned around and argued
that proceeding with the second would violate his right
against double jeopardy. All of which raises the question:
Can a defendant who agrees to have the charges against him
considered in two trials later successfully argue that the second
trial offends the Fifth Amendment's Double Jeopardy
Clause?
I
This case began when police dredged up a safe full of guns
from a Virginia river. Paul Garrison, the safe's owner, had
reported it stolen from his home. Before the theft, Mr. Garrison
said, it contained not just the guns but also $71,000 in
cash. Now, most of the money was missing. As the investigation
unfolded, the police eventually found their way to
Mr. Garrison's nephew. Once confronted, the nephew
quickly confessed. Along the way, he pointed to Michael
Julia C. Payne, Deputy Attorneys General, and by the Attorneys General
for their respective States as follows: Steve Marshall of Alabama, Leslie
Rutledge of Arkansas, Cynthia H. Coffman of Colorado, Derek Schmidt
of Kansas, Jeff Landry of Louisiana, Janet T. Mills of Maine, Bill Schuette
of Michigan, Timothy C. Fox of Montana, Doug Peterson of Nebraska,
Joshua H. Stein of North Carolina, Wayne Stenehjem of North Dakota,
Mike Hunter of Oklahoma, Josh Shapiro of Pennsylvania, Alan Wilson of
South Carolina, Marty J. Jackley of South Dakota, Ken Paxton of Texas,
Sean D. Reyes of Utah, Brad D. Schimel of Wisconsin, and Peter K.
Michael of Wyoming.
Cite as: 585 U. S. 493 (2018) 497
Opinion of the Court
Currier as his accomplice. A neighbor also reported that
she saw Mr. Currier leave the Garrison home around the
time of the crime. On the strength of this evidence, a grand
jury indicted Mr. Currier for burglary, grand larceny, and
unlawful possession of a frearm by a convicted felon. The
last charge followed in light of Mr. Currier's previous convictions
for (as it happens) burglary and larceny.
Because the prosecution could introduce evidence of his
prior convictions to prove the felon-in-possession charge, and
worried that the evidence might prejudice the jury's consideration
of the other charges, Mr. Currier and the government
agreed to a severance. They asked the court to try the burglary
and larceny charges frst. Then, they said, the felonin-
possession charge could follow in a second trial. Some
jurisdictions routinely refuse requests like this. Instead,
they seek to address the risk of prejudice with an instruction
directing the jury to consider the defendant's prior convictions
only when assessing the felon-in-possession charge.
See Brief for State of Indiana et al. as Amici Curiae 10.
Other jurisdictions allow parties to stipulate to the defendant's
past convictions so the particulars of those crimes don't
reach the jury's ears. Ibid. Others take a more protective
approach yet and view severance requests with favor. Id.,
at 11–12; see, e. g., Hackney v. Commonwealth, 28 Va. App.
288, 294–296, 504 S. E. 2d 385, 389 (1998) (en banc). Because
Virginia falls into this last group, the trial court granted the
parties' joint request in this case.
The promised two trials followed. At the frst, the prosecution
produced the nephew and the neighbor who testifed
to Mr. Currier's involvement in the burglary and larceny.
But Mr. Currier argued that the nephew lied and the neighbor
was unreliable and, in the end, the jury acquitted.
Then, before the second trial on the frearm charge could
follow, Mr. Currier sought to stop it. Now, he argued, holding
a second trial would amount to double jeopardy. Alternatively
and at the least, he asked the court to forbid the
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Opinion of the Court
government from relitigating in the second trial any issue
resolved in his favor at the frst. So, for example, he said
the court should exclude from the new proceeding any evidence
about the burglary and larceny. The court replied
that it could fnd nothing in the Double Jeopardy Clause requiring
either result so it allowed the second trial to proceed
unfettered. In the end, the jury convicted Mr. Currier on
the felon-in-possession charge.
Before the Virginia Court of Appeals, Mr. Currier repeated
his double jeopardy arguments without success. The
court held that the “concern that lies at the core” of the
Double Jeopardy Clause—namely, “the avoidance of prosecutorial
oppression and overreaching through successive
trials”—had no application here because the charges were
severed for Mr. Currier's beneft and at his behest. 65 Va.
App. 605, 609–613, 779 S. E. 2d 834, 836–837 (2015). The
Virginia Supreme Court summarily affrmed. 292 Va. 737,
798 S. E. 2d 164 (2016). Because courts have reached conficting
results on the double jeopardy arguments Mr. Currier
pressed in this case, we granted certiorari to resolve
them. 583 U. S. 931 (2017).
II
The Double Jeopardy Clause, applied to the States through
the Fourteenth Amendment, provides that no person may be
tried more than once “for the same offence.” This guarantee
recognizes the vast power of the sovereign, the ordeal of
a criminal trial, and the injustice our criminal justice system
would invite if prosecutors could treat trials as dress rehearsals
until they secure the convictions they seek. See
Green v. United States, 355 U. S. 187, 188 (1957). At the
same time, this Court has said, the Clause was not written
or originally understood to pose “an insuperable obstacle to
the administration of justice” in cases where “there is no
semblance of [these] type[s] of oppressive practices.” Wade
v. Hunter, 336 U. S. 684, 688–689 (1949).
Cite as: 585 U. S. 493 (2018) 499
Opinion of the Court
On which side of the line does our case fall? Mr. Currier
suggests this Court's decision in Ashe v. Swenson, 397 U. S.
436 (1970), requires a ruling for him. There, the government
accused a defendant of robbing six poker players in a
game at a private home. At the frst trial, the jury acquitted
the defendant of robbing one victim. Then the State
sought to try the defendant for robbing a second victim.
This Court held the second prosecution violated the Double
Jeopardy Clause. Id., at 446. To be sure, the Clause
speaks of barring successive trials for the same offense.
And, to be sure, the State sought to try the defendant for a
different robbery. But, the Court reasoned, because the
frst jury necessarily found that the defendant “was not one
of the robbers,” a second jury could not “rationally” convict
the defendant of robbing the second victim without calling
into question the earlier acquittal. Id., at 445–446. In
these circumstances, the Court indicated, any relitigation of
the issue whether the defendant participated as “one of the
robbers” would be tantamount to the forbidden relitigation
of the same offense resolved at the frst trial. Id., at 445;
see Yeager v. United States, 557 U. S. 110, 119–120 (2009).
Ashe's suggestion that the relitigation of an issue can
sometimes amount to the impermissible relitigation of an offense
represented a signifcant innovation in our jurisprudence.
Some have argued that it sits uneasily with this
Court's double jeopardy precedent and the Constitution's
original meaning. See, e. g., Ashe, supra, at 460–461
(Burger, C. J., dissenting); Yeager, supra, at 127–128 (Scalia,
J., dissenting). But whatever else may be said about Ashe,
we have emphasized that its test is a demanding one. Ashe
forbids a second trial only if to secure a conviction the prosecution
must prevail on an issue the jury necessarily resolved in
the defendant's favor in the frst trial. See Yeager, 557 U. S.,
at 119–120; id., at 127 (Kennedy, J., concurring in part and
concurring in judgment); id., at 133–134 (Alito, J., dissent500
CURRIER v. VIRGINIA
Opinion of the Court
ing). A second trial “is not precluded simply because it is
unlikely—or even very unlikely—that the original jury acquitted
without fnding the fact in question.” Ibid. To say
that the second trial is tantamount to a trial of the same
offense as the frst and thus forbidden by the Double Jeopardy
Clause, we must be able to say that “it would have been
irrational for the jury” in the frst trial to acquit without
fnding in the defendant's favor on a fact essential to a conviction
in the second. Id., at 127 (opinion of Kennedy, J.) (internal
quotation marks omitted).
Bearing all that in mind, a critical difference immediately
emerges between our case and Ashe. Even assuming without
deciding that Mr. Currier's second trial qualifed as the
retrial of the same offense under Ashe, he consented to it.
Nor does anyone doubt that trying all three charges in one
trial would have prevented any possible Ashe complaint
Mr. Currier might have had.
How do these features affect the double jeopardy calculus?
A precedent points the way. In Jeffers v. United States, 432
U. S. 137 (1977), the defendant sought separate trials on each
of the counts against him to reduce the possibility of prejudice.
The court granted his request. After the jury convicted
the defendant in the frst trial of a lesser included
offense, he argued that the prosecution could not later try
him for a greater offense. In any other circumstance the
defendant likely would have had a good argument. Historically,
courts have treated greater and lesser included offenses
as the same offense for double jeopardy purposes, so
a conviction on one normally precludes a later trial on the
other. Id., at 150–151 (plurality opinion); Brown v. Ohio, 432
U. S. 161, 168–169 (1977) (collecting authorities). But, Jeffers
concluded, it's different when the defendant consents to
two trials where one could have done. If a single trial on
multiple charges would suffce to avoid a double jeopardy
complaint, “there is no violation of the Double Jeopardy Clause
when [the defendant] elects to have the . . . offenses tried
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separately and persuades the trial court to honor his election.”
432 U. S., at 152.
What was true in Jeffers, we hold, can be no less true here.
If a defendant's consent to two trials can overcome concerns
lying at the historic core of the Double Jeopardy Clause, so
too we think it must overcome a double jeopardy complaint
under Ashe. Nor does anything in Jeffers suggest that the
outcome should be different if the frst trial yielded an acquittal
rather than a conviction when a defendant consents to
severance. While we acknowledge that Ashe's protections
apply only to trials following acquittals, as a general rule,
the Double Jeopardy Clause “ `protects against a second
prosecution for the same offense after conviction' ” as well
as “ `against a second prosecution for the same offense after
acquittal.' ” Brown, supra, at 165. Because the Clause applies
equally in both situations, consent to a second trial
should in general have equal effect in both situations.
Holding otherwise would introduce an unwarranted inconsistency
not just with Jeffers but with other precedents too.
In United States v. Dinitz, 424 U. S. 600 (1976), for example,
this Court held that a defendant's mistrial motion implicitly
invited a second trial and was enough to foreclose any double
jeopardy complaint about it. In reaching this holding, the
Court expressly rejected “the contention that the permissibility
of a retrial . . . depends on a knowing, voluntary, and intelligent
waiver” from the defendant. Id., at 609–610, n. 11. Instead,
it explained, none of the “ `prosecutorial or judicial
overreaching' ” forbidden by the Constitution can be found
when a second trial follows thanks to the defendant's motion.
Id. at 607. In United States v. Scott, 437 U. S. 82 (1978),
this Court likewise held that a defendant's motion effectively
invited a retrial of the same offense, and “the Double Jeopardy
Clause, which guards against Government oppression,
does not relieve a defendant from the consequences of [a]
voluntary choice” like that. Id., at 96, 99; see also Evans v.
Michigan, 568 U. S. 313, 326 (2013) (“[R]etrial is generally
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Opinion of the Court
allowed [when] the defendant consents to a disposition that
contemplates reprosecution”). While relinquishing objections
sometimes turns on state or federal procedural rules,
these precedents teach that consenting to two trials when
one would have avoided a double jeopardy problem precludes
any constitutional violation associated with holding a second
trial. In these circumstances, our cases hold, the defendant
wins a potential beneft and experiences none of the prosecutorial
“oppression” the Double Jeopardy Clause exists to prevent.
Nor, again, can we discern a good reason to treat
Ashe double jeopardy complaints more favorably than traditional
ones when a defendant consents to severance.
Against these precedents, Mr. Currier asks us to consider
others, especially Harris v. Washington, 404 U. S. 55 (1971)
(per curiam), and Turner v. Arkansas, 407 U. S. 366 (1972)
(per curiam). But these cases merely applied Ashe's test
and concluded that a second trial was impermissible. They
did not address the question whether double jeopardy protections
apply if the defendant consents to a second trial.
Meanwhile, as we've seen, Jeffers, Dinitz, and Scott focus on
that question directly and make clear that a defendant's consent
dispels any specter of double jeopardy abuse that holding
two trials might otherwise present. This Court's teachings
are consistent and plain: The “Clause, which guards
against Government oppression, does not relieve a defendant
from the consequences of his voluntary choice.” Scott,
supra, at 99.
Mr. Currier replies that he had no real choice but to seek
two trials. Without a second trial, he says, evidence of his
prior convictions would have tainted the jury's consideration
of the burglary and larceny charges. And, he notes, Virginia
law guarantees a severance in cases like his unless the
defendant and prosecution agree to a single trial. But no
one disputes that the Constitution permitted Virginia to try
all three charges at once with appropriate cautionary instructions.
So this simply isn't a case where the defendant
Cite as: 585 U. S. 493 (2018) 503
Opinion of Gorsuch, J.
had to give up one constitutional right to secure another.
Instead, Mr. Currier faced a lawful choice between two
courses of action that each bore potential costs and rationally
attractive benefts. It might have been a hard choice. But
litigants every day face diffcult decisions. Whether it's the
defendant who fnds himself in the shoes of Jeffers, Dinitz,
and Scott and forced to choose between allowing an imperfect
trial to proceed or seeking a second that promises its
own risks. Or whether it's the defendant who must decide
between exercising his right to testify in his own defense or
keeping impeachment evidence of past bad acts from the
jury. See, e. g., Brown v. United States, 356 U. S. 148, 154–
157 (1958). This Court has held repeatedly that diffcult
strategic choices like these are “not the same as no choice,”
United States v. Martinez-Salazar, 528 U. S. 304, 315 (2000),
and the Constitution “does not . . . forbid requiring” a litigant
to make them, McGautha v. California, 402 U. S. 183, 213
(1971).
III
Even if he voluntarily consented to holding the second
trial, Mr. Currier argues, that consent did not extend to the
relitigation of any issues the frst jury resolved in his favor.
So, Mr. Currier says, the court should have excluded evidence
suggesting he possessed the guns in Mr. Garrison's
home, leaving the prosecution to prove that he possessed
them only later, maybe down by the river. To support this
argument, Mr. Currier points to issue preclusion principles
in civil cases and invites us to import them for the frst time
into the criminal law through the Double Jeopardy Clause.
In his view, the Clause should do much more than bar the
retrial of the same offense (or crimes tantamount to the same
offense under Ashe); it should be read now to prevent the
parties from retrying any issue or introducing any evidence
about a previously tried issue. While the dissent today
agrees with us that the trial court committed no double jeopardy
violation in holding the second trial, on this alternative
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argument it sides with Mr. Currier. See post, at 522, 523,
525–526.
We cannot. Even assuming for argument's sake that
Mr. Currier's consent to holding a second trial didn't more
broadly imply consent to the manner it was conducted, we
must reject his argument on a narrower ground. Just last
Term this Court warned that issue preclusion principles
should have only “guarded application . . . in criminal cases.”
Bravo-Fernandez v. United States, 580 U. S. 5, 10 (2016).
We think that caution remains sound.
Mr. Currier's problems begin with the text of the Double
Jeopardy Clause. As we've seen, the Clause speaks not
about prohibiting the relitigation of issues or evidence but
offenses. Contrast this with the language of the Reexamination
Clause. There, the Seventh Amendment says that
“[i]n Suits at common law . . . no fact tried by a jury, shall
be otherwise re-examined in any Court of the United States,
than according to the rules of the common law.” (Emphasis
added.) Words in one provision are, of course, often understood
“by comparing them with other words and sentences
in the same instrument.” 1 J. Story, Commentaries on the
Constitution of the United States § 400, p. 384 (1833). So it's
diffcult to ignore that only in the Seventh Amendment—and
only for civil suits—can we fnd anything resembling contemporary
issue preclusion doctrine.
What problems the text suggests, the original public understanding
of the Fifth Amendment confrms. The Double
Jeopardy Clause took its cue from English common law pleas
that prevented courts from retrying a criminal defendant
previously acquitted or convicted of the crime in question.
See Scott, 437 U. S., at 87; 4 W. Blackstone, Commentaries
on the Laws of England 329–330 (1769). But those pleas
barred only repeated “prosecution for the same identical act
and crime,” not the retrial of particular issues or evidence.
Id., at 330 (emphasis added). As Sir Matthew Hale
explained:
Cite as: 585 U. S. 493 (2018) 505
Opinion of Gorsuch, J.
“If A. commit a burglary . . . and likewise at the same
time steal goods out of the house, if he be indicted of
larciny for the goods and acquitted, yet he may be indicted
for the burglary notwithstanding the acquittal.
And è converso, if indicted for the burglary and acquitted,
yet he may be indicted of the larciny, for they are
several offenses, tho committed at the same time.” 2
M. Hale, The History of the Pleas of the Crown, ch. 31,
pp. 245–246 (1736 ed.).
Both English and early American cases illustrate the
point. In Turner's Case, 30 Kel. J. 30, 84 Eng. Rep. 1068
(K. B. 1663), for example, a jury acquitted the defendant of
breaking into a home and stealing money from the owner.
Even so, the court held that the defendant could be tried
later for the theft of money “stolen at the same time” from
the owner's servant. Ibid. In Commonwealth v. Roby, 12
Pickering 496 (Mass. 1832), the court, invoking Blackstone,
held that “[i]n considering the identity of the offence, it must
appear by the plea, that the offence charged in both cases
was the same in law and in fact.” Id., at 504. The court
explained that a second prosecution isn't precluded “if the
offences charged in the two indictments be perfectly distinct
in point of law, however nearly they may be connected in
fact.” Ibid. (emphasis added). Another court even ruled
“that a man acquitted for stealing the horse hath yet been
arraigned and convict for stealing the saddle, tho both were
done at the same time.” 2 Hale, supra, at 246. These authorities
and many more like them demonstrate that early
courts regularly confronted cases just like ours and expressly
rejected the notion that the Double Jeopardy Clause
barred the relitigation of issues or facts. See also Grady v.
Corbin, 495 U. S. 508, 533–535 (1990) (Scalia, J., dissenting)
(collecting authorities); 2 W. Hawkins, Pleas of the Crown,
ch. 35, p. 371 (1726 ed.); 1 J. Chitty, Criminal Law 452–457
(1816); M. Friedland, Double Jeopardy 179, and n. 2 (1969).
Any suggestion that our case presents a new phenomenon,
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then, risks overlooking this long history. See post, at 515–
516 (Ginsburg, J., dissenting).
This Court's contemporary double jeopardy cases confrm
what the text and history suggest. Under Blockburger v.
United States, 284 U. S. 299 (1932), the courts apply today
much the same double jeopardy test they did at the founding.
Id., at 304. To prevent a second trial on a new charge, the
defendant must show an identity of statutory elements between
the two charges against him; it's not enough that “a
substantial overlap [exists] in the proof offered to establish
the crimes.” Iannelli v. United States, 420 U. S. 770, 785,
n. 17 (1975) (emphasis added). Of course, Ashe later pressed
Blockburger's boundaries by suggesting that, in narrow circumstances,
the retrial of an issue can be considered tantamount
to the retrial of an offense. See Yeager, 557 U. S., at
119. But, as we've seen, even there a court's ultimate focus
remains on the practical identity of offenses, and the only
available remedy is the traditional double jeopardy bar
against the retrial of the same offense—not a bar against the
relitigation of issues or evidence. See id., at 119–120.
Even at the outer reaches of our double jeopardy jurisprudence,
then, this Court has never sought to regulate the retrial
of issues or evidence in the name of the Double Jeopardy
Clause.
Nor in acknowledging this do we plow any new ground.
In Dowling v. United States, 493 U. S. 342 (1990), the defendant
faced charges of bank robbery. At trial, the prosecution
introduced evidence of the defendant's involvement in an earlier
crime, even though the jury in that case had acquitted.
Like Mr. Currier, the defendant in Dowling argued that the
trial court should have barred relitigation of an issue resolved
in his favor in an earlier case and therefore excluded
evidence of the acquitted offense. But the Court refused
the request and in doing so expressly “decline[d] to extend
Ashe . . . to exclude in all circumstances, as [the defendant]
would have it, relevant and probative evidence that is otherwise
admissible under the Rules of Evidence simply because
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Opinion of Gorsuch, J.
it relates to alleged criminal conduct for which a defendant
has been acquitted.” Id., at 348. If a second trial is permissible,
the admission of evidence at that trial is governed
by normal evidentiary rules—not by the terms of the Double
Jeopardy Clause. “So far as merely evidentiary . . . facts
are concerned,” the Double Jeopardy Clause “is inoperative.”
Yates v. United States, 354 U. S. 298, 338 (1957).
On its own terms, too, any effort to transplant civil preclusion
principles into the Double Jeopardy Clause would
quickly meet trouble. While the Clause embodies a kind of
“claim preclusion” rule, even this rule bears little in common
with its civil counterpart. In civil cases, a claim generally
may not be tried if it arises out of the same transaction or
common nucleus of operative facts as another already tried.
Restatement (Second) of Judgments § 19 (1980); Moschzisker,
Res Judicata, 38 Yale L. J. 299, 325 (1929). But in a criminal
case, Blockburger precludes a trial on an offense only if a
court has previously heard the same offense as measured by
its statutory elements. 284 U. S., at 304. And this Court
has emphatically refused to import into criminal double jeopardy
law the civil law's more generous “same transaction” or
same criminal “episode” test. See Garrett v. United States,
471 U. S. 773, 790 (1985); see also Ashe, 397 U. S., at 448 (Harlan,
J., concurring).
It isn't even clear that civil preclusion principles would
help defendants like Mr. Currier. Issue preclusion addresses
the effect in a current case of a prior adjudication in
another case. So it doesn't often have much to say about
the preclusive effects of rulings “within the framework of a
continuing action.” 18A C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure § 4434 (2d ed. 2002); see also
18B id., § 4478. Usually, only the more fexible law of the
case doctrine governs the preclusive effect of an earlier decision
“within a single action.” Ibid. And that doctrine might
counsel against affording conclusive effect to a prior jury
verdict on a particular issue when the parties agreed to hold
a second trial covering much the same terrain at a later stage
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of the proceedings. Besides, even if issue preclusion is the
right doctrine for cases like ours, its application usually depends
“on `an underlying confdence that the result achieved
in the initial litigation was substantially correct.' ” Bravo-
Fernandez, 580 U. S., at 10 (quoting Standefer v. United
States, 447 U. S. 10, 23, n. 18 (1980)). As a result, the doctrine
does not often bar the relitigation of issues when “[t]he
party against whom preclusion is sought could not, as a matter
of law, have obtained review of the judgment in the initial
action. ” Restatement (Second) of Judgments § 28. In
criminal cases, of course, the government cannot obtain appellate
review of acquittals. So a faithful application of civil
preclusion principles in our case and others like it might
actually militate against fnding preclusion. See Bravo-
Fernandez, supra, at 10; Standefer, supra, at 22–23, and
n. 18.
Neither Mr. Currier nor the dissent offers a persuasive
reply to these points. They cannot dispute that the text of
the Double Jeopardy Clause, which bars a prosecution for
the same offense, is inconsistent with an issue preclusion rule
that purports to bar a “second prosecution involv[ing] . . . a
different `offense.' ” Post, at 515. They decline to “engage”
with the Clause's history, though the dissent appears to
agree that the Clause was not originally understood to include
an issue preclusion rule. See post, at 515–516, 524.
Neither Mr. Currier nor the dissent seeks to show that, even
taken on their own terms, civil issue preclusion principles
would apply to cases like this one. Without text, history, or
logic to stand on, the dissent leans heavily on a comparison
to Dowling. In Dowling, the dissent emphasizes, the two
trials involved different criminal episodes while the two
trials here addressed the same set of facts. But Dowling
did not rest its holding on this feature and the dissent does
not explain its relevance. If issue preclusion really did exist
in criminal law, why wouldn't it preclude the retrial of any
previously tried issue, regardless of whether that issue stems
from the same or a different “criminal episode”?
Cite as: 585 U. S. 493 (2018) 509
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In the end, Mr. Currier and the dissent must emphasize
various policy reasons for adopting a new rule of issue preclusion
into the criminal law. See post, at 515–516, 519–520.
They contend that issue preclusion is “needed” to combat the
“prosecutorial excesses” that could result from the proliferation
of criminal offenses, post, at 515–516, though we aren't
sure what to make of this given the dissent's later claim that
“issue preclusion requires no showing of prosecutorial overreaching,”
post, at 519. In any event, there are risks with
the approach Mr. Currier and the dissent propose. Consider,
for example, the ironies that grafting civil preclusion
principles onto the criminal law could invite. Issue preclusion
is sometimes applied offensively against civil defendants
who lost on an issue in an earlier case. Parklane Hosiery
Co. v. Shore, 439 U. S. 322, 331–332 (1979). By parallel logic,
could we expect the government to invoke the doctrine to
bar criminal defendants from relitigating issues decided
against them in a prior trial? It's an outcome few defendants
would welcome but one some have already promoted. See,
e. g., Kennelly, Precluding the Accused: Offensive Collateral
Estoppel in Criminal Cases, 80 Va. L. Rev. 1379, 1380–1381,
1416, 1426–1427 (1994); Vestal, Issue Preclusion and Criminal
Prosecutions, 65 Iowa L. Rev. 281, 297, 320–321 (1980).
Maybe worse yet, consider the possible effect on severances.
Today, some state courts grant severance motions liberally
to beneft defendants. But what would happen if this Court
unilaterally increased the costs associated with severance in
the form of allowing issue preclusion for defendants only?
Granting a severance is no small thing. It means a court
must expend resources for two trials where the Constitution
would have permitted one. Witnesses and victims must
endure a more protracted ordeal. States sometimes accept
these costs to protect a defendant from potential prejudice.
But 20 States appearing before us have warned that
some jurisdictions might respond to any decision increasing
the costs of severed trials by making them less freely available.
See Brief for State of Indiana et al. as Amici
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Curiae 4, 16–20. Of course, that's only a prediction. But
it's a hard if unwanted fact that “[t]oday's elaborate body of
procedural rules” can contribute to making “trials expensive
[and] rare.” W. Stuntz, The Collapse of American Criminal
Justice 39 (2011). And it would be a mistake to ignore the
possibility that by making severances more costly we might
wind up making them rarer too.
The fact is, civil preclusion principles and double jeopardy
are different doctrines, with different histories, serving different
purposes. Historically, both claim and issue preclusion
have sought to “promot[e] judicial economy by preventing
needless litigation.” Parklane Hosiery, supra, at 326.
That interest may make special sense in civil cases where
often only money is at stake. But the Double Jeopardy
Clause and the common law principles it built upon govern
criminal cases and concern more than effciency. They aim
instead, as we've seen, to balance vital interests against abusive
prosecutorial practices with consideration to the public's
safety. The Clause's terms and history simply do not contain
the rights Mr. Currier seeks.
Nor are we at liberty to rewrite those terms or that history.
While the growing number of criminal offenses in our
statute books may be cause for concern, see post, at 515–516
(Ginsburg, J., dissenting), no one should expect (or want)
judges to revise the Constitution to address every social
problem they happen to perceive. The proper authorities,
the States and Congress, are empowered to adopt new laws or
rules experimenting with issue or claim preclusion in criminal
cases if they wish. In fact, some States have already done so.
On these matters, the Constitution dictates no answers but entrusts
them to a self-governing people to resolve.
*
The judgment of the Virginia Supreme Court is
Affrmed.
Cite as: 585 U. S. 493 (2018) 511
Kennedy, J., concurring in part
Justice Kennedy, concurring in part.
I join Parts I and II of the Court's opinion, which, in my
view, suffce to resolve this case in a full and proper way.
There is a strong public “interest in giving the prosecution
one complete opportunity to convict those who have violated
its laws.” Arizona v. Washington, 434 U. S. 497, 509 (1978).
The reason that single opportunity did not occur in one trial
here was because both parties consented to sever the possession
charge to avoid introducing evidence of petitioner's
prior conviction during his trial for burglary and larceny.
Petitioner acknowledges that by consenting to severance he
cannot argue that the Double Jeopardy Clause bars the second
trial. See Brief for Petitioner 9–10. He instead contends
that, even though he consented to severance, he preserved
the double jeopardy protections applied in Ashe v.
Swenson, 397 U. S. 436 (1970), protections that, in Ashe,
were a bar to relitigation of factual issues adjudicated in a
previous trial.
The Double Jeopardy Clause refects the principle that
“the State with all its resources and power should not be
allowed to make repeated attempts to convict an individual
for an alleged offense, thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as well as enhancing
the possibility that even though innocent he may be
found guilty.” Green v. United States, 355 U. S. 184, 187–188
(1957). But this “is not a principle which can be expanded
to include situations in which the defendant is responsible
for the second prosecution.” United States v. Scott, 437
U. S. 82, 95–96 (1978); see also id., at 99 (The “Clause, which
guards against Government oppression, does not relieve a
defendant from the consequences of his voluntary choice”).
This rule recurs throughout the Court's double jeopardy
cases, see, e. g., Jeffers v. United States, 432 U. S. 137, 152
(1977); Ohio v. Johnson, 467 U. S. 493, 500, n. 9, 502 (1984);
512 CURRIER v. VIRGINIA
Ginsburg, J., dissenting
Evans v. Michigan, 568 U. S. 313, 326 (2013), and, in my view,
it controls here.
The end result is that when a defendant's voluntary
choices lead to a second prosecution he cannot later use the
Double Jeopardy Clause, whether thought of as protecting
against multiple trials or the relitigation of issues, to forestall
that second prosecution. The extent of the Double
Jeopardy Clause protections discussed and defned in Ashe
need not be reexamined here; for, whatever the proper formulation
and implementation of those rights are, they can be
lost when a defendant agrees to a second prosecution. Of
course, this conclusion is premised on the defendant's having
a voluntary choice, and a different result might obtain if that
premise were absent. Cf. Turner v. Arkansas, 407 U. S.
366, 367 (1972) (per curiam) (applying Ashe to a second trial
where state law prohibited a single trial of the charges at
issue).
Justice Ginsburg, with whom Justice Breyer, Justice
Sotomayor, and Justice Kagan join, dissenting.
Michael Nelson Currier was charged in Virginia state
court with (1) breaking and entering, (2) grand larceny, and
(3) possessing a frearm after having been convicted of a felony.
All three charges arose out of the same criminal episode.
Under Virginia practice, unless the prosecutor and
the defendant otherwise agree, a trial court must sever a
charge of possession of a frearm by a convicted felon from
other charges that do not require proof of a prior conviction.
Virginia maintains this practice recognizing that evidence of
a prior criminal conviction, other than on the offense for
which the defendant is being tried, can be highly prejudicial
in jury trials.
After trial for breaking and entering and grand larceny,
the jury acquitted Currier of both charges. The prosecutor
then chose to proceed against Currier on the severed felonCite
as: 585 U. S. 493 (2018) 513
Ginsburg, J., dissenting
in-possession charge. Currier objected to the second trial
on double jeopardy grounds. He argued that the jury
acquittals of breaking and entering and grand larceny established
defnitively and with fnality that he had not participated
in the alleged criminal episode. Invoking the issuepreclusion
component of the double jeopardy ban, Currier
urged that in a second trial, the Commonwealth could not
introduce evidence of his alleged involvement in breaking
and entering and grand larceny, charges on which he had
been acquitted. He further maintained that without allowing
the prosecution a second chance to prove breaking
and entering and grand larceny, the evidence would be insuffcient
to warrant conviction of the felon-in-possession
charge.
I would hold that Currier's acquiescence in severance of
the felon-in-possession charge does not prevent him from
raising a plea of issue preclusion based on the jury acquittals
of breaking and entering and grand larceny.
I
This Court's decisions “have recognized that the [Double
Jeopardy] Clause embodies two vitally important interests.”
Yeager v. United States, 557 U. S. 110, 117 (2009). “The frst
is the `deeply ingrained' principle that `the State with all its
resources and power should not be allowed to make repeated
attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that
even though innocent he may be found guilty.' ” Id., at 117–
118 (quoting Green v. United States, 355 U. S. 184, 187–188
(1957)). The second interest the Clause serves is preservation
of the “fnality of judgments,” 557 U. S., at 118 (internal
quotation marks omitted), particularly acquittals, see id., at
122–123 (an acquittal's “fnality is unassailable”); Evans v.
514 CURRIER v. VIRGINIA
Ginsburg, J., dissenting
Michigan, 568 U. S. 313, 319 (2013) (“The law attaches
particular signifcance to an acquittal.” (internal quotation
marks omitted)).
The Clause effectuates its overall guarantee through multiple
protections. Historically, among those protections, the
Court has safeguarded the right not to be subject to multiple
trials for the “same offense.” See Brown v. Ohio, 432 U. S.
161, 165 (1977). That claim-preclusive rule stops the government
from litigating the “same offense” or criminal
charge in successive prosecutions, regardless of whether the
frst trial ends in a conviction or an acquittal. See Bravo-
Fernandez v. United States, 580 U. S. 5, 9 (2016); Brown,
432 U. S., at 165. To determine whether two offenses are
the “same,” this Court has held, a court must look to the
offenses' elements. Blockburger v. United States, 284 U. S.
299, 304 (1932). If each offense “requires proof of a fact
which the other does not,” Blockburger established, the offenses
are discrete and the prosecution of one does not bar
later prosecution of the other. Ibid. If, however, two offenses
are greater and lesser included offenses, the government
cannot prosecute them successively. See Brown, 432
U. S., at 169.
Also shielded by the Double Jeopardy Clause is the issuepreclusive
effect of an acquittal. First articulated in Ashe
v. Swenson, 397 U. S. 436 (1970), the issue-preclusive aspect
of the Double Jeopardy Clause prohibits the government
from relitigating issues necessarily resolved in a defendant's
favor at an earlier trial presenting factually related offenses.
Ashe involved the robbery of six poker players by a group
of masked men. Id., at 437. Missouri tried Ashe frst for
the robbery of Donald Knight. Id., at 438. At trial, proof
that Knight was the victim of a robbery was “unassailable”;
the sole issue in dispute was whether Ashe was one of the
robbers. Id., at 438, 445. A jury found Ashe not guilty.
Id., at 439. Missouri then tried Ashe for robbing a different
poker player at the same table. Ibid. The witnesses at the
second trial “were for the most part the same,” although
Cite as: 585 U. S. 493 (2018) 515
Ginsburg, J., dissenting
their testimony for the prosecution was “substantially
stronger” than it was at the frst trial. Id., at 439–440.
The State also “refned its case” by declining to call a witness
whose identifcation testimony at the frst trial had been
“conspicuously negative.” Id., at 440. The second time
around, the State secured a conviction. Ibid.
Although the second prosecution involved a different victim
and thus a different “offense,” this Court held that the
second prosecution violated the Double Jeopardy Clause. A
component of that Clause, the Court explained, rests on the
principle that “when an issue of ultimate fact has once been
determined by a valid and fnal judgment, that issue cannot
again be litigated between the same parties in any future
lawsuit.” Id., at 443, 445. Consequently, “after a jury determined
by its verdict that [Ashe] was not one of the robbers,”
the State could not “constitutionally hale him before
a new jury to litigate that issue again.” Id., at 446.
In concluding that the Double Jeopardy Clause includes
issue-preclusion protection for defendants, the Court acknowledged
that no prior decision had “squarely held [issue
preclusion] to be a constitutional requirement.” Id., at 445,
n. 10. “Until perhaps a century ago,” the Court explained,
“few situations arose calling for [issue preclusion's] application.”
Ibid. “[A]t common law” and “under early federal
criminal statutes, offense categories were relatively few and
distinct,” and “[a] single course of criminal conduct was likely
to yield but a single offense.” Ibid. “[W]ith the advent of
specifcity in draftsmanship and the extraordinary proliferation
of overlapping and related statutory offenses,” however,
“it became possible for prosecutors to spin out a startlingly
numerous series of offenses from a single alleged criminal
transaction.” Ibid. With this proliferation, “the potential
for unfair and abusive reprosecutions became far more pronounced.”
Ibid.
Toward the end of the 19th century, courts increasingly
concluded that greater protections than those traditionally
afforded under the Double Jeopardy Clause were needed to
516 CURRIER v. VIRGINIA
Ginsburg, J., dissenting
spare defendants from prosecutorial excesses. Federal
courts, cognizant of the increased potential for exposing defendants
to multiple charges based on the same criminal episode,
borrowed issue-preclusion principles from the civil context
to bar relitigation of issues necessarily resolved against
the government in a criminal trial. Ibid.; cf. United States
v. Oppenheimer, 242 U. S. 85, 87 (1916) (“It cannot be that
the safeguards of the person, so often and so rightly mentioned
with solemn reverence, are less than those that protect
from a liability in debt”). By 1970, when Ashe was decided,
issue preclusion, “[a]lthough frst developed in civil
litigation,” had become “an established rule of federal criminal
law.” Ashe, 397 U. S., at 443. The question presented
in Ashe was whether issue preclusion is not just an established
rule of federal criminal procedure, but also a rule of
constitutional stature. The Court had no “hesitat[ion]” in
concluding that it is. Id., at 445.
Since Ashe, this Court has reaffrmed that issue preclusion
ranks with claim preclusion as a Double Jeopardy Clause
component. Harris v. Washington, 404 U. S. 55, 56 (1971)
(per curiam). Given criminal codes of prolix character,
issue preclusion both arms defendants against prosecutorial
excesses, see Ashe, 397 U. S., at 445, n. 10, and preserves the
integrity of acquittals, see Yeager, 557 U. S., at 118–119.
See also id., at 119 (Double Jeopardy Clause shields defendants
against “relitiga[tion] [of] any issue that was necessarily
decided by a jury's acquittal in a prior trial”).
II
On March 7, 2012, a large safe containing some $71,000 in
cash and 20 frearms was stolen from Paul and Brenda Garrison's
home. When police recovered the safe, which had been
dumped in a river, the frearms remained inside, but most of
the cash was gone. After a neighbor reported seeing a
white pickup truck leaving the Garrisons' driveway around
the time of the theft, police identifed the Garrisons' nephew,
Cite as: 585 U. S. 493 (2018) 517
Ginsburg, J., dissenting
Bradley Wood, as a suspect. Wood later implicated Currier
as an accomplice. A grand jury indicted Currier for breaking
and entering, grand larceny, and possessing a frearm
after having been convicted of a felony. The felon aspect of
the felon-in-possession charge was based on Currier's prior
convictions for burglary and larceny. Currier was “in possession”
of the frearms, the prosecution contended, based on
his brief handling of the guns contained in the safe (taking
them out and putting them back) when the remaining cash
was removed from inside.
Virginia courts, like many others, recognize that trying a
felon-in-possession charge together with offenses that do not
permit the introduction of prior felony convictions can be
hugely prejudicial to a defendant. See Hackney v. Commonwealth,
28 Va. App. 288, 293–294, 504 S. E. 2d 385, 388
(1998) (en banc). Evidence of prior convictions, they have
observed, can “confus[e] the issues before the jury” and
“prejudice the defendant in the minds of the jury by showing
his or her depravity and criminal propensity.” Id., at 293,
504 S. E. 2d, at 388. Virginia courts therefore hold that “unless
the Commonwealth and defendant agree to joinder, a
trial court must sever a charge of possession of a frearm by
a convicted felon from other charges that do not require
proof of a prior conviction.” Id., at 295, 504 S. E. 2d, at 389.
In Currier's case, the prosecution and Currier acceded to the
Commonwealth's default rule, and the trial court accordingly
severed the felon-in-possession charge from the breaking and
entering and grand larceny charges.
The Commonwealth proceeded to try Currier frst for
breaking and entering and grand larceny. Witnesses for the
prosecution testifed to Currier's involvement in the crimes.
First, Wood testifed that Currier helped him break into the
Garrisons' home and steal the safe. Second, the Garrisons'
neighbor testifed that she believed Currier was the passenger
in the pickup truck she had seen leaving the Garrisons'
residence. The prosecution also sought to introduce evi518
CURRIER v. VIRGINIA
Ginsburg, J., dissenting
dence that a cigarette butt found in Wood's pickup truck carried
Currier's DNA. But the court excluded that evidence
because the prosecution failed to disclose it at least 21 days
in advance of trial, as Virginia law required.
The sole issue in dispute at the frst trial, Currier maintains,
was whether he participated in the break-in and theft.
See App. 35 (prosecutor's closing statement, stating “What
is in dispute? Really only one issue and one issue alone.
Was the defendant, Michael Currier, one of those people that
was involved in the offense?”). The case was submitted to
the jury, which acquitted Currier of both offenses.
Despite the jury's acquittal verdicts, the prosecution proceeded
against Currier on the felon-in-possession charge.
In advance of his second trial, Currier moved to dismiss the
gun-possession charge based on the issue-preclusion component
of the Double Jeopardy Clause. He urged that the jury
at his frst trial rejected the government's contention that
he was involved in the break-in and theft. Cf. Ashe, 397
U. S., at 446 (common issue in frst and second trials was
whether Ashe was one of the robbers). If the government
could not attempt to prove anew his participation in the
break-in and theft, he reasoned, there would be no basis for
a conviction on the gun-possession charge. I. e., his involvement
in handling the guns, on the government's theory of
the case, depended on his anterior involvement in breaking
and entering the Garrisons' residence and stealing their safe.
The trial court refused to dismiss the prosecution or to bar
the government from introducing evidence of Currier's alleged
involvement in the break-in and theft.
At the second trial, the prosecution shored up its attempt
to prove Currier's participation in the break-in and theft.
The witnesses refned their testimony. Remedying its earlier
procedural lapse by timely notifying Currier, the prosecution
introduced the cigarette butt evidence. And, of
course, to show Currier was a felon, the prosecution introCite
as: 585 U. S. 493 (2018) 519
Ginsburg, J., dissenting
duced his prior burglary and larceny convictions. The jury
found Currier guilty of the felon-in-possession offense.
III
The Court holds that even if Currier could have asserted
a double jeopardy issue-preclusion defense in opposition to
the second trial, he relinquished that right by acquiescing in
severance of the felon-in-possession charge. This holding is
not sustainable. A defendant's consent to severance does
not waive his right to rely on the issue-preclusive effect of
an acquittal.
A
It bears clarifcation frst that, contra to the Court's presentation,
issue preclusion requires no showing of prosecutorial
overreaching. But cf. ante, at 502 (stating that “the
Double Jeopardy Clause exists to prevent [prosecutorial oppression]”).
This Court so ruled in Harris v. Washington,
404 U. S. 55, and it has subsequently reinforced the point in
Turner v. Arkansas, 407 U. S. 366 (1972) (per curiam), and
Yeager v. United States, 557 U. S. 110.
In Harris, the Washington Supreme Court declined to
give an acquittal issue-preclusive effect because there was
“no indication of bad faith of the state in deliberately making
a `trial run' in the frst prosecution.” State v. Harris, 78
Wash. 2d 894, 901, 480 P. 2d 484, 488 (1971). The State Supreme
Court further observed that “it was to the advantage
of the defendant, and not the state, to separate the trials”
because certain evidence was inadmissible in the frst trial
that would be admissible in the second. Id., at 898, 480
P. 2d, at 486. This Court reversed and explained that an
acquittal has issue-preclusive effect “irrespective of the good
faith of the State in bringing successive prosecutions.”
Harris, 404 U. S., at 57.
In Turner, Arkansas prosecutors believed the defendant
had robbed and murdered someone. 407 U. S., at 366. An
520 CURRIER v. VIRGINIA
Ginsburg, J., dissenting
Arkansas statute required that murder be charged separately,
with no other charges appended. Id., at 367. After
a jury acquitted Turner on the murder charge, the State
sought to try him for robbery. Id., at 366–367. Even
though state law, not an overzealous prosecutor, dictated the
sequential trials, this Court held that the defendant was entitled
to assert issue preclusion and found the case “squarely
controlled by Ashe.” Id., at 370.
In Yeager, the defendant stood trial on numerous factually
related offenses. 557 U. S., at 113–114. After a jury acquitted
on some counts but hung on others, the prosecution
sought to retry a number of the hung counts. Id., at 115.
The defendant argued that issue preclusion should apply in
the second trial. In opposition, the prosecution stressed
that a retrial “presen[ted] none of the governmental overreaching
that double jeopardy is supposed to prevent.”
Brief for United States in Yeager v. United States, O. T. 2008,
No. 08–67, p. 26 (internal quotation marks omitted). Indeed,
the prosecution had “attempted to bring all the
charges in a single proceeding,” and it was seeking a second
trial on some charges only “because the jury hung.” Ibid.
The Court did not regard as controlling the lack of prosecutorial
overreaching. Instead, it emphasized that “[a] jury's
verdict of acquittal represents the community's collective
judgment regarding all the evidence and arguments presented
to it” and that, once rendered, an acquittal's “fnality
is unassailable.” 557 U. S., at 122–123.
B
There is in Currier's case no suggestion that he expressly
waived a plea of issue preclusion at a second trial, or that he
failed to timely assert the plea. Instead, the contention,
urged by the prosecution and embraced by this Court, is that
Currier surrendered his right to assert the issue-preclusive
effect of his frst-trial acquittals by consenting to two trials.
Cite as: 585 U. S. 493 (2018) 521
Ginsburg, J., dissenting
This Court “indulge[s] every reasonable presumption
against waiver of fundamental constitutional rights.” Johnson
v. Zerbst, 304 U. S. 458, 464 (1938) (internal quotation
marks omitted). It has found “waiver by conduct” only
where a defendant has engaged in “conduct inconsistent with
the assertion of [the] right.” Pierce Oil Corp. v. Phoenix
Refning Co., 259 U. S. 125, 129 (1922). For example, a defendant
who “voluntarily absents himself” from trial waives
his Sixth Amendment right to be present. Taylor v. United
States, 414 U. S. 17, 19 (1973) (per curiam) (internal quotation
marks omitted). Similarly, a defendant who “obtains
the absence of a witness by wrongdoing” may “forfeit” or
“waive” his Sixth Amendment right to confront the absent
witness. Davis v. Washington, 547 U. S. 813, 833 (2006).
Where, however, a defendant takes no action inconsistent
with the assertion of a right, the defendant will not be found
to have waived the right.
Currier took no action inconsistent with assertion of an
issue-preclusion plea. To understand why, one must comprehend
just what issue preclusion forecloses. Unlike the
right against a second trial for the same offense (claim preclusion),
issue preclusion prevents relitigation of a previously
rejected theory of criminal liability without necessarily barring
a successive trial. Take Ashe, for example. Issue preclusion
prevented the prosecution from arguing, at a second
trial, that Ashe was one of the robbers who held up the poker
players at gunpoint. But if the prosecution sought to prove,
instead, that Ashe waited outside during the robbery and
then drove the getaway car, issue preclusion would not have
barred that trial. Similarly here, the prosecution could not
again attempt to prove that Currier participated in the
break-in and theft of the safe at the Garrisons' residence.
But a second trial could be mounted if the prosecution alleged,
for instance, that Currier was present at the river's
edge when others showed up to dump the safe in the river,
522 CURRIER v. VIRGINIA
Ginsburg, J., dissenting
and that Currier helped to empty out and replace the guns
contained in the safe.
In short, issue preclusion does not operate, as claim preclusion
does, to bar a successive trial altogether. Issue preclusion
bars only a subset of possible trials—those in which the
prosecution rests its case on a theory of liability a jury earlier
rejected. That being so, consenting to a second trial
is not inconsistent with—and therefore does not foreclose—
a defendant's gaining the issue-preclusive effect of an
acquittal.
The Court cites Jeffers v. United States, 432 U. S. 137
(1977), United States v. Dinitz, 424 U. S. 600 (1976), and
United States v. Scott, 437 U. S. 82 (1978), as support for a
second trial, on the ground that Currier consented to it.
Those decisions do not undermine the inviolacy of an
acquittal.
In Jeffers, the defendant was charged with two offenses,
one of which was a lesser included offense of the other. 432
U. S., at 140–141, 150. He asked for, and gained, separate
trials of the two charges. Id., at 142–143. After conviction
on the lesser included charge, he argued that a second trial
on the remaining charge would violate his double jeopardy
right “against multiple prosecutions.” Id., at 139, 143–144.
A plurality of this Court rejected Jeffers' argument, reasoning
that he had waived the relevant right because he was
“solely responsible for the successive prosecutions.” Id.,
at 154.
Jeffers presented a claim-preclusion question. The Court
there said not one word about issue preclusion. Nor did the
Court address the staying power of an acquittal. It had no
occasion to do so, as Jeffers was convicted on the frst charge.
Indeed, some years later, three Justices, including the author
of the Jeffers plurality, stated: “There is no doubt that had
the defendant in Jeffers been acquitted at the frst trial, the
[issue-preclusion protection] embodied in the Double JeopCite
as: 585 U. S. 493 (2018) 523
Ginsburg, J., dissenting
ardy Clause would have barred a second trial on the greater
offense.” Green v. Ohio, 455 U. S. 976, 980 (1982) (White, J.,
joined by Blackmun and Powell, JJ., dissenting from the denial
of certiorari) (emphasis added).
Dinitz and Scott are even weaker reeds. In Dinitz, the
defendant requested, and gained, a mistrial after the trial
judge expelled his lead counsel from the courtroom. 424
U. S., at 602–605. In Scott, the defendant sought and obtained
dismissal of two of three counts prior to their submission
to the jury. 437 U. S., at 84. The question in each case
was whether the defendant's actions deprived him of the
right to be spared from a second trial on the same offenses.
Both decisions simply concluded that when a defendant voluntarily
seeks to terminate a trial before a substantive ruling
on guilt or innocence, the Double Jeopardy Clause is not
offended by a second trial. The cases, however, said nothing
about the issue-preclusive effect of a prior acquittal at a subsequent
trial. Cf. Burks v. United States, 437 U. S. 1, 17
(1978) (“It cannot be meaningfully said that a person `waives'
his right to a judgment of acquittal by moving for a new
trial.”). As was the case in Jeffers, Dinitz and Scott presented
no occasion to do so.1
1 Ohio v. Johnson, 467 U. S. 493 (1984), cited by Justice Kennedy, ante,
at 511, is not in point. It, too, like Jeffers, Scott, and Dinitz, involved
claim preclusion, not issue preclusion, i. e., trial of greater offenses after
guilty pleas to lesser offenses. See supra, at 514. The case does contain
an enigmatic footnote stating, “in a case such as this, where the State has
made no effort to prosecute the charges seriatim, the considerations of
double jeopardy protection implicit in the application of [issue preclusion]
are inapplicable.” 467 U. S., at 500, n. 9. True in a case like Johnson,
which involved no prior acquittals, I would not read more into a terse,
unelaborated footnote that contains no citation.
Evans v. Michigan, 568 U. S. 313 (2013), cited by the Court, ante, at
501–502, and Justice Kennedy, ante, at 512, is even further afeld. There,
the trial court erroneously granted a judgment of acquittal. The State
sought retrial in view of the error. This Court held that, despite the error,
the acquittal was a fnal judgment, which could not be undone. 568 U. S., at
524 CURRIER v. VIRGINIA
Ginsburg, J., dissenting
IV
Venturing beyond Justice Kennedy's rationale for resolving
this case, the plurality would take us back to the
days before the Court recognized issue preclusion as a constitutionally
grounded component of the Double Jeopardy
Clause. See ante, at 508 (questioning whether issue preclusion
“really . . . exist[s] in criminal law”). I would not engage
in that endeavor to restore things past.2
One decision, however, should be set straight. The plurality
asserts that Dowling v. United States, 493 U. S. 342
(1990), established that issue preclusion has no role to play
in regulating the issues or evidence presented at a successive
trial. Ante, at 506–507. Dowling did no such thing. The
case is tied to Federal Rule of Evidence 404(b), which allows
the prosecution to introduce evidence of a defendant's past
criminal conduct for described purposes other than to show
a defendant's bad character. See Fed. Rule Evid. 404(b)(2).
The defendant in Dowling was prosecuted for robbing a
bank. 493 U. S., at 344. To bolster its case that Dowling
was the perpetrator, the Government sought to introduce
evidence that Dowling participated in a home invasion two
316. Whatever may be said of Evans, that decision is certainly no authority
for watering down the issue-preclusive effect of a judgment acquitting
the defendant.
Garrett v. United States, 471 U. S. 773 (1985), cited by the plurality,
ante, at 507, also involves claim preclusion, not issue preclusion. The
Court held, unremarkably, that a crime transpiring in one day is not the
“same offense” as a continuing criminal enterprise spanning more than
fve years. 471 U. S., at 788.
2 If issue preclusion does exist in criminal law, the plurality asserts, it
has only “guarded application,” Bravo-Fernandez v. United States, 580
U. S. 5, 10 (2016). See ante, at 504. I do not gainsay that assertion.
Bravo-Fernandez itself, however, involved the special problem of inconsistent
verdicts rendered by the same jury. It held only that an acquittal
cannot convey rejection of the prosecutor's allegations when the jury simultaneously
convicts the defendant of an offense turning on acceptance
of the same allegations. 580 U. S., at 8–9.
Cite as: 585 U. S. 493 (2018) 525
Ginsburg, J., dissenting
weeks after the bank robbery. Id., at 344–345. One diffculty
for the prosecution: Dowling had been acquitted of the
home invasion. Id., at 345. Nevertheless, the trial court
admitted the evidence, informing the jurors that Dowling
had been acquitted of the home-invasion charge and instructing
them on the “limited purpose” for which the evidence
was introduced. Id., at 345–346.
The Court in Dowling “decline[d] to extend Ashe” to forbid
the prosecution from introducing evidence, under Rule
404(b), of a crime for which the defendant had been acquitted,
one involving criminal conduct unrelated to the bank
robbery for which Dowling stood trial. Id., at 348. The
charge for which Dowling was acquitted took place at a different
time and involved different property, a different location,
and different victims. Id., at 344. See also United
States v. Felix, 503 U. S. 378, 386 (1992) (stressing that the
two crimes in Dowling were “unrelated”). It surely could
not be said that, in the bank robbery trial, Dowling was
being tried a second time for the later-occurring home invasion
offense. Here, by contrast, the two trials involved the
same criminal episode. See Ashe, 397 U. S., at 446 (“same
robbery”); Turner, 407 U. S., at 368–369 (“the same set of
facts, circumstances, and the same occasion” (internal quotation
marks omitted)).
Extending Dowling from the Evidence Rule 404(b) context
in which it was embedded to retrials involving the same
course of previously acquitted conduct would undermine
issue preclusion's core tenet. That tenet was well stated by
Judge Friendly in United States v. Kramer, 289 F. 2d 909
(CA2 1961):
“A defendant who has satisfed one jury that he had no
responsibility for a crime ought not be forced to convince
another of this [lack of responsibility]. . . . The very nub
of [issue preclusion] is to extend res judicata beyond
those cases where the prior judgment is a complete bar.
The Government is free, within limits set by the Fifth
526 CURRIER v. VIRGINIA
Ginsburg, J., dissenting
Amendment, to charge an acquitted defendant with
other crimes claimed to arise from the same or related
conduct; but it may not prove the new charge by asserting
facts necessarily determined against it on the frst
trial . . . .” Id., at 915–916 (citation omitted).
So here. The frst trial established that Currier did not participate
in breaking and entering the Garrisons' residence or
in stealing their safe. The government can attempt to prove
Currier possessed frearms through a means other than
breaking and entering the Garrisons' residence and stealing
their safe. But the government should not be permitted to
show in the felon-in-possession trial what it failed to show
in the frst trial, i. e., Currier's participation in the charged
breaking and entering and grand larceny, after a full and fair
opportunity to do so.
* * *
For the reasons stated, I would reverse the judgment of
the Virginia Supreme Court.
OCTOBER TERM, 2017 527
Syllabus
DALMAZZI v. UNITED STATES
certiorari to the united states court of appeals
for the armed forces
No. 16–961. Argued January 16, 2018—Decided June 22, 2018
Certiorari dismissed. Reported below: 76 M. J. 1.
Stephen I. Vladeck argued the cause for petitioner. With
him on the briefs were Mary J. Bradley, Christopher D. Carrier,
Brian L. Mizer, Johnathan D. Legg, Lauren-Ann L.
Shure, and Eugene R. Fidell.
Aditya Bamzai, pro se, argued the cause as amicus curiae
in support of neither party. With him on the brief was
Adam J. White.
Brian H. Fletcher argued the cause for the United States.
With him on the brief were Solicitor General Francisco,
Acting Assistant Attorney General Boente, Deputy Solicitor
General Kneedler, Joseph F. Palmer, and Danielle S.
Tarin.
Per Curiam.
The writ of certiorari is dismissed as improvidently
granted.
It is so ordered.
528 OCTOBER TERM, 2017
Syllabus
COX v. UNITED STATES
certiorari to the united states court of appeals
for the armed forces
No. 16–1017. Argued January 16, 2018—Decided June 22, 2018*
Certiorari dismissed. Reported below: 76 M. J. 64; 76 M. J. 54.
Stephen I. Vladeck argued the cause for petitioners.
With him on the briefs were Mary J. Bradley, Christopher
D. Carrier, Brian L. Mizer, Johnathan D. Legg, Lauren-Ann
L. Shure, and Eugene R. Fidell.
Aditya Bamzai, pro se, argued the cause as amicus curiae
in support of neither party. With him on the brief was
Adam J. White.
Brian H. Fletcher argued the cause for the United States.
With him on the brief were Solicitor General Francisco,
Acting Assistant Attorney General Boente, Deputy Solicitor
General Kneedler, Joseph F. Palmer, and Danielle S.
Tarin.
Per Curiam.
The writ of certiorari is dismissed as improvidently
granted.
It is so ordered.
*Together with Craig v. United States, Lewis v. United States, Miller
v. United States, Morchinek v. United States, and O'Shaughnessy v.
United States (see this Court's Rule 12.4), also on certiorari to the same
court.
OCTOBER TERM, 2017 529
Syllabus
OHIO et al. v. AMERICAN EXPRESS CO. et al.
certiorari to the united states court of appeals for
the second circuit
No. 16–1454. Argued February 26, 2018—Decided June 25, 2018
Respondent credit-card companies American Express Company and
American Express Travel Related Services Company (collectively,
Amex) operate what economists call a “two-sided platform,” providing
services to two different groups (cardholders and merchants) who depend
on the platform to intermediate between them. Because the interaction
between the two groups is a transaction, credit-card networks
are a special type of two-sided platform known as a “transaction” platform.
The key feature of transaction platforms is that they cannot
make a sale to one side of the platform without simultaneously making
a sale to the other. Unlike traditional markets, two-sided platforms
exhibit “indirect network effects,” which exist where the value of the
platform to one group depends on how many members of another group
participate. Two-sided platforms must take these effects into account
before making a change in price on either side, or they risk creating a
feedback loop of declining demand. Thus, striking the optimal balance
of the prices charged on each side of the platform is essential for twosided
platforms to maximize the value of their services and to compete
with their rivals.
Visa and MasterCard—two of the major players in the credit-card
market—have significant structural advantages over Amex. Amex
competes with them by using a different business model, which focuses
on cardholder spending rather than cardholder lending. To encourage
cardholder spending, Amex provides better rewards than the other
credit-card companies. Amex must continually invest in its cardholder
rewards program to maintain its cardholders' loyalty. But to fund
those investments, it must charge merchants higher fees than its rivals.
Although this business model has stimulated competitive innovations in
the credit-card market, it sometimes causes friction with merchants.
To avoid higher fees, merchants sometimes attempt to dissuade cardholders
from using Amex cards at the point of sale—a practice known as
“steering.” Amex places antisteering provisions in its contracts with
merchants to combat this.
In this case, the United States and several States (collectively, plaintiffs)
sued Amex, claiming that its antisteering provisions violate § 1 of
530 OHIO v. AMERICAN EXPRESS CO.
Syllabus
the Sherman Antitrust Act. The District Court agreed, fnding that
the credit-card market should be treated as two separate markets—one
for merchants and one for cardholders—and that Amex's antisteering
provisions are anticompetitive because they result in higher merchant
fees. The Second Circuit reversed. It determined that the credit-card
market is one market, not two. And it concluded that Amex's antisteering
provisions did not violate § 1.
Held: Amex's antisteering provisions do not violate federal antitrust law.
Pp. 540–552.
(a) Section 1 of the Sherman Act prohibits “unreasonable restraints”
of trade. State Oil Co. v. Khan, 522 U. S. 3, 10. Restraints may be
unreasonable in one of two ways—unreasonable per se or unreasonable
as judged under the “rule of reason.” Business Electronics Corp. v.
Sharp Electronics Corp., 485 U. S. 717, 723. The parties agree that
Amex's antisteering provisions should be judged under the rule of reason
using a three-step burden-shifting framework. They ask this Court
to decide whether the plaintiffs have satisfed the frst step in that
framework—i. e., whether they have proved that Amex's antisteering
provisions have a substantial anticompetitive effect that harms consumers
in the relevant market. Pp. 540–542.
(b) Applying the rule of reason generally requires an accurate defnition
of the relevant market. In this case, both sides of the two-sided
credit-card market—cardholders and merchants—must be considered.
Only a company with both cardholders and merchants willing to use its
network could sell transactions and compete in the credit-card market.
And because credit-card networks cannot make a sale unless both sides
of the platform simultaneously agree to use their services, they exhibit
more pronounced indirect network effects and interconnected pricing
and demand. Indeed, credit-card networks are best understood as supplying
only one product—the transaction—that is jointly consumed by
a cardholder and a merchant. Accordingly, the two-sided market for
credit-card transactions should be analyzed as a whole. Pp. 542–547.
(c) The plaintiffs have not carried their burden to show anticompetitive
effects. Their argument—that Amex's antisteering provisions increase
merchant fees—wrongly focuses on just one side of the market.
Evidence of a price increase on one side of a two-sided transaction
platform cannot, by itself, demonstrate an anticompetitive exercise of
market power. Instead, plaintiffs must prove that Amex's antisteering
provisions increased the cost of credit-card transactions above a competitive
level, reduced the number of credit-card transactions, or otherwise
stifed competition in the two-sided credit-card market. They failed to
do so. Pp. 547–552.
Cite as: 585 U. S. 529 (2018) 531
Syllabus
(1) The plaintiffs offered no evidence that the price of credit-card
transactions was higher than the price one would expect to fnd in a
competitive market. Amex's increased merchant fees refect increases
in the value of its services and the cost of its transactions, not an ability
to charge above a competitive price. It uses higher merchant fees to
offer its cardholders a more robust rewards program, which is necessary
to maintain cardholder loyalty and encourage the level of spending that
makes it valuable to merchants. In addition, the evidence that does
exist cuts against the plaintiffs' view that Amex's antisteering provisions
are the cause of any increases in merchant fees: Visa and Master-
Card's merchant fees have continued to increase, even at merchant locations
where Amex is not accepted. Pp. 547–549.
(2) The plaintiffs' evidence that Amex's merchant-fee increases
between 2005 and 2010 were not entirely spent on cardholder rewards
does not prove that Amex's antisteering provisions gave it the power to
charge anticompetitive prices. This Court will “not infer competitive
injury from price and output data absent some evidence that tends to
prove that output was restricted or prices were above a competitive
level.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509
U. S. 209, 237. There is no such evidence here. Output of credit-card
transactions increased during the relevant period, and the plaintiffs did
not show that Amex charged more than its competitors. P. 549.
(3) The plaintiffs also failed to prove that Amex's antisteering provisions
have stifed competition among credit-card companies. To the
contrary, while they have been in place, the market experienced expanding
output and improved quality. Nor have Amex's antisteering provisions
ended competition between credit-card networks with respect to
merchant fees. Amex's competitors have exploited its higher merchant
fees to their advantage. Lastly, there is nothing inherently anticompetitive
about the provisions. They actually stem negative externalities
in the credit-card market and promote interbrand competition. And
they do not prevent competing credit-card networks from offering
lower merchant fees or promoting their broader merchant acceptance.
Pp. 549–552.
838 F. 3d 179, affrmed.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Alito, and Gorsuch, JJ., joined. Breyer, J., fled a dissenting
opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined,
post, p. 552.
Eric C. Murphy, State Solicitor of Ohio, argued the cause
for petitioners and state respondents. With him on the
532 OHIO v. AMERICAN EXPRESS CO.
Counsel
briefs were Michael DeWine, Attorney General of Ohio, Michael
J. Hendershot, Chief Deputy Solicitor, and Hannah C.
Wilson, Deputy Solicitor, and the Attorneys General for
their respective States as follows: George Jepsen of Connecticut,
Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois,
Tom Miller of Iowa, Brian E. Frosh of Maryland, Bill
Schuette of Michigan, Tim Fox of Montana, Douglas J. Peterson
of Nebraska, Peter Kilmartin of Rhode Island, Herbert
H. Slatery III of Tennessee, Ken Paxton of Texas, Sean
D. Reyes of Utah, and Thomas J. Donovan, Jr., of Vermont.
Deputy Solicitor General Stewart argued the cause for the
United States as respondent supporting petitioners urging
vacatur and remand. With him on the brief were Solicitor
General Francisco, Assistant Attorney General Delrahim,
Brian H. Fletcher, Kristen C. Limarzi, Robert B. Nicholson,
Nickolai G. Levin, and Andrew J. Ewalt.
Evan R. Chesler argued the cause for respondent American
Express et al. With him on the brief were Peter T.
Barbur, Kevin J. Orsini, Rory A. Leraris, Mark Califano,
Suzanne E. Wachsstock, Michael K. Kellogg, Aaron M.
Panner, Derek T. Ho, Benjamin J. Horwich, and Justin
P. Raphael.*
*Briefs of amici curiae urging reversal were fled for the State of New
York et al. by Eric T. Schneiderman, Attorney General of New York,
Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor
General, Judith N. Vale, Senior Assistant Solicitor General, Beau W. Buffer,
Bureau Chief, Elinor R. Hoffman, Deputy Bureau Chief, and Jeremy
R. Kashia, Assistant Attorney General, and by the Attorneys General for
their respective jurisdictions as follows: Jahna Lindemuth of Alaska, Xavier
Becerra of California, Matthew P. Denn of Delaware, Karl A. Racine
of the District of Columbia, Douglas S. Chin of Hawaii, Curtis T. Hill, Jr.,
of Indiana, Andy Beshear of Kentucky, Janet T. Mills of Maine, Maura
Healey of Massachusetts, Lori Swanson of Minnesota, Jim Hood of Mississippi,
Hector H. Balderas of New Mexico, Josh Stein of North Carolina,
Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Alan Wilson
of South Carolina, Bob Ferguson of Washington, and Brad Schimel of
Wisconsin; for Ahold U. S. A., Inc., et al. by Paul E. Slater, Eric L. Bloom,
Phillip F. Cramer, Ryan T. Holt, Eric G. Osborne, Richard Alan Arnold,
Cite as: 585 U. S. 529 (2018) 533
Opinion of the Court
Justice Thomas delivered the opinion of the Court.
American Express Company and American Express
Travel Related Services Company (collectively, Amex) provide
credit-card services to both merchants and cardholders.
When a cardholder buys something from a merchant who
accepts Amex credit cards, Amex processes the transaction
through its network, promptly pays the merchant, and subtracts
a fee. If a merchant wants to accept Amex credit
cards—and attract Amex cardholders to its business—Amex
requires the merchant to agree to an antisteering contractual
William J. Blechman, Joseph M. Vanek, David P. Germaine, and Matthew
T. Slater; for the American Antitrust Institute by Richard M. Brunell; for
the American Medical Association et al. by Matthew L. Cantor and Jeffrey
I. Shinder; for the Australian Retailers Association by Robert N. Kaplan;
for Discover Financial Services by Elizabeth P. Papez and Andrew C.
Nichols; for the International Air and Transport Association et al. by
Donald I. Baker, W. Todd Miller, and David A. Berg; for the Medical
Advisory Group by James A. Wilson, Robert N. Webner, Kenneth J.
Rubin, and Nathan L. Colvin; for the Open Markets Institute by Deepak
Gupta; for the United States Public Interest Group Education Fund, Inc.,
by Sharon K. Robertson, Michael Landis, and Gregory P. Slover; for Wal-
Mart Stores, Inc., et al. by Mark T. Stancil, Matthew M. Madden, Deborah
White, Alden L. Atkins, John P. Elwood, William L. Taylor, and David
B. Goldston; for John M. Connor et al. by Anthony J. Bolognese; for 20
Merchants by George D. Ruttinger, Andrew I. Gavil, Charles D. Austin,
and Jordan L. Ludwig; and for 28 Professors of Antitrust Law by Eric F.
Citron.
Briefs of amici curiae urging affrmance were fled for Antitrust Law
Scholars et al. by Jonathan M. Jacobson, Daniel P. Weick, and Elyse Dorsey;
for the Australian Taxpayers' Alliance by Kenneth E. Lee, Teena-Ann
V. Sankoorikal, and Dylan A. Stern; for the Clearing House Association
L. L. C. by Richard S. Taffet, David B. Salmons, Judd E. Stone, and
Robert C. Hunter; for the Computer & Communications Industry Association
by Neal Kumar Katyal, Jessica L. Ellsworth, and Eugene A. Sokoloff
; for Pharmaceutical Research and Manufacturers of America by
Aaron M. Streett, Joseph Ostoyich, and William Lavery; for David S.
Evans et al. by Elai Katz; and for J. Gregory Sidak et al. by Robert M.
Langer and Aaron S. Bayer.
Thomas R. McCarthy, Bryan K. Weir, and David E. Wheeler fled a
brief for Verizon Communications Inc. as amicus curiae.
534 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
provision. The antisteering provision prohibits merchants
from discouraging customers from using their Amex card
after they have already entered the store and are about to
buy something, thereby avoiding Amex's fee. In this case,
we must decide whether Amex's antisteering provisions violate
federal antitrust law. We conclude they do not.
I
A
Credit cards have become a primary way that consumers
in the United States purchase goods and services. When a
cardholder uses a credit card to buy something from a merchant,
the transaction is facilitated by a credit-card network.
The network provides separate but interrelated services to
both cardholders and merchants. For cardholders, the network
extends them credit, which allows them to make purchases
without cash and to defer payment until later. Cardholders
also can receive rewards based on the amount of
money they spend, such as airline miles, points for travel, or
cash back. For merchants, the network allows them to
avoid the cost of processing transactions and offers them
quick, guaranteed payment. This saves merchants the trouble
and risk of extending credit to customers, and it increases
the number and value of sales that they can make.
By providing these services to cardholders and merchants,
credit-card companies bring these parties together, and
therefore operate what economists call a “two-sided platform.”
As the name implies, a two-sided platform offers different
products or services to two different groups who both
depend on the platform to intermediate between them. See
Evans & Schmalensee, Markets With Two-Sided Platforms,
1 Issues in Competition L. & Pol'y 667 (2008) (Evans &
Schmalensee); Evans & Noel, Defning Antitrust Markets
When Firms Operate Two-Sided Platforms, 2005 Colum. Bus.
L. Rev. 667, 668 (Evans & Noel); Filistrucchi, Geradin, Van
Cite as: 585 U. S. 529 (2018) 535
Opinion of the Court
Damme, & Affeldt, Market Defnition in Two-Sided Markets:
Theory and Practice, 10 J. Competition L. & Econ. 293, 296
(2014) (Filistrucchi). For credit cards, that interaction is a
transaction. Thus, credit-card networks are a special type
of two-sided platform known as a “transaction” platform.
See id., at 301, 304, 307; Evans & Noel 676–678. The key
feature of transaction platforms is that they cannot make a
sale to one side of the platform without simultaneously
making a sale to the other. See Klein, Lerner, Murphy, &
Plache, Competition in Two-Sided Markets: The Antitrust
Economics of Payment Card Interchange Fees, 73 Antitrust
L. J. 571, 580, 583 (2006) (Klein). For example, no creditcard
transaction can occur unless both the merchant and the
cardholder simultaneously agree to use the same credit-card
network. See Filistrucchi 301.
Two-sided platforms differ from traditional markets in important
ways. Most relevant here, two-sided platforms
often exhibit what economists call “indirect network effects.”
Evans & Schmalensee 667. Indirect network effects
exist where the value of the two-sided platform to one
group of participants depends on how many members of a
different group participate. D. Evans & R. Schmalensee,
Matchmakers: The New Economics of Multisided Platforms
25 (2016). In other words, the value of the services that
a two-sided platform provides increases as the number of
participants on both sides of the platform increases. A
credit card, for example, is more valuable to cardholders
when more merchants accept it and is more valuable to merchants
when more cardholders use it. See Evans & Noel
686–687; Klein 580, 584. To ensure suffcient participation,
two-sided platforms must be sensitive to the prices that they
charge each side. See Evans & Schmalensee 675; Evans &
Noel 680; Muris, Payment Card Regulation and the (Mis)Application
of the Economics of Two-Sided Markets, 2005
Colum. Bus. L. Rev. 515, 532–533 (Muris); Rochet & Tirole,
536 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
Platform Competition in Two-Sided Markets, 1 J. Eur. Econ.
Assn. 990, 1013 (2003). Raising the price on side A risks
losing participation on that side, which decreases the value
of the platform to side B. If participants on side B leave
due to this loss in value, then the platform has even less
value to side A—risking a feedback loop of declining demand.
See Evans & Schmalensee 675; Evans & Noel 680–681.
Two-sided platforms therefore must take these indirect network
effects into account before making a change in price on
either side. See Evans & Schmalensee 675; Evans & Noel
680–681.1
Sometimes indirect network effects require two-sided platforms
to charge one side much more than the other. See
Evans & Schmalensee 667, 675, 681, 690–691; Evans & Noel
668, 691; Klein 585; Filistrucchi 300. For two-sided platforms,
“ `the [relative] price structure matters, and platforms
must design it so as to bring both sides on board.' ”
Evans & Schmalensee 669 (quoting Rochet & Tirole, Two-
Sided Markets: A Progress Report, 37 RAND J. Econ. 645,
646 (2006)). The optimal price might require charging the
side with more elastic demand a below-cost (or even negative)
price. See Muris 519, 550; Klein 579; Evans & Schmalensee
675; Evans & Noel 681. With credit cards, for example,
networks often charge cardholders a lower fee than
merchants because cardholders are more price sensitive.2
1 In a competitive market, indirect network effects also encourage companies
to take increased profts from a price increase on side A and spend
them on side B to ensure more robust participation on that side and to
stem the impact of indirect network effects. See Evans & Schmalensee
688; Evans & Noel 670–671, 695. Indirect network effects thus limit the
platform's ability to raise overall prices and impose a check on its market
power. See Evans & Schmalensee 688; Evans & Noel 695.
2 “Cardholders are more price-sensitive because many consumers have
multiple payment methods, including alternative payment cards. Most
merchants, by contrast, cannot accept just one major card because they
are likely to lose proftable incremental sales if they do not take [all] the
major payment cards. Because most consumers do not carry all of the
Cite as: 585 U. S. 529 (2018) 537
Opinion of the Court
See Muris 522; Klein 573–574, 585, 595. In fact, the network
might well lose money on the cardholder side by offering
rewards such as cash back, airline miles, or gift cards. See
Klein 587; Evans & Schmalensee 672. The network can do
this because increasing the number of cardholders increases
the value of accepting the card to merchants and, thus, increases
the number of merchants who accept it. Muris 522;
Evans & Schmalensee 692. Networks can then charge those
merchants a fee for every transaction (typically a percentage
of the purchase price). Striking the optimal balance of the
prices charged on each side of the platform is essential for
two-sided platforms to maximize the value of their services
and to compete with their rivals.
B
Amex, Visa, MasterCard, and Discover are the four dominant
participants in the credit-card market. Visa, which is
by far the largest, has 45% of the market as measured by
transaction volume.3 Amex and MasterCard trail with
26.4% and 23.3%, respectively, while Discover has just 5.3%
of the market.
Visa and MasterCard have signifcant structural advantages
over Amex. Visa and MasterCard began as bank cooperatives
and thus almost every bank that offers credit
cards is in the Visa or MasterCard network. This makes it
very likely that the average consumer carries, and the average
merchant accepts, Visa or MasterCard. As a result, the
vast majority of Amex cardholders have a Visa or Master-
Card, but only a small number of Visa and MasterCard cardholders
have an Amex. Indeed, Visa and MasterCard account
for more than 432 million cards in circulation in the
United States, while Amex has only 53 million. And while
3.4 million merchants at 6.4 million locations accept Amex,
major payment cards, refusing to accept a major card may cost the merchant
substantial sales.” Muris 522.
3 All fgures are accurate as of 2013.
538 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
nearly three million more locations accept Visa, MasterCard,
and Discover.4
Amex competes with Visa and MasterCard by using a different
business model. While Visa and MasterCard earn
half of their revenue by collecting interest from their cardholders,
Amex does not. Amex instead earns most of its
revenue from merchant fees. Amex's business model thus
focuses on cardholder spending rather than cardholder lending.
To encourage cardholder spending, Amex provides
better rewards than other networks. Due to its superior
rewards, Amex tends to attract cardholders who are wealthier
and spend more money. Merchants place a higher value
on these cardholders, and Amex uses this advantage to recruit
merchants.
Amex's business model has signifcantly infuenced the
credit-card market. To compete for the valuable cardholders
that Amex attracts, both Visa and MasterCard have introduced
premium cards that, like Amex, charge merchants
higher fees and offer cardholders better rewards. To maintain
their lower merchant fees, Visa and MasterCard have
created a sliding scale for their various cards—charging
merchants less for low-reward cards and more for highreward
cards. This differs from Amex's strategy, which is
to charge merchants the same fee no matter the rewards that
its card offers. Another way that Amex has infuenced the
credit-card market is by making banking and card-payment
services available to low-income individuals, who otherwise
could not qualify for a credit card and could not afford the
fees that traditional banks charge. See 2 Record 3835–3837,
4 Discover entered the credit-card market several years after Amex,
Visa, and MasterCard. It nonetheless managed to gain a foothold because
Sears marketed Discover to its already signifcant base of private-label
cardholders. Discover's business model shares certain features with
Amex, Visa, and MasterCard. Like Amex, Discover interacts directly
with its cardholders. But like Visa and MasterCard, Discover uses banks
that cooperate with its network to interact with merchants.
Cite as: 585 U. S. 529 (2018) 539
Opinion of the Court
4527–4529. In sum, Amex's business model has stimulated
competitive innovations in the credit-card market, increasing
the volume of transactions and improving the quality of the
services.
Despite these improvements, Amex's business model
sometimes causes friction with merchants. To maintain the
loyalty of its cardholders, Amex must continually invest in
its rewards program. But, to fund those investments, Amex
must charge merchants higher fees than its rivals. Even
though Amex's investments beneft merchants by encouraging
cardholders to spend more money, merchants would prefer
not to pay the higher fees. One way that merchants
try to avoid them, while still enticing Amex's cardholders to
shop at their stores, is by dissuading cardholders from using
Amex at the point of sale. This practice is known as
“steering.”
Amex has prohibited steering since the 1950s by placing
antisteering provisions in its contracts with merchants.
These antisteering provisions prohibit merchants from implying
a preference for non-Amex cards; dissuading customers
from using Amex cards; persuading customers to use
other cards; imposing any special restrictions, conditions,
disadvantages, or fees on Amex cards; or promoting other
cards more than Amex. The antisteering provisions do not,
however, prevent merchants from steering customers toward
debit cards, checks, or cash.
C
In October 2010, the United States and several States (collectively,
plaintiffs) sued Amex, claiming that its antisteering
provisions violate § 1 of the Sherman Act, 26 Stat. 209, as
amended, 15 U. S. C. § 1.5 After a 7-week trial, the District
5 Plaintiffs also sued Visa and MasterCard, claiming that their antisteering
provisions violated § 1. But Visa and MasterCard voluntarily
revoked their antisteering provisions and are no longer parties to this
case.
540 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
Court agreed that Amex's antisteering provisions violate § 1.
United States v. American Express Co., 88 F. Supp. 3d 143,
151–152 (EDNY 2015). It found that the credit-card market
should be treated as two separate markets—one for merchants
and one for cardholders. See id., at 171–175. Evaluating
the effects on the merchant side of the market, the
District Court found that Amex's antisteering provisions are
anticompetitive because they result in higher merchant fees.
See id., at 195–224.
The Court of Appeals for the Second Circuit reversed.
United States v. American Express Co., 838 F. 3d 179, 184
(2016). It concluded that the credit-card market is one market,
not two. Id., at 196–200. Evaluating the credit-card
market as a whole, the Second Circuit concluded that Amex's
antisteering provisions were not anticompetitive and did not
violate § 1. See id., at 200–206.
We granted certiorari, 583 U. S. 931 (2017), and now affrm.
II
Section 1 of the Sherman Act prohibits “[e]very contract,
combination in the form of trust or otherwise, or conspiracy,
in restraint of trade or commerce among the several States.”
15 U. S. C. § 1. This Court has long recognized that, “[i]n
view of the common law and the law in this country” when
the Sherman Act was passed, the phrase “restraint of trade”
is best read to mean “undue restraint.” Standard Oil Co. of
N. J. v. United States, 221 U. S. 1, 59–60 (1911). This Court's
precedents have thus understood § 1 “to outlaw only unreasonable
restraints.” State Oil Co. v. Khan, 522 U. S. 3, 10
(1997) (emphasis added).
Restraints can be unreasonable in one of two ways. A
small group of restraints are unreasonable per se because
they “ ` “always or almost always tend to restrict competition
and decrease output.” ' ” Business Electronics Corp. v.
Sharp Electronics Corp., 485 U. S. 717, 723 (1988). Typically
only “horizontal” restraints—restraints “imposed by
Cite as: 585 U. S. 529 (2018) 541
Opinion of the Court
agreement between competitors”—qualify as unreasonable
per se. Id., at 730. Restraints that are not unreasonable
per se are judged under the “rule of reason.” Id., at 723.
The rule of reason requires courts to conduct a fact-specifc
assessment of “market power and market structure . . . to
assess the [restraint]'s actual effect” on competition. Copperweld
Corp. v. Independence Tube Corp., 467 U. S. 752, 768
(1984). The goal is to “distinguis[h] between restraints with
anticompetitive effect that are harmful to the consumer and
restraints stimulating competition that are in the consumer's
best interest.” Leegin Creative Leather Products, Inc. v.
PSKS, Inc., 551 U. S. 877, 886 (2007).
In this case, both sides correctly acknowledge that Amex's
antisteering provisions are vertical restraints—i. e., restraints
“imposed by agreement between frms at different
levels of distribution.” Business Electronics, supra, at 730.
The parties also correctly acknowledge that, like nearly
every other vertical restraint, the antisteering provisions
should be assessed under the rule of reason. See Leegin,
supra, at 882; State Oil, supra, at 19; Business Electronics,
supra, at 726; Continental T. V., Inc. v. GTE Sylvania Inc.,
433 U. S. 36, 57 (1977).
To determine whether a restraint violates the rule of reason,
the parties agree that a three-step, burden-shifting
framework applies. Under this framework, the plaintiff has
the initial burden to prove that the challenged restraint has
a substantial anticompetitive effect that harms consumers in
the relevant market. See 1 J. Kalinowski, Antitrust Laws
and Trade Regulation § 12.02[1] (2d ed. 2017) (Kalinowski);
P. Areeda & H. Hovenkamp, Fundamentals of Antitrust Law
§ 15.02[B] (4th ed. 2017) (Areeda & Hovenkamp); Capital Imaging
Assoc., P. C. v. Mohawk Valley Medical Associates,
Inc., 996 F. 2d 537, 543 (CA2 1993). If the plaintiff carries
its burden, then the burden shifts to the defendant to show
a procompetitive rationale for the restraint. See 1 Kalinowski
§ 12.02[1]; Areeda & Hovenkamp § 15.02[B]; Capital Im542
OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
aging Assoc., supra, at 543. If the defendant makes this
showing, then the burden shifts back to the plaintiff to demonstrate
that the procompetitive effciencies could be reasonably
achieved through less anticompetitive means. See 1
Kalinowski § 12.02[1]; Capital Imaging Assoc., supra, at 543.
Here, the parties ask us to decide whether the plaintiffs
have carried their initial burden of proving that Amex's antisteering
provisions have an anticompetitive effect. The
plaintiffs can make this showing directly or indirectly. Direct
evidence of anticompetitive effects would be “ `proof of
actual detrimental effects [on competition],' ” FTC v. Indiana
Federation of Dentists, 476 U. S. 447, 460 (1986), such
as reduced output, increased prices, or decreased quality in
the relevant market, see 1 Kalinowski § 12.02[2]; Craftsman
Limousine, Inc. v. Ford Motor Co., 491 F. 3d 381, 390 (CA8
2007); Virgin Atlantic Airways Ltd. v. British Airways
PLC, 257 F. 3d 256, 264 (CA2 2001). Indirect evidence
would be proof of market power plus some evidence that the
challenged restraint harms competition. See 1 Kalinowski
§ 12.02[2]; Tops Markets, Inc. v. Quality Markets, Inc., 142
F. 3d 90, 97 (CA2 1998); Spanish Broadcasting System of
Fla. v. Clear Channel Communications, Inc., 376 F. 3d 1065,
1073 (CA11 2004).
Here, the plaintiffs rely exclusively on direct evidence to
prove that Amex's antisteering provisions have caused anticompetitive
effects in the credit-card market.6 To assess
this evidence, we must frst defne the relevant market.
Once defned, it becomes clear that the plaintiffs' evidence is
insuffcient to carry their burden.
A
Because “[l]egal presumptions that rest on formalistic distinctions
rather than actual market realities are generally
6 Although the plaintiffs relied on indirect evidence below, they have
abandoned that argument in this Court. See Brief for United States 23,
n. 4 (citing Pet. for Cert. i, 18–25).
Cite as: 585 U. S. 529 (2018) 543
Opinion of the Court
disfavored in antitrust law,” Eastman Kodak Co. v. Image
Technical Services, Inc., 504 U. S. 451, 466–467 (1992), courts
usually cannot properly apply the rule of reason without an
accurate defnition of the relevant market.7 “Without a
defnition of [the] market there is no way to measure [the
defendant's] ability to lessen or destroy competition. ”
Walker Process Equipment, Inc. v. Food Machinery &
Chemical Corp., 382 U. S. 172, 177 (1965); accord, 2 Kalinowski
§ 24.01[4][a]. Thus, the relevant market is defned as
“the area of effective competition.” Ibid. Typically this is
the “arena within which signifcant substitution in consumption
or production occurs.” Areeda & Hovenkamp § 5.02; accord,
2 Kalinowski § 24.02[1]; United States v. Grinnell Corp.,
7 The plaintiffs argue that we need not defne the relevant market in
this case because they have offered actual evidence of adverse effects on
competition—namely, increased merchant fees. See Brief for United
States 40–41 (citing FTC v. Indiana Federation of Dentists, 476 U. S.
447 (1986), and Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643 (1980)
(per curiam)). We disagree. The cases that the plaintiffs cite for this
proposition evaluated whether horizontal restraints had an adverse effect
on competition. See Indiana Federation of Dentists, supra, at 450–451,
459 (agreement between competing dentists not to share X rays with insurance
companies); Catalano, supra, at 644–645, 650 (agreement among
competing wholesalers not to compete on extending credit to retailers).
Given that horizontal restraints involve agreements between competitors
not to compete in some way, this Court concluded that it did not need to
precisely defne the relevant market to conclude that these agreements
were anticompetitive. See Indiana Federation of Dentists, supra, at
460–461; Catalano, supra, at 648–649. But vertical restraints are different.
See Arizona v. Maricopa County Medical Soc., 457 U. S. 332, 348,
n. 18 (1982); Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551
U. S. 877, 888 (2007). Vertical restraints often pose no risk to competition
unless the entity imposing them has market power, which cannot be evaluated
unless the Court frst defnes the relevant market. See id., at 898
(noting that a vertical restraint “may not be a serious concern unless the
relevant entity has market power”); Easterbrook, Vertical Arrangements
and the Rule of Reason, 53 Antitrust L. J. 135, 160 (1984) (“[T]he possibly
anticompetitive manifestations of vertical arrangements can occur only if
there is market power”).
544 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
384 U. S. 563, 571 (1966). But courts should “combin[e]” different
products or services into “a single market” when “that
combination refects commercial realities.” Id., at 572; see
also Brown Shoe Co. v. United States, 370 U. S. 294, 336
(1962) (pointing out that “the defnition of the relevant market”
must “ `correspond to the commercial realities' of the
industry”).
As explained, credit-card networks are two-sided platforms.
Due to indirect network effects, two-sided platforms
cannot raise prices on one side without risking a feedback
loop of declining demand. See Evans & Schmalensee 674–
675; Evans & Noel 680–681. And the fact that two-sided
platforms charge one side a price that is below or above cost
refects differences in the two sides' demand elasticity, not
market power or anticompetitive pricing. See Klein 574,
595, 598, 626. Price increases on one side of the platform
likewise do not suggest anticompetitive effects without some
evidence that they have increased the overall cost of the
platform's services. See id., at 575, 594, 626. Thus, courts
must include both sides of the platform—merchants and
cardholders—when defning the credit-card market.
To be sure, it is not always necessary to consider both
sides of a two-sided platform. A market should be treated
as one sided when the impacts of indirect network effects
and relative pricing in that market are minor. See Filistrucchi
321–322. Newspapers that sell advertisements, for
example, arguably operate a two-sided platform because
the value of an advertisement increases as more people read
the newspaper. Id., at 297, 315; Klein 579. But in the
newspaper-advertisement market, the indirect network effects
operate in only one direction; newspaper readers are
largely indifferent to the amount of advertising that a newspaper
contains. See Filistrucchi 321, 323, and n. 99; Klein
583. Because of these weak indirect network effects, the
market for newspaper advertising behaves much like a onesided
market and should be analyzed as such. See FilistrucCite
as: 585 U. S. 529 (2018) 545
Opinion of the Court
chi 321; Times-Picayune Publishing Co. v. United States,
345 U. S. 594, 610 (1953).
But two-sided transaction platforms, like the credit-card
market, are different. These platforms facilitate a single,
simultaneous transaction between participants. For credit
cards, the network can sell its services only if a merchant and
cardholder both simultaneously choose to use the network.
Thus, whenever a credit-card network sells one transaction's
worth of card-acceptance services to a merchant it also must
sell one transaction's worth of card-payment services to a
cardholder. It cannot sell transaction services to either
cardholders or merchants individually. See Klein 583 (“Because
cardholders and merchants jointly consume a single
product, payment card transactions, their consumption of
payment card transactions must be directly proportional”).
To optimize sales, the network must fnd the balance of pricing
that encourages the greatest number of matches between
cardholders and merchants.
Because they cannot make a sale unless both sides of the
platform simultaneously agree to use their services, twosided
transaction platforms exhibit more pronounced indirect
network effects and interconnected pricing and demand.
Transaction platforms are thus better understood as
“suppl[ying] only one product”—transactions. Klein 580.
In the credit-card market, these transactions “are jointly
consumed by a cardholder, who uses the payment card to
make a transaction, and a merchant, who accepts the payment
card as a method of payment.” Ibid. Tellingly, credit
cards determine their market share by measuring the volume
of transactions they have sold.8
8 Contrary to the dissent's assertion, post, at 562–563, merchant services
and cardholder services are not complements. See Filistrucchi 297 (“[A]
two-sided market [is] different from markets for complementary products,
in which both products are bought by the same buyers, who, in their buying
decisions, can therefore be expected to take into account both prices”).
As already explained, credit-card companies are best understood as sup546
OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
Evaluating both sides of a two-sided transaction platform
is also necessary to accurately assess competition. Only
other two-sided platforms can compete with a two-sided platform
for transactions. See Filistrucchi 301. A credit-card
company that processed transactions for merchants, but that
had no cardholders willing to use its card, could not compete
with Amex. See ibid. Only a company that had both cardholders
and merchants willing to use its network could sell
transactions and compete in the credit-card market. Similarly,
if a merchant accepts the four major credit cards, but
a cardholder only uses Visa or Amex, only those two cards
can compete for the particular transaction. Thus, competition
cannot be accurately assessed by looking at only one
side of the platform in isolation.9
For all these reasons, “[i]n two-sided transaction markets,
only one market should be defned.” Id., at 302; see also
Evans & Noel 671 (“[F]ocusing on one dimension of . . . competition
tends to distort the competition that actually exists
among [two-sided platforms]”). Any other analysis would
lead to “ ` “mistaken inferences” ' ” of the kind that could
“ ` “chill the very conduct the antitrust laws are designed to
protect.” ' ” Brooke Group Ltd. v. Brown & Williamson Tobacco
Corp., 509 U. S. 209, 226 (1993); see also Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 594
(1986) (“ `[W]e must be concerned lest a rule or precedent
that authorizes a search for a particular type of undesirable
pricing behavior end up by discouraging legitimate price
competition' ”); Leegin, 551 U. S., at 895 (noting that courts
plying only one product—transactions—which is jointly consumed by a
cardholder and a merchant. See Klein 580. Merchant services and cardholder
services are both inputs to this single product. See ibid.
9 Nontransaction platforms, by contrast, often do compete with companies
that do not operate on both sides of their platform. A newspaper
that sells advertising, for example, might have to compete with a television
network, even though the two do not meaningfully compete for viewers.
See Filistrucchi 301.
Cite as: 585 U. S. 529 (2018) 547
Opinion of the Court
should avoid “increas[ing] the total cost of the antitrust system
by prohibiting procompetitive conduct the antitrust
laws should encourage”). Accordingly, we will analyze the
two-sided market for credit-card transactions as a whole to
determine whether the plaintiffs have shown that Amex's
antisteering provisions have anticompetitive effects.
B
The plaintiffs have not carried their burden to prove anticompetitive
effects in the relevant market. The plaintiffs
stake their entire case on proving that Amex's agreements
increase merchant fees. We find this argument
unpersuasive.
As an initial matter, the plaintiffs' argument about merchant
fees wrongly focuses on only one side of the two-sided
credit-card market. As explained, the credit-card market
must be defned to include both merchants and cardholders.
Focusing on merchant fees alone misses the mark because
the product that credit-card companies sell is transactions,
not services to merchants, and the competitive effects of a
restraint on transactions cannot be judged by looking at merchants
alone. Evidence of a price increase on one side of a
two-sided transaction platform cannot by itself demonstrate
an anticompetitive exercise of market power. To demonstrate
anticompetitive effects on the two-sided credit-card
market as a whole, the plaintiffs must prove that Amex's
antisteering provisions increased the cost of credit-card
transactions above a competitive level, reduced the number
of credit-card transactions, or otherwise stifed competition
in the credit-card market. See 1 Kalinowski § 12.02[2];
Craftsman Limousine, Inc., 491 F. 3d, at 390; Virgin Atlantic
Airways Ltd., 257 F. 3d, at 264. They failed to do so.
1
The plaintiffs did not offer any evidence that the price of
credit-card transactions was higher than the price one would
548 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
expect to fnd in a competitive market. As the District
Court found, the plaintiffs failed to offer any reliable measure
of Amex's transaction price or proft margins. 88
F. Supp. 3d, at 198, 215. And the evidence about whether
Amex charges more than its competitors was ultimately
inconclusive. Id., at 199, 202, 215.
Amex's increased merchant fees refect increases in the
value of its services and the cost of its transactions, not an
ability to charge above a competitive price. Amex began
raising its merchant fees in 2005 after Visa and MasterCard
raised their fees in the early 2000s. Id., at 195, 199–200.
As explained, Amex has historically charged higher merchant
fees than these competitors because it delivers wealthier
cardholders who spend more money. Id., at 200–201.
Amex's higher merchant fees are based on a careful study of
how much additional value its cardholders offer merchants.
See id., at 192–193. On the other side of the market, Amex
uses its higher merchant fees to offer its cardholders a more
robust rewards program, which is necessary to maintain
cardholder loyalty and encourage the level of spending that
makes Amex valuable to merchants. Id., at 160, 191–195.
That Amex allocates prices between merchants and cardholders
differently from Visa and MasterCard is simply not
evidence that it wields market power to achieve anticompetitive
ends. See Evans & Noel 670–671; Klein 574–575, 594–
595, 598, 626.
In addition, the evidence that does exist cuts against the
plaintiffs' view that Amex's antisteering provisions are the
cause of any increases in merchant fees. Visa and Master-
Card's merchant fees have continued to increase, even at
merchant locations where Amex is not accepted and, thus,
Amex's antisteering provisions do not apply. See 88 F.
Supp. 3d, at 222. This suggests that the cause of increased
merchant fees is not Amex's antisteering provisions, but
rather increased competition for cardholders and a correCite
as: 585 U. S. 529 (2018) 549
Opinion of the Court
sponding marketwide adjustment in the relative price
charged to merchants. See Klein 575, 609.
2
The plaintiffs did offer evidence that Amex increased the
percentage of the purchase price that it charges merchants
by an average of 0.09% between 2005 and 2010 and that this
increase was not entirely spent on cardholder rewards. See
88 F. Supp. 3d, at 195–197, 215. The plaintiffs believe that
this evidence shows that the price of Amex's transactions
increased.
Even assuming the plaintiffs are correct, this evidence
does not prove that Amex's antisteering provisions gave it
the power to charge anticompetitive prices. “Market power
is the ability to raise price proftably by restricting output.”
Areeda & Hovenkamp § 5.01 (emphasis added); accord,
Kodak, 504 U. S., at 464; Business Electronics, 485 U. S., at
723. This Court will “not infer competitive injury from
price and output data absent some evidence that tends to
prove that output was restricted or prices were above a
competitive level.” Brooke Group Ltd., 509 U. S., at 237.
There is no such evidence in this case. The output of creditcard
transactions grew dramatically from 2008 to 2013, increasing
30%. See 838 F. 3d, at 206. “Where . . . output is
expanding at the same time prices are increasing, rising
prices are equally consistent with growing product demand.”
Brooke Group Ltd., supra, at 237. And, as previously explained,
the plaintiffs did not show that Amex charged more
than its competitors.
3
The plaintiffs also failed to prove that Amex's antisteering
provisions have stifed competition among credit-card companies.
To the contrary, while these agreements have been in
place, the credit-card market experienced expanding output
and improved quality. Amex's business model spurred Visa
550 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
and MasterCard to offer new premium card categories with
higher rewards. And it has increased the availability of
card services, including free banking and card-payment services
for low-income customers who otherwise would not
be served. Indeed, between 1970 and 2001, the percentage
of households with credit cards more than quadrupled, and
the proportion of households in the bottom-income quintile
with credit cards grew from just 2% to over 38%. See D.
Evans & R. Schmalensee, Paying With Plastic: The Digital
Revolution in Buying and Borrowing 88–89 (2d ed. 2005)
(Paying With Plastic).
Nor have Amex's antisteering provisions ended competition
between credit-card networks with respect to merchant
fees. Instead, ferce competition between networks has constrained
Amex's ability to raise these fees and has, at times,
forced Amex to lower them. For instance, when Amex
raised its merchant prices between 2005 and 2010, some merchants
chose to leave its network. 88 F. Supp. 3d, at 197.
And when its remaining merchants complained, Amex
stopped raising its merchant prices. Id., at 198. In another
instance in the late 1980s and early 1990s, competition forced
Amex to offer lower merchant fees to “everyday spend” merchants—
supermarkets, gas stations, pharmacies, and the
like—to persuade them to accept Amex. See id., at 160–
161, 202.
In addition, Amex's competitors have exploited its higher
merchant fees to their advantage. By charging lower merchant
fees, Visa, MasterCard, and Discover have achieved
broader merchant acceptance—approximately 3 million more
locations than Amex. Id., at 204. This broader merchant
acceptance is a major advantage for these networks and a
signifcant challenge for Amex, since consumers prefer cards
that will be accepted everywhere. Ibid. And to compete
even further with Amex, Visa and MasterCard charge different
merchant fees for different types of cards to maintain
their comparatively lower merchant fees and broader acceptCite
as: 585 U. S. 529 (2018) 551
Opinion of the Court
ance. Over the long run, this competition has created a
trend of declining merchant fees in the credit-card market.
In fact, since the frst credit card was introduced in the
1950s, merchant fees—including Amex's merchant fees—
have decreased by more than half. See id., at 202–203; Paying
With Plastic 54, 126, 152.
Lastly, there is nothing inherently anticompetitive about
Amex's antisteering provisions. These agreements actually
stem negative externalities in the credit-card market and
promote interbrand competition. When merchants steer
cardholders away from Amex at the point of sale, it undermines
the cardholder's expectation of “welcome acceptance”—
the promise of a frictionless transaction. 88 F. Supp.
3d, at 156. A lack of welcome acceptance at one merchant
makes a cardholder less likely to use Amex at all other merchants.
This externality endangers the viability of the entire
Amex network. And it undermines the investments
that Amex has made to encourage increased cardholder
spending, which discourages investments in rewards and
ultimately harms both cardholders and merchants. Cf. Leegin,
551 U. S., at 890–891 (recognizing that vertical restraints
can prevent retailers from free riding and thus
increase the availability of “tangible or intangible services or
promotional efforts” that enhance competition and consumer
welfare). Perhaps most importantly, antisteering provisions
do not prevent Visa, MasterCard, or Discover from
competing against Amex by offering lower merchant fees or
promoting their broader merchant acceptance.10
10 The plaintiffs argue that United States v. Topco Associates, Inc., 405
U. S. 596, 610 (1972), forbids any restraint that would restrict competition
in part of the market—here, for example, merchant steering. See Brief
for Petitioners and Respondents Nebraska, Tennessee, and Texas 30, 42.
Topco does not stand for such a broad proposition. Topco concluded that a
horizontal agreement between competitors was unreasonable per se, even
though the agreement did not extend to every competitor in the market.
See 405 U. S., at 599, 608. A horizontal agreement between competitors
is markedly different from a vertical agreement that incidentally affects
552 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
In sum, the plaintiffs have not satisfed the frst step of the
rule of reason. They have not carried their burden of proving
that Amex's antisteering provisions have anticompetitive
effects. Amex's business model has spurred robust interbrand
competition and has increased the quality and quantity
of credit-card transactions. And it is “[t]he promotion of interbrand
competition,” after all, that “is . . . `the primary
purpose of the antitrust laws.' ” Id., at 890.
* * *
Because Amex's antisteering provisions do not unreasonably
restrain trade, we affrm the judgment of the Court of
Appeals.
It is so ordered.
Justice Breyer, with whom Justice Ginsburg,
Justice Sotomayor, and Justice Kagan join, dissenting.
For more than 120 years, the American economy has prospered
by charting a middle path between pure laissez-faire
and state capitalism, governed by an antitrust law “dedicated
to the principle that markets, not individual frms and
certainly not political power, produce the optimal mixture of
goods and services.” 1 P. Areeda & H. Hovenkamp, Antitrust
Law ¶100b, p. 4 (4th ed. 2013) (Areeda & Hovenkamp).
By means of a strong antitrust law, the United States has
sought to avoid the danger of monopoly capitalism. Long
gone, we hope, are the days when the great trusts presided
unfettered by competition over the American economy.
This lawsuit is emblematic of the American approach.
Many governments around the world have responded to concerns
about the high fees that credit-card companies often
charge merchants by regulating such fees directly. See
GAO, Credit and Debit Cards: Federal Entities Are Taking
one particular method of competition. See Leegin, 551 U. S., at 888; Maricopa
County Medical Soc., 457 U. S., at 348, n. 18.
Cite as: 585 U. S. 529 (2018) 553
Breyer, J., dissenting
Actions To Limit Their Interchange Fees, but Additional
Revenue Collection Cost Savings May Exist 31–35 (GAO–
08–558, 2008). The United States has not followed that approach.
The Government instead fled this lawsuit, which
seeks to restore market competition over credit-card merchant
fees by eliminating a contractual barrier with anticompetitive
effects. The majority rejects that effort. But because
the challenged contractual term clearly has serious
anticompetitive effects, I dissent.
I
I agree with the majority and the parties that this case is
properly evaluated under the three-step “rule of reason” that
governs many antitrust lawsuits. Ante, at 541–542. Under
that approach, a court looks frst at the agreement or restraint
at issue to assess whether it has had, or is likely to
have, anticompetitive effects. FTC v. Indiana Federation
of Dentists, 476 U. S. 447, 459 (1986). In doing so, the court
normally asks whether the restraint may tend to impede
competition and, if so, whether those who have entered into
that restraint have suffcient economic or commercial power
for the agreement to make a negative difference. See id.,
at 459–461. Sometimes, but not always, a court will try to
determine the appropriate market (the market that the
agreement affects) and determine whether those entering
into that agreement have the power to raise prices above the
competitive level in that market. See ibid.
It is important here to understand that in cases under § 1
of the Sherman Act (unlike in cases challenging a merger
under § 7 of the Clayton Act, 15 U. S. C. § 18), it may well
be unnecessary to undertake a sometimes complex, market
power inquiry:
“Since the purpose [in a Sherman Act § 1 case] of the
inquiries into . . . market power is [simply] to determine
whether an arrangement has the potential for genuine
adverse effects on competition, `proof of actual detri554
OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
mental effects, such as a reduction in output,' can obviate
the need for an inquiry into market power, which
is but a `surrogate for detrimental effects.' ” Indiana
Federation of Dentists, supra, at 460–461 (quoting 7
P. Areeda, Antitrust Law ¶1511, p. 429 (3d ed. 1986)).
Second (as treatise writers summarize the case law), if an
antitrust plaintiff meets the initial burden of showing that
an agreement will likely have anticompetitive effects, normally
the “burden shifts to the defendant to show that the
restraint in fact serves a legitimate objective.” 7 Areeda &
Hovenkamp ¶1504b, at 415; see California Dental Assn. v.
FTC, 526 U. S. 756, 771 (1999); id., at 788 (Breyer, J.,
dissenting).
Third, if the defendant successfully bears this burden, the
antitrust plaintiff may still carry the day by showing that it
is possible to meet the legitimate objective in less restrictive
ways, or, perhaps by showing that the legitimate objective
does not outweigh the harm that competition will suffer, i. e.,
that the agreement “on balance” remains unreasonable. 7
Areeda & Hovenkamp ¶1507a, at 442.
Like the Court of Appeals and the parties, the majority
addresses only the frst step of that three-step framework.
Ante, at 542.
II
A
This case concerns the credit-card business. As the majority
explains, ante, at 534–535, that business involves the
selling of two different but related card services. First, when
a shopper uses a credit card to buy something from a participating
merchant, the credit-card company pays the merchant
the amount of money that the merchant's customer has
charged to his card and charges the merchant a fee, say, 5%,
for that speedy-payment service. I shall refer to that kind
of transaction as a merchant-related card service. Second,
the credit-card company then sends a bill to the merchant's
Cite as: 585 U. S. 529 (2018) 555
Breyer, J., dissenting
customer, the shopper who holds the card; and the shopper
pays the card company the sum that merchant charged the
shopper for the goods or services he or she bought. The
cardholder also often pays the card company a fee, such as
an annual fee for the card or an interest charge for delayed
payment. I shall call that kind of transaction a shopperrelated
card service. The credit-card company can earn revenue
from the sale (directly or indirectly) of each of these
services: (1) speedy payment for merchants and (2) credit for
shoppers. (I say “indirectly” to refect the fact that card
companies often create or use networks of banks as part of
the process—but I have found nothing here suggesting that
that fact makes a signifcant difference to my analysis.)
Sales of the two basic card services are related. A shopper
can pay for a purchase with a particular credit card only
if the merchant has signed up for merchant-related card
services with the company that issued the credit card that
the shopper wishes to use. A frm in the credit-card business
is therefore unlikely to make money unless quite a few
merchants agree to accept that frm's card and quite a few
shoppers agree to carry and use it. In general, the more
merchants that sign up with a particular card company, the
more useful that card is likely to prove to shoppers and so
the more shoppers will sign up; so too, the more shoppers
that carry a particular card, the more useful that card is
likely to prove to merchants (as it obviously helps them obtain
the shoppers' business) and so the more merchants will
sign up. Moreover, as a rough rule of thumb (and assuming
constant charges), the larger the networks of paying merchants
and paying shoppers that a card frm maintains, the
larger the revenues that the frm will likely receive, since
more payments will be processed using its cards. Thus, it
is not surprising that a card company may offer shoppers
incentives (say, points redeemable for merchandise or travel)
for using its card or that a frm might want merchants to
accept its card exclusively.
556 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
B
This case focuses upon a practice called “steering. ”
American Express has historically charged higher merchant
fees than its competitors. App. to Pet. for Cert. 173a–176a.
Hence, fewer merchants accept American Express' cards
than its competitors'. Id., at 184a–187a. But, perhaps because
American Express cardholders are, on average,
wealthier, higher spending, or more loyal to American Express
than other cardholders, vast numbers of merchants still
accept American Express cards. See id., at 156a, 176a–177a,
184a–187a. Those who do, however, would (in order to avoid
the higher American Express fee) often prefer that their customers
use a different card to charge a purchase. Thus, the
merchant has a monetary incentive to “steer” the customer
toward the use of a different card. A merchant might tell
the customer, for example, “American Express costs us
more,” or “please use Visa if you can,” or “free shipping if
you use Discover.” See id., at 100a–102a.
Steering makes a difference, because without it, the shopper
does not care whether the merchant pays more to
American Express than it would pay to a different card
company—the shopper pays the same price either way. But
if steering works, then American Express will fnd it more
diffcult to charge more than its competitors for merchantrelated
services, because merchants will respond by steering
their customers, encouraging them to use other cards.
Thus, American Express dislikes steering; the merchants
like it; and the shoppers may beneft from it, whether because
merchants will offer them incentives to use less expensive
cards or in the form of lower retail prices overall. See
id., at 92a, 97a–104a.
In response to its competitors' efforts to convince merchants
to steer shoppers to use less expensive cards, American
Express tried to stop, or at least to limit, steering by
placing antisteering provisions in most of its contracts with
merchants. It called those provisions “nondiscrimination
Cite as: 585 U. S. 529 (2018) 557
Breyer, J., dissenting
provisions.” They prohibited steering of the forms I have
described above (and others as well). See id., at 95a–96a,
100a–101a. After placing them in its agreements, American
Express found it could maintain, or even raise, its higher
merchant prices without losing too many transactions to
other frms. Id., at 195a–198a. These agreements—the
“nondiscrimination provisions”—led to this lawsuit.
C
In 2010 the United States and 17 States brought this antitrust
case against American Express. They claimed that
the “nondiscrimination provisions” in its contracts with merchants
created an unreasonable restraint of trade. (Initially
Visa and MasterCard were also defendants, but they entered
into consent judgments, dropping similar provisions from
their contracts with merchants.) After a 7-week bench
trial, the District Court entered judgment for the Government,
setting forth its fndings of fact and conclusions of law
in a 97-page opinion. 88 F. Supp. 3d 143 (EDNY 2015).
Because the majority devotes little attention to the District
Court's detailed factual fndings, I will summarize some
of the more signifcant ones here. Among other things, the
District Court found that beginning in 2005 and during the
next fve years, American Express raised the prices it
charged merchants on 20 separate occasions. See id., at
195–196. In doing so, American Express did not take account
of the possibility that large merchants would respond
to the price increases by encouraging shoppers to use a different
credit card because the nondiscrimination provisions
prohibited any such steering. Id., at 215. The District
Court pointed to merchants' testimony stating that, had it
not been for those provisions, the large merchants would
have responded to the price increases by encouraging customers
to use other, less expensive cards. Ibid.
The District Court also found that even though American
Express raised its merchant prices 20 times in this 5-year
558 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
period, it did not lose the business of any large merchant.
Id., at 197. Nor did American Express increase benefts (or
cut credit-card prices) to American Express cardholders in
tandem with the merchant price increases. Id., at 196.
Even had there been no direct evidence of injury to competition,
American Express' ability to raise merchant prices
without losing any meaningful market share, in the District
Court's view, showed that American Express possessed
power in the relevant market. See id., at 195.
The District Court also found that, in the absence of the
provisions, prices to merchants would likely have been lower.
Ibid. It wrote that in the late 1990's, Discover, one of American
Express' competitors, had tried to develop a business
model that involved charging lower prices to merchants than
the other companies charged. Id., at 213. Discover then
invited each “merchant to save money by shifting volume to
Discover,” while simultaneously offering merchants additional
discounts “if they would steer customers to Discover.”
Ibid. The court determined that these efforts failed because
of American Express' (and the other card companies')
“nondiscrimination provisions.” These provisions, the court
found, “denied merchants the ability to express a preference
for Discover or to employ any other tool by which they might
steer share to Discover's lower-priced network.” Id., at 214.
Because the provisions eliminated any advantage that lower
prices might produce, Discover “abandoned its low-price
business model” and raised its merchant fees to match those
of its competitors. Ibid. This series of events, the court
concluded, was “emblematic of the harm done to the competitive
process” by the “nondiscrimination provisions.” Ibid.
The District Court added that it found no offsetting procompetitive
beneft to shoppers. Id., at 225–238. Indeed,
it found no offsetting beneft of any kind. See ibid.
American Express appealed, and the U. S. Court of Appeals
for the Second Circuit held in its favor. 838 F. 3d 179
(2016). The Court of Appeals did not reject any fact found
Cite as: 585 U. S. 529 (2018) 559
Breyer, J., dissenting
by the District Court as “clearly erroneous.” See Fed. Rule
Civ. Proc. 52(a)(6). Rather, it concluded that the District
Court had erred in step 1 of its rule-of-reason analysis by
failing to account for what the Second Circuit called the
credit-card business' “two-sided market” (or “two-sided platform”).
838 F. 3d, at 185–186, 196–200.
III
The majority, like the Court of Appeals, reaches only step
1 in its “rule of reason” analysis. Ante, at 542–543. To repeat,
that step consists of determining whether the challenged
“nondiscrimination provisions” have had, or are likely
to have, anticompetitive effects. See Indiana Federation of
Dentists, 476 U. S., at 459. Do those provisions tend to impede
competition? And if so, does American Express, which
imposed that restraint as a condition of doing business with
its merchant customers, have suffcient economic or commercial
power for the provision to make a negative difference?
See id., at 460–461.
A
Here the District Court found that the challenged provisions
have had signifcant anticompetitive effects. In particular,
it found that the provisions have limited or prevented
price competition among credit-card frms for the business of
merchants. 88 F. Supp. 3d, at 209. That conclusion makes
sense: In the provisions, American Express required the
merchants to agree not to encourage customers to use American
Express' competitors' credit cards, even cards from
those competitors, such as Discover, that intended to charge
the merchants lower prices. See id., at 214. By doing so,
American Express has “disrupt[ed] the normal price-setting
mechanism” in the market. Id., at 209. As a result of the
provisions, the District Court found, American Express was
able to raise merchant prices repeatedly without any signifcant
loss of business, because merchants were unable to respond
to such price increases by encouraging shoppers to
560 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
pay with other cards. Id., at 215. The provisions also
meant that competitors like Discover had little incentive to
lower their merchant prices, because doing so did not lead to
any additional market share. Id., at 214. The provisions
thereby “suppress[ed] [American Express'] competitors' incentive[
s] to offer lower prices . . . resulting in higher proftmaximizing
prices across the network services market.”
Id., at 209. Consumers throughout the economy paid higher
retail prices as a result, and they were denied the opportunity
to accept incentives that merchants might otherwise
have offered to use less expensive cards. Id., at 216, 220.
I should think that, considering step 1 alone, there is little
more that need be said.
The majority, like the Court of Appeals, says that the District
Court should have looked not only at the market for
the card companies' merchant-related services but also at the
market for the card companies' shopper-related services, and
that it should have combined them, treating them as a single
market. Ante, at 546–547; 838 F. 3d, at 197. But I am not
aware of any support for that view in antitrust law. Indeed,
this Court has held to the contrary.
In Times-Picayune Publishing Co. v. United States, 345
U. S. 594, 610 (1953), the Court held that an antitrust court
should begin its defnition of a relevant market by focusing
narrowly on the good or service directly affected by a challenged
restraint. The Government in that case claimed that
a newspaper's advertising policy violated the Sherman Act's
“rule of reason.” See ibid. In support of that argument,
the Government pointed out, and the District Court had
held, that the newspaper dominated the market for the sales
of newspapers to readers in New Orleans, where it was the
sole morning daily newspaper. Ibid. But this Court reversed.
We explained that “every newspaper is a dual
trader in separate though interdependent markets; it sells
the paper's news and advertising content to its readers; in
Cite as: 585 U. S. 529 (2018) 561
Breyer, J., dissenting
effect that readership is in turn sold to the buyers of advertising
space.” Ibid. We then added:
“This case concerns solely one of these markets. The
Publishing Company stands accused not of tying sales
to its readers but only to buyers of general and classifed
space in its papers. For this reason, dominance in the
advertising market, not in readership, must be decisive
in gauging the legality of the Company's unit plan.”
Ibid.
Here, American Express stands accused not of limiting or
harming competition for shopper-related card services, but
only of merchant-related card services, because the challenged
contract provisions appear only in American Express'
contracts with merchants. That is why the District Court
was correct in considering, at step 1, simply whether the
agreement had diminished competition in merchant-related
services.
B
The District Court did refer to market defnition, and the
majority does the same. Ante, at 542–547. And I recognize
that properly defning a market is often a complex
business. Once a court has identifed the good or service
directly restrained, as Times-Picayune Publishing Co. requires,
it will sometimes add to the relevant market what
economists call “substitutes”: other goods or services that
are reasonably substitutable for that good or service. See,
e. g., United States v. E. I. du Pont de Nemours & Co., 351
U. S. 377, 395–396 (1956) (explaining that cellophane market
includes other, substitutable fexible wrapping materials as
well). The reason that substitutes are included in the relevant
market is that they restrain a frm's ability to proftably
raise prices, because customers will switch to the substitutes
rather than pay the higher prices. See 2B Areeda & Hovenkamp
¶561, at 378.
562 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
But while the market includes substitutes, it does not include
what economists call complements: goods or services
that are used together with the restrained product, but that
cannot be substituted for that product. See id., ¶565a, at
429; Eastman Kodak Co. v. Image Technical Services, Inc.,
504 U. S. 451, 463 (1992). An example of complements is
gasoline and tires. A driver needs both gasoline and tires
to drive, but they are not substitutes for each other, and so
the sale price of tires does not check the ability of a gasoline
frm (say, a gasoline monopolist) to raise the price of gasoline
above competitive levels. As a treatise on the subject
states: “Grouping complementary goods into the same market”
is “economic nonsense” and would “undermin[e] the rationale
for the policy against monopolization or collusion in
the frst place.” 2B Areeda & Hovenkamp ¶565a, at 431.
Here, the relationship between merchant-related card
services and shopper-related card services is primarily that
of complements, not substitutes. Like gasoline and tires,
both must be purchased for either to have value. Merchants
upset about a price increase for merchant-related services
cannot avoid that price increase by becoming cardholders, in
the way that, say, a buyer of newspaper advertising can
switch to television advertising or direct mail in response to
a newspaper's advertising price increase. The two categories
of services serve fundamentally different purposes. And
so, also like gasoline and tires, it is diffcult to see any way
in which the price of shopper-related services could act as a
check on the card frm's sale price of merchant-related services.
If anything, a lower price of shopper-related card services
is likely to cause more shoppers to use the card, and increased
shopper popularity should make it easier for a card
frm to raise prices to merchants, not harder, as would be the
case if the services were substitutes. Thus, unless there is
something unusual about this case—a possibility I discuss
below, see infra, at 565–572—there is no justifcation for treating
shopper-related services and merchant-related services
Cite as: 585 U. S. 529 (2018) 563
Breyer, J., dissenting
as if they were part of a single market, at least not at step
1 of the “rule of reason.”
C
Regardless, a discussion of market defnition was legally
unnecessary at step 1. That is because the District Court
found strong direct evidence of anticompetitive effects fowing
from the challenged restraint. 88 F. Supp. 3d, at 207–
224. As I said, supra, at 558, this evidence included Discover's
efforts to break into the credit-card business by
charging lower prices for merchant-related services, only to
fnd that the “nondiscrimination provisions,” by preventing
merchants from encouraging shoppers to use Discover cards,
meant that lower merchant prices did not result in any
additional transactions using Discover credit cards. 88
F. Supp. 3d, at 213–214. The direct evidence also included
the fact that American Express raised its merchant prices
20 times in fve years without losing any appreciable market
share. Id., at 195–198, 208–212. It also included the testimony
of numerous merchants that they would have steered
shoppers away from American Express cards in response to
merchant price increases (thereby checking the ability of
American Express to raise prices) had it not been for the
nondiscrimination provisions. See id., at 221–222. It included
the factual fnding that American Express “did not
even account for the possibility that [large] merchants would
respond to its price increases by attempting to shift share
to a competitor's network” because the nondiscrimination
provisions prohibited steering. Id., at 215. It included
the District Court's ultimate fnding of fact, not overturned
by the Court of Appeals, that the challenged provisions
“were integral to” American Express' “[price] increases and
thereby caused merchants to pay higher prices.” Ibid.
As I explained above, this Court has stated that “[s]ince
the purpose of the inquiries into market defnition and market
power is to determine whether an arrangement has the
potential for genuine adverse effects on competition, proof of
564 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
actual detrimental effects . . . can obviate the need for” those
inquiries. Indiana Federation of Dentists, 476 U. S., at
460–461 (internal quotation marks omitted). That statement
is fully applicable here. Doubts about the District
Court's market-defnition analysis are beside the point in the
face of the District Court's fndings of actual anticompetitive
harm.
The majority disagrees that market defnition is irrelevant.
See ante, at 543–544, and n. 7. The majority explains that
market defnition is necessary because the nondiscrimination
provisions are “vertical restraints” and “[v]ertical restraints
often pose no risk to competition unless the entity imposing
them has market power, which cannot be evaluated unless
the Court frst determines the relevant market.” Ante, at
543, n. 7. The majority thus, in a footnote, seems categorically
to exempt vertical restraints from the ordinary “rule of
reason” analysis that has applied to them since the Sherman
Act's enactment in 1890. The majority's only support for
this novel exemption is Leegin Creative Leather Products,
Inc. v. PSKS, Inc., 551 U. S. 877 (2007). But Leegin held
that the “rule of reason” applied to the vertical restraint at
issue in that case. See id., at 898–899. It said nothing to
suggest that vertical restraints are not subject to the usual
“rule of reason” analysis. See also infra, at 575.
One critical point that the majority's argument ignores is
that proof of actual adverse effects on competition is, a fortiori,
proof of market power. Without such power, the restraints
could not have brought about the anticompetitive
effects that the plaintiff proved. See Indiana Federation
of Dentists, supra, at 460 (“[T]he purpose of the inquiries
into market defnition and market power is to determine
whether an arrangement has the potential for genuine adverse
effects on competition” (emphasis added)). The District
Court's fndings of actual anticompetitive harm from the
nondiscrimination provisions thus showed that, whatever the
relevant market might be, American Express had enough
Cite as: 585 U. S. 529 (2018) 565
Breyer, J., dissenting
power in that market to cause that harm. There is no reason
to require a separate showing of market defnition and
market power under such circumstances. And so the majority's
extensive discussion of market defnition is legally
unnecessary.
D
The majority's discussion of market defnition is also
wrong. Without raising any objection in general with the
longstanding approach I describe above, supra, at 561–563,
the majority agrees with the Court of Appeals that the market
for American Express' card services is special because it
is a “two-sided transaction platform.” Ante, at 534–537,
544–547. The majority explains that credit-card frms connect
two distinct groups of customers: frst, merchants who
accept credit cards, and second, shoppers who use the cards.
Ante, at 534–535; accord, 838 F. 3d, at 186. The majority
adds that “no credit-card transaction can occur unless both
the merchant and the cardholder simultaneously agree to use
the same credit-card network.” Ante, at 535. And it explains
that the credit-card market involves “indirect network
effects,” by which it means that shoppers want a card that
many merchants will accept and merchants want to accept
those cards that many customers have and use. Ibid.
From this, the majority concludes that “courts must include
both sides of the platform—merchants and cardholders—
when defning the credit-card market.” Ante, at 544; accord,
838 F. 3d, at 197.
1
Missing from the majority's analysis is any explanation as
to why, given the purposes that market defnition serves in
antitrust law, the fact that a credit-card frm can be said to
operate a “two-sided transaction platform” means that its
merchant-related and shopper-related services should be
combined into a single market. The phrase “two-sided
transaction platform” is not one of antitrust art—I can fnd
566 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
no case from this Court using those words. The majority
defnes the phrase as covering a business that “offers different
products or services to two different groups who both
depend on the platform to intermediate between them,”
where the business “cannot make a sale to one side of the
platform without simultaneously making a sale to the other”
side of the platform. Ante, at 534–535. I take from that
defnition that there are four relevant features of such businesses
on the majority's account: They (1) offer different
products or services, (2) to different groups of customers, (3)
whom the “platform” connects, (4) in simultaneous transactions.
See ibid.
What is it about businesses with those four features that
the majority thinks justifes a special market-defnition approach
for them? It cannot be the frst two features—that
the company sells different products to different groups of
customers. Companies that sell multiple products to multiple
types of customers are commonplace. A frm might mine
for gold, which it refnes and sells both to dentists in the
form of fllings and to investors in the form of ingots. Or a
frm might drill for both oil and natural gas. Or a frm might
make both ignition switches inserted into auto bodies and
tires used for cars. I have already explained that, ordinarily,
antitrust law will not group the two nonsubstitutable
products together for step 1 purposes. Supra, at 561–563.
Neither should it normally matter whether a company
sells related, or complementary, products, i. e., products
which must both be purchased to have any function, such as
ignition switches and tires, or cameras and flm. It is well
established that an antitrust court in such cases looks at the
product where the attacked restraint has an anticompetitive
effect. Supra, at 560; see Eastman Kodak, 504 U. S., at 463.
The court does not combine the customers for the separate,
nonsubstitutable goods and see if “overall” the restraint has
a negative effect. See ibid.; 2B Areeda & Hovenkamp
Cite as: 585 U. S. 529 (2018) 567
Breyer, J., dissenting
¶565a. That is because, as I have explained, the complementary
relationship between the products is irrelevant to
the purposes of market defnition. See supra, at 561–563.
The majority disputes my characterization of merchantrelated
and shopper-related services as “complements.”
See ante, at 545–546, n. 8. The majority relies on an academic
article which devotes one sentence to the question,
saying that “a two-sided market [is] different from markets
for complementary products [e. g., tires and gas], in which
both products are bought by the same buyers, who, in their
buying decisions, can therefore be expected to take into account
both prices.” Filistrucchi, Geradin, Van Damme, &
Affeldt, Market Defnition in Two-Sided Markets: Theory
and Practice, 10 J. Competition L. & Econ. 293, 297 (2014)
(Filistrucchi). I agree that two-sided platforms—at least as
some academics defne them, but see infra, at 570–572—may
be distinct from some types of complements in the respect
the majority mentions (even though the services resemble
complements because they must be used together for either
to have value). But the distinction the majority mentions
has nothing to do with the relevant question. The relevant
question is whether merchant-related and shopper-related
services are substitutes, one for the other, so that customers
can respond to a price increase for one service by switching
to the other service. As I have explained, the two types of
services are not substitutes in this way. Supra, at 562–564.
And so the question remains, just as before: What is it about
the economic relationship between merchant-related and
shopper-related services that would justify the majority's
novel approach to market defnition?
What about the last two features—that the company connects
the two groups of customers to each other, in simultaneous
transactions? That, too, is commonplace. Consider a
farmers' market. It brings local farmers and local shoppers
together, and transactions will occur only if a farmer and a
568 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
shopper simultaneously agree to engage in one. Should
courts abandon their ordinary step 1 inquiry if several competing
farmers' markets in a city agree that only certain
kinds of farmers can participate, or if a farmers' market
charges a higher fee than its competitors do and prohibits
participating farmers from raising their prices to cover it?
Why? If farmers' markets are special, what about travel
agents that connect airlines and passengers? What about
internet retailers, who, in addition to selling their own goods,
allow (for a fee) other goods-producers to sell over their
networks? Each of those businesses seems to meet the majority's
four-prong defnition.
