517BV$spin 12-29-98 08:22:00 UNITED STATES REPORTS 517 OCT. TERM 1995 In Memoriam CHIEF JUSTICE WARREN E. BURGER 517bv$titl 01-05-99 12:09:35 UNITED STATES REPORTS VOLUME 517 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1995 Opinions of March 20 Through (in part) June 13, 1996 Orders of March 20 Through June 13, 1996 Together With Opinion of Individual Justice in Chambers FRANK D. WAGNER reporter of decisions WASHINGTON : 1999 Printed on Uncoated Permanent Printing Paper For sale by the U. S. Government Printing Office Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328 517BV$$iii 01-05-99 12:12:51 PGT * frtbx n J USTICES of the SU PREM E COU RT during the time of these reports WILLIAM H. REHNQUIST, Chief Justice. JOHN PAUL STEVENS, Associate Justice. SANDRA DAY O'CONNOR, Associate Justice. ANTONIN SCALIA, Associate Justice. ANTHONY M. KENNEDY, Associate Justice. DAVID H. SOUTER, Associate Justice. CLARENCE THOMAS, Associate Justice. RUTH BADER GINSBURG, Associate Justice. STEPHEN BREYER, Associate Justice. retired LEWIS F. POWELL, Jr., Associate Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. BYRON R. WHITE, Associate Justice. HARRY A. BLACKMUN, Associate Justice. officers of the court JANET RENO, Attorney General. DREW S. DAYS III, Solicitor General. WILLIAM K. SUTER, Clerk. FRANK D. WAGNER, Reporter of Decisions. DALE E. BOSLEY, Marshal. SHELLEY L. DOWLING, Librarian. iii 517BV$$$iv 01-05-99 12:12:59 PGT * frtbx n SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, effective September 30, 1994, viz.: For the District of Columbia Circuit, William H. Rehnquist, Chief Justice. For the First Circuit, David H. Souter, Associate Justice. For the Second Circuit, Ruth Bader Ginsburg, Associate Justice. For the Third Circuit, David H. Souter, Associate Justice. For the Fourth Circuit, William H. Rehnquist, Chief Justice. For the Fifth Circuit, Antonin Scalia, Associate Justice. For the Sixth Circuit, John Paul Stevens, Associate Justice. For the Seventh Circuit, John Paul Stevens, Associate Justice. For the Eighth Circuit, Clarence Thomas, Associate Justice. For the Ninth Circuit, Sandra Day O'Connor, Associate Justice. For the Tenth Circuit, Stephen Breyer, Associate Justice. For the Eleventh Circuit, Anthony M. Kennedy, Associate Justice. For the Federal Circuit, William H. Rehnquist, Chief Justice. September 30, 1994. (For next previous allotment, and modifications, see 502 U. S., p. vi, 509 U. S., p. v, and 512 U. S., p. v.) iv 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n PROCEEDINGS IN THE SUPREME COURT OF THE UNITED STATES IN MEMORY OF CHIEF JUSTICE BURGER* TUESDAY, APRIL 30, 1996 Present: Chief Justice Rehnquist, Justice Stevens, Justice O'Connor, Justice Scalia, Justice Kennedy, Justice Souter, Justice Thomas, Justice Ginsburg, and Justice Breyer. The Chief Justice said: The Court is in special session this afternoon to receive the Resolutions of the Bar of the Supreme Court in tribute to our late colleague and friend, Chief Justice Warren Earl Burger. The Court recognizes the Solicitor General. Mr. Solicitor General addressed the Court as follows: Mr. Chief Justice, and may it please the Court: At a meeting of the members of the Bar of the Supreme Court this afternoon, resolutions memorializing our regard for the Honorable Warren E. Burger and expressing our pro- found sorrow at his death were unanimously adopted. With the Court's leave, and following recent precedent, I shall read selectively from the resolutions at this time and shall *Chief Justice Burger, who retired from the Court effective September 26, 1986 (478 U. S. vii), died in Washington, D. C., on June 25, 1995 (515 U. S. iii). v 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n vi CHIEF JUSTICE BURGER ask that they be set forth in their entirety in the records of the Court. RESOLUTION Warren Earl Burger served the Court and the country as Chief Justice of the United States from 1969 until his retire- ment in 1986. Lawyer, administrator, and jurist, Warren Burger embodied the finest traditions of American law in a career that spanned 65 years. Chief Justice Burger was very much a product of this Nation, a practical man with a passion for freedom and an understanding of the responsibilities that freedom entails. As a judge, he understood that the exercise of liberty must be guided by our traditions constrained by the rule of law. As an administrator, he sought tirelessly to improve the ways in which the legal system works for the people it is supposed to serve. Above all, as a lawyer, he knew the im- portance of tempering abstract legal doctrine with common sense. The resolution describes Burger's birth and early life in Minnesota, how he worked his way through college and law school and quickly established himself as one of the preemi- nent lawyers in the State's private bar, his marriage to El- vera Stromberg, who would be his lifelong companion, and commitment to his family, and his increasing involvement in the affairs of his community. An incident of that time helps illustrate Burger's personal commitment to the principles that animate the Constitution. After Pearl Harbor, there was widespread support for the policy of forcibly relocating California's Japanese Americans. The young St. Paul lawyer's voice was one of the few to argue that these citizens' constitutional rights ought not be sacrificed to popular passion. He organized a committee of the Council on Human Rela- tions to help resettle some of them in Minnesota, and opened his home to one family for nearly a year while the father looked for work. Although Burger refused all requests that he run for pub- lic office, he became deeply involved in Minnesota political 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n CHIEF JUSTICE BURGER vii life. At the 1952 Republican National Convention, he was instrumental in swinging his State delegation to support Dwight D. Eisenhower, thereby assuring General Eisen- hower the party's nomination. Following the election, President Eisenhower called him to Washington to serve as an Assistant Attorney General of the United States in charge of the Civil Division. The resolution discusses his outstanding contributions at the helm of the Civil Division until his appointment, 3 years later, to the United States Court of Appeals for the District of Columbia. At that time, the Federal courts of the District of Colum- bia had the widest jurisdiction of any courts in the United States, functioning as the equivalent of State courts for the District itself, as well as having the regular jurisdiction of other Federal courts. Judge Burger quickly found himself embroiled in impor- tant controversies regarding the criminal law that were sweeping both the legal profession and the Nation at the time. Burger's opinions, whether for the court or in dissent, grew to the view that solicitude for the rights of the defend- ant should be tempered by recognition of the need to enforce the law, yet he was reluctant to press to overrule prior deci- sions, preferring instead to curtail their reach while preserv- ing their essence. The resolution then describes aspects of Burger's tenure at the D. C. Circuit, which established him as a leader on his court and throughout the Nation. When Chief Justice Earl Warren retired, President Nixon turned to Warren E. Burger. With the unanimous endorse- ment of the Judiciary Committee, Burger was quickly con- firmed by the Senate. He was sworn in as Chief Justice of the United States on June 23, 1969. There were many who expected that as Chief Justice he would try to overturn the landmark criminal law decisions of the Warren Court, but neither those who hoped for this outcome, nor those who feared it, seemed to have considered 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n viii CHIEF JUSTICE BURGER that one of the hallmarks of this judge was respect for precedent. Chief Justice Burger cared too deeply for the great institu- tion that is the Supreme Court of the United States to be- lieve that its decisions, the articulation of our Nation's high- est law, could be tossed aside whenever there was a change of personnel on the bench. His approach to major criminal law precedents such as Miranda v. Arizona and Mapp v. Ohio was to leave such rulings intact, while defining their outer limits. Under his leadership, for instance, the Court held that an otherwise inadmissible statement could be used to impeach a defendant's credibility at trial. He joined in one opinion establishing a public safety exception to Miranda and, in another, deciding that a confession obtained in violation of Miranda did not taint a second valid confession obtained later. Similarly, the Court he led trimmed the exclusionary rule enshrined in Mapp by carving out good faith exceptions. Burger's conservatism was of that American strain which insists that the law protect the individual from the excesses of State power. He was to state clearly and repeatedly that he would never vote to overrule Miranda because to do so would be an invitation to lawlessness by law enforcement authorities. He concurred in decisions extending to misdemeanor cases the right of indigent defendants to counsel, and recognizing a defendant's right to a psychiatrist if necessary for his defense. Chief Justice Burger placed a premium on protecting individual liberties. His strong commitment to the First Amendment values of freedom of speech and the press can be seen in many of his opinions. In Wooley v. Maynard, for example, he authored the opin- ion holding that a State may not compel an individual to carry on his license plate a slogan offensive to his deeply held views. 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n CHIEF JUSTICE BURGER ix Yet Burger also recognized that our freedoms are not absolute, that there are limits beyond which we may not go without trampling on the rights of others. In Miller v. California, Chief Justice Burger crafted the definition of obscenity that we use today. Further, in declaring that it was up to local juries applying contemporary community standards to decide whether a par- ticular work fit the Court's formulation, he put to rest the idea that there was some uniform national community stand- ard in such matters. The resolution describes The Chief Justice's commitment to the freedom of conscience exemplified by his opinions for the Court interpreting the religion clauses in cases such as Lemon v. Kurtzman and Wisconsin v. Yoder. Turning to Burger's contributions to the area of civil rights, the resolution observes that, as district courts became involved in complicated questions of quotas, racial balance, redrawing of school district lines, busing and more, many doubted the propriety of the Court's involvement at all, and some believed that Chief Justice Burger was hostile to such efforts. He put disbelief to rest in Swann v. Charlotte- Mecklenburg Board of Education. Writing for a unanimous Court, The Chief Justice emphatically affirmed the vital role of the Federal courts in eliminating all vestiges of racial seg- regation from public school systems. In other civil rights cases, he led the Court in upholding congressional set-asides of a percentage of public works funds for minority businesses, invalidating State aid to ra- cially segregated private schools, and sustaining the Internal Revenue Service's denial of tax exemptions to private schools that practice racial discrimination. During Chief Justice Burger's tenure, the Court also adopted a progressive approach to the rights of women and members of other disadvantaged groups under the Equal Protection Clause. His own more significant opinions in- cluded Reed v. Reed, striking down a State statute giving 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n x CHIEF JUSTICE BURGER preference to men over women in estate administrations, and Hishon v. King and Spalding, applying Title VII's prohibi- tion of sex discrimination to law firm partnership decisions. He voted to end gender classifications on social security dependent benefits and jury selection, and to declare invalid State laws restricting aliens' access to public employment and welfare benefits. After discussing Burger's role in Roe v. Wade and its progeny, the resolution turns to The Chief Justice's extraor- dinary contributions to this Court's separation of powers jurisprudence. Warren Burger was intensely interested in American Government. He understood fully the concerns that had led the Framers to separate Government power among compet- ing and mutually restraining legislative, executive, and judi- cial branches. In a case that produced one of his most im- portant opinions, Immigration and Naturalization Service v. Chadha, the Court invalidated the device known as the one-House veto. History will surely view Chief Justice Burger's opinion for the Court in another separation of powers case as the most significant of his career, indeed as one of the most important opinions of any justice at any time. United States v. Nixon was to lead directly to the resignation of a President. The special prosecutor's indictment of certain defendants in the Watergate affair was being hampered by President Nixon's refusal to turn over tapes and other records of con- versations between him and others, including Government officials. The President, like several of his predecessors, claimed ex- ecutive privilege. The district court had ruled that the spe- cial prosecutor had rebutted the presumption of privilege and ordered an in camera examination of the subpoenaed material. The Chief Justice's opinion for the Court upheld the valid- ity of the district court's order. The President's generalized assertion of privilege could not prevail over the fundamental demands of due process of law and the fair administration of 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n CHIEF JUSTICE BURGER xi criminal justice. It would have to yield to the demonstrated specific need for evidence in a pending criminal trial. Chief Justice Burger's interest in American Government also served him well as the administrative leader of the third branch. Indeed, he took his title, Chief Justice of the United States, seriously. In his eyes, its mandate encompassed stewardship of the entire judicial system, State and Federal. His role in reforming the American judicial system was profound. He was an active leader of the Federal judiciary as Chairman of the Judicial Conference of the United States. He turned the Federal Judicial Center, of which he was Chairman of the Board by statute, into a respected source of research and writing about the courts, and a rich educational resource. He promoted the idea of circuit executives, offi- cials who now contribute so much to the efficient working of our courts. In addition to his many contributions toward beneficial change, Chief Justice Burger revered this Court's history and saw its building not just as a courtroom and chambers, but as an opportunity to educate the public. A guiding spirit of the Supreme Court Historical Society and creator of the position of Curator of the Supreme Court, Burger helped to fill empty spaces with exhibits and to rekindle discussion and debate about our constitutional heritage. The resolution finally recounts the qualities that mark The Chief Justice as a man of great warmth and kindness. This was a man who, for example, conceived and personally super- vised the construction of a ramp to enable Justice Douglas to take his place at the bench after the latter's stroke. He was a man who, for more than 10 years, sent pins garnered in his world travels to the handicapped child of a former clerk. Many could not comprehend why Warren Burger would leave one of the most powerful positions in Government to serve as Chair of the Commission on the Bicentennial of the United States Constitution. They did not know the man, with his love of that normal document, his understanding of our Nation's traditions, his 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n xii CHIEF JUSTICE BURGER appreciation of the lessons of history, and his faith in the power of education. There was no one in the United States more suited to the task, and no role more fitting as a cap- stone to his distinguished career. We cherish this image of Warren Burger as a teacher of fundamental democratic values to the Nation's children and to us all. Wherefore, it is accordingly RESOLVED that we, the Bar of the Supreme Court of the United States, express our profound sorrow that Chief Jus- tice Warren E. Burger is no longer with us, our admiration for his deep understanding of our history and traditions as a Nation, and his commitment to those wide restraints that make us free, and our gratitude for his ceaseless labors to improve the administration of the Nation's system of justice; and it is further RESOLVED that the Solicitor General be asked to pre- sent these resolutions to the Court, and that the Attorney General be asked to move that they be inscribed upon the Court's permanent records. The Chief Justice said: Thank you, Mr. Solicitor General. I recognize the Attor- ney General of the United States. Attorney General Reno addressed the Court as follows: Mr. Chief Justice, and may it please the Court: The Bar of this Court met today to honor the memory of Warren Earl Burger, The Chief Justice of the United States from 1969 to 1986. Born in St. Paul in 1907 to a family of modest means, War- ren Burger was raised on a small truck farm in Stacy, Minne- sota. He attended local public schools and in high school 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n CHIEF JUSTICE BURGER xiii was president of the Student Council and editor of the school newspaper, and he lettered in football, hockey, swimming, and track. He then worked his way, selling insurance by day, through the University of Minnesota and the St. Paul College of Law, now William Mitchell, where he attended nights, receiving his law degree magna cum laude in 1931. Two years later, he married Elvera Stromberg. Harry Blackmun, his child- hood friend and future colleague on this Court, was best man. After graduating from law school, he soon joined an estab- lished firm in St. Paul, where he became a partner. From the beginning, Warren Burger demonstrated in both his pub- lic and his private life a deep commitment to just treatment of individuals of all races. In the 1940's, he served on St. Paul's first Council on Human Rights, which he helped organize to fight racial dis- crimination, and when Japanese Americans were forced to leave their West Coast homes following the bombing of Pearl Harbor, he led a committee to help resettle those who had been displaced. He became aligned politically with Harold Stassen, manag- ing Stassen's first gubernatorial campaign in 1938, and his campaign for the Republican presidential nomination in 1948. While serving as Stassen's floor manager at the Republi- can National Convention in 1952, Burger pledged the Minne- sota delegation's support to Dwight Eisenhower, ensuring Eisenhower's nomination on the first ballot. His energy, abilities, and political acumen did not go unno- ticed. In 1953, he left Minnesota for Washington, D. C., ac- cepting President Eisenhower's appointment to serve as an Assistant Attorney General in charge of the Civil Division under Attorney General Brownell. His distinguished serv- ice in that capacity included several appearances before this Court. In 1956, President Eisenhower persuaded the Assistant Attorney General to forgo his return to private practice in St. Paul and instead to accept the President's nomination to 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n xiv CHIEF JUSTICE BURGER a seat on the United States Court of Appeals for the District of Columbia. He would serve with distinction on that influ- ential court for 13 years, developing a national reputation. Judge Burger's express desire to restore greater balance to the criminal justice system caught the attention of the newly inaugurated Richard Nixon. Impressed as well with Judge Burger's reputation as an outstanding jurist, Presi- dent Nixon nominated him to replace the retiring Earl Warren. Less than 5 weeks later, on June 23rd, 1969, Warren Burger was sworn in as this Nation's fifteenth Chief Justice. He served in that role for 17 years, longer than any other Chief Justice in the 20th Century. Confounding the expectations of those who hoped, or feared, that he would immediately set about reversing the decisions of the Warren era, the new Chief Justice was not an advocate for radical change. His experiences as a prac- titioner, as Government official, as Federal judge, had in- stilled in him a skepticism towards rigid doctrinal views of any stripe. His jurisprudence was complex and nuanced, but consist- ently reflective of certain core values, a reverence for the constitutional framework envisioned by the Founders, a deep appreciation of the personal and structural importance of our fundamental liberties, including those of the people as an or- ganized community, an understanding that the law must take account of realities beyond the courtroom, and a steadfast dedication to improving the administration of justice. In addition to his contributions as a jurist, Warren Burg- er's tenure was remarkable for his intensive efforts to im- prove the quality of both the bench and the bar. He imple- mented the most significant administrative overhaul of this Court since the Taft era, directing substantial investments in systems and modernization and at the same time devoting significant resources to the preservation and commemoration of the Court's traditions and history, making the Court a more accessible and welcoming place for the thousands who visit its halls. 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n CHIEF JUSTICE BURGER xv As Chief Justice of the United States, Burger approached the task of judicial administration with an appreciation that how justice is dispensed at every level directly affects the lives of the people. In 1971, for example, he helped found the National Center for State Courts in Williamsburg, Virginia, which provides information, education, and management services for Court leaders. Following a prison riot at Attica, New York, he was instru- mental in establishing the National Institute of Corrections, an agency charged with providing specialized correction service to State and local corrections agencies, and as Chair- man of the Board of the Federal Judicial Center, The Chief Justice guided the newly established center's growth into a full fledged agency for research and training for the Fed- eral courts. The Chief Justice also visited and studied legal institutions in various parts of the globe, and participated actively in symposia with scholars and statesmen from around the world. Drawing largely on the British experience, he promoted the establishment and growth of the American Inns of Court program, which today has hundreds of local chapters throughout the 50 States and the District of Columbia, bring- ing novice attorneys together with more experienced attor- neys and local judges to help the former develop trial skills and to promote more generally a sense of ethics and fellow- ship within the profession. Burger's concern for the practical effect of legal rules played an important part in his jurisprudence. He was, for example, skeptical that the benefits of the exclusionary rule justified its cost to society. While the Court has retained the exclusionary rule, Chief Justice Burger played a key part in excepting from its reach classes of cases that do not per- suasively implicate the rule's deterrence rationale. Most noticeably, he delivered the opinion of the Court in Nix v. Williams, recognizing the inevitable discovery excep- tion. The basis for the exception was explicitly pragmatic. 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n xvi CHIEF JUSTICE BURGER If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, then the deterrence rationale has so little basis that the evidence should be received. The Chief Justice's reluctance to afford unlimited scope to abstract doctrine featured prominently in his landmark opin- ion for a unanimous Court in United States v. Nixon, uphold- ing the special prosecutor's subpoena of the President's tape-recorded conversations. Although The Chief Justice recognized that the President has a legitimate need for confidentiality in the performance of his executive duties, he rejected the contention that the President is entitled to an absolute privilege from disclosure. The Chief Justice observed that privileges against forced disclosure are rare exceptions to the demand for every man's evidence. They are not lightly created nor expansively con- strued, for they are in derogation of the search for truth. Though skeptical of judgemade rules, Chief Justice Burger observed strict fidelity to the dictates of the Constitution, particularly the structural limitations that inhere in the sep- aration of powers, which he believed critical to the stability of our system of governance. In 1983, he delivered the landmark opinion in INS v. Chadha, striking down on separation of powers grounds a one-House veto provision in the Immigration and Nationality Act, which permitted either House of Congress unilaterally to overrule immigration decisions delegated by law to the discretion of the Attorney General. Notwithstanding Congress' use of similar provisions in lit- erally hundreds of enactments, the Court held the one-House veto procedure to be violative of the constitutional require- ments for a valid legislative act, namely, bicameral approval and presentment to the President. The Chief Justice's opinion explained: The choices we dis- cern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n CHIEF JUSTICE BURGER xvii were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. "With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution." Toward the end of his tenure, Chief Justice Burger again wrote for the Court in Bowsher v. Synar, striking down pro- visions of the Gramm-Rudman-Hollings Act that required the President to make budget cuts specified by the Comptrol- ler General under certain emergency conditions. Concluding that the Comptroller General was answerable to Congress, The Chief Justice rejected the argument that he was unlikely, in fact, to act as an agent for the legislative branch. The separation of powers must be strictly enforced, he wrote, because as the Founders well understood, in the long term, structural protections against abuse of power are critical to preserving liberty. To Warren Burger, there was special significance in the first three words of the Constitution: `We, the People.' They were a concise, yet momentous declaration that for the first time in history, power was created in a Government from the bottom up, not from the top down. That Government was under the Constitution, therefore would not always be tidy, was all only natural. Democracy, as The Chief Justice understood it, is people, men and women with all their virtues and flaws, trying to work together to produce ordered liberty. The Chief Justice's abiding faith in the ordinary men and women of this Nation is reflected in his belief that along with the structural safeguards afforded by the separation of powers, the guarantees of the First Amendment are critical to the maintenance of ordered liberty. The link between structural integrity and free speech is manifest in his several opinions involving the right of the 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n xviii CHIEF JUSTICE BURGER people to hear, see, and communicate observations concern- ing criminal proceedings. The Chief Justice explained that people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. Warren Burger's appreciation of the value of individual liberties was reflected in many of his constitutional opinions. In Wisconsin v. Yoder, for example, where the Court upheld on free exercise grounds the right of Amish parents to ex- cept their offspring from uniform State schooling require- ments, he recognized as a constitutional imperative the prin- ciple that a way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different. In Wooley v. Maynard, he again championed the right not to conform, authorizing the Court's opinion affirming the right of Jehovah's Witnesses to refuse to display the motto, "Live Free or Die," on their New Hampshire license plates. He explained that where the State's interest is to dissemi- nate an ideology, no matter how acceptable to some, such interests cannot outweigh an individual's First Amendment right to avoid being the courier for such message. He recognized at the same time, however, that the claims of individual liberty do not invariably outweigh the right of the people as a community to foster and protect common val- ues and needs. Under the now-familiar standard for the Court articulated by The Chief Justice in Miller v. Califor- nia, whether speech is obscene and therefore unprotected is judged from the viewpoint of the average person applying contemporary community standards. And in Paris Adult Theater I v. Slaton, he upheld for the Court the State's authority to regulate the exhibition of obscene material in places of public accommodation, recog- nizing that the State's legitimate interest encompassed the interest of the public in the quality of life in the total com- munity environment, the tone of commerce in the great city centers, and possibly the public safety itself. 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n CHIEF JUSTICE BURGER xix In The Chief Justice's jurisprudence, the balance of individ- ual and community rights is sensitive, as exemplified by his opinions for the Court in cases involving claims of religious establishment. In upholding New York's tax exemption for property used for religious education or charitable purposes in Walz v. Tax Commission of New York, he acknowledged that the test is inescapably one of degree, and explained that it is an essential part of adjudication to draw distinc- tions, including fine ones, in the process of interpreting the Constitution. In the following year, in Lemon v. Kurtzman, The Chief Justice again wrote for the Court, this time striking down State programs providing aid to parochial schools that fos- tered an excessive degree of entanglement of church and State. Finally, Warren Burger remained true on the bench to his lifelong commitment to the equal treatment of individuals, irrespective of race or national origin. In one of his first major opinions as Chief Justice, he delivered the Court's unanimous opinion in Swann v. Charlotte-Mecklenburg Board of Education. Affirming the propriety of compre- hensive relief, including busing of students to remedy racial segregation in education, he was equally vigilant in guarding against less direct, but still invidious forms of discrimination. He wrote opinions for the Court adopting a disparate im- pact standard for Federal statutory claims of racial discrimi- nation in employment, condemning on equal protection grounds the provision of State aid to racially segregated pri- vate schools and sustaining the denial of Federal tax exemp- tions to private schools that practice racial discrimination. Nor were racial minorities the only beneficiaries of The Chief Justice's abiding belief in equal work. In his opinion in Reed v. Reed, the Court for the first time struck down on equal protection grounds a State statute that arbitrarily discriminated against women, and in Hishon v. King and Spalding, his opinion for the Court held that the Federal statutory prohibition of sex discrimination in employment applies to partnership decisions made by a law firm. 517bv$$$$v 01-28-99 08:37:53 PGT * frtbx n xx CHIEF JUSTICE BURGER It was because of his dedication to, indeed, reverence for the principles embodied in our Constitution that Warren Burger retired from the Supreme Court in 1986 to head the Commission on the Bicentennial of the Constitution. He served in that capacity as a tireless emissary of the Constitu- tion to the ordinary men and women, and particularly the children of this Nation. In that role, as in all of the varied contexts in which he toiled and emerged as a leader in the law, as private lawyer, Assistant Attorney General, appellate judge, and Chief Jus- tice of the United States, his dedication to liberty and equal- ity, his faith in the citizens of this land, and his commitment to maintaining the integrity of our constitutional structure, guided his steps and consequently illuminated the path for us all. Mr. Chief Justice, on behalf of the lawyers of this Na- tion and, in particular, of the Bar of this Court, I respectfully request that the resolutions presented to you in honor and celebration of the memory of Chief Justice Warren E. Burger be accepted by the Court, and that they, together with the chronicle of these proceedings, be ordered kept for all time in the records of this Court. The Chief Justice said: Thank you, Attorney General Reno, and thank you, Gen- eral Days. The Court thanks both of you for your presentation today in memory of our late colleague and friend, Chief Justice Burger. We ask that you convey to Chairman John Sexton and the members of the Committee on Resolutions, Chairman Charles A. Hobbs and the members of the Arrangements Committee, and Michael Luttig, Chairman of today's meet- ing of the Bar, our appreciation for these appropriate resolutions. 517bv$$$$v 01-28-99 08:37:54 PGT * frtbx n CHIEF JUSTICE BURGER xxi Your motion that these resolutions be made a part of the permanent records of the Court is granted. For 17 years, a longer tenure than all but three of his pred- ecessors, Warren Burger presided over this Court. During that period of time, as might be expected, he authored numerous important opinions for the Court on a variety of subjects. The Nixon tapes case, INS v. Chadha, Miller v. California, Milliken v. Bradley, Nebraska Press Association were but a few. The resolutions mentioned many others. He was particularly interested in the constitutional doc- trine of separation of powers, and in the speech and religion clauses of the First Amendment. He was a person of strong convictions, who was nonetheless able to work harmoniously with his colleagues. The English scientist and philosopher, Alfred North Whitehead said in one of his books, all the world over and at all times, there have been practical men absorbed in irreduc- ible and stubborn facts. All the world over, and at all times, there have been men of philosophic temperament who have been absorbed in the weaving of general principles. No one, of course, is wholly in one of these camps or the other, but I think one would have to say that Warren Burger was predominantly in the camp of the practical man, as you have suggested, General Days. He was concerned as to how the Court's decisions would be translated into law at the trial level and at the community. To that end, he was instrumental in the founding of the National Center for State Courts, as you have mentioned, General Reno, an organization devoted to providing admin- istrative and technical assistance to State court systems. He was instrumental in the founding of the Institute for Court Management. He pioneered the idea of the Inns of Court in the United States, where law students, faculty, practicing lawyers, and judges could dine and meet together in the pursuit of their common interests. He was firmly of the view that the English system on which these Inns were patterned did a better job of disciplin- 517bv$$$$v 01-28-99 08:37:54 PGT * frtbx n xxii CHIEF JUSTICE BURGER ing practicing lawyers than did the more formal procedures employed in this country. Here at the Court, Warren Burger made changes that materially improved our operation. Take, for example, his reconfiguration of the bench on which my colleagues and I are now sitting. We take for granted the shape of the bench, and after 25 years it is understandable, but before the advent of Warren Burger it was an absolutely straight bench, making it diffi- cult for colleagues on either end to question counsel, difficult for colleagues in the middle to hear questions from either end, and difficult for counsel to address their remarks to those towards the end of the bench. By simply moving the two wings of the bench slightly for- ward, all of these difficulties were corrected or alleviated, although others may have been brought about. It can also be said, I think, that he made the Court more centrist by bringing the left and right wings closer together. Chief Justice Burger also brought the Court from the days of a hot lead printing press to automation in the printing of its opinions. The hot lead press which we had when I be- came a member of the Court some 20 years ago was little different from the printing press the Court had when I was a law clerk in the early fifties and, indeed, little different from the kind of hot lead press on which we set type for our high school newspaper at the beginning of World War II. And during the June crunch, as we came to know it, you would have to wait 2 or 3 days between the time you sent an opinion, draft opinion to the printer, and the time you could get it back. This all changed under Chief Justice Burger's regime, and major steps toward the kind of automation we have today were taken. Warren Burger was a man of tremendous energy. Often, when a lawyer takes the bench, he becomes less involved than previously with the various concerns of the legal profes- sion, but this was not true of Warren Burger. As an appel- late judge, he helped to found the Appellate Judges Confer- 517bv$$$$v 01-28-99 08:37:54 PGT * frtbx n CHIEF JUSTICE BURGER xxiii ence at New York University, and he also played an important part in the drafting of the standards of criminal justice for the American Bar Association. When he retired as Chief Justice in 1986, he said that one of the reasons he did so was that he could not do justice to both the office of Chief Justice and his position as Chairman of the Committee on the Bicentennial of the Constitution. When asked why he had chosen his chairmanship over the Chief Justiceship, he replied that he thought the President would have no trouble finding someone to be Chief Justice- but he might have trouble finding someone to be Chairman of the Committee on the Bicentennial, and after his retire- ment, he was able to concentrate on the Bicentennial Com- mission and bring that tremendous energy to bear to make Americans better acquainted with their Constitution. He was on occasion pressed by scholars to devote a large part of the resources of the Committee to academic forums and treatises on constitutional law, but he declined to do so. He saw his job as bringing home to millions of Americans the significance of their Constitution, and he succeeded mag- nificently in doing so. Warren Burger and I were good friends from the first time I met him, when he informally swore me in as an Associate Justice of this Court in December 1971. I continue to miss him. I remember stopping in to see him only a few weeks before his death, and he was very proud of a just-published book he had written about famous Supreme Court cases entitled, It Is So Ordered. Here was a man, 88 years old, who had just finished writing a book. Warren Burger, the fifteenth Chief Justice of the United States, left a large mark on this Court. He also left a large mark on the legal profession as a whole, a profession in which he retained an abiding interest throughout his life. 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1994 edition. Cases reported before page 1101 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 1101 et seq. are those in which orders were entered. The opinion reported on page 1301 is that written in chambers by an individual Justice. Page A.; New Mexico Dept. of Human Services v. . . . . . . . . . . . . . . . . 1190 A. A. & M. Carting Service, Inc. v. Babylon . . . . . . . . . . . . . . . . . 1150 Aaron; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Aaron v. Public Utilities Comm'n of Cal. . . . . . . . . . . . . . . . . . . . 1185 Abbas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Abbey Medical, Inc.; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Abbott v. Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Abbott Ambulance; Bi-State Dev. Agcy., Mo.-Ill. Metro. Dist. v. . . 1156 ABC­TV; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132 Abdelmeged v. B­G Maintenance Management of Colo., Inc. . . . . 1145 Abdul Hakeem v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Abdullah v. Groose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Abeles v. Infotechnology, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Ables v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Abraham v. Adcock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Abrams v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207,1241 Abrams v. Urban Homeowners' Corp. of New Orleans . . . . . . . . . 1165 AC Rochester; Wynn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Adames v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Adams v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184 Adams v. U. S. District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Adcock; Abraham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Adherence Group, Inc.; Gerasolo v. . . . . . . . . . . . . . . . . . . . . . . . . 1209 Administrator, Hughes Non-Bargaining Retirement Plan; Hughes Salaried Retirees Action Committee v. . . . . . . . . . . . . . . . . . . . 1189 Agostini; Burkhart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1221 Aguilar v. New Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Aguilar v. Newton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145,1230 Aguirre v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1216 xxv 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xxvi TABLE OF CASES REPORTED Page Aikens v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116 Aitken; Amphitheater Public Schools v. . . . . . . . . . . . . . . . . . . . . 1208 Akech v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125,1230 Akere v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Alabama; Dobyne v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Alabama; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Alabama v. Poarch Band of Creek Indians . . . . . . . . . . . . . . . . . . 1133 Alabama; Poarch Band of Creek Indians v. . . . . . . . . . . . . . . . . . . 1133 Alabama v. Seeley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Alabama Comm'r of Revenue v. Owner-Operator Independent Drivers Assn., Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Alabama State Bar; Lyon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Alaska v. Babbitt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Alaska; Linton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Alaska; Totemoff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Alaska; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207 Alaska Federation of Natives v. United States . . . . . . . . . . . . . . . 1187 Albuquerque; Westland Development Co. v. . . . . . . . . . . . . . . . . . 1244 Alcones v. Office of Personnel Management . . . . . . . . . . . . . . . . . 1140 Aleali v. Merkle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Alexander v. Mississippi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Alexander v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174,1188 Alferos v. Office of Personnel Management . . . . . . . . . . . . . . . 1139,1251 All American Asphalt v. Hyles . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Allard v. Flamingo Hilton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Allen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165 Allen; Calhoun v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Allen v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Allen; Steeves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Allen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1130,1181,1200 Allen; Zankich v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Alligator Farms, Inc. v. Groner . . . . . . . . . . . . . . . . . . . . . . . . . . 1120 Allstate Ins. Co.; Parks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Allstate Ins. Co.; Quackenbush v. . . . . . . . . . . . . . . . . . . . . . . . . . 706 Allstate Ins. Co.; Roussos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Alsberg v. Robertson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Alsberg Brothers Boatworks v. Robertson . . . . . . . . . . . . . . . . . . 1168 Alton & Southern R. Co. v. Edwards . . . . . . . . . . . . . . . . . . . . . . 1221 Altstatt v. Oregon State Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129 Alvarez v. Office of Personnel Management . . . . . . . . . . . . . . . . . 1226 Alvarez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Alvarez-Figueroa v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1162 Al-Wahhab v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 American Civil Liberties Union Foundation; Jones v. . . . . . . . 1118,1186 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xxvii Page American Fork Investors; Echols v. . . . . . . . . . . . . . . . . . . . . . . . 1204 American General Finance, Inc.; Hanlin v. . . . . . . . . . . . . . . . . . . 1121 American Mfrs. Mut. Ins. Co.; Wodarski v. . . . . . . . . . . . . . . . . . . 1135 American National Can Co.; Tokhtameshev v. . . . . . . . . . . . . . . . 1151 Americanos v. Carter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 American Pioneer Life Ins. Co. v. Williamson . . . . . . . . . . . . . . . 1231 American Premier Underwriters, Inc. v. USX Corp. . . . . . . . . . . 1221 American S. S. Co. v. Cleveland Tankers, Inc. . . . . . . . . . . . . . . . 1220 American Telephone & Telegraph Co.; Saunders v. . . . . . . . . . . . 1150 Ames; Walker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Amey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Amos v. Esmor Mansfield, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Ampex Corp. v. Frymire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1182 Amphitheater Public Schools v. Aitken . . . . . . . . . . . . . . . . . . . . 1208 AmSouth Bancorp., N. A.; Miller v. . . . . . . . . . . . . . . . . . . . . . . . 1213 AMTRAK; Lebron v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Anderson v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Anderson v. Newberry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Anderson v. Sharma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1234 Anderson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151,1162 Andrews v. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Andrews v. Georgia State Bd. of Pardons and Paroles . . . . . . . . . 1142 Andrews v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Angelone; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Angelone; Snurkowski v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Angel Rivera v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Anheuser-Busch, Inc. v. Schmoke . . . . . . . . . . . . . . . . . . . . . . . . . 1206 Antonelli v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Antonelli v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Apa v. Sweeney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Apache Corp. v. Moore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1217 Appraisal Foundation; National Assn. of Review Appraisers & Mortgage Underwriters, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Archexpo Commerce & Industry Centre v. International Ambas- sador Programs, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Arevalo-Gamboa v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Argus Life Ins. Co.; Kee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Arias v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Arizona; Arizonans for Official English v. . . . . . . . . . . . . . . . . 1102,1242 Arizona; Barraza v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 Arizona v. Hook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Arizona; Salazar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Arizona; Walden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Arizonans for Official English v. Arizona . . . . . . . . . . . . . . . . 1102,1242 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xxviii TABLE OF CASES REPORTED Page Arkansas; Bowen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Arkansas; Caldwell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Arkansas; Nooner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Arkansas; Porter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Armstrong v. Commodity Futures Trading Comm'n . . . . . . . . . . 1245 Armstrong; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456 Aronson v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Arteaga v. U. S. Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . 1204 Artis v. Garraghty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Arvin-Thornton v. Philip Morris Products, Inc. . . . . . . . . . . . . . . 1151 Ashland Oil, Inc.; Ramey v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1109,1205 Ashley; Silverburg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Ashley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147,1250 Asrar v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Atherton v. Federal Deposit Ins. Corp. . . . . . . . . . . . . . . 1101,1133,1182 Atkinson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Atlantic Richfield Co. v. Beck . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Attorney General; Blackston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Attorney General v. Bossier Parish School Bd. . . . . . . . . . . . . 1154,1232 Attorney General; Morrison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Attorney General; Nicholas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Attorney General; Pic-A-State PA, Inc. v. . . . . . . . . . . . . . . . . . . 1246 Attorney General of Ala.; Bogan v. . . . . . . . . . . . . . . . . . . . . . . . . 1170 Attorney General of Colo.; Kailey v. . . . . . . . . . . . . . . . . . . . . . . . 1193 Attorney General of Colo.; Ross v. . . . . . . . . . . . . . . . . . . . . . . . . 1111 Attorney General of Colo.; Salazar v. . . . . . . . . . . . . . . . . . . . . . . 1110 Attorney General of Ind.; Americanos v. . . . . . . . . . . . . . . . . . . . 1222 Attorney General of Mich. v. Department of Justice . . . . . . . . . . . 1166 Attorney General of Minn.; Pourzandvakil v. . . . . . . . . . . . . . . . . 1204 Attorney General of Miss. v. Dupree . . . . . . . . . . . . . . . . . . . . . . 1241 Attorney General of Ohio; Dayton Visually Impaired Persons v. . 1135 Attorney General of Pa.; Broadwater v. . . . . . . . . . . . . . . . . . . . . 1137 Attorney General of R. I.; D'Amario v. . . . . . . . . . . . . . . . . . . . . . 1198 Auciello Iron Works, Inc. v. National Labor Relations Bd. . . . . . . 781 Augustin v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Ault; Stearns-Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Aultman Health Services Assn.; Schwartz v. . . . . . . . . . . . . . . . . 1132 Aultman Hospital; Schwartz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132 Auvil v. CBS "60 Minutes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Ayala-Allende v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Ayars v. New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113,1227 Ayers v. Fordice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 B. v. S. L. J. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118,1185 Babbitt; Alaska v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xxix Page Babbitt; Fort Sumter Tours, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . 1220 Babbitt; Pittston Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Babbitt v. Youpee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 Babcock & Wilcox Co.; Clements v. . . . . . . . . . . . . . . . . . . . . 1136,1240 Babylon; A. A. & M. Carting Service, Inc. v. . . . . . . . . . . . . . . . . 1150 Babylon; USA Recycling, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1135 Bachstein, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130 Baijnath v. Chan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 Bailey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1234,1239 Baird v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Baker v. Hadley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1233 Baker v. Internal Revenue Service . . . . . . . . . . . . . . . . . . . . . . . . 1192 Baker v. Maryland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Bakker v. Federal Deposit Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . 1233 Bal v. New York City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Balandra Schiffahrts-Gesellschaft MBH & Co., KG v. Costa . . . . . 1245 Baldassaro v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207 Balderas Garcia v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1127 Baldwin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1231 Balele v. Klauser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Balisok; Edwards v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Ballard, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118 Baltimore; Neufeld v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Bandura v. Immigration and Naturalization Service . . . . . . . . . . . 1105 Bankers Trust Co. v. Procter & Gamble Co. . . . . . . . . . . . . . . . . . 1205 Bank of America; Strowski v. . . . . . . . . . . . . . . . . . . . . . . . . . 1106,1204 Bank of America National Trust and Savings Assn. v. FDIC . . . . 1103 Bankruptcy Judge, U. S. District Court; Youngs v. . . . . . . . . . 1184,1247 Banks v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142,1216 Banks v. San Diego County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Banks v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Baptiste v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Barbee v. Pennsylvania Dept. of Corrections . . . . . . . . . . . . . . . . 1226 Barbee v. State Farm Automobile Ins. Co. . . . . . . . . . . . . . . . . . . 1160 Barbour; Platzer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Barbour v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Barcher v. Shipman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Bard, Inc.; Talbott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1230 Barkett v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Barnett; Darden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Barnett v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Barnett Bank of Marion County, N. A. v. Nelson . . . . . . . . . . . . . 25 Barno v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Barraza v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xxx TABLE OF CASES REPORTED Page Barron v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200,1250 Bartlett; Bragg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Bartley v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Bass v. National Super Markets, Inc. . . . . . . . . . . . . . . . . . . . . . . 1208 Bass v. Nevada Bd. of Medical Examiners . . . . . . . . . . . . . . . . . . 1234 Bass v. Sarasota County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Bastine, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1206 Batista v. Buffalo Police Dept. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Baton Rouge Marine Contractors, Inc.; Robillard v. . . . . . . . . . . 1135 Battle v. Bowersox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Batts v. Tow-Motor Forklift Co. . . . . . . . . . . . . . . . . . . . . . . . . . . 1221 Baxley; Roussos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Baxter v. Los Angeles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 B & D Mechanical Contractors, Inc.; St. Paul Mercury Ins. Co. v. 1167 Beach, Cadigan & Martin; Karageorgos v. . . . . . . . . . . . . . . . . . . 1143 Beard; Rauser v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Beck; Atlantic Richfield Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Becker v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Beets v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157,1252 Bell v. Brookshire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Bell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Bell Communications Research; Sever v. . . . . . . . . . . . . . . . . . . . 1223 Bellcore; Sever v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Bellrichard v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Bell, Rosenberg & Hughes; Willis v. . . . . . . . . . . . . . . . . . . . . . . . 1193 BellSouth Telecommunications, Inc. v. FCC . . . . . . . . . . . . . . 1129,1240 Belyeu v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Benavidez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Bend; Springer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Bennett v. Plenert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102 Bennett v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109,1205 Bennett v. United States . . . . . . . . . . . . . . . . . . . . 1145,1162,1191,1238 Bennis v. Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Benoit v. Louisiana Public Service Comm'n . . . . . . . . . . . . . . . . . 1117 Benson; Steeves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Benton, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 Berg, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 Berger v. Morgan Hill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Berget v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Bergmann v. McCaughtry . . . . . . . . . . . . . . . . . . . . 1126,1160,1205,1240 Bergmann v. McCollough . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141,1230 Berkeley v. Home Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Berks County v. Murtagh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1104 Bernard v. Office of Queens County District Attorney . . . . . . . . . 1143 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xxxi Page Bernardez v. Office of Personnel Management . . . . . . . . . . . . . . . 1142 Bertasavage, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Bertoli v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Bethea, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Bevill v. Mississippi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 B­G Maintenance Management of Colo., Inc.; Abdelmeged v. . . . . 1145 Biederman, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207 Bieri v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1233 Bies v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Biggs v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Bilandic; Palmisano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Bilby-Knight; Mitchell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Billberry v. Electrical Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Billups v. Schotten . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Bingham; Steinberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134,1240 Bingham; Zolt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134,1230 Bio-Recovery, Inc., In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 Bishop v. Rickles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Bi-State Dev. Agcy., Mo.-Ill. Metro. Dist. v. Abbott Ambulance . . 1156 Black v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1154 Blackfeet Tribe of Blackfeet Reservation; Jessup v. . . . . . . . . . . . 1129 Blackman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Blackston v. Reno . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Blair v. Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Blalack; Hennessey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Blanch Co.; Cherokee Ins. Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Blassingame v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Blessing v. Freestone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 Bloomfield, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1217 Blount v. Securities and Exchange Comm'n . . . . . . . . . . . . . . . . . 1119 Bludworth; Hoke v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1221 Blue Springs v. Kincade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Blytheville School Dist. No. 5 v. Harvell . . . . . . . . . . . . . . . . . . . . 1233 BMW of North America, Inc. v. Gore . . . . . . . . . . . . . . . . . . . . . . 559 Board of County Comm'rs of Bryan County v. Brown . . . . . . . . . 1154 Board of Managers of Revere Condominium; Jaffer v. . . . . . . . . . 1171 Board of Patent Appeals and Interferences; Roselin v. . . . . . . . . 1116 Board of Regulatory Comm'rs of N. J.; Jersey Carting, Inc. v. . . . 1135 Board to Determine Fitness of Bar Applicants, Supreme Court of Ga.; Newton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 "Bob" v. "Mary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Bogan v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Boggs v. Bowron . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Bold v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xxxii TABLE OF CASES REPORTED Page Bollman v. Emerson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Bolt v. Singleton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Bolt v. State Farm Fire & Casualty Co. . . . . . . . . . . . . . . . . . . . . 1120 Bondad v. Office of Personnel Management . . . . . . . . . . . . . . 1139,1252 Bonner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Booker v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Borawick v. Shay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Borough. See name of borough. Bossier Parish School Bd.; Price v. . . . . . . . . . . . . . . . . . . . . . . . . 1232 Bossier Parish School Bd.; Reno v. . . . . . . . . . . . . . . . . . . . . . 1154,1232 Botello v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Bounds v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Bourne v. Walt Disney Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1240 Bourne Co. v. Walt Disney Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1240 Bowen v. Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Bowen v. Gundy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Bower v. Bower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Bowersox; Battle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Bowersox; Harvey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Bowersox; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Bowersox; Nave v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Bowersox; Oxford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124,1252 Bowersox; Tyler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Bowersox v. Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 Bowersox; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129 Bowles v. Minnesota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Bowron; Boggs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Boyce v. Greenway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Boyd v. Christian Methodist Episcopal Church . . . . . . . . . . . . . . 1248 Boyd; Hunter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Boyd v. Mississippi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Boyd v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Boyd; Sellers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Bracey v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Bradford v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174 Bradley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Bragg v. Bartlett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Brake v. District Court of Appeal of Fla., Third Dist. . . . . . . . . . 1151 Bramhall, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1217 Branch v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Brasseur v. Empire Travel Service, Inc. . . . . . . . . . . . . . . . . . . . . 1234 Bratton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174 Braun v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Bravo v. National Mediation Bd. . . . . . . . . . . . . . . . . . . . . . . . . . 1104 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xxxiii Page Brazil v. Dalton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Breath v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Brennan; Owens-Corning Fiberglas Corp. v. . . . . . . . . . . . . . . . . 1243 Brett; Thornbrugh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Brewer v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Brewer v. Ward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1164 Briggs v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Brinkley, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117,1231 British Airways; Shafii v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Brito v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Britt v. Wells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Britton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Broach v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Broadwater v. Corbett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Brobston v. Insulation Corp. of America . . . . . . . . . . . . . . . . . . . 1209 Brockamp; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 Broida v. Horowitz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 Broida v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Brooks v. Wichita Falls State Hospital . . . . . . . . . . . . . . . . . . . . . 1214 Brookshire; Bell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Brotherhood. For labor union, see name of trade. Broumas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Brown, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185 Brown v. Angelone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Brown; Aronson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Brown; Board of County Comm'rs of Bryan County v. . . . . . . . . . 1154 Brown v. Campbell County Bd. of Ed. . . . . . . . . . . . . . . . . . . . . . 1222 Brown; Furrer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Brown; Guzman Zayas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124,1205 Brown; Jardine v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185 Brown; LeFevre v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Brown v. Paskvan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Brown v. Plywood Panels, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Brown; Stearns-Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Brown; Sudranski v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110,1205 Brown v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1113,1114,1174 Brown v. U. S. Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Brown; Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Brown Group, Inc.; Food & Commercial Workers v. . . . . . . . . . . . 544 Brown Shoe Co.; Food & Commercial Workers v. . . . . . . . . . . . . . 544 Bruckner, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207 Bruellisauer v. Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Brunner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Brunston v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xxxiv TABLE OF CASES REPORTED Page Bryant v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111,1113 Bryson v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Buc-Hanan v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Buchanan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Buffalo Police Dept.; Batista v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Buividas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Bullock v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Bunnell; Ramos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Burke v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Burkhart v. Agostini . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1221 Burks v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Burley v. McDonnell Douglas Helicopter Co. . . . . . . . . . . . . . 1143,1216 Burnette v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Burr v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Burrell; Graves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Burress v. Unitarian-Universalist Society of Sacramento, Inc. . . . 1169 Burt v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Bush v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 Bush v. Vera . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952 Butler v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Butterfly v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Buyea v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Bynum v. State Farm Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Byrd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Caballero Ybarra v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1174 Cabiles v. Office of Personnel Management . . . . . . . . . . . . . . . . . . 1139 Cafe 207, Inc. v. St. Johns County . . . . . . . . . . . . . . . . . . . . . . . . 1156 Cahill v. Department of Labor . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Cain; Cupit v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Cain; Derryberry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Cain; Stephens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143,1205 Cain; Taylor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Cairnes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Calderon v. California First Amendment Coalition . . . . . . . . . . . . 1182 Calderon; Hendricks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Calderon; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1183 Caldwell v. Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Calhoun v. Allen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Calhoun v. Huskisson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1182 Caliendo v. Rodriguez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1231 California; Banks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142,1216 California; Barno v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 California; Buc-Hanan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 California; Chamberlin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xxxv Page California; Cortez Escamilla v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 California; Dawson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 California; Di Jorio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 California; Fauber v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 California v. Federal Communications Comm'n . . . . . . . . . . . . . . 1216 California; Free v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 California; Hawkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 California; Helms v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 California; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 California; Lang v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 California; Lowe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 California; Mitchell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 California; Patin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 California; Patterson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 California; Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 California; Siqueros v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 California; Stanley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208 California; Sultan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 California; Treadway v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 California; Trippet v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 California; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 California Div. of Labor Stds. Enforcement v. Dillingham Constr. 1133 California First Amendment Coalition; Calderon v. . . . . . . . . . . . 1182 California State Univ. at Los Angeles; Verdugo v. . . . . . . . . . . . . 1151 California Workers' Compensation Appeals Bd.; Debbs v. . . . . . . 1123 Califorrniaa v. Clinton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Calisaan v. Office of Personnel Management . . . . . . . . . . . . . . . . . 1139 Calles; Marian v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Calvert, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185 Calvo v. U. S. Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Cambridge Tankers, Inc.; De Los Santos v. . . . . . . . . . . . . . . . . . 1209 Camilo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Camp v. Gregory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Camp; Gregory v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Camp v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1162 Campbell; Gee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Campbell v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Campbell v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140,1209 Campbell v. United States . . . . . . . . . . . . . . . . . . . 1115,1147,1161,1228 Campbell County Bd. of Ed.; Brown v. . . . . . . . . . . . . . . . . . . . . . 1222 Campisi v. Maffeo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Cannon; McQueen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Cannon; Nelson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Cannon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xxxvi TABLE OF CASES REPORTED Page Cantrell v. Moore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Capers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Capistrano Unified School Dist.; Kletzelman v. . . . . . . . . . . . . . . . 1191 Cargill, Inc., In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Carlisle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 Carlisle Area School Dist.; Scott P. v. . . . . . . . . . . . . . . . . . . . . . . 1135 Carlson v. ICI Americas Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Carnahan; Fields v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Carpio v. Office of Personnel Management . . . . . . . . . . . . . . . . . . 1139 Carr v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Carrazana v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Carson v. Fauver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Carson v. Waterfront Comm'n of N. Y. Harbor . . . . . . . . . . . . . . . 1210 Carter; Americanos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Carter v. Helmsley-Spear, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Carter v. Montana Dept. of Transportation . . . . . . . . . . . . . . . . . 1188 Carter v. Mrozowski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135 Carter v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Carter v. Runyon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Carter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184 Caruso v. Kelly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Carvajal v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Casares v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Casarotto; Doctor's Associates, Inc. v. . . . . . . . . . . . . . . . . . . . . . 681 Casas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Casella v. Equifax Credit Information Services . . . . . . . . . . . . . . 1150 Casey; Fred Meyer, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Caspari; Craig v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Cassity v. Kentucky Transportation Cabinet . . . . . . . . . . . . . . . . 1209 Castner v. Whalen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Castorena v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Castro; CSX Transportation, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . 1210 Castro-Vega v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Catalfo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Catalina Enterprises, Inc. Pension Trust v. Hartford Fire Ins. Co. 1105 Catanio v. Myers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Caterpillar Inc. v. Lewis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Cathedral City; Hoesterey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185 Caton v. Clarke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Cavanaugh v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Cawley; Sharp v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Cayanan v. Office of Personnel Management . . . . . . . . . . . . . . . . 1139 Cayton, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207 CBS "60 Minutes"; Auvil v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xxxvii Page C & B Trucking v. Kentucky Transportation Cabinet . . . . . . . . . 1209 Celestial Church of Christ, Inc. v. Chicago . . . . . . . . . . . . . . . . . . 1137 Center for Humanities, Inc.; Gasperini v. . . . . . . . . . . . . . . . . . . . 1102 Center for Independence of Disabled; Dymits v. . . . . . . . . . . . . . . 1224 CenTra, Inc. v. Chandler Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . 1191 Central Cartage v. Central States, S. E. & S. W. Areas Pens. Fd. 1134 Central Ohio Joint Vocational School Dist.; J. A. Croson Co. v. . . . 1155 Central States, S. E. & S. W. Areas Health and Welfare Fund v. Pathology Laboratories of Ark. . . . . . . . . . . . . . . . . . . . . . . . . . 1233 Central States, S. E. & S. W. Areas Pens. Fd.; Central Cartage v. 1134 Central States, S. E. & S. W. Areas Pens. Fd.; Midwest Motor Express v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Central States, S. E. & S. W. Areas Pens. Fd. v. Sherwin-Williams 1190 Central Synagogue; Posner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Century Mortgage Co.; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Chamberlin v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Chambers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Champion; Dale v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Chan; Baijnath v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 Chandler Ins. Co.; CenTra, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . 1191 Chapa v. Jim Wells County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Chaplin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1243 Chara v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Chase Manhattan Bank, N. A.; Harris v. . . . . . . . . . . . . . . . . . . . . 1243 Chater; Gordon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Chater; Lawson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106,1204 Chater; Mangrum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Chater; Roberts v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Chavez v. Housing Authority of El Paso . . . . . . . . . . . . . . . . . . . . 1188 Chavez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116 Chavez v. University of Houston . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Chavez; University of Houston v. . . . . . . . . . . . . . . . . . . . . . . . . . 1184 Chemetron Corp.; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Chemstar, Inc.; Liberty Mut. Ins. Co. v. . . . . . . . . . . . . . . . . . . . . 1219 Cheng v. Metropolitan Life Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . 1248 Cherokee Ins. Co. v. E. W. Blanch Co. . . . . . . . . . . . . . . . . . . . . . 1156 Chevron U. S. A. Inc.; Hurinenko v. . . . . . . . . . . . . . . . . . . . . . . . 1240 Chevron U. S. A. Inc.; United States ex rel. Fine v. . . . . . . . . . . . 1233 Chicago; Celestial Church of Christ, Inc. v. . . . . . . . . . . . . . . . . . 1137 Chicago Bd. of Ed.; Pittman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1243 Chicago Transit Authority; Radic v. . . . . . . . . . . . . . . . . . . . . . . . 1247 Chick v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Chief Judge, Circuit Court of Fla., Leon County; Pearson v. . . . . 1237 Chief Judge, U. S. District Court; Reliford v. . . . . . . . . . . . . . . . . 1112 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xxxviii TABLE OF CASES REPORTED Page Chief Justice, Supreme Court of Ill.; Palmisano v. . . . . . . . . . . . . 1223 Chief Justice, Supreme Court of Ohio; Scott v. . . . . . . . . . . . . . . . 1226 Chief of National Guard Bureau; Tracy v. . . . . . . . . . . . . . . . . . . 1214 Childers; Simpson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Chiles v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Chilli v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Choucair; McGeshick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Christian Methodist Episcopal Church; Boyd v. . . . . . . . . . . . . . . 1248 Christopher v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Christy v. Cooper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Chrost; Gucikova v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Chrysler Corp.; Kearns v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1230 Church of Jesus Christ of Latter-day Saints; Igbo v. . . . . . . . . . . 1194 Ciapponi v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Cincinnati; Cook v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120 Cinergi Productions, Inc.; Fishburne v. . . . . . . . . . . . . . . . . . . . . 1134 Circuit Court of Wis., Marathon County; Jacobs v. . . . . . . . . . . . . 1251 Cisneros; Cost Control Marketing & Sales Management of Va. v. 1187 Citibank, N. A.; Lamb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Citibank (S. D.), N. A.; Richardson v. . . . . . . . . . . . . . . . . . . . . . . 1244 Citibank (S. D.), N. A. v. Sherman . . . . . . . . . . . . . . . . . . . . . . . . 1241 Citibank (S. D.), N. A.; Smiley v. . . . . . . . . . . . . . . . . . . . 735,1118,1154 City. See name of city. Claassen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Clapp, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Clark v. Clarkstown Central School Dist. . . . . . . . . . . . . . . . . . . . 1155 Clark v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Clark v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 Clark Distributing Co.; Eades v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Clarke; Caton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Clarkstown Central School Dist.; Clark v. . . . . . . . . . . . . . . . . . . 1155 Class of Gutierrez v. Santa Ana Unified School Dist. . . . . . . . . . . 1168 Claudio v. Snyder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Claypool v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Clayton County Comm'n; King v. . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Clement v. Florida Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Clements v. Babcock & Wilcox Co. . . . . . . . . . . . . . . . . . . . . . 1136,1240 Clements v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Cleveland Tankers, Inc.; American S. S. Co. v. . . . . . . . . . . . . . . . 1220 Clifford v. Glickman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132 Clifton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132 Clinard, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1217 Clinton; Califorrniaa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Clinton v. Middlesex Mut. Assurance Co. . . . . . . . . . . . . . . . . . . . 1104 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xxxix Page Cluck v. Osherow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Cobb; Taylor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Coeur d'Alene Tribe of Idaho v. Idaho . . . . . . . . . . . . . . . . . . . . . 1133 Coeur d'Alene Tribe of Idaho; Idaho v. . . . . . . . . . . . . . . . . . . . . . 1132 Coffin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Colbert v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Cole v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Coleman v. Hofbauer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Coleman v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Coleman v. New York Comm'n of Correction . . . . . . . . . . . . . . . . 1160 Coleman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1162 Coley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Collado v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Collins; James v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184 Collins v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Collins; Worthey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Colon v. Florida Comm'n on Ethics . . . . . . . . . . . . . . . . . . . . . . . 1242 Colonial Beach; Melka Marine, Inc. v. . . . . . . . . . . . . . . . . . . . . . . 1245 Colonial Beach; Mitrano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 Colorado; Bruellisauer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Colorado; Hutton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Colorado; McWilliams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Colorado Republican Federal Campaign Committee v. FEC . . . . 1117 Columbia County Redevelopment Authority; Noble v. . . . . . . . . . 1119 Columbia County Sheriff's Dept.; Hughey v. . . . . . . . . . . . . . . . . 1160 Columbia Natural Resources, Inc.; Tatum v. . . . . . . . . . . . . . . . . . 1163 Colvard v. Fulton-DeKalb Hospital Authority . . . . . . . . . . . . . . . 1234 Combustion Engineering, Inc. v. Johansen . . . . . . . . . . . . . . . . . . 1217 Commissioner; Cramer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Commissioner v. Hubert's Estate . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Commissioner; Hughes & Luce v. . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Commissioner; Kurnik v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Commissioner; Lane v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Commissioner; Levien v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 Commissioner; Marcinek v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Commissioner; McNeel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Commissioner; Nordvik v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Commissioner; Norwest Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Commissioner; Okolie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Commissioner; Philip Morris Inc. v. . . . . . . . . . . . . . . . . . . . . . . . 1220 Commissioner; Pressley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Commissioner; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 Commissioner; Webb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Commissioner of Internal Revenue. See Commissioner. 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xl TABLE OF CASES REPORTED Page Commissioner of Patents and Trademarks; Maresca v. . . . . . . . . . 1115 Commodity Futures Trading Comm'n; Armstrong v. . . . . . . . . . . 1245 Commodity Futures Trading Comm'n; Dunn v. . . . . . . . . . . . . . . 1219 Commonwealth. See name of Commonwealth. Comm-Tract Corp.; Tamburello v. . . . . . . . . . . . . . . . . . . . . . . . . 1222 Comptroller of Currency; First National Bank & Trust, Wibaux v. 1233 Concha; London v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1183 Cong Pham v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 Conley v. Eugene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191 Conley; Rashi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Connecticut; Cooper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130,1214 Connecticut; Hickam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1221 Connick, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Connor v. Flynn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Connors; Petitte Brothers Mining Co. v. . . . . . . . . . . . . . . . . . . . . 1189 Consolidated Coin Caterers Corp.; O'Connor v. . . . . . . . . . . . . . . 308 Consolidated Rail Corp.; Idemudia v. . . . . . . . . . . . . . . . . . . . . . . 1172 Consolidation Coal Co.; Newman v. . . . . . . . . . . . . . . . . . . . . . . . 1128 Construction Workers v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Conti v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 ContiCommodity Services, Inc.; Ragan v. . . . . . . . . . . . . . . . . . . . 1104 Continental Ins.; Tam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Continental Trend Resources, Inc.; OXY USA Inc. v. . . . . . . . . . 1216 Contreras v. Stainer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Cook v. Cincinnati . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120 Cook v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Cooper; Christy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Cooper v. Connecticut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130,1214 Cooper v. Groose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Cooper; Hazen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Cooper v. Malone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Cooper v. Massachusetts Comm'r of Revenue . . . . . . . . . . . . . . . . 1221 Cooper; Neal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Cooper v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 Cooper v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Copeland v. MBNA America Bank, N. A. . . . . . . . . . . . . . . . . . . . 1243 Corbett; Broadwater v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Corces v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Corcoran v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Cordova, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 Coronel v. Office of Personnel Management . . . . . . . . . . . . . . 1140,1252 Corpuz v. Office of Personnel Management . . . . . . . . . . . . . . . . . . 1139 Correa v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Correa Gonzalez; Hospital San Francisco, Inc. v. . . . . . . . . . . . . . 1136 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xli Page Corrections Commissioner. See name of commissioner. Cortez Escamilla v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Corti v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Cosmopolitan, Inc.; Sparky's Waterfront Saloon, Inc. v. . . . . . . . . 1189 Costa; Balandra Schiffahrts-Gesellschaft MBH & Co., KG v. . . . . 1245 Cost Control Marketing & Sales Management of Va. v. Cisneros 1187 Costello; Nunez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Cotner v. Nichols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Cotner v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Coto v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Cotton v. Nagle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 County. See name of county. Coupar v. Turnbo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Court of Appeals. See U. S. Court of Appeals. Court of Appeals of Mich.; Kennedy v. . . . . . . . . . . . . . . . . . . . . . 1160 Court of Civil Appeals of Ala.; Knight v. . . . . . . . . . . . . . . . . . . . 1151 Couse v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Covillion v. New Hampshire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Cox v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1162 Crabtree v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161,1240 Craig, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Craig v. Caspari . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Craig v. Montana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Cramer v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Crane Vessel Titan 5 v. Entron, Ltd. . . . . . . . . . . . . . . . . . . . . . . 1204 Crawford; Prieto v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Crawford v. Roane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Crawley v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 C. R. Bard, Inc.; Talbott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1230 Crehan v. DeBoer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Crispin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Cristino Rivera Mining Co.; Simpson v. . . . . . . . . . . . . . . . . . 1109,1163 Crocker; Union Security Life Ins. Co. v. . . . . . . . . . . . . . . . . . . . . 1230 Crompton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Crooms v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Croson Co. v. Central Ohio Joint Vocational School Dist. . . . . . . . 1155 Crowder, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207 Crowe v. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Crowe; Strickland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Crow Tribe of Indians v. Repsis . . . . . . . . . . . . . . . . . . . . . . . . . . 1221 Csorba v. ITT Electro-Optical Products Division . . . . . . . . . . 1160,1252 CSX Transportation, Inc. v. Castro . . . . . . . . . . . . . . . . . . . . . . . 1210 Cudal v. Office of Personnel Management . . . . . . . . . . . . . . . . . . . 1211 Cullum v. Hawk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xlii TABLE OF CASES REPORTED Page Cully v. St. Augustine Manor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Culver City; Young v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Cumming; Haney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Cummings; Sledge v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Cupit v. Cain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Curiale v. Sedwick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Curley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Current v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Curry v. E-Systems, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Curtis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Custodio v. Office of Personnel Management . . . . . . . . . . . . . . . . 1140 Cytron; Delbruegge v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117 Daas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Dade County Auto Tag Office; Gowin v. . . . . . . . . . . . . . . . . . . . . 1191 Daguinotnot v. Office of Personnel Management . . . . . . . . . . . 1138,1251 Dale v. Champion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Dale v. Superior Court of Cal., San Luis Obispo County . . . . . . . 1224 Daley v. Rambo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 D'Almeida; Stork Brabant B. V. v. . . . . . . . . . . . . . . . . . . . . . . . . 1168 Dalton; Brazil v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 D'Amario v. Pine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 D'Ambrosio v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Damer; Pepper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 Dameron, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184 Danao v. Office of Personnel Management . . . . . . . . . . . . . . . . . . 1139 Danger v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Danos v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1162 Darden v. Barnett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Darden v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Dart v. Dart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Datagate, Inc.; Hewlett-Packard Co. v. . . . . . . . . . . . . . . . . . . . . . 1115 Davenport v. Meloy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 David v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Davis; Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Davis; McClaran v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Davis v. Mississippi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Davis v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Davis v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Davis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1111,1210,1227 Dawson v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Day, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 Dayton Area Visually Impaired Persons, Inc. v. Montgomery . . . 1135 DeBarr v. Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Debbs v. California Workers' Compensation Appeals Bd. . . . . . . . 1123 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xliii Page DeBoer; Crehan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 De Buono v. NYSA­ILA Medical and Clinical Services Fund . . . 1232 Dedes v. Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Deeble v. Dyslin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 De Galan; Ram v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 Degen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 820 De Guzman v. Office of Personnel Management . . . . . . . . . . . . . . 1211 De Jesus v. Office of Personnel Management . . . . . . . . . . . . . . . . 1138 Dela Rea v. Office of Personnel Management . . . . . . . . . . . . . . . . 1140 Delaware; Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Delbridge v. New Jersey Division of Youth and Family Services 1146 Delbruegge v. Cytron . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117 DeLeon v. San Antonio Independent School Dist. . . . . . . . . . . . . 1108 DeLeon-Rodriguez v. United States . . . . . . . . . . . . . . . . . . . . . . . 1115 Delgado v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Dellinger; Salzer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Deloatch v. Hughes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120,1204 Delos Reyes v. Office of Personnel Management . . . . . . . . . . . . . . 1141 De Los Santos v. Cambridge Tankers, Inc. . . . . . . . . . . . . . . . . . . 1209 Denvers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Department of Air Force; Diaz v. . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Department of Air Force; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Department of Alcoholic Beverage Control; Moose Lodge #259 v. 1221 Department of Commerce; Francis v. . . . . . . . . . . . . . . . . . . . . . . 1224 Department of Commerce v. New York City . . . . . . . . . . . . . . . . 1 Department of Defense; Trivedi v. . . . . . . . . . . . . . . . . . . . . . . . . 1110 Department of Health and Human Services; Ortiz v. . . . . . . . . . . 1136 Department of Justice; Kelley v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Department of Labor; Cahill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Department of Veterans Affairs; Marsh v. . . . . . . . . . . . . . . . . . . 1226 Depew v. Gummo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Depperman v. Health Care Employees . . . . . . . . . . . . . . . . . . . . . 1213 DeRewal v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Derryberry v. Cain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Desiderio; Rogers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1164 DeYoung v. Kansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 DeYoung v. Lorentz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 D. F.; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1231 Dias, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 Diaz v. Department of Air Force . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Diaz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Dieguez-Alvarez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1138 Digby v. Followill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Di Jorio v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xliv TABLE OF CASES REPORTED Page Dilbert v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Dilley; Yeoman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Dillingham Constr., N. A.; Cal. Div. of Labor Stds. Enf. v. . . . . . . 1133 Dilworth v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Dime Savings Bank of N. Y.; Glavey v. . . . . . . . . . . . . . . . . . . . . . 1221 Dingle v. Victory Savings Bank . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Dinh Tran v. Dinh Truong Tran . . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Dinh Tran; Dinh Truong Tran v. . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Dinh Truong Tran v. Tho Dinh Tran . . . . . . . . . . . . . . . . . . . . . . 1134 Dinh Truong Tran; Tho Dinh Tran v. . . . . . . . . . . . . . . . . . . . . . . 1133 Director, OWCP; Ingalls Shipbuilding, Inc. v. . . . . . . . . . . . . . 1186,1243 Director of penal or correctional institution. See name or title of director. Distajo v. Doctor's Associates, Inc. . . . . . . . . . . . . . . . . . . . . . . . . 1120 District Court. See U. S. District Court. District Court of Appeal of Fla., First Dist.; Kleinschmidt v. . . . . 1226 District Court of Appeal of Fla., Third Dist.; Brake v. . . . . . . . . . 1151 District Judge. See U. S. District Judge. District of Columbia; Ifill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Dixon; Jeter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Dixon v. Maass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Dixon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Dobyne v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Doctor's Associates, Inc. v. Casarotto . . . . . . . . . . . . . . . . . . . . . . 681 Doctor's Associates, Inc.; Distajo v. . . . . . . . . . . . . . . . . . . . . . . . 1120 Dodson; Metropolitan Edison Co. v. . . . . . . . . . . . . . . . . . . . . . . . 1163 Doe; Sikora v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Dolcefino v. Ray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Dolenz v. Southwest Media Corp. . . . . . . . . . . . . . . . . . . . . . . 1134,1240 Dolloph v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Dorsey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Dostie v. Maine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Doucet; Louisiana Dept. of Transportation and Development v. . . 1120 Douglas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1251 Downs v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Downs v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Doyle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Dread v. Maryland State Police . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Dubuc v. Hopper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Duckett v. Godinez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Dudley; Owens-Corning Fiberglas Corp. v. . . . . . . . . . . . . . . . . . . 1244 Duell v. Utah . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Dukes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198,1226 Dumas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xlv Page Duncan; Usher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Dungca v. Office of Personnel Management . . . . . . . . . . . . . . . . . 1138 Dunn v. Commodity Futures Trading Comm'n . . . . . . . . . . . . . . . 1219 Dunn; Rivens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Dunn v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Dunn v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Dunstable-Groton Corp. v. Groton Planning Bd. . . . . . . . . . . . . . . 1137 Dupont; Florida v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Dupree; Lamar County Bd. of Ed. and Trustees v. . . . . . . . . . . . . 1241 Dupree; Moore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1241 Duquette v. Wisconsin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Dushaw v. Roadway Express, Inc. . . . . . . . . . . . . . . . . . . . . . . . . 1120 Dutton; Pickle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Dwyer v. Sparks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Dykes v. Southeastern Pa. Transportation Authority . . . . . . . . . . 1142 Dymits v. Center for Independence of Disabled . . . . . . . . . . . . . . 1224 Dymits v. Grim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Dyslin; Fraser Deeble v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Dyson v. Pawtucket . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Eades v. Clark Distributing Co. . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Eagerton v. Owner-Operator Independent Drivers Assn., Inc. . . . 1121 Eames v. Small Business Administration . . . . . . . . . . . . . . . . . . . 1210 Earl v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113 Easley v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113 Ebershoff; Shieh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132,1218 Echols v. American Fork Investors . . . . . . . . . . . . . . . . . . . . . . . . 1204 Echols v. Thomas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116 Eckberg, Lammers, Briggs, Wolff & Vierling; Kittler v. . . . . . . . . 1221 Edmond v. Robinson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Edwards; Alton & Southern R. Co. v. . . . . . . . . . . . . . . . . . . . . . . 1221 Edwards v. Balisok . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Edwards v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Eickleberry v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Einhorn v. LaChance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135 Eisner; 640 Broadway Renaissance Co. v. . . . . . . . . . . . . . . . . . . . 1155 El Dorado County; Townzen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Electrical Workers; Billberry v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Electrical Workers; Moore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1234 Electrolux Corp.; Godby v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120,1216 Elgendy v. Nehemiah Plan Homes Project . . . . . . . . . . . . . . . . . . 1106 Elias v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Elliott; Esparza v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Elliott v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 Ellis v. United Airlines, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 517rep123a 01-05-99 17:52:22 PGT: TCRBV (Bound Volume) xlvi TABLE OF CASES REPORTED Page Ellis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Elramly; Immigration and Naturalization Service v. . . . . . . . . . . 1154 Elrod v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Emerson; Bollman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Emery v. Plantier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Empire Travel Service, Inc.; Brasseur v. . . . . . . . . . . . . . . . . . . . 1234 Engelking v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Entron, Ltd.; Crane Vessel Titan 5 v. . . . . . . . . . . . . . . . . . . . . . . 1204 Environmental Coalition of Ojai v. Secretary of Commerce . . . . . 1245 Equal Employment Opportunity Comm'n; Ghent v. . . . . . . . . . . . 1204 Equifax Credit Information Services; Casella v. . . . . . . . . . . . . . . 1150 Ernesto Espinosa v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1122 Erwin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1251 Escamilla v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Escamilla v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 Escusa v. Office of Personnel Management . . . . . . . . . . . . . . . . . . 1142 Esmor Mansfield, Inc.; Amos v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Esparza v. Elliott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Espinosa v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Estacio v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Estate. See name of estate. Estes v. Namba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144,1230 E-Systems, Inc.; Curry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Ethicon, Inc.; United States Surgical Corp. v. . . . . . . . . . . . . . . . 1164 Eugene; Conley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191 Evans v. Kansas City School Dist. . . . . . . . . . . . . . . . . . . . . . . . . 1104 Evans; Romer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620 Evans; Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 E. W. Blanch Co.; Cherokee Ins. Co. v. . . . . . . . . . . . . . . . . . . . . . 1156 Ewing, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 Executive Comm., U. S. Dist. Ct., N. Dist. of Ill.; Palmisano v. 1223 Exxon Co., U. S. A. v. Sofec, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 830 Exxon Corp. v. Youell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1251 Exxon Seamen's Union; SeaRiver Maritime, Inc. v. . . . . . . . . . . . 1251 F.; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1231 Fabian v. Shade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Fallini v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1243 Fargo Women's Health Organization, Inc.; Vanyo v. . . . . . . . . . . . 1168 Farmer v. Hawk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Farmer; Messler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Fauber v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Fauls v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Faunce v. White . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Fauver; Carson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 517rep123a 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xlvii Page Fecht; Price Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Federal Bureau of Investigation; Mata v. . . . . . . . . . . . . . . . . . . . 1234 FCC; BellSouth Telecommunications, Inc. v. . . . . . . . . . . . . . . 1129,1240 FCC; California v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1216 FCC v. Miller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1155 FCC; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1155 FCC; Turner Broadcasting System, Inc. v. . . . . . . . . . . . . . . . . . . 1218 FDIC; Atherton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101,1133,1182 FDIC; Bakker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1233 FDIC; Bank of America National Trust and Savings Assn. v. . . . 1103 FDIC; Hanna v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 FDIC; Hennessy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 FDIC; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 FDIC; Russell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 FEC; Colorado Republican Federal Campaign Committee v. . . . . 1117 FEC; Whitmore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1155 Federal Home Loan Mortgage Corp.; Hinchliffe v. . . . . . . . . . . . . 1209 Felker v. Thomas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Felker v. Turpin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1182,1218 Felter; Roussos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Felton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Ferguson; Hamill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Ferrer v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 FGS Constructors, Inc. v. United States . . . . . . . . . . . . . . . . . . . 1134 Fields v. Carnahan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Fields v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Fields v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Fields; Webb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Filamor v. Office of Personnel Management . . . . . . . . . . . . . . . . . 1138 Fine v. Chevron U. S. A. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1233 Fink; Graven Auction Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 First Advantage Ins., Inc. v. Green . . . . . . . . . . . . . . . . . . . . . . . 1116 First Federal Savings Bank; Osborne v. . . . . . . . . . . . . . . . . . . . . 1237 First National Bank & Trust, Wibaux v. Comptroller of Currency 1233 Fishburne v. Cinergi Productions, Inc. . . . . . . . . . . . . . . . . . . . . . 1134 Fisoli; Funai v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Flamingo Hilton; Allard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Flathead Valley Community College; Talley v. . . . . . . . . . . . . 1121,1216 Flemmings v. Morton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Flinn v. Florida Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Florentino v. Office of Personnel Management . . . . . . . . . . . . 1139,1252 Florida; Allen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Florida; Augustin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Florida; Barkett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 517rep123a 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) xlviii TABLE OF CASES REPORTED Page Florida v. Dupont . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Florida v. Frazier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Florida; Halstead v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Florida; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Florida v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136,1150 Florida v. Rayfield . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Florida; Rodriguez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123,1205 Florida v. Seminole Tribe of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Florida; Seminole Tribe of Fla. v. . . . . . . . . . . . . . . . . . . . . . . . . . 44 Florida; Sobin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Florida; Wootton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Florida Bar; Clement v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Florida Bar; Flinn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Florida Comm'n on Ethics; Colon v. . . . . . . . . . . . . . . . . . . . . . . . 1242 Florida Power & Light Co.; Praxair, Inc. v. . . . . . . . . . . . . . . . . . 1190 Fluehr v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Flynn, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Flynn; Connor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Flynn v. Garden City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Flynn v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Followill; Digby v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Food & Commercial Workers v. Brown Group, Inc. . . . . . . . . . . . 544 Food & Commercial Workers v. Brown Shoe Co. . . . . . . . . . . . . . 544 Ford v. Minnesota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Fordice; Ayers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 Ford Motor Co. v. Fulkerson . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Ford Motor Co. v. Sperau . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1217 Foronda v. Office of Personnel Management . . . . . . . . . . . . . . 1141,1252 Fort Belknap Indian Community; Montana v. . . . . . . . . . . . . . . . . 1129 Fort Peck Assiniboine and Sioux Tribes v. Tubridy . . . . . . . . . . . 1104 Fort Sanders Regional Medical Center; Hartsell v. . . . . . . . . . . . 1120 Fort Sumter Tours, Inc. v. Babbitt . . . . . . . . . . . . . . . . . . . . . . . . 1220 Forty-Estremera v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1162 44 Liquormart, Inc. v. Rhode Island . . . . . . . . . . . . . . . . . . . . . . . 484 Foster v. Gilliam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 Foster v. Hope Medical Group for Women . . . . . . . . . . . . . . . . . . 1104 Foster; Shores v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 $405,089.23 in U. S. Currency; United States v. . . . . . . . . 1102,1132,1154 Fox v. Hinson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Fox v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115,1162 Fragoso; Hamilton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Fraidin v. Weitzman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Fraiser v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Francis v. Department of Commerce . . . . . . . . . . . . . . . . . . . . . . 1224 517rep123a 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xlix Page Francis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Frank v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113 Franklin v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Franklyn v. Vista del Mar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169,1252 Fraser Deeble v. Dyslin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Frazier; Florida v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Fred Meyer, Inc. v. Casey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Free v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Free v. U. S. Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Freestone; Blessing v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 French; Huang v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Fried v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191 Friend v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Fromal v. Jackson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Frost v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Fry v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Frye v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Frymire; Ampex Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1182 Fulkerson; Ford Motor Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Fuller v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Fulton-DeKalb Hospital Authority; Colvard v. . . . . . . . . . . . . . . . 1234 Funai v. Frisoli . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Furrer v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Gadson; Maryland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Gallego-Sanchez v. Immigration and Naturalization Service . . . . . 1151 Gallipeau v. Rhode Island . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Gambino v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Gamble v. Moore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Garcia; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Garcia v. Office of Personnel Management . . . . . . . . . . . . . . . 1141,1252 Garcia v. Riverdale Plating & Heat Treating Co. . . . . . . . . . . . . . 1237 Garcia v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127,1239 Garden City; Flynn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Gardner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Garner v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147,1230 Garner; Vargas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Garraghty; Artis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Garrigan, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1242 Gasperini v. Center for Humanities, Inc. . . . . . . . . . . . . . . . . . . . 1102 Gaston v. Viclo Realty Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Gaylor v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Gee v. Campbell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Gee; Price-El v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Geery v. Shelley School Dist. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 517rep123a 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) l TABLE OF CASES REPORTED Page General Dynamics Corp.; United States ex rel. Willis v. . . . . . . . . 1104 General Motors Corp.; Plott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 General Motors Corp. v. Tracy . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118 Genins, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184 Genish v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Georgia; Andrews v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Georgia; Crowe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Georgia; Morrow v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Georgia Dept. of Public Safety; Willis v. . . . . . . . . . . . . . . . . . . . . 1210 Georgia State Bd. of Pardons and Paroles; Andrews v. . . . . . . . . 1142 Georgia State Bd. of Pardons and Paroles; Polley v. . . . . . . . . . . . 1107 Gerasolo v. Adherence Group, Inc. . . . . . . . . . . . . . . . . . . . . . . . . 1209 Gerdeman, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165 Ghent v. Equal Employment Opportunity Comm'n . . . . . . . . . . . . 1204 Gibson v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Gibson; Sutton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191 Gibson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Gilbert v. San Francisco Bay Area Rapid Transit Dist. . . . . . . . . 1108 Giles v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Gilkey v. Hill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Gill v. Guam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Gilliam; Foster v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 Gillis; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Gillis; Pringle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Glasscock v. Utah . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Glavey v. Dime Savings Bank of N. Y. . . . . . . . . . . . . . . . . . . . . . 1221 Glenn, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 Glenolden Borough; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1167,1251 Glickman; Clifford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132 Glickman v. Wileman Brothers & Elliott, Inc. . . . . . . . . . . . . . . . 1232 Glickman; Wileman Brothers & Elliott, Inc. v. . . . . . . . . . . . . . . . 1233 Globe Newspaper Co. v. United States . . . . . . . . . . . . . . . . . . . . . 1166 Glover, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 Glucksberg; Washington v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1241 Gobert v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Godby v. Electrolux Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120,1216 Goddard v. Kansas Director of Taxation on Assessment of Mari- juana and Controlled Substances Tax . . . . . . . . . . . . . . . . . . . . 1208 Godinez; Duckett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Godwin; Yates v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159,1230 Golb v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 Gold v. Morrison-Knudsen Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Gomez; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Gomez Toledo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 517rep123a 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED li Page Gonzales v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Gonzalez; Hospital San Francisco, Inc. v. . . . . . . . . . . . . . . . . . . . 1136 Gonzalez v. Moises Luna and Associates . . . . . . . . . . . . . . . . . . . . 1222 Gonzalez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110,1215 Gonzalez-Lerma v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Good; Jae v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Gooden v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Goodman v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Goodwin; Walp v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Gordon v. Chater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Gore; BMW of North America, Inc. v. . . . . . . . . . . . . . . . . . . . . . 559 Gorman v. McAninch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106,1204 Gottfried, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1231 Government of Virgin Islands; Petersen v. . . . . . . . . . . . . . . . . . . 1231 Governor of Ala.; Tate v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Governor of Colo. v. Evans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620 Governor of Fla. v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Governor of La. v. Hope Medical Group for Women . . . . . . . . . . . 1104 Governor of Miss.; Ayers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 Governor of N. Y.; McReynolds v. . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Governor of N. C.; Pope v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899 Governor of N. C.; Shaw v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899 Governor of S. D.; Hinkle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Governor of S. D. v. Planned Parenthood, Sioux Falls Clinic . . . . 1174 Governor of Tex. v. Vera . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952 Governor of Wis.; Bartley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Gowin v. Dade County Auto Tag Office . . . . . . . . . . . . . . . . . . . . 1191 Graham v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Graham v. Turpin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Grant v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Grant-Chase v. New Hampshire . . . . . . . . . . . . . . . . . . . . . . . . . . 1140 Graven Auction Co. v. Fink . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Graves v. Burrell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Graves v. Saunders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Graves v. U. S. Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Gray v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Graziani; James v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Great Falls Eye Surgery Center v. United States . . . . . . . . . . . . 1222 Green; First Advantage Ins., Inc. v. . . . . . . . . . . . . . . . . . . . . . . . 1116 Green v. Housing Authority of New Orleans . . . . . . . . . . . . . . . . 1169 Green v. Mellon Bank, N. A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Green v. Morton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Green v. Pennsylvania Municipal Service Co. . . . . . . . . . . . . . . . . 1222 Green v. 25th Judicial Dist. Probation Dept. . . . . . . . . . . . . . . . . . 1240 517rep123a 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lii TABLE OF CASES REPORTED Page Green v. United Pentecostal Church International . . . . . . . . . 1134,1240 Greenberg; Wolfberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Greene, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207 Greenidge v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174 Greenway; Boyce v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Greenwood Trust Co. v. Hunter . . . . . . . . . . . . . . . . . . . . . . . . . . 1241 Greenwood Trust Co.; Stoorman v. . . . . . . . . . . . . . . . . . . . . . . . . 1244 Gregory v. Camp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Gregory; Camp v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Gregory v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Grennier v. Nagle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Grievance Committee for Southern Dist. of N. Y.; Polur v. . . . . . . 1196 Griggs v. South Carolina Electric & Gas Co. . . . . . . . . . . . . . . . . 1156 Grim; Dymits v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Groner; Alligator Farms, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . 1120 Groose; Abdullah v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Groose; Cooper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Groose; Hall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 Groton Planning Bd.; Dunstable-Groton Corp. v. . . . . . . . . . . . . . 1137 GTE Northwest Inc.; Oregon Public Utility Comm'n v. . . . . . . . . 1155 Guam; Gill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Gucikova v. Chrost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Guerrero v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Guest v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Gumm v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Gummo; Depew v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Gundy; Bowen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Gunn; Vargas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107,1230 Gurley v. Swaim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Gussin v. Nintendo of America, Inc. . . . . . . . . . . . . . . . . . . . . . . . 1166 Guth, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 Guzman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Guzman Zayas v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124,1205 Gwinnett County School System; McGuffey v. . . . . . . . . . . . . . . . 1172 Hackensack; Moretti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Hadley; Baker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1233 Hadley v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Hai Cong Pham v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 Hairston v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Hakeem v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Hale; Secakuku v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Hall v. Groose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 Hall v. Indiana Dept. of Revenue . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Halstead v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED liii Page Haman v. King . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Hamill v. Ferguson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Hamill; Harvey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Hamilton v. Fragoso . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Hamlet v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1155 Hammond v. Lindler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Hampton; J. A. L. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Han v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Hand v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1162 Haney, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1154 Haney v. Cumming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Hanks; Roberts v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Hanks; Taylor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Hanlin v. American General Finance, Inc. . . . . . . . . . . . . . . . . . . 1121 Hanlin v. Superior Court of Cal., Santa Clara County . . . . . . . . . 1121 Hanna v. Federal Deposit Ins. Corp. . . . . . . . . . . . . . . . . . . . . . . . 1103 Hansen v. Nebraska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Hansen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Hansen's Estate v. New Haven . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Hanus v. Sears, Roebuck & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Harden v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Hardy v. Orlando . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139,1252 Hardy v. Pinkerton Security Services . . . . . . . . . . . . . . . . . . . . . 1161 Hargett; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Harmony; Thomson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Harper; Young v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Harrington; Independent Life & Accident Ins. Co. v. . . . . . . . . . . 1164 Harris v. Chase Manhattan Bank, N. A. . . . . . . . . . . . . . . . . . . . . 1243 Harris v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Harris v. Montgomery County Dept. of Social Services . . . . . . . . 1132 Harris v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Harris v. Virginia Beach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Harris Corp.; Mullholand v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Harrison v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Hart v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 Hartford Fire Ins. Co.; Catalina Enterprises, Inc. Pension Trust v. 1105 Hartsell v. Fort Sanders Regional Medical Center . . . . . . . . . . . . 1120 Harvell; Blytheville School Dist. No. 5 v. . . . . . . . . . . . . . . . . . . . 1233 Harvell v. Nagle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Harvey v. Bowersox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Harvey v. Hamill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Harvey v. Schriro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Harvey v. "United States Marshal Edmo" . . . . . . . . . . . . . . . . . . 1145 Harvey v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) liv TABLE OF CASES REPORTED Page Hasa v. Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Hassan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Hatch v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Hathaway; Shieh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132,1218 Hauser v. Internal Revenue Service . . . . . . . . . . . . . . . . . . . . . . . 1111 Hawaii; Kiliona v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Hawes v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 Hawk; Cullum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Hawk; Farmer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Hawkins v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Hawkins v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Haws; Jennings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Hayes; McQueen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Hayes v. Spears . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Haynes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Hazen v. Cooper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Health Care Employees; Depperman v. . . . . . . . . . . . . . . . . . . . . 1213 Heller v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Helms v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Helmsley-Spear, Inc.; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Helmstetter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Henderson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654 Hendricks v. Calderon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Hendricks; Kansas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 Hennessey v. Blalack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Hennessy v. Federal Deposit Ins. Corp. . . . . . . . . . . . . . . . . . . . . 1103 Hentz v. Roberts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Hernandez v. New Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Hernandez v. Starbuck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Hernandez v. Van Oss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Hernandez; Vasquez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Hernandez-Vargas v. United States . . . . . . . . . . . . . . . . . . . . . . . 1137 Herrera v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Herring; Marks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Herring; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Hess v. MacAskill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Hesse; Saathoff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Hewitt; Stephen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Hewlett-Packard Co. v. Datagate, Inc. . . . . . . . . . . . . . . . . . . . . . 1115 Hickam v. Connecticut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1221 Hickok v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Hill v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Hill v. Department of Air Force . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Hill; Gilkey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lv Page Hill v. King . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Hill; Martin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Hill v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Hill v. San Mateo County Youth and Family Services Division . . 1170 Hill v. Schroubroek . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Hill v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Hills, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130 Hilton Davis Chemical Co.; Warner-Jenkinson Co. v. . . . . . . . . . . 1218 Hinchliffe v. Federal Home Loan Mortgage Corp. . . . . . . . . . . . . 1209 Hines v. Roach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Hinkle v. Janklow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Hinojosa v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Hinson; Fox v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Hirsh, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185 Hodges; Reliford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Hodges v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Hoesterey v. Cathedral City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185 Hofbauer; Coleman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Hogan; Lake Barrington v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Hoke v. Bludworth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1221 Holden Living Trust v. Joint City-County Bd. of Tax Assessors 1167 Holly Farms Corp. v. National Labor Relations Bd. . . . . . . . . . . . 392 Holmes v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Holmes v. South Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Holmes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Holmes Bi-Rite Supermarket v. United States . . . . . . . . . . . . . . . 1188 Holvey; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Home Ins. Co.; Berkeley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Honda Motor Co. v. Oberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Hook; Arizona v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Hooks v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Hooper v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Hoover; Kiowa Tribe of Okla. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Hope v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Hope v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Hope Medical Group for Women; Foster v. . . . . . . . . . . . . . . . . . . 1104 Hopkins; Lyman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Hopkins; Nelson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Hopper; Dubuc v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Horowitz; Broida v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 Horton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 Hosier v. Wolff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Hospitality Investments of Philadelphia, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement . . . . . . . . . . . . . 1206 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lvi TABLE OF CASES REPORTED Page Hospital San Francisco, Inc. v. Correa Gonzalez . . . . . . . . . . . . . . 1136 House v. Tennessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Houser v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Housing Authority of El Paso; Chavez v. . . . . . . . . . . . . . . . . . . . 1188 Housing Authority of Kansas City; Morris v. . . . . . . . . . . . . . . . . 1236 Housing Authority of New Orleans; Green v. . . . . . . . . . . . . . . . . 1169 Howard v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Howard County Sheriff's Dept.; Pruitt v. . . . . . . . . . . . . . . . . . . . 1235 Howell v. Koch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Hoxsie v. Kerby . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Hoyett v. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194,1198 Huang v. French . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Hubert's Estate; Commissioner v. . . . . . . . . . . . . . . . . . . . . . . . . 1166 Hudson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Huffman; Terry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Huffman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Hufstetler v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 Hughes; Deloatch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120,1204 Hughes Aircraft Co. v. United States ex rel. Schumer . . . . . . . . . 1218 Hughes, Hubbard & Reed; Shearson Lehman Brothers, Inc. v. . . 1245 Hughes & Luce v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Hughes Salaried Retirees Action Committee v. Administrator, Hughes Non-Bargaining Retirement Plan . . . . . . . . . . . . . . . . . 1189 Hughey v. Columbia County Sheriff's Dept. . . . . . . . . . . . . . . . . . 1160 Humphrey; Pourzandvakil v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Hundley; Wyldes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Hunt; Pope v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899 Hunt; Shaw v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899 Hunter v. Boyd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Hunter; Greenwood Trust Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1241 Hunter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Hurel Guerrero v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Hurinenko v. Chevron U. S. A. Inc. . . . . . . . . . . . . . . . . . . . . . . . 1240 Hurst v. Supreme Court of Cal. . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Hurtado-Gonzalez v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1250 Huskisson; Calhoun v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1182 Hutching v. United States . . . . . . . . . . . . . . . . . . . . . . . 1127,1227,1246 Hutton v. Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Huu To v. Rubin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Hyatt Regency Phoenix Hotel Co.; Winston & Strawn v. . . . . . . . 1234 Hyde v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Hyles; All American Asphalt v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Hyman v. Virginia Dept. of Taxation . . . . . . . . . . . . . . . . . . . . . . 1128 Hyppolite v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1162 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lvii Page Iadarola v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Ibalio v. Office of Personnel Management . . . . . . . . . . . . . . . . . . . 1138 ICI Americas Inc.; Carlson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 ICI Americas, Inc.; Kemmerer v. . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Idaho; Blair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Idaho v. Coeur d'Alene Tribe of Idaho . . . . . . . . . . . . . . . . . . . . . 1132 Idaho; Coeur d'Alene Tribe of Idaho v. . . . . . . . . . . . . . . . . . . . . . 1133 Idaho v. Lankford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Idaho v. Stuart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1234 Idemudia v. Consolidated Rail Corp. . . . . . . . . . . . . . . . . . . . . . . . 1172 Idowu v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Ifill v. District of Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Igbo v. Church of Jesus Christ of Latter-day Saints . . . . . . . . . . . 1194 Illinois; Antonelli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Illinois; Burt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Illinois; Dilworth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Illinois; Franklin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Illinois; Guest v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Illinois; Hope v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Illinois; Kotsias v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Illinois v. Montanez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1251 Illinois; Pudlo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Illinois; Sedano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Illinois; Sewell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Illinois; Sims v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Illinois; Taylor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140 Illinois; Trujillo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Illinois; Wheeler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Immigration and Naturalization Service; Bandura v. . . . . . . . . . . 1105 Immigration and Naturalization Service v. Elramly . . . . . . . . . . . 1154 Immigration and Naturalization Service; Gallego-Sanchez v. . . . . 1151 Immigration and Naturalization Service; Soler-Somahano v. . . . . 1144 Independent Life & Accident Ins. Co. v. Harrington . . . . . . . . . . 1164 Indiana Dept. of Correction v. Sampley . . . . . . . . . . . . . . . . . . . . 1220 Indiana Dept. of Revenue; Hall v. . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Industrial Comm'n of Ariz.; Morales v. . . . . . . . . . . . . . . . . . . . . . 1233 Infotechnology, Inc.; Abeles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Ingalls Shipbuilding, Inc. v. Director, OWCP . . . . . . . . . . . . . 1186,1243 In re. See name of party. Insulation Corp. of America; Brobston v. . . . . . . . . . . . . . . . . . . . 1209 Internal Revenue Service; Baker v. . . . . . . . . . . . . . . . . . . . . . . . 1192 Internal Revenue Service; Hauser v. . . . . . . . . . . . . . . . . . . . . . . 1111 International. For labor union, see name of trade. International Amb. Programs; Archexpo Com. & Ind. Centre v. 1167 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lviii TABLE OF CASES REPORTED Page International Business Machines Corp.; Misek-Falkoff v. . . . . 1111,1230 International Business Machines Corp.; United States v. . . . . . . . 843 Iowa; Seehan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Iowa; Swartz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Iowa; Walker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Iowa Bd. of Medical Examiners; Rosen v. . . . . . . . . . . . . . . . . . . . 1104 Iowa Dept. of Corrections; Tharp v. . . . . . . . . . . . . . . . . . . . . . . . 1135 Iowa-Missouri Conference of Seventh-day Adventists; Pierce v. . . 1220 Irons v. Karceski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Isaac v. Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Isla v. Office of Personnel Management . . . . . . . . . . . . . . . . . . . . 1139 Israel Identity Tours, Inc.; Israel Travel Advisory Service, Inc. v. 1220 Israel Travel Advisory Service, Inc. v. Israel Identity Tours, Inc. 1220 ITT Electro-Optical Products Division; Csorba v. . . . . . . . . . . 1160,1252 Ivkovich; Walsh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Ivy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 J.; M. L. B. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118,1185 Jackson v. Alabama . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Jackson; Fromal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Jackson v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124,1205 Jackson v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Jackson v. United States . . . . . . . . . . . . . . 1128,1139,1147,1157,1192,1229 Jacob v. Metrolaser, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1234 Jacobs v. Circuit Court of Wis., Marathon County . . . . . . . . . . . . 1251 Jacobs v. Kern Community College Dist. . . . . . . . . . . . . . . . . . . . 1135 Jacques v. Rhode Island . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 J. A. Croson Co. v. Central Ohio Joint Vocational School Dist. . . . 1155 Jae v. Good . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Jaffer v. Board of Managers of Revere Condominium . . . . . . . . . . 1171 J. A. L. v. Hampton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 James, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 James v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184 James v. Graziani . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 James v. State Bar of Cal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 James; Tate v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 James v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Janklow; Hinkle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Janklow v. Planned Parenthood, Sioux Falls Clinic . . . . . . . . . . . . 1174 Janneh v. The Regency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Jardine v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185 Jedrzejewski v. Menacker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Jefferson County; Richards v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793 Jeffress v. Suter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Jenkins v. New Mexico Securities Division . . . . . . . . . . . . . . . . . . 1150 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lix Page Jenkins; Wesley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Jennings, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 Jennings v. Haws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Jennings v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125,1228 Jensen v. Santa Clara County . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Jensen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Jersey Carting, Inc. v. Board of Regulatory Comm'rs of N. J. . . . 1135 Jervis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Jespersen v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Jessup v. Blackfeet Tribe of Blackfeet Reservation . . . . . . . . . . . 1129 Jeter v. Dixon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Jim W. v. Margene L. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Jim Wells County; Chapa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Jiricko v. Lakin & Herndon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Johansen; Combustion Engineering, Inc. v. . . . . . . . . . . . . . . . . . 1217 Johnson v. Aaron . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Johnson; Ables v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Johnson; Abrams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207,1241 Johnson; Beets v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157,1252 Johnson; Belyeu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Johnson; Brunston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Johnson; Cavanaugh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Johnson; Clark v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Johnson; Crooms v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Johnson v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Johnson v. Gillis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Johnson; Harris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Johnson; Hinojosa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Johnson; Holmes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Johnson; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124,1205 Johnson v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . 1122,1128,1171,1224 Johnson; Johnson-Bey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Johnson; Lemon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1182 Johnson; Locke v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Johnson; Luken v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Johnson; Martin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117 Johnson; McClelland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Johnson; McDonald v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 Johnson; Montoya v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Johnson v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Johnson; Nunez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Johnson; Ramer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Johnson v. Reed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 Johnson; Rogers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lx TABLE OF CASES REPORTED Page Johnson; Sherman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 Johnson; Stitt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Johnson; Tedder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Johnson v. United States . . . . . . . . . . . . . . . . 1113,1115,1149,1158,1162 Johnson; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207 Johnson v. Welby . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 Johnson; West v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Johnson-Bey v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Joint City-County Bd. of Tax Assessors; Holden Living Trust v. 1167 Jones, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165,1218 Jones v. ABC­TV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132 Jones v. American Civil Liberties Union Foundation . . . . . . . 1118,1186 Jones v. Bowersox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Jones; Bush v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 Jones v. Chemetron Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Jones; Florida v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136,1150 Jones v. Garcia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Jones; Gibson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Jones v. Gomez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Jones v. Holvey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Jones; Hoyett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194,1198 Jones v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Jones v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Jones v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Jordan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Joseph v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Joseph A.; New Mexico Dept. of Human Services v. . . . . . . . . . . . 1190 Joyce v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Juarez v. Lee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Judge, District Court of Appeal of Fla., First Dist.; Rodriguez v. 1204 Judge, District Court of Appeal of Fla., Fourth Dist.; Messler v. 1247 Judge, District Court of Kan., 31st Dist.; DeYoung v. . . . . . . . . . . 1198 Judge, District Court of Tex., Potter County; Bollman v. . . . . . . . 1107 Judge, Jefferson County District Court; Swendra v. . . . . . . . . . . . 1196 Judge, Justice Court of Sunflower County; Graves v. . . . . . . . . . . 1142 Judge, Superior Court of Cal., San Joaquin County; Hernandez v. 1213 Judge, Superior Court of Ga., Chattahoochee County; Digby v. . . 1144 Judge, Superior Court of Ga., Gwinnett County; McCauley v. . . . 1149 Judge, Tulsa County; Dubuc v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Justice v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Kaczynski v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 Kailey v. Norton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Kakita; Shieh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343,1186 Kane v. Magna Mixer Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxi Page Kane; Magna Mixer Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 Kansas; DeYoung v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Kansas v. Hendricks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 Kansas City; McCarthy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108,1240 Kansas City School Dist.; Evans v. . . . . . . . . . . . . . . . . . . . . . . . . 1104 Kansas Director of Taxation on Assessment of Marijuana and Con- trolled Substances Tax; Goddard v. . . . . . . . . . . . . . . . . . . . . . . 1208 Karageorgos v. Beach, Cadigan & Martin . . . . . . . . . . . . . . . . . . . 1143 Karceski; Irons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Karimi v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1251 Kasenow; Riggins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Katz & Associates; Vrba v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Kaylo; McCormick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Keane; Warren v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Kearns v. Chrysler Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1230 Kee v. Argus Life Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Keeffe; Linehan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Kelleher, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165 Keller; Misek-Falkoff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1252 Kelley v. Department of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Kelley v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Kellotat v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Kelly, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 Kelly; Caruso v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Kelly; Metcalfe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Kelly v. Penson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Kemmerer v. ICI Americas, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Kendricks v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Kennebec County; Struck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Kennedy, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Kennedy v. Court of Appeals of Mich. . . . . . . . . . . . . . . . . . . . . . 1160 Kennedy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Kentucky; McCreary v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135 Kentucky; Sanborn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Kentucky Revenue Cabinet; St. Ledger v. . . . . . . . . . . . . . . . . . . 1206 Kentucky Transportation Cabinet; Cassity v. . . . . . . . . . . . . . . . . 1209 Kentucky Transportation Cabinet; C & B Trucking v. . . . . . . . . . 1209 Kerby; Hoxsie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Kern Community College Dist.; Jacobs v. . . . . . . . . . . . . . . . . . . . 1135 Key West; Mertz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Kiliona v. Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Kimbrough v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Kincade; Blue Springs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Kincheloe; LaPierre v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxii TABLE OF CASES REPORTED Page King v. Clayton County Comm'n . . . . . . . . . . . . . . . . . . . . . . . . . 1208 King; Haman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 King; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 King; Morris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 King Instrument Corp.; Perego v. . . . . . . . . . . . . . . . . . . . . . . . . 1188 Kinley v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Kiowa Tribe of Okla. v. Hoover . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Kissane v. Trippett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Kittler v. Eckberg, Lammers, Briggs, Wolff & Vierling . . . . . . . . 1221 Klat v. San Diego County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130 Klauser; Balele v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Kleinschmidt v. District Court of Appeal of Fla., First Dist. . . . . 1226 Kletzelman v. Capistrano Unified School Dist. . . . . . . . . . . . . . . . 1191 Knapp Shoes Inc. v. Sylvania Shoe Mfg. Corp. . . . . . . . . . . . . . . . 1245 Knight v. Court of Civil Appeals of Ala. . . . . . . . . . . . . . . . . . . . . 1151 Knight v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Knight v. United States Fidelity & Guaranty Ins. Co. . . . . . . . . . 1134 Knight Steel Fabricators v. U. S. Fidelity & Guaranty Ins. . . . . . 1134 Kobayashi v. Nakamura . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Koch; Howell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Koffiel v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Kornahrens v. Moore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Kornblum; St. Louis County v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Kotsias v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Kowalski v. Oregon State Bar . . . . . . . . . . . . . . . . . . . . . . . . 1108,1230 Krieger; Shieh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343,1186 Kroger Co.; Mosier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 Kuhlmann; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1216 Kuhn; Ollie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Kurnik v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Kussair v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Kwong v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 L. v. Hampton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 L.; Jim W. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Labor Union. See name of trade. LaChance; Einhorn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135 Lacombe; Nash v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Lake Barrington v. Hogan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Lakin & Herndon; Jiricko v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Lamar County Bd. of Ed. and Trustees v. Dupree . . . . . . . . . . . . 1241 Lamb v. Citibank, N. A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Lancour v. Moore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Lane v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Lane; Olsen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158,1252 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxiii Page Lane v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Lang v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Lankford; Idaho v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 LaPierre v. Kincheloe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Larrabee v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Law v. Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Lawhorn v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 Lawrence v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1243 Lawson v. Chater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106,1204 Lawson v. Vera . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952 Leary; Rodenbaugh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 LeBon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Lebron v. National Railroad Passenger Corp. (AMTRAK) . . . . . . 1188 Lee; Juarez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Lee v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 LeFevre v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Lehtinen v. Quantum Chemical Corp. . . . . . . . . . . . . . . . . . . . . . . 1244 Lemon v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1182 Levario v. State Bar of Tex. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1218 Levien v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 Levine v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Lewis; Caterpillar Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Lewis v. Century Mortgage Co. . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Lewis v. Federal Deposit Ins. Corp. . . . . . . . . . . . . . . . . . . . . . . . 1204 Lewis; Spychala v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Lewter; Perry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Liberty Mut. Ins. Co. v. Chemstar, Inc. . . . . . . . . . . . . . . . . . . . . 1219 Libman Co. v. Vining Industries, Inc. . . . . . . . . . . . . . . . . . . . . . . 1234 Libutti v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Liggins v. Ohio Dept. of Development . . . . . . . . . . . . . . . . . . . . . 1148 Lincoln; Stevens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Lindenmeier v. Siemens Power Corp. . . . . . . . . . . . . . . . . . . . . . . 1221 Lindler; Hammond v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Linehan v. Keeffe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Linton v. Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Linton; St. Peter Villa, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1155 Little v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Litz v. Thomas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135,1240 Liu v. New York City Police Dept. . . . . . . . . . . . . . . . . . . . . . . . . 1167 Lloyd v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Local. For labor union, see name of trade. Locke v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Lockheed Corp. v. Spink . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 882,1118 Lohr v. Medtronic, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxiv TABLE OF CASES REPORTED Page Lohr; Medtronic, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118 Lonchar v. Thomas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314 London v. Concha . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1183 London v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1155 Longshoremen; Minetti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Lopez v. Monterey County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118 Lopez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Lorentz; DeYoung v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Lorenz, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205,1232 Los Angeles; Baxter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Los Angeles; Ruvalcaba v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1216 Los Angeles County Dept. of Children and Family Servs.; Rios v. 1234 Louisiana; Campbell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Louisiana; Sanders v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Louisiana Dept. of Transportation and Development v. Doucet . . 1120 Louisiana Public Service Comm'n; Benoit v. . . . . . . . . . . . . . . . . . 1117 Love v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Love; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Loving v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 748 Lowe v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Lowe v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Lowenschuss v. Resorts International, Inc. . . . . . . . . . . . . . . . . . 1243 Lucas v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Lucien v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Ludmer; Nernberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 Lugo; Reyes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Luken v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Luna and Associates; Gonzalez v. . . . . . . . . . . . . . . . . . . . . . . . . 1222 Lussier v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Lyman v. Hopkins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Lynce v. Mathis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 Lynch v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143,1252 Lyon v. Alabama State Bar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Maass; Dixon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 MacArmour v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 MacAskill; Hess v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Mack v. Skupniewitz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Madden v. Savage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Madison; Silva v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Maffeo; Campisi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Magante v. Office of Personnel Management . . . . . . . . . . . . . . . . 1140 Maglalang v. Office of Personnel Management . . . . . . . . . . . . . . . 1140 Magna Mixer Co. v. Kane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 Magna Mixer Co.; Kane v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxv Page Mahern; Ohio Agricultural Commodity Depositors Fund v. . . . . . 1130 Maine; Dostie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Maine; Sevigny v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107,1158 Malloy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Malone; Cooper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Malone v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1216 Management Co. Entertainment Group; Weinberg v. . . . . . . . . . . 1191 Mangrum v. Chater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Mangrum v. Simmons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Marathon Oil Co.; Motley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Marchese v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Marcinek v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Marcus, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 Maresca v. Commissioner of Patents and Trademarks . . . . . . . . . 1115 Margene L.; Jim W. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Marian v. Calles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Markman v. Westview Instruments, Inc. . . . . . . . . . . . . . . . . . . . 370 Markovitch, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184 Marks v. Herring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Marsh v. Department of Veterans Affairs . . . . . . . . . . . . . . . . . . . 1226 Marshall v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Martin v. Hill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Martin v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117 Martin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161,1251 Martinez, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Martinez v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Martinez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114,1148 Martinez-Martinez v. United States . . . . . . . . . . . . . . . . . . . . . . . 1115 Martorano v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 "Mary"; "Bob" v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Maryboy v. Utah State Tax Comm'n . . . . . . . . . . . . . . . . . . . . . . 1220 Maryland; Baker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Maryland v. Gadson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Maryland State Police; Dread v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Mason v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Massachusetts; McLaughlin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Massachusetts; Wornum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Massachusetts Comm'r of Revenue; Cooper v. . . . . . . . . . . . . . . . 1221 Mata v. Federal Bureau of Investigation . . . . . . . . . . . . . . . . . . . 1234 Mata; McQueen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Mates v. Occupational Safety and Health Administration . . . . 1105,1204 Mathis; Lynce v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 Matthews v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125,1235 Mattison v. Roach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxvi TABLE OF CASES REPORTED Page Mattos v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Mauricio v. Office of Personnel Management . . . . . . . . . . . . . . . . 1138 Mauro v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126,1252 Maxwell, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Maybeck v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Maydak v. Wener . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Mayles v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Mayo v. Office of Personnel Management . . . . . . . . . . . . . . . . . . . 1140 Mayor of Baltimore City; Anheuser-Busch, Inc. v. . . . . . . . . . . . . 1206 Mays v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Mazurkiewicz; Zilich v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 MBNA America Bank, N. A.; Copeland v. . . . . . . . . . . . . . . . . . . 1243 McAninch; Gorman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106,1204 McBride; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 McBride v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 McBride v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 McCarthy v. Kansas City . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108,1240 McCarthy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 McCarver v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 McCastle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 McCaughtry; Bergmann v. . . . . . . . . . . . . . . . . . . . 1126,1160,1205,1240 McCauley v. Winegarden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 McClaran v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 McClelland v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 McClelland v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 McCloskey, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 McCollough; Bergmann v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141,1230 McCormack v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 McCormick v. Kaylo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 McCreary v. Kentucky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135 McCutcheon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 McDade; Price v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 McDaniel v. McKenna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 McDonald v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 McDonnell Douglas Helicopter Co.; Burley v. . . . . . . . . . . . . . 1143,1216 McElrath v. Phillips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165 McFarland v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 McGeshick v. Choucair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 McGuffey v. Gwinnett County School System . . . . . . . . . . . . . . . . 1172 McIntyre v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 McKenna; McDaniel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 McKenna v. Twin Cities Area New Party . . . . . . . . . . . . . . . . . . 1219 McKenzie v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 McLaughlin v. Massachusetts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxvii Page McLaughlin v. North Carolina Bd. of Elections . . . . . . . . . . . . . . 1104 McLeod v. News-Register Publishing Co. . . . . . . . . . . . . . . . . . . . 1116 McLeod v. Oregon Lithoprint, Inc. . . . . . . . . . . . . . . . . . . . . . . . . 1116 McMahan & Co.; Wherehouse Entertainment, Inc. v. . . . . . . . . . . 1190 McMillan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 McNeel v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 McNelton v. Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 McQueen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 McQueen v. Cannon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 McQueen v. Hayes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 McQueen v. Mata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 McQueen v. Turner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 McReynolds v. Pataki . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 McWilliams v. Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Medina v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Medina-Acevedo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Medlock v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Medtronic, Inc. v. Lohr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118 Medtronic, Inc.; Lohr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118 Meeks v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Melahn; Warmus v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1241 Melancon v. Rader . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Melka Marine, Inc., In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 Melka Marine, Inc. v. Colonial Beach . . . . . . . . . . . . . . . . . . . . . . 1245 Melkonian v. Truck Ins. Exchange . . . . . . . . . . . . . . . . . . . . . . . . 1151 Mellon Bank, N. A.; Green v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Meloy; Davenport v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Meloy; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158,1230 Menacker; Jedrzejewski v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Mendoza-Figueroa v. United States . . . . . . . . . . . . . . . . . . . . . . . 1151 Menken v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Menna's Estate v. St. Agnes Medical Center . . . . . . . . . . . . . . . . 1165 Mercer v. Monzack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Merkle; Aleali v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Mertz v. Key West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Messler v. Farmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Metcalfe v. Kelly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Metcalfe v. Metcalfe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Methodist Hospital of Ind.; Tinsley v. . . . . . . . . . . . . . . . . . . . . . . 1146 Metrolaser, Inc.; Jacob v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1234 Metropolitan Edison Co. v. Dodson . . . . . . . . . . . . . . . . . . . . . . . . 1163 Metropolitan Life Ins. Co.; Cheng v. . . . . . . . . . . . . . . . . . . . . . . . 1248 Meyer v. National Solid Wastes Management Assn. . . . . . . . . . . . 1119 Meyer, Inc. v. Casey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxviii TABLE OF CASES REPORTED Page Micci, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117,1231 Michigan; Bennis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Michigan Attorney Grievance Comm'n; Pitsch v. . . . . . . . . . . . . . 1172 Middlesex Mut. Assurance Co.; Clinton v. . . . . . . . . . . . . . . . . . . . 1104 Midwest Motor Express v. Central States, S. E. & S. W. Areas Pens. Fd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Mier v. Van Dyke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Miller v. AmSouth Bancorp., N. A. . . . . . . . . . . . . . . . . . . . . . . . . 1213 Miller v. Federal Communications Comm'n . . . . . . . . . . . . . . . . . 1155 Miller; Federal Communications Comm'n v. . . . . . . . . . . . . . . . . . 1155 Miller; National Assn. of Broadcasters v. . . . . . . . . . . . . . . . . . . . 1155 Miller v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Miller v. Oregon State Prison . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Miller v. Purkett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Miller; Slaton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Miller v. Tennessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Miller v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1103,1147,1228 Mills v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Mills v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Milton S. Katz & Associates; Vrba v. . . . . . . . . . . . . . . . . . . . . . . 1213 Mims, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165 Mims v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Minetti v. Longshoremen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Minnesota; Bowles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Minnesota; Ford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Minnesota; Pettee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Minnesota; R. J. Reynolds Tobacco Co. v. . . . . . . . . . . . . . . . . . . . 1222 Minnesota; Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Misch v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Misek-Falkoff v. International Business Machines Corp. . . . . . 1111,1230 Misek-Falkoff v. Keller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1252 Mississippi; Alexander v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Mississippi; Bevill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Mississippi; Boyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Mississippi; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Missouri Pacific R. Co. v. Shepherd . . . . . . . . . . . . . . . . . . . . . . . 1235 Mitchell v. Bilby-Knight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Mitchell v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Mitrano, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 Mitrano v. Colonial Beach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 M. L. B. v. S. L. J. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118,1185 Mock v. Pennsylvania Dept. of Environmental Resources . . . . . . . 1216 Moises Luna and Associates; Gonzalez v. . . . . . . . . . . . . . . . . . . . 1222 Molina v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxix Page Moltan Co. v. Swaim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Monreal v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174 Montana; Craig v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Montana v. Fort Belknap Indian Community . . . . . . . . . . . . . . . . 1129 Montana Dept. of Corrections and Human Services; Wolfe v. . . . . 1192 Montana Dept. of Transportation; Carter v. . . . . . . . . . . . . . . . . . 1188 Montanez; Illinois v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1251 Monterey County; Lopez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118 Montgomery; Dayton Area Visually Impaired Persons, Inc. v. . . . 1135 Montgomery County Dept. of Social Services; Harris v. . . . . . . . . 1132 Montgomery Ward Credit Corp.; Tucker v. . . . . . . . . . . . . . . . . . 1248 Montoya v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Monzack; Mercer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Moomchi v. University of N. M. . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Moon v. Thomas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Moo & Oink, Inc.; Stancil v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Moore; Apache Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1217 Moore; Cantrell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Moore v. Dupree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1241 Moore v. Electrical Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1234 Moore; Gamble v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Moore; Kornahrens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Moore; Lancour v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Moore v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Moore v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Moose Lodge #259 (Salt Lake City) v. Department of ABC . . . . . 1221 Morales v. Industrial Comm'n of Ariz. . . . . . . . . . . . . . . . . . . . . . 1233 Morata v. U. S. Postal Service . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Moretti v. Hackensack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Morgan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148,1207 Morgan Hill; Berger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Morris v. Housing Authority of Kansas City . . . . . . . . . . . . . . . . . 1236 Morris v. King . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Morris v. School Bd. of Norfolk . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Morrison v. Reno . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Morrison-Knudsen Co.; Gold v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Morris Products, Inc.; Arvin-Thornton v. . . . . . . . . . . . . . . . . . . . 1151 Morrow v. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Morrow v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Morse v. Republican Party of Va. . . . . . . . . . . . . . . . . . . . . . . . . . 186 Morton; Flemmings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Morton; Green v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Morton; Square v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Mosier v. Kroger Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxx TABLE OF CASES REPORTED Page Motley v. Marathon Oil Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1190 Moyer; Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Mrozowski; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135 Mukherjee v. Sheraton-Palace Hotel . . . . . . . . . . . . . . . . . . . . . . . 1237 Mulazim v. Nuckles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Mullens v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Mullholand v. Harris Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Munoz v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Muraca, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Murdock v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Murphy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Murray; Coleman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Murray; Construction Workers v. . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Murray v. Roach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Murray v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113 Murtagh; Berks County v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1104 Musser v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Myers; Catanio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Myers; Ornelas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Myles v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Nadal v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1230 Nagle; Cotton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Nagle; Grennier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Nagle; Harvell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Nakamoto v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Nakamura; Kobayashi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Namba; Estes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144,1230 Nance v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Nansay Haw., Inc. v. Public Access Shoreline Haw. . . . . . . . . . . . 1163 Nash v. Lacombe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Nasim v. Warden, Md. House of Correction . . . . . . . . . . . . . . . . . 1163 Nassimos v. New Jersey Bd. of Examiners of Master Plumbers . . 1244 National Assn. of Broadcasters v. Miller . . . . . . . . . . . . . . . . . . . 1155 National Assn. of Review Appraisers & Mortgage Underwriters, Inc. v. Appraisal Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 National Assn., Reversionary Prop. Owners v. Surface Transp. Bd. 1106 National Basketball Assn.; Williams v. . . . . . . . . . . . . . . . . . . . . . 1153 National Labor Relations Bd.; Auciello Iron Works, Inc. v. . . . . . 781 National Labor Relations Bd.; Holly Farms Corp. v. . . . . . . . . . . 392 National Labor Relations Bd.; President Container, Inc. v. . . . . . 1243 National Labor Relations Bd.; Teamsters v. . . . . . . . . . . . . . . . . . 1133 National Mediation Bd.; Bravo v. . . . . . . . . . . . . . . . . . . . . . . . . . 1104 National Railroad Passenger Corp. (AMTRAK); Lebron v. . . . . . 1188 National Solid Wastes Management Assn.; Meyer v. . . . . . . . . . . 1119 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxxi Page National Super Markets, Inc.; Bass v. . . . . . . . . . . . . . . . . . . . . . 1208 NationsBanc Mortgage Corp.; Saleem v. . . . . . . . . . . . . . . . . . . . . 1107 Nava v. United States Soccer Federation . . . . . . . . . . . . . . . . . . . 1225 Navajo County Bd. of Supervisors; Stanislaw v. . . . . . . . . . . . . . . 1236 Navarro v. Office of Personnel Management . . . . . . . . . . . . . . . . . 1140 Nave v. Bowersox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Neal v. Cooper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Nebraska; Hansen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Neely v. Rutherford County Schools . . . . . . . . . . . . . . . . . . . . . . 1134 Nehemiah Plan Homes Project; Elgendy v. . . . . . . . . . . . . . . . . . 1106 Nelson; Barnett Bank of Marion County, N. A. v. . . . . . . . . . . . . . 25 Nelson v. Cannon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Nelson v. Hopkins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Nelson v. Office of Personnel Management . . . . . . . . . . . . . . . . . . 1154 Nelson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113,1229 Nelthropp; Ross v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Nernberg v. Ludmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 Netherland v. Tuggle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1301 Netter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130 Neufeld v. Baltimore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Nevada; DeBarr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Nevada; Hasa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Nevada; McNelton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Nevada; Riker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Nevada Bd. of Medical Examiners; Bass v. . . . . . . . . . . . . . . . . . . 1234 Newberry; Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 New Hampshire; Covillion v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 New Hampshire; Grant-Chase v. . . . . . . . . . . . . . . . . . . . . . . . . . 1140 New Hampshire; Rios v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 New Hampshire Bd. of Licensure for Land Surveyors; Smith v. . 1191 New Hampshire Motor Transport v. Plaistow . . . . . . . . . . . . . . . 1120 New Haven; Hansen's Estate v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 New Jersey; Ayars v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113,1227 New Jersey v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1242 New Jersey; Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 New Jersey Bd. of Examiners of Master Plumbers; Nassimos v. . 1244 New Jersey Division of Youth and Family Services; Delbridge v. 1146 Newman v. Consolidation Coal Co. . . . . . . . . . . . . . . . . . . . . . . . . 1128 Newman v. Worcester County Dept. of Social Services . . . . . . . . 1136 New Mexico; Aguilar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 New Mexico; Hernandez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 New Mexico; Texas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 New Mexico Dept. of Human Services v. Joseph A. . . . . . . . . . . . 1190 New Mexico Securities Division; Jenkins v. . . . . . . . . . . . . . . . . . 1150 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxxii TABLE OF CASES REPORTED Page News-Register Publishing Co.; McLeod v. . . . . . . . . . . . . . . . . . . 1116 Newton; Aguilar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145,1230 Newton v. Board to Determine Fitness of Bar Applicants, Su- preme Court of Ga. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 New York; Abdul Hakeem v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 New York; Brito v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 New York; Iadarola v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 New York; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 New York; Kelley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 New York; Larrabee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 New York; New Jersey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1242 New York; Slade v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 New York; Sussman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 New York City; Bal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 New York City; Department of Commerce v. . . . . . . . . . . . . . . . . 1 New York City; Oklahoma v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 New York City; Wisconsin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 New York City Police Dept.; Liu v. . . . . . . . . . . . . . . . . . . . . . . . 1167 New York Comm'n of Correction; Coleman v. . . . . . . . . . . . . . . . . 1160 New York State Workers' Compensation Bd.; White v. . . . . . . . . 1144 New York Telephone; Olenick v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Nguyen Huu To v. Rubin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Nicholas v. Reno . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Nichols; Cotner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Nicit v. Nicit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120 Nighttime Concepts, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . 1206 Nintendo of America, Inc.; Gussin v. . . . . . . . . . . . . . . . . . . . . . . 1166 Noble v. Columbia County Redevelopment Authority . . . . . . . . . . 1119 Nobles v. Office of Personnel Management . . . . . . . . . . . . . . . . . . 1138 Nobles v. Welborn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Nock v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Nolan v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 Noland; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535 Nooner v. Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Nordvik v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Norris v. Robinson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 Norris; Russell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 North Carolina; Boyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 North Carolina; Burr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 North Carolina; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 North Carolina; Frye v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 North Carolina; Gregory v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 North Carolina; Lynch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143,1252 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxxiii Page North Carolina; McCarver v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 North Carolina; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 North Carolina; Shrader v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191 North Carolina; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 North Carolina; Sneeden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 North Carolina; Walls v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 North Carolina Bd. of Elections; McLaughlin v. . . . . . . . . . . . . . . 1104 Norton; Kailey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Norton; Ross v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Norton; Salazar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Norwest Corp. v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Notheis v. Petkovich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Noxon, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102 Nuckles; Mulazim v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Nunez v. Costello . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Nunez v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Nuss v. Office of Personnel Management . . . . . . . . . . . . . . . . . . . 1205 Nuth; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 NYNEX; Troni v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1206 NYSA­ILA Medical and Clinical Services Fund; De Buono v. . . . 1232 Oberg; Honda Motor Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Occupational Safety and Health Administration; Mates v. . . . . 1105,1204 O'Connor v. Consolidated Coin Caterers Corp. . . . . . . . . . . . . . . . 308 Oden v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Office of Personnel Management; Alcones v. . . . . . . . . . . . . . . . . . 1140 Office of Personnel Management; Alferos v. . . . . . . . . . . . . . . 1139,1251 Office of Personnel Management; Alvarez v. . . . . . . . . . . . . . . . . . 1226 Office of Personnel Management; Bernardez v. . . . . . . . . . . . . . . . 1142 Office of Personnel Management; Bondad v. . . . . . . . . . . . . . . 1139,1252 Office of Personnel Management; Cabiles v. . . . . . . . . . . . . . . . . . 1139 Office of Personnel Management; Calisaan v. . . . . . . . . . . . . . . . . 1139 Office of Personnel Management; Carpio v. . . . . . . . . . . . . . . . . . . 1139 Office of Personnel Management; Cayanan v. . . . . . . . . . . . . . . . . 1139 Office of Personnel Management; Coronel v. . . . . . . . . . . . . . . 1140,1252 Office of Personnel Management; Corpuz v. . . . . . . . . . . . . . . . . . 1139 Office of Personnel Management; Cudal v. . . . . . . . . . . . . . . . . . . 1211 Office of Personnel Management; Custodio v. . . . . . . . . . . . . . . . . 1140 Office of Personnel Management; Daguinotnot v. . . . . . . . . . . 1138,1251 Office of Personnel Management; Danao v. . . . . . . . . . . . . . . . . . . 1139 Office of Personnel Management; De Guzman v. . . . . . . . . . . . . . . 1211 Office of Personnel Management; De Jesus v. . . . . . . . . . . . . . . . . 1138 Office of Personnel Management; Dela Rea v. . . . . . . . . . . . . . . . . 1140 Office of Personnel Management; Delos Reyes v. . . . . . . . . . . . . . 1141 Office of Personnel Management; Dungca v. . . . . . . . . . . . . . . . . . 1138 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxxiv TABLE OF CASES REPORTED Page Office of Personnel Management; Escusa v. . . . . . . . . . . . . . . . . . 1142 Office of Personnel Management; Filamor v. . . . . . . . . . . . . . . . . . 1138 Office of Personnel Management; Florentino v. . . . . . . . . . . . . 1139,1252 Office of Personnel Management; Foronda v. . . . . . . . . . . . . . 1141,1252 Office of Personnel Management; Garcia v. . . . . . . . . . . . . . . . 1141,1252 Office of Personnel Management; Ibalio v. . . . . . . . . . . . . . . . . . . 1138 Office of Personnel Management; Isla v. . . . . . . . . . . . . . . . . . . . . 1139 Office of Personnel Management; Magante v. . . . . . . . . . . . . . . . . 1140 Office of Personnel Management; Maglalang v. . . . . . . . . . . . . . . . 1140 Office of Personnel Management; Mauricio v. . . . . . . . . . . . . . . . . 1138 Office of Personnel Management; Mayo v. . . . . . . . . . . . . . . . . . . . 1140 Office of Personnel Management; Navarro v. . . . . . . . . . . . . . . . . 1140 Office of Personnel Management; Nelson v. . . . . . . . . . . . . . . . . . 1154 Office of Personnel Management; Nobles v. . . . . . . . . . . . . . . . . . 1138 Office of Personnel Management; Nuss v. . . . . . . . . . . . . . . . . . . . 1205 Office of Personnel Management; Paje v. . . . . . . . . . . . . . . . . . . . 1211 Office of Personnel Management; Palo v. . . . . . . . . . . . . . . . . . . . 1140 Office of Personnel Management; Pantilon v. . . . . . . . . . . . . . . . . 1138 Office of Personnel Management; Quiba v. . . . . . . . . . . . . . . . 1138,1251 Office of Personnel Management; Rabe v. . . . . . . . . . . . . . . . . 1139,1252 Office of Personnel Management; Reyes v. . . . . . . . . . . . . . . . . . . 1141 Office of Personnel Management; Sanchez v. . . . . . . . . . . . . . . . . . 1141 Office of Personnel Management; Sandoval v. . . . . . . . . . . . . . . . . 1211 Office of Personnel Management; Santos v. . . . . . . . . . . . . . . . 1141,1252 Office of Personnel Management; Siwa v. . . . . . . . . . . . . . . . . . . . 1138 Office of Personnel Management; Tillo v. . . . . . . . . . . . . . . . . . . . 1141 Office of Personnel Management; Young v. . . . . . . . . . . . . . . . . . 1190 Office of Queens County District Attorney; Bernard v. . . . . . . . . 1143 O'Gilvie v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102 Ohio; Bies v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Ohio; Burke v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Ohio; Christopher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Ohio; D'Ambrosio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Ohio; Garner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147,1230 Ohio; Gumm v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Ohio; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Ohio; Kinley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Ohio; Oden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Ohio; Phillips v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Ohio; Richey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Ohio v. Robinette . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1154,1242 Ohio Adult Parole Authority; Winters v. . . . . . . . . . . . . . . . . . . . 1123 Ohio Agricultural Commodity Depositors Fund v. Mahern . . . . . . 1130 Ohio Department of Development; Liggins v. . . . . . . . . . . . . . . . . 1148 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxxv Page Ohio Department of Rehabilitation and Correction; Popke v. . . . . 1224 Okayfor v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 O'Kicki, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117,1231 Oklahoma; Berget v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Oklahoma; Braun v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Oklahoma; Bryson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Oklahoma; Colbert v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Oklahoma; Cooper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 Oklahoma; Cotner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Oklahoma; Current v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Oklahoma; Hai Cong Pham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 Oklahoma; Hatch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Oklahoma; Hooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Oklahoma; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Oklahoma; Martinez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Oklahoma; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Oklahoma v. New York City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Oklahoma v. Ponca Tribe of Okla. . . . . . . . . . . . . . . . . . . . . . . . . . 1129 Oklahoma; Powell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Oklahoma; Shabazz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172,1196 Oklahoma City; Sawatzky v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Okolie v. Richardson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Olds v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184 Oleka v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Olenick v. New York Telephone . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Oliver v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Oliver v. Witkowski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Ollie v. Kuhn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Olsen v. Lane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158,1252 Olsen v. Sabal Marketing, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Oregon; Abbott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Oregon; Rise v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Oregon Lithoprint, Inc.; McLeod v. . . . . . . . . . . . . . . . . . . . . . . . 1116 Oregon Public Utility Comm'n v. GTE Northwest Inc. . . . . . . . . . 1155 Oregon State Bar; Altstatt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129 Oregon State Bar; Kowalski v. . . . . . . . . . . . . . . . . . . . . . . . . 1108,1230 Oregon State Prison; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Orlando; Hardy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1139,1252 Ornelas v. Myers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Ornelas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 690 Ortiz v. Department of Health and Human Services . . . . . . . . . . . 1136 Osborne v. First Federal Savings Bank . . . . . . . . . . . . . . . . . . . . 1237 Osherow; Cluck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Owens v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxxvi TABLE OF CASES REPORTED Page Owens v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Owensboro National Bank; Stephens v. . . . . . . . . . . . . . . . . . . . . 1119 Owens-Corning Fiberglas Corp. v. Brennan . . . . . . . . . . . . . . . . . 1243 Owens-Corning Fiberglas Corp. v. Dudley . . . . . . . . . . . . . . . . . . 1244 Owens-Corning Fiberglas Corp. v. Pickering . . . . . . . . . . . . . . . . 1243 Owens-Corning Fiberglas Corp. v. Rekdahl . . . . . . . . . . . . . . . . . 1243 Owner-Operator Independent Drivers Assn., Inc.; Eagerton v. . . 1121 Oxford v. Bowersox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124,1252 OXY USA Inc. v. Continental Trend Resources, Inc. . . . . . . . . . . 1216 Oyler v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 P. v. Carlisle Area School Dist. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135 Pace; Tedder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Pacheco-Rodriguez v. United States . . . . . . . . . . . . . . . . . . . . . . . 1113 Pacific Merchant Shipping Assn.; Veneman v. . . . . . . . . . . . . . . . . 1221 Padgett v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Padilla v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174 Padovano; Pearson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Pagan-San-Miguel v. United States . . . . . . . . . . . . . . . . . . . . . . . 1234 Page; Dedes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Page v. Texas Bd. of Pardons and Parole . . . . . . . . . . . . . . . . 1123,1240 Paje v. Office of Personnel Management . . . . . . . . . . . . . . . . . . . . 1211 Palacios v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Palmer Communications, Inc. v. Total TV . . . . . . . . . . . . . . . 1102,1152 Palmisano v. Bilandic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Palmisano v. Exec. Comm., U. S. Dist. Ct., N. Dist. of Ill. . . . . . . . 1223 Palo v. Office of Personnel Management . . . . . . . . . . . . . . . . . . . . 1140 Pandey v. Paul Revere Life Ins. Co. . . . . . . . . . . . . . . . . . . . . 1132,1251 Pantilon v. Office of Personnel Management . . . . . . . . . . . . . . . . . 1138 Parke; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1253 Parkhurst v. Shillinger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Parks v. Allstate Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Parsons; Shabazz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Paskvan; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Paster v. Tensas Basin Levee Dist. . . . . . . . . . . . . . . . . . . . . . . . 1195 Pataki; McReynolds v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Patent and Trademark Office; Schwarz v. . . . . . . . . . . . . . . . . . . . 1215 Pathology Laboratories of Ark.; Central States, S. E. & S. W. Areas Health and Welfare Fund v. . . . . . . . . . . . . . . . . . . . . . . 1233 Patin v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Patrick v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Patterson v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Paul Revere Life Ins. Co.; Pandey v. . . . . . . . . . . . . . . . . . . . 1132,1251 Pawtucket; Dyson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Pearson v. Padovano . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxxvii Page Pearson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113 Pedraza v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1162 Peeples v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1217 Peloquin v. United of Omaha Life Ins. Co. . . . . . . . . . . . . . . . . . . 1120 Pennsylvania; Bracey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Pennsylvania; Crawley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Pennsylvania; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Pennsylvania; Fried v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191 Pennsylvania; Graham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Pennsylvania; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Pennsylvania; Lee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Pennsylvania; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141,1252 Pennsylvania; Wharton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Pennsylvania Dept. of Corrections; Barbee v. . . . . . . . . . . . . . . . . 1226 Pennsylvania Dept. of Environmental Resources; Mock v. . . . . . . 1216 Pennsylvania Municipal Service Co.; Green v. . . . . . . . . . . . . . . . . 1222 Pennsylvania State Police, Bureau of Liquor Control Enforcement; Hospitality Investments of Philadelphia, Inc. v. . . . . . . . . . . . . 1206 Pennsylvania State Police, Bureau of Liquor Control Enforcement; Nighttime Concepts, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1206 Penson; Kelly v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Pepper v. Damer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 Perego v. King Instrument Corp. . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Perry v. Lewter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Petereit v. S. B. Thomas, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Petersen v. Government of Virgin Islands . . . . . . . . . . . . . . . . . . 1231 Petitte Brothers Mining Co. v. Connors . . . . . . . . . . . . . . . . . . . . 1189 Petkovich; Notheis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Pettee v. Minnesota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Pham v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 Philadelphia Park; Robert v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Philip Morris Inc. v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . 1220 Philip Morris Products, Inc.; Arvin-Thornton v. . . . . . . . . . . . . . . 1151 Phillips; McElrath v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165 Phillips v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Phillips v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Pic-A-State PA, Inc. v. Reno . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Pickering; Owens-Corning Fiberglas Corp. v. . . . . . . . . . . . . . . . . 1243 Pickering v. Unisys Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Pickering; Unisys Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Pickle v. Dutton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Pierce v. Iowa-Missouri Conference of Seventh-day Adventists . . 1220 Pillsbury Co. v. Port of Corpus Christi Authority . . . . . . . . . . . . 1203 Piloto v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxxviii TABLE OF CASES REPORTED Page Pincham, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 Pine; D'Amario v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Pinkerton Security Services; Hardy v. . . . . . . . . . . . . . . . . . . . . . 1161 Piper, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165 Pitsch v. Michigan Attorney Grievance Comm'n . . . . . . . . . . . . . . 1172 Pittman v. Chicago Bd. of Ed. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1243 Pittsburgh Police Dept.; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Pittston Co. v. Babbitt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Plaistow; New Hampshire Motor Transport v. . . . . . . . . . . . . . . . 1120 Planned Parenthood, Sioux Falls Clinic; Janklow v. . . . . . . . . . . . 1174 Plantier; Emery v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Platzer v. Barbour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Plenert; Bennett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102 Plott v. General Motors Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Plunk v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Plywood Panels, Inc.; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Poarch Band of Creek Indians v. Alabama . . . . . . . . . . . . . . . . . . 1133 Poarch Band of Creek Indians; Alabama v. . . . . . . . . . . . . . . . . . . 1133 Pollack, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 Polley v. Georgia State Bd. of Pardons and Paroles . . . . . . . . . . . 1107 Polur v. Grievance Committee for Southern Dist. of N. Y. . . . . . . 1196 Ponca Tribe of Okla.; Oklahoma v. . . . . . . . . . . . . . . . . . . . . . . . . 1129 Ponder v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Pope v. Hunt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899 Pope v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Popke v. Ohio Department of Rehabilitation and Correction . . . . 1224 Porter v. Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Port of Corpus Christi Authority; Pillsbury Co. v. . . . . . . . . . . . . 1203 Posner v. Central Synagogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Postmaster General; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Postmaster General; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Pourzandvakil v. Humphrey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Powell v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Powell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Powers v. Rockefeller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Powers; Rockefeller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Pozsgay v. Pozsgay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1242 Pratt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174 Praxair, Inc. v. Florida Power & Light Co. . . . . . . . . . . . . . . . . . . 1190 President Container, Inc. v. National Labor Relations Bd. . . . . . . 1243 President of U. S.; Califorrniaa v. . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Pressley v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Price v. Bossier Parish School Bd. . . . . . . . . . . . . . . . . . . . . . . . . 1232 Price v. McDade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 517rep123b 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxxix Page Price v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Price Co. v. Fecht . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Price-El v. Gee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Prieto v. Crawford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Prince George's County; Thomason v. . . . . . . . . . . . . . . . . . . . . . . 1189 Pringle v. Gillis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Pringle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Priore v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 Privett v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Pro-Choice Network of Western N. Y.; Schenck v. . . . . . . . . . . . . 1242 Procter & Gamble Co.; Bankers Trust Co. v. . . . . . . . . . . . . . . . . 1205 Production Plated Plastics, Inc. v. United States . . . . . . . . . . . . . 1133 Pruitt v. Howard County Sheriff's Dept. . . . . . . . . . . . . . . . . . . . 1235 Pryce v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Public Access Shoreline Haw.; Nansay Haw., Inc. v. . . . . . . . . . . . 1163 Public Utilities Comm'n of Cal.; Aaron v. . . . . . . . . . . . . . . . . . . . 1185 Pudlo v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Pulido v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Purefoy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Purkett; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Purkett; Woods v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Purnell; Smart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Quackenbush v. Allstate Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . 706 Quantum Chemical Corp.; Lehtinen v. . . . . . . . . . . . . . . . . . . . . . 1244 Quantum Corp.; Rodime PLC v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Queens College of City Univ. of N. Y.; Soffer v. . . . . . . . . . . . . . . 1245 Quiba v. Office of Personnel Management . . . . . . . . . . . . . . . . 1138,1251 Rabe v. Office of Personnel Management . . . . . . . . . . . . . . . . 1139,1252 Rader; Melancon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Radic v. Chicago Transit Authority . . . . . . . . . . . . . . . . . . . . . . . 1247 Ragan v. ContiCommodity Services, Inc. . . . . . . . . . . . . . . . . . . . 1104 Ram v. De Galan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 Rambo; Daley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Ramer v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Ramer v. Thomas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Ramey v. Ashland Oil, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109,1205 Ramos v. Bunnell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Ramos v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191 Randall, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207 Raney v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Rangel-Ibarra v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Rashi v. Conley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Ratliff v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1243 Rauser v. Beard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxxx TABLE OF CASES REPORTED Page Ray; Dolcefino v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Rayfield; Florida v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136 Ready, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 Red Lake Band of Chippewa Indians v. United States . . . . . . . . . 1208 Reed; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 Reed v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Reese v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1228 Reeves, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1186,1207 Regency; Janneh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Reich; Skepton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Reich; Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Reilly, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1218 Rekdahl; Owens-Corning Fiberglas Corp. v. . . . . . . . . . . . . . . . . . 1243 Reliford v. Hodges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Reliford v. Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Reliford v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Renelus v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174 Reno; Blackston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Reno v. Bossier Parish School Bd. . . . . . . . . . . . . . . . . . . . . . 1154,1232 Reno; Morrison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Reno; Nicholas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Reno; Pic-A-State PA, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Repsis; Crow Tribe of Indians v. . . . . . . . . . . . . . . . . . . . . . . . . . 1221 Republican Party of Va.; Morse v. . . . . . . . . . . . . . . . . . . . . . . . . 186 Resorts International, Inc.; Lowenschuss v. . . . . . . . . . . . . . . . . . 1243 Revere Life Ins. Co.; Pandey v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1251 Reyes v. Lugo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Reyes v. Office of Personnel Management . . . . . . . . . . . . . . . . . . 1141 Reynolds v. Vermont . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Reynolds Tobacco Co. v. Minnesota . . . . . . . . . . . . . . . . . . . . . . . 1222 Rhode Island; 44 Liquormart, Inc. v. . . . . . . . . . . . . . . . . . . . . . . 484 Rhode Island; Gallipeau v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Rhode Island; Jacques v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Rhodes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1164 Richards v. Jefferson County . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793 Richardson v. Citibank (S. D.), N. A. . . . . . . . . . . . . . . . . . . . . . . 1244 Richardson; Okolie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Richardson; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 Richey v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Richey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113 Rickles; Bishop v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Riggins v. Kasenow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Riggio v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Riker v. Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxxxi Page Rios v. Los Angeles County Dept. of Children and Family Servs. 1234 Rios v. New Hampshire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Rise v. Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Rivens v. Dunn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Rivera v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Rivera Mining Co.; Simpson v. . . . . . . . . . . . . . . . . . . . . . . . . 1109,1163 Riverdale Plating & Heat Treating Co.; Garcia v. . . . . . . . . . . . . . 1237 Rivers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 R. J. Reynolds Tobacco Co. v. Minnesota . . . . . . . . . . . . . . . . . . . 1222 Roach; Hines v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Roach; Mattison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Roach; Murray v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Roadway Express, Inc.; Dushaw v. . . . . . . . . . . . . . . . . . . . . . . . . 1120 Roane; Crawford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Roberson v. Suarez Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Robert v. Philadelphia Park . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Roberts v. Chater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Roberts v. Hanks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Roberts; Hentz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Robertson; Alsberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Robertson; Alsberg Brothers Boatworks v. . . . . . . . . . . . . . . . . . 1168 Robertson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1162 Robillard v. Baton Rouge Marine Contractors, Inc. . . . . . . . . . . . 1135 Robinette; Ohio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1154,1242 Robinson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152,1230 Robinson; Edmond v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Robinson v. Meloy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158,1230 Robinson; Norris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 Robinson v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Robinson v. Shell Oil Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1154 Robinson v. United States . . . . . . . . . . . . . . . . . . . . . . . 1149,1158,1220 Rockefeller v. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Rockefeller; Powers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1203 Rodenbaugh v. Leary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Rodime PLC v. Quantum Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Rodriguez; Caliendo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1231 Rodriguez v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123,1205 Rodriguez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112,1174 Rodriguez v. Wolf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Rodriguez de Castro v. United States . . . . . . . . . . . . . . . . . . . . . 1155 Rodriguez-Solel Botello v. United States . . . . . . . . . . . . . . . . . . . 1112 Rogers v. Desiderio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1164 Rogers v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Rogers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxxxii TABLE OF CASES REPORTED Page Roggy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Romer v. Evans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620 Romero v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Rosario v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Rose v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174 Roselin v. Board of Patent Appeals and Interferences . . . . . . . . . 1116 Rosen v. Iowa Bd. of Medical Examiners . . . . . . . . . . . . . . . . . . . 1104 Rosenberg v. Wachtler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120 Ross v. Nelthropp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Ross v. Norton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Ross v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Rourke v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Roussos v. Allstate Ins. Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Roussos v. Baxley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Roussos v. Felter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Roy, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132,1230 R. S. L. Layout & Design, Inc.; Smith v. . . . . . . . . . . . . . . . . . . . 1136 Rubin; Nguyen Huu To v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Ruiz-Mendoza v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Runyon; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Runyon; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Russell v. Federal Deposit Ins. Corp. . . . . . . . . . . . . . . . . . . . . . . 1166 Russell v. Norris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Ruth v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Rutherford County Schools; Neely v. . . . . . . . . . . . . . . . . . . . . . . 1134 Rutledge v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 Ruvalcaba v. Los Angeles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1216 Rye Psychiatric Hospital Center, Inc. v. Surles . . . . . . . . . . . . . . 1233 Saathoff v. Hesse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Sabal Marketing, Inc.; Olsen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Saccoccia v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 St. Agnes Medical Center; Menna's Estate v. . . . . . . . . . . . . . . . . 1165 St. Augustine Manor; Cully v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 St. Clair v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 St. Johns County; Cafe 207, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . 1156 St. Ledger v. Kentucky Revenue Cabinet . . . . . . . . . . . . . . . . . . 1206 St. Louis County v. Kornblum . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 St. Paul Mercury Ins. Co. v. B & D Mechanical Contractors, Inc. 1167 St. Peter Villa, Inc. v. Linton . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1155 Salazar v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Salazar v. Norton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Saldamarco v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Saleem v. NationsBanc Mortgage Corp. . . . . . . . . . . . . . . . . . . . . 1107 Sales v. Sparks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxxxiii Page Salzer v. Dellinger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Sampley; Indiana Dept. of Correction v. . . . . . . . . . . . . . . . . . . . 1220 San Antonio Independent School Dist.; DeLeon v. . . . . . . . . . . . . 1108 Sanborn v. Kentucky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Sanchez v. Office of Personnel Management . . . . . . . . . . . . . . . . . 1141 Sanchez v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1173,1214,1246 Sanders v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Sanders v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1147,1148,1238 San Diego County; Banks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 San Diego County; Klat v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130 Sandoval v. Office of Personnel Management . . . . . . . . . . . . . . . . 1211 San Francisco; Ziomek v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 San Francisco Bay Area Rapid Transit Dist.; Gilbert v. . . . . . . . . 1108 San Mateo County Youth and Family Services Division; Hill v. . . 1170 Santa Ana Unified School Dist.; Class of Gutierrez v. . . . . . . . . . . 1168 Santa Clara County; Jensen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Santana-Castellano v. United States . . . . . . . . . . . . . . . . . . . . . . . 1228 Santiago v. Snyder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Santos v. Office of Personnel Management . . . . . . . . . . . . . . . 1141,1252 Saraco v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Sarasota County; Bass v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Sartin v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125,1216 Saulsberry v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Saunders v. American Telephone & Telegraph Co. . . . . . . . . . . . . 1150 Saunders; Graves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Saunders v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Savage; Madden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Savell; Voigt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Sawatzky v. Oklahoma City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 S. B. Thomas, Inc.; Petereit v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Schake v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Schenck v. Pro-Choice Network of Western N. Y. . . . . . . . . . . . . . 1242 Schmoke; Anheuser-Busch, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . 1206 School Bd. of Norfolk; Morris v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Schotten; Billups v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Schouman, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165 Schriro; Harvey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Schroubroek; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Schulte v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 Schumer; Hughes Aircraft Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . 1218 Schusterman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Schutterle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Schwartz v. Aultman Health Services Assn. . . . . . . . . . . . . . . . . . 1132 Schwartz v. Aultman Hospital . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxxxiv TABLE OF CASES REPORTED Page Schwarz v. Patent and Trademark Office . . . . . . . . . . . . . . . . . . . 1215 Schwarz v. United States Fidelity & Guaranty Co. . . . . . . . . . . . . 1226 Schwarzchild; Tse v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Scott v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 Scott v. Minnesota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Scott v. Moyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Scott; Reliford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Scott v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114,1127 Scott; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 Scott v. U. S. District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Scott P. v. Carlisle Area School Dist. . . . . . . . . . . . . . . . . . . . . . . 1135 Seaman, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117,1231 SeaRiver Maritime, Inc. v. Exxon Seamen's Union . . . . . . . . . . . . 1251 Sears v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Sears, Roebuck & Co.; Hanus v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Sears, Roebuck & Co.; Woodbury v. . . . . . . . . . . . . . . . . . . . . . . . 1160 Secakuku v. Hale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Secretary of Agriculture; Clifford v. . . . . . . . . . . . . . . . . . . . . . . . 1132 Secretary of Agriculture v. Wileman Brothers & Elliott, Inc. . . . 1232 Secretary of Agriculture; Wileman Brothers & Elliott, Inc. v. . . . 1233 Secretary of Army; Watkis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Secretary of Commerce; Environmental Coalition of Ojai v. . . . . . 1245 Secretary of HUD; Cost Control Marketing & Sales Mgmt. of Va. v. 1187 Secretary of Interior; Alaska v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Secretary of Interior; Fort Sumter Tours, Inc. v. . . . . . . . . . . . . . 1220 Secretary of Interior; Pittston Co. v. . . . . . . . . . . . . . . . . . . . . . . 1134 Secretary of Interior v. Youpee . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 Secretary of Labor; Skepton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Secretary of Labor; Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Secretary of Navy; Brazil v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Secretary of Treasury; Nguyen Huu To v. . . . . . . . . . . . . . . . . . . 1235 Secretary of Veterans Affairs; Aronson v. . . . . . . . . . . . . . . . . . . 1209 Secretary of Veterans Affairs; Guzman Zayas v. . . . . . . . . . . . 1124,1205 Secretary of Veterans Affairs; Jardine v. . . . . . . . . . . . . . . . . . . . 1185 Secretary of Veterans Affairs; LeFevre v. . . . . . . . . . . . . . . . . . . 1188 Secretary of Veterans Affairs; Sudranski v. . . . . . . . . . . . . . . 1110,1205 Securities and Exchange Comm'n; Blount v. . . . . . . . . . . . . . . . . . 1119 Sedano v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Sedwick; Curiale v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Seehan v. Iowa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Seeley; Alabama v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Seikel, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117,1231 Sellers v. Boyd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Seminole Tribe of Fla. v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . 44 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxxxv Page Seminole Tribe of Fla.; Florida v. . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Sessions; Bogan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Sever v. Bell Communications Research . . . . . . . . . . . . . . . . . . . . 1223 Sever v. Bellcore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Sever v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Sevigny v. Maine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107,1158 Sewell v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Shabazz v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172,1196 Shabazz v. Parsons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Shabazz v. Unknown Heads of Clandestine Secret Bodies of Lexing- ton Correc. Ctr. Mail Room & Lit. Rev. Comm. Members . . . . . . 1236 Shade; Fabian v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Shaffer v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 Shafii v. British Airways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Shak v. Tanaka . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Sharif v. Welborn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Sharma; Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1234 Sharon; Tarabolski v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Sharp v. Cawley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Shavers v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Shaw v. Hunt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899 Shaw v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1211 Shay; Borawick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Shearson Lehman Brothers, Inc. v. Hughes, Hubbard & Reed . . . 1245 Shelby County Information Technology; Willis v. . . . . . . . . . . . . . 1104 Shelley School Dist.; Geery v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Shell Oil Co.; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1154 Shelstad v. West One Bank (Idaho) . . . . . . . . . . . . . . . . . . . . . . . 1156 Shelton v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125,1239 Shepherd; Missouri Pacific R. Co. v. . . . . . . . . . . . . . . . . . . . . . . . 1235 Sheppard v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Sheraton-Palace Hotel; Mukherjee v. . . . . . . . . . . . . . . . . . . . . . . 1237 Sheriff, Fulton County; Singer v. . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Sherman; Citibank (S. D.), N. A. v. . . . . . . . . . . . . . . . . . . . . . . . . 1241 Sherman v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 Sherrow v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Sherry v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Sherwin-Williams; Central States, S. E. & S. W. Areas Pens. Fd. v. 1190 Shieh v. Ebershoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132,1218 Shieh v. Hathaway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132,1218 Shieh v. Kakita . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343,1186 Shieh v. Krieger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343,1186 Shieh v. U. S. Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . 343,1186 Shillinger; Parkhurst v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxxxvi TABLE OF CASES REPORTED Page Shipman; Barcher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Shoffeitt v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Shorb v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Shores v. Foster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Shrader v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191 Siemens Power Corp.; Lindenmeier v. . . . . . . . . . . . . . . . . . . . . . 1221 Sikora v. Doe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163 Silks v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Silva v. Madison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Silverburg v. Ashley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Simmons; Mangrum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Simmons v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173,1199 Simon v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1138 Simone v. Worcester County Institution for Savings . . . . . . . . . . 1151 Simpson v. Childers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Simpson v. Cristino Rivera Mining Co. . . . . . . . . . . . . . . . . . . 1109,1163 Sims v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Singer v. Sheriff, Fulton County . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Singletary; Crabtree v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161,1240 Singletary; Dunn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Singletary; Koffiel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Singletary; Medina v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Singletary; Mills v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Singletary; Smiddy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107,1205 Singletary; Stano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Singleton; Bolt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Sinis v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Siqueros v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Sisk, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Siwa v. Office of Personnel Management . . . . . . . . . . . . . . . . . . . 1138 640 Broadway Renaissance Co. v. Eisner . . . . . . . . . . . . . . . . . . . 1155 Skepton v. Reich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Skupniewitz; Mack v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Slade v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Slaton v. Miller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Sledge v. Cummings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 S. L. J.; M. L. B. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1118,1185 Small v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Small Business Administration; Eames v. . . . . . . . . . . . . . . . . . . . 1210 Smart v. Purnell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Smiddy v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107,1205 Smiley v. Citibank (S. D.), N. A. . . . . . . . . . . . . . . . . . . . . 735,1118,1154 Smith; Broida v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Smith v. Glenolden Borough . . . . . . . . . . . . . . . . . . . . . . . . . . 1167,1251 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxxxvii Page Smith v. Hargett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Smith v. Herring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Smith v. Kuhlmann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1216 Smith v. McBride . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Smith v. New Hampshire Bd. of Licensure for Land Surveyors . . 1191 Smith v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1189 Smith v. Nuth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Smith v. Parke . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1253 Smith v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141,1252 Smith v. Pittsburgh Police Dept. . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Smith v. Richardson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 Smith v. R. S. L. Layout & Design, Inc. . . . . . . . . . . . . . . . . . . . . 1136 Smith v. Runyon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1188 Smith; Schulte v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1220 Smith v. United States . . . . . . . 1101,1112,1122,1148,1191,1199,1249,1250 Smith; Wallace v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 Smith & Nephew Dyonics, Inc. v. Violette . . . . . . . . . . . . . . . . . . 1167 Smithtown; SSC Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 Sneeden v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Snurkowski v. Angelone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Snyder; Claudio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Snyder; Santiago v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Soares v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191 Sobin v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Sofec, Inc.; Exxon Co., U. S. A. v. . . . . . . . . . . . . . . . . . . . . . . . . . 830 Soffer v. Queens College of City Univ. of N. Y. . . . . . . . . . . . . . . . 1245 Sokolow, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Soler-Somahano v. Immigration and Naturalization Service . . . . . 1144 Solventes y Quimica de Nicaragua, S. A. Solquimisa v. Weaver . . 1156 South Carolina; Holmes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 South Carolina Electric & Gas Co.; Griggs v. . . . . . . . . . . . . . . . . 1156 Southeastern Pa. Transportation Authority; Dykes v. . . . . . . . . . 1142 Southwest Media Corp.; Dolenz v. . . . . . . . . . . . . . . . . . . . . . 1134,1240 Spagnoulo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116 Sparks; Dwyer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Sparks; Sales v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Sparky's Waterfront Saloon, Inc. v. Cosmopolitan, Inc. . . . . . . . . . 1189 Spears; Hayes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 Spears v. State Bar of Ill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Spellman, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Spencer v. Spencer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Sperau; Ford Motor Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1217 Spink; Lockheed Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 882,1118 Spokane Tribe of Indians; Washington v. . . . . . . . . . . . . . . . . . . . 1129 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) lxxxviii TABLE OF CASES REPORTED Page Sprankle v. Sprankle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Spriggs v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112 Springer v. Bend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 Spychala v. Lewis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Square v. Morton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 SSC Corp. v. Smithtown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1150 Stainer; Contreras v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Stancil v. Moo & Oink, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Standing Bear v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Stanislaw v. Navajo County Bd. of Supervisors . . . . . . . . . . . . . . 1236 Stanley, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1206 Stanley v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Stano v. Singletary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Starbuck; Hernandez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Starks v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113 State. See also name of State. State Bar of Cal.; James v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 State Bar of Ill.; Spears v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 State Bar of Tex.; Levario v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1218 State Farm Automobile Ins. Co.; Barbee v. . . . . . . . . . . . . . . . . . 1160 State Farm Fire & Casualty Co.; Bolt v. . . . . . . . . . . . . . . . . . . . 1120 State Farm Fire & Casualty Ins. Co.; Wilson v. . . . . . . . . . . . . . . 1135 State Farm Ins. Co.; Bynum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Stearns-Miller v. Ault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Stearns-Miller v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 Stedman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Steeves v. Allen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Steeves v. Benson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Steinberg v. Bingham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134,1240 Steinberg v. Steinberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Stepard v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Stephen v. Hewitt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Stephens v. Cain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143,1205 Stephens v. Owensboro National Bank . . . . . . . . . . . . . . . . . . . . . 1119 Stern v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Steve Knight Steel Fabricators v. U. S. Fidelity & Guaranty Ins. 1134 Stevens v. Lincoln . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Stevens v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113 Stine v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Stitt v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Stone; Stramel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Stoorman v. Greenwood Trust Co. . . . . . . . . . . . . . . . . . . . . . . . . 1244 Stork Brabant B. V. v. D'Almeida . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Stramel v. Stone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED lxxxix Page Strickland v. Crowe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1223 Strowski v. Bank of America . . . . . . . . . . . . . . . . . . . . . . . . . 1106,1204 Struck v. Kennebec County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Strydom v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Stuart; Idaho v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1234 Suarez Corp.; Roberson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Sudranski v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110,1205 Suggs v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Sultan v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1141 Summers, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165 Sumpter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Superintendent of penal or correctional institution. See name or title of superintendent. Superior Court of Cal., San Luis Obispo County; Dale v. . . . . . . . 1224 Superior Court of Cal., Santa Clara County; Hanlin v. . . . . . . . . . 1121 Supreme Court of Cal.; Hurst v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Surface Transp. Bd.; National Assn., Reversionary Prop. Owners v. 1106 Surles; Rye Psychiatric Hospital Center, Inc. v. . . . . . . . . . . . . . . 1233 Sussman v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Suter; Jeffress v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Sutton v. Gibson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191 Swaim; Gurley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Swaim; Moltan Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Swano, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1165 Swartz v. Iowa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Sweat v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Sweeney; Apa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1229 Sweeney v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Swendra v. Woodford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Sykes v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Sylvania Shoe Mfg. Corp.; Knapp Shoes Inc. v. . . . . . . . . . . . . . . . 1245 Tafoya v. Zavaras . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Talbott v. C. R. Bard, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1230 Talley v. Flathead Valley Community College . . . . . . . . . . . . 1121,1216 Tam v. Continental Ins. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Tamakloe v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127,1205 Tamburello v. Comm-Tract Corp. . . . . . . . . . . . . . . . . . . . . . . . . . 1222 Tanaka; Shak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 Tanner, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184 Tarabolski v. Sharon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142 Target Sportswear, Inc. v. United States . . . . . . . . . . . . . . . . . . . 1208 Tate v. James . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Tate v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Tatum v. Columbia Natural Resources, Inc. . . . . . . . . . . . . . . . . . 1163 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) xc TABLE OF CASES REPORTED Page Tax Comm'r of Ohio; General Motors Corp. v. . . . . . . . . . . . . . . . 1118 Taylor, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1242 Taylor v. Cain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Taylor v. Cobb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Taylor v. Hanks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Taylor v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140 Taylor; Isaac v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1238 Taylor v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149,1222 Taylor; White v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Teague v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Teamsters v. National Labor Relations Bd. . . . . . . . . . . . . . . . . . 1133 Tedder v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 Tedder v. Pace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Tennessee; House v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Tennessee; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Tensas Basin Levee Dist.; Paster v. . . . . . . . . . . . . . . . . . . . . . . . 1195 Territory. See name of Territory. Terry v. Huffman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Terry v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1158 Texas; Baptiste v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 Texas; Bennett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109,1205 Texas; Campbell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140,1209 Texas; Casares v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124 Texas; Fuller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Texas; McFarland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Texas; Morrow v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Texas v. New Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 Texas; Oliver v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Texas; Owens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140 Texas; Patrick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 Texas Bd. of Pardons and Parole; Page v. . . . . . . . . . . . . . . . . 1123,1240 Tharp v. Iowa Dept. of Corrections . . . . . . . . . . . . . . . . . . . . . . . 1135 Tharpe v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Tho Dinh Tran v. Dinh Truong Tran . . . . . . . . . . . . . . . . . . . . . . 1133 Tho Dinh Tran; Dinh Truong Tran v. . . . . . . . . . . . . . . . . . . . . . . 1134 Thomas; Echols v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116 Thomas v. Evans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Thomas; Felker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Thomas; Litz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1135,1240 Thomas; Lonchar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314 Thomas; Moon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Thomas; Ramer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1145 Thomas v. United States . . . . . . . . . . . . . . . . . 1128,1162,1191,1229,1240 Thomas, Inc.; Petereit v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xci Page Thomason v. Prince George's County . . . . . . . . . . . . . . . . . . . . . . 1189 Thompson; Bartley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1210 Thompson; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Thompson; Fields v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 Thompson; Lucas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Thompson; McBride v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Thompson; McCormack v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1173 Thompson v. New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Thompson; Windelberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Thomson v. Harmony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105 Thornbrugh v. Brett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Tighe, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185 Tilli v. Van Antwerpen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Tillo v. Office of Personnel Management . . . . . . . . . . . . . . . . . . . . 1141 Tinsley, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Tinsley v. Methodist Hospital of Ind. . . . . . . . . . . . . . . . . . . . . . . 1146 To v. Rubin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Tobisch v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 Tokhtameshev v. American National Can Co. . . . . . . . . . . . . . . . . 1151 Toledo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114 Tootle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Total TV; Palmer Communications, Inc. v. . . . . . . . . . . . . . . . 1102,1152 Totemoff v. Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Tow-Motor Forklift Co.; Batts v. . . . . . . . . . . . . . . . . . . . . . . . . . 1221 Town. See name of town. Townzen v. El Dorado County . . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Tracey; General Motors Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1118 Tracy v. Chief of National Guard Bureau . . . . . . . . . . . . . . . . . . . 1214 Trahan v. Trahan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1155,1251 Tran v. Dinh Truong Tran . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Tran; Dinh Truong Tran v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Tran v. Tho Dinh Tran . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Tran; Tho Dinh Tran v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Treadway v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 Trentz, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102 Triestman v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1157 Trippet v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Trippett; Kissane v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Trivedi v. Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . 1110 Troni, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1206 Troni v. NYNEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1206 Truck Ins. Exchange; Melkonian v. . . . . . . . . . . . . . . . . . . . . . . . . 1151 Trueblood v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127 Truesdale v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1215 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) xcii TABLE OF CASES REPORTED Page Trujillo v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Truong Tran v. Tho Dinh Tran . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 Truong Tran; Tho Dinh Tran v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1133 Tse v. Schwarzschild . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121 Tubridy; Fort Peck Assiniboine and Sioux Tribes v. . . . . . . . . . . 1104 Tucker, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1207 Tucker v. Montgomery Ward Credit Corp. . . . . . . . . . . . . . . . . . . 1248 Tuggle; Netherland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1301 Turnbo; Coupar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Turner; McQueen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Turner; Ward v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Turner Broadcasting System, Inc. v. FCC . . . . . . . . . . . . . . . . . . 1218 Turpin; Felker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1182,1218 Turpin; Graham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Turpin v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106 25th Judicial Dist. Probation Dept.; Green v. . . . . . . . . . . . . . . . . 1240 Twin Cities Area New Party; McKenna v. . . . . . . . . . . . . . . . . . . 1219 Tyler v. Bowersox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Underwood v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Union. For labor union, see name of trade. Union Security Life Ins. Co. v. Crocker . . . . . . . . . . . . . . . . . . . . 1230 Unisys Corp. v. Pickering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Unisys Corp.; Pickering v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Unitarian-Universalist Society of Sacramento, Inc.; Burress v. . . . 1169 United Airlines, Inc.; Ellis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 United of Omaha Life Ins. Co.; Peloquin v. . . . . . . . . . . . . . . . . . . 1120 United Pentecostal Church International; Green v. . . . . . . . . 1134,1240 United States. See also name of other party. U. S. Congress; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 U. S. Court of Appeals; Arteaga v. . . . . . . . . . . . . . . . . . . . . . . . . 1204 U. S. Court of Appeals; Calvo v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 U. S. Court of Appeals; Free v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1144 U. S. Court of Appeals; Graves v. . . . . . . . . . . . . . . . . . . . . . . . . . 1124 U. S. Court of Appeals; Shieh v. . . . . . . . . . . . . . . . . . . . . . . . . 343,1186 U. S. District Court; Adams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 U. S. District Court; Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 U. S. District Judge; Curiale v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 U. S. District Judge; Thornbrugh v. . . . . . . . . . . . . . . . . . . . . . . . 1213 U. S. District Judge; Tilli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 United States Fidelity & Guaranty Co.; Schwarz v. . . . . . . . . . . . 1226 United States Fidelity & Guaranty Ins. Co.; Knight v. . . . . . . . . . 1134 United States Fidelity & Guaranty Ins. Co.; Steve Knight Steel Fabricators v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134 "United States Marshal Edmo"; Harvey v. . . . . . . . . . . . . . . . . . . 1145 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xciii Page U. S. Postal Service; Morata v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 United States Soccer Federation; Nava v. . . . . . . . . . . . . . . . . . . 1225 United States Surgical Corp. v. Ethicon, Inc. . . . . . . . . . . . . . . . . 1164 University of Houston v. Chavez . . . . . . . . . . . . . . . . . . . . . . . . . 1184 University of Houston; Chavez v. . . . . . . . . . . . . . . . . . . . . . . . . . 1187 University of N. M.; Moomchi v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1224 Unknown Heads of Clandestine Secret Bodies of Lexington Cor- rec. Ctr. Mail Room & Lit. Rev. Comm. Members; Shabazz v. . . 1236 Urban Homeowners' Corp. of New Orleans; Abrams v. . . . . . . . . 1165 Urena-Vasquez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Ursery; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1102,1153 USA Recycling, Inc. v. Babylon . . . . . . . . . . . . . . . . . . . . . . . . . . 1135 Usher v. Duncan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Usry v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 USX Corp.; American Premier Underwriters, Inc. v. . . . . . . . . . . 1221 Utah; Duell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Utah; Glasscock v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Utah State Tax Comm'n; Maryboy v. . . . . . . . . . . . . . . . . . . . . . . 1220 Uzowuru v. Williams Brothers Construction Co. . . . . . . . . . . . . . 1152 Vahosky v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Vallejo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 Van Antwerpen; Tilli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1227 Van Dyke; Mier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Van Oss; Hernandez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Vanyo v. Fargo Women's Health Organization, Inc. . . . . . . . . . . . 1168 Vargas v. Garner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Vargas v. Gunn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107,1230 Vasquez v. Hernandez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 Veneman v. Pacific Merchant Shipping Assn. . . . . . . . . . . . . . . . . 1221 Vera; Bush v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952 Vera; Lawson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952 Vera; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952 Verdugo v. California State Univ. at Los Angeles . . . . . . . . . . . . 1151 Vermont; Reynolds v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Vickaryous v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Viclo Realty Co.; Gaston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Victory Savings Bank; Dingle v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 Villabona-Garnica v. United States . . . . . . . . . . . . . . . . . . . . . . . . 1114 Village. See name of village. Vining Industries, Inc.; Libman Co. v. . . . . . . . . . . . . . . . . . . . . . 1234 Violette; Smith & Nephew Dyonics, Inc. v. . . . . . . . . . . . . . . . . . . 1167 Virginia; Al-Wahhab v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Virginia; Downs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Virginia; Fry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) xciv TABLE OF CASES REPORTED Page Virginia; Goodman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1147 Virginia; Hawes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 Virginia; Moore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200 Virginia; Sartin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125,1216 Virginia; Sheppard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Virginia; Wechsler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 Virginia Beach; Harris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Virginia Dept. of Taxation; Hyman v. . . . . . . . . . . . . . . . . . . . . . . 1128 Virgin Islands; Peterson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1231 Virta v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1199 Vista del Mar; Franklyn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169,1252 Voigt v. Savell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1209 V­1 Oil Co. v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208 V­1 Propane v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 1208 Votteler v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1230 Vrba v. Milton S. Katz & Associates . . . . . . . . . . . . . . . . . . . . . . . 1213 W. v. Margene L. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 Wachtler; Rosenberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120 Walden v. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 Walker v. Ames . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123 Walker v. Iowa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 Walker v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1250 Wall, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153 Wallace v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 Walls v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Walp v. Goodwin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1160 Walsh v. Ivkovich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 Walt Disney Co.; Bourne v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1240 Walt Disney Co.; Bourne Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1240 Wapnick v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1187 Ward; Brewer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1164 Ward v. Turner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152 Warden. See name of warden. Warden, Md. House of Correction; Nasim v. . . . . . . . . . . . . . . . . . 1163 Warmus v. Melahn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1241 Warner-Jenkinson Co. v. Hilton Davis Chemical Co. . . . . . . . . . . . 1218 Warren, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132 Warren v. Keane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Washington v. Glucksberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1241 Washington; Hadley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111 Washington; Harvey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Washington; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Washington; Lucien v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 Washington; Misch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1225 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xcv Page Washington v. Spokane Tribe of Indians . . . . . . . . . . . . . . . . . . . 1129 Washington v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Washington; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1233 Washington Suburban Sanitary Comm'n v. Westfarm Associates Ltd. Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Waterfront Comm'n of N. Y. Harbor; Carson v. . . . . . . . . . . . . . . 1210 Watkis v. West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Watson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Watts v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Waymer v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119,1216 Weaver; Solventes y Quimica de Nicaragua, S. A. Solquimisa v. . . 1156 Webb v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1244 Webb v. Fields . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1143 Weber v. Wood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Wechsler v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 Weinberg v. Management Co. Entertainment Group . . . . . . . . . . 1191 Weinig, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1242 Weitzman; Fraidin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Welborn; Nobles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Welborn; Sharif v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Welby; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1205 Wells, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130 Wells; Britt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Wells; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1154 Wells County; Chapa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Wener; Maydak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 Werner v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1119 Wesley v. Jenkins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1194 West v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1198 West; Watkis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Westfarm Associates Ltd. Partnership; Washington Suburban Sanitary Comm'n v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 Westland Development Co. v. Albuquerque . . . . . . . . . . . . . . . . . 1244 West One Bank (Idaho); Shelstad v. . . . . . . . . . . . . . . . . . . . . . . . 1156 Westview Instruments, Inc.; Markman v. . . . . . . . . . . . . . . . . . . . 370 Whalen; Castner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Wharton v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1247 Wheeler v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1193 Wheless; Youngs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184,1247 Wherehouse Entertainment, Inc. v. McMahan & Co. . . . . . . . . . . 1190 White; Faunce v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1212 White v. New York State Workers' Compensation Bd. . . . . . . . . . 1144 White v. Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1103 White v. Zimmers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) xcvi TABLE OF CASES REPORTED Page Whitmore v. Federal Election Comm'n . . . . . . . . . . . . . . . . . . . . . 1155 Whren v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806 Wichita Falls State Hospital; Brooks v. . . . . . . . . . . . . . . . . . . . . 1214 Wilburta T. Holden Living Trust v. Joint City-County Bd. of Tax Assessors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1167 Wileman Brothers & Elliott, Inc. v. Glickman . . . . . . . . . . . . . . . 1233 Wileman Brothers & Elliott, Inc.; Glickman v. . . . . . . . . . . . . . . . 1232 Williams, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1186 Williams v. Abbey Medical, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 1239 Williams v. Bowersox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129 Williams; Bowersox v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 Williams v. Calderon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1183 Williams v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Williams v. Love . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1192 Williams v. National Basketball Assn. . . . . . . . . . . . . . . . . . . . . . 1153 Williams v. United States . . . . . . . . . . . . . . . . . . . . 1148,1157,1228,1239 Williams v. Workers' Compensation Appeals Bd. . . . . . . . . . . . . . 1248 Williams Brothers Construction Co.; Uzowuru v. . . . . . . . . . . . . . 1152 Williamson; American Pioneer Life Ins. Co. v. . . . . . . . . . . . . . . . 1231 Willis v. Bell, Rosenberg & Hughes . . . . . . . . . . . . . . . . . . . . . . . 1193 Willis v. General Dynamics Corp. . . . . . . . . . . . . . . . . . . . . . . . . . 1104 Willis v. Georgia Dept. of Public Safety . . . . . . . . . . . . . . . . . . . . 1210 Willis v. Shelby County Information Technology . . . . . . . . . . . . . 1104 Wilson v. State Farm Fire & Casualty Ins. Co. . . . . . . . . . . . . . . 1135 Wilson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1246 Wilson v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1233 Windelberg v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Windle v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115 Winegarden; McCauley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149 Wingo v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116 Winstar Corp.; United States v. . . . . . . . . . . . . . . . . . . . . . . . 1118,1185 Winston & Strawn v. Hyatt Regency Phoenix Hotel Co. . . . . . . . 1234 Winter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 Winters v. Ohio Adult Parole Authority . . . . . . . . . . . . . . . . . . . . 1123 Wisconsin; Duquette v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Wisconsin v. New York City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Witkowski; Oliver v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107 Witt, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1185 Wodarski v. American Mfrs. Mut. Ins. Co. . . . . . . . . . . . . . . . . . . 1135 Wolf; Rodriguez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1204 Wolfberg v. Greenberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Wolfe v. Montana Dept. of Corrections and Human Services . . . . 1192 Wolff; Hosier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1197 Wonderly v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1146 517rep123c 01-05-99 17:52:23 PGT: TCRBV (Bound Volume) TABLE OF CASES REPORTED xcvii Page Wood; Weber v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Woodbury v. Sears, Roebuck & Co. . . . . . . . . . . . . . . . . . . . . . . . 1160 Woodford; Swendra v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Woods v. Purkett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110 Wootton v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Worcester County Dept. of Social Services; Newman v. . . . . . . . . 1136 Worcester County Institution for Savings; Simone v. . . . . . . . . . . 1151 Workers' Compensation Appeals Bd.; Williams v. . . . . . . . . . . . . . 1248 Wornum v. Massachusetts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1214 Worthey v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1235 Wright v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Wright v. Delaware . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1249 Wright v. Reich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1237 Wright v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1149,1163 Wyldes v. Hundley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1172 Wynn v. AC Rochester . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Yarnell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201 Yates v. Godwin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159,1230 Ybarra v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1174 Yeoman v. Dilley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1196 Yildirim v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1162 Youell; Exxon Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1251 Young v. Culver City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 Young v. Harper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219 Young v. Office of Personnel Management . . . . . . . . . . . . . . . . . . 1190 Youngs v. Wheless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1184,1247 Youpee; Babbitt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232 Zankich v. Allen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1159 Zapata, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1132 Zavaras; Tafoya v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1195 Zayas v. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124,1205 Zhadanov v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169 Zilich v. Mazurkiewicz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1248 Zimmers; White v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 Ziomek v. San Francisco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Zolt v. Bingham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1134,1230 Zzie v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113 517us1$35z 02-23-99 16:33:32 PAGES OPINPGT CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1995 WISCONSIN v. CITY OF NEW YORK et al. certiorari to the united states court of appeals for the second circuit No. 94­1614. Argued January 10, 1996-Decided March 20, 1996* The Constitution's Census Clause vests Congress with the responsibility to conduct an "actual Enumeration" of the American public every 10 years, with the primary purpose of providing a basis for apportioning congressional representation among the States. That responsibility has been delegated to the Secretary of Commerce, who determined that an "actual Enumeration" would best be achieved in the 1990 census by not using a postenumeration survey (PES) statistical adjustment de- signed to correct an undercount in the initial enumeration. In this action brought by several of the respondents and others, the District Court concluded that the Secretary's decision not to statistically adjust the census violated neither the Constitution nor federal law. In revers- ing and remanding, the Court of Appeals looked to a line of precedent involving judicial review of intrastate districting decisions, see Wes- berry v. Sanders, 376 U. S. 1, and its progeny, and held, inter alia, that a heightened standard of review was required here because the Secre- tary's decision impacted the fundamental right to have one's vote counted and had a disproportionate impact upon certain identifiable minority racial groups. *Together with No. 94­1631, Oklahoma v. City of New York et al., and No. 94­1985, Department of Commerce et al. v. City of New York et al., also on certiorari to the same court. 1 517us1$35z 02-23-99 16:33:32 PAGES OPINPGT 2 WISCONSIN v. CITY OF NEW YORK Syllabus Held: Because it was reasonable to conclude that an "actual Enumeration" could best be achieved in the 1990 census without the PES-based statis- tical adjustment, the Secretary's decision not to use that adjustment was well within the constitutional bounds of discretion over the conduct of the census that is provided to the Federal Government. Pp. 13­24. (a) The Secretary's decision was not subject to heightened scrutiny. In two recent decisions, Department of Commerce v. Montana, 503 U. S. 442, and Franklin v. Massachusetts, 505 U. S. 788, this Court rejected the application of Wesberry's "one person-one vote" standard to Con- gress, concluding that the Constitution vests Congress with wide discre- tion over apportionment decisions and the conduct of the census, and that the appropriate standard of review examines a congressional deci- sion to determine whether it is "consistent with the constitutional lan- guage and the constitutional goal of equal representation," see Frank- lin, supra, at 804. Rather than the strict scrutiny standard applied in Wesberry and adopted by the Court of Appeals, the standard estab- lished in Montana and Franklin applies to the Secretary's decision here. The Constitution's text vests Congress with virtually unlimited discretion in conducting the "actual Enumeration," see Art. I, § 2, cl. 3 (Congress may conduct the census "in such Manner as they shall by Law direct"), and there is no basis for thinking that such discretion is more limited than that text provides. Through the Census Act, 13 U. S. C. § 141(a), Congress has delegated its broad authority over the census to the Secretary. Hence, so long as the Secretary's conduct of the census is "consistent with the constitutional language and the consti- tutional goal of equal representation," it is within the Constitution's limits. Pp. 13­20. (b) The Secretary's decision conformed to applicable constitutional and statutory provisions. In light of the Constitution's broad grant of au- thority to Congress, that decision need bear only a reasonable relation- ship to the accomplishment of an actual enumeration of the population, keeping in mind the census' constitutional purpose of apportioning congressional representation. The Secretary based the decision upon three determinations, each of which is well within the bounds of his constitutional discretion. First, he held that in light of the constitu- tional purpose, the census' distributive accuracy-i. e., getting most nearly correct the proportions of people in different areas-was more important than its numerical accuracy. A preference for distributive accuracy (even at the expense of some numerical accuracy) is not incon- sistent with the constitutional need to determine the apportionment of the Representatives among the States. Second, the Secretary's deter- mination that the unadjusted census data should be considered the most distributively accurate absent a showing to the contrary was based on 517us1$35z 02-23-99 16:33:32 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 3 Syllabus his well-founded understanding of historical census practice and experi- ence, an important consideration in this context. See, e. g., Montana, supra, at 465. Respondents misplace their reliance on statistical ad- justments that were used in the 1970 and 1980 censuses, since those adjustments were of an entirely different type than the one at issue and took place on a dramatically smaller scale, and since a PES-based adjustment would have been the first time in history that the States' apportionment was based upon counts in other States. Third, respond- ents' contention that this Court should review de novo the Secretary's conclusions on this point fundamentally misapprehends the basis for def- erence to his determination, which arises not from the highly technical nature of his decision, but from the wide discretion bestowed by the Constitution upon Congress, and by Congress upon him. The Secre- tary's conclusion that the PES-based adjustment would not improve dis- tributive accuracy, which was based on his review of extensive research and the recommendations of some of his advisers, was a reasonable choice in an area where technical experts disagree. Pp. 20­24. 34 F. 3d 1114, reversed. Rehnquist, C. J., delivered the opinion for a unanimous Court. Solicitor General Days argued the cause for the federal petitioners. With him on the briefs were Assistant Attor- ney General Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Mark B. Stern. James E. Doyle, Attorney General of Wisconsin, argued the cause for peti- tioners in No. 94­1614 and No. 94­1631. With him on the brief for petitioner in No. 94­1614 was Peter C. Anderson, Assistant Attorney General. Don G. Holladay and Shelia D. Tims filed briefs for petitioner in No. 94­1631. Robert S. Rifkind argued the cause for respondents in all cases. With him on the brief were Paul A. Crotty, Lorna B. Goodman, Peter L. Zimroth, Dennis C. Vacco, Attorney General of New York, Victoria Graffeo, Solicitor General, Barbara Billet, Deputy Solicitor General, and Lula Ander- son, Assistant Attorney General, James K. Hahn, Susan S. Sher, Benna Ruth Solomon, Robert A. Ginsburg, Helen M. Gros, Dennis Hayes, Frank Shafroth, Dan Morales, Attor- ney General of Texas, and Javier P. Guajardo, Special As- sistant Attorney General, Robert A. Butterworth, Attorney 517us1$35z 02-23-99 16:33:32 PAGES OPINPGT 4 WISCONSIN v. CITY OF NEW YORK Opinion of the Court General of Florida, and George L. Waas, Assistant Attorney General, Deborah T. Poritz, Attorney General of New Jersey, and Michael S. Bokar, Senior Deputy Attorney General, Grant Woods, Attorney General of Arizona, and Robert Carey, First Assistant Attorney General, Tom Udall, At- torney General of New Mexico, and Christopher D. Coppin, Assistant Attorney General, Ada Treiger, John J. Copelan, Jr., Louise Renne, Burk E. Delventhal, Stan M. Sharoff, T. Michael Mather, John P. Frank, Avis M. Russell, Nicholas Rodriguez, Robert Cohen, Michael W. L. McCrory, George Rios, Burton H. Levin, Pastel Vann, Assistant Corporation Counsel for the District of Columbia, and Kendrick Smith. Chief Justice Rehnquist delivered the opinion of the Court. In conducting the 1990 United States Census, the Secre- tary of Commerce decided not to use a particular statistical adjustment that had been designed to correct an undercount in the initial enumeration. The Court of Appeals for the Second Circuit held that the Secretary's decision was subject to heightened scrutiny because of its effect on the right of individual respondents to have their vote counted equally. We hold that the Secretary's decision was not subject to heightened scrutiny, and that it conformed to applicable constitutional and statutory provisions. Briefs of amici curiae urging reversal were filed for the Common- wealth of Pennsylvania by Thomas W. Corbett, Jr., Attorney General, and John G. Knorr III, Chief Deputy Attorney General; and for United States Senator Herb Kohl et al. by Brady C. Williamson. Briefs of amici curiae urging affirmance were filed for the City of De- troit by Linda D. Fegins; and for the Lawyers' Committee for Civil Rights Under Law et al. by Jonathan L. Greenblatt, Paul C. Saunders, Herbert J. Hansell, Norman Redlich, Barbara R. Arnwine, Thomas J. Hender- son, Christopher A. Hansen, Steven R. Shapiro, Samuel Rabinove, Elaine R. Jones, Theodore M. Shaw, Charles Stephen Ralston, and Arthur N. Eisenberg. 517us1$35H 02-23-99 16:33:32 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 5 Opinion of the Court I The Constitution requires an "actual Enumeration" of the population every 10 years and vests Congress with the au- thority to conduct that census "in such Manner as they shall by Law direct." 1 Art. I, § 2, cl. 3. Through the Census Act, 13 U. S. C. § 1 et seq., Congress has delegated to the Secre- tary of the Department of Commerce the responsibility to take "a decennial census of [the] population . . . in such form and content as he may determine . . . ." § 141(a). The Sec- retary is assisted in the performance of that responsibility by the Bureau of the Census and its head, the Director of the Census. See § 2; § 21 ("[The] Director shall perform such duties as may be imposed upon him by law, regulations, or orders of the Secretary"). The Constitution provides that the results of the census shall be used to apportion the Members of the House of Rep- resentatives among the States. See Art. I, § 2, cl. 3 ("Repre- sentatives . . . shall be apportioned among the several States . . . according to their respective Numbers . . ."); Amdt. 14, § 2 ("Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State . . ."). Because the Constitution provides that the number of Representatives apportioned to each State determines in part the allocation to each State of votes for the election of the President, the decennial census also affects the allocation of members of the electoral college. See Art. II, § 1, cl. 2 ("Each State shall appoint . . . a Number of Electors, equal to the whole Num- ber of Senators and Representatives to which the State may be entitled in the Congress . . ."). Today, census data also have important consequences not delineated in the Consti- tution: The Federal Government considers census data in 1 The Census Clause provides in full: "The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." Art. I, § 2, cl. 3. 517us1$35H 02-23-99 16:33:32 PAGES OPINPGT 6 WISCONSIN v. CITY OF NEW YORK Opinion of the Court dispensing funds through federal programs to the States, and the States use the results in drawing intrastate political districts. There have been 20 decennial censuses in the history of the United States. Although each was designed with the goal of accomplishing an "actual Enumeration" of the popula- tion, no census is recognized as having been wholly success- ful in achieving that goal.2 Cf. Karcher v. Daggett, 462 U. S. 725, 732 (1983) (recognizing that "census data are not per- fect," and that "population counts for particular localities are outdated long before they are completed"); Gaffney v. Cum- mings, 412 U. S. 735, 745 (1973) (census data "are inherently less than absolutely accurate"). Despite consistent efforts to improve the quality of the count, errors persist. Persons who should have been counted are not counted at all or are counted at the wrong location; persons who should not have been counted (whether because they died before or were born after the decennial census date, because they were not a resident of the country, or because they did not exist) are counted; and persons who should have been counted only once are counted twice. It is thought that these errors have resulted in a net "undercount" of the actual American popu- lation in every decennial census. In 1970, for instance, the Census Bureau concluded that the census results were 2.7% lower than the actual population.3 Brief for Respondents 12. 2 Indeed, even the first census did not escape criticism. Thomas Jeffer- son, who oversaw the conduct of that census in 1790 as Secretary of State, was confident that it had significantly undercounted the young Nation's population. See C. Wright, History and Growth of the United States Census 16­17 (1900). 3 One might wonder how the Census Bureau is able to determine whether there is an undercount and its size. Specifically: Against what standard are the census results measured? After all, if the actual popu- lation of the United States is known, then the conduct of the census would seem wholly redundant. For the most part, we are told, the size of the error in a particular census is determined by comparing the census results not with some defi- 517us1$35H 02-23-99 16:33:32 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 7 Opinion of the Court The undercount is not thought to be spread consistently across the population: Some segments of the population are "undercounted" to a greater degree than are others, result- ing in a phenomenon termed the "differential undercount." Since at least 1940, the Census Bureau has thought that the undercount affects some racial and ethnic minority groups to a greater extent than it does whites. In 1940, for example, when the undercount for the entire population was 5.4%, the undercount for blacks was estimated at 8.4% (and the under- count for whites at 5.0%). Ibid. The problem of the differ- ential undercount has persisted even as the census has come to provide a more numerically accurate count of the popula- tion. In the 1980 census, for example, the overall under- count was estimated at 1.2%, and the undercount of blacks was estimated at 4.9%. Ibid. The Census Bureau has recognized the undercount and the differential undercount as significant problems, and in the past has devoted substantial effort toward achieving their reduction. Most recently, in its preparations for the 1990 census, the Bureau initiated an extensive inquiry into vari- ous means of overcoming the impact of the undercount and the differential undercount. As part of this effort, the Bu- reau created two task forces: the Undercount Steering Com- mittee, responsible for planning undercount research and pol- icy development; and the Undercount Research Staff (URS), which conducted research into various methods of improving the accuracy of the census. In addition, the Bureau con- sulted with state and local governments and various outside experts and organizations. Largely as a result of these efforts, the Bureau adopted a wide variety of measures designed to reduce the rate of nite and established measure of the population, but rather with estimates of the population developed from demographic data. See App. to Pet. for Cert. in No. 94­1614, pp. 158a­168a, 366a­369a (hereinafter Pet. App.). A similar procedure traditionally has been used to determine the size and makeup of the differential undercount, see infra, at 9­10. 517us1$35H 02-23-99 16:33:32 PAGES OPINPGT 8 WISCONSIN v. CITY OF NEW YORK Opinion of the Court error in the 1990 enumeration, including an extensive ad- vertising campaign, a more easily completed census ques- tionnaire, and increased use of automation, which among other things facilitated the development of accurate maps and geographic files for the 1990 census. Pet. App. 321a­ 322a.4 The Bureau also implemented a number of improve- ments specifically targeted at eliminating the differential undercount; these included advertising campaigns developed by and directed at traditionally undercounted populations and expanded questionnaire assistance operations for non- English speaking residents. Ibid. In preparing for the 1990 census, the Bureau and the task forces also looked into the possibility of using large-scale statistical adjustment to compensate for the undercount and differential undercount. Although the Bureau had pre- viously considered that possibility (most recently in 1980), it always had decided instead to rely upon more traditional methodology and the results of the enumeration. See Cuomo v. Baldrige, 674 F. Supp. 1089 (SDNY 1987) (noting that Bureau rejected large-scale statistical adjustment of the 1980 census). In 1985, preliminary investigations by the URS suggested that the most promising method of statistical adjustment was the "capture-recapture" or "dual system estimation" (DSE) approach. The particular variations of the DSE considered by the Bureau are not important for purposes of this opinion, but an example may serve to make the DSE more understandable. Imagine that one wanted to use DSE in order to determine the number of pumpkins in a large pumpkin patch. First, one would choose a particular section of the patch as the representative subset to which the "recapture" phase will be applied. Let us assume here that it is a section exactly one-tenth the size of the entire patch that is selected. Then, 4 All references to Pet. App. are to the appendix to the petition for certiorari in No. 94­1614 unless otherwise noted. 