Apparently as its justifcation for applying a special
market-defnition rule to “two-sided transaction platforms,”
the majority explains that such platforms “often exhibit”
what it calls “indirect network effects.” Ante, at 535. By
this, the majority means that sales of merchant-related card
services and (different) shopper-related card services are
interconnected, in that increased merchant-buyers mean increased
shopper-buyers (the more stores in the card's network,
the more customers likely to use the card), and vice
versa. See ibid. But this, too, is commonplace. Consider,
again, a farmers' market. The more farmers that participate
(within physical and esthetic limits), the more customers
the market will likely attract, and vice versa. So too
with travel agents: The more airlines whose tickets a travel
agent sells, the more potential passengers will likely use that
travel agent, and the more potential passengers that use the
travel agent, the easier it will likely be to convince airlines
to sell through the travel agent. And so forth. Nothing in
antitrust law, to my knowledge, suggests that a court, when
presented with an agreement that restricts competition in
any one of the markets my examples suggest, should abandon
traditional market-defnition approaches and include in
the relevant market services that are complements, not substitutes,
of the restrained good. See supra, at 561–563.
Cite as: 585 U. S. 529 (2018) 569
Breyer, J., dissenting
2
To justify special treatment for “two-sided transaction
platforms,” the majority relies on the Court's decision in
United States v. Grinnell Corp., 384 U. S. 563, 571–572
(1966). In Grinnell, the Court treated as a single market
several different “central station services,” including burglar
alarm services and fre alarm services. Id., at 571. It did
so even though, for consumers, “burglar alarm services are
not interchangeable with fre alarm services.” Id., at 572.
But that is because, for producers, the services were indeed
interchangeable: A company that offered one could easily
offer the other, because they all involve “a single basic service—
the protection of property through use of a central service
station.” Ibid. Thus, the “commercial realit[y]” that
the Grinnell Court relied on, ibid., was that the services
being grouped were what economists call “producer substitutes.”
See 2B Areeda & Hovenkamp ¶561, at 378. And
the law is clear that “two products produced interchangeably
from the same production facilities are presumptively in the
same market,” even if they are not “close substitutes for each
other on the demand side.” Ibid. That is because a frm
that produces one such product can, in response to a price
increase in the other, easily shift its production and thereby
limit its competitor's power to impose the higher price. See
id., ¶561a, at 379.
Unlike the various types of central station services at
issue in Grinnell Corp., however, the shopper-related and
merchant-related services that American Express provides
are not “producer substitutes” any more than they are traditional
substitutes. For producers as for consumers, the
services are instead complements. Credit-card companies
must sell them together for them to be useful. As a result,
the credit-card companies cannot respond to, say, merchantrelated
price increases by shifting production away from
shopper-related services to merchant-related services. The
relevant “commercial realities” in this case are thus com570
OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
pletely different from those in Grinnell Corp. (The majority
also cites Brown Shoe Co. v. United States, 370 U. S. 294,
336–337 (1962), for this point, but the “commercial realities”
considered in that case were that “shoe stores in the outskirts
of cities compete effectively with stores in central
downtown areas,” and thus are part of the same market.
Id., at 338–339. Here, merchant-related services do not, as
I have said, compete with shopper-related services, and so
Brown Shoe Co. does not support the majority's position.)
Thus, our precedent provides no support for the majority's
special approach to defning markets involving “two-sided
transaction platforms.”
3
What about the academic articles the majority cites? The
frst thing to note is that the majority defnes “two-sided
transaction platforms” much more broadly than the economists
do. As the economists who coined the term explain,
if a “two-sided market” meant simply that a frm connects
two different groups of customers via a platform, then
“pretty much any market would be two-sided, since buyers
and sellers need to be brought together for markets to exist
and gains from trade to be realized.” Rochet & Tirole, Two-
Sided Markets: A Progress Report, 37 RAND J. Econ. 645,
646 (2006). The defning feature of a “two-sided market,”
according to these economists, is that “the platform can affect
the volume of transactions by charging more to one side
of the market and reducing the price paid by the other side
by an equal amount.” Id., at 664–665; accord, Filistrucchi
299. That requirement appears nowhere in the majority's
defnition. By failing to limit its defnition to platforms that
economists would recognize as “two sided” in the relevant
respect, the majority carves out a much broader exception
to the ordinary antitrust rules than the academic articles it
relies on could possibly support.
Even as limited to the narrower defnition that economists
use, however, the academic articles the majority cites do not
Cite as: 585 U. S. 529 (2018) 571
Breyer, J., dissenting
support the majority's fat rule that frms operating “twosided
transaction platforms” should always be treated as
part of a single market for all antitrust purposes. Ante,
at 545–547. Rather, the academics explain that for marketdefnition
purposes, “[i]n some cases, the fact that a business
can be thought of as two-sided may be irrelevant,” including
because “nothing in the analysis of the practices [at issue]
really hinges on the linkages between the demands of participating
groups.” Evans & Schmalensee, Markets With Two-
Sided Platforms, 1 Issues in Competition L. & Pol'y 667, 689
(2008). “In other cases, the fact that a business is two-sided
will prove important both by identifying the real dimensions
of competition and focusing on sources of constraints.” Ibid.
That fexible approach, however, is precisely the one the District
Court followed in this case, by considering the effects
of “[t]he two-sided nature of the . . . card industry” throughout
its analysis. 88 F. Supp. 3d, at 155.
Neither the majority nor the academic articles it cites offer
any explanation for why the features of a “two-sided transaction
platform” justify always treating it as a single antitrust
market, rather than accounting for its economic features in
other ways, as the District Court did. The article that the
majority repeatedly quotes as saying that “ `[i]n two-sided
transaction markets, only one market should be defned,' ”
ante, at 546 (quoting Filistrucchi 302), justifes that conclusion
only for purposes of assessing the effects of a merger.
In such a case, the article explains, “[e]veryone would probably
agree that a payment card company such as American
Express is either in the relevant market on both sides or on
neither side . . . . The analysis of a merger between two
payment card platforms should thus consider . . . both sides
of the market.” Id., at 301. In a merger case this makes
sense, but it is also meaningless, because, whether there is
one market or two, a reviewing court will consider both sides,
because it must examine the effects of the merger in each
affected market and submarket. See Brown Shoe Co., 370
572 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
U. S., at 325. As for a nonmerger case, the article offers
only United States v. Grinnell as a justifcation, see Filistrucchi
303, and as I have already explained, supra, at 569–
570, Grinnell does not support this proposition.
E
Put all of those substantial problems with the majority's
reasoning aside, though. Even if the majority were right to
say that market defnition was relevant, and even if the majority
were right to further say that the District Court
should have defned the market in this case to include
shopper-related services as well as merchant-related services,
that still would not justify the majority in affrming the
Court of Appeals. That is because, as the majority is forced
to admit, the plaintiffs made the factual showing that the
majority thinks is required. See ante, at 549.
Recall why it is that the majority says that market defnition
matters: because if the relevant market includes both
merchant-related services and card-related services, then
the plaintiffs had the burden to show that as a result of
the nondiscrimination provisions, “the price of credit-card
transactions”—considering both fees charged to merchants
and rewards paid to cardholders—“was higher than the
price one would expect to fnd in a competitive market.”
Ante, at 547–548. This mirrors the Court of Appeals' holding
that the Government had to show that the “nondiscrimination
provisions” had “made all [American Express] customers
on both sides of the platform—i. e., both merchants
and cardholders—worse off overall.” 838 F. 3d, at 205.
The problem with this reasoning, aside from it being
wrong, is that the majority admits that the plaintiffs did
show this: They “offer[ed] evidence” that American Express
“increased the percentage of the purchase price that it
charges merchants . . . and that this increase was not entirely
spent on cardholder rewards. ” Ante, 549 (citing 88
F. Supp. 3d, at 195–197, 215). Indeed, the plaintiffs did not
Cite as: 585 U. S. 529 (2018) 573
Breyer, J., dissenting
merely “offer evidence” of this—they persuaded the District
Court, which made an unchallenged factual fnding that the
merchant price increases that resulted from the nondiscrimination
provisions “were not wholly offset by additional rewards
expenditures or otherwise passed through to cardholders,
and resulted in a higher net price.” Id., at 215
(emphasis added).
In the face of this problem, the majority retreats to saying
that even net price increases do not matter after all, absent
a showing of lower output, because if output is increasing,
“ `rising prices are equally consistent with growing product
demand.' ” Ante, at 549 (quoting Brooke Group Ltd. v.
Brown & Williamson Tobacco Corp., 509 U. S. 209, 237
(1993)). This argument, unlike the price argument, has
nothing to do with the credit-card market being a “two-sided
transaction platform,” so if this is the basis for the majority's
holding, then nearly all of the opinion is dicta. The argument
is also wrong. It is true as an economic matter that a
frm exercises market power by restricting output in order
to raise prices. But the relevant restriction of output is as
compared with a hypothetical world in which the restraint
was not present and prices were lower. The fact that creditcard
use in general has grown over the last decade, as the
majority says, see ante, at 549–550, says nothing about
whether such use would have grown more or less without
the nondiscrimination provisions. And because the relevant
question is a comparison between reality and a hypothetical
state of affairs, to require actual proof of reduced output is
often to require the impossible—tantamount to saying that
the Sherman Act does not apply at all.
In any event, there are features of the credit-card market
that may tend to limit the usual relationship between price
and output. In particular, merchants generally spread the
costs of credit-card acceptance across all their customers
(whatever payment method they may use), while the benefts
of card use go only to the cardholders. See, e. g., 88
574 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
F. Supp. 3d, at 216; Brief for John M. Connor et al. as Amici
Curiae 34–35. Thus, higher credit-card merchant fees may
have only a limited effect on credit-card transaction volume,
even as they disrupt the marketplace by extracting anticompetitive
profts.
IV
A
For the reasons I have stated, the Second Circuit was
wrong to lump together the two different services sold, at
step 1. But I recognize that the Court of Appeals has not
yet considered whether the relationship between the two
services might make a difference at steps 2 and 3. That
is to say, American Express might wish to argue that the
nondiscrimination provisions, while anticompetitive in respect
to merchant-related services, nonetheless have an
adequate offsetting procompetitive beneft in respect to its
shopper-related services. I believe that American Express
should have an opportunity to ask the Court of Appeals to
consider that matter.
American Express might face an uphill battle. A Sherman
Act § 1 defendant can rarely, if ever, show that a procompetitive
beneft in the market for one product offsets an
anticompetitive harm in the market for another. In United
States v. Topco Associates, Inc., 405 U. S. 596, 611 (1972), this
Court wrote:
“If a decision is to be made to sacrifce competition in
one portion of the economy for greater competition in
another portion, this . . . is a decision that must be made
by Congress and not by private forces or by the courts.
Private forces are too keenly aware of their own interests
in making such decisions and courts are ill-equipped
and ill-situated for such decisionmaking.”
American Express, pointing to vertical price-fxing cases like
our decision in Leegin, argues that comparing competitionCite
as: 585 U. S. 529 (2018) 575
Breyer, J., dissenting
related pros and cons is more common than I have just suggested.
See 551 U. S., at 889–892. But Leegin held only
that vertical price fxing is subject to the “rule of reason”
instead of being per se unlawful; the “rule of reason” still
applies to vertical agreements just as it applies to horizontal
agreements. See id., at 898–899.
Moreover, the procompetitive justifcations for vertical
price-fxing agreements are not apparently applicable to the
distinct types of restraints at issue in this case. A vertically
imposed price-fxing agreement typically involves a manufacturer
controlling the terms of sale for its own product. A
television manufacturer, for example, will insist that its
dealers not cut prices for the manufacturer's own televisions
below a particular level. Why might a manufacturer
want its dealers to refrain from price competition in the manufacturer's
own products? Perhaps because, for example,
the manufacturer wants to encourage the dealers to develop
the market for the manufacturer's brand, thereby increasing
interbrand competition for the same ultimate product,
namely, a television. This type of reasoning does not appear
to apply to American Express' nondiscrimination provisions,
which seek to control the terms on which merchants
accept other brands' cards, not merely American Express'
own.
Regardless, I would not now hold that an agreement such
as the one before us can never be justifed by procompetitive
benefts of some kind. But the Court of Appeals would
properly consider procompetitive justifcations not at step 1,
but at steps 2 and 3 of the “rule of reason” inquiry. American
Express would need to show just how this particular
anticompetitive merchant-related agreement has procompetitive
benefts in the shopper-related market. In doing so,
American Express would need to overcome the District
Court's factual fndings that the agreement had no such effects.
See 88 F. Supp. 3d, at 224–238.
576 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
B
The majority charts a different path. Notwithstanding its
purported acceptance of the three-step, burden-shifting
framework I have described, ante, at 541–542, the majority
addresses American Express' procompetitive justifcations
now, at step 1 of the analysis, see ante, at 549–552. And in
doing so, the majority inexplicably ignores the District
Court's factual fndings on the subject.
The majority reasons that the challenged nondiscrimination
provisions “stem negative externalities in the creditcard
market and promote interbrand competition.” Ante, at
551. The “negative externality” the majority has in mind
is this: If one merchant persuades a shopper not to use his
American Express card at that merchant's store, that shopper
becomes less likely to use his American Express card at
other merchants' stores. Ibid. The majority worries that
this “endangers the viability of the entire [American Express]
network,” ibid., but if so that is simply a consequence
of American Express' merchant fees being higher than a
competitive market will support. “The antitrust laws were
enacted for `the protection of competition, not competitors.'
” Atlantic Richfeld Co. v. USA Petroleum Co., 495
U. S. 328, 338 (1990). If American Express' merchant fees
are so high that merchants successfully induce their customers
to use other cards, American Express can remedy that
problem by lowering those fees or by spending more on cardholder
rewards so that cardholders decline such requests.
What it may not do is demand contractual protection from
price competition.
In any event, the majority ignores the fact that the District
Court, in addition to saying what I have just said, also
rejected this argument on independent factual grounds. It
explained that American Express “presented no expert testimony,
fnancial analysis, or other direct evidence establishing
that without its [nondiscrimination provisions] it will, in fact,
be unable to adapt its business to a more competitive marCite
as: 585 U. S. 529 (2018) 577
Breyer, J., dissenting
ket.” 88 F. Supp. 3d, at 231. It further explained that the
testimony that was provided on the topic “was notably inconsistent,”
with some of American Express' witnesses saying
only that invalidation of the provisions “would require American
Express to adapt its current business model.” Ibid.
After an extensive discussion of the record, the District
Court found that “American Express possesses the fexibility
and expertise necessary to adapt its business model to suit
a market in which it is required to compete on both the cardholder
and merchant sides of the [credit-card] platform.”
Id., at 231–232. The majority evidently rejects these factual
fndings, even though no one has challenged them as clearly
erroneous.
Similarly, the majority refers to the nondiscrimination provisions
as preventing “free riding” on American Express'
“investments in rewards” for cardholders. Ante, at 551; see
also ante, at 539 (describing steering in terms suggestive
of free riding). But as the District Court explained,
“[p]lainly . . . investments tied to card use (such as Membership
Rewards points, purchase protection, and the like) are
not subject to free-riding, since the network does not incur
any cost if the cardholder is successfully steered away from
using his or her American Express card.” 88 F. Supp. 3d,
at 237. This, I should think, is an unassailable conclusion:
American Express pays rewards to cardholders only for
transactions in which cardholders use their American Express
cards, so if a steering effort succeeds, no rewards are
paid. As for concerns about free riding on American Express'
fxed expenses, including its investments in its brand,
the District Court acknowledged that free riding was in theory
possible, but explained that American Express “ma[de]
no effort to identify the fxed expenses to which its experts
referred or to explain how they are subject to free riding.”
Ibid.; see also id., at 238 (American Express' own data
showed “that the network's ability to confer a credentialing
beneft trails that of its competitors, casting doubt on
578 OHIO v. AMERICAN EXPRESS CO.
Breyer, J., dissenting
whether there is in fact any particular beneft associated
with accepting [American Express] that is subject to free
riding”). The majority does not even acknowledge, much
less reject, these factual fndings, despite coming to the contrary
conclusion.
Finally, the majority reasons that the nondiscrimination
provisions “do not prevent Visa, MasterCard, or Discover
from competing against [American Express] by offering
lower merchant fees or promoting their broader merchant
acceptance.” Ante, at 551. But again, the District Court's
factual fndings were to the contrary. As I laid out above,
the District Court found that the nondiscrimination
provisions in fact did prevent Discover from pursuing a lowmerchant-
fee business model, by “den[ying] merchants the
ability to express a preference for Discover or to employ any
other tool by which they might steer share to Discover's
lower-priced network.” 88 F. Supp. 3d, at 214; see supra, at
558. The majority's statements that the nondiscrimination
provisions are procompetitive are directly contradicted by
this and other factual fndings.
* * *
For the reasons I have explained, the majority's decision
in this case is contrary to basic principles of antitrust law,
and it ignores and contradicts the District Court's detailed
factual fndings, which were based on an extensive trial record.
I respectfully dissent.
OCTOBER TERM, 2017 579
Syllabus
ABBOTT, GOVERNOR OF TEXAS, et al. v. PEREZ
et al.
appeal from the united states district court for the
western district of texas
No. 17–586. Argued April 24, 2018—Decided June 25, 2018*
In 2011, the Texas Legislature adopted a new congressional districting
plan and new districting maps for the two houses of the State Legislature
to account for population growth revealed in the 2010 census. To
do so, Texas had to comply with a complicated legal regime. The Equal
Protection Clause of the Fourteenth Amendment forbids “racial gerrymandering,”
that is, intentionally assigning citizens to a district on the
basis of race without suffcient justifcation. Shaw v. Reno, 509 U. S.
630, 641. But other legal requirements tend to require that state legislatures
consider race in drawing districts. Like all States, Texas is
subject to § 2 of the Voting Rights Act of 1965 (VRA), which is violated
when a state districting plan provides “less opportunity” for racial minorities
“to elect representatives of their choice,” League of United
Latin American Citizens v. Perry, 548 U. S. 399, 425. And at the time,
Texas was also subject to § 5, which barred it from making any districting
changes unless it could prove that they did not result in retrogression
with respect to the ability of racial minorities to elect the candidates
of their choice, Alabama Legislative Black Caucus v. Alabama,
575 U. S. 254, 259. In an effort to harmonize these conficting demands,
the Court has assumed that compliance with the VRA is a compelling
State interest for Fourteenth Amendment purposes, see, e. g., Bethune-
Hill v. Virginia State Bd. of Elections, 580 U. S. 178, 193; and a State's
consideration of race in making a districting decision is narrowly tailored
if the State has “good reasons” for believing that its decision is
necessary in order to comply with the VRA, Cooper v. Harris, 581
U. S. 285, 293.
The Texas Legislature's 2011 plans were immediately tied up in litigation
and never used. The case was assigned to a three-judge court
(Texas court). Texas also submitted the plans for preclearance to the
District Court for the District of Columbia (D. C. court). The Texas
court drew up interim plans for the State's rapidly approaching primaries,
giving no deference to the Legislature's plans. Texas chal-
*Together with No. 17–626, Abbott, Governor of Texas, et al. v. Perez
et al., also on appeal from the same court.
580 ABBOTT v. PEREZ
Syllabus
lenged the court-ordered plans in this Court, which reversed and remanded
with instructions for the Texas court to start with the Texas
Legislature's 2011 plans but to make adjustments as required by the Constitution
and the VRA. The Texas court then adopted new interim plans.
After the D. C. court denied preclearance of the 2011 plans, Texas used
the Texas court's interim plans for the 2012 elections. In 2013, the Legislature
repealed the 2011 plans and enacted the Texas court's plans
(with minor modifcations). After Shelby County v. Holder, 570 U. S.
529, was decided, Texas, no longer covered by § 5, obtained a vacatur of
the D. C. court's preclearance order. But the Texas court did not dismiss
the case against the 2011 plans as moot. Instead, it allowed the
plaintiffs to amend their complaint to challenge the 2013 plans and held
that their challenges to the 2011 plans were live. Texas conducted its
2014 and 2016 elections under the 2013 plans. In 2017, the Texas court
found defects in several of the districts in the 2011 federal congressional
and State House plans (the State Senate plan is not at issue here). Subsequently,
it also invalidated multiple Congressional (CD) and House
(HD) Districts in the 2013 plans, holding that the Legislature failed to
cure the “taint” of discriminatory intent allegedly harbored by the 2011
Legislature. And the court relied on that fnding to invalidate several
challenged 2013 districts. The court also held that three districts—
CD27, HD32, and HD34—were invalid under § 2 of the VRA because
they had the effect of depriving Latinos of the equal opportunity to
elect their candidates of choice. And it found that HD90 was a racial
gerrymander based on changes made by the 2013 Legislature. It gave
the state attorney general three days to tell the court whether the Legislature
would remedy the violations; and if the Legislature did not intend
to adopt new plans, the court would hold remedial hearings.
Held:
1. This Court has jurisdiction to review the orders at issue.
Pp. 594–603.
(a) The Texas court's orders fall within 28 U. S. C. § 1253, which
gives the Court jurisdiction to hear an appeal from an order of a threejudge
district court “granting or denying . . . an interlocutory or permanent
injunction.” The Texas court did not call its orders “injunctions,”
but where an order has the “practical effect” of granting or denying an
injunction, it should be treated as such for purposes of appellate jurisdiction.
Carson v. American Brands, Inc., 450 U. S. 79, 83. Pp. 594–598.
(b) The text of the orders and the context in which they were issued
make clear that they qualify as interlocutory injunctions under
§ 1253. The orders were unequivocal that the current legislative plans
“violate § 2 and the Fourteenth Amendment” and that these violations
“must be remedied.” And the short timeframe the attorney general
Cite as: 585 U. S. 579 (2018) 581
Syllabus
was given to act is strong evidence that the court did not intend to allow
the elections to go ahead under the plans it had just condemned. The
unmistakable import of these actions is that the court intended to have
new plans ready for use in this year's elections. Texas also had reason
to fear that if it tried to conduct elections under those plans, the court
would infer an evil motive and perhaps subject the State to the strictures
of preclearance under § 3(c) of the VRA. These cases differ from
Gunn v. University Comm. to End War in Viet Nam, 399 U. S. 383,
where the order did not have the same practical effect as an injunction.
Nor does it matter that the remedy is not yet known. The issue here
is whether this year's elections can be held under the plans enacted by
the Legislature, not whether any particular remedies should ultimately
be ordered if it is determined that the current plans are fawed. Section
1253 must be strictly but sensibly construed, and here the District
Court's orders, for all intents and purposes, constituted injunctions.
Thus, § 1253 provides jurisdiction. Pp. 598–603.
2. The Texas court erred in requiring the State to show that the 2013
Legislature purged the “taint” that the court attributed to the defunct
and never-used plans enacted by a prior Legislature in 2011.
Pp. 603–614.
(a) Whenever a challenger claims that a state law was enacted with
discriminatory intent, the burden of proof lies with the challenger, not
the State. Reno v. Bossier Parish School Bd., 520 U. S. 471, 481. In
redistricting cases, the “good faith of [the] state legislature must be
presumed.” Miller v. Johnson, 515 U. S. 900, 915. The allocation of
the burden of proof and the presumption of legislative good faith are
not changed by a fnding of past discrimination, which is but “one evidentiary
source” relevant to the question of intent. Arlington Heights
v. Metropolitan Housing Development Corp., 429 U. S. 252, 267. Here,
the 2011 plans were repealed, and not reenacted, by the 2013 Legislature.
Nor did it use criteria that arguably carried forward the effects
of the 2011 Legislature's discriminatory intent. Instead, it enacted,
with only small changes, the Texas court plans developed pursuant to
this Court's instructions. The Texas court contravened these basic burden
of proof principles, referring, e. g., to the need to “cure” the earlier
Legislature's “taint” and concluding that the Legislature had engaged
in no deliberative process to do so. This fundamentally fawed approach
must be reversed. Pp. 603–607.
(b) Both the 2011 Legislature's intent and the court's interim plans
are relevant to the extent that they give rise to—or tend to refute—
inferences about the 2013 Legislature's intent, but they must be
weighed together with other relevant direct and circumstantial evidence
of the Legislature's intent. But when this evidence is taken into ac582
ABBOTT v. PEREZ
Syllabus
count, the evidence in the record is plainly insuffcient to prove that the
2013 Legislature acted in bad faith and engaged in intentional discrimination.
Pp. 607–614.
3. Once the Texas court's intent fnding is reversed, there remain only
four districts that were invalidated on alternative grounds. The Texas
court's holding as to the three districts in which it relied on § 2's “effects”
test are reversed, but its holding that HD90 is a racial gerrymander
is affrmed. Pp. 614–622.
(a) To make out a § 2 “effects” claim, a plaintiff must establish the
three “Gingles factors”: (1) a geographically compact minority population
suffcient to constitute a majority in a single-member district, (2)
political cohesion among the members of the minority group, and (3)
bloc voting by the majority to defeat the minority's preferred candidate.
Thornburg v. Gingles, 478 U. S. 30, 48–51. A plaintiff who makes that
showing must then prove that, under the totality of the circumstances,
the district lines dilute the votes of the members of the minority group.
Pp. 614–619.
(1) The Texas court held that CD27 violates § 2 because it has
the effect of diluting the votes of Nueces County Latino voters, who,
the court concluded, should have been included in a Latino opportunity
district rather than CD27, which is not such a district. Plaintiffs, however,
could not show that an additional Latino opportunity district could
be created in that part of Texas. Pp. 614–616.
(2) The Texas court similarly erred in holding that HD32 and
HD34, which make up the entirety of Nueces County, violate § 2. The
2013 plan created two districts that lie wholly within the county: HD34
is a Latino opportunity district, but HD32 is not. The court's fndings
show that these two districts do not violate § 2, and it is hard to see how
the ultimate Gingles vote dilution standard could be met if the alternative
plan would not enhance the ability of minority voters to elect the
candidates of their choice. Pp. 616–619.
(b) HD90 is an impermissible racial gerrymander. HD90 was not
copied from the Texas court's interim plans. Instead, the 2013 Legislature
substantially modifed that district. In 2011, the Legislature, responding
to pressure from counsel to one of the plaintiff groups, increased
the district's Latino population in an effort to make it a Latino
opportunity district. It also moved the city of Como, which is predominantly
African-American, out of the district. When Como residents and
their Texas House representative objected, the Legislature moved
Como back. But that decreased the Latino population, so the Legislature
moved more Latinos into the district. Texas argues that its use
of race as the predominant factor in HD90's design was permissible
because it had “good reasons to believe” that this was necessary to satCite
as: 585 U. S. 579 (2018) 583
Syllabus
isfy § 2, Bethune-Hill, 580 U. S., at 194. But it is the State's burden to
prove narrow tailoring, and Texas did not do so on the record here.
Pp. 620–622.
No. 17–586, 274 F. Supp. 3d 624, reversed; No. 17–626, 267 F. Supp. 3d 750,
reversed in part and affrmed in part; and cases remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Thomas, and Gorsuch, JJ., joined. Thomas, J., fled a
concurring opinion, in which Gorsuch, J., joined, post, p. 622. Sotomayor,
J., fled a dissenting opinion, in which Ginsburg, Breyer, and
Kagan, JJ., joined, post, p. 622.
Scott A. Keller, Solicitor General of Texas, argued the
cause for appellants in both cases. With him on the briefs
were Ken Paxton, Attorney General of Texas, Jeffrey C. Mateer,
First Assistant Attorney General, Matthew H. Frederick,
Deputy Solicitor General, Andrew B. Davis, Assistant
Solicitor General, Paul D. Clement, and Erin E. Murphy.
Deputy Solicitor General Kneedler argued the cause for
the United States as amicus curiae urging reversal. With
him on the briefs were Solicitor General Francisco, Acting
Assistant Attorney General Gore, Deputy Solicitor General
Wall, Deputy Assistant Attorney General Friel, Jeffrey E.
Sandberg, and Bonnie I. Robin-Vergeer.
Renea Hicks argued the cause for appellees in No. 17–586.
With him on the brief were Marc E. Elias, Bruce V. Spiva,
Abha Khanna, José Garza, David Richards, Allison J.
Riggs, Robert Notzon, Victor L. Goode, Luis R. Vera, Jr.,
Gary L. Bledsoe, J. Gerald Herbert, Mark P. Gaber, Jessica
Ring Amunson, Gerald H. Goldstein, Donald H. Flanary
III, Jesse Gaines, and Rolando L. Rios. Ms. Riggs argued
the cause for appellees in No. 17–626. With her on the brief
were Pamela S. Karlan, Jeffrey L. Fisher, David T. Goldberg,
Messrs. Richards, Garza, Notzon, Goode, Bledsoe, and
Vera, and Nina Perales.†
†A brief of amici curiae urging reversal was fled for the State of Louisiana
et al. by Jeff Landry, Attorney General of Louisiana, and Elizabeth
B. Murrill, Solicitor General, and by the Attorneys General for their re584
ABBOTT v. PEREZ
Opinion of the Court
Justice Alito delivered the opinion of the Court.
Before us for review are orders of a three-judge court in
the Western District of Texas effectively directing the State
not to conduct this year's elections using districting plans
that the court itself adopted some years earlier. The court
developed those plans for use in the 2012 elections pursuant
to our directions in Perry v. Perez, 565 U. S. 388 (2012) (per
curiam). We instructed the three-judge court to start with
the plans adopted by the Texas Legislature (or Legislature)
in 2011 but to make adjustments as required by the Constitution
and the Voting Rights Act. Id., at 392–396. After
those plans were used in 2012, the Texas Legislature enacted
them (with only minor modifcations) in 2013, and the plans
were used again in both 2014 and 2016.
Last year, however, the three-judge court reversed its
prior analysis and held that some of the districts in those
plans are unlawful. After reviewing the repealed 2011
plans, which had never been used, the court found that they
were tainted by discriminatory intent and that the 2013 Legislature
had not “cured” that “taint.”
We now hold that the three-judge court committed a fundamental
legal error. It was the challengers' burden to
show that the 2013 Legislature acted with discriminatory intent
when it enacted plans that the court itself had produced.
The 2013 Legislature was not obligated to show that it had
“cured” the unlawful intent that the court attributed to the
spective States as follows: Steven T. Marshall of Alabama, Joshua D. Hawley
of Missouri, Michael DeWine of Ohio, Alan Wilson of South Carolina,
and Brad D. Schimel of Wisconsin.
Briefs of amici curiae urging affrmance were fled for the Campaign
Legal Center et al. by Kristen Clarke, Ezra D. Rosenberg, Jon M. Greenbaum,
Danielle M. Lang, Adav Noti, Sherrilyn A. Ifll, Janai S. Nelson,
Samuel Spital, and Leah C. Aden; and for Common Cause et al. by Eugene
R. Fidell, Charles A. Rothfeld, Michael B. Kimberly, Andrew J. Pincus,
and Paul W. Hughes.
Cite as: 585 U. S. 579 (2018) 585
Opinion of the Court
2011 Legislature. Thus, the essential pillar of the threejudge
court's reasoning was critically fawed.
When the congressional and state legislative districts are
reviewed under the proper legal standards, all but one of
them, we conclude, are lawful.
I
A
The 2010 decennial census revealed that the population of
Texas had grown by more than 20% and the State was therefore
apportioned four additional seats in the United States
House of Representatives. C. J. S. 369a.1 To accommodate
this new allocation and the population changes shown by the
census, the Legislature adopted a new congressional districting
plan, as well as new districting maps for the two houses
of the State Legislature.
Redistricting is never easy, and the task was especially
complicated in Texas in 2011. Not only was the Legislature
required to draw districts that were substantially equal in
population, see Perry, supra, at 391–392; Reynolds v. Sims,
377 U. S. 533 (1964); Wesberry v. Sanders, 376 U. S. 1 (1964),
and to comply with special state-law districting rules,2 but
federal law imposed complex and delicately balanced requirements
regarding the consideration of race.
Then, as now, federal law restricted the use of race in making
districting decisions. The Equal Protection Clause forbids
“racial gerrymandering,” that is, intentionally assigning
citizens to a district on the basis of race without suffcient
1 There are several appendixes in these cases. We use “App.” to refer
to the joint appendix fled at the merits stage. We use “C. J. S.” and
“H. J. S.” to refer to the appendixes attached to Texas's jurisdictional
statements in No. 17–586 and No. 17–626, respectively. We use “C. J. S.
Findings” and “H. J. S. Findings” to refer to appellees' supplemental appendixes
in No. 17–586 and No. 17–626.
2 See, e. g., Tex. Const., Art. III, § 25 (Senate), § 26 (House).
586 ABBOTT v. PEREZ
Opinion of the Court
justifcation. Shaw v. Reno, 509 U. S. 630, 641 (1993). It
also prohibits intentional “vote dilution”—“invidiously . . .
minimiz[ing] or cancel[ing] out the voting potential of racial
or ethnic minorities.” Mobile v. Bolden, 446 U. S. 55, 66–67
(1980) (plurality opinion).
While the Equal Protection Clause imposes these important
restrictions, its application in the feld of districting is
complicated. For one thing, because a voter's race sometimes
correlates closely with political party preference, see
Cooper v. Harris, 581 U. S. 285, 308 (2017); Easley v. Cromartie,
532 U. S. 234, 243 (2001), it may be very diffcult
for a court to determine whether a districting decision
was based on race or party preference. Here, the threejudge
court found that the two factors were virtually
indistinguishable.3
At the same time that the Equal Protection Clause restricts
the consideration of race in the districting process,
compliance with the Voting Rights Act of 1965 (VRA), 79
Stat. 437, as amended, 52 U. S. C. § 10301 et seq., pulls in the
opposite direction: It often insists that districts be created
precisely because of race. Two provisions of the VRA exert
such demands, and in 2011, Texas was subject to both. At
that time, Texas was covered by § 5 of the VRA4 and was
thus barred from making any districting changes unless it
could prove that they did not result in “retrogression” with
respect to the ability of racial minorities to elect the candidates
of their choice. Alabama Legislative Black Caucus v.
3 The court found: “[I]t is diffcult to differentiate an intent to affect
Democrats from an intent to affect minority voters. Making minorities
worse off will likely make Democrats worse off, and vice versa.” C. J. S.
Findings 467a (citation omitted). “This correlation is so strong that [an
expert] assessed whether districts were minority opportunity districts by
looking at Democratic results/wins (noting that in Texas, minority candidates
of choice means Democrats).” Ibid.
4 See Shelby County v. Holder, 570 U. S. 529 (2013).
Cite as: 585 U. S. 579 (2018) 587
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Alabama, 575 U. S. 254, 259 (2015). That showing obviously
demanded consideration of race.
On top of this, Texas was (and still is) required to comply
with § 2 of the VRA. A State violates § 2 if its districting
plan provides “ `less opportunity' ” for racial minorities “ `to
elect representatives of their choice.' ” League of United
Latin American Citizens v. Perry, 548 U. S. 399, 425 (2006)
(LULAC). In a series of cases tracing back to Thornburg
v. Gingles, 478 U. S. 30 (1986), we have interpreted this
standard to mean that, under certain circumstances, States
must draw “opportunity” districts in which minority groups
form “effective majorit[ies],” LULAC, supra, at 426.
Since the Equal Protection Clause restricts consideration
of race and the VRA demands consideration of race, a legislature
attempting to produce a lawful districting plan is vulnerable
to “ `competing hazards of liability.' ” Bush v. Vera,
517 U. S. 952, 977 (1996) (plurality opinion). In an effort to
harmonize these conficting demands, we have assumed that
compliance with the VRA may justify the consideration of
race in a way that would not otherwise be allowed. In technical
terms, we have assumed that complying with the VRA
is a compelling state interest, see, e. g., Bethune-Hill v. Virginia
State Bd. of Elections, 580 U. S. 178, 193 (2017); Shaw
v. Hunt, 517 U. S. 899, 915 (1996), and that a State's consideration
of race in making a districting decision is narrowly tailored
and thus satisfes strict scrutiny if the State has “ `good
reasons' ” for believing that its decision is necessary in order
to comply with the VRA. Cooper, supra, at 293.
B
Facing this legal obstacle course, the Texas Legislature
in 2011 adopted new districting plans, but those plans were
immediately tied up in litigation and were never used. Several
plaintiff groups quickly fled challenges in the District
Court for the Western District of Texas, arguing that some
588 ABBOTT v. PEREZ
Opinion of the Court
of the districts in the new plans were racial gerrymanders,
some were based on intentional vote dilution, and some had
the effect of depriving minorities of the equal opportunity to
elect the candidates of their choice. This case was assigned
to a three-judge court, as required by 28 U. S. C. § 2284(a).
(We will call this court “the Texas court” or simply “the
District Court.”)
The situation was further complicated by the requirement
that Texas obtain preclearance of its new plans. To do this,
Texas fled for a declaratory judgment in the District Court
for the District of Columbia. See Texas v. United States,
887 F. Supp. 2d 133 (2012). (We will call this court “the
D. C. court.”) By early 2012, the D. C. court had not yet
issued a decision, and Texas needed usable plans for its rapidly
approaching primaries. Accordingly, the Texas court
drew up interim plans for that purpose. Perez v. Perry, 835
F. Supp. 2d 209 (2011). In creating those plans, the majority
of the Texas court thought that it was not “required to give
any deference to the Legislature's enacted plan.” Id., at
213. Instead, it based its plans on what it called “neutral
principles that advance the interest of the collective public
good.” Id., at 212.5
Texas challenged those court-ordered plans in this Court,
and we reversed. Perry v. Perez, 565 U. S. 388 (2012) (per
curiam). Noting that “[r]edistricting is `primarily the duty
and responsibility of the State,' ” we held that the Texas
court should have respected the legislative judgments embodied
in the 2011 plans to the extent allowed by the Constitution
and the VRA. Id., at 392–399.
We remanded the case with very specifc instructions.
The Texas court was told to start with the plans adopted by
the Legislature but to modify those plans as needed so as
“not to incorporate . . . any legal defects.” Id., at 394. With
5 Judge Smith dissented, arguing that the majority had produced a
“runaway plan” that “award[ed] judgment on the pleadings in favor of
one side—a slam-dunk victory for the plaintiffs.” Perez v. Perry, 835
F. Supp. 2d 209, 218 (WD Tex. 2011).
Cite as: 585 U. S. 579 (2018) 589
Opinion of the Court
respect to claims under the Constitution or § 2 of the VRA,
the District Court was told to change a district if the plaintiffs
were likely to succeed on the merits of their challenge.
Ibid. And with respect to § 5 claims, the court was instructed
to make whatever changes were needed to obviate
any legal claim that was “not insubstantial.” 6 Id., at 395.
Thus, our instructions, in an abundance of caution, demanded
changes in the challenged 2011 plans without proof that
those changes were actually required by either the Constitution
or the VRA.
On remand, the Texas court ordered additional briefng
and heard two more days of argument. App. 29a, 35a–50a;
Order in Civ. No. 11–cv–00360, Doc. No. 616. It issued two
opinions, totaling more than 70 pages, and analyzed disputed
districts in detail. C. J. S. 367a–423a; H. J. S. 300a–315a.
While stressing the preliminary nature of its determinations,
see C. J. S. 368a; H. J. S. 314a–315a, the court found that
some districts required change and that others were lawful,
C. J. S. 367a–423a; H. J. S. 300a–315a. The court then
adopted plans for the State's congressional districts and for
both houses of the State Legislature. (The plan for the
State Senate is not at issue.)
Both the congressional plan and the plan for the Texas
House departed signifcantly from the State's 2011 plans.
At least 8 of the 36 congressional districts were markedly
altered, and 21 districts in the plan for the Texas House were
“substantially” changed. Id., at 314a; C. J. S. 397a–408a.
In August 2012, the D. C. court denied preclearance of the
plans adopted by the Legislature in 2011, see Texas v. United
States, supra, so the State conducted the 2012 elections
under the interim plans devised by the Texas court. At the
same time, Texas fled an appeal in this Court contesting the
6 The Texas court was given more leeway to make changes to districts
challenged under § 5 because it would have been inappropriate for that
court to address the “merits of § 5 challenges,” a task committed by statute
to the District Court for the District of Columbia. Perez, 565 U. S.,
at 394.
590 ABBOTT v. PEREZ
Opinion of the Court
decision of the D. C. court,7 but that appeal ultimately died
for two reasons.
First, the 2011 plans were repealed. The Texas attorney
general urged the Legislature to pass new redistricting
plans, C. J. S. 429a, and in his view, the “best way to remedy
the violations found by the D. C. court” was to “adopt the
[Texas court's] interim plans as the State's permanent redistricting
maps.” Id., at 432a. Doing so, he said, would “confrm
the legislature's intent” to adopt “a redistricting plan
that fully comports with the law.” Id., at 429a.
The Governor called a special session to do just that, and
the Legislature complied. One of the legislative sponsors,
Senator Seliger, explained that, although “ `the Texas Legislature
remains confdent that the legislatively-drawn maps
adopted in 2011 are fair and legal . . . , there remain several
outstanding legal questions regarding these maps that undermine
the stability and predictability of the electoral process
in Texas.' ” 274 F. Supp. 3d 624, 649, n. 40 (2017).
Counsel for one of the plaintiff groups, the Mexican American
Legal Defense and Education Fund (MALDEF), testifed
in favor of the plans. C. J. S. 436a–439a. The 2013 Legislature
then repealed the 2011 plans and enacted the Texas
court's interim plans with just a few minor changes. The
federal congressional plan was not altered at all, and only
small modifcations were made to the plan for the Texas
House. C. J. S. Findings 231a–232a.
On the day after the Legislature passed the new plans and
the day before the Governor signed them, this Court issued
its decision in Shelby County v. Holder, 570 U. S. 529 (2013),
which invalidated the coverage formula in § 4 of the VRA.
Now no longer subject to § 5, Texas obtained a vacatur of the
D. C. court's order on preclearance. 274 F. Supp. 3d, at 634–
635, and n. 11.
7 Notice of Appeal in Texas v. United States, Civ. No. 11–cv–1303 (D DC,
Aug. 31, 2012), Doc. 234.
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Opinion of the Court
With the never-effective 2011 plans now repealed and any
preclearance issues overcome by events, the State argued in
the Texas court that the plaintiffs' case against the 2011
plans was moot. In September 2013, the Texas court allowed
the plaintiffs to amend their complaints to challenge
the 2013 plans, but the court held that their challenges to
the 2011 plans were still alive, reasoning that the repeal of
the 2011 plans represented the “voluntary cessation” of allegedly
unconstitutional conduct.8
Texas conducted its 2014 and 2016 elections under the
plans that had been preliminarily approved by the Texas
court and subsequently adopted (with only minor changes)
by the Legislature in 2013. But in March and April 2017,
after multiple trials, the Texas court issued a pair of rulings
on the defunct 2011 plans. The court reaffrmed the conclusions
it had reached in 2012 about defects in the 2011 plans,
and it went further. Contrary to its earlier decision, it held
that Congressional District (CD) 35 is an impermissible racial
gerrymander and that CD27 violates § 2 of the VRA because
it has the effect of diluting the electoral opportunities
of Latino voters. C. J. S. 181a, 193a–194a. Previously, the
court had provided detailed reasons for rejecting the very
arguments that it now accepted. Id., at 409a–423a. Similarly,
the court held that multiple districts in the plan for
the Texas House were the result of intentional vote dilution.
These included districts in the counties of Nueces (House
District (HD) 32, HD34), Bell (HD54, HD55), and Dallas
(HD103, HD104, HD105). H. J. S. 275a–276a.9
8 We express no view on the correctness of this holding.
9 Judge Smith again dissented, on both mootness and the merits. On
mootness, Judge Smith explained that, “[s]ix years later, we are still enveloped
in litigation over plans that have never been used and will never be
implemented.” C. J. S. 349a. On the merits, Judge Smith argued that
the majority erroneously inferred a “complex, widespread conspiracy of
scheming and plotting, by various legislators and staff, carefully designed
to obscure the alleged race-based motive,” when the intent was in fact
partisan. H. J. S. 294a; C. J. S. 351a.
592 ABBOTT v. PEREZ
Opinion of the Court
In August 2017, having ruled on the repealed 2011 plans,
the Texas court fnally turned its attention to the plans then
in effect—i. e., the plans that had been developed by the
court, adopted by the Legislature in 2013, and used in both
the 2014 and 2016 elections. The court invalidated the districts
in those plans that correspond to districts in the 2011
plan that it had just held to be unlawful, i. e., CD27, CD35,
HD32, HD34, HD54, HD55, HD103, HD104, and HD105.
See 274 F. Supp. 3d 624 (No. 17–586) and 267 F. Supp. 3d 750
(2017) (No. 17–626).
In reaching these conclusions, the court pointed to the discriminatory
intent allegedly harbored by the 2011 Legislature,
and it attributed this same intent to the 2013 Legislature
because it had failed to “engage in a deliberative process
to ensure that the 2013 plans cured any taint from the 2011
plans.” 274 F. Supp. 3d, at 645–652; 267 F. Supp. 3d, at 757.
The court saw “no indication that the Legislature looked to
see whether any discriminatory taint remained in the plans.”
274 F. Supp. 3d, at 649. And it faulted the State because it
“did not accept [fndings of the D. C. court] and instead appealed
to the Supreme Court.” Ibid. Seeing no evidence
that the State had undergone “a change of heart,” the court
concluded that the Legislature's “decision to adopt the [District
Court's] plans” was a “litigation strategy designed to
insulate the 2011 or 2013 plans from further challenge, regardless
of their legal infrmities.” Id., at 649–650. Finally,
summarizing its analysis, the court reiterated that the
2011 Legislature's “discriminatory taint was not removed by
the [2013] Legislature's enactment of the Court's interim
plans, because the Legislature engaged in no deliberative
process to remove any such taint, and in fact intended any
such taint to be maintained but be safe from remedy.” Id.,
at 686.
The Texas court's decisions about CD35 and all but three
of the Texas House districts were based entirely on its fnding
that the 2013 Legislature had not purged its predecesCite
as: 585 U. S. 579 (2018) 593
Opinion of the Court
sor's discriminatory intent. However, the court also held
that three districts—CD27, HD32, and HD34—were invalid
under § 2 of the VRA because they had the effect of depriving
Latinos of the equal opportunity to elect their candidates
of choice. Id., at 682–686; 267 F. Supp. 3d, at 775–783. And
the court found independent proof that HD90 was a racial
gerrymander. Id., at 788–794.
The court held that violations in all these districts “must
be remedied.” 274 F. Supp. 3d, at 686; see also 267 F. Supp.
3d, at 795 (describing State House district violations that
“must be remedied”). Mindful that October 1 was the deadline
for the Texas secretary of state to provide voter registration
templates to the State's counties, App. 380a–381a, the
court took steps to bring about prompt remedial action. In
two orders issued on August 15 and 24, the Texas attorney
general was instructed to advise the court, within three
days, “whether the Legislature intends to take up redistricting
in an effort to cure these violations.” 274 F. Supp. 3d,
at 686; 267 F. Supp. 3d, at 795. If the Legislature chose not
to do so, the court warned, it would “hold a hearing to consider
remedial plans.” Ibid. After the Governor made
clear that the State would not act, the court ordered the
parties to proceed with a hearing on the congressional plan
on September 5, as well as a hearing on the plan for the
Texas House on September 6. 274 F. Supp. 3d, at 686; 267
F. Supp. 3d, at 795; App. 134a–136a; Defendants' Opposed
Motion To Stay Order on Plan C235 Pending Appeal or Final
Judgment in Civ. No. 11–cv–00360, Doc. 1538, pp. 3–4; Defendants'
Opposed Motion To Stay Order on Plan H358 Pending
Appeal or Final Judgment, Doc. 1550, pp. 4–5.
Texas applied for stays of both orders, but the District
Court denied the applications. App. 134a–136a. Texas
then asked this Court to stay the orders, and we granted
that relief. After receiving jurisdictional statements, we
postponed consideration of jurisdiction and set the cases for
consolidated argument. 583 U. S. 1088 (2018).
594 ABBOTT v. PEREZ
Opinion of the Court
II
Before reaching the merits of these appeals, we must assure
ourselves that we have jurisdiction to review the orders
at issue. Appellants claim that the orders amount to injunctions
and are therefore appealable to this Court under 28
U. S. C. § 1253. Appellees disagree, contending that the orders
do not qualify as injunctions. We hold that we have
jurisdiction because the orders were effectively injunctions
in that they barred Texas from using the districting plans
now in effect to conduct this year's elections.
A
The Judiciary Act of 1789, 1 Stat. 73, “established the general
principle that only fnal decisions of the federal district
courts would be reviewable on appeal.” Carson v. American
Brands, Inc., 450 U. S. 79, 83 (1981) (emphasis deleted).
But because “rigid application of this principle was found
to create undue hardship in some cases,” Congress created
exceptions. Ibid. Two are relevant here. We have jurisdiction
under 28 U. S. C. § 1253 to hear an appeal from an
order of a three-judge district court “granting or denying
. . . an interlocutory or permanent injunction.” Similarly,
§ 1292(a)(1) gives the courts of appeals jurisdiction over “[i]nterlocutory
orders of the district courts” “granting, continuing,
modifying, refusing or dissolving injunctions,” “except
where a direct review may be had in the Supreme Court.”
The orders in these cases fall within § 1253. To be sure,
the District Court did not call its orders “injunctions”—in
fact, it disclaimed the term, App. 134a–136a—but the label
attached to an order is not dispositive. We have previously
made clear that where an order has the “practical effect” of
granting or denying an injunction, it should be treated as
such for purposes of appellate jurisdiction. Carson, supra,
at 83; see also Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U. S. 271, 287–288 (1988). We applied this test in
Cite as: 585 U. S. 579 (2018) 595
Opinion of the Court
Carson, holding that an order that declined to enter a consent
decree prohibiting certain conduct could be appealed
under § 1292(a)(1) because it was the practical equivalent of
an order denying an injunction and threatened serious and
perhaps irreparable harm if not immediately reviewed. 450
U. S., at 83–84, 86–90.
This “practical effect” rule serves a valuable purpose. If
an interlocutory injunction is improperly granted or denied,
much harm can occur before the fnal decision in the district
court. Lawful and important conduct may be barred, and
unlawful and harmful conduct may be allowed to continue.
Recognizing this, Congress authorized interlocutory appellate
review of such orders. But if the availability of interlocutory
review depended on the district court's use of the
term “injunction” or some other particular language, Congress's
scheme could be frustrated. The harms that Congress
wanted to avoid could occur so long as the district
court was careful about its terminology. The “practical effect”
inquiry prevents such manipulation.
In analogous contexts, we have not allowed district courts
to “shield [their] orders from appellate review” by avoiding
the label “injunction.” Sampson v. Murray, 415 U. S. 61,
87 (1974). For instance, in Sampson, we held that an order
labeled a temporary restraining order (which is not appealable
under § 1292(a)(1)) should be treated as a “preliminary
injunction” (which is appealable) since the order had the
same practical effect as a preliminary injunction. Id., at
86–88.
Appellees and the dissent contend that the “practical
effect” approach should be confned to § 1292(a)(1), but we
see no good reason why it should not apply to § 1253 as well.
Appellees note that we “narrowly constru[e]” § 1253, Goldstein
v. Cox, 396 U. S. 471, 478 (1970), but we also construe
§ 1292(a)(1) “narrowly,” Carson, supra, at 84. In addition,
the relevant language in the two provisions is nearly identi596
ABBOTT v. PEREZ
Opinion of the Court
cal; 10 both provisions serve the same purpose; and we
have previously called them “analogous.” Goldstein, supra,
at 475.
The provisions are also textually interlocked. Section
1292(a)(1) does not apply where “direct review may be had
in the Supreme Court,” i. e., where § 1253 applies. If the
“practical effects” test applied under § 1292(a)(1) but not
§ 1253, the consequences would be unfortunate and strange.
We would have to identify the magic language needed for an
order to qualify as an order granting or denying an injunction,
and that standard would hardly constitute the sort of
“[s]imple” rule that the dissent prizes. Post, at 635 (opinion
of Sotomayor, J.). Then, having developed that standard,
we would have to apply it in any case in which a party took
an appeal to us from an order of a three-judge court that
clearly had the practical effect of an injunction. If we concluded
that the magic-words test was not met, the order
would appear to be appealable to one of the courts of appeals
under § 1292(a)(1). In the language of that provision, the
order would be an “orde[r] of [a] district cour[t] of the United
States . . . granting [an] injunctio[n].” And because this
Court would lack jurisdiction under § 1253, the appeal would
not fall within § 1292(1)'s exception for cases “where a direct
review may be had in the Supreme Court.” Having taken
pains to provide for review in this Court, and not in the
courts of appeals, of three-judge court orders granting injunctions
Congress surely did not intend to produce that
result.11
10 In relevant part, § 1253 applies to “an order granting . . . an interlocutory
. . . injunction.” Section 1292(a)(1) applies to “[i]nterlocutory orders
. . . granting . . . injunctions.” Although the similarity is obvious, the
dissent perceives some unspecifed substantive difference.
11 The dissent sees nothing strange about such a result because we held
in Mitchell v. Donovan, 398 U. S. 427 (1970) (per curiam), that we lacked
jurisdiction under § 1253 to hear an appeal from a three-judge court order
denying a declaratory judgment. The decision in Donovan was based on
the plain language of § 1253, which says nothing about orders granting or
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Opinion of the Court
Appellees argue that an order denying an injunction (the
situation in Carson) and an order granting an injunction (the
situation here) should be treated differently, Brief for Appellees
in No. 17–586, p. 27, but they offer no convincing reason
for doing so. No authority supports their argument. The
language of §§ 1253 and 1292(a)(1) makes no such distinction,
and we have stated that the “practical effect” analysis
applies to the “granting or denying” of injunctions. Gulfstream,
supra, at 287–288.
In addition, appellees' suggested distinction would put appellate
courts in an awkward position. Suppose that a district
court granted an injunction that was narrower than the
one requested by the moving party. Would an appellate
court (whether this Court or a court of appeals) have jurisdiction
to rule on only part of that decision? Suppose the
appellate court concluded that the district court was correct
in refusing to give the movant all the injunctive relief it
sought because the movant's entire claim was doomed to fail.
Would the appellate court be limited to holding only that the
lower court properly denied the relief that was withheld?
The rule advocated by the appellees would needlessly complicate
appellate review.12
denying declaratory judgments. By contrast, § 1253 gives us jurisdiction
to hear appeals from orders granting or denying injunctions.
The same goes for Rockefeller v. Catholic Medical Center of Brooklyn
& Queens, Inc., 397 U. S. 820 (1970) (per curiam), also cited by the
dissent. In that case, the District Court issued a declaratory judgment,
not an injunction. Again, the text of § 1253 says nothing about declaratory
judgments.
12 The inquiry required by the practical effects test is no more diffcult
when the question is whether an injunction was effectively granted than
it is when the question is whether an injunction was effectively denied.
Lower courts have had “no problem concluding that [certain orders have]
the practical effect of granting an injunction.” I. A. M. Nat. Pension
Fund Beneft Plan A v. Cooper Industries, Inc., 789 F. 2d 21, 24 (CADC
1986); see also Andrew v. American Import Center, 110 A. 3d 626, 634
(DC 2015) (“[G]ranting a stay pending arbitration does have the `practical
effect' of enjoining the party opposing arbitration”).
598 ABBOTT v. PEREZ
Opinion of the Court
Finally, appellees point in passing to Rule 65(d) of the Federal
Rules of Civil Procedure, which requires that an injunction
“state its terms specifcally” and “describe in reasonable
detail . . . the act or acts restrained or required.” Rules
65(d)(1)(B), (C); see Brief for Appellees in No. 17–586, at 27.
But as explained in Gunn v. University Comm. to End War
in Viet Nam, 399 U. S. 383, 389, n. 4 (1970), we have never
suggested that a failure to meet the specifcity requirements
of Rule 65(d) would “deprive the Court of jurisdiction
under § 1253.”
A contrary holding would be perverse. Rule 65(b) protects
the party against which an injunction is issued by requiring
clear notice as to what that party must do or refrain
from doing. Where a vague injunction does not comply with
Rule 65(b), the aggrieved party has a particularly strong
need for appellate review. It would be odd to hold that
there can be no appeal in such a circumstance.
For these reasons, we hold that we have jurisdiction under
§ 1253 to hear an appeal from an order that has the same
practical effect as one granting or denying an injunction.
B
With these principles settled, we conclude that the orders
in these cases qualify as interlocutory injunctions under
§ 1253. The text of the orders and the context in which they
were issued make this clear.
The orders are unequivocal that the current legislative
plans “violate § 2 and the Fourteenth Amendment” and that
these violations “must be remedied.” 274 F. Supp. 3d, at
686; see also, e. g., 267 F. Supp. 3d, at 795 (“[V]iolations found
by this Court in its Order on [the State House plan] now
require a remedy”); ibid. (“In Bell County, the intentional
discrimination previously found by the Court must be remedied”);
ibid. (“In Dallas County, the intentional discrimination
previously found by the Court must be remedied”).
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Opinion of the Court
We do not suggest that this language alone is suffcient to
show that the orders had the practical effect of enjoining use
of the current plans in this year's elections, but the court did
not stop with these pronouncements. As we have noted, the
orders required the Texas attorney general to inform the
court within three days whether the Legislature would remedy
the violations, and the orders stated that if the Legislature
did not intend to adopt new plans, the court would hold
remedial hearings.
The short time given the Legislature to respond is strong
evidence that the three-judge court did not intend to allow
the elections to go ahead under the plans it had just condemned.
The Legislature was not in session, so in order to
take up the task of redistricting, the Governor would have
been required to convene a special session—which is no small
matter. And, when the Governor declined to call a special
session, the court moved ahead with its scheduled hearings
and invited the parties to continue preparing for them even
after this Court administratively stayed the August 15 order.
The import of these actions is unmistakable: The court intended
to have new plans ready for use in this year's elections.
Nothing in the record even hints that the court contemplated
the possibility of allowing the elections to proceed
under the 2013 plans.
What is more, Texas had reason to believe that it would
risk deleterious consequences if it defed the court and attempted
to conduct the elections under the plans that the
court had found to be based on intentional racial discrimination.
In the very orders at issue, the court inferred discriminatory
intent from Texas's choice to appeal the D. C. court's
preclearance decision rather than immediately taking steps
to bring its plans into compliance with that decision. 274
F. Supp. 3d, at 649; see Part III, infra. Reading such an
order, Texas had reason to fear that if it tried to conduct
elections under plans that the court had found to be racially
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discriminatory, the court would infer an evil motive and
perhaps subject the State once again to the strictures
of preclearance under § 3(c) of the VRA.13 This is a
remedy that the plaintiffs hoped to obtain, see, e. g., App.
177a, and that the District Court seemed inclined to consider,
see C. J. S. 122a–123a (declining to declare moot the challenges
to the long-since-repealed 2011 plans because “there
remains the possibility of declaratory and equitable relief
under § 3(c)”).
Contending that the orders here do not qualify under
§ 1253, appellees analogize these cases to Gunn, 399 U. S.
383, but there is no relevant similarity. In Gunn, anti-war
protesters were charged with violating a Texas “disturbingthe-
peace statute,” id., at 384, and they challenged the constitutionality
of the statute in federal court. After the state
charges were dismissed, the District Court issued a “discursive”
opinion “expressing the view that [the statute was] constitutionally
invalid.” Id., at 386–387. But the court then
refrained from going any further, “pending the next session,
special or general, of the Texas legislature, at which time the
State of Texas may, if it so desires, enact such disturbingthe-
peace statute as will meet constitutional requirements.”
University Comm. to End War in Viet Nam v. Gunn, 289
F. Supp. 469, 475 (WD Tex. 1968). The defendants appealed
to this Court, and at the time of our decision two years later,
neither the Legislature nor the District Court had taken any
further action. We therefore held that we lacked jurisdiction
under § 1253. The District Court order in that case did
not have the same practical effect as an injunction. Indeed,
13 Section 3(c) provides that if “the court fnds that violations of the
fourteenth or ffteenth amendment justif [y] equitable relief,” the court
“shall retain jurisdiction for such period as it may deem appropriate and
during such period no voting” practice shall go into effect unless frst
precleared by the court or the United States Attorney General. 52
U. S. C. § 10302(c).
Cite as: 585 U. S. 579 (2018) 601
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it had no practical effect whatsoever and is thus entirely different
from the orders now before us.14
Appellees suggest that appellate jurisdiction is lacking in
these cases because we do not know at this point “what a
remedy would entail, who it would affect, and when it would
be implemented.” Brief for Appellees in No. 17–586, at 27.
The dissent makes a similar argument with respect to two
of the Texas House districts. Post, at 633–634.15 But the
issue here is whether this year's elections can be held under
the plans enacted by the Legislature, not whether any particular
remedies would have ultimately been ordered by the
District Court.
Appellees and the dissent also fret that this Court will be
inundated with redistricting appeals if we accept jurisdiction
14 The other authority cited by the dissent is a footnote in Whitcomb v.
Chavis, 403 U. S. 124 (1971), a case that came to us in an exceedingly
complicated procedural posture. In Whitcomb, the District Court held in
August 1969 that Indiana's legislative districting scheme was unconstitutional,
but the court made it clear that it would take no further action
for two months. See Chavis v. Whitcomb, 305 F. Supp. 1364, 1392 (SD
Ind.). The Governor nevertheless appealed to this Court, but by the time
we ruled, the Governor had taken another appeal from a later order, entered
in December 1969, prohibiting the use of Indiana's current plans and
requiring the use of court-created plans in the 1970 elections. See 403
U. S., at 139; Juris. Statement in Whitcomb v. Chavis, O. T. 1970, No. 92,
pp. 1–3. And to further complicate matters, by the time we reviewed the
case, the Indiana Legislature had enacted new plans. Whitcomb, 403
U. S., at 140.
This Court entertained the later appeal and reversed, but the Court
dismissed the earlier—and by then, entirely superfuous—appeal, stating
that, at the time when it was issued, “no judgment had been entered and
no injunction had been granted or denied.” Id., at 138, n. 19. But that
cursory conclusion has little relevance here, where the District Court's
orders were far more specifc, immediate, and likely to demand compliance.
15 While we think it clear that the District Court effectively enjoined
the use of these districts as currently confgured for this year's elections,
even if the court had not done so, that would not affect our jurisdiction to
review the court's order with respect to all other districts.
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here, Brief for Appellees in No. 17–626, p. 34; post, at 635–
637, and n. 8, but there is no reason to fear such a food.
Because § 1253 expressly authorizes “interlocutory” appeals,
there is no question that there can be more than one appeal
in a case challenging a redistricting plan. District courts
sometimes expressly enjoin the use of districting plans before
moving on to the remedial phase. See, e. g., Whitford
v. Gill, No. 3:15–cv–421 (WD Wis., Feb. 22, 2017), Doc. 190;
Harris v. McCrory, No. 1:13–cv–949 (MDNC, Feb. 5, 2016),
Doc. 143. But appeals from such orders have not overwhelmed
our docket. Our holding here will affect only a
small category of additional cases.16
It should go without saying that our decision does not
mean that a State can always appeal a district court order
holding a redistricting plan unlawful. A fnding on liability
cannot be appealed unless an injunction is granted or denied,
and in some cases a district court may see no need for interlocutory
relief. If a plan is found to be unlawful long before
the next scheduled election, a court may defer any injunctive
relief until the case is completed. And if a plan is found to
be unlawful very close to the election date, the only reasonable
option may be to use the plan one last time.
We appreciate our obligation to heed the limits of our jurisdiction,
and we reiterate that § 1253 must be strictly construed.
But it also must be sensibly construed, and here the
District Court's orders, for all intents and purposes, constituted
injunctions barring the State from conducting this
year's elections pursuant to a statute enacted by the Legislature.
Unless that statute is unconstitutional, this would seriously
and irreparably harm17 the State, and only an inter-
16 The dissent cites exactly two cases (Gunn and Whitcomb) decided
during the past half-century in which a party attempted to take an appeal
to this Court from a three-judge court order holding a state statute unconstitutional
but declining to issue an injunction.
17 The dissent argues that we give “short shrift” to the irreparable harm
question, post, at 637, but the inability to enforce its duly enacted plans
Cite as: 585 U. S. 579 (2018) 603
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locutory appeal can protect that State interest. See Carson,
450 U. S., at 89–90. As a result, § 1253 provides jurisdiction.
III
We now turn to the merits of the appeal. The primary
question is whether the Texas court erred when it required
the State to show that the 2013 Legislature somehow purged
the “taint” that the court attributed to the defunct and
never-used plans enacted by a prior Legislature in 2011.
A
Whenever a challenger claims that a state law was enacted
with discriminatory intent, the burden of proof lies with the
challenger, not the State. Reno v. Bossier Parish School
Bd., 520 U. S. 471, 481 (1997). This rule takes on special
signifcance in districting cases.
Redistricting “is primarily the duty and responsibility of
the State,” and “[f]ederal-court review of districting legislation
represents a serious intrusion on the most vital of local
functions.” Miller v. Johnson, 515 U. S. 900, 915 (1995) (internal
quotation marks omitted). “[I]n assessing the suffciency
of a challenge to a districting plan,” a court “must
be sensitive to the complex interplay of forces that enter a
legislature's redistricting calculus.” Id., at 915–916. And
the “good faith of [the] state legislature must be presumed.”
Id., at 915.
The allocation of the burden of proof and the presumption
of legislative good faith are not changed by a fnding of past
discrimination. “[P]ast discrimination cannot, in the manner
of original sin, condemn governmental action that is not
itself unlawful.” Mobile, 446 U. S., at 74 (plurality opinion).
The “ultimate question remains whether a discriminatory intent
has been proved in a given case.” Ibid. The “historiclearly
inficts irreparable harm on the State, see, e. g., Maryland v. King,
567 U. S. 1301 (2012) (Roberts, C. J., in chambers).
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cal background” of a legislative enactment is “one evidentiary
source” relevant to the question of intent. Arlington
Heights v. Metropolitan Housing Development Corp., 429
U. S. 252, 267 (1977). But we have never suggested that
past discrimination fips the evidentiary burden on its head.
Neither the District Court nor appellees have pointed to
any authority that would justify shifting the burden. The
appellees rely primarily on Hunter v. Underwood, 471 U. S.
222 (1985), but that case addressed a very different situation.
Hunter involved an equal protection challenge to an article
of the Alabama Constitution adopted in 1901 at a constitutional
convention avowedly dedicated to the establishment
of white supremacy. Id., at 228–230. The article disfranchised
anyone convicted of any crime on a long list that included
many minor offenses. Id., at 226–227. The court
below found that the article had been adopted with discriminatory
intent, and this Court accepted that conclusion. Id.,
at 229. The article was never repealed, but over the years,
the list of disqualifying offenses had been pruned, and the
State argued that what remained was facially constitutional.
Id., at 232–233. This Court rejected that argument because
the amendments did not alter the intent with which the article,
including the parts that remained, had been adopted.
Id., at 233. But the Court specifcally declined to address
the question whether the then-existing version would have
been valid if “[re]enacted today.” Ibid.
In these cases, we do not confront a situation like the one
in Hunter. Nor is this a case in which a law originally
enacted with discriminatory intent is later reenacted by a
different legislature. The 2013 Texas Legislature did not
reenact the plan previously passed by its 2011 predecessor.
Nor did it use criteria that arguably carried forward the effects
of any discriminatory intent on the part of the 2011
Legislature. Instead, it enacted, with only very small
changes, plans that had been developed by the Texas court
pursuant to instructions from this Court “not to incorporate
. . . any legal defects.” Perry, 565 U. S., at 394.
Cite as: 585 U. S. 579 (2018) 605
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Under these circumstances, there can be no doubt about
what matters: It is the intent of the 2013 Legislature. And
it was the plaintiffs' burden to overcome the presumption of
legislative good faith and show that the 2013 Legislature
acted with invidious intent.
The Texas court contravened these basic principles. Instead
of holding the plaintiffs to their burden of overcoming
the presumption of good faith and proving discriminatory
intent, it reversed the burden of proof. It imposed on the
State the obligation of proving that the 2013 Legislature had
experienced a true “change of heart” and had “engage[d]
in a deliberative process to ensure that the 2013 plans
cured any taint from the 2011 plans.” 274 F. Supp. 3d,
at 649.
The Texas court's references to the need to “cure” the earlier
Legislature's “taint” cannot be dismissed as stray comments.
On the contrary, they were central to the court's
analysis. The court referred repeatedly to the 2013 Legislature's
duty to expiate its predecessor's bad intent, and when
the court summarized its analysis, it drove the point home.
It stated: “The discriminatory taint [from the 2011 plans] was
not removed by the Legislature's enactment of the Court's
interim plans, because the Legislature engaged in no deliberative
process to remove any such taint, and in fact intended
any such taint to be maintained but be safe from remedy.”
Id., at 686.18
18 The dissent attempts to rehabilitate this statement by focusing on the
last part of this sentence, in which the District Court stated that the
Legislature “ ` “intended [the] taint to be maintained but safe from remedy.”
' ” Post, at 654. In making this argument, the dissent, like the District
Court, refuses to heed the presumption of legislative good faith and
the allocation of the burden of proving intentional discrimination. We
do not dispute that the District Court purportedly found that the 2013
Legislature acted with discriminatory intent. The problem is that, in
making that fnding, it relied overwhelmingly on what it perceived to be
the 2013 Legislature's duty to show that it had purged the bad intent of
its predecessor.
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The dissent labors to explain away all these references to
the 2013 Legislature's supposed duty to purge its predecessor's
allegedly discriminatory intent, but the dissent loses
track of its own argument and characterizes the District
Court's reasoning exactly as we have. Indeed, the dissent
criticizes us on page 653 of its opinion for saying precisely
the same thing that it said 11 pages earlier. On page 653,
the dissent states:
“[T]he majority quotes the orders as requiring proof
that the Legislature ` “engage[d] in a deliberative process
to ensure that the 2013 plans cured any taint from
the 2011 plans.” ' But the District Court did not put
the burden on Texas to make that affrmative showing.”
Post, at 653 (quoting supra, at 605, in turn quoting 274
F. Supp. 3d, at 649; citations omitted).
But earlier, the dissent itself describes the District Court's
analysis as follows:
“Despite knowing of the discrimination in its 2011 maps,
`the Legislature did not engage in a deliberative process
to ensure that the 2013 plans cured any taint from the
2011 plans.' ” Post, at 642–643 (quoting 274 F. Supp. 3d,
at 649).
And this is not just a single slip of the pen. The dissent
writes that the District Court was required “to assess how
the 2013 Legislature addressed the known discrimination
that motivated” the districts approved by that Court in 2012.
Post, at 651. The dissent quotes the District Court's statement
that “ `there is no indication that the Legislature looked
to see whether any discriminatory taint remained in the
plans.' ” Post, at 644 (quoting 274 F. Supp. 3d, at 649). And
there is also this: “Texas was just `not truly interested in
fxing any remaining discrimination in [its 2011 maps].' ”
Post, at 642 (quoting 274 F. Supp. 3d, at 651, n. 45). The
District Court's true mode of analysis is so obvious that the
Cite as: 585 U. S. 579 (2018) 607
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dissent cannot help but repeat it. And that approach was
fundamentally fawed and demands reversal.
While a district court's fnding of fact on the question of
discriminatory intent is reviewed for clear error, see Cromartie,
532 U. S., at 242, whether the court applied the correct
burden of proof is a question of law subject to plenary
review, U. S. Bank N. A. v. Village at Lakeridge, LLC, 583
U. S. 387, 393 (2018); Highmark Inc. v. Allcare Health Management
System, Inc., 572 U. S. 559, 563 (2014). And when
a fnding of fact is based on the application of an incorrect
burden of proof, the fnding cannot stand. Bose Corp. v.
Consumers Union of United States, Inc., 466 U. S. 485, 501
(1984) (“An appellate cour[t has] power to correct errors of
law, including those that . . . infect . . . a fnding of fact that
is predicated on a misunderstanding of the governing rule
of law”).
B
In holding that the District Court disregarded the presumption
of legislative good faith and improperly reversed
the burden of proof, we do not suggest either that the intent
of the 2011 Legislature is irrelevant or that the plans enacted
in 2013 are unassailable because they were previously
adopted on an interim basis by the Texas court. Rather,
both the intent of the 2011 Legislature and the court's adoption
of the interim plans are relevant to the extent that they
naturally give rise to—or tend to refute—inferences regarding
the intent of the 2013 Legislature. They must be
weighed together with any other direct and circumstantial
evidence of that Legislature's intent. But when all the relevant
evidence in the record is taken into account, it is plainly
insuffcient to prove that the 2013 Legislature acted in bad
faith and engaged in intentional discrimination.19 See, e. g.,
19 The dissent is simply wrong in claiming over and over that we have
not thoroughly examined the record. See post, at 639, 647–648, 650, 654,
662, 665. The dissent seems to think that the repetition of these charges
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Ricci v. DeStefano, 557 U. S. 557, 585 (2009); McCleskey v.
Zant, 499 U. S. 467, 497 (1991). There is thus no need for
any further prolongation of this already protracted litigation.
The only direct evidence brought to our attention suggests
that the 2013 Legislature's intent was legitimate. It wanted
to bring the litigation about the State's districting plans to
an end as expeditiously as possible. The attorney general
advised the Legislature that the best way to do this was to
adopt the interim, court-issued plans. The sponsor of the
2013 plans voiced the same objective, and the Legislature
then adopted the court-approved plans.
On its face, this explanation of the Legislature's intent is
entirely reasonable and certainly legitimate. The Legislature
had reason to know that any new plans it devised were
likely to be attacked by one group of plaintiffs or another.
(The plaintiffs' conficting positions with regard to some of
the districts in the plans now before us bear this out.) Litigating
districting cases is expensive and time consuming,
and until the districts to be used in the next election are
frmly established, a degree of uncertainty clouds the electoral
process. Wishing to minimize these effects is understandable
and proper.
The court below discounted this direct evidence, but its
reasons for doing so are not sound. The court stated that
the “strategy” of the 2013 Legislature was to “insulate [the
plans] from further challenge, regardless of [the plans'] legal
infrmities.” 274 F. Supp. 3d, at 650; see also id., at 651,
n. 45. But there is no evidence that the Legislature's aim
was to gain acceptance of plans that it knew were unlawful.20
somehow makes them true. It does not. On the contrary, it betrays the
substantive weakness of the dissent's argument.
20 The dissent and the District Court attach much meaning to the attorney
general's use of the term “insulate” when he advised the Legislature
to adopt the District Court's plans to avoid further legal challenge. Setting
aside that the word “insulate” is a common term used to describe
minimizing legal concerns, the context of the letter makes clear that the
attorney general was trying to make the point that adopting these plans
was the best method of obtaining legal compliance, not the start of a grand
Cite as: 585 U. S. 579 (2018) 609
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Indeed, there is no evidence that the Legislature thought
that the plans were invalid—and as we will explain, the Legislature
had sound reasons to believe just the opposite.21
The District Court found it signifcant that the Legislature
must have realized that enacting the interim plans would
not “end the litigation,” because it knew that at least some
plaintiffs would pursue their challenges anyway. Id., at 651,
n. 45. But even if, as seems likely, the Legislature did not
think that all the plaintiffs would immediately abandon all
their claims, it does not follow that the Legislature was insincere
in stating that it adopted the court-approved plan with
the aim of bringing the litigation to a close. It was reasonable
for the Legislature to think that approving the courtapproved
plans might at least reduce objections and thus
simplify and expedite the conclusion of the litigation.22 That
MALDEF, counsel for one of the plaintiff groups, testifed in
favor of the plans is evidence that the Legislature's objective
was reasonable. C. J. S. 436a–439a.
Not only does the direct evidence suggest that the 2013
Legislature lacked discriminatory intent, but the circumstanconspiracy
to trick the District Court. Indeed, if his plan was to dupe
the District Court, shouting it to the world in a public letter was an odd
way to go about it.
21 In any event, the Texas court was simply wrong that Texas believed
its plans would be free from any legal challenge. 274 F. Supp. 3d 624,
651 (2017). Texas consistently acknowledged that effects claims would
continue to be available and responded in detail to those arguments in
both the District Court and this Court. See Brief for Appellants 64; Defendants'
Post-Trial Brief, Doc. 1526, p. 53. Moreover, Texas has not argued
that intentional discrimination claims are unavailable; it has instead
argued that intent must be assessed with respect to the 2013 Legislature,
the Legislature that actually enacted the plans at issue.
22 The 2013 Legislature had no reason to believe that the District Court
would spend four years examining moot plans before reversing its own
previous decisions by imputing the intent of the 2011 Legislature to the
2013 Legislature. At the very least, the 2013 Legislature had good reason
to believe that adopting the court-approved plans would lessen the time,
expense, and complexity of further litigation (even if that belief turned out
to be wrong).
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tial evidence points overwhelmingly to the same conclusion.
Consider the situation when the Legislature adopted the
court-approved interim plans. First, the Texas court had
adopted those plans, and no one would claim that the court
acted with invidious intent when it did so. Second, the
Texas court approved those plans only after reviewing them
and modifying them as required to comply with our instructions.
Not one of the judges on that court expressed the
view that the plans were unlawful. Third, we had directed
the Texas court to make changes in response to any claims
under the Equal Protection Clause and § 2 of the VRA if
those claims were merely likely to prevail. Perry, 565 U. S.,
at 394. And the Texas court was told to accommodate any
claim under § 5 of the VRA unless it was “insubstantial.”
Id., at 395. Fourth, the Texas court had made a careful analysis
of all the claims, had provided a detailed examination of
individual districts, and had modifed many districts. Its
work was anything but slapdash. All these facts gave the
Legislature good reason to believe that the court-approved
interim plans were legally sound.
Is there any evidence from which a contrary inference can
reasonably be drawn? Appellees stress the preliminary nature
of the Texas court's approval of the interim plans, and
as we have said, that fact is relevant. But in light of our
instructions to the Texas court and the care with which the
interim plans were developed, the court's approval still gave
the Legislature a sound basis for thinking that the interim
plans satisfed all legal requirements.
The court below and the dissent infer bad faith because the
Legislature “pushed the redistricting bills through quickly
in a special session.” 274 F. Supp. 3d, at 649. But we do
not see how the brevity of the legislative process can give
rise to an inference of bad faith—and certainly not an inference
that is strong enough to overcome the presumption of
legislative good faith (a concept to which the dissent pays
Cite as: 585 U. S. 579 (2018) 611
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only the briefest lipservice, post, at 641). The “special session”
was necessary because the regular session had ended.
As explained, the Legislature had good reason to believe that
the interim plans were sound, and the adoption of those
already-completed plans did not require a prolonged process.
After all, part of the reason for adopting those plans was to
avoid the time and expense of starting from scratch and leaving
the electoral process in limbo while that occurred.23
The District Court and the dissent also err when they
charge that Representative Darby, the chair of the Texas
House Redistricting Committee at the time in question,
“ `willfully ignored those who pointed out defciencies' ” in the
plans. Post, at 643 (quoting 274 F. Supp. 3d, at 651, n. 45).
This accusation is not only misleading, it misses the point.
The Legislature adopted the interim plans in large part because
they had the preliminary approval of the District
Court, and Darby was open about the fact that he wanted to
minimize amendments to the plans for that reason. See,
e. g., Joint Exh. 17.3, pp. S1–S2. That Darby generally
hoped to minimize amendments—so that the plans would
remain legally compliant—hardly shows that he, or the
Legislature, acted with discriminatory intent. In any event,
it is misleading to characterize this attitude as “willfu[l]
ignor[ance]. ” The record shows that, although Darby
hoped to minimize amendments, he did not categorically refuse
to consider changes. This is illustrated by his support
for an amendment to HD90, which was offered by the thenincumbent,
Democrat Lon Burnam, precisely because it fxed
an objection raised by the Mexican-American Legal Caucus
23 Moreover, in criticizing the Legislature for moving too quickly, the
dissent downplays the signifcant time and effort that went into consideration
of the 2013 plans. Legislative committees held multiple feld hearings
in four cities, Tr. 1507 (July 14, 2017), and the legislative actors spent
signifcant time considering the legislation, as well as accepting and rejecting
amendments, see, e. g., Joint Exh. 17.3, p. S29; Joint Exh. 24.4, p. 21.
612 ABBOTT v. PEREZ
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(MALC) that the district's Latino population was too low.
267 F. Supp. 3d, at 790.24
The Texas court faulted the 2013 Legislature for failing to
take into account the problems with the 2011 plans that the
D. C. court identifed in denying preclearance, ibid., but the
basis for that criticism is hard to understand. One of the
2013 Legislature's principal reasons for adopting the courtapproved
plans was to fx the problems identifed by the D. C.
court. The attorney general advised the Legislature to
adopt the interim plans because he thought that was the
“best way to remedy the violations found by the D. C. court.”
C. J. S. 432a. Chairman Darby similarly stated that the 2013
plans fxed the errors found by the D. C. court, Tr. 1498,
1584–1585 (July 14, 2017), as did Senator Seliger, Joint Exh.
26.2, p. A–5.
There is nothing to suggest that the Legislature proceeded
in bad faith—or even that it acted unreasonably—in pursuing
this strategy. Recall that we instructed the Texas court, in
developing the interim plans, to remedy any § 5 claim that
was “not insubstantial.” Perry, 565 U. S., at 395. And that
is just what the interim plans, which the Legislature later
enacted, attempted to do. For instance, the D. C. court held
that the congressional plan had one too few “ability to elect”
districts for Latinos, largely because of changes to CD23,
Texas, 887 F. Supp. 2d, at 156–159; the interim plan (and, by
extension, the 2013 plan) amended CD23, C. J. S. 397a–399a.
Similarly, in the plan for the Texas House, the D. C. court
found § 5 retrogression with respect to HD35, HD117, and
HD149, Texas, supra, at 167–175, and all of those districts
were changed in the 2013 plans, H. J. S. 305a–307a, 312a.
24 The dissent tries to minimize the relevance of this amendment by arguing
that it turned HD90 into a racial gerrymander. See post, at 643,
n. 12. But again this is misleading. The Legislature adopted changes to
HD90 at the behest of minority groups, not out of a desire to discriminate.
See Part IV–B, infra. That is, Darby was too solicitous of changes with
respect to HD90.
Cite as: 585 U. S. 579 (2018) 613
Opinion of the Court
Although the D. C. court found that the 2011 Legislature
acted with discriminatory intent in framing the congressional
plan, that fnding was based on evidence about districts
that the interim plan later changed. The D. C. court
was concerned about the intent refected in the drawing of
CDs 9, 18, and 30, but all those districts were amended by
the Texas court. Texas, supra, at 159–160; C. J. S. 406a–
408a. With respect to the plan for the Texas House, the
D. C. court made no intent fndings, but its areas of concern
were generally addressed by the Texas court and the 2013
plans. Compare Texas, supra, at 178 (noting evidence of unlawful
intent in HD117), with H. J. S. 307a (amending
HD117).25
It is indicative of the District Court's mistaken approach
that it inferred bad faith from Texas's decision to take an
appeal to this Court from the D. C. court's decision denying
preclearance. See 274 F. Supp. 3d, at 649 (“Defendants did
not accept [these fndings] and instead appealed to the Supreme
Court”). Congress gave the State the right to appeal,
and no bad motive can be inferred from its decision
to make use of this right—unless of course the State had
no reasonable grounds for appeal. Before our decision in
Shelby County mooted Texas's appeal to this Court from the
D. C. court's preclearance decision, Texas fled a jurisdictional
statement claiming that the D. C. court made numerous
errors, but the Texas court made no attempt to show
that Texas's arguments were frivolous.
As a fnal note, appellees assert that the 2013 Legislature
should have either defended the 2011 plans in litigation or
gone back to the drawing board and devised entirely new
plans, Brief for Appellees in No. 17–626, at 45, but there is
25 In assessing the signifcance of the D. C. court's evaluation of intent,
it is important not to forget that the burden of proof in a preclearance
proceeding was on the State. Texas v. United States, 887 F. Supp. 2d 133,
151 (DC 2012). Particularly where race and partisanship can so often be
confused, see supra, at 586, and n. 3, the burden of proof may be crucial.
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no reason why the Legislature's options should be limited in
this way. It was entirely permissible for the Legislature to
favor a legitimate option that promised to simplify and reduce
the burden of litigation. That the Legislature chose
this course is not proof of discriminatory intent.
IV
Once the Texas court's intent fnding is reversed, there
remain only four districts that were invalidated on alternative
grounds. For three of these districts, the District
Court relied on the “effects” test of § 2. We reverse as to
each of these, but we affrm the District Court's fnal holding
that HD90 is a racial gerrymander.
A
To make out a § 2 “effects” claim, a plaintiff must establish
the three so-called “Gingles factors.” These are (1) a geographically
compact minority population suffcient to constitute
a majority in a single-member district, (2) political cohesion
among the members of the minority group, and (3) bloc
voting by the majority to defeat the minority's preferred
candidate. Gingles, 478 U. S., at 48–51; LULAC, 548 U. S.,
at 425. If a plaintiff makes that showing, it must then go
on to prove that, under the totality of the circumstances, the
district lines dilute the votes of the members of the minority
group. Id., at 425–426.
1
The Texas court held that CD27 violates § 2 of the VRA
because it has the effect of diluting the votes of Latino voters
in Nueces County. C. J. S. 191a. CD27 is anchored in
Nueces County (home to Corpus Christi) and follows the
Gulf of Mexico to the northeast before taking a turn inland
to the northwest in the direction of Austin. Nueces County
contains a Latino population of roughly 200,000 (a little less
than one-third the size of an ideal Texas congressional district),
and the court held that the Nueces County Latinos
Cite as: 585 U. S. 579 (2018) 615
Opinion of the Court
should have been included in a Latino opportunity district,
rather than CD27, which is not such a district. The court
found that an area centered on Nueces County satisfes the
Gingles factors and that, under the totality of the circumstances,
the placement of the Nueces County Latinos in
CD27 deprives them of the equal opportunity to elect candidates
of their choice. C. J. S. 181a–195a.
The problem with this holding is that plaintiffs could not
establish a violation of § 2 of the VRA without showing that
there is a “ `possibility of creating more than the existing
number of reasonably compact' ” opportunity districts.
LULAC, supra, at 430. And as the Texas court itself found,
the geography and demographics of south and west Texas do
not permit the creation of any more than the seven Latino
opportunity districts that exist under the current plan. 274
F. Supp. 3d, at 684, and n. 85.
Attempting to get around this problem, the Texas court
relied on our decision in LULAC, but it misapplied our holding.
In LULAC, we held that the State should have created
six proper Latino opportunity districts but instead drew only
fve. 548 U. S., at 435. Although the State claimed that the
plan actually included a sixth opportunity district, that district
failed to satisfy the Gingles factors. 548 U. S., at 430.
We held that a “State's creation of an opportunity district
for those without a § 2 right offers no excuse for its failure
to provide an opportunity district for those with a § 2
right.” Ibid.
Here, the Texas court concluded that Texas committed the
same violation as in LULAC: It created “an opportunity district
for those without a § 2 right” (the Latinos in CD35),
while failing to create such a district “for those with a § 2
right” (the Latinos of Nueces County). Ibid. This holding
is based on a fawed analysis of CD35.
CD35 lies to the north of CD27 and runs along I–35 from
San Antonio up to Austin, the center of Travis County. In
the District Court's view, the Latinos of CD35 do not have a
616 ABBOTT v. PEREZ
Opinion of the Court
§ 2 right because one of the Gingles factors, majority bloc
voting, is not present. The Court reached this conclusion
because the non-Latino voters of Travis County tend to favor
the same candidates as the great majority of Latinos.
There are two serious problems with the District Court's
analysis.
First, the Court took the wrong approach in evaluating the
presence of majority bloc voting in CD35. The Court looked
at only one, small part of the district, the portion that falls
within Travis County. 274 F. Supp. 3d, at 683; C. J. S. 175a–
176a. But Travis County makes up only 21% of the district.
We have made clear that redistricting analysis must take
place at the district level. Bethune-Hill, 580 U. S., at 191–
192. In failing to perform that district-level analysis, the
District Court went astray.
Second, here, unlike in LULAC, the 2013 Legislature had
“good reasons” to believe that the district at issue (here
CD35) was a viable Latino opportunity district that satisfed
the Gingles factors. CD35 was based on a concept proposed
by MALDEF, C. J. S. Findings 315a–316a, and the Latino
Redistricting Task Force (a plaintiff group) argued that the
district is mandated by § 2. C. J. S. 174a. The only Gingles
factor disputed by the court was majority bloc voting, and
there is ample evidence that this factor is met. Indeed, the
court found that majority bloc voting exists throughout the
State. C. J. S. Findings 467a. In addition, the District
Court extensively analyzed CD35 in 2012 and determined
that it was likely not a racial gerrymander and that even if
it was, it likely satisfed strict scrutiny. C. J. S. 415a. In
other words, the 2013 Legislature justifably thought that it
had placed a viable opportunity district along the I–35
corridor.
2
The District Court similarly erred in holding that HD32
and HD34 violate § 2. These districts make up the entirety
of Nueces County, which has a population that is almost exCite
as: 585 U. S. 579 (2018) 617
Opinion of the Court
actly equal to twice the population of an ideal Texas House
district. (It can ft 2.0295 ideal districts. H. J. S. Findings
91a.) In 2010, Latinos made up approximately 56% of the
voting age population of the county. Ibid. The 2013 plan
created two districts that lie wholly within the county; one,
HD34, is a Latino opportunity district, but the other, HD32,
is not. 267 F. Supp. 3d, at 767.
Findings made by the court below show that these two
districts do not violate § 2 of the VRA. Under Gingles, the
ultimate question is whether a districting decision dilutes
the votes of minority voters, see LULAC, supra, at 425–426,
and it is hard to see how this standard could be met if the
alternative to the districting decision at issue would not enhance
the ability of minority voters to elect the candidates
of their choice.
The only plaintiff that pressed a § 2 claim with respect to
HD32 and HD34 was MALC, 267 F. Supp. 3d, at 767, and
as the District Court recognized, that group's own expert
determined that it was not possible to divide Nueces County
into more than one performing Latino district. In his
analysis, the expert relied on Nueces County election returns
for statewide elections between 2010 and 2016. Id.,
at 775–776. Based on this data, he calculated that when
both HD32 and HD34 were maintained as Latino-majority
districts, one performed for Latinos in only 7 out of 35 relevant
elections, and the other did so in none of the 35 elections.
Ibid. In order to create two performing districts in
that area, it was necessary, he found, to break county lines
in multiple places, id., at 778, but the District Court held
that “breaking the County Line Rule” in the Texas Constitution,
see Art. III, § 26, to “remove Anglos and incorporate
even more Hispanics to improve electoral outcomes goes beyond
what § 2 requires,” 267 F. Supp. 3d, at 783. So if Texas
could not create two performing districts in Nueces County
and did not have to break county lines, the logical result is
that Texas did not dilute the Latino vote.
618 ABBOTT v. PEREZ
Opinion of the Court
The court refused to accept this conclusion, but its reasons
for doing so cannot stand up. As an initial matter, the court
thought that the two districts would have to be redrawn
based on its fnding regarding the intent of the 2013 Legislature,
26 and it therefore deferred a fnal decision on the § 2
issue and advised the plaintiffs to consider at the remedial
phase of the case whether they preferred to have two
districts that might not perform or just one safe district.
Id., at 783. The court's decision cannot be sustained on
this ground, since its fnding of discriminatory intent is
erroneous.
The only other reason provided by the court was the observation
that MALC “failed to show” that two majority-
Latino districts in Nueces County would not perform. Id.,
at 782. This observation twisted the burden of proof beyond
recognition. It suggested that a plaintiff might succeed on
its § 2 claim because its expert failed to show that the necessary
factual basis for the claim could not be established.27
26 The District Court also purported to fnd a violation of the “one person,
one vote” principle in Nueces County, 267 F. Supp. 3d 750, 783 (2017);
H. J. S. 254a–255a, but that fnding was in actuality a restatement of its
racial discrimination fnding. The population deviations from the ideal
are quite small (0.34% in HD32 and 3.29% in HD34, id., at 254a), and the
District Court relied solely on the “evidence of the use of race in drawing
the lines in Nueces County” to fnd a one person, one vote violation. Id.,
at 255a; see also id., at 254a (“[T]he State intentionally discriminated
against minority voters by overpopulating minority districts and underpopulating
Anglo districts”). Even assuming that a court could fnd a one
person, one vote violation on the basis of such a small deviation, cf. Brown
v. Thomson, 462 U. S. 835, 842–843 (1983) (noting that deviations under
10% are generally insuffcient to show invidious discrimination), the District
Court erred in relying on its unsound fnding regarding racial
discrimination.
Moreover, plaintiffs rejected any separate one person, one vote claims
before the District Court, Tr. 22 (July 10, 2017), and they have not mentioned
such a claim as a separate theory in their briefng in this Court.
27 The District Court's belief that simple Latino majorities in Nueces
County might be suffcient to create opportunity districts—and that Texas
should have known as much—conficts with other parts of its decision.
With respect to numerous other districts, the District Court chided Texas
Cite as: 585 U. S. 579 (2018) 619
Opinion of the Court
Courts cannot fnd § 2 effects violations on the basis of uncertainty.
In any event, if even the District Court remains unsure
how to draw these districts to comply with § 2 (after
six years of litigation, almost a dozen trials, and numerous
opinions), the Legislature surely had the “ `broad discretion' ”
to comply as it reasonably saw ft in 2013, LULAC, 548 U. S.,
at 429.
The dissent charges us with ignoring the District Court's
“ `intensely local appraisal' ” of Nueces County, post, at 662,
but almost none of the “fndings” that the District Court
made with respect to HD32 and HD34 referred to present
local conditions, and none cast any signifcant light on the
question whether another opportunity district is possible at
the present time. For instance, what the dissent describes
as Texas's “long `history of voting-related discrimination,' ”
id., at 663; in no way undermines—or even has any logical
bearing on—the conclusions reached by MALC's expert
about whether Latino voters would have a real opportunity
to elect the candidates of their choice if the county were divided
into two districts with narrow majorities of Latino citizens
of voting age. The same is true with respect to the
District Court's fndings regarding racially polarized voting
in the county and Latinos' “continuing pattern of disadvantage”
relative to non-Latinos. 267 F. Supp. 3d, at 779 (internal
quotation marks omitted). Perhaps recognizing as
much, both the District Court and the dissent point to the
anticipated future growth in the percentage of eligible voters
of Latino descent, but the districts now at issue would not
necessarily be used beyond 2020, after which time the 2020
census would likely require redistricting once again.
for focusing on bare numbers and not considering real opportunity to elect.
See, e. g., C. J. S. 134a (“[T]he court rejects [the] bright-line rule that any
HCVAP-majority district is by defnition a Latino opportunity district”
because it “may still lack real electoral opportunity” (internal quotation
marks omitted)); H. J. S. 121a (Texas “increase[d the Latino population]
while simultaneously ensuring that election success rates remained minimally
improved”).
620 ABBOTT v. PEREZ
Opinion of the Court
B
HD90 is a district in Tarrant County that, unlike the other
districts at issue in this appeal, was not copied from the District
Court's interim plans. Instead, the 2013 Legislature
substantially modifed the district developed by the District
Court, and the District Court held that the 2013 Legislature's
creation is an invalid racial gerrymander. 267
F. Supp. 3d, at 794.
In drawing HD90, the Legislature was pulled in opposite
directions by competing groups. In 2011, the Legislature,
responding to pressure from MALDEF, increased the Latino
population of the district in an effort to make it a Latino
opportunity district. H. J. S. Findings 258a–262a. In the
process of doing so, the Legislature moved the community of
Como, which is predominantly African-American, out of the
district. But Como residents and the member of the Texas
House who represented the district, Lon Burnam, objected,
and in 2013, the Legislature moved Como back into the district.
267 F. Supp. 3d, at 788–789. That change was opposed
by MALC because it decreased the Latino population
below 50%. App. 398a–399a. So the Legislature moved
Latinos into the district to bring the Latino population back
above 50%. 267 F. Supp. 3d, at 789–790.
In light of these maneuvers, Texas does not dispute that
race was the predominant factor in the design of HD90, but
it argues that this was permissible because it had “ `good
reasons to believe' ” that this was necessary to satisfy § 2 of
the VRA. Bethune-Hill, 580 U. S., at 194.
Texas offers two pieces of evidence to support its claim.
The frst—that one of the plaintiffs, MALC, demanded as
much—is insuffcient. A group that wants a State to create
a district with a particular design may come to have an
overly expansive understanding of what § 2 demands. So
one group's demands alone cannot be enough.
The other item of evidence consists of the results of the
Democratic primaries in 2012 and 2014. In 2012, RepreCite
as: 585 U. S. 579 (2018) 621
Opinion of the Court
sentative Burnham, who was not the Latino candidate of
choice, narrowly defeated a Latino challenger by 159 votes.
And in 2014, the present representative, Ramon Romero, Jr.,
beat Burnam by 110 votes. See Brief for Appellants 70.
These election returns may be suggestive, but standing
alone, they were not enough to give the State good reason
to conclude that it had to alter the district's lines solely on
the basis of race. And putting these two evidentiary items
together helps, but it is simply too thin a reed to support the
drastic decision to draw lines in this way.
We have previously rejected proffers of evidence that
were at least as strong as Texas's here. For example, in
Cooper, 581 U. S., at 300, we analyzed North Carolina's justifcation
for deliberately moving “African-American voters”
into a district to “ensure . . . the district's racial composition”
in the face of its expansion in size. North Carolina argued
that its race-based decisions were necessary to comply with
§ 2, but the State could point to “no meaningful legislative
inquiry” into “whether a new, enlarged” district, “created
without a focus on race, . . . could lead to § 2 liability.” Id.,
at 304. North Carolina pointed to two expert reports on
“voting patterns throughout the State,” but we rejected that
evidence as insufficient. Ibid., n. 5. Here, Texas has
pointed to no actual “legislative inquiry” that would establish
the need for its manipulation of the racial makeup of
the district.
By contrast, where we have accepted a State's “good reasons”
for using race in drawing district lines, the State made
a strong showing of a pre-enactment analysis with justifable
conclusions. In Bethune-Hill, the State established that the
primary mapdrawer “discussed the district with incumbents
from other majority-minority districts[,] . . . considered turnout
rates, the results of the recent contested primary and
general elections,” and the district's large prison population.
580 U. S., at 194. The State established that it had performed
a “functional analysis” and acted to achieve an “in622
ABBOTT v. PEREZ
Sotomayor, J., dissenting
formed bipartisan consensus.” Ibid. Texas's showing here
is not equivalent.
Perhaps Texas could have made a stronger showing, but it
is the State's burden to prove narrow tailoring, and it did
not do so on the record before us. We hold that HD90 is an
impermissible racial gerrymander. On remand, the District
Court will have to consider what if any remedy is appropriate
at this time.
* * *
Except with respect to one Texas House district, we hold
that the court below erred in effectively enjoining the use of
the districting maps adopted by the Legislature in 2013.
We therefore reverse with respect to No. 17–586; reverse in
part and affrm in part with respect to No. 17–626; and remand
for proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Gorsuch joins,
concurring.
I adhere to my view that § 2 of the Voting Rights Act of
1965 does not apply to redistricting. See Cooper v. Harris,
581 U. S. 285, 327 (2017) (concurring opinion) (citing Holder
v. Hall, 512 U. S. 874, 922–923 (1994) (Thomas, J., concurring
in judgment)). Thus, § 2 cannot provide a basis for invalidating
any district, and it cannot provide a justifcation for
the racial gerrymander in House District 90. Because the
Court correctly applies our precedents and reaches the same
conclusion, I join its opinion in full.
Justice Sotomayor, with whom Justice Ginsburg,
Justice Breyer, and Justice Kagan join, dissenting.
The Court today goes out of its way to permit the State
of Texas to use maps that the three-judge District Court
unanimously found were adopted for the purpose of preserving
the racial discrimination that tainted its previous maps.
Cite as: 585 U. S. 579 (2018) 623
Sotomayor, J., dissenting
In reaching its desired result, the majority commits three
fundamental errors along the way.
First, the majority disregards the strict limits of our appellate
jurisdiction and reads into the District Court orders a
nonexistent injunction to justify its premature intervention.
Second, the majority indulges Texas' distorted reading of the
District Court's meticulous orders, mistakenly faulting the
court for supposedly shifting the burden of proof to the State
to show that it cured the taint of past discrimination, all the
while ignoring the clear language and unambiguous factual
fndings of the orders below. Third, the majority elides the
standard of review that guides our resolution of the factual
disputes in these appeals—indeed, mentioning it only in
passing—and selectively parses through the facts. As a result
of these errors, Texas is guaranteed continued use of
much of its discriminatory maps.
This disregard of both precedent and fact comes at serious
costs to our democracy. It means that, after years of litigation
and undeniable proof of intentional discrimination, minority
voters in Texas—despite constituting a majority of
the population within the State—will continue to be underrepresented
in the political process. Those voters must return
to the polls in 2018 and 2020 with the knowledge that
their ability to exercise meaningfully their right to vote has
been burdened by the manipulation of district lines specifcally
designed to target their communities and minimize
their political will. The fundamental right to vote is too
precious to be disregarded in this manner. I dissent.
I
A
The frst obstacle the majority faces in its quest to intervene
in these cases is jurisdictional. The statute that governs
our jurisdiction over these appeals is 28 U. S. C. § 1253,
which provides that “any party may appeal to the Supreme
Court from an order granting or denying . . . an interlocutory
624 ABBOTT v. PEREZ
Sotomayor, J., dissenting
or permanent injunction in any civil action, suit or proceeding
required by any Act of Congress to be heard and determined
by a district court of three judges.” Unlike the more
typical certiorari process, for cases falling within § 1253, appellate
review in this Court is mandatory. That is why, until
today, this Court has repeatedly recognized and adhered to
a “long-established rule” requiring “strict construction” of
this jurisdictional statute “to protect our appellate docket.”
Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 375, 378
(1949); see, e. g., Gonzalez v. Automatic Employees Credit
Union, 419 U. S. 90, 98 (1974) (noting that “only a narrow
construction” of our jurisdiction under § 1253 “is consonant
with the overriding policy, historically encouraged by Congress,
of minimizing the mandatory docket of this Court in
the interests of sound judicial administration”); Gunn v. University
Comm. to End War in Viet Nam, 399 U. S. 383, 387
(1970) (similar); Goldstein v. Cox, 396 U. S. 471, 477–478
(1970) (rejecting a construction of § 1253 that would “involve
an expansion of [our] mandatory appellate jurisdiction,” even
where the statutory text “is subject to [that] construction,”
in light of “canon of construction” requiring that § 1253 be
“narrowly construed”); Phillips v. United States, 312 U. S.
246, 248–250 (1941) (explaining that § 1253 is an “exceptional
procedure” and that “inasmuch as this procedure . . . brings
direct review of a district court to this Court, any loose construction
. . . would defeat the purposes of Congress . . . to
keep within narrow confnes our appellate docket”).
In line with that command, this Court has held that a ruling
on the merits will not suffce to invoke our mandatory
appellate jurisdiction in the absence of an order granting or
denying an injunction. In fact, even if a three-judge district
court unequivocally indicates that a state law must be enjoined
as it stands, we have required more before accepting
mandatory review. For example, the Court in Gunn found
no jurisdiction where the three-judge District Court held
that a Texas disturbing-the-peace statute was “ `impermissibly
and unconstitutionally broad,' ” concluded that the plainCite
as: 585 U. S. 579 (2018) 625
Sotomayor, J., dissenting
tiffs were “ `entitled to their declaratory judgment to that
effect, and to injunctive relief against the enforcement of [the
statute] as now worded, insofar as it may affect the rights
guaranteed under the First Amendment,' ” and stayed the
mandate to allow the State to, “ `if it so desires, enact such
disturbing-the-peace statute as will meet constitutional requirements.
' ” 399 U. S., at 386. Despite the District
Court's resolution of the merits and its clear indication that,
unless amended, the disturbing-the-peace statute would be
enjoined, this Court dismissed an appeal from the State for
want of jurisdiction, concluding that the District Court
merely wrote a “rather discursive per curiam opinion” and
“there was no order of any kind either granting or denying
an injunction—interlocutory or permanent.” Id., at 387.
The Court explained that, in addition to the congressional
command to “ `keep within narrow confnes our appellate
docket,' ” other “policy considerations” counseled limiting
“our power of review,” including “that until a district court
issues an injunction, or enters an order denying one, it is
simply not possible to know with any certainty what the
court has decided.” Id., at 387–388. Those considerations,
the Court thought, were “conspicuously evident” in that case,
where the opinion did not specify, for instance, exactly what
was to be enjoined or against whom the injunction would
run. Id., at 388.
Similarly, Whitcomb v. Chavis, 403 U. S. 124 (1971), concerned
a redistricting challenge in which a three-judge District
Court held that “a redistricting of [the challenged
county was] necessitated” and “that the evidence adduced
. . . and the additional apportionment requirements set forth
by the Supreme Court call[ed] for a redistricting of the entire
state as to both houses of the General Assembly,” Chavis
v. Whitcomb, 305 F. Supp. 1364, 1391 (SD Ind. 1969). Recognizing
“that the federal judiciary functions within a system
of federalism which entrusts the responsibility of legislative
apportionment and districting primarily to the state legislature,”
the District Court afforded the Governor “a reason626
ABBOTT v. PEREZ
Sotomayor, J., dissenting
able opportunity to call a Special Session of the General Assembly
of the State of Indiana so that it may enact legislation
to redistrict the State and reapportion the legislative seats
in the General Assembly in accordance with federal constitutional
requirements and in compliance with [its] opinion.”
Id., at 1392. The District Court gave the State a little over
two months to enact new statutes “to remedy the improper
districting and malapportionment.” Ibid. When the Governor
appealed from that order, this Court dismissed for
want of jurisdiction because “at [the] time no judgment had
been entered and no injunction had been granted or denied.”
403 U. S., at 138, n. 19. The fndings of liability on the merits
and the unequivocal indication that the redistricting and
malapportionment violations had to be remedied were not
enough.
B
Straightforward application of this precedent compels the
conclusion that this Court lacks jurisdiction over these appeals.
Here, Texas appeals from two orders entered by
the three-judge District Court on August 15 and 24, 2017.
Those orders concern the constitutional and statutory challenges
to Texas' State House and federal congressional redistricting
plans, enacted by the Texas Legislature (hereinafter
Legislature) in 2013 (hereinafter the 2013 maps). As relevant
here, the orders concerned Texas House districts in Bell
County (HD54 and HD55), Dallas County (HD103, HD104,
and HD105), Nueces County (HD32 and HD34), and Tarrant
County (HD90), as well as federal congressional districts encompassing
Nueces County (CD27) and parts of Travis
County (CD35). The District Court concluded that plaintiffs
had proved intentional discrimination as to HD54, HD55,
HD103, HD104, HD105, HD32, HD34, and CD27.1 It also
1 The Fourteenth Amendment and § 2 of the Voting Rights Act of 1965
prohibit intentional “vote dilution,” i. e., purposefully enacting “a particular
voting scheme . . . `to minimize or cancel out the voting potential of
Cite as: 585 U. S. 579 (2018) 627
Sotomayor, J., dissenting
concluded that plaintiffs had proved a “results” violation
under § 2 of the Voting Rights Act as to HD32, HD34, and
CD27,2 and had established a racial gerrymandering claim as
to HD90 and CD35.3
Having ruled on the challengers' statutory and constitutional
claims, the District Court stated that all but one of
the “violations must be remedied by either the Texas Legislature
or [the District] Court.” 274 F. Supp. 3d 624, 686
(WD Tex. 2017); see also 267 F. Supp. 3d 750, 795 (WD Tex.
2017).4 With respect to the § 2 results violation concerning
HD32 and HD34, however, the District Court noted that it
had yet to decide “whether § 2 requires a remedy for this
results violation.” Id., at 783, 795. The District Court
then ordered “the [Texas] Offce of the Attorney General [to]
fle a written advisory within three business days stating
whether the Legislature intends to take up redistricting in
an effort to cure these violations and, if so, when the matter
will be considered.” 274 F. Supp. 3d, at 686; see also 267
F. Supp. 3d, at 795. The court went on: “If the Legislature
does not intend to take up redistricting, the [District] Court
will hold a hearing to consider remedial plans” on September
5 and 6, 2017, respecting the congressional and Texas House
districts. 274 F. Supp. 3d, at 686–687; see also 267 F. Supp.
racial or ethnic minorities,' an action disadvantaging voters of a particular
race.” Miller v. Johnson, 515 U. S. 900, 911 (1995) (citations omitted).
2 The § 2 “results” test focuses, as relevant here, on vote dilution accomplished
through cracking or packing, i. e., “the dispersal of [a protected
class of voters] into districts in which they constitute an ineffective minority
of voters or from the concentration of [those voters] into districts
where they constitute an excessive majority.” Thornburg v. Gingles, 478
U. S. 30, 46, n. 11 (1986).
3 The Fourteenth Amendment “limits racial gerrymanders” and “prevents
a State, in the absence of `suffcient justifcation,' from `separating
its citizens into different voting districts on the basis of race.' ” Cooper
v. Harris, 581 U. S. 285, 291 (2017).
4 The various appendixes are abbreviated herein consistent with the majority
opinion. See ante, at 585, n. 1.
628 ABBOTT v. PEREZ
Sotomayor, J., dissenting
3d, at 795. “In preparation for the hearing[s],” the District
Court ordered the parties to confer and to “take immediate
steps to consult with their experts and mapdrawers and prepare”
maps to present at those hearings. 274 F. Supp. 3d,
at 687; 267 F. Supp. 3d, at 795.
The District Court went no further. Though there had
been a determination on the merits that Texas violated both
the Equal Protection Clause and § 2 of the Voting Rights Act
with respect to a number of districts in the 2013 maps, the
District Court did not enjoin use of the 2013 maps for the
upcoming 2018 elections. For instance, with respect to the
congressional map, the District Court explained that its
order “only partially addresse[d]” the challengers' claims, as
it had “bifurcated the remedial phase” from the merits phase.
274 F. Supp. 3d, at 687. Importantly, in denying Texas' motions
for a stay, the District Court took care to make abundantly
clear the scope of its orders: “Although the [District]
Court found violations [in the congressional and Texas House
maps], the [District] Court has not enjoined [their] use for
any upcoming elections.” App. 134a–136a.
That is the end of the inquiry under our precedent, as our
past cases are directly on point. Like in Gunn and Whitcomb,
the District Court issued a ruling on the merits
against the State. Like in Gunn and Whitcomb, the District
Court was clear that those violations required a remedy.
Like in Gunn and Whitcomb, the District Court stayed its
hand and did not enter an injunction, instead allowing the
State an opportunity to remedy the violations. Therefore,
like in Gunn and Whitcomb, this Court lacks jurisdiction
under § 1253 because there is “no order of any kind either
granting or denying an injunction—interlocutory or permanent.”
Gunn, 399 U. S., at 387.5
5 Contrary to what the majority contends, whether Whitcomb involved
an “exceedingly complicated procedural posture” has no effect on whether,
at the time the State frst appealed, the District Court had granted
or denied an injunction for purposes of § 1253 jurisdiction. Ante, at 601,
Cite as: 585 U. S. 579 (2018) 629
Sotomayor, J., dissenting
C
1
Despite this precedent, the majority nonetheless concludes
that our intervention at this early stage is not only authorized,
but mandatory. None of the justifcations that the majority
offers for deviating from our precedent is persuasive.
The majority justifes its jurisdictional overreach by holding
that § 1253 mandates appellate review in this Court if a
three-judge district court order “has the `practical effect' of
granting or denying an injunction.” Ante, at 594. It reasons
that the Court has “previously made clear that where
an order has the `practical effect' of granting or denying an
injunction, it should be treated as such for purposes of appellate
jurisdiction.” Ibid. That reasoning, however, has no
application here. Whereas this Court has applied the “practical
effect” rule in the context of the courts of appeals' appellate
jurisdiction under 28 U. S. C. § 1292(a)(1), it has never
applied it to questions of its own mandatory appellate docket
under § 1253. That explains why the only cases the majority
can round up to support its position concern jurisdiction
n. 14. Nor was the order at issue in Whitcomb less “specifc” or less
“likely to demand compliance” than the orders at issue in these appeals.
Ibid. The District Court in Whitcomb, like here, issued an order on the
merits fnding the State liable and unambiguously holding that a remedy
was required. Chavis v. Whitcomb, 305 F. Supp. 1364, 1391–1392 (SD Ind.
1969). The District Court discussed how the Indiana Legislature might
go about redistricting. Ibid. Also, the orders here were no more “immediate”
than the order in Whitcomb. Ante, at 601, n. 14. As in Whitcomb,
the District Court here frst attempted to defer to the State to redistrict,
and nothing in the record suggests that the court would not have allowed
the Texas Legislature a reasonable amount of time to redistrict had the
State decided to take up the task, as the District Court did in Whitcomb.
To the extent the majority relies on the 3-day deadline contained in the
orders below, that deadline was solely for the Texas attorney general to
inform the District Court whether the Legislature intended to take up
redistricting; it was not a deadline to enact new maps. See infra, at 638–
639. Whitcomb is thus not distinguishable in any relevant respect.
630 ABBOTT v. PEREZ
Sotomayor, J., dissenting
under § 1292(a)(1). Ante, at 594–595 (citing Carson v. American
Brands, Inc., 450 U. S. 79, 83–84 (1981), and Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 287–
288 (1988)).
This distinction matters a great deal. Courts of appeals
generally have jurisdiction over direct appeals from the district
courts. See 15A C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure § 3901, p. 13 (3d ed. 1992)
(“Courts of appeals jurisdiction extends to nearly every action
that might be taken by a district court”). In contrast,
exercising mandatory review over direct appeals in this
Court is a truly “exceptional procedure,” Phillips, 312 U. S.,
at 248, in no small part due to our “necessarily fnite docket,”
16B Wright, Federal Practice and Procedure § 4003, at 19.
Reading § 1253 broadly risks transforming that exceptional
procedure into a routine matter, when our precedent commands
a strict construction precisely so that we can “ `keep
within narrow confnes our appellate docket.' ” Goldstein,
396 U. S., at 478.
Brushing that distinction aside, the majority contends that
“we also construe § 1292(a)(1) `narrowly,' ” and have referred
to the statutes as “ `analogous.' ” Ante, at 595–596. True,
but that is no response to the jurisdictional obstacle of § 1253.
The command from our precedent is not simply one to undertake
the same narrow interpretation as we do for
§ 1292(a)(1). Rather, our “long-established rule” requires
“strict construction” of § 1253, Stainback, 336 U. S., at 378,
so that even where the statutory text could be read to expand
our mandatory appellate docket, this Court will not
adopt that reading if a narrower construction is available,
Goldstein, 396 U. S., at 477–478. That “strict construction”
rule exists for a purpose specifc to this Court: to protect our
“carefully limited appellate jurisdiction.” Board of Regents
of Univ. of Tex. System v. New Left Ed. Project, 404 U. S.
541, 543 (1972). Unlike the courts of appeals, which hear
cases on mandatory jurisdiction regularly, this Court hears
Cite as: 585 U. S. 579 (2018) 631
Sotomayor, J., dissenting
cases on mandatory jurisdiction only rarely. The majority
nowhere grapples with that vital contextual distinction between
§ 1253 and § 1292(a)(1). Nor does the majority acknowledge
that, in interpreting § 1253, this Court has itself
recognized that distinction, noting that “this Court above all
others must limit its review of interlocutory orders.” Goldstein,
396 U. S., at 478 (emphasis added).
2
Looking to escape that pitfall in its reasoning, the majority
turns to the text of the two jurisdictional statutes. But the
text provides no refuge for its position. The majority frst
states that “the relevant language in the two provisions is
nearly identical.” Ante, at 595–596. But whereas § 1253
provides for appeal “from an order granting or denying . . .
an interlocutory or permanent injunction,” § 1292(a)(1) provides
for appeal from “[i]nterlocutory orders . . . granting,
continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions.” It is a stretch,
to say the least, to characterize these provisions as “nearly
identical.” Ante, at 595–596.
Next, the majority contends that § 1253 and § 1292(a)(1)
are “textually interlocked,” ante, at 596, in that § 1292(a)(1)
provides for appeal to the courts of appeals, “except where
a direct review may be had in the Supreme Court.” In its
view, this demonstrates that the “practical effect” rule must
apply under § 1253. The majority reasons that “the consequences
would be unfortunate and strange” otherwise, imagining
that an order from a three-judge district court that had
the practical effect of an injunction but did not invoke § 1253
jurisdiction would “appear to be appealable to one of the
courts of appeals” in light of the “excep[t]” clause, a result
“Congress surely did not intend” given that it took “pains to
provide for review in this Court, and not in the courts of
appeals, of three-judge court orders granting injunctions.”
Ante, at 596.
632 ABBOTT v. PEREZ
Sotomayor, J., dissenting
This reasoning rests on a mistaken premise. Congress
did not provide for review of every three-judge court order
in this Court. It provided for review of only certain narrow
categories of orders, i. e., those granting or denying an injunction.
There is nothing “unfortunate” or “strange” about
the proposition that orders from a three-judge court that do
not fall within these narrow categories of actions made directly
appealable to this Court can be appealed only to the
courts of appeals. In fact, this Court itself has recognized
as much. See, e. g., Rockefeller v. Catholic Medical Center
of Brooklyn & Queens, Inc., 397 U. S. 820 (1970) (per curiam)
(“The judgment appealed from does not include an order
granting or denying an interlocutory or permanent injunction
and is therefore not appealable to this Court under 28
U. S. C. § 1253. The judgment of the District Court is vacated
and the case is remanded to that court so that it may
enter a fresh decree from which timely appeal may be taken
to the Court of Appeals” (citation omitted)); see also Mitchell
v. Donovan, 398 U. S. 427, 431–432 (1970) (per curiam) (concluding
that “this Court lacks jurisdiction of the appeal”
under § 1253 and directing “the District Court [to] enter a
fresh order . . . thus affording the appellants an opportunity
to take a timely appeal to the Court of Appeals”).6 And to
the extent a party prematurely appeals to the court of appeals
an order that would otherwise fall within § 1253, e. g.,
6 The majority opinion attempts to distinguish Donovan and Rockefeller
by stating that the decisions there were “based on the plain language of
§ 1253, which says nothing about orders granting or denying declaratory
judgments.” Ante, at 596–597, n. 11. But of course, “the plain language
of § 1253” also “says nothing about” noninjunctive orders, like the ones
issued by the District Court below. Notably, the order at issue in Rockefeller
looked similar to the orders on appeal here: There, the three-judge
District Court declined to enter an injunction only because “the state
ha[d] shown a desire to comply with applicable federal requirements,” but
its order nevertheless clearly resolved the merits against the State. See
Catholic Medical Center of Brooklyn & Queens, Inc. v. Rockefeller, 305
F. Supp. 1268, 1271 (EDNY 1969).
Cite as: 585 U. S. 579 (2018) 633
Sotomayor, J., dissenting
if Texas had appealed the August 15 and 24 orders to the
Court of Appeals for the Fifth Circuit, that court surely will
be more than capable of identifying as much and instructing
the party to wait for an actual injunction before bringing an
appeal to this Court.
3
The majority attempts to bolster its jurisdictional conclusion
with a passing reference to the “valuable purpose”
served by the “ `practical effect' ” rule, i. e., preventing district
courts from manipulating proceedings by avoiding labeling
their orders as “ `injunction[s].' ” Ante, at 595. Notably,
the majority cites no evidence for the proposition that
district courts are engaging in any kind of manipulation.
Nor is there any indication that the District Court here
attempted to manipulate the proceedings by shielding its
orders from appellate review. Instead, the District Court
carefully adhered to a common practice in cases implicating
important state interests, staying its hand as to the remedy
to allow the State an opportunity to act, as happened in
Gunn and Whitcomb.
More important, the majority ignores the “valuable purposes”
served by the longstanding rule requiring strict
construction of § 1253. Not only does it comply with the
congressional command to “ `keep within narrow confnes our
appellate docket,' ” but without strict enforcement of the requirement
that an order grant or deny an injunction, “it is
simply not possible to know with any certainty what the
court has decided.” Gunn, 399 U. S., at 387–388. Such
clarity “is absolutely vital in a case where a federal court is
asked to nullify a law duly enacted by a sovereign State.”
Id., at 389. Orders coming to this Court on direct appeal
under the “practical effect” rule will more often than not
lack that clarity.
In these cases, for instance, what does the majority read
the “practical effect” of the orders to have been with respect
to HD32 and HD34? The District Court held that the chal634
ABBOTT v. PEREZ
Sotomayor, J., dissenting
lengers had “not proven that § 2 requires breaking the
County Line Rule” in the Texas Constitution, Art. III, but
that “§ 2 could require” drawing two majority-HCVAP7 districts.
267 F. Supp. 3d, at 783, 795. Does the majority read
that to mean that the § 2 results violation could potentially
go without a remedy? If so, there would have been no obstacle
to use of the 2013 maps for those districts even after
a remedial phase. Or does the majority read that to mean
that the challengers still had more to show before the District
Court “would” redraw the districts that § 2 “could”
require to be redrawn? And what is the effect of the conclusion
respecting the County Line Rule on the potential remedy
for the intentional vote dilution holding as to HD32 and
HD34? The majority conveniently avoids confronting this
lack of clarity by ignoring the relevant record, instead stating
without explanation that it believes “it clear that the
District Court effectively enjoined use of these districts as
currently confgured.” Ante, at 601, n. 15. But it cannot
escape the reality that its rule will “needlessly complicate
appellate review,” ante, at 597, given that “it is simply not
possible [absent an injunction] to know with any certainty
what the court has decided,” Gunn, 399 U. S., at 388.
I do not disagree that “lack of specifcity in an injunctive
order would [not] alone deprive the Court of jurisdiction
under § 1253.” Id., at 389, n. 4; see also ante, at 598 (quoting
Gunn). “But the absence of any semblance of effort by the
District Court to comply with [the specifcity required of injunctive
orders under the Federal Rules] makes clear that
the court did not think its [orders] constituted an order granting
an injunction.” Gunn, 399 U. S., at 389, n. 4. If any
doubt remained as to the effect of the orders here, moreover,
the District Court explicitly assured the parties that, even
though it had found violations, it was not enjoining use of
the 2013 maps for the upcoming elections. App. 134a–136a.
7 “HCVAP” stands for Hispanic citizen voting age population.
Cite as: 585 U. S. 579 (2018) 635
Sotomayor, J., dissenting
Finally, it is axiomatic that “administrative simplicity is a
major virtue in a jurisdictional statute.” Hertz Corp. v.
Friend, 559 U. S. 77, 94 (2010).
“Complex jurisdictional tests complicate a case . . . .
Complex tests produce appeals and reversals, [and] encourage
gamesmanship . . . . Judicial resources too are
at stake [as] courts beneft from straightforward rules
under which they can readily assure themselves of
their power to hear a case. Simple jurisdictional rules
also promote greater predictability.” Ibid. (citations
omitted).
Simple is thus the name of the game when it comes to jurisdictional
rules. The rule in the majority opinion is anything
but. Although the majority claims that a mere “fnding on
liability cannot be appealed unless an injunction is granted
or denied,” ante, at 602, the rule it embraces today makes it
hard to understand when a fnding on liability would not be
read, as the majority does here, as having the “practical effect”
of an injunction. It is a worrisome prospect that, after
today, whenever a three-judge district court expresses that
a statutory or constitutional violation must be remedied, the
party held liable will straightaway fle an appeal in this
Court and assert jurisdiction under § 1253, even where the
district court is clear that no injunction has issued.8
8 The majority guarantees that there is “no reason to fear such a food”
of appeals from three-judge district court orders because “appeals from
[orders expressly enjoining redistricting plans] have not overwhelmed our
docket.” Ante, at 602. But of course, its jurisdictional ruling applies to
all § 1253 cases, not just those involving redistricting. The majority also
makes much of the fact that only “two cases (Gunn and Whitcomb) decided
during the past half-century” have involved the scenario at issue here,
i. e., an effort to invoke our mandatory jurisdiction to review “a threejudge
court order holding a state statute unconstitutional but declining to
issue an injunction.” Ante, at 602, n. 16. The majority never stops to
consider, however, that one reason so few cases have come to the Court
in this posture may be that Gunn and Whitcomb drew clear jurisdictional
636 ABBOTT v. PEREZ
Sotomayor, J., dissenting
The majority opinion purports to add a limit by distinguishing
between unappealable orders that fnd a plan “unlawful
long before the next scheduled election” or “very close
to the election date,” and those (presumably) appealable orders
that are entered neither “long before” nor “very close”
to the next election. Ante, at 602.9 What does that even
mean? The orders at issue here were entered about 15
months before the 2018 elections, and according to the majority
fall within the not “long before” but not “very close” appealable
range. Why this is so, however, the majority never
says. Without any defnitions for its boundary posts, courts
will be left to wonder: What about orders entered 17 or 18
months before an election? Are those considered “long before”
so they would be unappealable? And are orders entered
14, 13, or 12 months before the election similarly unappealable
because they were entered “very close” to the
election date? And what does the majority mean by “the
election date”? Does that include primaries? What about
registration deadlines, or ballot-printing deadlines? It is
not uncommon for there to be, at any given time, multiple
impending deadlines relating to an upcoming election.
Thinking through the many variations of jurisdictional disputes
that will arise over the years following this novel reading
of § 1253 should be enough to stop the majority from
rewriting our long established jurisprudence in this area.
Af ter today, our mandatory appellate docket will be
fooded by unhappy litigants in three-judge district court
cases, demanding our review. Given the lack of predictabillines
that litigants easily understood—the same clear lines the majority
erases today.
9 The majority believes these “long before” and “very close” limits guide
district courts' determinations about whether to enter an injunction.
Ante, at 602. Presumably the majority would resort to the same indeterminate
limits in determining whether, in its view, a noninjunctive order
had the “practical effect” of an injunction such that it would be justifed
to accept an appeal under § 1253.
Cite as: 585 U. S. 579 (2018) 637
Sotomayor, J., dissenting
ity, the rule will incentivize appeals and “encourage gamesmanship.”
Hertz Corp., 559 U. S., at 94. The Court will no
doubt regret the day it opened its courthouse doors to such
time-consuming and needless manipulation of its docket.
D
Even if the majority were correct to import the “practical
effect” rule into the § 1253 context, moreover, that would still
not justify the Court's premature intervention in these appeals
for at least two reasons. First, while taking from Carson
the “practical effect” rule it likes, the majority gives
short shrift to the second half of that case, in which the
Court was explicit that “[u]nless a litigant can show that an
interlocutory order . . . might have a `serious, perhaps irreparable,
consequence,' and that the order can be `effectually
challenged' only by immediate appeal, the general congressional
policy against piecemeal review will preclude interlocutory
appeal.” 450 U. S., at 84. Texas has made no showing
of a “serious, perhaps irreparable consequence” requiring
our immediate intervention, nor has Texas shown that the
orders could not be “effectually challenged” after the remedial
stage was completed. In fact, when Texas sought a stay
of those orders before this Court, the 2018 elections were
more than a year away. For the majority, however, it is
enough that the District Court found the Texas redistricting
maps to be in violation of federal law. Ante, at 602–603.
That cursory application of Carson, in particular whether the
injunctions the majority reads into the August 15 and 24
orders could be “effectually challenged” absent immediate
appeal to this Court, deprives that limit to our jurisdiction
of much of its meaning when assessing Texas' request for
our intervention in these cases. Nothing in our precedent
supports that truncated approach. And in any event, if
Texas wanted review of the orders after any injunction was
entered by the District Court, it could have asked this Court
for an emergency stay.