517us1$35H 02-23-99 16:33:32 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 9 Opinion of the Court at the next step-the "capture" stage-one would conduct a fairly quick count of the entire patch, making sure to record both the number of pumpkins counted in the entire patch and the number of pumpkins counted in the selected section. Let us imagine that this stage results in a count of 10,000 pumpkins for the entire patch and 1,000 pumpkins for the selected section. Next, at the "recapture" stage, one would perform an exacting count of the number of pumpkins in the selected section. Let us assume that we now count 1,100 pumpkins in that section. By comparing the results of the "capture" phase and the results of the "recapture" phase for the selected section, it is possible to estimate that approxi- mately 100 pumpkins actually in the patch were missed for every 1,000 counted at the "capture" phase. Extrapolating this data to the count for the entire patch, one would con- clude that the actual number of pumpkins in the patch is 11,000. In the context of the census, the initial enumeration of the entire population (the "capture") would be followed by the postenumeration survey (PES) (the "recapture") of certain representative geographical areas. The Bureau would then compare the results of the PES to the results of the initial enumeration for those areas targeted by the PES, in order to determine a rate of error in those areas for the initial enumeration (i. e., the rate at which the initial enumeration undercounted people in those areas). That rate of error would be extrapolated to the entire population, and thus would be used to statistically adjust the results of the ini- tial enumeration. The URS thought that the PES also held some promise for correcting the differential undercount. The PES would be conducted through the use of a system called post- stratification. Thus, each person counted through the PES would be placed into one, and only one, of over 1,000 post- strata defined by five categories: geography; age; sex; status 517us1$35H 02-23-99 16:33:32 PAGES OPINPGT 10 WISCONSIN v. CITY OF NEW YORK Opinion of the Court of housing unit (rent versus own); and race (including His- panic versus non-Hispanic origin).5 By comparing the post- stratified PES data to the results of the initial enumeration, the Bureau would be able to estimate not only an overall undercount rate, but also an undercount rate for each post- strata. Hence, the statistical adjustment of the census could reflect differences in the undercount rate for each poststrata. Through the mid-1980's, the Bureau conducted a series of field tests and statistical studies designed to measure the utility of the PES as a tool for adjusting the census. The Director of the Bureau decided to adopt a PES-based adjust- ment, and in June 1987, he informed his superiors in the De- partment of Commerce of that decision. The Secretary of Commerce disagreed with the Director's decision to adjust, however, and in October 1987, the Department of Commerce announced that the 1990 census would not be statistically adjusted. In November 1988, several plaintiffs (including a number of the respondents in this action) brought suit in the United States District Court for the Eastern District of New York, arguing that the Secretary's decision against statistical ad- justment of the 1990 census was unconstitutional and con- trary to federal law. The parties entered into an interim stipulation providing, inter alia, that the Secretary would reconsider the possibility of a statistical adjustment. In July 1991, the Secretary issued his decision not to use the PES to adjust the 1990 census. Pet. App. 135a­415a. The Secretary began by noting that large-scale statistical 5 Examples of poststrata actually used include: female blacks between the ages of 20 and 29 who owned a home in either Detroit or Chicago; nonblack non-Hispanic females, aged 45­64, living in owned or rented housing in a nonmetropolitan area with a population of 10,000 or more in Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, or Wyo- ming; and male Asians or Pacific Islanders, aged 65 or above, renting a home in either the Los Angeles-Long Beach area or another central city in a metropolitan area in Alaska, California, Hawaii, Oregon, or Washington. 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 11 Opinion of the Court adjustment of the census through the PES would "abandon a two hundred year tradition of how we actually count people." Id., at 138a. Before taking a "step of that magnitude," he held, it was necessary to be "certain that it would make the census better and the distribution of the population more accurate." Ibid. Emphasizing that the primary purpose of the census was to apportion political representation among the States, the Secretary concluded that "the primary crite- rion for accuracy should be distributive accuracy-that is, getting most nearly correct the proportions of people in dif- ferent areas." Id., at 146a­147a. After reviewing the recommendations of his advisers and the voluminous statistical research that had been compiled, the Secretary concluded that although numerical accuracy (at the national level) might be improved through statistical adjustment, he could not be confident that the distributive accuracy of the census-particularly at the state and local level-would be improved by a PES-based adjustment.6 Id., at 140a­141a, 200a­201a. In particular, the Secretary noted, the adjusted figures became increasingly unreliable as one focused upon smaller and smaller political subdivisions. Id., at 142a. The Secretary stated that his decision not to adjust was buttressed by a concern that adjustment of the 1990 census might present significant problems in the future. Id., at 143a. Because small changes in adjustment methodology would have a large impact upon apportionment-an impact that could be determined before a particular methodology was chosen-the Secretary found that statistical adjustment 6 The distinction between distributive and numerical accuracy becomes clear with an example. Imagine that the Bureau somehow were able to determine definitely that the census had failed to count exactly 10 million people nationwide. If those 10 million "persons" were added to the Na- tion's total population, and all 10 million were allocated to one particular State, then the numerical accuracy of the census would be improved, but the distributive accuracy would almost certainly be significantly impaired. 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT 12 WISCONSIN v. CITY OF NEW YORK Opinion of the Court of the 1990 census might open the door to political tampering in the future. The Secretary also noted that statistical ad- justment might diminish the incentive for state and local po- litical leaders to assist in the conduct of the initial enumera- tion. See id., at 143a­144a. In conclusion, the Secretary stated that the Bureau would continue its research into the possibility of statistical adjustment of future censuses, and would maintain its efforts to improve the accuracy and inclu- siveness of the initial enumeration. Id., at 145a. The plaintiffs returned to court. The District Court con- cluded that the Secretary's decision violated neither the Con- stitution nor federal law. See New York v. United States Dept. of Commerce, 822 F. Supp. 906 (EDNY 1993). Respondents appealed, arguing that the District Court had adopted the wrong standard of review for their constitu- tional claim,7 and the Court of Appeals for the Second Circuit reversed by a divided vote. 34 F. 3d 1114 (1994); Pet. App. 1a­40a. The majority looked to a line of precedent involv- ing judicial review of intrastate districting decisions, see, e. g., Karcher v. Daggett, 462 U. S. 725 (1983); Wesberry v. Sanders, 376 U. S. 1 (1964), and found that a heightened standard of review was required here both because the Sec- retary's decision impacted a fundamental right, viz., the right to have one's vote counted, and because the decision had a disproportionate impact upon certain identifiable mi- nority racial groups. 34 F. 3d, at 1128. The court then held that the plaintiffs had shown that the Secretary had failed to make a good-faith effort to achieve equal districts as nearly as possible, id., at 1130, and therefore that the defend- ants must bear the burden of proving that population devia- tions were necessary to achieve some legitimate state goal, id., at 1131. The court remanded for an inquiry into whether the Secretary could show that the decision not to 7 Respondents did not appeal the District Court's treatment of their statutory claims. 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 13 Opinion of the Court adjust was essential for the achievement of a legitimate governmental objective. Ibid. The dissenting judge stated that he would have affirmed based upon the decision of the District Court. See ibid. He also noted that the majority's decision created a conflict with two other decisions of the Courts of Appeals. See De- troit v. Franklin, 4 F. 3d 1367 (CA6 1993), and Tucker v. United States Dept. of Commerce, 958 F. 2d 1411 (CA7 1992). Wisconsin, Oklahoma, and the United States each filed a petition for certiorari. We granted those petitions, and consolidated them for argument. 515 U. S. 1190 (1995). We now reverse. II In recent years, we have twice considered constitutional challenges to the conduct of the census. In Department of Commerce v. Montana, 503 U. S. 442 (1992), the State of Montana, several state officials, and Montana's Members of Congress brought suit against the Federal Government, challenging as unconstitutional the method used to deter- mine the number of Representatives to which each State is entitled. A majority of a three-judge District Court looked to the principle of equal representation for equal numbers of people that was applied to intrastate districting in Wesberry v. Sanders, supra, and held it applicable to congressional ap- portionment of seats among the States. Noting a significant variance between the population of Montana's single district and the population of the "ideal district," the court found that Congress' chosen method of apportionment violated the principle of Wesberry, and therefore voided the federal stat- ute providing the method of apportionment. In a unanimous decision, this Court reversed. We began by revisiting Wesberry, a case in which the Court held uncon- stitutional wide disparities in the population of congressional districts drawn by the State of Georgia. Montana, supra, at 459­460. We recognized that the principle of Wesberry- " `equal representation for equal numbers of people' "-had 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT 14 WISCONSIN v. CITY OF NEW YORK Opinion of the Court evolved though a line of cases into a strictly enforced re- quirement that a State " `make a good-faith effort to achieve precise mathematical equality' " among the populations of congressional districts. See Montana, supra, at 460, quot- ing Kirkpatrick v. Preisler, 394 U. S. 526, 530­531 (1969) (disparities between congressional districts in Missouri held unconstitutional); see also Karcher v. Daggett, supra (1% dis- parity between population of New Jersey districts held un- constitutional). Returning to Montana's challenge to Con- gress' apportionment decision, we noted that the Wesberry line of cases all involved intrastate disparities in the popu- lation of voting districts that had resulted from a State's redistricting decisions, whereas Montana had challenged in- terstate disparities resulting from the actions of Congress. Montana, supra, at 460. We found this difference to be significant beyond the sim- ple fact that Congress was due more deference than the States in this area. Wesberry required a State to make "a good-faith effort to achieve precise mathematical equality" in the size of voting districts. Kirkpatrick, supra, at 530­531. While this standard could be applied easily to intrastate dis- tricting because there was no "theoretical incompatibility en- tailed in minimizing both the absolute and the relative differ- ences" in the sizes of particular voting districts, we observed that it was not so easily applied to interstate districting deci- sions where there was a direct tradeoff between absolute and relative differences in size. Montana, supra, at 461­462. Finding that Montana demanded that we choose between several measures of inequality in order to hold the Wesberry standard applicable to congressional apportionment deci- sions, we concluded that "[n]either mathematical analysis nor constitutional interpretation provide[d] a conclusive answer" upon which to base that choice. Montana, supra, at 463. We further found that the Constitution itself, by guaran- teeing a minimum of one representative for each State, made it virtually impossible in interstate apportionment to achieve 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 15 Opinion of the Court the standard imposed by Wesberry. Montana, supra, at 463. In conclusion, we recognized the historical pedigree of the challenged method of apportionment, and reemphasized that Congress' "good-faith choice of a method of apportion- ment of Representatives among the several States `according to their respective Numbers' commands far more deference than a state districting decision that is capable of being reviewed under a relatively rigid mathematical standard." Montana, supra, at 464. In Franklin v. Massachusetts, 505 U. S. 788 (1992), we re- iterated our conclusion that the Constitution vests Congress with wide discretion over apportionment decisions and the conduct of the census. In Franklin, the State of Massachu- setts and two of its registered voters sued the Federal Gov- ernment, arguing that the method used by the Secretary to count federal employees serving overseas was (among other things) unconstitutional. Restating the standard of review established by Montana, we examined the Secretary's deci- sion in order to determine whether it was "consistent with the constitutional language and the constitutional goal of equal representation." See Franklin, supra, at 804; Mon- tana, supra, at 459. After a review of the historical practice in the area, we found that the plaintiffs had not met their burden of proving that a decision contrary to that made by the Secretary would "make representation . . . more equal." Franklin, 505 U. S., at 806. Concluding that the Secretary's decision reflected a "judgment, consonant with, though not dictated by, the text and history of the Constitution . . . ," we held the Secretary's decision to be well within the con- stitutional limits on his discretion. Ibid. In its decision in this action, the Court of Appeals found that a standard more strict than that established in Montana and Franklin should apply to the Secretary's decision not to statistically adjust the census. The court looked to equal protection principles distilled from the same line of state re- districting cases relied upon by the plaintiffs in Montana, 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT 16 WISCONSIN v. CITY OF NEW YORK Opinion of the Court and found that both the nature of the right asserted by re- spondents-the right to have one's vote counted equally- and the nature of the affected classes-"certain identifiable minority groups"-required that the Secretary's decision be given heightened scrutiny. 34 F. 3d, at 1128. The court drew from the District Court's decision "implicit" findings: that the census did not achieve equality of voting power as nearly as practicable; "that for most purposes and for most of the population [the PES-based] adjustment would result in a more accurate count than the original census; and that the adjustment would lessen the disproportionate under- counting of minorities." Id., at 1129. The court recognized two significant differences between the intrastate districting cases and the instant action: first, that this case involves the federal rather than a state govern- ment; and second, that constitutional requirements make it impossible to achieve precise equality in voting power na- tionwide. Ibid. But it found these differences nondetermi- native, deciding that no deference was owed to the Executive Branch on a question of law, and that the "impossibility of achieving precise mathematical equality is no excuse for [the Federal Government] not making [the] mandated good-faith effort." Ibid. The court found that the respondents here had established a prima facie violation of the Wesberry standard both by showing that the PES-based adjustment would increase numerical accuracy, and by virtue of the fact that "the differential undercount in the 1990 enumeration was plainly foreseeable and foreseen." 34 F. 3d, at 1130­ 1131. The court held that the Secretary's decision would have to be vacated as unconstitutional unless on remand he could show that the decision not to adjust "(a) furthers a governmental objective that is legitimate, and (b) is essential for the achievement of that objective." Id., at 1131. We think that the Court of Appeals erred in holding the "one person-one vote" standard of Wesberry and its progeny applicable to the action at hand. For several reasons, the 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 17 Opinion of the Court "good-faith effort to achieve population equality" required of a State conducting intrastate redistricting does not translate into a requirement that the Federal Government conduct a census that is as accurate as possible. First, we think that the Court of Appeals understated the significance of the two differences that it recognized between state redistricting cases and the instant action. The court failed to recognize that the Secretary's decision was made pursuant to Con- gress' direct delegation of its broad authority over the cen- sus. See Art. I, § 2, cl. 3 (Congress may conduct the census "in such Manner as they shall by Law direct"). The court also undervalued the significance of the fact that the Consti- tution makes it impossible to achieve population equality among interstate districts. As we have noted before, the Constitution provides that "[t]he number of Representatives shall not exceed one for every 30,000 persons; each State shall have at least one Representative; and district bound- aries may not cross state lines." Montana, 503 U. S., at 447­448. While a court can easily determine whether a State has made the requisite "good-faith effort" toward population equality through the application of a simple mathematical formula, we see no way in which a court can apply the Wes- berry standard to the Federal Government's decisions re- garding the conduct of the census. The Court of Appeals found that Wesberry required the Secretary to conduct a census that would "achieve voting-power equality," which it understood to mean a census that was as accurate as possible. 34 F. 3d, at 1129. But in so doing, the court implicitly found that the Constitution prohibited the Secretary from prefer- ring distributive accuracy to numerical accuracy, and that numerical accuracy-which the court found to be improved by a PES-based adjustment-was constitutionally preferable to distributive accuracy. See id., at 1131 ("[T]he Secretary did not make the required effort to achieve numerical accu- racy as nearly as practicable, . . . the burden thus shifted to 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT 18 WISCONSIN v. CITY OF NEW YORK Opinion of the Court the Secretary to justify his decision not to adjust . . ."). As in Montana, where we could see no constitutional basis upon which to choose between absolute equality and relative equality, so here can we see no ground for preferring numeri- cal accuracy to distributive accuracy, or for preferring gross accuracy to some particular measure of accuracy. The Con- stitution itself provides no real instruction on this point, and extrapolation from our intrastate districting cases is equally unhelpful. Quite simply, "[t]he polestar of equal represen- tation does not provide sufficient guidance to allow us to discern a single constitutionally permissible course." Mon- tana, supra, at 463. In Montana, we held that Congress' "apparently good- faith choice of a method of apportionment of Representatives among the several States `according to their respective Num- bers' " was not subject to strict scrutiny under Wesberry. Montana, supra, at 464. With that conclusion in mind, it is difficult to see why or how Wesberry would apply to the Federal Government's conduct of the census-a context even further removed from intrastate districting than is con- gressional apportionment. Congress' conduct of the census, even more than its decision concerning apportionment, "com- mands far more deference than a state districting decision that is capable of being reviewed under a relatively rigid mathematical standard." 8 Montana, supra, at 464. Rather than the standard adopted by the Court of Ap- peals, we think that it is the standard established by this 8 Nor do we think that strict scrutiny applies here for some other reason. Strict scrutiny of a classification affecting a protected class is properly invoked only where a plaintiff can show intentional discrimination by the Government. Washington v. Davis, 426 U. S. 229, 239­245 (1976). Re- spondents here have not argued that the Secretary's decision not to adjust was based upon an intent to discriminate on the basis of race. Indeed, in light of the Government's extraordinary efforts to include traditionally undercounted minorities in the 1990 census, see Pet. App. 78a, 321a­322a, we think that respondents here would have had a tough row to hoe had they set out to prove intentional discrimination by the Secretary. 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 19 Opinion of the Court Court in Montana and Franklin that applies to the Secre- tary's decision not to adjust. The text of the Constitution vests Congress with virtually unlimited discretion in con- ducting the decennial "actual Enumeration," 9 see Art. I, § 2, cl. 3, and notwithstanding the plethora of lawsuits that inevi- tably accompany each decennial census,10 there is no basis for thinking that Congress' discretion is more limited than the text of the Constitution provides. See also Baldrige v. Shapiro, 455 U. S. 345, 361 (1982) (noting broad scope of Con- gress' discretion over census). Through the Census Act, Congress has delegated its broad authority over the census to the Secretary.11 See 13 U. S. C. § 141(a) (Secretary shall take "a decennial census of [the] population . . . in such form and content as he may determine . . ."). Hence, so long as the Secretary's conduct of the census is "consistent with the 9 We do not decide whether the Constitution might prohibit Congress from conducting the type of statistical adjustment considered here. See Brief for Petitioner in No. 94­1614, pp. 40­42. 10 See, e. g., Franklin v. Massachusetts, 505 U. S. 788, 790 (1992) ("As one season follows another, the decennial census has again generated a number of reapportionment controversies"); National Law Center on Homelessness and Poverty v. Brown, appeal pending, No. 94­5312 (CADC) (argued Oct. 6, 1995) (challenging Census Bureau's procedures for finding and counting homeless persons); Carey v. Klutznick, 637 F. 2d 834 (CA2 1980) (seeking order directing Census Bureau to adopt certain proc- esses for counting persons); Borough of Bethel Park v. Stans, 449 F. 2d 575 (CA3 1971). 11 We do not here decide the precise bounds of the authority delegated to the Secretary through the Census Act. First, because no party here has suggested that Congress has, in its delegation of authority over the conduct of the census to the Secretary, constrained the Secretary's author- ity to decide not to adjust the census, we assume here that the Secretary's discretion not to adjust the census is commensurate with that of Congress. See Brief for Petitioner in No. 94­1614, p. 24, n. 19 (stating that "Congress did not enact any . . . legislation . . . to compel . . . statistical adjustment" of the 1990 census). Second, although Oklahoma argues that Congress has constrained the Secretary's discretion to statistically adjust the decen- nial census, see 13 U. S. C. § 195, we need not decide that question in order to resolve this action. 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT 20 WISCONSIN v. CITY OF NEW YORK Opinion of the Court constitutional language and the constitutional goal of equal representation," Franklin, 505 U. S., at 804, it is within the limits of the Constitution. In light of the Constitution's broad grant of authority to Congress, the Secretary's deci- sion not to adjust need bear only a reasonable relationship to the accomplishment of an actual enumeration of the popu- lation, keeping in mind the constitutional purpose of the census. In 1990, the Census Bureau made an extraordinary effort to conduct an accurate enumeration, and was successful in counting 98.4% of the population. See 58 Fed. Reg. 70 (1993); Brief for Federal Parties 28. The Secretary then had to consider whether to adjust the census using statistical data derived from the PES. He based his decision not to adjust the census upon three determinations. First, he held that in light of the constitutional purpose of the census, its distributive accuracy was more important than its numer- ical accuracy. Second, he determined that the unadjusted census data would be considered the most distributively accurate absent a showing to the contrary. And finally, after reviewing the results of the PES in light of extensive research and the recommendations of his advisers, the Secretary found that the PES-based adjustment would not improve distributive accuracy. Each of these three determi- nations is well within the bounds of the Secretary's constitu- tional discretion. As we have already seen, supra, at 18, the Secretary's de- cision to focus on distributive accuracy is not inconsistent with the Constitution. Indeed, a preference for distributive accuracy (even at the expense of some numerical accuracy) would seem to follow from the constitutional purpose of the census, viz., to determine the apportionment of the Repre- sentatives among the States. Respondents do not dispute this point. See Brief for Respondents 54 ("Distributive ac- curacy is an appropriate criterion for judging census accu- racy because it calls attention to a concern with the uses 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 21 Opinion of the Court to which census data are put"). Rather, they challenge the Secretary's first determination by arguing that he improp- erly "regarded evidence of superior numeric accuracy as `not relevant' to the determination of distributive accuracy." Id., at 39 (quoting Pet. App. 201a); see also Brief for Respondents 51­54. In support of this argument, respondents note that an enumeration that results in increased numerical accuracy will also result in increased distributive accuracy. We think that respondents rest too much upon the state- ment by the Secretary to which they refer. When quoted in full, the statement reads: "While the preponderance of the evidence leads me to believe that the total population at the national level falls between the census counts and the ad- justed figures, that conclusion is not relevant to the deter- mination of distributive accuracy." Pet. App. 201a. In his decision, the Secretary found numerical accuracy (in addi- tion to distributive accuracy) to be relevant to his decision whether to adjust. See id., at 157a. Even if the Secretary had chosen to subordinate numerical accuracy, we are not sure why the fact that distributive and numerical accuracy correlate closely in an improved enumeration would require the Secretary to conclude that they correlate also for a PES- based statistical adjustment. Turning to the Secretary's second determination, we pre- viously have noted, and respondents do not dispute, the im- portance of historical practice in this area. See Franklin, supra, at 803­806 (noting importance of historical experience in conducting the census); cf. Montana, 503 U. S., at 465 ("To the extent that the potentially divisive and complex issues associated with apportionment can be narrowed by the adop- tion of both procedural and substantive rules that are con- sistently applied year after year, the public is well served . . ."). Nevertheless, respondents challenge the Secretary's second determination by arguing that his understanding of historical practice is flawed. According to respondents, the Secretary assumed that the census traditionally was con- 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT 22 WISCONSIN v. CITY OF NEW YORK Opinion of the Court ducted via a simple "headcount," thereby ignoring the fact that statistical adjustment had been used in both the 1970 and 1980 censuses. See Brief for Respondents 4­5. We need not tarry long with this argument. The Secre- tary reasonably recognized that a PES-based statistical ad- justment would be a significant change from the traditional method of conducting the census. The statistical adjust- ments in 1970 and 1980 to which respondents refer were of an entirely different type than the adjustment considered here, and they took place on a dramatically smaller scale. See Cuomo v. Baldrige, 674 F. Supp., at 1107 (rejecting ar- gument that Secretary had to conduct PES-like statistical adjustment of 1980 census and finding that "none of [the] adjustments in 1970 were even remotely similar to the types of wholesale adjustments presently suggested . . ."). More- over, the PES-based adjustment would have been the first time in history that the States' apportionment would have been based upon counts in other States. See Pet. App. 251a­252a. Here, the Secretary's understanding of the tra- ditional method of conducting the census was well founded, as was his establishment of a rebuttable presumption that the traditional method was the most accurate. The Secretary ultimately determined that the available evidence "tends to support the superior distributive accu- racy of the actual enumeration," id., at 185a, and it is this determination at which respondents direct the brunt of their attack. Respondents contend that the Secretary's review of the evidence is due no deference from this Court. They argue that the Secretary's decision is not the sort of "highly technical" administrative decision that normally commands judicial deference, and that regardless of its technical com- plexity, the Secretary's review of the evidence presents a constitutional issue that deserves no deference. Respond- ents contend that the Secretary's review of the evidence is of dubious validity because the Secretary is admittedly "not a statistician," id., at 139a, and because his conclusion is at 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT Cite as: 517 U. S. 1 (1996) 23 Opinion of the Court odds with that of the Director of the Census. According to respondents, we should carefully comb the Secretary's deci- sion in order to review his conclusions de novo. Respondents' argument fundamentally misapprehends the basis for our deference to the Secretary's determination that the adjusted census results do not provide a more distribu- tively accurate count of the population. Our deference arises not from the highly technical nature of his decision, but rather from the wide discretion bestowed by the Consti- tution upon Congress, and by Congress upon the Secretary. Regardless of the Secretary's statistical expertise, it is he to whom Congress has delegated its constitutional authority over the census. For that same reason, the mere fact that the Secretary's decision overruled the views of some of his subordinates is by itself of no moment in any judicial review of his decision. Turning finally to review the Secretary's conclusion that the PES-based adjustment would not improve distributive accuracy, we need note only that the Secretary's conclusion is supported by the reasoning of some of his advisers, and was therefore a reasonable choice in an area where technical experts disagree. Cf. Tucker v. United States Dept. of Com- merce, 958 F. 2d, at 1418 (Plaintiffs seeking PES-based sta- tistical adjustment "are asking [courts] to take sides in a dispute among statisticians, demographers, and census offi- cials concerning the desirability of making a statistical ad- justment to the census headcount"). The Under Secretary of Commerce for Economic Affairs and the Administrator of the Economics and Statistics Administration both voted against adjustment. Pet. App. 59a, 140a. Moreover, even those who recommended in favor of adjustment recognized that their conclusion was not compelled by the evidence: The Director of the Census Bureau, upon whose recommendation respondents heavily rely, stated in her report to the Secre- tary that "[a]djustment is an issue about which reasonable men and women and the best statisticians and demographers 517us1$35H 02-23-99 16:33:33 PAGES OPINPGT 24 WISCONSIN v. CITY OF NEW YORK Opinion of the Court can disagree." App. 73. And one of the principal statisti- cians at the Bureau, Dr. Robert E. Fay, " `told the Secretary that . . . reasonable statisticians could differ' " on the ques- tion of adjustment. Pet. App. 91a. Therefore, and because we find the Secretary's two prior determinations as well to be entirely reasonable, we conclude that his decision not to adjust the 1990 census was "consonant with . . . the text and history of the Constitution." Franklin, 505 U. S., at 806. III The Constitution confers upon Congress the responsibility to conduct an "actual Enumeration" of the American public every 10 years, with the primary purpose of providing a basis for apportioning political representation among the States. Here, the Secretary of Commerce, to whom Con- gress has delegated its constitutional authority over the cen- sus, determined that in light of the constitutional purpose of the census, an "actual Enumeration" would best be achieved without the PES-based statistical adjustment of the results of the initial enumeration. We find that conclusion entirely reasonable. Therefore we hold that the Secretary's decision was well within the constitutional bounds of discretion over the conduct of the census provided to the Federal Govern- ment. The judgment of the Court of Appeals is Reversed. 517us1$36z 02-16-99 16:42:37 PAGES OPINPGT OCTOBER TERM, 1995 25 Syllabus BARNETT BANK OF MARION COUNTY, N. A. v. NELSON, FLORIDA INSURANCE COMMISSIONER, et al. certiorari to the united states court of appeals for the eleventh circuit No. 94­1837. Argued January 16, 1996-Decided March 26, 1996 A 1916 federal law (Federal Statute) permits national banks to sell insur- ance in small towns, but a Florida law (State Statute) prohibits such banks from selling most types of insurance. When petitioner Barnett Bank, a national bank doing business in a small Florida town, bought a state licensed insurance agency, respondent State Insurance Commis- sioner ordered the agency to stop selling the prohibited forms of insur- ance. In this action for declaratory and injunctive relief, the District Court held that the State Statute was not pre-empted, but only because of the McCarran-Ferguson Act's special insurance-related anti-pre- emption rule. That rule provides that a federal law will not pre-empt a state law enacted "for the purpose of regulating the business of insur- ance"-unless the federal statute "specifically relates to the business of insurance." 15 U. S. C. § 1012(b) (emphasis added). The Court of Appeals affirmed. Held: The Federal Statute pre-empts the State Statute. Pp. 30­43. (a) Under ordinary pre-emption principles, the State Statute would be pre-empted, for it is clear that Congress, in enacting the Federal Statute, intended to exercise its constitutionally delegated authority to override contrary state law. The Federal and State Statutes are in "irreconcilable conflict," Rice v. Norman Williams Co., 458 U. S. 654, 659, since the Federal Statute authorizes national banks to engage in activities that the State Statute expressly forbids. Thus, the State's prohibition would seem to "stan[d] as an obstacle to the accomplish- ment" of one of the Federal Statute's purposes, Hines v. Davidowitz, 312 U. S. 52, 67, unless, as the State contends, Congress intended to limit federal permission to sell insurance to those circumstances permitted by state law. However, by providing, without relevant qualification, that national banks "may . . . act as the agent" for insurance sales, 12 U. S. C. § 92, the Federal Statute's language suggests a broad, not a limited, permission. That this authority is granted in "addition to the powers now vested . . . in national [banks]," ibid. (emphasis added), is also sig- nificant. Legislative grants of both enumerated and incidental "pow- ers" to national banks historically have been interpreted as grants of 517us1$36z 02-16-99 16:42:37 PAGES OPINPGT 26 BARNETT BANK OF MARION CTY., N. A. v. NELSON Syllabus authority not normally limited by, but rather ordinarily pre-empting, contrary state law. See, e. g., First Nat. Bank of San Jose v. Califor- nia, 262 U. S. 366, 368­369. Where, as here, Congress has not ex- pressly conditioned the grant of power upon a grant of state permission, this Court has ordinarily found that no such condition applies. See Franklin Nat. Bank of Franklin Square v. New York, 347 U. S. 373. The State's argument that special circumstances surrounding the Fed- eral Statute's enactment demonstrate Congress' intent to grant only a limited permission is unpersuasive. Pp. 30­37. (b) The McCarran-Ferguson Act's anti-pre-emption rule does not gov- ern this case, because the Federal Statute "specifically relates to the business of insurance." This conclusion rests upon the Act's language and purposes, taken together. The word "relates" is highly general; and in ordinary English, the Federal Statute-which focuses directly upon industry-specific selling practices and affects the relation of in- sured to insurer and the spreading of risk-"specifically" relates to the insurance business. The Act's mutually reinforcing purposes-that state regulation and taxation of the insurance business are in the public interest, and that Congress' "silence . . . shall not be construed to impose any barrier to [such] regulation or taxation," 15 U. S. C. § 1011 (emphasis added)-also support this view. This phrase, especially the word "silence," indicates that the Act seeks to protect state regulation pri- marily against inadvertent federal intrusion, not to insulate state in- surance regulation from the reach of all federal law. The circumstances surrounding the Act's enactment also suggest that the Act was passed to ensure that generally phrased congressional statutes, which do not mention insurance, are not applied to the issuance of insurance poli- cies, thereby interfering with state regulation in unanticipated ways. The parties' remaining arguments to the contrary are unconvincing. Pp. 37­43. 43 F. 3d 631, reversed. Breyer, J., delivered the opinion for a unanimous Court. Nathan Lewin argued the cause and filed briefs for peti- tioner. With him on the briefs were Scott L. Nelson, James R. Heavner, Jr., and Richard E. Swartley. Richard P. Bress argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney Gen- eral Hunger, Deputy Solicitor General Bender, Edward C. DuMont, Anthony J. Steinmeyer, Jacob M. Lewis, Julie L. 517us1$36z 02-16-99 16:42:37 PAGES OPINPGT Cite as: 517 U. S. 25 (1996) 27 Opinion of the Court Williams, L. Robert Griffin, Ernest C. Barrett III, and Joan M. Bernott. Daniel Y. Sumner argued the cause and filed a brief for respondents Bill Nelson et al. With him on the brief were David J. Busch, Dennis Silverman, and Karen Asher-Cohen. Ann M. Kappler argued the cause and filed a brief for re- spondents Florida Association of Life Underwriters et al. With her on the brief were Scott A. Sinder, Sam Hirsch, Bruce J. Ennis, Jr., Paul M. Smith, and Donald B. Ver- rilli, Jr.* Justice Breyer delivered the opinion of the Court. The question in this case is whether a federal statute that permits national banks to sell insurance in small towns pre- empts a state statute that forbids them to do so. To answer this question, we must consider both ordinary pre-emption principles, and also a special federal anti-pre-emption rule, which provides that a federal statute will not pre-empt a *Briefs of amici curiae urging reversal were filed for the American Bankers Association et al. by John J. Gill III, Michael F. Crotty, Mathew H. Street, Richard M. Whiting, Leonard J. Rubin, M. Thurman Senn, and David L. Glass; for American Deposit Corp. et al. by Thaddeus Holt and Dennis M. Gingold; for the Consumer Bankers Association et al. by David W. Roderer, Eric L. Hirschhorn, Donn C. Meindertsma, John W. Ander- son, and Jeffrey D. Quayle; for the Florida Bankers Association by J. Thomas Cardwell and Virginia B. Townes; and for the New York Clearing House Association by Bruce E. Clark, Michael M. Wiseman, and Norman R. Nelson. Briefs of amici curiae urging affirmance were filed for the American Council of Life Insurance by David Overlock Stewart, James M. Licht- man, Gary E. Hughes, and Phillip E. Stano; for the Council of Insurance Agents and Brokers by Mark E. Herlihy; for the National Association of Insurance Commissioners by Ellen Dollase Wilcox; for the National Conference of State Legislatures et al. by Richard Ruda, Lee Fennell, and Arthur E. Wilmarth, Jr.; and for Don W. Stephens et al. by Stephen B. Cox, Suetta W. Dickinson, Julie A. Fuselier, Richard Blumenthal, At- torney General of Connecticut, and John G. Haines, Assistant Attorney General. 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT 28 BARNETT BANK OF MARION CTY., N. A. v. NELSON Opinion of the Court state statute enacted "for the purpose of regulating the busi- ness of insurance"-unless the federal statute "specifically relates to the business of insurance." McCarran-Ferguson Act, 15 U. S. C. § 1012(b) (emphasis added). We decide that the McCarran-Ferguson Act's special anti-pre-emption rule does not govern this case, because the federal statute in question "specifically relates to the business of insurance." We conclude that, under ordinary pre-emption principles, the federal statute pre-empts the state statute, thereby prohibit- ing application of the state statute to prevent a national bank from selling insurance in a small town. I In 1916 Congress enacted a federal statute that says that certain national banks "may" sell insurance in small towns. It provides in relevant part: "In addition to the powers now vested by law in national [banks] organized under the laws of the United States any such [bank] located and doing business in any place [with a population] . . . [of not more than] five thousand . . . may, under such rules and regulations as may be prescribed by the Comptroller of the Currency, act as the agent for any fire, life, or other insurance company authorized by the authorities of the State . . . to do business [there], . . . by soliciting and selling insur- ance . . . Provided, however, That no such bank shall . . . guarantee the payment of any premium . . . And pro- vided further, That the bank shall not guarantee the truth of any statement made by an assured [when applying] . . . for insurance." Act of Sept. 7, 1916 (Fed- eral Statute), 39 Stat. 753, as amended, 12 U. S. C. § 92 (emphases changed). In 1974 Florida enacted a statute that prohibits certain banks from selling most kinds of insurance. It says: 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT Cite as: 517 U. S. 25 (1996) 29 Opinion of the Court "No [Florida licensed] insurance agent . . . who is associated with, . . . owned or controlled by . . . a financial institution shall engage in insurance agency activities . . . ." Fla. Stat. § 626.988(2) (Supp. 1996) (State Statute). The term "financial institution" includes "any bank . . . [except for a] bank which is not a subsid- iary or affiliate of a bank holding company and is located in a city having a population of less than 5,000 . . . ." § 626.988(1)(a). Thus, the State Statute says, in essence, that banks cannot sell insurance in Florida-except that an unaffiliated small town bank (i. e., a bank that is not affiliated with a bank holding company) may sell insurance in a small town. Ibid. In October 1993 petitioner Barnett Bank, an "affiliate[d]" national bank which does business through a branch in a small Florida town, bought a Florida licensed insurance agency. The Florida State Insurance Commissioner, point- ing to the State Statute (and noting that the unaffiliated small town bank exception did not apply), ordered Barnett's insurance agency to stop selling the prohibited forms of insurance. Barnett, claiming that the Federal Statute pre-empted the State Statute, then filed this action for declaratory and injunctive relief in federal court. The District Court held that the Federal Statute did not pre-empt the State Statute, but only because of the spe- cial insurance-related federal anti-pre-emption rule. The McCarran-Ferguson Act, which creates that rule, says: "No act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance . . . ." McCarran-Ferguson Act, § 2(b), 59 Stat. 34, 15 U. S. C. § 1012(b). 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT 30 BARNETT BANK OF MARION CTY., N. A. v. NELSON Opinion of the Court The District Court decided both (1) that the Federal Stat- ute did not fall within the McCarran-Ferguson Act's excep- tion because it did not "specifically relat[e] to the business of insurance"; and (2) that the State Statute was a "law enacted . . . for the purpose of regulating the business of insurance." Barnett Bank of Marion County, N. A. v. Gallagher, 839 F. Supp. 835, 840­841, 843 (MD Fla. 1993) (internal quotation marks omitted). Consequently, the McCarran-Ferguson Act, in the District Court's view, instructs courts not to "constru[e]" the Federal Statute "to invalidate" the State Statute. 15 U. S. C. § 1012(b). The Eleventh Circuit Court of Appeals, for similar reasons, agreed that the Federal Stat- ute did not pre-empt the State Statute. Barnett Bank of Marion County, N. A. v. Gallagher, 43 F. 3d 631, 634­637 (1995). We granted certiorari due to uncertainty among lower courts about the pre-emptive effect of this Federal Statute. See Owensboro Nat. Bank v. Stephens, 44 F. 3d 388 (CA6 1994) (pre-emption of Kentucky statute that prevents na- tional banks from selling insurance in small towns); First Advantage Ins., Inc. v. Green, 652 So. 2d 562 (La. Ct. App.), cert. and review denied, 654 So. 2d 331 (1995) (no pre- emption). We now reverse the Eleventh Circuit. II We shall put the McCarran-Ferguson Act's special anti- pre-emption rule to the side for the moment, and begin by asking whether, in the absence of that rule, we should con- strue the Federal Statute to pre-empt the State Statute. This question is basically one of congressional intent. Did Congress, in enacting the Federal Statute, intend to exercise its constitutionally delegated authority to set aside the laws of a State? If so, the Supremacy Clause requires courts to follow federal, not state, law. U. S. Const., Art. VI, cl. 2; see California Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272, 280­281 (1987) (reviewing pre-emption doctrine). 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT Cite as: 517 U. S. 25 (1996) 31 Opinion of the Court Sometimes courts, when facing the pre-emption question, find language in the federal statute that reveals an explicit congressional intent to pre-empt state law. E. g., Jones v. Rath Packing Co., 430 U. S. 519, 525, 530­531 (1977). More often, explicit pre-emption language does not appear, or does not directly answer the question. In that event, courts must consider whether the federal statute's "structure and pur- pose," or nonspecific statutory language, nonetheless reveal a clear, but implicit, pre-emptive intent. Id., at 525; Fidel- ity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 152­153 (1982). A federal statute, for example, may create a scheme of federal regulation "so pervasive as to make rea- sonable the inference that Congress left no room for the States to supplement it." Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). Alternatively, federal law may be in "irreconcilable conflict" with state law. Rice v. Norman Williams Co., 458 U. S. 654, 659 (1982). Compliance with both statutes, for example, may be a "physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142­143 (1963); or, the state law may "stan[d] as an ob- stacle to the accomplishment and execution of the full pur- poses and objectives of Congress." Hines v. Davidowitz, 312 U. S. 52, 67 (1941). In this case we must ask whether or not the Federal and State Statutes are in "irreconcilable conflict." The two stat- utes do not impose directly conflicting duties on national banks-as they would, for example, if the federal law said, "you must sell insurance," while the state law said, "you may not." Nonetheless, the Federal Statute authorizes national banks to engage in activities that the State Statute expressly forbids. Thus, the State's prohibition of those activities would seem to "stan[d] as an obstacle to the accomplishment" of one of the Federal Statute's purposes-unless, of course, that federal purpose is to grant the bank only a very limited permission, that is, permission to sell insurance to the extent that state law also grants permission to do so. 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT 32 BARNETT BANK OF MARION CTY., N. A. v. NELSON Opinion of the Court That is what the State of Florida and its supporting amici argue. They say that the Federal Statute grants national banks a permission that is limited to circumstances where state law is not to the contrary. In their view, the Federal Statute removes only federal legal obstacles, not state legal obstacles, to the sale of insurance by national banks. But we do not find this, or the State's related, ordinary pre- emption arguments, convincing. For one thing, the Federal Statute's language suggests a broad, not a limited, permission. That language says, with- out relevant qualification, that national banks "may . . . act as the agent" for insurance sales. 12 U. S. C. § 92. It spe- cifically refers to "rules and regulations" that will govern such sales, while citing as their source not state law, but the federal Comptroller of the Currency. Ibid. It also specifi- cally refers to state regulation, while limiting that reference to licensing-not of banks or insurance agents, but of the insurance companies whose policies the bank, as insurance agent, will sell. Ibid. For another thing, the Federal Statute says that its grant of authority to sell insurance is in "addition to the powers now vested by law in national [banks]." Ibid. (emphasis added). In using the word "powers," the statute chooses a legal concept that, in the context of national bank legislation, has a history. That history is one of interpreting grants of both enumerated and incidental "powers" to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law. See, e. g., First Nat. Bank of San Jose v. California, 262 U. S. 366, 368­369 (1923) (national banks' "power" to receive deposits pre-empts contrary state escheat law); Easton v. Iowa, 188 U. S. 220, 229­230 (1903) (national banking system normally "inde- pendent, so far as powers conferred are concerned, of state legislation"); cf. Waite v. Dowley, 94 U. S. 527, 533 (1877) ("[W]here there exists a concurrent right of legislation in the States and in Congress, and the latter has exercised its 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT Cite as: 517 U. S. 25 (1996) 33 Opinion of the Court power, there remains in the States no authority to legislate on the same matter"). Thus, this Court, in a case quite similar to this one, held that a federal statute permitting, but not requiring, national banks to receive savings deposits pre-empts a state statute prohibiting certain state and national banks from using the word "savings" in their advertising. Franklin Nat. Bank of Franklin Square v. New York, 347 U. S. 373, 375­379 (1954) (Federal Reserve Act provision that national banks "may continue . . . to receive . . . savings deposits" read as "declara- tory of the right of a national bank to enter into or remain in that type of business"). See also De la Cuesta, supra, at 154­159 (federal regulation permitting, but not requiring, national banks to include in mortgage contracts a debt accel- erating "due on sale" clause pre-empts a state law forbidding the use of such a clause); cf. Lawrence County v. Lead- Deadwood School Dist. No. 40­1, 469 U. S. 256 (1985) (federal statute providing that local government units "may" expend federal funds for any governmental purpose pre-empts state law restricting their expenditure). In defining the pre-emptive scope of statutes and regula- tions granting a power to national banks, these cases take the view that normally Congress would not want States to forbid, or to impair significantly, the exercise of a power that Congress explicitly granted. To say this is not to deprive States of the power to regulate national banks, where (unlike here) doing so does not prevent or significantly interfere with the national bank's exercise of its powers. See, e. g., Anderson Nat. Bank v. Luckett, 321 U. S. 233, 247­252 (1944) (state statute administering abandoned deposit accounts did not "unlawful[ly] encroac[h] on the rights and privileges of national banks"); McClellan v. Chipman, 164 U. S. 347, 358 (1896) (application to national banks of state statute forbid- ding certain real estate transfers by insolvent transferees would not "destro[y] or hampe[r]" national banks' functions); National Bank v. Commonwealth, 9 Wall. 353, 362 (1870) 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT 34 BARNETT BANK OF MARION CTY., N. A. v. NELSON Opinion of the Court (national banks subject to state law that does not "interfere with, or impair [national banks'] efficiency in performing the functions by which they are designed to serve [the Federal] Government"). Nor do these cases control the interpretation of federal banking statutes that accompany a grant of an explicit power with an explicit statement that the exercise of that power is subject to state law. See, e. g., 12 U. S. C. § 36(c) (McFadden Act) (authorizing national banks to operate branches, but only where state law authorizes state banks to do so); § 92a(a) (Comptroller of Currency may grant fiduciary powers "by special permit to national banks applying therefor, when not in contravention of State or local law"). Not surprisingly, this Court has interpreted those explicit provisions to mean what they say. See, e. g., First Nat. Bank in Plant City v. Dickinson, 396 U. S. 122, 131 (1969) (under McFadden Act, state branching restrictions apply to national banks); First Nat. Bank of Logan v. Walker Bank & Trust Co., 385 U. S. 252, 260­261 (1966) (same); see also Van Allen v. Assessors, 3 Wall. 573, 586 (1866) (enforcing 1864 amendments to National Bank Act expressly authorizing state taxation of national bank shares). But, as we pointed out, supra, at 32­33, where Congress has not expressly conditioned the grant of "power" upon a grant of state permission, the Court has ordinarily found that no such condition applies. In Franklin Nat. Bank, the Court made this point explicit. It held that Congress did not intend to subject national banks' power to local restric- tions, because the federal power-granting statute there in question contained "no indication that Congress [so] intended . . . as it has done by express language in several other instances." 347 U. S., at 378, and n. 7 (emphasis added) (collecting examples). The Federal Statute before us, as in Franklin Nat. Bank, explicitly grants a national bank an authorization, permis- sion, or power. And, as in Franklin Nat. Bank, it contains 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT Cite as: 517 U. S. 25 (1996) 35 Opinion of the Court no "indication" that Congress intended to subject that power to local restriction. Thus, the Court's discussion in Frank- lin Nat. Bank, the holding of that case, and the other prece- dent we have cited above, strongly argue for a similar inter- pretation here-a broad interpretation of the word "may" that does not condition federal permission upon that of the State. Finally, Florida and its supporters challenge this interpre- tation by arguing that special circumstances surrounding the enactment of the Federal Statute nonetheless demonstrate Congress' intent to grant only a limited permission (subject to state approval). They point to a letter to Congress writ- ten by the Comptroller of the Currency in 1916. The Comp- troller attached a draft of what became the Federal Statute, and the letter explains to Congress why the Comptroller wants Congress to enact his proposal. The letter says that, since 1900, many small town national banks had failed; that some States had authorized small town state banks to sell insurance; that providing small town national banks with authority to sell insurance would help them financially; and that doing so would also improve their competitive position vis-a -vis state banks. The relevant language in the letter (somewhat abridged) reads as follows: "[Since 1900, of 3,084 small national banks, 438] have either failed or gone into liquidation. . . . [T]here are many banks located in [small towns] . . . where the small deposits which the banks receive may make it somewhat difficult [to earn] . . . a satisfactory return . . . . "For some time I have been giving careful consider- ation to the question as to how the powers of these small national banks might be enlarged so as to provide them with additional sources of revenue and place them in a position where they could better compete with local State banks and trust companies which are sometimes 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT 36 BARNETT BANK OF MARION CTY., N. A. v. NELSON Opinion of the Court authorized under the law to do a class of business not strictly that of commercial banking. . . . "[The federal banking laws, while granting national banks certain "incidental powers," do not give them] either expressly nor by necessary implication the power to act as agents for insurance companies. . . . . . . . . "My investigations lead me respectfully to recommend to Congress an amendment to the national-bank act by which national banks located in [small towns] . . . may be permitted to act as agents for insurance companies . . . . "It seems desirable from the standpoint of public pol- icy and banking efficiency that this authority should be limited to banks in small communities. This additional income will strengthen them and increase their ability to make a fair return . . . . "I think it would be unwise and therefore undesirable to confer this privilege generally upon banks in large cities where the legitimate business of banking affords ample scope for the energies of trained and expert bank- ers . . . . "I inclose . . . a draft . . . designed to empower national banks located in [small] towns . . . under such regulations and restrictions as may from time to time be approved and promulgated by the Comptroller of the Currency, to act as agents for the placing of insurance policies . . . ." 53 Cong. Rec. 11001 (1916) (letter from Comptroller Wil- liams to the Chairman of the Senate Bank and Cur- rency Committee). Assuming for argument's sake that this letter is relevant, and in response to the arguments of Florida and its support- ers, we point out that the letter does not significantly advance their cause. Although the letter mentions that enlarging the powers of small national banks will help them "better compete with local State banks," it primarily focuses upon small town national banks' need for added revenue- 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT Cite as: 517 U. S. 25 (1996) 37 Opinion of the Court an objective met by a broad insurance-selling authority that is not limited by state law. The letter refers to limitations that federal regulation might impose, but it says nothing about limitations imposed by state regulation or state law. The letter makes clear that authority to sell insurance in small towns is an added "incidental power" of a national bank-a term that, in light of this Court's then-existing cases, suggested freedom from conflicting state regulation. See Easton, 188 U. S., at 229­230; First Nat. Bank of San Jose, 262 U. S., at 368­369. The letter sets forth as potential objections to the proposal (or to its extension to larger na- tional banks) concerns about distracting banking manage- ment or inhibiting the development of banking expertise- not concerns related to state regulatory control. We have found nothing elsewhere in the Federal Statute's background or history that significantly supports the State's arguments. And as far as we are aware, the Comptroller's subsequent interpretation of the Federal Statute does not suggest that the statute provides only a limited authority subject to similar state approval. Cf. 12 CFR § 7.7100 (1995); OCC Interpretive Letter No. 366, CCH Fed. Banking L. Rep. ¶ 85,536, p. 77,833 (1986). In light of these considerations, we conclude that the Fed- eral Statute means to grant small town national banks au- thority to sell insurance, whether or not a State grants its own state banks or national banks similar approval. Were we to apply ordinary legal principles of pre-emption, the federal law would pre-empt that of the State. III We now must decide whether ordinary legal principles of pre-emption, or the special McCarran-Ferguson Act anti- pre-emption rule, governs this case. The lower courts held that the McCarran-Ferguson Act's special anti-pre-emption rule applies, and instructs courts not to "construe" the Fed- eral Statute to "invalidate, impair, or supersede" that of the 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT 38 BARNETT BANK OF MARION CTY., N. A. v. NELSON Opinion of the Court State. 15 U. S. C. § 1012(b). By its terms, however, the Act does not apply when the conflicting federal statute "specifi- cally relates to the business of insurance." Ibid. (emphasis added). In our view, the Federal Statute in this case "spe- cifically relates to the business of insurance"-therefore the McCarran-Ferguson Act's special anti-pre-emption rule does not apply. Our conclusion rests upon the McCarran-Ferguson Act's language and purpose, taken together. Consider the lan- guage-"specifically relates to the business of insurance." In ordinary English, a statute that says that banks may act as insurance agents, and that the Comptroller of the Cur- rency may regulate their insurance-related activities, "re- lates" to the insurance business. The word "relates" is highly general, and this Court has interpreted it broadly in other pre-emption contexts. See, e. g., Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 47 (1987) (words " `relate to' " have " `broad common-sense meaning, such that a state law "re- late[s] to" a benefit plan ". . . if it has a connection with or reference to such a plan" ' ") (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 739 (1985), in turn quot- ing Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 97 (1983)); Morales v. Trans World Airlines, Inc., 504 U. S. 374, 383­384 (1992) (interpreting similarly the words " `relating to' " in the Airline Deregulation Act of 1978). More importantly, in ordinary English, this statute "spe- cifically" relates to the insurance business. "Specifically" can mean "explicitly, particularly, [or] definitely," Black's Law Dictionary 1398 (6th ed. 1990), thereby contrasting a specific reference with an implicit reference made by more general language to a broader topic. The general words "business activity," for example, will sometimes include, and thereby implicitly refer, to insurance; the particular words "finance, banking, and insurance" make that reference explic- itly and specifically. 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT Cite as: 517 U. S. 25 (1996) 39 Opinion of the Court Finally, using ordinary English, one would say that this statute specifically relates to the "business of insurance." The statute explicitly grants national banks permission to "act as the agent for any fire, life, or other insurance com- pany," to "solici[t] and sel[l] insurance," to "collec[t] premi- ums," and to "receive for services so rendered . . . fees or commissions," subject to Comptroller regulation. 12 U. S. C. § 92. It also sets forth certain specific rules prohib- iting banks from guaranteeing the "payment of any premium on insurance policies issued through its agency . . ." and the "truth of any statement made by an assured in filing his application for insurance." Ibid. The statute thereby not only focuses directly upon industry-specific selling practices, but also affects the relation of insured to insurer and the spreading of risk-matters that this Court, in other contexts, has placed at the core of the McCarran-Ferguson Act's con- cern. See Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119, 129 (1982) (citing Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205 (1979); see also Department of Treas- ury v. Fabe, 508 U. S. 491, 502­504 (1993). Consider, too, the McCarran-Ferguson Act's basic pur- poses. The Act sets forth two mutually reinforcing pur- poses in its first section, namely, that "continued regulation and taxation by the several States of the business of insur- ance is in the public interest," and that "silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States." 15 U. S. C. § 1011 (emphasis added). The latter phrase, particularly the word "silence," indicates that the Act does not seek to insulate state insurance regulation from the reach of all federal law. Rather, it seeks to protect state regulation primarily against inadvertent federal intrusion- say, through enactment of a federal statute that describes an affected activity in broad, general terms, of which the insur- ance business happens to constitute one part. 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT 40 BARNETT BANK OF MARION CTY., N. A. v. NELSON Opinion of the Court The circumstances surrounding enactment of the McCarran-Ferguson Act suggest the same. Just prior to the law's enactment, this Court, in United States v. South- Eastern Underwriters Assn., 322 U. S. 533 (1944), held that a federal antitrust law, the Sherman Act, applied to the business of insurance. The Sherman Act's highly general language said nothing specifically about insurance. See 15 U. S. C. § 1 (forbidding every "contract, combination . . . or conspiracy, in restraint of trade or commerce among the several States"). The Sherman Act applied only to activi- ties in or affecting interstate commerce. Hopkins v. United States, 171 U. S. 578, 586 (1898). Many lawyers and insur- ance professionals had previously thought (relying, in part, on this Court's opinion in Paul v. Virginia, 8 Wall. 168, 183 (1869), and other cases) that the issuance of an insurance policy was not a "transaction of commerce," and therefore fell outside the Sherman Act's scope. South-Eastern Un- derwriters told those professionals that they were wrong about interstate commerce, and that the Sherman Act did apply. And South-Eastern Underwriters' principle meant, consequently, that other generally phrased congressional statutes might also apply to the issuance of insurance poli- cies, thereby interfering with state regulation of insurance in similarly unanticipated ways. In reaction to South-Eastern Underwriters, Congress "moved quickly," enacting the McCarran-Ferguson Act "to restore the supremacy of the States in the realm of insurance regulation." Fabe, supra, at 500. But the circumstances we have just described mean that "restor[ation]" of "su- premacy" basically required setting aside the unanticipated effects of South-Eastern Underwriters, and cautiously avoid- ing similar unanticipated interference with state regulation in the future. It did not require avoiding federal pre- emption by future federal statutes that indicate, through their "specific relat[ion]" to insurance, that Congress had focused upon the insurance industry, and therefore, in all 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT Cite as: 517 U. S. 25 (1996) 41 Opinion of the Court likelihood, consciously intended to exert upon the insurance industry whatever pre-emptive force accompanied its law. See also, e. g., insofar as relevant, 91 Cong. Rec. 483 (1945) (statement of Sen. O'Mahoney, floor manager of the Act, that the Act was intended to be "a sort of catch-all provision to take into consideration other acts of Congress which might affect the insurance industry, but of which we did not have knowledge at the time"); ibid. (similar statement of Sen. Ferguson). The language of the Federal Statute before us is not gen- eral. It refers specifically to insurance. Its state regula- tory implications are not surprising, nor do we believe them inadvertent. See Part II, supra. Consequently, considera- tions of purpose, as well as of language, indicate that the Federal Statute falls within the scope of the McCarran- Ferguson Act's "specifically relates" exception to its anti- pre-emption rule. Cf. John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U. S. 86, 98 (1993) (adopt- ing the United States' view that language in the Employee Retirement Income Security Act of 1974 defining a "guaran- teed benefit policy" as a certain kind of "insurance" policy "obviously and specifically relates to the business of insur- ance") (internal quotation marks omitted). We shall mention briefly why we are not convinced by sev- eral of the parties' remaining arguments. Florida says that the Federal Statute "specifically relates" to banking, not to insurance. But a statute may specifically relate to more than one thing. Just as an ordinance forbidding dogs in city parks specifically relates to dogs and to parks, so a statute permitting banks to sell insurance can specifically relate to banks and to insurance. Neither the McCarran-Ferguson Act's language, nor its purpose, requires the Federal Statute to relate predominantly to insurance. To the contrary, specific detailed references to the insurance industry in proposed legislation normally will achieve the McCarran- Ferguson Act's objectives, for they will call the proposed leg- 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT 42 BARNETT BANK OF MARION CTY., N. A. v. NELSON Opinion of the Court islation to the attention of interested parties, and thereby normally guarantee, should the proposal become law, that Congress will have focused upon its insurance-related effects. An amicus argues that our interpretation would give the Act "little meaning," because "whenever a state statute `regulates' the business of insurance, any conflicting federal statute necessarily will `specifically relate' to the insurance business." Brief for American Council of Life Insurance as Amicus Curiae 4. We disagree. Many federal statutes with potentially pre-emptive effect, such as the bankruptcy statutes, use general language that does not appear to "spe- cifically relate" to insurance; and where those statutes con- flict with state law that was enacted "for the purpose of reg- ulating the business of insurance," the McCarran-Ferguson Act's anti-pre-emption rule will apply. See generally Fabe, supra, at 501 (noting the parties' agreement that federal bankruptcy priority rules, although conflicting with state law, do not "specifically relate" to the business of insurance). The lower courts argued that the Federal Statute's 1916 date of enactment was significant, because Congress would have then believed that state insurance regulation was be- yond its "Commerce Clause" power to affect. The lower courts apparently thought that Congress therefore could not have intended the Federal Statute to pre-empt contrary state law. The short answer to this claim is that there is no reason to think that Congress believed state insurance regulation beyond its constitutional powers to affect-inso- far as Congress exercised those powers to create, to em- power, or to regulate national banks. See McCulloch v. Maryland, 4 Wheat. 316 (1819); Farmers' and Mechanics' Nat. Bank v. Dearing, 91 U. S. 29, 33 (1875); see also, e. g., Easton v. Iowa, 188 U. S., at 238. We have explained, see Part II, supra, why we conclude that Congress indeed did intend the Federal Statute to pre-empt conflicting state law. 517us1$36Q 02-16-99 16:42:37 PAGES OPINPGT Cite as: 517 U. S. 25 (1996) 43 Opinion of the Court Finally, Florida points to language in Fabe, which states that the McCarran-Ferguson Act "imposes what is, in effect, a clear-statement rule" that forbids pre-emption "unless a federal statute specifically requires otherwise." 508 U. S., at 507. Florida believes that this statement in Fabe means that the Federal Statute would have to use the words "state law is pre-empted," or the like, in order to fall within the McCarran-Ferguson Act exception. We do not believe, how- ever, that Fabe imposes any such requirement. Rather, the quoted language in Fabe was a general description of the Act's effect. It simply pointed to the existence of the clause at issue here-the exception for federal statutes that "spe- cifically relat[e] to the business of insurance." But it did not purport authoritatively to interpret the "specifically relates" clause. That matter was not at issue in Fabe. We there- fore believe that Fabe does not require us to reach a different result here. For these reasons, the judgment of the Court of Appeals is reversed. It is so ordered. 517us1$37Z 02-23-99 16:36:04 PAGES OPINPGT 44 OCTOBER TERM, 1995 Syllabus SEMINOLE TRIBE OF FLORIDA v. FLORIDA et al. certiorari to the united states court of appeals for the eleventh circuit No. 94­12. Argued October 11, 1995-Decided March 27, 1996 The Indian Gaming Regulatory Act, passed by Congress pursuant to the Indian Commerce Clause, allows an Indian tribe to conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located. 25 U. S. C. § 2710(d)(1)(C). Under the Act, States have a duty to negoti- ate in good faith with a tribe toward the formation of a compact, § 2710(d)(3)(A), and a tribe may sue a State in federal court in order to compel performance of that duty, § 2710(d)(7). In this § 2710(d)(7) suit, respondents, Florida and its Governor, moved to dismiss petitioner Sem- inole Tribe's complaint on the ground that the suit violated Florida's sovereign immunity from suit in federal court. The District Court denied the motion, but the Court of Appeals reversed, finding that the Indian Commerce Clause did not grant Congress the power to abrogate the States' Eleventh Amendment immunity and that Ex parte Young, 209 U. S. 123, does not permit an Indian tribe to force good-faith negotia- tions by suing a State's Governor. Held:1. The Eleventh Amendment prevents Congress from authorizing suits by Indian tribes against States to enforce legislation enacted pur- suant to the Indian Commerce Clause. Pp. 54­73. (a) The Eleventh Amendment presupposes that each State is a sov- ereign entity in our federal system and that " `[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without [a State's] consent.' " Hans v. Louisiana, 134 U. S. 1, 13. However, Congress may abrogate the States' sovereign immunity if it has "unequivocally expresse[d] its intent to abrogate the immunity" and has acted "pursuant to a valid exercise of power." Green v. Mansour, 474 U. S. 64, 68. Here, through the numerous references to the "State" in § 2710(d)(7)(B)'s text, Congress provided an "unmistakably clear" statement of its intent to abrogate. Pp. 54­57. (b) The inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on a single question: Was the Act in question passed pursuant to a constitu- tional provision granting Congress such power? This Court has found authority to abrogate under only two constitutional provisions: the 517us1$37Z 02-23-99 16:36:04 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 45 Syllabus Fourteenth Amendment, see, e. g., Fitzpatrick v. Bitzer, 427 U. S. 445, and, in a plurality opinion, the Interstate Commerce Clause, Pennsyl- vania v. Union Gas Co., 491 U. S. 1. The Union Gas plurality found that Congress' power to abrogate came from the States' cession of their sovereignty when they gave Congress plenary power to regulate commerce. Under the rationale of Union Gas, the Indian Commerce Clause is indistinguishable from the Interstate Commerce Clause. Pp. 57­63. (c) However, in the five years since it was decided, Union Gas has proved to be a solitary departure from established law. Reconsidering that decision, none of the policies underlying stare decisis require this Court's continuing adherence to its holding. The decision has been of questionable precedential value, largely because a majority of the Court expressly disagreed with the plurality's rationale. Moreover, the deeply fractured decision has created confusion among the lower courts that have sought to understand and apply it. The plurality's rationale also deviated sharply from this Court's established federalism jurispru- dence and essentially eviscerated the Court's decision in Hans, since the plurality's conclusion-that Congress could under Article I expand the scope of the federal courts' Article III jurisdiction-contradicted the fundamental notion that Article III sets forth the exclusive catalog of permissible federal-court jurisdiction. Thus, Union Gas was wrongly decided and is overruled. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circum- vent the constitutional limitations placed upon federal jurisdiction. Pp. 63­73. 2. The doctrine of Ex parte Young may not be used to enforce § 2710(d)(3) against a state official. That doctrine allows a suit against a state official to go forward, notwithstanding the Eleventh Amendment's jurisdictional bar, where the suit seeks prospective injunctive relief in order to end a continuing federal-law violation. However, where, as here, Congress has prescribed a detailed remedial scheme for the en- forcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an Ex parte Young action. The intricate procedures set forth in § 2710(d)(7) show that Congress intended not only to define, but also significantly to limit, the duty imposed by § 2710(d)(3). The Act mandates only a mod- est set of sanctions against a State, culminating in the Secretary of the Interior prescribing gaming regulations where an agreement is not reached through negotiation or mediation. In contrast, an Ex parte Young action would expose a state official to a federal court's full reme- dial powers, including, presumably, contempt sanctions. Enforcement through an Ex parte Young suit would also make § 2710(d)(7) super- 517us1$37Z 02-23-99 16:36:04 PAGES OPINPGT 46 SEMINOLE TRIBE OF FLA. v. FLORIDA Syllabus fluous, for it is difficult to see why a tribe would suffer through § 2710(d)(7)'s intricate enforcement scheme if Ex parte Young's more complete and more immediate relief were available. The Court is not free to rewrite the statutory scheme in order to approximate what it thinks Congress might have wanted had it known that § 2710(d)(7) was beyond its authority. Pp. 73­76. 11 F. 3d 1016, affirmed. Rehnquist, C. J., delivered the opinion of the Court, in which O'Con- nor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 76. Souter, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 100. Bruce S. Rogow argued the cause for petitioner. With him on the briefs were Beverly A. Pohl, Jerry C. Straus, Michael L. Roy, Judith A. Shapiro, Eugene Gressman, and John J. Gibbons. Solicitor General Days argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Irving L. Gornstein, Edward J. Shawaker, and Anne S. Almy. Jonathan A. Glogau, Assistant Attorney General of Florida, argued the cause for respondents. With him on the brief was Robert A. Butterworth, Attorney General.* *Briefs of amici curiae urging reversal were filed for the Miccosukee Tribe of Indians of Florida by Sonia Escobio O'Donnell; for the National Indian Gaming Association et al. by Jerome L. Levine, Frank R. Law- rence, and Kurt V. BlueDog; for the Poarch Band of Creek Indians et al. by William R. Perry, Donald J. Simon, and Gary Pitchlynn; for the San Manuel Band of Mission Indians et al. by Howard L. Dickstein, Jerome L. Levine, and Frank R. Lawrence; for the Spokane Tribe of Indians et al. by Michael J. Wahoske; and for the Tohono O'Odham Nation et al. by Eric N. Dahlstrom and Robert C. Brauchli. Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Manuel M. Medeiros, Deputy Attorney General, and Thomas F. Gede, Special Assistant Attorney General, Christine O. Gregoire, Attorney Gen- eral of Washington, and Jonathan Tate McCoy, Assistant Attorney Gen- eral, joined by the Attorneys General for their respective jurisdictions as 517us1$37H 02-23-99 16:36:04 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 47 Opinion of the Court Chief Justice Rehnquist delivered the opinion of the Court. The Indian Gaming Regulatory Act provides that an In- dian tribe may conduct certain gaming activities only in con- formance with a valid compact between the tribe and the State in which the gaming activities are located. 102 Stat. 2475, 25 U. S. C. § 2710(d)(1)(C). The Act, passed by Con- gress under the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, imposes upon the States a duty to negotiate in good faith with an Indian tribe toward the formation of a compact, § 2710(d)(3)(A), and authorizes a tribe to bring suit in federal court against a State in order to compel perform- ance of that duty, § 2710(d)(7). We hold that notwithstand- ing Congress' clear intent to abrogate the States' sovereign immunity, the Indian Commerce Clause does not grant Con- gress that power, and therefore § 2710(d)(7) cannot grant ju- risdiction over a State that does not consent to be sued. We further hold that the doctrine of Ex parte Young, 209 U. S. 123 (1908), may not be used to enforce § 2710(d)(3) against a state official. follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, Margery S. Bronster of Hawaii, Alan Lance of Idaho, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Jeremiah W. Nixon of Missouri, Joseph P. Ma- zurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, Drew Edmondson of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Mark Barnett of South Dakota, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, and Darrell V. McGraw, Jr., of West Virginia; and for the National Governors' Association et al. by Richard Ruda and Richard G. Taranto. Richard Dauphinais, Arlinda F. Locklear, Francis R. Skenandore, Curtis G. Berkey, and Donald Juneau filed a brief for the Stockbridge- Munsee Indian Community et al. as amici curiae. 517us1$37H 02-23-99 16:36:04 PAGES OPINPGT 48 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court I Congress passed the Indian Gaming Regulatory Act in 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes. See 25 U. S. C. § 2702. The Act divides gaming on Indian lands into three classes-I, II, and III-and provides a different regulatory scheme for each class. Class III gaming-the type with which we are here concerned-is defined as "all forms of gaming that are not class I gaming or class II gaming," § 2703(8), and includes such things as slot machines, casino games, banking card games, dog racing, and lotteries.1 It is the most heavily regulated of the three classes. The Act provides that class III gaming is lawful only where it is: (1) authorized by an ordinance or resolution that (a) is adopted by the governing body of the Indian tribe, (b) satisfies cer- tain statutorily prescribed requirements, and (c) is approved by the National Indian Gaming Commission; (2) located in a State that permits such gaming for any purpose by any person, organization, or entity; and (3) "conducted in con- formance with a Tribal-State compact entered into by the 1 Class I gaming "means social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations," 25 U. S. C. § 2703(6), and is left by the Act to "the exclusive jurisdiction of the Indian tribes," § 2710(a)(1). Class II gaming is more extensively defined to include bingo, games similar to bingo, nonbanking card games not illegal under the laws of the State, and card games actually operated in particular States prior to the passage of the Act. See § 2703(7). Banking card games, electronic games of chance, and slot machines are expressly excluded from the scope of class II gaming. § 2703(B). The Act allows class II gaming where the State "permits such gaming for any purpose by any person, organization or en- tity," and the "governing body of the Indian tribe adopts an ordinance or resolution which is approved by the Chairman" of the National Indian Gaming Commission. § 2710(b)(1). Regulation of class II gaming con- templates a federal role, but places primary emphasis on tribal self- regulation. See §§ 2710(c)(3)­(6). 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 49 Opinion of the Court Indian tribe and the State under paragraph (3) that is in effect." § 2710(d)(1). The "paragraph (3)" to which the last prerequisite of § 2710(d)(1) refers is § 2710(d)(3), which describes the permis- sible scope of a Tribal-State compact, see § 2710(d)(3)(C), and provides that the compact is effective "only when notice of approval by the Secretary [of the Interior] of such compact has been published by the Secretary in the Federal Regis- ter," § 2710(d)(3)(B). More significant for our purposes, however, is that § 2710(d)(3) describes the process by which a State and an Indian tribe begin negotiations toward a Tribal-State compact: "(A) Any Indian tribe having jurisdiction over the In- dian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into nego- tiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact." The State's obligation to "negotiate with the Indian tribe in good faith" is made judicially enforceable by §§ 2710(d) (7)(A)(i) and (B)(i): "(A) The United States district courts shall have ju- risdiction over- "(i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotia- tions with the Indian tribe for the purpose of entering into a Tribal-State compact under paragraph (3) or to conduct such negotiations in good faith . . . . "(B)(i) An Indian tribe may initiate a cause of action described in subparagraph (A)(i) only after the close of the 180-day period beginning on the date on which the 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 50 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court Indian tribe requested the State to enter into negotia- tions under paragraph (3)(A)." Sections 2710(d)(7)(B)(ii)­(vii) describe an elaborate remedial scheme designed to ensure the formation of a Tribal-State compact. A tribe that brings an action under § 2710(d) (7)(A)(i) must show that no Tribal-State compact has been entered and that the State failed to respond in good faith to the tribe's request to negotiate; at that point, the burden then shifts to the State to prove that it did in fact negotiate in good faith. § 2710(d)(7)(B)(ii). If the district court con- cludes that the State has failed to negotiate in good faith toward the formation of a Tribal-State compact, then it "shall order the State and Indian Tribe to conclude such a compact within a 60-day period." § 2710(d)(7)(B)(iii). If no compact has been concluded 60 days after the court's order, then "the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact." § 2710(d)(7) (B)(iv). The mediator chooses from between the two pro- posed compacts the one "which best comports with the terms of [the Act] and any other applicable Federal law and with the findings and order of the court," ibid., and submits it to the State and the Indian tribe, § 2710(d)(7)(B)(v). If the State consents to the proposed compact within 60 days of its submission by the mediator, then the proposed compact is "treated as a Tribal-State compact entered into under para- graph (3)." § 2710(d)(7)(B)(vi). If, however, the State does not consent within that 60-day period, then the Act provides that the mediator "shall notify the Secretary [of the Inte- rior]" and that the Secretary "shall prescribe . . . procedures . . . under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction." § 2710(d)(7)(B)(vii).2 2 Sections 2710(d)(7)(B)(ii)­(vii) provide in full: "(ii) In any action described in subparagraph (A)(i), upon the introduc- tion of evidence by an Indian tribe that- 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 51 Opinion of the Court In September 1991, the Seminole Tribe of Florida, peti- tioner, sued the State of Florida and its Governor, Lawton Chiles, respondents. Invoking jurisdiction under 25 U. S. C. "(I) a Tribal-State compact has not been entered into under paragraph (3), and "(II) the State did not respond to the request of the Indian tribe to negotiate such a compact or did not respond to such request in good faith, the burden of proof shall be upon the State to prove that the State has negotiated with the Indian tribe in good faith to conclude a Tribal-State compact governing the conduct of gaming activities. "(iii) If, in any action described in subparagraph (A)(i), the court finds that the State has failed to negotiate in good faith with the Indian tribe to conclude a Tribal-State compact governing the conduct of gaming ac- tivities, the court shall order the State and the Indian Tribe to conclude such a compact within a 60-day period. In determining in such an action whether a State has negotiated in good faith, the court- "(I) may take into account the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activ- ities, and "(II) shall consider any demand by the State for direct taxation of the Indian tribe or of any Indian lands as evidence that the State has not negotiated in good faith. "(iv) If a State and an Indian tribe fail to conclude a Tribal-State com- pact . . . within the 60-day period provided in the order of a court issued under clause (iii), the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact. The mediator shall select from the two proposed compacts the one which best comports with the terms of this chapter and any other applicable Federal law and with the findings and order of the court. "(v) The mediator appointed by the court under clause (iv) shall submit to the State and the Indian tribe the compact selected by the mediator under clause (iv). "(vi) If a State consents to a proposed compact during the 60-day period beginning on the date on which the proposed compact is submitted by the mediator to the State under clause (v), the proposed compact shall be treated as a Tribal-State compact entered into under paragraph (3). "(vii) If the State does not consent during the 60-day period described in clause (vi) to a proposed compact submitted by a mediator under clause (v), the mediator shall notify the Secretary and the Secretary shall pre- scribe, in consultation with the Indian tribe, procedures- [Footnote 2 is continued on p. 52] 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 52 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court § 2710(d)(7)(A), as well as 28 U. S. C. §§ 1331 and 1362, peti- tioner alleged that respondents had "refused to enter into any negotiation for inclusion of [certain gaming activities] in a tribal-state compact," thereby violating the "requirement of good faith negotiation" contained in § 2710(d)(3). Peti- tioner's Complaint ¶ 24, see App. 18. Respondents moved to dismiss the complaint, arguing that the suit violated the State's sovereign immunity from suit in federal court. The District Court denied respondents' motion, 801 F. Supp. 655 (SD Fla. 1992), and respondents took an interlocutory appeal of that decision. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139 (1993) (col- lateral order doctrine allows immediate appellate review of order denying claim of Eleventh Amendment immunity). The Court of Appeals for the Eleventh Circuit reversed the decision of the District Court, holding that the Eleventh Amendment barred petitioner's suit against respondents.3 11 F. 3d 1016 (1994). The court agreed with the District Court that Congress in § 2710(d)(7) intended to abrogate the States' sovereign immunity, and also agreed that the Act had been passed pursuant to Congress' power under the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. The court disagreed with the District Court, however, that the Indian "(I) which are consistent with the proposed compact selected by the mediator under clause (iv), the provisions of this chapter, and the relevant provisions of the laws of the State, and "(II) under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction." 3 The Eleventh Circuit consolidated petitioner's appeal with an appeal from another suit brought under § 2710(d)(7)(A)(i) by a different Indian tribe. Although the District Court in that case had granted the defend- ants' motions to dismiss, the legal issues presented by the two appeals were virtually identical. See Poarch Band of Creek Indians v. Alabama, 776 F. Supp. 550 (SD Ala. 1991) (Eleventh Amendment bars suit against State), and 784 F. Supp. 1549 (SD Ala. 1992) (Eleventh Amendment bars suit against Governor). 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 53 Opinion of the Court Commerce Clause grants Congress the power to abrogate a State's Eleventh Amendment immunity from suit, and con- cluded therefore that it had no jurisdiction over petitioner's suit against Florida. The court further held that Ex parte Young, 209 U. S. 123 (1908), does not permit an Indian tribe to force good-faith negotiations by suing the Governor of a State. Finding that it lacked subject-matter jurisdiction, the Eleventh Circuit remanded to the District Court with directions to dismiss petitioner's suit.4 Petitioner sought our review of the Eleventh Circuit's decision,5 and we granted certiorari, 513 U. S. 1125 (1995), in order to consider two questions: (1) Does the Eleventh Amendment prevent Congress from authorizing suits by In- dian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause?; and (2) Does the doctrine of Ex parte Young permit suits against a State's Governor for prospective injunctive relief to enforce the good-faith bargaining requirement of the Act? We answer the first question in the affirmative, the second in the negative, and we therefore affirm the Eleventh Circuit's dismissal of petitioner's suit.6 4 Following its conclusion that petitioner's suit should be dismissed, the Court of Appeals went on to consider how § 2710(d)(7) would operate in the wake of its decision. The court decided that those provisions of § 2710(d)(7) that were problematic could be severed from the rest of the section, and read the surviving provisions of § 2710(d)(7) to provide an Indian tribe with immediate recourse to the Secretary of the Interior from the dismissal of a suit against a State. 11 F. 3d 1016, 1029 (1994). 5 Respondents filed a cross-petition, No. 94­219, challenging only the Eleventh Circuit's modification of § 2710(d)(7), see n. 4, supra. That peti- tion is still pending. 6 While the appeal was pending before the Eleventh Circuit, the District Court granted respondents' earlier filed summary judgment motion, find- ing that Florida had fulfilled its obligation under the Act to negotiate in good faith. The Eleventh Circuit has stayed its review of that decision pending the disposition of this case. 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 54 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although the text of the Amendment would appear to re- strict only the Article III diversity jurisdiction of the federal courts, "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms." Blatchford v. Native Village of Noa- tak, 501 U. S. 775, 779 (1991). That presupposition, first ob- served over a century ago in Hans v. Louisiana, 134 U. S. 1 (1890), has two parts: first, that each State is a sovereign entity in our federal system; and second, that " `[i]t is inher- ent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,' " id., at 13 (empha- sis deleted), quoting The Federalist No. 81, p. 487 (C. Ros- siter ed. 1961) (A. Hamilton). See also Puerto Rico Aque- duct and Sewer Authority, supra, at 146 ("The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sover- eign immunity"). For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States "was not contemplated by the Constitution when es- tablishing the judicial power of the United States." Hans, supra, at 15.7 7 E. g., North Carolina v. Temple, 134 U. S. 22, 30 (1890); Fitts v. McGhee, 172 U. S. 516, 524 (1899); Bell v. Mississippi, 177 U. S. 693 (1900); Smith v. Reeves, 178 U. S. 436, 446 (1900); Palmer v. Ohio, 248 U. S. 32, 34 (1918); Duhne v. New Jersey, 251 U. S. 311, 313 (1920); Ex parte New York, 256 U. S. 490, 497 (1921); Missouri v. Fiske, 290 U. S. 18, 26 (1933); Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944); Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459, 464 (1945); Georgia Rail- road & Banking Co. v. Redwine, 342 U. S. 299, 304, n. 13 (1952); Parden v. Terminal Railway of Ala. Docks Dept., 377 U. S. 184, 186 (1964); United 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 55 Opinion of the Court Here, petitioner has sued the State of Florida and it is undisputed that Florida has not consented to the suit. See Blatchford, supra, at 782 (States by entering into the Consti- tution did not consent to suit by Indian tribes). Petitioner nevertheless contends that its suit is not barred by state sov- ereign immunity. First, it argues that Congress through the Act abrogated the States' sovereign immunity. Alterna- tively, petitioner maintains that its suit against the Governor may go forward under Ex parte Young, supra. We consider each of those arguments in turn. II Petitioner argues that Congress through the Act abro- gated the States' immunity from suit. In order to deter- mine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has "unequivocally expresse[d] its intent to abrogate the immu- nity," Green v. Mansour, 474 U. S. 64, 68 (1985); and second, whether Congress has acted "pursuant to a valid exercise of power," ibid. A Congress' intent to abrogate the States' immunity from suit must be obvious from "a clear legislative statement." Blatchford, supra, at 786. This rule arises from a recogni- tion of the important role played by the Eleventh Amend- States v. Mississippi, 380 U. S. 128, 140 (1965); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 280 (1973); Edelman v. Jordan, 415 U. S. 651, 662­663 (1974); Fitzpatrick v. Bitzer, 427 U. S. 445 (1976); Cory v. White, 457 U. S. 85 (1982); Pennhurst State School and Hospital v. Halder- man, 465 U. S. 89, 97­100 (1984); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 237­238 (1985); Welch v. Texas Dept. of Highways and Pub- lic Transp., 483 U. S. 468, 472­474 (1987) (plurality opinion); Dellmuth v. Muth, 491 U. S. 223, 227­229, and n. 2 (1989); Port Authority Trans- Hudson Corp. v. Feeney, 495 U. S. 299, 304 (1990); Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991); Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144 (1993). 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 56 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court ment and the broader principles that it reflects. See Atas- cadero State Hospital v. Scanlon, 473 U. S. 234, 238­239 (1985); Quern v. Jordan, 440 U. S. 332, 345 (1979). In Atas- cadero, we held that "[a] general authorization for suit in federal court is not the kind of unequivocal statutory lan- guage sufficient to abrogate the Eleventh Amendment." 473 U. S., at 246; see also Blatchford, supra, at 786, n. 4 ("The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim") (emphases deleted). Rather, as we said in Dellmuth v. Muth, 491 U. S. 223 (1989): "To temper Congress' acknowledged powers of abroga- tion with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure, we have applied a simple but stringent test: `Congress may abrogate the States' constitutionally se- cured immunity from suit in federal court only by mak- ing its intention unmistakably clear in the language of the statute.' " Id., at 227­228. See also Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 474 (1987) (plurality opinion). Here, we agree with the parties, with the Eleventh Circuit in the decision below, 11 F. 3d, at 1024, and with virtually every other court that has confronted the question8 that Con- gress has in § 2710(d)(7) provided an "unmistakably clear" statement of its intent to abrogate. Section 2710(d)(7)(A)(i) 8 See Ponca Tribe of Oklahoma v. Oklahoma, 37 F. 3d 1422, 1427­1428 (CA10 1994), cert. pending, No. 94­1029; Spokane Tribe v. Washington, 28 F. 3d 991, 994­995 (CA9 1994); Cheyenne River Sioux Tribe v. South Da- kota, 3 F. 3d 273, 280­281 (CA8 1993); Ponca Tribe of Oklahoma v. Okla- homa, 834 F. Supp. 1341, 1345 (WD Okla. 1992); Maxam v. Lower Sioux Indian Community of Minnesota, 829 F. Supp. 277 (D. Minn. 1993); Kicka- poo Tribe of Indians v. Kansas, 818 F. Supp. 1423, 1427 (D. Kan. 1993); 801 F. Supp. 655, 658 (SD Fla. 1992) (case below); Sault Ste. Marie Tribe of Chippewa Indians v. Michigan, 800 F. Supp. 1484, 1488­1489 (WD Mich. 1992); Poarch Band of Creek Indians v. Alabama, 776 F. Supp., at 557­558. 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 57 Opinion of the Court vests jurisdiction in "[t]he United States district courts . . . over any cause of action . . . arising from the failure of a State to enter into negotiations . . . or to conduct such nego- tiations in good faith." Any conceivable doubt as to the identity of the defendant in an action under § 2710(d)(7)(A)(i) is dispelled when one looks to the various provisions of § 2710(d)(7)(B), which describe the remedial scheme available to a tribe that files suit under § 2710(d)(7)(A)(i). Section 2710(d)(7)(B)(ii)(II) provides that if a suing tribe meets its burden of proof, then the "burden of proof shall be upon the State . . ."; § 2710(d)(7)(B)(iii) states that if the court "finds that the State has failed to negotiate in good faith . . . , the court shall order the State . . ."; § 2710(d)(7)(B)(iv) provides that "the State shall . . . submit to a mediator appointed by the court" and subsection (B)(v) of § 2710(d)(7) states that the mediator "shall submit to the State." Sections 2710(d) (7)(B)(vi) and (vii) also refer to the "State" in a context that makes it clear that the State is the defendant to the suit brought by an Indian tribe under § 2710(d)(7)(A)(i). In sum, we think that the numerous references to the "State" in the text of § 2710(d)(7)(B) make it indubitable that Congress in- tended through the Act to abrogate the States' sovereign immunity from suit.9 B Having concluded that Congress clearly intended to abro- gate the States' sovereign immunity through § 2710(d)(7), we 9 Justice Souter, in his dissenting opinion, argues that in order to avoid a constitutional question, we should interpret the Act to provide only a suit against state officials rather than a suit against the State itself. Post, at 182. But in light of the plain text of § 2710(d)(7)(B), we disagree with the dissent's assertion that the Act can reasonably be read in that way. "We cannot press statutory construction `to the point of disingenu- ous evasion' even to avoid a constitutional question." See United States v. Locke, 471 U. S. 84, 96 (1985), quoting George Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933) (Cardozo, J.). We already have found the clear statement rule satisfied, and that finding renders the preference for avoiding a constitutional question inapplicable. 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 58 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court turn now to consider whether the Act was passed "pursuant to a valid exercise of power." Green v. Mansour, 474 U. S., at 68. Before we address that question here, however, we think it necessary first to define the scope of our inquiry. Petitioner suggests that one consideration weighing in favor of finding the power to abrogate here is that the Act authorizes only prospective injunctive relief rather than ret- roactive monetary relief. But we have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment. See, e. g., Cory v. White, 457 U. S. 85, 90 (1982) ("It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought"). We think it follows a fortiori from this proposition that the type of relief sought is irrelevant to whether Congress has power to abrogate States' immunity. The Eleventh Amendment does not exist solely in order to "preven[t] federal-court judg- ments that must be paid out of a State's treasury," Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 48 (1994); it also serves to avoid "the indignity of subjecting a State to the coercive process of judicial tribunals at the in- stance of private parties," Puerto Rico Aqueduct and Sewer Authority, 506 U. S., at 146 (internal quotation marks omitted). Similarly, petitioner argues that the abrogation power is validly exercised here because the Act grants the States a power that they would not otherwise have, viz., some meas- ure of authority over gaming on Indian lands. It is true enough that the Act extends to the States a power withheld from them by the Constitution. See California v. Cabazon Band of Mission Indians, 480 U. S. 202 (1987). Neverthe- less, we do not see how that consideration is relevant to the question whether Congress may abrogate state sovereign immunity. The Eleventh Amendment immunity may not be lifted by Congress unilaterally deciding that it will be re- 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 59 Opinion of the Court placed by grant of some other authority. Cf. Atascadero, 473 U. S., at 246­247 ("[T]he mere receipt of federal funds cannot establish that a State has consented to suit in fed- eral court"). Thus our inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? See, e. g., Fitzpatrick v. Bitzer, 427 U. S. 445, 452­456 (1976). Previously, in conduct- ing that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had funda- mentally altered the balance of state and federal power struck by the Constitution. Id., at 455. We noted that § 1 of the Fourteenth Amendment contained prohibitions ex- pressly directed at the States and that § 5 of the Amendment expressly provided that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." See id., at 453 (internal quotation marks omitted). We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth Amend- ment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment. In only one other case has congressional abrogation of the States' Eleventh Amendment immunity been upheld. In Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989), a plural- ity of the Court found that the Interstate Commerce Clause, Art. I, § 8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be "incomplete without the au- thority to render States liable in damages." 491 U. S., at 19­20. Justice White added the fifth vote necessary to the result in that case, but wrote separately in order to express 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 60 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court that he "[did] not agree with much of [the plurality's] reason- ing." Id., at 57 (opinion concurring in judgment in part and dissenting in part). In arguing that Congress through the Act abrogated the States' sovereign immunity, petitioner does not challenge the Eleventh Circuit's conclusion that the Act was passed pursu- ant to neither the Fourteenth Amendment nor the Interstate Commerce Clause. Instead, accepting the lower court's con- clusion that the Act was passed pursuant to Congress' power under the Indian Commerce Clause, petitioner now asks us to consider whether that Clause grants Congress the power to abrogate the States' sovereign immunity. Petitioner begins with the plurality decision in Union Gas and contends that "[t]here is no principled basis for finding that congressional power under the Indian Commerce Clause is less than that conferred by the Interstate Commerce Clause." Brief for Petitioner 17. Noting that the Union Gas plurality found the power to abrogate from the "ple- nary" character of the grant of authority over interstate commerce, petitioner emphasizes that the Interstate Com- merce Clause leaves the States with some power to regulate, see, e. g., West Lynn Creamery, Inc. v. Healy, 512 U. S. 186 (1994), whereas the Indian Commerce Clause makes "Indian relations . . . the exclusive province of federal law." County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 234 (1985). Contending that the Indian Commerce Clause vests the Federal Government with "the duty of protect- [ing]" the tribes from "local ill feeling" and "the people of the States," United States v. Kagama, 118 U. S. 375, 383­384 (1886), petitioner argues that the abrogation power is neces- sary "to protect the tribes from state action denying feder- ally guaranteed rights." Brief for Petitioner 20. Respondents dispute petitioner's analogy between the In- dian Commerce Clause and the Interstate Commerce Clause. They note that we have recognized that "the Interstate Commerce and Indian Commerce Clauses have very differ- 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 61 Opinion of the Court ent applications," Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989), and from that they argue that the two provisions are "wholly dissimilar." Brief for Respond- ents 21. Respondents contend that the Interstate Com- merce Clause grants the power of abrogation only because Congress' authority to regulate interstate commerce would be "incomplete" without that "necessary" power. Id., at 23, citing Union Gas, supra, at 19­20. The Indian Commerce Clause is distinguishable, respondents contend, because it gives Congress complete authority over the Indian tribes. Therefore, the abrogation power is not "necessary" to Con- gress' exercise of its power under the Indian Commerce Clause.10 Both parties make their arguments from the plurality deci- sion in Union Gas, and we, too, begin there. We think it clear that Justice Brennan's opinion finds Congress' power to abrogate under the Interstate Commerce Clause from the States' cession of their sovereignty when they gave Con- gress plenary power to regulate interstate commerce. See Union Gas, 491 U. S., at 17 ("The important point . . . is that the provision both expands federal power and contracts state power"). Respondents' focus elsewhere is misplaced. While the plurality decision states that Congress' power under the Interstate Commerce Clause would be incomplete without the power to abrogate, that statement is made solely in order to emphasize the broad scope of Congress' authority over interstate commerce. Id., at 19­20. Moreover, re- spondents' rationale would mean that where Congress has 10 Respondents also contend that the Act mandates state regulation of Indian gaming and therefore violates the Tenth Amendment by allowing federal officials to avoid political accountability for those actions for which they are in fact responsible. See New York v. United States, 505 U. S. 144 (1992). This argument was not considered below by either the Eleventh Circuit or the District Court, and is not fairly within the question pre- sented. Therefore we do not consider it here. See this Court's Rule 14.1; Yee v. Escondido, 503 U. S. 519 (1992). 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 62 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court less authority, and the States have more, Congress' means for exercising that power must be greater. We read the plu- rality opinion to provide just the opposite. Indeed, it was in those circumstances where Congress exercised complete authority that Justice Brennan thought the power to abro- gate most necessary. Id., at 20 ("Since the States may not legislate at all in [the aforementioned] situations, a conclu- sion that Congress may not create a cause of action for money damages against the States would mean that no one could do so. And in many situations, it is only money dam- ages that will carry out Congress' legitimate objectives under the Commerce Clause"). Following the rationale of the Union Gas plurality, our inquiry is limited to determining whether the Indian Com- merce Clause, like the Interstate Commerce Clause, is a grant of authority to the Federal Government at the expense of the States. The answer to that question is obvious. If anything, the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear enough from the fact that the States still exer- cise some authority over interstate trade but have been di- vested of virtually all authority over Indian commerce and Indian tribes. Under the rationale of Union Gas, if the States' partial cession of authority over a particular area includes cession of the immunity from suit, then their virtu- ally total cession of authority over a different area must also include cession of the immunity from suit. See id., at 42 (Scalia, J., joined by Rehnquist, C. J., and O'Connor and Kennedy, JJ., dissenting) ("[I]f the Article I commerce power enables abrogation of state sovereign immunity, so do all the other Article I powers"); see Ponca Tribe of Okla- homa v. Oklahoma, 37 F. 3d 1422, 1428 (CA10 1994) (Indian Commerce Clause grants power to abrogate), cert. pending, No. 94­1029; Cheyenne River Sioux Tribe v. South Dakota, 3 F. 3d 273, 281 (CA8 1993) (same); cf. Chavez v. Arte Publico 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 63 Opinion of the Court Press, 59 F. 3d 539, 546­547 (CA5 1995) (After Union Gas, Copyright Clause, U. S. Const., Art. I, § 8, cl. 8, must grant Congress power to abrogate). We agree with petitioner that the plurality opinion in Union Gas allows no principled distinction in favor of the States to be drawn between the Indian Commerce Clause and the Interstate Commerce Clause. Respondents argue, however, that we need not conclude that the Indian Commerce Clause grants the power to abro- gate the States' sovereign immunity. Instead, they contend that if we find the rationale of the Union Gas plurality to extend to the Indian Commerce Clause, then "Union Gas should be reconsidered and overruled." Brief for Respond- ents 25. Generally, the principle of stare decisis, and the interests that it serves, viz., "the evenhanded, predictable, and consistent development of legal principles, . . . reliance on judicial decisions, and . . . the actual and perceived integ- rity of the judicial process," Payne v. Tennessee, 501 U. S. 808, 827 (1991), counsel strongly against reconsideration of our precedent. Nevertheless, we always have treated stare decisis as a "principle of policy," Helvering v. Hallock, 309 U. S. 106, 119 (1940), and not as an "inexorable command," Payne, 501 U. S., at 828. "[W]hen governing decisions are unworkable or are badly reasoned, `this Court has never felt constrained to follow precedent.' " Id., at 827 (quoting Smith v. Allwright, 321 U. S. 649, 665 (1944)). Our willing- ness to reconsider our earlier decisions has been "particu- larly true in constitutional cases, because in such cases `cor- rection through legislative action is practically impossible.' " Payne, supra, at 828 (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 407 (1932) (Brandeis, J., dissenting)). The Court in Union Gas reached a result without an ex- pressed rationale agreed upon by a majority of the Court. We have already seen that Justice Brennan's opinion re- ceived the support of only three other Justices. See Union Gas, 491 U. S., at 5 (Marshall, Blackmun, and Stevens, JJ., 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 64 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court joined Justice Brennan). Of the other five, Justice White, who provided the fifth vote for the result, wrote separately in order to indicate his disagreement with the plurality's rationale, id., at 57 (opinion concurring in judgment and dis- senting in part), and four Justices joined together in a dissent that rejected the plurality's rationale, id., at 35­45 (Scalia, J., dissenting, joined by Rehnquist, C. J., and O'Connor and Kennedy, JJ.). Since it was issued, Union Gas has created confusion among the lower courts that have sought to under- stand and apply the deeply fractured decision. See, e. g., Chavez v. Arte Publico Press, supra, at 543­545 ("Justice White's concurrence must be taken on its face to disavow" the plurality's theory); 11 F. 3d, at 1027 (Justice White's "vague concurrence renders the continuing validity of Union Gas in doubt"). The plurality's rationale also deviated sharply from our es- tablished federalism jurisprudence and essentially eviscer- ated our decision in Hans. See Union Gas, supra, at 36 ("If Hans means only that federal-question suits for money dam- ages against the States cannot be brought in federal court unless Congress clearly says so, it means nothing at all") (Scalia, J., dissenting). It was well established in 1989 when Union Gas was decided that the Eleventh Amendment stood for the constitutional principle that state sovereign im- munity limited the federal courts' jurisdiction under Article III. The text of the Amendment itself is clear enough on this point: "The Judicial power of the United States shall not be construed to extend to any suit . . . ." And our decisions since Hans had been equally clear that the Eleventh Amend- ment reflects "the fundamental principle of sovereign immu- nity [that] limits the grant of judicial authority in Art. III," Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 97­98 (1984); see Union Gas, supra, at 38 (" `[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private par- ties against a State without consent given . . . ' ") (Scalia, 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 65 Opinion of the Court J., dissenting) (quoting Ex parte New York, 256 U. S. 490, 497 (1921)); see also cases cited at n. 7, supra. As the dissent in Union Gas recognized, the plurality's conclusion-that Con- gress could under Article I expand the scope of the federal courts' jurisdiction under Article III-"contradict[ed] our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal-court jurisdiction." Union Gas, supra, at 39. Never before the decision in Union Gas had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment. Indeed, it had seemed funda- mental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III. Mar- bury v. Madison, 1 Cranch 137 (1803). The plurality's cita- tion of prior decisions for support was based upon what we believe to be a misreading of precedent. See Union Gas, 491 U. S., at 40­41 (Scalia, J., dissenting). The plurality claimed support for its decision from a case holding the unre- markable, and completely unrelated, proposition that the States may waive their sovereign immunity, see id., at 14­15 (citing Parden v. Terminal Railway of Ala. Docks Dept., 377 U. S. 184 (1964)), and cited as precedent propositions that had been merely assumed for the sake of argument in earlier cases, see 491 U. S., at 15 (citing Welch v. Texas Dept. of Highways and Public Transp., 483 U. S., at 475­476, and n. 5, and County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S., at 252). The plurality's extended reliance upon our decision in Fitz- patrick v. Bitzer, 427 U. S. 445 (1976), that Congress could under the Fourteenth Amendment abrogate the States' sovereign immunity was also, we believe, misplaced. Fitz- patrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, oper- 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 66 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court ated to alter the pre-existing balance between state and fed- eral power achieved by Article III and the Eleventh Amend- ment. Id., at 454. As the dissent in Union Gas made clear, Fitzpatrick cannot be read to justify "limitation of the prin- ciple embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution." Union Gas, supra, at 42 (Scalia, J., dissenting). In the five years since it was decided, Union Gas has proved to be a solitary departure from established law. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139 (1993). Reconsidering the decision in Union Gas, we conclude that none of the policies underly- ing stare decisis require our continuing adherence to its hold- ing. The decision has, since its issuance, been of question- able precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality. See Nichols v. United States, 511 U. S. 738, 746 (1994) (the "degree of confusion following a splintered decision . . . is itself a reason for reexamining that decision"). The case in- volved the interpretation of the Constitution and therefore may be altered only by constitutional amendment or revision by this Court. Finally, both the result in Union Gas and the plurality's rationale depart from our established under- standing of the Eleventh Amendment and undermine the accepted function of Article III. We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled. The dissent makes no effort to defend the decision in Union Gas, see post, at 100, but nonetheless would find con- gressional power to abrogate in this case.11 Contending that our decision is a novel extension of the Eleventh Amend- ment, the dissent chides us for "attend[ing]" to dicta. We adhere in this case, however, not to mere obiter dicta, but rather to the well-established rationale upon which the 11 Unless otherwise indicated, all references to the dissent are to the dissenting opinion authored by Justice Souter. 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 67 Opinion of the Court Court based the results of its earlier decisions. When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. Cf. Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 613 (1990) (exclusive basis of a judgment is not dicta) (plurality); County of Alle- gheny v. American Civil Liberties Union, Greater Pitts- burgh Chapter, 492 U. S. 573, 668 (1989) ("As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law") (Kennedy, J., concurring and dissenting); Sheet Metal Workers v. EEOC, 478 U. S. 421, 490 (1986) ("Although technically dicta, . . . an important part of the Court's rationale for the result that it reache[s] . . . is entitled to greater weight . . .") (O'Connor, J., concurring). For over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment. In Princi- pality of Monaco v. Mississippi, 292 U. S. 313 (1934), the Court held that the Eleventh Amendment barred a suit brought against a State by a foreign state. Chief Justice Hughes wrote for a unanimous Court: "[N]either the literal sweep of the words of Clause one of § 2 of Article III, nor the absence of restriction in the letter of the Eleventh Amendment, permits the conclu- sion that in all controversies of the sort described in Clause one, and omitted from the words of the Eleventh Amendment, a State may be sued without her consent. Thus Clause one specifically provides that the judicial Power shall extend `to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.' But, although a case may arise under the Constitution and laws of the United States, the judicial power does not extend to it if the suit is 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 68 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court sought to be prosecuted against a State, without her consent, by one of her own citizens. . . . "Manifestly, we cannot rest with a mere literal appli- cation of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essen- tial postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still pos- sessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been a `surrender of this immunity in the plan of the convention.' " Id., at 321­323 (citations and footnote omitted). See id., at 329­330; see also Pennhurst, 465 U. S., at 98 ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III"); Ex parte New York, 256 U. S., at 497 ("[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . ."). It is true that we have not had occasion previously to apply established Eleventh Amendment principles to the question whether Congress has the power to abrogate state sovereign immu- nity (save in Union Gas). But consideration of that ques- tion must proceed with fidelity to this century-old doctrine. The dissent, to the contrary, disregards our case law in favor of a theory cobbled together from law review articles and its own version of historical events. The dissent cites not a single decision since Hans (other than Union Gas) that supports its view of state sovereign immunity, instead rely- ing upon the now-discredited decision in Chisholm v. Geor- gia, 2 Dall. 419 (1793). See, e. g., post, at 152, n. 47. Its un- documented and highly speculative extralegal explanation of 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 69 Opinion of the Court the decision in Hans is a disservice to the Court's traditional method of adjudication. See post, at 120­123. The dissent mischaracterizes the Hans opinion. That de- cision found its roots not solely in the common law of Eng- land, but in the much more fundamental " `jurisprudence in all civilized nations.' " Hans, 134 U. S., at 17, quoting Beers v. Arkansas, 20 How. 527, 529 (1858); see also The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton) (sovereign immunity "is the general sense and the general practice of mankind"). The dissent's proposition that the common law of England, where adopted by the States, was open to change by the Legislature is wholly unexceptionable and largely be- side the point: that common law provided the substantive rules of law rather than jurisdiction. Cf. Monaco, supra, at 323 (state sovereign immunity, like the requirement that there be a "justiciable" controversy, is a constitutionally grounded limit on federal jurisdiction). It also is notewor- thy that the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment. Hans-with a much closer vantage point than the dis- sent-recognized that the decision in Chisholm was contrary to the well-understood meaning of the Constitution. The dissent's conclusion that the decision in Chisholm was "rea- sonable," post, at 106, certainly would have struck the Fram- ers of the Eleventh Amendment as quite odd: That decision created "such a shock of surprise that the Eleventh Amend- ment was at once proposed and adopted." Monaco, supra, at 325. The dissent's lengthy analysis of the text of the Eleventh Amendment is directed at a straw man-we long have recognized that blind reliance upon the text of the Elev- enth Amendment is " `to strain the Constitution and the law to a construction never imagined or dreamed of.' " Monaco, supra, at 326, quoting Hans, supra, at 15. The text dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 70 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court have federal-question jurisdiction at the time the Amend- ment was passed (and would not have it until 1875), it seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States. That same consideration causes the dissent's criticism of the views of Marshall, Madison, and Hamilton to ring hollow. The dissent cites statements made by those three influential Framers, the most natural reading of which would preclude all federal jurisdiction over an unconsenting State.12 Strug- gling against this reading, however, the dissent finds signifi- cant the absence of any contention that sovereign immu- nity would affect the new federal-question jurisdiction. Post, at 142­150. But the lack of any statute vesting general federal-question jurisdiction in the federal courts until much later makes the dissent's demand for greater specificity about a then-dormant jurisdiction overly exacting.13 12 We note here also that the dissent quotes selectively from the Fram- ers' statements that it references. The dissent cites the following, for instance, as a statement made by Madison: "[T]he Constitution `give[s] a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it.' " Post, at 143 (opinion of Souter, J.). But that statement, perhaps ambiguous when read in isolation, was preceded by the following: "[J]urisdiction in con- troversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal courts. It appears to me that this can have no opera- tion but this:" See 3 J. Elliot, Debates on the Federal Constitution 533 (2d ed. 1836). 13 Although the absence of any discussion dealing with federal-question jurisdiction is therefore unremarkable, what is notably lacking in the Framers' statements is any mention of Congress' power to abrogate the States' immunity. The absence of any discussion of that power is par- ticularly striking in light of the fact that the Framers virtually always were very specific about the exception to state sovereign immunity aris- ing from a State's consent to suit. See, e. g., The Federalist No. 81, pp. 487­488 (C. Rossiter ed. 1961) (A. Hamilton) ("It is inherent in the nature of sovereignty not to be amenable to the suit of an individual with- 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 71 Opinion of the Court In putting forward a new theory of state sovereign immu- nity, the dissent develops its own vision of the political sys- tem created by the Framers, concluding with the statement that "[t]he Framers' principal objectives in rejecting English theories of unitary sovereignty . . . would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held untouchable by any congressional effort to abrogate it." 14 Post, at 157. This sweeping statement ignores the fact that the Nation survived for nearly two centuries without the question of the existence of such power ever being presented to this Court. And Congress itself waited nearly a century before even con- ferring federal-question jurisdiction on the lower federal courts.15 out its consent. . . . Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States and the danger intimated must be merely ideal") (emphasis in the original); 3 Elliot, supra, at 533 (J. Madison) ("It is not in the power of individuals to call any state into court. . . . [The Constitution] can have no operation but this: . . . if a state should condescend to be a party, this court may take cognizance of it"). 14 This argument wholly disregards other methods of ensuring the States' compliance with federal law: The Federal Government can bring suit in federal court against a State, see, e. g., United States v. Texas, 143 U. S. 621, 644­645 (1892) (finding such power necessary to the "perma- nence of the Union"); an individual can bring suit against a state officer in order to ensure that the officer's conduct is in compliance with federal law, see, e. g., Ex parte Young, 209 U. S. 123 (1908); and this Court is empow- ered to review a question of federal law arising from a state-court decision where a State has consented to suit, see, e. g., Cohens v. Virginia, 6 Wheat. 264 (1821). 15 Justice Stevens, in his dissenting opinion, makes two points that merit separate response. First, he contends that no distinction may be drawn between state sovereign immunity and the immunity enjoyed by state and federal officials. But even assuming that the latter has no con- stitutional foundation, the distinction is clear: The Constitution specifically recognizes the States as sovereign entities, while government officials enjoy no such constitutional recognition. Second, Justice Stevens criti- 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 72 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissi- pate when the subject of the suit is an area, like the regula- tion of Indian commerce, that is under the exclusive control of the Federal Government. Even when the Constitution vests in Congress complete lawmaking authority over a par- ticular area, the Eleventh Amendment prevents congres- sional authorization of suits by private parties against uncon- senting States.16 The Eleventh Amendment restricts the cizes our prior decisions applying the "clear statement rule," suggesting that they were based upon an understanding that Article I allowed Con- gress to abrogate state sovereign immunity. His criticism, however, ig- nores the fact that many of those cases arose in the context of a statute passed under the Fourteenth Amendment, where Congress' authority to abrogate is undisputed. See, e. g., Quern v. Jordan, 440 U. S. 332 (1979). And a more fundamental flaw of the criticism is its failure to recognize that both the doctrine requiring avoidance of constitutional questions, and principles of federalism, require us always to apply the clear statement rule before we consider the constitutional question whether Congress has the power to abrogate. 16 Justice Stevens understands our opinion to prohibit federal juris- diction over suits to enforce the bankruptcy, copyright, and antitrust laws against the States. He notes that federal jurisdiction over those statu- tory schemes is exclusive, and therefore concludes that there is "no rem- edy" for state violations of those federal statutes. Post, at 78, n. 1. That conclusion is exaggerated both in its substance and in its signifi- cance. First, Justice Stevens' statement is misleadingly overbroad. We have already seen that several avenues remain open for ensuring state compliance with federal law. See n. 14, supra. Most notably, an individ- ual may obtain injunctive relief under Ex parte Young in order to remedy a state officer's ongoing violation of federal law. See n. 14, supra. Sec- ond, contrary to the implication of Justice Stevens' conclusion, it has not been widely thought that the federal antitrust, bankruptcy, or copyright statutes abrogated the States' sovereign immunity. This Court never has awarded relief against a State under any of those statutory schemes; in the decision of this Court that Justice Stevens cites (and somehow labels "incompatible" with our decision here), we specifically reserved the ques- tion whether the Eleventh Amendment would allow a suit to enforce the antitrust laws against a State. See Goldfarb v. Virginia State Bar, 421 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 73 Opinion of the Court judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. Petitioner's suit against the State of Florida must be dismissed for a lack of jurisdiction. III Petitioner argues that we may exercise jurisdiction over its suit to enforce § 2710(d)(3) against the Governor notwith- standing the jurisdictional bar of the Eleventh Amendment. Petitioner notes that since our decision in Ex parte Young, 209 U. S. 123 (1908), we often have found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to "end a continuing violation of federal law." Green v. Mansour, 474 U. S., at 68. The situation presented here, however, is sufficiently different from that giving rise to the traditional Ex parte Young action so as to preclude the availability of that doctrine. Here, the "continuing violation of federal law" alleged by petitioner is the Governor's failure to bring the State into compliance with § 2710(d)(3). But the duty to negotiate imposed upon the State by that statutory provision does not stand alone. Rather, as we have seen, supra, at 49­50, Congress passed § 2710(d)(3) in conjunction with the care- U. S. 773, 792, n. 22 (1975). Although the copyright and bankruptcy laws have existed practically since our Nation's inception, and the antitrust laws have been in force for over a century, there is no established tradition in the lower federal courts of allowing enforcement of those federal stat- utes against the States. Notably, both Court of Appeals decisions cited by Justice Stevens were issued last year and were based upon Union Gas. See Chavez v. Arte Publico Press, 59 F. 3d 539 (CA5 1995); Matter of Merchants Grain, Inc. v. Mahern, 59 F. 3d 630 (CA7 1995). Indeed, while the Court of Appeals in Chavez allowed the suit against the State to go forward, it expressly recognized that its holding was unprecedented. See Chavez, 59 F. 3d, at 546 ("[W]e are aware of no case that specifically holds that laws passed pursuant to the Copyright Clause can abrogate State immunity"). 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 74 SEMINOLE TRIBE OF FLA. v. FLORIDA Opinion of the Court fully crafted and intricate remedial scheme set forth in § 2710(d)(7). Where Congress has created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary. Schweiker v. Chilicky, 487 U. S. 412, 423 (1988) ("When the design of a Government program suggests that Congress has provided what it consid- ers adequate remedial mechanisms for constitutional viola- tions that may occur in the course of its administration, we have not created additional . . . remedies"). Here, of course, the question is not whether a remedy should be created, but instead is whether the Eleventh Amendment bar should be lifted, as it was in Ex parte Young, in order to allow a suit against a state officer. Nevertheless, we think that the same general principle applies: Therefore, where Congress has prescribed a detailed remedial scheme for the enforce- ment against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young. Here, Congress intended § 2710(d)(3) to be enforced against the State in an action brought under § 2710(d)(7); the intricate procedures set forth in that provision show that Congress intended therein not only to define, but also to limit significantly, the duty imposed by § 2710(d)(3). For example, where the court finds that the State has failed to negotiate in good faith, the only remedy prescribed is an order direct- ing the State and the Indian tribe to conclude a compact within 60 days. And if the parties disregard the court's order and fail to conclude a compact within the 60-day pe- riod, the only sanction is that each party then must submit a proposed compact to a mediator who selects the one which best embodies the terms of the Act. Finally, if the State fails to accept the compact selected by the mediator, the only sanction against it is that the mediator shall notify the Secre- 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 75 Opinion of the Court tary of the Interior who then must prescribe regulations governing class III gaming on the tribal lands at issue. By contrast with this quite modest set of sanctions, an ac- tion brought against a state official under Ex parte Young would expose that official to the full remedial powers of a federal court, including, presumably, contempt sanctions. If § 2710(d)(3) could be enforced in a suit under Ex parte Young, § 2710(d)(7) would have been superfluous; it is difficult to see why an Indian tribe would suffer through the intricate scheme of § 2710(d)(7) when more complete and more imme- diate relief would be available under Ex parte Young.17 Here, of course, we have found that Congress does not have authority under the Constitution to make the State su- able in federal court under § 2710(d)(7). Nevertheless, the fact that Congress chose to impose upon the State a liability 17 Contrary to the claims of the dissent, we do not hold that Congress cannot authorize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme. We find only that Congress did not intend that result in the Indian Gaming Regulatory Act. Although one might argue that the text of § 2710(d)(7)(A)(i), taken alone, is broad enough to encompass both a suit against a State (under an abrogation theory) and a suit against a state official (under an Ex parte Young the- ory), subsection (A)(i) of § 2710(d)(7) cannot be read in isolation from sub- sections (B)(ii)­(vii), which repeatedly refer exclusively to "the State." See supra, at 56­57. In this regard, § 2710(d)(7) stands in contrast to the statutes cited by the dissent as examples where lower courts have found that Congress implicitly authorized suit under Ex parte Young. Compare 28 U. S. C. § 2254(e) (federal court authorized to issue an "order directed to an appropriate State official"); 42 U. S. C. § 11001 (1988 ed.) (requiring "the Governor" of a State to perform certain actions and holding "the Governor" responsible for nonperformance); 33 U. S. C. § 1365(a) (authoriz- ing a suit against "any person" who is alleged to be in violation of relevant water pollution laws). Similarly the duty imposed by the Act-to "nego- tiate . . . in good faith to enter into" a compact with another sovereign- stands distinct in that it is not of the sort likely to be performed by an individual state executive officer or even a group of officers. Cf. State ex rel. Stephan v. Finney, 836 P. 2d 1169, 251 Kan. 559 (1992) (Governor of Kansas may negotiate but may not enter into compact without grant of power from legislature). 517us1$37H 02-23-99 16:36:05 PAGES OPINPGT 76 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting that is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter under § 2710(d)(3). Nor are we free to rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that § 2710(d)(7) was beyond its authority. If that effort is to be made, it should be made by Congress, and not by the federal courts. We hold that Ex parte Young is inapplicable to petitioner's suit against the Governor of Florida, and therefore that suit is barred by the Eleventh Amendment and must be dis- missed for a lack of jurisdiction. IV The Eleventh Amendment prohibits Congress from mak- ing the State of Florida capable of being sued in federal court. The narrow exception to the Eleventh Amendment provided by the Ex parte Young doctrine cannot be used to enforce § 2710(d)(3) because Congress enacted a remedial scheme, § 2710(d)(7), specifically designed for the enforce- ment of that right. The Eleventh Circuit's dismissal of petitioner's suit is hereby affirmed.18 It is so ordered. Justice Stevens, dissenting. This case is about power-the power of the Congress of the United States to create a private federal cause of action against a State, or its Governor, for the violation of a federal right. In Chisholm v. Georgia, 2 Dall. 419 (1793), the entire Court-including Justice Iredell whose dissent provided the blueprint for the Eleventh Amendment-assumed that Con- gress had such power. In Hans v. Louisiana, 134 U. S. 1 (1890)-a case the Court purports to follow today-the Court 18 We do not here consider, and express no opinion upon, that portion of the decision below that provides a substitute remedy for a tribe bringing suit. See 11 F. 3d, at 1029. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 77 Stevens, J., dissenting again assumed that Congress had such power. In Fitz- patrick v. Bitzer, 427 U. S. 445 (1976), and Pennsylvania v. Union Gas Co., 491 U. S. 1, 24 (1989) (Stevens, J., concur- ring), the Court squarely held that Congress has such power. In a series of cases beginning with Atascadero State Hos- pital v. Scanlon, 473 U. S. 234, 238­239 (1985), the Court formulated a special "clear statement rule" to determine whether specific Acts of Congress contained an effective ex- ercise of that power. Nevertheless, in a sharp break with the past, today the Court holds that with the narrow and illogical exception of statutes enacted pursuant to the En- forcement Clause of the Fourteenth Amendment, Congress has no such power. The importance of the majority's decision to overrule the Court's holding in Pennsylvania v. Union Gas Co. cannot be overstated. The majority's opinion does not simply pre- clude Congress from establishing the rather curious statu- tory scheme under which Indian tribes may seek the aid of a federal court to secure a State's good-faith negotiations over gaming regulations. Rather, it prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.1 1 See, e. g., Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989) (holding that a federal court may order a State to pay cleanup costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980); In re Merchants Grain, Inc., 59 F. 3d 630 (CA7 1995) (holding that the Eleventh Amendment does not bar a bankruptcy court from issu- ing a money judgment against a State under the Bankruptcy Code); Cha- vez v. Arte Publico Press, 59 F. 3d 539 (CA5 1995) (holding that a state university could be sued in federal court for infringing an author's copy- right). The conclusion that suits against States may not be brought in federal court is also incompatible with our cases concluding that state enti- ties may be sued for antitrust violations. See, e. g., Goldfarb v. Virginia State Bar, 421 U. S. 773, 791­792 (1975). As federal courts have exclusive jurisdiction over cases arising under these federal laws, the majority's conclusion that the Eleventh Amend- 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 78 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting There may be room for debate over whether, in light of the Eleventh Amendment, Congress has the power to ensure that such a cause of action may be enforced in federal court by a citizen of another State or a foreign citizen. There can be no serious debate, however, over whether Congress has the power to ensure that such a cause of action may be brought by a citizen of the State being sued. Congress' au- thority in that regard is clear. As Justice Souter has convincingly demonstrated, the Court's contrary conclusion is profoundly misguided. De- spite the thoroughness of his analysis, supported by sound reason, history, precedent, and strikingly uniform scholarly commentary, the shocking character of the majority's affront to a coequal branch of our Government merits additional comment. I For the purpose of deciding this case, I can readily assume that Justice Iredell's dissent in Chisholm v. Georgia, 2 Dall., at 429­450, and the Court's opinion in Hans v. Louisiana, 134 U. S. 1 (1890), correctly stated the law that should gov- ern our decision today. As I shall explain, both of those opinions relied on an interpretation of an Act of Congress rather than a want of congressional power to authorize a suit against the State. In concluding that the federal courts could not entertain Chisholm's action against the State of Georgia, Justice Ire- dell relied on the text of the Judiciary Act of 1789, not the State's assertion that Article III did not extend the judicial power to suits against unconsenting States. Justice Iredell argued that, under Article III, federal courts possessed only ment shields States from being sued under them in federal court suggests that persons harmed by state violations of federal copyright, bankruptcy, and antitrust laws have no remedy. See Harris & Kenny, Eleventh Amendment Jurisprudence After Atascadero: The Coming Clash With An- titrust, Copyright, and Other Causes of Action Over Which the Federal Courts Have Exclusive Jurisdiction, 37 Emory L. J. 645 (1988). 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 79 Stevens, J., dissenting such jurisdiction as Congress had provided, and that the Ju- diciary Act expressly limited federal-court jurisdiction to that which could be exercised in accordance with " `the prin- ciples and usages of law.' " Chisholm v. Georgia, 2 Dall., at 434 (quoting § 14 of the Judiciary Act of 1789). He reasoned that the inclusion of this phrase constituted a command to the federal courts to construe their jurisdiction in light of the prevailing common law, a background legal regime that he believed incorporated the doctrine of sovereign im- munity. Chisholm v. Georgia, 2 Dall., at 434­436 (dissent- ing opinion).2 Because Justice Iredell believed that the expansive text of Article III did not prevent Congress from imposing this common-law limitation on federal-court jurisdiction, he con- cluded that judges had no authority to entertain a suit against an unconsenting State.3 At the same time, although he acknowledged that the Constitution might allow Congress to extend federal-court jurisdiction to such an action, he con- cluded that the terms of the Judiciary Act of 1789 plainly had not done so. "[Congress'] direction, I apprehend, we cannot super- sede, because it may appear to us not sufficiently exten- sive. If it be not, we must wait till other remedies are provided by the same authority. From this it is plain that the Legislature did not chuse to leave to our own 2 Because Justice Iredell read the Judiciary Act of 1789 to have incorpo- rated the common law, he did not even conclude that Congress would have to make a clear statement in order to override the common law's recogni- tion of sovereign immunity. 3 Actually, he limited his conclusion to the narrower question whether an action of assumpsit would lie against a State, which he distinguished from the more general question whether a State can ever be sued. Chis- holm v. Georgia, 2 Dall. 419, 430 (1793). He did so because he recognized "that in England, certain judicial proceedings not inconsistent with the sovereignty, may take place against the Crown, but that an action of as- sumpsit will not lie," and because he had "often found a great deal of confusion to arise from taking too large a view at once." Ibid. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 80 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting discretion the path to justice, but has prescribed one of its own. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known, and by their precision calculated to guard against that inno- vating spirit of Courts of Justice, which the Attorney- General in another case reprobated with so much warmth, and with whose sentiments in that particular, I most cordially join." Id., at 434 (emphasis added). For Justice Iredell then, it was enough to assume that Ar- ticle III permitted Congress to impose sovereign immunity as a jurisdictional limitation; he did not proceed to resolve the further question whether the Constitution went so far as to prevent Congress from withdrawing a State's immunity.4 Thus, it would be ironic to construe the Chisholm dissent as precedent for the conclusion that Article III limits Congress' power to determine the scope of a State's sovereign immu- nity in federal court. The precise holding in Chisholm is difficult to state be- cause each of the Justices in the majority wrote his own opinion. They seem to have held, however, not that the Judiciary Act of 1789 precluded the defense of sovereign immunity, but that Article III of the Constitution itself required the Supreme Court to entertain original actions 4 In two sentences at the end of his lengthy opinion, Justice Iredell stated that his then-present view was that the Constitution would not permit a "compulsive suit against a State for the recovery of money." Id., at 449. In light of Justice Iredell's express statement that the only ques- tion before the Court was the propriety of an individual's action for as- sumpsit against a State, an action which, of course, results in a money judgment, see n. 2, supra, this dicta should not be understood to state the general view that the Constitution bars all suits against unconsenting States. Moreover, even as to the limited question whether the Constitu- tion permits actions for money judgments, Justice Iredell took pains to reserve ultimate judgment. Chisholm v. Georgia, 2 Dall., at 449. Thus, nothing in Justice Iredell's two sentences of dicta provides a basis for concluding that Congress lacks the power to authorize the suit for the nonmonetary relief at issue here. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 81 Stevens, J., dissenting against unconsenting States.5 I agree with Justice Iredell that such a construction of Article III is incorrect; that Arti- cle should not then have been construed, and should not now be construed, to prevent Congress from granting States a sovereign immunity defense in such cases.6 That reading of Article III, however, explains why the majority's holding in Chisholm could not have been reversed by a simple statu- tory amendment adopting Justice Iredell's interpretation of the Judiciary Act of 1789. There is a special irony in the fact that the error committed by the Chisholm majority was its decision that this Court, rather than Congress, should define the scope of the sovereign immunity defense. That, of course, is precisely the same error the Court commits today. In light of the nature of the disagreement between Justice Iredell and his colleagues, Chisholm's holding could have been overturned by simply amending the Constitution to re- store to Congress the authority to recognize the doctrine. As it was, the plain text of the Eleventh Amendment would seem to go further and to limit the judicial power itself in a certain class of cases. In doing so, however, the Amend- 5 In this respect, Chisholm v. Georgia should be understood to be of a piece with the debate over judicial power famously joined in Martin v. Hunter's Lessee, 1 Wheat. 304, 337 (1816). There, too, the argument cen- tered on whether Congress had the power to limit the seemingly expan- sive jurisdictional grant that Article III had conferred, not on whether Article III itself provided the relevant limitation. 6 The contention that Article III withdrew Georgia's sovereign immu- nity had special force precisely because Chisholm involved an action prem- ised on the Supreme Court's original jurisdiction. While Article III leaves it to Congress to establish the lower federal courts, and to make exceptions to the Supreme Court's appellate jurisdiction, it specifically mandates that there be a Supreme Court and that it shall be vested with original jurisdiction over those actions in which "a State shall be Party." Art. III, § 2. In light of that language, the Chisholm majority's conclusion that the Supreme Court had a constitutional obligation to take jurisdiction of all suits against States was not implausible. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 82 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting ment's quite explicit text establishes only a partial bar to a federal court's power to entertain a suit against a State.7 Justice Brennan has persuasively explained that the Elev- enth Amendment's jurisdictional restriction is best under- stood to apply only to suits premised on diversity jurisdic- tion, see Atascadero State Hospital v. Scanlon, 473 U. S., at 247 (dissenting opinion), and Justice Scalia has agreed that the plain text of the Amendment cannot be read to apply to federal-question cases. See Pennsylvania v. Union Gas, 491 U. S., at 31 (dissenting opinion).8 Whatever the precise dimensions of the Amendment, its express terms plainly do not apply to all suits brought against unconsenting States.9 7 It should be remembered that at the time of Chisholm, there was a general fear of what Justice Iredell termed the "innovating spirit" of the Federal Judiciary. See, e. g., 3 A. Beveridge, The Life of John Marshall 19­30 (1919) (discussing the consternation that the federal courts' creation of common-law felonies engendered). Thus, there is good reason to be- lieve that the reaction to Chisholm reflected the popular hostility to the Federal Judiciary more than any desire to restrain the National Legislature. 8 Of course, even if the Eleventh Amendment applies to federal-question cases brought by a citizen of another State, its express terms pose no bar to a federal court assuming jurisdiction in a federal-question case brought by an in-state plaintiff pursuant to Congress' express authorization. As that is precisely the posture of the suit before us, and as it was also pre- cisely the posture of the suit at issue in Pennsylvania v. Union Gas, there is no need to decide here whether Congress would be barred from author- izing out-of-state plaintiffs to enforce federal rights against States in fed- eral court. In fact, Justice Brennan left open that question in his dissent in Atascadero State Hospital v. Scanlon, 473 U. S. 234, 288, n. 41 (1985). "When the Court is prepared to embark on a defensible interpretation of the Eleventh Amendment consistent with its history and purposes, the question whether the Amendment bars federal-question or admiralty suits by a noncitizen or alien against a State would be open." Ibid. 9 Under the "plain text" of the Eleventh Amendment, I note that there would appear to be no more basis for the conclusion that States may consent to federal-court jurisdiction in actions brought by out-of-state or foreign citizens than there would be for the view that States should be permitted to consent to the jurisdiction of a federal court in a case that poses no federal question. See, e. g., Owen Equipment & Erection Co. v. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 83 Stevens, J., dissenting The question thus becomes whether the relatively modest jurisdictional bar that the Eleventh Amendment imposes should be understood to reveal that a more general jurisdic- tional bar implicitly inheres in Article III. The language of Article III certainly gives no indication that such an implicit bar exists. That provision's text spe- cifically provides for federal-court jurisdiction over all cases arising under federal law. Moreover, as I have explained, Justice Iredell's dissent argued that it was the Judiciary Act of 1789, not Article III, that prevented the federal courts from entertaining Chisholm's diversity action against Geor- gia. Therefore, Justice Iredell's analysis at least suggests that it was by no means a fixed view at the time of the found- ing that Article III prevented Congress from rendering States suable in federal court by their own citizens. In sum, little more than speculation justifies the conclusion that the Eleventh Amendment's express but partial limitation on the scope of Article III reveals that an implicit but more general one was already in place. II The majority appears to acknowledge that one cannot de- duce from either the text of Article III or the plain terms of Kroger, 437 U. S. 365, 377, n. 21 (1978); Sosna v. Iowa, 419 U. S. 393, 398 (1975); California v. LaRue, 409 U. S. 109, 112­113, n. 3 (1972); American Fire & Casualty Co. v. Finn, 341 U. S. 6, 17­18, and n. 17 (1951); Mitchell v. Maurer, 293 U. S. 237, 244 (1934); Jackson v. Ashton, 8 Pet. 148, 149 (1834). We have, however, construed the Amendment, despite its text, to apply only to unconsenting States. See, e. g., Clark v. Barnard, 108 U. S. 436, 447 (1883). In so doing, we of course left it for Congress to determine whether federal courts should entertain any claim against a State in fed- eral court. A departure from the text to expand the class of plaintiffs to whom the Eleventh Amendment's bar applies would, however, limit Con- gress' authority to exercise its considered judgment as to the propriety of federal-court jurisdiction. The absence of a textual warrant for imposing such a broad limitation on the legislative branch counsels against this Court extratextually imposing one. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 84 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting the Eleventh Amendment that the judicial power does not extend to a congressionally created cause of action against a State brought by one of that State's citizens. Nevertheless, the majority asserts that precedent compels that same con- clusion. I disagree. The majority relies first on our deci- sion in Hans v. Louisiana, 134 U. S. 1 (1890), which involved a suit by a citizen of Louisiana against that State for a claimed violation of the Contracts Clause. The majority suggests that by dismissing the suit, Hans effectively held that federal courts have no power to hear federal-question suits brought by same-state plaintiffs. Hans does not hold, however, that the Eleventh Amend- ment, or any other constitutional provision, precludes federal courts from entertaining actions brought by citizens against their own States in the face of contrary congressional direc- tion. As I have explained before, see Pennsylvania v. Union Gas Co., 491 U. S., at 25­26 (Stevens, J., concurring), and as Justice Souter effectively demonstrates, Hans in- stead reflects, at the most, this Court's conclusion that, as a matter of federal common law, federal courts should decline to entertain suits against unconsenting States. Because Hans did not announce a constitutionally mandated jurisdic- tional bar, one need not overrule Hans, or even question its reasoning, in order to conclude that Congress may direct the federal courts to reject sovereign immunity in those suits not mentioned by the Eleventh Amendment. Instead, one need only follow it. Justice Bradley's somewhat cryptic opinion for the Court in Hans relied expressly on the reasoning of Justice Iredell's dissent in Chisholm, which, of course, was premised on the view that the doctrine of state sovereign immunity was a common-law rule that Congress had directed federal courts to respect, not a constitutional immunity that Congress was powerless to displace. For that reason, Justice Bradley ex- plained that the State's immunity from suit by one of its own 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 85 Stevens, J., dissenting citizens was based not on a constitutional rule but rather on the fact that Congress had not, by legislation, attempted to overcome the common-law presumption of sovereign immu- nity. His analysis so clearly supports the position rejected by the majority today that it is worth quoting at length. "But besides the presumption that no anomalous and unheard of proceedings or suits were intended to be raised up by the Constitution-anomalous and unheard of when the Constitution was adopted-an additional reason why the jurisdiction claimed for the Circuit Court does not exist, is the language of the act of Con- gress by which its jurisdiction is conferred. The words are these: `The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at com- mon law or in equity, . . . arising under the Constitution or laws of the United States, or treaties,' etc.-`Concur- rent with the courts of the several States.' Does not this qualification show that Congress, in legislating to carry the Constitution into effect, did not intend to in- vest its courts with any new and strange jurisdictions? The state courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent ju- risdiction, acquire any such power? It is true that the same qualification existed in the judiciary act of 1789, which was before the court in Chisholm v. Georgia, and the majority of the court did not think that it was suffi- cient to limit the jurisdiction of the Circuit Court. Jus- tice Iredell thought differently. In view of the manner in which that decision was received by the country, the adoption of the Eleventh Amendment, the light of his- tory and the reason of the thing, we think we are at liberty to prefer Justice Iredell's views in this regard." Hans v. Louisiana, 134 U. S., at 18­19. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 86 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting As this passage demonstrates, Hans itself looked to see whether Congress had displaced the presumption that sover- eign immunity obtains. Although the opinion did go to great lengths to establish the quite uncontroversial historical proposition that unconsenting States generally were not sub- ject to suit, that entire discussion preceded the opinion's statutory analysis. See id., at 10­18. Thus, the opinion's thorough historical investigation served only to establish a presumption against jurisdiction that Congress must over- come, not an inviolable jurisdictional restriction that inheres in the Constitution itself. Indeed, the very fact that the Court characterized the doc- trine of sovereign immunity as a "presumption" confirms its assumption that it could be displaced. The Hans Court's inquiry into congressional intent would have been wholly in- appropriate if it had believed that the doctrine of sovereign immunity was a constitutionally inviolable jurisdictional limitation. Thus, Hans provides no basis for the majority's conclusion that Congress is powerless to make States suable in cases not mentioned by the text of the Eleventh Amend- ment. Instead, Hans provides affirmative support for the view that Congress may create federal-court jurisdiction over private causes of action against unconsenting States brought by their own citizens. It is true that the underlying jurisdictional statute in- volved in this case, 28 U. S. C. § 1331, does not itself purport to direct federal courts to ignore a State's sovereign immu- nity any more than did the underlying jurisdictional statute discussed in Hans, the Judiciary Act of 1875. However, un- like in Hans, in this case Congress has, by virtue of the In- dian Gaming Regulatory Act, affirmatively manifested its in- tention to "invest its courts with" jurisdiction beyond the limits set forth in the general jurisdictional statute. 134 U. S., at 18. By contrast, because Hans involved only an implied cause of action based directly on the Constitution, the Judiciary Act of 1875 constituted the sole indication as 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 87 Stevens, J., dissenting to whether Congress intended federal-court jurisdiction to extend to a suit against an unconsenting State.10 Given the nature of the cause of action involved in Hans, as well as the terms of the underlying jurisdictional statute, the Court's decision to apply the common-law doctrine of sovereign immunity in that case clearly should not control the outcome here. The reasons that may support a federal court's hesitancy to construe a judicially crafted constitu- tional remedy narrowly out of respect for a State's sover- eignty do not bear on whether Congress may preclude a State's invocation of such a defense when it expressly estab- lishes a federal remedy for the violation of a federal right. No one has ever suggested that Congress would be power- less to displace the other common-law immunity doctrines that this Court has recognized as appropriate defenses to certain federal claims such as the judicially fashioned rem- edy in Bivens v. Six Unknown Fed. Narcotics Agents, 403 10 In his dissent in Pennsylvania v. Union Gas Co., 491 U. S., at 36­37, Justice Scalia contended that the existence of the Judiciary Act of 1875 at the time of Hans requires one to accept the "gossamer distinction be- tween cases in which Congress has assertedly sought to eliminate state sovereign immunity pursuant to its powers to create and organize courts, and cases in which it has assertedly sought to do so pursuant to some of its other powers," in order to conclude that, in spite of Hans, Congress may authorize federal courts to hear a suit against an unconsenting State. I rely on no such "gossamer distinction" here. Congress has the authority to withdraw sovereign immunity in cases not covered by the Eleventh Amendment under all of its various powers. Nothing in Hans is to the contrary. As the passage quoted above demon- strates, Hans merely concluded that Congress, in enacting the Judiciary Act of 1875, did not manifest a desire to withdraw state sovereign immu- nity with sufficient clarity to overcome the countervailing presumption. Therefore, I rely only on the distinction between a statute that clearly directs federal courts to entertain suits against States, such as the one before us here, and a statute that does not, such as the Judiciary Act of 1875. In light of our repeated application of a clear-statement rule in Eleventh Amendment cases, from Hans onward, I would be surprised to learn that such a distinction is too thin to be acceptable. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 88 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting U. S. 388 (1971). See Mitchell v. Forsyth, 472 U. S. 511 (1985); Harlow v. Fitzgerald, 457 U. S. 800 (1982). Similarly, our cases recognizing qualified officer immunity in 42 U. S. C. § 1983 actions rest on the conclusion that, in passing that statute, Congress did not intend to displace the common-law immunity that officers would have retained under suits premised solely on the general jurisdictional statute. See Tower v. Glover, 467 U. S. 914, 920 (1984). For that reason, the federal common law of officer immunity that Congress meant to incorporate, not a contrary state immunity, applies in § 1983 cases. See Martinez v. California, 444 U. S. 277, 284 (1980). There is no reason why Congress' undoubted power to displace those common-law immunities should be either greater or lesser than its power to displace the common-law sovereign immunity defense. Some of our precedents do state that the sovereign immu- nity doctrine rests on fundamental constitutional "postu- lates" and partakes of jurisdictional aspects rooted in Article III. See ante, at 67­70. Most notably, that reasoning underlies this Court's holding in Principality of Monaco v. Mississippi, 292 U. S. 313 (1934). Monaco is a most inapt precedent for the majority's hold- ing today. That case barred a foreign sovereign from suing a State in an equitable state-law action to recover payments due on state bonds. It did not, however, involve a claim based on federal law. Instead, the case concerned a purely state-law question to which the State had interposed a fed- eral defense. Id., at 317. Thus, Monaco reveals little about the power of Congress to create a private federal cause of action to remedy a State's violation of federal law. Moreover, although Monaco attributes a quasi- constitutional status to sovereign immunity, even in cases not covered by the Eleventh Amendment's plain text, that characterization does not constitute precedent for the propo- sition that Congress is powerless to displace a State's immu- 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 89 Stevens, J., dissenting nity. Our abstention doctrines have roots in both the Tenth Amendment and Article III, and thus may be said to rest on constitutional "postulates" or to partake of jurisdictional aspects. Yet it has not been thought that the Constitution would prohibit Congress from barring federal courts from abstaining. The majority offers no reason for making the federal common-law rule of sovereign immunity less suscep- tible to congressional displacement than any other quasi- jurisdictional common-law rule. In this regard, I note that Monaco itself analogized sover- eign immunity to the prudential doctrine that "controver- sies" identified in Article III must be "justiciable" in order to be heard by federal courts. Id., at 329. The justiciability doctrine is a prudential rather than a jurisdictional one, and thus Congress' clearly expressed intention to create federal jurisdiction over a particular Article III controversy nec- essarily strips federal courts of the authority to decline ju- risdiction on justiciability grounds. See Allen v. Wright, 468 U. S. 737, 791 (1984) (Stevens, J., dissenting); Flast v. Cohen, 392 U. S. 83, 100­101 (1968). For that reason, Monaco, by its own terms, fails to resolve the question be- fore us.11 More generally, it is quite startling to learn that the rea- soning of Hans and Monaco (even assuming that it did not undermine the majority's view) should have a stare decisis effect on the question whether Congress possesses the au- thority to provide a federal forum for the vindication of a federal right by a citizen against its own State. In light of the Court's development of a "clear-statement" line of juris- 11 Indeed, to the extent the reasoning of Monaco was premised on the ground that a contrary ruling might permit foreign governments and States indirectly to frustrate Congress' treaty power, 292 U. S., at 331, the opinion suggests that its outcome would have been quite different had Congress expressly authorized suits by foreign governments against indi- vidual States as part of its administration of foreign policy. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 90 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting prudence, see, e. g., Atascadero State Hospital v. Scanlon, 473 U. S., at 238­239; Hoffman v. Connecticut Dept. of In- come Maintenance, 492 U. S. 96 (1989), I would have thought that Hans and Monaco had at least left open the question whether Congress could permit the suit we consider here. Our clear-statement cases would have been all but unintelli- gible if Hans and Monaco had already established that Con- gress lacked the constitutional power to make States suable in federal court by individuals no matter how clear its inten- tion to do so.12 Finally, the particular nature of the federal question in- volved in Hans renders the majority's reliance upon its rule even less defensible. Hans deduced its rebuttable presump- tion in favor of sovereign immunity largely on the basis of its extensive analysis of cases holding that the sovereign could not be forced to make good on its debts via a private suit. See Louisiana v. Jumel, 107 U. S. 711 (1883); Hagood v. Southern, 117 U. S. 52 (1886); In re Ayers, 123 U. S. 443 (1887). Because Hans, like these other cases, involved a suit that attempted to make a State honor its debt, its holding need not be read to stand even for the relatively limited proposition that there is a presumption in favor of sovereign immunity in all federal-question cases.13 12 Moreover, they would have most unnecessarily burdened Congress. For example, after deciding that Congress had not made sufficiently ex- plicit its intention to withdraw the state sovereign immunity defense in certain bankruptcy actions, see Hoffman v. Connecticut Dept. of Income Maintenance, 392 U. S. 96 (1989), Congress understandably concluded that it could correct the confusion by amending the relevant statute to make its intentions to override such a defense unmistakably clear. See In re Merchants Grain, Inc., 59 F. 3d 630 (CA7 1995). Congress will no doubt be surprised to learn that its exercise in legislative clarification, which it undertook for our benefit, was for naught because the Constitution makes it so. 13 Significantly, Chief Justice Marshall understood the Eleventh Amend- ment's bar to have been designed primarily to protect States from being sued for their debts. See Cohens v. Virginia, 6 Wheat. 264, 406 (1821). 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 91 Stevens, J., dissenting In Hans, the plaintiff asserted a Contracts Clause claim against his State and thus asserted a federal right. To show that Louisiana had impaired its federal obligation, however, Hans first had to demonstrate that the State had entered into an enforceable contract as a matter of state law. That Hans chose to bring his claim in federal court as a Contract Clause action could not change the fact that he was, at bot- tom, seeking to enforce a contract with the State. See Burnham, Taming the Eleventh Amendment Without Over- ruling Hans v. Louisiana, 40 Case W. Res. L. Rev. 931 (1990). Because Hans' claimed federal right did not arise inde- pendently of state law, sovereign immunity was relevant to the threshold state-law question of whether a valid contract existed.14 Hans expressly pointed out, however, that an in- dividual who could show that he had an enforceable contract under state law would not be barred from bringing suit in federal court to prevent the State from impairing it. "To avoid misapprehension it may be proper to add that, although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subject of judicial cognizance unless the State consents to be sued, or comes itself into court; yet where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be in- vaded. Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts, may be 14 Significantly, many of the cases decided after Hans in which this Court has recognized state sovereign immunity involved claims premised on the breach of rights that were rooted in state law. See Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459 (1945); Great Northern Life Ins. Co. v. Read, 322 U. S. 47 (1944); Smith v. Reeves, 178 U. S. 436 (1900). In such cases, the Court's application of the state-law immunity appears simply to foreshadow (or follow) the rule of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), not to demark the limits of Article III. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 92 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting judicially resisted; and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment." Hans v. Louisiana, 134 U. S., at 20­21. That conclusion casts doubt on the absolutist view that Hans definitively establishes that Article III prohibits fed- eral courts from entertaining federal-question suits brought against States by their own citizens. At the very least, Hans suggests that such suits may be brought to enjoin States from impairing existing contractual obligations. The view that the rule of Hans is more substantive than jurisdictional comports with Hamilton's famous discussion of sovereign immunity in The Federalist Papers. Hamilton of- fered his view that the federal judicial power would not ex- tend to suits against unconsenting States only in the context of his contention that no contract with a State could be en- forceable against the State's desire. He did not argue that a State's immunity from suit in federal court would be absolute. "[T]here is no color to pretend that the State govern- ments would, by the adoption of [the plan of convention], be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action inde- pendent of the sovereign will." The Federalist No. 81, p. 488 (C. Rossiter ed. 1961). Here, of course, no question of a State's contractual obliga- tions is presented. The Seminole Tribe's only claim is that the State of Florida has failed to fulfill a duty to negotiate that federal statutory law alone imposes. Neither the Fed- 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 93 Stevens, J., dissenting eralist Papers, nor Hans, provides support for the view that such a claim may not be heard in federal court. III In reaching my conclusion that the Constitution does not prevent Congress from making the State of Florida suable in federal court for violating one of its statutes, I emphasize that I agree with the majority that in all cases to which the judicial power does not extend-either because they are not within any category defined in Article III or because they are within the category withdrawn from Article III by the Eleventh Amendment-Congress lacks the power to confer jurisdiction on the federal courts. As I have previously in- sisted: "A statute cannot amend the Constitution." Penn- sylvania v. Union Gas Co., 491 U. S., at 24. It was, therefore, misleading for the Court in Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), to imply that § 5 of the Four- teenth Amendment authorized Congress to confer jurisdic- tion over cases that had been withdrawn from Article III by the Eleventh Amendment. Because that action had been brought by Connecticut citizens against officials of the State of Connecticut, jurisdiction was not precluded by the Elev- enth Amendment. As Justice Brennan pointed out in his concurrence, the congressional authority to enact the provi- sions at issue in the case was found in the Commerce Clause and provided a sufficient basis for refusing to allow the State to "avail itself of the nonconstitutional but ancient doctrine of sovereign immunity." Id., at 457 (opinion concurring in judgment). In confronting the question whether a federal grant of ju- risdiction is within the scope of Article III, as limited by the Eleventh Amendment, I see no reason to distinguish among statutes enacted pursuant to the power granted to Congress to regulate commerce among the several States, and with the Indian tribes, Art. I, § 8, cl. 3, the power to establish 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 94 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting uniform laws on the subject of bankruptcy, Art. I, § 8, cl. 4, the power to promote the progress of science and the arts by granting exclusive rights to authors and inventors, Art. I, § 8, cl. 8, the power to enforce the provisions of the Four- teenth Amendment, § 5, or indeed any other provision of the Constitution. There is no language anywhere in the consti- tutional text that authorizes Congress to expand the borders of Article III jurisdiction or to limit the coverage of the Eleventh Amendment. The Court's holdings in Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), and Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989), do unquestionably establish, however, that Congress has the power to deny the States and their officials the right to rely on the nonconstitutional defense of sovereign immu- nity in an action brought by one of their own citizens. As the opinions in the latter case demonstrate, there can be le- gitimate disagreement about whether Congress intended a particular statute to authorize litigation against a State. Nevertheless, the Court there squarely held that the Com- merce Clause was an adequate source of authority for such a private remedy. In a rather novel rejection of the doc- trine of stare decisis, the Court today demeans that holding by repeatedly describing it as a "plurality decision" because Justice White did not deem it necessary to set forth the rea- sons for his vote. As Justice Souter's opinion today dem- onstrates, the arguments in support of Justice White's posi- tion are so patent and so powerful that his actual vote should be accorded full respect. Indeed, far more significant than the "plurality" character of the three opinions supporting the holding in Union Gas is the fact that the issue confronted today has been squarely addressed by a total of 13 Justices, 8 of whom cast their votes with the so-called "plurality." 15 15 It is significant that Justice Souter's opinion makes it perfectly clear that Justice Ginsburg, Justice Breyer, and he did not consider it necessary to rely on the holding in Union Gas to support their conclu- 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 95 Stevens, J., dissenting The fundamental error that continues to lead the Court astray is its failure to acknowledge that its modern embodi- ment of the ancient doctrine of sovereign immunity "has ab- solutely nothing to do with the limit on judicial power con- tained in the Eleventh Amendment." Id., at 25 (Stevens, J., concurring). It rests rather on concerns of federalism and comity that merit respect but are nevertheless, in cases such as the one before us, subordinate to the plenary power of Congress. IV As I noted above, for the purpose of deciding this case, it is not necessary to question the wisdom of the Court's deci- sion in Hans v. Louisiana. Given the absence of precedent for the Court's dramatic application of the sovereign immu- nity doctrine today, it is nevertheless appropriate to identify the questionable heritage of the doctrine and to suggest that there are valid reasons for limiting, or even rejecting that doctrine altogether, rather than expanding it. Except insofar as it has been incorporated into the text of the Eleventh Amendment, the doctrine is entirely the prod- uct of judge-made law. Three features of its English ances- try make it particularly unsuitable for incorporation into the law of this democratic Nation. First, the assumption that it could be supported by a belief that "the King can do no wrong" has always been absurd; the bloody path trod by English monarchs both before and after they reached the throne demonstrated the fictional character of any such assumption. Even if the fiction had been acceptable in Britain, the recitation in the Declaration of Independence of the wrongs committed by George III made that proposition unacceptable on this side of the Atlantic. sion. I find today's decision particularly unfortunate because of its failure to advance an acceptable reason for refusing to adhere to a precedent upon which the Congress, as well as the courts, should be entitled to rely. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 96 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting Second, centuries ago the belief that the monarch served by divine right made it appropriate to assume that redress for wrongs committed by the sovereign should be the exclu- sive province of still higher authority.16 While such a justi- fication for a rule that immunized the sovereign from suit in a secular tribunal might have been acceptable in a jurisdic- tion where a particular faith is endorsed by the government, it should give rise to skepticism concerning the legitimacy of comparable rules in a society where a constitutional wall separates the State from the Church. Third, in a society where noble birth can justify prefer- ential treatment, it might have been unseemly to allow a commoner to hale the monarch into court. Justice Wilson explained how foreign such a justification is to this Nation's principles. See Chisholm v. Georgia, 2 Dall., at 455. More- over, Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State's dignity. Cohens v. Virginia, 6 Wheat. 264, 406­407 (1821). Its purpose, he explained, was far more practical. "That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. . . . We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any consid- erable amount, and there was reason to retain the juris- 16 See Stevens, Is Justice Irrelevant?, 87 Nw. U. L. Rev. 1121, 1124­ 1125 (1993). 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 97 Stevens, J., dissenting diction of the Court in those cases, because it might be essential to the preservation of peace." Ibid.17 Nevertheless, this Court later put forth the interest in preventing "indignity" as the "very object and purpose of the [Eleventh] Amendment." In re Ayers, 123 U. S., at 505. That, of course, is an "embarrassingly insufficient" rationale for the rule. See Puerto Rico Aqueduct and Sewer Author- ity v. Metcalf & Eddy, Inc., 506 U. S. 139, 151 (1993) (Ste- vens, J., dissenting). Moreover, I find unsatisfying Justice Holmes' explanation that "[a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right de- pends." Kawananakoa v. Polyblank, 205 U. S. 349, 353 (1907). As I have explained before, Justice Holmes' justifi- cation fails in at least two respects. "First, it is nothing more than a restatement of the obvi- ous proposition that a citizen may not sue the sovereign unless the sovereign has violated the citizen's legal rights. It cannot explain application of the immunity defense in cases like Chisholm, in which it is assumed that the plaintiff's rights have in fact been violated- and those cases are, of course, the only ones in which the immunity defense is needed. Second, Holmes's statement does not purport to explain why a general grant of jurisdiction to federal courts should not be treated as an adequate expression of the sovereign's consent to suits against itself as well as to suits against 17 Interestingly, this passage demonstrates that the Court's application of a common-law sovereign immunity defense in Principality of Monaco v. Mississippi, 292 U. S. 313 (1934), was quite probably justified. There a foreign state sued a State as a substantial creditor, and thus implicated the very purpose of the Eleventh Amendment. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 98 SEMINOLE TRIBE OF FLA. v. FLORIDA Stevens, J., dissenting ordinary litigants." Stevens, Is Justice Irrelevant?, 87 Nw. U. L. Rev. 1121, 1126 (1993). In sum, as far as its common-law ancestry is concerned, there is no better reason for the rule of sovereign immunity "than that so it was laid down in the time of Henry IV." Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). That "reason" for the perpetuation of this ancient doctrine certainly cannot justify the majority's expansion of it.In this country the sovereignty of the individual States is subordinate both to the citizenry of each State and to the supreme law of the federal sovereign. For that reason, Jus- tice Holmes' explanation for a rule that allows a State to avoid suit in its own courts does not even speak to the ques- tion whether Congress should be able to authorize a federal court to provide a private remedy for a State's violation of federal law. In my view, neither the majority's opinion today, nor any earlier opinion by any Member of the Court, has identified any acceptable reason for concluding that the absence of a State's consent to be sued in federal court should affect the power of Congress to authorize federal courts to remedy violations of federal law by States or their officials in actions not covered by the Eleventh Amendment's explicit text.18 While I am persuaded that there is no justification for per- manently enshrining the judge-made law of sovereign immu- nity, I recognize that federalism concerns-and even the in- 18 Because Hans v. Louisiana, 134 U. S. 1 (1890), was the first case in which the Court held that a State could not be sued in federal court by one of its citizens, this comment is of interest: "It is not necessary that we should enter upon an examination of the reason or the expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. This is fully discussed by writers on public law. It is enough for us to declare its existence." Id., at 21. So it is today. 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 99 Stevens, J., dissenting terest in protecting the solvency of the States that was at work in Chisholm and Hans-may well justify a grant of immunity from federal litigation in certain classes of cases. Such a grant, however, should be the product of a reasoned decision by the policymaking branch of our Government. For this Court to conclude that timeworn shibboleths iter- ated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible. V Fortunately, and somewhat fortuitously, a jurisdictional problem that is unmentioned by the Court may deprive its opinion of precedential significance. The Indian Gaming Regulatory Act establishes a unique set of procedures for resolving the dispute between the Tribe and the State. If each adversary adamantly adheres to its understanding of the law, if the District Court determines that the State's in- flexibility constitutes a failure to negotiate in good faith, and if the State thereafter continues to insist that it is acting within its rights, the maximum sanction that the Court can impose is an order that refers the controversy to a member of the Executive Branch of the Government for resolution. 25 U. S. C. § 2710(d)(7)(B). As the Court of Appeals inter- preted the Act, this final disposition is available even though the action against the State and its Governor may not be maintained. 11 F. 3d 1016, 1029 (CA11 1994). (The Court does not tell us whether it agrees or disagrees with that disposition.) In my judgment, it is extremely doubtful that the obviously dispensable involvement of the judiciary in the intermediate stages of a procedure that begins and ends in the Executive Branch is a proper exercise of judicial power. See Gordon v. United States, 117 U. S. Appx. 697, 702­703 (1864) (opinion of Taney, C. J.); United States v. Ferreira, 13 How. 40, 48 (1852). It may well follow that the misguided opinion of today's majority has nothing more than an advi- sory character. Whether or not that be so, the better rea- 517us1$37I 02-23-99 16:36:05 PAGES OPINPGT 100 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting soning in Justice Souter's far wiser and far more scholarly opinion will surely be the law one day. For these reasons, as well as those set forth in Justice Souter's opinion, I respectfully dissent. Justice Souter, with whom Justice Ginsburg and Justice Breyer join, dissenting. In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Con- gress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Although the Court invokes the Eleventh Amendment as authority for this proposition, the only sense in which that amendment might be claimed as pertinent here was tolerantly phrased by Justice Stevens in his concur- ring opinion in Pennsylvania v. Union Gas Co., 491 U. S. 1, 23 (1989). There, he explained how it has come about that we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in Hans v. Louisiana, 134 U. S. 1 (1890). Justice Stevens saw in that second Eleventh Amendment no bar to the exercise of congressional authority under the Commerce Clause in providing for suits on a federal question by individ- uals against a State, and I can only say that after my own canvass of the matter I believe he was entirely correct in that view, for reasons given below. His position, of course, was also the holding in Union Gas, which the Court now overrules and repudiates. The fault I find with the majority today is not in its deci- sion to reexamine Union Gas, for the Court in that case produced no majority for a single rationale supporting con- gressional authority. Instead, I part company from the Court because I am convinced that its decision is fundamen- tally mistaken, and for that reason I respectfully dissent. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 101 Souter, J., dissenting I It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Con- stitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was be- tween a State and a nonstate litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress. The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts. The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction; 1 there was no unanimity, but in due course the Court in Chisholm v. Georgia, 2 Dall. 419 (1793), answered that a state defendant enjoyed no such immunity. As to federal-question jurisdiction, state sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases. The adoption of the Eleventh Amendment soon changed the result in Chisholm, not by mentioning sovereign immu- nity, but by eliminating citizen-state diversity jurisdiction over cases with state defendants. I will explain why the 1 The two Citizen-State Diversity Clauses provide as follows: "The judi- cial Power shall extend . . . to Controversies . . . between a State and Citizens of another State; . . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." U. S. Const., Art. III, § 2. In his opinion in Union Gas, Justice Stevens referred to these Clauses as the "citizen-state" and "alien-state" Clauses, respectively, Pennsylvania v. Union Gas Co., 491 U. S. 1, 24 (1989) (concurring opinion). I have grouped the two as "Citizen-State Diversity Clauses" for ease in frequent repetition here. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 102 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting Eleventh Amendment did not affect federal-question juris- diction, a notion that needs to be understood for the light it casts on the soundness of Hans's holding that States did enjoy sovereign immunity in federal-question suits. The Hans Court erroneously assumed that a State could plead sovereign immunity against a noncitizen suing under federal-question jurisdiction, and for that reason held that a State must enjoy the same protection in a suit by one of its citizens. The error of Hans's reasoning is underscored by its clear inconsistency with the Founders' hostility to the im- plicit reception of common-law doctrine as federal law, and with the Founders' conception of sovereign power as divided between the States and the National Government for the sake of very practical objectives. The Court's answer today to the third question is likewise at odds with the Founders' view that common law, when it was received into the new American legal system, was al- ways subject to legislative amendment. In ignoring the reasons for this pervasive understanding at the time of the ratification, and in holding that a nontextual common-law rule limits a clear grant of congressional power under Article I, the Court follows a course that has brought it to grief before in our history, and promises to do so again. Beyond this third question that elicits today's holding, there is one further issue. To reach the Court's result, it must not only hold the Hans doctrine to be outside the reach of Congress, but must also displace the doctrine of Ex parte Young, 209 U. S. 123 (1908), that an officer of the government may be ordered prospectively to follow federal law, in cases in which the government may not itself be sued directly. None of its reasons for displacing Young's jurisdictional doc- trine withstand scrutiny. A The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 103 Souter, J., dissenting not bound by the law's provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See, e. g., Jaffe, Suits Against Gov- ernments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 3­4 (1963).2 The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are con- cerned here only with the latter rule, which took its common-law form in the high Middle Ages. "At least as early as the thirteenth century, during the reign of Henry III (1216­1272), it was recognized that the king could not be sued in his own courts." C. Jacobs, Eleventh Amendment and Sovereign Immunity 5 (1972). See also 3 W. Blackstone, Commentaries *244­*245; Jaffe, supra, at 2 ("By the time of Bracton (1268) it was settled doctrine that the King could not be sued eo nomine in his own courts"). The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, Jacobs, supra, at 6­7, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1895­1899 (1983). 2 The first of these notions rests on the ancient maxim that "the King can do no wrong." See, e. g., 1 W. Blackstone, Commentaries *244. Professor Jaffe has argued this expression "originally meant precisely the contrary to what it later came to mean," that is, " `it meant that the king must not, was not allowed, not entitled, to do wrong.' " Jaffe, 77 Harv. L. Rev., at 4 (quoting L. Ehrlich, Proceedings Against the Crown (1216­1377), p. 42, in 6 Oxford Studies in Social and Legal History (P. Vinogradoff ed. 1921), p. 42); see also 1 Blackstone, supra, at *246 (interpreting the maxim to mean that "the prerogative of the crown extends not to do any injury"). In any event, it is clear that the idea of the sovereign, or any part of it, being above the law in this sense has not survived in American law. See, e. g., Langford v. United States, 101 U. S. 341, 342­343 (1880); Nevada v. Hall, 440 U. S. 410, 415 (1979). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 104 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Con- federation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experi- ence: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective sub- stantive laws might be in conflict. With this prospect in mind, the 1787 Constitution might have addressed state sov- ereign immunity by eliminating whatever sovereign immu- nity the States previously had, as to any matter subject to federal law or jurisdiction; by recognizing an analogue to the old immunity in the new context of federal jurisdiction, but subject to abrogation as to any matter within that jurisdic- tion; or by enshrining a doctrine of inviolable state sovereign immunity in the text, thereby giving it constitutional protec- tion in the new federal jurisdiction. See Field, The Elev- enth Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. Pa. L. Rev. 515, 536­538 (1977). The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though appar- ently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immu- nity as it could have done on any matter of nonfederal law litigated in its own courts. As it has come down to us, the discussion gave no attention to congressional power under the proposed Article I but focused entirely on the limits of the judicial power provided in Article III. And although the jurisdictional bases together constituting the judicial power of the national courts under § 2 of Article III included questions arising under federal law and cases between States 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 105 Souter, J., dissenting and individuals who are not citizens,3 it was only upon the latter citizen-state diversity provisions that preratifica- tion questions about state immunity from suit or liability centered.4 Later in my discussion I will canvass the details of the debate among the Framers and other leaders of the time, see infra, at 142­150; for now it is enough to say that there was no consensus on the issue. See Atascadero State Hospital v. Scanlon, 473 U. S. 234, 263­280 (1985) (Brennan, J., dis- senting); Nevada v. Hall, 440 U. S. 410, 419 (1979); Jacobs, supra, at 40 ("[T]he legislative history of the Constitution hardly warrants the conclusion drawn by some that there was a general understanding, at the time of ratification, that the states would retain their sovereign immunity"). There was, on the contrary, a clear disagreement, which was left to fester during the ratification period, to be resolved only thereafter. One other point, however, was also clear: the 3 The text reads that "[t]he Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Author- ity;-to all Cases affecting Ambassadors, other public Ministers and Con- suls;-to all Cases of admiralty and maritime Jurisdiction;-to Controver- sies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States,-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." 4 The one statement I have found on the subject of States' immunity in federal-question cases was an opinion that immunity would not be applica- ble in these cases: James Wilson, in the Pennsylvania ratification debate, stated that the federal-question clause would require States to make good on pre-Revolutionary debt owed to English merchants (the enforcement of which was promised in the Treaty of 1783) and thereby "show the world that we make the faith of treaties a constitutional part of the character of the United States; that we secure its performance no longer nominally, for the judges of the United States will be enabled to carry it into effect, let the legislatures of the different states do what they may." 2 J. Elliot, Debates on the Federal Constitution 490 (2d ed. 1836) (Elliot's Debates). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 106 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting debate addressed only the question whether ratification of the Constitution would, in diversity cases and without more, abrogate the state sovereign immunity or allow it to have some application. We have no record that anyone argued for the third option mentioned above, that the Constitution would affirmatively guarantee state sovereign immunity against any congressional action to the contrary. Nor would there have been any apparent justification for any such argu- ment, since no clause in the proposed (and ratified) Constitu- tion even so much as suggested such a position. It may have been reasonable to contend (as we will see that Madison, Marshall, and Hamilton did) that Article III would not alter States' pre-existing common-law immunity despite its un- qualified grant of jurisdiction over diversity suits against States. But then, as now, there was no textual support for contending that Article III or any other provision would "constitutionalize" state sovereign immunity, and no one ut- tered any such contention. B The argument among the Framers and their friends about sovereign immunity in federal citizen-state diversity cases, in any event, was short lived and ended when this Court, in Chisholm v. Georgia, 2 Dall. 419 (1793), chose between the constitutional alternatives of abrogation and recognition of the immunity enjoyed at common law. The 4-to-1 majority adopted the reasonable (although not compelled) interpreta- tion that the first of the two Citizen-State Diversity Clauses abrogated for purposes of federal jurisdiction any immunity the States might have enjoyed in their own courts, and Geor- gia was accordingly held subject to the judicial power in a common-law assumpsit action by a South Carolina citizen suing to collect a debt.5 The case also settled, by implica- 5 This lengthy discussion of the history of the Constitution's ratification, the Court's opinion in Chisholm v. Georgia, 2 Dall. 419 (1793), and the adoption of the Eleventh Amendment is necessary to explain why, in my view, the contentions in some of our earlier opinions that Chisholm cre- 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 107 Souter, J., dissenting tion, any question there could possibly have been about rec- ognizing state sovereign immunity in actions depending on the federal question (or "arising under") head of jurisdiction ated a great "shock of surprise" misread the history. See Principality of Monaco v. Mississippi, 292 U. S. 313 (1934). The Court's response to this historical analysis is simply to recite yet again Monaco's erroneous asser- tion that Chisholm created "such a shock of surprise that the Eleventh Amendment was at once proposed and adopted," 292 U. S., at 325. See ante, at 69. This response is, with respect, no response at all. Monaco's ipse dixit that Chisholm created a "shock of surprise" does not make it so. This Court's opinions frequently make assertions of his- torical fact, but those assertions are not authoritative as to history in the same way that our interpretations of laws are authoritative as to them. In Tucker v. Alexandroff, 183 U. S. 424, 434 (1902), which was, like Monaco, decided a century after the event it purported to recount, the Court baldly stated that "in September 1790, General Washington, on the advice of Mr. Adams, did refuse to permit British troops to march through the territory of the United States from Detroit to the Mississippi, appar- ently for the reason that the object of such movement was an attack on New Orleans and the Spanish possessions on the Mississippi." Modern historians agree, however, that there was no such request, see J. Daly, The Use of History in the Decisions of the Supreme Court: 1900­1930, pp. 65­66 (1954); W. Manning, The Nootka Sound Controversy, in Annual Report of the American Historical Association, H. R. Doc. No. 429, 58th Cong., 3d Sess., pp. 415­423 (1905), and it would of course be absurd for this Court to treat the fact that Tucker asserted the existence of the re- quest as proof that it actually occurred. Cf. Erie R. Co. v. Tompkins, 304 U. S. 64, 72­73 (1938) ("But it was the more recent research of a competent scholar, who examined the original document, which established that the construction given to [the Judiciary Act of 1789] by the Court was errone- ous; and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling, the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written"). Moreover, in this case, there is ample evidence contradicting the "shock of surprise" thesis. Contrary to Monaco's suggestion, the Eleventh Amendment was not "at once proposed and adopted." Congress was in session when Chisholm was decided, and a constitutional amendment in response was proposed two days later, but Congress never acted on it, and in fact it was not until two years after Chisholm was handed down that 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 108 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting as well. The constitutional text on federal-question juris- diction, after all, was just as devoid of immunity language as it was on citizen-state diversity, and at the time of Chisholm any influence that general common-law immunity might have had as an interpretive force in construing constitutional lan- guage would presumably have been no greater when ad- dressing the federal-question language of Article III than its Diversity Clauses. See Sherry, The Eleventh Amendment and Stare Decisis: Overruling Hans v Louisiana, 57 U. Chi. L. Rev. 1260, 1270 (1990). Although Justice Iredell's dissent in Chisholm seems at times to reserve judgment on what I have called the third question, whether Congress could authorize suits against the States, Chisholm, supra, at 434­435, his argument is largely devoted to stating the position taken by several federalists that state sovereign immunity was cognizable under the Citizen-State Diversity Clauses, not that state immunity was somehow invisibly codified as an independent constitutional defense. As Justice Stevens persuasively explains in greater detail, ante, at 78­81, Justice Iredell's dissent fo- cused on the construction of the Judiciary Act of 1789, not Article III. See also Orth, The Truth About Justice Ire- dell's Dissent in Chisholm v. Georgia (1793), 73 N. C. L. Rev. 255 (1994). This would have been an odd focus, had he be- lieved that Congress lacked the constitutional authority to impose liability. Instead, on Justice Iredell's view, States sued in diversity retained the common-law sovereignty "where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the coun- try." 2 Dall., at 435 (emphasis deleted). While in at least some circumstances States might be held liable to "the au- thority of the United States," id., at 436, any such liability an Amendment was ratified. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1926­1927 (1983). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 109 Souter, J., dissenting would depend upon "laws passed under the Constitution and in conformity to it," ibid.6 Finding no congressional action abrogating Georgia's common-law immunity, Justice Iredell concluded that the State should not be liable to suit.7 C The Eleventh Amendment, of course, repudiated Chisholm and clearly divested federal courts of some jurisdiction as to cases against state parties: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." There are two plausible readings of this provision's text. Under the first, it simply repeals the Citizen-State Diversity 6 See also 2 Dall., at 435 ("[I]t is certain that in regard to any common law principle which can influence the question before us no alteration has been made by any statute"); id., at 437 (if "no new remedy be provided . . . we have no other rule to govern us but the principles of the pre- existent laws, which must remain in force till superseded by others"); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 283 (1985) (Brennan, J., dissenting). But see Justice Iredell's dicta suggesting that the Con- stitution would not permit suits against a State. Chisholm, supra, at 449 (dissenting opinion); Atascadero, supra, at 283, n. 34 (Brennan, J., dissenting). 7 Of course, even if Justice Iredell had concluded that state sovereign immunity was not subject to abrogation, it would be inappropriate to as- sume (as it appears the Court does today, and Hans v. Louisiana, 134 U. S. 1 (1890), did as well) that the Eleventh Amendment (regardless of what it says) "constitutionalized" Justice Iredell's dissent, or that it simply adopted the opposite of the holding in Chisholm. It is as odd to read the Eleventh Amendment's rejection of Chisholm (which held that States may be sued in diversity) to say that States may not be sued on a federal question as it would be to read the Twenty-Sixth Amendment's rejection of Oregon v. Mitchell, 400 U. S. 112 (1970) (which held that Congress could not require States to extend the suffrage to 18-year-olds) to permit Con- gress to require States to extend the suffrage to 12-year-olds. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 110 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting Clauses of Article III for all cases in which the State appears as a defendant. Under the second, it strips the federal courts of jurisdiction in any case in which a state defendant is sued by a citizen not its own, even if jurisdiction might otherwise rest on the existence of a federal question in the suit. Neither reading of the Amendment, of course, fur- nishes authority for the Court's view in today's case, but we need to choose between the competing readings for the light that will be shed on the Hans doctrine and the legitimacy of inflating that doctrine to the point of constitutional immuta- bility as the Court has chosen to do. The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Di- versity Clauses.8 In precisely tracking the language in Ar- ticle III providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common 8 The great weight of scholarly commentary agrees. See, e. g., Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Im- munity, 98 Yale L. J. 1 (1988); Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425 (1987); Fletcher, A Historical Interpretation of the Elev- enth Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 (1983); Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889 (1983); Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Congres- sional Imposition of Suit Upon the States, 126 U. Pa. L. Rev. 1203 (1978). While a minority has adopted the second view set out above, see, e. g., Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342 (1989); Massey, State Sovereignty and the Tenth and Eleventh Amendments, 56 U. Chi. L. Rev. 61 (1989), and others have criticized the diversity theory, see, e. g., Marshall, The Diversity Theory of the Eleventh Amendment: A Critical Evaluation, 102 Harv. L. Rev. 1372 (1989), I have discovered no commentator affirmatively advocating the position taken by the Court today. As one scholar has observed, the literature is "remark- ably consistent in its evaluation of the historical evidence and text of the amendment as not supporting a broad rule of constitutional immunity for states." Jackson, supra, at 44, n. 179. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 111 Souter, J., dissenting sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federal- question suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post-Chisholm proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect: "[N]o state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States." Gazette of the United States 303 (Feb. 20, 1793). With its references to suits by citizens as well as non- citizens, the Sedgwick amendment would necessarily have been applied beyond the Diversity Clauses, and for a reason that would have been wholly obvious to the people of the time. Sedgwick sought such a broad amendment because many of the States, including his own, owed debts subject to collection under the Treaty of Paris. Suits to collect such debts would "arise under" that Treaty and thus be subject to federal-question jurisdiction under Article III. Such a suit, indeed, was then already pending against Massachusetts, having been brought in this Court by Christopher Vassal, an erstwhile Bostonian whose move to England on the eve of revolutionary hostilities had presented his former neighbors with the irresistible temptation to confiscate his vacant man- sion. 5 Documentary History of the Supreme Court of the United States, 1789­1800, pp. 352­449 (M. Marcus ed. 1994).9 9 Vassall initiated a suit against Massachusetts, invoking the original jurisdiction of the Supreme Court. Although the marshal for the district of Massachusetts served a subpoena on Governor John Hancock and Attor- 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 112 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting Congress took no action on Sedgwick's proposal, however, and the Amendment as ultimately adopted two years later could hardly have been meant to limit federal-question juris- diction, or it would never have left the States open to federal-question suits by their own citizens. To be sure, the majority of state creditors were not citizens, but nothing in the Treaty would have prevented foreign creditors from sell- ing their debt instruments (thereby assigning their claims) to citizens of the debtor State. If the Framers of the Elev- enth Amendment had meant it to immunize States from federal-question suits like those that might be brought to enforce the Treaty of Paris, they would surely have drafted the Amendment differently. See Fletcher, The Diversity Explanation of the Eleventh Amendment: A Reply to Critics, 56 U. Chi. L. Rev. 1261, 1280­1282 (1989). It should accordingly come as no surprise that the weighti- est commentary following the Amendment's adoption de- scribed it simply as constricting the scope of the Citizen- State Diversity Clauses. In Cohens v. Virginia, 6 Wheat. 264 (1821), for instance, Chief Justice Marshall, writing for the Court, emphasized that the Amendment had no effect on federal courts' jurisdiction grounded on the "arising under" provision of Article III and concluded that "a case arising under the constitution or laws of the United States, is cogni- zable in the Courts of the Union, whoever may be the parties to that case." Id., at 383. The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, ney General James Sullivan, the Commonwealth of Massachusetts did not appear by the original return date of August 1793, and the case was con- tinued to the February 1794 Term. Massachusetts never did appear, and the case was "simply continued from term to term through 1796." 5 Doc- umentary History of the Supreme Court of the United States, at 369. In February 1797 the suit was "dismissed with Costs, for reasons unknown," ibid. (internal quotation marks omitted), perhaps because "Vassall failed to prosecute it properly," ibid. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 113 Souter, J., dissenting not "to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation." Id., at 407. The treatment of the Amendment in Osborn v. Bank of United States, 9 Wheat. 738 (1824), was to the same effect. The Amendment was held there to be no bar to an action against the State seeking the return of an unconstitutional tax. "The eleventh amendment of the constitution has ex- empted a State from the suits of citizens of other States, or aliens," Marshall stated, omitting any reference to cases that arise under the Constitution or federal law. Id., at 847. The good sense of this early construction of the Amend- ment as affecting the diversity jurisdiction and no more has the further virtue of making sense of this Court's repeated exercise of appellate jurisdiction in federal-question suits brought against States in their own courts by out-of-staters. Exercising appellate jurisdiction in these cases would have been patent error if the Eleventh Amendment limited federal-question jurisdiction, for the Amendment's uncondi- tional language ("shall not be construed") makes no distinc- tion between trial and appellate jurisdiction.10 And yet, again and again we have entertained such appellate cases, even when brought against the State in its own name by a 10 We have generally rejected Eleventh Amendment challenges to our appellate jurisdiction on the specious ground that an appeal is not a "suit" for purposes of the Amendment. See, e. g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 27 (1990). Although Cohens v. Virginia, 6 Wheat. 264, 412 (1821), is cited for this proposition, that case involved a State as plaintiff. See generally Jackson, 98 Yale L. J., at 32­35 (rejecting the appeal/suit distinction). The appeal/suit distinction, in any case, makes no sense. Whether or not an appeal is a "suit" in its own right, it is certainly a means by which an appellate court exercises jurisdiction over a "suit" that began in the courts below. Cf. Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 58 (1982) (per curiam) ("The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 114 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting private plaintiff for money damages. See, e. g., Common- wealth Edison Co. v. Montana, 453 U. S. 609 (1981); Minne- apolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575 (1983). The best explanation for our practice belongs to Chief Justice Marshall: the Eleventh Amendment bars only those suits in which the sole basis for federal juris- diction is diversity of citizenship. See Atascadero State Hospital v. Scanlon, 473 U. S., at 294 (Brennan, J., dissent- ing); Jackson, The Supreme Court, the Eleventh Amend- ment, and State Sovereign Immunity, 98 Yale L. J. 1, 44 (1988). In sum, reading the Eleventh Amendment solely as a limit on citizen-state diversity jurisdiction has the virtue of coher- ence with this Court's practice, with the views of John Mar- shall, with the history of the Amendment's drafting, and with its allusive language. Today's majority does not appear to disagree, at least insofar as the constitutional text is con- cerned; the Court concedes, after all, that "the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts." Ante, at 54.11 Thus, regardless of which of the two plausible readings one adopts, the further point to note here is that there is no pos- sible argument that the Eleventh Amendment, by its terms, deprives federal courts of jurisdiction over all citizen law- 11 See also Pennsylvania v. Union Gas Co., 491 U. S., at 31 (Scalia, J., concurring in part and dissenting in part) ("If this text [of the Eleventh Amendment] were intended as a comprehensive description of state sover- eign immunity in federal courts . . . then it would unquestionably be most reasonable to interpret it as providing immunity only when the sole basis of federal jurisdiction is the diversity of citizenship that it describes (which of course tracks some of the diversity jurisdictional grants in U. S. Const., Art. III, § 2). For there is no plausible reason why one would wish to protect a State from being sued in federal court for violation of federal law . . . when the plaintiff is a citizen of another State or country, but to permit a State to be sued there when the plaintiff is citizen of the State itself"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 115 Souter, J., dissenting suits against the States. Not even the Court advances that proposition, and there would be no textual basis for doing so.12 Because the plaintiffs in today's case are citizens of the 12 The Court does suggest that the drafters of the Eleventh Amendment may not have had federal-question jurisdiction in mind, in the apparent belief that this somehow supports its reading. Ante, at 69­70. The pos- sibility, however, that those who drafted the Eleventh Amendment in- tended to deal "only with the problem presented by the decision in Chis- holm" would demonstrate, if any demonstration beyond the clear language of the Eleventh Amendment were necessary, that the Eleventh Amend- ment was not intended to address the broader issue of federal-question suits brought by citizens. Moreover, the Court's point is built on a faulty foundation. The Court is simply incorrect in asserting that "the federal courts did not have federal-question jurisdiction at the time the Amendment was passed." Ibid. Article III, of course, provided for such jurisdiction, and early Congresses exercised their authority pursuant to Article III to confer jurisdiction on the federal courts to resolve various matters of federal law. E. g., Act of Apr. 10, 1790, § 5, 1 Stat. 111; Act of Feb. 21, 1793, § 6, 1 Stat. 322; Act of Mar. 23, 1792, §§ 2, 3, 1 Stat. 244; see also Osborn v. Bank of United States, 9 Wheat. 738 (1824) (holding that federal statute conferred federal-question jurisdiction in cases involving the Bank of the United States); see generally P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 960­982 (3d ed. 1988). In fact, only six years after the passage of the Eleventh Amendment, Congress enacted a statute providing for general federal- question jurisdiction. Act of Feb. 13, 1801, § 11, 2 Stat. 92 ("[T]he said circuit courts respectively shall have cognizance of . . . all cases in law or equity, arising under the constitution and laws of the United States, and treaties made, or which shall be made, under their authority"). It is, of course, true that this statute proved short lived (it was repealed by the Act of Mar. 8, 1802, 2 Stat. 132), and that Congress did not pass another statute conferring general federal jurisdiction until 1875, but the drafters of the Eleventh Amendment obviously could not have predicted such things. The real significance of the 1801 Act is that it demonstrates the awareness among the Members of the early Congresses of the potential scope of Article III. This, in combination with the pre-Eleventh Amend- ment statutes that conferred federal-question jurisdiction on the federal courts, cast considerable doubt on the Court's suggestion that the issue of federal-question jurisdiction never occurred to the drafters of the Elev- 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 116 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting State that they are suing, the Eleventh Amendment simply does not apply to them. We must therefore look elsewhere for the source of that immunity by which the Court says their suit is barred from a federal court.13 II The obvious place to look elsewhere, of course, is Hans v. Louisiana, 134 U. S. 1 (1890), and Hans was indeed a leap in the direction of today's holding, even though it does not take the Court all the way. The parties in Hans raised, and the Court in that case answered, only what I have called the second question, that is, whether the Constitution, without enth Amendment; on the contrary, just because these early statutes under- score the early Congresses' recognition of the availability of federal- question jurisdiction, the silence of the Eleventh Amendment is all the more deafening. 13 The majority chides me that the "lengthy analysis of the text of the Eleventh Amendment is directed at a straw man," ante, at 69. But plain text is the Man of Steel in a confrontation with "background principle[s]" and " `postulates which limit and control,' " ante, at 68, 72. An argument rooted in the text of a constitutional provision may not be guaranteed of carrying the day, but insubstantiality is not its failing. See, e. g., Mon- aghan, Our Perfect Constitution, 56 N. Y. U. L. Rev. 353, 383­384 (1981) ("For the purposes of legal reasoning, the binding quality of the constitu- tional text is itself incapable of and not in need of further demonstration"); cf. Bourjaily v. United States, 483 U. S. 171, 178 (1987) (Rehnquist, C. J.) ("It would be extraordinary to require legislative history to confirm the plain meaning of [Federal Rule of Evidence] 104"); Garcia v. United States, 469 U. S. 70, 75 (1984) (Rehnquist, J.) ("[O]nly the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the `plain meaning' of the statutory language"). This is particularly true in construing the jurisdictional provisions of Article III, which speak with a clarity not to be found in some of the more open- textured provisions of the Constitution. See National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 646­647 (1949) (Frankfurter, J., dis- senting); Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 424 (1985) (noting the "seemingly plain linguistic mandate" of the Eleventh Amendment). That the Court thinks otherwise is an indication of just how far it has strayed beyond the boundaries of traditional constitutional analysis. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 117 Souter, J., dissenting more, permits a State to plead sovereign immunity to bar the exercise of federal-question jurisdiction. See id., at 9. Although the Court invoked a principle of sovereign immu- nity to cure what it took to be the Eleventh Amendment's anomaly of barring only those state suits brought by nonciti- zen plaintiffs, the Hans Court had no occasion to consider whether Congress could abrogate that background immunity by statute. Indeed (except in the special circumstance of Congress's power to enforce the Civil War Amendments), this question never came before our Court until Union Gas, and any intimations of an answer in prior cases were mere dicta. In Union Gas the Court held that the immunity rec- ognized in Hans had no constitutional status and was subject to congressional abrogation. Today the Court overrules Union Gas and holds just the opposite. In deciding how to choose between these two positions, the place to begin is with Hans's holding that a principle of sovereign immu- nity derived from the common law insulates a State from federal-question jurisdiction at the suit of its own citizen. A critical examination of that case will show that it was wrongly decided, as virtually every recent commentator has concluded.14 It follows that the Court's further step today of constitutionalizing Hans's rule against abrogation by Con- gress compounds and immensely magnifies the century-old mistake of Hans itself and takes its place with other historic examples of textually untethered elevations of judicially de- rived rules to the status of inviolable constitutional law. A The Louisiana plaintiff in Hans held bonds issued by that State, which, like virtually all of the Southern States, had issued them in substantial amounts during the Reconstruc- tion era to finance public improvements aimed at stimulating 14 Professor Jackson has noted the "remarkabl[e] consisten[cy]" of the scholarship on this point, Jackson, 98 Yale L. J., at 44, n. 179. See also n. 8, supra. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 118 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting industrial development. E. Foner, Reconstruction: Ameri- ca's Unfinished Revolution 1863­1877, pp. 383­384 (1988); Gibbons, 83 Colum. L. Rev., at 1976­1977. As Recon- struction governments collapsed, however, the post- Reconstruction regimes sought to repudiate these debts, and the Hans litigation arose out of Louisiana's attempt to renege on its bond obligations. Hans sued the State in federal court, asserting that the State's default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court's "arising under," or federal-question, jurisdiction. Justice Bradley's opinion did not purport to hold that the terms either of Article III or of the Eleventh Amendment barred the suit, but that the an- cient doctrine of sovereign immunity that had inspired adop- tion of the Eleventh Amendment applied to cases beyond the Amendment's scope and otherwise within the federal- question jurisdiction. Indeed, Bradley explicitly admitted that "[i]t is true, the amendment does so read [as to permit Hans's suit], and if there were no other reason or ground for abating his suit, it might be maintainable." Hans, 134 U. S., at 10. The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal-question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen's behest. Id., at 10­11. The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased. Hans thus addressed the issue implicated (though not di- rectly raised) in the preratification debate about the Citizen- State Diversity Clauses and implicitly settled by Chisholm: whether state sovereign immunity was cognizable by federal 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 119 Souter, J., dissenting courts on the exercise of federal-question jurisdiction. Ac- cording to Hans, and contrary to Chisholm, it was. But that is all that Hans held. Because no federal legislation purporting to pierce state immunity was at issue, it cannot fairly be said that Hans held state sovereign immunity to have attained some constitutional status immunizing it from abrogation.15 Taking Hans only as far as its holding, its vulnerability is apparent. The Court rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen's federal-question suit, but not one brought by a non- citizen. See Hans, supra, at 10­11. There was, however, no such anomaly at all. As already explained, federal- question cases are not touched by the Eleventh Amendment, which leaves a State open to federal-question suits by citi- zens and noncitizens alike. If Hans had been from Massa- chusetts the Eleventh Amendment would not have barred his action against Louisiana. Although there was thus no anomaly to be cured by Hans, the case certainly created its own anomaly in leaving federal courts entirely without jurisdiction to enforce paramount federal law at the behest of a citizen against a State that broke it. It destroyed the congruence of the judicial power under Article III with the substantive guarantees of the Constitution, and with the provisions of statutes passed by Congress in the exercise of its power under Article I: when a State injured an individual in violation of federal law no federal forum could provide direct relief. Absent an alter- native process to vindicate federal law (see Part IV, infra) John Marshall saw just what the consequences of this anom- aly would be in the early Republic, and he took that conse- quence as good evidence that the Framers could never have intended such a scheme. 15 Indeed, as Justice Stevens suggests, there is language in Hans suggesting that the Court was really construing the Judiciary Act of 1875 rather than the Constitution. See ante, at 84­87. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 120 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting "Different States may entertain different opinions on the true construction of the constitutional powers of con- gress. We know that, at one time, the assumption of the debts contracted by the several States, during the war of our Revolution, was deemed unconstitutional by some of them. . . . States may legislate in conformity to their opinions, and may enforce those opinions by penal- ties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the preju- dices by which the legislatures and people are influ- enced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the legislature. The constitu- tion of the United States furnishes no security against the universal adoption of this principle. When we ob- serve the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these con- stitutional questions to tribunals where this independ- ence may not exist." Cohens v. Virginia, 6 Wheat., at 386­387. And yet that is just what Hans threatened to do. How such a result could have been threatened on the basis of a principle not so much as mentioned in the Constitution is difficult to understand. But history provides the explana- tion. As I have already said, Hans was one episode in a long story of debt repudiation by the States of the former Confederacy after the end of Reconstruction. The turning point in the States' favor came with the Compromise of 1877, when the Republican Party agreed effectively to end Recon- struction and to withdraw federal troops from the South in return for Southern acquiescence in the decision of the Elec- toral Commission that awarded the disputed 1876 presiden- tial election to Rutherford B. Hayes. See J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 53­57 (1987); Gibbons, supra, at 1978­ 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 121 Souter, J., dissenting 1982; see generally Foner, Reconstruction, at 575­587 (de- scribing the events of 1877 and their aftermath). The troop withdrawal, of course, left the federal judiciary "effectively without power to resist the rapidly coalescing repudiation movement." Gibbons, 83 Colum. L. Rev., at 1981. Contract Clause suits like the one brought by Hans thus presented this Court with "a draconian choice between repudiation of some of its most inviolable constitutional doctrines and the humiliation of seeing its political authority compromised as its judgments met the resistance of hostile state govern- ments." Id., at 1974. Indeed, Louisiana's brief in Hans un- mistakably bore witness to this Court's inability to enforce a judgment against a recalcitrant State: "The solemn obliga- tion of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment." Brief for Respondent in No. 4, O. T. 1889, p. 25. Given the likelihood that a judgment against the State could not be enforced, it is not wholly surprising that the Hans Court found a way to avoid the certainty of the State's contempt.16 16 See Gibbons, 83 Colum. L. Rev., at 2000 ("Without weakening the con- tract clause, which over the next two decades the Fuller Court might need both in its fight against government regulation of business and as a weapon against defaulting local governments, the justices needed a way to let the South win the repudiation war. The means Bradley chose was to rewrite the eleventh amendment and the history of its adoption"). The commentators' contention that this Court's inability to enforce the obliga- tion of Southern States to pay their debts influenced the result in Hans v. Louisiana, 134 U. S. 1 (1890), is substantiated by three anomalies of this Court's sovereign immunity jurisprudence during that period. First, this Court held in 1885 that Virginia's sovereign immunity did not allow it to abrogate its bonds. Virginia Coupon Cases, 114 U. S. 269. The differ- ence from the situation in other States, however, was that Virginia had made its bond coupons receivable in payment of state taxes; "[u]nder these circumstances federal courts did not need to rely on the political branches of government to enforce their orders but could protect creditors by a 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 122 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting So it is that history explains, but does not honor, Hans. The ultimate demerit of the case centers, however, not on its politics but on the legal errors on which it rested.17 Before judgment that their taxes had in fact been paid. In these cases the Elev- enth Amendment faded into the background." J. Orth, Judicial Power of the United States: The Eleventh Amendment in American History 9 (1987); see generally id., at 90­109. Second, at the same time that this Court was articulating broad principles of immunity for States, we refused to recognize similar immunity for municipalities and similar state political subdivisions. See, e. g., Lincoln County v. Luning, 133 U. S. 529 (1890). Professor Orth suggests that this seeming inconsistency is traceable to the enforcement difficulties arising from the withdrawal of federal troops from the South. "It just so happened," he points out, "that counties had tended to issue bonds in the West, while in the South, states had usually done the job. Property in the form of bonds could be defended in the mid-West and West, but similar property in the South had to be sacrificed to the higher politics of the Compromise of 1877." Orth, supra, at 111. Finally, Professor Orth attributes this Court's recognition (or revival) of the Ex parte Young, 209 U. S. 123 (1908), action as a way around state sovereign immunity to the fact that, by 1908, "the problem of repudiated Southern bonds was clearly a specter from an increasingly distant past." Orth, supra, at 128. See also Gibbons, supra, at 2002 (arguing that the Court's unanimous revival of its power to grant equitable relief against state officers in Pennoyer v. McConnaughy, 140 U. S. 1 (1891), was made possible by the fact that the case "did not involve Southern State bonds"). I am reluctant, to be sure, to ascribe these legal developments to a single, extralegal cause, and at least one commentator has suggested that the Southern debt crisis may not have been the only factor driving the Court's Eleventh Amendment jurisprudence during this period. See generally Collins, The Conspiracy Theory of the Eleventh Amendment, 88 Colum. L. Rev. 212 (1988) (reviewing Orth). But neither would I ignore the pat- tern of the cases, which tends to show that the presence or absence of enforcement difficulties significantly influenced the path of the law in this area. See id., at 243 (acknowledging that "[i]t is perfectly conceivable that Compromise-related politics exerted their influence at the margin- in doubtful cases in which the Court might have gone either way"). 17 Today's majority condemns my attention to Hans's historical circum- stances as "a disservice to the Court's traditional method of adjudication." Ante, at 69. The point, however, is not that historical circumstance may undermine an otherwise defensible decision; on the contrary, it is just because Hans is so utterly indefensible on the merits of its legal analysis 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 123 Souter, J., dissenting considering those errors, it is necessary to address the Court's contention that subsequent cases have read into Hans what was not there to begin with, that is, a background principle of sovereign immunity that is constitutional in stat- ure and therefore unalterable by Congress. B The majority does not dispute the point that Hans v. Loui- siana, 134 U. S. 1 (1890), had no occasion to decide whether Congress could abrogate a State's immunity from federal- question suits. The Court insists, however, that the nega- tive answer to that question that it finds in Hans and subse- quent opinions is not "mere obiter dicta, but rather . . . the well-established rationale upon which the Court based the results of its earlier decisions." Ante, at 66­67. The exact rationale to which the majority refers, unfortunately, is not easy to discern. The Court's opinion says, immediately after its discussion of stare decisis, that "[f]or over a century, we have grounded our decisions in the oft-repeated under- standing of state sovereign immunity as an essential part of the Eleventh Amendment." Ante, at 67. This cannot be the "rationale," though, because this Court has repeatedly acknowledged that the Eleventh Amendment standing alone that one is forced to look elsewhere in order to understand how the Court could have gone so far wrong. Nor is there anything new or remarkable in taking such a look, for we have sought similar explanations in other cases. In Puerto Rico v. Branstad, 483 U. S. 219 (1987), for example, we suggested that the Court's holding in Kentucky v. Dennison, 24 How. 66 (1861), that "the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it," id., at 107, was influenced by "the looming shadow of a Civil War," Branstad, supra, at 227, and we ultimately determined that Dennison should be overruled, 483 U. S., at 230. The author of the Court's opinion today joined that analysis, as did the other Members of today's majority who were then on the Court. See ibid. (O'Connor, J., concurring in part and concurring in judgment) (joining the relevant por- tion of the majority opinion); id., at 231 (Scalia, J., concurring in part and concurring in judgment) (same). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 124 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting cannot bar a federal-question suit against a State brought by a state citizen. See, e. g., Edelman v. Jordan, 415 U. S. 651, 662 (1974) (acknowledging that "the Amendment by its terms does not bar suits against a State by its own citi- zens").18 Indeed, as I have noted, Justice Bradley's opinion in Hans conceded that Hans might successfully have pursued his claim "if there were no other reason or ground [other than the Amendment itself] for abating his suit." 134 U. S., at 10. The Hans Court, rather, held the suit barred by a non- constitutional common-law immunity. See supra, at 116­117. The "rationale" which the majority seeks to invoke is, I think, more nearly stated in its quotation from Principality of Monaco v. Mississippi, 292 U. S. 313, 321­323 (1934). There, the Court said that "we cannot rest with a mere lit- eral application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States." Id., at 322.19 This statement certainly is true to Hans, which 18 See also Georgia Railroad & Banking Co. v. Redwine, 342 U. S. 299, 304 (1952) (same); Fitts v. McGhee, 172 U. S. 516, 524 (1899) (same). Even Justice Scalia's dissent in Union Gas, the reasoning of which the major- ity adopts today, acknowledged that its view of sovereign immunity de- pended upon "some other constitutional principle beyond the immediate text of the Eleventh Amendment." 491 U. S., at 31 (opinion concurring in part and dissenting in part). To the extent that our prior cases do refer to Hans immunity as part of the Eleventh Amendment, they can only be referring to Justice Stevens's "other" Eleventh Amendment. Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 53 (1994) (Stevens, J., concurring); see also Pennsylvania v. Union Gas Co., supra, at 23­29 (Stevens, J., concurring) (same). 19 See also Union Gas, 491 U. S., at 31­32 (Scalia, J., concurring in part and dissenting in part) ("What we said in Hans was, essentially, that the Eleventh Amendment was important not merely for what it said but for what it reflected: a consensus that the doctrine of sovereign immunity, for States as well as for the Federal Government, was part of the understood background against which the Constitution was adopted, and which its jurisdictional provisions did not mean to sweep away"); Nevada v. Hall, 440 U. S., at 440 (Rehnquist, J., dissenting) (interpreting Monaco as 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 125 Souter, J., dissenting clearly recognized a pre-existing principle of sovereign im- munity, broader than the Eleventh Amendment itself, that will ordinarily bar federal-question suits against a noncon- senting State. That was the "rationale" which was suffi- cient to decide Hans and all of its progeny prior to Union Gas. But leaving aside the indefensibility of that rationale, which I will address further below, that was as far as it went. The majority, however, would read the "rationale" of Hans and its line of subsequent cases as answering the further question whether the "postulate" of sovereign immunity that "limit[s] and control[s]" the exercise of Article III jurisdic- tion, Monaco, supra, at 322, is constitutional in stature and therefore unalterable by Congress. It is true that there are statements in the cases that point toward just this conclu- sion. See, e. g., Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 98 (1984) ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III"); Ex parte New York, 256 U. S. 490, 497 (1921) ("[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . ."). These statements, however, are dicta in the classic sense, that is, sheer speculation about what would happen in cases not before the court.20 But this "rel[ying] on precepts underlying but not explicit in Art. III and the Eleventh Amendment"). 20 There are good reasons not to take many of these statements too seriously. Some are plainly exaggerated; for example, the suggestion in Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944), that "[a] state's freedom from litigation was established as a constitutional right through the Eleventh Amendment" obviously ignores a State's liability to suit by other States, see, e. g., South Dakota v. North Carolina, 192 U. S. 286 (1904), and by the National Government, see, e. g., United States v. Texas, 143 U. S. 621 (1892). See also Nevada v. Hall, supra, at 420, n. 19 (noting that "the Eleventh Amendment has not accorded the States abso- lute sovereign immunity in federal-court actions"). Similarly, statements such as in Ex parte New York, 256 U. S., at 497, that "the entire judicial 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 126 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting is not the only weakness of these statements, which are coun- terbalanced by many other opinions that have either stated the immunity principle without more, see, e. g., Dellmuth v. Muth, 491 U. S. 223, 229, n. 2 (1989) (noting that "an uncon- senting State is immune from liability for damages in a suit brought in federal court by one of its own citizens," without suggesting that the immunity was unalterable by Con- gress),21 or have suggested that the Hans immunity is not of constitutional stature. The very language quoted by the majority from Monaco, for example, likens state sovereign immunity to other "essential postulates" such as the rules of justiciability. 292 U. S., at 322. Many of those rules, as Justice Stevens points out, are prudential in nature and therefore not unalterable by Congress. See ante, at 88­90.22 More generally, the proponents of the Court's theory have repeatedly referred to state sovereign immunity as a "back- ground principle," ante, at 72, "postulate," Nevada v. Hall, 440 U. S., at 437 (Rehnquist, J., dissenting), or "implicit limitation," Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 496 (1987) (Scalia, J., concurring in part and concurring in judgment), and as resting on the "in- herent nature of sovereignty," Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944), rather than any explicit con- power granted by the Constitution does not embrace authority to enter- tain a suit brought by private parties against a State without consent given" should not necessarily be taken as affirming that Article III itself incorporated a constitutional immunity doctrine. How else to explain Jus- tice Harlan's concurring opinion in Hans, which stated, practically in the same breath, that "a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends," and that Chisholm "was based upon a sound interpretation of the Constitution as that instrument then was"? 134 U. S., at 21. 21 See also Georgia Railroad & Banking Co. v. Redwine, supra, at 304; Fitts v. McGhee, supra, at 524­525. 22 See also Warth v. Seldin, 422 U. S. 490, 501 (1975) ("Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules"); E. Chemerinsky, Federal Jurisdiction § 2.1, pp. 42­43 (2d ed. 1994). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 127 Souter, J., dissenting stitutional provision.23 But whatever set of quotations one may prefer, taking heed of such jurisprudential creations in assessing the contents of federal common law is a very differ- ent thing from reading them into the Founding Document itself. The most damning evidence for the Court's theory that Hans rests on a broad rationale of immunity unalterable by Congress, however, is the Court's proven tendency to disre- gard the post-Hans dicta in cases where that dicta would have mattered.24 If it is indeed true that "private suits against States [are] not permitted under Article III (by virtue of the understanding represented by the Eleventh Amendment)," Union Gas, 491 U. S., at 40 (Scalia, J., con- curring in part and dissenting in part), then it is hard to see how a State's sovereign immunity may be waived any more than it may be abrogated by Congress. See, e. g., Atasca- dero State Hospital v. Scanlon, 473 U. S., at 238 (recognizing that immunity may be waived). After all, consent of a party is in all other instances wholly insufficient to create subject- 23 Indeed, The Chief Justice could hardly have been clearer in Fry v. United States, 421 U. S. 542 (1975), where he explained that "[t]he Court's decision in Hans v. Louisiana, 134 U. S. 1 (1890), offers impressive author- ity for the principle that the States as such were regarded by the Framers of the Constitution as partaking of many attributes of sovereignty quite apart from the provisions of the Tenth Amendment. . . . "As it was not the Eleventh Amendment by its terms which justified the result in Hans, it is not the Tenth Amendment by its terms that prohibits congressional action which sets a mandatory ceiling on the wages of all state employees. Both Amendments are simply examples of the under- standing of those who drafted and ratified the Constitution that the States were sovereign in many respects, and that although their legislative au- thority could be superseded by Congress in many areas where Congress was competent to act, Congress was nonetheless not free to deal with a State as if it were just another individual or business enterprise subject to regulation." Id., at 556­557 (dissenting opinion). 24 Indeed, in Nevada v. Hall, supra, at 439, The Chief Justice com- plained in dissent that the same statements upon which he relies today had been "dismiss[ed] . . . as dicta." 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 128 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting matter jurisdiction where it would not otherwise exist. See, e. g., Sosna v. Iowa, 419 U. S. 393, 398 (1975); see also E. Chemerinsky, Federal Jurisdiction § 7.6, p. 405 (2d ed. 1994) (noting that "allowing such waivers seems inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts' subject matter jurisdiction"). Likewise, the Court's broad theory of immunity runs doubly afoul of the appellate jurisdiction problem that I noted earlier in reject- ing an interpretation of the Eleventh Amendment's text that would bar federal-question suits. See supra, at 109­116. If "the whole sum of the judicial power granted by the Con- stitution to the United States does not embrace the authority to entertain a suit brought by a citizen against his own State without its consent," Duhne v. New Jersey, 251 U. S. 311, 313 (1920), and if consent to suit in state court is not sufficient to show consent in federal court, see Atascadero, supra, at 241, then Article III would hardly permit this Court to exer- cise appellate jurisdiction over issues of federal law arising in lawsuits brought against the States in their own courts. We have, however, quite rightly ignored any post-Hans dicta in that sort of case and exercised the jurisdiction that the plain text of Article III provides. See, e. g., Fulton Corp. v. Faulkner, 516 U. S. 325 (1996); see also supra, at 113­114. If these examples were not enough to distinguish Hans's rationale of a pre-existing doctrine of sovereign immunity from the post-Hans dicta indicating that this immunity is constitutional, one would need only to consider a final set of cases: those in which we have assumed, without deciding, that congressional power to abrogate state sovereign immu- nity exists even when § 5 of the Fourteenth Amendment has no application. A majority of this Court was willing to make that assumption in Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96, 101 (1989) (plurality opinion), in Welch v. Texas Dept. of Highways and Public Transp., supra, at 475 (plurality opinion), and in County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 252 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 129 Souter, J., dissenting (1985).25 Although the Court in each of these cases failed to find abrogation for lack of a clear statement of congressional intent, the assumption that such power was available would hardly have been permissible if, at that time, today's majori- ty's view of the law had been firmly established. It is one thing, after all, to avoid an open constitutional question by assuming an answer and rejecting the claim on another ground; it is quite another to avoid a settled rationale (an emphatically settled one if the majority is to be taken seri- ously) only to reach an issue of statutory construction that the Court would otherwise not have to decide. Even worse, the Court could not have been unaware that its decision of cases like Hoffman and Welch, on the ground that the stat- utes at issue lacked a plain statement of intent to abrogate, would invite Congress to attempt abrogation in statutes like the Indian Gaming Regulatory Act, 25 U. S. C. § 2701 et seq. (IGRA). Such a course would have been wholly irresponsi- ble if, as the majority now claims, the constitutionally unal- terable nature of Hans immunity had been well established for a hundred years. Hans itself recognized that an "observation [in a prior case that] was unnecessary to the decision, and in that sense extra judicial . . . ought not to outweigh" present reasoning that points to a different conclusion. 134 U. S., at 20. That is good advice, which Members of today's majority have been willing to heed on other occasions. See, e. g., Kokkonen v. Guardian Life Ins. Co., 511 U. S. 375, 379 (1994) ("It is to the holdings of our cases, rather than their dicta, that we 25 In Hoffman, one Member of the four-Justice plurality expressly disa- vowed the plurality's assumption that Congress could abrogate the States' immunity by making its intent to do so clear. See 492 U. S., at 105 (O'Connor, J., concurring). The four dissenters, however, not only as- sumed that Congress had the power to abrogate but found that it had done so. See id., at 106 (Marshall, J., dissenting). Likewise, in Welch, the four-Justice plurality was joined by four dissenters who insisted upon a congressional power of abrogation. See 483 U. S., at 519 (Brennan, J., dissenting). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 130 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting must attend"); Bennis v. Michigan, 516 U. S. 442, 450 (1996). But because the Court disregards this norm today, I must consider the soundness of Hans's original recognition of a background principle of sovereign immunity that applies even in federal-question suits, and the reasons that counsel against the Court's extension of Hans's holding to the point of rendering its immunity unalterable by Congress. III Three critical errors in Hans weigh against constitutional- izing its holding as the majority does today. The first we have already seen: the Hans Court misread the Eleventh Amendment, see supra, at 118­123. It also misunderstood the conditions under which common-law doctrines were received or rejected at the time of the founding, and it fun- damentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State's im- munity to federal-question jurisdiction in a federal court. While I would not, as a matter of stare decisis, overrule Hans today, an understanding of its failings on these points will show how the Court today simply compounds already serious error in taking Hans the further step of investing its rule with constitutional inviolability against the considered judgment of Congress to abrogate it. A There is and could be no dispute that the doctrine of sover- eign immunity that Hans purported to apply had its origins in the "familiar doctrine of the common law," The Siren, 7 Wall. 152, 153 (1869), "derived from the laws and practices of our English ancestors," United States v. Lee, 106 U. S. 196, 205 (1882).26 Although statutes came to affect its impor- 26 The Court seeks to disparage the common-law roots of the doctrine, and the consequences of those roots which I outline infra, at 132­142 and 159­164, by asserting that Hans "found its roots not solely in the common law of England, but in the much more fundamental ` "jurisprudence in all 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 131 Souter, J., dissenting tance in the succeeding centuries, the doctrine was never reduced to codification, and Americans took their under- standing of immunity doctrine from Blackstone, see 3 W. Blackstone, Commentaries on the Laws of England, ch. 17 (1768). Here, as in the mother country, it remained a common-law rule. See generally Jaffe, 77 Harv. L. Rev., at 2­19; Borchard, Governmental Responsibility in Tort, VI, 36 Yale L. J. 1, 17­41 (1926). This fact of the doctrine's common-law status in the period covering the founding and the later adoption of the Eleventh Amendment should have raised a warning flag to the Hans Court and it should do the same for the Court today. For although the Court has persistently assumed that the com- mon law's presence in the minds of the early Framers must civilized nations." ' " Ante, at 69 (quoting Hans, 134 U. S., at 17). The Hans Court, however, relied explicitly on the ground that a suit against the State by its own citizen was "not known . . . at the common law" and was not among the departures from the common law recognized by the Constitution. Id., at 15. Moreover, Hans explicitly adopted the reason- ing of Justice Iredell's dissent in Chisholm, see 134 U. S., at 18­19, and that opinion could hardly have been clearer in relying exclusively on the common law. "The only principles of law . . . which can affect this case," Justice Iredell wrote, "[are] those that are derived from what is properly termed `the common law,' a law which I presume is the ground-work of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no spe- cial act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country." 2 Dall., at 435 (emphasis deleted). See also Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 288 (1973) (Marshall, J., concur- ring in result) ("Sovereign immunity is a common-law doctrine that long predates our Constitution and the Eleventh Amendment, although it has, of course, been carried forward in our jurisprudence"); R. Watkins, The State as a Party Litigant 51­52 (1927) ("It thus seems probable that the doctrine of state immunity was accepted rather as an existing fact by the people of the states, than adopted as a theory. It was a matter of univer- sal practice, and was accepted from the mother country along with the rest of the common law of England applicable to our changed state and condition"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 132 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting have functioned as a limitation on their understanding of the new Nation's constitutional powers, this turns out not to be so at all. One of the characteristics of the founding genera- tion, on the contrary, was its joinder of an appreciation of its immediate and powerful common-law heritage with caution in settling that inheritance on the political systems of the new Republic. It is not that the Framers failed to see them- selves to be children of the common law; as one of their con- temporaries put it, "[w]e live in the midst of the common law, we inhale it at every breath, imbibe it at every pore . . . [and] cannot learn another system of laws without learning at the same time another language." P. Du Ponceau, A Disserta- tion on the Nature and Extent of Jurisdiction of Courts of the United States 91 (1824). But still it is clear that the adoption of English common law in America was not taken for granted, and that the exact manner and extent of the common law's reception were subject to careful consideration by courts and legislatures in each of the new States.27 An examination of the States' experience with common-law re- ception will shed light on subsequent theory and practice at the national level, and demonstrate that our history is en- tirely at odds with Hans's resort to a common-law principle to limit the Constitution's contrary text. 1 This American reluctance to import English common law wholesale into the New World is traceable to the early colo- nial period. One scholar of that time has written that "[t]he 27 See, e. g., Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791, 796 (1951) ("Whether we emphasize the imitation by the colonists of the practices of English local courts or whether we say the early colonial judges were really applying their own common-sense ideas of justice, the fact remains that there was an incom- plete acceptance in America of English legal principles, and this indige- nous law which developed in America remained as a significant source of law after the Revolution"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 133 Souter, J., dissenting process which we may call the reception of the English com- mon law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal concep- tions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles." P. Reinsch, English Common Law in the Early American Colonies 58 (1899).28 For a variety of reasons, including the absence of trained lawyers and judges, the dearth of law books, the reli- gious and ideological commitments of the early settlers, and the novel conditions of the New World, the colonists turned to a variety of other sources in addition to principles of common law.29 It is true that, with the development of colonial society and the increasing sophistication of the colonial bar, English common law gained increasing acceptance in colonial prac- tice. See id., at 7­8; Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791, 28 See also Jones, The Common Law in the United States: English Themes and American Variations, in Political Separation and Legal Conti- nuity 95­98 (H. Jones ed. 1976) (Jones) (acknowledging that a true common-law system had not yet developed in the early colonial period); Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L. Rev. 393, 406­407 (1968) (same). 29 See, e. g., Reinsch, English Common Law in the Early American Colo- nies, at 7 (finding that the colonists developed their own "rude, popular, summary" system of justice despite professed adhesion to the common law); C. Hilkey, Legal Development in Colonial Massachusetts, 1630­1686, p. 69 (1967) (emphasizing Biblical and indigenous sources); Radin, The Ri- valry of Common-Law and Civil Law Ideas in the American Colonies, in 2 Law: A Century of Progress 404, 407­411 (1937) (emphasizing natural law and Roman law); Goebel, King's Law and Local Custom in Seven- teenth Century New England, 31 Colum. L. Rev. 416 (1931) (finding that the early settlers imported the law and procedure of the borough and manor courts with which they had been familiar in England). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 134 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting 797 (1951).30 But even in the late colonial period, Americans insisted that "the whole body of the common law . . . was not trans- planted, but only so much as was applicable to the colo- nists in their new relations and conditions. Much of the common law related to matters which were purely local, which existed under the English political organization, or was based upon the triple relation of king, lords and commons, or those peculiar social conditions, habits and customs which have no counterpart in the New World. Such portions of the common law, not being applicable to the new conditions of the colonists, were never recog- nised as part of their jurisprudence." Dale, The Adop- tion of the Common Law by the American Colonies, 30 Am. L. Reg. 553, 554 (1882).31 The result was that "the increasing influx of common-law principles by no means obliterated the indigenous systems which had developed during the colonial era and that there existed important differences in law in action on the two sides of the Atlantic." Hall, supra, at 797. 30 See also Stoebuck, supra, at 411­412 (indicating that the Colonies be- came significantly more receptive to the common law after 1700, in part because of a British desire to regularize colonial legal systems). 31 See also Jones 98 ("The selective nature of the reception is evident in any examination of the state of law in the colonies in the years immedi- ately preceding the Revolution"). An example is Trott's law, adopted by South Carolina in 1712, which declared which English statutes were in force in the Colony. Many laws of England, Trott conceded, were "alto- gether useless" in South Carolina "by reason of the different way of agri- culture and the differing productions of the earth of this Province from that of England"; others were "impracticable" because of differences in institutions. L. Friedman, A History of American Law 90­93 (2d ed. 1985); see also C. Warren, History of the American Bar 122­123 (1911) (quoting North Carolina statute, passed in 1715, providing that the com- mon law would be in force " `so far as shall be compatible with our way of living and trade' "). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 135 Souter, J., dissenting Understandably, even the trend toward acceptance of the common law that had developed in the late colonial period was imperiled by the Revolution and the ultimate break be- tween the Colonies and the old country. Dean Pound has observed that, "[f]or a generation after the Revolution, . . . political conditions gave rise to a general distrust of English law. . . . The books are full of illustrations of the hostility toward English law simply because it was English which pre- vailed at the end of the eighteenth and in the earlier years of the nineteenth century." R. Pound, The Formative Era of American Law 7 (1938); see also C. Warren, A History of the American Bar 224­225 (1911) (noting a "prejudice against the system of English Common Law" in the years following the Revolution). James Monroe went so far as to write in 1802 that " `the application of the principles of the English common law to our constitution' " should be consid- ered " `good cause for impeachment.' " Letter from James Monroe to John Breckenridge, Jan. 15, 1802 (quoted in 3 A. Beveridge, The Life of John Marshall: Conflict and Construc- tion 1800­1815, p. 59 (1919)).32 Nor was anti-English senti- 32 American hostility to things English was so pronounced for a time that Pennsylvania, New Jersey, and Kentucky proscribed by statute the citation of English decisions in their courts, and the New Hampshire courts promulgated a rule of court to the same effect. See Hall, 4 Vand. L. Rev., at 806; Warren, supra, at 227. This hostility may appear some- what paradoxical in view of the colonists' frequent insistence during the revolutionary crisis that they were entitled to common-law rights. See, e. g., First Continental Congress Declaration and Resolves (1774), in Docu- ments Illustrative of the Formation of the Union of the American States, H. R. Doc. No. 398, 69th Cong., 1st Sess., 1, 3 (C. Tansill ed. 1927) ("That the respective colonies are entitled to the common law of England"). In this context, however, the colonists were referring "not to the corpus of English case-law doctrine but to such profoundly valued common law pro- cedures as trial by jury and the subjection of governmental power to what John Locke had called the `standing laws,' " such as Magna Carta, the Petition of Right, the Bill of Rights of 1689, and the Act of Settlement of 1701. Jones 110; see also Jay, Origins of Federal Common Law: Part Two, 133 U. Pa. L. Rev. 1231, 1256 (1985) (Jay II) (noting that "Antifederalists 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 136 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting ment the only difficulty; according to Dean Pound, "[s]ocial and geographical conditions contributed also to make the work of receiving and reshaping the common law exception- ally difficult." Pound, supra, at 7. The consequence of this anti-English hostility and aware- ness of changed circumstances was that the independent States continued the colonists' practice of adopting only so much of the common law as they thought applicable to their local conditions.33 As Justice Story explained, "[t]he com- used the term common law to mean the great rights associated with due process"). The cardinal principles of this common-law vision were parlia- mentary supremacy and the rule of law, conceived as the axiom that "all members of society, government officials as well as private persons, are equally responsible to the law and . . . `equally amenable to the jurisdiction of ordinary tribunals.' " Jones 128­129 (quoting A. Dicey, Introduction to Study of the Law of Constitution 192 (9th ed. 1939)). It is hard to imagine that the doctrine of sovereign immunity, so profoundly at odds with both these cardinal principles, could have been imported to America as part of this more generalized common-law vision. 33 See, e. g., Conner v. Shepherd, 15 Mass. 164 (1818) (rejecting English common-law rule regarding assignment of dower rights as inapplicable to the state and condition of land in Massachusetts); Parker & Edgarton v. Foote, 19 Wend. 309, 318 (N. Y. 1838) (rejecting English rule entitling a landowner to damages for the stopping of his lights; the court noted that "[i]t cannot be necessary to cite cases to prove that those portions of the common law of England which are hostile to the spirit of our institutions, or which are not adapted to the existing state of things in this country, form no part of our law"); Fitch v. Brainerd, 2 Conn. 163, 189 (1805) (ac- cepting English common-law rule barring married woman from disposing of her real estate by will, and observing that "it long since became neces- sary . . . to make [the English common law] our own, by practical adop- tion-with such exceptions as a diversity of circumstances, and the incipi- ent customs of our own country, required") (emphasis in original); Martin v. Bigelow, 2 Aiken 184 (Vt. 1827) (declaring English common law as to stream rights inappropriate for conditions of Vermont waterways); Hall v. Smith, 1 Bay 330, 331 (S. C. Sup. Ct. 1793) (refusing to apply strict English rules regarding promissory notes as unsuited to the "local situa- tion of Carolina"). See also Hall, supra, at 805 ("[A] review of the cases shows that no matter what the wording of the reception statute or consti- tutional provision of the particular state, the rule developed, which was 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 137 Souter, J., dissenting mon law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its gen- eral principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." Van Ness v. Pacard, 2 Pet. 137, 144 (1829). In 1800, John Marshall had expressed the similar view that "our ancestors brought with them the laws of England, both statute & common law as existing at the settlement of each colony, so far as they were applicable to our situation." Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, at 1326, 1327. Accordingly, in the period following independence, "[l]egislatures and courts and doctrinal writers had to test the common law at every point with respect to its applicabil- ity to America." Pound, supra, at 20; see also Jones 103 (observing that "suitab[ility] to local institutions and condi- tions" was "incomparably the most important" principle of reception in the new States). 2 While the States had limited their reception of English common law to principles appropriate to American condi- tions, the 1787 draft Constitution contained no provision for adopting the common law at all. This omission stood in sharp contrast to the state constitutions then extant, virtu- ally all of which contained explicit provisions dealing with common-law reception. See n. 55, infra. Since the experi- ence in the States set the stage for thinking at the national level, see generally G. Wood, Creation of the American Re- public, 1776­1787, p. 467 (1969) (Wood), this failure to ad- dress the notion of common-law reception could not have been inadvertent. Instead, the Framers chose to recognize only particular common-law concepts, such as the writ of ha- sooner or later to be repeated in practically every American jurisdiction, that only those principles of the common law were received which were applicable to the local situation"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 138 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting beas corpus, U. S. Const., Art. I, § 9, cl. 2, and the distinction between law and equity, U. S. Const., Amdt. 7, by specific reference in the constitutional text. See 1 J. Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, pp. 229­ 230 (1971).34 This approach reflected widespread agreement that ratification would not itself entail a general reception of the common law of England. See Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, at 1326 ("I do not believe one man can be found" who maintains "that the common law of England has . . . been adopted as the common law of America by the Constitution of the United States"); Jay II, at 1255 (noting that the use of the term "laws" in Article III "could not have been meant to accomplish a general reception of British common law"). Records of the ratification debates support Marshall's un- derstanding that everyone had to know that the new Consti- tution would not draw the common law in its train. Anti- federalists like George Mason went so far as to object that 34 See also Jones 123­124 (noting that the common-law institutions of habeas corpus and jury trial were "not merely received as ordinary law," but rather "received by [specific textual provisions] of the Constitution itself, as part of the supreme law of the land"). Sovereign immunity, of course, was not elevated to constitutional status in this way; such immu- nity thus stands on the same footing as any other common-law principle which the Framers refused to place beyond the reach of legislative change. That such principles were and are subject to legislative alteration is con- firmed by our treatment of other forms of common-law immunities, such as the immunity enjoyed under certain circumstances by public officials. Butz v. Economou, 438 U. S. 478, 508 (1978) (officer immunity is derived from the common law); Imbler v. Pachtman, 424 U. S. 409, 421 (1976) (same). In this context, "our immunity decisions have been informed by the common law" only "in the absence of explicit . . . congressional guid- ance." Nixon v. Fitzgerald, 457 U. S. 731, 747 (1982). See generally ante, at 87­88 (Stevens, J., dissenting); Jackson, 98 Yale L. J., at 75­104. Surely no one would deny Congress the power to abrogate those immuni- ties if it should so choose. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 139 Souter, J., dissenting under the proposed Constitution the people would not be "secured even in the enjoyment of the benefit of the common law." Mason, Objections to This Constitution of Govern- ment, in 2 Records of the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand); see also 3 Elliot's Debates 446­449 (Patrick Henry, Virginia Convention). In particu- lar, the Antifederalists worried about the failure of the pro- posed Constitution to provide for a reception of "the great rights associated with due process" such as the right to a jury trial, Jay II, at 1256, and they argued that "Congress's powers to regulate the proceedings of federal courts made the fate of these common-law procedural protections uncer- tain," id., at 1257.35 While Federalists met this objection by arguing that nothing in the Constitution necessarily ex- cluded the fundamental common-law protections associated with due process, see, e. g., 3 Elliot's Debates 451 (George Nicholas, Virginia Convention), they defended the decision against any general constitutional reception of the common law on the ground that constitutionalizing it would render it "immutable," see id., at 469­470 (Edmund Randolph, Vir- ginia Convention), and not subject to revision by Congress, id., at 550 (Edmund Pendleton, Virginia Convention); see also infra, at 163­164. The Framers also recognized that the diverse development of the common law in the several States made a general fed- eral reception impossible. "The common law was not the same in any two of the Colonies," Madison observed; "in some the modifications were materially and extensively dif- ferent." Report on the Virginia Resolutions, House of Dele- gates, Session of 1799­1800, Concerning Alien and Sedition Laws, in 6 Writings of James Madison 373 (G. Hunt ed. 1906) 35 See, e. g., 2 Elliot's Debates 400 (Thomas Tredwell, New York Conven- tion) ("[W]e are ignorant whether [federal proceedings] shall be according to the common, civil, the Jewish, or Turkish law . . ."). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 140 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting (Alien and Sedition Laws).36 In particular, although there is little evidence regarding the immunity enjoyed by the var- ious colonial governments prior to the Revolution, the pro- found differences as to the source of colonial authority be- tween chartered colonies, royal colonies, and so on seems unlikely, wholly apart from other differences in circumstance, to have given rise to a uniform body of immunity law. There was not, then, any unified "Common Law" in America that the Federal Constitution could adopt, Jay I, at 1056; Stoebuck, Reception of English Common Law in the Ameri- can Colonies, 10 Wm. & Mary L. Rev. 393, 401 (1968) ("The assumption that colonial law was essentially the same in all colonies is wholly without foundation"), and, in particular, probably no common principle of sovereign immunity, cf. Alien and Sedition Laws 376. The Framers may, as Madi- son, Hamilton, and Marshall argued, have contemplated that federal courts would respect state immunity law in diversity cases, but the generalized principle of immunity that today's majority would graft onto the Constitution itself may well never have developed with any common clarity and, in any event, has not been shown to have existed. Finally, the Framers' aversion to a general federal recep- tion of the common law is evident from the Federalists' re- 36 See also Justice Jay's Charge to the Grand Jury for the District of New York (Apr. 4, 1790) (observing that at the time the Nation was formed, "[o]ur jurisprudence varied in almost every State, and was accom- modated to local, not general convenience-to partial, not national policy") (quoted in Jay, Origins of Federal Common Law: Part One, 133 U. Pa. L. Rev. 1003, 1056, n. 261 (1985) (Jay I)); United States v. Worrall, 28 F. Cas. 774, 779 (No. 16,766) (CC Pa. 1798) (Chase, J.) (noting that "[t]he common law . . . of one state, is not the common law of another"); 8 Annals of Cong. 2137 (1798) (statement of Rep. Albert Gallatin) (asserting that there could be no national common law because "[t]he common law of Great Britain received in each colony, had in every one received modifications arising from their situation . . . and now each State had a common law, in its general principles the same, but in many particulars differing from each other"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 141 Souter, J., dissenting sponse to the Antifederalist claim that Article III granted an unduly broad jurisdiction to the federal courts. That re- sponse was to emphasize the limited powers of the National Government. See, e. g., 3 Elliot's Debates 553 (John Mar- shall, Virginia Convention) ("Has the government of the United States power to make laws on every subject? . . . Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers?"); Jay II, at 1260.37 That answer assumes, of course, no generalized re- ception of English common law as federal law; otherwise, "arising under" jurisdiction would have extended to any sub- ject comprehended by the general common law. Madison made this assumption absolutely clear during the subsequent debates over the Alien and Sedition Acts, which raised the issue of whether the Framers intended to recog- nize a general federal jurisdiction to try common-law crimes. Rejecting the idea of any federal reception, Madison in- sisted that "the consequence of admitting the common law as the law of the United States, on the authority of the individ- ual States, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the Constitutions and laws of the States, the admission of it would overwhelm the residuary sov- ereignty of the States, and by one constructive opera- tion new model the whole political fabric of the country." Alien and Sedition Laws 381. See also 1 Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States, at 651­655 (discuss- 37 See also Jay II, at 1241­1250 (arguing that Jeffersonian Republicans resisted the idea of a general federal reception of the common law as an incursion on States' rights); Jay I, at 1111 (same). Given the roots of the Framers' resistance, the Court's reception of the English common law into the Constitution itself in the very name of state sovereignty goes beyond the limits of irony. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 142 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting ing the lack of evidence to support the proposition that the Framers intended a general reception of the English com- mon law through the Constitution); Jay II, at 1254 (arguing that "[i]t would have been untenable to maintain that the body of British common law had been adopted by the Consti- tution . . . "). Madison concluded that "[i]t is . . . distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law-a law filling so many ample volumes; a law over- spreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers." Alien and Sedition Laws 382. B Given the refusal to entertain any wholesale reception of common law, given the failure of the new Constitution to make any provision for adoption of common law as such, and given the protests already quoted that no general reception had occurred, the Hans Court and the Court today cannot reasonably argue that something like the old immunity doc- trine somehow slipped in as a tacit but enforceable back- ground principle. But see ante, at 72. The evidence is even more specific, however, that there was no pervasive under- standing that sovereign immunity had limited federal- question jurisdiction. 1 As I have already noted briefly, see supra, at 105­106, the Framers and their contemporaries did not agree about the 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 143 Souter, J., dissenting place of common-law state sovereign immunity even as to federal jurisdiction resting on the Citizen-State Diversity Clauses. Edmund Randolph argued in favor of ratification on the ground that the immunity would not be recognized, leaving the States subject to jurisdiction.38 Patrick Henry opposed ratification on the basis of exactly the same reading. See 3 Elliot's Debates 543. On the other hand, James Madi- son, John Marshall, and Alexander Hamilton all appear to have believed that the common-law immunity from suit would survive the ratification of Article III, so as to be at a State's disposal when jurisdiction would depend on diversity. This would have left the States free to enjoy a traditional immunity as defendants without barring the exercise of judi- cial power over them if they chose to enter the federal courts as diversity plaintiffs or to waive their immunity as diversity defendants. See id., at 533 (Madison: the Constitution "give[s] a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it"); 39 id., at 556 (Marshall: "I see a diffi- 38 See 3 Elliot's Debates 573 (the Constitution would "render valid and effective existing claims" against the States). See also 2 id., at 491 (James Wilson, in the Pennsylvania ratification debate: "When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing"). Wilson, as I noted above, took a similar position in addressing the federal question, or arising under, clause, remarking that the effect of the clause would be to require States to honor pre-Revolutionary debt owed to English merchants, as had been promised in the Treaty of 1783. See n. 4, supra. 39 The Court accuses me of quoting this statement out of context, ante, at 70, n. 12, but the additional material included by the Court makes no difference. I am conceding that Madison, Hamilton, and Marshall all agreed that Article III did not of its own force abrogate the States' pre- existing common-law immunity, at least with respect to diversity suits. None of the statements offered by the Court, however, purports to deal with federal-question jurisdiction or with the question whether Congress, acting pursuant to its Article I powers, could create a cause of action against a State. As I explain further below, the views of Madison and his 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 144 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting culty in making a state defendant, which does not prevent its being plaintiff"). As Hamilton stated in The Federalist No. 81: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless therefore, there is a surren- der of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal." The Federalist No. 81, pp. 548­549 (J. Cooke ed. 1961). See generally Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Af- firmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1045­1054 (1983) (discussing the adoption of the Citizen-State Diversity Clauses); Gibbons, 83 Colum. L. Rev., at 1902­1914. The majority sees in these statements, and chiefly in Hamilton's discussion of sovereign immunity in The Federalist No. 81, an unequivocal mandate "which would preclude all federal jurisdiction over an unconsenting State." Ante, at 70. But there is no such mandate to be found. As I have already said, the immediate context of Hamil- ton's discussion in Federalist No. 81 has nothing to do with federal-question cases. It addresses a suggestion "that an assignment of the public securities of one state to the citizens of another, would enable them to prosecute that state in the federal courts for the amount of those securities." The Fed- eralist No. 81, at 548. Hamilton is plainly talking about a allies on this more difficult question can be divined, if at all, only by refer- ence to the more extended discussions by Hamilton in The Federalist No. 32, and by Justice Iredell in his Chisholm dissent. Both those dis- cussions, I submit, tend to support a congressional power of abrogation. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 145 Souter, J., dissenting suit subject to a federal court's jurisdiction under the Citizen-State Diversity Clauses of Article III. The general statement on sovereign immunity emphasized by the majority then follows, along with a reference back to The Federalist No. 32. The Federalist No. 81, at 548. What Hamilton draws from that prior paper, however, is not a general conclusion about state sovereignty but a particular point about state contracts: "A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." Id., at 549. The most that can be inferred from this is, as noted above, that in diversity cases applying state contract law the immu- nity that a State would have enjoyed in its own courts is carried into the federal court. When, therefore, the Hans Court relied in part upon Hamilton's statement, see 134 U. S., at 20, its reliance was misplaced; Hamilton was ad- dressing diversity jurisdiction, whereas Hans involved federal-question jurisdiction under the Contracts Clause. No general theory of federal-question immunity can be in- ferred from Hamilton's discussion of immunity in contract suits. But that is only the beginning of the difficulties that accrue to the majority from reliance on The Federalist No. 81.Hamilton says that a State is "not . . . amenable to the suit of an individual without its consent . . . . [u]nless . . . there is a surrender of this immunity in the plan of the convention." The Federalist No. 81, at 548­549 (emphasis deleted). He 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 146 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting immediately adds, however, that "[t]he circumstances which are necessary to produce an alienation of state sovereignty, were discussed in considering the article of taxation, and need not be repeated here." Id., at 549. The reference is to The Federalist No. 32, also by Hamilton, which has this to say about the alienation of state sovereignty: "[A]s the plan of the Convention aims only at a partial Union or consolidation, the State Governments would clearly retain all the rights of sovereignty which they before had and which were not by that act exclusively delegated to the United States. This exclusive delega- tion or rather this alienation of State sovereignty would only exist in three cases; where the Constitution in ex- press terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union and in another prohibited the States from exercis- ing the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and re- pugnant. I use these terms to distinguish this last case from another which might appear to resemble it; but which would in fact be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitu- tional authority." Id., at 200 (emphasis in original). As an instance of the last case, in which exercising con- current jurisdiction may produce interferences in "policy," Hamilton gives the example of concurrent power to tax the same subjects: "It is indeed possible that a tax might be laid on a partic- ular article by a State which might render it inexpedient that thus a further tax should be laid on the same article 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 147 Souter, J., dissenting by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an in- crease on either side, would be mutually questions of prudence; but there would be involved no direct contra- diction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal for- bearances. It is not however a mere possibility of in- convenience in the exercise of powers, but an immediate constitutional repugnancy, that can by implication alien- ate and extinguish a pre-existing right of sovereignty." Id., at 202 (emphasis in original). The first embarrassment Hamilton's discussion creates for the majority turns on the fact that the power to regulate commerce with Indian tribes has been interpreted as making "Indian relations . . . the exclusive province of federal law." County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S., at 234.40 We have accordingly recognized that "[s]tate laws generally are not applicable to tribal Indians on an In- dian reservation except where Congress has expressly pro- vided that State laws shall apply." McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 170­171 (1973) (internal quotation marks omitted); see also Rice v. Olson, 324 U. S. 786, 789 (1945) ("The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's 40 See also Worcester v. Georgia, 6 Pet. 515, 560­561 (1832) ("The Chero- kee nation . . . is a distinct community . . . in which the laws of Georgia can have no force. . . . The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States"). This Court has repeatedly rejected state at- tempts to assert sovereignty over Indian lands. See, e. g., The New York Indians, 5 Wall. 761, 769 (1867) (rejecting state attempt to tax reservation lands); Worcester, supra, at 561­563 (nullifying an attempted prosecution by the State of Georgia of a person who resided on Indian lands in viola- tion of state law). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 148 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting history").41 We have specifically held, moreover, that the States have no power to regulate gambling on Indian lands. California v. Cabazon Band of Mission Indians, 480 U. S. 202, 221­222 (1987). In sum, since the States have no sover- eignty in the regulation of commerce with the tribes, on Hamilton's view there is no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce. If Hamilton is good authority, the majority of the Court today is wrong. Quite apart, however, from its application to this particu- lar Act of Congress exercising the Indian commerce power, Hamilton's sovereignty discussion quoted above places the Court in an embarrassing dilemma. Hamilton posited four categories: congressional legislation on (a) subjects com- mitted expressly and exclusively to Congress, (b) subjects over which state authority is expressly negated, (c) subjects over which concurrent authority would be impossible (as "contradictory and repugnant"), and (d) subjects over which concurrent authority is not only possible, but its exercise by both is limited only by considerations of policy (as when one taxing authority is politically deterred from adding too much to the exaction the other authority is already making). But what of those situations involving concurrent powers, like the power over interstate commerce, see, e. g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852) (recognizing power of States to engage in some regulation of interstate commerce), when a congressional statute not only binds the States but even creates an affirmative obligation on the State 41 Although we have rejected a per se bar to state jurisdiction, it is clear that such jurisdiction remains the exception and not the rule. See New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 331­332 (1983) (footnotes omitted) ("[U]nder certain circumstances a State may validly assert authority over the activities of nonmembers on a reservation, and . . . in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 149 Souter, J., dissenting as such, as in this case? Hamilton's discussion does not seem to cover this (quite possibly because, as a good political polemicist, he did not wish to raise it). If in fact it is fair to say that Hamilton does not cover this situation, then the Court cannot claim him as authority for the preservation of state sovereignty and consequent immunity. If, however, on what I think is an implausible reading, one were to try to shoehorn this situation into Hamilton's category (c) (on the theory that concurrent authority is impossible after passage of the congressional legislation), then any claim of sover- eignty and consequent immunity is gone entirely. In sum, either the majority reads Hamilton as I do, to say nothing about sovereignty or immunity in such a case, or it will have to read him to say something about it that bars any state immunity claim. That is the dilemma of the majority's reliance on Hamilton's The Federalist No. 81, with its ref- erence to No. 32. Either way, he is no authority for the Court's position. Thus, the Court's attempt to convert isolated statements by the Framers into answers to questions not before them is fundamentally misguided.42 The Court's difficulty is far more fundamental, however, than inconsistency with a par- ticular quotation, for the Court's position runs afoul of the general theory of sovereignty that gave shape to the Fram- ers' enterprise. An enquiry into the development of that concept demonstrates that American political thought had so revolutionized the concept of sovereignty itself that calling 42 See The Federalist No. 82, p. 553 (J. Cooke ed. 1961) (A. Hamilton) (disclaiming any intent to answer all the "questions of intricacy and nicety" arising in a judicial system that must accommodate "the total or partial incorporation of a number of distinct sovereignties"); S. Elkins & E. McKitrick, The Age of Federalism 64 (1993) (suggesting that "[t]he amount of attention and discussion given to the judiciary in the Constitu- tional Convention was only a fraction of that devoted to the executive and legislative branches," and that the Framers deliberately left many ques- tions open for later resolution). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 150 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting for the immunity of a State as against the jurisdiction of the national courts would have been sheer illogic. 2 We said in Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991), that "the States entered the federal system with their sovereignty intact," but we surely did not mean that they entered that system with the sovereignty they would have claimed if each State had assumed inde- pendent existence in the community of nations, for even the Articles of Confederation allowed for less than that. See Articles of Confederation, Art. VI, § 1 ("No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state . . ."). While there is no need here to calculate exactly how close the American States came to sovereignty in the classic sense prior to ratification of the Constitution, it is clear that the act of ratification affected their sovereignty in a way different from any previous politi- cal event in America or anywhere else. For the adoption of the Constitution made them members of a novel federal sys- tem that sought to balance the States' exercise of some sov- ereign prerogatives delegated from their own people with the principle of a limited but centralizing federal supremacy. As a matter of political theory, this federal arrangement of dual delegated sovereign powers truly was a more revolu- tionary turn than the late war had been. See, e. g., U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring) ("Federalism was our Nation's own discovery. The Framers split the atom of sover- eignty").43 Before the new federal scheme appeared, 18th- 43 Regardless of its other faults, Chief Justice Taney's opinion in Dred Scott v. Sandford, 19 How. 393 (1857), recognized as a structural matter that "[t]he new Government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 151 Souter, J., dissenting century political theorists had assumed that "there must re- side somewhere in every political unit a single, undivided, final power, higher in legal authority than any other power, subject to no law, a law unto itself." B. Bailyn, The Ideologi- cal Origins of the American Revolution 198 (1967); see also Wood 345.44 The American development of divided sover- eign powers, which "shatter[ed] . . . the categories of govern- ment that had dominated Western thinking for centuries," id., at 385, was made possible only by a recognition that the ultimate sovereignty rests in the people themselves. See id., at 530 (noting that because "none of these arguments about `joint jurisdictions' and `coequal sovereignties' convinc- ingly refuted the Antifederalist doctrine of a supreme and indivisible sovereignty," the Federalists could succeed only by emphasizing that the supreme power " `resides in the PEOPLE, as the fountain of government' " (citing 1 Penn- sylvania and the Federal Constitution, 1787­1788, p. 302 (J. McMaster & F. Stone eds. 1888) (quoting James Wilson)).45 The People possessing this plenary bundle of specific powers clothed with all the rights, and bound by all the obligations of the preced- ing one." Id., at 441. See also F. McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 276 (1985) ("The constitutional re- allocation of powers created a new form of government, unprecedented under the sun . . ."); S. Beer, To Make a Nation: The Rediscovery of Ameri- can Federalism 150­151 (1993) (American view of sovereignty was "radi- cally different" from that of British tradition). 44 Cf., e. g., 1 W. Blackstone, Commentaries 49, 160­162 (Cooper ed. 1803). This modern notion of sovereignty is traceable to the writings of Jean Bodin in the late 16th century. See J. Bodin, Six Books of the Common- wealth, bk. 2, ch. I, pp. 52­53 (M. Tooley, abr. & transl. 1967) (1576); see also T. Hobbes, Leviathan, Part II, ch. 29, pp. 150­151 (N. Fuller ed. 1952) (1651). 45 See Wood 530 (noting that James Wilson "[m]ore boldly and fully than anyone else . . . developed the argument that would eventually become the basis of all Federalist thinking" about sovereignty); see also The Federal- ist No. 22, at 146 (A. Hamilton) (acknowledging the People as "that pure original fountain of all legitimate authority"); id., No. 49, at 339 (J. Madi- son) ("[T]he people are the only legitimate fountain of power"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 152 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting were free to parcel them out to different governments and different branches of the same government as they saw fit. See F. McDonald, Novus Ordo Seclorum: The Intellectual Or- igins of the Constitution 278 (1985). As James Wilson em- phasized, the location of ultimate sovereignty in the People meant that "[t]hey can distribute one portion of power to the more contracted circle called State governments; they can also furnish another proportion to the government of the United States." 1 Pennsylvania and the Federal Constitu- tion, 1787­1788, supra, at 302.46 Under such a scheme, Alexander Hamilton explained, "[i]t does not follow . . . that each of the portions of powers dele- gated to [the national or state government] is not sovereign with regard to its proper objects." Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton 98 (Syrett ed. 1965) (emphasis in orig- inal).47 A necessary consequence of this view was that "the Government of the United States has sovereign power as to its declared purposes & trusts." Ibid. Justice Iredell was to make the same observation in his Chisholm dissent, com- menting that "[t]he United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved." 2 Dall., at 435. And to the same point was Chief Justice Mar- 46 See also U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring) (the Constitution "created a legal system un- precedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it"). 47 See Amar, 96 Yale L. J., at 1434­1435 ("The ultimate American answer [to the British notion that the sovereign was by definition above the law], in part, lay in a radical redefinition of governmental `sovereignty.' Just as a corporation could be delegated limited sovereign privileges by the King-in-Parliament, so governments could be delegated limited powers to govern. Within the limitations of their charters, governments could be sovereign, but that sovereignty could be bounded by the terms of the delegation itself" (footnote omitted)). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 153 Souter, J., dissenting shall's description of the National and State Governments as "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." McCulloch v. Maryland, 4 Wheat. 316, 410 (1819). Given this metamorphosis of the idea of sovereignty in the years leading up to 1789, the question whether the old immu- nity doctrine might have been received as something suit- able for the new world of federal-question jurisdiction is a crucial one.48 The answer is that sovereign immunity as it would have been known to the Framers before ratification thereafter became inapplicable as a matter of logic in a fed- eral suit raising a federal question. The old doctrine, after all, barred the involuntary subjection of a sovereign to the system of justice and law of which it was itself the font, since to do otherwise would have struck the common-law mind from the Middle Ages onward as both impractical and ab- surd. See, e. g., Kawananakoa v. Polyblank, 205 U. S. 349, 353 (1907) (Holmes, J.) ("A sovereign is exempt from suit . . . on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends").49 But the ratification demonstrated 48 See, e. g., Amar, supra, at 1436 ("By thus relocating true sovereignty in the People themselves . . . Americans domesticated government power and decisively repudiated British notions of `sovereign' governmental om- nipotence" (footnote omitted)). That this repudiation extended to tradi- tional principles of sovereign immunity is clear from Justice Wilson's opin- ion in Chisholm, in which he blasted "the haughty notions of state independence, state sovereignty and state supremacy" as allowing "the state [to] assum[e] a supercilious pre-eminence above the people who have formed it." 2 Dall., at 461. 49 See also Hobbes, supra, at 130 ("The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws. . . . For he is free that can be free when he will: nor is it possible for any person to be bound to himself, because he that can bind can release; and therefore he that is bound to himself only is not bound"); Bodin, supra, at 28­29 ("One may be subject to laws made by another, but it is impossible to bind oneself in any matter which is the subject of one's own free exercise of 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 154 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting that state governments were subject to a superior regime of law in a judicial system established, not by the State, but by the people through a specific delegation of their sovereign power to a National Government that was paramount within its delegated sphere. When individuals sued States to en- force federal rights, the Government that corresponded to the "sovereign" in the traditional common-law sense was not the State but the National Government, and any state immu- nity from the jurisdiction of the Nation's courts would have required a grant from the true sovereign, the people, in their Constitution, or from the Congress that the Constitution had empowered. We made a similar point in Nevada v. Hall, 440 U. S., at 416, where we considered a suit against a State in another State's courts: "This [traditional] explanation [of sovereign immunity] adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or im- plied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity." Cf. United States v. Texas, 143 U. S. 621, 646 (1892) (recogniz- ing that a suit by the National Government against a State "does no violence to the inherent nature of sovereignty"). Subjecting States to federal jurisdiction in federal-question cases brought by individuals thus reflected nothing more than Professor Amar's apt summary that "[w]here govern- ments are acting within the bounds of their delegated `sover- eign' power, they may partake of sovereign immunity; where will. . . . It follows of necessity that the king cannot be subject to his own laws"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 155 Souter, J., dissenting not, not." Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1490­1491, n. 261 (1987). State immunity to federal-question jurisdiction would, moreover, have run up against the common understanding of the practical necessity for the new federal relationship. According to Madison, the "multiplicity," "mutability," and "injustice" of then-extant state laws were prime factors re- quiring the formation of a new government. 1 Farrand 318­ 319 (remarks of J. Madison).50 These factors, Madison wrote to Jefferson, "contributed more to that uneasiness which produced the Convention, and prepared the Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confedera- tion to its immediate objects." 5 Writings of James Madison 27 (G. Hunt ed. 1904). These concerns ultimately found con- crete expression in a number of specific limitations on state power, including provisions barring the States from enacting bills of attainder or ex post facto laws, coining money or emitting bills of credit, denying the privileges and immuni- ties of out-of-staters, or impairing the obligation of contracts. But the proposed Constitution also dealt with the old prob- lems affirmatively by granting the powers to Congress enu- merated in Article I, § 8, and by providing through the Su- premacy Clause that Congress could pre-empt state action in areas of concurrent state and federal authority. Given the Framers' general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the National Government powerless to render the States judi- cially accountable for violations of federal rights. And of course the Framers did not understand the scheme to leave 50 See also Wood 466 ("[O]nce men grasped, as they increasingly did in the middle [1780's], that reform of the national government was the best means of remedying the evils caused by the state governments, then the revision of the Articles of Confederation assumed an impetus and an im- portance that it had not had a few years earlier"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 156 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting the Government powerless. In The Federalist No. 80, at 535, Hamilton observed that "[n]o man of sense will believe that such prohibitions [running against the States] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them," and that "an authority in the federal courts, to over-rule such as might be in manifest contravention of the articles of union" was the Convention's preferred remedy. By speak- ing in the plural of an authority in the federal "courts," Ham- ilton made it clear that he envisioned more than this Court's exercise of appellate jurisdiction to review federal questions decided by state courts. Nor is it plausible that he was thinking merely of suits brought against States by the Na- tional Government itself, which The Federalist's authors did not describe in the paternalistic terms that would pass with- out an eyebrow raised today. Hamilton's power of the Gov- ernment to restrain violations of citizens' rights was a power to be exercised by the federal courts at the citizens' behest. See also Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342, 1367­1371 (1989) (dis- cussing the Framers' concern with preserving as much state accountability as possible even in the course of enacting the Eleventh Amendment). This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the preratification debate on state sovereign immunity, which in turn becomes entirely intelligible both in what it addressed and what it ignored. It is understandable that reasonable minds differed on the applicability of the immunity doctrine in suits that made it to federal court only under the original Diversity Clauses, for their features were not wholly novel. While they were, of course, in the courts of the new and, for some purposes, paramount National Government, the law that they implicated was largely the old common law (and in any case was not federal law). It was not foolish, therefore, 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 157 Souter, J., dissenting to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federal- question cases. The very idea of a federal question de- pended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf., e. g., Jay II, at 1282­1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States, at 6­7.51 The Framers' principal objectives in re- jecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign im- munity had taken its place in federal-question cases, and would have been substantially thwarted if that new immu- nity had been held to be untouchable by any congressional effort to abrogate it.52 51 Cf. Jay I, at 1033­1034 ("English common law might afford clues to the meaning of some terms in the Constitution, but the absence of any close federal model was recognized even at the Convention"); F. Coker, Commentary, in R. Pound, C. McIlwain, & R. Nichols, Federalism as a Democratic Process 81­82 (1942). 52 See, e. g., Prout v. Starr, 188 U. S. 537, 543 (1903) (acknowledging the immunity recognized in Hans and other cases, but observing that "[i]t would, indeed, be most unfortunate if the immunity of the individual States from suits by citizens of other States, provided for in the Eleventh Amendment, were to be interpreted as nullifying those other provisions which confer power on Congress . . . all of which provisions existed before the adoption of the Eleventh Amendment, which still exist, and which would be nullified and made of no effect, if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional limitations"). The majority contends that state compliance with federal law may be enforced by other means, ante, at 71, n. 14, but its suggestions are all pretty cold comfort: the enforcement resources of the Federal Government itself are limited; appellate review of state court decisions is contingent upon state consent to suit in state court, and is also called into question by the majority's rationale, see supra, at 114; and the Court's decision today illustrates 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 158 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting Today's majority discounts this concern. Without citing a single source to the contrary, the Court dismisses the histori- cal evidence regarding the Framers' vision of the relation- ship between national and state sovereignty, and reassures us that "the Nation survived for nearly two centuries with- out the question of the existence of [the abrogation] power ever being presented to this Court." Ante, at 71.53 But we are concerned here not with the survival of the Nation but the opportunity of its citizens to enforce federal rights in a way that Congress provides. The absence of any general federal-question statute for nearly a century following rati- fication of Article III (with a brief exception in 1800) hardly counts against the importance of that jurisdiction either in the Framers' conception or in current reality; likewise, the fact that Congress has not often seen fit to use its power of abrogation (outside the Fourteenth Amendment context, at least) does not compel a conclusion that the power is not important to the federal scheme. In the end, is it plausible the uncertainty that the Court will always permit enforcement of federal law by suits for prospective relief against state officers. Moreover, the majority's position ignores the importance of citizen suits to enforcement of federal law. See, e. g., Alyeska Pipeline Service Co. v. Wilderness Soci- ety, 421 U. S. 240, 263 (1975) (acknowledging that, in many instances, "Con- gress has opted to rely heavily on private enforcement to implement public policy"); see also S. Rep. No. 94­1011, p. 2 (Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. § 1988) (recognizing that "[a]ll of these civil rights laws depend heavily upon private enforcement"); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U. S. 711, 737 (1987) (Blackmun, J., dissenting) (noting importance of citizens' suits under fed- eral environmental laws). 53 The Court's further assertion, that "Congress itself waited nearly a century before even conferring federal-question jurisdiction on the lower federal courts," ante, at 71, is simply incorrect. As I have noted, numer- ous early statutes conferred federal-question jurisdiction on the federal courts operating under the original Judiciary Act in particular kinds of cases, and the Judiciary Act of 1800 provided for general federal-question jurisdiction in the brief period before its repeal in 1801. See n. 12, supra. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 159 Souter, J., dissenting to contend that the plan of the convention was meant to leave the National Government without any way to render individ- uals capable of enforcing their federal rights directly against an intransigent State? C The considerations expressed so far, based on text, Chis- holm, caution in common-law reception, and sovereignty the- ory, have pointed both to the mistakes inherent in Hans and, even more strongly, to the error of today's holding. Al- though for reasons of stare decisis I would not today disturb the century-old precedent, I surely would not extend its error by placing the common-law immunity it mistakenly recognized beyond the power of Congress to abrogate. In doing just that, however, today's decision declaring state sovereign immunity itself immune from abrogation in federal-question cases is open to a further set of objections peculiar to itself. For today's decision stands condemned alike by the Framers' abhorrence of any notion that such common-law rules as might be received into the new legal systems would be beyond the legislative power to alter or repeal, and by its resonance with this Court's previous es- says in constitutionalizing common-law rules at the expense of legislative authority. 1 I have already pointed out how the views of the Framers reflected the caution of state constitutionalists and legisla- tors over reception of common-law rules, a caution that the Framers exalted to the point of vigorous resistance to any idea that English common-law rules might be imported wholesale through the new Constitution. The state politi- cians also took pains to guarantee that once a common-law rule had been received, it would always be subject to legisla- tive alteration, and again the state experience was reflected in the Framers' thought. Indeed, the Framers' very insist- 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 160 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting ence that no common-law doctrine would be received by vir- tue of ratification was focused in their fear that elements of the common law might thereby have been placed beyond the power of Congress to alter by legislation. The imperative of legislative control grew directly out of the Framers' revolutionary idea of popular sovereignty. Ac- cording to one historian, "[s]hared ideas about the sover- eignty of the people and the accountability of government to the people resulted at an early date in a new understanding of the role of legislation in the legal system. . . . Whereas a constitution had been seen in the colonial period as a body of vague and unidentifiable precedents and principles of com- mon law origin that imposed ambiguous restrictions on the power of men to make or change law, after independence it came to be seen as a written charter by which the people delegated powers to various institutions of government and imposed limitations on the exercise of those powers. . . . [T]he power to modify or even entirely to repeal the common law . . . now fell explicitly within the jurisdiction of the legis- lature." W. Nelson, Americanization of the Common Law 90 (1975).54 Virtually every state reception provision, be it constitu- tional or statutory, explicitly provided that the common law was subject to alteration by statute. See Wood 299­300; Jones 99. The New Jersey Constitution of 1776, for in- stance, provided that "the common law of England, as well as so much of the statute law, as have been heretofore prac- tised in this Colony, shall still remain in force, until they shall 54 Considering the example of Massachusetts, Professor Nelson observes that "the clearest illustration that legislation was coming to rest on the arbitrary power of a majoritarian legislature rather than on its conformity with past law and principle was the ease with which statutes altering common law rights were enacted and repealed in the 1780s in response to changing election results." Nelson, Americanization of the Common Law, at 91­92. 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 161 Souter, J., dissenting be altered by a future law . . . ." N. J. Const., Art. XXII (1776), in 6 W. Swindler, Sources and Documents of United States Constitutions 452 (1976).55 Just as the early state 55 See also Del. Const., Art. 25 (1776), in 2 Swindler, Sources and Docu- ments of United States Constitutions, at 203 ("The common law of Eng- land, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repug- nant to the rights and privileges contained in this constitution . . ."); Act of Feb. 25, 1784, in 1 First Laws of the State of Georgia 290 (1981) (declar- ing "the common laws of England" to be "in full force" "so far as they are not contrary to the constitution, laws and form of government now established in this State"); Mass. Const., Ch. VI, Art. VI (1780), in 5 Swin- dler, supra, at 108 ("All the laws which have heretofore been adopted, used, and approved in the province, colony, or State of Massachusetts Bay . . . shall still remain and be in full force, until altered or repealed by the legislature . . ."); Commonwealth v. Churchill, 2 Met. 118, 123­124 (Mass. 1840) (Shaw, C. J.) (construing "laws" in this provision to include common law); N. H. Const., Part II (1784), in 6 Swindler, supra, at 356 ("All the laws which have heretofore been adopted, used and approved, in the prov- ince, colony, or state of New-Hampshire . . . shall remain and be in full force, until altered and repealed by the legislature . . ."); N. C. Laws 1778, Ch. V, in 1 First Laws of the State of North Carolina 353 (1984) ("[A]ll . . . such Parts of the Common Law, as were heretofore in Force and Use within this Territory . . . as are not destructive of, repugnant to, or incon- sistent with the Freedom and Independence of this State, and the Form of Government therein established, and which have not been otherwise provided for, . . . not abrogated, repealed, expired, or become obsolete, are hereby declared to be in full Force within this State"); N. Y. Const., Art. XXXV (1777), in 7 Swindler, supra, at 177­178 ("[S]uch parts of the com- mon law of England . . . as together did form the law of the said colony [of New York] on [April 19, 1775], shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same"); R. I. Digest of 1766, quoted in 1 R. Powell & P. Rohan, Powell On Real Property ¶ 62, p. 212 (1995) (" `[I]n all actions, causes, matters and things whatsoever, where there is no particular law of this colony, or act of parliament . . . then and in such cases the laws of England shall be in force for the decision and determination of the same' "); 2 T. Cooper, Statutes at Large of South Carolina 413 (1837) (Act of Dec. 12, 1712, § V) (receiving "the Common Law of England, where the same is not . . . inconsistent with the particular 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 162 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting governments did not leave reception of the common law to implication, then, neither did they receive it as law immune to legislative alteration.56 constitutions, customs and laws of this Province"); S. C. Const., Art. VII (1790), in 8 Swindler, supra, at 480 ("All laws of force in this State at the passing of this constitution shall so continue, until altered or repealed by the legislature . . ."); W. Slade, Vermont State Papers 450 (1823) (Act of June 1782) (adopting "so much of the common law of England, as is not repugnant to the constitution or to any act of the legislature of this State"); Act of May 6, 1776, Ch. V, § VI, in First Laws of the State of Virginia 37 (1982) ("the common law of England . . . shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the Legislative power of this colony"). Connecticut, which did not enact any reception statute or constitutional provision, adopted the common law by judicial decision insofar as it was appropriate for local conditions. See 1 Powell & Rohan, supra, ¶ 52, at 140­141, and n. 77; Hall, 4 Vand. L. Rev., at 800; Fitch v. Brainerd, 2 Day 163 (Conn. 1805). Maryland's position appears to have been articulated in an oath prescribed by the Assembly in 1728 for justices of the Provincial Court. The oath required that the justices act "according to the Laws, Customs, and Directions of the Acts of Assembly of this Province; and where they are silent, according to the Laws, Statutes, and reasonable Customs of England, as have been used and practiced in this Province . . . ." M. Andrews, History of Maryland 227 (1929). Finally, although Pennsylvania's reception statute did not state that the common law could be altered by legislative enactment in so many words, it may be read as assuming the primacy of legislative enactments, see 9 Statutes at Large of Pennsylvania 29­30 (Mitchell & Flanders eds. 1903) (Act of Jan. 28, 1777) (declaring prior Acts of the general assembly to still be in force, as well as "the common law and such of the statute laws of England as have heretofore been in force in the said province . . ."), and the state assembly seems to have believed it had the power to depart from common law even prior to independence. See Warren, History of the American Bar, at 103; cf. Kirk v. Dean, 2 Binn. 341, 345 (Pa. 1810) (interpreting the state consti- tution as permitting departures from common-law rules where local cir- cumstances required it). 56 It bears emphasis that, in providing for statutory alteration of the common law, the new States were in no way departing from traditional understandings. It is true that the colonial charters had generally ren- dered colonial legislation void to the extent that it conflicted with English common law, but this principle was simply indicative of the Colonies' legal 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 163 Souter, J., dissenting I have already indicated that the Framers did not forget the state-law examples. When Antifederalists objected that the 1787 draft failed to make an explicit adoption of certain common-law protections of the individual, part of the Feder- alists' answer was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that "every State has made great inroads & with great propriety on this monarchical code." Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A (emphasis in original).57 Madison went on to insist that subjugation to the mother country and, in any event, seldom enforced in practice. See Stoebuck, 10 Wm. & Mary L. Rev., at 396­398, 419­420. The traditional conception of the common law as it developed in England had always been that it was freely alterable by statute. T. Plucknett, A Concise History of the Common Law 336­337 (5th ed. 1956); see also T. Plucknett, Statutes and Their Interpretation in the First Half of the Four- teenth Century 26­31 (1922) (finding no historical support for the claim that common law was "fundamental" or otherwise superior to statutes). Coke appears to have attempted at one time to establish a paramount common law, see, e. g., Dr. Bonham's Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C. P. 1610), but that attempt never took root in England. See Plucknett, Concise History of the Common Law, at 337; Jones 130; J. Gough, Fundamental Law in English Constitutional History 202 (1955) (observing that "[b]y the nineteenth century the overriding authority of statute-law had become the accepted principle in the courts"). And al- though Coke's dictum was to have a somewhat greater influence in America, that influence took the form of providing an early foundation for the idea that courts might invalidate legislation that they found inconsist- ent with a written constitution. See Jones 130­132; Gough, supra, at 206­ 207 (noting that Coke's view of fundamental law came to be transformed and subsumed in American practice by treatment of the written constitu- tion as fundamental law in the exercise of judicial review). As I demon- strate infra, the idea that legislation may be struck down based on princi- ples of common law or natural justice not located within the constitutional text has been squarely rejected in this country. See infra, at 165­168. 57 See also 3 Elliot's Debates 469­470 (Edmund Randolph, Virginia Con- vention) (arguing that constitutional incorporation of the common law would be "destructive to republican principles"). Indeed, one reason for 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 164 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting "[t]he Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations." Ibid.58 Indeed, Madison anticipated, and re- jected, the Court's approach today when he wrote that if "the common law be admitted as . . . of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power . . . [which] would be permanent and irremediable by the Legislature." Alien and Sedition Laws 380. "A discretion of this sort," he insisted, "has al- ways been lamented as incongruous and dangerous . . . ." Id., at 381.59 Madison's suspicion of the common law was that it included "a thousand heterogeneous & antirepublican doctrines." Letter from Madison to Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A. "[I]t will merit the most profound consideration," Madison was later to warn in his Report on the Virginia Resolutions Concerning the Alien and Sedition Laws, "how far an indefinite admission of the common law . . . might draw after it the various prerogatives making part of the unwritten law of Eng- land." Alien and Sedition Laws 380. Such an admission, Madison feared, would mean that "the whole code, with all its incongruities, barbarisms, and bloody maxims, would be inviolably saddled on the good people of the United States." Ibid. See also Amar, 96 Yale L. J., at 1490 ("[The] sole basis [of absolute government immunity from all suits] is the British idea that the sovereign government, as the source of all law, cannot itself be bound by any law absent its consent. . . . [L]iterally every article of the Federalist Constitution and every amendment in the Bill of Rights rests on the repudiation of the British view" (footnote omitted)). 58 See Wood 304, n. 75 ("To Jefferson in 1785 judicial discretion in the administration of justice was still the great evil and codification the great remedy"); G. White, The Marshall Court and Cultural Change, 1815­1835, p. 130 (1991) ("[A]n assumption of the constitutional design was that if Congress exercised [its enumerated] powers through legislation, its laws would supersede any competing ones"). 59 The Court attempts to sidestep this history by distinguishing sover- eign immunity as somehow different from other common-law principles. Ante, at 69. But see Chisholm v. Georgia, 2 Dall., at 435 (Iredell, J., dissenting) (arguing that the common law of England should control the case "so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controuls it"). The Court cannot find solace in any distinction between "substantive rules of law" and "ju- 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 165 Souter, J., dissenting 2 History confirms the wisdom of Madison's abhorrence of constitutionalizing common-law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison's counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that as we near the end of this risdiction," ante, at 69, however; it is abundantly clear that we have drawn both sorts of principles from the common law. See, e. g., Burnham v. Su- perior Court of Cal., County of Marin, 495 U. S. 604, 609 (1990) (plurality opinion of Scalia, J.) (noting that American notion of personal jurisdiction is a "common-law principle" that predates the Fourteenth Amendment). Nothing in the history, moreover, suggests that common-law rules were more immutable when they were jurisdictional rather than substantive in nature. Nor is it true that "the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment." Ante, at 69. The Seventh Amendment, after all, was adopted to respond to Antifederalist concerns regarding the right to jury trial. See n. 34, supra. Indeed, that Amendment vividly illustrates the distinction between provisions in- tended to adopt the common law (the Amendment specifically mentions the "common law" and states that the common-law right "shall be pre- served") and those provisions, like the Eleventh Amendment, that may have been inspired by a common-law right but include no language of adoption or specific reference. Finally, the Court's recourse to a vague "jurisprudence in all civilized nations," ante, at 69, rather than the com- mon law of England is unavailing. When the Constitution has received such general principles into our law, for example, in the Admiralty Clause's adoption of the general "law of nations" or "law of the sea," those princi- ples have always been subject to change by congressional enactment. See, e. g., Panama R. Co. v. Johnson, 264 U. S. 375, 386 (1924) (noting that although "the principles of the general maritime law, sometimes called the law of the sea," were "embodied" in Art. III, § 2, of the Constitution, they remained "subject to power in Congress to alter, qualify or supplement"); The Nereide, 9 Cranch 388, 423 (1815) (Marshall, C. J.) (stating that the Court would be "bound by the law of nations" until Congress passed a contrary enactment). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT 166 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting century the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common-law rules, for it was just this practice in the century's early decades that brought this Court to the nadir of competence that we iden- tify with Lochner v. New York, 198 U. S. 45 (1905).60 It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the common- law background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e. g., Adkins v. Childrens Hospital of D. C., 261 U. S. 525, 557 (1923) (finding abrogation of common-law freedom to con- tract for any wage an unconstitutional "compulsory exac- tion"); see generally Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873 (1987). And yet the superseding lesson that seemed clear after West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law's ordering of economic and social relationships, seems to have been lost on the Court. The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common-law or back- ground principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of 60 Cf. United States v. Lopez, 514 U. S. 549, 606 (1995) (Souter, J., dis- senting) ("The fulcrums of judicial review in [the Lochner cases] were the notions of liberty and property characteristic of laissez-faire economics, whereas the Commerce Clause cases turned on what was ostensibly a structural limit of federal power, but under each conception of judicial review the Court's character for the first third of the century showed itself in exacting judicial scrutiny of a legislature's choice of economic ends and of the legislative means selected to reach them"). 517us1$37M 02-23-99 16:36:05 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 167 Souter, J., dissenting which is to limit the exercise of governmental power. See, e. g., Adair v. United States, 208 U. S. 161 (1908). Some tex- tual argument, at least, could be made that the Court was doing no more than defining one provision that happened to be at odds with another. Today, however, the Court is not struggling to fulfill a responsibility to reconcile two arguably conflicting and Delphic constitutional provisions, nor is it struggling with any Delphic text at all. For even the Court concedes that the Constitution's grant to Congress of plenary power over relations with Indian tribes at the expense of any state claim to the contrary is unmistakably clear, and this case does not even arguably implicate a textual trump to the grant of federal-question jurisdiction. I know of only one other occasion on which the Court has spoken of extending its reach so far as to declare that the plain text of the Constitution is subordinate to judicially dis- coverable principles untethered to any written provision. Justice Chase once took such a position almost 200 years ago: "There are certain vital principles in our free Republi- can governments, which will determine and over-rule an apparent and flagrant abuse of legislative power. . . . An act of the Legislature (for I cannot call it a law) con- trary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." Calder v. Bull, 3 Dall. 386, 388 (1798) (em- phasis deleted). This position was no less in conflict with American consti- tutionalism in 1798 than it is today, being inconsistent with the Framers' view of the Constitution as fundamental law. Justice Iredell understood this, and dissented (again) in an opinion that still answers the position that "vital" or "back- ground" principles, without more, may be used to confine a clear constitutional provision: "[S]ome speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT 168 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting cannot think that, under such a government, any Court of Justice would possess a power to declare it so. . . . ". . . [I]t has been the policy of the American states, . . . and of the people of the United States . . . to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legisla- ture of a state, violates those constitutional provisions, it is unquestionably void. . . . If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the gen- eral scope of their constitutional power, the Court can- not pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice." Id., at 398­399 (emphasis deleted) (opinion dissenting in part). Later jurisprudence vindicated Justice Iredell's view, and the idea that "first principles" or concepts of "natural justice" might take precedence over the Constitution or other posi- tive law "all but disappeared in American discourse." J. Ely, Democracy and Distrust 52 (1980). It should take more than references to "background principle[s]," ante, at 72, and "implicit limitation[s]," Welch, 483 U. S., at 496 (Scalia, J., concurring in part and concurring in judgment), to revive the judicial power to overcome clear text unopposed to any other provision, when that clear text is in harmony with an almost equally clear intent on the part of the Framers and the constitutionalists of their generation. 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 169 Souter, J., dissenting IV The Court's holding that the States' Hans immunity may not be abrogated by Congress leads to the final question in this case, whether federal-question jurisdiction exists to order prospective relief enforcing IGRA against a state offi- cer, respondent Chiles, who is said to be authorized to take the action required by the federal law. Just as with the issue about authority to order the State as such, this ques- tion is entirely jurisdictional, and we need not consider here whether petitioner Seminole Tribe would have a meritorious argument for relief, or how much practical relief the re- quested order (to bargain in good faith) would actually pro- vide to the Tribe. Nor, of course, does the issue turn in any way on one's views about the scope of the Eleventh Amend- ment or Hans and its doctrine, for we ask whether the state officer is subject to jurisdiction only on the assumption that action directly against the State is barred. The answer to this question is an easy yes, the officer is subject to suit under the rule in Ex parte Young, 209 U. S. 123 (1908), and the case could, and should, readily be decided on this point alone. A In Ex parte Young, this Court held that a federal court has jurisdiction in a suit against a state officer to enjoin offi- cial actions violating federal law, even though the State itself may be immune. Under Young, "a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law." Quern v. Jordan, 440 U. S. 332, 337 (1979); see also Milliken v. Bradley, 433 U. S. 267, 289 (1977). The fact, without more, that such suits may have a signifi- cant impact on state governments does not count under Young. Milliken, for example, was a suit, under the author- ity of Young, brought against Michigan's Governor, Attorney General, Board of Education, Superintendent of Public In- 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT 170 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting struction, and Treasurer, which resulted in an order obligat- ing the State of Michigan to pay money from its treasury to fund an education plan. The relief requested (and obtained) by the plaintiffs effectively ran against the State: state mon- eys were to be removed from the state treasury, and they were to be spent to fund a remedial education program that it would be the State's obligation to implement. To take another example, Quern v. Jordan involved a court order requiring state officials to notify welfare beneficiaries of the availability of past benefits. Once again, the defendants were state officials, but it was the obligation of the State that was really at issue: the notices would be sent from the state welfare agency, to be returned to the state agency, and the state agency would pay for the notices and any ensuing awards of benefits. Indeed, in the years since Young was decided, the Court has recognized only one limitation on the scope of its doctrine: under Edelman v. Jordan, 415 U. S. 651 (1974), Young permits prospective relief only and may not be applied to authorize suits for retrospective monetary relief. It should be no cause for surprise that Young itself ap- peared when it did in the national law. It followed as a mat- ter of course after the Hans Court's broad recognition of immunity in federal-question cases, simply because "[r]eme- dies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law." Green v. Mansour, 474 U. S. 64, 68 (1985). Young provided, as it does today, a sensible way to reconcile the Court's expansive view of immunity expressed in Hans with the principles embodied in the Supremacy Clause and Article III. If Young may be seen as merely the natural consequence of Hans, it is equally unsurprising as an event in the longer history of sovereign immunity doctrine, for the rule we speak of under the name of Young is so far inherent in the jurisdictional limitation imposed by sovereign immunity as to have been recognized since the Middle Ages. For that 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 171 Souter, J., dissenting long it has been settled doctrine that suit against an officer of the Crown permitted relief against the government de- spite the Crown's immunity from suit in its own courts and the maxim that the King could do no wrong. See Jaffe, 77 Harv. L. Rev., at 3, 18­19; Ehrlich, No. XII: Proceedings Against the Crown (1216­1377), pp. 28­29, in 6 Oxford Stud- ies in Social and Legal History (P. Vinogradoff ed. 1921). An early example, from "time immemorial" of a claim "af- fecting the Crown [that] could be pursued in the regular courts [without consent since it] did not take the form of a suit against the Crown," Jaffe, supra, at 1, was recognized by the Statute of Westminster I, 1275, which established a writ of disseisin against a King's officers. When a King's officer disseised any person in the King's name, the wrong- fully deprived party could seek the draconian writ of attaint against the officer, by which he would recover his land. Jaffe, 77 Harv. L. Rev., at 9. Following this example for- ward, we may see how the writ of attaint was ultimately overtaken by the more moderate common-law writs of cer- tiorari and mandamus, "operat[ing] directly on the govern- ment; [and commanding] an officer not as an individual but as a functionary." Id., at 16. Thus the Court of King's Bench made it clear in 1701 that "wherever any new jurisdic- tion is erected, be it by private or public Act of Parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus." The Case of Cardiffe Bridge, 1 Salk. 146, 91 Eng. Rep. 135 (K. B.). B This history teaches that it was only a matter of course that once the National Constitution had provided the oppor- tunity for some recognition of state sovereign immunity, the necessity revealed through six centuries or more of history would show up in suits against state officers, just as Hans would later open the door to Ex parte Young itself. Once, then, the Eleventh Amendment was understood to forbid suit 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT 172 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting against a State eo nomine, the question arose "which suits against officers will be allowed and which will not be." Jaffe, 77 Harv. L. Rev., at 20. "It early became clear that a suit against an officer was not forbidden simply because it raised a question as to the legality of his action as an agent of government or because it required him, as in mandamus, to perform an official duty. These as we know had been well estab- lished before the eleventh amendment as not necessarily requiring consent. To be sure the renewed emphasis on immunity given by the eleventh amendment might conceivably have been taken so to extend the doctrine as to exclude suits against state officers even in cases where the English tradition would have allowed them. There was a running battle as to where the line would be drawn. The amendment was appealed to as an argu- ment for generous immunity. But there was the vastly powerful counterpressure for the enforcement of consti- tutional limits on the states. The upshot . . . was to confine the amendment's prohibition more or less to the occasion which gave it birth, to wit, the enforcement of contracts and to most (though not all) suits involving the title and disposition of a state's real and personal property." Id., at 20­21. The earliest cases, United States v. Peters, 5 Cranch 115 (1809), and Osborn v. Bank of United States, 9 Wheat. 738 (1824), embrace the English practice of permitting suits against officers, see Orth, Judicial Power of the United States, at 34­35, 40­41, 122, by focusing almost exclusively on whether the State had been named as a defendant. Gov- ernor of Georgia v. Madrazo, 1 Pet. 110, 123­124 (1828), shifted this analysis somewhat, finding that a Governor could not be sued because he was sued "not by his name, but by his title," which was thought the functional equivalent of suing the State itself. Madrazo did not, however, erase the 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 173 Souter, J., dissenting fundamental principle of Osborn that sovereign immunity would not bar a suit against a state officer. See, e. g., Davis v. Gray, 16 Wall. 203 (1873) (applying Osborn by enjoining the Governor of Texas to interfere with the possession of land granted by the State); United States v. Lee, 106 U. S. 196 (1882) (applying Osborn in context of federal sovereign immunity). This simple rule for recognizing sovereign immunity with- out gutting substantial rights was temporarily muddled in Louisiana v. Jumel, 107 U. S. 711 (1883), where the Court, although it "did not clearly say why," refused to hear a suit that would have required a state treasurer to levy taxes to pay interest on a bond. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 S. Ct. Rev. 149, 152. (One recalls the circumstances of Hans itself, see supra, at 117­121.) The Court, however, again applied Osborn in the Virginia Coupon Cases, 114 U. S. 269 (1885) (permitting in- junctions, restitution, and damages against state officers who seized property to collect taxes already paid with interest coupons the State had agreed to accept). In re Ayers, 123 U. S. 443, 502 (1887), sought to rationalize the competing strands of doctrine on the ground that an action may be "sus- tained only in those instances where the act complained of, considered apart from the official authority alleged as its jus- tification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrong- doer in his individual character." Ex parte Young restored the old simplicity by comple- menting In re Ayers with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor Hans immunity. The officer's action "is simply an illegal act upon the part of a state official in at- 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT 174 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting tempting by the use of the name of the State to en- force a legislative enactment which is void because un- constitutional. . . . The State has no power to impart to him any immunity from responsibility to the supreme author- ity of the United States." Ex parte Young, 209 U. S., at 159­160. The decision in Ex parte Young, and the historic doctrine it embodies, thus plays a foundational role in American con- stitutionalism, and while the doctrine is sometimes called a "fiction," the long history of its felt necessity shows it to be something much more estimable, as we may see by consider- ing the facts of the case. "Young was really and truly about to damage the interest of plaintiffs. Whether what he was about to do amounted to a legal injury depended on the authority of his employer, the state. If the state could con- stitutionally authorize the act then the loss suffered by plaintiffs was not a wrong for which the law provided a remedy. . . . If the state could not constitutionally authorize the act then Young was not acting by its authority." Orth, Judicial Power of the United States, at 133. The doctrine we call Ex parte Young is nothing short of "indispensable to the establishment of constitutional government and the rule of law." C. Wright, Law of Federal Courts 292 (4th ed. 1983). See also Chemerinsky, Federal Jurisdiction, at 393. A rule of such lineage, engendered by such necessity, should not be easily displaced, if indeed it is displaceable at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies. We have in fact never before inferred a congressional intent to eliminate this time-honored practice of enforcing federal law. That, of course, does not mean that the intent may never be inferred, and where, as here, the underlying right is one of statutory rather than constitutional dimension, I do not in theory re- ject the Court's assumption that Congress may bar enforce- ment by suit even against a state official. But because in practice, in the real world of congressional legislation, such 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 175 Souter, J., dissenting an intent would be exceedingly odd, it would be equally odd for this Court to recognize an intent to block the customary application of Ex parte Young without applying the rule rec- ognized in our previous cases, which have insisted on a clear statement before assuming a congressional purpose to "af- fec[t] the federal balance," United States v. Bass, 404 U. S. 336, 349 (1971). See also Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989) ("[I]f Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute' ") (quoting Atascadero State Hospital v. Scanlon, 473 U. S., at 242); Gregory v. Ashcroft, 501 U. S. 452, 460­461 (1991). Our ha- bitual caution makes sense for just the reason we mentioned in Dellmuth v. Muth, 491 U. S., at 230­231: it is "difficult to believe that . . . Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest." C There is no question that by its own terms Young's indis- pensable rule authorizes the exercise of federal jurisdiction over respondent Chiles. Since this case does not, of course, involve retrospective relief, Edelman's limit is irrelevant, and there is no other jurisdictional limitation. Obviously, for jurisdictional purposes it makes no difference in principle whether the injunction orders an official not to act, as in Young, or requires the official to take some positive step, as in Milliken or Quern. Nothing, then, in this case renders Young unsuitable as a jurisdictional basis for determining on the merits whether petitioner is entitled to an order against a state official under general equitable doctrine. The Court does not say otherwise, and yet it refuses to apply Young. There is no adequate reason for its refusal. No clear statement of intent to displace the doctrine of Ex parte Young occurs in IGRA, and the Court is instead 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT 176 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting constrained to rest its effort to skirt Young on a series of suggestions thought to be apparent in Congress's provision of "intricate procedures" for enforcing a State's obligation under the Act. The procedures are said to implicate a rule against judicial creativity in devising supplementary proce- dures; it is said that applying Young would nullify the statu- tory procedures; and finally the statutory provisions are said simply to reveal a congressional intent to preclude the appli- cation of Young. 1 The Court cites Schweiker v. Chilicky, 487 U. S. 412, 423 (1988), in support of refraining from what it seems to think would be judicial creativity in recognizing the applicability of Young. The Court quotes from Chilicky for the general proposition that when Congress has provided what it consid- ers adequate remedial mechanisms for violations of federal law, this Court should not "creat[e]" additional remedies. Ante, at 74. The Court reasons that Congress's provision in IGRA of "intricate procedures" shows that it considers its remedial provisions to be adequate, with the implication that courts as a matter of prudence should provide no "addi- tional" remedy under Ex parte Young. Ante, at 73­76. Chilicky's remoteness from the point of this case is, how- ever, apparent from its facts. In Chilicky, Congress had ad- dressed the problem of erroneous denials of certain govern- ment benefits by creating a scheme of appeals and awards that would make a successful claimant whole for all benefits wrongly denied. The question was whether this Court should create a further remedy on the model of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), for such harms as emotional distress, when the erroneous denial of benefits had involved a violation of procedural due process. The issue, then, was whether to create a supplemental rem- edy, backward looking on the Bivens model, running against a federal official in his personal capacity, and requiring an 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 177 Souter, J., dissenting affirmative justification (as Bivens does). See Bivens, supra; FDIC v. Meyer, 510 U. S. 471, 484­486 (1994). The Bivens issue in Chilicky (and in Meyer) is different from the Young issue here in every significant respect. Young is not an example of a novel rule that a proponent has a burden to justify affirmatively on policy grounds in every context in which it might arguably be recognized; it is a gen- eral principle of federal equity jurisdiction that has been rec- ognized throughout our history and for centuries before our own history began. Young does not provide retrospective monetary relief but allows prospective enforcement of fed- eral law that is entitled to prevail under the Supremacy Clause. It requires not money payments from a govern- ment employee's personal pocket, but lawful conduct by a public employee acting in his official capacity. Young would not function here to provide a merely supplementary regime of compensation to deter illegal action, but the sole jurisdic- tional basis for an Article III court's enforcement of a clear federal statutory obligation, without which a congressional act would be rendered a nullity in a federal court. One can- not intelligibly generalize from Chilicky's standards for im- posing the burden to justify a supplementary scheme of tort law to the displacement of Young's traditional and indispen- sable jurisdictional basis for ensuring official compliance with federal law when a State itself is immune from suit. 2 Next, the Court suggests that it may be justified in dis- placing Young because Young would allow litigants to ignore the "intricate procedures" of IGRA in favor of a menu of streamlined equity rules from which any litigant could order as he saw fit. But there is no basis in law for this sugges- tion, and the strongest authority to reject it. Young did not establish a new cause of action and it does not impose any particular procedural regime in the suits it permits. It stands, instead, for a jurisdictional rule by which paramount 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT 178 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting federal law may be enforced in a federal court by substitut- ing a nonimmune party (the state officer) for an immune one (the State itself). Young does no more and furnishes no authority for the Court's assumption that it somehow pre-empts procedural rules devised by Congress for particu- lar kinds of cases that may depend on Young for federal jurisdiction.61 If, indeed, the Court were correct in assuming that Con- gress may not regulate the procedure of a suit jurisdiction- ally dependent on Young, the consequences would be revolu- tionary, for example, in habeas law. It is well established that when a habeas corpus petitioner sues a state official al- leging detention in violation of federal law and seeking the prospective remedy of release from custody, it is the doctrine identified in Ex parte Young that allows the petitioner to evade the jurisdictional bar of the Eleventh Amendment (or, more properly, the Hans doctrine). See Young, 209 U. S., at 167­168; Larson v. Domestic and Foreign Commerce Corp., 337 U. S. 682, 689­690 (1949).62 And yet Congress has im- 61 The Court accuses me of misrepresenting its argument. Ante, at 75, n. 17. The Court's claim, as I read it, is not that Congress cannot author- ize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme, but rather that remedial limitations on the underlying cause of action do not apply to a claim based on Ex parte Young. Otherwise, the existence of those remedial limitations would pro- vide no reason for the Court to assume that Congress did not intend to permit an action under Young; rather, the limitations would apply regard- less of whether the suit was brought against the State or a state officer. 62 See also Brennan v. Stewart, 834 F. 2d 1248, 1252, n. 6 (CA5 1988) ("[A]lthough not usually conceptualized as Ex parte Young cases, most of the huge number of habeas claims in the federal courts under 28 U. S. C. § 2254 are effectively suits against the states. These suits pass muster under the Eleventh Amendment because the habeas theory of a civil suit against the bad jailer fits perfectly with the Ex parte Young fiction"); United States ex rel. Elliott v. Hendricks, 213 F. 2d 922, 926­928 (CA3) (exercising jurisdiction over a habeas suit despite an Eleventh Amend- ment challenge on the theory that the suit was against a state officer), cert. denied, 348 U. S. 851 (1954). 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 179 Souter, J., dissenting posed a number of restrictions upon the habeas remedy, see, e. g., 28 U. S. C. § 2254(b) (requiring exhaustion of state reme- dies prior to bringing a federal habeas petition), and this Court has articulated several more, see, e. g., McCleskey v. Zant, 499 U. S. 467 (1991) (abuse of the writ); Teague v. Lane, 489 U. S. 288 (1989) (limiting applicability of "new rules" on habeas); Brecht v. Abrahamson, 507 U. S. 619 (1993) (apply- ing a more deferential harmless-error standard on habeas review). By suggesting that Ex parte Young provides a free-standing remedy not subject to the restrictions other- wise imposed on federal remedial schemes (such as habeas corpus), the Court suggests that a state prisoner may cir- cumvent these restrictions by ostensibly bringing his suit under Young rather than 28 U. S. C. § 2254. The Court's view implies similar consequences under any number of similarly structured federal statutory schemes.63 This, of course, cannot be the law, and the plausible ra- tionale for rejecting the Court's contrary assumption is that Congress has just as much authority to regulate suits when jurisdiction depends on Young as it has to regulate when Young is out of the jurisdictional picture. If Young does not preclude Congress from requiring state exhaustion in habeas cases (and it clearly does not), then Young does not bar the application of IGRA's procedures when effective relief is sought by suing a state officer. 3 The Court's third strand of reasoning for displacing Ex parte Young is a supposed inference that Congress so in- 63 Many other federal statutes impose obligations on state officials, the enforcement of which is subject to "intricate provisions" also statutorily provided. See, e. g., Federal Water Pollution Control Act, 33 U. S. C. § 1365(a) (citizen-suit provision to enforce States' obligations under federal environmental law); Emergency Planning and Community Right-To-Know Act, 42 U. S. C. § 11001 (privately enforceable requirement that States form commissions, appointed by the Governor, to generate plans for addressing hazardous material emergencies). 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT 180 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting tended. Since the Court rests this inference in large part on its erroneous assumption that the statute's procedural limitations would not be applied in a suit against an officer for which Young provided the jurisdictional basis, the error of that assumption is enough to show the unsoundness of any inference that Congress meant to exclude Young's applica- tion. But there are further reasons pointing to the utter implausibility of the Court's reading of the congressional mind. IGRA's jurisdictional provision reads as though it had been drafted with the specific intent to apply to officer liabil- ity under Young. It provides that "[t]he United States dis- trict courts shall have jurisdiction over . . . any cause of action . . . arising from the failure of a State to enter into negotiations . . . or to conduct such negotiations in good faith." 25 U. S. C. § 2710(d)(7)(A)(i) (emphasis added). This language does not limit the possible defendants to States and is quite literally consistent with the possibility that a tribe could sue an appropriate state official for a State's failure to negotiate.64 The door is so obviously just as open to juris- diction over an officer under Young as to jurisdiction over a State directly that it is difficult to see why the statute would have been drafted as it was unless it was done in anticipation that Young might well be the jurisdictional basis for enforce- ment action. But even if the jurisdictional provision had spoken nar- rowly of an action against the State itself (as it subsequently speaks in terms of the State's obligation), that would be no indication that Congress had rejected the application of Young. An order requiring a "State" to comply with federal 64 In order for any person (whether individual or entity) to be a proper defendant under § 2710(d)(7) (and in order for standing to exist, since one of its requirements is redressability), that person, of course, would need to have some connection to the State's negotiations. See Young, 209 U. S., at 157; Franklin v. Massachusetts, 505 U. S. 788, 803 (1992). The obvious candidates are the responsible state officials. 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 181 Souter, J., dissenting law can, of course, take the form of an order directed to the State in its sovereign capacity. But as Ex parte Young and innumerable other cases show, there is nothing incongruous about a duty imposed on a "State" that Congress intended to be effectuated by an order directed to an appropriate state official. The habeas corpus statute, again, comes to mind. It has long required "the State," by "order directed to an appropriate State official," to produce the state-court record where an indigent habeas petitioner argues that a state court's factual findings are not fairly supported in the record. See 28 U. S. C. § 2254(e) ("the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official"). If, then, IGRA's references to "a State's" duty were not enforce- able by order to a state official, it would have to be for some other reason than the placement of the statutory duty on "the State." It may be that even the Court agrees, for it falls back to the position, see ante, at 75, n. 17, that only a State, not a state officer, can enter into a compact. This is true but wholly beside the point. The issue is whether negotiation should take place as required by IGRA and an officer (in- deed, only an officer) can negotiate. In fact, the only case cited by the Court, State ex rel. Stephan v. Finney, 251 Kan. 559, 836 P. 2d 1169 (1992), makes that distinction abun- dantly clear. Finally, one must judge the Court's purported inference by stepping back to ask why Congress could possibly have intended to jeopardize the enforcement of the statute by ex- cluding application of Young's traditional jurisdictional rule, when that rule would make the difference between success or failure in the federal court if state sovereign immunity was recognized. Why would Congress have wanted to go for broke on the issue of state immunity in the event the State pleaded immunity as a jurisdictional bar? Why would Congress not have wanted IGRA to be enforced by means of 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT 182 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting a traditional doctrine giving federal courts jurisdiction over state officers, in an effort to harmonize state sovereign im- munity with federal law that is paramount under the Su- premacy Clause? There are no plausible answers to these questions. D There is, finally, a response to the Court's rejection of Young that ought to go without saying. Our longstanding practice is to read ambiguous statutes to avoid constitutional infirmity, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) (" `every reasonable construction must be resorted to, in order to save a statute from unconstitutionality' ") (quoting Hooper v. California, 155 U. S. 648, 657 (1895)). This prac- tice alone (without any need for a clear statement to displace Young) would be enough to require Young's application. So, too, would the application of another rule, requiring courts to choose any reasonable construction of a statute that would eliminate the need to confront a contested constitutional issue (in this case, the place of state sovereign immunity in federal-question cases and the status of Union Gas). NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 500­501 (1979). Construing the statute to harmonize with Young, as it readily does, would have saved an Act of Congress and ren- dered a discussion on constitutional grounds wholly unneces- sary. This case should be decided on this basis alone. V Absent the application of Ex parte Young, I would, of course, follow Union Gas in recognizing congressional power under Article I to abrogate Hans immunity. Since the rea- sons for this position, as explained in Parts II­III, supra, tend to unsettle Hans as well as support Union Gas, I should add a word about my reasons for continuing to accept Hans's holding as a matter of stare decisis. 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 183 Souter, J., dissenting The Hans doctrine was erroneous, but it has not pre- viously proven to be unworkable or to conflict with later doc- trine or to suffer from the effects of facts developed since its decision (apart from those indicating its original errors). I would therefore treat Hans as it has always been treated in fact until today, as a doctrine of federal common law. For, as so understood, it has formed one of the strands of the federal relationship for over a century now, and the stability of that relationship is itself a value that stare decisis aims to respect. In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment,65 they would not be modified without deliberately expressed intent. See Gregory v. Ash- croft, 501 U. S., at 460­461. The plain-statement rule, which "assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judi- cial decision," United States v. Bass, 404 U. S., at 349, is par- ticularly appropriate in light of our primary reliance on "[t]he effectiveness of the federal political process in preserving the States' interests," Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 552 (1985).66 Hence, we 65 The scope of the Tenth Amendment's limitations of congressional power remains a subject of debate. New York v. United States, 505 U. S. 144 (1992), holds that principles of federalism are "violated by a formal command from the National Government directing the State to enact a certain policy." United States v. Lopez, 514 U. S., at 583 (Kennedy, J., concurring). Some suggest that the prohibition extends further than bar- ring the Federal Government from directing the creation of state law. The views I express today should not be understood to take a position on that disputed question. 66 See also The Federalist No. 46, at 319 (J. Madison) (explaining that the Federal Government "will partake sufficiently of the spirit [of the States], to be disinclined to invade the rights of the individual States, or the pre- 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT 184 SEMINOLE TRIBE OF FLA. v. FLORIDA Souter, J., dissenting have required such a plain statement when Congress pre- empts the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947), imposes a condition on the grant of federal moneys, South Dakota v. Dole, 483 U. S. 203, 207 (1987), or seeks to regulate a State's ability to determine the qualifications of its own officials, Gregory, supra, at 464. When judging legislation passed under unmistakable Arti- cle I powers, no further restriction could be required. Nor does the Court explain why more could be demanded. In the past, we have assumed that a plain-statement require- ment is sufficient to protect the States from undue federal encroachments upon their traditional immunity from suit. See, e. g., Welch v. Texas Dept. of Highways & Public Transp., 483 U. S., at 475; Atascadero State Hospital v. Scan- lon, 473 U. S., at 239­240. It is hard to contend that this rule has set the bar too low, for (except in Union Gas) we have never found the requirement to be met outside the con- text of laws passed under § 5 of the Fourteenth Amendment. The exception I would recognize today proves the rule, moreover, because the federal abrogation of state immunity comes as part of a regulatory scheme which is itself designed to invest the States with regulatory powers that Congress need not extend to them. This fact suggests to me that the political safeguards of federalism are working, that a plain- statement rule is an adequate check on congressional over- reaching, and that today's abandonment of that approach is wholly unwarranted. There is an even more fundamental "clear statement" prin- ciple, however, that the Court abandons today. John Mar- shall recognized it over a century and a half ago in the very context of state sovereign immunity in federal-question cases: rogatives of their governments"); Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954). 517us1$37M 02-23-99 16:36:06 PAGES OPINPGT Cite as: 517 U. S. 44 (1996) 185 Souter, J., dissenting "The jurisdiction of the court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed." Cohens v. Virginia, 6 Wheat., at 379­380. Because neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article III, I would reverse the judgment of the Court of Appeals. 517us1$38z 02-23-99 16:40:25 PAGES OPINPGT 186 OCTOBER TERM, 1995 Syllabus MORSE et al. v. REPUBLICAN PARTY OF VIRGINIA et al. appeal from the united states district court for the western district of virginia No. 94­203. Argued October 2, 1995-Decided March 27, 1996 Appellee Republican Party of Virginia (Party) invited all registered Vir- ginia voters willing to declare their support for the Party's nominees at the 1994 general election to become delegates to a convention to nomi- nate the Party's candidate for United States Senator upon payment of a registration fee. Appellants Bartholomew and Enderson desired, and were qualified, to become delegates, but were rejected because they refused to pay the fee; appellant Morse paid the fee with funds advanced by supporters of the eventual nominee. Alleging, inter alia, that the imposition of the fee violated §§ 5 and 10 of the Voting Rights Act of 1965, appellants filed a complaint seeking an injunction preventing the Party from imposing the fee and ordering it to return the fee paid by Morse. The three-judge District Court convened to consider the § 5 and § 10 claims granted the Party's motion to dismiss, concluding that the "general rule" that § 5 covers political parties to the extent that they are empowered to conduct primary elections is inapplicable to the selection of nominating convention delegates under a regulation promul- gated by the Attorney General of the United States and under this Court's summary decision in Williams v. Democratic Party of Georgia, 409 U. S. 809; and that only the Attorney General has authority to en- force § 10. Held: The judgment is reversed, and the case is remanded. 853 F. Supp. 212, reversed and remanded. Justice Stevens, joined by Justice Ginsburg, concluded: 1. The Party's decision to exact the registration fee was subject to § 5, which, among other things, prohibits Virginia and other cov- ered jurisdictions from enacting or enforcing "any voting qualification or prerequisite . . . different from that in force . . . on" a specified date unless the change has been precleared by the Attorney General. Pp. 193­229. (a) The District Court erred in its application of the Attorney Gen- eral's regulation, which unambiguously requires § 5 preclearance when a political party makes a change affecting voting if, inter alia, the party is "acting under authority explicitly or implicitly granted by a covered jurisdiction." Because Virginia law provides that the nominees of the 517us1$38z 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 187 Syllabus two major political parties shall automatically appear on the general election ballot, without the need to declare their candidacy or to demon- strate their support with a nominating petition, and authorizes the two parties to determine for themselves how they will select their nominees, whether by primary, nominating convention, or some other method, the Party "act[ed] under authority" of Virginia when it picked its candidate at the convention and certified the nominee for automatic placement on the general election ballot. Cf. Smith v. Allwright, 321 U. S. 649, 653, n. 6, 660, 663. Because the conclusion that the Party's activities fall directly within the regulation's scope is not contradicted, but is in fact supported, by this Court's narrow holding in Williams, supra, the Dis- trict Court also erred when it based its dismissal of appellants' com- plaint on that case. Pp. 194­203. (b) The Act's language and structure compel the conclusion that § 5 of its own force covers changes such as the Party's filing fee when the electoral practice at issue is a nominating convention. This Court has consistently construed the Act to require preclearance of any change bearing on the "effectiveness" of a vote cast in a primary, special, or general election, including changes in the composition of the electorate that votes for a particular office. See, e. g., Allen v. State Bd. of Elec- tions, 393 U. S. 544, 570. By limiting the opportunity for voters to par- ticipate in the convention, the Party's filing fee undercuts their influence on the field of candidates whose names will appear on the ballot, and thus weakens the "effectiveness" of their votes cast in the general elec- tion itself. That § 5 covers nonprimary nomination methods is also sup- ported by Whitley v. Williams, decided with Allen, supra; by the text and legislative history of § 14, which defines the terms "vote" or "vot- ing" to include "all action necessary to make a vote effective in any . . . election," including the selection of persons for "party office"; and by the text of § 2, which bans any racially discriminatory voting qualification or prerequisite if "the political processes leading to nomination or elec- tion . . . are not equally open to . . . [protected group] members." (Em- phasis added.) Pp. 203­210. (c) Consideration of the historical background which informed the 89th Congress when it passed the Act-particularly Terry v. Adams, 345 U. S. 461, and the other "White Primary Cases," in which the Court applied the Fifteenth Amendment to strike down a succession of meas- ures by Texas authorities to exclude minority voters from their nomina- tion processes-confirms the conclusion that § 5 applies here. None of the reasons offered to support appellees' contention that the White Pri- mary Cases have no bearing on the Act's proper interpretation-(1) that the Party's convention did not operate in a racially discriminatory man- ner; (2) that, although the Act was meant to enforce the Fifteenth 517us1$38z 02-23-99 16:40:25 PAGES OPINPGT 188 MORSE v. REPUBLICAN PARTY OF VA. Syllabus Amendment, the 89th Congress did not intend to legislate to that Amendment's "outer limit"; and (3) that present-day Virginia is not a one-party Commonwealth, unlike post-Reconstruction Texas-is per- suasive. Pp. 210­219. (d) None of the dissents' arguments for rejecting the foregoing con- struction of § 5-that a political party is not a "State or political subdivi- sion" within § 5's literal meaning because it is not a governmental unit; that the Court should not defer to the Attorney General's regulation when construing § 5's coverage; that a major political party is not a "state actor" under the Court's decisions unless its nominees are virtu- ally certain to win the general election; and that the construction amounts to adoption of a "blanket rule" that all political parties must preclear all of their internal procedures-is convincing. Pp. 220­226. (e) Appellees' practical objections to the foregoing construction of § 5-(1) that it will create an administrative nightmare for political par- ties and the Justice Department, and (2) that it threatens to abridge First Amendment associational rights-are rejected. Pp. 227­229. 2. Section 10 of the Act-which does not expressly mention private actions when it authorizes the Attorney General to file suit against ra- cially motivated poll taxes-does not preclude appellants from challeng- ing the Party's registration fee as a prohibited poll tax. Evaluation of congressional action must take into account its contemporary legal con- text. See, e. g., Cannon v. University of Chicago, 441 U. S. 677, 698­ 699. Because the Act was passed against a "backdrop" of decisions in which implied causes of action were regularly found, see id., at 698, and nn. 22­23, private parties may sue to enforce § 10, just as they may enforce § 5, see Allen, supra, at 556, 557, n. 23, or § 2, see, e. g., Chisom v. Roemer, 501 U. S. 380. Appellees' argument to the contrary was re- jected in Allen, supra, at 556, n. 20, and is also refuted by §§ 3 and 14(e) of the Act, both of which recognize the existence of a private § 10 right of action. Appellees' argument that a delegate registration fee is not a poll tax addresses the merits and should be considered by the District Court in the first instance. Pp. 230­235. Justice Breyer, joined by Justice O'Connor and Justice Sou- ter, concluded: 1. In light of the legislative history demonstrating that, in 1965, Con- gress was well aware of the White Primary Cases, the failure of case- by-case enforcement of the Fifteenth Amendment, and Mississippi's then-recent efforts to use an "all-white" convention process to help nom- inate a Democratic candidate for President, and that the Act's "party office" provision was adopted to cover the latter type of situation, the Act cannot be interpreted to contain a loophole excluding all political party activity, but must be read to apply to certain convention-based 517us1$38z 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 189 Syllabus practices and procedures with respect to voting. That is as far as the Court need go to answer the statutory question presented by this case. Indeed, it is as far as the Court should go, given the difficult First Amendment questions about the extent to which the Federal Govern- ment, through preclearance procedures, can regulate the workings of a political party convention, and about the limits imposed by the state- action doctrine. Such questions are properly left for a case that squarely presents them. The fee imposed here, however, is within the scope of § 5, and well outside the area of greatest associational con- cern. Pp. 235­240. 2. Congress intended to establish a private right of action to enforce § 10, no less than it did to enforce §§ 2 and 5. See Allen v. State Bd. of Elections, 393 U. S. 544, 556­557. Justice Breyer expressed no view as to the merits of the underlying § 10 claim. P. 240. Stevens, J., announced the judgment of the Court and delivered an opinion, in which Ginsburg, J., joined. Breyer, J., filed an opinion con- curring in the judgment, in which O'Connor and Souter, JJ., joined, post, p. 235. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 241. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 247. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, and in which Kennedy, J., joined as to Part II, post, p. 253. Pamela S. Karlan argued the cause for appellants. With her on the briefs were George A. Rutherglen, Eben Moglen, and Daniel R. Ortiz. Deputy Solicitor General Bender argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attor- ney General Patrick, Richard H. Seamon, and Steven H. Rosenbaum. E. Duncan Getchell, Jr., argued the cause for appellees. With him on the brief were J. Robert Brame III, Patrick M. McSweeney, Donald W. Lemons, and Robert L. Hodges.* *Briefs of amici curiae urging reversal were filed for the Lawyers' Committee for Civil Rights under Law et al. by Donald B. Verrilli, Jr., Michael A. Cooper, Herbert J. Hansell, Norman Redlich, Barbara R. Arn- wine, Thomas J. Henderson, Brenda Wright, and Laughlin McDonald; 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 190 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. Justice Stevens announced the judgment of the Court and delivered an opinion, in which Justice Ginsburg joins. In 1994, all registered voters in Virginia who were willing to declare their intent to support the Republican Party's nominees for public office at the next election could partici- pate in the nomination of the Party's candidate for the office of United States Senator if they paid either a $35 or $45 registration fee. Appellants contend that the imposition of that fee as a condition precedent to participation in the can- didate selection process was a poll tax prohibited by the Vot- ing Rights Act of 1965. The questions we must decide are whether § 5 of the Act required preclearance of the Party's decision to exact the fee and whether appellants were per- mitted to challenge it as a poll tax prohibited by § 10. I On December 16, 1993, the Republican Party of Virginia (Party) issued a call for a state convention to be held on June 3, 1994, to nominate the Republican candidate for United States Senator. The call invited all registered voters in Virginia to participate in local mass meetings, canvasses, or conventions to be conducted by officials of the Party. Any voter could be certified as a delegate to the state convention by a local political committee upon payment of a registration fee of $35 or $45 depending on the date of certification. Over 14,000 voters paid the fee and took part in the convention. In response to the call, appellants Bartholomew, Enderson, and Morse sought to become delegates to the convention. and for the National Association for the Advancement of Colored People by Ronald D. Maines, Dennis Courtland Hayes, and Willie Abrams. James S. Gilmore III, Attorney General, David E. Anderson, Chief Deputy Attorney General, John Paul Woodley, Jr., and William H. Hurd, Deputy Attorneys General, and Maureen Riley Matsen, Assistant Attor- ney General, filed a brief for the Commonwealth of Virginia as amicus curiae urging affirmance. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 191 Opinion of Stevens, J. As a registered voter in Virginia willing to declare his or her intent to support the Party's nominee, each was eligible to participate upon payment of the registration fee. Bar- tholomew and Enderson refused to pay the fee and did not become delegates; Morse paid the fee with funds advanced by supporters of the eventual nominee. On May 2, 1994, appellants filed a complaint in the United States District Court for the Western District of Virginia alleging that the imposition of the registration fee violated §§ 5 and 10 of the Voting Rights Act, 79 Stat. 439, 442, as amended, 42 U. S. C. §§ 1973c 1 and 1973h, as well as the Equal Protection Clause of the Fourteenth Amendment 2 and 1 As originally enacted, § 5 provided: "Sec. 5. Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no per- son shall be denied the right to vote for failure to comply with such quali- fication, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, stand- ard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney Gen- eral and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this sec- tion shall be heard and determined by a court of three judges in accord- ance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court." 79 Stat. 437. 2 "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U. S. Const., Amdt. 14. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 192 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. the Twenty-fourth Amendment 3 to the Constitution. They sought an injunction preventing the Party from imposing the fee and ordering it to return the fee paid by Morse. As §§ 5 and 10 require, a three-judge District Court was convened to consider the statutory claims. See Morse v. Oliver North for U. S. Senate Comm., Inc., 853 F. Supp. 212 (WD Va. 1994). That court remanded the two constitutional claims to a single-judge District Court,4 and, after expedited briefing and argument, granted the Party's motion to dismiss the § 5 and § 10 claims. After noting "a general rule" that political parties are sub- ject to § 5 to the extent that they are empowered to conduct primary elections, the court gave two reasons for concluding that the rule did not apply to the selection of delegates to a state nominating convention. First, it read a regulation promulgated by the Attorney General as disavowing § 5 coverage of political party activities other than the conduct of primary elections. Second, it relied on our summary af- firmance of the District Court's holding in Williams v. Dem- ocratic Party of Georgia, Civ. Action No. 16286 (ND Ga., Apr. 6, 1972), that § 5 does not cover a party's decision to change its method of selecting delegates to a national con- vention. See 409 U. S. 809 (1972). Its dismissal of the § 10 claim rested on its view that only the Attorney General has authority to enforce that section of the Act. 853 F. Supp., at 215­217. 3 "Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. "Section 2. The Congress shall have power to enforce this article by appropriate legislation." U. S. Const., Amdt. 24. 4 A separate statutory claim alleging that the loan to appellant Morse violated § 11(c) of the Act, 42 U. S. C. § 1973i(c), was also remanded to the single-judge District Court. Neither that claim nor either of the constitu- tional claims is before us. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 193 Opinion of Stevens, J. We noted probable jurisdiction, 513 U. S. 1125 (1995), and now reverse. II In the Voting Rights Act of 1965, Congress enacted a com- plex scheme of remedies for racial discrimination in voting that were to be applied in areas where such discrimination had been most flagrant. Section 4 of the Act sets forth the formula for identifying the jurisdictions in which such dis- crimination had occurred, see South Carolina v. Katzenbach, 383 U. S. 301, 317­318 (1966), and § 5 prescribes the most stringent of those remedies. It prohibits the enactment or enforcement by any covered jurisdiction of voting qualifica- tions or procedures that differ from those in effect on No- vember 1, 1964, or two later dates, unless they have been precleared by the Attorney General or approved by the United States District Court for the District of Columbia. See Allen v. State Bd. of Elections, 393 U. S. 544, 548­550 (1969).5 Virginia is one of the seven States to which the § 4 coverage formula was found applicable on August 7, 1965.6 The entire Commonwealth has been subject to the preclear- ance obligation of § 5 ever since. It is undisputed that the Party's practice of charging a registration fee as a prerequisite to participation in the proc- ess of selecting a candidate for United States Senator was 5 In order to obtain preclearance, the covered jurisdiction must demon- strate that its new procedure "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or [membership in a language minority group]," 42 U. S. C. § 1973c. The fact that such a showing could have been made, but was not, will not excuse the failure to follow the statutory preclearance procedure. "Fail- ure to obtain either judicial or administrative preclearance `renders the change unenforceable.' " Clark v. Roemer, 500 U. S. 646, 652 (1991) (quot- ing Hathorn v. Lovorn, 457 U. S. 255, 269 (1982)). 6 30 Fed. Reg. 9897 (1965). The others were Alabama, Alaska, Georgia, Louisiana, Mississippi, and South Carolina. Ibid. In addition, portions of North Carolina, Arizona, Hawaii, and Idaho were designated then or shortly thereafter. See 30 Fed. Reg. 14505 (1965). 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 194 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. not in effect on November 1, 1964. It is also undisputed that if the candidate had been selected in a primary election, the Party could not have enforced a voting qualification or proce- dure different from those in effect on November 1, 1964, without first preclearing it under § 5. Finally, we under- stand the Party to agree that if the registration fee had been mandated by state law, or by a state election official, pre- clearance would have been required. What is in dispute is whether the coverage of § 5 encom- passes the Party's voting qualifications and procedures when its nominees are chosen at a convention. In answering that question, we first note that the District Court's decision is not supported either by the Attorney General's regulation or by the narrow holding in the Williams case. We then ex- plain why coverage is mandated by our consistent construc- tion of the text and history of the Act. Finally, we discuss the § 10 private cause of action issue. III The Party does not question the validity of the Attorney General's regulation. That regulation unambiguously pro- vides that when a political party makes a change affecting voting, § 5 requires preclearance if two conditions are satis- fied: The change must relate to "a public electoral function of the party" and the party must be "acting under authority explicitly or implicitly granted by a covered jurisdiction." 7 7 The regulation, which was adopted in 1981, provides: "Political parties. Certain activities of political parties are subject to the preclearance requirement of section 5. A change affecting voting effected by a political party is subject to the preclearance requirement: (a) If the change relates to a public electoral function of the party and (b) if the party is acting under authority explicitly or implicitly granted by a covered jurisdiction or political subunit subject to the preclearance re- quirement of section 5. For example, changes with respect to the recruit- ment of party members, the conduct of political campaigns, and the drafting of party platforms are not subject to the preclearance require- 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 195 Opinion of Stevens, J. The Party does not deny that the delegate fee is a change that relates to a public electoral function of the Party. It argues, instead, that the regulation did not apply when it selected its nominee for United States Senator at a conven- tion because it was not "acting under authority" granted by Virginia. We disagree. The District Court erred in its application of the regulation, because the Party exercised delegated state power when it certified its nominee for auto- matic placement on Virginia's general election ballot. Virginia law creates two separate tracks for access to the ballot, depending on the affiliation of the candidate. An in- dependent candidate for a statewide office must comply with several requirements. The candidate must file a declaration of candidacy with the State Board of Elections. He or she must also file a petition signed by a predetermined number of qualified voters. For elections to the United States Sen- ate, that number is equal to one-half of one percent of the registered voters in the Commonwealth, with at least 200 signatures from each of the 11 congressional districts. Va. Code Ann. § 24.2­506 (1993). In 1994, the required number of signatures was 14,871.8 By contrast, the election code provides that the nominees of the two major political parties 9 shall automatically appear ment. Changes with respect to the conduct of primary elections at which party nominees, delegates to party conventions, or party officials are cho- sen are subject to the preclearance requirement of section 5. Where ap- propriate the term `jurisdiction' (but not `covered jurisdiction') includes political parties." 28 CFR § 51.7 (1995). 8 Virginia had 2,974,149 registered voters on January 1, 1994. See State Bd. of Elections, Commonwealth of Virginia, Number of Precincts and Registered Voters as of January 1, 1994, p. 4 (rev. Jan. 10, 1994). One-half of one percent of that figure is 14,871. 9 Virginia law defines the term "political party" to include an organiza- tion of Virginia citizens "which, at either of the two preceding statewide general elections, received at least ten percent of the total vote cast for any statewide office filled in that election." Va. Code Ann. § 24.2­101 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 196 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. on the general election ballot, without the need to declare their candidacy or to demonstrate their support with a nomi- nating petition. § 24.2­511. Party nominees are listed sequentially on the ballot before independent candidates, all of whom are grouped together in a separate row or column or spaced apart from the former.10 §§ 24.2­613, 24.2­640. Virginia law authorizes the two parties to determine for themselves how they will select their nominees-by pri- mary, by nominating convention, or by some other method. § 24.2­509(A).11 The Republican Party has taken advantage (1993). The Democratic Party of Virginia and the Republican Party of Virginia are the only organizations that satisfy that definition. The definition has not been set in stone, however. Before 1991, the term "political party" included only parties that polled 10 percent of the vote at the last preceding statewide election. The Democratic Party, however, did not field a candidate for the 1990 Senate race, and thus would have lost its automatic ballot access for the next election. See 29 Council of State Governments, Book of the States 260 (1992­1993 ed.). Rather than allow that outcome, the Virginia Legislature amended the definition to qualify parties that polled the requisite number of votes at either of the two preceding elections and provided that the amendment would apply retroactively. See 1991 Va. Acts, ch. 12, § 1(7). 10 Virginia law also allows the major political parties to substitute a new nominee should the chosen nominee die, withdraw, or have his or her nomi- nation set aside. In that circumstance, other parties and independent candidates are also permitted to make nominations, but the triggering event occurs only when a party nominee cannot run. The statute thus ensures that the major parties will always have a candidate on the ballot. See Va. Code Ann. §§ 24.2­539, 24.2­540 (1993). 11 In some circumstances, a primary election is required unless the in- cumbent officeholder from that party consents to a different method of nomination. Va. Code Ann. § 24.2­509(B) (1993). In its brief, the Party suggested that this one exception to plenary party control over the method of nomination is unconstitutional. See Brief for Appellees 31. While it appeared that the Party might bring suit before the 1996 election to try to have the provision struck down, see Whitley, Republicans Wrestle with Primary Issue, Richmond Times-Dispatch, Oct. 25, 1995, p. B1, it relented after the Attorney General of Virginia determined that the law was prob- ably valid. See Va. Op. Atty. Gen. (Nov. 22, 1995). In any event, because the incumbent United States Senator was a Democrat in 1994, the Party 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 197 Opinion of Stevens, J. of these options in past elections. Its nominee has some- times been selected by the Party's State Central Committee, sometimes by statewide convention, and sometimes by pri- mary election. Whatever method is chosen, state law re- quires the Commonwealth to place the name of the nominee on the general election ballot.12 In this dual regime, the parties "ac[t] under authority" of Virginia when they decide who will appear on the general election ballot. 28 CFR § 51.7 (1995). It is uncontested that Virginia has sole authority to set the qualifications for ballot access. Pursuant to that authority, the Common- wealth has prescribed stringent criteria for access with which nearly all independent candidates and political organi- zations must comply. But it reserves two places on its bal- lot-indeed, the top two positions 13-for the major parties to fill with their nominees, however chosen. Those parties are effectively granted the power to enact their own qualifi- cations for placement of candidates on the ballot, which the Commonwealth ratifies by adopting their nominees. By holding conventions, for example, the Party does not need to was authorized to follow any method it chose, so long as it named its candidate within the time period prescribed by the statute. 12 The Secretary of the Party is required to certify the name of the nominee to the State Board of Elections. If certification is not timely, however, the board will declare the chosen candidate to be the nominee and treat his or her name as if certified. Va. Code Ann. § 24.2­511 (1993). 13 Research has shown that placement at the top of a ballot often confers an advantage to candidates so positioned. The classic study of the phenomenon is H. Bain & D. Hecock, Ballot Position and Voter's Choice: The Arrangement of Names on the Ballot and its Effect on the Voter (1957). See also Note, California Ballot Position Statutes: An Unconstitu- tional Advantage to Incumbents, 45 S. Cal. L. Rev. 365 (1972) (listing other studies); Note, Constitutional Problems with Statutes Regulating Ballot Position, 23 Tulsa L. J. 123 (1987). Some studies have suggested that the effect of favorable placement varies by type of election, visibility of the race, and even the use of voting machines. See id., at 127. While the research is not conclusive, it is reasonable to assume that candidates would prefer positions at the top of the ballot if given a choice. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 198 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. assemble thousands of signatures on a petition for its nomi- nee. In some years, as few as 550 nominators have selected the Party's candidate for United States Senate.14 Even in 1994, when the Party convention had its largest attendance to date, fewer nominators were present than would have been necessary to meet the petition requirement.15 In any event, state law permits the Party to allow as many or as few delegates as it sees fit to choose the Party nominee. The Party is thus delegated the power to determine part of the field of candidates from which the voters must choose. Correspondingly, when Virginia incorporates the Party's selection, it "endorses, adopts and enforces" the delegate qualifications set by the Party for the right to choose that nominee. Smith v. Allwright, 321 U. S. 649, 664 (1944). The major parties have no inherent right to decide who may appear on the ballot. That is a privilege conferred by Virginia law, not natural law. If the Party chooses to avail itself of this delegated power over the electoral process, it necessarily becomes subject to the regulation.16 14 App. 24 (affidavit of David S. Johnson, Exec. Dir. of Republican Party of Virginia ¶ 12). 15 According to the Party, 14,614 voters attended the 1994 convention. Ibid. A total of 14,871 signatures were required to qualify as an inde- pendent candidate. See n. 8, supra. 16 The Party argues that automatic ballot access is merely a "practical accommodation to political reality" because the major parties have shown, through their performance in previous elections, significant levels of voter support. Brief for Appellees 32. According to the Party, the Party nom- inee need not demonstrate personal support because he or she is credited with the Party's showing. Id., at 33 (citing Weisburd, Candidate-Making and the Constitution: Constitutional Restraints on and Protections of Party Nominating Methods, 57 S. Cal. L. Rev. 213, 242 (1984)). Such "crediting" does not answer the question why the Party nominee should receive automatic ballot access. The fact that the Party has polled well in previous elections does not logically entail any conclusion about the success of its present candidate-especially when that nominee is cho- sen at a convention attended by limited numbers of Party members, rather than a primary. Furthermore, ballot access for all other candidates is 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 199 Opinion of Stevens, J. In concluding that the regulation applies to the Party, we are guided by the reasoning of Smith v. Allwright, decided more than half a century ago. There, Texas gave automatic ballot access to the nominee of any party that polled a cer- tain number of votes at the preceding general election, and required independent candidates to file nominating petitions. Id., at 653, n. 6, 663. We explained that "recognition of the place of the primary in the electoral scheme," rather than the degree of state control over it, made clear that "state delegation to a party of the power to fix the qualifications of primary elections is delegation of a state function that may make the party's action the action of the State." Id., at 660. The only difference here is that Virginia has not required its political parties to conduct primary elections to nominate their candidates. But the right to choose the method of nomination makes the delegation of authority in this case more expansive, not less, for the Party is granted even greater power over the selection of its nominees. See generally L. Tribe, American Constitutional Law § 13­24, p. 1121, and n. 3 (2d ed. 1988); Rotunda, Constitutional and Statutory Restrictions on Political Parties in the Wake of Cousins v. Wigoda, 53 Texas L. Rev. 935, 953­954 (1975); predicated on a showing of individual electability. The Commonwealth certainly may choose to recognize the Party's selection of a nominee, but such recognition is not mandated by any right of the Party to demand placement on the ballot. Contrary to appellees, cases such as Williams v. Rhodes, 393 U. S. 23 (1968), Jenness v. Fortson, 403 U. S. 431 (1971), and American Party of Tex. v. White, 415 U. S. 767 (1974), establish only that political parties with at least a modicum of public support must be pro- vided a reasonable method of ballot access. They do not establish that they are entitled to choose the method itself. According to Justice Thomas, the Party merely "takes advantage of favorable state law" when it certifies its nominee for automatic placement on the ballot. Post, at 274. On that theory, the requirements of 28 CFR § 51.7 (1995) would not be met even if Virginia let only the two major parties place their candidates on the ballot, and no one else. For the same reasons we give below, see infra, at 220­221, it is implausible to think the regulation was meant to apply only in one-party States. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 200 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. Developments in the Law-Elections, 88 Harv. L. Rev. 1111, 1159­1163 (1975). By the logic of Smith, therefore, the Party acted under authority of the Commonwealth.17 It is true that the example set forth in the Attorney Gen- eral's regulation describes changes in the conduct of primary elections. That example, however, does not purport to de- fine the outer limits of the coverage of § 5. Moreover, both in its brief amicus curiae supporting appellants in this case and in its prior implementation of the regulation, the Depart- ment of Justice has interpreted it as applying to changes affecting voting at a party convention.18 We are satisfied 17 Justice Thomas argues that our decision in Smith v. Allwright, 321 U. S. 649 (1944), depended on the State's regulation of the Party's activi- ties. Post, at 268. While it is true that political parties in Smith were subject to extensive regulation, nothing in our decision turned on that factor. Only nine years before Smith, the Court had surveyed the same statutory regime in Grovey v. Townsend, 295 U. S. 45, 50 (1935), and con- cluded that primary elections were private voluntary activity. What changed was not the extent of state regulation, but the Court's under- standing, based on its intervening decision in United States v. Classic, 313 U. S. 299 (1941), that primaries were "a part of the machinery for choosing officials." 321 U. S., at 664. On that basis, the Court overruled Grovey, even though the objectionable practice there of excluding blacks from membership in the party was undertaken by a private, unregulated entity. The irrelevance of state regulation was confirmed in two cases decided after Smith. Subsequent to Smith, South Carolina repealed all of its laws regulating political primaries. The Democratic primary was thereafter conducted under rules prescribed by the Democratic Party alone, which included rules restricting the primary to white persons. The Fourth Cir- cuit struck down those practices, reasoning that "[s]tate law relating to the general election gives effect to what is done in the primary and makes it just as much a part of the election machinery of the state by which the people choose their officers as if it were regulated by law, as formerly." Rice v. Elmore, 165 F. 2d 387, 390­391 (1947) (emphasis added); accord, Baskin v. Brown, 174 F. 2d 391 (1949). The principal opinion in Terry v. Adams, 345 U. S. 461 (1953), declared that these cases were "in accord with the commands of the Fifteenth Amendment and the laws passed pur- suant to it." Id., at 466 (opinion of Black, J.). 18 See Brief for United States as Amicus Curiae 11­13. Since 1981, when the regulation was promulgated, there have been nearly 2,000 pre- clearance submissions involving more than 16,000 proposed changes by 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 201 Opinion of Stevens, J. that the Department's interpretation of its own regulation is correct. See Stinson v. United States, 508 U. S. 36, 45 (1993); Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945). Accordingly, we conclude that the regulation required preclearance of the Party's delegate filing fee. The decision in Williams v. Democratic Party of Georgia, upon which the District Court relied in dismissing this com- plaint, is not to the contrary. The fact that Virginia statutes grant the nominee of the Party a position on the general election ballot graphically distinguishes the two cases. Wil- political parties in covered jurisdictions. See letter from Drew S. Days III, Solicitor General, to William K. Suter, Clerk of the Supreme Court, dated Oct. 4, 1995 (lodged with Clerk of this Court). Of particular note, on April 12, 1982, the Attorney General precleared changes in the delegate selection plan adopted by the Democratic Party of Virginia for its sena- torial nominating convention. See Brief for United States as Amicus Curiae 12, n. 7; letter from Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Div., to Russel Rosen, Executive Director, Demo- cratic Party of Va., dated Apr. 12, 1982 (lodged with Clerk of this Court). Political parties submitted changes in their rules for preclearance, and the Department of Justice interposed objections to those changes, long before 1981. For example: the Sumter County, Alabama, Democratic Ex- ecutive Committee submitted changes in 1974, and the Democratic Party of New York City submitted changes in 1975. See Extension of the Vot- ing Rights Act: Hearings before the Subcommittee on Civil and Constitu- tional Rights of the House Committee on the Judiciary, 97th Cong., 1st Sess., pt. 3, pp. 2246, 2265 (1981) (app. to letter from James P. Turner, Acting Ass't Attorney General, to Rep. Edwards dated Apr. 9, 1981). Parties from New York, North Carolina, and Alabama submitted changes in 1972. See D. Hunter, Federal Review of Voting Changes 69, n. 30 (1974), reprinted in Hearings before the Subcommittee on Civil and Con- stitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st Sess., 1541 (1975). In MacGuire v. Amos, 343 F. Supp. 119, 121 (MD Ala. 1972), a three-judge court held that rules promulgated by the Ala- bama Democratic and Republican Parties governing election of national delegates required preclearance, despite the fact that the rules were not passed by "the State's legislature or by a political subdivision of the State." As a result of this decision, the Democratic Party of Alabama sought judicial preclearance under § 5. See Vance v. United States, Civ. Action No. 1529­72 (DDC Nov. 30, 1972), cited in Hunter, Federal Review of Voting Changes, at 69, n. 30. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 202 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. liams did not concern the selection of nominees for state elective office, but rather a political party's compliance with a rule promulgated by the Democratic National Party gov- erning the selection of delegates to its national convention. According to the District Court's interpretation of Georgia law, the State exercised no control over, and played no part in, the state Party's selection of delegates to the Democratic National Convention.19 Because the Commonwealth dele- gated no authority to the Party to choose the delegates, the Party did not act under the authority, implicit or explicit, of the Commonwealth. If anything, the logic of Williams supports application of the preclearance requirement. The District Court stated that it was "convinced that voting rights connected with the delegate election process are the type of rights Congress in- tended to safeguard" by passage of the Act. Civ. Action No. 16286, at 4. It declined to require the party to preclear changes in its nominating methods only because there were no administrative procedures for submission of such changes at the time of the decision. Id., at 5. Since then, however, the Attorney General has clarified that "an appropriate offi- cial of the political party" may submit party rules affecting 19 "The State has no connection with the delegate selection process or State Party's rules and regulations other than allowing the rules and regu- lations to be filed under Ga. Code Ann. § 34­902. The purpose of such filing is merely to provide a place for public inspection of the State Party's rules and regulations." Williams v. Democratic Party of Georgia, Civ. Action No. 16286 (ND Ga., Apr. 6, 1972), pp. 4­5. In their motion to affirm in that case, the appellees noted that the Secretary of State of Georgia was obligated to approve a political party's rules applicable to the selection of candidates for public office by convention but had no authority to review the rules and regulations promulgated by the National Democratic Party governing the selection of delegates to its national convention. Under the Attorney General's regulation that is now in effect, preclearance of the National Democratic Party's rule change would not have been required if the District Court's interpretation of Georgia law was correct. Our sum- mary affirmance no doubt accepted that court's view of the relevant state law. Cf. Bishop v. Wood, 426 U. S. 341, 345­346 (1976). 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 203 Opinion of Stevens, J. voting for preclearance, 28 CFR § 51.23(b) (1993), thereby eliminating this one practical obstacle. Other lower courts have subsequently required preclearance of internal party rules, even when those rules do not relate to the conduct of primary elections.20 Indeed, if the rationale of Williams were still valid, § 5 would not cover party primaries either, for the party (by hypothesis) would likewise have no means of preclearing changes. But it is firmly established- and the Party does not dispute-that changes affecting pri- maries carried out by political parties must be precleared.21 The District Court was therefore incorrect to base its deci- sion on either the Attorney General's regulation or on our summary affirmance in Williams. The Party's activities fall directly within the scope of the regulation. We next con- clude, based on the language and structure of the Act, and the historical background which informed the Congress that enacted it, that § 5 of its own force covers changes in elec- toral practices such as the Party's imposition of a filing fee for delegates to its convention. IV Section 5 of the Act requires preclearance of changes in "any voting qualification or prerequisite to voting, or stand- ard, practice, or procedure with respect to voting." Section 20 See, e. g., Fortune v. Kings County Democratic Comm., 598 F. Supp. 761, 764 (EDNY 1984) (requiring preclearance of change in voting mem- bership of county party executive committee, because those members per- formed a "public electoral function" in filling vacancies in nominations for state office). 21 We also note that a summary affirmance by this Court is a "rather slender reed" on which to rest future decisions. Anderson v. Celebrezze, 460 U. S. 780, 784­785, n. 5 (1983). "A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment." Ibid. Either of the two grounds discussed above-the State's noninvolvement or the absence of suitable administrative procedures for submission-would have sufficed for our affirmance. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 204 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. 14 defines the terms "vote" or "voting" to include "all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election." 42 U. S. C. § 1973l(c)(1). Although a narrow reading of the text of the Voting Rights Act might have confined the coverage of § 5 to changes in election practices that limit individual voters' access to the ballot in jurisdictions having authority to register voters, see United States v. Sheffield Bd. of Comm'rs, 435 U. S. 110, 140­ 150 (1978) (Stevens, J., dissenting); Holder v. Hall, 512 U. S. 874, 892, 914 (1994) (Thomas, J., concurring in judgment), the Court has squarely rejected that construction. Shortly after the statute was passed, the Court thoroughly reviewed its legislative history and found that Congress intended § 5 to have "the broadest possible scope" reaching "any state enactment which altered the election law of a covered State in even a minor way." Allen v. State Bd. of Elections, 393 U. S., at 566­567. Similarly, in Sheffield, the Court con- cluded that "the language of the Act does not require such a crippling interpretation, but rather is susceptible of a reading that will fully implement the congressional objec- tives." 435 U. S., at 117. We expressly held that "§ 5, like the constitutional provisions it is designed to implement, ap- plies to all entities having power over any aspect of the elec- toral process within designated jurisdictions, not only to counties or to whatever units of state government perform the function of registering voters." Id., at 118. More re- cently we noted that § 5 is "expansive within its sphere of operation" and "comprehends all changes to rules governing voting." Presley v. Etowah County Comm'n, 502 U. S. 491, 501 (1992). 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 205 Opinion of Stevens, J. We have consistently construed the Act to require pre- clearance of any change in procedures or practices that may bear on the "effectiveness" of a vote cast in "any pri- mary, special, or general election." 42 U. S. C. § 1973l(c)(1). Rules concerning candidacy requirements and qualifications, we have held, fall into this category because of their poten- tial to "undermine the effectiveness of voters who wish to elect [particular] candidates." Allen, 393 U. S., at 570; see also Dougherty County Bd. of Ed. v. White, 439 U. S. 32, 40 (1978). Changes in the composition of the electorate that votes for a particular office-that is, situations that raise the specter of vote dilution-also belong to this class because they could "nullify [voters'] ability to elect the candidate of their choice just as would prohibiting some of them from vot- ing." 393 U. S., at 569. This nexus between the changed practice and its impact on voting in the general election has been a recurring theme in our cases interpreting the Act. See Chisom v. Roemer, 501 U. S. 380, 397 (1991) ("Any abridgment of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election"). In its reenactments and extensions of the Act, moreover, Congress has endorsed these broad constructions of § 5. See, e. g., S. Rep. No. 97­417, pp. 6­7, and n. 8 (1982). A filing fee for party delegates operates in precisely the same fashion as these covered practices. By limiting the opportunity for voters to participate in the Party's conven- tion, the fee undercuts their influence on the field of candi- dates whose names will appear on the ballot, and thus weak- ens the "effectiveness" of their votes cast in the general election itself. As an elementary fact about our Nation's po- litical system, the significance of the nominating convention to the outcome in the general election was recognized as long ago as Justice Pitney's concurrence in Newberry v. United States, 256 U. S. 232 (1921). Joined by Justices Brandeis and Clarke, he wrote: "As a practical matter, the ultimate choice 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 206 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. of the mass of voters is predetermined when the nominations [by the major political parties] have been made." Id., at 286 (opinion concurring in part). See also United States v. Clas- sic, 313 U. S. 299, 319 (1941) (endorsing the Newberry concur- rence). Just like a primary, a convention narrows the field of candidates from a potentially unwieldy number to the seri- ous few who have a realistic chance to win the election. We have held, in fact, that the State's compelling interest in win- nowing down the candidates justifies substantial restrictions on access to the ballot. American Party of Tex. v. White, 415 U. S. 767, 782, and n. 14 (1974). Virginia, no doubt, would justify its own ballot access rules-including those for the major parties-on just this basis.22 We have previously recognized that § 5 extends to changes affecting nomination processes other than the primary. In Whitley v. Williams, one of the companion cases decided with Allen, this Court affirmed § 5 coverage of a scheme that placed new burdens on voters who wished to nominate inde- pendent candidates by petition. The Court was uncon- cerned that the changes did not directly relate to the conduct of a primary, because they had an effect on the general elec- tion. See Allen, 393 U. S., at 570. One of those changes was a requirement that each nominator sign the petition per- sonally and state his or her polling precinct and county. See id., at 551. Like the filing fee in this case, that condition made it more difficult for voters to participate in the nomina- 22 Virginia created its first signature requirement for self-nominated can- didates in 1936. See Va. Code Ann., Tit. 6, § 154 (1936) (requiring petition signed by 250 qualified voters of the Commonwealth). Although the Com- monwealth maintains limited legislative history records, contemporary news accounts reported that the provision was designed to "discourage cranks and persons who for personal glorification take advantage of the very liberal terms of the election code." New Qualification, The Rich- mond News Leader, Mar. 6, 1936, p. 8. Then as now, political parties were exempt from the signature requirement. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 207 Opinion of Stevens, J. tion process, and therefore properly fell within § 5's scope. A fee of $45 to cast a vote for the Party nominee is, if any- thing, a more onerous burden than a mere obligation to in- clude certain public information about oneself next to one's name on a nominating petition. In dissent, Justice Harlan agreed that "the nominating petition is the functional equiv- alent of the political primary." Id., at 592 (opinion concur- ring in part and dissenting in part). Delegate qualifications are in fact more closely tied to the voting process than practices that may cause vote dilution, whose coverage under § 5 we have repeatedly upheld. Vir- ginia, like most States, has effectively divided its election into two stages, the first consisting of the selection of party candidates and the second being the general election itself. See United States v. Classic, 313 U. S., at 316. Exclusion from the earlier stage, as two appellants in this case experi- enced, does not merely curtail their voting power, but abridges their right to vote itself. To the excluded voter who cannot cast a vote for his or her candidate, it is all the same whether the party conducts its nomination by a pri- mary or by a convention open to all party members except those kept out by the filing fee. Each is an "integral part of the election machinery." Id., at 318. The reference to "party office" in § 14, which defines the terms "vote" and "voting" as they appear throughout the Act, reinforces this construction of § 5. Section 14 specifi- cally recognizes that the selection of persons for "party of- fice" is one type of action that may determine the effective- ness of a vote in the general election. Delegates to a party convention are party officers. See H. R. Rep. No. 439, 89th Cong., 1st Sess., 32 (1965) ("Thus, for example, an election of delegates to a State party convention would be covered by the act"). The phrase "votes cast with respect to candidates for public or party office" in § 14 is broad enough to encom- pass a variety of methods of voting beyond a formal elec- 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 208 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. tion.23 Cf. Classic, 313 U. S., at 318. The Party itself rec- ognizes this point, for both in its brief to this Court and in its Plan of Organization, it repeatedly characterizes its own method of selecting these delegates as an "election." 24 The legislative history of § 14 supports this interpretation. Representative Bingham proposed addition of the term "party office" to the language of the section for the express purpose of extending coverage of the Act to the nominating activities of political parties. See Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 456­457 (1965) (proposing coverage of "political party meetings, councils, conventions, and referendums which lead to endorsement or selection of candidates who will run in primary or general elections"). Congressional concern that the Act reach the selection of party delegates was not merely speculative. On the floor of the House, Representative Bingham expressed the impor- tance of preventing a reprise of the fiasco of the previous year, 1964, "when the regular Democratic delegation from Mississippi to the Democratic National Convention was chosen through a series of Party caucuses and conventions from which Negroes were excluded." 111 Cong. Rec. 16273 (1965); see also Hearings on H. R. 6400, 89th Cong., 1st Sess., 23 Quoting this very language, we have observed that candidates are nominated, not elected. Chisom v. Roemer, 501 U. S. 380, 400 (1991). It is not anomalous, therefore, to hold that § 5 applies regardless of the means of nomination. 24 See Brief for Appellees 2; App. 32 (Republican Party Plan, Art. II, ¶ 22) (defining "Party Canvass" as "a method of electing . . . delegates to Conventions"); id., at 52 (Plan, Art. VIII, § A, ¶ 3) (referring to "any elec- tion by a Mass Meeting, Party Canvass, or Convention"); id., at 56 (Plan, Art. VIII, § H, ¶ 4); id., at 23 (affidavit of David S. Johnson, Exec. Dir. of Republican Party of Virginia, ¶¶ 5, 8). The call for the state convention itself, to which appellants responded, stated: "The delegates and alter- nates shall be elected in county and city Mass Meetings, Conventions or Party Canvasses that shall be held between March 1, 1994 and April 1, 1994." Id., at 62. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 209 Opinion of Stevens, J. at 456 ("The events of 1964 demonstrate the need" to expand § 14). As he later explained, the solution that was reached to this problem was "to add to the definition of the word `vote' in section 14(c)(1)." 111 Cong. Rec. 16273. The Par- ty's delegates to its 1994 convention were chosen through precisely the same methods Representative Bingham de- scribed: mass meetings, conventions, and canvasses. Ex- empting the Party from the scope of § 14 would thus defeat the purpose for which the House and eventually Congress as a whole adopted Representative Bingham's amendment. The text of § 2 also makes apparent the Act's intended cov- erage of nonprimary nomination methods. Section 2, which bans any "voting qualification or prerequisite" that discrimi- nates on account of race or color, considers a violation to have occurred if "the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [groups protected by the Act] in that its members have less opportunity than other members of the electorate to participate in the political proc- ess and to elect representatives of their choice." 42 U. S. C. § 1973(b) (1988 ed.) (emphasis added). Under the broad sweep of this language, exclusion from a nominating conven- tion would qualify as a violation. Section 2 "adopts the functional view of `political process' " and applies to "any phase of the electoral process." S. Rep. No. 97­417, at 30, and n. 120. If such practices and procedures fall within the scope of § 2, they must also be subject to § 5. In recent cases, some Members of this Court have questioned whether § 2 is as broad as § 5, see Chisom v. Roemer, 501 U. S., at 416­417 (Scalia, J., dissenting); Holder v. Hall, 512 U. S., at 882­885 (opinion of Kennedy, J.); id., at 930 (Thomas, J., concurring in judgment), but there has never been any doubt about the converse-that changes in practices within covered jurisdic- tions that would be potentially objectionable under § 2 are also covered under § 5. The purpose of preclearance is to 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 210 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. prevent all attempts to implement discriminatory voting practices that change the status quo. If § 5 were narrower than § 2, then a covered jurisdiction would not need to pre- clear changes in voting practices known to be illegal. "It is unlikely that Congress intended such an anomalous result." Chisom, 501 U. S., at 402.25 A fair reading of the text of § 5 unquestionably supports the conclusion that by imposing its filing fee the Party sought to administer a "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968." 42 U. S. C. § 1973c (1988 ed.). V Consideration of the history that led to passage of the Act confirms our construction of § 5. The preamble to the stat- 25 In fact, it did not. The 1981 House Report states that "whether a discriminatory practice or procedure is of recent origin affects only the mechanism that triggers relief, i. e., litigation or preclearance." H. R. Rep. No. 97­227, p. 28. That statement indicates that the substantive standards for § 2 and § 5 violations are the same, so long as the challenged practice represents a change from 1965 conditions, as the filing fee did here. Even more explicitly, the 1982 Senate Report states that "a section 5 objection also follow[s] if a new voting procedure itself so discriminates as to violate section 2." S. Rep. No. 97­417, p. 12, n. 31. The Report refers to voting procedures that dilute minority voting strength. See id., at 10. We have recognized that measures undertaken by both " `[s]tate legislatures and political party committees' " have had just such dilutive effects, through devices that included " `switching to at-large elections where Negro voting strength is concentrated in particular election dis- tricts, facilitating the consolidation of predominantly Negro and predomi- nantly white counties, and redrawing the lines of districts to divide con- centrations of Negro voting strength.' " Perkins v. Matthews, 400 U. S. 379, 389 (1971) (quoting Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 17 (1969) (remarks of Mr. Glickstein)) (emphasis added). See also n. 27, infra. Contrary to Justice Thomas, therefore, Congress has already "harmonize[d]" §§ 2 and 5, see post, at 282; it is he who seeks to sunder them. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 211 Opinion of Stevens, J. ute expressly identifies the "fifteenth amendment" as the constitutional provision the Act was designed to imple- ment.26 Our cases dealing with the applicability of that Amendment to the selection of party candidates in States that engaged in the sort of voting discrimination that § 5 was designed to remedy are therefore directly relevant. See McCain v. Lybrand, 465 U. S. 236, 246 (1984) (interpreting Act "in light of its prophylactic purpose and the historical experience which it reflects"); Dougherty County Bd. of Ed. v. White, 439 U. S., at 37 (seeking "guidance from the history and purpose of the Act"). In a series of decisions known as the White Primary Cases, this Court applied the Fifteenth and Fourteenth Amendments to strike down a succession of measures by authorities in Texas to exclude minority voters from their nomination processes. These cases demonstrate that electoral practices implemented by political parties have the potential to "den[y] or abridg[e] the right to vote on account of race or color," which § 5 prohibits. 42 U. S. C. § 1973c (1988 ed.). Nixon v. Herndon, 273 U. S. 536 (1927), involved the valid- ity of a Texas statute enacted in 1923 that flatly provided " `in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas,' " id., at 540. It took only a paragraph for Justice Holmes to conclude that it was "unnecessary to consider the Fifteenth Amendment, because it seems to us hard to imag- ine a more direct and obvious infringement of the Four- teenth." Id., at 540­541. Promptly after the announce- ment of that decision, the Texas Legislature responded to what it regarded as an emergency by replacing the invalid provision with a substitute that authorized the executive committee of every political party to determine "in its own way" who shall be "qualified to vote or otherwise participate in such political party." Nixon v. Condon, 286 U. S. 73, 82 26 "To enforce the fifteenth amendment to the Constitution of the United States, and for other purposes." 79 Stat. 437. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 212 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. (1932). The State Executive Committee of the Democratic Party adopted a rule that only "white democrats" could par- ticipate in the party's primary elections. Pursuant to that rule, Mr. Nixon was again refused a primary ballot and again persuaded this Court that the authors of the discriminatory rule should be "classified as representatives of the State to such an extent and in such a sense that the great restraints of the Constitution set limits to their action." Id., at 89. The decision in Nixon v. Condon relied on the fact that a state statute authorized the Party's Executive Committee to determine the qualifications of voters. Thereafter the Party implemented the same discriminatory policy without statutory authorization by adopting a resolution at a state convention restricting party membership to "white persons." When it first confronted the issue, the Court held that imple- mentation of that rule was not state action. Grovey v. Townsend, 295 U. S. 45 (1935). A few years later, however, Grovey was overruled and the Court decided that the resolu- tion adopted by the party's state convention constituted state action violative of the Fifteenth Amendment even though it was not expressly authorized by statute. Smith v. Allwright, 321 U. S. 649 (1944). We wrote: "The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any State because of race. This grant to the people of the opportunity for choice is not to be nullified by a State through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. Lane v. Wilson, 307 U. S. 268, 275 [(1939)]." Id., at 664. The same policy of excluding all nonwhite voters from the electoral process was thereafter implemented in certain 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 213 Opinion of Stevens, J. Texas counties by a private organization known as the Jaybird Democratic Association. It conducted a so-called "Jaybird primary" at which white voters selected candidates who thereafter ran in and nearly always won the Democratic Party's primary and the general election. Although the Jaybirds had no official status, received no state funds, and conducted a purely private election, the Court readily con- cluded that this voluntary association's exclusion of black voters from its primaries on racial grounds was prohibited by the Fifteenth Amendment. Terry v. Adams, 345 U. S. 461 (1953). Citing our earlier cases, Justice Clark tersely noted that an "old pattern in new guise is revealed by the record." Id., at 480 (concurring opinion). Congress passed the Voting Rights Act of 1964 because it concluded that case-by-case enforcement of the Fifteenth Amendment, as exemplified by the history of the white pri- mary in Texas, had proved ineffective to stop discriminatory voting practices in certain areas of the country on account of the intransigence of officials who "resorted to the extraordi- nary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees." South Carolina v. Katzenbach, 383 U. S., at 335 (citing H. R. Rep. No. 439, at 10­11; S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 8, 12 (1965)). The preclearance system of § 5 was designed to end this evasion once and for all. By prohibiting officials in cov- ered jurisdictions from implementing any change in voting practices without prior approval from the District Court for the District of Columbia or the Attorney General, it sought to "shift the advantage of time and inertia from the perpe- trators of the evil to its victims." South Carolina v. Katz- enbach, 383 U. S., at 328.27 27 Congress was plainly aware of the power of political parties to carry out discriminatory electoral practices as a supplement to or a substitute for voting discrimination by government officials. Of course, the White Primary Cases supplied the primary historical examples of such prac- 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 214 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. The distinction between a primary and a nominating con- vention is just another variation in electoral practices that § 5 was intended to cover. The imposition of a $45 fee on tices. See H. R. Rep. No. 439, 89th Cong., 1st Sess., 8 (1965). In addition, during the 1970 extension of the Act, Congress heard testimony from the Director of the United States Civil Rights Commission wherein he reiter- ated the influence political parties continued to exercise over the electoral process in jurisdictions designated under the Act. He testified that "[s]tate legislatures and political party committees in Alabama and Missis- sippi have adopted laws or rules since the passage of the act which have had the purpose or effect of diluting the votes of newly enfranchised Negro voters." Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 17 (1969) (remarks of Mr. Glickstein), quoted in Perkins v. Matthews, 400 U. S., at 389. As examples, he introduced evidence that in 1968 the Mis- sissippi Democratic Party persisted in its "pattern of exclusion of and dis- crimination against Negroes at precinct meetings, county conventions and the State convention," Hearings on Voting Rights Act Extension, 91st Cong., 1st Sess., at 18­19; that other officials "withheld information from black party members about party precinct meetings and conventions or have prevented them from participating fully," id., at 18, 43; that the Ala- bama Democratic Party raised candidate filing fees for some of its pri- maries tenfold after blacks began voting in large numbers, id., at 18, 27; and that various party executive committees refused to count votes by blacks who were not on the registration books, even if they were listed by the Federal Examiner, id., at 46, engaged in discriminatory purges of black voters, id., at 48, and misled black candidates about the requirements for running in primary elections or did not notify them of their failure to qualify until after deadlines had passed, id., at 46­47. In his testimony, Director Glickstein summarized the more extensive findings about discriminatory electoral practices carried out by the estab- lished political parties that were set forth in a report prepared by the United States Commission on Civil Rights pursuant to congressional direc- tive. See id., at 17­18. It concluded that, three years after passage of the Act, "in some areas there has been little or no progress in the entry and partici- pation by Negroes in political party affairs-the key to meaningful partici- pation in the electoral process. Some of the practices found are reminis- cent of those which existed at an earlier time during Reconstruction when fear of `Negro government' gave rise to intimidation and a number of elec- tion contrivances which finally led to disenfranchisement of the Negro citi- 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 215 Opinion of Stevens, J. the privilege of participating in the selection of the Party's nominee for the United States Senate is equally a practice or procedure relating to voting whether the selection is made by primary election or by a "convention" in which every voter willing to pay the fee is eligible to cast a vote. A primary election would not cease to be a practice relating to voting if the Party imposed such a high fee that only 14,000 voters cast ballots; nor should a "convention" performing the same electoral function as a primary avoid coverage because fewer voters participate in the process than normally vote in a primary. As was true in Sheffield, "the District Court's interpretation of the Act . . . makes § 5 coverage depend upon a factor completely irrelevant to the Act's purposes, and thereby permits precisely the kind of circumvention of con- gressional policy that § 5 was designed to prevent." 435 U. S., at 117. It would undermine the Act to permit " `[s]uch a variation in the result from so slight a change in form.' " Terry v. Adams, 345 U. S., at 465, n. 1 (quoting Smith v. All- wright, 321 U. S., at 661). Section 5 coverage of nominating conventions follows di- rectly from our decision in Terry. Although called a "pri- mary," the Jaybird election was the equivalent of the Party's nominating convention, for it did not involve the State's elec- toral apparatus in even the slightest way-neither to supply election officials, nor ballots, nor polling places. See 345 U. S., at 471 (opinion of Frankfurter, J.). In fact, the Jay- birds went far beyond the Party in immunizing their nomina- tion process from the State's control. The Jaybird nominee did not receive any form of automatic ballot access. He filed individually as a candidate in the Democratic primary, paid the filing fee, and complied with all requirements to which other candidates were subject. Id., at 486­487 (Minton, J., dissenting). No mention of the nominee's Jaybird affiliation was ever made, either on the primary or on the general elec- zen." U. S. Commission on Civil Rights, Political Participation 178 (May 1968). 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 216 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. tion ballot. Those elections, moreover, were open to any candidate who was able to meet the filing requirements, and to black as well as white voters. If the Jaybirds' nominating process violated the Fifteenth Amendment because black voters were not permitted to participate, despite the entirely voluntary nature of the Jaybird association, then § 5-which requires preclearance of all practices with the potential to discriminate-must cover the Party's exclusion of voters from its convention.28 Appellees nevertheless assert that Terry, like the other White Primary Cases, has no bearing on the proper interpre- tation of the Voting Rights Act. They offer three reasons for that contention: first, that their convention did not oper- ate in a racially discriminatory manner, Brief for Appellees 37; second, that the 89th Congress did not intend to legislate to the "outer limit" of the Fifteenth Amendment, ibid.; and third, that present-day Virginia is not a one-party Common- wealth, unlike Texas after Reconstruction, id., at 36. None of these reasons is persuasive. First, while it is true that the case before us today does not involve any charge of racial discrimination in voting, the decision whether discrimination has occurred or was in- tended to occur, as we have explained on many occasions, is for the Attorney General or the District Court for the Dis- trict of Columbia to make in the first instance. NAACP v. Hampton County Election Comm'n, 470 U. S. 166, 181 (1985); McCain v. Lybrand, 465 U. S., at 250; Dougherty County Bd. of Ed. v. White, 439 U. S., at 42; Georgia v. United States, 411 U. S. 526, 534 (1973); Perkins v. Matthews, 28 The analogy is even closer, for the Jaybirds originally performed their nominations in mass meetings. See 345 U. S., at 470 (opinion of Frank- furter, J.); id., at 480 (Clark, J., concurring). Nothing in any of the opin- ions suggests-and it would be perverse to suppose-that the Jaybirds' nominating activities only became unconstitutional when they switched to balloting methods. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 217 Opinion of Stevens, J. 400 U. S. 379, 383­385 (1971); Allen v. State Bd. of Elections, 393 U. S., at 570. The critical question for us, as for the District Court below, is whether "the challenged alteration has the potential for discrimination." Hampton County Election Comm'n, 470 U. S., at 181 (emphasis in original). It is not contested that the Party's filing fee had that potential.29 The second argument misconceives the purpose of the pre- clearance system and the nature of the Act as a whole. Again, the very preamble of the Act states that its purpose is to enforce the Fifteenth Amendment. 79 Stat. 437. Sec- tion 5 "is a means of assuring in advance the absence of all electoral illegality, not only that which violates the Voting Rights Act but that which violates the Constitution as well." Chisom, 501 U. S., at 416 (Scalia, J., dissenting) (emphasis added). It is beyond question, therefore, that the Act en- compassed the discriminatory practices struck down in Terry and Smith, which this Court had found violative of the same constitutional guarantees. Not only were they the leading cases securing the right to vote against racial discrimination at the time of enactment, but Congress passed the Act to facilitate the enforcement effort they embodied. It strains credulity to suppose that despite Congress' professed impa- tience with the "case-by-case" method of enforcing voting rights, it did not mean to cover the cases that capped the struggle to end the white primary.30 29 Justice Thomas' claim that there has been no purposeful evasion of the Constitution, see post, at 269­270, is therefore irrelevant. 30 Appellees' theory is particularly unpersuasive in light of the fact that other parts of the Voting Rights Act reach beyond the scope of § 1 of the Fifteenth Amendment. For example, the Act created a per se ban on literacy tests despite this Court's decision that facially fair tests are not themselves unconstitutional. Lassiter v. Northampton County Bd. of Elections, 360 U. S. 45 (1959). We upheld this exercise of Congress' power under § 2 of the Amendment without overruling Lassiter. South Carolina v. Katzenbach, 383 U. S. 301, 334 (1966); see also City of Rome 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 218 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. The final argument fares no better. We have expressly rejected the contention that the right to vote depends on the success rate of the candidates one endorses. Voting at the nomination stage is protected regardless of whether it "in- variably, sometimes or never determines the ultimate choice of the representative." United States v. Classic, 313 U. S., at 318. The operative test, we have stated repeatedly, is whether a political party exercises power over the electoral process. See United States v. Sheffield Bd. of Comm'rs, 435 U. S., at 122 ("§ 5 has to apply to all entities exercising con- trol over the electoral processes within the covered States or subdivisions"); Dougherty County Bd. of Ed. v. White, 439 U. S., at 44­45 (§ 5 coverage depends only on the "impact of a change on the elective process"); Terry, 345 U. S., at 481 ("[A]ny `part of the machinery for choosing officials' becomes subject to the Constitution's restraints") (quoting Smith v. Allwright, 321 U. S., at 664). That situation may arise in two-party States just as in one-party States. Indeed, the Terry concurrence summarized Smith as holding that "the Democratic Party of itself, and perforce any other political party, is prohibited by [the Fifteenth] Amendment from con- ducting a racially discriminatory primary election." Terry, 345 U. S., at 481 (Clark, J., concurring) (emphasis added). See also Moore v. Ogilvie, 394 U. S. 814, 818 (1969) (holding that the use of nomination petitions by independent candi- dates is a procedure that "must pass muster against the charges of discrimination or of abridgment of the right to vote"); Classic, 313 U. S., at 318.31 The contrary position v. United States, 446 U. S. 156, 173­178 (1980). Congress again legislated beyond the reach of the Fifteenth Amendment when it amended § 2 of the Act to reject the "intent test" propounded in Mobile v. Bolden, 446 U. S. 55 (1980). See S. Rep. No. 97­417, at 39­43. 31 Justice Thomas contends that United States v. Classic is inapplicable because Party nominating conventions are not " `by law made an integral part of the election machinery.' " Post, at 270, n. 12. Moore v. Ogilvie, 394 U. S. 814 (1969), shows that this view is incorrect. The Court in Moore held that the use of nominating petitions by independent candidates 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 219 Opinion of Stevens, J. would make little sense. On appellees' theory, one political party could not exclude blacks from the selection of its nomi- nee, however it chose that individual, but two parties each independently could. In any event, the controlling factor for our construction of § 5 is Congress' intent. It is apparent from the legislative history that Congress did not mean to limit § 5 to political parties whose nominating procedures "foreordained" the results of the general election, see post, at 269 (Thomas, J., dissenting). The impetus behind the addition of the term "party office" to § 14 was the exclusion of blacks from the Mississippi delegation to the National Democratic Conven- tion in 1964. See supra, at 208­209. The activities of those delegates did not settle the result of the Presidential race; Republican candidates won the general election in 1952 and 1956, and from 1968 until 1992, excluding 1976. Neverthe- less, Congress insisted that the selection of those delegates must be open to all voters, black and white. The imposition by an established political party-that is to say, a party authorized by state law to determine the method of selecting its candidates for elective office and also authorized to have those candidates' names automatically ap- pear atop the general election ballot-of a new prerequisite to voting for the party's nominees is subject to § 5's preclear- ance requirement. was an " `integral part of the election process,' " even though a nominating petition obviously is not a primary, and that procedure plainly was not "merged by law," post, at 270, n. 12, into the State's election apparatus. See 394 U. S., at 818 (citing Classic and Smith); MacDougall v. Green, 335 U. S. 281, 288 (1948) (Douglas, J., dissenting). See also Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 457 (1965) (statement of Rep. Bingham) ("It is clear that political party meetings, councils, conventions, and referendums which lead to endorsement or selection of candidates who will run in pri- mary or general elections are, in most instances, a vital part of the election process") (citing Smith and Terry). 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 220 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. VI Justice Kennedy and Justice Thomas reject our con- struction of § 5 for a number of reasons, none of which is convincing. They rely primarily on the argument that, under a literal reading of the statutory text, a political party is not a "State or political subdivision" within the meaning of § 5 because it is not a unit of government. See post, at 253­276 (Thomas, J., dissenting); post, at 248­250 (Ken- nedy, J., dissenting). The radicalism of this position should not be underestimated. It entirely rejects the distinction between primary elections and conventions that is the cen- terpiece of the Party's argument. On this view, even if a political party flagrantly discriminated in the selection of candidates whose names would appear on the primary elec- tion ballot or in the registration of voters in a primary elec- tion, it would not fall within the coverage of § 5. Unsurpris- ingly, neither the District Court nor the Party advanced this extreme argument, for it is plainly at war with the intent of Congress and with our settled interpretation of the Act.32 Almost two decades ago we held in United States v. Shef- field Bd. of Comm'rs that "§ 5, like the constitutional pro- visions it is designed to implement, applies to all entities having power over any aspect of the electoral process within designated jurisdictions." 435 U. S., at 118 (emphasis added). We understood the phrase "State or political subdi- vision" to have a "territorial reach" that embraced "actions that are not formally those of the State." Id., at 127. The Court even invoked Terry to make its point. 435 U. S., at 127. Justice Thomas' efforts to confine Sheffield and our subsequent decision in Dougherty do not make sense of those cases. Dougherty held that a county school board qualifies 32 The Party makes passing reference to the idea in its brief, but the surrounding argument makes clear that it only challenges application of the regulation to its nominating activities. See Brief for Appellees 30­40. At oral argument, moreover, the Party confirmed that it believed § 5 could encompass the activities of political parties. See Tr. of Oral Arg. 28­30. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 221 Opinion of Stevens, J. as a "State or political subdivision" even though it is clearly neither "one of the 50 constituent States of the Union," post, at 254, nor "a political subdivision" of any such State in a literal sense or as that term is defined in the statute itself.33 Indeed, a major political party has far more power over the electoral process than a school board, which we conceded has "no nominal electoral functions." Dougherty, 439 U. S., at 44. Besides the fact that it contravenes our precedents, this argument fails at the purely textual level. The Voting Rights Act uses the same word as the Fifteenth Amend- ment-"State"-to define the authorities bound to honor the right to vote. Long before Congress passed the Voting Rights Act, we had repeatedly held that the word "State" in the Fifteenth Amendment encompassed political parties. See Smith v. Allwright; Terry v. Adams. How one can si- multaneously concede that "State" reaches political parties under the Fifteenth Amendment, yet argue that it "plainly" excludes all such parties in § 5, is beyond our understanding. Imposing different constructions on the same word is espe- cially perverse in light of the fact that the Act-as it states on its face-was passed to enforce that very Amendment. See United States v. CIO, 335 U. S. 106, 112 (1948) ("There is no better key to a difficult problem of statutory construc- tion than the law from which the challenged statute emerged"). Speculations about language that might have more clearly reached political parties are beside the point. It would be a mischievous and unwise rule that Congress cannot rely on our construction of constitutional language when it seeks to exercise its enforcement power pursuant to the same provisions.34 33 The statute defines "political subdivision" as a unit of government that registers voters. 42 U. S. C. § 1973l(c)(2) (1988 ed.). 34 Justice Kennedy and Justice Thomas nevertheless argue that Congress should have borrowed language from 42 U. S. C. § 1983 if it had intended § 5 to cover political parties. To bolster the point, they cite the "Prohibited acts" provision of the Act, § 11(a), which forbids any "per- 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 222 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. Justice Thomas makes two other arguments. First, he contends that we should not defer to the Attorney General's regulation when construing the coverage of § 5. See post, at 258. The argument is surprising because our explanation of why § 5 applies to political parties places no reliance on principles of administrative deference. It is nevertheless interesting to note that the regulation has been endorsed by three successive administrations.35 son acting under color of law" to interfere with the exercise of the right to vote. See 42 U. S. C. § 1973i(a) (1988 ed.). It is quite natural, however, that Congress would draw on § 1983 when it sought to draft provisions that established individual liability for persons who violate civil rights such as the right to vote. Section 1983 was designed "to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." Monroe v. Pape, 365 U. S. 167, 172 (1961). Section 11(a) served exactly the same end, and therefore used similar language. By contrast, Congress would not have looked to § 1983 to supply lan- guage for § 5 for the simple reason that § 1983 does not reach the one type of entity Congress most desired § 5 to cover: the States themselves. See Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989). Justice Thomas tries to avoid this problem by proposing a new, disjunctive statu- tory phrase that is supposedly clearer than the present § 5: " `State or political subdivision or any person acting under color of State law.' " Post, at 265 (emphasis deleted). That concatenation of elements, however, appears in no statute ever enacted, so it is unclear why it is preferable to language that had already been construed by this Court. Furthermore, the "person acting under color of state law" locution would be simultane- ously too broad and too narrow in that context. Section 5 focuses not on actions that individuals carry out, but on voting practices that organiza- tions enact or implement. Ordinary "persons" do not create and imple- ment voting practices. At the same time, the "plain meaning" of the word "person" does not include political parties. While "person" can be read more broadly, so can "State," as our precedents show. Finally, if "person" reached nonnatural entities, it would become partly redundant with the word "State," which the dissent itself concedes encompasses political units smaller than States. See Sheffield; Dougherty. In short, it is hardly sur- prising that Congress opted for the language of the Constitution rather than Justice Thomas' concocted phrase. 35 Justice Thomas is unwilling to accept our representation as to the reasoning underlying our decision; he goes on at great length about our 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 223 Opinion of Stevens, J. Second, relying principally on Jackson v. Metropolitan Edison Co., 419 U. S. 345 (1974), and Flagg Bros., Inc. v. Brooks, 436 U. S. 149 (1978), Justice Thomas argues that a major political party is not a "state actor" unless its nomi- nees are virtually certain to win the general election. See post, at 264­276. Thus, the Party would be a state actor if Virginia allowed only its candidates' names to appear on the ballot, but if the privilege of ballot access (or a preferred position) is reserved to two parties, neither is performing a public function when it selects its nominees. Given Justice Thomas' reliance on cases construing the reach of the Four- teenth Amendment, the argument seems to challenge both the constitutional power of Congress to prohibit discrimina- tion in the Party's selection of its nominees for federal office and our construction of the statute. To the extent the argument addresses the constitutionality of the Act, it is wholly unconvincing. Jackson held that a private utility did not act "under color of any statute . . . of any State" within the meaning of 42 U. S. C. § 1983 when it terminated a customer's electric service. Flagg Bros. held that a warehouseman did not violate § 1983 when it sold goods that were entrusted to it for storage. In both cases, this Court concluded that the defendants were not acting under authority explicitly or implicitly delegated by the State when they carried out the challenged actions. In this case, however, as we have already explained, supra, at 195­ 200, the Party acted under the authority conferred by the Virginia election code. It was the Commonwealth of Vir- ginia-indeed, only Virginia-that had the exclusive power to reserve one of the two special ballot positions for the treatment of the regulation, claiming that we "displac[e]" § 5 with it, post, at 258, n. 4; that we "substitut[e]" it as the "analytical starting point" of the case, post, at 262; and that by considering it we somehow prejudge the question presented, post, at 263. None of these assertions is accurate. We begin our discussion of the case by analyzing the regulation for the simple reason that the District Court rested its decision on that ground, and the Party argues that the regulation supports its position. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 224 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. Party.36 Moreover, unlike cases such as Jackson and Flagg Bros., this is a case in which Congress has exercised the en- forcement power expressly conferred to it by § 2 of the Fif- teenth Amendment. That power unquestionably embraces the authority to prohibit a reincarnation of the white pri- maries, whether they limit the field of viable candidates to just one as in Terry, or to just two as would be permissible under Justice Thomas' construction of the Act. To the extent the argument addresses the coverage of the Act, it is equally unconvincing. As we have already ex- plained, the legislative history of the Act makes it perfectly clear that Congress did not intend to limit the application of § 5 to nominating procedures that "foreordained" the results of the general election. After the statute was enacted, the majority opinions in Jackson and Flagg Bros. included lan- guage that may limit the reach of the constitutional holdings in the White Primary Cases. Those later opinions, however, shed no light on the intent of the Congress that had already enacted the Voting Rights Act and unambiguously expressed a purpose to have it apply to the candidate selection process. While Justice Thomas would narrowly confine the coverage 36 While Justice Thomas relies heavily on Justice O'Connor's dis- senting opinion in Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991), he overlooks the fact that the Court's holding in that case makes it clear that state delegation of selection powers to two adversaries instead of just one state actor does not preclude a finding of state action. The Edmonson dissent argued that since peremptory strikes are available to both opposing sides in a lawsuit, the State cannot simultaneously advance each party's use. The dissent reasoned, therefore, that the State is "neu- tral" as to their use and not " `responsible' " for it. Id., at 643. Virginia, on the other hand, grants automatic ballot access to only two entities, and requires everyone else to comply with more onerous requirements. As we have shown, Virginia gives a host of special privileges to the major parties, including automatic access, preferential placement, choice of nomi- nating method, and the power to replace disqualified candidates. See supra, at 195­197, and nn. 10­13. It is perfectly natural, therefore, to hold that Virginia seeks to advance the ends of both the major parties. 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 225 Opinion of Stevens, J. of the Act to practices that prevent a voter at a general elec- tion from casting a ballot and having it counted, see post, at 278 (citing the concurrence in Holder v. Hall, 512 U. S. 874 (1994)), we have no doubt that Congress intended to prohibit the dominant political parties from engaging in discrimina- tory practices in primary elections as well as conventions of the character involved in this case. In his separate dissent, Justice Kennedy accuses us of adopting a "blanket rule" that all political parties must pre- clear all of their "internal procedures." See post, at 250, 251. That characterization is quite inaccurate. We hold that political parties are covered under § 5 only in certain limited circumstances: here, only insofar as the Party exer- cises delegated power over the electoral process when it charges a fee for the right to vote for its candidates. It is Justice Kennedy who proposes the "blanket rule" that political parties are never covered under the Act, no matter what functions they perform and no matter what authority the State grants them. As we have explained, on that con- struction even situations involving blatant discrimination by political parties of the kind not seen since the White Primary Cases would fail to trigger the preclearance requirement. Justice Kennedy downplays the significance of this drastic limitation by arguing that voters who face electoral discrimination could sue under the Fifteenth Amendment. But lawsuits are no substitute for the preclearance require- ment; if they were, § 5 would be superfluous for governmen- tal units, too. As we have explained, the fundamental pur- pose of the preclearance system was to "shift the advantage of time and inertia from the perpetrators of the evil to its victims," South Carolina v. Katzenbach, 383 U. S., at 328, by declaring all changes in voting rules void until they are cleared by the Attorney General or by the District Court for the District of Columbia. Justice Kennedy's construc- tion would reimpose the very burden § 5 was designed to 517us1$38I 02-23-99 16:40:25 PAGES OPINPGT 226 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. relieve-the necessity of relying on "case-by-case litigation" to protect the right to vote. Ibid. Justice Kennedy argues that this would be a "much dif- ferent" case if the State "restructured its election laws in order to allow political parties the opportunity to practice unlawful discrimination in the nominating process." Post, at 252. On his view, however, without any restructuring at all, the Party could now take advantage of Virginia's present election laws to perform the same discriminatory acts. It is simply inaccurate, moreover, to claim that the State had undertaken such legislative efforts in each of the White Pri- mary Cases. The Jaybirds in Terry began discriminating against minority voters as early as 1889, and, as we have explained, they operated entirely outside the framework of Texas' electoral laws. Finally, it is highly counterintuitive to rely on cases such as Smith and Terry for the proposition that voters affected by discrimination should sue the State rather than the political party that carries it out, for those cases were actions against parties, not the State. What Justice Kennedy apparently finds most objection- able in our decision is the idea that political parties must seek preclearance from the Attorney General of the United States, because she is a "political officer," post, at 251. Pur- suant to § 5, the Attorney General is entrusted with the stat- utory duty of determining whether submitted changes have the purpose or will have the effect to discriminate. The suggestion implicit in Justice Kennedy's opinion, that we should avoid our construction of § 5 because the Attorney General might subvert her legal responsibility in order to harass a political party, is quite extraordinary and unsup- ported by even a shred of evidence. In any event, any politi- cal party distrustful of the Attorney General may seek pre- clearance under § 5 from the District Court for the District of Columbia. 517us1$38I 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 227 Opinion of Stevens, J. VII Appellees advance two practical objections to our inter- pretation of § 5: that it will create an administrative night- mare for political parties as well as the Department of Justice by requiring preclearance of a multitude of minor changes in party practices; and that it threatens to abridge associational rights protected by the First Amendment. Each of these objections merits a response. With respect to the first, it is important to emphasize the limitations spelled out in the Attorney General's regulation. To be subject to preclearance a change must be one "affect- ing voting." Examples of changes that are not covered in- clude "changes with respect to the recruitment of party members, the conduct of political campaigns, and the draft- ing of party platforms." 28 CFR § 51.7 (1995). The line be- tween changes that are covered and those that are not may be difficult to articulate in the abstract, but given the fact that the regulation has been in effect since 1981 and does not appear to have imposed any unmanageable burdens on covered jurisdictions, it seems likely that the administrative concerns described by the Party are more theoretical than practical.37 Indeed, past cases in which we were required to construe the Act evoked similar protestations that the ad- 37 This conclusion is buttressed by the fact that in most covered jurisdic- tions party candidates are selected in primary elections which are admit- tedly subject to the preclearance requirement. Apparently, Alabama and Virginia are the only two States covered by the Act that authorize the use of conventions to nominate candidates for statewide office. See Council of State Governments, Book of the States 217­218 (1994­1995 ed.). We also note that States may remove themselves from the special provi- sions of the Act, such as preclearance, by means of the bailout mechanisms provided in § 4. Several States and political subdivisions initially desig- nated for coverage have successfully availed themselves of these proce- dures. See, e. g., S. Rep. No. 94­295, p. 35 (1975) (citing bailouts by Alaska; Wake County, North Carolina; Elmore County, Idaho; and Apache, Navajo, and Coconino Counties, Arizona). 517us1$38I 02-23-99 16:40:26 PAGES OPINPGT 228 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. vocated construction would prove administratively unwork- able. See Dougherty County Bd. of Ed. v. White, 439 U. S., at 54 (Powell, J., dissenting); United States v. Sheffield Bd. of Comm'rs, 435 U. S., at 147­148 (Stevens, J., dissenting). Those fears were not borne out, and we think it no more likely that these will either. With respect to the second argument, we wholeheartedly agree with appellees that the right of association of members of a political party "is a basic constitutional freedom" and that "governmental action that may have the effect of cur- tailing freedom to associate is subject to the closest scru- tiny." Brief for Appellees 25 (citing Buckley v. Valeo, 424 U. S. 1 (1976), and NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958)). Such scrutiny, however, could not justify a major political party's decision to exclude eligible voters from the candidate selection process because of their race; the Fifteenth Amendment and our cases construing its appli- cation to political parties foreclose such a possibility. See Smith v. Allwright, 321 U. S., at 657 (rejecting argument that Democratic Party of Texas, as a private voluntary asso- ciation, could exclude black voters from its primary); Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 232 (1989) (justifying legislative "intervention" in inter- nal party affairs where "necessary to prevent the derogation of the civil rights of party adherents") (citing Smith). Moreover, appellees have not argued that the registration fee at issue in this case-which is challenged because it cur- tails the freedom of association of eligible voters arguably in conflict with the interests protected by the Twenty-fourth Amendment-is itself protected by the First Amendment. Rather, they have suggested that hypothetical cases unre- lated to the facts of this case might implicate First Amend- ment concerns that would foreclose application of the pre- clearance requirement. It is sufficient for us now to respond 517us1$38I 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 229 Opinion of Stevens, J. that we find no constitutional impediment to enforcing § 5 in the case before us.38 We leave consideration of hypothetical concerns for another day.39 38 We recognize that there is a narrow category of exceptional cases in which litigants "are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not be- fore the court to refrain from constitutionally protected speech or expres- sion." Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973). Because a claim of facial overbreadth, if successful, is such "strong medicine," the doctrine "has been employed by the Court sparingly and only as a last resort." Id., at 613. Specifically, as is the case with § 5 of the Voting Rights Act, "where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id., at 615. The breadth and importance of the legitimate sweep of § 5 have been demonstrated in a long and unbroken line of decisions applying its preclearance requirements to covered jurisdictions. Even among political parties, it is undisputed that the right of associative freedom would not provide a defense to many practices condemned by § 5. See Smith, 321 U. S., at 657; Eu, 489 U. S., at 232. Cf. Tashjian v. Republican Party of Conn., 479 U. S. 208, 237 (1986) (Scalia, J., dissenting) (the State "may lawfully require that significant elements of the democratic election proc- ess be democratic-whether the Party wants that or not"). Presumably that is why appellees have not argued that § 5 is invalid on its face. Un- like Justice Scalia, we do not believe that the possibility that some fu- ture application of the statute might violate the First Amendment justifies a departure from our "traditional rules governing constitutional adjudica- tion." 413 U. S., at 610. We also disagree with his assertion that the requirement that the Party preclear a change in practices that imposes a registration fee on voters seeking to participate in the nomination process is a "classic prior re- straint." It imposes no restraint at all on speech. Given the past history of discrimination that gave rise to the preclearance remedy imposed by § 5, the minimal burden on the right of association implicated in this case is unquestionably justified. 39 Relying on statements in appellees' brief, rather than anything in the record, Justice Thomas suggests that the registration fee was intended to avoid the danger that funding the convention with contributions from a few major donors would enable a small group of contributors to exercise 517us1$38I 02-23-99 16:40:26 PAGES OPINPGT 230 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. VIII The District Court dismissed appellants' claim under § 10 of the Act because that section only authorizes enforcement proceedings brought by the Attorney General and does not expressly mention private actions.40 While that ruling might have been correct if the Voting Rights Act had been enacted recently, it fails to give effect to our cases holding undue influence over the candidate selection process. See post, at 283. The argument is ironic, to say the least, given the evidence that the sup- porters of the successful candidate for the Party's nomination were willing to pay a delegate's registration fee in return for that delegate's vote. See App. 7­8 (Complaint ¶¶ 21­34). 40 As originally enacted, § 10 provided, in part: "Sec. 10. (a) The Congress finds that the requirement of the payment of a poll tax as a precondition to voting (i) precludes persons of limited means from voting or imposes unreasonable financial hardship upon such persons as a precondition to their exercise of the franchise, (ii) does not bear a reasonable relationship to any legitimate State interest in the con- duct of elections, and (iii) in some areas has the purpose or effect of deny- ing persons the right to vote because of race or color. Upon the basis of these findings, Congress declares that the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting. "(b) In the exercise of the powers of Congress under section 5 of the fourteenth amendment and section 2 of the fifteenth amendment, the At- torney General is authorized and directed to institute forthwith in the name of the United States such actions, including actions against States or political subdivisions, for declaratory judgment or injunctive relief against the enforcement of any requirement of the payment of a poll tax as a precondition to voting, or substitute therefor enacted after November 1, 1964, as will be necessary to implement the declaration of subsection (a) and the purposes of this section. "(c) The district courts of the United States shall have jurisdiction of such actions which shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hear- ing and determination thereof, and to cause the case to be in every way expedited." 79 Stat. 442. 517us1$38I 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 231 Opinion of Stevens, J. that our evaluation of congressional action "must take into account its contemporary legal context." Cannon v. Uni- versity of Chicago, 441 U. S. 677, 698­699 (1979); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 381 (1982). Our holding in Cannon, that Title IX of the Education Amendments of 1972 created a private right of action for victims of discrimination in education, relied heavily on the fact that during the 1960's the Court had consistently found such remedies notwithstanding the absence of an express di- rection from Congress. 441 U. S., at 698; see also id., at 718 (Rehnquist, J., concurring). Indeed, Cannon cited and re- lied on our earlier decision in Allen v. State Bd. of Elections, 393 U. S. 544 (1969), holding that private parties may enforce § 5 of the Voting Rights Act, to show that Congress acted against a "backdrop" of decisions in which implied causes of action were regularly found. See 441 U. S., at 698, and nn. 22­23. The Voting Rights Act itself was passed one year after this Court's decision in J. I. Case Co. v. Borak, 377 U. S. 426 (1964), which applied a highly liberal standard for finding private remedies. In Allen we made two observations about § 5 that apply as forcefully to § 10. We noted that "achievement of the Act's laudable goal could be severely hampered . . . if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General." 393 U. S., at 556. The same is surely true of § 10.41 Second, we attached signifi- cance to the fact that the Attorney General had urged us to find that private litigants may enforce the Act. Id., at 557, n. 23. The United States takes the same position in 41 In a footnote we observed that a private litigant could always bring suit under the Fifteenth Amendment, but it was the inadequacy of just those suits for securing the right to vote that prompted Congress to enact the statute. See 393 U. S., at 556, n. 21. Similarly with respect to a poll tax, the fact that a suit might be brought directly under the Twenty-fourth Amendment is not a reason for declining to find a statutory remedy. 517us1$38I 02-23-99 16:40:26 PAGES OPINPGT 232 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. this case. See Brief for United States as Amicus Curiae 25­27.42 Congress has not only ratified Allen's construction of § 5 in subsequent reenactments, see H. R. Rep. No. 91­397, p. 8 (1970), but extended its logic to other provisions of the Act. Although § 2, like § 5, provides no right to sue on its face, "the existence of the private right of action under Section 2 . . . has been clearly intended by Congress since 1965." S. Rep. No. 97­417, at 30 (citing Allen); see also H. R. Rep. No. 97­227, p. 32 (1981). We, in turn, have entertained cases brought by private litigants to enforce § 2. See, e. g., Chisom v. Roemer, 501 U. S. 380 (1991); Johnson v. De Grandy, 512 U. S. 997 (1994). It would be anomalous, to say the least, to hold that both § 2 and § 5 are enforceable by private action but § 10 is not, when all lack the same express authorizing language. Appellees argue that while § 5 creates substantive rights, § 10 merely directs the Attorney General to bring certain types of enforcement actions. Brief for Appellees 42­43. Exactly the same argument was made as to § 5 in Allen. But we held there that it was "unnecessary to reach the question" whether § 5 created new rights or only gave plain- tiffs new remedies to enforce existing rights, for "[h]owever the Act is viewed, the inquiry remains whether the right or 42 Justice Thomas attempts to distinguish § 5 and § 10 by arguing that the former describes a "particular class of persons" to be benefited while the latter does not. See post, at 287. Justice Thomas has it backwards. Section 5 states generically that "no person shall be denied the right to vote" by unprecleared changes. With far greater specificity, § 10 states that poll taxes preclude "persons of limited means" from voting or impose unreasonable financial hardships on them and "in some areas ha[ve] the purpose or effect of denying persons the right to vote because of race or color." 42 U. S. C. § 1973h(a). It also declares that "the constitutional right of citizens to vote is denied or abridged in some areas by the require- ment of the payment of a poll tax as a precondition to voting." Ibid. Section 10 was clearly designed to benefit a limited class of individuals. 517us1$38I 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 233 Opinion of Stevens, J. remedy has been conferred upon the private litigant." 43 393 U. S., at 556, n. 20. Even if it mattered whether § 10 created rights or remedies, the other provisions of the Act indicate that the antipoll tax provision established a right to vote without paying a fee.44 Furthermore, when Congress reenacted and extended the life of the Voting Rights Act in 1975, it recognized that pri- vate rights of action were equally available under § 10. Sec- tion 3, for example, originally provided for special proce- dures in any action brought "under any statute to enforce the guarantees of the fifteenth amendment" by the Attorney General. See 79 Stat. 437. In 1975, Congress amended that section to cover actions brought by "the Attorney Gen- eral or an aggrieved person." 42 U. S. C. § 1973a (1988 ed.) (emphasis added). The Senate Report explained that the purpose of the change was to provide the same remedies to private parties as had formerly been available to the Attor- ney General alone. See S. Rep. No. 94­295, pp. 39­40 (1975).45 Since § 10 is, by its terms, a statute designed for 43 We do not know, therefore, what Justice Thomas means when he describes § 5 as conferring a "statutory privilege" on a group of individu- als. See post, at 287. If that phrase refers to a "right," then Justice Thomas is flatly wrong, for Allen itself denies reaching that question. The "guarantee of § 5" to which Allen refers is simply its holding that individuals can sue under § 5. It is circular to rely on that conclusion to distinguish § 5 from § 10, for the question presented here is precisely whether this Court should apply the same logic to § 10. 44 See § 12(a) (prescribing sanctions for any deprivation or attempted deprivation of "any right secured by section . . . 1973h [§ 10]"), 42 U. S. C. § 1973j(a) (1988 ed.) (emphasis added); § 12(c) (prescribing sanctions for any conspiracy to interfere with "any right secured by section . . . 1973h [§ 10]"), 42 U. S. C. § 1973j(c) (1988 ed.) (emphasis added). 45 The Senate Report went on to explain more generally: "In enacting remedial legislation, Congress has regularly established a dual enforce- ment mechanism. It has, on the one hand, given enforcement responsibil- ity to a governmental agency, and on the other, has also provided remedies to private persons acting as a class or on their own behalf. The Commit- 517us1$38I 02-23-99 16:40:26 PAGES OPINPGT 234 MORSE v. REPUBLICAN PARTY OF VA. Opinion of Stevens, J. enforcement of the guarantees of the Fourteenth and Fif- teenth Amendments, see 42 U. S. C. § 1973h(b) (1988 ed.), Congress must have intended it to provide private remedies. The same logic applies to § 14(e), added in 1975, which allows attorney fees to be granted to "the prevailing party, other than the United States," in any action "to enforce the voting guarantees of the fourteenth or fifteenth amend- ment." 42 U. S. C. § 1973l(e) (1988 ed.) (emphasis added). Obviously, a private litigant is not the United States, and the Attorney General does not collect attorney's fees.46 Both this section and § 3 thus recognize the existence of a private right of action under § 10.47 Last, appellees argue that § 10 does not apply to the Par- ty's nominating convention because a delegate registration fee is not a poll tax. This argument addresses the merits rather than the right to sue. Without reaching the merits, the District Court dismissed appellants' claim because it held there was no private cause of action under § 10. Since we tee concludes that it is sound policy to authorize private remedies to assist the process of enforcing voting rights." S. Rep. No. 94­295, at 40. 46 The Senate Report states: "Such a provision is appropriate in voting rights cases because there, as in employment and public accomodations [sic] cases, and other civil rights cases, Congress depends heavily upon private citizens to enforce the fundamental rights involved. Fee awards are a necessary means of enabling private citizens to vindicate these Fed- eral rights." Ibid. 47 Appellees argue that any congressional action taken in 1975 cannot support the existence of an implied private right of action because this Court began applying a stricter test for implied rights in Cort v. Ash, 422 U. S. 66 (1975). We note that Cort was decided on June 17, 1975, while the amendments to the Act were passed on August 6 of the same year. Pub. L. 94­73, 89 Stat. 400. Seven weeks-in the context of a bill that was first proposed more than a year earlier-is scarcely enough time for Congress to take account of a change in the "contemporary legal context," especially one whose nature and impact were the subject of some dispute at the time. See Cannon v. University of Chicago, 441 U. S. 677, 739­743 (1979) (Powell, J., dissenting) (arguing that Cort relaxed the standards for finding implied rights of action). 517us1$38I 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 235 Breyer, J., concurring in judgment hold that this conclusion is incorrect, we postpone any con- sideration of the merits until after they have been addressed by the District Court.48 The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Breyer, with whom Justice O'Connor and Justice Souter join, concurring in the judgment. One historical fact makes it particularly difficult for me to accept the statutory and constitutional arguments of the ap- pellees. In 1965, to have read this Act as excluding all politi- cal party activity would have opened a loophole in the stat- ute the size of a mountain. And everybody knew it. They knew that, despite the enactment of the Fourteenth and Fif- teenth Amendments, African-Americans had been systemati- cally deprived of the right to vote in many places and for many years. They knew, too, that States had tried to main- tain that status quo through the "all-white" primary-a tac- tic that tried to avoid the Fifteenth Amendment by permit- ting white voters alone to select the "all-white" Democratic Party nominees, who were then virtually assured of victory in the general election. Once the Supreme Court held un- lawful the "all-white" primary, Smith v. Allwright, 321 U. S. 649 (1944), the obvious next step would have been to substi- tute an "all-white" preprimary Democratic Party nominating 48 Appellees make one final argument that this case is moot because the 1994 convention has already been held. We note, however, that the Party has not disavowed the practice of imposing a delegate filing fee for its nominating convention, nor has it returned the $45 collected from appel- lant Morse. Indeed, the Party has required fees as far back as 1964, and continues to assert that they are necessary to finance its conventions. Like other cases challenging electoral practices, therefore, this contro- versy is not moot because it is "capable of repetition, yet evading review." Anderson v. Celebrezze, 460 U. S., at 784, n. 3; Storer v. Brown, 415 U. S. 724, 737, n. 8 (1974); Moore v. Ogilvie, 394 U. S. 814, 816 (1969). 517us1$38Q 02-23-99 16:40:26 PAGES OPINPGT 236 MORSE v. REPUBLICAN PARTY OF VA. Breyer, J., concurring in judgment process for the "all-white" primary. And, indeed, that is just what happened, though the tactic failed because the Supreme Court held one version of it, the Jaybird Associa- tion straw poll, unconstitutional. Terry v. Adams, 345 U. S. 461 (1953). In 1965, Congress knew this history well, see, e. g., H. R. Rep. No. 439, 89th Cong., 1st Sess., pp. 6­22 (noting White Primary Cases and discussing failure of case-by-case enforce- ment of Fifteenth Amendment); S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3 (1965) (same); South Carolina v. Katzenbach, 383 U. S. 301, 308­315 (1966) (summarizing legislative his- tory), and it knew more besides. It knew that Mississippi had just sent to the Democratic National Convention an "all- white" delegation, selected in a process of party precinct meetings, caucuses, and conventions from which "Negroes" were excluded. See, e. g., Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judi- ciary, 89th Cong., 1st Sess., pp. 456­457 (1965) (testimony of Rep. Bingham) (hereafter H. R. 6400 Hearings). How is it possible that a Congress, knowing this obvious history, would have wanted to enact a "voting rights" law containing a major and obvious loophole that would allow such practices to continue, thereby threatening to destroy in practice the very promise of elementary fairness that the Act held out? The answer is that Congress did not want to enact a stat- ute with that loophole, and it did not do so. That is why Representative Bingham said, in offering the amendment that brought voting for "party office" within the Act, see 42 U. S. C. § 1973l(c)(1) (1988 ed.), that "to be most effective, [the Act] should include express coverage of party functions which directly, or indirectly, affect the primary or general elections in any State." H. R. 6400 Hearings, at 457. See also ibid. (explaining proposal as covering "political party meetings, councils, conventions, and referendums 517us1$38Q 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 237 Breyer, J., concurring in judgment which lead to endorsement or selection of candidates who will run in primary or general elections"). And it is why he told the full House of Representatives (after the Committee had accepted his amendment) that his change "would extend the protections of the bill to the type of situation which arose last year when the regular Demo- cratic delegation from Mississippi to the Democratic Na- tional Convention was chosen through a series of Party caucuses and conventions from which Negroes were excluded." 111 Cong. Rec. 16273 (1965). See also H. R. Rep. No. 439, supra, at 32. Representative Bingham's amendment, as the dissents point out, applies only to actions taken by "State or political subdivision." 42 U. S. C. § 1973c (1988 ed.). But that lan- guage did not automatically place a party's all-white evasive maneuvers beyond the statute's reach, because the Supreme Court had already held that the word "State" as it appears in the Fifteenth Amendment could constitutionally apply to certain activities of political parties, such as nominating ac- tivities. See Smith, supra, at 662­666; Terry, supra, at 473 (opinion of Frankfurter, J.) ("The application of the prohibi- tion of the Fifteenth Amendment to `any State' is translated by legal jargon to read `State action' "). The question before us is whether in 1965 Congress intended its words to place even a party's convention-based, all-white evasive maneu- vers beyond the statute's reach, thereby ignoring even the Mississippi Democratic Party's efforts the year before to use an "all-white" convention process to help nominate a candi- date for President of the United States. The answer to this question must be "no." In light of history-that of Jim Crow and that of the Act-one cannot understand Congress as having intended to endorse any such evasion. And that is as far as we need go to answer the statutory question presented by this case. 517us1$38Q 02-23-99 16:40:26 PAGES OPINPGT 238 MORSE v. REPUBLICAN PARTY OF VA. Breyer, J., concurring in judgment We need not go further in determining when party activi- ties are, in effect, substitutes for state nominating primaries because the case before us involves a nominating convention that resembles a primary about as closely as one could imag- ine. The convention (but for the $45 fee) was open to any voter declaring loyalty to the Republican Party of Virginia (Party), just like a primary. The Party itself had previously selected the primary method to choose its nominee (in 1990, the year of the immediately preceding United States Senate race, the Party canceled its scheduled primary when no can- didate filed to oppose the incumbent, App. 24), but changed its mind in 1994 without asking the Justice Department to "preclear" the switch. And the Party chose to avail itself of special state-law preferences, in terms of ballot access and position, offered to the convention's choice. Va. Code Ann. §§ 24.2­511(A), 535, 613 (1993). Nor need we go further to decide just which party nomi- nating convention practices fall within the scope of the Act. There are already substantial limits as to which voting- related "practices and procedures" must be precleared. See Presley v. Etowah County Comm'n, 502 U. S. 491, 502­503 (1992) (gathering cases and setting out four preclearance cat- egories: changes involving "the manner of voting[,] . . . candi- dacy requirements and qualifications[,] . . . the composition of the electorate that may vote[,] . . . [and] the creation or abolition of an elective office"). Thus, for example, the Party here states that besides nominating candidates, "other business at its conventions" includes "adoption of resolutions or platforms outlining the philosophy [of the Party]" and rules governing its internal operation. App. 24. Under Presley, these activities are very likely not subject to pre- clearance. See also 28 CFR § 51.7 (1995) (making clear that "changes with respect to the recruitment of party members, the conduct of political campaigns, and the drafting of party platforms are not subject to the preclearance requirement"). 517us1$38Q 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 239 Breyer, J., concurring in judgment I would note, moreover, that the lower courts have applied § 5 only to a small subcategory of party rules. See Haw- thorne v. Baker, 750 F. Supp. 1090, 1094­1095 (MD Ala. 1990) (three-judge court), vacated as moot, 499 U. S. 933 (1991); Fortune v. Kings County Democratic County Committee, 598 F. Supp. 761, 764­765 (EDNY 1984) (three-judge court) (per curiam); MacGuire v. Amos, 343 F. Supp. 119, 121 (MD Ala. 1972) (three-judge court) (per curiam). While these limitations exclude much party activity-in- cluding much that takes place at an assembly of its mem- bers-I recognize that some of the First Amendment con- cerns raised by the dissents may render these limits yet more restrictive in the case of party conventions. But the practice challenged here-the fee-lies within the Act, and well outside the area of greatest "associational" concern. Like the more obviously evasive "all-white" devices, it is of a kind that is the subject of a specific constitutional Amend- ment. U. S. Const., Amdt. 24, § 1 (banning poll tax). We go no further in this case because, as the dissents indi- cate, First Amendment questions about the extent to which the Federal Government, through preclearance procedures, can regulate the workings of a political party convention, are difficult ones, see, e. g., Eu v. San Francisco County Demo- cratic Central Comm., 489 U. S. 214 (1989), as are those about the limits imposed by the state-action cases. See Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991). Those questions, however, are properly left for a case that squarely presents them. Such questions, we are satisfied, are not so difficult as to warrant interpreting this Act as containing a loophole that Congress could not have intended to create. See, e. g., Terry v. Adams, 345 U. S. 461 (1953); Smith v. Allwright, 321 U. S. 649 (1944). See also Eu, supra, at 232 (recognizing that the First Amendment, while guaranteeing associational rights, does not bar "intervention . . . necessary to prevent the dero- 517us1$38Q 02-23-99 16:40:26 PAGES OPINPGT 240 MORSE v. REPUBLICAN PARTY OF VA. Breyer, J., concurring in judgment gation of the civil rights of party adherents"); Presley, supra, at 502­503 (setting out which voting-related practices are subject to preclearance); Brief for Appellees 6­7 (agreeing § 5 reaches certain primary-related party activity). An interpretation of §§ 5 and 14(c)(1), in light of the lan- guage, history, and purpose of the Act, sufficient to avoid that loophole is sufficient to answer the question presented here. In this case, I conclude that this Court has not de- cided the exact boundaries that the Constitution draws around the subcategory of party rules subject to § 5. Fur- ther definition should await another day. Finally, I agree with Justice Stevens that Congress must be taken to have intended to authorize a private right of action to enforce § 10 of the Act, 42 U. S. C. § 1973h (1988 ed.). He explains, ante, at 231­232, that the rationale of Allen v. State Bd. of Elections, 393 U. S. 544, 556­557 (1969) (Congress established private right of action to enforce § 5), applies with similar force not only to § 2 but also to § 10. Cf. S. Rep. No. 97­417, pt. 1, p. 30 (1982) (implied private right of action to enforce § 2 "has been clearly intended by Con- gress since 1965"). The differences in statutory language and structure between §§ 5 and 10 are not determinative. Ante, at 232. In addition, I do not know why Congress would have wanted to treat enforcement of § 10 differently from enforcement of §§ 2 and 5, particularly after 1975. In that year, Congress focused on § 10, deleted the then-obsolete § 10(d), made technical amendments to § 10(b), and thereby indicated its belief that § 10 remained an important civil rights provision. Pub. L. 94­73, § 408, 89 Stat. 405. See also S. Rep. No. 94­295, pp. 40­41 (1975) (reiterating general importance of private enforcement of Act); H. R. Report No. 94­196, pp. 33­34 (1975) (same). For these reasons, I believe Congress intended to establish a private right of action to enforce § 10, no less than it did to enforce §§ 2 and 5. I express no view as to the merits of the underlying § 10 claim. 517us1$38K 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 241 Scalia, J., dissenting Justice Scalia, with whom Justice Thomas joins, dissenting. "Any interference with the freedom of a party is simulta- neously an interference with the freedom of its adherents." Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957). For that reason, we have always treated government assertion of control over the internal affairs of political parties-which, after all, are simply groups of like-minded individual vot- ers-as a matter of the utmost constitutional consequence. See, e. g., Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 121­122 (1981); Cousins v. Wigoda, 419 U. S. 477, 487­488 (1975); O'Brien v. Brown, 409 U. S. 1, 4­5 (1972) (per curiam). What is at issue in this case, therefore, is not merely interpretation of § 5 of the Vot- ing Rights Act, 42 U. S. C. § 1973c, but, inextricably bound up with that interpretation, the First Amendment freedom of political association. There are several respects in which both Justice Ste- vens' opinion and Justice Breyer's opinion concurring in the judgment constitute remarkable departures from the set- tled course of our First Amendment jurisprudence. The most obvious, perhaps, is their refusal to consider the pres- ent application of § 5 unconstitutional on the basis of "hypo- thetical cases unrelated to the facts of this case [that] might implicate First Amendment concerns." Stevens, J., ante, at 228.1 Instead, they "leave consideration of hypothetical concerns for another day," ante, at 229, and reserve such "difficult" questions "for a case that squarely presents them," Breyer, J., ante, at 239. That is a luxury our precedents do not allow. It has been a constant of our free-speech juris- prudence that claimants whose First Amendment rights are affected may challenge a statute, not merely on the ground that its specific application to them is unconstitutional, but 1 For brevity's sake, I cite each of today's opinions by the name of its author. 517us1$38K 02-23-99 16:40:26 PAGES OPINPGT 242 MORSE v. REPUBLICAN PARTY OF VA. Scalia, J., dissenting also on the ground that its application is void in a substantial number of other contexts that arguably fall within its scope. This principle of "overbreadth" has been applied not only in the context of freedom of speech narrowly speaking, but also in the context of the freedom to associate for the purpose of political speech. See, e. g., United States v. Robel, 389 U. S. 258, 265­266 (1967); Elfbrandt v. Russell, 384 U. S. 11, 18­19 (1966). Thus, to satisfy oneself that the particular practice chal- lenged here lies "well outside the area of greatest `associa- tional' concern," Breyer, J., ante, at 239, is to take only the first and smallest step in treating the weighty constitutional question posed by application of § 5 to political parties. In this First Amendment context, to "go no further than neces- sary to decide the case at hand" means going far enough to assure against overbreadth. We must do that whenever "rights of association [are] ensnared in statutes which, by their broad sweep, might result in burdening innocent associ- ations." Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973) (citing, inter alia, Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967)). Justice Stevens does not assert that applying § 5 to party activity passes First Amendment muster except "in the case before us," ante, at 229, and Justice Breyer acknowledges that the First Amendment may bar application of § 5 to other convention activity, see ante, at 239. Yet despite these indications of overbreadth, neither opinion attempts to provide what our cases require: a "limiting construction or partial invalida- tion" that will "remove the seeming threat or deterrence to constitutionally protected expression," Broadrick, supra, at 613. Besides flouting the doctrine of overbreadth, the opinions' refusal to provide "[f]urther definition" of § 5's application to political parties, Breyer, J., ante, at 240, leaves political par- ties without guidance as to "when [their] activities are, in effect, substitutes for state nominating primaries," ante, at 517us1$38K 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 243 Scalia, J., dissenting 238, and as to "which party nominating convention practices fall within the scope of the Act," ibid.2 Before today, this Court has not tolerated such uncertainty in rules bearing upon First Amendment activities, because it causes persons to refrain from engaging in constitutionally protected con- duct for fear of violation. See, e. g., Baggett v. Bullitt, 377 U. S. 360, 372 (1964). Surely such an effect can be expected here. Party officials will at least abstain from proceeding with certain convention activities without notification; and in light of the high degree of uncertainty they may well decide to hold no conventions at all. Another respect in which the Court today diverges from our free-speech jurisprudence is even more astounding, if possible, than its disregard of the doctrines of overbreadth and vagueness. From reading the majority's two opinions, one would surmise that the only constitutional question at issue is whether the First Amendment permits the Federal Government to make unlawful and set aside party rule changes designed to hinder racial minorities' full participa- tion in election-related functions. But this statute does not present only that question, any more than a statute estab- lishing a Board of Obscenity Censors, to which films or books must be submitted for approval before publication, presents only the question whether the First Amendment permits the prohibition of obscenity. See, e. g., Freedman v. Maryland, 2 Justice Breyer apparently thinks that the First Amendment con- cerns raised by appellees are minimal because many activities engaged in by a party at its convention "are very likely not subject to preclearance." Ante, at 238. Of course, a mere "very likelihood" that failure to preclear a particular activity will not result in nullification of the work of the con- vention is hardly sufficient to induce a party organizer to take the chance. In any event, I find curious the proposition that certain subsidiary deter- minations of the convention, such as " `adoption of resolutions or platforms outlining the philosophy [of the Party],' " ibid., are not subject to Govern- ment oversight, whereas the determination of who may attend the conven- tion-upon which all else depends-is subject to Government oversight. That is a good bargain for the tyrant. 517us1$38K 02-23-99 16:40:26 PAGES OPINPGT 244 MORSE v. REPUBLICAN PARTY OF VA. Scalia, J., dissenting 380 U. S. 51 (1965); Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963). A point entirely ignored by Justices Stevens and Breyer is that this case involves a classic prior restraint. Our cases have heavily disfavored all manner of prior re- straint upon the exercise of freedoms guaranteed by the First Amendment. Although most often imposed upon speech, prior restraints are no less noxious, and have been no less condemned, when directed against associational lib- erty (with which, we have said, freedom of speech "overlap[s] and blend[s]," Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 300 (1981)). See Thomas v. Collins, 323 U. S. 516, 539­540 (1945); Carroll v. President and Comm'rs of Princess Anne, 393 U. S. 175, 180­185 (1968); cf. Healy v. James, 408 U. S. 169, 184 (1972). Today, however, a majority of the Court readily accepts the proposition that § 5 can subject this First Amendment free- dom to a permit system, requiring its exercise to be "pre- cleared" with the Government even when it is not being used unlawfully. The Court thus makes citizens supplicants in the exercise of their First Amendment rights. As the five Justices who support the judgment of the Court choose to read this statute, a political party (or at least one that the State has awarded a place on the ballot 3) can make no change in its practices or procedures that might affect a voter's capacity to have his candidate elected-no 3 Justice Stevens makes much of the fact that the nominee selected by the Republican Party of Virginia, by reason of the outcome of prior elections, had automatically been given a place on the primary ballot, see ante, at 195­199, but he also explains his interpretation of § 5 as "fol- low[ing] directly from our decision in Terry [v. Adams, 345 U. S. 461 (1953)]," ante, at 215, a case in which the private party's nominating elec- tion "did not involve the State's electoral apparatus in even the slightest way," ibid. Justice Breyer alludes to Virginia's election laws, see ante, at 238, but they are plainly incidental to his analysis, see ante, at 235­239. So one must assume that what the Court today holds for parties whose nominees are automatically listed is true for other parties as well. 517us1$38K 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 245 Scalia, J., dissenting matter how race neutral in purpose and effect-unless it first obtains prior clearance by the Government, see Ste- vens, J., ante, at 203­207; Breyer, J., ante, at 237­239. Any change not precleared-after a proceeding in which the burden rests on the party to show absence of discriminatory purpose and effect, see City of Rome v. United States, 446 U. S. 156, 172­173, 183, n. 18 (1980)-can be enjoined. Given that political parties are organized with the near-exclusive purpose of influencing the outcomes of elections, I think it obvious that as construed today, § 5 requires political parties to submit for prior Government approval, and bear the bur- den of justifying, virtually every decision of consequence re- garding their internal operations. That is the most outra- geous tyranny. A freedom of political association that must await the Government's favorable response to a "Mother, may I?" is no freedom of political association at all. There would be reason enough for astonishment and re- gret if today's judgment upheld a statute clearly imposing a prior restraint upon private, First Amendment conduct. But what makes today's action astonishing and regrettable beyond belief is that this Court itself is the architect of a prior restraint that the law does not clearly express. And here is yet another respect in which today's opinions ignore established law: their total disregard of the doctrine that, where ambiguity exists, statutes should be construed to avoid substantial constitutional questions. That has been our practice because we presume that "Congress, which also has sworn to protect the Constitution, would intend to err on the side of fundamental constitutional liberties when its legislation implicates those liberties." Regan v. Time, Inc., 468 U. S. 641, 697 (1984) (Stevens, J., concurring in judg- ment in part and dissenting in part). We have in the past relied upon this canon to construe statutes narrowly, so as not to impose suspect prior restraints. For example, in Lowe v. SEC, 472 U. S. 181 (1985), we held that a statute requiring all "investment advisors" to register with the 517us1$38K 02-23-99 16:40:26 PAGES OPINPGT 246 MORSE v. REPUBLICAN PARTY OF VA. Scalia, J., dissenting Securities and Exchange Commission, see 15 U. S. C. § 80b­3, does not extend to persons who publish "nonpersonalized" investment advice such as periodic market commentary- thereby avoiding the question whether Congress could con- stitutionally require such persons to register. Lowe, supra, at 190, 204­205, and n. 50. How insignificant that prior re- straint when compared with the requirement for preclear- ance of all changes in self-governance by political parties. What drives a majority of the Court to find a prior re- straint where the text does not demand (or even suggest) it is the notion that it "strains credulity" to think that Con- gress would enact a Voting Rights Act that did not reach political-party activity, Stevens, J., ante, at 217. Congress, the majority believes, "could not have intended" such a re- sult, Breyer, J., ante, at 239. I doubt the validity of that perception; the assumption it rests upon-that a legislature never adopts half-way measures, never attacks the easy part of a problem without attacking the more sensitive part as well-seems to me quite false. Indeed, the one-step-at-a- time doctrine that we regularly employ in equal protection cases is based on precisely the opposite assumption. See, e. g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488­489 (1955). Moreover, even if one were to accept the majority's question-begging assumption that Congress must have cov- ered political-party activity, and even if one were to credit their sole textual support for such coverage, today's decision to impose a prior restraint upon purely private, political- party activity would still be incomprehensible. The sole textual support adduced by the two opinions consists of § 14's reference to elections for "party office," and § 2's reference to "the political processes leading to nomination or election." See Stevens, J., ante, at 207­209; Breyer, J., ante, at 236­ 237. Justice Thomas gives compelling reasons why these phrases cannot bear the meaning the majority would ascribe, see post, at 277­282. But even accepting that they mean 517us1$38K 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 247 Kennedy, J., dissenting what Justices Stevens and Breyer say, all that the phrase in § 14 shows is that some portion of the Act reaches private, political-party conduct; and all that the phrase in § 2 shows is that (at least in some circumstances) § 2 does so. Nothing in the text, nor anything in the assumption that Congress must have addressed political-party activity, com- pels the conclusion that Congress addressed political-party activity in the preclearance, prior-restraint scheme of § 5,4 which is of course the only question immediately before us. Thus, the only real credulity strainer involved here is the notion that Congress would impose a restraint bearing a "heavy presumption against its constitutional validity," Ban- tam Books, 372 U. S., at 70, in such a backhanded fashion- saying simply "State[s]" and "political subdivision[s]" in § 5, but meaning political parties as well. Because I find that impossible to believe, I respectfully dissent. Justice Kennedy, with whom The Chief Justice joins, dissenting. I join Part II of Justice Thomas' dissent, which demon- strates that § 10 of the Voting Rights Act, 42 U. S. C. § 1973h (1988 ed.), does not create a private right of action, post, at 286­289. With respect to § 5 of the Act, § 1973c, this statutory con- struction case does not require us to explore the full reach 4 The Court majority would respond, perhaps, that the phrase "State or political subdivision" in § 5 should be read to have the same meaning that it has in § 2. Of course it normally should. But if the majority fancies itself confronted with the choice between departing from that general rule of construction (which, like all rules of construction, can be overcome by other indication of statutory intent, see, e. g., Helvering v. Stockholms En- skilda Bank, 293 U. S. 84, 86­88 (1934)) and violating the inflexible princi- ple that courts should not needlessly interpret a statute to impose a prior restraint upon private political activity, it is not debatable where the out- come must lie. Of course, the imagined conflict between the rule and the principle disappears if "State or political subdivision" is given its natural meaning in both § 5 and § 2, subjecting political parties to neither. 517us1$38L 02-23-99 16:40:26 PAGES OPINPGT 248 MORSE v. REPUBLICAN PARTY OF VA. Kennedy, J., dissenting of Congress' substantial power to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments. Cf., e. g., City of Rome v. United States, 446 U. S. 156, 173­182 (1980). Nor does it present the question whether the rule of attribution we have adopted in the state-action cases would, of its own force and without statutory implementation, extend the guarantees of the Equal Protection Clause to these appel- lants. The state-action doctrine and case authorities such as Smith v. Allwright, 321 U. S. 649 (1944), and Terry v. Adams, 345 U. S. 461 (1953), may be of considerable rele- vance to equal protection or other constitutional challenges still pending before the District Court, see ante, at 191­192 (opinion of Stevens, J.), but those matters need not be dis- cussed here. It would be unwise to do so; for, with full rec- ognition of the vital doctrine that Smith, Terry, and kindred cases elaborate when we confront discrimination in the par- ticipatory processes that are the foundation of a democratic society, we have been cautious to preserve the line separat- ing state action from private behavior that is beyond the Constitution's own reach. " `Careful adherence to the "state action" requirement preserves an area of individual freedom by limiting the reach of federal law' and avoids the imposi- tion of responsibility on a State for conduct it could not con- trol." National Collegiate Athletic Assn. v. Tarkanian, 488 U. S. 179, 191 (1988), quoting Lugar v. Edmondson Oil Co., 457 U. S. 922, 936­937 (1982). It is "unnecessary to traverse that difficult terrain in the present case," Lebron v. National Railroad Passenger Cor- poration, 513 U. S. 374, 378 (1995), because § 5 of the Voting Rights Act does not reach all entities or individuals who might be considered the State for constitutional purposes. Congress was aware of the difference between the State as a political, governing body and other actors whose conduct might be subject to constitutional challenge or the congres- sional enforcement power, and intended § 5 to reach only the former. Justice Thomas explains why § 5, both by its 517us1$38L 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 249 Kennedy, J., dissenting terms and with the gloss placed on it in United States v. Sheffield Bd. of Comm'rs, 435 U. S. 110 (1978), does not reach the Republican Party of Virginia's actions. Post, at 254­263. Furthermore, Congress demonstrated its ability to distin- guish between the State and other actors in the text of the Act itself. Section 11 of the Act makes it unlawful for any "person acting under color of law" to "fail or refuse to permit any person to vote who is entitled to vote under" specified provisions of the Act, or to "willfully fail or refuse to tabu- late, count, and report such person's vote," 42 U. S. C. § 1973i(a), and also provides that "[n]o person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce . . . any person for voting or attempting to vote," § 1973i(b). In the context of the Civil Rights Act of 1871, Rev. Stat. § 1979, 42 U. S. C. § 1983 (1988 ed.), which uses similar lan- guage to describe the class of individuals subject to its reach ("[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State"), we have said " `under color' of law has consistently been treated as the same thing as the `state action' required under the Four- teenth Amendment." United States v. Price, 383 U. S. 787, 794, n. 7 (1966). See also Lugar v. Edmondson Oil Co., supra, at 929; Rendell-Baker v. Kohn, 457 U. S. 830, 838 (1982); West v. Atkins, 487 U. S. 42, 49 (1988); National Col- legiate Athletic Assn. v. Tarkanian, supra, at 182, n. 4; Hafer v. Melo, 502 U. S. 21, 28 (1991). There is no apparent reason why the "under color of law" requirement of § 11 should not also be considered coterminous with the state- action requirement of the Amendment that statute enforces, and we should infer from Congress' employment of that re- quirement an intent to distinguish between the State and those other actors to whom governmental status must be imputed in some instances, cf. Gustafson v. Alloyd Co., 513 U. S. 561, 568 (1995) (elementary canon of statutory construc- tion to give a term a "consistent meaning throughout the 517us1$38L 02-23-99 16:40:26 PAGES OPINPGT 250 MORSE v. REPUBLICAN PARTY OF VA. Kennedy, J., dissenting Act"). Congress knows the difference between regulating States and other actors, and in § 5 chose only to regulate the States. The First Amendment questions presented by governmen- tal intrusion into political party functions are a further rea- son for caution before we adopt a blanket rule that preclear- ance is required on the theory that when Congress used the word "State" it also meant "political party." Sensitive con- sideration of the rights of speech and association counsels much restraint before finding that a political party is a state actor for purposes of all preclearance requirements. In par- ticular, we have called for circumspection in drawing the state-action line where political parties and their roles in se- lecting representative leaders are concerned. See Cousins v. Wigoda, 419 U. S. 477, 483, n. 4 (1975) (reserving ques- tion whether national political party's selection of delegates to nominating convention amounts to state action). See also id., at 492­494 (Rehnquist, J., concurring in result); O'Brien v. Brown, 409 U. S. 1, 4­5 (1972) (per curiam) (stay- ing order that political party seat certain delegates at its national convention and expressing "grave doubts" about Court of Appeals' action in case raising "[h]ighly important" state-action question); Republican State Central Comm. of Ariz. v. Ripon Society Inc., 409 U. S. 1222, 1226­1227 (1972) (Rehnquist, J., in chambers); Ripon Society, Inc. v. Na- tional Republican Party, 525 F. 2d 567, 574­576 (1975) (en banc), cert. denied, 424 U. S. 933 (1976). Notwithstanding the terse dismissals of these concerns in the opinions that support today's judgment, ante, at 228­229 (opinion of Stevens, J.); ante, at 239 (Breyer, J., concurring in judgment), we have recognized before now the important First Amendment values that attach to a political party's "freedom to identify the people who constitute the associa- tion, and to limit the association to those people only." Democratic Party of United States v. Wisconsin ex rel. La 517us1$38L 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 251 Kennedy, J., dissenting Follette, 450 U. S. 107, 122 (1981). These concerns would provide a sound basis for construing an ambiguous reference to the term "State" to avoid constitutional difficulties. See Miller v. Johnson, 515 U. S. 900, 924­928 (1995) (refusing to defer to Attorney General's interpretation of § 5 that raised equal protection concerns). Cf. Gregory v. Ashcroft, 501 U. S. 452, 460­464 (1991) (adopting plain statement rule with respect to statutory ambiguity that implicates Tenth Amend- ment concerns). Given the absence of any ambiguity in the statutory text before us, there is no basis for a grasping and implausible construction of the Act that brings these consti- tutional problems to the fore. We are well advised to remember that Congress, too, can contribute in drawing the fine distinctions required in the balancing of associational and participatory rights. Cf. United States v. Lopez, 514 U. S. 549, 577 (1995) (Kennedy, J., concurring) ("[I]t would be mistaken and mischievous for the political branches to forget that the sworn obligation to preserve and protect the Constitution in maintaining the fed- eral balance is their own in the first and primary instance"). No such fine distinctions were attempted, I would submit, in this statute; if anything "strains credulity," ante, at 217 (opinion of Stevens, J.), it is that Congress meant to include the Democratic and Republican Parties when it used the simple word "State" in the Voting Rights Act. The opinions supporting the judgment express concern that cases like Smith and Terry would not be covered by the Voting Rights Act were the interpretation adopted today to be rejected. To begin with, of course, we should note that the Voting Rights Act was not needed to invalidate the dis- crimination that occurred in those cases. The Constitution of its own force did that. What we confront here, instead, is a statutory scheme in which entities seeking preclearance must ask a political officer (the Attorney General of the United States) for permission to change various internal pro- cedures. It is a far reach to suppose that Congress required 517us1$38L 02-23-99 16:40:26 PAGES OPINPGT 252 MORSE v. REPUBLICAN PARTY OF VA. Kennedy, J., dissenting this for ordinary party processes. The White Primary Cases involved ever-increasing efforts on the part of the State itself to camouflage discrimination in the guise of party activity. See ante, at 211­213 (opinion of Stevens, J.). There is no claim in this case that the Commonwealth's stat- utory policy of allowing the Republican Party (and any other political party that receives at least 10 percent of the vote in either of two preceding elections) the option to nominate by primary or convention, Va. Code Ann. § 24.2­509 (1993), is void on account of the Commonwealth's failure to preclear that policy in accordance with the requirements of § 5. Rather, the argument embraced today is that the Party itself acted in violation of § 5 by failing to preclear the $45 regis- tration fee. We would face a much different case if a State, without first seeking § 5 preclearance, restructured its elec- tion laws in order to allow political parties the opportunity to practice unlawful discrimination in the nominating proc- ess. If, as seems likely, such a change constituted a "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964," 42 U. S. C. § 1973c, § 5 would require preclearance by the State. For this reason, appellants' counsel overstated the matter by arguing that if Congress intended to reach only States qua States, and not political parties, "the Voting Rights Act would have been strangled at its birth." Tr. of Oral Arg. 12. Although Congress enacted § 5 to counteract the notorious history of attempts to evade the guarantees of equal treat- ment in voting, South Carolina v. Katzenbach, 383 U. S. 301, 327­328 (1966), that history does not give us license to ex- pand the Act's coverage beyond the boundaries of the statu- tory text, Presley v. Etowah County Comm'n, 502 U. S. 491, 509 (1992). I would adhere to that text, which reflects a decided intent on Congress' part to reach governmental, not private, entities. With respect, I dissent. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 253 Thomas, J., dissenting Justice Thomas, with whom The Chief Justice and Justice Scalia join, and with whom Justice Kennedy joins as to Part II, dissenting. Two discrete questions of statutory interpretation control appellants' claim under § 5 of the Voting Rights Act: whether the Republican Party of Virginia is a "State or political sub- division" and, if so, whether the fee imposed upon its conven- tioneers constitutes a procedure "with respect to voting." 42 U. S. C. § 1973c. The plain meaning of the Voting Rights Act mandates a negative answer to both of these questions. The text of the Act also forecloses the availability of a pri- vate cause of action under § 10. I therefore dissent. I A Section 5 declares that, "[w]henever a State or political subdivision . . . shall enact or seek to administer" any change with respect to voting, it may not institute that change absent preclearance. 42 U. S. C. § 1973c (emphasis added). Only when a "State or political subdivision" promulgates new voting rules is § 5 even arguably implicated. See United States v. Sheffield Bd. of Comm'rs, 435 U. S. 110, 141 (1978) (Stevens, J., dissenting) ("As a starting point, it is clear that [§ 5] applies only to actions taken by two types of political units-States or political subdivisions"). Thus, the first issue to be decided here is whether the Republican Party of Virginia is the type of entity that must comply with the preclearance requirement of § 5. Justice Stevens does not directly address this threshold question of pure statutory interpretation. He begins with the Attorney General's regulation, rather than with the text of § 5 itself. Cf. Norfolk & Western R. Co. v. Train Dis- patchers, 499 U. S. 117, 128 (1991) ("As always, we begin with the language of the statute and ask whether Congress has 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 254 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting spoken on the subject before us"). In my opinion, the Re- publican Party of Virginia is not a "State or political subdivi- sion" within the meaning of § 5, and that statute is therefore not triggered in this case. 1 The Voting Rights Act provides no definition of the term "State." When words in a statute are not otherwise de- fined, it is fundamental that they "will be interpreted as tak- ing their ordinary, contemporary, common meaning." Per- rin v. United States, 444 U. S. 37, 42 (1979). The ordinary meaning of the word "State" does not encompass a partisan group such as the Republican Party of Virginia. Rather, that word-particularly when capitalized-is generally un- derstood to mean one of the 50 constituent States of the Union. See Webster's New International Dictionary 2461 (2d ed. 1957) (defining "State" as "any body of people occupy- ing a definite territory and politically organized under one government, esp. one that is a sovereign, or not subject to external control; . . . Cf. commonwealth"). Indeed, it nearly belabors the point to explain that, in common par- lance, "State" normally refers to a geographical unit of the United States, such as California or Massachusetts. Our own opinions in § 5 cases use the word in this natural fashion. See, e. g., United States v. Sheffield Bd. of Comm'rs, supra, at 113 (§ 5 "requires that States, like Alabama," preclear new voting rules) (emphasis added); Hadnott v. Amos, 394 U. S. 358, 365­366 (1969) (§ 5 "provides that whenever States like Alabama seek to administer" voting changes, they must preclear) (emphasis added). Even Justice Stevens em- ploys "State" in its usual sense. See ante, at 193 ("Virginia is one of the seven States to which the § 4 coverage formula was found applicable . . . . The entire Commonwealth has been subject to the preclearance obligation of § 5 ever since") (emphasis added). That the statutory term "State" should be applied in light of its ordinary meaning is reinforced by the Act's definition 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 255 Thomas, J., dissenting of the term "political subdivision." Section 14(c)(2) states that " `political subdivision' shall mean any county or parish," with certain exceptions not relevant here. 42 U. S. C. § 1973l(c)(2). As appellants' counsel explained at oral argu- ment, the phrase "political subdivision" refers to "particular geographic regions" within a State, such as New York's Westchester County. Tr. of Oral Arg. 15­16. See also United States v. Sheffield Bd. of Comm'rs, supra, at 128, n. 15 (§ 14(c)(2) "obviously refer[s] to a geographic territory, and the usages of `political subdivision' in the Act and the legislative history leave no doubt but that it is in this sense that Congress used the term").1 Given that limited under- standing of "political subdivision," it would be odd indeed if the term "State," which immediately precedes "political subdivision," did not have an analogous meaning. The terms "State" and "political subdivision" should both be con- strued to refer solely to the various territorial divisions within a larger unit of territorially defined government. There is further statutory evidence to support this inter- pretation of "State." The Act elsewhere speaks of the "territory" of a State or political subdivision. See, e. g., § 1973b(a)(1)(F) (referring to "such State or political subdivi- sion and all governmental units within its territory") (em- phasis added). Political parties, of course, are made up not of land, but of people. It is nonsensical to talk of things existing "within [the] territory" of a political party. Also, the definitional section of the Voting Rights Act Amend- ments of 1970, Pub. L. 91­285, 84 Stat. 316, indicates that Congress uses the word "State" in voting rights statutes to 1 There is thus no colorable argument in this case that the Party is a "political subdivision" within the meaning of § 14(c)(2); it is not a geo- graphic territory, such as a "county or parish," within a State. Appellants assert no such claim, apparently in recognition of the weakness of the argument. If the Party falls under § 5, it could only be because it is a "State" or state actor, as appellants and the United States maintain. See infra, at 264. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 256 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting connote geographic territories, not political parties. See 42 U. S. C. § 1973aa­1(h) (defining, for purposes of § 202 of the Extension Act, "[t]he term `State' " as "each of the several States and the District of Columbia"). A State, of course, cannot "enact or seek to administer" laws without resort to its governmental units. § 1973c. A State necessarily operates through its legislative, executive, and judicial bodies. When the legislature passes a law, or an administrative agency issues a policy directive, official ac- tion has unquestionably been taken in the name of the State. Accordingly, voting changes administered by such entities have been governed consistently by § 5. See, e. g., Allen v. State Bd. of Elections, 393 U. S. 544 (1969) (requiring pre- clearance of amendments to Mississippi Code enacted by state legislature and bulletin distributed by Virginia Board of Elections). See also United States v. Saint Landry Par- ish School Bd., 601 F. 2d 859, 864, n. 8 (CA5 1979) ("The cases uniformly speak of § 5 as applying to `enactments,' `leg- islation,' `regulations,' and `laws'-all actions taken by the governmental authority of state"). Unlike the Virginia Gen- eral Assembly, however, the Republican Party of Virginia is not an organ of the State through which the State must con- duct its affairs, and the Party has no authority to formulate state law. The Party's promulgations thus cannot be within § 5's reach of "any state enactment which alter[s] the election law of a covered State." Allen v. State Bd. of Elections, supra, at 566 (quoted ante, at 204). Although Justice Stevens points to past preclearance submissions as evidence that § 5 covers political parties, ante, at 200­201, n. 18, those submissions are largely irrelevant to the meaning of § 5. It should come as no surprise that once the Attorney General promulgated a regulation expressly covering political parties, 28 CFR § 51.7 (effective Jan. 5, 1981), some of those organizations requested preclearance and the Justice Department processed their requests. Tell- ingly, Justice Stevens is able to cite only a handful of party 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 257 Thomas, J., dissenting submissions that predate the Attorney General's regulation.2 This fact confirms what common sense instructs: Most people who read § 5 simply would not think that the word "State" embraces political parties. This commonsense understand- ing also explains why virtually every one of this Court's § 5 cases has involved a challenge to, or a request for ap- proval of, action undertaken by a State or a unit of state government.3 2 Justice Stevens has discovered five instances of such party submis- sions. See ante, at 200­201, n. 18. Per year, however, at least several thousand preclearance requests are sent to the Attorney General. See, e. g., Annual Report of the Attorney General 161 (1982) ("During the year, over 2,800 submissions involving more than 13,300 voting-related changes were submitted to the Attorney General under Section 5"); Annual Report of the Attorney General 131 (1986) ("During fiscal year 1986, over 3,700 submissions involving more than 20,000 changes were submitted to the Attorney General under Section 5"). 3 See Presley v. Etowah County Comm'n, 502 U. S. 491 (1992); Clark v. Roemer, 500 U. S. 646 (1991); Pleasant Grove v. United States, 479 U. S. 462 (1987); McCain v. Lybrand, 465 U. S. 236 (1984); NAACP v. Hampton County Election Comm'n, 470 U. S. 166 (1985); City of Lockhart v. United States, 460 U. S. 125 (1983); Port Arthur v. United States, 459 U. S. 159 (1982); Hathorn v. Lovorn, 457 U. S. 255 (1982); Blanding v. DuBose, 454 U. S. 393 (1982); McDaniel v. Sanchez, 452 U. S. 130 (1981); City of Rome v. United States, 446 U. S. 156 (1980); Dougherty County Bd. of Ed. v. White, 439 U. S. 32 (1978); Berry v. Doles, 438 U. S. 190 (1978); United States v. Sheffield Bd. of Comm'rs, 435 U. S. 110 (1978); Morris v. Gres- sette, 432 U. S. 491 (1977); United States v. Board of Supervisors of War- ren Cty., 429 U. S. 642 (1977); Beer v. United States, 425 U. S. 130 (1976); Richmond v. United States, 422 U. S. 358 (1975); Connor v. Waller, 421 U. S. 656 (1975); Georgia v. United States, 411 U. S. 526 (1973); Perkins v. Matthews, 400 U. S. 379 (1971); Hadnott v. Amos, 394 U. S. 358 (1969); Allen v. State Bd. of Elections, 393 U. S. 544 (1969). See also Arizona v. Reno, 887 F. Supp. 318 (DDC), appeal dism'd, 516 U. S. 1155 (1996). Over the last 30 years, we have entertained only two § 5 cases brought against political parties. We vacated one when it became moot on appeal, State Democratic Executive Committee of Alabama v. Hawthorne, 499 U. S. 933 (1991), and summarily affirmed the denial of relief in the other. Williams v. Democratic Party of Georgia, Civ. Action No. 16286 (ND Ga., Apr. 6, 1972), aff'd, 409 U. S. 809 (1972). 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 258 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting In light of the plain meaning of the phrase "State or politi- cal subdivision," I see no reason to defer to the Attorney General's regulation interpreting that statute to cover politi- cal parties. See 28 CFR § 51.7 (1995). Though the Party has not challenged the validity of the regulation, it hardly follows that this Court is bound to accept it as authoritative. We defer to the Attorney General on statutory matters within her authority "only if Congress has not expressed its intent with respect to the question, and then only if the ad- ministrative interpretation is reasonable." Presley v. Eto- wah County Comm'n, 502 U. S. 491, 508 (1992). As ex- plained, § 5 on its face resolves the question whether political parties are subject to the preclearance rule of § 5: A political party is simply not a "State," regardless of the particular activity in which it might be engaging. Congress has con- veyed its intent to limit § 5 to the States themselves and their political subdivisions. Accordingly, the regulation warrants no judicial deference. Cf. id., at 508­509 (declining to defer to Attorney General's construction of § 5).4 My reading of § 5 is squarely supported by our only prece- dent on the applicability of § 5 to political parties, Williams v. Democratic Party of Georgia, Civ. Action No. 16286 (ND Ga., Apr. 6, 1972), aff'd, 409 U. S. 809 (1972). Williams held, as a matter of "statutory construction," Civ. Action No. 16286, at 5, that § 5 does not apply to political parties. The District Court stated that "[t]he Act does not refer to actions by political parties but refers to actions by a `State or politi- cal subdivision.' " Id., at 4. Though the District Court be- 4 Justice Stevens contends that the foregoing discussion is "surprising because [his] explanation of why § 5 applies to political parties places no reliance on principles of administrative deference." Ante, at 222. By presupposing that the regulation is a valid interpretation of § 5, however, Justice Stevens simply assumes that § 5 could cover political parties. Thus, he does not just defer to the Attorney General's reading of § 5, but displaces § 5 with the regulation. Cf. Presley v. Etowah County Comm'n, supra, at 508 ("Deference does not mean acquiescence"). For the reasons given above, I would not do the same. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 259 Thomas, J., dissenting lieved, based on legislative history, that Congress probably meant to include the election of party delegates under the Act, the court felt itself bound by the fact that § 5 addresses only actions of the State. This limitation was further evi- denced, in the court's view, by § 5's provision that preclear- ance be sought by "the chief legal officer or other appro- priate official of such State or subdivision." 42 U. S. C. § 1973c. The District Court concluded that the State itself had "no connection" with the delegate selection process other than providing for the public filing of the rules for se- lection, and that, though the action of the Party might be "state action" in the constitutional sense, § 5 could not be read so broadly. Civ. Action No. 16286, at 5. Essential to the judgment of the District Court in Williams was the hold- ing that § 5 does not encompass political parties. The af- firmance of that holding, which is entitled to precedential weight, is instructive here.5 Contrary to the suggestion of Justice Stevens, United States v. Sheffield Bd. of Comm'rs, 435 U. S. 110 (1978), does not support the contention that the Republican Party of Vir- ginia is subject to § 5. See ante, at 204, 219. The precise question presented in that case was whether § 5 required the city of Sheffield, Alabama, to preclear a voting change. The 5 Justice Stevens' attempt to distinguish, and even to draw support from, Williams is unpersuasive. See ante, at 201­203. The fact that Vir- ginia grants ballot access to the Party's nominee in this case does not establish state involvement in the nominating convention. In holding its convention, the Party exercised no state-delegated power. See infra, at 269­276. Further, Justice Stevens mischaracterizes Williams when he declares that the "only" reason that the District Court did not require preclearance was because no adequate administrative procedures existed; the Williams court noted that the lack of such procedures buttressed its premise that § 5 applies only to States and political subdivisions. Civ. Action No. 16286, at 4. Finally, 28 CFR § 51.23(b) (1995), which now pro- vides that party officials may submit rules for preclearance, cannot change the language of § 5, which is still limited, as it was at the time Williams was decided, to States and political subdivisions. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 260 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting controversy arose because § 14(c)(2) of the Act defines "politi- cal subdivision" as a county or parish, "except that where registration for voting is not conducted under the supervi- sion of a county or parish, the term shall include any other subdivision of a State which conducts registration for vot- ing." 42 U. S. C. § 1973l(c)(2). Notwithstanding the facts that the city was not a county or parish and that it did not register voters, the Court concluded that the city was sub- ject to the preclearance requirement of § 5. The essence of Sheffield's rationale was that because the entire State of Ala- bama was designated for coverage pursuant to § 4(b), the city of Sheffield was covered by § 5 because it was a "political unit" (though not a "political subdivision") within Alabama. 435 U. S., at 127­128. Whether or not Sheffield was correct as an original matter, it stands, at most, for the proposition that a local unit of government, like a city, may be considered the "State" for purposes of § 5: "[Section] 5 . . . applies territorially and in- cludes political units like Sheffield whether or not they con- duct voter registration." Id., at 130. In accordance with that proposition, we have applied Sheffield to find coverage of other types of governmental bodies under § 5. See, e. g., Dougherty County Bd. of Ed. v. White, 439 U. S. 32, 45 (1978) (finding § 5 coverage of county school board under Sheffield and noting that "[i]f only those governmental units with of- ficial electoral obligations actuate the preclearance require- ments of § 5," the purposes of the Act could be undermined) (emphasis added). But we have never applied Sheffield to find a nongovernmental organization to be within the scope of § 5. This is because Sheffield says little about the ques- tion whether a group that does not operate in the name of the State, or in the name of any governmental unit of a State, must comply with § 5. If anything, Sheffield suggests, with respect to this case, that a political party is not so obligated, because a political party is quite plainly neither a territorial 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 261 Thomas, J., dissenting division of a State nor a governmental unit acting on behalf of any such territory. Undoubtedly, Sheffield speaks in broad terms when it states that § 5 "applies to all entities having power over any aspect of the electoral process within designated jurisdic- tions, not only to counties or to whatever units of state gov- ernment perform the function of registering voters." 435 U. S., at 118 (quoted ante, at 204, 220). That language must be viewed in the context of the case, however. The holding of Sheffield applies only to governmental bodies within a State-i. e., cities, counties, or municipalities, and their agen- cies-not to private groups with a partisan, or "political," agenda. See, e. g., Sheffield, 435 U. S., at 117 ("We first con- sider whether Congress intended to exclude from § 5 cover- age political units, like Sheffield, which have never con- ducted voter registration"); id., at 124 ("Congress could not have intended § 5's duties to apply only to those cities that register voters"); ibid. ("local political entities like Sheffield" can impair minority votes in ways other than registration) (all emphases added). In the legislative history Sheffield cites as support for its holding that "political units" are cov- ered regardless of whether they register voters, every entity mentioned is a governmental one. See id., at 133­134 (cities; school districts; city councils; precincts; county districts; and municipalities). There is no basis in Sheffield and its prog- eny for covering nongovernmental entities under § 5. Nonetheless, there is a critical similarity between this case and Sheffield. Just as in Sheffield, a majority of the Court has inflated the phrase "State or political subdivision" to im- plausible proportions. The dissent in Sheffield warned that "the logistical and administrative problems inherent in re- viewing all voting changes of all political units strongly sug- gest that Congress placed limits on the preclearance require- ment." Id., at 147 (Stevens, J., dissenting). Today, the Justices that support the judgment go much further and re- 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 262 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting quire all "established" political parties, ante, at 219, in desig- nated States to preclear all changes " `affecting voting,' " ante, at 227. See also ante, at 238 (Breyer, J.) (suggesting that political groups that receive state-law preferences in ac- cess to, and placement on, the ballot must preclear "voting- related" changes). As the Solicitor General candidly ac- knowledged, an "affecting-voting" or "voting-related" rule cannot be limited to practices administered at conventions; it logically extends to practices at all local mass meetings that precede conventions. See Brief for United States as Amicus Curiae 20, n. 11. And almost all activity that oc- curs at a nominating convention theoretically affects voting; indeed, Justice Stevens is unable to articulate any prin- cipled dividing line between that which does and does not relate to voting at a convention. See ante, at 227. Thus, today's decision will increase exponentially the number of preclearance requests, for even the most innocuous changes, that the Attorney General must process within a statutorily limited amount of time. See 42 U. S. C. § 1973c (60 days). "[I]t is certainly reasonable to believe that Congress, having placed a strict time limit on the Attorney General's consider- ation of submissions, also deliberately placed a limit on the number and importance of the submissions themselves. This result was achieved by restricting the reach of § 5 to enactments of either the States themselves or their political subdivisions." Sheffield, supra, at 148 (Stevens, J., dis- senting). That the inclusion of political parties under § 5 de- means the preclearance regime and so drastically increases its scope substantially undermines the possibility that Con- gress intended parties to preclear. Without so much as a nod to the explicit "State or political subdivision" limitation in § 5, Justice Stevens substitutes the administrative regulation as the analytical starting point in this case. See ante, at 194­195. He apparently does so because the Party failed to challenge the regulation and its counsel stated at oral argument that § 5 could sometimes en- compass political parties. See ante, at 194­195, 220, n. 32, 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 263 Thomas, J., dissenting 222­223, n. 35. We did not take this case to review the Dis- trict Court's application of the regulation based on the facts of this case, but to decide whether "[§ ]5 of the Voting Rights Act of 1965 require[s] preclearance of a political party's deci- sion . . . to impose" a fee on conventiongoers. Juris. State- ment i. Consequently, appellants and the Government ar- gued that the Party was covered as a "State" under § 5, see n. 7, infra, and the Party maintained that § 5 "requires action by a State or political subdivision." Brief for Appellees 29. See also id., at 30 ("A political party is not a subdivision or instrumentality of the government [under Sheffield]"). Jus- tice Stevens and Justice Breyer address the question presented, however, only in the course of dismissing the dissents' arguments, and after they reach their respective conclusions. Furthermore, the tactical or legal error of a litigant cannot define the meaning of a federal statute. See generally Sibron v. New York, 392 U. S. 40 (1968). Our duty is to read the statute for ourselves. While the regulation may "unam- biguously provid[e] that . . . a political party" must preclear, ante, at 194 (opinion of Stevens, J.), the statute does nothing of the sort, regardless of any submission by the Party. Ac- cordingly, I would decide this case on the ground that the Republican Party of Virginia is not a "State" in the ordinary sense of the word. Its rules and policies should therefore not be subject to § 5.6 6 Justice Stevens rejects this reading of § 5 as being "at war with the intent of Congress and with our settled interpretation of the Act." Ante, at 220. First, as explained supra, at 256­258, and n. 3, 258­261, there is no precedent for the application of § 5 to nongovernmental units; the issue is anything but "settled." Justice Stevens errs when he states that "[t]he operative test, we have stated repeatedly, is whether a political party exercises power over the electoral process." Ante, at 218. We have never made any such statement, because we have never before ad- dressed the question whether political parties are subject to § 5. Second, Justice Stevens cites only legislative history as evidence of Congress' "unambiguously expressed . . . purpose" that § 5 should apply to the "candi- date selection process." Ante, at 224. Section 5, of course, could apply in 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 264 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting 2 To the limited extent that Justice Stevens and Justice Breyer address the triggering language in § 5, they fail to explain adequately how it is that the Party could qualify as a "State or political subdivision" under the Act. By refer- ring to the White Primary Cases, however, they reveal the only conceivable basis in law for deeming the acts of the Party to be those of the State: the doctrine of state action, as developed under the Fourteenth and Fifteenth Amend- ments.7 In attempting to establish the relevance of that the context of the "candidate selection process," if the State itself enacted or sought to administer the contested change. But Justice Stevens points to nothing in § 5, or even in that statute's legislative history, that expresses any intent to include political parties within the meaning of "State or political subdivision." Finally, it is perfectly reasonable to suppose that the term "State" has a different meaning in § 5 than it does in the Fifteenth Amendment. Cf. ante, at 221. This Court has affirmed in other contexts that statutory language does not necessarily mean the same thing as parallel language in the Constitution. For instance, "[a]l- though the language of [28 U. S. C. § 1331 (1982 ed.)] parallels that of the `Arising Under' Clause of Article III, this Court never has held that statu- tory `arising under' jurisdiction is identical to Art. III `arising under' juris- diction." Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 494 (1983). Here, the ordinary-meaning rule of statutory construction, which governs the interpretation of § 5, explains why political parties could be covered under the Fifteenth Amendment, but not under § 5: The common- sense definition of "State" is very different from the complex doctrine of state action that this Court has developed as a matter of constitutional law. 7 In fact, the Government identified our state-action cases under the Fif- teenth Amendment as the justification for the Attorney General's regula- tion on which Justice Stevens bases his judgment. Brief for United States as Amicus Curiae 10­11. Review of the regulation confirms that it is premised upon the notion that the Party's activities can sometimes be treated as those of the State. See 28 CFR § 51.7 (1995) (referring to "public electoral function" carried out by parties and to parties "act- ing under authority explicitly or implicitly granted by a covered juris- diction"). Likewise, appellants relied solely on state-action theory as their rationale for bringing the Party within § 5. See Brief for Appellants 14­20, 24­25. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 265 Thomas, J., dissenting constitutional doctrine to this statutory case, more by repeti- tion than analysis, both opinions suggest that the meaning of the statutory term "State" in § 5 is necessarily coterminous with the constitutional doctrine of state action. See, ante, at 199­200, 210­219, 221 (opinion of Stevens, J.); ante, at 235­237 (Breyer, J., concurring in judgment). I cannot agree. The text of § 5 does not support this constitutional gloss. There is a marked contrast between the language of § 5 and other federal statutes that we have read to be coextensive with the constitutional doctrine of state action. Specifically, 42 U. S. C. § 1983 has been accorded a reach equivalent to that of the Fourteenth Amendment. See Lugar v. Edmond- son Oil Co., 457 U. S. 922, 934­935 (1982); United States v. Price, 383 U. S. 787, 794, n. 7 (1966). That statute provides a cause of action against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State" deprives any citizen of federal constitutional or stat- utory rights. 42 U. S. C. § 1983. Section 1983's coverage reasonably extends beyond official enactments of the State, since it expressly provides for coverage of persons who act under authority of the State. If Congress intended to incor- porate state-action doctrine into § 5, one would expect § 5 to read more like § 1983. That is, it might require preclearance "whenever a State or political subdivision or any person act- ing under color of State law" seeks to enact voting changes.8 But § 5 does not read like § 1983. 8 Justice Stevens argues that this example does not by its terms cover political parties. See ante, at 221­222, n. 34. The criticism is beside the point, however, because the example is not intended to demonstrate how Congress could have covered political parties as such; that, of course, could be easily achieved by inserting "political parties" in the opening clause of § 5. Instead, the example is meant to emphasize that there is no textual basis for the conclusion that Congress imported the constitutional doctrine of state action into § 5. Because there is no evidence that Congress did so, Justice Stevens, as well as Justice Breyer, is wrong to use state- action doctrine as license to read "State" to mean "political party." 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 266 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting The Voting Rights Act does, in fact, contain precisely such language in a different section. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the dispar- ate inclusion or exclusion." Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted). Sec- tion 11(a) of the Act provides that "[n]o person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of [the Voting Rights Act and supplemental provisions] or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person's vote." 42 U. S. C. § 1973i(a) (em- phasis added). See also § 1973i(b) ("No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote") (empha- sis added). These provisions of the Act account for the very possibility that seems to motivate the Court's strained inter- pretation of § 5: that persons acting individually or as part of a group, as opposed to States or political subdivisions through their governmental bodies, will interfere with the right to vote. I would not, therefore, accept the proposition that the constitutional doctrine of state action defines the breadth of the statutory term "State." Given the clarity of the word "State," together with the facts that Congress has tradition- ally encompassed the broad category of state action by using the phrase "under color of law," and has done so in other parts of this very Act, it is evident that Congress did not mean to incorporate state-action doctrine in § 5. 3 Even indulging the argument that § 5's coverage extends to all activity that qualifies as state action for constitutional purposes, the Court's further assumption that the actions of 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 267 Thomas, J., dissenting the Party in this case are fairly attributable to the State is irreconcilable with our state-action precedents.9 Justice Stevens and Justice Breyer are correct to suggest that, under the White Primary Cases-most notably Smith v. Allwright, 321 U. S. 649 (1944), and Terry v. Adams, 345 U. S. 461 (1953)-political parties may sometimes be characterized as state actors. Where they err, however, is in failing to recognize that the state-action principle of those cases "does not reach to all forms of private political activ- ity." Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 158 (1978). Rather, it "encompasses only state-regulated elections or elections conducted by organizations which in practice produce `the uncontested choice of public officials.' " Ibid. (quoting Terry, supra, at 484 (Clark, J., concurring)). Thus, the White Primary Cases do not stand for the categorical rule that political parties are state actors, but only for the proposition that, in limited factual circumstances, a particu- lar political party may be deemed an agent of the State. This case is not governed by the state-action principle enunciated in either Smith or Terry. Unlike the primary in Smith, the Republican Party of Virginia's convention was not a " `state-regulated electio[n]' " to which the doctrine of state action extends. Flagg Bros., Inc. v. Brooks, supra, at 158. As an initial matter, it is important to recognize that Smith is on its face limited to primary elections. That is, Smith requires a sufficient degree of state regulation that "the party which is required to follow these legislative directions [is made] an agency of the State in so far as it determines the participants in a primary election." 321 U. S., at 663 9 Although Justice Stevens and Justice Breyer never expressly ac- knowledge their reliance on state-action theory, each finds it necessary to look to that case law for support. See ante, at 199­200, 210­219, 221; ante, at 235­237. Indeed, Justice Stevens' discussion of whether the Party acted under the Commonwealth of Virginia's authority in holding the convention is virtually indistinguishable from state-action analysis. See ante, at 194­200. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 268 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting (emphasis added). In this case, the Party played no role in determining the participants in an election-whether pri- mary, general, or special-but required persons who wished to attend its convention to pay a fee. But, even assuming that the reasoning of Smith applies to conventions as well as actual elections, there is still insuffi- cient state regulation in this case to find that "the party . . . [is] an agency of the State." Ibid. In Smith, the party was compelled by statute to hold a primary and was subject to myriad laws governing the primary from start to finish. See id., at 653, n. 6, 662­663. By comparison, the amount and burden of the state regulation in this case pale. Appel- lants point to only two provisions of the Virginia Code that directly regulate nominating conventions. Section 24.2­510 imposes certain deadlines for the nomination of candidates by methods other than a primary. Va. Code. Ann. § 24.2­510 (1993). And once a candidate is selected, § 24.2­511 requires that the party chairman certify the candidate to the State Board of Elections. Ibid. While § 24.2­509 permits parties to choose their own method of nomination, it is a purely per- missive, not a mandatory, provision; the party is not "re- quired to follow [this] legislative directio[n]." Smith v. All- wright, 321 U. S., at 663. There exists no "statutory system for the selection of party nominees for inclusion on the gen- eral election ballot," ibid.; there are only a few relatively minor statutory requirements. In other words, when the party holds its convention to select a candidate, it is party, not state, machinery that is put in gear. Cf. United States v. Classic, 313 U. S. 299, 318 (1941).10 10 While Justice Stevens believes that the decision in Smith did not depend at all upon state regulation of primaries, ante, at 199­200, and n. 17, Smith is by its terms premised upon the existence of a "statutory system." See Smith v. Allwright, 321 U. S. 649, 662­664 (1944) (detailing state law relating to primaries and concluding that the "statutory system" in Texas for the selection of party nominees "makes the party which is required to follow these legislative directions an agency of the State"). See also Terry v. Adams, 345 U. S. 461, 462 (1953) ("While no state law directed [the] exclusion [of blacks from the party's primary], our decision 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 269 Thomas, J., dissenting Nor does coverage of the Party in this case "follo[w] di- rectly from . . . Terry." Ante, at 215 (opinion of Stevens, J.). The three separate opinions that constituted the major- ity in that case contain little analysis of the state-action ques- tion, and there was certainly no theory of state action upon which the majority agreed. See Flagg Bros., Inc. v. Brooks, supra, at 158, and n. 6. Consequently, the holding in Terry has since been rationalized in light of two unique factual predicates: (1) a candidate selection system that foreordained the winner of the general election; and (2) the participation of the State in the intentional evasion of the Constitution for the purpose of discrimination. See Edmonson v. Leesville Concrete Co., 500 U. S. 614, 625 (1991) ("The Jaybird candi- date was certain to win the Democratic primary and the Democratic candidate was certain to win the general elec- tion"); Mobile v. Bolden, 446 U. S. 55, 64 (1980) (explaining Terry on grounds that "[t]he candidates chosen in the Jaybird primary . . . invariably won in the subsequent Democratic primary and in the general election" and that "there was agreement that the State was involved in the purposeful ex- clusion of Negroes from participation in the election proc- ess"). The nub of Terry was that the Jaybird primary was the de facto general election and that Texas consciously per- mitted it to serve as such; thus, the exclusion of blacks from that event violated the Fifteenth Amendment. This case involves neither of the operative premises of Terry. First, there is no hint of state involvement in any purposeful evasion of the Constitution. No one-not the lit- igants, the Government, or the court below-has so much as suggested that the Party, in concert with the State, held a convention rather than a primary in order to avoid the con- stitutional ban on race-based discrimination. Nor has any- one implied that the Party had any intent to discriminate on the basis of race when it decided to charge a fee to cover [in Smith] pointed out that many party activities were subject to consider- able statutory control"). 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 270 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting the costs of the convention.11 Second, it simply cannot be maintained that exclusion from the Party's 1994 convention was tantamount to exclusion from the general election. The fact that the Party's 1994 nominee for the United States Senate lost the general election is proof enough that the modern-day Republican Party in Virginia does not have the stranglehold on the political process that the Democratic Party of Texas had in the 1940's.12 In short, this case is a far cry from Terry, and it does not fall within the bounds of state action delineated, albeit none too clearly, by Terry.13 In any event, subsequent decisions of this Court have "carefully defined" the scope of Smith and Terry. Flagg Bros., Inc. v. Brooks, 436 U. S., at 158. As we have refined 11 It is true, as Justice Stevens states, that potential for discrimina- tion is the prevailing test for preclearance under § 5. See ante, at 216­217, and n. 29. But that is a different question from whether the Party's con- duct rises to the level of state action under Terry, the issue I address here. 12 Justice Stevens claims that, under United States v. Classic, 313 U. S. 299 (1941), "[v]oting at the nomination stage is protected regardless of whether it `invariably, sometimes or never determines the ultimate choice of the representative.' " Ante, at 218. Classic did not so hold. Even assuming that Classic applies to conventions as well as primaries, that case merely stated, in dicta, that "where the primary is by law made an integral part of the election machinery," 313 U. S., at 318, the right to participate in a primary does not turn upon the dispositive nature of the primary. Party nominating conventions in Virginia have not been merged by law with the election machinery of the State. See supra, at 269 and this page. Contrary to what Justice Stevens says, ante, at 218­219, n. 31, the petition procedure at issue in Moore v. Ogilvie, 394 U. S. 814 (1969), was by law made a part of the State's electoral system: It was expressly mandated by state statute. See id., at 815 (citing Ill. Rev. Stat., c. 46, § 10­3 (1967)). 13 In light of Smith and Terry, Justice Breyer concludes that the word "State" does not "automatically place a party's all-white evasive maneu- vers beyond [§ 5's] reach." Ante, at 237 (emphasis deleted). That, how- ever, is not this case. As discussed above, there is no basis in fact for inferring that the Party charged the fee as a strategy for producing an " `all-white' convention process" or as a method of evading the Constitu- tion. Ibid. And the record in no way suggests that the three law stu- dents challenging the fee are black. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 271 Thomas, J., dissenting our state-action jurisprudence, the White Primary Cases have come to stand for a relatively limited principle. When political parties discharge functions "traditionally per- formed" by and " `exclusively reserved to' " government, their actions are fairly attributable to the State. Ibid. (quoting Jackson v. Metropolitan Edison Co., 419 U. S. 345, 352 (1974)). See Edmonson v. Leesville Concrete Co., supra, at 621 (citing Terry as a case in which "the actor is perform- ing a traditional governmental function"); Lugar v. Edmond- son Oil Co., 457 U. S., at 939 (citing Terry as illustration of "the `public function' test"). In Terry, the Jaybirds per- formed the traditional and exclusive state function of con- ducting what was, in effect, the actual election. In applying the public function test, "our holdings have made clear that the relevant question is not simply whether a private group is serving a `public function.' " Rendell- Baker v. Kohn, 457 U. S. 830, 842 (1982) (citation omitted). Instead, "[w]e have held that the question is whether the function performed has been `traditionally the exclusive pre- rogative of the State.' " Ibid. As Justice O'Connor ex- plained the White Primary Cases, "the government func- tions in these cases had one thing in common: exclusivity." Edmonson v. Leesville Concrete Co., 500 U. S., at 640 (dis- senting opinion). Thus, in order to constitute state action under the public function test, "private conduct must not only comprise something that the government traditionally does, but something that only the government traditionally does." Ibid. The Party's selection of a candidate at the convention does not satisfy that test. As we stated in Flagg Bros., Inc. v. Brooks, "the Constitution protects private rights of associa- tion and advocacy with regard to the election of public offi- cials" and it is only "the conduct of the elections themselves [that] is an exclusively public function." 436 U. S., at 158 (citing Terry). Thus, we have carefully distinguished the "conduct" of an election by the State from the exercise of 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 272 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting private political rights within that state-created framework. Providing an orderly and fair process for the selection of public officers is a classic exclusive state function. As the Constitution itself evidences, the organization of the elec- toral process has been carried out by States since the found- ing: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." U. S. Const., Art. I, § 4, cl. 1. By contrast, convening the members of a political associa- tion in order to select the person who can best represent and advance the group's goals is not, and historically never has been, the province of the State-much less its exclusive province. The selection of a party candidate is not the type of function, such as eminent domain, that is "traditionally associated with sovereignty." Jackson v. Metropolitan Edi- son Co., supra, at 353. Cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 545 (1987) (holding that United States Olympic Committee is not a state actor because "[n]either the conduct nor the coordina- tion of amateur sports has been a traditional governmental function"); Blum v. Yaretsky, 457 U. S. 991, 1011­1012 (1982) (holding that nursing home is not a state actor in part be- cause provision of nursing home services is not a traditional and exclusive sovereign function); Edmonson v. Leesville Concrete Co., supra, at 638­641 (O'Connor, J., dissenting) (arguing that exercise of peremptory strikes by litigants in state court is not a government function but a matter of private choice). Though States often limit ballot access to persons who are official party nominees or who meet the requirements for independent candidates, see, e. g., Storer v. Brown, 415 U. S. 724 (1974), no State to my knowledge has ever held a convention in order to designate a political party's nominee for public office. Indeed, it would subvert the very purpose of democracy if the State possessed sole control over the identification of candidates for elective office. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 273 Thomas, J., dissenting I therefore fail to see how the selection of a party's candi- date for United States Senator is a public electoral function. Cf. ante, at 194­195 (opinion of Stevens, J.).14 In asking whether the Party acted under authority of the State in selecting its nominee at the convention, the Court emphasizes that Virginia automatically grants ballot access to the nominees of political parties, as defined by statute. See ante, at 195­198; ante, at 238 (Breyer, J., concurring in judgment). It does not follow from that fact, however, that "the Party exercised delegated state power when it certified its nominee for automatic placement on Virginia's general election ballot." Ante, at 195 (opinion of Stevens, J.). The formulation of rules for deciding which individuals enjoy suf- ficient public support to warrant placement on the ballot, and the actual placement of those candidates on the ballot, are indeed part of the traditional power of the States to manage elections. See Burdick v. Takushi, 504 U. S. 428, 433 (1992). But these criteria are established exclusively and definitively by the State of Virginia-not the Party-in the Virginia Code. See Va. Code Ann. §§ 24.2­101, 24.2­511 (1993) (pro- viding ballot access for certified nominees of organizations of Virginia citizens that receive, in either of the last two state- wide general elections, at least 10 percent of the total votes cast). Justice Stevens is flatly wrong when he asserts that political parties in Virginia "are effectively granted the power to enact their own qualifications for placement of can- didates on the ballot." Ante, at 197. Also, it is the Com- monwealth of Virginia, not the Party itself, that has elimi- nated the Party's need to present a petition in support of its candidate. Cf. ante, at 197­198; Va. Code Ann. § 24.2­511(D) (1993) ("No further notice of candidacy or petition shall be 14 Contrary to the representation of Justice Stevens, ante, at 194­195, the Party explicitly denies that it engaged in any public electoral function. See Brief for Appellees 30 ("The Virginia statutes cited by the law stu- dents do not show the exercise of public electoral functions . . . by the Party"). 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 274 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting required of a candidate once the party chairman has certified his name to the State Board [of Elections]"). The Party has no control over the qualifications that determine "who may appear on the ballot." Ante, at 198. What the Party does determine is something entirely dis- tinct from the rules for ballot access, but which the Court fails to distinguish: the identity of the person who shall be entitled under state law, as the Party's nominee, to place- ment on the ballot by the State. In making that determina- tion, the Party sets the "qualifications" necessary for the se- lection of its candidate. Though the Court conflates these two sets of criteria, the Party's standards for choosing its candidate are wholly separate from the State's standards for ballot access, as set forth in §§ 24.2­101 and 24.2­511 of the Virginia Code. When the Party picks a candidate according to its own partisan criteria, it does not act on behalf of the State. Whatever the reason the Party chooses its nominee, "it is not the government's reason." Edmonson v. Leesville Concrete Co., 500 U. S., at 638 (O'Connor, J., dissenting). In sum, the selection of a party nominee "forms no part of the government's responsibility" in regulating an election. Id., at 639. To be sure, the Party takes advantage of favorable state law when it certifies its candidate for automatic placement on the ballot. See ante, at 195­197, and n. 13 (opinion of Stevens, J.); ante, at 238 (Breyer, J., concurring in judg- ment). Nevertheless, according to our state-action cases, that is no basis for treating the Party as the State. The State's conferral of benefits upon an entity-even so great a benefit as monopoly status-is insufficient to convert the en- tity into a state actor. See Jackson v. Metropolitan Edison, 419 U. S., at 351­352.15 If appellants believe that the State 15 On Justice Stevens' and Justice Breyer's view of the relationship between automatic ballot placement and state action, many private corpo- rations in Virginia would qualify as state actors. Virginia corporations 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 275 Thomas, J., dissenting has created an unfair electoral system by granting parties automatic access to the ballot, the proper course of action is to bring suit against the appropriate state official and chal- lenge the ballot-access statute itself, see, e. g., Burdick v. Ta- kushi, supra, not to bring a preclearance suit against the Party and contest the registration fee. If the State sought to enact or administer a law limiting ballot access to only one group, as Justice Stevens repeatedly hypothesizes, see, e. g., ante, at 223, state action would most likely exist, and that law would be subject to § 5 and those provisions of the Constitution that impose restrictions on the States. As for the point that Virginia allows the Party to choose its method of nomination, that fact does not warrant a finding of state action either. We have made it clear that an organi- zation's "exercise of the choice allowed by state law where the initiative comes from it and not from the State, does not make its action in doing so `state action.' " Jackson v. Met- ropolitan Edison, supra, at 357. Thus, when the Party ex- ercised the choice afforded it by state law and opted to hold a convention, that decision did not amount to state action. The Party did not take the initiative to make that choice in order to serve the public interest; in reality, the selection of a nomination method is an intensely political matter, as recent are, like most corporations, substantially advantaged by various provi- sions of state law. See, e. g., Va. Code Ann. §§ 13.1­692.1, 13.1­870.1 (1993) (creating a limitation on liability for corporate officers and directors). I doubt seriously, however, that even the Members of today's majority would hold that when a corporation takes the necessary steps to invoke these statutory benefits, it thereby becomes a state actor; yet this is the logical result of the suggestion that the Party is a state actor because Virginia automatically places its nominee on the ballot. Such a conclusion would run headfirst into our case law, in which we have stated unequivo- cally that privately owned corporations, absent some symbiotic relation- ship with the State, are purely private actors. See Jackson v. Metropoli- tan Edison, 419 U. S., at 357­358; Blum v. Yaretsky, 457 U. S. 991, 1011 (1982). 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 276 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting intra-Party disputes over that choice well illustrate.16 Even if, as might be said here, "[t]he government erects the plat- form" upon which a private group acts, the government "does not thereby become responsible for all that occurs upon it." Edmonson v. Leesville Concrete Co., supra, at 632 (O'Connor, J., dissenting).17 The basis for today's decision, which subjects a political party to the requirements of § 5, can only be state-action doc- trine. But treating the Party as an agent of the State in this case is not only wrong as a matter of statutory interpre- tation, it also squarely contravenes our state-action prece- dents. In short, there is no legal justification-statutory, constitutional, or otherwise-for the conclusion that the Party is an entity governed by § 5.18 16 See Editorial, Primarily Primaries, Richmond Times-Dispatch, Nov. 28, 1995, p. A­8 (describing contentious debate between supporters of the incumbent Virginia Senator and those of his Republican challenger over nomination methods and noting that "[i]t is only human for sides to favor the means-convention or primary-perceived to give their candidate an edge"). 