638 ABBOTT v. PEREZ
Sotomayor, J., dissenting
Second, the August 15 and 24 orders at issue here simply
did not have the “practical effect” of enjoining Texas' use of
the 2013 maps. The majority thinks otherwise in part because
the District Court noted that the violations “ `must be
remedied.' ” Ante, at 598. In addition, the majority believes
that “Texas had reason to fear that if it tried to conduct
elections under plans that the court had found to be
racially discriminatory, the court would infer an evil motive
and perhaps subject the State once again to the strictures of
preclearance under § 3(c) of the Voting Rights Act.” Ante,
at 599–600. But the majority forgets that the District
Court made explicit that “[a]lthough [it] found violations [in
the 2013 maps], [it] ha[d] not enjoined [their] use for any
upcoming elections.” App. 134a–136a. That the District
Court requested the Texas attorney general to advise it,
within “three business days,” whether “the Legislature intends
to take up redistricting in an effort to cure [the] violations,”
274 F. Supp. 3d, at 686; 267 F. Supp. 3d, at 795, does
not undermine that unequivocal statement. Nothing in that
language indicates that the District Court required the Legislature
to “redraw both maps immediately” or else “the
court would do so itself.” Brief for Appellants 20 (emphasis
in original). Instead, recognizing “that the federal judiciary
functions within a system of federalism which entrusts the
responsibility of legislative . . . districting primarily to the
state legislature,” Whitcomb, 305 F. Supp., at 1392, the District
Court gave Texas an opportunity to involve its Legislature
and asked for a simple statement of intent so that the
court could manage its docket accordingly. This request for
a statement of intent, which was necessary for the District
Court to manage its own docket, does not transform the orders
into injunctions.
As to the second point, if Texas had any “fear” regarding
the use of its maps, despite having been explicitly told that
the maps were not enjoined, that would still not be enough.
This Court recognized in Gunn that the State in that case,
Cite as: 585 U. S. 579 (2018) 639
Sotomayor, J., dissenting
faced with the order declaring its statute unconstitutional,
“would no doubt hesitate long before disregarding it.” 399
U. S., at 390. That hesitation was not enough in Gunn to
magically transform an order into an injunction for purposes
of § 1253, and nothing about these cases justifes the majority
taking out its wand today. Whatever “fear” Texas had does
not transform the August 15 and 24 orders into injunctions.
And absent an injunction, this Court lacks jurisdiction over
these appeals. The cases should thus be dismissed.
II
Having rewritten the limits of § 1253, the majority moves
to the merits. There again the Court goes astray. It asserts
that the District Court legally erred when it purportedly
shifted the burden of proof and “required the State to
show that the 2013 Legislature somehow purged the `taint'
that the court attributed to the defunct and never-used plans
enacted by a prior legislature in 2011.” Ante, at 603. But
that holding ignores the substantial amount of evidence of
Texas' discriminatory intent, and indulges Texas' warped
reading of the legal analysis and factual record below.10
A
Before delving into the content of the August 15 and 24
orders, a quick recap of the rather convoluted history of
these cases is useful. In 2011, the Texas Legislature redrew
its electoral districts. Various plaintiff groups challenged
the 2011 maps under § 2 of the Voting Rights Act and the
Fourteenth Amendment, and those lawsuits were consolidated
before the three-judge District Court below pursuant
to 28 U. S. C. § 2284(a). Because Texas then was subject to
preclearance under § 5 of the Voting Rights Act, the 2011
10 Because the Court reaches the merits of these appeals despite lacking
jurisdiction, this dissent addresses that portion of the majority opinion
as well.
640 ABBOTT v. PEREZ
Sotomayor, J., dissenting
maps did not take effect immediately, and Texas fled a declaratory
action in the District Court for the District of Columbia
to obtain preclearance.
“Faced with impending election deadlines and unprecleared
plans that could not be used in the [2012] election,
[the District] Court was faced with the `unwelcome obligation'
of implementing interim plans so that the primaries
could proceed.” 274 F. Supp. 3d, at 632. In January 2012,
this Court vacated the frst iteration of those interim maps
in Perry v. Perez, 565 U. S. 388, 394–395 (2012) (per curiam),
fnding that the District Court failed to afford suffcient deference
to the Legislature. In February 2012, the District
Court issued more deferential interim plans, but noted that
its analysis had been expedited and curtailed, and that it had
only made preliminary conclusions that might be revised on
full consideration. C. J. S. 367a–424a; H. J. S. 300a–315a.
In August 2012, the D. C. District Court denied preclearance
of the 2011 maps. Texas v. United States, 887 F. Supp.
2d 133 (2012). It concluded that the federal congressional
map had “retrogressive effect” and “was enacted with discriminatory
intent,” id., at 159, 161, and that the State House
map was retrogressive and that “the full record strongly
suggests that the retrogressive effect . . . may not have been
accidental,” id., at 178. Texas appealed, and the case was
eventually dismissed following Shelby County v. Holder, 570
U. S. 529 (2013) (holding unconstitutional the formula used
to subject States to the preclearance requirement).
In June 2013, the Texas Governor called a special legislative
session, and that same month the Legislature adopted
the 2012 interim maps as the permanent maps for the State.
The Legislature made small changes to the maps, including
redrawing the lines in HD90, but the districts at issue in
these appeals all remained materially unchanged from the
2011 maps.
The District Court in these cases denied Texas' motion to
dismiss the challenges to the 2011 maps, and the challengers
Cite as: 585 U. S. 579 (2018) 641
Sotomayor, J., dissenting
amended their complaints to assert claims respecting the
2013 maps. In April and May 2017, the District Court held
that districts in Texas' 2011 maps violated § 2 and the Fourteenth
Amendment. The August 15 and 24 orders respecting
the 2013 maps followed.
B
The majority believes that, in analyzing the 2013 maps, the
District Court erroneously “attributed [the] same [discriminatory]
intent [harbored by the 2011 Legislature] to the 2013
Legislature” and required the 2013 Legislature to purge that
taint. Ante, at 592. The District Court did no such thing.
It engaged in a painstaking analysis of discriminatory intent
under Arlington Heights v. Metropolitan Housing Development
Corp., 429 U. S. 252 (1977), which is critical to understanding
why, as explained in Part II–D, infra, the District
Court did not improperly presume that the Legislature acted
with discriminatory intent.
Under Arlington Heights, “in determining whether racially
discriminatory intent existed,” this Court considers
“circumstantial and direct evidence” of: (1) the discriminatory
“impact of the offcial action,” (2) the “historical background,”
(3) the “specifc sequence of events leading up to
the challenged decision,” (4) departures from procedures or
substance, and (5) the “legislative or administrative history,”
including any “contemporary statements” of the lawmakers.
429 U. S., at 266–268. Although this analysis must start
from a strong “presumption of good faith,” Miller v. Johnson,
515 U. S. 900, 916 (1995), a court must not overlook the
relevant facts. This Court reviews the “fndings of fact”
made by the District Court, including those respecting legislative
motivations, “only for clear error.” Cooper v. Harris,
581 U. S. 285, 293 (2017); see also Anderson v. Bessemer City,
470 U. S. 564, 573 (1985). The Court therefore “may not
reverse just because we `would have decided the [matter]
differently.' . . . A fnding that is `plausible' in light of the
642 ABBOTT v. PEREZ
Sotomayor, J., dissenting
full record—even if another is equally or more so—must govern.”
Harris, 581 U. S., at 293.
The District Court followed the guidance in Arlington
Heights virtually to a tee, and its factual fndings are more
than “plausible” in light of the record. To start, there is no
question as to the discriminatory impact of the 2013 plans,
as the “specifc portions of the 2011 plans that [the District
Court] found to be discriminatory or unconstitutional racial
gerrymanders continue unchanged in the 2013 plans, their
harmful effects `continu[ing] to this day.' ” 274 F. Supp. 3d,
at 649 (alteration in original). Texas, moreover, has a long
“history of discrimination” against minority voters. Id., at
648, n. 37. “In the last four decades, Texas has found itself
in court every redistricting cycle, and each time it has lost.”
Texas, 887 F. Supp. 2d, at 161.
There is also ample evidence that the 2013 Legislature
knew of the discrimination that tainted its 2011 maps. “The
2013 plans were enacted by a substantially similar Legislature
with the same leadership only two years after the original
enactment.” 274 F. Supp. 3d, at 648, n. 37. The Legislature
was also well aware that “the D. C. court concluded
that [its 2011] maps were tainted by evidence of discriminatory
purpose,” H. J. S. 443a, and despite the District Court
having warned of the potential that the Voting Rights Act
may require further changes to the maps, “the Legislature
continued its steadfast refusal to consider [that] possibility,”
274 F. Supp. 3d, at 649.
Turning to deliberative process—on which the majority is
singularly focused, to the exclusion of the rest of the factors
analyzed in the orders below, see Part II–D, infra—the District
Court concluded that Texas was just “not truly interested
in fxing any remaining discrimination in the [maps].”
274 F. Supp. 3d, at 651, n. 45. Despite knowing of the discrimination
in its 2011 maps, “the Legislature did not engage
in a deliberative process to ensure that the 2013 plans cured
Cite as: 585 U. S. 579 (2018) 643
Sotomayor, J., dissenting
any taint from the 2011 plans.” 11 Id., at 649. For instance,
Representative Darby, a member of the redistricting committee,
“kept stating that he wanted to be informed of legal
defciencies so he could fx them,” but “he did not himself
seek to have the plan evaluated for defciencies and he willfully
ignored those who pointed out defciencies, continuing
to emphasize that he had thought `from the start' that the
interim plans were fully legal.” Id., at 651, n. 45.12 The
11 The majority is correct that our reference to these fndings in the
District Court orders below is “not just a single slip of the pen.” Ante,
at 606. That is because these fndings form part (though not the whole)
of the comprehensive analysis that led the District Court to conclude that
the 2013 Legislature acted with the specifc intent to further the discrimination
in its 2011 maps. Full consideration of that analysis, as I have
endeavored to do here, requires review of those fndings, and when read
in the context of the full factual record and legal reasoning contained in
the orders below, it is clear that these statements do not come close to
suggesting what Texas and the majority read into them, i. e., that the
District Court somehow shifted the burden of proof to require Texas to
show that it cured the taint from its past maps.
12 The majority again engages in its own factfnding, without reference
to the fact that our review is for clear error only, when it decides that the
District Court was wrong in concluding that Representative Darby willfully
ignored the defciencies in the 2013 maps. The legislative hearing
that the District Court cited, see 274 F. Supp. 3d, at 651, n. 45, shows,
inter alia, that Representative Darby: told certain members of the Legislature
that changes to district lines would not be considered; rejected proposed
amendments where there was disagreement among the impacted
members; rejected an amendment to the legislative fndings that set out
the history underlying the 2011 maps and related court rulings; acknowledged
that the accepted amendments did not address concerns of retrogression
or minority opportunity to elect their preferred candidates; and
dismissed concerns regarding the packing and cracking of minority voters
in, inter alia, HD32, HD34, HD54, and HD55, stating simply that the
2012 court had already rejected the challengers' claims respecting those
districts but without engaging in meaningful discussion of the other legislators'
concerns. See Joint Exh. 17.3, pp. S7–S9, S11, S30–S35, S39–S43,
S53. Instead of addressing what is evident from the 64-page hearing
transcript, the majority fxates on the single fact that Representative
644 ABBOTT v. PEREZ
Sotomayor, J., dissenting
Legislature made no substantive changes to the challenged
districts that were the subject of the 2011 complaints, and
“there is no indication that the Legislature looked to see
whether any discriminatory taint remained in the plans.”
Id., at 649. In fact, the only substantive change that the
Legislature made to the maps was to add more discrimination
in the form of a new racially gerrymandered HD90, as
the majority concedes. Ante, at 620–622.
The absence of a true deliberative process was coupled
with a troubling sequence of events leading to the enactment
of the 2013 maps. Specifcally, “the Legislature pushed the
redistricting bills through quickly in a special session,” 274
F. Supp. 3d, at 649, despite months earlier having been urged
by the Texas attorney general to take on redistricting during
the regular session, id., at 634; see also H. J. S. 440a. By
pushing the bills through a special session, the Legislature
did not have to comply with “a two-thirds rule in the Senate
or a calendar rule in the House,” 274 F. Supp. 3d, at 649,
n. 38, and it avoided the “full public notice and hearing” that
would have allowed “ `meaningful input' from all Texans, including
the minority community,” H. J. S. 444a. In addition,
“necessary resources were not allocated to support a true
deliberative process.” 274 F. Supp. 3d, at 649. For instance,
the House committee “did not have counsel when the
session started.” Ibid., n. 39.
Nor can Texas credibly claim to have understood the 2012
interim orders as having endorsed the legality of its maps so
that adopting them would resolve the challengers' com-
Darby accepted an amendment for the redrawing of the new (racially gerrymandered)
HD90, believing that this fact somehow erases or outweighs
all the evidence in the record showing that Representative Darby was not
interested in addressing concerns regarding the interim plans. Ante, at
611–612, and n. 24. Even if Representative Darby was in fact responsive
to minority concerns regarding the composition of HD90—which the record
contradicts, see 267 F. Supp. 3d, at 791, 793—that does not undermine
the weight of all of the evidence in the record regarding his intent with
respect to the enactment of the 2013 maps as a whole.
Cite as: 585 U. S. 579 (2018) 645
Sotomayor, J., dissenting
plaints. In its 2012 interim orders, “the [District] Court
clearly warned that its preliminary conclusions . . . were not
based on a full examination of the record or the governing
law and were subject to revision” “given the severe time
constraints . . . at the time” the orders were adopted. Id.,
at 650. The District Court also explained that the “claims
presented . . . involve diffcult and unsettled legal issues as
well as numerous factual disputes.” C. J. S. 367a. During
the redistricting hearings, chief legislative counsel for the
Texas Legislative Council in 2013, Jeff Archer, advised the
Legislature that the District Court “ `had not made full determinations,
. . . had not made fact fndings on every issue,
had not thoroughly analyzed all the evidence,' ” and had
“ `made it explicitly clear that this was an interim plan to
address basically frst impression of voting rights issues.' ”
274 F. Supp. 3d, at 650 (alterations in original); see also App.
441a–442a (testimony that interim plans were “impromptu”
and “preliminary” and that the District Court “disclaimed
making fnal determinations”). Archer explained that although
the Legislature had “ `put to bed' ” challenges regarding
“ `those issues that the [District] Court identifed so far,' ”
it had not “ `put the rest to bed.' ” 274 F. Supp. 3d, at 651,
n. 45; see also App. 446a–447a (advising that, “on a realistic
level,” the Legislature had not “removed legal challenges”
and that adopting the interim maps “in no way would inoculate
the plans”).
There was substantial evidence that the 2013 Legislature
instead adopted the interim plans as part of a “strategy [that]
involved adopting the interim maps, however fawed,” to insulate
(and thus continue to beneft from) the discriminatory
taint of its 2011 maps. 274 F. Supp. 3d, at 651. Texas
hoped that, by adopting the 2012 interim maps, the challengers
“would have no remedy, and [the Legislature] would
maintain the beneft of such discrimination or unconstitutional
effects.” Ibid. That strategy originated with the
Texas attorney general, who was responsible for defending
646 ABBOTT v. PEREZ
Sotomayor, J., dissenting
the State in the redistricting challenges. Id., at 650, and
n. 41. He advised the Legislature that adopting the interim
plans was the “ `best way to avoid further intervention from
federal judges' ” and to “ `insulate [Texas'] redistricting
plans from further legal challenge.' ” Id., at 650 (emphasis
added); see also H. J. S. 443a. The Texas attorney general
also drafted the “legislative fact fndings accompanying the
plans, before the Legislature had engaged in any fact fndings
on the bills,” stating that the 2012 interim plans “complied
`with all federal and state constitutional provisions or
laws applicable to redistricting plans.' ” 274 F. Supp. 3d, at
650, n. 41 (emphasis added). That the legislative factfndings
were predrafted by the attorney defending Texas in
these redistricting challenges—purporting to conclude that
the 2012 interim plans complied with the law, when in fact
the evidence showed that the Legislature did not engage in
a true deliberative process or meaningfully consider evidence
of the legality of the plans so that it could have endorsed
such factfndings—demonstrates that the adoption of
the interim plans was a mere pretext to insulate the discriminatory
benefts of the 2011 plans. That explains why legislators
thought that removal of those factfndings would
“ `gu[t] the bill.' ” Ibid.
In the end, having presided over years of litigation and
seeing frsthand all of the evidence, the District Court
thought it clear that Texas' “strategy involved adopting the
interim maps, however fawed,” so that the challengers
“would have no remedy, and [Texas] would maintain the beneft
of such discrimination and unconstitutional effects.” Id.,
at 651. It is hard to imagine what a more thorough consideration
of the Arlington Heights factors in these cases would
have looked like. Review of the District Court's thorough
inquiry leads to the inescapable conclusion that it did not
err—let alone clearly err—in concluding that the “Legislature
in 2013 intentionally furthered and continued the existing
discrimination in the plans.” 274 F. Supp. 3d, at 652.
Cite as: 585 U. S. 579 (2018) 647
Sotomayor, J., dissenting
C
In contrast to that thorough Arlington Heights inquiry,
the majority engages in a cursory analysis of the record to
justify its conclusion that the evidence “overwhelmingly”
shows that Texas acted with legitimate intent. Ante, at
609–610. Two critical things are conspicuously missing
from its analysis: frst, consideration of the actual factual record
(or most of it, anyway),13 and second, meaningful consideration
of the limits of our review of facts on these appeals.14
The majority frst makes reference to the fact that the
Texas attorney general “advised the Legislature that the
best way to [end the redistricting litigation] was to adopt
the interim, court-issued plans,” a position repeated by the
sponsor of the plans. Ante, at 608. And in its view, it was
reasonable for the Legislature to believe that adopting the
interim plans “might at least reduce objections and thus simplify
and expedite the conclusion of the litigation.” Ante, at
609. The majority also states that “there is no evidence that
the Legislature thought that the plans were invalid.” Ante,
at 609. In reaching those fndings, however, the majority
ignores all of the evidence in the record that demonstrates
that the Legislature was aware of (and ignored) the infrmities
in the maps, that it knew that adopting the interim plans
would not resolve the litigation concerning the disputed dis-
13 The majority contends in passing that its analysis takes account of “all
the relevant evidence in the record,” ante, at 607, and n. 19, apparently
believing that stating it explicitly somehow makes it true. It does not.
The District Court orders in these cases are part of the public record and
readers can therefore judge for themselves.
14 The majority never explains why it believes it appropriate to engage
in what amounts to de novo review of the factual record. Presumably, it
justifes its de novo review with its claim of legal error as to the fnding
of invidious intent. See Part II–D, infra. But even if the majority were
correct that the District Court improperly shifted the burden to the State
to disprove invidious intent, the proper next step would have been to
remand to the District Court for reconsideration of the facts in the frst
instance under the correct legal standard.
648 ABBOTT v. PEREZ
Sotomayor, J., dissenting
tricts, and that it nevertheless moved forward with the bills
as a strategy to “insulate” the discriminatory maps from further
judicial scrutiny and perpetuate the discrimination embedded
in the 2012 interim maps. See Part II–B, supra.
Instead of engaging with the factual record, the majority
opinion sets out its own view of “the situation when the Legislature
adopted the court-approved interim plans.” Ante,
at 610. Under that view, “the Legislature [had] good reason
to believe that the court-approved interim plans were legally
sound,” particularly in light of our remand instructions in
Perry, 565 U. S. 388. Ante, at 610. The majority nowhere
considers, however, the evidence regarding what the Legislature
actually had before it concerning the effect of the interim
orders, including the explicit cautionary statements in
the orders and the repeated warnings of the chief legislative
counsel that the interim plans were preliminary, incomplete,
and impromptu.15 See Part II–B, supra.
The majority fnds little signifcance in the fact that the
Legislature “ `pushed the redistricting bills through quickly
15 The majority is also just fat wrong on its characterization of the interim
orders. With respect to all but two of the challenged State House
districts, the discussion in the interim orders states only in general terms
that the District Court “preliminarily [found] that any [§ 2] and constitutional
challenges do not have a likelihood of success, and any [§ 5] challenges
are insubstantial,” emphasizing the “preliminarily nature of [its]
order.” H. J. S. 303a, 307a–309a. With respect to the congressional districts,
the District Court opined that the “claims are not without merit”
and were “a close call,” but ultimately concluded that the challengers had
not at that time demonstrated a likelihood of success on the merits.
C. J. S. 409a, 419a. The District Court nevertheless emphasized that
there remained “unsettled legal issues as well as numerous factual disputes”
such that the interim map was “not a fnal ruling on the merits of
any claims.” Id., at 367a. It is a stretch to characterize these interim
orders as providing “a careful analysis of all the claims,” ante, at 610,
and borderline disingenuous to state that, despite repeated and explicit
warnings that its rulings were not fnal and subject to change, the District
Court was somehow “reversing its own previous decisions” when it fnally
did render a fnal decision, ante, at 609, n. 22.
Cite as: 585 U. S. 579 (2018) 649
Sotomayor, J., dissenting
in a special session,' ” reasoning that a special session was
needed “because the regular session had ended.” Ante, at
610–611. That of course ignores the evidence that the Legislature
disregarded requests by the Texas attorney general,
months earlier, to take up redistricting during the regular
session, that proceeding through a special session permitted
the Legislature to circumvent procedures that would have
ensured full and adequate consideration, and that resources
were not suffciently allocated to permit considered review
of the plans. See Part II–B, supra.
Finally, the majority sees nothing wrong with the fact that
the Legislature failed “to take into account the problems
with the 2011 plans that the D. C. court identifed in denying
preclearance.” Ante, at 612. It maintains that the purpose
of adopting the interim plans was to “fx the problems identifed
by the D. C. court” and reasons that the interim maps
did just that by modifying any problematic districts. Ibid.
But of course the fnding of discriminatory intent rested not
only on what happened with particular districts. Rather,
the evidence suggested that discriminatory motive permeated
the entire 2011 redistricting process, as the D. C. court
considered that “Texas has found itself in court every redistricting
cycle [in the last four decades], and each time it has
lost”; that “Black and Hispanic members of Congress testifed
at trial that they were excluded completely from the
process of drafting new maps, while the preferences of Anglo
members were frequently solicited and honored”; that the
redistricting committees “released a joint congressional redistricting
proposal for the public to view only after the start
of a special legislative session, and each provided only
seventy-two hours' notice before the sole public hearing on
the proposed plan in each committee”; that minority members
of the Texas Legislature “raised concerns regarding
their exclusion from the drafting process and their inability
to infuence the plan”; and that the Legislature departed
from normal procedure in the “failure to release a redistrict650
ABBOTT v. PEREZ
Sotomayor, J., dissenting
ing proposal during the regular session, the limited time for
review, and the failure to provide counsel with the necessary
election data to evaluate [Voting Rights Act] compliance.”
887 F. Supp. 2d, at 161. The majority also ignores the fndings
of retrogression concerning the previous version of
CD25, which of course are relevant to the challengers' claims
about CD27 and CD35 in this litigation and were not addressed
in the 2012 interim plans. See Part III–A, infra.
That the 2012 interim maps addressed some of the defciencies
identifed by the D. C. court in the preclearance litigation
does not mean that the Legislature in 2013 was free to
wholly disregard the signifcance of other evidence of discrimination
that tainted its 2011 maps and were entrenched
in the 2012 interim maps.
Even had the majority not ignored the factual record, it
still would be wrong in concluding that the District Court
erred in fnding that the 2013 Legislature acted with the intent
to further and beneft from the discrimination in the
2011 maps. In light of the record before this Court, the
fnding of invidious intent is at least more than “ `plausible' ”
and thus “must govern.” Harris, 581 U. S., at 293. The
majority might think that it has a “better view of the facts”
than the District Court did, but “the very premise of clear
error review is that there are often ` two permissible'—
because two `plausible'—`views of the evidence. ' ” Id.,
at 299.
D
The majority resists the weight of all this evidence of
invidious intent not only by disregarding most of it and ignoring
the clear-error posture but also by endorsing Texas'
distorted characterizations of the intent analysis in the orders
below. Specifcally, the majority accepts Texas' argument
that the District Court “reversed the burden of proof”
and “imposed on the State the obligation of proving that the
2013 Legislature had experienced a true `change of heart'
and had `engage[d] in a deliberative process to ensure that
Cite as: 585 U. S. 579 (2018) 651
Sotomayor, J., dissenting
the 2013 plans cured any taint from the 2011 plans.' ” Ante,
at 605 (alteration in original). The District Court did no
such thing, and only a selective reading of the orders below
could support Texas' position.
It is worth noting, as a preliminary matter, that the majority
does not question the relevance of historical discrimination
in assessing present discriminatory intent. Indeed, the
majority leaves undisturbed the longstanding principle recognized
in Arlington Heights that the “ `historical background'
of a legislative enactment is `one evidentiary source'
relevant to the question of intent.” Ante, at 603–604 (quoting
Arlington Heights, 429 U. S., at 267). With respect to these
cases, the majority explicitly acknowledges that, in evaluating
whether the 2013 Legislature acted with discriminatory
purpose, “the intent of the 2011 Legislature [is] relevant”
and “must be weighed together with any other direct and
circumstantial evidence” bearing on intent. Ante, at 607.
If consideration of this “ `historical background' ” factor
means anything in the context of assessing intent of the 2013
Legislature, it at a minimum required the District Court to
assess how the 2013 Legislature addressed the known discrimination
that motivated the drawing of the district lines
that the Legislature was adopting, unchanged, from the 2011
maps. Therefore, the fndings as to whether the 2013 Legislature
engaged in a good-faith effort to address any known
discrimination that tainted its 2011 plans were entirely apposite,
so long as the District Court “weighed [this factor] together
with any other direct and circumstantial evidence”
bearing on the intent question, and so long as the burden
remained on the challengers to establish invidious intent.
Ibid.
The majority faults the District Court for not adequately
engaging in that weighing and giving too “central” a
focus to the historical factor in its intent analysis. Ante,
at 605; see also ibid., n. 18. That alleged “central” focus,
the majority contends, led the District Court to shift the
652 ABBOTT v. PEREZ
Sotomayor, J., dissenting
burden of proof on the intent inquiry away from the challengers,
instead requiring Texas to show that the Legislature
cured its past transgressions. Ante, at 605. Those
conclusions can only be supported if, as Texas and the majority
have done, one engages in a highly selective reading of
the District Court orders.
To begin, entirely absent from the majority opinion is any
reference to the portions of the District Court orders that
unequivocally confrm its understanding that the burden remained
on the challengers to show that the 2013 Legislature
acted with invidious intent. The District Court was explicit
that the challengers bore the burden to “establish their claim
by showing that the Legislature adopted the plans with a
discriminatory purpose, maintained the district lines with
a discriminatory purpose, or intentionally furthered preexisting
intentional discrimination.” 274 F. Supp. 3d, at 646;
see also id., at 645 (discussing Circuit precedent regarding
the showing needed for “a plaintiff [to] meet the purpose
standard”).16
Even when it does look at the actual language of the orders,
the majority picks the few phrases that it believes support
its argument, choosing to disregard the rest. For in-
16 The majority spends some time distinguishing Hunter v. Underwood,
471 U. S. 222 (1985), adamant that it does not support “shifting the burden”
as it purports the District Court did below. Ante, at 604. But the
District Court agreed that Hunter was distinguishable and did not rely on
it to support any sort of burden shifting. As the majority explains,
Hunter involved a state constitutional provision adopted with discriminatory
intent that, despite pruning over the years, the State never repealed.
Ante, at 604 (citing 471 U. S., at 229, 232–233). The District Court discussed
the differences between Hunter and these cases, namely, that
Hunter “did not involve a later reenactment . . . which is what [Texas]
now claims cleanses the plans.” 274 F. Supp. 3d, at 647. It noted the
important distinction that, “ `when a plan is reenacted—as opposed to
merely remaining on the books like the provision in Hunter—the state of
mind of the reenacting body must also be considered.' ” Id., at 648. That
the majority ignores that the District Court did not, as it suggests, rely
on Hunter as controlling is another example of how it conveniently overlooks
the District Court's express legal analysis.
Cite as: 585 U. S. 579 (2018) 653
Sotomayor, J., dissenting
stance, the majority quotes the District Court order as
having required Texas to show that the 2013 Legislature had
a “ `change of heart.' ” Ante, at 605 (quoting 274 F. Supp.
3d, at 649). When that sentence is read in full, however, it
is evident that the District Court was not imposing a “duty
to expiate” the bad intent of the previous Legislature, as the
majority contends, ante, at 605, but instead was describing
what the weighing of the direct and circumstantial evidence
revealed about the motivations of the 2013 Legislature: “The
decision to adopt the interim plans was not a change of heart
concerning the validity of [the challengers'] claims . . .—it
was a litigation strategy designed to insulate the 2011 or
2013 plans from further challenge, regardless of their legal
infrmities.” 274 F. Supp. 3d, at 649–650.
Likewise, the majority quotes the orders as requiring
proof that the Legislature “ `engage[d] in a deliberative process
to ensure that the 2013 plans cured any taint from the
2011 plans.' ” Ante, at 605 (quoting 274 F. Supp. 3d, at 649).
But the District Court did not put the burden on Texas to
make that affrmative showing. Instead, that partial quote
is lifted from a sentence in which the District Court, having
held a trial on these factual issues, concluded that the
challengers had met their burden to show that “the Legislature
did not engage in a deliberative process,” which it
supported later in that paragraph with fndings that the
Legislature “pushed the redistricting bills through quickly
in a special session” without allocating the “necessary resources
. . . to support a true deliberative process.” Id.,
at 649.
The majority fnally asserts that the District Court “drove
the point home” when it “summarized its analysis” as follows:
“ `The discriminatory taint [from the 2011 plans] was not removed
by the Legislature's enactment of the Court's interim
plans, because the Legislature engaged in no deliberative
process to remove any such taint, and in fact intended any
such taint to be maintained but safe from remedy.' ” Ante,
at 605 (quoting 274 F. Supp. 3d, at 686). The majority no
654 ABBOTT v. PEREZ
Sotomayor, J., dissenting
doubt hopes that the reader will focus on the portion of the
sentence in which the District Court concludes that the discriminatory
taint found in the 2011 maps “ `was not removed'
” by the enactment of the interim maps “ `because the
Legislature engaged in no deliberative process to remove
any such taint.' ” Ante, at 605 (quoting 274 F. Supp. 3d, at
686).17 But the majority ignores the import of the remaining
part of the sentence, in which the District Court held
that the Legislature “in fact intended any such taint to
be maintained but be safe from remedy.” Id., at 652; see
also id., at 686. The majority also conveniently leaves out
the sentence that immediately follows: “The Legislature in
2013 intentionally furthered and continued the existing discrimination
in the plans.” Id., at 652. When read in full
and in context, it is clear that the District Court remained
focused on the evidence proving the intent of the 2013 Legislature
to shield its plans from a remedy and thus further
the discrimination, rather than simply presuming invidious
intent from the failure to remove the taint, as the majority
claims.
In selectively reviewing the record below, the majority attempts
to shield itself from the otherwise unavoidable conclusion
that the District Court did not err. If forced to acknowledge
the true scope of the legal analysis in the orders
below, the majority would fnd itself without support for its
insistence that the District Court was singularly focused on
whether the Legislature “removed” past taint. And then
the majority would have to contend with the thorough analysis
of the Arlington Heights factors, Part II–B, supra, that
17 Notably, the majority takes no issue with that frst conclusion, i. e.,
that the enactment of the interim plans does not, on its own, insulate the
2013 plans from challenge. It explicitly notes that the opinion does not
hold that the “2013 [plans] are unassailable because they were previously
adopted on an interim basis by the Texas court,” noting that such a factor
is relevant insofar as it informs the inquiry into the intent of the 2013
Legislature. Ante, at 607.
Cite as: 585 U. S. 579 (2018) 655
Sotomayor, J., dissenting
led the District Court to conclude that the 2013 Legislature
acted with invidious intent.
III
The majority fares no better in its district-by-district
analysis. In line with the theme underlying the rest of its
analysis, the majority opinion overlooks the factual record
and mischaracterizes the bulk of the analysis in the orders
below in concluding that the District Court erred in fnding
a § 2 results violation as to CD27, HD32, and HD34. I frst
address CD27, and then turn to HD32 and HD34.
A
1
To put in context the objections to the District Court's
conclusion regarding CD27, a brief review of the District
Court's factual fndings as to that district is necessary. Before
2011, CD27 was a Latino opportunity district, i. e., a
majority-HCVAP district with an opportunity to elect a
Hispanic-preferred candidate. When the Legislature reconfgured
the district in 2013, it moved Nueces County, a
majority-HCVAP county, into a new Anglo-majority district
to protect an incumbent “who was not the candidate of choice
of those Latino voters” and likely would have been “ousted”
by them absent the redistricting. C. J. S. 191a. The District
Court found that the “placement of Nueces County Hispanics
in an Anglo-majority district ensures that the Anglo
majority usually will defeat the minority-preferred candidate,
given the racially polarized voting in the area.” Id.,
at 189a–190a. It also found that “the political processes are
not equally open to Hispanics” in Texas as a result of its
“history of offcial discrimination touching on the right of
Hispanics to register, vote, and otherwise to participate in
the democratic process [that] is well documented,” and that
“Latinos bear the effects of past discrimination in areas such
as education and employment/income, which hinder their
656 ABBOTT v. PEREZ
Sotomayor, J., dissenting
ability to participate effectively in the political process.”
Id., at 190a–191a. Given those fndings, the District Court
concluded that the newly constituted CD27 “has the effect of
diluting Nueces County Hispanic voters' electoral opportunity.”
Id., at 191a.
Texas nevertheless contended (and maintains here) that
no § 2 results violation existed because only “seven compact
Latino opportunity districts could be drawn in South/West
Texas,” id., at 181a, and that all seven districts already existed
under its maps. To explain how it counted to seven,
Texas pointed to the creation of CD35 as a supposed new
Latino opportunity district that joined Travis County Hispanics
with Hispanics in San Antonio. The District Court
agreed that only seven such districts could be drawn in the
area, but rejected Texas' invocation of CD35 as a defense.
The District Court concluded that because Travis County
“[did] not have Anglo bloc voting,” 274 F. Supp. 3d, at 683,
§ 2 did not require the placement of Travis County Hispanics
in an opportunity district, C. J. S. 176a; see also Thornburg
v. Gingles, 478 U. S. 30, 51 (1986). The District Court found
that Texas had moved Travis County Hispanics from their
pre-2011 district, CD25, to the newly constituted CD35, not
to comply with § 2, but “to use race as a tool for partisan
goals . . . to intentionally destroy an existing district with
signifcant minority population (both African American and
Hispanic) that consistently elected a Democrat (CD25).”
274 F. Supp. 3d, at 683. Thus, it concluded that “CD35 was
an impermissible racial gerrymander because race predominated
in its creation without furthering a compelling state
interest.” Ibid.
Importantly, the District Court concluded that, without
CD35, Texas could have drawn one more Latino opportunity
district in South/West Texas that included Nueces County
Hispanics. C. J. S. 181a; see also id., at 190a (“Plaintiffs
have thus shown that a district could be drawn in which Hispanics,
including Nueces County Hispanics, are suffciently
numerous and geographically compact to constitute a majorCite
as: 585 U. S. 579 (2018) 657
Sotomayor, J., dissenting
ity HCVAP”); id., at 192a (“Numerous maps also demonstrated
that accommodating the § 2 rights of all or most
Nueces County Hispanic voters would not compromise the
§ 2 rights of any other voters, and in fact including it substantially
accommodates the § 2 rights of Hispanic voters in
South/West Texas”). Indeed, “[p]lans were submitted during
the legislative session and during this litigation that
showed that seven compact districts could be drawn that included
all or most Nueces County Hispanic voters but not
Travis County voters.” Id., at 181a, n. 47.
2
Nothing in the record or the parties' briefs suggests that
the District Court clearly erred in these fndings of fact,
which unambiguously support its conclusion that there is a
§ 2 results violation with respect to CD27. Nevertheless,
the majority offers two reasons for reversing that conclusion.
First, the majority contends that the District Court erred
because “in evaluating the presence of majority bloc voting
in CD35,” it “looked at only one, small part of the district,
the portion that falls within Travis County.” Ante, at 616.
It cites to Bethune-Hill v. Virginia State Bd. of Elections,
580 U. S. 178, 192 (2017), an equal protection racial gerrymandering
case, for the proposition “that redistricting analysis
must take place at the district level.” Ante, at 616. According
to the majority, then, the District Court should have
looked at the existence of majority bloc voting in CD35 as a
whole after the 2011 redistricting.
But the majority confuses the relevant inquiry, as well as
the relevant timeline. The particular § 2 question here does
not concern the status of Travis County Latinos in the newly
constituted CD35 after the 2011 redistricting. Rather, it
concerns the status of Travis County Latinos in the old
CD25, prior to the 2011 redistricting. That is because the
challengers' § 2 claim concerns the choices before the Legislature
at the time of the 2011 redistricting, when it was
deciding which Latinos in Southwest Texas to place in the
658 ABBOTT v. PEREZ
Sotomayor, J., dissenting
new opportunity district to be created in that area of the
State. The Legislature chose to include Travis County Latinos
in an opportunity district at the expense of the Nueces
County Latinos, who were instead moved into a majority-
Anglo district. So the question is whether, knowing that
Nueces County Latinos indisputably had a § 2 right, the Legislature's
choice was nevertheless justified because the
Travis County Latinos also had a § 2 right that needed to be
accommodated. In other words, did the Legislature actually
create a new § 2 opportunity district for persons with a
§ 2 right, or did it simply move people without a § 2 right
into a new district and just call it an opportunity district?
To answer that question, the status of Travis County Latinos
in 2011 is the only thing that matters, and the District Court
thus correctly focused its inquiry on whether bloc voting existed
in Travis County prior to the 2011 redistricting, such
that Travis County Latinos could be found to have a § 2
right. Whether the newly constituted CD35 now qualifes
as a § 2 opportunity district—an inquiry that would, as the
majority suggests, call for districtwide consideration—is beside
the point.
Second, the majority reasons that “the 2013 Legislature
had `good reasons' to believe that [CD35] was a viable Latino
opportunity district that satisfied the Gingles factors. ”
Ante, at 615. For this, the majority cites to the fact that
the district “was based on a concept proposed by MALDEF”
and that one group of plaintiffs “argued that the district
[was] mandated by § 2,” and vaguely suggests that, contrary
to the District Court's fnding, “there is ample evidence” of
majority bloc voting in CD35. Ibid.18
The majority forgets, yet again, that we review factual
fndings for clear error. Harris, 581 U. S., at 293. Indeed,
18 The majority also believes that the interim orders gave the Legislature
cover with respect to CD35, ante, at 616, forgetting that the District
Court explicitly and repeatedly warned the parties that its interim orders
did not resolve all factual and legal disputes in the cases.
Cite as: 585 U. S. 579 (2018) 659
Sotomayor, J., dissenting
its analysis is too cursory even for de novo review. The majority
does not meaningfully engage with the full factual record
below. Instead, it looks only to the handful of favorable
facts cited in Texas' briefs. Compare Brief for Appellants
46 with ante, at 616–617. Had the majority considered the
full record, it could only have found that the District Court
cited ample evidence in support of its conclusion that the
Legislature had no basis for believing that § 2 required its
drawing of CD35. In fact, the District Court noted that
Texas in 2011 “actually asserted that CD35 is not required
by § 2,” C. J. S. 174a, n. 40, that the main plan architect testifed
that he was not sure whether § 2 required drawing the
district, and that testimony at trial showed that the district
was drawn because, on paper, it would fulfll the requirement
of being majority-HCVAP while providing Democrats only
one new district, and “not because all of the Gingles factors
were satisfed,” id., at 179a, n. 45. The District Court also
concluded that “there is no evidence that any member of
the Legislature . . . had any basis in evidence for believing
that CD35 was required by § 2 other than its HCVAPmajority
status.” Ibid.
Had the majority properly framed the inquiry and applied
the clear-error standard to the full factual record, it could not
convincingly dispute the existence of a § 2 results violation
as to CD27. Texas diluted the voting strength of Nueces
County Latinos by transforming a minority-opportunity district
into a majority-Anglo district. The State cannot defend
that result by pointing to CD35, because its “creation of
an opportunity district for [Travis County Latinos] without
a § 2 right offers no excuse for its failure to provide an opportunity
district for [Nueces County Latinos] with a § 2 right.”
League of United Latin American Citizens v. Perry, 548
U. S. 399, 430 (2006) (LULAC).19
19 It is worth noting that Texas' efforts to suppress the voting strength
of minority voters in Nueces County eerily mirror the actions this Court
invalidated as a violation of § 2 in LULAC, 548 U. S. 399. Like in LULAC,
660 ABBOTT v. PEREZ
Sotomayor, J., dissenting
B
1
I turn now to HD32 and HD34. Before the 2011 redistricting,
Nueces County had within it two Latino opportunity
districts and part of one Anglo-represented district.
267 F. Supp. 3d, at 767. Due to slower population growth
refected in the 2010 census, however, Nueces County was
entitled to have within it only two districts. Accordingly,
during the 2011 redistricting, the Legislature opted to “eliminate
one of the Latino opportunity districts . . . and draw
two districts wholly within Nueces County—one strongly
Latino (HD34) and one a safe Anglo Republican seat (HD32)
to protect [an] incumbent.” Ibid. “Based on an analysis of
the Gingles requirements and the totality of the circumstances,”
however, the District Court found that the Legislature
could have drawn two compact minority districts in
Nueces County. Id., at 780. Namely, the evidence demonstrated
that it was possible to draw a map with “two districts
with greater than 50% HCVAP,” that “Latinos in Nueces
County are highly cohesive, and that Anglos vote as a block
usually to defeat minority preferred candidates.” Id., at
777–778.
“a majority-Hispanic district that would likely have elected the Hispanicpreferred
candidate was fipped into an Anglo-majority district to protect
a candidate that was not preferred by the Hispanic voters.” C. J. S. 182a;
see also LULAC, 548 U. S., at 427–429. And like in LULAC, Texas attempted
to defend that curtailment of minority voters' rights by pointing
to the creation of another supposed opportunity district. 274 F. Supp. 3d,
at 684–685; LULAC, 548 U. S., at 429. In fnding a § 2 results violation,
the Court concluded that the “vote dilution of a group that was beginning
to . . . overcome prior electoral discrimination . . . cannot be sustained.”
Id., at 442. The Court also rejected Texas' defense, holding that its “creation
of an opportunity district for those without a § 2 right offers no
excuse for its failure to provide an opportunity district for those with a
§ 2 right.” Id., at 430. In line with LULAC, the Court should hold that
Texas has once again contravened § 2 in its drawing of CD27.
Cite as: 585 U. S. 579 (2018) 661
Sotomayor, J., dissenting
The District Court then considered two proposed confgurations
for those districts: one with two HCVAP-majority
districts located wholly within Nueces County, and another
that required breaking the County Line Rule. Id., at 777.
The challengers preferred the latter confguration because,
according to their expert, “an exogenous election index” revealed
that the two HCVAP-majority districts wholly within
Nueces County did “not perform suffciently.” Id., at 778.
The District Court did not accept that expert's assessment
at face value. Instead, it explained that “an exogenous election
index alone will not determine opportunity,” and so
evaluated the expert testing and ample other evidence and
ultimately concluded that the challengers had “not adequately
demonstrated that they lack equal opportunity in [an
alternative] confguration . . . such that a county line break
is necessary.” Id., at 778, 781. Thus, although it found that
“two HCVAP-districts could have been drawn that would
provide Hispanics with equal electoral opportunity, and that
§ 2 could require those two districts,” because § 2 did not
require the challengers' requested remedy (i. e., breaking the
County Line Rule), the District Court had to “consider
whether § 2 requires a remedy” and directed the challengers
to “consider their preferred confguration for the remedy
stage” that was to follow (before Texas prematurely appealed).
Id., at 783.
2
The majority purports to accept these factual fndings and
contends that they “show that [HD32 and HD34] do not violate
§ 2.” Ante, at 617. Specifcally, the majority points to
the fact that the challengers' “own expert determined that
it was not possible to divide Nueces County into more than
one performing Latino district” without breaking the
County Line Rule, a remedy the District Court concluded
was not required by § 2. Ibid. (emphasis in original). “So
if Texas could not create two performing districts in
Nueces County and did not have to break county lines,” the
662 ABBOTT v. PEREZ
Sotomayor, J., dissenting
majority reasons, “the logical result is that Texas did not
dilute the Latino vote.” Ibid. (emphasis in original). In its
view, a districting decision cannot be said to dilute the votes
of minority voters “if the alternative to the districting decision
at issue would not enhance the ability of minority voters
to elect the candidates of their choice.” Ibid.
At bottom, then, the majority rests its conclusion on one
aspect of the challengers' expert evidence, i. e., that it was
not possible to place within Nueces County more than one
performing Latino district without breaking county lines.
The majority acknowledges the District Court's fnding that
the challengers had “ `failed to show' that two majority-
Latino districts in Nueces County would not perform,” but
waves away that fnding by concluding that the District
Court “twisted the burden of proof beyond recognition” by
“suggest[ing] that a plaintiff might succeed on its § 2 claim
because its expert failed to show that the necessary factual
basis for the claim could not be established.” Ante, at 618.
That conclusion is only possible because the majority closes
its eyes to signifcant evidence in the record and misrepresents
the District Court's conclusion about the potential
for creating two performing Latino-majority districts in
Nueces County.
The majority, of course, is right on one thing: The District
Court recognized that the challengers' expert opined that
the two HCVAP-majority districts would not perform based
on the results of an exogenous election index. See ante, at
617. But the majority ignores that the District Court rejected
that expert's conclusion because “the results of an exogenous
election index alone will not determine opportunity,”
as “[s]uch indices often do not mirror endogenous
election performance.” 267 F. Supp. 3d, at 778. Instead of
“just relying on an exogenous election index to measure opportunity,”
the District Court “conduct[ed] an intensely local
appraisal to determine whether real electoral opportunity
exists.” Ibid.
Cite as: 585 U. S. 579 (2018) 663
Sotomayor, J., dissenting
That “intensely local appraisal” resulted in a lengthy
analysis that considered, among other facts: that Texas had a
long “history of voting-related discrimination”; that “racially
polarized voting exist[s] in Nueces County and its house district
elections, the level is high, and the high degree of Anglo
bloc voting plays a role in the defeat of Hispanic candidates”;
“that Hispanics, including in Nueces County, suffer a `continuing
pattern of disadvantage' relative to non-Hispanics”; that
population growth in the county “was [driven by] Hispanic
growth” and that the “HCVAP continues to climb”; that the
districts “include demographic distributions strongly favoring
Hispanic voters,” and that the “numbers translate into a
signifcant advantage in house district elections”; and that
data analysis showed that “performance for Latinos increased
signifcantly in presidential election years,” which
“indicates that the districts provide potential to elect.” Id.,
at 778–782.20
The District Court's focus on the history of the county as
well as its potential performance going forward was an important
point of departure from the challengers' expert, who
considered only the former. See LULAC, 548 U. S., at 442
(noting “a signifcant distinction” in analysis of what district
performance “ `had been' ” compared to “how it would operate
today . . . given the growing Latino political power in
the district”). The District Court also found the expert's
analysis lacking in other key respects. Namely, the District
Court noted that one of the majority-HCVAP districts “provides
opportunity, at least in presidential election years”;
20 The majority contends that the District Court did not engage in a
suffciently local analysis because it cited to the statewide history of discrimination
against minority voters, the continuing disadvantage of Latino
voters, and racially polarized voting. Ante, at 619. The majority not
only misapprehends the importance of that statewide evidence to the local
appraisal, but again ignores the many other factual fndings and analysis
that are specifc to Nueces County and thus problematic for its conclusion.
See infra, at 664–665.
664 ABBOTT v. PEREZ
Sotomayor, J., dissenting
that “[m]ost of the elections in [the exogenous election] index
did not involve a Latino Democrat candidate”; and that the
expert “only looked at statewide races and no county races,”
even though it was “conceivable that, in competitive local
races with Latino candidates, Hispanic voters would mobilize
in signifcantly higher numbers.” 267 F. Supp. 3d, at 781
(emphasis in original).
Based on this review of the evidence, the District Court
concluded “that Hispanics have equal opportunity in two districts
drawn wholly within Nueces County (or at least [the
challengers] failed to show that they do not).” Id., at 782.
It further explained that, whereas the “evidence shows that
two HCVAP-districts could have been drawn that would provide
Hispanics with equal electoral opportunity, . . . the evidence
does not show that the Legislature was required to
break the County Line Rule to draw what [the challengers]
consider to be `effective' districts.” Id., at 783.
When read in the context of the full analysis just detailed,
it is clear that the District Court was not “twist[ing] the
burden of proof,” ante, at 618, when it observed that the
challengers “failed to show that” the two HCVAP-majority
districts drawn wholly within Nueces County would not
perform. That statement plainly refers to the challengers'
failure to rebut the fnding that the two districts wholly
within Nueces County provided equal electoral opportunity
to Hispanics, as they needed to do to show that § 2 required
breaking the County Line Rule. If anything is “twisted . . .
beyond recognition,” ibid., it is the majority opinion's
description of the District Court's fndings. For while relying
on a reference to what the challengers' expert opined,
the majority wholly ignores the District Court's lengthy discussion
rejecting that opinion on the basis of other evidence
in the record.21
21 Contrary to what the majority suggests, the District Court did not
believe that “simple Latino majorities in Nueces County might be suffcient
to create opportunity districts” based only on “bare numCite
as: 585 U. S. 579 (2018) 665
Sotomayor, J., dissenting
This Court has been clear that “the ultimate right of § 2 is
equality of opportunity.” Johnson v. De Grandy, 512 U. S.
997, 1014, n. 11 (1994). The District Court found that two
HCVAP-majority districts drawn wholly within Nueces
County provided such “equality of opportunity,” and its fndings
of fact are not clearly erroneous. Only by selectively
reading the factual record and ignoring the relevant analysis
of those facts can the majority escape the § 2 results violation
that fows from those fndings.
IV
The Equal Protection Clause of the Fourteenth Amendment
and § 2 of the Voting Rights Act secure for all voters
in our country, regardless of race, the right to equal participation
in our political processes. Those guarantees mean
little, however, if courts do not remain vigilant in curbing
States' efforts to undermine the ability of minority voters to
meaningfully exercise that right. For although we have
made progress, “voting discrimination still exists; no one
doubts that.” Shelby County, 570 U. S., at 536.
The Court today does great damage to that right of equal
opportunity. Not because it denies the existence of that
right, but because it refuses its enforcement. The Court intervenes
when no intervention is authorized and blinds itself
to the overwhelming factual record below. It does all of this
to allow Texas to use electoral maps that, in design and efbers.”
Ante, at 618–619, n. 27. Consistent with its rebuke of Texas elsewhere
in the opinion for advocating a “bright-line rule that any HCVAPmajority
district is by defnition a Latino opportunity district” because it
“may still lack `real electoral opportunity,' ” C. J. S. 134a, the District
Court in its analysis of HD32 and HD34 was clear that the challengers
“could assert that [the] HCVAP-majority districts do not present real electoral
opportunity due to racially polarized voting and lower registration
and turnout caused by the lingering effects of offcial discrimination.”
267 F. Supp. 3d, at 781. Based on its review of that evidence, it concluded
that the two majority-HCVAP districts drawn within Nueces County provided
minority voters equal electoral opportunity. Id., at 783.
666 ABBOTT v. PEREZ
Sotomayor, J., dissenting
fect, burden the rights of minority voters to exercise that
most precious right that is “preservative of all rights.”
Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886); see Husted
v. A. Philip Randolph Institute, 584 U. S. 756, 810 (2018)
(Sotomayor, J., dissenting) (“Our democracy rests on the
ability of all individuals, regardless of race, income, or status,
to exercise their right to vote”). Because our duty is to
safeguard that fundamental right, I dissent.
OCTOBER TERM, 2017 667
Syllabus
TRUMP, PRESIDENT OF THE UNITED STATES,
et al. v. HAWAII et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 17–965. Argued April 25, 2018—Decided June 26, 2018
In September 2017, the President issued Proclamation No. 9645, seeking to
improve vetting procedures for foreign nationals traveling to the United
States by identifying ongoing defciencies in the information needed to
assess whether nationals of particular countries present a security
threat. The Proclamation placed entry restrictions on the nationals of
eight foreign states whose systems for managing and sharing information
about their nationals the President deemed inadequate. Foreign
states were selected for inclusion based on a review undertaken pursuant
to one of the President's earlier Executive Orders. As part of that
review, the Department of Homeland Security (DHS), in consultation
with the State Department and intelligence agencies, developed an information
and risk assessment “baseline.” DHS then collected and
evaluated data for all foreign governments, identifying those having defcient
information-sharing practices and presenting national security
concerns, as well as other countries “at risk” of failing to meet the baseline.
After a 50-day period during which the State Department made
diplomatic efforts to encourage foreign governments to improve their
practices, the Acting Secretary of Homeland Security concluded that
eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela,
and Yemen—remained defcient. She recommended entry restrictions
for certain nationals from all of those countries but Iraq, which had
a close cooperative relationship with the U. S. She also recommended
including Somalia, which met the information-sharing component of the
baseline standards but had other special risk factors, such as a signifcant
terrorist presence. After consulting with multiple Cabinet members,
the President adopted the recommendations and issued the Proclamation.
Invoking his authority under 8 U. S. C. §§ 1182(f ) and 1185(a),
he determined that certain restrictions were necessary to “prevent the
entry of those foreign nationals about whom the United States Government
lacks sufficient information” and “elicit improved identitymanagement
and information-sharing protocols and practices from foreign
governments. ” The Proclamation imposes a range of entry
restrictions that vary based on the “distinct circumstances” in each of
the eight countries. It exempts lawful permanent residents and pro668
TRUMP v. HAWAII
Syllabus
vides case-by-case waivers under certain circumstances. It also directs
DHS to assess on a continuing basis whether the restrictions should be
modifed or continued, and to report to the President every 180 days.
At the completion of the frst such review period, the President determined
that Chad had suffciently improved its practices, and he accordingly
lifted restrictions on its nationals.
Plaintiffs—the State of Hawaii, three individuals with foreign relatives
affected by the entry suspension, and the Muslim Association of
Hawaii—argue that the Proclamation violates the Immigration and Nationality
Act (INA) and the Establishment Clause. The District Court
granted a nationwide preliminary injunction barring enforcement of the
restrictions. The Ninth Circuit affrmed, concluding that the Proclamation
contravened two provisions of the INA: § 1182(f ), which authorizes
the President to “suspend the entry of all aliens or any class of aliens”
whenever he “fnds” that their entry “would be detrimental to the interests
of the United States,” and § 1152(a)(1)(A), which provides that “no
person shall . . . be discriminated against in the issuance of an immigrant
visa because of the person's race, sex, nationality, place of birth, or
place of residence.” The court did not reach the Establishment Clause
claim.
Held:
1. This Court assumes without deciding that plaintiffs' statutory
claims are reviewable, notwithstanding consular nonreviewability or
any other statutory nonreviewability issue. See Sale v. Haitian Centers
Council, Inc., 509 U. S. 155. Pp. 682–683.
2. The President has lawfully exercised the broad discretion granted
to him under § 1182(f ) to suspend the entry of aliens into the United
States. Pp. 683–697.
(a) By its terms, § 1182(f ) exudes deference to the President in
every clause. It entrusts to the President the decisions whether and
when to suspend entry, whose entry to suspend, for how long, and on
what conditions. It thus vests the President with “ample power” to
impose entry restrictions in addition to those elsewhere enumerated in
the INA. Sale, 509 U. S., at 187. The Proclamation falls well within
this comprehensive delegation. The sole prerequisite set forth in
§ 1182(f ) is that the President “fnd[ ]” that the entry of the covered
aliens “would be detrimental to the interests of the United States.”
The President has undoubtedly fulflled that requirement here. He frst
ordered DHS and other agencies to conduct a comprehensive evaluation
of every single country's compliance with the information and risk assessment
baseline. He then issued a Proclamation with extensive fndings
about the defciencies and their impact. Based on that review, he
Cite as: 585 U. S. 667 (2018) 669
Syllabus
found that restricting entry of aliens who could not be vetted with adequate
information was in the national interest.
Even assuming that some form of inquiry into the persuasiveness of
the President's fndings is appropriate, but see Webster v. Doe, 486 U. S.
592, 600, plaintiffs' attacks on the suffciency of the fndings cannot be
sustained. The 12-page Proclamation is more detailed than any prior
order issued under § 1182(f ). And such a searching inquiry is inconsistent
with the broad statutory text and the deference traditionally
accorded the President in this sphere. See, e. g., Sale, 509 U. S., at
187–188.
The Proclamation comports with the remaining textual limits in
§ 1182(f ). While the word “suspend” often connotes a temporary deferral,
the President is not required to prescribe in advance a fxed end
date for the entry restriction. Like its predecessors, the Proclamation
makes clear that its “conditional restrictions” will remain in force only
so long as necessary to “address” the identifed “inadequacies and risks”
within the covered nations. Finally, the Proclamation properly identifes
a “class of aliens” whose entry is suspended, and the word “class”
comfortably encompasses a group of people linked by nationality.
Pp. 684–688.
(b) Plaintiffs have not identifed any confict between the Proclamation
and the immigration scheme refected in the INA that would implicitly
bar the President from addressing defciencies in the Nation's vetting
system. The existing grounds of inadmissibility and the narrow
Visa Waiver Program do not address the failure of certain high-risk
countries to provide a minimum baseline of reliable information. Further,
neither the legislative history of § 1182(f ) nor historical practice
justifes departing from the clear text of the statute. Pp. 688–693.
(c) Plaintiffs' argument that the President's entry suspension violates
§ 1152(a)(1)(A) ignores the basic distinction between admissibility
determinations and visa issuance that runs throughout the INA. Section
1182 defnes the universe of aliens who are admissible into the
United States (and therefore eligible to receive a visa). Once § 1182
sets the boundaries of admissibility, § 1152(a)(1)(A) prohibits discrimination
in the allocation of immigrant visas based on nationality and other
traits. Had Congress intended in § 1152(a)(1)(A) to constrain the President's
power to determine who may enter the country, it could have
chosen language directed to that end. Common sense and historical
practice confrm that § 1152(a)(1)(A) does not limit the President's delegated
authority under § 1182(f ). Presidents have repeatedly exercised
their authority to suspend entry on the basis of nationality. And on
plaintiffs' reading, the President would not be permitted to suspend
670 TRUMP v. HAWAII
Syllabus
entry from particular foreign states in response to an epidemic, or even
if the United States were on the brink of war. Pp. 694–697.
3. Plaintiffs have not demonstrated a likelihood of success on the merits
of their claim that the Proclamation violates the Establishment
Clause. Pp. 697–711.
(a) The individual plaintiffs have Article III standing to challenge
the exclusion of their relatives under the Establishment Clause. A person's
interest in being united with his relatives is suffciently concrete
and particularized to form the basis of an Article III injury in fact. Cf.,
e. g., Kerry v. Din, 576 U. S. 86, 101. Pp. 697–699.
(b) Plaintiffs allege that the primary purpose of the Proclamation
was religious animus and that the President's stated concerns about
vetting protocols and national security were but pretexts for discriminating
against Muslims. At the heart of their case is a series of statements
by the President and his advisers both during the campaign and
since the President assumed offce. The issue, however, is not whether
to denounce the President's statements, but the signifcance of those
statements in reviewing a Presidential directive, neutral on its face,
addressing a matter within the core of executive responsibility. In
doing so, the Court must consider not only the statements of a particular
President, but also the authority of the Presidency itself. Pp. 699–702.
(c) The admission and exclusion of foreign nationals is a “fundamental
sovereign attribute exercised by the Government's political departments
largely immune from judicial control.” Fiallo v. Bell, 430 U. S.
787, 792. Although foreign nationals seeking admission have no constitutional
right to entry, this Court has engaged in a circumscribed judicial
inquiry when the denial of a visa allegedly burdens the constitutional
rights of a U. S. citizen. That review is limited to whether the
Executive gives a “facially legitimate and bona fde” reason for its action,
Kleindienst v. Mandel, 408 U. S. 753, 769, but the Court need not
defne the precise contours of that narrow inquiry in this case. For
today's purposes, the Court assumes that it may look behind the face of
the Proclamation to the extent of applying rational basis review, i. e.,
whether the entry policy is plausibly related to the Government's stated
objective to protect the country and improve vetting processes. Plaintiffs'
extrinsic evidence may be considered, but the policy will be upheld
so long as it can reasonably be understood to result from a justifcation
independent of unconstitutional grounds. Pp. 702–705.
(d) On the few occasions where the Court has struck down a policy
as illegitimate under rational basis scrutiny, a common thread has been
that the laws at issue were “divorced from any factual context from
which [the Court] could discern a relationship to legitimate state interests.”
Romer v. Evans, 517 U. S. 620, 635. The Proclamation does not
Cite as: 585 U. S. 667 (2018) 671
Syllabus
ft that pattern. It is expressly premised on legitimate purposes and
says nothing about religion. The entry restrictions on Muslim-majority
nations are limited to countries that were previously designated by Congress
or prior administrations as posing national security risks. Moreover,
the Proclamation refects the results of a worldwide review process
undertaken by multiple Cabinet officials and their agencies.
Plaintiffs challenge the entry suspension based on their perception of
its effectiveness and wisdom, but the Court cannot substitute its own
assessment for the Executive's predictive judgments on such matters.
See Holder v. Humanitarian Law Project, 561 U. S. 1, 33–34.
Three additional features of the entry policy support the Government's
claim of a legitimate national security interest. First, since the
President introduced entry restrictions in January 2017, three Muslimmajority
countries—Iraq, Sudan, and Chad—have been removed from
the list. Second, for those countries still subject to entry restrictions,
the Proclamation includes numerous exceptions for various categories
of foreign nationals. Finally, the Proclamation creates a waiver program
open to all covered foreign nationals seeking entry as immigrants
or nonimmigrants. Under these circumstances, the Government has
set forth a suffcient national security justifcation to survive rational
basis review. Pp. 705–710.
878 F. 3d 662, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Kennedy,
Thomas, Alito, and Gorsuch, JJ., joined. Kennedy, J., post, p. 711, and
Thomas, J., post, p. 712, fled concurring opinions. Breyer, J., fled a
dissenting opinion, in which Kagan, J., joined, post, p. 721. Sotomayor,
J., fled a dissenting opinion, in which Ginsburg, J., joined, post, p. 728.
Solicitor General Francisco argued the cause for petitioners.
With him on the briefs were Acting Assistant Attorney
General Readler, Deputy Solicitors General Wall and
Kneedler, Deputy Assistant Attorney General Mooppan,
Jonathan C. Bond, Michael R. Huston, Sharon Swingle, and
H. Thomas Byron III.
Neal Kumar Katyal argued the cause for respondents.
With him on the brief were Russell A. Suzuki, Acting Attorney
General of Hawaii, Clyde J. Wadsworth, Solicitor General,
and Deirdre Marie-Iha, Donna H. Kalama, Kimberly
T. Guidry, Robert T. Nakatsuji, Kaliko'onalani D. Fernandes,
and Kevin M. Richardson, Deputy Attorneys General,
672 TRUMP v. HAWAII
Counsel
Colleen E. Roh Sinzdak, Mitchell P. Reich, Elizabeth Hagerty,
Sundeep Iyer, Reedy C. Swanson, Thomas P. Schmidt,
and Sara Solow.*
*Briefs of amici curiae urging reversal were fled for the State of Texas
et al. by Ken Paxton, Attorney General of Texas, Scott A. Keller, Solicitor
General, Jeffrey C. Mateer, First Assistant Attorney General, and Ari
Cuenin, Assistant Solicitor General, and by the Attorneys General for
their respective States as follows: Steve Marshall of Alabama, Mark
Brnovich of Arizona, Leslie Rutledge of Arkansas, Pamela Jo Bondi of
Florida, Curtis T. Hill, Jr., of Indiana, Derek Schmidt of Kansas, Jeff
Landry of Louisiana, Joshua D. Hawley of Missouri, Michael DeWine of
Ohio, Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Marty
J. Jackley of South Dakota, and Patrick Morrisey of West Virginia; for
the American Center for Law and Justice by Jay Alan Sekulow, Stuart J.
Roth, Colby M. May, Andrew J. Ekonomou, Jordan Sekulow, Craig L.
Parshall, Matthew R. Clark, Benjamin P. Sisney, Edward L. White III,
Erik M. Zimmerman, Francis J. Manion, and Geoffrey R. Surtees; for the
American Civil Rights Union by Kenneth A. Klukowski; for the Center
for Constitutional Jurisprudence by John C. Eastman and Anthony T.
Caso; for Citizens United et al. by William J. Olson, Herbert W. Titus,
Robert J. Olson, Jeremiah L. Morgan, and Joseph W. Miller; for the Eagle
Forum Education & Legal Defense Fund by Lawrence J. Joseph; for the
Foundation for Moral Law by John Eidsmoe and Matthew J. Clark; for
the Great Lakes Justice Center by William Wagner and Erin Elizabeth
Mersino; for the Immigration Reform Law Institute by Christopher J.
Hajec, Julie B. Axelrod, and Michael M. Hethmon; for the Liberty, Life,
and Law Foundation by Deborah J. Dewart; for National Security Experts
by David Yerushalmi and Robert Joseph Muise; for the Southeastern
Legal Foundation by William S. Consovoy, J. Michael Connolly, and
Kimberly S. Hermann; and for the Zionist Organization of America by
Elizabeth Berney.
Briefs of amici curiae urging affrmance were fled for the State of New
York et al. by Eric T. Schneiderman, Attorney General of New York,
Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy
Solicitor General, and Zainab A. Chaudhry, Assistant Solicitor General,
and by the Attorneys General for their respective jurisdictions as follows:
Xavier Becerra of California, George Jepsen of Connecticut, Matthew
P. Denn of Delaware, Karl A. Racine of the District of Columbia, Lisa
Madigan of Illinois, Thomas J. Miller of Iowa, Janet T. Mills of Maine,
Brian E. Frosh of Maryland, Maura Healey of Massachusetts, Gurbir S.
Grewal of New Jersey, Hector Balderas of New Mexico, Ellen F. RosenCite
as: 585 U. S. 667 (2018) 673
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
Under the Immigration and Nationality Act, foreign nationals
seeking entry into the United States undergo a vetblum
of Oregon, Peter F. Kilmartin of Rhode Island, Thomas J. Donovan,
Jr., of Vermont, Mark R. Herring of Virginia, and Robert Ferguson of
Wisconsin; for Chicago et al. by Benna Ruth Solomon, Ryan P. Poscablo,
Br ian Ne ff, Michael N. Feuer, Zachary W. Carter, and Andrew W.
Worseck; for the American-Arab Anti-Discrimination Committee by
Christopher J. Wright, E. Austin Bonner, Abed A. Ayoub, and Anton C.
Hajjar; for the American Bar Association by Hilarie Bass, Danielle Spinelli,
and Kevin M. Lamb; for the American Council on Education et al.
by Chad Golder, Brad D. Brian, and Michael R. Doyen; for the American
Jewish Committee by Adam S. Lurie, Vijaya R. Palaniswamy, Caitlin
K. Potratz, John W. Akin, Stephen A. Cobb, and Marc D. Stern; for the
Anti-Defamation League et al. by John B. Harris and Caren Decter; for
the Association of American Medical Colleges et al. by Joshua David Rogaczewski
and Frank R. Trinity; for the Association of Art Museum Directors
et al. by Sharon Katz; for the Cato Institute by David Y. Livshiz,
Daniel Braun, Peter Jaffe, and Lauren Kaplin; for Certain Immigrant
Rights Organizations by Alan C. Turner and Harrison Frahn; for Colleges
et al. by Thomas J. Perrelli and Lindsay C. Harrison; for Constitutional
Law Scholars by Ilya Somin, pro se, Barry R. Levy, H. Thomas
Watson, and Kirk C. Jenkins; for Constitutional Law Scholars by Roberta
A. Kaplan and Joshua Matz; for Episcopal Bishops by Jake Ewart and
Michael R. Scott; for Federal Courts Scholars by Matthew S. Hellman
and Sarah M. Konsky; for Former Executive Branch Offcials by Robert
M. Loeb, Kelsi Brown Corkran, Thomas M. Bondy, and Matthew L. Bush;
for Former National Security Offcials by Harold Hongju Koh, William J.
Murphy, John J. Connolly, Phillip Spector, and Jonathan Freiman; for
the Freedom From Religion Foundation by Rebecca S. Markert; for Immigration
Equality et al. by Eric J. Gorman, Matthew E. Sloan, Jennifer H.
Berman, Noelle M. Reed, Richard A. Schwartz, Allison B. Holcombe,
Alyssa J. Clover, and Sarah Grossnickle; for Immigration Law Professors
et al. by Robert A. Wiygul and Mark A. Aronchick; for Immigration Law
Scholars on the Text and Structure of the Immigration and Nationality
Act by Fatima Marouf and Deborah Anker; for Interfaith Group of Religious
and Interreligious Organizations by Joseph R. Palmore, Marc A.
Hearron, and Jennifer K. Brown; for International Law Scholars et al. by
Aaron X. Fellmeth, Bruce V. Spiva, and Elisabeth C. Frost; for the Japanese
American Citizens League by Walter D. Dellinger, George T. Framp674
TRUMP v. HAWAII
Opinion of the Court
ting process to ensure that they satisfy the numerous requirements
for admission. The Act also vests the President
with authority to restrict the entry of aliens whenever he
fnds that their entry “would be detrimental to the interests
ton, Jr., and Joseph N. Roth; for Labor Organizations by Barbara J. Chisholm,
Kristin M. García, Nicole G. Berner, Deborah L. Smith, Judith
Rivlin, David J. Strom, Alice O'Brien, Emma Leheny, Lubna A. Alam,
Ava Barbour, Mario Martínez, and Nicholas Clark; for the Massachusetts
Technology Leadership Council, Inc., by Christopher Escobedo Hart and
Daniel L. McFadden; for Members of Congress by Elizabeth B. Wydra,
Brianne J. Gorod, David H. Gans, Peter Karanjia, Geoffrey Brounell,
Victor A. Kovner, and Raymond H. Brescia; for the Muslim Justice
League et al. by Benjamin G. Shatz; for the NAACP Legal Defense &
Educational Fund, Inc., by Ajmel Quereshi, Christopher Kemmitt, Sherrilyn
A. Ifll, Janai S. Nelson, Samuel Spital, and Jin Hee Lee; for the
National Asian Pacifc American Bar Association et al. by James W. Kim,
Navdeep Singh, Meredith S. H. Higashi, Rachana Pathak, and Albert
Giang; for the National Association of Muslim Lawyers et al. by Adeel A.
Mangi, Michael F. Buchanan, and Michael R. McDonald; for the National
Immigrant Justice Center et al. by Robert N. Hochman and Charles Roth;
for the National League of Cities et al. by Stuart Banner and Lisa E.
Soronen; for New York University by Steven E. Obus and Terrance J.
Nolan; for the Pars Equality Center et al. by Lisa S. Blatt, John A. Freedman,
R. Stanton Jones, Nancy L. Perkins, Ronald A. Schechter, Robert
N. Weiner, Kristen Clarke, Jon Greenbaum, Cyrus Mehri, Joanna K.
Wasik, and Susan S. Hu; for PEN America et al. by Robert Corn-Revere
and Robert D. Balin; for Plaintiffs in International Refugee Assistance
Project v. Trump by Omar C. Jadwat, Lee Gelernt, Hina Shamsi, Karen
C. Tumlin, Nicholas Espíritu, Melissa S. Keaney, Esther Sung, Marielena
Hincapié, Justin B. Cox, David Rocah, Deborah A. Jeon, Sonia
Kumar, Linda Evarts, Mariko Hirose, Cecillia D. Wang, Cody H. Wofsy,
David Cole, Daniel Mach, and Heather L. Weaver; for Plaintiffs in Iranian
Alliances Across Borders v. Trump by Richard B. Katskee, Eric
Rothschild, Sirine Shebaya, Mark H. Lynch, Mark W. Mosier, and Jose
E. Arvelo; for Professors of Federal Courts Jurisprudence et al. by Meir
Feder, Rasha Gerges Shields, Rajeev Muttreja, and Judith Resnik, Burt
Neuborne, and Lucas Guttentag, all pro se; for Retired Generals of the
U. S. Armed Forces et al. by Donald Francis Donovan, Carl J. Micarelli,
and Hardy Vieux; for the Roderick & Solange MacArthur Justice Center
by Amir H. Ali; for Scholars of Immigration Law by Peter Margulies, and
Alan E. Schoenfeld and Shoba Sivaprasad Wadhia, both pro se; for the
Cite as: 585 U. S. 667 (2018) 675
Opinion of the Court
of the United States.” 8 U. S. C. § 1182(f). Relying on that
delegation, the President concluded that it was necessary to
impose entry restrictions on nationals of countries that do
not share adequate information for an informed entry determination,
or that otherwise present national security risks.
Presidential Proclamation No. 9645, 82 Fed. Reg. 45161
(2017) (Proclamation). The plaintiffs in this litigation, respondents
here, challenged the application of those entry restrictions
to certain aliens abroad. We now decide whether
the President had authority under the Act to issue the Proc-
Tahirih Justice Center et al. by Scott L. Winkelman; for the United States
Conference of Catholic Bishops et al. by Theodore J. Boutrous, Jr., Ethan
D. Dettmer, Joshua S. Lipshutz, Anthony R. Picarello, Jr., and Jeffrey
Hunter Moon; and for U. S. Companies by Andrew J. Pincus and Paul W.
Hughes; for David Boyle by Mr. Boyle, pro se; for Mickey Edwards et al.
by Tadhg Dooley and Benjamin M. Daniels; for Khizr Khan by Dan Jackson;
for Karen Korematsu et al. by Pratik A. Shah, Robert S. Chang, Eric
K. Yamamoto, Robert L. Rusky, Dale Minami, Peter Irons, Leigh-Ann
K. Miyasato, Robert A. Johnson, Jessica M. Weisel, and Rodney L. Kawakami;
for Evan McMullin et al. by John B. Bellinger III, Elliott C. Mogul,
and R. Reeves Anderson; for Janet Napolitano et al. by Michael J. Gottlieb
and J. Wells Harrell; for William Webster et al. by Richard D. Bernstein;
for Eblal Zakzok et al. by Robert A. Atkins, Andrew J. Ehrlich, Steven C.
Herzog, Faiza Patel, Michael Price, Lena F. Masri, and Carolyn Homer;
and for 36 Appellate Lawyers by Charles A. Bird, Richard A. Derevan,
Jon B. Eisenberg, Kathryn E. Karcher, Wendy Cole Lascher, Robin
Meadow, Susan Alexander, Robert Bacon, Charles Bonneau, Orly Degani,
Jay-Allen Eisen, David Ettinger, Dennis Fischer, Paul Fogel, Cliff
Gardner, Robert Gersetin, Howard Goodfriend, Mark Alan Hart, Laurie
Hepler, Steven Hirsch, Charity Kenyon, Todd Lundell, Erick Multhaup,
Bradley Pauley, Barbara Ravitz, Kent Richland, Amitai Schwartz, Elisabeth
Semel, Charles Sevilla, Catherine Smith, Cindy Tobisman, Michael
Traynor, and Douglas Young.
Briefs of amici curiae were fled for the Alliance Defending Freedom
by David A. Cortman, Rory T. Gray, Kristen K. Waggoner, and Jonathan
A. Scruggs; for the Becket Fund for Religious Liberty by Eric C. Rassbach,
Mark L. Rienzi, Diana M. Verm, and Joseph C. Davis; for the Christian
Legal Society et al. by Kimberlee Wood Colby; and for Scholars of
Mormon History & Law by Anna-Rose Mathieson.
676 TRUMP v. HAWAII
Opinion of the Court
lamation, and whether the entry policy violates the Establishment
Clause of the First Amendment.
I
A
Shortly after taking offce, President Trump signed Executive
Order No. 13769, Protecting the Nation From Foreign
Terrorist Entry Into the United States. 82 Fed. Reg. 8977
(2017) (EO–1). EO–1 directed the Secretary of Homeland
Security to conduct a review to examine the adequacy of
information provided by foreign governments about their nationals
seeking to enter the United States. § 3(a). Pending
that review, the order suspended for 90 days the entry of
foreign nationals from seven countries—Iran, Iraq, Libya,
Somalia, Sudan, Syria, and Yemen—that had been previously
identifed by Congress or prior administrations as posing
heightened terrorism risks. § 3(c). The District Court for
the Western District of Washington entered a temporary restraining
order blocking the entry restrictions, and the
Court of Appeals for the Ninth Circuit denied the Government's
request to stay that order. Washington v. Trump,
847 F. 3d 1151 (2017) (per curiam).
In response, the President revoked EO–1, replacing it with
Executive Order No. 13780, which again directed a worldwide
review. 82 Fed. Reg. 13209 (2017) (EO–2). Citing investigative
burdens on agencies and the need to diminish the
risk that dangerous individuals would enter without adequate
vetting, EO–2 also temporarily restricted the entry
(with case-by-case waivers) of foreign nationals from six of
the countries covered by EO–1: Iran, Libya, Somalia, Sudan,
Syria, and Yemen. §§ 2(c), 3(a). The order explained that
those countries had been selected because each “is a state
sponsor of terrorism, has been signifcantly compromised by
terrorist organizations, or contains active confict zones.”
§ 1(d). The entry restriction was to stay in effect for 90
days, pending completion of the worldwide review.
Cite as: 585 U. S. 667 (2018) 677
Opinion of the Court
These interim measures were immediately challenged in
court. The District Courts for the Districts of Maryland
and Hawaii entered nationwide preliminary injunctions barring
enforcement of the entry suspension, and the respective
Courts of Appeals upheld those injunctions, albeit on different
grounds. International Refugee Assistance Project
(IRAP) v. Trump, 857 F. 3d 554 (CA4 2017); Hawaii v.
Trump, 859 F. 3d 741 (CA9 2017) (per curiam). This Court
granted certiorari and stayed the injunctions—allowing the
entry suspension to go into effect—with respect to foreign
nationals who lacked a “credible claim of a bona fde relationship”
with a person or entity in the United States. Trump
v. IRAP, 582 U. S. 571, 582 (2017) (per curiam). The temporary
restrictions in EO–2 expired before this Court took any
action, and we vacated the lower court decisions as moot.
Trump v. IRAP, 583 U. S. 912 (2017); Trump v. Hawaii, 583
U. S. 941 (2017).
On September 24, 2017, after completion of the worldwide
review, the President issued the Proclamation before us—
Proclamation No. 9645, Enhancing Vetting Capabilities and
Processes for Detecting Attempted Entry Into the United
States by Terrorists or Other Public-Safety Threats. 82
Fed. Reg. 45161. The Proclamation (as its title indicates)
sought to improve vetting procedures by identifying ongoing
defciencies in the information needed to assess whether nationals
of particular countries present “public-safety
threats.” § 1(a). To further that purpose, the Proclamation
placed entry restrictions on the nationals of eight foreign
states whose systems for managing and sharing information
about their nationals the President deemed inadequate.
The Proclamation described how foreign states were selected
for inclusion based on the review undertaken pursuant
to EO–2. As part of that review, the Department of Homeland
Security (DHS), in consultation with the State Department
and several intelligence agencies, developed a “baseline”
for the information required from foreign governments
678 TRUMP v. HAWAII
Opinion of the Court
to confrm the identity of individuals seeking entry into the
United States, and to determine whether those individuals
pose a security threat. § 1(c). The baseline included three
components. The frst, “identity-management information,”
focused on whether a foreign government ensures the integrity
of travel documents by issuing electronic passports, reporting
lost or stolen passports, and making available additional
identity-related information. Second, the agencies
considered the extent to which the country discloses information
on criminal history and suspected terrorist links, provides
travel document exemplars, and facilitates the U. S.
Government's receipt of information about airline passengers
and crews traveling to the United States. Finally, the agencies
weighed various indicators of national security risk, including
whether the foreign state is a known or potential
terrorist safe haven and whether it regularly declines to receive
returning nationals following fnal orders of removal
from the United States. Ibid.
DHS collected and evaluated data regarding all foreign
governments. § 1(d). It identifed 16 countries as having
defcient information-sharing practices and presenting national
security concerns, and another 31 countries as “at
risk” of similarly failing to meet the baseline. § 1(e). The
State Department then undertook diplomatic efforts over a
50-day period to encourage all foreign governments to improve
their practices. § 1(f). As a result of that effort, numerous
countries provided DHS with travel document exemplars
and agreed to share information on known or suspected
terrorists. Ibid.
Following the 50-day period, the Acting Secretary of
Homeland Security concluded that eight countries—Chad,
Iran, Iraq, Libya, North Korea, Syria, Venezuela, and
Yemen—remained defcient in terms of their risk profle and
willingness to provide requested information. The Acting
Secretary recommended that the President impose entry restrictions
on certain nationals from all of those countries exCite
as: 585 U. S. 667 (2018) 679
Opinion of the Court
cept Iraq. §§ 1(g), (h). She also concluded that although
Somalia generally satisfed the information-sharing component
of the baseline standards, its “identity-management defciencies”
and “signifcant terrorist presence” presented special
circumstances justifying additional limitations. She
therefore recommended entry limitations for certain nationals
of that country. § 1(i). As for Iraq, the Acting Secretary
found that entry limitations on its nationals were not
warranted given the close cooperative relationship between
the U. S. and Iraqi Governments and Iraq's commitment to
combating ISIS. § 1(g).
After consulting with multiple Cabinet members and other
offcials, the President adopted the Acting Secretary's recommendations
and issued the Proclamation. Invoking his authority
under 8 U. S. C. §§ 1182(f) and 1185(a), the President
determined that certain entry restrictions were necessary to
“prevent the entry of those foreign nationals about whom
the United States Government lacks suffcient information”;
“elicit improved identity-management and informationsharing
protocols and practices from foreign governments”;
and otherwise “advance [the] foreign policy, national security,
and counterterrorism objectives” of the United States.
Proclamation § 1(h)(i). The President explained that these
restrictions would be the “most likely to encourage cooperation”
while “protect[ing] the United States until such time
as improvements occur.” Ibid.
The Proclamation imposed a range of restrictions that
vary based on the “distinct circumstances” in each of the
eight countries. Ibid. For countries that do not cooperate
with the United States in identifying security risks (Iran,
North Korea, and Syria), the Proclamation suspends entry
of all nationals, except for Iranians seeking nonimmigrant
student and exchange-visitor visas. §§ 2(b)(ii), (d)(ii), (e)(ii).
For countries that have information-sharing defciencies but
are nonetheless “valuable counterterrorism partner[s] ”
(Chad, Libya, and Yemen), it restricts entry of nationals
680 TRUMP v. HAWAII
Opinion of the Court
seeking immigrant visas and nonimmigrant business or tourist
visas. §§ 2(a)(i), (c)(i), (g)(i). Because Somalia generally
satisfes the baseline standards but was found to present special
risk factors, the Proclamation suspends entry of nationals
seeking immigrant visas and requires additional scrutiny
of nationals seeking nonimmigrant visas. § 2(h)(ii). And
for Venezuela, which refuses to cooperate in information
sharing but for which alternative means are available to
identify its nationals, the Proclamation limits entry only of
certain government offcials and their family members on
nonimmigrant business or tourist visas. § 2(f)(ii).
The Proclamation exempts lawful permanent residents
and foreign nationals who have been granted asylum. § 3(b).
It also provides for case-by-case waivers when a foreign national
demonstrates undue hardship, and that his entry is in
the national interest and would not pose a threat to public
safety. § 3(c)(i); see also § 3(c)(iv) (listing examples of when
a waiver might be appropriate, such as if the foreign national
seeks to reside with a close family member, obtain urgent
medical care, or pursue signifcant business obligations).
The Proclamation further directs DHS to assess on a continuing
basis whether entry restrictions should be modifed or
continued, and to report to the President every 180 days.
§ 4. Upon completion of the frst such review period, the
President, on the recommendation of the Secretary of Homeland
Security, determined that Chad had suffciently improved
its practices, and he accordingly lifted restrictions on
its nationals. Presidential Proclamation No. 9723, 83 Fed.
Reg. 15937 (2018).
B
Plaintiffs in this case are the State of Hawaii, three individuals
(Dr. Ismail Elshikh, John Doe #1, and John Doe #2),
and the Muslim Association of Hawaii. The State operates
the University of Hawaii system, which recruits students
and faculty from the designated countries. The three individual
plaintiffs are U. S. citizens or lawful permanent resiCite
as: 585 U. S. 667 (2018) 681
Opinion of the Court
dents who have relatives from Iran, Syria, and Yemen applying
for immigrant or nonimmigrant visas. The Association
is a nonproft organization that operates a mosque in Hawaii.
Plaintiffs challenged the Proclamation—except as applied
to North Korea and Venezuela—on several grounds. As relevant
here, they argued that the Proclamation contravenes
provisions in the Immigration and Nationality Act (INA), 66
Stat. 187, as amended. Plaintiffs further claimed that the
Proclamation violates the Establishment Clause of the First
Amendment, because it was motivated not by concerns pertaining
to national security but by animus toward Islam.
The District Court granted a nationwide preliminary injunction
barring enforcement of the entry restrictions. The
court concluded that the Proclamation violated two provisions
of the INA: § 1182(f), because the President did not
make suffcient fndings that the entry of the covered foreign
nationals would be detrimental to the national interest, and
§ 1152(a)(1)(A), because the policy discriminates against immigrant
visa applicants on the basis of nationality. 265
F. Supp. 3d 1140, 1155–1159 (Haw. 2017). The Government
requested expedited briefng and sought a stay pending appeal.
The Court of Appeals for the Ninth Circuit granted
a partial stay, permitting enforcement of the Proclamation
with respect to foreign nationals who lack a bona fde relationship
with the United States. This Court then stayed
the injunction in full pending disposition of the Government's
appeal. 583 U. S. 1009 (2017).
The Court of Appeals affrmed. The court frst held that
the Proclamation exceeds the President's authority under
§ 1182(f). In its view, that provision authorizes only a “temporary”
suspension of entry in response to “exigencies” that
“Congress would be ill-equipped to address.” 878 F. 3d 662,
684, 688 (2017). The court further reasoned that the Proclamation
“conficts with the INA's fnely reticulated regulatory
scheme” by addressing “matters of immigration already
passed upon by Congress.” Id., at 685, 690. The Ninth
682 TRUMP v. HAWAII
Opinion of the Court
Circuit then turned to § 1152(a)(1)(A) and determined that
the entry restrictions also contravene the prohibition on
nationality-based discrimination in the issuance of immigrant
visas. The court did not reach plaintiffs' Establishment
Clause claim.
We granted certiorari. 583 U. S. 1099 (2018).
II
Before addressing the merits of plaintiffs' statutory claims,
we consider whether we have authority to do so. The Government
argues that plaintiffs' challenge to the Proclamation
under the INA is not justiciable. Relying on the doctrine
of consular nonreviewability, the Government contends that
because aliens have no “claim of right” to enter the United
States, and because exclusion of aliens is “a fundamental act
of sovereignty” by the political branches, review of an exclusion
decision “is not within the province of any court, unless
expressly authorized by law.” United States ex rel. Knauff
v. Shaughnessy, 338 U. S. 537, 542–543 (1950). According to
the Government, that principle barring review is refected in
the INA, which sets forth a comprehensive framework for
review of orders of removal, but authorizes judicial review
only for aliens physically present in the United States. See
Brief for Petitioners 19–20 (citing 8 U. S. C. § 1252).
The justiciability of plaintiffs' challenge under the INA
presents a diffcult question. The Government made similar
arguments that no judicial review was available in Sale v.
Haitian Centers Council, Inc., 509 U. S. 155 (1993). The
Court in that case, however, went on to consider on the merits
a statutory claim like the one before us without addressing
the issue of reviewability. The Government does not
argue that the doctrine of consular nonreviewability goes to
the Court's jurisdiction, see Tr. of Oral Arg. 13, nor does it
point to any provision of the INA that expressly strips the
Court of jurisdiction over plaintiffs' claims, see Sebelius v.
Auburn Regional Medical Center, 568 U. S. 145, 153 (2013)
Cite as: 585 U. S. 667 (2018) 683
Opinion of the Court
(requiring Congress to “clearly state[ ]” that a statutory provision
is jurisdictional). As a result, we may assume without
deciding that plaintiffs' statutory claims are reviewable,
notwithstanding consular nonreviewability or any other statutory
nonreviewability issue, and we proceed on that basis.
III
The INA establishes numerous grounds on which an alien
abroad may be inadmissible to the United States and ineligible
for a visa. See, e. g., 8 U. S. C. §§ 1182(a)(1) (healthrelated
grounds), (a)(2) (criminal history), (a)(3)(B) (terrorist
activities), (a)(3)(C) (foreign policy grounds). Congress has
also delegated to the President authority to suspend or restrict
the entry of aliens in certain circumstances. The
principal source of that authority, § 1182(f), enables the President
to “suspend the entry of all aliens or any class of aliens”
whenever he “fnds” that their entry “would be detrimental
to the interests of the United States.” 1
Plaintiffs argue that the Proclamation is not a valid exercise
of the President's authority under the INA. In their
view, § 1182(f) confers only a residual power to temporarily
halt the entry of a discrete group of aliens engaged in harmful
conduct. They also assert that the Proclamation violates
another provision of the INA—8 U. S. C. § 1152(a)(1)(A)—because
it discriminates on the basis of nationality in the issuance
of immigrant visas.
By its plain language, § 1182(f) grants the President broad
discretion to suspend the entry of aliens into the United
1 The President also invoked his power under 8 U. S. C. § 1185(a)(1),
which grants the President authority to adopt “reasonable rules, regulations,
and orders” governing entry or removal of aliens, “subject to such
limitations and exceptions as [he] may prescribe.” Because this provision
“substantially overlap[s]” with § 1182(f ), we agree with the Government
that we “need not resolve . . . the precise relationship between the two
statutes” in evaluating the validity of the Proclamation. Brief for Petitioners
32–33.
684 TRUMP v. HAWAII
Opinion of the Court
States. The President lawfully exercised that discretion
based on his fndings—following a worldwide, multi-agency
review—that entry of the covered aliens would be detrimental
to the national interest. And plaintiffs' attempts to identify
a confict with other provisions in the INA, and their
appeal to the statute's purposes and legislative history, fail
to overcome the clear statutory language.
A
The text of § 1182(f) states:
“Whenever the President fnds that the entry of any
aliens or of any class of aliens into the United States
would be detrimental to the interests of the United
States, he may by proclamation, and for such period as
he shall deem necessary, suspend the entry of all aliens
or any class of aliens as immigrants or nonimmigrants,
or impose on the entry of aliens any restrictions he may
deem to be appropriate.”
By its terms, § 1182(f) exudes deference to the President
in every clause. It entrusts to the President the decisions
whether and when to suspend entry (“[w]henever [he] fnds
that the entry” of aliens “would be detrimental” to the national
interest); whose entry to suspend (“all aliens or any
class of aliens”); for how long (“for such period as he shall
deem necessary”); and on what conditions (“any restrictions
he may deem to be appropriate”). It is therefore unsurprising
that we have previously observed that § 1182(f) vests the
President with “ample power” to impose entry restrictions
in addition to those elsewhere enumerated in the INA.
Sale, 509 U. S., at 187 (fnding it “perfectly clear” that the
President could “establish a naval blockade” to prevent illegal
migrants from entering the United States); see also
Abourezk v. Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986)
(describing the “sweeping proclamation power” in § 1182(f)
as enabling the President to supplement the other grounds
of inadmissibility in the INA).
Cite as: 585 U. S. 667 (2018) 685
Opinion of the Court
The Proclamation falls well within this comprehensive delegation.
The sole prerequisite set forth in § 1182(f) is that
the President “fnd[ ]” that the entry of the covered aliens
“would be detrimental to the interests of the United States.”
The President has undoubtedly fulflled that requirement
here. He frst ordered DHS and other agencies to conduct
a comprehensive evaluation of every single country's compliance
with the information and risk assessment baseline.
The President then issued a Proclamation setting forth extensive
fndings describing how defciencies in the practices
of select foreign governments—several of which are state
sponsors of terrorism—deprive the Government of “suffcient
information to assess the risks [those countries' nationals]
pose to the United States. ” Proclamation § 1(h)(i).
Based on that review, the President found that it was in the
national interest to restrict entry of aliens who could not be
vetted with adequate information—both to protect national
security and public safety, and to induce improvement
by their home countries. The Proclamation therefore
“craft[ed] . . . country-specifc restrictions that would be most
likely to encourage cooperation given each country's distinct
circumstances,” while securing the Nation “until such time
as improvements occur.” Ibid.2
Plaintiffs believe that these findings are insufficient.
They argue, as an initial matter, that the Proclamation fails
to provide a persuasive rationale for why nationality alone
renders the covered foreign nationals a security risk. And
they further discount the President's stated concern about
defcient vetting because the Proclamation allows many
aliens from the designated countries to enter on nonimmigrant
visas.
Such arguments are grounded on the premise that
§ 1182(f) not only requires the President to make a fnding
2 The Proclamation states that it does not disclose every ground for the
country-specifc restrictions because “[d]escribing all of those reasons publicly
. . . would cause serious damage to the national security of the United
States, and many such descriptions are classifed.” § 1( j).
686 TRUMP v. HAWAII
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that entry “would be detrimental to the interests of the
United States,” but also to explain that fnding with suffcient
detail to enable judicial review. That premise is questionable.
See Webster v. Doe, 486 U. S. 592, 600 (1988) (concluding
that a statute authorizing the CIA Director to
terminate an employee when the Director “shall deem such
termination necessary or advisable in the interests of the
United States” forecloses “any meaningful judicial standard
of review”). But even assuming that some form of review
is appropriate, plaintiffs' attacks on the suffciency of the
President's fndings cannot be sustained. The 12-page Proclamation—
which thoroughly describes the process, agency
evaluations, and recommendations underlying the President's
chosen restrictions—is more detailed than any prior
order a President has issued under § 1182(f). Contrast Presidential
Proclamation No. 6958, 3 CFR 133 (1996) (President
Clinton) (explaining in one sentence why suspending entry
of members of the Sudanese Government and armed forces
“is in the foreign policy interests of the United States”);
Presidential Proclamation No. 4865, 3 CFR 50–51 (1981)
(President Reagan) (explaining in fve sentences why measures
to curtail “the continuing illegal migration by sea of
large numbers of undocumented aliens into the southeastern
United States” are “necessary”).
Moreover, plaintiffs' request for a searching inquiry into
the persuasiveness of the President's justifcations is inconsistent
with the broad statutory text and the deference traditionally
accorded the President in this sphere. “Whether
the President's chosen method” of addressing perceived risks
is justifed from a policy perspective is “irrelevant to the
scope of his [§ 1182(f)] authority.” Sale, 509 U. S., at 187–
188. And when the President adopts “a preventive measure
. . . in the context of international affairs and national security,”
he is “not required to conclusively link all of the pieces
in the puzzle before [courts] grant weight to [his] empirical
Cite as: 585 U. S. 667 (2018) 687
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conclusions.” Holder v. Humanitarian Law Project, 561
U. S. 1, 35 (2010).
The Proclamation also comports with the remaining textual
limits in § 1182(f). We agree with plaintiffs that the
word “suspend” often connotes a “defer[ral] till later,” Webster's
Third New International Dictionary 2303 (1966). But
that does not mean that the President is required to prescribe
in advance a fxed end date for the entry restrictions.
Section 1182(f) authorizes the President to suspend entry
“for such period as he shall deem necessary.” It follows that
when a President suspends entry in response to a diplomatic
dispute or policy concern, he may link the duration of those
restrictions, implicitly or explicitly, to the resolution of the
triggering condition. See, e. g., Presidential Proclamation
No. 5829, 3 CFR 88 (1988) (President Reagan) (suspending
the entry of certain Panamanian nationals “until such time
as . . . democracy has been restored in Panama”); Presidential
Proclamation No. 8693, 3 CFR 86–87 (2011) (President
Obama) (suspending the entry of individuals subject to a
travel restriction under United Nations Security Council
resolutions “until such time as the Secretary of State determines
that [the suspension] is no longer necessary”). In
fact, not one of the 43 suspension orders issued prior to this
litigation has specifed a precise end date.
Like its predecessors, the Proclamation makes clear that
its “conditional restrictions” will remain in force only so long
as necessary to “address” the identifed “inadequacies and
risks” within the covered nations. Proclamation Preamble,
and § 1(h); see ibid. (explaining that the aim is to “relax[ ] or
remove[ ]” the entry restrictions “as soon as possible”). To
that end, the Proclamation establishes an ongoing process to
engage covered nations and assess every 180 days whether
the entry restrictions should be modifed or terminated.
§§ 4(a), (b). Indeed, after the initial review period, the
President determined that Chad had made suffcient im688
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provements to its identity-management protocols, and he accordingly
lifted the entry suspension on its nationals. See
Proclamation No. 9723, 83 Fed. Reg. 15937.
Finally, the Proclamation properly identifes a “class of
aliens”—nationals of select countries—whose entry is suspended.
Plaintiffs argue that “class” must refer to a welldefned
group of individuals who share a common “characteristic”
apart from nationality. Brief for Respondents 42.
But the text of § 1182(f), of course, does not say that, and
the word “class” comfortably encompasses a group of people
linked by nationality. Plaintiffs also contend that the class
cannot be “overbroad. ” Id., at 42. But that simply
amounts to an unspoken tailoring requirement found nowhere
in Congress's grant of authority to suspend entry of
not only “any class of aliens” but “all aliens.”
In short, the language of § 1182(f) is clear, and the Proclamation
does not exceed any textual limit on the President's
authority.
B
Confronted with this “facially broad grant of power,” 878
F. 3d, at 688, plaintiffs focus their attention on statutory
structure and legislative purpose. They seek support in,
frst, the immigration scheme refected in the INA as a
whole, and, second, the legislative history of § 1182(f) and
historical practice. Neither argument justifes departing
from the clear text of the statute.
1
Plaintiffs' structural argument starts with the premise
that § 1182(f) does not give the President authority to countermand
Congress's considered policy judgments. The
President, they say, may supplement the INA, but he cannot
supplant it. And in their view, the Proclamation falls in the
latter category because Congress has already specifed a
two-part solution to the problem of aliens seeking entry from
countries that do not share suffcient information with the
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United States. First, Congress designed an individualized
vetting system that places the burden on the alien to prove
his admissibility. See § 1361. Second, instead of banning
the entry of nationals from particular countries, Congress
sought to encourage information sharing through a Visa
Waiver Program offering fast-track admission for countries
that cooperate with the United States. See § 1187.
We may assume that § 1182(f) does not allow the President
to expressly override particular provisions of the INA. But
plaintiffs have not identifed any confict between the statute
and the Proclamation that would implicitly bar the President
from addressing defciencies in the Nation's vetting system.
To the contrary, the Proclamation supports Congress's individualized
approach for determining admissibility. The
INA sets forth various inadmissibility grounds based on connections
to terrorism and criminal history, but those provisions
can only work when the consular offcer has suffcient
(and suffciently reliable) information to make that determination.
The Proclamation promotes the effectiveness of the
vetting process by helping to ensure the availability of such
information.
Plaintiffs suggest that the entry restrictions are unnecessary
because consular offcers can simply deny visas in individual
cases when an alien fails to carry his burden of proving
admissibility—for example, by failing to produce certifed
records regarding his criminal history. Brief for Respondents
48. But that misses the point: A critical fnding of the
Proclamation is that the failure of certain countries to provide
reliable information prevents the Government from accurately
determining whether an alien is inadmissible or
poses a threat. Proclamation § 1(h). Unless consular offcers
are expected to apply categorical rules and deny entry
from those countries across the board, fraudulent or unreliable
documentation may thwart their review in individual
cases. And at any rate, the INA certainly does not require
that systemic problems such as the lack of reliable informa690
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tion be addressed only in a progression of case-by-case admissibility
determinations. One of the key objectives of the
Proclamation is to encourage foreign governments to improve
their practices, thus facilitating the Government's vetting
process overall. Ibid.
Nor is there a confict between the Proclamation and the
Visa Waiver Program. The Program allows travel without
a visa for short-term visitors from 38 countries that have
entered into a “rigorous security partnership” with the
United States. DHS, U. S. Visa Waiver Program (Apr. 6,
2016), http://www.dhs.gov/visa-waiver-program (as last visited
June 25, 2018). Eligibility for that partnership involves
“broad and consequential assessments of [the country's] foreign
security standards and operations.” Ibid. A foreign
government must (among other things) undergo a comprehensive
evaluation of its “counterterrorism, law enforcement,
immigration enforcement, passport security, and border
management capabilities,” often including “operational site
inspections of airports, seaports, land borders, and passport
production and issuance facilities.” Ibid.
Congress's decision to authorize a beneft for “many of
America's closest allies,” ibid., did not implicitly foreclose the
Executive from imposing tighter restrictions on nationals of
certain high-risk countries. The Visa Waiver Program creates
a special exemption for citizens of countries that maintain
exemplary security standards and offer “reciprocal
[travel] privileges” to United States citizens. 8 U. S. C.
§ 1187(a)(2)(A). But in establishing a select partnership
covering less than 20% of the countries in the world, Congress
did not address what requirements should govern the
entry of nationals from the vast majority of countries that
fall short of that gold standard—particularly those nations
presenting heightened terrorism concerns. Nor did Congress
attempt to determine—as the multi-agency review
process did—whether those high-risk countries provide a
minimum baseline of information to adequately vet their naCite
as: 585 U. S. 667 (2018) 691
Opinion of the Court
tionals. Once again, this is not a situation where “Congress
has stepped into the space and solved the exact problem.”
Tr. of Oral Arg. 53.
Although plaintiffs claim that their reading preserves for
the President a fexible power to “supplement” the INA,
their understanding of the President's authority is remarkably
cramped: He may suspend entry by classes of aliens
“similar in nature” to the existing categories of inadmissibility—
but not too similar—or only in response to “some exigent
circumstance” that Congress did not already touch on
in the INA. Brief for Respondents 31, 36, 50; see also Tr.
of Oral Arg. 57 (“Presidents have wide berth in this area . . .
if there's any sort of emergency.”). In any event, no Congress
that wanted to confer on the President only a residual
authority to address emergency situations would ever use
language of the sort in § 1182(f). Fairly read, the provision
vests authority in the President to impose additional limitations
on entry beyond the grounds for exclusion set forth in
the INA—including in response to circumstances that might
affect the vetting system or other “interests of the United
States.”
Because plaintiffs do not point to any contradiction with
another provision of the INA, the President has not exceeded
his authority under § 1182(f).
2
Plaintiffs seek to locate additional limitations on the scope
of § 1182(f) in the statutory background and legislative history.
Given the clarity of the text, we need not consider
such extra-textual evidence. See State Farm Fire & Casualty
Co. v. United States ex rel. Rigsby, 580 U. S. 26, 36–37
(2016). At any rate, plaintiffs' evidence supports the plain
meaning of the provision.
Drawing on legislative debates over § 1182(f), plaintiffs
suggest that the President's suspension power should be limited
to exigencies where it would be diffcult for Congress
692 TRUMP v. HAWAII
Opinion of the Court
to react promptly. Precursor provisions enacted during the
First and Second World Wars confned the President's exclusion
authority to times of “war” and “national emergency.”
See Act of May 22, 1918, § 1(a), 40 Stat. 559; Act of June
21, 1941, ch. 210, § 1, 55 Stat. 252. When Congress enacted
§ 1182(f) in 1952, plaintiffs note, it borrowed “nearly verbatim”
from those predecessor statutes, and one of the bill's
sponsors affrmed that the provision would apply only during
a time of crisis. According to plaintiffs, it therefore follows
that Congress sought to delegate only a similarly tailored
suspension power in § 1182(f). Brief for Respondents 39–40.
If anything, the drafting history suggests the opposite.
In borrowing “nearly verbatim” from the pre-existing statute,
Congress made one critical alteration—it removed the
national emergency standard that plaintiffs now seek to reintroduce
in another form. Weighing Congress's conscious departure
from its wartime statutes against an isolated foor
statement, the departure is far more probative. See NLRB
v. SW General, Inc., 580 U. S. 288, 307 (2017) (“[F]loor statements
by individual legislators rank among the least illuminating
forms of legislative history.”). When Congress
wishes to condition an exercise of executive authority on the
President's fnding of an exigency or crisis, it knows how to
say just that. See, e. g., 16 U. S. C. § 824o–1(b); 42 U. S. C.
§ 5192; 50 U. S. C. §§ 1701, 1702. Here, Congress instead
chose to condition the President's exercise of the suspension
authority on a different fnding: that the entry of an alien or
class of aliens would be “detrimental to the interests of the
United States.”
Plaintiffs also strive to infer limitations from executive
practice. By their count, every previous suspension order
under § 1182(f) can be slotted into one of two categories.
The vast majority targeted discrete groups of foreign nationals
engaging in conduct “deemed harmful by the immigration
laws.” And the remaining entry restrictions that focused
on entire nationalities—namely, President Carter's response
to the Iran hostage crisis and President Reagan's suspension
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Opinion of the Court
of immigration from Cuba—were, in their view, designed as
a response to diplomatic emergencies “that the immigration
laws do not address.” Brief for Respondents 40–41.
Even if we were willing to confne expansive language in
light of its past applications, the historical evidence is more
equivocal than plaintiffs acknowledge. Presidents have repeatedly
suspended entry not because the covered nationals
themselves engaged in harmful acts but instead to retaliate
for conduct by their governments that conficted with U. S.
foreign policy interests. See, e. g., Exec. Order No. 13662, 3
CFR 233 (2014) (President Obama) (suspending entry of Russian
nationals working in the fnancial services, energy, mining,
engineering, or defense sectors, in light of the Russian
Federation's “annexation of Crimea and its use of force in
Ukraine”); Presidential Proclamation No. 6958, 3 CFR 133
(1997) (President Clinton) (suspending entry of Sudanese
governmental and military personnel, citing “foreign policy
interests of the United States” based on Sudan's refusal to
comply with United Nations resolution). And while some of
these reprisals were directed at subsets of aliens from the
countries at issue, others broadly suspended entry on the
basis of nationality due to ongoing diplomatic disputes. For
example, President Reagan invoked § 1182(f) to suspend
entry “as immigrants” by almost all Cuban nationals, to
apply pressure on the Cuban Government. Presidential
Proclamation No. 5517, 3 CFR 102 (1986). Plaintiffs try to
ft this latter order within their carveout for emergency action,
but the proclamation was based in part on Cuba's decision
to breach an immigration agreement some 15 months
earlier.
More significantly, plaintiffs' argument about historical
practice is a double-edged sword. The more ad hoc their
account of executive action—to ft the history into their theory—
the harder it becomes to see such a refned delegation
in a statute that grants the President sweeping authority to
decide whether to suspend entry, whose entry to suspend,
and for how long.
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C
Plaintiffs' fnal statutory argument is that the President's
entry suspension violates § 1152(a)(1)(A), which provides
that “no person shall . . . be discriminated against in the
issuance of an immigrant visa because of the person's race,
sex, nationality, place of birth, or place of residence.” They
contend that we should interpret the provision as prohibiting
nationality-based discrimination throughout the entire immigration
process, despite the reference in § 1152(a)(1)(A) to
the act of visa issuance alone. Specifcally, plaintiffs argue
that § 1152(a)(1)(A) applies to the predicate question of a visa
applicant's eligibility for admission and the subsequent question
whether the holder of a visa may in fact enter the country.
Any other conclusion, they say, would allow the President
to circumvent the protections against discrimination
enshrined in § 1152(a)(1)(A).
As an initial matter, this argument challenges only the validity
of the entry restrictions on immigrant travel. Section
1152(a)(1)(A) is expressly limited to the issuance of
“immigrant visa[s]” while § 1182(f) allows the President to
suspend entry of “immigrants or nonimmigrants.” At a
minimum, then, plaintiffs' reading would not affect any of the
limitations on nonimmigrant travel in the Proclamation.
In any event, we reject plaintiffs' interpretation because
it ignores the basic distinction between admissibility determinations
and visa issuance that runs throughout the INA.3
3 The Act is rife with examples distinguishing between the two concepts.
See, e. g., 8 U. S. C. § 1101(a)(4) (“The term `application for admission' has
reference to the application for admission into the United States and not to
the application for the issuance of an immigrant or nonimmigrant visa.”);
§ 1182(a) (“ineligible to receive visas and ineligible to be admitted”);
§ 1182(a)(3)(D)(iii) (“establishes to the satisfaction of the consular offcer
when applying for a visa . . . or to the satisfaction of the Attorney General
when applying for admission”); § 1182(h)(1)(A)(i) (“alien's application for a
visa, admission, or adjustment of status”); § 1187 (permitting entry without
a visa); § 1361 (establishing burden of proof for when a person “makes
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Opinion of the Court
Section 1182 defnes the pool of individuals who are admissible
to the United States. Its restrictions come into play at
two points in the process of gaining entry (or admission) 4
into the United States. First, any alien who is inadmissible
under § 1182 (based on, for example, health risks, criminal
history, or foreign policy consequences) is screened out as
“ineligible to receive a visa.” 8 U. S. C. § 1201(g). Second,
even if a consular offcer issues a visa, entry into the United
States is not guaranteed. As every visa application explains,
a visa does not entitle an alien to enter the United
States “if, upon arrival,” an immigration offcer determines
that the applicant is “inadmissible under this chapter, or any
other provision of law”—including § 1182(f). § 1201(h).
Sections 1182(f) and 1152(a)(1)(A) thus operate in different
spheres: Section 1182 defnes the universe of aliens who are
admissible into the United States (and therefore eligible to
receive a visa). Once § 1182 sets the boundaries of admissibility
into the United States, § 1152(a)(1)(A) prohibits discrimination
in the allocation of immigrant visas based on
nationality and other traits. The distinction between
admissibility—to which § 1152(a)(1)(A) does not apply—and
visa issuance—to which it does—is apparent from the text
of the provision, which specifes only that its protections
apply to the “issuance” of “immigrant visa[s],” without mentioning
admissibility or entry. Had Congress instead intended
in § 1152(a)(1)(A) to constrain the President's power
to determine who may enter the country, it could easily
have chosen language directed to that end. See, e. g.,
§§ 1182(a)(3)(C)(ii), (iii) (providing that certain aliens “shall
not be excludable or subject to restrictions or conditions on
entry . . . because of the alien's past, current, or expected
application for a visa . . . , or makes application for admission, or otherwise
attempts to enter the United States”).
4 The concepts of entry and admission—but not issuance of a visa—are
used interchangeably in the INA. See § 1101(a)(13)(A) (defning “admission”
as the “lawful entry of the alien into the United States”).
696 TRUMP v. HAWAII
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beliefs, statements, or associations” (emphasis added)).
“The fact that [Congress] did not adopt [a] readily available
and apparent alternative strongly supports” the conclusion
that § 1152(a)(1)(A) does not limit the President's delegated
authority under § 1182(f). Knight v. Commissioner, 552
U. S. 181, 188 (2008).
Common sense and historical practice confrm as much.
Section 1152(a)(1)(A) has never been treated as a constraint
on the criteria for admissibility in § 1182. Presidents have
repeatedly exercised their authority to suspend entry on the
basis of nationality. As noted, President Reagan relied on
§ 1182(f) to suspend entry “as immigrants by all Cuban nationals,”
subject to exceptions. Proclamation No. 5517, 51
Fed. Reg. 30470 (1986). Likewise, President Carter invoked
§ 1185(a)(1) to deny and revoke visas to all Iranian nationals.
See Exec. Order No. 12172, 3 CFR 461 (1979), as amended
by Exec. Order No. 12206, 3 CFR 249 (1980); Public Papers
of the Presidents, Jimmy Carter, Sanctions Against Iran,
Vol. 1, Apr. 7, 1980, pp. 611–612 (1980); see also n. 1, supra.
On plaintiffs' reading, those orders were beyond the President's
authority. The entry restrictions in the Proclamation
on North Korea (which plaintiffs do not challenge in this litigation)
would also be unlawful. Nor would the President be
permitted to suspend entry from particular foreign states in
response to an epidemic confned to a single region, or a verifed
terrorist threat involving nationals of a specifc foreign
nation, or even if the United States were on the brink of war.
In a reprise of their § 1182(f) argument, plaintiffs attempt
to soften their position by falling back on an implicit exception
for Presidential actions that are “closely drawn” to
address “specifc fast-breaking exigencies.” Brief for Respondents
60–61. Yet the absence of any textual basis for
such an exception more likely indicates that Congress did
not intend for § 1152(a)(1)(A) to limit the President's fexible
authority to suspend entry based on foreign policy interests.
In addition, plaintiffs' proposed exigency test would require
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courts, rather than the President, to determine whether a
foreign government's conduct rises to the level that would
trigger a supposed implicit exception to a federal statute.
See Reno v. American-Arab Anti-Discrimination Comm.,
525 U. S. 471, 491 (1999) (explaining that even if the Executive
“disclose[d] its . . . reasons for deeming nationals of a
particular country a special threat,” courts would be “unable
to assess their adequacy”). The text of § 1152(a)(1)(A) offers
no standards that would enable courts to assess, for example,
whether the situation in North Korea justifes entry restrictions
while the terrorist threat in Yemen does not.
* * *
The Proclamation is squarely within the scope of Presidential
authority under the INA. Indeed, neither dissent even
attempts any serious argument to the contrary, despite the
fact that plaintiffs' primary contention below and in their
briefng before this Court was that the Proclamation violated
the statute.
IV
A
We now turn to plaintiffs' claim that the Proclamation was
issued for the unconstitutional purpose of excluding Muslims.
Because we have an obligation to assure ourselves of jurisdiction
under Article III, we begin by addressing the question
whether plaintiffs have standing to bring their constitutional
challenge.
Federal courts have authority under the Constitution to
decide legal questions only in the course of resolving “Cases”
or “Controversies.” Art. III, § 2. One of the essential elements
of a legal case or controversy is that the plaintiff have
standing to sue. Standing requires more than just a “keen
interest in the issue.” Hollingsworth v. Perry, 570 U. S. 693,
700 (2013). It requires allegations—and, eventually, proof—
that the plaintiff “personal[ly]” suffered a concrete and particularized
injury in connection with the conduct about which
698 TRUMP v. HAWAII
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he complains. Spokeo, Inc. v. Robins, 578 U. S. 330, 339
(2016). In a case arising from an alleged violation of the
Establishment Clause, a plaintiff must show, as in other
cases, that he is “directly affected by the laws and practices
against which [his] complaints are directed.” School Dist.
of Abington Township v. Schempp, 374 U. S. 203, 224, n. 9
(1963). That is an issue here because the entry restrictions
apply not to plaintiffs themselves but to others seeking to
enter the United States.
Plaintiffs frst argue that they have standing on the
ground that the Proclamation “establishes a disfavored faith”
and violates “their own right to be free from federal [religious]
establishments.” Brief for Respondents 27–28 (emphasis
deleted). They describe such injury as “spiritual and
dignitary.” Id., at 29.
We need not decide whether the claimed dignitary interest
establishes an adequate ground for standing. The three individual
plaintiffs assert another, more concrete injury: the
alleged real-world effect that the Proclamation has had in
keeping them separated from certain relatives who seek to
enter the country. See ibid.; Town of Chester v. Laroe Estates,
Inc., 581 U. S. 433, 439 (2017) (“At least one plaintiff
must have standing to seek each form of relief requested in
the complaint.”). We agree that a person's interest in being
united with his relatives is suffciently concrete and particularized
to form the basis of an Article III injury in fact.
This Court has previously considered the merits of claims
asserted by United States citizens regarding violations of
their personal rights allegedly caused by the Government's
exclusion of particular foreign nationals. See Kerry v. Din,
576 U. S. 86, 101 (2015) (plurality opinion); id., at 102 (Kennedy,
J., concurring in judgment); Kleindienst v. Mandel,
408 U. S. 753, 762 (1972). Likewise, one of our prior stay
orders in this litigation recognized that an American individual
who has “a bona fde relationship with a particular
person seeking to enter the country . . . can legitimately
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claim concrete hardship if that person is excluded.” Trump
v. IRAP, 582 U. S., at 583.
The Government responds that plaintiffs' Establishment
Clause claims are not justiciable because the Clause does not
give them a legally protected interest in the admission of
particular foreign nationals. But that argument—which depends
upon the scope of plaintiffs' Establishment Clause
rights—concerns the merits rather than the justiciability of
plaintiffs' claims. We therefore conclude that the individual
plaintiffs have Article III standing to challenge the exclusion
of their relatives under the Establishment Clause.
B
The First Amendment provides, in part, that “Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.” Our cases recognize
that “[t]he clearest command of the Establishment Clause is
that one religious denomination cannot be offcially preferred
over another.” Larson v. Valente, 456 U. S. 228, 244 (1982).
Plaintiffs believe that the Proclamation violates this prohibition
by singling out Muslims for disfavored treatment. The
entry suspension, they contend, operates as a “religious gerrymander,”
in part because most of the countries covered by
the Proclamation have Muslim-majority populations. And
in their view, deviations from the information-sharing baseline
criteria suggest that the results of the multi-agency
review were “foreordained.” Relying on Establishment
Clause precedents concerning laws and policies applied domestically,
plaintiffs allege that the primary purpose of the
Proclamation was religious animus and that the President's
stated concerns about vetting protocols and national security
were but pretexts for discriminating against Muslims.
Brief for Respondents 69–73.
At the heart of plaintiffs' case is a series of statements by
the President and his advisers casting doubt on the offcial
objective of the Proclamation. For example, while a candi700
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date on the campaign trail, the President published a “Statement
on Preventing Muslim Immigration” that called for a
“total and complete shutdown of Muslims entering the
United States until our country's representatives can fgure
out what is going on.” App. 158. That statement remained
on his campaign website until May 2017. Id., at 130–131.
Then-candidate Trump also stated that “Islam hates us” and
asserted that the United States was “having problems with
Muslims coming into the country.” Id., at 120–121, 159.
Shortly after being elected, when asked whether violence in
Europe had affected his plans to “ban Muslim immigration,”
the President replied, “You know my plans. All along, I've
been proven to be right.” Id., at 123.
One week after his inauguration, the President issued
EO–1. In a television interview, one of the President's campaign
advisers explained that when the President “frst announced
it, he said, `Muslim ban.' He called me up. He
said, `Put a commission together. Show me the right way to
do it legally.' ” Id., at 125. The adviser said he assembled
a group of Members of Congress and lawyers that “focused
on, instead of religion, danger. . . . [The order] is based on
places where there [is] substantial evidence that people are
sending terrorists into our country.” Id., at 229.
Plaintiffs also note that after issuing EO–2 to replace EO–
1, the President expressed regret that his prior order had
been “watered down” and called for a “much tougher version”
of his “Travel Ban.” Shortly before the release of the
Proclamation, he stated that the “travel ban . . . should be
far larger, tougher, and more specifc,” but “stupidly that
would not be politically correct.” Id., at 132–133. More recently,
on November 29, 2017, the President retweeted links
to three anti-Muslim propaganda videos. In response to
questions about those videos, the President's deputy press
secretary denied that the President thinks Muslims are a
threat to the United States, explaining that “the President
has been talking about these security issues for years now,
Cite as: 585 U. S. 667 (2018) 701
Opinion of the Court
from the campaign trail to the White House” and “has addressed
these issues with the travel order that he issued earlier
this year and the companion proclamation.” IRAP v.
Trump, 883 F. 3d 233, 267 (CA4 2018).
The President of the United States possesses an extraordinary
power to speak to his fellow citizens and on their behalf.
Our Presidents have frequently used that power to espouse
the principles of religious freedom and tolerance on which
this Nation was founded. In 1790 George Washington reassured
the Hebrew Congregation of Newport, Rhode Island,
that “happily the Government of the United States . . . gives
to bigotry no sanction, to persecution no assistance [and] requires
only that they who live under its protection should
demean themselves as good citizens.” 6 Papers of George
Washington 285 (D. Twohig ed. 1996). President Eisenhower,
at the opening of the Islamic Center of Washington,
similarly pledged to a Muslim audience that “America would
fght with her whole strength for your right to have here
your own church,” declaring that “[t]his concept is indeed a
part of America.” Public Papers of the Presidents, Dwight
D. Eisenhower, June 28, 1957, p. 509 (1957). And just days
after the attacks of September 11, 2001, President George
W. Bush returned to the same Islamic Center to implore his
fellow Americans—Muslims and non-Muslims alike—to remember
during their time of grief that “[t]he face of terror
is not the true faith of Islam,” and that America is “a great
country because we share the same values of respect and
dignity and human worth.” Public Papers of the Presidents,
George W. Bush, Vol. 2, Sept. 17, 2001, p. 1121 (2001). Yet
it cannot be denied that the Federal Government and the
Presidents who have carried its laws into effect have—from
the Nation's earliest days—performed unevenly in living up
to those inspiring words.
Plaintiffs argue that this President's words strike at fundamental
standards of respect and tolerance, in violation of
our constitutional tradition. But the issue before us is not
702 TRUMP v. HAWAII
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whether to denounce the statements. It is instead the signifcance
of those statements in reviewing a Presidential directive,
neutral on its face, addressing a matter within the
core of executive responsibility. In doing so, we must consider
not only the statements of a particular President, but
also the authority of the Presidency itself.
The case before us differs in numerous respects from the
conventional Establishment Clause claim. Unlike the typical
suit involving religious displays or school prayer, plaintiffs
seek to invalidate a national security directive regulating
the entry of aliens abroad. Their claim accordingly
raises a number of delicate issues regarding the scope of the
constitutional right and the manner of proof. The Proclamation,
moreover, is facially neutral toward religion. Plaintiffs
therefore ask the Court to probe the sincerity of the stated
justifcations for the policy by reference to extrinsic statements—
many of which were made before the President took
the oath of offce. These various aspects of plaintiffs' challenge
inform our standard of review.
C
For more than a century, this Court has recognized that
the admission and exclusion of foreign nationals is a “fundamental
sovereign attribute exercised by the Government's
political departments largely immune from judicial control.”
Fiallo v. Bell, 430 U. S. 787, 792 (1977); see Harisiades v.
Shaughnessy, 342 U. S. 580, 588–589 (1952) (“[A]ny policy toward
aliens is vitally and intricately interwoven with contemporaneous
policies in regard to the conduct of foreign relations
[and] the war power.”). Because decisions in these
matters may implicate “relations with foreign powers,” or
involve “classifcations . . . defned in the light of changing
political and economic circumstances,” such judgments “are
frequently of a character more appropriate to either the Legislature
or the Executive.” Mathews v. Diaz, 426 U. S. 67,
81 (1976).
Cite as: 585 U. S. 667 (2018) 703
Opinion of the Court
Nonetheless, although foreign nationals seeking admission
have no constitutional right to entry, this Court has engaged
in a circumscribed judicial inquiry when the denial of a visa
allegedly burdens the constitutional rights of a U. S. citizen.
In Kleindienst v. Mandel, the Attorney General denied admission
to a Belgian journalist and self-described “revolutionary
Marxist,” Ernest Mandel, who had been invited to
speak at a conference at Stanford University. 408 U. S., at
756–757. The professors who wished to hear Mandel speak
challenged that decision under the First Amendment, and
we acknowledged that their constitutional “right to receive
information” was implicated. Id., at 764–765. But we limited
our review to whether the Executive gave a “facially
legitimate and bona fde” reason for its action. Id., at 769.
Given the authority of the political branches over admission,
we held that “when the Executive exercises this [delegated]
power negatively on the basis of a facially legitimate and
bona fde reason, the courts will neither look behind the exercise
of that discretion, nor test it by balancing its justifcation”
against the asserted constitutional interests of U. S. citizens.
Id., at 770.
The principal dissent suggests that Mandel has no bearing
on this case, post, at 740–741, and n. 5 (opinion of Sotomayor,
J.) (hereinafter the dissent), but our opinions have reaffrmed
and applied its deferential standard of review across different
contexts and constitutional claims. In Din, Justice
Kennedy reiterated that “respect for the political branches'
broad power over the creation and administration of the immigration
system” meant that the Government need provide
only a statutory citation to explain a visa denial. 576 U. S.,
at 106 (opinion concurring in judgment). Likewise in Fiallo,
we applied Mandel to a “broad congressional policy”
giving immigration preferences to mothers of illegitimate
children. 430 U. S., at 795. Even though the statute created
a “categorical” entry classifcation that discriminated on
the basis of sex and legitimacy, post, at 740–741, n. 5, the Court
704 TRUMP v. HAWAII
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concluded that “it is not the judicial role in cases of this sort
to probe and test the justifcations” of immigration policies.
430 U. S., at 799 (citing Mandel, 408 U. S., at 770). Lower
courts have similarly applied Mandel to broad executive action.
See Rajah v. Mukasey, 544 F. 3d 427, 433, 438–439
(CA2 2008) (upholding National Security Entry-Exit Registration
System instituted after September 11, 2001).
Mandel's narrow standard of review “has particular force”
in admission and immigration cases that overlap with “the
area of national security.” Din, 576 U. S., at 104 (Kennedy,
J., concurring in judgment). For one, “[ j]udicial inquiry
into the national-security realm raises concerns for the
separation of powers” by intruding on the President's constitutional
responsibilities in the area of foreign affairs.
Ziglar v. Abbasi, 582 U. S. 120, 142 (2017) (internal quotation
marks omitted). For another, “when it comes to collecting
evidence and drawing inferences” on questions of national
security, “the lack of competence on the part of the courts is
marked.” Humanitarian Law Project, 561 U. S., at 34.
The upshot of our cases in this context is clear: “Any rule
of constitutional law that would inhibit the fexibility” of the
President “to respond to changing world conditions should
be adopted only with the greatest caution,” and our inquiry
into matters of entry and national security is highly constrained.
Mathews, 426 U. S., at 81–82. We need not defne
the precise contours of that inquiry in this case. A conventional
application of Mandel, asking only whether the policy
is facially legitimate and bona fde, would put an end to our
review. But the Government has suggested that it may be
appropriate here for the inquiry to extend beyond the facial
neutrality of the order. See Tr. of Oral Arg. 16–17, 25–27
(describing Mandel as “the starting point” of the analysis).
For our purposes today, we assume that we may look behind
the face of the Proclamation to the extent of applying rational
basis review. That standard of review considers
whether the entry policy is plausibly related to the GovernCite
as: 585 U. S. 667 (2018) 705
Opinion of the Court
ment's stated objective to protect the country and improve
vetting processes. See Railroad Retirement Bd. v. Fritz,
449 U. S. 166, 179 (1980). As a result, we may consider
plaintiffs' extrinsic evidence, but will uphold the policy so
long as it can reasonably be understood to result from a justifcation
independent of unconstitutional grounds.5
D
Given the standard of review, it should come as no surprise
that the Court hardly ever strikes down a policy as illegitimate
under rational basis scrutiny. On the few occasions
where we have done so, a common thread has been that the
laws at issue lack any purpose other than a “bare . . . desire
to harm a politically unpopular group.” Department of
Agriculture v. Moreno, 413 U. S. 528, 534 (1973). In one
case, we invalidated a local zoning ordinance that required a
special permit for group homes for the intellectually disabled,
but not for other facilities such as fraternity houses or
hospitals. We did so on the ground that the city's stated
concerns about (among other things) “legal responsibility”
and “crowded conditions” rested on “an irrational prejudice”
against the intellectually disabled. Cleburne v. Cleburne
Living Center, Inc., 473 U. S. 432, 448–450 (1985) (internal
quotation marks omitted). And in another case, this Court
5 The dissent fnds “perplexing” the application of rational basis review
in this context. Post, at 741. But what is far more problematic is the
dissent's assumption that courts should review immigration policies, diplomatic
sanctions, and military actions under the de novo “reasonable observer”
inquiry applicable to cases involving holiday displays and graduation
ceremonies. The dissent criticizes application of a more constrained
standard of review as “throw[ing] the Establishment Clause out the window.”
Post, at 742, n. 6. But as the numerous precedents cited in this
section make clear, such a circumscribed inquiry applies to any constitutional
claim concerning the entry of foreign nationals. See Part IV–C,
supra. The dissent can cite no authority for its proposition that the more
free-ranging inquiry it proposes is appropriate in the national security and
foreign affairs context.
706 TRUMP v. HAWAII
Opinion of the Court
overturned a state constitutional amendment that denied
gays and lesbians access to the protection of antidiscrimination
laws. The amendment, we held, was “divorced from
any factual context from which we could discern a relationship
to legitimate state interests,” and “its sheer breadth
[was] so discontinuous with the reasons offered for it” that
the initiative seemed “inexplicable by anything but animus.”
Romer v. Evans, 517 U. S. 620, 632, 635 (1996).
The Proclamation does not ft this pattern. It cannot be
said that it is impossible to “discern a relationship to legitimate
state interests” or that the policy is “inexplicable by
anything but animus.” Indeed, the dissent can only attempt
to argue otherwise by refusing to apply anything resembling
rational basis review. But because there is persuasive evidence
that the entry suspension has a legitimate grounding
in national security concerns, quite apart from any religious
hostility, we must accept that independent justifcation.
The Proclamation is expressly premised on legitimate purposes:
preventing entry of nationals who cannot be adequately
vetted and inducing other nations to improve their
practices. The text says nothing about religion. Plaintiffs
and the dissent nonetheless emphasize that fve of the seven
nations currently included in the Proclamation have Muslimmajority
populations. Yet that fact alone does not support
an inference of religious hostility, given that the policy covers
just 8% of the world's Muslim population and is limited
to countries that were previously designated by Congress or
prior administrations as posing national security risks. See
8 U. S. C. § 1187(a)(12)(A) (identifying Syria and state sponsors
of terrorism such as Iran as “countr[ies] or area[s] of
concern” for purposes of administering the Visa Waiver Program);
Dept. of Homeland Security, DHS Announces Further
Travel Restrictions for the Visa Waiver Program (Feb. 18,
2016) (designating Libya, Somalia, and Yemen as additional
countries of concern); see also Rajah, 544 F. 3d, at 433, n. 3
Cite as: 585 U. S. 667 (2018) 707
Opinion of the Court
(describing how nonimmigrant aliens from Iran, Libya, Somalia,
Syria, and Yemen were covered by the National Security
Entry-Exit Registration System).
The Proclamation, moreover, refects the results of a
worldwide review process undertaken by multiple Cabinet
offcials and their agencies. Plaintiffs seek to discredit the
fndings of the review, pointing to deviations from the review's
baseline criteria resulting in the inclusion of Somalia
and omission of Iraq. But as the Proclamation explains, in
each case the determinations were justifed by the distinct
conditions in each country. Although Somalia generally
satisfes the information-sharing component of the baseline
criteria, it “stands apart . . . in the degree to which [it]
lacks command and control of its territory.” Proclamation
§ 2(h)(i). As for Iraq, the Secretary of Homeland Security
determined that entry restrictions were not warranted in
light of the close cooperative relationship between the U. S.
and Iraqi Governments and the country's key role in combating
terrorism in the region. § 1(g). It is, in any event, diffcult
to see how exempting one of the largest predominantly
Muslim countries in the region from coverage under the
Proclamation can be cited as evidence of animus toward
Muslims.
The dissent likewise doubts the thoroughness of the multiagency
review because a recent Freedom of Information Act
request shows that the fnal DHS report “was a mere 17
pages.” Post, at 746. Yet a simple page count offers little
insight into the actual substance of the fnal report, much
less predecisional materials underlying it. See 5 U. S. C.
§ 552(b)(5) (exempting deliberative materials from FOIA
disclosure).
More fundamentally, plaintiffs and the dissent challenge
the entry suspension based on their perception of its effectiveness
and wisdom. They suggest that the policy is overbroad
and does little to serve national security interests.
708 TRUMP v. HAWAII
Opinion of the Court
But we cannot substitute our own assessment for the Executive's
predictive judgments on such matters, all of which “are
delicate, complex, and involve large elements of prophecy.”
Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp.,
333 U. S. 103, 111 (1948); see also Regan v. Wald, 468 U. S.
222, 242–243 (1984) (declining invitation to conduct an “independent
foreign policy analysis”). While we of course “do
not defer to the Government's reading of the First Amendment,”
the Executive's evaluation of the underlying facts is
entitled to appropriate weight, particularly in the context of
litigation involving “sensitive and weighty interests of national
security and foreign affairs.” Humanitarian Law
Project, 561 U. S., at 33–34.6
Three additional features of the entry policy support the
Government's claim of a legitimate national security interest.
First, since the President introduced entry restrictions in
January 2017, three Muslim-majority countries—Iraq,
Sudan, and Chad—have been removed from the list of covered
countries. The Proclamation emphasizes that its “conditional
restrictions” will remain in force only so long as necessary
to “address” the identifed “inadequacies and risks,”
Proclamation Preamble, and § 1(h), and establishes an ongoing
process to engage covered nations and assess every 180
days whether the entry restrictions should be terminated,
§§ 4(a), (b). In fact, in announcing the termination of restrictions
on nationals of Chad, the President also described Libya's
ongoing engagement with the State Department and the
6 The dissent recycles much of plaintiffs' § 1182(f ) argument to assert
that “Congress has already erected a statutory scheme that fulflls” the
President's stated concern about defcient vetting. Post, at 746–748. But
for the reasons set forth earlier, Congress has not in any sense “stepped
into the space and solved the exact problem.” Tr. of Oral Arg. 53. Neither
the existing inadmissibility grounds nor the narrow Visa Waiver Program
address the failure of certain high-risk countries to provide a minimum
baseline of reliable information. See Part III–B–1, supra.
Cite as: 585 U. S. 667 (2018) 709
Opinion of the Court
steps Libya is taking “to improve its practices.” Proclamation
No. 9723, 83 Fed. Reg. 15939.
Second, for those countries that remain subject to entry
restrictions, the Proclamation includes signifcant exceptions
for various categories of foreign nationals. The policy permits
nationals from nearly every covered country to travel
to the United States on a variety of nonimmigrant visas.
See, e. g., §§ 2(b)–(c), (g), (h) (permitting student and exchange
visitors from Iran, while restricting only business
and tourist nonimmigrant entry for nationals of Libya and
Yemen, and imposing no restrictions on nonimmigrant entry
for Somali nationals). These carveouts for nonimmigrant
visas are substantial: Over the last three fscal years—before
the Proclamation was in effect—the majority of visas issued
to nationals from the covered countries were nonimmigrant
visas. Brief for Petitioners 57. The Proclamation also exempts
permanent residents and individuals who have been
granted asylum. §§ 3(b)(i), (vi).
Third, the Proclamation creates a waiver program open to
all covered foreign nationals seeking entry as immigrants
or nonimmigrants. According to the Proclamation, consular
offcers are to consider in each admissibility determination
whether the alien demonstrates that (1) denying entry would
cause undue hardship; (2) entry would not pose a threat to
public safety; and (3) entry would be in the interest of the
United States. § 3(c)(i); see also § 3(c)(iv) (listing examples
of when a waiver might be appropriate, such as if the foreign
national seeks to reside with a close family member, obtain
urgent medical care, or pursue signifcant business obligations).
On its face, this program is similar to the humanitarian
exceptions set forth in President Carter's order during
the Iran hostage crisis. See Exec. Order No. 12206, 3 CFR
249; Public Papers of the Presidents, Jimmy Carter, Sanctions
Against Iran, at 611–612 (1980) (outlining exceptions).
The Proclamation also directs DHS and the State Depart710
TRUMP v. HAWAII
Opinion of the Court
ment to issue guidance elaborating upon the circumstances
that would justify a waiver.7
Finally, the dissent invokes Korematsu v. United States,
323 U. S. 214 (1944). Whatever rhetorical advantage the
dissent may see in doing so, Korematsu has nothing to do
with this case. The forcible relocation of U. S. citizens to
concentration camps, solely and explicitly on the basis of
race, is objectively unlawful and outside the scope of Presidential
authority. But it is wholly inapt to liken that morally
repugnant order to a facially neutral policy denying certain
foreign nationals the privilege of admission. See post,
at 752–754. The entry suspension is an act that is well
within executive authority and could have been taken by any
other President—the only question is evaluating the actions
of this particular President in promulgating an otherwise
valid Proclamation.
The dissent's reference to Korematsu, however, affords
this Court the opportunity to make express what is already
obvious: Korematsu was gravely wrong the day it was decided,
has been overruled in the court of history, and—to be
clear—“has no place in law under the Constitution.” 323
U. S., at 248 (Jackson, J., dissenting).
* * *
Under these circumstances, the Government has set forth
a suffcient national security justifcation to survive rational
basis review. We express no view on the soundness of the
policy. We simply hold today that plaintiffs have not demonstrated
a likelihood of success on the merits of their constitutional
claim.
7 Justice Breyer focuses on only one aspect of our consideration—
the waiver program and other exemptions in the Proclamation. Citing
selective statistics, anecdotal evidence, and a declaration from unrelated
litigation, Justice Breyer suggests that not enough individuals are receiving
waivers or exemptions. Post, at 723–728 (dissenting opinion).
Yet even if such an inquiry were appropriate under rational basis review,
the evidence he cites provides “but a piece of the picture,” post, at 726,
and does not affect our analysis.
Cite as: 585 U. S. 667 (2018) 711
Kennedy, J., concurring
V
Because plaintiffs have not shown that they are likely to
succeed on the merits of their claims, we reverse the grant
of the preliminary injunction as an abuse of discretion.
Winter v. Natural Resources Defense Council, Inc., 555 U. S.
7, 32 (2008). The case now returns to the lower courts for
such further proceedings as may be appropriate. Our disposition
of the case makes it unnecessary to consider the propriety
of the nationwide scope of the injunction issued by
the District Court.
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 Kennedy, concurring.
I join the Court's opinion in full.
There may be some common ground between the opinions
in this case, in that the Court does acknowledge that in some
instances, governmental action may be subject to judicial review
to determine whether or not it is “inexplicable by anything
but animus,” Romer v. Evans, 517 U. S. 620, 632 (1996),
which in this case would be animosity to a religion.
Whether judicial proceedings may properly continue in this
case, in light of the substantial deference that is and must be
accorded to the Executive in the conduct of foreign affairs,
and in light of today's decision, is a matter to be addressed
in the frst instance on remand. And even if further proceedings
are permitted, it would be necessary to determine
that any discovery and other preliminary matters would not
themselves intrude on the foreign affairs power of the
Executive.
In all events, it is appropriate to make this further observation.
There are numerous instances in which the statements
and actions of Government offcials are not subject to
judicial scrutiny or intervention. That does not mean those
offcials are free to disregard the Constitution and the rights
712 TRUMP v. HAWAII
Thomas, J., concurring
it proclaims and protects. The oath that all offcials take to
adhere to the Constitution is not confned to those spheres
in which the Judiciary can correct or even comment upon
what those offcials say or do. Indeed, the very fact that an
offcial may have broad discretion, discretion free from judicial
scrutiny, makes it all the more imperative for him or
her to adhere to the Constitution and to its meaning and
its promise.
The First Amendment prohibits the establishment of religion
and promises the free exercise of religion. From these
safeguards, and from the guarantee of freedom of speech, it
follows there is freedom of belief and expression. It is an
urgent necessity that offcials adhere to these constitutional
guarantees and mandates in all their actions, even in the
sphere of foreign affairs. An anxious world must know that
our Government remains committed always to the liberties
the Constitution seeks to preserve and protect, so that freedom
extends outward, and lasts.
Justice Thomas, concurring.
I join the Court's opinion, which highlights just a few of
the many problems with the plaintiffs' claims. There are
several more. Section 1182(f) does not set forth any judicially
enforceable limits that constrain the President. See
Webster v. Doe, 486 U. S. 592, 600 (1988). Nor could it, since
the President has inherent authority to exclude aliens from
the country. See United States ex rel. Knauff v. Shaughnessy,
338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya,
584 U. S. 148, 217–218 (2018) (Thomas, J., dissenting).
Further, the Establishment Clause does not create an individual
right to be free from all laws that a “reasonable observer”
views as religious or antireligious. See Town of
Greece v. Galloway, 572 U. S. 565, 609 (2014) (Thomas, J.,
concurring in part and concurring in judgment); Elk Grove
Uni fied School Dist. v. Newdow, 542 U. S. 1, 52–53
(2004) (Thomas, J., concurring in judgment). The plaintiffs
cannot raise any other First Amendment claim, since the alCite
as: 585 U. S. 667 (2018) 713
Thomas, J., concurring
leged religious discrimination in this case was directed at
aliens abroad. See United States v. Verdugo-Urquidez, 494
U. S. 259, 265 (1990). And, even on its own terms, the plaintiffs'
proffered evidence of anti-Muslim discrimination is
unpersuasive.
Merits aside, I write separately to address the remedy
that the plaintiffs sought and obtained in this case. The
District Court imposed an injunction that barred the Government
from enforcing the President's Proclamation against
anyone, not just the plaintiffs. Injunctions that prohibit the
Executive Branch from applying a law or policy against anyone—
often called “universal” or “nationwide” injunctions—
have become increasingly common.1 District courts, including
the one here, have begun imposing universal injunctions
without considering their authority to grant such sweeping
relief. These injunctions are beginning to take a toll on the
federal court system—preventing legal questions from percolating
through the federal courts, encouraging forum shopping,
and making every case a national emergency for the
courts and for the Executive Branch.
I am skeptical that district courts have the authority
to enter universal injunctions. These injunctions did not
emerge until a century and a half after the founding. And
they appear to be inconsistent with longstanding limits on
equitable relief and the power of Article III courts. If their
popularity continues, this Court must address their legality.
I
If district courts have any authority to issue universal injunctions,
that authority must come from a statute or the
1 “Nationwide injunctions” is perhaps the more common term. But I
use the term “universal injunctions” in this opinion because it is more
precise. These injunctions are distinctive because they prohibit the Government
from enforcing a policy with respect to anyone, including nonparties—
not because they have wide geographic breadth. An injunction that
was properly limited to the plaintiffs in the case would not be invalid
simply because it governed the defendant's conduct nationwide.
714 TRUMP v. HAWAII
Thomas, J., concurring
Constitution. See Missouri v. Jenkins, 515 U. S. 70, 124
(1995) (Thomas, J., concurring). No statute expressly
grants district courts the power to issue universal injunctions.
2 So the only possible bases for these injunctions are a
generic statute that authorizes equitable relief or the courts'
inherent constitutional authority. Neither of those sources
would permit a form of injunctive relief that is “[in]consistent
with our history and traditions.” Ibid.
A
This Court has never treated general statutory grants of
equitable authority as giving federal courts a freewheeling
power to fashion new forms of equitable remedies. Rather,
it has read such statutes as constrained by “the body of law
which had been transplanted to this country from the English
Court of Chancery” in 1789. Guaranty Trust Co. v.
York, 326 U. S. 99, 105 (1945). As Justice Story explained,
this Court's “settled doctrine” under such statutes is that
“the remedies in equity are to be administered . . . according
to the practice of courts of equity in [England].” Boyle v.
Zacharie & Turner, 6 Pet. 648, 658 (1832). More recently,
this Court reiterated that broad statutory grants of equitable
authority give federal courts “ `an authority to administer
in equity suits the principles of the system of judicial remedies
which had been devised and was being administered by
the English Court of Chancery at the time of the separation
of the two countries.' ” Grupo Mexicano de Desarrollo,
S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 318 (1999)
(Scalia, J., for the Court) (quoting Atlas Life Ins. Co. v. W. I.
Southern, Inc., 306 U. S. 563, 568 (1939)).
2 Even if Congress someday enacted a statute that clearly and expressly
authorized universal injunctions, courts would need to consider whether
that statute complies with the limits that Article III places on the authority
of federal courts. See infra, at 718–719.
Cite as: 585 U. S. 667 (2018) 715
Thomas, J., concurring
B
The same is true of the courts' inherent constitutional authority
to grant equitable relief, assuming any such authority
exists. See Jenkins, 515 U. S., at 124 (Thomas, J., concurring).
This authority is also limited by the traditional rules
of equity that existed at the founding.
The scope of the federal courts' equitable authority under
the Constitution was a point of contention at the founding,
and the “more limited construction” of that power prevailed.
Id., at 126. The founding generation viewed equity “with
suspicion.” Id., at 128. Several Anti-Federalists criticized
the Constitution's extension of the federal judicial power to
“Case[s] in . . . Equity,” Art. III, § 2, as “giv[ing] the judge a
discretionary power.” Letters from The Federal Farmer
No. XV (Jan. 18, 1788), in 2 The Complete Anti-Federalist
315, 322 (H. Storing ed. 1981). That discretionary power,
the Anti-Federalists alleged, would allow courts to “explain
the constitution according to the reasoning spirit of it, without
being confned to the words or letter.” Essays of Brutus
No. XI (Jan. 31, 1788), in id., at 417, 419–420. The Federalists
responded to this concern by emphasizing the limited
nature of equity. Hamilton explained that the judiciary
would be “bound down by strict rules and precedents which
serve to defne and point out their duty in every particular
case that comes before them.” The Federalist No. 78, p. 471
(C. Rossiter ed. 1961) (Federalist). Although the purpose of
a court of equity was “to give relief in extraordinary cases,
which are exceptions to general rules,” “the principles by
which that relief is governed are now reduced to a regular
system.” Id., No. 83, at 505, and n. (emphasis deleted).
The Federalists' explanation was consistent with how equity
worked in 18th-century England. English courts of equity
applied established rules not only when they decided
the merits, but also when they fashioned remedies. Like
other aspects of equity, “the system of relief administered
716 TRUMP v. HAWAII
Thomas, J., concurring
by a court of equity” had been reduced “into a regular science.”
3 W. Blackstone, Commentaries on the Laws of England
440–441 (1768) (Blackstone). As early as 1768, Blackstone
could state that the “remedy a suitor is entitled to
expect” could be determined “as readily and with as much
precision, in a court of equity as in a court of law.” Id., at
441. Although courts of equity exercised remedial “discretion,”
that discretion allowed them to deny or tailor a remedy
despite a demonstrated violation of a right, not to expand
a remedy beyond its traditional scope. See G. Keeton,
An Introduction to Equity 117–118 (1938).
In short, whether the authority comes from a statute or
the Constitution, district courts' authority to provide equitable
relief is meaningfully constrained. This authority must
comply with longstanding principles of equity that predate
this country's founding.
II
Universal injunctions do not seem to comply with those
principles. These injunctions are a recent development,
emerging for the frst time in the 1960s and dramatically
increasing in popularity only very recently. And they appear
to confict with several traditional rules of equity, as
well as the original understanding of the judicial role.
Equity originated in England as a means for the Crown to
dispense justice by exercising its sovereign authority. See
Adams, The Origin of English Equity, 16 Colum. L. Rev. 87,
91 (1916). Petitions for equitable relief were referred to the
Chancellor, who oversaw cases in equity. See 1 S. Symons,
Pomeroy's Equity Jurisprudence § 33 (5th ed. 1941) (Pomeroy);
G. McDowell, Equity and the Constitution 24 (1982).
The Chancellor's equitable jurisdiction was based on the “reserve
of justice in the king.” F. Maitland, Equity 3 (rev.
2d ed. 1936); see also 1 Pomeroy § 33, at 38 (describing the
Chancellor's equitable authority as an “extraordinary jurisdiction—
that of Grace—by delegation” from the King). Equity
allowed the sovereign to afford discretionary relief to
Cite as: 585 U. S. 667 (2018) 717
Thomas, J., concurring
parties where relief would not have been available under the
“rigors of the common law.” Jenkins, supra, at 127 (opinion
of Thomas, J.).
The English system of equity did not contemplate universal
injunctions. As an agent of the King, the Chancellor had
no authority to enjoin him. See Bray, Multiple Chancellors:
Reforming the National Injunction, 131 Harv. L. Rev. 417,
425 (2017) (Bray). The Chancellor could not give “any relief
against the king, or direct any act to be done by him, or
make any decree disposing of or affecting his property; not
even in cases where he is a royal trustee.” 3 Blackstone
428. The Attorney General could be sued in Chancery, but
not in cases that “ `immediately concerned' ” the interests of
the Crown. Bray 425 (citing 1 E. Daniell, The Practice of
the High Court of Chancery 138 (2d ed. 1845)). American
courts inherited this tradition. See J. Story, Commentaries
on Equity Pleadings § 69 (1838) (Story).
Moreover, as a general rule, American courts of equity did
not provide relief beyond the parties to the case. If their
injunctions advantaged nonparties, that beneft was merely
incidental. Injunctions barring public nuisances were an
example. While these injunctions benefted third parties,
that beneft was merely a consequence of providing relief to
the plaintiff. Woolhandler & Nelson, Does History Defeat
Standing Doctrine? 102 Mich. L. Rev. 689, 702 (2004) (Woolhandler
& Nelson); see Pennsylvania v. Wheeling & Belmont
Bridge Co., 13 How. 518, 564 (1852) (explaining that a
private “injury makes [a public nuisance] a private nuisance
to the injured party”).
True, one of the recognized bases for an exercise of equitable
power was the avoidance of “multiplicity of suits.” Bray
426; accord, 1 Pomeroy § 243. Courts would employ “bills of
peace” to consider and resolve a number of suits in a single
proceeding. Id., § 246. And some authorities stated that
these suits could be fled by one plaintiff on behalf of a number
of others. Id., § 251. But the “general rule” was that
718 TRUMP v. HAWAII
Thomas, J., concurring
“all persons materially interested . . . in the subject-matter
of a suit, are to be made parties to it . . . , however numerous
they may be, so that there may be a complete decree, which
shall bind them all.” Story § 72, at 61 (emphasis added).
And, in all events, these “proto-class action[s]” were limited
to a small group of similarly situated plaintiffs having some
right in common. Bray 426–427; see also Story § 120, at 100
(explaining that such suits were “always” based on “a common
interest or a common right”).
American courts' tradition of providing equitable relief
only to parties was consistent with their view of the nature
of judicial power. For most of our history, courts understood
judicial power as “fundamentall[y] the power to render
judgments in individual cases. ” Murphy v. National
Collegiate Athletic Assn., 584 U. S. 453, 488 (2018) (Thomas,
J., concurring). They did not believe that courts could make
federal policy, and they did not view judicial review in terms
of “striking down” laws or regulations. See id., at 488–489.
Misuses of judicial power, Hamilton reassured the people of
New York, could not threaten “the general liberty of the
people” because courts, at most, adjudicate the rights of “individual[
s].” Federalist No. 78, at 466.
The judiciary's limited role was also refected in this
Court's decisions about who could sue to vindicate certain
rights. See Spokeo, Inc. v. Robins, 578 U. S. 330, 344–346
(2016) (Thomas, J., concurring). A plaintiff could not bring
a suit vindicating public rights—i. e., rights held by the community
at large—without a showing of some specifc injury
to himself. Id., at 345–346. And a plaintiff could not sue
to vindicate the private rights of someone else. See Woolhandler
& Nelson 715–716. Such claims were considered to
be beyond the authority of courts. Id., at 711–717.
This Court has long respected these traditional limits on
equity and judicial power. See, e. g., Scott v. Donald, 165
U. S. 107, 115 (1897) (rejecting an injunction based on the
theory that the plaintiff “so represents [a] class” whose
rights were infringed by a statute as “too conjectural to furCite
as: 585 U. S. 667 (2018) 719
Thomas, J., concurring
nish a safe basis upon which a court of equity ought to grant
an injunction”). Take, for example, this Court's decision in
Massachusetts v. Mellon, 262 U. S. 447 (1923). There, a taxpayer
sought to enjoin the enforcement of an appropriation
statute. The Court noted that this kind of dispute “is essentially
a matter of public and not of individual concern.”
Id., at 487. A general interest in enjoining implementation
of an illegal law, this Court explained, provides “no basis
. . . for an appeal to the preventive powers of a court of
equity.” Ibid. Courts can review the constitutionality of
an act only when “a justiciable issue” requires it to decide
whether to “disregard an unconstitutional enactment.” Id.,
at 488. If the statute is unconstitutional, then courts enjoin
“not the execution of the statute, but the acts of the offcial.”
Ibid. Courts cannot issue an injunction based on a mere
allegation “that offcials of the executive department of the
government are executing and will execute an act of Congress
asserted to be unconstitutional.” Ibid. “To do so
would be not to decide a judicial controversy.” Id., at 488–
489.
By the latter half of the 20th century, however, some jurists
began to conceive of the judicial role in terms of resolving
general questions of legality, instead of addressing those
questions only insofar as they are necessary to resolve individual
cases and controversies. See Bray 451. That is
when what appears to be “the frst [universal] injunction in
the United States” emerged. Id., at 438. In Wirtz v.
Baldor Elec. Co., 337 F. 2d 518 (CADC 1963), the Court of
Appeals for the District of Columbia Circuit addressed a lawsuit
challenging the Secretary of Labor's determination of
the prevailing minimum wage for a particular industry. Id.,
at 520. The D. C. Circuit concluded that the Secretary's determination
was unsupported but remanded for the District
Court to assess whether any of the plaintiffs had standing to
challenge it. Id., at 521–535. The D. C. Circuit also addressed
the question of remedy, explaining that if a plaintiff
had standing to sue then “the District Court should enjoin . . .
720 TRUMP v. HAWAII
Thomas, J., concurring
the Secretary's determination with respect to the entire industry.”
Id., at 535 (emphasis added). To justify this broad
relief, the D. C. Circuit explained that executive offcers
should honor judicial decisions “in all cases of essentially [the
same] character.” Id., at 534. And it noted that, once a
court has decided an issue, it “would ordinarily give the same
relief to any individual who comes to it with an essentially
similar cause of action.” Ibid. The D. C. Circuit added that
the case was “clearly a proceeding in which those who have
standing are here to vindicate the public interest in having
congressional enactments properly interpreted and applied.”
Id., at 534–535.
Universal injunctions remained rare in the decades following
Wirtz. See Bray 440–445. But recently, they have exploded
in popularity. See id., at 457–459. Some scholars
have criticized the trend. See generally id., at 457–465;
Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial
Powers of the Lower Courts, 97 B. U. L. Rev. 615,
633–653 (2017); Morley, De Facto Class Actions? Plaintiffand
Defendant-Oriented Injunctions in Voting Rights, Election
Law, and Other Constitutional Cases, 39 Harv. J. L. &
Pub. Pol'y 487, 521–538 (2016).
No persuasive defense has yet been offered for the practice.
Defenders of these injunctions contend that they ensure
that individuals who did not challenge a law are treated
the same as plaintiffs who did, and that universal injunctions
give the Judiciary a powerful tool to check the Executive
Branch. See Amdur & Hausman, Nationwide Injunctions
and Nationwide Harm, 131 Harv. L. Rev. Forum 49, 51, 54
(2017); Malveaux, Class Actions, Civil Rights, and the National
Injunction, 131 Harv. L. Rev. Forum 56, 57, 60–62
(2017). But these arguments do not explain how these injunctions
are consistent with the historical limits on equity
and judicial power. They at best “boi[l] down to a policy
judgment” about how powers ought to be allocated among
our three branches of government. Perez v. Mortgage
Cite as: 585 U. S. 667 (2018) 721
Breyer, J., dissenting
Bankers Assn., 575 U. S. 92, 132 (2015) (Thomas, J., concurring
in judgment). But the people already made that choice
when they ratifed the Constitution.
* * *
In sum, universal injunctions are legally and historically
dubious. If federal courts continue to issue them, this Court
is dutybound to adjudicate their authority to do so.
Justice Breyer, with whom Justice Kagan joins,
dissenting.
The question before us is whether Proclamation No. 9645
is lawful. If its promulgation or content was signifcantly
affected by religious animus against Muslims, it would violate
the relevant statute or the First Amendment itself. See
8 U. S. C. § 1182(f) (requiring “fnd[ings]” that persons denied
entry “would be detrimental to the interests of the United
States”); Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U. S. 520 (1993) (First Amendment); Masterpiece Cakeshop,
Ltd. v. Colorado Civil Rights Comm'n, 584 U. S. 617
(2018) (same); post, at 729–731 (Sotomayor, J., dissenting).
If, however, its sole ratio decidendi was one of national security,
then it would be unlikely to violate either the statute
or the Constitution. Which is it? Members of the Court
principally disagree about the answer to this question, i. e.,
about whether or the extent to which religious animus
played a signifcant role in the Proclamation's promulgation
or content.
In my view, the Proclamation's elaborate system of exemptions
and waivers can and should help us answer this question.
That system provides for case-by-case consideration
of persons who may qualify for visas despite the Proclamation's
general ban. Those persons include lawful permanent
residents, asylum seekers, refugees, students, children, and
numerous others. There are likely many such persons, perhaps
in the thousands. And I believe it appropriate to take
722 TRUMP v. HAWAII
Breyer, J., dissenting
account of their Proclamation-granted status when considering
the Proclamation's lawfulness. The Solicitor General
asked us to consider the Proclamation “as” it is “written”
and “as” it is “applied,” waivers and exemptions included.
Tr. of Oral Arg. 38. He warned us against considering the
Proclamation's lawfulness “on the hypothetical situation that
[the Proclamation] is what it isn't,” ibid., while telling us that
its waiver and exemption provisions mean what they say:
The Proclamation does not exclude individuals from the
United States “if they meet the criteria” for a waiver or exemption,
id., at 33.
On the one hand, if the Government is applying the exemption
and waiver provisions as written, then its argument for
the Proclamation's lawfulness is strengthened. For one
thing, the Proclamation then resembles more closely the two
important Presidential precedents on point, President Carter's
Iran order and President Reagan's Cuba proclamation,
both of which contained similar categories of persons authorized
to obtain case-by-case exemptions. Ante, at 709;
Exec. Order No. 12172, 3 CFR 461 (1979), as amended by
Exec. Order No. 12206, 3 CFR 249 (1980); Presidential Proclamation
No. 5517, 3 CFR 102 (1986). For another thing,
the Proclamation then follows more closely the basic statutory
scheme, which provides for strict case-by-case scrutiny
of applications. It would deviate from that system, not
across the board, but where circumstances may require that
deviation.
Further, since the case-by-case exemptions and waivers
apply without regard to the individual's religion, application
of that system would help make clear that the Proclamation
does not deny visas to numerous Muslim individuals (from
those countries) who do not pose a security threat. And
that fact would help to rebut the First Amendment claim
that the Proclamation rests upon anti-Muslim bias rather
than security need. Finally, of course, the very fact that
Muslims from those countries would enter the United States
Cite as: 585 U. S. 667 (2018) 723
Breyer, J., dissenting
(under Proclamation-provided exemptions and waivers)
would help to show the same thing.
On the other hand, if the Government is not applying the
system of exemptions and waivers that the Proclamation
contains, then its argument for the Proclamation's lawfulness
becomes signifcantly weaker. For one thing, the relevant
precedents—those of Presidents Carter and Reagan—would
bear far less resemblance to the present Proclamation. Indeed,
one might ask, if those two Presidents thought a caseby-
case exemption system appropriate, what is different
about present circumstances that would justify that system's
absence?
For another thing, the relevant statute requires that there
be “fnd[ings]” that the grant of visas to excluded persons
would be “detrimental to the interests of the United States.”
§ 1182(f). Yet there would be no such fndings in respect to
those for whom the Proclamation itself provides case-by-case
examination (followed by the grant of a visa in appropriate
cases).
And, perhaps most importantly, if the Government is not
applying the Proclamation's exemption and waiver system,
the claim that the Proclamation is a “Muslim ban” rather
than a “security-based” ban becomes much stronger. How
could the Government successfully claim that the Proclamation
rests on security needs if it is excluding Muslims who
satisfy the Proclamation's own terms? At the same time,
denying visas to Muslims who meet the Proclamation's own
security terms would support the view that the Government
excludes them for reasons based upon their religion.
Unfortunately there is evidence that supports the second
possibility, i. e., that the Government is not applying the
Proclamation as written. The Proclamation provides that
the Secretary of State and the Secretary of Homeland Security
“shall coordinate to adopt guidance” for consular offcers
to follow when deciding whether to grant a waiver. § 3(c)(ii).
Yet, to my knowledge, no guidance has issued. The only
724 TRUMP v. HAWAII
Breyer, J., dissenting
potentially relevant document I have found consists of a set
of State Department answers to certain Frequently Asked
Questions, but this document simply restates the Proclamation
in plain language for visa applicants. It does not provide
guidance for consular offcers as to how they are to exercise
their discretion. See Dept. of State, FAQs on the
Presidential Proclamation, https://travel.state.gov/content/
travel/en/us-visas/visa-information-resources/presidentialproclamation-
archive/2017-12-04-Presidential-Proclamation
.html (all Internet materials as last visited June 25, 2018).
An examination of publicly available statistics also provides
cause for concern. The State Department reported
that during the Proclamation's frst month, two waivers were
approved out of 6,555 eligible applicants. Letter from M.
Waters, Assistant Secretary Legislative Affairs, to Sen. Van
Hollen (Feb. 22, 2018). In its reply brief, the Government
claims that number increased from 2 to 430 during the frst
four months of implementation. Reply Brief 17. That
number, 430, however, when compared with the number of
pre-Proclamation visitors, accounts for a miniscule percentage
of those likely eligible for visas, in such categories as
persons requiring medical treatment, academic visitors, students,
family members, and others belonging to groups that,
when considered as a group (rather than case by case), would
not seem to pose security threats.
Amici have suggested that there are numerous applicants
who could meet the waiver criteria. For instance, the Proclamation
anticipates waivers for those with “signifcant business
or professional obligations” in the United States, § 3(c)
(iv)(C), and amici identify many scholars who would seem to
qualify. Brief for Colleges and Universities as Amici Curiae
25–27; Brief for American Council on Education et al.
as Amici Curiae 20 (identifying more than 2,100 scholars
from covered countries); see also Brief for Massachusetts
Technology Leadership Council, Inc., as Amicus Curiae
Cite as: 585 U. S. 667 (2018) 725
Breyer, J., dissenting
14–15 (identifying technology and business leaders from covered
countries). The Proclamation also anticipates waivers
for those with a “close family member (e. g., a spouse, child,
or parent)” in the United States, § 3(c)(iv)(D), and amici identify
many such individuals affected by the Proclamation.
Brief for Labor Organizations as Amici Curiae 15–18 (identifying
children and other relatives of U. S. citizens). The
Pars Equality Center identifed 1,000 individuals—including
parents and children of U. S. citizens—who sought and were
denied entry under the Proclamation, hundreds of whom
seem to meet the waiver criteria. See Brief for Pars Equality
Center et al. as Amici Curiae 12–28.
Other data suggest the same. The Proclamation does not
apply to asylum seekers or refugees. §§ 3(b)(vi), 6(e). Yet
few refugees have been admitted since the Proclamation took
effect. While more than 15,000 Syrian refugees arrived in
the United States in 2016, only 13 have arrived since January
2018. Dept. of State, Bureau of Population, Refugees, and
Migration, Interactive Reporting, Refugee Processing Center,
http:// ireports.wrapsnet.org. Similarly few refugees
have been admitted since January from Iran (3), Libya (1),
Yemen (0), and Somalia (122). Ibid.
The Proclamation also exempts individuals applying for
several types of nonimmigrant visas: lawful permanent residents,
parolees, those with certain travel documents, dual
nationals of noncovered countries, and representatives of
governments or international organizations. §§ 3(b)(i)–(v).
It places no restrictions on the vast majority of student and
exchange visitors, covering only those from Syria, which provided
8 percent of student and exchange visitors from the
fve countries in 2016. §§ 2(b)–(h); see Dept. of State, Report
of the Visa Offce 2016, Table XVII Nonimmigrant Visas Issued
Fiscal Year 2016 (Visa Report 2016 Table XVII). Visitors
from Somalia are eligible for any type of nonimmigrant
visa, subject to “additional scrutiny.” § 2(h)(ii). If nonim726
TRUMP v. HAWAII
Breyer, J., dissenting
migrant visa applications under the Proclamation resemble
those in 2016, 16 percent of visa applicants would be eligible
for exemptions. See Visa Report 2016 Table XVII.
In practice, however, only 258 student visas were issued
to applicants from Iran (189), Libya (29), Yemen (40), and
Somalia (0) in the frst three months of 2018. See Dept. of
State, Nonimmigrant Visa Issuances by Nationality, Jan.,
Feb., and Mar. 2018. This is less than a quarter of the volume
needed to be on track for 2016 student visa levels. And
only 40 nonimmigrant visas have been issued to Somali nationals,
a decrease of 65 percent from 2016. Ibid.; see Visa
Report 2016 Table XVII. While this is but a piece of the
picture, it does not provide grounds for confdence.
Anecdotal evidence further heightens these concerns.
For example, one amicus identifed a child with cerebral
palsy in Yemen. The war had prevented her from receiving
her medication, she could no longer move or speak, and her
doctors said she would not survive in Yemen. Her visa application
was denied. Her family received a form with a
check mark in the box unambiguously confrming that “ `a
waiver will not be granted in your case.' ” Letter from L.
Blatt to S. Harris, Clerk of Court (May 1, 2018). But after
the child's case was highlighted in an amicus brief before
this Court, the family received an update from the consular
offcer who had initially denied the waiver. It turns out, according
to the offcer, that she had all along determined that
the waiver criteria were met. But, the offcer explained, she
could not relay that information at the time because the
waiver required review from a supervisor, who had since approved
it. The offcer said that the family's case was now in
administrative processing and that she was attaching
a “ `revised refusal letter indicating the approval of the
waiver.' ” Ibid. The new form did not actually approve the
waiver (in fact, the form contains no box saying “granted”).
But a different box was now checked, reading: “ `The consular
offcer is reviewing your eligibility for a waiver under
Cite as: 585 U. S. 667 (2018) 727
Breyer, J., dissenting
the Proclamation. . . . This can be a lengthy process, and
until the consular offcer can make an individualized determination
of [the relevant] factors, your visa application will remain
refused under Section 212(f) [of the Proclamation].' ”
Ibid. One is left to wonder why this second box, indicating
continuing review, had not been checked at the outset if in
fact the child's case had remained under consideration all
along. Though this is but one incident and the child was
admitted after considerable international attention in this
case, it provides yet more reason to believe that waivers are
not being processed in an ordinary way.
Finally, in a pending case in the Eastern District of New
York, a consular offcial has fled a sworn affdavit asserting
that he and other offcials do not, in fact, have discretion to
grant waivers. According to the affdavit, consular offcers
“were not allowed to exercise that discretion” and “the
waiver [process] is merely `window dressing.' ” See Decl. of
Christopher Richardson in Alharbi v. Miller, No. 1:18–cv–
2435, Doc. 24–2 (June 1, 2018), pp. 3–4. Another report similarly
indicates that the U. S. Embassy in Djibouti, which
processes visa applications for citizens of Yemen, received
instructions to grant waivers “only in rare cases of imminent
danger,” with one consular offcer reportedly telling an applicant
that “ `[e]ven for infants, we would need to see some
evidence of a congenital heart defect or another medical
issue of that degree of diffculty that . . . would likely lead
to the child's developmental harm or death.' ” Center for
Constitutional Rights and the Rule of Law Clinic, Yale Law
School, Window Dressing the Muslim Ban: Reports of Waivers
and Mass Denials From Yemeni-American Families Stuck
in Limbo 18 (2018).
Declarations, anecdotal evidence, facts, and numbers taken
from amicus briefs are not judicial factfndings. The Government
has not had an opportunity to respond, and a court
has not had an opportunity to decide. But, given the importance
of the decision in this case, the need for assurance that
728 TRUMP v. HAWAII
Sotomayor, J., dissenting
the Proclamation does not rest upon a “Muslim ban,” and the
assistance in deciding the issue that answers to the “exemption
and waiver” questions may provide, I would send this
case back to the District Court for further proceedings.
And I would leave the injunction in effect while the matter
is litigated. Regardless, the Court's decision today leaves
the District Court free to explore these issues on remand.
If this Court must decide the question without this further
litigation, I would, on balance, fnd the evidence of antireligious
bias, including statements on a website taken down
only after the President issued the two executive orders preceding
the Proclamation, along with the other statements
also set forth in Justice Sotomayor's opinion, a suffcient
basis to set the Proclamation aside. And for these reasons,
I respectfully dissent.
Justice Sotomayor, with whom Justice Ginsburg
joins, dissenting.
The United States of America is a Nation built upon the
promise of religious liberty. Our Founders honored that
core promise by embedding the principle of religious neutrality
in the First Amendment. The Court's decision today
fails to safeguard that fundamental principle. It leaves undisturbed
a policy frst advertised openly and unequivocally
as a “total and complete shutdown of Muslims entering the
United States” because the policy now masquerades behind a
facade of national-security concerns. But this repackaging
does little to cleanse Presidential Proclamation No. 9645 of
the appearance of discrimination that the President's words
have created. Based on the evidence in the record, a reasonable
observer would conclude that the Proclamation was
motivated by anti-Muslim animus. That alone suffces to
show that plaintiffs are likely to succeed on the merits of
their Establishment Clause claim. The majority holds otherwise
by ignoring the facts, misconstruing our legal precedent,
and turning a blind eye to the pain and suffering the
Cite as: 585 U. S. 667 (2018) 729
Sotomayor, J., dissenting
Proclamation inficts upon countless families and individuals,
many of whom are United States citizens. Because that
troubling result runs contrary to the Constitution and our
precedent, I dissent.
I
Plaintiffs challenge the Proclamation on various grounds,
both statutory and constitutional. Ordinarily, when a case
can be decided on purely statutory grounds, we strive to follow
a “prudential rule of avoiding constitutional questions.”
Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 8
(1993). But that rule of thumb is far from categorical, and
it has limited application where, as here, the constitutional
question proves far simpler than the statutory one. Whatever
the merits of plaintiffs' complex statutory claims, the
Proclamation must be enjoined for a more fundamental reason:
It runs afoul of the Establishment Clause's guarantee of
religious neutrality.
A
The Establishment Clause forbids government policies
“respecting an establishment of religion.” U. S. Const.,
Amdt. 1. The “clearest command” of the Establishment
Clause is that the government cannot favor or disfavor one
religion over another. Larson v. Valente, 456 U. S. 228, 244
(1982); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U. S. 520, 532 (1993) (“[T]he First Amendment forbids an offcial
purpose to disapprove of a particular religion”); Edwards
v. Aguillard, 482 U. S. 578, 593 (1987) (“The Establishment
Clause . . . forbids alike the preference of a religious
doctrine or the prohibition of theory which is deemed antagonistic
to a particular dogma” (internal quotation marks
omitted)); Lynch v. Donnelly, 465 U. S. 668, 673 (1984) (noting
that the Establishment Clause “forbids hostility toward any
[religion],” because “such hostility would bring us into `war
with our national tradition as embodied in the First Amendmen[
t]' ”); Epperson v. Arkansas, 393 U. S. 97, 106 (1968)
730 TRUMP v. HAWAII
Sotomayor, J., dissenting
(“[T]he State may not adopt programs or practices . . . which
aid or oppose any religion. This prohibition is absolute” (citation
and internal quotation marks omitted)). Consistent
with that clear command, this Court has long acknowledged
that governmental actions that favor one religion “inevitabl[
y]” foster “the hatred, disrespect and even contempt of
those who [hold] contrary beliefs.” Engel v. Vitale, 370
U. S. 421, 431 (1962). That is so, this Court has held, because
such acts send messages to members of minority faiths
“ `that they are outsiders, not full members of the political
community.' ” Santa Fe Independent School Dist. v. Doe,
530 U. S. 290, 309 (2000). To guard against this serious
harm, the Framers mandated a strict “principle of denominational
neutrality.” Larson, 456 U. S., at 246; Board of Ed.
of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687,
703 (1994) (recognizing the role of courts in “safeguarding
a principle at the heart of the Establishment Clause, that
government should not prefer one religion to another, or religion
to irreligion”).
“When the government acts with the ostensible and predominant
purpose” of disfavoring a particular religion, “it
violates that central Establishment Clause value of offcial
religious neutrality, there being no neutrality when the government's
ostensible object is to take sides.” McCreary
County v. American Civil Liberties Union of Ky., 545 U. S.
844, 860 (2005). To determine whether plaintiffs have
proved an Establishment Clause violation, the Court asks
whether a reasonable observer would view the government
action as enacted for the purpose of disfavoring a religion.
See id., at 862, 866; accord, Town of Greece v. Galloway, 572
U. S. 565, 587 (2014) (plurality opinion).
In answering that question, this Court has generally considered
the text of the government policy, its operation, and
any available evidence regarding “the historical background
of the decision under challenge, the specifc series of events
Cite as: 585 U. S. 667 (2018) 731
Sotomayor, J., dissenting
leading to the enactment or offcial policy in question, and
the legislative or administrative history, including contemporaneous
statements made by” the decisionmaker. Lukumi,
508 U. S., at 540 (opinion of Kennedy, J.); McCreary, 545
U. S., at 862 (courts must evaluate “text, legislative history,
and implementation . . . , or comparable offcial act” (internal
quotation marks omitted)). At the same time, however,
courts must take care not to engage in “any judicial psychoanalysis
of a drafter's heart of hearts.” Id., at 862.
B
1
Although the majority briefy recounts a few of the statements
and background events that form the basis of plaintiffs'
constitutional challenge, ante, at 699–701, that highly
abridged account does not tell even half of the story. See
Brief for The Roderick & Solange MacArthur Justice Center
as Amicus Curiae 5–31 (outlining President Trump's public
statements expressing animus toward Islam). The full record
paints a far more harrowing picture, from which a reasonable
observer would readily conclude that the Proclamation
was motivated by hostility and animus toward the
Muslim faith.
During his Presidential campaign, then-candidate Donald
Trump pledged that, if elected, he would ban Muslims from
entering the United States. Specifcally, on December 7,
2015, he issued a formal statement “calling for a total and
complete shutdown of Muslims entering the United States.”
App. 119. That statement, which remained on his campaign
website until May 2017 (several months into his Presidency),
read in full:
“Donald J. Trump is calling for a total and complete
shutdown of Muslims entering the United States until
our country's representatives can fgure out what is
going on. According to Pew Research, among others,
732 TRUMP v. HAWAII
Sotomayor, J., dissenting
there is great hatred towards Americans by large segments
of the Muslim population. Most recently, a poll
from the Center for Security Policy released data showing
`25% of those polled agreed that violence against
Americans here in the United States is justifed as a
part of the global jihad' and 51% of those polled `agreed
that Muslims in America should have the choice of being
governed according to Shariah.' Shariah authorizes
such atrocities as murder against nonbelievers who
won't convert, beheadings and more unthinkable acts
that pose great harm to Americans, especially women.
“Mr. Trum[p] stated, `Without looking at the various
polling data, it is obvious to anybody the hatred is beyond
comprehension. Where this hatred comes from
and why we will have to determine. Until we are able
to determine and understand this problem and the dangerous
threat it poses, our country cannot be the victims
of the horrendous attacks by people that believe only in
Jihad, and have no sense of reason or respect of human
life. If I win the election for President, we are going
to Make America Great Again.'—Donald J. Trump.”
Id., at 158; see also id., at 130–131.
On December 8, 2015, Trump justifed his proposal during
a television interview by noting that President Franklin D.
Roosevelt “did the same thing” with respect to the internment
of Japanese Americans during World War II. Id., at
120. In January 2016, during a Republican primary debate,
Trump was asked whether he wanted to “rethink [his] position”
on “banning Muslims from entering the country.”
Ibid. He answered, “No.” Ibid. A month later, at a rally
in South Carolina, Trump told an apocryphal story about
United States General John J. Pershing killing a large group
of Muslim insurgents in the Philippines with bullets dipped
in pigs' blood in the early 1900's. Id., at 163–164. In March
2016, he expressed his belief that “Islam hates us. . . . [W]e
can't allow people coming into this country who have this
Cite as: 585 U. S. 667 (2018) 733
Sotomayor, J., dissenting
hatred of the United States . . . [a]nd of people that are not
Muslim.” Id., at 120–121. That same month, Trump asserted
that “[w]e're having problems with the Muslims, and
we're having problems with Muslims coming into the country.”
Id., at 121. He therefore called for surveillance of
mosques in the United States, blaming terrorist attacks on
Muslims' lack of “assimilation” and their commitment to
“sharia law.” Ibid.; id., at 164. A day later, he opined that
Muslims “do not respect us at all” and “don't respect a lot of
the things that are happening throughout not only our country,
but they don't respect other things.” Ibid.
As Trump's Presidential campaign progressed, he began
to describe his policy proposal in slightly different terms.
In June 2016, for instance, he characterized the policy proposal
as a suspension of immigration from countries “where
there's a proven history of terrorism.” Id., at 121. He also
described the proposal as rooted in the need to stop “importing
radical Islamic terrorism to the West through a failed
immigration system.” Id., at 121–122. Asked in July 2016
whether he was “pull[ing] back from” his pledged Muslim
ban, Trump responded, “I actually don't think it's a rollback.
In fact, you could say it's an expansion.” Id., at 122–123.
He then explained that he used different terminology because
“[p]eople were so upset when [he] used the word Muslim.”
Id., at 123.
A month before the 2016 election, Trump reiterated that
his proposed “Muslim ban” had “morphed into a[n] extreme
vetting from certain areas of the world.” Ibid. Then, on
December 21, 2016, President-elect Trump was asked
whether he would “rethink” his previous “plans to create
a Muslim registry or ban Muslim immigration.” Ibid. He
replied: “You know my plans. All along, I've proven to be
right.” Ibid.
On January 27, 2017, one week after taking offce, President
Trump signed Executive Order No. 13769, 82 Fed. Reg.
8977 (2017) (EO–1), entitled “Protecting the Nation From
734 TRUMP v. HAWAII
Sotomayor, J., dissenting
Foreign Terrorist Entry Into the United States.” As he
signed it, President Trump read the title, looked up, and said
“We all know what that means.” App. 124. That same day,
President Trump explained to the media that, under EO–1,
Christians would be given priority for entry as refugees into
the United States. In particular, he bemoaned the fact that
in the past, “[i]f you were a Muslim [refugee from Syria] you
could come in, but if you were a Christian, it was almost
impossible. ” Id., at 125. Considering that past policy
“very unfair,” President Trump explained that EO–1 was designed
“to help” the Christians in Syria. Ibid. The following
day, one of President Trump's key advisers candidly drew
the connection between EO–1 and the “Muslim ban” that the
President had pledged to implement if elected. Ibid. According
to that adviser, “[W]hen [Donald Trump] frst announced
it, he said, `Muslim ban.' He called me up. He
said, `Put a commission together. Show me the right way
to do it legally.' ” Ibid.
On February 3, 2017, the United States District Court for
the Western District of Washington enjoined the enforcement
of EO–1. See Washington v. Trump, 2017 WL 462040,
*3. The Ninth Circuit denied the Government's request to
stay that injunction. Washington v. Trump, 847 F. 3d 1151,
1169 (2017) (per curiam). Rather than appeal the Ninth
Circuit's decision, the Government declined to continue defending
EO–1 in court and instead announced that the President
intended to issue a new executive order to replace
EO–1.
On March 6, 2017, President Trump issued that new executive
order, which, like its predecessor, imposed temporary
entry and refugee bans. See Exec. Order No. 13780, 82 Fed.
Reg. 13209 (EO–2). One of the President's senior advisers
publicly explained that EO–2 would “have the same basic
policy outcome” as EO–1, and that any changes would address
“very technical issues that were brought up by the
Cite as: 585 U. S. 667 (2018) 735
Sotomayor, J., dissenting
court. ” App. 127. Af ter EO–2 was issued, the White
House Press Secretary told reporters that, by issuing EO–
2, President Trump “continue[d] to deliver on . . . his most
signifcant campaign promises.” Id., at 130. That statement
was consistent with President Trump's own declaration
that “I keep my campaign promises, and our citizens will be
very happy when they see the result.” Id., at 127–128.
Before EO–2 took effect, Federal District Courts in Hawaii
and Maryland enjoined the order's travel and refugee bans.
See Hawaii v. Trump, 245 F. Supp. 3d 1227, 1239 (Haw. 2017);
International Refugee Assistance Project (IRAP) v. Trump,
241 F. Supp. 3d 539, 566 (Md. 2017). The Fourth and Ninth
Circuits upheld those injunctions in substantial part. IRAP
v. Trump, 857 F. 3d 554, 606 (CA4 2017) (en banc); Hawaii v.
Trump, 859 F. 3d 741, 789 (CA9 2017) (per curiam). In June
2017, this Court granted the Government's petition for certiorari
and issued a per curiam opinion partially staying the
District Courts' injunctions pending further review. In particular,
the Court allowed EO–2's travel ban to take effect
except as to “foreign nationals who have a credible claim of
a bona fde relationship with a person or entity in the United
States.” Trump v. IRAP, 582 U. S. 571, 582 (2017).
While litigation over EO–2 was ongoing, President Trump
repeatedly made statements alluding to a desire to keep
Muslims out of the country. For instance, he said at a rally
of his supporters that EO–2 was just a “watered down version
of the frst one” and had been “ `tailor[ed]' at the behest
of `the lawyers.' ” App. 131. He further added that he
would prefer “to go back to the frst [executive order] and
go all the way” and reiterated his belief that it was “ `very
hard' for Muslims to assimilate into Western culture.” Id.,
at 131–132. During a rally in April 2017, President Trump
recited the lyrics to a song called “The Snake,” a song about
a woman who nurses a sick snake back to health but then is
attacked by the snake, as a warning about Syrian refugees
736 TRUMP v. HAWAII
Sotomayor, J., dissenting
entering the country. Id., at 132, 163. And in June 2017,
the President stated on Twitter that the Justice Department
had submitted a “watered down, politically correct version”
of the “original Travel Ban” “to S[upreme] C[ourt].” 1 Id.,
at 132. The President went on to tweet: “People, the lawyers
and the courts can call it whatever they want, but I am
calling it what we need and what it is, a TRAVEL BAN!”
Id., at 132–133. He added: “That's right, we need a
TRAVEL BAN for certain DANGEROUS countries, not
some politically correct term that won't help us protect our
people!” Id., at 133. Then, on August 17, 2017, President
Trump issued yet another tweet about Islam, once more referencing
the story about General Pershing's massacre of
Muslims in the Philippines: “Study what General Pershing
. . . did to terrorists when caught. There was no more Radical
Islamic Terror for 35 years!” IRAP v. Trump, 883 F. 3d
233, 267 (CA4 2018) (IRAP II) (en banc) (alterations in
original).
In September 2017, President Trump tweeted that “[t]he
travel ban into the United States should be far larger,
tougher and more specifc—but stupidly, that would not
be politically correct!” App. 133. Later that month, on
September 24, 2017, President Trump issued Presidential
Proclamation No. 9645, 82 Fed. Reg. 45161 (Proclamation),
which restricts entry of certain nationals from six Muslimmajority
countries. On November 29, 2017, President
Trump “retweeted” three anti-Muslim videos, entitled “Muslim
Destroys a Statue of Virgin Mary!”, “Islamist mob pushes
teenage boy off roof and beats him to death!”, and “Muslim
migrant beats up Dutch boy on crutches!” 2 IRAP II,
1 According to the White House, President Trump's statements on Twitter
are “offcial statements.” App. 133.
2 The content of these videos is highly infammatory, and their titles
are arguably misleading. For instance, the person depicted in the video
entitled “Muslim migrant beats up Dutch boy on crutches!” was reportedly
not a “migrant,” and his religion is not publicly known. See Brief for
Cite as: 585 U. S. 667 (2018) 737
Sotomayor, J., dissenting
883 F. 3d, at 267. Those videos were initially tweeted by a
British political party whose mission is to oppose “all alien
and destructive politic[al] or religious doctrines, including
. . . Islam.” Ibid. When asked about these videos, the
White House Deputy Press Secretary connected them to the
Proclamation, responding that the “President has been talking
about these security issues for years now, from the campaign
trail to the White House,” and “has addressed these
issues with the travel order that he issued earlier this year
and the companion proclamation.” Ibid.
2
As the majority correctly notes, “the issue before us is not
whether to denounce” these offensive statements. Ante, at
701–702. Rather, the dispositive and narrow question here
is whether a reasonable observer, presented with all “openly
available data,” the text and “historical context” of the Proclamation,
and the “specifc sequence of events” leading to it,
would conclude that the primary purpose of the Proclamation
is to disfavor Islam and its adherents by excluding them from
the country. McCreary, 545 U. S., at 862–863 (internal quotation
marks omitted). The answer is unquestionably yes.
Taking all the relevant evidence together, a reasonable
observer would conclude that the Proclamation was driven
primarily by anti-Muslim animus, rather than by the Government's
asserted national-security justifcations. Even before
being sworn into offce, then-candidate Trump stated
that “Islam hates us,” App. 399, warned that “[w]e're having
problems with the Muslims, and we're having problems with
Muslims coming into the country,” id., at 121, promised to
Plaintiffs in IRAP v. Trump as Amici Curiae 12, n. 4; P. Baker & E.
Sullivan, Trump Shares Infammatory Anti-Muslim Videos, and Britain's
Leader Condemns Them, N. Y. Times, Nov. 29, 2017 (“[A]ccording to local
officials, both boys are Dutch”), https://www.nytimes.com/2017/11/29/us/
politics/trump-anti-muslim-videos-jayda-fransen.html (all Internet materials
as last visited June 25, 2018).
738 TRUMP v. HAWAII
Sotomayor, J., dissenting
enact a “total and complete shutdown of Muslims entering
the United States,” id., at 119, and instructed one of his advisers
to fnd a “lega[l]” way to enact a Muslim ban, id., at
125.3 The President continued to make similar statements
well after his inauguration, as detailed above, see supra, at
733–737.
Moreover, despite several opportunities to do so, President
Trump has never disavowed any of his prior statements
about Islam.4 Instead, he has continued to make remarks
3 The Government urges us to disregard the President's campaign statements.
Brief for Petitioners 66–67. But nothing in our precedent supports
that blinkered approach. To the contrary, courts must consider “the
historical background of the decision under challenge, the specifc series
of events leading to the enactment or offcial policy in question, and the
legislative or administrative history.” Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U. S. 520, 540 (1993) (opinion of Kennedy, J.). Moreover,
President Trump and his advisers have repeatedly acknowledged
that the Proclamation and its predecessors are an outgrowth of the President's
campaign statements. For example, just last November, the White
House Deputy Press Secretary reminded the media that the Proclamation
addresses “issues” the President has been talking about “for years,” including
on “the campaign trail.” IRAP II, 883 F. 3d 233, 267 (CA4 2018).
In any case, as the Fourth Circuit correctly recognized, even without relying
on any of the President's campaign statements, a reasonable observer
would conclude that the Proclamation was enacted for the impermissible
purpose of disfavoring Muslims. Id., at 266, 268.
4 At oral argument, the Solicitor General asserted that President Trump
“made crystal-clear on September 25 that he had no intention of imposing
the Muslim ban” and “has praised Islam as one of the great countries [sic]
of the world.” Tr. of Oral Arg. 81. Because the record contained no
evidence of any such statement made on September 25th, however, the
Solicitor General clarifed after oral argument that he actually intended
to refer to President Trump's statement during a television interview
on January 25, 2017. Letter from N. Francisco, Solicitor General, to
S. Harris, Clerk of Court (May 1, 2018); Reply Brief 28, n. 8. During
that interview, the President was asked whether EO–1 was “the Muslim
ban,” and answered, “no it's not the Muslim ban.” See Transcript: ABC
News Anchor David Muir Interviews President Trump, ABC News,
Jan. 25, 2017, http://abcnews.go.com/Politics/transcript-abc-news-anchordavid-
muir-interviews-president/story?id=45047602. But that lone asserCite
as: 585 U. S. 667 (2018) 739
Sotomayor, J., dissenting
that a reasonable observer would view as an unrelenting attack
on the Muslim religion and its followers. Given President
Trump's failure to correct the reasonable perception of
his apparent hostility toward the Islamic faith, it is unsurprising
that the President's lawyers have, at every step in
the lower courts, failed in their attempts to launder the Proclamation
of its discriminatory taint. See United States v.
Fordice, 505 U. S. 717, 746–747 (1992) (“[G]iven an initially
tainted policy, it is eminently reasonable to make the [Government]
bear the risk of nonpersuasion with respect to intent
at some future time, both because the [Government] has
created the dispute through its own prior unlawful conduct,
and because discriminatory intent does tend to persist
through time” (citation omitted)). Notably, the Court recently
found less pervasive offcial expressions of hostility
and the failure to disavow them to be constitutionally signifcant.
Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil
Rights Comm'n, 584 U. S. 617, 639 (2018) (“The offcial expressions
of hostility to religion in some of the commissioners'
comments—comments that were not disavowed at the
Commission or by the State at any point in the proceedings
that led to affrmance of the order—were inconsistent with
what the Free Exercise Clause requires”). It should fnd
the same here.
Ultimately, what began as a policy explicitly “calling for a
total and complete shutdown of Muslims entering the United
States” has since morphed into a “Proclamation” putatively
based on national-security concerns. But this new window
dressing cannot conceal an unassailable fact: The words of the
tion hardly qualifes as a disavowal of the President's comments about
Islam—some of which were spoken after January 25, 2017. Moreover, it
strains credulity to say that President Trump's January 25th statement
makes “crystal-clear” that he never intended to impose a Muslim ban
given that, until May 2017, the President's website displayed the statement
regarding his campaign promise to ban Muslims from entering the
country.
740 TRUMP v. HAWAII
Sotomayor, J., dissenting
President and his advisers create the strong perception that
the Proclamation is contaminated by impermissible discriminatory
animus against Islam and its followers.
II
Rather than defend the President's problematic statements,
the Government urges this Court to set them aside
and defer to the President on issues related to immigration
and national security. The majority accepts that invitation
and incorrectly applies a watered-down legal standard in an
effort to short circuit plaintiffs' Establishment Clause claim.
The majority begins its constitutional analysis by noting
that this Court, at times, “has engaged in a circumscribed
judicial inquiry when the denial of a visa allegedly burdens
the constitutional rights of a U. S. citizen.” Ante, at 703 (citing
Kleindienst v. Mandel, 408 U. S. 753 (1972)). As the majority
notes, Mandel held that when the Executive Branch
provides “a facially legitimate and bona fde reason” for denying
a visa, “courts will neither look behind the exercise of
that discretion, nor test it by balancing its justifcation.”
Id., at 770. In his controlling concurrence in Kerry v. Din,
576 U. S. 86 (2015), Justice Kennedy applied Mandel's
holding and elaborated that courts can “ `look behind' the
Government's exclusion of ” a foreign national if there is “an
affrmative showing of bad faith on the part of the consular
offcer who denied [the] visa.” Din, 576 U. S., at 105 (opinion
concurring in judgment). The extent to which Mandel and
Din apply at all to this case is unsettled, and there is good
reason to think they do not.5 Indeed, even the Government
5 Mandel and Din are readily distinguishable from this case for a number
of reasons. First, Mandel and Din each involved a constitutional
challenge to an Executive Branch decision to exclude a single foreign national
under a specifc statutory ground of inadmissibility. Mandel, 408
U. S., at 767; Din, 576 U. S., at 102. Here, by contrast, President Trump
is not exercising his discretionary authority to determine the admission or
exclusion of a particular foreign national. He promulgated an executive
order affecting millions of individuals on a categorical basis. Second,
Cite as: 585 U. S. 667 (2018) 741
Sotomayor, J., dissenting
agreed at oral argument that where the Court confronts
a situation involving “all kinds of denigrating comments
about” a particular religion and a subsequent policy that is
designed with the purpose of disfavoring that religion but
that “dot[s] all the i's and . . . cross[es] all the t's,” Mandel
would not “pu[t] an end to judicial review of that set of facts.”
Tr. of Oral Arg. 16.
In light of the Government's suggestion “that it may be
appropriate here for the inquiry to extend beyond the facial
neutrality of the order,” the majority rightly declines to
apply Mandel's “narrow standard of review” and “assume[s]
that we may look behind the face of the Proclamation.” Ante,
at 704. In doing so, however, the Court, without explanation
or precedential support, limits its review of the Proclamation
to rational-basis scrutiny. Ante, at 704–705. That
approach is perplexing, given that in other Establishment
Clause cases, including those involving claims of religious animus
or discrimination, this Court has applied a more stringent
standard of review. See, e. g., McCreary, 545 U. S., at
860–863; Larson, 456 U. S., at 246; Presbyterian Church in
Mandel and Din did not purport to establish the framework for adjudicating
cases (like this one) involving claims that the Executive Branch violated
the Establishment Clause by acting pursuant to an unconstitutional
purpose. Applying Mandel's narrow standard of review to such a claim
would run contrary to this Court's repeated admonition that “[f]acial neutrality
is not determinative” in the Establishment Clause context. Lukumi,
508 U. S., at 534. Likewise, the majority's passing invocation of
Fiallo v. Bell, 430 U. S. 787 (1977), is misplaced. Fiallo, unlike this case,
addressed a constitutional challenge to a statute enacted by Congress, not
an order of the President. Id., at 791. Fiallo's application of Mandel
says little about whether Mandel's narrow standard of review applies to
the unilateral executive proclamation promulgated under the circumstances
of this case. Finally, even assuming that Mandel and Din apply
here, they would not preclude us from looking behind the face of the Proclamation
because plaintiffs have made “an affrmative showing of bad
faith,” Din, 576 U. S., at 105 (opinion of Kennedy, J.), by the President
who, among other things, instructed his subordinates to fnd a “lega[l]”
way to enact a Muslim ban, App. 125; see supra, at 731–737.
742 TRUMP v. HAWAII
Sotomayor, J., dissenting
U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian
Church, 393 U. S. 440, 449–452 (1969); see also Colorado
Christian Univ. v. Weaver, 534 F. 3d 1245, 1266 (CA10 2008)
(McConnell, J.) (noting that, under Supreme Court precedent,
laws “involving discrimination on the basis of religion, including
interdenominational discrimination, are subject to
heightened scrutiny whether they arise under the Free Exercise
Clause, the Establishment Clause, or the Equal Protection
Clause” (citations omitted)).6 As explained above,
6 The majority chides as “problematic” the importation of Establishment
Clause jurisprudence “in the national security and foreign affairs context.”
Ante, at 706, n. 5. As the majority sees it, this Court's Establishment
Clause precedents do not apply to cases involving “immigration policies,
diplomatic sanctions, and military actions.” Ibid. But just because the
Court has not confronted the precise situation at hand does not render
these cases (or the principles they announced) inapplicable. Moreover,
the majority's complaint regarding the lack of direct authority is a puzzling
charge, given that the majority itself fails to cite any “authority for its
proposition” that a more probing review is inappropriate in a case like this
one, where United States citizens allege that the Executive has violated
the Establishment Clause by issuing a sweeping executive order motivated
by animus. Ibid., see supra, at 740–741, and n. 5. In any event,
even if there is no prior case directly on point, it is clear from our precedent
that “[w]hatever power the United States Constitution envisions for
the Executive” in the context of national security and foreign affairs, “it
most assuredly envisions a role for all three branches when individual
liberties are at stake.” Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality
opinion). This Court's Establishment Clause precedents require
that, if a reasonable observer would understand an executive action to be
driven by discriminatory animus, the action be invalidated. See Mc-
Creary, 545 U. S., at 860. That reasonable-observer inquiry includes consideration
of the Government's asserted justifcations for its actions. The
Government's invocation of a national-security justifcation, however, does
not mean that the Court should close its eyes to other relevant information.
Deference is different from unquestioning acceptance. Thus, what
is “far more problematic” in this case is the majority's apparent willingness
to throw the Establishment Clause out the window and forgo any
meaningful constitutional review at the mere mention of a nationalsecurity
concern. Ante, at 706, n. 5.
Cite as: 585 U. S. 667 (2018) 743
Sotomayor, J., dissenting
the Proclamation is plainly unconstitutional under that
heightened standard. See supra, at 737–740.
But even under rational-basis review, the Proclamation
must fall. That is so because the Proclamation is “ `divorced
from any factual context from which we could discern a relationship
to legitimate state interests,' and `its sheer breadth
[is] so discontinuous with the reasons offered for it' ” that the
policy is “ `inexplicable by anything but animus.' ” Ante, at
706 (quoting Romer v. Evans, 517 U. S. 620, 632, 635 (1996));
see also Cleburne v. Cleburne Living Center, Inc., 473 U. S.
432, 448 (1985) (recognizing that classifcations predicated on
discriminatory animus can never be legitimate because the
Government has no legitimate interest in exploiting “mere
negative attitudes, or fear” toward a disfavored group).
The President's statements, which the majority utterly fails
to address in its legal analysis, strongly support the conclusion
that the Proclamation was issued to express hostility
toward Muslims and exclude them from the country. Given
the overwhelming record evidence of anti-Muslim animus, it
simply cannot be said that the Proclamation has a legitimate
basis. IRAP II, 883 F. 3d, at 352 (Harris, J., concurring)
(explaining that the Proclamation contravenes the bedrock
principle “that the government may not act on the basis of
animus toward a disfavored religious minority” (emphasis
in original)).
The majority insists that the Proclamation furthers two
interrelated national-security interests: “preventing entry of
nationals who cannot be adequately vetted and inducing
other nations to improve their practices.” Ante, at 706.
But the Court offers insuffcient support for its view “that
the entry suspension has a legitimate grounding in [those]
national security concerns, quite apart from any religious
hostility.” Ibid.; see also ante, at 706–710, and n. 7. Indeed,
even a cursory review of the Government's asserted
national-security rationale reveals that the Proclamation is
744 TRUMP v. HAWAII
Sotomayor, J., dissenting
nothing more than a “ `religious gerrymander.' ” Lukumi,
508 U. S., at 535.
The majority frst emphasizes that the Proclamation “says
nothing about religion.” Ante, at 706. Even so, the Proclamation,
just like its predecessors, overwhelmingly targets
Muslim-majority nations. Given the record here, including
all the President's statements linking the Proclamation to his
apparent hostility toward Muslims, it is of no moment that
the Proclamation also includes minor restrictions on two non-
Muslim majority countries, North Korea and Venezuela, or
that the Government has removed a few Muslim-majority
countries from the list of covered countries since EO–1 was
issued. Consideration of the entire record supports the conclusion
that the inclusion of North Korea and Venezuela, and
the removal of other countries, simply refect subtle efforts
to start “talking territory instead of Muslim,” App. 123, precisely
so the Executive Branch could evade criticism or legal
consequences for the Proclamation's otherwise clear targeting
of Muslims. The Proclamation's effect on North Korea
and Venezuela, for example, is insubstantial, if not entirely
symbolic. A prior sanctions order already restricts entry of
North Korean nationals, see Exec. Order No. 13810, 82 Fed.
Reg. 44705, and the Proclamation targets only a handful of
Venezuelan Government offcials and their immediate family
members, 82 Fed. Reg. 45166. As such, the President's
inclusion of North Korea and Venezuela does little
to mitigate the anti-Muslim animus that permeates the
Proclamation.
The majority next contends that the Proclamation “refects
the results of a worldwide review process undertaken by multiple
Cabinet offcials.” Ante, at 707. At the outset, there is
some evidence that at least one of the individuals involved in
that process may have exhibited bias against Muslims. As
noted by one group of amici, the Trump administration appointed
Frank Wuco to help enforce the President's travel
bans and lead the multiagency review process. See Brief
Cite as: 585 U. S. 667 (2018) 745
Sotomayor, J., dissenting
for Plaintiffs in IRAP v. Trump as Amici Curiae 13–14, and
n. 10. According to amici, Wuco has purportedly made several
suspect public statements about Islam: He has “publicly
declared that it was a `great idea' to `stop the visa application
process into this country from Muslim nations in a blanket
type of policy,' ” “that Muslim populations `living under
other-than-Muslim rule' will `necessarily' turn to violence,
that Islam prescribes `violence and warfare against unbelievers,'
and that Muslims `by-and-large . . . resist assimilation.' ”
Id., at 14.
But, even setting aside those comments, the worldwide review
does little to break the clear connection between the
Proclamation and the President's anti-Muslim statements.
For “[n]o matter how many offcials affx their names to it,
the Proclamation rests on a rotten foundation.” Brief for
Constitutional Law Scholars as Amici Curiae 7 (fled Apr. 2,
2018); see supra, at 731–737. The President campaigned on
a promise to implement a “total and complete shutdown of
Muslims” entering the country, translated that campaign
promise into a concrete policy, and made several statements
linking that policy (in its various forms) to anti-Muslim
animus.
Ignoring all this, the majority empowers the President to
hide behind an administrative review process that the Government
refuses to disclose to the public. See IRAP II, 883
F. 3d, at 268 (“[T]he Government chose not to make the review
publicly available” even in redacted form); IRAP v.
Trump, No. 17–2231 (CA4), Doc. 126 (Letter from S. Swingle,
Counsel for Defendants-Appellants, to P. Connor, Clerk of
the United States Court of Appeals for the Fourth Circuit
(Nov. 24, 2017)) (resisting Fourth Circuit's request that the
Government supplement the record with the reports referenced
in the Proclamation). Furthermore, evidence of
which we can take judicial notice indicates that the multiagency
review process could not have been very thorough.
Ongoing litigation under the Freedom of Information Act
746 TRUMP v. HAWAII
Sotomayor, J., dissenting
shows that the September 2017 report the Government
produced after its review process was a mere 17 pages. See
Brennan Center for Justice v. United States Dept. of State,
No. 17–cv–7520 (SDNY), Doc. 31–1, pp. 2–3. That the Government's
analysis of the vetting practices of hundreds of
countries boiled down to such a short document raises serious
questions about the legitimacy of the President's proclaimed
national-security rationale.
Beyond that, Congress has already addressed the nationalsecurity
concerns supposedly undergirding the Proclamation
through an “extensive and complex” framework governing
“immigration and alien status.” Arizona v. United States,
567 U. S. 387, 395 (2012).7 The Immigration and Nationality
Act sets forth, in painstaking detail, a reticulated
scheme regulating the admission of individuals to the United
States. Generally, admission to the United States requires
a valid visa or other travel document. 8 U. S. C. §§ 1181,
1182(a)(7)(A)(i)(I), 1182(a)(7)(B)(i)(II). To obtain a visa, an
applicant must produce “certifed cop[ies]” of documents
proving her identity, background, and criminal history.
§§ 1202(b), 1202(d). An applicant also must undergo an inperson
interview with a State Department consular offcer.
§§ 1201(a)(1), 1202(h)(1), 22 CFR §§ 42.62(a)–(b) (2017); see
also 8 U. S. C. §§ 1202(h)(2)(D), 1202(h)(2)(F) (requiring inperson
interview if the individual “is a national of a country
offcially designated by the Secretary of State as a state
sponsor of terrorism” or is “a member of a group or section
that . . . poses a security threat to the United States”).
“Any alien who . . . has engaged in a terrorist activity,” “in-
7 It is important to note, particularly given the nature of this case, that
many consider “using the term `alien' to refer to other human beings”
to be “offensive and demeaning.” Flores v. United States Citizenship &
Immigration Servs., 718 F. 3d 548, 551–552, n. 1 (CA6 2013). I use the
term here only where necessary “to be consistent with the statutory language”
that Congress has chosen and “to avoid any confusion in replacing
a legal term of art with a more appropriate term.” Ibid.
Cite as: 585 U. S. 667 (2018) 747
Sotomayor, J., dissenting
cited terrorist activity,” or been a representative, member,
or endorser of a terrorist organization, or who “is likely to
engage after entry in any terrorist activity,” § 1182(a)(3)(B),
or who has committed one or more of the many crimes enumerated
in the statute is inadmissible and therefore ineligible
to receive a visa. See § 1182(a)(2)(A) (crime of moral turpitude
or drug offense); § 1182(a)(2)(C) (drug traffcking or
benefting from a relative who recently traffcked drugs);
§ 1182(a)(2)(D) (prostitution or “unlawful commercialized
vice”); § 1182(a)(2)(H) (human traffcking); § 1182(a)(3) (“[s]ecurity
and related grounds”).
In addition to vetting rigorously any individuals seeking
admission to the United States, the Government also rigorously
vets the information-sharing and identity-management
systems of other countries, as evidenced by the Visa Waiver
Program, which permits certain nationals from a select
group of countries to skip the ordinary visa-application process.
See § 1187. To determine which countries are eligible
for the Visa Waiver Program, the Government considers
whether they can satisfy numerous criteria—e. g., using electronic,
fraud-resistant passports, § 1187(a)(3)(B), 24-hour reporting
of lost or stolen passports, § 1187(c)(2)(D), and not
providing a safe haven for terrorists, § 1187(a)(12)(D)(iii).
The Secretary of Homeland Security, in consultation with the
Secretary of State, also must determine that a country's inclusion
in the program will not compromise “the law enforcement
and security interests of the United States.” § 1187(c)
(2)(C). Eligibility for the program is reassessed on an annual
basis. See §§ 1187(a)(12)(D)(iii), 1187(c)(12)(A). As a
result of a recent review, for example, the Executive decided
in 2016 to remove from the program dual nationals of Iraq,
Syria, Iran, and Sudan. See Brief for Former National Security
Offcials as Amici Curiae 27.
Put simply, Congress has already erected a statutory
scheme that fulflls the putative national-security interests
the Government now puts forth to justify the Proclamation.
748 TRUMP v. HAWAII
Sotomayor, J., dissenting
Tellingly, the Government remains wholly unable to articulate
any credible national-security interest that would go unaddressed
by the current statutory scheme absent the Proclamation.
The Government also offers no evidence that this
current vetting scheme, which involves a highly searching
consideration of individuals required to obtain visas for entry
into the United States and a highly searching consideration
of which countries are eligible for inclusion in the Visa
Waiver Program, is inadequate to achieve the Proclamation's
proclaimed objectives of “preventing entry of nationals who
cannot be adequately vetted and inducing other nations to
improve their [vetting and information-sharing] practices.”
Ante, at 706.
For many of these reasons, several former nationalsecurity
offcials from both political parties—including former
Secretary of State Madeleine Albright, former State Department
Legal Adviser John Bellinger III, former Central
Intelligence Agency Director John Brennan, and former Director
of National Intelligence James Clapper—have advised
that the Proclamation and its predecessor orders “do not
advance the national-security or foreign policy interests of
the United States, and in fact do serious harm to those interests.”
Brief for Former National Security Offcials as
Amici Curiae 15 (boldface deleted).
Moreover, the Proclamation purports to mitigate nationalsecurity
risks by excluding nationals of countries that provide
insuffcient information to vet their nationals. 82 Fed.
Reg. 45164. Yet, as plaintiffs explain, the Proclamation
broadly denies immigrant visas to all nationals of those countries,
including those whose admission would likely not implicate
these information defciencies (e. g., infants, or nationals
of countries included in the Proclamation who are long-term
residents of and traveling from a country not covered by the
Proclamation). See Brief for Respondents 72. In addition,
the Proclamation permits certain nationals from the countries
named in the Proclamation to obtain nonimmigrant
Cite as: 585 U. S. 667 (2018) 749
Sotomayor, J., dissenting
visas, which undermines the Government's assertion that
it does not already have the capacity and suffcient information
to vet these individuals adequately. See 82 Fed. Reg.
45165–45169.
Equally unavailing is the majority's reliance on the Proclamation's
waiver program. Ante, at 709–710, and n. 7. As
several amici thoroughly explain, there is reason to suspect
that the Proclamation's waiver program is nothing more than
a sham. See Brief for Pars Equality Center et al. as Amici
Curiae 11, 13–28 (explaining that “waivers under the Proclamation
are vanishingly rare” and reporting numerous stories
of deserving applicants denied waivers). The remote possibility
of obtaining a waiver pursuant to an ad hoc, discretionary,
and seemingly arbitrary process scarcely demonstrates
that the Proclamation is rooted in a genuine concern for national
security. See ante, at 723–728 (Breyer, J., dissenting)
(outlining evidence suggesting “that the Government is
not applying the Proclamation as written,” that “waivers are
not being processed in an ordinary way,” and that consular
and other offcials “do not, in fact, have discretion to grant
waivers”).
In sum, none of the features of the Proclamation highlighted
by the majority supports the Government's claim that the
Proclamation is genuinely and primarily rooted in a legitimate
national-security interest. What the unrebutted evidence
actually shows is that a reasonable observer would conclude,
quite easily, that the primary purpose and function of the
Proclamation is to disfavor Islam by banning Muslims from
entering our country.
III
As the foregoing analysis makes clear, plaintiffs are likely
to succeed on the merits of their Establishment Clause claim.
To obtain a preliminary injunction, however, plaintiffs must
also show that they are “likely to suffer irreparable harm in
the absence of preliminary relief,” that “the balance of equities
tips in [their] favor,” and that “an injunction is in the
750 TRUMP v. HAWAII
Sotomayor, J., dissenting
public interest. ” Winter v. Natural Resources Defense
Council, Inc., 555 U. S. 7, 20 (2008). Plaintiffs readily clear
those remaining hurdles.
First, plaintiffs have shown a likelihood of irreparable
harm in the absence of an injunction. As the District Court
found, plaintiffs have adduced substantial evidence showing
that the Proclamation will result in “a multitude of harms
that are not compensable with monetary damages and that
are irreparable—among them, prolonged separation from
family members, constraints to recruiting and retaining students
and faculty members to foster diversity and quality
within the University community, and the diminished membership
of the [Muslim] Association.” 265 F. Supp. 3d 1140,
1159 (Haw. 2017).
Second, plaintiffs have demonstrated that the balance of
the equities tips in their favor. Against plaintiffs' concrete
allegations of serious harm, the Government advances only
nebulous national-security concerns. Although national security
is unquestionably an issue of paramount public importance,
it is not “a talisman” that the Government can use
“to ward off inconvenient claims—a `label' used to `cover a
multitude of sins.' ” Ziglar v. Abbasi, 582 U. S. 120, 143
(2017). That is especially true here, because, as noted, the
Government's other statutory tools, including the existing
rigorous individualized vetting process, already address the
Proclamation's purported national-security concerns. See
supra, at 746–749.
Finally, plaintiffs and their amici have convincingly established
that “an injunction is in the public interest.” Winter,
555 U. S., at 20. As explained by the scores of amici who
have fled briefs in support of plaintiffs, the Proclamation has
deleterious effects on our higher education system; 8 national
8 See Brief for American Council on Education et al. as Amici Curiae;
Brief for Colleges and Universities as Amici Curiae; Brief for New York
University as Amicus Curiae.
Cite as: 585 U. S. 667 (2018) 751
Sotomayor, J., dissenting
security; 9 healthcare; 10 artistic culture; 11 and the Nation's
technology industry and overall economy.12 Accordingly,
the Court of Appeals correctly affrmed, in part, the District
Court's preliminary injunction.13
IV
The First Amendment stands as a bulwark against offcial
religious prejudice and embodies our Nation's deep commitment
to religious plurality and tolerance. That constitutional
promise is why, “[f ]or centuries now, people have come
to this country from every corner of the world to share in
the blessing of religious freedom.” Town of Greece v. Galloway,
572 U. S., at 615 (Kagan, J., dissenting). Instead of
vindicating those principles, today's decision tosses them
aside. In holding that the First Amendment gives way to
an executive policy that a reasonable observer would view as
motivated by animus against Muslims, the majority opinion
upends this Court's precedent, repeats tragic mistakes of the
9 See Brief for Retired Generals and Admirals of the U. S. Armed Forces
as Amici Curiae; Brief for Former National Security Offcials as Amici
Curiae.
10 See Brief for Association of American Medical Colleges as Amicus
Curiae.
11 See Brief for Association of Art Museum Directors et al. as Amici
Curiae.
12 See Brief for U. S. Companies as Amici Curiae; Brief for Massachusetts
Technology Leadership Council, Inc., as Amicus Curiae.
13 Because the majority concludes that plaintiffs have failed to show a
likelihood of success on the merits, it takes no position on “the propriety
of the nationwide scope of the injunction issued by the District Court.”
Ante, at 711. The District Court did not abuse its discretion by granting
nationwide relief. Given the nature of the Establishment Clause violation
and the unique circumstances of this case, the imposition of a nationwide
injunction was “ `necessary to provide complete relief to the plaintiffs.' ”
Madsen v. Women's Health Center, Inc., 512 U. S. 753, 765 (1994); see
Califano v. Yamasaki, 442 U. S. 682, 702 (1979) (“[T]he scope of injunctive
relief is dictated by the extent of the violation established, not by the
geographical extent of the plaintiff class”).
752 TRUMP v. HAWAII
Sotomayor, J., dissenting
past, and denies countless individuals the fundamental right
of religious liberty.
Just weeks ago, the Court rendered its decision in Masterpiece
Cakeshop, 584 U. S. 617, which applied the bedrock principles
of religious neutrality and tolerance in considering a
First Amendment challenge to government action. See id.,
at 638–639 (“The Constitution `commits government itself to
religious tolerance, and upon even slight suspicion that proposals
for state intervention stem from animosity to religion
or distrust of its practices, all offcials must pause to remember
their own high duty to the Constitution and to the rights
it secures' ” (quoting Lukumi, 508 U. S., at 547)); Masterpiece,
584 U. S., at 640 (Kagan, J., concurring) (“[S]tate
actors cannot show hostility to religious views; rather, they
must give those views `neutral and respectful consideration'
”). Those principles should apply equally here. In
both instances, the question is whether a government actor
exhibited tolerance and neutrality in reaching a decision that
affects individuals' fundamental religious freedom. But unlike
in Masterpiece, where a state civil rights commission
was found to have acted without “the neutrality that the
Free Exercise Clause requires,” id., at 639, the government
actors in this case will not be held accountable for breaching
the First Amendment's guarantee of religious neutrality and
tolerance. Unlike in Masterpiece, where the majority considered
the state commissioners' statements about religion
to be persuasive evidence of unconstitutional government action,
id., at 634–636, the majority here completely sets aside
the President's charged statements about Muslims as irrelevant.
That holding erodes the foundational principles of religious
tolerance that the Court elsewhere has so emphatically
protected, and it tells members of minority religions in
our country “ `that they are outsiders, not full members of
the political community.' ” Santa Fe, 530 U. S., at 309.
Today's holding is all the more troubling given the stark
parallels between the reasoning of this case and that of KoreCite
as: 585 U. S. 667 (2018) 753
Sotomayor, J., dissenting
matsu v. United States, 323 U. S. 214 (1944). See Brief for
Japanese American Citizens League as Amicus Curiae. In
Korematsu, the Court gave “a pass [to] an odious, gravely
injurious racial classifcation” authorized by an executive
order. Adarand Constructors, Inc. v. Peña, 515 U. S. 200,
275 (1995) (Ginsburg, J., dissenting). As here, the Government
invoked an ill-defned national-security threat to justify
an exclusionary policy of sweeping proportion. See Brief
for Japanese American Citizens League as Amicus Curiae
12–14. As here, the exclusion order was rooted in dangerous
stereotypes about, inter alia, a particular group's supposed
inability to assimilate and desire to harm the United
States. See Korematsu, 323 U. S., at 236–240 (Murphy, J.,
dissenting). As here, the Government was unwilling to reveal
its own intelligence agencies' views of the alleged security
concerns to the very citizens it purported to protect.
Compare Korematsu v. United States, 584 F. Supp. 1406,
1418–1419 (ND Cal. 1984) (discussing information the Government
knowingly omitted from report presented to the
courts justifying the executive order); Brief for Japanese
American Citizens League as Amicus Curiae 17–19, with
IRAP II, 883 F. 3d, at 268; Brief for Karen Korematsu et al.
as Amici Curiae 35–36, and n. 5 (noting that the Government
“has gone to great lengths to shield [the Secretary of Homeland
Security's] report from view”). And as here, there was
strong evidence that impermissible hostility and animus motivated
the Government's policy.
Although a majority of the Court in Korematsu was willing
to uphold the Government's actions based on a barren
invocation of national security, dissenting Justices warned
of that decision's harm to our constitutional fabric. Justice
Murphy recognized that there is a need for great deference
to the Executive Branch in the context of national security,
but cautioned that “it is essential that there be defnite limits
to [the government's] discretion,” as “[i]ndividuals must not
be left impoverished of their constitutional rights on a plea
754 TRUMP v. HAWAII
Sotomayor, J., dissenting
of military necessity that has neither substance nor support.”
323 U. S., at 234 (dissenting opinion). Justice Jackson lamented
that the Court's decision upholding the Government's
policy would prove to be “a far more subtle blow to
liberty than the promulgation of the order itself,” for although
the executive order was not likely to be long lasting,
the Court's willingness to tolerate it would endure. Id., at
245–246.
In the intervening years since Korematsu, our Nation has
done much to leave its sordid legacy behind. See, e. g., Civil
Liberties Act of 1988, 50 U. S. C. App. § 4211 et seq. (setting
forth remedies to individuals affected by the executive order
at issue in Korematsu); Non-Detention Act of 1971, 18
U. S. C. § 4001(a) (forbidding the imprisonment or detention
by the United States of any citizen absent an Act of Congress).
Today, the Court takes the important step of fnally
overruling Korematsu, denouncing it as “gravely wrong the
day it was decided.” Ante, at 710 (citing Korematsu, 323
U. S., at 248 (Jackson, J., dissenting)). This formal repudiation
of a shameful precedent is laudable and long overdue.
But it does not make the majority's decision here acceptable
or right. By blindly accepting the Government's misguided
invitation to sanction a discriminatory policy motivated by
animosity toward a disfavored group, all in the name of a
superfcial claim of national security, the Court redeploys the
same dangerous logic underlying Korematsu and merely replaces
one “gravely wrong” decision with another. Ante,
at 710.
Our Constitution demands, and our country deserves, a Judiciary
willing to hold the coordinate branches to account
when they defy our most sacred legal commitments. Because
the Court's decision today has failed in that respect,
with profound regret, I dissent.
OCTOBER TERM, 2017 755
Syllabus
NATIONAL INSTITUTE OF FAMILY AND LIFE
ADVOCATES, dba NIFLA, et al. v. BECERRA,
ATTORNEY GENERAL OF CALIFORNIA, et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 16–1140. Argued March 20, 2018—Decided June 26, 2018
The California Reproductive Freedom, Accountability, Comprehensive
Care, and Transparency Act (FACT Act) was enacted to regulate crisis
pregnancy centers—pro-life centers that offer pregnancy-related services.
The FACT Act requires clinics that primarily serve pregnant
women to provide certain notices. Clinics that are licensed must notify
women that California provides free or low-cost services, including abortions,
and give them a phone number to call. Its stated purpose is to
make sure that state residents know their rights and what healthcare
services are available to them. Unlicensed clinics must notify women
that California has not licensed the clinics to provide medical services.
Its stated purpose is to ensure that pregnant women know when they
are receiving healthcare from licensed professionals. Petitioners—two
crisis pregnancy centers, one licensed and one unlicensed, and an organization
of crisis pregnancy centers—fled suit. They alleged that both
the licensed and the unlicensed notices abridge the freedom of speech
protected by the First Amendment. The District Court denied their
motion for a preliminary injunction, and the Ninth Circuit affrmed.
Holding that petitioners could not show a likelihood of success on the
merits, the court concluded that the licensed notice survived a lower
level of scrutiny applicable to regulations of “professional speech,” and
that the unlicensed notice satisfed any level of scrutiny.
Held:
1. The licensed notice likely violates the First Amendment.
Pp. 765–775.
(a) Content-based laws “target speech based on its communicative
content” and “are presumptively unconstitutional and may be justifed
only if the government proves that they are narrowly tailored to serve
compelling state interests.” Reed v. Town of Gilbert, 576 U. S. 155,
163. The licensed notice is a content-based regulation. By compelling
petitioners to speak a particular message, it “alters the content of [their]
speech.” Riley v. National Federation of Blind of N. C., Inc., 487 U. S.
781, 795. For example, one of the state-sponsored services that the
licensed notice requires petitioners to advertise is abortion—the very
practice that petitioners are devoted to opposing. P. 766.
756 NATIONAL INSTITUTE OF FAMILY AND LIFE
ADVOCATES v. BECERRA
Syllabus
(b) Although the licensed notice is content based, the Ninth Circuit
did not apply strict scrutiny because it concluded that the notice regulates
“professional speech.” But this Court has never recognized “professional
speech” as a separate category of speech subject to different
rules. Speech is not unprotected merely because it is uttered by professionals.
The Court has afforded less protection for professional
speech in two circumstances—where a law requires professionals to disclose
factual, noncontroversial information in their “commercial speech,”
see, e. g., Zauderer v. Offce of Disciplinary Counsel of Supreme Court
of Ohio, 471 U. S. 626, 651, and where States regulate professional conduct
that incidentally involves speech, see, e. g., Ohralik v. Ohio State
Bar Assn., 436 U. S. 447, 456. Neither line of precedents is implicated
here. Pp. 766–773.
(1) Unlike the rule in Zauderer, the licensed notice is not limited
to “purely factual and uncontroversial information about the terms
under which . . . services will be available,” 471 U. S., at 651. California's
notice requires covered clinics to disclose information about statesponsored
services—including abortion, hardly an “uncontroversial”
topic. Accordingly, Zauderer has no application here. Pp. 768–769.
(2) Nor is the licensed notice a regulation of professional conduct
that incidentally burdens speech. The Court's precedents have long
drawn a line between speech and conduct. In Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833, for example, the joint opinion
rejected a free-speech challenge to an informed-consent law requiring
physicians to “give a woman certain information as part of obtaining her
consent to an abortion,” id., at 884. But the licensed notice is neither an
informed-consent requirement nor any other regulation of professional
conduct. It applies to all interactions between a covered facility and
its clients, regardless of whether a medical procedure is ever sought,
offered, or performed. And many other facilities providing the exact
same services, such as general practice clinics, are not subject to the
requirement. Pp. 769–770.
(3) Outside of these two contexts, the Court's precedents have
long protected the First Amendment rights of professionals. The
Court has applied strict scrutiny to content-based laws regulating the
noncommercial speech of lawyers, see Reed, supra, at 167, professional
fundraisers, see Riley, supra, at 798, and organizations providing specialized
advice on international law, see Holder v. Humanitarian Law
Project, 561 U. S. 1, 27–28. And it has stressed the danger of contentbased
regulations “in the felds of medicine and public health, where
information can save lives.” Sorrell v. IMS Health Inc., 564 U. S. 552,
Cite as: 585 U. S. 755 (2018) 757
Syllabus
566. Such dangers are also present in the context of professional
speech, where content-based regulation poses the same “risk that the
Government seeks not to advance a legitimate regulatory goal, but to
suppress unpopular ideas or information,” Turner Broadcasting Systems,
Inc. v. FCC, 512 U. S. 622, 641. When the government polices the
content of professional speech, it can fail to “ `preserve an uninhibited
marketplace of ideas in which truth will ultimately prevail.' ” McCullen
v. Coakley, 573 U. S. 464, 476. Professional speech is also a diffcult
category to defne with precision. See Brown v. Entertainment Merchants
Assn., 564 U. S. 786, 791. If States could choose the protection
that speech receives simply by requiring a license, they would have a
powerful tool to impose “invidious discrimination of disfavored subjects.”
Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 423, n. 19.
Pp. 771–773.
(c) Although neither California nor the Ninth Circuit has advanced
a persuasive reason to apply different rules to professional
speech, the Court need not foreclose the possibility that some such
reason exists because the licensed notice cannot survive even intermediate
scrutiny. Assuming that California's interest in providing lowincome
women with information about state-sponsored service is substantial,
the licensed notice is not suffciently drawn to promote it. The
notice is “wildly underinclusive,” Entertainment Merchants Assn.,
supra, at 802, because it applies only to clinics that have a “primary
purpose” of “providing family planning or pregnancy-related services”
while excluding several other types of clinics that also serve low-income
women and could educate them about the State's services. California
could also inform the women about its services “without burdening a
speaker with unwanted speech,” Riley, supra, at 800, most obviously
through a public-information campaign. Petitioners are thus likely to
succeed on the merits of their challenge. Pp. 773–775.
2. The unlicensed notice unduly burdens protected speech. It is unnecessary
to decide whether Zauderer's standard applies here, for even
under Zauderer, a disclosure requirement cannot be “unjustifed or unduly
burdensome.” 471 U. S., at 651. Disclosures must remedy a harm
that is “potentially real not purely hypothetical,” Ibanez v. Florida
Dept. of Business and Professional Regulation, Bd. of Accountancy,
512 U. S. 136, 146, and can extend “no broader than reasonably necessary,”
In re R. M. J., 455 U. S. 191, 203. California has not demonstrated
any justifcation for the unlicensed notice that is more than
“purely hypothetical.” The only justifcation put forward by the state
legislature was ensuring that pregnant women know when they are re758
NATIONAL INSTITUTE OF FAMILY AND LIFE
ADVOCATES v. BECERRA
Syllabus
ceiving medical care from licensed professionals, but California denied
that the justifcation for the law was that women did not know what
kind of facility they are entering when they go to a crisis pregnancy
center. Even if the State had presented a nonhypothetical justifcation,
the FACT Act unduly burdens protected speech. It imposes a
government-scripted, speaker-based disclosure requirement that is
wholly disconnected from the State's informational interest. It requires
covered facilities to post California's precise notice, no matter
what the facilities say on site or in their advertisements. And it covers
a curiously narrow subset of speakers: those that primarily provide
pregnancy-related services, but not those that provide, e. g., nonprescription
birth control. Such speaker-based laws run the risk that “the
State has left unburdened those speakers whose messages are in accord
with its own views.” Sorrell, supra, at 580. For these reasons, the
unlicensed notice does not satisfy Zauderer, assuming that standard applies.
Pp. 776–779.
839 F. 3d 823, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Alito, and Gorsuch, JJ., joined. Kennedy, J., fled a
concurring opinion, in which Roberts, C. J., and Alito and Gorsuch,
JJ., joined, post, p. 779. Breyer, J., fled a dissenting opinion, in which
Ginsburg, Sotomayor, and Kagan, JJ., joined, post, p. 780.
Michael P. Farris argued the cause for petitioners. With
him on the briefs were David A. Cortman, Kristen K. Waggoner,
Kevin H. Theriot, James A. Campbell, Denise M.
Harle, Elissa M. Graves, John C. Eastman, Anne O'Connor,
and Dean R. Broyles.
Deputy Solicitor General Wall argued the cause for the
United States as amicus curiae in support of neither party.
With him on the brief were Solicitor General Francisco,
Acting Assistant Attorney General Readler, Deputy Assistant
Attorney General Mooppan, Jonathan C. Bond, Douglas
N. Letter, and Mark R. Freeman.
Joshua A. Klein, Deputy Solicitor General of California,
argued the cause for respondents. With him on the brief
for state respondents were Xavier Becerra, Attorney General,
pro se, Edward C. DuMont, Solicitor General, Janill L.
Richards, Principal Deputy Solicitor General, and Kathleen
Cite as: 585 U. S. 755 (2018) 759
Counsel
Vermazen Radez, Anthony R. Hakl, and Jonathan M. Eisenberg,
Deputy Attorneys General. Thomas D. Bunton and
Darin L. Wessel fled a brief for respondent Thomas E.
Montgomery.*
*Briefs of amici curiae urging reversal were fled for the State of Texas
et al. by Ken Paxton, Attorney General of Texas, Scott A. Keller, Solicitor
General, Jeffrey C. Mateer, First Assistant Attorney General, and Heather
Gebelin Hacker and Beth Klusmann, Assistant Solicitors General, by M.
Stephen Pitt, General Counsel to Governor of Kentucky, and by the Attorneys
General for their respective States as follows: Steve Marshall of Alabama,
Leslie Rutledge of Arkansas, Christopher M. Carr of Georgia, Lawrence
G. Wasden of Idaho, Derek Schmidt of Kansas, Jeff Landry of
Louisiana, Bill Schuette of Michigan, Joshua D. Hawley of Missouri, Tim
Fox of Montana, Doug Peterson of Nebraska, Adam Paul Laxalt of Nevada,
Michael DeWine of Ohio, Mike Hunter of Oklahoma, Alan Wilson
of South Carolina, Marty J. Jackley of South Dakota, Herbert H. Slatery
III of Tennessee, Sean D. Reyes of Utah, Patrick Morrisey of West Virginia,
and Brad Schimel of Wisconsin; for the Alpha Center by Harold J.
Cassidy and Joseph R. Zakhary; for the American Association of Pro-Life
Obstetricians and Gynecologists et al. by Steven H. Aden; for the American
Center for Law & Justice et al. by Jay Alan Sekulow, Stuart J. Roth,
Andrew J. Ekonomou, Jordan Sekulow, Walter M. Weber, Francis J. Manion,
Geoffrey R. Surtees, Edward L. White III, and Erik M. Zimmerman;
for C12 Group et al. by Michael Lee Francisco; for Care Net by John J.
Bursch; for the Cato Institute by Ilya Shapiro; for the Charlotte Lozier
Institute et al. by Dorinda C. Bordlee and Nikolas T. Nikas; for the Conservative
Legal Defense and Education Fund et al. by Herbert W. Titus,
William J. Olson, Jeremiah L. Morgan, Robert J. Olson, and Joseph W.
Miller; for First Resort, Inc., by Mark L. Rienzi, Eric C. Rassbach, Joseph
C. Davis, Kelly S. Biggins, W. Scott Hastings, Carl Scherz, and Andrew
Buttaro; for the Foundation for Moral Law by John A. Eidsmoe and
Matthew J. Clark; for Freedom X et al. by William J. Becker, Jr., and
Mitchell Keiter; for Heartbeat International, Inc., by James C. Rutten,
Adam P. Barry, and Danielle M. White; for Human Coalition by Jonathan
D. Christman; for the Institute for Justice by Robert J. McNamara, Paul
M. Sherman, and Paul V. Avelar; for Jews for Religious Liberty by Howard
N. Slugh and Andrew Pepper; for the Justice and Freedom Fund by
James L. Hirsen and Deborah J. Dewart; for Legal Scholars by Kelly J.
Shackelford and Kenneth A. Klukowski; for Massachusetts Citizens for
Life et al. by Dwight G. Duncan; for Mountain Right to Life et al. for
Mathew D. Staver, Anita L. Staver, Horatio G. Mihet, and Mary E. Mc760
NATIONAL INSTITUTE OF FAMILY AND LIFE
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Opinion of the Court
Justice Thomas delivered the opinion of the Court.
The California Reproductive Freedom, Accountability,
Comprehensive Care, and Transparency Act (FACT Act) re-
Alister; for the National Association of Evangelicals et al. by Frederick
W. Claybrook, Jr., Steven W. Fitschen, and James A. Davids; for Operation
Outcry et al. by Catherine W. Short; for Pregnancy Care Centers in
Texas by Linda Boston Schlueter; for the Scharpen Foundation, Inc., et al.
by Robert H. Tyler; for Twenty-three Illinois Pregnancy Care Centers by
Noel W. Sterett, Whitman H. Brisky, Thomas Brejcha, Jr., and Thomas
G. Olp; for the United States Conference of Catholic Bishops et al. by Gene
C. Schaerr, Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F.
Moses, Hillary Byrnes, Lisa J. Gilden, Sherri C. Strand, James W. Erwin,
Kim Colby, Abba Cohen, and David Zwiebel; for 13 Women et al. by Andrea
Picciotti-Bayer; for 41 Family Policy Organizations by David French;
for 144 Members of Congress by Patrick Strawbridge; and for David Boyle
by Mr. Boyle, pro se.
Briefs of amici curiae urging affrmance were fled for the State of New
York et al. by Eric T. Schneiderman, Attorney General of New York,
Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor
General, and Judith N. Vale, Senior Assistant Solicitor General, and by
the Attorneys General for their respective jurisdictions as follows: George
Jepsen of Connecticut, Matthew P. Denn of Delaware, Karl A. Racine of
the District of Columbia, Russell A. Suzuki of Hawaii, Lisa Madigan of
Illinois, Thomas J. Miller of Iowa, Janet T. Mills of Maine, Brian E. Frosh
of Maryland, Maura Healey of Massachusetts, Lori Swanson of Minnesota,
Gurbir S. Grewal of New Jersey, Ellen F. Rosenblum of Oregon,
Josh Shapiro of Pennsylvania, Thomas J. Donovan, Jr., of Vermont, Mark
R. Herring of Virginia, and Robert W. Ferguson of Washington; for the
City and County of San Francisco et al. by Dennis J. Herrera, Christine
Van Aken, Mollie M. Lee, Suzanne Sangree, Zachary W. Carter, James
R. Williams, Michael N. Feuer, James P. Clark, Blithe Smith Bock, and
Shaun Dabby Jacobs; for the American Academy of Pediatrics et al. by
Simona G. Strauss; for the American Medical Association by Leonard A.
Nelson; for Black Women for Wellness et al. by Thomas Bennigson and
Seth E. Mermin; for the California Women's Law Center by Lois D.
Thompson; for Compassion & Choices by Darin M. Sands, Peter D.
Hawkes, and Kevin Diaz; for Equal Rights Advocates et al. by Sanford
Jay Rosen, Gay Crosthwait Grunfeld, and Devin W. Mauney; for Legal
Ethicists for Albert Giang; for Members of Congress by Brianne J. Gorod,
Elizabeth B. Wydra, David H. Gans, and Ashwin P. Phatak; for the National
League of Cities et al. by John M. Baker, Katherine M. Swenson,
Cite as: 585 U. S. 755 (2018) 761
Opinion of the Court
quires clinics that primarily serve pregnant women to provide
certain notices. Cal. Health & Safety Code Ann.
§ 123470 et seq. (West 2018). Licensed clinics must notify
women that California provides free or low-cost services, including
abortions, and give them a phone number to call.
Unlicensed clinics must notify women that California has not
licensed the clinics to provide medical services. The question
in this case is whether these notice requirements violate
the First Amendment.
I
A
The California State Legislature enacted the FACT
Act to regulate crisis pregnancy centers. Crisis pregnancy
centers—according to a report commissioned by the California
State Assembly, App. 86—are “pro-life (largely Christian
belief-based) organizations that offer a limited range of free
pregnancy options, counseling, and other services to individuals
that visit a center.” Watters et al., Pregnancy Resource
Centers: Ensuring Access and Accuracy of Information
4 (2011). “[U]nfortunately,” the author of the FACT
Act stated, “there are nearly 200 licensed and unlicensed”
crisis pregnancy centers in California. App. 84. These
centers “aim to discourage and prevent women from seeking
abortions.” Id., at 85. The author of the FACT Act observed
that crisis pregnancy centers “are commonly affliated
with, or run by organizations whose stated goal” is to oppose
abortion—including “the National Institute of Family and
Life Advocates,” one of the petitioners here. Ibid. To address
this perceived problem, the FACT Act imposes two
and Lisa Soronen; for Planned Parenthood Federation of America et al.
by Alan E. Schoenfeld, Charles C. Bridge, and Kimberly A. Parker; for
Public Citizen, Inc., by Scott L. Nelson, Allison M. Zieve, and Julie A.
Murray; for Social Science Researchers by Steven A. Zalesin; and for 51
Reproductive Rights Organizations et al. by Julie Rikelman, Autumn
Katz, Fatima Goss Graves, Gretchen Borchelt, Sunu Chandy, and
Heather Shumaker.
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notice requirements on facilities that provide pregnancyrelated
services—one for licensed facilities and one for unlicensed
facilities.
1
The frst notice requirement applies to “licensed covered
facilit[ies].” Cal. Health & Safety Code Ann. § 123471(a).
To fall under the defnition of “licensed covered facility,” a
clinic must be a licensed primary care or specialty clinic or
qualify as an intermittent clinic under California law. Ibid.
(citing §§ 1204, 1206(h)). A licensed covered facility also
must have the “primary purpose” of “providing family planning
or pregnancy-related services.” § 123471(a). And it
must satisfy at least two of the following six requirements:
“(1) The facility offers obstetric ultrasounds, obstetric
sonograms, or prenatal care to pregnant women.
“(2) The facility provides, or offers counseling about,
contraception or contraceptive methods.
“(3) The facility offers pregnancy testing or pregnancy
diagnosis.
“(4) The facility advertises or solicits patrons with offers
to provide prenatal sonography, pregnancy tests, or
pregnancy options counseling.
“(5) The facility offers abortion services.
“(6) The facility has staff or volunteers who collect
health information from clients.” Ibid.
The FACT Act exempts several categories of clinics that
would otherwise qualify as licensed covered facilities. Clinics
operated by the United States or a federal agency are
excluded, as are clinics that are “enrolled as a Medi-Cal
provider” and participate in “the Family Planning, Access,
Care, and Treatment Program” (Family PACT program).
§ 123471(c). To participate in the Family PACT program, a
clinic must provide “the full scope of family planning . . .
services specifed for the program,” Cal. Welf. & Inst. Code
Cite as: 585 U. S. 755 (2018) 763
Opinion of the Court
Ann. § 24005(c) (West 2018), including sterilization and emergency
contraceptive pills, §§ 24007(a)(1), (2).
If a clinic is a licensed covered facility, the FACT Act requires
it to disseminate a government-drafted notice on site.
Cal. Health & Safety Code Ann. § 123472(a)(1). The notice
states that “California has public programs that provide immediate
free or low-cost access to comprehensive family
planning services (including all FDA-approved methods of
contraception), prenatal care, and abortion for eligible
women. To determine whether you qualify, contact the
county social services offce at [insert the telephone number].”
Ibid. This notice must be posted in the waiting
room, printed and distributed to all clients, or provided digitally
at check-in. § 123472(a)(2). The notice must be in
English and any additional languages identifed by state law.
§ 123472(a). In some counties, that means the notice must
be spelled out in 13 different languages. See State of Cal.,
Dept. of Health Care Services, Frequency of Threshold Language
Speakers in the Medi-Cal Population by County for
Jan. 2015, pp. 4–5 (Sept. 2016) (identifying the required languages
for Los Angeles County as English, Spanish, Armenian,
Mandarin, Cantonese, Korean, Vietnamese, Farsi, Tagalog,
Russian, Cambodian, Other Chinese, and Arabic).
The stated purpose of the FACT Act, including its licensednotice
requirement, is to “ensure that California residents
make their personal reproductive health care decisions
knowing their rights and the health care services available
to them.” 2015 Cal. Legis. Serv., ch. 700, § 2 (A. B. 775)
(West) (Cal. Legis. Serv.). The legislature posited that
“thousands of women remain unaware of the public programs
available to provide them with contraception, health education
and counseling, family planning, prenatal care, abortion,
or delivery.” § 1(b). Citing the “time sensitive” nature of
pregnancy-related decisions, § 1(c), the legislature concluded
that requiring licensed facilities to inform patients them764
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selves would be “[t]he most effective” way to convey this
information, § 1(d).
2
The second notice requirement in the FACT Act applies to
“unlicensed covered facilit[ies].” § 123471(b). To fall under
the defnition of “unlicensed covered facility,” a facility must
not be licensed by the State, not have a licensed medical
provider on staff or under contract, and have the “primary
purpose” of “providing pregnancy-related services.” Ibid.
An unlicensed covered facility also must satisfy at least two
of the following four requirements:
“(1) The facility offers obstetric ultrasounds, obstetric
sonograms, or prenatal care to pregnant women.
“(2) The facility offers pregnancy testing or pregnancy
diagnosis.
“(3) The facility advertises or solicits patrons with offers
to provide prenatal sonography, pregnancy tests, or
pregnancy options counseling.
“(4) The facility has staff or volunteers who collect
health information from clients.” Ibid.
Clinics operated by the United States and licensed primary
care clinics enrolled in Medi-Cal and Family PACT are excluded.
§ 123471(c).
Unlicensed covered facilities must provide a governmentdrafted
notice stating that “[t]his facility is not licensed as a
medical facility by the State of California and has no licensed
medical provider who provides or directly supervises the
provision of services.” Cal. Health & Safety Code Ann.
§ 123472(b)(1). This notice must be provided on site and in
all advertising materials. §§ 123472(b)(2), (3). On site, the
notice must be posted “conspicuously” at the entrance of
the facility and in at least one waiting area. § 123472(b)(2).
It must be “at least 8.5 inches by 11 inches and written in
no less than 48-point type.” Ibid. In advertisements, the
notice must be in the same size or larger font than the surCite
as: 585 U. S. 755 (2018) 765
Opinion of the Court
rounding text, or otherwise set off in a way that draws attention
to it. § 123472(b)(3). Like the licensed notice, the unlicensed
notice must be in English and any additional
languages specifed by state law. § 123471(b). Its stated
purpose is to ensure “that pregnant women in California
know when they are getting medical care from licensed professionals.”
Cal. Legis. Serv. § 1(e).
B
After the Governor of California signed the FACT Act,
petitioners—a licensed pregnancy center, an unlicensed
pregnancy center, and an organization composed of crisis
pregnancy centers—fled this suit. Petitioners alleged that
the licensed and unlicensed notices abridge the freedom of
speech protected by the First Amendment. The District
Court denied their motion for a preliminary injunction.
The Court of Appeals for the Ninth Circuit affrmed. National
Institute of Family and Life Advocates v. Harris,
839 F. 3d 823, 845 (2016). After concluding that petitioners'
challenge to the FACT Act was ripe,1 id., at 833, the Ninth
Circuit held that petitioners could not show a likelihood of
success on the merits. It concluded that the licensed notice
survives the “lower level of scrutiny” that applies to regulations
of “professional speech.” Id., at 833–842. And it
concluded that the unlicensed notice satisfes any level of
scrutiny. See id., at 843–844.
We granted certiorari to review the Ninth Circuit's decision.
583 U. S. 972 (2017). We reverse with respect to both
notice requirements.
II
We frst address the licensed notice.2
1 We agree with the Ninth Circuit's ripeness determination.
2 Petitioners raise serious concerns that both the licensed and unlicensed
notices discriminate based on viewpoint. Because the notices are unconstitutional
either way, as explained below, we need not reach that issue.
766 NATIONAL INSTITUTE OF FAMILY AND LIFE
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Opinion of the Court
A
The First Amendment, applicable to the States through
the Fourteenth Amendment, prohibits laws that abridge the
freedom of speech. When enforcing this prohibition, our
precedents distinguish between content-based and contentneutral
regulations of speech. Content-based regulations
“target speech based on its communicative content.” Reed
v. Town of Gilbert, 576 U. S. 155, 163 (2015). As a general
matter, such laws “are presumptively unconstitutional and
may be justifed only if the government proves that they
are narrowly tailored to serve compelling state interests.”
Ibid. This stringent standard refects the fundamental
principle that governments have “ `no power to restrict expression
because of its message, its ideas, its subject matter,
or its content.' ” Ibid. (quoting Police Dept. of Chicago v.
Mosley, 408 U. S. 92, 95 (1972)).
The licensed notice is a content-based regulation of speech.
By compelling individuals to speak a particular message,
such notices “alte[r] the content of [their] speech.” Riley v.
National Federation of Blind of N. C., Inc., 487 U. S. 781,
795 (1988); accord, Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 642 (1994); Miami Herald Publishing
Co. v. Tornillo, 418 U. S. 241, 256 (1974). Here, for example,
licensed clinics must provide a government-drafted script
about the availability of state-sponsored services, as well as
contact information for how to obtain them. One of those
services is abortion—the very practice that petitioners are
devoted to opposing. By requiring petitioners to inform
women how they can obtain state-subsidized abortions—at
the same time petitioners try to dissuade women from choosing
that option—the licensed notice plainly “alters the content”
of petitioners' speech. Riley, supra, at 795.
B
Although the licensed notice is content based, the Ninth
Circuit did not apply strict scrutiny because it concluded that
Cite as: 585 U. S. 755 (2018) 767
Opinion of the Court
the notice regulates “professional speech.” 839 F. 3d, at 839.
Some Courts of Appeals have recognized “professional
speech” as a separate category of speech that is subject to
different rules. See, e. g., King v. Governor of New Jersey,
767 F. 3d 216, 232 (CA3 2014); Pickup v. Brown, 740 F. 3d
1208, 1227–1229 (CA9 2014); Moore-King v. County of Chesterfeld,
708 F. 3d 560, 568–570 (CA4 2014). These courts
defne “professionals” as individuals who provide personalized
services to clients and who are subject to “a generally
applicable licensing and regulatory regime.” Id., at 569; see
also King, supra, at 232; Pickup, supra, at 1230. “Professional
speech” is then defned as any speech by these individuals
that is based on “[their] expert knowledge and judgment,”
King, supra, at 232, or that is “within the confnes of
[the] professional relationship,” Pickup, supra, at 1228. So
defned, these courts except professional speech from the
rule that content-based regulations of speech are subject to
strict scrutiny. See King, supra, at 232; Pickup, supra, at
1053–1056; Moore-King, supra, at 569.
But this Court has not recognized “professional speech”
as a separate category of speech. Speech is not unprotected
merely because it is uttered by “professionals.” This
Court has “been reluctant to mark off new categories of
speech for diminished constitutional protection.” Denver
Area Ed. Telecommunications Consortium, Inc. v. FCC, 518
U. S. 727, 804 (1996) (Kennedy, J., concurring in part, concurring
in judgment in part, and dissenting in part). And
it has been especially reluctant to “exemp[t] a category of
speech from the normal prohibition on content-based restrictions.”
United States v. Alvarez, 567 U. S. 709, 722 (2012)
(plurality opinion). This Court's precedents do not permit
governments to impose content-based restrictions on speech
without “ `persuasive evidence . . . of a long (if heretofore
unrecognized) tradition' ” to that effect. Ibid. (quoting
Brown v. Entertainment Merchants Assn., 564 U. S. 786,
792 (2011)).
768 NATIONAL INSTITUTE OF FAMILY AND LIFE
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This Court's precedents do not recognize such a tradition
for a category called “professional speech.” This Court has
afforded less protection for professional speech in two circumstances—
neither of which turned on the fact that professionals
were speaking. First, our precedents have applied
more deferential review to some laws that require professionals
to disclose factual, noncontroversial information in
their “commercial speech.” See, e. g., Zauderer v. Offce of
Disciplinary Counsel of Supreme Court of Ohio, 471 U. S.
626, 651 (1985); Milavetz, Gallop & Milavetz, P. A. v. United
States, 559 U. S. 229, 250 (2010); Ohralik v. Ohio State Bar
Assn., 436 U. S. 447, 455–456 (1978). Second, under our
precedents, States may regulate professional conduct, even
though that conduct incidentally involves speech. See, e. g.,
id., at 456; Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833, 884 (1992) ( joint opinion of O'Connor,
Kennedy, and Souter, JJ.). But neither line of precedents
is implicated here.
1
This Court's precedents have applied a lower level of scrutiny
to laws that compel disclosures in certain contexts. In
Zauderer, for example, this Court upheld a rule requiring
lawyers who advertised their services on a contingencyfee
basis to disclose that clients might be required to pay
some fees and costs. 471 U. S., at 650–653. Noting that the
disclosure requirement governed only “commercial advertising”
and required the disclosure of “purely factual and uncontroversial
information about the terms under which . . .
services will be available,” the Court explained that such
requirements should be upheld unless they are “unjustifed
or unduly burdensome.” Id., at 651.
The Zauderer standard does not apply here. Most obviously,
the licensed notice is not limited to “purely factual
and uncontroversial information about the terms under
which . . . services will be available.” Ibid.; see also Hurley
Cite as: 585 U. S. 755 (2018) 769
Opinion of the Court
v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U. S. 557, 573 (1995) (explaining that Zauderer
does not apply outside of these circumstances). The notice
in no way relates to the services that licensed clinics provide.
Instead, it requires these clinics to disclose information
about state-sponsored services—including abortion, anything
but an “uncontroversial” topic. Accordingly, Zauderer has
no application here.
2
In addition to disclosure requirements under Zauderer,
this Court has upheld regulations of professional conduct
that incidentally burden speech. “[T]he First Amendment
does not prevent restrictions directed at commerce or conduct
from imposing incidental burdens on speech,” Sorrell v.
IMS Health Inc., 564 U. S. 552, 567 (2011), and professionals
are no exception to this rule, see Ohralik, supra, at 456.
Longstanding torts for professional malpractice, for example,
“fall within the traditional purview of state regulation
of professional conduct.” NAACP v. Button, 371 U. S. 415,
438 (1963); but cf. id., at 439 (“[A] State may not, under the
guise of prohibiting professional misconduct, ignore constitutional
rights”). While drawing the line between speech and
conduct can be diffcult, this Court's precedents have long
drawn it, see, e. g., Sorrell, supra, at 567; Giboney v. Empire
Storage & Ice Co., 336 U. S. 490, 502 (1949), and the line is
“ `long familiar to the bar,' ” United States v. Stevens, 559
U. S. 460, 468 (2010) (quoting Simon & Schuster, Inc. v. Members
of N. Y. State Crime Victims Bd., 502 U. S. 105, 127
(1991) (Kennedy, J., concurring in judgment)).
In Planned Parenthood of Southeastern Pa. v. Casey, for
example, this Court upheld a law requiring physicians to obtain
informed consent before they could perform an abortion.
505 U. S., at 884 ( joint opinion of O'Connor, Kennedy, and
Souter, JJ.). Pennsylvania law required physicians to inform
their patients of “the nature of the procedure, the
770 NATIONAL INSTITUTE OF FAMILY AND LIFE
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health risks of the abortion and of childbirth, and the `probable
gestational age of the unborn child.' ” Id., at 881. The law
also required physicians to inform patients of the availability
of printed materials from the State, which provided information
about the child and various forms of assistance. Ibid.
The joint opinion in Casey rejected a free-speech challenge
to this informed-consent requirement. Id., at 884. It described
the Pennsylvania law as “a requirement that a doctor
give a woman certain information as part of obtaining her
consent to an abortion,” which “for constitutional purposes,
[was] no different from a requirement that a doctor give certain
specifc information about any medical procedure.”
Ibid. The joint opinion explained that the law regulated
speech only “as part of the practice of medicine, subject to
reasonable licensing and regulation by the State.” Ibid.
(emphasis added). Indeed, the requirement that a doctor
obtain informed consent to perform an operation is “frmly
entrenched in American tort law.” Cruzan v. Director, Mo.
Dept. of Health, 497 U. S. 261, 269 (1990); see, e. g., Schloendorff
v. Society of N. Y. Hospital, 211 N. Y. 125, 129–130, 105
N. E. 92, 93 (1914) (Cardozo, J.) (explaining that “a surgeon
who performs an operation without his patient's consent
commits an assault”).
The licensed notice at issue here is not an informedconsent
requirement or any other regulation of professional
conduct. The notice does not facilitate informed consent to
a medical procedure. In fact, it is not tied to a procedure at
all. It applies to all interactions between a covered facility
and its clients, regardless of whether a medical procedure is
ever sought, offered, or performed. If a covered facility
does provide medical procedures, the notice provides no information
about the risks or benefts of those procedures.
Tellingly, many facilities that provide the exact same services
as covered facilities—such as general practice clinics, see
§ 123471(a)—are not required to provide the licensed notice.
The licensed notice regulates speech as speech.
Cite as: 585 U. S. 755 (2018) 771
Opinion of the Court
3
Outside of the two contexts discussed above—disclosures
under Zauderer and professional conduct—this Court's precedents
have long protected the First Amendment rights of
professionals. For example, this Court has applied strict
scrutiny to content-based laws that regulate the noncommercial
speech of lawyers, see Reed, 576 U. S., at 167 (discussing
Button, supra, at 438); In re Primus, 436 U. S. 412, 432
(1978); professional fundraisers, see Riley, 487 U. S., at 798;
and organizations that provided specialized advice about international
law, see Holder v. Humanitarian Law Project,
561 U. S. 1, 27–28 (2010). And the Court emphasized that
the lawyer's statements in Zauderer would have been “fully
protected” if they were made in a context other than advertising.
471 U. S., at 637, n. 7. Moreover, this Court has
stressed the danger of content-based regulations “in the
felds of medicine and public health, where information can
save lives.” Sorrell, supra, at 566.
The dangers associated with content-based regulations of
speech are also present in the context of professional speech.
As with other kinds of speech, regulating the content of
professionals' speech “pose[s] the inherent risk that the Government
seeks not to advance a legitimate regulatory goal,
but to suppress unpopular ideas or information.” Turner
Broadcasting, 512 U. S., at 641. Take medicine, for example.
“Doctors help patients make deeply personal decisions, and
their candor is crucial.” Wollschlaeger v. Governor of Florida,
848 F. 3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J.,
concurring). Throughout history, governments have “manipulat[
ed] the content of doctor-patient discourse” to increase
state power and suppress minorities:
“For example, during the Cultural Revolution, Chinese
physicians were dispatched to the countryside to convince
peasants to use contraception. In the 1930s, the
Soviet government expedited completion of a construc772
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Opinion of the Court
tion project on the Siberian railroad by ordering doctors
to both reject requests for medical leave from work and
conceal this government order from their patients. In
Nazi Germany, the Third Reich systematically violated
the separation between state ideology and medical
discourse. German physicians were taught that they
owed a higher duty to the `health of the Volk' than to
the health of individual patients. Recently, Nicolae
Ceausescu's strategy to increase the Romanian birth
rate included prohibitions against giving advice to patients
about the use of birth control devices and disseminating
information about the use of condoms as a means
of preventing the transmission of AIDS.” Berg, Toward
a First Amendment Theory of Doctor-Patient Discourse
and the Right To Receive Unbiased Medical Advice,
74 B. U. L. Rev. 201, 201–202 (1994) (footnotes
omitted).
Further, when the government polices the content of
professional speech, it can fail to “ `preserve an uninhibited
marketplace of ideas in which truth will ultimately prevail.'
” McCullen v. Coakley, 573 U. S. 464, 476 (2014).
Professionals might have a host of good-faith disagreements,
both with each other and with the government, on many topics
in their respective felds. Doctors and nurses might disagree
about the ethics of assisted suicide or the benefts of
medical marijuana; lawyers and marriage counselors might
disagree about the prudence of prenuptial agreements or the
wisdom of divorce; bankers and accountants might disagree
about the amount of money that should be devoted to savings
or the benefts of tax reform. “[T]he best test of truth is
the power of the thought to get itself accepted in the competition
of the market,” Abrams v. United States, 250 U. S. 616,
630 (1919) (Holmes, J., dissenting), and the people lose when
the government is the one deciding which ideas should
prevail.
Cite as: 585 U. S. 755 (2018) 773
Opinion of the Court
“Professional speech” is also a diffcult category to defne
with precision. See Entertainment Merchants Assn.,
564 U. S., at 791. As defned by the courts of appeals, the
professional-speech doctrine would cover a wide array of
individuals—doctors, lawyers, nurses, physical therapists,
truck drivers, bartenders, barbers, and many others. See
Smolla, Professional Speech and the First Amendment, 119
W. Va. L. Rev. 67, 68 (2016). One Court of Appeals has even
applied it to fortunetellers. See Moore-King, 708 F. 3d, at
569. All that is required to make something a “profession,”
according to these courts, is that it involves personalized
services and requires a professional license from the State.