17 With respect to Congress' power to prohibit discrimination in party affairs, see ante, at 223­224, it is enough for purposes of this case to note that it is well established that Congress may not regulate purely private behavior pursuant to its enforcement power under the Fourteenth and Fifteenth Amendments. See James v. Bowman, 190 U. S. 127, 139 (1903) ("[A] statute which purports to punish purely individual action cannot be sustained as an appropriate exercise of the power conferred by the Fif- teenth Amendment upon Congress to prevent action by the State through some one or more of its official representatives"); Civil Rights Cases, 109 U. S. 3 (1883). 18 Indeed, Justice Breyer's concurrence is founded on little more than sheer disbelief that Congress passed a statute that does not go as far in terms of coverage as he thinks, in light of the history of voting rights, the statute should. See ante, at 236 ("How is it possible that a Congress, knowing this obvious history, would have wanted to enact a `voting rights' law containing a major and obvious loophole . . ."). We are not free to construe statutes by wondering about what Congress "would have wanted to enact." There are myriad reasons why measures that "a Congress"-I assume Justice Breyer means a majority of the Members 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 277 Thomas, J., dissenting B Assuming, arguendo, that the Republican Party of Vir- ginia is a "State" within either the ordinary or the constitu- tional sense of the word, the question remains whether the Party has sought to administer a practice or procedure with respect to "voting." Based on the statutory definition of "voting," I conclude that the registration fee is not the type of election-related change with which the Act concerns itself. Section 14 of the Act defines voting as "all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to . . . casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candi- dates for public or party office." 42 U. S. C. § 1973l(c)(1). There is no mention of conventions. Because § 14 specifi- cally enumerates the types of elections covered, but does not of that institution-might "wan[t] to enact" never become law. We must look to the extant text of the statute and see what Congress has in fact, and not in theory, enacted. In contrast to Justice Breyer's imaginary statute, which covers all actors that might discriminate in the electoral process, § 5 is in reality limited to States and political subdivisions. Thus, the question in this case is not whether we should "read this Act as excluding all political party activity . . . [and] ope[n] a loophole in the statute," ante, at 235, but whether we should read § 5 to include such activity in the first place. If there is any "loophole" in § 5 here, it results from the fact that Congress simply did not cover political parties in the preclearance provision. Jus- tice Breyer's argument thus boils down to the curious notion that when Congress passes a statute that covers certain actors, it thereby establishes a "loophole" for all others. Moreover, while Congress was surely aware of the history of discrimination in the political process when it passed the Act, I presume it was also cognizant of the prohibitions of the First Amendment, see infra, at 282­285, as well as the constraints on its legis- lative powers under the Fifteenth Amendment, not the least of which is the state-action requirement. See n. 14, supra. Both of these constitu- tional limits on Congress' powers are sufficient reason to curb speculation and to think it "possible" (if the lack of textual evidence were not enough) that Congress did not intend to cover political parties under § 5. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 278 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting include conventions, the most natural (and logical) inference is that Congress did not intend to include voting at conven- tions within the definition of "voting." The omission of conventions from the list of elections cov- ered in § 14 is especially revealing when compared to and contrasted with other federal election laws. The Federal Election Campaign Act of 1971 defines "election" to mean "(A) a general, special, primary, or runoff election; [and] (B) a convention or caucus of a political party which has author- ity to nominate a candidate." 86 Stat. 11, as amended, 2 U. S. C. § 431(1) (emphasis added). Similarly, § 600 of Title 18 criminalizes the promising of employment in exchange for political support "in connection with any general or special election to any political office, or in connection with any pri- mary election or political convention or caucus held to select candidates for any political office." 18 U. S. C. § 600 (empha- sis added). See also § 601(b)(2) (defining "election" as, inter alia, "a convention or caucus of a political party held to nom- inate a candidate") (emphasis added). Congress obviously knows how to cover nominating conventions when it wants to. After all, if there is a field in which Congress has exper- tise, it is elections. Justice Stevens maintains that the fee relates to "vot- ing" because, even though it was not imposed at one of the three types of elections listed in § 14, it diminished the effec- tiveness of appellants' votes at the general election. See ante, at 205­206. As I explained in Holder v. Hall, 512 U. S. 874 (1994), my view is that "as far as the Act is concerned, an `effective' vote is merely one that has been cast and fairly counted." Id., at 919 (Thomas, J., concurring in judgment). Appellants do not contend that they were unable to submit a ballot in the general election or that their votes in that election were not properly registered and counted. I thus would not strain to hold, as do Justices Stevens and Breyer, that appellants' votes at the general election lacked 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 279 Thomas, J., dissenting effect simply because their personal favorite for the Republi- can nomination was not on the ballot as the Party candidate. Justice Stevens also reasons that party primaries and conventions are functionally indistinguishable. See ante, at 205­207, 214­215. Similarly, Justice Breyer maintains that the convention in this case "resembles a primary about as closely as one could imagine." Ante, at 238. These as- sertions may or may not be true as a matter of practical judgment (or imagination). One crucial difference between primaries and conventions is that in the context of the for- mer, the party often avails itself of a system erected, funded, and managed by the State, whereas in the latter, it generally does not. Consequently, charging the State with responsi- bility for voting changes that occur in a primary, where there may be actual state involvement, makes more sense than holding the State accountable for changes implemented at a party convention. Though Justice Breyer lists several reasons why the Party's convention was like a primary, see ibid., he fails to mention the critical factor of state involvement. In any event, the question whether conventions ought to be governed by the Act is, at bottom, a matter of policy. And, as far as I can discern from the face of § 14, Congress made no policy determination in favor of regulating conven- tions under the Act. Though one might think it more sensi- ble to include conventions in § 14, "[t]he short answer is that Congress did not write the statute that way." United States v. Naftalin, 441 U. S. 768, 773 (1979). When we examine the legislative lines that Congress has drawn, we generally do not hold Congress to exceedingly rigorous standards of logic. See, e. g., FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) (reviewing statute for rational basis under Equal Protection Clause and noting that " `judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted' ") (quoting Vance v. Brad- ley, 440 U. S. 93, 97 (1979)); International Primate Protec- 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 280 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting tion League v. Administrators of Tulane Ed. Fund, 500 U. S. 72, 84­85 (1991) (enforcing, in statutory construction case, a distinction based on a "mere technicality" because "Congress could rationally have made such a distinction"). Justice Stevens is right that "we have held that § 5 ap- plies to cases like Whitley v. Williams, which involve candi- dacy requirements and qualifications." Presley v. Etowah County Comm'n, 502 U. S., at 502; see ante, at 206­207. However, those cases all involved qualifications for candi- dates running in either primary or general elections that are clearly within the scope of § 14. See 502 U. S., at 502. ("In Whitley v. Williams, there were changes in the require- ments for independent candidates running in general elec- tions"). See also NAACP v. Hampton County Election Comm'n, 470 U. S. 166 (1985) (change in filing deadline to run for school board in general election); Hadnott v. Amos, 394 U. S. 358 (1969) (change in filing deadline for general elec- tion); Dougherty County Bd. of Ed. v. White, 439 U. S. 32 (1978) (rule requiring school board members to take unpaid leave of absence while campaigning for office, where plaintiff ran in primary and general election). The cases holding that changes in the composition of the electorate are covered by § 5 likewise involve general elections. See Allen v. State Bd. of Elections, 393 U. S., at 550, 569 (change from district to at-large, general election). Thus, we had no occasion in any of these cases to question whether activity that occurs at a nominating convention, as opposed to a primary, special, or general election, falls under the Act's definition of "vot- ing." Rather, the issue in these cases was whether the con- tested change had a sufficiently "direct relation to, or impact on, voting," Presley v. Etowah County Comm'n, supra, at 506, so as to constitute a "practice or procedure with respect to voting" subject to preclearance under § 5. See, e. g., Allen v. State Bd. of Elections, supra, at 569 (holding that "the enactment in each of these cases constitutes a `voting qualification or prerequisite to voting, or standard, practice, 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 281 Thomas, J., dissenting or procedure with respect to voting' within the meaning of § 5"). Regardless of whether Congress has ever "endorsed these broad constructions of § 5," ante, at 205, they have no bearing on the meaning of § 14. Nor does the reference to the election of party officials bring the convention within the ambit of § 14, as Justice Stevens and Justice Breyer argue. See ante, at 207­ 208; ante, at 236­237. Section 14 does refer to "votes cast with respect to candidates for public or party office." 42 U. S. C. § 1973l(c)(1) (1988 ed.). But Justices Stevens and Breyer amputate that phrase from the rest of the sentence, which provides that casting a vote at a "primary, special, or general election" for "candidates for . . . party office" consti- tutes "voting" for purposes of the Act. See ibid. (voting is "all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to . . . casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office"). Under § 14, then, voting does extend to casting a ballot for a party officer, but only when that ballot is cast at a primary, special, or general election. Since this is obvious on the face of the statute, I see no need to resort to the legislative history of the Bing- ham Amendment. Cf. ante, at 208­209 (opinion of Stevens, J.); ante, at 236­237 (Breyer, J., concurring in judgment). Though Representative Bingham may have had every inten- tion of covering the activities of political parties under § 5, there is no evidence that he succeeded in transforming that intention into law. Finally, as Justice Stevens notes, §§ 2 and 5 would ap- pear to be designed to work in tandem. See ante, at 209­ 210. Nonetheless, there is a patent discrepancy between the broad sweep of § 2, which refers to "the political processes leading to nomination or election," and the undeniably nar- rower definition of voting set forth in § 14, which is limited to the context of a "primary, special, or general election." 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 282 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting The incongruity appears to be a result of Congress' 1982 amendment of § 2 to expand its reach to pre-election political processes, see Pub. L. 97­205, § 3, 96 Stat. 134, without mak- ing any concomitant amendments to either § 5 or § 14. As long as § 5 contains the term "voting," and § 14 in turn de- fines that word, I think we must adhere to the specific defi- nition provided in § 14. We cannot decline to apply that definition according to its terms simply because we think it would be preferable to harmonize §§ 2 and 5. If the 1982 amendment produced an undesirable inconsistency between §§ 2 and 5, Congress is free to harmonize them.19 C Were I otherwise willing to disregard the plain meaning of §§ 5 and 14, there is another factor counseling strongly against the Court's interpretation of the Act. Holding that the Party's convention fee must be precleared by the Gov- ernment poses serious constitutional problems. Our stand- 19 Legislative history is insufficient to bridge this gap in coverage that is apparent on the face of the statutes, as Justice Stevens would have it. See ante, at 210, n. 25. In any case, the legislative history cited by Justice Stevens is wholly nonresponsive to the issue of which types of entities must submit their rules for preclearance under § 5. That is, the legislative history discusses certain kinds of changes that must be pre- cleared, without suggesting that the entities that must comply with the preclearance requirement are anything other than States and political sub- divisions. The part of the Senate Report cited by Justice Stevens ad- dresses the need to preclear statewide redistricting plans. Reapportion- ment plans, of course, are usually enacted by state or local legislative bodies. See, e. g., Beer v. United States, 425 U. S. 130 (1976) (reapportion- ment plan adopted by city council). The passage in the House Report states that a voting practice that is outside the scope of the preclearance provision (either because it was in existence before 1965 or is implemented in a noncovered jurisdiction) may nonetheless be challenged in a lawsuit under § 2; hence the distinction between preclearance and litigation. The Report thus supports precisely the opposite proposition for which Justice Stevens cites it: It expressly states that not every action that can be brought under § 2 falls within the scope of § 5. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 283 Thomas, J., dissenting ard practice is to avoid constructions of a statute that create such difficulties. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). "This approach not only reflects the pru- dential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Consti- tution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties." Ibid. Among the constitutional questions raised by this decision are ones relating to freedom of political association. "The First Amendment protects political association as well as po- litical expression." Buckley v. Valeo, 424 U. S. 1, 15 (1976). Political parties, and their supporters, enjoy this constitu- tional right of political affiliation. Cousins v. Wigoda, 419 U. S. 477, 487 (1975). "[A]t the very heart of the freedom of assembly and association," is "[t]he right of members of a political party to gather in a . . . political convention in order to formulate proposed programs and nominate candidates for political office." Id., at 491 (Rehnquist, J., concurring in result). A convention to nominate a party candidate is per- haps the classic forum for individual expression of political views and for association with like-minded persons for the purpose of advancing those views. We need not look beyond this case to "hypothetical," ante, at 228, controversies in order to identify substantial First Amendment concerns. As applied today, § 5 burdens the rights of the Party and its members to freedom of political association. The Party has represented in this Court that it decided to charge each delegate a registration fee rather than to fund the convention with contributions from a few major donors in order to avoid undue influence from a small group of contributors. See Brief for Appellees 45­46. Under our precedents, the Party's choice of how to fund its statewide convention seems to be a constitutionally pro- 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 284 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting tected one. "The Party's determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the Constitu- tion." Tashjian v. Republican Party of Conn., 479 U. S. 208, 224 (1986). See also Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 124 (1981) ("A political party's choice among the various ways of determin- ing the makeup of a State's delegation to the party's national convention is protected by the Constitution"). As the Court of Appeals for the District of Columbia Circuit has explained, "a party's choice, as among various ways of governing itself, of the one which seems best calculated to strengthen the party and advance its interests, deserves the protection of the Constitution . . . . [T]here must be a right not only to form political associations but to organize and direct them in the way that will make them most effective." Ripon Soci- ety, Inc. v. National Republican Party, 525 F. 2d 567, 585 (1975) (en banc), cert. denied, 424 U. S. 933 (1976) (emphasis deleted). By requiring the Party to seek approval from the Federal Government before it may implement rules regard- ing the funding of nominating conventions, the Court has burdened the Party's ability to institute the constitutionally protected choice embodied in those rules. Moreover, if the Attorney General or a federal court were to refuse to preclear the registration fee, the Government would in effect be requiring the Party to include persons who could not, or would not, pay the registration fee for its convention. But, as we have held, "the freedom to associate for the `common advancement of political beliefs,' necessarily presupposes the freedom to identify the people who consti- tute the association, and to limit the association to those peo- ple only." Democratic Party of United States v. Wisconsin, supra, at 122 (citation omitted). See also Eu v. San Fran- cisco County Democratic Central Comm., 489 U. S. 214, 224 (1989). Section 5, under the Court's novel construction, im- pinges upon that interest. Furthermore, the Court creates 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 285 Thomas, J., dissenting a classic prior restraint on political expression, as Justice Scalia cogently explains. See ante, at 243­246. Legislative burdens on associational rights are subject to scrutiny under the First Amendment. See Burdick v. Ta- kushi, 504 U. S., at 433­434 (level of scrutiny depends upon severity of the infringement); cf. Eu, supra, at 225; Cousins, supra, at 489. Severe interference with protected rights of political association "may [only] be sustained if the [govern- ment] demonstrates a sufficiently important interest and em- ploys means closely drawn to avoid unnecessary abridgment of associational freedoms." Buckley, supra, at 25. Though Justice Stevens and Justice Breyer glibly dismiss this constitutional inquiry, see ante, at 228­229; ante, at 239 ("[s]uch questions, we are satisfied, are not so difficult"), it is not equally obvious to me that § 5, as interpreted today, would survive a First Amendment challenge. Justice Stevens is correct that, under the White Pri- mary Cases, First Amendment rights of political association cede to the guarantees of the Fifteenth Amendment in cer- tain circumstances. Ante, at 228. The Court has held that when state-approved exclusion from a political group is tan- tamount to exclusion from the actual election, that exclusion violates the Fifteenth Amendment. See Terry v. Adams, 345 U. S., at 469­470. However, where a person is refused membership in a political organization without any involve- ment on the part of the State, and membership in the group is not a precondition to participation in the ultimate choice of representatives, there can logically be no state denial of the right to vote. In such a situation, there is no conflict between the First and Fifteenth Amendments. Exclusion of political parties from the coverage of § 5 obvi- ates the foregoing First Amendment problems. Cf. Miller v. Johnson, 515 U. S. 900, 926­927 (1995) (rejecting possible reading of § 5 because it raised constitutional problems). By letting stand a construction of § 5 that encompasses political parties, however, the Court begets these weighty First 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 286 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting Amendment issues. Ironically, the Court generates these difficulties by contorting, rather than giving the most natural meaning to, the text of § 5. II I also disagree with the Court that § 10 of the Voting Rights Act contains an implicit cause of action for private suits against States and localities that impose poll taxes upon voters. Section 10 states: "[T]he Attorney General is authorized and directed to institute forthwith in the name of the United States such actions, including actions against States or political sub- divisions, for declaratory judgment or injunctive relief against the enforcement of any requirement of the pay- ment of a poll tax as a precondition to voting, or substi- tute therefor enacted after November 1, 1964, as will be necessary to implement the declaration of subsection (a) of this section and the purposes of this section." 42 U. S. C. § 1973h(b). By its very terms, § 10 authorizes a single person to sue for relief from poll taxes: the Attorney General. The ines- capable inference from this express grant of litigating au- thority to the Attorney General is that no other person may bring an action under § 10. Though Justice Stevens con- tends that implication of a private cause of action is crucial to the enforcement of voting rights, ante, at 231, § 10 itself indicates otherwise. Suits instituted by the Attorney Gen- eral were evidently all that Congress thought "necessary to implement . . . the purposes of this section." Ibid. Section 10 explicitly entrusts to the Attorney General, and to the Attorney General alone, the duty to seek relief from poll taxes under the Act. Although Allen v. State Bd. of Elections, 393 U. S. 544 (1969), held that § 5 of the Voting Rights Act contains a pri- vate right of action, Allen does not require the same result under § 10. Section 5 affirmatively proclaims that " `no per- 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 287 Thomas, J., dissenting son shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, § 5].' " Id., at 555. It was "[a]nalysis of this lan- guage" that "indicate[d] that appellants may seek a declara- tory judgment that a new state enactment is governed by § 5." Ibid. A private cause of action was thought neces- sary to effectuate "[t]he guarantee of § 5 that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to § 5." Id., at 557.20 See also Cannon v. University of Chicago, 441 U. S. 677, 690 (1979) ("[I]t was statutory language describing the special class to be benefited by § 5 . . . that persuaded the Court that private parties within that class were implicitly authorized to seek a declaratory judgment against a covered State"). Unlike § 5, § 10 creates no statutory privilege in any partic- ular class of persons to be free of poll taxes. The only possi- ble "guarantee" created by § 10 is that the Attorney General will challenge the enforcement of poll taxes on behalf of those voters who reside in poll tax jurisdictions. What § 10 does not do, however, is actually prohibit a State or po- litical subdivision from administering poll taxes. Nor does it declare that no person shall be required to pay a poll tax. Rather, § 10 merely provides, as a "declaration of policy" prefacing the authorization for civil suits, that "the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting." 42 U. S. C. § 1973h(a). It further provides that when a jurisdiction administers a poll tax, the Attorney General may prevent its enforcement by bringing suit in accordance with certain procedural require- ments, including a three-judge district court and direct ap- peal to this Court. See § 1973h(c). Section 10 creates no ban on the imposition of poll taxes, whereas § 5, Allen said, 20 This language makes clear that the "guarantee" described in Allen was not, as Justice Stevens asserts, "simply its holding that individuals can sue under § 5." Ante, at 233, n. 43. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 288 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting guaranteed that no person would be subject to unapproved voting changes. Thus, § 10 confers no rights upon individu- als and its remedial scheme is limited to suits by the Attor- ney General. Cf. ante, at 232 (opinion of Stevens, J.). I am unpersuaded by the maxim that Congress is pre- sumed to legislate against the backdrop of our "implied cause of action" jurisprudence. See Cannon v. University of Chi- cago, supra, at 698­699; ante, at 230­231. That maxim is relevant to but one of the three factors that were established for determining the existence of private rights of action in Cort v. Ash, 422 U. S. 66 (1975), and that were applied in Cannon. See Cannon v. University of Chicago, supra, at 699 (considering "contemporary legal context" of statute to assess the third Cort factor, whether the legislative history reveals an intent to create a cause of action). Though we may thus look to this presumption for guidance in evaluating the history of a statute's enactment, "what must ultimately be determined is whether Congress intended to create the private remedy asserted." Transamerica Mortgage Advi- sors, Inc. v. Lewis, 444 U. S. 11, 15­16 (1979). See also Touche Ross & Co. v. Redington, 442 U. S. 560, 575 (1979). We do this by "begin[ning] with the language of the statute itself." Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 16. In my view, § 10-which authorizes only the Attorney General to sue for relief and creates no enforceable right in any person to be free from poll taxes-precludes the inference that Congress intended the availability of implied causes of action under that section.21 Finally, the 1975 amendments to the Voting Rights Act do not justify the judicial creation of a private cause of action 21 Nor do I think that we should imply a cause of action under § 10 simply because we have heard and decided challenges by private plaintiffs under § 2. See ante, at 232 (opinion of Stevens, J.); ante, at 240 (Breyer, J., concurring in judgment). We ought not base our decision in this case on the fact that we have inadvertently, and perhaps incorrectly, allowed pri- vate suits to proceed under other sections of the Act. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 289 Thomas, J., dissenting under § 10. See ante, at 233­234 (opinion of Stevens, J.). Section 3 is a generalized section of the Act, providing three-judge district courts with special authority in adjudi- cating Voting Rights Act claims. See 42 U. S. C. § 1973a. As appellants accurately state, § 3 "explicitly recognizes that private individuals can sue under the [Act]." Brief for Ap- pellants 41. Section 3 does not, however, identify any of the provisions under which private plaintiffs may sue. The most logical deduction from the inclusion of "aggrieved per- son" in § 1973a is that Congress meant to address those cases brought pursuant to the private right of action that this Court had recognized as of 1975, i. e., suits under § 5, as well as any rights of action that we might recognize in the future. Section 14(e), which provides for attorney's fees to "the pre- vailing party, other than the United States," is likewise a general reference to private rights of action. Like § 3, § 14(e) fails to address the availability of a private right to sue under § 10. § 1973l(e).22 At bottom, appellants complain that unless a private cause of action exists under § 10, private plaintiffs will be forced to challenge poll taxes by bringing constitutional claims in single-judge district courts. This, they contend, "is directly contrary to the special procedures for adjudicating poll tax claims established by Congress in section 10." Brief for Ap- pellants 38. It is appellants' claim, however, that flatly con- travenes § 10. The only "special procedure" for litigating poll tax challenges that Congress created in § 10 is an action by the Attorney General on behalf of the United States. 22 It does not follow from Congress' technical amendment of § 10 in 1975, which Justice Breyer takes as an indication that "§ 10 remained an im- portant civil rights provision," ante, at 240, that we should imply a cause of action thereunder. A statute outlawing a class of voting practices and authorizing the Attorney General of the United States to sue jurisdictions that engage in such practices is surely an "important" provision, even if not privately enforceable. 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT 290 MORSE v. REPUBLICAN PARTY OF VA. Thomas, J., dissenting * * * To conclude, I would decide this controversy on the ground that the Republican Party of Virginia is not a "State or polit- ical subdivision" for purposes of § 5. This is true whether one invokes the ordinary meaning of the term "State" or even, as the Court erroneously does, the state-action theory of our constitutional precedents. Even if the Party were a "State" or a state actor, the registration fee does not relate to "voting," as defined by § 14. Because the argument for the applicability of § 5 in this case fails at each step, I would not require the Party to preclear its convention registration fee under § 5. Nor would I imply a private right of action under § 10. Today, the Court cuts § 5 loose from its explicit textual moorings regarding both the types of entities and the kinds of changes that it governs. Justice Breyer, writing for three Members of the Court, does so without attempting to define the limits of § 5's applicability to political parties and their practices. See ante, at 238 ("We need not . . . deter- min[e] when party activities are, in effect, substitutes for state nominating primaries"); ibid. ("Nor need we go further to decide just which party nominating convention practices fall within the scope of the Act"). Indeed, Justice Breyer expends much ink evading inevitable questions about the Court's decision. See ante, at 239 ("We go no further in this case because, as the dissents indicate, First Amendment questions about the extent to which the Federal Govern- ment, through preclearance procedures, can regulate the workings of a political party convention, are difficult ones, as are those about the limits imposed by the state-action cases") (citations omitted). This is not reassuring, and it will not do. Eventually, the Court will be forced to come to grips with the untenable and constitutionally flawed interpretation of § 5 that it has wrought in this case. That encounter, 517us1$38N 02-23-99 16:40:26 PAGES OPINPGT Cite as: 517 U. S. 186 (1996) 291 Thomas, J., dissenting which could easily have been averted today, will involve yet another Voting Rights Act conundrum of our own making.23 When leveled against wholly private partisan organiza- tions with respect to their internal affairs, § 5's potential for use as an instrument of political harassment should be ob- vious to all. I have no doubt that § 5 was never intended for such purposes. Rather, that section was aimed at preventing covered States from intentionally and systemati- cally evading the guarantees of the Voting Rights Act by simply recasting their election laws. This suit, along with the ones certain to follow, trivializes that goal. I respect- fully dissent. 23 Apart from the preclearance issues that the Court leaves unresolved, today's judgment raises additional questions under the Voting Rights Act, since the phrase "State or political subdivision" is used in several other key provisions. For instance, may political parties bring a declaratory judgment action under § 5 as an alternative to preclearance? See 42 U. S. C. § 1973c. May political parties bring a "bailout suit" for exclusion from the category of covered jurisdictions? See § 1973b(a). Are political parties subject to suit under § 2? See § 1973(a). Can a three-judge dis- trict court authorize the appointment of federal examiners to monitor a political party's activities during the pendency of, and as part of a final judgment in, a voting rights suit? See § 1973a(a). Quite apparently, the Court has not stopped to consider the ramifications of its decision. 517us1$39z 02-16-99 19:38:38 PAGES OPINPGT 292 OCTOBER TERM, 1995 Syllabus RUTLEDGE v. UNITED STATES certiorari to the united states court of appeals for the seventh circuit No. 94­8769. Argued November 27, 1995-Decided March 27, 1996 A jury found petitioner guilty of one count of participating in a conspiracy to distribute controlled substances in violation of 21 U. S. C. § 846 and one count of conducting a continuing criminal enterprise (CCE) "in con- cert" with others in violation of § 848. The "in concert" element of his CCE offense was based on the same agreement as the § 846 conspiracy. The District Court entered judgment of conviction on both counts and imposed a sentence of life imprisonment without possible release on each, the sentences to be served concurrently. Pursuant to 18 U. S. C. § 3013, it also ordered petitioner to pay a special assessment of $50 on each count. The Seventh Circuit affirmed, relying on Jeffers v. United States, 432 U. S. 137, to reject petitioner's contention that his convic- tions and concurrent life sentences impermissibly punished him twice for the same offense. Held: The District Court erred in sentencing petitioner to concurrent life sentences on the § 846 and § 848 counts. Pp. 297­307. (a) It is presumed that a legislature does not intend to impose two punishments where two statutory provisions proscribe the "same of- fense." The test for determining whether there are two offenses is whether each of the statutory provisions requires proof of a fact which the other does not. Blockburger v. United States, 284 U. S. 299, 304. This Court has often concluded that two statutes define the "same of- fense" where one is a lesser included offense of the other. For the rea- sons set forth in Jeffers, 432 U. S., at 149­150 (plurality opinion); id., at 158, 159, n. 5 (dissenting opinion), and particularly because the plain meaning of § 848's "in concert" phrase signifies mutual agreement in a common plan or enterprise, the Court now resolves definitively that a guilty verdict on a § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of § 846. Conspir- acy is therefore a lesser included offense of CCE. Pp. 297­300. (b) The Court rejects the Government's contention that the presump- tion against multiple punishments does not invalidate either of petition- er's convictions because the sentence on the second one was concurrent. That conviction amounts to a second punishment because a $50 special assessment was imposed on it. Cf. Ray v. United States, 481 U. S. 736 (1987) (per curiam). Even if the assessment were ignored, the force of 517us1$39z 02-16-99 19:38:38 PAGES OPINPGT Cite as: 517 U. S. 292 (1996) 293 Syllabus the Government's argument would be limited by Ball v. United States, 470 U. S. 856, 861­865, in which the Court concluded that Congress did not intend to allow punishment for both illegally "receiving" and ille- gally "possessing" a firearm; held that the only remedy consistent with the congressional intent was to vacate one of the underlying convictions as well as the concurrent sentence based upon it; and explained that the second conviction does not evaporate simply because of its sentence's concurrence, since it has potential adverse collateral consequences- e. g., delay of parole eligibility or an increased sentence under a recidi- vist statute for a future offense-that make it presumptively impermis- sible to impose. Although petitioner did not challenge the $50 assess- ment below, the fact that § 3013 required its imposition renders it as much a collateral consequence of the conspiracy conviction as the conse- quences recognized by Ball. Pp. 301­303. (c) Also rejected is the Government's argument that the presumption against multiple punishments is overcome here because Congress has clearly indicated its intent to allow courts to impose them. Support for that view cannot be inferred from the fact that this Court's Jeffers judg- ment allowed convictions under both §§ 846 and 848 to stand, since those convictions were entered in separate trials, the Court's review ad- dressed only the § 848 conviction, and that conviction was affirmed be- cause the four-Justice plurality decided that Jeffers had waived any right to object, see 432 U. S., at 152­154, and because Justice White took the hereinbefore-rejected position that conspiracy was not a lesser included offense of CCE, see id., at 158 (opinion concurring in judgment in part and dissenting in part). As to this issue, then, the judgment is not entitled to precedential weight because it amounts at best to an unexplained affirmance by an equally divided court. Pp. 303­304. (d) The Government's argument that Congress intended to allow mul- tiple convictions here to provide a "backup" conviction, preventing a defendant who later successfully challenges his greater offense from es- caping punishment altogether, is unpersuasive. There is no reason why this particular pair of greater and lesser offenses should present any novel problem not already addressed by the federal appellate courts, which have uniformly concluded-with this Court's approval, see, e. g., Morris v. Mathews, 475 U. S. 237, 246­247-that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds affecting only the greater of- fense. Pp. 305­307. (e) Because the Court here adheres to the presumption that Congress intended to authorize only one punishment, one of petitioner's convic- tions, as well as its concurrent sentence, is unauthorized punishment 517us1$39z 02-16-99 19:38:38 PAGES OPINPGT 294 RUTLEDGE v. UNITED STATES Opinion of the Court for a separate offense and must be vacated under Ball, 470 U. S., at 864. P. 307. 40 F. 3d 879, reversed and remanded. Stevens, J., delivered the opinion for a unanimous Court. Barry Levenstam argued the cause for petitioner. With him on the briefs were Jerold S. Solovy, Avidan J. Stern, and Jacob I. Corre´. James A. Feldman argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor Gen- eral Dreeben, and Richard A. Friedman. Justice Stevens delivered the opinion of the Court. A jury found petitioner guilty of participating in a conspir- acy to distribute controlled substances in violation of 84 Stat. 1265, as amended, 21 U. S. C. § 846, and of conducting a con- tinuing criminal enterprise (CCE) in violation of § 848. The "in concert" element of his CCE offense was based on the same agreement as the § 846 conspiracy. The question pre- sented is whether it was therefore improper for the District Court to sentence him to concurrent life sentences on the two counts. I Petitioner organized and supervised a criminal enterprise that distributed cocaine in Warren County, Illinois, from 1988 until December 1990, when he was arrested by federal agents. He was charged with several offenses, of which only Count One, the CCE charge, and Count Two, the conspiracy charge, are relevant to the issue before us. Count One alleged that during the period between early 1988 and late 1990, petitioner violated § 848 1 by engaging in 1 Section 848(c) provides: "(c) `Continuing criminal enterprise' defined "For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if- 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT Cite as: 517 U. S. 292 (1996) 295 Opinion of the Court a CCE that consisted of a series of unlawful acts involving the distribution of cocaine.2 The count alleged that these actions were undertaken "in concert with at least five (5) other persons," that petitioner supervised those other per- sons, and that he obtained substantial income from the con- tinuing series of violations. App. 2­3. Count Two separately alleged that during the same period, petitioner violated 21 U. S. C. § 846 3 by conspiring with four codefendants and others to engage in the unlawful distribu- tion of cocaine. The count alleged that each of the conspira- tors had furthered the conspiracy by performing an overt act involving the delivery, purchase, or distribution of cocaine. App. 3­5. After a 9-day trial, a jury found petitioner guilty on all counts. The trial court entered judgment of conviction on both Count One and Count Two and imposed a sentence of life imprisonment without possible release on each count, the sentences to be served concurrently. Id., at 8­10. Pursu- ant to 18 U. S. C. § 3013, petitioner was also ordered to pay a special assessment of $50 on each count. "(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and "(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter- "(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and"(B) from which such person obtains substantial income or resources." 21 U. S. C. § 848(c). 2 The alleged unlawful acts included a series of cocaine transactions in violation of § 841(a) and the same conspiracy in violation of § 846 that was charged in Count Two. 3 "§ 846. Attempt and conspiracy "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those pre- scribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U. S. C. § 846. 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT 296 RUTLEDGE v. UNITED STATES Opinion of the Court On appeal, petitioner contended in a pro se supplemental brief that even though the life sentences were concurrent, entering both convictions and sentences impermissibly pun- ished him twice for the same offense. The Court of Appeals for the Seventh Circuit accepted the premise of his argu- ment, namely, that the conspiracy charge was a lesser in- cluded offense of the CCE charge. 40 F. 3d 879, 886 (1994). The Court of Appeals nonetheless affirmed his convictions and sentences. Relying on its earlier decision in United States v. Bond, 847 F. 2d 1233, 1238 (1988), and our decision in Jeffers v. United States, 432 U. S. 137 (1977), it held that convictions and concurrent sentences may be imposed for conspiracy and CCE, "provided the cumulative punishment does not exceed the maximum under the CCE act." 40 F. 3d, at 886. The decision of the Seventh Circuit is at odds with the practice of other Circuits. Most federal courts that have confronted the question hold that only one judgment should be entered when a defendant is found guilty on both a CCE count and a conspiracy count based on the same agreements.4 The Second and Third Circuits have adopted an intermediate position, allowing judgment to be entered on both counts but permitting only one sentence rather than the concurrent sen- 4 See, e. g., United States v. Rivera-Martinez, 931 F. 2d 148, 153 (CA1), cert. denied, 502 U. S. 862 (1991); United States v. Butler, 885 F. 2d 195, 202 (CA4 1989); United States v. Neal, 27 F. 3d 1035, 1054 (CA5 1994), cert. denied, 513 U. S. 1179 (1995); United States v. Paulino, 935 F. 2d 739, 751 (CA6 1991), cert. denied, 502 U. S. 1036 (1992); United States v. Pos- sick, 849 F. 2d 332, 341 (CA8 1988); United States v. Hernandez-Escarsega, 886 F. 2d 1560, 1582 (CA9 1989), cert. denied, 497 U. S. 1003 (1990); United States v. Stallings, 810 F. 2d 973, 976 (CA10 1989); United States v. Cruz, 805 F. 2d 1464, 1479 (CA11 1986), cert. denied, 481 U. S. 1006 (1987); United States v. Anderson, 39 F. 3d 331, 357 (CADC 1994), rev'd on other grounds, 59 F. 3d 1323 (CADC 1995) (en banc). 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT Cite as: 517 U. S. 292 (1996) 297 Opinion of the Court tences allowed in the Seventh Circuit.5 We granted certio- rari to resolve the conflict. 515 U. S. 1157 (1995). II Courts may not "prescrib[e] greater punishment than the legislature intended." Missouri v. Hunter, 459 U. S. 359, 366 (1983); Brown v. Ohio, 432 U. S. 161, 165 (1977). In ac- cord with principles rooted in common law and constitutional jurisprudence, see Ex parte Lange, 18 Wall. 163, 168­170 (1874), we presume that "where two statutory provisions proscribe the `same offense,' " a legislature does not intend to impose two punishments for that offense. Whalen v. United States, 445 U. S. 684, 691­692 (1980); Ball v. United States, 470 U. S. 856, 861 (1985). For over half a century we have determined whether a defendant has been punished twice for the "same offense" by applying the rule set forth in Blockburger v. United States, 284 U. S. 299, 304 (1932). If "the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Ibid. In subsequent applications of the test, we have often concluded that two different statutes define the "same offense," typically be- cause one is a lesser included offense of the other.6 5 United States v. Aiello, 771 F. 2d 621, 634 (CA2 1985); United States v. Fernandez, 916 F. 2d 125, 128­129 (CA3 1990), cert. denied, 500 U. S. 948 (1991). 6 See, e. g., Ball v. United States, 470 U. S. 856, 861­864 (1985) (conclud- ing that multiple prosecutions were barred because statutes directed at "receipt" and "possession" of a firearm amounted to the "same offense," in that proof of receipt "necessarily" included proof of possession); Whalen v. United States, 445 U. S. 684, 691­695 (1980) (concluding that two punish- ments could not be imposed because rape and felony murder predicated on the rape were the "same offense"); Brown v. Ohio, 432 U. S. 161, 167­168 (1977) (in multiple proceedings context, applying Blockburger 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT 298 RUTLEDGE v. UNITED STATES Opinion of the Court In this case it is perfectly clear that the CCE offense re- quires proof of a number of elements that need not be estab- lished in a conspiracy case.7 The Blockburger test requires us to consider whether the converse is also true-whether the § 846 conspiracy offense requires proof of any element that is not a part of the CCE offense. That question could be answered affirmatively only by assuming that while the § 846 conspiracy requires proof of an actual agreement among the parties, the "in concert" element of the CCE of- fense might be satisfied by something less. The Government advanced this precise argument in Jef- fers v. United States, 432 U. S. 137 (1977),8 but it managed to persuade only one Justice. Id., at 158 (White, J., concur- ring). The position was rejected, to varying degrees, by the v. United States, 284 U. S. 299 (1932), to confirm state-court conclusion that offense of "joyriding" was a lesser included offense of auto theft). 7 The defendant must, for example, commit a series of substantive viola- tions, be a leader of the criminal enterprise, and derive substantial income from it. The Government need not prove any of those elements to estab- lish a conspiracy in violation of § 846. Even the "in concert" element of the CCE offense is broader than any requirement in § 846 because it re- quires at least five participants, while a conspiracy requires only two. 8 In Jeffers, we considered whether the Government could prosecute the defendant under § 848 even though he had previously been convicted of § 846 conspiracy on the basis of the same agreements. The Government argued that the multiple prosecution was permissible because the crimes were not the "same offense." "The Government's position is premised on its contention that agreement is not an essential element of the § 848 of- fense, despite the presence in § 848(b)(2)(A) of the phrase `in concert with.' If five `innocent dupes' each separately acted `in concert with' the ring- leader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23." 432 U. S., at 147. The Government relied on Iannelli v. United States, 420 U. S. 770 (1975), in which we construed 18 U. S. C. § 1955 as not requir- ing proof of conspiracy. As Justice Blackmun pointed out, however, the language of § 1955 was significantly different from § 848 in that it omitted the words "in concert" and left open "the possibility that the five persons `involved' in the gambling operation might not be acting together." 432 U. S., at 147­148. 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT Cite as: 517 U. S. 292 (1996) 299 Opinion of the Court other eight. The four dissenters adopted, without comment, the proposition that conspiracy was a lesser included offense of CCE. See id., at 158, 159, n. 5. The remaining Justices joined Justice Blackmun's plurality opinion which, while de- clining to hold that conspiracy was a lesser included offense,9 nonetheless explained why the Government's argument was inconsistent with the statute's text, with the way the words "in concert" have been used in other statutes, and with the legislative history of this statute.10 Based on its under- standing of the "more likely" interpretation of § 848, the plu- rality assumed, arguendo, "that § 848 does require proof of 9 The plurality did not need to hold that conspiracy was a lesser included offense because it found that even if it was, the petitioner waived whatever right he may have had to object to the second prosecution under § 848 when he opposed the Government's motion, brought before the first trial, to consolidate the proceedings. Id., at 149­150, 153­154. 10 The language of § 848 "restricts the definition of the crime to a contin- uing series of violations undertaken by the accused `in concert with five or more other persons.' " Id., at 148. As a result, "a conviction [under § 848] would be impossible unless concerted activity were present. . . . Even if § 848 were read to require individual agreements between the leader . . . and each of the other five necessary participants, enough would be shown to prove a conspiracy." Ibid. Furthermore, "[w]hen the phrase `in concert' has been used in other statutes, it has generally connoted cooperative action and agreement. . . . This suggests that Congress intended the same words to have the same meaning in § 848. . . . Since the word `concert' commonly signifies agree- ment of two or more persons in a common plan or enterprise, a clearly articulated statement from Congress to the contrary would be necessary before that meaning should be abandoned." Id., at 149, n. 14 (citations omitted); see 3 Oxford English Dictionary 658 (2d ed. 1989) (defining "con- cert" as "[a]greement of two or more persons or parties in a plan, design, or enterprise; union formed by such mutual agreement"; "esp[ecially] in phrase in concert"); Webster's Third New International Dictionary 470 (1981) (defining "concert" as "agreement in a design or plan: union formed by mutual communication of opinions and views: accordance in a scheme"). Thus, "[i]n the absence of any indication from the legislative history or elsewhere to the contrary, the far more likely explanation is that Congress intended the word `concert' to have its common meaning of agreement in a design or plan." Jeffers, 432 U. S., at 148­149. 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT 300 RUTLEDGE v. UNITED STATES Opinion of the Court an agreement among the persons involved in the continuing criminal enterprise. So construed, § 846 is a lesser included offense of § 848, because § 848 requires proof of every fact necessary to show a violation under § 846 as well as proof of several additional elements." Id., at 149­150. In the years since Jeffers was decided, the Courts of Ap- peals have also consistently rejected the Government's inter- pretation of the "in concert" language of § 848; they have concluded, without exception, that conspiracy is a lesser in- cluded offense of CCE.11 We think it is appropriate now to resolve the point definitively: For the reasons set forth in Jeffers, and particularly because the plain meaning of the phrase "in concert" signifies mutual agreement in a common plan or enterprise, we hold that this element of the CCE offense requires proof of a conspiracy that would also violate § 846. Because § 846 does not require proof of any fact that is not also a part of the CCE offense, a straightforward appli- cation of the Blockburger test leads to the conclusion that conspiracy as defined in § 846 does not define a different of- fense from the CCE offense defined in § 848. Furthermore, since the latter offense is the more serious of the two, and because only one of its elements is necessary to prove a § 846 conspiracy, it is appropriate to characterize § 846 as a lesser included offense of § 848.12 11 See, e. g., Rivera-Martinez, 931 F. 2d, at 152 (CA1); Aiello, 771 F. 2d, at 633 (CA2); Neal, 27 F. 3d, at 1054 (CA5); United States v. Chambers, 944 F. 2d 1253, 1268 (CA6 1991), cert. denied, 502 U. S. 1112, sub nom. Lucas v. United States, 503 U. S. 989 (1992); 40 F. 3d 879, 886 (CA7 1994) (case below); Possick, 849 F. 2d, at 341 (CA8); Hernandez-Escarsega, 886 F. 2d, at 1582 (CA9); Stallings, 810 F. 2d, at 975 (CA10); United States v. Graziano, 710 F. 2d 691, 699 (CA11 1983). 12 Garrett v. United States, 471 U. S. 773, 794­795 (1985), is not to the contrary. There, we affirmed the defendant's prosecution for a CCE vio- lation even though he had previously pleaded guilty to a predicate crime of importing marijuana. Ibid. That holding, however, merely adhered to our understanding that legislatures have traditionally perceived a quali- 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT Cite as: 517 U. S. 292 (1996) 301 Opinion of the Court III The Government contends that even if conspiracy is a lesser included offense of CCE, the resulting presumption against multiple punishments does not invalidate either of petitioner's convictions. The second conviction, the Govern- ment first argues, may not amount to a punishment at all. We begin by noting that 18 U. S. C. § 3013 requires a fed- eral district court to impose a $50 special assessment for every conviction, and that such an assessment was imposed on both convictions in this case. As long as § 3013 stands, a second conviction will amount to a second punishment. Cf. Ray v. United States, 481 U. S. 736, 737 (1987) (per curiam) (presence of $50 assessment precludes application of "concur- rent sentence doctrine"). The Government urges us not to rely on the assessment, however, pointing out that petitioner did not challenge it below, and noting that the question pre- sented "presupposes" fully concurrent sentences. Brief for United States 7, n. 1. If we ignore the assessment as the Government requests, the force of its argument would nonetheless be limited by our decision in Ball v. United States, 470 U. S. 856 (1985). There, we concluded that Congress did not intend to allow punishment for both illegally "receiving" and illegally "pos- sessing" a firearm. Id., at 861­864. In light of that conclu- sion, we held that "the only remedy consistent with the con- tative difference between conspiracy-like crimes and the substantive of- fenses upon which they are predicated. See, e. g., United States v. Felix, 503 U. S. 378, 389­390 (1992) (allowing prosecution for conspiracy after petitioner was convicted of underlying substantive offense, and citing Gar- rett as a similar case). No such difference is present here. In contrast to the crimes involved in Garrett, this case involves two conspiracy-like offenses directed at largely identical conduct. Jeffers v. United States, 432 U. S., at 157; Garrett, 471 U. S., at 794 ("[T]he plurality [in Jeffers] reasonably concluded that the dangers posed by a conspiracy and a CCE were similar and thus there would be little purpose in cumulating the penalties"). 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT 302 RUTLEDGE v. UNITED STATES Opinion of the Court gressional intent is for the District Court . . . to exercise its discretion to vacate one of the underlying convictions" as well as the concurrent sentence based upon it. Id., at 864. We explained further: "The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply be- cause of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has po- tential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidi- vist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credi- bility and certainly carries the societal stigma accompa- nying any criminal conviction. See Benton v. Mary- land, 395 U. S. 784, 790­791 (1969); Sibron v. New York, 392 U. S. 40, 54­56 (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermis- sible punishment." Id., at 864­865. Under Ball, the collateral consequences of a second convic- tion make it as presumptively impermissible to impose as it would be to impose any other unauthorized cumulative sentence. The Government suggests, however, that petitioner will never be exposed to collateral consequences like those de- scribed in Ball because he is subject to multiple life sen- tences without possibility of release. We need not conclu- sively resolve the matter, for there is no doubt that the second conviction carried with it, at very least, a $50 assess- ment. Although petitioner did not challenge the assessment below, 18 U. S. C. § 3013 required the District Court to im- pose it, and the assessment was therefore as much a collat- eral consequence of the conspiracy conviction as the con- 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT Cite as: 517 U. S. 292 (1996) 303 Opinion of the Court sequences recognized by Ball would be. As a result, the conviction amounts to cumulative punishment not authorized by Congress. IV The Government further argues that even if the second conviction amounts to punishment, the presumption against allowing multiple punishments for the same crime may be overcome if Congress clearly indicates that it intended to allow courts to impose them. Hunter, 459 U. S., at 366 (cit- ing Whalen, 445 U. S., at 691­692); Garrett v. United States, 471 U. S. 773, 779 (1985) (allowing multiple punishment in light of Congress' "plainly expressed" view). The Govern- ment submits that such clear intent can be found here. The Government finds support for its position in this Court's judgment in Jeffers because that judgment allowed convictions under both §§ 846 and 848 to stand. Those con- victions, however, had been entered in separate trials and our review only addressed the conviction under § 848. The Court affirmed that conviction not because anyone on the Court suggested that Congress had intended to authorize dual convictions for the same offense,13 but rather because the four-Justice plurality decided that Jeffers had waived any right to object to Jeffers' prosecution for that conviction, see Jeffers, 432 U. S., at 152­154, and because Justice White be- lieved that the two prosecutions were for different offenses. The sole ground for Justice White's critical fifth vote to affirm the judgment was his belief, set forth in a single short paragraph, that conspiracy was not a lesser included offense 13 Indeed, the parties insisted that the case did not involve multiple pun- ishment concerns, Jeffers, 432 U. S., at 154, and n. 23, and the Government did not contend that Congress intended to authorize the imposition of dual punishments. Because neither the Court nor the parties addressed the issue, Jeffers is a singularly unlikely source for a holding that Congress clearly authorized multiple convictions. Cf. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952). 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT 304 RUTLEDGE v. UNITED STATES Opinion of the Court of CCE. Id., at 158 (opinion concurring in judgment in part and dissenting in part). In Part II of this opinion we have rejected that view. Accordingly, even if we could infer that the plurality had silently reached the rather bizarre conclu- sion that Congress intended to allow dual convictions but to preclude other multiple punishments, only four Justices would have supported it, with four others explicitly disagree- ing. As to this issue, then, the judgment amounts at best to nothing more than an unexplained affirmance by an equally divided court-a judgment not entitled to precedential weight no matter what reasoning may have supported it. See Neil v. Biggers, 409 U. S. 188, 192 (1972). The more im- portant message conveyed by Jeffers is found not in the bare judgment, but in the plurality's conclusion, joined by the four dissenters, that CCE and conspiracy are insufficiently dis- tinct to justify a finding that Congress intended to allow pun- ishments for both when they rest on the same activity.14 14 The Government suggests that convictions are authorized for both §§ 846 and 848 because they are different sections of the United States Code. Brief for United States 16. This does not rise to the level of the clear statement necessary for us to conclude that despite the identity of the statutory elements, Congress intended to allow multiple punishments. After all, we concluded in Ball that the statutes at issue did not authorize separate convictions, and they were even more distant in the Code. See 470 U. S., at 863­864 (discussing 18 U. S. C. § 922(h) and 18 U. S. C. App. § 1202(a) (1984)). If anything, the proximity of §§ 846 and 848 indicates that Congress understood them to be directed to similar, rather than sepa- rate, evils. Cf. Albernaz v. United States, 450 U. S. 333, 343 (1981). The Government further discerns congressional intent to allow multiple punishment from "significant differences" between Ball and this case. Brief for United States 19­24. None of its arguments, however, demon- strates that Congress "specially authorized" convictions for both the greater and lesser included offenses we address today. Whalen, 445 U. S., at 693. The Government suggests, for example, that the statutes in Ball were directed at virtually identical activity, while CCE and conspiracy are not. As we have already concluded, however, every proof of a CCE will demonstrate a conspiracy based on the same facts. That overlap is enough to conclude, absent more, that Congress did not intend to allow punishments for both. 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT Cite as: 517 U. S. 292 (1996) 305 Opinion of the Court V Finally, the Government argues that Congress must have intended to allow multiple convictions because doing so would provide a "backup" conviction, preventing a defendant who later successfully challenges his greater offense from escaping punishment altogether-even if the basis for the reversal does not affect his conviction under the lesser. Brief for United States 20­22. We find the argument unper- suasive, for there is no reason why this pair of greater and lesser offenses should present any novel problem beyond that posed by any other greater and lesser included offenses, for which the courts have already developed rules to avoid the perceived danger. In Tinder v. United States, 345 U. S. 565, 570 (1953), the defendant had been convicted of theft from a mailbox and improperly sentenced to prison for more than one year even though the evidence only supported a misdemeanor convic- tion. Exercising our "power to do justice as the case re- quires" pursuant to 28 U. S. C. § 2106, we ordered the Dis- trict Court to correct the sentence without vacating the underlying conviction. Relying on Tinder and the practice in "state courts, including courts governed by statutes virtu- ally the same as Section 2106," the Court of Appeals for the District of Columbia Circuit later decided that its "power to modify erroneous judgments authorizes reduction to a lesser included offense where the evidence is insufficient to support an element of the [greater] offense stated in the verdict." Austin v. United States, 382 F. 2d 129, 140, 141­143 (1967).15 15 The Court of Appeals used this same power in Allison v. United States, 409 F. 2d 445 (CADC 1969), but noted: "[T]he circumstances in which such authority may be exercised are limited. It must be clear (1) that the evidence adduced at trial fails to support one or more elements of the crime of which appellant was convicted, (2) that such evidence suffi- ciently sustains all the elements of another offense, (3) that the latter is a lesser included offense of the former, and (4) that no undue prejudice will result to the accused." Id., at 450­451. 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT 306 RUTLEDGE v. UNITED STATES Opinion of the Court Consistent with the views expressed by the District of Co- lumbia Circuit, federal appellate courts appear to have uni- formly concluded that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense. See 8A J. Moore, Federal Practice ¶ 31.03[5], and n. 54 (2d ed. 1995); United States v. Ward, 37 F. 3d 243, 251 (CA6 1994) (after finding insufficient evidence to support CCE count, Court of Appeals vacated CCE conviction and sentence and remanded for entry of conspiracy conviction, which District Court had previously vacated as lesser in- cluded offense of CCE), cert. denied, 514 U. S. 1030 (1995); United States v. Silvers, 888 F. Supp. 1289, 1306­1309 (ND Md. 1995) (reinstating conspiracy conviction previously va- cated after granting motion for new trial on CCE convic- tion). This Court has noted the use of such a practice with approval. Morris v. Mathews, 475 U. S. 237, 246­247 (1986) (approving process of reducing erroneous greater offense to lesser included offense as long as the defendant is not able to demonstrate that "but for the improper inclusion of the [erroneous] charge, the result of the proceeding probably would have been different"). See also Jones v. Thomas, 491 U. S. 376, 384­385, n. 3 (1989) (citing Morris). There is no need for us now to consider the precise limits on the appellate courts' power to substitute a conviction on a lesser offense for an erroneous conviction of a greater of- fense.16 We need only note that the concern motivating the Government in asking us to endorse either the Seventh Cir- cuit's practice of entering concurrent sentences on CCE and conspiracy counts, or the Second Circuit's practice of enter- 16 Indeed, because of our holding today, problems like the one presented in this case are unlikely to arise in the future. A jury is generally in- structed not to return a verdict on a lesser included offense once it has found the defendant guilty of the greater offense. See, e. g., Seventh Circuit Pattern Criminal Jury Instruction 2.03, in 1 L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions, p. 7­7 (1991). 517us1$39I 02-16-99 19:38:38 PAGES OPINPGT Cite as: 517 U. S. 292 (1996) 307 Opinion of the Court ing concurrent judgments, is no different from the problem that arises whenever a defendant is tried for greater and lesser offenses in the same proceeding. In such instances, neither legislatures nor courts have found it necessary to impose multiple convictions, and we see no reason why Con- gress, faced with the same problem, would consider it neces- sary to deviate from the traditional rule.17 VI A guilty verdict on a § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of § 846; conspiracy is therefore a lesser included offense of CCE. Because the Government's arguments have not persuaded us otherwise, we adhere to the presumption that Congress intended to authorize only one punishment. Accordingly, "[o]ne of [petitioner's] convictions, as well as its concurrent sentence, is unauthorized punishment for a sepa- rate offense" and must be vacated. Ball, 470 U. S., at 864. 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. 17 In certain circumstances, it may be that the Government will investi- gate and prosecute an individual for one or more § 846 conspiracies without being aware of facts that would justify charging a defendant with a viola- tion of § 848 as well. Moreover, a lesser included § 846 conspiracy may not always be coterminous with the larger CCE. Because neither instance is true here, we need not explore the consequences of our holding today for purposes of the successive prosecution strand of the Double Jeopardy Clause, see Diaz v. United States, 223 U. S. 442, 448­449 (1912); Brown v. Ohio, 432 U. S., at 169, n. 7; see also Garrett, 471 U. S., at 786­793, nor need we address how prior convictions for lesser included § 846 offenses should be handled for purposes of entering judgment if the later § 848 conviction is obtained but then set aside. 517us1$40z 11-06-97 20:20:15 PAGES OPINPGT 308 OCTOBER TERM, 1995 Syllabus O'CONNOR v. CONSOLIDATED COIN CATERERS CORP. certiorari to the united states court of appeals for the fourth circuit No. 95­354. Argued February 27, 1996-Decided April 1, 1996 At age 56, petitioner was fired by respondent corporation and replaced by a 40-year-old worker. He then filed this suit, alleging that his discharge violated the Age Discrimination in Employment Act of 1967 (ADEA). The District Court granted respondent's summary judgment motion, and the Court of Appeals affirmed, holding that petitioner failed to make out a prima facie case of age discrimination under McDonnell Douglas Corp. v. Green, 411 U. S. 792, because he failed to show that he was replaced by someone outside the age group protected by the ADEA. Held: Assuming that Title VII's McDonnell Douglas framework is ap- plicable to ADEA cases, there must be at least a logical connection between each element of the prima facie case and the illegal discrimi- nation. Replacement by someone under 40 fails this requirement. Although the ADEA limits its protection to those who are 40 or older, it prohibits discrimination against those protected employees on the basis of age, not class membership. That one member of the protected class lost out to another member is irrelevant, so long as he lost out because of his age. The latter is more reliably indicated by the fact that his replacement was substantially younger than by the fact that his replacement was not a member of the protected class. 56 F. 3d 542, reversed and remanded. Scalia, J., delivered the opinion for a unanimous Court. George Daly argued the cause for petitioner. With him on the briefs were Paul Alan Levy and Alan B. Morrison. Paul R. Q. Wolfson argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney Gen- eral Patrick, Deputy Solicitor General Bender, C. Gregory Stewart, Gwendolyn Young Reams, Lorraine C. Davis, and Barbara L. Sloan. 517us1$40z 11-06-97 20:20:15 PAGES OPINPGT Cite as: 517 U. S. 308 (1996) 309 Opinion of the Court James B. Spears, Jr., argued the cause for respondent. With him on the brief were Jacob J. Modla and Robert S. Phifer.* Justice Scalia delivered the opinion of the Court. This case presents the question whether a plaintiff alleg- ing that he was discharged in violation of the Age Discrimi- nation in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., must show that he was replaced by someone outside the age group protected by the ADEA to make out a prima facie case under the framework established by McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). Petitioner James O'Connor was employed by respondent Consolidated Coin Caterers Corporation from 1978 until Au- gust 10, 1990, when, at age 56, he was fired. Claiming that he had been dismissed because of his age in violation of the ADEA, petitioner brought suit in the United States District Court for the Western District of North Carolina. After discovery, the District Court granted respondent's motion for summary judgment, 829 F. Supp. 155 (1993), and peti- *Steven S. Zaleznick and Cathy Ventrell-Monsees filed a brief for the American Association of Retired Persons et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Tarra DeShields-Minnis and Andrew H. Baida, Assistant Attorneys General, and by the Attorneys General for their respective States as fol- lows: Winston Bryant of Arkansas, M. Jane Brady of Delaware, Frank J. Kelley of Michigan, Frankie Sue Del Papa of Nevada, Deborah T. Poritz of New Jersey, Mark Barnett of South Dakota, and W. A. Drew Edmond- son of Oklahoma; for the Chamber of Commerce of the United States by Marshall B. Babson, Stanley R. Strauss, Sue J. Henry, Stephen A. Bokat, Robin S. Conrad, and Mona C. Zeiberg; for the Equal Employment Advi- sory Council by Douglas S. McDowell; and for the New England Legal Foundation by Steven S. Ostrach and Cynthia L. Amara. Jack L. Whitacre filed a brief for the National Retail Federation as amicus curiae. 517us1$40k 11-06-97 20:20:15 PAGES OPINPGT 310 O'CONNOR v. CONSOLIDATED COIN CATERERS CORP. Opinion of the Court tioner appealed. The Court of Appeals for the Fourth Cir- cuit stated that petitioner could establish a prima facie case under McDonnell Douglas only if he could prove that (1) he was in the age group protected by the ADEA; (2) he was discharged or demoted; (3) at the time of his discharge or demotion, he was performing his job at a level that met his employer's legitimate expectations; and (4) following his dis- charge or demotion, he was replaced by someone of compara- ble qualifications outside the protected class. Since peti- tioner's replacement was 40 years old, the Court of Appeals concluded that the last element of the prima facie case had not been made out.1 56 F. 3d 542, 546 (1995). Finding that petitioner's claim could not survive a motion for summary judgment without benefit of the McDonnell Douglas pre- sumption (i. e., "under the ordinary standards of proof used in civil cases," 56 F. 3d, at 548), the Court of Appeals af- firmed the judgment of dismissal. We granted O'Connor's petition for certiorari. 516 U. S. 973 (1995). In McDonnell Douglas, we "established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases." St. Mary's Honor Center v. Hicks, 509 U. S. 502, 506 (1993). We held that a plaintiff alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., could establish a prima facie case by showing "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking appli- cants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [the] complainant's qualifications." McDonnell Douglas, 1 The court also concluded that even under a modified version of the McDonnell Douglas prima facie standard which the Fourth Circuit applies to reduction-in-force cases, see Mitchell v. Data General Corp., 12 F. 3d 1310, 1315 (1993), petitioner could not prevail. We limit our review to the Fourth Circuit's treatment of this case as a non-reduction-in-force case. 517us1$40k 11-06-97 20:20:15 PAGES OPINPGT Cite as: 517 U. S. 308 (1996) 311 Opinion of the Court 411 U. S., at 802. Once the plaintiff has met this initial bur- den, the burden of production shifts to the employer "to ar- ticulate some legitimate, nondiscriminatory reason for the employee's rejection." Ibid. If the trier of fact finds that the elements of the prima facie case are supported by a pre- ponderance of the evidence and the employer remains silent, the court must enter judgment for the plaintiff. St. Mary's Honor Center, supra, at 509­510, and n. 3; Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254 (1981). In assessing claims of age discrimination brought under the ADEA, the Fourth Circuit, like others,2 has applied some variant of the basic evidentiary framework set forth in Mc- Donnell Douglas. We have never had occasion to decide whether that application of the Title VII rule to the ADEA context is correct, but since the parties do not contest that point, we shall assume it. Cf. St. Mary's Honor Center, supra, at 506, n. 1 (assuming that "the McDonnell Douglas framework is fully applicable to racial-discrimination-in- employment claims under 42 U. S. C. § 1983"). On that as- sumption, the question presented for our determination is what elements must be shown in an ADEA case to establish the prima facie case that triggers the employer's burden of production. As the very name "prima facie case" suggests, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it 2 See, e. g., Roper v. Peabody Coal Co., 47 F. 3d 925, 926­927 (CA7 1995); Rinehart v. Independence, 35 F. 3d 1263, 1265 (CA8 1994), cert. denied, 514 U. S. 1096 (1995); Seman v. Coplay Cement Co., 26 F. 3d 428, 432, n. 7 (CA3 1994); Roush v. KFC Nat. Mgt. Co., 10 F. 3d 392, 396 (CA6 1993), cert. denied, 513 U. S. 808 (1994); Lindsey v. Prive Corp., 987 F. 2d 324, 326, n. 5 (CA5 1993); Goldstein v. Manhattan Industries, Inc., 758 F. 2d 1435, 1442 (CA11), cert. denied, 474 U. S. 1005 (1985); Haskell v. Kaman Corp., 743 F. 2d 113, 119, and n. 1 (CA2 1984); Cuddy v. Carmen, 694 F. 2d 853, 856­857 (CADC 1982); Douglas v. Anderson, 656 F. 2d 528, 531­532 (CA9 1981); Loeb v. Textron, Inc., 600 F. 2d 1003, 1014­1016 (CA1 1979); Schwager v. Sun Oil Co. of Pa., 591 F. 2d 58, 60­61 (CA10 1979). 517us1$40k 11-06-97 20:20:15 PAGES OPINPGT 312 O'CONNOR v. CONSOLIDATED COIN CATERERS CORP. Opinion of the Court establishes a "legally mandatory, rebuttable presumption," Burdine, supra, at 254, n. 7. The element of replacement by someone under 40 fails this requirement. The discrimi- nation prohibited by the ADEA is discrimination "because of [an] individual's age," 29 U. S. C. § 623(a)(1), though the prohibition is "limited to individuals who are at least 40 years of age," § 631(a). This language does not ban discrimi- nation against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrel- evant, so long as he has lost out because of his age. Or to put the point more concretely, there can be no greater infer- ence of age discrimination (as opposed to "40 or over" dis- crimination) when a 40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced by a 40-year-old. Be- cause it lacks probative value, the fact that an ADEA plain- tiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case. Perhaps some courts have been induced to adopt the prin- ciple urged by respondent in order to avoid creating a prima facie case on the basis of very thin evidence-for example, the replacement of a 68-year-old by a 65-year-old. While the respondent's principle theoretically permits such thin ev- idence (consider the example above of a 40-year-old replaced by a 39-year-old), as a practical matter it will rarely do so, since the vast majority of age-discrimination claims come from older employees. In our view, however, the proper so- lution to the problem lies not in making an utterly irrelevant factor an element of the prima facie case, but rather in recog- nizing that the prima facie case requires "evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion . . . ." Teamsters v. United States, 431 U. S. 324, 358 (1977) (empha- 517us1$40k 11-06-97 20:20:15 PAGES OPINPGT Cite as: 517 U. S. 308 (1996) 313 Opinion of the Court sis added). In the age-discrimination context, such an infer- ence cannot be drawn from the replacement of one worker with another worker insignificantly younger. Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substan- tially younger than the plaintiff is a far more reliable indica- tor of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class. The judgment of the Fourth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. 517us1$41z 02-16-99 20:25:30 PAGES OPINPGT 314 OCTOBER TERM, 1995 Syllabus LONCHAR v. THOMAS, WARDEN certiorari to the united states court of appeals for the eleventh circuit No. 95­5015. Argued December 4, 1995-Decided April 1, 1996 Petitioner Lonchar was sentenced to death for murder nine years ago. In the years following the affirmance of his conviction and sentence, his sister and brother each filed "next friend" state habeas petitions, which Lonchar opposed, and Lonchar filed, and then had dismissed, a state habeas petition. Shortly before his scheduled execution, he filed an- other state habeas petition. When it was denied, he filed this "eleventh hour" federal petition, his first. Reasoning that federal Habeas Corpus Rule 9, not some generalized equitable authority to dismiss, governed the case, the District Court held that Lonchar's conduct in waiting al- most six years to file his federal petition did not constitute an independ- ent basis for rejecting the petition and granted a stay to permit time for consideration of other grounds for dismissal raised by the State. The Court of Appeals vacated the stay. It held that equitable doctrines independent of Rule 9 applied, relying chiefly on this Court's per curiam order in Gomez v. United States Dist. Court for Northern Dist of Cal., 503 U. S. 653. Setting aside the Rules and traditional habeas doctrines, the court concluded that Lonchar did not merit equitable relief. Held:1. The principle of Barefoot v. Estelle, 463 U.S. 880, applies when a district court is faced with a request for a stay in a first federal habeas case: If the district court cannot dismiss the petition on the merits be- fore the scheduled execution, it is obligated to address the merits and must issue a stay to prevent the case from becoming moot. If the court lacks authority to directly dispose of the petition on the merits, it would abuse its discretion by attempting to achieve the same result indirectly by denying a stay. Since Lonchar's claims certainly seem substantial enough to prevent dismissal under Habeas Corpus Rule 4 and the State does not argue to the contrary, the courts below correctly assumed that he could not be denied a stay unless his petition was properly subject to dismissal. This Court's Gomez order has not displaced Barefoot's rationale with one permitting denial of a stay in first federal habeas cases, even when the district court lacks authority to dismiss the peti- tion on the merits. Gomez did not involve a denial of a stay in a case in which the lower court had no authority to dismiss the petition or a 517us1$41z 02-16-99 20:25:30 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 315 Syllabus first habeas petition, and it neither discussed nor cited Barefoot, much less repudiated its rationale. Pp. 319­321. 2. The Court of Appeals erred in dismissing Lonchar's first federal petition for special ad hoc "equitable" reasons not encompassed within the relevant statutes, the Federal Habeas Corpus Rules, or prior prece- dents. First, the history of the Great Writ reveals, not individual judges dismissing writs for ad hoc reasons, but, rather, the gradual evo- lution of more formal judicial, statutory, or rules-based doctrines of law that regularize and thereby narrow the discretion that individual judges can freely exercise. See, e. g., McCleskey v. Zant, 499 U. S. 467, 479­ 489. Second, the fact that the writ has been called an "equitable" rem- edy, see, e. g., Gomez, supra, at 653­654, does not authorize a court to ignore this body of statutes, rules, and precedents. Rather, "courts of equity must be governed by rules and precedents no less than the courts of law," Missouri v. Jenkins, 515 U. S. 70, 127 (Thomas, J., concurring). The arguments against ad hoc departure from settled rules seem partic- ularly strong when dismissal of a first habeas petition is at issue, since such dismissal denies the petitioner the protections of the Great Writ entirely. See Ex parte Yerger, 8 Wall. 85, 95. Third, Rule 9(a)-which permits courts to dismiss a habeas petition when "it appears that the state . . . has been prejudiced in its ability to respond . . . by delay in [the petition's] filing"-specifically and directly addresses the delay fac- tor that led the Court of Appeals to dismiss Lonchar's petition. The District Court was not asked to, and did not, make a finding of prejudice in this case, whereas the Rule's history makes plain that the prejudice requirement represents a critical element in the balancing of interests undertaken by Congress and the Rule's framers, which courts may not undermine through the exercise of background equitable powers. See Bank of Nova Scotia v. United States, 487 U. S. 250, 255. Fourth, con- trary to the Court of Appeals' view, Gomez, supra, at 653­654, did not authorize ad hoc equitable departures from the Habeas Corpus Rules and did not purport to work a significant change in the law applicable to the dismissal of first habeas petitions. Fifth, the fact that Lonchar filed his petition at the "eleventh hour" does not lead to a different conclusion. Gomez, supra, at 654, and, e. g., Sawyer v. Whitley, 505 U. S. 333, 341, n. 7, distinguished. The complexity inherent in develop- ing fair and effective rules to minimize the harms created by last-minute petitions in capital cases offers a practical caution against a judicial at- tempt, outside the framework of the Habeas Rules, to fashion reforms concerning first federal habeas petitions. Sixth, a different result is not warranted by the special circumstances in this case, including the "next friend" petitions filed by Lonchar's siblings, his filing and later with- drawal of his own state habeas petition, and the fact that his motive for 517us1$41z 02-16-99 20:25:30 PAGES OPINPGT 316 LONCHAR v. THOMAS Opinion of the Court filing this federal habeas petition was in part to delay his execution. The Court expresses no view about the proper outcome of the Rules' application in this case. Pp. 322­332. 58 F. 3d 590, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Rehnquist, C. J., filed an opinion concurring in the judgment, in which Scalia, Kennedy, and Thomas, JJ., joined, post, p. 334. Donald B. Verrilli, Jr., argued the cause for petitioner. With him on the briefs were Paul M. Smith and Clive A. Stafford Smith. Mary Beth Westmoreland, Senior Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Michael J. Bowers, Attorney General, and Susan V. Boleyn, Senior Assistant Attorney General. Justice Breyer delivered the opinion of the Court. This case asks us to decide whether a federal court may dismiss a first federal habeas petition for general "equitable" reasons beyond those embodied in the relevant statutes, Federal Habeas Corpus Rules, and prior precedents. We decide that the Court of Appeals erred in doing so in this case. The primary "equitable" consideration favoring dis- missal of the "eleventh hour" petition before us is serious delay. A Federal Habeas Corpus Rule deals specifically with delay. See 28 U. S. C. § 2254 Rule 9(a) (permitting courts to dismiss a habeas petition when "it appears that the state . . . has been prejudiced in its ability to respond . . . by delay in its filing"). And, in our view, this Rule, not some general "equitable" power to create exceptions to the Rule, should have determined whether or not the petition's dis- missal was appropriate. I Petitioner Larry Lonchar was sentenced to death for mur- der nine years ago. He filed this "eleventh hour" petition 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 317 Opinion of the Court for habeas corpus-his first federal habeas corpus petition- on June 28, 1995, the day of his scheduled execution. To understand the procedural significance of this petition, the nature of the delay here at issue, and other relevant special features of this case, we must consider the petition in the context of earlier proceedings, which, for ease of exposition, we divide into five stages: Stage One: Trial, Appeal, Execution Date: 1987­1990. In 1987, Lonchar was convicted in state court for murdering three people and sentenced to death by electrocution. A mandatory state-court appeal led to affirmance of the convic- tion and sentence in 1988. The trial judge then issued a death warrant for the week of March 23, 1990. Throughout these proceedings Lonchar said he wanted to die and refused to cooperate with his lawyer or to attend his trial. He also attempted (unsuccessfully) to waive his mandatory appeal, declined to authorize any collateral attacks on his conviction or sentence, and wrote the trial judge asking for an execu- tion date. Stage Two: Sister's "Next Friend" Habeas: March 1990­ February 1993. Two days before the scheduled execution, Lonchar's sister, Chris Kellog, filed a "next friend" habeas petition in state court, claiming Lonchar was incompetent. Lonchar opposed the action and eventually the state and fed- eral courts, at trial and appellate levels, held that Lonchar was competent and dismissed the petition. The state courts again issued a death warrant, this time for the week of Feb- ruary 24, 1993. Stage Three: Lonchar's own State Habeas: February 1993­ May 1995. After Lonchar's lawyer told him that his brother, Milan, was threatening to kill himself because of Lonchar's execution, Lonchar authorized a habeas petition in state court and obtained a stay of execution. He subse- quently changed his mind and told the judge he did not want to proceed. Although his lawyers objected that Lonchar was incompetent to make this decision, the judge dismissed 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT 318 LONCHAR v. THOMAS Opinion of the Court the petition without prejudice. A death warrant was issued for the week of June 23, 1995. Stage Four: Brother's "Next Friend" Habeas: June 20­ June 23, 1995. Three days before the scheduled execution, Lonchar's brother, Milan, filed another "next friend" habeas petition in state court. Lonchar again opposed it. Within three days, Milan's petition met the same fate as his sister's earlier petition. That is to say, federal and state courts, at trial and appellate levels, all found Lonchar competent and denied the petition. Stage Five: Lonchar's Current Habeas: June 23, 1995­ Present. Immediately thereafter, after discussions with his lawyers, Lonchar filed another state habeas petition contain- ing 22 claims, including one that challenged the method of execution. He told the state-court judge that he wished to pursue each of the 22 claims, but was litigating them only to delay his execution, with the hope that the State would change the execution method to lethal injection so he could donate his organs. The state courts stayed the execution briefly, and then, two days later, denied the petition. Lonchar immediately filed his first federal habeas petition, which set forth the same 22 claims. The State asked that Lonchar's federal petition be dis- missed, stressing what it called Lonchar's "inequitable con- duct" in waiting almost six years, and until the last minute, to file a federal habeas petition. The District Court held that this could not constitute an independent basis for reject- ing the petition. In its view, Habeas Corpus Rule 9, not some generalized equitable authority to dismiss, governed the case. And, it held, Rule 9's authority to dismiss for "abuse of the writ" applied to "second or successive" habeas petitions, not to a first petition, such as Lonchar's. See Ha- beas Corpus Rule 9(b) ("A second or successive petition may be dismissed if . . . the judge finds that the failure of the petitioner to assert those grounds in a prior petition consti- tuted an abuse of the writ") (emphasis added). The District 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 319 Opinion of the Court Court therefore granted a stay to permit time for consider- ation of the State's other grounds in its motion to dismiss. The next day the Court of Appeals for the Eleventh Cir- cuit vacated the stay. 58 F. 3d 590 (1995). It pointed out that the District Court had "based its holding exclusively on Rule 9." Id., at 592. It held that "equitable doctrines independent of Rule 9" applied, relying chiefly on this Court's per curiam order in Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653 (1992). 58 F. 3d, at 593. And, setting aside the Rules and traditional habeas doctrines, the court concluded that, in the circum- stances of this case, "Lonchar does not merit equitable re- lief." Ibid. As mentioned above, we granted certiorari in order to con- sider whether a federal court may, in such circumstances, dismiss a valid first habeas petition for "equitable reasons" other than reasons listed in federal statutes and Rules, or well established in this Court's precedents. II We first discuss a preliminary matter. We have before us a Court of Appeals order that vacates a stay, not an order to dismiss the habeas petition. We believe, however, that this fact makes no difference. That is, the Court of Appeals order vacating the stay is lawful only if dismissal of the peti- tion would have been lawful. By bringing about Lonchar's execution, vacating the stay would prevent the courts from considering the petition's merits, just as would its dismissal. This Court has previously considered, in a slightly differ- ent context, whether a court may allow a first federal habeas petition to be mooted by an execution, even though the court lacked the authority to dispose of the petition on the merits. In Barefoot v. Estelle, 463 U. S. 880 (1983), the Court consid- ered the proper standard for granting or denying a stay pending consideration of an appeal from a dismissal of a first federal habeas petition. The Court stated: 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT 320 LONCHAR v. THOMAS Opinion of the Court "When a certificate of probable cause is issued by the district court, as it was in this case, or later by the court of appeals, petitioner must then be afforded an opportu- nity to address the merits, and the court of appeals is obligated to decide the merits of the appeal. Accord- ingly, a court of appeals, where necessary to prevent the case from becoming moot by the petitioner's execution, should grant a stay of execution pending disposition of an appeal when a condemned prisoner obtains a certifi- cate of probable cause on his initial habeas appeal." Id., at 893­894. We believe that the same principle applies when a district court is faced with a request for a stay in a first federal habeas case: If the district court cannot dismiss the petition on the merits before the scheduled execution, it is obligated to address the merits and must issue a stay to prevent the case from becoming moot. That is, if the district court lacks authority to directly dispose of the petition on the merits, it would abuse its discretion by attempting to achieve the same result indirectly by denying a stay. Of course, a district court is authorized to dismiss a petition summarily when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court," Habeas Corpus Rule 4, just as a court of appeals is not required to address an appeal that fails to meet the certificate of probable cause standard of a "substantial showing of the denial of a federal right," see Barefoot, 463 U. S., at 893­894. And, as is also true of consideration of appeals, a district court may, within the constraints of due process, expedite proceedings on the merits. Id., at 894­895. In this case, Lonchar's claims certainly seem substantial enough to prevent dismissal under Rule 4, and the State does not argue to the contrary. That being so, we believe that the District Court and Court of Appeals were correct to as- 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 321 Opinion of the Court sume that Lonchar could not be denied a stay unless his peti- tion was properly subject to dismissal. See App. 62, 63­64; 58 F. 3d, at 593. The concurrence argues that the Court's decision in Gomez v. United States Dist. Court for Northern Dist. of Cal., supra, displaced the rationale of Barefoot, relying particu- larly on the statement that a "court may consider the last- minute nature of an application to stay execution in deciding whether to grant equitable relief." 503 U. S., at 654. The concurrence understands this statement to authorize denial of a stay, for generalized equitable reasons, in first federal habeas cases, even when the district court lacks authority to dismiss the petition on the merits. We do not believe this sentence, or the rest of the Court's order in Gomez, supports this conclusion. First, Gomez did not involve denial of a stay in a case in which the lower court had no authority to dismiss the peti- tion. Instead, as the concurrence concedes, post, at 338, the case could have been dismissed as an "abuse of the writ." See 503 U. S., at 653­654. Second, Gomez involved a fifth attempt to secure collateral review, not a first habeas peti- tion. Barefoot indicated that stays in "[s]econd and succes- sive federal habeas corpus petitions present a different issue," since in such cases it is more likely that " `a con- demned inmate might attempt to use repeated petitions and appeals as a mere delaying tactic,' " and because this danger is specially recognized and addressed in the Habeas Corpus Rules. Barefoot, supra, at 895. Finally, the concurrence's reading of Gomez seriously conflicts with Barefoot's well- settled treatment of first habeas petitions. We decline to adopt such a far-reaching interpretation of this per curiam order, especially since Gomez did not concern a first habeas petition, and since the Gomez order did not discuss (or even cite) Barefoot, much less explicitly repudiate its rationale. 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT 322 LONCHAR v. THOMAS Opinion of the Court III We turn, then, to the main question: Could the Court of Appeals properly dismiss this first habeas petition for special ad hoc "equitable" reasons not encompassed within the framework of Rule 9? We conclude that it could not. First, the history of the Great Writ of Habeas Corpus re- veals, not individual judges dismissing writs for ad hoc rea- sons, but, rather, the gradual evolution of more formal judi- cial, statutory, or rules-based doctrines of law. See, e. g., McCleskey v. Zant, 499 U. S. 467, 479­489 (1991); Barefoot, supra, at 892; Kuhlmann v. Wilson, 477 U. S. 436, 451 (1986) (plurality opinion); Sanders v. United States, 373 U. S. 1, 15 (1963); Townsend v. Sain, 372 U. S. 293, 313 (1963). In ear- lier times, the courts followed comparatively simple rules, even occasionally disregarding complex procedural doc- trines, such as res judicata, see McCleskey, supra, at 479, as they exercised the writ in light of its most basic purpose, avoiding serious abuses of power by a government, say a king's imprisonment of an individual without referring the matter to a court. See, e. g., L. Yackle, Postconviction Rem- edies § 4, pp. 9­11 (1981); W. Duker, A Constitutional History of Habeas Corpus 4­6 (1980); W. Church, A Treatise on the Writ of Habeas Corpus §§ 1­46, pp. 2­40 (2d ed. 1893). As the writ has evolved into an instrument that now demands not only conviction by a court of competent jurisdiction, see In re Coy, 127 U. S. 731, 756­758 (1888), but also application of basic constitutional doctrines of fairness, see Jones v. Cunningham, 371 U. S. 236, 243 (1963), Congress, the Rule writers, and the courts have developed more complex proce- dural principles that regularize and thereby narrow the dis- cretion that individual judges can freely exercise. Those principles seek to maintain the courts' freedom to issue the writ, aptly described as the "highest safeguard of liberty," Smith v. Bennett, 365 U. S. 708, 712 (1961), while at the same time avoiding serious, improper delay, expense, complexity, and interference with a State's interest in the "finality" of 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 323 Opinion of the Court its own legal processes. Withrow v. Williams, 507 U. S. 680, 698 (1993) (O'Connor, J., concurring in part and dissenting in part); McCleskey, supra, at 490­492; Reed v. Ross, 468 U. S. 1, 10 (1984). These legal principles are embodied in statutes, rules, precedents, and practices that control the writ's exercise. Within constitutional constraints they re- flect a balancing of objectives (sometimes controversial), which is normally for Congress to make, but which courts will make when Congress has not resolved the question. See Brecht v. Abrahamson, 507 U. S. 619, 632­633 (1993). Second, the fact that the writ has been called an "equita- ble" remedy, see, e. g., Gomez, supra, at 653­654, does not authorize a court to ignore this body of statutes, rules, and precedents. "There is no such thing in the Law, as Writs of Grace and Favour issuing from the Judges." Opinion on the Writ of Habeas Corpus, Wilm. 77, 87, 97 Eng. Rep. 29, 36 (1758) (Wilmot, J.). Rather, "courts of equity must be governed by rules and precedents no less than the courts of law." Missouri v. Jenkins, 515 U. S. 70, 127 (1995) (Thomas, J., concurring). See also Albemarle Paper Co. v. Moody, 422 U. S. 405, 417 (1975); The Federalist No. 78, p. 528 (J. Cooke ed. 1961). As Selden pointed out so many years ago, the alternative is to use each equity chancellor's conscience as a measure of equity, which alternative would be as arbitrary and uncertain as measuring distance by the length of each chancellor's foot. See 1 J. Story, Commentaries on Equity Jurisprudence 16 (13th ed. 1886). That is why this Court, in McCleskey, said that concern about habeas petition abuses has led to "a complex and evolv- ing body of equitable principles informed and controlled by historical usage, statutory developments, and judicial deci- sions." 499 U. S., at 489 (emphasis added). And it is why this Court, in McCleskey, also reaffirmed the importance, " `in order to preclude individualized enforcement of the Con- stitution in different parts of the Nation,' " of " `lay[ing] down as specifically as the nature of the problem permits the 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT 324 LONCHAR v. THOMAS Opinion of the Court standards or directions that should govern the District Judges in the disposition of applications for habeas corpus by prisoners under sentence of State Courts.' " Id., at 496 (quoting Brown v. Allen, 344 U. S. 443, 501­502 (1953) (opin- ion of Frankfurter, J.)). After all, equitable rules that guide lower courts reduce uncertainty, avoid unfair surprise, minimize disparate treat- ment of similar cases, and thereby help all litigants, including the State, whose interests in "finality" such rules often fur- ther. See Barefoot, 463 U. S., at 892; Kuhlmann, supra, at 451; Townsend, supra, at 313. See also Coleman v. Thomp- son, 501 U. S. 722, 750 (1991) (barring consideration of claims procedurally defaulted in state court absent cause and preju- dice or a fundamental miscarriage of justice); Teague v. Lane, 489 U. S. 288, 299­316 (1989) (plurality opinion) (barring from habeas proceedings federal claims based on certain "new rules" of constitutional law); Rose v. Lundy, 455 U. S. 509, 522 (1982) ("[A] district court must dismiss habeas peti- tions containing both unexhausted and exhausted claims"). And the arguments against ad hoc departure from settled rules would seem particularly strong when dismissal of a first habeas petition is at issue. Dismissal of a first federal habeas petition is a particularly serious matter, for that dis- missal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty. See Ex parte Yerger, 8 Wall. 85, 95 (1869) (the writ "has been for centuries esteemed the best and only sufficient defence of personal freedom"); Withrow, supra, at 700 (O'Connor, J., concurring in part and dissenting in part) (de- cisions involving limitation of habeas relief "warrant re- straint"). Even in the context of "second and successive" petitions-which pose a greater threat to the State's inter- ests in "finality" and are less likely to lead to the discovery of unconstitutional punishments-this Court has created careful rules for dismissal of petitions for abuse of the writ. See McCleskey, supra. 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 325 Opinion of the Court This is not to say that a district court has no discretion in dealing with first federal habeas petitions. The Habeas Corpus Rules themselves provide district courts with ample discretionary authority to tailor the proceedings to dispose quickly, efficiently, and fairly of first habeas petitions that lack substantial merit, while preserving more extensive pro- ceedings for those petitions raising serious questions. For instance, as noted above, the Rules permit a district court to dismiss summarily a first petition without waiting for the State's response if "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief." Habeas Corpus Rule 4. Moreover, even if the petition cannot be dismissed under that standard, the district court is still authorized to "take such other action as the judge deems appropriate." Ibid. The Advisory Committee's Note makes clear that this provision was "designed to afford the judge flexibility in a case where either dismissal or an order to answer may be inappro- priate. For example, the judge may want to authorize the respondent to make a motion to dismiss based upon information furnished by respondent, which may show that petitioner's claims have already been decided on the merits in a federal court; that petitioner has failed to exhaust state remedies; that the petitioner is not in cus- tody within the meaning of 28 U. S. C. § 2254; or that a decision in the matter is pending in state court. In these situations, a dismissal may be called for on proce- dural grounds, which may avoid burdening the respond- ent with the necessity of filing an answer on the substan- tive merits of the petition. In other situations, the judge may want to consider a motion from respondent to make the petition more certain. Or the judge may want to dismiss some allegations in the petition, requir- ing the respondent to answer only those claims which appear to have some arguable merit." 28 U. S. C., p. 478. 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT 326 LONCHAR v. THOMAS Opinion of the Court The Rules also afford the district court substantial discretion in the conduct of a case once an answer has been ordered. It may decide to order expansion of the record to facilitate a disposition on the merits without the need for an evidentiary hearing. Habeas Corpus Rule 7. Discovery is available only if "the judge in the exercise of his discretion and for good cause shown grants leave." Habeas Corpus Rule 6(a). And the district court is afforded a degree of discretion in determining whether to hold an evidentiary hearing. See Habeas Corpus Rule 8(a); Townsend, 372 U. S., at 318; Keeney v. Tamayo-Reyes, 504 U. S. 1, 11­12 (1992). Thus, the district court is afforded substantial discretion to expe- dite proceedings, cf. Barefoot, supra, at 894­895, in order quickly to dispose of meritless first petitions while at the same time preserving the important right of those raising serious habeas questions to have their claims thoroughly considered by the district court. Third, a specific federal Habeas Corpus Rule, Rule 9(a), directly addresses the primary factor-delay-that led the Court of Appeals to dismiss the petition for "equitable rea- sons." That Rule says: "Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an of- ficer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state oc- curred." (Emphasis added.) The Rule applies because Lonchar's petition is a "delayed petition." And the language of the Rule requires, as a con- dition of dismissal, a finding of "prejudice," which the Dis- trict Court was not asked to, and did not, make. (Because the State specifically disavows reliance upon Rule 9(a), we do not consider what would constitute sufficient "prejudice" 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 327 Opinion of the Court to justify application of the Rule in the context of a last- minute habeas petition.) Instead, it asked the Court of Appeals to develop an equitable rule under which a "peti- tion may be dismissed" for "delay in its filing" without the prejudice precondition. But the history of the Rule makes plain that the prejudice requirement represents a critical element in the balancing of interests undertaken by Congress and the framers of the Rule which courts may not undermine through the exercise of background equitable powers. See Bank of Nova Scotia v. United States, 487 U. S. 250, 255 (1988) ("The balance struck by the Rule between societal costs and the rights of the accused may not casually be overlooked `because a court has elected to analyze the question under the supervisory power ' " (quoting United States v. Payner, 447 U. S. 727, 736 (1980)). The Advisory Committee's Note indicates that the very maxim upon which the Court of Appeals relied as au- thority for acting outside the Rules-the equitable maxim that "the petitioner's conduct may . . . disentitle him to re- lief," 58 F. 3d, at 592-was taken into account when the Rule's framers drafted Rule 9(a) and included its prejudice requirement. See Advisory Committee's Note on Habeas Corpus Rule 9, 28 U. S. C., p. 484. Moreover, Congress, when considering a draft of the Rule, see 28 U. S. C. § 2074, directly focused upon the prejudice requirement and re- jected, by removing from the draft Rule, a provision that would have eased the burden of the prejudice requirement by presuming prejudice after a delay of five years. Com- pare Rules of Procedure: Communication from the Chief Justice of the United States Transmitting Rules and Forms Governing Proceedings Under Sections 2254 and 2255 of Title 28, H. R. Doc. No. 94­464, pp. 38­39 (1976), with Act of Sept. 28, 1976, Pub. L. 94­426, § 2(9), 90 Stat. 1335. See also H. R. Rep. No. 94­1471, p. 5 (1976) ("[I]t is unsound policy to require the defendant to overcome a presumption of preju- dice"). Cf. McCarthy v. Madigan, 503 U. S. 140, 144 (1992) 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT 328 LONCHAR v. THOMAS Opinion of the Court (Even in an area, such as exhaustion, where judges have con- siderable discretionary authority, "appropriate deference to Congress' power to prescribe the basic procedural scheme under which a claim may be heard in a federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme"). We recognize there is considerable debate about whether the present Rule properly balances the relevant competing interests. See, e. g., U. S. Judicial Conference, Ad Hoc Com- mittee on Federal Habeas Corpus in Capital Cases, Commit- tee Report and Proposal 6, 18­21 (1989) (hereinafter Powell Report) (suggesting a statute of limitations for habeas peti- tions); American Bar Association, Toward a More Just and Effective System of Review in State Death Penalty Cases 29­30 (1990) (hereinafter ABA Report) (same). But, to de- bate the present Rule's effectiveness is to affirm, not to deny, its applicability. Moreover, that debate's focus upon Con- gress also reveals the institutional inappropriateness of amending the Rule, in effect, through an ad hoc judicial exception, rather than through congressional legislation or through the formal rulemaking process. See Vasquez v. Hillery, 474 U. S. 254, 265 (1986) ("[D]espite many attempts in recent years, Congress has yet to create a statute of limi- tations for federal habeas corpus actions. We should not lightly create a new judicial rule . . . to achieve the same end") (citation omitted); Appendix to this opinion (listing more than 80 bills that have proposed a statute of limitations for federal habeas cases since Vasquez, none of which has been adopted). Fourth, contrary to the Court of Appeals' view, we do not believe that this Court, in Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653 (1992), authorized ad hoc equitable departures from the Habeas Corpus Rules. The Court of Appeals relied heavily on the statement: 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 329 Opinion of the Court "Even if we were to assume, however, that Harris could avoid the application of McCleskey to bar his claim, we would not consider it on the merits. Whether his claim is framed as a habeas petition or as a [42 U. S. C.] § 1983 action, Harris seeks an equitable rem- edy." Id., at 653­654. But, this statement, understood in context, does not mean that this Court authorized setting aside the Habeas Corpus Rules and refusing to consider a first habeas petition for generalized "equitable" reasons. As we explained above, Gomez was not a first habeas petition. Harris, after bring- ing four habeas petitions, argued that he still could raise a "method of execution" claim in a last-minute § 1983 action, to which habeas rules, like McCleskey's abuse of the writ doc- trine, would not apply. The quoted sentence simply says that these rules would apply, even if § 1983 were also a proper vehicle for his "method of execution" claim, since Harris was still seeking equitable relief and the equitable rationale underlying McCleskey's abuse of the writ doc- trine-avoiding, among other things, "last-minute attempts to manipulate the judicial process," 503 U. S., at 654; Mc- Cleskey, 499 U. S., at 484­485, 491­493-would apply to a suit challenging the method of execution, regardless of the technical form of action. Gomez did not, and did not purport to, work a significant change in the law applicable to the dismissal of first habeas petitions. Fifth, the fact that Lonchar filed his petition at the "elev- enth hour" does not lead to a different conclusion. We recognize that the Court in Gomez said that "[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief." 503 U. S., at 654. And this Court has made similar state- ments in other cases. See, e. g., Sawyer v. Whitley, 505 U. S. 333, 341, n. 7 (1992) (judge may resolve doubts against peti- tioners who "delay their filings until the last minute with a view to obtaining a stay because the district court will lack 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT 330 LONCHAR v. THOMAS Opinion of the Court time to give them the necessary consideration before the scheduled execution"); Herrera v. Collins, 506 U. S. 390, 425­ 426 (1993) (O'Connor, J., concurring). These statements do not help the State, however, for they all involve "second or successive" habeas petitions. The Rules specifically authorize dismissal of those petitions for "abuse of the writ." Habeas Corpus Rule 9(b). See also 28 U. S. C. § 2244(b) (authorizing dismissal when "the applicant has . . . deliberately withheld the newly asserted ground or otherwise abused the writ") (emphasis added). McCleskey gives content to the notion of "abuse of the writ," as do the cases just mentioned. These statements, therefore, reflect an effort to follow and to apply the Habeas Corpus Rules, not an effort to develop law outside the Rules. Indeed, to try to devise some sensible way of supplement- ing first federal habeas petition rules with ad hoc equitable devices would prove difficult. As we discussed, supra, at 324, the interest in permitting federal habeas review of a first petition is quite strong. And, given the importance of a first federal habeas petition, it is particularly impor- tant that any rule that would deprive inmates of all access to the writ should be both clear and fair. As two prominent bodies charged with developing proposals for habeas law reform have pointed out, developing fair and effective rules to minimize the harms created by last-minute petitions in capital cases is quite complicated, requiring consideration of issues such as the State's control over setting execu- tion dates, the time needed to exhaust state remedies, the common practice of substituting specialized capital counsel for habeas, and the time needed by habeas counsel to inves- tigate claims, some of which (such as ineffective assistance of counsel) often cannot be raised on direct appeal. See ABA Report 26­29, 114­134; id., at 29 ("In a system of re- view that employs artificial execution dates as a catalyst, there are many eleventh hours and many last minutes, be- cause, if the petitioner does not seek a stay of execution at 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 331 Opinion of the Court virtually every level, the execution is imminent"); Powell Report 1 ("[P]risoners often cannot obtain qualified counsel until execution is imminent"). These bodies, consequently, have proposed a comprehensive set of interrelated changes, see ABA Report 5­39; Powell Report 5­7, as have recent legislative proposals. See, e. g., H. R. 3, 104th Cong., 1st Sess. (1995); H. R. 729, 104th Cong., 1st Sess. (1995); H. R. 2703, 104th Cong., 1st Sess. (1995); S. 3, 104th Cong., 1st Sess. (1995); S. 623, 104th Cong., 1st Sess. (1995); S. 735, 104th Cong., 1st Sess. (1995). This complexity offers a practical caution against a judicial attempt, outside the framework of the Habeas Corpus Rules, to fashion similar reforms con- cerning first federal habeas petitions. Sixth, the special circumstances in this case-other than delay-do not warrant a different result. The earlier ha- beas petitions brought by Lonchar's sister and brother are beside the point. Lonchar did not assert his claims in those proceedings, nor did he conspire with his siblings to delay his execution. To the contrary, he opposed their petitions and prevailed in his opposition. See App. 22, 35, 48. These "next friend" petitions neither aggravate nor mitigate Lonchar's delay in filing his own petition during those six years. Lonchar's filing and later withdrawal of his own state habeas petition would seem similarly beside the point. At most, the assertion and withdrawal of that petition would create a potential ground for a state-law procedural bar to a second state petition, which, in certain circumstances, might also prevent litigation of similar claims in federal court. See Coleman, 501 U. S., at 729­732. The State (despite its apparent agreement to Lonchar's withdrawal of the state petition "without prejudice," see App. 34, 161­163) has asserted just such a bar. It is free to litigate the matter on remand. Nor do we believe that Lonchar's motive for filing this fed- eral habeas petition can make a critical difference. Lonchar 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT 332 LONCHAR v. THOMAS Opinion of the Court did say that he filed this petition to delay his execution with the hope that the State would change its execution method. But Lonchar's petition also requested the traditional habeas relief of a new trial or resentencing, App. 362, and he told the District Court specifically that he had considered each and every claim and wanted the court to hear them. Nor- mally courts will not look behind an action that states a valid legal claim on its face in order to try to determine the com- parative weight a litigant places on various subjective rea- sons for bringing the claim. A valid antitrust complaint or environmental action, for example, does not suddenly become invalid simply because the litigant is subjectively indifferent about receiving the requested equitable relief, but instead primarily wants to please his or her family or obtain revenge. More importantly, litigation about a petitioner's subjective motivations risks adding to the complexity of habeas litiga- tion, asking a subjective question (about the petitioner's true motives) that is often unanswerable and the very asking of which may encourage and reward the disingenuous. See Murray v. Carrier, 477 U. S. 478, 487 (1986) (rejecting a sub- jective test for determining "cause" for procedural default, in part because under such a rule "federal habeas courts would routinely be required to hold evidentiary hearings to deter- mine what prompted counsel's failure to raise the claim in question"). In sum, we believe that this case should have been exam- ined within the framework of the Habeas Corpus Rules and settled precedents, not according to generalized equitable considerations outside that framework. We, of course, ex- press no view about the proper outcome of the application of the Rules. 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. 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 333 Appendix to opinion of the Court APPENDIX TO OPINION OF THE COURT In the last 10 years, bills proposing a statute of limitations for federal habeas corpus petitions have been introduced every year in Congress, more than 80 bills in all. See S. 2301, 99th Cong., 2d Sess. (1986); S. 2850, 99th Cong., 2d Sess. (1986); H. R. 72, 100th Cong., 1st Sess. (1987); H. R. 73, 100th Cong., 1st Sess. (1987); H. R. 1333, 100th Cong., 1st Sess. (1987); H. R. 3777, 100th Cong., 1st Sess. (1987); S. 260, 100th Cong., 1st Sess. (1987); S. 1285, 100th Cong., 1st Sess. (1987); S. 1970, 100th Cong., 1st Sess. (1987); H. R. 5217, 100th Cong., 2d Sess. (1988); H. R. 1090, 101st Cong., 1st Sess. (1989); H. R. 1953, 101st Cong., 1st Sess. (1989); H. R. 2709, 101st Cong., 1st Sess. (1989); H. R. 3119, 101st Cong., 1st Sess. (1989); S. 88, 101st Cong., 1st Sess. (1989); S. 271, 101st Cong., 1st Sess. (1989); S. 1225, 101st Cong., 1st Sess. (1989); S. 1228, 101st Cong., 1st Sess. (1989); S. 1970, 101st Cong., 1st Sess. (1989); S. 1971, 101st Cong., 1st Sess. (1989); H. R. 3918, 101st Cong., 2d Sess. (1990); H. R. 4079, 101st Cong., 2d Sess. (1990); H. R. 4737, 101st Cong., 2d Sess. (1990); H. R. 4820, 101st Cong., 2d Sess. (1990); H. R. 5055, 101st Cong., 2d Sess. (1990); H. R. 5269, 101st Cong., 2d Sess. (1990); S. 2245, 101st Cong., 2d Sess. (1990); S. 2695, 101st Cong., 2d Sess. (1990); H. R. 18, 102d Cong., 1st Sess. (1991); H. R. 365, 102d Cong., 1st Sess. (1991); H. R. 1400, 102d Cong., 1st Sess. (1991); H. R. 3371, 102d Cong., 1st Sess. (1991); S. 19, 102d Cong., 1st Sess. (1991); S. 148, 102d Cong., 1st Sess. (1991); S. 149, 102d Cong., 1st Sess. (1991); S. 620, 102d Cong., 1st Sess. (1991); S. 635, 102d Cong., 1st Sess. (1991); S. 1151, 102d Cong., 1st Sess. (1991); S. 1241, 102d Cong., 1st Sess. (1991); S. 1335, 102d Cong., 1st Sess. (1991); S. 2305, 102d Cong., 2d Sess. (1992); S. 3292, 102d Cong., 2d Sess. (1992); H. R. 2217, 103d Cong., 1st Sess. (1993); H. R. 2321, 103d Cong., 1st Sess. (1993); H. R. 2847, 103d Cong., 1st Sess. (1993); H. R. 2872, 103d Cong., 1st Sess. (1993); H. R. 3131, 103d Cong., 1st Sess. (1993); H. R. 3315, 103d Cong., 1st Sess. (1993); S. 8, 103d Cong., 1st Sess. 517us1$41q 02-16-99 20:25:31 PAGES OPINPGT 334 LONCHAR v. THOMAS Rehnquist, C. J., concurring in judgment (1993); S. 38, 103d Cong., 1st Sess. (1993); S. 47, 103d Cong., 1st Sess. (1993); S. 1356, 103d Cong., 1st Sess. (1993); S. 1441, 103d Cong., 1st Sess. (1993); S. 1488, 103d Cong., 1st Sess. (1993); S. 1607, 103d Cong., 1st Sess. (1993); S. 1657, 103d Cong., 1st Sess. (1993); H. R. 4018, 103d Cong., 2d Sess. (1994); H. R. 4055, 103d Cong., 2d Sess. (1994); H. R. 4079, 103d Cong., 2d Sess. (1994); H. R. 4092, 103d Cong., 2d Sess. (1994); H. R. 4197, 103d Cong., 2d Sess. (1994); H. R. 4848, 103d Cong., 2d Sess. (1994); H. R. 5008, 103d Cong., 2d Sess. (1994); H. R. 5134, 103d Cong., 2d Sess. (1994); S. 2389, 103d Cong., 2d Sess. (1994); H. R. 3, 104th Cong., 1st Sess. (1995); H. R. 729, 104th Cong., 1st Sess. (1995); H. R. 920, 104th Cong., 1st Sess. (1995); H. R. 2703, 104th Cong., 1st Sess. (1995); S. 3, 104th Cong., 1st Sess. (1995); S. 623, 104th Cong., 1st Sess. (1995); S. 735, 104th Cong., 1st Sess. (1995); S. 816, 104th Cong., 1st Sess. (1995). Chief Justice Rehnquist, with whom Justice Scalia, Justice Kennedy, and Justice Thomas join, concurring in the judgment. I agree with the Court that the judgment of the Court of Appeals should be reversed, but I am in sufficient disagree- ment with the Court's reasoning to write separately. I dis- agree with the Court's statement that "the Court of Appeals order vacating the stay is lawful only if dismissal of the peti- tion would have been lawful." Ante, at 319. This state- ment, I believe, misreads our opinion in Barefoot v. Estelle, 463 U. S. 880 (1983), and ignores our reasoning in Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653 (1992). The order under review does not dispose of a petition for a writ of habeas corpus; it vacates a stay of execution. The Court dismisses this distinction as a "preliminary matter," which "makes no difference," because "the Court of Appeals order vacating the stay is lawful only if dismissal of the peti- tion would have been lawful." Ante, at 319. In my view, 517us1$41h 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 335 Rehnquist, C. J., concurring in judgment the fact that we are reviewing an order vacating a stay is anything but "preliminary." The Court is correct inasmuch as the underlying petition's likelihood of success is one factor to be considered in deter- mining whether a stay should be entered. See Hilton v. Braunskill, 481 U. S. 770, 776 (1987). Rule 9 of the Rules Governing § 2254 Cases sets forth the grounds upon which a habeas petition may be dismissed other than the merits. Under Rule 9(b), a petition may be dismissed if it is found to be successive or abusive. Under Rule 9(a) it may also be dismissed "if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable dili- gence before the circumstances prejudicial to the state occurred." 28 U. S. C. § 2254 Rule 9(a). In this case, there was no basis for denying a stay on the ground that petitioner's habeas claims are without merit; for the purposes of considering the stay application, it is undis- puted that those claims are substantial. Because the habeas petition was petitioner's first, it would also have been inap- propriate to deny a stay on the ground that the petition could have been dismissed under Rule 9(b). I agree with the ma- jority, ante, at 326, that, on the record before us, the petition likewise could not have been dismissed under Rule 9(a), be- cause the Rule's elements were not satisfied. Although the District Court determined that petitioner engaged in delay, it made no determination that the delay prejudiced the State's ability to respond to the petition, within the meaning of Rule 9(a), by depriving the State of adequate time to re- spond or otherwise. However, an applicant's likelihood of success is not the only consideration in determining whether he is entitled to a stay. 517us1$41h 02-16-99 20:25:31 PAGES OPINPGT 336 LONCHAR v. THOMAS Rehnquist, C. J., concurring in judgment See Hilton, supra, at 776. The Habeas Rules say little if anything about this determination, and understandably so. It must be remembered the statutes governing habeas cor- pus, 28 U. S. C. §§ 2241­2255, were enacted in 1948, before the writ developed into a vehicle for federal courts "to reex- amine federal constitutional issues even after trial and re- view by a state," Brown v. Allen, 344 U. S. 443, 459 (1953), and long before this Court declined to declare the death penalty unconstitutional, in Gregg v. Georgia, 428 U. S. 153 (1976), Proffitt v. Florida, 428 U. S. 242 (1976), and Jurek v. Texas, 428 U. S. 262 (1976). It would have been difficult for Congress to have anticipated the issues that arise in a sys- tem in which state death sentences are presumptively valid, but are "reexamined" in federal court before execution to consider constitutional challenges to the manner in which they were imposed. In the typical noncapital habeas case, it is relatively easy to rule on an application to stay execution of a state sentence by consulting ordinary principles governing stays. Rarely, if ever, does a noncapital petitioner seek a stay of his sen- tence before the district court has passed on the merits of his petition. When a petitioner does make such a request, he usually has little chance of success on the merits, since he has been confined pursuant to a presumptively valid final judgment of conviction rendered by a state court. See 28 U. S. C. § 2254(d). If, after entertaining his petition, the dis- trict court awards the writ, the "stay equities" shift in favor of the petitioner, who will be enlarged unless the State can demonstrate that the equities counsel otherwise. Hilton, supra, at 774. This easily managed system can be adapted to govern capi- tal habeas cases, so long as the capital petitioner files his habeas petition sufficiently in advance of his execution date. If he files in a timely fashion, the district court may then consider the petition in due course, without in any way dis- turbing the sentence or execution date before ruling on the 517us1$41h 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 337 Rehnquist, C. J., concurring in judgment petition's merits. But if, as in this case, the petitioner in- stead files an "eleventh hour" federal habeas petition, the customary principles must be revised accordingly. The dis- trict court may feel that it simply does not have time before the date of execution to adequately consider the merits of petitioner's claims, and will naturally be disposed, as the Dis- trict Court was here, to enter a stay to enable it to do so.1 In so doing, the district court sets aside a scheduled state execution of sentence, imposed by a presumptively valid final state judgment of conviction, on the basis of a tentative as- sessment that the judgment violates a federal constitutional right. Unless the eleventh-hour nature of the petition is taken into account, the late filing may induce the federal court to disregard federal-state comity and "frustrate . . . the States' sovereign power to punish offenders," Engle v. Isaac, 456 U. S. 107, 128 (1982), when such interference might have been avoided by timely filing.2 The customary principles must also be revised to account for an attempt by a peti- tioner to manipulate the district court into granting relief where relief is clearly precluded. In Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653 (1992), this Court demonstrated how last-minute or manipulative uses of the stay power constitute equitable grounds which can justify the denial of an applica- tion for stay of a state-court order of execution. The Court 1 The Court is not concerned by this prospect because district courts have discretion to "order expansion of the record," authorize discovery, decide "whether to hold an evidentiary hearing," and generally "expedite proceedings." Ante, at 326. These tools are useless, however, when a petitioner deliberately leaves the district court only one day to review a petition's claims. 2 Of course, there may be cases in which the eleventh-hour nature of the petition is attributable to the State's scheduling the execution date before the petitioner may appeal the denial of postconviction relief in a timely manner, not to the petitioner's deliberate refusal to seek relief. I am cer- tain that district courts are capable of distinguishing between the two situations. 517us1$41h 02-16-99 20:25:31 PAGES OPINPGT 338 LONCHAR v. THOMAS Rehnquist, C. J., concurring in judgment vacated a stay of execution issued on behalf of Robert Alton Harris, a California prisoner, pending consideration of a 42 U. S. C. § 1983 action alleging that his method of execution violated the Eighth Amendment. See 503 U. S., at 653. Because Harris had not raised the Eighth Amendment claim in any of the four federal habeas corpus petitions he had filed over 10 years, the Court considered the § 1983 claim "an obvious attempt to avoid the application of McCleskey v. Zant, 499 U. S. 467 (1991), to bar this successive claim for relief." Ibid. We could have vacated the stay on the basis of the successive-petition bar alone, but we explicitly did not: "Even if we were to assume, however, that Harris could avoid the application of McCleskey to bar his claim, we would not consider it on the merits. Whether his claim is framed as a habeas petition or as a § 1983 action, Harris seeks an equitable remedy. Equity must take into consideration the State's strong interest in proceeding with its judgment and Harris' obvious at- tempt at manipulation. This claim could have been brought more than a decade ago. There is no good rea- son for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial proc- ess. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief." Id., at 653­654 (citations omitted). Our order confirms that "abusive delay"-waiting until the last minute to submit a claim that could have been submitted earlier-and "obvious attempt[s] at manipulation"-in that case, asking the court to exercise its equitable powers in de- fiance of a clearly applicable legal rule precluding relief on the merits-constitute equities to be considered in ruling on the prayer for relief. More important, because we explained that this misconduct constituted sufficient grounds to deny Harris' stay application, "[e]ven if" McCleskey did not bar 517us1$41h 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 339 Rehnquist, C. J., concurring in judgment his claim, we made clear that such abuse may tip the scales decisively against a stay applicant regardless of the appli- cant's likelihood of success on the merits.3 Gomez also confirms that a habeas petitioner's misconduct in applying for a stay may disentitle him to the stay even if the petition is his first. The inequitable conduct Gomez criticized, abusive delay and manipulation, may be present in any stay application. In Gomez we did not equivocate when we said: "Equity must take into consideration [an] obvi- ous attempt at manipulation. . . . A court may consider the last-minute nature of an application to stay execution in de- ciding whether to grant equitable relief." 503 U. S., at 654 (citations omitted). It may be admitted that there would be a stronger presumption in favor of deciding the merits of a first-time petition than for a successive petition. The successive nature of a petition gives rise to an additional concern counseling against review of the merits: that the petitioner is frustrating the State's attempts to execute its judgment by exploiting the fact that ordinary principles of res judicata do not apply in habeas corpus. McCleskey v. Zant, 499 U. S. 467, 479, 491­492 (1991). It does not follow, however, that because a first-time petitioner does not abuse the writ under Rule 9(b) he may never be found to have engaged in the misconduct we criticized in Gomez; it means only that misconduct by such a petitioner is less likely to result in a refusal to grant a stay in order to consider the merits of the petition. The majority attempts to distinguish Gomez because the matter before the Court in that case was "not a first habeas petition." Ante, at 321. This reading is wholly implausible, because the first paragraph of the Court's order had already discussed the fact that Harris was not a first-time petitioner. 3 The § 1983 action was a class-action suit, of which Harris was one mem- ber. I note that the claim that the Court declined to consider on the merits has enough merit for the class plaintiffs to have prevailed in district court and the court of appeals. Fierro v. Gomez, 77 F. 3d 301 (CA9 1996). 517us1$41h 02-16-99 20:25:31 PAGES OPINPGT 340 LONCHAR v. THOMAS Rehnquist, C. J., concurring in judgment If the paragraph about Harris' misconduct in relation to his application, quoted above, had legal significance only if his petition was successive, it would have been superfluous. To support its view that a stay must be granted if a first federal habeas petition is not dismissed, the Court relies on our decision in Barefoot v. Estelle, 463 U. S. 880 (1983). But Barefoot and the present case arose in different contexts. The question presented and decided in Barefoot only ad- dressed how the merits of the habeas petition may determine whether the petitioner obtains a stay. Id., at 887 (announc- ing the Court was considering "the appropriate standard for granting or denying a stay of execution pending disposition of an appeal by a federal court of appeals by a death- sentenced federal habeas corpus petitioner"); id., at 891 (af- firming the denial of a stay because the Court of Appeals "ruled on the merits of [Barefoot's] appeal"). The issue in the present case is quite different: whether a petitioner's course of conduct in seeking the writ may be considered by the district court in deciding whether to grant a stay. To the extent that the Court's reading of Barefoot depends on the belief that a decision on a first federal habeas petition is somehow necessary to validate a state conviction, the Court ignores Barefoot's assertion to the contrary: "The role of federal habeas proceedings . . . is secondary and limited. Federal courts are not forums in which to relitigate state trials. . . . The procedures adopted to facilitate the orderly consideration and disposition of ha- beas petitions are not legal entitlements that a defend- ant has a right to pursue irrespective of the contribution these procedures make toward uncovering constitutional error." Id., at 887­888. And, contrary to the Court's refusal to consider whether Barefoot's "rationale" might brook a distinction between sea- sonable and eleventh-hour first habeas petitions, ante, at 321, our opinion warned that federal habeas corpus is not "a 517us1$41h 02-16-99 20:25:31 PAGES OPINPGT Cite as: 517 U. S. 314 (1996) 341 Rehnquist, C. J., concurring in judgment means by which a defendant is entitled to delay an execution indefinitely." 463 U. S., at 887. I nonetheless agree with the Court that the Court of Appeals erred in vacating the stay granted in this case by the District Court. The District Court did not consider whether petitioner's conduct in court constituted misconduct so abusive that it disentitled him to a stay; it focused solely on the likelihood that petitioner's habeas petition might be dismissed. Although the court determined that petitioner had "abused the writ," it did not rely on this finding to deny a stay, correctly concluding that a first habeas petition may not be dismissed on the basis of abuse of the writ. App. 61­62. There was no determination that petitioner's habeas petition could be dismissed under Rule 9(a). There is no other ground under which to dismiss a first petition other than the merits, and the Court of Appeals erred in conclud- ing otherwise. Although the findings supporting the District Court's de- termination that petitioner abused the writ would go a long way toward supporting affirmance on the ground that peti- tioner's misconduct disentitled him to a stay, reversal is still in order. I agree with the Court that petitioner's conduct in the next-friend proceedings "neither aggravate nor mitigate Lonchar's delay in filing." Ante, at 331. Petitioner may not be blamed for having asserted his competence and his control over his habeas claims, because our case law required the District Court to establish as much. See Whitmore v. Arkansas, 495 U. S. 149, 165 (1990). Nor should he be blamed for his brother's and sister's desire to protect him, although it would be a different case if the record established that his relatives and he were colluding to stay his execution but avoid putting his claims before the court, so as to keep his options open in the future. Because the District Court erred in concluding that petitioner was culpable for the course of the next-friend proceedings and "[i]t is a paradig- matic abuse of discretion for a court to base its judgment on 517us1$41h 02-16-99 20:25:31 PAGES OPINPGT 342 LONCHAR v. THOMAS Rehnquist, C. J., concurring in judgment an erroneous view of the law," Schlup v. Delo, 513 U. S. 298, 333 (1995) (O'Connor, J., concurring) (citing Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 405 (1990)), the District Court necessarily abused its discretion in determining there was abuse of the writ. Reconsideration of this determi- nation and the other equities of petitioner's stay application is now in order. I therefore concur in the judgment of reversal. 517us1$42z 11-06-97 20:40:28 PAGES OPINPGT OCTOBER TERM, 1995 343 Per Curiam SHIEH v. KAKITA et al. on motion for leave to proceed in forma pauperis No. 95­7587. Decided April 1, 1996* In March 1996, this Court invoked Rule 39.8 to deny petitioner Shieh in forma pauperis status. To date, he has filed 10 petitions in this Court in less than three years. All were patently frivolous and were denied without recorded dissent. Held: For the reasons discussed in Martin v. District of Columbia Court of Appeals, 506 U. S. 1, Shieh is denied leave to proceed in forma pau- peris in the instant cases, and the Clerk is directed not to accept any further petitions for certiorari from him in noncriminal matters unless he pays the required docketing fee and submits his petition in compli- ance with this Court's Rule 33.1. This order will not prevent Shieh from petitioning to challenge criminal sanctions which might be imposed against him, but it will allow this Court to devote its limited resources to the claims of petitioners who have not abused the certiorari process. Motions denied. Per Curiam. In these three petitions for certiorari, pro se petitioner Liang-Houh Shieh requests leave to proceed in forma pau- peris under Rule 39 of this Court. We deny his requests pursuant to Rule 39.8. Shieh is allowed until April 22, 1996, within which to pay the docketing fees required by Rule 38 and to submit his petitions in compliance with this Court's Rule 33.1. We also direct the Clerk not to accept any fur- ther petitions for certiorari from Shieh in noncriminal mat- ters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33.1. Shieh has abused this Court's certiorari process. In March 1996, we invoked Rule 39.8 to deny Shieh in forma pauperis status. See Shieh v. State Bar of California, 516 *Together with No. 95­7588, Shieh v. United States Court of Appeals for the Ninth Circuit, and No. 95­7589, Shieh v. Krieger et al., also on motion for leave to proceed in forma pauperis to the same court. 517us1$42h 11-06-97 20:40:28 PAGES OPINPGT 344 SHIEH v. KAKITA Stevens, J., dissenting U. S. 1170. To date, Shieh has filed 10 petitions in this Court in less than three years. All have been both patently frivo- lous and denied without recorded dissent. We enter the order barring prospective filings for the rea- sons discussed in Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992). Shieh's abuse of the writ of cer- tiorari has been in noncriminal cases, and so we limit our sanction accordingly. The order will not prevent Shieh from petitioning to challenge criminal sanctions which might be imposed against him. The order will, however, allow this Court to devote its limited resources to the claims of peti- tioners who have not abused our certiorari process. It is so ordered. Justice Stevens, dissenting. For the reasons I have previously expressed, I respectfully dissent. See Jones v. ABC­TV, 516 U. S. 363, 364 (1996) (Stevens, J., dissenting); Attwood v. Singletary, 516 U. S. 297, 298 (1996) (Stevens, J., dissenting); Martin v. District of Columbia Court of Appeals, 506 U. S. 1, 4 (1992) (Ste- vens, J., dissenting); Zatko v. California, 502 U. S. 16, 18 (1991) (Stevens, J., dissenting). 517US2$43z 02-04-99 16:40:49 PAGES OPINPGT OCTOBER TERM, 1995 345 Per Curiam BOWERSOX, SUPERINTENDENT, POTOSI CORREC- TIONAL CENTER v. WILLIAMS on application to vacate stay of execution No. A­828. Decided April 9, 1996 A Federal District Court denied respondent Williams' third habeas corpus petition, finding all of his claims to be abusive, successive, or procedur- ally defaulted. The Eighth Circuit subsequently entered a summary order staying Williams' pending execution, giving no explanation for its conclusion that such a stay was appropriate. Held: The Eighth Circuit abused its discretion by entering a stay on this record. Entry of a stay on a second or third habeas petition is particu- larly egregious absent substantial grounds for relief. Delo v. Blair, 509 U. S. 823. No such grounds can be discerned here. The Magistrate's report adopted by the District Court meticulously addresses and rejects each of Williams' claims. To the extent that the Eighth Circuit dis- cerned substantial grounds for relief, it failed to reveal them in its sum- mary order. Entry of a stay without explanation is disfavored, cf. Neth- erland v. Tuggle, 515 U. S. 951 (per curiam), for this Court loses the benefit of the court of appeals' views and must resort to other portions of the record in evaluating whether to vacate the stay. Application granted. Per Curiam. Doyle J. Williams is scheduled to be executed by the State of Missouri on April 10, 1996. On January 11, 1996, a Fed- eral District Court denied Williams' third federal habeas corpus petition, finding all of Williams' claims to be abusive, successive, or procedurally defaulted. On March 8, 1996, the United States Court of Appeals for the Eighth Circuit en- tered a summary order staying Williams' execution. The Court of Appeals scheduled oral argument for May 13, 1996, and resolved that the stay would remain in effect pending submission of the case and that court's further order. The summary order gives no explanation for the Court of Ap- peals' conclusion that oral argument is necessary or that entry of a stay was appropriate. The Court of Appeals 517US2$43n 02-04-99 16:40:49 PAGES OPINPGT 346 BOWERSOX v. WILLIAMS Per Curiam denied a petition for rehearing en banc, and we now have before us an application to vacate the stay. "A stay of execution pending disposition of a second or successive federal habeas petition should be granted only when there are `substantial grounds upon which relief might be granted.' " Delo v. Stokes, 495 U. S. 320, 321 (1990) (per curiam) (quoting Barefoot v. Estelle, 463 U. S. 880, 895 (1983)). Entry of a stay on a second or third habeas petition is a drastic measure, and we have held that it is " `particu- larly egregious' " to enter a stay absent substantial grounds for relief. Delo v. Blair, 509 U. S. 823 (1993) (citation omit- ted). On the record before us, we can discern no such grounds. We are persuaded by the report prepared by Mag- istrate Judge Hays, which meticulously addresses each of Williams' claims and finds each to be abusive, successive, pro- cedurally defaulted, or meritless, and by the District Court's order adopting that report, in which the District Court also denied Williams' dilatory motion to amend the habeas peti- tion. The Court of Appeals abused its discretion by enter- ing a stay on this record. To the extent the Court of Appeals discerned substantial grounds for relief, it failed to reveal them in its summary order granting the stay. Although we hesitate to say that a court of appeals must, in every case, explain the basis for its entry of a stay, we see fit to remind the lower courts that entry of a stay without explanation is disfavored. Cf. Neth- erland v. Tuggle, 515 U. S. 951 (1995) (per curiam). When a court of appeals fails to articulate its reasons for granting a stay, we lose the benefit of that court's views and must resort to other portions of the record in evaluating whether to vacate the stay. In this case, the District Court's careful treatment of Williams' claims and the surface implausibility of those claims persuade us that the stay should not have been granted, and the Court of Appeals' summary order does not convince us otherwise. 517US2$43n 02-04-99 16:40:49 PAGES OPINPGT Cite as: 517 U. S. 345 (1996) 347 Ginsburg, J., dissenting Accordingly, the application to vacate the stay of execution is granted. It is so ordered. Justice Ginsburg, with whom Justice Stevens, Jus- tice Souter, and Justice Breyer join, dissenting. I would deny the application to vacate the stay of Wil- liams' execution. A diligent appellate court has granted a certificate of probable cause and scheduled this case for argu- ment on May 13. Those actions signal to me the existence of reasons, not the absence of reasons, for granting a stay. At the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Ap- peals' order. Appreciation of our own fallibility, and respect for the judgment of an appellate tribunal closer to the scene than we are, as I see it, demand as much. 517US2$44z 02-07-99 16:49:58 PAGES OPINPGT 348 OCTOBER TERM, 1995 Syllabus COOPER v. OKLAHOMA certiorari to the court of criminal appeals of oklahoma No. 95­5207. Argued January 17, 1996-Decided April 16, 1996 Oklahoma law presumes that a criminal defendant is competent to stand trial unless he proves his incompetence by clear and convincing evi- dence. Applying that standard, a judge found petitioner Cooper com- petent on separate occasions before and during his trial for first-degree murder, despite his bizarre behavior and conflicting expert testimony on the issue. In affirming his conviction and death sentence, the Court of Criminal Appeals rejected his argument that the State's presump- tion of competence, combined with its clear and convincing evidence standard, placed such an onerous burden on him as to violate due process. Held: Because Oklahoma's procedural rule allows the State to try a de- fendant who is more likely than not incompetent, it violates due proc- ess. Pp. 354­369. (a) It is well settled that the criminal trial of an incompetent defend- ant violates due process. Medina v. California, 505 U. S. 437, 449, es- tablishes that a State may presume that the defendant is competent and require him to prove incompetence by a preponderance of the evidence. Such a presumption does not offend a " `principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamen- tal,' " id., at 445, for it affects the outcome "only in a narrow class of cases . . . where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent," id., at 449. This case, however, presents the quite different question whether a State may proceed with a criminal trial after a defendant has shown that he is more likely than not incompetent. Pp. 354­356. (b) Oklahoma's rule has no roots in historical practice. Both early English and American cases suggest that the common-law standard of proof was preponderance of the evidence. That this same standard is currently used by 46 States and the federal courts indicates that the vast majority of jurisdictions remain persuaded that Oklahoma's height- ened standard is not necessary to vindicate the State's interest in prompt and orderly disposition of criminal cases. The near-uniform ap- plication of a standard that is more protective of the defendant's rights than Oklahoma's rule supports the conclusion that the heightened stand- ard offends a deeply rooted principle of justice. Pp. 356­362. 517US2$44z 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 349 Syllabus (c) Oklahoma's rule does not exhibit "fundamental fairness" in opera- tion. An erroneous determination of competence has dire consequences for a defendant who has already demonstrated that he is more likely than not incompetent, threatening the basic fairness of the trial itself. A defendant's inability to communicate effectively with counsel may leave him unable to exercise other rights deemed essential to a fair trial-e. g., choosing to plead guilty, waiving his privilege against com- pulsory self-incrimination by taking the witness stand, or waiving his rights to a jury trial or to cross-examine witnesses-and to make a myriad of smaller decisions concerning the course of his defense. These risks outweigh the State's interest in the efficient operation of its crimi- nal justice system. Difficulty in ascertaining whether a defendant is incompetent or malingering may make it appropriate to place the bur- den of proof on him, but it does not justify the additional onus of an especially high standard of proof. Pp. 362­367. (d) Although it is normally within a State's power to establish the procedures through which its laws are given effect, the power to regu- late procedural burdens is subject to proscription under the Due Process Clause when, as here, the procedures do not sufficiently protect a funda- mental constitutional right. Patterson v. New York, 432 U. S. 197, dis- tinguished. The decision herein is in complete accord with the ruling in Addington v. Texas, 441 U. S. 418, that due process requires a clear and convincing evidence standard of proof in involuntary civil commit- ment proceedings. That ruling protects an individual's fundamental liberty interest, while the ruling in this case safeguards the fundamental right not to stand trial while incompetent. Pp. 367­369. 889 P. 2d 293, reversed and remanded. Stevens, J., delivered the opinion for a unanimous Court. Robert A. Ravitz argued the cause and filed briefs for petitioner. W. A. Drew Edmondson, Attorney General of Oklahoma, argued the cause for respondent. With him on the brief was Sandra D. Howard, Assistant Attorney General.* *Briefs of amici curiae urging reversal were filed for the American Association on Mental Retardation et al. by James W. Ellis and Barbara E. Bergman; and for the National Association of Criminal Defense Law- yers by Charles D. Weisselberg, Dennis E. Curtis, Denise Meyer, and Larry J. Fleming. A brief of amicus curiae urging affirmance was filed for the State of Utah et al. by Jan Graham, Attorney General of Utah, J. Kevin Murphy, 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT 350 COOPER v. OKLAHOMA Opinion of the Court Justice Stevens delivered the opinion of the Court. In Oklahoma the defendant in a criminal prosecution is presumed to be competent to stand trial unless he proves his incompetence by clear and convincing evidence. Okla. Stat., Tit. 22, § 1175.4(B) (1991). Under that standard a defendant may be put to trial even though it is more likely than not that he is incompetent. The question we address in this case is whether the application of that standard to petitioner violated his right to due process under the Fourteenth Amendment. I In 1989 petitioner was charged with the brutal killing of an 86-year-old man in the course of a burglary. After an Oklahoma jury found him guilty of first-degree murder and recommended punishment by death, the trial court imposed the death penalty. The Oklahoma Court of Criminal Ap- peals affirmed the conviction and sentence. Petitioner's competence was the focus of significant atten- tion both before and during his trial. On five separate occa- sions a judge considered whether petitioner had the ability to understand the charges against him and to assist defense counsel. On the first occasion, a pretrial judge relied on the opinion of a clinical psychologist employed by the State to find petitioner incompetent. Based on that determination, he committed petitioner to a state mental health facility for treatment. Assistant Attorney General, and Carol Clawson, Solicitor General, John M. Bailey, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Gale A. Norton of Colorado, M. Jane Brady of Delaware, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Carla J. Stovall of Kansas, Michael C. Moore of Missis- sippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, Betty D. Montgomery of Ohio, Thomas W. Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, and James S. Gil- more III of Virginia. 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 351 Opinion of the Court Upon petitioner's release from the hospital some three months later, the trial judge heard testimony concerning petitioner's competence from two state-employed psycholo- gists. These experts expressed conflicting opinions regard- ing petitioner's ability to participate in his defense. The judge resolved the dispute against petitioner, ordering him to proceed to trial. At the close of a pretrial hearing held one week before the trial was scheduled to begin, the lead defense attorney raised the issue of petitioner's competence for a third time. Coun- sel advised the court that petitioner was behaving oddly and refusing to communicate with him. Defense counsel opined that it would be a serious matter "if he's not faking." App. 6. After listening to counsel's concerns, however, the judge declined to revisit his earlier determination that petitioner was competent to stand trial. Petitioner's competence was addressed a fourth time on the first day of trial, when petitioner's bizarre behavior prompted the court to conduct a further competency hearing at which the judge observed petitioner and heard testimony from several lay witnesses, a third psychologist, and peti- tioner himself.1 The expert concluded that petitioner was 1 During the hearing petitioner, who had refused to change out of prison overalls for the trial because the proffered clothes were "burning" him, Tr. of Pretrial Motions and Competency Hearings 3­4 (May 4­5, 1992), talked to himself and to an imaginary "spirit" who petitioner claimed gave him counsel. On the witness stand petitioner expressed fear that the lead defense attorney wanted to kill him. In his argument at the close of the proceeding, defense counsel reminded the court of an incident that occurred during petitioner's testimony: "Every time I would get close to his space where he is seated in this little witness enclave . . . he would stand up and he would get away from me as far as he could and so I would back off and I'd give him a little space. . . . So, I've approached him from every side. . . . except I haven't approached him from the front. So yesterday, I approach him from the front. And that's the last thing I did. I regret doing that. "He stood up and he got as far back against the rail behind the witness chair as he could get. I edged closer. He got as far back and he got up 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT 352 COOPER v. OKLAHOMA Opinion of the Court presently incompetent and unable to communicate effectively with counsel, but that he could probably achieve competence within six weeks if treated aggressively. While stating that he did not dispute the psychologist's diagnosis, the trial judge ruled against petitioner. In so holding, however, the court voiced uncertainty: "Well, I think I've used the expression . . . in the past that normal is like us. Anybody that's not like us is not normal, so I don't think normal is a proper definition that we are to use with incompetence. My shirtsleeve opinion of Mr. Cooper is that he's not normal. Now, to say he's not competent is something else. . . . . . "But you know, all things considered, I suppose it's possible for a client to be in such a predicament that he can't help his defense and still not be incompetent. I suppose that's a possibility, too. "I think it's going to take smarter people than me to make a decision here. I'm going to say that I don't be- lieve he has carried the burden by clear and convincing evidence of his incompetency and I'm going to say we're going to go to trial." Id., at 42­43. on that rail. So I've got him up on the rail and I'm thinking, hey, what can I lose? Let me just see what he does now because he can go no further back, but as the Court knows, there's a space of about two-and-a- half feet behind this rail and a marble wall. "Without looking for his safety at all and looking what's behind him, when I moved the least bit and I didn't move very far towards him, he fell to get away from me. He fell. He hit his head. The thud on that marble when he jackknifed backward off of that railing into that marble could be heard at the back of that courtroom. . . . "We got him back up here in the witness enclave, he's just busted his head, tears are streaming down his eyes and he does not respond in any normal fashion." App. 37­38. 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 353 Opinion of the Court Incidents that occurred during the trial,2 as well as the sordid history of petitioner's childhood that was recounted during the sentencing phase of the proceeding, were consist- ent with the conclusions expressed by the expert. In a final effort to protect his client's interests, defense counsel moved for a mistrial or a renewed investigation into petitioner's competence. After the court summarily denied these mo- tions, petitioner was convicted and sentenced to death. In the Court of Criminal Appeals, petitioner contended that Oklahoma's presumption of competence, combined with its statutory requirement that a criminal defendant establish incompetence by clear and convincing evidence, Okla. Stat., Tit. 22, § 1175.4(B) (1991),3 placed such an onerous burden on him as to violate his right to due process of law. The appel- late court rejected this argument. After noting that it can be difficult to determine whether a defendant is malingering, given "the inexactness and uncertainty attached to [compe- tency] proceedings," the court held that the standard was justified because the "State has great interest in assuring its citizens a thorough and speedy judicial process," and because a "truly incompetent criminal defendant, through his attor- neys and experts, can prove incompetency with relative ease." 889 P. 2d 293, 303 (1995). We granted certiorari to review the Court of Criminal Appeals' conclusion that appli- 2 Petitioner did not communicate with or sit near defense counsel during the trial. Through much of the proceedings he remained in prison over- alls, crouching in the fetal position and talking to himself. 3 Section 1175.4(B) provides, in relevant part: "The court, at the hearing on the application [for determination of competency], shall determine, by clear and convincing evidence, if the person is incompetent. The person shall be presumed to be competent for the purposes of the allocation of the burden of proof and burden of going forward with the evidence." Section 1175.4 was amended in 1991, during the pretrial period of petitioner's prosecution. The amendment did not alter the text of subsection B. 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT 354 COOPER v. OKLAHOMA Opinion of the Court cation of the clear and convincing evidence standard does not violate due process. 516 U. S. 910 (1995). II No one questions the existence of the fundamental right that petitioner invokes. We have repeatedly and consist- ently recognized that "the criminal trial of an incompetent defendant violates due process." Medina v. California, 505 U. S. 437, 453 (1992); Drope v. Missouri, 420 U. S. 162, 171­ 172 (1975); Pate v. Robinson, 383 U. S. 375, 378 (1966). Nor is the significance of this right open to dispute. As Justice Kennedy recently emphasized: "Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one's own behalf or to remain silent without penalty for doing so. Drope v. Missouri, 420 U. S. 162, 171­172 (1975)." Riggins v. Nevada, 504 U. S. 127, 139­140 (1992) (opinion concurring in judgment).4 The test for incompetence is also well settled. A defendant may not be put to trial unless he " `has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him.' " Dusky v. United States, 362 U. S. 402, 402 (1960) (per curiam).5 4 Indeed, the right not to stand trial while incompetent is sufficiently important to merit protection even if the defendant has failed to make a timely request for a competency determination. See Pate v. Robinson, 383 U. S. 375, 384 (1966). 5 The Oklahoma statute defines competence as "the present ability of a person arrested for or charged with a crime to understand the nature of the charges and proceedings brought against him and to effectively and 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 355 Opinion of the Court Our recent decision in Medina v. California, 505 U. S. 437 (1992), establishes that a State may presume that the defend- ant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evi- dence. Id., at 449. In reaching that conclusion we held that the relevant inquiry was whether the presumption " `offends some principle of justice so rooted in the traditions and con- science of our people as to be ranked as fundamental.' " Id., at 445 (quoting Patterson v. New York, 432 U. S. 197, 202 (1977)). We contrasted the "deep roots in our common-law heritage" underlying the prohibition against trying the in- competent with the absence of any settled tradition concern- ing the allocation of the burden of proof in a competency proceeding. 505 U. S., at 446. Our conclusion that the pre- sumption of competence offends no recognized principle of "fundamental fairness" rested in part on the fact that the procedural rule affects the outcome "only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent." Id., at 449.6 The question we address today is quite different from the question posed in Medina. Petitioner's claim requires us to consider whether a State may proceed with a criminal trial after the defendant has demonstrated that he is more likely than not incompetent. Oklahoma does not contend that it may require the defendant to prove incompetence beyond a reasonable doubt.7 The State maintains, however, that the clear and convincing standard provides a reasonable accom- rationally assist in his defense." Okla. Stat., Tit. 22, § 1175.1(1) (Supp. 1996). 6 In her concurring opinion, Justice O'Connor expressed the view that placing the burden on the defendant in this limited group of cases was permissible because it provided the defendant with an incentive to cooper- ate with the information-gathering process necessary to a reliable compe- tency determination. Medina, 505 U. S., at 455. 7 Tr. of Oral Arg. 46­48. 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT 356 COOPER v. OKLAHOMA Opinion of the Court modation of the opposing interests of the State and the de- fendant. We are persuaded, by both traditional and modern practice and the importance of the constitutional interest at stake, that the State's argument must be rejected. III "Historical practice is probative of whether a procedural rule can be characterized as fundamental," Medina, 505 U. S., at 446. In this case, unlike in Medina, there is no indication that the rule Oklahoma seeks to defend has any roots in prior practice. Indeed, it appears that a rule sig- nificantly more favorable to the defendant has had a long and consistent application. We turn first to an examination of the relevant common- law traditions of England and this country. The prohibition against trying the incompetent defendant was well estab- lished by the time Hale and Blackstone wrote their famous commentaries. 4 W. Blackstone, Commentaries *24 ("[I]f a man in his sound memory commits a capital offence . . . [a]nd if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence?"); 1 M. Hale, Pleas of the Crown *34­*35 (same). The English cases which predate our Constitution provide no guidance, how- ever, concerning the applicable standard of proof in compe- tency determinations. See Trial of Charles Bateman (1685), reported in 11 How. St. Tr. 464, 467 (1816), and Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 How. St. Tr. 474, 476 (1816) (noting that the court in the 1685 trial incurred "censure" for proceeding to trial with a doubt as to the defendant's competence); Kinloch's Case (1746), 18 How. St. Tr. 395, 411 (1813); King v. Steel, 1 Leach 452, 168 Eng. Rep. 328 (1787). Beginning in the late 18th century, cases appear which provide an inkling of the proper standard. In King v. Frith, 22 How. St. Tr. 307 (1790), for example, the court instructed 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 357 Opinion of the Court the jury to "diligently inquire . . . whether John Frith, the now prisoner at the bar . . . be of sound mind and understand- ing or not . . . ." Id., at 311. Some 50 years later the jurors received a nearly identical admonition in Queen v. Goode, 7 Ad. & E. 536, 112 Eng. Rep. 572 (K. B. 1837): " `You shall diligently inquire, and true presentment make . . . whether John Goode . . . be insane or not . . . .' " Id., at 536, n. (a), 112 Eng. Rep., at 572­573, n. (a)2.8 Similarly, in King v. Pritchard, 7 Car. & P. 303, 173 Eng. Rep. 135 (1836), the court empaneled a jury to consider "whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial . . . ." Ibid. See also King v. Dyson, 73 Car. & P. 305, n. (a), 173 Eng. Rep. 135­136, n. (a) (1831); Queen v. Southey, 4 F. & F. 864, 895, 176 Eng. Rep. 825, 838 (1865); Queen v. Berry, 1 Q. B. Rep. 447, 449 (1876). Ibid.9 These authorities, while still speaking less clearly than we might wish, are instructive. By phrasing the inquiry in a simple disjunctive, Frith, Goode, and Pritchard suggest that traditional practice required the jury to determine whether the defendant was "more likely than not" incompetent. Nothing in the jury instructions of these cases will bear the interpretation of a clear and convincing standard. What is more, the cases contain no indication that the use of a pre- 8 Courts often referred to the prisoner's insanity (or present insanity) rather than incompetence, even when the proceeding concerned the de- fendant's competence to stand trial. Beginning with the earliest cases, the issue at a sanity or competency hearing has been "whether the pris- oner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge." King v. Pritchard, 7 Car. & P. 303, 304, 173 Eng. Rep. 135 (1836). 9 In 1800 England codified the common-law rule that a court could empanel a jury to determine whether a defendant charged with treason, murder, or a felony offense was competent to stand trial. Criminal Lunatics Act, 1800, 39 & 40, Geo. 3, ch. 94, § 2. 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT 358 COOPER v. OKLAHOMA Opinion of the Court ponderance standard represented a departure from earlier (pre-Constitution) practice.10 Modern English authority confirms our interpretation of these early cases as applying a preponderance standard. Relying on "principles . . . laid down in a number of cases," including Pritchard and King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), the court in Queen v. Podola, 43 Crim. App. 220, 3 All E. R. 418 (1959), ruled: "If the contention that the accused is insane is put for- ward by the defence and contested by the prosecution, there is, in our judgment, a burden upon the defence of satisfying the jury of the accused's insanity. In such a case, as in other criminal cases in which the onus of proof rests upon the defence, the onus is discharged if the jury are satisfied on the balance of probabilities that the accused's insanity has been made out." Id., at 235, 3 All E. R., at 429.11 10 Indeed, although in Medina we concluded that it is permissible for a State to require the defendant to shoulder the burden of demonstrating his incompetence, we noted that some 19th-century English authorities placed the burden on the prosecutor once competence was put in issue. Medina v. California, 505 U. S., at 447. See Queen v. Davies, 3 Car. & K. 328, 329, 175 Eng. Rep. 575, 575 (1853) (judge ruled that "[the prosecu- tor] should begin, and call his witnesses, to show that the prisoner is sane, and capable of pleading"); Ley's Case, 1 Lewin 239, 240, 168 Eng. Rep. 1026 (1828) (" `If there be a doubt as to the prisoner's sanity . . . you cannot say that he is in a fit state to be put upon his trial' "). See also Halsbury, 10 Laws of England 403 (3d ed. 1955) ("Where a jury is so empanelled [to determine competency], the onus is on the prosecution to prove the sanity of the defendant"). But see Queen v. Podola, 43 Crim. App. 220, 236, 3 All E. R. 418, 430 (1959) (explicitly rejecting the suggestion that the prosecutor must prove the defendant's competence to stand trial). Given the disagreement among English courts concerning which party bore the burden of proof, it is unlikely that in cases in which the burden was placed on the defendant that burden was as weighty as clear and convincing evidence. 11 The Podola court opined that the tests laid down in Pritchard "have been followed so often that they may be said to be firmly embodied in our law." 43 Crim. App., at 238, 3 All E. R., at 431. 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 359 Opinion of the Court Likewise, we are aware of no decisional law from this country suggesting that any State employed Oklahoma's heightened standard until quite recently. Rather, the ear- liest available sources typically refer to English authori- ties, see, e. g., Freeman v. People, 47 Am. Dec. 216, 223­225 (N. Y. 1847), State v. Harris, 78 Am. Dec. 272, 272­275 (N. C. 1860) (adopting procedures outlined in King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), and King v. Pritchard, 7 Car. & P. 303, 173 Eng. Rep. 135 (1836)), and employ the disjunctive language used by the English courts, see, e. g., Commonwealth v. Hathaway, 13 Mass. 299 (1816); People v. Kleim, 1 N. Y. 13, 15 (1845); Harris, 78 Am. Dec., at 275; United States v. Chisolm, 149 F. 284, 290 (SD Ala. 1906).12 By the turn of the 20th century, however, American courts were explicitly applying a preponderance standard. In 1896, Ohio juries were instructed that "[t]he burden is upon the prisoner to show by a preponderance of the proof that he is insane." State v. O'Grady, 5 Ohio Dec. 654, 655 (1896).13 Some 15 years later, the Tennessee Supreme Court described the competency determination as 12 In Commonwealth v. Braley, 1 Mass. 102, 103 (1804), a case decided shortly after the Constitution was ratified, the court instructed the jury to consider "whether [the accused] neglected or refused to plead to the indictment against him for murder, of his free will and malice, or whether he did so neglect by the act of God." This instruction may be a precursor to the "sane or insane" disjunctive. 13 See also State v. Tyler, 7 Ohio N. P. 443, 444 (1898) ("What I mean by the preponderance of the evidence is that the accused must show that he is now at the time of this trial probably not sane"). Cf. People v. Ah Ying, 42 Cal. 18, 20 (1872) (jury should find defendant presently insane if "satisfied" by the evidence supporting that conclusion). Both Tyler and State v. O'Grady are instructive concerning the proper interpretation of the authorities which articulate no standard of proof but phrase the inquiry in the disjunctive. In each case the jury was told that its task was to determine whether the accused "is or is not sane," Tyler, 7 Ohio N. P., at 443, see also O'Grady, 5 Ohio Dec., at 654, and then explicitly instructed that the defendant bore the burden of proof by a preponderance of the evidence. Tyler, 7 Ohio N. P., at 443; O'Grady, 5 Ohio Dec., at 655. 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT 360 COOPER v. OKLAHOMA Opinion of the Court "controlled by the preponderance of the proof," Jordan v. State, 124 Tenn. 81, 89, 135 S. W. 327, 329 (1911), and the highest court of Pennsylvania held that competence is "de- cided by a preponderance of the evidence," Commonwealth v. Simanowicz, 242 Pa. 402, 405, 89 A. 562, 563 (1913).14 These early authorities are bereft of language susceptible of supporting a clear and convincing evidence standard.15 Contemporary practice demonstrates that the vast major- ity of jurisdictions remain persuaded that the heightened standard of proof imposed on the accused in Oklahoma is not necessary to vindicate the State's interest in prompt and orderly disposition of criminal cases. Only 4 of the 50 States presently require the criminal defendant to prove his incom- petence by clear and convincing evidence.16 None of the re- 14 See also State v. Arnold, 12 Iowa 479, 484 (1861) ("A doubt must be raised whether at the time there is such mental impairment . . . as to render it probable that the prisoner can not, as far as may devolve upon him, have a full, fair and impartial trial"); People v. McElvaine, 125 N. Y. 596, 608, 26 N. E. 929, 933 (1891) (the court "was familiar with the appear- ance and conduct of the prisoner during the period of that trial, and had sufficient grounds before it to judge as to the probability of his present sanity"). See also Crocker v. State, 19 N. W. 435, 436 (Wis. 1884); United States v. Chisolm, 149 F. 284, 290 (SD Ala. 1906). Several of the early cases explicitly mention the common-law roots of the State's statutory procedure for determining competency. See People v. McElvaine, 125 N. Y., at 608, 26 N. E., at 932 ("We do not think the Code of Criminal Procedure has made any radical change in the mode of procedure or the character of the [competency] proceedings"); French v. State, 67 N. W. 706, 710 (Wis. 1896) ("The statute . . . providing for an inquisition, where there is a probability that the accused is, at the time of his trial, insane, and thereby incapacitated to act for himself, to determine whether he is so insane, is substantially a provision in affirmance of a power the court had at common law in such cases, as abundantly appears from the authorities"). 15 Oklahoma all but concedes that early common law and statutory deci- sions employed a standard of proof lower than clear and convincing. See Brief for Respondent 21­23. 16 Conn. Gen. Stat. § 54­56d(b) (1995); Okla. Stat., Tit. 22, § 1175.4 (1991); 50 Pa. Cons. Stat. § 7403(a) (Supp. 1995); and R. I. Gen. Laws § 40.1­5.3­3 (Supp. 1995). The adoption of the clear and convincing evidence standard 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 361 Opinion of the Court maining 46 jurisdictions imposes such a heavy burden on the defendant.17 Indeed, a number of States place no burden on the defendant at all, but rather require the prosecutor to by Oklahoma and Connecticut may have been a response to this Court's decision in Addington v. Texas, 441 U. S. 418 (1979). We discuss Adding- ton infra, at 368­369. 17 See Lackey v. State, 615 So. 2d 145, 151­152 (Ala. Crim. App. 1992); McCarlo v. State, 677 P. 2d 1268, 1272 (Alaska App. 1984); Cal. Penal Code Ann. § 1369(f) (West 1982); Colo. Rev. Stat. § 16­8­111(2) (1986); Diaz v. State, 508 A. 2d 861, 863 (Del. 1986); Flowers v. State, 353 So. 2d 1259, 1270 (Fla. App. 1978); Johnson v. State, 209 Ga. App. 514, 516, 433 S. E. 2d 717, 719 (1993); Haw. Rev. Stat. §§ 704­404 and 704­411 (1993); Ill. Comp. Stat., ch. 725, § 5/104­11(c) (1992); Montano v. State, 649 N. E. 2d 1053, 1057­1058 (Ind. App. 1995); State v. Rhode, 503 N. W. 2d 27, 35 (Iowa App. 1993); State v. Seminary, 165 La. 67, 72, 115 So. 370, 372 (1927); Jolley v. State, 282 Md. 353, 365, 384 A. 2d 91, 98 (1978); Commonwealth v. Prater, 420 Mass. 569, 573­574, 651 N. E. 2d 833, 837 (1995); Minn. Rule Crim. Proc. 20.01 (1995); Griffin v. State, 504 So. 2d 186, 191 (Miss. 1987); State v. Zorzy, 136 N. H. 710, 714­715, 622 A. 2d 1217, 1219 (1993); State v. Lambert, 275 N. J. Super. 125, 129, 645 A. 2d 1189, 1191 (1994); State v. Chapman, 104 N. M. 324, 327, 721 P. 2d 392, 395 (1986); People v. Santos, 43 App. Div. 2d 73, 75, 349 N. Y. S. 2d 439, 442 (1973); State v. Heger, 326 N. W. 2d 855, 858 (N. D. 1982); Ohio Rev. Code Ann. § 2945.37 (1993); State v. Nance, 466 S. E. 2d 349, 351 (S. C. 1996); S. D. Codified Laws § 23A­10A­6.1 (1988); Jordan v. State, 124 Tenn. 81, 89, 135 S. W. 327, 329 (1911); Blacklock v. State, 820 S. W. 2d 882, 886 (Tex. App. 1991); Utah Code Ann. § 77­15­5(10) (1995); Va. Code Ann. § 19.2­169.1(E) (1995); Wash. Rev. Code § 10.77.090 (1994); W. Va. Code § 27­6A­2(b) (1992); Wis. Stat. § 971.14(4)(b) (1985 and Supp. 1995); Loomer v. State, 768 P. 2d 1042, 1045 (Wyo. 1989). The burden imposed in the remaining States is unclear. Nothing in the competency statutes or case law of these States suggests, however, that the defendant bears the burden of proving incompetence by clear and con- vincing evidence. See Ariz. Rule Crim. Proc. 11.5 (1987 and Supp. 1995); Mitchell v. State, 323 Ark. 116, 120, 913 S. W. 2d 264, 266 (1996); Idaho Code § 18­212 (1987); Kan. Stat. Ann. § 22­3302 (1995); Ky. Rev. Stat. Ann. § 504.100 (Michie 1990); Me. Rev. Stat. Ann., Tit. 15, § 101­B (Supp. 1995); Mich. Comp. Laws § 330.2020 (1992); State v. Clark, 546 S. W. 2d 455, 468 (Mo. App. 1976); Mont. Code Ann. § 46­14­221 (1992 and Supp. 1995); Neb. Rev. Stat. § 29­1823 (1989); Nev. Rev. Stat. § 178.415 (1992); N. C. Gen. Stat. § 15A­1002 (1988); Ore. Rev. Stat. §§ 161.360­161.370 (Supp. 1994); and Vt. Stat. Ann., Tit. 13, § 4817 (1974). 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT 362 COOPER v. OKLAHOMA Opinion of the Court prove the defendant's competence to stand trial once a ques- tion about competency has been credibly raised.18 The situ- ation is no different in federal court. Congress has directed that the accused in a federal prosecution must prove incom- petence by a preponderance of the evidence. 18 U. S. C. § 4241. The near-uniform application of a standard that is more protective of the defendant's rights than Oklahoma's clear and convincing evidence rule supports our conclusion that the heightened standard offends a principle of justice that is deeply "rooted in the traditions and conscience of our peo- ple." Medina v. California, 505 U. S., at 445 (internal quo- tation marks omitted). We turn next to a consideration of whether the rule exhibits " `fundamental fairness' in opera- tion." Id., at 448 (quoting Dowling v. United States, 493 U. S. 342, 352 (1990)). IV Contemporary and historical procedures are fully consist- ent with our evaluation of the risks inherent in Oklahoma's practice of requiring the defendant to prove incompetence by clear and convincing evidence. In Addington v. Texas, 441 U. S. 418, 423 (1979), we explained that: "The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.' In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring)." The "more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision." 18 See, e. g., Haw. Rev. Stat. §§ 704­404 and 704­411 (1993); Ill. Comp. Stat., ch. 725, § 5/104­11(c) (1992); S. D. Codified Laws § 23A­10A­6.1 (1988); Wis. Stat. § 971.14(4)(b) (Supp. 1994 and Supp. II 1995). 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 363 Opinion of the Court Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 283 (1990). For that reason, we have held that due process places a heightened burden of proof on the State in civil pro- ceedings in which the "individual interests at stake . . . are both `particularly important' and `more substantial than mere loss of money.' " Santosky v. Kramer, 455 U. S. 745, 756 (1982) (termination of parental rights) (quoting Adding- ton, 441 U. S., at 424).19 Far from "jealously guard[ing]," Jacob v. New York City, 315 U. S. 752, 752­753 (1942), an incompetent criminal de- fendant's fundamental right not to stand trial, Oklahoma's practice of requiring the defendant to prove incompetence by clear and convincing evidence imposes a significant risk of an erroneous determination that the defendant is compe- tent. In Medina we found no comparable risk because the presumption would affect only the narrow class of cases in which the evidence on either side was equally balanced. 19 See also Addington v. Texas (involuntary civil commitment); Woodby v. INS, 385 U. S. 276, 285­286 (1966) (deportation); Chaunt v. United States, 364 U. S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U. S. 118, 125 (1943) (denaturalization). Our opinions in Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 (1990), and Ohio v. Akron Center for Reproductive Health, 497 U. S. 502 (1990), are not to the contrary. In Cruzan we held that the Due Process Clause does not prohibit Missouri from requiring a third party who seeks to terminate life-sustaining treatment to demonstrate by clear and con- vincing evidence that the incompetent person receiving such treatment would wish that step to be taken. 497 U. S., at 280. We reasoned that the heightened standard of proof was permissible because the decision- maker was a surrogate for the incompetent individual, id., at 280­281, and because the consequences of an erroneous decision were irreversible, id., at 283. In Akron Center for Reproductive Health we upheld an Ohio statute that required an unmarried, unemancipated minor woman who sought to obtain an abortion without notifying a parent to prove by clear and convincing evidence that judicial bypass of the notification require- ment was appropriate in her case. We approved the heightened standard of proof in that case largely because the proceeding at issue was ex parte. 497 U. S., at 515­516. 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT 364 COOPER v. OKLAHOMA Opinion of the Court "Once a State provides a defendant access to procedures for making a competency evaluation," we stated, there is "no basis for holding that due process further requires the State to assume the burden of vindicating the defendant's constitu- tional right by persuading the trier of fact that the defendant is competent to stand trial." 505 U. S., at 449. Unlike the presumption at issue in Medina, however, Oklahoma's clear and convincing evidence standard affects a class of cases in which the defendant has already demonstrated that he is more likely than not incompetent. For the defendant, the consequences of an erroneous de- termination of competence are dire. Because he lacks the ability to communicate effectively with counsel, he may be unable to exercise other "rights deemed essential to a fair trial." Riggins v. Nevada, 504 U. S., at 139 (Kennedy, J., concurring in judgment). After making the "profound" choice whether to plead guilty, Godinez v. Moran, 509 U. S. 389, 398 (1993), the defendant who proceeds to trial "will ordinarily have to decide whether to waive his `privilege against compulsory self-incrimination,' Boy- kin v. Alabama, 395 U. S. 238, 243 (1969), by taking the witness stand; if the option is available, he may have to decide whether to waive his `right to trial by jury,' ibid.; and, in consultation with counsel, he may have to decide whether to waive his `right to confront [his] accusers,' ibid., by declining to cross-examine witnesses for the prosecution." Ibid. With the assistance of counsel, the defendant also is called upon to make myriad smaller decisions concerning the course of his defense. The importance of these rights and decisions demonstrates that an erroneous determination of compe- tence threatens a "fundamental component of our criminal justice system" 20-the basic fairness of the trial itself. 20 United States v. Cronic, 466 U. S. 648, 653 (1984). 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 365 Opinion of the Court By comparison to the defendant's interest, the injury to the State of the opposite error-a conclusion that the defend- ant is incompetent when he is in fact malingering-is mod- est. To be sure, such an error imposes an expense on the state treasury and frustrates the State's interest in the prompt disposition of criminal charges. But the error is subject to correction in a subsequent proceeding and the State may detain the incompetent defendant for "the reason- able period of time necessary to determine whether there is a substantial probability that he will attain [competence] in the foreseeable future." Jackson v. Indiana, 406 U. S. 715, 738 (1972).21 The Oklahoma Court of Criminal Appeals correctly ob- served that the "inexactness and uncertainty" that charac- terize competency proceedings may make it difficult to deter- mine whether a defendant is incompetent or malingering. 889 P. 2d, at 303. We presume, however, that it is unusual for even the most artful malingerer to feign incompetence successfully for a period of time while under professional care.22 In this regard it is worth reiterating that only four jurisdictions currently consider it necessary to impose on the criminal defendant the burden of proving incompetence by clear and convincing evidence. Moreover, there is no reason to believe that the art of dissimilation is new. Eighteenth and nineteenth century courts, for example, warned jurors charged with making competency determinations that " `there may be great fraud in this matter,' " King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep., at 136, n. (a) (quoting 21 Under Jackson, if the defendant regains competence or is found to be malingering, the State may proceed to trial. 22 Sir John Hawles, Solicitor General to King William III (who reigned from 1689­1702), noted that "there is a great difference between pretences and realities, and sana and non sana memoria hath been often tryed in capital matters, and the prisoners have reaped so little benefit by their pretences, it being always discovered, that we rarely hear of it." Hawles, Remarks on the Trial of Mr. Charles Bateman (1685), 11 How. St. Tr. 474, 478 (1816). 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT 366 COOPER v. OKLAHOMA Opinion of the Court 1 Hale, Pleas of the Crown, at *35), and that "[i]t would be a reproach to justice if a guilty man . . . postponed his trial upon a feigned condition of mind, as to his inability to aid in his defense," United States v. Chisolm, 149 F., at 288.23 Although they recognized this risk, the early authorities did not resort to a heightened burden of proof in competency proceedings. See Part III, supra. More fundamentally, while the difficulty of ascertaining where the truth lies may make it appropriate to place the burden of proof on the proponent of an issue, it does not justify the additional onus of an especially high standard of proof. As the Chisolm Court continued, "[I]t would be likewise a reproach to justice and our institutions, if a human being . . . were compelled to go to trial at a time when he is not sufficiently in possession of his mental faculties to enable him to make a rational and proper defense. The latter would be a more griev- ous error than the former; since in the one case an indi- vidual would go unwhipped of justice, while in the other the great safeguards which the law adopts in the punish- ment of crime and the upholding of justice would be rudely invaded by the tribunal whose sacred duty it is to uphold the law in all its integrity." 149 F., at 288. A heightened standard does not decrease the risk of error, but simply reallocates that risk between the parties. See Cruzan v. Director, Mo. Dept. of Health, 497 U. S., at 283. In cases in which competence is at issue, we perceive no sound basis for allocating to the criminal defendant the large share of the risk which accompanies a clear and convincing evidence standard. We assume that questions of compe- tence will arise in a range of cases including not only those in which one side will prevail with relative ease, but also those in which it is more likely than not that the defendant 23 See also People v. Lake, 2 N. Y. 215, 220, 222 (1855); State v. Harris, 78 Am. Dec. 272, 274 (N. C. 1860); State v. Tyler, 7 Ohio N. P., at 444. 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 367 Opinion of the Court is incompetent but the evidence is insufficiently strong to satisfy a clear and convincing standard. While important state interests are unquestionably at stake, in these latter cases the defendant's fundamental right to be tried only while competent outweighs the State's interest in the effi- cient operation of its criminal justice system. V Oklahoma makes two additional arguments in support of its procedural rule that warrant discussion. First, Okla- homa correctly reminds us that it is normally within the power of the State to establish the procedures through which its laws are given effect, including those related to the bur- den of producing evidence and the burden of persuasion. See Patterson v. New York, 432 U. S., at 201­202. In Patter- son we upheld New York's requirement that in a prosecution for second-degree murder the defendant must bear the bur- den of proving the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter. Id., at 207­208. After observing that the rule was consist- ent with common-law practice, id., at 202, we held that "[t]he Due Process Clause . . . does not put New York to the choice of abandoning [statutory] defenses or undertaking to dis- prove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment," id., at 207­208. Although we found no violation in Patterson, we noted that the State's power to regulate procedural burdens was subject to proscription under the Due Process Clause if it "offends some principle of justice so rooted in the tradi- tions and conscience of our people as to be ranked as funda- mental," id., at 201­202 (internal quotation marks omitted). This case involves such a rule. Unlike Patterson, which concerned procedures for proving a statutory defense, we consider here whether a State's procedures for guaranteeing a fundamental constitutional right are sufficiently protective 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT 368 COOPER v. OKLAHOMA Opinion of the Court of that right. The deep roots and fundamental character of the defendant's right not to stand trial when it is more likely than not that he lacks the capacity to understand the nature of the proceedings against him or to communicate effectively with counsel mandate constitutional protection. Finally, Oklahoma suggests that our decision in Addington v. Texas, 441 U. S. 418 (1979), in which we held that due proc- ess requires a clear and convincing standard of proof in an involuntary civil commitment proceeding, supports imposi- tion of such a rule in competency proceedings. The argu- ment is unpersuasive because commitment and competency proceedings address entirely different substantive issues. Although we have not had the opportunity to consider the outer limits of a State's authority to civilly commit an unwill- ing individual, O'Connor v. Donaldson, 422 U. S. 563, 573­ 574 (1975), our decision in Donaldson makes clear that due process requires at a minimum a showing that the person is mentally ill and either poses a danger to himself or others or is incapable of "surviving safely in freedom," id., at 573­ 576. The test for competence to stand trial, by contrast, is whether the defendant has the present ability to understand the charges against him and communicate effectively with defense counsel. Dusky v. United States, 362 U. S., at 402. Even if we were to uphold Oklahoma's imposition of the clear and convincing evidence rule in competency proceedings, the comparable standards in the two proceedings would not guarantee parallel results.24 More importantly, our decision today is in complete accord with the basis for our ruling in Addington. Both cases con- cern the proper protection of fundamental rights in circum- stances in which the State proposes to take drastic action against an individual. The requirement that the grounds for civil commitment be shown by clear and convincing evidence 24 For example, a mentally retarded defendant accused of a nonviolent crime may be found incompetent to stand trial but not necessarily be sub- ject to involuntary civil commitment. 517US2$44I 02-07-99 16:49:58 PAGES OPINPGT Cite as: 517 U. S. 348 (1996) 369 Opinion of the Court protects the individual's fundamental interest in liberty. The prohibition against requiring the criminal defendant to demonstrate incompetence by clear and convincing evidence safeguards the fundamental right not to stand trial while incompetent. Because Oklahoma's procedural rule allows the State to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process.25 VI For the foregoing reasons, the judgment is reversed, and the case is remanded to the Oklahoma Court of Criminal Appeals for further proceedings not inconsistent with this opinion. It is so ordered. 25 We note that Addington did not purport to resolve any question con- cerning the rights of the defendant in a criminal proceeding. To the con- trary, in his opinion for the Court, Chief Justice Burger contrasted the appropriate standard in civil commitment proceedings with the rules ap- plicable in criminal cases in which "the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment." 441 U. S., at 423. 517us2$45z 02-19-99 11:08:02 PAGES OPINPGT 370 OCTOBER TERM, 1995 Syllabus MARKMAN et al. v. WESTVIEW INSTRUMENTS, INC., et al. certiorari to the united states court of appeals for the federal circuit No. 95­26. Argued January 8, 1996-Decided April 23, 1996 Petitioner Markman owns the patent to a system that tracks clothing through the dry-cleaning process using a keyboard and data processor to generate transaction records, including a bar code readable by optical detectors. According to the patent's claim, the portion of the patent document that defines the patentee's rights, Markman's product can "maintain an inventory total" and "detect and localize spurious additions to inventory." The product of respondent Westview Instruments, Inc., also uses a keyboard and processor and lists dry-cleaning charges on bar-coded tickets that can be read by optical detectors. In this in- fringement suit, after hearing an expert witness testify about the mean- ing of the claim's language, the jury found that Westview's product had infringed Markman's patent. The District Court nevertheless directed a verdict for Westview on the ground that its device is unable to track "inventory" as that term is used in the claim. The Court of Appeals affirmed, holding the interpretation of claim terms to be the exclusive province of the court and the Seventh Amendment to be consistent with that conclusion. Held: The construction of a patent, including terms of art within its claim, is exclusively within the province of the court. Pp. 376­391. (a) The Seventh Amendment right of trial by jury is the right which existed under the English common law when the Amendment was adopted. Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 657. Thus, the Court asks, first, whether infringement cases either were tried at law at the time of the founding or are at least analogous to a cause of action that was. There is no dispute that infringement cases today must be tried before a jury, as their predecessors were more than two centuries ago. This conclusion raises a second question: whether the particular trial issue (here a patent claim's construction) is necessarily a jury issue. This question is answered by comparing the modern practice to historical sources. Where there is no exact ante- cedent in the common law, the modern practice should be compared to earlier practices whose allocation to court or jury is known, and the 517us2$45z 02-19-99 11:08:02 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 371 Syllabus best analogy that can be drawn between an old and the new must be sought. Pp. 376­378. (b) There is no direct antecedent of modern claim construction in the historical sources. The closest 18th-century analogue to modern claim construction seems to have been the construction of patent specifica- tions describing the invention. Early patent cases from England and this Court show that judges, not juries, construed specification terms. No authority from this period supports Markman's contention that even if judges were charged with construing most patent terms, the art of defining terms of art in a specification fell within the jury's province. Pp. 378­384. (c) Since evidence of common-law practice at the time of the framing does not entail application of the Seventh Amendment's jury guarantee to the construction of the claim document, this Court must look else- where to characterize this determination of meaning in order to allocate it as between judge or jury. Existing precedent, the relative interpre- tive skills of judges and juries, and statutory policy considerations all favor allocating construction issues to the court. As the former patent practitioner, Justice Curtis, explained, the first issue in a patent case, construing the patent, is a question of law, to be determined by the court. The second issue, whether infringement occurred, is a question of fact for a jury. Winans v. Denmead, 15 How. 330, 338. Contrary to Markman's contention, Bischoff v. Wethered, 9 Wall. 812, and Tucker v. Spalding, 13 Wall. 453, neither indicate that 19th-century juries resolved the meaning of patent terms of art nor undercut Justice Curtis's author- ity. Functional considerations also favor having judges define patent terms of art. A judge, from his training and discipline, is more likely to give proper interpretation to highly technical patents than a jury and is in a better position to ascertain whether an expert's proposed defini- tion fully comports with the instrument as a whole. Finally, the need for uniformity in the treatment of a given patent favors allocation of construction issues to the court. Pp. 384­391. 52 F. 3d 967, affirmed. Souter, J., delivered the opinion for a unanimous Court. William B. Mallin argued the cause for petitioners. With him on the briefs were Timothy P. Ryan, Timothy S. Coon, Lewis F. Gould, Jr., and Stephan P. Gribok. 517us2$45z 02-19-99 11:08:02 PAGES OPINPGT 372 MARKMAN v. WESTVIEW INSTRUMENTS, INC. Opinion of the Court Frank H. Griffin III argued the cause for respondents. With him on the brief were Peter A. Vogt and Polly M. Shaffer.* Justice Souter delivered the opinion of the Court. The question here is whether the interpretation of a so- called patent claim, the portion of the patent document that defines the scope of the patentee's rights, is a matter of law reserved entirely for the court, or subject to a Seventh Amendment guarantee that a jury will determine the mean- ing of any disputed term of art about which expert testimony is offered. We hold that the construction of a patent, includ- ing terms of art within its claim, is exclusively within the province of the court. *Jeffrey Robert White, Pamela A. Liapakis, and Joseph W. Cotchett filed a brief for the Association of Trial Lawyers of America as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Intellectual Property Law Association by Don W. Martens, Charles L. Gholz, R. Carl Moy, Roger W. Parkhurst, Joseph R. Re, Paul A. Stewart, and Harold C. Wegner; for the Federal Circuit Bar Association by David H. T. Kane and Rudolph P. Hofmann; for the Dallas-Fort Worth Intellec- tual Property Law Association; for Honeywell, Inc., by Richard G. Taranto and David L. Shapiro; for Intellectual Property Owners by Rex E. Lee, Carter G. Phillips, Mark E. Haddad, and Constantine L. Trela; for Matsu- shita Electric Corp. of America et al. by Morton Amster and Joel E. Lutz- ker; for United States Surgical Corp. by John G. Kester, J. Alan Galbraith, William E. McDaniels, Arthur R. Miller, Thomas R. Bremer, and John C. Andres; for John T. Roberts, pro se; and for Douglas W. Wyatt by Mr. Wyatt, pro se, Paul M. Janicke, and John R. Kirk, Jr. Briefs of amici curiae were filed for Airtouch Communications, Inc., by Allan N. Littman and Robert P. Taylor; for the American Automobile Manufacturers Association by Charles W. Bradley, Stanley L. Amberg, Phillip D. Brady, and Andrew D. Koblenz; for the American Board of Trial Advocates by Robert G. Vial; for Exxon Corp. et al. by Donald B. Craven, Gerald Goldman, James P. Tuite, and James R. Lovelace; and for Litton Systems, Inc., by Laurence H. Tribe, Jonathan S. Massey, and Kenneth J. Chesebro. 517us2$45M 02-19-99 11:08:02 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 373 Opinion of the Court I The Constitution empowers Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Art. I, § 8, cl. 8. Congress first exercised this authority in 1790, when it pro- vided for the issuance of "letters patent," Act of Apr. 10, 1790, ch. 7, § 1, 1 Stat. 109, which, like their modern counter- parts, granted inventors "the right to exclude others from making, using, offering for sale, selling, or importing the pat- ented invention," in exchange for full disclosure of an inven- tion, H. Schwartz, Patent Law and Practice 1, 33 (2d ed. 1995). It has long been understood that a patent must de- scribe the exact scope of an invention and its manufacture to "secure to [the patentee] all to which he is entitled, [and] to apprise the public of what is still open to them." McClain v. Ortmayer, 141 U. S. 419, 424 (1891). Under the modern American system, these objectives are served by two dis- tinct elements of a patent document. First, it contains a specification describing the invention "in such full, clear, con- cise, and exact terms as to enable any person skilled in the art . . . to make and use the same." 35 U. S. C. § 112; see also 3 E. Lipscomb, Walker on Patents § 10:1, pp. 183­184 (3d ed. 1985) (Lipscomb) (listing the requirements for a specifi- cation). Second, a patent includes one or more "claims," which "particularly poin[t] out and distinctly clai[m] the sub- ject matter which the applicant regards as his invention." 35 U. S. C. § 112. "A claim covers and secures a process, a machine, a manufacture, a composition of matter, or a design, but never the function or result of either, nor the scientific explanation of their operation." 6 Lipscomb § 21:17, at 315­ 316. The claim "define[s] the scope of a patent grant," 3 id., § 11:1, at 280, and functions to forbid not only exact copies of an invention, but products that go to "the heart of an inven- tion but avoids the literal language of the claim by making a 517us2$45M 02-19-99 11:08:02 PAGES OPINPGT 374 MARKMAN v. WESTVIEW INSTRUMENTS, INC. Opinion of the Court noncritical change," Schwartz, supra, at 82.1 In this opin- ion, the word "claim" is used only in this sense peculiar to patent law. Characteristically, patent lawsuits charge what is known as infringement, Schwartz, supra, at 75, and rest on allega- tions that the defendant "without authority ma[de], use[d] or [sold the] patented invention, within the United States dur- ing the term of the patent therefor . . . ." 35 U. S. C. § 271(a). Victory in an infringement suit requires a finding that the patent claim "covers the alleged infringer's product or proc- ess," which in turn necessitates a determination of "what the words in the claim mean." Schwartz, supra, at 80; see also 3 Lipscomb § 11:2, at 288­290. Petitioner in this infringement suit, Markman, owns United States Reissue Patent No. 33,054 for his "Inventory Control and Reporting System for Drycleaning Stores." The patent describes a system that can monitor and report the status, location, and movement of clothing in a dry- cleaning establishment. The Markman system consists of a keyboard and data processor to generate written records for each transaction, including a bar code readable by opti- cal detectors operated by employees, who log the progress of clothing through the dry-cleaning process. Respondent Westview's product also includes a keyboard and processor, and it lists charges for the dry-cleaning services on bar-coded tickets that can be read by portable optical detectors. Markman brought an infringement suit against Westview and Althon Enterprises, an operator of dry-cleaning estab- 1 Thus, for example, a claim for a ceiling fan with three blades attached to a solid rod connected to a motor would not only cover fans that take precisely this form, but would also cover a similar fan that includes some additional feature, e. g., such a fan with a cord or switch for turning it on and off, and may cover a product deviating from the core design in some noncritical way, e. g., a three-bladed ceiling fan with blades attached to a hollow rod connected to a motor. H. Schwartz, Patent Law and Practice 81­82 (2d ed. 1995). 517us2$45M 02-19-99 11:08:02 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 375 Opinion of the Court lishments using Westview's products (collectively, West- view). Westview responded that Markman's patent is not infringed by its system because the latter functions merely to record an inventory of receivables by tracking invoices and transaction totals, rather than to record and track an inventory of articles of clothing. Part of the dispute hinged upon the meaning of the word "inventory," a term found in Markman's independent claim 1, which states that Mark- man's product can "maintain an inventory total" and "detect and localize spurious additions to inventory." The case was tried before a jury, which heard, among others, a witness produced by Markman who testified about the meaning of the claim language. After the jury compared the patent to Westview's device, it found an infringement of Markman's independent claim 1 and dependent claim 10.2 The District Court nevertheless granted Westview's deferred motion for judgment as a mat- ter of law, one of its reasons being that the term "inventory" in Markman's patent encompasses "both cash inventory and the actual physical inventory of articles of clothing." 772 F. Supp. 1535, 1537­1538 (ED Pa. 1991). Under the trial court's construction of the patent, the production, sale, or use of a tracking system for dry cleaners would not infringe Markman's patent unless the product was capable of tracking articles of clothing throughout the cleaning process and gen- erating reports about their status and location. Since West- view's system cannot do these things, the District Court di- rected a verdict on the ground that Westview's device does not have the "means to maintain an inventory total" and thus cannot " `detect and localize spurious additions to inventory as well as spurious deletions therefrom,' " as required by claim 1. Id., at 1537. 2 Dependent claim 10 specifies that, in the invention of claim 1, the input device is an alpha-numeric keyboard in which single keys may be used to enter the attributes of the items in question. 517us2$45M 02-19-99 11:08:02 PAGES OPINPGT 376 MARKMAN v. WESTVIEW INSTRUMENTS, INC. Opinion of the Court Markman appealed, arguing it was error for the District Court to substitute its construction of the disputed claim term `inventory' for the construction the jury had presum- ably given it. The United States Court of Appeals for the Federal Circuit affirmed, holding the interpretation of claim terms to be the exclusive province of the court and the Sev- enth Amendment to be consistent with that conclusion. 52 F. 3d 967 (1995). Markman sought our review on each point, and we granted certiorari. 515 U. S. 1192 (1995). We now affirm. II The Seventh Amendment provides that "[i]n Suits at com- mon law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . ." U. S. Const., Amdt. 7. Since Justice Story's day, United States v. Wonson, 28 F. Cas. 745, 750 (No. 16,750) (CC Mass. 1812), we have understood that "[t]he right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted." Balti- more & Carolina Line, Inc. v. Redman, 295 U. S. 654, 657 (1935). In keeping with our longstanding adherence to this "historical test," Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 640­643 (1973), we ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was, see, e. g., Tull v. United States, 481 U. S. 412, 417 (1987). If the action in question belongs in the law category, we then ask whether the partic- ular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791. See infra, at 377­378.3 3 Our formulations of the historical test do not deal with the possibility of conflict between actual English common-law practice and American as- sumptions about what that practice was, or between English and Ameri- can practices at the relevant time. No such complications arise in this case. 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 377 Opinion of the Court A As to the first issue, going to the character of the cause of action, "[t]he form of our analysis is familiar. `First we com- pare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity.' " Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 42 (1989) (citation omitted). Equally familiar is the descent of today's patent infringement action from the in- fringement actions tried at law in the 18th century, and there is no dispute that infringement cases today must be tried to a jury, as their predecessors were more than two centuries ago. See, e. g., Bramah v. Hardcastle, 1 Carp. P. C. 168 (K. B. 1789). B This conclusion raises the second question, whether a par- ticular issue occurring within a jury trial (here the construc- tion of a patent claim) is itself necessarily a jury issue, the guarantee being essential to preserve the right to a jury's resolution of the ultimate dispute. In some instances the answer to this second question may be easy because of clear historical evidence that the very subsidiary question was so regarded under the English practice of leaving the issue for a jury. But when, as here, the old practice provides no clear answer, see infra, at 378­380, we are forced to make a judg- ment about the scope of the Seventh Amendment guarantee without the benefit of any foolproof test. The Court has repeatedly said that the answer to the sec- ond question "must depend on whether the jury must shoul- der this responsibility as necessary to preserve the `sub- stance of the common-law right of trial by jury.' " Tull v. United States, supra, at 426 (emphasis added) (quoting Col- grove v. Battin, 413 U. S. 149, 157 (1973)); see also Balti- more & Carolina Line, supra, at 657. " ` "Only those inci- dents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed be- 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT 378 MARKMAN v. WESTVIEW INSTRUMENTS, INC. Opinion of the Court yond the reach of the legislature." ' " Tull v. United States, supra, at 426 (citations omitted); see also Galloway v. United States, 319 U. S. 372, 392 (1943). The "substance of the common-law right" is, however, a pretty blunt instrument for drawing distinctions. We have tried to sharpen it, to be sure, by reference to the distinction between substance and procedure. See Baltimore & Caro- lina Line, supra, at 657; see also Galloway v. United States, supra, at 390­391; Ex parte Peterson, 253 U. S. 300, 309 (1920); Walker v. New Mexico & Southern Pacific R. Co., 165 U. S. 593, 596 (1897); but see Sun Oil Co. v. Wortman, 486 U. S. 717, 727 (1988). We have also spoken of the line as one between issues of fact and law. See Baltimore & Carolina Line, supra, at 657; see also Ex parte Peterson, supra, at 310; Walker v. New Mexico & Southern Pacific R. Co., supra, at 597; but see Pullman-Standard v. Swint, 456 U. S. 273, 288 (1982). But the sounder course, when available, is to classify a mongrel practice (like construing a term of art following re- ceipt of evidence) by using the historical method, much as we do in characterizing the suits and actions within which they arise. Where there is no exact antecedent, the best hope lies in comparing the modern practice to earlier ones whose allocation to court or jury we do know, cf. Balti- more & Carolina Line, supra, at 659, 660; Dimick v. Schiedt, 293 U. S. 474, 477, 482 (1935), seeking the best analogy we can draw between an old and the new, see Tull v. United States, supra, at 420­421 (we must search the English com- mon law for "appropriate analogies" rather than a "precisely analogous common-law cause of action"). C "Prior to 1790 nothing in the nature of a claim had ap- peared either in British patent practice or in that of the 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 379 Opinion of the Court American states," Lutz, Evolution of the Claims of U. S. Pat- ents, 20 J. Pat. Off. Soc. 134 (1938), and we have accordingly found no direct antecedent of modern claim construction in the historical sources. Claim practice did not achieve statu- tory recognition until the passage of the Act of July 4, 1836, ch. 357, § 6, 5 Stat. 119, and inclusion of a claim did not be- come a statutory requirement until 1870, Act of July 8, 1870, ch. 230, § 26, 16 Stat. 201; see 1 A. Deller, Patent Claims § 4, p. 9 (2d ed. 1971). Although, as one historian has observed, as early as 1850 "judges were . . . beginning to express more frequently the idea that in seeking to ascertain the inven- tion `claimed' in a patent the inquiry should be limited to interpreting the summary, or `claim,' " Lutz, supra, at 145, "[t]he idea that the claim is just as important if not more im- portant than the description and drawings did not develop until the Act of 1870 or thereabouts." Deller, supra, § 4, at 9. At the time relevant for Seventh Amendment analogies, in contrast, it was the specification, itself a relatively new development, H. Dutton, The Patent System and Inven- tive Activity During the Industrial Revolution, 1750­1852, pp. 75­76 (1984), that represented the key to the patent. Thus, patent litigation in that early period was typified by so-called novelty actions, testing whether "any essential part of [the patent had been] disclosed to the public before," Hud- dart v. Grimshaw, Dav. Pat. Cas. 265, 298 (K. B. 1803), and "enablement" cases, in which juries were asked to determine whether the specification described the invention well enough to allow members of the appropriate trade to repro- duce it, see, e. g., Arkwright v. Nightingale, Dav. Pat. Cas. 37, 60 (C. P. 1785). The closest 18th-century analogue of modern claim con- struction seems, then, to have been the construction of specifications, and as to that function the mere smattering 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT 380 MARKMAN v. WESTVIEW INSTRUMENTS, INC. Opinion of the Court of patent cases that we have from this period 4 shows no established jury practice sufficient to support an argument by analogy that today's construction of a claim should be a guaranteed jury issue. Few of the case reports even touch upon the proper interpretation of disputed terms in the spec- ifications at issue, see, e. g., Bramah v. Hardcastle, 1 Carp. P. C. 168 (K. B. 1789); King v. Else, 1 Carp. P. C. 103, Dav. Pat. Cas. 144 (K. B. 1785); Dollond's Case, 1 Carp. P. C. 28 (C. P. 1758); Administrators of Calthorp v. Waymans, 3 Keb. 710, 84 Eng. Rep. 966 (K. B. 1676), and none demonstrates that the definition of such a term was determined by the jury.5 This absence of an established practice should not surprise us, given the primitive state of jury patent practice at the end of the 18th century, when juries were still new to the field. Although by 1791 more than a century had passed since the enactment of the Statute of Monopolies, which pro- 4 Before the turn of the century, "no more than twenty-two [reported] cases came before the superior courts of London." H. Dutton, The Patent System and Inventive Activity During the Industrial Revolution, 1750­ 1852, p. 71 (1984). 5 Markman relies heavily upon Justice Buller's notes of Lord Mansfield's instructions in Liardet v. Johnson (K. B. 1778), in 1 J. Oldham, The Mans- field Manuscripts and the Growth of English Law in the Eighteenth Cen- tury 748 (1992). Liardet was an enablement case about the invention of stucco, in which a defendant asserted that the patent was invalid because it did not fully describe the appropriate method for producing the sub- stance. Even setting aside concerns about the accuracy of the summary of the jury instructions provided for this case from outside the established reports, see 1 Oldham, supra, at 752, n. 11, it does not show that juries construed disputed terms in a patent. From its ambiguous references, e. g., 1 Oldham, supra, at 756 ("[Lord Mansfield] left to the jury 1st, on all objections made to exactness, certainty and propriety of the Specifica- tion, & whether any workman could make it by [the Specification]"), we cannot infer the existence of an established practice, cf. Galloway v. United States, 319 U. S. 372, 392 (1943) (expressing concern regarding the "uncertainty and the variety of conclusions which follows from an effort at purely historical accuracy"), especially when, as here, the inference is undermined by evidence that judges, rather than jurors, ordinarily con- strued written documents at the time. See infra, at 381­383. 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 381 Opinion of the Court vided that the validity of any monopoly should be deter- mined in accordance with the common law, patent litigation had remained within the jurisdiction of the Privy Council until 1752 and hence without the option of a jury trial. E. Walterscheid, Early Evolution of the United States Patent Law: Antecedents (Part 3), 77 J. Pat. & Tm. Off. Soc. 771, 771­776 (1995). Indeed, the state of patent law in the common-law courts before 1800 led one historian to observe that "the reported cases are destitute of any decision of im- portance . . . . At the end of the eighteenth century, there- fore, the Common Law Judges were left to pick up the threads of the principles of law without the aid of recent and reliable precedents." Hulme, On the Consideration of the Patent Grant, Past and Present, 13 L. Q. Rev. 313, 318 (1897). Earlier writers expressed similar discouragement at patent law's amorphous character,6 and, as late as the 1830's, Eng- lish commentators were irked by enduring confusion in the field. See Dutton, supra, at 69­70. Markman seeks to supply what the early case reports lack in so many words by relying on decisions like Turner v. Win- ter, 1 T. R. 602, 99 Eng. Rep. 1274 (K. B. 1787), and Ark- wright v. Nightingale, Dav. Pat. Cas. 37 (C. P. 1785), to argue that the 18th-century juries must have acted as definers of patent terms just to reach the verdicts we know they ren- dered in patent cases turning on enablement or novelty. But the conclusion simply does not follow. There is no more reason to infer that juries supplied plenary interpretation of written instruments in patent litigation than in other cases implicating the meaning of documentary terms, and we do know that in other kinds of cases during this period judges, 6 See, e. g., Boulton and Watt v. Bull, 2 H. Bl. 463, 491, 126 Eng. Rep. 651, 665 (C. P. 1795) (Eyre, C. J.) ("Patent rights are no where that I can find accurately discussed in our books"); Dutton, supra n. 4, at 70­71 (quot- ing Abraham Weston as saying "it may with truth be said that the [Law] Books are silent on the subject [of patents] and furnish no clue to go by, in agitating the Question What is the Law of Patents?"). 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT 382 MARKMAN v. WESTVIEW INSTRUMENTS, INC. Opinion of the Court not juries, ordinarily construed written documents.7 The probability that the judges were doing the same thing in the patent litigation of the time is confirmed by the fact that as soon as the English reports did begin to describe the con- struction of patent documents, they show the judges constru- ing the terms of the specifications. See Bovill v. Moore, Dav. Pat. Cas. 361, 399, 404 (C. P. 1816) (judge submits ques- tion of novelty to the jury only after explaining some of the language and "stat[ing] in what terms the specification runs"); cf. Russell v. Cowley & Dixon, Webs. Pat. Cas. 457, 467­470 (Exch. 1834) (construing the terms of the specifica- tion in reviewing a verdict); Haworth v. Hardcastle, Webs. Pat. Cas. 480, 484­485 (1834) (same). This evidence is in fact buttressed by cases from this Court; when they first reveal actual practice, the practice revealed is of the judge construing the patent. See, e. g., Winans v. New York & Erie R. Co., 21 How. 88, 100 (1859); Winans v. Denmead, 15 How. 330, 338 (1854); Hogg v. Emerson, 6 How. 437, 484 (1848); cf. Parker v. Hulme, 18 F. Cas. 1138 (No. 10,740) (CC ED Pa. 1849). These indications of our patent practice are the more impressive for being all of a piece with what we know about the analogous contemporary practice of inter- 7 See, e. g., Devlin, Jury Trial of Complex Cases: English Practice at the Time of the Seventh Amendment, 80 Colum. L. Rev. 43, 75 (1980); Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Calif. L. Rev. 1867, 1932 (1966). For example, one historian observed that it was generally the practice of judges in the late 18th century "to keep the construction of writings out of the jury's hands and reserve it for themselves," a "safe- guard" designed to prevent a jury from "constru[ing] or refin[ing] it at pleasure." 9 J. Wigmore, Evidence § 2461, p. 194 (J. Chadbourn rev. ed. 1981) (emphasis in original; internal quotation marks omitted). The ab- sence of any established practice supporting Markman's view is also shown by the disagreement between Justices Willis and Buller, reported in Mac- beath v. Haldimand, 1 T. R. 173, 180­182, 99 Eng. Rep. 1036, 1040­1041 (K. B. 1786), as to whether juries could ever construe written documents when their meaning was disputed. 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 383 Opinion of the Court preting terms within a land patent, where it fell to the judge, not the jury, to construe the words.8 D Losing, then, on the contention that juries generally had interpretive responsibilities during the 18th century, Mark- man seeks a different anchor for analogy in the more modest contention that even if judges were charged with constru- ing most terms in the patent, the art of defining terms of art employed in a specification fell within the province of the jury. Again, however, Markman has no authority from the period in question, but relies instead on the later case of Neilson v. Harford, Webs. Pat. Cas. 328 (Exch. 1841). There, an exchange between the judge and the lawyers indi- cated that although the construction of a patent was ordi- narily for the court, id., at 349 (Alderson, B.), judges should "leav[e] the question of words of art to the jury," id., at 350 (Alderson, B.); see also id., at 370 (judgment of the court); Hill v. Evans, 4 De. G. F. & J. 288, 293­294, 45 Eng. Rep. 1195, 1197 (Ch. 1862). Without, however, in any way dispar- aging the weight to which Baron Alderson's view is entitled, the most we can say is that an English report more than 70 years after the time that concerns us indicates an exception to what probably had been occurring earlier.9 In place of 8 As we noted in Brown v. Huger, 21 How. 305, 318 (1859): "With regard to the second part of this objection, that which claims for the jury the construction of the patent, we remark that the patent itself must be taken as evidence of its meaning; that, like other written instru- ments, it must be interpreted as a whole . . . and the legal deductions drawn therefrom must be conformable with the scope and purpose of the entire document. This construction and these deductions we hold to be within the exclusive province of the court." 9 In explaining that judges generally construed all terms in a written document at the end of the 18th century, one historian observed that "[i]n- terpretation by local usage for example (today the plainest case of legiti- mate deviation from the normal standard) was still but making its way." 9 Wigmore, Evidence § 2461, at 195; see also id., at 195, and n. 6 (provid- ing examples of this practice). We need not in any event consider here 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT 384 MARKMAN v. WESTVIEW INSTRUMENTS, INC. Opinion of the Court Markman's inference that this exceptional practice existed in 1791 there is at best only a possibility that it did, and for anything more than a possibility we have found no schol- arly authority. III Since evidence of common-law practice at the time of the framing does not entail application of the Seventh Amend- ment's jury guarantee to the construction of the claim docu- ment, we must look elsewhere to characterize this determi- nation of meaning in order to allocate it as between court or jury. We accordingly consult existing precedent 10 and con- sider both the relative interpretive skills of judges and juries and the statutory policies that ought to be furthered by the allocation. A The two elements of a simple patent case, construing the patent and determining whether infringement occurred, were characterized by the former patent practitioner, Justice Curtis.11 "The first is a question of law, to be determined by the court, construing the letters-patent, and the descrip- tion of the invention and specification of claim annexed to them. The second is a question of fact, to be submitted to a jury." Winans v. Denmead, supra, at 338; see Winans v. whether our conclusion that the Seventh Amendment does not require terms of art in patent claims to be submitted to the jury supports a similar result in other types of cases. 10 Because we conclude that our precedent supports classifying the ques- tion as one for the court, we need not decide either the extent to which the Seventh Amendment can be said to have crystallized a law/fact distinc- tion, cf. Ex parte Peterson, 253 U. S. 300, 310 (1920); Walker v. New Mex- ico & Southern Pacific R. Co., 165 U. S. 593, 597 (1897), or whether post- 1791 precedent classifying an issue as one of fact would trigger the protections of the Seventh Amendment if (unlike this case) there were no more specific reason for decision. 11 See 1 A Memoir of Benjamin Robbins Curtis, L. L. D., 84 (B. Curtis ed. 1879); cf. O'Reilly v. Morse, 15 How. 62, 63 (1854) (noting his involve- ment in a patent case). 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 385 Opinion of the Court New York & Erie R. Co., supra, at 100; Hogg v. Emerson, supra, at 484; cf. Parker v. Hulme, supra, at 1140. In arguing for a different allocation of responsibility for the first question, Markman relies primarily on two cases, Bischoff v. Wethered, 9 Wall. 812 (1870), and Tucker v. Spal- ding, 13 Wall. 453 (1872). These are said to show that evi- dence of the meaning of patent terms was offered to 19th- century juries, and thus to imply that the meaning of a documentary term was a jury issue whenever it was subject to evidentiary proof. That is not what Markman's cases show, however. In order to resolve the Bischoff suit implicating the con- struction of rival patents, we considered "whether the court below was bound to compare the two specifications, and to instruct the jury, as a matter of law, whether the inventions therein described were, or were not, identical." 9 Wall., at 813 (statement of the case). We said it was not bound to do that, on the ground that investing the court with so disposi- tive a role would improperly eliminate the jury's function in answering the ultimate question of infringement. On that ultimate issue, expert testimony had been admitted on "the nature of the various mechanisms or manufactures described in the different patents produced, and as to the identity or diversity between them." Id., at 814. Although the jury's consideration of that expert testimony in resolving the ques- tion of infringement was said to impinge upon the well- established principle "that it is the province of the court, and not the jury, to construe the meaning of documentary evidence," id., at 815, we decided that it was not so. We said: "[T]he specifications . . . profess to describe mechanisms and complicated machinery, chemical compositions and other manufactured products, which have their exist- ence in pais, outside of the documents themselves; and which are commonly described by terms of the art or mystery to which they respectively belong; and these 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT 386 MARKMAN v. WESTVIEW INSTRUMENTS, INC. Opinion of the Court descriptions and terms of art often require peculiar knowledge and education to understand them aright . . . . Indeed, the whole subject-matter of a patent is an em- bodied conception outside of the patent itself . . . . This outward embodiment of the terms contained in the pat- ent is the thing invented, and is to be properly sought, like the explanation of all latent ambiguities arising from the description of external things, by evidence in pais." Ibid. Bischoff does not then, as Markman contends, hold that the use of expert testimony about the meaning of terms of art requires the judge to submit the question of their con- struction to the jury. It is instead a case in which the Court drew a line between issues of document interpretation and product identification, and held that expert testimony was properly presented to the jury on the latter, ultimate issue, whether the physical objects produced by the patent were identical. The Court did not see the decision as bearing upon the appropriate treatment of disputed terms. As the opinion emphasized, the Court's "view of the case is not in- tended to, and does not, trench upon the doctrine that the construction of written instruments is the province of the court alone. It is not the construction of the instrument, but the character of the thing invented, which is sought in questions of identity and diversity of inventions." Id., at 816 (emphasis added). Tucker, the second case proffered by Markman, is to the same effect. Its reasoning rested ex- pressly on Bischoff, and it just as clearly noted that in ad- dressing the ultimate issue of mixed fact and law, it was for the court to "lay down to the jury the law which should gov- ern them." Tucker, supra, at 455.12 12 We are also unpersuaded by petitioner's heavy reliance upon the deci- sion of Justice Story on circuit in Washburn v. Gould, 29 F. Cas. 312 (No. 17,214) (CC Mass. 1844). Although he wrote that "[t]he jury are to judge of the meaning of words of art, and technical phrases," id., at 325, he did so in describing the decision in Neilson v. Harford, Webs. Pat. Cas. 328 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 387 Opinion of the Court If the line drawn in these two opinions is a fine one, it is one that the Court has drawn repeatedly in explaining the respective roles of the jury and judge in patent cases,13 and one understood by commentators writing in the aftermath of the cases Markman cites. Walker, for example, read Bischoff as holding that the question of novelty is not de- cided by a construction of the prior patent, "but depends rather upon the outward embodiment of the terms contained in the [prior patent]; and that such outward embodiment is to be properly sought, like the explanation of latent ambiguities arising from the description of external things, by evidence in pais." A. Walker, Patent Laws § 75, p. 68 (3d ed. 1895). He also emphasized in the same treatise that matters of claim construction, even those aided by expert testimony, are questions for the court: "Questions of construction are questions of law for the judge, not questions of fact for the jury. As it cannot be expected, however, that judges will always possess the requisite knowledge of the meaning of the terms of art or science used in letters patent, it often becomes necessary that they should avail themselves of the light furnished by experts relevant to the significance of such words and phrases. The judges are not, however, obliged to blindly follow such testimony." Id., § 189, at 173 (footnotes omitted). Virtually the same description of the court's use of evidence in its interpretive role was set out in another contemporary treatise: (Exch. 1841), which we discuss, supra, at 383, and, whether or not he agreed with Neilson, he stated, "[b]ut I do not proceed upon this ground." 29 F. Cas., at 325. 13 See, e. g., Coupe v. Royer, 155 U. S. 565, 579­580 (1895); Silsby v. Foote, 14 How. 218, 226 (1853); Hogg v. Emerson, 6 How. 437, 484 (1848); cf. Brown v. Piper, 91 U. S. 37, 41 (1875); Winans v. New York & Erie R. Co., 21 How. 88, 100 (1859); cf. also U. S. Industrial Chemicals, Inc. v. Carbide & Carbon Chemicals Corp., 315 U. S. 668, 678 (1942). 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT 388 MARKMAN v. WESTVIEW INSTRUMENTS, INC. Opinion of the Court "The duty of interpreting letters-patent has been com- mitted to the courts. A patent is a legal instrument, to be construed, like other legal instruments, according to its tenor. . . . Where technical terms are used, or where the qualities of substances or operations mentioned or any similar data necessary to the comprehension of the language of the patent are unknown to the judge, the testimony of witnesses may be received upon these sub- jects, and any other means of information be employed. But in the actual interpretation of the patent the court proceeds upon its own responsibility, as an arbiter of the law, giving to the patent its true and final charac- ter and force." 2 W. Robinson, Law of Patents § 732, pp. 481­483 (1890) (emphasis added; footnotes omitted). In sum, neither Bischoff nor Tucker indicates that juries re- solved the meaning of terms of art in construing a patent, and neither case undercuts Justice Curtis's authority. B Where history and precedent provide no clear answers, functional considerations also play their part in the choice between judge and jury to define terms of art. We said in Miller v. Fenton, 474 U. S. 104, 114 (1985), that when an issue "falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better posi- tioned than another to decide the issue in question." So it turns out here, for judges, not juries, are the better suited to find the acquired meaning of patent terms. The construction of written instruments is one of those things that judges often do and are likely to do better than jurors unburdened by training in exegesis. Patent con- struction in particular "is a special occupation, requiring, like all others, special training and practice. The judge, from his training and discipline, is more likely to give a proper 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 389 Opinion of the Court interpretation to such instruments than a jury; and he is, therefore, more likely to be right, in performing such a duty, than a jury can be expected to be." Parker v. Hulme, 18 F. Cas., at 1140. Such was the understanding nearly a century and a half ago, and there is no reason to weigh the respective strengths of judge and jury differently in relation to the modern claim; quite the contrary, for "the claims of patents have become highly technical in many respects as the result of special doctrines relating to the proper form and scope of claims that have been developed by the courts and the Pat- ent Office." Woodward, Definiteness and Particularity in Patent Claims, 46 Mich. L. Rev. 755, 765 (1948). Markman would trump these considerations with his argu- ment that a jury should decide a question of meaning pecu- liar to a trade or profession simply because the question is a subject of testimony requiring credibility determinations, which are the jury's forte. It is, of course, true that credibil- ity judgments have to be made about the experts who testify in patent cases, and in theory there could be a case in which a simple credibility judgment would suffice to choose between experts whose testimony was equally consistent with a pat- ent's internal logic. But our own experience with document construction leaves us doubtful that trial courts will run into many cases like that. In the main, we expect, any credibil- ity determinations will be subsumed within the necessarily sophisticated analysis of the whole document, required by the standard construction rule that a term can be defined only in a way that comports with the instrument as a whole. See Bates v. Coe, 98 U. S. 31, 38 (1878); 6 Lipscomb § 21:40, at 393; 2 Robinson, supra, § 734, at 484; Woodward, supra, at 765; cf. U. S. Industrial Chemicals, Inc. v. Carbide & Carbon Chemicals Co., 315 U. S. 668, 678 (1942); cf. 6 Lipscomb § 21:40, at 393. Thus, in these cases a jury's capabilities to evaluate demeanor, cf. Miller, supra, at 114, 117, to sense the "mainsprings of human conduct," Commissioner v. Duberstein, 363 U. S. 278, 289 (1960), or to reflect community 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT 390 MARKMAN v. WESTVIEW INSTRUMENTS, INC. Opinion of the Court standards, United States v. McConney, 728 F. 2d 1195, 1204 (CA9 1984) (en banc), are much less significant than a trained ability to evaluate the testimony in relation to the overall structure of the patent. The decisionmaker vested with the task of construing the patent is in the better position to as- certain whether an expert's proposed definition fully com- ports with the specification and claims and so will preserve the patent's internal coherence. We accordingly think there is sufficient reason to treat construction of terms of art like many other responsibilities that we cede to a judge in the normal course of trial, notwithstanding its evidentiary underpinnings. C Finally, we see the importance of uniformity in the treat- ment of a given patent as an independent reason to allocate all issues of construction to the court. As we noted in Gen- eral Elec. Co. v. Wabash Appliance Corp., 304 U. S. 364, 369 (1938), "[t]he limits of a patent must be known for the protec- tion of the patentee, the encouragement of the inventive ge- nius of others and the assurance that the subject of the pat- ent will be dedicated ultimately to the public." Otherwise, a "zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement claims would dis- courage invention only a little less than unequivocal fore- closure of the field," United Carbon Co. v. Binney & Smith Co., 317 U. S. 228, 236 (1942), and "[t]he public [would] be deprived of rights supposed to belong to it, without being clearly told what it is that limits these rights." Merrill v. Yeomans, 94 U. S. 568, 573 (1877). It was just for the sake of such desirable uniformity that Congress created the Court of Appeals for the Federal Circuit as an exclusive appellate court for patent cases, H. R. Rep. No. 97­312, pp. 20­23 (1981), observing that increased uniformity would "strengthen the United States patent system in such a way as to foster technological growth and industrial innovation." Id., at 20. 517us2$45M 02-19-99 11:08:03 PAGES OPINPGT Cite as: 517 U. S. 370 (1996) 391 Opinion of the Court Uniformity would, however, be ill served by submitting issues of document construction to juries. Making them jury issues would not, to be sure, necessarily leave eviden- tiary questions of meaning wide open in every new court in which a patent might be litigated, for principles of issue preclusion would ordinarily foster uniformity. Cf. Blonder- Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U. S. 313 (1971). But whereas issue preclusion could not be asserted against new and independent infringement de- fendants even within a given jurisdiction, treating interpre- tive issues as purely legal will promote (though it will not guarantee) intrajurisdictional certainty through the appli- cation of stare decisis on those questions not yet subject to interjurisdictional uniformity under the authority of the single appeals court. * * * Accordingly, we hold that the interpretation of the word "inventory" in this case is an issue for the judge, not the jury, and affirm the decision of the Court of Appeals for the Federal Circuit. It is so ordered. 517US2$46z 02-07-99 17:00:59 PAGES OPINPGT 392 OCTOBER TERM, 1995 Syllabus HOLLY FARMS CORP. et al. v. NATIONAL LABOR RELATIONS BOARD et al. certiorari to the united states court of appeals for the fourth circuit No. 95­210. Argued February 21, 1996-Decided April 23, 1996 Respondent National Labor Relations Board (Board) approved a bargain- ing unit at the Wilkesboro, North Carolina, processing plant of peti- tioner Holly Farms Corporation, a vertically integrated poultry pro- ducer. The approved unit included workers described as "live-haul" crews-teams of chicken catchers, forklift operators, and truckdrivers, who collect for slaughter chickens raised as broilers by independent con- tract growers, and transport the birds to the processing plant. On Holly Farms' petition for review, the Fourth Circuit enforced the Board's order. The court held that the Board's classification of the live-haul workers as "employee[s]" protected by the National Labor Relations Act (NLRA or Act), rather than "agricultural laborer[s]" excluded from the Act's coverage by § 2(3) of the NLRA, rested on a reasonable inter- pretation of the Act and was consistent with the Board's prior decisions and with the Eighth Circuit's case law. Held: The Board reasonably aligned the live-haul crews with Holly Farms' processing operations, typing them covered "employee[s]," not exempt "agricultural laborer[s]"; therefore, the Fourth Circuit properly deferred to the Board's determination. Pp. 397­409. (a) The term "agricultural laborer," as used in § 2(3) of the NLRA, derives its meaning from the definition of "agriculture" supplied by § 3(f) of the Fair Labor Standards Act of 1938 (FLSA). This definition in- cludes farming in both a primary sense, which includes "the raising . . . of poultry," and a secondary sense, which encompasses practices "per- formed by a farmer or on a farm as an incident to or in conjunction with such farming operations." When a statutory prescription is not free from ambiguity, the Board must choose between conflicting reasonable interpretations. Courts, in turn, must respect the judgment of the agency empowered to apply the law to varying fact patterns. Bayside Enterprises, Inc. v. NLRB, 429 U. S. 298, 304. Pp. 397­399. (b) The Court confronts no contention that the live-haul crews are engaged in primary agriculture. Thus, the sole question the Court ad- dresses and decides is whether the chicken catchers, forklift operators, and truckdrivers are engaged in secondary agriculture. The live-haul activities are not "performed by a farmer." When an integrated poul- 517US2$46z 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 393 Syllabus try producer contracts with independent growers for the care and feed- ing of chicks hatched in the producer's hatcheries, the producer's status as a farmer ends with respect to those chicks. Bayside, 429 U. S., at 302, n. 9. The producer does not resume farmer status when its live- haul employees arrive on the independent farms to collect broilers for carriage to slaughter and processing. This conclusion entirely disposes of the contention that the truckdrivers are employed in secondary agri- culture, for Holly Farms acknowledges that these crew members do not work "on a farm." Pp. 399­401. (c) The more substantial question is whether the catching and loading of broilers qualifies as work performed "on a farm as an incident to or in conjunction with" the independent growers' farming operations. Holly Farms' position that this work is incident to the raising of poultry is a plausible, but not an inevitable, construction of FLSA § 3(f). Hence, a reviewing court must examine the Board's position only for its reason- ableness as an interpretation of the governing legislation. P. 401. (d) The Board concluded that the collection of broilers for slaughter, although performed "on a farm," is not incidental to farming operations. Rather, the Board determined, the live-haul crews' work is tied to Holly Farms' processing operations. This is a reasonable interpretation of the statute. Once the broilers have grown on the farm for seven weeks, the growers' contractual obligation to raise the birds ends, and the work of the live-haul crew begins. The growers do not assist the crews in catching or loading the chickens, and the crews play no role in the grow- ers' performance of their contractual undertakings. Furthermore, the live-haul employees all work out of the Wilkesboro processing plant, begin and end each shift by punching a timeclock at the plant, and are functionally integrated with other processing-plant employees. It was also sensible for the Board to home in on the status of the crews' em- ployer. Pp. 401­404. (e) The Board's decision adheres to longstanding NLRB precedent, see, e. g., Imco Poultry, Div. of Int'l Multifoods Corp., 202 N. L. R. B. 259, 260, and is supported by the construction of FLSA § 3(f) by the Department of Labor, the agency responsible for administering the FLSA. The Department's interpretative regulations accord with the Board's conclusion that the live-haul crews do not engage in secondary farming and further demonstrate that FLSA § 3(f)'s meaning is not so plain as to bear only one permissible construction in the context at hand. Pp. 405­408. 48 F. 3d 1360, affirmed. Ginsburg, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, and Breyer, JJ., joined. O'Connor, J., filed an opin- 517US2$46z 02-07-99 17:00:59 PAGES OPINPGT 394 HOLLY FARMS CORP. v. NLRB Opinion of the Court ion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined, post, p. 409. Charles P. Roberts III argued the cause and filed briefs for petitioners. Richard H. Seamon argued the cause for respondents. With him on the brief for respondent National Labor Rela- tions Board were Solicitor General Days, Deputy Solicitor General Wallace, Linda Sher, Norton J. Come, and John Emad Arbab. J. David James, Judith A. Scott, Jon Hiatt, Andrew D. Roth, and Laurence Gold filed a brief for respond- ent unions.* Justice Ginsburg delivered the opinion of the Court. This controversy stems from a dispute concerning union representation at the Wilkesboro, North Carolina, headquar- ters facility of Holly Farms, a corporation engaged in the production, processing, and marketing of poultry products. The parties divide, as have federal courts, over the classifi- cation of certain workers, described as "live-haul" crews- teams of chicken catchers, forklift operators, and truckdriv- ers, who collect for slaughter chickens raised as broilers by independent contract growers, and transport the birds to Holly Farms' processing plant. Holly Farms maintains that members of "live-haul" crews are "agricultural laborer[s]," a category of workers exempt from National Labor Relations Act coverage. The National Labor Relations Board dis- agreed and approved a Wilkesboro plant bargaining unit in- cluding those employees. Satisfied that the Board reason- ably aligned the "live-haul" crews with the corporation's *Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Robert P. Davis, John J. Rademacher, Michael F. Rosenblum, and Timothy S. Bishop; and for the National Broiler Council by Gary Jay Kushner, John G. Roberts, Jr., and Jonathan S. Franklin. Joseph A. Wender, Jr., filed a brief for the California Agricultural Labor Relations Board as amicus curiae. 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 395 Opinion of the Court processing operations, typing them covered "employee[s]," not exempt "agricultural laborer[s]," we affirm the Court of Appeals' judgment, which properly deferred to the Board's determination. I A Petitioner Holly Farms Corporation, a wholly owned sub- sidiary of Tyson Foods, Inc., is a vertically integrated poultry producer headquartered in Wilkesboro, North Carolina.1 Holly Farms' activities encompass numerous poultry opera- tions, including hatcheries, a feed mill, an equipment mainte- nance center, and a processing plant. "Broiler" chickens are birds destined for human food mar- kets.2 Holly Farms hatches broiler chicks at its own hatch- eries, and immediately delivers the chicks to the farms of independent contractors. The contractors then raise the birds into full-grown broiler chickens. Holly Farms pays the contract growers for their services, but retains title to the broilers and supplies the food and medicine necessary to their growth. When the broilers are seven weeks old, Holly Farms sends its live-haul crews to reclaim the birds and ferry them to the processing plant for slaughter. The live-haul crews-which typically comprise nine chicken catchers, one forklift opera- tor, and one live-haul driver-travel in a flat-bed truck from Holly Farms' processing plant to the farms of the independ- ent growers. At the farms, the chicken catchers enter the coops, manually capture the broilers, and load them into cages. The forklift operator lifts the caged chickens onto the bed of the truck, and the live-haul driver returns the 1 Holly Farms maintains various facilities throughout the United States, but this controversy concerns only its Wilkesboro operation. 2 Holly Farms' operations also involve birds called "pullets," young chickens destined to serve as laying hens. The live-haul workers whose classification is at issue in this case work exclusively with broilers. 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT 396 HOLLY FARMS CORP. v. NLRB Opinion of the Court truck, with the loaded cases and the crew, to Holly Farms' processing plant. There, the birds are slaughtered and pre- pared for shipment to retail stores. B In 1989, the Chauffeurs, Teamsters and Helpers, Local 391 (Union), filed a representation petition with the National Labor Relations Board (Board or NLRB), seeking an elec- tion in a proposed unit that included live-haul employees working out of Holly Farms' Wilkesboro processing plant. Over Holly Farms' objection, the Board approved the bar- gaining unit, ruling that the live-haul workers were "employ- ee[s]" protected by the National Labor Relations Act (NLRA or Act), 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq., rather than "agricultural laborer[s]" excluded from the Act's coverage by § 2(3) of the NLRA, 29 U. S. C. § 152(3). See Holly Farms Corp., 311 N. L. R. B. 273, 273, n. 4, 284 (1993).3 After further proceedings not relevant here, the Board or- dered the corporation to bargain with the Union as the rep- resentative of the unit. Id., at 285­286. The United States Court of Appeals for the Fourth Circuit enforced the Board's order. The court held that the Board's classification of the live-haul workers as "employee[s]," rather than "agricultural laborer[s]," rested "on a reasonable interpretation of the Act." 48 F. 3d 1360, 1372 (1995). The Board's reading, the court added, was consistent with the NLRB's prior decisions, see Imco Poultry, Div. of Int'l Multifoods Corp., 202 N. L. R. B. 259, 260­261 (1973), ad- hered to in Seaboard Farms of Kentucky, Inc., 311 N. L. R. B. No. 159 (1993), and Draper Valley Farms, Inc., 307 N. L. R. B. 1440 (1992), and with the Eighth Circuit's case law, see NLRB v. Hudson Farms, Inc., 681 F. 2d 1105, 3 Board member Oviatt dissented from the Board's classification of the live-haul employees. He viewed the crew members as "agricultural labor- er[s]," and therefore unprotected by the NLRA. Holly Farms Corp., 311 N. L. R. B., at 287. 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 397 Opinion of the Court 1106 (per curiam), cert. denied, 459 U. S. 1069 (1982), and Valmac Industries, Inc. v. NLRB, 599 F. 2d 246, 249 (1979). 48 F. 3d, at 1371­1372.4 Other Federal Courts of Appeals, in conflict with the Fourth and Eighth Circuits, have held that live-haul workers employed by vertically integrated poultry producers are en- gaged in "agriculture." See, e. g., Coleman v. Sanderson Farms, Inc., 629 F. 2d 1077, 1079 (CA5 1980); NLRB v. Ryckebosch, Inc., 471 F. 2d 20, 21 (CA9 1972). We granted certiorari to resolve the division of authority. 516 U. S. 963 (1995). II The NLRA's protections extend only to workers who qual- ify as "employee[s]" under § 2(3) of the Act. 29 U. S. C. § 152(3). The term "employee," NLRA § 2(3) states, "[does] not include any individual employed as an agricultural la- borer." Ibid. No definition of "agricultural laborer" ap- pears in the NLRA. But annually since 1946, Congress has instructed, in riders to Appropriations Acts for the Board: "[A]gricultural laborer," for NLRA § 2(3) purposes, shall de- rive its meaning from the definition of "agriculture" supplied by § 3(f) of the Fair Labor Standards Act of 1938 (FLSA). See Bayside Enterprises, Inc. v. NLRB, 429 U. S. 298, 300, and n. 6 (1977).5 Section 3(f) of the FLSA provides: " `Agriculture' includes farming in all its branches and among other things includes the cultivation and tillage 4 Judge Niemeyer dissented in relevant part; like dissenting Board mem- ber Oviatt, see supra, at 396, n. 3, he ranked the live-haul employees as "agricultural laborer[s]" unprotected by the NLRA. 48 F. 3d, at 1373. 5 The most recent congressional rider states: "[N]o part of [the Board's] appropriation shall be available to organize or assist in organizing agricul- tural laborers or used in connection with investigations, hearings, direc- tives, or orders concerning bargaining units composed of agricultural la- borers as referred to in section 2(3) of the [NLRA] . . . and as defined in section 3(f) of the [FLSA]." Pub. L. 103­333, Tit. IV, 108 Stat. 2569­2570. 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT 398 HOLLY FARMS CORP. v. NLRB Opinion of the Court of the soil, dairying, the production, cultivation, grow- ing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricul- tural commodities in section 1141j(g) of title 12), the raising of livestock, bees, fur-bearing animals, or poul- try, and any practices (including any forestry or lumber- ing operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming opera- tions, including preparation for market, delivery to stor- age or to market or to carriers for transportation to market." 29 U. S. C. § 203(f). This definition, we have explained, "includes farming in both a primary and a secondary sense." Bayside, 429 U. S., at 300. "Primary farming" includes the occupations listed first in § 3(f): "the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities . . . [and] the rais- ing of livestock, bees, fur-bearing animals, or poultry." 29 U. S. C. § 203(f). "Secondary farming" has a broader mean- ing, encompassing, as stated in the second part of § 3(f): "any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market." Ibid.; see Bayside, 429 U. S., at 300, n. 7; Farmers Reservoir & Irrigation Co. v. McComb, 337 U. S. 755, 763 (1949) (second- ary farming embraces "any practices, whether or not them- selves farming practices, which are performed either by a farmer or on a farm, incidently to or in conjunction with `such' farming operations"). If a statute's meaning is plain, the Board and reviewing courts "must give effect to the unambiguously expressed intent of Congress." Chevron U. S. A. Inc. v. Natural Re- sources Defense Council, Inc., 467 U. S. 837, 843 (1984). When the legislative prescription is not free from ambiguity, the administrator must choose between conflicting reason- 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 399 Opinion of the Court able interpretations. Courts, in turn, must respect the judgment of the agency empowered to apply the law "to varying fact patterns," Bayside, 429 U. S., at 304, even if the issue "with nearly equal reason [might] be resolved one way rather than another," id., at 302 (citing Farmers Reservoir, 337 U. S., at 770 (Frankfurter, J., concurring)). We note, fur- thermore, that administrators and reviewing courts must take care to assure that exemptions from NLRA coverage are not so expansively interpreted as to deny protection to workers the Act was designed to reach. See 48 F. 3d, at 1370 (citing NLRB v. Cal-Maine Farms, Inc., 998 F. 2d 1336, 1339 (CA5 1993)); 6 cf. Arnold v. Ben Kanowsky, Inc., 361 U. S. 388, 392 (1960) (exemptions from the FLSA "are to be narrowly construed against the employers seeking to assert them"); Mitchell v. Kentucky Finance Co., 359 U. S. 290, 295 (1959) ("It is well settled that exemptions from the Fair Labor Standards Act are to be narrowly construed."). III Primary farming includes the raising of poultry. See Bayside, 429 U. S., at 300­301. All agree that the independ- 6 The legislative history suggests that Congress, in linking the definition of "agricultural laborer" in NLRA § 2(3) to § 3(f) of the FLSA, intended to cabin the exemption. The version of the appropriations rider first adopted by the House incorporated the definition of "agricultural laborer" contained in the Social Security Act Amendments of 1939, 53 Stat. 1377. See 92 Cong. Rec. 6689­6692 (1946). Some lawmakers, however, objected that the amendment contained a "very broad definitio[n] of agricultural laborer excluding a great number of processing employees" from NLRA coverage. See id., at 9514 (statement of Sen. Ball). After some debate- and upon consultation with a Board member and Board counsel-the Con- ference Committee agreed to substitute the "much narrower definition" supplied by § 3(f) of the FLSA. See ibid. The dissent's reading of § 3(f), while a plausible construction of a text we, the Board, and the Secretary of Labor find less than crystalline, see infra, at 409, is inharmonious with a congressional will to create a slim exemption from the encompassing protection the NLRA and the FLSA afford employees in our Nation's commercial enterprises. 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT 400 HOLLY FARMS CORP. v. NLRB Opinion of the Court ent growers, who raise Holly Farms' broiler chickens on their own farms, are engaged in primary agriculture. But we confront no contention that Holly Farms' live-haul employees are themselves engaged in raising poultry.7 Thus, the only question we resolve is whether the chicken catchers, forklift operators, and truckdrivers are engaged in secondary agri- culture-that is, practices "performed by a farmer or on a farm as an incident to or in conjunction with such farming operations." 29 U. S. C. § 203(f). We take up, initially, the "performed by a farmer" strand of FLSA § 3(f). We do not labor over the point, for our deci- sion in Bayside securely leads us to the conclusion that the live-haul activities are not performed "by a farmer." In Bayside, we considered the application of § 3(f)'s "by a farmer" specification to integrated agricultural companies that contract out farming work. We upheld the Board's re- jection of the contention that "all of the activity on a contract farm should be regarded as agricultural activity of an inte- grated farmer" such as Holly Farms. 429 U. S., at 302. When an integrated poultry producer "contracts with inde- pendent growers for the care and feeding of [its] chicks, [its] status as a farmer engaged in raising poultry ends with re- spect to those chicks." Id., at 302, n. 9 (citing Imco Poultry, 202 N. L. R. B., at 260). Accordingly, when the live-haul employees arrive on the independent farms to collect broilers for carriage to slaughter and processing, Holly Farms does not resume its status as "farmer" with respect to those birds, the status Holly Farms had weeks before, when the birds 7 Holly Farms, it is true, ultimately argues that the catching and loading of broilers slated for slaughter constitute primary agriculture because those activities are best viewed as the "harvesting" of chickens. See Brief for Petitioners 29­30. But Holly Farms failed to advance this argu- ment before the Court of Appeals, and it did not home in on this contention in its petition for certiorari. Because we "generally do not address argu- ments that were not the basis for the decision below," Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 379, n. 5 (1996), we decline to entertain Holly Farms' primary farming argument. 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 401 Opinion of the Court were hatched in its hatcheries. This conclusion, we note, entirely disposes of the contention that the truckdrivers are employed in secondary agriculture, for Holly Farms acknowl- edges that these crew members do not work "on a farm." Tr. of Oral Arg. 5. We turn, now, to the nub of the case for the chicken catch- ers and forklift operators: the "on a farm" strand of FLSA § 3(f). A Holly Farms argues that under the plain language of the statute, the catching and loading of broilers qualifies as work performed "on a farm as an incident to" the raising of poul- try. The corporation emphasizes that § 3(f) of the FLSA enumerates "preparation for market" and "delivery to stor- age or to market" among activities that count as "agricul- ture." The live-haul employees' work, Holly Farms con- cludes, thus falls within the domain of the FLSA exemption and, accordingly, enjoys no NLRA protection. We find Holly Farms' position to be a plausible, but not an inevitable, construction of § 3(f). Hence, we turn to the Board's position, examining only its reasonableness as an interpretation of the governing legislation. B While agreeing that the chicken catchers and forklift oper- ators work "on a farm," the Board contends that their catch and cage work is not incidental to farming operations. Rather, the work is tied to Holly Farms' slaughtering and processing operations, activities that do not constitute "farm- ing" under the statute. We conclude, as we next explain, that the Board's position "is based on a reasonable interpre- tation of the statute, is consistent with the Board's prior holdings, and is supported by the Secretary of Labor's con- struction of § 3(f)." Bayside, 429 U. S., at 303 (footnotes omitted). 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT 402 HOLLY FARMS CORP. v. NLRB Opinion of the Court 1 The Board underscores the statutory words "such farming operations." It does not suffice that the alleged secondary agriculture consists of "preparation for market," or "delivery to storage or to market," the Board maintains; to qualify for the statutory exemption, the Board urges, the work must be incidental to, or conjoined with, primary farming operations.8 As just explained, see supra, at 400­401, at the growing stage in the short life of a broiler, Holly Farms is not in- volved in primary farming, but the contract growers are. The essential question, then, is whether the live-haul em- ployees' activities are inevitably "incident to or in conjunc- tion with" the farming operations of the independent grow- ers.9 The Board answers this question in the negative. 8 As we noted in Farmers Reservoir & Irrigation Co. v. McComb, 337 U. S. 755 (1949), Congress specifically added the words "or on a farm" to FLSA § 3(f) to address some Senators' objections that the exemption otherwise would not cover "the threshing of wheat or other functions nec- essary to the farmer if those functions were not performed by the farmer and his hands, but by separate companies organized for and devoted solely to that particular job." See id., at 767 (citing 81 Cong. Rec. 7653 (1937)). Nothing in the Board's decision detracts from the application of § 3(f), based on the "on a farm" language, to employees of "separate companies organized for and devoted solely to" auxiliary work in aid of a farming enterprise. Hence, the words "on a farm" do the work intended, and are not redundant. But see post, at 412­413. Holly Farms presses the argument that its live-haul employees are analogous to the wheat threshers who figured in FLSA § 3(f)'s legislative history. The Board reasonably responds, however, that any worker- whether a wheat thresher, a feed-haul driver, or a chicken catcher-must perform his or her work "as an incident to or in conjunction with such farming operations" in order to fall under the agricultural exemption. If the chicken catching crews were employed by the independent growers, rather than by Holly Farms' processing operation, those crews would more closely resemble the wheat threshers contemplated by the framers of § 3(f). 9 To this question, the dissent asserts "there can be only one answer." Post, at 415. In the dissent's view, activities "directly related to the farm- ing operations that occurred on that very farm"-in this case, removing chickens from the independent growers' farms to make room for more- 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 403 Opinion of the Court See Imco Poultry, 202 N. L. R. B., at 261 (Because chicken catching crews "have no business relationship with the inde- pendent farmers, we conclude that the employees' activities were not incidental to the independent farmers' poultry rais- ing operations."). We find the Board's answer reasonable. Once the broilers have grown on the farm for seven weeks, the growers' con- tractual obligation to raise the birds ends, and the work of the live-haul crew begins. The record reflects minimal overlap between the work of the live-haul crew and the inde- pendent growers' raising activities. The growers do not as- sist the live-haul crews in catching or loading the chickens; their only responsibilities are to move certain equipment from the chicken coops prior to the crews' arrival, and to be present when the crews are on the farms. App. to Brief for Federal Respondent 3a. Nor do the live-haul employees play any role in the growers' performance of their contrac- tual undertakings. The record, furthermore, supports the Board's conclusion that the live-haul crews' activities were conjoined with Holly Farms' processing operations, rather than with farming.10 inescapably satisfy the statute. Post, at 414­415. FLSA § 3(f), all agree, does not apply absent a connection between the activity in question and the primary farming operations conducted "on a farm." But the statu- tory language-"incident to or in conjunction with"-does not place be- yond rational debate the nature or extent of the required connection. See 29 CFR § 780.144 (1995) (recognition by the Secretary of Labor that the "line between practices that are and those that are not performed `as an incident to or in conjunction with' such farming operations is not suscepti- ble of precise definition"). 10 Holly Farms argues, and the dissent agrees, post, at 414, that the Board's conclusion rests on the assumption that a given activity can be incidental to one thing only-in this case, either processing or farming, but not both. At oral argument, counsel for the Board stated that Holly Farms had not accurately conveyed the Board's position. Tr. of Oral Arg. 33, 38. The Board apparently recognizes, as do we, that an activity can be incidental to more than one thing. To gain the agricultural exemp- tion, however, farming must be an enterprise to which the activity at issue is incidental. The relevant question under the statute, therefore, 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT 404 HOLLY FARMS CORP. v. NLRB Opinion of the Court The chicken catchers, forklift operators, and truckdrivers work as a unit. They all "work out of the processing plant" in Wilkesboro, App. 22a, located three miles from the hatch- eries, App. to Pet. for Cert. A­381, n. 119. Crew members begin and end each shift by punching a timeclock at the proc- essing plant, id., at A­831 to A­832, and are functionally integrated with other processing-plant employees, App. 22a. See also App. to Pet. for Cert. A­396 (correlation between Holly Farms' slaughter rate and work available for live-haul crews); App. 29a (live production manager for Holly Farms' Wilkesboro facility described catching and delivery of grown broilers as the first step in the producer's processing opera- tions). The Board's determination, in sum, has the requisite "warrant in the record." Bayside, 429 U. S., at 304, n. 14 (citing NLRB v. Hearst Publications, Inc., 322 U. S. 111, 131 (1944)). We think it sensible, too, that the Board homed in on the status of the live-haul crews' employer. The employer's sta- tus respecting the particular activity at issue accounts for the Board's determination that Holly Farms' "egg haulers" (who transport eggs from the laying houses to the hatcher- ies), and "pullet catchers" (who collect the breeding-destined birds on the farms of independent growers) rank as "agricul- tural laborer[s]." As the record shows, the pullet catchers and egg haulers work in Holly Farms' hatchery operations, while the live-haul employees-who deal only with broil- ers-work out of the processing plant. "There is no inter- change between these classifications. Broiler haulers do not haul pullets and pullet haulers do not haul broilers." App. 20a­21a. Accordingly, the Board reasonably aligned the pullet catchers and egg haulers with Holly Farms' poultry- raising operation, and the live-haul employees with the cor- poration's slaughtering and processing activities. is whether the work of the live-haul crews qualifies as incidental to farming. 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 405 Opinion of the Court 2 The Board's decision regarding Holly Farms' live-haul crews adheres to longstanding NLRB precedent. For more than 23 years, the NLRB has maintained that vertically inte- grated poultry producers' employees who "handl[e] and transpor[t] chicks on the farms of independent growers only after [the poultry producers'] farming operations have ended . . . cannot be performing practices incident to, or in conjunc- tion with, [their employer's] farming operations." Imco Poultry, 202 N. L. R. B., at 260. Rather, such employees, the Board has repeatedly ruled, perform work "incident to, or in conjunction with, a separate and distinct business activ- ity of [their employer], i. e., shipping and marketing." Id., at 261. See also Draper Valley Farms, Inc., 307 N. L. R. B., at 1440 ("We think it follows plainly from Imco that the Em- ployer's chicken catchers are not, when working on the farms of independent growers who have concluded their `raising' activities, exempt as agricultural laborers."); Seaboard Farms of Kentucky, Inc., 311 N. L. R. B. No. 159 (1993) (same).11 3 In construing the agricultural laborer exemption, the Board endeavors to "follow, whenever possible, the interpre- tations of Section 3(f) adopted by the Department of Labor, the agency which is charged with the responsibility for and has the experience of administering the Fair Labor Stand- 11 Our decision in Maneja v. Waialua Agricultural Co., 349 U. S. 254 (1955), does not cast doubt on the Board's view of operations like Holly Farms. In that case, which did not involve a Board ruling, we held that railroad workers employed by an integrated sugar cane producer were exempt, as "agricultural laborer[s]," from FLSA overtime provisions. The employer in Maneja, unlike Holly Farms, grew and cultivated its sugar cane autonomously, without the aid of independent growers; hence, we concluded that the activities of the railroad workers, who hauled the freshly cut cane from the sugar fields to the processing plant, were inci- dental to the employer's primary farming operations. Id., at 262­263. 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT 406 HOLLY FARMS CORP. v. NLRB Opinion of the Court ards Act." Cornell University, 254 N. L. R. B. 110 (1981); see also Mario Saikon, Inc., 278 N. L. R. B. 1289, 1290 (1986); Wegman's Food Market, Inc., 236 N. L. R. B. 1062 (1978). The Board has not departed from that endeavor here.12 The Department of Labor's regulations do not address the pre- cise situation of the live-haul workers before us, nor are the regulations free from ambiguity. We agree with the Board, however, that they are consistent with "employee" charac- terization of the crews that catch grown chickens for car- riage to Holly Farms' processing plant. On contract arrangements for raising poultry, the Depart- ment of Labor has issued an interpretative regulation, which we noted in Bayside, 429 U. S., at 303­304, n. 13, as follows: "Feed dealers and processors sometimes enter into contractual arrangements with farmers under which the latter agree to raise to marketable size baby chicks sup- plied by the former who also undertake to furnish all the required feed and possibly additional items. Typi- cally, the feed dealer or processor retains title to the chickens until they are sold. Under such an arrange- ment, the activities of the farmers and their employees in raising the poultry are clearly within section 3(f). The activities of the feed dealer or processor, on the other hand, are not `raising of poultry,' and employees engaged in them cannot be considered agricultural em- ployees on that ground. Employees of the feed dealer or processor who perform work on a farm as an incident to or in conjunction with the raising of poultry on the farm are employed in `secondary' agriculture (see 12 Coleman v. Sanderson Farms, Inc., 629 F. 2d 1077 (CA5 1980), which determined that chicken catching crews were employed in "agriculture" under § 3(f), involved a dispute over applicability of the FLSA's overtime provisions, not over union representation. Thus, the court in that case was not required to respect the position of the Board. See id., at 1081, n. 4. We note, however, that the Coleman court did not advert to the Secretary of Labor's interpretations of § 3(f). 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 407 Opinion of the Court §§ 780.137 et seq. [explaining that work must be per- formed in connection with the farmer-employer's own farming to qualify as `secondary' agriculture by a farmer] and Johnston v. Cotton Producers Assn., 244 F. 2d 553)." 29 CFR § 780.126 (1995). This regulation suggests that live-haul crews surely are not engaged in a primary farming operation. The crews could rank as workers engaged in "secondary" agriculture if they "perform[ed] work on a farm as an incident to or in conjunc- tion with the raising of poultry on the farm." Ibid. As we developed earlier, however, see supra, at 402­405, in the Board's judgment, the crews do not fit that bill. The live- haul crew members perform their work, as the Board sees it, not "as an incident to" poultry raising by independent growers, but "incident to" and "in conjunction with" the slaughter and processing of chickens at Holly Farms' Wilkes- boro plant. In the Board's words, the crews are tied to "a separate and distinct business activity," the business of processing poultry for retail sale, see Imco Poultry, 202 N. L. R. B., at 261, not to the anterior work of agriculture.13 Other Department of Labor regulations are in harmony with the Board's conclusion that the live-haul crews do not engage in secondary farming because their work, though "on 13 The Department of Labor's interpretative regulation, 29 CFR § 780.126 (1995), includes a citation to Johnston v. Cotton Producers Assn., 244 F. 2d, 553, 554 (CA5 1957). That case is readily distinguishable from the case before us. In Johnston, the Court of Appeals held that an em- ployee of a rural farm supply store was exempt from FLSA minimum wage and overtime requirements as an agricultural laborer. The supply store sold baby chicks to farmers, while "retain[ing] title to the chicks as security for the purchase price and for advances for feed, supplies, or equipment." Ibid. While the supply store employee caught, cooped, and loaded chickens onto trucks for delivery to processors-entities independ- ent of the supply store-that employee also "supervise[d] the growing of chicks by [independent] growers on their farms." Ibid. By contrast, in this case there is no contention that any of the live-haul employees simi- larly assist the independent growers in their chick-raising activities. 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT 408 HOLLY FARMS CORP. v. NLRB Opinion of the Court a farm," is not performed "as an incident to or in conjunction with" the independent growers' poultry-raising operations. Thus, 29 CFR § 780.129 (1995) reiterates that the work "must be performed `as an incident to or in conjunction with' the farming operations," and § 780.143 adds: "The fact that a practice performed on a farm is not performed by or for the farmer is a strong indication that it is not performed in connection with the farming operations there conducted." Ibid. The same regulation, § 780.143, further states that, in deter- mining whether a practice is performed "for" a farmer, it is "highly significant" whether the practice involves property to which the farmer has title or for which the farmer other- wise has responsibility. Ibid. Holly Farms retains title to the chicks and, once the live-haul crew undertakes its catch and remove operation, the independent grower "divest[s] himself of further responsibility with respect to the prod- uct." Ibid.14 The Department of Labor candidly observed that "[t]he line between practices that are and those that are not performed `as an incident to or in conjunction with' such farming operations is not susceptible of precise definition." § 780.144. This acknowledgment accords with our recogni- tion that the meaning of FLSA § 3(f) is not so "plain" as to bear only one permissible construction in the context at hand. IV In sum, we find persuasive the Board's conclusion that the collection of broilers for slaughter was an activity serving 14 Petitioners point to 29 CFR § 780.151(k) (1995), which defines the FLSA § 3(f) words "preparation for market" to include "[c]ulling, grading, cooping, and loading" of poultry. See Brief for Petitioners 23. As an- other regulation emphasizes, however, " `preparation for market,' like other practices, must be performed `by a farmer or on a farm as an inci- dent to or in conjunction with such farming operations' in order to be within [FLSA] section 3(f)." 29 CFR § 780.150 (1995). 517US2$46P 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 409 Opinion of O'Connor, J. Holly Farms' processing operations, and not Holly Farms' own or the independent growers' farming operations. Again, we stress that "the reviewing court's function is lim- ited." Bayside, 429 U. S., at 304, n. 14 (citing Hearst Publi- cations, 322 U. S., at 131). For the Board to prevail, it need not show that its construction is the best way to read the statute; rather, courts must respect the Board's judgment so long as its reading is a reasonable one. See Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 891 (1984) ("we will uphold any inter- pretation [of the term `employee' in NLRA § 2(3)] that is rea- sonably defensible"). "[R]egardless of how we might have resolved the question as an initial matter," Bayside, 429 U. S., at 304, the Board's decision here reflects a reasonable interpretation of the law and, therefore, merits our approba- tion. The judgment of the Court of Appeals is accordingly Affirmed. Justice O'Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, concurring in the judgment in part and dissenting in part. Today the Court concludes that three categories of work- ers fall outside the definition of "agricultural laborer" sup- plied by § 3(f) the Fair Labor Standards Act of 1938 (FLSA) and § 2(3) of the National Labor Relations Act (NLRA): (1) Holly Farms' chicken catchers, who labor on a farm manually rounding up, catching, and caging live chickens, (2) forklift operators, who then load the caged chickens onto the bed of a flatbed truck, and (3) live-haul drivers, who drive the loaded trucks to Holly Farms' processing plants, where the chickens are slaughtered and prepared for market. I concur in the Court's judgment with respect to the live-haul drivers, since their work is neither performed "by a farmer" nor "on a farm." But the Court's conclusion that Holly Farms' chicken catchers and forklift operators do not perform ag- ricultural work runs contrary to common sense and finds no 517US2$46J 02-07-99 17:00:59 PAGES OPINPGT 410 HOLLY FARMS CORP. v. NLRB Opinion of O'Connor, J. support in the text of the relevant statute. Because the definition supplied by Congress makes clear that the chicken catchers and forklift operators are agricultural workers exempt from the reach of the NLRA, I respectfully dissent. The Court devotes the bulk of its opinion to an analysis of the reasonableness of the National Labor Relations Board's (Board) interpretation of the statute, but gives remarkably short shrift to the statute itself. The Court dismisses Holly Farms' claim that the plain language of the statute covers the chicken catchers and forklift operators with the con- clusory remark that Holly Farms' reading of the statute is "a plausible, but not an inevitable, construction of § 3(f)." Ante, at 401. In my view, however, the language of the statute is unambiguous. As we said in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984): "First, always, is the question whether Congress has directly spoken to the precise question at issue. 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 in- tent of Congress." Id., at 842­843. None of our precedents sanction blind adherence to the Board's position when it is directly contrary to the plain language of the relevant stat- ute. See, e. g., NLRB v. Brown, 380 U. S. 278, 291 (1965) ("Reviewing courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute"); American Ship Building Co. v. NLRB, 380 U. S. 300, 318 (1965) ("The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia . . ."). Section 3(f) of the FLSA defines agriculture as "farming in all its branches," including "the raising of . . . poultry," as well as "any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming opera- tions." 29 U. S. C. § 203(f) (emphasis added). The coverage 517US2$46J 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 411 Opinion of O'Connor, J. intended by Congress under both the FLSA and the NLRA is best determined by consulting the language of the statute at issue. Because the relevant portions of § 3(f) are per- fectly plain and "directly [speak] to the precise question at issue," Chevron, supra, at 842, I would hold that the chicken catchers and forklift operators are agricultural laborers and that the Board's contrary conclusion does not deserve deference. The Court's determination rests largely upon a misreading of the statute in two respects. First, the Court tethers the "or on a farm" clause of § 3(f) to the employment relationship (or lack thereof) between the chicken catchers and forklift operators and the independent farmer who is charged with raising the chickens. And second, the Court decides that the secondary farming activities performed by the chicken catchers and forklift operators must not only be "incident" to the independent farmer's primary farming activities, but must be "mainly" or "most tightly" tied thereto. Neither conclusion finds support in the language of § 3(f). The Court's first error stems from its adoption of the Board's focus on the lack of a direct employment relation- ship between the live-haul workers and the independent growers. But the "or on a farm" clause nowhere mentions the nature of the employment relationship. Instead, it is plainly concerned only with the nature of the work per- formed by the worker. The Board's interpretation must be rejected, as it would read the "or on a farm" clause out of the statute entirely. The Court relies on the legislative history underlying the "or on a farm" clause, which we described in Farmers Reser- voir & Irrigation Co. v. McComb, 337 U. S. 755, 763 (1949). That history reveals that the clause was intended to include within the statutory definition work performed on a farm that was "necessary to" the farming operations but not performed by the farmer himself. Id., at 767. One exam- ple figures prominently in the legislative history: a wheat 517US2$46J 02-07-99 17:00:59 PAGES OPINPGT 412 HOLLY FARMS CORP. v. NLRB Opinion of O'Connor, J. thresher who travels from farm to farm performing wheat threshing chores for small farmers on a contract basis. The Court reasons that Holly Farms' employees are unlike the fictional wheat thresher, however, in that they are employed by Holly Farms, rather than by the independent growers themselves. See ante, at 402, n. 8 ("If the chicken catching crews were employed by the independent growers, rather than by Holly Farms' processing operation, those crews would more closely resemble the wheat threshers contem- plated by the framers of § 3(f)"). The Court and the Board emphasize formal contractual arrangements to the virtual exclusion of practical realities. The fact that Holly Farms supplies the services of the chicken catchers and forklift operators seems entirely beside the point; the work performed by these employees is pre- cisely the same whether they are hired by Holly Farms or by the independent growers. And the notion that Congress intended the status of the chicken catchers and forklift oper- ators to turn on such a readily manipulable criterion strains credibility. If the live-haul crew's status depends only upon who "hires" them to perform the work, Holly Farms can sim- ply charge the independent growers with raising and catch- ing, caging, and cooping the chickens, and require the inde- pendent growers to hire Holly Farms' own live-haul workers to perform those tasks. The Court's quotation from Imco Poultry, Div. of Int'l Multifoods Corp., 202 N. L. R. B. 259 (1973), reveals pre- cisely where the Board and the Court have gone astray: The Board takes the position that live-haul workers " `cannot be performing practices incident to, or in conjunction with, [their employer's] farming operations.' " Ante, at 405 (quot- ing Imco Poultry, supra, at 260). But the statute does not require that work be performed "incident to or in conjunc- tion with" one's employer's farming operations, but only inci- dent to or in conjunction with "such" farming operations- the antecedent for which term is plainly the first clause of 517US2$46J 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 413 Opinion of O'Connor, J. § 3(f), to wit, "farming in all its branches," including "the raising of . . . poultry." If the sine qua non of status as an agricultural laborer is employment by the farmer or the independent grower, the "or on a farm" clause is redundant, because chicken catching crews that are agents or employees of the farmers themselves fall within the "by a farmer" clause. Ordinarily, "terms connected by a disjunctive [are] given separate meanings, unless the context dictates other- wise." Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979). The "or on a farm" clause has independent significance only if the work encompassed by that clause is performed by someone other than a farmer or the farmer's own agents or employees. Chevron deference is not owed to a Board con- struction of the statute that effectively redacts one of the statute's operative clauses. The Court also cites with approval a Department of Labor (DOL) interpretive regulation that addresses contractual ar- rangements for raising poultry such as those between Holly Farms and the independent growers. The DOL regulation declares that "[e]mployees of [a] feed dealer or processor who perform work on a farm as an incident to or in conjunction with the raising of poultry on the farm are employed in `sec- ondary' agriculture." 