But that gives the States unfettered power to reduce a
group's First Amendment rights by simply imposing a licensing
requirement. States cannot choose the protection that
speech receives under the First Amendment, as that would
give them a powerful tool to impose “invidious discrimination
of disfavored subjects.” Cincinnati v. Discovery Network,
Inc., 507 U. S. 410, 423–424, n. 19 (1993); see also Riley,
supra, at 796 (“[S]tate labels cannot be dispositive of [the]
degree of First Amendment protection” (citing Bigelow v.
Virginia, 421 U. S. 809, 826 (1975))).
C
In sum, neither California nor the Ninth Circuit has identifed
a persuasive reason for treating professional speech
as a unique category that is exempt from ordinary First
Amendment principles. We do not foreclose the possibility
that some such reason exists. We need not do so because
the licensed notice cannot survive even intermediate scrutiny.
California asserts a single interest to justify the licensed
notice: providing low-income women with information
about state-sponsored services. Assuming that this is a
substantial state interest, the licensed notice is not suffciently
drawn to achieve it.
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If California's goal is to educate low-income women about
the services it provides, then the licensed notice is “wildly
underinclusive.” Entertainment Merchants Assn., supra,
at 802. The notice applies only to clinics that have a “primary
purpose” of “providing family planning or pregnancyrelated
services” and that provide two of six categories of
specifc services. § 123471(a). Other clinics that have another
primary purpose, or that provide only one category of
those services, also serve low-income women and could educate
them about the State's services. According to the
legislative record, California has “nearly 1,000 community
clinics”—including “federally designated community health
centers, migrant health centers, rural health centers, and
frontier health centers”—that “serv[e] more than 5.6 million
patients . . . annually through over 17 million patient encounters.”
App. 58. But most of those clinics are excluded from
the licensed-notice requirement without explanation. Such
“[u]nderinclusiveness raises serious doubts about whether
the government is in fact pursuing the interest it invokes,
rather than disfavoring a particular speaker or viewpoint.”
Entertainment Merchants Assn., supra, at 802.
The FACT Act also excludes, without explanation, federal
clinics and Family PACT providers from the licensed-notice
requirement. California notes that those clinics can enroll
women in California's programs themselves, but California's
stated interest is informing women that these services exist
in the frst place. California has identifed no evidence that
the exempted clinics are more likely to provide this information
than the covered clinics. In fact, the exempted clinics
have long been able to enroll women in California's programs,
but the FACT Act was premised on the notion that
“thousands of women remain unaware of [them].” Cal.
Legis. Serv. § 1(b). If the goal is to maximize women's
awareness of these programs, then it would seem that California
would ensure that the places that can immediately enroll
women also provide this information. The FACT Act's
Cite as: 585 U. S. 755 (2018) 775
Opinion of the Court
exemption for these clinics, which serve many women who
are pregnant or could become pregnant in the future, demonstrates
the disconnect between its stated purpose and its actual
scope. Yet “[p]recision . . . must be the touchstone”
when it comes to regulations of speech, which “so closely
touc[h] our most precious freedoms.” Button, 371 U. S.,
at 438.
Further, California could inform low-income women about
its services “without burdening a speaker with unwanted
speech.” Riley, 487 U. S., at 800. Most obviously, it could
inform the women itself with a public-information campaign.
See ibid. (concluding that a compelled disclosure was unconstitutional
because the government could “itself publish the
. . . disclosure”). California could even post the information
on public property near crisis pregnancy centers. California
argues that it has already tried an advertising campaign,
and that many women who are eligible for publicly funded
healthcare have not enrolled. But California has identifed
no evidence to that effect. And regardless, a “tepid response”
does not prove that an advertising campaign is not
a suffcient alternative. United States v. Playboy Entertainment
Group, Inc., 529 U. S. 803, 816 (2000). Here, for
example, individuals might not have enrolled in California's
services because they do not want them, or because California
spent insuffcient resources on the advertising campaign.
Either way, California cannot co-opt the licensed facilities to
deliver its message for it. “[T]he First Amendment does
not permit the State to sacrifce speech for effciency.”
Riley, supra, at 795; accord, Arizona Free Enterprise Club's
Freedom Club PAC v. Bennett, 564 U. S. 721, 747 (2011).
In short, petitioners are likely to succeed on the merits of
their challenge to the licensed notice. Contrary to the suggestion
in the dissent, post, at 782–783 (opinion of Breyer,
J.), we do not question the legality of health and safety warnings
long considered permissible, or purely factual and uncontroversial
disclosures about commercial products.
776 NATIONAL INSTITUTE OF FAMILY AND LIFE
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III
We next address the unlicensed notice. The parties dispute
whether the unlicensed notice is subject to deferential
review under Zauderer.3 We need not decide whether the
Zauderer standard applies to the unlicensed notice. Even
under Zauderer, a disclosure requirement cannot be “unjustifed
or unduly burdensome.” 471 U. S., at 651. Our precedents
require disclosures to remedy a harm that is “potentially
real, not purely hypothetical,” Ibanez v. Florida Dept.
of Business and Professional Regulation, Bd. of Accountancy,
512 U. S. 136, 146 (1994), and to extend “no broader
than reasonably necessary,” In re R. M. J., 455 U. S. 191, 203
(1982); accord, Virginia Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U. S. 748, 772, n. 24 (1976);
Bates v. State Bar of Ariz., 433 U. S. 350, 384 (1977); cf. Zauderer,
471 U. S., at 649 (rejecting “broad prophylactic rules”
in this area). Otherwise, they risk “chilling protected . . .
speech.” Id., at 651. Importantly, California has the burden
to prove that the unlicensed notice is neither unjustifed
nor unduly burdensome. See Ibanez, 512 U. S., at 146. It
has not met its burden.
We need not decide what type of state interest is suffcient
to sustain a disclosure requirement like the unlicensed notice.
California has not demonstrated any justifcation for
the unlicensed notice that is more than “purely hypothetical.”
Ibid. The only justifcation that the California Legislature
put forward was ensuring that “pregnant women
in California know when they are getting medical care
from licensed professionals.” Cal. Legis. Serv. § 1(e). At
oral argument, however, California denied that the justifcation
for the FACT Act was that women “go into [crisis
pregnancy centers] and they don't realize what they are.”
3 Other than a conclusory assertion that the unlicensed notice satisfes
any standard of review, see Brief for Respondents 19, California does not
explain how the unlicensed notice could satisfy any standard other than
Zauderer.
Cite as: 585 U. S. 755 (2018) 777
Opinion of the Court
Tr. of Oral Arg. 44–45. Indeed, California points to nothing
suggesting that pregnant women do not already know that
the covered facilities are staffed by unlicensed medical professionals.
The services that trigger the unlicensed notice—
such as having “volunteers who collect health information
from clients,” “advertis[ing] . . . pregnancy options
counseling,” and offering over-the-counter “pregnancy testing,”
§ 123471(b)—do not require a medical license. And
California already makes it a crime for individuals without a
medical license to practice medicine. See Cal. Bus. & Prof.
Code Ann. § 2052. At this preliminary stage of the litigation,
we agree that petitioners are likely to prevail on the
question whether California has proved a justifcation for the
unlicensed notice.4
Even if California had presented a nonhypothetical justifcation
for the unlicensed notice, the FACT Act unduly burdens
protected speech. The unlicensed notice imposes a
government-scripted, speaker-based disclosure requirement
that is wholly disconnected from California's informational
interest. It requires covered facilities to post California's
precise notice, no matter what the facilities say on site or
in their advertisements. And it covers a curiously narrow
subset of speakers. While the licensed notice applies to
facilities that provide “family planning” services and “contraception
or contraceptive methods,” § 123471(a), the California
Legislature dropped these triggering conditions for the unlicensed
notice. The unlicensed notice applies only to facilities
that primarily provide “pregnancy-related” services.
§ 123471(b). Thus, a facility that advertises and provides
pregnancy tests is covered by the unlicensed notice, but a
facility across the street that advertises and provides nonprescription
contraceptives is excluded—even though the
latter is no less likely to make women think it is licensed.
This Court's precedents are deeply skeptical of laws that
4 Nothing in our opinion should be read to foreclose the possibility that
California will gather enough evidence in later stages of this litigation.
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“distinguis[h] among different speakers, allowing speech by
some but not others.” Citizens United v. Federal Election
Comm'n, 558 U. S. 310, 340 (2010). Speaker-based laws run
the risk that “the State has left unburdened those speakers
whose messages are in accord with its own views.” Sorrell,
564 U. S., at 580.
The application of the unlicensed notice to advertisements
demonstrates just how burdensome it is. The notice applies
to all “print and digital advertising materials” by an unlicensed
covered facility. § 123472(b). These materials must
include a government-drafted statement that “[t]his facility
is not licensed as a medical facility by the State of California
and has no licensed medical provider who provides or directly
supervises the provision of services.” § 123472(b)(1).
An unlicensed facility must call attention to the notice, instead
of its own message, by some method such as larger text
or contrasting type or color. See §§ 123472(b)(2)–(3). This
scripted language must be posted in English and as many
other languages as California chooses to require. As California
conceded at oral argument, a billboard for an unlicensed
facility that says “Choose Life” would have to surround
that two-word statement with a 29-word statement
from the government, in as many as 13 different languages.
In this way, the unlicensed notice drowns out the facility's
own message. More likely, the “detail required” by the unlicensed
notice “effectively rules out” the possibility of having
such a billboard in the frst place. Ibanez, supra, at 146.
For all these reasons, the unlicensed notice does not satisfy
Zauderer, assuming that standard applies. California has
offered no justifcation that the notice plausibly furthers. It
targets speakers, not speech, and imposes an unduly burdensome
disclosure requirement that will chill their protected
speech. Taking all these circumstances together, we conclude
that the unlicensed notice is unjustifed and unduly
burdensome under Zauderer. We express no view on the
Cite as: 585 U. S. 755 (2018) 779
Kennedy, J., concurring
legality of a similar disclosure requirement that is better
supported or less burdensome.
IV
We hold that petitioners are likely to succeed on the merits
of their claim that the FACT Act violates the First Amendment.
We reverse the judgment of the Court of Appeals
and remand the case for further proceedings consistent with
this opinion.
It is so ordered.
Justice Kennedy, with whom The Chief Justice,
Justice Alito, and Justice Gorsuch join, concurring.
I join the Court's opinion in all respects.
This separate writing seeks to underscore that the apparent
viewpoint discrimination here is a matter of serious constitutional
concern. See ante, at 765, n. 2. The Court, in
my view, is correct not to reach this question. It was not
suffciently developed, and the rationale for the Court's decision
today suffces to resolve the case. And had the Court's
analysis been confned to viewpoint discrimination, some legislators
might have inferred that if the law were reenacted
with a broader base and broader coverage it then would be
upheld.
It does appear that viewpoint discrimination is inherent in
the design and structure of this Act. This law is a paradigmatic
example of the serious threat presented when government
seeks to impose its own message in the place of individual
speech, thought, and expression. For here the State
requires primarily pro-life pregnancy centers to promote the
State's own preferred message advertising abortions. This
compels individuals to contradict their most deeply held beliefs,
beliefs grounded in basic philosophical, ethical, or religious
precepts, or all of these. And the history of the Act's
passage and its underinclusive application suggest a real
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possibility that these individuals were targeted because of
their beliefs.
The California Legislature included in its offcial history
the congratulatory statement that the Act was part of California's
legacy of “forward thinking.” App. 38–39. But it
is not forward thinking to force individuals to “be an instrument
for fostering public adherence to an ideological point of
view [they] fn[d] unacceptable.” Wooley v. Maynard, 430
U. S. 705, 715 (1977). It is forward thinking to begin by
reading the First Amendment as ratifed in 1791; to understand
the history of authoritarian government as the Founders
then knew it; to confrm that history since then shows
how relentless authoritarian regimes are in their attempts
to stife free speech; and to carry those lessons onward as we
seek to preserve and teach the necessity of freedom of speech
for the generations to come. Governments must not be allowed
to force persons to express a message contrary to their
deepest convictions. Freedom of speech secures freedom of
thought and belief. This law imperils those liberties.
Justice Breyer, with whom Justice Ginsburg,
Justice Sotomayor, and Justice Kagan join, dissenting.
The petitioners ask us to consider whether two sections of
a California statute violate the First Amendment. The frst
section requires licensed medical facilities (that provide
women with assistance involving pregnancy or family planning)
to tell those women where they might obtain help, including
fnancial help, with comprehensive family planning
services, prenatal care, and abortion. The second requires
unlicensed facilities offering somewhat similar services to
make clear that they are unlicensed. In my view both statutory
sections are likely constitutional, and I dissent from the
Court's contrary conclusions.
I
The frst statutory section applies to licensed medical facilities
dealing with pregnancy and which also provide specifc
Cite as: 585 U. S. 755 (2018) 781
Breyer, J., dissenting
services such as prenatal care, contraception counseling,
pregnancy diagnosis, or abortion-related services. Cal.
Health & Safety Code Ann. §§ 123471(a), 1204, 1206(h) (West
2018) (covering “primary care clinics” that serve low-income
women); Cal. Code Regs., tit. 22, § 75026 (2018) (“primary
care clinics” are medical facilities that provide “services for
the care and treatment of patients for whom the clinic accepts
responsibility” with the “direction or supervision” of
each “service” undertaken “by a person licensed, certifed or
registered to provide such service”).
The statute requires these facilities to post a notice in
their waiting rooms telling their patients:
“California has public programs that provide immediate
free or low-cost access to comprehensive family planning
services (including all FDA-approved methods of contraception),
prenatal care, and abortion for eligible women.
To determine whether you qualify, contact the county
social services offce at [insert the telephone number].”
§ 123472(a)(1).
The petitioners here, a group of covered medical facilities
that object to abortion for religious reasons, brought this
case seeking an injunction against enforcement of the California
Reproductive Freedom, Accountability, Comprehensive
Care, and Transparency Act on the ground that it violates
the First Amendment on its face. The District Court
denied a preliminary injunction, and the Court of Appeals
affrmed. The majority now reverses the Court of Appeals
on the ground that the petitioners have shown a likelihood
of success on the merits, i. e., that the statute likely violates
the petitioners' free speech rights and is unconstitutional on
its face.
A
Before turning to the specifc law before us, I focus upon
the general interpretation of the First Amendment that the
majority says it applies. It applies heightened scrutiny to
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the Act because the Act, in its view, is “content based.”
Ante, at 766. “By compelling individuals to speak a particular
message,” it adds, “such notices `alte[r] the content of
[their] speech.' ” Ibid. (quoting Riley v. National Federation
of Blind of N. C., Inc., 487 U. S. 781, 795 (1988); alteration
in original). “As a general matter,” the majority concludes,
such laws are “ `presumptively unconstitutional' ” and
are subject to “stringent” review. Ante, at 766.
The majority recognizes exceptions to this general rule: It
excepts laws that “require professionals to disclose factual,
noncontroversial information in their `commercial speech,' ”
provided that the disclosure “relates to the services that [the
regulated entities] provide.” Ante, at 768–769. It also excepts
laws that “regulate professional conduct” and only “incidentally
burden speech.” Ibid.
This constitutional approach threatens to create serious
problems. Because much, perhaps most, human behavior
takes place through speech and because much, perhaps most,
law regulates that speech in terms of its content, the majority's
approach at the least threatens considerable litigation
over the constitutional validity of much, perhaps most, government
regulation. Virtually every disclosure law could be
considered “content based,” for virtually every disclosure
law requires individuals “to speak a particular message.”
See Reed v. Town of Gilbert, 576 U. S. 155, 177–178 (2015)
(Breyer, J., concurring in judgment) (listing regulations
that inevitably involve content discrimination, ranging from
securities disclosures to signs at petting zoos). Thus, the
majority's view, if taken literally, could radically change
prior law, perhaps placing much securities law or consumer
protection law at constitutional risk, depending on how
broadly its exceptions are interpreted.
Many ordinary disclosure laws would fall outside the
majority's exceptions for disclosures related to the professional's
own services or conduct. These include numerous
commonly found disclosure requirements relating to the
Cite as: 585 U. S. 755 (2018) 783
Breyer, J., dissenting
medical profession. See, e. g., Cal. Veh. Code Ann. § 27363.5
(West 2014) (requiring hospitals to tell parents about child
seatbelts); Cal. Health & Safety Code Ann. § 123222.2 (requiring
hospitals to ask incoming patients if they would like
the facility to give their family information about patients'
rights and responsibilities); N. C. Gen. Stat. Ann. § 131E–79.2
(2017) (requiring hospitals to tell parents of newborns about
pertussis disease and the available vaccine). These also include
numerous disclosure requirements found in other
areas. See, e. g., N. Y. C. Rules & Regs., tit. 1, § 27–01 (2018)
(requiring signs by elevators showing stair locations); San
Francisco Dept. of Health, Director's Rules & Regs., Garbage
and Refuse (July 8, 2010) (requiring property owners
to inform tenants about garbage disposal procedures).
The majority, at the end of Part II of its opinion, perhaps
recognizing this problem, adds a general disclaimer. It says
that it does not “question the legality of health and safety
warnings long considered permissible, or purely factual
and uncontroversial disclosures about commercial products.”
Ante, at 775. But this generally phrased disclaimer would
seem more likely to invite litigation than to provide needed
limitation and clarifcation. The majority, for example, does
not explain why the Act here, which is justifed in part by
health and safety considerations, does not fall within its
“health” category. Ante, at 773; see also Planned Parenthood
of Southeastern Pa. v. Casey, 505 U. S. 833, 882–884
(1992) ( joint opinion of O'Connor, Kennedy, and Souter, JJ.)
(reasoning that disclosures related to fetal development and
childbirth are related to the health of a woman seeking an
abortion). Nor does the majority opinion offer any reasoned
basis that might help apply its disclaimer for distinguishing
lawful from unlawful disclosures. In the absence of a reasoned
explanation of the disclaimer's meaning and rationale,
the disclaimer is unlikely to withdraw the invitation to litigation
that the majority's general broad “content-based” test
issues. That test invites courts around the Nation to apply
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an unpredictable First Amendment to ordinary social and
economic regulation, striking down disclosure laws that
judges may disfavor, while upholding others, all without
grounding their decisions in reasoned principle.
Notably, the majority says nothing about limiting its language
to the kind of instance where the Court has traditionally
found the First Amendment wary of content-based laws,
namely, in cases of viewpoint discrimination. “Contentbased
laws merit this protection because they present, albeit
sometimes in a subtler form, the same dangers as laws that
regulate speech based on viewpoint.” Reed, 576 U. S.,
at 174 (Alito, J., concurring). Accordingly, “[ l]imiting
speech based on its `topic' or `subject' ” can favor “those who
do not want to disturb the status quo.” Ibid. But the mine
run of disclosure requirements do nothing of that sort.
They simply alert the public about child seatbelt laws, the
location of stairways, and the process to have their garbage
collected, among other things.
Precedent does not require a test such as the majority's.
Rather, in saying the Act is not a longstanding health and
safety law, the Court substitutes its own approach—without
a defning standard—for an approach that was reasonably
clear. Historically, the Court has been wary of claims that
regulation of business activity, particularly health-related
activity, violates the Constitution. Ever since this Court
departed from the approach it set forth in Lochner v. New
York, 198 U. S. 45 (1905), ordinary economic and social
legislation has been thought to raise little constitutional concern.
As Justice Brandeis wrote, typically this Court's function
in such cases “is only to determine the reasonableness
of the Legislature's belief in the existence of evils and in
the effectiveness of the remedy provided.” New State Ice
Co. v. Liebmann, 285 U. S. 262, 286–287 (1932) (dissenting
opinion); see Williamson v. Lee Optical of Okla., Inc., 348
U. S. 483, 486–488 (1955) (adopting the approach of Justice
Brandeis).
Cite as: 585 U. S. 755 (2018) 785
Breyer, J., dissenting
The Court has taken this same respectful approach to economic
and social legislation when a First Amendment claim
like the claim present here is at issue. See, e. g., Zauderer
v. Offce of Disciplinary Counsel of Supreme Court of Ohio,
471 U. S. 626, 651 (1985) (upholding reasonable disclosure requirements
for attorneys); Milavetz, Gallop & Milavetz,
P. A. v. United States, 559 U. S. 229, 252–253 (2010) (same);
cf. Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm'n of N. Y., 447 U. S. 557, 563–564 (1980) (applying intermediate
scrutiny to other restrictions on commercial
speech); In re R. M. J., 455 U. S. 191, 203 (1982) (no First
Amendment protection for misleading or deceptive commercial
speech). But see Sorrell v. IMS Health Inc., 564 U. S.
552 (2011) (striking down regulation of pharmaceutical drugrelated
information).
Even during the Lochner era, when this Court struck
down numerous economic regulations concerning industry,
this Court was careful to defer to state legislative judgments
concerning the medical profession. The Court took the view
that a State may condition the practice of medicine on any
number of requirements, and physicians, in exchange for following
those reasonable requirements, could receive a license
to practice medicine from the State. Medical professionals
do not, generally speaking, have a right to use the
Constitution as a weapon allowing them rigorously to control
the content of those reasonable conditions. See, e. g., Dent
v. West Virginia, 129 U. S. 114 (1889) (upholding medical licensing
requirements); Hawker v. New York, 170 U. S. 189
(1898) (same); Collins v. Texas, 223 U. S. 288, 297–298 (1912)
(recognizing the “right of the State to adopt a policy even
upon medical matters concerning which there is difference
of opinion and dispute”); Lambert v. Yellowley, 272 U. S. 581,
596 (1926) (“[T]here is no right to practice medicine which is
not subordinate to the police power of the States”); Graves
v. Minnesota, 272 U. S. 425, 429 (1926) (statutes “regulating
the practice of medicine” involve “very different considera786
NATIONAL INSTITUTE OF FAMILY AND LIFE
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tions” from those applicable to “trades [such as] locomotive
engineers and barbers”); Semler v. Oregon Bd. of Dental Examiners,
294 U. S. 608, 612 (1935) (upholding state regulation
of dentistry given the “vital interest of public health”). In
the name of the First Amendment, the majority today treads
into territory where the pre-New Deal, as well as the post-
New Deal, Court refused to go.
The Court, in justifcation, refers to widely accepted First
Amendment goals, such as the need to protect the Nation
from laws that “ `suppress unpopular ideas or information' ”
or inhibit the “ `marketplace of ideas in which truth will ultimately
prevail.' ” Ante, at 771–772; see New York Times Co.
v. Sullivan, 376 U. S. 254, 269 (1964). The concurrence highlights
similar First Amendment interests. Ante, at 780. I,
too, value this role that the First Amendment plays—in
an appropriate case. But here, the majority enunciates a
general test that reaches far beyond the area where this
Court has examined laws closely in the service of those goals.
And in suggesting that heightened scrutiny applies to much
economic and social legislation, the majority pays those First
Amendment goals a serious disservice through dilution.
Using the First Amendment to strike down economic and
social laws that legislatures long would have thought themselves
free to enact will, for the American public, obscure,
not clarify, the true value of protecting freedom of speech.
B
Still, what about this specifc case? The disclosure at
issue here concerns speech related to abortion. It involves
health, differing moral values, and differing points of view.
Thus, rather than set forth broad, new, First Amendment
principles, I believe that we should focus more directly upon
precedent more closely related to the case at hand. This
Court has more than once considered disclosure laws relating
to reproductive health. Though those rules or holdings
Cite as: 585 U. S. 755 (2018) 787
Breyer, J., dissenting
have changed over time, they should govern our disposition
of this case.
I begin with Akron v. Akron Center for Reproductive
Health, Inc., 462 U. S. 416 (1983). In that case the Court
considered a city ordinance requiring a doctor to tell a
woman contemplating an abortion about the
“status of her pregnancy, the development of her fetus,
the date of possible viability, the physical and emotional
complications that may result from an abortion, and the
availability of agencies to provide her with assistance
and information with respect to birth control, adoption,
and childbirth[, and] `the particular risks associated
with her own pregnancy and the abortion technique to
be employed.' ” Id., at 442 (quoting Akron Codifed Ordinances
§ 1870.06(C) (1978)).
The ordinance further required a doctor to tell such a woman
that “ `the unborn child is a human life from the moment of
conception.' ” Akron, supra, at 444 (quoting Akron Codifed
Ordinances § 1870.06(B)(3)).
The plaintiffs claimed that this ordinance violated a woman's
constitutional right to obtain an abortion. And this
Court agreed. The Court stated that laws providing for a
woman's “informed consent” to an abortion were normally
valid, for they helped to protect a woman's health. Akron,
462 U. S., at 443–444. Still, the Court held that the law at
issue went “beyond permissible limits” because “much of the
information required [was] designed not to inform the woman's
consent but rather to persuade her to withhold it altogether.”
Id., at 444. In the Court's view, the city had
placed unreasonable “ `obstacles in the path of the doctor
upon whom [the woman is] entitled to rely for advice in connection
with her decision.' ” Id., at 445 (quoting Whalen v.
Roe, 429 U. S. 589, 604, n. 33 (1977); alteration in original).
Several years later, in Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U. S. 747 (1986), the
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Breyer, J., dissenting
Court considered a Pennsylvania statute that “prescribe[d]
in detail the method for securing `informed consent' ” to an
abortion. Id., at 760. The statute required the doctor to
tell the patient about health risks associated with abortion,
possibly available benefts for prenatal care, childbirth, and
neonatal care, and agencies offering alternatives to abortion.
Id., at 760–761. In particular it required the doctor to give
the patient printed materials that, among other things, said:
“ ` “There are many public and private agencies willing
and able to help you to carry your child to term, and to
assist you and your child after your child is born,
whether you choose to keep your child or place her or
him for adoption. The Commonwealth of Pennsylvania
strongly urges you to contact them before making a fnal
decision about abortion. The law requires that your
physician or his agent give you the opportunity to call
agencies like these before you undergo an abortion.” ' ”
Id., at 761 (quoting 18 Pa. Cons. Stat. § 3208(a)(1) (1982)).
The Court, as in Akron, held that the statute's information
requirements violated the Constitution. They were designed
“ `not to inform the woman's consent but rather to
persuade her to withhold it altogether.' ” Thornburgh,
supra, at 762 (quoting Akron, supra, at 444). In the Court's
view, insistence on telling the patient about the availability
of “medical assistance benefts” if she decided against an
abortion was a “poorly disguised elemen[t] of discouragement
for the abortion decision,” and the law was the “antithesis of
informed consent.” Thornburgh, supra, at 763–764.
These cases, however, whatever support they may have
given to the majority's view, are no longer good law. In
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, the Court again considered a state law that required
doctors to provide information to a woman deciding
whether to proceed with an abortion. That law required the
doctor to tell the woman about the nature of the abortion
procedure, the health risks of abortion and of childbirth, the
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Breyer, J., dissenting
“ `probable gestational age of the unborn child,' ” and the
availability of printed materials describing the fetus, medical
assistance for childbirth, potential child support, and the
agencies that would provide adoption services (or other alternatives
to abortion). Id., at 881 ( joint opinion of O'Connor,
Kennedy, and Souter, JJ.) (quoting 18 Pa. Cons. Stat.
§ 3205 (1990)).
This time a joint opinion of the Court, in judging whether
the State could impose these informational requirements,
asked whether doing so imposed an “undue burden” upon
women seeking an abortion. Casey, 505 U. S., at 882–883.
It held that it did not. Ibid. Hence the statute was constitutional.
Id., at 874 (plurality opinion). The joint opinion
stated that the statutory requirements amounted to “reasonable
measure[s] to ensure an informed choice, one which
might cause the woman to choose childbirth over abortion.”
Id., at 883. And it “overruled” portions of the two cases,
Akron and Thornburgh, that might indicate the contrary.
505 U. S., at 882.
In respect to overruling the earlier cases, it wrote:
“To the extent Akron I and Thornburgh fnd a constitutional
violation when the government requires, as it
does here, the giving of truthful, nonmisleading information
about the nature of the procedure, the attendant
health risks and those of childbirth, and the `probable
gestational age' of the fetus, those cases go too far, are
inconsistent with Roe's acknowledgment of an important
interest in potential life, and are overruled.” Ibid.
The joint opinion specifcally discussed the First Amendment,
the constitutional provision now directly before us. It
concluded that the statute did not violate the First Amendment.
It wrote:
“All that is left of petitioners' argument is an asserted
First Amendment right of a physician not to provide
information about the risks of abortion, and childbirth,
in a manner mandated by the State. To be sure, the
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Breyer, J., dissenting
physician's First Amendment rights not to speak are implicated,
see Wooley v. Maynard, 430 U. S. 705 (1977),
but only as part of the practice of medicine, subject to
reasonable licensing and regulation by the State, cf.
Whalen v. Roe, 429 U. S. 589, 603 (1977). We see no
constitutional infrmity in the requirement that the physician
provide the information mandated by the State
here.” Id., at 884.
Thus, the Court considered the State's statutory requirements,
including the requirement that the doctor must inform
his patient about where she could learn how to have
the newborn child adopted (if carried to term) and how she
could fnd related fnancial assistance. Id., at 881. To repeat
the point, the Court then held that the State's requirements
did not violate either the Constitution's protection of
free speech or its protection of a woman's right to choose to
have an abortion.
C
Taking Casey as controlling, the law's demand for evenhandedness
requires a different answer than that perhaps
suggested by Akron and Thornburgh. If a State can lawfully
require a doctor to tell a woman seeking an abortion
about adoption services, why should it not be able, as here,
to require a medical counselor to tell a woman seeking prenatal
care or other reproductive healthcare about childbirth
and abortion services? As the question suggests, there is
no convincing reason to distinguish between information
about adoption and information about abortion in this context.
After all, the rule of law embodies evenhandedness,
and “what is sauce for the goose is normally sauce for the
gander.” Heffernan v. City of Paterson, 578 U. S. 266, 272
(2016).
1
The majority tries to distinguish Casey as concerning a
regulation of professional conduct that only incidentally burCite
as: 585 U. S. 755 (2018) 791
Breyer, J., dissenting
dened speech. Ante, at 769–770. Casey, in its view, applies
only when obtaining “informed consent” to a medical procedure
is directly at issue.
This distinction, however, lacks moral, practical, and legal
force. The individuals at issue here are all medical personnel
engaging in activities that directly affect a woman's
health—not signifcantly different from the doctors at issue
in Casey. After all, the statute here applies only to “primary
care clinics,” which provide “services for the care and
treatment of patients for whom the clinic accepts responsibility.”
Cal. Code Regs., tit. 22, § 75026(a); see Cal. Health &
Safety Code Ann. §§ 123471(a), 1204, 1206(h). And the persons
responsible for patients at those clinics are all persons
“licensed, certifed or registered to provide” pregnancyrelated
medical services. Cal. Code Regs., tit. 22, § 75026(c).
The petitioners have not, either here or in the District Court,
provided any example of a covered clinic that is not operated
by licensed doctors or what the statute specifes are equivalent
professionals. See, e. g., App. to Pet. for Cert. 92a
(identifying two obstetrician/gynecologists, a radiologist, an
anesthesiologist, a certifed nurse midwife, a nurse practitioner,
10 nurses, and two registered diagnostic medical sonographers
on staff).
The Act requires these medical professionals to disclose
information about the possibility of abortion (including potential
fnancial help) that is as likely helpful to granting “informed
consent” as is information about the possibility of
adoption and childbirth (including potential fnancial help).
That is why I fnd it impossible to drive any meaningful legal
wedge between the law, as interpreted in Casey, and the law
as it should be applied in this case. If the law in Casey
regulated speech “only `as part of the practice of medicine,' ”
ante, at 770 (quoting Casey, supra, at 884), so too here.
The majority contends that the disclosure here is unrelated
to a “medical procedure,” unlike that in Casey, and so
the State has no reason to inform a woman about alterna792
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tives to childbirth (or, presumably, the health risks of childbirth).
Ante, at 770. Really? No one doubts that choosing
an abortion is a medical procedure that involves certain
health risks. See Whole Woman's Health v. Hellerstedt, 579
U. S. 582, 618 (2016) (identifying the mortality rate in Texas
as 1 in 120,000 to 144,000 abortions). But the same is true
of carrying a child to term and giving birth. That is why
prenatal care often involves testing for anemia, infections,
measles, chicken pox, genetic disorders, diabetes, pneumonia,
urinary tract infections, preeclampsia, and hosts of other
medical conditions. Childbirth itself, directly or through
pain management, risks harms of various kinds, some connected
with caesarean or surgery-related deliveries, some
related to more ordinary methods of delivery. Indeed, nationwide
“childbirth is 14 times more likely than abortion to
result in” the woman's death. Ibid. Health considerations
do not favor disclosure of alternatives and risks associated
with the latter but not those associated with the former.
In any case, informed consent principles apply more
broadly than only to discrete “medical procedures.” Prescription
drug labels warn patients of risks even though taking
prescription drugs may not be considered a “medical procedure.”
21 CFR § 201.56 (2017). In California, clinics that
screen for breast cancer must post a sign in their offces notifying
patients that, if they are diagnosed with breast cancer,
their doctor must provide “a written summary of alternative
effcacious methods of treatment,” a notifcation that does not
relate to the screening procedure at issue. Cal. Health &
Safety Code Ann. § 109277. If even these disclosures fall
outside the majority's cramped view of Casey and informed
consent, it undoubtedly would invalidate the many other disclosures
that are routine in the medical context as well.
Supra, at 782–783.
The majority also fnds it “[t]ellin[g]” that general practice
clinics—i. e., paid clinics—are not required to provide the licensed
notice. Ante, at 770. But the lack-of-information
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Breyer, J., dissenting
problem that the statute seeks to ameliorate is a problem
that the State explains is commonly found among low-income
women. See Brief for State Respondents 5–6. That those
with low income might lack the time to become fully informed
and that this circumstance might prove disproportionately
correlated with income is not intuitively surprising.
Nor is it surprising that those with low income, whatever
they choose in respect to pregnancy, might fnd information
about fnancial assistance particularly useful. There is
“nothing inherently suspect” about this distinction, McCullen
v. Coakley, 573 U. S. 464, 483 (2014), which, is not “based
on the content of [the advocacy] each group offers,” Turner
Broadcasting System, Inc. v. FCC, 512 U. S. 622, 658–659
(1994), but upon the patients the group generally serves and
the needs of that population.
2
Separately, fnding no First Amendment infrmity in the
licensed notice is consistent with earlier Court rulings. For
instance, in Zauderer we upheld a requirement that attorneys
disclose in their advertisements that clients might be
liable for signifcant litigation costs even if their lawsuits
were unsuccessful. 471 U. S., at 650. We refused to apply
heightened scrutiny, instead asking whether the disclosure
requirements were “reasonably related to the State's interest
in preventing deception of consumers.” Id., at 651.
The majority concludes that Zauderer does not apply because
the disclosure “in no way relates to the services that
licensed clinics provide.” Ante, at 769. But information
about state resources for family planning, prenatal care, and
abortion is related to the services that licensed clinics provide.
These clinics provide counseling about contraception
(which is a family planning service), ultrasounds or pregnancy
testing (which is prenatal care), or abortion. Cal.
Health & Safety Code Ann. § 123471(a). The required disclosure
is related to the clinic's services because it provides
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information about state resources for the very same services.
A patient who knows that she can receive free prenatal care
from the State may well prefer to forgo the prenatal care
offered at one of the clinics here. And for those interested
in family planning and abortion services, information about
such alternatives is relevant information to patients offered
prenatal care, just as Casey considered information about
adoption to be relevant to the abortion decision.
Regardless, Zauderer is not so limited. Zauderer turned
on the “material differences between disclosure requirements
and outright prohibitions on speech.” 471 U. S., at
650. A disclosure requirement does not prevent speakers
“from conveying information to the public,” but “only require[
s] them to provide somewhat more information than
they might otherwise be inclined to present. ” Ibid.
Where a State's requirement to speak “purely factual and
uncontroversial information” does not attempt “to `prescribe
what shall be orthodox in politics, nationalism, religion, or
other matters of opinion or force citizens to confess by word
or act their faith therein,' ” it does not warrant heightened
scrutiny. Id., at 651 (quoting West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 642 (1943)).
In Zauderer, the Court emphasized the reason that the
First Amendment protects commercial speech at all: “the
value to consumers of the information such speech provides.”
471 U. S., at 651. For that reason, a professional's “constitutionally
protected interest in not providing any particular
factual information in his advertising is minimal.” Ibid.
But this rationale is not in any way tied to advertisements
about a professional's own services. For instance, it applies
equally to a law that requires doctors, when discharging a
child under eight years of age, to “provide to and discuss
with the parents . . . information on the current law requiring
child passenger restraint systems, safety belts, and the
transportation of children in rear seats.” Cal. Veh. Code
Ann. § 27363.5(a). Even though child seatbelt laws do not
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Breyer, J., dissenting
directly relate to the doctor's own services, telling parents
about such laws does nothing to undermine the fow of factual
information. Whether the context is advertising the
professional's own services or other commercial speech, a
doctor's First Amendment interest in not providing factual
information to patients is the same: minimal, because his professional
speech is protected precisely because of its informational
value to patients. There is no reason to subject such
laws to heightened scrutiny.
Accordingly, the majority's reliance on cases that prohibit
rather than require speech is misplaced. Ante, at 771–773.
I agree that “ `in the felds of medicine and public heath, . . .
information can save lives,' ” but the licensed disclosure
serves that informational interest by requiring clinics to notify
patients of the availability of state resources for family
planning services, prenatal care, and abortion, which—unlike
the majority's examples of normative statements, ante, at
772—is truthful and nonmisleading information. Abortion
is a controversial topic and a source of normative debate, but
the availability of state resources is not a normative statement
or a fact of debatable truth. The disclosure includes
information about resources available should a woman seek
to continue her pregnancy or terminate it, and it expresses
no offcial preference for one choice over the other. Similarly,
the majority highlights an interest that often underlies
our decisions in respect to speech prohibitions—the marketplace
of ideas. But that marketplace is fostered, not hindered,
by providing information to patients to enable them
to make fully informed medical decisions in respect to their
pregnancies.
Of course, one might take the majority's decision to mean
that speech about abortion is special, that it involves in this
case not only professional medical matters, but also views
based on deeply held religious and moral beliefs about the
nature of the practice. To that extent, arguably, the speech
here is different from that at issue in Zauderer. But assum796
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ing that is so, the law's insistence upon treating like cases
alike should lead us to reject the petitioners' arguments that
I have discussed. This insistence, the need for evenhandedness,
should prove particularly weighty in a case involving
abortion rights. That is because Americans hold strong, and
differing, views about the matter. Some Americans believe
that abortion involves the death of a live and innocent human
being. Others believe that the ability to choose an abortion
is “central to personal dignity and autonomy,” Casey, 505
U. S., at 851, and note that the failure to allow women to
choose an abortion involves the deaths of innocent women.
We have previously noted that we cannot try to adjudicate
who is right and who is wrong in this moral debate. But we
can do our best to interpret American constitutional law so
that it applies fairly within a Nation whose citizens strongly
hold these different points of view. That is one reason why
it is particularly important to interpret the First Amendment
so that it applies evenhandedly as between those who
disagree so strongly. For this reason too a Constitution that
allows States to insist that medical providers tell women
about the possibility of adoption should also allow States
similarly to insist that medical providers tell women about
the possibility of abortion.
D
It is particularly unfortunate that the majority, through
application of so broad and obscure a standard, see supra, at
781–786, declines to reach remaining arguments that the Act
discriminates on the basis of viewpoint. Ante, at 765, n. 2.
The petitioners argue that it unconstitutionally discriminates
on the basis of viewpoint because it primarily covers
facilities with supporters, organizers, and employees who are
likely to hold strong pro-life views. They contend that the
statute does not cover facilities likely to hold neutral or prochoice
views, because it exempts facilities that enroll patients
in publicly funded programs that include abortion. In
doing so, they say, the statute unnecessarily imposes a disCite
as: 585 U. S. 755 (2018) 797
Breyer, J., dissenting
proportionate burden upon facilities with pro-life views, the
very facilities most likely to fnd the statute's references to
abortion morally abhorrent. Brief for Petitioners 31–37.
The problem with this argument lies in the record. Numerous
amicus briefs advance the argument. See, e. g.,
Brief for Scharpen Foundation, Inc., et al. as Amici Curiae
6–10; Brief for American Center for Law & Justice et al. as
Amici Curiae 7–13. Some add that women who use facilities
that are exempt from the statute's requirements (because
they enroll patients in two California state-run medical
programs that provide abortions) may still need the information
provided by the disclosure, Brief for CATO Institute as
Amicus Curiae 15, a point the majority adopts in concluding
that the Act is underinclusive, ante, at 774–775. But the
key question is whether these exempt clinics are signifcantly
more likely than are the pro-life clinics to tell or to have
told their pregnant patients about the existence of these
programs—in the absence of any statutory compulsion. If
so, it may make sense—in terms of the statute's informational
objective—to exempt them, namely, if there is no need
to cover them. See FACT Act § 1(d) (suggesting in general
terms that this is so). But, if there are not good reasons to
exempt these clinics from coverage, i. e., if, for example, they
too frequently do not tell their patients about the availability
of abortion services, the petitioners' claim of viewpoint discrimination
becomes much stronger.
The petitioners, however, did not develop this point in the
record below. They simply stated in their complaint that
the Act exempts “facilities which provide abortion services,
freeing them from the Act's disclosure requirements, while
leaving pro-life facilities subject to them.” App. to Pet. for
Cert. 104a. And in the District Court they relied solely on
the allegations of their complaint, provided no supporting
declarations, and contended that discovery was unnecessary.
Id., at 47a, 50a, 68a. The District Court concluded that the
reason for the Act's exemptions was that those clinics “pro798
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vide the entire spectrum of services required of the notice,”
and that absent discovery, “there is no evidence to suggest
the Act burdens only” pro-life conduct. Id., at 68a. Similarly,
the petitioners pressed the claim in the Court of Appeals.
Id., at 20a–22a. But they did not supplement the
record. Consequently, that court reached the same conclusion.
Given the absence of evidence in the record before the
lower courts, the “viewpoint discrimination” claim could not
justify the issuance of a preliminary injunction.
II
The second statutory provision covers pregnancy-related
facilities that provide women with certain medical-type services
(such as obstetric ultrasounds or sonograms, pregnancy
diagnosis, counseling about pregnancy options, or prenatal
care), are not licensed as medical facilities by the State, and
do not have a licensed medical provider on site. Cal.
Health & Safety Code Ann. § 123471(b)(1). The statute says
that such a facility must disclose that it is not “licensed as a
medical facility.” § 123472(b). And it must make this disclosure
in a posted notice and in advertising. Ibid.
The majority does not question that the State's interest
(ensuring that “ `pregnant women in California know when
they are getting medical care from licensed professionals' ”)
is the type of informational interest that Zauderer encompasses.
Ante, at 765, 776. Nor could it. In Riley, 487 U. S.
781, the Court noted that the First Amendment would permit
a requirement for “professional fundraisers to disclose
their professional status”—nearly identical to the unlicensed
disclosure at issue here. Id., at 799, and n. 11; see also id.,
at 804 (Scalia, J., concurring in part and concurring in judgment)
(noting that this requirement was not aimed at combating
deception). Such informational interests have long
justifed regulations in the medical context. See, e. g., Dent,
129 U. S., at 122 (upholding medical licensing requirements
that “tend to secure [a State's citizens] against the conseCite
as: 585 U. S. 755 (2018) 799
Breyer, J., dissenting
quences of ignorance and incapacity, as well as of deception
and fraud”); Semler, 294 U. S., at 611 (upholding state dentistry
regulation that “afford[ed] protection against ignorance,
incapacity and imposition”).
Nevertheless, the majority concludes that the State's
interest is “ `purely hypothetical' ” because unlicensed clinics
provide innocuous services that do not require a medical
license. Ante, at 776. To do so, it applies a searching
standard of review based on our precedents that deal with
speech restrictions, not disclosures. Ibid. (citing, e. g., In
re R. M. J., 455 U. S., at 203; Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U. S. 748,
772, n. 24 (1976); Bates v. State Bar of Ariz., 433 U. S. 350,
384 (1977); and Zauderer, 471 U. S., at 649 (portion of opinion
considering speech restrictions, not disclosures)). This approach
is incompatible with Zauderer. See Zauderer,
supra, at 651 (upholding attorney disclosure requirements
where “reasonably related to the State's interest”); Milavetz,
559 U. S., at 250–253 (same).
There is no basis for fnding the State's interest “hypothetical.”
The legislature heard that information-related delays
in qualifed healthcare negatively affect women seeking to
terminate their pregnancies as well as women carrying their
pregnancies to term, with delays in qualifed prenatal care
causing life-long health problems for infants. Reproductive
FACT Act: Hearing on Assembly B. 775 before the Senate
Health Committee, 2015 Cal. Leg. Sess. Even without such
testimony, it is “self-evident” that patients might think they
are receiving qualifed medical care when they enter facilities
that collect health information, perform obstetric ultrasounds
or sonograms, diagnose pregnancy, and provide
counseling about pregnancy options or other prenatal care.
Milavetz, supra, at 251. The State's conclusion to that
effect is certainly reasonable.
The majority also suggests that the Act applies too
broadly, namely, to all unlicensed facilities “no matter what
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the facilities say on site or in their advertisements.” Ante,
at 777. But the Court has long held that a law is not unreasonable
merely because it is overinclusive. For instance, in
Semler the Court upheld as reasonable a state law that prohibited
licensed dentists from advertising that their skills
were superior to those of other dentists. 294 U. S., at 609.
A dentist complained that he was, in fact, better than other
dentists. Id., at 610. Yet the Court held that “[i]n framing
its policy, the legislature was not bound to provide for
determinations of the relative profciency of particular practitioners.”
Id., at 612. To the contrary, “[t]he legislature
was entitled to consider the general effects of the practices
which it described, and if these effects were injurious in
facilitating unwarranted and misleading claims, to counteract
them by a general rule, even though in particular instances
there might be no actual deception or misstatement.” Id.,
at 613.
Relatedly, the majority suggests that the Act is suspect
because it covers some speakers but not others. Ante, at
777–778. I agree that a law's exemptions can reveal viewpoint
discrimination (although the majority does not reach
this point). “ `[A]n exemption from an otherwise permissible
regulation of speech may represent a governmental “attempt
to give one side of a debatable public question an advantage
in expressing its views to the people.” ' ” McCullen, 573
U. S., at 483 (quoting City of Ladue v. Gilleo, 512 U. S. 43, 51
(1994)). Such speaker-based laws warrant heightened scrutiny
“when they refect the Government's preference for the
substance of what the favored speakers have to say (or aversion
to what the disfavored speakers have to say).” Turner
Broadcasting System, Inc., 512 U. S., at 658. Accordingly,
where a law's exemptions “facilitate speech on only one side
of the abortion debate,” there is a “clear form of viewpoint
discrimination.” McCullen, supra, at 485.
There is no cause for such concern here. The Act does
not, on its face, distinguish between facilities that favor
Cite as: 585 U. S. 755 (2018) 801
Breyer, J., dissenting
pro-life and those that favor pro-choice points of view. Nor
is there any convincing evidence before us or in the
courts below that discrimination was the purpose or the effect
of the statute. Notably, California does not single out
pregnancy-related facilities for this type of disclosure requirement.
See, e. g., Cal. Bus. & Prof. Code Ann. § 2053.6
(West 2012) (unlicensed providers of alternative health services
must disclose that “he or she is not a licensed physician”
and “the services to be provided are not licensed by the
state”). And it is unremarkable that the State excluded the
provision of family planning and contraceptive services as
triggering conditions. Ante, at 777. After all, the State
was seeking to ensure that “pregnant women in California
know when they are getting medical care from licensed professionals,”
and pregnant women generally do not need contraceptive
services.
Finally, the majority concludes that the Act is overly burdensome.
Ante, at 778. I agree that “unduly burdensome
disclosure requirements might offend the First Amendment.”
Zauderer, supra, at 651. But these and similar
claims are claims that the statute could be applied unconstitutionally,
not that it is unconstitutional on its face. Compare
New York State Club Assn., Inc. v. City of New York,
487 U. S. 1, 14 (1988) (a facial overbreadth challenge must
show “from actual fact” that a “substantial number of instances
exist in which the Law cannot be applied constitutionally”),
with Chicago v. Morales, 527 U. S. 41, 74 (1999)
(Scalia, J., dissenting) (an as-applied challenge asks whether
“the statute is unconstitutional as applied to this party, in
the circumstances of this case”). And it will be open to the
petitioners to make these claims if and when the State
threatens to enforce the statute in this way. But facial relief
is inappropriate here, where the petitioners “fail” even “to
describe [these] instances of arguable overbreadth of the contested
law,” Washington State Grange v. Washington State
Republican Party, 552 U. S. 442, 449–450, n. 6 (2008), where
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“[n]o record was made in this respect,” and where the petitioners
thus have not shown “from actual fact” that a “substantial
number of instances exist in which the Law cannot
be applied constitutionally,” New York State Club Assn.,
supra, at 14.
For instance, the majority highlights that the statute requires
facilities to write their “medical license” disclaimers
in 13 languages. Ante, at 778. As I understand the Act, it
would require disclosure in no more than two languages—
English and Spanish—in the vast majority of California's 58
counties. The exception is Los Angeles County, where,
given the large number of different-language speaking
groups, expression in many languages may prove necessary
to communicate the message to those whom that message
will help. Whether the requirement of 13 different languages
goes too far and is unnecessarily burdensome in light
of the need to secure the statutory objectives is a matter
that concerns Los Angeles County alone, and it is a proper
subject for a Los Angeles-based as-applied challenge in light
of whatever facts a plaintiff fnds relevant. At most, such
facts might show a need for fewer languages, not invalidation
of the statute.
* * *
For these reasons I would not hold the California statute
unconstitutional on its face, I would not require the District
Court to issue a preliminary injunction forbidding its
enforcement, and I respectfully dissent from the majority's
contrary conclusions.
OCTOBER TERM, 2017 803
Syllabus
FLORIDA v. GEORGIA
on exceptions to report of special master
No. 142, Orig. Argued January 8, 2018—Decided June 27, 2018
This original action concerns the proper apportionment of water from an
interstate river basin. Three rivers form the heart of the Basin. The
Chattahoochee and Flint Rivers begin near Atlanta, fow south through
Georgia, and ultimately converge at Lake Seminole, just north of Florida,
where the Apalachicola River begins and fows 106 miles south into
the Gulf of Mexico. In 2013, Florida, the downstream State, sued Georgia,
the upstream State, asking the Court to issue a decree equitably
apportioning the Basin's waters. The Court agreed to exercise its original
jurisdiction and appointed a Special Master. The United States
declined to waive its sovereign immunity from suit in the case. After
conducting lengthy evidentiary proceedings, the Master submitted a Report
recommending that the Court dismiss Florida's complaint. That
recommendation, the parties agree, turns on a single issue—namely,
whether Florida met its initial burden in respect to redressability. The
Master concluded that Florida failed to make the requisite showing because
it did not present clear and convincing evidence that its injuries
could be redressed by a decree capping Georgia's upstream water consumption
if the decree does not also bind the Army Corps of Engineers.
Florida has fled exceptions to the Master's Report.
Held:
1. The Special Master applied too strict a standard in concluding that
Florida failed to meet its initial burden of demonstrating that the Court
can eventually fashion an effective equitable decree. Pp. 814–823.
(a) Where, as here, the Court is asked to resolve an interstate
water dispute raising questions beyond the interpretation of specifc language
of an interstate compact, the doctrine of equitable apportionment
applies. In this realm, several related but more specifc sets of principles
guide the Court's review. First, both Georgia and Florida possess
“an equal right to make a reasonable use of the waters of ” the Flint
River. United States v. Willow River Power Co., 324 U. S. 499, 505.
Second, when confronted with competing claims to interstate water, the
Court's “effort always is to secure an equitable apportionment without
quibbling over formulas.” New Jersey v. New York, 283 U. S. 336, 343.
Third, in light of the sovereign status and “equal dignity” of States, a
complaining State's burden is “much greater” than the burden ordinarily
shouldered by a private party seeking an injunction. Connecticut v.
804 FLORIDA v. GEORGIA
Syllabus
Massachusetts, 282 U. S. 660, 669. Among other things, it must demonstrate,
by “ `clear and convincing evidence,' ” that it has suffered a
“ `threatened invasion of rights' ” that is “ `of serious magnitude.' ”
Washington v. Oregon, 297 U. S. 517, 522. And to the extent the Court
has addressed the “initial burden” a State bears in respect to redressability,
the Court has said that “it should be clear that [the complaining]
State has not merely some technical right, but also a right with a corresponding
beneft” as a precondition to any equitable apportionment.
Kansas v. Colorado, 206 U. S. 46, 102, 109. An effort to shape a decree
cannot be “a vain thing.” Foster v. Mansfeld, C. & L. M. R. Co., 146
U. S. 88, 101. Finally, because equitable apportionment is “ `fexible,' ”
not “formulaic,” this Court will seek to “arrive at a ` “just and equitable”
apportionment' of an interstate stream” by “consider[ing] `all relevant
factors,' ” South Carolina v. North Carolina, 558 U. S. 256, 271, including,
inter alia, “ `physical and climatic conditions, the consumptive use
of water in the several sections of the river, the character and rate of
return fows, the extent of established uses, the availability of storage
water, the practical effect of wasteful uses on downstream areas, [and]
the damage to upstream areas as compared to the benefts to downstream
areas if a limitation is imposed on the former,' ” Colorado v.
New Mexico, 459 U. S. 176, 183. Because all relevant factors must be
weighed, extensive and specifc factual fndings are essential for the
Court to properly apply the doctrine of equitable apportionment. See
Nebraska v. Wyoming, 325 U. S. 589, 618. Pp. 814–819.
(b) The Special Master applied too strict a standard when he determined
that the Court would not be able to fashion an appropriate equitable
decree. The Master referred to this as a “threshold” showing. But
it is “threshold” only in the sense that the Master has not yet determined
key remedy-related matters, including the approximate amount
of water that must fow into the Apalachicola River in order for Florida
to receive a signifcant beneft from a cap on Georgia's use of Flint River
waters. Unless and until the Special Master makes the fndings of fact
necessary to determine the nature and scope of likely harm caused by
the absence of water and the amount of additional water necessary to
ameliorate that harm signifcantly, the complaining State should not
have to prove with specifcity the details of an eventually workable decree
by “clear and convincing” evidence. Rather, the complaining State
should have to show that, applying the principles of “fexibility” and
“approximation,” it is likely to prove possible to fashion such a decree.
To require “clear and convincing evidence” about the workability of a
decree before the Court or a Special Master has a view about likely
harms and likely amelioration is, at least in this case, to put the cart
before the horse. Pp. 820–823.
Cite as: 585 U. S. 803 (2018) 805
Syllabus
2. The Court reserves judgment as to the ultimate disposition of this
case, addressing here only the narrow “threshold” question the Master
addressed below—namely, whether Florida has shown that its “injur[ies
can] effectively be redressed by limiting Georgia's consumptive use of
water from the Basin without a decree binding the Corps.” Report 30–
31. Florida has made a legally suffcient showing as to the possibility
of fashioning an effective remedial decree. Pp. 823–841.
(a) The Report makes several key assumptions. First, the Master
assumed Florida has suffered harm as a result of decreased water fow
into the Apalachicola River. Second, the Master further assumed that
Florida has shown that Georgia, contrary to equitable principles, has
taken too much water from the Flint River. Third, the Master assumed
that Georgia's inequitable use of the water injured Florida. At this
stage of the proceeding and in light of these assumptions, Florida made
a suffcient showing that the extra water that would result from its
proposed consumption cap would both lead to increased streamfow in
Florida's Apalachicola River and signifcantly redress the economic and
ecological harm that Florida has alleged. In addition, the United States
has made clear that the Corps will cooperate in helping to implement
any determinations and obligations the Court sets forth in a fnal decree
in this case. While the Corps must take account of a variety of circumstances
and statutory obligations when it allocates water, it cannot now
be said that an effort to shape a decree here will prove “a vain thing,”
Foster, supra, at 101, since the record indicates that, if necessary and
with the help of the United States, the Special Master, and the parties,
the Court should be able to fashion a decree. Pp. 824–839.
(b) Further fndings, however, are needed on all of these evidentiary
issues. Florida will be entitled to a decree only if it is shown that
“the benefts of the [apportionment] substantially outweigh the harm
that might result.” Colorado, 459 U. S., at 187. On remand, before
fashioning a remedy, the Special Master must address several evidentiary
questions that are assumed or found plausible here. Pp. 839–841.
Case remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Ginsburg, and Sotomayor, JJ., joined. Thomas, J., fled
a dissenting opinion, in which Alito, Kagan, and Gorsuch, JJ., joined,
post, p. 843.
Gregory G. Garre argued the cause for plaintiff. With
him on the briefs were Pamela Jo Bondi, Attorney General
of Florida, Amit Agarwal, Solicitor General, Jonathan L.
806 FLORIDA v. GEORGIA
Opinion of the Court
Williams, Deputy Solicitor General, Jonathan Glogau, Special
Counsel, Philip J. Perry, Jamie L. Wine, Claudia M.
O'Brien, Abid R. Qureshi, Benjamin W. Snyder, Frederick
L. Aschauer, Paul N. Singarella, Christopher M. Kise,
James A. McKee, and Matthew Z. Leopold.
Craig S. Primis argued the cause for defendant. With
him on the brief were Christopher M. Carr, Attorney General
of Georgia, Sarah Hawkins Warren, Solicitor General,
Christopher Landau, K. Winn Allen, Devora W. Allon, and
Andrew Pruitt.
Deputy Solicitor General Kneedler argued the cause for
the United States as amicus curiae supporting overruling
plaintiff 's Exception 2C. With him on the brief were Acting
Solicitor General Walls, Deputy Assistant Attorney General
Grant, Ann O'Connell, and Michael T. Gray.*
Justice Breyer delivered the opinion of the Court.
This case concerns the proper apportionment of the water
of an interstate river basin. Florida, a downstream State,
brought this lawsuit against Georgia, an upstream State,
claiming that Georgia has denied it an equitable share of the
basin's waters. We found that the dispute lies within our
original jurisdiction, and we appointed a Special Master to
take evidence and make recommendations.
After lengthy evidentiary proceedings, the Special Master
submitted a report in which he recommends that the Court
deny Florida's request for relief on the ground that “Florida
has not proven by clear and convincing evidence that its injury
can be redressed by an order equitably apportioning the
waters of the Basin.” Report of Special Master 3. The
*Briefs of amici curiae were fled for the State of Colorado by Cynthia
H. Coffman, Attorney General of Colorado, Frederick R. Yarger, Solicitor
General, Glenn E. Roper, Deputy Solicitor General, Karen M. Kwon, First
Assistant Attorney General, and Scott Steinbrecher, Assistant Solicitor
General; and for the Atlanta Regional Commission et al. by Chilton Davis
Varner, Patricia T. Barmeyer, and Lewis B. Jones.
Cite as: 585 U. S. 803 (2018) 807
Opinion of the Court
case is before us on Florida's exceptions to the Special Master's
Report.
In light of our examination of the Report and relevant portions
of the record, we remand the case to the Master for
further fndings and such further proceedings as the Master
believes helpful.
I
A
This original action arises out of a dispute over the division
of water from an interstate river basin known as the
Apalachicola-Chattahoochee-Flint River Basin. The Basin
drains an area of more than 20,000 square miles across the
southeastern United States. Three interstate rivers form
the heart of the Basin and are central to this case. They
are the Chattahoochee River, the Flint River, and the Apalachicola
River. It is easiest to think of these three rivers
as forming the capital letter “Y,” with each branch starting
at a different point in northeastern Georgia near Atlanta and
the stem running through the Florida Panhandle and emptying
into Apalachicola Bay in the Gulf of Mexico. See Appendix,
infra.
The Chattahoochee River is the western branch of this Yshaped
river system. It runs from the foothills of Georgia's
Blue Ridge Mountains, through most of Georgia, down to
Lake Seminole, just north of Florida. The United States
Army Corps of Engineers operates several dams and reservoirs
along the Chattahoochee where it both stores water
and controls the amount of water that fows downstream to
Florida in accordance with the terms of its recently revised
Master Water Control Manual (Master Manual). As we
shall discuss in more detail, Part IV, infra, the Corps' operations
are important to the resolution of this case.
The Flint River, the eastern branch of the “Y,” runs from
just south of Atlanta down to the same lake, namely, Lake
Seminole. Unlike the Chattahoochee, there are no dams
808 FLORIDA v. GEORGIA
Opinion of the Court
along the Flint River; it fows unimpeded through southern
Georgia's farmland, where the greatest share of the Basin's
water is consumed by agricultural irrigation.
After water from the Flint and Chattahoochee Rivers
mixes at Lake Seminole, the mixed water (now forming the
stem of the Y) continues its southward journey. At the
southern end of Lake Seminole, it fows through the Woodruff
Dam—a dam also controlled by the Corps. The mixed
waters then change their name. They are called the Apalachicola
River, and under that name they fow 106 miles
through the Florida Panhandle and fnally empty into the
Gulf of Mexico. There, the fresh water of the Apalachicola
River mixes with the Gulf 's saltwater, forming Apalachicola
Bay, which the United Nations, the United States, and the
State of Florida have all recognized as one of the Northern
Hemisphere's most productive estuaries. In total, the Apalachicola
River accounts for 35% of the fresh water that fows
along Florida's western coast. See Joint Exh. 168, p. 39.
B
Florida and Georgia have long disputed the apportionment
of the Basin's waters. Florida contends that Georgia is consuming
more than its equitable share of Flint River water.
It adds that, were Georgia to consume less water from the
Flint River, more water would fow into Lake Seminole, pass
through the Woodruff Dam and subsequently fow down the
Apalachicola River (the Y's stem) and into Apalachicola Bay.
The additional water that would result from a cap on Georgia's
consumption would, Florida argues, help (among other
things) to recover and maintain its oyster industry, which
collapsed following a drought in 2012. Georgia believes that
it should not have to cut back on its Flint River water consumption
because, in its view, it consumes no more than its
equitable share.
“This Court has recognized for more than a century its
inherent authority, as part of the Constitution's grant of original
jurisdiction, to equitably apportion interstate streams
Cite as: 585 U. S. 803 (2018) 809
Opinion of the Court
between States.” Kansas v. Nebraska, 574 U. S. 445, 454
(2015). But we have long noted our “preference” that 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)
(Kansas II)); see also id., at 392 (“[Interstate] controversies
may appropriately be composed by negotiation and agreement,
pursuant to the compact clause of the federal Constitution”);
Kansas v. Nebraska, supra, at 449 (describing codifcation
of Republican River Compact); Montana v. Wyoming,
563 U. S. 368, 372 (2011) (interpreting Yellowstone River
Compact); Kansas v. Colorado, 543 U. S. 86 (2004) (resolving
dispute over Arkansas River Compact).
We recognize that Florida and Georgia (sometimes with
the help of the Federal Government) have long tried to do
so. But so far they have failed.
In 1992, for example, the States signed a memorandum of
agreement in which they “committed to a process for cooperative
management and development” of the three-river Basin
and agreed to “participate fully as equal partners” in a “comprehensive,
basin-wide study” of its waters. Joint Exh. 004,
at 1. Five years later, the States signed—and Congress approved—
a compact, the Apalachicola-Chattahoochee-Flint
River Basin Compact, in which they agreed
“to develop an allocation formula for equitably apportioning
the surface waters of the ACF Basin among the
states while protecting the water quality, ecology and
biodiversity of the ACF.” 111 Stat. 2222–2223.
But fve years of negotiations under the Compact proved
fruitless, and in 2003, the Compact expired.
More than a decade later, in 2014, Congress again recognized
the need for an equitable apportionment of Basin waters.
See Water Resources Reform and Development Act of
2014, Pub. L. 113–121, § 1051(a), 128 Stat. 1259. But once
again, despite drought, expanding city populations, and a
dramatic increase in acreage devoted to agricultural irriga810
FLORIDA v. GEORGIA
Opinion of the Court
tion, no agreement has been reached. The “last effort to
reach an amicable resolution of this complex equitable apportionment
proceeding” in 2017 was “unsuccessful.” Report
24. The States instead have come to this Court.
II
A
In 2013, Florida, the downstream State, sought to sue
Georgia, the upstream State, asking us to exercise our “original
and exclusive jurisdiction” and issue a decree equitably
apportioning the waters of the Basin. 28 U. S. C. § 1251(a);
see U. S. Const., Art. III, § 2; see also this Court's Rule 17.
In its complaint, Florida alleged that Georgia's consumption
of Flint River water “reduce[s] the amount of water fowing
to the Apalachicola River at all times,” and noted that “the
effects are especially apparent during the low fow summer
and fall periods.” Complaint 9, ¶21; see also id., at 17, ¶49
(complaining that the impact of Georgia's water consumption
“is signifcant, particularly during dry periods”). In addition,
Florida alleged that “[a]s Georgia's upstream storage
and consumption grows over time, low fow events will become
more frequent and increase in severity, diminishing the
likelihood that key species will survive and precluding any
chance of recovery over the long term.” Id., at 20, ¶59. To
remedy these harms, Florida seeks a cap on Georgia's consumption
of water from the Flint River. Id., at 21.
Georgia fled a brief in opposition, arguing that Florida
failed to allege an injury suffcient to warrant this Court's
exercise of original jurisdiction. See State of Georgia's Opposition
to Florida's Motion for Leave To File a Complaint
31 (“Florida has not pleaded facts plausibly suggesting that
it will be able to establish clear and convincing evidence that
it suffers substantial injury as a result of Georgia's consumption
of water”). At our request, the United States fled a
brief in which it told us that “Florida has pleaded an interstate
water dispute of suffcient importance to warrant this
Cite as: 585 U. S. 803 (2018) 811
Opinion of the Court
Court's exercise of its original jurisdiction, and no other judicial
forum is suitable for resolving the overall controversy.”
Brief for United States as Amicus Curiae 12 (Sept. 18, 2014).
But, the United States also warned that “[p]ractical considerations
. . . weigh against the Court's resolution of Florida's
claims before the Corps has completed its process of updating
the Master Manual for the federal projects in the ACF
Basin.” Ibid. It suggested that the Court could “grant
Florida leave to fle, but stay or provide for tailoring of any
further proceedings until the Corps has issued the revised
Master Manual” in March 2017, id., at 13 (which Florida has
now done, see Brief for United States as Amicus Curiae 3,
n. 1, 10–12).
We subsequently agreed to exercise our original jurisdiction
and appointed a Special Master “with authority to . . .
direct subsequent proceedings,” “take such evidence as may
be introduced and such as he may deem it necessary to call
for,” and “submit Reports as he may deem appropriate.”
574 U. S. 1021 (2014).
At the outset, the United States declined to waive its sovereign
immunity from suit in this case. And shortly thereafter,
Georgia asked the Special Master to dismiss the case
on the grounds that the United States was a necessary party
but could not be forced to intervene. See Fed. Rule Civ.
Proc. 19(b). The Master concluded that the motion to dismiss
Florida's complaint should be denied. The Master reasoned
that a decree binding the Corps might not prove
necessary. Order on State of Georgia's Motion To Dismiss
14–15 (June 19, 2015). Rather, the Master concluded that
“the few facts before me at this stage of the proceeding support
the conclusion that” a cap on Georgia's Flint River
water consumption could, at least in principle, redress Florida's
injuries either by increasing the amount of water that
fows into Florida's Apalachicola River or by “render[ing] periods
of reduced fow releases [into the Apalachicola River]
fewer and further between because of the increased reser812
FLORIDA v. GEORGIA
Opinion of the Court
voir levels that would result from Georgia's reduced consumption.”
Id., at 14, and n. 5. The Special Master pointed
out that Florida would have to show that “a consumption cap
is justifed and will afford adequate relief.” Id., at 13.
B
The Master then held lengthy discovery and evidentiary
proceedings. See Brief for Georgia 11; post, at 864
(Thomas, J., dissenting) (“During their 18 months of discovery,
the parties produced 7.2 million pages of documents”).
Ultimately, the Master submitted a 70-page Report to this
Court in February 2017. He recommended that the Court
dismiss Florida's complaint. In particular, despite the very
large factual record amassed and “the extensive testimony
bearing on numerous issues,” the Special Master stated:
“I have concluded that there is a single, discrete issue
that resolves this case: even assuming that Florida has
sustained injury as a result of unreasonable upstream
water use by Georgia, can Florida's injury effectively
be redressed by limiting Georgia's consumptive use of
water from the Basin without a decree binding the
[Army] Corps [of Engineers]? I conclude that Florida
has not proven that its injury can be remedied without
such a decree. The evidence does not provide suffcient
certainty that an effective remedy is available without
the presence of the Corps as a party in this case.” Report
30–31 (emphasis added).
For present purposes, we note that Florida and Georgia
agree that the Master's recommendation “turned on a `single,
discrete issue'—whether Florida had shown that a cap
on Georgia's consumption would redress its injury if the decree
did not bind the Corps as well.” Florida Brief in Support
of Exceptions 23–24; see also Georgia's Reply to Florida's
Exceptions 23 (“The Special Master reserved ruling on
any issue other than effective redress”); Brief for United
States as Amicus Curiae 19–20 (Aug. 7, 2017) (same).
Cite as: 585 U. S. 803 (2018) 813
Opinion of the Court
In reviewing this determination, we do not agree with the
dissent's view that the Master applied the “ordinary balanceof-
harms test” that our equitable apportionment cases require.
Post, at 855 (opinion of Thomas, J.); see also Part
III–A, infra (describing equitable apportionment doctrine).
As we shall explain, the dissent's assertion that “the balance
of harms cannot tip in Florida's favor” is, at best, premature.
Post, at 877. That judgment may eventually prove right or
it may prove wrong. Here, as we just said, we consider only
the “single” and “threshold” question of “redressability”
upon which the Master rested his conclusion and which the
parties have now argued here. In determining precisely
what we now review, we rely upon (and do not go beyond)
the Report's specifc and key statements, which include the
following:
• “As a threshold matter, equitable apportionment is only
available to a state that has suffered `real and substantial
injury' as a result of proposed or actual upstream water
use” and “the injury must be redressable by the Court.”
Report 24 (emphasis added).
• “Florida points to real harm and, at the very least, likely
misuse of resources by Georgia. There is little question
that Florida has suffered harm from decreased fows in
the [Apalachicola] River,” including “an unprecedented
collapse of its oyster fsheries in 2012.” Id., at 31.
• “Much more could be said and would need to be said on
these [and other] issues . . . .” Id., at 34.
• “I need only address the narrow question of which party
bears the burden of proving injury and redressability.”
Id., at 28–29 (emphasis added).
• “Florida bears the burden to prove that the proposed
remedy will provide redress for Florida's injury.” Id.,
at 30.
• “Florida has not proven by clear and convincing evidence
that any additional streamfow in the Flint River or
814 FLORIDA v. GEORGIA
Opinion of the Court
in the Chattahoochee River would be released from Jim
Woodruff Dam into the Apalachicola River at a time that
would provide a material beneft to Florida (i. e., during
dry periods), thereby alleviating Florida's injury.”
Id., at 47 (emphasis added).
• “Florida has provided no evidence that a decree in this
case could provide an effective remedy during normal
(i. e., non-drought) periods.” Id., at 68.
• “[T]he Corps can likely offset increased streamfow in
the Flint River by storing additional water in its reservoirs
along the Chattahoochee River during dry periods
[and so] . . . [t]here is no guarantee that the Corps will
exercise its discretion to release or hold back water at
any particular time.” Id., at 69 (emphasis added).
• “[W]ithout the Corps as a party, the Court cannot order
the Corps to take any particular action.” Id., at 69–70.
C
Florida has fled exceptions to the Special Master's Report.
Florida frst challenges the legal standard the Master
applied in resolving what the Master called the “threshold”
question whether Florida had “proven . . . that its injury can
be redressed by an order equitably apportioning the waters
of the Basin.” Id., at 24, 3. The Master wrote that Florida
must meet a “clear and convincing evidence” evidentiary burden.
Id., at 3. Second, Florida argues that, in any event,
its showing in respect to redressability was suffcient. We
consider each of these exceptions in turn.
III
A
We note at the outset that our role in resolving disputes
between sovereign States under our original jurisdiction
“signifcantly differs from the one the Court undertakes in
suits between private parties.” Kansas v. Nebraska, 574
U. S., at 453 (internal quotation marks and alterations omitCite
as: 585 U. S. 803 (2018) 815
Opinion of the Court
ted). “In this singular sphere,” we have observed, “ `the
court may regulate and mould the process it uses in such
manner as in its judgment will best promote the purposes of
justice.' ” Id., at 454 (quoting Kentucky v. Dennison, 24
How. 66, 98 (1861)). We must approach interstate disputes
“in the untechnical spirit proper for dealing with a quasiinternational
controversy, remembering that there is no municipal
code governing the matter, and that this court may
be called on to adjust differences that cannot be dealt with
by Congress or disposed of by the legislature of either State
alone.” Virginia v. West Virginia, 220 U. S. 1, 27 (1911)
(Holmes, J.).
Where, as here, the Court is asked to resolve an interstate
water dispute raising questions beyond the interpretation of
specifc language of an interstate compact, the doctrine of
equitable apportionment governs our inquiry. See Colorado
v. New Mexico, 459 U. S. 176, 183 (1982) (Colorado I); Virginia
v. Maryland, 540 U. S. 56, 74, n. 9 (2003) (“Federal
common law governs interstate bodies of water, ensuring
that the water is equitably apportioned between the States
and that neither State harms the other's interest in the
river”). In this realm, we have kept in mind several related
but more specifc sets of principles.
First, as the Special Master pointed out, “the relevant
guiding principle in this case” is a simple one. Report 26–
27. Given the laws of the States, both Georgia and Florida
possess “ `an equal right to make a reasonable use of the
waters of the stream' ”—which, in this case, is the Flint
River. Id., at 26 (quoting United States v. Willow River
Power Co., 324 U. S. 499, 505 (1945)); see also Colorado I,
supra, at 184 (“Our prior cases clearly establish that equitable
apportionment will only protect those rights to water
that are `reasonably required and applied.' . . . [W]asteful or
ineffcient uses will not be protected (quoting Wyoming v.
Colorado, 259 U. S. 419, 484 (1922))); Idaho ex rel. Evans v.
Oregon, 462 U. S. 1017, 1025 (1983) (Idaho II) (“States have
816 FLORIDA v. GEORGIA
Opinion of the Court
an affrmative duty under the doctrine of equitable apportionment
to take reasonable steps to conserve and even to
augment the natural resources within their borders for the
beneft of other States”); Nebraska v. Wyoming, 325 U. S.
589, 618 (1945); Kansas II, 320 U. S., at 394; Washington v.
Oregon, 297 U. S. 517, 522, 527–528 (1936); New Jersey v. New
York, 283 U. S. 336, 342–343 (1931); North Dakota v. Minnesota,
263 U. S. 365, 372 (1923) (reaffrming that an upstream
State may not “burden his lower neighbor with more than is
reasonable”); Kansas v. Colorado, 206 U. S. 46, 102 (1907)
(Kansas I ); Tyler v. Wilkinson, 24 F. Cas. 472, 474
(No. 14,312) (CC RI 1827) (Story, J.) (setting forth the principle
of “reasonable use”).
Second, our prior decisions emphasize that, when we are
confronted with competing claims to interstate water, the
Court's “effort always is to secure an equitable apportionment
without quibbling over formulas.” New Jersey v. New
York, 283 U. S., at 343 (Holmes, J.). Where “[b]oth States
have real and substantial interests in the River,” those interests
“must be reconciled as best they may be.” Id., at 342–
343. We have added that “[u]ncertainties about the future
. . . do not provide a basis for declining to fashion a decree.”
Idaho II, 462 U. S., at 1026; see also ibid. (“Reliance on
reasonable predictions of future conditions is necessary”);
Colorado v. New Mexico, 467 U. S. 310, 322 (1984) (Colorado
II) (requiring “absolute precision in forecasts . . . would be
unrealistic”); North Dakota v. Minnesota, supra, at 386 (emphasizing
the need to “draw inferences as to the probabilities”);
Kansas I, supra, at 97–98.
Third, in light of the sovereign status and “equal dignity”
of States, a complaining State must bear a burden that is
“much greater” than the burden ordinarily shouldered by a
private party seeking an injunction. Connecticut v. Massachusetts,
282 U. S. 660, 669 (1931); see Kansas II, supra, at
392 (“The reason for judicial caution in adjudicating the relative
rights of States in such cases is that, while we have
Cite as: 585 U. S. 803 (2018) 817
Opinion of the Court
jurisdiction of such disputes, they involve the interests of
quasi-sovereigns, present complicated and delicate questions,
and, due to the possibility of future change of conditions, necessitate
expert administration rather than judicial imposition
of a hard and fast rule” (footnote omitted)). In particular,
“ `[b]efore this court can be moved to exercise its
extraordinary power under the Constitution to control the
conduct of one State at the suit of another,' ” the complaining
State must demonstrate that it has suffered a “ `threatened
invasion of rights' ” that is “ `of serious magnitude.' ” Washington
v. Oregon, supra, at 522 (quoting New York v. New
Jersey, 256 U. S. 296, 309 (1921)). The State must make that
showing by “ `clear and convincing evidence.' ” Washington
v. Oregon, supra, at 522 (quoting New York v. New Jersey,
supra, at 309); see also Idaho II, supra, at 1027 (“A State
seeking equitable apportionment under our original jurisdiction
must prove by clear and convincing evidence some real
and substantial injury or damage”); Colorado I, supra, at
187–188, n. 13 (“[A] state seeking to prevent or enjoin [an
upstream] diversion by another State” must “bear the initial
burden of showing that a diversion by [the upstream State]
will cause substantial injury to [the downstream State's] interests”
(emphasis added)).
In addition, to the extent the Court has addressed the
“initial burden” a State bears in respect to redressability,
our prior decisions make clear that, as a general matter,
“[t]o constitute such a controversy, it must appear that the
complaining State has suffered a wrong through the action
of the other State, furnishing ground for judicial redress, or
is asserting a right against the other State which is susceptible
of judicial enforcement according to the accepted principles
of the common law or equity systems of jurisprudence.”
Massachusetts v. Missouri, 308 U. S. 1, 15 (1939);
see also Wyoming v. Oklahoma, 502 U. S. 437, 447, 452 (1992)
(same); Maryland v. Louisiana, 451 U. S. 725, 735–736
(1981). More specifcally, we have said that “it should be
818 FLORIDA v. GEORGIA
Opinion of the Court
clear that [the complaining] state has not merely some technical
right, but also a right with a corresponding beneft” as
a precondition to any equitable apportionment. Kansas I,
supra, at 109. An effort to shape a decree cannot be “a vain
thing.” Foster v. Mansfeld, C. & L. M. R. Co., 146 U. S.
88, 101 (1892). A State “will not be granted [relief] against
something merely feared as liable to occur at some indefnite
time in the future,” Connecticut v. Massachusetts, supra, at
674, or when there is “no other or better purpose [at stake]
than to vindicate a barren right,” Washington v. Oregon, 297
U. S., at 523. Cf. Idaho II, supra, at 1026 (assessing whether
“the formulation of a workable decree is impossible”).
Fourth, in an interstate water matter, where a complaining
State meets its “initial burden of showing `real or substantial
injury,' ” Colorado II, supra, at 317 (quoting Colorado
I, 459 U. S., at 188, n. 13), this Court, recalling that
equitable apportionment is “ `fexible,' ” not “formulaic,” will
seek to “arrive at a ` “just and equitable” apportionment' of
an interstate stream” by “consider[ing] `all relevant factors.'
” South Carolina v. North Carolina, 558 U. S. 256,
271 (2010) (quoting Colorado I, 459 U. S., at 183); see also id.,
at 190 (“Whether [relief] should be permitted will turn on an
examination of all factors relevant to a just apportionment”);
Kansas II, 320 U. S., at 393–394 (“[I]n determining whether
one State is using, or threatening to use, more than its equitable
share of the benefts of a stream, all the factors which
create equities in favor of one State or the other must be
weighed” (emphasis added)). These factors include (but are
not limited to):
“physical and climatic conditions, the consumptive use of
water in the several sections of the river, the character
and rate of return fows, the extent of established uses,
the availability of storage water, the practical effect of
wasteful uses on downstream areas, [and] the damage to
upstream areas as compared to the benefts to downCite
as: 585 U. S. 803 (2018) 819
Opinion of the Court
stream areas if a limitation is imposed on the former.”
Nebraska v. Wyoming, 325 U. S., at 618.
Because “all the factors which create equities in favor of
one State or the other must be weighed,” Kansas II, supra,
at 394 (emphasis added), extensive and “specifc factual fndings”
are essential for the Court to properly apply the doctrine
of equitable apportionment. Colorado I, supra, at
189–190 (emphasis added). And given the complexity of
many water-division cases, the need to secure equitable solutions,
the need to respect the sovereign status of the States,
and the importance of fnding fexible solutions to multifactor
problems, we typically appoint a Special Master and
beneft from detailed factual fndings.
Without the full range of factual fndings, we have said,
the Court may lack an adequate basis on which to make “the
delicate adjustment of interests” that the law requires. Nebraska
v. Wyoming, supra, at 618; Washington v. Oregon,
297 U. S., at 519, 523–524 (emphasizing that “the Master's
Report, which fnds the facts fully”); see also Colorado I,
supra, at 183, 189–190 (remanding “with instructions to the
Special Master to make further fndings of fact”); Colorado
II, 467 U. S., at 312–315 (explaining that because “the Master's
report [was] unclear,” the Court remanded to the Special
Master “for additional factual fndings on fve specifc
issues” even after “a lengthy trial at which both States presented
extensive evidence” in order “to assist this Court in
balancing the beneft and harm”); Texas v. New Mexico, 462
U. S. 554, 575–576, and n. 21 (1983) (“[W]e return this case
to the Special Master for determination of the unresolved
issues framed in his pretrial order”); 3 A. Kelley, Water and
Water Rights § 45.02(c), p. 45–14 (3d ed. 2018) (“If the factual
fndings in the report are insuffcient for the Court to decide
whether the master correctly applied the doctrine of equitable
apportionment, the Court may refer the case back to the
master for additional fndings”).
820 FLORIDA v. GEORGIA
Opinion of the Court
B
Applying the principles just described, we conclude that
the Special Master applied too strict a standard when he
determined that the Court would not be able to fashion an
appropriate equitable decree. See Report 3 (“Florida has
not proven by clear and convincing evidence that its injury
can be redressed by an order equitably apportioning the waters
of the Basin”); see also id., at 31 (“The evidence does
not provide suffcient certainty that an effective remedy is
available without the presence of the Corps as a party in
this case”).
The Special Master referred to the relevant showing that
Florida must make in this respect as a “threshold” showing.
Id., at 24. We agree that the matter is “threshold” in one
particular sense—namely, the sense that the Master has not
yet determined several key remedy-related matters, including
the approximate amount of water that must fow into the
Apalachicola River in order for Florida to receive a signifcant
beneft from a cap on Georgia's use of Flint River waters.
See infra, at 833. The Master also wrote that Florida
had failed to show “with suffcient certainty that the
Corps must (or will choose to) operate its projects so as to
permit all additional fows in the Flint River” or “the entire
marginal increase in streamfow” to reach Florida “without
any substantial delay.” Report 48 (emphasis added); see
also id., at 24, 70 (similar). He added that there “is no guarantee”
that the Corps will exercise its relevant discretion.
Id., at 69 (emphasis added). And he said that Florida must
show the existence of a workable remedy by “clear and convincing
evidence.” Id., at 3; see also, e. g., id., at 28–29, 47,
51, 69–70.
We believe the Master's standard, as indicated by these
statements, is too strict. In our view, unless and until the
Special Master makes the fndings of fact necessary to determine
the nature and scope of likely harm caused by the absence
of water and the amount of additional water necessary
Cite as: 585 U. S. 803 (2018) 821
Opinion of the Court
to ameliorate that harm signifcantly, the complaining State
should not have to prove with specifcity the details of an
eventually workable decree by “clear and convincing” evidence.
Rather, the complaining State should have to show
that, applying the principles of “fexibility” and “approximation”
we discussed above, it is likely to prove possible to
fashion such a decree. See supra, at 818–819.
To require more defnite proof at the outset may well (at
least on some occasions) make little sense. Suppose, for example,
downstream State A claims that upstream State B
wastes at least 10,000 cubic feet per second (cfs) of water.
And suppose further that no decree could enforce a 10,000
cfs consumption cap but that it may well prove possible to
enforce a lesser requirement. If so, we would have to know
at least approximately how much water will signifcantly
ameliorate State A's water problem before we could know
whether it is possible to shape a workable decree. And the
workability of decrees themselves, approximate as they may
be, may depend upon more precise fndings in respect to the
nature and scope of the range of likely harms and likely benefts
that a Special Master fnds are actually likely to exist.
To require “clear and convincing evidence” about the workability
of a decree before the Court or a Special Master has
a view about likely harms and likely amelioration is, at least
in this case, to put the cart before the horse. And that, we
fear, is what the Master's statements, with their apparent
references to a “clear and convincing” evidence standard in
respect to “redressability” (where that refers to the availability
of an eventual decree) have done here. Cf. post, at
860–863.
That is also why our cases, while referring to the use of a
“clear and convincing” evidentiary standard in respect to an
initial showing of “invasion of rights” and “substantial injury,”
have never referred to that standard in respect to a
showing of “remedy” or “redressability.” See Nebraska v.
Wyoming, 515 U. S. 1, 8 (1995) (repeating that as a threshold
822 FLORIDA v. GEORGIA
Opinion of the Court
matter, a “ `threatened invasion of rights must be of serious
magnitude and it must be established by clear and convincing
evidence' ” without addressing the required initial burden
in respect to remedy (quoting New York v. New Jersey,
256 U. S., at 309)); Colorado II, supra, at 317 (describing the
“initial burden” a State bears to show “ `real or substantial
injury' ” (quoting Colorado I, 459 U. S., at 187–188, n. 13));
Idaho II, 462 U. S., at 1027; Colorado I, supra, at 187–188,
and n. 13 (“[A] State seeking to prevent or enjoin [an upstream]
diversion by another State” must “bear the initial
burden of showing that a diversion by [the upstream State]
will cause substantial injury to [the downstream State's] interests”
(emphasis added)); Washington v. Oregon, 297 U. S.,
at 522; Connecticut v. Massachusetts, 282 U. S., at 672; New
Jersey v. New York, 283 U. S., at 344–345; Kansas II, 320
U. S., at 393–394. The dissent does not dispute this. See
post, at 856.
As discussed, supra, at 817–818, our prior decisions have
said that the “right” a complaining State asserts must be
more than “merely some technical right” and must be “a
right with a corresponding beneft,” Kansas I, 206 U. S., at
109 (emphasis added)—an effort to shape an equitable apportionment
decree cannot be “a vain thing,” Foster, 146 U. S.,
at 101. See also Idaho II, supra, at 1026 (assessing whether
“the formulation of a workable decree is impossible”); Washington
v. Oregon, supra, at 523. But these statements apply
to the general availability of judicial relief—not to the details
of a fnal decree or to the workability of a decree that
will depend on those details. Cf. Idaho ex rel. Evans v. Oregon,
444 U. S. 380, 392 (1980) (Idaho I ) (explaining that the
question whether a State's proposed remedy will have an
“appreciable effect” is a question that “goes to the merits”
of the equitable apportionment inquiry). And, of course, to
insist upon the use of such a strict standard, in respect to an
eventual decree, runs directly contrary to the statements in,
and holdings of, cases to which we have referred when disCite
as: 585 U. S. 803 (2018) 823
Opinion of the Court
cussing the need for “approximation” and “fexibility.” See
supra, at 818–819.
IV
We next address Florida's exceptions to the Master's evidentiary
determinations. In doing so, we recognize that the
record in this case is long. It addresses a number of highly
technical matters on a range of subjects—from biology to
hydrology to the workings of the Corps' newly revised Master
Manual governing the organization's complex operations
in the Basin. Insofar as the Special Master made fndings
of fact, those fndings “deserve respect and a tacit presumption
of correctness.” Colorado II, 467 U. S., at 317. But at
the end of the day, “the ultimate responsibility for deciding
what are correct fndings of fact remains with us.” Ibid.
We have therefore read those portions of the record to which
the parties, amici, or the Master refer, along with several
other portions that we have found potentially relevant. Our
“independent examination of the record,” Kansas v. Missouri,
322 U. S. 213, 232 (1944), leads us to conclude that, at
this stage, Florida has met its “initial burden” in respect to
remedy. But, we also believe that a remand is necessary
to conduct the equitable-balancing inquiry. Cf. Colorado I,
supra, at 183–190.
We reserve judgment as to the ultimate disposition of this
case, addressing here only the narrow “threshold” question
the Master addressed below—namely, whether Florida has
shown that its “injur[ies can] effectively be redressed by limiting
Georgia's consumptive use of water from the Basin
without a decree binding the Corps.” Report 30–31. This
dispositive threshold question leads us, in turn, to focus upon
fve subsidiary questions:
First, has Florida suffered harm as a result of decreased
water fow into the Apalachicola River? (The Special Master
assumed “yes.”)
Second, has Florida shown that Georgia, contrary to equitable
principles, has taken too much water from the Flint
824 FLORIDA v. GEORGIA
Opinion of the Court
River (the eastern branch of the Y-shaped river system)?
(Again, the Special Master assumed “yes.”)
Third, if so, has Georgia's inequitable use of Basin waters
injured Florida? (The Special Master assumed “yes.”)
Fourth, if so, would an equity-based cap on Georgia's use
of the Flint River lead to a signifcant increase in streamfow
from the Flint River into Florida's Apalachicola River (the
stem of the Y)? (This is the basic question before us.)
Fifth, if so, would the amount of extra water that reaches
the Apalachicola River signifcantly redress the economic
and ecological harm that Florida has suffered? (This question
is mostly for remand.)
As our parentheticals suggest, the Special Master assumed
that the answer to the frst three questions was “yes.” The
fourth question is the question before us now. And the ffth
question is partly for us now and partly for the Master to
answer on remand.
A
The Report indicates that the Special Master assumed the
answer to the frst question is “yes.” The Report says that
the Special Master reached his conclusion on the “single, discrete
issue that resolves this case” by “assuming that Florida
has sustained injury.” Id., at 30 (emphasis added); see
also id., at 2 (repeating Georgia's argument that “without an
order binding the Corps, Florida will not be assured any relief—
assuming it has suffered any injury at all—by a decree
entered in this proceeding because the Corps has the
ability to impound water in various reservoirs that it maintains
in the Basin” (emphasis added)); id., at 65 (“[e]ven if
there were evidence of harm from other than low-fow conditions
. . . ”).
At the same time, the Report states that “Florida points
to real harm.” Id., at 31. And the Master specifed that
there is “little question that Florida has suffered harm from
decreased fows in the [Apalachicola] River.” Ibid. (emCite
as: 585 U. S. 803 (2018) 825
Opinion of the Court
phasis added). That harm—caused (at least in part) by increased
salinity—includes “an unprecedented collapse of
[Florida's] oyster fsheries in 2012.” Ibid.; see id., at 32
(stating that “the evidence presented tends to show that increased
salinity . . . led to the collapse” of Apalachicola Bay's
oysters and “greatly harmed the oystermen of the Apalachicola
Region, threatening their longterm sustainability”).
Cf. New Jersey v. New York, 283 U. S., at 343, 345 (fnding
redressable harm to oysters caused by diminished water fow
and increased salinity). The harms of reduced streamfow
may extend to other species in the Apalachicola Region, including
in the river and its food plain, which, as the Master
noted, “is home to the highest species density of amphibians
and reptiles in all of North America, and supports hundreds
of endangered or threatened animal and plant species,” including
three “endangered” or “threatened” mussel species,
the “[t]hreatened Gulf sturgeon,” and the largest stand of
tupelo trees—of Tupelo Honey fame—in the world. Report
7–8; see also Joint Exh. 168, at 193, 195–196.
B
The Master also appears to have assumed the answer to
the second question is “yes.” The Report reached its key
conclusion that Florida's (assumed) injuries cannot “effectively
be redressed” by “assuming that Florida has sustained
injury as a result of unreasonable upstream water
use by Georgia.” Report 30 (emphasis added). But, at the
same time, the Master acknowledged that “Florida points to
real harm and, at the very least, likely misuse of resources
by Georgia.” Id., at 31 (emphasis added). And the Report
“provide[s] the Court a brief descriptive background regarding
. . . the unreasonableness of Georgia's consumptive water
use.” Ibid.; see, e. g., id., at 32 (“Georgia's upstream agricultural
water use has been—and continues to be—largely unrestrained”);
id., at 33 (“Despite early warnings of oncoming
826 FLORIDA v. GEORGIA
Opinion of the Court
drought, Georgi[a] . . . chose not to declare a drought in
2011—apparently hoping for the best, and clearly not wishing
to incur the cost of preventative action”); id., at 34
(“Georgia's position—practically, politically, and legally—can
be summarized as follows: Georgia's agricultural water use
should be subject to no limitations, regardless of the longterm
consequences for the Basin”).
C
In respect to the third question, the Master again assumed
the answer “yes.” In particular, the Report “assume[s]”
that “Florida has sustained injury as a result of unreasonable
upstream water use by Georgia.” Id., at 30 (emphasis
added). And as relevant to each of the frst three questions,
the Master added that “[m]uch more could be said and would
need to be said about” Florida's injuries, the reasonableness
of Georgia's water consumption, and “other issues, such as
causation,” if the case proceeds. Id., at 34. As we have
explained, our prior equitable apportionment decisions make
clear that “all factors which create equities in favor of one
State or the other must be weighed.” Kansas II, 320 U. S.,
at 393–394 (emphasis added). Thus, a remand is necessary
to consider each of the relevant factors, including those upon
which the dissent focuses. See infra, at 835–836; Nebraska
v. Wyoming, 325 U. S., at 618; cf. Colorado II, 467 U. S., at
323–324.
D
We now turn to the fourth question, the basic question
before us. Would an equity-based cap on Georgia's use of
the Flint River lead to a signifcant increase in streamfow
from the Flint River into Florida's Apalachicola River (the
stem of the Y)? The answer depends upon (1) the amount
of extra water that would fow into Lake Seminole as a result
of a cap on Georgia's Flint River water consumption;
and (2) the amount of water that could actually fow through
Cite as: 585 U. S. 803 (2018) 827
Opinion of the Court
the Corps-controlled Woodruff Dam at Lake Seminole's
southern end and into Florida's Apalachicola River.
1
The record shows that Florida's proposed cap on Georgia's
water consumption could result in the release of considerable
extra water into Lake Seminole. Florida's expert, Dr.
David Sunding, testifed that the cap would limit the average
amount of water that Georgia could use annually and also
reduce the amount of water that Georgia could use during
drought years, which could “materially reduce [Georgia's]
depletions of river fows . . . by 1,500 to over 2,000 cubic feet
per second (cfs) in peak summer months of drought years.”
Updated Pre-Filed Direct Testimony (PFDT) of Sunding ¶8;
see also id., ¶¶88–90. Dr. Sunding added that it would cost
Georgia roughly $35 million annually (less than 0.2% of Georgia's
annual budget) to reduce streamfow depletions by 2,000
cfs. Id., ¶113, Table 4. Georgia's expert, Dr. Robert Stavins,
disputed these conclusions. See Direct Testimony of
Stavins ¶¶4, 90, 136; see also Brief for Georgia 18. The
Master did not make specifc fndings of fact regarding this
aspect of Florida's proposed remedy. Rather than expressly
making any fndings, the Master apparently “accept[ed] Florida's
estimates of the increased streamfow that would result
from a consumption cap.” Report 67, n. 43. At this stage,
we shall do the same.
And as we shall later discuss, the record suggests that an
increase in streamfow of 1,500 to 2,000 cfs is reasonably
likely to beneft Florida signifcantly. See infra, at 834–835
(citing record evidence of benefts); see also Updated PFDT
of J. David Allan ¶¶3d, 26, 67 (Allan) (discussing ecological
benefts of increasing streamfow by 300 to 500 cfs); 10 Tr.
2629:7–15 (Kondolf) (detailing benefts of increasing streamfow
into the Apalachicola River from 5,000 to 7,000 cfs); 3
id., at 591:6–593:4, 596:17–598:1 (Allan).
828 FLORIDA v. GEORGIA
Opinion of the Court
2
The key question, however, is whether the 1,500 to 2,000
cfs of extra water that will fow into Lake Seminole from the
Flint River as a result of a cap on Georgia's water consumption
will fow beyond Lake Seminole, through the Woodruff
Dam, and into the Apalachicola River at the relevant times.
That is where the Army Corps of Engineers enters the picture.
And it is where Florida disagrees with the Special
Master and with Georgia. The Special Master and Georgia
believe that—at any relevant time—the Corps might “offset”
any extra Flint River water that fows into Lake Seminole
by simultaneously reducing the amount of water that fows
into that lake from the Chattahoochee River. See Report
48–53. Thus, if the 1,500 to 2,000 cfs of extra water that
would reach Lake Seminole from the Flint as a result of
Florida's proposed consumption cap, the question is whether
and to what extent the Corps will “offset” that extra streamfow
by releasing 1,500 to 2,000 cfs less water into Lake Seminole
from its upstream Chattahoochee reservoirs.
Of course, the Corps might, under certain circumstances,
be authorized to “offset” extra streamfow from the Flint
River. As the Special Master wrote, “[t]here is no guarantee
that the Corps will exercise its discretion to release or
hold back water at a particular time.” Id., at 69. But as
the United States has explained, increased streamfow into
Lake Seminole (that is, increased Basin Infow) “would generally
beneft the ACF system by delaying the onset of
drought operations, by allowing the Corps to meet the 5000
cfs minimum fow longer during extended drought, and by
quickening the resumption of normal operations af ter
drought.” Brief for United States as Amicus Curiae 28
(Aug. 7, 2017). And our reading of the record convinces us
it is highly unlikely that the Corps will always reduce the
fow in this way; it leads us to believe that, acting in accordance
with its own revised Master Manual, the Corps is
likely to permit, and in some cases may be required to ensure
Cite as: 585 U. S. 803 (2018) 829
Opinion of the Court
that, material amounts of additional Flint water to fow
through the Woodruff Dam and into the Apalachicola River.
At the very least, we believe that more proceedings are necessary
to reach a defnitive determination.
As an initial matter, the Master Manual makes clear that
the amount of water the Corps will release turns in part
on the amount of water stored in the Corps' Chattahoochee
reservoirs. See U. S. Army Corps of Engineers, Master
Manual, Apalachicola-Chattahoochee-Flint River Basin, Florida
and Georgia, App. A, pp. 7–4 to 7–5, 7–7. More specifcally,
the amount of water storage in those reservoirs
dictates whether the Corps is conducting one of two possible
types of “operations”—namely, “drought operations” or
“nondrought operations.” These are technical terms. See
id., at 7–14 to 7–16. The term “drought operations” need not
correspond to dry periods, nor need the term “nondrought
operations” refer to wet periods. Rather their applicability
depends in part upon the amount of water that is stored behind
the Corps' Chattahoochee dams. As the United States
explained, “[t]he term `drought operations' refers to more
conservative operations that [the Corps conducts, which]
are intended to enable the Corps to preserve water and operate
its reservoir projects more effectively as drought conditions
arise.” Brief for United States as Amicus Curiae 9
(Aug. 7, 2017). We therefore must clearly distinguish what
the record tells us about the amount of extra water that
could fow into Florida as a result of a consumption cap during
each of these two distinct types of Corps operations.
a
Nondrought Operations
When the Corps is conducting “nondrought operations,”
the Master Manual requires the Corps to release into Florida
all or some of any extra water that fows from the Flint
River into Lake Seminole, where it will then fow through
the Woodruff Dam. See App. to Brief for United States as
830 FLORIDA v. GEORGIA
Opinion of the Court
Amicus Curiae 2a (Aug. 7, 2017) (detailing Corps operational
protocol). As the United States has explained, when the
total streamfow into Lake Seminole is between 5,000 and
10,000 cfs during “nondrought operations,” the following
facts are true:
“[A]ny additional basin infow . . . would generally be
passed straight through to Florida. If, for example, the
conservation measures advocated by Florida as part of
a consumption cap actually resulted in an increased fow
in the Flint River of 2,000 cfs, see Pre-Filed Direct Testimony
of David Sunding, Ph. D. at 44, Table 4, then
fows into Florida would also increase by roughly that
amount.” United States Post-Trial Brief 12–13 (Dec.
15, 2016).
See also Brief for United States as Amicus Curiae 18
(Aug. 7, 2017) (reaffrming that under these circumstances
“fows in the Apalachicola would increase by the
amount of increased Flint River fows” including during
summer months).
As far as we can tell, under the Corps' current operational
protocol, the Corps may remain in “nondrought operations”
even during the driest summer months of the driest years.
For example, in 2007 the Corps conducted “nondrought operations”
not only during late autumn, winter, and spring
months, but also during the hottest summer and early autumn
months “when streamfow is at its lowest.” See Direct
Testimony of Phillip Bedient ¶¶48–53 (Bedient) (stating that
“[i]f 2007's Basin Infow were repeated today and Drought
Operations were not triggered,” the Corps would have had
92 days of “nondrought operations,” including 19 days “during
summer and fall months, when streamfow was at its lowest”
on which 100% of extra water resulting from a consumption
cap would reach Florida). We note that these 19 days
fell during a period of severe drought in which no extra
water (let alone 2,000 cfs of extra water) was fowing into
Lake Seminole. And, unsurprisingly, the same trend apCite
as: 585 U. S. 803 (2018) 831
Opinion of the Court
pears to be true in dry summer months of other years: All
or some of the extra water that would result from a consumption
cap would also pass through to Florida. See, e. g.,
Ga. Exh. 949 (reporting streamfow data indicating several
days in 2009 on which extra Flint River water would have
passed through to Florida); Joint Exh. 128 (providing link to
U. S. Geological Survey data indicating a similar trend based
on streamfow into the Apalachicola River, including in 2016
and 2017).
b
Drought Operations
The Corps' “drought operations” are different. Again,
whether the Corps must initiate drought operations is not a
matter of discretion; it depends, as we have said, upon the
total amount of water the Corps has stored behind the dams
it controls along the Chattahoochee River. The Master
Manual requires that, when the total amount of water stored
in pools behind the Corps' Chattahoochee dams drops below
a certain level, the Corps must reduce the amount of water
it releases from the Woodruff Dam to 5,000 cfs, or, in instances
of extreme low water levels in the storage pools, to
4,500 cfs. Master Manual App. A, at 7–14 to 7–16. Accordingly,
if additional water were to flow into Lake Seminole
from the Flint River while the Corps is in drought operations,
the Corps, pursuant to its Master Manual, must reduce
the flow of its controlled upstream Chattahoochee water in
order to maintain a defined water level in the pools behind
its Chattahoochee dams, and no more than 4,500 cfs or 5,000
cfs can flow beyond the Woodruff Dam regardless. Brief for
United States as Amicus Curiae 7.
But even then, as we just said, the Corps must make certain
that at least 4,500 cfs and more often 5,000 cfs fows
though the Woodruff Dam. And, if more water fows from
the Flint into Lake Seminole, and if the Corps uses that
water to keep the water level high in its Chattahoochee reservoirs,
then there will be fewer days in which the Corps is
conducting either “drought operations” or “extreme drought
832 FLORIDA v. GEORGIA
Opinion of the Court
operations.” Instead, there will be more “nondrought operations”
days where the Corps must pass most or all additional
streamfow that exceeds 5,000 cfs through the Woodruff
(because there will be more days, given the added Flint
water, when its upstream Chattahoochee reservoirs are suffciently
high). The United States adds that “a cap on Georgia's
consumption” could, among other things, generate increased
streamfow that
“would provide a cushion during low-fow periods, so
that it would be possible to maintain a fow rate of
greater than 5,000 cfs for a longer period of time without
any alteration of the Corps' operations.” United States
Post-Trial Brief 18–19 (Dec. 15, 2016) (emphasis
added).
See also Brief for United States as Amicus Curiae 18
(Aug. 7, 2017) (same).
We repeat this point with an example for purposes of clarity.
Assume the following: (1) that it is August 13 and the
Corps is conducting “drought operations”; (2) that as a result
of a cap on Georgia's consumption, 2,000 cfs more water fows
down the Flint and into Lake Seminole; and (3) that, consistent
with the Master Manual, 5,000 cfs will fow from Lake
Seminole, through the Woodruff Dam, and into Florida's Apalachicola
River. On these three assumptions in all likelihood,
as the dissent points out, no extra water will fow into Florida.
But (and this “but” is key), the extra 2,000 cfs of water
that fows into Lake Seminole on August 13 as a result of a
cap on Georgia's from the Flint River water consumption
will allow the Corps to store more water behind its upstream
Chattahoochee dams (while still complying with the Master
Manual's minimum release requirements). And that fact
means that the Corps is likely to remain in “drought operations”
for fewer days because whether the Corps remains in
“drought operations” depends upon the water level behind
the Chattahoochee dams. And the fewer days the Corps
conducts “drought operations,” the more days the Corps,
Cite as: 585 U. S. 803 (2018) 833
Opinion of the Court
consistent with its Master Manual, will allow all (or some) of
the 2,000 cfs extra water that would result from a consumption
cap to fow through the Woodruff Dam and into Florida's
Apalachicola River. Again, record evidence makes clear
that this is not a fanciful possibility. For example, Florida
points to record evidence that suggests a consumption cap
could have prevented the Corps from entering drought operations
in 2011–2012 without departing from the terms of its
Master Manual. See, e. g., Florida Brief in Support of Exceptions
48–49, and n. 12 (citing record evidence, including
Ga. Exh. 924 and Fla. Exh. 811, that the Special Master did
not address, suggesting that Florida's proposed consumption
cap could have helped the Corps to “avoi[d] drought operations
entirely” in 2011–2012 without departing from the
Master Manual's requirements).
The upshot is that, even when the Corps conducts its operations
in accordance with the Master Manual, Florida's proposed
consumption cap would likely mean more water in the
Apalachicola—as much as 2,000 cfs more water when the
Corps is conducting normal or “nondrought operations,”
which could take place in dry periods, including the driest
days of summer, and 500 cfs more on days when the Corps
is conducting “drought operations.” And a cap would likely
allow the Corps to conduct “nondrought operations” (i. e.,
reservoirs-suffciently-full operations) more often as well.
3
We cannot agree with the dissent's efforts to deny these
conclusions. To begin with, the dissent says that our conclusion
“depends on the premise that, during droughts, the natural
streamfow into Florida is between `5,000 and 10,000
cubic feet per second.' ” Post, at 869. If the dissent means
by “droughts” simply dry days, or summer days, then it is
obviously wrong, for pursuant to the Corps' Master Manual,
the Corps must allow all or some of the 2,000 cfs extra water
that would fow into Lake Seminole to continue through the
834 FLORIDA v. GEORGIA
Opinion of the Court
Woodruff Dam into Florida during dry summer days when
the Corps is not conducting “drought operations.” This was
true, as the dissent concedes, even during 19 summer days
in 2007, which was among the driest years in the Basin's
history. Or, does the dissent mean by “droughts” days on
which the Corps is conducting “drought operations”? If so,
then we agree that on such days, the Corps will normally
allow no more than 5,000 cfs to fow into Florida. But, for
the reasons just stated in the last few paragraphs, Florida's
proposed consumption cap—which could result in as much as
2,000 extra cubic feet of water per second fowing from the
Flint into Lake Seminole—will mean (consistent with the
testimony of the very Georgia expert that the dissent so frequently
quotes) that there will be signifcantly fewer such
days.
Is there a mistake then in the “concrete example” the dissent
offers to support its point? See post, at 871–872. Invoking
a hypothetical posed by Georgia's expert, the dissent
says:
“[I]f the natural fows in the Apalachicola River were
2,600 cubic feet per second, then the Corps would release
2,400 cubic feet per second from its [Chattahoochee]
reservoirs. . . . And if a cap on Georgia['s Flint
River consumption] increased the River's natural fow to
4,100 cubic feet per second, the Corps would release 900
cubic feet per second. . . . In either case, the total fow
on the Apalachicola River would remain the same: 5,000
cubic feet per second. Thus, so long as the natural fows
remain signifcantly less than 5,000 cubic feet per second,
a cap on Georgia would only decrease the amount
of water that the Corps releases from storage; it
would not increase the overall amount of water fowing
into the Apalachicola River.” Ibid. (citing Bedient
¶¶45–47).
If, however, a consumption cap causes 1,500 cfs extra
water (from the Flint) to fow into Lake Seminole (as we
Cite as: 585 U. S. 803 (2018) 835
Opinion of the Court
assume Florida's proposed cap would), under the dissent's
example, the Corps will reduce (or “offset”) the amount of
water it releases from its upstream Chattahoochee dams
from 2,400 cfs to 900 cfs. That is because 2,400 cfs minus 900
cfs is 1,500 cfs. What happens to that 1,500 cfs extra water?
When the Corps is in drought operations, the answer according
to the Master Manual is that the Corps must store
that water in its upstream Chattahoochee reservoirs. And
with that 1,500 cfs extra water each day, the water levels in
those reservoirs will rise (or, at a minimum, deplete less rapidly)
and allow the Corps to resume “nondrought operations”
more quickly. The United States repeats precisely this
point—namely, when more water fows into Lake Seminole,
it benefts Florida by “quickening the [Corps'] resumption
of normal [i. e., `nondrought'] operations.” Brief for United
States as Amicus Curiae 28 (Aug. 7, 2017). (That extra
water also means that there will be more days when 5,000
cfs, rather than 4,500 cfs, fows from Lake Seminole into the
Apalachicola River.) And it means, as no one denies, that
on days when the Corps conducts “nondrought operations”
(which, as Georgia's own expert report shows, occur even
during dry summer months), more water will reach Florida
when Florida needs it.
What about the dissent's point that Georgia's expert, Dr.
Bedient, said that the extra 2,000 cfs would mean more water
for Florida “only 19 days `during the summer and fall months
when streamfow was at its lowest' ”? Post, at 871. Dr. Bedient's
exact words, as the dissent points out, were that in
“ `dry years (e. g., 2007 and 2011), . . . even signifcant changes
in Georgia's consumptive use would lead to virtually no
change in state-line fows during the low-fow months (e. g.,
June, July, August, September).' ” Bedient ¶78.
At this point, in our view, the dissent has pointed to record
evidence with which other record evidence conficts. It
seems from record evidence, from the statements of the
United States, from geological data, and from laws of me836
FLORIDA v. GEORGIA
Opinion of the Court
chanics, that 2,000 cfs extra water fowing into Lake Seminole
when, in the dissent's words, “drought operations were
not in effect” would have to mean more water in Florida.
Post, at 871. And the dissent does not dispute that some of
these days are in the summer. Ibid. Our own check of the
record reinforces the point. In particular, data from the
U. S. Geological Survey's website, which the parties entered
into the record at Joint Exh. 128, indicates that between May
2016 and August 2016, streamfow into the Apalachicola
River was above 6,000 cfs each day with the exception of two
days: August 30, 2016, and August 31, 2016. Nothing in the
record suggests that the Corps was in drought operations
during these days, and so it appears that under these conditions,
any additional streamfow resulting from a cap on
Georgia's Flint River consumption would pass through into
Florida. However, without explicit fndings, it is neither
possible nor prudent for us in the frst instance to read
through this voluminous record and discover who is right on
this matter of how much extra water there will be, when,
and how much Florida would beneft from the extra water
that there might be. That is why we are sending this case
back for more fndings.
Finally, while the dissent suggests that “[i]t is incredibly
odd to conclude that a Special Master's merits determination
is `premature' after a full trial,” post, at 858, this Court has
repeatedly concluded that remand is “appropriate” to resolve
certain issues in an equitable apportionment case even
where, as here, there has already been a “lengthy trial at
which both States presented extensive evidence,” Colorado
II, 467 U. S., at 313. See also Wyoming v. Colorado, 259
U. S., at 455–456 (explaining that “the evidence was taken”
over the course of two years and presented to the Court two
years later and that “[t]he case has been argued at bar three
times” including because of the “importance of some of the
questions involved”). Moreover, we note that adequate factCite
as: 585 U. S. 803 (2018) 837
Opinion of the Court
fnding is especially important where, as here, no interstate
compact guides our inquiry or sets forth a congressionally
ratifed water allocation formula. When such a compact exists,
as it often does, our effort is relatively simple and focuses
upon “declar[ing] rights under the Compact and enforc-
[ing] its terms.” Kansas v. Nebraska, 574 U. S., at 455
(citing Texas v. New Mexico, 462 U. S., at 567); id., at 567–
568 (“If there is a compact, it is a law of the United States,
. . . and our frst and last order of business is interpreting
the compact”). Here, no compact guides our inquiry and it
would appear to be important that we approach this complex
controversy with the care and thoroughness that our precedent
requires.
E
Our fnal question is this: Would the amount of extra water
that reaches the Apalachicola signifcantly redress the economic
and ecological harm that Florida has suffered? There
is evidence indicating that the answer to the question is in
the affrmative. See, e. g., Allan ¶¶3d, 26, 67 (“Even relatively
modest increases in fows—on the order of 300 to 500
cfs during key periods of the year—could reduce harm to the
[Apalachicola Region's] ecosystem and halt the cycle that is
leading to irreversible harm” while “[g]reater increases
could make even more dramatic improvements”); Updated
PFDT of Patricia Glibert ¶¶5, 28–32, 58–60, and Table 1,
Figs. 10, 19b; supra, at 827 (citing record evidence of benefts);
see also 10 Tr. 2629:7–15 (Kondolf) (detailing benefts of
increasing streamfow from 5,000 to 7,000 cfs); 3 id., at 591:6–
593:4, 596:17–598:1 (Allan). But the Master's Report does
not explicitly answer this question. We consequently must
remand the case to fnd the answer to this question (and
others).
* * *
In sum, in respect to the evidentiary questions at issue, the
Master assumed that: (1) Florida has likely suffered harm as
838 FLORIDA v. GEORGIA
Opinion of the Court
a result of decreased water fow into the Apalachicola River;
(2) Florida has made some showing that Georgia, contrary
to equitable principles, has taken too much water from the
Flint River; and (3) Georgia's inequitable use of the water
may have injured Florida, but more fndings are needed.
And in light of the Master's assumptions, we conclude that:
(4) An equity-based cap on Georgia's use of the Flint River
would likely lead to a material increase in streamfow from
the Flint River into Florida's Apalachicola River; and (5) the
amount of extra water that reaches the Apalachicola may
signifcantly redress the economic and ecological harm that
Florida has suffered. Further findings, however, are
needed on all of these evidentiary issues on remand.
We add the following: The United States has made clear
that the Corps will work to accommodate any determinations
or obligations the Court sets forth if a fnal decree equitably
apportioning the Basin's waters proves justifed in this case.
It states in its brief here that if a decree results “in more
water fowing to Florida . . . under existing Corps protocols,
then the Corps would likely not need to change its operations.”
Brief for United States as Amicus Curiae 28 (Aug.
7, 2017). It has added that, in any event, a decree “would
necessarily form part of the constellation of laws to be considered
by the Corps when deciding how best to operate the
federal projects.” Id., at 32. And in issuing its revised
Master Manual, the Corps stated that it would “review any
fnal decision from the U. S. Supreme Court and consider any
operational adjustments that are appropriate in light of that
decision, including modifcations to the then-existing [Master
Manual], if applicable.” Record of Decision 18. The United
States has “continually asserted its preparedness to implement,
in accordance with federal law, any [agreed-upon] comprehensive
water allocation formula.” Id., at 4; see also
Joint Exh. 124, at 6–35. And, of course, the Administrative
Procedure Act requires the Corps to make decisions that are
Cite as: 585 U. S. 803 (2018) 839
Opinion of the Court
reasonable, i. e., not “arbitrary, capricious, an abuse of discretion,”
or “in excess of [the Corps'] statutory jurisdiction.” 5
U. S. C. § 706(2).
We recognize that the Corps must take account of a variety
of circumstances and statutory obligations when it allocates
water. New circumstances may require the Corps to
revise its Master Manual or devote more water from the
Chattahoochee River to other uses. But given the considerations
we have set forth, we cannot agree with the Special
Master that the Corps' “inheren[t] discretio[n]” renders effective
relief impermissibly “uncertain” or that meaningful
relief is otherwise precluded. Report 56, n. 38. We cannot
now say that Florida has “merely some technical right” without
“a corresponding beneft,” Kansas I, 206 U. S., at 109, or
that an effort to shape a decree will prove “a vain thing.”
Foster, 146 U. S., at 101. Ordinarily “[u]ncertainties about
the future” do not “provide a basis for declining to fashion a
decree.” See Idaho II, 462 U. S., at 1026. And in this case,
the record leads us to believe that, if necessary and with the
help of the United States, the Special Master, and the parties,
we should be able to fashion one.
V
We keep in mind what our prior decisions make clear:
“ `The diffculties of drafting and enforcing a decree' ” do not
necessarily provide a convincing “ `justifcation for us to refuse
to perform the important function entrusted to us by
the Constitution.' ” Idaho I, 444 U. S., at 390, n. 7 (quoting
Nebraska v. Wyoming, 325 U. S., at 616); see also Idaho II,
supra, at 1027 (“Although the computation is complicated
and somewhat technical, that fact does not prevent the issuance
of an equitable decree”). For this reason and the others
we have discussed, we agree with Florida that it has
made a legally suffcient showing as to the possibility of fashioning
an effective remedial decree.
840 FLORIDA v. GEORGIA
Opinion of the Court
We repeat, however, that Florida will be entitled to a decree
only if it is shown that “the benefts of the [apportionment]
substantially outweigh the harm that might result.”
Colorado I, 459 U. S., at 187. In assessing whether that
showing has been made, the Master may fnd it necessary to
address in the frst instance many of the evidentiary and
legal questions the answers to which we have here assumed
or found plausible enough to allow us to resolve the threshold
remedial question. In order to determine whether Florida
can eventually prove its right to cap Georgia's use of Flint
River waters, it may fnd it necessary for the Special Master
to make more specifc factual fndings and defnitive recommendations
regarding such questions as: To what extent does
Georgia take too much water from the Flint River? To
what extent has Florida sustained injuries as a result? To
what extent would a cap on Georgia's water consumption
increase the amount of water that fows from the Flint River
into Lake Seminole? To what extent (under the Corps' revised
Master Manual or under reasonable modifcations that
could be made to that Manual) would additional water resulting
from a cap on Georgia's water consumption result in additional
streamfow in the Apalachicola River? To what extent
would that additional streamfow into the Apalachicola
River ameliorate Florida's injuries? The Special Master
may make other factual fndings he believes necessary and
hold hearings (or take additional evidence) as he believes
necessary. Cf. Colorado I, 459 U. S., at 190, n. 14.
Consistent with the principles that guide our inquiry in
this context, answers need not be “mathematically precise or
based on defnite present and future conditions.” Idaho II,
462 U. S., at 1026. Approximation and reasonable estimates
may prove “necessary to protect the equitable rights of a
State.” Ibid. And the answers may change over time.
Cf. New Jersey v. New York, 347 U. S. 995, 996–1005 (1954);
New Jersey v. New York, 283 U. S., at 344–346. Flexibility
and approximation are often the keys to success in our efCite
as: 585 U. S. 803 (2018) 841
Opinion of the Court
forts to resolve water disputes between sovereign States
that neither Congress nor “the legislature of either State”
has been able to resolve. Virginia v. West Virginia, 220
U. S., at 27.
We consequently do not dismiss this case. Rather, we remand
the case to the Special Master for further proceedings
consistent with this opinion.
It is so ordered.
842 FLORIDA v. GEORGIA
Appendix to opinion of the Court
APPENDIX
Cite as: 585 U. S. 803 (2018) 843
Thomas, J., dissenting
Justice Thomas, with whom Justice Alito, Justice
Kagan, and Justice Gorsuch join, dissenting.
Florida asks this Court to cap Georgia's use of water in
the Apalachicola-Chattahoochee-Flint River Basin (Basin).
Florida claims that such a cap would allow additional water
to fow into the Apalachicola River and Bay, which would
beneft Florida by alleviating certain ecological harms. To
prevail under our precedents, Florida must present clear and
convincing evidence that its proposed cap will beneft Florida
more than it harms Georgia. See Colorado v. New Mexico,
459 U. S. 176, 187 (1982) (Colorado I). The Special Master
applied this balance-of-harms standard and, after presiding
over a 1-month trial involving 40 witnesses and more than
2,000 exhibits, found that Florida had not met its burden.
Because that fnding is well supported by the evidence, I
would have overruled Florida's objections to the Special
Master's Report (Report) and denied Florida's request for
relief. I respectfully dissent.
I
The Court's recitation of the facts focuses on the geography
of the relevant rivers and the failed compact negotiations
between Florida and Georgia, but does not provide any
details about the respective interests of Florida and Georgia
or the extensive operations of the United States Army Corps
of Engineers (Corps). See ante, at 807–810. Because these
missing details are crucial to determining whether equitable
relief is warranted, I will supply them.
A
This case concerns Georgia's use of water in the Basin.
Spanning Georgia, Alabama, and Florida, the Basin consists
of three rivers—the Chattahoochee, the Flint, and the Apalachicola.
The Chattahoochee River starts in northern
Georgia, just north of Atlanta, and fows southwest along the
Alabama-Georgia border until it reaches Florida. The Flint
844 FLORIDA v. GEORGIA
Thomas, J., dissenting
River starts east of the Chattahoochee, just south of Atlanta,
and fows south until it reaches Florida. The Chattahoochee
and Flint Rivers meet at the border of Florida, forming Lake
Seminole. From Lake Seminole, the Apalachicola River
fows south through the Florida Panhandle and into the Gulf
of Mexico at Apalachicola Bay.
Both Georgia and Florida depend on Basin water. The
Chattahoochee River supplies most of the water for metropolitan
Atlanta. And the Flint River supplies most of the
water for southern Georgia's large agricultural industry. In
Florida, the Apalachicola River sustains a unique ecosystem
that is home to a number of species, including mussels,
sturgeon, and tupelo trees. Flows from the Apalachicola
River (or River) also support the Apalachicola Bay (or Bay)
ecosystem—one of the most productive estuaries in the
Northern Hemisphere. The Apalachicola Bay's low-salinity
and high-nutrient waters make it an extraordinarily productive
habitat for oysters and other sea life.
Although both Georgia and Florida depend on the Basin,
the Florida portion of the Basin is signifcantly less populated
and productive. The Georgia portion has a population
of more than 5 million and accounts for around $283 billion
in gross regional product per year. Direct Testimony of
Robert Stavins 2, 16 (Stavins). The Florida portion, by contrast,
has a population of fewer than 100,000 people and generates
around $2 billion in gross regional product per year.
Id., at 17. In relative terms, Georgia accounts for 98% of
the population and 99% of the economic production. Ibid.
B
Florida and Georgia are not the only stakeholders in the
Basin. The United States, through the Corps, operates fve
dams and four reservoirs on the Chattahoochee River. Only
the three northernmost dams can store signifcant amounts
of water. The two dams that are farthest south on the Chattahoochee—
the George W. Andrews Dam and the Jim WoodCite
as: 585 U. S. 803 (2018) 845
Thomas, J., dissenting
ruff Dam—cannot store an appreciable amount of water.
The Corps does not operate any dams on the Flint River,
which fows unimpeded until it reaches the Jim Woodruff
Dam at Lake Seminole.
The Corps operates its dams as a unit. It must do so in
a way that achieves its congressionally authorized purposes,
such as facilitating navigation, generating hydroelectric
power, protecting the national defense, promoting recreation,
maintaining the commercial value of riparian lands,
and protecting the water supply for the surrounding metropolitan
Atlanta area. See H. R. Doc. No. 342, 76th Cong.,
1st Sess., 77 (1939); River and Harbor Act of 1945, 59 Stat.
17; In re MDL–1824 Tri-State Water Rights Litigation, 644
F. 3d 1160, 1167 (CA11 2011). The Corps also must ensure
compliance with other federal laws, including laws governing
the conservation of fsh and wildlife, the quality of water,
and the protection of threatened and endangered species.
See, e. g., Endangered Species Act of 1973, 16 U. S. C. § 1531
et seq.; Flood Control Act of 1944, 33 U. S. C. § 701 et seq.;
Water Supply Act of 1958, 43 U. S. C. § 390b.
Given these numerous demands, the Corps has long relied
on water-control manuals to guide its operations of the dams.
The current manual dictates the minimum amount of water
that the Corps must provide to the Apalachicola River under
various conditions. Three variables affect that minimum
amount of water: the time of year, the amount of water in
the Corps' storage reservoirs, and the amount of additional
water entering the Basin.
The manual is very complex, spanning 1,190 pages, but
only a few provisions are relevant here. The manual provides
that, as a general rule, most additional water that enters
the Basin will pass through to Florida via the Apalachicola
River. But, in certain circumstances, the Corps will
artifcially increase or decrease the amount of water that
passes through to ensure that 5,000 cubic feet per second
fows into the Apalachicola River. For example, if the natu846
FLORIDA v. GEORGIA
Thomas, J., dissenting
ral streamfow entering the Basin (Basin infow) is less than
5,000 cubic feet per second, then the Corps will artifcially
augment the fow by releasing additional water from its
reservoirs. Or, if the amount of water in the Corps' reservoirs
falls below a certain amount, the Corps will trigger
what it calls “drought operations.” During drought operations,
no matter how much water is entering the Basin, the
Corps will generally release only 5,000 cubic feet per second
into the Apalachicola River until its reservoirs are completely
replenished.1
The Corps' current manual refects many lessons that it
has learned over the past decade. In March 2006, for example,
the Corps created an interim operating plan, which set
high fow requirements to protect endangered species in the
Apalachicola River. Direct Testimony of Wei Zeng 44–45
(Zeng). But those high fow requirements prevented the
Corps from saving enough water during droughts to refll its
reservoirs, putting all its other projects at risk. Id., at 45.
So the Corps switched to more storage-friendly rules. Id.,
at 45–46. In December 2006, the Corps modifed its operating
plan to require a portion of the water entering the Basin
to be devoted to reflling the Corps' reservoirs. Id., at 46.
When this modifcation proved insuffcient, the Corps created
special rules for droughts, which saved even more water by
decreasing the minimum fow into the Apalachicola River.
Id., at 46–47. Later, the Corps altered its operations to
save still more water, by increasing the amount it could dedicate
to reflling its reservoirs during nondroughts and lowering
the threshold for triggering the special drought rules.
Id., at 47; Brief for United States as Amicus Curiae 11 (Brief
1 If the amount of water in the Corps' reservoirs falls to critically low
levels, then the Corps will release only 4,500 cubic feet per second into
the Apalachicola River. These extreme drought operations have not been
triggered in recent droughts. See Direct Testimony of Phillip Bedient 14
(Bedient) (showing that fows remained around 5,000 cubic feet per second
during the 2011 and 2012 droughts).
Cite as: 585 U. S. 803 (2018) 847
Thomas, J., dissenting
for United States). The Corps' current manual is a product
of this decade of trial and error.
The current manual also refects decades of litigation.