29 CFR § 780.126 (1995). The Court thus accepts as reasonable a DOL regulation that plainly suggests that even workers employed by a poultry processor such as Holly Farms can be engaged in secondary agriculture and also accepts as reasonable a Board interpretation of § 3(f) that, in essence, dictates that employees of a processor cannot be employed in secondary agriculture. See ante, at 404 ("We think it sensible . . . that the Board homed in on the status of the live-haul crews' employer") (emphasis in original). The Court cannot have it both ways, and it need not, since the "or on a farm" clause is plainly indifferent to the nature of the employment relationship. The Court's second misstep likewise derives from its def- erence to a Board construction that lacks foundation in the 517US2$46J 02-07-99 17:00:59 PAGES OPINPGT 414 HOLLY FARMS CORP. v. NLRB Opinion of O'Connor, J. statute. Section 3(f) exempts work performed "as an inci- dent to or in conjunction with" primary farming operations. The statutory language manifestly does not disqualify the work from agricultural status if it also "serve[s]," ante, at 408, or is "tied to," ante, at 407, some other enterprise. Even accepting the Court's conclusion that the work of the chicken catchers and forklift operators is "incident to" Holly Farms' processing operations, those workers fall within the § 3(f) definition so long as their work is also "incident to or in conjunction with" the farming operations performed by the independent growers. As Holly Farms points out, the Board's contrary position hinges on the premise that a given activity can only be inci- dent to one thing-either processing or farming, but not both. But the Board's position cannot be squared with the statute itself, which places no conditions upon the statutory prerequisite that work be "incident to or in conjunction with" covered farming operations. Indeed, the wheat thresher of the legislative history was clearly performing work "incident to" the business operations of the wheat threshing enterprise as well as "incident to" the farmer's farming operations. The statutory requirement is simple, and the imposition of a more stringent prerequisite must be rejected as contrary to the statute itself. When the chicken catchers and forklift operators arrive at the farm of an independent grower to catch, cage, and load the live chickens in preparation for their delivery to market, they are certainly doing work that is directly related to the farming operations that occurred on that very farm during the preceding weeks: the raising of poultry. As Holly Farms points out, unless the chickens are caught, caged, and re- moved from the farm, the independent grower's farming operations will have been for naught. The independent grower must see to it that the chickens grow to the desig- nated age and are caught, removed, and replaced with new chicks for the next growing cycle. See Brief for Petitioners 517US2$46J 02-07-99 17:00:59 PAGES OPINPGT Cite as: 517 U. S. 392 (1996) 415 Opinion of O'Connor, J. 23. And the fact that § 3(f) lists "preparation for market" as one of the activities that customarily is "incident to or in conjunction with" covered farming operations buttresses petitioners' argument. The Court's response relies on the facts that the independ- ent grower's contractual duties have ended, that the workers punch a timeclock in Holly Farms' processing plant rather than in Farmer Brown's barn, and that Holly Farms rather than the independent grower signs their paychecks at the end of the day. But these facts are irrelevant to the statu- tory definition. Section 3(f) asks only whether the chicken catchers and forklift operators perform work "on a farm" (which all parties concede they do) and whether that work is "incident to or in conjunction with such farming opera- tions"-that is, whether the activities of the chicken catching crews are "incident to" the covered farming operations that take place on the farms of the independent growers, the rais- ing of poultry for slaughter. To that question, there can be only one answer. Because the Court today defers to an NLRB interpreta- tion that runs directly contrary to the statutory language, I respectfully dissent from the Court's conclusion with respect to the chicken catchers and forklift operators. 517US2$47Z 02-07-99 17:26:51 PAGES OPINPGT 416 OCTOBER TERM, 1995 Syllabus CARLISLE v. UNITED STATES certiorari to the united states court of appeals for the sixth circuit No. 94­9247. Argued January 16, 1996-Decided April 29, 1996 At his trial on a federal marijuana charge, petitioner filed his motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29(c) after the jury returned a guilty verdict and was discharged. The Dis- trict Court granted the motion even though it was filed one day outside the time limit prescribed by Rule 29(c), which provides, inter alia, that "[i]f the jury returns a verdict of guilty . . . , a motion for judgment of acquittal may be made or renewed within 7 days after the jury is dis- charged or within such further time as the court may fix during the 7-day period." In reversing and remanding for reinstatement of the verdict and for sentencing, the Sixth Circuit held that under Rule 29 a district court has no jurisdiction to grant an untimely motion for judg- ment of acquittal, or to enter such a judgment sua sponte after submis- sion of the case to the jury. Held: The District Court had no authority to grant petitioner's motion for judgment of acquittal filed one day outside the Rule 29(c) time limit. Pp. 419­433. (a) The Rules do not permit the granting of an untimely postverdict motion for judgment of acquittal. Rule 29(c)'s text, when read with Rule 45(b)'s statement that "the court may not extend the time for tak- ing any action under Rul[e] 29 . . . except to the extent and under the conditions stated in [the Rule]," is plain and unambiguous: If, as in this case, a guilty verdict is returned, a motion for judgment of acquittal must be filed either within seven days of the jury's discharge or within an extended period fixed by the court during that 7-day period. Fur- thermore, in light of Rule 29(c)'s clarity, petitioner cannot rely either on Rule 2, which requires that ambiguous Rules "be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay," or on Rule 57, which allows district courts discretion to regulate practice when there is no controlling law. Pp. 419­425. (b) This Court rejects petitioner's invocation of courts' "inherent supervisory power" as alternative authority for the District Court's action. Whatever the scope of federal courts' inherent power to formulate procedural rules not specifically required by the Constitution or the Congress, it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure. 517US2$47Z 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 417 Opinion of the Court See, e. g., Bank of Nova Scotia v. United States, 487 U. S. 250, 254­255. Whether the District Court's action is described as the granting of an untimely motion, or the sua sponte entry of a judgment of acquittal, it contradicted Rule 29(c)'s plain language and effectively annulled the 7-day filing limit. The cautionary principle that the Court will not lightly assume that the Rules mean to depart from established princi- ples does not apply in this case, because prior to the enactment of Rule 29, there was no long, unquestioned power of federal district courts to acquit for insufficient evidence sua sponte, after return of a guilty verdict. Pp. 425­428. (c) The Court also rejects petitioner's remaining arguments: (1) that the District Court had power to order acquittal in this case under the All Writs Act, 28 U. S. C. § 1651, through the writ of coram nobis; (2) that the failure to allow the District Court to order acquittal would violate the Fifth Amendment's Due Process Clause; and (3) that prohib- iting a district court from granting an acquittal motion filed only one day late will lead to needless appeals and habeas corpus proceedings. Pp. 428­430. (d) The Court rebuts arguments put forward by the dissent, including the proposition that permissive rules do not withdraw pre-existing in- herent powers, and the dissent's reliance on this Court's precedents to support the existence of the "inherent power" petitioner invokes. Pp. 430­433. 48 F. 3d 190, affirmed. Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, post, p. 434. Ginsburg, J., filed a concurring opinion, in which Souter and Breyer, JJ., joined, post, p. 434. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined, post, p. 436. James A. Christopherson argued the cause and filed briefs for petitioner. With him on the briefs was Joel R. Myler. Paul A. Engelmayer argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solici- tor General Dreeben, and David S. Kris. Justice Scalia delivered the opinion of the Court. This case presents the question whether a district court has authority to grant a postverdict motion for judgment of 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT 418 CARLISLE v. UNITED STATES Opinion of the Court acquittal filed one day outside the time limit prescribed by Federal Rule of Criminal Procedure 29(c). I Petitioner Charles Carlisle, along with several co- defendants, was tried by jury in the United States District Court for the Western District of Michigan for conspiracy to possess with intent to distribute marijuana, in violation of 21 U. S. C. §§ 841, 846, 84 Stat. 1260, 1265. He did not move during the trial for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a). On July 13, 1993, the jury returned a guilty verdict and was discharged. On July 23, 1993, Carlisle filed a "Motion for a Judgment of Acquittal Pursuant to Federal Rule of Criminal Procedure 29(c)," ar- guing that there was insufficient evidence to sustain his con- viction. App. 6­9. Rule 29(c) provides that "a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period." Excluding the intermediate Saturday and Sunday (as Federal Rule of Crim- inal Procedure 45(a) requires), the 7-day period in this case ended on July 22, 1993. The United States' response to Car- lisle's motion argued that it should be denied as untimely and, alternatively, that there was sufficient evidence to sus- tain the conviction. The District Court denied Carlisle's motion on August 19, 1993. Its written opinion did not ad- dress the timeliness issue, but concluded that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Carlisle knew about, and knowingly and voluntarily joined, the charged conspiracy. When Carlisle appeared for sentencing on October 14, 1993, the District Court announced that it was reversing its ruling. When it made its decision in August, the court said, it had prepared two opinions, one granting and one denying the motion, and it had now decided to substitute the former for the latter. The court subsequently entered an order that 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 419 Opinion of the Court (i) withdrew the opinion and order denying the motion to acquit and (ii) granted "Carlisle's motion for a judgment of acquittal pursuant to Rule 29(c), filed July 23, 1993." App. 45. An opinion accompanying the order concluded that there was insufficient evidence to prove that Carlisle know- ingly and voluntarily joined the conspiracy to possess and distribute marijuana. In a footnote, the opinion acknowl- edged that the motion for judgment of acquittal was filed one day late, but concluded: ". . . I can conceive of no prejudice to the United States which will result from consideration of a motion that is one day lat[e] in this case. Because I believe that refusal to hear this motion would result in grave injustice, and because [Rule 29(c)] permits the Court to extend the deadline, I will consider this motion as if it were filed in a timely manner." Id., at 37. The United States Court of Appeals for the Sixth Circuit reversed the judgment of acquittal and remanded to the Dis- trict Court for reinstatement of the jury's verdict and for sentencing. It held that under Rule 29 a district court has no jurisdiction to grant an untimely motion for judgment of acquittal, and that a district court has no jurisdiction to enter a judgment of acquittal sua sponte after the case has been submitted to the jury. 48 F. 3d 190, 192 (1995). We granted certiorari. 515 U. S. 1191 (1995). II Petitioner argues that district courts "should be given the power to go outside the strict time limits of Federal Rule of Criminal Procedure 29(c)" when (1) there is a claim that the defendant was legally innocent, (2) the motion is filed prior to sentencing, and (3) the motion was not timely filed because of attorney error. Brief for Petitioner 8. Petitioner seeks to root this argument in, among other places, the Federal Rules of Criminal Procedure. 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT 420 CARLISLE v. UNITED STATES Opinion of the Court Rule 29 is reproduced in its entirety below.1 Subdivision (c) provides, in relevant part, that "[i]f the jury returns a verdict of guilty . . . , a motion for judgment of acquittal may 1 "Rule 29. Motion for Judgment of Acquittal "(a) Motion Before Submission to Jury. Motions for directed ver- dict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right. "(b) Reservation of Decision on Motion. The court may reserve decision on a motion for judgment of acquittal, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved. "(c) Motion after Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no ver- dict is returned the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury. "(d) Same: Conditional Ruling on Grant of Motion. If a motion for judgment of acquittal after verdict of guilty under this Rule is granted, the court shall also determine whether any motion for a new trial should be granted if the judgment of acquittal is thereafter vacated or reversed, specifying the grounds for such determination. If the motion for a new trial is granted conditionally, the order thereon does not affect the finality of the judgment. If the motion for a new trial has been granted condition- ally and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. If such motion has been denied conditionally, the appellee on appeal may assert error in that denial, and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court." 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 421 Opinion of the Court be made or renewed within 7 days after the jury is dis- charged or within such further time as the court may fix during the 7-day period." Federal Rule of Criminal Proce- dure 45(b) provides that whereas certain untimely acts may be accorded validity upon a showing of excusable neglect, "the court may not extend the time for taking any action under Rul[e] 29 . . . except to the extent and under the condi- tions stated in [the Rule]." These Rules are plain and un- ambiguous. If, as in this case, a guilty verdict is returned, a motion for judgment of acquittal must be filed, either within seven days of the jury's discharge, or within an ex- tended period fixed by the court during that 7-day period. There is simply no room in the text of Rules 29 and 45(b) for the granting of an untimely postverdict motion for judgment of acquittal, regardless of whether the motion is accompanied by a claim of legal innocence, is filed before sentencing, or was filed late because of attorney error. Unable to offer any reading of Rule 29(c) that would permit an untimely motion for judgment of acquittal to be granted, Carlisle contends that Rule 29(a) gives a district court authority to enter a judgment of acquittal sua sponte at any time before sentencing. Rule 29(a), entitled "Motion Before Submission to Jury," provides in relevant part: "The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." It would be quite a surprise to find a district court's sua sponte power to grant judgment of acquittal after submis- sion of the case to the jury hidden away in a provision en- titled "Motion Before Submission to Jury." We are not in- clined to adopt an interpretation that creates such a surprise unless the intent that the text exceed its caption is clear. 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT 422 CARLISLE v. UNITED STATES Opinion of the Court Here, to the contrary, the structure of Rule 29 indicates that subdivision (a) is limited as its caption says. Petitioner's proposed reading would create an odd system in which defense counsel could move for judgment of acquit- tal for only seven days after the jury's discharge, but the court's power to enter such a judgment would linger. In United States v. Smith, 331 U. S. 469 (1947), we declined to read former Federal Rule of Criminal Procedure 33, which placed a 5-day limit on the making of a motion for new trial, as "permit[ting] the judge to order retrial without request and at any time," 331 U. S., at 473. "[I]t would be a strange rule," we said, "which deprived a judge of power to do what was asked when request was made by the person most con- cerned, and yet allowed him to act without petition," and such an arrangement "would almost certainly subject trial judges to private appeals or application by counsel or friends of one convicted," id., at 474, 475. The same is true here.2 In addition, petitioner's reading makes a farce of subdivision (b) of Rule 29, which provides that a court may reserve deci- sion on the motion for judgment of acquittal and decide it after submission to the jury. There would be no need for this procedure if, even without reserving, the court had con- tinuing power to grant judgment of acquittal on its own. In 2 The dissent forcefully argues that Smith does not compel the result we reach in this case. Post, at 452­453. That is an effective rejoinder to an argument we have not made. In response to the argument we have made-that some of the considerations supporting the holding in Smith apply here-the dissent (i) ignores the portion of Smith discussing the strangeness of a rule that would give a judge greater power to act sua sponte than on motion; and (ii) transforms Smith's desire to spare trial judges "private appeals or application by counsel or friends of the person convicted" into a concern for the "appearance of impropriety" that "ex parte approaches" would create, post, at 453, which concern in the present context (though presumably for some reason not in the Smith context) the dissent regards as "a highly inappropriate comment on the integrity of the federal judiciary," ibid., and the dissent says it was dictum in Smith anyway. 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 423 Opinion of the Court sum, even without the captions (and a fortiori with them) it is clear that subdivisions (a) and (b) of Rule 29 pertain to motions made before submission, and subdivisions (c) and (d) to motions made after discharge. The Government offers an alternative theory of a court's power to act sua sponte under Rule 29: Because Rule 29(a) refers to both a "motion of a defendant" and a court's "own motion," whereas Rule 29(c) refers only to "a motion" simpli- citer, the latter must refer to motions both of defendants and of courts, permitting both such "motions" to be made within seven days after the jury's discharge. We do not find this reading plausible. Rule 29(c) not only provides that "a mo- tion for judgment of acquittal" may be made or renewed within seven days after the jury is discharged. It goes on to provide, in its second and third sentences: "If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal." The phrase "on such motion" is notably absent from the third sentence-conveying the idea that, where a jury has not re- turned a verdict, a court can act without motion, but where a jury has returned a guilty verdict, it cannot. But if "on such motion" includes action taken by a court on its own initiative, the limiting phrase "on such motion" in the second sentence has no effect, and a court may act on its own whether or not a verdict has been returned. That is to say, the inclusion of the phrase "on such motion" in one sentence but not in the other would be inexplicable.3 3 Perhaps even more inexplicable is what precisely would be achieved by the Government's reading, which (unlike petitioner's theories) would permit the court to act sua sponte only during the 7-day period specified by the Rule (or any extension thereof ordered by the court during the 7-day period, as Rule 29(c) allows). The sole beneficiary of the Govern- ment's textual contortions is the district judge who wants to set aside a verdict, but lacks the wit to invite a motion for that during the 7-day period, or (if defendant's counsel is unavailable) to extend the 7-day period, 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT 424 CARLISLE v. UNITED STATES Opinion of the Court Petitioner contends that even if Rule 29 does not permit a court to grant an untimely motion for judgment of acquittal, Federal Rule of Criminal Procedure 2 vests the court with supervisory power to enter judgment of acquittal. Rule 2 provides: "These rules are intended to provide for the just deter- mination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." This Rule is of no aid to petitioner. It sets forth a principle of interpretation to be used in construing ambiguous rules, not a principle of law superseding clear rules that do not achieve the stated objectives. It does not, that is to say, provide that rules shall be construed to mean something other than what they plainly say-which is what petitioner's proposed construction of Rule 29(c) would require. We must acknowledge that there is precedent in this Court for using Rule 2 as a basis for deviating from time limits imposed by the Federal Rules of Criminal Procedure. In Fallen v. United States, 378 U. S. 139 (1964), we cited Rule 2 in the course of excusing the failure of an incarcerated paraplegic pro se petitioner to comply with the time limit for filing a notice of appeal under former Federal Rule of Criminal Procedure 37(a). Concluding that the petitioner "had done all that could reasonably be expected" to file a timely appeal, including mailing a notice of appeal to the clerk's office two days before the notice was due, we "de- cline[d] to read the Rules so rigidly as to bar a determination of his appeal on the merits." 378 U. S., at 144. Fallen has been made obsolete by an amendment to Rule 37(a).4 And sua sponte, in order to invite such a motion later. It is our hope and belief that no such district judge exists. 4 Rule 37(a) was amended in 1966 to provide that a district court may extend the time for filing a notice of appeal "[u]pon a showing of excusable 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 425 Opinion of the Court of course Fallen was a narrow ruling when it was announced, as is evident from Berman v. United States, 378 U. S. 530 (1964) (per curiam), a decision announced on the same day as Fallen, summarily affirming the dismissal of an appeal that had been filed one day late. Finally, petitioner cannot rely on Federal Rule of Criminal Procedure 57 as the source of the District Court's authority in this case. The version of Rule 57 in effect when criminal proceedings against petitioner commenced (and which he re- lied upon at oral argument) states, in relevant part, that, "[i]n all cases not provided for by rule, the district judges . . . may regulate their practice in any manner not inconsist- ent with these rules." The relevant portion of the current version of Rule 57 is captioned "Procedure When There Is No Controlling Law," and states: "A judge may regulate practice in any manner consistent with federal law, these rules, and local rules of the district." Fed. Rule Crim. Proc. 57(b). We need not decide which version of this Rule con- trols the present case, because neither authorizes the Dis- trict Court's action here. A rule permitting a party to sub- mit and prevail on an untimely motion for judgment of acquittal is "inconsistent" (or not "consistent") with Rule 29's 7-day filing limit; and the question of when a motion for judg- ment of acquittal may be granted does not present a case "not provided for" by Rule 29; and Rule 29 is the "controlling law" governing this question. III As alternative authority for the District Court's action, petitioner invokes courts' "inherent supervisory power." Brief for Petitioner 9. We have recognized that federal neglect." See Fed. Rule Crim. Proc. 37(a) (1966). When Rule 37(a) was abrogated and replaced by Federal Rule of Appellate Procedure 4(b), the substance of this amendment was transferred to Rule 4(b). See Fed. Rule App. Proc. 4(b) (1968). 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT 426 CARLISLE v. UNITED STATES Opinion of the Court courts "may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress." United States v. Hasting, 461 U. S. 499, 505 (1983). What- ever the scope of this "inherent power," however, it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure. As we rec- ognized in Bank of Nova Scotia v. United States, 487 U. S. 250, 254­255 (1988), holding that federal courts may not in- voke supervisory power to circumvent Rule 52(a): "[F]ederal courts have no more discretion to disregard the Rule's man- date than they do to disregard constitutional or statutory provisions." Whether the action of the District Court here is described as the granting of an untimely motion, or the sua sponte entry of a judgment of acquittal, it contradicted the plain language of Rule 29(c), and effectively annulled the 7-day filing limit. In Chambers v. NASCO, Inc., 501 U. S. 32, 47 (1991), we said that we would not " `lightly assume that Congress has intended to depart from established principles' such as the scope of a court's inherent power," id., at 47 (quoting Wein- berger v. Romero-Barcelo, 456 U. S. 305, 313 (1982)). Simi- larly, in Link v. Wabash R. Co., 370 U. S. 626, 629­632 (1962), we said that since a district court's authority to dismiss sua sponte for lack of prosecution was a "sanction of wide usage," we would not assume, in the absence of a clear expression, that Federal Rule of Civil Procedure 41(b), which allowed a party to move for dismissal for lack of prosecution, abrogated this "long . . . unquestioned" power. That cautionary princi- ple does not apply in the present case, not only because of the clarity of the text, but also because we are unaware of any "long unquestioned" power of federal district courts to acquit for insufficient evidence sua sponte, after return of a guilty verdict. Indeed, we are aware of only two cases prior to the enactment of the Federal Rules of Criminal Procedure that could be read as asserting in dictum the existence of 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 427 Opinion of the Court such a power. United States v. McCracken, 26 F. Cas. 1069, 1069 (No. 15,664) (ED Va. 1878); United States v. Hayden, 26 F. Cas. 236, 238 (No. 15,333) (NDNY 1877).5 5 The dissent's extended discussion of pre-Rule federal cases produces a lot of smoke, and no fire. Ansley v. United States, 135 F. 2d 207, 208 (CA5 1943), described by the dissent as "establishing a district court's inherent power to review sua sponte a jury verdict for sufficiency of the evidence," post, at 446, establishes no such thing. There, after noting the appellants' failure to renew their motions for directed verdict at the close of evidence, the Fifth Circuit said: "[T]he question of the sufficiency of the evidence was not properly saved for review by this court. It is true that the question may and should be raised by the court of its own motion, if necessary to prevent a miscarriage of justice, but this is not such a case. We have examined the record, and have found it to contain ample evidence to support the judgment." 135 F. 2d, at 208. It is obvious that the statement "the question may and should be raised by the court of its own motion" refers to the power of an appellate court to review sufficiency of the evidence where the issue has not been pre- served for appeal. The cases cited by the dissent deal with the power of a district court to enter a judgment of acquittal before the return of a verdict (i. e., to direct a verdict of acquittal), see Cady v. United States, 293 F. 829 (CADC 1923); Nosowitz v. United States, 282 F. 575, 578 (CA2 1922); United States v. Fullerton, 25 F. Cas. 1225 (No. 15,176) (SDNY 1870); the power of a district court to set aside a verdict and order a new trial, see Wiborg v. United States, 163 U. S. 632, 658­659 (1896); United States v. Harding, 26 F. Cas. 131, 136 (No. 15,301) (ED Pa. 1846); cf. Charles v. State, 4 Port. 107, 109­110 (Ala. 1836); the power of a district court to enter judgment of acquittal where the defendant has made a preverdict or postverdict motion to acquit, see Ex parte United States, 101 F. 2d 870, 878 (CA7 1939), aff'd by an equally divided Court, United States v. Stone, 308 U. S. 519 (1939); United States v. Standard Oil Co., 23 F. Supp. 937, 938­939 (WD Wis. 1938); cf. State v. Meen, 171 Wis. 36, 38­39 (1920); and even the power of an appellate court to reverse a district court's denial of a motion for directed verdict, see Nosowitz, supra, at 578; Cherry v. United States, 78 F. 2d 334 (CA7 1935); Reiner v. United States, 92 F. 2d 823, 824­825 (CA9 1937); France v. United States, 164 U. S. 676, 680 (1897); Romano v. United States, 9 F. 2d 522, 524 (CA2 1925). Not a single pre-Rule case cited by the dissent purports to exercise the power at issue here: a district court's power to enter judgment of acquittal for insufficient evidence, without motion, and after the return of a guilty 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT 428 CARLISLE v. UNITED STATES Opinion of the Court The case law of this Court that petitioner relies upon does not establish any "inherent power" to act in contravention of applicable Rules. In Gaca v. United States, 411 U. S. 618 (1973) (per curiam), which reinstated an appeal that had been dismissed for want of timely prosecution, there was no suggestion that reinstatement was contrary to any statute or rule of procedure. And in United States v. Nobles, 422 U. S. 225 (1975), which approved exercise of a District Court's inherent authority to order the disclosure of certain witness statements, we felt it necessary to make sure that such exercise did not conflict with Federal Rule of Criminal Procedure 16. Petitioner's best case is Thompson v. INS, 375 U. S. 384 (1964), which, contrary to former Federal Rule of Civil Procedure 73(a), gave effect to a notice of appeal filed more than 60 days from the entry of judgment. Thompson, however, is not pertinent here, since it expressly relied upon the " `unique circumstances' " that the cause of the failure to meet the Rule's deadline was an erroneous ruling or assur- ance by the District Court itself. 375 U. S., at 387 (quoting Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215, 217 (1962) (per curiam)). IV Petitioner's three remaining arguments need not detain us long. First, he argues that the District Court had power to enter a judgment of acquittal in this case under the All Writs Act, 28 U. S. C. § 1651, through the writ of coram nobis. Apart from the fact that the District Court was not asked to verdict. The dissent apparently thinks it an adequate explanation for this lack of support that, prior to our decision in United States v. Smith, 331 U. S. 469, 474 (1947) (suggesting that sua sponte grant of a new trial may raise double jeopardy concerns), district courts could order new trials where there was insufficient evidence to sustain the jury verdict. Post, at 442­443. But if these district courts truly had latent inherent power to enter a judgment of acquittal, surely at least some of them would have been willing to give a legally innocent defendant that to which he was entitled-viz., a judgment of acquittal-rather than just a new trial. 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 429 Opinion of the Court issue, and did not purport to be issuing, a writ of coram nobis, that writ would not have lain here, since it was tradi- tionally available only to bring before the court factual errors "material to the validity and regularity of the legal proceeding itself," such as the defendant's being under age or having died before the verdict. See United States v. Mayer, 235 U. S. 55, 67­68 (1914). Moreover, "[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Pennsylvania Bureau of Correction v. United States Mar- shals Service, 474 U. S. 34, 43 (1985). As we noted a few years after enactment of the Federal Rules of Criminal Pro- cedure, "it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate." United States v. Smith, 331 U. S., at 475, n. 4. In the present case, Rule 29 provides the applicable law. Second, petitioner asserts that the failure to allow the Dis- trict Court to enter a judgment of acquittal would violate the Due Process Clause of the Fifth Amendment. His ar- gument on this point consists of nothing more than bald as- sertions that Rule 29(c) as applied to the facts of this case transgresses principles of fundamental fairness, "shocks the conscience," and interferes with rights "implicit in the con- cept of ordered liberty." Brief for Petitioner 28­29 (inter- nal quotation marks omitted) (citing Herrera v. Collins, 506 U. S. 390 (1993); Rochin v. California, 342 U. S. 165, 172 (1952); Palko v. Connecticut, 302 U. S. 319, 325­326 (1937)). Petitioner has failed to proffer any historical, textual, or con- trolling precedential support for his argument that the in- ability of a district court to grant an untimely postverdict motion for judgment of acquittal violates the Fifth Amend- ment, and we decline to fashion a new due process right out of thin air. 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT 430 CARLISLE v. UNITED STATES Opinion of the Court Third, petitioner argues that prohibiting a district court from granting a motion for judgment of acquittal filed one day late will lead to needless appeals and habeas corpus pro- ceedings, where it will be more difficult for defendants to obtain relief than in motions directed to the trial court. As- suming, arguendo, that these contentions are accurate, we cannot permit them to alter our analysis, for we are not at liberty to ignore the mandate of Rule 29 in order to obtain "optimal" policy results. Cf. United States v. Robinson, 361 U. S. 220, 229­230 (1960). We are similarly unmoved by petitioner's contention that the "rationale" behind Rule 29(c)'s time limit does not apply where the motion for judg- ment of acquittal is filed a mere eight days after the trial. The only evident "rationale" behind Rule 29(c)'s 7-day time limit is that a motion for judgment of acquittal filed eight days after trial is a motion filed one day later than justice and equity demand. As we said in a case involving the filing deadline of the Federal Land Policy and Management Act of 1976, 43 U. S. C. § 1744 (1988 ed.): "If 1-day late filings are acceptable, 10-day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it." United States v. Locke, 471 U. S. 84, 101 (1985). V Finally, we may respond to some of the many arguments put forward by the dissent. The dissent makes the sweep- ing assertion that "a district court clearly has the inherent authority to ensure that a legally innocent defendant is not wrongfully convicted," post, at 442. Perhaps so. As the dissent itself recognizes, however, that power has come to an end once an appeal has been taken. Post, at 452­453. We are in accord, then, that there is some point at which the district court is rendered powerless to enter a judgment of acquittal, and the disagreement between us and the dissent 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 431 Opinion of the Court comes down to nothing more cosmic than the question of tim- ing-which we find answered by the text of Rule 29. In an effort to explain why, if a Rule 29(c) motion is in any event unnecessary, it makes any sense to impose a 7-day deadline upon the making of it, the dissent maintains that the untimeliness of a motion gives a district court discretion to ignore it. Post, at 445. This presents the disedifying prospect of a court vested with "the inherent authority to ensure that a legally innocent defendant is not wrongfully convicted," post, at 442, exercising its discretion to let an innocent defendant be wrongfully convicted. Quite obvi- ously, this explanation of the deadline is incompatible with the premise that underlies the dissent's entire argument. As for the dissent's concern, post, at 448, that our decision runs afoul of Rule 2's mandate that the rules "be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay": We see neither simplicity, nor fairness, nor elimination of delay in a regime that makes it discretionary whether an untimely motion for judgment of acquittal will be entertained. The dissent asserts that "permissive rules do not with- draw pre-existing inherent powers." Post, at 452. That as- sertion is really not relevant to the present case since, as we have discussed, the power to enter postverdict judgments of acquittal sua sponte was not a "pre-existing inherent power." See supra, at 426­428, and n. 5. But besides the lack of factual predicate for its application here, the principle the dissent proposes would produce some extraordinary con- sequences. For example, as the cases cited by the dissent illustrate, see post, at 439­440, courts previously have or- dered new trials sua sponte. Federal Rule of Criminal Pro- cedure 33, however, provides that "[t]he court on motion of a defendant may grant a new trial . . . ." Following the dissent's logic, Rule 33, being permissive, does not preclude a court from granting a new trial without motion, thereby leaving open to the court a course of action that may well 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT 432 CARLISLE v. UNITED STATES Opinion of the Court violate the Double Jeopardy Clause. But see Advisory Committee's Notes on 1966 Amendment of Fed. Rule Crim. Proc. 33, 18 U. S. C. App., p. 801 ("The amendments to the first two sentences make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by a defendant. Prob- lems of double jeopardy arise when the court acts on its own motion"). Similarly, a pre-existing practice, if there was one, would allow a subpoena to be served by a party or a minor despite Federal Rule of Criminal Procedure 17(d) ("A subpoena may be served by the marshal, by a deputy mar- shal or by any other person who is not a party and who is not less than 18 years of age"); would allow a judge from another district to take over a jury trial from a disabled judge despite Federal Rule of Criminal Procedure 25(a) ("If . . . the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court . . . may proceed with and finish the trial"); and would allow a court to correct a technical error in a sentence more than seven days after the imposi- tion of the sentence, despite Federal Rule of Criminal Proce- dure 35(c) ("The court, acting within 7 days after the imposi- tion of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error"). The decisions of Justice Harlan relied upon by the dissent to support the proposition that permissive rules do not elimi- nate inherent powers are not germane. We have discussed Link above, see supra, at 426. In United States v. Ohio Power Co., 353 U. S. 98, 104 (1957), Justice Harlan noted that this Court has proceeded on the assumption that we have inherent authority to "affect judgments by action which would otherwise be out of time under [our own] Rules." That statement would be relevant if the present case in- volved a district court's departure from one of its own rules-which of course it does not. In Fernandez v. United 517US2$47K 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 433 Opinion of the Court States, 81 S. Ct. 642 (1961), 5 L. Ed. 2d 683 (Harlan, J., in chambers), Justice Harlan recognized that the provision of former Federal Rule of Criminal Procedure 46(a) that a "per- son arrested for an offense not punishable by death shall be admitted to bail" (emphasis added) did not withdraw district courts' authority to revoke bail in a noncapital case. Fer- nandez, supra, at 644, and n. 7, 5 L. Ed. 2d, at 685, and n. 7. What admitting to bail implies with respect to revocation of bail is not comparable to what granting judgment on motion implies with respect to granting judgment without motion. What the dissent needs, in the Fernandez context, is a case holding that a statute which permits bail for "persons ar- rested for noncapital offenses" does not preclude bail for per- sons arrested for capital offenses. Of course, such a case will not be found. Finally, the dissent contends that United States v. Sisson, 399 U. S. 267 (1970), supports existence of the "inherent power" petitioner invokes. See post, at 448­449. We think not. Sisson did not "implicitly conclude" that it was proper to enter a postverdict judgment of acquittal without motion, because the propriety of the judgment of acquittal was irrel- evant to the decision. The only issue was whether the judg- ment appealed from was a judgment of acquittal (proper or improper), because that would mean that the Government's appeal under the former 18 U. S. C. § 3731 (which did not apply to judgments of acquittal) must be dismissed. See United States v. Wilson, 420 U. S. 332, 351 (1975) (appeal in Sisson "was barred solely by the statute"). * * * We conclude that the District Court had no authority to grant petitioner's motion for judgment of acquittal filed one day outside the time limit prescribed by Rule 29(c). We therefore affirm the judgment of the Sixth Circuit. It is so ordered. 517US2$47M 02-07-99 17:26:51 PAGES OPINPGT 434 CARLISLE v. UNITED STATES Ginsburg, J., concurring Justice Souter, concurring. In Part I of his dissenting opinion, Justice Stevens makes a persuasive argument that, absent a rule to the con- trary, district judges have an "inherent authority" to enter a judgment of acquittal, although, for the reasons offered by the majority, ante, at 426, I am not persuaded that this inher- ent authority extends to the power to act sua sponte to grant a judgment of acquittal after the jury has returned a verdict. In any event, I accept the received view that inherent power generally is subject to legislative abrogation, see Bank of Nova Scotia v. United States, 487 U. S. 250, 254­255 (1988); ante, at 426, and although Congress's power is not necessarily plenary, its limits are not implicated here. While there may be some point at which legislative interference with a court's inherent authority would run afoul of Article III, see Cham- bers v. NASCO, Inc., 501 U. S. 32, 58 (1991) (Scalia, J., dis- senting) ("Some elements of that inherent authority are so essential to `[t]he judicial Power,' U. S. Const., Art. III, § 1, that they are indefeasible"), it is not seriously contended that Rule 29(c) is an unconstitutional interference with the court's inherent authority. I therefore join the Court's opinion. Justice Ginsburg, with whom Justice Souter and Justice Breyer join, concurring. I join the opinion of the Court and highlight features of the case key to my judgment. It is anomalous to classify time prescriptions, even rigid ones,* under the heading "subject matter jurisdiction." That most basic requirement relates to the subject matter of the case or controversy or the status of the parties to it. See 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3522, p. 78 (2d ed. 1984); Restatement (Sec- ond) of Judgments § 11 (1982) (defining "subject matter juris- *See Fed. Rule Crim. Proc. 45(b) (listing time rules that are not subject to enlargement for "cause shown"). 517US2$47P 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 435 Ginsburg, J., concurring diction" as the "authority [of the court] to adjudicate the type of controversy involved in the action"); cf. United States v. Kember, 648 F. 2d 1354, 1357­1358 (CADC l980) (per curiam) (commenting on "manifold settings in which we employ the term [jurisdiction]" and distinguishing fundamental "juris- diction" questions from issues of a less basic character); Cen- ter for Nuclear Responsibility, Inc. v. United States Nuclear Regulatory Comm'n, 781 F. 2d 935, 945, n. 4 (CADC 1986) (Ginsburg, J., dissenting) (questioning "profligate use" of the word "jurisdiction," in diverse contexts, "to mean many things-from the absence of a constitutional grant of judicial power to a statutory limit on time to appeal"). Federal Rule of Criminal Procedure 29(c) concerns a mat- ter less basic. It is simply a time prescription. Rule 29(c)'s prescription is a tight one, to be sure. Federal Rule of Criminal Procedure 45(b) makes that clear by precluding ex- tensions, even for "excusable neglect," after expiration of the seven days specified in Rule 29(c). But like limitation periods generally, see, e. g., Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990) ("[t]ime requirements in law- suits . . . are customarily subject to `equitable tolling' "), the 29(c)/45(b) constraint is not utterly exceptionless. This Court has recognized one sharply honed exception to rules of the 29(c)/45(b) genre. That exception covers cases in which the trial judge has misled a party who could have- and probably would have-taken timely action had the trial judge conveyed correct, rather than incorrect, information. See Thompson v. INS, 375 U. S. 384, 386­387 (1964) (per curiam) (had trial judge not misinformed party that his new trial motion was made "in ample time," party "could have, and presumably would have, filed the appeal within 60 days of the entry of the original judgment, rather than waiting, as he did, until after the trial court had disposed of the [new trial motion]"); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215, 216­217 (1962) (per curiam) (in- structing that petitioner's appeal be heard on the merits 517US2$47P 02-07-99 17:26:51 PAGES OPINPGT 436 CARLISLE v. UNITED STATES Stevens, J., dissenting where petitioner had received from trial court an improperly grounded 14-day extension of the time to file his appeal); see also 4A Wright & Miller, Federal Practice and Procedure § 1168, at 501 (describing Thompson and Harris Truck Lines as "based on a theory similar to estoppel"). As the Court observes, however, this exception "is not pertinent here." See ante, at 428. Carlisle's counsel was not misled by any trial court state- ment or action; rather, he neglected to follow plain instruc- tions. Rule 29(c) clearly instructs that a motion for a judg- ment of acquittal be filed "within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period." Just as clearly, Rule 45(b) ex- cludes motions for enlargement once seven days have run. I agree that a rule like 29(c) is framed to resist ad hoc relax- ation. A time line must be drawn at some point, and it is not unreasonable to draw the line as the rulemakers did, rather than extend it out to the day set for sentencing. It bears emphasis, finally, that the Government recognizes legal avenues still open to Carlisle to challenge the suffi- ciency of the evidence to warrant his conviction: on appeal (subject to "plain error" standard); and through a postconvic- tion motion, under 28 U. S. C. § 2255, asserting ineffective assistance of counsel. Brief for United States 38­39. In the rare situations Justice Stevens envisions-delay of a meritorious motion due to an Act of God, see post, at 454, or cases comparable to those in which we would read and grant an out-of-time rehearing petition, see post, at 450­451- these modes of relief should provide an adequate corrective. Justice Stevens, with whom Justice Kennedy joins, dissenting. As long as a federal court retains jurisdiction over a crimi- nal case, it has the authority to ensure that no conviction is entered unless the prosecutor has proved the defendant's guilt. The exercise of the court's inherent power to set 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 437 Stevens, J., dissenting aside a jury verdict unsupported by evidence is not contin- gent on the filing of a timely motion by the defendant. The question in this case, therefore, is not whether Rule 29 of the Federal Rules of Criminal Procedure authorizes the court to grant an untimely motion for judgment of acquittal; I agree with the Court that it does not. Rather, the question is whether that Rule withdraws the court's pre-existing au- thority to refrain from entering judgment of conviction against a defendant whom it knows to be legally innocent. Viewed in this light, the majority places more reliance on the negative implication in Rule 29 than its permissive lan- guage can bear. Assuming it exists at all, this negative im- plication is far too weak to justify the conclusion that Rule 29 manifests that Congress desired to withdraw a federal court's inherent authority to acquit an innocent defendant. I Trial judges are kept busy responding to motions, objec- tions, and requests by the litigants. It is quite wrong, how- ever, to assume that a judge is nothing more than a referee whose authority is limited to granting or denying motions advanced by the parties. As Learned Hand tersely noted, a "judge, at least in a federal court, is more than a modera- tor; he is affirmatively charged with securing a fair trial, and he must intervene sua sponte to that end, when necessary." Brown v. Walter, 62 F. 2d 798, 799 (CA2 1933). That duty encompasses not only the avoidance of error before it occurs, but the correction of error that may have occurred earlier in a proceeding. The basic principle has been stated many times. There is a "power `inherent in every court of justice so long as it re- tains control of the subject matter and of the parties, to correct that which has been wrongfully done by virtue of its process.' Arkadelphia Co. v. St. Louis Southwestern Ry. Co., 249 U. S. 134, 146. See Northwestern Fuel Co. v. Brock, 139 U. S. 216, 219." United States v. Morgan, 307 U. S. 183, 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT 438 CARLISLE v. UNITED STATES Stevens, J., dissenting 197 (1939). Although that statement was made in a civil case, we have made it clear that a federal court has even broader discretion to notice error independently in the trial of a criminal case than in civil cases. Crawford v. United States, 212 U. S. 183, 194 (1909). Examples of the exercise of the federal courts' inherent powers are abundant in both our civil and our criminal juris- prudence.1 Indeed, when he was serving on the Court of Appeals for the Ninth Circuit, then-Judge Kennedy, after considering a series of cases that recognized various inher- ent judicial powers,2 correctly pointed out: 1 A few examples illustrate the breadth of that power. We have held that a district court "has inherent power to dismiss a suit pursuant to the doctrine of forum non conveniens," Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 502 (1947); to dismiss an appeal in a criminal case if the defendant is a fugitive, Molinaro v. New Jersey, 396 U. S. 365, 366 (1970); to enforce compliance with lawful orders through civil contempt, Shillitani v. United States, 384 U. S. 364, 370 (1966); to order special conferences that will aid in the disposition of a complex antitrust case, United States v. United States Gypsum Co., 340 U. S. 76, 81 (1950); and to stay proceedings "to control the progress of the cause so as to maintain the orderly processes of justice," Enelow v. New York Life Ins. Co., 293 U. S. 379, 381­382 (1935). We have also recognized the court's inherent power to enforce its judg- ments, see Peacock v. Thomas, 516 U. S. 349 (1996), as well as its inherent power to award attorney's fees in exceptional cases, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 256 (1975). 2 "E. g., Roadway Express, Inc. v. Piper, 447 U. S. 752, 764­67 . . . (1980) (assessing costs against parties or attorneys); Cooke v. United States, 267 U. S. 517, 534 . . . (1925) (contempt power); United States v. Armstrong, 621 F. 2d 951, 954­55 (9th Cir. 1980) (allowing inspection of property be- longing to third parties); Franquez v. United States, 604 F. 2d 1239 (9th Cir. 1979) (ordering jury trial on an issue when not contemplated by stat- ute); In re Sealed Affidavit(s) to Search Warrants (Agosto), 600 F. 2d 1256 (9th Cir. 1979) (sealing papers filed with the court); United States v. Simmons, 536 F. 2d 827, 832­34 (9th Cir.), cert. denied, 429 U. S. 854 . . . (1976) (dismissal for want of prosecution); United States v. Malcolm, 475 F. 2d 420 (9th Cir. 1973) (ordering a defendant to undergo a psychiatric exam)." Arizona v. Manypenny, 672 F. 2d 761, 765 (CA9 1982). 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 439 Stevens, J., dissenting "Exercise of judicial power by entry of orders not ex- pressly sanctioned by rule or statute in order to correct the legal process or avert its misfunction has been ap- proved in varied circumstances." Arizona v. Many- penny, 672 F. 2d 761, 765, cert. denied, 459 U. S. 850 (1982). When a federal court declines to enter a judgment of con- viction against a defendant whom it should have directed the jury to acquit, it clearly corrects the legal process and averts its misfunctioning. Given the various sua sponte powers that district courts unquestionably may exercise in order to ensure that legally innocent defendants are not convicted, it is clear that they also possess the inherent authority sua sponte to enter postverdict acquittals when the Government has failed to prove that a defendant is guilty. District courts have long exercised their inherent power to direct an acquittal sua sponte when the prosecution fails to prove its case at the close of evidence. See Wiborg v. United States, 163 U. S. 632, 659 (1896); Cady v. United States, 293 F. 829 (CADC 1923); Nosowitz v. United States, 282 F. 575, 578 (CA2 1922).3 They have also long exercised 3 Indeed, Cady referred to "the well-established and oft-repeated princi- ple that, unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial court to in- struct the jury to return a verdict for the accused . . . ." 293 F., at 830 (emphasis added). Moreover, in both of the cases cited by the majority as supporting the existence of the power exercised here, United States v. McCracken, 26 F. Cas. 1069 (No. 15,664) (ED Va. 1878), and United States v. Hayden, 26 F. Cas. 236, 238 (No. 15,333) (NDNY 1877), see ante, at 426­427, the district judges directed the jury to return a verdict of not guilty. In the Hayden case, the court went on to describe what I assume was the settled practice among all federal judges at the time: "I have made it a rule to direct a verdict of not guilty where, in my opinion the evidence will not authorize the jury to find a verdict of guilty, or, if so found, I would set aside the verdict as contrary to evidence. I think this is a case of that class, and I therefore direct the jury to find a verdict of not guilty." 26 F. Cas., at 238. 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT 440 CARLISLE v. UNITED STATES Stevens, J., dissenting their inherent power to set aside a jury verdict for insuffi- ciency of the evidence sua sponte. See United States v. Harding, 26 F. Cas. 131, 136 (No. 15,301) (ED Pa. 1846); United States v. Fullerton, 25 F. Cas. 1225 (No. 15,176) (SDNY 1870); see also F. Wharton, Criminal Law of the United States 669 (1846) ("Where, however, evidence is not sufficient in law to authorize a verdict, a new trial will be granted, even though no objection be made at the trial"); id., at 643(s) (explaining that the judge reserves "it to himself, if there be an improper conviction, to arrest the judgment or set aside the verdict"); Charles v. State, 4 Port. 107, 109­110 (Ala. 1836).4 The District Courts' longstanding exercise of these inher- ent powers is entirely consistent with the conclusion that a district court acts within its power when it enters a judg- ment of acquittal upon setting aside an unsupported jury verdict. To be sure, the early cases reveal that District Courts typically ordered new trials, rather than acquittals, upon concluding that the jury's verdict was not supported by legally sufficient evidence. However, subsequent cases demonstrate that as courts became concerned that the new 4 Out of deference to the King, the rule was apparently different in Eng- land. See 1 J. Stephen, A History of the Criminal Law of England 312­ 313 (1883); but cf. 3 W. Blackstone, Commentaries *389­*390. Even still, English judges evaded the procedural bar by declining to enter sentence and requesting the Crown to pardon wrongfully convicted defendants. These requests were routinely granted. See Ex parte United States, 101 F. 2d 870, 875, n. 15 (CA7 1939). Judge Kane explained that he did "not remember to have read of a single instance in which the judicial recom- mendation has been disregarded by the ministers of the crown, and [he did] not suppose that it could be without a breach of the constitution of the realm." United States v. Harding, 26 F. Cas. 131, 137 (No. 15,301) (ED Pa. 1846). As a result of this consistent practice, he concluded that "[i]n England, therefore, the denial to the courts of a revisory power over verdicts in any cases is apparent, rather than real. The judge, if dissatis- fied with a conviction on the merits, respites the sentence or reprieves the prisoner, and the king's prerogative interposes to do justice as a thing of course." Ibid. 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 441 Stevens, J., dissenting trial remedy trenched on the prohibition against double jeop- ardy, they began to enter judgments of acquittals. See Ex parte United States, 101 F. 2d 870, 878 (CA7 1939), aff'd by an equally divided Court in United States v. Stone, 308 U. S. 519 (1939). The earliest cases involve appellate courts entering judg- ments of acquittal in order to remedy a district court's failure to direct the jury to acquit. See Nosowitz v. United States, 282 F. 575 (CA2 1922); Cherry v. United States, 78 F. 2d 334 (CA7 1935); Reiner v. United States, 92 F. 2d 823 (CA9 1937); see also France v. United States, 164 U. S. 676 (1897) (re- manding to the District Court with directions to enter such judgment); Romano v. United States, 9 F. 2d 522 (CA2 1925) (same). Later cases reveal that District Courts soon fol- lowed suit, either by ruling on reserved, preverdict acquittal motions or by granting postverdict motions to acquit. See Ex parte United States, 101 F. 2d 870 (CA7 1939); United States v. Standard Oil Co., 23 F. Supp. 937 (WD Wis. 1938), aff'd in United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 165, n. 1 (1940); State v. Meen, 171 Wis. 36 (1920) (same); see also Advisory Committee's Notes to Rule 29 (endorsing these practices). Moreover, prior to the adoption of Rule 29 in 1944, the Fifth Circuit explained that, even after a jury returns a verdict, a court "may and should" sua sponte review the sufficiency of the evidence. Ansley v. United States, 135 F. 2d 207, 208 (1943). In light of this history, it makes no sense to conclude that a federal district court lacks the inherent power to enter sua sponte a postverdict judgment of acquittal. A trial court's postverdict entry of a judgment of acquittal is in substance no different from an appellate court's order directing entry of that same judgment. Moreover, the double jeopardy con- cerns that may bar a district court from ordering a new trial to remedy its failure to have directed an acquittal cannot sensibly be understood to prohibit the district court from providing a defendant some measure of relief from a legally 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT 442 CARLISLE v. UNITED STATES Stevens, J., dissenting insufficient guilty verdict. See United States v. Smith, 331 U. S. 469, 474 (1947). Finally, given that a motion was not thought to be needed in order for the District Court to exer- cise its inherent power either to direct an acquittal, or to set aside an unsupported verdict and order a new trial, there is no reason to conclude that a district court is utterly power- less to remedy a wrongful conviction in the exceedingly rare circumstance in which an unforeseen accident results in the defendant's failure to file a motion for acquittal. In all events, a district court clearly has the inherent au- thority to ensure that a legally innocent defendant is not wrongfully convicted. It would be most strange to conclude that this authority, which enables a district court to keep a case from the jury altogether when the Government fails to prove its case, does not permit that same court to revise a guilty verdict that the jury returns despite the Govern- ment's insufficient proof. That conclusion is particularly dif- ficult to fathom when one considers that the latter action may be appealed by the Government, while the former may not. United States v. Wilson, 420 U. S. 332, 345 (1975). Not surprisingly, therefore, numerous courts have recog- nized that, prior to the passage of Rule 29, district courts possessed the inherent power to acquit defendants sua sponte. See United States v. Hughes, 759 F. Supp. 530, 532­ 536 (WD Ark.), aff'd sub nom. United States v. Haren, 952 F. 2d 190 (CA8 1991); United States v. DiBernardo, 880 F. 2d 1216, 1225, n. 4 (CA11 1989); United States v. Coleman, 811 F. 2d 804 (CA3 1987); United States v. Giampa, 758 F. 2d 928, 936, n. 1 (CA3 1985); Arizona v. Manypenny, 672 F. 2d, at 765; Ansley v. United States, 135 F. 2d, at 208; see also United States v. Weinstein, 452 F. 2d 704, 713, 714 (CA2 1971); United States v. Broadus, 664 F. Supp. 592, 595­598 (DC 1987). The majority states that no pre-Rule case establishes the precise power at issue here. Ante, at 427­428, n. 5. That 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 443 Stevens, J., dissenting is true but unremarkable. The majority does not dispute that, prior to the passage of Rule 29, trial courts possessed the inherent power to remedy unsupported guilty verdicts by ordering new trials sua sponte. After Rule 29 was adopted, this Court pointed out the double jeopardy concerns raised by the sua sponte exercise of the new trial remedy. See United States v. Smith, 331 U. S., at 474. Since that time, numerous cases have concluded that courts may rem- edy unsupported jury verdicts by entering judgments of ac- quittal. The majority offers no principled reason for con- cluding that this more recent remedy is beyond the power of district courts, even though the prior remedy was not. In sum, the error-correcting power that is " `inherent in every court of justice so long as it retains control of the sub- ject matter and of the parties,' " Morgan, 307 U. S., at 197, encompasses the kind of error at issue in this case. There- fore, absent some express indication that Congress intended to withdraw the power that implicitly attends its initial grant of jurisdiction, a district court acts well within its discretion when it sets aside a jury verdict and acquits a defendant because the prosecution failed to prove its case. II Because the Acts of Congress investing federal judges with jurisdiction to try criminal cases are the source of a district court's power to set aside unsupported jury verdicts, I have no occasion to disagree with the Court's view that petitioner errs in relying on Rule 29 as the source of the District Court's authority in this case. I do, however, strongly disagree with the Court's own reliance on that Rule for the quite different conclusion that it clearly prohibits the power exercised by the District Court here. In Part III of its opinion, the majority asserts that the District Court's action "contradicted the plain language of Rule 29(c), and effectively annulled the 7-day filing limit," 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT 444 CARLISLE v. UNITED STATES Stevens, J., dissenting ante, at 426, and that "the clarity of the text" suffices to prohibit the District Court's action, ibid. The majority as- sumes that these conclusory assertions follow implicitly from its determination in Part II of its opinion that Rule 29 does not authorize the District Court to set aside a jury verdict sua sponte. In my view, the Rule serves three salutary purposes that are in no tension with a district court's inherent power to enter a judgment of acquittal sua sponte. None of these purposes would be frustrated if the Rule were understood to coexist with, though not to authorize, a district court's power to avoid imposing sentence on an innocent defendant in the truly exceptional case in which evidence of guilt is wholly lacking. First, subdivision (a) confirms the view that a judge has a duty to direct an acquittal if the prosecution has failed to prove its case at the close of evidence. The Rule's affirma- tion of that duty is in no way inconsistent with a court's exercise of its postverdict power to enter sua sponte a judg- ment of acquittal. As then-Judge Kennedy explained for the Ninth Circuit in Arizona v. Manypenny, 672 F. 2d, at 764: "We do not read the mention in Rule 29(a) of a court granting such a judgment `on its own motion' before submis- sion to a jury as an elimination of a court's inherent power to grant such a judgment after submission to the jury." Second, subdivision (b) accommodates the defendant's right to move for a directed acquittal with the Government's right to seek appellate review. Indeed, the subdivision was amended in 1994 for the very purpose of striking a more proper balance between those two interests. See Advisory Committee's Notes to Fed. Rule Crim. Proc. 29(b), 18 U. S. C. App., pp. 784­785. As a result, a district court's sua sponte decision to acquit after the jury returns a guilty verdict can hardly be said to undermine the purpose of subdivision (b). The defendant's interests are obviously fully protected by an acquittal, while the Government's right to appeal is pro- 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 445 Stevens, J., dissenting tected because the jury has already returned its verdict of guilt. See United States v. Wilson, 420 U. S., at 345.5 Third, subdivision (c) requires defense counsel to file the postverdict motion for judgment of acquittal promptly, while the trial judge presumably retains a firm recollection of the evidence and therefore is able to rule expeditiously and effi- ciently. The untimeliness of a later motion provides the judge with a sufficient reason for denying it without even reading it or reviewing the transcript. Thus, a judge's en- tirely discretionary decision to enter sua sponte an acquittal after the 7-day period in no way annuls the 7-day deadline. Defendants are still bound by that time limitation, and the Rule thus serves the useful function of limiting a defendant's right to require a judge to reconsider the sufficiency of the evidence. As then-Judge Kennedy explained: "Rule 29(c) creates a deadline by which defendants must present mo- tions for judgment of acquittal to the court; it does not ad- dress the court's inherent power to grant such a judgment." Arizona v. Manypenny, 672 F. 2d, at 764. 5 The majority is also wrong to contend that it would make a "farce" of subdivision (b) to construe it to permit judges to act sua sponte. Ante, at 422. There are sound reasons for setting forth regulations concerning a court's power to reserve a defense motion that it must entertain even if the court also possesses the entirely discretionary power to acquit at any time on its own initiative as long as it possesses jurisdiction over the case. For example, the new Rule 29(b) makes clear that the district court, even if it reserves a motion for acquittal filed after the prosecution's case in chief, may not consider any evidence submitted thereafter in disposing of the motion. That limitation on the district court's authority protects a defendant's right to make a motion for acquittal and to put on rebuttal evidence without risking that new evidence of guilt will emerge. Such a protection serves a useful function even though in the absence of a motion to acquit a court would have the discretionary power to enter judgment in the defendant's favor. Thus, it is simply not true that there "would be no need" for the procedures set forth in Rule 29(b) if, "even without re- serving, the court had continuing power to grant judgment of acquittal on its own." Ibid. 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT 446 CARLISLE v. UNITED STATES Stevens, J., dissenting The majority nevertheless maintains that the Rule must be read to require judges, in some instances, to enter judg- ments of conviction against defendants they know to be inno- cent. The majority does not argue that Rule 29 expressly prohibits a district court from acting on its own to set aside an unsupported jury verdict. Rather, it relies solely on the negative inference that it draws from the absence of three words in one sentence of Rule 29(c). Ante, at 423.6 Spe- cifically, the majority seizes upon the "notabl[e] absen[ce]" of the phrase "on such motion" in the third sentence of the Rule, ibid., and concludes that this omission "convey[s] the idea that, where a jury has not returned a verdict, a court can act without motion, but where a jury has returned a guilty verdict, it cannot," ibid. In light of the pre-Rule precedent establishing a district court's inherent power to review sua sponte a jury verdict for sufficiency of the evidence, see Ansley v. United States, 135 F. 2d, at 208, the majority reads far too much into the omission. The caption to Rule 29(c) makes clear that the subdivision only contemplates judicial action taken in re- sponse to a motion. The first sentence explains that a mo- tion may be made after a jury's discharge whether or not a guilty verdict has been returned. The next sentence sets forth the action that the district court may take when such a motion is filed after the jury returns a guilty verdict. In a similar vein, the third sentence sets forth the action that the district court may take when no verdict has been re- 6 Rule 29(c) reads as follows: "(c) Motion after Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no ver- dict is returned the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury." 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 447 Stevens, J., dissenting turned. The omission of the words "on such motion" from the third sentence surely just reflects a draftsman's sensible decision to avoid a patent redundancy rather than a cryptic intent to change the law by prohibiting a judge from exer- cising his or her inherent power to enter a judgment of acquittal.7 Common sense refutes what the text fails to compel. Under the majority's reading, Rule 29(c) establishes a most inefficient regime for setting aside unsupported jury verdicts by requiring defendants to file appeals and collateral chal- lenges to judgments of conviction that district judges knew to be unsupported. Given that Federal Rule of Criminal 7 The inclusion of the phrase "on such motion" in the second sentence of Rule 29(c) is no mystery. Unlike the present Rule, the original version of Rule 29 permitted the defendant to move either for a new trial or for an acquittal after the jury had been discharged. The next sentences of the original Rule stated that the district court was authorized to grant either a new trial or an acquittal whether or not the jury returned a ver- dict. The inclusion of the phrase "on such motion" was necessary in order to make clear that the judge could not order a new trial unless the defend- ant first requested one. Contrary to the majority's construction of the relevant language, there is no reason to suppose that the phrase "on such motion" in the old Rule applied only to the circumstance in which the jury returned a verdict. Under such a construction, the original Rule would have been intended to "conve[y] the idea," ante, at 423, that the District Court possessed the authority to impose a new trial against the defendant's wishes whenever the jury had been discharged without having returned a verdict. It is clear that the drafters never intended to convey such a potentially uncon- stitutional idea. Indeed, it was the drafters' concern that the original Rule might be subject to the potentially unconstitutional "interpretation that a motion for judgment of acquittal gives the court power to order a new trial even though the defendant does not a wish a new trial and has not asked for one" that led them to eliminate all references to new trial orders in what is now Rule 29(c). Advisory Committee's Notes on Fed. Rule Crim. Proc. 29, 18 U. S. C. App., pp. 784­785. There is no hint in the Advisory Committee's Notes, or the Rule's drafting history, that this limit- ing revision was simultaneously intended to link the district court's power to acquit for insufficiency of the evidence with the jury's return of a verdict. 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT 448 CARLISLE v. UNITED STATES Stevens, J., dissenting Procedure 2 directs that the rules "shall be construed to se- cure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay," there is no reason to read the ambiguity in Rule 29(c) to prohibit a district court from correcting a plain error that would other- wise be challenged in a subsequent court proceeding.8 Indeed, our decision in United States v. Sisson, 399 U. S. 267 (1970), reveals that when we previously considered Rule 29 we did not understand it to prohibit a district court from sua sponte entering a postverdict judgment of acquittal. There, defendant's counsel moved postverdict to arrest judg- ment under Federal Rule of Criminal Procedure 34. 399 U. S., at 276. The District Court purported to grant the Rule 34 motion on evidentiary and constitutional grounds that the defendant's motion did not raise. Id., at 277, n. 6. The Government sought review from this Court pursuant to 18 U. S. C. § 3731, which at that time permitted governmen- tal appeals from orders arresting judgment but not from or- ders entering judgments of acquittal. 399 U. S., at 279­280. In holding that we lacked jurisdiction to hear the Govern- ment's appeal, we explained that although the District Court termed its order an "arres[t] [of] judgment," it was in fact an acquittal. Id., at 288. The portion of Justice Harlan's opinion that five Members of the Court joined equated the District Court's sua sponte acquittal with an acquittal by a jury. As support for the comparison, the opinion explained that, under Rule 29, "judges, like juries, can acquit defend- ants." Id., at 290. Moreover, it noted that Rules 29(b) and 8 The majority dismisses these concerns by suggesting that because we agree that a district court lacks the power to enter a judgment of acquittal after an appeal is taken, we disagree only as to "timing." Ante, at 431. In truth, our point of disagreement is more fundamental. It concerns the power of a court to correct a miscarriage of justice while it retains jurisdic- tion over a case. Because an appeal can only be taken once a judgment has been entered, the real issue that divides us is whether the Federal Rules of Criminal Procedure compel a district court to enter a judgment of conviction against a defendant whom it knows to be innocent. 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 449 Stevens, J., dissenting (c) of the Federal Rules of Criminal Procedure "expressly allow a federal judge to acquit a criminal defendant after the jury `returns a verdict of guilty.' " Ibid.; see also United States v. Weinstein, 452 F. 2d, at 713, 714 (explaining that Sisson determined that the District Court in that case acted within its jurisdiction in entering the postverdict judgment of acquittal). Although the merits of the judgment of acquittal were not before the Court in Sisson, the trial court's jurisdiction to enter the judgment plainly was. Just as a trial court's post- judgment acquittal could not have mooted a pending appeal, neither could a jurisdictionally barred action have prevented an appeal from being taken. Nevertheless, the Sisson Court did not identify any jurisdictional bar to the judge's entry of a postverdict acquittal motion, even though no Rule 29 motion had been filed. I am therefore mystified as to why the Court now concludes that the Rule can only be read to deprive the district court of jurisdiction to acquit postver- dict in the absence of a defendant's motion. Our prior construction of procedural rules that employ permissive language similar to that used in Rule 29 rein- forces the implicit conclusion that we reached in Sisson. As we recently explained, our prior cases reveal that although Congress may limit the exercise of the inherent power of lower federal courts, " `we do not lightly assume that Con- gress has intended' " to do so. Chambers v. NASCO, Inc., 501 U. S. 32, 47 (1991) (quoting Weinberger v. Romero- Barcelo, 456 U. S. 305, 313 (1982)). That interpretive prin- ciple suggests that something far more than an ambiguous silence is required to withdraw a district court's inherent power. Link v. Wabash R. Co., 370 U. S. 626 (1962), sets forth the proper analysis. In Link, we rejected the argument that the authority granted to a defendant by Rule 41 of the Rules of Civil Procedure to move for an involuntary dismissal of a complaint, by negative implication, precluded such a dis- 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT 450 CARLISLE v. UNITED STATES Stevens, J., dissenting missal on the court's own motion. In his opinion for the Court, Justice Harlan explained: "We do not read Rule 41(b) as implying any such restriction. Neither the permissive language of the Rule-which merely authorizes a motion by the defend- ant-nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inac- tion or dilatoriness of the parties seeking relief. The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an `inherent power,' governed not by rule or statute but by the con- trol necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious dis- position of cases." Id., at 630­631 (footnote omitted).9 Our practice with respect to petitions for rehearing is also instructive. Such petitions, like motions for a judgment of acquittal, are routinely filed and almost never granted. If not filed within the time specified in our Rules, it is appro- priate to deny such a petition without even reading it. On rare occasions, however, we have held that the interest in the evenhanded administration of justice outweighs the in- terest in finality and granted such petitions even though un- 9 In an effort to distinguish Link, the Court asserts that the practice of setting aside insufficient jury verdicts in criminal cases is far less established than was the practice of dismissing cases for want of prosecu- tion. It further contends that the "clarity of the text," ante, at 426, in this case renders the logic of Link inapplicable. Link cannot fairly be read to suggest that inherent powers of recent origin may be more easily withdrawn than those of older vintage. In any event, the court's inherent power to set aside criminal convictions unsupported by evidence has been long accepted. Finally, given that Justice Harlan authored both Link and Sisson, I find most unpersuasive the majority's conclusion that the "clarity of the text" in Rule 29 should occasion a different result from that reached in Link. 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 451 Stevens, J., dissenting timely and even though there is not a word in our Rules that authorized such action. Thus, in United States v. Ohio Power Co., 351 U. S. 980 (1956), the Court on its own initiative vacated an earlier order denying a petition for rehearing and, in the follow- ing Term, granted the previously denied petition. United States v. Ohio Power Co., 353 U. S. 98 (1957). While Justice Harlan dissented from that disposition, he did not disagree with the proposition that "the Court's inherent power over its judgments" included the authority to take action that "would otherwise be out of time under the Rules." Id., at 104. Just three years after the Ohio Power decision, Justice Harlan had occasion to endorse the exercise of a District Court's use of its inherent powers in apparent conflict with the language of the Federal Rules of Criminal Procedure. Explaining his denial of an application for bail, he correctly observed that those Rules should not be construed to with- draw the District Court's inherent power to revoke bail dur- ing the course of a criminal trial. See Fernandez v. United States, 81 S. Ct. 642, 644, n. 7, 5 L. Ed. 2d 683, 685, n. 7 (1961) (in chambers). In doing so, he exposed the basic flaw in an argument comparable to the one accepted by the Court today. Justice Harlan explained that even though Federal Rule of Criminal Procedure 46(a)(1) stated that a " `person arrested for an offense not punishable by death shall be admitted to bail,' " that Rule did not purport to withdraw the district courts' "authority, as an incident of their inherent powers to manage the conduct of proceedings before them, to revoke bail during the course of a criminal trial, when such action is appropriate to the orderly progress of the trial and the fair administration of justice." Fernandez v. United States, 81 S. Ct., at 644, 645, n. 7, 5 L. Ed. 2d, at 685, n. 7, 686 (in chambers). He properly read the seemingly mandatory language of Rule 46(a)(1) against a pre-Rule legal back- 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT 452 CARLISLE v. UNITED STATES Stevens, J., dissenting ground that afforded district courts a greater measure of dis- cretion. Ibid.; see also United States v. Anguilo, 755 F. 2d 969, 972 (CA1 1985) (Breyer, J.). Given that Justice Harlan also authored Link, which holds that a procedural rule per- mitting a dismissal on motion does not preclude a dismissal without motion, I doubt that the majority's attempt to distin- guish Fernandez would have been persuasive to its author. Our decision in United States v. Smith, 331 U. S. 469 (1947), is consistent with our prior cases holding that permis- sive rules do not withdraw pre-existing inherent powers.10 Although the majority contends that Smith supports the in- ference that the draftsmen of Rule 29 intended to limit the court's authority to take action in response to a timely mo- tion by counsel, that case actually supports the proposition that the adoption of the Federal Rules of Criminal Procedure did not modify the pre-existing power of the district court to set aside an erroneous judgment while it retains jurisdiction of a case. The error committed by Judge Smith was his attempt to assert jurisdiction in a criminal case after the judgment of conviction had been affirmed on appeal and even after the defendant had started to serve his sentence. There was not even an arguable basis for suggesting that the judge then had jurisdiction to order a new trial. Id., at 474; see United States v. Mayer, 235 U. S. 55, 70 (1914).11 The only theory that might have justified his action was his lawyer's argu- ment that the Rules had expanded the District Court's juris- diction beyond the end of the term of court in which the trial 10 That is not to say that permissive rules establish inherent powers. For that reason, the majority's recitation of various permissive rules for which no analogous inherent power exists is quite beside the point. Ante, at 431­432. 11 As the Court pointed out in United States v. Smith, 331 U. S. 469 (1947), new trial orders are particularly problematic because they raise serious double jeopardy concerns. Of course, no such concerns are pres- ent here. 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 453 Stevens, J., dissenting had been conducted. This Court's reasons for holding that the Rules did not enlarge that jurisdiction equally support the proposition that they did not diminish that jurisdiction either. In fact, if one takes note of the extraordinary character of Judge Smith's attempt to set aside a conviction after it had been affirmed on appeal and after the defendant had been incarcerated for several months, it is easy to understand why Justice Jackson's opinion for the Court expressed concern that such action might give rise to an appearance of impro- priety, and therefore provided us with the dictum concerning possible ex parte approaches to the judge on which today's majority relies. The suggestion that that dictum has any relevance to the period between the return of the jury's ver- dict and the imposition of sentence is not only misplaced, but also represents a highly inappropriate comment on the integrity of the federal judiciary. Judge Smith's singularly bizarre action a half century ago provides no basis for either the inference or the rule that today's majority thinks the Smith opinion supports. See Arizona v. Manypenny, 672 F. 2d, at 765, n. 10 (explaining that "Smith cannot be applied indiscriminately outside of the particular factual context at issue there"). The decision in Smith was a correct application of the prin- ciple that should control the disposition of this case. There is a "power `inherent in every court of justice so long as it retains control of the subject matter and of the parties, to correct that which has been wrongfully done by virtue of its process.' " United States v. Morgan, 307 U. S., at 197. Of course, that power does not survive after the court's juris- diction of the subject matter has expired. It is surely sufficient, however, to enable the judge to refuse to impose sentence on a defendant when the record does not contain evidence of guilt. As a result, Rule 29(c) is best read to state the proper procedures for handling and filing defense motions for acquit- 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT 454 CARLISLE v. UNITED STATES Stevens, J., dissenting tals, but to leave unaddressed the court's authority to act on its own initiative.12 Such a construction comports with the sound historical and commonsense reasons for concluding that Congress would not likely have intended to require a district court to enter a judgment of conviction against a defendant whom it knows to be innocent.13 III A brief final word about the practical significance of to- day's holding. There is no real danger that district judges will be burdened by a flood of untimely motions. On the other hand, the possibility that an Act of God may preclude the timely filing of a meritorious motion cannot be denied. Because evidence of guilt is "absolutely vital to defendants," Wiborg, 163 U. S., at 658, that possibility, no matter how re- mote, is sufficient to justify a district court's inherent author- ity to avert the conviction of a legally innocent defendant despite the absence of a timely motion. Because there is no 12 For this reason, the Government's reliance on Rule 45 of the Federal Rules of Criminal Procedure is misplaced. Although Rule 45 generally permits a district court to hear an untimely motion if the defendant can demonstrate that excusable neglect caused the late filing, it specifically prohibits a district court from extending the time for "tak[ing] any action" under Rule 29. As I have explained, Rule 29(c) only addresses the rules that govern a defendant's postverdict acquittal motion; it does not address the district court's sua sponte postverdict acquittal power. Thus, while Rule 45 serves to make clear that district courts may not entertain defense motions for acquittal filed more than seven days after the jury's discharge, it speaks not at all to the court's inherent power to decline to enter a judgment of conviction sua sponte when the jury's verdict is not supported by legally sufficient evidence. 13 The majority contends that if we accept that district courts have the discretion to refuse to consider untimely motions for acquittal, then we must also accept that district courts have the discretion to convict defend- ants whom they know to be innocent. Ante, at 431. The imaginative suggestion that some district judges might choose to convict those they believe to be innocent surely does not justify the conclusion that other judges should be required to do so. 517US2$47I 02-07-99 17:26:51 PAGES OPINPGT Cite as: 517 U. S. 416 (1996) 455 Stevens, J., dissenting language in Rule 29 that purports to constrain the authority exercised in this case, I would reject the majority's interpre- tation of the Rule and adhere to the commonsense under- standing revealed by the Court's holding in Sisson. Accordingly, I respectfully dissent. 517US2$48Z 02-07-99 17:38:11 PAGES OPINPGT 456 OCTOBER TERM, 1995 Syllabus UNITED STATES v. ARMSTRONG et al. certiorari to the united states court of appeals for the ninth circuit No. 95­157. Argued February 26, 1996-Decided May 13, 1996 In response to their indictment on "crack" cocaine and other federal charges, respondents filed a motion for discovery or for dismissal, alleg- ing that they were selected for prosecution because they are black. The District Court granted the motion over the Government's argu- ment, among others, that there was no evidence or allegation that it had failed to prosecute nonblack defendants. When the Government indicated it would not comply with the discovery order, the court dis- missed the case. The en banc Ninth Circuit affirmed, holding that the proof requirements for a selective-prosecution claim do not compel a defendant to demonstrate that the Government has failed to prosecute others who are similarly situated. Held: For a defendant to be entitled to discovery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races. Pp. 461­471. (a) Contrary to respondents' contention, Federal Rule of Criminal Procedure 16, which governs discovery in criminal cases, does not sup- port the result reached by the Ninth Circuit in this case. Rule 16(a)(1)(C)-which, inter alia, requires the Government to permit dis- covery of documents that are "material to the preparation of the . . . defense" or "intended for use by the government as evidence in chief"- applies only to the preparation of the "defense" against the Govern- ment's case in chief, not to the preparation of selective-prosecution claims. This reading creates a perceptible symmetry between the types of documents referred to in the Rule. Moreover, its correctness is established beyond peradventure by Rule 16(a)(2), which, as relevant here, exempts from discovery the work product of Government attor- neys and agents made in connection with the case's investigation. Re- spondents' construction of "defense" as including selective-prosecution claims is implausible: It creates the anomaly of a defendant's being able to examine all Government work product under Rule 16(a)(1)(C), except that which is most pertinent, the work product in connection with his own case, under Rule 16(a)(2). Pp. 461­463. (b) Under the equal protection component of the Fifth Amendment's Due Process Clause, the decision whether to prosecute may not be based 517US2$48Z 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 457 Syllabus on an arbitrary classification such as race or religion. Oyler v. Boles, 368 U. S. 448, 456. In order to prove a selective-prosecution claim, the claimant must demonstrate that the prosecutorial policy had a discrimi- natory effect and was motivated by a discriminatory purpose. Ibid. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. Ah Sin v. Wittman, 198 U. S. 500. Batson v. Kentucky, 476 U. S. 79, and Hunter v. Underwood, 471 U. S. 222, distinguished. Although Ah Sin involved federal review of a state conviction, a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the Executive Branch of the Federal Government, the power to prosecute. Discovery imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. Assuming that discovery is available on an appropriate showing in aid of a selective-prosecution claim, see Wade v. United States, 504 U. S. 181, the justifications for a rigorous standard of proof for the elements of such a case thus require a correspondingly rigorous standard for discovery in aid of it. Thus, in order to establish entitlement to such discovery, a defendant must produce credible evi- dence that similarly situated defendants of other races could have been prosecuted, but were not. In this case, respondents have not met this required threshold. Pp. 463­471. 48 F. 3d 1508, reversed and remanded. Rehnquist, C. J., delivered the opinion of the Court, in which O'Con- nor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined, and in which Breyer, J., joined in part. Souter, J., post, p. 471, and Ginsburg, J., post, p. 471, filed concurring opinions. Breyer, J., filed an opinion concurring in part and concurring in the judgment, post, p. 471. Stevens, J., filed a dissenting opinion, post, p. 476. Solicitor General Days argued the cause for the United States. With him on the briefs were Acting Assistant At- torney General Keeney, Deputy Solicitor General Dreeben, Irving L. Gornstein, and Kathleen A. Felton. Barbara E. O'Connor, by appointment of the Court, 516 U. S. 1007, argued the cause for respondents. With her on the brief for respondents Martin et al. were Maria E. Stratton, Timothy C. Lannen, by appointment of the Court, 516 U. S. 1007, David Dudley, Bernard J. Rosen, and 517US2$48Z 02-07-99 17:38:11 PAGES OPINPGT 458 UNITED STATES v. ARMSTRONG Opinion of the Court Eric Schnapper. Joseph F. Walsh, by appointment of the Court, 516 U. S. 1007, filed a brief for respondent Rozelle.* Chief Justice Rehnquist delivered the opinion of the Court. In this case, we consider the showing necessary for a de- fendant to be entitled to discovery on a claim that the prose- cuting attorney singled him out for prosecution on the basis of his race. We conclude that respondents failed to satisfy the threshold showing: They failed to show that the Gov- ernment declined to prosecute similarly situated suspects of other races. In April 1992, respondents were indicted in the United States District Court for the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack) and conspiring to distribute the same, in violation of 21 U. S. C. §§ 841 and 846 (1988 ed. and Supp. IV), and federal firearms offenses. For three months prior to the indictment, agents of the Federal Bureau of Alcohol, Tobacco, and Firearms and the Narcotics Division of the Inglewood, California, Police Department had infiltrated a suspected crack distribution ring by using three confidential informants. On seven separate occasions dur- ing this period, the informants had bought a total of 124.3 grams of crack from respondents and witnessed respondents carrying firearms during the sales. The agents searched the hotel room in which the sales were transacted, arrested respondents Armstrong and Hampton in the room, and found *Briefs of amici curiae urging reversal were filed for the Criminal Jus- tice Legal Foundation by Kent F. Scheidegger; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for former law en- forcement officials and police organizations et al. by David Cole; for the National Association of Criminal Defense Lawyers by Judy Clarke and Nancy Hollander; and for the NAACP Legal Defense and Educational Fund, Inc., et al. by Elaine R. Jones, Theodore M. Shaw, George H. Ken- dall, and Steven R. Shapiro. 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 459 Opinion of the Court more crack and a loaded gun. The agents later arrested the other respondents as part of the ring. In response to the indictment, respondents filed a motion for discovery or for dismissal of the indictment, alleging that they were selected for federal prosecution because they are black. In support of their motion, they offered only an affidavit by a "Paralegal Specialist," employed by the Office of the Federal Public Defender representing one of the re- spondents. The only allegation in the affidavit was that, in every one of the 24 § 841 or § 846 cases closed by the office during 1991, the defendant was black. Accompanying the affidavit was a "study" listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case.1 The Government opposed the discovery motion, arguing, among other things, that there was no evidence or allegation "that the Government has acted unfairly or has prosecuted non-black defendants or failed to prosecute them." App. 150. The District Court granted the motion. It ordered the Government (1) to provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, (2) to identify the race of the defend- ants in those cases, (3) to identify what levels of law enforce- ment were involved in the investigations of those cases, and (4) to explain its criteria for deciding to prosecute those defendants for federal cocaine offenses. Id., at 161­162. The Government moved for reconsideration of the District Court's discovery order. With this motion it submitted af- 1 Other defendants had introduced this study in support of similar dis- covery motions in at least two other Central District cocaine prosecutions. App. 83. Both motions were denied. One District Judge explained from the bench that the 23-person sample before him was "statistically insig- nificant," and that the evidence did not indicate "whether there is a bias in the distribution of crime that says black people use crack cocaine, his- panic people use powdered cocaine, caucasian people use whatever it is they use." Id., at 119, 120. 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT 460 UNITED STATES v. ARMSTRONG Opinion of the Court fidavits and other evidence to explain why it had chosen to prosecute respondents and why respondents' study did not support the inference that the Government was singling out blacks for cocaine prosecution. The federal and local agents participating in the case alleged in affidavits that race played no role in their investigation. An Assistant United States Attorney explained in an affidavit that the decision to prose- cute met the general criteria for prosecution, because "there was over 100 grams of cocaine base involved, over twice the threshold necessary for a ten year manda- tory minimum sentence; there were multiple sales in- volving multiple defendants, thereby indicating a fairly substantial crack cocaine ring; . . . there were multiple federal firearms violations intertwined with the narcot- ics trafficking; the overall evidence in the case was ex- tremely strong, including audio and videotapes of de- fendants; . . . and several of the defendants had criminal histories including narcotics and firearms violations." Id., at 81. The Government also submitted sections of a published 1989 Drug Enforcement Administration report which concluded that "[l]arge-scale, interstate trafficking networks controlled by Jamaicans, Haitians and Black street gangs dominate the manufacture and distribution of crack." J. Featherly & E. Hill, Crack Cocaine Overview 1989; App. 103. In response, one of respondents' attorneys submitted an affidavit alleging that an intake coordinator at a drug treat- ment center had told her that there are "an equal number of caucasian users and dealers to minority users and dealers." Id., at 138. Respondents also submitted an affidavit from a criminal defense attorney alleging that in his experience many nonblacks are prosecuted in state court for crack of- fenses, id., at 141, and a newspaper article reporting that federal "crack criminals . . . are being punished far more severely than if they had been caught with powder cocaine, 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 461 Opinion of the Court and almost every single one of them is black," Newton, Harsher Crack Sentences Criticized as Racial Inequity, Los Angeles Times, Nov. 23, 1992, p. 1; App. 208­210. The District Court denied the motion for reconsideration. When the Government indicated it would not comply with the court's discovery order, the court dismissed the case.2 A divided three-judge panel of the Court of Appeals for the Ninth Circuit reversed, holding that, because of the proof requirements for a selective-prosecution claim, defendants must "provide a colorable basis for believing that `others similarly situated have not been prosecuted' " to obtain dis- covery. 21 F. 3d 1431, 1436 (1994) (quoting United States v. Wayte, 710 F. 2d 1385, 1387 (CA9 1983), aff'd, 470 U. S. 598 (1985)). The Court of Appeals voted to rehear the case en banc, and the en banc panel affirmed the District Court's order of dismissal, holding that "a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated." 48 F. 3d 1508, 1516 (1995) (emphasis deleted). We granted certiorari to deter- mine the appropriate standard for discovery for a selective- prosecution claim. 516 U. S. 942 (1995). Neither the District Court nor the Court of Appeals men- tioned Federal Rule of Criminal Procedure 16, which by its terms governs discovery in criminal cases. Both parties now discuss the Rule in their briefs, and respondents con- tend that it supports the result reached by the Court of Appeals. Rule 16 provides, in pertinent part: "Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, 2 We have never determined whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of his race. Here, "it was the government itself that suggested dismissal of the indict- ments to the district court so that an appeal might lie." 48 F. 3d 1508, 1510 (CA9 1995). 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT 462 UNITED STATES v. ARMSTRONG Opinion of the Court buildings or places, or copies or portions thereof, which are within the possession, custody or control of the gov- ernment, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." Fed. Rule Crim. Proc. 16(a)(1)(C). Respondents argue that documents "within the possession . . . of the government" that discuss the Government's prose- cution strategy for cocaine cases are "material" to respond- ents' selective-prosecution claim. Respondents argue that the Rule applies because any claim that "results in noncon- viction" if successful is a "defense" for the Rule's purposes, and a successful selective-prosecution claim has that effect. Tr. of Oral Arg. 30. We reject this argument, because we conclude that in the context of Rule 16 "the defendant's defense" means the de- fendant's response to the Government's case in chief. While it might be argued that as a general matter, the concept of a "defense" includes any claim that is a "sword," challenging the prosecution's conduct of the case, the term may encom- pass only the narrower class of "shield" claims, which refute the Government's arguments that the defendant committed the crime charged. Rule 16(a)(1)(C) tends to support the "shield-only" reading. If "defense" means an argument in response to the prosecution's case in chief, there is a percep- tible symmetry between documents "material to the prepa- ration of the defendant's defense," and, in the very next phrase, documents "intended for use by the government as evidence in chief at the trial." If this symmetry were not persuasive enough, subdivision (a)(2) of Rule 16 establishes beyond peradventure that "de- fense" in subdivision (a)(1)(C) can refer only to defenses in response to the Government's case in chief. Rule 16(a)(2), as relevant here, exempts from defense inspection "reports, memoranda, or other internal government documents made 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 463 Opinion of the Court by the attorney for the government or other government agents in connection with the investigation or prosecution of the case." Under Rule 16(a)(1)(C), a defendant may examine docu- ments material to his defense, but, under Rule 16(a)(2), he may not examine Government work product in connec- tion with his case. If a selective-prosecution claim is a "defense," Rule 16(a)(1)(C) gives the defendant the right to examine Government work product in every prosecution except his own. Because respondents' construction of "defense" creates the anomaly of a defendant's being able to examine all Government work product except the most pertinent, we find their construction implausible. We hold that Rule 16(a)(1)(C) authorizes defendants to examine Gov- ernment documents material to the preparation of their de- fense against the Government's case in chief, but not to the preparation of selective-prosecution claims. In Wade v. United States, 504 U. S. 181 (1992), we consid- ered whether a federal court may review a Government deci- sion not to file a motion to reduce a defendant's sentence for substantial assistance to the prosecution, to determine whether the Government based its decision on the defend- ant's race or religion. In holding that such a decision was reviewable, we assumed that discovery would be available if the defendant could make the appropriate threshold show- ing, although we concluded that the defendant in that case did not make such a showing. See id., at 186. We proceed on a like assumption here. A selective-prosecution claim is not a defense on the mer- its to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons for- bidden by the Constitution. Our cases delineating the nec- essary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a de- manding one. These cases afford a "background presump- tion," cf. United States v. Mezzanatto, 513 U. S. 196, 203 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT 464 UNITED STATES v. ARMSTRONG Opinion of the Court (1995), that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstan- tial claims. A selective-prosecution claim asks a court to exercise judi- cial power over a "special province" of the Executive. Heck- ler v. Chaney, 470 U. S. 821, 832 (1985). The Attorney Gen- eral and United States Attorneys retain " `broad discretion' " to enforce the Nation's criminal laws. Wayte v. United States, 470 U. S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U. S. 368, 380, n. 11 (1982)). They have this latitude because they are designated by statute as the Presi- dent's delegates to help him discharge his constitutional re- sponsibility to "take Care that the Laws be faithfully exe- cuted." U. S. Const., Art. II, § 3; see 28 U. S. C. §§ 516, 547. As a result, "[t]he presumption of regularity supports" their prosecutorial decisions and, "in the absence of clear evidence to the contrary, courts presume that they have properly dis- charged their official duties." United States v. Chemical Foundation, Inc., 272 U. S. 1, 14­15 (1926). In the ordinary case, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978). Of course, a prosecutor's discretion is "subject to constitu- tional constraints." United States v. Batchelder, 442 U. S. 114, 125 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), is that the decision whether to prosecute may not be based on "an unjustifiable standard such as race, religion, or other arbitrary classification," Oyler v. Boles, 368 U. S. 448, 456 (1962). A defendant may demonstrate that the adminis- tration of a criminal law is "directed so exclusively against a particular class of persons . . . with a mind so unequal and 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 465 Opinion of the Court oppressive" that the system of prosecution amounts to "a practical denial" of equal protection of the law. Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886). In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present "clear evidence to the contrary." Chemical Foun- dation, supra, at 14­15. We explained in Wayte why courts are "properly hesitant to examine the decision whether to prosecute." 470 U. S., at 608. Judicial deference to the de- cisions of these executive officers rests in part on an assess- ment of the relative competence of prosecutors and courts. "Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement pri- orities, and the case's relationship to the Government's over- all enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake." Id., at 607. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. "Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effective- ness by revealing the Government's enforcement policy." Ibid. The requirements for a selective-prosecution claim draw on "ordinary equal protection standards." Id., at 608. The claimant must demonstrate that the federal prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." Ibid.; accord, Oyler, supra, at 456. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. This requirement has been established in our case law since Ah Sin v. Wittman, 198 U. S. 500 (1905). Ah Sin, a subject of China, petitioned a California state court for a writ of habeas corpus, seeking discharge from imprisonment under a San Francisco County 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT 466 UNITED STATES v. ARMSTRONG Opinion of the Court ordinance prohibiting persons from setting up gambling tables in rooms barricaded to stop police from entering. Id., at 503. He alleged in his habeas petition "that the ordinance is enforced `solely and exclusively against persons of the Chi- nese race and not otherwise.' " Id., at 507. We rejected his contention that this averment made out a claim under the Equal Protection Clause, because it did not allege "that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against the ordinance than the Chinese as to whom it was not enforced." Id., at 507­508. The similarly situated requirement does not make a selective-prosecution claim impossible to prove. Twenty years before Ah Sin, we invalidated an ordinance, also adopted by San Francisco, that prohibited the operation of laundries in wooden buildings. Yick Wo, 118 U. S., at 374. The plaintiff in error successfully demonstrated that the ordinance was applied against Chinese nationals but not against other laundry-shop operators. The authorities had denied the applications of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the appli- cations of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings "under similar condi- tions." Ibid. We explained in Ah Sin why the similarly situated requirement is necessary: "No latitude of intention should be indulged in a case like this. There should be certainty to every intent. Plaintiff in error seeks to set aside a criminal law of the State, not on the ground that it is unconstitutional on its face, not that it is discriminatory in tendency and ulti- mate actual operation as the ordinance was which was passed on in the Yick Wo case, but that it was made so by the manner of its administration. This is a matter of proof, and no fact should be omitted to make it out completely, when the power of a Federal court is in- 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 467 Opinion of the Court voked to interfere with the course of criminal justice of a State." 198 U. S., at 508 (emphasis added). Although Ah Sin involved federal review of a state convic- tion, we think a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the Executive Branch of the Federal Government, the power to prosecute. Respondents urge that cases such as Batson v. Kentucky, 476 U. S. 79 (1986), and Hunter v. Underwood, 471 U. S. 222 (1985), cut against any absolute requirement that there be a showing of failure to prosecute similarly situated individuals. We disagree. In Hunter, we invalidated a state law disen- franchising persons convicted of crimes involving moral turpitude. Id., at 233. Our holding was consistent with ordinary equal protection principles, including the similarly situated requirement. There was convincing direct evi- dence that the State had enacted the provision for the pur- pose of disenfranchising blacks, id., at 229­231, and indisput- able evidence that the state law had a discriminatory effect on blacks as compared to similarly situated whites: Blacks were " `by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under' " the law in question, id., at 227 (quoting Underwood v. Hunter, 730 F. 2d 614, 620 (CA11 1984)). Hunter thus affords no support for respondents' position. In Batson, we considered "[t]he standards for assessing a prima facie case in the context of discriminatory selection of the venire" in a criminal trial. 476 U. S., at 96. We re- quired a criminal defendant to show "that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race" and that this fact, the po- tential for abuse inherent in a peremptory strike, and "any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Ibid. During jury selection, the entire res gestae take place in front of the trial 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT 468 UNITED STATES v. ARMSTRONG Opinion of the Court judge. Because the judge has before him the entire venire, he is well situated to detect whether a challenge to the seat- ing of one juror is part of a "pattern" of singling out mem- bers of a single race for peremptory challenges. See id., at 97. He is in a position to discern whether a challenge to a black juror has evidentiary significance; the significance may differ if the venire consists mostly of blacks or of whites. Similarly, if the defendant makes out a prima facie case, the prosecutor is called upon to justify only decisions made in the very case then before the court. See id., at 97­98. The trial judge need not review prosecutorial conduct in relation to other venires in other cases. Having reviewed the requirements to prove a selective- prosecution claim, we turn to the showing necessary to ob- tain discovery in support of such a claim. If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant's claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors' resources and may disclose the Government's prosecutorial strategy. The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim. The parties, and the Courts of Appeals which have consid- ered the requisite showing to establish entitlement to discov- ery, describe this showing with a variety of phrases, like "colorable basis," "substantial threshold showing," Tr. of Oral Arg. 5, "substantial and concrete basis," or "reasonable likelihood," Brief for Respondents Martin et al. 30. How- ever, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The Courts of Appeals "require some evidence tending to show the existence of the essential elements of the defense," dis- criminatory effect and discriminatory intent. United States v. Berrios, 501 F. 2d 1207, 1211 (CA2 1974). 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 469 Opinion of the Court In this case we consider what evidence constitutes "some evidence tending to show the existence" of the discrimina- tory effect element. The Court of Appeals held that a de- fendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant. 48 F. 3d, at 1516. We think it was mistaken in this view. The vast majority of the Courts of Appeals require the de- fendant to produce some evidence that similarly situated de- fendants of other races could have been prosecuted, but were not, and this requirement is consistent with our equal protec- tion case law. United States v. Parham, 16 F. 3d 844, 846­ 847 (CA8 1994); United States v. Fares, 978 F. 2d 52, 59­60 (CA2 1992); United States v. Peete, 919 F. 2d 1168, 1176 (CA6 1990); C. E. Carlson, Inc. v. SEC, 859 F. 2d 1429, 1437­1438 (CA10 1988); United States v. Greenwood, 796 F. 2d 49, 52­53 (CA4 1986); United States v. Mitchell, 778 F. 2d 1271, 1277 (CA7 1985). As the three-judge panel explained, " `[s]elec- tive prosecution' implies that a selection has taken place." 21 F. 3d, at 1436.3 The Court of Appeals reached its decision in part because it started "with the presumption that people of all races commit all types of crimes-not with the premise that any type of crime is the exclusive province of any particular ra- cial or ethnic group." 48 F. 3d, at 1516­1517. It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, United States Sentencing Comm'n, 1994 Annual Re- port 107 (Table 45); 93.4% of convicted LSD dealers were white, ibid.; and 91% of those convicted for pornography or prostitution were white, id., at 41 (Table 13). Presumptions 3 We reserve the question whether a defendant must satisfy the simi- larly situated requirement in a case "involving direct admissions by [prosecutors] of discriminatory purpose." Brief for United States 15. 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT 470 UNITED STATES v. ARMSTRONG Opinion of the Court at war with presumably reliable statistics have no proper place in the analysis of this issue. The Court of Appeals also expressed concern about the "evidentiary obstacles defendants face." 48 F. 3d, at 1514. But all of its sister Circuits that have confronted the issue have required that defendants produce some evidence of dif- ferential treatment of similarly situated members of other races or protected classes. In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents. For in- stance, respondents could have investigated whether simi- larly situated persons of other races were prosecuted by the State of California and were known to federal law enforce- ment officers, but were not prosecuted in federal court. We think the required threshold-a credible showing of differ- ent treatment of similarly situated persons-adequately bal- ances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution. In the case before us, respondents' "study" did not consti- tute "some evidence tending to show the existence of the essential elements of" a selective-prosecution claim. Ber- rios, supra, at 1211. The study failed to identify individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted. This omission was not remedied by respond- ents' evidence in opposition to the Government's motion for reconsideration. The newspaper article, which discussed the discriminatory effect of federal drug sentencing laws, was not relevant to an allegation of discrimination in de- cisions to prosecute. Respondents' affidavits, which re- counted one attorney's conversation with a drug treatment center employee and the experience of another attorney de- fending drug prosecutions in state court, recounted hearsay and reported personal conclusions based on anecdotal evi- dence. The judgment of the Court of Appeals is therefore 517US2$48h 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 471 Opinion of Breyer, J. reversed, and the case is remanded for proceedings consist- ent with this opinion. It is so ordered. Justice Souter, concurring. I join the Court's opinion, but in its discussion of Federal Rule of Criminal Procedure 16 only to the extent of its appli- cation to the issue in this case. Justice Ginsburg, concurring. I do not understand the Court to have created a "major limitation" on the scope of discovery available under Federal Rule of Criminal Procedure 16. See post, at 475 (Breyer, J., concurring in part and concurring in judgment). As I see it, the Court has decided a precise issue: whether the phrase "defendant's defense," as used in Rule 16(a)(1)(C), en- compasses allegations of selective prosecution. I agree with the Court, for reasons the opinion states, that subdivision (a)(1)(C) does not apply to selective prosecution claims. The Court was not called upon to decide here whether Rule 16(a)(1)(C) applies in any other context, for example, to af- firmative defenses unrelated to the merits. With the caveat that I do not read today's opinion as precedent foreclosing issues not tendered for review, I join the Court's opinion. Justice Breyer, concurring in part and concurring in the judgment. I write separately because, in my view, Federal Rule of Criminal Procedure 16 does not limit a defendant's discov- ery rights to documents related to the Government's case in chief. Ante, at 462­463. The Rule says that "the govern- ment shall permit the defendant to inspect and copy" certain physical items (I shall summarily call them "documents") "which are material to the preparation of the defendant's de- fense." Fed. Rule Crim. Proc. 16(a)(1)(C). A "defendant's defense" can take many forms, including (1) a simple re- 517US2$48Q 02-07-99 17:38:11 PAGES OPINPGT 472 UNITED STATES v. ARMSTRONG Opinion of Breyer, J. sponse to the Government's case in chief, (2) an affirmative defense unrelated to the merits (such as a Speedy Trial Act claim), (3) an unrelated claim of constitutional right, (4) a foreseeable surrebuttal to a likely Government rebuttal, and others. The Rule's language does not limit its scope to the first item on this list. To interpret the Rule in this limited way creates a legal distinction that, from a discovery per- spective, is arbitrary. It threatens to create two full parallel sets of criminal discovery principles. And, as far as I can tell, the interpretation lacks legal support. The Court bases its interpretation upon what it says is a "perceptible symmetry," ante, at 462, between two phrases in Rule 16(a)(1)(C)-the phrase "material to the preparation of the defendant's defense," and the next phrase, "intended for use by the government as evidence in chief at the trial." To test the Court's argument, consider these two phrases in context. The Rule says: "Upon request of the defendant the government shall permit the defendant to inspect and copy [documents and other items] . . . which [1] are material to the prepa- ration of the defendant's defense or [2] are intended for use by the government as evidence in chief at the trial, or [3] were obtained from or belong to the defendant." Fed. Rule Crim. Proc. 16(a)(1)(C). Though symmetry may reside in the eye of the beholder, I can find no relevant symmetry here. Rather, the language suggests a simple three-part categorization of the documents and other physical items that the Rule requires the Govern- ment to make available to the defendant. From a purely linguistic perspective, there is no more reason to import into the first category a case-in-chief-related limitation (from the second category) than some kind of defendant's-belongings- related limitation (from the third category). Rule 16 creates these three categories for a reason that belies "symmetry"-namely, to specify two sets of items (the 517US2$48Q 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 473 Opinion of Breyer, J. Government's case in chief evidence, the defendant's belong- ings) that the Government must make available to the defendant without a preliminary showing of "materiality." The Rule's first category creates a residual classification (items "material to the preparation of the defendant's de- fense") that require a preliminary "materiality" showing. The Committee thought, however, that "[l]imiting the rule to situations in which the defendant can show that the evi- dence is material seems unwise. . . . For this reason subdivi- sion (a)(1)(C) also contains language to compel disclosure if the government intends to use the property as evidence at the trial or if the property was obtained from or belongs to the defendant." Advisory Committee's Notes on Fed. Rule Crim. Proc. 16, 18 U. S. C. App., p. 762 (second and third cate- gories added to specify that, without a special showing of materiality, certain items are almost always "material") (citing 1 C. Wright, Federal Practice and Procedure § 254, p. 510, n. 58, p. 513, n. 70 (1969)). Nothing in the Notes, or in the Rule's language, suggests that the residual category of items "material to the preparation of the defendant's defense," means to cover only those items related to the case in chief. The only other reason the majority advances in support of its "case in chief" limitation concerns a later part of the Rule, subdivision 16(a)(2). As relevant here, that subdivision ex- empts Government attorney work product from certain of Rule 16's disclosure requirements. In the majority's view, since (1) a defendant asserting a valid "selective prosecution" defense would likely need prosecution work product to make his case, but (2) the Rule exempts prosecution work product from discovery, then (3) the Rule must have some kind of implicit limitation (such as a "case in chief" limitation) that makes it irrelevant to defense efforts to assert "selective prosecution" defenses. The majority's conclusion, however, does not follow from its premises. For one thing, Rule 16's work-product excep- 517US2$48Q 02-07-99 17:38:11 PAGES OPINPGT 474 UNITED STATES v. ARMSTRONG Opinion of Breyer, J. tion may itself contain implicit exceptions. After all, "[t]he privilege derived from the work-product doctrine is not ab- solute." United States v. Nobles, 422 U. S. 225, 239 (1975); see also 8 C. Wright, A. Miller, & R. Marcus, Federal Prac- tice and Procedure § 2022, p. 324 (2d ed. 1994) (in civil con- text, work product "is discoverable only on a substantial showing of `necessity or justification' ") (quoting Hickman v. Taylor, 329 U. S. 495, 510 (1947)); J. Ghent, Development, Since Hickman v. Taylor, of Attorney's "Work Product" Doc- trine, 35 A. L. R. 3d 412, 465­469, § 25 (1971) (in civil context, work-product protection is not absolute, but is a "qualified privilege or immunity"). To the extent such a reading per- mits a defendant to obtain "work product" in an appropriate case (say, with a strong prima facie showing of selective prosecution), the Court's problem does not exist. Of course, to read the work-product exception as containing some such implicit exception itself represents a departure from the Rule's literal language. But, is it not far easier to believe the Rule's authors intended some such small implicit ex- ception to an exception, consistent with the language and purpose of the Rule, than that they intended the very large exception created by the Court? For another thing, even if one reads the work-product exception literally, the Court's problem disappears as long as courts can supplement Rule 16 discovery with discovery based upon other legal principles. The language of the work-product exception suggests the possibility of such sup- plementation, for it says, not that work product is "exemp[t]" from discovery, ante, at 462, but that "this rule" does not authorize discovery of the prosecutor's work product. Fed. Rule Civ. Proc. 16(a)(2). The Advisory Committee's Notes make clear that the Committee believed that other rules of law may authorize (or require) discovery not mentioned in the Rule. See, e. g., Advisory Committee's Notes on Rule 16, 18 U. S. C. App., pp. 762, 763 (discussion of Brady v. Maryland, 373 U. S. 83 (1963), which the Rule does not cod- 517US2$48Q 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 475 Opinion of Breyer, J. ify); 18 U. S. C. App., p. 761 ("[Rule 16] is intended to pre- scribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discre- tion to order broader discovery in appropriate cases"); see also 2 C. Wright, Federal Practice and Procedure § 254, p. 81, and n. 60 (2d ed. 1982) ("Because Brady is based on the Constitution, it overrides court-made rules of procedure. Thus the work-product immunity for discovery in Rule 16(a)(2) prohibits discovery under Rule 16 but it does not alter the prosecutor's duty to disclose material that is within Brady") (footnotes omitted). Of course, the majority, in a sense, reads the Rule as permitting supplementation, but it does more. It goes well beyond the added (say, constitution- ally related) rule supplementation needed to overcome its problem; instead, it shrinks the Rule by unnecessarily creat- ing a major limitation on its scope. Finally, and in any event, here the defendants sought dis- covery of information that is not work product. See ante, at 459. Thus, we need not decide whether in an appropriate case it would be necessary to find an implicit exception to the language of Rule 16(a)(2), or to find an independent constitutional source for the discovery, or to look for some other basis. In sum, neither the alleged "symmetry" in the structure of Rule 16(a)(1)(C), nor the work-product exception of Rule 16(a)(2), supports the majority's limitation of discovery under Rule 16(a)(1)(C) to documents related to the Government's "case in chief." Rather, the language and legislative history make clear that the Rule's drafters meant it to provide a broad authorization for defendants' discovery, to be supple- mented if necessary in an appropriate case. Whether or not one can also find a basis for this kind of discovery in other sources of law, Rule 16(a)(1)(C) provides one such source, and we should consider whether the defendants' discovery re- quest satisfied the Rule's requirement that the discovery be "material to the preparation of the defendant's defense." 517US2$48Q 02-07-99 17:38:11 PAGES OPINPGT 476 UNITED STATES v. ARMSTRONG Stevens, J., dissenting I believe that the defendants' request did not satisfy this threshold. Were the "selective prosecution" defense valid in this case-i. e., were there "clear evidence," United States v. Chemical Foundation, Inc., 272 U. S. 1, 14 (1926), that the Federal Government's prosecutorial policy "had a discrimi- natory effect and . . . was motivated by a discriminatory pur- pose," Wayte v. United States, 470 U. S. 598, 608 (1985), it should have been fairly easy for the defendants to find, not only instances in which the Federal Government prosecuted African-Americans, but also some instances in which the Federal Government did not prosecute similarly situated caucasians. The defendants' failure to do so, for the reasons the Court sets forth, amounts to a failure to make the nec- essary threshold showing in respect to materiality. See 2 C. Wright, Federal Practice and Procedure § 254, pp. 66­67 (2d ed. 1982); United States v. Balk, 706 F. 2d 1056, 1060 (CA9 1983); United States v. Johnson, 577 F. 2d 1304, 1309 (CA5 1978); United States v. Murdock, 548 F. 2d 599, 600 (CA5 1977). Justice Stevens, dissenting. Federal prosecutors are respected members of a respected profession. Despite an occasional misstep, the excellence of their work abundantly justifies the presumption that "they have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U. S. 1, 14­15 (1926). Nevertheless, the possibility that political or racial animosity may infect a decision to institute criminal proceedings cannot be ignored. Oyler v. Boles, 368 U. S. 448, 456 (1962). For that reason, it has long been settled that the prosecutor's broad discretion to determine when criminal charges should be filed is not completely unbridled. As the Court notes, however, the scope of judicial review of particular exercises of that discretion is not fully defined. See ante, at 469, n. 3. 517US2$48I 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 477 Stevens, J., dissenting The United States Attorney for the Central District of California is a member and an officer of the bar of that Dis- trict Court. As such, she has a duty to the judges of that Court to maintain the standards of the profession in the per- formance of her official functions. If a District Judge has reason to suspect that she, or a member of her staff, has singled out particular defendants for prosecution on the basis of their race, it is surely appropriate for the judge to deter- mine whether there is a factual basis for such a concern. I agree with the Court that Rule 16 of the Federal Rules of Criminal Procedure is not the source of the District Court's power to make the necessary inquiry. I disagree, however, with its implicit assumption that a different, relatively rigid rule needs to be crafted to regulate the use of this seldom- exercised inherent judicial power. See Advisory Commit- tee's Notes on Rule 16, 18 U. S. C. App., p. 761 (Rule 16 is "not intended to limit the judge's discretion to order broader discovery in appropriate cases"). The Court correctly concludes that in this case the facts presented to the District Court in support of respondents' claim that they had been singled out for prosecution because of their race were not sufficient to prove that defense. Moreover, I agree with the Court that their showing was not strong enough to give them a right to discovery, either under Rule 16 or under the District Court's inherent power to order discovery in appropriate circumstances. Like Chief Judge Wallace of the Court of Appeals, however, I am per- suaded that the District Judge did not abuse her discretion when she concluded that the factual showing was sufficiently disturbing to require some response from the United States Attorney's Office. See 48 F. 3d 1508, 1520­1521 (CA9 1995). Perhaps the discovery order was broader than necessary, but I cannot agree with the Court's apparent conclusion that no inquiry was permissible. The District Judge's order should be evaluated in light of three circumstances that underscore the need for judicial 517US2$48I 02-07-99 17:38:11 PAGES OPINPGT 478 UNITED STATES v. ARMSTRONG Stevens, J., dissenting vigilance over certain types of drug prosecutions. First, the Anti-Drug Abuse Act of 1986 and subsequent legislation es- tablished a regime of extremely high penalties for the pos- session and distribution of so-called "crack" cocaine.1 Those provisions treat one gram of crack as the equivalent of 100 grams of powder cocaine. The distribution of 50 grams of crack is thus punishable by the same mandatory minimum sentence of 10 years in prison that applies to the distribution of 5,000 grams of powder cocaine.2 The Sentencing Guide- lines extend this ratio to penalty levels above the mandatory minimums: For any given quantity of crack, the guideline range is the same as if the offense had involved 100 times that amount in powder cocaine.3 These penalties result in sentences for crack offenders that average three to eight times longer than sentences for comparable powder offend- ers.4 United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 145 (Feb. 1995) (hereinafter Special Report). 1 100 Stat. 3207, 21 U. S. C. § 841 et seq. 2 Compare 21 U. S. C. § 841(b)(1)(A)(iii) with § 841(b)(1)(A)(ii). Simi- larly, a mandatory 5-year sentence is prescribed for distribution of 500 grams of cocaine or 5 grams of crack. Compare § 841(b)(1)(B)(ii) with § 841(b)(1)(B)(iii). Simple possession of 5 grams of crack also produces a mandatory 5-year sentence. The maximum sentence for possession of any quantity of other drugs is one year. § 844(a). With one prior felony drug offense, the sentence for distribution of 50 grams of crack is a mandatory 20 years to life. § 841(b)(1)(A). With two prior felony drug offenses, the sentence is a mandatory life term without parole. Ibid. 3 See United States Sentencing Commission, Guidelines Manual § 2D1.1(c) (Nov. 1995) (USSG). 4 Under the Guidelines, penalties increase at a slower rate than drug quantities. For example, 5 grams of heroin result in a base offense level of 14 (15­21 months) while 10 grams of heroin (double the amount) result in an offense level of 16 (21­27 months). USSG §§ 2D1.1(c)(13), (12). Thus, the 100-to-1 ratio does not translate into sentences that are 100 times as long. 517US2$48I 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 479 Stevens, J., dissenting Second, the disparity between the treatment of crack co- caine and powder cocaine is matched by the disparity be- tween the severity of the punishment imposed by federal law and that imposed by state law for the same conduct. For a variety of reasons, often including the absence of mandatory minimums, the existence of parole, and lower baseline penal- ties, terms of imprisonment for drug offenses tend to be sub- stantially lower in state systems than in the federal system. The difference is especially marked in the case of crack of- fenses. The majority of States draw no distinction between types of cocaine in their penalty schemes; of those that do, none has established as stark a differential as the Federal Government. See id., at x, 129­138. For example, if re- spondent Hampton is found guilty, his federal sentence might be as long as a mandatory life term. Had he been tried in state court, his sentence could have been as short as 12 years, less worktime credits of half that amount.5 Finally, it is undisputed that the brunt of the elevated federal penalties falls heavily on blacks. While 65% of the persons who have used crack are white, in 1993 they 5 Hampton was charged with conspiracy to distribute, four counts of crack distribution, and the use or carrying of a firearm in relation to a drug crime. According to an information filed by the Government, Hamp- ton had three prior convictions for felony drug offenses. See Information Establishing Prior Felony Narcotics Convictions (June 24, 1992). There- fore, he potentially faces a mandatory life sentence on the drug charges alone. Under California law at the time of the offenses, possession for sale of cocaine base involving 50 grams carried a penalty of imprisonment for either three, four, or five years. Cal. Health & Safety Code Ann. § 11351.5 (West 1988). If the defendant had no prior convictions, he could be granted probation. § 11370. For each prior felony drug conviction, the defendant received an additional 3-year sentence. § 11370.2. Thus, with three priors and the possibility of worktime reductions, see Cal. Penal Code Ann. § 2933 (West Supp. 1996), Hampton could have served as little as six years under California law. Since the time of the offenses, Califor- nia has raised several of these penalties, but the new punishments could not be applied to respondents. 517US2$48I 02-07-99 17:38:11 PAGES OPINPGT 480 UNITED STATES v. ARMSTRONG Stevens, J., dissenting represented only 4% of the federal offenders convicted of trafficking in crack. Eighty-eight percent of such defend- ants were black. Id., at 39, 161. During the first 18 months of full guideline implementation, the sentencing disparity be- tween black and white defendants grew from preguideline levels: Blacks on average received sentences over 40% longer than whites. See Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 6­7 (Dec. 1993). Those figures represent a major threat to the integrity of federal sentencing reform, whose main purpose was the elimination of disparity (especially racial) in sentencing. The Sentencing Commission acknowledges that the height- ened crack penalties are a "primary cause of the growing disparity between sentences for Black and White federal defendants." Special Report 163. The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses. Evidence tending to prove that black de- fendants charged with distribution of crack in the Central District of California are prosecuted in federal court, whereas members of other races charged with similar of- fenses are prosecuted in state court, warrants close scrutiny by the federal judges in that district. In my view, the Dis- trict Judge, who has sat on both the federal and the state benches in Los Angeles, acted well within her discretion to call for the development of facts that would demonstrate what standards, if any, governed the choice of forum where similarly situated offenders are prosecuted. Respondents submitted a study showing that of all cases involving crack offenses that were closed by the Federal Public Defender's Office in 1991, 24 out of 24 involved black defendants. To supplement this evidence, they submitted affidavits from two of the attorneys in the defense team. The first reported a statement from an intake coordinator at a local drug treatment center that, in his experience, an 517US2$48I 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 481 Stevens, J., dissenting equal number of crack users and dealers were caucasian as belonged to minorities. App. 138. The second was from David R. Reed, counsel for respondent Armstrong. Reed was both an active court-appointed attorney in the Central District of California and one of the directors of the leading association of criminal defense lawyers who practice before the Los Angeles County courts. Reed stated that he did not recall "ever handling a [crack] cocaine case involving non-black defendants" in federal court, nor had he even heard of one. Id., at 140. He further stated that "[t]here are many crack cocaine sales cases prosecuted in state court that do involve racial groups other than blacks." Id., at 141 (emphasis in original). The majority discounts the probative value of the affida- vits, claiming that they recounted "hearsay" and reported "personal conclusions based on anecdotal evidence." Ante, at 470. But the Reed affidavit plainly contained more than mere hearsay; Reed offered information based on his own extensive experience in both federal and state courts. Given the breadth of his background, he was well qualified to compare the practices of federal and state prosecutors. In any event, the Government never objected to the admis- sion of either affidavit on hearsay or any other grounds. See 48 F. 3d, at 1518, n. 8. It was certainly within the District Court's discretion to credit the affidavits of two members of the bar of that Court, at least one of whom had presumably acquired a reputation by his frequent appearances there, and both of whose statements were made on pains of perjury. The criticism that the affidavits were based on "anecdotal evidence" is also unpersuasive. I thought it was agreed that defendants do not need to prepare sophisticated statistical studies in order to receive mere discovery in cases like this one. Certainly evidence based on a drug counselor's per- sonal observations or on an attorney's practice in two sets of courts, state and federal, can " `ten[d] to show the existence' " of a selective prosecution. Ante, at 468. 517US2$48I 02-07-99 17:38:11 PAGES OPINPGT 482 UNITED STATES v. ARMSTRONG Stevens, J., dissenting Even if respondents failed to carry their burden of show- ing that there were individuals who were not black but who could have been prosecuted in federal court for the same offenses, it does not follow that the District Court abused its discretion in ordering discovery. There can be no doubt that such individuals exist, and indeed the Government has never denied the same. In those circumstances, I fail to see why the District Court was unable to take judicial notice of this obvious fact and demand information from the Government's files to support or refute respondents' evidence. The pre- sumption that some whites are prosecuted in state court is not "contradicted" by the statistics the majority cites, which show only that high percentages of blacks are convicted of certain federal crimes, while high percentages of whites are convicted of other federal crimes. See ante, at 469­470. Those figures are entirely consistent with the allegation of selective prosecution. The relevant comparison, rather, would be with the percentages of blacks and whites who commit those crimes. But, as discussed above, in the case of crack far greater numbers of whites are believed guilty of using the substance. The District Court, therefore, was entitled to find the evidence before it significant and to re- quire some explanation from the Government.6 6 Also telling was the Government's response to respondents' eviden- tiary showing. It submitted a list of more than 3,500 defendants who had been charged with federal narcotics violations over the previous three years. It also offered the names of 11 nonblack defendants whom it had prosecuted for crack offenses. All 11, however, were members of other racial or ethnic minorities. See 48 F. 3d 1508, 1511 (CA9 1995). The District Court was authorized to draw adverse inferences from the Government's inability to produce a single example of a white defendant, especially when the very purpose of its exercise was to allay the court's concerns about the evidence of racially selective prosecutions. As an- other court has said: "Statistics are not, of course, the whole answer, but nothing is as emphatic as zero . . . ." United States v. Hinds County School Bd., 417 F. 2d 852, 858 (CA5 1969) (per curiam). 517US2$48I 02-07-99 17:38:11 PAGES OPINPGT Cite as: 517 U. S. 456 (1996) 483 Stevens, J., dissenting In sum, I agree with the Sentencing Commission that "[w]hile the exercise of discretion by prosecutors and investi- gators has an impact on sentences in almost all cases to some extent, because of the 100-to-1 quantity ratio and federal mandatory minimum penalties, discretionary decisions in cocaine cases often have dramatic effects." Special Report 138.7 The severity of the penalty heightens both the danger of arbitrary enforcement and the need for careful scrutiny of any colorable claim of discriminatory enforcement. Cf. McCleskey v. Kemp, 481 U. S. 279, 366 (1987) (Stevens, J., dissenting). In this case, the evidence was sufficiently dis- turbing to persuade the District Judge to order discovery that might help explain the conspicuous racial pattern of cases before her court. I cannot accept the majority's con- clusion that the District Judge either exceeded her power or abused her discretion when she did so. I therefore respect- fully dissent. 7 For this and other reasons, the Sentencing Commission in its Special Report to Congress "strongly recommend[ed] against a 100-to-1 quantity ratio." Special Report 198. The Commission shortly thereafter, by a 4-to-3 vote, amended the Guidelines so as to equalize the treatment of crack and other forms of cocaine, and proposed modification of the statu- tory mandatory minimum penalties for crack offenses. See Statement of Commission Majority in Support of Recommended Changes in Cocaine and Federal Sentencing Policy (May 1, 1995). In October 1995, Congress overrode the Sentencing Commission's Guideline amendments. See Pub. L. 104­38, 109 Stat. 334. Nevertheless, Congress at the same time di- rected the Commission to submit recommendations regarding changes to the statutory and guideline penalties for cocaine distribution, including specifically "revision of the drug quantity ratio of crack cocaine to powder cocaine." § 2(a). 517US2$49Z 02-04-99 19:52:11 PAGES OPINPGT 484 OCTOBER TERM, 1995 Syllabus 44 LIQUORMART, INC., et al. v. RHODE ISLAND et al. certiorari to the united states court of appeals for the first circuit No. 94­1140. Argued November 1, 1995-Decided May 13, 1996 Petitioners, a licensed Rhode Island liquor retailer and a licensed Massa- chusetts liquor retailer patronized by Rhode Island residents, filed this action seeking a declaratory judgment that Rhode Island laws banning the advertisement of retail liquor prices except at the place of sale vio- late the First Amendment. In concluding that the ban was unconstitu- tional because it did not directly advance the State's asserted interest in the promotion of temperance and was more extensive than necessary to serve that interest, the District Court reasoned that the party seek- ing to uphold a restriction on commercial speech carries the burden of justifying it and that the Twenty-first Amendment did not shift or di- minish that burden. In reversing, the Court of Appeals, inter alia, found "inherent merit" in the State's submission that competitive price advertising would ultimately increase sales, and agreed with it that the Twenty-first Amendment gave its advertising ban an added presump- tion of validity. Held: The judgment is reversed. 39 F. 3d 5, reversed. Justice Stevens delivered the opinion of the Court with respect to Parts I, II, VII, and VIII, concluding: 1. The Twenty-first Amendment cannot save Rhode Island's price advertising ban because that Amendment does not qualify the First Amendment's prohibition against laws abridging the freedom of speech. Although the Twenty-first Amendment-which repealed Prohibition and gave the States the power to prohibit commerce in, or the use of, alcoholic beverages-limits the dormant Commerce Clause's effect on a State's regulatory power over the delivery or use of liquor within its borders, the Amendment does not license the States to ignore their obligations under other constitutional provisions. See, e. g., Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 712. California v. LaRue, 409 U. S. 109, 118­119, disavowed. Because the First Amendment must be included among those other provisions, the Twenty-first Amend- ment does not shield the advertising ban from constitutional scrutiny. Pp. 514­516. 2. Because Rhode Island has failed to carry its heavy burden of justi- fying its complete ban on price advertising, that ban is invalid. P. 516. 517US2$49Z 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 485 Syllabus Justice Stevens delivered the principal opinion with respect to Parts III­VI, concluding that Rhode Island's ban on advertisements that provide the public with accurate information about retail liquor prices is an unconstitutional abridgment of the freedom of speech. Pp. 495­514. (a) Justice Stevens, joined by Justice Kennedy, Justice Sou- ter, and Justice Ginsburg, concluded in Part III that although the First Amendment protects the dissemination of truthful and nonmis- leading commercial messages about lawful products and services in order to ensure that consumers receive accurate information, see, e. g., Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 765, the special nature of commercial speech, includ- ing its "greater objectivity" and "greater hardiness," authorizes the State to regulate potentially deceptive or overreaching advertising more freely than other forms of protected speech, see, e. g., id., at 771­ 772, n. 24, and requires less than strict review of such regulations, Cen- tral Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 566, n. 9. However, regulations that entirely suppress com- mercial speech in order to pursue a policy not related to consumer pro- tection must be reviewed with "special care," and such blanket bans should not be approved unless the speech itself was flawed in some way, either because it was deceptive or related to unlawful activity. See ibid. Pp. 495­500. (b) Justice Stevens, joined by Justice Kennedy and Justice Ginsburg, concluded in Part IV that a review of the case law reveals that commercial speech regulations are not all subject to a similar form of constitutional review simply because they target a similar category of expression. When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the regula- tion's purpose is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review. However, where a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands. The special dangers that attend such complete bans-includ- ing, most obviously, the fact that they all but foreclose alternative chan- nels of communication-present sound reasons that justify more careful review. Pp. 501­504. (c) Justice Stevens, joined by Justice Kennedy, Justice Sou- ter, and Justice Ginsburg, concluded in Part V that because Rhode Island's advertising ban constitutes a blanket prohibition against truth- ful, nonmisleading speech about a lawful product, and serves an end 517US2$49Z 02-04-99 19:52:11 PAGES OPINPGT 486 44 LIQUORMART, INC. v. RHODE ISLAND Syllabus unrelated to consumer protection, it must be reviewed with "special care" under Central Hudson, 447 U. S., at 566, n. 9. It cannot survive that review because it does not satisfy even the less than strict standard that generally applies in commercial speech cases under Central Hud- son, id., at 566. First, the advertising ban does not directly advance the State's substantial interest in promoting temperance. See ibid. Because a commercial speech regulation may not be sustained if it pro- vides only ineffective or remote support for the government's purpose, id., at 564, the State bears the burden of showing not merely that its regulation will advance its interest, but also that it will do so "to a material degree," see, e. g., Edenfield v. Fane, 507 U. S. 761, 767. In this case, therefore, the State must show that the ban will significantly reduce alcohol consumption, but has presented no evidence to suggest a significant reduction. Second, the ban is more extensive than necessary to serve its stated interest, see 447 U. S., at 566, since alternative forms of regulation that would not involve any speech restrictions-e. g., the maintenance of higher prices either by direct regulation or by increased taxation, the rationing of per capita purchases, or the use of educational campaigns focused on drinking problems-would be more likely to achieve the goal of promoting temperance. Thus, the State has failed to establish the requisite "reasonable fit" between its regulation and its goal. See, e. g., Board of Trustees, State Univ. of N. Y. v. Fox, 492 U. S. 469, 480. Pp. 504­508. (d) Justice Stevens, joined by Justice Kennedy, Justice Thomas, and Justice Ginsburg, concluded in Part VI that the State's arguments in support of its claim that it merely exercised appropriate "legislative judgment" in determining that a price advertising ban would best promote temperance-i. e., (1) that because expert opinions as to the effectiveness of the ban "go both ways," the Court of Appeals correctly concluded that the ban constituted a "reasonable choice" by the legislature; (2) that precedent requires that particular deference be accorded that legislative choice because the State could, if it chose, ban the sale of alcoholic beverages outright; and (3) that deference is appro- priate because alcoholic beverages are so-called "vice" products-must be rejected. See Rubin, 514 U. S., at 482­483, n. 2. United States v. Edge Broadcasting, 509 U. S. 418, distinguished; Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328, distinguished and disavowed in part. Pp. 508­514. Justice Scalia concluded that guidance as to what the First Amend- ment forbids, where the core offense of suppressing particular political ideas is not at issue, must be taken from the long accepted practices of the American people. See McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 375 (Scalia, J., dissenting). Since, however, the Court has before it no evidence as to state legislative practices regarding regula- 517US2$49Z 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 487 Syllabus tion of commercial speech when the First and Fourteenth Amendments were adopted, or even as to any national consensus on the subject later developed, he would simply adhere to the Court's existing jurispru- dence, which renders the Rhode Island regulation invalid. Pp. 517­518. Justice Thomas concluded that in cases such as this, in which the government's asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the Central Hudson balancing test should not be applied. Rather, such an "interest" is per se illegitimate, cf., e. g., Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 768­770, and can no more justify regulation of "commercial" speech than it can justify regulation of "noncommercial" speech. Pp. 518­528. Justice O'Connor, joined by The Chief Justice, Justice Souter, and Justice Breyer, agreed with the principal opinion that Rhode Island's prohibition on alcohol-price advertising is invalid and cannot be saved by the Twenty-first Amendment, but concluded that the First Amendment question must be resolved more narrowly by applying the test established in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 566. Assuming that the prohibition satisfies the test's first three prongs-i. e., that (1) the speech at issue concerns lawful activity and is not misleading, (2) the asserted govern- mental interest is substantial, and (3) the regulation directly advances the governmental interest-Rhode Island's regulation fails the final fourth prong because its ban is more extensive than necessary to serve its stated interest. Rhode Island justifies its ban on price advertising on the ground that the ban is intended to keep alcohol prices high as a way to keep consumption low. In order for a speech restriction to pass muster under the fourth prong, there must be a reasonable fit between the legislature's goal and method. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480. The fit here is not reasonable, since the State has other methods at its disposal-e. g., establishing minimum prices and/or increasing sales taxes on alcoholic beverages-that would more directly accomplish its stated goal without intruding on sellers' ability to provide truthful, nonmisleading information to customers. Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328, 341­344, distinguished. The principal opinion errs in adopting a new analysis for the evaluation of commercial speech regulation. Pp. 528­534. Stevens, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, and VII, in which Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined, the opinion of the Court with respect to Part VIII, in which Scalia, Kennedy, Souter, and Ginsburg, JJ., joined, an opinion with respect to Parts III and V, in 517US2$49Z 02-04-99 19:52:11 PAGES OPINPGT 488 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of the Court which Kennedy, Souter, and Ginsburg, JJ., joined, an opinion with re- spect to Part VI, in which Kennedy, Thomas, and Ginsburg, JJ., joined, and an opinion with respect to Part IV, in which Kennedy and Ginsburg, JJ., joined. Scalia, J., post, p. 517, and Thomas, J., post, p. 518, filed opinions concurring in part and concurring in the judgment. O'Connor, J., filed an opinion concurring in the judgment, in which Rehnquist, C. J., and Souter and Breyer, JJ., joined, post, p. 528. Evan T. Lawson argued the cause and filed briefs for petitioners. Rebecca Tedford Partington, Special Assistant Attorney General, argued the cause and filed a brief for respondent State of Rhode Island. Lauren E. Jones, Caroline Cole Cornwell, William P. Gasbarro, and Robert M. Brady filed a brief for respondent Rhode Island Liquor Stores Association.* Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, VII, and VIII, an opinion with respect to Parts III and V, in which Justice Kennedy, Justice Souter, and *Briefs of amici curiae urging reversal were filed for the American Advertising Federation et al. by Richard E. Wiley, Andrew Krulwich, Howard H. Bell, Daniel E. Troy, John F. Kamp, David S. Versfelt, Slade Metcalf, and Robert L. Sherman; for the American Civil Liberties Union et al. by Marjorie Heins and Steven R. Shapiro; for the Association of National Advertisers, Inc., et al. by Burt Neuborne, Gilbert H. Weil, Val- erie Schulte, and John F. Kamp; for the Beer Institute et al. by John J. Walsh, Steven G. Brody, and Mary Elizabeth Taylor; for the Institute for Justice by William H. Mellor III and Clint Bolick; and for the Washing- ton Legal Foundation et al. by Daniel J. Popeo, Paul D. Kamenar, and Martin H. Redish. Briefs of amici curiae urging affirmance were filed for the Council of State Governments et al. by Richard Ruda and Lee Fennell; and for the Malt Beverage Distributors Association of Pennsylvania. P. Cameron DeVore, John F. Sturm, Rene´ P. Milam, Ralph P. Huber, Jerry S. Birenz, Andrew A. Merdek, Jonathan E. Thackeray, and George Freeman filed a brief for the Newspaper Association of America et al. as amici curiae. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 489 Opinion of the Court Justice Ginsburg join, an opinion with respect to Part VI, in which Justice Kennedy, Justice Thomas, and Justice Ginsburg join, and an opinion with respect to Part IV, in which Justice Kennedy and Justice Ginsburg join. Last Term we held that a federal law abridging a brewer's right to provide the public with accurate information about the alcoholic content of malt beverages is unconstitutional. Rubin v. Coors Brewing Co., 514 U. S. 476, 491 (1995). We now hold that Rhode Island's statutory prohibition against advertisements that provide the public with accurate infor- mation about retail prices of alcoholic beverages is also in- valid. Our holding rests on the conclusion that such an ad- vertising ban is an abridgment of speech protected by the First Amendment and that it is not shielded from constitu- tional scrutiny by the Twenty-first Amendment.1 I In 1956, the Rhode Island Legislature enacted two sepa- rate prohibitions against advertising the retail price of alco- holic beverages. The first applies to vendors licensed in Rhode Island as well as to out-of-state manufacturers, whole- salers, and shippers. It prohibits them from "advertising in any manner whatsoever" the price of any alcoholic beverage offered for sale in the State; the only exception is for price tags or signs displayed with the merchandise within licensed premises and not visible from the street.2 The second stat- 1 Although the text of the First Amendment states that "Congress shall make no law . . . abridging the freedom of speech, or of the press," the Amendment applies to the States under the Due Process Clause of the Fourteenth Amendment. See Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853, 855, n. 1 (1982); Grosjean v. American Press Co., 297 U. S. 233, 244 (1936); Gitlow v. New York, 268 U. S. 652, 666 (1925). 2 Rhode Island Gen. Laws § 3­8­7 (1987) provides: "Advertising price of malt beverages, cordials, wine or distilled liquor.- No manufacturer, wholesaler, or shipper from without this state and no holder of a license issued under the provisions of this title and chapter 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 490 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of the Court ute applies to the Rhode Island news media. It contains a categorical prohibition against the publication or broadcast of any advertisements-even those referring to sales in other States-that "make reference to the price of any alco- holic beverages." 3 In two cases decided in 1985, the Rhode Island Supreme Court reviewed the constitutionality of these two statutes. In S&S Liquor Mart, Inc. v. Pastore, 497 A. 2d 729, a liquor retailer located in Westerly, Rhode Island, a town that bor- ders the State of Connecticut, having been advised that his license would be revoked if he advertised his prices in a Con- necticut paper, sought to enjoin enforcement of the first stat- ute. Over the dissent of one justice, the court upheld the statute. It concluded that the statute served the substantial state interest in " `the promotion of temperance.' " 4 Id., at shall cause or permit the advertising in any manner whatsoever of the price of any malt beverage, cordials, wine or distilled liquor offered for sale in this state; provided, however, that the provisions of this section shall not apply to price signs or tags attached to or placed on merchandise for sale within the licensed premises in accordance with rules and regula- tions of the department." Regulation 32 of the Rules and Regulations of the Liquor Control Administrator provides that no placard or sign that is visible from the exterior of a package store may make any reference to the price of any alcoholic beverage. App. 2 to Brief for Petitioners. 3 Rhode Island Gen. Laws § 3­8­8.1 (1987) provides: "Price advertising by media or advertising companies unlawful.-No newspaper, periodical, radio or television broadcaster or broadcasting company or any other person, firm or corporation with a principal place of business in the state of Rhode Island which is engaged in the business of advertising or selling advertising time or space shall accept, publish, or broadcast any advertisement in this state of the price or make reference to the price of any alcoholic beverages. Any person who shall violate any of the provisions of this section shall be guilty of a misdemeanor . . . ." The statute authorizes the liquor control administrator to exempt trade journals from its coverage. Ibid. 4 "We also have little difficulty in finding that the asserted governmental interests, herein described as the promotion of temperance and the reason- able control of the traffic in alcoholic beverages, are substantial. We note, 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 491 Opinion of the Court 737. Because the plaintiff failed to prove that the statute did not serve that interest, the court held that he had not carried his burden of establishing a violation of the First Amendment. In response to the dissent's argument that the court had placed the burden on the wrong party, the majority reasoned that the Twenty-first Amendment gave the statute " `an added presumption [of] validity.' " Id., at 732. Al- though that presumption had not been overcome in that case, the State Supreme Court assumed that in a future case the record might "support the proposition that these advertising restrictions do not further temperance objectives." Id., at 734. In Rhode Island Liquor Stores Assn. v. Evening Call Pub. Co., 497 A. 2d 331, the plaintiff association 5 sought to enjoin the publisher of the local newspaper in Woonsocket, Rhode Island, from accepting advertisements disclosing the retail price of alcoholic beverages being sold across the state line in Millville, Massachusetts. In upholding the injunction, the parenthetically, that the word `temperance' is oftentimes mistaken as a synonym for `abstinence.' It is not. Webster's Third New International Dictionary (1961) defines `temperance' as `moderation in or abstinence from the use of intoxicating drink.' The Rhode Island Legislature has the authority, derived from the state's inherent police power, to enact a variety of laws designed to suppress intemperance or to minimize the ac- knowledged evils of liquor traffic. Thus, there can be no question that these asserted interests are indeed substantial. Oklahoma Telecasters Association v. Crisp, 699 F. 2d at 500." S&S Liquor Mart, Inc. v. Pas- tore, 497 A. 2d, at 733­734. In her dissent in Rhode Island Liquor Stores Assn. v. Evening Call Pub. Co., 497 A. 2d 331 (R. I. 1985), Justice Murray suggested that the advertising ban was motivated, at least in part, by an interest in protect- ing small retailers from price competition. Id., at 342, n. 10. This sug- gestion is consistent with the position taken by respondent Rhode Island Liquor Stores Association in this case. We, however, accept the State Supreme Court's identification of the relevant state interest served by the legislation. 5 The plaintiff in that case is a respondent in this case and has filed other actions enforcing the price advertising ban. See id., at 333. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 492 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of the Court State Supreme Court adhered to its reasoning in the Pastore case and rejected the argument that the statute neither "di- rectly advanced" the state interest in promoting temperance, nor was "more extensive than necessary to serve that inter- est" as required by this Court's decision in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 563 (1980). It assumed the existence of other, "perhaps more effective means" of achieving the State's "goal of tem- perance," but concluded that it was "not unreasonable for the State of Rhode Island to believe that price advertising will result in increased sales of alcoholic beverages generally." Rhode Island Liquor Stores Assn. v. Evening Call Pub. Co., 497 A. 2d, at 336. II Petitioners 44 Liquormart, Inc. (44 Liquormart), and Peoples Super Liquor Stores, Inc. (Peoples), are licensed retailers of alcoholic beverages. Petitioner 44 Liquormart operates a store in Rhode Island and petitioner Peoples oper- ates several stores in Massachusetts that are patronized by Rhode Island residents. Peoples uses alcohol price adver- tising extensively in Massachusetts, where such advertising is permitted, but Rhode Island newspapers and other media outlets have refused to accept such ads. Complaints from competitors about an advertisement placed by 44 Liquormart in a Rhode Island newspaper in 1991 generated enforcement proceedings that in turn led to the initiation of this litigation. The advertisement did not state the price of any alcoholic beverages. Indeed, it noted that "State law prohibits advertising liquor prices." The ad did, however, state the low prices at which peanuts, potato chips, and Schweppes mixers were being offered, identify various brands of packaged liquor, and include the word "WOW" in large letters next to pictures of vodka and rum bottles. Based on the conclusion that the implied reference to bargain prices for liquor violated the statutory ban on 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 493 Opinion of the Court price advertising, the Rhode Island Liquor Control Adminis- trator assessed a $400 fine. After paying the fine, 44 Liquormart, joined by Peoples, filed this action against the administrator in the Federal Dis- trict Court seeking a declaratory judgment that the two statutes and the administrator's implementing regulations violate the First Amendment and other provisions of federal law. The Rhode Island Liquor Stores Association was al- lowed to intervene as a defendant and in due course the State of Rhode Island replaced the administrator as the principal defendant. The parties stipulated that the price advertising ban is vigorously enforced, that Rhode Island permits "all advertising of alcoholic beverages excepting references to price outside the licensed premises," and that petitioners' proposed ads do not concern an illegal activity and presumably would not be false or misleading. 44 Liquor Mart, Inc. v. Racine, 829 F. Supp. 543, 545 (RI 1993). The parties disagreed, however, about the impact of the ban on the promotion of temperance in Rhode Island. On that question the District Court heard conflicting expert testi- mony and reviewed a number of studies. In his findings of fact, the District Judge first noted that there was a pronounced lack of unanimity among researchers who have studied the impact of advertising on the level of consumption of alcoholic beverages. He referred to a 1985 Federal Trade Commission study that found no evidence that alcohol advertising significantly affects alcohol abuse. An- other study indicated that Rhode Island ranks in the upper 30% of States in per capita consumption of alcoholic bever- ages; alcohol consumption is lower in other States that allow price advertising. After summarizing the testimony of the expert witnesses for both parties, he found "as a fact that Rhode Island's off-premises liquor price advertising ban has no significant impact on levels of alcohol consumption in Rhode Island." Id., at 549. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 494 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of the Court As a matter of law, he concluded that the price advertising ban was unconstitutional because it did not "directly ad- vance" the State's interest in reducing alcohol consumption and was "more extensive than necessary to serve that inter- est." Id., at 555. He reasoned that the party seeking to uphold a restriction on commercial speech carries the burden of justifying it and that the Twenty-first Amendment did not shift or diminish that burden. Acknowledging that it might have been reasonable for the state legislature to "assume a correlation between the price advertising ban and reduced consumption," he held that more than a rational basis was required to justify the speech restriction, and that the State had failed to demonstrate a reasonable " `fit' " between its policy objectives and its chosen means. Ibid. The Court of Appeals reversed. 39 F. 3d 5 (CA1 1994). It found "inherent merit" in the State's submission that com- petitive price advertising would lower prices and that lower prices would produce more sales. Id., at 7. Moreover, it agreed with the reasoning of the Rhode Island Supreme Court that the Twenty-first Amendment gave the statutes an added presumption of validity. Id., at 8. Alternatively, it concluded that reversal was compelled by this Court's sum- mary action in Queensgate Investment Co. v. Liquor Control Comm'n of Ohio, 459 U. S. 807 (1982). See 39 F. 3d, at 8. In that case the Court dismissed the appeal from a decision of the Ohio Supreme Court upholding a prohibition against off-premises advertising of the prices of alcoholic beverages sold by the drink. See Queensgate Investment Co. v. Liquor Control Comm'n of Ohio, 69 Ohio St. 2d 361, 433 N. E. 2d 138 (1982). Queensgate has been both followed and distinguished in subsequent cases reviewing the validity of similar advertis- ing bans.6 We are now persuaded that the importance of 6 In Dunagin v. Oxford, 718 F. 2d 738 (1983), the Fifth Circuit dis- tinguished our summary action in Queensgate in considering the con- stitutionality of a sweeping state restriction on outdoor liquor adver- 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 495 Opinion of Stevens, J. the First Amendment issue, as well the suggested relevance of the Twenty-first Amendment, merits more thorough anal- ysis than it received when we refused to accept jurisdiction of the Queensgate appeal. We therefore granted certiorari. 514 U. S. 1095 (1995). III Advertising has been a part of our culture throughout our history. Even in colonial days, the public relied on "com- mercial speech" for vital information about the market. Early newspapers displayed advertisements for goods and services on their front pages, and town criers called out prices in public squares. See J. Wood, The Story of Adver- tising 21, 45­69, 85 (1958); J. Smith, Printers and Press Free- dom 49 (1988). Indeed, commercial messages played such a central role in public life prior to the founding that Benjamin Franklin authored his early defense of a free press in sup- port of his decision to print, of all things, an advertisement for voyages to Barbados. Franklin, An Apology for Print- tising. The court explained that Queensgate did not control because it involved a far narrower alcohol advertising regulation. Id., at 745­746. By contrast, in Oklahoma Telecasters Assn. v. Crisp, 699 F. 2d 490, 495­ 497 (1983), rev'd on other grounds sub nom. Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 697 (1984), the Tenth Circuit relied on Queensgate in considering a prohibition against broadcasting alcohol advertisements. The Court of Appeals concluded that Queensgate stood for the proposition that the Twenty-first Amendment gives the State greater authority to regulate liquor advertising than the First Amendment would otherwise allow. 699 F. 2d, at 495­497. Other than the two Rhode Island Supreme Court decisions upholding the constitutionality of the statutes at issue in this case, only one published state court opinion has considered our summary action in Queensgate in passing on a liquor advertising restriction. See Michigan Beer & Wine Wholesalers Assn. v. Attorney General, 142 Mich. App. 294, 370 N. W. 2d 328 (1985). There, the Michigan Court of Appeals concluded that Queens- gate did not control because it involved a far narrower restriction on liquor advertising than the one that Michigan had imposed. 142 Mich. App., at 304­305, 370 N. W. 2d, at 333­335. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 496 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Stevens, J. ers, June 10, 1731, reprinted in 2 Writings of Benjamin Franklin 172 (1907). In accord with the role that commercial messages have long played, the law has developed to ensure that advertising provides consumers with accurate information about the availability of goods and services. In the early years, the common law, and later, statutes, served the consumers' inter- est in the receipt of accurate information in the commercial market by prohibiting fraudulent and misleading advertis- ing. It was not until the 1970's, however, that this Court held that the First Amendment protected the dissemination of truthful and nonmisleading commercial messages about lawful products and services. See generally Kozinski & Banner, The Anti-History and Pre-History of Commercial Speech, 71 Texas L. Rev. 747 (1993). In Bigelow v. Virginia, 421 U. S. 809 (1975), we held that it was error to assume that commercial speech was entitled to no First Amendment protection or that it was without value in the marketplace of ideas. Id., at 825­826. The following Term in Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), we expanded on our holding in Bigelow and held that the State's blanket ban on advertising the price of prescription drugs violated the First Amendment. Virginia Bd. of Pharmacy reflected the conclusion that the same interest that supports regulation of potentially mis- leading advertising, namely, the public's interest in receiving accurate commercial information, also supports an interpre- tation of the First Amendment that provides constitutional protection for the dissemination of accurate and nonmis- leading commercial messages. We explained: "Advertising, however tasteless and excessive it some- times may seem, is nonetheless dissemination of infor- mation as to who is producing and selling what product, for what reason, and at what price. So long as we pre- 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 497 Opinion of Stevens, J. serve a predominantly free enterprise economy, the allo- cation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indis- pensable." 425 U. S., at 765.7 The opinion further explained that a State's paternalistic assumption that the public will use truthful, nonmisleading commercial information unwisely cannot justify a decision to suppress it: "There is, of course, an alternative to this highly pa- ternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. If they are truly open, nothing prevents the `professional' pharmacist from marketing his own as- sertedly superior product, and contrasting it with that of the low-cost, high-volume prescription drug retailer. But the choice among these alternative approaches is not ours to make or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us." Id., at 770. On the basis of these principles, our early cases uniformly struck down several broadly based bans on truthful, nonmis- leading commercial speech, each of which served ends unre- 7 By contrast, the First Amendment does not protect commercial speech about unlawful activities. See Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U. S. 376 (1973). 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 498 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Stevens, J. lated to consumer protection.8 Indeed, one of those cases expressly likened the rationale that Virginia Bd. of Phar- macy employed to the one that Justice Brandeis adopted in his concurrence in Whitney v. California, 274 U. S. 357 (1927). See Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 97 (1977). There, Justice Brandeis wrote, in ex- plaining his objection to a prohibition of political speech, that "the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." Whit- ney, 274 U. S., at 377; see also Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977) (applying test for suppressing political speech set forth in Brandenburg v. Ohio, 395 U. S. 444, 447 (1969)). At the same time, our early cases recognized that the State may regulate some types of commercial advertising more freely than other forms of protected speech. Specifi- cally, we explained that the State may require commercial messages to "appear in such a form, or include such addi- tional information, warnings, and disclaimers, as are neces- sary to prevent its being deceptive," Virginia Bd. of Phar- macy, 425 U. S., at 772, n. 24, and that it may restrict some forms of aggressive sales practices that have the potential to exert "undue influence" over consumers, see Bates v. State Bar of Ariz., 433 U. S. 350, 366 (1977). Virginia Bd. of Pharmacy attributed the State's authority to impose these regulations in part to certain "commonsense 8 See Bates v. State Bar of Ariz., 433 U. S. 350, 355 (1977) (ban on lawyer advertising); Carey v. Population Services Int'l, 431 U. S. 678, 700 (1977) (ban on contraceptive advertising); Linmark Associates, Inc. v. Willing- boro, 431 U. S. 85, 92­94 (1977) (ban on "For Sale" signs); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976) (ban on prescription drug prices); Bigelow v. Virginia, 421 U. S. 809, 825 (1975) (ban on abortion advertising). Although Linmark involved a prohibition against a particular means of advertising the sale of one's home, we treated the restriction as if it were a complete ban because it did not leave open "satisfactory" alternative channels of communication. 431 U. S., at 92­94. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 499 Opinion of Stevens, J. differences" that exist between commercial messages and other types of protected expression. 425 U. S., at 771, n. 24. Our opinion noted that the greater "objectivity" of commer- cial speech justifies affording the State more freedom to dis- tinguish false commercial advertisements from true ones, ibid., and that the greater "hardiness" of commercial speech, inspired as it is by the profit motive, likely diminishes the chilling effect that may attend its regulation, ibid. Subsequent cases explained that the State's power to reg- ulate commercial transactions justifies its concomitant power to regulate commercial speech that is "linked inextricably" to those transactions. Friedman v. Rogers, 440 U. S. 1, 10, n. 9 (1979); Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456 (1978) (commercial speech "occurs in an area traditionally subject to government regulation"). As one commentator has explained: "The entire commercial speech doctrine, after all, represents an accommodation between the right to speak and hear expression about goods and services and the right of government to regulate the sales of such goods and serv- ices." L. Tribe, American Constitutional Law § 12­15, p. 903 (2d ed. 1988). Nevertheless, as we explained in Lin- mark, the State retains less regulatory authority when its commercial speech restrictions strike at "the substance of the information communicated" rather than the "commercial aspect of [it]-with offerors communicating offers to offer- ees." 431 U. S., at 96; Carey v. Population Services Int'l, 431 U. S., at 701, n. 28. In Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980), we took stock of our developing commercial speech jurisprudence. In that case, we considered a regulation "completely" banning all promo- tional advertising by electric utilities. Ibid. Our decision acknowledged the special features of commercial speech but identified the serious First Amendment concerns that attend blanket advertising prohibitions that do not protect consum- ers from commercial harms. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 500 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Stevens, J. Five Members of the Court recognized that the state in- terest in the conservation of energy was substantial, and that there was "an immediate connection between advertis- ing and demand for electricity." Id., at 569. Nevertheless, they concluded that the regulation was invalid because re- spondent commission had failed to make a showing that a more limited speech regulation would not have adequately served the State's interest. Id., at 571.9 In reaching its conclusion, the majority explained that al- though the special nature of commercial speech may require less than strict review of its regulation, special concerns arise from "regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy." Id., at 566, n. 9. In those circumstances, "a ban on speech could screen from public view the underlying governmental pol- icy." Ibid. As a result, the Court concluded that "special care" should attend the review of such blanket bans, and it pointedly remarked that "in recent years this Court has not approved a blanket ban on commercial speech unless the ex- pression itself was flawed in some way, either because it was deceptive or related to unlawful activity." Ibid.10 9 In other words, the regulation failed the fourth step in the four-part inquiry that the majority announced in its opinion. It wrote: "In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Central Hudson, 447 U. S., at 566. 10 The Justices concurring in the judgment adopted a somewhat broader view. They expressed "doubt whether suppression of information con- cerning the availability and price of a legally offered product is ever a permissible way for the State to `dampen' the demand for or use of the product." Id., at 574. Indeed, Justice Blackmun believed that even 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 501 Opinion of Stevens, J. IV As our review of the case law reveals, Rhode Island errs in concluding that all commercial speech regulations are sub- ject to a similar form of constitutional review simply because they target a similar category of expression. The mere fact that messages propose commercial transactions does not in and of itself dictate the constitutional analysis that should apply to decisions to suppress them. See Rubin v. Coors Brewing Co., 514 U. S., at 491­494 (Stevens, J., concurring in judgment). When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with the reasons for according constitutional protection to com- mercial speech and therefore justifies less than strict review. However, when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands. Sound reasons justify reviewing the latter type of com- mercial speech regulation more carefully. Most obviously, complete speech bans, unlike content-neutral restrictions on the time, place, or manner of expression, see Kovacs v. Cooper, 336 U. S. 77, 89 (1949), are particularly dangerous because they all but foreclose alternative means of dissemi- nating certain information. Our commercial speech cases have recognized the dangers that attend governmental attempts to single out certain messages for suppression. For example, in Linmark, 431 U. S., at 92­94, we concluded that a ban on "For Sale" signs "though `commercial' speech is involved, such a regulation strikes at the heart of the First Amendment." Ibid. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 502 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Stevens, J. was "content based" and failed to leave open "satisfactory" alternative channels of communication; see also Virginia Bd. of Pharmacy, 425 U. S., at 771. Moreover, last Term we upheld a 30-day prohibition against a certain form of legal solicitation largely because it left so many channels of com- munication open to Florida lawyers. Florida Bar v. Went For It, Inc., 515 U. S. 618, 633­634 (1995).11 The special dangers that attend complete bans on truthful, nonmisleading commercial speech cannot be explained away by appeals to the "commonsense distinctions" that exist be- tween commercial and noncommercial speech. Virginia Bd. of Pharmacy, 425 U. S., at 771, n. 24. Regulations that sup- press the truth are no less troubling because they target objectively verifiable information, nor are they less effective because they aim at durable messages. As a result, neither the "greater objectivity" nor the "greater hardiness" of truthful, nonmisleading commercial speech justifies review- ing its complete suppression with added deference. Ibid. It is the State's interest in protecting consumers from "commercial harms" that provides "the typical reason why commercial speech can be subject to greater governmental regulation than noncommercial speech." Cincinnati v. Dis- covery Network, Inc., 507 U. S. 410, 426 (1993). Yet bans 11 "Florida permits lawyers to advertise on prime-time television and radio as well as in newspapers and other media. They may rent space on billboards. They may send untargeted letters to the general population, or to discrete segments thereof. There are, of course, pages upon pages devoted to lawyers in the Yellow Pages of Florida telephone directories. These listings are organized alphabetically and by area of specialty. See generally Rule 4­7.2(a), Rules Regulating The Florida Bar (`[A] lawyer may advertise services through public media, such as a telephone direc- tory, legal directory, newspaper or other periodical, billboards, and other signs, radio, television, and recorded messages the public may access by dialing a telephone number, or through written communication not involv- ing solicitation as defined in rule 4­7.4'); The Florida Bar: Petition to Amend the Rules Regulating The Florida Bar-Advertising Issues, 571 So. 2d, at 461." 515 U. S., at 633­634. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 503 Opinion of Stevens, J. that target truthful, nonmisleading commercial messages rarely protect consumers from such harms.12 Instead, such bans often serve only to obscure an "underlying govern- mental policy" that could be implemented without regu- lating speech. Central Hudson, 447 U. S., at 566, n. 9. In this way, these commercial speech bans not only hinder consumer choice, but also impede debate over central issues of public policy. See id., at 575 (Blackmun, J., concurring in judgment).13 Precisely because bans against truthful, nonmisleading commercial speech rarely seek to protect consumers from either deception or overreaching, they usually rest solely on the offensive assumption that the public will respond "irra- tionally" to the truth. Linmark, 431 U. S., at 96. The First Amendment directs us to be especially skeptical of regu- lations that seek to keep people in the dark for what the government perceives to be their own good. That teaching applies equally to state attempts to deprive consumers of accurate information about their chosen products: "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and infor- mation are vital, some of slight worth. But the general rule is that the speaker and the audience, not the gov- 12 In Discovery Network, we held that the city's categorical ban on com- mercial newsracks attached too much importance to the distinction be- tween commercial and noncommercial speech. After concluding that the esthetic and safety interests served by the newsrack ban bore no relation- ship whatsoever to the prevention of commercial harms, we rejected the State's attempt to justify its ban on the sole ground that it targeted com- mercial speech. See 507 U. S., at 428. 13 This case bears out the point. Rhode Island seeks to reduce alcohol consumption by increasing alcohol price; yet its means of achieving that goal deprives the public of their chief source of information about the reigning price level of alcohol. As a result, the State's price advertising ban keeps the public ignorant of the key barometer of the ban's effective- ness: the alcohol beverages' prices. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 504 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Stevens, J. ernment, assess the value of the information presented. Thus, even a communication that does no more than pro- pose a commercial transaction is entitled to the coverage of the First Amendment. See Virginia State Bd. of Pharmacy, supra, at 762." Edenfield v. Fane, 507 U. S. 761, 767 (1993). See also Linmark, 431 U. S., at 96 (1977); Rubin v. Coors Brewing Co., 514 U. S., at 497­498 (Stevens, J., concurring in judgment); Tribe, American Constitutional Law § 12­2, at 790, and n. 11. V In this case, there is no question that Rhode Island's price advertising ban constitutes a blanket prohibition against truthful, nonmisleading speech about a lawful product. There is also no question that the ban serves an end unre- lated to consumer protection. Accordingly, we must review the price advertising ban with "special care," Central Hud- son, 447 U. S., at 566, n. 9, mindful that speech prohibitions of this type rarely survive constitutional review, ibid. The State argues that the price advertising prohibition should nevertheless be upheld because it directly advances the State's substantial interest in promoting temperance, and because it is no more extensive than necessary. Cf. id., at 566. Although there is some confusion as to what Rhode Island means by temperance, we assume that the State as- serts an interest in reducing alcohol consumption.14 14 Before the District Court, the State argued that it sought to reduce consumption among irresponsible drinkers. App. 67. In its brief to this Court, it equates its interest in promoting temperance with an interest in reducing alcohol consumption among all drinkers. See, e. g., Brief for Respondents 28. The Rhode Island Supreme Court has characterized the State's interest in "promoting temperance" as both "the state's interest in reducing the consumption of liquor," S&S Liquormart, Inc. v. Pastore, 497 A. 2d 729, 734 (1985), and the State's interest in discouraging "excessive consumption of alcoholic beverages," id., at 735. A state statute declares the ban's purpose to be "the promotion of temperance and for the rea- 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 505 Opinion of Stevens, J. In evaluating the ban's effectiveness in advancing the State's interest, we note that a commercial speech regulation "may not be sustained if it provides only ineffective or re- mote support for the government's purpose." Id., at 564. For that reason, the State bears the burden of showing not merely that its regulation will advance its interest, but also that it will do so "to a material degree." Edenfield, 507 U. S., at 771; see also Rubin v. Coors Brewing Co., 514 U. S., at 486­488. The need for the State to make such a show- ing is particularly great given the drastic nature of its chosen means-the wholesale suppression of truthful, non- misleading information. Accordingly, we must determine whether the State has shown that the price advertising ban will significantly reduce alcohol consumption. We can agree that common sense supports the conclusion that a prohibition against price advertising, like a collusive agreement among competitors to refrain from such advertis- ing,15 will tend to mitigate competition and maintain prices at a higher level than would prevail in a completely free mar- ket. Despite the absence of proof on the point, we can even agree with the State's contention that it is reasonable to as- sume that demand, and hence consumption throughout the market, is somewhat lower whenever a higher, noncompeti- tive price level prevails. However, without any findings of fact, or indeed any evidentiary support whatsoever, we can- not agree with the assertion that the price advertising ban will significantly advance the State's interest in promoting temperance. sonable control of the traffic in alcoholic beverages." R. I. Gen. Laws § 3­1­5 (1987). 15 See, e. g., Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 735 (1988) (considering restriction on price advertising as evidence of Sherman Act violation); United States v. Sealy, Inc., 388 U. S. 350, 355 (1967) (same); Blackburn v. Sweeney, 53 F. 3d 825, 828 (CA7 1995) (considering restrictions on the location of advertising as evidence of Sherman Act violation). 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 506 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Stevens, J. Although the record suggests that the price advertising ban may have some impact on the purchasing patterns of temperate drinkers of modest means, 829 F. Supp., at 546, the State has presented no evidence to suggest that its speech prohibition will significantly reduce marketwide con- sumption.16 Indeed, the District Court's considered and un- contradicted finding on this point is directly to the contrary. Id., at 549.17 Moreover, the evidence suggests that the abu- sive drinker will probably not be deterred by a marginal price increase, and that the true alcoholic may simply reduce his purchases of other necessities. In addition, as the District Court noted, the State has not identified what price level would lead to a significant reduc- tion in alcohol consumption, nor has it identified the amount 16 Petitioners' stipulation that they each expect to realize a $100,000 ben- efit per year if the ban is lifted is not to the contrary. App. 47. The stipulation shows only that petitioners believe they will be able to compete more effectively for existing alcohol consumers if there is no ban on price advertising. It does not show that they believe either the number of alco- hol consumers, or the number of purchases by those consumers, will in- crease in the ban's absence. Indeed, the State's own expert conceded that "plaintiffs' expectation of realizing additional profits through price adver- tising has no necessary relationship to increased overall consumption." 829 F. Supp., at 549. Moreover, we attach little significance to the fact that some studies sug- gest that people budget the amount of money that they will spend on alcohol. 39 F. 3d 5, 7 (CA1 1994). These studies show only that, in a competitive market, people will tend to search for the cheapest product in order to meet their budgets. The studies do not suggest that the amount of money budgeted for alcohol consumption will remain fixed in the face of a marketwide price increase. 17 Although the Court of Appeals concluded that the regulation directly advanced the State's interest, it did not dispute the District Court's conclu- sion that the evidence suggested that, at most, a price advertising ban would have a marginal impact on overall alcohol consumption. Id., at 7­8; cf. Michigan Beer & Wine Wholesalers Assn. v. Attorney General, 142 Mich. App., at 311, 370 N. W. 2d, at 336 (explaining that "any additional impact on the level of consumption attributable to the absence of price advertisements would be negligible"). 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 507 Opinion of Stevens, J. that it believes prices would decrease without the ban. Ibid. Thus, the State's own showing reveals that any con- nection between the ban and a significant change in alcohol consumption would be purely fortuitous. As is evident, any conclusion that elimination of the ban would significantly increase alcohol consumption would re- quire us to engage in the sort of "speculation or conjecture" that is an unacceptable means of demonstrating that a re- striction on commercial speech directly advances the State's asserted interest. Edenfield, 507 U. S., at 770.18 Such spec- ulation certainly does not suffice when the State takes aim at accurate commercial information for paternalistic ends. The State also cannot satisfy the requirement that its re- striction on speech be no more extensive than necessary. It is perfectly obvious that alternative forms of regulation that would not involve any restriction on speech would be more likely to achieve the State's goal of promoting temperance. As the State's own expert conceded, higher prices can be maintained either by direct regulation or by increased taxa- tion. 829 F. Supp., at 549. Per capita purchases could be limited as is the case with prescription drugs. Even educa- tional campaigns focused on the problems of excessive, or even moderate, drinking might prove to be more effective. As a result, even under the less than strict standard that generally applies in commercial speech cases, the State has failed to establish a "reasonable fit" between its abridgment of speech and its temperance goal. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989); see also 18 Outside the First Amendment context, we have refused to uphold alco- hol advertising bans premised on similarly speculative assertions about their impact on consumption. See Capital Cities Cable, Inc. v. Crisp, 467 U. S., at 715­716 (holding ban pre-empted by Federal Communications Commission regulations); California Retail Liquor Dealers Assn. v. Mid- cal Aluminum, Inc., 445 U. S. 97 (1980) (holding ban violated the Sherman Act). It would be anomalous if the First Amendment were more tolerant of speech bans than federal regulations and statutes. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 508 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Stevens, J. Rubin v. Coors Brewing Co., 514 U. S., at 491 (explaining that defects in a federal ban on alcohol advertising are "further highlighted by the availability of alternatives that would prove less intrusive to the First Amendment's protections for commercial speech"); Linmark, 431 U. S., at 97 (suggest- ing that the State use financial incentives or counterspeech, rather than speech restrictions, to advance its interests). It necessarily follows that the price advertising ban cannot sur- vive the more stringent constitutional review that Central Hudson itself concluded was appropriate for the complete suppression of truthful, nonmisleading commercial speech. 447 U. S., at 566, n. 9. VI The State responds by arguing that it merely exercised appropriate "legislative judgment" in determining that a price advertising ban would best promote temperance. Re- lying on the Central Hudson analysis set forth in Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), and United States v. Edge Broadcasting Co., 509 U. S. 418 (1993), Rhode Island first argues that, because ex- pert opinions as to the effectiveness of the price advertising ban "go both ways," the Court of Appeals correctly con- cluded that the ban constituted a "reasonable choice" by the legislature. 39 F. 3d, at 7. The State next contends that precedent requires us to give particular deference to that legislative choice because the State could, if it chose, ban the sale of alcoholic beverages outright. See Posadas, 478 U. S., at 345­346. Finally, the State argues that deference is ap- propriate because alcoholic beverages are so-called "vice" products. See Edge, 509 U. S., at 426; Posadas, 478 U. S., at 346­347. We consider each of these contentions in turn. The State's first argument fails to justify the speech pro- hibition at issue. Our commercial speech cases recognize some room for the exercise of legislative judgment. See Metromedia, Inc. v. San Diego, 453 U. S. 490, 507­508 (1981). However, Rhode Island errs in concluding that Edge and 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 509 Opinion of Stevens, J. Posadas establish the degree of deference that its decision to impose a price advertising ban warrants. In Edge, we upheld a federal statute that permitted only those broadcasters located in States that had legalized lotter- ies to air lottery advertising. The statute was designed to regulate advertising about an activity that had been deemed illegal in the jurisdiction in which the broadcaster was lo- cated. 509 U. S., at 433­434. Here, by contrast, the com- mercial speech ban targets information about entirely law- ful behavior. Posadas is more directly relevant. There, a five-Member majority held that, under the Central Hudson test, it was "up to the legislature" to choose to reduce gambling by sup- pressing in-state casino advertising rather than engaging in educational speech. Posadas, 478 U. S., at 344. Rhode Is- land argues that this logic demonstrates the constitutionality of its own decision to ban price advertising in lieu of raising taxes or employing some other less speech-restrictive means of promoting temperance. The reasoning in Posadas does support the State's argu- ment, but, on reflection, we are now persuaded that Posadas erroneously performed the First Amendment analysis. The casino advertising ban was designed to keep truthful, non- misleading speech from members of the public for fear that they would be more likely to gamble if they received it. As a result, the advertising ban served to shield the State's anti- gambling policy from the public scrutiny that more direct, nonspeech regulation would draw. See id., at 351 (Brennan, J., dissenting). Given our longstanding hostility to commercial speech reg- ulation of this type, Posadas clearly erred in concluding that it was "up to the legislature" to choose suppression over a less speech-restrictive policy. The Posadas majority's con- clusion on that point cannot be reconciled with the unbroken line of prior cases striking down similarly broad regulations on truthful, nonmisleading advertising when non-speech- 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 510 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Stevens, J. related alternatives were available. See id., at 350 (Bren- nan, J., dissenting) (listing cases); Kurland, Posadas de Puerto Rico v. Tourism Company: " `Twas Strange, `Twas Passing Strange; `Twas Pitiful, `Twas Wondrous Pitiful," 1986 S. Ct. Rev. 1, 12­15. Because the 5-to-4 decision in Posadas marked such a sharp break from our prior precedent, and because it con- cerned a constitutional question about which this Court is the final arbiter, we decline to give force to its highly defer- ential approach. Instead, in keeping with our prior hold- ings, we conclude that a state legislature does not have the broad discretion to suppress truthful, nonmisleading infor- mation for paternalistic purposes that the Posadas majority was willing to tolerate. As we explained in Virginia Bd. of Pharmacy, "[i]t is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us." 425 U. S., at 770. We also cannot accept the State's second contention, which is premised entirely on the "greater-includes-the-lesser" rea- soning endorsed toward the end of the majority's opinion in Posadas. There, the majority stated that "the greater power to completely ban casino gambling necessarily in- cludes the lesser power to ban advertising of casino gambling." 478 U. S., at 345­346. It went on to state that "because the government could have enacted a wholesale prohibition of [casino gambling] it is permissible for the government to take the less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising." Id., at 346. The majority concluded that it would "surely be a strange constitutional doctrine which would concede to the legislature the authority to totally ban a product or activity, but deny to the legislature the author- ity to forbid the stimulation of demand for the product or activity through advertising on behalf of those who would profit from such increased demand." Ibid. On the basis of 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 511 Opinion of Stevens, J. these statements, the State reasons that its undisputed authority to ban alcoholic beverages must include the power to restrict advertisements offering them for sale. In Rubin v. Coors Brewing Co., 514 U. S. 476 (1995), the United States advanced a similar argument as a basis for supporting a statutory prohibition against revealing the alco- holic content of malt beverages on product labels. We re- jected the argument, noting that the statement in the Posa- das opinion was made only after the majority had concluded that the Puerto Rican regulation "survived the Central Hud- son test." 514 U. S., at 483, n. 2. Further consideration persuades us that the "greater-includes-the-lesser" argu- ment should be rejected for the additional and more im- portant reason that it is inconsistent with both logic and well-settled doctrine. Although we do not dispute the proposition that greater powers include lesser ones, we fail to see how that syllogism requires the conclusion that the State's power to regulate commercial activity is "greater" than its power to ban truth- ful, nonmisleading commercial speech. Contrary to the as- sumption made in Posadas, we think it quite clear that ban- ning speech may sometimes prove far more intrusive than banning conduct. As a venerable proverb teaches, it may prove more injurious to prevent people from teaching others how to fish than to prevent fish from being sold.19 Similarly, a local ordinance banning bicycle lessons may curtail freedom far more than one that prohibits bicycle riding within city limits. In short, we reject the assumption that words are necessarily less vital to freedom than actions, or that logic somehow proves that the power to prohibit an activity is necessarily "greater" than the power to suppress speech about it. 19 "Give a man a fish, and you feed him for a day. Teach a man to fish, and you feed him for a lifetime." The International Thesaurus of Quota- tions 646 (compiled by R. Tripp 1970). 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 512 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Stevens, J. As a matter of First Amendment doctrine, the Posadas syllogism is even less defensible. The text of the First Amendment makes clear that the Constitution presumes that attempts to regulate speech are more dangerous than at- tempts to regulate conduct. That presumption accords with the essential role that the free flow of information plays in a democratic society. As a result, the First Amendment di- rects that government may not suppress speech as easily as it may suppress conduct, and that speech restrictions cannot be treated as simply another means that the government may use to achieve its ends. These basic First Amendment principles clearly apply to commercial speech; indeed, the Posadas majority impliedly conceded as much by applying the Central Hudson test. Thus, it is no answer that commercial speech concerns prod- ucts and services that the government may freely regulate. Our decisions from Virginia Bd. of Pharmacy on have made plain that a State's regulation of the sale of goods differs in kind from a State's regulation of accurate information about those goods. The distinction that our cases have consist- ently drawn between these two types of governmental action is fundamentally incompatible with the absolutist view that the State may ban commercial speech simply because it may constitutionally prohibit the underlying conduct.20 20 It is also no answer to say that it would be "strange" if the First Amendment tolerated a seemingly "greater" regulatory measure while forbidding a "lesser" one. We recently held that although the govern- ment had the power to proscribe an entire category of speech, such as obscenity or so-called fighting words, it could not limit the scope of its ban to obscene or fighting words that expressed a point of view with which the government disagrees. R. A. V. v. St. Paul, 505 U. S. 377 (1992). Similarly, in Cincinnati v. Discovery Network, Inc., 507 U. S. 410 (1993), we assumed that States could prevent all newsracks from being placed on public sidewalks, but nevertheless concluded that they could not ban only those newsracks that contained certain commercial publications. Id., at 428. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 513 Opinion of Stevens, J. That the State has chosen to license its liquor retailers does not change the analysis. Even though government is under no obligation to provide a person, or the public, a par- ticular benefit, it does not follow that conferral of the benefit may be conditioned on the surrender of a constitutional right. See, e. g., Frost & Frost Trucking Co. v. Railroad Comm'n of Cal., 271 U. S. 583, 594 (1926). In Perry v. Sindermann, 408 U. S. 593 (1972), relying on a host of cases applying that principle during the preceding quarter century, the Court explained that government "may not deny a benefit to a per- son on a basis that infringes his constitutionally protected interests-especially his interest in freedom of speech." Id., at 597. That teaching clearly applies to state attempts to regulate commercial speech, as our cases striking down bans on truthful, nonmisleading speech by licensed profes- sionals attest. See, e. g., Bates v. State Bar of Ariz., 433 U. S., at 355; Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). Thus, just as it is perfectly clear that Rhode Island could not ban all obscene liquor ads except those that advocated temperance, we think it equally clear that its power to ban the sale of liquor entirely does not include a power to cen- sor all advertisements that contain accurate and nonmis- leading information about the price of the product. As the entire Court apparently now agrees, the statements in the Posadas opinion on which Rhode Island relies are no longer persuasive. Finally, we find unpersuasive the State's contention that, under Posadas and Edge, the price advertising ban should be upheld because it targets commercial speech that pertains to a "vice" activity. Respondents premise their request for a so-called "vice" exception to our commercial speech doc- trine on language in Edge which characterized gambling as a "vice." Edge, 509 U. S., at 426; see also Posadas, 478 U. S., at 346­347. Respondents misread our precedent. Our de- cision last Term striking down an alcohol-related advertising 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 514 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of the Court restriction effectively rejected the very contention respond- ents now make. See Rubin v. Coors Brewing Co., 514 U. S., at 478, 482, n. 2. Moreover, the scope of any "vice" exception to the protec- tion afforded by the First Amendment would be difficult, if not impossible, to define. Almost any product that poses some threat to public health or public morals might reason- ably be characterized by a state legislature as relating to "vice activity." Such characterization, however, is anoma- lous when applied to products such as alcoholic beverages, lottery tickets, or playing cards, that may be lawfully pur- chased on the open market. The recognition of such an ex- ception would also have the unfortunate consequence of either allowing state legislatures to justify censorship by the simple expedient of placing the "vice" label on selected law- ful activities, or requiring the federal courts to establish a federal common law of vice. See Kurland, 1986 S. Ct. Rev., at 15. For these reasons, a "vice" label that is unaccompa- nied by a corresponding prohibition against the commercial behavior at issue fails to provide a principled justification for the regulation of commercial speech about that activity. VII From 1919 until 1933, the Eighteenth Amendment to the Constitution totally prohibited "the manufacture, sale, or transportation of intoxicating liquors" in the United States and its territories. Section 1 of the Twenty-first Amend- ment repealed that prohibition, and § 2 delegated to the sev- eral States the power to prohibit commerce in, or the use of, alcoholic beverages.21 The States' regulatory power over this segment of commerce is therefore largely "unfettered 21 "Section 2. The transportation or importation into any State, Terri- tory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." U. S. Const., Amdt. 21, § 2. 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 515 Opinion of the Court by the Commerce Clause." Ziffrin, Inc. v. Reeves, 308 U. S. 132, 138 (1939). As is clear, the text of the Twenty-first Amendment sup- ports the view that, while it grants the States authority over commerce that might otherwise be reserved to the Federal Government, it places no limit whatsoever on other constitu- tional provisions. Nevertheless, Rhode Island argues, and the Court of Appeals agreed, that in this case the Twenty- first Amendment tilts the First Amendment analysis in the State's favor. See 39 F. 3d, at 7­8. In reaching its conclusion, the Court of Appeals relied on our decision in California v. LaRue, 409 U. S. 109 (1972).22 In LaRue, five Members of the Court relied on the Twenty- first Amendment to buttress the conclusion that the First Amendment did not invalidate California's prohibition of cer- tain grossly sexual exhibitions in premises licensed to serve alcoholic beverages. Specifically, the opinion stated that the Twenty-first Amendment required that the prohibition be given an added presumption in favor of its validity. See id., at 118­119. We are now persuaded that the Court's analysis in LaRue would have led to precisely the same result if it had placed no reliance on the Twenty-first Amendment. Entirely apart from the Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic bever- ages in inappropriate locations. Moreover, in subsequent cases, the Court has recognized that the States' inherent police powers provide ample authority to restrict the kind of "bacchanalian revelries" described in the LaRue opinion regardless of whether alcoholic beverages are involved. Id., at 118; see, e. g., Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991). As we recently noted: "LaRue did not involve 22 The State also relies on two per curiam opinions that followed the Twenty-first Amendment analysis set forth in LaRue. See New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981), and Newport v. Iacobucci, 479 U. S. 92 (1986). 517US2$49I 02-04-99 19:52:11 PAGES OPINPGT 516 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of the Court commercial speech about alcohol, but instead concerned the regulation of nude dancing in places where alcohol was served." Rubin v. Coors Brewing Co., 514 U. S., at 483, n. 2. Without questioning the holding in LaRue, we now dis- avow its reasoning insofar as it relied on the Twenty-first Amendment. As we explained in a case decided more than a decade after LaRue, although the Twenty-first Amendment limits the effect of the dormant Commerce Clause on a State's regulatory power over the delivery or use of intox- icating beverages within its borders, "the Amendment does not license the States to ignore their obligations under other provisions of the Constitution." Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 712 (1984). That general conclusion reflects our specific holdings that the Twenty-first Amend- ment does not in any way diminish the force of the Supremacy Clause, ibid.; California Retail Liquor Dealers Assn. v. Mid- cal Aluminum, Inc., 445 U. S. 97, 112­114 (1980), the Es- tablishment Clause, Larkin v. Grendel's Den, Inc., 459 U. S. 116, 122, n. 5 (1982), or the Equal Protection Clause, Craig v. Boren, 429 U. S. 190, 209 (1976). We see no reason why the First Amendment should not also be included in that list. Accordingly, we now hold that the Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment. The Twenty-first Amendment, therefore, can- not save Rhode Island's ban on liquor price advertising. VIII Because Rhode Island has failed to carry its heavy burden of justifying its complete ban on price advertising, we con- clude that R. I. Gen. Laws §§ 3­8­7 and 3­8­8.1 (1987), as well as Regulation 32 of the Rhode Island Liquor Control Administration, abridge speech in violation of the First Amendment as made applicable to the States by the Due Process Clause of the Fourteenth Amendment. The judg- ment of the Court of Appeals is therefore reversed. It is so ordered. 517US2$49K 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 517 Opinion of Scalia, J. Justice Scalia, concurring in part and concurring in the judgment. I share Justice Thomas's discomfort with the Central Hudson test, which seems to me to have nothing more than policy intuition to support it. I also share Justice Ste- vens's aversion towards paternalistic governmental policies that prevent men and women from hearing facts that might not be good for them. On the other hand, it would also be paternalism for us to prevent the people of the States from enacting laws that we consider paternalistic, unless we have good reason to believe that the Constitution itself forbids them. I will take my guidance as to what the Constitution forbids, with regard to a text as indeterminate as the First Amendment's preservation of "the freedom of speech," and where the core offense of suppressing particular political ideas is not at issue, from the long accepted practices of the American people. See McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 375 (1995) (Scalia, J., dissenting). The briefs and arguments of the parties in the present case provide no illumination on that point; understandably so, since both sides accepted Central Hudson. The amicus brief on behalf of the American Advertising Federation et al. did examine various expressions of view at the time the First Amendment was adopted; they are consistent with First Amendment protection for commercial speech, but cer- tainly not dispositive. I consider more relevant the state legislative practices prevalent at the time the First Amend- ment was adopted, since almost all of the States had free speech constitutional guarantees of their own, whose mean- ing was not likely to have been different from the federal constitutional provision derived from them. Perhaps more relevant still are the state legislative practices at the time the Fourteenth Amendment was adopted, since it is most improbable that that adoption was meant to overturn any existing national consensus regarding free speech. Indeed, it is rare that any nationwide practice would develop con- trary to a proper understanding of the First Amendment 517US2$49K 02-04-99 19:52:11 PAGES OPINPGT 518 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Thomas, J. itself-for which reason I think also relevant any national consensus that had formed regarding state regulation of advertising after the Fourteenth Amendment, and before this Court's entry into the field. The parties and their amici provide no evidence on these points. Since I do not believe we have before us the wherewithal to declare Central Hudson wrong-or at least the where- withal to say what ought to replace it-I must resolve this case in accord with our existing jurisprudence, which all ex- cept Justice Thomas agree would prohibit the challenged regulation. I am not disposed to develop new law, or rein- force old, on this issue, and accordingly I merely concur in the judgment of the Court. I believe, however, that Jus- tice Stevens's treatment of the application of the Twenty- first Amendment to this case is correct, and accordingly join Parts I, II, VII, and VIII of Justice Stevens's opinion. Justice Thomas, concurring in Parts I, II, VI, and VII, and concurring in the judgment. In cases such as this, in which the government's asserted interest is to keep legal users of a product or service igno- rant in order to manipulate their choices in the marketplace, the balancing test adopted in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980), should not be applied, in my view. Rather, such an "inter- est" is per se illegitimate and can no more justify regulation of "commercial" speech than it can justify regulation of "non- commercial" speech. I In Virginia Bd. of Pharmacy v. Virginia Citizens Con- sumer Council, Inc., 425 U. S. 748, 762 (1976), this Court held that speech that does " `no more than propose a commercial transaction' " was protected by the First Amendment, and struck down a ban on price advertising regarding prescrip- tion drugs. The Court asserted that a "particular consum- er's interest in the free flow of commercial information" may 517US2$49N 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 519 Opinion of Thomas, J. be as keen as, or keener than, his interest in "the day's most urgent political debate," id., at 763, and that "the proper allo- cation of resources" in our free enterprise system requires that consumer decisions be "intelligent and well informed," id., at 765. The Court also explained that, unless consumers are kept informed about the operations of the free market system, they cannot form "intelligent opinions as to how that system ought to be regulated or altered." Ibid. See also id., at 765­766, nn. 19­20.1 The Court sharply rebuffed the State's argument that consumers would make irresponsible choices if they were able to choose between higher priced but higher quality pharmaceuticals accompanied by high quality prescription monitoring services resulting from a "stable pharmacist-customer relationshi[p]," id., at 768, on the one hand, and cheaper but lower quality pharmaceuticals unac- companied by such services, on the other: "[T]he State's protectiveness of its citizens rests in large measure on the advantages of their being kept in igno- rance. The advertising ban does not directly affect pro- fessional standards one way or the other. It affects them only through the reactions it is assumed people will have to the free flow of drug price information. . . . . . "There is, of course, an alternative to this highly pa- ternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests, if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. . . . It is precisely this kind of choice, be- tween the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the 1 Accord, Virginia Bd. of Pharmacy, 425 U. S., at 780, n. 8 (Stewart, J., concurring) (information about price and products conveyed by advertis- ing may stimulate thought and debate about political questions). 517US2$49N 02-04-99 19:52:11 PAGES OPINPGT 520 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Thomas, J. First Amendment makes for us. Virginia is free to re- quire whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering. In this sense, the justifications Virginia has offered for sup- pressing the flow of prescription drug price information, far from persuading us that the flow is not protected by the First Amendment, have reinforced our view that it is." Id., at 769­770 (citation omitted). The Court opined that false or misleading advertising was not protected, on the grounds that the accuracy of advertis- ing claims may be more readily verifiable than is the accu- racy of political or other claims, and that "commercial" speech is made more durable by its profit motive. Id., at 771, and n. 24. The Court also made clear that it did not envision protection for advertising that proposes an illegal transaction. Id., at 772­773 (distinguishing Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U. S. 376 (1973)). In case after case following Virginia Bd. of Pharmacy, the Court, and individual Members of the Court, have contin- ued to stress the importance of free dissemination of infor- mation about commercial choices in a market economy; the antipaternalistic premises of the First Amendment; the im- propriety of manipulating consumer choices or public opinion through the suppression of accurate "commercial" informa- tion; the near impossibility of severing "commercial" speech from speech necessary to democratic decisionmaking; and the dangers of permitting the government to do covertly what it might not have been able to muster the political support to do openly.2 2 See Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 96­97 (1977); Bates v. State Bar of Ariz., 433 U. S. 350, 364­365, 368­369, 374­375, 376­ 377 (1977); Friedman v. Rogers, 440 U. S. 1, 8­9 (1979); id., at 23­24 517US2$49N 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 521 Opinion of Thomas, J. In other decisions, however, the Court has appeared to accept the legitimacy of laws that suppress information in order to manipulate the choices of consumers-so long as the government could show that the manipulation was in fact successful. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980), was the first decision to clearly embrace this position, although the Court applied a very strict overbreadth analysis to strike down the advertising ban at issue.3 In two other decisions, Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), and United States v. Edge Broadcasting Co., 509 U. S. 418 (1993), the Court simply presumed that advertising of a product or service leads to increased consumption; since, as in Central Hudson, the Court saw nothing impermissible in the government's suppressing information in order to dis- courage consumption, it upheld the advertising restrictions (Blackmun, J., for two Justices, concurring in part and dissenting in part); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 561­562 (1980); id., at 566, n. 9; id., at 575 (Blackmun, J., joined by Brennan, J., concurring in judgment); id., at 581 (Stevens, J., also joined by Brennan, J., concurring in judgment); Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 79 (1983) (Rehnquist, J., for two Justices, concurring in judgment); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 646 (1985); Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328, 350­351, 358 (1986) (Bren- nan, J., for three Justices, dissenting); Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 421­422, n. 17 (1993); id., at 432 (Blackmun, J., concur- ring); Edenfield v. Fane, 507 U. S. 761, 767, 770 (1993); United States v. Edge Broadcasting Co., 509 U. S. 418, 437­439, and nn. 1, 3, 4 (1993) (Ste- vens, J., for two Justices, dissenting); Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. 136, 142­143 (1994); Rubin v. Coors Brewing Co., 514 U. S. 476, 481­482 (1995); id., at 492­493, 494 (Stevens, J., concurring in judgment); Florida Bar v. Went For It, Inc., 515 U. S. 618, 639­640, 644­645 (1995) (Kennedy, J., for four Justices, dissenting). 3 The Court found that although the total effect of the advertising ban would be to decrease consumption, the advertising ban impermissibly ex- tended to some advertising that itself might not increase consumption. Central Hudson, supra, at 569­571. 517US2$49N 02-04-99 19:52:11 PAGES OPINPGT 522 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Thomas, J. in those cases. Posadas, supra, at 341­342; Edge, supra, at 425, 433­434. The Court has at times appeared to assume that "commer- cial" speech could be censored in a variety of ways for any of a variety of reasons because, as was said without clear rationale in some post-Virginia Bd. of Pharmacy cases, such speech was in a "subordinate position in the scale of First Amendment values," Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456 (1978); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 478 (1989); Florida Bar v. Went For It, Inc., 515 U. S. 618, 623 (1995), or of "less constitutional moment," Central Hudson, supra, at 562­563, n. 5. But see Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 418­ 419 (1993) (rejecting this assertion); id., at 431 (Blackmun, J., concurring) (same). I do not see a philosophical or historical basis for asserting that "commercial" speech is of "lower value" than "noncommercial" speech. Indeed, some histori- cal materials suggest to the contrary. See, e. g., ante, at 495­496 (citing Franklin's Apology for Printers); Ex parte Jackson, 96 U. S. 727, 733 (1878) (dictum that Congress could not, consistent with freedom of the press, prevent the circu- lation of lottery advertising through methods other than the United States mail); see also In re Rapier, 143 U. S. 110, 134­135 (1892) (continuing to assume that freedom of the press prevents Congress from prohibiting circulation of newspapers containing lottery advertisements); Lewis Pub- lishing Co. v. Morgan, 229 U. S. 288, 315 (1913) (same); see generally Brief for American Advertising Federation et al. as Amici Curiae 12­24 (citing authorities for propositions that commercial activity and advertising were integral to life in colonial America and that Framers' political philosophy equated liberty and property and did not distinguish be- tween commercial and noncommercial messages). Nor do I believe that the only explanations that the Court has ever advanced for treating "commercial" speech differently from other speech can justify restricting "commercial" speech in 517US2$49N 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 523 Opinion of Thomas, J. order to keep information from legal purchasers so as to thwart what would otherwise be their choices in the marketplace.4 II I do not join the principal opinion's application of the Cen- tral Hudson balancing test because I do not believe that such a test should be applied to a restriction of "commercial" speech, at least when, as here, the asserted interest is one that is to be achieved through keeping would-be recipients of the speech in the dark.5 Application of the advancement- of-state-interest prong of Central Hudson makes little sense to me in such circumstances. Faulting the State for failing to show that its price advertising ban decreases alcohol con- sumption "significantly," as Justice Stevens does, ante, at 507 (emphasis deleted), seems to imply that if the State had been more successful at keeping consumers ignorant and thereby decreasing their consumption, then the restriction might have been upheld. This contradicts Virginia Bd. of 4 As noted above, the asserted rationales for differentiating "commer- cial" speech from other speech are (1) that the truth of "commercial" speech is supposedly more verifiable, and (2) that "commercial speech, the offspring of economic self-interest" is supposedly a "hardy breed of expres- sion that is not particularly susceptible to being crushed by overbroad regulation." Central Hudson, supra, at 564, n. 6 (internal quotation marks omitted). The degree to which these rationales truly justify treat- ing "commercial" speech differently from other speech (or indeed, whether the requisite distinction can even be drawn) is open to question, in my view. See Kozinski & Banner, Who's Afraid of Commercial Speech, 76 Va. L. Rev. 627, 634­638 (1990) (questioning basis for drawing distinction); id., at 638­650 (questioning coherence of distinction). In any event, nei- ther of these rationales provides any basis for permitting government to keep citizens ignorant as a means of manipulating their choices in the commercial or political marketplace. 5 In other words, I do not believe that a Central Hudson-type balancing test should apply when the asserted purpose is like the one put forth by the government in Central Hudson itself. Whether some type of balanc- ing test is warranted when the asserted state interest is of a different kind is a question that I do not consider here. 517US2$49N 02-04-99 19:52:11 PAGES OPINPGT 524 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Thomas, J. Pharmacy's rationale for protecting "commercial" speech in the first instance. Both Justice Stevens and Justice O'Connor appear to adopt a stricter, more categorical interpretation of the fourth prong of Central Hudson than that suggested in some of our other opinions,6 one that could, as a practical matter, go a long way toward the position I take. The State argues that keeping information about lower priced alcohol from consum- ers will tend to raise the total price of alcohol to consumers (defined as money price plus the costs of searching out lower priced alcohol, see Brief for Respondents 23), thus discourag- ing alcohol consumption. In their application of the fourth prong, both Justice Stevens and Justice O'Connor hold that because the State can ban the sale of lower priced alco- hol altogether by instituting minimum prices or levying taxes, it cannot ban advertising regarding lower priced liq- uor. Although the tenor of Justice O'Connor's opinion (and, to a lesser extent, that of Justice Stevens' opinion) might suggest that this is just another routine case-by-case application of Central Hudson's fourth prong, the Court's holding will in fact be quite sweeping if applied consistently in future cases. The opinions would appear to commit the courts to striking down restrictions on speech whenever a direct regulation (i. e., a regulation involving no restriction on speech regarding lawful activity at all) would be an equally effective method of dampening demand by legal users. But it would seem that directly banning a product (or rationing it, taxing it, controlling its price, or otherwise restricting its sale in specific ways) would virtually always be at least as effective in discouraging consumption as merely restricting advertising regarding the product would be, and thus virtually all restrictions with such a purpose would fail the fourth prong of the Central Hudson test. 6 E. g., Cincinnati v. Discovery Network, 507 U. S., at 417, n. 13 (com- mercial speech restrictions impermissible if alternatives are "numerous" and obvious). 517US2$49N 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 525 Opinion of Thomas, J. This would be so even if the direct regulation is, in one sense, more restrictive of conduct generally. In this case, for ex- ample, adoption of minimum prices or taxes will mean that those who, under the current legal system, would have hap- pened across cheap liquor or would have sought it out, will be forced to pay more. Similarly, a State seeking to discour- age liquor sales would have to ban sales by convenience stores rather than banning convenience store liquor advertis- ing; it would have to ban liquor sales after midnight, rather than banning advertising by late-night liquor sellers; and so on.The upshot of the application of the fourth prong in the opinions of Justice Stevens and of Justice O'Connor seems to be that the government may not, for the purpose of keeping would-be consumers ignorant and thus decreasing demand, restrict advertising regarding commercial transac- tions-or at least that it may not restrict advertising regard- ing commercial transactions except to the extent that it out- laws or otherwise directly restricts the same transactions within its own borders.7 I welcome this outcome; but, 7 The two most obvious situations in which no equally effective direct regulation will be available for discouraging consumption (and thus, the two situations in which the Court and I might differ on the outcome) are: (1) When a law directly regulating conduct would violate the Constitution (e. g., because the item is constitutionally protected), or (2) when the sale is to occur outside the State's borders. As to the first situation: Although the Court's application of the fourth prong today does not specifically foreclose regulations or bans of advertis- ing regarding items that cannot constitutionally be banned, it would seem strange to hold that the government's power to interfere with transmis- sion of information regarding these items, in order to dampen demand for them, is more extensive than its power to restrict, for the same purpose, advertising of items that are not constitutionally protected. Cf. Bigelow v. Virginia, 421 U. S. 809, 822 (1975). As to the second situation: When a State seeks to dampen consumption by its citizens of products or services outside its borders, it does not have the option of direct regulation. Here, a respondent correctly points out that alternatives such as taxes will not be effective in discouraging sales 517US2$49N 02-04-99 19:52:11 PAGES OPINPGT 526 44 LIQUORMART, INC. v. RHODE ISLAND Opinion of Thomas, J. rather than "applying" the fourth prong of Central Hudson to reach the inevitable result that all or most such adver- tising restrictions must be struck down, I would adhere to the doctrine adopted in Virginia Bd. of Pharmacy and in Justice Blackmun's Central Hudson concurrence, that all at- tempts to dissuade legal choices by citizens by keeping them ignorant are impermissible. III Although the Court took a sudden turn away from Vir- ginia Bd. of Pharmacy in Central Hudson, it has never ex- plained why manipulating the choices of consumers by keep- ing them ignorant is more legitimate when the ignorance is maintained through suppression of "commercial" speech than when the same ignorance is maintained through suppres- sion of "noncommercial" speech. The courts, including this to Rhode Island residents of lower priced alcohol outside the State, see Brief for Respondent Rhode Island Liquor Stores Association 27; yet the Court strikes down the ban against price advertising even as applied to out-of-state liquor sellers such as petitioner Peoples Super Liquor Stores. Perhaps Justice Stevens and Justice O'Connor would distinguish a situation in which a State had actually banned sales of lower priced alcohol within the State and had then, through a ban of advertising by out-of-state sellers, sought to keep residents ignorant of the fact that lower priced alcohol was legally available in other States. Cf. United States v. Edge Broadcasting Co., 509 U. S. 418 (1993). See ante, at 508­510. The outcome in Edge may well be in conflict with the principles es- poused in Virginia Bd. of Pharmacy and ratified by me today. See Edge, supra, at 436­439 (Stevens, J., dissenting). (In Edge, respondent did not put forth the broader principles adopted in Virginia Bd. of Pharmacy, but rather argued that the advertising restriction did not have a suffi- ciently close fit under Central Hudson.) Because the issue of restrictions on advertising of products or services to be purchased legally outside a State that has itself banned or regulated the same purchases within the State is not squarely presented in this case, I will not address here whether the decision in Edge can be reconciled with the position I take today. 517US2$49N 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 527 Opinion of Thomas, J. Court, have found the Central Hudson "test" to be, as a general matter, very difficult to apply with any uniformity.8 This may result in part from the inherently nondetermina- tive nature of a case-by-case balancing "test" unaccompanied by any categorical rules, and the consequent likelihood that individual judicial preferences will govern application of the test.9 Moreover, the second prong of Central Hudson, as applied to the facts of that case and to those here, apparently 8 See, e. g., Kozinski & Banner, 76 Va. L. Rev., at 630­631 (citing cases); Wright, Freedom and Culture: Why We Should Not Buy Commercial Speech, 72 Denver U. L. Rev. 137, 162­166 (1994) (citing cases); Kasakove, New York State Association of Realtors, Inc. v. Shaffer: When the Second Circuit Chooses Between Free Speech and Fair Housing, Who Wins?, 61 Brooklyn L. Rev. 397, 409­410, and nn. 71, 73, 418 (1995); Note, Dunagin v. City of Oxford: Mississippi's Suppression of Liquor Advertising, 63 Detroit L. Rev. 175, 184­187 (1985); Faille, Spinning the Roulette Wheel: Commercial Speech and Philosophical Cogency, Fed. B. N. & J. 58, 60­62 (1994); Margulies, Connecticut's Free Speech Clauses: A Framework and an Agenda, 65 Conn. Bar J. 437, 440, n. 20 (1991) (citing cases). 9 The third prong of Central Hudson is far from a mechanical one. In Posadas, Edge, and other cases, the Court has presumed that advertising bans decrease consumption. Here, by contrast, the principal opinion de- mands proof of a "significant" decrease in consumption, and finds it lack- ing. But petitioners' own expert testified at one point that, taking into account disposable income, price was a "potent" influence on alcohol con- sumption, see App. 79; and the American Medical Association had appar- ently concluded that advertising of alcohol in general increased total alco- hol consumption sufficiently to make a ban on advertising worthwhile, see 44 Liquor Mart, Inc. v. Racine, 829 F. Supp. 543, 548 (RI 1993). A court more inclined to uphold the ban here could have pointed to these facts in support. The courts have also had difficulty applying the fourth prong because the outcome has depended upon the level of generality with which the interest was described. See Faille, supra, at 58, 60. If today's strict application of the fourth prong survives, it will clarify the prong's appli- cation in a large number of cases, since, as noted above, it will simply invalidate most restrictions in which the government attempts to manipu- late consumption through enforced ignorance rather than through direct regulation. 517US2$49N 02-04-99 19:52:11 PAGES OPINPGT 528 44 LIQUORMART, INC. v. RHODE ISLAND O'Connor, J., concurring in judgment requires judges to delineate those situations in which citi- zens cannot be trusted with information, and invites judges to decide whether they themselves think that consumption of a product is harmful enough that it should be discour- aged.10 In my view, the Central Hudson test asks the courts to weigh incommensurables-the value of knowledge versus the value of ignorance-and to apply contradictory premises-that informed adults are the best judges of their own interests, and that they are not. Rather than continu- ing to apply a test that makes no sense to me when the as- serted state interest is of the type involved here, I would return to the reasoning and holding of Virginia Bd. of Phar- macy. Under that decision, these restrictions fall. Justice O'Connor, with whom The Chief Justice, Justice Souter, and Justice Breyer join, concurring in the judgment. Rhode Island prohibits advertisement of the retail price of alcoholic beverages, except at the place of sale. The State's only asserted justification for this ban is that it promotes temperance by increasing the cost of alcoholic beverages. Brief for Respondent State of Rhode Island 22. I agree with the Court that Rhode Island's price-advertising ban is invalid. I would resolve this case more narrowly, however, by applying our established Central Hudson test to deter- mine whether this commercial speech regulation survives First Amendment scrutiny. Under that test, we first determine whether the speech at issue concerns lawful activity and is not misleading, and whether the asserted governmental interest is substantial. If both these conditions are met, we must decide whether the regulation "directly advances the governmental interest asserted, and whether it is not more extensive than is neces- sary to serve that interest." Central Hudson Gas & Elec. 10 See ante, at 514 (noting that scope of any "vice" category of products would be difficult to define). 517US2$49J 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 529 O'Connor, J., concurring in judgment Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 566 (1980). Given the means by which this regulation purportedly serves the State's interest, our conclusion is plain: Rhode Island's regulation fails First Amendment scrutiny. Both parties agree that the first two prongs of the Central Hudson test are met. Even if we assume, arguendo, that Rhode Island's regulation also satisfies the requirement that it directly advance the governmental interest, Rhode Island's regulation fails the final prong; that is, its ban is more exten- sive than necessary to serve the State's interest. As we have explained, in order for a speech restriction to pass muster under the final prong, there must be a fit be- tween the legislature's goal and method, "a fit that is not necessarily perfect, but reasonable; that represents not nec- essarily the single best disposition but one whose scope is in proportion to the interest served." Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989) (internal quotation marks omitted). While the State need not employ the least restrictive means to accomplish its goal, the fit be- tween means and ends must be "narrowly tailored." Ibid. The scope of the restriction on speech must be reasonably, though it need not be perfectly, targeted to address the harm intended to be regulated. See Florida Bar v. Went For It, Inc., 515 U. S. 618, 632­634 (1995). The State's regulation must indicate a "carefu[l] calculat[ion of] the costs and bene- fits associated with the burden on speech imposed by its pro- hibition." Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 417 (1993) (internal quotation marks omitted). The availability of less burdensome alternatives to reach the stated goal signals that the fit between the legislature's ends and the means chosen to accomplish those ends may be too imprecise to withstand First Amendment scrutiny. See Rubin v. Coors Brewing Co., 514 U. S. 476, 486­487 (1995); Cincinnati, supra, at 417, n. 13. If alternative channels per- mit communication of the restricted speech, the regulation is 517US2$49J 02-04-99 19:52:11 PAGES OPINPGT 530 44 LIQUORMART, INC. v. RHODE ISLAND O'Connor, J., concurring in judgment more likely to be considered reasonable. See Florida Bar, supra, at 632­634. Rhode Island offers one, and only one, justification for its ban on price advertising. Rhode Island says that the ban is intended to keep alcohol prices high as a way to keep con- sumption low. By preventing sellers from informing cus- tomers of prices, the regulation prevents competition from driving prices down and requires consumers to spend more time to find the best price for alcohol. Brief for Respondent State of Rhode Island 22. The higher cost of obtaining alco- hol, Rhode Island argues, will lead to reduced consumption. The fit between Rhode Island's method and this particular goal is not reasonable. If the target is simply higher prices generally to discourage consumption, the regulation imposes too great, and unnecessary, a prohibition on speech in order to achieve it. The State has other methods at its disposal- methods that would more directly accomplish this stated goal without intruding on sellers' ability to provide truthful, nonmisleading information to customers. Indeed, Rhode Is- land's own expert conceded that " `the objective of lowering consumption of alcohol by banning price advertising could be accomplished by establishing minimum prices and/or by increasing sales taxes on alcoholic beverages.' " 39 F. 3d 5, 7 (CA1 1994). A tax, for example, is not normally very dif- ficult to administer and would have a far more certain and direct effect on prices, without any restriction on speech. The principal opinion suggests further alternatives, such as limiting per capita purchases or conducting an educational campaign about the dangers of alcohol consumption. Ante, at 507. The ready availability of such alternatives-at least some of which would far more effectively achieve Rhode Is- land's only professed goal, at comparatively small additional administrative cost-demonstrates that the fit between ends and means is not narrowly tailored. Too, this regulation prevents sellers of alcohol from communicating price infor- mation anywhere but at the point of purchase. No channels 517US2$49J 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 531 O'Connor, J., concurring in judgment exist at all to permit them to publicize the price of their products. Respondents point for support to Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), where, applying the Central Hudson test, we upheld the constitutionality of a Puerto Rico law that prohibited the advertising of casino gambling aimed at residents of Puerto Rico, but permitted such advertising aimed at tourists. The Court there accepted as reasonable the legislature's belief that the regulation would be effective, and concluded that, because the restriction affected only advertising of casino gambling aimed at residents of Puerto Rico, not that aimed at tourists, the restriction was narrowly tailored to serve Puerto Rico's interest. 478 U. S., at 341­344. The Court accepted without question Puerto Rico's account of the effectiveness and reasonableness of its speech restriction. Respondents ask us to make a similar presumption here to uphold the validity of Rhode Island's law. It is true that Posadas accepted as reasonable, without further inquiry, Puerto Rico's assertions that the regulations furthered the government's interest and were no more ex- tensive than necessary to serve that interest. Since Posa- das, however, this Court has examined more searchingly the State's professed goal, and the speech restriction put into place to further it, before accepting a State's claim that the speech restriction satisfies First Amendment scrutiny. See, e. g., Florida Bar v. Went For It, Inc., supra; Rubin v. Coors Brewing Co., supra; Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U. S. 136 (1994); Edenfield v. Fane, 507 U. S. 761 (1993); Cincinnati v. Discovery Network, Inc., supra. In each of these cases we declined to accept at face value the proffered justification for the State's regulation, but examined carefully the relation- ship between the asserted goal and the speech restriction used to reach that goal. The closer look that we have re- quired since Posadas comports better with the purpose of 517US2$49J 02-04-99 19:52:11 PAGES OPINPGT 532 44 LIQUORMART, INC. v. RHODE ISLAND O'Connor, J., concurring in judgment the analysis set out in Central Hudson, by requiring the State to show that the speech restriction directly advances its interest and is narrowly tailored. Under such a closer look, Rhode Island's price-advertising ban clearly fails to pass muster. Because Rhode Island's regulation fails even the less strin- gent standard set out in Central Hudson, nothing here requires adoption of a new analysis for the evaluation of commercial speech regulation. The principal opinion ac- knowledges that "even under the less than strict standard that generally applies in commercial speech cases, the State has failed to establish a reasonable fit between its abridg- ment of speech and its temperance goal." Ante, at 507 (in- ternal quotation marks omitted). Because we need go no further, I would not here undertake the question whether the test we have employed since Central Hudson should be displaced. Respondents argue that an additional factor, the Twenty- first Amendment, tips the First Amendment analysis in Rhode Island's favor. The Twenty-first Amendment repealed the prohibition on the manufacture, sale, or transportation of intoxicating liq- uors that had been established by the Eighteenth Amend- ment. Section 2 of the Twenty-first Amendment created an exception to the normal operation of the Commerce Clause, to permit States to prohibit commerce in, or the use of, alco- holic beverages. Craig v. Boren, 429 U. S. 190, 206 (1976). In its examination of Rhode Island's statute, the Court of Appeals erroneously concluded that the Twenty-first Amend- ment provided an "added presumption in favor of the validity of the state regulation." 39 F. 3d, at 7­9 (internal quotation marks omitted). The Twenty-first Amendment cannot save an otherwise invalid restriction on speech. Nothing in the Amendment's text or history justifies its use to alter the application of the First Amendment. "[O]ur prior cases have made clear that the [Twenty-first] Amend- 517US2$49J 02-04-99 19:52:11 PAGES OPINPGT Cite as: 517 U. S. 484 (1996) 533 O'Connor, J., concurring in judgment ment does not license the States to ignore their obligations under other provisions of the Constitution." Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 712 (1984). See also Lar- kin v. Grendel's Den, Inc., 459 U. S. 116, 122, n. 5 (1982) ("The State may not exercise its power under the Twenty-first Amendment in a way which impinges upon the Establish- ment Clause of the First Amendment"); Craig, supra, at 206 ("Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights pro- tected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned" (internal quota- tion marks omitted)). The Twenty-first Amendment does not trump First Amendment rights or add a presumption of validity to a regulation that cannot otherwise satisfy First Amendment requirements. The Court of Appeals relied on California v. LaRue, 409 U. S. 109, 118­119 (1972), for its determination that the Twenty-first Amendment provided an "added presumption" of the regulation's validity. There, this Court upheld a State's regulations prohibiting establishments licensed to sell liquor by the drink from offering explicitly sexual en- tertainment. As we recently explained in Coors, "LaRue did not involve commercial speech about alcohol, but instead concerned the regulation of nude dancing in places where alcohol was served." 514 U. S., at 483, n. 2. The cases following LaRue similarly involved the regulation of nude or nearly nude dancing in establishments licensed to serve alcohol. New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981) (per curiam); Newport v. Iacobucci, 479 U. S. 92 (1986) (per curiam). Nothing in LaRue suggested that the Twenty-first Amendment would permit a State to pro- hibit the kind of speech at issue here, and as discussed above, the text and history of the Twenty-first Amendment clearly indicate that the Amendment was not intended to supplant the general application of constitutional provisions, except for its limited exception to the Commerce Clause's normal 517US2$49J 02-04-99 19:52:11 PAGES OPINPGT 534 44 LIQUORMART, INC. v. RHODE ISLAND O'Connor, J., concurring in judgment operation. Indeed, LaRue notes that prior decisions "did not go so far as to hold or say that the Twenty-first Amend- ment supersedes all other provisions of the United States Constitution in the area of liquor regulations," 409 U. S., at 115, and LaRue certainly does not stand for that proposition. The Court of Appeals' reliance on LaRue was misplaced. Rhode Island's prohibition on alcohol-price advertising, as a means to keep alcohol prices high and consumption low, cannot survive First Amendment scrutiny. The Twenty- first Amendment cannot save this otherwise invalid regula- tion. While I agree with the Court's finding that the reg- ulation is invalid, I would decide that issue on narrower grounds. I therefore concur in the judgment. 517US2$50Z 02-07-99 17:58:22 PAGES OPINPGT OCTOBER TERM, 1995 535 Syllabus UNITED STATES v. NOLAND, trustee for debtor FIRST TRUCK LINES, INC. certiorari to the united states court of appeals for the sixth circuit No. 95­323. Argued March 25, 1996-Decided May 13, 1996 The Internal Revenue Service filed claims in the Bankruptcy Court for taxes, interest, and penalties that accrued after debtor First Truck Lines, Inc., sought relief under Chapter 11 of the Bankruptcy Code (Code) but before the case was converted to a Chapter 7 bankruptcy. The court found that all of the IRS's claims were entitled to first pri- ority as administrative expenses under 11 U. S. C. §§ 503(b)(1)(C) and 507(a)(1), but held that the penalty claim was subject to "equitable sub- ordination" under § 510(c), which the court interpreted as giving it au- thority not only to deal with inequitable Government conduct, but also to adjust a statutory priority of a category of claims. The court's deci- sion to subordinate the penalty claim to the claims of the general unse- cured creditors was affirmed by the District Court and the Sixth Circuit, which concluded that postpetition, nonpecuniary loss tax penalty claims are susceptible to subordination by their very nature. Held: A bankruptcy court may not equitably subordinate claims on a cate- gorical basis in derogation of Congress's priorities scheme. The lan- guage of § 510(c), principles of statutory construction, and legislative history clearly indicate Congress's intent in its 1978 revision of the Code to use the existing judge-made doctrine of equitable subordination as the starting point for deciding when subordination is appropriate. By adopting "principles of equitable subordination," § 510(c) allows a bank- ruptcy court to reorder a tax penalty when justified by particular facts. It is also clear that Congress meant to give courts some leeway to de- velop the doctrine. However, a reading of the statute that would give courts leeway broad enough to allow subordination at odds with the congressional ordering of priorities by category is improbable in the extreme. The statute would then empower a court to modify the prior- ity provision's operation at the same level at which Congress operated when it made its characteristically general judgment to establish the hierarchy of claims in the first place, thus delegating legislative revision, not authorizing equitable exception. Nonetheless, just such a legisla- tive type of decision underlies the reordering of priorities here. The Sixth Circuit's decision runs directly counter to Congress's policy judg- ment that a postpetition tax penalty should receive the priority of an 517US2$50Z 02-07-99 17:58:22 PAGES OPINPGT 536 UNITED STATES v. NOLAND Opinion of the Court administrative expense. Since the Sixth Circuit's rationale was inap- propriately categorical in nature, this Court need not decide whether a bankruptcy court must always find creditor misconduct before a claim may be equitably subordinated. Pp. 538­543. 48 F. 3d 210, reversed and remanded. Souter, J., delivered the opinion for a unanimous Court. Kent L. Jones argued the cause for the United States. With him on the briefs were Solicitor General Days, Assist- ant Attorney General Argrett, Deputy Solicitor General Wallace, Gary D. Gray, and Edward T. Perelmuter. Raymond J. Pikna, Jr., argued the cause for respondent. With him on the brief were Thomas R. Noland and Gregory P. Garner. Justice Souter delivered the opinion of the Court. The issue in this case is the scope of a bankruptcy court's power of equitable subordination under 11 U. S. C. § 510(c). Here, in the absence of any finding of inequitable conduct on the part of the Government, the Bankruptcy Court subor- dinated the Government's claim for a postpetition, noncom- pensatory tax penalty, which would normally receive first priority in bankruptcy as an "administrative expense," §§ 503(b)(1)(C), 507(a)(1). We hold that the bankruptcy court may not equitably subordinate claims on a categorical basis in derogation of Congress's scheme of priorities. In April 1986, First Truck Lines, Inc., voluntarily filed for relief under Chapter 11 of the Bankruptcy Code, and in the subsequent operation of its business as a debtor-in- possession incurred, but failed to discharge, tax liabilities to the Internal Revenue Service (IRS). First Truck moved to convert the case to a Chapter 7 liquidation in June 1988, and in August 1988 the Bankruptcy Court granted that motion and appointed respondent Thomas R. Noland as trustee. The liquidation of the estate's assets raised insufficient funds to pay all of the creditors. 517US2$50M 02-07-99 17:58:22 PAGES OPINPGT Cite as: 517 U. S. 535 (1996) 537 Opinion of the Court After the conversion, the IRS filed claims for taxes, in- terest, and penalties that accrued after the Chapter 11 filing but before the Chapter 7 conversion, and although the parties agreed that the claims for taxes and interest were entitled to priority as administrative expenses, §§ 503(b), 507(a)(1), and 726(a)(1),1 they disagreed about the priority to be given tax penalties. The Bankruptcy Court determined that the penalties (like the taxes and interest) were adminis- trative expenses under § 503(b) but held them to be subject to equitable subordination under § 510(c).2 In so doing, the court read that section to provide authority not only to deal with inequitable conduct on the Government's part, but also to adjust a statutory priority of a category of claims. The Bankruptcy Court accordingly weighed the relative equities that seemed to flow from what it described as "the Code's preference for compensating actual loss claims," and subordi- nated the tax penalty claim to those of the general unsecured creditors. In re First Truck Lines, Inc., 141 B. R. 621, 629 (SD Ohio 1992). The District Court affirmed. Internal Revenue Service v. Noland, 190 B. R. 827 (SD Ohio 1993). After reviewing the legislative history of the 1978 revision to the Bankruptcy Code and several recent appeals cases on equitable subordination of tax penalties, the Sixth Circuit affirmed, as well. In re First Truck Lines, Inc., 48 F. 3d 210 (1995). The Sixth Circuit stated that it did 1 Section 507(a)(1) provides, in relevant part: "(a) The following expenses and claims have priority in the following order: (1) First, administra- tive expenses allowed under section 503(b) of this title . . . ." Under § 503(b)(1), administrative expenses include "any tax . . . incurred by the estate" (with certain exceptions not relevant here), as well as "any fine [or] penalty . . . relating to [such] a tax . . . ." Section 726(a)(1) adopts the order of payment specified in § 507 for Chapter 7 proceedings. 2 Section 510(c) provides that "the court may . . . under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim . . . ." 517US2$50M 02-07-99 17:58:22 PAGES OPINPGT 538 UNITED STATES v. NOLAND Opinion of the Court "not see the fairness or the justice in permitting the Commissioner's claim for tax penalties, which are not being assessed because of pecuniary losses to the Inter- nal Revenue Service, to enjoy an equal or higher prior- ity with claims based on the extension of value to the debtor, whether secured or not. Further, assessing tax penalties against the estate of a debtor no longer in existence serves no punitive purpose. Because of the nature of postpetition, nonpecuniary loss tax penalty claims in a Chapter 7 case, we believe such claims are susceptible to subordination. To hold otherwise would be to allow creditors who have supported the business during its attempt to reorganize to be penalized once that effort has failed and there is not enough to go around." Id., at 218. See also Burden v. United States, 917 F. 2d 115, 120 (CA3 1990); Schultz Broadway Inn v. United States, 912 F. 2d 230, 234 (CA8 1990); In re Virtual Network Services Corp., 902 F. 2d 1246, 1250 (CA7 1990). We granted certiorari to deter- mine the appropriate scope of the power under the Bank- ruptcy Code (Code) to subordinate a tax penalty, 516 U. S. 1005 (1995), and we now reverse. The judge-made doctrine of equitable subordination pre- dates Congress's revision of the Code in 1978. Relying in part on our earlier cases, see, e. g., Comstock v. Group of Institutional Investors, 335 U. S. 211 (1948); Pepper v. Lit- ton, 308 U. S. 295 (1939); Taylor v. Standard Gas & Elec. Co., 306 U. S. 307 (1939), the Fifth Circuit, in its influential opinion in In re Mobile Steel Co., 563 F. 2d 692, 700 (1977), observed that the application of the doctrine was generally triggered by a showing that the creditor had engaged in "some type of inequitable conduct." Mobile Steel discussed two further conditions relating to the application of the doc- trine: that the misconduct have "resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant," and that the subordination "not be incon- 517US2$50M 02-07-99 17:58:22 PAGES OPINPGT Cite as: 517 U. S. 535 (1996) 539 Opinion of the Court sistent with the provisions of the Bankruptcy Act." Ibid. This last requirement has been read as a "reminder to the bankruptcy court that although it is a court of equity, it is not free to adjust the legally valid claim of an innocent party who asserts the claim in good faith merely because the court perceives that the result is inequitable." DeNatale & Abram, The Doctrine of Equitable Subordination as Applied to Nonmanagement Creditors, 40 Bus. Law. 417, 428 (1985). The District Courts and Courts of Appeals have generally followed the Mobile Steel formulation, In re Baker & Getty Financial Services, Inc., 974 F. 2d 712, 717 (CA6 1992). Although Congress included no explicit criteria for equita- ble subordination when it enacted § 510(c)(1), the reference in § 510(c) to "principles of equitable subordination" clearly indicates congressional intent at least to start with existing doctrine. This conclusion is confirmed both by principles of statutory construction, see Midlantic Nat. Bank v. New Jer- sey Dept. of Environmental Protection, 474 U. S. 494, 501 (1986) ("The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific. The Court has followed this rule with particular care in construing the scope of bankruptcy codifications") (citation omitted), and by statements in the legislative history that Congress "intended that the term `principles of equitable subordination' follow existing case law and leave to the courts development of this principle," 124 Cong. Rec. 32398 (1978) (Rep. Edwards); see also id., at 33998 (Sen. DeCon- cini). In keeping with pre-1978 doctrine, many Courts of Appeals have continued to require inequitable conduct be- fore allowing the equitable subordination of most claims, see, e. g., In re Fabricators, Inc., 926 F. 2d 1458, 1464 (CA5 1991); In re Bellanca Aircraft Corp., 850 F. 2d 1275, 1282­1283 (CA8 1988), although several have done away with the re- quirement when the claim in question was a tax penalty. 517US2$50M 02-07-99 17:58:22 PAGES OPINPGT 540 UNITED STATES v. NOLAND Opinion of the Court See, e. g., Burden, supra, at 120; Schultz, supra, at 234; In re Virtual Network, supra, at 1250. Section 510(c) may of course be applied to subordinate a tax penalty, since the Code's requirement that a Chapter 7 trustee must distribute assets "in the order specified in . . . section 507" (which gives a first priority to administra- tive expense tax penalties) is subject to the qualification, "[e]xcept as provided in section 510 of this title . . . ." 11 U. S. C. § 726(a). Thus, "principles of equitable subordina- tion" may allow a bankruptcy court to reorder a tax penalty in a given case. It is almost as clear that Congress meant to give courts some leeway to develop the doctrine, 124 Cong. Rec. 33998 (1978), rather than to freeze the pre-1978 law in place. The question is whether that leeway is broad enough to allow subordination at odds with the congressional ordering of priorities by category. The answer turns on Congress's probable intent to pre- serve the distinction between the relative levels of general- ity at which trial courts and legislatures respectively func- tion in the normal course. Hence, the adoption in § 510(c) of "principles of equitable subordination" permits a court to make exceptions to a general rule when justified by particu- lar facts, cf. Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944) ("The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case"). But if the provision also authorized a court to conclude on a general, categorical level that tax penalties should not be treated as administrative expenses to be paid first, it would empower a court to modify the operation of the priority statute at the same level at which Congress operated when it made its characteristically general judgment to establish the hierarchy of claims in the first place. That is, the distinction between characteristic legislative and trial court functions would simply be swept away, and the statute would delegate legislative revision, not authorize equitable exception. We find such a reading im- 517US2$50M 02-07-99 17:58:22 PAGES OPINPGT Cite as: 517 U. S. 535 (1996) 541 Opinion of the Court probable in the extreme. "Decisions about the treatment of categories of claims in bankruptcy proceedings . . . are not dictated or illuminated by principles of equity and do not fall within the judicial power of equitable subordination . . . ." Burden, 917 F. 2d, at 122 (Alito, J., concurring in part and dissenting in part). Just such a legislative type of decision, however, underlies the Bankruptcy Court's reordering of priorities in question here, as approved by the District Court and the Court of Appeals. Despite language in its opinion about requiring a balancing of the equities in individual cases, the Court of Appeals actually concluded that "postpetition, nonpecuniary loss tax penalty claims" are "susceptible to subordination" by their very "nature." 48 F. 3d, at 218. And although the court said that not every tax penalty would be equitably subordinated, ibid., that would be the inevitable result of consistent applications of the rule employed here, which de- pends not on individual equities but on the supposedly gen- eral unfairness of satisfying "postpetition, nonpecuniary loss tax penalty claims" before the claims of a general creditor. The Court of Appeals's decision thus runs directly counter to Congress's policy judgment that a postpetition tax penalty should receive the priority of an administrative expense, 11 U. S. C. §§ 503(b)(1)(C), 507(a)(1), and 726(a)(1). This is true regardless of Noland's argument that the Bankruptcy Court made a distinction between compensatory and noncompensa- tory tax penalties, for this was itself a categorical distinction at a legislative level of generality. Indeed, Congress recog- nized and employed that distinction elsewhere in the priority provisions: Congress specifically assigned 8th priority to certain compensatory tax penalties, see § 507(a)(8)(G), and 12th priority to prepetition, noncompensatory penalties, see §§ 726(a)(1) and (4).3 3 Noland argues that "although the penalties at issue arose postpetition," this claim should be viewed as a prepetition penalty because a "reorga- nized debtor is in many respects similar to a prepetition debtor . . . [and] 517US2$50M 02-07-99 17:58:22 PAGES OPINPGT 542 UNITED STATES v. NOLAND Opinion of the Court The Sixth Circuit, to be sure, invoked a more modest au- thority than legislative revision when it relied on statements by the congressional leaders of the 1978 Code revisions, see 48 F. 3d, at 215, 217­218, and it is true that Representative Edwards and Senator DeConcini stated that "under existing law, a claim is generally subordinated only if [the] holder of such claim is guilty of inequitable conduct, or the claim itself is of a status susceptible to subordination, such as a penalty or a claim for damages arising from the purchase or sale of a security of the debtor." 124 Cong. Rec. 32398 (1978) (Rep. Edwards); see also id., at 33998 (Sen. DeConcini). But their remarks were not statements of existing law and the Sixth Circuit's reliance on the unexplained reference to subordi- nated penalties ran counter to this Court's previous endorse- ment of priority treatment for postpetition tax penalties. See Nicholas v. United States, 384 U. S. 678, 692­695 (1966). More fundamentally, statements in legislative history cannot be read to convert statutory leeway for judicial development of a rule on particularized exceptions into delegated author- ity to revise statutory categorization, untethered to any obli- gation to preserve the coherence of substantive congres- sional judgments. the conversion of [this] case to chapter 7 was tantamount to the filing of a new petition." Brief for Respondent 16, n. 7. But we agree with the Sixth Circuit, see In re First Truck Lines, Inc., 48 F. 3d 210, 214 (1995), that the penalties at issue here are postpetition administrative expenses pursuant to 11 U. S. C. §§ 348(d), 503(b)(1). Although § 348(d) provides that a "claim against the estate or the debtor that arises after the order for relief but before conversion in a case that is converted under section 1112, 1208, or 1307 of this title, other than a claim specified in section 503(b) of this title, shall be treated for all purposes as if such claim had arisen immediately before the date of the filing of the petition," the claim for priority here is "specified in section 503(b)" and Congress has already determined that it is not to be treated like prepetition penalties. Noland may or may not have a valid policy argument, but it is up to Congress, not this Court, to revise the determination if it so chooses. 517US2$50M 02-07-99 17:58:22 PAGES OPINPGT Cite as: 517 U. S. 535 (1996) 543 Opinion of the Court Given our conclusion that the Sixth Circuit's rationale was inappropriately categorical in nature, we need not decide today whether a bankruptcy court must always find creditor misconduct before a claim may be equitably subordinated. We do hold that (in the absence of a need to reconcile con- flicting congressional choices) the circumstances that prompt a court to order equitable subordination must not occur at the level of policy choice at which Congress itself operated in drafting the Code. Cf. In re Ahlswede, 516 F. 2d 784, 787 (CA9) ("[T]he [equity] chancellor never did, and does not now, exercise unrestricted power to contradict statutory or com- mon law when he feels a fairer result may be obtained by application of a different rule"), cert. denied sub nom. Steb- bins v. Crocker Citizens Nat. Bank, 423 U. S. 913 (1975); In re Columbia Ribbon Co., 117 F. 2d 999, 1002 (CA3 1941) (court cannot "set up a subclassification of claims . . . and fix an order of priority for the sub-classes according to its theory of equity"). In this instance, Congress could have, but did not, deny noncompensatory, postpetition tax penalties the first priority given to other administrative expenses, and bankruptcy courts may not take it upon themselves to make that categor- ical determination under the guise of equitable subordina- tion. 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. 517US2$51Z 02-04-99 20:35:04 PAGES OPINPGT 544 OCTOBER TERM, 1995 Syllabus UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 751 v. BROWN GROUP, INC., dba BROWN SHOE CO. certiorari to the united states court of appeals for the eighth circuit No. 95­340. Argued February 20, 1996-Decided May 13, 1996 Petitioner union filed this suit, alleging that respondent company began to lay off workers in connection with the closing of one of its plants before giving the union the closing notice required by the Worker Adjustment and Retraining Notification Act (WARN Act), and seeking backpay for each of its affected members. The District Court dismissed the com- plaint, and the Court of Appeals affirmed, holding that the suit was barred because the union failed to meet the third part of the test for determining associational standing. Held:1. The WARN Act grants a union authority to sue for damages on behalf of its members, North Star Steel Co. v. Thomas, 515 U. S. 29, 31; the writ of certiorari therefore was not improvidently granted. Pp. 548­550. 2. The union has standing to bring this action. Pp. 551­558. (a) Under modern associational standing doctrine, an organization may sue to redress its members' injuries when: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) nei- ther the claim asserted nor the relief requested requires the participa- tion of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333, 343. The requirement of individual participation has been understood to preclude associational standing when an organization seeks damages on behalf of its members. The question here is whether a bar to the union's suit found in this third prong of the test is constitutional and absolute, or prudential and malleable by Congress. The Court of Appeals apparently concluded that the test's third prong is of constitutional character, for it denied standing even though the WARN Act permits the union to sue for its members' damages. Pp. 551­554. (b) The test's first prong is grounded in Article III as an element of the constitutional case or controversy requirement. Resort to general principles, however, leads to the conclusion that the third prong is a prudential impediment that Congress may abrogate. Hunt's require- 517US2$51Z 02-04-99 20:35:04 PAGES OPINPGT Cite as: 517 U. S. 544 (1996) 545 Opinion of the Court ment that an organization suing as representative include at least one member with standing to present, in his or her own right, the claim pleaded by the association is an Article III necessity for the association's representative suit. Hunt's second prong is complementary to the first, because it raises an assurance that the association's litigators will them- selves have a stake in the resolution of the dispute, and thus be in a position to serve as the defendant's natural adversary. But once an association has satisfied Hunt's first and second prongs assuring adver- sarial vigor in pursuing a claim for which member Article III standing exists, it is difficult to see a constitutional necessity for anything more. The third prong is best seen as focusing on matters of administrative convenience and efficiency, not on elements of a case or controversy. Circumstantial evidence of that prong's prudential nature is seen in the wide variety of other contexts in which a statute, federal rule, or accepted common-law practice permits one person to sue on behalf of another, even where damages are sought. See, e. g., 42 U. S. C. § 2000e­5(f)(1). Pp. 554­558. 50 F. 3d 1426, reversed and remanded. Souter, J., delivered the opinion for a unanimous Court. Laurence Gold argued the cause for petitioner. With him on the briefs were George Murphy, Renee L. Bowser, Mar- sha S. Berzon, and Jonathan P. Hiatt. Alan Jenkins argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Deputy Solicitor General Kneedler, Thomas S. Williamson, Jr., Allen H. Feldman, Nathaniel I. Spiller, and Mark S. Flynn. Thomas C. Walsh argued the cause for respondent. With him on the brief were Michael G. Biggers, James N. Foster, Jr., Michelle M. Cain, and Robert D. Pickle.* Justice Souter delivered the opinion of the Court. The Worker Adjustment and Retraining Notification Act (WARN Act or Act), 102 Stat. 890, 29 U. S. C. § 2101 et seq., obligates certain employers to give workers or their union *Kary L. Moss filed a brief for the American Federation of Government Employees et al. as amici curiae urging reversal. 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT 546 FOOD AND COMMERCIAL WORKERS v. BROWN GROUP, INC. Opinion of the Court 60 days' notice before a plant closing or mass layoff. If an employer fails to give the notice, the employees may sue for backpay for each day of the violation, and, in the alternative, the union is ostensibly authorized to sue on their behalf. See North Star Steel Co. v. Thomas, 515 U. S. 29 (1995); Part II, infra. Permitting a union to sue under the Act on behalf of its employee-members raises a question of standing. In Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333 (1977), we described a three-prong test for an associa- tion's standing to sue based on injury to one of its members. The third element, at issue here, would bar such a suit when "the claim asserted [or] the relief requested requires the par- ticipation of individual members in the lawsuit." Id., at 343. Relying on Warth v. Seldin, 422 U. S. 490 (1975), Hunt held that "individual participation" is not normally necessary when an association seeks prospective or injunctive relief for its members, but indicated that such participation would be required in an action for damages to an association's mem- bers, thus suggesting that an association's action for damages running solely to its members would be barred for want of the association's standing to sue. See Hunt, supra, at 343. The questions presented here are whether, in enacting the WARN Act, Congress intended to abrogate this other- wise applicable standing limitation so as to permit the union to sue for damages running to its workers, and, if it did, whether it had the constitutional authority to do so. We answer yes to each question. I On January 17, 1992, respondent Brown Shoe Company wrote to a representative of the United Food and Commer- cial Workers International Union, stating that Brown Shoe would shut down its Dixon, Missouri, plant and permanently lay off 277 employees beginning on March 20, 1992. App. 62­63. The complaint filed by petitioner United Food and 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT Cite as: 517 U. S. 544 (1996) 547 Opinion of the Court Commercial Workers Union Local 751 charged that Brown Shoe's representations were false insofar as they are rele- vant here, and that in fact, even before sending the letter, Brown Shoe had begun the layoffs, which continued through February and into March. App. 8­9.1 The union accord- ingly claimed a violation of the WARN Act and sought the statutory remedy of 60-days' backpay for each of its af- fected members. The District Court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6), saying that "when an orga- nization seeks to recover monetary relief on behalf of its members, courts have found that such claims necessarily re- quire participation of individual members in the suit." 820 F. Supp. 1192, 1193­1194 (ED Mo. 1993). The Court of Ap- peals for the Eighth Circuit affirmed, concluding that "[e]ach union member who wishes to recover WARN Act damages from Brown Shoe must participate in the suit so that his or her right to damages can be determined and the quantum of damages can be calculated by the court on the basis of particularized proof. Therefore, the union cannot meet the third part of the Hunt test and is precluded from asserting associational standing." 50 F. 3d 1426, 1432 (1995).2 We granted certiorari, 516 U. S. 930 (1995), and now reverse. 1 Because the District Court dismissed the complaint, for the purposes of deciding this appeal we assume the truth of this allegation. Nor do we reach the merits of, or any other issue about, the union's further complaint that Brown Shoe's letter was defective because it was sent to an individual who worked for the International. The complaint alleges that United Food Local 751, not the International or its employee, is the exclusive representative of the affected employees and is thus statutorily entitled to notice of the closing and mass layoff. 2 The District Court had also denied the union's motion to amend its complaint to add employees as plaintiffs. App. to Pet. for Cert. 18a­19a. The Court of Appeals held that the District Court's decision in this respect did not represent an abuse of its discretion. 50 F. 3d, at 1432. The cor- rectness of this determination is outside the scope of the questions pre- sented here. See Pet. for Cert. i. 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT 548 FOOD AND COMMERCIAL WORKERS v. BROWN GROUP, INC. Opinion of the Court II At the outset, Brown Shoe argues that the WARN Act grants a union no authority to sue for damages on behalf of its members. Because the question on which we granted certiorari (whether Congress has the constitutional authority to alter the third prong of the associational standing enquiry) assumes that the WARN Act does grant the union such au- thority, Brown Shoe urges us to declare the writ of certiorari improvidently granted. In North Star Steel, however, we noted, contrary to Brown Shoe's position, that "[t]he class of plaintiffs" who may sue for backpay under the WARN Act "includes aggrieved employees (or their unions, as repre- sentatives)." 515 U. S., at 31, and on further consideration we have no doubt that we were reading the statute correctly. The key requirement of the Act is found in § 2102, which prohibits an employer from ordering "a plant closing or mass layoff until the end of a 60-day period" running from the date of the employer's written notice of the closing or layoff "(1) to each representative of the affected employees as of the time of the notice or, if there is no such representative at that time, to each affected employee," and "(2) to the State dislocated worker unit . . . and the chief elected official of the unit of local government within which such closing or layoff is to occur." 29 U. S. C. § 2102(a). Congress defined the "representative" to which § 2102(a)(1) refers as the employ- ees' union, "an exclusive representative of employees within the meaning of section 9(a) or 8(f) of the National Labor Relations Act (29 U. S. C. 159(a), 158(f)) or section 2 of the Railway Labor Act (45 U. S. C. 152)." 102 Stat. 890, 29 U. S. C. § 2101(a)(4). Enforcement of the § 2102 notice requirement is addressed in § 2104(a), the following provisions of which answer Brown Shoe's argument. Section 2104(a)(1) makes a violating em- ployer liable to "each aggrieved employee" for backpay and 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT Cite as: 517 U. S. 544 (1996) 549 Opinion of the Court benefits for each day of the violation.3 Section 2104(a)(5) provides that "[a] person seeking to enforce such liability, including a representative of employees . . . aggrieved under paragraph (1) . . . , may sue either for such person or for other persons similarly situated, or both, [in an appropriate district court]." Since the union is the "representative of employees . . . aggrieved," it is a person who may sue on behalf of the "per- sons similarly situated" in order to "enforce such liability." "[S]uch liability" must refer to liability under § 2104, since its remedies are exclusive. See 29 U. S. C. § 2104(b). Be- cause the section makes no provision for liability to the union itself, any "such liability" sought by the union must (so far as concerns us here) be liability to its employee-members, so long as they can be understood to be "persons similarly situ- ated" for the purposes of the Act. We believe they may be so understood, since each is aggrieved by the employer's failure to give timely notice. Brown Shoe's alternative construction is unconvincing. It contends that a previous bill would have imposed civil liabil- ity on employers who failed to notify the union of a plant 3 102 Stat. 893, as set forth in 29 U. S. C. § 2104(a)(1): "Any employer who orders a plant closing or mass layoff in violation of section 2102 of this title shall be liable to each aggrieved employee who suffers an employment loss as a result of such closing or layoff for- "(A) back pay for each day of violation at a rate of compensation not less than the higher of- "(i) the average regular rate received by such employee during the last 3 years of the employee's employment; or "(ii) the final regular rate received by such employee; and "(B) benefits under an employee benefit plan . . . , including the cost of medical expenses incurred during the employment loss which would have been covered under an employee benefit plan if the employment loss had not occurred. "Such liability shall be calculated for the period of the violation, up to a maximum of 60 days, but in no event for more than one-half the number of days the employee was employed by the employer." 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT 550 FOOD AND COMMERCIAL WORKERS v. BROWN GROUP, INC. Opinion of the Court closing or mass layoff, and would have permitted the union to sue to recover a penalty where an employer failed to pro- vide the required notice. See S. 538, 100th Cong., 1st Sess. (1987). In the ultimately enacted version of the legislation, Congress eliminated this provision, with the result that the WARN Act no longer speaks to the "rights and welfare of unions," Brief for Respondent 12. Brown Shoe's argument is that the class of persons "similarly situated" is the class entitled to sue for damages, so that the elimination of the union's entitlement to a civil penalty requires the conclusion that the union is no longer "similarly situated" to "employees . . . aggrieved under paragraph (1)," and thus not permitted to sue under the Act. The flaw in this argument is that it would force us to con- clude that the provision for suits by unions is attributable only to congressional inadvertence, whereas inadvertence is not the only possible, or even plausible, explanation for the authorization. For one, the statutory reference to persons "similarly situated" can very readily be understood to mean the class of persons to whom notice is owed but not given. In this respect, the union and its members are certainly per- sons "similarly situated." Brown Shoe's argument also fails to explain why Congress would necessarily have intended to eliminate the union's power to sue on behalf of members (as Brown Shoe assumes the union could have done prior to the amendment) just because the union was no longer entitled to a penalty in its own right. The argument for Brown Shoe's preferred construction simply rests on one speculative possi- bility in opposing a straightforward reading of the provision that a union may bring suit on behalf of its members, who are "employees . . . aggrieved under paragraph (1)." Specu- lation loses, for the more natural reading of the statute's text, which would give effect to all of its provisions, always prevails over a mere suggestion to disregard or ignore duly enacted law as legislative oversight. 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT Cite as: 517 U. S. 544 (1996) 551 Opinion of the Court III This brings us to the primary question in the case: whether the union has standing to bring this action on behalf of its members.4 Article III of the Constitution limits the federal judicial power to "Cases" or "Controversies," thereby entailing as an "irreducible minimum" that there be (1) an injury in fact, (2) a causal relationship between the injury and the challenged conduct, and (3) a likelihood that the in- jury will be redressed by a favorable decision. See, e. g., Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 663 (1993); Valley Forge Christian College v. Americans United for Separa- tion of Church and State, Inc., 454 U. S. 464, 472 (1982). Supplementing these constitutional requirements, the pru- dential doctrine of standing has come to encompass "several judicially self-imposed limits on the exercise of federal juris- diction." See Allen v. Wright, 468 U. S. 737, 751 (1984); see also Flast v. Cohen, 392 U. S. 83, 97 (1968). The question here is whether a bar to the union's suit found in the test for so-called associational standing is constitutional and abso- lute, or prudential and malleable by Congress. A The notion that an organization might have standing to assert its members' injury has roots in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459 (1958), where the Court noted that for the purpose of determining the scope of the 4 The union also argues that it has standing because it suffered direct injury. The Court of Appeals held that the union lacked standing to as- sert its direct injury because neither backpay to the employees nor its "catch-all prayer for relief" would redress the union's injury. 50 F. 3d 1426, 1431, n. 7 (CA8 1995). The union argues here that its injury would be redressed because an award of damages to the employees would deter future violations and would facilitate the union's role in assisting its mem- bers. In light of our resolution of the associational standing question, we do not have occasion today to address this issue. 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT 552 FOOD AND COMMERCIAL WORKERS v. BROWN GROUP, INC. Opinion of the Court National Association for the Advancement of Colored Peo- ple's (NAACP's) rights as a litigant, the association "and its members are in every practical sense identical." The Court accordingly permitted the NAACP to rely on violations of its members' First Amendment associational rights in suing to bar the State of Alabama from compelling disclosure of the association's membership lists. See also Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 183­187 (1951) (Jackson, J., concurring); Barrows v. Jackson, 346 U. S. 249, 255­259 (1953); NAACP v. Button, 371 U. S. 415, 428 (1963); National Motor Freight Traffic Assn., Inc. v. United States, 372 U. S. 246, 247 (1963); Sierra Club v. Morton, 405 U. S. 727, 739 (1972). The modern doctrine of associational standing, under which an organization may sue to redress its members' in- juries, even without a showing of injury to the association itself, emerges from a trilogy of cases. We first squarely recognized an organization's standing to bring such a suit in Warth v. Seldin, 422 U. S. 490 (1975). "The association must allege that its members, or any one of them, are suffering immediate or threatened in- jury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. . . . [S]o long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispen- sable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction." Id., at 511. Warth's requirements for associational standing were elab- orated in Hunt. There we held that the Washington State Apple Advertising Commission, a state agency whose statu- tory charge was to promote the State's apple industry, had standing to bring a dormant Commerce Clause challenge to a North Carolina statute forbidding the display of Washington 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT Cite as: 517 U. S. 544 (1996) 553 Opinion of the Court State apple grades on apple containers. Relying on Warth, the Hunt Court stated a three-prong associational standing test: "[W]e have recognized that an association has standing to bring suit on behalf of its members when: (a) its mem- bers would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participa- tion of individual members in the lawsuit." 432 U. S., at 343. Finally, in Automobile Workers v. Brock, 477 U. S. 274 (1986), we held that a union had standing to challenge an agency's construction of a statute providing benefits to work- ers who lost their jobs because of competition from imports. The union there did not allege any injury to itself, nor was it argued that the members' associational rights were affected. Reaffirming and applying the three-part test emerging from Warth and Hunt, we held that the union had standing to bring the suit. 477 U. S., at 281­288. See also Pennell v. San Jose, 485 U. S. 1, 7, and n. 3 (1988). B The Court of Appeals here concluded that the union's members would have had standing to sue on their own (the first prong), and recognized that the interests the union sought to protect were germane to its purpose (the second prong). But it denied the union's claim of standing because it found that the relief sought by the union, damages on be- half of its members, would require the participation of indi- vidual members in the lawsuit. 50 F. 3d, at 1431. It relied on the statement in Warth that "[i]f in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT 554 FOOD AND COMMERCIAL WORKERS v. BROWN GROUP, INC. Opinion of the Court members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in as- sociations to represent their members, the relief sought has been of this kind." 422 U. S., at 515. These and later prec- edents have been understood to preclude associational stand- ing when an organization seeks damages on behalf of its members. See, e. g., Telecommunications Research & Ac- tion Center v. Allnet Communication Services, Inc., 806 F. 2d 1093, 1094­1095 (CADC 1986) ("[L]ower federal courts have consistently rejected association assertions of standing to seek monetary, as distinguished from injunctive or declar- atory, relief on behalf of the organization's members") (col- lecting cases).5 One court has suggested that this bar is of constitutional magnitude, see National Assn. of Realtors v. National Real Estate Assn., Inc., 894 F. 2d 937, 941 (CA7 1990) ("[A]ssocia- tions have been held to have standing under Article III of the Constitution to seek injunctive relief-but never dam- ages"). The Court of Appeals here apparently agreed with that suggestion, and so dismissed for lack of union standing despite the WARN Act's provision permitting the union to sue. We therefore take up the question whether the third prong of the associational standing enquiry is of constitu- tional character. C Although Warth noted that the test's first requirement, that at least one of the organization's members would have standing to sue on his own, is grounded on Article III as an element of "the constitutional requirement of a case or 5 United Food argues that "given the simplified nature of the monetary relief here provided," Brief for Petitioner 44, n. 17, the third prong of the Hunt test is satisfied despite its claim for damages. In light of our conclu- sion that in the WARN Act Congress has abrogated the third prong of the associational standing test, we need not decide here whether, absent congressional action, the third prong would bar a "simplified" claim for damages. 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT Cite as: 517 U. S. 544 (1996) 555 Opinion of the Court controversy," Warth, supra, at 511, our cases have not other- wise clearly disentangled the constitutional from the pruden- tial strands of the associational standing test. Cf. Valley Forge Christian College v. Americans United for Separa- tion of Church and State, Inc., 454 U. S., at 471 ("[I]t has not always been clear in the opinions of this Court whether particular features of the `standing' requirement have been required by Art. III ex proprio vigore, or whether they are requirements that the Court itself has erected and which were not compelled by the language of the Constitution"); June, The Structure of Standing Requirements for Citizen Suits and the Scope of Congressional Power, 24 Envtl. L. 761, 793 (1994) (noting uncertainty "whether requirements such as [associational] standing are constitutional or pru- dential in nature"). Resort to general principles, however, leads us to say that the associational standing test's third prong is a prudential one. There are two ways in which Hunt addresses the Article III requirements of injury in fact, causal connection to the defendant's conduct, and redressability. First and most ob- viously, it guarantees the satisfaction of these elements by requiring an organization suing as representative to include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association. As Hunt's most direct address to Article III standing, this first prong can only be seen as itself an Ar- ticle III necessity for an association's representative suit. Cf. Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 40 (1976) (the association "can establish standing only as representatives of those of their members who have been injured in fact, and thus could have brought suit in their own right"). Hunt's second prong is, at the least, comple- mentary to the first, for its demand that an association plain- tiff be organized for a purpose germane to the subject of its member's claim raises an assurance that the association's litigators will themselves have a stake in the resolution of 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT 556 FOOD AND COMMERCIAL WORKERS v. BROWN GROUP, INC. Opinion of the Court the dispute, and thus be in a position to serve as the defend- ant's natural adversary.6 But once an association has satis- fied Hunt's first and second prongs assuring adversarial vigor in pursuing a claim for which member Article III standing exists, it is difficult to see a constitutional necessity for anything more. See generally Lujan v. Defenders of Wildlife, 504 U. S. 555, 560­561 (1992). To see Hunt's third prong as resting on less than constitutional necessity is not, of course, to rob it of its value. It may well promote adver- sarial intensity. It may guard against the hazard of litigat- ing a case to the damages stage only to find the plaintiff lacking detailed records or the evidence necessary to show the harm with sufficient specificity. And it may hedge against any risk that the damages recovered by the associa- tion will fail to find their way into the pockets of the mem- bers on whose behalf injury is claimed. But these consider- ations are generally on point whenever one plaintiff sues for 6 Because the union is statutorily entitled to receive notice under the WARN Act, and because of the paramount role, under federal labor law, that unions play in protecting the interests of their members, it is clear that this test is satisfied here. We therefore need not decide whether this prong is prudential in the sense that Congress may definitively declare that a particular relation is sufficient. The germaneness of a suit to an association's purpose may, of course, satisfy a standing requirement without necessarily rendering the associa- tion's representation adequate to justify giving the association's suit pre- clusive effect as against an individual ostensibly represented. See gener- ally Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (1985); Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 395­399 (1996) (Ginsburg, J., concurring in part and dissenting in part). See also Automobile Work- ers v. Brock, 477 U. S. 274, 289 (1986) ("[A]n association might prove an inadequate representative of its members' legal interests for a number of reasons"); Note, Associational Standing and Due Process: The Need for an Adequate Representation Scrutiny, 61 B. U. L. Rev. 174 (1981). In this case, of course, no one disputes the adequacy of the union, selected by the employees following procedures governed by a detailed body of federal law and serving as the duly authorized collective-bargaining representa- tive of the employees, as an associational representative. See generally NLRB v. Gissel Packing Co., 395 U. S. 575 (1969). 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT Cite as: 517 U. S. 544 (1996) 557 Opinion of the Court another's injury. And although we noted in Flast that "a litigant will ordinarily not be permitted to assert the rights of absent third parties," 392 U. S., at 99, n. 20; see also Valley Forge, supra, at 474, we recognized in Allen v. Wright, 468 U. S., at 751, that "the general prohibition on a litigant's rais- ing another person's legal rights" is a "judicially self-imposed limi[t] on the exercise of federal jurisdiction," not a constitu- tional mandate. Indeed, the entire doctrine of "representa- tional standing," of which the notion of "associational stand- ing" is only one strand, rests on the premise that in certain circumstances, particular relationships (recognized either by common-law tradition 7 or by statute 8) are sufficient to rebut the background presumption (in the statutory context, about Congress's intent) that litigants may not assert the rights of absent third parties. Hence the third prong of the as- sociational standing test is best seen as focusing on these matters of administrative convenience and efficiency, not on elements of a case or controversy within the meaning of the Constitution. Circumstantial evidence of the prudential nature of this requirement is seen in the wide variety of other contexts in which a statute, federal rule, or accepted common-law prac- tice permits one person to sue on behalf of another, even where damages are sought. "[R]epresentative damages liti- gation is common-from class actions under Fed. R. Civ. P. 23(b)(3) to suits by trustees representing hundreds of credi- tors in bankruptcy to parens patriae actions by state gov- ernments to litigation by and against executors of decedents' estates." In re Oil Spill by the Amoco Cadiz off the Coast of France on Mar. 16, 1978, 954 F. 2d 1279, 1319 (CA7 1992) (per curiam). In addition, § 706(f)(1) of Title VII of the 7 See, e. g., Whitmore v. Arkansas, 495 U. S. 149 (1990) (recognizing a next-friend's standing). 8 See, e. g., Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., and the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U. S. C. § 201 et seq. 517US2$51M 02-04-99 20:35:04 PAGES OPINPGT 558 FOOD AND COMMERCIAL WORKERS v. BROWN GROUP, INC. Opinion of the Court Civil Rights Act of 1964, 42 U. S. C. § 2000e­5(f)(1), expressly authorizes the Equal Employment Opportunity Commission to sue for backpay on behalf of employees who are victims of employment discrimination, General Telephone Co. of Northwest v. EEOC, 446 U. S. 318 (1980), and the Fair Labor Standards Act of 1938, 29 U. S. C. § 201 et seq., contains a comparable provision permitting the Secretary of Labor to sue for the recovery of unpaid minimum wages and overtime compensation, 29 U. S. C. § 216(c). If these provisions for representative actions were generally resulting in nonad- versarial actions that failed to resolve the claims of the indi- viduals ultimately interested, their disservice to the core Article III requirements would be no secret. There is no reason to expect that union actions under the WARN Act portend any greater Article III incursions. D Because Congress authorized the union to sue for its mem- bers' damages, and because the only impediment to that suit is a general limitation, judicially fashioned and prudentially imposed, there is no question that Congress may abrogate the impediment. As we noted in Warth, prudential limita- tions are rules of "judicial self-governance" that "Congress may remove . . . by statute." 422 U. S., at 509. It has done so without doubt in this instance. * * * The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. 517US2$52Z 02-07-99 18:49:46 PAGES OPINPGT OCTOBER TERM, 1995 559 Syllabus BMW OF NORTH AMERICA, INC. v. GORE certiorari to the supreme court of alabama No. 94­896. Argued October 11, 1995-Decided May 20, 1996 After respondent Gore purchased a new BMW automobile from an author- ized Alabama dealer, he discovered that the car had been repainted. He brought this suit for compensatory and punitive damages against petitioner, the American distributor of BMW's, alleging, inter alia, that the failure to disclose the repainting constituted fraud under Alabama law. At trial, BMW acknowledged that it followed a nationwide policy of not advising its dealers, and hence their customers, of predelivery damage to new cars when the cost of repair did not exceed 3 percent of the car's suggested retail price. Gore's vehicle fell into that category. The jury returned a verdict finding BMW liable for compensatory dam- ages of $4,000, and assessing $4 million in punitive damages. The trial judge denied BMW's post-trial motion to set aside the punitive damages award, holding, among other things, that the award was not "grossly excessive" and thus did not violate the Due Process Clause of the Four- teenth Amendment. See, e. g., TXO Production Corp. v. Alliance Re- sources Corp., 509 U. S. 443, 454. The Alabama Supreme Court agreed, but reduced the award to $2 million on the ground that, in computing the amount, the jury had improperly multiplied Gore's compensatory damages by the number of similar sales in all States, not just those in Alabama. Held: The $2 million punitive damages award is grossly excessive and therefore exceeds the constitutional limit. Pp. 568­586. (a) Because such an award violates due process only when it can fairly be categorized as "grossly excessive" in relation to the State's legitimate interests in punishing unlawful conduct and deterring its repetition, cf. TXO, 509 U. S., at 456, the federal excessiveness inquiry appropriately begins with an identification of the state interests that such an award is designed to serve. Principles of state sovereignty and comity forbid a State to enact policies for the entire Nation, or to impose its own policy choice on neighboring States. See, e. g., Healy v. Beer Institute, 491 U. S. 324, 335­336. Accordingly, the economic penalties that a State inflicts on those who transgress its laws, whether the penalties are legis- latively authorized fines or judicially imposed punitive damages, must be supported by the State's interest in protecting its own consumers and economy, rather than those of other States or the entire Nation. Gore's award must therefore be analyzed in the light of conduct that 517US2$52Z 02-07-99 18:49:46 PAGES OPINPGT 560 BMW OF NORTH AMERICA, INC. v. GORE Syllabus occurred solely within Alabama, with consideration being given only to the interests of Alabama consumers. Pp. 568­574. (b) Elementary notions of fairness enshrined in this Court's constitu- tional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a State may impose. Three guideposts, each of which indicates that BMW did not receive adequate notice of the magni- tude of the sanction that Alabama might impose, lead to the conclusion that the $2 million award is grossly excessive. Pp. 574­575. (c) None of the aggravating factors associated with the first (and per- haps most important) indicium of a punitive damages award's excessive- ness-the degree of reprehensibility of the defendant's conduct, see, e. g., Day v. Woodworth, 13 How. 363, 371-is present here. The harm BMW inflicted on Gore was purely economic; the presale repainting had no effect on the car's performance, safety features, or appearance; and BMW's conduct evinced no indifference to or reckless disregard for the health and safety of others. Gore's contention that BMW's nondisclo- sure was particularly reprehensible because it formed part of a nation- wide pattern of tortious conduct is rejected, because a corporate execu- tive could reasonably have interpreted the relevant state statutes as establishing safe harbors for nondisclosure of presumptively minor re- pairs, and because there is no evidence either that BMW acted in bad faith when it sought to establish the appropriate line between minor damage and damage requiring disclosure to purchasers, or that it per- sisted in its course of conduct after it had been adjudged unlawful. Fi- nally, there is no evidence that BMW engaged in deliberate false state- ments, acts of affirmative misconduct, or concealment of evidence of improper motive. Pp. 575­580. (d) The second (and perhaps most commonly cited) indicium of exces- siveness-the ratio between the plaintiff's compensatory damages and the amount of the punitive damages, see, e. g., TXO, 509 U. S., at 459- also weighs against Gore, because his $2 million award is 500 times the amount of his actual harm as determined by the jury, and there is no suggestion that he or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure policy. Al- though it is not possible to draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case, see, e. g., id., at 458, the ratio here is clearly outside the acceptable range. Pp. 580­583. (e) Gore's punitive damages award is not saved by the third relevant indicium of excessiveness-the difference between it and the civil or criminal sanctions that could be imposed for comparable misconduct, see, e. g., Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 23-because 517US2$52Z 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 561 Syllabus $2 million is substantially greater than Alabama's applicable $2,000 fine and the penalties imposed in other States for similar malfeasance, and because none of the pertinent statutes or interpretive decisions would have put an out-of-state distributor on notice that it might be subject to a multimillion dollar sanction. Moreover, in the absence of a BMW his- tory of noncompliance with known statutory requirements, there is no basis for assuming that a more modest sanction would not have been sufficient. Pp. 583­585. (f) Thus, BMW's conduct was not sufficiently egregious to justify the severe punitive sanction imposed against it. Whether the appropriate remedy requires a new trial or merely an independent determination by the Alabama Supreme Court of the award necessary to vindicate Ala- bama consumers' economic interests is a matter for that court to address in the first instance. Pp. 585­586. 646 So. 2d 619, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, and Breyer, JJ., joined. Breyer, J., filed a concur- ring opinion, in which O'Connor and Souter, JJ., joined, post, p. 586. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 598. Ginsburg, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 607. Andrew L. Frey argued the cause for petitioner. With him on the briefs were Kenneth S. Geller, Evan M. Tager, Michael C. Quillen, Dennis J. Helfman, and David Cordero. Michael H. Gottesman argued the cause for respondent. With him on the brief were Jonathan S. Massey, Andrew W. Bolt II, John W. Haley, Bruce J. McKee, Kenneth J. Chese- bro, and Stephen K. Wollstein.* *Briefs of amici curiae urging reversal were filed for the American Automobile Manufacturers Association et al. by Kenneth W. Starr, Paul T. Cappuccio, Christopher Landau, Richard A. Cordray, and Phillip D. Brady; for the American Council of Life Insurance et al. by Patricia A. Dunn, Stephen J. Goodman, Phillip E. Stano, and Theresa L. Sorota; for the American Tort Reform Association et al. by Victor E. Schwartz, Scott L. Winkelman, Sherman Joyce, and Fred J. Hiestand; for the Business Council of Alabama by Forrest S. Latta; for the Center for Claims Resolu- tion by John D. Aldock and Frederick C. Schafrick; for the Chamber of Commerce of the United States of America by Timothy B. Dyk, Stephen A. Bokat, and Robin S. Conrad; for the Farmers Insurance Exchange 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 562 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court Justice Stevens delivered the opinion of the Court. The Due Process Clause of the Fourteenth Amendment prohibits a State from imposing a " `grossly excessive' " pun- ishment on a tortfeasor. TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 454 (1993) (and cases cited). The wrongdoing involved in this case was the decision by a national distributor of automobiles not to advise its dealers, and hence their customers, of predelivery damage to new cars when the cost of repair amounted to less than 3 percent of the car's suggested retail price. The question presented et al. by Irving H. Greines, Robin Meadow, Barbara W. Ravitz, and Rob- ert A. Olson; for the Life Insurance Company of Georgia et al. by Theo- dore B. Olson, Larry L. Simms, Theodore J. Boutrous, Jr., John K. Bush, Theodore J. Fischkin, and Marcus Bergh; for the National Association of Manufacturers by Carter G. Phillips and Jan Amundson; for the New England Council et al. by Stephen S. Ostrach; for Owens-Corning Fiber- glas Corporation by Charles Fried, Michael W. Schwartz, and Karen I. Ward; for Owens-Illinois, Inc., by Griffin B. Bell and David L. Gray; for Pharmaceutical Research and Manufacturers of America by Andrew T. Berry; for the Product Liability Advisory Council, Inc., et al. by Malcolm E. Wheeler; for the TIG Insurance Company by Ellis J. Horvitz, Barry R. Levy, Frederic D. Cohen, and Mitchell C. Tilner; and for the Washington Legal Foundation et al. by Arvin Maskin, Steven Alan Reiss, Katherine Oberlies, Daniel J. Popeo, and Paul D. Kamenar. Briefs of amici curiae urging affirmance were filed for the Alabama Trial Lawyers Association by Russell J. Drake; for the Association of Trial Lawyers of America by Jeffrey Robert White, Cheryl Flax-Davidson, and Larry S. Stewart; and for the National Association of Securities and Com- mercial Law Attorneys by Kevin P. Roddy, James P. Solimano, Steve W. Berman, and Jonathan W. Cuneo. Briefs of amici curiae were filed for CBS, Inc., et al. by P. Cameron DeVore, Marshall J. Nelson, Douglas P. Jacobs, Jonathan E. Thackeray, John C. Fontaine, Cristina L. Mendoza, William A. Niese, Karlene Gol- ler, Susan Weiner, Richard M. Schmidt, Jr., R. Bruce Rich, Slade R. Met- calf, Jane E. Kirtley, Bruce W. Sanford, and Henry S. Hoberman; for Trial Lawyers for Public Justice, P. C., by Leslie A. Brueckner and Arthur H. Bryant; for Richard L. Blatt et al. by Mr. Blatt, pro se, and Robert W. Hammesfahr, pro se; for James D. A. Boyle et al. by Arthur F. McEvoy III, pro se; and for Law and Economics Scholars et al. by Mark M. Hager, pro se. 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 563 Opinion of the Court is whether a $2 million punitive damages award to the pur- chaser of one of these cars exceeds the constitutional limit. I In January 1990, Dr. Ira Gore, Jr. (respondent), purchased a black BMW sports sedan for $40,750.88 from an authorized BMW dealer in Birmingham, Alabama. After driving the car for approximately nine months, and without noticing any flaws in its appearance, Dr. Gore took the car to "Slick Fin- ish," an independent detailer, to make it look " `snazzier than it normally would appear.' " 646 So. 2d 619, 621 (Ala. 1994). Mr. Slick, the proprietor, detected evidence that the car had been repainted.1 Convinced that he had been cheated, Dr. Gore brought suit against petitioner BMW of North America (BMW), the American distributor of BMW automobiles.2 Dr. Gore alleged, inter alia, that the failure to disclose that the car had been repainted constituted suppression of a ma- terial fact.3 The complaint prayed for $500,000 in compensa- tory and punitive damages, and costs. At trial, BMW acknowledged that it had adopted a nation- wide policy in 1983 concerning cars that were damaged in the course of manufacture or transportation. If the cost of repairing the damage exceeded 3 percent of the car's sug- 1 The top, hood, trunk, and quarter panels of Dr. Gore's car were re- painted at BMW's vehicle preparation center in Brunswick, Georgia. The parties presumed that the damage was caused by exposure to acid rain during transit between the manufacturing plant in Germany and the preparation center. 2 Dr. Gore also named the German manufacturer and the Birmingham dealership as defendants. 3 Alabama codified its common-law cause of action for fraud in a 1907 statute that is still in effect. Hackmeyer v. Hackmeyer, 268 Ala. 329, 333, 106 So. 2d 245, 249 (1958). The statute provides: "Suppression of a mate- rial fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential re- lations of the parties or from the particular circumstances of the case." Ala. Code § 6­5­102 (1993); see Ala. Code § 4299 (1907). 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 564 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court gested retail price, the car was placed in company service for a period of time and then sold as used. If the repair cost did not exceed 3 percent of the suggested retail price, however, the car was sold as new without advising the dealer that any repairs had been made. Because the $601.37 cost of repainting Dr. Gore's car was only about 1.5 percent of its suggested retail price, BMW did not disclose the damage or repair to the Birmingham dealer. Dr. Gore asserted that his repainted car was worth less than a car that had not been refinished. To prove his actual damages of $4,000, he relied on the testimony of a former BMW dealer, who estimated that the value of a repainted BMW was approximately 10 percent less than the value of a new car that had not been damaged and repaired.4 To sup- port his claim for punitive damages, Dr. Gore introduced evi- dence that since 1983 BMW had sold 983 refinished cars as new, including 14 in Alabama, without disclosing that the cars had been repainted before sale at a cost of more than $300 per vehicle.5 Using the actual damage estimate of $4,000 per vehicle, Dr. Gore argued that a punitive award of $4 million would provide an appropriate penalty for selling approximately 1,000 cars for more than they were worth. In defense of its disclosure policy, BMW argued that it was under no obligation to disclose repairs of minor damage to new cars and that Dr. Gore's car was as good as a car with the original factory finish. It disputed Dr. Gore's assertion that the value of the car was impaired by the repainting and argued that this good-faith belief made a punitive award inappropriate. BMW also maintained that transactions in jurisdictions other than Alabama had no relevance to Dr. Gore's claim. 4 The dealer who testified to the reduction in value is the former owner of the Birmingham dealership sued in this action. He sold the dealership approximately one year before the trial. 5 Dr. Gore did not explain the significance of the $300 cutoff. 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 565 Opinion of the Court The jury returned a verdict finding BMW liable for com- pensatory damages of $4,000. In addition, the jury assessed $4 million in punitive damages, based on a determination that the nondisclosure policy constituted "gross, oppressive or malicious" fraud.6 See Ala. Code §§ 6­11­20, 6­11­21 (1993). BMW filed a post-trial motion to set aside the punitive damages award. The company introduced evidence to es- tablish that its nondisclosure policy was consistent with the laws of roughly 25 States defining the disclosure obligations of automobile manufacturers, distributors, and dealers. The most stringent of these statutes required disclosure of re- pairs costing more than 3 percent of the suggested retail price; none mandated disclosure of less costly repairs.7 Re- lying on these statutes, BMW contended that its conduct was lawful in these States and therefore could not provide the basis for an award of punitive damages. BMW also drew the court's attention to the fact that its nondisclosure policy had never been adjudged unlawful be- fore this action was filed. Just months before Dr. Gore's case went to trial, the jury in a similar lawsuit filed by an- other Alabama BMW purchaser found that BMW's failure to disclose paint repair constituted fraud. Yates v. BMW of North America, Inc., 642 So. 2d 937 (Ala. 1993).8 Before the 6 The jury also found the Birmingham dealership liable for Dr. Gore's compensatory damages and the German manufacturer liable for both the compensatory and punitive damages. The dealership did not appeal the judgment against it. The Alabama Supreme Court held that the trial court did not have jurisdiction over the German manufacturer and there- fore reversed the judgment against that defendant. 7 BMW acknowledged that a Georgia statute enacted after Dr. Gore pur- chased his car would require disclosure of similar repairs to a car before it was sold in Georgia. Ga. Code Ann. §§ 40­1­5(b)­(e) (1994). 8 While awarding a comparable amount of compensatory damages, the Yates jury awarded no punitive damages at all. In Yates, the plaintiff also relied on the 1983 nondisclosure policy, but instead of offering evidence of 983 repairs costing more than $300 each, he introduced a bulk exhibit 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 566 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court judgment in this case, BMW changed its policy by taking steps to avoid the sale of any refinished vehicles in Alabama and two other States. When the $4 million verdict was re- turned in this case, BMW promptly instituted a nationwide policy of full disclosure of all repairs, no matter how minor. In response to BMW's arguments, Dr. Gore asserted that the policy change demonstrated the efficacy of the punitive damages award. He noted that while no jury had held the policy unlawful, BMW had received a number of customer complaints relating to undisclosed repairs and had settled some lawsuits.9 Finally, he maintained that the disclosure statutes of other States were irrelevant because BMW had failed to offer any evidence that the disclosure statutes sup- planted, rather than supplemented, existing causes of action for common-law fraud. The trial judge denied BMW's post-trial motion, holding, inter alia, that the award was not excessive. On appeal, the Alabama Supreme Court also rejected BMW's claim that the award exceeded the constitutionally permissible amount. 646 So. 2d 619 (1994). The court's excessiveness inquiry ap- plied the factors articulated in Green Oil Co. v. Hornsby, 539 So. 2d 218, 223­224 (Ala. 1989), and approved in Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 21­22 (1991). 646 So. 2d, at 624­625. Based on its analysis, the court concluded that BMW's conduct was "reprehensible"; the nondisclosure was profitable for the company; the judgment "would not have a substantial impact upon [BMW's] financial position"; the litigation had been expensive; no criminal sanctions had been imposed on BMW for the same conduct; the award of no pu- containing 5,856 repair bills to show that petitioner had sold over 5,800 new BMW vehicles without disclosing that they had been repaired. 9 Prior to the lawsuits filed by Dr. Yates and Dr. Gore, BMW and various BMW dealers had been sued 14 times concerning presale paint or damage repair. According to the testimony of BMW's in-house counsel at the postjudgment hearing on damages, only one of the suits concerned a car repainted by BMW. 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 567 Opinion of the Court nitive damages in Yates reflected "the inherent uncertainty of the trial process"; and the punitive award bore a "reason- able relationship" to "the harm that was likely to occur from [BMW's] conduct as well as . . . the harm that actually oc- curred." 646 So. 2d, at 625­627. The Alabama Supreme Court did, however, rule in BMW's favor on one critical point: The court found that the jury improperly computed the amount of punitive damages by multiplying Dr. Gore's compensatory damages by the num- ber of similar sales in other jurisdictions. Id., at 627. Hav- ing found the verdict tainted, the court held that "a constitu- tionally reasonable punitive damages award in this case is $2,000,000," id., at 629, and therefore ordered a remittitur in that amount.10 The court's discussion of the amount of its remitted award expressly disclaimed any reliance on "acts that occurred in other jurisdictions"; instead, the court ex- plained that it had used a "comparative analysis" that consid- ered Alabama cases, "along with cases from other jurisdic- tions, involving the sale of an automobile where the seller misrepresented the condition of the vehicle and the jury awarded punitive damages to the purchaser." 11 Id., at 628. 10 The Alabama Supreme Court did not indicate whether the $2 million figure represented the court's independent assessment of the appropriate level of punitive damages, or its determination of the maximum amount that the jury could have awarded consistent with the Due Process Clause. 11 Other than Yates v. BMW of North America, Inc., 642 So. 2d 937 (1993), in which no punitive damages were awarded, the Alabama Supreme Court cited no such cases. In another portion of its opinion, 646 So. 2d, at 629, the court did cite five Alabama cases, none of which involved either a dispute arising out of the purchase of an automobile or an award of punitive damages. G. M. Mosley Contractors, Inc. v. Phillips, 487 So. 2d 876, 879 (1986); Hollis v. Wyrosdick, 508 So. 2d 704 (1987); Campbell v. Burns, 512 So. 2d 1341, 1343 (1987); Ashbee v. Brock, 510 So. 2d 214 (1987); and Jawad v. Granade, 497 So. 2d 471 (1986). All of these cases support the proposition that appellate courts in Alabama presume that jury verdicts are correct. In light of the Alabama Supreme Court's con- clusion that (1) the jury had computed its award by multiplying $4,000 by the number of refinished vehicles sold in the United States and 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 568 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court Because we believed that a review of this case would help to illuminate "the character of the standard that will identify unconstitutionally excessive awards" of punitive damages, see Honda Motor Co. v. Oberg, 512 U. S. 415, 420 (1994), we granted certiorari, 513 U. S. 1125 (1995). II Punitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition. Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974); Newport v. Fact Concerts, Inc., 453 U. S. 247, 266­267 (1981); Haslip, 499 U. S., at 22. In our federal system, States necessarily have considerable flexibil- ity in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. Most States that authorize exemplary damages afford the jury similar latitude, requiring only that the damages awarded be reasonably necessary to vindicate the State's le- gitimate interests in punishment and deterrence. See TXO, 509 U. S., at 456; Haslip, 499 U. S., at 21, 22. Only when an award can fairly be categorized as "grossly excessive" in relation to these interests does it enter the zone of arbitrari- ness that violates the Due Process Clause of the Fourteenth Amendment. Cf. TXO, 509 U. S., at 456. For that reason, the federal excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve. We therefore focus our attention first on the scope of Alabama's legitimate interests in punishing BMW and deterring it from future misconduct. No one doubts that a State may protect its citizens by prohibiting deceptive trade practices and by requiring auto- (2) that the award should have been based on Alabama conduct, respect for the error-free portion of the jury verdict would seem to produce an award of $56,000 ($4,000 multiplied by 14, the number of repainted vehicles sold in Alabama). 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 569 Opinion of the Court mobile distributors to disclose presale repairs that affect the value of a new car. But the States need not, and in fact do not, provide such protection in a uniform manner. Some States rely on the judicial process to formulate and enforce an appropriate disclosure requirement by applying principles of contract and tort law.12 Other States have enacted vari- ous forms of legislation that define the disclosure obligations of automobile manufacturers, distributors, and dealers.13 12 See, e. g., Rivers v. BMW of North America, Inc., 214 Ga. App. 880, 449 S. E. 2d 337 (1994) (nondisclosure of presale paint repairs that occurred before state disclosure statute enacted); Wedmore v. Jordan Motors, Inc., 589 N. E. 2d 1180 (Ind. App. 1992) (same). 13 Four States require disclosure of vehicle repairs costing more than 3 percent of suggested retail price. Ariz. Rev. Stat. Ann. § 28­1304.03 (1989); N. C. Gen. Stat. § 20­305.1(d)(5a) (1995); S. C. Code § 56­32­20 (Supp. 1995); Va. Code Ann. § 46.2­1571(D) (Supp. 1995). An additional three States mandate disclosure when the cost of repairs exceeds 3 percent or $500, whichever is greater. Ala. Code § 8­19­5(22)(c) (1993); Cal. Veh. Code Ann. §§ 9990­9991 (West Supp. 1996); Okla. Stat., Tit. 47, § 1112.1 (1991). Indiana imposes a 4 percent disclosure threshold. Ind. Code §§ 9­23­4­4, 9­23­4­5 (1993). Minnesota requires disclosure of repairs costing more than 4 percent of suggested retail price or $500, whichever is greater. Minn. Stat. § 325F.664 (1994). New York requires disclosure when the cost of repairs exceeds 5 percent of suggested retail price. N. Y. Gen. Bus. Law §§ 396­p(5)(a), (d) (McKinney Supp. 1996). Vermont im- poses a 5 percent disclosure threshold for the first $10,000 in repair costs and 2 percent thereafter. Vt. Stat. Ann., Tit. 9, § 4087(d) (1993). Eleven States mandate disclosure only of damage costing more than 6 percent of retail value to repair. Ark. Code Ann. § 23­112­705 (1992); Idaho Code § 49­1624 (1994); Ill. Comp. Stat., ch. 815, § 710/5 (1994); Ky. Rev. Stat. Ann. § 190.0491(5) (Baldwin 1988); La. Rev. Stat. Ann. § 32:1260 (West Supp. 1995); Miss. Motor Vehicle Comm'n, Regulation No. 1 (1992); N. H. Rev. Stat. Ann. § 357­C:5(III)(d) (1995); Ohio Rev. Code Ann. § 4517.61 (1994); R. I. Gen. Laws §§ 31­5.1­18(d), (f) (1995); Wis. Stat. § 218.01(2d)(a) (1994); Wyo. Stat. § 31­16­115 (1994). Two States require disclosure of repairs costing $3,000 or more. See Iowa Code Ann. § 321.69 (Supp. 1996); N. D. Admin. Code § 37­09­01­01 (1992). Georgia mandates disclosure of paint damage that costs more than $500 to repair. Ga. Code Ann. §§ 40­1­ 5(b)­(e) (1994) (enacted after respondent purchased his car). Florida re- 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 570 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court The result is a patchwork of rules representing the diverse policy judgments of lawmakers in 50 States. That diversity demonstrates that reasonable people may disagree about the value of a full disclosure requirement. Some legislatures may conclude that affirmative disclosure requirements are unnecessary because the self-interest of those involved in the automobile trade in developing and maintaining the goodwill of their customers will motivate them to make voluntary disclosures or to refrain from selling cars that do not comply with self-imposed standards. Those legislatures that do adopt affirmative disclosure obligations may take into account the cost of government regulation, choosing to draw a line exempting minor repairs from such a requirement. In formulating a disclosure standard, States may also consider other goals, such as providing a "safe har- bor" for automobile manufacturers, distributors, and dealers against lawsuits over minor repairs.14 We may assume, arguendo, that it would be wise for every State to adopt Dr. Gore's preferred rule, requiring full disclo- sure of every presale repair to a car, no matter how trivial and regardless of its actual impact on the value of the car. quires dealers to disclose paint repair costing more than $100 of which they have actual knowledge. Fla. Stat. § 320.27(9)(n) (1992). Oregon re- quires manufacturers to disclose all "postmanufacturing" damage and re- pairs. It is unclear whether this mandate would apply to repairs such as those at issue here. Ore. Rev. Stat. § 650.155 (1991). Many, but not all, of the statutes exclude from the computation of repair cost the value of certain components-typically items such as glass, tires, wheels and bumpers-when they are replaced with identical manufactur- er's original equipment. E. g., Cal. Veh. Code Ann. §§ 9990­9991 (West Supp. 1996); Ga. Code Ann. §§ 40­1­5(b)­(e) (1994); Ill. Comp. Stat., ch. 815, § 710/5 (1994); Ky. Rev. Stat. Ann. § 190.0491(5) (Baldwin 1988); Okla. Stat., Tit. 47, § 1112.1 (1991); Va. Code Ann. § 46.2­1571(D) (Supp. 1995); Vt. Stat. Ann., Tit. 9, § 4087(d) (1993). 14 Also, a state legislature might plausibly conclude that the administra- tive costs associated with full disclosure would have the effect of raising car prices to the State's residents. 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 571 Opinion of the Court But while we do not doubt that Congress has ample author- ity to enact such a policy for the entire Nation,15 it is clear that no single State could do so, or even impose its own pol- icy choice on neighboring States. See Bonaparte v. Tax Court, 104 U. S. 592, 594 (1881) ("No State can legislate except with reference to its own jurisdiction. . . . Each State is independent of all the others in this particular").16 Simi- larly, one State's power to impose burdens on the interstate market for automobiles is not only subordinate to the federal power over interstate commerce, Gibbons v. Ogden, 9 Wheat. 1, 194­196 (1824), but is also constrained by the need to re- spect the interests of other States, see, e. g., Healy v. Beer Institute, 491 U. S. 324, 335­336 (1989) (the Constitution has a "special concern both with the maintenance of a national economic union unfettered by state-imposed limitations on 15 Federal disclosure requirements are, of course, a familiar part of our law. See, e. g., the Federal Food, Drug, and Cosmetic Act, as added by the Nutrition Labeling and Education Act of 1990, 104 Stat. 2353, 21 U. S. C. § 343; the Truth In Lending Act, 82 Stat. 148, as amended, 15 U. S. C. § 1604; the Securities Exchange Act of 1934, 48 Stat. 892, 894, as amended, 15 U. S. C. §§ 78l­78m; Federal Cigarette Labeling and Advertis- ing Act, 79 Stat. 283, as amended, 15 U. S. C. § 1333; Alcoholic Beverage Labeling Act of 1988, 102 Stat. 4519, 27 U. S. C. § 215. 16 See also Bigelow v. Virginia, 421 U. S. 809, 824 (1975) ("A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State"); New York Life Ins. Co. v. Head, 234 U. S. 149, 161 (1914) ("[I]t would be impossible to permit the statutes of Mis- souri to operate beyond the jurisdiction of that State . . . without throwing down the constitutional barriers by which all the States are restricted within the orbits of their lawful authority and upon the preservation of which the Government under the Constitution depends. This is so obvi- ously the necessary result of the Constitution that it has rarely been called in question and hence authorities directly dealing with it do not abound"); Huntington v. Attrill, 146 U. S. 657, 669 (1892) ("Laws have no force of themselves beyond the jurisdiction of the State which enacts them, and can have extra-territorial effect only by the comity of other States"). 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 572 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court interstate commerce and with the autonomy of the individual States within their respective spheres" (footnote omitted)); Edgar v. MITE Corp., 457 U. S. 624, 643 (1982). We think it follows from these principles of state sover- eignty and comity that a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors' lawful conduct in other States.17 Before this Court Dr. Gore argued that the large punitive damages award was necessary to induce BMW to change the nation- wide policy that it adopted in 1983.18 But by attempting to alter BMW's nationwide policy, Alabama would be infringing on the policy choices of other States. To avoid such en- croachment, the economic penalties that a State such as Ala- bama inflicts on those who transgress its laws, whether the penalties take the form of legislatively authorized fines or judicially imposed punitive damages, must be supported by the State's interest in protecting its own consumers and its own economy. Alabama may insist that BMW adhere to a particular disclosure policy in that State. Alabama does not 17 State power may be exercised as much by a jury's application of a state rule of law in a civil lawsuit as by a statute. See New York Times Co. v. Sullivan, 376 U. S. 254, 265 (1964) ("The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised"); San Diego Building Trades Council v. Garmon, 359 U. S. 236, 247 (1959) ("[R]egulation can be as effectively exerted through an award of damages as through some form of preven- tive relief"). 18 Brief for Respondent 11­12, 23, 27­28; Tr. of Oral Arg. 50­54. Dr. Gore's interest in altering the nationwide policy stems from his concern that BMW would not (or could not) discontinue the policy in Alabama alone. Brief for Respondent 11. "If Alabama were limited to imposing punitive damages based only on BMW's gain from fraudulent sales in Ala- bama, the resulting award would have no prospect of protecting Alabama consumers from fraud, as it would provide no incentive for BMW to alter the unitary, national policy of nondisclosure which yielded BMW millions of dollars in profits." Id., at 23. The record discloses no basis for Dr. Gore's contention that BMW could not comply with Alabama's law without changing its nationwide policy. 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 573 Opinion of the Court have the power, however, to punish BMW for conduct that was lawful where it occurred and that had no impact on Ala- bama or its residents.19 Nor may Alabama impose sanctions on BMW in order to deter conduct that is lawful in other jurisdictions. In this case, we accept the Alabama Supreme Court's in- terpretation of the jury verdict as reflecting a computation of the amount of punitive damages "based in large part on conduct that happened in other jurisdictions." 646 So. 2d, at 627. As the Alabama Supreme Court noted, neither the jury nor the trial court was presented with evidence that any of BMW's out-of-state conduct was unlawful. "The only testimony touching the issue showed that approximately 60% of the vehicles that were refinished were sold in states where failure to disclose the repair was not an unfair trade prac- tice." Id., at 627, n. 6.20 The Alabama Supreme Court therefore properly eschewed reliance on BMW's out-of-state conduct, id., at 628, and based its remitted award solely on 19 See Bordenkircher v. Hayes, 434 U. S. 357, 363 (1978) ("To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort"). Our cases concerning recidivist statutes are not to the contrary. Habitual offender statutes permit the sentencing court to enhance a defendant's punishment for a crime in light of prior convictions, including convictions in foreign jurisdictions. See e. g., Ala. Code § 13A­5­9 (1994); Cal. Penal Code Ann. §§ 667.5(f), 668 (West Supp. 1996); Ill. Comp. Stat., ch. 720, § 5/33B­1 (1994); N. Y. Penal Law §§ 70.04, 70.06, 70.08, 70.10 (McKinney 1987 and Supp. 1996); Tex. Penal Code Ann. § 12.42 (1994 and Supp. 1995­1996). A sentencing judge may even consider past criminal behavior which did not result in a convic- tion and lawful conduct that bears on the defendant's character and pros- pects for rehabilitation. Williams v. New York, 337 U. S. 241 (1949). But we have never held that a sentencing court could properly punish lawful conduct. This distinction is precisely the one we draw here. See n. 21, infra. 20 Given that the verdict was based in part on out-of-state conduct that was lawful where it occurred, we need not consider whether one State may properly attempt to change a tortfeasor's unlawful conduct in an- other State. 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 574 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court conduct that occurred within Alabama.21 The award must be analyzed in the light of the same conduct, with consider- ation given only to the interests of Alabama consumers, rather than those of the entire Nation. When the scope of the interest in punishment and deterrence that an Alabama court may appropriately consider is properly limited, it is apparent-for reasons that we shall now address-that this award is grossly excessive. III Elementary notions of fairness enshrined in our constitu- tional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may im- pose.22 Three guideposts, each of which indicates that BMW did not receive adequate notice of the magnitude of the sanc- tion that Alabama might impose for adhering to the nondis- closure policy adopted in 1983, lead us to the conclusion that 21 Of course, the fact that the Alabama Supreme Court correctly con- cluded that it was error for the jury to use the number of sales in other States as a multiplier in computing the amount of its punitive sanction does not mean that evidence describing out-of-state transactions is irrele- vant in a case of this kind. To the contrary, as we stated in TXO Produc- tion Corp. v. Alliance Resources Corp., 509 U. S. 443, 462, n. 28 (1993), such evidence may be relevant to the determination of the degree of repre- hensibility of the defendant's conduct. 22 See Miller v. Florida, 482 U. S. 423 (1987) (Ex Post Facto Clause violated by retroactive imposition of revised sentencing guidelines that provided longer sentence for defendant's crime); Bouie v. City of Colum- bia, 378 U. S. 347 (1964) (retroactive application of new construction of statute violated due process); id., at 350­355 (citing cases); Lankford v. Idaho, 500 U. S. 110 (1991) (due process violated because defendant and his counsel did not have adequate notice that judge might impose death sentence). The strict constitutional safeguards afforded to criminal de- fendants are not applicable to civil cases, but the basic protection against "judgments without notice" afforded by the Due Process Clause, Shaffer v. Heitner, 433 U. S. 186, 217 (1977) (Stevens, J., concurring in judgment), is implicated by civil penalties. 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 575 Opinion of the Court the $2 million award against BMW is grossly excessive: the degree of reprehensibility of the nondisclosure; the disparity between the harm or potential harm suffered by Dr. Gore and his punitive damages award; and the difference between this remedy and the civil penalties authorized or imposed in comparable cases. We discuss these considerations in turn. Degree of Reprehensibility Perhaps the most important indicium of the reasonable- ness of a punitive damages award is the degree of reprehen- sibility of the defendant's conduct.23 As the Court stated nearly 150 years ago, exemplary damages imposed on a defendant should reflect "the enormity of his offense." Day v. Woodworth, 13 How. 363, 371 (1852). See also St. Louis, I. M. & S. R. Co. v. Williams, 251 U. S. 63, 66­67 (1919) (punitive award may not be "wholly disproportioned to the offense"); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 301 (1989) (O'Connor, J., con- curring in part and dissenting in part) (reviewing court "should examine the gravity of the defendant's conduct and the harshness of the award of punitive damages").24 This principle reflects the accepted view that some wrongs are more blameworthy than others. Thus, we have said that 23 "The flagrancy of the misconduct is thought to be the primary consid- eration in determining the amount of punitive damages." Owen, A Puni- tive Damages Overview: Functions, Problems and Reform, 39 Vill. L. Rev. 363, 387 (1994). 24 The principle that punishment should fit the crime "is deeply rooted and frequently repeated in common-law jurisprudence." Solem v. Helm, 463 U. S. 277, 284 (1983). See Burkett v. Lanata, 15 La. Ann. 337, 339 (1860) (punitive damages should be "commensurate to the nature of the offence"); Blanchard v. Morris, 15 Ill. 35, 36 (1853) ("[W]e cannot say [the exemplary damages] are excessive under the circumstances; for the proofs show that threats, violence, and imprisonment, were accompanied by men- tal fear, torture, and agony of mind"); Louisville & Northern R. Co. v. Brown, 127 Ky. 732, 749, 106 S. W. 795, 799 (1908) ("We are not aware of any case in which the court has sustained a verdict as large as this one unless the injuries were permanent"). 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 576 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court "nonviolent crimes are less serious than crimes marked by violence or the threat of violence." Solem v. Helm, 463 U. S. 277, 292­293 (1983). Similarly, "trickery and deceit," TXO, 509 U. S., at 462, are more reprehensible than negligence. In TXO, both the West Virginia Supreme Court and the Jus- tices of this Court placed special emphasis on the principle that punitive damages may not be "grossly out of proportion to the severity of the offense." 25 Id., at 453, 462. Indeed, for Justice Kennedy, the defendant's intentional malice was the decisive element in a "close and difficult" case. Id., at 468.26 In this case, none of the aggravating factors associated with particularly reprehensible conduct is present. The harm BMW inflicted on Dr. Gore was purely economic in nature. The presale refinishing of the car had no effect on its performance or safety features, or even its appearance for at least nine months after his purchase. BMW's conduct evinced no indifference to or reckless disregard for the health and safety of others. To be sure, infliction of eco- nomic injury, especially when done intentionally through af- firmative acts of misconduct, id., at 453, or when the target is financially vulnerable, can warrant a substantial penalty. But this observation does not convert all acts that cause economic harm into torts that are sufficiently reprehensible to justify a significant sanction in addition to compensatory damages. Dr. Gore contends that BMW's conduct was particularly reprehensible because nondisclosure of the repairs to his car formed part of a nationwide pattern of tortious conduct. Certainly, evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argu- 25 Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 22 (1991). 26 The dissenters also recognized that "TXO's conduct was clearly wrongful, calculated, and improper . . . ." TXO, 509 U. S., at 482 (opinion of O'Connor, J.). 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 577 Opinion of the Court ment that strong medicine is required to cure the defendant's disrespect for the law. See id., at 462, n. 28. Our holdings that a recidivist may be punished more severely than a first offender recognize that repeated misconduct is more repre- hensible than an individual instance of malfeasance. See Gryger v. Burke, 334 U. S. 728, 732 (1948). In support of his thesis, Dr. Gore advances two arguments. First, he asserts that the state disclosure statutes supple- ment, rather than supplant, existing remedies for breach of contract and common-law fraud. Thus, according to Dr. Gore, the statutes may not properly be viewed as immuniz- ing from liability the nondisclosure of repairs costing less than the applicable statutory threshold. Brief for Respond- ent 18­19. Second, Dr. Gore maintains that BMW should have anticipated that its failure to disclose similar repair work could expose it to liability for fraud. Id., at 4­5. We recognize, of course, that only state courts may author- itatively construe state statutes. As far as we are aware, at the time this action was commenced no state court had explicitly addressed whether its State's disclosure statute provides a safe harbor for nondisclosure of presumptively minor repairs or should be construed instead as supplement- ing common-law duties.27 A review of the text of the stat- 27 In Jeter v. M & M Dodge, Inc., 634 So. 2d 1383 (La. App. 1994), a Louisiana Court of Appeals suggested that the Louisiana disclosure stat- ute functions as a safe harbor. Finding that the cost of repairing presale damage to the plaintiff's car exceeded the statutory disclosure threshold, the court held that the disclosure statute did not provide a defense to the action. Id., at 1384. During the pendency of this litigation, Alabama enacted a disclosure statute which defines "material" damage to a new car as damage requiring repairs costing in excess of 3 percent of suggested retail price or $500, whichever is greater. Ala. Code § 8­19­5(22) (1993). After its decision in this case, the Alabama Supreme Court stated in dicta that the remedies available under this section of its Deceptive Trade Practices Act did not displace or alter pre-existing remedies available under either the common law or other statutes. Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909, 917, n. 2 (1994). It refused, however, to "recognize, or impose on 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 578 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court utes, however, persuades us that in the absence of a state- court determination to the contrary, a corporate executive could reasonably interpret the disclosure requirements as es- tablishing safe harbors. In California, for example, the dis- closure statute defines "material" damage to a motor vehicle as damage requiring repairs costing in excess of 3 percent of the suggested retail price or $500, whichever is greater. Cal. Veh. Code Ann. § 9990 (West Supp. 1996). The Illinois statute states that in cases in which disclosure is not re- quired, "nondisclosure does not constitute a misrepresenta- tion or omission of fact." Ill. Comp. Stat., ch. 815, § 710/5 (1994).28 Perhaps the statutes may also be interpreted in another way. We simply emphasize that the record contains no evidence that BMW's decision to follow a disclosure policy that coincided with the strictest extant state statute was sufficiently reprehensible to justify a $2 million award of punitive damages. automobile manufacturers, a general duty to disclose every repair of dam- age, however slight, incurred during the manufacturing process." Id., at 921. Instead, it held that whether a defendant has a duty to disclose is a question of fact "for the jury to determine." Id., at 918. In reaching that conclusion it overruled two earlier decisions that seemed to indicate that as a matter of law there was no disclosure obligation in cases compa- rable to this one. Id., at 920 (overruling Century 21-Reeves Realty, Inc. v. McConnell Cadillac, Inc., 626 So. 2d 1273 (1993), and Cobb v. Southeast Toyota Distributors, Inc., 569 So. 2d 395 (1990)). 28 See also Ariz. Rev. Stat. Ann. § 28­1304.03 (1989) ("[I]f disclosure is not required under this section, a purchaser may not revoke or rescind a sales contract due solely to the fact that the new motor vehicle was dam- aged and repaired prior to completion of the sale"); Ind. Code § 9­23­4­5 (1993) (providing that "[r]epaired damage to a customer-ordered new motor vehicle not exceeding four percent (4%) of the manufacturer's sug- gested retail price does not need to be disclosed at the time of sale"); N. C. Gen. Stat. § 20­305.1(e) (1993) (requiring disclosure of repairs costing more than 5 percent of suggested retail price and prohibiting revocation or re- scission of sales contract on the basis of less costly repairs); Okla. Stat., Tit. 47, § 1112.1 (1991) (defining "material" damage to a car as damage requiring repairs costing in excess of 3 percent of suggested retail price or $500, whichever is greater). 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 579 Opinion of the Court Dr. Gore's second argument for treating BMW as a recidi- vist is that the company should have anticipated that its ac- tions would be considered fraudulent in some, if not all, juris- dictions. This contention overlooks the fact that actionable fraud requires a material misrepresentation or omission.29 This qualifier invites line-drawing of just the sort engaged in by States with disclosure statutes and by BMW. We do not think it can be disputed that there may exist minor im- perfections in the finish of a new car that can be repaired (or indeed, left unrepaired) without materially affecting the car's value.30 There is no evidence that BMW acted in bad faith when it sought to establish the appropriate line be- tween presumptively minor damage and damage requiring disclosure to purchasers. For this purpose, BMW could rea- sonably rely on state disclosure statutes for guidance. In this regard, it is also significant that there is no evidence that BMW persisted in a course of conduct after it had been adjudged unlawful on even one occasion, let alone repeated occasions.31 Finally, the record in this case discloses no deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive, such as were present in Haslip and TXO. Haslip, 499 U. S., at 5; TXO, 509 U. S., at 453. We accept, of course, the jury's finding that BMW suppressed 29 Restatement (Second) of Torts § 538 (1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 108 (5th ed. 1984). 30 The Alabama Supreme Court has held that a car may be considered "new" as a matter of law even if its finish contains minor cosmetic flaws. Wilburn v. Larry Savage Chevrolet, Inc., 477 So. 2d 384 (1985). We note also that at trial respondent only introduced evidence of undisclosed paint damage to new cars repaired at a cost of $300 or more. This decision suggests that respondent believed that the jury might consider some repairs too de minimis to warrant disclosure. 31 Before the verdict in this case, BMW had changed its policy with re- spect to Alabama and two other States. Five days after the jury award, BMW altered its nationwide policy to one of full disclosure. 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 580 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court a material fact which Alabama law obligated it to communi- cate to prospective purchasers of repainted cars in that State. But the omission of a material fact may be less rep- rehensible than a deliberate false statement, particularly when there is a good-faith basis for believing that no duty to disclose exists. That conduct is sufficiently reprehensible to give rise to tort liability, and even a modest award of exemplary dam- ages does not establish the high degree of culpability that warrants a substantial punitive damages award. Because this case exhibits none of the circumstances ordinarily asso- ciated with egregiously improper conduct, we are persuaded that BMW's conduct was not sufficiently reprehensible to warrant imposition of a $2 million exemplary damages award. Ratio The second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff. See TXO, 509 U. S., at 459; Haslip, 499 U. S., at 23. The principle that exemplary damages must bear a "reasonable relationship" to compensatory damages has a long pedigree.32 Scholars have identified a number of early English statutes authorizing the 32 See, e. g., Grant v. McDonogh, 7 La. Ann. 447, 448 (1852) ("[E]xem- plary damages allowed should bear some proportion to the real damage sustained"); Saunders v. Mullen, 66 Iowa 728, 729, 24 N. W. 529 (1885) ("When the actual damages are so small, the amount allowed as exemplary damages should not be so large"); Flannery v. Baltimore & Ohio R. Co., 15 D. C. 111, 125 (1885) (when punitive damages award "is out of all propor- tion to the injuries received, we feel it our duty to interfere"); Houston & Texas Central R. Co. v. Nichols, 9 Am. & Eng. R. R. Cas. 361, 365 (Tex. 1882) ("Exemplary damages, when allowed, should bear proportion to the actual damages sustained"); McCarthy v. Niskern, 22 Minn. 90, 91­92 (1875) (punitive damages "enormously in excess of what may justly be regarded as compensation" for the injury must be set aside "to prevent injustice"). 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 581 Opinion of the Court award of multiple damages for particular wrongs. Some 65 different enactments during the period between 1275 and 1753 provided for double, treble, or quadruple damages.33 Our decisions in both Haslip and TXO endorsed the proposi- tion that a comparison between the compensatory award and the punitive award is significant. In Haslip we concluded that even though a punitive dam- ages award of "more than 4 times the amount of compensa- tory damages" might be "close to the line," it did not "cross the line into the area of constitutional impropriety." 499 U. S., at 23­24. TXO, following dicta in Haslip, refined this analysis by confirming that the proper inquiry is " `whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred.' " TXO, 509 U. S., at 460 (emphasis in original), quoting Haslip, 499 U. S., at 21. Thus, in upholding the $10 million award in TXO, we relied on the difference between that figure and the harm to the victim that would have en- sued if the tortious plan had succeeded. That difference suggested that the relevant ratio was not more than 10 to 1.34 33 Owen, supra n. 23, at 368, and n. 23. One English statute, for exam- ple, provides that officers arresting persons out of their jurisdiction shall pay double damages. 3 Edw., I., ch. 35. Another directs that in an action for forcible entry or detainer, the plaintiff shall recover treble damages. 8 Hen. VI, ch. 9, § 6. Present-day federal law allows or mandates imposition of multiple dam- ages for a wide assortment of offenses, including violations of the antitrust laws, see § 4 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 15, and the Racketeer Influenced and Corrupt Organizations Act, see 18 U. S. C. § 1964, and certain breaches of the trademark laws, see § 35 of the Trademark Act of 1946, 60 Stat. 439, as amended, 15 U. S. C. § 1117, and the patent laws, see 66 Stat. 813, 35 U. S. C. § 284. 34 "While petitioner stresses the shocking disparity between the punitive award and the compensatory award, that shock dissipates when one con- siders the potential loss to respondents, in terms of reduced or eliminated royalties payments, had petitioner succeeded in its illicit scheme. Thus, even if the actual value of the `potential harm' to respondents is not be- 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 582 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court The $2 million in punitive damages awarded to Dr. Gore by the Alabama Supreme Court is 500 times the amount of his actual harm as determined by the jury.35 Moreover, there is no suggestion that Dr. Gore or any other BMW pur- chaser was threatened with any additional potential harm by BMW's nondisclosure policy. The disparity in this case is thus dramatically greater than those considered in Haslip and TXO.36 Of course, we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential dam- ages to the punitive award. TXO, 509 U. S., at 458.37 In- deed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. It is appropriate, therefore, to reiter- ate our rejection of a categorical approach. Once again, "we return to what we said . . . in Haslip: `We need not, and tween $5 million and $8.3 million, but is closer to $4 million, or $2 million, or even $1 million, the disparity between the punitive award and the po- tential harm does not, in our view, `jar one's constitutional sensibilities.' " TXO, 509 U. S., at 462, quoting Haslip, 499 U. S., at 18. 35 Even assuming each repainted BMW suffers a diminution in value of approximately $4,000, the award is 35 times greater than the total dam- ages of all 14 Alabama consumers who purchased repainted BMW's. 36 The ratio here is also dramatically greater than any award that would be permissible under the statutes and proposed statutes summarized in the appendix to Justice Ginsburg's dissenting opinion. Post, at 615­616. 37 Conceivably the Alabama Supreme Court's selection of a 500-to-1 ratio was an application of Justice Scalia's identification of one possible read- ing of the plurality opinion in TXO: Any future due process challenge to a punitive damages award could be disposed of with the simple obser- vation that "this is no worse than TXO." 509 U. S., at 472 (Scalia, J., concurring in judgment). As we explain in the text, this award is significantly worse than the award in TXO. 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 583 Opinion of the Court indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unac- ceptable that would fit every case. We can say, however, that [a] general concer[n] of reasonableness . . . properly en- ter[s] into the constitutional calculus.' " Id., at 458 (quoting Haslip, 499 U. S., at 18). In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis. When the ratio is a breathtaking 500 to 1, however, the award must surely "raise a suspicious judicial eyebrow." TXO, 509 U. S., at 481 (O'Connor, J., dissenting). Sanctions for Comparable Misconduct Comparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable mis- conduct provides a third indicium of excessiveness. As Jus- tice O'Connor has correctly observed, a reviewing court engaged in determining whether an award of punitive dam- ages is excessive should "accord `substantial deference' to legislative judgments concerning appropriate sanctions for the conduct at issue." Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S., at 301 (opinion concur- ring in part and dissenting in part). In Haslip, 499 U. S., at 23, the Court noted that although the exemplary award was "much in excess of the fine that could be imposed," imprison- ment was also authorized in the criminal context.38 In this 38 Although the Court did not address the size of the punitive damages award in Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984), the dissent- ers commented on its excessive character, noting that the "$10 million [punitive damages award] that the jury imposed is 100 times greater than the maximum fine that may be imposed . . . for a single violation of federal standards" and "more than 10 times greater than the largest single fine that the Commission has ever imposed." Id., at 263 (Blackmun, J., dis- senting). In New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the Court observed that the punitive award for libel was "one thousand times greater than the maximum fine provided by the Alabama criminal stat- ute," and concluded that the "fear of damage awards under a rule such as 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 584 BMW OF NORTH AMERICA, INC. v. GORE Opinion of the Court case the $2 million economic sanction imposed on BMW is substantially greater than the statutory fines available in Alabama and elsewhere for similar malfeasance. The maximum civil penalty authorized by the Alabama Legislature for a violation of its Deceptive Trade Practices Act is $2,000; 39 other States authorize more severe sanctions, with the maxima ranging from $5,000 to $10,000.40 Signifi- cantly, some statutes draw a distinction between first offend- ers and recidivists; thus, in New York the penalty is $50 for a first offense and $250 for subsequent offenses. None of these statutes would provide an out-of-state distributor with fair notice that the first violation-or, indeed the first 14 vio- lations-of its provisions might subject an offender to a multimillion dollar penalty. Moreover, at the time BMW's policy was first challenged, there does not appear to have been any judicial decision in Alabama or elsewhere indicat- ing that application of that policy might give rise to such severe punishment. The sanction imposed in this case cannot be justified on the ground that it was necessary to deter future misconduct without considering whether less drastic remedies could be expected to achieve that goal. The fact that a multimillion dollar penalty prompted a change in policy sheds no light on the question whether a lesser deterrent would have ade- quately protected the interests of Alabama consumers. In that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute." Id., at 277. 39 Ala. Code § 8­19­11(b) (1993). 40 See, e. g., Ark. Code Ann. § 23­112­309(b) (1992) (up to $5,000 for viola- tion of state Motor Vehicle Commission Act that would allow suspension of dealer's license; up to $10,000 for violation of Act that would allow revo- cation of dealer's license); Fla. Stat. § 320.27(12) (1992) (up to $1,000); Ga. Code Ann. §§ 40­1­5(g), 10­1­397(a) (1994 and Supp. 1996) (up to $2,000 administratively; up to $5,000 in superior court); Ind. Code § 9­23­6­4 (1993) ($50 to $1,000); N. H. Rev. Stat. Ann. §§ 357­C:15, 651:2 (1995 and Supp. 1995) (corporate fine of up to $20,000); N. Y. Gen. Bus. Law § 396­p(6) (McKinney Supp. 1995) ($50 for first offense; $250 for subsequent offenses). 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 585 Opinion of the Court the absence of a history of noncompliance with known statu- tory requirements, there is no basis for assuming that a more modest sanction would not have been sufficient to motivate full compliance with the disclosure requirement imposed by the Alabama Supreme Court in this case. IV We assume, as the juries in this case and in the Yates case found, that the undisclosed damage to the new BMW's af- fected their actual value. Notwithstanding the evidence ad- duced by BMW in an effort to prove that the repainted cars conformed to the same quality standards as its other cars, we also assume that it knew, or should have known, that as time passed the repainted cars would lose their attractive appearance more rapidly than other BMW's. Moreover, we of course accept the Alabama courts' view that the state interest in protecting its citizens from deceptive trade practices justifies a sanction in addition to the recovery of compensatory damages. We cannot, however, accept the conclusion of the Alabama Supreme Court that BMW's con- duct was sufficiently egregious to justify a punitive sanction that is tantamount to a severe criminal penalty. The fact that BMW is a large corporation rather than an impecunious individual does not diminish its entitlement to fair notice of the demands that the several States impose on the conduct of its business. Indeed, its status as an active participant in the national economy implicates the federal interest in preventing individual States from imposing undue burdens on interstate commerce. While each State has ample power to protect its own consumers, none may use the punitive damages deterrent as a means of imposing its regulatory policies on the entire Nation. As in Haslip, we are not prepared to draw a bright line marking the limits of a constitutionally acceptable punitive damages award. Unlike that case, however, we are fully convinced that the grossly excessive award imposed in this 517US2$52I 02-07-99 18:49:46 PAGES OPINPGT 586 BMW OF NORTH AMERICA, INC. v. GORE Breyer, J., concurring case transcends the constitutional limit.41 Whether the ap- propriate remedy requires a new trial or merely an inde- pendent determination by the Alabama Supreme Court of the award necessary to vindicate the economic interests of Alabama consumers is a matter that should be addressed by the state court in the first instance. The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Breyer, with whom Justice O'Connor and Justice Souter join, concurring. The Alabama state courts have assessed the defendant $2 million in "punitive damages" for having knowingly failed to tell a BMW automobile buyer that, at a cost of $600, it had repainted portions of his new $40,000 car, thereby lowering its potential resale value by about 10%. The Court's opin- ion, which I join, explains why we have concluded that this award, in this case, was "grossly excessive" in relation to legitimate punitive damages objectives, and hence an arbi- trary deprivation of life, liberty, or property in violation of the Due Process Clause. See TXO Production Corp. v. Alli- ance Resources Corp., 509 U. S. 443, 453, 454 (1993) (A "grossly excessive" punitive award amounts to an "arbitrary deprivation of property without due process of law") (plural- ity opinion). Members of this Court have generally thought, however, that if "fair procedures were followed, a judgment that is a product of that process is entitled to a strong pre- 41 Justice Ginsburg expresses concern that we are "the only federal court policing" this limit. Post, at 613. The small number of punitive damages questions that we have reviewed in recent years, together with the fact that this is the first case in decades in which we have found that a punitive damages award exceeds the constitutional limit, indicates that this concern is at best premature. In any event, this consideration surely does not justify an abdication of our responsibility to enforce constitutional protections in an extraordinary case such as this one. 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 587 Breyer, J., concurring sumption of validity." Id., at 457. See also Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 40­42 (1991) (Kennedy, J., concurring in judgment). And the Court also has found that punitive damages procedures very similar to those fol- lowed here were not, by themselves, fundamentally unfair. Id., at 15­24. Thus, I believe it important to explain why this presumption of validity is overcome in this instance. The reason flows from the Court's emphasis in Haslip upon the constitutional importance of legal standards that provide "reasonable constraints" within which "discretion is exer- cised," that assure "meaningful and adequate review by the trial court whenever a jury has fixed the punitive damages," and permit "appellate review [that] makes certain that the punitive damages are reasonable in their amount and ra- tional in light of their purpose to punish what has occurred and to deter its repetition." Id., at 20­21. See also id., at 18 ("[U]nlimited jury discretion-or unlimited judicial dis- cretion for that matter-in the fixing of punitive damages may invite extreme results that jar one's constitutional sensibilities"). This constitutional concern, itself harkening back to the Magna Carta, arises out of the basic unfairness of depriving citizens of life, liberty, or property, through the application, not of law and legal processes, but of arbitrary coercion. Daniels v. Williams, 474 U. S. 327, 331 (1986); Dent v. West Virginia, 129 U. S. 114, 123 (1889). Requiring the applica- tion of law, rather than a decisionmaker's caprice, does more than simply provide citizens notice of what actions may sub- ject them to punishment; it also helps to assure the uniform general treatment of similarly situated persons that is the essence of law itself. See Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112 (1949) (Jackson, J., concurring) ("[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally"). 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT 588 BMW OF NORTH AMERICA, INC. v. GORE Breyer, J., concurring Legal standards need not be precise in order to satisfy this constitutional concern. See Haslip, supra, at 20 (comparing punitive damages standards to such legal standards as "rea- sonable care," "due diligence," and "best interests of the child") (internal quotation marks omitted). But they must offer some kind of constraint upon a jury or court's discre- tion, and thus protection against purely arbitrary behavior. The standards the Alabama courts applied here are vague and open ended to the point where they risk arbitrary re- sults. In my view, although the vagueness of those stand- ards does not, by itself, violate due process, see Haslip, supra, it does invite the kind of scrutiny the Court has given the particular verdict before us. See id., at 18 ("[C]oncerns of . . . adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calcu- lus"); TXO, supra, at 475 ("[I]t cannot be denied that the lack of clear guidance heightens the risk that arbitrariness, passion, or bias will replace dispassionate deliberation as the basis for the jury's verdict") (O'Connor, J., dissent- ing). This is because the standards, as the Alabama Supreme Court authoritatively interpreted them here, pro- vided no significant constraints or protection against arbi- trary results. First, the Alabama statute that permits punitive damages does not itself contain a standard that readily distinguishes between conduct warranting very small, and conduct war- ranting very large, punitive damages awards. That statute permits punitive damages in cases of "oppression, fraud, wantonness, or malice." Ala. Code § 6­11­20(a) (1993). But the statute goes on to define those terms broadly, to encom- pass far more than the egregious conduct that those terms, at first reading, might seem to imply. An intentional mis- representation, made through a statement or silence, can easily amount to "fraud" sufficient to warrant punitive dam- ages. See § 6­11­20(b)(1) ("Fraud" includes "intentional . . . concealment of a material fact the concealing party had a 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 589 Breyer, J., concurring duty to disclose, which was gross, oppressive, or malicious and committed with the intention . . . of thereby depriving a person or entity of property") (emphasis added); § 6­11­ 20(b)(2) ("Malice" includes any "wrongful act without just cause or excuse . . . [w]ith an intent to injure the . . . prop- erty of another") (emphasis added); § 6­11­20(b)(5) ("Oppres- sion" includes "[s]ubjecting a person to . . . unjust hardship in conscious disregard of that person's rights"). The statute thereby authorizes punitive damages for the most serious kinds of misrepresentations, say, tricking the elderly out of their life savings, for much less serious conduct, such as the failure to disclose repainting a car, at issue here, and for a vast range of conduct in between. Second, the Alabama courts, in this case, have applied the "factors" intended to constrain punitive damages awards in a way that belies that purpose. Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989), sets forth seven factors that appel- late courts use to determine whether or not a jury award was "grossly excessive" and which, in principle, might make up for the lack of significant constraint in the statute. But, as the Alabama courts have authoritatively interpreted them, and as their application in this case illustrates, they impose little actual constraint. (a) Green Oil requires that a punitive damages award "bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred." Id., at 223. But this standard does little to guide a determination of what counts as a "rea- sonable" relationship, as this case illustrates. The record evidence of past, present, or likely future harm consists of (a) $4,000 of harm to Dr. Gore's BMW; (b) 13 other similar Alabama instances; and (c) references to about 1,000 similar instances in other States. The Alabama Supreme Court, disregarding BMW's failure to make relevant objection to the out-of-state instances at trial (as was the court's right), held that the last mentioned, out-of-state instances did not 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT 590 BMW OF NORTH AMERICA, INC. v. GORE Breyer, J., concurring count as relevant harm. It went on to find "a reasonable relationship" between the harm and the $2 million punitive damages award without "consider[ing] those acts that oc- curred in other jurisdictions." 646 So. 2d 619, 628 (1994) (emphasis added). For reasons explored by the majority in greater depth, see ante, at 574­586, the relationship between this award and the underlying conduct seems well beyond the bounds of the "reasonable." To find a "reasonable rela- tionship" between purely economic harm totaling $56,000, without significant evidence of future repetition, and a puni- tive award of $2 million is to empty the "reasonable relation- ship" test of meaningful content. As thus construed, it does not set forth a legal standard that could have significantly constrained the discretion of Alabama factfinders. (b) Green Oil's second factor is the "degree of reprehensi- bility" of the defendant's conduct. Green Oil, supra, at 223. Like the "reasonable relationship" test, this factor provides little guidance on how to relate culpability to the size of an award. The Alabama court, in considering this factor, found "reprehensible" that BMW followed a conscious policy of not disclosing repairs to new cars when the cost of repairs amounted to less than 3% of the car's value. Of course, any conscious policy of not disclosing a repair-where one knows the nondisclosure might cost the customer resale value-is "reprehensible" to some degree. But, for the reasons dis- cussed by the majority, ante, at 575­580, I do not see how the Alabama courts could find conduct that (they assumed) caused $56,000 of relevant economic harm especially or un- usually reprehensible enough to warrant $2 million in puni- tive damages, or a significant portion of that award. To find to the contrary, as the Alabama courts did, is not simply un- reasonable; it is to make "reprehensibility" a concept without constraining force, i. e., to deprive the concept of its con- straining power to protect against serious and capricious deprivations. 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 591 Breyer, J., concurring (c) Green Oil's third factor requires "punitive damages" to "remove the profit" of the illegal activity and "be in excess of the profit, so that the defendant recognizes a loss." Green Oil, 539 So. 2d, at 223. This factor has the ability to limit awards to a fixed, rational amount. But as applied, that con- cept's potential was not realized, for the court did not limit the award to anywhere near the $56,000 in profits evidenced in the record. Given the record's description of the conduct and its prevalence, this factor could not justify much of the $2 million award. (d) Green Oil's fourth factor is the "financial position" of the defendant. Ibid. Since a fixed dollar award will punish a poor person more than a wealthy one, one can understand the relevance of this factor to the State's interest in retribu- tion (though not necessarily to its interest in deterrence, given the more distant relation between a defendant's wealth and its responses to economic incentives). See TXO, 509 U. S., at 462, and n. 28 (plurality opinion); id., at 469 (Ken- nedy, J., concurring in part and concurring in judgment); Haslip, 499 U. S., at 21­22; Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 300 (1989) (O'Connor, J., concurring in part and dissenting in part). This factor, however, is not necessarily intended to act as a significant constraint on punitive awards. Rather, it pro- vides an open-ended basis for inflating awards when the de- fendant is wealthy, as this case may illustrate. That does not make its use unlawful or inappropriate; it simply means that this factor cannot make up for the failure of other fac- tors, such as "reprehensibility," to constrain significantly an award that purports to punish a defendant's conduct. (e) Green Oil's fifth factor is the "costs of litigation" and the State's desire "to encourage plaintiffs to bring wrongdo- ers to trial." 539 So. 2d, at 223. This standard provides meaningful constraint to the extent that the enhancement it authorized is linked to a fixed, ascertainable amount approxi- mating actual costs, even when defined generously to reflect 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT 592 BMW OF NORTH AMERICA, INC. v. GORE Breyer, J., concurring the contingent nature of plaintiffs' victories. But as this case shows, the factor cannot operate as a constraint when an award much in excess of costs is approved for other rea- sons. An additional aspect of the standard-the need to "encourage plaintiffs to bring wrongdoers to trial"-is a factor that does not constrain, but enhances, discretionary power-especially when unsupported by evidence of a spe- cial need to encourage litigation (which the Alabama courts here did not mention). (f) Green Oil's sixth factor is whether or not "criminal sanctions have been imposed on the defendant for his con- duct." Ibid. This factor did not apply here. (g) Green Oil's seventh factor requires that "other civil actions" filed "against the same defendant, based on the same conduct," be considered in mitigation. Id., at 224. That factor did not apply here. Thus, the first, second, and third Green Oil factors, in prin- ciple, might sometimes act as constraints on arbitrary behav- ior. But as the Alabama courts interpreted those standards in this case, even taking those three factors together, they could not have significantly constrained the court system's ability to impose "grossly excessive" awards. Third, the state courts neither referred to, nor made any effort to find, nor enunciated any other standard that either directly, or indirectly as background, might have supplied the constraining legal force that the statute and Green Oil stand- ards (as interpreted here) lack. Dr. Gore did argue to the jury an economic theory based on the need to offset the total- ity of the harm that the defendant's conduct caused. Some theory of that general kind might have provided a significant constraint on arbitrary awards (at least where confined to the relevant harm-causing conduct, see ante, at 570­574). Some economists, for example, have argued for a standard that would deter illegal activity causing solely economic harm through the use of punitive damages awards that, as a whole, would take from a wrongdoer the total cost of the 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 593 Breyer, J., concurring harm caused. See, e. g., S. Shavell, Economic Analysis of Accident Law 162 (1987) ("If liability equals losses caused multiplied by . . . the inverse of the probability of suit, in- jurers will act optimally under liability rules despite the chance that they will escape suit"); Cooter, Punitive Dam- ages for Deterrence: When and How Much, 40 Ala. L. Rev. 1143, 1146­1148 (1989). My understanding of the intuitive essence of some of those theories, which I put in crude form (leaving out various qualifications), is that they could permit juries to calculate punitive damages by making a rough esti- mate of global harm, dividing that estimate by a similarly rough estimate of the number of successful lawsuits that would likely be brought, and adding generous attorney's fees and other costs. Smaller damages would not sufficiently discourage firms from engaging in the harmful conduct, while larger damages would "over-deter" by leading poten- tial defendants to spend more to prevent the activity that causes the economic harm, say, through employee training, than the cost of the harm itself. See Galligan, Augmented Awards: The Efficient Evolution of Punitive Damages, 51 La. L. Rev. 3, 17­20, 28­30 (1990). Larger damages might also "double count" by including in the punitive damages award some of the compensatory, or punitive, damages that subse- quent plaintiffs would also recover. The record before us, however, contains nothing suggest- ing that the Alabama Supreme Court, when determining the allowable award, applied any "economic" theory that might explain the $2 million recovery. Cf. Browning-Ferris, supra, at 300 (noting that the Constitution "does not incorpo- rate the views of the Law and Economics School," nor does it " `require the States to subscribe to any particular economic theory' ") (O'Connor, J., concurring in part and dissenting in part) (quoting CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 92 (1987)). And courts properly tend to judge the rationality of judicial actions in terms of the reasons that were given, and the facts that were before the court, cf. TXO, 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT 594 BMW OF NORTH AMERICA, INC. v. GORE Breyer, J., concurring 509 U. S., at 468 (Kennedy, J., concurring in part and con- curring in judgment), not those that might have been given on the basis of some conceivable set of facts (unlike the ra- tionality of economic statutes enacted by legislatures subject to the public's control through the ballot box, see, e. g., FCC v. Beach Communications, Inc., 508 U. S. 307, 315 (1993)). Therefore, reference to a constraining "economic" theory, which might have counseled more deferential review by this Court, is lacking in this case. Fourth, I cannot find any community understanding or his- toric practice that this award might exemplify and which, therefore, would provide background standards constraining arbitrary behavior and excessive awards. A punitive dam- ages award of $2 million for intentional misrepresentation causing $56,000 of harm is extraordinary by historical stand- ards, and, as far as I am aware, finds no analogue until rela- tively recent times. Amici for Dr. Gore attempt to show that this is not true, pointing to various historical cases which, according to their calculations, represented roughly equivalent punitive awards for similarly culpable conduct. See Brief for James D. A. Boyle et al. as Amici Curiae 4­5 (hereinafter Legal Historians' Brief). Among others, they cite Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763) (£1,000 said to be equivalent of $1.5 million, for warrantless search of papers); Huckle v. Money, 2 Wills. 205, 95 Eng. Rep. 768 (K. B. 1763) (£300, said to be $450,000, for 6-hour false imprisonment); Hewlett v. Cruchley, 5 Taunt. 277, 128 Eng. Rep. 696 (C. P. 1813) (£2,000, said to be $680,000, for malicious prosecution); Merest v. Harvey, 5 Taunt. 442, 128 Eng. Rep. 761 (C. P. 1814) (£500, said to be $165,000, for poaching). But amici apparently base their conversions on a mathematical assumption, namely, that inflation has pro- gressed at a constant 3% rate of inflation. See Legal Histo- rians' Brief 4. In fact, consistent, cumulative inflation is a modern phenomenon. See McCusker, How Much Is That in Real Money? A Historical Price Index for Use as a Deflator 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 595 Breyer, J., concurring of Money Values in the Economy of the United States, 101 Proceedings of American Antiquarian Society 297, 310, 323­ 332 (1992). Estimates based on historical rates of valuation, while highly approximate, suggest that the ancient extraor- dinary awards are small compared to the $2 million here at issue, or other modern punitive damages figures. See Ap- pendix to this opinion, infra, at 597­598 (suggesting that the modern equivalent of the awards in the above cases is some- thing like $150,000, $45,000, $100,000, and $25,000, respec- tively). And, as the majority opinion makes clear, the rec- ord contains nothing to suggest that the extraordinary size of the award in this case is explained by the extraordinary wrongfulness of the defendant's behavior, measured by his- torical or community standards, rather than arbitrariness or caprice. Fifth, there are no other legislative enactments here that classify awards and impose quantitative limits that would significantly cabin the fairly unbounded discretion created by the absence of constraining legal standards. Cf., e. g., Tex. Civ. Prac. & Rem. Code Ann. § 41.008 (Supp. 1996) (punitive damages generally limited to greater of double damages, or $200,000, except cap does not apply to suits arising from certain serious criminal acts enumerated in the statute); Conn. Gen. Stat. § 52­240b (1995) (punitive damages may not exceed double compensatory damages in product liability cases); Fla. Stat. § 768.73(1) (Supp. 1993) (punitive damages in certain actions limited to treble compensatory damages); Ga. Code Ann. § 51­12­5.1(g) (Supp. 1995) ($250,000 cap in certain actions). The upshot is that the rules that purport to channel discre- tion in this kind of case, here did not do so in fact. That means that the award in this case was both (a) the product of a system of standards that did not significantly constrain a court's, and hence a jury's, discretion in making that award; and (b) grossly excessive in light of the State's legitimate punitive damages objectives. 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT 596 BMW OF NORTH AMERICA, INC. v. GORE Breyer, J., concurring The first of these reasons has special importance where courts review a jury-determined punitive damages award. That is because one cannot expect to direct jurors like legis- lators through the ballot box; nor can one expect those jurors to interpret law like judges, who work within a discipline and hierarchical organization that normally promotes roughly uniform interpretation and application of the law. Yet here Alabama expects jurors to act, at least a little, like legislators or judges, for it permits them, to a certain extent, to create public policy and to apply that policy, not to com- pensate a victim, but to achieve a policy-related objective outside the confines of the particular case. To the extent that neither clear legal principles nor fairly obvious historical or community-based standards (defining, say, especially egregious behavior) significantly constrain pu- nitive damages awards, is there not a substantial risk of out- comes so arbitrary that they become difficult to square with the Constitution's assurance, to every citizen, of the law's protection? The standards here, as authoritatively inter- preted, in my view, make this threat real and not theoretical. And, in these unusual circumstances, where legal standards offer virtually no constraint, I believe that this lack of con- straining standards warrants this Court's detailed examina- tion of the award. The second reason-the severe disproportionality between the award and the legitimate punitive damages objectives- reflects a judgment about a matter of degree. I recognize that it is often difficult to determine just when a punitive award exceeds an amount reasonably related to a State's legitimate interests, or when that excess is so great as to amount to a matter of constitutional concern. Yet whatever the difficulties of drawing a precise line, once we examine the award in this case, it is not difficult to say that this award lies on the line's far side. The severe lack of proportionality between the size of the award and the underlying punitive damages objectives shows that the award falls into the cate- 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 597 Appendix to opinion of Breyer, J. gory of "gross excessiveness" set forth in this Court's prior cases. These two reasons taken together overcome what would otherwise amount to a "strong presumption of validity." TXO, 509 U. S., at 457. And, for those two reasons, I con- clude that the award in this unusual case violates the basic guarantee of nonarbitrary governmental behavior that the Due Process Clause provides. APPENDIX TO OPINION OF BREYER, J. Although I recognize that all estimates of historic rates of inflation are subject to dispute, including, I assume, the sources below, those sources suggest that the value of the 18th and 19th century judgments cited by amici is much less than the figures amici arrived at under their presumption of a constant 3% rate of inflation. In 1763, £1 (Eng.) was worth £1.73 Pennsylvania currency. See U. S. Bureau of the Census, Historical Statistics of the United States: Colonial Times to 1970, Series Z­585, p. 1198 (Bicentennial ed. 1975). For the period 1766­1772, £1 (Penn.) was worth $45.99 (U. S. 1991). See McCusker, How Much Is That in Real Money? A Historical Price Index for Use as a Deflator of Money Values in the Economy of the United States, 101 American Antiquarian Society 297, 333 (1992). Thus, £1 (Eng. 1763) is worth about $79.56 (U. S. 1991). Accounting for the 12% inflation of the U. S. dollar between 1991 and 1995 (when amici filed their brief), see Economic Indicators, 104th Cong., 2d Sess., p. 23 (Feb. 1996), £1 (Eng. 1763) is worth about $89.11 (U. S. 1995). Calculated another way, £1 (Eng. 1763) is worth about £72.84 (Eng. 1991). See McCusker, supra, at 312, 342, 350. And £1 (Eng. 1991) is worth $1.77 (U. S. 1991). See 78 Fed. Reserve Bulletin A68 (Feb. 1992). Thus, £1 (Eng. 1763) amounts to about $128.93 (U. S. 1991). Again, accounting for inflation between 1991 and 1995, this amounts to about $144.40 (U. S. 1995). 517US2$52Q 02-07-99 18:49:46 PAGES OPINPGT 598 BMW OF NORTH AMERICA, INC. v. GORE Scalia, J., dissenting Thus, the above sources suggest that the £1,000 award in Wilkes in 1763 roughly amounts to between $89,110 and $144,440 today, not $1.5 million. And the £300 award in Huckle that same year would seem to be worth between $26,733 and $43,320 today, not $450,000. For the period of the Hewlett and Merest decisions, £1 (Eng. 1813) is worth about £25.3 (Eng. 1991). See Mc- Cusker, supra, at 344, 350. Using the 1991 exchange rate, £1 (Eng. 1813) is worth about $44.78 (U. S. 1991). Account- ing for inflation between 1991 and 1995, this amounts to about $50.16 (U. S. 1995). Thus, the £2,000 and £500 awards in Hewlett and Merest would seem to be closer to $100,320 and $25,080, respectively, than to amici's estimates of $680,000 and $165,000. Justice Scalia, with whom Justice Thomas joins, dissenting. Today we see the latest manifestation of this Court's re- cent and increasingly insistent "concern about punitive dam- ages that `run wild.' " Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 18 (1991). Since the Constitution does not make that concern any of our business, the Court's activities in this area are an unjustified incursion into the province of state governments. In earlier cases that were the prelude to this decision, I set forth my view that a state trial procedure that commits the decision whether to impose punitive damages, and the amount, to the discretion of the jury, subject to some judicial review for "reasonableness," furnishes a defendant with all the process that is "due." See TXO Production Corp. v. Al- liance Resources Corp., 509 U. S. 443, 470 (1993) (Scalia, J., concurring in judgment); Haslip, supra, at 25­28 (Scalia, J., concurring in judgment); cf. Honda Motor Co. v. Oberg, 512 U. S. 415, 435­436 (1994) (Scalia, J., concurring). I do not regard the Fourteenth Amendment's Due Process Clause as a secret repository of substantive guarantees against 517US2$52K 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 599 Scalia, J., dissenting "unfairness"-neither the unfairness of an excessive civil compensatory award, nor the unfairness of an "unreason- able" punitive award. What the Fourteenth Amendment's procedural guarantee assures is an opportunity to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable. See TXO, supra, at 471 (Scalia, J., concur- ring in judgment). This view, which adheres to the text of the Due Process Clause, has not prevailed in our punitive damages cases. See TXO, 509 U. S., at 453­462 (plurality opinion); id., at 478­ 481 (O'Connor, J., dissenting); Haslip, supra, at 18. When, however, a constitutional doctrine adopted by the Court is not only mistaken but also insusceptible of principled appli- cation, I do not feel bound to give it stare decisis effect- indeed, I do not feel justified in doing so. See, e. g., Witte v. United States, 515 U. S. 389, 406 (1995) (Scalia, J., concur- ring in judgment); Walton v. Arizona, 497 U. S. 639, 673 (1990) (Scalia, J., concurring in judgment in part and dis- senting in part). Our punitive damages jurisprudence com- pels such a response. The Constitution provides no warrant for federalizing yet another aspect of our Nation's legal cul- ture (no matter how much in need of correction it may be), and the application of the Court's new rule of constitutional law is constrained by no principle other than the Justices' subjective assessment of the "reasonableness" of the award in relation to the conduct for which it was assessed. Because today's judgment represents the first instance of this Court's invalidation of a state-court punitive assessment as simply unreasonably large, I think it a proper occasion to discuss these points at some length. I The most significant aspects of today's decision-the iden- tification of a "substantive due process" right against a "grossly excessive" award, and the concomitant assumption 517US2$52K 02-07-99 18:49:46 PAGES OPINPGT 600 BMW OF NORTH AMERICA, INC. v. GORE Scalia, J., dissenting of ultimate authority to decide anew a matter of "reasonable- ness" resolved in lower court proceedings-are of course not new. Haslip and TXO revived the notion, moribund since its appearance in the first years of this century, that the measure of civil punishment poses a question of constitu- tional dimension to be answered by this Court. Neither of those cases, however, nor any of the precedents upon which they relied, actually took the step of declaring a punitive award unconstitutional simply because it was "too big." At the time of adoption of the Fourteenth Amendment, it was well understood that punitive damages represent the assessment by the jury, as the voice of the community, of the measure of punishment the defendant deserved. See, e. g., Barry v. Edmunds, 116 U. S. 550, 565 (1886); Missouri Pa- cific R. Co. v. Humes, 115 U. S. 512, 521 (1885); Day v. Woodworth, 13 How. 363, 371 (1852). See generally Haslip, supra, at 25­27 (Scalia, J., concurring in judgment). To- day's decision, though dressed up as a legal opinion, is really no more than a disagreement with the community's sense of indignation or outrage expressed in the punitive award of the Alabama jury, as reduced by the State Supreme Court. It reflects not merely, as the concurrence candidly acknowl- edges, "a judgment about a matter of degree," ante, at 596; but a judgment about the appropriate degree of indignation or outrage, which is hardly an analytical determination. There is no precedential warrant for giving our judgment priority over the judgment of state courts and juries on this matter. The only support for the Court's position is to be found in a handful of errant federal cases, bunched within a few years of one other, which invented the notion that an unfairly severe civil sanction amounts to a violation of consti- tutional liberties. These were the decisions upon which the TXO plurality relied in pronouncing that the Due Process Clause "imposes substantive limits `beyond which penalties may not go,' " 509 U. S., at 454 (quoting Seaboard Air Line R. Co. v. Seegers, 207 U. S. 73, 78 (1907)); see also 509 U. S., 517US2$52K 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 601 Scalia, J., dissenting at 478­481 (O'Connor, J., dissenting); Haslip, supra, at 18. Although they are our precedents, they are themselves too shallowly rooted to justify the Court's recent undertaking. The only case relied upon in which the Court actually invali- dated a civil sanction does not even support constitutional review for excessiveness, since it really concerned the valid- ity, as a matter of procedural due process, of state legislation that imposed a significant penalty on a common carrier which lacked the means of determining the legality of its actions before the penalty was imposed. See Southwestern Tele- graph & Telephone Co. v. Danaher, 238 U. S. 482, 489­491 (1915). The amount of the penalty was not a subject of in- dependent scrutiny. As for the remaining cases, while the opinions do consider arguments that statutory penalties can, by reason of their excessiveness, violate due process, not a single one of these judgments invalidates a damages award. See Seaboard, supra, at 78­79; Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86, 111­112 (1909); Standard Oil Co. of Ind. v. Missouri, 224 U. S. 270, 286, 290 (1912); St. Louis, I. M. & S. R. Co. v. Williams, 251 U. S. 63, 66­67 (1919). More importantly, this latter group of cases-which again are the sole precedential foundation put forward for the rule of constitutional law espoused by today's Court-simply fab- ricated the "substantive due process" right at issue. Sea- board assigned no precedent to its bald assertion that the Constitution imposes "limits beyond which penalties may not go," 207 U. S., at 78. Waters-Pierce cited only Coffey v. County of Harlan, 204 U. S. 659 (1907), a case which inquired into the constitutionality of state procedure, id., at 662­663. Standard Oil simply cited Waters-Pierce, and St. Louis, I. M. & S. R. Co. offered in addition to these cases only Col- lins v. Johnston, 237 U. S. 502 (1915), which said nothing to support the notion of a "substantive due process" right against excessive civil penalties, but to the contrary asserted that the prescribing and imposing of criminal punishment were "functions peculiarly belonging to the several States," 517US2$52K 02-07-99 18:49:46 PAGES OPINPGT 602 BMW OF NORTH AMERICA, INC. v. GORE Scalia, J., dissenting id., at 509­510. Thus, the only authority for the Court's po- sition is simply not authoritative. These cases fall far short of what is needed to supplant this country's longstanding practice regarding exemplary awards, see, e. g., Haslip, 499 U. S., at 15­18; id., at 25­28 (Scalia, J., concurring in judgment). II One might understand the Court's eagerness to enter this field, rather than leave it with the state legislatures, if it had something useful to say. In fact, however, its opinion provides virtually no guidance to legislatures, and to state and federal courts, as to what a "constitutionally proper" level of punitive damages might be. We are instructed at the outset of Part II of the Court's opinion-the beginning of its substantive analysis-that "the federal excessiveness inquiry . . . begins with an identifica- tion of the state interests that a punitive award is designed to serve." Ante, at 568. On first reading this, one is faced with the prospect that federal punitive damages law (the new field created by today's decision) will be beset by the sort of "interest analysis" that has laid waste the formerly comprehensible field of conflict of laws. The thought that each assessment of punitive damages, as to each offense, must be examined to determine the precise "state interests" pursued, is most unsettling. Moreover, if those "interests" are the most fundamental determinant of an award, one would think that due process would require the assessing jury to be instructed about them. It appears, however (and I certainly hope), that all this is a false alarm. As Part II of the Court's opinion unfolds, it turns out to be directed, not to the question "How much punishment is too much?" but rather to the question "Which acts can be punished?" "Alabama does not have the power," the Court says, "to punish BMW for conduct that was lawful where it occurred and that had no impact on Alabama or its residents." Ante, at 572­573. That may be true, though 517US2$52K 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 603 Scalia, J., dissenting only in the narrow sense that a person cannot be held liable to be punished on the basis of a lawful act. But if a person has been held subject to punishment because he committed an unlawful act, the degree of his punishment assuredly can be increased on the basis of any other conduct of his that displays his wickedness, unlawful or not. Criminal sen- tences can be computed, we have said, on the basis of "infor- mation concerning every aspect of a defendant's life," Wil- liams v. New York, 337 U. S. 241, 250­252 (1949). The Court at one point seems to acknowledge this, observing that, al- though a sentencing court "[cannot] properly punish lawful conduct," it may in assessing the penalty "consider . . . lawful conduct that bears on the defendant's character." Ante, at 573, n. 19. That concession is quite incompatible, however, with the later assertion that, since "neither the jury nor the trial court was presented with evidence that any of BMW's out-of-state conduct was unlawful," the Alabama Supreme Court "therefore properly eschewed reliance on BMW's out- of-state conduct, . . . and based its remitted award solely on conduct that occurred within Alabama." Ante, at 573­574. Why could the Supreme Court of Alabama not consider law- ful (but disreputable) conduct, both inside and outside Ala- bama, for the purpose of assessing just how bad an actor BMW was? The Court follows up its statement that "Alabama does not have the power . . . to punish BMW for conduct that was lawful where it occurred" with the statement: "Nor may Ala- bama impose sanctions on BMW in order to deter conduct that is lawful in other jurisdictions." Ante, at 572­573. The Court provides us no citation of authority to support this proposition-other than the barely analogous cases cited ear- lier in the opinion, see ante, at 571­572-and I know of none. These significant issues pronounced upon by the Court are not remotely presented for resolution in the present case. There is no basis for believing that Alabama has sought to control conduct elsewhere. The statutes at issue merely 517US2$52K 02-07-99 18:49:46 PAGES OPINPGT 604 BMW OF NORTH AMERICA, INC. v. GORE Scalia, J., dissenting permit civil juries to treat conduct such as petitioner's as fraud, and authorize an award of appropriate punitive dam- ages in the event the fraud is found to be "gross, oppressive, or malicious," Ala. Code § 6­11­20(b)(1) (1993). To be sure, respondent did invite the jury to consider out-of-state con- duct in its calculation of damages, but any increase in the jury's initial award based on that consideration is not a com- ponent of the remitted judgment before us. As the Court several times recognizes, in computing the amount of the re- mitted award the Alabama Supreme Court-whether it was constitutionally required to or not-"expressly disclaimed any reliance on acts that occurred in other jurisdictions." Ante, at 567 (internal quotation marks omitted); see also ante, at 573­574.* Thus, the only question presented by this case is whether that award, limited to petitioner's Ala- bama conduct and viewed in light of the factors identified as properly informing the inquiry, is excessive. The Court's sweeping (and largely unsupported) statements regarding the relationship of punitive awards to lawful or unlawful out-of-state conduct are the purest dicta. III In Part III of its opinion, the Court identifies "[t]hree guideposts" that lead it to the conclusion that the award in this case is excessive: degree of reprehensibility, ratio be- tween punitive award and plaintiff's actual harm, and legisla- *The Alabama Supreme Court said: "[W]e must conclude that the award of punitive damages was based in large part on conduct that happened in other jurisdictions. . . . Although evidence of similar acts in other jurisdictions is admissible as to the issue of `pattern and practice' of such acts, . . . this jury could not use the number of similar acts that a defendant has committed in other jurisdictions as a multiplier when determining the dollar amount of a punitive damages award. Such evidence may not be considered in setting the size of the civil penalty, because neither the jury nor the trial court had evidence before it showing in which states the conduct was wrongful." 646 So. 2d 619, 627 (1994). 517US2$52K 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 605 Scalia, J., dissenting tive sanctions provided for comparable misconduct. Ante, at 574­585. The legal significance of these "guideposts" is nowhere explored, but their necessary effect is to establish federal standards governing the hitherto exclusively state law of damages. Apparently (though it is by no means clear) all three federal "guideposts" can be overridden if "neces- sary to deter future misconduct," ante, at 584-a loophole that will encourage state reviewing courts to uphold awards as necessary for the "adequat[e] protect[ion]" of state consumers, ibid. By effectively requiring state review- ing courts to concoct rationalizations-whether within the "guideposts" or through the loophole-to justify the intuitive punitive reactions of state juries, the Court accords neither category of institution the respect it deserves. Of course it will not be easy for the States to comply with this new federal law of damages, no matter how willing they are to do so. In truth, the "guideposts" mark a road to no- where; they provide no real guidance at all. As to "degree of reprehensibility" of the defendant's conduct, we learn that " `nonviolent crimes are less serious than crimes marked by violence or the threat of violence,' " ante, at 576 (quoting Solem v. Helm, 463 U. S. 277, 292­293 (1983)), and that " `trickery and deceit' " are "more reprehensible than negli- gence," ante, at 576. As to the ratio of punitive to compen- satory damages, we are told that a " `general concer[n] of reasonableness . . . enter[s] into the constitutional calculus,' " ante, at 583 (quoting TXO, 509 U. S., at 458)-though even "a breathtaking 500 to 1" will not necessarily do anything more than " `raise a suspicious judicial eyebrow,' " ante, at 583 (quoting TXO, supra, at 481 (O'Connor, J., dissenting), an opinion which, when confronted with that "breathtaking" ratio, approved it). And as to legislative sanctions provided for comparable misconduct, they should be accorded " `sub- stantial deference,' " ante, at 583 (quoting Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 301 (1989) (O'Connor, J., concurring in part and dissenting 517US2$52K 02-07-99 18:49:46 PAGES OPINPGT 606 BMW OF NORTH AMERICA, INC. v. GORE Scalia, J., dissenting in part)). One expects the Court to conclude: "To thine own self be true." These crisscrossing platitudes yield no real answers in no real cases. And it must be noted that the Court nowhere says that these three "guideposts" are the only guideposts; indeed, it makes very clear that they are not-explaining away the earlier opinions that do not really follow these "guideposts" on the basis of additional factors, thereby "re- iterat[ing] our rejection of a categorical approach." Ante, at 582. In other words, even these utter platitudes, if they should ever happen to produce an answer, may be overridden by other unnamed considerations. The Court has con- structed a framework that does not genuinely constrain, that does not inform state legislatures and lower courts-that does nothing at all except confer an artificial air of doctrinal analysis upon its essentially ad hoc determination that this particular award of punitive damages was not "fair." The Court distinguishes today's result from Haslip and TXO partly on the ground that "the record in this case discloses no deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive, such as were present in Haslip and TXO." Ante, at 579. This seemingly rejects the findings necessarily made by the jury-that petitioner had committed a fraud that was "gross, oppressive, or malicious," Ala. Code § 6­11­20(b)(1) (1993). Perhaps that rejection is intentional; the Court does not say. The relationship between judicial application of the new "guideposts" and jury findings poses a real problem for the Court, since as a matter of logic there is no more justification for ignoring the jury's determination as to how reprehensible petitioner's conduct was (i. e., how much it deserves to be punished), than there is for ignoring its determination that it was reprehensible at all (i. e., that the wrong was willful and punitive damages are therefore recoverable). That the issue has been framed in terms of a constitutional right against unreasonably excessive awards should not obscure 517US2$52K 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 607 Ginsburg, J., dissenting the fact that the logical and necessary consequence of the Court's approach is the recognition of a constitutional right against unreasonably imposed awards as well. The eleva- tion of "fairness" in punishment to a principle of "substantive due process" means that every punitive award unreasonably imposed is unconstitutional; such an award is by definition excessive, since it attaches a penalty to conduct undeserving of punishment. Indeed, if the Court is correct, it must be that every claim that a state jury's award of compensatory damages is "unreasonable" (because not supported by the evidence) amounts to an assertion of constitutional injury. See TXO, supra, at 471 (Scalia, J., concurring in judgment). And the same would be true for determinations of liability. By today's logic, every dispute as to evidentiary sufficiency in a state civil suit poses a question of constitutional mo- ment, subject to review in this Court. That is a stupefy- ing proposition. For the foregoing reasons, I respectfully dissent. Justice Ginsburg, with whom The Chief Justice joins, dissenting. The Court, I am convinced, unnecessarily and unwisely ventures into territory traditionally within the States' do- main, and does so in the face of reform measures recently adopted or currently under consideration in legislative are- nas. The Alabama Supreme Court, in this case, endeavored to follow this Court's prior instructions; and, more recently, Alabama's highest court has installed further controls on awards of punitive damages (see infra, at 613­614, n. 6). I would therefore leave the state court's judgment undis- turbed, and resist unnecessary intrusion into an area domi- nantly of state concern. I The respect due the Alabama Supreme Court requires that we strip from this case a false issue: No impermissible "ex- traterritoriality" infects the judgment before us; the exces- 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT 608 BMW OF NORTH AMERICA, INC. v. GORE Ginsburg, J., dissenting siveness of the award is the sole issue genuinely presented. The Court ultimately so recognizes, see ante, at 573­574, but further clarification is in order. Dr. Gore's experience was not unprecedented among customers who bought BMW vehicles sold as flawless and brand-new. In addition to his own encounter, Gore showed, through paint repair orders introduced at trial, that on 983 other occasions since 1983, BMW had shipped new vehicles to dealers without disclosing paint repairs costing at least $300, Tr. 585­586; at least 14 of the repainted vehicles, the evidence also showed, were sold as new and undamaged to consumers in Alabama. 646 So. 2d 619, 623 (Ala. 1994). Sales nationwide, Alabama's Supreme Court said, were ad- missible "as to the issue of a `pattern and practice' of such acts." Id., at 627. There was "no error," the court reiter- ated, "in the admission of the evidence that showed how per- vasive the nondisclosure policy was and the intent behind BMW NA's adoption of it." Id., at 628. That determination comports with this Court's expositions. See TXO Produc- tion Corp. v. Alliance Resources Corp., 509 U. S. 443, 462, and n. 28 (1993) (characterizing as "well-settled" the admissi- bility of "evidence of [defendant's] alleged wrongdoing in other parts of the country" and of defendant's "wealth"); see also Brief for Petitioner 22 (recognizing that similar acts, out-of-state, traditionally have been considered relevant "for the limited purpose of determining that the conduct before the [c]ourt was reprehensible because it was part of a pat- tern rather than an isolated incident"). Alabama's highest court next declared that the "jury could not use the number of similar acts that a defendant has committed in other jurisdictions as a mul- tiplier when determining the dollar amount of a puni- tive damages award. Such evidence may not be consid- ered in setting the size of the civil penalty, because neither the jury nor the trial court had evidence before it showing in which states the conduct was wrong- 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 609 Ginsburg, J., dissenting ful." 646 So. 2d, at 627 (emphasis in original) (footnote omitted). Because the Alabama Supreme Court provided this clear statement of the State's law, the multiplier problem encoun- tered in Gore's case is not likely to occur again. Now, as a matter of Alabama law, it is plainly impermissible to assess punitive damages by multiplication based on out-of-state events not shown to be unlawful. See, e. g., Independent Life and Accident Ins. Co. v. Harrington, 658 So. 2d 892, 902­903 (Ala. 1994) (under BMW v. Gore, trial court erred in relying on defendant insurance company's out-of-state in- surance policies in determining harm caused by defendant's unlawful actions). No Alabama authority, it bears emphasis-no statute, judi- cial decision, or trial judge instruction-ever countenanced the jury's multiplication of the $4,000 diminution in value estimated for each refinished car by the number of such cars (approximately 1,000) shown to have been sold nationwide. The sole prompt to the jury to use nationwide sales as a multiplier came from Gore's lawyer during summation. App. 31, Tr. 812­813. Notably, counsel for BMW failed to object to Gore's multiplication suggestion, even though BMW's counsel interrupted to make unrelated objections four other times during Gore's closing statement. Tr. 810­ 811, 854­855, 858, 870­871. Nor did BMW's counsel request a charge instructing the jury not to consider out-of-state sales in calculating the punitive damages award. See Rec- ord 513­529 (listing all charges requested by counsel). Following the verdict, BMW's counsel challenged the ad- mission of the paint repair orders, but not, alternately, the jury's apparent use of the orders in a multiplication exercise. Curiously, during postverdict argument, BMW's counsel urged that if the repair orders were indeed admissible, then Gore would have a "full right" to suggest a multiplier-based disgorgement. Tr. 932. 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT 610 BMW OF NORTH AMERICA, INC. v. GORE Ginsburg, J., dissenting In brief, Gore's case is idiosyncratic. The jury's improper multiplication, tardily featured by petitioner, is unlikely to recur in Alabama and does not call for error correction by this Court. Because the jury apparently (and erroneously) had used acts in other States as a multiplier to arrive at a $4 million sum for punitive damages, the Alabama Supreme Court itself determined " `the maximum amount that a properly function- ing jury could have awarded.' " 646 So. 2d, at 630 (Houston, J., concurring specially) (quoting Big B, Inc. v. Cottingham, 634 So. 2d 999, 1006 (Ala. 1993)). The per curiam opinion emphasized that in arriving at $2 million as "the amount of punitive damages to be awarded in this case, [the court did] not consider those acts that occurred in other jurisdictions." 646 So. 2d, at 628 (emphasis in original). As this Court rec- ognizes, the Alabama high court "properly eschewed reliance on BMW's out-of-state conduct and based its remitted award solely on conduct that occurred within Alabama." Ante, at 573­574 (citation omitted). In sum, the Alabama Supreme Court left standing the jury's decision that the facts war- ranted an award of punitive damages-a determination not contested in this Court-and the state court concluded that, considering only acts in Alabama, $2 million was "a constitu- tionally reasonable punitive damages award." 646 So. 2d, at 629. II A Alabama's Supreme Court reports that it "thoroughly and painstakingly" reviewed the jury's award, ibid., according to principles set out in its own pathmarking decisions and in this Court's opinions in TXO and Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 21 (1991). 646 So. 2d, at 621. The Alabama court said it gave weight to several factors, includ- ing BMW's deliberate ("reprehensible") presentation of re- finished cars as new and undamaged, without disclosing that the value of those cars had been reduced by an estimated 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 611 Ginsburg, J., dissenting 10%,1 the financial position of the defendant, and the costs of litigation. Id., at 625­626. These standards, we previously held, "impos[e] a sufficiently definite and meaningful con- straint on the discretion of Alabama factfinders in awarding punitive damages." Haslip, 499 U. S., at 22; see also TXO, 509 U. S., at 462, n. 28. Alabama's highest court could have displayed its labor pains more visibly,2 but its judgment is nonetheless entitled to a presumption of legitimacy. See Rowan v. Runnels, 5 How. 134, 139 (1847) ("[T]his court will always feel itself bound to respect the decisions of the State courts, and from the time they are made will regard them as conclusive in all cases upon the construction of their own constitution and laws."). We accept, of course, that Alabama's Supreme Court applied the State's own law correctly. Under that law, the State's objectives-"punishment and deterrence"-guide pu- nitive damages awards. See Birmingham v. Benson, 631 So. 2d 902, 904 (Ala. 1994). Nor should we be quick to find a constitutional infirmity when the highest state court en- deavored a corrective for one counsel's slip and the other's oversight-counsel for plaintiff's excess in summation, unob- jected to by counsel for defendant, see supra, at 609-and when the state court did so intending to follow the process approved in our Haslip and TXO decisions. B The Court finds Alabama's $2 million award not simply excessive, but grossly so, and therefore unconstitutional. 1 According to trial testimony, in late May 1992, BMW began redirecting refinished cars out of Alabama and two other States. Tr. 964. The jury returned its verdict in favor of Gore on June 12, 1992. Five days later, BMW changed its national policy to one of full disclosure. Id., at 1026. 2 See, e. g., Brief for Law and Economics Scholars et al. as Amici Curiae 6­28 (economic analysis demonstrates that Alabama Supreme Court's judgment was not unreasonable); W. Landes & R. Posner, Economic Struc- ture of Tort Law 160­163 (1987) (economic model for assessing propriety of punitive damages in certain tort cases). 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT 612 BMW OF NORTH AMERICA, INC. v. GORE Ginsburg, J., dissenting The decision leads us further into territory traditionally within the States' domain,3 and commits the Court, now and again, to correct "misapplication of a properly stated rule of law." But cf. this Court's Rule 10 ("A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a prop- erly stated rule of law.").4 The Court is not well equipped 3 See ante, at 568 ("In our federal system, States necessarily have con- siderable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case."); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 278 (1989) (In any "lawsuit where state law provides the basis of decision, the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law."); Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 255 (1984) ("Punitive damages have long been a part of tradi- tional state tort law."). 4 Petitioner invites the Court to address the question of multiple puni- tive damages awards stemming from the same alleged misconduct. The Court does not take up the invitation, and rightly so, in my judgment, for this case does not present the issue. For three reasons, the question of multiple awards is hypothetical, not real, in Gore's case. First, the puni- tive damages award in favor of Gore is the only such award yet entered against BMW on account of its nondisclosure policy. Second, BMW did not raise the issue of multiple punitives below. In- deed, in its reply brief before the Alabama Supreme Court, BMW stated: "Gore confuses our point about fairness among plaintiffs. He treats this point as a premature `multiple punitive damages' argument. But, con- trary to Gore's contention, we are not asking this Court to hold, as a matter of law, that a `constitutional violation occurs when a defendant is subjected to punitive damages in two separate cases.' " Reply Brief for Appellant in Nos. 1920324, 1920325 (Ala. Sup. Ct.), p. 48 (internal cita- tions omitted). Third, if BMW had already suffered a punitive damages judgment in connection with its nondisclosure policy, Alabama's highest court presum- ably would have taken that fact into consideration. In reviewing punitive damages awards attacked as excessive, the Alabama Supreme Court con- siders whether "there have been other civil actions against the same de- fendant, based on the same conduct." 646 So. 2d 619, 624 (1994) (quoting Green Oil Co. v. Hornsby, 539 So. 2d 218, 224 (Ala. 1989)). If so, "this 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 613 Ginsburg, J., dissenting for this mission. Tellingly, the Court repeats that it brings to the task no "mathematical formula," ante, at 582, no "cate- gorical approach," ibid., no "bright line," ante, at 585. It has only a vague concept of substantive due process, a "raised eyebrow" test, see ante, at 583, as its ultimate guide.5 In contrast to habeas corpus review under 28 U. S. C. § 2254, the Court will work at this business alone. It will not be aided by the federal district courts and courts of ap- peals. It will be the only federal court policing the area. The Court's readiness to superintend state-court punitive damages awards is all the more puzzling in view of the Court's longstanding reluctance to countenance review, even by courts of appeals, of the size of verdicts returned by juries in federal district court proceedings. See generally 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Proce- dure § 2820 (2d ed. 1995). And the reexamination prominent in state courts 6 and in legislative arenas, see Appendix, should be taken into account in mitigation of the punitive damages award." 646 So. 2d, at 624. The Alabama court accordingly observed that Gore's counsel had filed 24 other actions against BMW in Alabama and Georgia, but that no other punitive damages award had so far resulted. Id., at 626. 5 Justice Breyer's concurring opinion offers nothing more solid. Under Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1 (1991), he acknowl- edges, Alabama's standards for punitive damages, standing alone, do not violate due process. Ante, at 588. But they "invit[e] the kind of scrutiny the Court has given the particular verdict before us." Ibid. Pursuing that invitation, Justice Breyer concludes that, matching the particular facts of this case to Alabama's "legitimate punitive damages objectives," ante, at 596, the award was " `gross[ly] excessiv[e],' " ante, at 597. The exercise is engaging, but ultimately tells us only this: too big will be judged unfair. What is the Court's measure of too big? Not a cap of the kind a legislature could order, or a mathematical test this Court can divine and impose. Too big is, in the end, the amount at which five Members of the Court bridle. 6 See, e. g., Distinctive Printing and Packaging Co. v. Cox, 232 Neb. 846, 857, 443 N. W. 2d 566, 574 (1989) (per curiam) ("[P]unitive, vindictive, or exemplary damages contravene Neb. Const. art. VII, § 5, and thus are not allowed in this jurisdiction."); Santana v. Registrars of Voters of Worces- ter, 398 Mass. 862, 502 N. E. 2d 132 (1986) (punitive damages are not per- mitted, unless expressly authorized by statute); Fisher Properties, Inc. v. 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT 614 BMW OF NORTH AMERICA, INC. v. GORE Appendix to opinion of Ginsburg, J. infra this page, serves to underscore why the Court's enter- prise is undue. For the reasons stated, I dissent from this Court's disturb- ance of the judgment the Alabama Supreme Court has made. APPENDIX TO OPINION OF GINSBURG, J. State Legislative Activity Regarding Punitive Damages State legislatures have in the hopper or have enacted a variety of measures to curtail awards of punitive damages. At least one state legislature has prohibited punitive dam- ages altogether, unless explicitly provided by statute. See N. H. Rev. Stat. Ann. § 507:16 (1994). We set out in this appendix some of the several controls enacted or under con- sideration in the States. The measures surveyed are: (1) caps on awards; (2) provisions for payment of sums to state agencies rather than to plaintiffs; and (3) mandatory bifur- cated trials with separate proceedings for punitive damages determinations. Arden-Mayfair, Inc., 106 Wash. 2d 826, 852, 726 P. 2d 8, 23 (1986) (en banc) (same). In Life Ins. Co. of Georgia v. Johnson, No. 1940357 (Nov. 17, 1995), the Alabama Supreme Court revised the State's regime for assessments of punitive damages. Henceforth, trials will be bifurcated. Initially, juries will be instructed to determine liability and the amount of compensatory damages, if any; also, the jury is to return a special verdict on the question whether a punitive damages award is warranted. If the jury answers yes to the punitive damages question, the trial will be resumed for the presentation of evidence and instructions relevant to the amount appro- priate to award as punitive damages. After postverdict trial court review and subsequent appellate review, the amount of the final punitive damages judgment will be paid into the trial court. The trial court will then order payment of litigation expenses, including the plaintiff's attorney's fees, and instruct the clerk to divide the remainder equally between the plaintiff and the State General Fund. The provision for payment to the State General Fund is applicable to all judgments not yet satisfied, and therefore would apply to the judgment in Gore's case. 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 615 Appendix to opinion of Ginsburg, J. I. Caps on Punitive Damages Awards * Colorado-Colo. Rev. Stat. §§ 13­21­102(1)(a) and (3) (1987) (as a main rule, caps punitive damages at amount of actual damages). * Connecticut-Conn. Gen. Stat. § 52­240b (1995) (caps punitive damages at twice compensatory damages in prod- ucts liability cases). * Delaware-H. R. 237, 138th Gen. Ass. (introduced May 17, 1995) (would cap punitive damages at greater of three times compensatory damages, or $250,000). * Florida-Fla. Stat. §§ 768.73(1)(a) and (b) (Supp. 1992) (in general, caps punitive damages at three times compensa- tory damages). * Georgia-Ga. Code Ann. § 51­12­5.1 (Supp. 1995) (caps punitive damages at $250,000 in some tort actions; prohibits multiple awards stemming from the same predicate conduct in products liability actions). * Illinois-H. 20, 89th Gen. Ass. 1995­1996 Reg. Sess. (enacted Mar. 9, 1995) (caps punitive damages at three times economic damages). * Indiana-H. 1741, 109th Reg. Sess. (enacted Apr. 26, 1995) (caps punitive damages at greater of three times com- pensatory damages, or $50,000). * Kansas-Kan. Stat. Ann. §§ 60­3701(e) and (f) (1994) (in general, caps punitive damages at lesser of defendant's an- nual gross income, or $5 million). * Maryland-S. 187, 1995 Leg. Sess. (introduced Jan. 27, 1995) (in general, would cap punitive damages at four times compensatory damages). * Minnesota-S. 489, 79th Leg. Sess., 1995 Reg. Sess. (in- troduced Feb. 16, 1995) (would require reasonable relation- ship between compensatory and punitive damages). * Nevada-Nev. Rev. Stat. § 42.005(1) (1993) (caps punitive damages at three times compensatory damages if compensa- tory damages equal $100,000 or more, and at $300,000 if the compensatory damages are less than $100,000). 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT 616 BMW OF NORTH AMERICA, INC. v. GORE Appendix to opinion of Ginsburg, J. * New Jersey-S. 1496, 206th Leg., 2d Ann. Sess. (1995) (caps punitive damages at greater of five times compensatory damages, or $350,000, in certain tort cases). * North Dakota-N. D. Cent. Code § 32­03.2­11(4) (Supp. 1995) (caps punitive damages at greater of two times com- pensatory damages, or $250,000). * Oklahoma-Okla. Stat., Tit. 23, §§ 9.1(B)­(D) (Supp. 1996) (caps punitive damages at greater of $100,000, or actual damages, if jury finds defendant guilty of reckless disregard; and at greatest of $500,000, twice actual damages, or the ben- efit accruing to defendant from the injury-causing conduct, if jury finds that defendant has acted intentionally and maliciously). * Texas-S. 25, 74th Reg. Sess. (enacted Apr. 20, 1995) (caps punitive damages at twice economic damages, plus up to $750,000 additional noneconomic damages). * Virginia-Va. Code Ann. § 8.01­38.1 (1992) (caps puni- tive damages at $350,000). II. Allocation of Punitive Damages to State Agencies * Arizona-H. R. 2279, 42d Leg., 1st Reg. Sess. (intro- duced Jan. 12, 1995) (would allocate punitive damages to a victims' assistance fund, in specified circumstances). * Florida-Fla. Stat. §§ 768.73(2)(a)­(b) (Supp. 1992) (allo- cates 35% of punitive damages to General Revenue Fund or Public Medical Assistance Trust Fund); see Gordon v. State, 585 So. 2d 1033, 1035­1038 (Fla. App. 1991), aff'd, 608 So. 2d 800 (Fla. 1992) (upholding provision against due process challenge). * Georgia-Ga. Code Ann. § 51­12­5.1(e)(2) (Supp. 1995) (allocates 75% of punitive damages, less a proportionate part of litigation costs, including counsel fees, to state treasury); see Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 540­543, 436 S. E. 2d 635, 637­639 (Ga. 1993) (upholding provision against constitutional challenge). 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 617 Appendix to opinion of Ginsburg, J. * Illinois-Ill. Comp. Stat., ch. 735, § 5/2­1207 (1994) (per- mits court to apportion punitive damages among plaintiff, plaintiff's attorney, and Illinois Department of Rehabilita- tion Services). * Indiana-H. 1741, 109th Reg. Sess. (enacted Apr. 26, 1995) (subject to statutory exceptions, allocates 75% of pu- nitive damages to a compensation fund for violent crime victims). * Iowa-Iowa Code § 668A.1(2)(b) (1987) (in described cir- cumstances, allocates 75% of punitive damages, after pay- ment of costs and counsel fees, to a civil reparations trust fund); see Shepherd Components, Inc. v. Brice Petrides- Donohue & Assoc., Inc., 473 N. W. 2d 612, 619 (Iowa 1991) (upholding provision against constitutional challenge). * Kansas-Kan. Stat. Ann. § 60­3402(e) (1994) (allocates 50% of punitive damages in medical malpractice cases to state treasury). * Missouri-Mo. Rev. Stat. § 537.675 (1994) (allocates 50% of punitive damages, after payment of expenses and counsel fees, to Tort Victims' Compensation Fund). * Montana-H. 71, 54th Leg. Sess. (introduced Jan. 2, 1995) (would allocate 48% of punitive damages to state uni- versity system and 12% to school for the deaf and blind). * New Jersey-S. 291, 206th Leg., 1994­1995 1st Reg. Sess. (introduced Jan. 18, 1994); A. 148, 206th Leg., 1994­ 1995 1st Reg. Sess. (introduced Jan. 11, 1994) (would allocate 75% of punitive damages to New Jersey Health Care Trust Fund). * New Mexico-H. 1017, 42d Leg., 1st Sess. (introduced Feb. 16, 1995) (would allocate punitive damages to Low- Income Attorney Services Fund). * Oregon-S. 482, 68th Leg. Ass. (enacted July 19, 1995) (amending Ore. Rev. Stat. §§ 18.540 and 30.925, and repealing Ore. Rev. Stat. § 41.315) (allocates 60% of punitive damages to Criminal Injuries Compensation Account). 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT 618 BMW OF NORTH AMERICA, INC. v. GORE Appendix to opinion of Ginsburg, J. * Utah-Utah Code Ann. § 78­18­1(3) (1992) (allocates 50% of punitive damages in excess of $20,000 to state treasury). III. Mandatory Bifurcation of Liability and Punitive Damages Determinations * California-Cal. Civ. Code Ann. § 3295(d) (West Supp. 1995) (requires bifurcation, on application of defendant, of liability and damages phases of trials in which punitive dam- ages are requested). * Delaware-H. R. 237, 138th Gen. Ass. (introduced May 17, 1995) (would require, at request of any party, a separate proceeding for determination of punitive damages). * Georgia-Ga. Code Ann. § 51­12­5.1(d) (Supp. 1995) (in all cases in which punitive damages are claimed, liability for punitive damages is tried first, then amount of punitive damages). * Illinois-H. 20, 89th Gen. Ass., 1995­1996 Reg. Sess. (enacted Mar. 9, 1995) (mandates, upon defendant's request, separate proceeding for determination of punitive damages). * Kansas-Kan. Stat. Ann. §§ 60­3701(a) and (b) (1994) (trier of fact determines defendant's liability for punitive damages, then court determines amount of such damages). * Missouri-Mo. Rev. Stat. §§ 510.263(1) and (3) (1994) (mandates bifurcated proceedings, on request of any party, for jury to determine first whether defendant is liable for punitive damages, then amount of punitive damages). * Montana-Mont. Code Ann. § 27­1­221(7) (1995) (upon finding defendant liable for punitive damages, jury deter- mines the amount in separate proceeding). * Nevada-Nev. Rev. Stat. § 42.005(3) (1993) (if jury de- termines that punitive damages will be awarded, jury then determines amount in separate proceeding). * New Jersey-N. J. Stat. Ann. §§ 2A:58C­5(b) and (d) (West 1987) (mandates separate proceedings for determina- tion of compensatory and punitive damages). 517US2$52P 02-07-99 18:49:46 PAGES OPINPGT Cite as: 517 U. S. 559 (1996) 619 Appendix to opinion of Ginsburg, J. * North Dakota-N. D. Cent. Code § 32­03.2­11(2) (Supp. 1995) (upon request of either party, trier of fact determines whether compensatory damages will be awarded before de- termining punitive damages liability and amount). * Oklahoma-Okla. Stat., Tit. 23, §§ 9.1(B)­(D) (Supp. 1995­1996) (requires separate jury proceedings for punitive damages); S. 443, 45th Leg., 1st Reg. Sess. (introduced Jan. 31, 1995) (would require courts to strike requests for punitive damages before trial, unless plaintiff presents prima facie evidence at least 30 days before trial to sustain such dam- ages; provide for bifurcated jury trial on request of defend- ant; and permit punitive damages only if compensatory dam- ages are awarded). * Virginia-H. 1070, 1994­1995 Reg. Sess. (introduced Jan. 25, 1994) (would require separate proceedings in which court determines that punitive damages are appropriate and trier of fact determines amount of punitive damages). 517US2$53Z 02-07-99 18:56:56 PAGES OPINPGT 620 OCTOBER TERM, 1995 Syllabus ROMER, GOVERNOR OF COLORADO, et al. v. EVANS et al. certiorari to the supreme court of colorado No. 94­1039. Argued October 10, 1995-Decided May 20, 1996 After various Colorado municipalities passed ordinances banning discrimi- nation based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transac- tions and activities, Colorado voters adopted by statewide referendum "Amendment 2" to the State Constitution, which precludes all legisla- tive, executive, or judicial action at any level of state or local govern- ment designed to protect the status of persons based on their "homosex- ual, lesbian or bisexual orientation, conduct, practices or relationships." Respondents, who include aggrieved homosexuals and municipalities, commenced this litigation in state court against petitioner state parties to declare Amendment 2 invalid and enjoin its enforcement. The trial court's grant of a preliminary injunction was sustained by the Colorado Supreme Court, which held that Amendment 2 was subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amend- ment because it infringed the fundamental right of gays and lesbians to participate in the political process. On remand, the trial court found that the amendment failed to satisfy strict scrutiny. It enjoined Amend- ment 2's enforcement, and the State Supreme Court affirmed. Held: Amendment 2 violates the Equal Protection Clause. Pp. 626­636. (a) The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them spe- cial rights is rejected as implausible. The extent of the change in legal status effected by this law is evident from the authoritative construction of Colorado's Supreme Court-which establishes that the amendment's immediate effect is to repeal all existing statutes, regulations, ordi- nances, and policies of state and local entities barring discrimination based on sexual orientation, and that its ultimate effect is to prohibit any governmental entity from adopting similar, or more protective, measures in the future absent state constitutional amendment-and from a review of the terms, structure, and operation of the ordinances that would be repealed and prohibited by Amendment 2. Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection 517US2$53Z 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 621 Syllabus from injuries caused by discrimination in a wide range of public and private transactions. Pp. 626­631. (b) In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. See, e. g., Heller v. Doe, 509 U. S. 312, 319­320. Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board. This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense. Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and les- bians shall not have any particular protections from the law, is so far removed from the reasons offered for it, i. e., respect for other citizens' freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality, and the State's inter- est in conserving resources to fight discrimination against other groups, that the amendment cannot be explained by reference to those reasons; the amendment raises the inevitable inference that it is born of animos- ity toward the class that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. Pp. 631­636. 882 P. 2d 1335, affirmed. Kennedy, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 636. Timothy M. Tymkovich, Solicitor General of Colorado, ar- gued the cause for petitioners. With him on the briefs were Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, John Daniel Dailey and Paul Farley, Deputy Attorneys General, and Rex E. Lee and Carter G. Phillips, Special Assistant Attorneys General. Jean E. Dubofsky argued the cause for respondents. With her on the brief for respondents Evans et al. were Rod- 517US2$53Z 02-07-99 18:56:56 PAGES OPINPGT 622 ROMER v. EVANS Counsel erick M. Hills, Jr., Matthew Coles, Steven R. Shapiro, Clyde J. Wadsworth, Suzanne B. Goldberg, Jeanne Winer, Gregory A. Eurich, David H. Miller, Darlene M. Ebert, Joseph N. de Raismes III, and Walter A. Smith, Jr. John P. Worcester and Edward M. Caswall filed a brief for respondents City of Aspen et al.* *Briefs of amici curiae urging reversal were filed for the State of Ala- bama et al. by Charles J. Cooper, and by the Attorneys General for their respective States as follows: Jeff Sessions of Alabama, Daniel E. Lungren of California, Alan G. Lance of Idaho, Don Stenberg of Nebraska, Charles Molony Condon of South Carolina, Mark Barnett of South Dakota, and James S. Gilmore III of Virginia; for the American Center for Law and Justice Family Life Project by Jay Alan Sekulow and Keith A. Fournier; for the Christian Legal Society et al. by Steven T. McFarland, Samuel B. Casey, Gregory S. Baylor, and John K. Hulston Hall; for Colorado for Family Values by Robert K. Skolrood; for Concerned Women for America, Inc., by David J. Myers and Wendell R. Bird; for Equal Rights, Not Spe- cial Rights, Inc., by Michael A. Carvin, William L. McGrath, and Robert H. Bork; for the Family Research Council by Melissa Wells-Petry; for the Pacific Legal Foundation by Anthony T. Caso and Deborah J. La Fetra; and for the Oregon Citizens Alliance et al. by Lawrence J. Hall. Briefs of amici curiae urging affirmance were filed for the State of Oregon et al. by Theodore R. Kulongoski, Attorney General of Oregon, Thomas A. Balmer, Deputy Attorney General, Virginia L. Linder, Solici- tor General, Michael D. Reynolds, Assistant Solicitor General, and Rives Kistler, Assistant Attorney General, Thomas J. Miller, Attorney General of Iowa, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Hubert H. Humphrey III, Attorney General of Minnesota, Frankie Sue Del Papa, Attorney Gen- eral of Nevada, Christine O. Gregoire, Attorney General of Washington, and Garland Pinkston, Jr., Acting Corporation Counsel of the District of Columbia; for the City of Atlanta et al. by Louise H. Renne, Dennis After- gut, Burk E. Delventhal, Julia M. C. Friedlander, Mary Carole Cooney, Robin Joy Shahar, Neal M. Janey, Stephen H. Clark, James K. Hahn, David I. Schulman, Eunice Gibson, Paul A. Crotty, Leonard A. Kerner, Jeffrey L. Rogers, Linda Meng, Janet E. Halley, Mark H. Sidran, Henry W. Underhill, Jr., and Susan S. Sher; for Affirmation: United Methodists for Gay, Lesbian and Bisexual Concerns et al. by Celeste McCollough; for the American Bar Association by George E. Bushnell, Jr.; for the Amer- ican Association on Mental Retardation et al. by James W. Ellis and Maureen A. Sanders; for The American Federation of State, County and 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 623 Opinion of the Court Justice Kennedy delivered the opinion of the Court. One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law's neu- trality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution. I The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as "Amendment 2," its designation when submit- ted to the voters. The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. For example, the cities of Aspen and Boulder and the city and County of Denver each had Municipal Employees, AFL­CIO, by John C. Dempsey and Larry P. Weinberg; for the American Friends Service Committee et al. by Stark Ritchie; for the American Psychological Association et al. by Paul M. Smith, James L. McHugh, Jr., and Richard G. Taranto; for the Asian American Legal Defense and Education Fund et al. by Eben Moglen and Pamela S. Karlan; for the Colorado Bar Association et al. by Stephen V. Bomse, Martha Minow, and Frances A. Koncilja; for the Gay and Lesbian Lawyers of Philadelphia by Cletus P. Lyman; for the NAACP Legal De- fense and Educational Fund, Inc., et al. by Eric Schnapper, Elaine R. Jones, Theodore M. Shaw, Antonia Hernandez, Judith L. Lichtman, and Donna R. Lenhoff; for the National Bar Association by J. Clay Smith, Jr.; for the National Education Association et al. by Robert H. Chanin and John M. West; for James E. Andrews by Eric J. Graninger; and for Lau- rence H. Tribe et al. by Mr. Tribe, pro se, John Hart Ely, pro se, Philip B. Kurland, pro se, and Kathleen M. Sullivan, pro se. Chai R. Feldblum filed a brief for the Human Rights Campaign Fund et al. as amici curiae. 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT 624 ROMER v. EVANS Opinion of the Court enacted ordinances which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services. Denver Rev. Municipal Code, Art. IV, §§ 28­91 to 28­116 (1991); Aspen Municipal Code § 13­98 (1977); Boulder Rev. Code §§ 12­1­1 to 12­1­11 (1987). What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. See Boulder Rev. Code § 12­1­1 (defin- ing "sexual orientation" as "the choice of sexual partners, i. e., bisexual, homosexual or heterosexual"); Denver Rev. Municipal Code, Art. IV, § 28­92 (defining "sexual orienta- tion" as "[t]he status of an individual as to his or her hetero- sexuality, homosexuality or bisexuality"). Amendment 2 repeals these ordinances to the extent they prohibit discrimi- nation on the basis of "homosexual, lesbian or bisexual orien- tation, conduct, practices or relationships." Colo. Const., Art. II, § 30b. Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, ex- ecutive or judicial action at any level of state or local govern- ment designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads: "No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or re- lationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Consti- tution shall be in all respects self-executing." Ibid. 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 625 Opinion of the Court Soon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its enforcement was com- menced in the District Court for the City and County of Den- ver. Among the plaintiffs (respondents here) were homo- sexual persons, some of them government employees. They alleged that enforcement of Amendment 2 would subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation. Other plaintiffs (also respondents here) included the three municipalities whose ordinances we have cited and certain other governmental entities which had acted earlier to protect homosexuals from discrimination but would be prevented by Amendment 2 from continuing to do so. Although Governor Romer had been on record opposing the adoption of Amendment 2, he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado. The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim in- junction and remanding the case for further proceedings, the State Supreme Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to par- ticipate in the political process. Evans v. Romer, 854 P. 2d 1270 (Colo. 1993) (Evans I). To reach this conclusion, the state court relied on our voting rights cases, e. g., Reynolds v. Sims, 377 U. S. 533 (1964); Carrington v. Rash, 380 U. S. 89 (1965); Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966); Williams v. Rhodes, 393 U. S. 23 (1968), and on our precedents involving discriminatory restructuring of govern- mental decisionmaking, see, e. g., Hunter v. Erickson, 393 U. S. 385 (1969); Reitman v. Mulkey, 387 U. S. 369 (1967); Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982); Gordon v. Lance, 403 U. S. 1 (1971). On remand, the State advanced various arguments in an effort to show that 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT 626 ROMER v. EVANS Opinion of the Court Amendment 2 was narrowly tailored to serve compelling in- terests, but the trial court found none sufficient. It enjoined enforcement of Amendment 2, and the Supreme Court of Colorado, in a second opinion, affirmed the ruling. 882 P. 2d 1335 (1994) (Evans II). We granted certiorari, 513 U. S. 1146 (1995), and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court. II The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment's language is implausible. We rely not upon our own interpretation of the amendment but upon the au- thoritative construction of Colorado's Supreme Court. The state court, deeming it unnecessary to determine the full ex- tent of the amendment's reach, found it invalid even on a modest reading of its implications. The critical discussion of the amendment, set out in Evans I, is as follows: "The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordi- nances, and policies of state and local entities that barred discrimination based on sexual orientation. See Aspen, Colo., Mun. Code § 13­98 (1977) (prohibiting dis- crimination in employment, housing and public accom- modations on the basis of sexual orientation); Boulder, Colo., Rev. Code §§ 12­1­2 to ­4 (1987) (same); Denver, Colo., Rev. Mun. Code art. IV, §§ 28­91 to ­116 (1991) (same); Executive Order No. D0035 (December 10, 1990) (prohibiting employment discrimination for `all state employees, classified and exempt' on the basis of sexual orientation); Colorado Insurance Code, § 10­3­1104, 4A C. R. S. (1992 Supp.) (forbidding health insurance pro- viders from determining insurability and premiums based on an applicant's, a beneficiary's, or an insured's 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 627 Opinion of the Court sexual orientation); and various provisions prohibit- ing discrimination based on sexual orientation at state colleges.26 "26 Metropolitan State College of Denver prohibits college spon- sored social clubs from discriminating in membership on the basis of sexual orientation and Colorado State University has an antidiscrimi- nation policy which encompasses sexual orientation. "The `ultimate effect' of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures." 854 P. 2d, at 1284­ 1285, and n. 26. Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordi- nances the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state de- cree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimi- nation, and it forbids reinstatement of these laws and policies. The change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern antidiscrimination laws. That struc- ture is well illustrated by contemporary statutes and ordi- nances prohibiting discrimination by providers of public ac- commodations. "At common law, innkeepers, smiths, and others who `made profession of a public employment,' were prohibited from refusing, without good reason, to serve a customer." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 571 (1995). The duty was a general one and did not specify protection for particular groups. The common-law rules, however, proved 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT 628 ROMER v. EVANS Opinion of the Court insufficient in many instances, and it was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations, Civil Rights Cases, 109 U. S. 3, 25 (1883). In consequence, most States have chosen to counter discrimination by enact- ing detailed statutory schemes. See, e. g., S. D. Codified Laws §§ 20­13­10, 20­13­22, 20­13­23 (1995); Iowa Code §§ 216.6­216.8 (1994); Okla. Stat., Tit. 25, §§ 1302, 1402 (1987); 43 Pa. Cons. Stat. §§ 953, 955 (Supp. 1995); N. J. Stat. Ann. §§ 10:5­3, 10:5­4 (West Supp. 1995); N. H. Rev. Stat. Ann. §§ 354­A:7, 354­A:10, 354­A:17 (1995); Minn. Stat. § 363.03 (1991 and Supp. 1995). Colorado's state and municipal laws typify this emerging tradition of statutory protection and follow a consistent pat- tern. The laws first enumerate the persons or entities sub- ject to a duty not to discriminate. The list goes well beyond the entities covered by the common law. The Boulder ordi- nance, for example, has a comprehensive definition of entities deemed places of "public accommodation." They include "any place of business engaged in any sales to the general public and any place that offers services, facilities, privileges, or advantages to the general public or that receives financial support through solicitation of the general public or through governmental subsidy of any kind." Boulder Rev. Code § 12­1­1(j) (1987). The Denver ordinance is of similar breadth, applying, for example, to hotels, restaurants, hospi- tals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and "shops and stores dealing with goods or services of any kind," Denver Rev. Municipal Code, Art. IV, § 28­92 (1991). These statutes and ordinances also depart from the com- mon law by enumerating the groups or persons within their ambit of protection. Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. In following this approach, Colorado's state and local governments have 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 629 Opinion of the Court not limited antidiscrimination laws to groups that have so far been given the protection of heightened equal protection scrutiny under our cases. See, e. g., J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 135 (1994) (sex); Lalli v. Lalli, 439 U. S. 259, 265 (1978) (illegitimacy); McLaughlin v. Florida, 379 U. S. 184, 191­192 (1964) (race); Oyama v. California, 332 U. S. 633 (1948) (ancestry). Rather, they set forth an extensive catalog of traits which cannot be the basis for dis- crimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political af- filiation, physical or mental disability of an individual or of his or her associates--and, in recent times, sexual orienta- tion. Aspen Municipal Code § 13­98(a)(1) (1977); Boulder Rev. Code §§ 12­1­1 to 12­1­4 (1987); Denver Rev. Municipal Code, Art. IV, §§ 28­92 to 28­119 (1991); Colo. Rev. Stat. §§ 24­34­401 to 24­34­707 (1988 and Supp. 1995). Amendment 2 bars homosexuals from securing protection against the injuries that these public-accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in hous- ing, sale of real estate, insurance, health and welfare serv- ices, private education, and employment. See, e. g., Aspen Municipal Code §§ 13­98(b), (c) (1977); Boulder Rev. Code §§ 12­1­2, 12­1­3 (1987); Denver Rev. Municipal Code, Art. IV, §§ 28­93 to 28­95, 28­97 (1991). Not confined to the private sphere, Amendment 2 also op- erates to repeal and forbid all laws or policies providing spe- cific protection for gays or lesbians from discrimination by every level of Colorado government. The State Supreme Court cited two examples of protections in the governmental sphere that are now rescinded and may not be reintroduced. The first is Colorado Executive Order D0035 (1990), which forbids employment discrimination against " `all state em- ployees, classified and exempt' on the basis of sexual orienta- tion." 854 P. 2d, at 1284. Also repealed, and now forbid- 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT 630 ROMER v. EVANS Opinion of the Court den, are "various provisions prohibiting discrimination based on sexual orientation at state colleges." Id., at 1284, 1285. The repeal of these measures and the prohibition against their future reenactment demonstrate that Amendment 2 has the same force and effect in Colorado's governmental sector as it does elsewhere and that it applies to policies as well as ordinary legislation. Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. See, e. g., Colo. Rev. Stat. § 24­4­106(7) (1988) (agency action sub- ject to judicial review under arbitrary and capricious stand- ard); § 18­8­405 (making it a criminal offense for a public servant knowingly, arbitrarily, or capriciously to refrain from performing a duty imposed on him by law); § 10­3­1104(1)(f) (prohibiting "unfair discrimination" in insurance); 4 Colo. Code of Regulations 801­1, Policy 11­1 (1983) (prohibiting discrimination in state employment on grounds of specified traits or "other non-merit factor"). At some point in the systematic administration of these laws, an official must de- termine whether homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid. If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitu- tional difficulties the law creates. The state court did not decide whether the amendment has this effect, however, and neither need we. In the course of rejecting the argument that Amendment 2 is intended to conserve resources to fight discrimination against suspect classes, the Colorado Su- 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 631 Opinion of the Court preme Court made the limited observation that the amend- ment is not intended to affect many antidiscrimination laws protecting nonsuspect classes, Romer II, 882 P. 2d, at 1346, n. 9. In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protec- tions does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are for- bidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against dis- crimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protec- tions taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transac- tions and endeavors that constitute ordinary civic life in a free society. III The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 271­272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920). We have at- tempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e. g., Heller v. Doe, 509 U. S. 312, 319­320 (1993). 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT 632 ROMER v. EVANS Opinion of the Court Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discon- tinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Taking the first point, even in the ordinary equal protec- tion case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and disci- pline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own author- ity. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particu- lar group, or if the rationale for it seems tenuous. See New Orleans v. Dukes, 427 U. S. 297 (1976) (tourism benefits justi- fied classification favoring pushcart vendors of certain lon- gevity); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955) (assumed health concerns justified law favoring optometrists over opticians); Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949) (potential traffic hazards justified exemption of vehicles advertising the owner's prod- ucts from general advertising ban); Kotch v. Board of River Port Pilot Comm'rs for Port of New Orleans, 330 U. S. 552 (1947) (licensing scheme that disfavored persons unrelated to current river boat pilots justified by possible efficiency and safety benefits of a closely knit pilotage system). The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 633 Opinion of the Court ascertain some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate leg- islative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 181 (1980) (Stevens, J., concurring) ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect"). Amendment 2 confounds this normal process of judicial re- view. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscrimi- nations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32, 37­38 (1928). It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. " `Equal protection of the laws is not achieved through indis- criminate imposition of inequalities.' " Sweatt v. Painter, 339 U. S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U. S. 1, 22 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT 634 ROMER v. EVANS Opinion of the Court is a pledge of the protection of equal laws.' " Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886)). Davis v. Beason, 133 U. S. 333 (1890), not cited by the parties but relied upon by the dissent, is not evidence that Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for sustaining the amendment is misplaced. In Davis, the Court approved an Idaho terri- torial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it "simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it." Id., at 347. To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful out- come. Dunn v. Blumstein, 405 U. S. 330, 337 (1972); cf. United States v. Brown, 381 U. S. 437 (1965); United States v. Robel, 389 U. S. 258 (1967). To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. See Richardson v. Ramirez, 418 U. S. 24 (1974). A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons af- fected. "[I]f the constitutional conception of `equal protec- tion of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of Agriculture v. Moreno, 413 U. S. 528, 534 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 635 Opinion of the Court (1973). Even laws enacted for broad and ambitious pur- poses often can be explained by reference to legitimate pub- lic policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in mak- ing a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it of- fends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate govern- mental purpose, Kadrmas v. Dickinson Public Schools, 487 U. S. 450, 462 (1988), and Amendment 2 does not. The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight dis- crimination against other groups. The breadth of the amendment is so far removed from these particular justifi- cations that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legiti- mate purpose or discrete objective. It is a status-based en- actment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ." Civil Rights Cases, 109 U. S., at 24. We must conclude that Amendment 2 classifies homosexu- als not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, 517US2$53L 02-07-99 18:56:56 PAGES OPINPGT 636 ROMER v. EVANS Scalia, J., dissenting and the judgment of the Supreme Court of Colorado is affirmed. It is so ordered. Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting. The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the man- ifestation of a " `bare . . . desire to harm' " homosexuals, ante, at 634, but is rather a modest attempt by seemingly toler- ant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeach- able under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court. In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, un- challenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U. S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was di- rected). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of pro- visions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexual- ity, ante, at 634, is evil. I vigorously dissent. 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 637 Scalia, J., dissenting I Let me first discuss Part II of the Court's opinion, its long- est section, which is devoted to rejecting the State's argu- ments that Amendment 2 "puts gays and lesbians in the same position as all other persons," and "does no more than deny homosexuals special rights," ante, at 626. The Court concludes that this reading of Amendment 2's language is "implausible" under the "authoritative construction" given Amendment 2 by the Supreme Court of Colorado. Ibid. In reaching this conclusion, the Court considers it unneces- sary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the "protec- tion [afforded by] general laws and policies that prohibit arbi- trary discrimination in governmental and private settings." Ante, at 630. I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for us. In the case below, 882 P. 2d 1335 (1994), the Colorado court stated: "[I]t is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination based on age, § 24­34­402(1)(a), 10A C. R. S. (1994 Supp.); marital or family status, § 24­34­502(1)(a), 10A C. R. S. (1994 Supp.); veterans' status, § 28­3­506, 11B C. R. S. (1989); and for any legal, off-duty conduct such as smoking tobacco, § 24­34­402.5, 10A C. R. S. (1994 Supp.). Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adop- tion of anti-discrimination laws intended to protect gays, lesbians, and bisexuals." Id., at 1346, n. 9 (em- phasis added). The Court utterly fails to distinguish this portion of the Col- orado court's opinion. Colorado Rev. Stat. § 24­34­402.5 (Supp. 1995), which this passage authoritatively declares not to be affected by Amendment 2, was respondents' primary 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT 638 ROMER v. EVANS Scalia, J., dissenting example of a generally applicable law whose protections would be unavailable to homosexuals under Amendment 2. See Brief for Respondents Evans et al. 11­12. The clear import of the Colorado court's conclusion that it is not af- fected is that "general laws and policies that prohibit arbi- trary discrimination" would continue to prohibit discrimina- tion on the basis of homosexual conduct as well. This analysis, which is fully in accord with (indeed, follows ines- capably from) the text of the constitutional provision, lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for ex- ample, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State or any mu- nicipality from making death-benefit payments to the "life partner" of a homosexual when it does not make such pay- ments to the long-time roommate of a nonhomosexual em- ployee. Or again, it does not affect the requirement of the State's general insurance laws that customers be afforded coverage without discrimination unrelated to anticipated risk. Thus, homosexuals could not be denied coverage, or charged a greater premium, with respect to auto collision insurance; but neither the State nor any municipality could require that distinctive health insurance risks associated with homosexuality (if there are any) be ignored. Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the Court's opinion ultimately does not dispute all this, but as- sumes it to be true. See ante, at 630. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the State Constitution. That is to say, the princi- ple underlying the Court's opinion is that one who is ac- 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 639 Scalia, J., dissenting corded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved ter- minal silliness. The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have re- course to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multi- level democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic deci- sionmaking (i. e., by the state legislature rather than local government, or by the people at large in the state constitu- tion rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature-unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of. The Court might reply that the example I have given is not a denial of equal protection only because the same "ra- tional basis" (avoidance of corruption) which renders consti- tutional the substantive discrimination against relatives (i. e., the fact that they alone cannot obtain city contracts) also automatically suffices to sustain what might be called the electoral-procedural discrimination against them (i. e., 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT 640 ROMER v. EVANS Scalia, J., dissenting the fact that they must go to the state level to get this changed). This is of course a perfectly reasonable response, and would explain why "electoral-procedural discrimination" has not hitherto been heard of: A law that is valid in its substance is automatically valid in its level of enactment. But the Court cannot afford to make this argument, for as I shall discuss next, there is no doubt of a rational basis for the substance of the prohibition at issue here. The Court's entire novel theory rests upon the proposition that there is something special-something that cannot be justified by normal "rational basis" analysis-in making a disadvantaged group (or a nonpreferred group) resort to a higher decision- making level. That proposition finds no support in law or logic. II I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment-for the prohibition of special protection for homosexuals.1 It is unsurprising that the Court avoids discussion of this ques- tion, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court's opinion: In Bowers v. Hardwick, 478 U. S. 186 (1986), we held that the Constitution does not prohibit what virtually all States had done from the founding of the Repub- lic until very recent years-making homosexual conduct a crime. That holding is unassailable, except by those who 1 The Court evidently agrees that "rational basis"-the normal test for compliance with the Equal Protection Clause-is the governing standard. The trial court rejected respondents' argument that homosexuals consti- tute a "suspect" or "quasi-suspect" class, and respondents elected not to appeal that ruling to the Supreme Court of Colorado. See 882 P. 2d 1335, 1341, n. 3 (1994). And the Court implicitly rejects the Supreme Court of Colorado's holding, Evans v. Romer, 854 P. 2d 1270, 1282 (1993), that Amendment 2 infringes upon a "fundamental right" of "independently identifiable class[es]" to "participate equally in the political process." See ante, at 625. 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 641 Scalia, J., dissenting think that the Constitution changes to suit current fashions. But in any event it is a given in the present case: Respond- ents' briefs did not urge overruling Bowers, and at oral argu- ment respondents' counsel expressly disavowed any intent to seek such overruling, Tr. of Oral Arg. 53. If it is constitu- tionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. (As the Court of Appeals for the District of Columbia Circuit has aptly put it: "If the Court [in Bowers] was unwilling to object to state laws that criminalize the behavior that de- fines the class, it is hardly open . . . to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Padula v. Webster, 822 F. 2d 97, 103 (1987).) And a fortiori it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual con- duct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual con- duct. Respondents (who, unlike the Court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the argument that a greater-includes-the-lesser ration- ale cannot justify Amendment 2's application to individuals who do not engage in homosexual acts, but are merely of homosexual "orientation." Some Courts of Appeals have concluded that, with respect to laws of this sort at least, that is a distinction without a difference. See Equality Founda- tion of Greater Cincinnati, Inc. v. Cincinnati, 54 F. 3d 261, 267 (CA6 1995) ("[F]or purposes of these proceedings, it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct"); Steffan v. Perry, 41 F. 3d 677, 689­690 (CADC 1994). The Supreme Court of Colorado itself appears to be of this view. See 882 P. 2d, at 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT 642 ROMER v. EVANS Scalia, J., dissenting 1349­1350 ("Amendment 2 targets this class of persons based on four characteristics: sexual orientation; conduct; practices, and relationships. Each characteristic provides a poten- tially different way of identifying that class of persons who are gay, lesbian, or bisexual. These four characteristics are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons") (emphasis added). But assuming that, in Amendment 2, a person of homosex- ual "orientation" is someone who does not engage in homo- sexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the con- duct. Indeed, where criminal sanctions are not involved, homosexual "orientation" is an acceptable stand-in for homo- sexual conduct. A State "does not violate the Equal Protec- tion Clause merely because the classifications made by its laws are imperfect," Dandridge v. Williams, 397 U. S. 471, 485 (1970). Just as a policy barring the hiring of methadone users as transit employees does not violate equal protection simply because some methadone users pose no threat to pas- senger safety, see New York City Transit Authority v. Beazer, 440 U. S. 568 (1979), and just as a mandatory retire- ment age of 50 for police officers does not violate equal pro- tection even though it prematurely ends the careers of many policemen over 50 who still have the capacity to do the job, see Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976) (per curiam), Amendment 2 is not constitutionally invalid simply because it could have been drawn more pre- cisely so as to withdraw special antidiscrimination protec- tions only from those of homosexual "orientation" who actu- ally engage in homosexual conduct. As Justice Kennedy wrote, when he was on the Court of Appeals, in a case involv- ing discharge of homosexuals from the Navy: "Nearly any 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 643 Scalia, J., dissenting statute which classifies people may be irrational as applied in particular cases. Discharge of the particular plaintiffs before us would be rational, under minimal scrutiny, not because their particular cases present the dangers which justify Navy policy, but instead because the general policy of discharging all homosexuals is rational." Beller v. Mid- dendorf, 632 F. 2d 788, 808­809, n. 20 (CA9 1980) (citation omitted). See also Ben-Shalom v. Marsh, 881 F. 2d 454, 464 (CA7 1989), cert. denied, 494 U. S. 1004 (1990). Moreover, even if the provision regarding homosexual "orientation" were invalid, respondents' challenge to Amend- ment 2-which is a facial challenge-must fail. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U. S. 739, 745 (1987). It would not be enough for respondents to establish (if they could) that Amendment 2 is unconstitu- tional as applied to those of homosexual "orientation"; since, under Bowers, Amendment 2 is unquestionably constitu- tional as applied to those who engage in homosexual conduct, the facial challenge cannot succeed. Some individuals of homosexual "orientation" who do not engage in homosexual acts might successfully bring an as-applied challenge to Amendment 2, but so far as the record indicates, none of the respondents is such a person. See App. 4­5 (complaint describing each of the individual respondents as either "a gay man" or "a lesbian").2 2 The Supreme Court of Colorado stated: "We hold that the portions of Amendment 2 that would remain if only the provision concerning sexual orientation were stricken are not autonomous and thus, not severable," 882 P. 2d, at 1349. That statement was premised, however, on the propo- sition that "[the] four characteristics [described in the Amendment-sex- ual orientation, conduct, practices, and relationships] are not truly sever- able from one another because each provides nothing more than a different way of identifying the same class of persons." Id., at 1349­1350 (empha- sis added). As I have discussed above, if that premise is true-if the 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT 644 ROMER v. EVANS Scalia, J., dissenting III The foregoing suffices to establish what the Court's failure to cite any case remotely in point would lead one to suspect: No principle set forth in the Constitution, nor even any imag- ined by this Court in the past 200 years, prohibits what Colo- rado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohib- ited, but eminently reasonable, with close, congressionally approved precedent in earlier constitutional practice. First, as to its eminent reasonableness. The Court's opin- ion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexual- ity, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible-mur- der, for example, or polygamy, or cruelty to animals-and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disap- proval of homosexual conduct, the same sort of moral disap- proval that produced the centuries-old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons-for example, because they are senior citi- zens or members of racial minorities. But it prohibits giv- ing them favored status because of their homosexual con- duct-that is, it prohibits favored status for homosexuality. But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceiv- entire class affected by the Amendment takes part in homosexual conduct, practices, and relationships-Bowers alone suffices to answer all consti- tutional objections. Separate consideration of persons of homosexual "orientation" is necessary only if one believes (as the Supreme Court of Colorado did not) that that is a distinct class. 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 645 Scalia, J., dissenting able. The Court's portrayal of Coloradans as a society fallen victim to pointless, hate-filled "gay-bashing" is so false as to be comical. Colorado not only is one of the 25 States that have repealed their antisodomy laws, but was among the first to do so. See 1971 Colo. Sess. Laws, ch. 121, § 1. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexual- ity is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens. Cf. Brief for Lambda Legal Defense and Education Fund, Inc., et al. as Amici Curiae in Bowers v. Hardwick, O. T. 1985, No. 85­140, p. 25, n. 21 (antisodomy statutes are "unenforceable by any but the most offensive snooping and wasteful allocation of law enforcement resources"); Kadish, The Crisis of Overcriminalization, 374 The Annals of the American Academy of Political and Social Science 157, 161 (1967) ("To obtain evidence [in sodomy cases], police are obliged to resort to behavior which tends to degrade and demean both themselves personally and law enforcement as an institution"). There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teach- ing that homosexuality is an optional and fully acceptable "alternative life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexu- ality) is that, because those who engage in homosexual con- duct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and, of course, care about homosexual-rights issues much 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT 646 ROMER v. EVANS Scalia, J., dissenting more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e. g., Ja- cobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969­1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rheto- ric of disapprobation, to rhetoric of tolerance, and finally to affirmation"). By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals' quest for social endorse- ment was not limited to newspaper accounts of happenings in places such as New York, Los Angeles, San Francisco, and Key West. Three Colorado cities-Aspen, Boulder, and Denver-had enacted ordinances that listed "sexual orienta- tion" as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. See Aspen Municipal Code § 13­98 (1977); Boulder Rev. Municipal Code §§ 12­1­1 to 12­1­11 (1987); Denver Rev. Municipal Code, Art. IV, §§ 28­91 to 28­116 (1991). The phenomenon had even appeared statewide: The Governor of Colorado had signed an executive order pro- nouncing that "in the State of Colorado we recognize the diversity in our pluralistic society and strive to bring an end to discrimination in any form," and directing state agency- heads to "ensure non-discrimination" in hiring and promotion based on, among other things, "sexual orientation." Execu- tive Order No. D0035 (Dec. 10, 1990). I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as is the rest of society. But they are subject to being countered by lawful, democratic counter- measures as well. 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 647 Scalia, J., dissenting That is where Amendment 2 came in. It sought to coun- ter both the geographic concentration and the dispropor- tionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the elec- tion a single-issue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexu- ality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before. "[Amendment 2] identifies persons by a single trait and then denies them protection across the board. The re- sulting disqualification of a class of persons from the right to seek specific protection from the law is unprece- dented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive . . . . "It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." Ante, at 633. As I have noted above, this is proved false every time a state law prohibiting or disfavoring certain conduct is passed, be- cause such a law prevents the adversely affected group- whether drug addicts, or smokers, or gun owners, or motor- cyclists-from changing the policy thus established in "each of [the] parts" of the State. What the Court says is even demonstrably false at the constitutional level. The Eight- eenth Amendment to the Federal Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition locally or through state legislation, but even of the power to alter it through state constitutional amendment or federal legislation. The 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT 648 ROMER v. EVANS Scalia, J., dissenting Establishment Clause of the First Amendment prevents theocrats from having their way by converting their fellow citizens at the local, state, or federal statutory level; as does the Republican Form of Government Clause prevent monarchists. But there is a much closer analogy, one that involves pre- cisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minor- ity to undermine it. The Constitutions of the States of Ari- zona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohib- ited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, § 4; N. M. Const., Art. XXI, § 1; Okla. Const., Art. I, § 2; Utah Const., Art. III, § 1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local- option, basis-unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals. The United States Congress, by the way, required the in- clusion of these antipolygamy provisions in the Constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood. See Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558; Okla- homa Enabling Act, 34 Stat. 269; Utah Enabling Act, 28 Stat. 108. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the antipolygamy provisions be "irrevocable without the consent of the United States and the people of said State"-so that not only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole were not; 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 649 Scalia, J., dissenting polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Idaho into the Union, found its Constitution to be "republican in form and . . . in conformity with the Constitution of the United States." Act of Admission of Idaho, 26 Stat. 215 (em- phasis added). Thus, this "singling out" of the sexual prac- tices of a single group for statewide, democratic vote-so utterly alien to our constitutional system, the Court would have us believe-has not only happened, but has received the explicit approval of the United States Congress. I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, de- priving polygamists of the ability even to achieve a constitu- tional amendment, by depriving them of the power to vote. In Davis v. Beason, 133 U. S. 333 (1890), Justice Field wrote for a unanimous Court: "In our judgment, § 501 of the Revised Statutes of Idaho Territory, which provides that `no person . . . who is a bigamist or polygamist or who teaches, advises, coun- sels, or encourages any person or persons to become big- amists or polygamists, or to commit any other crime de- fined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, coun- sels, or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law . . . is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this Territory,' is not open to any constitutional or legal objection." Id., at 346­347 (em- phasis added). To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of po- 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT 650 ROMER v. EVANS Scalia, J., dissenting lygamy, it has, of course, been overruled by later cases. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U. S. 24, 53 (1974). Beason rejected the argument that "such discrimi- nation is a denial of the equal protection of the laws." Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal protection lodestars-Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 623, and Justice Bradley, who had earlier declared that "class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amend- ment," Civil Rights Cases, 109 U. S. 3, 24 (1883), quoted ante, at 635.3 3 The Court labors mightily to get around Beason, see ante, at 634, but cannot escape the central fact that this Court found the statute at issue- which went much further than Amendment 2, denying polygamists not merely special treatment but the right to vote-"not open to any constitu- tional or legal objection," rejecting the appellant's argument (much like the argument of respondents today) that the statute impermissibly "sin- gle[d] him out," Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. The Court adopts my conclusions that (a) insofar as Beason permits the imposition of adverse consequences based upon mere advo- cacy, it has been overruled by subsequent cases, and (b) insofar as Beason holds that convicted felons may be denied the right to vote, it remains good law. To these conclusions, it adds something new: the claim that "[t]o the extent [Beason] held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful out- come." Ante, at 634. But if that is so, it is only because we have de- clared the right to vote to be a "fundamental political right," see, e. g., Dunn v. Blumstein, 405 U. S. 330, 336 (1972), deprivation of which triggers strict scrutiny. Amendment 2, of course, does not deny the fundamental right to vote, and the Court rejects the Colorado court's view that there exists a fundamental right to participate in the political process. Strict scrutiny is thus not in play here. See ante, at 631. Finally, the Court's 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 651 Scalia, J., dissenting This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimina- tion. . . . See, e. g., . . . Davis v. Beason, 133 U. S. 333 (1890)." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 535 (1993). It remains to be explained how § 501 of the Idaho Revised Statutes was not an "impermissible target- ing" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not? IV I strongly suspect that the answer to the last question is yes, which leads me to the last point I wish to make: The Court today, announcing that Amendment 2 "defies . . . con- ventional [constitutional] inquiry," ante, at 632, and "con- founds [the] normal process of judicial review," ante, at 633, employs a constitutional theory heretofore unknown to frus- trate Colorado's reasonable effort to preserve traditional American moral values. The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U. S. 15 (1885), rejecting a constitutional challenge to a United States stat- ute that denied the franchise in federal territories to those who engaged in polygamous cohabitation: "[C]ertainly no legislation can be supposed more whole- some and necessary in the founding of a free, self- suggestion that § 501 of the Revised Statutes of Idaho, and Amendment 2, deny rights on account of "status" (rather than conduct) opens up a broader debate involving the significance of Bowers to this case, a debate which the Court is otherwise unwilling to join, see supra, at 640­643. 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT 652 ROMER v. EVANS Scalia, J., dissenting governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Id., at 45. I would not myself indulge in such official praise for hetero- sexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than " `a bare . . . desire to harm a politically unpopular group,' " ante, at 634, quoting Depart- ment of Agriculture v. Moreno, 413 U. S. 528, 534 (1973), is nothing short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert. C­18.) When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins-and more specifically with the Templars, reflecting the views and val- ues of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republi- can; because he is an adulterer; because he went to the wrong 517US2$53K 02-07-99 18:56:56 PAGES OPINPGT Cite as: 517 U. S. 620 (1996) 653 Scalia, J., dissenting prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the appli- cant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assur- ance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. § 6­4(b); Executive Committee Regulations of the Associa- tion of American Law Schools § 6.19, in 1995 Handbook, As- sociation of American Law Schools. This law-school view of what "prejudices" must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protec- tions of federal civil rights laws, see, e. g., Employment Non- Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans with Disabilities Act of 1990, see 42 U. S. C. § 12211(a) (1988 ed., Supp. V). * * * Today's opinion has no foundation in American constitu- tional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent. 517us2$54Z 02-05-99 11:39:02 PAGES OPINPGT 654 OCTOBER TERM, 1995 Syllabus HENDERSON v. UNITED STATES certiorari to the united states court of appeals for the fifth circuit No. 95­232. Argued March 19, 1996-Decided May 20, 1996 Petitioner Henderson filed this suit under the Suits in Admiralty Act for injuries he received as a seaman aboard a vessel owned by the United States. He accomplished service on the United States in the manner and within the time allowed by Federal Rule of Civil Procedure 4, which sets an extendable 120-day period for service. Service on the Attorney General occurred 47 days after the complaint was filed, but service on the United States Attorney, though timely under Rule 4's extendable deadline, took 148 days. The United States moved to dismiss the action, arguing that although the time and manner of service satisfied Rule 4's requirements, Henderson had failed to serve process "forth- with" as required by § 2 of the Suits in Admiralty Act. The District Court dismissed Henderson's complaint for lack of subject-matter juris- diction, based on Circuit precedent holding that § 2's service "forthwith" requirement conditions the Government's waiver of sovereign immunity and is therefore a jurisdictional prerequisite. The Court of Appeals affirmed. Held: The Suits in Admiralty Act's "forthwith" instruction for service of process has been superseded by Rule 4. Pp. 661­672. (a) Rule 4's regime conflicts irreconcilably with § 2's service "forth- with" instruction. The Federal Rules convey a clear message that com- plaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow, but § 2's "forthwith" instruction is indicative of a far shorter time. The Government urges that the con- flict dissolves if one reads Rule 4 as establishing not an affirmative right to serve a complaint within 120 days, but an outer boundary for timely service. Reading Rule 4 in its historical context, however, leads to the conclusion that the 120-day provision operates as an irreducible allow- ance. Pp. 661­663. (b) In the Rules Enabling Act, Congress ordered that, in matters of "practice and procedure," 28 U. S. C. § 2072(a), the Federal Rules shall govern, and "[a]ll laws in conflict with such rules shall be of no further force or effect," § 2072(b). Correspondingly, Federal Rule of Civil Pro- cedure 82 provides that the Rules cannot be construed to extend or limit federal jurisdiction. Section 2 of the Suits in Admiralty Act contains a 517us2$54Z 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 655 Syllabus broad waiver of sovereign immunity in its first sentence, but this does not mean, as the United States asserts, that § 2 in its entirety is "juris- dictional." Several of § 2's provisions, notably its generous venue and transfer provisions, as well as its service provision, are not sensibly typed "substantive" or "jurisdictional." Instead, they have a distinctly facilitative, "procedural" cast, dealing with case processing, not substan- tive rights or consent to suit. The service "forthwith" prescription is not made "substantive" or "jurisdictional" by its inclusion-along with broad venue choices-in § 2. The prescription is best characterized as a rule of procedure, of the kind Rule 4 supersedes. A plaintiff like Henderson, on commencement of an action under the Suits in Admiralty Act, must resort to Rule 4 for instructions on service of process. In that Rule, one finds instructions governing, inter alia, form and issu- ance of the summons, service of the summons together with the com- plaint, who may serve process, and proof of service. The Rule also describes how service shall or may be effected on various categories of defendants. It is uncontested that all these prescriptions apply in Suits in Admiralty Act cases, just as they apply in other federal cases. There is no reason why the prescription governing time for service is not, as is the whole of Rule 4, a nonjurisdictional rule governing "practice and procedure" in federal cases, see 28 U. S. C. § 2072(a), consistent with the Rules Enabling Act and Rule 82, and rendering provisions like the Suits in Admiralty Act's service "forthwith" requirement "of no further force or effect," § 2072(b). Pp. 663­672. 51 F. 3d 574, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Scalia, J., filed a concurring opinion, in which Kennedy, J., joined, post, p. 672. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and O'Connor, J., joined, post, p. 673. Richard A. Sheehy argued the cause for petitioner. With him on the briefs were Kenneth R. Breitbeil and Lauren L. Beck. Malcolm L. Stewart argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor Gen- eral Bender, Michael E. Robinson, and Timothy R. Lord. 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT 656 HENDERSON v. UNITED STATES Opinion of the Court Justice Ginsburg delivered the opinion of the Court. This case concerns the period allowed for service of proc- ess in a civil action commenced by a seaman injured aboard a vessel owned by the United States. Recovery in such cases is governed by the Suits in Admiralty Act, 46 U. S. C. App. § 741 et seq., which broadly waives the Government's sovereign immunity. See § 742 (money judgments); § 743 (costs and interest). Rule 4 of the Federal Rules of Civil Procedure allows 120 days to effect service of the summons and timely filed complaint, a period extendable by the court. The Suits in Admiralty Act, however, instructs that service shall be made "forthwith." § 742. The question presented is whether the Act's "forthwith" instruction for service of process has been superseded by the Federal Rule. In the Rules Enabling Act, 28 U. S. C. § 2071 et seq., Con- gress ordered that, in matters of "practice and procedure," § 2072(a), the Federal Rules shall govern, and "[a]ll laws in conflict with such rules shall be of no further force or effect," § 2072(b). We hold that, in actions arising under federal law, commenced in compliance with the governing statute of limi- tations, the manner and timing of serving process are gener- ally nonjurisdictional matters of "procedure" controlled by the Federal Rules. I On August 27, 1991, petitioner Lloyd Henderson, a mer- chant mariner, was injured while working aboard a vessel owned and operated by the United States. On April 8, 1993, after exhausting administrative remedies, Henderson filed a seaman's personal injury action against the United States, pursuant to the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U. S. C. App. § 741 et seq.1 Under that Act, 1 Henderson's complaint also invoked the Public Vessels Act, 43 Stat. 1112, as amended, 46 U. S. C. App. § 781 et seq. The Government main- tains, however, that Henderson's suit falls under the exclusive governance of the Suits in Admiralty Act, because his claim arose from employment aboard a Maritime Administration vessel. See Brief for United States 8, 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 657 Opinion of the Court suits of the kind Henderson commenced "may be brought . . . within two years after the cause of action arises." § 745. Henderson brought his action well within that time period. He commenced suit, as Federal Rule of Civil Procedure 3 instructs, simply "by filing a complaint with the court." 2 Having timely filed his complaint, Henderson attempted to follow the Federal Rules on service. It is undisputed that the following Rules, and nothing in the Suits in Admiralty Act, furnished the immediately relevant instructions. Fed- eral Rule of Civil Procedure 4(a) (1988) provided: "Upon the filing of the complaint the clerk shall forthwith issue a sum- mons and deliver the summons to the plaintiff or the plain- tiff's attorney, who shall be responsible for prompt serv- ice of the summons and a copy of the complaint." Rule 4(b) provided: "The summons shall be signed by the clerk, [and] be under the seal of the court." Rule 4(d) stated: "The summons and complaint shall be served together." 3 A series of slips occurred in obtaining the summons required by Rule 4. Henderson's counsel requested the ap- propriate summons forms and file-stamped copies of the complaint on April 8, 1993, the day he filed Henderson's n. 9 (citing 57 Stat. 45, as amended, 50 U. S. C. App. § 1291(a) (1988 ed.)). Henderson apparently does not contest this assertion. In any case, claims under both Acts proceed the same way. See 46 U. S. C. App. § 782 (suits under the Public Vessels Act "shall be subject to and proceed in accord- ance with the provisions" of the Suits in Admiralty Act). 2 In a suit on a right created by federal law, filing a complaint suffices to satisfy the statute of limitations. See West v. Conrail, 481 U. S. 35, 39 (1987). In a federal-court suit on a state-created right, however, a plain- tiff must serve process before the statute of limitations has run, if state law so requires for a similar state-court suit. See Walker v. Armco Steel Corp., 446 U. S. 740, 752­753 (1980) (reaffirming Ragan v. Merchants Transfer & Warehouse Co., 337 U. S. 530 (1949)). But cf. Hanna v. Plumer, 380 U. S. 460 (1965) (method of service, as distinguished from time period for commencement of civil action, is governed by Federal Rules in all actions, including suits based on state-created rights). 3 The substance of these provisions is retained in current Rules 4(a), (b), and (c)(1). 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT 658 HENDERSON v. UNITED STATES Opinion of the Court complaint. But the court clerk did not respond immediately. Counsel eventually obtained the forms on April 21, 1993, and completed and returned them to the clerk. On May 4, coun- sel received the summons mailed to him from the clerk's of- fice, and on May 19, counsel sent the summons and complaint, by certified mail, to the Attorney General,4 who received them on May 25. Service on the local United States Attorney took longer. On May 25, Henderson's counsel forwarded the summons and complaint, as received from the clerk, to a "constable" with a request to effect service. On June 1, the constable's office returned the documents, informing Henderson's counsel that the summons was not in proper form, because it lacked the court's seal. Counsel thereupon wrote to the court clerk requesting new summons forms with the appropriate court seal. Counsel repeated this request on August 19; ulti- mately, on August 25, Henderson's counsel received the prop- erly sealed summons. Once again, Henderson's counsel requested the constable's service and, on August 30, moved for an extension of time to serve the United States Attorney.5 The court granted the motion, extending the time for service until September 15. The United States Attorney received personal service of the summons and complaint, in proper form, on September 3, 1993. 4 Federal Rule of Civil Procedure 4(d)(4), effective at that time, in- structed that "a copy of the summons and of the complaint [be sent] by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia." The same instruction currently appears in Rule 4(i)(1)(B). 5 Federal Rule of Civil Procedure 4(j), then in force, provided for service of the summons and complaint within 120 days after the filing of the com- plaint, a time limit subject to extension for good cause. The substance of this provision is retained in current Rule 4(m), which permits a district court to enlarge the time for service "even if there is no good cause shown." Advisory Committee's Notes on 1993 Amendments to Fed. Rule Civ. Proc. 4, 28 U. S. C. App., p. 654. 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 659 Opinion of the Court Thus, the Attorney General received the complaint 47 days after Henderson filed suit, and the United States Attorney was personally served 148 days after Henderson commenced the action by filing his complaint with the court. On No- vember 17, 1993, the United States moved to dismiss the action. The grounds for, and disposition of, that motion led to Henderson's petition for certiorari. The United States has never maintained that it lacked no- tice of Henderson's complaint within the 2-year limitation period prescribed for Suits in Admiralty Act claims. See 46 U. S. C. App. § 745; Tr. of Oral Arg. 38­39 (counsel for United States acknowledged that service on Attorney General gave Government actual notice three months before 2-year limita- tion period ended).6 Nor has the Government asserted any prejudice to the presentation of its defense stemming from the delayed service of the summons and complaint. And the manner and timing of service, it appears beyond debate, sat- isfied the requirements of Federal Rule of Civil Procedure 4 (titled "Summons" and detailing prescriptions on service of process). In support of its motion to dismiss, the United States relied exclusively on § 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, which provides in part: "The libelant [plaintiff] shall forthwith serve a copy of his libel [complaint] on the United States attorney for [the] district [where suit is brought] and mail a copy thereof by registered mail to the Attorney General of the United States." This provision has remained unchanged since its enactment in 1920, 18 years before the Federal Rules of Civil Procedure became effective, and 46 years before admiralty cases were brought within the realm of the Civil Rules. The Govern- ment argued that Henderson's failure to serve process 6 In any event, the filing of the complaint within the limitation period rendered the action timely. See supra, at 657, n. 2. 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT 660 HENDERSON v. UNITED STATES Opinion of the Court "forthwith," as required by § 742, deprived the District Court of subject-matter jurisdiction because § 742 describes the conditions of the United States' waiver of sovereign immunity. The District Court initially denied the Government's mo- tion, but reconsidered the matter based on an intervening Fifth Circuit decision, United States v. Holmberg, 19 F. 3d 1062, cert. denied, 513 U. S. 986 (1994). The court in Holm- berg, agreeing with the United States, held that the § 742 service "forthwith" requirement "is a condition of the Gov- ernment's waiver of sovereign immunity and, thus, a juris- dictional prerequisite." 19 F. 3d, at 1064. In so ruling, the Holmberg court rejected the argument that service of proc- ess under the Suits in Admiralty Act, as in the generality of cases arising and timely filed under federal law, is a matter of procedure, now governed by the Federal Rules of Civil Procedure. Bound by Holmberg, the District Court dismissed Hender- son's complaint for lack of subject-matter jurisdiction, and the Court of Appeals, adhering to Holmberg, affirmed. 51 F. 3d 574 (CA5 1995).7 We granted certiorari to resolve dis- agreement among lower courts on the question whether Fed- eral Rule 4, which authorizes an extendable 120-day period for service of process, supersedes the Suits in Admiralty Act provision that service on the United States be made "forthwith." 8 7 The Holmberg court "agree[d] that there has been no uniform defini- tion of forthwith," as that term is used in § 742, 19 F. 3d, at 1065, and the Court of Appeals in the instant case took no position on whether service on the Attorney General 47 days after commencement of the action could count as "forthwith." 51 F. 3d, at 577. The court held, however, that the "forthwith" requirement applies to service on both officers-the United States Attorney and the Attorney General-and stated that "completing service in 148 days [through service on the United States Attorney] is not forthwith." Id., at 576. 8 Compare, e. g., Libby v. United States, 840 F. 2d 818, 819­821 (CA11 1988); Kenyon v. United States, 676 F. 2d 1229, 1231 (CA9 1981); Battaglia 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 661 Opinion of the Court II The United States first suggests that Rule 4's extendable 120-day time prescription, and the Suits in Admiralty Act's service "forthwith" instruction, can and should be read har- moniously. The Rule 4 time limit for service, Rule 4(j) at the time Henderson's action commenced,9 provided: "(j) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a de- fendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant . . . ." Fed. Rule Civ. Proc. 4(j) (1988). Section 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, prescribes service "forthwith," see supra, at 659, a word not precisely defined in the Act or in case law, but indicative of a time far shorter than 120 days. The apparent conflict dissolves, the Government urges, if one reads Rule 4 as es- tablishing not "an affirmative right to serve [a] complaint" within 120 days, but only an outer boundary for timely serv- ice. See Brief for United States 14, 18, 26; Tr. of Oral Arg. 28, 30. We reject the Government's view of the time the Federal Rules authorize for service. Reading Rule 4 in its histor- ical context, we conclude that the 120-day provision operates not as an outer limit subject to reduction, but as an irre- ducible allowance. Prior to 1983, Rule 4 contained no time limit for service. Until the changes installed that year, v. United States, 303 F. 2d 683, 685­686 (CA2), cert. dism'd, 371 U. S. 907 (1962), with Jones & Laughlin Steel, Inc. v. Mon River Towing, Inc., 772 F. 2d 62, 66 (CA3 1985). See also Kenyon, 676 F. 2d, at 1231­1232 (Boochever, J., concurring); Battaglia, 303 F. 2d, at 686­687 (Friendly, J., concurring). 9 Currently, Rule 4(m) states the time limit for service. See supra, at 658, n. 5. 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT 662 HENDERSON v. UNITED STATES Opinion of the Court United States marshals attended to service. The relevant Rule 4 provisions read: "(a) Summons: issuance. Upon the filing of the com- plaint the clerk shall forthwith issue a summons and de- liver it for service to the marshal or to any other person authorized by Rule 4(c) to serve it. . . . . . . . . "(c) By whom served. Service of process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose . . . ." Fed. Rule Civ. Proc. 4(a), (c) (1980). Marshals were expected to effect service expeditiously, and Rule 41(b), providing for dismissal "[f]or failure of the plain- tiff to prosecute," could be invoked as a check against unrea- sonable delay. See 9 C. Wright & A. Miller, Federal Prac- tice and Procedure § 2370, pp. 374­376 (2d ed. 1995); 2 J. Moore, Moore's Federal Practice ¶ 4.18, p. 436 (2d ed. 1995). Rule 4 changes made operative in 1983 completed a shift in responsibility for service from the United States marshals to the plaintiff. See Mullenix, Hope Over Experience: Man- datory Informal Discovery and the Politics of Rulemaking, 69 N. C. L. Rev. 795, 845 (1991). With marshals no longer available as routine process servers, the Judicial Conference considered a time control necessary; the Conference pro- posed, and this Court approved, 120 days from the filing of the complaint as the appropriate limit. Congress relaxed the rule change by authorizing an extension of the 120-day period if the party responsible for service showed "good cause." See supra, at 661; 128 Cong. Rec. 30931­30932 (1982), reprinted in 28 U. S. C. App., p. 647. Most recently, in 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period "even if there is no good cause shown." See Advisory Com- mittee's Notes on Fed. Rule Civ. Proc. 4, 28 U. S. C. App., 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 663 Opinion of the Court p. 654.10 And tellingly, the text of Rule 4 sets out, as "[a] specific instance of good cause," ibid., allowance of "a reason- able time" to "cur[e] the failure to serve multiple officers . . . of the United States if the plaintiff has effected service on either the United States attorney or the Attorney General" within the prescribed 120 days. Fed. Rule Civ. Proc. 4(i)(3). The Federal Rules thus convey a clear message: Com- plaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow. Fur- thermore, the United States acknowledges that, § 2 of the Suits in Admiralty Act aside, Rule 4's extendable 120-day time prescription applies to the full range of civil litigation, including cases brought against the United States under the Federal Tort Claims Act, 28 U. S. C. § 2675, and the Tucker Act, ch. 359, 24 Stat. 505 (1887) (current version 28 U. S. C. §§ 1346, 1491 and other scattered sections of 28 U. S. C.). See Tr. of Oral Arg. 33. We are therefore satisfied that Rule 4's regime conflicts irreconcilably with Suits in Admiralty Act § 2's service "forthwith" instruction, and we turn to the dispositive question: Does the Rule supersede the incon- sistent statutory direction? III The Rules Enabling Act, 28 U. S. C. § 2071 et seq., author- izes the Supreme Court "to prescribe general rules of prac- tice and procedure . . . for cases in the United States district courts . . . and courts of appeals," § 2072(a), and directs: 10 Rule 4(m), captioned "Time Limit for Service," currently provides: "If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. . . ." (Emphasis added.) 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT 664 HENDERSON v. UNITED STATES Opinion of the Court "Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect." § 2072(b). Correspondingly, and in confirmation of the understanding and practice under the former Federal Equity Rules, Federal Rule of Civil Procedure 82 provides: "[The Federal Rules of Civil Procedure] shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein." See 1937 Advisory Committee's Notes on Fed. Rule Civ. Proc. 82, 28 U. S. C. App., p. 821 (Rule 82 confirms that the Rules' broad allowance of claim joinder "does not extend federal jurisdiction."); see also 12 Wright & Miller, supra, § 3141, at 210­214. According to the United States, Rule 4 cannot supersede § 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, for the latter is "jurisdictional" and affects "substantive rights" by setting the terms on which the United States waives its sovereign immunity. Henderson, in contrast, characterizes the Suits in Admiralty Act's service "forthwith" instruction as a nonjurisdictional processing rule. Service "forthwith," he urges, forms no part of the immunity waiver or § 745's statute of limitations, but is simply a direction for the con- duct of litigation once the case is timely launched in court- a characteristically "how to" direction in conflict with, and therefore superseded by, Rule 4. Before examining the text of § 742 to determine the char- acter of the service "forthwith" provision, we note that the conflict with Rule 4 is of relatively recent vintage. The Suits in Admiralty Act, which allows in personam suits against the United States for maritime torts, was enacted in 1920, 18 years before the advent of the Federal Rules. Furthermore, admiralty cases were processed, from 1845 until 1966, under discrete Admiralty Rules. Even after 1966, the year admiralty cases were brought under the gov- ernance of the Federal Rules of Civil Procedure, Rule 4 and 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 665 Opinion of the Court the Suits in Admiralty Act service "forthwith" provision could coexist. Rule 4, as just recounted, originally con- tained no time prescription, only the direction that, "[u]pon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service," generally to a United States marshal. See supra, at 662. It was only in 1983, when plaintiffs were made responsible for service with- out the aid of the marshal, that the 120-day provision came into force, a provision that rendered Rule 4's time frame irreconcilable with § 742's service "forthwith" instruction. Section 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, captioned "Libel in personam," contains a broad waiver of sovereign immunity in its first sentence: "In cases where if [a vessel owned or operated by the United States] were privately owned or operated . . . a proceeding in admiralty could be maintained, any appro- priate nonjury proceeding in personam may be brought against the United States . . . ." Section 3 of the Act, 46 U. S. C. App. § 743, although cap- tioned "Procedure in cases of libel in personam," completes the immunity waiver by providing for costs and interest on money judgments against the United States.11 See United States v. Bodcaw Co., 440 U. S. 202, 203­204, n. 3 (1979); Fed. Rule Civ. Proc. 54(d)(1) (absent an authorizing statute, United States is not liable for costs); Library of Congress v. Shaw, 478 U. S. 310, 314 (1986) (absent an authorizing stat- ute, United States is not liable for interest). The United States asserts that not just the first sentence of § 742, but that section in its entirety is "jurisdictional," spelling out the terms and conditions of the Government's 11 Specifically, the second sentence of § 743 reads: "A decree against the United States . . . may include costs of suit, and when the decree is for a money judgment, interest at the rate of 4 per centum per annum until satisfied, or at any higher rate which shall be stipulated in any contract upon which such decree shall be based." 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT 666 HENDERSON v. UNITED STATES Opinion of the Court waiver of sovereign immunity, in contrast to the next section of the Suits in Admiralty Act, 46 U. S. C. App. § 743, which governs "procedure," specifying in its first sentence: "Such suits shall proceed and shall be heard and determined ac- cording to the principles of law and to the rules of practice obtaining in like cases between private parties." See Brief for United States 26­27; see also Holmberg, 19 F. 3d, at 1064; Libby v. United States, 840 F. 2d 818, 820 (CA11 1988) ("The fact that the waiver of sovereign immunity is declared in section 742, while the procedures governing admiralty suits against the United States are specified in section 743, indi- cates that the requirements contained in section 742 are more than procedural."). The dissent adopts this argument hook, line, and sinker. See post, at 674­675 (finding key to text and structure of the Suits in Admiralty Act in Congress' placement of service requirement in § 2 (46 U. S. C. App. § 742) rather than § 3 (46 U. S. C. App. § 743)). But just as § 743 is not "purely procedural," for it waives the Sovereign's immunity as to costs and interest, so § 742 is not perva- sively "jurisdictional." The sentence immediately following § 742's broad waiver, and immediately preceding the sentence on service, reads: "Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel . . . charged with liability is found." This notably generous-to-plaintiffs provision will be rec- ognized instantly as one describing venue choices, not subject-matter jurisdiction. Cf. 28 U. S. C. § 1391 ("Venue generally"). Section 742's final sentence provides: "Upon application of either party the cause may, in the discretion of the court, be transferred to any other district court of the United States." 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 667 Opinion of the Court Cf. 28 U. S. C. § 1404 (change of venue to more convenient forum); § 1406 (authorizing transfer, rather than dismissal, when venue is improperly laid). Congress simultaneously added to the Suits in Admiralty Act, the Public Vessels Act, and the Federal Tort Claims Act the transfer provision just set out so that "jurisdictional" dismissals could be avoided when plaintiffs commenced suit under the wrong statute. See S. Rep. No. 1894, 86th Cong., 2d Sess., pp. 2­5 (1960); cf. 28 U. S. C. § 1631 (authorizing transfer, inter alia, when re- view of agency action is sought in the wrong federal court). In short, far from reining in "jurisdiction," § 742's venue and transfer provisions afford plaintiffs multiple forum choices and spare plaintiffs from dismissal for suing in the wrong place or under the wrong Act.12 Section 742's critical sentence on service reads: "The libelant [plaintiff] shall forthwith serve a copy of his libel [complaint] on the United States attorney for such district and mail a copy thereof by registered mail to the Attorney General . . . ." Rule 4, as observed at oral argument, see Tr. of Oral Arg. 27­28, provides for dispatch of the summons and complaint to the Attorney General "by registered or certified mail." See supra, at 658, and n. 4. The Government's sovereign- immunity waiver, counsel for the United States agreed, did not depend on registered mail service, the sole form of mail- ing § 742 authorizes; "in this day and age," counsel said, "cer- tified mail would be acceptable." Tr. of Oral Arg. 28­29. But see post, at 678, n. 4 ("jurisdiction in [a Suits in Admi- ralty Act] suit may turn upon the plaintiff's use of registered mail"). It thus appears that several of § 742's provisions are not sensibly typed "substantive" or "jurisdictional." In- stead, they have a distinctly facilitative, "procedural" cast. 12 While striving for fidelity to what Congress wrote, see post, at 674, 679, the dissent inexplicably writes off many of § 742's words as "largely beside the point," post, at 674. 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT 668 HENDERSON v. UNITED STATES Opinion of the Court They deal with case processing, not substantive rights or consent to suit.13 If the service "forthwith" prescription is not made "sub- stantive" or "jurisdictional" by its inclusion-along with broad venue choices-in § 742, is it a rule of procedure super- seded by Rule 4? Before we address that dispositive ques- tion, we note a preliminary issue. Rule 4(j), which con- tained the 120-day prescription at the time Henderson filed suit, was not simply prescribed by this Court pursuant to the Rules Enabling Act. See 28 U. S. C. § 2074 (rules trans- mitted by Court to Congress "not later than May 1" become effective "no earlier than December 1" of the same year un- less Congress otherwise provides). Instead, the Rule was enacted into law by Congress as part of the Federal Rules of Civil Procedure Amendments Act of 1982, § 2, 96 Stat. 2527. See supra, at 662. As the United States acknowl- edges, however, a Rule made law by Congress supersedes conflicting laws no less than a Rule this Court prescribes. See Brief for United States 16, n. 14 ("We agree with peti- tioner . . . that Section 2072(b) provides the best evidence of 13 Even before admiralty proceedings were placed under the governance of the Federal Rules, Judge Henry Friendly trenchantly observed: "I cannot believe Congress meant [to render `jurisdictional' every failure by a libelant to comply with a procedural step outlined in the Suits in Admiralty Act]; I should have supposed that, once Congress gave the basic consent to sue the United States, as it did in the first sentence of [§ 742], it was content to have the courts decide the effect of various procedural lapses in the same manner as `if such vessel were privately owned or operated.' " Battaglia v. United States, 303 F. 2d, at 686 (concurring opinion). Circuit precedent was otherwise, however, and therefore Judge Friendly reluctantly concurred in the "Draconian conclusion" that a 4- month delay in mailing the pleadings to the Attorney General called for dismissal of the case, despite "forthwith" service on the United States Attorney. Cf. Fed. Rule Civ. Proc. 4(i)(3) ("court shall allow a reasonable time" to "cur[e] the failure to serve multiple officers . . . of the United States if the plaintiff has effected service on either the United States attorney or the Attorney General"). 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 669 Opinion of the Court congressional intent regarding the proper construction of Rule 4(j) and its interaction with other laws."). Returning to the dispositive question, we need not linger over the answer. What we have so far said, and the further elaboration below, lead securely to this response: Rule 4 gov- erns summons and service in this case in whole and not in part. A plaintiff like Henderson, on commencement of an action under the Suits in Admiralty Act, must immediately resort to Rule 4 for instructions on service of process. See supra, at 657, and nn. 3, 4. In that Rule, one finds instructions gov- erning, inter alia, form and issuance of the summons, service of the summons together with the complaint, who may serve process, and proof of service.14 The Rule also describes how service shall or may be effected on various categories of de- fendants,15 including, in detail, "the United States, and Its Agencies, Corporations, or Officers." 16 All these prescrip- tions, it is uncontested, apply in Suits in Admiralty Act cases, just as they apply in other federal cases. We see no reason why the prescription governing time for service 17 is not, as 14 Currently, Fed. Rule Civ. Proc. 4(a), (b), (c), and (l). 15 Currently, Fed. Rule Civ. Proc. 4(e)­(j). 16 Currently, Fed. Rule Civ. Proc. 4(i); formerly, Fed. Rule Civ. Proc. 4(d)(4). See supra, at 658, n. 4; Kenyon, 676 F. 2d, at 1232 (Boochever, J., concurring) (noting that § 2 of the Suits in Admiralty Act, 46 U. S. C. App. § 742, specifies mailing "by registered mail to the Attorney General of the United States," and commenting that the Federal Rule, then Rule 4(d)(4), supersedes, allowing "registered or certified mail"). The current Rule- 4(i)-further facilitates service when the United States is a party by per- mitting the United States Attorney to designate clerical employees to re- ceive process and allowing service on the United States Attorney by mail. See Fed. Rule Civ. Proc. 4(i)(A). 17 The Government acknowledges the aim of the rulemakers, from the start, to provide " `a uniform and comprehensive method of service for all actions against the United States,' " Brief for United States 19­20, n. 18 (quoting Advisory Committee's Notes on 1937 Adoption of Fed. Rule Civ. Proc. 4, 28 U. S. C. App., p. 641), but tenders a distinction be- tween "method" and "timing" of service, Brief for United States 19­20, 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT 670 HENDERSON v. UNITED STATES Opinion of the Court is the whole of Rule 4, a nonjurisdictional rule governing "practice and procedure" in federal cases, see 28 U. S. C. § 2072(a), consistent with the Rules Enabling Act and Fed- eral Rule 82, and rendering provisions like the Suits in Admi- ralty Act's service "forthwith" requirement "of no further force or effect," § 2072(b). See Jones & Laughlin Steel, Inc. v. Mon River Towing, Inc., 772 F. 2d 62, 66 (CA3 1985) (just as Rule 4 "now governs the method of service of process in admiralty actions, as well as service of process on the United States in all civil cases to which it is a party," so the "con- gressional enactment of a uniform 120-day period for ac- complishing service of process" supersedes inconsistent prior law, in particular, "the Suits in Admiralty Act's requirement of forthwith service"); Kenyon v. United States, 676 F. 2d 1229, 1232 (CA9 1981) (Boochever, J., concurring) ("I can see no logical reason why there should be a different method of service in this one instance [Suits in Admiralty Act cases] in which the United States is a defendant.").18 n. 18. Current Rule 4(i)(3) shows why the suggested separation of "time" from "method" or "manner" in this context is not credible. That provi- sion, addressing "time" in relation to "manner," instructs: "The court shall allow a reasonable time for service of process . . . for the purpose of curing the failure to serve multiple officers . . . of the United States if the plaintiff has effected service on either the United States attorney or the Attorney General of the United States." 18 Judge Boochever, like Judge Friendly, see supra, at 668, n. 13, reluc- tantly concurred in Circuit precedent, which ranked service "forthwith" "a condition precedent to the congressional waiver of the Government's sovereign immunity," Kenyon, 676 F. 2d, at 1231. But he stated cogently the view he would take "if freed from the bounds of stare decisis": "Section 742 does not constitute an integral part of the substantive waiver of sovereign immunity, but is a mere procedural provision necessary at the time of the statute's enactment, to effectuate that waiver. As such it was superseded by the Federal Rules." Id., at 1232 (concurring opinion). Curiously, although the Ninth Circuit, in Kenyon and other cases, has typed the Suits in Admiralty Act service "forthwith" provision "jurisdic- tional," that Court of Appeals has pointed to a remedy for litigants in Henderson's situation: Amend the complaint, even after the 2-year statute 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 671 Opinion of the Court Service of process, we have come to understand, is prop- erly regarded as a matter discrete from a court's jurisdiction to adjudicate a controversy of a particular kind,19 or against a particular individual or entity.20 Its essential purpose is auxiliary, a purpose distinct from the substantive matters aired in the precedent on which the dissent, wrenching cases from context, extensively relies-who may sue,21 on what claims,22 for what relief,23 within what limitations period.24 of limitations (46 U. S. C. App. § 745) has run, serve the United States Attorney and the Attorney General "forthwith," and by those steps, gain the benefit of the original complaint filing date through the application of the "relation back" provision of Federal Rule of Civil Procedure 15(c). See Ashland v. Ling-Temco-Vought, Inc., 711 F. 2d 1431, 1435­1437 (CA9 1983) (allowing such relation back when plaintiff amended a complaint, brought four years earlier under the Federal Tort Claims Act, to assert instead a claim under the Suits in Admiralty Act); cf. Tr. of Oral Arg. 38 (counsel for United States acknowledged that Henderson, who filed his complaint April 8, 1993, could have filed a fresh complaint anytime before August 27 of that year (the date the 2-year statute of limitations expired), and served it "forthwith," thereby avoiding the loss of his claim). 19 I. e., subject-matter jurisdiction. See 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3522, p. 78 (2d ed. 1984); Re- statement (Second) of Judgments § 11, p. 108 (1982) (defining "subject mat- ter jurisdiction" as the "authority [of the court] to adjudicate the type of controversy involved in the action"). 20 On relationships sufficient to support "jurisdiction over persons," see generally Restatement (Second) of Conflict of Laws §§ 27­32, 35­44, 47­52 (1971 and Supp. 1989). See also 4 Wright & Miller, Federal Practice and Procedure § 1064. 21 See United States v. Sherwood, 312 U. S. 584 (1941) (Tucker Act, allowing contract claims against United States, does not authorize joinder of claims between private parties). 22 See United States v. Nordic Village, Inc., 503 U. S. 30, 39 (1992) (Bank- ruptcy Code § 106(c) does not waive the Government's sovereign immunity from bankruptcy trustee's monetary relief claims). 23 See Library of Congress v. Shaw, 478 U. S. 310, 323 (1986) (Govern- ment's waiver of immunity from suit for damages does not waive immunity with respect to interest). 24 See, e. g., United States v. Williams, 514 U. S. 527, 534, n. 7 (1995); Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 517us2$54P 02-05-99 11:39:02 PAGES OPINPGT 672 HENDERSON v. UNITED STATES Scalia, J., concurring Instead, the core function of service is to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the com- plaint and present defenses and objections.25 Seeing service in this light, and in view of the uniform system Rule 4 of the Federal Rules of Civil Procedure provides, we are satisfied that the service "forthwith" provision of Suits in Admiralty Act, 46 U. S. C. App. § 742, has been displaced by Rule 4, and therefore has no current force or effect. * * * For the reasons stated, the judgment of the Court of Ap- peals affirming the dismissal of Henderson's complaint is re- versed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Justice Scalia, with whom Justice Kennedy joins, concurring. I join the opinion of the Court. I write separately to make clear that it is not my view, and I do not understand the Court to hold, that no procedural provision can be juris- dictional. It assuredly is within the power of Congress to condition its waiver of sovereign immunity upon strict com- pliance with procedural provisions attached to the waiver, with the result that failure to comply will deprive a court of U. S. 273, 287 (1983). But cf. Honda v. Clark, 386 U. S. 484 (1967) (Trad- ing with Enemy Act § 34(f) provided a 60-day claim-filing limitation; Court applied traditional equitable tolling principles to preserve petitioners' cause of action where similar suit was filed within 60-day limitation). 25 See Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950) (to qualify as adequate, notice generally must "apprise interested parties of the pendency of the action and afford them an opportunity to present their objections"). See also Von Mehren & Trautman, Jurisdic- tion to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1134 (1966) (recognizing notice as a matter separate from bases of adjudicatory jurisdiction); 4 Wright & Miller, supra, § 1063, at 225 (same). 517us2$54K 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 673 Thomas, J., dissenting jurisdiction. For the reasons stated by the Court, I do not think that the legislative scheme here makes the "forthwith" service requirement such a condition. Justice Thomas, with whom The Chief Justice and Justice O'Connor join, dissenting. The Suits in Admiralty Act (SAA or Act) entitles the United States to be served with process "forthwith" in all admiralty proceedings brought under the Act. As a statu- tory condition on the Government's waiver of its immunity, this time restriction on service demands strict compliance and delimits the district court's jurisdiction to entertain suits in admiralty against the United States. The majority's con- clusion that this requirement is supplanted by former Fed- eral Rule of Civil Procedure 4(j) (now Rule 4(m)) rests on a misreading of the SAA and is irreconcilable with our sover- eign immunity jurisprudence. Because I believe that Con- gress intended to restrict admiralty suits against the United States to those cases in which the United States receives service of process forthwith, I respectfully dissent. As a sovereign, the United States "is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U. S. 584, 586 (1941). "A necessary corollary of this rule is that when Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied." Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 287 (1983). See also Lehman v. Nakshian, 453 U. S. 156, 160­ 161 (1981) ("Like a waiver of [sovereign] immunity itself, which must be `unequivocally expressed,' `this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied' " (citations omitted)). The fact that the condition involves a matter of procedure does not affect the analysis, for "in many cases 517us2$54N 02-05-99 11:39:02 PAGES OPINPGT 674 HENDERSON v. UNITED STATES Thomas, J., dissenting this Court has read procedural rules embodied in statutes waiving immunity strictly, with an eye to effectuating a restrictive legislative purpose when Congress relinquishes sovereign immunity." Honda v. Clark, 386 U. S. 484, 501 (1967). As always, the starting point in interpreting the extent of a waiver of sovereign immunity is the text of the statute. Section 2 of the Act contains the actual waiver. It provides that "[i]n cases where if [a] vessel [of the United States] were privately owned or operated, or if . . . cargo [of the United States] were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States." 46 U. S. C. App. § 742. Section 2 also contains the service pro- vision at issue in this case, which states that a plaintiff suing the United States in admiralty "shall forthwith serve a copy of his libel on the United States attorney for such district and mail a copy thereof by registered mail to the Attorney General of the United States, and shall file a sworn return of such service and mailing. Such service and mailing shall constitute valid service on the United States." Ibid. Sec- tion 3 of the Act, aptly titled "Procedure in cases of libel in personam," provides that suits under the SAA "shall proceed and shall be heard and determined according to the princi- ples of law and to the rules of practice obtaining in like cases between private parties." § 743. The text and structure of the SAA lead me to conclude that Congress intended to allow admiralty suits to proceed against the United States only in cases in which process is served "forthwith." The key to understanding the scheme enacted by Congress lies not so much in Congress' decision to place this service requirement in § 2 as in its decision not to address service of process in § 3; for this reason, the ma- jority's sentence-by-sentence analysis of § 2, see ante, at 665­ 668, is largely beside the point. Section 3 provides that the 517us2$54N 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 675 Thomas, J., dissenting ordinary rules of procedure governing private parties in ad- miralty also govern suits under the SAA. But Congress ex- cepted from this provision the service-of-process require- ment and placed it in a separate section altogether. This suggests not only that Congress attached greater signifi- cance to the requirement that process be served forthwith than to other procedural rules, but, more importantly, that Congress expected process to be served forthwith in SAA cases regardless of the "principles of law and . . . rules of practice obtaining in like cases between private parties." 46 U. S. C. App. § 743. Even were I not convinced that the SAA's requirement of prompt service is a condition on the Government's waiver of sovereign immunity, I still could not agree with the majority that it clearly is not a condition on the waiver. At best, the SAA is ambiguous on this point, and when interpreting the breadth of a waiver of sovereign immunity, ambiguity must always be resolved in favor of the Government. See United States v. Williams, 514 U. S. 527, 531 (1995). We have con- sistently reaffirmed "the traditional principle that the Gov- ernment's consent to be sued must be construed strictly in favor of the sovereign, and not enlarge[d] . . . beyond what the language requires." United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992) (citations and internal quotation marks omitted). See also Library of Congress v. Shaw, 478 U. S. 310, 318 (1986). It is at least plausible to interpret the SAA's service provision as a condition on the waiver, and that is enough to justify construing the statute in the Gov- ernment's favor. Cf. Nordic Village, supra, at 37. Because the SAA's service requirement is best read as a condition on the Government's waiver of sovereign immu- nity, it necessarily follows that this requirement cannot be superseded by a Federal Rule of Civil Procedure. Sover- eign immunity is by nature jurisdictional, FDIC v. Meyer, 510 U. S. 471, 475 (1994), and the terms of the United States' " `consent to be sued in any court define that court's jurisdic- 517us2$54N 02-05-99 11:39:02 PAGES OPINPGT 676 HENDERSON v. UNITED STATES Thomas, J., dissenting tion to entertain the suit.' " Ibid. (quoting Sherwood, 312 U. S., at 586). Though the Rules Enabling Act provides that all previously enacted laws that are "in conflict with" the Federal Rules of Civil Procedure "shall be of no further force or effect," 28 U. S. C. § 2072(b), it also expressly provides that the Federal Rules "shall not abridge, enlarge or modify any substantive right," ibid. Allowing SAA claims in which process is not served forthwith to proceed against the United States infringes upon the Government's immunity and thereby alters a substantive right in direct contravention of the Rules Enabling Act. Moreover, Federal Rule of Civil Procedure 82 makes clear that the Rules of Procedure "shall not be construed to extend or limit the jurisdiction of the United States district courts." Given the jurisdictional na- ture of a waiver of sovereign immunity, allowing this suit to proceed also violates Rule 82. I do not mean to imply that ordinary procedural rules au- tomatically become jurisdictional prerequisites in civil cases simply because the United States is a defendant; they do not. But Congress certainly has the power to impose a procedural requirement as a condition on a waiver of sovereign immu- nity and to require strict compliance with that condition as a prerequisite to invoking or maintaining the court's jurisdic- tion. The text and structure of the SAA demonstrate that Congress exercised this power when it enacted the SAA, and "nothing in the . . . rules of civil practice so far as they may be applicable in suits brought in district courts [against the Government] authorizes the maintenance of any suit against the United States to which it has not otherwise consented." Sherwood, supra, at 589.1 1 For instance, in United States v. Sherwood, 312 U. S. 584 (1941), we held that the possibility of joinder under the liberal joinder provisions of the Federal Rules does not authorize a district court to hear a claim brought against the Government for breach of contract by a party not specifically authorized to bring suit against the United States under the Tucker Act. Notwithstanding the possibility of joinder in a similar case 517us2$54N 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 677 Thomas, J., dissenting The majority rejects the proposition, accepted by four of the five Courts of Appeals that have addressed this issue, that a service requirement can serve as a condition on a waiver of sovereign immunity.2 This cannot be, the major- ity concludes, because service is "not sensibly typed `sub- stantive' or `jurisdictional,' " and instead has a " `procedural' cast" and "deal[s] with case processing." Ante, at 667­668. But the proper inquiry is not whether the condition is in nature "procedural" or "substantive," for we have long main- tained that even procedural rules can condition a waiver of sovereign immunity. See Honda, 386 U. S., at 501. The fact that Congress has determined to limit the scope of its consent to suit is sufficient to restrict federal-court jurisdic- tion over the United States, regardless of the nature of the condition Congress has attached. For instance, though no one would claim that failure to satisfy a statute of limitations in a case between private parties would serve as a jurisdic- tional bar to the plaintiff's suit, we have long held that a statute of limitations attached to a waiver of sovereign im- munity functions as a condition on the waiver and defines the limits of the district court's jurisdiction to hear a claim against the United States. See Williams, 514 U. S., at 534, n. 7; Block, 461 U. S., at 287; United States v. Kubrick, 444 U. S. 111, 117­118 (1979); Soriano v. United States, 352 U. S. 270, 271, 273 (1957). See generally 14 C. Wright, between private parties, we explained that "[t]he matter [was] not one of procedure but of jurisdiction whose limits are marked by the Govern- ment's consent to be sued," and held that the Government's consent to suit "may be conditioned . . . on the restriction of the issues to be adjudicated in the suit, to those between the claimant and the Government." Id., at 591. 2 See United States v. Holmberg, 19 F. 3d 1062 (CA5), cert. denied, 513 U. S. 986 (1994); Libby v. United States, 840 F. 2d 818 (CA11 1988); Amella v. United States, 732 F. 2d 711 (CA9 1984); Battaglia v. United States, 303 F. 2d 683 (CA2), cert. dism'd, 371 U. S. 907 (1962). Only one Circuit has gone the other way. See Jones & Laughlin Steel, Inc. v. Mon River Tow- ing, Inc., 772 F. 2d 62 (CA3 1985). 517us2$54N 02-05-99 11:39:02 PAGES OPINPGT 678 HENDERSON v. UNITED STATES Thomas, J., dissenting A. Miller, & E. Cooper, Federal Practice and Procedure § 3654, pp. 194­199 (1985).3 The same is true of the SAA's service requirement. While service of process in a case be- tween private parties may generally be understood to be "a matter discrete from a court's jurisdiction to adjudicate a controversy of a particular kind," ante, at 671, a waiver of sovereign immunity conditioned upon a particular method of service would transform what is ordinarily a nonjurisdic- tional rule into a jurisdictional one.4 Once the majority concludes that Congress attached no particular significance to the SAA's requirement that process be served forthwith, the conclusion that Rule 4(j), by opera- tion of the Rules Enabling Act, displaces § 2's service re- quirement would appear to flow naturally. But that is not the case. As the Government concedes, the Rules Enabling 3 Although we held in Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95­96 (1990), that statutes of limitations in cases brought against the Government are presumptively subject to equitable tolling, we also reaf- firmed in that case that a time restriction on suit against the United States "is a condition to the waiver of sovereign immunity and thus must be strictly construed." Id., at 94. Irwin did mark a departure from our earlier, and stricter, treatment of statutes of limitations in the sovereign immunity context, but our decision in United States v. Williams, 514 U. S. 527 (1995), makes clear that statutes of limitations in suits brought against the United States are no less jurisdictional prerequisites than they were before Irwin. Williams confirmed that a statute of limitations "narrow[s] the waiver of sovereign immunity," 514 U. S., at 534, n. 7, and cited for this proposition United States v. Dalm, 494 U. S. 596 (1990), which held that failure to file a claim against the Government for a federal tax refund within the statute of limitations operates as a jurisdictional bar to suit. 4 I recognize that, under my reading of the Act, jurisdiction in an SAA suit may turn upon the plaintiff's use of registered mail, which is also specified in the sentence of § 2 that requires process to be served forth- with. 46 U. S. C. App. § 742. Though this may seem like an odd require- ment from our modern perspective, the most sensible textual reading of the Act is still that Congress sought to impose a specific method of service in SAA cases without regard to the rules governing service generally. Congress is free to amend the statute if it determines that the SAA has fallen out of date with modern mailing practices. 517us2$54N 02-05-99 11:39:02 PAGES OPINPGT Cite as: 517 U. S. 654 (1996) 679 Thomas, J., dissenting Act is "technically inapplicable" in this case, Brief for United States 16, n. 14, because Rule 4(j) was not promulgated by this Court but rather was enacted by Congress, see Pub. L. 97­462, 96 Stat. 2528, and the Rules Enabling Act by its terms nullifies only statutory rules of procedure that conflict with rules promulgated by the Supreme Court. The majority acknowledges the inapplicability of the Rules Enabling Act, ante, at 668, but appears to apply the Act nonetheless, ante, at 669­670 (citing 28 U. S. C. § 2072(b)). The majority is not entirely clear on this point, however, and it appears that the majority may instead find that Rule 4(j) effected an implied repeal of § 2's service requirement inde- pendent of the Rules Enabling Act. See ante, at 668 ("[A] Rule made law by Congress supersedes conflicting laws no less than a Rule this Court prescribes"). The majority may mean by this statement only that the Rules Enabling Act pertains equally to Rules of Procedure promulgated by this Court and by Congress, but I am reluctant to assume, absent clearer indication, the Court's reliance on a method of statu- tory construction that allows us to rewrite a statute when the text does not address the specific situation before us or when it does not generate an outcome that we desire. Re- gardless of the rubric under which this case is actually de- cided, the Court, in my opinion, reaches the wrong conclu- sion. In contrast to the rest of the procedures that apply in SAA cases, the Act requires a specific method of service even though the procedures that govern similar cases may differ. This, in combination with the critical fact that this case in- volves a waiver of sovereign immunity, leads me to conclude that Rule 4(j) does not displace the service requirement of § 2 either under the Rules Enabling Act or as an implied repeal. The only question remaining is whether Henderson served his complaint on the United States "forthwith." There is no reasonable argument that he did. Henderson served his complaint on the United States Attorney 148 days after he 517us2$54N 02-05-99 11:39:02 PAGES OPINPGT 680 HENDERSON v. UNITED STATES Thomas, J., dissenting filed it in the District Court. Although we have never undertaken to define "forthwith" as it is used in the SAA, it is clear that the term "connotes action which is immedi- ate, without delay, prompt, and with reasonable dispatch." Amella v. United States, 732 F. 2d 711, 713 (CA9 1984) (citing Black's Law Dictionary 588 (5th ed. 1979)). See also Dick- erman v. Northern Trust Co., 176 U. S. 181, 192­193 (1900). Whatever problems Henderson may have had in serving his complaint upon the United States, the 148-day delay can hardly be described as process served forthwith under even the most generous definition of the term. I respectfully dissent. 517us2$55Z 02-05-99 11:39:36 PAGES OPINPGT OCTOBER TERM, 1995 681 Syllabus DOCTOR'S ASSOCIATES, INC., et al. v. CASAROTTO et ux. certiorari to the supreme court of montana No. 95­559. Argued April 16, 1996-Decided May 20, 1996 When a dispute arose between parties to a standard form franchise agree- ment for the operation of a Subway sandwich shop in Montana, respond- ent franchisee sued petitioners, franchisor Doctor's Associates, Inc. (DAI), and its agent, Lombardi, in a Montana state court. The court stayed the lawsuit pending arbitration pursuant to the arbitration clause set out in ordinary type on page nine of the franchise agreement. The Montana Supreme Court reversed, holding that the arbitration clause was unenforceable because it did not meet the state-law requirement that "[n]otice that a contract is subject to arbitration" be "typed in underlined capital letters on the first page of the contract." Mont. Code Ann. § 27­5­114(4). DAI and Lombardi unsuccessfully argued that § 27­5­114(4) was preempted by § 2 of the Federal Arbitration Act (FAA), which declares written provisions for arbitration "valid, irrevo- cable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." In arguing for preemption, DAI and Lombardi dominantly relied on Southland Corp. v. Keating, 465 U. S. 1, and Perry v. Thomas, 482 U. S. 483, in which this Court established that "state law . . . is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of con- tracts generally," but not if the state-law principle "takes its meaning precisely from the fact that a contract to arbitrate is at issue." Id., at 493, n. 9 (emphasis added). The Montana Supreme Court, however, thought Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, limited § 2's preemptive force and correspondingly qualified Southland and Perry; the proper inquiry, the Montana Supreme Court said, should focus not on the bare words of § 2 but on the question: Would the application of § 27­5­114(4)'s notice requirement undermine the FAA's goals and policies. In the Montana court's judgment, the notice requirement did not undermine these goals and policies, for it did not preclude arbitration agreements altogether. On remand from this Court for reconsideration in light of Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, the Montana court adhered to its original ruling. Held: Montana's first-page notice requirement, which governs not "any contract," but specifically and solely contracts "subject to arbitration," 517us2$55Z 02-05-99 11:39:36 PAGES OPINPGT 682 DOCTOR'S ASSOCIATES, INC. v. CASAROTTO Opinion of the Court conflicts with the FAA and is therefore displaced by the federal meas- ure. Generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2, see, e. g., Allied-Bruce, 513 U. S., at 281, but courts may not invalidate arbitration agreements under state laws appli- cable only to arbitration provisions, see, e. g., ibid. By enacting § 2, Congress precluded States from singling out arbitration provisions for suspect status, requiring instead that such provisions be placed upon the same footing as other contracts. Scherk v. Alberto-Culver Co., 417 U. S. 506, 511. Montana's § 27­5­114(4) directly conflicts with § 2 be- cause the State's law conditions the enforceability of arbitration agree- ments on compliance with a special notice requirement not applicable to contracts generally. The Montana Supreme Court misread Volt in reaching a contrary conclusion. The state rule examined in Volt deter- mined only the efficient order of proceedings; it did not affect the en- forceability of the arbitration agreement itself. Applying § 27­5­114(4) here, in contrast, would invalidate the arbitration clause. Pp. 686­688. 274 Mont. 3, 901 P. 2d 596, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, post, p. 689. Mark R. Kravitz argued the cause for petitioners. With him on the briefs were Jeffrey R. Babbin and H. Bartow Farr III. Lucinda A. Sikes argued the cause for respondents. With her on the brief were David C. Vladeck, Paul Alan Levy, and William C. Watt.* Justice Ginsburg delivered the opinion of the Court. This case concerns a standard form franchise agreement for the operation of a Subway sandwich shop in Montana. *Briefs of amici curiae urging reversal were filed for the American Council of Life Insurance by Patricia A. Dunn, Stephen J. Goodman, and Phillip E. Stano; for the International Franchise Association et al. by William J. Fitzpatrick and John F. Verhey; and for Kaiser Foundation Health Plan, Inc., by Kennedy P. Richardson. Deborah M. Zuckerman, Steven S. Zaleznick, and Patricia Sturdevant filed a brief for the American Association of Retired Persons et al. as amici curiae urging affirmance. 517us2$55P 02-05-99 11:39:36 PAGES OPINPGT Cite as: 517 U. S. 681 (1996) 683 Opinion of the Court When a dispute arose between parties to the agreement, franchisee Paul Casarotto sued franchisor Doctor's Associ- ates, Inc. (DAI), and DAI's Montana development agent, Nick Lombardi, in a Montana state court. DAI and Lom- bardi sought to stop the litigation pending arbitration pur- suant to the arbitration clause set out on page nine of the franchise agreement. The Federal Arbitration Act (FAA or Act) declares writ- ten provisions for arbitration "valid, irrevocable, and en- forceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U. S. C. § 2. Montana law, however, declares an arbitration clause unenforceable unless "[n]otice that [the] contract is subject to arbitration" is "typed in underlined capital letters on the first page of the contract." Mont. Code Ann. § 27­5­114(4) (1995). The question here presented is whether Montana's law is compat- ible with the federal Act. We hold that Montana's first-page notice requirement, which governs not "any contract," but specifically and solely contracts "subject to arbitration," con- flicts with the FAA and is therefore displaced by the fed- eral measure. I Petitioner DAI is the national franchisor of Subway sand- wich shops. In April 1988, DAI entered a franchise agree- ment with respondent Paul Casarotto, which permitted Casarotto to open a Subway shop in Great Falls, Montana. The franchise agreement stated, on page nine and in ordi- nary type: "Any controversy or claim arising out of or relat- ing to this contract or the breach thereof shall be settled by Arbitration . . . ." App. 75. In October 1992, Casarotto sued DAI and its agent, Nick Lombardi, in Montana state court, alleging state-law con- tract and tort claims relating to the franchise agreement. DAI demanded arbitration of those claims, and successfully moved in the Montana trial court to stay the lawsuit pending arbitration. Id., at 10­11. 517us2$55P 02-05-99 11:39:36 PAGES OPINPGT 684 DOCTOR'S ASSOCIATES, INC. v. CASAROTTO Opinion of the Court The Montana Supreme Court reversed. Casarotto v. Lombardi, 268 Mont. 369, 886 P. 2d 931 (1994). That court left undisturbed the trial court's findings that the franchise agreement fell within the scope of the FAA and covered the claims Casarotto stated against DAI and Lombardi. The Montana Supreme Court held, however, that Mont. Code Ann. § 27­5­114(4) rendered the agreement's arbitration clause unenforceable. The Montana statute provides: "Notice that a contract is subject to arbitration . . . shall be typed in underlined capital letters on the first page of the contract; and unless such notice is displayed thereon, the contract may not be subject to arbitration." Notice of the arbitration clause in the franchise agreement did not appear on the first page of the contract. Nor was anything relating to the clause typed in underlined capital letters. Because the State's statutory notice requirement had not been met, the Montana Supreme Court declared the parties' dispute "not subject to arbitration." 268 Mont., at 382, 886 P. 2d, at 939. DAI and Lombardi unsuccessfully argued before the Mon- tana Supreme Court that § 27­5­114(4) was preempted by § 2 of the FAA.1 DAI and Lombardi dominantly relied on our decisions in Southland Corp. v. Keating, 465 U. S. 1 (1984), and Perry v. Thomas, 482 U. S. 483 (1987). In Southland, we held that § 2 of the FAA applies in state as well as federal courts, see 465 U. S., at 12, and "withdr[aws] the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration," id., at 10. We noted in the pathmarking South- 1 Section 2 provides, in relevant part: "A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any con- tract." 9 U. S. C. § 2. 517us2$55P 02-05-99 11:39:36 PAGES OPINPGT Cite as: 517 U. S. 681 (1996) 685 Opinion of the Court land decision that the FAA established a "broad principle of enforceability," id., at 11, and that § 2 of the federal Act pro- vided for revocation of arbitration agreements only upon "grounds as exist at law or in equity for the revocation of any contract." In Perry, we reiterated: "[S]tate law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and en- forceability of contracts generally. A state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with [the text of § 2]." 482 U. S., at 493, n. 9. The Montana Supreme Court, however, read our decision in Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 (1989), as limit- ing the preemptive force of § 2 and correspondingly qualify- ing Southland and Perry. 268 Mont., at 378­381, 886 P. 2d, at 937­939. As the Montana Supreme Court comprehended Volt, the proper inquiry here should focus not on the bare words of § 2, but on this question: Would the application of Montana's notice requirement, contained in § 27­5­114(4), "undermine the goals and policies of the FAA." 268 Mont., at 381, 886 P. 2d, at 938 (internal quotation marks omitted). Section 27­5­114(4), in the Montana court's judgment, did not undermine the goals and policies of the FAA, for the notice requirement did not preclude arbitration agreements altogether; it simply prescribed "that before arbitration agreements are enforceable, they be entered knowingly." Id., at 381, 886 P. 2d, at 939. DAI and Lombardi petitioned for certiorari. Last Term, we granted their petition, vacated the judgment of the Mon- tana Supreme Court, and remanded for further consideration in light of Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995). See 515 U. S. 1129 (1995). In Allied-Bruce, we restated what our decisions in Southland and Perry had established: 517us2$55P 02-05-99 11:39:36 PAGES OPINPGT 686 DOCTOR'S ASSOCIATES, INC. v. CASAROTTO Opinion of the Court "States may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause `upon such grounds as exist at law or in equity for the revocation of any contract.' 9 U. S. C. § 2 (emphasis added). What States may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit), but not fair enough to enforce its arbitration clause. The Act makes any such state policy unlawful, for that kind of policy would place arbitration clauses on an unequal `footing,' directly contrary to the Act's language and Congress's intent." 513 U. S., at 281. On remand, without inviting or permitting further briefing or oral argument,2 the Montana Supreme Court adhered to its original ruling. The court stated: "After careful review, we can find nothing in the [Allied-Bruce] decision which relates to the issues presented to this Court in this case." Casarotto v. Lombardi, 274 Mont. 3, 7, 901 P. 2d 596, 598 (1995). Elaborating, the Montana court said it found "no suggestion in [Allied-Bruce] that the principles from Volt on which we relied [to uphold § 27­5­114(4)] have been modified in any way." Id., at 8, 901 P. 2d, at 598­599. We again granted certiorari, 516 U. S. 1036 (1996), and now reverse. II Section 2 of the FAA provides that written arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revoca- tion of any contract." 9 U. S. C. § 2 (emphasis added). Re- peating our observation in Perry, the text of § 2 declares that state law may be applied "if that law arose to govern issues 2 Dissenting Justice Gray thought it "cavalier" of her colleagues to ig- nore the defendants' request for an "opportunity to brief the issues raised by the . . . remand and to present oral argument." Casarotto v. Lom- bardi, 274 Mont. 3, 9­10, 901 P. 2d 596, 599­600 (1995). 517us2$55P 02-05-99 11:39:36 PAGES OPINPGT Cite as: 517 U. S. 681 (1996) 687 Opinion of the Court concerning the validity, revocability, and enforceability of contracts generally." 482 U. S., at 493, n. 9. Thus, gener- ally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2. See Allied-Bruce, 513 U. S., at 281; Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 483­484 (1989); Shearson/Amer- ican Express Inc. v. McMahon, 482 U. S. 220, 226 (1987). Courts may not, however, invalidate arbitration agree- ments under state laws applicable only to arbitration provi- sions. See Allied-Bruce, 513 U. S., at 281; Perry, 482 U. S., at 493, n. 9. By enacting § 2, we have several times said, Congress precluded States from singling out arbitration pro- visions for suspect status, requiring instead that such provi- sions be placed "upon the same footing as other contracts." Scherk v. Alberto-Culver Co., 417 U. S. 506, 511 (1974) (inter- nal quotation marks omitted). Montana's § 27­5­114(4) di- rectly conflicts with § 2 of the FAA because the State's law conditions the enforceability of arbitration agreements on compliance with a special notice requirement not applicable to contracts generally. The FAA thus displaces the Mon- tana statute with respect to arbitration agreements covered by the Act. See 2 I. Macneil, R. Speidel, T. Stipanowich, & G. Shell, Federal Arbitration Law § 19.1.1, pp. 19:4­19:5 (1995) (under Southland and Perry, "state legislation requir- ing greater information or choice in the making of agree- ments to arbitrate than in other contracts is preempted").3 3 At oral argument, counsel for Casarotto urged a broader view, under which § 27­5­114(4) might be regarded as harmless surplus. See Tr. of Oral Arg. 29­32. Montana could have invalidated the arbitration clause in the franchise agreement under general, informed consent principles, counsel suggested. She asked us to regard § 27­5­114(4) as but one illus- tration of a cross-the-board rule: Unexpected provisions in adhesion con- tracts must be conspicuous. See also Brief for Respondents 21­24. But the Montana Supreme Court announced no such sweeping rule. The court did not assert as a basis for its decision a generally applicable princi- ple of "reasonable expectations" governing any standard form contract 517us2$55P 02-05-99 11:39:36 PAGES OPINPGT 688 DOCTOR'S ASSOCIATES, INC. v. CASAROTTO Opinion of the Court The Montana Supreme Court misread our Volt decision and therefore reached a conclusion in this case at odds with our rulings. Volt involved an arbitration agreement that in- corporated state procedural rules, one of which, on the facts of that case, called for arbitration to be stayed pending the resolution of a related judicial proceeding. The state rule examined in Volt determined only the efficient order of pro- ceedings; it did not affect the enforceability of the arbitration agreement itself. We held that applying the state rule would not "undermine the goals and policies of the FAA," 489 U. S., at 478, because the very purpose of the Act was to "ensur[e] that private agreements to arbitrate are enforced according to their terms," id., at 479. Applying § 27­5­114(4) here, in contrast, would not enforce the arbitration clause in the contract between DAI and Casarotto; instead, Montana's first-page notice requirement would invalidate the clause. The "goals and policies" of the FAA, this Court's precedent indicates, are antithetical to threshold limitations placed specifically and solely on arbitra- tion provisions. Section 2 "mandate[s] the enforcement of arbitration agreements," Southland, 465 U. S., at 10, "save upon such grounds as exist at law or in equity for the revoca- tion of any contract," 9 U. S. C. § 2. Section 27­5­114(4) of Montana's law places arbitration agreements in a class apart from "any contract," and singularly limits their validity. The State's prescription is thus inconsonant with, and is therefore preempted by, the federal law. term. Cf. Transamerica Ins. Co. v. Royle, 202 Mont. 173, 180, 656 P. 2d 820, 824 (1983) (invalidating provision in auto insurance policy that did not "honor the reasonable expectations" of the insured). Montana's decision trains on and upholds a particular statute, one setting out a precise, arbitration-specific limitation. We review that disposition, and no other. It bears reiteration, however, that a court may not "rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforce- ment would be unconscionable, for this would enable the court to effect what . . . the state legislature cannot." Perry v. Thomas, 482 U. S. 483, 493, n. 9 (1987). 517us2$55P 02-05-99 11:39:36 PAGES OPINPGT Cite as: 517 U. S. 681 (1996) 689 Thomas, J., dissenting * * * For the reasons stated, the judgment of the Supreme Court of Montana is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Thomas, dissenting. For the reasons given in my dissent last Term in Allied- Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995), I re- main of the view that § 2 of the Federal Arbitration Act, 9 U. S. C. § 2, does not apply to proceedings in state courts. Accordingly, I respectfully dissent. 517us3$56Z 02-05-99 12:45:01 PAGES OPINPGT 690 OCTOBER TERM, 1995 Syllabus ORNELAS et al. v. UNITED STATES certiorari to the united states court of appeals for the seventh circuit No. 95­5257. Argued March 26, 1996-Decided May 28, 1996 In denying petitioners' motion to suppress cocaine found in their car, the District Court ruled that the police had reasonable suspicion to stop and question petitioners, and probable cause to remove one of the in- terior panels where a package containing the cocaine was found. The Court of Appeals ultimately affirmed both determinations, reviewing each "deferentially," and "for clear error," and finding no clear error in either instance. Held: The ultimate questions of reasonable suspicion to stop and probable cause to make a warrantless search should be reviewed de novo. The principal components of either inquiry are (1) a determination of the historical facts leading up to the stop or search, and (2) a decision on the mixed question of law and fact whether the historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. Independent appellate review of the latter determination is consistent with the position taken by this Court, see, e. g., Brinegar v. United States, 338 U. S. 160; will prevent unacceptably varied results based on the interpretation of simi- lar facts by different trial judges, see id., at 171; is necessary if appellate courts are to maintain control of, and to clarify, the pertinent legal rules, see Miller v. Fenton, 474 U. S. 104, 114; and will tend to unify precedent and to provide police with a defined set of rules which, in most instances, will make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforce- ment, see, e. g., New York v. Belton, 453 U. S. 454, 458. However, a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn therefrom by resident judges, who view such facts in light of the community's distinctive features and events, and by local police, who view the facts through the lens of their experience and expertise. Pp. 695­700. 16 F. 3d 714 and 52 F. 3d 328, vacated and remanded. Rehnquist, C. J., delivered the opinion of the Court, in which Stevens, O'Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, post, p. 700. 517us3$56Z 02-05-99 12:45:01 PAGES OPINPGT Cite as: 517 U. S. 690 (1996) 691 Opinion of the Court Robert G. LeBell argued the cause for petitioners. With him on the briefs was Brian W. Gleason. Cornelia T. L. Pillard argued the cause for the United States. With her on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solici- tor General Dreeben, and Joel M. Gershowitz. Peter D. Isakoff, by invitation of the Court, 516 U. S. 1008, argued the cause and filed a brief as amicus curiae in sup- port of the judgment below.* Chief Justice Rehnquist delivered the opinion of the Court. Petitioners each pleaded guilty to possession of cocaine with intent to distribute. They reserved their right to ap- peal the District Court's denial of their motion to suppress the cocaine found in their car. The District Court had found reasonable suspicion to stop and question petitioners as they entered their car, and probable cause to remove one of the interior panels where a package containing two kilograms of cocaine was found. The Court of Appeals opined that the findings of reasonable suspicion to stop, and probable cause to search, should be reviewed "deferentially," and "for clear error." We hold that the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo. The facts are not disputed. In the early morning of a December day in 1992, Detective Michael Pautz, a 20-year veteran of the Milwaukee County Sheriff's Department with 2 years specializing in drug enforcement, was conduct- ing drug-interdiction surveillance in downtown Milwaukee. *Tracey Maclin, Steven R. Shapiro, and Barbara E. Bergman filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. Fred E. Inbau, Wayne W. Schmidt, James P. Manak, and Bernard J. Farber filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance. 517us3$56H 02-05-99 12:45:01 PAGES OPINPGT 692 ORNELAS v. UNITED STATES Opinion of the Court Pautz noticed a 1981 two-door Oldsmobile with California license plates in a motel parking lot. The car attracted Pautz's attention for two reasons: because older model, two- door General Motors cars are a favorite with drug couriers because it is easy to hide things in them; and because Cali- fornia is a "source State" for drugs. Detective Pautz ra- dioed his dispatcher to inquire about the car's registration. The dispatcher informed Pautz that the owner was either Miguel Ledesma Ornelas or Miguel Ornelas Ledesma from San Jose, California; Pautz was unsure which name the dis- patcher gave. Detective Pautz checked the motel registry and learned that an Ismael Ornelas accompanied by a second man had registered at 4 a.m., without reservations. Pautz called for his partner, Donald Hurrle, a detective with approximately 25 years of law enforcement experience, assigned for the past 6 years to the drug enforcement unit. When Hurrle arrived at the scene, the officers contacted the local office of the Drug Enforcement Administration (DEA) and asked DEA personnel to run the names Miguel Ledesma Ornelas and Ismael Ornelas through the Narcotics and Dan- gerous Drugs Information System (NADDIS), a federal database of known and suspected drug traffickers. Both names appeared in NADDIS. The NADDIS report identi- fied Miguel Ledesma Ornelas as a heroin dealer from El Centro, California, and Ismael Ornelas, Jr., as a cocaine dealer from Tucson, Arizona. The officers then summoned Deputy Luedke and the department's drug-sniffing dog, Mer- lin. Upon their arrival, Detective Pautz left for another as- signment. Detective Hurrle informed Luedke of what they knew and together they waited. Sometime later, petitioners emerged from the motel and got into the Oldsmobile. Detective Hurrle approached the car, identified himself as a police officer, and inquired whether they had any illegal drugs or contraband. Petition- ers answered "No." Hurrle then asked for identification and was given two California driver's licenses bearing the names 517us3$56H 02-05-99 12:45:01 PAGES OPINPGT Cite as: 517 U. S. 690 (1996) 693 Opinion of the Court Saul Ornelas and Ismael Ornelas. Hurrle asked them if he could search the car and petitioners consented. The men appeared calm, but Ismael was shaking somewhat. Deputy Luedke, who over the past nine years had searched approxi- mately 2,000 cars for narcotics, searched the Oldsmobile's interior. He noticed that a panel above the right rear passenger armrest felt somewhat loose and suspected that the panel might have been removed and contraband hidden inside. Luedke would testify later that a screw in the door- jam adjacent to the loose panel was rusty, which to him meant that the screw had been removed at some time. Luedke dismantled the panel and discovered two kilograms of cocaine. Petitioners were arrested. Petitioners filed pretrial motions to suppress, alleging that the police officers violated their Fourth Amendment rights when the officers detained them in the parking lot and when Deputy Luedke searched inside the panel without a war- rant.1 The Government conceded in the court below that when the officers approached petitioners in the parking lot, a reasonable person would not have felt free to leave, so the encounter was an investigatory stop. See 16 F. 3d 714, 716 (CA7 1994). An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion, Terry v. Ohio, 392 U. S. 1 (1968), and a warrantless search of a car is valid if based on probable cause, California v. Acevedo, 500 U. S. 565, 569­570 (1991). 1 Petitioners also alleged that they had not given their consent to search the interior of the car. The Magistrate Judge rejected this claim, finding that the record "clearly establishe[d] consent to search the Oldsmobile" and that "neither [petitioner] placed any restrictions on the areas the offi- cers could search." App. 21. The Magistrate ruled that this consent did not give the officers authority to search inside the panel, however, because under Seventh Circuit precedent the police may not dismantle the car body during an otherwise valid search unless the police have probable cause to believe the car's panels contain narcotics. See United States v. Garcia, 897 F. 2d 1413, 1419­1420 (1990). We assume correct the Circuit's limita- tion on the scope of consent only for purposes of this decision. 517us3$56H 02-05-99 12:45:02 PAGES OPINPGT 694 ORNELAS v. UNITED STATES Opinion of the Court After conducting an evidentiary hearing, the Magistrate Judge concluded that the circumstances gave the officers rea- sonable suspicion, but not probable cause. The Magistrate found, as a finding of fact, that there was no rust on the screw and hence concluded that Deputy Luedke had an insuf- ficient basis to conclude that drugs would be found within the panel. The Magistrate nonetheless recommended that the District Court deny the suppression motions because he thought, given the presence of the drug-sniffing dog, that the officers would have found the cocaine by lawful means eventually and therefore the drugs were admissible under the inevitable discovery doctrine. See Nix v. Williams, 467 U. S. 431 (1984). The District Court adopted the Magistrate's recommenda- tion with respect to reasonable suspicion, but not its reason- ing as to probable cause. The District Court thought that the model, age, and source-State origin of the car, and the fact that two men traveling together checked into a motel at 4 o'clock in the morning without reservations, formed a drug-courier profile and that this profile together with the NADDIS reports gave rise to reasonable suspicion of drug- trafficking activity; in the court's view, reasonable suspicion became probable cause when Deputy Luedke found the loose panel. Accordingly, the court ruled that the cocaine need not be excluded.2 The Court of Appeals reviewed deferentially the District Court's determinations of reasonable suspicion and probable cause; it would reverse only upon a finding of "clear error." 3 2 The District Court emphasized twice that it did not reject the Magis- trate's recommendation with respect to the inevitable discovery doctrine. App. 30­31, and n. 2; id., at 43­44. But on appeal the Government did not defend the seizure on this alternative ground and the Seventh Circuit considered the argument waived. Id., at 71­72. 3 While the Seventh Circuit uses the term "clear error" to denote the deferential standard applied when reviewing determinations of reasonable suspicion or probable cause, we think the preferable term is "abuse of discretion." See Pierce v. Underwood, 487 U. S. 552, 558 (1988). "Clear 517us3$56H 02-05-99 12:45:02 PAGES OPINPGT Cite as: 517 U. S. 690 (1996) 695 Opinion of the Court 16 F. 3d, at 719. The court found no clear error in the reasonable-suspicion analysis and affirmed that determina- tion. Ibid. With respect to the probable-cause finding, however, the court remanded the case for a determination on whether Luedke was credible when testifying about the loose panel. Id., at 721­722. On remand, the Magistrate Judge expressly found the tes- timony credible. The District Court accepted the finding, and once again ruled that probable cause supported the search. The Seventh Circuit held that determination not clearly erroneous. Judgt. order reported at 52 F. 3d 328 (1995). We granted certiorari to resolve the conflict among the Circuits over the applicable standard of appellate review. 