The Corps' frst manual went into effect in 1958, and the
Corps did not propose a new one until 1989. As soon as it
did, Alabama sued. Florida, Georgia, and other stakeholders
eventually sued as well. For its part, Florida alleged
that the Corps' operations under the proposed manual and
subsequent interim operating plans violated the Endangered
Species Act by injuring mussels and sturgeon, as well as noncovered
species like oysters and tupelo trees.2 The various
lawsuits were eventually consolidated in the Middle District
of Florida. Twenty years after Alabama frst sued, the District
Court ruled for Alabama but against Florida. The
United States Court of Appeals for the Eleventh Circuit reversed
with respect to Alabama. In re MDL–1824 Tri-State
Water Rights Litigation, supra, at 1192, 1205. And Florida's
case became moot in 2012, once the Corps issued the
immediate predecessor to its current manual.
II
A
Soon after the litigation against the Corps ended, Florida
sought leave to fle this lawsuit against Georgia, requesting
an equitable apportionment of Basin water. This Court
granted Florida leave to fle its complaint in 2014. Florida's
complaint alleged that Georgia was consuming more than its
fair share of water in the Basin, causing economic and ecological
harms to Florida. Florida sought relief only against
Georgia and disclaimed seeking any “affirmative relief
against the United States . . . with respect to the Corps'
2 The U. S. Fish and Wildlife Service did not agree. It concluded that
the minimum fows in the proposed manual and interim operating plans
were suffcient to protect endangered species in the Apalachicola River.
Zeng 46–47.
848 FLORIDA v. GEORGIA
Thomas, J., dissenting
operation of the federally authorized dam and reservoir system.”
Complaint ¶15. The United States could not be
joined as a party because it declined to waive its sovereign
immunity.
Georgia moved to dismiss Florida's complaint for failure to
join the United States as a necessary party. Florida opposed
the motion, arguing that the United States was not
necessary because Florida “ `ha[d] no quarrel' with the
Corps' operation of dams, and [its] lawsuit is not seeking to
impose a `minimum fow' regime on the Corps.” Florida
Brief in Opposition to Motion To Dismiss 26. Florida reiterated
that it “is not seeking any relief whatsoever with respect
to the operations of the dams” and is “not seeking any
relief asking the Corps to control the dams or pull the levers
in any specifc way.” Tr. of Oral Arg. on Motion To Dismiss
27. Florida conceded that “if [the Special Master] conclude[
s] after a trial that caps on [Georgia's] consumption will
not redress Florida's harm, then Florida will not have proved
its case.” Id., at 29.
Based on Florida's concessions, the Special Master denied
Georgia's motion to dismiss. The Special Master recognized
that Florida had “disclaimed any intention to seek a decree”
binding the Corps in order to “sideste[p] the need to join the
United States as a party.” Order on Motion To Dismiss,
p. 12. The Special Master warned Florida that this strategy
was a “ `two edged sword.' ” Id., at 13. “Having voluntarily
narrowed its requested relief and shouldered the burden
of proving that the requested relief is appropriate,” the Special
Master explained, “Florida's claim will live or die based
on whether Florida can show that a consumption cap [on
Georgia alone] is justifed and will afford adequate relief.”
Ibid.
B
The parties proceeded to trial. Florida sought to cap
Georgia's use of Basin water at its current levels through at
least 2050. See Florida Pre-trial Brief 5; Updated Pre-Filed
Direct Testimony (PFDT) of Dr. George M. Hornberger 58
Cite as: 585 U. S. 803 (2018) 849
Thomas, J., dissenting
(Hornberger). And, during drought years, Florida sought
to reduce Georgia's use of Basin water by between 1,500 and
2,000 cubic feet per second. See Florida Pre-trial Brief 5;
Hornberger 58; Updated PFDT of David Sunding 42 (Sunding);
Florida Post-Trial Brief 18.
To support its proposed caps, Florida frst presented testimony
about how much additional water it would receive during
droughts. According to Florida's evidence, Georgia is
currently using enough water during droughts to decrease
streamfow on the Apalachicola River by around 4,000 cubic
feet per second. See Hornberger 2. Florida proposed cutting
that amount by half. One of its experts opined that, by
implementing several conservation measures, Georgia could
increase fows in the Apalachicola River during droughts by
1,500 to 2,000 cubic feet per second. See Sunding 3; Hornberger
4. Florida estimated that these measures would cost
Georgia an additional $35.2 million per year. Sunding 44.
Florida next presented evidence about how this additional
water would beneft various species in the Apalachicola
River. It argued that additional fows could beneft mussels,
which need consistent fows of at least 6,000 cubic feet per
second in the summer; sturgeon, which need consistent fows
of at least 7,000 cubic feet per second in the summer; and
tupelo trees, which need consistent fows of at least 14,100
cubic feet per second in the summer. See Updated PFDT
of J. David Allan 23–24, 26, 32–33, 41, 44–45 (Allan). Additional
fows could also beneft the oysters in the Apalachicola
Bay by lowering its salinity. See Updated PFDT of J. Wilson
White 48 (White); PFDT of Marcia Greenblatt 15. All
of Florida's evidence about these species, however, addressed
the benefts of additional water during droughts. See Report
63. Florida presented no evidence of any benefts during
nondroughts.
Finally, Florida attempted to prove that the additional
water would actually reach Florida when it needs the
water—i. e., during droughts. To do this, Florida needed to
show that the Corps would deviate from its normal operating
850 FLORIDA v. GEORGIA
Thomas, J., dissenting
protocols, which specify that the Corps will generally release
only 5,000 cubic feet per second during droughts. Florida
relied on Dr. Peter Shanahan to make this showing. Dr.
Shanahan testifed that “the Corps would not . . . hold back
water and thwart the additional fow benefts [that] Florida
would receive from Georgia['s] conservation efforts.” Updated
PFDT of Dr. Peter Shanahan 1 (Nov. 15, 2016). He
reasoned that the Corps would either choose to release the
additional water in its discretion or be compelled to release
the additional water because its upstream dams have limited
storage capacity and it does not operate any dams on the
Flint River. Id., at 17–27.
In its defense, Georgia presented evidence that its current
use has only a negligible impact on the amount of water that
Florida receives through the Apalachicola River. Georgia's
experts showed that the State's water use amounted to just
4% of Basin fows in an average year and 8% of Basin fows
in a dry year, leaving anywhere from 92% to 96% of Basin
water for Florida. See Stavins 16–18; Bedient 44–45. According
to Georgia's experts, the primary factor that dictates
fows in the Apalachicola River is precipitation, not consumption.
See Direct Testimony of Charles A. Menzie 15.
Georgia's experts also testifed that Georgia's water use
was entirely reasonable. Metropolitan Atlanta had taken
substantial steps to conserve water, reducing its consumption
to levels that even Florida's expert admitted demonstrated
effective water conservation. Direct Testimony of
Peter Mayer 2; see also id., at 18 (showing that Florida's
Basin residents used more water per capita than residents
in metropolitan Atlanta). And, instead of Florida's estimate
of 4,000 cubic feet per second, Georgia estimated that its
water use had never decreased streamfow by more than
2,000 cubic feet per second, and only rarely by more than
1,400 cubic feet per second. See Zeng 2, 7.
Georgia also presented evidence that Florida's proposed
caps would cost Georgia signifcantly more than they would
Cite as: 585 U. S. 803 (2018) 851
Thomas, J., dissenting
beneft Florida. Georgia's economic expert estimated that
Florida's proposed caps would impose costs of more than
“$2.1 billion for municipal and industrial water users and
$335 million for Georgia farmers . . . every single year.”
Stavins 2. Georgia's expert also testifed that Florida's expert
had dramatically lowered his initial evaluation of the
costs to Georgia, which was initially $191 million. Id., at 31;
see also 11 Trial Tr. 2787. That change apparently occurred
because Florida's expert narrowed his defnition of “cost” to
exclude anything but additional, direct governmental expenditures.
See id., at 2791. But regardless of the precise
cost, Georgia's expert testifed that it would be inequitable
to impose it on Georgia. “Georgia has 5 times the land area,
56 times the population, 80 times the number of employees,
and 129 times the [gross regional product] of . . . Florida.
[Yet it] consumes only 4 percent of the total waters available
in the . . . Basin in an average year, and only 8 percent of
the total waters available in the . . . Basin in a dry year,
leaving the rest for Florida's use.” Stavins 2. Further,
Florida's own expert estimated that a cap on Georgia would
produce only minimal benefts for Florida: Cutting Georgia's
water use in half would increase the oyster biomass in Apalachicola
Bay by less than 0.6% in most instances, and only
1.2% during the worst droughts. White 50–51. These additional
oysters would be worth only a few hundred thousand
dollars. Stavins 51–52.
Finally, Georgia rebutted Florida's assertion that, despite
the Corps' operations, Florida would actually receive the additional
water that a cap on Georgia would create during
droughts. Using models that accounted for the Corps' prior
operations, Georgia's expert on the Corps, Dr. Philip Bedient,
testifed that Florida would receive only 5,000 cubic
feet per second during droughts, no matter how much additional
water was created by a cap on Georgia and regardless
of whether that water fowed into the Flint or the Chattahoochee
River. See Bedient 23–26, 28–30. The United States
852 FLORIDA v. GEORGIA
Thomas, J., dissenting
fled an amicus brief to the same effect. It confrmed that,
during droughts, “[t]he Corps expects . . . that Apalachicola
River fows would be very similar with or without a consumption
cap [on Georgia].” Post-Trial Brief 17–18 (United
States Post-Trial Brief).3
C
All told, the trial lasted one month. After hearing the
witnesses and reviewing the evidence, the Special Master
recommended ruling against Florida. Report 70. The Special
Master found that Florida likely had proved harm to its
oysters,4 and assumed that Georgia was using too much
water for agricultural purposes.5 Id., at 31–34. But the
Special Master did not decide whether Georgia's agricultural
water use caused the harm to Florida's oysters. Id., at 34.
Instead, he concluded that Florida had failed to prove that a
cap on Georgia would appreciably beneft it given the Corps'
operations in the Basin. Id., at 3, 31–34.
Citing this Court's precedents requiring States to prove
an appreciable beneft before they can obtain an equitable
apportionment that interferes with established uses, the
Special Master concluded that Florida could not prove that
its injury was “redressable by the Court.” See id., at 24
(citing, inter alia, Idaho ex rel. Evans v. Oregon, 444 U. S.
380, 392 (1980) (Idaho I); Washington v. Oregon, 297 U. S.
517, 523 (1936)); Report 30 (same); see also id., at 27 (citing
New Jersey v. New York, 283 U. S. 336, 342–345 (1931); Colo-
3 The United States has made similar representations to this Court.
See, e. g., Brief for United States 26–29 (explaining that the Corps “would
not generally expect” fows into Florida to increase during droughts, even
if Florida convinced this Court to cap Georgia's water use).
4 The Special Master noted that Florida's alleged injuries to mussels,
sturgeon, and tupelo trees were “less compelling.” Report 64, n. 42.
5 As for Georgia's municipal and industrial water use, the Special Master
concluded that it was “less clear” that these uses were “unreasonable,”
given that Georgia had “taken signifcant steps to conserve water in the
Atlanta metropolitan region.” Id., at 34, n. 28.
Cite as: 585 U. S. 803 (2018) 853
Thomas, J., dissenting
rado I, 459 U. S., at 187). According to the Special Master,
Florida “ha[d] not proven by clear and convincing evidence
that any additional streamfow in the Flint River or in the
Chattahoochee River would be released from the Jim Woodruff
Dam into the Apalachicola River at a time that would
provide a material beneft to Florida (i. e., during dry periods).”
Report 47. The Special Master also found that “Florida
ha[d] not met its requirement to show by clear and convincing
evidence that its injury can be redressed by increased
fows during non-drought conditions” because its “trial presentation
did not address the benefts of increased fows during
`normal' periods” and Georgia's evidence showed “an absence
of any signifcant beneft to Florida.” Id., at 63–65.
III
Before delving into the parties' arguments, it is helpful to
have a basic understanding of the rules that govern this
Court's equitable-apportionment jurisprudence—or at least
what used to be the rules before the Court's opinion muddled
them beyond recognition.
First, in equitable-apportionment cases, as in all cases, this
Court requires the complaining party to prove standing.
Maryland v. Louisiana, 451 U. S. 725, 735–736 (1981); Wyoming
v. Oklahoma, 502 U. S. 437, 447, 452 (1992); see also
3 A. Kelley, Water and Water Rights § 45.02(b), p. 45–12
(3d ed. 2018) (Kelley) (noting that standing is a justiciability
requirement for equitable-apportionment cases). To prove
standing, a complaining State must demonstrate that it has
“ `suffered a wrong through the action of the other State . . .
which is susceptible of judicial enforcement according to the
acceptable principles of the common law or equity systems of
jurisprudence.' ” Maryland, supra, at 735–736; Wyoming,
supra, at 452.
Second, this Court requires the State seeking an apportionment
to show by clear and convincing evidence a “threatened
invasion of rights . . . of serious magnitude.” New
854 FLORIDA v. GEORGIA
Thomas, J., dissenting
York v. New Jersey, 256 U. S. 296, 309 (1921); accord, Colorado
I, supra, at 187, n. 13; Kelley § 45.04. Our precedents
do not clarify whether this requirement goes to the case's
justiciability, the merits of the complaining State's claim, or
the propriety of affording injunctive relief. See Kelley
§45.04. But they are clear that such a showing must be
made to obtain relief. See Connecticut v. Massachusetts,
282 U. S. 660, 669 (1931).
Third, the State seeking an apportionment must “demonstrat[
e] by clear and convincing evidence that the benefts
of the [apportionment] substantially outweigh the harm that
might result.” Colorado I, supra, at 187; accord, Colorado
v. New Mexico, 467 U. S. 310, 316–317 (1984) (Colorado II);
Kelley § 45.06, at 45–34 to 45–35. Since this Court's frst
equitable-apportionment case, this balance-of-harms test has
been the basic merits inquiry that decides whether a State
is entitled to an apportionment. See id., § 45.06(c)(1), at 45–
39 to 45–40 (“Harm-beneft comparison goes back to the
Court's frst equitable apportionment case, Kansas v. Colorado[,
206 U. S. 46, 113–114 (1907) (Kansas I)]”). As part of
the balance-of-harms test, this Court has required the State
seeking an apportionment to prove that it would appreciably
beneft from the apportionment—otherwise, the State could
not possibly prevail in the balance-of-harms analysis. Idaho
I, supra, at 392; Washington, supra, at 523; see also Kelley
§ 45.06(c)(1), at 45–39 (explaining that this appreciablebeneft
requirement is part of the “harm-beneft” balance).
Fourth, if the State seeking an apportionment makes all
these showings, this Court must craf t an equitableapportionment
decree. Our precedents hold that a State
should not be denied a remedy merely because calculating
the appropriate apportionment is diffcult. See Idaho ex rel.
Evans v. Oregon, 462 U. S. 1017, 1026 (1983) (Idaho II).
Reasonable predictions about future conditions are suffcient.
Ibid.
Cite as: 585 U. S. 803 (2018) 855
Thomas, J., dissenting
This case is about the third rule: the balance-of-harms
analysis and, specifcally, its appreciable-beneft requirement.
The Special Master found that Florida had not proved that
its requested cap on Georgia's water use would appreciably
beneft it, since Florida could not prove that it would receive
more water when it needed it. That this case is about the
third rule is important. Throughout its opinion, the Court
mushes the requirements from our precedents together,
merging cases and principles from one area with cases and
principles from another—sometimes in the same sentence.
But our precedents are not so convoluted. They articulate
clear rules, and the Special Master correctly applied one of
them when making his recommendation in this case. He did
not err by failing to apply the unrecognizable mishmash of
principles set out in the Court's opinion.
IV
Florida raises three objections to the Special Master's Report.
First, it argues that the Special Master required it to
satisfy a legal standard that was too demanding. Second,
Florida argues that it should prevail under the correct standard
because, if this Court enters an equitable-apportionment
decree, the Corps will likely allow more water to fow into
Florida during droughts. And third, even if the Corps does
not release more water into Florida during droughts, Florida
argues that a cap on Georgia would still beneft it during
nondroughts. None of these arguments has merit.
A
Florida's frst objection fails because the Special Master
applied the correct legal standard. A careful reading of his
Report demonstrates that he applied the ordinary balanceof-
harms test dictated by this Court's precedents. He did
not, as the Court implies, deny Florida relief because calculating
an appropriate apportionment was too diffcult or be856
FLORIDA v. GEORGIA
Thomas, J., dissenting
cause Florida failed to satisfy the “threshold” redressability
requirement for Article III standing. And even if the Special
Master did apply the wrong standard, his misstep would
not justify a remand because his fndings are plainly correct
and establish that Georgia should prevail under the balanceof-
harms test.
1
The Special Master applied the balance-of-harms test from
this Court's precedents. A State seeking an equitable apportionment
that interferes with established uses must
“demonstrat[e] by clear and convincing evidence that the
benefts of the [apportionment] substantially outweigh the
harm that might result.” Colorado I, 459 U. S., at 187; accord,
Colorado II, supra, at 316–317. This heavy burden
refects the need for “judicial caution” before granting equitable
apportionments, which “involve the interests of quasisovereigns,
present complicated and delicate questions, and
. . . necessitate expert administration.” Colorado v. Kansas,
320 U. S. 383, 392 (1943) (Kansas II); accord, Colorado
II, 467 U. S., at 316 (explaining that the clear-and-convincingevidence
burden “appropriately balance[s] the unique interests
involved in water rights disputes between sovereigns”).
It also refects “this Court's long-held view that the proposed
diverter should bear most, if not all, of the risks of erroneous
decision” because the benefts he claims for proposed future
uses are usually “ `speculative and remote' ” while the costs
of disrupting established uses are “ `typically certain and immediate.'
” Ibid. (quoting Colorado I, supra, at 187).
As part of the balance-of-harms analysis, this Court has
repeatedly held that the State seeking to divert water
from existing uses must show that it will obtain some appreciable
beneft from an equitable apportionment. See, e. g.,
Idaho I, 444 U. S., at 392; New Jersey, 283 U. S., at 345. This
appreciable-beneft requirement refects the fact that a minimal
beneft cannot outweigh the heavy costs that inevitably
accompany equitable-apportionment decrees. See Colorado
I, supra, at 187 (“[T]he equities supporting the [status quo]
Cite as: 585 U. S. 803 (2018) 857
Thomas, J., dissenting
will usually be compelling”); Kansas II, supra, at 393 (expressing
“great and serious caution” over granting equitable
apportionments because they “interfer[e] with the action of
a State”). Put another way, the Court will not “bring distress
and even ruin to a long-established [water use] for no
other or better purpose than to vindicate a barren right.”
Washington, 297 U. S., at 523; see also Kansas I, 206 U. S.,
at 109 (“[B]efore, at the instance of a sister state, [a State's
water use] is destroyed or materially interfered with, it
should be clear that such sister state has not merely some
technical right, but also a right with a corresponding beneft”).
Such an action would run contrary to “the high equity
that moves the conscience of the court in giving judgment
between states.” Washington, 297 U. S., at 523.
For example, in Washington v. Oregon—a case with facts
strikingly similar to this one—the Court refused to cap Oregon's
water use because it “ `would materially injure Oregon
users without a compensating beneft to Washington users.' ”
Ibid. In that case, Washington complained about “temporary
dams” that Oregon residents had erected to irrigate
their crops during “seasons of [water] shortage.” Id., at 522.
Removing the dams, however, would mean that, “[d]uring
the period of water shortage, only a small quantity of water
would go by” and “would be quickly absorbed and lost in the
deep gravel beneath the channel.” Id., at 522–523. Because
a cap on Oregon would not beneft Washington by supplying
water when it most needed it, the Court declined to
grant Washington's requested relief. Id., at 520–523.
The Special Master applied this appreciable-beneft requirement.
As he explained, Florida “ha[d] not proven by
clear and convincing evidence” that the Corps would release
any additional water “at a time that would provide a material
beneft to Florida (i. e., during dry periods).” Report
47; see also id., at 47–48 (“[T]he Corps' operation[s] . . . rende[
r] any potential beneft to Florida from increased streamfow
in the Flint River uncertain and speculative”). The
Special Master likewise found “an absence of any signifcant
858 FLORIDA v. GEORGIA
Thomas, J., dissenting
beneft to Florida” during nondrought conditions. Id., at 65;
see also id., at 69 (“Florida has not shown that it would beneft
from increased pass-through operations under normal conditions”);
id., at 62–63 (“[T]he potential benefts to Florida of
increased fows . . . when the Corps is not in drought operations
are uncertain, rendering the effcacy of any relief speculative”).
Tellingly, the Special Master relied exclusively on
this Court's precedents applying the appreciable-beneft requirement.
See id., at 24 (citing, inter alia, Idaho I, supra,
at 392; Washington, supra, at 523); Report 30 (same); id., at
27 (citing New Jersey, supra, at 345; Colorado I, supra, at
187). And Florida agreed that it had to present proof of
some beneft. See, e. g., Florida's Post-Trial Response Brief
63 (conceding that it had to “prove that additional fows from
a . . . reduction in Georgia's consumption will result in meaningful
benefts to the Bay and River”). In short, the Special
Master correctly applied our precedents and required Florida
to show that it would obtain some appreciable beneft
from an equitable-apportionment decree.
2
The Court does not disagree that Florida failed to prove
an appreciable beneft. Instead, it simply asserts that a decision
on that question is “premature.” Ante, at 813. It is
incredibly odd to conclude that a Special Master's merits determination
is “premature” after a full trial. The Court can
draw that strange conclusion only by confating the rules
that govern our equitable-apportionment jurisprudence and
then faulting the Special Master for misapplying two rules
that he never applied.
The Court criticizes the Special Master for applying “too
strict a standard” when deciding the “ `threshold' ” question
whether the Court would be “able to fashion an appropriate
equitable decree.” Ante, at 820. Although the Court's reasoning
is far from clear, it appears to mean one of two things.
The Court either means that the Special Master erred by
denying relief on the ground that it was too diffcult to calcuCite
as: 585 U. S. 803 (2018) 859
Thomas, J., dissenting
late the appropriate apportionment—the fourth rule mentioned
above. Or the Court means that the Special Master
erred by denying relief on the ground that Florida could not
prove Article III standing—the frst rule mentioned above.
But the Special Master did not deny relief for either of these
two reasons.
a
Both the Court and Florida suggest that the Special
Master contravened this Court's statement in Idaho II
that “ `[u]ncertainties about the future . . . do not provide a
basis for declining to fashion a decree.' ” Ante, at 816, 839
(quoting Idaho II, 462 U. S., at 1026); see also ante, at 818,
822 (suggesting that the Special Master violated Idaho II by
concluding that “ `the formulation of a workable decree is
impossible' ”); Brief for Plaintiff 30–31. But the Special
Master nowhere contradicted this rule.
The rule from Idaho II is a rule about fashioning an appropriate
remedy when the complaining State has prevailed on
the merits. In Idaho II, the Special Master concluded that
he could not determine Idaho's entitlement to fsh “for any
past or future year” because “several unknown variables”
made it too diffcult to decide how many fsh would be available
to harvest at any given time. Special Master's Report,
O. T. 1982, No. 67, Orig., p. 30. The Special Master rejected
Idaho's proposed formula for calculating its entitlement because
he could not understand the predictive models or
mathematics involved in applying it. Id., at 40–42. Before
this Court, Idaho objected to the Special Master's conclusion,
arguing that its proposed formula relied on procedures “that
are either being currently employed by defendants or which
involve simple mathematical computations. ” Brief for
Plaintiffs in O. T. 1982, No. 67, Orig., p. 82. The Court accepted
Idaho's argument, noting that a decree need not “always
be mathematically precise or based on defnite present
and future conditions” and that “Idaho's proposed formula
for apportioning the fsh is one possible basis for a decree.”
Idaho II, 462 U. S., at 1026. “Uncertainties about the fu860
FLORIDA v. GEORGIA
Thomas, J., dissenting
ture,” the Court explained, “do not provide a basis for declining
to fashion a decree.” Ibid.
Unlike the Special Master in Idaho II, the Special Master
in this case did not conclude that it was too diffcult to calculate
the amount of water that Florida should receive. As
the Court acknowledges, ante, at 827, the Special Master assumed
it was feasible to impose Florida's requested cap on
Georgia's water use and “accept[ed] Florida's estimates of
the increased streamfow that would result from a consumption
cap.” Report 67, n. 43; see id., at 34–35. But even if
a cap on Georgia generated the additional water that Florida
claimed it would (1,500 to 2,000 cubic feet per second), the
Special Master concluded that it would not appreciably beneft
Florida because it would not be passed through when
Florida needed it. See id., at 47–48, 62–65, 69. That is why
the Special Master cited the appreciable-beneft rule from
Idaho I, 444 U. S., at 392, and Washington, 297 U. S., at 523.
He did not fail to make reasonable predictions in shaping a
remedy or otherwise contravene the rule from Idaho II.
b
Florida alternatively contends that the Special Master applied
the “redressability” requirement of Article III standing.
See Brief for Plaintiff 29–32. At some points, the
Court appears to agree with this characterization, as it describes
the appreciable-beneft rule as an Article III standing
requirement. See ante, at 817–818 (quoting the Article
III standing rule from Wyoming v. Oklahoma, 502 U. S., at
447, 452, Maryland v. Louisiana, 451 U. S., at 735–736, and
Massachusetts v. Missouri, 308 U. S. 1, 15 (1939), and describing
the appreciable-beneft rule from Kansas I and
Washington as a “[m]ore specif[c]” articulation of that rule).
This argument is incorrect.
As explained, the Special Master applied the ordinary
balance-of-harms analysis and found that Florida had not
Cite as: 585 U. S. 803 (2018) 861
Thomas, J., dissenting
demonstrated an appreciable beneft from a cap on Georgia's
use. Tellingly, the Special Master relied exclusively on
cases conducting the balance-of-harms analysis. His Report
does not cite any standing cases, or even mention “standing”
or “Article III.” Neither do any of the pre-trial or posttrial
briefs that the parties fled. True, the Special Master's
Report sometimes describes the appreciable-beneft requirement
as a question of “redressability”—a word that is also
associated with Article III standing. But the Special Master
was merely following the parties' lead, as they phrased
the appreciable-beneft requirement in terms of “redress”
throughout the litigation. See Tr. of Oral Arg. on Motion
To Dismiss 29 (Florida admitting that it must show “that
caps on consumption will . . . redress [its] harms” to “prov[e]
its case”); Florida Pre-Trial Brief 37–39 (describing how a
consumption cap “can redress Florida's worsening injuries”
and “signifcantly beneft Florida's ecology”); Georgia Post-
Trial Brief 80–88 (describing the appreciable-beneft aspect
of the balance-of-harms test as a “redress” requirement);
Georgia's Post-Trial Response Brief 3, 7 (same); see also
United States Post-Trial Brief 19 (taking no position “on
whether Florida has proved that a consumption cap would
produce enough additional [B]asin infow at the right times
to redress Florida's alleged harm and justify the cost of imposing
a consumption cap” (emphasis added)). That the parties
and the Special Master adopted this shorthand does not
change the Special Master's analysis, which focused squarely
on the appreciable-beneft requirement.6
6 The Court places great weight on the fact that the Special Master
referred to redressability as a “ `threshold' ” requirement. See ante, at
813–814, 820, 823. But showing an appreciable beneft is a “threshold”
requirement for prevailing under the balance-of-harms test, as a State
that cannot show an appreciable beneft obviously cannot show that the
balance of harms tilts in its favor. In other words, the Court need not
engage in a full-scale balancing of benefts and harms if the party that
bears the burden of proof has nothing to place on its side of the scale; it
862 FLORIDA v. GEORGIA
Thomas, J., dissenting
c
Because the Court wrongly assumes that the Special Master
denied relief on the basis rejected in Idaho II or for lack
of Article III standing, it faults the Special Master for imposing
the higher burden of proof that governs the merits—i. e.,
“ `clear and convincing evidence.' ” See ante, at 820–823.7
Of course, the far simpler explanation for why the Special
Master applied the merits standard is that he was, in fact,
making a decision about the merits, not about remedies or
standing.
The Court also appears to fault the Special Master for addressing
the appreciable-beneft requirement without frst
making several preliminary fndings. The Court asserts
that Special Masters must make specifc factual determinations
in every case about the harm that the complaining
State suffered, the exact amount of water needed to remedy
that harm, and a host of other factors. See ante, at 817–821.
The Court's suggested order of operations, which it appears
to invent out of thin air, would fundamentally transform
our equitable-apportionment jurisprudence. It will
require States to litigate (and this Court to resolve) a host
of complex factual questions, even where the State seeking
the apportionment is obviously not entitled to relief because
it cannot show an appreciable beneft—a requirement that
Florida agrees is necessary for it to prevail, see Florida Post-
Trial Response Brief 63 (agreeing it must “prove that addican
reject that type of case at the “threshold.” That the Special Master
used the word “threshold” does not suggest that he was doing anything
other than applying the ordinary balance-of-harms test.
7 In faulting the Special Master for requiring clear and convincing evidence,
the Court combines the rule from Idaho II with the balance-ofharms
test from Kansas I, Washington, and Idaho I. See ante, at 822–
823. The Court reconciles these precedents as follows: “[T]hese [cases]
apply to the general availability of judicial relief—not to the details of a
fnal decree or to the workability of a decree that will depend on those
details.” Ibid. I do not understand this sentence, and I pity the litigants
and Special Masters who will be forced to decipher it.
Cite as: 585 U. S. 803 (2018) 863
Thomas, J., dissenting
tional fows from a . . . reduction in Georgia's consumption
will result in meaningful benefts to the Bay and River”); Tr.
of Oral Arg. on Motion To Dismiss 29 (admitting it must show
“that caps on consumption will . . . redress [its] harms” to
“prov[e] its case”). In no other area of the law do we require
unnecessary fndings and conclusions when a key element of
the plaintiff 's case is missing. And we have not applied this
rule in equitable-apportionment cases either. See, e. g.,
Idaho II, 462 U. S., at 1027–1029 (denying relief, despite the
Special Master's erroneous ruling on the requested remedy,
because his fndings also supported the conclusion that Idaho
could not show injury and thus was not entitled to relief on
the merits). The ineffciencies that this would create, and
the costs it would impose on States, are obvious. Yet the
Court faults the Special Master for resolving the dispositive
question in this case frst, without jumping through a series
of unnecessary hoops. This is precisely the opposite of what
Special Masters should be doing and what this Court should
be encouraging.
3
Even if the Court is correct that the Special Master denied
Florida relief for some reason other than the merits, there is
no reason to send this case back for a do-over. As the Court
acknowledges, “ `the ultimate responsibility for deciding what
are correct fndings of fact remains with us.' ” Ante, at
823 (quoting Colorado II, 467 U. S., at 317). We must bring
our independent judgment to bear based upon “our own independent
examination of the record.” Kansas v. Missouri,
322 U. S. 213, 232 (1944). An independent examination of
the record confrms that the Special Master was correct to
fnd that the Corps would not change its operations during
droughts if this Court capped Georgia's water use and thus
Florida would not beneft from a cap during droughts. See
Part IV–B–1, infra. The Special Master also was correct
to fnd that Florida presented no evidence of a beneft during
nondroughts. See Part IV–B–2, infra. Those fndings
864 FLORIDA v. GEORGIA
Thomas, J., dissenting
support a judgment in Georgia's favor under the traditional
balance-of-harms analysis.
It makes little sense to send this case back to the Special
Master so that he can amend his Report to say “appreciable
beneft” instead of “redress” and then send this case right
back to this Court.8 That pointless exercise will only needlessly
prolong this litigation. The Court's subtle suggestion
that Florida could present “additional evidence” on remand,
ante, at 840, is not a satisfactory response. During their 18
months of discovery, the parties produced 7.2 million pages
of documents, served 130 third-party subpoenas, issued more
than 30 expert reports, and conducted nearly 100 depositions,
including 29 expert depositions. Florida thus had a
more-than-ample opportunity to gather its evidence and then
present it at a 1-month trial. Giving Florida another bite at
the apple will likely yield no additional evidence, but it will
be unfair to Georgia, which has already spent the time and
resources to defeat the case that Florida chose to present.
In short, we have all the evidence we need to decide this
case now. We should have done so.
B
Florida's second and third objections—which challenge the
Special Master's fnding that Florida had not met its burden
under the balance-of-harms test—also fail. As explained, a
State seeking to interfere with established uses must prove
its case by clear and convincing evidence—a “much greater”
burden than the one normally imposed in civil cases. Connecticut,
282 U. S., at 669. To meet this burden, Florida
8 The Court concedes that Florida cannot prevail in this case unless it
proves, by clear and convincing evidence, that it would obtain an appreciable
beneft from an equitable apportionment. See ante, at 822 (noting
that the appreciable-beneft test “ `goes to the merits' of the equitable apportionment
inquiry”); ante, at 823 (noting “a remand is necessary to conduct
the equitable-balancing inquiry”); ante, at 840 (noting that Florida
must ultimately prevail in the balance-of-harms test).
Cite as: 585 U. S. 803 (2018) 865
Thomas, J., dissenting
must present enough evidence to leave this Court with an
“abiding conviction that the truth of its factual contentions
are `highly probable' ” and to “instantly til[t] the evidentiary
scales in the affrmative when weighed against the evidence
. . . offered in opposition.” Colorado II, supra, at 316. As
the Special Master found, Florida has not met this burden.
The evidence demonstrates that, if this Court imposed Florida's
proposed cap on Georgia, Florida would not receive an
appreciable amount of additional water during droughts.
And Florida would not beneft from the additional water that
it received during nondroughts.
1
Florida did not demonstrate that, if this Court caps Georgia's
water use, Florida would receive a meaningful amount
of additional water during droughts. For Florida to receive
more water, the Corps must change its current operating
procedures. But the Corps is not a party, and it would not
be bound by any decree issued by this Court. Because Florida
cannot ask this Court to require the Corps to change its
existing operations, it must prove by clear and convincing
evidence that the Corps will voluntarily make the necessary
changes. Florida cannot do so. The United States' representations
in this litigation and the Corps' history and practice
in the Basin all reveal that the Corps will not change
its existing practices, even if this Court caps Georgia's
water use.
Throughout this litigation, the United States has consistently
maintained that the Corps “would not generally expect”
to release more water into Florida during droughts,
even if Florida convinced this Court to cap Georgia's use.
Brief for United States 28; see also United States Post-Trial
Brief 17–18 (“The Corps expects [during drought operations]
that Apalachicola River fows would be very similar with or
without a consumption cap until enough water is stored to
return the system to normal operations”). This is because
866 FLORIDA v. GEORGIA
Thomas, J., dissenting
“[B]asin infow . . . has historically not been the primary factor
in the Corps' decisionmaking process for making additional
releases above 5,000 [cubic feet per second] during
drought operations.” Brief for United States 28. The
Corps' “overriding” priorities during droughts are preserving
enough water “to comply with the [Endangered Species
Act] while avoiding catastrophic depletion of storage and reflling
[its] reservoirs as rapidly as possible.” Id., at 27.
Deviations are made only “as needed to serve congressionally
authorized project purposes” or “in emergency circumstances.”
Ibid. Since a general need to provide more
water to Florida does not fall within either exception, the
additional water that would fow into the Basin would not
translate into additional fows for Florida. See id., at 29.
The United States' representations are consistent with the
Corps' historical practice. During droughts, the amount of
water entering the Basin is almost always insuffcient to
meet the Corps' minimum-fow requirement of 5,000 cubic
feet per second. See Bedient 24–27. Thus, a cap on Georgia
would simply decrease the amount of water that the
Corps must release from storage; it would not increase the
amount of water fowing into the Apalachicola River. Id.,
at 21, 25–26. And once drought operations are triggered,
the Corps limits its releases to around 5,000 cubic feet per
second regardless of the amount of water entering the Basin.
See United States Post-Trial Brief 9; Brief for United States
24–28. Indeed, during past drought operations, even when
Basin infow varied by tens of thousands of cubic feet per
second, the measured fow from the Jim Woodruff Dam into
the Apalachicola River has consistently remained around 5,000
cubic feet per second. See Bedient 23, 62–63.9 Further,
9 It makes no difference whether the additional water generated by a
cap on Georgia would enter the Flint River. Contra, Brief for Plaintiff
26, 38–39. If additional water entered the Flint River during droughts,
the Corps would release less water from its upstream reservoirs on the
Chattahoochee River to maintain a consistent fow of around 5,000 cubic
Cite as: 585 U. S. 803 (2018) 867
Thomas, J., dissenting
the models presented by Georgia's expert showed that, if
Florida's proposed caps had been in place during the drought
years of 2007 and 2012, Florida would not have received appreciable
additional fows when the water was most needed.
Cutting Georgia's use in half would have produced additional
fows for only 14 to 19 days in the summer and fall of 2007,
and would not have produced any additional fows during the
summer or fall of 2012. Id., at 27–30; see also id., at 38
(showing the same for 2011).
Florida argues that the Corps might exercise its discretion
to ensure that additional water reaches Florida during
droughts. Brief for Plaintiff 40–44. But Florida supports
this claim with nothing more than speculation. See Colorado
II, 467 U. S., at 320 (explaining that a State cannot carry
its burden in an equitable-apportionment action except “with
specifc evidence” and that “[m]ere assertions . . . will not
do”). All available evidence suggests that the Corps would
not exercise its discretion to release more water into the Apalachicola
River during droughts.
Before this Court, the United States expressly rejected
Florida's contention that “the Corps is likely to exercise its
authority within existing operational protocols to provide
Florida with additional fows produced by a cap on Georgia's
consumption.” Brief for United States 23. Basin infows, it
explained, simply do not dictate how much water the Corps
releases into the Apalachicola River. Ibid. And the Corps
could not make discretionary releases “that [are] not specifcally
provided for in the [water-control manual], not specifcally
authorized by Congress or mandated by general
statute, [and not] required by a court order directed to the
Corps,” without raising “signifcant and diffcult question[s]”
about whether it had exceeded its authority. Id., at 29.
Florida also suggests that the Corps might amend its
water-control manual in response to an equitable decree from
feet per second from the Jim Woodruff Dam at Lake Seminole. See Bedient
24–26; Brief for United States 24–25.
868 FLORIDA v. GEORGIA
Thomas, J., dissenting
this Court. Florida's only support for this argument is a
statement from the Corps that it will “ `take . . . into account'
” this Court's decision. Brief for Plaintiff 44 (quoting
Record of Decision Adopting Proposed Action Alternative
for Implementation of Updated Apalachicola-Chattahoochee-
Flint River Basin Master Manual 18 (Mar. 30, 2017)). But
this vague statement was not a promise that the Corps will
change its procedures, and there are a host of reasons to
doubt that the Corps would voluntarily change its procedures
just because this Court capped Georgia's use.
For one, the Corps has already tried procedures that
passed more water to Florida during droughts. The results
were dreadful: Reservoir storage plummeted to dangerously
low levels, putting all of the Corps' authorized project purposes
at risk. Zeng 45–46. Since that time, the Corps' operating
protocols have become increasingly protective of reservoir
storage, particularly during droughts. As the Corps
explained, it intends to pursue “ `a more proactive approach
to conserve reservoir storage as drier conditions develop in
the [B]asin' ” because the “[s]torage of water during drought
operations is critically important to retain suffcient water in
the system.” Brief for United States 11.
For another, the last time the Corps attempted to change
its water-control manual, it required more than two decades
of litigation and administrative review to fnalize those
changes. Indeed, the main reason that the United States
chose not to participate in this case is because it wanted “to
avoid being bound by a decree that could directly affect the
Corps, operations before the Corps had a chance to fnally
complete its process of updating the [water-control manual].”
Id., at 32. Given this, there is no reason to think that the
Corps will volunteer to undertake the process of updating
its manual again—especially so soon after it completed this
arduous task.
Florida's speculation is even more suspect in view of the
changes that the Corps would have to make to beneft Florida
during droughts. To even propose a new water-control
Cite as: 585 U. S. 803 (2018) 869
Thomas, J., dissenting
manual, the Corps must “examin[e] . . . the congressionally
authorized purposes,” “determin[e] . . . how providing additional
fows will impact those purposes [and] other laws,” and
“supplemen[t] documentation of environmental impacts as
required by [the National Environmental Policy Act].” Id.,
at 31. Providing more water to Florida does not help the
Corps satisfy any of these legal requirements. It is not one
of the congressionally authorized purposes, see id., at 29, 31–
32, and, by dropping its lawsuit against the Corps, Florida
now accepts that a minimum fow of 5,000 cubic feet per second
is suffcient to comply with the Endangered Species Act.
Florida cannot claim that the law requires the Corps to provide
it with more water. And the idea that the Corps will
change its operating protocols to serve an unauthorized purpose
when doing so could jeopardize its authorized purposes
is simply not plausible.
Taking a different tack, the Court suggests that additional
water will pass through to Florida even if the Corps does
not change its manual. Specifcally, the Court concludes
that the additional water will pass through to Florida during
droughts so long as the Corps does not enter drought operations.
See ante, at 829–831. According to the Court, the
Corps will allow additional water to pass through to Florida
whenever the natural fow of the Apalachicola River is between
5,000 and 10,000 cubic feet per second during normal
or “nondrought” operations. See ante, at 829–830.
The Court's conclusion depends on the premise that, during
droughts, the natural streamfow into Florida is “between
5,000 and 10,000” cubic feet per second. Ibid. That
premise is false.10 During droughts, the natural streamfow
10 The Court contends that I have confused “droughts” and “drought
operations.” See ante, at 833–834. I have not, but the Court has. During
droughts—periods in which there is a “lack of rain,” 4 Oxford English
Dictionary 1076 (2d ed. 1989)—the amount of water that naturally fows
into the Basin rivers usually falls below 5,000 cubic feet per second, particularly
in the summer and fall months. See infra, at 871–873. Since the
Corps must ensure that the Apalachicola River always receives at least
870 FLORIDA v. GEORGIA
Thomas, J., dissenting
in the Apalachicola River is usually less than 5,000 cubic feet
per second. Supra, at 866; see also Bedient 23 (showing that
Basin infow in 2012 was generally below 5,000 cubic feet per
second between June and December); id., at 27 (same for
2007). To maintain a minimum fow of 5,000 cubic feet per
second during droughts, the Corps must artifcially augment
the River's natural fow—even when the Corps is in nondrought
operations. Id., at 21.11 For instance, during the
2011 drought (when the Corps was in nondrought operations),
“Basin Infow was below 5,000 [cubic feet per second]
for most of th[e] period [between June and December], and
the Corps was `augmenting' streamfow by releasing water
5,000 cubic feet per second, the Corps augments the natural streamfow
during droughts—even when the Corps is not in drought operations. Bedient
21. Thus, any additional water that a cap on Georgia generates
during droughts would only increase streamfow into the Apalachicola
River if it caused the natural streamfow to exceed 5,000 cubic feet per
second. If the additional water increased streamfow to some amount less
than that, then it would not increase fows in the Apalachicola River; it
would simply decrease the amount of water that the Corps must release
from its reservoirs. See ibid. Thus, as Georgia's expert explained, “reducing
Georgia's consumptive use would only lead to additional . . . fow
into Florida under specifc and limited circumstances. First, the Corps
cannot be in Drought Operations or [Extreme Drought Operations]. Second,
Basin Infow cannot be below 5,000 [cubic feet per second], even if
the Corps is in normal operations.” Id., at 26 (emphasis added).
11 The Court contends that additional water from a cap on Georgia likely
would have passed through to Florida in the summer of 2009. See ante,
at 830–831. But this evidence is irrelevant. As Florida's own expert testifed,
“[t]he year 2009 was a relatively wet year.” Hornberger 49; accord,
Bedient 45. And Florida has only asked this Court to reduce Georgia's
consumption by 1,500 to 2,000 cubic feet per second during “severe
drought years,” which 2009 was not. Hornberger 58.
The Court also contends that additional water from a cap on Georgia
likely would have passed through to Florida in the summers of 2016 and
2017. See ante, at 830–831, 836. The Court's data was generated simultaneously
with or after most of the testimony in this case, so the experts
do not speak to it. But even considering the data that the Court has
found, I suspect that 2016 and 2017 are not “severe drought years” either
and, thus, are irrelevant.
Cite as: 585 U. S. 803 (2018) 871
Thomas, J., dissenting
from the reservoirs to satisfy the 5,000 [cubic feet per second]
minimum.” Id., at 15; see also id., at 27 (same for 2007).
Once the Corps adds enough water to reach 5,000 cubic feet
per second, however, it generally adds no more than that.
Id., at 21. To give a concrete example, if the natural fows
in the Apalachicola River were 2,600 cubic feet per second,
then the Corps would release 2,400 cubic feet per second
from its reservoirs. See id., at 25–26. And if a cap on
Georgia increased the River's natural fow to 4,100 cubic feet
per second, the Corps would release 900 cubic feet per second.
See ibid. In either case, the total fow on the Apalachicola
River would remain the same: 5,000 cubic feet per
second. Thus, so long as the natural fows remain signifcantly
less than 5,000 cubic feet per second, a cap on Georgia
would only decrease the amount of water that the Corps releases
from storage; it would not increase the overall amount
of water fowing into the Apalachicola River.
For this reason, even when the Corps is in nondrought
operations, a cap on Georgia would generally not increase
fows to Florida. Georgia's expert proved that fact with evidence
about past droughts where drought operations were
not in effect. Using data from the 2007 drought, Georgia's
expert concluded that the additional water from a cap on
Georgia would be passed through to Florida almost entirely
during the winter and spring months “when water in the
[Basin] would be relatively plentiful.” Id., at 28. Florida
would receive the additional water from a cap on Georgia
only 19 days “during the summer and fall months, when
streamfow was at its lowest.” Ibid.; accord, id., at 40.
Data from the 2011 drought showed similar results. See id.,
at 37 (“[During] dry years (e. g., 2007 and 2011), . . . even
signifcant changes in Georgia's consumptive use would lead
to virtually no change in state-line fows during the low-fow
months (e. g., June, July, August, September)”).12 Florida
12 The Court claims that “Florida's proposed consumption cap . . . will
mean (consistent with the testimony of the very Georgia expert that the
dissent so frequently quotes) that there will be signifcantly fewer such
872 FLORIDA v. GEORGIA
Thomas, J., dissenting
has not shown that these infrequent and sporadic additional
fows during droughts would appreciably beneft it.13
The Court hypothesizes that a cap on Georgia could beneft
Florida by decreasing the length of drought operations and
by increasing the number of days that the Corps can meet
its minimum-fow requirements of 5,000 cubic feet per second
(during normal drought operations) and 4,500 cubic feet per
second (during extreme drought operations). Ante, at 828,
831–833. The Court cites the United States' assertion in its
brief that increased Basin infows “ `would generally beneft
the [Basin] system by delaying the onset of drought operations,
by allowing the Corps to meet the 5000 [cubic feet per
second] minimum fow longer during extended drought,
and by quickening the resumption of normal operations.' ”
Ante, at 828 (quoting Brief for United States 28); see also
ante, at 832 (quoting a similar statement in the United States
Post-Trial Brief 18–19). Of course, statements in briefs are
not evidence. And, as the United States recognizes in the
very next sentence, Florida would have to show that these
“benefts are of suffcient quantity to justify relief in this
case.” Brief for United States as Amicus Curiae 28 (Aug.
7, 2017); see also United States Post-Trial Brief 19 (Dec. 15,
2016) (taking “no position on whether Florida has proven
that a consumption cap would produce enough additional
[B]asin infow at the right times to redress Florida's alleged
harm and justify the cost of imposing a consumption cap”).
days [of drought operations].” Ante, at 834. I assume that the “Georgia
expert” in this sentence is Dr. Philip Bedient. But I am aware of no
testimony from Dr. Bedient that supports the Court's assertion, and the
Court cites none.
13 If the Corps had been in drought operations, the results would not
have differed much, demonstrating that whether the Corps is in drought
or nondrought operations is not dispositive. Had the Corps been in
drought operations during 2007, for instance, Florida would have received
the additional water from a cap on Georgia during 14 days in the summer
and fall—a difference of only fve days as compared to nondrought operations.
Bedient 28.
Cite as: 585 U. S. 803 (2018) 873
Thomas, J., dissenting
Florida offered no proof that a cap on Georgia would
produce any appreciable beneft of this kind. And the evidence
presented at trial suggests that these proposed benefts
are wholly speculative. As explained above, the benefts
to Florida from a cap on Georgia do not meaningfully change,
regardless of whether the Corps enters drought operations.
And there is no evidence that the Corps has had trouble
meeting its minimum-flow requirements during recent
droughts, when Georgia's use remained uncapped. Even
during the severe droughts of 2011 and 2012, the Corps consistently
maintained fows of 5,000 cubic feet per second,
never entered extreme drought operations, and never reduced
fows on the Apalachicola River to 4,500 cubic feet per
second. See Bedient 14. And the Corps is even more unlikely
to run out of water during future droughts, given that
its current manual is more proactive in conserving water
during droughts. See Brief for United States 11–12.
In sum, Florida has not shown that it is “ `highly probable'
” that a cap on Georgia will result in meaningful additional
fows in the Apalachicola River during droughts.
Colorado II, 467 U. S., at 316. It is thus not entitled to an
equitable apportionment on this basis.
2
Because Florida will not receive additional water during
droughts, it argues that it will beneft from additional water
during nondroughts. As the Special Master correctly found,
however, Florida presented no evidence to support such an
assertion. That is because no such evidence exists. Florida
would not beneft from additional water during nondroughts,
because fows on the Apalachicola River during
nondroughts are already plentiful.
The Court does not contend that Florida would beneft
from additional water during nondroughts, and Florida all
but conceded the point below. When framing its case before
the Special Master, Florida requested only that the Court
874 FLORIDA v. GEORGIA
Thomas, J., dissenting
order Georgia to reduce its water use during droughts; Florida
did not ask the Court to reduce Georgia's current water
use during nondroughts. See Florida Pre-trial Brief 5;
Hornberger 58. Consistent with this request, Florida's evidence
focused exclusively on the harms that it suffered
during droughts. Florida's hydrology expert testifed extensively
about droughts. See id., at 2–3, 15–26, 41–46, 49–
50. He testifed that the Basin usually receives “a rather
good amount of rainfall,” so “major problems arise” only during
“the low rainfall years.” Id., at 13. That is why he limited
his testimony to the “impacts of [Georgia's] consumption
during drought.” Id., at 15; see also id., at 20–22.
Florida's other experts followed this drought-centric approach.
For instance, one of Florida's experts on the harm
to Florida's oysters connected that harm to “severe
drought,” which “reduced the discharge of fresh water from
the Apalachicola River.” Updated PFDT of David Kimbro
14. Florida's expert on the harm to sturgeon, mussels, and
tupelo trees in the Apalachicola River similarly emphasized
“dry periods of episodically dry years.” Allan 17; see also
id., at 25–27 (emphasizing the effects of sustained fows
below 6,000 cubic feet per second). As one Florida expert
put it, “[t]he discussions that [he] had, especially with the
biologists and the hydrologists, were largely almost exclusively
focused on dry years” and he “c[ould]n't think of any”
“issues [that] other experts raised about average or wet-year
problems.” 11 Trial Tr. 2811.
The other evidence presented at trial leaves little doubt
that Florida would not beneft from additional water during
nondroughts. For starters, when the Basin is not experiencing
a drought, water is plentiful. Florida's expert testifed
that “[a]verage rainfall in the portion of the . . . Basin
above [Lake Seminole] is 51.5 inches per year, a rather good
amount of rainfall.” Hornberger 13. As a result, average
monthly fows in the Apalachicola River are nearly 20,000
cubic feet per second. Direct Testimony of Sorab Panday
30 (Panday). More than 95% of the time, Apalachicola River
Cite as: 585 U. S. 803 (2018) 875
Thomas, J., dissenting
fows exceed 6,000 cubic feet per second. Brief for United
States 12. And it is not unusual for fows in the Apalachicola
River to exceed 50,000 cubic feet per second in the wetter
months. See Panday 30. Even during drought years,
fows in nonsummer months are relatively high. For instance,
in the severe drought year of 2012, fow in the late
winter and early spring regularly exceeded 10,000 cubic feet
per second. See Bedient 29.
Almost all of the additional water generated by a cap on
Georgia would reach Florida during these high fow periods,
when it would provide no beneft to Florida. See id., at 27–
30. Take, for instance, the oysters in Apalachicola Bay—the
only harm to Florida that the Special Master found in this
case. See Report 31–32. Florida's own experts testifed
that, even if Georgia cut its agricultural water use in half
during droughts, the resulting increase in Apalachicola River
fows would have a negligible effect during nondroughts.
During years of normal rainfall and the wetter months of
drought years, the effect of additional fows on the Bay's salinity
is less than one part per thousand. See 7 Trial Tr.
1768–1775. This immeasurable effect on the Bay's salinity
would have no appreciable impact on oyster biomass. See
White 50–51 (showing a less than 0.6% impact on oyster biomass,
except in drier months and drought years).
Assuming Florida's claims of harm to mussels, sturgeon,
and tupelo trees have merit—something the Special Master
never found—the harm to those species also would not be
remedied by increased fows during nondroughts. Florida's
expert on these species opined that signifcant harm to mussels
occurs when fows drop below a threshold of 6,000 cubic
feet per second for more than seven consecutive days between
June 1 and September 30, Allan 33; that signifcant
harm to sturgeons occurs when fows drop below a threshold
of 7,000 cubic feet per second for more than 60 total days
between May 1 and September 30, id., at 41; and that signifcant
harm to tupelo trees occurs when fows drop below a
threshold of 14,100 cubic feet per second for more than 90
876 FLORIDA v. GEORGIA
Thomas, J., dissenting
consecutive days between March 20 and September 22, id.,
at 33, 41, 44–45. Accepting these statements as true, passing
more water through to Florida during nondroughts
would not do these species any good. All would still suffer
the same harms during the summers of drought years when
fows remain fxed at 5,000 cubic feet per second because of
the Corps' operations.
If we contrast the de minimis benefts that Florida might
receive from small amounts of additional water during nondroughts
with the massive harms that Georgia would suffer
if this Court cut its water use in half during droughts, it
is clear who should prevail in this case. Florida's expert
estimated that a cap on Georgia would have an “[i]ncremental
[f]iscal [c]ost” of $35.2 million per year. Sunding 44.
This fgure included only additional costs that would require
“the [Georgia] legislature . . . to appropriate money.” 11
Trial Tr. 2791. The real cost of such a cap, which includes
nongovernmental costs like welfare losses, would range anywhere
from $191 million, id., at 2787; Stavins 31, to more
than $2 billion per year, id., at 2. And the cap would trigger
resulting losses in Georgia's gross regional product and employment,
totaling around $322 million and 4,173 jobs annually.
Id., at 40. Regardless of the measure used, this harm
dwarfs the value of Florida's entire fshing industry in Apalachicola
Bay, which produces annual revenues of $11.7
million. Id., at 16. And it greatly outweighs the value of
the additional oysters that a cap on Georgia's use might
produce—i. e., no more than a few hundred thousand dollars.
Id., at 52. Imposing an enormously high cost on one State
so that another State can achieve a hollow victory is “not the
high equity that moves the conscience of the court in giving
judgment between states.” Washington, 297 U. S., at 523.
* * *
In the fnal analysis, Florida has not shown that it will
appreciably beneft from a cap on Georgia's water use. AbCite
as: 585 U. S. 803 (2018) 877
Thomas, J., dissenting
sent such a showing, the balance of harms cannot tip in
Florida's favor. Accordingly, I would have overruled Florida's
objections to the Special Master's Report and denied
Florida's request for relief. I respectfully dissent.
878 OCTOBER TERM, 2017
Syllabus
JANUS v. AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES,
COUNCIL 31, et al.
certiorari to the united states court of appeals for
the seventh circuit
No. 16–1466. Argued February 26, 2018—Decided June 27, 2018
Illinois law permits public employees to unionize. If a majority of the
employees in a bargaining unit vote to be represented by a union, that
union is designated as the exclusive representative of all the employees,
even those who do not join. Only the union may engage in collective
bargaining; individual employees may not be represented by another
agent or negotiate directly with their employer. Nonmembers are required
to pay what is generally called an “agency fee,” i. e., a percentage
of the full union dues. Under Abood v. Detroit Bd. of Ed., 431 U. S.
209, 235–236, this fee may cover union expenditures attributable to
those activities “germane” to the union's collective-bargaining activities
(chargeable expenditures), but may not cover the union's political and
ideological projects (nonchargeable expenditures). The union sets the
agency fee annually and then sends nonmembers a notice explaining the
basis for the fee and the breakdown of expenditures. Here, it was
78.06% of full union dues.
Petitioner Mark Janus is a state employee whose unit is represented
by a public-sector union (Union), one of the respondents. He refused
to join the Union because he opposes many of its positions, including
those taken in collective bargaining. Illinois' Governor, similarly opposed
to many of these positions, fled suit challenging the constitutionality
of the state law authorizing agency fees. The state attorney
general, another respondent, intervened to defend the law, while Janus
moved to intervene on the Governor's side. The District Court dismissed
the Governor's challenge for lack of standing, but it simultaneously
allowed Janus to fle his own complaint challenging the constitutionality
of agency fees. The District Court granted respondents'
motion to dismiss on the ground that the claim was foreclosed by Abood.
The Seventh Circuit affrmed.
Held:
1. The District Court had jurisdiction over petitioner's suit. Petitioner
was undisputedly injured in fact by Illinois' agency-fee scheme
and his injuries can be redressed by a favorable court decision. For
jurisdictional purposes, the court permissibly treated his amended comCite
as: 585 U. S. 878 (2018) 879
Syllabus
plaint in intervention as the operative complaint in a new lawsuit.
United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S.
157, distinguished. Pp. 890–891.
2. The State's extraction of agency fees from nonconsenting
public-sector employees violates the First Amendment. Abood erred
in concluding otherwise, and stare decisis cannot support it. Abood is
therefore overruled. Pp. 891–929.
(a) Abood's holding is inconsistent with standard First Amendment
principles. Pp. 891–901.
(1) Forcing free and independent individuals to endorse ideas
they find objectionable raises serious First Amendment concerns.
E. g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633. That
includes compelling a person to subsidize the speech of other private
speakers. E. g., Knox v. Service Employees, 567 U. S. 298, 309. In
Knox and Harris v. Quinn, 573 U. S. 616, the Court applied an “exacting”
scrutiny standard in judging the constitutionality of agency fees
rather than the more traditional strict scrutiny. Even under the more
permissive standard, Illinois' scheme cannot survive. Pp. 891–895.
(2) Neither of Abood's two justifcations for agency fees passes
muster under this standard. First, agency fees cannot be upheld on
the ground that they promote an interest in “labor peace.” The Abood
Court's fears of confict and disruption if employees were represented
by more than one union have proved to be unfounded: Exclusive representation
of all the employees in a unit and the exaction of agency fees
are not inextricably linked. To the contrary, in the Federal Government
and the 28 States with laws prohibiting agency fees, millions of
public employees are represented by unions that effectively serve as the
exclusive representatives of all the employees. Whatever may have
been the case 41 years ago when Abood was decided, it is thus now
undeniable that “labor peace” can readily be achieved through less restrictive
means than the assessment of agency fees.
Second, avoiding “the risk of `free riders,' ” Abood, supra, at 224, is
not a compelling state interest. Free-rider “arguments . . . are generally
insufficient to overcome First Amendment objections, ” Knox,
supra, at 311, and the statutory requirement that unions represent
members and nonmembers alike does not justify different treatment.
As is evident in non-agency-fee jurisdictions, unions are quite willing to
represent nonmembers in the absence of agency fees. And their duty
of fair representation is a necessary concomitant of the authority that a
union seeks when it chooses to be the exclusive representative. In any
event, States can avoid free riders through less restrictive means than
the imposition of agency fees. Pp. 895–901.
880 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Syllabus
(b) Respondents' alternative justifcations for Abood are similarly
unavailing. Pp. 901–909.
(1) The Union claims that Abood is supported by the First
Amendment's original meaning. But neither founding-era evidence nor
dictum in Connick v. Myers, 461 U. S. 138, 143, supports the view that
the First Amendment was originally understood to allow States to force
public employees to subsidize a private third party. If anything, the
opposite is true. Pp. 902–905.
(2) Nor does Pickering v. Board of Ed. of Township High School
Dist. 205, Will Cty., 391 U. S. 563, provide a basis for Abood. Abood
was not based on Pickering, and for good reasons. First, Pickering's
framework was developed for use in cases involving “one employee's
speech and its impact on that employee's public responsibilities,” United
States v. Treasury Employees, 513 U. S. 454, 467, while Abood and other
agency-fee cases involve a blanket requirement that all employees subsidize
private speech with which they may not agree. Second, Pickering's
framework was designed to determine whether a public employee's
speech interferes with the effective operation of a government offce,
not what happens when the government compels speech or speech subsidies
in support of third parties. Third, the categorization schemes of
Pickering and Abood do not line up. For example, under Abood, nonmembers
cannot be charged for speech that concerns political or ideological
issues; but under Pickering, an employee's free speech interests on
such issues could be overcome if outweighed by the employer's interests.
Pp. 905–909.
(c) Even under some form of Picker ing, Illinois' agency-fee
arrangement would not survive. Pp. 909–916.
(1) Respondents compare union speech in collective bargaining
and grievance proceedings to speech “pursuant to [an employee's] offcial
duties,” Garcetti v. Ceballos, 547 U. S. 410, 421, which the State may
require of its employees. But in those situations, the employee's words
are really the words of the employer, whereas here the union is speaking
on behalf of the employees. Garcetti therefore does not apply.
Pp. 909–910.
(2) Nor does the union speech at issue cover only matters of
private concern, which the State may also generally regulate under
Pickering. To the contrary, union speech covers critically important
and public matters such as the State's budget crisis, taxes, and
collective bargaining issues related to education, child welfare, healthcare,
and minority rights. Pp. 910–914.
(3) The government's proffered interests must therefore justify
the heavy burden of agency fees on nonmembers' First Amendment
Cite as: 585 U. S. 878 (2018) 881
Syllabus
interests. They do not. The state interests asserted in Abood—promoting
“labor peace” and avoiding free riders—clearly do not, as
explained earlier. And the new interests asserted in Harris and
here—bargaining with an adequately funded agent and improving the
effciency of the work force—do not suffce either. Experience shows
that unions can be effective even without agency fees. Pp. 914–916.
(d) Stare decisis does not require retention of Abood. An analysis
of several important factors that should be taken into account in deciding
whether to overrule a past decision supports this conclusion.
Pp. 916–929.
(1) Abood was poorly reasoned, and those arguing for retaining
it have recast its reasoning, which further undermines its stare decisis
effect, e. g., Citizens United v. Federal Election Comm'n, 558 U. S. 310,
363. Abood relied on Railway Employees v. Hanson, 351 U. S. 225, and
Machinists v. Street, 367 U. S. 740, both of which involved private-sector
collective-bargaining agreements where the government merely authorized
agency fees. Abood did not appreciate the very different First
Amendment question that arises when a State requires its employees
to pay agency fees. Abood also judged the constitutionality of publicsector
agency fees using Hanson's deferential standard, which is inappropriate
in deciding free speech issues. Nor did Abood take into account
the difference between the effects of agency fees in public- and
private-sector collective bargaining, anticipate administrative problems
with classifying union expenses as chargeable or nonchargeable, foresee
practical problems faced by nonmembers wishing to challenge those decisions,
or understand the inherently political nature of public-sector
bargaining. Pp. 917–921.
(2) Abood's lack of workability also weighs against it. Its line
between chargeable and nonchargeable expenditures has proved to be
impossible to draw with precision, as even respondents recognize. See,
e. g., Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 519. What is more,
a nonmember objecting to union chargeability determinations will have
much trouble determining the accuracy of the union's reported expenditures,
which are often expressed in extremely broad and vague terms.
Pp. 921–924.
(3) Developments since Abood, both factual and legal, have
“eroded” the decision's “underpinnings” and left it an outlier among the
Court's First Amendment cases. United States v. Gaudin, 515 U. S. 506,
521. Abood relied on an assumption that “the principle of exclusive representation
in the public sector is dependent on a union or agency shop,”
Harris, 573 U. S., at 638, but experience has shown otherwise. It was
also decided when public-sector unionism was a relatively new phe882
JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Syllabus
nomenon. Today, however, public-sector union membership has surpassed
that in the private sector, and that ascendency corresponds with
a parallel increase in public spending. Abood is also an anomaly in the
Court's First Amendment jurisprudence, where exacting scrutiny, if not
a more demanding standard, generally applies. Overruling Abood will
also end the oddity of allowing public employers to compel union support
(which is not supported by any tradition) but not to compel party support
(which is supported by tradition), see, e. g., Elrod v. Burns, 427
U. S. 347. Pp. 924–926.
(4) Reliance on Abood does not carry decisive weight. The uncertain
status of Abood, known to unions for years; the lack of clarity it
provides; the short-term nature of collective-bargaining agreements;
and the ability of unions to protect themselves if an agency-fee provision
was crucial to its bargain undermine the force of reliance. Pp. 926–929.
3. For these reasons, States and public-sector unions may no longer
extract agency fees from nonconsenting employees. The First Amendment
is violated when money is taken from nonconsenting employees
for a public-sector union; employees must choose to support the union
before anything is taken from them. Accordingly, neither an agency
fee nor any other form of payment to a public-sector union may be deducted
from an employee, nor may any other attempt be made to collect
such a payment, unless the employee affrmatively consents to pay.
Pp. 929–930.
851 F. 3d 746, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Thomas, and Gorsuch, JJ., joined. Sotomayor, J., fled
a dissenting opinion, post, p. 930. Kagan, J., fled a dissenting opinion, in
which Ginsburg, Breyer, and Sotomayor, JJ., joined, post, p. 931.
William L. Messenger argued the cause for petitioner.
With him on the briefs were Aaron B. Solem, Dan K. Webb,
Joseph J. Torres, Jacob H. Huebert, and Jeffrey M. Schwab.
Solicitor General Francisco argued the cause for the
United States as amicus curiae urging reversal. With him
on the brief were Deputy Solicitor General Wall, Nicholas
C. Geale, and Arthur F. Rosenfeld.
David L. Franklin, Solicitor General of Illinois, argued
the cause for state respondents. With him on the brief were
Lisa Madigan, Attorney General, pro se, Brett E. Legner,
Deputy Solicitor General, and Frank H. Bieszczat, Jane
Cite as: 585 U. S. 878 (2018) 883
Counsel
Flanagan, Sarah A. Hunger, Richard S. Huszagh, Lindsay
Beyer Payne, and Andrew Tonelli, Assistant Attorneys
General.
David C. Frederick argued the cause for respondent
AFSCME Council 31. With him on the brief were Derek T.
Ho, John M. West, Judith E. Rivlin, and Teague P. Paterson.*
*Briefs of amici curiae urging reversal were fled for the State of Michigan
et al. by Bill Schuette, Attorney General of Michigan, Aaron D. Lindstrom,
Solicitor General, and Kathryn M. Dalzell, Assistant Solicitor General,
and by the Attorneys General for their respective States as follows:
Steve Marshall of Alabama, Mark Brnovich of Arizona, Leslie Rutledge
of Arkansas, Pamela Jo Bondi of Florida, Christopher M. Carr of Georgia,
Lawrence G. Wasden of Idaho, Curtis T. Hill, Jr., of Indiana, Derek
Schmidt of Kansas, Jeff Landry of Louisiana, Joshua D. Hawley of Missouri,
Douglas J. Peterson of Nebraska, Adam Paul Laxalt of Nevada,
Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Herbert H.
Slatery III of Tennessee, Ken Paxton of Texas, Sean D. Reyes of Utah,
Patrick Morrisey of West Virginia, and Brad Schimel of Wisconsin; for
the American Center for Law and Justice by Jay Alan Sekulow, Stuart J.
Roth, Colby M. May, and Walter M. Weber; for the Atlantic Legal Foundation
by Martin S. Kaufman; for the Becket Fund for Religious Liberty
by Eric Baxter, Eric Rassbach, Adèle Auxier Keim, and Joseph C. Davis;
for the Buckeye Institute for Public Policy Solutions et al. by John J. Park,
Jr., Robert Alt, and Kimberly S. Hermann; for California Public-School
Teachers by Michael A. Carvin, Anthony J. Dick, William D. Coglianese,
Terence J. Pell, and Michael E. Rosman; for the Cato Institute et al. by
Ilya Shapiro, Karen R. Harned, and Luke Wake; for the Center for Constitutional
Jurisprudence by John C. Eastman and Anthony T. Caso; for the
Center on National Labor Policy, Inc., et al. by Michael E. Avakian, Michael
J. Lotito, and Brendan J. Fitzgerald; for the Competitive Enterprise
Institute by Andrew M. Grossman, Randal J. Meyer, and Sam Kazman;
for Employees of the State of Minnesota Court System by J. Michael
Connolly and Thomas R. McCarthy; for the Freedom Foundation et al.
by James G. Abernathy; for the James Madison Center for Free Speech
by James Bopp, Jr., and Richard E. Coleson; for the James Madison Institute
by Joshua M. Hawkes and Joseph W. Jacquot; for the Landmark
Legal Foundation by Richard P. Hutchison; for the Mackinac Center for
Public Policy by Patrick J. Wright; for the Pacifc Legal Foundation et al.
by Deborah J. La Fetra; for The Rutherford Institute by D. Alicia Hickok
and John W. Whitehead; for the 1851 Center for Constitutional Law by
Christopher P. Finney; for Jason R. Barclay et al. by David L. Applegate;
884 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Opinion of the Court
Justice Alito delivered the opinion of the Court.
Under Illinois law, public employees are forced to subsidize
a union, even if they choose not to join and strongly
for Rebecca Friedrichs et al. by James G. Abernathy and David M. S.
Dewhirst; for Gregory J. Hartnett et al. by Nathan J. McGrath; and for
Jane Ladley et al. by Mr. McGrath.
Briefs of amici curiae urging affrmance were fled for the State of
California by Xavier Becerra, Attorney General of California, Edward C.
DuMont, Solicitor General, Thomas S. Patterson, Senior Assistant Attorney
General, Aimee Feinberg and Samuel P. Siegel, Deputy Solicitors General,
and Alexandra Robert Gordon, Deputy Attorney General; for the
State of New York et al. by Eric T. Schneiderman, Attorney General of
New York, Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta,
Deputy Solicitor General, and Philip V. Tisne, Assistant Solicitor General,
and by the Attorneys General of their respective jurisdictions as follows:
Jahna Lindemuth of Alaska, George Jepsen of Connecticut, Matthew
P. Denn of Delaware, Karl A. Racine of the District of Columbia, Douglas
S. Chin of Hawaii, Thomas J. Miller of Iowa, Andy Beshear of Kentucky,
Janet T. Mills of Maine, Brian E. Frosh of Maryland, Maura Healey of
Massachusetts, Lori Swanson of Minnesota, Gurbir S. Grewal of New
Jersey, Hector H. Balderas of New Mexico, Josh Stein of North Carolina,
Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F.
Kilmartin of Rhode Island, Thomas J. Donovan, Jr., of Vermont, Mark
R. Herring of Virginia, and Robert W. Ferguson of Washington; for the
City of New York by Zachary W. Carter and Richard Dearing; for the
American Civil Liberties Union by David D. Cole and Amanda W. Shanor;
for the American Federation of Government Employees by Jeffrey A.
Lamken, Michael G. Pattillo, Jr., Eric R. Nitz, Justin B. Weiner, David
A. Borer, and Andres M. Grajales; for the American Federation of Labor
and Congress of Industrial Organizations by Lynn K. Rhinehart, Harold
C. Becker, James B. Coppess, and Matthew J. Ginsburg; for the American
Federation of Teachers by Kevin K. Russell, Erica Oleszczuk Evans,
Rhonda Weingarten, David J. Strom, and Mark Richard; for the Chabot
Las-Positas Faculty Association et al. by Robert J. Bezemek; for Child
Protective Service Workers et al. by J. Carl Cecere; for Constitutional Law
Scholars by Andrew J. Pincus; for Crown Building Maintenance Co. &
Crown Energy Services, Inc., et al. by Michael P. Abate; for Economists
et al. by Dan Jackson; for Faith in Public Life et al. by Eric Alan Isaacson;
for Fifteen Unions et al. by Gregg McLean Adam, Gary M. Messing,
Pamela S. Karlan, Jeffrey L. Fisher, and David T. Goldberg; for the
Human Rights Campaign et al. by Steven E. Fineman, Jason L. LichtCite
as: 585 U. S. 878 (2018) 885
Opinion of the Court
object to the positions the union takes in collective bargaining
and related activities. We conclude that this arrangement
violates the free speech rights of nonmembers by
man, Laura B. Heiman, Sharon McGowan, and Gregory R. Nevins; for
the International Association of Fire Fighters by Thomas A. Woodley and
Megan K. Mechak; for the International Association of Machinists and
Aerospace Workers, AFL–CIO, by Mark Schneider; for the International
Brotherhood of Teamsters by Stephen P. Berzon, Scott A. Kronland, and
Bradley Raymond; for Labor Law Professors et al. by Charlotte Garden;
for the Laborers' International Union of North America by Theodore T.
Green, Lisa W. Pau, and Laurence E. Gold; for Los Angeles County's
Department of Health Services et al. by Nicole G. Berner, Mary C. Wickham,
Salvatore J. Russo, Daniel Rosenthal, and Walter Kamiat; for the
National Conference on Public Employee Retirement Systems by Robert
D. Klausner, Arthur Liou, and Mollie Simons; for the National Education
Association et al. by Alice O'Brien, Jason Walta, Kristen L. Hollar, Risa
L. Lieberwitz, and Aaron Nisenson; for the National Fraternal Order of
Police by Joel A. D'Alba and Larry H. James; for the National Women's
Law Center et al. by Matthew S. Hellman, David A. Strauss, Sarah M.
Konsky, Fatima Goss Graves, Emily J. Martin, Sunu Chandy, Vanita
Gupta, and Michael Zubrensky; for the New York City Municipal Labor
Committee by Alan M. Klinger, David J. Kahne, and Harry Greenberg;
for the New York City Sergeants Benevolent Association by Stephen
P. Younger and Jonathan D. Schenker; for Public Citizen, Inc., by Scott L.
Nelson and Allison M. Zieve; for Republican Current and Former State
and Local Offceholders by Elizabeth B. Wydra, Brianne J. Gorod, and
David H. Gans; for the United States Conference of Catholic Bishops by
Anthony R. Picarello, Jr.; for 24 Past Presidents of the D. C. Bar by John
W. Nields, Jr., and Philip J. Levitz; for Gov. Steve Bullock by Deepak
Gupta and Matthew W. H. Wessler; for Cynthia L. Estlund et al. by Samuel
Estreicher, pro se, and Richard J. Brean; for Eric Garcetti et al. by
Donald B. Verrilli, Jr.; for Rasheedah Gray et al. by Catherine K. Ruckelshaus;
for Benjamin I. Sachs by Joseph M. Sellers; for Eugene Volokh
et al. by Gregory Silbert and Adam B. Banks; for Sen. Sheldon Whitehouse
et al. by Peter Karanjia; and for Gov. Tom Wolfe et al. by Samuel
R. Bagenstos, Denise J. Smyler, Joshua Civin, Matthew Ruyak, and
James R. Williams.
Briefs of amici curiae were fled for Certifed Public Accountants by
Virginia A. Seitz; for Corporate Law Professors by Anna-Rose Mathieson;
and for Charles Fried et al. by Seth P. Waxman, Christopher E. Babbitt,
and Albinas J. Prizgintas.
886 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Opinion of the Court
compelling them to subsidize private speech on matters of
substantial public concern.
We upheld a similar law in Abood v. Detroit Bd. of Ed.,
431 U. S. 209 (1977), and we recognize the importance of following
precedent unless there are strong reasons for not
doing so. But there are very strong reasons in this case.
Fundamental free speech rights are at stake. Abood was
poorly reasoned. It has led to practical problems and abuse.
It is inconsistent with other First Amendment cases and has
been undermined by more recent decisions. Developments
since Abood was handed down have shed new light on the
issue of agency fees, and no reliance interests on the part of
public-sector unions are suffcient to justify the perpetuation
of the free speech violations that Abood has countenanced
for the past 41 years. Abood is therefore overruled.
I
A
Under the Illinois Public Labor Relations Act (IPLRA),
employees of the State and its political subdivisions are permitted
to unionize. See Ill. Comp. Stat., ch. 5, § 315/6(a)
(West 2016). If a majority of the employees in a bargaining
unit vote to be represented by a union, that union is designated
as the exclusive representative of all the employees.
§§ 315/3(s)(1), 315/6(c), 315/9. Employees in the unit are not
obligated to join the union selected by their co-workers, but
whether they join or not, that union is deemed to be their
sole permitted representative. See §§ 315/6(a), (c).
Once a union is so designated, it is vested with broad authority.
Only the union may negotiate with the employer on
matters relating to “pay, wages, hours[,] and other conditions
of employment.” § 315/6(c). And this authority extends to
the negotiation of what the IPLRA calls “policy matters,”
such as merit pay, the size of the work force, layoffs, privatization,
promotion methods, and nondiscrimination policies.
§ 315/4; see § 315/6(c); see generally, e. g., Illinois Dept. of
Cite as: 585 U. S. 878 (2018) 887
Opinion of the Court
Central Management Servs. v. AFSCME, Council 31, No. S–
CB–16–017 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (Board
Decision).
Designating a union as the employees' exclusive representative
substantially restricts the rights of individual employees.
Among other things, this designation means that
individual employees may not be represented by any agent
other than the designated union; nor may individual employees
negotiate directly with their employer. §§ 315/6(c)–(d),
315/10(a)(4); see Matthews v. Chicago Transit Authority,
2016 IL 117638, 51 N. E. 3d 753, 782; accord, Medo Photo
Supply Corp. v. NLRB, 321 U. S. 678, 683–684 (1944). Protection
of the employees' interests is placed in the hands of
the union, and therefore the union is required by law to provide
fair representation for all employees in the unit, members
and nonmembers alike. § 315/6(d).
Employees who decline to join the union are not assessed
full union dues but must instead pay what is generally called
an “agency fee,” which amounts to a percentage of the union
dues. Under Abood, nonmembers may be charged for the
portion of union dues attributable to activities that are “germane
to [the union's] duties as collective-bargaining representative,”
but nonmembers may not be required to fund the
union's political and ideological projects. 431 U. S., at 235;
see id., at 235–236. In labor-law parlance, the outlays in the
frst category are known as “chargeable” expenditures, while
those in the latter are labeled “nonchargeable.”
Illinois law does not specify in detail which expenditures
are chargeable and which are not. The IPLRA provides
that an agency fee may compensate a union for the costs
incurred in “the collective bargaining process, contract administration[,]
and pursuing matters affecting wages,
hours[,] and conditions of employment.” § 315/6(e); see also
§ 315/3(g). Excluded from the agency-fee calculation are
union expenditures “related to the election or support of any
candidate for political offce.” § 315/3(g); see § 315/6(e).
888 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Opinion of the Court
Applying this standard, a union categorizes its expenditures
as chargeable or nonchargeable and thus determines a
nonmember's “proportionate share,” § 315/6(e); this determination
is then audited; the amount of the “proportionate
share” is certifed to the employer; and the employer automatically
deducts that amount from the nonmembers' wages.
See ibid.; App. to Pet. for Cert. 37a; see also Harris v.
Quinn, 573 U. S. 616, 636–638 (2014) (describing this process).
Nonmembers need not be asked, and they are not required
to consent before the fees are deducted.
After the amount of the agency fee is fxed each year, the
union must send nonmembers what is known as a Hudson
notice. See Teachers v. Hudson, 475 U. S. 292 (1986). This
notice is supposed to provide nonmembers with “an adequate
explanation of the basis for the [agency] fee.” Id., at 310.
If nonmembers “suspect that a union has improperly put
certain expenses in the [chargeable] category,” they may
challenge that determination. Harris, supra, at 637.
As illustrated by the record in this case, unions charge
nonmembers, not just for the cost of collective bargaining
per se, but also for many other supposedly connected activities.
See App. to Pet. for Cert. 28a–39a. Here, the nonmembers
were told that they had to pay for “[l]obbying,”
“[s]ocial and recreational activities,” “advertising,” “[m]embership
meetings and conventions,” and “litigation,” as well
as other unspecifed “[s]ervices” that “may ultimately inure
to the beneft of the members of the local bargaining unit.”
Id., at 28a–32a. The total chargeable amount for nonmembers
was 78.06% of full union dues. Id., at 34a.
B
Petitioner Mark Janus is employed by the Illinois Department
of Healthcare and Family Services as a child support
specialist. Id., at 10a. The employees in his unit are
among the 35,000 public employees in Illinois who are represented
by respondent American Federation of State, County,
and Municipal Employees, Council 31 (Union). Ibid. Janus
Cite as: 585 U. S. 878 (2018) 889
Opinion of the Court
refused to join the Union because he opposes “many of the
public policy positions that [it] advocates,” including the positions
it takes in collective bargaining. Id., at 10a, 18a.
Janus believes that the Union's “behavior in bargaining does
not appreciate the current fscal crises in Illinois and does
not refect his best interests or the interests of Illinois citizens.”
Id., at 18a. Therefore, if he had the choice, he
“would not pay any fees or otherwise subsidize [the Union].”
Ibid. Under his unit's collective-bargaining agreement,
however, he was required to pay an agency fee of $44.58 per
month, id., at 14a—which would amount to about $535 per
year.
Janus's concern about Illinois' current fnancial situation is
shared by the Governor of the State, and it was the Governor
who initially challenged the statute authorizing the imposition
of agency fees. The Governor commenced an action in
federal court, asking that the law be declared unconstitutional,
and the Illinois attorney general (a respondent here)
intervened to defend the law. App. 41. Janus and two
other state employees also moved to intervene—but on the
Governor's side. Id., at 60.
Respondents moved to dismiss the Governor's challenge
for lack of standing, contending that the agency fees did not
cause him any personal injury. E. g., id., at 48–49. The
District Court agreed that the Governor could not maintain
the lawsuit, but it held that petitioner and the other individuals
who had moved to intervene had standing because the
agency fees unquestionably injured them. Accordingly, “in
the interest of judicial economy,” the court dismissed the
Governor as a plaintiff, while simultaneously allowing petitioner
and the other employees to fle their own complaint.
Id., at 112. They did so, and the case proceeded on the basis
of this new complaint.
The amended complaint claims that all “nonmember fee
deductions are coerced political speech” and that “the First
Amendment forbids coercing any money from the nonmembers.”
App. to Pet. for Cert. 23a. Respondents moved to
890 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Opinion of the Court
dismiss the amended complaint, correctly recognizing that
the claim it asserted was foreclosed by Abood. The District
Court granted the motion, id., at 7a, and the Court of Appeals
for the Seventh Circuit affrmed, 851 F. 3d 746 (2017).
Janus then sought review in this Court, asking us to
overrule Abood and hold that public-sector agency-fee
arrangements are unconstitutional. We granted certiorari
to consider this important question. 582 U. S. 966 (2017).
II
Before reaching this question, however, we must consider
a threshold issue. Respondents contend that the District
Court lacked jurisdiction under Article III of the Constitution
because petitioner “moved to intervene in [the Governor's]
jurisdictionally defective lawsuit.” Union Brief in
Opposition 11; see also id., at 13–17; State Brief in Opposition
6; Brief for Union Respondent i, 16–17; Brief for State Respondents
14, n. 1. This argument is clearly wrong.
It rests on the faulty premise that petitioner intervened
in the action brought by the Governor, but that is not what
happened. The District Court did not grant petitioner's
motion to intervene in that lawsuit. Instead, the court essentially
treated petitioner's amended complaint as the operative
complaint in a new lawsuit. App. 110–112. And when
the case is viewed in that way, any Article III issue vanishes.
As the District Court recognized—and as respondents
concede—petitioner was injured in fact by Illinois' agencyfee
scheme, and his injuries can be redressed by a favorable
court decision. Ibid.; see Record 2312–2313, 2322–2323.
Therefore, he clearly has Article III standing. Lujan v. Defenders
of Wildlife, 504 U. S. 555, 560–561 (1992). It is true
that the District Court docketed petitioner's complaint under
the number originally assigned to the Governor's complaint,
instead of giving it a new number of its own. But Article
III jurisdiction does not turn on such trivialities.
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The sole decision on which respondents rely, United States
ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157
(1914), actually works against them. That case concerned a
statute permitting creditors of a government contractor to
bring suit on a bond between 6 and 12 months after the completion
of the work. Id., at 162. One creditor fled suit before
the 6-month starting date, but another intervened
within the 6-to-12-month window. The Court held that
“[t]he intervention [did] not cure th[e] vice in the original
[prematurely fled] suit,” but the Court also contemplated
treating “intervention . . . as an original suit” in a case in
which the intervenor met the requirements that a plaintiff
must satisfy—e. g., fling a separate complaint and properly
serving the defendants. Id., at 163–164. Because that is
what petitioner did here, we may reach the merits of the
question presented.
III
In Abood, the Court upheld the constitutionality of an
agency-shop arrangement like the one now before us, 431
U. S., at 232, but in more recent cases we have recognized
that this holding is “something of an anomaly,” Knox v. Service
Employees, 567 U. S. 298, 311 (2012), and that Abood's
“analysis is questionable on several grounds,” Harris, 573
U. S., at 635; see id., at 635–638 (discussing faws in Abood's
reasoning). We have therefore refused to extend Abood to
situations where it does not squarely control, see Harris,
supra, at 645–647, while leaving for another day the question
whether Abood should be overruled, Harris, supra, at 646,
n. 19, n. 19); see Knox, supra, at 310–311.
We now address that question. We frst consider whether
Abood's holding is consistent with standard First Amendment
principles.
A
The First Amendment, made applicable to the States by
the Fourteenth Amendment, forbids abridgment of the free892
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dom of speech. We have held time and again that freedom
of speech “includes both the right to speak freely and the
right to refrain from speaking at all.” Wooley v. Maynard,
430 U. S. 705, 714 (1977); see Riley v. National Federation
of Blind of N. C., Inc., 487 U. S. 781, 796–797 (1988);
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U. S. 539, 559 (1985); Miami Herald Publishing Co. v. Tornillo,
418 U. S. 241, 256–257 (1974); accord, Pacifc Gas &
Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1, 9 (1986)
(plurality opinion). The right to eschew association for expressive
purposes is likewise protected. Roberts v. United
States Jaycees, 468 U. S. 609, 623 (1984) (“Freedom of association
. . . plainly presupposes a freedom not to associate”);
see Pacifc Gas & Elec., supra, at 12 (“[F]orced associations
that burden protected speech are impermissible”). As
Justice Jackson memorably put it: “If there is any fxed star
in our constitutional constellation, it is that no offcial, high
or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein.” West
Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943)
(emphasis added).
Compelling individuals to mouth support for views they
fnd objectionable violates that cardinal constitutional command,
and in most contexts, any such effort would be universally
condemned. Suppose, for example, that the State of
Illinois required all residents to sign a document expressing
support for a particular set of positions on controversial public
issues—say, the platform of one of the major political parties.
No one, we trust, would seriously argue that the First
Amendment permits this.
Perhaps because such compulsion so plainly violates the
Constitution, most of our free speech cases have involved
restrictions on what can be said, rather than laws compelling
speech. But measures compelling speech are at least as
threatening.
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Free speech serves many ends. It is essential to our democratic
form of government, see, e. g., Garrison v. Louisiana,
379 U. S. 64, 74–75 (1964), and it furthers the search for
truth, see, e. g., Thornhill v. Alabama, 310 U. S. 88, 95 (1940).
Whenever the Federal Government or a State prevents individuals
from saying what they think on important matters
or compels them to voice ideas with which they disagree, it
undermines these ends.
When speech is compelled, however, additional damage is
done. In that situation, individuals are coerced into betraying
their convictions. Forcing free and independent individuals
to endorse ideas they fnd objectionable is always
demeaning, and for this reason, one of our landmark free
speech cases said that a law commanding “involuntary affrmation”
of objected-to beliefs would require “even more
immediate and urgent grounds” than a law demanding
silence. Barnette, supra, at 633; see also Riley, supra, at
796–797 (rejecting “deferential test” for compelled speech
claims).
Compelling a person to subsidize the speech of other private
speakers raises similar First Amendment concerns.
Knox, supra, at 309; United States v. United Foods, Inc.,
533 U. S. 405, 410 (2001); Abood, supra, at 222, 234–235. As
Jefferson famously put it, “to compel a man to furnish contributions
of money for the propagation of opinions which he
disbelieves and abhors is sinful and tyrannical.” A Bill for
Establishing Religious Freedom, in 2 Papers of Thomas
Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote
omitted); see also Hudson, 475 U. S., at 305, n. 15. We
have therefore recognized that a “ `signifcant impingement
on First Amendment rights' ” occurs when public employees
are required to provide fnancial support for a union that
“takes many positions during collective bargaining that have
powerful political and civic consequences.” Knox, supra, at
310–311 (quoting Ellis v. Railway Clerks, 466 U. S. 435, 455
(1984)).
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Because the compelled subsidization of private speech
seriously impinges on First Amendment rights, it cannot be
casually allowed. Our free speech cases have identifed
“levels of scrutiny” to be applied in different contexts, and
in three recent cases, we have considered the standard that
should be used in judging the constitutionality of agency
fees. See Knox, supra; Harris, supra; Friedrichs v. California
Teachers Assn., 578 U. S. 1 (2016) (per curiam) (affrming
decision below by equally divided Court).
In Knox, the frst of these cases, we found it suffcient to
hold that the conduct in question was unconstitutional under
even the test used for the compulsory subsidization of
commercial speech. 567 U. S., at 309–310, 321–322. Even
though commercial speech has been thought to enjoy a lesser
degree of protection, see, e. g., Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 562–
563 (1980), prior precedent in that area, specifcally United
Foods, supra, had applied what we characterized as “exacting”
scrutiny, Knox, 567 U. S., at 310, a less demanding test
than the “strict” scrutiny that might be thought to apply
outside the commercial sphere. Under “exacting” scrutiny,
we noted, a compelled subsidy must “serve a compelling
state interest that cannot be achieved through means signifcantly
less restrictive of associational freedoms.” Ibid.
(internal quotation marks and alterations omitted).
In Harris, the second of these cases, we again found that
an agency-fee requirement failed “exacting scrutiny.” 573
U. S., at 651. But we questioned whether that test provides
suffcient protection for free speech rights, since “it is apparent
that the speech compelled” in agency-fee cases “is not
commercial speech.” Id., at 648.
Picking up that cue, petitioner in the present case contends
that the Illinois law at issue should be subjected to
“strict scrutiny.” Brief for Petitioner 36. The dissent, on
the other hand, proposes that we apply what amounts to
rational-basis review, that is, that we ask only whether a
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government employer could reasonably believe that the exaction
of agency fees serves its interests. See post, at 934
(Kagan, J., dissenting) (“A government entity could reasonably
conclude that such a clause was needed”). This form of
minimal scrutiny is foreign to our free speech jurisprudence,
and we reject it here. At the same time, we again fnd it
unnecessary to decide the issue of strict scrutiny because the
Illinois scheme cannot survive under even the more permissive
standard applied in Knox and Harris.
In the remainder of this part of our opinion (Parts III–B
and III–C), we will apply this standard to the justifcations
for agency fees adopted by the Court in Abood. Then, in
Parts IV and V, we will turn to alternative rationales proffered
by respondents and their amici.
B
In Abood, the main defense of the agency-fee arrangement
was that it served the State's interest in “labor peace,” 431
U. S., at 224. By “labor peace,” the Abood Court meant
avoidance of the confict and disruption that it envisioned
would occur if the employees in a unit were represented by
more than one union. In such a situation, the Court predicted,
“inter-union rivalries” would foster “dissension
within the work force,” and the employer could face “conficting
demands from different unions.” Id., at 220–221.
Confusion would ensue if the employer entered into and attempted
to “enforce two or more agreements specifying different
terms and conditions of employment.” Id., at 220.
And a settlement with one union would be “subject to attack
from [a] rival labor organizatio[n].” Id., at 221.
We assume that “labor peace,” in this sense of the term,
is a compelling state interest, but Abood cited no evidence
that the pandemonium it imagined would result if agency
fees were not allowed, and it is now clear that Abood's fears
were unfounded. The Abood Court assumed that designation
of a union as the exclusive representative of all the em896
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ployees in a unit and the exaction of agency fees are inextricably
linked, but that is simply not true. Harris, supra,
at 649.
The federal employment experience is illustrative. Under
federal law, a union chosen by majority vote is designated as
the exclusive representative of all the employees, but federal
law does not permit agency fees. See 5 U. S. C. §§ 7102,
7111(a), 7114(a). Nevertheless, nearly a million federal employees—
about 27% of the federal work force—are union
members.1 The situation in the Postal Service is similar.
Although permitted to choose an exclusive representative,
Postal Service employees are not required to pay an agency
fee, 39 U. S. C. §§ 1203(a), 1209(c), and about 400,000 are union
members.2 Likewise, millions of public employees in the 28
States that have laws generally prohibiting agency fees
are represented by unions that serve as the exclusive
representatives of all the employees.3 Whatever may have
been the case 41 years ago when Abood was handed down, it
is now undeniable that “labor peace” can readily be achieved
“through means signifcantly less restrictive of associational
freedoms” than the assessment of agency fees. Harris,
supra, at 648–649 (internal quotation marks omitted).
C
In addition to the promotion of “labor peace,” Abood cited
“the risk of `free riders' ” as justifcation for agency fees, 431
U. S., at 224. Respondents and some of their amici endorse
this reasoning, contending that agency fees are needed to
prevent nonmembers from enjoying the benefts of union
1 See Bureau of Labor Statistics (BLS), Labor Force Statistics From
the Current Population Survey (Table 42) (2017), https://www.bls.gov/cps/
tables.htm (all Internet materials as visited June 26, 2018).
2 See Union Membership and Coverage Database From the Current
Population Survey (Jan. 21, 2018), http://www.unionstats.com.
3 See National Conference of State Legislatures, Right-to-Work States
(2018), http://www.ncsl.org/research/labor-and-employment/right-to-worklaws-
and-bills.aspx#chart; see also, e. g., Brief for Mackinac Center for
Public Policy as Amicus Curiae 27–28, 34–36.
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representation without shouldering the costs. Brief for
Union Respondent 34–36; Brief for State Respondents 41–45;
see, e. g., Brief for International Brotherhood of Teamsters
as Amicus Curiae 3–5.
Petitioner strenuously objects to this free-rider label. He
argues that he is not a free rider on a bus headed for a destination
that he wishes to reach but is more like a person
shanghaied for an unwanted voyage.
Whichever description fts the majority of public employees
who would not subsidize a union if given the option,
avoiding free riders is not a compelling interest. As we
have noted, “free-rider arguments . . . are generally insuffcient
to overcome First Amendment objections.” Knox, 567
U. S., at 311. To hold otherwise across the board would
have startling consequences. Many private groups speak
out with the objective of obtaining government action that
will have the effect of benefting nonmembers. May all
those who are thought to beneft from such efforts be compelled
to subsidize this speech?
Suppose that a particular group lobbies or speaks out on
behalf of what it thinks are the needs of senior citizens or
veterans or physicians, to take just a few examples. Could
the government require that all seniors, veterans, or doctors
pay for that service even if they object? It has never been
thought that this is permissible. “[P]rivate speech often
furthers the interests of nonspeakers,” but “that does not
alone empower the state to compel the speech to be paid
for.” Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 556
(1991) (Scalia, J., concurring in judgment in part and dissenting
in part). In simple terms, the First Amendment does
not permit the government to compel a person to pay for
another party's speech just because the government thinks
that the speech furthers the interests of the person who does
not want to pay.4
4 The collective-action problem cited by the dissent, post, at 936, is not
specifc to the agency-fee context. And contrary to the dissent's suggestion,
it is often not practical for an entity that lobbies or advocates on
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Those supporting agency fees contend that the situation
here is different because unions are statutorily required to
“represen[t] the interests of all public employees in the unit,”
whether or not they are union members. § 315/6(d); see,
e. g., Brief for State Respondents 40–41, 45; post, at 936–937
(Kagan, J., dissenting). Why might this matter?
We can think of two possible arguments. It might be argued
that a State has a compelling interest in requiring the
payment of agency fees because (1) unions would otherwise
be unwilling to represent nonmembers or (2) it would be fundamentally
unfair to require unions to provide fair representation
for nonmembers if nonmembers were not required to
pay. Neither of these arguments is sound.
First, it is simply not true that unions will refuse to serve
as the exclusive representative of all employees in the unit if
they are not given agency fees. As noted, unions represent
millions of public employees in jurisdictions that do not permit
agency fees. No union is ever compelled to seek that
designation. On the contrary, designation as exclusive representative
is avidly sought.5 Why is this so?
Even without agency fees, designation as the exclusive
representative confers many benefts. As noted, that status
gives the union a privileged place in negotiations over
wages, benefits, and working conditions. See § 315/6(c).
Not only is the union given the exclusive right to speak for
all the employees in collective bargaining, but the employer
is required by state law to listen to and to bargain in good
behalf of the members of a group to tailor its message so that only its
members beneft from its efforts. Consider how effective it would be for
a group that advocates on behalf of, say, seniors, to argue that a new
measure should apply only to its dues-paying members.
5 In order to obtain that status, a union must petition to be recognized
and campaign to win majority approval. Ill. Comp. Stat., ch. 5, § 315/9(a);
see, e. g., County of Du Page v. Illinois Labor Relations Bd., 231 Ill. 2d
593, 597–600, 900 N. E. 2d 1095, 1098–1099 (2008). And unions eagerly
seek this support. See, e. g., Brief for Employees of State of Minnesota
Court System as Amici Curiae 9–17.
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faith with only that union. § 315/7. Designation as exclusive
representative thus “results in a tremendous increase
in the power” of the union. American Communications
Assn. v. Douds, 339 U. S. 382, 401 (1950).
In addition, a union designated as exclusive representative
is often granted special privileges, such as obtaining information
about employees, see § 315/6(c), and having dues and
fees deducted directly from employee wages, §§ 315/6(e)–(f).
The collective-bargaining agreement in this case guarantees
a long list of additional privileges. See App. 138–143.
These benefts greatly outweigh any extra burden imposed
by the duty of providing fair representation for nonmembers.
What this duty entails, in simple terms, is an obligation not
to “act solely in the interests of [the union's] own members.”
Brief for State Respondents 41; see Cintron v. AFSCME,
Council 31, No. S–CB–16–032, p. 1, 34 PERI ¶105 (ILRB
Dec. 13, 2017) (union may not intentionally direct “animosity”
toward nonmembers based on their “dissident union practices”);
accord, 14 Penn Plaza LLC v. Pyett, 556 U. S. 247,
271 (2009); Vaca v. Sipes, 386 U. S. 171, 177 (1967).
What does this mean when it comes to the negotiation
of a contract? The union may not negotiate a collectivebargaining
agreement that discriminates against nonmembers,
see Steele v. Louisville & Nashville R. Co., 323 U. S.
192, 202–203 (1944), but the union's bargaining latitude would
be little different if state law simply prohibited public employers
from entering into agreements that discriminate in
that way. And for that matter, it is questionable whether
the Constitution would permit a public-sector employer to
adopt a collective-bargaining agreement that discriminates
against nonmembers. See id., at 198–199, 202 (analogizing
a private-sector union's fair-representation duty to the duty
“the Constitution imposes upon a legislature to give equal
protection to the interests of those for whom it legislates”);
cf. Rumsfeld v. Forum for Academic and Institutional
Rights, Inc., 547 U. S. 47, 69 (2006) (recognizing that govern900
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ment may not “impose penalties or withhold benefts based
on membership in a disfavored group” where doing so
“ma[kes] group membership less attractive”). To the extent
that an employer would be barred from acceding to a discriminatory
agreement anyway, the union's duty not to ask
for one is superfuous. It is noteworthy that neither respondents
nor any of the 39 amicus briefs supporting them—
nor the dissent—has explained why the duty of fair representation
causes public-sector unions to incur signifcantly
greater expenses than they would otherwise bear in negotiating
collective-bargaining agreements.
What about the representation of nonmembers in grievance
proceedings? Unions do not undertake this activity
solely for the beneft of nonmembers—which is why Illinois
law gives a public-sector union the right to send a representative
to such proceedings even if the employee declines
union representation. § 315/6(b). Representation of nonmembers
furthers the union's interest in keeping control of
the administration of the collective-bargaining agreement,
since the resolution of one employee's grievance can affect
others. And when a union controls the grievance process, it
may, as a practical matter, effectively subordinate “the interests
of [an] individual employee . . . to the collective interests
of all employees in the bargaining unit.” Alexander v.
Gardner-Denver Co., 415 U. S. 36, 58, n. 19 (1974); see Stahulak
v. Chicago, 184 Ill. 2d 176, 180–181, 703 N. E. 2d 44, 46–
47 (1998); Mahoney v. Chicago, 293 Ill. App. 3d 69, 73–74, 687
N. E. 2d 132, 135–137 (1997) (union has “ `discretion to refuse
to process' ” a grievance, provided it does not act “arbitrar[
ily]” or “in bad faith” (emphasis deleted)).
In any event, whatever unwanted burden is imposed by
the representation of nonmembers in disciplinary matters
can be eliminated “through means signifcantly less restrictive
of associational freedoms” than the imposition of agency
fees. Harris, 573 U. S., at 648–649 (internal quotation marks
omitted). Individual nonmembers could be required to pay
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for that service or could be denied union representation altogether.
6 Thus, agency fees cannot be sustained on the
ground that unions would otherwise be unwilling to represent
nonmembers.
Nor can such fees be justifed on the ground that it would
otherwise be unfair to require a union to bear the duty of
fair representation. That duty is a necessary concomitant
of the authority that a union seeks when it chooses to serve
as the exclusive representative of all the employees in a unit.
As explained, designating a union as the exclusive representative
of nonmembers substantially restricts the nonmembers'
rights. Supra, at 886–887. Protection of their
interests is placed in the hands of the union, and if the union
were free to disregard or even work against those interests,
these employees would be wholly unprotected. That is why
we said many years ago that serious “constitutional questions
[would] arise” if the union were not subject to the duty
to represent all employees fairly. Steele, supra, at 198.
In sum, we do not see any reason to treat the free-rider
interest any differently in the agency-fee context than in any
other First Amendment context. See Knox, 567 U. S., at
311, 321. We therefore hold that agency fees cannot be upheld
on free-rider grounds.
IV
Implicitly acknowledging the weakness of Abood's own
reasoning, proponents of agency fees have come forward
6 There is precedent for such arrangements. Some States have laws
providing that, if an employee with a religious objection to paying an
agency fee “requests the [union] to use the grievance procedure or arbitration
procedure on the employee's behalf, the [union] is authorized to charge
the employee for the reasonable cost of using such procedure.” E. g.,
Cal. Govt. Code Ann. § 3546.3 (West 2010); cf. Ill. Comp. Stat., ch. 5, § 315/
6(g). This more tailored alternative, if applied to other objectors, would
prevent free ridership while imposing a lesser burden on First Amendment
rights.
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with alternative justifcations for the decision, and we now
address these arguments.
A
The most surprising of these new arguments is the Union
respondent's originalist defense of Abood. According to this
argument, Abood was correctly decided because the First
Amendment was not originally understood to provide any
protection for the free speech rights of public employees.
Brief for Union Respondent 2–3, 17–20.
As an initial matter, we doubt that the Union—or its
members—actually want us to hold that public employees
have “no [free speech] rights.” Id., at 1. Cf., e. g., Brief for
National Treasury Employees Union as Amicus Curiae in
Garcetti v. Ceballos, O. T. 2005, No. 04–473, p. 7 (arguing for
“broa[d]” public-employee First Amendment rights); Brief
for AFL–CIO as Amicus Curiae in No. 04–473 (similar).
It is particularly discordant to fnd this argument in a brief
that trumpets the importance of stare decisis. See Brief for
Union Respondent 47–57. Taking away free speech protection
for public employees would mean overturning decades
of landmark precedent. Under the Union's theory, Pickering
v. Board of Ed. of Township High School Dist. 205, Will
Cty., 391 U. S. 563 (1968), and its progeny would fall. Yet
Pickering, as we will discuss, is now the foundation for respondents'
chief defense of Abood. And indeed, Abood itself
would have to go if public employees have no free speech
rights, since Abood holds that the First Amendment prohibits
the exaction of agency fees for political or ideological purposes.
431 U. S., at 234–235 (fnding it “clear” that “a government
may not require an individual to relinquish rights
guaranteed him by the First Amendment as a condition of
public employment”). Our political patronage cases would
be doomed. See, e. g., Rutan v. Republican Party of Ill.,
497 U. S. 62 (1990); Branti v. Finkel, 445 U. S. 507 (1980);
Elrod v. Burns, 427 U. S. 347 (1976). Also imperiled would
be older precedents like Wieman v. Updegraff, 344 U. S. 183
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(1952) (loyalty oaths), Shelton v. Tucker, 364 U. S. 479 (1960)
(disclosure of memberships and contributions), and Keyishian
v. Board of Regents of Univ. of State of N. Y., 385 U. S.
589 (1967) (subversive speech). Respondents presumably
want none of this, desiring instead that we apply the Constitution's
supposed original meaning only when it suits them—
to retain the part of Abood that they like. See Tr. of Oral
Arg. 56–57. We will not engage in this halfway originalism.
Nor, in any event, does the First Amendment's original
meaning support the Union's claim. The Union offers no
persuasive founding-era evidence that public employees
were understood to lack free speech protections. While it
observes that restrictions on federal employees' activities
have existed since the First Congress, most of its historical
examples involved limitations on public offcials' outside business
dealings, not on their speech. See Ex parte Curtis, 106
U. S. 371, 372–373 (1882). The only early speech restrictions
the Union identifes are an 1806 statute prohibiting military
personnel from using “ `contemptuous or disrespectful words
against the President' ” and other offcials, and an 1801 directive
limiting electioneering by top government employees.
Brief for Union Respondent 3. But those examples at most
show that the government was understood to have power to
limit employee speech that threatened important governmental
interests (such as maintaining military discipline and
preventing corruption)—not that public employees' speech
was entirely unprotected. Indeed, more recently this Court
has upheld similar restrictions even while recognizing that
government employees possess First Amendment rights.
See, e. g., Brown v. Glines, 444 U. S. 348, 353 (1980) (upholding
military restriction on speech that threatened troop
readiness); Civil Service Comm'n v. Letter Carriers, 413
U. S. 548, 556–557 (1973) (upholding limits on public employees'
political activities).
Ultimately, the Union relies, not on founding-era evidence,
but on dictum from a 1983 opinion of this Court stating that,
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“[f]or most of th[e 20th] century, the unchallenged dogma
was that a public employee had no right to object to conditions
placed upon the terms of employment—including those
which restricted the exercise of constitutional rights.” Connick
v. Myers, 461 U. S. 138, 143; see Brief for Union Respondent
2, 17. Even on its own terms, this dictum about
20th-century views does not purport to describe how the
First Amendment was understood in 1791. And a careful
examination of the decisions by this Court that Connick
cited to support its dictum, see 461 U. S., at 144, reveals
that none of them rested on the facile premise that public
employees are unprotected by the First Amendment. Instead,
they considered (much as we do today) whether particular
speech restrictions were “necessary to protect” fundamental
government interests. Curtis, supra, at 374.
The Union has also failed to show that, even if public
employees enjoyed free speech rights, the First Amendment
was nonetheless originally understood to allow forced subsidies
like those at issue here. We can safely say that, at the
time of the adoption of the First Amendment, no one gave
any thought to whether public-sector unions could charge
nonmembers agency fees. Entities resembling labor unions
did not exist at the founding, and public-sector unions did
not emerge until the mid-20th century. The idea of publicsector
unionization and agency fees would astound those who
framed and ratifed the Bill of Rights.7 Thus, the Union can-
7 Indeed, under common law, “collective bargaining was unlawful,”
Teamsters v. Terry, 494 U. S. 558, 565–566 (1990) (plurality opinion); see
N. Citrine, Trade Union Law 4–7, 9–10 (2d ed. 1960); Notes, Legality of
Trade Unions at Common Law, 25 Harv. L. Rev. 465, 466 (1912), and into
the 20th century, every individual employee had the “liberty of contract”
to “sell his labor upon such terms as he deem[ed] proper,” Adair v. United
States, 208 U. S. 161, 174–175 (1908); see R. Morris, Government and Labor
in Early America 208, 529 (1946). So even the concept of a private thirdparty
entity with the power to bind employees on the terms of their employment
likely would have been foreign to the Founders. We note this
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not point to any accepted founding-era practice that even
remotely resembles the compulsory assessment of agency
fees from public-sector employees. We do know, however,
that prominent members of the founding generation condemned
laws requiring public employees to affrm or support
beliefs with which they disagreed. As noted, Jefferson
denounced compelled support for such beliefs as “ `sinful
and tyrannical,' ” supra, at 893, and others expressed similar
views.8
In short, the Union has offered no basis for concluding that
Abood is supported by the original understanding of the
First Amendment.
B
The principal defense of Abood advanced by respondents
and the dissent is based on our decision in Pickering, 391
U. S. 563, which held that a school district violated the First
Amendment by fring a teacher for writing a letter critical
of the school administration. Under Pickering and later
cases in the same line, employee speech is largely unprotected
if it is part of what the employee is paid to do, see
Garcetti v. Ceballos, 547 U. S. 410, 421–422 (2006), or if it
involved a matter of only private concern, see Connick,
supra, at 146–149. On the other hand, when a public employee
speaks as a citizen on a matter of public concern, the
employee's speech is protected unless “ `the interest of the
State, as an employer, in promoting the effciency of the public
services it performs through its employees' outweighs
`the interests of the [employee], as a citizen, in commenting
upon matters of public concern.' ” Harris, 573 U. S., at 653
only to show the problems inherent in the Union respondent's argument;
we are not in any way questioning the foundations of modern labor law.
8 See, e. g., Ellsworth, The Landholder, VII (1787), in Essays on the Constitution
of the United States 167–171 (P. Ford ed. 1892); Webster, On Test
Laws, Oaths of Allegiance and Abjuration, and Partial Exclusions From
Offce, in A Collection of Essays and Fugitiv[e] Writings 151–153 (1790).
906 JANUS v. STATE, COUNTY, AND MUNICIPAL
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(quoting Pickering, supra, at 568). Pickering was the centerpiece
of the defense of Abood in Harris, see 573 U. S., at
673–676 (Kagan, J., dissenting), and we found the argument
unpersuasive, see id., at 652–655. The intervening years
have not improved its appeal.
1
As we pointed out in Harris, Abood was not based on
Pickering. 573 U. S., at 652, and n. 26. The Abood majority
cited the case exactly once—in a footnote—and then
merely to acknowledge that “there may be limits on the extent
to which an employee in a sensitive or policymaking
position may freely criticize his superiors and the policies
they espouse.” 431 U. S., at 230, n. 27. That aside has no
bearing on the agency-fee issue here.9
Respondents' reliance on Pickering is thus “an effort to
fnd a new justifcation for the decision in Abood.” Harris,
supra, at 652. And we have previously taken a dim view
of similar attempts to recast problematic First Amendment
decisions. See, e. g., Citizens United v. Federal Election
Comm'n, 558 U. S. 310, 348–349, 363 (2010) (rejecting efforts
to recast Austin v. Michigan Chamber of Commerce, 494
U. S. 652 (1990)); see also Citizens United, supra, at 382–385
(Roberts, C. J., concurring). We see no good reason, at this
late date, to try to shoehorn Abood into the Pickering
framework.
2
Even if that were attempted, the shoe would be a painful
ft for at least three reasons.
9 Justice Powell's separate opinion did invoke Pickering in a relevant
sense, but he did so only to acknowledge the State's relatively greater
interest in regulating speech when it acts as employer than when it acts as
sovereign. Abood v. Detroit Bd. of Ed., 431 U. S. 209, 259 (1977) (opinion
concurring in judgment). In the very next sentence, he explained that
“even in public employment, a signifcant impairment of First Amendment
rights must survive exacting scrutiny.” Ibid. (internal quotation marks
omitted). That is the test we apply today.
Cite as: 585 U. S. 878 (2018) 907
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First, the Pickering framework was developed for use in a
very different context—in cases that involve “one employee's
speech and its impact on that employee's public responsibilities.”
United States v. Treasury Employees, 513 U. S. 454,
467 (1995). This case, by contrast, involves a blanket requirement
that all employees subsidize speech with which
they may not agree. While we have sometimes looked to
Pickering in considering general rules that affect broad
categories of employees, we have acknowledged that the
standard Pickering analysis requires modifcation in that situation.
See 513 U. S., at 466–468, and n. 11. A speechrestrictive
law with “widespread impact,” we have said,
“gives rise to far more serious concerns than could any single
supervisory decision.” Id., at 468. Therefore, when such a
law is at issue, the government must shoulder a correspondingly
“heav[ier]” burden, id., at 466, and is entitled to considerably
less deference in its assessment that a predicted harm
justifes a particular impingement on First Amendment
rights, see id., at 475–476, n. 21; accord, id., at 482–483
(O'Connor, J., concurring in judgment in part and dissenting
in part). The end product of those adjustments is a test that
more closely resembles exacting scrutiny than the traditional
Pickering analysis.
The core collective-bargaining issue of wages and benefts
illustrates this point. Suppose that a single employee complains
that he or she should have received a 5% raise. This
individual complaint would likely constitute a matter of only
private concern and would therefore be unprotected under
Pickering. But a public-sector union's demand for a 5%
raise for the many thousands of employees it represents
would be another matter entirely. Granting such a raise
could have a serious impact on the budget of the government
unit in question, and by the same token, denying a raise
might have a signifcant effect on the performance of government
services. When a large number of employees speak
through their union, the category of speech that is of public
908 JANUS v. STATE, COUNTY, AND MUNICIPAL
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concern is greatly enlarged, and the category of speech that
is of only private concern is substantially shrunk. By disputing
this, post, at 943–944, the dissent denies the obvious.
Second, the Pickering framework fts much less well
where the government compels speech or speech subsidies
in support of third parties. Pickering is based on the insight
that the speech of a public-sector employee may interfere
with the effective operation of a government offce.
When a public employer does not simply restrict potentially
disruptive speech but commands that its employees mouth a
message on its own behalf, the calculus is very different. Of
course, if the speech in question is part of an employee's
offcial duties, the employer may insist that the employee
deliver any lawful message. See Garcetti, 547 U. S., at 421–
422, 425–426. Otherwise, however, it is not easy to imagine
a situation in which a public employer has a legitimate need
to demand that its employees recite words with which they
disagree. And we have never applied Pickering in such a
case.
Consider our decision in Connick. In that case, we held
that an assistant district attorney's complaints about the supervisors
in her offce were, for the most part, matters of
only private concern. 461 U. S., at 148. As a result, we
held, the district attorney could fre her for making those
comments. Id., at 154. Now, suppose that the assistant
had not made any critical comments about the supervisors
but that the district attorney, out of the blue, demanded that
she circulate a memo praising the supervisors. Would her
refusal to go along still be a matter of purely private concern?
And if not, would the order be justifed on the ground
that the effective operation of the offce demanded that the
assistant voice complimentary sentiments with which she
disagreed? If Picker ing applies at all to compelled
speech—a question that we do not decide—it would certainly
require adjustment in that context.
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Third, although both Pickering and Abood divided speech
into two categories, the cases' categorization schemes do not
line up. Superimposing the Pickering scheme on Abood
would signifcantly change the Abood regime.
Let us frst look at speech that is not germane to collective
bargaining but instead concerns political or ideological issues.
Under Abood, a public employer is fatly prohibited
from permitting nonmembers to be charged for this speech,
but under Pickering, the employees' free speech interests
could be overcome if a court found that the employer's interests
outweighed the employees'.
A similar problem arises with respect to speech that is
germane to collective bargaining. The parties dispute how
much of this speech is of public concern, but respondents
concede that much of it falls squarely into that category.
See Tr. of Oral Arg. 47, 65. Under Abood, nonmembers may
be required to pay for all this speech, but Pickering would
permit that practice only if the employer's interests outweighed
those of the employees. Thus, recasting Abood as
an application of Pickering would substantially alter the
Abood scheme.
For all these reasons, Pickering is a poor ft indeed.
V
Even if we were to apply some form of Pickering, Illinois'
agency-fee arrangement would not survive.
A
Respondents begin by suggesting that union speech in
collective-bargaining and grievance proceedings should be
treated like the employee speech in Garcetti, i. e., as speech
“pursuant to [an employee's] offcial duties,” 547 U. S., at 421.
Many employees, in both the public and private sectors, are
paid to write or speak for the purpose of furthering the interests
of their employers. There are laws that protect pub910
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Opinion of the Court
lic employees from being compelled to say things that they
reasonably believe to be untrue or improper, see id., at 425–
426, but in general when public employees are performing
their job duties, their speech may be controlled by their employer.
Trying to ft union speech into this framework, respondents
now suggest that the union speech funded by
agency fees forms part of the offcial duties of the union offcers
who engage in the speech. Brief for Union Respondent
22–23; see Brief for State Respondents 23–24.
This argument distorts collective bargaining and grievance
adjustment beyond recognition. When an employee
engages in speech that is part of the employee's job duties,
the employee's words are really the words of the employer.
The employee is effectively the employer's spokesperson.
But when a union negotiates with the employer or represents
employees in disciplinary proceedings, the union
speaks for the employees, not the employer. Otherwise, the
employer would be negotiating with itself and disputing its
own actions. That is not what anybody understands to be
happening.
What is more, if the union's speech is really the employer's
speech, then the employer could dictate what the union says.
Unions, we trust, would be appalled by such a suggestion.
For these reasons, Garcetti is totally inapposite here.
B
Since the union speech paid for by agency fees is not controlled
by Garcetti, we move on to the next step of the Pickering
framework and ask whether the speech is on a matter
of public or only private concern. In Harris, the dissent's
central argument in defense of Abood was that union speech
in collective bargaining, including speech about wages and
benefts, is basically a matter of only private interest. See
573 U. S., at 675–676 (Kagan, J., dissenting). We squarely
rejected that argument, see id., at 653–654, and the facts
of the present case substantiate what we said at that time:
“[I]t is impossible to argue that the level of . . . state spendCite
as: 585 U. S. 878 (2018) 911
Opinion of the Court
ing for employee benefts . . . is not a matter of great public
concern,” id., at 654.
Illinois, like some other States and a number of counties
and cities around the country, suffers from severe budget
problems.10 As of 2013, Illinois had nearly $160 billion in
unfunded pension and retiree healthcare liabilities.11 By
2017, that number had only grown, and the State was grappling
with $15 billion in unpaid bills.12 We are told that
a “quarter of the budget is now devoted to paying down”
those liabilities.13 These problems and others led Moody's
and S & P to downgrade Illinois' credit rating to “one step
above junk”—the “lowest ranking on record for a U. S.
state.” 14
The Governor, on one side, and public-sector unions, on the
other, disagree sharply about what to do about these problems.
The State claims that its employment-related debt is
“ `squeezing core programs in education, public safety, and
human services, in addition to limiting [the State's] ability to
pay [its] bills.' ” Securities Act of 1933 Release No. 9389,
105 S. E. C. Docket 3381, 3383 (2013). It therefore “told the
10 See Brief for State of Michigan et al. as Amici Curiae 9–24. Nationwide,
the cost of state and local employees' wages and benefts, for
example, is nearly $1.5 trillion—more than half of those jurisdictions'
total expenditures. See Dept. of Commerce, Bureau of Economic Analysis,
National Data, GDP & Personal Income, Table 6.2D, line 92 (Aug. 3,
2017), and Table 3.3, l ine 37 (May 30, 2018), https://www.bea.
gov/iTable/iTable.cfm?reqid=19&step=2#reqid=19&step=2&isuri=1&1921=
survey. And many States and cities struggle with unfunded pension and
retiree healthcare liabilities and other budget issues.
11 PEW Charitable Trusts, Fiscal 50: State Trends and Analysis (updated
May 17, 2016), http://www.pewtrusts.org/en/research-and-analysis/
data-visualizations/2014/fscal-50#ind4.
12 See Brief for Jason R. Barclay et al. as Amici Curiae 9; M. Egan, How
Illinois Became America's Most Messed-Up State, CNN Money (July 1,
2017), https://cnnmon.ie/2tp9NX5.
13 Brief for Jason R. Barclay et al. as Amici Curiae 9.
14 E. Campbell, S&P, Moody's Downgrade Illinois to Near Junk, Lowest
Ever for a U. S. State, Bloomberg (June 1, 2017), https:// bloom.bg/
2roEJUc.
912 JANUS v. STATE, COUNTY, AND MUNICIPAL
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Union that it would attempt to address th[e fnancial] crisis,
at least in part, through collective bargaining.” Board Decision
12–13. And “the State's desire for savings” in fact
“dr[o]ve [its] bargaining” positions on matters such as healthinsurance
benefts and holiday, overtime, and promotion
policies. Id., at 13; Illinois Dept. of Central Management
Servs. v. AFSCME, Council 31, No. S–CB–16–017 etc., 33
PERI ¶67 (ILRB Dec. 13, 2016) (ALJ Decision), pp. 26–28,
63–66, 224. But when the State offered cost-saving proposals
on these issues, the Union countered with very different
suggestions. Among other things, it advocated wage and
tax increases, cutting spending “to Wall Street fnancial institutions,”
and reforms to Illinois' pension and tax systems
(such as closing “corporate tax loopholes,” “[e]xpanding the
base of the state sales tax,” and “allowing an income tax that
is adjusted in accordance with ability to pay”). Id., at 27–28.
To suggest that speech on such matters is not of great
public concern—or that it is not directed at the “public
square,” post, at 945 (Kagan, J., dissenting)—is to deny
reality.
In addition to affecting how public money is spent, union
speech in collective bargaining addresses many other important
matters. As the examples offered by respondents'
own amici show, unions express views on a wide range of
subjects—education, child welfare, healthcare, and minority
rights, to name a few. See, e. g., Brief for American Federation
of Teachers as Amicus Curiae 15–27; Brief for Child
Protective Service Workers et al. as Amici Curiae 5–13;
Brief for Human Rights Campaign et al. as Amici Curiae
10–17; Brief for National Women's Law Center et al. as
Amici Curiae 14–30. What unions have to say on these
matters in the context of collective bargaining is of great
public importance.
Take the example of education, which was the focus of
briefng and argument in Friedrichs. The public importance
of subsidized union speech is especially apparent in
this feld, since educators make up by far the largest cateCite
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gory of state and local government employees, and education
is typically the largest component of state and local government
expenditures.15
Speech in this area also touches on fundamental questions
of education policy. Should teacher pay be based on seniority,
the better to retain experienced teachers? Or should
schools adopt merit-pay systems to encourage teachers to
get the best results out of their students? 16 Should districts
transfer more experienced teachers to the lower performing
schools that may have the greatest need for their skills, or
should those teachers be allowed to stay where they have
put down roots? 17 Should teachers be given tenure protection
and, if so, under what conditions? On what grounds and
pursuant to what procedures should teachers be subject to
discipline or dismissal? How should teacher performance
and student progress be measured—by standardized tests or
other means?
Unions can also speak out in collective bargaining on controversial
subjects such as climate change,18 the Confederacy,
19 sexual orientation and gender identity,20 evolution,21
15 See National Association of State Budget Offcers, Summary: Spring
2018 Fiscal Survey of States 2 (June 14, 2018), http://www.nasbo.org; Pro-
Quest Statistical Abstract of the United States: 2018, p. 306, Table 476,
p. 321, Table 489.
16 See Rogers, School Districts `Race to the Top' Despite Teacher Dispute,
Marin Independent J., June 19, 2010.
17 See Sawchuk, Transferring Top Teachers Has Benefts: Study Probes
Moving Talent to Low-Performing Schools, Education Week, Nov. 13, 2013,
pp. 1, 13.
18 See Tucker, Textbooks Equivocate on Global Warming: Stanford
Study Finds Portrayal `Dishonest,' San Francisco Chronicle, Nov. 24,
2015, p. C1.
19 See Reagan, Anti-Confederacy Movement Rekindles Texas Textbook
Controversy, San Antonio Current, Aug. 4, 2015.
20 See Watanabe, How To Teach Gay Issues in 1st Grade? A New Law
Requiring California Schools To Have Lessons About LGBT Americans
Raises Tough Questions, L. A. Times, Oct. 16, 2011, p. A1.
21 See Goodstein, A Web of Faith, Law and Science in Evolution Suit,
N. Y. Times, Sept. 26, 2005, p. A1.
914 JANUS v. STATE, COUNTY, AND MUNICIPAL
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Opinion of the Court
and minority religions.22 These are sensitive political topics,
and they are undoubtedly matters of profound “ `value
and concern to the public.' ” Snyder v. Phelps, 562 U. S. 443,
453 (2011). We have often recognized that such speech “ `occupies
the highest rung of the hierarchy of First Amendment
values' ” and merits “ `special protection.' ” Id., at 452.
What does the dissent say about the prevalence of such
issues? The most that it is willing to admit is that “some”
issues that arise in collective bargaining “raise important
non-budgetary disputes.” Post, at 946. Here again, the
dissent refuses to recognize what actually occurs in publicsector
collective bargaining.
Even union speech in the handling of grievances may be
of substantial public importance and may be directed at the
“public square.” Post, at 945. For instance, the Union respondent
in this case recently fled a grievance seeking to
compel Illinois to appropriate $75 million to fund a 2% wage
increase. State v. AFSCME, Council 31, 2016 IL 118422, 51
N. E. 3d 738, 740–742, and n. 4. In short, the union speech
at issue in this case is overwhelmingly of substantial public
concern.
C
The only remaining question under Pickering is whether
the State's proffered interests justify the heavy burden that
agency fees infict on nonmembers' First Amendment interests.
We have already addressed the state interests asserted
in Abood—promoting “labor peace” and avoiding free
riders, see supra, at 895–901—and we will not repeat that
analysis.
In Harris and this case, defenders of Abood have asserted
a different state interest—in the words of the Harris dissent,
the State's “interest in bargaining with an adequately
funded exclusive bargaining agent. ” 573 U. S., at 663
22 See Golden, Defending the Faith: New Battleground in Textbook
Wars: Religion in History, Wall St. J., Jan. 25, 2006, p. A1.
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Opinion of the Court
(Kagan, J., dissenting); see also post, at 936–937 (same).
This was not “the interest Abood recognized and protected,”
Harris, supra, at 663 (same), and, in any event, it is
insuffcient.
Although the dissent would accept without any serious
independent evaluation the State's assertion that the absence
of agency fees would cripple public-sector unions and
thus impair the effciency of government operations, see post,
at 937–939, ample experience, as we have noted, supra, at
895–896, shows that this is questionable.
Especially in light of the more rigorous form of Pickering
analysis that would apply in this context, see supra, at 906–
909, the balance tips decisively in favor of the employees'
free speech rights.23
23 Claiming that our decision will hobble government operations, the dissent
asserts that it would prevent a government employer from taking
action against disruptive non-unionized employees in two carefully constructed
hypothetical situations. See post, at 946–947. Both hypotheticals
are short on potentially important details, but in any event, neither
would be affected by our decision in this case. Rather, both would simply
call for the application of the standard Pickering test.
In one of the hypotheticals, teachers “protest merit pay in the school
cafeteria.” Post, at 947. If such a case actually arose, it would be important
to know, among other things, whether the teachers involved were
supposed to be teaching in their classrooms at the time in question and
whether the protest occurred in the presence of students during the student
lunch period. If both those conditions were met, the teachers would
presumably be violating content-neutral rules regarding their duty to
teach at specifed times and places, and their conduct might well have a
disruptive effect on the educational process. Thus, in the dissent's hypothetical,
the school's interests might well outweigh those of the teachers,
but in this hypothetical case, as in all Pickering cases, the particular facts
would be very important.
In the other hypothetical, employees agitate for a better health plan “at
various inopportune times and places.” Post, at 947. Here, the lack of
factual detail makes it impossible to evaluate how the Pickering balance
would come out. The term “agitat[ion]” can encompass a wide range of
conduct, as well as speech. Post, at 947. And the time and place of the
agitation would also be important.
916 JANUS v. STATE, COUNTY, AND MUNICIPAL
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We readily acknowledge, as Pickering did, that “the State
has interests as an employer in regulating the speech of its
employees that differ signifcantly from those it possesses in
connection with regulation of the speech of the citizenry in
general.” 391 U. S., at 568. Our analysis is consistent with
that principle. The exacting scrutiny standard we apply in
this case was developed in the context of commercial speech,
another area where the government has traditionally enjoyed
greater-than-usual power to regulate speech. See
supra, at 894. It is also not disputed that the State may
require that a union serve as exclusive bargaining agent for
its employees—itself a signifcant impingement on associational
freedoms that would not be tolerated in other contexts.
We simply draw the line at allowing the government
to go further still and require all employees to support the
union irrespective of whether they share its views. Nothing
in the Pickering line of cases requires us to uphold every
speech restriction the government imposes as an employer.
See Pickering, supra, at 564–566 (holding teacher's dismissal
for criticizing school board unconstitutional); Rankin v. Mc-
Pherson, 483 U. S. 378, 392 (1987) (holding clerical employee's
dismissal for supporting assassination attempt on President
unconstitutional); Treasury Employees, 513 U. S., at 477
(holding federal-employee honoraria ban unconstitutional).
VI
For the reasons given above, we conclude that publicsector
agency-shop arrangements violate the First Amendment,
and Abood erred in concluding otherwise. There
remains the question whether stare decisis nonetheless counsels
against overruling Abood. It does not.
“Stare decisis is the preferred course because it promotes
the evenhanded, predictable, and consistent development of
legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial
process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991).
Cite as: 585 U. S. 878 (2018) 917
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We will not overturn a past decision unless there are strong
grounds for doing so. United States v. International Business
Machines Corp., 517 U. S. 843, 855–856 (1996); Citizens
United, 558 U. S., at 377 (Roberts, C. J., concurring). But
as we have often recognized, stare decisis is “ `not an inexorable
command.' ” Pearson v. Callahan, 555 U. S. 223, 233
(2009); see also Lawrence v. Texas, 539 U. S. 558, 577 (2003);
State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); Agostini v. Felton,
521 U. S. 203, 235 (1997); Seminole Tribe of Fla. v. Florida,
517 U. S. 44, 63 (1996); Payne, supra, at 828.
The doctrine “is at its weakest when we interpret the Constitution
because our interpretation can be altered only by
constitutional amendment or by overruling our prior decisions.”
Agostini, supra, at 235. And stare decisis applies
with perhaps least force of all to decisions that wrongly denied
First Amendment rights: “This Court has not hesitated
to overrule decisions offensive to the First Amendment (a
fxed star in our constitutional constellation, if there is one).”
Federal Election Comm'n v. Wisconsin Right to Life, Inc.,
551 U. S. 449, 500 (2007) (Scalia, J., concurring in part and
concurring in judgment) (internal quotation marks omitted);
see also Citizens United, supra, at 362–365 (overruling Austin,
494 U. S. 652); Barnette, 319 U. S., at 642 (overruling
Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940)).
Our cases identify factors that should be taken into account
in deciding whether to overrule a past decision. Five
of these are most important here: the quality of Abood's reasoning,
the workability of the rule it established, its consistency
with other related decisions, developments since the decision
was handed down, and reliance on the decision. After
analyzing these factors, we conclude that stare decisis does
not require us to retain Abood.
A
An important factor in determining whether a precedent
should be overruled is the quality of its reasoning, see Citi918
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zens United, 558 U. S., at 363–364; id., at 382–385 (Roberts,
C. J., concurring); Lawrence, 539 U. S., at 577–578, and as we
explained in Harris, Abood was poorly reasoned, see 573
U. S., at 635–638. We will summarize, but not repeat, Harris's
lengthy discussion of the issue.
Abood went wrong at the start when it concluded that two
prior decisions, Railway Employees v. Hanson, 351 U. S.
225 (1956), and Machinists v. Street, 367 U. S. 740 (1961),
“appear[ed] to require validation of the agency-shop
agreement before [the Court].” 431 U. S., at 226. Properly
understood, those decisions did no such thing. Both cases
involved Congress's “bare authorization” of private-sector
union shops under the Railway Labor Act. Street, supra,
at 749 (emphasis added).24 Abood failed to appreciate that
a very different First Amendment question arises when
a State requires its employees to pay agency fees. See
Harris, supra, at 636.
Moreover, neither Hanson nor Street gave careful consideration
to the First Amendment. In Hanson, the primary
questions were whether Congress exceeded its power under
the Commerce Clause or violated substantive due process
by authorizing private union-shop arrangements under the
Commerce and Due Process Clauses. 351 U. S., at 233–235.
24 No First Amendment issue could have properly arisen in those cases
unless Congress's enactment of a provision allowing, but not requiring,
private parties to enter into union-shop arrangements was suffcient to
establish governmental action. That proposition was debatable when
Abood was decided, and is even more questionable today. See American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U. S. 40, 53 (1999); Jackson v. Metropolitan
Edison Co., 419 U. S. 345, 357 (1974). Compare, e. g., White v.
Communications Workers of Am., AFL–CIO, Local 13000, 370 F. 3d 346,
350 (CA3 2004) (no state action), and Kolinske v. Lubbers, 712 F. 2d 471,
477–478 (CADC 1983) (same), with Beck v. Communications Workers of
Am., 776 F. 2d 1187, 1207 (CA4 1985) (state action), and Linscott v. Millers
Falls Co., 440 F. 2d 14, 16, and n. 2 (CA1 1971) (same). We reserved
decision on this question in Communications Workers v. Beck, 487 U. S.
735, 761 (1988), and do not resolve it here.
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After deciding those questions, the Court summarily dismissed
what was essentially a facial First Amendment challenge,
noting that the record did not substantiate the challengers'
claim. Id., at 238; see Harris, supra, at 635–636.
For its part, Street was decided as a matter of statutory construction,
and so did not reach any constitutional issue. 367
U. S., at 749–750, 768–769. Abood nevertheless took the view
that Hanson and Street “all but decided” the important free
speech issue that was before the Court. Harris, 573 U. S., at
635. As we said in Harris, “[s]urely a First Amendment issue
of this importance deserved better treatment.” Id., at 636.
Abood's unwarranted reliance on Hanson and Street appears
to have contributed to another mistake: Abood judged
the constitutionality of public-sector agency fees under a deferential
standard that fnds no support in our free speech
cases. (As noted, supra, at 894–895, today's dissent makes
the same fundamental mistake.) Abood did not independently
evaluate the strength of the government interests that
were said to support the challenged agency-fee provision;
nor did it ask how well that provision actually promoted
those interests or whether they could have been adequately
served without impinging so heavily on the free speech
rights of nonmembers. Rather, Abood followed Hanson and
Street, which it interpreted as having deferred to “the legislative
assessment of the important contribution of the union
shop to the system of labor relations established by Congress.”
431 U. S., at 222 (emphasis added). But Hanson
deferred to that judgment in deciding the Commerce Clause
and substantive due process questions that were the focus of
the case. Such deference to legislative judgments is inappropriate
in deciding free speech issues.
If Abood had considered whether agency fees were actually
needed to serve the asserted state interests, it might
not have made the serious mistake of assuming that one of
those interests—“labor peace”—demanded, not only that a
single union be designated as the exclusive representative of
920 JANUS v. STATE, COUNTY, AND MUNICIPAL
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Opinion of the Court
all the employees in the relevant unit but also that nonmembers
be required to pay agency fees. Deferring to a perceived
legislative judgment, Abood failed to see that the designation
of a union as exclusive representative and the
imposition of agency fees are not inextricably linked. See
supra, at 895–896; Harris, supra, at 649.
Abood also did not suffciently take into account the
difference between the effects of agency fees in public-and
private-sector collective bargaining. The challengers in
Abood argued that collective bargaining with a government
employer, unlike collective bargaining in the private sector,
involves “inherently `political' ” speech. 431 U. S., at 226.
The Court did not dispute that characterization, and in fact
conceded that “decisionmaking by a public employer is above
all a political process” driven more by policy concerns than
economic ones. Id., at 228; see id., at 228–231. But (again
invoking Hanson), the Abood Court asserted that public employees
do not have “weightier First Amendment interest[s]”
against compelled speech than do private employees. 431
U. S., at 229. That missed the point. Assuming for the
sake of argument that the First Amendment applies at all to
private-sector agency-shop arrangements, the individual interests
at stake still differ. “In the public sector, core issues
such as wages, pensions, and benefts are important political
issues, but that is generally not so in the private sector.”
Harris, 573 U. S., at 636.
Overlooking the importance of this distinction, “Abood
failed to appreciate the conceptual diffculty of distinguishing
in public-sector cases between union expenditures that are
made for collective-bargaining purposes and those that are
made to achieve political ends.” Ibid. Likewise, “Abood
does not seem to have anticipated the magnitude of the practical
administrative problems that would result in attempting
to classify public-sector union expenditures as either
`chargeable' . . . or nonchargeable.” Id., at 637. Nor did
Abood “foresee the practical problems that would face objecting
nonmembers.” 573 U. S., at 637.
Cite as: 585 U. S. 878 (2018) 921
Opinion of the Court
In sum, as detailed in Har r is, Abood was not well
reasoned.25
B
Another relevant consideration in the stare decisis calculus
is the workability of the precedent in question, Montejo v.
Louisiana, 556 U. S. 778, 792 (2009), and that factor also
weighs against Abood.
1
Abood's line between chargeable and nonchargeable union
expenditures has proved to be impossible to draw with precision.
We tried to give the line some defnition in Lehnert.
There, a majority of the Court adopted a three-part test requiring
that chargeable expenses (1) be “ `germane' ” to collective
bargaining, (2) be “justifed” by the government's
labor-peace and free-rider interests, and (3) not add “signifcantly”
to the burden on free speech, 500 U. S., at 519, but
the Court splintered over the application of this test, see
id., at 519–522 (plurality opinion); id., at 533–534 (Marshall,
J., concurring in part and dissenting in part). That
division was not surprising. As the Lehnert dissenters
aptly observed, each part of the majority's test “involves a
substantial judgment call,” id., at 551 (opinion of Scalia, J.),
rendering the test “altogether malleable” and “no[t] principled,”
id., at 563 (Kennedy, J., concurring in judgment in
part and dissenting in part).
Justice Scalia presciently warned that Lehnert's amorphous
standard would invite “perpetua[l] give-it-a-try litigation,”
id., at 551, and the Court's experience with union lobbying
expenses illustrates the point. The Lehnert plurality
held that money spent on lobbying for increased education
25 Contrary to the dissent's claim, see post, at 948–949, and n. 4, the fact
that “[t]he rationale of [Abood] does not withstand careful analysis” is
a reason to overrule it, e. g., Lawrence v. Texas, 539 U. S. 558, 577 (2003).
And that is even truer when, as here, the defenders of the precedent do not
attempt to “defen[d its actual] reasoning.” Citizens United v. Federal
Election Comm'n, 558 U. S. 310, 363 (2010); id., at 382–385 (Roberts, C. J.,
concurring).
922 JANUS v. STATE, COUNTY, AND MUNICIPAL
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Opinion of the Court
funding was not chargeable. Id., at 519–522. But Justice
Marshall—applying the same three-prong test—reached precisely
the opposite conclusion. Id., at 533–542. And Lehnert
failed to settle the matter; States and unions have continued
to “give it a try” ever since.
In Knox, for example, we confronted a union's claim that
the costs of lobbying the legislature and the electorate about
a ballot measure were chargeable expenses under Lehnert.
See Brief for Respondent in Knox v. Service Employees,
O. T. 2011, No. 10–1121, pp. 48–53. The Court rejected this
claim out of hand, 567 U. S., at 320–321, but the dissent refused
to do so, id., at 336 (opinion of Breyer, J.). And in
the present case, nonmembers are required to pay for unspecifed
“[l]obbying” expenses and for “[s]ervices” that
“may ultimately inure to the beneft of the members of the
local bargaining unit.” App. to Pet. for Cert. 31a–32a.
That formulation is broad enough to encompass just about
anything that the union might choose to do.
Respondents agree that Abood's chargeable-nonchargeable
line suffers from “a vagueness problem,” that it sometimes
“allows what it shouldn't allow,” and that a “frm[er] line
c[ould] be drawn.” Tr. of Oral Arg. 47–48. They therefore
argue that we should “consider revisiting” this part of
Abood. Tr. of Oral Arg. 67; see Brief for Union Respondent
46–47; Brief for State Respondents 30. This concession only
underscores the reality that Abood has proved unworkable:
Not even the parties defending agency fees support the line
that it has taken this Court over 40 years to draw.
2
Objecting employees also face a daunting and expensive
task if they wish to challenge union chargeability determinations.
While Hudson requires a union to provide nonmembers
with “suffcient information to gauge the propriety of
the union's fee,” 475 U. S., at 306, the Hudson notice in the
present case and in others that have come before us do not
begin to permit a nonmember to make such a determination.
Cite as: 585 U. S. 878 (2018) 923
Opinion of the Court
In this case, the notice lists categories of expenses and
sets out the amount in each category that is said to be
attributable to chargeable and nonchargeable expenses.
Here are some examples regarding the Union respondent's
expenditures:
Category Total Expense
Chargeable
Expense
Salary and
Benefts $14,718,708 $11,830,230
Offce Printing,
Supplies, and
Advertising
$148,272 $127,959
Postage and
Freight $373,509 $268,107
Telephone $214,820 $192,721
Convention
Expense $268,855 $268,855
See App. to Pet. for Cert. 35a–36a.
How could any nonmember determine whether these numbers
are even close to the mark without launching a legal
challenge and retaining the services of attorneys and accountants?
Indeed, even with such services, it would be a
laborious and diffcult task to check these fgures.26
The Union respondent argues that challenging its chargeability
determinations is not burdensome because the Union
pays for the costs of arbitration, see Brief for Union Respondent
10–11, but objectors must still pay for the attorneys
and experts needed to mount a serious challenge. And
the attorney's fees incurred in such a proceeding can be substantial.
See, e. g., Knox v. Chiang, 2013 WL 2434606, *15
(ED Cal., June 5, 2013) (attorney's fees in Knox exceeded $1
26 For this reason, it is hardly surprising that chargeability issues have
not arisen in many Court of Appeals cases. See post, at 951 (Kagan,
J., dissenting).
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million). The Union respondent's suggestion that an objector
could obtain adequate review without even showing up
at an arbitration, see App. to Pet. for Cert. 40a–41a, is therefore
farfetched.
C
Developments since Abood, both factual and legal, have
also “eroded” the decision's “underpinnings” and left it an
outlier among our First Amendment cases. United States
v. Gaudin, 515 U. S. 506, 521 (1995).
1
Abood pinned its result on the “unsupported empirical assumption”
that “the principle of exclusive representation in
the public sector is dependent on a union or agency shop.”
Harris, 573 U. S., at 638; Abood, 431 U. S., at 220–222. But,
as already noted, experience has shown otherwise. See
supra, at 895–896.
It is also signifcant that the Court decided Abood against
a very different legal and economic backdrop. Public-sector
unionism was a relatively new phenomenon in 1977. The
frst State to permit collective bargaining by government
employees was Wisconsin in 1959, R. Kearney & P. Mareschal,
Labor Relations in the Public Sector 64 (5th ed. 2014),
and public-sector union membership remained relatively low
until a “spurt” in the late 1960's and early 1970's, shortly
before Abood was decided, Freeman, Unionism Comes to
the Public Sector, 24 J. Econ. Lit. 41, 45 (1986). Since then,
public-sector union membership has come to surpass privatesector
union membership, even though there are nearly four
times as many total private-sector employees as publicsector
employees. B. Hirsch & D. Macpherson, Union Membership
and Earnings Data Book 9–10, 12, 16 (2013 ed.).
This ascendance of public-sector unions has been marked
by a parallel increase in public spending. In 1970, total
state and local government expenditures amounted to $646
per capita in nominal terms, or about $4,000 per capita in
Cite as: 585 U. S. 878 (2018) 925
Opinion of the Court
2014 dollars. See Dept. of Commerce, Statistical Abstract
of the United States: 1972, p. 419; CPI Infation Calculator,
BLS, http://data.bls.gov/cgi-bin/cpicalc.pl. By 2014, that
fgure had ballooned to approximately $10,238 per capita.
ProQuest, Statistical Abstract of the United States: 2018,
p. 17, Table 14, p. 300, Table 469. Not all that increase can
be attributed to public-sector unions, of course, but the
mounting costs of public-employee wages, benefts, and pensions
undoubtedly played a substantial role. We are told,
for example, that Illinois' pension funds are underfunded by
$129 billion as a result of generous public-employee retirement
packages. Brief for Jason R. Barclay et al. as Amici
Curiae 9, 14. Unsustainable collective-bargaining agreements
have also been blamed for multiple municipal bankruptcies.
See Brief for State of Michigan et al. as Amici
Curiae 10–19. These developments, and the political debate
over public spending and debt they have spurred, have given
collective-bargaining issues a political valence that Abood
did not fully appreciate.
2
Abood is also an “anomaly” in our First Amendment jurisprudence,
as we recognized in Harris and Knox. Harris,
supra, at 627; Knox, 567 U. S., at 311. This is not an altogether
new observation. In Abood itself, Justice Powell
faulted the Court for failing to perform the “ `exacting scrutiny'
” applied in other cases involving signifcant impingements
on First Amendment rights. 431 U. S., at 259; see id.,
at 259–260, and n. 14. Our later cases involving compelled
speech and association have also employed exacting scrutiny,
if not a more demanding standard. See, e. g., Roberts, 468
U. S., at 623; United Foods, 533 U. S., at 414. And we have
more recently refused, even in agency-fee cases, to extend
Abood beyond circumstances where it directly controls. See
Knox, supra, at 314; Harris, supra, at 646–647.
Abood particularly sticks out when viewed against our
cases holding that public employees generally may not be
926 JANUS v. STATE, COUNTY, AND MUNICIPAL
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Opinion of the Court
required to support a political party. See Elrod, 427 U. S.
347; Branti, 445 U. S. 507; Rutan, 497 U. S. 62; O'Hare Truck
Service, Inc. v. City of Northlake, 518 U. S. 712 (1996). The
Court reached that conclusion despite a “long tradition” of
political patronage in government. Rutan, supra, at 95
(Scalia, J., dissenting); see also Elrod, 427 U. S., at 353 (plurality
opinion); id., at 377–378 (Powell, J., dissenting). It is
an odd feature of our First Amendment cases that political
patronage has been deemed largely unconstitutional, while
forced subsidization of union speech (which has no such pedigree)
has been largely permitted. As Justice Powell observed:
“I am at a loss to understand why the State's decision
to adopt the agency shop in the public sector should be worthy
of greater deference, when challenged on First Amendment
grounds, than its decision to adhere to the tradition
of political patronage.” Abood, supra, at 260, n. 14 (opinion
concurring in judgment) (citing Elrod, supra, at 376–380,
382–387 (Powell, J., dissenting); emphasis added). We have
no occasion here to reconsider our political patronage decisions,
but Justice Powell's observation is sound as far as it
goes. By overruling Abood, we end the oddity of privileging
compelled union support over compelled party support
and bring a measure of greater coherence to our First
Amendment law.
D
In some cases, reliance provides a strong reason for adhering
to established law, see, e. g., Hilton v. South Carolina
Public Railways Comm'n, 502 U. S. 197, 202–203 (1991),
and this is the factor that is stressed most strongly by respondents,
their amici, and the dissent. They contend that
collective-bargaining agreements now in effect were negotiated
with agency fees in mind and that unions may have
given up other benefts in exchange for provisions granting
them such fees. Tr. of Oral Arg. 67–68; see Brief for State
Respondents 54; Brief for Union Respondent 50; post, at 951–
955 (Kagan, J., dissenting). In this case, however, reliance
does not carry decisive weight.
Cite as: 585 U. S. 878 (2018) 927
Opinion of the Court
For one thing, it would be unconscionable to permit free
speech rights to be abridged in perpetuity in order to preserve
contract provisions that will expire on their own in a
few years' time. “The fact that [public-sector unions] may
view [agency fees] as an entitlement does not establish the
sort of reliance interest that could outweigh the countervailing
interest that [nonmembers] share in having their constitutional
rights fully protected.” Arizona v. Gant, 556 U. S.
332, 349 (2009).
For another, Abood does not provide “a clear or easily applicable
standard, so arguments for reliance based on its clarity
are misplaced.” South Dakota v. Wayfair, Inc., 585 U. S.
162, 186 (2018); see supra, at 921–924.
This is especially so because public-sector unions have
been on notice for years regarding this Court's misgivings
about Abood. In Knox, decided in 2012, we described Abood
as a First Amendment “anomaly.” 567 U. S., at 311. Two
years later in Harris, we were asked to overrule Abood, and
while we found it unnecessary to take that step, we cataloged
Abood's many weaknesses. In 2015, we granted a
petition for certiorari asking us to review a decision that
sustained an agency-fee arrangement under Abood. Friedrichs
v. California Teachers Assn., 576 U. S. 1082. After
exhaustive briefng and argument on the question whether
Abood should be overruled, we affrmed the decision below
by an equally divided vote. 578 U. S. 1 (2016) (per curiam).
During this period of time, any public-sector union seeking
an agency-fee provision in a collective-bargaining agreement
must have understood that the constitutionality of such a
provision was uncertain.
That is certainly true with respect to the collectivebargaining
agreement in the present case. That agreement
initially ran from July 1, 2012, until June 30, 2015. App. 331.
Since then, the agreement has been extended pursuant to a
provision providing for automatic renewal for an additional
year unless either party gives timely notice that it desires
to amend or terminate the contract. Ibid. Thus, for the
928 JANUS v. STATE, COUNTY, AND MUNICIPAL
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Opinion of the Court
past three years, the Union could not have been confdent
about the continuation of the agency-fee arrangement for
more than a year at a time.
Because public-sector collective-bargaining agreements
are generally of rather short duration, a great many of those
now in effect probably began or were renewed since Knox
(2012) or Harris (2014). But even if an agreement antedates
those decisions, the union was able to protect itself if an
agency-fee provision was essential to the overall bargain. A
union's attorneys undoubtedly understand that if one provision
of a collective-bargaining agreement is found to be unlawful,
the remaining provisions are likely to remain in effect.
See NLRB v. Rockaway News Supply Co., 345 U. S.
71, 76–79 (1953); see also 8 R. Lord, Williston on Contracts
§ 19:70 (4th ed. 2010). Any union believing that an agencyfee
provision was essential to its bargain could have insisted
on a provision giving it greater protection. The agreement
in the present case, by contrast, provides expressly that the
invalidation of any part of the agreement “shall not invalidate
the remaining portions,” which “shall remain in full
force and effect.” App. 328. Such severability clauses ensure
that “entire contracts” are not “br[ought] down” by today's
ruling. Post, at 952, n. 5 (Kagan, J., dissenting).
In short, the uncertain status of Abood, the lack of clarity
it provides, the short-term nature of collective-bargaining
agreements, and the ability of unions to protect themselves
if an agency-fee provision was crucial to its bargain all work
to undermine the force of reliance as a factor supporting
Abood.27
27 The dissent emphasizes another type of reliance, namely, that “[o]ver
20 States have by now enacted statutes authorizing [agency-fee] provisions.”
Post, at 952. But as we explained in Citizens United, “[t]his is
not a compelling interest for stare decisis. If it were, legislative acts
could prevent us from overruling our own precedents, thereby interfering
with our duty `to say what the law is.' ” 558 U. S., at 365 (quoting Marbury
v. Madison, 1 Cranch 137, 177 (1803)). Nor does our decision “ `require
an extensive legislative response.' ” Post, at 952. States can keep
their labor-relations systems exactly as they are—only they cannot force
Cite as: 585 U. S. 878 (2018) 929
Opinion of the Court
* * *
We recognize that the loss of payments from nonmembers
may cause unions to experience unpleasant transition costs
in the short term, and may require unions to make adjustments
in order to attract and retain members. But we must
weigh these disadvantages against the considerable windfall
that unions have received under Abood for the past 41 years.
It is hard to estimate how many billions of dollars have
been taken from nonmembers and transferred to publicsector
unions in violation of the First Amendment. Those
unconstitutional exactions cannot be allowed to continue
indefnitely.
All these reasons—that Abood's proponents have abandoned
its reasoning, that the precedent has proved unworkable,
that it conficts with other First Amendment decisions,
and that subsequent developments have eroded its underpinnings—
provide the “ `special justifcation[s]' ” for overruling
Abood. Post, at 949 (Kagan, J., dissenting) (quoting Kimble
v. Marvel Entertainment, LLC, 576 U. S. 446, 456 (2015)).28
VII
For these reasons, States and public-sector unions may no
longer extract agency fees from nonconsenting employees.
nonmembers to subsidize public-sector unions. In this way, these States
can follow the model of the Federal Government and 28 other States.
28 Unfortunately, the dissent sees the need to resort to accusations that
we are acting like “black-robed rulers” who have shut down an “energetic
policy debate.” Post, at 956. We certainly agree that judges should not
“overrid[e] citizens' choices” or “pick the winning side,” ibid.—unless the
Constitution commands that they do so. But when a federal or state law
violates the Constitution, the American doctrine of judicial review
requires us to enforce the Constitution. Here, States with agencyfee
laws have abridged fundamental free speech rights. In holding that
these laws violate the Constitution, we are simply enforcing the First
Amendment as properly understood, “[t]he very purpose of [which] was to
withdraw certain subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and offcials and to establish
them as legal principles to be applied by the courts.” West Virginia Bd.
of Ed. v. Barnette, 319 U. S. 624, 638 (1943).
930 JANUS v. STATE, COUNTY, AND MUNICIPAL
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Sotomayor, J., dissenting
Under Illinois law, if a public-sector collective-bargaining
agreement includes an agency-fee provision and the union
certifes to the employer the amount of the fee, that amount
is automatically deducted from the nonmember's wages.
§ 315/6(e). No form of employee consent is required.
This procedure violates the First Amendment and cannot
continue. Neither an agency fee nor any other payment
to the union may be deducted from a nonmember's wages,
nor may any other attempt be made to collect such a payment,
unless the employee affrmatively consents to pay. By
agreeing to pay, nonmembers are waiving their First
Amendment rights, and such a waiver cannot be presumed.
Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see also Knox,
567 U. S., at 312–313. Rather, to be effective, the waiver
must be freely given and shown by “clear and compelling”
evidence. Curtis Publishing Co. v. Butts, 388 U. S. 130, 145
(1967) (plurality opinion); see also College Savings Bank v.
Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S.
666, 680–682 (1999). Unless employees clearly and affrmatively
consent before any money is taken from them, this
standard cannot be met.
* * *
Abood was wrongly decided and is now overruled. The
judgment of the United States Court of Appeals for the Seventh
Circuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Justice Sotomayor, dissenting.
I join Justice Kagan’s dissent in full. Although I joined
the majority in Sorrell v. IMS Health Inc., 564 U. S. 552
(2011), I disagree with the way that this Court has since
interpreted and applied that opinion. See, e. g., National
Institute of Family and Life Advocates v. Becerra, 585 U. S.
755 (2018). Having seen the troubling development in First
Cite as: 585 U. S. 878 (2018) 931
Kagan, J., dissenting
Amendment jurisprudence over the years, both in this Court
and in lower courts, I agree fully with Justice Kagan that
Sorrell—in the way it has been read by this Court—has allowed
courts to “wiel[d] the First Amendment in . . . an aggressive
way” just as the majority does today. Post, at 956.
Justice Kagan, with whom Justice Ginsburg, Justice
Breyer, and Justice Sotomayor join, dissenting.
For over 40 years, Abood v. Detroit Bd. of Ed., 431 U. S.
209 (1977), struck a stable balance between public employees'
First Amendment rights and government entities' interests
in running their workforces as they thought proper. Under
that decision, a government entity could require public employees
to pay a fair share of the cost that a union incurs
when negotiating on their behalf over terms of employment.
But no part of that fair-share payment could go to any of the
union's political or ideological activities.
That holding ft comfortably with this Court's general
framework for evaluating claims that a condition of public
employment violates the First Amendment. The Court's
decisions have long made plain that government entities
have substantial latitude to regulate their employees'
speech—especially about terms of employment—in the interest
of operating their workplaces effectively. Abood allowed
governments to do just that. While protecting public employees'
expression about non-workplace matters, the decision
enabled a government to advance important managerial
interests—by ensuring the presence of an exclusive employee
representative to bargain with. Far from an “anomaly,”
ante, at 891, the Abood regime was a paradigmatic example
of how the government can regulate speech in its
capacity as an employer.
Not any longer. Today, the Court succeeds in its 6-year
campaign to reverse Abood. See Friedrichs v. California
Teachers Assn., 578 U. S. 1 (2016) (per curiam); Harris v.
Quinn, 573 U. S. 616 (2014); Knox v. Service Employees, 567
932 JANUS v. STATE, COUNTY, AND MUNICIPAL
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Kagan, J., dissenting
U. S. 298 (2012). Its decision will have large-scale consequences.
Public employee unions will lose a secure source
of fnancial support. State and local governments that
thought fair-share provisions furthered their interests will
need to fnd new ways of managing their workforces.
Across the country, the relationships of public employees and
employers will alter in both predictable and wholly unexpected
ways.
Rarely if ever has the Court overruled a decision—
let alone one of this import—with so little regard for the
usual principles of stare decisis. There are no special justifcations
for reversing Abood. It has proved workable. No
recent developments have eroded its underpinnings. And it
is deeply entrenched, in both the law and the real world.
More than 20 States have statutory schemes built on the
decision. Those laws underpin thousands of ongoing contracts
involving millions of employees. Reliance interests
do not come any stronger than those surrounding Abood.
And likewise, judicial disruption does not get any greater
than what the Court does today. I respectfully dissent.
I
I begin with Abood, the 41-year-old precedent the majority
overrules. That case involved a union that had been certifed
as the exclusive representative of Detroit's public
school teachers. The union's collective-bargaining agreement
with the city included an “agency shop” clause, which
required teachers who had not joined the union to pay it “a
service charge equal to the regular dues required of [u]nion
members.” Abood, 431 U. S., at 212. A group of non-union
members sued over that clause, arguing that it violated the
First Amendment.
In considering their challenge, the Court canvassed the
purposes of the “agency shop” clause. It was rooted, the
Court understood, in the “principle of exclusive union representation”—
a “central element” in “industrial relations”
Cite as: 585 U. S. 878 (2018) 933
Kagan, J., dissenting
since the New Deal. Id., at 220. Signifcant benefts, the
Court explained, could derive from the “designation of a
single [union] representative” for all similarly situated employees
in a workplace. Ibid. In particular, such arrangements:
“avoid[ ] the confusion that would result from attempting
to enforce two or more agreements specifying
different terms and conditions of employment”; “prevent[ ]
inter-union rivalries from creating dissension within the
work force”; “free[ ] the employer from the possibility of facing
conficting demands from different unions”; and “permit[ ]
the employer and a single union to reach agreements and
settlements that are not subject to attack from rival labor
organizations.” Id., at 220–221. As proof, the Court
pointed to the example of exclusive-representation arrangements
in the private-employment sphere: There, Congress
had long thought that such schemes would promote “peaceful
labor relations” and “labor stability.” Id., at 219, 229. A
public employer like Detroit, the Court believed, could reasonably
make the same calculation.
But for an exclusive-bargaining arrangement to work, such
an employer often thought, the union needed adequate funding.
Because the “designation of a union as exclusive representative
carries with it great responsibilities,” the Court
reasoned, it inevitably also entails substantial costs. Id.,
at 221. “The tasks of negotiating and administering a
collective-bargaining agreement and representing the interests
of employees in settling disputes and processing grievances
are continuing and diffcult ones.” Ibid. Those activities,
the Court noted, require the “expenditure of much time
and money”—for example, payment for the “services of
lawyers, expert negotiators, economists, and a research staff.”
Ibid. And there is no way to confne the union's services to
union members alone (and thus to trim costs) because unions
must by law fairly represent all employees in a given bargaining
unit—union members and non-members alike. See
ibid.
934 JANUS v. STATE, COUNTY, AND MUNICIPAL
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Kagan, J., dissenting
With all that in mind, the Court recognized why both a
government entity and its union bargaining partner would
gravitate toward an agency-fee clause. Those fees, the
Court reasoned, “distribute fairly the cost” of collective bargaining
“among those who beneft”—that is, all employees
in the work unit. Id., at 222. And they “counteract[ ] the
incentive that employees might otherwise have to become
`free riders.' ” Ibid. In other words, an agency-fee provision
prevents employees from reaping all the “benefts of
union representation”—higher pay, a better retirement plan,
and so forth—while leaving it to others to bear the costs.
Ibid. To the Court, the upshot was clear: A government
entity could reasonably conclude that such a clause was
needed to maintain the kind of exclusive-bargaining arrangement
that would facilitate peaceful and stable labor relations.
But the Court acknowledged as well the “First Amendment
interests” of dissenting employees. Ibid. It recognized
that some workers might oppose positions the union
takes in collective bargaining, or even “unionism itself.”
Ibid. And still more, it understood that unions often advance
“political and ideological” views outside the collectivebargaining
context—as when they “contribute to political
candidates. ” Id., at 232, 234. Employees might well
object to the use of their money to support such “ideological
causes.” Id., at 235.
So the Court struck a balance, which has governed this
area ever since. On the one hand, employees could be required
to pay fees to support the union in “collective bargaining,
contract administration, and grievance adjustment.”
Id., at 225–226. There, the Court held, the “important government
interests” in having a stably funded bargaining
partner justify “the impingement upon” public employees'
expression. Id., at 225. But on the other hand, employees
could not be compelled to fund the union's political and ideological
activities. Outside the collective-bargaining sphere,
the Court determined, an employee's First Amendment
Cite as: 585 U. S. 878 (2018) 935
Kagan, J., dissenting
rights defeated any conficting government interest. See
id., at 234–235.
II
Unlike the majority, I see nothing “questionable” about
Abood's analysis. Ante, at 891 (quoting Harris, 573 U. S., at
635). The decision's account of why some government entities
have a strong interest in agency fees (now often called
fair-share fees) is fundamentally sound. And the balance
Abood struck between public employers' interests and public
employees' expression is right at home in First Amendment
doctrine.
A
Abood's reasoning about governmental interests has three
connected parts. First, exclusive-representation arrangements
beneft some government entities because they can
facilitate stable labor relations. In particular, such arrangements
eliminate the potential for inter-union confict and
streamline the process of negotiating terms of employment.
See 431 U. S., at 220–221. Second, the government may be
unable to avail itself of those benefts unless the single union
has a secure source of funding. The various tasks involved
in representing employees cost money; if the union doesn't
have enough, it can't be an effective employee representative
and bargaining partner. See id., at 221. And third, agency
fees are often needed to ensure such stable funding. That
is because without those fees, employees have every incentive
to free ride on the union dues paid by others. See id.,
at 222.
The majority does not take issue with the frst point. See
ante, at 916 (It is “not disputed that the State may require
that a union serve as exclusive bargaining agent for its
employees” in order to advance the State's “interests as an
employer”). The majority claims that the second point
never appears in Abood, but is willing to assume it for the
sake of argument. See ante, at 914–915; but see Abood, 431
936 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Kagan, J., dissenting
U. S., at 221 (The tasks of an exclusive representative “often
entail expenditure of much time and money”). So the majority
stakes everything on the third point—the conclusion
that maintaining an effective system of exclusive representation
often entails agency fees. Ante, at 896 (It “is simply
not true” that exclusive representation and agency fees are
“inextricably linked”); see ante, at 898.
But basic economic theory shows why a government would
think that agency fees are necessary for exclusive representation
to work. What ties the two together, as Abood
recognized, is the likelihood of free-riding when fees are absent.
Remember that once a union achieves exclusiverepresentation
status, the law compels it to fairly represent
all workers in the bargaining unit, whether or not they join
or contribute to the union. See supra, at 933. Because of
that legal duty, the union cannot give special advantages to
its own members. And that in turn creates a collective action
problem of nightmarish proportions. Everyone—not
just those who oppose the union, but also those who back
it—has an economic incentive to withhold dues; only altruism
or loyalty—as against fnancial self-interest—can explain
why an employee would pay the union for its services. And
so emerged Abood's rule allowing fair-share agreements:
That rule ensured that a union would receive suffcient funds,
despite its legally imposed disability, to effectively carry out
its duties as exclusive representative of the government's
employees.
The majority's initial response to this reasoning is simply
to dismiss it. “[F]ree-rider arguments, ” the majority
pronounces, “are generally insuffcient to overcome First
Amendment objections.” Ante, at 897 (quoting Knox, 567
U. S., at 311). “To hold otherwise,” it continues, “would
have startling consequences” because “[m]any private groups
speak out” in ways that will “beneft[ ] nonmembers.” Ante,
at 897. But that disregards the defning characteristic of this
free-rider argument—that unions, unlike those many other
Cite as: 585 U. S. 878 (2018) 937
Kagan, J., dissenting
private groups, must serve members and non-members alike.
Groups advocating for “senior citizens or veterans” (to use
the majority's examples) have no legal duty to provide benefts
to all those individuals: They can spur people to pay
dues by conferring all kinds of special advantages on their
dues-paying members. Unions are—by law—in a different
position, as this Court has long recognized. See, e. g.,
Machinists v. Street, 367 U. S. 740, 762 (1961). Justice
Scalia, responding to the same argument as the majority's,
may have put the point best. In a way that is true of no
other private group, the “law requires the union to carry”
non-members—“indeed, requires the union to go out of its
way to beneft [them], even at the expense of its other interests.”
Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 556
(1991) (opinion concurring in judgment in part and dissenting
in part). That special feature was what justifed Abood:
“Where the state imposes upon the union a duty to deliver
services, it may permit the union to demand reimbursement
for them.” 500 U. S., at 556.
The majority's fallback argument purports to respond to
the distinctive position of unions, but still misses Abood's
economic insight. Here, the majority delivers a four-page
exegesis on why unions will seek to serve as an exclusivebargaining
representative even “if they are not given agency
fees.” Ante, at 898; see ante, at 898–900. The gist of the
account is that “designation as the exclusive representative
confers many benefts,” which outweigh the costs of providing
services to non-members. Ante, at 898. But that response
avoids the key question, which is whether unions
without agency fees will be able to (not whether they will
want to) carry on as an effective exclusive representative.
And as to that question, the majority again fails to reckon
with how economically rational actors behave—in public as
well as private workplaces. Without a fair-share agreement,
the class of union non-members spirals upward. Employees
(including those who love the union) realize that they
938 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Kagan, J., dissenting
can get the same benefts even if they let their memberships
expire. And as more and more stop paying dues, those left
must take up the fnancial slack (and anyway, begin to feel
like suckers)—so they too quit the union. See Ichniowski &
Zax, Right-to-Work Laws, Free Riders, and Unionization in
the Local Public Sector, 9 J. Labor Economics 255, 257
(1991).1 And when the vicious cycle fnally ends, chances
are that the union will lack the resources to effectively perform
the responsibilities of an exclusive representative—or,
in the worst case, to perform them at all. The result is to
frustrate the interests of every government entity that
thinks a strong exclusive-representation scheme will promote
stable labor relations.
Of course, not all public employers will share that view.
Some would rather not bargain with an exclusive representative.
Others would prefer that representative to be poorly
funded—to serve more as a front than an effectual bargaining
partner. But as refected in the number of fair-share
statutes and contracts across the Nation, see supra, at 932,
many government entities think that effective exclusive representation
makes for good labor relations—and recognize,
just as Abood did, that representation of that kind often de-
1 The majority relies on statistics from the federal workforce (where
agency fees are unlawful) to suggest that public employees do not act in
accord with economic logic. See ante, at 896. But frst, many fewer federal
employees pay dues than have voted for a union to represent them,
indicating that free-riding in fact pervades the federal sector. See, e. g.,
R. Kearney & P. Mareschal, Labor Relations in the Public Sector 26 (5th
ed. 2014). And second, that sector is not typical of other public workforces.
Bargaining in the federal sphere is limited; most notably, it does
not extend to wages and benefts. See Fort Stewart Schools v. FLRA,
495 U. S. 641, 649 (1990). That means union operating expenses are lower
than they are elsewhere. And the gap further widens because the federal
sector uses large, often national, bargaining units that provide unions with
economies of scale. See Brief for International Brotherhood of Teamsters
as Amicus Curiae 7. For those reasons, the federal workforce is the
wrong place to look for meaningful empirical evidence on the issues here.
Cite as: 585 U. S. 878 (2018) 939
Kagan, J., dissenting
pends on agency fees. See, e. g., Harris, 573 U. S., at 679–
680 (Kagan, J., dissenting) (describing why Illinois thought
that bargaining with an adequately funded exclusive representative
of in-home caregivers would enable the State to
better serve its disabled citizens). Abood respected that
state interest; today's majority fails even to understand it.
Little wonder that the majority's First Amendment analysis,
which involves assessing the government's reasons for imposing
agency fees, also comes up short.
B
1
In many cases over many decades, this Court has addressed
how the First Amendment applies when the government,
acting not as sovereign but as employer, limits its
workers' speech. Those decisions have granted substantial
latitude to the government, in recognition of its signifcant
interests in managing its workforce so as to best serve the
public. Abood ft neatly with that caselaw, in both reasoning
and result. Indeed, its reversal today creates a signifcant
anomaly—an exception, applying to union fees alone, from
the usual rules governing public employees' speech.
“Time and again our cases have recognized that the Government
has a much freer hand” in dealing with its employees
than with “citizens at large.” NASA v. Nelson, 562 U. S.
134, 148 (2011) (internal quotation marks omitted). The
government, we have stated, needs to run “as effectively and
effciently as possible.” Engquist v. Oregon Dept. of Agriculture,
553 U. S. 591, 598 (2008) (internal quotation marks
omitted). That means it must be able, much as a private
employer is, to manage its workforce as it thinks ft. A public
employee thus must submit to “certain limitations on his
or her freedom.” Garcetti v. Ceballos, 547 U. S. 410, 418
(2006). Government workers, of course, do not wholly “lose
their constitutional rights when they accept their positions.”
940 JANUS v. STATE, COUNTY, AND MUNICIPAL
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Kagan, J., dissenting
Engquist, 553 U. S., at 600. But under our precedent, their
rights often yield when weighed “against the realities of
the employment context.” Ibid. If it were otherwise—if
every employment decision were to “bec[o]me a constitutional
matter ”—“ the Government could not function. ”
NASA, 562 U. S., at 149 (internal quotation marks omitted).
Those principles apply with full force when public employees'
expressive rights are at issue. As we have explained:
“Government employers, like private employers, need a signifcant
degree of control over their employees' words” in
order to “effcient[ly] provi[de] public services.” Garcetti,
547 U. S., at 418. Again, signifcant control does not mean
absolute authority. In particular, the Court has guarded
against government efforts to “leverage the employment relationship”
to shut down its employees' speech as private citizens.
Id., at 419. But when the government imposes
speech restrictions relating to workplace operations, of the
kind a private employer also would, the Court reliably upholds
them. See, e. g., id., at 426; Connick v. Myers, 461
U. S. 138, 154 (1983).
In striking the proper balance between employee speech
rights and managerial interests, the Court has long applied
a test originating in Pickering v. Board of Ed. of Township
High School Dist. 205, Will Cty., 391 U. S. 563 (1968). That
case arose out of an individual employment action: the fring
of a public school teacher. As we later described the Pickering
inquiry, the Court frst asks whether the employee
“spoke as a citizen on a matter of public concern.” Garcetti,
547 U. S., at 418. If she did not—but rather spoke as an
employee on a workplace matter—she has no “possibility of
a First Amendment claim”: A public employer can curtail
her speech just as a private one could. Ibid. But if she did
speak as a citizen on a public matter, the public employer
must demonstrate “an adequate justifcation for treating the
employee differently from any other member of the general
public.” Ibid. The government, that is, needs to show
Cite as: 585 U. S. 878 (2018) 941
Kagan, J., dissenting
that legitimate workplace interests lay behind the speech
regulation.
Abood coheres with that framework. The point here is
not, as the majority suggests, that Abood is an overt, oneto-
one “application of Pickering.” Ante, at 909. It is not.
Abood related to a municipality's labor policy, and so the
Court looked to prior cases about unions, not to Pickering's
analysis of an employee's dismissal. (And truth be told,
Pickering was not at that time much to look at: What the
Court now thinks of as the two-step Pickering test, as the
majority's own citations show, really emerged from Garcetti
and Connick—two cases post-dating Abood. See ante,
at 905.) 2 But Abood and Pickering raised variants of the
same basic issue: the extent of the government's authority
to make employment decisions affecting expression. And in
both, the Court struck the same basic balance, enabling the
government to curb speech when—but only when—the regulation
was designed to protect its managerial interests.
Consider the parallels:
Like Pickering, Abood drew the constitutional line by analyzing
the connection between the government's managerial
interests and different kinds of expression. The Court frst
discussed the use of agency fees to subsidize the speech involved
in “collective bargaining, contract administration, and
grievance adjustment.” 431 U. S., at 225–226. It understood
that expression (really, who would not?) as intimately
tied to the workplace and employment relationship. The
speech was about “working conditions, pay, discipline, promotions,
leave, vacations, and terminations,” Borough of
Duryea v. Guarnieri, 564 U. S. 379, 391 (2011); the speech
2 For those reasons, it is not surprising that the “categorization
schemes” in Abood and Pickering are not precisely coterminous. Ante,
at 909. The two cases are fraternal rather than identical twins—both
standing for the proposition that the government receives great deference
when it regulates speech as an employer rather than as a sovereign. See
infra this page and 942.
942 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Kagan, J., dissenting
occurred (almost always) in the workplace; and the speech
was directed (at least mainly) to the employer. As noted
earlier, Abood described the managerial interests of employers
in channeling all that speech through a single union.
See 431 U. S., at 220–222, 224–226; supra, at 932–933. And
so Abood allowed the government to mandate fees for collective
bargaining—just as Pickering permits the government
to regulate employees' speech on similar workplace matters.
But still, Abood realized that compulsion could go too far.
The Court barred the use of fees for union speech supporting
political candidates or “ideological causes.” 431 U. S., at
235. That speech, it understood, was “unrelated to [the
union's] duties as exclusive bargaining representative,” but
instead was directed at the broader public sphere. Id., at
234. And for that reason, the Court saw no legitimate managerial
interests in compelling its subsidization. The employees'
First Amendment claims would thus prevail—as,
again, they would have under Pickering.
Abood thus dovetailed with the Court's usual attitude in
First Amendment cases toward the regulation of public
employees' speech. That attitude is one of respect—even
solicitude—for the government's prerogatives as an employer.
So long as the government is acting as an employer—
rather than exploiting the employment relationship
for other ends—it has a wide berth, comparable to that
of a private employer. And when the regulated expression
concerns the terms and conditions of employment—the very
stuff of the employment relationship—the government really
cannot lose. There, managerial interests are obvious and
strong. And so government employees are . . . just employees,
even though they work for the government. Except
that today the government does lose, in a frst for the law.
Now, the government can constitutionally adopt all policies
regulating core workplace speech in pursuit of managerial
goals—save this single one.
Cite as: 585 U. S. 878 (2018) 943
Kagan, J., dissenting
2
The majority claims it is not making a special and unjustifed
exception. It offers two main reasons for declining to
apply here our usual deferential approach, as exemplifed in
Pickering, to the regulation of public employee speech.
First, the majority says, this case involves a “blanket” policy
rather than an individualized employment decision, so Pickering
is a “painful ft.” Ante, at 906–907. Second, the majority
asserts, the regulation here involves compelling rather
than restricting speech, so the pain gets sharper still. See
ante, at 908. And fnally, the majority claims that even
under the solicitous Pickering standard, the government
should lose, because the speech here involves a matter of
public concern and the government's managerial interests do
not justify its regulation. See ante, at 910–914. The majority
goes wrong at every turn.
First, this Court has applied the same basic approach
whether a public employee challenges a general policy or an
individualized decision. Even the majority must concede
that “we have sometimes looked to Pickering in considering
general rules that affect broad categories of employees.”
Ante, at 907. In fact, the majority cannot come up with any
case in which we have not done so. All it can muster is one
case in which while applying the Pickering test to a broad
rule—barring any federal employee from accepting any payment
for any speech or article on any topic—the Court noted
that the policy's breadth would count against the government
at the test's second step. See United States v. Treasury
Employees, 513 U. S. 454 (1995). Which is completely
predictable. The inquiry at that stage, after all, is whether
the government has an employment-related interest in going
however far it has gone—and in Treasury Employees, the
government had indeed gone far. (The Court ultimately
struck down the rule because it applied to speech in which
the government had no identifable managerial interest.
944 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Kagan, J., dissenting
See id., at 470, 477.) Nothing in Treasury Employees suggests
that the Court defers only to ad hoc actions, and not
to general rules, about public employee speech. That would
be a perverse regime, given the greater regularity of rulemaking
and the lesser danger of its abuse. So I would
wager a small fortune that the next time a general rule governing
public employee speech comes before us, we will dust
off Pickering.
Second, the majority's distinction between compelling and
restricting speech also lacks force. The majority posits that
compelling speech always works a greater injury, and so always
requires a greater justifcation. See ante, at 893. But
the only case the majority cites for that reading of our precedent
is possibly (thankfully) the most exceptional in our First
Amendment annals: It involved the state forcing children to
swear an oath contrary to their religious beliefs. See ibid.
(quoting West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624
(1943)). Regulations challenged as compelling expression
do not usually look anything like that—and for that reason,
the standard First Amendment rule is that the “difference
between compelled speech and compelled silence” is “without
constitutional signifcance.” Riley v. National Federation
of Blind of N. C., Inc., 487 U. S. 781, 796 (1988); see Wooley
v. Maynard, 430 U. S. 705, 714 (1977) (referring to “[t]he
right to speak and the right to refrain from speaking” as
“complementary components” of the First Amendment).
And if anything, the First Amendment scales tip the opposite
way when (as here) the government is not compelling
actual speech, but instead compelling a subsidy that others
will use for expression. See Brief for Eugene Volokh et al.
as Amici Curiae 4–5 (offering many examples to show that
the First Amendment “simply do[es] not guarantee that one's
hard-earned dollars will never be spent on speech one disapproves
of ”).3 So when a government mandates a speech
3 That's why this Court has blessed the constitutionality of compelled
speech subsidies in a variety of cases beyond Abood, involving a variety
of contexts beyond labor relations. The list includes mandatory fees imCite
as: 585 U. S. 878 (2018) 945
Kagan, J., dissenting
subsidy from a public employee—here, we might think of it
as levying a tax to support collective bargaining—it should
get at least as much deference as when it restricts the employee's
speech. As this case shows, the former may advance
a managerial interest as well as the latter—in which
case the government's “freer hand” in dealing with its
employees should apply with equal (if not greater) force.
NASA, 562 U. S., at 148.
Third and fnally, the majority errs in thinking that under
the usual deferential approach, the government should lose
this case. The majority mainly argues here that, at Pickering's
frst step, “union speech in collective bargaining” is a
“matter of great public concern” because it “affect[s] how
public money is spent” and addresses “other important matters”
like teacher merit pay or tenure. Ante, at 910–912 (internal
quotation marks omitted). But to start, the majority
misunderstands the threshold inquiry set out in Pickering
and later cases. The question is not, as the majority seems
to think, whether the public is, or should be, interested in
a government employee's speech. Instead, the question is
whether that speech is about and directed to the workplace—
as contrasted with the broader public square. Treasury
Employees offers the Court's fullest explanation. The
Court held there that the government's policy prevented employees
from speaking as “citizen[s]” on “matters of public
concern.” 513 U. S., at 466 (quoting Pickering, 391 U. S., at
568). Why? Because the speeches and articles “were addressed
to a public audience, were made outside the workplace,
and involved content largely unrelated to their Government
employment.” 513 U. S., at 466; see id., at 465, 470
(repeating that analysis twice more). The Court could not
posed on state bar members (for professional expression); university students
(for campus events); and fruit processors (for generic advertising).
See Keller v. State Bar of Cal., 496 U. S. 1, 14 (1990); Board of Regents of
Univ. of Wis. System v. Southworth, 529 U. S. 217, 233 (2000); Glickman
v. Wileman Brothers & Elliott, Inc., 521 U. S. 457, 474 (1997); see also
infra, at 949–950.
946 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Kagan, J., dissenting
have cared less whether the speech at issue was “important.”
Ante, at 912. It instead asked whether the speech was truly
of the workplace—addressed to it, made in it, and (most of
all) about it.
Consistent with that focus, speech about the terms and
conditions of employment—the essential stuff of collective
bargaining—has never survived Pickering's frst step. This
Court has rejected all attempts by employees to make a “federal
constitutional issue” out of basic “employment matters,
including working conditions, pay, discipline, promotions,
leave, vacations, and terminations.” Guarnieri, 564 U. S.,
at 391; see Board of Comm'rs, Wabaunsee Cty. v. Umbehr,
518 U. S. 668, 675 (1996) (stating that public employees'
“speech on merely private employment matters is unprotected”).
For that reason, even the Justices who originally
objected to Abood conceded that the use of agency fees for
bargaining on “economic issues” like “salaries and pension
benefts” would not raise signifcant First Amendment questions.
431 U. S., at 263, n. 16 (Powell, J., concurring in
judgment). Of course, most of those issues have budgetary
consequences: They “affect[ ] how public money is spent.”
Ante, at 912. And some raise important non-budgetary disputes;
teacher merit pay is a good example, see ante, at 913.
But arguing about the terms of employment is still arguing
about the terms of employment: The workplace remains both
the context and the subject matter of the expression. If all
that speech really counted as “of public concern,” as the majority
suggests, the mass of public employees' complaints
(about pay and benefts and workplace policy and such)
would become “federal constitutional issue[s].” Guarnieri,
564 U. S., at 391. And contrary to decades' worth of precedent,
government employers would then have far less control
over their workforces than private employers do. See
supra, at 939–941.
Consider an analogy, not involving union fees: Suppose a
government entity disciplines a group of (non-unionized) emCite
as: 585 U. S. 878 (2018) 947
Kagan, J., dissenting
ployees for agitating for a better health plan at various inopportune
times and places. The better health plan will of
course drive up public spending; so according to the majority's
analysis, the employees' speech satisfes Pickering's
“public concern” test. Or similarly, suppose a public employer
penalizes a group of (non-unionized) teachers who protest
merit pay in the school cafeteria. Once again, the majority's
logic runs, the speech is of “public concern,” so the
employees have a plausible First Amendment claim. (And
indeed, the majority appears to concede as much, by asserting
that the results in these hypotheticals should turn on
various “factual detail[s]” relevant to the interest balancing
that occurs at the Pickering test's second step. Ante, at
915, n. 23.) But in fact, this Court has always understood
such cases to end at Pickering's frst step: If an employee's
speech is about, in, and directed to the workplace, she has no
“possibility of a First Amendment claim.” Garcetti, 547
U. S., at 418; see supra, at 940. So take your pick. Either
the majority is exposing government entities across the
country to increased First Amendment litigation and liability—
and thus preventing them from regulating their workforces
as private employers could. Or else, when actual cases
of this kind come around, we will discover that today's majority
has crafted a “unions only” carve-out to our employeespeech
law.
What's more, the government should prevail even if the
speech involved in collective bargaining satisfes Pickering's
frst part. Recall that the next question is whether the government
has shown “an adequate justifcation for treating
the employee differently from any other member of the
general public.” Garcetti, 547 U. S., at 418; supra, at 940.
That inquiry is itself famously respectful of government
interests. This Court has reversed the government only
when it has tried to “leverage the employment relationship”
to achieve an outcome unrelated to the workplace's “effective
functioning.” Garcetti, 547 U. S., at 419; Rankin v. McPher948
JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Kagan, J., dissenting
son, 483 U. S. 378, 388 (1987). Nothing like that is true here.
As Abood described, many government entities have found
agency fees the best way to ensure a stable and productive
relationship with an exclusive-bargaining agent. See 431
U. S., at 220–221, 224–226; supra, at 933–934. And here, Illinois
and many governmental amici have explained again
how agency fees advance their workplace goals. See Brief
for State Respondents 12, 36; Brief for Governor Tom Wolf
et al. as Amici Curiae 21–33. In no other employee-speech
case has this Court dismissed such work-related interests, as
the majority does here. See supra, at 936–939 (discussing
the majority's refusal to engage with the logic of the State's
position). Time and again, the Court has instead respected
and acceded to those interests—just as Abood did.
The key point about Abood is that it ft naturally with
this Court's consistent teaching about the permissibility of
regulating public employees' speech. The Court allows a
government entity to regulate that expression in aid of managing
its workforce to effectively provide public services.
That is just what a government aims to do when it enforces
a fair-share agreement. And so, the key point about today's
decision is that it creates an unjustifed hole in the law, applicable
to union fees alone. This case is sui generis among
those addressing public employee speech—and will almost
surely remain so.
III
But the worse part of today's opinion is where the majority
subverts all known principles of stare decisis. The majority
makes plain, in the frst 33 pages of its decision, that it believes
Abood was wrong.4 But even if that were true (which
it is not), it is not enough. “Respecting stare decisis means
sticking to some wrong decisions.” Kimble v. Marvel Entertainment,
LLC, 576 U. S. 446, 455 (2015). Any departure
4 And then, after ostensibly turning to stare decisis, the majority spends
another four pages insisting that Abood was “not well reasoned,” which is
just more of the same. Ante, at 921; see ante, at 917–921.
Cite as: 585 U. S. 878 (2018) 949
Kagan, J., dissenting
from settled precedent (so the Court has often stated) demands
a “special justifcation—over and above the belief that
the precedent was wrongly decided.” Id., at 456 (internal
quotation marks omitted); see, e. g., Arizona v. Rumsey, 467
U. S. 203, 212 (1984). And the majority does not have anything
close. To the contrary: All that is “special” in this
case—especially the massive reliance interests at stake—demands
retaining Abood, beyond even the normal precedent.
Consider frst why these principles about precedent are
so important. Stare decisis—“the idea that today's Court
should stand by yesterday's decisions—is a foundation stone
of the rule of law. ” Kimble, 576 U. S., at 455 (quoting
Michigan v. Bay Mills Indian Community, 572 U. S.
782, 798 (2014)). It “promotes the evenhanded, predictable,
and consistent development” of legal doctrine. Payne v.
Tennessee, 501 U. S. 808, 827 (1991). It fosters respect for
and reliance on judicial decisions. See ibid. And it “contributes
to the actual and perceived integrity of the judicial
process,” ibid., by ensuring that decisions are “founded in
the law rather than in the proclivities of individuals,” Vasquez
v. Hillery, 474 U. S. 254, 265 (1986).
And Abood is not just any precedent: It is embedded in
the law (not to mention, as I'll later address, in the world) in
a way not many decisions are. Over four decades, this
Court has cited Abood favorably many times, and has affrmed
and applied its central distinction between the costs
of collective bargaining (which the government can charge to
all employees) and those of political activities (which it cannot).
See, e. g., Locke v. Karass, 555 U. S. 207, 213–214
(2009); Lehnert, 500 U. S., at 519; Teachers v. Hudson, 475
U. S. 292, 301–302 (1986); Ellis v. Railway Clerks, 466 U. S.
435, 455–457 (1984). Reviewing those decisions not a decade
ago, this Court—unanimously—called the Abood rule “a general
First Amendment principle.” Locke, 555 U. S., at 213.
And indeed, the Court has relied on that rule when deciding
cases involving compelled speech subsidies outside the labor
950 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Kagan, J., dissenting
sphere—cases today's decision does not question. See, e. g.,
Keller v. State Bar of Cal., 496 U. S. 1, 9–17 (1990) (state bar
fees); Board of Regents of Univ. of Wis. System v. Southworth,
529 U. S. 217, 230–232 (2000) (public university student
fees); Glickman v. Wileman Brothers & Elliott, Inc.,
521 U. S. 457, 471–473 (1997) (commercial advertising assessments);
see also n. 3, supra.
Ignoring our repeated validation of Abood, the majority
claims it has become “an outlier among our First Amendment
cases.” Ante, at 924. That claim fails most spectacularly
for reasons already discussed: Abood coheres with the Pickering
approach to reviewing regulation of public employees'
speech. See supra, at 941–942. Needing to stretch further,
the majority suggests that Abood conficts with “our political
patronage decisions.” Ante, at 926. But in fact those decisions
strike a balance much like Abood's. On the one hand,
the Court has enabled governments to compel policymakers
to support a political party, because that requirement (like
fees for collective bargaining) can reasonably be thought
to advance the interest in workplace effectiveness. See
Elrod v. Burns, 427 U. S. 347, 366–367 (1976); Branti v.
Finkel, 445 U. S. 507, 517 (1980). On the other hand, the
Court has barred governments from extending that rule to
non-policymaking employees because that application (like
fees for political campaigns) can't be thought to promote that
interest, see Elrod, 427 U. S., at 366; the government is instead
trying to “leverage the employment relationship” to
achieve other goals, Garcetti, 547 U. S., at 419. So all that
the majority has left is Knox and Harris. See ante, at
925. Dicta in those recent decisions indeed began the
assault on Abood that has culminated today. But neither
actually addressed the extent to which a public employer
may regulate its own employees' speech. Relying on them
is bootstrapping—and mocking stare decisis. Don't like a
decision? Just throw some gratuitous criticisms into a couple
of opinions and a few years later point to them as “special
justifcations.”
Cite as: 585 U. S. 878 (2018) 951
Kagan, J., dissenting
The majority is likewise wrong to invoke “workability” as
a reason for overruling Abood. Ante, at 921. Does Abood
require drawing a line? Yes, between a union's collectivebargaining
activities and its political activities. Is that line
perfectly and pristinely “precis[e],” as the majority demands?
Ante, at 921. Well, not quite that—but as exercises
of constitutional linedrawing go, Abood stands well
above average. In the 40 years since Abood, this Court has
had to resolve only a handful of cases raising questions about
the distinction. To my knowledge, the circuit courts are not
divided on any classifcation issue; neither are they issuing
distress signals of the kind that sometimes prompt the Court
to reverse a decision. See, e. g., Johnson v. United States,
576 U. S. 591 (2015) (overruling precedent because of frequent
splits and mass confusion). And that tranquility is
unsurprising: There may be some gray areas (there always
are), but in the mine run of cases, everyone knows the difference
between politicking and collective bargaining. The
majority cites some disagreement in two of the classifcation
cases this Court decided—as if non-unanimity among Justices
were something startling. And it notes that a dissenter
in one of those cases called the Court's approach “malleable”
and “not principled,” ante, at 921—as though those
weren't stock terms in dissenting vocabulary. See, e. g.,
Murr v. Wisconsin, 582 U. S. 383, 407 (2017) (Roberts, C. J.,
dissenting); Dietz v. Bouldin, 579 U. S. 40, 55 (2016)
(Thomas, J., dissenting); Alabama Legislative Black Caucus
v. Alabama, 575 U. S. 254, 294 (2015) (Scalia, J., dissenting).
As I wrote in Harris a few Terms ago: “If the kind of handwringing
about blurry lines that the majority offers were
enough to justify breaking with precedent, we might have
to discard whole volumes of the U. S. Reports.” 573 U. S.,
at 671.
And in any event, one stare decisis factor—reliance—
dominates all others here and demands keeping Abood.
Stare decisis, this Court has held, “has added force when the
legislature, in the public sphere, and citizens, in the private
952 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Kagan, J., dissenting
realm, have acted in reliance on a previous decision.” Hilton
v. South Carolina Public Railways Comm'n, 502 U. S.
197, 202 (1991). That is because overruling a decision would
then “require an extensive legislative response” or “dislodge
settled rights and expectations.” Ibid. Both will happen
here: The Court today wreaks havoc on entrenched legislative
and contractual arrangements.
Over 20 States have by now enacted statutes authorizing
fair-share provisions. To be precise, 22 States, the District
of Columbia, and Puerto Rico—plus another two States for
police and frefghter unions. Many of those States have
multiple statutory provisions, with variations for different
categories of public employees. See, e. g., Brief for State of
California as Amicus Curiae 24–25. Every one of them will
now need to come up with new ways—elaborated in new
statutes—to structure relations between government employers
and their workers. The majority responds, in a footnote
no less, that this is of no proper concern to the Court.
See ante, at 928–929, n. 27. But in fact, we have weighed
heavily against “abandon[ing] our settled jurisprudence”
that “[s]tate legislatures have relied upon” it and would have
to “reexamine [and amend] their statutes” if it were overruled.
Allied-Signal, Inc. v. Director, Div. of Taxation, 504
U. S. 768, 785 (1992); Hilton, 502 U. S., at 203.
Still more, thousands of current contracts covering millions
of workers provide for agency fees. Usually, this
Court recognizes that “[c]onsiderations in favor of stare decisis
are at their acme in cases involving property and contract
rights.” Payne, 501 U. S., at 828. Not today. The majority
undoes bargains reached all over the country.5 It
prevents the parties from fulfilling other commitments
they have made based on those agreements. It forces the
parties—immediately—to renegotiate once-settled terms
5 Indeed, some agency-fee provisions, if canceled, could bring down entire
contracts because they lack severability clauses. See ante, at 928
(noting that unions could have negotiated for that result); Brief for Governor
Tom Wolf et al. as Amici Curiae 11.
Cite as: 585 U. S. 878 (2018) 953
Kagan, J., dissenting
and create new tradeoffs. It does so knowing that many of
the parties will have to revise (or redo) multiple contracts
simultaneously. (New York City, for example, has agreed to
agency fees in 144 contracts with 97 public-sector unions.
See Brief for New York City Municipal Labor Committee as
Amicus Curiae 4.) It does so knowing that those renegotiations
will occur in an environment of legal uncertainty, as
state governments scramble to enact new labor legislation.
See supra, at 952. It does so with no real clue of what will
happen next—of how its action will alter public-sector labor
relations. It does so even though the government services
affected—policing, frefghting, teaching, transportation, sanitation
(and more)—affect the quality of life of tens of millions
of Americans.
The majority asserts that no one should care much because
the canceled agreements are “of rather short duration” and
would “expire on their own in a few years' time.” Ante,
at 927, 928. But to begin with, that response ignores the
substantial time and effort that state legislatures will have
to devote to revamping their statutory schemes. See supra,
at 952. And anyway, it misunderstands the nature of contract
negotiations when the parties have a continuing relationship.
The parties, in renewing an old collective-bargaining
agreement, don't start on an empty page. Instead, various
“long-settled” terms—like fair-share provisions—are taken
as a given. Brief for Governor Tom Wolf et al. 11; see Brief
for New York City Sergeants Benevolent Assn. as Amicus
Curiae 18. So the majority's ruling does more than advance
by a few years a future renegotiation (though even that
would be signifcant). In most cases, it commands new bargaining
over how to replace a term that the parties never
expected to change. And not just new bargaining; given the
interests at stake, complicated and possibly contentious bargaining
as well. See Brief for Governor Tom Wolf et al. 11.6
6 In a single, cryptic sentence, the majority also claims that arguments
about reliance “based on [Abood's] clarity are misplaced” because Abood
did not provide a “clear or easily applicable standard” to separate fees for
954 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Kagan, J., dissenting
The majority, though, offers another reason for not worrying
about reliance: The parties, it says, “have been on notice
for years regarding this Court's misgivings about Abood.”
Ante, at 927. Here, the majority proudly lays claim to its 6-
year crusade to ban agency fees. In Knox, the majority relates,
it described Abood as an “anomaly.” Ante, at 927
(quoting 567 U. S., at 311). Then, in Harris, it “cataloged
Abood's many weaknesses.” Ante, at 927. Finally, in
Friedrichs, “we granted a petition for certiorari asking us
to” reverse Abood, but found ourselves equally divided.
Ante, at 927. “During this period of time,” the majority
concludes, public-sector unions “must have understood that
the constitutionality of [an agency-fee] provision was uncertain.”
Ibid. And so, says the majority, they should have
structured their affairs accordingly.
But that argument refects a radically wrong understanding
of how stare decisis operates. Justice Scalia once
confronted a similar argument for “disregard[ing] reliance
interests” and showed how antithetical it was to rule-of-law
principles. Quill Corp. v. North Dakota, 504 U. S. 298, 320
(1992) (opinion concurring in part and concurring in judgment).
He noted frst what we always tell lower courts: “If
a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, [they] should follow the case which directly controls,
leaving to this Court the prerogative of overruling its
own decisions.” Id., at 321 (quoting Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U. S. 477, 484 (1989);
some alterations omitted). That instruction, Justice Scalia
explained, was “incompatible” with an expectation that “pricollective
bargaining from those for political activities. Ante, at 927.
But to begin, the standard for separating those activities was clear and
workable, as I have already shown. See supra, at 951. And in any event,
the reliance Abood engendered was based not on the clarity of that line,
but on the clarity of its holding that governments and unions could generally
agree to fair-share arrangements.
Cite as: 585 U. S. 878 (2018) 955
Kagan, J., dissenting
vate parties anticipate our overrulings.” 504 U. S., at 321.
He concluded: “[R]eliance upon a square, unabandoned holding
of the Supreme Court is always justifable reliance.”
Ibid. Abood's holding was square. It was unabandoned before
today. It was, in other words, the law—however much
some were working overtime to make it not. Parties, both
unions and governments, were thus justifed in relying on it.
And they did rely, to an extent rare among our decisions.
To dismiss the overthrowing of their settled expectations as
entailing no more than some “adjustments” and “unpleasant
transition costs,” ante, at 929, is to trivialize stare decisis.
IV
There is no sugarcoating today's opinion. The majority
overthrows a decision entrenched in this Nation's law—and
in its economic life—for over 40 years. As a result, it prevents
the American people, acting through their state and
local offcials, from making important choices about workplace
governance. And it does so by weaponizing the First
Amendment, in a way that unleashes judges, now and in the
future, to intervene in economic and regulatory policy.
Departures from stare decisis are supposed to be “exceptional
action[s]” demanding “special justifcation,” Rumsey,
467 U. S., at 212—but the majority offers nothing like that
here. In contrast to the vigor of its attack on Abood, the
majority's discussion of stare decisis barely limps to the fnish
line. And no wonder: The standard factors this Court
considers when deciding to overrule a decision all cut one
way. Abood's legal underpinnings have not eroded over
time: Abood is now, as it was when issued, consistent with
this Court's First Amendment law. Abood provided a workable
standard for courts to apply. And Abood has generated
enormous reliance interests. The majority has overruled
Abood for no exceptional or special reason, but because it
never liked the decision. It has overruled Abood because it
wanted to.
956 JANUS v. STATE, COUNTY, AND MUNICIPAL
EMPLOYEES
Kagan, J., dissenting
Because, that is, it wanted to pick the winning side in what
should be—and until now, has been—an energetic policy debate.
Some state and local governments (and the constituents
they serve) think that stable unions promote healthy
labor relations and thereby improve the provision of services
to the public. Other state and local governments (and their
constituents) think, to the contrary, that strong unions impose
excessive costs and impair those services. Americans
have debated the pros and cons for many decades—in large
part, by deciding whether to use fair-share arrangements.
Yesterday, 22 States were on one side, 28 on the other (ignoring
a couple of in-betweeners). Today, that healthy—that
democratic—debate ends. The majority has adjudged who
should prevail. Indeed, the majority is bursting with pride
over what it has accomplished: Now those 22 States, it crows,
“can follow the model of the federal government and 28 other
States.” Ante, at 928–929, n. 27.
And maybe most alarming, the majority has chosen the
winners by turning the First Amendment into a sword, and
using it against workaday economic and regulatory policy.
Today is not the frst time the Court has wielded the First
Amendment in such an aggressive way. See, e. g., National
Institute of Family and Life Advocates v. Becerra, 585 U. S.
755 (2018) (invalidating a law requiring medical and counseling
facilities to provide relevant information to users); Sorrell
v. IMS Health Inc., 564 U. S. 552 (2011) (striking down
a law that restricted pharmacies from selling various data).
And it threatens not to be the last. Speech is everywhere—
a part of every human activity (employment, health care,
securities trading, you name it). For that reason, almost all
economic and regulatory policy affects or touches speech.
So the majority's road runs long. And at every stop are
black-robed rulers overriding citizens' choices. The First
Amendment was meant for better things. It was meant not
to undermine but to protect democratic governance—including
over the role of public-sector unions.
OCTOBER TERM, 2017 957
Syllabus
SAUSE v. BAUER et al.
on petition for writ of certiorari to the united
states court of appeals for the tenth circuit
No. 17–742. Decided June 28, 2018
Two police offcers gained entry to petitioner's apartment while responding
to a noise complaint. Petitioner alleged the offcers engaged in abusive
conduct and ordered her to stop when she knelt and began to pray.
Petitioner fled a pro se complaint pursuant to 42 U. S. C. § 1983 asserting
violations of her First and Fourth Amendment rights. The District
Court granted defendants' motion to dismiss for failure to state a claim
on which relief could be granted. Petitioner's sole argument on appeal
was that her free exercise rights were violated by the two offcers who
entered her home. The Court of Appeals for the Tenth Circuit affrmed
the dismissal, concluding that the offcers were entitled to qualifed
immunity.
Held: Neither the free exercise issue nor the offcers' entitlement to qualifed
immunity can be resolved against petitioner consistent with the
requirement to liberally construe allegations in a pro se complaint.
While the First Amendment protects the right to pray, a police offcer
may lawfully prevent a person from praying at a particular time and
place. Here, the offcer's order to stop praying is alleged to have occurred
during the course of investigative conduct that implicates Fourth
Amendment rights. Petitioner's complaint contains no express allegations
regarding whether the police offcers were in petitioner's apartment
based on her consent, whether they had some other ground consistent
with the Fourth Amendment for entering and remaining there,
or whether their entry or continued presence was unlawful. Her complaint
does not state what, if anything, the offcers wanted her to do at
the time when she was allegedly told to stop praying. The analysis
of petitioner's free exercise claim depends on these issues. Although
petitioner elected on appeal not to pursue an independent Fourth
Amendment claim, her First Amendment claim demanded consideration
of the ground on which the offcers were present in the apartment and
the nature of any legitimate law enforcement interests that might have
justifed an order to stop praying at the specifc time in question. Without
considering these matters, neither the free exercise issue nor the
offcers' entitlement to qualifed immunity can be resolved.
Certiorari granted; 859 F. 3d 1270, reversed and remanded.
958 SAUSE v. BAUER
Per Curiam
Per Curiam.
Petitioner Mary Ann Sause, proceeding pro se, fled this
action under Rev. Stat. 1979, 42 U. S. C. § 1983, and named
as defendants past and present members of the Louisburg,
Kansas, police department, as well as the current mayor and
a former mayor of the town. The centerpiece of her complaint
was the allegation that two of the town's police offcers
visited her apartment in response to a noise complaint,
gained admittance to her apartment, and then proceeded to
engage in a course of strange and abusive conduct, before
citing her for disorderly conduct and interfering with law
enforcement. Among other things, she alleged that at one
point she knelt and began to pray but one of the offcers
ordered her to stop. She claimed that a third offcer refused
to investigate her complaint that she had been assaulted by
residents of her apartment complex and had threatened to
issue a citation if she reported this to another police department.
In addition, she alleged that the police chief failed to
follow up on a promise to investigate the offcers' conduct and
that the present and former mayors were aware of unlawful
conduct by the town's police offcers.
Petitioner's complaint asserted a violation of her First
Amendment right to the free exercise of religion and her
Fourth Amendment right to be free of any unreasonable
search or seizure. The defendants moved to dismiss the
complaint for failure to state a claim on which relief may be
granted, arguing that the defendants were entitled to qualifed
immunity. Petitioner then moved to amend her complaint,
but the District Court denied that motion and granted
the motion to dismiss.
On appeal, petitioner, now represented by counsel, argued
only that her free exercise rights were violated by the two
offcers who entered her home. The Court of Appeals for
the Tenth Circuit affrmed the decision of the District Court,
concluding that the offcers were entitled to qualifed immunity.
859 F. 3d 1270 (2017). Chief Judge Tymkovich fled a
Cite as: 585 U. S. 957 (2018) 959
Per Curiam
concurring opinion. While agreeing with the majority regarding
petitioner's First Amendment claim, he noted that
petitioner 's “allegations fit more neatly in the Fourth
Amendment context.” Id., at 1279. He also observed that
if the allegations in the complaint are true, the conduct of
the offcers “should be condemned,” and that if the allegations
are untrue, petitioner had “done the offcers a grave
injustice.” Ibid.
The petition fled in this Court contends that the Court of
Appeals erred in holding that the offcers who visited petitioner's
home are entitled to qualifed immunity. The petition
argues that it was clearly established that law enforcement
agents violate a person's right to the free exercise of
religion if they interfere, without any legitimate law enforcement
justifcation, when a person is at prayer. The petition
further maintains that the absence of a prior case involving
the unusual situation alleged to have occurred here does not
justify qualifed immunity.
There can be no doubt that the First Amendment protects
the right to pray. Prayer unquestionably constitutes the
“exercise” of religion. At the same time, there are clearly
circumstances in which a police offcer may lawfully prevent
a person from praying at a particular time and place. For
example, if an offcer places a suspect under arrest and orders
the suspect to enter a police vehicle for transportation
to jail, the suspect does not have a right to delay that trip
by insisting on frst engaging in conduct that, at another
time, would be protected by the First Amendment. When
an offcer's order to stop praying is alleged to have occurred
during the course of investigative conduct that implicates
Fourth Amendment rights, the First and Fourth Amendment
issues may be inextricable.
That is the situation here. As the case comes before us,
it is unclear whether the police offcers were in petitioner's
apartment at the time in question based on her consent,
whether they had some other ground consistent with the
960 SAUSE v. BAUER
Per Curiam
Fourth Amendment for entering and remaining there, or
whether their entry or continued presence was unlawful.
Petitioner's complaint contains no express allegations on
these matters. Nor does her complaint state what, if anything,
the offcers wanted her to do at the time when she
was allegedly told to stop praying. Without knowing the
answers to these questions, it is impossible to analyze petitioner's
free exercise claim.
In considering the defendants' motion to dismiss, the District
Court was required to interpret the pro se complaint
liberally, and when the complaint is read that way, it may be
understood to state Fourth Amendment claims that could not
properly be dismissed for failure to state a claim. We appreciate
that petitioner elected on appeal to raise only a
First Amendment argument and not to pursue an independent
Fourth Amendment claim, but under the circumstances,
the First Amendment claim demanded consideration of the
ground on which the offcers were present in the apartment
and the nature of any legitimate law enforcement interests
that might have justifed an order to stop praying at the
specifc time in question. Without considering these matters,
neither the free exercise issue nor the offcers' entitlement
to qualifed immunity can be resolved. Thus, petitioner's
choice to abandon her Fourth Amendment claim on
appeal did not obviate the need to address these matters.
For these reasons, we grant the petition for a writ of certiorari;
we reverse the judgment of the Tenth Circuit; and
we remand the case for further proceedings consistent with
this opinion.
It is so ordered.
OCTOBER TERM, 2017 961
Per Curiam
SEXTON, WARDEN v. BEAUDREAUX
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 17–1106. Decided June 28, 2018
A California jury found respondent Nicholas Beaudreaux guilty of frstdegree
murder in the 2006 shooting of Wayne Drummond. Beaudreaux's
conviction was affrmed on direct appeal, and his frst state
habeas petition was denied. In 2013, Beaudreaux fled a second state
habeas petition in which he claimed that his trial attorney was ineffective
for failing to fle a motion to suppress the identifcation testimony
of Dayo Esho, one of the witnesses to Drummond's shooting. The California
Court of Appeal summarily denied the petition, and the California
Supreme Court denied review. Petitioner then fled a federal habeas
petition, which the District Court denied. A split panel of the United
States Court of Appeals for the Ninth Circuit reversed on the ground
that the state court's rejection of respondent's claim of ineffective assistance
of counsel was objectively unreasonable.
Held: The Ninth Circuit's decision reversing the denial of habeas relief
ignored well-established principles. The Court's precedents applying
28 U. S. C. § 2254(d) require that when, as here, there is no reasoned
state-court decision on the merits, the federal court “must determine
what arguments or theories . . . could have supported the state court's
decision; and then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of this Court.” Harrington v. Richter,
562 U. S. 86, 102. If such disagreement is possible, then the petitioner's
claim must be denied. Ibid. The Ninth Circuit failed to properly apply
this standard. It did not consider reasonable grounds that could have
supported the state court's summary decision, and it analyzed respondent's
arguments without any meaningful deference to the state court.
Certiorari granted; 734 Fed. Appx. 387, reversed and remanded.
Per Curiam.
In this case, the United States Court of Appeals for the
Ninth Circuit reversed a denial of federal habeas relief, 28
U. S. C. § 2254, on the ground that the state court had unreasonably
rejected respondent's claim of ineffective assistance
of counsel. The Court of Appeals' decision ignored well962
SEXTON v. BEAUDREAUX
Per Curiam
established principles. It did not consider reasonable
grounds that could have supported the state court's summary
decision, and it analyzed respondent's arguments without
any meaningful deference to the state court. Accordingly,
the petition for certiorari is granted, and the judgment
of the Court of Appeals is reversed.
I
Respondent Nicholas Beaudreaux shot and killed Wayne
Drummond during a late-night argument in 2006. Dayo
Esho and Brandon Crowder were both witnesses to the
shooting. The next day, Crowder told the police that he
knew the shooter from middle school, but did not know the
shooter's name. Esho described the shooter, but also did
not know his name. Seventeen months later, Crowder was
arrested for an unrelated crime. While Crowder was in custody,
police showed him a middle-school yearbook with Beaudreaux's
picture, as well as a photo lineup including Beaudreaux.
Crowder identifed Beaudreaux as the shooter in
the Drummond murder.
Offcers interviewed Esho the next day. They frst spoke
with him during his lunch break. They showed him a display
that included a recent picture of Beaudreaux and pictures of
fve other men. Esho tentatively identifed Beaudreaux as
the shooter, saying his picture “was `closest' to the gunman.”
Beaudreaux v. Soto, 734 Fed. Appx. 387, 389 (CA9 2017).
Later that day, one of the offcers found another photograph
of Beaudreaux that was taken “closer to the date” of the shooting.
Record ER 263. Beaudreaux looked different in the
two photographs. In the frst, “ `his face [was] a little wider
and his head [was] a little higher.' ” Id., at ER 262. Between
four and six hours after the frst interview, the offcers returned
to show Esho a second six-man photo lineup, which contained
the older picture of Beaudreaux. Beaudreaux's photo
was in a different position in the lineup than it had been in the
frst one. Esho again identifed Beaudreaux as the shooter,
Cite as: 585 U. S. 961 (2018) 963
Per Curiam
telling the offcers that the second picture was “ `very close.' ”
Id., at ER 264. But he again declined to positively state
that Beaudreaux was the shooter. Esho was hesitant because
there were “a few things” he remembered about the
shooter that would require seeing him in person. Id., at ER
283–ER 284. At a preliminary hearing, Esho identifed
Beaudreaux as the shooter. At trial, Esho explained that it
“clicked” when he saw Beaudreaux in person based on “the
way that he walked.” Id., at ER 285. After seeing him in
person, Esho was “sure” that Beaudreaux was the shooter.
Ibid. At no time did any investigator or prosecutor suggest
to Esho that Beaudreaux was the one who shot Drummond.
Ibid.
Beaudreaux was tried in 2009 for frst-degree murder and
attempted second-degree robbery. Esho and Crowder both
testifed against Beaudreaux and both identifed him as
Drummond's shooter. The jury found Beaudreaux guilty,
and the trial court sentenced him to a term of 50 years to
life. Beaudreaux's conviction was affrmed on direct appeal,
and his frst state habeas petition was denied.
In 2013, Beaudreaux fled a second state habeas petition.
He claimed, among other things, that his trial attorney was
ineffective for failing to fle a motion to suppress Esho's identifcation
testimony. The California Court of Appeal summarily
denied the petition, and the California Supreme Court
denied review. Beaudreaux then fled a federal habeas petition,
which the District Court denied.
A divided panel of the Ninth Circuit reversed. The panel
majority spent most of its opinion conducting a de novo
analysis of the merits of the would-be suppression motion—
relying in part on arguments and theories that Beaudreaux
had not presented to the state court in his second state
habeas petition. See 734 Fed. Appx. 387; Record ER 153–
ER 154. It frst determined that counsel's failure to fle
the suppression motion constituted defcient performance.
See 734 Fed. Appx., at 389. The circumstances surround964
SEXTON v. BEAUDREAUX
Per Curiam
ing Esho's pretrial identifcation were “unduly suggestive,”
according to the Ninth Circuit, because only Beaudreaux's
picture was in both photo lineups. Ibid. And, relying on
Ninth Circuit precedent, the panel majority found that the
preliminary hearing was unduly suggestive as well. Ibid.
(quoting Johnson v. Sublett, 63 F. 3d 926, 929 (CA9 1995)).
The panel majority next concluded that, under the totality
of the circumstances, Esho's identifcation was not reliable
enough to overcome the suggestiveness of the procedures.
734 Fed. Appx., at 389–390. The panel majority then determined
that counsel's failure to fle the suppression motion
prejudiced Beaudreaux, given the weakness of the State's
case. Id., at 390. After conducting this de novo analysis of
Beaudreaux's ineffectiveness claim, the panel majority asserted
that the state court's denial of this claim was not just
wrong, but objectively unreasonable under § 2254(d). See
id., at 390–391. Judge Gould dissented. He argued that
the state court could have reasonably concluded that Beaudreaux
had failed to prove prejudice. Id., at 391.
The State of California petitioned for certiorari.
II
Under the Antiterrorism and Effective Death Penalty Act
of 1996, a federal court cannot grant habeas relief “with
respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the
claim . . . resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by” this Court, or “a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.”
§ 2254(d). When, as here, there is no reasoned statecourt
decision on the merits, the federal court “must determine
what arguments or theories . . . could have supported . . .
the state court's decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguCite
as: 585 U. S. 961 (2018) 965
Per Curiam
ments or theories are inconsistent with the holding in a prior
decision of this Court.” Harrington v. Richter, 562 U. S.
86, 102 (2011). If such disagreement is possible, then the
petitioner's claim must be denied. Ibid. We have often
emphasized that “this standard is diffcult to meet” “because
it was meant to be.” Ibid.; e. g., Burt v. Titlow, 571 U. S.
12, 20 (2013). The Ninth Circuit failed to properly apply
this standard.
A
To prove ineffective assistance of counsel, a petitioner
must demonstrate both defcient performance and prejudice.
Strickland v. Washington, 466 U. S. 668, 687 (1984). The
state court's denial of relief in this case was not an unreasonable
application of Strickland. A fairminded jurist could
conclude that counsel's performance was not defcient because
counsel reasonably could have determined that the motion
to suppress would have failed. See Premo v. Moore,
562 U. S. 115, 124 (2011).1
This Court has previously described “the approach appropriately
used to determine whether the Due Process Clause
requires suppression of an eyewitness identifcation tainted
by police arrangement.” Perry v. New Hampshire, 565
U. S. 228, 238 (2012). In particular, the Court has said that
“due process concerns arise only when law enforcement offcers
use[d] an identifcation procedure that is both suggestive
and unnecessary.” Id., at 238–239 (citing Manson v. Braithwaite,
432 U. S. 98, 107, 109 (1977), and Neil v. Biggers, 409
U. S. 188, 198 (1972); emphasis added). To be “ `impermissibly
suggestive,' ” the procedure must “ `give rise to a very
substantial likelihood of irreparable misidentifcation.' ” Id.,
at 197 (quoting Simmons v. United States, 390 U. S. 377, 384
1 Judge Gould found that the state court could have reasonably concluded
that Beaudreaux failed to prove prejudice because the weight of
the evidence against him—even without Esho's identifcation—would have
been suffcient to ensure his conviction. See Beaudreaux v. Soto, 734 Fed.
Appx. 387, 391 (CA9 2017). We need not reach that issue.
966 SEXTON v. BEAUDREAUX
Per Curiam
(1968)). It is not enough that the procedure “may have in
some respects fallen short of the ideal.” Id., at 385–386.
Even when an unnecessarily suggestive procedure was used,
“suppression of the resulting identifcation is not the inevitable
consequence.” Perry, 565 U. S., at 239. Instead, “the
Due Process Clause requires courts to assess, on a caseby-
case basis, whether improper police conduct created a
`substantial likelihood of misidentifcation.' ” Ibid. (quoting
Biggers, supra, at 201). “ `[R]eliability [of the eyewitness
identifcation] is the linchpin' of that evaluation.” Perry,
supra, at 239 (quoting Manson, 432 U. S., at 114; alterations
in original). The factors affecting reliability include “the
opportunity of the witness to view the criminal at the time
of the crime, the witness' degree of attention, the accuracy
of his prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the
crime and the confrontation.” Id., at 114. This Court has
held that pretrial identifcation procedures violated the Due
Process Clause only once, in Foster v. California, 394 U. S.
440 (1969). There, the police used two highly suggestive
lineups and “a one-to-one confrontation,” which “made it all
but inevitable that [the witness] would identify [the defendant].”
Id., at 443.2
In this case, there is at least one theory that could have
led a fairminded jurist to conclude that the suppression motion
would have failed. See Richter, supra, at 102.3 The
2 In the frst lineup, the suspect was nearly six inches taller than the
other two men in the lineup, and was the only one wearing a leather jacket
like the one the witness described the robber as wearing. Foster, 394
U. S., at 441, 443. Police then arranged a “one-to-one confrontation” in
which the witness sat in the same room as the suspect and spoke to him.
Id., at 441. And in the second lineup, the suspect was the only one in the
fve-man lineup who had been in the original lineup. Id., at 441–442.
3 Because our decision merely applies 28 U. S. C. § 2254(d)(1), it takes no
position on the underlying merits and does not decide any other issue.
See Kernan v. Cuero, 583 U. S. 1, 9 (2017) (per curiam); Marshall v. Rodgers,
569 U. S. 58, 64 (2013) (per curiam).
Cite as: 585 U. S. 961 (2018) 967
Per Curiam
state court could have reasonably concluded that Beaudreaux
failed to prove that, “under the `totality of the circumstances,'
” the identifcation was not “reliable.” Biggers,
supra, at 199. Beaudreaux's claim was facially defcient because
his state habeas petition failed to even address this
requirement. See Record ER 153–ER 154. And the state
court could have reasonably concluded that the totality of
the circumstances tipped against Beaudreaux. True, Esho
gave a vague initial description of the shooter, see Manson,
supra, at 115 (noting the detailed physical description the
witness gave “minutes after”), and there was a 17-month
delay between the shooting and the identifcation, see Biggers,
supra, at 201 (determining that “a lapse of seven
months . . . would be a seriously negative factor in most
cases”). But, as the District Court found, Esho had a good
opportunity to view the shooter, having talked to Beaudreaux
immediately after the shooting. See App. to Pet. for
Cert. 66a. He also was paying attention during the crime
and even remembered Beaudreaux's distinctive walk. See
id., at 64a, 66a. Esho demonstrated a high overall level of
certainty in his identifcation. He chose Beaudreaux's picture
in both photo lineups, and he was “sure” about his identifcation
once he saw Beaudreaux in person. Record ER
285; App. to Pet. for Cert. 63a–64a, 66a. There also was
“little pressure” on Esho to make a particular identifcation.
Manson, supra, at 116. It would not have been “ ` “objectively
unreasonable” ' ” to weigh the totality of these circumstances
against Beaudreaux. White v. Woodall, 572 U. S.
415, 419 (2014).
B
The Ninth Circuit's opinion was not just wrong. It also
committed fundamental errors that this Court has repeatedly
admonished courts to avoid.
First, the Ninth Circuit effectively inverted the rule established
in Richter. Instead of considering the “arguments or
theories [that] could have supported” the state court's sum968
SEXTON v. BEAUDREAUX
Per Curiam
mary decision, 562 U. S., at 102, the Ninth Circuit considered
arguments against the state court's decision that Beaudreaux
never even made in his state habeas petition.
Additionally, the Ninth Circuit failed to assess Beaudreaux's
ineffectiveness claim with the appropriate amount
of deference. The Ninth Circuit essentially evaluated the
merits de novo, only tacking on a perfunctory statement at
the end of its analysis asserting that the state court's decision
was unreasonable. But deference to the state court
should have been near its apex in this case, which involves a
Strickland claim based on a motion that turns on general,
fact-driven standards such as suggestiveness and reliability.
The Ninth Circuit's analysis did not follow this Court's repeated
holding that, “ `[t]he more general the rule . . . the
more leeway [state] courts have.' ” Renico v. Lett, 559 U. S.
766, 776 (2010) (brackets in original). Nor did it follow this
Court's precedents stating that, “because the Strickland
standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not
satisfed that standard.” Knowles v. Mirzayance, 556 U. S.
111, 123 (2009). The Ninth Circuit's essentially de novo
analysis disregarded this deferential standard.
* * *
The petition for a writ of certiorari and respondent's motion
to proceed in forma pauperis are granted. The judgment
of the United States Courts of Appeals for the Ninth
Circuit is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Breyer dissents.
OCTOBER TERM, 2017 969
Syllabus
NORTH CAROLINA et al. v. COVINGTON et al.
on appeal from the united states district court for
the middle district of north carolina
No. 17–1364. Decided June 28, 2018
In earlier proceedings in this case, this Court summarily affrmed a District
Court's judgment that the North Carolina General Assembly's 2011
redistricting plan resulted in racially gerrymandered districts. At the
same time, the Court vacated the District Court's remedial order—
which, among other things, directed the General Assembly to adopt new
districting maps—fnding the order was based on only the “most cursory”
review of the equitable balance involved in court-ordered special
elections. North Carolina v. Covington, 581 U. S. 486, 488 (per curiam).
On remand, the District Court ordered the General Assembly
to draw remedial maps for the State House and State Senate. Plaintiffs
objected to the newly drawn maps, arguing that four legislative districts—
Senate Districts 21 and 28 and House Districts 21 and 57—still
segregated voters on the basis of race and that fve State House districts
in Wake and Mecklenburg Counties were revised in a manner that constituted
mid-decade redistricting in violation of the North Carolina Constitution.
The District Court appointed a Special Master to redraw the
lines of the districts to which the plaintiffs objected. Upon receipt of
the Special Master's report, the District Court sustained the plaintiffs'
objections, adopted the Special Master's recommended reconfguration,
and directed the defendants to implement the Special Master's recommended
district lines and to conduct elections accordingly. See 283 F.
Supp. 3d 410, 414. With respect to Senate Districts 21 and 28 and
House Districts 21 and 57, the District Court found that the General
Assembly's remedial plans as to those districts were unconstitutional in
part because they retained the core shape of districts the District Court
had earlier found to be unconstitutional and perpetuated the effects of
the racial gerrymander. Id., at 438–439. The District Court then sustained
the plaintiffs' remaining objection that several House districts in
Wake and Mecklenburg Counties had been redrawn unnecessarily in
violation of the North Carolina Constitution's prohibition on mid-decade
redistricting. See id., at 443. The defendants applied to the Court for
a stay pending appeal, and the Court granted a stay with respect
to implementation of the Special Master's remedial districts in Wake
and Mecklenburg Counties, but otherwise denied the application. 583
U. S. 1109.
970 NORTH CAROLINA v. COVINGTON
Per Curiam
Held: The District Court's order is affrmed in part and reversed in part.
The order is affrmed insofar as it provided a court-drawn remedy for
Senate Districts 21 and 28 and House Districts 21 and 57. First, the
District Court had jurisdiction to enter a remedial order in this case.
The plaintiffs' racial gerrymandering claims did not cease to exist when
the North Carolina General Assembly enacted remedial plans and repealed
the old plans. Because plaintiffs assert that they continue to be
racially segregated under the remedial plans, their claims remained the
subject of a live dispute. Second, the District Court's conclusion that
those four districts unconstitutionally sort voters on the basis of race is
not undermined by the fact that the 2017 legislature instructed its map
drawers not to look at race when crafting a remedial map. The District
Court's detailed, district-by-district factfnding turned up suffcient circumstantial
evidence that race was the predominant factor governing
the shape of those four districts. See Miller v. Johnson, 515 U. S. 900,
916. Third, the District Court did not abuse its discretion by arranging
for the Special Master to draw up an alternative remedial map instead
of giving the General Assembly another chance. The District Court
had its own duty to cure illegally gerrymandered districts through an
orderly process in advance of the upcoming election cycle. See Purcell
v. Gonzalez, 549 U. S. 1, 4–5 (per curiam).
The District Court's order is reversed as to the legislature's redrawing
of House districts in Wake and Mecklenburg Counties. The District
Court redrew those districts because it found that the legislature's revision
of them violated the North Carolina Constitution's ban on middecade
redistricting. The District Court's decision to override the legislature's
remedial map on that basis was clear error. See Burns v.
Richardson, 384 U. S. 73, 85. The District Court's remedial authority
was limited to ensuring that the plaintiffs were relieved of the burden of
voting in racially gerrymandered legislative districts. Once the court
ensured that the racial gerrymanders at issue were remedied, its proper
role in the legislative districting process was at an end.
283 F. Supp. 3d 410, affrmed in part and reversed in part.
Per Curiam.
This appeal arises from a remedial redistricting order entered
by the District Court in a racial gerrymandering case
we have seen before. The case concerns the redistricting
of state legislative districts by the North Carolina General
Assembly in 2011, in response to the 2010 census. A group
of plaintiff voters, appellees here, alleged that the General
Cite as: 585 U. S. 969 (2018) 971
Per Curiam
Assembly racially gerrymandered their districts when—in
an ostensible effort to comply with the requirements of the
Voting Rights Act of 1965—it drew 28 State Senate and
State House of Representatives districts comprising majorities
of black voters. The District Court granted judgment
to the plaintiffs, and we summarily affrmed that judgment.
See Covington v. North Carolina, 316 F. R. D. 117 (MDNC
2016), summarily aff 'd, 581 U. S. 1015 (2017).
At the same time, however, we vacated the District
Court's remedial order, which directed the General Assembly
to adopt new districting maps, shortened by one year the
terms of the legislators currently serving in the gerrymandered
districts, called for special elections in those districts,
and suspended two provisions of the North Carolina Constitution.
See North Carolina v. Covington, 581 U. S. 486, 487
(2017) (per curiam). The District Court ordered all of this,
we noted, after undertaking only the “most cursory” review
of the equitable balance involved in court-ordered special
elections. Id., at 488. Having found that the District
Court's discretion “ `was barely exercised,' ” we remanded
the case for further remedial proceedings. Id., at 489 (quoting
Winter v. Natural Resources Defense Council, Inc., 555
U. S. 7, 27 (2008)).
On remand, the District Court ordered the General Assembly
to draw remedial maps for the State House and State
Senate within a month, and to fle those maps in the District
Court for approval. The General Assembly complied after
directing its map drawers to, among other things, make
“[r]easonable efforts . . . to avoid pairing incumbent members
of the House [and] Senate” and not to use “[d]ata identifying
the race of individuals or voters” in the drawing of the new
districts. 283 F. Supp. 3d 410, 417–418 (MDNC 2018) (per
curiam). The plaintiffs fled objections to the new maps.
They argued that four legislative districts—Senate Districts
21 and 28 and House Districts 21 and 57—still segregated
voters on the basis of race. The plaintiffs also objected to
972 NORTH CAROLINA v. COVINGTON
Per Curiam
the General Assembly's decision to redraw fve State House
districts situated in Wake and Mecklenburg Counties. They
argued that those fve districts “did not violate the [U. S.]
Constitution, [and] did not abut a district violating the [U. S.]
Constitution.” Id., at 443. Thus, they contended, the revision
of the borders of those districts constituted mid-decade
redistricting in violation of the North Carolina Constitution.
See Art. II, § 5(4); Commissioners of Granville County v.
Ballard, 69 N. C. 18, 20–21 (1873).
After some consideration of these objections, the District
Court appointed a Special Master to redraw the lines of the
districts to which the plaintiffs objected, along with any nonadjacent
districts to the extent “necessary” to comply with
districting criteria specifed by the District Court. App. to
Juris. Statement 106–107. Those criteria included adherence
to the “county groupings” used by the legislature in its
remedial plan and to North Carolina's “Whole County Provision
as interpreted by the North Carolina Supreme Court.”
Id., at 108. The District Court further instructed the Special
Master to make “reasonable efforts to adhere to . . . state
policy objectives” by creating relatively compact districts
and by avoiding split municipalities and precincts. Id., at
108–109. The District Court also permitted the Special
Master to “adjust district lines to avoid pairing any incumbents
who have not publicly announced their intention not to
run in 2018” and to “consider data identifying the race of
individuals or voters to the extent necessary to ensure that
his plan cures the unconstitutional racial gerrymanders.”
Id., at 109–111.
Upon receipt of the Special Master's report, the District
Court sustained the plaintiffs' objections and adopted the
Special Master's recommended reconfguration of the state
legislative maps. See 283 F. Supp. 3d, at 414. With respect
to Senate Districts 21 and 28 and House Districts 21 and 57,
the District Court found that those districts, as redrawn by
the legislature, “retain[ed] the core shape” of districts that
Cite as: 585 U. S. 969 (2018) 973
Per Curiam
it had earlier found to be unconstitutional. Id., at 436; see
id., at 439–442. The District Court noted, for instance, that
the legislature's remedial plan for Senate District 21 copied
the prior plan's “horseshoe-shaped section of the city of Fayetteville,”
which “include[d] Fayetteville's predominantly
black [voting districts] and blocks and exclude[d] Fayetteville's
predominantly white [voting districts] and blocks.”
Id., at 436. Although the defendants explained that the new
district was designed to “ `preserve the heart of Fayetteville,'
” the District Court found that they had “fail[ed] to
provide any explanation or evidence as to why `preserving
the heart of Fayetteville' required the exclusion of numerous
majority-white precincts in downtown Fayetteville from the
remedial district.” Ibid. (alterations omitted). Likewise,
the District Court found that the legislature's remedial version
of Senate District 28, though it “encompasse[d] only a
portion of [the city of] Greensboro,” nevertheless “encompasse[
d] all of the majority black [voting districts] within
Greensboro,” while “exclud[ing] predominantly white sections
of Greensboro,” and “reach[ing] out of Greensboro's city
limits to capture predominantly African-American areas in
eastern Guilford County.” Id., at 438. By choosing to preserve
the shape of the district's “ `anchor ' ” in eastern
Greensboro, the District Court found, the General Assembly
had “ensured that the district would retain a high [black voting
age population], thereby perpetuating the effects of the
racial gerrymander.” Id., at 438–439.
The District Court made similar fndings with respect to
the legislature's remedial House Districts 21 and 57. House
District 21, it found, “(1) preserve[d] the core shape of . . .
the previously unconstitutional district, (2) include[d] all but
one of the majority-black [voting districts] in the two counties
through which it [ran], (3) divide[d] a municipality and
precinct along racial lines, [and] (4) ha[d] an irregular shape
that correspond[ed] to the racial make-up of the geographic
area.” Id., at 439–440. In light of this and other evidence,
974 NORTH CAROLINA v. COVINGTON
Per Curiam
the District Court concluded that House District 21 “continue[
d] to be a racial gerrymander.” Id., at 440. House District
57, the District Court found, likewise inexplicably
“divide[d] the city of Greensboro along racial lines,” id., at
442, and otherwise preserved features of the previously invalidated
2011 maps. The District Court thus concluded
that the General Assembly's remedial plans as to those districts
were unconstitutional. Ibid.
The District Court then sustained the plaintiffs' remaining
objection that several House districts in Wake and Mecklenburg
Counties had been redrawn unnecessarily in violation
of the North Carolina Constitution's prohibition on middecade
redistricting. See id., at 443 (citing Art. II, § 5(4)).
The court reasoned that the prohibition “preclude[d] the
General Assembly from engaging in mid-decade redistricting”
except to the extent “required by federal law or a judicial
order.” 283 F. Supp. 3d, at 443. It noted further that,
“[w]hen a court must draw remedial districts itself, this
means that a court may redraw only those districts necessary
to remedy the constitutional violation,” ibid. (citing
Upham v. Seamon, 456 U. S. 37, 40–41 (1982) (per curiam)),
and that “Upham requires that a federal district court's remedial
order not unnecessarily interfere with state redistricting
choices,” 283 F. Supp. 3d, at 443. This remedial
principle informed the District Court's conclusion that “the
General Assembly [had] exceeded its authority under [the
District Court's remedial] order by disregarding the middecade
redistricting prohibition,” since the legislature had
failed to “put forward any evidence showing that revising
any of the fve Wake and Mecklenburg County House districts
challenged by Plaintiffs was necessary to remedy the
racially gerrymandered districts in those two counties.”
Id., at 444.
Finally, the District Court adopted the Special Master's
recommended replacement plans for the districts to which
the plaintiffs had objected. In adopting those recommendaCite
as: 585 U. S. 969 (2018) 975
Per Curiam
tions, the District Court turned away the defendants' argument
that they were built on “specifc . . . quota[s]” of black
voters in each reconstituted district. Id., at 448–449. The
District Court instead credited the Special Master's submission
that his “ `remedial districts were drawn not with any
racial target in mind, but in order to maximize compactness,
preserve precinct boundaries, and respect political subdivision
lines,' ” and that the remedial map was the product
of “ `explicitly race-neutral criteria.' ” Id., at 449. The District
Court directed the defendants to implement the Special
Master's recommended district lines and to conduct elections
accordingly.
The defendants applied to this Court for a stay of the District
Court's order pending appeal. We granted a stay with
respect to implementation of the Special Master's remedial
districts in Wake and Mecklenburg Counties, but otherwise
denied the application. See 583 U. S. 1109 (2018). The defendants
timely appealed directly to this Court as provided
under 28 U. S. C. § 1253. We have jurisdiction, and now
summarily affrm in part and reverse in part the order of the
District Court.
* * *
The defendants frst argue that the District Court lacked
jurisdiction even to enter a remedial order in this case. In
their view, “[w]here, as here, a lawsuit challenges the validity
of a statute,” the case becomes moot “when the statute is
repealed.” Juris. Statement 17. Thus, according to the defendants,
the plaintiffs' racial gerrymandering claims ceased
to exist when the North Carolina General Assembly enacted
remedial plans for the State House and State Senate and
repealed the old plans.
The defendants misunderstand the nature of the plaintiffs'
claims. Those claims, like other racial gerrymandering
claims, arise from the plaintiffs' allegations that they have
been “separate[d] . . . into different districts on the basis of
race.” Shaw v. Reno, 509 U. S. 630, 649 (1993). Resolution
976 NORTH CAROLINA v. COVINGTON
Per Curiam
of such claims will usually turn upon “circumstantial evidence
that race for its own sake, and not other districting
principles, was the legislature's dominant and controlling rationale
in drawing” the lines of legislative districts. Miller
v. Johnson, 515 U. S. 900, 913 (1995). But it is the segregation
of the plaintiffs—not the legislature's line-drawing as
such—that gives rise to their claims. It is for this reason,
among others, that the plaintiffs have standing to challenge
racial gerrymanders only with respect to those legislative
districts in which they reside. See Alabama Legislative
Black Caucus v. Alabama, 575 U. S. 254, 263 (2015). Here,
in the remedial posture in which this case is presented, the
plaintiffs' claims that they were organized into legislative
districts on the basis of their race did not become moot simply
because the General Assembly drew new district lines
around them. To the contrary, they argued in the District
Court that some of the new districts were mere continuations
of the old, gerrymandered districts. Because the
plaintiffs asserted that they remained segregated on the
basis of race, their claims remained the subject of a live dispute,
and the District Court properly retained jurisdiction.
Second, the defendants argue that the District Court erred
when it “conclu[ded] that the General Assembly engaged in
racial gerrymandering by declining to consider race.” Juris.
Statement 20. They assert that “there is no dispute that
the General Assembly did not consider race at all when designing
the 2017 [remedial plans]—not as a predominant
motive, a secondary motive, or otherwise,” and that such
“undisputed fact should have been the end of the plaintiffs'
racial gerrymandering challenges.” Id., at 21–22.
This argument suffers from the same conceptual faws as
the frst. While it may be undisputed that the 2017 legislature
instructed its map drawers not to look at race when
crafting a remedial map, what is also undisputed—because
the defendants do not attempt to rebut it in their jurisdictional
statement or in their brief opposing the plaintiffs'
Cite as: 585 U. S. 969 (2018) 977
Per Curiam
motion to affrm—is the District Court's detailed, districtby-
district factfnding respecting the legislature's remedial
Senate Districts 21 and 28 and House Districts 21 and 57.
That factfnding, as discussed above, turned up suffcient
circumstantial evidence that race was the predominant factor
governing the shape of those four districts. See, e. g., 283
F. Supp. 3d, at 436. As this Court has previously explained,
a plaintiff can rely upon either “circumstantial evidence of a
district's shape and demographics or more direct evidence
going to legislative purpose” in proving a racial gerrymandering
claim. Miller, supra, at 916. The defendants' insistence
that the 2017 legislature did not look at racial data
in drawing remedial districts does little to undermine the
District Court's conclusion—based on evidence concerning
the shape and demographics of those districts—that the districts
unconstitutionally sort voters on the basis of race.
283 F. Supp. 3d, at 442.
Third, the defendants argue that the District Court abused
its discretion by arranging for the Special Master to draw
up an alternative remedial map instead of giving the General
Assembly—which “stood ready and willing to promptly
carry out its sovereign duty”—another chance at a remedial
map. Juris. Statement 33. Yet the District Court had its
own duty to cure illegally gerrymandered districts through
an orderly process in advance of elections. See Purcell v.
Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). Here the
District Court determined that “providing the General Assembly
with a second bite at the apple” risked “further draw-
[ing] out these proceedings and potentially interfer[ing] with
the 2018 election cycle.” 283 F. Supp. 3d, at 448, n. 10. We
conclude that the District Court's appointment of a Special
Master in this case was not an abuse of discretion.
Neither was the District Court's decision to adopt the Special
Master's recommended remedy for the racially gerrymandered
districts. The defendants argue briefy that the
District Court's adoption of that recommendation was error
978 NORTH CAROLINA v. COVINGTON
Per Curiam
because the Special Master's remedial plan was “expressly
race-conscious” and succeeded in “compel[ling] the State to
employ racial quotas of plaintiffs' choosing.” Juris. Statement
34–35. Yet this Court has long recognized “[t]he distinction
between being aware of racial considerations and
being motivated by them.” Miller, supra, at 916. The District
Court's allowance that the Special Master could “consider
data identifying the race of individuals or voters to the
extent necessary to ensure that his plan cures the unconstitutional
racial gerrymanders,” App. to Juris. Statement 111,
does not amount to a warrant for “racial quotas.” In any
event, the defendants' assertions on this question make no
real attempt to counter the District Court's agreement
with the Special Master that “ `no racial targets were
sought or achieved' ” in drawing the remedial districts. 283
F. Supp. 3d, at 449.
All of the foregoing is enough to convince us that the District
Court's order should be affrmed insofar as it provided
a court-drawn remedy for Senate Districts 21 and 28 and
House Districts 21 and 57. The same cannot be said, however,
of the District Court's actions concerning the legislature's
redrawing of House districts in Wake and Mecklenburg
Counties. There the District Court proceeded from a
mistaken view of its adjudicative role and its relationship to
the North Carolina General Assembly.
The only injuries the plaintiffs established in this case
were that they had been placed in their legislative districts
on the basis of race. The District Court's remedial authority
was accordingly limited to ensuring that the plaintiffs
were relieved of the burden of voting in racially gerrymandered
legislative districts. See DaimlerChrysler Corp. v.
Cuno, 547 U. S. 332, 353 (2006). But the District Court's
revision of the House districts in Wake and Mecklenburg
Counties had nothing to do with that. Instead, the District
Court redrew those districts because it found that the legislature's
revision of them violated the North Carolina ConstiCite
as: 585 U. S. 969 (2018) 979
Thomas, J., dissenting
tution's ban on mid-decade redistricting, not federal law.
Indeed, the District Court understood that ban to apply unless
such redistricting was “required by federal law or judicial
order.” 283 F. Supp. 3d, at 443. The District Court's
enforcement of the ban was thus premised on the conclusion
that the General Assembly's action was not “required” by
federal law.
The District Court's decision to override the legislature's
remedial map on that basis was clear error. “[S]tate legislatures
have primary jurisdiction over legislative reapportionment,”
White v. Weiser, 412 U. S. 783, 795 (1973) (internal
quotation marks omitted), and a legislature's “freedom of
choice to devise substitutes for an apportionment plan found
unconstitutional, either as a whole or in part, should not be
restricted beyond the clear commands” of federal law, Burns
v. Richardson, 384 U. S. 73, 85 (1966). A district court is
“not free . . . to disregard the political program of ” a state
legislature on other bases. Upham, 456 U. S., at 43. Once
the District Court had ensured that the racial gerrymanders
at issue in this case were remedied, its proper role in North
Carolina's legislative districting process was at an end.
The order of the District Court is affrmed in part and
reversed in part.
It is so ordered.
Justice Thomas, dissenting.
I do not think the complicated factual and legal issues in
this case should be disposed of summarily. I would have set
this case for briefng and oral argument. I respectfully
dissent.
Reporter’s Note
The next page is purposely numbered 1001. The numbers between 979
and 1001 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the offcial citations
available upon publication of the preliminary prints of the United
States Reports.
ORDERS FOR JUNE 14 THROUGH
SEPTEMBER 28, 2018
June 14, 2018
Dismissal Under Rule 46
No. 17–57. Pacic Gas & Electric Co. et al. v. United
States. C. A. Fed. Cir. Certiorari dismissed under this Court's
Rule 46.1. Reported below: 838 F. 3d 1341.
June 18, 2018
Dismissals Under Rule 46
No. 16–581. Leidos, Inc., fka SAIC, Inc. v. Indiana Public
Retirement System et al. C. A. 2d Cir. [Certiorari granted,
580 U. S. 1216.] Writ of certiorari dismissed under this Court's
Rule 46.1.
No. 17–1327. Dragon Intellectual Property, LLC v.
DISH Network LLC et al. C. A. Fed. Cir. Certiorari dismissed
under this Court's Rule 46.1. Reported below: 711 Fed.
Appx. 993.
Certiorari Granted—Vacated and Remanded
No. 16–6259. Gonzalez-Longoria v. United States. C. A.
5th Cir. Petition for rehearing granted. The order entered May
14, 2018, [584 U. S. 976] denying petition for writ of certiorari
vacated. Motion of petitioner for leave to proceed in forma pauperis
granted. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of Sessions v. Dimaya,
584 U. S. 148 (2018). Reported below: 831 F. 3d 670.
Certiorari Dismissed
No. 17–8955. Jackson v. United States. C. A. 4th Cir. Motion
of petitioner for leave to proceed in forma pauperis denied,
and certiorari dismissed. See this Court's Rule 39.8. Reported
below: 703 Fed. Appx. 197.
1001
1002 OCTOBER TERM, 2017
June 18, 2018 585 U. S.
Miscellaneous Orders
No. 17M129. Kelly v. United States. Motion for leave to
fle petition for writ of certiorari with supplemental appendix
under seal granted.
No. 17M130. Sealed Appellant v. Sealed Appellee. Motion
for leave to fle petition for writ of certiorari under seal with
redacted copies for the public record granted.
No. 17–1285. Association des Eleveurs de Canards et
d’Oies du Quebec et al. v. Becerra, Attorney General of
California. C. A. 9th Cir. The Solicitor General is invited to
fle a brief in this case expressing the views of the United States.
No. 17–7817. Wei Zhou v. Marquette University. C. A.
7th Cir. Motion of petitioner for reconsideration of order denying
leave to proceed in forma pauperis [584 U. S. 948] denied.
No. 17–8278. Bamdad v. United States. C. A. 9th Cir. Motion
of petitioner for reconsideration of order denying leave to
proceed in forma pauperis [584 U. S. 957] denied.
No. 17–1586. In re Lyles. Petition for writ of habeas corpus
denied.
No. 17–1454. In re Scheidler. Petition for writ of mandamus
denied.
No. 17–8469. In re Raa. Petition for writ of mandamus and/
or prohibition denied.
Certiorari Granted
No. 17–949. Sturgeon v. Frost, Alaska Regional Director
of the National Park Service, et al. C. A. 9th Cir.
Certiorari granted. Reported below: 872 F. 3d 927.
No. 17–1026. Garza v. Idaho. Sup. Ct. Idaho. Certiorari
granted. Reported below: 162 Idaho 791, 405 P. 3d 576.
No. 17–1077. Lorenzo v. Securities and Exchange Commission.
C. A. D. C. Cir. Certiorari granted. Reported below:
872 F. 3d 578.
No. 17–1091. Timbs v. Indiana. Sup. Ct. Ind. Certiorari
granted. Reported below: 84 N. E. 3d 1179.
ORDERS 1003
585 U. S. June 18, 2018
No. 17–204. Apple Inc. v. Pepper et al. C. A. 9th Cir.
Motions of ACT | The App Association and Washington Legal
Foundation for leave to fle briefs as amici curiae granted. Certiorari
granted. Reported below: 846 F. 3d 313.
Certiorari Denied
No. 17–521. Lazar v. Kroncke, as Administrator of the
Estate of Kroncke. C. A. 9th Cir. Certiorari denied. Reported
below: 862 F. 3d 1186.
No. 17–931. Martinez Cazun v. Sessions, Attorney General.
C. A. 3d Cir. Certiorari denied. Reported below: 856
F. 3d 249.
No. 17–955. Harkness v. Spencer, Secretary of the Navy.
C. A. 6th Cir. Certiorari denied. Reported below: 858 F. 3d 437.
No. 17–970. Stanford v. Browne et al. Sup. Ct. Nev.
Certiorari denied. Reported below: 133 Nev. 1076, 402 P. 3d 1253.
No. 17–975. Total Gas & Power North America, Inc.,
et al. v. Federal Energy Regulatory Commission et al.
C. A. 5th Cir. Certiorari denied. Reported below: 859 F. 3d 325.
No. 17–984. Garcia Garcia v. Sessions, Attorney General.
C. A. 7th Cir. Certiorari denied. Reported below: 873
F. 3d 553.
No. 17–1007. Igartua et al. v. Trump, President of the
United States, et al. C. A. 1st Cir. Certiorari denied. Reported
below: 842 F. 3d 149.
No. 17–1061. Richmond v. Coleman Cable, LLC, et al.
C. A. Fed. Cir. Certiorari denied. Reported below: 690 Fed.
Appx. 682.
No. 17–1098. Parkinson v. Department of Justice. C. A.
Fed. Cir. Certiorari denied. Reported below: 874 F. 3d 710.
No. 17–1105. American Commercial Lines, LLC v. United
States. C. A. 5th Cir. Certiorari denied. Reported below: 875
F. 3d 170.
No. 17–1142. Michigan Gaming Control Board et al. v.
Moody et al. C. A. 6th Cir. Certiorari denied. Reported
below: 871 F. 3d 420.
1004 OCTOBER TERM, 2017
June 18, 2018 585 U. S.
No. 17–1151. Duquesne Light Holdings, Inc., et al. v.
Commissioner of Internal Revenue. C. A. 3d Cir. Certiorari
denied. Reported below: 861 F. 3d 396.
No. 17–1154. Coleman v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 706 Fed. Appx. 618.
No. 17–1212. Garcia Garcia v. Sessions, Attorney General.
C. A. 1st Cir. Certiorari denied. Reported below: 856
F. 3d 27.
No. 17–1225. Campanelli v. Illinois. Sup. Ct. Ill. Certiorari
denied. Reported below: 2017 IL 120997, 104 N. E. 3d 325.
No. 17–1287. Roberts et al. v. AT&T Mobility LLC. C. A.
9th Cir. Certiorari denied. Reported below: 877 F. 3d 833.
No. 17–1291. BOKF, N. A., as First Loan Trustee v. Momentive
Performance Materials, Inc., et al.; and
No. 17–1292. Wilmington Trust, N. A., as 1.5 Lien
Trustee v. Momentive Performance Materials, Inc., et al.
C. A. 2d Cir. Certiorari denied. Reported below: 874 F. 3d 787.
No. 17–1392. H. A. S. Electrical Contractors, Inc. v.
Hemphill Construction Co., Inc. Sup. Ct. Miss. Certiorari
denied. Reported below: 232 So. 3d 117.
No. 17–1421. Opta Corp. et al. v. Daewoo Electronics
America, Inc. C. A. 9th Cir. Certiorari denied. Reported
below: 875 F. 3d 1241.
No. 17–1425. M. H. v. J. K. Ct. App. Cal., 4th App. Dist., Div. 1.
Certiorari denied.
No. 17–1433. Elinzano-Gonzales v. Sessions, Attorney
General. C. A. 2d Cir. Certiorari denied. Reported below:
716 Fed. Appx. 29.
No. 17–1444. Aberdeen Marketplace, Inc. v. Nanni.
C. A. 4th Cir. Certiorari denied. Reported below: 878 F. 3d 447.
No. 17–1450. Bergdoll v. Torres, Acting Pennsylvania
Secretary of State, et al. Sup. Ct. Pa. Certiorari denied.
Reported below: 644 Pa. 613, 177 A. 3d 875.
No. 17–1452. Den Hollander v. CBS News Inc. et al.
C. A. 2d Cir. Certiorari denied. Reported below: 710 Fed.
Appx. 35.
ORDERS 1005
585 U. S. June 18, 2018
No. 17–1495. Roberts v. FNB South of Alma, Georgia.
C. A. 11th Cir. Certiorari denied. Reported below: 716 Fed.
Appx. 854.
No. 17–1502. Mann v. United States. C. A. 8th Cir. Certiorari
denied.
No. 17–1504. Rice v. Interfood, Inc., et al. C. A. 8th Cir.
Certiorari denied. Reported below: 709 Fed. Appx. 415.
No. 17–1527. Crampton v. Commission for Lawyer Discipline
of the State Bar of Texas. Ct. App. Tex., 8th Dist.
Certiorari denied. Reported below: 545 S. W. 3d 593.
No. 17–1531. Hager v. United States. C. A. 5th Cir. Certiorari
denied. Reported below: 879 F. 3d 550.
No. 17–1539. Kinney v. Clark. Ct. App. Cal., 2d App. Dist.,
Div. 1. Certiorari denied.
No. 17–1540. M. C., a Minor, By and Through His Parent,
D. C. v. Oregon Department of Education. C. A. 9th Cir.
Certiorari denied. Reported below: 695 Fed. Appx. 302.
No. 17–1573. Crazy Horse Saloon & Restaurant, Inc.,
dba Thee New Dollhouse v. Degidio, Individually and on
Behalf of All Others Similarly Situated. C. A. 4th Cir.
Certiorari denied. Reported below: 880 F. 3d 135.
No. 17–1579. Boutte v. United States. C. A. 5th Cir. Certiorari
denied.
No. 17–7383. Roberson v. United States. C. A. 10th Cir.
Certiorari denied. Reported below: 864 F. 3d 1118.
No. 17–7420. Hughes v. United States. C. A. 8th Cir.
Certiorari denied. Reported below: 694 Fed. Appx. 463.
No. 17–7458. Swaggerty v. United States. C. A. 6th
Cir. Certiorari denied.
No. 17–7542. Nedd v. United States. C. A. 11th Cir. Certiorari
denied.
No. 17–7645. Boatwright v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 713 Fed. Appx. 871.
1006 OCTOBER TERM, 2017
June 18, 2018 585 U. S.
No. 17–7734. Martin Mendoza v. United States. C. A.
11th Cir. Certiorari denied. Reported below: 706 Fed. Appx.
620.
No. 17–7773. Grafton v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 697 Fed. Appx. 672.
No. 17–7796. Duncan v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 704 Fed. Appx. 914.
No. 17–7804. McHale v. Cain, Superintendent, Snake
River Correctional Institution. C. A. 9th Cir. Certiorari
denied.
No. 17–7879. Alexander v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 713 Fed. Appx. 919.
No. 17–8083. Runnels v. Davis, Director, Texas Department
of Criminal Justice, Correctional Institutions Division.
C. A. 5th Cir. Certiorari denied. Reported below: 664
Fed. Appx. 371.
No. 17–8134. Zack v. Florida et al. Sup. Ct. Fla. Certiorari
denied. Reported below: 228 So. 3d 41.
No. 17–8471. Blair v. Yum! Brands et al. C. A. 5th Cir.
Certiorari denied. Reported below: 697 Fed. Appx. 352.
No. 17–8473. Simmons v. Johnson, Administrator, New
Jersey State Prison, et al. C. A. 3d Cir. Certiorari
denied.
No. 17–8484. Perez Duenas v. Washington. Ct. App.
Wash. Certiorari denied. Reported below: 199 Wash. App. 1027.
No. 17–8489. Ohio ex rel. McKinney v. Schmenk, Judge,
Deance County Court of Common Pleas. Sup. Ct. Ohio.
Certiorari denied. Reported below: 152 Ohio St. 3d 70, 2017-
Ohio-9183, 92 N. E. 3d 871.
No. 17–8494. Tyler v. Ocwen Loan Servicing, LLC, et al.
C. A. 5th Cir. Certiorari denied. Reported below: 699 Fed.
Appx. 423.
No. 17–8500. Alvarado v. Johnson, Administrator, New
Jersey State Prison, et al. C. A. 3d Cir. Certiorari denied.
ORDERS 1007
585 U. S. June 18, 2018
No. 17–8504. Carpenter v. City of Chicago, Illinois,
et al. C. A. 7th Cir. Certiorari denied. Reported below: 717
Fed. Appx. 630.
No. 17–8506. Bridges v. Illinois. App. Ct. Ill., 1st Dist.
Certiorari denied. Reported below: 2017 IL App (1st) 143539–U.
No. 17–8513. Valdez Perez v. California. C. A. 9th Cir.
Certiorari denied.
No. 17–8516. O’Neal v. Clarke, Director, Virginia Department
of Corrections. Sup. Ct. Va. Certiorari denied.
No. 17–8518. Ramos v. Connecticut. App. Ct. Conn. Certiorari
denied. Reported below: 178 Conn. App. 400, 175 A. 3d 1265.
No. 17–8532. Singh et al. v. Fernandes. Ct. App. Cal., 3d
App. Dist. Certiorari denied. Reported below: 16 Cal. App. 5th
932, 224 Cal. Rptr. 3d 751.
No. 17–8535. Biggs v. Ferrero. C. A. 6th Cir. Certiorari
denied.
No. 17–8536. Armas v. Oregon. Ct. App. Ore. Certiorari
denied. Reported below: 284 Ore. App. 557, 392 P. 3d 834.
No. 17–8537. Broadway v. Vannoy, Warden. C. A. 5th Cir.
Certiorari denied.
No. 17–8540. Cole v. Florida. Sup. Ct. Fla. Certiorari denied.
Reported below: 234 So. 3d 644.
No. 17–8541. McHenry v. Parking Violation Bureau. Ct.
App. Cal., 2d App. Dist. Certiorari denied.
No. 17–8548. Childress v. City of Charleston Police Department
et al. C. A. 4th Cir. Certiorari denied. Reported
below: 706 Fed. Appx. 814.
No. 17–8556. Bontrager v. Colorado Attorney Regulation
Counsel. Sup. Ct. Colo. Certiorari denied.
No. 17–8566. Sandia v. Walmart Stores. C. A. 2d Cir.
Certiorari denied. Reported below: 699 Fed. Appx. 64.
No. 17–8586. Ahmed v. Arizona Department of Transportation
et al. C. A. 9th Cir. Certiorari denied. Reported
below: 687 Fed. Appx. 672.
1008 OCTOBER TERM, 2017
June 18, 2018 585 U. S.
No. 17–8635. Vrh v. California. Ct. App. Cal., 5th App.
Dist. Certiorari denied.
No. 17–8661. Stansell v. Eppinger, Warden. C. A. 6th Cir.
Certiorari denied.
No. 17–8687. Brooks v. Johnson, Administrator, New Jersey
State Prison, et al. C. A. 3d Cir. Certiorari denied.
Reported below: 722 Fed. Appx. 180.
No. 17–8757. Leonard v. Oregon et al. C. A. 9th Cir.
Certiorari denied. Reported below: 714 Fed. Appx. 801.
No. 17–8776. Johnson v. Florida. Dist. Ct. App. Fla., 3d
Dist. Certiorari denied. Reported below: 238 So. 3d 788.
No. 17–8791. Rhines v. South Dakota. Sup. Ct. S. D. Certiorari
denied.
No. 17–8878. Raybon v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 867 F. 3d 625.
No. 17–8886. Casillas Prieto v. United States. C. A. 5th
Cir. Certiorari denied.
No. 17–8890. Phillips v. Trump, President of the United
States. C. A. 6th Cir. Certiorari denied.
No. 17–8891. McDuff v. Securities and Exchange Commission.
C. A. 5th Cir. Certiorari denied. Reported below:
697 Fed. Appx. 393.
No. 17–8897. Lee v. Beasley, Warden. C. A. 8th Cir. Certiorari
denied.
No. 17–8904. Herrera Santa Cruz v. United States.
C. A. 5th Cir. Certiorari denied. Reported below: 609 Fed.
Appx. 265.
No. 17–8906. Hicks v. Federal Bureau of Prisons. C. A.
6th Cir. Certiorari denied.
No. 17–8912. Salazar-Valencia v. United States. C. A.
5th Cir. Certiorari denied. Reported below: 716 Fed. Appx. 288.
No. 17–8914. Ramirez v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 715 Fed. Appx. 663.
585 U. S.
No. 17–8925.
tiorari denied.
No. 17–8938.
tiorari denied.
No. 17–8943.
tiorari denied.
No. 17–8944.
tiorari denied.
No. 17–8945.
ORDERS 1009
June 18, 2018
Clark v. United States. C. A. 11th Cir. Cer-
Reported below: 710 Fed. Appx. 418.
Gills v. United States. C. A. 6th Cir. Cer-
Reported below: 702 Fed. Appx. 367.
Jones v. United States. C. A. 9th Cir. Cer-
Reported below: 714 Fed. Appx. 721.
Lesch v. United States. C. A. 4th Cir. Cer-
Reported below: 717 Fed. Appx. 244.
Mathis v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 710 Fed. Appx. 396.
No. 17–8946. Maldonado v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 731 Fed. Appx. 831.
No. 17–8950. Benitez-Reynoso v. United States. C. A. 5th
Cir. Certiorari denied. Reported below: 718 Fed. Appx. 278.
No. 17–8952. Chapman v. United States. C. A. 8th Cir.
Certiorari denied. Reported below: 720 Fed. Appx. 794.
No. 17–8959. Gibson v. United States. C. A. 5th Cir. Certiorari
denied. Reported below: 875 F. 3d 179.
No. 17–8974. Brown v. Pennsylvania. Super. Ct. Pa. Certiorari
denied. Reported below: 170 A. 3d 1208.
No. 17–8976. Colby v. United States. C. A. 1st Cir. Certiorari
denied. Reported below: 882 F. 3d 267.
No. 17–8984. Almonte, aka Antonio v. United States.
C. A. 2d Cir. Certiorari denied. Reported below: 694 Fed.
Appx. 35.
No. 17–8985. Gay v. United States. C. A. 3d Cir. Certiorari
denied. Reported below: 724 Fed. Appx. 122.
No. 17–8986. Berger v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 697 Fed. Appx. 193.
No. 17–8987. Berry v. United States. C. A. 11th Cir. Certiorari
denied.
No. 17–8993. Breedlove v. United States. C. A. 7th Cir.
Certiorari denied. Reported below: 698 Fed. Appx. 842.
1010 OCTOBER TERM, 2017
June 18, 2018 585 U. S.
No. 17–9001. Lewis v. United States. C. A. 4th Cir. Certiorari
denied.
No. 17–9003. Morreo v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 690 Fed. Appx. 992.
No. 17–9006. Cazimero v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 712 Fed. Appx. 670.
No. 17–9008. Stanford v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 716 Fed. Appx. 689.
No. 17–9011. Washington v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 710 Fed. Appx. 161.
No. 17–9013. Pasillas v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 713 Fed. Appx. 311.
No. 17–9017. Allen v. United States. C. A. 11th Cir. Certiorari
denied. Reported below: 714 Fed. Appx. 988.
No. 17–9020. Bogar v. United States. C. A. 5th Cir. Certiorari
denied. Reported below: 711 Fed. Appx. 246.
No. 17–9021. Colon-Rivera v. United States. C. A. 11th
Cir. Certiorari denied. Reported below: 711 Fed. Appx. 595.
No. 17–9026. Jaramillo v. United States. C. A. 5th Cir.
Certiorari denied.
No. 17–1078. Pauly, as Personal Representative of the
Estate of Pauly, Deceased, et al. v. White et al. C. A.
10th Cir. Certiorari denied. Justice Gorsuch took no part in
the consideration or decision of this petition. Reported below:
874 F. 3d 1197.
No. 17–1274. Ryan, Director, Arizona Department of
Corrections v. Poyson. C. A. 9th Cir. Motion of respondent
for leave to proceed in forma pauperis granted. Certiorari denied.
Reported below: 879 F. 3d 875.
No. 17–1501. Integris Health, Inc. v. Cates. Sup. Ct.
Okla. Motion of American Hospital Association et al. for leave to
fle brief as amici curiae granted. Certiorari denied. Reported
below: 2018 OK 9, 412 P. 3d 98.
No. 17–1521. Furber, as Personal Representative of
the Estate of Furber, Deceased v. Taylor et al. C. A.
ORDERS 1011
585 U. S. June 18, 2018
10th Cir. Certiorari denied. Justice Gorsuch took no part in
the consideration or decision of this petition. Reported below:
685 Fed. Appx. 674.
No. 17–8148. Kaczmar v. Florida. Sup. Ct. Fla. Certiorari
denied. Reported below: 228 So. 3d 1.
Justice Sotomayor, dissenting.
Like a number of other capital defendants in Florida, petitioner
Leo Louis Kaczmar has raised an important Eighth Amendment
challenge to his death sentence that went unaddressed by the
Florida Supreme Court. Specifcally, he argues that the jury instructions
in his case impermissibly diminished the jurors' sense
of responsibility as to the ultimate determination of death, in
violation of Caldwell v. Mississippi, 472 U. S. 320 (1985). I have
thrice dissented from this Court's unwillingness to intervene in
the face of the Florida Supreme Court's failure to address this
important question. See Guardado v. Florida, 584 U. S. 922,
(2018); Middleton v. Florida, 583 U. S. 1162, (2018); Truehill v.
Florida, 583 U. S. 938, 939 (2017). Recently, “[i]n light of the
dissenting opinions to the denial of certiorari,” the Florida Supreme
Court in another capital case fnally set out to “explicitly
address” the Caldwell claim. Reynolds v. State, 251 So. 3d 811,
818, n. 8 (2018) (per curiam). The resulting opinion, however,
gathered the support only of a plurality, so the issue remains
without defnitive resolution by the Florida Supreme Court.
Thus, for the reasons previously stated in Truehill, Middleton,
and Guardado, I again respectfully dissent from the denial of
certiorari.
No. 17–8486. Ruiz-Rivera v. Assured Guarantee Corp.
et al. C. A. 1st Cir. Certiorari before judgment denied.
No. 17–8487. Ruiz-Rivera v. Lex Claims, LLC, et al.
C. A. 1st Cir. Certiorari before judgment denied.
No. 17–8992. Davis v. United States. C. A. 11th Cir. Certiorari
denied. Justice Kagan took no part in the consideration
or decision of this petition.
Rehearing Granted. (See No. 16–6259, 585 U. S. 1001.)
Rehearing Denied
No. 17–1038. In re Douce, 584 U. S. 903;
No. 17–1075. Scopelliti v. City of Tampa, Florida, 583
U. S. 1182;
1012 OCTOBER TERM, 2017
June 18, 25, 2018 585 U. S.
No. 17–1199. Wilson v. Hawaii et al., 584 U. S. 932;
No. 17–1253. Beavers v. Schneider National, Inc., 584
U. S. 978;
No. 17–6978. Frederick v. Pennsylvania, 583 U. S. 1125;
No. 17–7474. Gouch-Onassis v. California, 584 U. S. 906;
No. 17–7680. Burke v. Furtado, 584 U. S. 919;
No. 17–7943. Stanley v. Washington, 584 U. S. 965; and
No. 17–8220. Russell v. Florida, 584 U. S. 955. Petitions
for rehearing denied.
No. 17–7709. Alcorta v. United States, 583 U. S. 1207. Petition
for rehearing denied. Justice Gorsuch took no part in
the consideration or decision of this petition.
June 25, 2018
Vacated and Remanded on Appeal
No. 17–1295. Rucho et al. v. Common Cause et al. Appeal
from D. C. M. D. N. C. Judgment vacated, and case remanded
for further consideration in light of Gill v. Whitford, ante, p. 48.
Reported below: 279 F. Supp. 3d 587.
Certiorari Granted—Vacated and Remanded
No. 16–9541. Clark v. Louisiana. Sup. Ct. La. Motion of
petitioner for leave to proceed in forma pauperis granted. Certiorari
granted, judgment vacated, and case remanded for further
consideration in light of McCoy v. Louisiana, 584 U. S. 414 (2018).
Reported below: 2012–0508 (La. 12/19/16), 220 So. 3d 583.
No. 16–9608. Renteria-Martinez v. United States. C. A.
5th Cir. Reported below: 847 F. 3d 297;
No. 17–6389. Cruz-Pena v. United States. C. A. 5th Cir.
Reported below: 700 Fed. Appx. 338;
No. 17–6556. Anthony v. United States. C. A. 5th Cir.
Reported below: 693 Fed. Appx. 380;
No. 17–6805. Agustin-Garcia v. United States. C. A. 5th
Cir. Reported below: 699 Fed. Appx. 391; and
No. 17–7261. Ruiz-Dominguez v. United States. C. A. 5th
Cir. Reported below: 713 Fed. Appx. 273. Motions of petitioners
for leave to proceed in forma pauperis granted. Certiorari
granted, judgments vacated, and cases remanded for further consideration
in light of Rosales-Mireles v. United States, ante,
p. 129.
ORDERS 1013
585 U. S. June 25, 2018
No. 17–108. Arlene’s Flowers, Inc., dba Arlene’s Flowers
and Gifts, et al. v. Washington et al. Sup. Ct. Wash.
Certiorari granted, judgment vacated, and case remanded for further
consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Comm'n, 584 U. S. 617 (2018). Reported
below: 187 Wash. 2d 804, 389 P. 3d 543.
No. 17–7779. Johnson v. United States. C. A. 6th Cir. Reported
below: 876 F. 3d 812;
No. 17–7781. Ramirez Galvan v. United States. C. A. 5th
Cir. Reported below: 699 Fed. Appx. 314;
No. 17–7793. Ramirez-Hidalgo v. United States. C. A. 5th
Cir. Reported below: 707 Fed. Appx. 850; and
No. 17–8109. Rubio-Sorto v. United States. C. A. 5th Cir.
Reported below: 707 Fed. Appx. 239. Motions of petitioners for
leave to proceed in forma pauperis granted. Certiorari granted,
judgments vacated, and cases remanded for further consideration
in light of Sessions v. Dimaya, 584 U. S. 148 (2018).
Certiorari Dismissed
No. 17–8557. Rose v. United States Court of Appeals for
the Tenth Circuit. C. A. 10th Cir. Motion of petitioner for
leave to proceed in forma pauperis denied, and certiorari dismissed.
See this Court's Rule 39.8.
No. 17–8682. Gillespie v. Reverse Mortgage Solutions.
Sup. Ct. Fla. Motion of petitioner for leave to proceed in forma
pauperis denied, and certiorari dismissed. See this Court's
Rule 39.8.
No. 17–8689. Gillespie v. Reverse Mortgage Solutions
et al. Sup. Ct. Fla. Motion of petitioner for leave to proceed
in forma pauperis denied, and certiorari dismissed. See this
Court's Rule 39.8.
No. 17–9028. Scotton v. United States (two judgments).
C. A. 11th Cir. Certiorari denied. Motion of petitioner for leave
to proceed in forma pauperis denied, and certiorari dismissed.
See this Court's Rule 39.8.
Miscellaneous Orders
No. D–3013. In re Disbarment of Siegel. Disbarment entered.
[For earlier order herein, see 584 U. S. 912.]
1014 OCTOBER TERM, 2017
June 25, 2018 585 U. S.
No. D–3015. In re Disbarment of Bassi. Disbarment entered.
[For earlier order herein, see 584 U. S. 912.]
No. D–3016. In re Disbarment of Brazil. Disbarment entered.
[For earlier order herein, see 584 U. S. 912.]
No. D–3017. In re Disbarment of Crawford. Disbarment
entered. [For earlier order herein, see 584 U. S. 913.]
No. D–3018. In re Disbarment of Gaskins. Disbarment
entered. [For earlier order herein, see 584 U. S. 913.]
No. D–3019. In re Disbarment of Landry. Disbarment
entered. [For earlier order herein, see 584 U. S. 913.]
No. D–3020. In re Disbarment of Denrich. Disbarment
entered. [For earlier order herein, see 584 U. S. 913.]
No. D–3021. In re Disbarment of Smith. Disbarment entered.
[For earlier order herein, see 584 U. S. 913.]
No. D–3023. In re Disbarment of Nyce. Disbarment entered.
[For earlier order herein, see 584 U. S. 929.]
No. D–3024. In re Disbarment of Terrell. Disbarment
entered. [For earlier order herein, see 584 U. S. 913.]
No. D–3025. In re Disbarment of Andrews. Disbarment
entered. [For earlier order herein, see 584 U. S. 913.]
No. D–3026. In re Disbarment of Harrell. Disbarment
entered. [For earlier order herein, see 584 U. S. 914.]
No. D–3027. In re Disbarment of Loudon. Disbarment
entered. [For earlier order herein, see 584 U. S. 914.]
No. 17M131. Kalin Thanh Dao v. United States. Motion
to direct the Clerk to fle petition for writ of certiorari out of
time denied.
No. 17–1165. de Csepel et al. v. Republic of Hungary
et al. C. A. D. C. Cir.; and
No. 17–1301. Harvey et al. v. UTE Indian Tribe of the
Uintah and Ouray Reservation et al. Sup. Ct. Utah. The
Solicitor General is invited to fle briefs in these cases expressing
the views of the United States.
ORDERS 1015
585 U. S. June 25, 2018
No. 17–8084. Koch v. City of Sargent, Nebraska. Ct.
App. Neb. Motion of petitioner for reconsideration of order denying
leave to proceed in forma pauperis [584 U. S. 949] denied.
No. 17– 8616. Harnden v. Michigan Department of
Health and Human Services et al. C. A. 6th Cir. Motion
of petitioner for leave to proceed in forma pauperis denied.
Petitioner is allowed until July 16, 2018, within which to pay the
docketing fee required by Rule 38(a) and to submit a petition in
compliance with Rule 33.1 of the Rules of this Court.
No. 17–9155. In re Williams. Petition for writ of habeas
corpus denied.
No. 17–8811. In re Mason. Petition for writ of mandamus
denied.
No. 17–8965. In re Allah. Motion of petitioner for leave to
proceed in forma pauperis denied, and petition for writ of mandamus
dismissed. See this Court's Rule 39.8.
Certiorari Granted
No. 16–1094. Republic of Sudan v. Harrison et al. C. A.
2d Cir. Certiorari granted. Reported below: 802 F. 3d 399.
No. 16–1498. Washington State Department of Licensing
v. Cougar Den, Inc. Sup. Ct. Wash. Certiorari granted.
Reported below: 188 Wash. 2d 55, 392 P. 3d 1014.
No. 17–1094. Nutraceutical Corp. v. Lambert. C. A. 9th
Cir. Certiorari granted. Reported below: 870 F. 3d 1170.
No. 17–1184. Biestek v. Berryhill, Deputy Commissioner
for Operations, Social Security Administration. C. A. 6th
Cir. Certiorari granted. Reported below: 880 F. 3d 778.
No. 17–1229. Helsinn Healthcare S. A. v. Teva Pharmaceuticals
USA, Inc., et al. C. A. Fed. Cir. Certiorari
granted. Reported below: 855 F. 3d 1356.
No. 17–1272. Henry Schein, Inc., et al. v. Archer &
White Sales, Inc. C. A. 5th Cir. Certiorari granted. Reported
below: 878 F. 3d 488.
No. 17–419. Dawson et ux. v. Steager, West Virginia
State Tax Commissioner. Sup. Ct. App. W. Va. Certiorari
1016 OCTOBER TERM, 2017
June 25, 2018 585 U. S.
granted limited to the question presented by the Solicitor General
in his brief for the United States as amicus curiae.
Certiorari Denied
No. 16–163. Wynn Las Vegas, LLC, et al. v. Cesarz
et al.; and
No. 16–920. National Restaurant Assn. et al. v. Department
of Labor et al. C. A. 9th Cir. Certiorari denied. Reported
below: 816 F. 3d 1080.
No. 17–528. Strang v. Ford Motor Company General
Retirement Plan et al. C. A. 6th Cir. Certiorari denied.
Reported below: 693 Fed. Appx. 400.
No. 17–1041. Sheridan v. Ortega Melendres et al. C. A.
9th Cir. Certiorari denied.
No. 17–1058. SNR Wireless LicenseCo, LLC, et al. v.
Federal Communications Commission et al. C. A. D. C. Cir.
Certiorari denied. Reported below: 868 F. 3d 1021.
No. 17–1060. United States ex rel. Carter v. Halliburton
Co. et al. C. A. 4th Cir. Certiorari denied. Reported
below: 866 F. 3d 199.
No. 17–1093. Reed v. Texas. Ct. Crim. App. Tex. Certiorari
denied. Reported below: 541 S. W. 3d 759.
No. 17–1134. Ellison et al. v. United States; and
No. 17–7809. Swenson v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 704 Fed. Appx. 616.
No. 17–1150. Chung Hou Hsiao v. Hazuda et al. C. A. 9th
Cir. Certiorari denied. Reported below: 869 F. 3d 1034.
No. 17–1153. Sierra Pacic Industries, Inc., et al. v.
United States. C. A. 9th Cir. Certiorari denied. Reported
below: 862 F. 3d 1157.
No. 17–1172. Dassey v. Dittmann. C. A. 7th Cir. Certiorari
denied. Reported below: 877 F. 3d 297.
No. 17–1180. Union Pacic Railroad Co. v. Equal Employment
Opportunity Commission. C. A. 7th Cir. Certiorari denied.
Reported below: 867 F. 3d 843.
ORDERS 1017
585 U. S. June 25, 2018
No. 17–1243. Specialty Fertilizer Products, LLC v.
Shell Oil Co. et al. C. A. Fed. Cir. Certiorari denied. Reported
below: 700 Fed. Appx. 1006.
No. 17–1251. Casey v. United States. C. A. 1st Cir. Certiorari
denied. Reported below: 881 F. 3d 232.
No. 17–1279. Bernstein, Shur, Sawyer & Nelson, P. A.,
et al. v. Snow. Sup. Jud. Ct. Me. Certiorari denied. Reported
below: 2017 ME 239, 176 A. 3d 729.
No. 17–1300. Findlay et al. v. Federal Housing Finance
Agency; and
No. 17–1302. Nomura Securities International, Inc.,
et al. v. Federal Housing Finance Agency. C. A. 2d Cir.
Certiorari denied. Reported below: 873 F. 3d 85.
No. 17–1304. Rodriguez Vazquez v. Sessions, Attorney
General. C. A. 5th Cir. Certiorari denied. Reported below:
885 F. 3d 862.
No. 17–1309. Universal Processing Services of Wisconsin,
LLC v. Federal Trade Commission. C. A. 11th Cir. Certiorari
denied. Reported below: 877 F. 3d 1234.
No. 17–1314. Raza et al. v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 876 F. 3d 604.
No. 17–1328. Preston et al. v. Acosta, Secretary of
Labor. C. A. 11th Cir. Certiorari denied. Reported below:
873 F. 3d 877.
No. 17–1330. Sharp Image Gaming, Inc. v. Shingle Springs
Band of Miwok Indians. Ct. App. Cal., 3d App. Dist. Certiorari
denied. Reported below: 15 Cal. App. 5th 391, 223 Cal. Rptr.
3d 362.
No. 17–1357. Five Star Senior Living Inc., fka Five Star
Quality Care, Inc., et al. v. Mandviwala. C. A. 9th Cir.
Certiorari denied. Reported below: 723 Fed. Appx. 415.
No. 17–1443. Security People, Inc. v. Ojmar US, LLC.
C. A. Fed. Cir. Certiorari denied. Reported below: 702 Fed.
Appx. 982.
1018 OCTOBER TERM, 2017
June 25, 2018 585 U. S.
No. 17–1457. MacDonald v. Lawyers Board of Professional
Responsibility. Sup. Ct. Minn. Certiorari denied.
Reported below: 906 N. W. 2d 238.
No. 17–1462. Reddi v. Hughes & Hughes LLP et al. C. A.
9th Cir. Certiorari denied. Reported below: 695 Fed. Appx. 279.
No. 17–1467. Geddes et al. v. People’s Counsel of Baltimore
County et al. Ct. Sp. App. Md. Certiorari denied. Reported
below: 232 Md. App. 726 and 735.
No. 17–1468. Williston v. Vasterling et al. Ct. App. Mo.,
Western Dist. Certiorari denied. Reported below: 536 S. W.
3d 321.
No. 17–1475. Beason v. Texas. Ct. Crim. App. Tex. Certiorari
denied.
No. 17–1482. Woodhull v. Mascarella, Individually and
as Personal Representative of the Estate of Falvo,
et al. C. A. 11th Cir. Certiorari denied. Reported below: 699
Fed. Appx. 872.
No. 17–1488. Timbes v. Deutsche Bank National Trust
Co. et al. C. A. 11th Cir. Certiorari denied. Reported below:
708 Fed. Appx. 971.
No. 17–1489. Braddock v. Jolie et al. C. A. 9th Cir. Certiorari
denied. Reported below: 691 Fed. Appx. 318.
No. 17–1496. Ringgold et al. v. Sankary et al. Ct. App.
Cal., 2d App. Dist. Certiorari denied.
No. 17–1500. Williams v. 21st Mortgage Corp. et al.
C. A. 4th Cir. Certiorari denied. Reported below: 704 Fed.
Appx. 302.
No. 17–1525. Segaline v. Washington Department of
Labor and Industries et al. Ct. App. Wash. Certiorari denied.
Reported below: 199 Wash. App. 748, 400 P. 3d 1281.
No. 17–1526. Davidson et al. v. Fairchild Controls Corp.
C. A. 5th Cir. Certiorari denied. Reported below: 882 F. 3d 180.
No. 17–1558. Odom v. Adger et al. C. A. 4th Cir. Certiorari
denied. Reported below: 716 Fed. Appx. 185.
ORDERS 1019
585 U. S. June 25, 2018
No. 17–1567. Jensen v. Obenland, Superintendent, Monroe
Correctional Complex. C. A. 9th Cir. Certiorari denied.
Reported below: 705 Fed. Appx. 657.
No. 17–1577. Best et al. v. Commissioner of Internal
Revenue. C. A. 9th Cir. Certiorari denied. Reported below:
702 Fed. Appx. 615.
No. 17–1583. Bales v. United States. C. A. Armed Forces.
Certiorari denied. Reported below: 77 M. J. 268.
No. 17–1585. Bugoni v. O’Brien et al. Dist. Ct. App. Fla.,
4th Dist. Certiorari denied. Reported below: 236 So. 3d 1094.
No. 17–1593. Subway Restaurants, Inc. v. Warciak. C. A.
7th Cir. Certiorari denied. Reported below: 880 F. 3d 870.
No. 17–1597. Mullarkey v. Kauffman, Superintendent,
State Correctional Institution at Huntingdon, et al.
C. A. 3d Cir. Certiorari denied.
No. 17–6790. Wingo v. Kansas. Sup. Ct. Kan. Certiorari
denied. Reported below: 306 Kan. 995, 399 P. 3d 190.
No. 17–7141. Young v. Ocasio, Warden. C. A. 11th Cir.
Certiorari denied.
No. 17–7282. Huey v. Kansas (Reported below: 306 Kan. 1005,
399 P. 3d 211); Weis v. Kansas (306 Kan. xii, 399 P. 3d 872);
Grifn v. Kansas (306 Kan. xi, 399 P. 3d 872); Villa v. Kansas
(306 Kan. xii, 399 P. 3d 872); and Watkins v. Kansas (306 Kan.
1093, 401 P. 3d 607). Sup. Ct. Kan. Certiorari denied.
No. 17–7301. Meredith v. Kansas (Reported below: 306 Kan.
906, 399 P. 3d 859); Hill v. Kansas (306 Kan. 1043, 399 P. 3d
218); Donaldson v. Kansas (306 Kan. 998, 399 P. 3d 870);
Hirschberg v. Kansas (306 Kan. 1002, 399 P. 3d 216); Burdick
v. Kansas (306 Kan. 1036, 399 P. 3d 192); Brown v. Kansas (306
Kan. x, 399 P. 3d 872); Richardson v. Kansas (307 Kan. 2, 404
P. 3d 671); and Scuderi v. Kansas (306 Kan. 1267, 403 P. 3d
1206). Sup. Ct. Kan. Certiorari denied.
No. 17–7459. Scott v. United States. C. A. 4th Cir. Certiorari
denied. Reported below: 698 Fed. Appx. 160.
1020 OCTOBER TERM, 2017
June 25, 2018 585 U. S.
No. 17–7592. Chaney v. United States. C. A. 5th Cir.
Certiorari denied.
No. 17–7785. Stevens v. United States. C. A. 11th Cir.
Certiorari denied.
No. 17–8003. Simmons v. Kansas. Sup. Ct. Kan. Certiorari
denied. Reported below: 307 Kan. 38, 405 P. 3d 1190.
No. 17–8188. Group v. Robinson, Warden. C. A. 6th Cir.
Certiorari denied.
No. 17–8344. Tharpe v. Sellers, Warden. Sup. Ct. Ga.
Certiorari denied.
No. 17–8428. Reaves v. Jones, Secretary, Florida Department
of Corrections. C. A. 11th Cir. Certiorari denied. Reported
below: 872 F. 3d 1137.
No. 17–8572. Sughrue v. Florida et al. C. A. 11th Cir.
Certiorari denied. Reported below: 722 Fed. Appx. 895.
No. 17–8574. Jacobs v. Estefan. C. A. 11th Cir. Certiorari
denied. Reported below: 705 Fed. Appx. 829.
No. 17–8575. Linehan v. Piper. C. A. 8th Cir. Certiorari
denied.
No. 17–8577. Bailey v. Gardner et al. C. A. 4th Cir. Certiorari
denied.
No. 17–8578. Bailey v. Blake et al. C. A. 4th Cir. Certiorari
denied.
No. 17–8579. Brannan v. Kansas. Ct. App. Kan. Certiorari
denied. Reported below: 54 Kan. App. 2d xviii, 394 P. 3d 155.
No. 17–8580. Adams v. Bailey et al. C. A. 5th Cir. Certiorari
denied. Reported below: 697 Fed. Appx. 294.
No. 17–8581. Bickham v. Illinois. App. Ct. Ill., 1st Dist.
Certiorari denied. Reported below: 2017 IL App (1st) 142894–U.
No. 17–8582. Bailey v. Cumberland County, North Carolina,
et al. C. A. 4th Cir. Certiorari denied.
No. 17–8589. Rafay v. Washington. Ct. App. Wash. Certiorari
denied.
ORDERS 1021
585 U. S. June 25, 2018
No. 17–8592. Rodriguez v. Davis, Director, Texas Department
of Criminal Justice. Correctional Institutions Division.
C. A. 5th Cir. Certiorari denied.
No. 17–8593. Brooks v. Raemisch, Executive Director,
Colorado Department of Corrections, et al. C. A. 10th
Cir. Certiorari denied. Reported below: 717 Fed. Appx. 766.
No. 17–8596. Dekom v. United States District Court for
the District of Columbia. C. A. D. C. Cir. Certiorari denied.
No. 17–8597. Stevenson v. Bisbee et al. C. A. 9th Cir.
Certiorari denied. Reported below: 696 Fed. Appx. 250.
No. 17–8609. Manuel Lopez v. City of Santa Ana, California,
et al. C. A. 9th Cir. Certiorari denied. Reported
below: 698 Fed. Appx. 401.
No. 17–8610. Lepon v. Iowa. Ct. App. Iowa. Certiorari denied.
Reported below: 908 N. W. 2d 880.
No. 17–8613. Thomas v. Florida. C. A. 11th Cir. Certiorari
denied. Reported below: 706 Fed. Appx. 653.
No. 17–8620. K. H. v. Wisconsin (Reported below: 2017 WI
App 56, 377 Wis. 2d 729, 902 N. W. 2d 809); A. S. F. v. Wisconsin
(2017 WI App 56, 377 Wis. 2d 730, 902 N. W. 2d 810); and M. W.
v. Wisconsin (2017 WI App 56, 377 Wis. 2d 730, 902 N. W. 2d
810). Ct. App. Wis. Certiorari denied.
No. 17–8622. Pavon v. Texas. Ct. App. Tex., 1st Dist. Certiorari
denied.
No. 17–8641. Boyd v. CitiMortgage Inc. Ct. App. Cal., 2d
App. Dist. Certiorari denied.
No. 17–8644. Martin v. Sinclair Community College
et al. C. A. 6th Cir. Certiorari denied.
No. 17–8652. Jones v. Florida. Sup. Ct. Fla. Certiorari denied.
Reported below: 234 So. 3d 545.
No. 17–8656. Beachem v. Florida Department of Revenue,
on Behalf of Thomas. Dist. Ct. App. Fla., 2d Dist. Certiorari
denied. Reported below: 241 So. 3d 823.
1022 OCTOBER TERM, 2017
June 25, 2018 585 U. S.
No. 17–8657. Bassett v. Horton, Warden. C. A. 6th Cir.
Certiorari denied.
No. 17–8685. Bell v. Inova Health Care, dba Inova Fairfax
Hospital (two judgments). Sup. Ct. Va. Certiorari denied.
No. 17–8702. Bradley v. Wisconsin Department of Children
and Families et al. C. A. 7th Cir. Certiorari denied.
Reported below: 715 Fed. Appx. 549.
No. 17–8741. Ling Zhuang v. Appellate Division, Superior
Court of California, Los Angeles County, et al. Ct.
App. Cal., 2d App. Dist., Div. 5. Certiorari denied.
No. 17–8742. Morales v. Jones, Secretary, Florida Department
of Corrections. C. A. 11th Cir. Certiorari denied.
Reported below: 710 Fed. Appx. 362.
No. 17–8758. Khalil v. Sessions, Attorney General.
C. A. 6th Cir. Certiorari denied.
No. 17–8825. Walker v. Florida. Dist. Ct. App. Fla., 5th
Dist. Certiorari denied.
No. 17–8854. Fish v. Elon Property Management. Sup.
Ct. Fla. Certiorari denied.
No. 17–8868. Mattison v. Virginia. Sup. Ct. Va. Certiorari
denied.
No. 17–8907. Jeanbart v. Florida. Dist. Ct. App. Fla., 4th
Dist. Certiorari denied. Reported below: 236 So. 3d 427.
No. 17–8929. Isom v. Florida. Dist. Ct. App. Fla., 2d Dist.
Certiorari denied. Reported below: 236 So. 3d 1054.
No. 17–8934. Hawkins v. Kauffman, Superintendent,
State Correctional Institution at Huntingdon, et al.
C. A. 3d Cir. Certiorari denied.
No. 17–8941. Kennell v. Grifth, Warden. C. A. 8th Cir.
Certiorari denied. Reported below: 873 F. 3d 637.
No. 17–8964. Burton v. United States. C. A. 9th Cir.
Certiorari denied.
No. 17–8966. Avila-Luna v. United States. C. A. 8th Cir.
Certiorari denied.
ORDERS 1023
585 U. S. June 25, 2018
No. 17–8969. Noe v. Daniels, Warden. C. A. 9th Cir. Certiorari
denied.
No. 17–8975. Buxton v. Estock, Acting Superintendent,
State Correctional Institution at Mercer, et al. C. A.
3d Cir. Certiorari denied.
No. 17–8978. Joseph v. United States. C. A. 11th Cir.
Certiorari denied.
No. 17–8979. Amodeo v. United States. C. A. 11th Cir.
Certiorari denied.
No. 17–8980. Blanchard v. United States. C. A. 1st Cir.
Certiorari denied. Reported below: 867 F. 3d 1.
No. 17–8982. Owens v. United States. C. A. 4th Cir. Certiorari
denied. Reported below: 711 Fed. Appx. 722.
No. 17–9009. Wilson v. Gaetz et al. C. A. 7th Cir. Certiorari
denied. Reported below: 700 Fed. Appx. 540.
No. 17–9029. Smith v. United States. C. A. 4th Cir. Certiorari
denied. Reported below: 882 F. 3d 460.
No. 17–9033. Riley v. Calloway, Warden. C. A. 7th Cir.
Certiorari denied. Reported below: 882 F. 3d 738.
No. 17–9037. Gofphin v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 719 Fed. Appx. 971.
No. 17–9039. Plaketta v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 712 Fed. Appx. 677.
No. 17–9042. Jackson v. United States. C. A. 6th Cir.
Certiorari denied.
No. 17–9043. Fykes v. United States. C. A. 9th Cir. Certiorari
denied.
No. 17–9049. Sublett v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 729 Fed. Appx. 380.
No. 17–9050. Salvador v. United States. C. A. 10th Cir.
Certiorari denied. Reported below: 724 Fed. Appx. 670.
No. 17–9053. Tizoc v. United States. C. A. 8th Cir. Certiorari
denied. Reported below: 885 F. 3d 516.
1024 OCTOBER TERM, 2017
June 25, 2018 585 U. S.
No. 17–9055. Olivier v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 716 Fed. Appx. 888.
No. 17–9057. Agudo-Monroy v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 705 Fed. Appx. 666.
No. 17–9059. Rivera-Cruz v. United States. C. A. 1st Cir.
Certiorari denied. Reported below: 878 F. 3d 404.
No. 17–9061. Reyes-Ramirez v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 715 Fed. Appx. 678.
No. 17–9065. Chambers v. United States. C. A. 10th Cir.
Certiorari denied. Reported below: 882 F. 3d 1305.
No. 17–9066. Floyd v. United States. C. A. 5th Cir. Certiorari
denied.
No. 17–9067. Davis v. United States. C. A. 7th Cir.
Certiorari denied. Reported below: 712 Fed. Appx. 578.
No. 17–9068. Boaz v. United States. C. A. 8th Cir. Certiorari
denied. Reported below: 884 F. 3d 808.
No. 17–9070. Pina v. United States. C. A. 5th Cir. Certiorari
denied. Reported below: 713 Fed. Appx. 309.
No. 17–9083. Cooke v. Delaware. Sup. Ct. Del. Certiorari
denied. Reported below: 181 A. 3d 152.
No. 17–9129. Magee v. Louisiana. Ct. App. La., 1st Cir.
Certiorari denied. Reported below: 2016–1074 (La. App. 1 Cir.
4/12/17).
No. 17–423. Sterba et ux. v. PNC Bank. C. A. 9th Cir.
Certiorari denied. Justice Alito took no part in the consideration
or decision of this petition. Reported below: 852 F. 3d 1175.
No. 17–1159. Northern Arapaho Tribe et al. v. Wyoming
et al.; and
No. 17–1164. Eastern Shoshone Tribe v. Wyoming et al.
C. A. 10th Cir. Certiorari denied. Justice Gorsuch took no
part in the consideration or decision of these petitions. Reported
below: 875 F. 3d 505.
No. 17–1354. Gelhaus v. Estate of Lopez, By and
Through Successor in Interest, Lopez, et al. C. A. 9th
Cir. Motions of Peace Offcers' Research Association of CaliforORDERS
1025
585 U. S. June 25, 2018
nia et al., California State Sheriffs' Association et al., Force Litigation
Consulting LLC et al., and International Municipal Lawyers
Association et al. for leave to fle briefs as amici curiae
granted. Certiorari denied. Reported below: 871 F. 3d 998.
No. 17–1439. Vey v. Tyskiewiez. C. A. 3d Cir. Certiorari
denied. Justice Alito took no part in the consideration or decision
of this petition. Reported below: 668 Fed. Appx. 427.
No. 17–7869. Marshall v. Jones, Secretary, Florida Department
of Corrections. Sup. Ct. Fla. Motion of Promise
of Justice Initiative for leave to fle brief as amicus curiae
granted. Certiorari denied. Reported below: 226 So. 3d 211.
No. 17–8491. Peede v. Jones, Secretary, Florida Department
of Corrections, et al. C. A. 11th Cir. Certiorari denied.
Reported below: 715 Fed. Appx. 923.
Statement of Justice Sotomayor, with whom Justice
Ginsburg joins, respecting the denial of certiorari.
In his petition for writ of habeas corpus under 28 U. S. C. § 2254,
petitioner Robert Peede contended that he received ineffective
assistance of counsel during his capital sentencing proceedings
because his trial counsel did not present certain mitigating evidence
concerning his mental health and diffcult childhood. The
District Court granted habeas relief on the basis that counsel's
performance was defcient and that there was a reasonable probability
that Peede would have received a different sentence had
counsel introduced the mitigating evidence. On appeal from that
decision, the Court of Appeals for the Eleventh Circuit reversed.
In its view, Peede could not establish that he was prejudiced by
any defciency of counsel because the “new mitigation evidence
. . . posed a doubled-edge-sword dilemma” in that “the new information
could have hurt as much as it helped.” Peede v. Attorney
General of Fla., 715 Fed. Appx. 923, 931 (2017). The Eleventh
Circuit further noted that it “ha[s] repeatedly ruled that [such socalled
double-edged] post-conviction evidence is usually insuffcient
to warrant habeas relief.” Id., at 931–932.
Such a blanket rule foreclosing a showing of prejudice because
the new evidence is double edged fatly contradicts this Court's
precedent. See Rompilla v. Beard, 545 U. S. 374, 393 (2005); Wiggins
v. Smith, 539 U. S. 510, 534 (2003); Williams v. Taylor, 529
1026 OCTOBER TERM, 2017
June 25, 27, 2018 585 U. S.
U. S. 362, 398 (2000). As I recently emphasized in dissent from
the denial of certiorari in Trevino v. Davis, 584 U. S. 1019 (2018),
“[w]here . . . new evidence presented during postconviction proceedings
includes both mitigating and aggravating factors, a court
still must consider all of the mitigating evidence alongside all of
the aggravating evidence.” Id., at 1021. That is, “new evidence
must not be evaluated in isolation,” regardless of whether it is
considered to be double edged. Ibid.
Considering the posture of this case, under which our review
is constrained by the Antiterrorism and Effective Death Penalty
Act of 1996, 28 U. S. C. §§ 2254(d)(1)–(2), I cannot conclude the
particular circumstances here warrant this Court's intervention.
That said, the Eleventh Circuit's consideration of Peede's claim is
deeply concerning. The ultimate question at issue in a case like
this is whether “there is a reasonable probability that [the jury]
would have struck a different balance.” Wiggins, 539 U. S., at
537. A truncated consideration of new mitigating evidence that
simply dismisses it as double edged does nothing to further that
inquiry.
No. 17–8627. Arlotta v. Cook Moving System, Inc., et al.
C. A. 2d Cir. Certiorari before judgment denied.
No. 17–8643. Kersey v. Becton Dickinson & Co. et al.
C. A. 1st Cir. Certiorari denied. Justice Alito took no part
in the consideration or decision of this petition.
Rehearing Denied
No. 17–1362. Schneider v. Commissioner of Internal
Revenue, 584 U. S. 963;
No. 17–6721. Ontiveros-Cedillo v. United States; and
Bolanos-Galvan, aka Alvarad, aka Galvan Bolanos, aka
Bolanos Galvan v. United States, 584 U. S. 980;
No. 17–7918. In re Colen, 584 U. S. 958;
No. 17–8167. Spalding v. United States, 584 U. S. 956; and
No. 17–8204. Said v. Commissioner of Internal Revenue,
584 U. S. 955. Petitions for rehearing denied.
June 27, 2018
Certiorari Denied
No. 17–9559 (17A1412). Bible v. Davis, Director, Texas Department
of Criminal Justice, Correctional Institutions
ORDERS 1027
585 U. S. June 27, 28, 2018
Division, et al. C. A. 5th Cir. Application for stay of execution
of sentence of death, presented to Justice Alito, and by
him referred to the Court, denied. Certiorari denied. Reported
below: 739 Fed. Appx. 766.
June 28, 2018
Affrmed on Appeal
No. 16–166. Harris et al. v. Cooper, Governor of North
Carolina, et al. Affrmed on appeal from D. C. M. D. N. C.
Certiorari Granted—Reversed and Remanded. (See No. 17–742,
ante, p. 957; and No. 17–1106, ante, p. 961.)
Certiorari Granted—Vacated and Remanded
No. 16–1146. A Woman’s Friend Pregnancy Resource
Clinic et al. v. Becerra, Attorney General of California.
C. A. 9th Cir. Reported below: 669 Fed. Appx. 495;
No. 16–1153. Livingwell Medical Clinic, Inc., et al. v.
Becerra, Attorney General of California, et al. C. A.
9th Cir. Reported below: 669 Fed. Appx. 493;
No. 17–211. Mountain Right to Life, Inc., dba Pregnancy
and Family Resource Center, et al. v. Becerra, Attorney
General of California. C. A. 9th Cir. Reported below: 692
Fed. Appx. 807; and
No. 17–976. CTIA–The Wireless Assn. v. City of Berkeley,
California, et al. C. A. 9th Cir. Reported below: 854
F. 3d 1105. Certiorari granted, judgments vacated, and cases
remanded for further consideration in light of National Institute
of Family and Life Advocates v. Becerra, ante, p. 775.
No. 16–9187. Solano-Hernandez v. United States. C. A.
5th Cir. Reported below: 847 F. 3d 170; and
No. 16–9587. Villarreal-Garcia v. United States. C. A.
5th Cir. Reported below: 685 Fed. Appx. 297. Motions of petitioners
for leave to proceed in forma pauperis granted. Certiorari
granted, judgments vacated, and cases remanded for further
consideration in light of Rosales-Mireles v. United States, ante,
p. 129, and for consideration of question whether cases are
moot.
No. 17–166. Zanders v. Indiana. Sup. Ct. Ind. Certiorari
granted, judgment vacated, and case remanded for further consid1028
OCTOBER TERM, 2017
June 28, 2018 585 U. S.
eration in light of Carpenter v. United States, ante, p. 296. Reported
below: 73 N. E. 3d 178.
No. 17–981. Riffey et al. v. Rauner, Governor of Illinois,
et al. C. A. 7th Cir. Certiorari granted, judgment vacated,
and case remanded for further consideration in light of
Janus v. State, County, and Municipal Employees, ante, p. 878.
Reported below: 873 F. 3d 558.
No. 17–1050. Saldana Castillo v. Sessions, Attorney
General. C. A. 9th Cir. Certiorari granted, judgment vacated,
and case remanded for further consideration in light of Pereira v.
Sessions, ante, p. 198. Reported below: 693 Fed. Appx. 647.
No. 17–1194. International Refugee Assistance Project
et al. v. Trump, President of the United States, et al.; and
No. 17–1270. Trump, President of the United States,
et al. v. International Refugee Assistance Project et al.
C. A. 4th Cir. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of Trump v. Hawaii,
ante, p. 667. Reported below: 883 F. 3d 233.
No. 17–1356. Kaushal v. Indiana. Ct. App. Ind. Certiorari
granted, judgment vacated, and case remanded for further consideration
in light of Jae Lee v. United States, 582 U. S. 357 (2017).
Reported below: 87 N. E. 3d 56.
Justice Alito, with whom Justice Thomas joins, dissenting.
The Court grants, vacates, and remands this case in light of
Jae Lee v. United States, 582 U. S. 357 (2017). But Lee was
handed down on June 23, 2017—almost a month before the Indiana
Court of Appeals issued its decision in this case. Moreover, petitioner
admits that he cited and advanced arguments based on Lee
in both his petition for rehearing before the Indiana Court of
Appeals and his petition for transfer to the Indiana Supreme
Court. Reply Brief 3. I would accordingly deny the petition for
the reasons stated in Justice Scalia's dissenting opinion in Webster
v. Cooper, 558 U. S. 1039, 1040 (2009).
No. 17–5402. Reed v. Virginia. Sup. Ct. Va.;
No. 17–5692. Chambers, aka Sealed Defendant v. United
States. C. A. 2d Cir. Reported below: 681 Fed. Appx. 72;
No. 17–6213. Hankston v. Texas. Ct. Crim. App. Tex. Reported
below: 517 S. W. 3d 112; and
ORDERS 1029
585 U. S. June 28, 2018
No. 17–6704. Banks v. United States. C. A. 10th Cir. Reported
below: 706 Fed. Appx. 455. Motions of petitioners for
leave to proceed in forma pauperis granted. Certiorari granted,
judgments vacated, and cases remanded for further consideration
in light of Carpenter v. United States, ante, p. 296.
No. 17–5964. Thompson v. United States. C. A. 10th Cir.
Motion of petitioner for leave to proceed in forma pauperis
granted. Certiorari granted, judgment vacated, and case remanded
for further consideration in light of Carpenter v. United
States, ante, p. 296. Justice Gorsuch took no part in the consideration
or decision of this motion and this petition. Reported
below: 866 F. 3d 1149.
Certiorari Granted
No. 17–532. Herrera v. Wyoming. Dist. Ct. Wyo., Sheridan
County. Certiorari granted.
No. 17–571. Fourth Estate Public Benet Corp. v. Wall-
Street.com, LLC, et al. C. A. 11th Cir. Certiorari granted.
Reported below: 856 F. 3d 1338.
No. 17–646. Gamble v. United States. C. A. 11th Cir.
Certiorari granted. Reported below: 694 Fed. Appx. 750.
No. 17–1174. Nieves et al. v. Bartlett. C. A. 9th Cir.
Certiorari granted. Reported below: 712 Fed. Appx. 613.
No. 17–1299. Franchise Tax Board of California v.
Hyatt. Sup. Ct. Nev. Certiorari granted. Reported below:
133 Nev. 826, 407 P. 3d 717.
No. 17–1307. Obduskey v. McCarthy & Holthus LLP.
C. A. 10th Cir. Certiorari granted. Reported below: 879 F. 3d
1216.
No. 17–290. Merck Sharp & Dohme Corp. v. Albrecht
et al. C. A. 3d Cir. Certiorari granted. Justice Alito took
no part in the consideration or decision of this petition. Reported
below: 852 F. 3d 268.
Certiorari Denied
No. 16–6308. Graham v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 824 F. 3d 421.
1030 OCTOBER TERM, 2017
June 28, 2018 585 U. S.
No. 16–6761. Caira v. United States. C. A. 7th Cir. Certiorari
denied. Reported below: 833 F. 3d 803.
No. 16–7314. Antonio Rios v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 830 F. 3d 403.
No. 16–9536. Alexander v. United States. C. A. Armed
Forces. Certiorari denied. Reported below: 76 M. J. 336.
No. 17–243. Abdirahman v. United States (Reported below:
76 M. J. 337); Alirad v. United States (76 M. J. 343); Averett
v. United States (76 M. J. 345); Ayers v. United States (76
M. J. 340); Bailon v. United States (76 M. J. 345); Banks v.
United States (76 M. J. 341); Bardin v. United States (76
M. J. 410); Barksdale v. United States (76 M. J. 340); Benjamin
v. United States (76 M. J. 339); Bennett v. United States
(76 M. J. 337); Berg v. United States (76 M. J. 345); Bickerstaff
v. United States (76 M. J. 342); Birdsong v. United
States (76 M. J. 338); Blakesley v. United States (76 M. J.
338); Bonilla v. United States (76 M. J. 335); Boyd v. United
States (76 M. J. 348); Briggs v. United States (76 M. J. 338);
Brookshire v. United States (76 M. J. 341); Brown v. United
States (76 M. J. 337); Buckner v. United States (76 M. J. 341);
Bullock v. United States (76 M. J. 345); Bustamonte v.
United States (76 M. J. 342); Carroll v. United States (76
M. J. 338); Charles v. United States (76 M. J. 344); Coker v.
United States (76 M. J. 342); Coleman v. United States (76
M. J. 338); Cooper v. United States (76 M. J. 336); Cottner v.
United States (76 M. J. 341); Crews v. United States (76 M. J.
350); Cuellar v. United States (76 M. J. 398); Curry v.
United States (76 M. J. 339); Davenport v. United States (76
M. J. 340); Davis v. United States (76 M. J. 344); DeJesus v.
United States (76 M. J. 398); Delvalle v. United States (76
M. J. 342); Doherty v. United States (76 M. J. 344); Donohue
v. United States (76 M. J. 337); Dorris v. United States (76
M. J. 343); Douglas v. United States (76 M. J. 342); Dunham
v. United States (76 M. J. 340); Earle v. United States (76
M. J. 403); Echols v. United States (76 M. J. 338); Entzminger
v. United States (76 M. J. 345); Erikson v. United States (76
M. J. 231); Fletcher v. United States (76 M. J. 338); Fogle v.
United States (76 M. J. 341); Francisco v. United States (76
M. J. 339); Galvan v. United States (76 M. J. 344); Garcia v.
United States (76 M. J. 344); Garman v. United States (76
M. J. 403); George v. United States (76 M. J. 345); Girau v.
ORDERS 1031
585 U. S. June 28, 2018
United States (76 M. J. 337); Gore v. United States (76 M. J.
398); Goss v. United States (76 M. J. 354); Greene v. United
States (76 M. J. 352); Greytunkl v. United States (76 M. J.
339); Grifth v. United States (76 M. J. 338); Guice v. United
States (76 M. J. 341); Hercules v. United States (76 M. J.
341); Hirsch v. United States (76 M. J. 345); Ho v. United
States (76 M. J. 337); Hodge v. United States (76 M. J. 337);
Huertalopez v. United States (76 M. J. 345); Hughes v.
United States (76 M. J. 343); Humburd v. United States (76
M. J. 342); Jeffers v. United States (76 M. J. 339); Jewell v.
United States (76 M. J. 336); Jiminez-Victoria v. United
States (76 M. J. 354); Johnson v. United States (76 M. J. 340);
Jones v. United States (76 M. J. 339); Kargbo v. United
States (76 M. J. 403); Kelley v. United States (76 M. J. 342);
Kidd v. United States (76 M. J. 343); Kissell v. United States
(76 M. J. 335); Knoop v. United States (76 M. J. 349); Koenig
v. United States (76 M. J. 411); Koth v. United States (76
M. J. 401); Kundradurham v. United States (76 M. J. 401);
Land v. United States (76 M. J. 342); Lavasseur v. United
States (76 M. J. 338); Layton v. United States (76 M. J. 338);
LeRoy v. United States (76 M. J. 341); Lewis v. United
States (76 M. J. 341); Lowrey v. United States (76 M. J. 340);
Luna v. United States (76 M. J. 341); Maestre v. United
States (76 M. J. 341); Maez v. United States (76 M. J. 354);
Mairena v. United States (76 M. J. 345); Majetich v. United
States (76 M. J. 345); Markley v. United States (76 M. J. 342);
Martin v. United States (76 M. J. 344); Maston v. United
States (76 M. J. 345); Maydoney v. United States (76 M. J.
338); Mazzie v. United States (76 M. J. 345); McFadden v.
United States (76 M. J. 401); McGowan v. United States (76
M. J. 338); Mecker v. United States (76 M. J. 339); Medrano
v. United States (76 M. J. 354); Melvin v. United States (76
M. J. 338); Millay v. United States (76 M. J. 342); Miner v.
United States (76 M. J. 343); Montoya v. United States (76
M. J. 349); Morrill v. United States (76 M. J. 341); Murdorf
v. United States (76 M. J. 345); Murphy v. United States (76
M. J. 336); Nataren v. United States (76 M. J. 342); Nealy v.
United States (76 M. J. 341); Nyangau v. United States (76
M. J. 338); O’Connor v. United States (76 M. J. 341); Orage v.
United States (76 M. J. 345); Oscar v. United States (76 M. J.
336); Ozoskey v. United States (76 M. J. 409); Patterson v.
United States (76 M. J. 345); Perez v. United States (76 M. J.
1032 OCTOBER TERM, 2017
June 28, 2018 585 U. S.
341); Perry v. United States (76 M. J. 401); Pimentel v.
United States (76 M. J. 337); Piszcz v. United States (76 M. J.
344); Podobnik v. United States (76 M. J. 341); Pretlow v.
United States (76 M. J. 340); Prewitt v. United States (76
M. J. 337); Ramirez v. United States (76 M. J. 336); Reed v.
United States (76 M. J. 345); Rhodes v. United States (76
M. J. 341); Richardson-Hoeg v. United States (76 M. J. 336);
Rich v. United States (76 M. J. 338); Riley v. United States
(76 M. J. 342); Riley v. United States (76 M. J. 336); Rios v.
United States (76 M. J. 341); Robinson v. United States (76
M. J. 401); Rochford v. United States (76 M. J. 338); Rosado
Dejesus v. United States (76 M. J. 351); Sadler v. United
States (76 M. J. 336); Sampson v. United States (76 M. J. 345);
Sands v. United States (76 M. J. 338); Santucci v. United
States (76 M. J. 341); Sharpe v. United States (76 M. J. 401);
Shave v. United States (76 M. J. 345); Slater v. United
States (76 M. J. 345); Smith v. United States (76 M. J. 342);
Smith v. United States (76 M. J. 339); Smith v. United States
(76 M. J. 345); Solt v. United States (76 M. J. 401); Soria v.
United States (76 M. J. 341); Spriggs v. United States (76
M. J. 343); Stanford v. United States (76 M. J. 398); Stanley
v. United States (76 M. J. 341); Strempler v. United States
(76 M. J. 342); Sutton v. United States (76 M. J. 337); Taylor
v. United States (76 M. J. 338); Thomas v. United States (76
M. J. 344); Thompson v. United States (76 M. J. 344); Threat
v. United States (76 M. J. 345); Threet v. United States (76
M. J. 339); Toney v. United States (76 M. J. 402); Torres-
Garza v. United States (76 M. J. 345); Trejo v. United States
(76 M. J. 342); Tyson v. United States (76 M. J. 340); Viera v.
United States (76 M. J. 339); Villar v. United States (76
M. J. 344); Warren v. United States (76 M. J. 341); Watford
v. United States (76 M. J. 351); Watkins v. United States (76
M. J. 337); White v. United States (76 M. J. 341); Williams v.
United States (76 M. J. 341); Williams v. United States (76
M. J. 344); and Wilson v. United States (76 M. J. 345). C. A.
Armed Forces. Certiorari denied.
No. 17–425. Wass v. Idaho. Sup. Ct. Idaho. Certiorari denied.
Reported below: 162 Idaho 361, 396 P. 3d 1243.
No. 17–701. Richards v. United States. C. A. Armed
Forces. Certiorari denied. Reported below: 76 M. J. 365.
ORDERS 1033
585 U. S. June 28, 2018
No. 17–840. Cash v. United States (Reported below: 76 M. J.
438); Gurczynski v. United States (76 M. J. 441); and Williams
v. United States (77 M. J. 64). C. A. Armed Forces. Certiorari
denied.
No. 17–950. Ulbricht v. United States. C. A. 2d Cir.
Certiorari denied. Reported below: 858 F. 3d 71.
No. 17–1002. United States v. Union Pacic Railroad Co.
C. A. 8th Cir. Certiorari denied. Reported below: 865 F. 3d
1045.
No. 17–1087. First Resort, Inc. v. Herrera et al. C. A.
9th Cir. Certiorari denied. Reported below: 860 F. 3d 1263.
No. 17–1369. Mayor and City Council of Baltimore et al.
v. Greater Baltimore Center for Pregnancy Concerns,
Inc. C. A. 4th Cir. Certiorari denied. Reported below: 879
F. 3d 101.
No. 17–5943. Riley v. United States. C. A. 6th Cir. Certiorari
denied. Reported below: 858 F. 3d 1012.
No. 17–6256. Patrick v. United States. C. A. 7th Cir.
Certiorari denied. Reported below: 842 F. 3d 540.
No. 17–6892. Wilford v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 689 Fed. Appx. 727.
No. 17–7220. Bormuth v. Jackson County, Michigan. C. A.
6th Cir. Certiorari denied. Reported below: 870 F. 3d 494.
No. 17–7769. Gray v. United States. C. A. Armed Forces.
Certiorari denied. Reported below: 77 M. J. 5.
No. 16–1189. E. I. du Pont de Nemours & Co. et al. v.
Smiley et al. C. A. 3d Cir. Motions of Cato Institute and
Pacifc Legal Foundation et al. for leave to fle briefs as amici
curiae granted. Certiorari denied. Justice Alito took no part
in the consideration or decision of these motions and this petition.
Reported below: 839 F. 3d 325.
Statement of Justice Gorsuch, with whom The Chief
Justice and Justice Thomas join, respecting the denial of
certiorari.
Can an agency advance an interpretation of a statute for the
frst time in litigation and then demand deference for its view?
1034 OCTOBER TERM, 2017
Statement of Gorsuch, J. 585 U. S.
There is a well-defned circuit split on the question. The Court
of Appeals in this case said yes, joining several other circuits who
share that view. 839 F. 3d 325, 329, 333–334 (CA3 2016) (case
below); SEC v. Rosenthal, 650 F. 3d 156, 160 (CA2 2011); TVA v.
Whitman, 336 F. 3d 1236, 1250 (CA11 2003); Dania Beach v. FAA,
628 F. 3d 581, 586–587 (CADC 2010). But “[t]wo circuits, the
Sixth and Ninth, expressly deny Skidmore deference to agency
litigation interpretations, and the Seventh does so implicitly.”
Hubbard, Comment, Deference to Agency Statutory Interpretations
First Advanced in Litigation? The Chevron Two-Step and
the Skidmore Shuffe, 80 U. Chi. L. Rev. 447, 462 (2013) (footnotes
omitted); Smith v. Aegon Companies Pension Plan, 769 F. 3d
922, 929 (CA6 2014); Alaska v. Federal Subsistence Bd., 544 F. 3d
1089, 1095 (CA9 2008); In re UAL Corp. (Pilots' Pension Plan
Termination), 468 F. 3d 444, 449–450 (CA7 2006).
The issue surely qualifes as an important one. After all,
Skidmore v. Swift & Co., 323 U. S. 134 (1944), deference only
makes a difference when the court would not otherwise reach the
same interpretation as the agency. And a number of scholars
and amici have raised thoughtful questions about the propriety
of affording that kind of deference to agency litigation positions.
For example, how are people to know if their conduct is permissible
when they act if the agency will only tell them later during
litigation? Don't serious equal protection concerns arise when
an agency advances an interpretation only in litigation with full
view of who would beneft and who would be harmed? Might
the practice undermine the Administrative Procedure Act's structure
by incentivizing agencies to regulate by amicus brief, rather
than by rule? Should we be concerned that some agencies (including
the one before us) have apparently become particularly
aggressive in “attempt[ing] to mold statutory interpretation and
establish policy by fling `friend of the court' briefs in private
litigation”? Eisenberg, Regulation by Amicus: The Department
of Labor's Policy Making in the Courts, 65 Fla. L. Rev. 1223
(2013); see also, e. g., Hickman & Krueger, In Search of the Modern
Skidmore Standard, 107 Colum. L. Rev. 1235, 1303 (2007);
Pierce, Democratizing the Administrative State, 48 Wm. & Mary
L. Rev. 559, 606–607 (2006); Merrill, Judicial Deference to Executive
Precedent, 101 Yale L. J. 969, 1010–1011 (1992).
ORDERS 1035
585 U. S. June 28, 2018
Respectfully, I believe this circuit split and these questions warrant
this Court's attention. If not in this case then, hopefully,
soon.
No. 16–6694. Jordan v. United States. C. A. 4th Cir. Motion
of respondent for leave to fle brief in opposition under seal
with redacted copies for the public record granted. Certiorari
denied. Reported below: 824 F. 3d 421.
No. 17–475. Securities and Exchange Commission v. Bandimere.
C. A. 10th Cir. Certiorari denied. Justice Gorsuch
took no part in the consideration or decision of this petition. Reported
below: 844 F. 3d 1168.
No. 17–565. Rowan County, North Carolina v. Lund
et al. C. A. 4th Cir. Certiorari denied. Reported below: 863
F. 3d 268.
Justice Thomas, with whom Justice Gorsuch joins,
dissenting.
This Court's Establishment Clause jurisprudence is in disarray.
Sometimes our precedents focus on whether a “reasonable observer”
would think that a government practice endorses religion;
other times our precedents focus on whether a government practice
is supported by this country's history and tradition. See
Utah Highway Patrol Assn. v. American Atheists, Inc., 565 U. S.
994, 997–1001 (2011) (Thomas, J., dissenting from denial of certiorari);
Van Orden v. Perry, 545 U. S. 677, 694–697 (2005) (Thomas,
J., concurring). Happily, our precedents on legislative prayer
tend to fall in the latter camp. See, e. g., Town of Greece v.
Galloway, 572 U. S. 565 (2014); Marsh v. Chambers, 463 U. S.
783 (1983).
Yet the decision below did not adhere to this historical approach.
In ruling that Rowan County must change the prayers
it uses to open its board meetings, the Court of Appeals for the
Fourth Circuit emphasized that the county's prayers are led by
the legislators themselves, not by paid chaplains or guest
ministers. This analysis failed to appreciate the long history of
legislator-led prayer in this country, and it squarely contradicted
a recent decision of the Sixth Circuit. I would have granted
Rowan County's petition for certiorari.
1036 OCTOBER TERM, 2017
Thomas, J., dissenting 585 U. S.
I
Rowan County, North Carolina, is governed by a fve-member
Board of Commissioners (Board). The Board convenes twice a
month, in meetings that are open to the public. Each meeting
begins with a prayer, which the commissioners take turns leading.
Prayers usually begin with an invitation (“Let us pray,” “Let's
pray together,” “Please pray with me”) and end with a communal
“Amen.” Because the current commissioners are all Christians,
their prayers tend to reference “Jesus,” “Christ,” or the “Savior.”
But the Board does not require the commissioners to profess any
particular religion, or require the prayers to have any particular
content. The content of the prayer is entirely up to the commissioner
giving it.
Three residents of Rowan County, who were offended by the
Board's prayers, sued the county, alleging violations of the Establishment
Clause. The District Court entered summary judgment
in the residents' favor, 103 F. Supp. 3d 712, 713 (MDNC 2015),
but a divided panel of the Fourth Circuit reversed, 837 F. 3d 407,
411 (2016). On rehearing en banc, the full Fourth Circuit affrmed
the District Court's initial decision. 863 F. 3d 268, 275
(2017).
Disagreeing with the earlier panel, the en banc court began by
distinguishing this Court's decision in Town of Greece, which upheld
the prayer policy of the town of Greece in New York. The
prayers in Greece were given by “guest ministers,” the Fourth
Circuit explained, while the prayers in Rowan County are given
by the commissioners. See 863 F. 3d, at 277–278. The Fourth
Circuit deemed legislator-led prayer more suspect under the Establishment
Clause because it “identifes the government with
religion more strongly” and “heightens the constitutional risks
posed by requests to participate and by sectarian prayers.” Id.,
at 278. Since the prayers in Rowan County are legislator led,
the Fourth Circuit concluded that Town of Greece does not apply
and, thus, it “must decide whether [Rowan] [C]ounty's prayer
practice, taken as a whole,” is constitutional. 863 F. 3d, at 280.
The Fourth Circuit held that it was not, for a “combination” of
four reasons. Id., at 281. First, the prayers in Rowan County
are given exclusively by the commissioners. Id., at 281–282.
Second, of the 143 prayers that the Fourth Circuit analyzed, 139
“invoked” Christianity, only four were nonsectarian, and at least
ORDERS 1037
1035 Thomas, J., dissenting
11 “ `promote[d]' ” Christianity. Id., at 283–286. Third, the commissioners
“told attendees to rise and often invited them to pray.”
Id., at 286. Fourth, and fnally, the prayers took place in “the
intimate setting of a municipal board meeting,” where the Board
often exercises “quasi-adjudicatory power over such granular
issues as zoning petitions, permit applications, and contract
awards.” Id., at 287–288.
For these four reasons, the Fourth Circuit held that Rowan
County's prayer practice violated the Establishment Clause.
Five judges dissented, contending that the Fourth Circuit's decision
was inconsistent with this Court's precedents and this country's
“long and varied tradition of lawmaker-led prayer.” See id.,
at 301–323 (opinion of Agee, J.).
II
I would have granted certiorari in this case. The Fourth Circuit's
decision is both unfaithful to our precedents and ahistorical.
It also conficts with a recent en banc decision of the Sixth Circuit.
While the Fourth Circuit stated that a “combination” of factors
made the Board's prayers unconstitutional, id., at 281, virtually
all of the factors it identifed were present in Town of Greece.
The Fourth Circuit noted that the Board's prayers were typically
Christian and occasionally promoted Christianity at the expense
of other religions. But so did the prayers in Town of Greece.
See 572 U. S., at 578–586. The Fourth Circuit stressed that the
commissioners often asked attendees to rise and invited them to
pray. But the prayergivers in Town of Greece made the same
invitations. See id., at 588–589 (plurality opinion). The Fourth
Circuit thought that audience members would be pressured to
participate in the prayers, given the intimate setting of Board
meetings and its adjudicatory authority. But these same pressures
were present in Town of Greece. See id., at 586; id., at 610
(Thomas, J., concurring in part and concurring in judgment).
The only real difference between this case and Town of Greece
is the person leading the prayer. Prayers in Rowan County are
led by the commissioners, while prayers in Greece are led by
guest ministers. The Fourth Circuit leaned heavily on this distinction
to justify conducting its own free-foating evaluation of
Rowan County's prayers. See 863 F. 3d, at 280. But what it
should have done, under our precedents, is examine whether “his1038
OCTOBER TERM, 2017
Thomas, J., dissenting 585 U. S.
tory shows that the specifc practice [of legislator-led prayer] is
permitted.” Town of Greece, supra, at 577. If the Fourth Circuit
had conducted that inquiry, it would have found a rich historical
tradition of legislator-led prayer.
For as long as this country has had legislative prayer, legislators
have led it. Prior to Independence, the South Carolina
Provincial Congress appointed one of its members to lead the
body in prayer. See Brief for State of West Virginia et al. as
Amici Curiae 9 (States Brief ). Several States, including West
Virginia and Illinois, opened their constitutional conventions with
prayers led by convention members instead of chaplains. See
Brief for Members of Congress as Amici Curiae 10 (Congress
Brief ). The historical evidence shows that Congress and state
legislatures have opened legislative sessions with legislator-led
prayer for more than a century. See States Brief 8–19; Congress
Brief 8–9. In short, the Founders simply “did not intend to prohibit
a just expression of religious devotion by the legislators of
the nation, even in their public character as legislators.” S. Rep.
No. 376, 32d Cong., 2d Sess., 4 (1853).*
The Sixth Circuit, also sitting en banc, recently surveyed this
history and upheld a municipal prayer policy virtually identical
to Rowan County's. See Bormuth v. County of Jackson, 870
F. 3d 494 (2017). The Sixth Circuit acknowledged that its decision
was “in confict with the Fourth Circuit's” but found the
latter “unpersuasive,” id., at 509, n. 5—not least because the
Fourth Circuit “apparently did not consider the numerous examples
of [legislator-led] prayers” in our Nation's history, id., at
510. Thus, the Sixth and Fourth Circuits are now split on the
legality of legislator-led prayer. State and local lawmakers can
lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but
not in South Carolina, North Carolina, Virginia, Maryland, or
West Virginia. This Court should have stepped in to resolve
this confict.
I respectfully dissent.
*In addition to having little basis in history, the Fourth Circuit's decision
has little basis in logic. It is hard to see how prayers led by sectarian
chaplains whose salaries are paid by taxpayers—a practice this Court has
upheld, see Marsh v. Chambers, 463 U. S. 783 (1983)—could be less of a
government establishment than prayers voluntarily given by legislators.
See Bormuth v. County of Jackson, 870 F. 3d 494, 523 (CA6 2017) (en banc)
(Sutton, J., concurring).
ORDERS 1039
585 U. S. June 28, 2018
No. 17–7153. Jordan v. Mississippi; and
No. 17–7245. Evans v. Mississippi. Sup. Ct. Miss. Certiorari
denied. Reported below: No. 17–7153, 224 So. 3d 1252;
No. 17–7245, 226 So. 3d 1.
Justice Breyer, dissenting.
In my dissenting opinion in Glossip v. Gross, 576 U. S. 863
(2015), I described how the death penalty, as currently administered,
suffers from unconscionably long delays, arbitrary application,
and serious unreliability. Id., at 909. I write to underline
the ways in which the two cases currently before us illustrate the
frst two of these problems and to highlight additional evidence
that has accumulated over the past three years suggesting that
the death penalty today lacks “requisite reliability.” Id., at 910.
I
The petitioner in the frst case, Richard Gerald Jordan, was
sentenced to death nearly 42 years ago. He argues that his
execution after such a lengthy delay violates the Eighth Amendment's
prohibition on “cruel and unusual punishments.” I continue
to believe this question merits the Court's attention. See
id., at 923–938; Boyer v. Davis, 578 U. S. 965 (2016) (Breyer, J.,
dissenting from denial of certiorari) (“Richard Boyer was initially
sentenced to death 32 years ago”); Ruiz v. Texas, 580 U. S. 1191
(2017) (Breyer, J., dissenting from denial of stay of execution)
(“Petitioner Rolando Ruiz has been on death row for 22 years,
most of which he has spent in permanent solitary confnement”);
Lackey v. Texas, 514 U. S. 1045, 1046 (1995) (Stevens, J., memorandum
respecting denial of certiorari) (discussing petitioner's “17
years under a sentence of death”).
More than a century ago, the Court described a prisoner's
4-week wait prior to execution as “one of the most horrible feelings
to which [a person] can be subjected.” In re Medley, 134
U. S. 160, 172 (1890). What explains the more than 4-decade wait
in this case? Between 1976 and 1986, each of Jordan's frst three
death sentences was vacated on constitutional grounds, including
by this Court. See Jordan v. Mississippi, 476 U. S. 1101 (1986)
(vacating death sentence and remanding case in light of Skipper
v. South Carolina, 476 U. S. 1 (1986)); see also Brief in Opposition
in No. 17–7153, pp. 4–5 (“Jordan was originally convicted and
automatically sentenced to death” in July 1976—the same month
that this Court held mandatory death sentences unconstitutional
in Woodson v. North Carolina, 428 U. S. 280 (1976) (emphasis
1040 OCTOBER TERM, 2017
Breyer, J., dissenting 585 U. S.
added)). In 1998, Jordan was sentenced to death for the fourth
time. (He had entered into a plea agreement providing for a
sentence of life without parole, but the Mississippi Supreme Court
invalidated that agreement and the prosecutor refused to reinstate
it. See Jordan v. Fisher, 576 U. S. 1071 (2015) (Sotomayor,
J., dissenting from denial of certiorari).)
Jordan has lived more than half of his life on death row. He
has been under a death sentence “longer than any other Mississippi
inmate.” 224 So. 3d 1252, 1253 (Miss. 2017). The petition
states that since 1977, Jordan has been incarcerated in the Mississippi
State Penitentiary and spent “most of that time on death row
living in isolated, squalid conditions.” Pet. for Cert. in No. 17–7153,
p. 11; see also ibid. (citing Gates v. Cook, 376 F. 3d 323, 332–335 (CA5
2004) (holding that the conditions of confnement on Mississippi
State Penitentiary's death row violate the Eighth Amendment)); Robles,
The Marshall Project, Condemned to Death—and Solitary Confnement
(July 23, 2017) (reporting based upon a nationwide survey
of state corrections offcials that Mississippi is 1 among 20 States that
permit death row inmates “less than four hours of out-of-cell recreation
time each day”), https://www.themarshallproject.org/2017/07/
23/condemned-to-death-and-solitary-confnement (all Internet materials
as last visited June 27, 2018); cf. Davis v. Ayala, 576 U. S.
257, 286–287 (2015) (Kennedy, J., concurring) (noting that “the
usual pattern” of solitary confnement involves “a windowless cell
no larger than a typical parking spot” for up to “23 hours a day”).
This Court has repeated that such conditions bear “ `a further
terror and peculiar mark of infamy' [that is] added to the punishment
of death.” In re Medley, 134 U. S., at 170. Such “additional
punishment,” the Court has said, is “of the most important and painful
character.” Id., at 171. In my view, the conditions in which
Jordan appears to have been confned over the past four decades
reinforce the Eighth Amendment concern raised in his petition.
Jordan, now 72 years old, is one among an aging population of
death row inmates who remain on death row for ever longer
periods of time. Over the past decade, the percentage of death
row prisoners aged 60 or older has increased more than twofold
from around 7% in 2008 to more than 16% of the death row
population by the most recent estimate. Compare Dept. of Justice,
Bureau of Justice Statistics, T. Snell, Capital Punishment,
2008—Statistical Tables (rev. Jan. 2010) (Table 7), with Dept. of
Justice, Bureau of Justice Statistics, E. Davis & T. Snell, Capital
ORDERS 1041
1039 Breyer, J., dissenting
Punishment, 2016, p. 7 (Apr. 2018) (Table 4) (Davis & Snell).
Meanwhile, the average period of imprisonment between death
sentence and execution has risen from a little over 6 years in
1988 to more than 11 years in 2008 to more than 19 years
over the past year. See Dept. of Justice, Bureau of Justice
Statistics, T. Snell, Capital Punishment, 2013—Statistical Tables,
p. 14 (rev. Dec. 19, 2014) (Table 10); Death Penalty Information
Center (DPIC), Execution List 2018, https://deathpenaltyinfo.org/
execution-list-2018; DPIC, Execution List 2017, https://death
penaltyinfo.org/execution-list-2017; see also F. Baumgartner et al.,
Deadly Justice: A Statistical Portrait of the Death Penalty 161,
168, Fig. 8.1 (2018) (analyzing recent data showing that “nationally,
each passing year is associated with approximately 125 additional
days of delay from crime to execution”).
II
In addition, both Richard Jordan's case and that of Timothy
Nelson Evans, the second petitioner here, illustrate the problem
of arbitrariness. To begin with, both were sentenced to death in
the Second Circuit Court District of Mississippi. Evans says that
district accounts for “the largest number of death sentences” of
any of the State's 22 districts since 1976. Pet. for Cert. in
No. 17–7245, pp. 5–6; see also App. D to Pet. for Cert. (citing
death sentencing data maintained by Mississippi's Offce of the
State Public Defender).
This geographic concentration refects a nationwide trend.
Death sentences, while declining in number, have become increasingly
concentrated in an ever-smaller number of counties. In the
mid-1990's, more than 300 people were sentenced to death in
roughly 200 counties each year. B. Garett, End of Its Rope: How
Killing the Death Penalty Can Revive Criminal Justice 138–140
(2017). By comparison, these numbers have declined dramatically
over the past three years. A recent study fnds, for example,
that in 2015, all of those who were sentenced to death nationwide
(51 people in total) were sentenced in 38 of this Nation's
more than 3,000 counties; in 2016, all death sentences (31 in total)
were imposed in just 28 counties nationwide (fewer than 1% of
counties). Id., at 139–140, Fig. 6.2; see also Garrett, Jakubow, &
Desai, The American Death Penalty Decline, 107 J. Crim. L. & C.
561, 564, 584 (2017); Fair Punishment Project, Too Broken To Fix:
Part I: An In-Depth Look at America's Outlier Death Penalty
1042 OCTOBER TERM, 2017
Breyer, J., dissenting 585 U. S.
Counties 2 (2016) (citing data indicating there were 16 counties,
or 0.5% of all counties nationwide, in which fve or more death
sentences were imposed from 2010 to 2015); cf. M. Radelet, History
of the Death Penalty in Colorado 168 (2017) (explaining that
Colorado's three death row inmates “[a]ll were prosecuted in the
same judicial district, all the cases came from Aurora, all are
young black men, and indeed all attended the same high school”);
Joint State Government Commission, Capital Punishment in
Pennsylvania: Report of the Task Force and Advisory Committee
90 (June 2018) (“[D]ifferences among counties in death penalty
outcomes . . . were the largest and most prominent differences
found in the study. In a very real sense, a given defendant's
chance of having the death penalty sought, retracted, or imposed
depends upon where that defendant is prosecuted and tried”
(quotation altered)); Glossip, 576 U. S., at 918–920 (Breyer, J.,
dissenting).
This geographic arbitrariness is aggravated by the fact that
defnitions of death eligibility vary depending on the State. This
Court has repeated that “[c]apital punishment must be limited to
those offenders who commit a narrow category of the most serious
crimes,” Roper v. Simmons, 543 U. S. 551, 568 (2005) (internal
quotation marks omitted), since “the culpability of the average
murderer is insuffcient to justify the most extreme sanction available
to the State,” Atkins v. Virginia, 536 U. S. 304, 319 (2002).
But the statutory criteria States enact to distinguish a non-deatheligible
murder from a particularly heinous death-eligible murder
and thus attempt to use to identify the “worst of the worst”
murderers are far from uniform. See Baumgartner, supra, at
90–115 (reviewing data collected in a “host” of empirical studies
showing “that nearly all homicides in a given state are deatheligible”).
For instance, as Evans argues, Mississippi is one of a small
number of States in which defendants may be (and, in Mississippi's
Second Circuit Court District, routinely are) sentenced to death
for, among other things, felony robbery murder without any fnding
or proof of intent to kill. Pet. for Cert. in No. 17–7245, at
4–5, and nn. 3–4; see also id., at 8, n. 10; Miss. Code Ann. §§ 97–
3–19(2)(e), (f ), 99–19–101(5)(d) (2017); McCord & Harmon, Lethal
Rejection: An Empirical Analysis of the Astonishing Plunge in
Death Sentences in the United States From Their Post-Furman
Peak, 81 Albany L. Rev. 1, 32–33, and n. 155, Table 10 (2018)
ORDERS 1043
1039 Breyer, J., dissenting
(citing data indicating the general decline in robbery as an aggravating
factor and research arguing that relying upon robbery as
a sole aggravator is generally insuffcient to identify the “worst
of the worst”). And the Court recently considered a petition
presenting “unrebutted” evidence that “about 98% of frst-degree
murder defendants in Arizona were eligible for the death penalty”
under Arizona's death penalty statute, which allows for imposition
of the death penalty for “felony murder based on 22 possible
predicate felony offenses . . . including, for example, transporting
marijuana for sale.” Hidalgo v. Arizona, 583 U. S. 1196, 1198,
1201 (2018) (Breyer, J., statement respecting denial of certiorari).
I recognize that only a small fraction of the roughly 8,000 death
sentences imposed since 1976 have resulted in executions. Executions
continue to decline from the modern peak of 98 executions
occurring across 72 counties and 20 States in 1999 to 28 executions
in 22 counties across 6 States in 2015. Baumgartner, supra, at
328. In 2016, 20 people were executed. That number remains
the fewest executions in more than a century, just below the 23
executions that took place in 2017. See Davis & Snell 8, 15.
More than 700 people await execution on California's death row
but the State, which has executed 13 people since 1976, has not
carried out an execution since 2006. Id., at 3; DPIC, State by
State Database: California, https://deathpenaltyinfo.org/state_by_
state. The State of Mississippi, which has executed a total of 21
people since 1976, has not carried out an execution in more than
six years. DPIC, State by State Database: Mississippi, https://
deathpenaltyinfo.org/state_by_state. This data suggests that the
death penalty may eventually disappear. But it also shows that
capital punishment is “unusual” (as well as “cruel”).
III
Finally, I note that in the past three years, further evidence
has accumulated suggesting that the death penalty as it is applied
today lacks “requisite reliability.” Glossip, 576 U. S., at 910
(Breyer, J., dissenting). Four hours before Willie Manning was
slated to die by lethal injection, the Mississippi Supreme Court
stayed his execution and on April 21, 2015, he became the fourth
person on Mississippi's death row to be exonerated. Id., at 927;
National Registry of Exonerations (June 25, 2018), https://
www.law.umich.edu/special/exoneration/Pages/detaillist.aspx.
Since January 2017, six death row inmates have been exonerated.
1044 OCTOBER TERM, 2017
June 28, July 16, 2018 585 U. S.
See DPIC, Description of Innocence, https://deathpenaltyinfo.org/
innocence-cases#157. Among them are Rodricus Crawford,
Rickey Dale Newman, Gabriel Solache, and Vicente Benavides
Figueroa, whose exonerations were based upon evidence of actual
innocence. See National Registry of Exonerations, supra.
* * *
In my view, many of the capital cases that come before this
Court, often in the form of petitions for certiorari, involve, like
the cases of Richard Jordan and Timothy Evans, special problems
of cruelty or arbitrariness. Hence, I remain of the view that the
Court should grant the petitions now before us to consider
whether the death penalty as currently administered violates the
Constitution's Eighth Amendment.
July 16, 2018
Rehearing Denied
No. 16–9318. Maldonado-Landaverde v. United States,
584 U. S. 977;
No. 17–656. Audatex North America, Inc. v. Mitchell
International, Inc., 584 U. S. 961;
No. 17–1139. Aames v. United States et al., 584 U. S. 931;
No. 17–1192. Tirat-Gefen v. Batista Almeida, 584 U. S. 962;
No. 17–1271. Kanofsky v. Commissioner of Internal Revenue,
584 U. S. 950;
No. 17–1311. Coulter v. Coulter, 584 U. S. 993;
No. 17–1313. DEK–M Nationwide, Ltd. v. Hill et al., 584
U. S. 979;
No. 17–1315. Cooper v. Countrywide Home Loans, Inc.,
et al., 584 U. S. 993;
No. 17–1347. Castillo v. Doral Park Country Club Villas
et al., 584 U. S. 979;
No. 17–7448. Martinez-Hernandez v. United States, 583
U. S. 1137;
No. 17–7675. Soro v. Keyes Co., 584 U. S. 936;
No. 17–7738. Cotton v. County of San Bernardino, California,
et al., 584 U. S. 937;
No. 17–7742. Ong Vue v. Dowling, Warden, 584 U. S. 937;
No. 17–7746. Mackey v. Berryhill, Deputy Commissioner
for Operations, Social Security Administration, 584 U. S.
937;
ORDERS 1045
585 U. S. July 16, 30, 2018
No. 17–7921. Weible v. California, 584 U. S. 939;
No. 17–7922. Worth v. New York, 584 U. S. 965;
No. 17–7951. Austin v. Jacksonville Sheriff’s Ofce, 584
U. S. 965;
No. 17–7956. Tedesco v. Pennsylvania, 584 U. S. 965;
No. 17–8017. Adamson v. Grifn, Superintendent, Green
Haven Correctional Facility, 584 U. S. 982;
No. 17–8032. Steele v. Thomas, Warden, 584 U. S. 953;
No. 17–8036. Alston v. City of Madison, Wisconsin, et al.,
584 U. S. 941;
No. 17–8042. Peyton v. Brown et al., 584 U. S. 982;
No. 17–8069. Buxton v. Hill et al., 584 U. S. 982;
No. 17–8111. Klug v. English, Warden, et al., 584 U. S.
944;
No. 17–8207. Troy-McKoy v. University of Illinois et al.,
584 U. S. 995;
No. 17–8218. Washington v. Diamond, 584 U. S. 966;
No. 17–8239. Buxton v. Thompson, Superintendent, State
Correctional Institution at Mercer, et al., 584 U. S. 1005;
No. 17–8256. Cromartie v. Alabama State University
et al., 584 U. S. 1005;
No. 17–8372. Cerny et al. v. Securities and Exchange
Commission, 584 U. S. 985;
No. 17–8513. Valdez Perez v. California, ante, p. 1007; and
No. 17–8559. In re Jones, 584 U. S. 975. Petitions for rehearing
denied.
No. 16–9660. Larios-Villatoro v. United States; and
Hernandez-Hernandez v. United States, 584 U. S. 973. Petition
for rehearing as to Jaime A. Hernandez-Hernandez denied.
July 30, 2018
Miscellaneous Order
No. 18A65. United States et al. v. United States District
Court for the District of Oregon et al. Application
for stay, presented to Justice Kennedy, and by him referred to
the Court, denied. The Government's request for relief is premature
and is denied without prejudice. The breadth of respondents'
claims is striking, however, and justiciability of those claims
presents substantial grounds for difference of opinion. The District
Court should take these concerns into account in assessing
1046 OCTOBER TERM, 2017
July 30, August 1, 6, 2018 585 U. S.
burdens of discovery and trial, as well as desirability of a prompt
ruling on the Government's pending dispositive motions.
August 1, 2018
Miscellaneous Order. (For Court's order making allotment of
Justices, see ante, p. iii.)
August 6, 2018
Certiorari Granted—Vacated and Remanded
No. 17–243. Abdirahman v. United States . . . Briggs v.
United States. Petition for rehearing granted. The order entered
June 28, 2018, [ante, p. 1030] denying petition for writ of
certiorari vacated as to petitioner Michael Briggs. Certiorari as
to Michael Briggs granted, judgment vacated, and case remanded
for further consideration in light of United States v. Mangahas,
77 M. J. 220 (2018).
Miscellaneous Orders
No. 17A1425. Qorane, aka Gaas v. Sessions, Attorney
General. Application for stay, presented to Justice Sotomayor
and referred to the Court, denied.
No. 17–765. United States v. Stitt. C. A. 6th Cir.; and
No. 17–766. United States v. Sims. C. A. 8th Cir. [Certiorari
granted, 584 U. S. 949.] Motion of petitioner to dispense with
printing joint appendix granted.
Rehearing Granted. (See No. 17–243, supra.)
Rehearing Denied
No. 16–6777. Morton v. Perry, Secretary, North Carolina
Department of Public Safety, 580 U. S. 1072;
No. 17–1336. Coulter v. Lindsay et al., 584 U. S. 1001;
No. 17–1407. Roeder v. Schmidt, Attorney General of
Kansas, 584 U. S. 1032;
No. 17–1431. Grace et al. v. Securities and Exchange
Commission, 584 U. S. 994;
No. 17–1435. O’Leary v. Ofce of Personnel Management
et al., 584 U. S. 1014;
No. 17–1481. Green v. Mnuchin, Secretary of the Treasury,
584 U. S. 1033;
ORDERS 1047
585 U. S. August 6, 2018
No. 17–6596. Miller v. United States, 584 U. S. 964;
No. 17–7328. Isaacson v. Davis, Director, Texas Department
of Criminal Justice, Correctional Institutions Division,
583 U. S. 1185;
No. 17–7832. Delgado v. Godinez et al., 584 U. S. 952;
No. 17–7850. Phillip v. McArdle, 584 U. S. 964;
No. 17–7973. Roosevelt W. et al. v. Los Angeles County
Department of Children and Family Services, 584 U. S. 966;
No. 17–7978. Lucy v. Grow, 584 U. S. 981;
No. 17–8072. Liggins v. JPMorgan Chase Bank, N. A., 584
U. S. 982;
No. 17–8091. Nelson v. Amalgamated Transit Union
Local 1181–1061, AFL–CIO, et al., 584 U. S. 983;
No. 17–8098. Karabajakyan v. Berryhill, Deputy Commissioner
for Operations, Social Security Administration,
584 U. S. 983;
No. 17–8208. Burnett v. BAC Home Loans Servicing, LP,
et al., 584 U. S. 1004;
No. 17–8225.
No. 17–8226.
U. S. 955;
No. 17–8248.
No. 17–8257.
No. 17–8262.
No. 17–8263.
No. 17–8264.
No. 17–8265.
No. 17–8266.
No. 17–8267.
No. 17–8268.
No. 17–8269.
No. 17–8276.
967;
No. 17–8290.
In re Christian, 584 U. S. 1000;
Echols v. CSX Transportation, Inc., 584
Ciotta v. Holland, Warden, 584 U. S. 1005;
Sivak v. Idaho, 584 U. S. 984;
Woodson v. United States, 584 U. S. 995;
Woodson v. United States, 584 U. S. 995;
Woodson v. United States, 584 U. S. 995;
Woodson v. United States, 584 U. S. 995;
Woodson v. United States, 584 U. S. 995;
Woodson v. United States, 584 U. S. 996;
Woodson v. United States, 584 U. S. 996;
Woodson v. United States, 584 U. S. 996;
Alexander v. Williams, Warden, 584 U. S.
Wright v. Bayview Loan Servicing, LLC,
et al. (two judgments), 584 U. S. 1006;
No. 17–8422. Donahue v. Pennsylvania, 584 U. S. 1035;
No. 17–8424. Abela v. Washington, Director, Michigan
Department of Corrections, 584 U. S. 1006;
No. 17–8425. In re Sevion-El, 584 U. S. 958;
No. 17–8447. Coates, aka Simmons, aka Thomas v. Sessions,
Attorney General, 584 U. S. 1036;
1048 OCTOBER TERM, 2017
August 6, 9, 2018 585 U. S.
No. 17–8493. Viola v. United States, 584 U. S. 997;
No. 17–8504. Carpenter v. City of Chicago, Illinois,
et al., ante, p. 1007;
No. 17–8505. Bozic v. Wetzel, Secretary, Pennsylvania
Department of Corrections, 584 U. S. 1037;
No. 17–8517. Okhio v. United States, 584 U. S. 988;
No. 17–8723. Duckett v. Marsh, Superintendent, State
Correctional Institution at Benner Township, et al., 584
U. S. 1018;
No. 17–8754. Jackson v. Alabama Board of Pardon and
Paroles, 584 U. S. 1038; and
No. 17–8890. Phillips v. Trump, President of the United
States, ante, p. 1008. Petitions for rehearing denied.
No. 16–763. Ke Kailani Development LLC et al. v. Ke
Kailani Partners, LLC, et al., 580 U. S. 1117. Motion for
leave to fle petition for rehearing denied.
No. 17–8334. Chon v. United States et al., 584 U. S. 1010.
Petition for rehearing denied. Justice Gorsuch took no part in
the consideration or decision of this petition.
August 9, 2018
Miscellaneous Orders
No. 18A142. Irick v. Tennessee. Application for stay of execution
of sentence of death, presented to Justice Kagan, and
by her referred to the Court, denied.
Justice Sotomayor, dissenting.
Tonight the State of Tennessee intends to execute Billy Ray
Irick using a procedure that he contends will amount to excruciating
torture. During a recent 10-day trial in the state court, medical
experts explained in painstaking detail how the three-drug
cocktail Tennessee plans to inject into Irick's veins will cause him
to experience sensations of drowning, suffocating, and being
burned alive from the inside out. Abdur'Rahman v. Parker,
No. 18–183–II(III) (Ch. Ct. Davidson Cty., Tenn., July 26, 2018),
p. 21, and n. 7 (generally crediting the testimony of plaintiffs'
experts); Application for Stay of Execution 8–11 (summarizing
that testimony); see also Arthur v. Dunn, 580 U. S. 1141, 1142 (2017)
(Sotomayor, J., dissenting from denial of certiorari). The entire
process will last at least 10 minutes, and perhaps as many as 18,
ORDERS 1049
1048 Sotomayor, J., dissenting
before the third drug (potassium chloride) fnally induces fatal
cardiac arrest. No. 18–183–II(III), at 25–26. Meanwhile, as a
result of the second drug (vecuronium bromide), Irick will be
“entirely paralyzed, unable to move or scream.” Arthur, 580
U. S., at 1142 (opinion of Sotomayor, J.).
But Irick may well be aware of what is happening to him. In
theory, the frst drug in the three-drug protocol, midazolam, is
supposed to render a person unable to feel pain during an execution.
But the medical experts who testifed here explained that
midazolam would not work, and the trial court credited that testimony.
Application for Stay of Execution 8–11; No. 18–183–
II(III), at 21; see also Arthur, 580 U. S., at 1145–1146 (opinion of
Sotomayor, J.) (describing similar evidence in that case). If the
drug indeed fails, the consequences for Irick will be extreme:
Although the midazolam may temporarily render Irick unconscious,
the onset of pain and suffocation will rouse him. And it
may do so just as the paralysis sets in, too late for him to alert
bystanders that his execution has gone horribly (if predictably)
wrong.
The State does not appear to have rebutted meaningfully any of
this evidence.1 See No. 18–183–II(III), at 21, n. 7 (“The Defendants'
1 I say “appear,” and give only a general description of the evidence apparently
introduced at trial, because in the rushed context of this emergency
application, the trial record is not before this Court. I therefore rely on the
state courts' orders and the parties' flings to discern what that record is
likely to show.
The application comes to this Court in a hurried posture because Tennessee
frst adopted its current midazolam-based protocol only in January of
this year. No. M1987–00131–SC–DPE–DD (Tenn., Aug. 6, 2018), p. 2. Irick,
along with 32 coplaintiffs also under sentence of death, promptly challenged
it. Ibid. With Irick's August 9 execution date looming, the parties and the
court brought this complex case to trial in a matter of months. See ibid.
The trial court issued its decision on July 26, Irick fled a notice of appeal
and moved to vacate his execution date on July 30, and a divided Supreme
Court of Tennessee denied Irick's motion August 6. Id., at 3, 6. In the
meantime, the Tennessee Court of Appeals issued an order advising that it
would not have suffcient time to consider the issues raised by Irick's appeal
before his scheduled execution. Abdur'Rahman v. Parker, No. M2018–
01385–COA–R3–CV (July 30, 2018). Given the precipitous pace of proceedings,
the Tennessee Supreme Court rendered its decision on Irick's motion
to vacate without the beneft of the pleadings, trial transcripts, or exhibits
on which the trial court relied in reaching its decision. No. M1987–00131–
SC–DPE–DD, at 4 (Lee, J., dissenting).
1050 OCTOBER TERM, 2017
Sotomayor, J., dissenting 585 U. S.
two experts, while qualifed, did not have the research knowledge
and [e]minent publications that Plaintiffs' experts did”). As
noted above, the trial court credited the evidence put on by Irick
and his coplaintiffs, fnding that they “established that midazolam
does not elicit strong analgesic [i. e., pain-inhibiting] effects,” and
that therefore Irick “may be able to feel pain from the administration
of the second and third drugs.” Id., at 21. Those are the
drugs that will paralyze him and create sensations of suffocation
and of burning that “ `may well be the chemical equivalent of
being burned at the stake' ” before eventually stopping his heart.
Arthur, 580 U. S., at 1142 (opinion of Sotomayor, J.) (quoting
Glossip v. Gross, 576 U. S. 863, 949 (2015) (Sotomayor, J., dissenting)).
Accounts from other executions carried out using midazolam
lend troubling credence to the trial court's fnding. See
No. 18–183–II(III), at 28 (noting testimony describing inmates' “grimaces,
clenched fsts, furrowed brows, and moans” during lethal
injection executions, including by use of midazolam); Glossip, 576
U. S., at 966–968 (Sotomayor, J., dissenting).
Given the Eighth Amendment's prohibition on “cruel and unusual
punishments,” one might think that such a fnding would
resolve this case in Irick's favor. And to stay or delay Irick's
execution, the Tennessee Supreme Court needed only to conclude
that it is likely (not certain) that Irick can persuade an appellate
court that his claim has merit. See Tenn. Sup. Ct. Rule 12(4)(E)
(2017); No. M1987–00131–SC–DPE–DD (Tenn., Aug. 6, 2018), p. 3.
But the Tennessee Supreme Court did not fnd any such likelihood
and declined to postpone Irick's execution to allow appellate
review of his claims. Id., at 3–5. The court instead effectively
let stand the trial court's order, which held that Irick's extensive
and persuasive evidence describing the ordeal that awaits him
raised no constitutional concerns. The trial court offered two
independent reasons for its holding: frst, that Irick had not
proved that another, less painful method of killing him was available
to the State; and second, even assuming Irick had proved a
readily available alternative, that this Court would not consider
the painful ordeal that Irick faces suffciently torturous to violate
the Eighth Amendment. No. 18–183–II(III), at 9, 21–22. Thereafter,
the Tennessee Supreme Court refused to postpone Irick's
execution on the ground that he was unlikely to succeed in disturbing
the trial court's no-available-alternative holding on appeal.
No. M1987–00131–SC–DPE–DD, at 4. The court did not directly
ORDERS 1051
1048 Sotomayor, J., dissenting
address the trial court's second rationale, but implied that it
agreed. See id., at 5.
In Glossip v. Gross, 576 U. S. 863, this Court did impose the
“perverse requirement that inmates offer alternative methods for
their own executions. ” McGehee v. Hutchinson, 581 U. S.
933, 935 (2017) (Sotomayor, J., dissenting from denial of application
for stay and denial of certiorari). Without the trial court
record before me, I cannot say defnitively that the Tennessee
courts are wrong that Irick failed to carry that burden. But
Irick's contentions raise serious questions about the courts'
conclusion.
Irick raised two different alternative methods in the trial court:
a single-drug procedure using only a drug called pentobarbital or,
alternatively, a modifcation of the current procedure to omit the
administration of vecuronium bromide as a paralytic at its second
step. Tennessee argued, and the trial court found, that pentobarbital
was currently unavailable to the State notwithstanding
its efforts to fnd a supplier. No. 18–183–II(III), at 9–19. Irick
claims, however, that the court improperly ignored indirect evidence
proving pentobarbital's availability. If that contention is
accurate, then that could constitute legal error. Further, Irick
maintains the trial court improperly refused to permit him to
amend the pleadings to argue that simply omitting the paralytic
drug would be a suitable alternative, see No. M1987–00131–SC–
DPE–DD, at 4–5, even though it appears such an amendment
might not have necessitated any additional testimony, see
No. M1987–00131–SC–DPE–DD, at 5–6 (Lee, J., dissenting).2 The
record would shed light on the validity of Irick's contentions.
If Irick did fail to plead and prove at least one available alternative,
this case further illustrates the error of this Court's “macabre
challenge” to condemned prisoners that they must propose an
alternative method for their own executions. Arthur, 580 U. S.,
at 1141 (opinion of Sotomayor, J.). But given the life-or-death
stakes of determining whether the trial court erred in concluding
that Irick failed to prove an alternative means of execution, and
because Irick makes a nonfrivolous contention that the trial court
did so err, see No. M1987–00131–SC–DPE–DD, at 4–6 (Lee, J.,
2 Irick contends that his evidence shows that omitting the paralytic would
hasten his death and shorten his suffering. Application for Stay of Execution
12, 16.
1052 OCTOBER TERM, 2017
August 9, 2018 585 U. S.
dissenting), I would grant the stay to allow the state courts more
time to consider Irick's claims. See Barefoot v. Estelle, 463 U. S.
880, 895 (1983).
As to the prediction that this Court would deem up to 18 minutes
of needless torture anything less than cruel, unusual, and
unconstitutional, I fervently hope the state courts were mistaken.
At a minimum, their conclusion that the Constitution tolerates
what the State plans to do to Irick is not compelled by Glossip,
which did not categorically determine whether a lethal injection
protocol using midazolam is a constitutional method of execution.
See Arthur, 580 U. S., at 1150 (opinion of Sotomayor, J.). Glossip's
majority concluded only that, based on the evidence presented
in that case, there was no clear error in the District Court's
factual fnding that midazolam was highly likely to prevent a
person from feeling pain. 580 U. S., at 1150 (opinion of Sotomayor,
J.) (citing Glossip, 576 U. S., at 881). As noted, the trial
court here came to a different factual conclusion based on a different
factual record, as have others. See McGehee, 581 U. S., at
935 (opinion of Sotomayor, J.) (noting a District Court's “wellsupported
fnding that midazolam creates a substantial risk of
severe pain”); Otte v. Morgan, 582 U. S. 955, 956 (2017) (Sotomayor,
J., dissenting from denial of application for stay and denial
of certiorari) (similar).
If it turns out upon more sober appellate review that this case
presents the question, I would grant certiorari to decide the important
question whether the Constitution truly tolerates executions
carried out by such quite possibly torturous means.
* * *
In refusing to grant Irick a stay, the Court today turns a blind
eye to a proven likelihood that the State of Tennessee is on the
verge of inficting several minutes of torturous pain on an inmate
in its custody, while shrouding his suffering behind a veneer of
paralysis. I cannot in good conscience join in this “rush to execute”
without frst seeking every assurance that our precedent
permits such a result. No. M1987–00131–SC–DPE–DD, at 1 (Lee,
J., dissenting). If the law permits this execution to go forward
in spite of the horrifc fnal minutes that Irick may well experience,
then we have stopped being a civilized nation and accepted
barbarism. I dissent.
No. 142, Orig. Florida v. Georgia. Ralph I. Lancaster, Esq.,
of Portland, Me., the Special Master in the case, is hereby disORDERS
1053
585 U. S. August 9, 17, 24, 2018
charged with the thanks of the Court. It is ordered that the
Honorable Paul J. Kelly, Jr., of Santa Fe, N. M., is appointed
Special Master in this case with authority to fx the time and
conditions for the fling of additional pleadings, to direct subsequent
proceedings, to summon witnesses, to issue subpoenas, and
to take such evidence as may be introduced and such as he may
deem it necessary to call for. The Special Master is directed to
submit reports as he may deem appropriate. The cost of printing
his reports, and all other proper expenses, including travel expenses,
shall be submitted to the Court.* [For earlier decision
herein, see, e. g., ante, p. 803.]
No. 18–5495 (18A145). In re Irick. Application for stay of
execution of sentence of death, presented to Justice Kagan, and
by her referred to the Court, denied. Petition for writ of habeas
corpus denied.
August 17, 2018
Dismissal Under Rule 46
No. 17–804. EVE–USA, Inc., et al. v. Mentor Graphics
Corp. C. A. Fed. Cir. Certiorari dismissed under this Court's
Rule 46.1. Reported below: 851 F. 3d 1275.
August 24, 2018
Miscellaneous Orders
No. 18A16. Chasson, aka Alias, aka Hason v. Sessions,
Attorney General. Application for stay, addressed to The
Chief Justice and referred to the Court, denied.
No. 17–71. Weyerhaeuser Co. v. United States Fish and
Wildlife Service et al. C. A. 5th Cir. [Certiorari granted,
583 U. S. 1101.] Motion of respondents Markle Interests, LLC,
et al. for divided argument denied.
No. 17–571. Fourth Estate Public Benet Corp. v. Wall-
Street.com, LLC, et al. C. A. 11th Cir. [Certiorari granted,
ante, p. 1029.] Motion of petitioner to dispense with printing
joint appendix granted.
No. 17–587. Mount Lemmon Fire District v. Guido et al.
C. A. 9th Cir. [Certiorari granted, 583 U. S. 1155.] Motion of
*[Reporter’s Note: For amendment of this order, see post, p. 1057.]
1054 OCTOBER TERM, 2017
August 24, 2018 585 U. S.
the Solicitor General for leave to participate in oral argument as
amicus curiae and for divided argument granted.
No. 17–1026. Garza v. Idaho. Sup. Ct. Idaho. [Certiorari
granted, ante, p. 1002.] Motion of petitioner to dispense with
printing joint appendix granted.
No. 17–1091. Timbs v. Indiana. Sup. Ct. Ind. [Certiorari
granted, ante, p. 1002.] Motion of petitioner to dispense with
printing joint appendix granted.
No. 17–1299. Franchise Tax Board of California v.
Hyatt. Sup. Ct. Nev. [Certiorari granted, ante, p. 1029.] Motion
of petitioner to dispense with printing joint appendix
granted.
Rehearing Denied
No. 16–6308. Graham v. United States, ante, p. 1029;
No. 16–6694. Jordan v. United States, ante, p. 1035;
No. 17–565. Rowan County, North Carolina v. Lund
et al., ante, p. 1035;
No. 17–970. Stanford v. Browne et al., ante, p. 1003;
No. 17–1467. Geddes et al. v. People’s Counsel of Baltimore
County et al., ante, p. 1018;
No. 17–1488. Timbes v. Deutsche Bank National Trust
Co. et al., ante, p. 1018;
No. 17–1489. Braddock v. Jolie et al., ante, p. 1018;
No. 17–1495. Roberts v. FNB South of Alma, Georgia,
ante, p. 1005;
No. 17–1527. Crampton v. Commission for Lawyer Discipline
of the State Bar of Texas, ante, p. 1005;
No. 17–7136. Thomas v. Perry, Warden, 583 U. S. 1130;
No. 17–7220. Bormuth v. Jackson County, Michigan, ante,
p. 1033;
No. 17–7664. Williams v. Florida Department of Corrections
et al., 584 U. S. 936;
No. 17–7769. Gray v. United States, ante, p. 1033;
No. 17–7884. Badmus v. Mutual of Omaha Insurance Co.,
584 U. S. 1004;
No. 17–7889. Davis, aka Strong v. Pennsylvania, 584 U. S.
939;
ORDERS 1055
585 U. S. August 24, 29, 2018
No. 17–7891. Bluefeld v. Cohen et al., 584 U. S. 965;
No. 17–8000. Bethune v. Metropolitan Transportation
Authority/Long Island Bus et al., 584 U. S. 981;
No. 17–8081. Pettaway v. Teachers Insurance and Annuity
Association of America et al., 584 U. S. 982;
No. 17–8273. Brower v. Michigan, 584 U. S. 1005;
No. 17–8350. Mohajer v. JPMorgan Chase Bank, N. A.,
et al., 584 U. S. 1016;
No. 17–8469. In re Raa, ante, p. 1002;
No. 17–8548. Childress v. City of Charleston Police Department
et al., ante, p. 1007;
No. 17–8575. Linehan v. Piper, ante, p. 1020;
No. 17–8591. Coad v. United States, 584 U. S. 1007;
No. 17–8609. Manuel Lopez v. City of Santa Ana, California,
et al., ante, p. 1021;
No. 17–8698. Chun Hei Lam v. United States, 584 U. S.
1009;
No. 17–8702. Bradley v. Wisconsin Department of Children
and Families et al., ante, p. 1022;
No. 17–8757. Leonard v. Oregon et al., ante, p. 1008;
No. 17–8811. In re Mason, ante, p. 1015;
No. 17–8848. In re Smotherman, 584 U. S. 1031; and
No. 17–8946. Maldonado v. United States, ante, p. 1009.
Petitions for rehearing denied.
August 29, 2018
Miscellaneous Order
No. 18A146. Food Marketing Institute v. Argus Leader
Media, dba Argus Leader. Application to recall and stay the
mandate, presented to Justice Gorsuch, and by him referred to
the Court, granted, and the mandate of the United States Court
of Appeals for the Eighth Circuit in case No. 17–1346 is recalled
and stayed pending the timely fling and disposition of a petition
for writ of certiorari. Should the petition for writ of certiorari
be denied, this stay shall terminate automatically. In the event
the petition for writ of certiorari is granted, the stay shall terminate
upon the sending down of the judgment of this Court. Justice
Ginsburg, Justice Sotomayor, and Justice Kagan would
deny the application.
1056 OCTOBER TERM, 2017
August 30, September 4, 7, 18, 20, 2018 585 U. S.
August 30, 2018
Miscellaneous Order
No. 18A118. Fulton et al. v. City of Philadelphia, Pennsylvania,
et al. Application for injunctive relief, presented to
Justice Alito, and by him referred to the Court, denied. Justice
Thomas, Justice Alito, and Justice Gorsuch would grant
the application.
September 4, 2018
Dismissal Under Rule 46
No. 17–8654. Almighty Supreme Born Allah v. Milling
et al. C. A. 2d Cir. Certiorari dismissed under this Court's
Rule 46. Reported below: 876 F. 3d 48.
September 7, 2018
Miscellaneous Order
No. 18A240. Michigan State A. Philip Randolph
Institute et al. v. Johnson, Michigan Secretary of
State. C. A. 6th Cir. Application to vacate stay, presented to
Justice Kagan, and by her referred to the Court, denied. Justice
Ginsburg and Justice Sotomayor would grant the
application.
September 18, 2018
Miscellaneous Order
No. 18A274. Crossroads Grassroots Policy strategies v.
Citizens for Responsibility and Ethics in Washington
et al. D. C. D. C. Application for stay, presented to The
Chief Justice, and by him referred to the Court, denied. The
order heretofore entered by The Chief Justice is vacated.
September 20, 2018
Dismissal Under Rule 46
No. 17–667. Pioneer Centres Holding Company Stock
Ownership Plan and Trust et al. v. Alerus Financial,
N. A. C. A. 10th Cir. Certiorari dismissed under this Court's
Rule 46.1. Reported below: 858 F. 3d 1324.
ORDERS 1057
585 U. S. September 24, 25, 27, 2018
September 24, 2018
Miscellaneous Orders
No. 17–647. Knick v. Township of Scott, Pennsylvania,
et al. C. A. 3d Cir. [Certiorari granted, 583 U. S. 1166.] Motion
of the Solicitor General for leave to participate in oral argument
as amicus curiae and for divided argument granted.
No. 17–765. United States v. Stitt. C. A. 6th Cir.; and
No. 17–766. United States v. Sims. C. A. 8th Cir. [Certiorari
granted, 584 U. S. 949.] Joint motion of respondents for divided
argument denied. Motion of respondent Jason D. Sims for
appointment of counsel granted, and Jeffrey L. Fisher, of Stanford,
Cal., is appointed to serve as counsel for respondent Jason
D. Sims in No. 17–766.
September 25, 2018
Miscellaneous Order
No. 142, Orig. Florida v. Georgia. The August 9, 2018,
order in this case is amended to provide that the compensation
of a legal assistant for the Special Master shall be charged against
and borne by the parties in such proportion as the Court may
hereafter direct. The cost of printing the Special Master's reports,
and all other proper expenses, including travel expenses,
shall be submitted to the Court. [For earlier order herein, see,
e. g., ante, p. 1052.]
September 27, 2018
Miscellaneous Order
No. 18–6086 (18A311). In re Acker. Application for stay of
execution of sentence of death, presented to Justice Alito, and
by him referred to the Court, denied. Petition for writ of habeas
corpus denied.
Certiorari Granted
No. 17–1201. Thacker et ux. v. Tennessee Valley Authority.
C. A. 11th Cir. Certiorari granted.* Reported below:
868 F. 3d 979.
*[Reporter’s Note: For amendment of this order, see, post, p. 1058.]
1058 OCTOBER TERM, 2017
September 27, 28, 2018 585 U. S.
No. 18–96. Tennessee Wine and Spirits Retailers Assn.
v. Byrd, Executive Director of the Tennessee Alcoholic
Beverage Commission, et al. C. A. 6th Cir. Certiorari
granted. Reported below: 883 F. 3d 608.
No. 17–1471. Home Depot U. S. A., Inc. v. Jackson. C. A.
4th Cir. Certiorari granted. In addition to the questions presented
by the petition, the parties are directed to brief and argue
the following question: “Should this Court's holding in Shamrock
Oil & Gas Corp. v. Sheets, 313 U. S. 100 (1941)—that an original
plaintiff may not remove a counterclaim against it—extend
to third-party counterclaim defendants?” Reported below: 880
F. 3d 165.
No. 17–1484. Azar, Secretary of Health and Human
Services v. Allina Health Services et al. C. A. D. C. Cir.
Certiorari granted limited to the following question: “Whether 42
U. S. C. § 1395hh(a)(2) or § 1395hh(a)(4) required the Department
of Health and Human Services to conduct notice-and-comment
rulemaking before providing the challenged instructions to a
Medicare Administrator Contractor making initial determinations
of payments due under Medicare.” Reported below: 863 F. 3d
937.
No. 17–1625. Rimini Street, Inc., et al. v. Oracle USA,
Inc., et al. C. A. 9th Cir. Certiorari granted. Justice Alito
took no part in the consideration or decision of this petition. Reported
below: 879 F. 3d 948.
Certiorari Denied
No. 18–6075 (18A310). Acker v. Texas. Ct. Crim. App. Tex.
Application for stay of execution of sentence of death, presented
to Justice Alito, and by him referred to the Court, denied.
Certiorari denied.
September 28, 2018
Miscellaneous Order
No. 17–1201. Thacker et ux. v. Tennessee Valley Authority.
C. A. 11th Cir. [Certiorari granted, ante, p. 1057.]
Order granting petition for writ of certiorari amended as follows:
Certiorari granted limited to Question 1 presented by the
petition.
1059
STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF, AND REMAINING ON DOCKETS AT CONCLUSION OF OCTOBER TERMS 2015, 2016, AND 2017
ORIGINAL
PAID
IN FORMA PAUPERIS
TOTALS
2015
2016
2017
2015
2016
2017
2015
2016
2017
2015
2016
2017
Number of cases on dockets ------------Number of cases disposed of duringterm-----------------------------------------remaining on dockets ---------81
71
81
1,8391,539
1,8501,505
2,0621,740
5,6884,966
5,4774,752
5,3204,465
7,5356,506
7,3346,258
7,3906,206
7
6
7
300
345
322
722
725
855
1,029
1,076
1,184
Cases argued during term ----------------------------------------------------------------------------------------------------------------Number disposed of by full opinions ---------------------------------------------------------------------------------------------disposed of by per curiam opinions-----------------------------------------------------------------------------------set for reargument --------------------------------------------------------------------------------------------------------Cases granted review this term ---------------------------------------------------------------------------------------------------------reviewed and decided without oral argument ------------------------------------------------------------------------------Total cases to be available for argument at outset of following term --------------------------------------------------------TERMS
2015
2016
2017
82701208114031
716812756632
6963607810338
June 29, 2018
I N D E X
(Vol. 585 U. S.)
ADMINISTRATIVE LAW JUDGES. See Constitutional Law, I, 1.
AGENCY FEES. See Constitutional Law, IV, 3.
ANTISTEERING CONTACT PROVISIONS. See Antitrust Law.
ANTITRUST LAW.
Federal antitrust law—Antisteering provisions.—American Express'
antisteering provisions in its merchant contracts—which prohibit merchants
from avoiding fees by discouraging customers' American Express
card use at point of sale—do not violate federal antitrust law. Ohio v.
American Express Co., p. 529.
APPOINTMENTS CLAUSE. See Constitutional Law, I.
ARTICLE III COURTS. See Constitutional Law, I.
ARTICLE III STANDING.
Gerrymandering claim based on statewide injury—Lack of Article III
standing.—Plaintiff Wisconsin Democratic voters, who rested their claim
of unconstitutional partisan gerrymandering on statewide injury, have
failed to demonstrate Article III standing. Gill v. Whitford, p. 48.
CALIFORNIA. See Constitutional Law, IV, 2.
CELLULAR TELEPHONE RECORDS. See Constitutional Law, V.
COMMERCE CLAUSE. See Constitutional Law, II.
COMPENSATION. See Railroad Retirement Tax Act of 1937.
CONSTITUTIONAL LAW.
I. Appointments Clause.
1. Administrative Law Judges.—Securities and Exchange Commission
administrative law judges are “Offcers of the United States,” subject to
Appointments Clause. Lucia v. SEC, p. 237.
2. Court of Appeals of the Armed Forces.—Military Judge Mitchell's
simultaneous service on an Air Force appeals court and Court of Military
1061
1062 INDEX
CONSTITUTIONAL LAW—Continued.
Commission Review violated neither 10 U. S. C. § 973(b)(2)(A) nor Appointments
Clause. Ortiz v. United States, p. 427.
II. Dormant Commerce Clause.
State requirement that non-State corporations collect and pay use tax
on sales shipped to State—Overruled precedents.—Quill Corp. v. North
Dakota, 504 U. S. 298, and National Bellas Hess, Inc. v. Department of
Revenue of Ill., 386 U. S. 753—which held that a State cannot require an
out-of-state seller with no physical presence in State to collect and remit
sales taxes on goods seller ships to consumers in State—are overruled.
South Dakota v. Wayfair, Inc, p. 162.
III. Double Jeopardy.
Consent to severance of charges—Legal acquittal at frst trial.—Because
Currier consented to a severance of multiple charges against him,
his second trial and resulting conviction, following an acquittal at his frst
trial, did not violate Double Jeopardy Clause. Currier v. Virginia, p. 493.
IV. Freedom of Speech.
1. Ban on political apparel at polling locations.—Minnesota's ban on
political apparel at polling places violates First Amendment's Free Speech
Clause. Minnesota Voters Alliance v. Mansky, p. 1.
2. California Reproductive Freedom, Accountability, Comprehensive
Care, and Transparency Act—Likelihood of success on First Amendment
claim.—Petitioners are likely to succeed on their claim that FACT Act
violates First Amendment. National Institute of Family and Life Advocates
v. Becerra, p. 755.
3. Overruling of Supreme Court precedent—Nonconsensual extraction
of agency fees from public employees.—State of Illinois' extraction of
agency fees from nonconsenting public-sector employees violates First
Amendment; Abood v. Detroit Bd. of Ed., 431 U. S. 209, which concluded
otherwise, is overruled. Janus v. State, County, and Municipal Employees,
p. 878.
V. Searches and Seizures.
Searches and seizures—Access to cell-phone records—Probable cause
requirement.—The Government's acquisition of Carpenter's cell-site records
from his wireless carriers was a Fourth Amendment search; and Government
did not obtain a warrant supported by probable cause before
acquiring those records. Carpenter v. United States, p. 296.
CONTRACTS. See Antitrust Law.
CREDIT CARD SURCHARGES. See Antitrust Law.
INDEX 1063
CRIMINAL LAW. See Constitutional Law; Probable Cause for
Arrest.
CRIMINAL SENTENCING. See United States Sentencing
Guidelines.
DAMAGES. See Patent Act.
DORMANT COMMERCE CLAUSE. See Constitutional Law, II.
DOUBLE JEOPARDY. See Constitutional Law, III.
EMPLOYEE STOCK OPTIONS. See Railroad Retirement Tax Act
of 1937.
EQUITABLE RELIEF. See Preliminary Injunctions.
ESTABLISHMENT CLAUSE. See Immigration Law.
EXTRATERRITORIALITY. See Patent Act.
FEDERAL COURTS OF APPEALS. See Constitutional Law, I, 2;
United States Sentencing Guidelines, 2.
FEDERAL RULES OF CIVIL PROCEDURE.
Interpretation of foreign law—Foreign government's statements not
binding on federal courts.—A federal court determining foreign law under
Federal Rule of Civil Procedure 44.1 should accord respectful consideration
to a foreign government's submission, but court is not bound to
accord conclusive effect to foreign government's statements. Animal Science
Products, Inc. v. Hebei Welcome Pharmaceutical Co, p. 33.
FEDERAL RULES OF CRIMINAL PROCEDURE. See United
States Sentencing Guidelines.
FEDERAL SENTENCING GUIDELINES. See United States Sentencing
Guidelines.
FIFTH AMENDMENT. See Constitutional Law, III.
FIRST AMENDMENT. See Constitutional Law, IV; Probable
Cause to Arrest.
FLORIDA. See Interstate Apportionment of Water.
FOREIGN GOVERNMENTS. See Federal Rules of Civil Procedure.
FOREIGN LAW. See Federal Rules of Civil Procedure.
FOURTH AMENDMENT. See Constitutional Law, V.
FREEDOM OF SPEECH. See Constitutional Law, IV.
GEORGIA. See Interstate Apportionment of Water.
1064 INDEX
GERRYMANDERING. See Article III Standing; Preliminary
Injunctions.
HABEAS CORPUS.
Federal habeas relief—Ineffective-assistance-of-counsel claim.—Ninth
Circuit erred in reversing a denial of federal habeas relief on the ground
that state court had unreasonably rejected respondent's ineffectiveassistance-
of-counsel claim. Sexton v. Beaudreaux, p. 961.
ILLINOIS. See Constitutional Law, IV, 3.
IMMIGRATION LAW.
Presidential discretion in immigration matters—Presidential proclamation
suspending entry of aliens.—President has lawfully exercised
broad discretion granted to him under 8 U. S. C. § 1182(f ) to suspend entry
of aliens into the United States; respondents have not demonstrated a
likelihood of success on merits of their claim that Presidential Proclamation
No. 9645 violates Establishment Clause. Trump v. Hawaii, p. 667.
INEFFECTIVE ASSISTANCE OF COUNSEL. See Habeas Corpus.
INTERNATIONAL TRAVEL RESTRICTIONS. See Immigration
Law.
INTERSTATE APPORTIONMENT OF WATER.
Apportionment of water—Legally suffcient showing of effective remedial
decree.—Florida has made a legally suffcient showing as to possibility
of fashioning an effective remedial decree equitably apportioning water
from an interstate river basin. Florida v. Georgia, p. 803.
JUDICIAL DISCRETION. See United States Sentencing Guidelines,
1.
LEGAL NOTICE. See Immigration Law.
LOST PROFITS. See Patent Act.
MARYLAND. See Preliminary Injunctions.
MINNESOTA. See Constitutional Law, IV, 1.
NONPERMANENT RESIDENTS. See Immigration Law.
NORTH CAROLINA. See Racial Gerrymandering.
PATENT ACT.
Domestic application of the law—Damages in a patent action.—The
focus of Patent Act's general damages provision, 35 U. S. C. § 284, in a case
involving infringement under § 271(f )(2) is on act of exporting components
from United States; therefore, WesternGeco's award for lost profts was
INDEX 1065
PATENT ACT—Continued.
a permissible domestic application of § 284, not an extraterritorial one.
WesternGeco LLC v. ION Geophysical Corp, p. 407.
POLICE OFFICERS. See Qualifed Immunity From Suit.
POLITICAL SPEECH. See Constitutional Law, IV, 1.
PRELIMINARY INJUNCTIONS.
Motion for preliminary injunction in gerrymandering case—Political
retaliation.—Because balance of equities and public interest tilt against
preliminary injunction motion of plaintiffs claiming that a Maryland congressional
district was gerrymandered to retaliate against them for their
political views, District Court did not abuse its discretion in denying motion.
Benisek v. Lamone, p. 155.
PRESIDENTIAL PROCLAMATIONS. See Immigration Law.
PROBABLE CAUSE REQUIREMENT. See Constitutional Law, V.
PROBABLE CAUSE TO ARREST.
Existence of probable cause—Claim of retaliatory arrest.—The existence
of probable cause for Lozman's arrest for disrupting a city council
meeting does not bar his First Amendment retaliatory arrest claim under
circumstances of this case. Lozman v. Riviera Beach, p. 87.
PUBLIC-SECTOR EMPLOYEES. See Constitutional Law, IV, 3.
QUALIFIED IMMUNITY FROM SUIT.
Qualifed immunity of police offcers—Insuffcient grounds for holding
offcers entitled to relief—Legitimate law enforcement interests.—
Tenth Circuit erred in holding that police offcers were entitled to qualifed
immunity without considering ground on which offcers were present in
petitioner's home and nature of any legitimate law enforcement interests
that might have justifed their order that petitioner stop praying at specifc
time in question. Sause v. Bauer, p. 957.
RACE DISCRIMINATION. See Racial Gerrymandering.
RACIAL GERRYMANDERING.
1. Presumption of legislative good faith in redistricting context—Impermissible
racial gerrymander found.—District Court disregarded presumption
of legislative good faith and improperly reversed burden of proof
when it required State to show a lack of discriminatory intent in adopting
new districting plans; one of challenged State House districts is an impermissible
racial gerrymander. Abbott v. Perez, p. 579.
2. Redrawing of legislative districts—Remedy fashioned by court.—
District Court's order is affrmed insofar as it provided a court-drawn
1066 INDEX
RACIAL GERRYMANDERING—Continued.
remedy for Senate Districts 21 and 28 and House Districts 21 and 57 and
reversed as to court's actions concerning legislature's redrawing of House
districts in Wake and Mecklenburg Counties. North Carolina v. Covington,
p. 969.
RAILROAD RETIREMENT TAX ACT OF 1937.
Taxability of employee stock options.—Employee stock options are not
taxable “compensation” under Railroad Retirement Tax Act of 1937.
Wisconsin Central Ltd. v. United States, p. 274.
RATIONAL BASIS TEST. See United States Sentencing Guidelines,
1.
REDISTRICTING PLANS. See Racial Gerrymandering.
REMOVAL PROCEEDINGS. See Immigration Law.
Removal proceedings—Defective notice to appear—Calculation of continuous
residence.—A putative notice sent to a nonpermanent resident to
appear at a removal proceeding that fails to designate a specifc time or
place for that proceeding does not end continuous residence period calculation
necessary for possible cancellation of individual's removal. Pereira
v. Sessions, p. 198.
REPRODUCTIVE HEALTH. See Constitutional Law, IV, 2.
RETALIATION ACTIONS. See Preliminary Injunctions; Probable
Cause to Arrest.
RIPARIAN RIGHTS. See Interstate Apportionment of Water.
SALES AND USE TAXES. See Constitutional Law, II.
SEARCHES AND SEIZURES. See Constitutional Law, V.
SECURITIES AND EXCHANGE COMMISSION. See Constitutional
Law, I, 1.
SEPARATION OF POWERS. See Constitutional Law, I.
STANDING. See Article III Standing.
TAX COLLECTION. See Constitutional Law, II.
TAXABLE INCOME. See Railroad Retirement Tax Act of 1937.
UNITED STATES SENTENCING GUIDELINES.
1. Sentence reduction—Demonstration of rational basis.—Because
record in this case demonstrates that judge had a reasoned basis for his
decision, judge's explanation for reducing, under 18 U. S. C. § 3582(c)(2),
petitioner's sentence to middle rather than bottom of amended Federal
Guidelines range was adequate. Chavez-Meza v. United States, p. 109.
INDEX 1067
UNITED STATES SENTENCING GUIDELINES—Continued.
2. Vacation of criminal sentence—Miscalculation of sentencing guidelines.—
A miscalculation of a Federal Guidelines sentencing range that has
been determined to be plain and to affect a defendant's substantial rights
calls for a court of appeals to exercise its discretion under Federal Rule
of Criminal Procedure 52(b) to vacate defendant's sentence in ordinary
case. Rosales-Mireles v. United States, p. 129.
VIRGINIA. See Constitutional Law, III.
WATER RIGHTS. See Interstate Apportionment of Water.
WISCONSIN. See Article III Standing.
WORDS AND PHRASES.
1. Taxable “compensation.” Railroad Retirement Tax Act of 1937, 26
U. S. C. § 3231(e)(1). Wisconsin Central Ltd. v. United States, p. 274.
2. “Offcers of the United States.” U. S. Const., Art. II, § 2, cl. 2.
Lucia v. SEC, p. 237.