516 U. S. 963 (1996).4 Articulating precisely what "reasonable suspicion" and "probable cause" mean is not possible. They are common- sense, nontechnical conceptions that deal with " `the factual and practical considerations of everyday life on which rea- sonable and prudent men, not legal technicians, act.' " Illi- nois v. Gates, 462 U. S. 213, 231 (1983) (quoting Brinegar v. United States, 338 U. S. 160, 175 (1949)); see United States v. Sokolow, 490 U. S. 1, 7­8 (1989). As such, the standards are "not readily, or even usefully, reduced to a neat set of legal error" is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact. 4 Compare, e. g., United States v. Puerta, 982 F. 2d 1297, 1300 (CA9 1992) (de novo review); United States v. Ramos, 933 F. 2d 968, 972 (CA11 1991) (same), cert. denied, 503 U. S. 908 (1992); United States v. Patrick, 899 F. 2d 169, 171 (CA2 1990) (same), with United States v. Spears, 965 F. 2d 262, 268­271 (CA7 1992) (clear error). The United States, in accord with petitioners, contends that a de novo standard of review should apply to determinations of probable cause and reasonable suspicion. We therefore invited Peter D. Isakoff to brief and argue this case as amicus curiae in support of the judgment below. 516 U. S. 1008 (1996). Mr. Isakoff accepted the appointment and has well fulfilled his assigned responsibility. 517us3$56H 02-05-99 12:45:02 PAGES OPINPGT 696 ORNELAS v. UNITED STATES Opinion of the Court rules." Gates, supra, at 232. We have described reason- able suspicion simply as "a particularized and objective basis" for suspecting the person stopped of criminal activity, United States v. Cortez, 449 U. S. 411, 417­418 (1981), and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reason- able prudence in the belief that contraband or evidence of a crime will be found, see Brinegar, supra, at 175­176; Gates, supra, at 238. We have cautioned that these two legal prin- ciples are not "finely-tuned standards," comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. Gates, supra, at 235. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed. Gates, supra, at 232; Brinegar, supra, at 175 ("The standard of proof [for probable cause] is . . . correlative to what must be proved"); Ker v. California, 374 U. S. 23, 33 (1963) ("This Cour[t] [has a] long-established rec- ognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application"; "[e]ach case is to be decided on its own facts and circum- stances" (internal quotation marks omitted)); Terry v. Ohio, 392 U. S., at 29 (the limitations imposed by the Fourth Amendment "will have to be developed in the concrete fac- tual circumstances of individual cases"). The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the sec- ond is a mixed question of law and fact: "[T]he historical facts are admitted or established, the rule of law is undis- puted, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another 517us3$56H 02-05-99 12:45:02 PAGES OPINPGT Cite as: 517 U. S. 690 (1996) 697 Opinion of the Court way, whether the rule of law as applied to the established facts is or is not violated." Pullman-Standard v. Swint, 456 U. S. 273, 289, n. 19 (1982). We think independent appellate review of these ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases. We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court's determination. See, e. g., Brinegar, supra (rejecting District Court's conclusion that the police lacked probable cause); Alabama v. White, 496 U. S. 325 (1990) (conducting independent review and finding reasonable suspicion). A policy of sweeping deference would permit, "[i]n the absence of any significant difference in the facts," "the Fourth Amendment's incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute proba- ble cause." Brinegar, supra, at 171. Such varied results would be inconsistent with the idea of a unitary system of law. This, if a matter-of-course, would be unacceptable. In addition, the legal rules for probable cause and reason- able suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify, the legal principles. See Miller v. Fenton, 474 U. S. 104, 114 (1985) (where the "relevant legal principle can be given meaning only through its application to the particular circumstances of a case, the Court has been reluctant to give the trier of fact's conclusions presumptive force and, in so doing, strip a federal appellate court of its primary function as an exposi- tor of law"). Finally, de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined " `set of rules which, in most instances, makes it pos- sible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of 517us3$56H 02-05-99 12:45:02 PAGES OPINPGT 698 ORNELAS v. UNITED STATES Opinion of the Court law enforcement.' " New York v. Belton, 453 U. S. 454, 458 (1981); see also Thompson v. Keohane, 516 U. S. 99, 115 (1995) ("[T]he law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law," and those effects "serve legitimate law enforce- ment interests"). It is true that because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multi- faceted, "one determination will seldom be a useful `prece- dent' for another," Gates, supra, at 238, n. 11. But there are exceptions. For instance, the circumstances in Brinegar, supra, and Carroll v. United States, 267 U. S. 132 (1925), were so alike that we concluded that reversing the Court of Appeals' decision in Brinegar was necessary to be faithful to Carroll. Brinegar, supra, at 178 ("Nor . . . can we find in the present facts any substantial basis for distinguishing this case from the Carroll case"). We likewise recognized the similarity of facts in United States v. Sokolow, supra, and Florida v. Royer, 460 U. S. 491 (1983) (in both cases, the defendant traveled under an assumed name; paid for an air- line ticket in cash with a number of small bills; traveled from Miami, a source city for illicit drugs; and appeared nervous in the airport). The same was true both in United States v. Ross, 456 U. S. 798 (1982), and California v. Acevedo, 500 U. S. 565 (1991), see id., at 572 ("The facts in this case closely resemble the facts in Ross"); and in United States v. Menden- hall, 446 U. S. 544 (1980), and Reid v. Georgia, 448 U. S. 438 (1980), see id., at 443 (Powell, J., concurring) ("facts [in Men- denhall] [are] remarkably similar to those in the present case"). And even where one case may not squarely control another one, the two decisions when viewed together may usefully add to the body of law on the subject. The Court of Appeals, in adopting its deferential standard of review here, reasoned that de novo review for warrantless searches would be inconsistent with the " `great deference' " paid when reviewing a decision to issue a warrant, see Illi- 517us3$56H 02-05-99 12:45:02 PAGES OPINPGT Cite as: 517 U. S. 690 (1996) 699 Opinion of the Court nois v. Gates, 462 U. S. 213 (1983). See United States v. Spears, 965 F. 2d 262, 269­271 (CA7 1992). We cannot agree. The Fourth Amendment demonstrates a "strong preference for searches conducted pursuant to a warrant," Gates, supra, at 236, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable- cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive. We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be re- viewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resi- dent judges and local law enforcement officers. A trial judge views the facts of a particular case in light of the distinctive features and events of the community; like- wise, a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen to- gether yield inferences that deserve deference. For exam- ple, what may not amount to reasonable suspicion at a motel located alongside a transcontinental highway at the height of the summer tourist season may rise to that level in De- cember in Milwaukee. That city is unlikely to have been an overnight stop selected at the last minute by a traveler coming from California to points east. The 85-mile width of Lake Michigan blocks any further eastward progress. And while the city's salubrious summer climate and seasonal at- tractions bring many tourists at that time of year, the same is not true in December. Milwaukee's average daily high temperature in that month is 31 degrees and its average daily low is 17 degrees; the percentage of possible sunshine is only 38 percent. It is a reasonable inference that a Cali- fornian stopping in Milwaukee in December is either there 517us3$56H 02-05-99 12:45:02 PAGES OPINPGT 700 ORNELAS v. UNITED STATES Scalia, J., dissenting to transact business or to visit family or friends. The back- ground facts, though rarely the subject of explicit findings, inform the judge's assessment of the historical facts. In a similar vein, our cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists. See, e. g., United States v. Ortiz, 422 U. S. 891, 897 (1975). To a layman the sort of loose panel below the back seat armrest in the auto- mobile involved in this case may suggest only wear and tear, but to Officer Luedke, who had searched roughly 2,000 cars for narcotics, it suggested that drugs may be secreted inside the panel. An appeals court should give due weight to a trial court's finding that the officer was credible and the inference was reasonable. We vacate the judgments and remand the case to the Court of Appeals to review de novo the District Court's determinations that the officer had reasonable suspicion and probable cause in this case. It is so ordered. Justice Scalia, dissenting. The Court today decides that a district court's determina- tions whether there was probable cause to justify a warrant- less search and reasonable suspicion to make an investiga- tory stop should be reviewed de novo. We have in the past reviewed some mixed questions of law and fact on a de novo basis, and others on a deferential basis, depending upon es- sentially practical considerations. Because, with respect to the questions at issue here, the purpose of the determination and its extremely fact-bound nature will cause de novo re- view to have relatively little benefit, it is in my view unwise to require courts of appeals to undertake the searching in- quiry that standard requires. I would affirm the judgment of the Court of Appeals. As the Court recognizes, determinations of probable cause and reasonable suspicion involve a two-step process. First, 517us3$56K 02-05-99 12:45:02 PAGES OPINPGT Cite as: 517 U. S. 690 (1996) 701 Scalia, J., dissenting a court must identify all of the relevant historical facts known to the officer at the time of the stop or search; and second, it must decide whether, under a standard of objective reasonableness, those facts would give rise to a reasonable suspicion justifying a stop or probable cause to search. See ante, at 696­697. Because this second step requires appli- cation of an objective legal standard to the facts, it is prop- erly characterized as a mixed question of law and fact. See ibid.; Pullman-Standard v. Swint, 456 U. S. 273, 289, n. 19 (1982). Merely labeling the issues "mixed questions," however, does not establish that they receive de novo review. While it is well settled that appellate courts "accep[t] findings of fact that are not `clearly erroneous' but decid[e] questions of law de novo," First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 948 (1995), there is no rigid rule with respect to mixed questions. We have said that "deferential review of mixed questions of law and fact is warranted when it appears that the district court is `better positioned' than the appel- late court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine." Salve Regina College v. Russell, 499 U. S. 225, 233 (1991) (citing Miller v. Fenton, 474 U. S. 104, 114 (1985)). These primary factors that counsel in favor of deferential review of some mixed questions of law and fact-expertise of the district court and lack of law-clarifying value in the appellate decision-are ordinarily present with respect to determinations of reasonable suspicion and probable cause. The factual details bearing upon those determinations are often numerous and (even when supported by uncontro- verted police testimony) subject to credibility determina- tions. An appellate court never has the benefit of the dis- trict court's intimate familiarity with the details of the case-nor the full benefit of its hearing of the live testimony, unless the district court makes specific findings on the "total- ity of the circumstances" bearing upon the stop or search. 517us3$56K 02-05-99 12:45:02 PAGES OPINPGT 702 ORNELAS v. UNITED STATES Scalia, J., dissenting As we recognized in Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990), a case holding that deferential (abuse- of-discretion) review should be applied to a district court's Federal Rule of Civil Procedure 11 determination that an attorney did not conduct a reasonable inquiry or entertain a "substantiated belief" regarding the nonfrivolousness of the complaint, see id., at 393: A district court, "[f]amiliar with the issues and litigants . . . is better situated than the court of appeals to marshal the pertinent facts and apply the fact- dependent legal standard . . . ." Id., at 402. Moreover, as the Court acknowledges, "reasonable suspi- cion" and "probable cause" are "commonsense, nontechnical conceptions that deal with ` "the factual and practical consid- erations of everyday life on which reasonable and prudent men, not legal technicians, act." ' " Ante, at 695 (quoting Illinois v. Gates, 462 U. S. 213, 231 (1983) (quoting Brinegar v. United States, 338 U. S. 160, 175 (1949))). Where a trial court makes such commonsense determinations based on the totality of circumstances, it is ordinarily accorded deference. What we said in a case concerning the question whether cer- tain payments were a "gift" excludable from income under the Internal Revenue Code is equally pertinent here. "Decision of the issue presented in these cases must be based ultimately on the application of the fact-finding tribunal's experience with the mainsprings of human conduct to the totality of the facts of each case. The nontechnical nature of the . . . standard, the close rela- tionship of it to the data of practical human experience, and the multiplicity of relevant factual elements, with their various combinations, creating the necessity of as- cribing the proper force to each, confirm us in our con- clusion that primary weight in this area must be given to the conclusions of the trier of fact." Commissioner v. Duberstein, 363 U. S. 278, 289 (1960). 517us3$56K 02-05-99 12:45:02 PAGES OPINPGT Cite as: 517 U. S. 690 (1996) 703 Scalia, J., dissenting With respect to the second factor counseling in favor of def- erential review, level of law-clarifying value in the appellate decision: Law clarification requires generalization, and some issues lend themselves to generalization much more than others. Thus, in Pierce v. Underwood, 487 U. S. 552, 562 (1988), a principal basis for our applying an abuse-of- discretion standard to a district court's determination that the United States' litigating position was "substantially justified" within the meaning of the Equal Access to Justice Act, 28 U. S. C. § 2412(d), was that the question was "a multi- farious and novel question, little susceptible, for the time being at least, of useful generalization." 487 U. S., at 562. Probable-cause and reasonable-suspicion determinations are similarly resistant to generalization. As the Court recog- nizes, these are "fluid concepts," " `not readily, or even use- fully, reduced to a neat set of legal rules' "; and "because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multifaceted, `one determination will seldom be a useful "precedent" for another.' " Ante, at 695­696, 698 (quoting Illinois v. Gates, supra, at 232, 238, n. 11). The Court maintains that there will be exceptions to this-that fact patterns will occasionally repeat them- selves, so that a prior de novo appellate decision will provide useful guidance in a similar case. Ante, at 698. I do not dispute that, but I do not understand why we should allow the exception to frame the rule. Here, as in Anderson v. Bessemer City, 470 U. S. 564, 574­575 (1985), "[d]uplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact deter- mination at a huge cost in diversion of judicial resources." The facts of this very case illustrate the futility of attempt- ing to craft useful precedent from the fact-intensive review demanded by determinations of probable cause and reason- able suspicion. On remand, in conducting de novo review, the Seventh Circuit might consider, inter alia, the following 517us3$56K 02-05-99 12:45:02 PAGES OPINPGT 704 ORNELAS v. UNITED STATES Scalia, J., dissenting factors relevant to its determination whether there was probable cause to conduct a warrantless search and reason- able suspicion justifying the investigatory stop: (i) the two NADDIS tips; (ii) that the car was a 1981 two-door General Motors product; (iii) that the car was from California, a source State; (iv) that the car was in Milwaukee; (v) that it was December; (vi) that one suspect checked into the hotel at 4 a.m.; (vii) that he did not have reservations; (viii) that he had one traveling companion; (ix) that one suspect ap- peared calm but shaking; and (x) that there was a loose panel in the car door. If the Seventh Circuit were to find that this unique confluence of factors supported probable cause and reasonable suspicion, the absence of any one of these factors in the next case would render the precedent inapplicable. Of course, even when all of the factors are replicated, use of a de novo standard as opposed to a deferential standard will provide greater clarity only where the latter would not suffice to set the trial court's conclusion aside. For where the appellate court holds, on the basis of deferential review, that it was reversible error for a district court to find proba- ble cause or reasonable suspicion in light of certain facts, it advances the clarity of the law just as much as if it had reversed the district court after conducting plenary review. In the present case, an additional factor counseling against de novo review must be mentioned: The prime benefit of de novo appellate review in criminal cases is, of course, to prevent a miscarriage of justice that might result from per- mitting the verdict of guilty to rest upon the legal determi- nations of a single judge. But the issue in these probable- cause and reasonable-suspicion cases is not innocence but deterrence of unlawful police conduct. That deterrence will not be at all lessened if the trial judge's determination, right or wrong, is subjected to only deferential review. The Court is wrong in its assertion, ante, at 698­699, that unless there is a dual standard of review-deferential review of a magistrate's decision to issue a warrant, and de novo 517us3$56K 02-05-99 12:45:02 PAGES OPINPGT Cite as: 517 U. S. 690 (1996) 705 Scalia, J., dissenting review of a district court's ex post facto approval of a war- rantless search-the incentive to obtain a warrant would be eliminated. In United States v. Leon, 468 U. S. 897, 913 (1984), we held that "reliable physical evidence seized by of- ficers reasonably relying on a warrant issued by a detached and neutral magistrate . . . should be admissible in the prose- cutor's case in chief." Only a warrant can provide this as- surance that the fruits of even a technically improper search will be admissible. Law enforcement officers would still have ample incentive to proceed by warrant. Finally, I must observe that the Court does not appear to have the courage of its conclusions. In an apparent effort to reduce the unproductive burden today's decision imposes upon appellate courts, or perhaps to salvage some of the trial court's superior familiarity with the facts that it has cast aside, the Court suggests that an appellate court should give "due weight" to a trial court's finding that an officer's inference of wrongdoing (i. e., his assessment of probable cause to search) was reasonable. Ante, at 700. The Court cannot have it both ways. This finding of "reasonableness" is precisely what it has told us the appellate court must review de novo; and in de novo review, the "weight due" to a trial court's finding is zero. In the last analysis, there- fore, the Court's opinion seems to me not only wrong but contradictory. * * * I would affirm the judgment of the Seventh Circuit on the ground that it correctly applied a deferential standard of review to the District Court's findings of probable cause and reasonable suspicion. 517us3$57Z 02-19-99 11:05:49 PAGES OPINPGT 706 OCTOBER TERM, 1995 Syllabus QUACKENBUSH, CALIFORNIA INSURANCE COMMISSIONER v. ALLSTATE INSURANCE CO. certiorari to the united states court of appeals for the ninth circuit No. 95­244. Argued February 20, 1996-Decided June 3, 1996 Petitioner California Insurance Commissioner, as trustee over the assets of the Mission Insurance Company and its affiliates, filed a state court action against respondent Allstate Insurance Company, seeking, among other things, contract and tort damages for Allstate's alleged breach of reinsurance agreements. Allstate removed the action to federal court on diversity grounds and filed a motion to compel arbitration under the Federal Arbitration Act. The Commissioner sought remand to state court, arguing that the District Court should abstain from hearing the case under Burford v. Sun Oil Co., 319 U. S. 315, because its resolution might interfere with California's regulation of the Mission insolvency. Specifically, the Commissioner indicated that the issue whether Allstate could set off its own contract claims against the Commissioner's recov- ery was a question of state law currently pending before the state courts in another Mission insolvency case. Observing that the State's overrid- ing interest in the uniform and orderly regulation of insurance insolven- cies and liquidations could be undermined by inconsistent rulings from the federal and state courts, and determining that the setoff question should be resolved in state court, the District Court concluded that Bur- ford abstention was appropriate and remanded the case to state court without ruling on Allstate's arbitration motion. After determining that appellate review of the District Court's remand order was not barred by 28 U. S. C. § 1447(d), and that the remand order was appealable under 28 U. S. C. § 1291 as a final collateral order, the Ninth Circuit vacated the decision and ordered the case sent to arbitration. Concluding that Burford abstention is limited to equitable actions, the court held that abstention was inappropriate in this damages action. Held:1. An abstention-based remand order is appealable under 28 U. S. C. § 1291. Section 1447(d)-which provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise"-interposes no bar to appellate review of the order at issue. Only remands based on grounds specified in § 1447(c) are im- mune from review under § 1447(d), and the District Court's order in this 517us3$57Z 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 707 Syllabus case does not fall into either category of remand order described in § 1447(c): It is not based on lack of subject matter jurisdiction or defects in removal procedure. The remand order here falls within that narrow class of collateral orders that are immediately appealable under § 1291. It puts the litigants in this case effectively out of court, and its effect is precisely to surrender jurisdiction of a federal suit to a state court. Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 11, n. 11. The order also conclusively determines an issue that is separate from the merits, namely, the question whether the federal court should decline to exercise its jurisdiction in the interest of comity and federalism; the rights asserted on appeal from the abstention deci- sion are sufficiently important to warrant an immediate appeal; and the remand order will not be subsumed in any other appealable order en- tered by the District Court. See Moses H. Cone, supra. The decision in Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, 352­353, that "an order remanding a removed action does not represent a final judgment reviewable by appeal," is disavowed to the extent it would require this Court to ignore the implications of the later holding in Moses H. Cone. Pp. 711­715. 2. Federal courts have the power to dismiss or remand cases based on abstention principles only where the relief sought is equitable or otherwise discretionary. Because this was a damages action, the Dis- trict Court's remand order was an unwarranted application of the Bur- ford doctrine. Pp. 716­731. (a) In cases where the relief sought is equitable in nature or other- wise discretionary, federal courts not only have the power to stay the action based on abstention principles, but can also, in otherwise appro- priate circumstances, decline to exercise jurisdiction altogether by either dismissing the suit or remanding it to state court. See, e. g., Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293, 297. By contrast, federal courts may stay actions for damages based on absten- tion principles, but those principles do not support the outright dis- missal or remand of damages actions. See, e. g., Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25, 28. Pp. 716­723. (b) Burford allows a federal court to dismiss a case only if it pre- sents "difficult questions of state law bearing on policy problems of sub- stantial public import whose importance transcends the result in the case then at bar," or if its adjudication in a federal forum "would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Colorado River Water Conser- vation Dist. v. United States, 424 U. S. 800, 814. This power to dismiss represents an extraordinary and narrow exception to a district court's duty to adjudicate a controversy properly before it. Pp. 723­728. 517us3$57Z 02-19-99 11:05:49 PAGES OPINPGT 708 QUACKENBUSH v. ALLSTATE INS. CO. Syllabus (c) Applying Burford to this case, the federal interests are pro- nounced, as Allstate's motion to compel arbitration under the Federal Arbitration Act implicates a substantial federal concern for the enforce- ment of arbitration agreements. With regard to the state interests, the case appears at first blush to present nothing more than a run- of-the-mill contract dispute: The Commissioner seeks damages for All- state's failure to perform its obligations under a reinsurance agree- ment. Pp. 728­730. (d) To the extent the Ninth Circuit held only that a federal court cannot, under Burford, dismiss or remand an action when the relief sought is not discretionary, its judgment is consistent with this Court's abstention cases. The Commissioner appears to have conceded that the relief sought is neither equitable nor otherwise committed to the court's discretion. However, by limiting Burford abstention to equitable cases, the court applied a per se rule more rigid than this Court's precedents require. Since abstention principles are not completely inapplicable in damages actions, Burford might have supported an order to stay the federal proceedings pending the outcome of the state court litigation on the setoff issue. Only the remand order which the Ninth Circuit en- tered is being reviewed, and, thus, it is not necessary to determine whether a more limited abstention-based stay order would have been warranted on the facts of this case. Pp. 730­731. 47 F. 3d 350, affirmed. O'Connor, J., delivered the opinion for a unanimous Court. Scalia, J., post, p. 731, and Kennedy, J., post, p. 733, filed concurring opinions. Karl L. Rubinstein argued the cause for petitioner. With him on the briefs were Dana Carli Brooks, Melissa S. Koo- istra, William W. Palmer, and David L. Shapiro. Donald Francis Donovan argued the cause for respond- ent. With him on the brief were Carl Micarelli, Joseph D. Lee, and James G. Sporleder.* *Richard Ruda and James I. Crowley filed a brief for the Council of State Governments et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Common- wealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, and Thomas W. Rynard; for the National Association of Independent Insurers et al. by Charles Platto and Phillip Stano; and for the Reinsurance Association of America et al. by Maureen E. Mahoney. 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 709 Opinion of the Court Justice O'Connor delivered the opinion of the Court. In this case, we consider whether an abstention-based re- mand order is appealable as a final order under 28 U. S. C. § 1291, and whether the abstention doctrine first recognized in Burford v. Sun Oil Co., 319 U. S. 315 (1943), can be applied in a common-law suit for damages. I Petitioner, the Insurance Commissioner for the State of California, was appointed trustee over the assets of the Mis- sion Insurance Company and its affiliates (Mission compa- nies) in 1987, after those companies were ordered into liqui- dation by a California court. In an effort to gather the assets of the defunct Mission companies, the Commissioner filed the instant action against respondent Allstate Insurance Company in state court, seeking contract and tort damages for Allstate's alleged breach of certain reinsurance agree- ments, as well as a general declaration of Allstate's obliga- tions under those agreements. Allstate removed the action to federal court on diversity grounds and filed a motion to compel arbitration under the Federal Arbitration Act, 9 U. S. C. § 1 et seq. (1988 ed. and Supp. V). The Commissioner sought remand to state court, arguing that the District Court should abstain from hearing the case under Burford, supra, because its resolution might interfere with California's regulation of the Mission insol- vency. Specifically, the Commissioner indicated that All- state would be asserting its right to set off its own contract claims against the Commissioner's recovery under the con- tract, that the viability of these setoff claims was a hotly disputed question of state law, and that this question was currently pending before the state courts in another case arising out of the Mission insolvency. The District Court observed that "California has an over- riding interest in regulating insurance insolvencies and liqui- dations in a uniform and orderly manner," and that in this 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 710 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court case "this important state interest could be undermined by inconsistent rulings from the federal and state courts." App. to Pet. for Cert. 34a. Based on these observations, and its determination that the setoff question should be resolved in state court, the District Court concluded this case was an appropriate one for the exercise of Burford abstention. The District Court did not stay its hand pending the California courts' resolution of the setoff issue, but instead remanded the entire case to state court. The District Court entered this remand order without ruling on Allstate's motion to compel arbitration. After determining that appellate review of the District Court's remand order was not barred by 28 U. S. C. § 1447(d), see Garamendi v. Allstate Ins. Co., 47 F. 3d 350, 352 (CA9 1995) (citing Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336 (1976)), and that the remand order was appeal- able under 28 U. S. C. § 1291 as a final collateral order, see 47 F. 3d, at 353­354 (citing Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1 (1983)), the Court of Appeals for the Ninth Circuit vacated the District Court's decision and ordered the case sent to arbitration. The Ninth Circuit concluded that federal courts can abstain from hearing a case under Burford only when the relief being sought is equitable in nature, and therefore held that absten- tion was inappropriate in this case because the Commis- sioner purported to be seeking only legal relief. 47 F. 3d, at 354­356; App. to Pet. for Cert. 35a­37a (order denying petition for rehearing because Commissioner had waived any argument that this case involved a request for equitable relief). The Ninth Circuit's holding that abstention-based remand orders are appealable conflicts with the decisions of other Courts of Appeals, see Doughty v. Underwriters at Lloyd's, London, 6 F. 3d 856, 865 (CA1 1993) (order not appealable); Corcoran v. Ardra Insurance Co., Ltd., 842 F. 2d 31, 34 (CA2 1988) (same); In re Burns & Wilcox, Ltd., 54 F. 3d 475, 477, 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 711 Opinion of the Court n. 7 (CA8 1995) (same); but see Minot v. Eckardt-Minot, 13 F. 3d 590, 593 (CA2 1994) (order appealable under collateral order doctrine), as does its determination that Burford ab- stention can only be exercised in cases in which equitable relief is sought, see Lac D'Amiante du Quebec, Ltee v. Amer- ican Home Assurance Co., 864 F. 2d 1033, 1045 (CA3 1988) (Burford abstention appropriate in case seeking declaratory relief); Brandenburg v. Seidel, 859 F. 2d 1179, 1192, n. 17 (CA4 1988) (Burford abstention appropriate in action for damages); Wolfson v. Mutual Benefit Life Ins. Co., 51 F. 3d 141, 147 (CA8 1995) (same); but see Fragoso v. Lopez, 991 F. 2d 878, 882 (CA1 1993) (federal court can abstain under Burford only if it is "sitting in equity"); University of Maryland v. Peat Marwick Main & Co., 923 F. 2d 265, 272 (CA3 1991) (same); Baltimore Bank for Cooperatives v. Farmer's Cheese Cooperative, 583 F. 2d 104, 111 (CA3 1978) (same). We granted certiorari to resolve these conflicts, 516 U. S. 929 (1995), and now affirm on grounds different from those provided by the Ninth Circuit. II We first consider whether the Court of Appeals had juris- diction to hear Allstate's appeal under 28 U. S. C. § 1291, which confers jurisdiction over appeals from "final decisions" of the district courts, and 28 U. S. C. § 1447(d), which pro- vides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." We agree with the Ninth Circuit and the parties that § 1447(d) interposes no bar to appellate review of the remand order at issue in this case. See 47 F. 3d, at 352; Brief for Petitioner 29­30; Brief for Respondent 13­14, n. 12. As we held in Thermtron Products, Inc. v. Hermansdorfer, supra, at 345­346, and reiterated this Term in Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127 (1995), "§ 1447(d) must be read in pari materia with § 1447(c), so 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 712 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court that only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d)." This gloss renders § 1447(d) inapplicable here: The District Court's abstention- based remand order does not fall into either category of re- mand order described in § 1447(c), as it is not based on lack of subject matter jurisdiction or defects in removal procedure. Finding no affirmative bar to appellate review of the Dis- trict Court's remand order, we must determine whether that review may be obtained by appeal under § 1291. The gen- eral rule is that "a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated." Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 868 (1994) (citations omitted). Accordingly, we have held that a decision is ordinarily con- sidered final and appealable under § 1291 only if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U. S. 229, 233 (1945); see also Digital, supra, at 867 (quoting this standard). We have also recognized, however, a narrow class of collateral orders which do not meet this definition of finality, but which are nevertheless immediately appealable under § 1291 because they " `conclusively determine [a] dis- puted question' " that is " `completely separate from the mer- its of the action,' " " `effectively unreviewable on appeal from a final judgment,' " Richardson-Merrell Inc. v. Koller, 472 U. S. 424, 431 (1985) (quoting Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978)), and "too important to be denied review," Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949). The application of these principles to the appealability of the remand order before us is controlled by our decision in Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., supra. The District Court in that case entered an order under Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 (1976), staying a federal diversity suit 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 713 Opinion of the Court pending the completion of a declaratory judgment action that had been filed in state court. The Court of Appeals held that this stay order was appealable under § 1291, and we affirmed that determination on two independent grounds. We first concluded that the abstention-based stay order was appealable as a "final decision" under § 1291 because it put the litigants " `effectively out of court,' " 460 U. S., at 11, n. 11 (quoting Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S. 713, 715, n. 2 (1962) (per curiam)), and because its effect was "precisely to surrender jurisdiction of a federal suit to a state court," 460 U. S., at 11, n. 11. These stand- ards do not reflect our oft-repeated definition of finality, see supra, at 712 (citing Catlin, supra, at 233); see, e. g., Digital, supra, at 867 (citing the Catlin definition); Lauro Lines s.r.l. v. Chasser, 490 U. S. 495, 497 (1989) (same); Van Cauwen- berghe v. Biard, 486 U. S. 517, 521­522 (1988) (same), but in Moses H. Cone we found their application to be compelled by precedent, see 460 U. S., at 11, n. 11 ("Idlewild's reasoning is limited to cases where (under Colorado River, abstention, or a closely similar doctrine) the object of the stay is to re- quire all or an essential part of the federal suit to be litigated in a state forum"). As an alternative to this reliance on Idlewild, we also held that the stay order at issue in Moses H. Cone was appealable under the collateral order doctrine. 460 U. S., at 11. We determined that a stay order based on the Colorado River doctrine "presents an important issue separate from the merits" because it "amounts to a refusal to adjudicate" the case in federal court; that such orders could not be reviewed on appeal from a final judgment in the federal action because the district court would be bound, as a matter of res judicata, to honor the state court's judgment; and that unlike other stay orders, which might readily be reconsidered by the district court, abstention-based stay orders of this ilk are "conclusive" because they are the practical equivalent of an order dismissing the case. 460 U. S., at 12. 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 714 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court The District Court's order remanding on grounds of Bur- ford abstention is in all relevant respects indistinguishable from the stay order we found to be appealable in Moses H. Cone. No less than an order staying a federal court action pending adjudication of the dispute in state court, it puts the litigants in this case " `effectively out of court,' " Moses H. Cone, supra, at 11, n. 11 (quoting Idlewild Bon Voyage Liquor Corp. v. Epstein, supra, at 715, n. 2), and its effect is "precisely to surrender jurisdiction of a federal suit to a state court," 460 U. S., at 11, n. 11. Indeed, the remand order is clearly more "final" than a stay order in this sense. When a district court remands a case to a state court, the district court disassociates itself from the case entirely, retaining nothing of the matter on the federal court's docket. The District Court's order is also indistinguishable from the stay order we considered in Moses H. Cone in that it conclusively determines an issue that is separate from the merits, namely, the question whether the federal court should decline to exercise its jurisdiction in the interest of comity and federalism. See infra, at 716­717, 727­728. In addition, the rights asserted on appeal from the District Court's abstention decision are, in our view, sufficiently im- portant to warrant an immediate appeal. See infra, at 716, 723­728 (describing interests weighed in decision to abstain under Burford); cf. Digital, 511 U. S., at 878 (review under collateral order doctrine limited to those issues " `too impor- tant to be denied review' ") (quoting Cohen, supra, at 546). And, like the stay order we found appealable in Moses H. Cone, the District Court's remand order in this case will not be subsumed in any other appealable order entered by the District Court. We have previously stated that "an order remanding a re- moved action does not represent a final judgment reviewable by appeal." Thermtron Products, Inc. v. Hermansdorfer, 423 U. S., at 352­353. Petitioner asks that we adhere to that statement and hold that appellate review of the District 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 715 Opinion of the Court Court's remand order can only be obtained through a petition for writ of mandamus. To the extent Thermtron would require us to ignore the implications of our later holding in Moses H. Cone, however, we disavow it. Thermtron's determination that remand orders are not reviewable "final judgments" doubtless was necessary to the resolution of that case, see 423 U. S., at 352 (posing the question whether mandamus was the appropriate vehicle), but our principal concern in Thermtron was the interpretation of the bar to appellate review embodied in 28 U. S. C. § 1447(d), see supra, at 711­712, and our statement concerning the appropriate procedural vehicle for reviewing a district court's remand order was peripheral to that concern. Moreover, the parties in Thermtron did not brief the question, our opinion does not refer to Catlin or its definition of "final decisions," and our opinion nowhere addresses whether any class of remand order might be appealable under the collateral order doc- trine. Indeed, the only support Thermtron cites for the proposition that remand orders are reviewable only by man- damus, not by appeal, is Railroad Co. v. Wiswall, 23 Wall. 507 (1875), the superannuated reasoning of which is of little vitality today, compare id., at 508 (deeming a "writ of error to review what has been done" an inappropriate vehicle for reviewing a court of appeals' "refusal to hear and decide"), with Moses H. Cone, 460 U. S., at 10­11, n. 11 (holding that a stay order is appealable because it amounts to a refusal to hear and decide a case). Admittedly, remand orders like the one entered in this case do not meet the traditional definition of finality-they do not "en[d] the litigation on the merits and leav[e] nothing for the court to do but execute the judgment," Catlin, 324 U. S., at 233. But because the District Court's remand order is functionally indistinguishable from the stay order we found appealable in Moses H. Cone, see supra, at 714, we conclude that it is appealable, and turn to the merits of the Ninth Circuit's decision respecting Burford abstention. 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 716 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court III A We have often acknowledged that federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress. See, e. g., Colorado River, 424 U. S., at 821 ("[F]ederal courts have a `virtually unflagging obligation . . . to exercise the jurisdiction given them' "); England v. Louisiana Bd. of Medical Examiners, 375 U. S. 411, 415 (1964) (" `When a federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction' ") (quoting Willcox v. Consolidated Gas Co., 212 U. S. 19, 40 (1909)); Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (federal courts "have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not"). This duty is not, however, absolute. See Canada Malting Co. v. Paterson S. S., Ltd., 285 U. S. 413, 422 (1932) ("[T]he proposition that a court having juris- diction must exercise it, is not universally true"). Indeed, we have held that federal courts may decline to exercise their jurisdiction, in otherwise " `exceptional circum- stances,' " where denying a federal forum would clearly serve an important countervailing interest, Colorado River, supra, at 813 (quoting County of Allegheny v. Frank Ma- shuda Co., 360 U. S. 185, 189 (1959)), for example, where ab- stention is warranted by considerations of "proper constitu- tional adjudication," "regard for federal-state relations," or "wise judicial administration," Colorado River, supra, at 817 (internal quotation marks omitted). We have thus held that federal courts have the power to refrain from hearing cases that would interfere with a pend- ing state criminal proceeding, see Younger v. Harris, 401 U. S. 37 (1971), or with certain types of state civil proceed- ings, see Huffman v. Pursue, Ltd., 420 U. S. 592 (1975); Juidice v. Vail, 430 U. S. 327 (1977); cases in which the reso- lution of a federal constitutional question might be obviated 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 717 Opinion of the Court if the state courts were given the opportunity to interpret ambiguous state law, see Railroad Comm'n of Tex. v. Pull- man Co., 312 U. S. 496 (1941); cases raising issues "intimately involved with [the States'] sovereign prerogative," the proper adjudication of which might be impaired by unsettled questions of state law, see Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25, 28 (1959); id., at 31 (Stewart, J., concurring); cases whose resolution by a federal court might unnecessarily interfere with a state system for the collection of taxes, see Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 (1943); and cases which are duplica- tive of a pending state proceeding, see Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 (1976); Pennsylvania v. Williams, 294 U. S. 176 (1935). Our longstanding application of these doctrines reflects "the common-law background against which the statutes conferring jurisdiction were enacted," New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 359 (1989) (NOPSI) (citing Shapiro, Jurisdiction and Dis- cretion, 60 N. Y. U. L. Rev. 543, 570­577 (1985)). And, as the Ninth Circuit correctly indicated, 47 F. 3d, at 354, it has long been established that a federal court has the authority to decline to exercise its jurisdiction when it "is asked to employ its historic powers as a court of equity," Fair Assess- ment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100, 120 (1981) (Brennan, J., concurring). This tradition informs our understanding of the jurisdiction Congress has conferred upon the federal courts, and explains the development of our abstention doctrines. In Pullman, for example, we explained the principle underlying our abstention doctrines as follows: ". . . The history of equity jurisdiction is the history of regard for public consequences in employing the ex- traordinary remedy of the injunction. . . . Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 718 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court with state policies, whether the policy relates to the en- forcement of the criminal law, or the administration of a specialized scheme for liquidating embarrassed business enterprises, or the final authority of a state court to interpret doubtful regulatory laws of the state. These cases reflect a doctrine of abstention appropriate to our federal system, whereby the federal courts, `exercising a wise discretion,' restrain their authority because of `scrupulous regard for the rightful independence of the state governments' and for the smooth working of the federal judiciary. This use of equitable powers is a contribution of the courts in furthering the harmonious relation between state and federal authority without the need of rigorous congressional restriction of those powers." 312 U. S., at 500­501 (citations omitted). Though we have thus located the power to abstain in the historic discretion exercised by federal courts "sitting in equity," we have not treated abstention as a "technical rule of equity procedure." Thibodaux, supra, at 28. Rather, we have recognized that the authority of a federal court to ab- stain from exercising its jurisdiction extends to all cases in which the court has discretion to grant or deny relief. See NOPSI, supra, at 359 (mandate of federal jurisdiction "does not eliminate . . . the federal courts' discretion in determin- ing whether to grant certain types of relief"). Accordingly, we have not limited the application of the abstention doc- trines to suits for injunctive relief, but have also required federal courts to decline to exercise jurisdiction over certain classes of declaratory judgments, see, e. g., Huffman, 319 U. S., at 297 (federal court must abstain from hearing declar- atory judgment action challenging constitutionality of a state tax); Samuels v. Mackell, 401 U. S. 66, 69­70, 72­73 (1971) (extending Younger abstention to declaratory judg- ment actions), the granting of which is generally committed to the courts' discretion, see Wilton v. Seven Falls Co., 515 U. S. 277, 282 (1995) (federal courts have "discretion in 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 719 Opinion of the Court determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites"). Nevertheless, we have not previously addressed whether the principles underlying our abstention cases would support the remand or dismissal of a common-law action for damages. Cf. Deakins v. Monaghan, 484 U. S. 193, 202, and n. 6 (1988) (reserving the question whether Younger requires absten- tion in an action for damages); Ankenbrandt v. Richards, 504 U. S. 689 (1992) (discussing, without applying, Burford ab- stention in damages action). To be sure, we held in Fair Assessment in Real Estate Assn., Inc. v. McNary, supra, that a federal court should not entertain a 42 U. S. C. § 1983 suit for damages based on the enforcement of a state tax scheme, see 454 U. S., at 115, but we have subsequently indi- cated that Fair Assessment was a case about the scope of the § 1983 cause of action, see National Private Truck Coun- cil, Inc. v. Oklahoma Tax Comm'n, 515 U. S. 582, 589­590 (1995), not the abstention doctrines. To the extent Fair As- sessment does apply abstention principles, its holding is very limited. The damages action in that case was based on the unconstitutional application of a state tax law, and the award of damages turned first on a declaration that the state tax was in fact unconstitutional. We therefore drew an analogy to Huffman and other cases in which we had approved the application of abstention principles in declaratory judgment actions, and held that the federal court should decline to hear the action because "[t]he recovery of damages under the Civil Rights Act first requires a `declaration' or determination of the unconstitutionality of a state tax scheme that would halt its operation." Fair Assessment, supra, at 115. Otherwise, we have applied abstention principles to ac- tions "at law" only to permit a federal court to enter a stay order that postpones adjudication of the dispute, not to dismiss the federal suit altogether. See, e. g., Thibodaux, supra, at 28­30 (approving stay order); Fornaris v. Ridge 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 720 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court Tool Co., 400 U. S. 41, 44 (1970) (per curiam) (directing Dis- trict Court to "hold its hand until the Puerto Rican Supreme Court has authoritatively ruled on the local law question in light of the federal claims" (footnote omitted)) (emphasis added); United Gas Pipe Line Co. v. Ideal Cement Co., 369 U. S. 134, 135­136 (1962) (per curiam) ("Wise judicial admin- istration in this case counsels that decision of the federal question be deferred until the potentially controlling state- law issue is authoritatively put to rest"); Clay v. Sun Ins. Office Ltd., 363 U. S. 207, 212 (1960) (approving "postpone- ment of decision" in damages suit). Our decisions in Thibodaux and County of Allegheny v. Frank Mashuda Co., 360 U. S. 185 (1959), illustrate the dis- tinction we have drawn between abstention-based remand orders or dismissals and abstention-based decisions merely to stay adjudication of a federal suit. In Thibodaux, a city in Louisiana brought an eminent domain proceeding in state court, seeking to condemn for public use certain property owned by a Florida corporation. After the corporation re- moved the action to federal court on diversity grounds, the Federal District Court decided on its own motion to stay the case, pending a state court's determination whether the city could exercise the power of eminent domain under state law. The case did not arise within the "equity" jurisdiction of the federal courts, 360 U. S., at 28, because the suit sought com- pensation for a taking, and the District Court lacked discre- tion to deny relief on the corporation's claim. Nonetheless, the issues in the suit were "intimately involved with [the State's] sovereign prerogative." Ibid. We concluded that "[t]he considerations that prevailed in conventional equity suits for avoiding the hazards of serious disruption by fed- eral courts of state government or needless friction between state and federal authorities are similarly appropriate in a state eminent domain proceeding brought in, or removed to, a federal court." Ibid. And based on that conclusion, we affirmed the District Court's order staying the case. 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 721 Opinion of the Court County of Allegheny was decided the same day as Thib- odaux, and like Thibodaux it involved review of a District Court order abstaining from the exercise of diversity juris- diction over a state law eminent domain action. Unlike in Thibodaux, however, the District Court in County of Alle- gheny had not merely stayed adjudication of the federal ac- tion pending the resolution of an issue in state court, but rather had dismissed the federal action altogether. Based in large measure on this distinction, we reversed the District Court's order. See 360 U. S., at 190; Thibodaux, 360 U. S., at 31 (Stewart, J., concurring) ("In Mashuda, the Court holds that it was error for the District Court to dismiss the com- plaint" (emphasis added)). We were careful to note in Thibodaux that the District Court had only stayed the federal suit pending adjudication of the dispute in state court. Unlike the outright dismissal or remand of a federal suit, we held, an order merely staying the action "does not constitute abnegation of judicial duty. On the contrary, it is a wise and productive discharge of it. There is only postponement of decision for its best fruition." Id., at 29. We have thus held that in cases where the relief being sought is equitable in nature or otherwise discretion- ary, federal courts not only have the power to stay the action based on abstention principles, but can also, in otherwise ap- propriate circumstances, decline to exercise jurisdiction alto- gether by either dismissing the suit or remanding it to state court. By contrast, while we have held that federal courts may stay actions for damages based on abstention principles, we have not held that those principles support the outright dismissal or remand of damages actions. One final line of cases bears mentioning. Though we deal here with our abstention doctrines, we have recognized that federal courts have discretion to dismiss damages actions, in certain narrow circumstances, under the common-law doc- trine of forum non conveniens. The seminal case recogniz- ing this authority is Gulf Oil Corp. v. Gilbert, 330 U. S. 501 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 722 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court (1947), in which we considered whether a Federal District Court sitting in diversity in New York could dismiss a tort action for damages on the grounds that Virginia provided a more appropriate locale for adjudicating the dispute. Id., at 503. We conceded that the application of this doctrine should be "rare," id., at 509, but also held that the exercise of forum non conveniens is not limited to actions in equity: "This Court[,] in recognizing and approving it by name has never indicated that it was rejecting application of the doctrine to law actions which had been an integral and necessary part of [the] evolution of the doctrine. Wherever it is applied in courts in other jurisdictions, its application does not depend on whether the action is at law or in equity." Id., at 505, n. 4 (citations omitted). The dispute in Gulf Oil was over venue, not jurisdiction, and the expectation was that after dismissal of the suit in New York the parties would refile in federal court, not the state courts of Virginia. This transfer of venue function of the forum non conveniens doctrine has been superseded by statute, see 28 U. S. C. § 1404(a); Piper Aircraft Co. v. Reyno, 454 U. S. 235, 253 (1981), and to the extent we have continued to recognize that federal courts have the power to dismiss damages actions under the common-law forum non conve- niens doctrine, we have done so only in "cases where the alternative forum is abroad." American Dredging Co. v. Miller, 510 U. S. 443, 449, n. 2 (1994); see, e. g., Piper, supra, at 265­269 (dismissal of wrongful death action). The fact that we have applied the forum non conveniens doctrine in this manner does not change our analysis in this case, where we deal with the scope of the Burford abstention doctrine. To be sure, the abstention doctrines and the doc- trine of forum non conveniens proceed from a similar prem- ise: In rare circumstances, federal courts can relinquish their jurisdiction in favor of another forum. But our abstention doctrine is of a distinct historical pedigree, and the tradi- 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 723 Opinion of the Court tional considerations behind dismissal for forum non con- veniens differ markedly from those informing the decision to abstain. Compare American Dredging, supra, at 448­449 (describing "multifarious factors," including both public and private interests, which might allow a district court to dis- miss a case under doctrine of forum non conveniens), with Burford, 319 U. S., at 332­333 (describing "federal-state con- flict" that requires a federal court to yield jurisdiction in favor of a state forum). Federal courts abstain out of def- erence to the paramount interests of another sovereign, and the concern is with principles of comity and federalism. See, e. g., ibid.; Younger, 401 U. S., at 44­45. Dismissal for forum non conveniens, by contrast, has historically reflected a far broader range of considerations, see Piper, supra, at 241, 257­262 (describing the interests which bear on forum non conveniens decision); Gulf Oil, supra, at 508­509 (same), most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality, see Piper, supra, at 257­259 (evidentiary problems, unavailability of witnesses, difficulty of coordinating multiple suits); Gulf Oil, supra, at 511 (availability of witnesses, need to interplead Virginia corpo- ration, location of evidence). B With these background principles in mind, we consider the contours of the Burford doctrine. The principal issue pre- sented in Burford was the "reasonableness" of an order is- sued by the Texas Railroad Commission, which granted "a permit to drill four oil wells on a small plot of land in the East Texas oil field." 319 U. S., at 317. Due to the poten- tially overlapping claims of the many parties who might have an interest in a common pool of oil and the need for uniform regulation of the oil industry, Texas endowed the Railroad Commission with exclusive regulatory authority in the area. Texas also placed the authority to review the Commission's 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 724 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court orders in a single set of state courts, "[t]o prevent the confu- sion of multiple review," id., at 326, and to permit an experi- enced cadre of state judges to obtain "specialized knowledge" in the field, id., at 327. Though Texas had thus demon- strated its interest in maintaining uniform review of the Commission's orders, the federal courts had, in the years preceding Burford, become increasingly involved in review- ing the reasonableness of the Commission's orders, both under a constitutional standard imposed under the Due Proc- ess Clause, see, e. g., Railroad Comm'n of Tex. v. Rowan & Nichols Oil Co., 310 U. S. 573, 577 (1940), and under state law, which established a similar standard, see Burford, 319 U. S., at 317, 326. Viewing the case as "a simple proceeding in equity to enjoin the enforcement of the Commissioner's order," id., at 317, we framed the question presented in terms of the power of a federal court of equity to abstain from exercising its jurisdiction: "Although a federal equity court does have jurisdic- tion of a particular proceeding, it may, in its sound dis- cretion, whether its jurisdiction is invoked on the ground of diversity of citizenship or otherwise, `refuse to enforce or protect legal rights, the exercise of which may be prejudicial to the public interest,' for it `is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy.' While many other questions are argued, we find it necessary to decide only one: As- suming that the federal district court had jurisdiction, should it, as a matter of sound equitable discretion, have declined to exercise that jurisdiction here?" Id., at 317­ 318 (footnote omitted) (quoting United States ex rel. Greathouse v. Dern, 289 U. S. 352, 360 (1933), and Penn- sylvania v. Williams, 294 U. S., at 185). 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 725 Opinion of the Court Having thus posed the question in terms of the District Court's discretion, as a court sitting "in equity," to decline jurisdiction, we approved the District Court's dismissal of the complaint on a number of grounds that were unique to that case. We noted, for instance, the difficulty of the regu- latory issues presented, stating that the "order under consid- eration is part of the general regulatory system devised for the conservation of oil and gas in Texas, an aspect of `as thorny a problem as has challenged the ingenuity and wis- dom of legislatures.' " 319 U. S., at 318 (quoting Rowan, supra, at 579). We also stressed the demonstrated need for uniform regulation in the area, 319 U. S., at 318­319, citing the unified procedures Texas had established to "prevent the confusion of multiple review," id., at 325­326, and the impor- tant state interests this uniform system of review was de- signed to serve, id., at 319­320. Most importantly, we also described the detrimental impact of ongoing federal court review of the Commission's orders, which review had already led to contradictory adjudications by the state and federal courts. Id., at 327­328, 331­332. We ultimately concluded in Burford that dismissal was ap- propriate because the availability of an alternative, federal forum threatened to frustrate the purpose of the complex administrative system that Texas had established. See id., at 332 ("The whole cycle of federal-state conflict cannot be permitted to begin again"). We have since provided more generalized descriptions of the Burford doctrine, see, e. g., County of Allegheny, 360 U. S., at 189 ("abstention on grounds of comity with the States where the exercise of ju- risdiction by the federal court would disrupt a state adminis- trative process"); Colorado River, 424 U. S., at 814­816 (abstention where "exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern"), but with the exception of cases that rest only loosely on the Burford rationale, e. g., 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 726 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25 (1959), we have revisited the decision only infrequently in the intervening 50 years. See NOPSI, 491 U. S. 350 (1989). In NOPSI, our most recent exposition of the Burford doc- trine, we again located the power to dismiss based on absten- tion principles in the discretionary power of a federal court sitting in equity, and we again illustrated the narrow range of circumstances in which Burford can justify the dismissal of a federal action. The issue in NOPSI was pre-emption. A New Orleans utility that had been saddled by a decision of the Federal Energy Regulatory Commission (FERC) with part of the cost of building and operating a nuclear reactor sought approval of a rate increase from the Council of the City of New Orleans. The council denied the rate increase on the grounds that "a public hearing was necessary to ex- plore `the legality and prudency' [sic]" of the expenses allo- cated to the utility under the FERC decision, 491 U. S., at 355, and the utility brought suit in federal court, seeking an injunction against enforcement of the council's order and a declaration that the utility was entitled to a rate increase. The utility claimed that "federal law required the Council to allow it to recover, through an increase in retail rates, its FERC-allocated share of the [cost of the reactor]." Ibid. The federal pre-emption question was the only issue raised in the case; there were no state law claims. In reversing the District Court's decision to dismiss under Burford, we recognized "the federal courts' discretion in de- termining whether to grant certain types of relief," 491 U. S., at 359, and we indicated, as we had previously in Alabama Pub. Serv. Comm'n v. Southern R. Co., 341 U. S. 341, 350­351 (1951), that Burford permits "a federal court sitting in eq- uity," 491 U. S., at 361, to dismiss a case only in extraordinary circumstances. We thus indicated that Burford allows a federal court to dismiss a case only if it presents " `difficult questions of state law bearing on policy problems of substan- tial public import whose importance transcends the result in 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 727 Opinion of the Court the case then at bar,' " or if its adjudication in a federal forum " `would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public con- cern.' " 491 U. S., at 361 (quoting Colorado River, supra, at 814). We ultimately held that Burford did not provide proper grounds for an abstention-based dismissal in NOPSI because the "case [did] not involve a state-law claim, nor even an assertion that the federal claims [were] `in any way entan- gled in a skein of state law that must be untangled before the federal case can proceed,' " 491 U. S., at 361 (quoting McNeese v. Board of Ed. for Community Unit School Dist. 187, 373 U. S. 668, 674 (1963)), and because there was no seri- ous threat of conflict between the adjudication of the federal claim presented in the case and the State's interest in ensur- ing uniformity in ratemaking decisions: "While Burford is concerned with protecting complex state administrative processes from undue federal in- fluence, it does not require abstention whenever there exists such a process, or even in all cases where there is a `potential for conflict' with state regulatory law or pol- icy. Here, NOPSI's primary claim is that the Council is prohibited by federal law from refusing to provide reim- bursement for FERC-allocated wholesale costs. Unlike a claim that a state agency has misapplied its lawful au- thority or has failed to take into consideration or prop- erly weigh relevant state-law factors, federal adjudica- tion of this sort of pre-emption claim would not disrupt the State's attempt to ensure uniformity in the treat- ment of an `essentially local problem.' " 491 U. S., at 362 (quoting Alabama Pub. Serv. Comm'n, supra, at 347) (citations omitted). These cases do not provide a formulaic test for determin- ing when dismissal under Burford is appropriate, but they do demonstrate that the power to dismiss under the Burford 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 728 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court doctrine, as with other abstention doctrines, see supra, at 716­723 (describing the traditional application of the absten- tion doctrines), derives from the discretion historically en- joyed by courts of equity. They further demonstrate that exercise of this discretion must reflect "principles of federal- ism and comity." Growe v. Emison, 507 U. S. 25, 32 (1993). Ultimately, what is at stake is a federal court's decision, based on a careful consideration of the federal interests in retaining jurisdiction over the dispute and the competing concern for the "independence of state action," Burford, 319 U. S., at 334, that the State's interests are paramount and that a dispute would best be adjudicated in a state forum. See NOPSI, supra, at 363 (question under Burford is whether adjudication in federal court would "unduly intrude into the processes of state government or undermine the State's ability to maintain desired uniformity"). This equi- table decision balances the strong federal interest in having certain classes of cases, and certain federal rights, adjudi- cated in federal court, against the State's interests in main- taining "uniformity in the treatment of an `essentially local problem,' " 491 U. S., at 362 (quoting Alabama Pub. Serv. Comm'n, supra, at 347), and retaining local control over "dif- ficult questions of state law bearing on policy problems of substantial public import," Colorado River, 424 U. S., at 814. This balance only rarely favors abstention, and the power to dismiss recognized in Burford represents an " `extraordinary and narrow exception to the duty of the District Court to adjudicate a controversy properly before it.' " Colorado River, supra, at 813 (quoting County of Allegheny, 360 U. S., at 188). C We turn, finally, to the application of Burford in this case. As in NOPSI, see 491 U. S., at 363, the federal interests in this case are pronounced, as Allstate's motion to compel arbi- tration under the Federal Arbitration Act (FAA) implicates a substantial federal concern for the enforcement of arbitra- 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 729 Opinion of the Court tion agreements. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 631 (1985) (FAA re- flects "emphatic federal policy in favor of arbitral dispute resolution"); cf. Moses H. Cone, 460 U. S., at 25­26 (in decid- ing whether to defer to state court adjudication under the Colorado River doctrine, "the presence of federal-law issues must always be a major consideration weighing against sur- render"). With regard to the state interests, however, the case appears at first blush to present nothing more than a run-of-the-mill contract dispute. The Commissioner seeks damages from Allstate for Allstate's failure to perform its obligations under a reinsurance agreement. What differen- tiates this case from other diversity actions seeking damages for breach of contract, if anything, is the impact federal adju- dication of the dispute might have on the ongoing liquidation proceedings in state court: The Commissioner claims that any recovery by Allstate on its setoff claims would amount to an illegal "preference" under state law. This question ap- pears now to have been conclusively answered by the Cali- fornia Supreme Court, see Prudential Reinsurance Co. v. Superior Court of Los Angeles Cty., 3 Cal. 4th 1118, 842 P. 2d 48 (1992) (permitting reinsurers to assert setoff claims in suits filed by the Commissioner in the Mission insolvency), although at the time the District Court ruled this question was still hotly contested. The Ninth Circuit concluded that the District Court's re- mand order was inappropriate because "Burford abstention does not apply to suits seeking solely legal relief." 47 F. 3d, at 354. Addressing our abstention cases, the Ninth Circuit held that the federal courts' power to abstain in certain cases is "locat[ed] . . . in the unique powers of equitable courts," and that it derives from equity courts' " `discretionary power to grant or withhold relief.' " 47 F. 3d, at 355 (quoting Ala- bama Pub. Serv. Comm'n v. Southern R. Co., 341 U. S., at 350­351). The Ninth Circuit's reversal of the District Court's abstention­based remand order in this case therefore 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT 730 QUACKENBUSH v. ALLSTATE INS. CO. Opinion of the Court reflects the application of a per se rule: "[T]he power of fed- eral courts to abstain from exercising their jurisdiction, at least in Burford abstention cases, is founded upon a dis- cretion they possess only in equitable cases." 47 F. 3d, at 355­356. To the extent the Ninth Circuit held only that a federal court cannot, under Burford, dismiss or remand an action when the relief sought is not discretionary, its judgment is consistent with our abstention cases. We have explained the power to dismiss or remand a case under the abstention doctrines in terms of the discretion federal courts have tradi- tionally exercised in deciding whether to provide equitable or discretionary relief, see supra, at 717­719, 721­722, and the Commissioner appears to have conceded that the relief being sought in this case is neither equitable nor otherwise committed to the discretion of the court. See App. to Pet. for Cert. 35a­37a (order denying petition for rehearing). In those cases in which we have applied traditional abstention principles to damages actions, we have only permitted a fed- eral court to "withhold action until the state proceedings have concluded," Growe, 507 U. S., at 32; that is, we have permitted federal courts applying abstention principles in damages actions to enter a stay, but we have not permitted them to dismiss the action altogether, see supra, at 719­721. The per se rule described by the Ninth Circuit is, however, more rigid than our precedents require. We have not strictly limited abstention to "equitable cases," 47 F. 3d, at 356, but rather have extended the doctrine to all cases in which a federal court is asked to provide some form of discre- tionary relief. See Huffman, 319 U. S., at 297; Samuels, 401 U. S., at 69­70, 72­73; supra, at 718­719. Moreover, as dem- onstrated by our decision in Thibodaux, see supra, at 719­ 721, we have not held that abstention principles are com- pletely inapplicable in damages actions. Burford might support a federal court's decision to postpone adjudication of a damages action pending the resolution by the state courts 517us3$57J 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 731 Scalia, J., concurring of a disputed question of state law. For example, given the situation the District Court faced in this case, a stay order might have been appropriate: The setoff issue was being de- cided by the state courts at the time the District Court ruled, see Prudential Reinsurance Co., supra, and in the interest of avoiding inconsistent adjudications on that point, the District Court might have been justified in entering a stay to await the outcome of the state court litigation. Like the Ninth Circuit, we review only the remand order which was entered, and find it unnecessary to determine whether a more limited abstention-based stay order would have been warranted on the facts of this case. We have no occasion to resolve what additional authority to abstain might be provided under our decision in Fair Assessment, see supra, at 719. Nor do we find it necessary to inquire fully as to whether this case presents the sort of "exceptional circumstance" in which Burford abstention or other grounds for yielding federal jurisdiction might be appropriate. Under our precedents, federal courts have the power to dis- miss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary. Because this was a damages action, we con- clude that the District Court's remand order was an unwar- ranted application of the Burford doctrine. The judgment is affirmed. It is so ordered. Justice Scalia, concurring. I join the opinion of the Court. I write separately only to respond to Justice Kennedy's concurrence. Justice Kennedy, while joining the opinion of the Court, says that he would "not rule out . . . the possibility that a federal court might dismiss a suit for damages in a case where a serious affront to the interests of federalism could be averted in no other way," post, at 733. I would not have joined today's opinion if I believed it left such discretionary 517us3$57K 02-19-99 11:05:49 PAGES OPINPGT 732 QUACKENBUSH v. ALLSTATE INS. CO. Scalia, J., concurring dismissal available. Such action is foreclosed, I think, by the Court's holding, clearly summarized in the concluding sentences of the opinion: "Under our precedents, federal courts have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary. Because this was a damages action, we conclude that the District Court's re- mand order was an unwarranted application of the Burford doctrine." Ante, at 731. Justice Kennedy's projected horrible of a "serious af- front to the interests of federalism" cannot possibly material- ize under the Court's holding. There is no "serious affront to the interests of federalism" when Congress lawfully de- cides to pre-empt state action-which is what our cases hold (and today's opinion affirms) Congress does whenever it in- structs federal courts to assert jurisdiction over matters as to which relief is not discretionary. If the Court today felt empowered to decide for itself when congressionally decreed jurisdiction constitutes a "serious affront" and when it does not, the opinion would have read much differently. Most pertinently, it would not have found it unnecessary "to inquire fully as to whether this case pre- sents the sort of `exceptional circumstance' in which Burford abstention or other grounds for yielding federal jurisdic- tion might be appropriate." Ibid. There were certainly grounds for such an inquiry if we thought it relevant. The "[then] unsettled but since resolved question of California law" to which Justice Kennedy refers, post, at 733, was only part of the basis for the District Court's decision to re- mand to state court; the court also pointed more generally to what it thought was the State's "overriding interest in regulating insurance insolvencies and liquidations in a uni- form and orderly manner," App. to Pet. for Cert. 34a. As the Court's opinion says, it is not necessary to inquire fully into that matter because this was a damages action. 517us3$57L 02-19-99 11:05:49 PAGES OPINPGT Cite as: 517 U. S. 706 (1996) 733 Kennedy, J., concurring Justice Kennedy, concurring. When this suit first was filed, it raised an unsettled but since resolved question of California law concerning the ability of companies in Allstate's position to set off claims held against Mission. The principal reason for the District Court's decision to dismiss the case was the threat posed to the state proceedings by different state and federal rulings on the question. The court's concern was reasonable. States, as a matter of tradition and express federal consent, have an important interest in maintaining precise and de- tailed regulatory schemes for the insurance industry. See, e. g., the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U. S. C. § 1011 et seq. The fact that a state court rather than an agency was chosen to implement California's scheme provided more reason, not less, for the federal court to stay its hand. At the same time, however, we have not considered a case in which dismissal of a suit for damages by extension of the doctrine of Burford v. Sun Oil Co., 319 U. S. 315 (1943), was held to be authorized and necessary. As the Court explains, no doubt the preferred course in such circumstances is to resolve any serious potential for federal intrusion by staying the suit while retaining jurisdiction. We ought not rule out, though, the possibility that a federal court might dismiss a suit for damages in a case where a serious affront to the interests of federalism could be averted in no other way. We need not reach that question here. Abstention doctrines are a significant contribution to the theory of federalism and to the preservation of the federal system in practice. They allow federal courts to give ap- propriate and necessary recognition to the role and authority of the States. The duty to take these considerations into account must inform the exercise of federal jurisdiction. Principles of equity thus are not the sole foundation for abstention rules; obligations of comity, and respect for the 517us3$57L 02-19-99 11:05:49 PAGES OPINPGT 734 QUACKENBUSH v. ALLSTATE INS. CO. Kennedy, J., concurring appropriate balance between state and federal interests, are an important part of the justification and authority for ab- stention as well. See, e. g., id., at 334 ("[A] sound respect for the independence of state action requires the federal eq- uity court to stay its hand"); Younger v. Harris, 401 U. S. 37, 44 (1971) (rooting abstention in "a proper respect for state functions" and "sensitivity to the legitimate interests of both State and National Governments"); Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976) (abstention doctrines are based on "considerations of proper constitutional adjudication and regard for federal-state rela- tions"). See also Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 551­552 (1985). The traditional role of discretion in the exercise of equity jurisdiction makes abstention easiest to justify in cases where equitable relief is sought, but abstention, including dismissal, is a possibility that may yet be addressed in a suit for damages, if funda- mental concerns of federalism require us to face the issue. With these observations, I join the opinion of the Court. 517us3$58Z 02-05-99 13:36:48 PAGES OPINPGT OCTOBER TERM, 1995 735 Syllabus SMILEY v. CITIBANK (SOUTH DAKOTA), N. A. certiorari to the supreme court of california No. 95­860. Argued April 24, 1996-Decided June 3, 1996 Petitioner, a resident of California, held credit cards issued by respondent, a national bank located in South Dakota. She filed suit in state court, alleging that late-payment fees charged by respondent, although legal under South Dakota law, violated California law. Respondent moved for judgment on the pleadings, contending that petitioner's state-law claims were pre-empted by a provision of the National Bank Act of 1864 that permits a national bank to charge its loan customers "interest at the rate allowed by the laws of the State . . . where the bank is located," 12 U. S. C. § 85, see Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp., 439 U. S. 299. The California Superior Court, accepting respondent's argument that credit card late-payment fees con- stitute "interest" for purposes of § 85, granted respondent's motion. The State Court of Appeal and State Supreme Court affirmed. Held: The Comptroller of the Currency has reasonably interpreted the term "interest" in § 85 to include late-payment fees, see 12 CFR § 7.4001(a), and petitioner has failed to establish that the Court should not accord its customary deference to the Comptroller's interpretation of an ambiguous provision of the National Bank Act. Pp. 739­747. (a) Where a provision of the National Bank Act is ambiguous, the Court, pursuant to Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842­845, defers to reasonable judgments of the Comptroller, the official charged with administering the Act. NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 256­257. Petitioner's argument that deference is not owing to the recently adopted 12 CFR § 7.4001(a) is unpersuasive. The validity of the Comptroller's interpretation is not affected by the fact that the reg- ulation was issued more than 100 years after § 85 was enacted or that it was litigation, including this very suit, which disclosed the need for the regulation. And the distinction that the regulation makes between those charges designated as interest and those not so classified is not arbitrary or capricious. See Chevron, supra, at 844. Petitioner errs in contending that an agency interpretation that contradicts a prior agency position is necessarily invalid; in any event, she fails to show that a change of official agency position has occurred here. Finally, the issue here, the meaning of § 85, does not bring into play the pre-emption con- siderations that petitioner raises. Pp. 739­744. 517us3$58Z 02-05-99 13:36:48 PAGES OPINPGT 736 SMILEY v. CITIBANK (SOUTH DAKOTA), N. A. Syllabus (b) The Comptroller's interpretation of the statutory term "interest" is reasonable. There is no indication that, at the time of the passage of the National Bank Act, common usage of the word "interest" or the phrase "at the rate allowed" required that interest charges be ex- pressed as functions of time and amount owing. Nor is there support for petitioner's contention that the late fees are "penalties" rather than "interest." See Citizens' Nat. Bank of Kansas City v. Donnell, 195 U. S. 369. Pp. 744­747. 11 Cal. 4th 138, 900 P. 2d 690, affirmed. Scalia, J., delivered the opinion for a unanimous Court. Michael D. Donovan argued the cause for petitioner. With him on the briefs were Pamela P. Bond, Patrick J. Grannan, Robin B. Howald, and Michael P. Malakoff. Richard B. Kendall argued the cause for respondent. With him on the brief were Michael H. Strub, Jr., Louis R. Cohen, Ronald J. Greene, and Christopher R. Lipsett. Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Barbara C. Biddle, Jacob M. Lewis, Julie L. Williams, L. Robert Griffin, and Joan M. Bernott.* *Briefs of amici curiae urging reversal were filed for the Common- wealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, Ernest L. Sarason, Jr., Assistant Attorney General, Charles F. C. Ruff, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, Richard Blumenthal of Connecticut, Robert A. But- terworth of Florida, Thomas J. Miller of Iowa, A. B. Chandler of Ken- tucky, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Tom Udall of New Mexico, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Jeffrey B. Pine of Rhode Island, Charles W. Burson of Tennessee, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, Christine Gregoire of Washington, and Darrell V. McGraw, Jr., of West Virginia; for the Bankcard Holders of America by Kennedy P. Richardson; for Consumer Action by James C. 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT Cite as: 517 U. S. 735 (1996) 737 Opinion of the Court Justice Scalia delivered the opinion of the Court. Section 30 of the National Bank Act of 1864, Rev. Stat. § 5197, as amended, 12 U. S. C. § 85, provides that a national bank may charge its loan customers "interest at the rate al- lowed by the laws of the State . . . where the bank is located." In Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp., 439 U. S. 299 (1978), we held that this provi- sion authorizes a national bank to charge out-of-state credit- card customers an interest rate allowed by the bank's home State, even when that rate is higher than what is permitted by the States in which the cardholders reside. The question in this case is whether § 85 also authorizes a national bank to charge late-payment fees that are lawful in the bank's home State but prohibited in the States where the cardhold- ers reside-in other words, whether the statutory term "in- terest" encompasses late-payment fees. I Petitioner, a resident of California, held two credit cards- a "Classic Card" and a "Preferred Card"-issued by respond- Sturdevant; and for the National Consumer Law Center et al. by Mark A. Chavez and Patricia Sturdevant. Briefs of amici curiae urging affirmance were filed for the State of Colorado et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Carter G. Phillips, and James M. Harris, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Gale A. Norton of Colorado, M. Jane Brady of Dela- ware, Michael J. Bowers of Georgia, Jim Ryan of Illinois, Joseph P. Ma- zurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Thomas W. Corbett, Jr., of Pennsyl- vania, Mark Barnett of South Dakota, Jan Graham of Utah, and James S. Gilmore III of Virginia; for Affinity Group Marketing et al. by Theodore W. Kheel; for the American Bankers Association et al. by Shirley M. Huf- stedler, L. Richard Fischer, James A. Huizinga, and W. Stephen Smith; for Greenwood Trust Co. et al. by Arthur R. Miller, Alan S. Kaplinsky, and Burt M. Rublin; for the New York Clearing House Association by John L. Warden and Richard J. Urowsky; and for Trial Lawyers for Public Justice et al. by Ann Miller and Adele P. Kimmel. 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT 738 SMILEY v. CITIBANK (SOUTH DAKOTA), N. A. Opinion of the Court ent, a national bank located in Sioux Falls, South Dakota. The Classic Card agreement provided that respondent would charge petitioner a late fee of $15 for each monthly period in which she failed to make her minimum monthly payment within 25 days of the due date. Under the Preferred Card agreement, respondent would impose a late fee of $6 if the minimum monthly payment was not received within 15 days of its due date; and an additional charge of $15 or 0.65% of the outstanding balance on the Preferred Card, whichever was greater, if the minimum payment was not received by the next minimum monthly payment due date. Petitioner was charged late fees on both cards. These late fees are permitted by South Dakota law, see S. D. Codified Laws §§ 54­3­1, 54­3­1.1 (1990 and Supp. 1995). Petitioner, however, is of the view that exacting such "unconscionable" late charges from California residents vio- lates California law, and in 1992 brought a class action against respondent on behalf of herself and other California holders of respondent's credit cards, asserting various statu- tory and common-law claims.1 Respondent moved for judg- ment on the pleadings, contending that petitioner's claims were pre-empted by § 85. The Superior Court of Los Angeles County initially denied respondent's motion, but the California Court of Appeal, Second Appellate District, issued a writ of mandate directing the Superior Court to either grant the motion or show cause why it should not be required to do so. The Superior Court chose the former course, and the Court of Appeal affirmed its dismissal of the complaint, 26 Cal. App. 4th 1767, 32 Cal. Rptr. 2d 562 (1994). The Su- preme Court of California granted review and affirmed, two 1 By way of common-law claims, petitioner's complaint alleged breach of duty of good faith and fair dealing; unjust enrichment; fraud and deceit; negligent misrepresentation; and breach of contract. It also alleged viola- tion of Cal. Bus. & Prof. Code Ann. § 17200 (West Supp. 1996) (prohibiting unlawful business practices) and Cal. Civ. Code Ann. § 1671 (West 1985) (invalidating unreasonable liquidated damages). 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT Cite as: 517 U. S. 735 (1996) 739 Opinion of the Court justices dissenting. 11 Cal. 4th 138, 900 P. 2d 690 (1995). We granted certiorari. 516 U. S. 1087 (1996). II In light of the two dissents from the opinion of the Su- preme Court of California, see 11 Cal. 4th, at 165, 177, 900 P. 2d, at 708, 716 (Arabian, J., dissenting, and George, J., dis- senting), and in light of the opinion of the Supreme Court of New Jersey creating the conflict that has prompted us to take this case,2 it would be difficult indeed to contend that the word "interest" in the National Bank Act is unambiguous with regard to the point at issue here. It is our practice to defer to the reasonable judgments of agencies with regard to the meaning of ambiguous terms in statutes that they are charged with administering. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842­ 845 (1984). As we observed only last Term, that practice extends to the judgments of the Comptroller of the Currency with regard to the meaning of the banking laws. "The Comptroller of the Currency," we said, "is charged with the enforcement of banking laws to an extent that warrants the invocation of [the rule of deference] with respect to his de- liberative conclusions as to the meaning of these laws." NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 256­257 (1995) (citations and internal quo- tation marks omitted). On March 3, 1995, which was after the California Superior Court's dismissal of petitioner's complaint, the Comptroller of the Currency noticed for public comment a proposed regu- 2 Sherman v. Citibank (South Dakota), N. A., 143 N. J. 35, 668 A. 2d 1036 (1995). The Supreme Court of Colorado and the United States Court of Appeals for the First Circuit have adopted the same interpretation as the Supreme Court of California. See Copeland v. MBNA America Bank, N. A., 907 P. 2d 87 (Colo. 1995); Greenwood Trust Co. v. Massachu- setts, 971 F. 2d 818, 829­831 (CA1 1992) (dictum), cert. denied, 506 U. S. 1052 (1993). 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT 740 SMILEY v. CITIBANK (SOUTH DAKOTA), N. A. Opinion of the Court lation dealing with the subject before us, see 60 Fed. Reg. 11924, 11940, and on February 9, 1996, which was after the California Supreme Court's decision, he adopted the follow- ing provision: "The term `interest' as used in 12 U. S. C. § 85 includes any payment compensating a creditor or prospective creditor for an extension of credit, making available of a line of credit, or any default or breach by a borrower of a condition upon which credit was extended. It includes, among other things, the following fees connected with credit extension or availability: numerical periodic rates, late fees, not sufficient funds (NSF) fees, overlimit fees, annual fees, cash advance fees, and membership fees. It does not ordinarily include appraisal fees, premiums and commissions attributable to insurance guaranteeing repayment of any extension of credit, finders' fees, fees for document preparation or notarization, or fees in- curred to obtain credit reports." 61 Fed. Reg. 4869 (to be codified in 12 CFR § 7.4001(a)). Petitioner proposes several reasons why the ordinary rule of deference should not apply to this regulation. First, peti- tioner points to the fact that this regulation was issued more than 100 years after the enactment of § 85, and seemingly as a result of this and similar litigation in which the Comptrol- ler has participated as amicus curiae on the side of the banks. The 100-year delay makes no difference. To be sure, agency interpretations that are of long standing come before us with a certain credential of reasonableness, since it is rare that error would long persist. But neither antiq- uity nor contemporaneity with the statute is a condition of validity. We accord deference to agencies under Chevron, not because of a presumption that they drafted the provi- sions in question, or were present at the hearings, or spoke to the principal sponsors; but rather because of a presump- tion that Congress, when it left ambiguity in a statute meant 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT Cite as: 517 U. S. 735 (1996) 741 Opinion of the Court for implementation by an agency, understood that the ambi- guity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows. See Chevron, supra, at 843­844. Nor does it matter that the regulation was prompted by litigation, including this very suit. Of course we deny deference "to agency litigating positions that are wholly unsupported by regulations, rul- ings, or administrative practice," Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212 (1988). The deliberateness of such positions, if not indeed their authoritativeness, is sus- pect. But we have before us here a full-dress regulation, issued by the Comptroller himself and adopted pursuant to the notice-and-comment procedures of the Administrative Procedure Act designed to assure due deliberation, see 5 U. S. C. § 553; Thompson v. Clark, 741 F. 2d 401, 409 (CADC 1984). That it was litigation which disclosed the need for the regulation is irrelevant. Second, petitioner contends that the Comptroller's regula- tion is not deserving of our deference because "there is no rational basis for distinguishing the various charges [it] has denominated interest . . . from those charges it has denomi- nated `non-interest.' " Reply Brief for Petitioner 14. We disagree. As an analytical matter, it seems to us perfectly possible to draw a line, as the regulation does, between (1) "payment compensating a creditor or prospective creditor for an extension of credit, making available of a line of credit, or any default or breach by a borrower of a condition upon which credit was extended," and (2) all other payments. To be sure, in the broadest sense all payments connected in any way with the loan-including reimbursement of the lender's costs in processing the application, insuring the loan, and appraising the collateral-can be regarded as "compensating [the] creditor for [the] extension of credit." But it seems to us quite possible and rational to distinguish, as the regula- tion does, between those charges that are specifically as- 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT 742 SMILEY v. CITIBANK (SOUTH DAKOTA), N. A. Opinion of the Court signed to such expenses and those that are assessed for sim- ply making the loan, or for the borrower's default. In its logic, at least, the line is not "arbitrary [or] capricious," and thereby disentitled to deference under Chevron, see 467 U. S., at 844. Whether it is "arbitrary [or] capricious" as an interpretation of what the statute means-or perhaps even (what Chevron also excludes from deference) "manifestly contrary to the statute"-we will discuss in the next Part of this opinion. Finally, petitioner argues that the regulation is not enti- tled to deference because it is inconsistent with positions taken by the Comptroller in the past. Of course the mere fact that an agency interpretation contradicts a prior agency position is not fatal. Sudden and unexplained change, see, e. g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 46­57 (1983), or change that does not take account of legitimate reliance on prior interpretation, see, e. g., United States v. Pennsyl- vania Industrial Chemical Corp., 411 U. S. 655, 670­675 (1973); NLRB v. Bell Aerospace Co., 416 U. S. 267, 295 (1974), may be "arbitrary, capricious [or] an abuse of discretion," 5 U. S. C. § 706(2)(A). But if these pitfalls are avoided, change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency. In any case, we do not think that anything which can accu- rately be described as a change of official agency position has occurred here. The agency's Notice of Proposed Rule- making asserted that the new regulation "reflect[s] current law and [Office of the Comptroller of the Currency (OCC)] interpretive letters," 60 Fed. Reg. 11929 (1995), and the Statement of Basis and Purpose accompanying the final adoption stated that "[t]he final ruling is consistent with OCC interpretive letters in this area . . . and reflects the position the OCC has taken in amicus curiae briefs in litiga- tion pending in many state and Federal courts," 61 Fed. Reg. 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT Cite as: 517 U. S. 735 (1996) 743 Opinion of the Court 4859 (1996) (citing OCC interpretive letters). Petitioner points only to (1) a June 1964 letter from the Comptroller to the President's Committee on Consumer Interests, which states that "[c]harges for late payments, credit life insurance, recording fees, documentary stamp are illustrations of charges which are made by some banks which would not properly be characterized as interest," see App. to Brief for Petitioner 5a; and (2) a 1988 opinion letter from the Deputy Chief Counsel of the OCC stating "it is my position that [under § 85] the laws of the states where the banks are lo- cated . . . determine whether or not the banks can impose the foregoing fees and charges [including late fees] on Iowa residents," OCC Interpretive Letter No. 452, reprinted in 1988­1989 Transfer Binder, CCH Fed. Banking L. Rep. ¶ 85,676, p. 78,064 (1988). We doubt whether either of these statements was sufficient in and of itself to establish a bind- ing agency policy-the former, because it was too informal, and the latter because it only purported to represent the position of the Deputy Chief Counsel in response to an in- quiry concerning particular banks. Nor can it even be ar- gued that the two statements reflect a prior agency policy, since, in addition to contradicting the regulation before us here, they also contradict one another-the former asserting that "interest" is a nationally uniform concept, and the latter that it is to be determined by reference to state law. What these statements show, if anything, is that there was good reason for the Comptroller to promulgate the new regula- tion, in order to eliminate uncertainty and confusion. In addition to offering these reasons why 12 CFR § 7.4001(a) in particular is not entitled to deference, peti- tioner contends that no Comptroller interpretation of § 85 is entitled to deference, because § 85 is a provision that pre- empts state law. She argues that the "presumption against . . . pre-emption" announced in Cipollone v. Liggett Group, Inc., 505 U. S. 504, 518 (1992), in effect trumps Chevron, and requires a court to make its own interpretation of § 85 that 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT 744 SMILEY v. CITIBANK (SOUTH DAKOTA), N. A. Opinion of the Court will avoid (to the extent possible) pre-emption of state law. This argument confuses the question of the substantive (as opposed to pre-emptive) meaning of a statute with the ques- tion of whether a statute is pre-emptive. We may assume (without deciding) that the latter question must always be decided de novo by the courts. That is not the question at issue here; there is no doubt that § 85 pre-empts state law. In Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp., 439 U. S. 299 (1978), we dismissed petitioners' argument that the "exportation" of interest rates from the bank's home State would "significantly impair the ability of States to enact effective usury laws" with the observation that "[t]his impairment . . . has always been implicit in the structure of the National Bank Act . . . . [T]he protection of state usury laws is an issue of legislative policy, and any plea to alter § 85 to further that end is better addressed to the wisdom of Congress than to the judgment of this Court." Id., at 318­319. What is at issue here is simply the meaning of a provision that does not (like the provision in Cipollone) deal with pre-emption, and hence does not bring into play the considerations petitioner raises.3 III Since we have concluded that the Comptroller's regulation deserves deference, the question before us is not whether it represents the best interpretation of the statute, but 3 In a four-line footnote on the last page of her reply brief, and unpur- sued in oral argument, petitioner raised the point that deferring to the regulation in this case involving antecedent transactions would make the regulation retroactive, in violation of Bowen v. Georgetown Univ. Hospi- tal, 488 U. S. 204, 208­209 (1988). Reply Brief for Petitioner 20, n. 17. There might be substance to this point if the regulation replaced a prior agency interpretation-which, as we have discussed, it did not. Where, however, a court is addressing transactions that occurred at a time when there was no clear agency guidance, it would be absurd to ignore the agency's current authoritative pronouncement of what the statute means. 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT Cite as: 517 U. S. 735 (1996) 745 Opinion of the Court whether it represents a reasonable one. The answer is obvi- ously yes. Petitioner argues that the late fees charged by respondent do not constitute "interest" because they "do not vary based on the payment owed or the time period of delay." Brief for Petitioner 32­33. We do not think that such a limitation must be read into the statutory term. Most legal dictionar- ies of the era of the National Bank Act did not place such a limitation upon "interest." See, e. g., 1 J. Bouvier, A Law Dictionary 652 (6th ed. 1856) ("The compensation which is paid by the borrower to the lender or by the debtor to the creditor for . . . use [of money]"); 2 A. Burrill, A Law Diction- ary and Glossary 90 (2d ed. 1860); 11 American and English Encyclopedia of Law 379 (J. Merrill ed. 1890). But see J. Wharton, Law Lexicon or Dictionary of Jurisprudence 391 (2d Am. ed. 1860). The definition of "interest" that we our- selves set out in Brown v. Hiatts, 15 Wall. 177, 185 (1873), decided shortly after the enactment of the National Bank Act, likewise contained no indication that it was limited to charges expressed as a function of time or of amount owing: "Interest is the compensation allowed by law, or fixed by the parties, for the use or forbearance of money or as damages for its detention." See also Hollowell v. Southern Build- ing & Loan Assn., 120 N. C. 286, 26 S. E. 781 (1897) ("[A]ny charges made against [the borrower] in excess of the lawful rate of interest, whether called `fines,' `charges,' `dues,' or `interest,' are in fact interest, and usurious"). Petitioner suggests another source for the asserted re- quirement that the charges be time- and rate-based: What is authorized by § 85, she notes, is the charging of interest "at the rate allowed" by the laws of the bank's home State. This requires, in her view, that the interest charges be ex- pressed as functions of time and amount owing. It would be surprising to find such a requirement in the Act, if only because it would be so pointless. Any flat charge may, of course, readily be converted to a percentage charge-which 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT 746 SMILEY v. CITIBANK (SOUTH DAKOTA), N. A. Opinion of the Court was indeed the basis for 19th-century decisions holding that flat charges violated state usury laws establishing maximum "rates." See, e. g., Craig v. Pleiss, 26 Pa. 271, 272­273 (1856); Hollowell, supra, at 286, 26 S. E., at 781. And there is no apparent reason why home-state-approved percentage charges should be permissible but home-state-approved flat charges unlawful. In any event, common usage at the time of the National Bank Act prevents the conclusion that the Comptroller's refusal to give the word "rate" the narrow meaning petitioner demands is unreasonable. The 1849 edi- tion of Webster's gives as one of the definitions of "rate" the "[p]rice or amount stated or fixed on any thing." N. Web- ster, American Dictionary of the English Language 910. To illustrate this sense of the word, it provides the following examples: "A king may purchase territory at too dear a rate. The rate of interest is prescribed by law." Ibid. Cf. 2 Bou- vier, supra, at 421 (defining "rate of exchange" as "the price at which a bill drawn in one country upon another, may be sold in the former"). Finally, petitioner contends that the late fees cannot be "interest" because they are "penalties." To support that di- chotomy, she points to our opinion in Meilink v. Unemploy- ment Reserves Comm'n of Cal., 314 U. S. 564, 570 (1942). But Meilink involved a provision of the Bankruptcy Act that disallowed debts owing to governmental entities "as a pen- alty," except for "the amount of the pecuniary loss sustained by the act . . . out of which the penalty . . . arose, with . . . such interest as may have accrued thereon according to law." Id., at 566. Obviously, this provision uses "interest" to mean only that interest which is exacted as commercial com- pensation, and not that interest which is exacted as a pen- alty. A word often takes on a more narrow connotation when it is expressly opposed to another word: "car," for example, has a broader meaning by itself than it does in a passage speaking of "cars and taxis." In § 85, the term "in- terest" is not used in contradistinction to "penalty," and 517us3$58k 02-05-99 13:36:48 PAGES OPINPGT Cite as: 517 U. S. 735 (1996) 747 Opinion of the Court there is no reason why it cannot include interest charges im- posed for that purpose. More relevant than Meilink is our opinion in Citizens' Nat. Bank of Kansas City v. Donnell, 195 U. S. 369 (1904), which did involve § 85 (or, more pre- cisely, its predecessor, Rev. Stat. § 5197). There, a bank ar- gued that a 12% charge on overdrafts did not violate a state law setting an 8% ceiling on interest rates because, inter alia, the overdraft charge "was a penalty because of a failure to pay a debt when due." Id., at 373­374. We dismissed the argument out of hand: "The suggestions as to the twelve per cent charge on overdrafts do not seem to us to need answer." Id., at 374. * * * Petitioner devotes much of her brief to the question whether the meaning of "interest" in § 85 can constitutionally be left to be defined by the law of the bank's home State-a question that is not implicated by the Comptroller's regula- tion. Because the regulation is entitled to deference, and because the Comptroller's interpretation of § 85 is not an unreasonable one, the decision of the Supreme Court of Cal- ifornia must be affirmed. It is so ordered. 517US3$59Z 02-07-99 19:16:27 PAGES OPINPGT 748 OCTOBER TERM, 1995 Syllabus LOVING v. UNITED STATES certiorari to the united states court of appeals for the armed forces No. 94­1966. Argued January 9, 1996-Decided June 3, 1996 A general court-martial found petitioner Loving, an Army private, guilty of both premeditated murder and felony murder under Article 118 of the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §§ 918(1), (4). Finding three aggravating factors-(1) that the premeditated murder was committed during a robbery, Rule for Courts-Martial (RCM) 1004(c)(7)(B); (2) that Loving acted as the triggerman in the felony mur- der, RCM 1004(c)(8); and (3) that Loving, having been found guilty of the premeditated murder, had committed a second murder, also proved at his single trial, RCM 1004(c)(7)(J)-the court-martial sentenced Lov- ing to death. The commander who convened the court-martial ap- proved the findings and sentence. The United States Army Court of Military Review and the United States Court of Appeals for the Armed Forces affirmed, rejecting Loving's attack on the promulgation by Exec- utive Order of the aggravating factors in RCM 1004. He contends that the Eighth Amendment and the separation-of-powers doctrine require that Congress, not the President, make the fundamental policy determi- nation respecting the factors that warrant the death penalty. Held:1. On the assumption that Furman v. Georgia, 408 U. S. 238, and subsequent cases apply to this crime and sentence, the Constitution requires the aggravating factors that Loving challenges. Under the Eighth Amendment, the military capital sentencing scheme must genu- inely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the ac- cused compared to others found guilty of murder, see, e. g., Lowenfield v. Phelps, 484 U. S. 231, 244. That narrowing is not achieved in the statute. Article 118 authorizes the death penalty for but two of the four types of murder therein specified, premeditated and felony murder, §§ 918(1), (4), whereas intentional murder without premeditation and murder resulting from wanton and dangerous conduct are not punish- able by death, §§ 918(2), (3). Moreover, Article 118(4) by its terms per- mits the death penalty for felony murder even if the accused had no intent to kill and did not do the killing himself. Because the Eighth Amendment does not permit death to be imposed in those circum- stances, Enmund v. Florida, 458 U. S. 782, 801, additional aggravating 517US3$59Z 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 749 Syllabus factors establishing a higher culpability are necessary to Article 118's constitutional validity, see, e. g., Lowenfield, supra, at 244. Pp. 755­756. 2. The President's prescription of the challenged aggravating factors did not violate the separation-of-powers principle. Pp. 756­774. (a) The fundamental precept of the delegation doctrine, a strand of this Court's separation-of-powers jurisprudence, is that the lawmaking function belongs to Congress, U. S. Const., Art. I, § 1, and may not be conveyed to another branch or entity, Field v. Clark, 143 U. S. 649, 692. This principle does not mean, however, that only Congress can make a rule of prospective force. Although it may not delegate the power to make the law, which necessarily involves discretion as to what the law shall be, Congress may delegate to others the authority or discretion to execute the law under and in pursuance of its terms. Id., at 693­694. Pp. 756­759. (b) The Court rejects Loving's argument that Congress lacks power to delegate to the President the authority to prescribe aggravat- ing factors in capital murder cases. An analysis of English constitu- tional history and of the historical necessities and events that instructed the Framers demonstrates that U. S. Const., Art. I, § 8, cl. 14-which empowers Congress "[t]o make Rules for the Government and Regula- tion of the land and naval forces"-does not grant an exclusive, nondele- gable power to determine military punishments, but gives Congress such flexibility to exercise or share power as the times might demand. And it would be contrary to the respect owed the President as Com- mander in Chief to hold that he may not be given wide discretion and authority. Thus, in the circumstances presented here, Congress may delegate authority to the President to define the aggravating factors that permit imposition of a statutory penalty, with the regulations pro- viding the narrowing of the death-eligible class that the Eighth Amend- ment requires. Pp. 759­769. (c) Also rejected is Loving's contention that, even if Congress can delegate to the President the authority to prescribe aggravating factors, Congress did not do so by implicit or explicit action in this instance. In fact, Congress exercised that power of delegation in 1950, when it enacted Articles 18, 56, and 36(a) of the UCMJ, 10 U. S. C. §§ 818 (A court-martial "may, under such limitations as the President may pre- scribe, adjudge any punishment not forbidden by [the UCMJ], including the penalty of death when specifically authorized"), 856 ("The punish- ment which a court-martial may direct . . . may not exceed such limits as the President may prescribe for that offense"), and 836(a) (which em- powers the President to make procedural rules for courts-martial, and was identified by Congress in 1985 as a source of Presidential authority 517US3$59Z 02-07-99 19:16:27 PAGES OPINPGT 750 LOVING v. UNITED STATES Syllabus to provide capital aggravating factors). Together, these Articles give clear authority to the President to promulgate RCM 1004. Pp. 769­771. (d) Loving's final assertion-that even if Articles 18, 56, and 36 can be construed as delegations, they lack an intelligible principle to guide the President's discretion-is also rejected. Had the delegations here called for the exercise of judgment or discretion that lies beyond the President's traditional authority, this argument might have more weight. However, because the President's duties as Commander in Chief require him to take responsible and continuing action to super- intend the military, including the courts-martial, the delegated duty to prescribe aggravating factors for capital cases is interlinked with duties already assigned to him by the Constitution's express terms. The same limitations on delegation do not apply where the entity exercising the delegated authority possesses independent authority over the subject matter. See, e. g., United States v. Mazurie, 419 U. S. 544, 556­557. Pp. 771­774. 41 M. J. 213, affirmed. Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Souter, Ginsburg, and Breyer, JJ., joined, and in which O'Connor and Scalia, JJ., joined as to Parts I, II, III, IV­B, and IV­C. Stevens, J., filed a concurring opinion, in which Souter, Gins- burg, and Breyer, JJ., joined, post, p. 774. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which O'Connor, J., joined, post, p. 775. Thomas, J., filed an opinion concurring in the judg- ment, post, p. 777. John H. Blume argued the cause for petitioner. With him on the briefs were Teresa L. Norris, Roy H. Hewitt, Fran W. Walterhouse, and Walter S. Weedman. Deputy Solicitor General Kneedler argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Miguel A. Estrada, and John F. De Pue.* *Ronald W. Meister, Steven R. Shapiro, and Diann Y. Rust-Tierney filed a brief for the American Civil Liberties Union as amicus curiae urging reversal. Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance. Briefs of amici curiae were filed for Public Citizen, Inc., by Alan B. Morrison, David C. Vladeck, and Eugene R. Fidell; for the United States 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 751 Opinion of the Court Justice Kennedy delivered the opinion of the Court. The case before us concerns the authority of the President, in our system of separated powers, to prescribe aggravating factors that permit a court-martial to impose the death pen- alty upon a member of the Armed Forces convicted of murder. I On December 12, 1988, petitioner Dwight Loving, an Army private stationed at Fort Hood, Texas, murdered two taxicab drivers from the nearby town of Killeen. He attempted to murder a third, but the driver disarmed him and escaped. Civilian and Army authorities arrested Loving the next af- ternoon. He confessed. After a trial, an eight-member general court-martial found Loving guilty of, among other offenses, premeditated murder and felony murder under Article 118 of the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §§ 918(1), (4). In the sentencing phase of the trial, the court-martial found three aggravating factors: (1) that the premeditated murder of the second driver was committed during the course of a robbery, Rule for Courts-Martial (RCM) 1004(c)(7)(B); (2) that Loving acted as the triggerman in the felony murder of the first driver, RCM 1004(c)(8); and (3) that Loving, having been found guilty of the premeditated murder, had committed a second murder, also proved at the single trial, RCM 1004(c)(7)(J). The court-martial sentenced Loving to death. The commander who convened the court-martial approved the findings and sentence. Cf. 10 U. S. C. § 860. The United States Army Court of Military Review and the United States Court of Appeals for the Armed Forces (formerly the United States Court of Military Appeals (CMA)) affirmed, 41 M. J. 213 (1994), relying on United States v. Curtis, 32 M. J. Navy-Marine Corps Appellate Defense Division by John Francis Hav- ranek, Howard Barry Goodman, and Phillip Del Grissom; and for Marci A. Hamilton et al. by David Schoenbrod, pro se. 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 752 LOVING v. UNITED STATES Opinion of the Court 252 (CMA), cert. denied, 502 U. S. 952 (1991), to reject Lov- ing's claims that the President lacked authority to promul- gate the aggravating factors that enabled the court-martial to sentence him to death. We granted certiorari. 515 U. S. 1191 (1995). II Although American courts-martial from their inception have had the power to decree capital punishment, they have not long had the authority to try and to sentence members of the Armed Forces for capital murder committed in the United States in peacetime. In the early days of the Repub- lic the powers of courts-martial were fixed in the Articles of War. Congress enacted the first Articles in 1789 by adopt- ing in full the Articles promulgated in 1775 (and revised in 1776) by the Continental Congress. Act of Sept. 29, 1789, ch. 25, § 4, 1 Stat. 96. (Congress reenacted the Articles in 1790 "as far as the same may be applicable to the constitution of the United States," Act of Apr. 30, 1790, ch. 10, § 13, 1 Stat. 121.) The Articles adopted by the First Congress placed significant restrictions on court-martial jurisdiction over capital offenses. Although the death penalty was au- thorized for 14 military offenses, American Articles of War of 1776, reprinted in W. Winthrop, Military Law and Prece- dents 961 (reprint 2d ed. 1920) (hereinafter Winthrop); Com- ment, Rocks and Shoals in a Sea of Otherwise Deep Commit- ment: General Court-Martial Size and Voting Requirements, 35 Nav. L. Rev. 153, 156­158 (1986), the Articles followed the British example of ensuring the supremacy of civil court jurisdiction over ordinary capital crimes that were punish- able by the law of the land and were not special military offenses. 1776 Articles, § 10, Art. 1, reprinted in Winthrop 964 (requiring commanders, upon application, to exert ut- most effort to turn offender over to civil authorities). Cf. British Articles of War of 1765, § 11, Art. 1, reprinted in Win- throp 937 (same). That provision was deemed protection enough for soldiers, and in 1806 Congress debated and re- 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 753 Opinion of the Court jected a proposal to remove the death penalty from court- martial jurisdiction. Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, 72 Harv. L. Rev. 1, 20­21 (1958). Over the next two centuries, Congress expanded court- martial jurisdiction. In 1863, concerned that civil courts could not function in all places during hostilities, Congress granted courts-martial jurisdiction of common-law capital crimes and the authority to impose the death penalty in wartime. Act of Mar. 3, 1863, § 30, 12 Stat. 736, Rev. Stat. § 1342, Art. 58 (1875); Coleman v. Tennessee, 97 U. S. 509, 514 (1879). In 1916, Congress granted to the military courts a general jurisdiction over common-law felonies committed by service members, except for murder and rape committed within the continental United States during peacetime. Articles of War of 1916, ch. 418, § 3, Arts. 92­93, 39 Stat. 664. Persons accused of the latter two crimes were to be turned over to the civilian authorities. Art. 74, 39 Stat. 662. In 1950, with the passage of the UCMJ, Congress lifted even this restriction. Article 118 of the UCMJ describes four types of murder subject to court-martial jurisdiction, two of which are punishable by death: "Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he- "(1) has a premeditated design to kill; "(2) intends to kill or inflict great bodily harm; "(3) is engaged in an act which is inherently danger- ous to another and evinces a wanton disregard of human life; or "(4) is engaged in the perpetration or attempted per- petration of burglary, sodomy, rape, robbery, or aggra- vated arson; "is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or im- 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 754 LOVING v. UNITED STATES Opinion of the Court prisonment for life as a court-martial may direct." 10 U. S. C. § 918. So matters stood until 1983, when the CMA confronted a challenge to the constitutionality of the military capital punishment scheme in light of Furman v. Georgia, 408 U. S. 238 (1972), and our ensuing death penalty jurisprudence. Although it held valid most of the death penalty procedures followed in courts-martial, the court found one fundamental defect: the failure of either the UCMJ or the RCM to require that court-martial members "specifically identify the aggra- vating factors upon which they have relied in choosing to impose the death penalty." United States v. Matthews, 16 M. J. 354, 379. The court reversed Matthews' death sen- tence, but ruled that either Congress or the President could remedy the defect and that the new procedures could be applied retroactively. Id., at 380­382. The President responded to Matthews in 1984 with an Ex- ecutive Order promulgating RCM 1004. In conformity with 10 U. S. C. § 852(a)(1), the Rule, as amended, requires a unan- imous finding that the accused was guilty of a capital offense before a death sentence may be imposed, RCM 1004(a)(2). The Rule also requires unanimous findings (1) that at least one aggravating factor is present and (2) that any extenuat- ing or mitigating circumstances are substantially outweighed by any admissible aggravating circumstances, 1004(b). RCM 1004(c) enumerates 11 categories of aggravating fac- tors sufficient for imposition of the death penalty. The Rule also provides that the accused is to have "broad latitude to present evidence in extenuation and mitigation," 1004(b)(3), and is entitled to have the members of the court-martial in- structed to consider all such evidence before deciding upon a death sentence, 1004(b)(6). This is the scheme Loving attacks as unconstitutional. He contends that the Eighth Amendment and the doctrine of separation of powers require that Congress, and not the 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 755 Opinion of the Court President, make the fundamental policy determination re- specting the factors that warrant the death penalty. III A preliminary question in this case is whether the Consti- tution requires the aggravating factors that Loving chal- lenges. The Government does not contest the application of our death penalty jurisprudence to courts-martial, at least in the context of a conviction under Article 118 for murder committed in peacetime within the United States, and we shall assume that Furman and the case law resulting from it are applicable to the crime and sentence in question. Cf. Trop v. Dulles, 356 U. S. 86 (1958) (analyzing court-martial punishments under the Eighth Amendment). The Eighth Amendment requires, among other things, that "a capital sentencing scheme must `genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' " Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (quoting Zant v. Stephens, 462 U. S. 862, 877 (1983)). Some schemes ac- complish that narrowing by requiring that the sentencer find at least one aggravating circumstance. 484 U. S., at 244. The narrowing may also be achieved, however, in the defini- tion of the capital offense, in which circumstance the require- ment that the sentencer "find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process." Id., at 246. Although the Government suggests the contrary, Brief for United States 11, n. 6, we agree with Loving, on the as- sumption that Furman applies to this case, that aggravating factors are necessary to the constitutional validity of the military capital punishment scheme as now enacted. Article 118 authorizes the death penalty for but two of the four types of murder specified: premeditated and felony murder are punishable by death, 10 U. S. C. §§ 918(1), (4), whereas 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 756 LOVING v. UNITED STATES Opinion of the Court intentional murder without premeditation and murder re- sulting from wanton and dangerous conduct are not, §§ 918(2), (3). The statute's selection of the two types of murder for the death penalty, however, does not narrow the death-eligible class in a way consistent with our cases. Article 118(4) by its terms permits death to be imposed for felony murder even if the accused had no intent to kill and even if he did not do the killing himself. The Eighth Amendment does not permit the death penalty to be imposed in those circumstances. Enmund v. Florida, 458 U. S. 782, 801 (1982). As a result, additional aggravating factors es- tablishing a higher culpability are necessary to save Article 118. We turn to the question whether it violated the princi- ple of separation of powers for the President to prescribe the aggravating factors required by the Eighth Amendment. IV Even before the birth of this country, separation of powers was known to be a defense against tyranny. Montesquieu, The Spirit of the Laws 151­152 (T. Nugent transl. 1949); 1 W. Blackstone, Commentaries *146­*147, *269­*270. Though faithful to the precept that freedom is imperiled if the whole of legislative, executive, and judicial power is in the same hands, The Federalist No. 47, pp. 325­326 (J. Madi- son) (J. Cooke ed. 1961), the Framers understood that a "her- metic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively," Buckley v. Valeo, 424 U. S. 1, 120­121 (1976) (per curiam). "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable gov- ernment. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngs- town Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring). 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 757 Opinion of the Court Although separation of powers " `d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul over the acts of each other,' " Mistretta v. United States, 488 U. S. 361, 380­381 (1989) (quoting The Federalist No. 47, supra, at 325­326 (emphasis deleted)), it remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another. See Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 225­226 (1995) (Congress may not revise judicial determinations by retroactive legislation re- opening judgments); Bowsher v. Synar, 478 U. S. 714, 726 (1986) (Congress may not remove executive officers except by impeachment); INS v. Chadha, 462 U. S. 919, 954­955 (1983) (Congress may not enact laws without bicameral pas- sage and presentment of the bill to the President); United States v. Klein, 13 Wall. 128, 147 (1872) (Congress may not deprive court of jurisdiction based on the outcome of a case or undo a Presidential pardon). Even when a branch does not arrogate power to itself, moreover, the separation-of- powers doctrine requires that a branch not impair another in the performance of its constitutional duties. Mistretta v. United States, supra, at 397­408 (examining whether statute requiring participation of Article III judges in the United States Sentencing Commission threatened the integrity of the Judicial Branch); Nixon v. Administrator of General Services, 433 U. S. 425, 445 (1977) (examining whether law requiring agency control of Presidential papers disrupted the functioning of the Executive). Deterrence of arbitrary or tyrannical rule is not the sole reason for dispersing the federal power among three branches, however. By allocating specific powers and re- sponsibilities to a branch fitted to the task, the Framers created a National Government that is both effective and accountable. Article I's precise rules of representation, member qualifications, bicameralism, and voting procedure make Congress the branch most capable of responsive and 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 758 LOVING v. UNITED STATES Opinion of the Court deliberative lawmaking. See Chadha, supra, at 951. Ill suited to that task are the Presidency, designed for the prompt and faithful execution of the laws and its own legiti- mate powers, and the Judiciary, a branch with tenure and authority independent of direct electoral control. The clear assignment of power to a branch, furthermore, allows the citizen to know who may be called to answer for making, or not making, those delicate and necessary decisions essential to governance. Another strand of our separation-of-powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties. Loving invokes this doctrine to question the authority of the President to promulgate RCM 1004. The fundamental precept of the delegation doctrine is that the lawmaking function belongs to Congress, U. S. Const., Art. I, § 1, and may not be conveyed to another branch or entity. Field v. Clark, 143 U. S. 649, 692 (1892). This principle does not mean, however, that only Congress can make a rule of prospective force. To burden Congress with all federal rulemaking would divert that branch from more pressing issues, and defeat the Framers' design of a workable National Government. Thomas Jefferson ob- served: "Nothing is so embarrassing nor so mischievous in a great assembly as the details of execution." 5 Works of Thomas Jefferson 319 (P. Ford ed. 1904) (letter to E. Car- rington, Aug. 4, 1787). See also A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 529­530 (1935) (recog- nizing "the necessity of adapting legislation to complex con- ditions involving a host of details with which the national legislature cannot deal directly"). This Court established long ago that Congress must be permitted to delegate to others at least some authority that it could exercise itself. Wayman v. Southard, 10 Wheat. 1, 42 (1825). " `The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring author- 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 759 Opinion of the Court ity or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.' " Field, supra, at 693­694, quoting Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88­89 (1852). Loving contends that the military death penalty scheme of Article 118 and RCM 1004 does not observe the limits of the delegation doctrine. He presses his constitutional challenge on three fronts. First, he argues that Congress cannot delegate to the President the authority to prescribe aggravating factors in capital murder cases. Second, he contends that, even if it can, Congress did not delegate the authority by implicit or explicit action. Third, Loving be- lieves that even if certain statutory provisions can be con- strued as delegations, they lack an intelligible principle to guide the President's discretion. Were Loving's premises to be accepted, the President would lack authority to prescribe aggravating factors in RCM 1004, and the death sentence imposed upon him would be unconstitutional. A Loving's first argument is that Congress lacks power to allow the President to prescribe aggravating factors in mili- tary capital cases because any delegation would be inconsist- ent with the Framers' decision to vest in Congress the power "To make Rules for the Government and Regulation of the land and naval Forces." U. S. Const., Art. I, § 8, cl. 14. At least in the context of capital punishment for peacetime crimes, which implicates the Eighth Amendment, this power must be deemed exclusive, Loving contends. In his view, not only is the determination of aggravating factors a quint- essential policy judgment for the Legislature, but the history of military capital punishment in England and America re- futes a contrary interpretation. He asserts that his offense was not tried in a military court throughout most of English 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 760 LOVING v. UNITED STATES Opinion of the Court and American history. It is this historical exclusion of common-law capital crimes from military jurisdiction, he urges, that must inform our understanding of whether Clause 14 reserves to Congress the power to prescribe what conduct warrants a death sentence, even if it permits Con- gress to authorize courts-martial to try such crimes. See Brief for Petitioner 42­43; Brief for United States Navy- Marine Corps Appellate Defense Division as Amicus Curiae 7­12, 19­26. Mindful of the historical dangers of autocratic military justice and of the limits Parliament set on the peace- time jurisdiction of courts-martial over capital crimes in the first Mutiny Act, 1 Wm. & Mary, ch. 5 (1689), and having experienced the military excesses of the Crown in colonial America, the Framers harbored a deep distrust of executive military power and military tribunals. See Reid v. Covert, 354 U. S. 1, 23­24 (1957) (plurality); Lee v. Madigan, 358 U. S. 228, 232 (1959). It follows, Loving says, that the Framers intended that Congress alone should possess the power to decide what aggravating factors justify sentencing a member of the Armed Forces to death. We have undertaken before, in resolving other issues, the difficult task of interpreting Clause 14 by drawing upon Eng- lish constitutional history. See, e. g., Reid, supra, at 23­30; O'Callahan v. Parker, 395 U. S. 258, 268­272 (1969) (deter- mining that courts-martial only had jurisdiction of service- connected crimes); Solorio v. United States, 483 U. S. 435, 442­446 (1987) (overruling O'Callahan and taking issue with its historical analysis). Doing so here, we find that, al- though there is a grain of truth in Loving's historical argu- ments, the struggle of Parliament to control military tribu- nals and the lessons the Framers drew from it are more complex than he suggests. The history does not require us to read Clause 14 as granting to Congress an exclusive, non- delegable power to determine military punishments. If any- thing, it appears that England found security in divided au- thority, with Parliament at times ceding to the Crown the 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 761 Opinion of the Court task of fixing military punishments. From the English ex- perience the Framers understood the necessity of balancing efficient military discipline, popular control of a standing army, and the rights of soldiers; they perceived the risks inherent in assigning the task to one part of the Government to the exclusion of another; and they knew the resulting parliamentary practice of delegation. The Framers' choice in Clause 14 was to give Congress the same flexibility to exercise or share power as times might demand. In England after the Norman Conquest, military justice was a matter of royal prerogative. The rudiments of law in English military justice can first be seen in the written or- ders issued by the King for various expeditions. Winthrop 17­18. For example, in 1190 Richard I issued an ordinance outlining six offenses to which the crusaders would be sub- ject, including two punishable by death: "Whoever shall slay a man on ship-board, he shall be bound to the dead man and thrown into the sea. If he shall slay him on land he shall be bound to the dead man and buried in the earth." Ordinance of Richard I-A. D. 1190, reprinted in id., at 903. The first comprehensive articles of war were those declared by Rich- ard II at Durham in 1385 and Henry V at Mantes in 1419, which decreed capital offenses that not only served military discipline but also protected foreign noncombatants from the ravages of war. T. Meron, Henry's Wars and Shakespeare's Laws: Perspectives on the Law of War in the Later Middle Ages 91­93 (1993). Articles of War, sometimes issued by military commanders acting under royal commission in the ensuing centuries, Winthrop 19, were not fixed codes, at least through the 17th century; rather, "each war, each expedition, had its own edict," which lost force after the cessation of hostilities and the disbanding of the army that had been formed. J. Pipon & J. Collier, Manual of Military Law 14 (3d rev. ed. 1863). Thus, royal ordinances governed the conduct of war, but the common law did not countenance the enforcement of mili- 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 762 LOVING v. UNITED STATES Opinion of the Court tary law in times of peace "when the king's courts [were] open for all persons to receive justice according to the laws of the land." 1 W. Blackstone, Commentaries *413. See also M. Hale, History of the Common Law of England 25­27 (C. Gray ed. 1971) (describing efforts of Parliament and the common-law courts to limit the jurisdiction of the military Courts of the Constable and the Marshal). "The Common Law made no distinction between the crimes of soldiers and those of civilians in time of peace. All subjects were tried alike by the same civil courts, so `if a life-guardsman deserted, he could only be sued for breach of contract, and if he struck his officer he was only liable to an indictment or action of battery.' " Reid, supra, at 24, n. 44 (quoting 2 J. Campbell, Lives of the Chief Justices of England 91 (1849)). See also 1 T. Macaulay, History of England 272 (n. d.) (herein- after Macaulay). The triumph of civil jurisdiction was not absolute, how- ever. The political disorders of the 17th century ushered in periods of harsh military justice, with soldiers and at times civilian rebels punished, even put to death, under the sum- mary decrees of courts-martial. See C. Clode, Administra- tion of Justice Under Military and Martial Law 20­42 (1872) (hereinafter Clode). Cf. Petition of Right of 1627, 3 Car. I, ch. 1 (protesting court-martial abuses). Military justice was brought under the rule of parliamentary law in 1689, when William and Mary accepted the Bill of Rights requiring Par- liament's consent to the raising and keeping of armies. In the Mutiny Act of 1689, Parliament declared the general principle that "noe Man may be forejudged of Life or Limbe or subjected to any kinde of punishment by Martiall Law or in any other manner then by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme," but decreed that "Soldiers who shall Mutiny or 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 763 Opinion of the Court stirr up Sedition or shall desert Their Majestyes Service be brought to a more Exemplary and speedy Punishment than the usuall Forms of Law will allow," and "shall suffer Death or such other Punishment as by a Court-Martiall shall be Inflicted." 1 Wm. & Mary, ch. 5. In one sense, as Loving wants to suggest, the Mutiny Act was a sparing exercise of parliamentary authority, since only the most serious domestic offenses of soldiers were made capital, and the militia was exempted. See Solorio, supra, at 442. He misunderstands the Mutiny Act of 1689, how- ever, in arguing that it bespeaks a special solicitude for the rights of soldiers and a desire of Parliament to exclude Exec- utive power over military capital punishment. The Mutiny Act, as its name suggests, came on the heels of the mutiny of Scottish troops loyal to James II. 3 Macaulay 45­49. The mutiny occurred at a watershed time. Men- aced by great continental powers, England had come to a grudging recognition that a standing army, long decried as an instrument of despotism, had to be maintained on its soil. The mutiny cast in high relief the dangers to the polity of a standing army turned bad. Macaulay describes the senti- ment of the time: "There must then be regular soldiers; and, if there were to be regular soldiers, it must be indispensable, both to their efficiency, and to the security of every other class, that they should be kept under a strict discipline. An ill disciplined army . . . [is] formidable only to the coun- try which it is paid to defend. A strong line of demarca- tion must therefore be drawn between the soldiers and the rest of the community. For the sake of public free- dom, they must, in the midst of freedom, be placed under a despotic rule. They must be subject to a sharper penal code, and to a more stringent code of procedure, than are administered by the ordinary tribunals." Id., at 50. 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 764 LOVING v. UNITED STATES Opinion of the Court The Mutiny Act, then, was no measure of leniency for sol- diers. With its passage, "the Army of William III. was gov- erned under a severer Code than that made by his predeces- sors under the Prerogative authority of the Crown. The Mutiny Act, without displacing the Articles of War and those Military Tribunals under which the Army had hitherto been governed, gave statutory sanction to the infliction of Capital Punishments for offences rather Political than Military, and which had rarely been so punished under Prerogative au- thority." Clode 9­10. See also Duke & Vogel, The Consti- tution and the Standing Army: Another Problem of Court- Martial Jurisdiction, 13 Vand. L. Rev. 435, 443, and n. 40 (1960) (noting that the Articles of War of 1662 and 1686 prohibited the infliction in peacetime of punishment costing life or limb). Indeed, it was the Crown that later tempered the excesses of courts-martial wielding the power of capital punishment. It did so by stipulating in the Articles of War (which remained a matter of royal prerogative) that all capital sentences be sent to it for revision or approval. Clode 9­10. Popular suspicion of the standing army persisted, 5 Macau- lay 253­273, 393, and Parliament authorized the Mutiny Acts only for periods of six months and then a year, 3 id., at 51­53. But renewed they were time and again, and Parliament would alter the power of courts-martial to impose the death penalty for peacetime offenses throughout the next century. It withdrew the power altogether in 1713, 12 Anne, ch. 13, § 1, only to regret the absence of the penalty during the re- bellion of 1715, Clode 49. The third of the Mutiny Acts of 1715 subjected the soldier to capital punishment for a wide array of peacetime offenses related to political disorder and troop discipline. Id., at 50. And, for a short time in the 18th century, Parliament allowed the Crown to invest courts-martial with a general criminal jurisdiction over sol- diers even at home, placing no substantive limit on the penal- ties that could be imposed; until 1718, that jurisdiction was 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 765 Opinion of the Court superior to civil courts. Id., at 52­53. The propriety of that general jurisdiction within the kingdom was questioned, and the jurisdiction was withdrawn in 1749. Id., at 53. Nevertheless, even as it continued to adjust the scope of military jurisdiction at home, Parliament entrusted broad powers to the Crown to define and punish military crimes abroad. In 1713, it gave statutory sanction to the Crown's longstanding practice of issuing Articles of War without lim- iting the kind of punishments that might be imposed; and, in the same Act, it delegated the power to "erect and constitute Courts Martial with Power to try hear and determine any Crime or Offence by such Articles of War and inflict Penal- ties by Sentence or Judgement of the same in any of Her Majesties Dominions beyond the Seas or elsewhere beyond the Seas (except in the Kingdom of Ireland) . . . as might have been done by Her Majesties Authority beyond the Seas in Time of War." 12 Anne, ch. 13, § 43; Winthrop 20. Cf. Duke & Vogel, supra, at 444 (noting that Parliament in 1803 gave statutory authority to the Crown to promulgate Arti- cles of War applicable to troops stationed in England as well). See Solorio, 483 U. S., at 442 (discussing a provision in the British Articles of War of 1774 providing court-martial juris- diction of civilian offenses by soldiers). As Loving contends, and as we have explained elsewhere, the Framers well knew this history, and had encountered firsthand the abuses of military law in the colonies. See Reid, 354 U. S., at 27­28. As many were themselves veter- ans of the Revolutionary War, however, they also knew the imperatives of military discipline. What they distrusted were not courts-martial per se, but military justice dispensed by a commander unchecked by the civil power in proceedings so summary as to be lawless. The latter was the evil that caused Blackstone to declare that "martial law"-by which he, not observing the modern distinction between military and martial law, meant decrees of courts-martial disciplining soldiers in wartime-"is built upon no settled principles, but 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 766 LOVING v. UNITED STATES Opinion of the Court is entirely arbitrary in its decisions, [and] is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law." 1 Blackstone's Com- mentaries *413. See also Hale, History of the Common Law of England, at 26­27; Clode 21 (military law in early 17th- century England amounted to "the arbitrary right to punish or destroy, without legal trial, any assumed delinquent"). The partial security Englishmen won against such abuse in 1689 was to give Parliament, preeminent guardian of the British constitution, primacy in matters of military law. This fact does not suggest, however, that a legislature's power must be exclusive. It was for Parliament, as it did in the various Mutiny Acts, to designate as the times required what peacetime offenses by soldiers deserved the punish- ment of death; and it was for Parliament, as it did in 1713, to delegate the authority to define wartime offenses and de- vise their punishments, including death. The Crown re- ceived the delegated power and the concomitant responsibil- ity for its prudent exercise. The lesson from the English constitutional experience was that Parliament must have the primary power to regulate the Armed Forces and to deter- mine the punishments that could be imposed upon soldiers by courts-martial. That was not inconsistent, however, with the further power to divide authority between it and the Crown as conditions might warrant. Far from attempting to replicate the English system, of course, the Framers separated the powers of the Federal Government into three branches to avoid dangers they thought latent or inevitable in the parliamentary structure. The historical necessities and events of the English constitu- tional experience, though, were familiar to them and inform our understanding of the purpose and meaning of constitu- tional provisions. As we have observed before, with this experience to consult they elected not to "freeze court- martial usage at a particular time" for all ages following, Solorio, supra, at 446, nor did they deprive Congress of the 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 767 Opinion of the Court services of the Executive in establishing rules for the gover- nance of the military, including rules for capital punishment. In the words of Alexander Hamilton, the power to regulate the Armed Forces, like other powers related to the common defense, was given to Congress "without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the corresponding extent & variety of the means which may be necessary to satisfy them. The circum- stances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is com- mitted. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defence." The Federalist No. 23, at 147 (emphasis deleted). The later-added Bill of Rights limited this power to some degree, cf. Burns v. Wilson, 346 U. S. 137, 140 (1953) (plural- ity opinion); Chappell v. Wallace, 462 U. S. 296, 300 (1983), but did not alter the allocation to Congress of the "primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military," Solorio, 483 U. S., at 447­448. Under Clause 14, Congress, like Parliament, exercises a power of precedence over, not exclusion of, Executive au- thority. Cf. United States v. Eliason, 16 Pet. 291, 301 (1842) ("The power of the executive to establish rules and regula- tions for the government of the army, is undoubted"). This power is no less plenary than other Article I powers, Solorio, supra, at 441, and we discern no reasons why Congress should have less capacity to make measured and appropriate delegations of this power than of any other, see Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 220­221 (1989) 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 768 LOVING v. UNITED STATES Opinion of the Court (Congress may delegate authority under the taxing power); cf. Lichter v. United States, 334 U. S. 742, 778 (1948) (general rule is that "[a] constitutional power implies a power of dele- gation of authority under it sufficient to effect its purposes") (emphasis deleted). Indeed, it would be contrary to prece- dent and tradition for us to impose a special limitation on this particular Article I power, for we give Congress the highest deference in ordering military affairs. Rostker v. Goldberg, 453 U. S. 57, 64­65 (1981). And it would be con- trary to the respect owed the President as Commander in Chief to hold that he may not be given wide discretion and authority. We decline to import into Clause 14 a restrictive nondelegation principle that the Framers left out. There is no absolute rule, furthermore, against Congress' delegation of authority to define criminal punishments. We have upheld delegations whereby the Executive or an inde- pendent agency defines by regulation what conduct will be criminal, so long as Congress makes the violation of regula- tions a criminal offense and fixes the punishment, and the regulations "confin[e] themselves within the field covered by the statute." United States v. Grimaud, 220 U. S. 506, 518 (1911). See also Touby v. United States, 500 U. S. 160 (1991). The exercise of a delegated authority to define crimes may be sufficient in certain circumstances to supply the notice to defendants the Constitution requires. See M. Kraus & Bros., Inc. v. United States, 327 U. S. 614, 622 (1946). In the circumstances presented here, so too may Congress delegate authority to the President to define the aggravating factors that permit imposition of a statutory penalty, with the regu- lations providing the narrowing of the death-eligible class that the Eighth Amendment requires. In 1950, Congress confronted the problem of what criminal jurisdiction would be appropriate for Armed Forces of colos- sal size, stationed on bases that in many instances were small societies unto themselves. Congress, confident in the proce- dural protections of the UCMJ, gave to courts-martial juris- 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 769 Opinion of the Court diction of the crime of murder. Cf. Solorio, supra, at 450­ 451 (Congress may extend court-martial jurisdiction to any criminal offense committed by a service member during his period of service). It further declared the law that service members who commit premeditated and felony murder may be sentenced to death by a court-martial. There is nothing in the constitutional scheme or our traditions to prohibit Congress from delegating the prudent and proper implemen- tation of the capital murder statute to the President acting as Commander in Chief. B Having held that Congress has the power of delegation, we further hold that it exercised the power in Articles 18 and 56 of the UCMJ. Article 56 specifies that "[t]he punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense." 10 U. S. C. § 856. Article 18 states that a court- martial "may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by [the UCMJ], including the penalty of death when specifically au- thorized by" the Code. § 818. As the Court of Military Ap- peals pointed out in Curtis, for some decades the President has used his authority under these Articles to increase the penalties for certain noncapital offenses if aggravating circumstances are present. For example, by regulation, deserters who are apprehended are punished more severely than those who surrender; drunken drivers suffer a harsher fate if they cause an accident resulting in the death of a vic- tim; and the punishment of thieves is graded by the value of the stolen goods. See Curtis, 32 M. J., at 261. The Presi- dent has thus provided more precision in sentencing than is provided by the statute, while remaining within statutory bounds. This past practice suggests that Articles 18 and 56 support as well an authority in the President to restrict the death sentence to murders in which certain aggravating circumstances have been established. 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 770 LOVING v. UNITED STATES Opinion of the Court There is yet a third provision of the UCMJ indicative of congressional intent to delegate this authority to the Presi- dent. Article 36 of the UCMJ, which gives the President the power to make procedural rules for courts-martial, provides: "Pretrial, trial, and post-trial procedures, including modes of proof, for [courts martial] . . . may be pre- scribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter." 10 U. S. C. § 836(a). Although the language of Article 36 seems further afield from capital aggravating factors than that of Article 18 or 56, it is the provision that a later Congress identified as the source of Presidential authority to prescribe these factors. In 1985, Congress enacted Article 106a of the UCMJ, 10 U. S. C. § 906a, which authorized the death penalty for espio- nage. The Article requires a finding of an aggravating fac- tor if the accused is to be sentenced to death; it enumerates three such factors, but allows death to be decreed on "[a]ny other factor that may be prescribed by the President by regulations under section 836 of this title (article 36)." § 906a(c)(4). Article 106a itself, then, is premised on the President's having authority under Article 36 to prescribe capital aggravating factors, and " `[s]ubsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.' " Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 118, n. 13 (1980) (quoting Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380­381 (1969)). Whether or not Article 36 would stand on its own as the source of the delegated power, we hold that Articles 18, 36, and 56 together give clear authority to the President for the promulgation of RCM 1004. 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 771 Opinion of the Court Loving points out that the three Articles were enacted as part of the UCMJ in 1950, well before the need for eliminat- ing absolute discretion in capital sentencing was established in Furman v. Georgia, 408 U. S. 238 (1972), and the cases that followed. (Slight amendments to the Articles have been made since but are not relevant here.) In 1950, he ar- gues, Congress could not have understood that it was giving the President the authority to bring an otherwise invalid capital murder statute in line with Eighth Amendment stric- tures. Perhaps so, but Furman did not somehow undo the prior delegation. What would have been an act of leniency by the President prior to Furman may have become a con- stitutional necessity thereafter, see supra, at 755­756, but the fact remains the power to prescribe aggravating circum- stances has resided with the President since 1950. C It does not suffice to say that Congress announced its will to delegate certain authority. Congress as a general rule must also "lay down by legislative act an intelligible princi- ple to which the person or body authorized to [act] is directed to conform." J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928); Touby, 500 U. S., at 165. The intelligible-principle rule seeks to enforce the understanding that Congress may not delegate the power to make laws and so may delegate no more than the authority to make policies and rules that implement its statutes. Field, 143 U. S., at 693­694. Though in 1935 we struck down two delegations for lack of an intelligible principle, A. L. A. Schecter Poultry Corp. v. United States, 295 U. S. 495 (1935), and Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), we have since upheld, without exception, delegations under standards phrased in sweeping terms. See, e. g., National Broadcast- ing Co. v. United States, 319 U. S. 190, 216­217, 225­226 (1943) (upholding delegation to the Federal Communications Commission to regulate radio broadcasting according to 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 772 LOVING v. UNITED STATES Opinion of the Court "public interest, convenience, or necessity"). Had the dele- gations here called for the exercise of judgment or discretion that lies beyond the traditional authority of the President, Loving's last argument that Congress failed to provide guid- ing principles to the President might have more weight. We find no fault, however, with the delegation in this case. In United States v. Curtis, the Court of Military Appeals discerned a principle limiting the President's discretion to define aggravating factors for capital crimes in Article 36: namely, the directive that regulations the President pre- scribes must "apply the principles of law . . . generally recog- nized in the trial of criminal cases in the United States dis- trict courts, but which may not be contrary to or inconsistent with this chapter," 10 U. S. C. § 836(a). We think, however, that the question to be asked is not whether there was any explicit principle telling the President how to select aggra- vating factors, but whether any such guidance was needed, given the nature of the delegation and the officer who is to exercise the delegated authority. First, the delegation is set within boundaries the President may not exceed. Second, the delegation here was to the President in his role as Com- mander in Chief. Perhaps more explicit guidance as to how to select aggravating factors would be necessary if delega- tion were made to a newly created entity without independ- ent authority in the area. Cf. Mistretta, 488 U. S., at 374­ 379 (upholding delegation to the United States Sentencing Commission because of detailed congressional directives channeling agency discretion). The President's duties as Commander in Chief, however, require him to take responsi- ble and continuing action to superintend the military, includ- ing the courts-martial. The delegated duty, then, is inter- linked with duties already assigned to the President by express terms of the Constitution, and the same limitations on delegation do not apply "where the entity exercising the delegated authority itself possesses independent authority over the subject matter," United States v. Mazurie, 419 U. S. 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 773 Opinion of the Court 544, 556­557 (1975). See also United States v. Curtiss- Wright Export Corp., 299 U. S. 304, 319­322 (1936). Cf. Swaim v. United States, 165 U. S. 553, 557­558 (1897) (Presi- dent has inherent authority to convene courts-martial). Like the Court of Military Appeals, Curtis, 32 M. J., at 263, n. 9, we need not decide whether the President would have inherent power as Commander in Chief to prescribe aggra- vating factors in capital cases. Once delegated that power by Congress, the President, acting in his constitutional office of Commander in Chief, had undoubted competency to prescribe those factors without further guidance. "The military constitutes a specialized community governed by a separate discipline from that of the civilian," Orloff v. Willoughby, 345 U. S. 83, 94 (1953), and the President can be entrusted to determine what limitations and conditions on punishments are best suited to preserve that special discipline. It is hard to deem lawless a delegation giving the Presi- dent broad discretion to prescribe rules on this subject. From the early days of the Republic, the President has had congressional authorization to intervene in cases where courts-martial decreed death. American Articles of War of 1806, Art. 65, reprinted in Winthrop 976, 982. It would be contradictory to say that Congress cannot further empower him to limit by prospective regulation the circumstances in which courts-martial can impose a death sentence. Specific authority to make rules for the limitation of capital punish- ment contributes more toward principled and uniform mili- tary sentencing regimes than does case-by-case intervention, and it provides greater opportunity for congressional over- sight and revision. Separation-of-powers principles are vindicated, not dis- served, by measured cooperation between the two political branches of the Government, each contributing to a lawful objective through its own processes. The delegation to the President as Commander in Chief of the authority to pre- 517US3$59L 02-07-99 19:16:27 PAGES OPINPGT 774 LOVING v. UNITED STATES Stevens, J., concurring scribe aggravating factors was in all respects consistent with these precepts, and the promulgation of RCM 1004 was well within the delegated authority. Loving's sentence was law- ful, and the judgment of the Court of Appeals for the Armed Forces is affirmed. It is so ordered. Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, concurring. As Justice Scalia correctly points out, petitioner has not challenged the power of the tribunal to try him for a capital offense. Post, at 775. It is important to add to this obser- vation that petitioner's first victim was a member of the Armed Forces on active duty and that the second was a re- tired serviceman who gave petitioner a ride from the bar- racks on the same night as the first killing. Brief for United States 5. On these facts, this does not appear to be a case in which petitioner could appropriately have raised the ques- tion whether the holding in Solorio v. United States, 483 U. S. 435 (1987), should be extended to reach the imposition of the death penalty for an offense that did not have the "service connection" required prior to the change in the law effected in that case. Id., at 451 (Stevens, J., concurring in judgment). The question whether a "service connection" requirement should obtain in capital cases is an open one both because Solorio was not a capital case, and because Solorio's review of the historical materials would seem to undermine any con- tention that a military tribunal's power to try capital of- fenses must be as broad as its power to try noncapital ones. See id., at 442­446. Moreover, the question is a substantial one because, when the punishment may be death, there are particular reasons to ensure that the men and women of the Armed Forces do not by reason of serving their country receive less protection than the Constitution provides for civilians. 517US3$59I 02-07-99 19:16:27 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 775 Opinion of Scalia, J. As a consequence of my conclusion that the "service connection" requirement has been satisfied here, I join not only the Court's analysis of the delegation issue, but also its disposition of the case. By joining in the Court's opinion, however, I do not thereby accept the proposition that our decision in Solorio must be understood to apply to cap- ital offenses. Nor do I understand the Court's decision to do so. That question, as I have explained, remains to be decided. Justice Scalia, with whom Justice O'Connor joins, concurring in part and concurring in the judgment. I join the Court's opinion, except that with respect to Part IV thereof I join only subparts B and C. The discussion of English history that features so promi- nently in the Court's discussion of Congress's power to grant the authority at issue to the President is in my view irrele- vant. To be sure, there is ample precedent in our cases for looking to the history of English courts-martial-but not where the question is of the sort before us today. We have surveyed that history for the purpose of establishing the per- missible scope of the jurisdiction of military tribunals over certain classes of defendants and offenses, see, e. g., Solorio v. United States, 483 U. S. 435, 442­446 (1987); Lee v. Madi- gan, 358 U. S. 228, 232 (1959); Reid v. Covert, 354 U. S. 1, 23­27 (1957) (plurality); see also Parker v. Levy, 417 U. S. 733, 745 (1974). This case does not present such a question. Petitioner does not assert that tradition establishes his of- fense to be, in its nature, beyond the jurisdiction of military courts, or that courts-martial are historically incapable of ad- judicating capital offenses. His arguments are altogether different: that Congress cannot authorize the President to establish "aggravating factors" designed to carry out the narrowing function that (we assume) is necessary for impo- sition of a capital sentence; and that, even if Congress can give the President authority to perform this function, such 517US3$59K 02-07-99 19:16:27 PAGES OPINPGT 776 LOVING v. UNITED STATES Opinion of Scalia, J. authorization has not been effected by the statutes upon which the Government relies. I do not see how consideration of those arguments profits from analysis of the historical sharing of power between Par- liament and the English throne. William and Mary's accept- ance of the Bill of Rights, and Parliament's enactment of the Mutiny Act of 1689, see ante, at 762­765, are presumably significant occurrences for students of the unwritten English constitution. Our written Constitution does not require us to trace out that history; it provides, in straightforward fash- ion, that "The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval Forces," U. S. Const., Art. I, § 8, cl. 14, and as the Court notes, see ante, at 767­768, it does not set forth any special limitation on Congress's assigning to the President the task of implementing the laws enacted pursuant to that power. And it would be extraordinary simply to infer such a special limitation upon tasks given to the President as Commander in Chief, where his inherent powers are clearly extensive. In drafting the Constitution, the Framers were not seek- ing to replicate in America the government of England; in- deed, they set their plan of government out in writing in part to make clear the ways in which it was different from the one it replaced. The Court acknowledges this, see ante, at 766, but nonetheless goes on to treat the form of English government as relevant to determining the limitations upon Clause 14's grant of power to Congress. I would leave this historical discussion aside. While it is true, as the Court demonstrates, that the scheme of assigned responsibility here conforms to English practices, that is so not because Clause 14 requires such conformity, but simply because what seemed like a good arrangement to Parliament has seemed like a good arrangement to Congress as well. I have one point of definition or conceptualization, which applies to those portions of the opinion that I have joined. While it has become the practice in our opinions to refer to 517US3$59K 02-07-99 19:16:28 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 777 Thomas, J., concurring in judgment "unconstitutional delegations of legislative authority" versus "lawful delegations of legislative authority," in fact the latter category does not exist. Legislative power is nondelegable. Congress can no more "delegate" some of its Article I power to the Executive than it could "delegate" some to one of its committees. What Congress does is to assign responsibil- ities to the Executive; and when the Executive undertakes those assigned responsibilities it acts, not as the "delegate" of Congress, but as the agent of the People. At some point the responsibilities assigned can become so extensive and so unconstrained that Congress has in effect delegated its legis- lative power; but until that point of excess is reached there exists, not a "lawful" delegation, but no delegation at all. Justice Thomas, concurring in the judgment. It is not clear to me that the extensive rules we have de- veloped under the Eighth Amendment for the prosecution of civilian capital cases, including the requirement of proof of aggravating factors, necessarily apply to capital prosecutions in the military, cf. Chappell v. Wallace, 462 U. S. 296, 300­302 (1983), and this Court has never so held, see Schick v. Reed, 419 U. S. 256, 260 (1974).* I am therefore not certain that this case even raises a delegation question, for if Loving can constitutionally be sentenced to death without proof of ag- gravating factors, he surely cannot claim that the President violated the Constitution by promulgating aggravating fac- tors that afforded more protection than that to which Loving is constitutionally entitled. Like the majority, I conclude that the Government prevails even if we assume, without deciding, that aggravating fac- tors are required in this context. There is abundant author- *Although the applicability of Furman v. Georgia, 408 U. S. 238 (1972), and its progeny to the military is an open question, the United States surprisingly makes no argument that the military is exempt from the byz- antine rules that we have imposed upon the States in their administration of the death penalty. 517US3$59N 02-07-99 19:16:28 PAGES OPINPGT 778 LOVING v. UNITED STATES Thomas, J., concurring in judgment ity for according Congress and the President sufficient de- ference in the regulation of military affairs to uphold the delegation here, and I see no need to resort to our nonmili- tary separation-of-powers and "delegation doctrine" cases in reaching this conclusion. I write separately to explain that by concurring in the judgment in this case, I take no position with respect to Congress' power to delegate authority or oth- erwise alter the traditional separation of powers outside the military context. In light of Congress' express constitutional authority to regulate the Armed Forces, see U. S. Const., Art. I, § 8, cl. 14, and the unique nature of the military's mission, we have afforded an unparalleled degree of deference to con- gressional action governing the military. See Rostker v. Goldberg, 453 U. S. 57, 64­65 (1981). "[I]t is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise," United States ex rel. Toth v. Quarles, 350 U. S. 11, 17 (1955), and this Court has recog- nized the limits on its own competence in advancing this core national interest, see Gilligan v. Morgan, 413 U. S. 1, 10 (1973). Mindful of the factors that "differentiate military society from civilian society," we have concluded that the Constitution permits Congress "to legislate both with greater breadth and with greater flexibility when prescrib- ing the rules by which the former shall be governed than it is when prescribing rules for the latter." Parker v. Levy, 417 U. S. 733, 756 (1974). This heightened deference ex- tends not only to congressional action but also to executive action by the President, who by virtue of his constitutional role as Commander in Chief, see U. S. Const., Art. II, § 2, cl. 1, possesses shared authority over military discipline. See Schlesinger v. Ballard, 419 U. S. 498, 510 (1975) ("The responsibility for determining how best our Armed Forces shall attend to th[e] business [of fighting or preparing to fight wars] rests with Congress and with the President") (citations omitted). See also Brown v. Glines, 444 U. S. 348, 360 (1980) 517US3$59N 02-07-99 19:16:28 PAGES OPINPGT Cite as: 517 U. S. 748 (1996) 779 Thomas, J., concurring in judgment ("Both Congress and this Court have found that the special character of the military requires civilian authorities to ac- cord military commanders some flexibility in dealing with matters that affect internal discipline and morale. In con- struing a statute that touches on such matters, therefore, courts must be careful not to `circumscribe the authority of military commanders to an extent never intended by Con- gress' ") (citations omitted). Under these and many simi- lar cases reviewing legislative and executive control of the military, the sentencing scheme at issue in this case, and the manner in which it was created, are constitutionally unassailable. On a separate point, I agree with Justice Scalia that the majority's extended analysis of the division of authority between the English Parliament and the Crown with regard to regulation of the military, see ante, at 759­766, has no relevance to this case. It is true that we frequently consult English history and common law in attempting to determine the content of constitutional provisions, but the majority fails to cite a single separation-of-powers case in which we have relied on the structure of the English Government in at- tempting to understand the governmental structure erected by the Framers of the Constitution. Nor does the majority cite any historical evidence, whether from the constitutional debates, the Federalist Papers, or some other source, that demonstrates that the Framers sought to embrace, or at least actively considered, the English system of shared power over the military. If the majority pointed to some basis for conducting the inquiry that it does, I might be will- ing to accept its analysis. Instead, the majority repeatedly substitutes ipse dixit for historical evidence. See, e. g., ante, at 761 ("From the English experience the Framers . . . knew the . . . parliamentary practice of delegation" and "[t]he Framers' choice in Clause 14 was to give Congress the same flexibility to exercise or share power"); ante, at 765 ("the Framers well knew this history"); ante, at 766 ("The histori- 517US3$59N 02-07-99 19:16:28 PAGES OPINPGT 780 LOVING v. UNITED STATES Thomas, J., concurring in judgment cal necessities and events of the English constitutional expe- rience . . . were familiar to [the Framers] and inform our understanding of the purpose and meaning of constitutional provisions"). I have no doubt that the Framers were well versed in English history. But it is too simplistic for pur- poses of constitutional analysis to draw conclusions about the allocation of constitutional authority among the branches of the United States Government from mere speculation about the Framers' familiarity with English military history and the significance that they attached to it. 517us3$60Z 02-05-99 13:46:34 PAGES OPINPGT OCTOBER TERM, 1995 781 Syllabus AUCIELLO IRON WORKS, INC. v. NATIONAL LABOR RELATIONS BOARD certiorari to the united states court of appeals for the first circuit No. 95­668. Argued April 22, 1996-Decided June 3, 1996 The day after petitioner Auciello Iron Works's outstanding contract offer was accepted by its employees' collective-bargaining representative (Union), Auciello disavowed the agreement because of its good-faith doubt, based on knowledge acquired before the offer's acceptance, that a majority of its employees supported the Union. The National Labor Relations Board ruled, inter alia, that Auciello's withdrawal from it was an unfair labor practice in violation of the National Labor Relations Act and ordered that the agreement be reduced to a formal written instru- ment. The First Circuit enforced the order as reasonable. Held: The Board reasonably concluded that an employer commits an un- fair labor practice when it disavows a collective-bargaining agreement because of a good-faith doubt about a union's majority status at the time the contract was made, when the doubt arises from facts known to the employer before the union accepted its contract offer. Pp. 785­792. (a) In its efforts to achieve the Act's object of industrial peace and stability fostered by collective-bargaining relationships, see, e. g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 38, the Board has held that a union is entitled to, inter alia, a conclusive presumption of majority status during a collective-bargaining agreement's term, up to three years, see, e. g., NLRB v. Burns Int'l Security Services, Inc., 406 U. S. 272, 290, n. 12. Upon the contract's expiration, the employer may rebut the presumption of majority status by showing that it has a good-faith doubt, founded on a sufficient objective basis, of the union's majority support. NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 778. Auciello's assertion that an employer may raise the latter defense even after a contract period has apparently begun to run upon a union's acceptance of an outstanding offer is rejected. Pp. 785­787. (b) The same need for repose that first prompted the Board to adopt the rule presuming a union's majority status during its collective- bargaining agreement's term also led the Board in this case to rule out an exception for the benefit of an employer with doubts arising from facts antedating the contract. The Board's judgment in the matter is entitled to prevail. Auciello's argument for case-by-case determina- tions of the appropriate time for asserting a good-faith doubt in place of 517us3$60Z 02-05-99 13:46:34 PAGES OPINPGT 782 AUCIELLO IRON WORKS, INC. v. NLRB Opinion of the Court the Board's bright-line rule cutting off the opportunity at the moment of apparent contract formation fails to point up anything unreasonable in the Board's position. Its approach generally allows companies an adequate chance to act on their preacceptance doubts before contract formation, and Auciello's view would encourage bad-faith bargaining by employers. The Board could reasonably conclude that giving employ- ers flexibility in raising their good-faith doubts would not be worth skewing bargaining relationships by such one-sided leverage, and the fact that any collective-bargaining agreement might be vulnerable to such a postformation challenge would hardly serve the Act's goal of achieving industrial peace by promoting stable collective-bargaining relationships. Moreover, rejection of the Board's position is not com- pelled by the statutory right of employees to bargain collectively through representatives of their own choosing and to refrain from doing so. The Board is entitled to suspicion when faced with an employer's benevolence as its workers' champion against their certified union, and there is nothing unreasonable in giving a short leash to an employer as vindicator of its employees' organizational freedom. Pp. 787­790. (c) Garment Workers v. NLRB, 366 U. S. 731, 738­739, does not com- pel reversal; its rule concerning recognition agreements is not inconsist- ent with this decision. The Board reasonably found an employer's pre- contractual, good-faith doubt inadequate to support an exception to the conclusive presumption arising at the moment a collective-bargaining contract offer has been accepted. Pp. 791­792. 60 F. 3d 24, affirmed. Souter, J., delivered the opinion for a unanimous Court. John D. O'Reilly III argued the cause and filed a brief for petitioner. Richard H. Seamon argued the cause for respondent. With him on the brief were Solicitor General Days, Deputy Solicitor General Wallace, Linda Sher, Norton J. Come, and John Emad Arbab.* Justice Souter delivered the opinion of the Court. The question here is whether an employer may disavow a collective-bargaining agreement because of a good-faith *Jonathan Hiatt, Marsha Berzon, David Silberman, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. 517us3$60M 02-05-99 13:46:34 PAGES OPINPGT Cite as: 517 U. S. 781 (1996) 783 Opinion of the Court doubt about a union's majority status at the time the con- tract was made, when the doubt arises from facts known to the employer before its contract offer had been accepted by the union. We hold that the National Labor Relations Board (NLRB or Board) reasonably concluded that an em- ployer challenging an agreement under these circumstances commits an unfair labor practice in violation of §§ 8(a)(1) and (5) of the National Labor Relations Act (NLRA or Act), 49 Stat. 452, 453, as amended, 29 U. S. C. §§ 158(a)(1) and (5). I Petitioner Auciello Iron Works of Hudson, Massachusetts, had 23 production and maintenance employees during the period in question. After a union election in 1977, the NLRB certified Shopmen's Local No. 501, a/w International Association of Bridge, Structural, and Ornamental Iron Workers, AFL­CIO (Union), as the collective-bargaining representative of Auciello's employees. Over the following years, the company and the Union were able to negotiate a series of collective-bargaining agreements, one of which ex- pired on September 25, 1988. Negotiations for a new one were unsuccessful throughout September and October 1988, however, and when Auciello and the Union had not made a new contract by October 14, 1988, the employees went on strike. Negotiations continued, nonetheless, and, on No- vember 17, 1988, Auciello presented the Union with a com- plete contract proposal. On November 18, 1988, the picket- ing stopped, and nine days later, on a Sunday evening, the Union telegraphed its acceptance of the outstanding offer. The very next day, however, Auciello told the Union that it doubted that a majority of the bargaining unit's employees supported the Union, and for that reason disavowed the collective-bargaining agreement and denied it had any duty to continue negotiating. Auciello traced its doubt to knowl- edge acquired before the Union accepted the contract offer, including the facts that 9 employees had crossed the picket 517us3$60M 02-05-99 13:46:34 PAGES OPINPGT 784 AUCIELLO IRON WORKS, INC. v. NLRB Opinion of the Court line, that 13 employees had given it signed forms indicating their resignation from the Union, and that 16 had expressed dissatisfaction with the Union. In January 1989, the Board's General Counsel issued an administrative complaint charging Auciello with violation of §§ 8(a)(1) and (5) of the NLRA.1 An Administrative Law Judge found that a contract existed between the parties and that Auciello's withdrawal from it violated the Act. 303 N. L. R. B. 562 (1991). The Board affirmed the Adminis- trative Law Judge's decision 2; it treated Auciello's claim of 1 Section 8(a) of the NLRA provides: "It shall be an unfair labor practice for an employer- "(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; . . . . . "(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title." 29 U. S. C. § 158(a). Section 7 of the Act provides: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as au- thorized in section 158(a)(3) of this title." 29 U. S. C. § 157. 2 The Board has developed a number of criteria to assess whether a collective-bargaining contract has been formed, see, e. g., Appalachian Shale Products Co., 121 N. L. R. B. 1160 (1958), which may not always coincide with those that would govern in the general area of contract law, see Ben Franklin Nat. Bank, 278 N. L. R. B. 986, 993­994 (1986). We accept for purposes of deciding this case the Board's conclusion that a contract was formed here within the meaning of the Act. Our review of this case is thus limited to the narrow question whether an employer may withdraw from a collective-bargaining contract once formed when it pos- sessed enough evidence to assert a good-faith doubt about the union's ma- jority status at the time of formation. Auciello has suggested that the contract itself was invalid ab initio because the Union in fact lacked majority support at the time of accept- 517us3$60M 02-05-99 13:46:34 PAGES OPINPGT Cite as: 517 U. S. 781 (1996) 785 Opinion of the Court good-faith doubt as irrelevant and ordered Auciello to reduce the collective-bargaining agreement to a formal written in- strument. Ibid. But when the Board applied to the Court of Appeals for the First Circuit for enforcement of its order, the Court of Appeals declined on the ground that the Board had not adequately explained its refusal to consider Auciel- lo's defense of good-faith doubt about the Union's majority status. 980 F. 2d 804 (1992). On remand, the Board issued a supplemental opinion to justify its position, 317 N. L. R. B. 364 (1995), and the Court of Appeals thereafter enforced the order as resting on a "policy choice [both] . . . reasonable and . . . quite persuasive." 60 F. 3d 24, 27 (1995). We granted certiorari, 516 U. S. 1086 (1996), and now affirm. II A The object of the National Labor Relations Act is indus- trial peace and stability, fostered by collective-bargaining agreements providing for the orderly resolution of labor disputes between workers and employees. See 29 U. S. C. § 141(b); Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 38 (1987) (Fall River Dyeing). To such ends, the Board has adopted various presumptions about the existence of majority support for a union within a bargaining unit, the ance. Because the substantiation required to make this showing is greater than that required to assert a good-faith doubt, see NLRB v. Cur- tin Matheson Scientific, Inc., 494 U. S. 775, 788, n. 8 (1990), the Board has not taken a position on whether such a claim could excuse an employer's decision to repudiate an otherwise valid contract and disavow its duty to bargain with the union. Brief for Respondent 26, n. 7. Auciello concedes that it failed to advance this claim in its answer to the General Counsel's complaint, Tr. of Oral Arg. 6, 28, the Board never considered this question, and Auciello sought certiorari review only of the question whether an em- ployer is bound by a union's acceptance in this context when "the Em- ployer had a reasonable basis for a good faith doubt." Pet. for Cert. i. Accordingly, we conclude that this question is not properly before us and decline to address it. 517us3$60M 02-05-99 13:46:34 PAGES OPINPGT 786 AUCIELLO IRON WORKS, INC. v. NLRB Opinion of the Court precondition for service as its exclusive representative. Cf. id., at 37­39. The first two are conclusive presumptions. A union "usually is entitled to a conclusive presumption of ma- jority status for one year following" Board certification as such a representative. Id., at 37. A union is likewise enti- tled under Board precedent to a conclusive 3 presumption of majority status during the term of any collective-bargaining agreement, up to three years. See NLRB v. Burns Int'l Security Services, Inc., 406 U. S. 272, 290, n. 12 (1972); see generally R. Gorman, Basic Text on Labor Law: Unionization and Collective Bargaining § 9, pp. 54­59 (1976). "These pre- sumptions are based not so much on an absolute certainty that the union's majority status will not erode," Fall River Dyeing, 482 U. S., at 38, as on the need to achieve "stability in collective-bargaining relationships." Ibid. (internal quo- tation marks omitted). They address our fickle nature by "enabl[ing] a union to concentrate on obtaining and fairly administering a collective-bargaining agreement" without worrying about the immediate risk of decertification and by "remov[ing] any temptation on the part of the employer to avoid good-faith bargaining" in an effort to undermine union support. Ibid. There is a third presumption, though not a conclusive one. At the end of the certification year or upon expiration of the collective-bargaining agreement, the presumption of major- ity status becomes a rebuttable one. See NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 778 (1990); see n. 6, infra. Then, an employer may overcome the presumption (when, for example, defending against an unfair labor prac- tice charge) "by showing that, at the time of [its] refusal to bargain, either (1) the union did not in fact enjoy majority 3 This presumption may be overcome only in unusual circumstances, see, e. g., Brooks v. NLRB, 348 U. S. 96, 98­99 (1954) (union dissolution, inter alia); 3 T. Kheel, Labor Law § 13A.04[5], p. 13A­26 (1995); R. Gorman, Basic Text on Labor Law: Unionization and Collective Bargaining § 9, pp. 56­57 (1976), none of which is present here. 517us3$60M 02-05-99 13:46:34 PAGES OPINPGT Cite as: 517 U. S. 781 (1996) 787 Opinion of the Court support, or (2) the employer had a `good-faith' doubt, founded on a sufficient objective basis, of the union's majority sup- port." Curtin Matheson, supra, at 778 (emphasis in origi- nal).4 Auciello asks this Court to hold that it may raise the latter defense even after a collective-bargaining contract pe- riod has apparently begun to run upon a union's acceptance of an employer's outstanding offer. B The same need for repose that first prompted the Board to adopt the rule presuming the union's majority status dur- ing the term of a collective-bargaining agreement also led the Board to rule out an exception for the benefit of an em- ployer with doubts arising from facts antedating the con- tract. The Board said that such an exception would allow an employer to control the timing of its assertion of good- faith doubt and thus to " `sit' on that doubt and . . . raise it after the offer is accepted." 317 N. L. R. B., at 370. The Board thought that the risks associated with giving employ- ers such "unilatera[l] control [over] a vital part of the collective-bargaining process," ibid., would undermine the stability of the collective-bargaining relationship, id., at 374, and thus outweigh any benefit that might in theory follow from vindicating a doubt that ultimately proved to be sound. The Board's judgment in the matter is entitled to prevail. To affirm its rule of decision in this case, indeed, there is no need to invoke the full measure of the "considerable defer- 4 Auciello maintains that Curtin Matheson requires reversal here since it appears that the employer in that case asserted its good-faith doubt after the union's acceptance of the contract offer. Brief for Petitioner 19­21. But the case is not authority on the issue of timing. The question presented was whether the Board "in evaluating an employer's claim that it had a reasonable basis for doubting a union's majority support, must presume that striker replacements oppose the union." Curtin Matheson, 494 U. S., at 777 (emphasis in original). We did not discuss or consider whether the timing of the employer's assertion should affect the outcome of that case, and the decision does not answer that question. 517us3$60M 02-05-99 13:46:34 PAGES OPINPGT 788 AUCIELLO IRON WORKS, INC. v. NLRB Opinion of the Court ence" that the Board is due, NLRB v. Curtin Matheson Sci- entific, Inc., supra, at 786, by virtue of its charge to develop national labor policy, Beth Israel Hospital v. NLRB, 437 U. S. 483, 500­501 (1978), through interstitial rulemaking that is "rational and consistent with the Act," Curtin Matheson, supra, at 787. It might be tempting to think that Auciello's doubt was expressed so soon after the apparent contract formation that little would be lost by vindicating that doubt and wiping the contractual slate clean, if in fact the company can make a convincing case for the doubt it claims. On this view, the loss of repose would be slight. But if doubts about the union's majority status would justify repudiating a contract one day after its ostensible formation, why should the same doubt not serve as well a year into the contract's term? Au- ciello implicitly agrees on the need to provide some cutoff, but argues that the limit should be expressed as a "reason- able time" to repudiate the contract. Brief for Petitioner 26­32. That is, it seeks case-by-case determinations of the appropriate time for asserting a good-faith doubt in place of the Board's bright-line rule cutting off the opportunity at the moment of apparent contract formation. Auciello's desire is natural, but its argument fails to point up anything unrea- sonable in the Board's position. The Board's approach generally allows companies an ade- quate chance to act on their preacceptance doubts before contract formation, just as Auciello could have acted effec- tively under the Board's rule in this case. Auciello knew that the picket line had been crossed and that a number of its employees had expressed dissatisfaction with the Union at least nine days before the contract's acceptance, and all of the resignation forms Auciello received were dated at least five days before the acceptance date. During the week pre- ceding the apparent formation of the contract, Auciello had at least three alternatives to doing nothing. It could have withdrawn the outstanding offer and then, like its employ- 517us3$60M 02-05-99 13:46:34 PAGES OPINPGT Cite as: 517 U. S. 781 (1996) 789 Opinion of the Court ees, petitioned for a representation election. See 29 U. S. C. § 159(c)(1)(A)(ii) (employee petitions); § 159(c)(1)(B) (employer petitions); NLRB v. Financial Institution Employees, 475 U. S. 192, 198 (1986).5 "[I]f the Board determines, after in- vestigation and hearing, that a question of representation exists, it directs an election by secret ballot and certifies the result." Ibid. Following withdrawal, it could also have re- fused to bargain further on the basis of its good-faith doubt, leaving it to the Union to charge an unfair labor practice, against which it could defend on the basis of the doubt. Cf. Curtin Matheson, 494 U. S., at 778. And, of course, it could have withdrawn its offer to allow it time to investigate while it continued to fulfill its duty to bargain in good faith with the Union. The company thus had generous opportunities to avoid the presumption before the moment of acceptance. There may, to be sure, be cases where the opportunity re- quires prompt action,6 but labor negotiators are not the least nimble, and the Board could reasonably have thought the price of making more time for the sluggish was too high, since it would encourage bad-faith bargaining. As Auciello would have it, any employer with genuine doubt about a union's hold on its employees would be invited to go right on bargaining, with the prospect of locking in a favorable con- tract that it could, if it wished, then challenge. Here, for example, if Auciello had acted before the Union's telegram by withdrawing its offer and declining further negotiation based on its doubt (or petitioning for decertification), flames would have been fanned, and if it ultimately had been obliged 5 We assume, without deciding, that the withdrawal of an offer under these circumstances could not serve as a basis for the filing of an unfair labor practice complaint, which might trigger the "blocking charge" rule that the NLRB concedes would be implicated by an employer's unlawful withdrawal of recognition. See Brief for Respondent 31, n. 10. 6 We note that in the unusual circumstance in which evidence leading the employer to harbor such a doubt arises at the same time the union accepts the offer, the Board has agreed to examine such occurrences on a case-by-case basis. 317 N. L. R. B. 364, 374­375 (1995). 517us3$60M 02-05-99 13:46:34 PAGES OPINPGT 790 AUCIELLO IRON WORKS, INC. v. NLRB Opinion of the Court to bargain further, a favorable agreement would have been more difficult to obtain. But by saving its challenge until after a contract had apparently been formed, it could not end up with a worse agreement than the one it had. The Board could reasonably say that giving employers some flexibility in raising their scruples would not be worth skewing bar- gaining relationships by such one-sided leverage, and the fact that any collective-bargaining agreement might be vulnera- ble to such a postformation challenge would hardly serve the Act's goal of achieving industrial peace by promoting stable collective-bargaining relationships. Cf. Fall River Dyeing, 482 U. S., at 38­39; Franks Bros. Co. v. NLRB, 321 U. S. 702, 705 (1944). Nor do we find anything compelling in Auciello's conten- tion that its employees' statutory right "to bargain collec- tively through representatives of their own choosing" and to refrain from doing so, 29 U. S. C. § 157, compels us to reject the Board's position. Although we take seriously the Act's command to respect "the free choice of employees" as well as to "promot[e] stability in collective-bargaining relation- ships," Fall River Dyeing, supra, at 38 (internal quotation marks omitted), we have rejected the position that employ- ers may refuse to bargain whenever presented with evidence that their employees no longer support their certified union. "To allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not condu- cive to [industrial peace], it is inimical to it." Brooks v. NLRB, 348 U. S. 96, 103 (1954). The Board is accordingly entitled to suspicion when faced with an employer's benevo- lence as its workers' champion against their certified union, which is subject to a decertification petition from the work- ers if they want to file one. There is nothing unreasonable in giving a short leash to the employer as vindicator of its employees' organizational freedom. 517us3$60M 02-05-99 13:46:34 PAGES OPINPGT Cite as: 517 U. S. 781 (1996) 791 Opinion of the Court C Merits aside, Auciello also claims that the precedent of Garment Workers v. NLRB, 366 U. S. 731 (1961), compels reversal, but it does not. In Garment Workers, we held that a bona fide but mistaken belief in a union's majority status cannot support an employer's agreement purporting to rec- ognize a union newly organized but as yet uncertified. We upheld the Board's rule out of concern that an employer and a union could make a deal giving the union " `a marked ad- vantage over any other [union] in securing the adherence of employees,' " id., at 738 (quoting NLRB v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261, 267 (1938)), thereby distorting the process by which employees elect the bargain- ing agent of their choice. 366 U. S., at 738­739. Here, in contrast, the Union continued to enjoy a rebuttable presump- tion of majority support, and the bargaining unit employees had ample opportunity to initiate decertification of the Union but apparently chose not to do so. With entire consistency, the Board may deny employers the power gained from recog- nizing a union, even when it flows from a good-faith but mis- taken belief in a newly organized union's majority status, and at the same time deny them the power to disturb collective- bargaining agreements based on a doubt (without more) that its employees' bargaining agent has retained majority status. Good-faith belief can neither force a union's precipitate rec- ognition nor destroy a recognized union's contracting author- ity after the fact by intentional delay. There is, indeed, a symmetry in the two positions. * * * We hold that the Board reasonably found an employer's precontractual, good-faith doubt inadequate to support an exception to the conclusive presumption arising at the mo- ment a collective-bargaining contract offer has been ac- 517us3$60M 02-05-99 13:46:34 PAGES OPINPGT 792 AUCIELLO IRON WORKS, INC. v. NLRB Opinion of the Court cepted. We accordingly affirm the judgment of the Court of Appeals for the First Circuit. It is so ordered. 517us3$61Z 02-05-99 16:37:01 PAGES OPINPGT OCTOBER TERM, 1995 793 Syllabus RICHARDS et al. v. JEFFERSON COUNTY, ALABAMA, et al. certiorari to the supreme court of alabama No. 95­386. Argued March 26, 1996-Decided June 10, 1996 Petitioners, who are privately employed in Jefferson County, filed a state- court class action claiming that the county's occupation tax violates the Federal and Alabama Constitutions. In granting the county partial summary judgment, the trial court found that petitioners' state claims were barred by a prior adjudication of the tax in an action brought by Birmingham's acting finance director and the city itself, consolidated with a suit by three county taxpayers, see Bedingfield v. Jefferson County, 527 So. 2d 1270, but that petitioners' federal claims had not been decided in that case. The county and respondent intervenor argued on appeal that the federal claims were also barred. The State Supreme Court agreed, concluding that res judicata applied because petitioners were adequately represented in the Bedingfield action. Held: Because petitioners received neither notice of, nor sufficient repre- sentation in, the Bedingfield litigation, that adjudication, as a matter of federal due process, may not bind them and thus cannot bar them from challenging an allegedly unconstitutional deprivation of their property. Pp. 797­805. (a) The traditional rule that an extreme application of state-law res judicata principles may be inconsistent with the Federal Constitution, see Postal Telegraph Cable Co. v. Newport, 247 U. S. 464, 476, reflects the general consensus that one is not bound by a judgment in litigation to which he is not a party. Of course, there is an exception from these principles when there is "privity" between a party to the second case and a party who is bound by an earlier judgment. Pp. 797­799. (b) Because the Bedingfield parties gave petitioners no notice that a suit was pending which would conclusively resolve their legal rights, that proceeding would have a binding effect on them, as absent parties, only if it were so devised and applied as to ensure that those present were of the same class as those absent and that the litigation was so conducted as to ensure the full and fair consideration of the common issue. Hansberry v. Lee, 311 U. S. 32, 43. Because the Bedingfield ac- tion plainly does not fit this description, there is no reason to suppose that the court therein took care to protect petitioners' interests in the manner suggested in Hansberry or that the Bedingfield plaintiffs under- stood their suit to be on behalf of absent taxpayers. Those plaintiffs 517us3$61Z 02-05-99 16:37:01 PAGES OPINPGT 794 RICHARDS v. JEFFERSON COUNTY Opinion of the Court did not provide representation sufficient to make up for the fact that petitioners neither participated in, nor had the opportunity to partici- pate in, the earlier action. Pp. 799­802. (c) This Court may assume that if petitioners had relied on their tax- payer status to complain about an alleged misuse of public funds or about other public action having only an indirect impact on their inter- ests, the State would have enjoyed wide latitude in limiting their oppor- tunity to make their case. However, because petitioners present a fed- eral constitutional challenge to the State's attempt to levy personal funds, the Court is not persuaded that the nature of their actions per- mits it to deviate from the traditional rule that an extreme application of state-law res judicata principles violates the Federal Constitution. Pp. 802­805. 662 So. 2d 1127, reversed and remanded. Stevens, J., delivered the opinion for a unanimous Court. William J. Baxley argued the cause for petitioners. With him on the briefs was Joel E. Dillard. William M. Slaughter argued the cause for respondents. With him on the brief was Richard H. Walston.* Justice Stevens delivered the opinion of the Court. In Hansberry v. Lee, 311 U. S. 32, 37 (1940), we held that it would violate the Due Process Clause of the Fourteenth Amendment to bind litigants to a judgment rendered in an earlier litigation to which they were not parties and in which they were not adequately represented. The decision of the Supreme Court of Alabama that we review today presents us with the same basic question in a somewhat different context. I Jason Richards and Fannie Hill (petitioners) are privately employed in Jefferson County, Alabama. In 1991 they filed a complaint in the Federal District Court challenging the validity of the occupation tax imposed by Jefferson County *Richard Ruda and James I. Crowley filed a brief for the National Asso- ciation of Counties et al. as amici curiae urging affirmance. 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT Cite as: 517 U. S. 793 (1996) 795 Opinion of the Court Ordinance 1120, which had been adopted in 1987. That ac- tion was dismissed as barred by the Tax Injunction Act, 28 U. S. C. § 1341.1 They then commenced this action in the Circuit Court of Jefferson County. Petitioners represent a class of all nonfederal employees subject to the county's tax.2 Petitioners alleged that the tax, which contains a lengthy list of exemptions, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and similar provisions of the Alabama Constitu- tion. Because $10 million of the annual proceeds from the county tax have been pledged to the Birmingham-Jefferson Civic Center for a period of 20 years, the court permitted the center to intervene and support Jefferson County's de- fense of its tax. The county moved for summary judgment on the ground that petitioners' claims were barred by a prior adjudication of the tax in an earlier action brought by the acting director of finance for the city of Birmingham and the city itself. That earlier action had been consolidated for trial with a separate suit brought by three county taxpayers, and the Supreme Court of Alabama upheld the tax in the result- ing appeal. See Bedingfield v. Jefferson County, 527 So. 2d 1270 (1988). After examining the course of this prior litiga- tion, the trial court granted the county's motion for summary judgment as to the state constitutional claims, but refused to do so as to the federal claims because they had not been decided by either the trial court or the Alabama Supreme Court in Bedingfield. On appeal, the county argued that the federal claims as well as the state claims were barred by the adjudication in 1 Richards v. Jefferson County, 789 F. Supp. 369 (ND Ala.), affirmance order, 983 F. 2d 237 (CA11 1992). 2 They were joined in the action by George Dykes and Joan Dykes, em- ployees of the Federal Government who also work in the county. The Dykes represent a separate class of federal employees whose claims are not before us. 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT 796 RICHARDS v. JEFFERSON COUNTY Opinion of the Court Bedingfield. The Alabama Supreme Court agreed. The majority opinion noted that in Alabama, as in most States, a prior judgment on the merits rendered by a court of compe- tent jurisdiction precludes the relitigation of a claim if there is a "substantial identity of the parties" and if the "same cause of action" is presented in both suits. 662 So. 2d 1127, 1128 (1995). Moreover, the court explained, the prior judg- ment is generally " `res judicata not only as to all matters litigated and decided by it, but as to all relevant issues which could have been but were not raised and litigated in the suit.' " Ibid. (quoting Heiser v. Woodruff, 327 U. S. 726, 735 (1946)). The Alabama Supreme Court concluded that even though the opinion in Bedingfield did not mention any federal issue, the judgment in that case met these requirements. The court gave three reasons for this conclusion: (1) The com- plaints in the earlier case had alleged that the county tax violated the Equal Protection Clause of the Fourteenth Amendment and an equal protection issue had been argued in the appellate briefs, 662 So. 2d, at 1129; (2) the taxpayers in Bedingfield adequately represented petitioners because their respective interests were "essentially identical," 662 So. 2d, at 1130; and (3) in pledging tax revenues and issuing bonds in 1989, the county and the intervenor "could have relied on Bedingfield as authoritatively establishing that the county occupational tax was not unconstitutional for the reasons asserted by the Bedingfield plaintiffs," 662 So. 2d, at 1130. Justice Maddox dissented. He agreed with the trial judge that no federal constitutional claim had been adjudicated in Bedingfield. 662 So. 2d, at 1130­1131. Moreover, he con- cluded that the mere fact that the theory advanced by the petitioners in this case could have been asserted in Beding- field constituted an insufficient reason for barring this action. 662 So. 2d, at 1131­1132. 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT Cite as: 517 U. S. 793 (1996) 797 Opinion of the Court We now conclude that the State Supreme Court's holding that petitioners are bound by the adjudication in Bedingfield deprived them of the due process of law guaranteed by the Fourteenth Amendment.3 II State courts are generally free to develop their own rules for protecting against the relitigation of common issues or the piecemeal resolution of disputes. Postal Telegraph Cable Co. v. Newport, 247 U. S. 464, 475 (1918). We have long held, however, that extreme applications of the doctrine of res judicata may be inconsistent with a federal right that is "fundamental in character." Id., at 476.4 3 After granting the petition to consider both the equal protection chal- lenge to the tax scheme, and the due process challenge to the Alabama Supreme Court's conclusion that their claims were barred by the doctrine of res judicata, we entered an order dismissing the writ to the extent that it included the equal protection question and directing the parties to ad- dress at oral argument only the question whether the application of res judicata afforded petitioners due process. 516 U. S. 983 (1996). Because petitioners raised their due process challenge to the application of res judi- cata in their application for rehearing to the Alabama Supreme Court, that federal issue has been preserved for our review. See PruneYard Shop- ping Center v. Robins, 447 U. S. 74, 85­87, n. 9 (1980). 4 "The doctrine of res judicata rests at bottom upon the ground that the party to be affected, or some other with whom he is in privity, has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction. Southern Pacific R. R. Co. v. United States, 168 U. S. 1, 48; Greenleaf Ev., §§ 522­523. The opportunity to be heard is an essential requisite of due process of law in judicial proceedings. Windsor v. McVeigh, 93 U. S. 274, 277; Louisville & Nashville R. R. Co. v. Schmidt, 177 U. S. 230, 236; Simon v. Craft, 182 U. S. 427, 436. And as a State may not, consistently with the Fourteenth Amendment, enforce a judgment against a party named in the proceedings without a hearing or an opportunity to be heard (Pennoyer v. Neff, 95 U. S. 714, 733; Scott v. McNeal, 154 U. S. 34, 46; Coe v. Armour Fertilizer Works, 237 U. S. 413, 423), so it cannot, without disregarding the requirement of due process, give a conclusive effect to a prior judgment against one who is neither a party nor in privity with a party therein." 247 U. S., at 476. 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT 798 RICHARDS v. JEFFERSON COUNTY Opinion of the Court The limits on a state court's power to develop estoppel rules reflect the general consensus " `in Anglo-American ju- risprudence that one is not bound by a judgment in perso- nam in a litigation in which he is not designated as a party or to which he has not been made a party by service of proc- ess.' Hansberry v. Lee, 311 U. S. 32, 40 (1940). . . . This rule is part of our `deep-rooted historic tradition that every- one should have his own day in court.' 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4449, p. 417 (1981)." Martin v. Wilks, 490 U. S. 755, 761­ 762 (1989). As a consequence, "[a] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings." Id., at 762; Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U. S. 313, 329 (1971). Of course, these principles do not always require one to have been a party to a judgment in order to be bound by it. Most notably, there is an exception when it can be said that there is "privity" between a party to the second case and a party who is bound by an earlier judgment. For example, a judgment that is binding on a guardian or trustee may also bind the ward or the beneficiaries of a trust. Moreover, al- though there are clearly constitutional limits on the "privity" exception, the term "privity" is now used to describe various relationships between litigants that would not have come within the traditional definition of that term. See generally Restatement (Second) of Judgments, ch. 4 (1980) (Parties and Other Persons Affected by Judgments). In addition, as we explained in Wilks: "We have recognized an exception to the general rule when, in certain limited circumstances, a person, al- though not a party, has his interests adequately repre- sented by someone with the same interests who is a party. See Hansberry v. Lee, 311 U. S. 32, 41­42 (1940) 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT Cite as: 517 U. S. 793 (1996) 799 Opinion of the Court (`class' or `representative' suits); Fed. Rule Civ. Proc. 23 (same); Montana v. United States, 440 U. S. 147, 154­155 (1979) (control of litigation on behalf of one of the parties in the litigation). Additionally, where a special reme- dial scheme exists expressly foreclosing successive liti- gation by nonlitigants, as for example in bankruptcy or probate, legal proceedings may terminate pre-existing rights if the scheme is otherwise consistent with due process. See NLRB v. Bildisco & Bildisco, 465 U. S. 513, 529­530, n. 10 (1984) (`[P]roof of claim must be pre- sented to the Bankruptcy Court . . . or be lost'); Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478 (1988) (nonclaim statute terminating unsubmitted claims against the estate)." 490 U. S., at 762, n. 2. Here, the Alabama Supreme Court concluded that res ju- dicata applied because petitioners were adequately repre- sented in the Bedingfield action. 662 So. 2d, at 1130. We now consider the propriety of that determination. III We begin by noting that the parties to the Bedingfield case failed to provide petitioners with any notice that a suit was pending which would conclusively resolve their legal rights. That failure is troubling because, as we explained in Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950), the right to be heard ensured by the guarantee of due process "has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." Id., at 314; Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 812 (1985); Schroeder v. City of New York, 371 U. S. 208, 212­213 (1962). Nevertheless, respondents ask us to excuse the lack of notice on the ground that petitioners, as the Alabama 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT 800 RICHARDS v. JEFFERSON COUNTY Opinion of the Court Supreme Court concluded, were adequately represented in Bedingfield.5 Our answer is informed by our decision in Hansberry v. Lee, 311 U. S., at 40­41. There, certain property owners brought suit to enforce a restrictive covenant that purported to forbid the sale or lease of any property within a defined area to "any person of the colored race." Id., at 37­38. By its terms the covenant was not effective unless signed by the owners of 95 per cent of frontage in the area. At trial, the defendants proved that the signers of the covenant owned only about 54 percent of the frontage. Nevertheless, the trial court held that the covenant was enforceable because the issue had been resolved in a prior suit in which the par- ties had stipulated that the owners of 95 percent had signed. Id., at 38 (referring to Burke v. Kleiman, 277 Ill. App. 519 (1934)). Despite the fact that the stipulation was untrue, the Illi- nois Supreme Court held that the second action was barred by res judicata. See Lee v. Hansberry, 372 Ill. 369, 24 N. E. 2d 37 (1939). Because the plaintiff in the earlier case had alleged that she was proceeding "on behalf of herself and on behalf of all other property owners in the district," id., at 372, 24 N. E. 2d, at 39, the Illinois Supreme Court concluded that all members of that "class," including the defendants challenging the stipulation in the present action, were bound by the decree. We reversed. We recognized the "familiar doctrine . . . that members of a class not present as parties to the litigation may be bound by the judgment where they are in fact adequately repre- 5 Of course, mere notice may not suffice to preserve one's right to be heard in a case such as the one before us. The general rule is that "[t]he law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger." Chase Nat. Bank v. Norwalk, 291 U. S. 431, 441 (1934); but cf. Penn- Central Merger and N & W Inclusion Cases, 389 U. S. 486, 505, n. 4 (1968) (noting that absent parties were invited to intervene by the court). 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT Cite as: 517 U. S. 793 (1996) 801 Opinion of the Court sented by parties who are present, or . . . the relation- ship between the parties present and those who are absent is such as legally to entitle the former to stand in judgment for the latter." Hansberry, 311 U. S., at 42­43. We con- cluded, however, that because the interests of those class members who had been a party to the prior litigation were in conflict with the absent members who were the defendants in the subsequent action, the doctrine of representation of absent parties in a class suit could not support the decree. Even assuming that our opinion in Hansberry may be read to leave open the possibility that in some class suits adequate representation might cure a lack of notice, but cf., id., at 40; Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 177 (1974); Mul- lane v. Central Hanover Bank & Trust Co., 339 U. S., at 319, it may not be read to permit the application of res judicata here. Our opinion explained that a prior proceeding, to have binding effect on absent parties, would at least have to be "so devised and applied as to insure that those present are of the same class as those absent and that the litigation is so conducted as to insure the full and fair consideration of the common issue." 311 U. S., at 43; cf. Phillips Petroleum Co. v. Shutts, 472 U. S., at 811­812. It is plain that the Bed- ingfield action, like the prior proceeding in Hansberry itself, does not fit such a description. The Alabama Supreme Court concluded that the "taxpay- ers in the Bedingfield action adequately represented the in- terests of the taxpayers here," 662 So. 2d, at 1130 (emphasis added), but the three county taxpayers who were parties in Bedingfield did not sue on behalf of a class; their pleadings did not purport to assert any claim against or on behalf of any nonparties; and the judgment they received did not pur- port to bind any county taxpayers who were nonparties. That the acting director of finance for the city of Birmingham also sued in his capacity as both an individual taxpayer and a public official does not change the analysis. Even if we were to assume, as the Alabama Supreme Court did not, that 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT 802 RICHARDS v. JEFFERSON COUNTY Opinion of the Court by suing in his official capacity, the finance director intended to represent the pecuniary interests of all city taxpayers, and not simply the corporate interests of the city itself, he did not purport to represent the pecuniary interests of county taxpayers like petitioners.6 As a result, there is no reason to suppose that the Beding- field court took care to protect the interests of petitioners in the manner suggested in Hansberry. Nor is there any reason to suppose that the individual taxpayers in Beding- field understood their suit to be on behalf of absent county taxpayers. Thus, to contend that the plaintiffs in Beding- field somehow represented petitioners, let alone represented them in a constitutionally adequate manner, would be "to attribute to them a power that it cannot be said that they had assumed to exercise." Hansberry, 311 U. S., at 46. Because petitioners and the Bedingfield litigants are best described as mere "strangers" to one another, Martin v. Wilks, 490 U. S., at 762, we are unable to conclude that the Bedingfield plaintiffs provided representation sufficient to make up for the fact that petitioners neither participated in, see Montana v. United States, 440 U. S. 147, 154 (1979), nor had the opportunity to participate in, the Bedingfield action. Accordingly, due process prevents the former from being bound by the latter's judgment. IV Respondents contend that, even if petitioners did not re- ceive the kind of opportunity to make their case in court that due process would ordinarily ensure, the character of their 6 We need not decide here whether public officials are always consti- tutionally adequate representatives of all persons over whom they have jurisdiction when, as here, the underlying right is personal in nature. Cf. Lockport v. Citizens for Community Action at Local Level, Inc., 430 U. S. 259, 263, n. 7 (1977) (voting rights challenge by county residents not barred by county's prior suit); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4458, p. 518 (1981); infra, at 803­805. 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT Cite as: 517 U. S. 793 (1996) 803 Opinion of the Court action renders the usual constitutional protections inapplica- ble. They contend that invalidation of the occupation tax would have disastrous consequences on the county, which has made substantial commitments of tax revenues based on its understanding that Bedingfield determined the constitution- ality of the tax. Respondents argue that in cases raising a public issue of this kind, the people may properly be re- garded as the real party in interest and thus that petitioners received all the process they were due in the Bedingfield action. Our answer requires us to distinguish between two types of actions brought by taxpayers. In one category are cases in which the taxpayer is using that status to entitle him to complain about an alleged misuse of public funds, see, e. g., Massachusetts v. Mellon, 262 U. S. 447, 486­489 (1923), or about other public action that has only an indirect impact on his interests, e. g., Stromberg v. Board of Ed. of Bratenahl, 64 Ohio St. 2d 98, 413 N. E. 2d 1184 (1980), Tallassee v. State ex rel. Brunson, 206 Ala. 169, 89 So. 514 (1921). As to this category of cases, we may assume that the States have wide latitude to establish procedures not only to limit the number of judicial proceedings that may be entertained but also to determine whether to accord a taxpayer any standing at all. Because the guarantee of due process is not a mere form, however, there obviously exists another category of taxpayer cases in which the State may not deprive individual litigants of their own day in court. By virtue of presenting a federal constitutional challenge to a State's attempt to levy personal funds, petitioners clearly bring an action of this latter type. Cf. ibid. (distinguishing between "public" and "private" ac- tions). Indeed, we have previously struck down as a vio- lation of due process a state court's decision denying an individual taxpayer any practicable opportunity to contest a tax on federal constitutional grounds. See Brinkerhoff- Faris Trust & Sav. Co. v. Hill, 281 U. S. 673 (1930). There, we explained: 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT 804 RICHARDS v. JEFFERSON COUNTY Opinion of the Court "We are not now concerned with the rights of the plain- tiff on the merits, although it may be observed that the plaintiff's claim is one arising under the Federal Consti- tution and, consequently, one on which the opinion of the state court is not final . . . . Our present concern is solely with the question whether the plaintiff has been accorded due process in the primary sense,-whether it has had an opportunity to present its case and be heard in its support. . . . [W]hile it is for the state courts to determine the adjective as well as the substantive law of the State, they must, in so doing, accord the parties due process of law. Whether acting through its judi- ciary or through its legislature, a State may not deprive a person of all existing remedies for the enforcement of a right, which the State has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it." Id., at 681­682. In any event, the Alabama Supreme Court did not hold here that petitioners' suit was of a kind that, under state law, could be brought only on behalf of the public at large. Cf. Corprew v. Tallapoosa County, 241 Ala. 492, 3 So. 2d 53 (1941) (discussing state statutory quo warranto proceedings). To conclude that the suit may nevertheless be barred by the prior action in Bedingfield would thus be to deprive petition- ers of their "chose in action," which we have held to be a protected property interest in its own right. See Logan v. Zimmerman Brush Co., 455 U. S. 422, 429­430 (1982); Phil- lips Petroleum Co. v. Shutts, 472 U. S., at 812 (relying on Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950)); Hansberry v. Lee, 311 U. S., at 37. Thus, we are not persuaded that the nature of petitioners' action permits us to deviate from the traditional rule that an extreme applica- tion of state-law res judicata principles violates the Federal Constitution. Of course, we are aware that governmental and private entities have substantial interests in the prompt and deter- 517us3$61I 02-05-99 16:37:01 PAGES OPINPGT Cite as: 517 U. S. 793 (1996) 805 Opinion of the Court minative resolution of challenges to important legislation. We do not agree with the Alabama Supreme Court, how- ever, that, given the amount of money at stake, respondents were entitled to rely on the assumption that the Bedingfield action "authoritatively establish[ed]" the constitutionality of the tax. 662 So. 2d, at 1130. A state court's freedom to rely on prior precedent in rejecting a litigant's claims does not afford it similar freedom to bind a litigant to a prior judgment to which he was not a party. That general rule clearly applies when a taxpayer seeks a hearing to prevent the State from subjecting him to a levy in violation of the Federal Constitution. V Because petitioners received neither notice of, nor suffi- cient representation in, the Bedingfield litigation, that adju- dication, as a matter of federal due process, may not bind them and thus cannot bar them from challenging an allegedly unconstitutional deprivation of their property. Accordingly, the judgment of the Alabama Supreme Court is reversed, and the case is remanded to that court for further proceed- ings not inconsistent with this opinion. It is so ordered. 517us3$62Z 12-19-97 14:35:32 PAGES OPINPGT 806 OCTOBER TERM, 1995 Syllabus WHREN et al. v. UNITED STATES certiorari to the united states court of appeals for the district of columbia circuit No. 95­5841. Argued April 17, 1996-Decided June 10, 1996 Plainclothes policemen patrolling a "high drug area" in an unmarked vehi- cle observed a truck driven by petitioner Brown waiting at a stop sign at an intersection for an unusually long time; the truck then turned suddenly, without signaling, and sped off at an "unreasonable" speed. The officers stopped the vehicle, assertedly to warn the driver about traffic violations, and upon approaching the truck observed plastic bags of crack cocaine in petitioner Whren's hands. Petitioners were ar- rested. Prior to trial on federal drug charges, they moved for suppres- sion of the evidence, arguing that the stop had not been justified by either a reasonable suspicion or probable cause to believe petitioners were engaged in illegal drug-dealing activity, and that the officers' traffic-violation ground for approaching the truck was pretextual. The motion to suppress was denied, petitioners were convicted, and the Court of Appeals affirmed. Held: The temporary detention of a motorist upon probable cause to be- lieve that he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable seizures, even if a rea- sonable officer would not have stopped the motorist absent some addi- tional law enforcement objective. Pp. 809­819. (a) Detention of a motorist is reasonable where probable cause exists to believe that a traffic violation has occurred. See, e. g., Delaware v. Prouse, 440 U. S. 648, 659. Petitioners claim that, because the police may be tempted to use commonly occurring traffic violations as means of investigating violations of other laws, the Fourth Amendment test for traffic stops should be whether a reasonable officer would have stopped the car for the purpose of enforcing the traffic violation at issue. However, this Court's cases foreclose the argument that ulterior motives can invalidate police conduct justified on the basis of probable cause. See, e. g., United States v. Robinson, 414 U. S. 218, 221, n. 1, 236. Sub- jective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. Pp. 809­813. (b) Although framed as an empirical question-whether the officer's conduct deviated materially from standard police practices-petitioners' proposed test is plainly designed to combat the perceived danger of pretextual stops. It is thus inconsistent with this Court's cases, which 517us3$62Z 12-19-97 14:35:32 PAGES OPINPGT Cite as: 517 U. S. 806 (1996) 807 Syllabus make clear that the Fourth Amendment's concern with "reasonableness" allows certain actions to be taken in certain circumstances, whatever the subjective intent. See, e. g., Robinson, supra, at 236. Nor can the Fourth Amendment's protections be thought to vary from place to place and from time to time, which would be the consequence of assessing the reasonableness of police conduct in light of local law enforcement practices. Pp. 813­816. (c) Also rejected is petitioners' argument that the balancing of inter- ests inherent in Fourth Amendment inquiries does not support enforce- ment of minor traffic laws by plainclothes police in unmarked vehicles, since that practice only minimally advances the government's interest in traffic safety while subjecting motorists to inconvenience, confusion, and anxiety. Where probable cause exists, this Court has found it nec- essary to engage in balancing only in cases involving searches or sei- zures conducted in a manner unusually harmful to the individual. See, e. g., Tennessee v. Garner, 471 U. S. 1. The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice. Pp. 816­819. 53 F. 3d 371, affirmed. Scalia, J., delivered the opinion for a unanimous Court. Lisa Burget Wright argued the cause for petitioners. With her on the briefs were A. J. Kramer, Neil H. Jaffee, and G. Allen Dale. James A. Feldman argued the cause for the United States. On the brief were Solicitor General Days, Acting Assist- ant Attorney General Keeney, Deputy Solicitor General Dreeben, and Paul A. Engelmayer.* *Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Steven R. Shapiro and Susan N. Herman; and for the National Association of Criminal Defense Lawyers by Natman Schaye and Walter B. Nash III. Briefs of amici curiae urging affirmance were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney Gen- eral, Ronald A. Bass, Senior Assistant Attorney General, Joan Killeen and Catherine A. Rivlin, Supervising Deputy Attorneys General, and Christina V. Kuo, Deputy Attorney General; and by the Attorneys Gen- eral for their respective States as follows: M. Jane Brady of Delaware, 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT 808 WHREN v. UNITED STATES Opinion of the Court Justice Scalia delivered the opinion of the Court. In this case we decide whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment's prohibition against unreasonable sei- zures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws. I On the evening of June 10, 1993, plainclothes vice-squad officers of the District of Columbia Metropolitan Police De- partment were patrolling a "high drug area" of the city in an unmarked car. Their suspicions were aroused when they passed a dark Pathfinder truck with temporary license plates and youthful occupants waiting at a stop sign, the driver looking down into the lap of the passenger at his right. The truck remained stopped at the intersection for what seemed an unusually long time-more than 20 seconds. When the police car executed a U-turn in order to head back toward the truck, the Pathfinder turned suddenly to its right, with- out signaling, and sped off at an "unreasonable" speed. The policemen followed, and in a short while overtook the Path- finder when it stopped behind other traffic at a red light. They pulled up alongside, and Officer Ephraim Soto stepped out and approached the driver's door, identifying himself as a police officer and directing the driver, petitioner Brown, to put the vehicle in park. When Soto drew up to the driver's Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Mike Moore of Mississippi, Frankie Sue Del Papa of Nevada, Deborah T. Poritz of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Charles W. Burson of Tennessee, and Jan Graham of Utah. Richard S. Michaels and Jeff Rubin filed a brief for the California District Attorney's Association as amicus curiae. 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT Cite as: 517 U. S. 806 (1996) 809 Opinion of the Court window, he immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren's hands. Petitioners were arrested, and quantities of several types of illegal drugs were retrieved from the vehicle. Petitioners were charged in a four-count indictment with violating various federal drug laws, including 21 U. S. C. §§ 844(a) and 860(a). At a pretrial suppression hearing, they challenged the legality of the stop and the resulting seizure of the drugs. They argued that the stop had not been justi- fied by probable cause to believe, or even reasonable suspi- cion, that petitioners were engaged in illegal drug-dealing activity; and that Officer Soto's asserted ground for ap- proaching the vehicle-to give the driver a warning concern- ing traffic violations-was pretextual. The District Court denied the suppression motion, concluding that "the facts of the stop were not controverted," and "[t]here was nothing to really demonstrate that the actions of the officers were contrary to a normal traffic stop." App. 5. Petitioners were convicted of the counts at issue here. The Court of Appeals affirmed the convictions, holding with respect to the suppression issue that, "regardless of whether a police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same circumstances could have stopped the car for the suspected traffic violation." 53 F. 3d 371, 374­375 (CADC 1995). We granted certiorari. 516 U. S. 1036 (1996). II The Fourth Amendment guarantees "[t]he right of the peo- ple to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT 810 WHREN v. UNITED STATES Opinion of the Court meaning of this provision. See Delaware v. Prouse, 440 U. S. 648, 653 (1979); United States v. Martinez-Fuerte, 428 U. S. 543, 556 (1976); United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975). An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See Prouse, supra, at 659; Pennsylvania v. Mimms, 434 U. S. 106, 109 (1977) (per curiam). Petitioners accept that Officer Soto had probable cause to believe that various provisions of the District of Columbia traffic code had been violated. See 18 D. C. Mun. Regs. §§ 2213.4 (1995) ("An operator shall . . . give full time and attention to the operation of the vehicle"); 2204.3 ("No person shall turn any vehicle . . . without giving an appropriate sig- nal"); 2200.3 ("No person shall drive a vehicle . . . at a speed greater than is reasonable and prudent under the condi- tions"). They argue, however, that "in the unique context of civil traffic regulations" probable cause is not enough. Since, they contend, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. Peti- tioners, who are both black, further contend that police offi- cers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car's occupants. To avoid this danger, they say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given. 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT Cite as: 517 U. S. 806 (1996) 811 Opinion of the Court A Petitioners contend that the standard they propose is con- sistent with our past cases' disapproval of police attempts to use valid bases of action against citizens as pretexts for pur- suing other investigatory agendas. We are reminded that in Florida v. Wells, 495 U. S. 1, 4 (1990), we stated that "an inventory search[1] must not be a ruse for a general rummag- ing in order to discover incriminating evidence"; that in Col- orado v. Bertine, 479 U. S. 367, 372 (1987), in approving an inventory search, we apparently thought it significant that there had been "no showing that the police, who were follow- ing standardized procedures, acted in bad faith or for the sole purpose of investigation"; and that in New York v. Burger, 482 U. S. 691, 716­717, n. 27 (1987), we observed, in upholding the constitutionality of a warrantless administra- tive inspection,2 that the search did not appear to be "a `pre- text' for obtaining evidence of . . . violation of . . . penal laws." But only an undiscerning reader would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred. In each case we were addressing the validity of a search conducted in the absence of probable cause. Our quoted statements simply explain that the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative 1 An inventory search is the search of property lawfully seized and de- tained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage. See South Dakota v. Opperman, 428 U. S. 364, 369 (1976). 2 An administrative inspection is the inspection of business premises conducted by authorities responsible for enforcing a pervasive regulatory scheme-for example, unannounced inspection of a mine for compliance with health and safety standards. See Donovan v. Dewey, 452 U. S. 594, 599­605 (1981). 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT 812 WHREN v. UNITED STATES Opinion of the Court regulation, is not accorded to searches that are not made for those purposes. See Bertine, supra, at 371­372; Burger, supra, at 702­703. Petitioners also rely upon Colorado v. Bannister, 449 U. S. 1 (1980) (per curiam), a case which, like this one, involved a traffic stop as the prelude to a plain-view sighting and arrest on charges wholly unrelated to the basis for the stop. Peti- tioners point to our statement that "[t]here was no evidence whatsoever that the officer's presence to issue a traffic cita- tion was a pretext to confirm any other previous suspicion about the occupants" of the car. Id., at 4, n. 4. That dictum at most demonstrates that the Court in Bannister found no need to inquire into the question now under discussion; not that it was certain of the answer. And it may demonstrate even less than that: If by "pretext" the Court meant that the officer really had not seen the car speeding, the statement would mean only that there was no reason to doubt probable cause for the traffic stop. It would, moreover, be anomalous, to say the least, to treat a statement in a footnote in the per curiam Bannister opin- ion as indicating a reversal of our prior law. Petitioners' difficulty is not simply a lack of affirmative support for their position. Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer's motive invalidates objectively justi- fiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary. In United States v. Villamonte-Marquez, 462 U. S. 579, 584, n. 3 (1983), we held that an otherwise valid warrantless boarding of a vessel by customs officials was not rendered invalid "because the customs officers were accompanied by a Louisiana state po- liceman, and were following an informant's tip that a vessel in the ship channel was thought to be carrying marihuana." We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. In United States v. Robinson, 414 U. S. 218 (1973), we held that 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT Cite as: 517 U. S. 806 (1996) 813 Opinion of the Court a traffic-violation arrest (of the sort here) would not be ren- dered invalid by the fact that it was "a mere pretext for a narcotics search," id., at 221, n. 1; and that a lawful post- arrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches, see id., at 236. See also Gustafson v. Florida, 414 U. S. 260, 266 (1973). And in Scott v. United States, 436 U. S. 128, 138 (1978), in reject- ing the contention that wiretap evidence was subject to ex- clusion because the agents conducting the tap had failed to make any effort to comply with the statutory requirement that unauthorized acquisitions be minimized, we said that "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." We described Robin- son as having established that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." 436 U. S., at 136, 138. We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. B Recognizing that we have been unwilling to entertain Fourth Amendment challenges based on the actual motiva- tions of individual officers, petitioners disavow any intention to make the individual officer's subjective good faith the touchstone of "reasonableness." They insist that the stand- 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT 814 WHREN v. UNITED STATES Opinion of the Court ard they have put forward-whether the officer's conduct deviated materially from usual police practices, so that a rea- sonable officer in the same circumstances would not have made the stop for the reasons given-is an "objective" one. But although framed in empirical terms, this approach is plainly and indisputably driven by subjective considerations. Its whole purpose is to prevent the police from doing under the guise of enforcing the traffic code what they would like to do for different reasons. Petitioners' proposed standard may not use the word "pretext," but it is designed to combat nothing other than the perceived "danger" of the pretextual stop, albeit only indirectly and over the run of cases. In- stead of asking whether the individual officer had the proper state of mind, the petitioners would have us ask, in effect, whether (based on general police practices) it is plausible to believe that the officer had the proper state of mind. Why one would frame a test designed to combat pretext in such fashion that the court cannot take into account actual and admitted pretext is a curiosity that can only be explained by the fact that our cases have foreclosed the more sensible option. If those cases were based only upon the evidentiary difficulty of establishing subjective intent, petitioners' at- tempt to root out subjective vices through objective means might make sense. But they were not based only upon that, or indeed even principally upon that. Their principal basis-which applies equally to attempts to reach subjective intent through ostensibly objective means-is simply that the Fourth Amendment's concern with "reasonableness" allows certain actions to be taken in certain circumstances, whatever the subjective intent. See, e. g., Robinson, supra, at 236 ("Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the [arrestee] or that he did not himself suspect that [the arrestee] was armed") (footnotes omitted); Gustafson, supra, at 266 (same). But even if our concern had been only an evidentiary one, 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT Cite as: 517 U. S. 806 (1996) 815 Opinion of the Court petitioners' proposal would by no means assuage it. Indeed, it seems to us somewhat easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a "reason- able officer" would have been moved to act upon the traffic violation. While police manuals and standard procedures may sometimes provide objective assistance, ordinarily one would be reduced to speculating about the hypothetical re- action of a hypothetical constable-an exercise that might be called virtual subjectivity. Moreover, police enforcement practices, even if they could be practicably assessed by a judge, vary from place to place and from time to time. We cannot accept that the search and seizure protections of the Fourth Amendment are so variable, cf. Gustafson, supra, at 265; United States v. Ca- ceres, 440 U. S. 741, 755­756 (1979), and can be made to turn upon such trivialities. The difficulty is illustrated by peti- tioners' arguments in this case. Their claim that a reason- able officer would not have made this stop is based largely on District of Columbia police regulations which permit plainclothes officers in unmarked vehicles to enforce traffic laws "only in the case of a violation that is so grave as to pose an immediate threat to the safety of others." Metropolitan Police Department, Washington, D. C., General Order 303.1, pt. 1, Objectives and Policies (A)(2)(4) (Apr. 30, 1992), re- printed as Addendum to Brief for Petitioners. This basis of invalidation would not apply in jurisdictions that had a different practice. And it would not have applied even in the District of Columbia, if Officer Soto had been wearing a uniform or patrolling in a marked police cruiser. Petitioners argue that our cases support insistence upon police adherence to standard practices as an objective means of rooting out pretext. They cite no holding to that effect, and dicta in only two cases. In Abel v. United States, 362 U. S. 217 (1960), the petitioner had been arrested by the Im- migration and Naturalization Service (INS), on the basis of 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT 816 WHREN v. UNITED STATES Opinion of the Court an administrative warrant that, he claimed, had been issued on pretextual grounds in order to enable the Federal Bureau of Investigation (FBI) to search his room after his arrest. We regarded this as an allegation of "serious misconduct," but rejected Abel's claims on the ground that "[a] finding of bad faith is . . . not open to us on th[e] record" in light of the findings below, including the finding that " `the proceedings taken by the [INS] differed in no respect from what would have been done in the case of an individual concerning whom [there was no pending FBI investigation],' " id., at 226­227. But it is a long leap from the proposition that following regu- lar procedures is some evidence of lack of pretext to the proposition that failure to follow regular procedures proves (or is an operational substitute for) pretext. Abel, more- over, did not involve the assertion that pretext could invali- date a search or seizure for which there was probable cause-and even what it said about pretext in other contexts is plainly inconsistent with the views we later stated in Rob- inson, Gustafson, Scott, and Villamonte-Marquez. In the other case claimed to contain supportive dicta, United States v. Robinson, 414 U. S. 218 (1973), in approving a search inci- dent to an arrest for driving without a license, we noted that the arrest was "not a departure from established police de- partment practice." Id., at 221, n. 1. That was followed, however, by the statement that "[w]e leave for another day questions which would arise on facts different from these." Ibid. This is not even a dictum that purports to provide an answer, but merely one that leaves the question open. III In what would appear to be an elaboration on the "reason- able officer" test, petitioners argue that the balancing inher- ent in any Fourth Amendment inquiry requires us to weigh the governmental and individual interests implicated in a traffic stop such as we have here. That balancing, petition- ers claim, does not support investigation of minor traffic in- 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT Cite as: 517 U. S. 806 (1996) 817 Opinion of the Court fractions by plainclothes police in unmarked vehicles; such investigation only minimally advances the government's in- terest in traffic safety, and may indeed retard it by producing motorist confusion and alarm-a view said to be supported by the Metropolitan Police Department's own regulations generally prohibiting this practice. And as for the Fourth Amendment interests of the individuals concerned, petition- ers point out that our cases acknowledge that even ordinary traffic stops entail "a possibly unsettling show of authority"; that they at best "interfere with freedom of movement, are inconvenient, and consume time" and at worst "may create substantial anxiety," Prouse, 440 U. S., at 657. That anxiety is likely to be even more pronounced when the stop is con- ducted by plainclothes officers in unmarked cars. It is of course true that in principle every Fourth Amend- ment case, since it turns upon a "reasonableness" determina- tion, involves a balancing of all relevant factors. With rare exceptions not applicable here, however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause. That is why petitioners must rely upon cases like Prouse to provide examples of actual "bal- ancing" analysis. There, the police action in question was a random traffic stop for the purpose of checking a motorist's license and vehicle registration, a practice that-like the practices at issue in the inventory search and administrative inspection cases upon which petitioners rely in making their "pretext" claim-involves police intrusion without the proba- ble cause that is its traditional justification. Our opinion in Prouse expressly distinguished the case from a stop based on precisely what is at issue here: "probable cause to believe that a driver is violating any one of the multitude of appli- cable traffic and equipment regulations." Id., at 661. It noted approvingly that "[t]he foremost method of enforcing traffic and vehicle safety regulations . . . is acting upon ob- served violations," id., at 659, which afford the " `quantum of individualized suspicion' " necessary to ensure that police 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT 818 WHREN v. UNITED STATES Opinion of the Court discretion is sufficiently constrained, id., at 654­655 (quoting United States v. Martinez-Fuerte, 428 U. S., at 560). What is true of Prouse is also true of other cases that engaged in detailed "balancing" to decide the constitutionality of auto- mobile stops, such as Martinez-Fuerte, which upheld check- point stops, see 428 U. S., at 556­562, and Brignoni-Ponce, which disallowed so-called "roving patrol" stops, see 422 U. S., at 882­884: The detailed "balancing" analysis was necessary because they involved seizures without probable cause. Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balanc- ing" analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests-such as, for example, sei- zure by means of deadly force, see Tennessee v. Garner, 471 U. S. 1 (1985), unannounced entry into a home, see Wilson v. Arkansas, 514 U. S. 927 (1995), entry into a home without a warrant, see Welsh v. Wisconsin, 466 U. S. 740 (1984), or physical penetration of the body, see Winston v. Lee, 470 U. S. 753 (1985). The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to be- lieve the law has been broken "outbalances" private interest in avoiding police contact. Petitioners urge as an extraordinary factor in this case that the "multitude of applicable traffic and equipment regu- lations" is so large and so difficult to obey perfectly that vir- tually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as 517us3$62K 12-19-97 14:35:32 PAGES OPINPGT Cite as: 517 U. S. 806 (1996) 819 Opinion of the Court petitioners would have us do, which particular provisions are sufficiently important to merit enforcement. For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common- law rule that probable cause justifies a search and seizure. * * * Here the District Court found that the officers had proba- ble cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment, the evidence thereby discovered admissible, and the upholding of the convictions by the Court of Appeals for the District of Columbia Circuit correct. The judgment is Affirmed. 517us3$63Z 02-05-99 16:44:37 PAGES OPINPGT 820 OCTOBER TERM, 1995 Syllabus DEGEN v. UNITED STATES certiorari to the united states court of appeals for the ninth circuit No. 95­173. Argued April 22, 1996-Decided June 10, 1996 Petitioner Degen is outside the United States and cannot be extradited to face federal drug charges. When he filed an answer in a related civil action, contesting the Government's attempt to forfeit properties alleg- edly purchased with proceeds from his drug dealings, the District Court struck his claims and entered summary judgment against him, holding that he was not entitled to be heard in the forfeiture action because he remained outside the country, unamenable to criminal prosecution. The court's final order vested title to the properties in the United States, and the Court of Appeals affirmed. Held: A district court may not strike a claimant's filings in a forfeiture suit and grant summary judgment against him for failing to appear in a related criminal prosecution. Pp. 822­829. (a) The Government contends that the District Court's inherent pow- ers authorized it to strike Degen's claims under what has been labeled the "fugitive disentitlement doctrine." Principles of deference counsel restraint in resorting to the courts' inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities, see, e. g., Chambers v. NASCO, Inc., 501 U. S. 32, 44, and require its use to be a reasonable response to the problems and needs provoking it, Ortega-Rodriguez v. United States, 507 U. S. 234, 244. Pp. 822­824. (b) No necessity justifies disentitlement here. Since the court's juris- diction over the property is secure despite Degen's absence, there is no risk of delay or frustration in determining the merits of the Govern- ment's forfeiture claims or in enforcing the resulting judgment. The court has alternatives, other than the harsh sanction of disentitlement, to keep Degen from using liberal civil discovery rules to gain an im- proper advantage in the criminal prosecution, where discovery is more limited. Disentitlement also is too arbitrary a means of redressing the indignity visited upon the court by Degen's absence from the crim- inal proceedings and deterring flight from criminal prosecution by Degen and others. A court's dignity derives from the respect accorded its judgments. That respect is eroded, not enhanced, by excessive 517us3$63Z 02-05-99 16:44:37 PAGES OPINPGT Cite as: 517 U. S. 820 (1996) 821 Opinion of the Court recourse to rules foreclosing consideration of claims on the merits. Pp. 824­829. 47 F. 3d 1511, reversed and remanded. Kennedy, J., delivered the opinion for a unanimous Court. Lawrence S. Robbins argued the cause for petitioner. With him on the briefs were Andrew L. Frey, Alan E. Untereiner, and Daniel W. Stewart. Miguel A. Estrada argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.* Justice Kennedy delivered the opinion of the Court. In this case we consider whether a United States District Court may strike the filings of a claimant in a forfeiture suit and grant summary judgment against him for failing to ap- pear in a related criminal prosecution. The Court of Ap- peals for the Ninth Circuit held this to be a proper exercise of the District Court's inherent authority. We reverse. A federal grand jury in Nevada indicted Brian Degen for distributing marijuana, laundering money, and related crimes. On the same day in 1989 that it unsealed the indict- ment, the United States District Court for the District of Nevada also unsealed a civil forfeiture complaint. The Gov- ernment sought to forfeit properties in California, Nevada, and Hawaii, allegedly worth $5.5 million and purchased with proceeds of Degen's drug sales or used to facilitate the sales. 84 Stat. 1276, as amended, 21 U. S. C. §§ 881(a)(6)­(a)(7). An affidavit by an agent of the Drug Enforcement Agency ac- companied the complaint and recounted instances of Degen's alleged drug smuggling during the previous 20 years. *Briefs of amici curiae urging reversal were filed for Public Citizen by Alan B. Morrison and Allison M. Zieve; and for Ghaith R. Pharaon by Richard F. Lawler. 517us3$63L 02-05-99 16:44:37 PAGES OPINPGT 822 DEGEN v. UNITED STATES Opinion of the Court Degen is a citizen of the United States and of Switzerland, his father having been born there. Degen moved to Swit- zerland with his family in 1988. He has not returned to face the criminal charges against him, and we are advised that Switzerland's extradition treaty with the United States does not oblige either country to turn its nationals over to the other. While remaining outside this country, however, Degen did file an answer in the civil action to contest the forfeiture. Among other things, he contended the Govern- ment's claims were barred by the statute of limitations, 46 Stat. 758, as amended, 19 U. S. C. § 1621, and based on an unlawful retroactive application of the forfeiture laws. The District Court in the forfeiture case did not consider any of these arguments. Instead it granted the Govern- ment's motion to strike Degen's claims and entered summary judgment against him. The court held Degen was not en- titled to be heard in the civil forfeiture action because he remained outside the country, unamenable to criminal prose- cution. United States v. Real Property Located at Incline Village, 755 F. Supp. 308 (1990). After another two years consumed by procedural matters (for the most part involving attempts by Degen's wife to contest the forfeiture), the Dis- trict Court entered a final order vesting title to the prop- erties in the United States. The Court of Appeals for the Ninth Circuit affirmed. United States v. Real Prop- erty Located at Incline Village, 47 F. 3d 1511 (1995). We granted certiorari. 516 U. S. 1070 (1996). In an ordinary case a citizen has a right to a hearing to contest the forfeiture of his property, a right secured by the Due Process Clause, United States v. James Daniel Good Real Property, 510 U. S. 43, 48­62 (1993); Fuentes v. Shevin, 407 U. S. 67, 80 (1972); McVeigh v. United States, 11 Wall. 259, 266­267 (1871), and implemented by federal rule, Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims. Nonetheless, the Government argues, the 517us3$63L 02-05-99 16:44:37 PAGES OPINPGT Cite as: 517 U. S. 820 (1996) 823 Opinion of the Court District Court's inherent powers authorized it to strike Degen's claims under what some courts have labeled the "fu- gitive disentitlement doctrine." We have sustained, to be sure, the authority of an appellate court to dismiss an appeal or writ in a criminal matter when the party seeking relief becomes a fugitive. Ortega-Rodriguez v. United States, 507 U. S. 234, 239 (1993); Smith v. United States, 94 U. S. 97 (1876). The question before us is whether the doctrine should be extended to allow a court in a civil forfeiture suit to enter judgment against a claimant because he is a fugitive from, or otherwise is resisting, a related criminal prosecu- tion. The Courts of Appeals to consider the question have come to different conclusions (compare the decision here and in United States v. Eng, 951 F. 2d 461 (CA2 1991), with United States v. $40,877.59 in United States Currency, 32 F. 3d 1151 (CA7 1994), and United States v. $83,320 in United States Currency, 682 F. 2d 573 (CA6 1982)), precipitating our grant of certiorari in this case. Courts invested with the judicial power of the United States have certain inherent authority to protect their pro- ceedings and judgments in the course of discharging their traditional responsibilities. Chambers v. NASCO, Inc., 501 U. S. 32, 43­46 (1991); Link v. Wabash R. Co., 370 U. S. 626, 630­631 (1962); United States v. Hudson, 7 Cranch 32, 34 (1812). The extent of these powers must be delimited with care, for there is a danger of overreaching when one branch of the Government, without benefit of cooperation or correc- tion from the others, undertakes to define its own authority. Roadway Express, Inc. v. Piper, 447 U. S. 752, 764 (1980). In many instances the inherent powers of the courts may be controlled or overridden by statute or rule. Carlisle v. United States, ante, at 426; Bank of Nova Scotia v. United States, 487 U. S. 250, 254 (1988). Principles of deference counsel restraint in resorting to inherent power, Chambers v. NASCO, supra, at 44, and require its use to be a reasonable 517us3$63L 02-05-99 16:44:37 PAGES OPINPGT 824 DEGEN v. UNITED STATES Opinion of the Court response to the problems and needs that provoke it, Ortega- Rodriguez v. United States, supra, at 244; Thomas v. Arn, 474 U. S. 140, 146­148 (1985). In accord with these principles, we have held federal courts do have authority to dismiss an appeal or writ of cer- tiorari if the party seeking relief is a fugitive while the mat- ter is pending. Several reasons have been given for the rule. First, so long as the party cannot be found, the judg- ment on review may be impossible to enforce. This was the rationale of the first case to acknowledge the doctrine, Smith v. United States, supra, at 97: "It is clearly within our discre- tion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render." See also Bo- hanan v. Nebraska, 125 U. S. 692 (1887); Eisler v. United States, 338 U. S. 189 (1949). Second, we have said an appel- lant's escape "disentitles" him "to call upon the resources of the Court for determination of his claims." Molinaro v. New Jersey, 396 U. S. 365, 366 (1970) (per curiam). The cases cited so far involved the dismissal of fugitives' petitions in this Court. In reviewing similar practices in state courts for conformity with the Due Process Clause, we have noted further reasons for them: Disentitlement "discourages the felony of escape and encourages voluntary surrenders," and "promotes the efficient, dignified operation" of the courts. Estelle v. Dorrough, 420 U. S. 534, 537 (1975) (per curiam) (using those reasons to justify refusing to reinstate an appeal even once an escaped appellant is recaptured). See also Allen v. Georgia, 166 U. S. 138 (1897). Against this backdrop came our decision four Terms ago in Ortega-Rodriguez. The defendant had escaped from federal custody after conviction but before sentencing. He was sen- tenced in absentia, but later was recaptured and resen- tenced; he then filed an appeal, which was dismissed on the authority of Smith v. United States, supra, and the other disentitlement cases just described. We reversed, holding 517us3$63L 02-05-99 16:44:37 PAGES OPINPGT Cite as: 517 U. S. 820 (1996) 825 Opinion of the Court those precedents did not justify dismissal of an appeal by a fugitive recaptured before the appeal was filed. We noted the judgment of the Court of Appeals would be enforceable against the appellant, and that his earlier absence, when no appeal was pending, did not threaten the dignity of the court imposing the sanction. Ortega-Rodriguez v. United States, 507 U. S., at 244­246. We did not rule out the possibility of appellate disentitlement where necessary to prevent actual prejudice to the Government from a fugitive's extended ab- sence, id., at 249, but we concluded the sanction of disentitle- ment was unjustified as a sanction applicable to all cases where an escape once had occurred, id., at 249­251. We con- duct a similar examination of the disentitlement imposed here, and find it likewise unjustified. There is no risk in this case of delay or frustration in de- termining the merits of the Government's forfeiture claims or in enforcing the resulting judgment. The Government has shown probable cause to forfeit the property, and Degen must refute the showing or suffer its loss. Since the court's jurisdiction over the property is secure despite Degen's absence, there is no danger the court in the forfeiture suit will waste its time rendering a judgment unenforceable in practice. The Government is on stronger ground in suggesting the criminal prosecution against Degen might be compromised by his participation in the forfeiture case. The problem stems from the differences between the discovery privileges available to Degen in each case. See Afro-Lecon, Inc. v. United States, 820 F. 2d 1198, 1203­1204 (CA Fed. 1987); Campbell v. Eastland, 307 F. 2d 478, 487 (CA5 1962). A criminal defendant is entitled to rather limited discovery, with no general right to obtain the statements of the Govern- ment's witnesses before they have testified. Fed. Rules Crim. Proc. 16(a)(2), 26.2. In a civil case, by contrast, a party is entitled as a general matter to discovery of any in- formation sought if it appears "reasonably calculated to lead 517us3$63L 02-05-99 16:44:37 PAGES OPINPGT 826 DEGEN v. UNITED STATES Opinion of the Court to the discovery of admissible evidence." Fed. Rule Civ. Proc. 26(b)(1). The Government contends Degen might use the rules of civil discovery in the forfeiture suit to gain an improper advantage in the criminal matter, prying into the prosecution's case in a manner not otherwise permitted. These problems are not uncommon when criminal and civil forfeiture suits are pending at the same time, but they are made acute by Degen's absence. If he were in federal cus- tody, the risk of compromising the criminal case could be avoided by staying the civil suit until the prosecution is over. 21 U. S. C. § 881(i). Cf. United States v. Kordel, 397 U. S. 1, 9 (1970). Degen rendered this solution impractical by frus- trating the prosecution of the criminal case against him. The criminal trial cannot begin until he returns, Crosby v. United States, 506 U. S. 255 (1993); if the civil matter were subordinated to the criminal, the forfeiture could be held in abeyance for an indefinite time. This delay would be preju- dicial to the Government, for if its forfeiture claims are good, its right to the properties is immediate. We nonetheless are satisfied the District Court has the means to resolve these dilemmas without resorting to a rule forbidding all participa- tion by the absent claimant. First, the District Court has its usual authority to manage discovery in a civil suit, including the power to enter protec- tive orders limiting discovery as the interests of justice re- quire. Fed. Rule Civ. Proc. 26(c). Decisions in the Courts of Appeals have sustained protective orders to prevent par- ties from using civil discovery to evade restrictions on dis- covery in criminal cases. See, e. g., In re Ramu Corp., 903 F. 2d 312, 316­317, 320­321 (CA5 1990); United States v. Stewart, 872 F. 2d 957, 962­963 (CA10 1989); Campbell v. Eastland, supra, at 487. See also Capital Engineering & Mfg. Co., Inc. v. Weinberger, 695 F. Supp. 36, 41­42 (DC 1988); Founding Church of Scientology v. Kelley, 77 F. R. D. 378, 380­381 (DC 1977). 517us3$63L 02-05-99 16:44:37 PAGES OPINPGT Cite as: 517 U. S. 820 (1996) 827 Opinion of the Court Second, the court can exercise its discretion to manage the civil litigation to avoid interference with the criminal case. If, for instance, the Government were unable to rebut De- gen's arguments except by revealing confidential details of the criminal investigation, the court could consider control- ling or limiting the form of proof, or in an extreme case even the theories it permits the absent party to pursue, to prevent him from exploiting the asymmetries he creates by partici- pating in one suit but not the other. Third, of course, Degen's absence entitles him to no advan- tage. If his unwillingness to appear in person results in noncompliance with a legitimate order of the court respect- ing pleading, discovery, the presentation of evidence, or other matters, he will be exposed to the same sanctions as any other uncooperative party. A federal court has at its disposal an array of means to enforce its orders, including dismissal in an appropriate case. Again, its powers include those furnished by federal rule, see, e. g., Fed. Rules Civ. Proc. 37, 41(b); National Hockey League v. Metropolitan Hockey Club, Inc., 427 U. S. 639 (1976) (per curiam); Societe Internationale pour Participations Industrielles et Com- merciales, S. A. v. Rogers, 357 U. S. 197, 212 (1958); cf. United States v. Pole No. 3172, 852 F. 2d 636, 641­642 (CA1 1988), and by inherent authority, see, e. g., Chambers v. NASCO, Inc., 501 U. S., at 44­45; Link v. Wabash R. Co., 370 U. S., at 630­633; Woodson v. Surgitek, Inc., 57 F. 3d 1406, 1416­1417 (CA5 1995); Zebrowski v. Hanna, 973 F. 2d 1001, 1006 (CA1 1992) (Breyer, C. J.). The details of these steps are committed to the discretion of the District Court; it would be premature to consider now the precise measures the court should adopt as the case pro- ceeds. The existence of these alternative means of protect- ing the Government's interests, however, shows the lack of necessity for the harsh sanction of absolute disentitlement. Consideration of some of Degen's defenses, such as the stat- ute of limitations, appears to require little discovery. If 517us3$63L 02-05-99 16:44:37 PAGES OPINPGT 828 DEGEN v. UNITED STATES Opinion of the Court they have merit, the Government should not prevail; if they are groundless, the Government's interests will not be com- promised by their consideration. We have yet to consider two other purposes said to be advanced by disentitlement: The need to redress the indig- nity visited upon the District Court by Degen's absence from the criminal proceeding, and the need to deter flight from criminal prosecution by Degen and others. Both interests are substantial, but disentitlement is too blunt an instrument for advancing them. Without resolving whether Degen is a fugitive in all the senses of the word debated by the parties, we acknowledge disquiet at the spectacle of a criminal de- fendant reposing in Switzerland, beyond the reach of our criminal courts, while at the same time mailing papers to the court in a related civil action and expecting them to be hon- ored. Cf. United States v. Sharpe, 470 U. S. 675, 681­682, n. 2 (1985). A court-made rule striking Degen's claims and entering summary judgment against him as a sanction, how- ever, would be an arbitrary response to the conduct it is sup- posed to redress or discourage. The right of a citizen to defend his property against attack in a court is corollary to the plaintiff's right to sue there. McVeigh v. United States, 11 Wall., at 267. For this reason we have held it unconstitutional to use disentitlement similar to this as punishment for rebellion against the United States, ibid., or, in at least one instance, for contempt of court, Hovey v. Elliott, 167 U. S. 409, 413­414 (1897). We need not, and do not, intimate a view on whether enforcement of a disentitlement rule under proper authority would violate due process, cf. Blackmer v. United States, 284 U. S. 421 (1932). It remains the case, however, that the sanction of disentitle- ment is most severe and so could disserve the dignitary pur- poses for which it is invoked. The dignity of a court derives from the respect accorded its judgments. That respect is eroded, not enhanced, by too free a recourse to rules foreclos- ing consideration of claims on the merits. 517us3$63L 02-05-99 16:44:37 PAGES OPINPGT Cite as: 517 U. S. 820 (1996) 829 Opinion of the Court There would be a measure of rough justice in saying Degen must take the bitter with the sweet, and participate in the District Court either for all purposes or none. But the justice would be too rough. A court's inherent power is limited by the necessity giving rise to its exercise. There was no necessity to justify the rule of disentitlement in this case; to strike Degen's filings and grant judgment against him would be an excessive response to the concerns here advanced. 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. 517US3$64z 02-07-99 19:29:17 PAGES OPINPGT 830 OCTOBER TERM, 1995 Syllabus EXXON CO., U. S. A., et al. v. SOFEC, INC., et al. certiorari to the united states court of appeals for the ninth circuit No. 95­129. Argued March 19, 1996-Decided June 10, 1996 Petitioner Exxon's oil tanker, the Exxon Houston, ran aground and was lost several hours after its "breakout" from a mooring facility owned and operated, or manufactured, by the various respondents. Exxon filed a complaint in admiralty against respondents, alleging, inter alia, negli- gence and breach of warranty. In granting respondents' motion to bi- furcate the trial, the District Court limited the first phase thereof to the question whether the postbreakout conduct of the Houston's captain, Captain Coyne, was the superseding and sole proximate cause of the loss of the ship, leaving the issue of causation of the breakout itself for the second phase. After a bench trial, the court found that Captain Coyne's (and by imputation, Exxon's) extraordinary negligence was indeed the superseding and sole proximate cause of the Houston's grounding, and entered final judgment against Exxon. The Ninth Cir- cuit affirmed. Among other things, it rejected Exxon's legal argument that the doctrines of proximate causation and superseding cause are no longer applicable in admiralty in light of United States v. Reliable Transfer Co., 421 U. S. 397, in which this Court abandoned the "divided damages" rule previously applied in admiralty and adopted the compara- tive fault principle for allocating damages among responsible parties; held that the District Court's causation findings were well supported by the record and not clearly erroneous; ruled that the lower court did not err in rendering judgment against Exxon on its breach of warranty claims; and concluded that, under the circumstances, the bifurcation of the trial was not an abuse of discretion. Held: A plaintiff in admiralty that is the superseding, and thus the sole proximate, cause of its own injury cannot recover part of its damages from tortfeasors or contracting partners whose blameworthy actions or breaches were causes in fact of the plaintiff's injury. Pp. 836­842. (a) The Court rejects Exxon's primary argument that the proximate causation requirement, and the related superseding cause doctrine, are not or should not be applicable in admiralty. The Court finds unpersua- sive Exxon's assertion that the lower courts' refusal to allocate any share of damages to parties whose fault was a cause in fact of its injury conflicts with Reliable Transfer. The proximate causation requirement was not before the Court in that case, and the Court did not suggest 517US3$64z 02-07-99 19:29:17 PAGES OPINPGT Cite as: 517 U. S. 830 (1996) 831 Syllabus that it was inapplicable in admiralty. There is nothing internally incon- sistent in a system that apportions damages based upon comparative fault only among tortfeasors whose actions were proximate causes of an injury. Nor is there any repugnancy between the superseding cause doctrine, which is one facet of the proximate causation requirement, and a comparative fault method of allocating damages. Exxon may be correct that common-law proximate cause concepts are complex and sometimes confusing, but those concepts are generally thought to be a necessary limitation on liability. In ruling upon whether a defendant's blameworthy act was sufficiently related to the resulting harm to war- rant imposing liability for that harm on the defendant, admiralty courts may draw guidance from, inter alia, the extensive body of state law applying proximate causation requirements and from treatises and other scholarly sources. Pp. 836­839. (b) Exxon's argument that the District Court erred in rendering judgment against it on its breach of warranty claims fares no better. Exxon errs in relying upon Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U. S. 315, which does not purport to deal with the proximate causation limitation for damages on such claims and is not relevant here. Where the injured party is the sole proximate cause of the damage complained of, that party cannot recover in contract from a party whose breach of warranty is found to be a mere cause in fact of the damage. Although the principles of legal causation some- times receive labels in contract analysis different from the "proximate causation" label most frequently employed in tort analysis, these princi- ples nevertheless also restrict liability in contract. The finding that Captain Coyne's extraordinary negligence was the sole proximate cause of Exxon's injury suffices to cut off respondents' liability for that injury on a contractual breach of warranty theory as well. Pp. 839­840. (c) Also rejected is Exxon's argument that the lower courts' findings that Captain Coyne's extraordinary negligence was the sole proximate cause of Exxon's injury were in error. Although Exxon identifies some tension in the courts' various findings, it has not made the sort of "obvi- ous and exceptional showing of error," Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275, that would justify this Court's reversal of the lower courts' ultimate conclusion. Pp. 840­841. (d) Exxon's argument that bifurcation of the trial was error is not within the questions upon which this Court granted certiorari. To the extent that the argument reprises the issue whether the fault of all parties must be considered together in order that they may be compared under Reliable Transfer, it is rejected. To the extent that Exxon argues that the District Court abused its discretion in dividing the 517US3$64z 02-07-99 19:29:17 PAGES OPINPGT 832 EXXON CO., U. S. A. v. SOFEC, INC. Opinion of the Court trial in the particular way that it did, the Court declines to address the argument. Pp. 841­842. 54 F. 3d 570, affirmed. Thomas, J., delivered the opinion for a unanimous Court. Shirley M. Hufstedler argued the cause and filed briefs for petitioners. George Playdon argued the cause for respondents. With him on the brief for respondents Pacific Resources, Inc., et al. were James W. McCartney, Theodore G. Dimitry, Eugene J. Silva, and Richard H. Page. Kenneth W. Starr, Edward W. Warren, Richard A. Cordray, Randall K. Schmitt, David W. Proudfoot, and John R. Lacy filed a brief for respondents Sofec, Inc., et al.* Justice Thomas delivered the opinion of the Court. In United States v. Reliable Transfer Co., 421 U. S. 397 (1975), we abandoned the "divided damages" rule previously applied to claims in admiralty for property damages, and adopted the comparative fault principle for allocating dam- ages among parties responsible for an injury. In this case we affirm that the requirement of legal or "proximate" causa- tion, and the related "superseding cause" doctrine, apply in admiralty notwithstanding our adoption of the comparative fault principle. I This case arises from the stranding of a tanker, the Exxon Houston, several hours after it broke away from a Single Point Mooring System (SPM) owned and operated by the HIRI respondents and manufactured by respondent Sofec, Inc.1 The Houston was engaged in delivering oil into HIRI's *Thomas J. Wagner and Chester D. Hooper filed a brief for the Maritime Law Association of the United States as amicus curiae. 1 The Houston was owned and operated by petitioner Exxon Shipping Company, whose vessels carried crude oil for petitioner Exxon Company, U. S. A. We will refer to both of these companies as Exxon. The HIRI 517US3$64N 02-07-99 19:29:17 PAGES OPINPGT Cite as: 517 U. S. 830 (1996) 833 Opinion of the Court pipeline through two floating hoses, pursuant to a contract between Exxon and respondent PRII, when a heavy storm broke the chafe chain linking the vessel to the SPM. As the vessel drifted, the oil hoses broke away from the SPM. The parting of the second hose at approximately 1728 nautical time was designated below as the "breakout." The hoses were bolted to the ship, and a portion of the second hose remained attached to the ship. So long as the hose was attached to and trailing from the ship, it threatened to foul the ship's propeller, and consequently the ship's ability to maneuver was restricted. During the 2 hours and 41 minutes following the breakout, the captain of the Houston, Captain Coyne, took the ship through a series of maneuvers described in some detail in the District Court's findings of fact. The District Court found that by 1803, a small assist vessel, the Nene, was able to get control of the end of the hose so that it was no longer a threat to the Houston. See 54 F. 3d 570, 572 (CA9 1995). Between 1803 and 1830, Captain Coyne maneuvered the Houston out to sea and away from shallow water. The Dis- trict Court, and on appeal, a panel of the Court of Appeals for the Ninth Circuit, found that by 1830, the Houston had successfully avoided the peril resulting from the breakout. App. to Pet. for Cert. 65; 54 F. 3d, at 578­579. The ship had "reached a safe position," App. to Pet. for Cert. 64, and was "heading out to sea and in no further danger of stranding," id., at 65; 54 F. 3d, at 578. Many of Captain Coyne's actions after 1830 were negli- gent, according to the courts below. Most significant was his failure to have someone plot the ship's position between 1830 and 2004, a period during which the crews of the Hous- ton and the Nene were working to disconnect the hose from the Houston. Without knowing his position, Captain Coyne respondents are several affiliated corporations: Pacific Resources, Inc.; Hawaiian Independent Refinery, Inc.; PRI Marine, Inc.; and PRI Interna- tional, Inc. (PRII). 517US3$64N 02-07-99 19:29:17 PAGES OPINPGT 834 EXXON CO., U. S. A. v. SOFEC, INC. Opinion of the Court was unable to make effective use of a navigational chart to check for hazards. The courts found that this failure to plot fixes of the ship's position was grossly and extraordinarily negligent. App. to Pet. for Cert. 61; 54 F. 3d, at 578. The District Court found that "Captain Coyne's decisions were made calmly, deliberately and without the pressure of an im- minent peril." App. to Pet. for Cert. 60. His failure to plot fixes after 1830 "was entirely independent of the fact of breakout; he voluntarily decided not to plot fixes in a situa- tion where he was able to plot fixes." Id., at 64. At 1956, Captain Coyne initiated a final turn toward the shore. Because he had not plotted the ship's position, Cap- tain Coyne was unaware of its position until he ordered an- other crew member to plot the fix at 2004. Upon seeing the fix on the chart, the captain apparently realized that the ship was headed for a reef. Captain Coyne's ensuing efforts to avoid the reef came too late, and moments later the ship ran aground, resulting in its constructive total loss. The Dis- trict Court found that Captain Coyne's decision to make this final turn "was not foreseeable." Id., at 65. Exxon filed a complaint in admiralty against the HIRI re- spondents and respondent Sofec for, inter alia, the loss of its ship and cargo. The complaint contained claims for breach of warranty, strict products liability, and negligence. HIRI filed a complaint against several third-party respondents, who had manufactured and supplied the chafe chain that held the tanker to the SPM. Before trial, respondents suggested that Captain Coyne's conduct was the superseding and sole proximate cause of the loss of the ship, and they moved to bifurcate the trial. Re- spondents and the third-party respondents disputed among themselves the cause of the breakout, and they apparently sought bifurcation of the trial to avoid lengthy proceedings to resolve those factual disputes prior to a determination whether Captain Coyne's conduct was the superseding cause 517US3$64N 02-07-99 19:29:17 PAGES OPINPGT Cite as: 517 U. S. 830 (1996) 835 Opinion of the Court of Exxon's injury. The District Court granted the motion, limiting the first phase of the trial to the issue of proximate causation with respect to actions taken after the breakout, and leaving the issue of causation of the breakout itself for the second phase. Following a 3-week bench trial in admiralty, the District Court found that Captain Coyne's (and by imputation, Ex- xon's) extraordinary negligence was the superseding and sole proximate cause of the Houston's grounding. Id., at 63. The court entered final judgment against Exxon with re- spect to the loss of the Houston, and Exxon appealed. The Ninth Circuit held that the District Court's findings "that Captain Coyne had ample time, as well as opportunity and available manpower, to take precautions which would have eliminated the risk of grounding, and that his failure to do so amounted to extraordinary negligence, superseding any negligence of the defendants with regard to the breakout or provision of safe berth after the breakout," were "well supported by the record," and not clearly erroneous. 54 F. 3d, at 579. The court rejected Exxon's contention that the captain's actions were foreseeable reactions to the break- out; rather, it noted, Captain Coyne himself had explained that he did not plot fixes "because he felt it was unnecessary to do so." Id., at 578. Relying upon Circuit precedent, the court rejected Ex- xon's legal argument that the doctrines of proximate causa- tion and superseding cause were no longer applicable in ad- miralty in light of this Court's decision in Reliable Transfer. "[A]n intervening force supersedes prior negligence" and thus breaks the chain of proximate causation required to im- pose liability on the original actor, the court held, "where the subsequent actor's negligence was `extraordinary' (defined as `neither normal nor reasonably foreseeable')." 54 F. 3d, at 574. The court also rejected Exxon's argument that the District Court erred in rendering judgment against Exxon 517US3$64N 02-07-99 19:29:17 PAGES OPINPGT 836 EXXON CO., U. S. A. v. SOFEC, INC. Opinion of the Court on its breach of warranty claims. "Where, as here, the dis- trict court finds the injured party to be the superseding or sole proximate cause of the damage complained of, it cannot recover from a party whose actions or omissions are deemed to be causes in fact, but not legal causes of the damage." Id., at 576. Finally, the court held that under the circum- stances of the case, the District Court's bifurcation of the trial was not an abuse of discretion. We granted certiorari. 516 U. S. 983 (1995). II Exxon makes four arguments for the reversal of the judg- ment below: (1) that the superseding cause doctrine does not or should not apply in admiralty; (2) that respondents' breaches of warranty were causes in fact of the loss of the Houston and hence respondents should be liable for that loss; (3) that the lower courts' finding that Captain Coyne's ex- traordinary negligence was the sole proximate cause of the loss of the Houston was in error; and (4) that the District Court abused its discretion and deprived Exxon of due proc- ess in bifurcating the issue of proximate causation from the other issues. A Exxon's primary argument is that the proximate causation requirement, and the related superseding cause doctrine, are not or should not be applicable in admiralty. In particular, Exxon asserts that the lower courts' refusal to allocate any share of damages to parties whose fault was a cause in fact of Exxon's injury conflicts with our decision in Reliable Transfer. We disagree. In Reliable Transfer, we discarded a long- standing rule that property damages in admiralty cases are to be divided equally between those liable for injury, "what- ever the relative degree of their fault may have been," 421 U. S., at 397, and adopted the comparative fault principle in 517US3$64N 02-07-99 19:29:17 PAGES OPINPGT Cite as: 517 U. S. 830 (1996) 837 Opinion of the Court its stead.2 The proximate causation requirement was not before us in Reliable Transfer, and we did not suggest that the requirement was inapplicable in admiralty. (Nor, for that matter, did we consider whether the injury had been proximately caused by the defendant in that case.) There is nothing internally inconsistent in a system that apportions damages based upon comparative fault only among tortfeasors whose actions were proximate causes of an injury. Nor is there any repugnancy between the super- seding cause doctrine, which is one facet of the proximate causation requirement, and a comparative fault method of allocating damages. As Professor Schoenbaum has said: "The doctrine of superseding cause is . . . applied where the defendant's negligence in fact substantially contributed to the plaintiff's injury, but the injury was actually brought about by a later cause of independent origin that was not foreseeable. It is properly applied in admiralty cases. ". . . [T]he superseding cause doctrine can be recon- ciled with comparative negligence. Superseding cause operates to cut off the liability of an admittedly negli- gent defendant, and there is properly no apportionment of comparative fault where there is an absence of proxi- 2 Some commentators have suggested that there may be a distinction between a system allocating damages on the basis of comparative culpabil- ity, and a system allocating damages on the basis of both comparative culpability and the degree to which fault proximately or foreseeably con- tributed to an injury. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Pros- ser and Keeton on the Law of Torts 474 (5th ed. 1984) (hereinafter Kee- ton); 1 T. Schoenbaum, Admiralty and Maritime Law § 5­4, p. 167 (2d ed. 1994); Owen & Whitman, Fifteen Years Under Reliable Transfer: 1975­ 1990, Developments in American Maritime Law in Light of the Rule of Comparative Fault, 22 J. Mar. L. & Com. 445, 476­483 (1991). We con- tinue to use the term "comparative fault" employed in Reliable Transfer, but we do not mean thereby to take a position on which of these systems is the appropriate one, assuming that there is in fact a distinction be- tween them. 517US3$64N 02-07-99 19:29:17 PAGES OPINPGT 838 EXXON CO., U. S. A. v. SOFEC, INC. Opinion of the Court mate causation." 1 T. Schoenbaum, Admiralty and Mar- itime Law § 5­3, pp. 165­166 (2d ed. 1994). Indeed, the HIRI respondents assert that of the 46 States that have adopted a comparative fault system, at least 44 continue to recognize and apply the superseding cause doc- trine. Brief for HIRI Respondents 28, and n. 31; id., at App. A (listing state-court decisions). Exxon does not take issue with this assertion and concedes that it is not aware of any state decision that holds otherwise. Tr. of Oral Arg. 10. Exxon also argues that we should in any event eschew in the admiralty context the "confusing maze of common-law proximate cause concepts"; a system in which damages are allocated based upon the degree of comparative fault of any party whose act was a cause in fact of injury is "fairer and simpler," it says. Reply Brief for Petitioners 2. It is true that commentators have often lamented the degree of dis- agreement regarding the principles of proximate causation and confusion in the doctrine's application, see, e. g., Keeton 263, but it is also true that proximate causation principles are generally thought to be a necessary limitation on liabil- ity, see, e. g., id., at 264, 293, 294, 312. Indeed, the system Exxon apparently proposes either would let proximate cau- sation principles, with all of their complexity, creep back in as one factor in the "comparative fault" analysis itself, see n. 2, supra, or would produce extreme results. "In a philo- sophical sense, the consequences of an act go forward to eter- nity, and the causes of an event go back to the dawn of human events, and beyond." Keeton 264. Nevertheless, "the careless actor will [not] always be held for all dam- ages for which the forces that he risked were a cause in fact. Somewhere a point will be reached when courts will agree that the link has become too tenuous-that what is claimed to be consequence is only fortuity. Thus, if the [negligent] destruction of the Michigan Ave- nue Bridge had delayed the arrival of a doctor, with con- 517US3$64N 02-07-99 19:29:18 PAGES OPINPGT Cite as: 517 U. S. 830 (1996) 839 Opinion of the Court sequent loss of a patient's life, few judges would impose liability." Petition of Kinsman Transit Co., 338 F. 2d 708, 725 (CA2 1964), quoted in 1 Schoenbaum, supra, § 5­3, at 164. In ruling upon whether a defendant's blameworthy act was sufficiently related to the resulting harm to warrant impos- ing liability for that harm on the defendant, courts sitting in admiralty may draw guidance from, inter alia, the extensive body of state law applying proximate causation requirements and from treatises and other scholarly sources. See Keeton 279 (" `The best use that can be made of the authorities on proximate cause is merely to furnish illustrations of situa- tions which judicious men upon careful consideration have adjudged to be on one side of the line or the other' ") (quoting 1 T. Street, Foundations of Legal Liability 110 (1906)). B Exxon's argument that the District Court erred in render- ing judgment against Exxon on its breach of warranty claims fares no better. Exxon implicitly argues that because the respondents breached various contractual warranties, they were "best situated" to prevent the loss of the Houston; and Exxon invokes a passage from Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U. S. 315 (1964). In Italia Societa, we held that a stevedore breaches its im- plied warranty of workmanlike service to a shipowner when the stevedore nonnegligently supplies defective equipment that injures one of its employees during stevedoring opera- tions. That case does not purport to deal with the proxi- mate causation limitation for damages on a warranty claim and is not relevant to the question presented here. We agree with the Ninth Circuit that where the injured party is the sole proximate cause of the damage complained of, that party cannot recover in contract from a party whose breach of warranty is found to be a mere cause in fact of the damage. Although the principles of legal causation some- 517US3$64N 02-07-99 19:29:18 PAGES OPINPGT 840 EXXON CO., U. S. A. v. SOFEC, INC. Opinion of the Court times receive labels in contract analysis different from the "proximate causation" label most frequently employed in tort analysis, these principles nevertheless exist to restrict liabil- ity in contract as well. Indeed, the requirement of foresee- ability may be more stringent in the context of contract lia- bility than it is in the context of tort liability. See East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, 874­875 (1986); Restatement (Second) of Contracts § 351 and Comment a, pp. 135­136 (1979); 11 W. Jaeger, Williston on Contracts § 1344, pp. 227­228 (3d ed. 1968); 5 A. Corbin, Corbin on Contracts § 1008, pp. 75­76 (1964); id., § 1019, at 113­116; cf. 3 E. Farnsworth, Contracts § 12.14, pp. 241­243 (1990) (Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854), "impose[s] a more severe limitation on the recovery of damages for breach of contract than that applicable to ac- tions in tort or for breach of warranty, in which substantial or proximate cause is the test"). The finding that Captain Coyne's extraordinary negligence was the sole proximate cause of Exxon's injury suffices to cut off respondents' liabil- ity for that injury on a contractual breach of warranty theory as well. C The legal question that we took this case to address is whether a plaintiff in admiralty that is the superseding and thus the sole proximate cause of its own injury can recover part of its damages from tortfeasors or contracting partners whose blameworthy actions or breaches were causes in fact of the plaintiff's injury. As we have held above, the answer is that it may not. Apparently anticipating that this legal issue would not likely be resolved in its favor, Exxon devotes a large portion of its briefs to arguing that the findings by the lower courts that Captain Coyne's extraordinary negli- gence was the sole proximate cause of Exxon's injury were in error. The issues of proximate causation and superseding cause involve application of law to fact, which is left to the 517US3$64N 02-07-99 19:29:18 PAGES OPINPGT Cite as: 517 U. S. 830 (1996) 841 Opinion of the Court factfinder, subject to limited review. See, e. g., Milwau- kee & St. Paul R. Co. v. Kellogg, 94 U. S. 469, 473­476 (1877); Keeton 320­321; 5 Corbin, supra, § 998, at 22­23. "A court of law, such as this Court is, rather than a court for correc- tion of errors in fact finding, cannot undertake to review con- current findings of fact by two courts below in the absence of a very obvious and exceptional showing of error." Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275 (1949); see also Goodman v. Lukens Steel Co., 482 U. S. 656, 665 (1987); Reliable Transfer, 421 U. S., at 401, n. 2. Al- though Exxon identifies some tension in the various findings made by the courts below,3 we nevertheless conclude that Exxon has not made an "obvious and exceptional showing of error" that would justify our reversal of the courts' ultimate conclusion, reached after a 3-week trial and review of a lengthy and complex record. Without necessarily ratifying the application of proximate causation principles by the courts below to the particular facts here, we decline to recon- sider their conclusion. D Finally, Exxon argues that the District Court erred in bi- furcating the trial. This issue is not within the questions 3 Exxon argues that the courts' findings-that by 1803, the Nene had gained control of the end of the hose so that it was no longer a threat to the Houston, and that by 1830, the Houston had successfully avoided the peril resulting from alleged breaches of duty on respondents' part, had "reached a safe position," and was "heading out to sea and in no further danger of stranding"-are inconsistent with the apparently uncontested finding that the hose, which was suspended from the ship's crane during efforts to disconnect the hose from the ship, caused the crane to topple at 1944, injuring a crewman. We note in this regard that the District Court expressly found that the captain's failure to plot fixes after 1830 "was entirely independent of the fact of breakout" and that "he voluntarily de- cided not to plot fixes in a situation where he was able to plot fixes," App. to Pet. for Cert. 64; the Court of Appeals also relied upon the fact that Captain Coyne himself had explained that he did not plot fixes "because he felt it was unnecessary to do so," 54 F. 3d 570, 578 (CA9 1995). 517US3$64N 02-07-99 19:29:18 PAGES OPINPGT 842 EXXON CO., U. S. A. v. SOFEC, INC. Opinion of the Court upon which we granted certiorari. See Pet. for Cert. i. To the extent that Exxon argues that the issue involved here- whether one cause of injury is a superseding cause-can never be bifurcated from other issues, we reject that conten- tion. Again, Exxon relies upon Reliable Transfer in assert- ing that the fault of all parties must be considered together in order that they may be compared. As explained above, that argument is wrong: A party whose fault did not proxi- mately cause the injury is not liable at all. To the extent that Exxon argues that the District Court abused its discre- tion in dividing the trial in the particular way that it did here, we decline to address that argument. The judgment is affirmed. It is so ordered. 517US3$65Z 02-07-99 19:38:29 PAGES OPINPGT OCTOBER TERM, 1995 843 Syllabus UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. certiorari to the united states court of appeals for the federal circuit No. 95­591. Argued March 18, 1996-Decided June 10, 1996 Pursuant to § 4371 of the Internal Revenue Code, respondent International Business Machines Corporation (IBM) paid a tax on insurance premiums remitted to foreign insurers to cover shipments of goods to its foreign subsidiaries. When its refund claims were denied, IBM filed suit in the Court of Federal Claims, contending that § 4371's application to policies insuring export shipments violated the Export Clause, which states that "[n]o Tax or Duty shall be laid on Articles exported from any State." The court agreed, rejecting the Government's argument that Thames & Mersey Marine Ins. Co. v. United States, 237 U. S. 19-in which this Court held that a federal stamp tax on policies insuring marine risks could not, under the Export Clause, be constitutionally applied to poli- cies covering export shipments-had been superseded by subsequent decisions interpreting the Import-Export Clause, which states in rele- vant part, "No State shall . . . lay any Imposts or Duties on Imports or Exports." The Court of Appeals affirmed. Held: The Export Clause prohibits assessment of nondiscriminatory federal taxes on goods in export transit. Pp. 846­863. (a) While this Court has strictly enforced the Export Clause's prohibi- tion against federal taxation of goods in export transit and certain closely related services and activities, see, e. g., Thames & Mersey, supra, it has not exempted pre-export goods and services from ordinary tax burdens or exempted from federal taxation various services and activities only tangentially related to the export process, see, e. g., Cornell v. Coyne, 192 U. S. 418. Conceding that the tax assessed here violates the Export Clause under Thames & Mersey, the Government asks that the case be overruled because its underlying theory has been rejected in the context of the Commerce and Import-Export Clauses and those Clauses have historically been interpreted in harmony with the Export Clause. Pp. 846­850. (b) When this Court expressly disavowed its early view that the dor- mant Commerce Clause required a strict ban on state taxation of inter- state commerce, Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 288­289, it resolved a long struggle over the meaning of the nontextual negative command of that Clause. The Export Clause, on the other 517US3$65Z 02-07-99 19:38:29 PAGES OPINPGT 844 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Syllabus hand, expressly prohibits Congress from laying any tax or duty on ex- ports. These textual disparities strongly suggest that shifts in the Court's view of the dormant Commerce Clause's scope cannot govern Export Clause interpretation. Cf. Richfield Oil Corp. v. State Bd. of Equalization, 329 U. S. 69, 75­76. Pp. 850­853. (c) While one may question Thames & Mersey's finding that a tax on policies insuring exports is functionally the same as a tax on exportation itself, the Government apparently has chosen not to do so here. Under the principles that animate the policy of stare decisis, the Court declines to overrule Thames & Mersey's longstanding precedent, which has caused no uncertainty in commercial export transactions, on a theory not argued by the parties. Pp. 854­856. (d) This Court's recent Import-Export Clause cases do not require that Thames & Mersey be overruled. Meaningful textual differences that should not be overlooked exist between the Export Clause and the Import-Export Clause. In finding the assessments in Michelin Tire Corp. v. Wages, 423 U. S. 276, and Department of Revenue of Wash. v. Association of Wash. Stevedoring Cos., 435 U. S. 734, valid, the Court recognized that the Import-Export Clause's absolute ban on "Imposts or Duties" is not a ban on every tax. Because impost and duty are thus narrower terms than tax, a particular state assessment might be beyond the Import-Export Clause's reach, while an identical federal assessment might be subject to the Export Clause. The word "Tax" has a common, and usually expansive, meaning that should not be ignored. The Clauses were also intended to serve different goals. The Government's policy argument-that the Framers intended the Export Clause to nar- rowly alleviate the fear of northern repression through taxation of southern exports by prohibiting only discriminatory taxes-cannot be squared with the Clause's broad language. The better reading is that the Framers sought to alleviate their concerns by completely denying to Congress the power to tax exports at all. See Fairbank v. United States, 181 U. S. 283. Pp. 857­861. (e) Even assuming that Michelin and Washington Stevedoring gov- ern the Export Clause inquiry here, those holdings do not interpret the Import-Export Clause to permit assessment of nondiscriminatory taxes on imports and exports in transit. Pp. 861­862. 59 F. 3d 1234, affirmed. Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, Souter, and Breyer, JJ., joined. Ken- nedy, J., filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 863. Stevens, J., took no part in the consideration or decision of the case. 517US3$65Z 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 845 Opinion of the Court Jeffrey P. Minear argued the cause for the United States. On the briefs were Solicitor General Days, Assistant At- torney General Argrett, Deputy Solicitor General Wallace, Kent L. Jones, Gary R. Allen, and Ernest J. Brown. James R. Atwood argued the cause for respondent. With him on the brief was Andrew W. Singer. Justice Thomas delivered the opinion of the Court. We resolve in this case whether the Export Clause of the Constitution permits the imposition of a generally applicable, nondiscriminatory federal tax on goods in export transit. We hold that it does not. I Section 4371 of the Internal Revenue Code imposes a tax on insurance premiums paid to foreign insurers that are not subject to the federal income tax.1 26 U. S. C. § 4371 (1982 ed.). International Business Machines Corporation (IBM) ships products that it manufactures in the United States to numerous foreign subsidiaries and insures those shipments against loss. When the foreign subsidiary makes the ship- ping arrangements, the subsidiary often places the insurance with a foreign carrier. When it does, both IBM and the sub- sidiary are listed as beneficiaries in the policy. IBM filed federal excise tax returns for the years 1975 through 1984, but reported no liability under § 4371. The Internal Revenue Service (IRS) audited IBM and deter- mined that the premiums paid to foreign insurers were taxable under § 4371 and that IBM-as a named beneficiary of the insurance policies-was liable for the tax. The IRS assessed a tax against IBM for each of those years. IBM paid the assessments and filed refund claims, which the IRS denied. IBM then commenced suit in the Court of 1 The tax does not apply if a policy issued by a foreign insurer is "signed or countersigned by an officer or agent of the insurer in a State, or in the District of Columbia, within which such insurer is authorized to do busi- ness." 26 U. S. C. § 4373(1) (1982 ed.). 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT 846 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Opinion of the Court Federal Claims, contending that application of § 4371 to policies insuring its export shipments violated the Export Clause. The focus of the suit was this Court's decision in Thames & Mersey Marine Ins. Co. v. United States, 237 U. S. 19 (1915), in which we held that a federal stamp tax on policies insuring marine risks could not, under the Export Clause, be constitutionally applied to policies covering ex- port shipments. The United States argued that the analysis of Thames & Mersey is no longer valid, having been super- seded by subsequent decisions interpreting the Import- Export Clause-specifically, Michelin Tire Corp. v. Wages, 423 U. S. 276 (1976), and Department of Revenue of Wash. v. Association of Wash. Stevedoring Cos., 435 U. S. 734 (1978). The Court of Federal Claims noted that this Court has never overruled Thames & Mersey and ruled that application of § 4371 to policies insuring goods in export transit violates the Export Clause. 31 Fed. Cl. 500 (1994). The Court of Appeals for the Federal Circuit affirmed. 59 F. 3d 1234 (1995). We agreed to hear this case to decide whether we should overrule Thames & Mersey. 516 U. S. 1021 (1995). II The Export Clause states simply and directly: "No Tax or Duty shall be laid on Articles exported from any State." U. S. Const., Art. I, § 9, cl. 5. We have had few occasions to interpret the language of the Export Clause, but our cases have broadly exempted from federal taxation not only export goods, but also services and activities closely related to the export process. At the same time, we have attempted to limit the term "Articles exported" to permit federal taxation of pre-export goods and services. Our early cases upheld federal assessments on the manu- facture of particular products ultimately intended for export by finding that pre-export products are not "Articles ex- ported." See Pace v. Burgess, 92 U. S. 372 (1876); Turpin v. Burgess, 117 U. S. 504 (1886); Cornell v. Coyne, 192 U. S. 418 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 847 Opinion of the Court (1904). Pace and Turpin both involved a federal excise tax on tobacco products. In Pace, though tobacco intended for export was exempted from the tax, the exemption itself was subject to a per-package stamp charge of 25 cents. When a tobacco manufacturer challenged the stamp charge, we up- held the charge on the basis that the stamps were designed to prevent fraud in the export exemption from the excise tax and did not, therefore, represent a tax on exports. 92 U. S., at 375. When Congress later repealed the 25-cent charge for the exemption stamp in a statute that referred to the stamp as an "export tax," another manufacturer sued to re- cover the money it had paid for the exemption stamps. See Turpin, supra. Without disturbing the prior ruling in Pace that the stamp charge was not a tax on exports, 117 U. S., at 505, we explained that the prohibition of the Export Clause "has reference to the imposition of duties on goods by reason or because of their exportation or intended exportation, or whilst they are being exported," id., at 507. We said that the plaintiffs would have had no Export Clause claim even if there had been no exemption from the excise because the goods were not in the course of exportation and might never be exported. Ibid. Turpin broadly suggested that the Export Clause prohibits both taxes levied on goods in the course of exportation and taxes directed specifically at exports. In Cornell, the Court addressed whether the Export Clause prohibited application of a federal excise tax on filled cheese manufactured under contract for export. Looking to the analysis set out in Turpin, we rejected the contention that the Export Clause bars application of a nondiscrimina- tory tax imposed before the product entered the course of exportation. "The true construction of the constitutional provision is that no burden by way of tax or duty can be cast upon the exportation of articles, and does not mean that articles exported are relieved from the prior ordinary bur- dens of taxation which rest upon all property similarly situ- 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT 848 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Opinion of the Court ated." Cornell, supra, at 427. Pace, Turpin, and Cornell made clear that nondiscriminatory pre-exportation assess- ments do not violate the Export Clause, even if the goods are eventually exported. At the same time we were defining a domain within which nondiscriminatory taxes could permissibly be imposed on goods intended for export, we were also making clear that the Export Clause strictly prohibits any tax or duty, discrim- inatory or not, that falls on exports during the course of ex- portation. See Fairbank v. United States, 181 U. S. 283 (1901); United States v. Hvoslef, 237 U. S. 1 (1915); Thames & Mersey Marine Ins. Co. v. United States, supra. In Fair- bank, for example, we addressed a federal stamp tax on bills of lading for export shipments imposed by the War Revenue Act of 1898. The Court found that the tax was facially dis- criminatory, 181 U. S., at 290, and, though not directly im- posed on the goods being exported, the tax was nevertheless "in effect a duty on the article transported," id., at 294. Consequently, the tax fell directly into the category of forbid- den taxes on exports defined in Turpin. In striking down the tax, we said: "The requirement of the Constitution is that exports should be free from any governmental burden. The language is `no tax or duty.' Whether such provision is or is not wise is a question of policy with which the courts have nothing to do. We know historically that it was one of the compromises which entered into and made possible the adoption of the Constitution. It is a restriction on the power of Congress . . . ." 181 U. S., at 290. Hvoslef and Thames & Mersey differed from Fairbank in that the taxes imposed in those cases-on ship charters and marine insurance, respectively-did not facially discriminate against exports. The Court nonetheless prohibited the application of those generally applicable, nondiscriminatory 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 849 Opinion of the Court taxes to the transactions at issue because each tax was, in effect, a tax on exports. The type of charter contract at issue in Hvoslef was "in contemplation of law a mere con- tract of affreightment," 237 U. S., at 16, and we found that the tax, as applied to charters for exportation, "was in sub- stance a tax on the exportation; and a tax on the exportation is a tax on the exports," id., at 17. Likewise, in Thames & Mersey, we found that "proper insurance during the voyage is one of the necessities of exportation" and that "the taxa- tion of policies insuring cargoes during their transit to for- eign ports is as much a burden on exporting as if it were laid on the charter parties, the bills of lading, or the goods themselves." 237 U. S., at 27. Shortly after Hvoslef and Thames & Mersey, the Court rejected an attempt to shield from taxation the net income of a company engaged in the export business. William E. Peck & Co. v. Lowe, 247 U. S. 165 (1918). In accordance with the analysis set out in Turpin, we found both that the tax was nondiscriminatory and that "[i]t is not laid on articles in course of exportation or on anything which inherently or by the usages of commerce is embraced in exportation or any of its processes." 247 U. S., at 174. Only a few years later the Court struck down the applica- tion of a tax on the export sale of certain baseball equipment. See A. G. Spalding & Bros. v. Edwards, 262 U. S. 66 (1923). Although the tax was clearly nondiscriminatory, we ex- plained that the goods being taxed had entered the course of exportation when they were delivered to the export carrier. Id., at 70. Because the taxable event, the transfer of title, occurred at the same moment the goods entered the course of exportation, we held that the tax could not constitution- ally be applied to the export sale. Id., at 69­70. The Court has strictly enforced the Export Clause's prohi- bition against federal taxation of goods in export transit, and we have extended that protection to certain services and ac- tivities closely related to the export process. We have not, 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT 850 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Opinion of the Court however, exempted pre-export goods and services from ordi- nary tax burdens; nor have we exempted from federal taxa- tion various services and activities only tangentially related to the export process. III The Government concedes, as it did below, that this case is largely indistinguishable from Thames & Mersey and that, if Thames & Mersey is still good law, the tax assessed against IBM under § 4371 violates the Export Clause. See Tr. of Oral Arg. 5; 59 F. 3d, at 1237. The parties apparently agree that there is no legally significant distinction between the insurance policies at issue in this case and those at issue in Thames & Mersey, and, accordingly, the Government asks that we overrule Thames & Mersey. The Government asserts that the Export Clause permits the imposition of generally applicable, nondiscriminatory taxes, even on goods in export transit. The Government urges that we have historically interpreted the Commerce, Import-Export, and Export Clauses in harmony and that we have rejected the theory underlying Thames & Mersey in the context of the Commerce and Import-Export Clauses. Accordingly, the Government contends that our Export Clause jurisprudence, symbolized by Thames & Mersey, has become an anachronism in need of modernization. The Gov- ernment asks us to reinterpret the Export Clause to permit the imposition of generally applicable, nondiscriminatory taxes as we have under the Commerce Clause and, it argues, under the Import-Export Clause. A The Government contends that our dormant Commerce Clause jurisprudence has shifted dramatically and that our traditional understanding of the Export Clause, which is based partly on an outmoded view of the Commerce Clause, can no longer be justified. It is true that some of our early Export Clause cases relied on an interpretation of the 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 851 Opinion of the Court Commerce Clause that we have since rejected. In Fair- bank, 181 U. S., at 298­300, for example, we analogized to Robbins v. Shelby County Taxing Dist., 120 U. S. 489, 497 (1887), in which we held that "[i]nterstate commerce cannot be taxed at all [by the States], even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the state." Referring to the cate- gorical ban on taxation of interstate commerce declared in Robbins, we likened the scope of the Commerce Clause's ban on state taxation of interstate commerce to the Export Clause's ban on federal taxation of exports. Fairbank, supra, at 300; see also Hvoslef, 237 U. S., at 15 ("The court [in Fairbank] found an analogy in the construction which had been given to the commerce clause in protecting interstate commerce from state legislation imposing direct burdens"). After Thames & Mersey, the Commerce Clause construction espoused in Robbins fell out of favor, see Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 254 (1938) ("It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax bur- den even though it increases the cost of doing the business"), and we expressly disavowed that view in Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 288­289 (1977). Our rejection in Complete Auto of much of our early dormant Commerce Clause jurisprudence did not, however, signal a similar rejection of our Export Clause cases. Our decades-long struggle over the meaning of the nontextual negative command of the dormant Commerce Clause does not lead to the conclusion that our interpretation of the tex- tual command of the Export Clause is equally fluid. At one time, the Court may have thought that the dormant Com- merce Clause required a strict ban on state taxation of inter- state commerce, but the text did not require that view.2 2 The Commerce Clause is an express grant of power to Congress to "regulate Commerce . . . among the several States." U. S. Const., Art. I, § 8, cl. 3. It does not expressly prohibit the States from doing anything, 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT 852 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Opinion of the Court The text of the Export Clause, on the other hand, expressly prohibits Congress from laying any tax or duty on exports. These textual disparities strongly suggest that shifts in the Court's view of the scope of the dormant Commerce Clause should not, and indeed cannot, govern our interpretation of the Export Clause. Cf. Richfield Oil Corp. v. State Bd. of Equalization, 329 U. S. 69, 75­76 (1946) (distinguishing ac- commodations made under the Commerce Clause from the express textual prohibition of the Import-Export Clause). B The Government's primary assertion is that modifications in our Import-Export Clause jurisprudence require parallel modifications in the Export Clause context. More specifi- cally, the Government argues that our decisions in Michelin Tire Corp. v. Wages, 423 U. S. 276 (1976), and Department of Revenue of Wash. v. Association of Wash. Stevedoring Cos., 435 U. S. 734 (1978), establish that States may impose gener- ally applicable, nondiscriminatory taxes even if those taxes fall on imports or exports. The Export Clause, the Govern- ment contends, is no more restrictive. The Import-Export Clause, which is textually similar to the Export Clause, says in relevant part, "No State shall . . . lay any Imposts or Duties on Imports or Exports." U. S. Const., Art. I, § 10, cl. 2. Though minor textual differences exist and the Clauses are directed at different sovereigns, historically both have been treated as broad bans on taxation of exports, and in several cases the Court has interpreted the provisions of the two Clauses in tandem. For instance, in the Court's first decision interpreting the Import-Export Clause, Chief Justice Marshall said: though we have long recognized negative implications of the Clause that prevent certain state taxation even when Congress has failed to legislate. See Fulton Corp. v. Faulkner, 516 U. S. 325, 330­331 (1996); Quill Corp. v. North Dakota, 504 U. S. 298, 309 (1992). 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 853 Opinion of the Court "The States are forbidden to lay a duty on exports, and the United States are forbidden to lay a tax or duty on articles exported from any State. There is some diver- sity in language, but none is perceivable in the act which is prohibited." Brown v. Maryland, 12 Wheat. 419, 445 (1827). See also Kosydar v. National Cash Register Co., 417 U. S. 62, 67, n. 5 (1974); Hvoslef, supra, at 13­14; Cornell, 192 U. S., at 427­428; Turpin, 117 U. S., at 506­507. The Government argues that our longstanding parallel interpretations of the two Clauses require judgment in its favor. We disagree. In Michelin, we addressed whether a State could impose a nondiscriminatory ad valorem property tax on imported goods that were no longer in import transit. Michelin, which imported tires from Canada and France and stored them in a warehouse, argued that Georgia could not constitu- tionally assess ad valorem property taxes against its im- ported tires. We explained that "[t]he Framers of the Con- stitution . . . sought to alleviate three main concerns": (i) ensuring that the Federal Government speaks with one voice when regulating foreign commerce; (ii) preserving import revenues as a major source of federal revenue; and (iii) pre- venting disharmony likely to be caused if seaboard States taxed goods coming through their ports. Michelin, supra, at 285­286. The Court found that nondiscriminatory ad va- lorem taxes violate none of these policies. A century ear- lier, however, the Court had ruled that, under the "original package doctrine," a State could not impose such a tax until the goods had lost their character as imports and had been incorporated into the mass of property in the State. Low v. Austin, 13 Wall. 29, 34 (1872). The Michelin Court over- ruled Low and held that the nondiscriminatory property tax levied on Michelin's inventory of imported tires did not vio- late the Import-Export Clause because it was not an impost or duty on imports. 423 U. S., at 301. See also Limbach v. Hooven & Allison Co., 466 U. S. 353 (1984) (reaffirming that 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT 854 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Opinion of the Court Michelin expressly overruled the original package doctrine altogether and not merely Low on its facts). Two years later, in Washington Stevedoring, we upheld against an Import-Export Clause challenge a nondiscrimina- tory state tax assessed against the compensation received by stevedoring companies for services performed within the State. The Court found that Washington's stevedoring tax did not violate the policies underlying the Import-Export Clause. Unlike the property tax at issue in Michelin, the activity taxed by Washington occurred while imports and exports were in transit. That fact was not dispositive, how- ever, because the tax did not fall on the goods themselves: "The levy reaches only the business of loading and un- loading ships or, in other words, the business of trans- porting cargo within the State of Washington. Despite the existence of the first distinction, the presence of the second leads to the conclusion that the Washington tax is not a prohibited `Impost or Duty' when it violates none of the policies [that animate the Import-Export Clause]." Washington Stevedoring, supra, at 755. Relying on Canton R. Co. v. Rogan, 340 U. S. 511 (1951), which upheld a tax on the gross receipts of a railroad that operated a marine terminal and transported imports and ex- ports, we ruled in Washington Stevedoring that taxation of transportation services, whether by railroad on the docks or by stevedores loading and unloading ships, did not relate to the value of the goods and could not be considered imposts or duties on the goods themselves. 435 U. S., at 757. 1 A tax on policies insuring exports is not, precisely speak- ing, the same as a tax on exports, but Thames & Mersey held that they were functionally the same under the Export Clause. We noted in Washington Stevedoring that one may question the finding in Thames & Mersey that the tax was 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 855 Opinion of the Court essentially a tax upon the exportation itself. 435 U. S., at 756, n. 21. We expressed concern that "[t]he basis for distin- guishing Thames & Mersey is less clear" than for Fairbank or Richfield Oil, because the marine insurance policies in Thames & Mersey arguably "had a value apart from the value of the goods." 435 U. S., at 756, n. 21. Nevertheless, the Government apparently has chosen not to challenge that aspect of Thames & Mersey in this case. Tr. of Oral Arg. 5, 8­9, 40. When questioned on that implicit concession at oral argument, the Government admitted that it "chose not to" argue that § 4371 does not impose a tax on the goods them- selves. Id., at 9. It would be inappropriate for us to reex- amine in this case, without the benefit of the parties' briefing, whether the policies on which § 4371 is assessed are so closely connected to the goods that the tax is, in essence, a tax on exports.3 See, e. g., id., at 27­28 ("[T]he record doesn't reveal the sort of statistical information Justice Breyer was suggesting might be relevant" to determine "whether this is sufficiently indirect that it's not a tax on 3 The Court has never held that the Export Clause prohibits only direct taxation of goods in export transit. In Brown v. Maryland, 12 Wheat. 419 (1827), Chief Justice Marshall expressed in dicta his skepticism that a federal occupational tax on exporters could pass scrutiny under the Ex- port Clause. Id., at 445 ("[W]ould government be permitted to shield itself from the just censure to which this attempt to evade the prohibitions of the constitution would expose it, by saying that this was a tax on the person, not on the article, and that the legislature had a right to tax occu- pations?"). In Fairbank, Hvoslef, and Thames & Mersey, we struck down taxes that were not assessed directly on goods in export transit, but which the Court found to be so closely related as to be effectively a tax on the goods themselves. We have never repudiated that principle, but neither have we ever carefully defined how we decide whether a particular federal tax is sufficiently related to the goods or their value to violate the Export Clause. To the extent the issue was raised in the petition for certiorari, the Government failed to address the issue in its brief on the merits and therefore has abandoned it. See Posters `N' Things, Ltd. v. United States, 511 U. S. 513, 527 (1994); Russell v. United States, 369 U. S. 749, 754, n. 7 (1962). 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT 856 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Opinion of the Court exports, . . . because the Government has conceded through- out that they are not disputing that this tax, if discrimina- tory, is in violation of the Constitution"). Stare decisis is a "principle of policy," Helvering v. Hallock, 309 U. S. 106, 119 (1940), and not "an inexorable command," Payne v. Tennessee, 501 U. S. 808, 828 (1991). Applying that policy, we frequently have declined to over- rule cases in appropriate circumstances because stare decisis "promotes the evenhanded, predictable, and consistent devel- opment of legal principles, fosters reliance on judicial deci- sions, and contributes to the actual and perceived integrity of the judicial process." Id., at 827. "[E]ven in constitu- tional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some `special justification.' " Id., at 842 (Souter, J., concurring) (quoting Arizona v. Rumsey, 467 U. S. 203, 212 (1984)). Though from time to time we have overruled governing decisions that are "unworkable or are badly reasoned," Payne, supra, at 827; see Smith v. Allwright, 321 U. S. 649, 665 (1944), we have rarely done so on grounds not advanced by the parties. Thames & Mersey has been controlling precedent for over 80 years, and the Government does not, indeed could not, argue that the rule established there is "unworkable." Despite the dissent's speculative protesta- tions to the contrary, post, at 871­872, there is simply no evidence that Thames & Mersey has caused or will cause uncertainty in commercial export transactions. The princi- ples that animate our policy of stare decisis caution against overruling a longstanding precedent on a theory not argued by the parties, and we decline to do so in this case.4 4 The dissent suggests that "the Court assumes the statute to be invalid rather than deciding it to be so." Post, at 864. We make no such assump- tions. Rather, we begin with a longstanding decision that, by all ac- counts, controls this case. Even the Government agrees that Congress enacted a law whose application in this case directly contravenes our hold- 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 857 Opinion of the Court 2 What the Government does argue is that our Import- Export Clause cases require us to overrule Thames & Mersey.5 We have good reason to hesitate before adopting the analysis of our recent Import-Export Clause cases into our Export Clause jurisprudence. Though we have fre- quently interpreted the Clauses together, see supra, at 852­ 854, our more recent Import-Export Clause cases, on which the Government relies, caution that meaningful textual dif- ferences exist and should not be overlooked. The Export Clause prohibits Congress from laying any "Tax or Duty" on exports, while the Import-Export Clause prevents the States from laying any "Imposts or Duties" on imports or exports. In both Michelin and Washington Stevedoring, we left open the possibility that a particular state assessment might not properly be called an impost or duty, and thus would be beyond the reach of the Import-Export Clause, while an identical federal assessment might properly be called a tax and would be subject to the Export Clause. Though we found in Michelin that a nondiscriminatory state property tax does not transgress the policy dictates of the Import-Export Clause, we also recognized that the Import- Export Clause is "not written in terms of a broad prohibition of every `tax,' " and that impost and duty are narrower terms than tax. 423 U. S., at 290­293. In Washington Stevedor- ing, we likewise rejected the assertion that the Import- Export Clause absolutely prohibits all taxation of imports and exports. 435 U. S., at 759. We said that "the term `Im- post or Duty' is not self-defining and does not necessarily encompass all taxes" and that the respondents' argument to ing in Thames & Mersey. We sit not to condemn § 4371, but rather to determine whether it is to be saved by overruling binding precedent. 5 The dissent suggests that we make a "serious mistake" in deciding whether a nondiscriminatory tax on goods violates the Export Clause, post, at 881. We do not agree that it is a mistake to address the argu- ments actually advanced by the parties. 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT 858 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Opinion of the Court the contrary ignored "the central holding of Michelin that the absolute ban is only of `Imposts or Duties' and not of all taxes." Ibid. The distinction between imposts or duties and taxes is especially pertinent in light of the peculiar definitional analy- sis we chose in Michelin. Finding substantial ambiguity in the phrase "Imposts or Duties," we "decline[d] to presume it was intended to embrace taxation that does not create the evils the Clause was specifically intended to eliminate." 423 U. S., at 293­294. We entirely bypassed the etymologi- cal inquiry into the proper meaning of the terms "impost" and "duty," and instead created a regime in which those terms are conclusions to be drawn from an examination into whether a particular assessment "was the type of exaction that was regarded as objectionable by the Framers of the Constitution." Id., at 286. We are not prepared to say that the word "Tax" is "sufficiently ambiguous," id., at 293, that we may ignore its common, and usually expansive,6 meaning in favor of an Export Clause decisional rule in which a tax is not a "Tax" unless it discriminates against exports. Con- sequently, Michelin and Washington Stevedoring, which held that the assessments in question were not "Imposts or Duties" at all, do not logically validate the assessment at issue in this case, which, by all accounts, remains a "Tax." It is not intuitively obvious that Michelin's three-pronged analysis of the Framers' concerns is really just another way of stating a nondiscrimination principle. But even if it were, the Government cannot reasonably rely on Michelin to gov- ern the Export Clause because Michelin drew its analysis around the phrase "Imposts or Duties" and expressly ex- 6 Though Michelin discusses "taxes" in terms of "every exaction," 423 U. S., at 290, it also suggests that at the time of the founding "probably only capitation, land, and general property exactions were known by the term `tax' rather than the term `duty,' " id., at 291. In any event, the Michelin Court understood that the terms used in the Export Clause were broader than those used in the Import-Export Clause. 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 859 Opinion of the Court cluded the broader term "Tax" that appears in the Export Clause. Michelin marked a more permissive approach to state taxation under the Import-Export Clause only by dis- tinguishing the presumptively stricter language of the Ex- port Clause. We agree with the Government that Michelin informs our decision in this case, but not in a way that sup- ports the Government's position. It is simply no longer true that the Court perceives no substantive difference between the two Clauses. We are similarly hesitant to adopt the Import-Export Clause's policy-based analysis without some indication that the Export Clause was intended to alleviate the same "evils" to which the Import-Export Clause was directed. Unlike the Import-Export Clause, which was intended to protect federal supremacy in international commerce, to preserve federal revenue from import duties and imposts, and to pre- vent coastal States with ports from taking unfair advantage of inland States, see Michelin, supra, at 285­286, the Export Clause serves none of those goals. Indeed, textually, the Export Clause does quite the opposite. It specifically pro- hibits Congress from regulating international commerce through export taxes, disallows any attempt to raise federal revenue from exports, and has no direct effect on the way the States treat imports and exports. As a purely historical matter, the Export Clause was origi- nally proposed by delegates to the Federal Convention from the Southern States, who feared that the Northern States would control Congress and would use taxes and duties on exports to raise a disproportionate share of federal revenues from the South. See 2 M. Farrand, The Records of the Fed- eral Convention of 1787, pp. 95, 305­308, 359­363 (rev. ed. 1966). The Government argues that this "narrow historical purpose" justifies a narrow interpretation of the text and that application of § 4371 to policies insuring exports does not conflict with the policies embodied in the Clause. Brief for United States 32­34. While the original impetus may 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT 860 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Opinion of the Court have had a narrow focus, the remedial provision that ulti- mately became the Export Clause does not, and there is sub- stantial evidence from the Debates that proponents of the Clause fully intended the breadth of scope that is evident in the language. See, e. g., 2 Farrand, Records of the Federal Convention, supra, at 220 (Mr. King: "In two great points the hands of the Legislature were absolutely tied. The im- portation of slaves could not be prohibited-exports could not be taxed"); id., at 305 ("Mr. Mason urged the necessity of connecting with the power of levying taxes . . . that no tax should be laid on exports"); id., at 360 (Mr. Elseworth [sic]: "There are solid reasons agst. Congs taxing exports"); ibid. ("Mr. Butler was strenuously opposed to a power over exports"); id., at 361 (Mr. Sherman: "It is best to prohibit the National legislature in all cases"); id., at 362 ("Mr. Gerry was strenuously opposed to the power over exports"). The Government argued for a different narrow interpreta- tion of the Export Clause in Fairbank. See 181 U. S., at 292­293. Arguing that the Debates expressed a primary in- terest in diffusing sectional conflicts, the Government urged the Fairbank Court to interpret the Export Clause to permit taxation of "the act of exportation or the document evidenc- ing the receipt of goods for export, for these exist with sub- stantial uniformity throughout the country." Id., at 292. We rejected that argument: "If mere discrimination between the States was all that was contemplated, it would seem to follow that an ad valorem tax upon all exports would not be obnoxious to this constitutional prohibition. But surely under this limitation Congress can impose an export tax neither on one article of export, nor on all articles of export." Ibid. As in Fairbank, we think the text of the constitutional provi- sion provides a better decisional guide than that offered by 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 861 Opinion of the Court the Government. The Government's policy argument-that the Framers intended the Export Clause to narrowly alle- viate the fear of northern repression through taxation of southern exports by prohibiting only discriminatory taxes- cannot be squared with the broad language of the Clause. The better reading, that adopted by our earlier cases, is that the Framers sought to alleviate their concerns by completely denying to Congress the power to tax exports at all. 3 Even assuming that Michelin and Washington Stevedor- ing govern our Export Clause inquiry in this case, the Gov- ernment's argument falls short of its goal. Our holdings in Michelin and Washington Stevedoring do not reach the facts of this case and, more importantly, do not interpret the Import-Export Clause to permit assessment of nondiscrimi- natory taxes on imports and exports in transit. Michelin involved a tax on goods, but the goods were no longer in transit. The tax in Washington Stevedoring burdened im- ports and exports while they were still in transit, but it did not fall directly on the goods themselves. This case, as it comes to us, is a hybrid in which the tax both burdens ex- ports during transit and-as the Government concedes and our earlier cases held-is essentially a tax on the goods themselves. The Government argues that Michelin and Washington Stevedoring by analogy permit Congress to im- pose generally applicable, nondiscriminatory taxes that fall directly on exports in transit. Brief for United States 32 (Michelin and Washington Stevedoring "demonstrate that, when a generally applicable, nondiscriminatory tax is at issue, the mere fact that the tax applies also to goods that are in the export or import process does not provide a consti- tutional immunity from taxation"). If this contention is to succeed, the Government at the very least must show that our Import-Export Clause jurisprudence now permits a 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT 862 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Opinion of the Court State to impose a nondiscriminatory tax directly on goods in import or export transit. We think the Government has failed to make that showing. The Court has never upheld a state tax assessed directly on goods in import or export transit. In Michelin, we sug- gested that the Import-Export Clause would invalidate ap- plication of a nondiscriminatory property tax to goods still in import or export transit. 423 U. S., at 290 (compliance with the Import-Export Clause may be secured "by prohibit- ing the assessment of even nondiscriminatory property taxes on [import or export] goods which are merely in transit through the State when the tax is assessed"). See also Virginia Indonesia Co. v. Harris County Appraisal Dist., 910 S. W. 2d 905, 915 (Tex. 1995) (invalidating application of a nondiscriminatory ad valorem property tax to goods in export transit). We also declined to endorse the Government's theory in Washington Stevedoring. After reciting that the Court in Canton R. Co. had distinguished Thames & Mersey, Fair- bank, and Richfield Oil, we pointed out that in those cases "the State [or Federal Government] had taxed either the goods or activity so connected with the goods that the levy amounted to a tax on the goods themselves." Washington Stevedoring, 435 U. S., at 756, n. 21. We expressly declined to "reach the question of the applicability of the Michelin approach when a State directly taxes imports or exports in transit," id., at 757, n. 23, because, although the goods in that case were in transit, the tax fell on "a service distinct from the goods and their value," id., at 757. Thus, contrary to the Government's contention, this Court's Import-Export Clause cases have not upheld the validity of generally applicable, nondiscriminatory taxes that fall on imports or exports in transit. We think those cases leave us free to follow the express textual command of the Export Clause to prohibit the application of any tax "laid on Articles exported from any State." 517US3$65N 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 863 Kennedy, J., dissenting * * * We conclude that the Export Clause does not permit assessment of nondiscriminatory federal taxes on goods in export transit. Reexamination of the question whether a particular assessment on an activity or service is so closely connected to the goods as to amount to a tax on the goods themselves must await another day. We decline to overrule Thames & Mersey. The judgment of the Court of Appeals for the Federal Circuit is affirmed. It is so ordered. Justice Stevens took no part in the consideration or decision of this case. Justice Kennedy, with whom Justice Ginsburg joins, dissenting. The Court today holds a federal statute unconstitutional without giving heed to the simplest reason for sustaining it. We granted certiorari on the question "[w]hether, as applied to casualty insurance for losses incurred during the shipment of goods from locations within the United States to purchas- ers abroad, the tax imposed by Section 4371 of the Internal Revenue Code violates the Export Clause of the Constitution of the United States (U. S. Const. Art. I, § 9, Cl. 5)," Pet. for Cert. I. A straightforward answer to the question pre- sented requires us to address the narrow issue of the contin- uing validity of our holding in Thames & Mersey Marine Ins. Co. v. United States, 237 U. S. 19 (1915), that a general tax on certain insurance premiums, as applied to exporters, is a prohibited tax on export goods. Rejecting this course, the Court ventures upon a broad constitutional inquiry not even implicated by the statute. To do so, it rewrites the question presented. In the first sentence of the opinion, the Court says, "We resolve in this case whether the Export Clause of the Constitution permits the imposition of a generally applicable, nondiscriminatory 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT 864 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Kennedy, J., dissenting federal tax on goods in export transit," ante, at 845. In so reformulating the question, the Court makes the assumption that § 4371's insurance tax is a tax on export goods, thereby adopting the premise of Thames & Mersey that I had thought we were to address. In the end the Court assumes the statute to be invalid rather than deciding it to be so. I find no precedent for setting aside an Act of Congress in this peremptory way. Worse yet, the Court's assumption is wrong; because § 4371 taxes a service distinct from the goods and is not a proxy for taxing the goods, it does not fall within the prohibition of the Export Clause. The Court thus carves out an undeserved exemption from § 4371 for ex- porters, adding significant complexity to its administration. Moreover, in a case in which the Export Clause should not even apply, the Court tackles the great problem of reconcil- ing our Export Clause jurisprudence with modern decisions interpreting the Commerce and Import-Export Clauses, U. S. Const., Art. I, § 8, cl. 2, and Art. I, § 10, cl. 2. This is unwise and unnecessary. I would limit the inquiry to a reconsideration of Thames & Mersey, and uphold the statute as applied to respondent. With respect, I dissent. I We consider a rather simple federal tax. Section 4371 of the Internal Revenue Code imposes a tax of "4 cents on each dollar, or fractional part thereof, of the premium paid on the policy of casualty insurance or the indemnity bond, if issued to or for, or in the name of, an insured . . . ." 26 U. S. C. § 4371(1) (1982 ed.). The term "insured" is defined to in- clude any "domestic corporation or partnership, or an indi- vidual resident of the United States, against, or with respect to, hazards, risks, losses, or liabilities wholly or partly within the United States . . . ." § 4372(d)(1). The statute does not discriminate against exports. Indeed, it does not even men- tion them. The tax must be paid not only by domestic trad- ers but also by any insured, even an individual, who is cov- 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 865 Kennedy, J., dissenting ered in whole or in part for domestic casualty risks. The purpose of the tax is to "eliminate an unwarranted competi- tive advantage now favoring foreign insurers," H. R. Rep. No. 2333, 77th Cong., 2d Sess., 61 (1942), who do not pay federal income tax. Cf. 26 U. S. C. § 4373(1) (1982 ed.) (ex- empting from § 4371 any policy issued by a foreign insurer that is "signed or countersigned by an officer or agent of the insurer in a State, or in the District of Columbia, within which such insurer is authorized to do business" and is there- fore subject to the income tax). Resolution of the case requires us to determine whether the Export Clause has any bearing on taxes on services like insurance provided to exporters, where the service itself is not exported. The plain text of the Clause casts much doubt on the proposition. It states: "No Tax or Duty shall be laid on Articles exported from any State," U. S. Const., Art. I, § 9, cl. 5. The majority avoids this necessary question by asserting that the Government failed to argue the point and so abandoned it. Ante, at 855, and n. 3. True, the Govern- ment defends § 4371 on the ground that it does not discrimi- nate between exports and other forms of trade, but this is not a concession that there is no distinction between a tax on insurance premiums and a tax on goods. In fact, the Gov- ernment makes repeated references to the distinction in its briefs, albeit in the context of discussing the nondiscrimina- tory character of § 4371. See, e. g., Brief for United States 12­13 (The tax "does not apply specifically to export transac- tions; to the contrary, it applies only to insurance risks that are either `wholly' or `partly' domestic"); id., at 15 ("The tax imposed by Section 4371 of the Internal Revenue Code is not specifically directed to nor directly `laid on Articles exported' (U. S. Const. Art. I, § 9, Cl. 5). Instead, it applies to insur- ance premiums paid to foreign insurers for many forms of insurance, including any casualty risk that is `wholly or partly within the United States' (26 U. S. C. § 4372(d)(1))"); id., at 34 ("Even as applied to casualty insurance, the tax 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT 866 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Kennedy, J., dissenting unquestionably has only an incidental and remote relation- ship to exports and the export process . . ."). At oral argument, the Assistant to the Solicitor General acknowledged that he had not made a separate argument based on the distinction between export goods and services related to the exporting process. He explained that the nondiscrimination theory had greater utility, sparing courts the nettlesome inquiry into what is an export. Tr. of Oral Arg. 9. When asked why the Government was avoiding the simpler and clearer argument that § 4371 was just a tax on foreign insurers to offset the tax burdens borne by domestic insurers, he responded, "We do not mean to avoid that ar- gument. That's part of our argument of why this is a tax of general application." Id., at 12. Later in oral argument, he stated that "it's problematic to describe a tax on insur- ance as a tax on the good," and cited that problem as a reason for calling into question our decision in Thames & Mersey. Tr. of Oral Arg. 40. When asked if his position had fore- closed us from deciding the case on that basis, he responded: "I don't believe you're foreclosed . . . by our concession from addressing that issue as you see fit." Ibid. We have relied on statements more equivocal than this to reconsider and overrule a bad precedent even when the parties in their briefs had argued that the precedent should be upheld. See Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U. S. 313, 319­320 (1971). The Court's faulty characterization of the Government's argument leads it down some odd byways. For example, in Part III­B­3, the Court rejects the Government's attempt to rely upon Department of Revenue of Wash. v. Association of Wash. Stevedoring Cos., 435 U. S. 734 (1978), where we held that a state tax of general applicability imposed upon a stevedoring firm did not violate the Import-Export Clause even though it may have added to the cost of importing and exporting. The Court points out that the tax in Washington Stevedoring did not fall directly on the goods, ante, at 861, 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 867 Kennedy, J., dissenting and that we reserved the question whether States could tax goods in import or export transit, ante, at 862 (citing 435 U. S., at 757, n. 23). So, in the Court's view, Washington Stevedoring does not support the Government's argument that "Congress [may] impose generally applicable, nondis- criminatory taxes that fall directly on exports in transit," ante, at 861. The Government never argues that § 4371 im- poses a tax on goods in transit, however. See, e. g., Brief for United States 15 (the tax imposed by § 4371 "does not fall specifically on articles of export or export transactions"). If the Government can be faulted, it is for urging us to uphold § 4371 on a broad theory (a tax that does not discriminate against exports is valid) rather than the narrow theory sub- sumed within it (this particular tax does not fall on export goods at all). Nothing in the Government's argument pre- vents us from deciding the case on the narrower ground. Even were we to suppose that the Government did not argue the goods and services distinction, the prudential rule against deciding a case on an unargued theory is in any event not absolute. See Arcadia v. Ohio Power Co., 498 U. S. 73, 77 (1990); Erie R. Co. v. Tompkins, 304 U. S. 64, 77­78 (1938) (overturning Swift v. Tyson, 16 Pet. 1 (1842), as unconstitu- tional); see also 304 U. S., at 82 (Butler, J.) (pointing out that no constitutional question was argued or briefed either in this Court or the court below). Cf. Evans v. United States, 504 U. S. 255, 269 (1992) (addressing a theory not argued by the parties but advanced by Justice Thomas in dissent); United States v. Burke, 504 U. S. 229, 246 (1992) (Scalia, J., concurring in judgment). This rule has less force when the issue before us is whether it is constitutional to apply the statute where Congress intended it to apply. The predicate question of whether the Export Clause prohibits taxes on distinct services like insurance is "essential to the analysis" of the question presented, Procunier v. Navarette, 434 U. S. 555, 559­560, n. 6 (1978), and necessary to "an intelligent resolution of the constitutionality" of the statute, Vance v. 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT 868 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Kennedy, J., dissenting Terrazas, 444 U. S. 252, 258, n. 5 (1980). It is before us and should be decided. See this Court's Rule 14.1(a) ("The statement of any question presented will be deemed to comprise every subsidiary question fairly included therein"). To give Congress the respect it is owed, we must decide whether the statute is in fact unconstitutional as applied, not make the borderline call that the Government's litigation po- sition bars us from reaching a question which, as the Court seems to agree, is presented by the case. In interpreting statutes, for example, we have long observed "[t]he elemen- tary rule . . . that every reasonable construction must be resorted to, in order to save a statute from unconstitutional- ity." Hooper v. California, 155 U. S. 648, 657 (1895). See also United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909) ("[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter"); Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804). "This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Con- gress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). We have not considered ourselves foreclosed from adopting saving constructions the parties failed to suggest. See, e. g., Panama R. Co. v. Johnson, 264 U. S. 375, 389­391 (1924) (in- terpreting Jones Act to allow action to be brought in admi- ralty); cf. Brief for Plaintiff-in-Error 9­22 and Brief for 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 869 Kennedy, J., dissenting Defendant-in-Error 3­12, in Panama R. Co. v. Johnson, O. T. 1923, No. 369. We cannot here avoid a constitutional ques- tion by statutory construction, but we should take all meas- ures to avoid declaring that Congress "usurp[ed] power con- stitutionally forbidden it," DeBartolo, supra, at 575. The majority cites no case in which we have declared a federal statute unconstitutional by disregarding an unargued theory that would save the statute, and I am not aware of any. We should at least consider a construction of the Export Clause that would render it inapplicable to the statute, rather than assuming the issue away and reaching the unnecessary judg- ment that a coordinate branch violated the Constitution. There may be instances, even in constitutional cases, when we should eschew alternative theories for sustaining a stat- ute. For example, we might do so if the theories depend upon different provisions of law or require factual develop- ment and legal analysis far afield from that done by the par- ties or the courts below. That is not this case. The ques- tion whether the Export Clause applies to taxes on distinct export-related services requires most of the same inquiries the majority undertakes: construing the text of the Export Clause, considering its history and purpose, and reviewing our precedents. It also requires explicit reexamination of the reasoning of Thames & Mersey Marine Ins. Co. v. United States, 237 U. S. 19 (1915), which the Government has asked us to overrule, in particular the idea that a tax on insurance premiums is a tax on the goods. The last is the only step the Court refuses to take. There is not, as the Court intimates, ante, at 855, a need for statistical development of the relative incidence of this tax on exporters, unless the Court (as appears unlikely) is interested in the statistics from 1942 to determine if the stat- ute was a pretext when it was enacted. The current inci- dence of the tax on exporters, whatever it is, will reflect market conditions in light of the operation of this tax over more than 50 years, including the strength of foreign insur- 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT 870 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Kennedy, J., dissenting ers in certain lines exporters purchase, cf. R. Holtom, Under- writing Principles & Practices 451 (3d ed. 1987) (ocean ma- rine insurance dominated by foreign companies). There is no law prohibiting persons from being insured under policies of foreign insurers issued abroad, and nothing in the statute exempts nonexporters from its operation. The Court has all the information it needs to decide this case on the proper basis, and it should not rest its decision that § 4371 is uncon- stitutional upon a dubious assumption that a general tax on insurance premiums is a tax on export goods. In Massachusetts v. United States, 333 U. S. 611 (1948), the Government had conceded certain matters of statutory construction which, we felt, undermined its entire position. Id., at 624. We refused to accept those concessions, and, giving the statute its proper interpretation, ruled in the Government's favor. Id., at 625. It mystifies me that in a constitutional case, where our decision is not subject to con- gressional revision, the Court here accepts the Government's purported concession of the meaning of the Export Clause without any independent examination of the question, and then invokes the Clause to strike down a statute. See Torres v. Puerto Rico, 442 U. S. 465, 471, n. 3 (1979) ("[E]ven an explicit concession" by the Commonwealth of Puerto Rico that it was subject to the requirements of the Fourth Amendment would not "relieve this Court of the perform- ance of the judicial function of deciding the issue") (internal quotation marks omitted). Quite apart from the unnecessary judgment that an Act of Congress is unconstitutional as applied, today's decision adds significant complexity to the administration of § 4371. Under the thumb of the Court's holding that all premiums paid to insure export goods are exempt from § 4371, but also under the statutory mandate to collect the tax in all other instances, the Internal Revenue Service (IRS) henceforth finds itself faced with an array of new problems unexplained and unmentioned by the Court. Insurance is one of the 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 871 Kennedy, J., dissenting most complex of businesses, with a multitude of coverage and policy options in different product lines, all generated and still evolving in pursuit of the profitable and efficient underwriting of risks. Not every case will fit the simple model here: a policy written for a single shipment; coverage beginning only with a common carrier picking up the goods from the warehouse or manufacturing plant; simple ascer- tainment of point of entry into the export stream. Stip- ulation of Facts ¶¶ 13, 16, App. to Pet. for Cert. 37a, 39a; cf. A. G. Spalding & Bros. v. Edwards, 262 U. S. 66, 68­69 (1923) (delivery to common carrier signals commencement of export). Commercial inland marine transit insurance, the form of casualty insurance which covers domestic transportation of goods, "is usually written on an open basis, under which all shipments of the kind of merchandise described in the policy are covered." Holtom, supra, at 435. It would appear, from today's decision, that if a company has an open policy from a foreign insurer covering the domestic leg of the jour- ney for all shipments, the IRS must untangle what portion of the insurance covered goods that had commenced the proc- ess of exportation, and then prorate the tax. So too would proration (or some other accommodation) appear necessary if the policy is taken out on a single shipment but part of the shipment is delivered within the country and part abroad. In addition, the Court's decision draws the IRS into the factual morass of determining when exportation has begun. That will often be less clear than it is here. For example, a company may have its own trucks carry goods to a freight forwarder or port, or a hiatus in the journey might be exten- sive enough to remove the goods from the export stream, see Joy Oil Co. v. State Tax Comm'n, 337 U. S. 286, 288­289 (1949); since "not every preliminary movement of goods to- ward eventual exportation" triggers the constitutional im- munity, Kosydar v. National Cash Register Co., 417 U. S. 62, 69, n. 6 (1974), the determination of the commencement of 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT 872 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Kennedy, J., dissenting exportation is another layer of complexity added to the ad- ministration of § 4371. Finally, the IRS now must deter- mine which of the many, ever evolving types of insurance fall within the broad prohibition of Thames & Mersey against any tax that burdens the exporting process. See 237 U. S., at 27. Truckers, for example, often take insurance out to cover liability for the loss or damage to merchandise that they are carrying. Holtom, supra, at 435. The cost of that insurance, which may be specific to an export shipment and related to the value of the goods, is likely passed through in some measure to the exporter and therefore "falls upon the exporting process," Thames & Mersey, 237 U. S., at 27. Questions will also arise whether it violates the Export Clause to tax insurance taken out by an export freight- forwarder to cover a warehouse storing goods in transit, or to tax ocean marine protection and indemnity insurance taken out by a vessel owner to protect against damage to export cargo, cf. Holtom, supra, at 452, if part of the risk covered is domestic. The severity of these administrative burdens will depend in part upon the penetration of the domestic market by for- eign insurers in certain lines. We can anticipate increased burdens with the 4% price cut in foreign insurance for ex- porters that results from today's decision. The Court is wrong to frustrate the will of Congress by giving exporters an undeserved exemption from § 4371 and by adding needless complexity to the administration of the statute, all upon the incorrect, unexamined assumption that the tax is on ex- ported goods. II Turning to the question that I take to be dispositive, I would hold that the Export Clause does not apply to § 4371. The text and history of the Clause, and its interpretation by the Fifth Congress, suggest that taxes on insurance do not fall within its prohibitions. Because § 4371 taxes a service distinct from the actual export of the goods, and does not 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 873 Kennedy, J., dissenting function as a proxy for taxing their value, I would uphold its application to International Business Machines Corporation (IBM). In my view, the Framers understood the Export Clause to prohibit what its text says: any federal tax "laid on Articles exported," U. S. Const., Art. I, § 9, cl. 5, not taxes on services like insurance that may have indirect effect on the cost of exporting. There was a history of nations' imposing oner- ous taxes on exported goods, even in England until the rise of mercantilist trade policy resulted in the repeal of most export taxes by the end of the 17th century, see W. Kennedy, English Taxation 1640­1799, p. 35 (1913). And specific taxes on exported goods were the only taxes mentioned in the debate at the Constitutional Convention over the Export Clause. For example, Gouverneur Morris of Pennsylvania, opposing the Clause, favored taxing exports as an alterna- tive to direct taxes on individuals. "He considered the taxing of exports to be in many cases highly politic. Virginia has found her account in taxing Tobacco. All Countries having peculiar articles tax the exportation of them; as France her wines and brandies. A tax here on lumber, would fall on the W. Indies & punish their restrictions on our trade. The same is true of live-stock and in some degree of flour. In case of a dearth in the West Indies, we may extort what we please. Taxes on exports are a necessary source of rev- enue. For a long time the people of America will not have money to pay direct taxes. Seize and sell their effects and you push them into Revolts." 2 M. Farrand, Records of the Federal Convention of 1787, p. 307 (rev. ed. 1966). See also id., at 306 (Mr. Madison: taxes on exported goods, like tobacco, in which Americans were unrivalled would shift the tax burden to foreigners); id., at 360 (Gouverneur Morris: taxes on goods are essential to embargoes, while taxes on 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT 874 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Kennedy, J., dissenting ginseng and ship masts would shift the tax burden abroad, and taxes on skins, beavers, and other raw materials might encourage American manufactures); id., at 361 (Mr. Dicken- son [sic]: suggesting exemption of certain articles from the Export Clause); id., at 362 (Mr. Fitzimmons: discussing du- ties imposed on wool by Great Britain). Proponents of the Export Clause also focused on taxes on goods. Id., at 307 (Mr. Mercer: a tax on exported goods encourages the raising of articles not meant for exportation); id., at 360 (Mr. Wil- liamson: discussing taxation of North Carolina tobacco by Virginia); id., at 361 (Mr. Sherman: general prohibition on power to tax exports necessary because "[a]n enumeration of particular articles would be difficult invidious and im- proper"); id., at 363 (Colonel Mason: discussing Virginia tax on tobacco; Mr. Clymer: discussing middle States' apprehen- sions of taxes on products like wheat flour and provisions that, unlike tobacco and rice, were sold in competitive mar- kets). Oliver Ellsworth of Connecticut even contended that he opposed export taxes in part because "there are indeed but a few articles that could be taxed at all; as Tobo. rice & indigo, and a tax on these alone would be partial & unjust." Id., at 360. In interpreting constitutional restrictions on the taxing power, we must recall that the want of this power in the National Government was one of the great weaknesses of the Articles of Confederation. With its expenses outpacing revenues from requisitions from the States, the central Gov- ernment had emptied its vaults by 1782 and soon defaulted on its substantial debt. R. Paul, Taxation in the United States 4­5 (1954). As the Convention records indicate, de- priving the Federal Government of the power to tax even export goods was a contentious issue, given the concern that it would cut off a needed source of revenue as well as disable Congress from using export taxes as an instrument of policy. Madison's last-minute proposal that the Export Clause's total prohibition on taxing exports be replaced with a provision 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 875 Kennedy, J., dissenting requiring a two-thirds vote of each House failed by the vote of only one State. 2 Farrand, supra, at 363. There is no cause for extending the Export Clause beyond the bargain struck at the Convention and embodied in its text. There is other compelling historical evidence weighing against Thames & Mersey's view of the Export Clause as a prohibition extending even to taxes on services that have the indirect effect of raising exportation costs. In 1797 the Fifth Congress passed "An Act laying Duties on stamped Vellum, Parchment and Paper." Among its provisions was a stamp duty upon "any policy of insurance or instrument in nature thereof, whereby any ships, vessels or goods going from one dis- trict to another in the United States, or from the United States to any foreign port or place, shall be insured, to wit, if going from one district to another in the United States, twenty-five cents; if going from the United States to any foreign port or place, when the sum for which insurance is made shall not exceed five hundred dollars, twenty-five cents; and when the sum insured shall exceed five hundred dollars, one dollar . . . ." Act of July 6, 1797, ch. 11, § 1, 1 Stat. 527. The duties survived until the unpopular Federalist tax sys- tem, which was felt to bear too heavily upon those least able to pay, was abolished soon after Jefferson took office. See Paul, supra, at 6. We have always been reluctant to say a statute of this early origin offends the Constitution, absent clear inconsist- ency. See Knowlton v. Moore, 178 U. S. 41, 56 (1900) (impo- sition of legacy taxes in the same 1797 statute casts doubt on claim that Congress lacks such power); see Ludecke v. Watkins, 335 U. S. 160, 171 (1948) ("The [Alien Enemy Act of 1798] is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offen- sive to some emanation of the Bill of Rights"). The 1797 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT 876 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Kennedy, J., dissenting statute should dispel any doubt on the issue. Taxes on in- surance do not offend the Export Clause. It is not likely, moreover, that the Act was passed to circumvent the Export Clause. The early Congresses were scrupulous in honoring the Export Clause by making specific exemptions for exports in laws imposing general taxes on goods. See, e. g., Act of Mar. 3, 1791, ch. 15, § 51, 1 Stat. 199, 210­211 (tax on distilled spirits); Act of June 5, 1794, ch. 51, § 14, 1 Stat. 384, 387 (tax on snuff and refined sugar). Their refusal to grant export- ers similar exemptions from insurance taxes indicates that those taxes were not viewed as equivalent to taxes on goods. In Fairbank v. United States, 181 U. S. 283 (1901), the Court struck down an 1898 statute imposing a stamp tax on an export bill of lading despite a similar tax in the 1797 stat- ute. The decision in Fairbank was 5­4, with a strong dis- sent from the first Justice Harlan urging deference to the implicit exposition of the Export Clause by the Fifth Con- gress. The Court, though, reserved the contemporaneous- exposition rule for " `doubtful cases,' " id., at 311, and had no doubt that the "discriminating and excessive tax" imposed on export bills of lading in the 1898 Act (10 times that imposed on internal bills of lading, id., at 290) was unconstitutional. There is no need to reconsider Fairbank, nor to distinguish it by sole reliance upon the interpretation offered in Wash- ington Stevedoring, which observed that the stamp duty at issue in Fairbank "effectively taxed the goods because the bills represented the goods," 435 U. S., at 756, n. 21. The tax here, unlike the stamp duty in Fairbank, does not dis- criminate against exports; it taxes a service distinct from the act of exporting; and it has the clear regulatory purpose of eliminating a perceived competitive advantage of foreign insurers. Viewed in this light, the conclusion of the Fifth Congress that the Export Clause did not bar any tax on export insurance should have great weight in assessing the 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 877 Kennedy, J., dissenting constitutionality of § 4371, and Fairbank is not to the contrary. Turning once more to Thames & Mersey, I note the 1797 statute was neither briefed to the Court there nor discussed in its opinion. The Court, furthermore, did not examine the text or history of the Export Clause, relying instead on the broad theory of the Clause espoused in the companion case, United States v. Hvoslef, 237 U. S. 1 (1915): namely, that it meant the "process of exporting . . . should not be ob- structed or hindered by any burden of taxation," id., at 13 (internal quotation marks and citation omitted). See Thames & Mersey, 237 U. S., at 25. (Hvoslef's holding that a nondiscriminatory tax on charter parties was unconstitu- tional as applied to export shipments, by the way, is also called into question by the 1797 Act, which imposed a simi- lar tax.) Besides failing to consider the evidence just cited, the Thames & Mersey Court relied in part on the theory that insurance is not commerce and so, by implication, the regula- tory aspect of the tax could not be justified as an exercise of Congress' Commerce Clause power. See Thames & Mersey, supra, at 25, citing Paul v. Virginia, 8 Wall. 168 (1869). As a result, the Court reasoned, an insurance policy was simply a personal contract and a document which, by custom, was a necessary part of every export transaction. 237 U. S., at 25­ 26. A tax on the premiums of such a policy, which fell upon the exporting process and increased its costs, was thought to be the equivalent to a tax laid on charter parties, bills of lading, or the goods themselves. Id., at 27. We abandoned long ago the notion that insurance is not commerce and so beyond the power of Congress to regulate. See United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 543­545 (1944). Congress enacted § 4371 to regulate compe- tition within the insurance field, and its authority to do so ought not to be impaired by a strained reading of the Export 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT 878 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Kennedy, J., dissenting Clause or reliance on the outmoded reasoning of Thames & Mersey. We have discarded, in Import-Export Clause cases, the idea afoot in Hvoslef and Thames & Mersey that a tax on services necessary to the export process is equivalent to a tax on goods. In Canton R. Co. v. Rogan, 340 U. S. 511 (1951), the Court upheld a state gross-receipts tax on a steam railroad, even as applied to the railroad's handling of exports and imports from its marine terminal in the port of Balti- more. The tax was "not on the goods but on the handling of them at the port," we said, and "when the tax is on activities connected with the export or import the range of immunity cannot be so wide." Id., at 514­515. Following Canton, the Court in Washington Stevedoring decided that taxes on services may be permissible even if levied upon an activity, such as stevedoring, which occurs while imports and exports are in transit. We remarked: "The transportation services in both settings are necessary to the import-export process. Taxation in neither setting relates to the value of the goods, and therefore in neither can it be considered taxation upon the goods themselves." 435 U. S., at 757. The distinctions drawn between services and goods in those cases did not depend on the differences between the text of the Export and Import-Export Clauses, and should be observed here. The Court's effort to justify its decision on the grounds of stare decisis, ante, at 856, is unconvincing. Stare decisis does not protect a constitutional decision where the reason- ing is as poor as it is in Thames & Mersey, see Smith v. Allwright, 321 U. S. 649, 665 (1944), nor when the precedent, even if not yet proved unworkable, is at odds with more re- cent cases, see Fulton Corp. v. Faulkner, 516 U. S. 325, 345 ­ 346 (1996). It is, moreover, just a matter of time before Thames & Mersey proves itself unworkable; prior to today, it had not been given the chance to work its mischief on § 4371. As we move to a more service-intensive and export- oriented economy, and as policymakers and experts debate 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 879 Kennedy, J., dissenting the wisdom of shifting from income to excise taxes, see Lugar, The National Sales Tax: Avoiding the Zero-Sum Scenario, 48 Tax Executive 26 (1996); Bartlett, Replacing Federal Taxes with a Sales Tax, 68 Tax Notes 997 (1995), we should not use shaky precedent to deprive Congress of important regulatory and revenue-raising options. As re- spondent conceded at oral argument, Tr. of Oral Arg. 31, the reasoning of Thames & Mersey invites claims by export service providers for exemptions from any number of federal excise taxes, for example, a challenge to the diesel-fuel tax, 26 U. S. C. § 4041, by truckers carrying export shipments. The Export Clause cannot bear this reading. The protections of the Export Clause must extend, per- haps, somewhat beyond specific taxes on goods, for "[i]f it meant no more than that, the obstructions to exportation which it was the purpose to prevent could readily be set up by legislation nominally conforming to the constitutional restriction but in effect overriding it." Hvoslef, supra, at 13. As a result, the Court has found certain taxes to be proxies for taxes on the goods. See Washington Stevedor- ing, supra, at 756, n. 21 (discussing sales tax struck down in Richfield Oil Corp. v. State Bd. of Equalization, 329 U. S. 69 (1946), and the tax on a bill of lading struck down in Fair- bank v. United States, 181 U. S. 283 (1901)). In Washington Stevedoring, we expressed some doubt that the tax on insur- ance in Thames & Mersey fell in this forbidden category, but, to avoid overruling the case, "note[d] that the value of goods bears a much closer relation to the value of insurance policies on them than to the value of loading and unloading ships." 435 U. S., at 756, n. 21. The insurance premiums taxed here, like those taxed in Thames & Mersey, bear some relation to the value of the goods, but this does not make them a proxy for a tax on the goods. Premiums, i. e., the price of insurance, depend on risk of loss, and value of the goods is only one component factor of risk. So much is made clear by Stipulation 16 in 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT 880 UNITED STATES v. INTERNATIONAL BUSINESS MACHINES CORP. Kennedy, J., dissenting this case. Before the premiums for a shipment of IBM goods of a certain value could be fixed, a premium rate had to be determined. The rate was a function of the risk fac- tors specific to a particular shipment: "the place of origin and destination of the goods, the type of goods involved and how they were packaged, the time and distance of the trip, the route and mode(s) of transportation, and the amount of mate- rial handling expected during the trip." Premiums were then determined by multiplying the value of the goods by the shipment-specific premium rate. Stipulation of Facts ¶ 16, App. to Pet. for Cert. 39a. Cf. Holtom, Underwriting Principles & Practices, at 453­457 (discussing various factors taken into account in underwriting ocean marine insurance, such as nationality of the crew, vessel management, seawor- thiness of the vessel, suitability of the vessel for specific cargo, packaging, season of travel, perishability, pilferage risks at ports of call, and risks of damage from accompanying cargo). The premium charged to insure a million dollars of goods for the short overland journey from IBM's computer factory in Richfield, Minnesota, to a customer in Quebec would be trifling in comparison to the premium charged to insure transport of goods of equivalent value from its factory in San Jose, California, across the continent east to New York and then by sea to Russia. Cf. Stipulation of Facts, App. to Pet. for Cert. 36a­37a; Brief for Respondent 3, n. 2. Given the stipulated, undeniable premise that premiums are graded by risk of loss, they are not a predictable proxy for a Congress intent upon taxing export value. Premiums are a rough proxy, however, for the income of foreign insurers, which is why a Congress intent on eliminating the income tax advantages of those insurers would structure § 4371 as it did. Section 4371's requirement that the insurance cover domestic risks in whole or in part is further evidence that Congress did not intend it to operate as a proxy for taxing exports. A statute that exempts all exporters who use a 517US3$65L 02-07-99 19:38:29 PAGES OPINPGT Cite as: 517 U. S. 843 (1996) 881 Kennedy, J., dissenting domestic insurer for the inland leg of a shipment is not an effective instrument for taxing export goods. I would uphold § 4371 as applied to IBM because the stat- ute imposes a tax on a distinct export-related service and is not a proxy for a tax on the exports themselves. The Court, in my view, makes a serious mistake in assuming the oppo- site and reaching the question whether a nondiscriminatory tax on goods violates the Export Clause. I would reverse the judgment of the Court of Appeals for the Federal Circuit. 517US3$66Z 02-07-99 19:44:48 PAGES OPINPGT 882 OCTOBER TERM, 1995 Syllabus LOCKHEED CORP. et al. v. SPINK certiorari to the united states court of appeals for the ninth circuit No. 95­809. Argued April 22, 1996-Decided June 10, 1996 Because respondent Spink was 61 when petitioner Lockheed Corporation reemployed him in 1979, he was excluded from participation in Lock- heed's retirement plan (Plan), as was then permitted by the Employee Retirement Income Security Act of 1974 (ERISA). Section 9203(a)(1) of the Omnibus Budget Reconciliation Act of 1986 (OBRA) repealed ERISA's age-based exclusion provision, and §§ 9201 and 9202 amended ERISA and the Age Discrimination in Employment Act of 1967 (ADEA), respectively, to prohibit age-based benefit accrual rules. To comply with OBRA, Lockheed made Spink and other previously ex- cluded employees Plan members, but made clear that they would not receive credit for their pre-1988 service years. Lockheed subsequently added to the Plan two programs offering increased pension benefits to employees who would retire early in exchange for their waiver of any employment claims against Lockheed. Not wishing to waive any ADEA or ERISA claims, Spink declined to participate and retired with- out earning the extra benefits. He then filed suit, alleging among other things that Lockheed and petitioner board of directors members vio- lated ERISA by amending the Plan to create the retirement programs, that petitioner Retirement Committee members violated ERISA by implementing the amended Plan, and that the OBRA amendments to ERISA and the ADEA required that Spink's pre-1988 service years be counted toward his benefits. The District Court dismissed the com- plaint for failure to state a claim, but the Court of Appeals reversed in relevant part. In finding the Plan amendments unlawful under ERISA § 406(a)(1)(D)-which prohibits a fiduciary from causing a plan to engage in a transaction that transfers plan assets to, or involves the use of plan assets for the benefit of, a party in interest-the court decided that there was no need to address Lockheed's status as a fiduciary. It also found that Lockheed's refusal to credit Spink with his pre-1988 service years violated the OBRA amendments, which the court decided ap- plied retroactively. Held:1. ERISA §406 does not prevent an employer from conditioning the receipt of early retirement benefits upon plan participants' waiver of employment claims. Pp. 887­895. 517US3$66Z 02-07-99 19:44:48 PAGES OPINPGT Cite as: 517 U. S. 882 (1996) 883 Syllabus (a) Unless a plaintiff shows that a fiduciary caused the plan to en- gage in the allegedly unlawful transaction, there can be no § 406(a)(1) violation warranting relief. Cf. Peacock v. Thomas, 516 U. S. 349, 353. Thus, the Court of Appeals erred by not asking whether fiduci- ary status existed in this case before finding a § 406(a)(1)(D) violation. Pp. 888­889. (b) Lockheed and the board of directors, as plan sponsors, were not acting as fiduciaries when they amended the Plan. Given ERISA's definition of fiduciary and the applicability of the duties attending that status, the rule that this Court announced with respect to the amend- ment of welfare benefit plans in Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73, applies equally to the amendment of pension plans. Thus, when employers or other plan sponsors adopt, modify, or terminate pen- sion plans, they do not act as fiduciaries, id., at 78, but are analogous to settlors of a trust. Pp. 889­891. (c) It is not necessary to decide whether the Retirement Committee members acted as fiduciaries, because their payment of benefits pursu- ant to the terms of an otherwise lawful plan was not a "transaction" prohibited by § 406(a)(1)(D). That section does not in direct terms in- clude an employer's payment of benefits. And the "transactions" pro- hibited by other provisions of § 406(a) generally involve uses of plan assets that are potentially harmful to the plan. The payment of bene- fits conditioned on performance by plan participants cannot reasonably be said to share that characteristic. Pp. 892­895. 2. OBRA §§ 9201 and 9202(a) do not apply retroactively to require Lockheed to use pre-1988 service years in calculating Spink's benefits. Congress expressly provided, in OBRA § 9204(a)(1), that the amend- ments to ERISA and the ADEA would be effective with respect to plan years beginning on or after January 1, 1988. Since the amendments' temporal effect is manifest on the statute's face, "there is no need to resort to judicial default rules," Landgraf v. USI Film Products, 511 U. S. 244, 280, and inquiry is at an end. Pp. 896­897. 60 F. 3d 616, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Scalia, Kennedy, and Ginsburg, JJ., joined, and in which Souter and Breyer, JJ., joined as to all but Part III­B. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Souter, J., joined, post, p. 898. Gordon E. Kirscher argued the cause for petitioners. With him on the briefs were David E. Gordon, Kenneth E. Johnson, Kenneth S. Geller, and Ralph A. Hurvitz. 517US3$66Z 02-07-99 19:44:48 PAGES OPINPGT 884 LOCKHEED CORP. v. SPINK Opinion of the Court Richard P. Bress argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Argrett, Edwin S. Kneedler, Kenneth L. Greene, J. Davitt McAteer, Allen H. Feldman, and Edward D. Sieger. Theresa M. Traber argued the cause for respondent. With her on the brief was Bert Voorhees.* Justice Thomas delivered the opinion of the Court. In this case, we decide whether the payment of benefits pursuant to an early retirement program conditioned on the participants' release of employment-related claims consti- tutes a prohibited transaction under the Employee Retire- ment Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. We also determine whether the 1986 amendments to ERISA and the Age Dis- crimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., forbidding age- based discrimination in pension plans apply retroactively. I Respondent Paul Spink was employed by petitioner Lock- heed Corporation from 1939 until 1950, when he left to work *Briefs of amici curiae urging reversal were filed for the ERISA Indus- try Committee by Michael E. Horne and John M. Vine; for the Equal Employment Advisory Council by Douglas S. McDowell and Ellen Duffy McKay; and for the New England Legal Foundation by William J. Kil- berg, Peter H. Turza, Paul Blankenstein, Mark Snyderman, and Stephen S. Ostrach. Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Cathy Ventrell-Monsees and Mary Ellen Signorille; for the Engineers and Scientists Guild, Lockheed Sec- tion, by Stuart Libicki; and for the National Employment Lawyers Asso- ciation by Stephen R. Bruce, Ronald Dean, and Jeffrey Lewis. Briefs of amici curiae were filed for the American Academy of Actuar- ies et al. by Lauren M. Bloom; and for the Chamber of Commerce of the United States by Hollis T. Hurd, Stephen A. Bokat, and Robin S. Conrad. 517US3$66N 02-07-99 19:44:48 PAGES OPINPGT Cite as: 517 U. S. 882 (1996) 885 Opinion of the Court for one of Lockheed's competitors. In 1979, Lockheed per- suaded Spink to return. Spink was 61 years old when he resumed employment with Lockheed. At that time, the terms of the Lockheed Retirement Plan for Certain Salaried Individuals (Plan), a defined benefit plan, excluded from par- ticipation employees who were over the age of 60 when hired. This was expressly permitted by ERISA. See 29 U. S. C. § 1052(a)(2)(B) (1982 ed.). Congress subsequently passed the Omnibus Budget Rec- onciliation Act of 1986 (OBRA), Pub. L. 99­509, 100 Stat. 1874. Section 9203(a)(1) of OBRA, 100 Stat. 1979, repealed the age-based exclusion provision of ERISA, and the statute now flatly mandates that "[n]o pension plan may exclude from participation (on the basis of age) employees who have attained a specified age." 29 U. S. C. § 1052(a)(2). Sections 9201 and 9202 of OBRA, 100 Stat. 1973­1978, amended ERISA and the ADEA to prohibit age-based cessations of benefit accruals and age-based reductions in benefit accrual rates. See 29 U. S. C. §§ 1054(b)(1)(H)(i), 623(i)(1). In an effort to comply with these new laws, Lockheed ceased its prior practice of age-based exclusion from the Plan, effective December 25, 1988. As of that date, all em- ployees, including Spink, who had previously been ineligible to participate in the Plan due to their age at the time of hiring became members of the Plan. Lockheed made clear, however, that it would not credit those employees for years of service rendered before they became members. When later faced with the need to streamline its opera- tions, Lockheed amended the Plan to provide financial incen- tives for certain employees to retire early. Lockheed estab- lished two programs, both of which offered increased pension benefits to employees who would retire early, payable out of the Plan's surplus assets. Both programs required as a condition of the receipt of benefits that participants release any employment-related claims they might have against Lockheed. Though Spink was eligible for one of the pro- 517US3$66N 02-07-99 19:44:48 PAGES OPINPGT 886 LOCKHEED CORP. v. SPINK Opinion of the Court grams, he declined to participate because he did not wish to waive any ADEA or ERISA claims. He then retired, with- out earning any extra benefits for doing so. Spink brought this suit, in his individual capacity and on behalf of others similarly situated, against Lockheed and sev- eral of its directors and officers. Among other things, the complaint alleged that Lockheed and the members of the board of directors violated ERISA's duty of care and prohib- ited transaction provisions, 29 U. S. C. §§ 1104(a), 1106(a), by amending the Plan to create the retirement programs. Re- latedly, the complaint alleged that the members of Lock- heed's Retirement Committee, who implemented the Plan as amended by the board, violated those same parts of ERISA. The complaint also asserted that the OBRA amendments to ERISA and the ADEA required Lockheed to count Spink's pre-1988 service years toward his accrued pension benefits. For these alleged ERISA violations, Spink sought monetary, declaratory, and injunctive relief pursuant to §§ 502(a)(2) and (3) of ERISA's civil enforcement provisions, 29 U. S. C. §§ 1132(a)(2), (3). Lockheed moved to dismiss the complaint for failure to state a claim, and the District Court granted the motion. The Court of Appeals for the Ninth Circuit reversed in relevant part. 60 F. 3d 616 (1995). The Court of Appeals held that the amendments to the Plan were unlawful under ERISA § 406(a)(1)(D), 29 U. S. C. § 1106(a)(1)(D), which pro- hibits a fiduciary from causing a plan to engage in a trans- action that transfers plan assets to a party in interest or involves the use of plan assets for the benefit of a party in interest. The court reasoned that because the amendments offered increased benefits in exchange for a release of em- ployment claims, they constituted a use of Plan assets to "purchase" a significant benefit for Lockheed. 60 F. 3d, at 624. Though the court found a violation of § 406(a)(1)(D), it decided that there was no need to address Lockheed's status as a fiduciary. Id., at 623, n. 5. In addition, the Court of 517US3$66N 02-07-99 19:44:48 PAGES OPINPGT Cite as: 517 U. S. 882 (1996) 887 Opinion of the Court Appeals agreed with Spink that Lockheed had violated the OBRA amendments by refusing to include Spink's service years prior to 1988 in determining his benefits. In so hold- ing, the court found that the OBRA amendments apply retro- actively. See id., at 620, n. 1. We issued a writ of certio- rari, 516 U. S. 1087 (1996), and now reverse. II Nothing in ERISA requires employers to establish em- ployee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan. Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 91 (1983); Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 511 (1981). ERISA does, however, seek to ensure that em- ployees will not be left emptyhanded once employers have guaranteed them certain benefits. As we said in Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359 (1980), when Congress enacted ERISA it "wanted to . . . mak[e] sure that if a worker has been promised a defined pension benefit upon retirement-and if he has fulfilled whatever conditions are required to obtain a vested benefit- he actually will receive it." Id., at 375. Accordingly, ERISA tries to "make as certain as possible that pension fund assets [will] be adequate" to meet expected benefits payments. Ibid. To increase the chances that employers will be able to honor their benefits commitments-that is, to guard against the possibility of bankrupt pension funds-Congress incorpo- rated several key measures into ERISA. Section 302 of ERISA sets minimum annual funding levels for all covered plans, see 29 U. S. C. §§ 1082(a), 1082(b), and creates tax liens in favor of such plans when those funding levels are not met, see § 1082(f). Sections 404 and 409 of ERISA impose re- spectively a duty of care with respect to the management of existing trust funds, along with liability for breach of that duty, upon plan fiduciaries. See §§ 1104(a), 1109(a). Fi- 517US3$66N 02-07-99 19:44:48 PAGES OPINPGT 888 LOCKHEED CORP. v. SPINK Opinion of the Court nally, § 406 of ERISA prohibits fiduciaries from involving the plan and its assets in certain kinds of business deals. See § 1106. It is this last feature of ERISA that is at issue today. Congress enacted § 406 "to bar categorically a transaction that [is] likely to injure the pension plan." Commissioner v. Keystone Consol. Industries, Inc., 508 U. S. 152, 160 (1993). That section mandates, in relevant part, that "[a] fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect . . . transfer to, or use by or for the benefit of a party in interest, of any assets of the plan." 29 U. S. C. § 1106(a)(1)(D).1 The question here is whether this provision of ERISA prevents an employer from conditioning the receipt of early retirement benefits upon the participants' waiver of employment claims. For the follow- ing reasons, we hold that it does not. III Section 406(a)(1) regulates the conduct of plan fiduciaries, placing certain transactions outside the scope of their lawful authority. When a fiduciary violates the rules set forth in § 406(a)(1), § 409 of ERISA renders him personally liable for any losses incurred by the plan, any ill-gotten profits, and other equitable and remedial relief deemed appropriate by the court. See 29 U. S. C. § 1109(a). But in order to sustain an alleged transgression of § 406(a), a plaintiff must show that a fiduciary caused the plan to engage in the allegedly unlawful transaction.2 Unless a plaintiff can make that 1 Section 408 enumerates specific exceptions to the prohibitions in § 406. See 29 U. S. C. § 1108(b). Lockheed does not argue that any of these exceptions pertain to this case. 2 ERISA § 3(21)(A) provides: "[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discre- tionary control respecting management of such plan or exercises any au- thority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or 517US3$66N 02-07-99 19:44:48 PAGES OPINPGT Cite as: 517 U. S. 882 (1996) 889 Opinion of the Court showing, there can be no violation of § 406(a)(1) to warrant relief under the enforcement provisions. Cf. Peacock v. Thomas, 516 U. S. 349, 353 (1996) ("Section 502(a)(3) `does not, after all, authorize "appropriate equitable relief" at large, but only "appropriate equitable relief" for the purpose of "redress[ing any] violations or . . . enforc[ing] any provi- sions" of ERISA' ") (quoting Mertens v. Hewitt Associates, 508 U. S. 248, 253 (1993)). The Court of Appeals erred by not asking whether fiduciary status existed in this case be- fore it found a violation of § 406(a)(1)(D).3 A We first address the allegation in Spink's complaint that Lockheed and the board of directors breached their fiduciary indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretion- ary authority or discretionary responsibility in the administration of such plan." 29 U. S. C. § 1002(21)(A). 3 Instead of pursuing this inquiry, the Court of Appeals found that Lock- heed was a "party in interest" under § 3(14)(C), and asserted that "a party in interest who benefitted from an impermissible transaction can be held liable under ERISA." 60 F. 3d 616, 623 (CA9 1995). For that same prop- osition, several Courts of Appeals have relied on statements in Mertens v. Hewitt Associates, 508 U. S. 248 (1993), that "ERISA contains various provisions that can be read as imposing obligations upon nonfiduciaries," id., at 253­254; see also id., at 254, n. 4 (citing § 406(a)), and that "[p]rofes- sional service providers . . . must disgorge assets and profits obtained through participation as parties-in-interest in transactions prohibited by § 406," id., at 262. See, e. g., Reich v. Stangl, 73 F. 3d 1027, 1031­1032 (CA10 1996), cert. pending, No. 95­1631; Landwehr v. DuPree, 72 F. 3d 726, 733­734 (CA9 1995); Reich v. Compton, 57 F. 3d 270, 285 (CA3 1995). Insofar as they apply to § 406(a), these statements in Mertens (which were in any event dicta, since § 406(a) was not at issue) suggest liability for parties in interest only when a violation of § 406(a) has been established- which, as we have discussed, requires a showing that a fiduciary caused the plan to engage in the transaction in question. The Court of Appeals thus was not necessarily wrong in saying that "a party in interest who benefitted from an impermissible transaction can be held liable under ERISA" (emphasis added); but the only transactions rendered impermissi- ble by § 406(a) are transactions caused by fiduciaries. 517US3$66N 02-07-99 19:44:48 PAGES OPINPGT 890 LOCKHEED CORP. v. SPINK Opinion of the Court duties when they adopted the amendments establishing the early retirement programs. Plan sponsors who alter the terms of a plan do not fall into the category of fiduciaries. As we said with respect to the amendment of welfare benefit plans in Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73 (1995), "[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans." Id., at 78 (citing Adams v. Avondale Industries, Inc., 905 F. 2d 943, 947 (CA6 1990)). When employers undertake those actions, they do not act as fiduciaries, 514 U. S., at 78, but are analogous to the settlors of a trust, see Johnson v. Georgia-Pacific Corp., 19 F. 3d 1184, 1188 (CA7 1994). This rule is rooted in the text of ERISA's definition of fiduciary. See 29 U. S. C. § 1002(21)(A) (quoted n. 2, supra). As the Second Circuit has observed, "only when fulfilling cer- tain defined functions, including the exercise of discretionary authority or control over plan management or administra- tion," does a person become a fiduciary under § 3(21)(A). Siskind v. Sperry Retirement Program, Unisys, 47 F. 3d 498, 505 (1995). "[B]ecause [the] defined functions [in the defini- tion of fiduciary] do not include plan design, an employer may decide to amend an employee benefit plan without being sub- ject to fiduciary review." Ibid. We recently recognized this very point, noting that "it may be true that amending or terminating a plan . . . cannot be an act of plan `manage- ment' or `administration.' " Varity Corp. v. Howe, 516 U. S. 489, 505 (1996). As noted above, we in fact said as much in Curtiss-Wright, see 514 U. S., at 78, at least with respect to welfare benefit plans. We see no reason why the rule of Curtiss-Wright should not be extended to pension benefit plans. Indeed, there are compelling reasons to apply the same rule to cases involv- ing both kinds of plans, as most Courts of Appeals have 517US3$66N 02-07-99 19:44:49 PAGES OPINPGT Cite as: 517 U. S. 882 (1996) 891 Opinion of the Court done.4 The definition of fiduciary makes no distinction be- tween persons exercising authority over welfare benefit plans and those exercising authority over pension plans. It speaks simply of a "fiduciary with respect to a plan," 29 U. S. C. § 1002(21)(A), and of "management" and "admini- stration" of "such plan," ibid. And ERISA defines a "plan" as being either a welfare or pension plan, or both. See § 1002(3). Likewise, the fiduciary duty provisions of ERISA are phrased in general terms and apply with equal force to welfare and pension plans. See, e. g., § 1104(a) (specifying duties of a "fiduciary . . . with respect to a plan"). See also Shaw v. Delta Air Lines, Inc., 463 U. S., at 91 (ERISA "sets various uniform standards, including rules concerning . . . fiduciary responsibility, for both pension and welfare plans"). Given ERISA's definition of fiduciary and the applicability of the duties that attend that status, we think that the rules regarding fiduciary capacity-including the settlor-fiduciary distinction-should apply to pension and welfare plans alike. Lockheed acted not as a fiduciary but as a settlor when it amended the terms of the Plan to include the retirement programs. Thus, § 406(a)'s requirement of fiduciary status is not met. While other portions of ERISA govern plan amendments, see, e. g., 29 U. S. C. § 1054(g) (amendment gen- erally may not decrease accrued benefits); § 1085b (if adop- tion of an amendment results in underfunding of a defined benefit plan, the sponsor must post security for the amount of the deficiency), the act of amending a pension plan does not trigger ERISA's fiduciary provisions. 4 See, e. g., Siskind v. Sperry Retirement Program, Unisys, 47 F. 3d 498, 505 (CA2 1995); Averhart v. US WEST Management Pension Plan, 46 F. 3d 1480, 1488 (CA10 1994); Fletcher v. Kroger Co., 942 F. 2d 1137, 1139­ 1140 (CA7 1991); Hozier v. Midwest Fasteners, Inc., 908 F. 2d 1155, 1160­ 1162 (CA3 1990) (listing cases); Sutton v. Weirton Steel Div. of Nat. Steel Corp., 724 F. 2d 406, 411 (CA4 1983), cert. denied, 467 U. S. 1205 (1984). 517US3$66N 02-07-99 19:44:49 PAGES OPINPGT 892 LOCKHEED CORP. v. SPINK Opinion of the Court B Spink also alleged that the members of Lockheed's Retire- ment Committee who implemented the amended Plan vio- lated § 406(a)(1)(D). As with the question whether Lock- heed and the board members can be held liable under ERISA's fiduciary rules, the Court of Appeals erred in hold- ing that the Retirement Committee members violated the prohibited transaction section of ERISA without making the requisite finding of fiduciary status. It is not necessary for us to decide the question whether the Retirement Commit- tee members acted as fiduciaries when they paid out benefits according to the terms of the amended Plan, however, be- cause we do not think that they engaged in any conduct pro- hibited by § 406(a)(1)(D). The "transaction" in which fiduciaries may not cause a plan to engage is one that "constitutes a direct or indirect . . . transfer to, or use by or for the benefit of a party in interest, of any assets of the plan." 29 U. S. C. § 1106(a)(1)(D). Spink reads § 406(a)(1)(D) to apply in cases where the benefit received by the party in interest-in this case, the employer-is not merely a "natural inciden[t] of the administration of pension plans." Brief for Respondent 10. Lockheed, on the other hand, maintains that a plan adminis- trator's payment of benefits to plan participants and benefi- ciaries pursuant to the terms of an otherwise lawful plan 5 is wholly outside the scope of § 406(a)(1)(D). See Reply Brief for Petitioners 10. We agree with Lockheed. Section 406(a)(1)(D) does not in direct terms include the payment of benefits by a plan administrator. And the sur- rounding provisions suggest that the payment of benefits is 5 As Lockheed notes, see Brief for Petitioners 13; Reply Brief for Peti- tioners 7, n. 4, there is no claim in this case that the amendments resulted in any violation of the participation, funding, or vesting requirements of ERISA. See 29 U. S. C. §§ 1051­1061 (participation and vesting); §§ 1081­ 1086 (funding). 517US3$66N 02-07-99 19:44:49 PAGES OPINPGT Cite as: 517 U. S. 882 (1996) 893 Opinion of the Court in fact not a "transaction" in the sense that Congress used that term in § 406(a). Section 406(a) prohibits fiduciaries from engaging the plan in the "sale," "exchange," or "leas- ing" of property, 29 U. S. C. § 1106(a)(1)(A); the "lending of money" or "extension of credit," § 1106(a)(1)(B); the "furnish- ing of goods, services, or facilities," § 1106(a)(1)(C); and the "acquisition . . . of any employer security or employer real property," § 1106(a)(1)(E), with a party in interest. See also § 1108(b) (listing similar types of "transactions"). These are commercial bargains that present a special risk of plan un- derfunding because they are struck with plan insiders, pre- sumably not at arm's length. See Commissioner v. Key- stone Consol. Industries, Inc., 508 U. S., at 160. What the "transactions" identified in § 406(a) thus have in common is that they generally involve uses of plan assets that are po- tentially harmful to the plan. Cf. id., at 160­161 (reasoning that a transfer of unencumbered property to the plan by the employer for the purpose of applying it toward the employ- er's funding obligation fell within § 406(a)(1)'s companion tax provision, 26 U. S. C. § 4975, because it could "jeopardize the ability of the plan to pay promised benefits"). The payment of benefits conditioned on performance by plan participants cannot reasonably be said to share that characteristic. According to Spink and the Court of Appeals, however, Lockheed's early retirement programs were prohibited transactions within the meaning of § 406(a)(1)(D) because the required release of employment-related claims by partici- pants created a "significant benefit" for Lockheed. 60 F. 3d, at 624. Spink concedes, however, that among the "inciden- tal" and thus legitimate benefits that a plan sponsor may receive from the operation of a pension plan are attracting and retaining employees, paying deferred compensation, set- tling or avoiding strikes, providing increased compensation without increasing wages, increasing employee turnover, and reducing the likelihood of lawsuits by encouraging employees 517US3$66N 02-07-99 19:44:49 PAGES OPINPGT 894 LOCKHEED CORP. v. SPINK Opinion of the Court who would otherwise have been laid off to depart voluntarily. Brief for Respondent 11. We do not see how obtaining waivers of employment- related claims can meaningfully be distinguished from these admittedly permissible objectives. Each involves, at bot- tom, a quid pro quo between the plan sponsor and the partic- ipant: that is, the employer promises to pay increased bene- fits in exchange for the performance of some condition by the employee. By Spink's admission, the employer can ask the employee to continue to work for the employer, to cross a picket line, or to retire early. The execution of a release of claims against the employer is functionally no different; like these other conditions, it is an act that the employee per- forms for the employer in return for benefits. Certainly, there is no basis in § 406(a)(1)(D) for distinguishing a valid from an invalid quid pro quo. Section 406(a)(1)(D) simply does not address what an employer can and cannot ask an employee to do in return for benefits. See generally Alessi v. Raybestos-Manhattan, Inc., 451 U. S., at 511 (ERISA "leaves th[e] question" of the content of benefits "to the private parties creating the plan. . . . [T]he private par- ties, not the Government, control the level of benefits").6 Furthermore, if an employer can avoid litigation that might result from laying off an employee by enticing him to re- tire early, as Spink concedes, it stands to reason that the employer can also protect itself from suits arising out of 6 Indeed, federal law expressly approves the use of early retirement incentives conditioned upon the release of claims. The Older Workers Benefit Protection Act, Pub. L. 101­433, 104 Stat. 983 (1990), establishes requirements for the enforceability of employee waivers of ADEA claims made in exchange for early retirement benefits. See 29 U. S. C. § 626(f). Of course, the enforceability of a particular waiver under this and other applicable laws, including state law, is a separate issue from the question whether such an arrangement violates ERISA's prohibited transaction rules. But absent clearer indication than what we have in § 406(a)(1)(D), we would be reluctant to infer that ERISA bars conduct affirmatively sanctioned by other federal statutes. 517US3$66N 02-07-99 19:44:49 PAGES OPINPGT Cite as: 517 U. S. 882 (1996) 895 Opinion of the Court that retirement by asking the employee to release any employment-related claims he may have.7 In short, whatever the precise boundaries of the prohi- bition in § 406(a)(1)(D), there is one use of plan assets that it cannot logically encompass: a quid pro quo between the employer and plan participants in which the plan pays out benefits to the participants pursuant to its terms. When § 406(a)(1)(D) is read in the context of the other prohibited transaction provisions, it becomes clear that the payment of benefits in exchange for the performance of some condition by the employee is not a "transaction" within the meaning of § 406(a)(1). A standard that allows some benefits agree- ments but not others, as Spink suggests, lacks a basis in § 406(a)(1)(D); it also would provide little guidance to lower courts and those who must comply with ERISA. We thus hold that the payment of benefits pursuant to an amended plan, regardless of what the plan requires of the employee in return for those benefits, does not constitute a prohibited transaction.8 7 Spink's amicus the United States suggests that § 406(a)(1)(D) is not violated so long as the employer provides benefits as compensation for the employee's labor, not for other things such as a release of claims. See Brief for United States as Amicus Curiae 15­16. But the Government contradicts its own rule with the examples it gives of lawful plans. For instance, the Government recognizes that "[a]n employer may provide in- creased pension benefits as an incentive for early retirement." Id., at 20. While retirement benefits themselves may be defined as deferred wages, an increase in retirement benefits as part of an early retirement plan does not compensate the employee so much for services rendered as for the distinct act of leaving the company sooner than planned. The standard offered by the Government is thus of little help in identifying transactions prohibited by § 406(a)(1)(D). 8 If the benefits payment were merely a sham transaction, meant to dis- guise an otherwise unlawful transfer of assets to a party in interest, or involved a kickback scheme, that might present a different question from the one before us. Spink does not suggest that Lockheed's payment was a cover for an illegal scheme, only that payment of the benefits conditioned on the release was itself violative of § 406(a)(1)(D). 517US3$66N 02-07-99 19:44:49 PAGES OPINPGT 896 LOCKHEED CORP. v. SPINK Opinion of the Court IV Finally, we address whether §§ 9201 and 9202(a) of OBRA, which amended respectively the ADEA and ERISA to pro- hibit age-based benefit accrual rules, apply retroactively.9 Two Terms ago, we set forth the proper approach for deter- mining the retroactive effect of a statute in Landgraf v. USI Film Products, 511 U. S. 244 (1994). We stated that "[w]hen a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Con- gress has expressly prescribed the statute's proper reach." Id., at 280. Thus, we must determine whether Congress has plainly delineated the temporal scope of the OBRA amend- ments to ERISA and the ADEA. Section 9204(a)(1) of OBRA, 100 Stat. 1979, expressly pro- vides that "[t]he amendments made by sections 9201 and 9202 shall apply only with respect to plan years beginning on or after January 1, 1988, and only to employees who have 1 hour of service in any plan year to which such amendments apply." 29 U. S. C. § 623 note. This language compels the conclusion that the amendments are prospective. For plan years that began on or after January 1, 1988, age-based ac- crual rules are unlawful under the amendments; further, only employees who have one hour of service in such a plan year are entitled to the protection of the amendments. But for plan years prior to the effective date, employers cannot be held liable for using age-based accrual rules. Where, as here, the temporal effect of a statute is manifest on its face, "there is no need to resort to judicial default rules," Land- 9 Section 9203(a)(1) of OBRA, amending ERISA to prevent the exclusion of employees of a certain age from plan participation, applies "only with respect to plan years beginning on or after January 1, 1988, and only with respect to service performed on or after such date." OBRA § 9204(b), 100 Stat. 1980. The Court of Appeals acknowledged that Lockheed fully complied with that amendment by admitting Spink as a member of the Plan as of December 25, 1988, the first day of Lockheed's 1988 plan year. 517US3$66N 02-07-99 19:44:49 PAGES OPINPGT Cite as: 517 U. S. 882 (1996) 897 Opinion of the Court graf v. USI Film Products, supra, at 280, and inquiry is at an end. Notwithstanding the clarity of § 9204(a)(1), the Court of Appeals believed that the text of §§ 9201 and 9202(a) require retroactive application of the benefit accrual rules. To deny an employee credit for service years during which he was excluded from the plan based on age, even though that exclu- sion was lawful at the time, the Court of Appeals reasoned, is to reduce the rate of benefits accrual for that employee.10 60 F. 3d, at 620. When Congress includes a provision that specifically addresses the temporal effect of a statute, that provision trumps any general inferences that might be drawn from the substantive provisions of the statute. See generally Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992); Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 228­229 (1957). Even if it were proper to disregard the express time limitations in § 9204(a)(1) in favor of more general language, §§ 9201 and 9202(a) cannot bear the weight of the Court of Appeals' construction. A reduction in total benefits due is not the same thing as a reduction in the rate of benefit accrual; the former is the final outcome of the calculation, whereas the latter is one of the factors in the equation. * * * 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. 10 See 29 U. S. C. § 1054(b)(1)(H)(i) (OBRA § 9202(a)) (defined benefit plan violates ERISA's benefit accrual requirements "if, under the plan, an employee's benefit accrual is ceased, or the rate of an employee's benefit accrual is reduced, because of the attainment of any age"); § 623(i)(1)(A) (OBRA § 9201) (prohibiting employers from establishing or maintaining a defined benefit plan that "requires or permits . . . the cessation of an employee's benefit accrual, or the reduction of the rate of an employee's benefit accrual"). 517US3$66Q 02-07-99 19:44:49 PAGES OPINPGT 898 LOCKHEED CORP. v. SPINK Opinion of Breyer, J. Justice Breyer, with whom Justice Souter joins, concurring in part and dissenting in part. I join the Court's opinion except for its conclusion in Part III­B that "the payment of benefits pursuant to an amended plan, regardless of what the plan requires of the employee in return for those benefits, does not constitute a prohibited transaction." Ante, at 895. The legal question addressed in Part III­B is a difficult one, which we need not here an- swer and which would benefit from further development in the lower courts, where interested parties who are experi- enced in these highly technical, important matters could present their views. Accordingly, I would follow the sug- gestion of the Solicitor General that the Court not reach the issue in this case. 517US3$67Z 02-07-99 19:56:40 PAGES OPINPGT OCTOBER TERM, 1995 899 Syllabus SHAW et al. v. HUNT, GOVERNOR OF NORTH CAROLINA, et al. appeal from the district court for the eastern district of north carolina No. 94­923. Argued December 5, 1995-Decided June 13, 1996* Earlier in this suit, in Shaw v. Reno, 509 U. S. 630, this Court held that appellants, whose complaint alleged that North Carolina had deliber- ately segregated voters by race when it created two bizarre-looking majority-black congressional districts, Districts 1 and 12, had stated a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. The Court remanded for further consideration by the District Court, which held that, although the North Carolina redis- tricting plan did classify voters by race, the classification survived strict scrutiny, and therefore was constitutional, because it was nar- rowly tailored to further the State's compelling interests in complying with §§ 2 and 5 of the Voting Rights Act of 1965. Held:1. Only the two appellants who live in District 12 have standing to continue this lawsuit, and only with respect to that district. The re- maining appellants, who do not reside in either of the challenged dis- tricts and have not provided specific evidence that they personally were assigned to their voting districts on the basis of race, lack standing. See United States v. Hays, 515 U. S. 737. P. 904. 2. The North Carolina plan violates the Equal Protection Clause be- cause the State's reapportionment scheme is not narrowly tailored to serve a compelling state interest. Pp. 904­918. (a) Strict scrutiny applies when race is the "predominant" con- sideration in drawing district lines such that "the legislature subordi- nates race-neutral districting principles . . . to racial considerations." Miller v. Johnson, 515 U. S. 900, 916. The District Court's finding that the North Carolina General Assembly "deliberately drew" Dis- trict 12 so that it would have an effective voting majority of black citizens, when read in the light of the evidence as to the district's shape and demographics and the legislature's objective, comports with the Miller standard. In order to justify its redistricting plan, therefore, the State must show not only that the plan was in pursuit of a compel- *Together with No. 94­924, Pope et al. v. Hunt, Governor of North Carolina, et al., also on appeal from the same court. 517US3$67Z 02-07-99 19:56:40 PAGES OPINPGT 900 SHAW v. HUNT Syllabus ling state interest, but also that it was narrowly tailored to achieve that interest. Id., at 920. Pp. 904­908. (b) None of the three separate "compelling interests" to which appellees point suffices to sustain District 12. First, the District Court found that the State's claimed interest in eradicating the effects of past discrimination did not actually precipitate the use of race in the redis- tricting plan, and the record does not establish that that finding was clearly erroneous. Second, the asserted interest in complying with § 5 of the Voting Rights Act did not justify redistricting here, since creating an additional majority-black district, as urged by the Justice Depart- ment before it granted preclearance, was not required under a correct reading of § 5. See Miller, 515 U. S., at 921. This Court again rejects the Department's expansive reading of § 5 and of its own authority thereunder as requiring States to maximize the number of majority- minority districts wherever possible. See, e. g., id., at 925. Third, Dis- trict 12, as drawn, is not a remedy narrowly tailored to the State's pro- fessed interest in avoiding liability under § 2 of the Act, which, inter alia, prohibits dilution of the voting strength of members of a minority group. District 12 could not remedy any potential § 2 violation, since the minority group must be shown to be "geographically compact" to establish § 2 liability, see, e. g., Thornburg v. Gingles, 478 U. S. 30, 50, and it cannot reasonably be suggested that District 12 contains a "geo- graphically compact" population of any race. Appellees are singularly unpersuasive when they argue that a majority-minority district may be drawn anywhere if there is a strong basis in evidence for concluding that a § 2 violation exists somewhere in the State. A district so drawn could not avoid § 2 liability, which targets vote-dilution injury to indi- viduals in a particular area, not to the minority as a group. Just as in Miller, this Court does not here reach the question whether compliance with the Act, on its own, can be a compelling state interest under the proper circumstances. Pp. 908­918. 861 F. Supp. 408, reversed. Rehnquist, C. J., delivered the opinion of the Court, in which O'Con- nor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined as to Parts II, III, IV, and V, post, p. 918. Souter, J., filed a dissenting statement, in which Ginsburg and Breyer, JJ., joined, post, p. 951. Robinson O. Everett argued the cause and filed briefs for appellants in No. 94­923. 517US3$67Z 02-07-99 19:56:40 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 901 Opinion of the Court Thomas A. Farr argued the cause and filed briefs for appellants in No. 94­924. With him on the briefs were Thomas F. Ellis, James C. Dever III, and Craig D. Mills. Edwin M. Speas, Jr., Senior Deputy Attorney General of North Carolina, argued the cause for appellees Hunt et al. in both cases. With him on the brief for state appellees were Michael F. Easley, Attorney General, and Tiare B. Smiley, Special Deputy Attorney General. Julius L. Chambers ar- gued the cause for appellees Gingles et al. in both cases. With him on the brief were Anita S. Hodgkiss, Adam Stein, James E. Ferguson II, Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, and Jacqueline A. Berrien. Deputy Solicitor General Bender argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Beth S. Brinkmann, Steven H. Rosenbaum, and Miriam R. Eisenstein. Chief Justice Rehnquist delivered the opinion of the Court. This suit is here for a second time. In Shaw v. Reno, 509 U. S. 630 (1993) (Shaw I), we held that plaintiffs whose com- plaint alleged that the deliberate segregation of voters into separate and bizarre-looking districts on the basis of race stated a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. We remanded the case for further consideration by the District Court. That court held that the North Carolina redistricting plan did classify Anthony T. Caso and Deborah J. La Fetra filed a brief for the Pacific Legal Foundation urging reversal. Briefs of amicus curiae urging affirmance were filed for the American Civil Liberties Union et al. by Laughlin McDonald, Neil Bradley, Steven R. Shapiro, Paul C. Saunders, Herbert J. Hansell, Barbara R. Arnwine, Thomas J. Henderson, and Brenda Wright; and for the North Carolina Legislative Black Caucus et al. by Pamela S. Karlan and Eben Moglen. A. Leon Higginbotham, Jr., filed a brief for the Congressional Black Caucus as amicus curiae. 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT 902 SHAW v. HUNT Opinion of the Court voters by race, but that the classification survived strict scrutiny and therefore did not offend the Constitution. We now hold that the North Carolina plan does violate the Equal Protection Clause because the State's reapportionment scheme is not narrowly tailored to serve a compelling state interest. The facts are set out in detail in our prior opinion, and we shall only summarize them here. After the 1990 census, North Carolina's congressional delegation increased from 11 to 12 members. The State General Assembly adopted a reapportionment plan, Chapter 601, that included one majority-black district, District 1, located in the northeast- ern region of the State. 1991 N. C. Sess. Laws, ch. 601. The legislature then submitted the plan to the Attorney Gen- eral of the United States for preclearance under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c (1988 ed.). The Assistant Attorney General for Civil Rights, acting on the Attorney General's behalf, ob- jected to the proposed plan because it failed "to give effect to black and Native American voting strength" in "the south-central to southeastern part of the state" and opined that the State's reasons for not creating a second majority- minority district appeared "to be pretextual." App. 151­ 153. Duly chastened, the legislature revised its districting scheme to include a second majority-black district. 1991 N. C. Extra Sess. Laws, ch. 7. The new plan, Chapter 7, located the minority district, District 12, in the north-central or Piedmont region, not in the south-central or southeastern region identified in the Justice Department's objection letter. The Attorney General nonetheless precleared the revised plan. By anyone's measure, the boundary lines of Districts 1 and 12 are unconventional. A map portrays the districts' devi- ance far better than words, see the Appendix to the opinion of the Court in Shaw I, supra, but our prior opinion de- scribes them as follows: 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 903 Opinion of the Court "The first of the two majority-black districts . . . is somewhat hook shaped. Centered in the northeast portion of the State, it moves southward until it tapers to a narrow band; then, with finger-like extensions, it reaches far into the southern-most part of the State near the South Carolina border. . . . "The second majority-black district, District 12, is even more unusually shaped. It is approximately 160 miles long and, for much of its length, no wider than the [Interstate]-85 corridor. It winds in snakelike fashion through tobacco country, financial centers, and manufac- turing areas `until it gobbles in enough enclaves of black neighborhoods.' " Shaw I, supra, at 635­636 (citation omitted). Five North Carolinians commenced the present action in the United States District Court for the Eastern District of North Carolina against various state officials.1 Following our reversal of the District Court's dismissal of their com- plaint in Shaw I, the District Court allowed a number of individuals to intervene, 11 on behalf of the plaintiffs and 22 for the defendants. After a 6-day trial, the District Court unanimously found "that the Plan's lines were deliberately drawn to produce one or more districts of a certain racial composition." 861 F. Supp. 408, 417, 473­474 (1994). A ma- jority of the court held that the plan was constitutional, nonetheless, because it was narrowly tailored to further the State's compelling interests in complying with §§ 2 and 5 of the Voting Rights Act, 42 U. S. C. §§ 1973, 1973c. 861 F. Supp., at 474. The dissenting judge disagreed with that portion of the judgment. We noted probable jurisdiction. 515 U. S. 1172 (1995). 1 The complaint also named the Attorney General of the United States and the Assistant Attorney General for the Civil Rights Division as defendants. The District Court granted the federal officials' motion to dismiss, Shaw v. Barr, 808 F. Supp. 461 (EDNC 1992). 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT 904 SHAW v. HUNT Opinion of the Court As a preliminary matter, appellees challenge appellants' standing to continue this lawsuit. In United States v. Hays, 515 U. S. 737 (1995), we recognized that a plaintiff who resides in a district which is the subject of a racial- gerrymander claim has standing to challenge the legislation which created that district, but that a plaintiff from outside that district lacks standing absent specific evidence that he personally has been subjected to a racial classification. Two appellants, Ruth Shaw and Melvin Shimm, live in District 12 and thus have standing to challenge that part of Chapter 7 which defines District 12. See Miller v. Johnson, 515 U. S. 900, 909 (1995). The remaining appellants do not reside in District 1, however, and they have not provided specific evidence that they personally were assigned to their voting districts on the basis of race. Therefore, we conclude that only Shaw and Shimm have standing and only with respect to District 12.2 We explained in Miller v. Johnson that a racially gerry- mandered districting scheme, like all laws that classify citi- zens on the basis of race, is constitutionally suspect. Id., at 904­905; see also Shaw I, 509 U. S., at 657; Adarand Con- structors, Inc. v. Pen a, 515 U. S. 200 (1995). This is true whether or not the reason for the racial classification is be- 2 Justice Stevens would dismiss the complaint for a lack of standing. Post, at 921­923. Here, as in other places in his dissent, Justice Ste- vens' disagreement is more with the Court's prior decisions in Shaw I, 509 U. S. 630 (1993), United States v. Hays, 515 U. S. 737 (1995), and Miller v. Johnson, 515 U. S. 900 (1995), than with this decision. Justice Ste- vens challenged the Court's standing analysis and its finding of cognizable injury in both Hays, supra, at 751 (Stevens, J., concurring in judgment), and Miller, supra, at 929­931 (Stevens, J., dissenting), and both Justice White and Justice Souter advanced many of the same arguments in Shaw I. See Shaw I, 509 U. S., at 659­674 (White, J., dissenting); id., at 680­687, and n. 9 (Souter, J., dissenting). Their position has been re- peatedly rejected by the Court. See id., at 644­652; Miller, supra, at 909; and Hays, supra, at 744­745. 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 905 Opinion of the Court nign or the purpose remedial. Shaw I, supra, at 642­643, 653; Adarand, supra, at 228­229. Applying traditional equal protection principles in the voting-rights context is "a most delicate task," Miller, supra, at 905, however, because a legislature may be conscious of the voters' races without using race as a basis for assigning voters to districts. Shaw I, supra, at 645­646; Miller, 515 U. S., at 916. The constitu- tional wrong occurs when race becomes the "dominant and controlling" consideration. Id., at 911, 915­916. The plaintiff bears the burden of proving the race-based motive and may do so either through "circumstantial evi- dence of a district's shape and demographics" or through "more direct evidence going to legislative purpose." Id., at 916. After a detailed account of the process that led to en- actment of the challenged plan, the District Court found that the General Assembly of North Carolina "deliberately drew" District 12 so that it would have an effective voting majority of black citizens. 861 F. Supp., at 473. Appellees urge upon us their view that this finding is not phrased in the same language that we used in our opinion in Miller v. Johnson, supra, where we said that a plaintiff must show "that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district." Id., at 916. The District Court, of course, did not have the benefit of our opinion in Miller at the time it wrote its opinion. While it would have been preferable for the court to have analyzed the case in terms of the standard laid down in Miller, that was not possible. This circumstance has no consequence here because we think that the District Court's findings, read in the light of the evidence that it had before it, comport with the Miller standard. First, the District Court had evidence of the district's shape and demographics. The court observed "the obvious fact" that the district's shape is "highly irregular and geo- 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT 906 SHAW v. HUNT Opinion of the Court graphically non-compact by any objective standard that can be conceived." 861 F. Supp., at 469. In fact, the serpentine district has been dubbed the least geographically compact district in the Nation. App. 332. The District Court also had direct evidence of the legisla- ture's objective. The State's submission for preclearance expressly acknowledged that Chapter 7's "overriding pur- pose was to comply with the dictates of the Attorney Gener- al's December 18, 1991 letter and to create two congressional districts with effective black voting majorities." App. 162 (emphasis added). This admission was confirmed by Gerry Cohen, the plan's principal draftsman, who testified that cre- ating two majority-black districts was the "principal reason" for Districts 1 and 12. Id., at 675; Tr. 514. Indeed, ap- pellees in their first appearance before the District Court "formally concede[d] that the state legislature deliberately created the two districts in a way to assure black-voter majorities," Shaw v. Barr, 808 F. Supp. 461, 470 (EDNC 1992), and that concession again was credited by the District Court on remand, 861 F. Supp., at 473­474. See also Shaw I, supra, at 666 (White, J., dissenting) ("The State has made no mystery of its intent, which was to respond to the Attor- ney General's objections by improving the minority group's prospects of electing a candidate of its choice" (citation omit- ted)). Here, as in Miller, "we fail to see how the District Court could have reached any conclusion other than that race was the predominant factor in drawing [the challenged dis- trict]." Miller, supra, at 918. In his dissent, Justice Stevens argues that strict scru- tiny does not apply where a State "respects" or "com- pl[ies] with traditional districting principles." Post, at 931­ 932 ("[R]ace-based districting which respects traditional districting principles does not give rise to constitutional sus- picion"), post, at 932 ("Miller demonstrates that although States may avoid strict scrutiny by complying with tradi- tional districting principles . . . "). That, however, is not the 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 907 Opinion of the Court standard announced and applied in Miller,3 where we held that strict scrutiny applies when race is the "predominant" consideration in drawing the district lines such that "the legislature subordinate[s] traditional race-neutral districting principles . . . to racial considerations." Miller, supra, at 916. (Justice Stevens articulates the correct standard in his dissent, post, at 930, but he fails to properly apply it.) The Miller standard is quite different from the one that Jus- tice Stevens advances, as an examination of the dissent's reasoning demonstrates. The dissent explains that "two race-neutral, traditional districting criteria" were at work in determining the shape and placement of District 12, and from this suggests that strict scrutiny should not apply. Post, at 936­939. We do not quarrel with the dissent's claims that, in shaping District 12, the State effectuated its interest in creating one rural and one urban district, and that partisan politicking was actively at work in the districting process. That the legislature addressed these interests does not in any way refute the fact that race was the legislature's predominant consideration. Race was the criterion that, in the State's view, could not be compromised; respecting com- munities of interest and protecting Democratic incumbents came into play only after the race-based decision had been made. Racial classifications are antithetical to the Fourteenth Amendment, whose "central purpose" was "to eliminate racial discrimination emanating from official sources in the States." McLaughlin v. Florida, 379 U. S. 184, 192 (1964); 3 Justice Stevens in dissent incorrectly reads Miller as demonstrating that "although States may avoid strict scrutiny by complying with tradi- tional districting principles, they may not do so by proffering pretextual, race-neutral explanations." Post, at 932. Miller plainly states that al- though "compliance with `traditional districting principles such as com- pactness, contiguity, and respect for political subdivisions' may well suffice to refute a claim of racial gerrymandering," a State cannot make such a refutation where "those factors were subordinated to racial objectives." Miller, 515 U. S., at 919 (citation omitted) (emphasis added). 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT 908 SHAW v. HUNT Opinion of the Court Richmond v. J. A. Croson Co., 488 U. S. 469, 491 (1989) (opin- ion of O'Connor, J.) ("[T]he Framers of the Fourteenth Amendment . . . desired to place clear limits on the States' use of race as a criterion for legislative action, and to have the federal courts enforce those limitations"). While ap- preciating that a racial classification causes "fundamental injury" to the "individual rights of a person," Goodman v. Lukens Steel Co., 482 U. S. 656, 661 (1987), we have rec- ognized that, under certain circumstances, drawing racial distinctions is permissible where a governmental body is pursuing a "compelling state interest." A State, however, is constrained in how it may pursue that end: "[T]he means chosen to accomplish the State's asserted purpose must be specifically and narrowly framed to accomplish that pur- pose." Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280 (1986) (opinion of Powell, J.). North Carolina, therefore, must show not only that its redistricting plan was in pursuit of a compelling state interest, but also that "its districting legislation is narrowly tailored to achieve [that] compelling interest." Miller, 515 U. S., at 920. Appellees point to three separate compelling interests to sustain District 12: to eradicate the effects of past and pres- ent discrimination; to comply with § 5 of the Voting Rights Act; and to comply with § 2 of that Act. We address each in turn.4 4 Justice Stevens in dissent discerns three reasons that he believes "may have motivated" the legislators to favor the creation of the two mi- nority districts and that he believes together amount to a compelling state interest. Post, at 941. As we explain below, a racial classification cannot withstand strict scrutiny based upon speculation about what "may have motivated" the legislature. To be a compelling interest, the State must show that the alleged objective was the legislature's "actual purpose" for the discriminatory classification, see Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 730, and n. 16 (1982), and the legislature must have had a strong basis in evidence to support that justification before it im- plements the classification. See infra, at 910. Even if the proper factual basis existed, we believe that the three reasons Justice Stevens prof- 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 909 Opinion of the Court A State's interest in remedying the effects of past or pres- ent racial discrimination may in the proper case justify a government's use of racial distinctions. Croson, 488 U. S., at 498­506. For that interest to rise to the level of a com- pelling state interest, it must satisfy two conditions. First, the discrimination must be " `identified discrimination.' " Id., at 499, 500, 505, 507, 509. "While the States and their subdivisions may take remedial action when they possess evidence" of past or present discrimination, "they must iden- tify that discrimination, public or private, with some speci- ficity before they may use race-conscious relief." Id., at 504. A generalized assertion of past discrimination in a particular industry or region is not adequate because it "provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy." Id., at 498 (opinion of O'Connor, J.). Accordingly, an effort to alleviate the fers, separately or combined, would not amount to a compelling interest. First, the dissent seems to acknowledge that its initial reason-the "sorry history of race relations in North Carolina," post, at 941-did not itself drive the decision to create the minority districts, presumably for the rea- sons we discuss infra, at 910. The dissent contends next that an "accept- able reason for creating a second majority-minority district" was the "State's interest in avoiding the litigation that would have been necessary to overcome the Attorney General's objection" under § 5. Post, at 942. If this were true, however, Miller v. Johnson would have been wrongly decided because there the Court rejected the contention that complying with the Justice Department's preclearance objection could be a compel- ling interest. Miller, supra, at 921­922. It necessarily follows that avoiding the litigation required to overcome the Department's objection could not be a compelling interest. The dissent's final reason-"the inter- est in avoiding the expense and unpleasantness of [§ 2] litigation" "regard- less of the possible outcome of [that] litigation," post, at 943-sweeps too broadly. We assume, arguendo, that a State may have a compelling inter- est in complying with the properly interpreted Voting Rights Act. Infra, at 915. But a State must also have a "strong basis in evidence," see Shaw I, 509 U. S., at 656 (quoting Richmond v. J. A. Croson Co., 488 U. S. 469, 500 (1989)), for believing that it is violating the Act. It has no such interest in avoiding meritless lawsuits. 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT 910 SHAW v. HUNT Opinion of the Court effects of societal discrimination is not a compelling interest. Wygant, supra, at 274­275, 276, 288.5 Second, the insti- tution that makes the racial distinction must have had a "strong basis in evidence" to conclude that remedial action was necessary, "before it embarks on an affirmative-action program," 476 U. S., at 277 (plurality opinion) (emphasis added). In this suit, the District Court found that an interest in ameliorating past discrimination did not actually precipitate the use of race in the redistricting plan. While some leg- islators invoked the State's history of discrimination as an argument for creating a second majority-black district, the court found that these members did not have enough voting power to have caused the creation of the second district on that basis alone. 861 F. Supp., at 471. Appellees, to support their claim that the plan was drawn to remedy past discrimination, rely on passages from two reports prepared for this litigation by a historian and a social scientist. Brief for Appellees Gingles et al. 40­44, citing H. Watson, Race and Politics in North Carolina, 1865­1994, App. 610­624 (excerpts), and J. Kousser, After 120 Years: Redistricting and Racial Discrimination in North Carolina, id., at 602­609 (excerpts). Obviously these reports, both dated March 1994, were not before the General Assembly when it enacted Chapter 7. And there is little to suggest that the legislature considered the historical events and social-science data that the reports recount, beyond what in- dividual members may have recalled from personal experi- ence. We certainly cannot say on the basis of these reports that the District Court's findings on this point were clearly erroneous. 5 For examples of this limitation in application see Wygant, 476 U. S., at 274­276 (where a plurality of the Court concluded that remedying societal discrimination and promoting role models for students was not a compelling interest); Richmond v. J. A. Croson Co., supra, at 498­506. 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 911 Opinion of the Court Appellees devote most of their efforts to arguing that the race-based redistricting was constitutionally justified by the State's duty to comply with the Voting Rights Act. The District Court agreed and held that compliance with §§ 2 and 5 of the Act could be, and in this suit was, a compelling state interest. 861 F. Supp., at 437. In Miller, we ex- pressly left open the question whether under the proper circumstances compliance with the Voting Rights Act, on its own, could be a compelling interest. Miller, 515 U. S., at 921 ("[w]hether or not in some cases compliance with the Voting Rights Act, standing alone, can provide a compelling interest independent of any interest in remedying past discrimination . . ."). Here once again we do not reach that question because we find that creating an additional majority-black district was not required under a correct reading of § 5 and that District 12, as drawn, is not a remedy narrowly tailored to the State's professed interest in avoid- ing § 2 liability. With respect to § 5 of the Voting Rights Act, we believe our decision in Miller forecloses the argument, adopted by the District Court, that failure to engage in the race-based districting would have violated that section. In Miller, we considered an equal protection challenge to Georgia's Elev- enth Congressional District. As appellees do here, Georgia contended that its redistricting plan was necessary to meet the Justice Department's preclearance demands. The Jus- tice Department had interposed an objection to a prior plan that created only two majority-minority districts. We held that the challenged congressional plan was not required by a correct reading of § 5 and therefore compliance with that law could not justify race-based districting. Id., at 921 ("[C]ompliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws"). 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT 912 SHAW v. HUNT Opinion of the Court We believe the same conclusion must be drawn here. North Carolina's first plan, Chapter 601, indisputably was ameliorative, having created the first majority-black district in recent history. Thus, that plan, " `even if [it] fall[s] short of what might be accomplished in terms of increasing mi- nority representation,' " " `cannot violate § 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution.' " Id., at 924, quoting Days, Section 5 and the Role of the Justice Department, in B. Grofman & C. Davidson, Controversies in Minority Voting 56 (1992), and Beer v. United States, 425 U. S. 130, 141 (1976). As in Miller, the United States relies on the purpose prong of § 5 to explain the Department's preclearance objec- tions, alleging that North Carolina, for pretextual reasons, did not create a second majority-minority district. Brief for United States as Amicus Curiae 24. We again find the Gov- ernment's position "insupportable." Miller, supra, at 924. The General Assembly, in its submission filed with Chapter 601, explained why it did not create a second minority dis- trict; among its goals were "to keep precincts whole, to avoid dividing counties into more than two districts, and to give black voters a fair amount of influence by creating at least one district that was majority black in voter registration and by creating a substantial number of other districts in which black voters would exercise a significant influence over the choice of congressmen." App. 142. The submission also ex- plained in detail the disadvantages of other proposed plans. See, e. g., id., at 139, 140, 143 (Balmer Congress 6.2 Plan's "[s]econd `minority' district did not have effective minority voting majority" because it "depended on the cohesion of black and Native American voters, and no such pattern was evident" and "this plan dramatically decreased black influ- ence" in four other districts). A memorandum, sent to the Department of Justice on behalf of the legislators in charge of the redistricting process, provided still further reasons for the State's decision not to draw two minority districts as 517US3$67h 02-07-99 19:56:40 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 913 Opinion of the Court urged by various interested parties. App. 94­138; 861 F. Supp., at 480­481, n. 9 (Voorhees, C. J., dissenting). We have recognized that a "State's policy of adhering to other districting principles instead of creating as many majority- minority districts as possible does not support an inference that the plan `so discriminates on the basis of race or color as to violate the Constitution,' and thus cannot provide any basis under § 5 for the Justice Department's objection." Miller, supra, at 924 (citations omitted). It appears that the Justice Department was pursuing in North Carolina the same policy of maximizing the number of majority-black districts that it pursued in Georgia. See Miller, supra, at 924­925, and n. The two States under- went the preclearance processes during the same time period and the objection letters they received from the Civil Rights Division were substantially alike. App. in Miller v. John- son, O. T. 1994, No. 94­631, pp. 99­107. A North Carolina legislator recalled being told by the Assistant Attorney Gen- eral that "you have twenty-two percent black people in this State, you must have as close to twenty-two percent black Congressmen, or black Congressional Districts in this State." App. 201. See also Deposition of Senator Dennis Winner, id., at 698. We explained in Miller that this maximization policy is not properly grounded in § 5 and the Department's authority thereunder. 515 U. S., at 925 ("In utilizing § 5 to require States to create majority-minority districts wherever possible, the Department of Justice ex- panded its authority under the statute beyond what Con- gress intended and we have upheld"). We again reject the Department's expansive interpretation of § 5. Id., at 926­ 927. Cf. Johnson v. De Grandy, 512 U. S. 997, 1017 (1994) ("Failure to maximize cannot be the measure of § 2").6 6 The United States attempts to distinguish this suit from Miller by relying on the District Court's finding that North Carolina conducted "its own independent reassessment" of Chapter 601 and found "the De- partment's objection was legally and factually supportable." Brief for 517US3$67h 02-07-99 19:56:41 PAGES OPINPGT 914 SHAW v. HUNT Opinion of the Court With respect to § 2, appellees contend, and the District Court found, that failure to enact a plan with a second majority-black district would have left the State vulnerable to a lawsuit under this section. Our precedent establishes that a plaintiff may allege a § 2 violation in a single-member district if the manipulation of districting lines fragments politically cohesive minority voters among several districts or packs them into one district or a small number of districts, and thereby dilutes the voting strength of members of the minority population. Id., at 1007. To prevail on such a claim, a plaintiff must prove that the minority group "is suf- ficiently large and geographically compact to constitute a ma- jority in a single-member district"; that the minority group "is politically cohesive"; and that "the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Thornburg v. Gingles, 478 U. S. 30, 50­51 (1986); Growe v. Emison, 507 U. S. 25 (1993) (recognizing that the three Gingles preconditions would apply to a § 2 challenge to a single-member district). A court must also consider all other relevant circumstances and must ultimately find based on the totality of those circum- stances that members of a protected class "have less oppor- tunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U. S. C. § 1973(b). See De Grandy, supra, at 1010­1012. United States as Amicus Curiae 25; 861 F. Supp. 408, 474 (1994) (case below). The "reassessment" was the legislature's determination that it may be susceptible to a § 2 challenge. Id., at 464­465. Even if the General Assembly properly reached that conclusion, we doubt that a show- ing of discriminatory effect under § 2, alone, could support a claim of dis- criminatory purpose under § 5. Even if discriminatory purpose could be shown, the means of avoiding such a violation could be race neutral, and so we also doubt that the prospect of violating the purpose prong of § 5 could justify a race-based redistricting plan such as the one implemented by North Carolina. 517US3$67h 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 915 Opinion of the Court We assume, arguendo, for the purpose of resolving this suit, that compliance with § 2 could be a compelling interest, and we likewise assume, arguendo, that the General Assem- bly believed a second majority-minority district was needed in order not to violate § 2, and that the legislature at the time it acted had a strong basis in evidence to support that conclusion. We hold that even with the benefit of these assumptions, the North Carolina plan does not survive strict scrutiny because the remedy-the creation of District 12- is not narrowly tailored to the asserted end. Although we have not always provided precise guidance on how closely the means (the racial classification) must serve the end (the justification or compelling interest), we have always expected that the legislative action would sub- stantially address, if not achieve, the avowed purpose. See Miller, supra, at 922 ("[T]he judiciary retains an independ- ent obligation . . . to ensure that the State's actions are nar- rowly tailored to achieve a compelling interest"); Wygant, 476 U. S., at 280 (opinion of Powell, J.) ("[T]he means chosen to accomplish the State's asserted purpose must be specifi- cally and narrowly framed to accomplish that purpose") id., at 278, n. 5 (opinion of Powell, J.) (race-based state action must be remedial); Shaw I, 509 U. S., at 655 ("A reapportion- ment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression"). Cf. Missouri v. Jenkins, 515 U. S. 70, 88 (1995) (With regard to the reme- dial authority of a federal court: " `The remedy must . . . be related to "the condition alleged to offend the Constitution . . . ." ' " and must be " `remedial in nature, that is, it must be designed as nearly as possible "to restore the victims of discriminatory conduct to the position they would have occu- pied in the absence of such conduct" ' ") (quoting Milliken v. Bradley, 433 U. S. 267, 280­281 (1977), in turn quoting Milli- ken v. Bradley, 418 U. S. 717, 738, 746 (1974)). Where, as 517US3$67h 02-07-99 19:56:41 PAGES OPINPGT 916 SHAW v. HUNT Opinion of the Court here, we assume avoidance of § 2 liability to be a compelling state interest, we think that the racial classification would have to realize that goal; the legislative action must, at a minimum, remedy the anticipated violation or achieve com- pliance to be narrowly tailored.7 District 12 could not remedy any potential § 2 violation. As discussed above, a plaintiff must show that the minority group is "geographically compact" to establish § 2 liability. No one looking at District 12 could reasonably suggest that the district contains a "geographically compact" population of any race. See 861 F. Supp., at 469. Therefore where that district sits, "there neither has been a wrong nor can be a remedy." Growe, supra, at 41 (footnote omitted).8 Appellees do not defend District 12 by arguing that the district is geographically compact, however. Rather they contend, and a majority of the District Court agreed, 861 F. Supp., at 454­455, n. 50, that once a legislature has a strong basis in evidence for concluding that a § 2 violation exists in the State, it may draw a majority-minority district anywhere, even if the district is in no way coincident with 7 We do not suggest that where the governmental interest is eradicating the effects of past discrimination the race-based action necessarily would have to achieve fully its task to be narrowly tailored. 8 Justice Stevens in dissent argues that it does not matter that Dis- trict 12 could not possibly remedy a § 2 violation because he believes the State's plan would avoid § 2 liability. Post, at 946­947. As support, Jus- tice Stevens relies on our decision in Johnson v. De Grandy, 512 U. S. 997 (1994), which he reads to say that "a plaintiff cannot make out a prima facie case of vote dilution under § 2 unless he can demonstrate that his proposed plan contains more majority-minority districts than the State's." Post, at 946 (citing De Grandy, supra, at 1008). The dissent's reading is flawed by its omission. In De Grandy, we presumed that the minor- ity districts drawn in the State's plan were lawfully drawn and, indeed, we expressly stated that a vote-dilution claim under § 2 "requires the possibility of creating more than the existing number of reasonably com- pact districts with a sufficiently large minority population to elect candi- dates of its choice." De Grandy, supra, at 1008 (emphasis added). 517US3$67h 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 917 Opinion of the Court the compact Gingles district, as long as racially polarized voting exists where the district is ultimately drawn. Tr. of Oral Arg. 50­51, 54­56. We find this position singularly unpersuasive. We do not see how a district so drawn would avoid § 2 liability. If a § 2 violation is proved for a particular area, it flows from the fact that individuals in this area "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U. S. C. § 1973(b). The vote-dilution injuries suffered by these persons are not remedied by creating a safe majority- black district somewhere else in the State. For example, if a geographically compact, cohesive minority population lives in south-central to southeastern North Carolina, as the Justice Department's objection letter suggested, District 12 that spans the Piedmont Crescent would not address that § 2 violation. The black voters of the south-central to south- eastern region would still be suffering precisely the same injury that they suffered before District 12 was drawn. District 12 would not address the professed interest of relieving the vote dilution, much less be narrowly tailored to accomplish the goal. Arguing, as appellees do and the District Court did, that the State may draw the district anywhere derives from a misconception of the vote-dilution claim. To accept that the district may be placed anywhere implies that the claim, and hence the coordinate right to an undiluted vote (to cast a ballot equal among voters), belongs to the minority as a group and not to its individual members. It does not. See § 1973 ("the right of any citizen").9 9 This does not mean that a § 2 plaintiff has the right to be placed in a majority-minority district once a violation of the statute is shown. States retain broad discretion in drawing districts to comply with the mandate of § 2. Voinovich v. Quilter, 507 U. S. 146, 156­157 (1993); Growe v. Emi- son, 507 U. S. 25, 32­37 (1993). 517US3$67h 02-07-99 19:56:41 PAGES OPINPGT 918 SHAW v. HUNT Stevens, J., dissenting The United States submits that District 12 does, in fact, incorporate a "substantial portio[n]" of the concentration of minority voters that would have given rise to a § 2 claim. Brief for United States as Amicus Curiae 27. Specifically, the Government claims that "District 12 . . . contains the heavy concentration of African Americans in Mecklenburg County, the same urban component included in the second minority opportunity district in some of the alternative plans." Ibid. The portion of District 12 that lies in Meck- lenburg County covers not more than 20% of the district. See Exhibit 301 of Plaintiff-Intervenors, Map A, Map 9B. We do not think that this degree of incorporation could mean that District 12 substantially addresses the § 2 violation. We hold, therefore, that District 12 is not narrowly tailored to the State's asserted interest in complying with § 2 of the Voting Rights Act. For the foregoing reasons, the judgment of the District Court is Reversed. Justice Stevens, with whom Justice Ginsburg and Justice Breyer join as to Parts II­V, dissenting. As I have explained on prior occasions, I am convinced that the Court's aggressive supervision of state action de- signed to accommodate the political concerns of historically disadvantaged minority groups is seriously misguided. A majority's attempt to enable the minority to participate more effectively in the process of democratic government should not be viewed with the same hostility that is appropriate for oppressive and exclusionary abuses of political power. See, e. g., Adarand Constructors, Inc. v. Pen a, 515 U. S. 200, 243­ 249 (1995) (Stevens, J., dissenting); Miller v. Johnson, 515 U. S. 900, 931­933 (1995) (Stevens, J., dissenting); Shaw v. Reno, 509 U. S. 630, 634­635 (1993) (Shaw I) (Stevens, J., dissenting); Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 316­ 317 (1986) (Stevens, J., dissenting); Cousins v. City Council 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 919 Stevens, J., dissenting of Chicago, 466 F. 2d 830, 852 (CA7 1972) (Stevens, J., dis- senting). But even if we accept the Court's refusal to recog- nize any distinction between two vastly different kinds of situations, we should affirm the judgment of the District Court in this case. As the Court analyzes the case, it raises three distinct questions: (1) Should North Carolina's decision to create two congressional districts in which a majority of the voters are African-American be subject to strict constitutional scru- tiny?; (2) If so, did North Carolina have a compelling interest in creating such districts?; and (3) If so, was the creation of those districts "narrowly tailored" to further the asserted compelling interest? The Court inadequately explains its answer to the first question, and it avoids answering the second because it concludes that its answer to the third dis- poses of the case. In my estimation, the Court's disposition of all three questions is most unsatisfactory. After commenting on the majority's treatment of the threshold jurisdictional issue, I shall discuss separately the three questions outlined above. In doing so, I do not mean to imply that I endorse the majority's effort to apply in rigid fashion the strict scrutiny analysis developed for cases of a far different type. I mean only to show that, even on its own terms, the majority's analysis fails to convince. I I have explained previously why I believe that the Court has failed to supply a coherent theory of standing to justify its emerging and misguided race-based districting juris- prudence. See Miller v. Johnson, 515 U. S., at 929­931 (Stevens, J., dissenting); United States v. Hays, 515 U. S. 737, 750­751 (1995) (Stevens, J., concurring in judgment). The Court's analysis of the standing question in this case is similarly unsatisfactory, and, in my view, reflects the fact that the so-called Shaw claim seeks to employ the federal courts to impose a particular form of electoral process, 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 920 SHAW v. HUNT Stevens, J., dissenting rather than to redress any racially discriminatory treatment that the electoral process has imposed. In this instance, therefore, I shall consider the standing question in light of the majority's assertions about the nature of the underlying constitutional challenge. I begin by noting that this case reveals the Shaw claim to be useful less as a tool for protecting against racial discrimi- nation than as a means by which state residents may second- guess legislative districting in federal court for partisan ends. The plaintiff-intervenors in this case are Republicans. It is apparent from the record that their real grievance is that they are represented in Congress by Democrats when they would prefer to be represented by members of their own party. They do not suggest that the racial identity of their representatives is a matter of concern, but it is obvious that their political identity is critical. See Pope v. Blue, 809 F. Supp. 392 (WDNC 1992). Significantly, from the outset of the legislative delibera- tions, the Republican Party did not oppose the creation of more than one majority-minority district. Indeed, sev- eral plans proposed by the Republicans in the state legisla- ture provided two such districts. 861 F. Supp. 408, 460 (EDNC 1994). However, now that the State has created a district that is designed to preserve Democratic incumbents, and now that the plaintiff-intervenors' partisan gerryman- dering suit has been dismissed for failure to state a claim, these intervenors have joined this racial gerrymandering challenge. It is plain that these intervenors are using their allega- tions of impermissibly race-based districting to achieve the same substantive result that their previous, less emotionally charged partisan gerrymandering challenge failed to secure. In light of the amorphous nature of the race discrimination claim recognized in Shaw I, it is inevitable that allegations of racial gerrymandering will become a standard means by which unsuccessful majority-race candidates, and their par- 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 921 Stevens, J., dissenting ties, will seek to obtain judicially what they could not ob- tain electorally. Even if the other plaintiffs to this litigation do object to the use of race in the districting process for reasons other than partisan political advantage, the majority fails to ex- plain adequately the nature of their constitutional challenge, or why it should be cognizable under the Equal Protection Clause. Not surprisingly, therefore, the majority's expla- nation of why these plaintiffs have standing to bring this challenge is unconvincing. It is important to point out what these plaintiffs do not claim. Counsel for appellees put the matter succinctly when he stated that this case is not Gomillion v. Lightfoot, 364 U. S. 339 (1960).1 There, the plaintiffs had been prohibited from voting in municipal elections; here, all voters remain free to select representatives to Congress. Thus, while the plaintiffs purport to be challenging an unconstitutional racial gerrymander, they do not claim that they have been shut out of the electoral process on account of race, or that their vot- ing power has been diluted as a consequence of race-based districting. Shaw I, 509 U. S., at 641. What then is the wrong that these plaintiffs have suffered that entitles them to call upon a federal court for redress? In Shaw I, the majority construed the plaintiffs' claim to be that the Equal Protection Clause forbids race-based dis- tricting designed solely to "separate" voters by race, and that North Carolina's districting process violated the prohi- bition. Ibid. Even if that were the claim before us, these plaintiffs should not have standing to bring it. The record shows that North Carolina's districting plan served to re- quire these plaintiffs to share a district with voters of a dif- ferent race. Thus, the injury that these plaintiffs have suf- fered, to the extent that there has been injury at all, stems 1 Tr. of Oral Arg. 58. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 922 SHAW v. HUNT Stevens, J., dissenting from the integrative rather than the segregative effects of the State's redistricting plan. Perhaps cognizant of this incongruity, counsel for plaintiffs asserted a rather more abstract objection to race-based dis- tricting at oral argument. He suggested that the plaintiffs objected to the use of race in the districting process not be- cause of any adverse consequence that these plaintiffs, on account of their race, had suffered more than other persons, but rather because the State's failure to obey a constitutional command to legislate in a color-blind manner conveyed a message to voters across the State that "there are two black districts and ten white districts." 2 Tr. of Oral Arg. 5. Such a challenge calls to mind Justice Frankfurter's memo- rable characterization of the suit brought in Colegrove v. Green, 328 U. S. 549, 552 (1946). "This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens," he ex- plained. "The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity." Ibid. Suits of this type necessarily press the boundaries of federal-court juris- diction, if they do not surpass it. When a federal court is called upon, as it is here, to parse among varying legislative choices about the political structure of a State, and when the litigant's claim ultimately rests on "a difference of opinion as to the function of representative government" rather than a claim of discriminatory exclusion, Baker v. Carr, 369 U. S. 186, 333 (1962) (Harlan, J., dissenting), there is reason for 2 Counsel went so far as to liken the State's districting plan to state- run water fountains that are available to citizens of all races but are nev- ertheless labeled "Black" and "White." He argued that the State's race- based redistricting map constituted an unlawful racial classification in the same way that the signs above the fountains would. Although neither racial classification would deprive any person of a tangible benefit-water from both fountains and effective political representation would remain equally available to persons of all races-each would be unconstitutional because of the very fact that the State had espoused a racial classification publicly. Id., at 5­6. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 923 Stevens, J., dissenting pause. Cf. Lujan v. Defenders of Wildlife, 504 U. S. 555, 573­574 (1992).3 Even if an objection to a State's decision to forgo color- blind districting is cognizable under some constitutional pro- vision, I do not understand why that provision should be the Equal Protection Clause. In Reynolds v. Sims, 377 U. S. 533, 561 (1964), we were careful to point out that "[a] pre- dominant consideration in determining whether a State's legislative apportionment scheme constitutes an invidious discrimination violative of rights asserted under the Equal Protection Clause is that the rights allegedly impaired are individual and personal in nature." In addition, in Palmer v. Thompson, 403 U. S. 217, 225 (1971), we explained that racially motivated legislation violates the Equal Protection Clause only when the challenged legislation "affect[s] blacks differently from whites." To be sure, as some commentators have noted, we have permitted generalized claims of harm resulting from state- sponsored messages to secure standing under the Establish- ment Clause. Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 499­ 524 (1993). It would be quite strange, however, to confer similarly broad standing under the Equal Protection Clause because that Clause protects against wrongs which by defi- nition burden some persons but not others. Here, of course, it appears that no individual has been bur- dened more than any other. The supposedly insidious mes- sages that Shaw I contends will follow from extremely irreg- 3 There, a majority of the Court stated that "[w]e have consistently held that a plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy." Lujan v. Defenders of Wildlife, 504 U. S., at 573­574. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 924 SHAW v. HUNT Stevens, J., dissenting ular race-based districting will presumably be received in equal measure by all state residents. For that reason, the claimed violation of a shared right to a color-blind districting process would not seem to implicate the Equal Protection Clause at all precisely because it rests neither on a challenge to the State's decision to distribute burdens and benefits un- equally, nor on a claim that the State's formally equal treat- ment of its citizens in fact stamps persons of one race with a badge of inferiority. See Bush v. Vera, post, at 1052­1054 (Souter, J., dissenting). Indeed, to the extent that any person has been burdened more than any other by the State's districting plan, geog- raphy rather than race would seem to be to blame. The State has not chosen to subject only persons of a particular race to race-based districting. Rather, the State has se- lected certain geographical regions in which all voters-both white and black-have been assigned to race-based districts. Thus, what distinguishes those residents who have received a "color-blind" districting process from those who have not is geography rather than racial identity. Not surprisingly, therefore, Shaw I emphasizes that the race of the members of the plaintiff class is irrelevant. Shaw I, 509 U. S., at 641. Given the absence of any showing, or, indeed, any allega- tion, that any person has been harmed more than any other on account of race, the Court's decision to entertain the claim of these plaintiffs would seem to emanate less from the Equal Protection Clause's bar against racial discrimination than from the Court's unarticulated recognition of a new sub- stantive due process right to "color-blind" districting itself. See id., at 641­642.4 Revealed for what it is, the constitu- 4 The Court's decisions in Powers v. Ohio, 499 U. S. 400 (1991), and Bat- son v. Kentucky, 476 U. S. 79 (1986), are not to the contrary. There, we have held that defendants have third-party standing, no matter what their race, to assert the rights of jurors, who have been deprived because of their race of a benefit available to all others. No voter in this litigation 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 925 Stevens, J., dissenting tional claim before us ultimately depends for its success on little more than speculative judicial suppositions about the societal message that is to be gleaned from race-based dis- tricting. I know of no workable constitutional principle, however, that can discern whether the message conveyed is a distressing endorsement of racial separatism, or an inspir- ing call to integrate the political process. As a result, I know of no basis for recognizing the right to color-blind districting that has been asserted here. Even if there were some merit to the constitutional claim, it is at least clear that it requires the recognition of a new constitutional right. For that very reason, the Court's sug- gestion that pre-Shaw, race discrimination precedent some- how compels the application of strict scrutiny is disingen- uous. The fact that our equal protection jurisprudence requires strict scrutiny of a claim that the State has used race as a criterion for imposing burdens on some persons but not others does not mean that the Constitution demands that a similar level of review obtain for a claim that the State has used race to impose equal burdens on the polity as a whole, or upon some nonracially defined portion thereof. As to the latter claim, the State may well deserve more deference when it determines that racial considerations are legitimate in a context that results in no race-based, unequal treatment. To take but one example, I do not believe that it would make sense to apply strict scrutiny to the Federal Govern- ment's decision to require citizens to identify their race on census forms, even though that requirement would force citizens to classify themselves racially, and even though such a requirement would arguably convey an insidious message about the Government's continuing belief that race remains relevant to the formulation of public policy. Of course, if the Federal Government required only those persons residing in has shown either that he has uniquely been denied an otherwise generally available benefit on account of race, or that anyone else has. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 926 SHAW v. HUNT Stevens, J., dissenting the Midwest to identify their race on the census form, I do not doubt that only persons living in States in that region who filled out the forms would have standing to bring the constitutional challenge. I do doubt, however, whether our equal protection jurisprudence would require a federal court to evaluate the claim itself under strict scrutiny. In such a case, the only unequal treatment would have resulted from the State's decision to discriminate on the basis of geography, a race-neutral selection criterion that has not generally been thought to necessitate close judicial review. The majority ignores these concerns and simply applies the standing test set forth in United States v. Hays, 515 U. S. 737 (1995), on the apparent assumption that this test ade- quately identifies those who have been personally denied "equal treatment" on account of race. Id., at 745. In Hays, the Court held that a plaintiff has standing to challenge a State's use of race in districting for Shaw claims if he (1) lives in a district that allegedly constitutes a racial gerry- mander or (2) shows that, although he resides outside such a district, he has been personally subject to a racial classifica- tion. Ante, at 904. On this basis, the Court concludes that none of the plaintiffs in this action has standing to challenge District 1, but that two of them have standing to challenge District 12. Ibid. As I understand it, the distinction drawn in Hays between those who live within a district, and those who do not, is thought to be relevant because voters who live in the "gerry- mandered" district will have suffered the "personal" injuries inflicted by race-based districting more than other state resi- dents.5 Those injuries are said to be "representational" harms in the sense that race-based districting may cause officeholders to represent only those of the majority race in 5 As I have explained, even if the Hays test showed that much, it would still only demonstrate that the State had used geography, rather than race, to select the citizens who would be deprived of a color-blind dis- tricting process. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 927 Stevens, J., dissenting their district, or "stigmatic" harms, in the sense that the race-based line-drawing may promote racial hostility. United States v. Hays, 515 U. S., at 744­745; Shaw I, 509 U. S., at 646­649. Even if I were to accept the flawed assumption that the Hays test serves to identify any voter who has been bur- dened more than any other as a consequence of his race, I would still find it a most puzzling inquiry. What the Court fails to explain, as it failed to explain in Hays, is why evi- dence showing either that one lives in an allegedly racially gerrymandered district or that one's district assignment directly resulted from a racial classification should suffice to distinguish those who have suffered the representational and stigmatic harms that supposedly follow from race-based districting from those who have not. If representational injuries are what one must show to secure standing under Hays, then a demonstration that a voter's race led to his assignment to a particular district would perhaps be relevant to the jurisdictional inquiry, but surely not sufficient to satisfy it. There is no necessary correlation between race-based districting assignments and inadequate representation. See Davis v. Bandemer, 478 U. S. 109, 132 (1986) (opinion of White, J.). Indeed, any as- sumption that such a correlation exists could only be based on a stereotypical assumption about the kind of representa- tion that politicians elected by minority voters are capable of providing. See Miller v. Johnson, 515 U. S., at 930 (Ste- vens, J., dissenting). To prove the representational harms that Hays holds are needed to establish standing to assert a Shaw claim, one would think that plaintiffs should be required to put forth evidence that demonstrates that their political representa- tives are actually unlikely to provide effective representa- tion to those voters whose interests are not aligned with those of the majority race in their district. Here, as the record reveals, no plaintiff has made such a showing. See 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 928 SHAW v. HUNT Stevens, J., dissenting 861 F. Supp., at 424­425, 471, n. 59. Given our general re- luctance to hear claims founded on speculative assertions of injury, I do not understand why the majority concludes that the speculative possibility that race-based districting "may" cause these plaintiffs to receive less than complete represen- tation suffices to create a cognizable case or controversy. United States v. Hays, 515 U. S., at 745. If under Hays the so-called "stigmatic" harms which re- sult from extreme race-based districting suffice to secure standing, then I fail to see why it matters whether the liti- gants live within the "gerrymandered" district or were placed in a district as a result of their race. As I have pointed out, all voters in North Carolina would seem to be equally affected by the messages of "balkanization" or "racial apartheid" that racially gerrymandered maps supposedly convey, cf. Davis, 478 U. S., at 153 (O'Connor, J., concurring in judgment). Even if race-based districting could be said to impose more personal harms than the so-called "stigmatic" harms that Hays itself identified, I do not understand why any voter's reputation or dignity should be presumed to have been harmed simply because he resides in a highly integrated, majority-minority voting district that the legislature has deliberately created. Certainly the background social facts are not such that we should presume that the "stigmatic harm" described in Hays and Shaw I amounts to that found cognizable under the Equal Protection Clause in Brown v. Board of Education, 347 U. S. 483, 495 (1954), where state- sponsored school segregation caused some students, but not others, to be stamped with a badge of inferiority on account of their race. See Shaw I, 509 U. S., at 682, n. 4 (Souter, J., dissenting). In sum, even if it could be assumed that the plaintiffs in this case asserted the personalized injuries recognized in Hays at the time of Shaw I by virtue of their bare allegations of racial gerrymandering, they have surely failed to prove 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 929 Stevens, J., dissenting the existence of such injuries to the degree that we normally require at this stage of the litigation. See Lujan v. Defend- ers of Wildlife, 504 U. S. 555 (1992). Thus, so long as the Court insists on treating this type of suit as a traditional equal protection claim, it must either mean to take a broader view of the power of federal courts to entertain challenges to race-based governmental action than it has heretofore adopted, see Allen v. Wright, 468 U. S. 737 (1984); cf. Palmer, 403 U. S., at 224­225, or to create a special exception to general jurisdictional limitations for plaintiffs such as those before us here. Suffice it to say, I charitably assume the former to be the case, and proceed to consider the merits on the assumption that Shaw I was correctly decided. II The District Court concluded that Shaw I required the application of strict scrutiny in any case containing proof that "racial considerations played a `substantial' or `motivat- ing' role in the line-drawing process, even if they were not the only factor that influenced that process." 861 F. Supp., at 431. The court acknowledged that under this standard any deliberate effort to draw majority-minority districts in conformity with the Voting Rights Act would attract the strictest constitutional review, regardless of whether race- neutral districting criteria were also considered. Id., at 429. As a consequence, it applied strict scrutiny in this case solely on the basis of North Carolina's concession that it sought to draw two majority-minority districts in order to comply with the Voting Rights Act, and without performing any inquiry into whether North Carolina had considered race-neutral districting criteria in drawing District 12's boundaries. As the majority concludes, the District Court's test for triggering strict scrutiny set too low a threshold for sub- jecting a State's districting effort to rigorous, if not fatal, constitutional review. Ante, at 905. In my view, therefore, the Court should at the very least remand the case to allow 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 930 SHAW v. HUNT Stevens, J., dissenting the District Court, which possesses an obvious familiarity with the record and a superior understanding of local dy- namics,6 to make the fact-intensive inquiry into legislative purpose that the proper test for triggering strict scrutiny requires. Although I do not share the majority's willing- ness to divine on my own the degree to which race deter- mined the precise contours of District 12, if forced to decide the matter on this record, I would reject the majority's conclusion that a fair application of precedent dictates that North Carolina's redistricting effort should be subject to strict scrutiny. Subsequent to the District Court's decision, we handed down Miller v. Johnson, 515 U. S. 900 (1995), and issued our summary affirmance in DeWitt v. Wilson, 515 U. S. 1170 (1995). As I understand the Miller test, and as it was applied in DeWitt, state legislatures may take racial and ethnic characteristics of voters into account when they are drawing district boundaries without triggering strict scru- tiny so long as race is not the "predominant" consideration guiding their deliberations. Miller v. Johnson, 515 U. S., at 916. To show that race has been "predominant," a plain- tiff must show that "the legislature subordinated traditional race-neutral districting principles . . . to racial considera- tions" in drawing that district. Ibid.; see also id., at 928 (O'Connor, J., concurring) ("To invoke strict scrutiny, a plaintiff must show that the State has relied on race in sub- stantial disregard of customary and traditional districting practices"); DeWitt v. Wilson, 856 F. Supp. 1409, 1412 (ED Cal. 1994), aff'd in part, dism'd in part, 515 U. S. 1170 (1995) (declining to apply strict scrutiny because State complied with traditional districting principles). 6 That is particularly true here because the author of the District Court opinion was also the author of the District Court opinion in Gingles v. Edmisten, 590 F. Supp. 345 (EDNC 1984), aff'd in part, rev'd in part, Thornburg v. Gingles, 478 U. S. 30 (1986). 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 931 Stevens, J., dissenting Indeed, the principal opinion in Bush v. Vera, post, p. 952, issued this same day, makes clear that the deliberate con- sideration of race in drawing district lines does not in and of itself invite constitutional suspicion. As the opinion there explains, our precedents do not require the application of strict scrutiny "to all cases of intentional creation of majority-minority districts." Bush, post, at 958. Rather, strict scrutiny should apply only upon a demonstration that " `race for its own sake, and not other districting princi- ples, was the legislature's dominant and controlling rationale in drawing its district lines.' " Ibid. (quoting Miller, 515 U. S., at 913). Because "the legitimate consideration of race in a dis- tricting decision is usually inevitable under the Voting Rights Act when communities are racially mixed," Shaw I, 509 U. S., at 683 (Souter, J., dissenting), our decisions in Miller, DeWitt, and Bush have quite properly declined to deem all race-based districting subject to strict scrutiny. Unlike many situations in which the consideration of race itself necessarily gives rise to constitutional suspicion, see, e. g., Batson v. Kentucky, 476 U. S. 79 (1986); Adarand Con- structors, Inc. v. Pen a, 515 U. S. 200 (1995), our precedents have sensibly recognized that in the context of redistricting a plaintiff must demonstrate that race had been used in a particularly determinative manner before strict constitu- tional scrutiny should obtain. Cf. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). This higher threshold for triggering strict scrutiny comports with the fact that the shared representational and stigmatic harms that Shaw pur- ports to guard against are likely to occur only when the State subordinates race-neutral districting principles to a racial goal. See Shaw I, 509 U. S., at 646­649; 861 F. Supp., at 476­478 (Voorhees, C. J., dissenting); Pildes & Niemi, 92 Mich. L. Rev., at 499­524. Shaw I is entirely consistent with our holdings that race- based districting which respects traditional districting prin- 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 932 SHAW v. HUNT Stevens, J., dissenting ciples does not give rise to constitutional suspicion. As the District Court noted, Shaw I expressly reserved the ques- tion whether " `the intentional creation of majority-minority districts, without more,' always gives rise to an equal protec- tion claim." 861 F. Supp., at 429 (quoting Shaw I, 509 U. S., at 649). Shaw I held only that an equal protection claim could lie as a result of allegations suggesting that the State's districting was "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles." Id., at 642 (emphasis added). Moreover, Miller belies the conclusion that strict scrutiny must apply to all deliberate attempts to draw majority- minority districts if the Equal Protection Clause is to pro- vide any practical limitation on a State's power to engage in race-based districting. Although Georgia argued that it had complied with traditional districting principles, the Miller majority had little difficulty concluding that the State's race- neutral explanations were implausible. Miller v. Johnson, 515 U. S. 900 (1995).7 Thus, Miller demonstrates that al- though States may avoid strict scrutiny by complying with traditional districting principles, they may not do so by prof- fering pretextual, race-neutral explanations for their maps. The notion that conscientious federal judges will be able to distinguish race-neutral explanations from pretextual ones is hardly foreign to our race discrimination jurisprudence. In a variety of contexts, from employment to juror selection, we have required plaintiffs to demonstrate not only that a 7 For example, the State argued that it drew the majority-minority district under review so that it would follow precinct lines, but the Court found that precinct lines had been relied on only because they happened to facilitate the State's effort to achieve a particular racial makeup. Simi- larly, the State argued that District 11 was drawn in order to ensure that communities of interest would be kept within a single district, but the Court found that no such communities could be found within the dis- trict's boundaries. See Miller v. Johnson, 515 U. S., at 918­920. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 933 Stevens, J., dissenting defendant's action could be understood as impermissibly race based, but also that the defendant's assertedly race- neutral explanation for that action was in fact a pretext for racial discrimination. Purkett v. Elem, 514 U. S. 765, 767­ 768 (1995); St. Mary's Honor Center v. Hicks, 509 U. S. 502, 518­519 (1993). Similarly, I understand Shaw I, Miller, De- Witt, and Bush to require plaintiffs to prove that the State did not respect traditional districting principles in drawing majority-minority districts. See Bush, post, at 958. In holding that the present record shows race to have been the "predominant" consideration in the creation of District 12, the Court relies on two pieces of evidence: the State's admission that its "overriding" purpose was to " `create two congressional districts with effective black voting majori- ties,' " ante, at 906; and the " `geographically non-compact' " shape of District 12, ibid. In my view, this evidence does not suffice to trigger strict scrutiny under the "demanding" test that Miller establishes. Miller v. Johnson, 515 U. S., at 928 (O'Connor, J., concurring).8 North Carolina's admission reveals that it intended to create a second majority-minority district.9 That says noth- 8 It is unclear whether the majority believes that it is the combination of these two pieces of evidence that satisfies Miller, or whether either one would suffice. 9 Citing to trial and deposition testimony, the majority also relies on a statement by North Carolina's chief mapmaker, Gerry Cohen, that the creation of a majority-minority district was the " `principal reason' " for the configurations of District 1 and District 12. Ante, at 906. Mr. Co- hen's more complete explanation of the " `principal reason' " was to create "two majority black districts that had communities of interest within each one." Tr. 514. What Mr. Cohen admitted, therefore, was only that the State intentionally drew a majority-minority district that would respect traditional districting principles. Moreover, Mr. Cohen's "admission" in his deposition only pertained to District 1. App. 675. Finally, he ex- plained in his deposition that "other reasons" also explained that district's configuration. Ibid. Absent a showing that those "other reasons" were race based, Mr. Cohen's admission does not show that North Carolina 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 934 SHAW v. HUNT Stevens, J., dissenting ing about whether it subordinated traditional districting principles in drawing District 12. States that conclude that federal law requires majority-minority districts have little choice but to give "overriding" weight to that concern. In- deed, in Voinovich v. Quilter, 507 U. S. 146, 159 (1993), we explained that evidence that showed that Ohio's chief mapmaker preferred "federal over state law when he be- lieved the two in conflict does not raise an inference of in- tentional discrimination; it demonstrates obedience to the Supremacy Clause of the United States Constitution." For that reason, we have not previously held that concessions such as North Carolina's suffice to trigger strict scrutiny. Cf. Bush, post, at 958, 962.10 Thus, the State's concession is of little significance. District 12's noncompact appearance also fails to show that North Carolina engaged in suspect race-based districting. There is no federal statutory or constitutional requirement that state electoral boundaries conform to any particular ideal of geographic compactness. In addition, although the North Carolina Constitution requires electoral districts for state elective office to be contiguous, it does not require them to be geographically compact.11 N. C. Const., Art. II, subordinated race-neutral districting criteria in drawing District 1; it shows only that the need to comply with federal law was critical. 10 In DeWitt v. Wilson, 856 F. Supp. 1409 (ED Cal. 1994), for example, the State conceded that compliance with § 5 of the Voting Rights Act constituted the one unavoidable limitation on its redistricting process. Id., at 1410. Nevertheless, we affirmed the District Court's conclusion that strict scrutiny did not apply because the State gave significant weight to several race-neutral considerations in meeting that goal. Id., at 1415. Moreover, in Miller v. Johnson, 515 U. S. 900 (1995), the Court applied strict scrutiny only after it concluded that the State considered only race in adding African-American voters to District 11; it did not hold that Geor- gia's general admissions about its desire to comply with federal law them- selves sufficed. Id., at 917­919. 11 The State Constitution sets forth no limitation on districting for federal offices. Moreover, the state-prepared 1991 Legislator's Guide to North Carolina Legislative and Congressional Redistricting points out 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 935 Stevens, J., dissenting §§ 2, 5 (1984). Given that numerous States have written geographical compactness requirements into their State Constitutions, North Carolina's omission on this score is noteworthy. See Grofman, Criteria for Districting: A Social Science Perspective, 33 UCLA L. Rev. 77, 84 (1985). It reveals that North Carolina's creation of a geographically noncompact district does not itself mark a deviation from any prevailing state districting principle.12 Thus, while the serpentine character of District 12 may give rise to an infer- ence that traditional districting principles were subordinated to race in determining its boundaries, it cannot fairly be said to prove that conclusion in light of the clear evidence demon- strating race-neutral explanations for the district's tortured shape. See infra, at 936­937. There is a more fundamental flaw in the majority's con- clusion that racial concerns predominantly explain the cre- ation of District 12. The evidence of shape and intent re- lied on by the majority cannot overcome the basic fact that North Carolina did not have to draw Districts 1 and 12 in order to comply with the Justice Department's finding that federal law required the creation of two majority-minority districts. That goal could have been more straightfor- that the state-law prohibition against dividing counties in formulating state electoral districts was eliminated in the 1980's. See Legislator's Guide to North Carolina Legislative and Congressional Redistricting 12 (Feb. 1991). 12 Indeed, the State's guide to redistricting specifically informed state legislators that compactness was of little legal significance. "Neither the State nor federal constitution requires districts to be compact. Critics often refer to the lack of compactness of a particular district or group of districts as a sign of gerrymandering, but no court has ever struck down a plan merely on the basis that it did not appear to be compact. Although there are geometric methods for measuring the compactness of an area, these methods have not been recognized as judicial standards for evaluat- ing the compactness of districts. "The recent decision in Davis v. Bandemer . . . mentions irregularly- shaped districts as a possible sign of gerrymandering but makes clear that irregular shapes alone do not invalidate a redistricting plan." Ibid. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 936 SHAW v. HUNT Stevens, J., dissenting wardly accomplished by simply adopting the Attorney Gen- eral's recommendation to draw a geographically compact dis- trict in the southeastern portion of the State in addition to the majority-minority district that had already been drawn in the northeastern and Piedmont regions. See Shaw I, 509 U. S., at 634­635; 861 F. Supp., at 460, 461­462, 464. That the legislature chose to draw Districts 1 and 12 in- stead surely suggests that something more than the desire to create a majority-minority district took precedence. For that reason, this case would seem to present a version of the very hypothetical that the principal opinion in Bush sug- gests should pose no constitutional problem-"an otherwise compact majority-minority district that is misshapen by pre- dominantly nonracial, political manipulation." Bush, post, at 981. Here, no evidence suggests that race played any role in the legislature's decision to choose the winding contours of District 12 over the more cartographically pleasant bound- aries proposed by the Attorney General.13 Rather, the rec- 13 The State's decision to give little weight to how the district would look on a map is entirely justifiable. Although a voter clearly has an in- terest in being in a district whose members share similar interests and concerns, that interest need not, and often is not, vindicated by drawing districts with attractive shapes. "[The Districts'] perceived `ugliness'- their extreme irregularity of shape-is entirely a function of an artificial perspective unrelated to the common goings and comings of the citizen- voter. From the mapmaker's wholly imaginary vertical perspective at 1:25,000 or so range, a citizen may well find his district's one-dimensional, featureless shape aesthetically `bizarre,' `grotesque,' or `ugly.' But back down at ground or eye-level, viewing things from his normal closely-bound horizontal perspective, the irregularity of outline or exact volume of the district in which he resides surely is not a matter of any great practical consequence to his conduct as a citizen-voter." 861 F. Supp. 408, 472, n. 60 (EDNC 1994). In the same vein, I doubt that residents of hook-shaped Massachusetts receive less effective representation than their counterparts in perfectly rectangular Wyoming, or that the voting power of residents of Hawaii 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 937 Stevens, J., dissenting ord reveals that two race-neutral, traditional districting cri- teria determined District 12's shape: the interest in ensuring that incumbents would remain residents of the districts they have previously represented; and the interest in placing pre- dominantly rural voters in one district and predominantly urban voters in another. 861 F. Supp., at 466­472; see also Miller v. Johnson, 515 U. S. 900 (1995) (considering whether communities of interest were preserved); White v. Weiser, 412 U. S. 783, 793­797 (1973) (establishing incumbency pro- tection as a legitimate districting principle). Unlike most States, North Carolina has not given its chief executive any power to veto enactments of its legislature. Thus, even though the voters had elected a Republican Governor, the Democratic majority in the legislature was in control of the districting process. It was the Democrats who first decided to adopt the 11-white-district plan that arguably would have violated § 2 of the Voting Rights Act and gave rise to the Attorney General's objection under § 5. It was also the Democrats who rejected Republican Party maps that contained two majority-minority districts because they created too many districts in which a majority of the residents were registered Republicans. 861 F. Supp., at 460. If race rather than incumbency protection had been the dominant consideration, it seems highly unlikely that the Democrats would have drawn this bizarre district rather than accepting more compact options that were clearly avail- able. If race, rather than politics, had been the "predomi- nant" consideration for the Democrats, they could have ac- cepted the Republican Plan, thereby satisfying the Attorney General and avoiding any significant risk of liability as well as the attack mounted by the plaintiffs in this case. Instead, as the detailed findings of the District Court demonstrate, the legislature deliberately crafted a districting plan that is in any way impaired by virtue of the fact that their State is not even contiguous. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 938 SHAW v. HUNT Stevens, J., dissenting would accommodate the needs of Democratic incumbents. Id., at 466­467.14 If the Democrats remain in control of the districting proc- ess after the remand in this case, it will be interesting to see whether they will be willing to sacrifice one or more Democratic-majority districts in order to create at least two districts with effective minority voting majorities. My re- view of the history revealed in the findings of the District Court persuades me that political considerations will prob- ably take priority over racial considerations in the immedi- ate future, just as they surely did during the process of re- jecting the Republican Plan and ultimately adopting the plan challenged in this case.15 A deliberate effort to consolidate urban voters in one dis- trict and rural voters in another also explains District 12's highly irregular shape. Before District 12 had been drawn, members of the public as well as legislators had urged that "the observance of distinctive urban and rural communities of interest should be a prime consideration in the general redistricting process." Id., at 466. As a result, the legis- lature was naturally attracted to a plan that, although less than esthetically pleasing, included both District 12, which links the State's major urban centers, and District 1, which has a population that predominantly lives in cities with popu- lations of less than 20,000. Id., at 467. 14 It is ironic that despite the clear indications that party politics explain the district's odd shape, the Court affirmed the District Court's dismissal of the plaintiffs' partisan gerrymandering claim. See Pope v. Blue, 506 U. S. 801 (1992). 15 Interestingly, the Justice Department concluded that it was the State's impermissible desire to favor white incumbents over African-American voters that explained North Carolina's refusal to create a second district and thus gave rise to a violation of the purpose prong of § 5 of the Voting Rights Act. See Shaw I, 509 U. S. 630, 635 (1993). Of course, the white plaintiffs before us here have no standing to object to District 12 on simi- lar grounds. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 939 Stevens, J., dissenting Moreover, the record reveals that District 12's lines were drawn in order to unite an African-American community whose political tradition was quite distinct from the one that defines African-American voters in the Coastal Plain, which District 1 surrounds. Ibid. Indeed, two other majority- minority-district plans with less torturous boundaries were thought unsatisfactory precisely because they did not unite communities of interest. 861 F. Supp., at 465­466; Tr. 481. Significantly, the irregular contours of District 12 track the State's main interstate highway and are located entirely within the culturally distinct Piedmont Crescent region. 861 F. Supp., at 466. Clearly, then, District 12 was drawn around a community "defined by actual shared interests" rather than racial demography. Miller v. Johnson, 515 U. S., at 916; see also Shaw I, 509 U. S., at 647­648; DeWitt v. Wilson, 856 F. Supp., at 1412, 1413­1414 (recognizing that districts were "functionally" compact because they sur- rounded "communit[ies] of interest"). In light of the majority's decision not to remand for proper application of the Miller test, I do not understand how it can condemn the drawing of District 12 given these two race- neutral justifications for its shape. To be sure, in choosing a district that snakes rather than sits, North Carolina did not put a premium on geographical compactness. But I do not understand why that should matter in light of the evi- dence that shows that other race-neutral districting con- siderations were determinative.16 16 Although the majority asserts that North Carolina "subordinated" traditional districting principles to racial concerns because "[r]ace was the criterion that, in the State's view, could not be compromised," ante, at 907, no evidence suggests that North Carolina would have sacrificed traditional districting principles in order to draw a second majority- minority district. Rather, the record reveals that the State chose District 12 over other options so that its plan would remain faithful to traditional, race-neutral districting criteria. If strict scrutiny applies even when a State draws a majority-minority district that respects traditional district- 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 940 SHAW v. HUNT Stevens, J., dissenting III As the foregoing discussion illustrates, legislative deci- sions are often the product of compromise and mixed mo- tives. For that reason, I have always been skeptical about the value of motivational analysis as a basis for constitutional adjudication. See, e. g., Washington v. Davis, 426 U. S. 229, 253­254 (1976) (Stevens, J., concurring). I am particularly skeptical of such an inquiry in a case of this type, as mixed motivations would seem to be endemic to the endeavor of political districting. See, e. g, Bush, post, at 959 ("The pres- ent suit is a mixed motive case"). The majority's analysis of the "compelling interest" issue nicely demonstrates the problem with parsing legislative motive in this context. The majority posits that the legis- lature's compelling interest in drawing District 12 was its desire to avoid liability under § 2 of the Voting Rights Act. Yet it addresses the question whether North Carolina had a compelling interest only because it first concludes that a racial purpose dominated the State's districting effort. It seems to me that if the State's true purpose were to serve its compelling interest in staving off costly litigation by complying with federal law, then it cannot be correct to say that a racially discriminatory purpose controlled its line-drawing. A more accurate conclusion would be that the State took race into account only to the extent necessary to meet the requirements of a carefully thought out federal statute. See Voinovich v. Quilter, 507 U. S., at 159. The majority's implicit equation of the intentional consideration ing principles, then I do not see how a State can ever create a majority- minority district in order to fulfill its obligations under the Voting Rights Act without inviting constitutional suspicion. I had thought that the "demanding" standard Miller established, Miller v. Johnson, 515 U. S., at 928 (O'Connor, J., concurring), as well as our summary affirmance in DeWitt, reflected our determination that States should not be so constrained. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 941 Stevens, J., dissenting of race in order to comply with the Voting Rights Act with intentional racial discrimination reveals the inadequacy of the framework it adopts for considering the constitutionality of race-based districting. However, even if I were to assume that strict scrutiny applies, and thus that it makes sense to consider the ques- tion, I would not share the majority's hesitancy in concluding that North Carolina had a "compelling interest" in drawing District 12. In my view, the record identifies not merely one, but at least three acceptable reasons that may have motivated legislators to favor the creation of two such dis- tricts. Those three reasons easily satisfy the judicially cre- ated requirement that the state legislature's decision be sup- ported by a "compelling state interest," particularly in a case in which the alleged injury to the disadvantaged class-i. e., the majority of voters who are white-is so tenuous. First, some legislators felt that the sorry history of race relations in North Carolina in past decades was a sufficient reason for making it easier for more black leaders to partici- pate in the legislative process and to represent the State in the Congress of the United States. 861 F. Supp., at 462­463. Even if that history does not provide the kind of precise guidance that will justify certain specific affirmative-action programs in particular industries, see ante, at 909­910, it surely provides an adequate basis for a decision to facilitate the election of representatives of the previously disadvan- taged minority. As a class, state legislators are far more likely to be famil- iar with the role that race plays in electoral politics than they are with the role that it plays in hiring decisions within discrete industries. Moreover, given the North Carolina Legislature's own recent experience with voting rights liti- gation, see Thornburg v. Gingles, 478 U. S. 30 (1986), as well as the fact that 40 of the State's districts are so-called cov- ered jurisdictions which the Attorney General directly moni- 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 942 SHAW v. HUNT Stevens, J., dissenting tors as a result of prior discriminatory practices, see 42 U. S. C. § 1973c (1988 ed.), there is less reason to assume that the state legislative judgments under review here are based on unwarranted generalizations than may be true in other contexts. Thus, even if a desire to correct past discrimina- tion did not itself drive the legislative decision to draw two majority-minority districts, it plainly constituted a legiti- mate and significant additional factor supporting the decision to do so. 861 F. Supp., at 472­473. Second, regardless of whether § 5 of the Act was actually violated, I believe the State's interest in avoiding the litiga- tion that would have been necessary to overcome the Attor- ney General's objection to the original plan provides an acceptable reason for creating a second majority-minority district. It is entirely proper for a State whose past prac- tices have subjected it to the preclearance obligation set forth in § 5 to presume that the Attorney General's construc- tion of the Act is correct, and to take corrective action rather than challenging him 17 in Court. Moreover, even if the State's interest in avoiding a court challenge that might have succeeded does not constitute a sufficient justification for its decision to draw a majority- minority district, the State plainly had an interest in comply- ing with a finding by the Attorney General that it reasonably believed could not have been successfully challenged in court. The majority disagrees, relying on our analysis in Miller v. Johnson, 515 U. S., at 920­925. That reliance is misplaced. In Miller, the Court concluded that Georgia had simply acceded to the Attorney General's unreasonable construction of § 5 without performing any independent assessment of its validity. Ibid. By contrast, the District Court here found as a factual matter that the legislature's independent assess- 17 Although Attorney General Reno has endorsed the position taken by the Republican administration in 1991, it was her male predecessor who refused to preclear the State's original plan. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 943 Stevens, J., dissenting ment of the reasons for the Attorney General's denial of pre- clearance led it to the reasonable conclusion that its 11-white district plan would violate the purpose prong of § 5. 861 F. Supp., at 474. As a result, I do not accept the Court's conclusion that it was unreasonable for the State to believe that its decision to draw 1 majority-minority district out of 12 would have been subject to a successful attack under the purpose prong of § 5. Ante, at 911­913. I acknowledge that when North Carolina sought preclear- ance it asserted nondiscriminatory reasons for deciding not to draw a second majority-minority district. See 861 F. Supp., at 480, n. 9 (Vorhees, C. J., dissenting). On careful reflection, however, the legislature concluded that those reasons would not likely suffice in a federal action to chal- lenge the Attorney General's ruling. The District Court found that conclusion to be reasonable. Id., at 474. I am mystified as to why this finding does not deserve our ac- ceptance. Nor do I understand the Court's willingness to credit the State's declarations of nondiscriminatory purpose in this context, ante, at 912­913, in light of its unwillingness to accept any of North Carolina's race-neutral explanations for its decision to draw District 12, ante, at 905­906. Third, regardless of the possible outcome of litigation al- leging that § 2 of the Voting Rights Act would be violated by a plan that ensured the election of white legislators in 11 of the State's 12 congressional districts, the interest in avoiding the expense and unpleasantness of such litiga- tion was certainly legitimate and substantial. That the legislature reasonably feared the possibility of a successful § 2 challenge cannot be credibly denied.18 18 While the majority is surely correct in stating that the threat of a lawsuit, however unlikely to succeed, does not constitute a compelling in- terest, ante, at 908­909, n. 4, it does not follow that a State has no compel- ling interest in avoiding litigation over a substantial challenge. Here, of course, the District Court found that North Carolina premised its decision to draw a second majority-minority district on its reasonable conclusion 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 944 SHAW v. HUNT Stevens, J., dissenting In the course of the redistricting debate, numerous maps had been presented showing that blacks could constitute more than 50 percent of the population in two districts. 861 F. Supp., at 460­461, 474. The District Court found that these plans had demonstrated that "the state's African- American population was sufficiently large and geographi- cally compact to constitute a majority in two congressional districts." Id., at 464. Moreover, the Attorney General denied preclearance on the ground that North Carolina could have created a sec- ond majority-minority district that was, under any reason- able standard, geographically compact. Id., at 461­462; Shaw I, 509 U. S., at 635. Maps prepared by the plaintiff- intervenors for this litigation conclusively demonstrate that two compact, majority-minority districts could indeed have been drawn. 861 F. Supp., at 464­465; Plaintiff-Intervenors' Exh. 301, A2­A3. Even if many of the maps proposing two majority- African-American districts were not particularly compact, the legislature reasonably concluded that a federal court might have determined that some of them could have pro- vided the basis for a viable vote dilution suit pursuant to Thornburg v. Gingles, 478 U. S., at 50­51. 861 F. Supp., at 474. That conclusion is particularly reasonable in light of the fact that Gingles was a case fresh in the minds of many of North Carolina's state legislators, id., at 463. There, the State challenged the plaintiffs' § 2 claim by pointing to the oddly configured lines that defined their proposed majority- minority districts. See Gingles v. Edmisten, 590 F. Supp. 345, 373 (EDNC 1984). As we know, North Carolina's de- fense to § 2 liability proved unsuccessful in that instance, even though the District Court acknowledged that the "single-member district specifically suggested by the plain- that it would otherwise be subject to a successful § 2 challenge, not a "meritless" one. Ibid. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 945 Stevens, J., dissenting tiffs as a viable one is obviously not a model of aesthetic tidiness." Id., at 374.19 Finally, even if the record shows that African-American voters would not have composed more than 50 percent of the population in any plan containing two compact, majority- minority districts, the record reveals that it would have been possible to have drawn a map containing one compact district in which African-Americans would have composed more than 50 percent of the population and another compact district in which African-Americans, by reason of the large presence of Native Americans, would have by far constituted the largest racial group. Plaintiff-Intervenors' Exh. 301, A2­ A3. Given our recent emphasis on considering the totality of the circumstances in § 2 cases, we are in no position to rebuke a State for concluding that a 40-plus percent African- American district could provide a defense to a viable Gingles challenge as surely as could one with a 50.1 percent African- American population. See Johnson v. De Grandy, 512 U. S. 997, 1009­1012 (1994); Voinovich v. Quilter, 507 U. S. 146 (1993); Rural West Tennessee African-American Affairs Council, Inc. v. McWherter, 877 F. Supp. 1096 (WD Tenn.), aff'd, 516 U. S. 801 (1995).20 19 Interestingly, although this Court in Thornburg v. Gingles held that § 2 plaintiffs must demonstrate that they live in "compact" majority- minority districts, we affirmed the District Court which had found that the plaintiffs' proposed districts were contiguous but not compact. 478 U. S., at 38. Arguably, therefore, the State could have reasonably con- cluded that the maps proposing District 12 would have themselves pro- vided the foundation for a viable § 2 suit. For a discussion of how compact "compact" districts must be, see Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv. Civ. Rights-Civ. Lib. L. Rev. 173, 199­213 (1989). See also Dillard v. Baldwin County Bd. of Ed., 686 F. Supp. 1459, 1465­1466 (MD Ala. 1988); Houston v. Lafayette County, Miss., 56 F. 3d 606, 611 (CA5 1995). 20 Moreover, Mr. Cohen, the State's chief mapmaker, testified at trial that in statewide elections, Native Americans and African-Americans in the southeastern portion of North Carolina had voted for the same candi- dates. Tr. 411­412. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 946 SHAW v. HUNT Stevens, J., dissenting IV Although the Court assumes that North Carolina had a compelling interest in avoiding liability under § 2, ante, at 916, it avoids conclusively resolving that question be- cause it holds that District 12 was not a "narrowly tailored" means of achieving that end. The majority reaches this conclusion by determining that District 12 did not "rem- edy" any potential violation of § 2 that may have occurred. Ibid. In my judgment, if a State's new plan successfully avoids the potential litigation entirely, there is no reason why it must also take the form of a "remedy" for an unproven vio- lation. Thus, the fact that no § 2 violation has been proved in the territory that constitutes District 12 does not show that the district fails to serve a compelling state interest. It shows only that a federal court, which is constrained by Article III, would not have had the power to require North Carolina to draw that district. It is axiomatic that a State should have more authority to institute a districting plan than would a federal court. Voinovich v. Quilter, 507 U. S., at 156­157. That District 12 will protect North Carolina from liability seems clear. The record gives no indication that any of the potential § 2 claimants is interested in challenging the plan that contains District 12. Moreover, as a legal matter, North Carolina is in a stronger position to defend against a § 2 lawsuit with District 12 than without it. Johnson v. De Grandy expressly states that, at least in the context of single-member districting plans, a plaintiff cannot make out a prima facie case of vote dilution under § 2 unless he can demonstrate that his proposed map contains more majority-minority districts than the State's. 512 U. S., at 1008. By creating a plan with two majority-minority dis- 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 947 Stevens, J., dissenting tricts here, the State would seem to have precluded potential litigants from satisfying that precondition.21 In addition, satisfaction of the so-called Gingles precondi- tions does not entitle an individual minority voter to inclu- sion in a majority-minority district. A court may conclude that a State must create such a district only after it considers the totality of the circumstances. A court would be remiss if it failed to take into account that the State had drawn majority-minority districts proportional to its minority popu- lation which include portions of the very minority community in which an individual minority plaintiff resides. Indeed, our recent decisions compel courts to perform just such a calculus. See Johnson v. De Grandy, 512 U. S., at 1012­ 1016; Voinovich v. Quilter, 507 U. S. 146 (1993); see also Afri- can American Voting Rights Legal Defense Fund, Inc. v. Villa, 54 F. 3d 1345, 1355­1357 (CA8 1995). 21 The majority's assertion that De Grandy only requires a plaintiff to show that more "reasonably compact" majority-minority districts could have been drawn would seem to expand dramatically a State's potential liability under § 2. Ante, at 916, n. 8. I would have thought that a State that had drawn three majority-minority districts, one of which was "rea- sonably compact" and two of which straggled in order to preserve certain distinctive communities of interest, would at the very least be immune to a challenge by a single African-American plaintiff bearing a map propos- ing to draw but two compact majority-minority districts. The Court's ex- pansive notion of § 2 liability, combined with its apparent eagerness to subject all legislative attempts to comply with that Act to strict scrutiny, will place many States in the untenable position of facing substantial liti- gation no matter how they draw their maps. See Miller v. Johnson, 515 U. S., at 949 (Ginsburg, J., dissenting). Of course, a State that unfairly "packs" African-American voters into a limited number of districts may be subject to a § 2 challenge on the ground that it failed to create so-called "influence" districts, and perhaps the ma- jority means to endorse that proposition as well. I note here, however, that there is no indication that such a challenge could be successfully brought against North Carolina's two majority-minority district plan, which creates districts with only bare African-American majorities. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 948 SHAW v. HUNT Stevens, J., dissenting Finally, North Carolina's chosen means of avoiding liability will impose none of the burdens on third parties that have made the Court wary of voluntary, race-based state action in the past. No white employees or applicants stand to lose jobs on account of their race as a result of North Carolina's actions. In fact, no white voters risk having their votes un- lawfully diluted. At most, North Carolina's chosen means will require that some people of both races will be placed in districts other than those to which they would have other- wise been assigned. Even assuming that "burden" is more onerous when it results from racial considerations, it does not rise to a level of injury that justifies a federal court in- truding on the State's discretion to formulate a plan that complies with the Voting Rights Act. In fact, to the extent that plaintiffs in these cases premise their standing on the "representational" harms that they suffer, see supra, at 927­928, a State's decision to locate a majority-minority district outside the area that suffers from acute, racial bloc voting would seem to diminish the likeli- hood that representatives in majority-minority districts will serve only the interests of minority voters. After all, a representative of a majority-minority district that does not suffer from racial bloc voting cannot safely ignore the inter- ests of voters of either race. In this respect, the majority's narrow tailoring requirement, by forcing States to remedy perceived § 2 violations only by drawing the district around the area in which the Gingles preconditions have been satis- fied, has the perverse consequence of requiring States to inflict the very harm that supposedly renders racial gerry- mandering challenges constitutionally cognizable.22 22 The Court's strict analysis in this case is in some tension with the more reasonable approach endorsed by Justice O'Connor this same day. On her view, state legislatures seeking to comply with the Voting Rights Act clearly possess more freedom to draw majority-minority districts than do federal courts attempting to enforce it. Bush v. Vera, post, at 994 (O'Connor, J., concurring). 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 949 Stevens, J., dissenting Although I do not believe a judicial inquiry into "narrow tailoring" is either necessary or appropriate in these cases, the foregoing discussion reveals that the "narrow tailoring" requirement that the Court has fashioned is a pure judicial invention that unfairly deprives the legislature of a sover- eign State of its traditional discretion in determining the boundaries of its electoral districts.23 The Court's analysis gives rise to the unfortunate suggestion that a State that fears a § 2 lawsuit must draw the precise district that it be- lieves a federal court would have the power to impose. Such a proposition confounds basic principles of federalism, and forces States to imagine the legally "correct" outcome of a lawsuit that has not even been filed. The proposition is also at odds with the course of the litiga- tion that led to Gingles itself. In that case, the plaintiffs proposed a number of oddly configured majority-minority districts to prove their vote dilution claim. In implement- ing a remedy for the § 2 violation, the federal court wisely permitted North Carolina to propose its own remedial dis- tricts, many of which were highly irregular in dimension. Indeed, so peculiar were some of the shapes concocted by the State that the Gingles plaintiffs challenged them on the grounds that they constituted racial gerrymanders which failed to remedy the very violations that had given rise to the need for their creation, and that they reflected only grudging responses designed to protect incumbent office- holders. Gingles v. Edmisten, 590 F. Supp., at 381. Although the District Court in Gingles acknowledged that the State's plan was not the one that it would have imple- mented, it nonetheless concluded that the plan constituted a reasonable exercise of state legislative judgment. "[A] state legislature's primary jurisdiction for legislative apportion- 23 That judicial creativity rather than constitutional principle defines the narrowing tailoring requirement in this area of our law is clear from Bush's quite different analysis of the same question. See Bush, post, at 977. 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT 950 SHAW v. HUNT Stevens, J., dissenting ment and redistricting must include the right, free of judicial rejection, to implement state policies that may fail to remedy to the fullest extent possible the voting rights violations originally found." Id., at 382. In dramatic contrast, the Court today rejects North Caro- lina's plan because it does not provide the precise remedy that might have been ordered by a federal court, even though it satisfies potential plaintiffs, furthers such race- neutral legislative ends as incumbency protection and the preservation of distinct communities of interest, and es- sentially serves to insulate the State from a successful stat- utory challenge. There is no small irony in the fact that the Court's decision to intrude into the State's districting process comes in response to a lawsuit brought on behalf of white voters who have suffered no history of exclusion from North Carolina's political process, and whose only claims of harm are at best rooted in speculative and stereo- typical assumptions about the kind of representation they are likely to receive from the candidates that their neighbors have chosen. V It is, of course, irrelevant whether we, as judges, deem it wise policy to create majority-minority districts as a means of assuring fair and effective representation to mi- nority voters. We have a duty to respect Congress' consid- ered judgment that such a policy may serve to effectuate the ends of the constitutional Amendment that it is charged with enforcing. We should also respect North Carolina's conscientious effort to conform to that congressional de- termination. Absent some demonstration that voters are being denied fair and effective representation as a result of their race, I find no basis for this Court's intervention into a process by which federal and state actors, both black and white, are jointly attempting to resolve difficult ques- tions of politics and race that have long plagued North Carolina. Nor do I see how our constitutional tradition can 517US3$67i 02-07-99 19:56:41 PAGES OPINPGT Cite as: 517 U. S. 899 (1996) 951 Souter, J., dissenting countenance the suggestion that a State may draw unsightly lines to favor farmers or city dwellers, but not to create districts that benefit the very group whose history inspired the Amendment that the Voting Rights Act was designed to implement. Because I have no hesitation in concluding that North Carolina's decision to adopt a plan in which white voters were in the majority in only 10 of the State's 12 districts did not violate the Equal Protection Clause, I respectfully dissent. Justice Souter, with whom Justice Ginsburg and Justice Breyer join, dissenting. My views on this case are substantially expressed in my dissent to Bush v. Vera, post, p. 952. 517us3$68z 02-19-99 11:09:44 PAGES OPINPGT 952 OCTOBER TERM, 1995 Syllabus BUSH, GOVERNOR OF TEXAS, et al. v. VERA et al. appeal from the district court for the southern district of texas No. 94­805. Argued December 5, 1995-Decided June 13, 1996* Because the 1990 census revealed a population increase entitling Texas to three additional congressional seats, and in an attempt to comply with the Voting Rights Act of 1965 (VRA), the Texas Legislature pro- mulgated a redistricting plan that, among other things, created District 30 as a new majority-African-American district in Dallas County and District 29 as a new majority-Hispanic district in Harris County, and reconfigured District 18, which is adjacent to District 29, as a majority- African-American district. After the Department of Justice precleared the plan under VRA § 5, the plaintiffs, six Texas voters, filed this chal- lenge alleging that 24 of the State's 30 congressional districts consti- tute racial gerrymanders in violation of the Fourteenth Amendment. The three-judge District Court held Districts 18, 29, and 30 unconsti- tutional. The Governor of Texas, private intervenors, and the United States (as intervenor) appeal. Held: The judgment is affirmed. 861 F. Supp. 1304, affirmed. Justice O'Connor, joined by The Chief Justice and Justice Kennedy, concluded: 1. Plaintiff Chen, who resides in District 25 and has not alleged any specific facts showing that he personally has been subjected to any racial classification, lacks standing under United States v. Hays, 515 U. S. 737, 744­745. But plaintiffs Blum and Powers, who reside in District 18, plaintiffs Thomas and Vera, who reside in District 29, and plaintiff Orcutt, who resides in District 30, have standing to challenge Districts 18, 29, and 30. See, e. g., ibid. Pp. 957­958. 2. Districts 18, 29, and 30 are subject to strict scrutiny under this Court's precedents. Pp. 958­976. (a) Strict scrutiny applies where race was "the predominant factor" motivating the drawing of district lines, see, e. g., Miller v. Johnson, 515 U. S. 900, 916 (emphasis added), and traditional, race- neutral districting principles were subordinated to race, see ibid. This is a mixed motive suit, and a careful review is therefore necessary to *Together with No. 94­806, Lawson et al. v. Vera et al., and No. 94­988, United States v. Vera et al., also on appeal from the same court. 517us3$68z 02-19-99 11:09:44 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 953 Syllabus determine whether the districts at issue are subject to such scrutiny. Findings that Texas substantially neglected traditional districting criteria such as compactness, that it was committed from the outset to creating majority-minority districts, and that it manipulated district lines to exploit unprecedentedly detailed racial data, taken together, weigh in favor of the application of strict scrutiny. However, because factors other than race, particularly incumbency protection, clearly in- fluenced the legislature, each of the challenged districts must be scruti- nized to determine whether the District Court's conclusion that race predominated can be sustained. Pp. 958­965. (b) District 30 is subject to strict scrutiny. Appellants do not deny that the district shows substantial disregard for the traditional district- ing principles of compactness and regularity, or that the redistricters pursued unwaveringly the objective of creating a majority-African- American district. Their argument that the district's bizarre shape is explained by efforts to unite communities of interest, as manifested by the district's consistently urban character and its shared media sources and major transportation lines to Dallas, must be rejected. The record contains no basis for displacing the District Court's conclusion that race predominated over the latter factors, particularly in light of the court's findings that the State's supporting data were largely unavailable to the legislature before the district was created and that the factors do not differentiate the district from surrounding areas with the same degree of correlation to district lines that racial data exhibit. Appel- lants' more substantial claim that incumbency protection rivaled race in determining the district's shape is also unavailing. The evidence amply supports the District Court's conclusions that racially motivated gerrymandering had a qualitatively greater influence on the drawing of district lines than politically motivated gerrymandering, which is not subject to strict scrutiny, see Davis v. Bandemer, 478 U. S. 109, 132 (White, J., plurality opinion); and that political gerrymandering was accomplished in large part by the use of race as a proxy for political characteristics, which is subject to such scrutiny, cf. Powers v. Ohio, 499 U. S. 400, 410. Pp. 965­973. (c) Interlocking Districts 18 and 29 are also subject to strict scru- tiny. Those districts' shapes are bizarre, and their utter disregard of city limits, local election precincts, and voter tabulation district lines has caused a severe disruption of traditional forms of political activ- ity and created administrative headaches for local election officials. Although appellants adduced evidence that incumbency protection played a role in determining the bizarre district lines, the District Court's conclusion that the districts' shapes are unexplainable on grounds other than race and, as such, are the product of presumptively 517us3$68z 02-19-99 11:09:44 PAGES OPINPGT 954 BUSH v. VERA Syllabus unconstitutional racial gerrymandering is inescapably corroborated by the evidence. Pp. 973­976. 3. Districts 18, 29, and 30 are not narrowly tailored to serve a compelling state interest. Pp. 976­983. (a) Creation of the three districts was not justified by a compel- ling state interest in complying with the "results" test of VRA § 2(b). It may be assumed without deciding that such compliance can be a com- pelling state interest. See, e. g., Shaw v. Hunt, ante, at 915 (Shaw II). States attempting to comply with § 2 retain discretion to apply tra- ditional districting principles and are entitled to a limited degree of leeway. But a district drawn in order to satisfy § 2 must not subordi- nate traditional districting principles to race substantially more than is reasonably necessary. The districts at issue fail this test, since all three are bizarrely shaped and far from compact, and those character- istics are predominantly attributable to gerrymandering that was ra- cially motivated and/or achieved by the use of race as a proxy. Appel- lants Lawson et al. misinterpret Miller, supra, at 913, when they argue that bizarre shaping and noncompactness go only to motive and are ir- relevant to the narrow tailoring inquiry. Also unavailing is the United States' contention that insofar as bizarreness and noncompactness are necessary to achieve the State's compelling interest in compliance with § 2 while simultaneously achieving other legitimate redistricting goals, the narrow tailoring requirement is satisfied. The bizarre shaping and noncompactness of the districts in question were predominantly attrib- utable to racial, not political, manipulation, while the Government's ar- gument addresses the case of an otherwise compact majority-minority district that is misshapen by predominantly nonracial, political manipu- lation. Pp. 976­981. (b) The district lines at issue are not justified by a compelling state interest in ameliorating the effects of racially polarized voting attrib- utable to Texas' long history of discrimination against minorities in electoral processes. Among the conditions that must be satisfied to render an interest in remedying discrimination compelling is the re- quirement that the discrimination be specific and "identified." Shaw II, ante, at 910. Here, the only current problem that appellants cite as in need of remediation is alleged vote dilution as a consequence of racial bloc voting, the same concern that underlies their VRA § 2 com- pliance defense. Once the correct standard is applied, the fact that these districts are not narrowly tailored to comply with § 2 forecloses this line of defense. Pp. 981­982. (c) Creation of District 18 (only) was not justified by a compel- ling state interest in complying with VRA § 5, which seeks to prevent voting-procedure changes leading to a retrogression in the position of 517us3$68z 02-19-99 11:09:44 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 955 Syllabus racial minorities with respect to their effective exercise of the elec- toral franchise. See, e. g., Miller, 515 U. S., at 926. The problem with appellants' contention that this "nonretrogression" principle applies because Harris County previously contained a congressional district in which African-American voters always succeeded in selecting African- American representatives is that it seeks to justify not maintenance, but substantial augmentation, of the African-American population percentage, which has grown from 40.8% in the previous district to 50.9% in District 18. Nonretrogression is not a license for the State to do whatever it deems necessary to ensure continued electoral success; it merely mandates that the minority's opportunity to elect representa- tives of its choice not be diminished, directly or indirectly, by the State's actions. District 18 is not narrowly tailored to the avoidance of § 5 liability. See Shaw v. Reno, 509 U. S. 630, 655. Pp. 982­983. 4. Various of the dissents' arguments, none of which address the spe- cifics of this suit, and which have been rebutted in other decisions, must be rejected. Pp. 983­986. Justice Thomas, joined by Justice Scalia, concluded that appli- cation of strict scrutiny in this suit was never a close question, since this Court's decisions have effectively resolved that the intentional creation of majority-minority districts, by itself, is sufficient to invoke such scrutiny. See, e. g., Adarand Constructors, Inc. v. Pen a, 515 U. S. 200, 227 (strict scrutiny applies to all government classifications based on race); Miller v. Johnson, 515 U. S. 900, 918­919 (Georgia's concession that it intentionally created majority-minority districts was sufficient to show that race was a predominant, motivating factor in its redistrict- ing). DeWitt v. Wilson, 515 U. S. 1170, distinguished. Application of strict scrutiny is required here because Texas has readily admitted that it intentionally created majority-minority districts and that those districts would not have existed but for its affirmative use of racial demographics. Assuming that the State has asserted a compelling state interest, its redistricting attempts were not narrowly tailored to achieve that interest. Pp. 999­1003. O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Kennedy, J., joined. O'Con- nor, J., also filed a separate concurring opinion, post, p. 990. Kennedy, J., filed a concurring opinion, post, p. 996. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined, post, p. 999. Ste- vens, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 1003. Souter, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 1045. 517us3$68z 02-19-99 11:09:44 PAGES OPINPGT 956 BUSH v. VERA Opinion of O'Connor, J. Javier Aguilar, Special Assistant Attorney General of Texas, argued the cause for appellants in No. 94­805. With him on the briefs were Dan Morales, Attorney General, Jorge Vega, First Assistant Attorney General, Richard E. Gray III, and Roger Moore. Deputy Solicitor General Bender argued the cause for the United States in No. 94­988. With him on the briefs were Solicitor General Days, Assistant Attorney General Patrick, Irving L. Gornstein, and Steven H. Rosenbaum. Penda D. Hair argued the cause and filed briefs for appel- lants in No. 94­806. With her on the briefs were Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, Antonia Hernandez, Anthony E. Chavez, Carmen Rumbaut, and Lawrence Boz. Daniel E. Troy argued the cause for appellees in all cases. With him on the brief were Paul Loy Hurd, Bert W. Rein, and Michael E. Toner. Justice O'Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice Kennedy join. This is the latest in a series of appeals involving racial gerrymandering challenges to state redistricting efforts in the wake of the 1990 census. See Shaw v. Hunt, ante, p. 899 (Shaw II); United States v. Hays, 515 U. S. 737 (1995); Miller v. Johnson, 515 U. S. 900 (1995); Shaw v. Reno, 509 U. S. 630 (1993) (Shaw I). That census revealed a population in- Paul M. Smith, Donald B. Verrilli, Jr., and J. Gerald Hebert filed a brief for the Democratic National Committee et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Pacific Legal Foundation by Anthony T. Caso and Deborah J. La Fetra; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp. Briefs of amicus curiae were filed for the Institute for Justice by William H. Mellor III, Clint Bolick, and Scott G. Bullock; and for A. J. Pate by William C. Owens, Jr. 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 957 Opinion of O'Connor, J. crease, largely in urban minority populations, that entitled Texas to three additional congressional seats. In response, and with a view to complying with the Voting Rights Act of 1965 (VRA), 79 Stat. 437, as amended, 42 U. S. C. § 1973 et seq., the Texas Legislature promulgated a redistricting plan that, among other things, created District 30, a new majority-African-American district in Dallas County; cre- ated District 29, a new majority-Hispanic district in and around Houston in Harris County; and reconfigured District 18, which is adjacent to District 29, to make it a majority- African-American district. The Department of Justice pre- cleared that plan under VRA § 5 in 1991, and it was used in the 1992 congressional elections. The plaintiffs, six Texas voters, challenged the plan, alleg- ing that 24 of Texas' 30 congressional districts constitute racial gerrymanders in violation of the Fourteenth Amend- ment. The three-judge United States District Court for the Southern District of Texas held Districts 18, 29, and 30 un- constitutional. Vera v. Richards, 861 F. Supp. 1304 (1994). The Governor of Texas, private intervenors, and the United States (as intervenor) now appeal. We noted probable juris- diction. 515 U. S. 1172 (1995). Finding that, under this Court's decisions in Shaw I and Miller, the district lines at issue are subject to strict scrutiny, and that they are not narrowly tailored to serve a compelling state interest, we affirm. I As a preliminary matter, the State and private appellants contest the plaintiffs' standing to challenge these districts. Plaintiff Chen resides in Texas congressional District 25, and has not alleged any specific facts showing that he personally has been subjected to any racial classification. Under our decision in Hays, he lacks standing. See Hays, supra, at 744­745. But plaintiffs Blum and Powers are residents of District 18, plaintiffs Thomas and Vera are residents of Dis- trict 29, and plaintiff Orcutt is a resident of District 30. We 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT 958 BUSH v. VERA Opinion of O'Connor, J. stated in Hays that "[w]here a plaintiff resides in a racially gerrymandered district, . . . the plaintiff has been denied equal treatment because of the legislature's reliance on racial criteria, and therefore has standing to challenge the legis- lature's action." Ibid.; accord, Miller, supra, at 910­911. Under this rule, these plaintiffs have standing to challenge Districts 18, 29, and 30. II We must now determine whether those districts are sub- ject to strict scrutiny. Our precedents have used a variety of formulations to describe the threshold for the application of strict scrutiny. Strict scrutiny applies where "redistrict- ing legislation . . . is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles," Shaw I, supra, at 642, or where "race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines," Miller, 515 U. S., at 913, and "the legisla- ture subordinated traditional race-neutral districting princi- ples . . . to racial considerations," id., at 916. See also id., at 928 (O'Connor, J., concurring) (strict scrutiny only ap- plies where "the State has relied on race in substantial dis- regard of customary and traditional districting practices"). Strict scrutiny does not apply merely because redistricting is performed with consciousness of race. See Shaw I, supra, at 646. Nor does it apply to all cases of intentional creation of majority-minority districts. See DeWitt v. Wilson, 856 F. Supp. 1409 (ED Cal. 1994) (strict scrutiny did not apply to an intentionally created compact majority-minority district), summarily aff'd, 515 U. S. 1170 (1995); cf. Shaw I, supra, at 649 (reserving this question). Electoral district lines are "facially race neutral," so a more searching inquiry is neces- sary before strict scrutiny can be found applicable in redis- tricting cases than in cases of "classifications based explicitly on race." See Adarand Constructors, Inc. v. Pen a, 515 U. S. 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 959 Opinion of O'Connor, J. 200, 213 (1995); cf. post, at 999­1000, 1002­1003 (Thomas, J., concurring in judgment) (assimilating our redistricting cases to Adarand). For strict scrutiny to apply, the plaintiffs must prove that other, legitimate districting principles were "subordinated" to race. Miller, 515 U. S., at 916. By that, we mean that race must be "the predominant factor motivat- ing the legislature's [redistricting] decision." Ibid. (emphasis added). We thus differ from Justice Thomas, who would apparently hold that it suffices that racial considerations be a motivation for the drawing of a majority-minority district. See post, at 1002. The present suit is a mixed motive suit. The appellants concede that one of Texas' goals in creating the three dis- tricts at issue was to produce majority-minority districts, but they also cite evidence that other goals, particularly incum- bency protection (including protection of "functional incum- bents," i. e., sitting members of the Texas Legislature who had declared an intention to run for open congressional seats), also played a role in the drawing of the district lines. The record does not reflect a history of " `purely race-based' " districting revisions. Cf. Miller, supra, at 918 (emphasis added). A careful review is, therefore, necessary to deter- mine whether these districts are subject to strict scrutiny. But review of the District Court's findings of primary fact and the record convinces us that the District Court's deter- mination that race was the "predominant factor" in the drawing of each of the districts must be sustained. We begin with general findings and evidence regarding the redistricting plan's respect for traditional districting princi- ples, the legislators' expressed motivations, and the methods used in the redistricting process. The District Court began its analysis by rejecting the factual basis for appellants' claim that Texas' challenged "districts cannot be unconstitu- tionally bizarre in shape because Texas does not have and never has used traditional redistricting principles such as natural geographical boundaries, contiguity, compactness, 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT 960 BUSH v. VERA Opinion of O'Connor, J. and conformity to political subdivisions." 861 F. Supp., at 1333. The court instead found that "generally, Texas has not intentionally disregarded traditional districting criteria," and that only one pre-1991 congressional district in Texas was comparable in its irregularity and noncompactness to the three challenged districts. Id., at 1334. The court also noted that "compactness as measured by an `eyeball' ap- proach was much less important," id., at 1313, n. 9, in the 1991 plan, App. 144, than in its predecessor, the 1980 Texas congressional districting plan, id., at 138, and that districts were especially irregular in shape in the Dallas and Harris County areas where the challenged districts are located, see 861 F. Supp., at 1313, n. 9. These findings comport with the conclusions of an instruc- tive study that attempted to determine the relative compact- ness of districts nationwide in objective, numerical terms. That study gave Texas' 1980 districting plan a roughly aver- age score for the compactness and regularity of its district shapes, but ranked its 1991 plan among the worst in the Nation. See Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 571­ 573, table 6 (1993). The same study ranked Districts 18, 29, and 30 among the 28 least regular congressional districts na- tionwide. See id., at 565, table 3. Our own review gives us no reason to disagree with the District Court that the districts at issue "have no integrity in terms of traditional, neutral redistricting criteria," 861 F. Supp., at 1339. The District Court also found substantial direct evidence of the legislature's racial motivations. The State's submis- sion to the Department of Justice for preclearance under VRA § 5 reports a consensus within the legislature that the three new congressional districts " `should be configured in such a way as to allow mem- bers of racial, ethnic, and language minorities to elect Congressional representatives. Accordingly, the three 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 961 Opinion of O'Connor, J. new districts include a predominantly black district drawn in the Dallas County area [District 30] and pre- dominantly Hispanic districts in the Harris County area [District 29] and in the South Texas region. In addition to creating the three new minority districts, the pro- posed Congressional redistricting plan increases the black voting strength of the current District 18 (Harris County) by increasing the population to assure that the black community may continue to elect a candidate of its choice.' " Id., at 1315 (quoting Narrative of Voting Rights Act Considerations in Affected Districts, re- printed in App. 104­105). The appellants also conceded in this litigation that the three districts at issue "were created for the purpose of enhancing the opportunity of minority voters to elect minority repre- sentatives to Congress." 861 F. Supp., at 1337. And testi- mony of individual state officials confirmed that the decision to create the districts now challenged as majority-minority districts was made at the outset of the process and never seriously questioned. The means that Texas used to make its redistricting deci- sions provides further evidence of the importance of race. The primary tool used in drawing district lines was a com- puter program called "REDAPPL." REDAPPL permitted redistricters to manipulate district lines on computer maps, on which racial and other socioeconomic data were superim- posed. At each change in configuration of the district lines being drafted, REDAPPL displayed updated racial composi- tion statistics for the district as drawn. REDAPPL con- tained racial data at the block-by-block level, whereas other data, such as party registration and past voting statistics, were only available at the level of voter tabulation districts (which approximate election precincts). The availability and use of block-by-block racial data was unprecedented; be- fore the 1990 census, data were not broken down beyond the census tract level. See App. 123. By providing uniquely 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT 962 BUSH v. VERA Opinion of O'Connor, J. detailed racial data, REDAPPL enabled districters to make more intricate refinements on the basis of race than on the basis of other demographic information. The District Court found that the districters availed themselves fully of that opportunity: "In numerous instances, the correlation between race and district boundaries is nearly perfect. . . . The bor- ders of Districts 18, 29, and 30 change from block to block, from one side of the street to the other, and tra- verse streets, bodies of water, and commercially devel- oped areas in seemingly arbitrary fashion until one real- izes that those corridors connect minority populations." 861 F. Supp., at 1336. These findings-that the State substantially neglected tra- ditional districting criteria such as compactness, that it was committed from the outset to creating majority-minority dis- tricts, and that it manipulated district lines to exploit un- precedentedly detailed racial data-together weigh in favor of the application of strict scrutiny. We do not hold that any one of these factors is independently sufficient to require strict scrutiny. The Constitution does not mandate regular- ity of district shape, see Shaw I, 509 U. S., at 647, and the neglect of traditional districting criteria is merely necessary, not sufficient. For strict scrutiny to apply, traditional dis- tricting criteria must be subordinated to race. Miller, 515 U. S., at 916. Nor, as we have emphasized, is the decision to create a majority-minority district objectionable in and of itself. The direct evidence of that decision is not, as Jus- tice Stevens suggests, post, at 1024, "the real key" to our decision; it is merely one of several essential ingredients. Nor do we "condemn state legislation merely because it was based on accurate information." Post, at 1031, n. 28. The use of sophisticated technology and detailed information in the drawing of majority-minority districts is no more objec- tionable than it is in the drawing of majority-majority dis- 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 963 Opinion of O'Connor, J. tricts. But, as the District Court explained, the direct evi- dence of racial considerations, coupled with the fact that the computer program used was significantly more sophisticated with respect to race than with respect to other demographic data, provides substantial evidence that it was race that led to the neglect of traditional districting criteria here. We must therefore consider what role other factors played in order to determine whether race predominated. Several factors other than race were at work in the draw- ing of the districts. Traditional districting criteria were not entirely neglected: Districts 18 and 29 maintain the integrity of county lines; each of the three districts takes its character from a principal city and the surrounding urban area; and none of the districts is as widely dispersed as the North Car- olina district held unconstitutional in Shaw II, ante, p. 899. (These characteristics are, however, unremarkable in the context of large, densely populated urban counties.) More significantly, the District Court found that incumbency protection influenced the redistricting plan to an unprece- dented extent: "[A]s enacted in Texas in 1991, many incumbent protec- tion boundaries sabotaged traditional redistricting prin- ciples as they routinely divided counties, cities, neigh- borhoods, and regions. For the sake of maintaining or winning seats in the House of Representatives, Con- gressmen or would-be Congressmen shed hostile groups and potential opponents by fencing them out of their dis- tricts. The Legislature obligingly carved out districts of apparent supporters of incumbents, as suggested by the incumbents, and then added appendages to connect their residences to those districts. The final result seems not one in which the people select their repre- sentatives, but in which the representatives have se- lected the people." 861 F. Supp., at 1334 (citations and footnotes omitted). 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT 964 BUSH v. VERA Opinion of O'Connor, J. See also id., at 1317­1318 (describing specific evidence of incumbency protection efforts statewide). This finding re- ceives inferential support from the fact that all but one of Texas' 27 incumbents won in the 1992 elections. See id., at 1318. And the appellants point to evidence that in many cases, race correlates strongly with manifestations of com- munity of interest (for example, shared broadcast and print media, public transport infrastructure, and institutions such as schools and churches) and with the political data that are vital to incumbency protection efforts, raising the possibility that correlations between racial demographics and district lines may be explicable in terms of nonracial motivations. For example, a finding by a district court that district lines were drawn in part on the basis of evidence (other than racial data) of where communities of interest existed might weaken a plaintiff's claim that race predominated in the drawing of district lines. Cf. post, at 1049 (Souter, J., dissenting) (rec- ognizing the legitimate role of communities of interest in our system of representative democracy). Strict scrutiny would not be appropriate if race-neutral, traditional districting considerations predominated over ra- cial ones. We have not subjected political gerrymandering to strict scrutiny. See Davis v. Bandemer, 478 U. S. 109, 132 (1986) (White, J., plurality opinion) ("[U]nconstitutional discrimination occurs only when the electoral system is ar- ranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole"); id., at 147 (O'Connor, J., concurring in judgment) ("[P]urely political gerrymandering claims" are not justicia- ble). And we have recognized incumbency protection, at least in the limited form of "avoiding contests between in- cumbent[s]," as a legitimate state goal. See Karcher v. Dag- gett, 462 U. S. 725, 740 (1983); White v. Weiser, 412 U. S. 783, 797 (1973); Burns v. Richardson, 384 U. S. 73, 89, n. 16 (1966); cf. Gaffney v. Cummings, 412 U. S. 735, 751­754, and 752, n. 18 (1973) (State may draw irregular district lines in order 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 965 Opinion of O'Connor, J. to allocate seats proportionately to major political parties). Because it is clear that race was not the only factor that motivated the legislature to draw irregular district lines, we must scrutinize each challenged district to determine whether the District Court's conclusion that race predomi- nated over legitimate districting considerations, including incumbency, can be sustained. A The population of District 30 is 50% African-American and 17.1% Hispanic. Fifty percent of the district's population is located in a compact, albeit irregularly shaped, core in south Dallas, which is 69% African-American. But the remainder of the district consists of narrow and bizarrely shaped ten- tacles-the State identifies seven "segments"-extending primarily to the north and west. See App. 335; see also M. Barone & G. Ujifusa, Almanac of American Politics 1996, p. 1277 (1995) (describing the district). Over 98% of the dis- trict's population is within Dallas County, see App. 118, but it crosses two county lines at its western and northern ex- tremities. Its western excursion into Tarrant County grabs a small community that is 61.9% African-American, id., at 331; its northern excursion into Collin County occupies a hook-like shape mapping exactly onto the only area in the southern half of that county with a combined African- American and Hispanic percentage population in excess of 50%, id., at 153. The District Court's description of the district as a whole bears repeating: "The district sprawls throughout Dallas County, delib- erately excludes the wealthy white neighborhoods of Highland Park and University Park and extends fingers into Collin County, which include the outermost suburbs of Dallas. In Collin County, the district picks up a small African-American neighborhood. The district ex- tends into Tarrant County only to pick up a small border area with a high African-American concentration. It 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT 966 BUSH v. VERA Opinion of O'Connor, J. also reaches out to claim Hamilton Park, an affluent African-American neighborhood surrounded by whites. Part of the district runs along Trinity River bottom, using it to connect dispersed minority population. Nu- merous [voter tabulation districts] were split in order to achieve the population mix required for the district. . . . . . ". . . It is at least 25 miles wide and 30 miles long." 861 F. Supp., at 1337­1338. See also Appendix A to this opinion (outline of District 30). Appellants do not deny that District 30 shows substantial disregard for the traditional districting principles of com- pactness and regularity, or that the redistricters pursued unwaveringly the objective of creating a majority-African- American district. But they argue that its bizarre shape is explained by efforts to unite communities of interest in a single district and, especially, to protect incumbents. Appellants highlight the facts that the district has a con- sistently urban character and has common media sources throughout, and that its tentacles include several major transportation lines into the city of Dallas. These factors, which implicate traditional districting principles, do corre- late to some extent with the district's layout. But we see no basis in the record for displacing the District Court's con- clusion that race predominated over them, particularly in light of the court's findings that the State's supporting data were not "available to the Legislature in any organized fash- ion before District 30 was created," 861 F. Supp., at 1338, and that they do not "differentiate the district from surrounding areas," ibid., with the same degree of correlation to district lines that racial data exhibit, see App. 150. In reaching that conclusion, we do not, as Justice Stevens fears, require States engaged in redistricting to compile "a comprehensive administrative record," post, at 1026 (Stevens, J., dissent- ing), and we do not dismiss facts not explicitly mentioned in the redistricting plan's legislative history as "irrelevant," 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 967 Opinion of O'Connor, J. ibid. If, as may commonly happen, traditional districting principles are substantially followed without much conscious thought, they cannot be said to have been "subordinated to race." In considering whether race was the "predominant factor motivating the legislatur[e]," it is, however, eviden- tially significant that at the time of the redistricting, the State had compiled detailed racial data for use in redistrict- ing, but made no apparent attempt to compile, and did not refer specifically to, equivalent data regarding communities of interest. Appellants present a more substantial case for their claim that incumbency protection rivaled race in determining the district's shape. Representative Johnson was the principal architect of District 30, which was designed in part to create a safe Democratic seat for her. At an early stage in the redistricting process, Johnson submitted to the state legisla- ture a plan for Dallas County with a relatively compact 44% African-American district that did not violate the integrity of any voter tabulation district or county lines. See App. 139; 861 F. Supp., at 1338. The District Court found that "[w]hile minority voters did not object" to it, id., at 1330, "[t]hat plan drew much opposition from incumbents and was quickly abandoned," id., at 1321, n. 22. "[F]ive other con- gressmen would have been thrown into districts other than the ones they currently represent." Id., at 1330­1331. Ap- pellants also point to testimony from Johnson and others to the effect that the incumbents of the adjacent Democratic Districts 5 and 24 exerted strong and partly successful ef- forts to retain predominantly African-American Democratic voters in their districts. (There was evidence that 97% of African-American voters in and around the city of Dallas vote Democrat.) See generally id., at 1321­1322. In some circumstances, incumbency protection might ex- plain as well as, or better than, race a State's decision to depart from other traditional districting principles, such as compactness, in the drawing of bizarre district lines. And 517us3$68j 02-19-99 11:09:44 PAGES OPINPGT 968 BUSH v. VERA Opinion of O'Connor, J. the fact that, "[a]s it happens, . . . many of the voters being fought over [by the neighboring Democratic incumbents] were African-American," id., at 1338, would not, in and of itself, convert a political gerrymander into a racial gerryman- der, no matter how conscious redistricters were of the corre- lation between race and party affiliation. See Shaw I, 509 U. S., at 646. If district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify, just as racial disproportions in the level of prosecu- tions for a particular crime may be unobjectionable if they merely reflect racial disproportions in the commission of that crime, cf. post, at 1032, n. 30 (Stevens, J., dissenting) (dis- cussing United States v. Armstrong, ante, at 456. If the State's goal is otherwise constitutional political ger- rymandering, it is free to use the kind of political data on which Justice Stevens focuses-precinct general election voting patterns, post, at 1030, precinct primary voting pat- terns, post, at 1017, and legislators' experience, post, at 1026-to achieve that goal regardless of its awareness of its racial implications and regardless of the fact that it does so in the context of a majority-minority district. To the extent that the District Court suggested the contrary, it erred. But to the extent that race is used as a proxy for political characteristics, a racial stereotype requiring strict scrutiny is in operation. Cf. Powers v. Ohio, 499 U. S. 400, 410 (1991) ("Race cannot be a proxy for determining juror bias or com- petence"). We cannot agree with the dissenters, see post, at 1031 (Stevens, J., dissenting); post, at 1051­1052, n. 5 (Sou- ter, J., dissenting); see also Shaw II, ante, at 924­925, n. 4 (Stevens, J., dissenting), that racial stereotyping that we have scrutinized closely in the context of jury service can pass without justification in the context of voting. If the promise of the Reconstruction Amendments, that our Nation is to be free of state-sponsored discrimination, is to be up- held, we cannot pick and choose between the basic forms of 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 969 Opinion of O'Connor, J. political participation in our efforts to eliminate unjustified racial stereotyping by government actors. Here, the District Court had ample bases on which to con- clude both that racially motivated gerrymandering had a qualitatively greater influence on the drawing of district lines than politically motivated gerrymandering, and that po- litical gerrymandering was accomplished in large part by the use of race as a proxy. The State's own VRA § 5 submission explains the drawing of District 30, and the rejection of Johnson's more compact plan, in exclusively racial terms: "Throughout the course of the Congressional redistrict- ing process, the lines of the proposed District 30 were constantly reconfigured in an attempt to maximize the voting strength for this black community in Dallas County . . . While the legislature was in agreement that a safe black district should be drawn in the Dallas County area, the real dispute involved the composition, configuration and quality of that district. The commu- nity insisted that [a] `safe' black district be drawn that had a total black population of at least 50%. . . . ". . . Although some [alternative] proposals showed a more compact configuration, none of them reached the threshold 50% total black population which the commu- nity felt was necessary to assure its ability to elect its own Congressional representative without having to form coalitions with other minority groups. . . . ". . . The goal was to not only create a district that would maximize the opportunity for the black community to elect a Congressional candidate of its choice in 1992, but also one that included some of the major black growth areas which will assure continued electoral and economic opportunities over the next decades." App. 106­107. As the District Court noted, testimony of state officials in earlier litigation (in which District 30 was challenged as a political gerrymander) contradicted part of their testimony 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT 970 BUSH v. VERA Opinion of O'Connor, J. here, and affirmed that "race was the primary consideration in the construction of District 30." 861 F. Supp., at 1338; see also id., at 1319­1321. And Johnson explained in a letter to the Department of Justice written at the end of the re- districting process that incumbency protection had been achieved by using race as a proxy: " `Throughout the course of the Congressional redistrict- ing process, the lines were continuously reconfigured to assist in protecting the Democratic incumbents in the Dallas/Fort Worth metroplex area by spreading the Black population to increase the Democratic party index in those areas.' " Id., at 1322 (quoting Plaintiff Exh. 6E6). This is not to say that the direct evidence of the districters' intent showed race to be the sole factor considered. As Jus- tice Stevens notes, post, at 1024­1025, nn. 23­24, state of- ficials' claims have changed as their interests have changed. In the prior political gerrymandering suit and to the Depart- ment of Justice, they asserted that race predominated. In this suit, their testimony was that political considerations predominated. These inconsistent statements must be viewed in light of their adversarial context. But such ques- tions of credibility are matters for the District Court, and we simply differ from the dissenters in our reading of the record when they find insupportable the District Court's reli- ance on the State's own statements indicating the importance of race, see post, at 1024­1025, nn. 23­24, 1033, n. 31 (opinion of Stevens, J.). Finally, and most significantly, the objective evidence pro- vided by the district plans and demographic maps suggests strongly the predominance of race. Given that the district- ing software used by the State provided only racial data at the block-by-block level, the fact that District 30, unlike Johnson's original proposal, splits voter tabulation districts and even individual streets in many places, see App. 150; 861 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 971 Opinion of O'Connor, J. F. Supp., at 1339, suggests that racial criteria predominated over other districting criteria in determining the district's boundaries. And, despite the strong correlation between race and political affiliation, the maps reveal that political considerations were subordinated to racial classification in the drawing of many of the most extreme and bizarre district lines. For example, the northernmost hook of the district, where it ventures into Collin County, is tailored perfectly to maximize minority population, see App. 153 (all whole and parts of 1992 voter tabulation districts within District 30's Collin County hook have a combined African-American and Hispanic population in excess of 50%, with an average African-American population of 19.8%, id., at 331, while the combined African-American and Hispanic population in all surrounding voter tabulation districts, and the other parts of split districts, in Collin County is less than 25%), whereas it is far from the shape that would be necessary to maximize the Democratic vote in that area, see id., at 196 (showing a Republican majority, based on 1990 voting patterns in seven of the eight 1990 voter tabulation districts wholly or partly included in District 30 in Collin County).* *In the application of our precedents to District 30, our disagreement with Justice Stevens' dissent, post, at 1014­1031, is largely factual. In reviewing the District Court's findings of primary fact, we cannot ignore the reality that the District Court heard several days of testimony and argument and became significantly more familiar with the factual details of this suit than this Court can be. We therefore believe that the dissent errs in second-guessing the District Court's assessment of the witnesses' testimony, see post, at 1025, n. 24, and in dismissing as mere "fine tuning," post, at 1030, the practice of using race as a proxy that the District Court found, based on ample evidence, to be pervasive, see Vera v. Richards, 861 F. Supp 1304, 1322 (SD Tex. 1994). For the same reason, we decline to debate the dissent on every factual nuance on which it diverges from the District Court's, and our, view. But two of its specific claims about District 30 merit a response. First, the dissent asserts that "[a] comparison of the 1992 precinct results with a depiction of the proportion of black population in each census block reveals that Democratic-leaning precincts cover a far greater area [of District 30] 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT 972 BUSH v. VERA Opinion of O'Connor, J. The combination of these factors compels us to agree with the District Court that "the contours of Congressional Dis- trict 30 are unexplainable in terms other than race." 861 F. Supp., at 1339. It is true that District 30 does not evince a consistent, single-minded effort to "segregate" voters on the basis of race, post, at 1023 (Stevens, J., dissenting), and does not represent "apartheid," post, at 1054, 1074 (Souter, J., dissenting). But the fact that racial data were used in complex ways, and for multiple objectives, does not mean that race did not predominate over other considerations. The record discloses intensive and pervasive use of race both than majority-black census blocks." Post, at 1030 (emphasis added). While that may be true, the dissent's reliance on 1992 election results is misplaced. Those results were not before the legislature when it drew the district lines in 1991, and may well reflect the popularity and campaign success of Representative Johnson more than the party political predispo- sitions of the district's residents. (The same error infects the dissent's discussion of the Collin County hook, post, at 1020­1021, n. 19 (relying on 1992 election results).) And looking at totals, rather than at the differ- ence between areas just inside and just outside the district lines, is mis- leading: Race may predominate in the drawing of district lines because those lines are finely drawn to maximize the minority composition of the district, notwithstanding that in an overwhelmingly Democratic area, the total of Democrats in the district far exceeds its total minority population. Second, the dissent suggests that strict scrutiny should not apply be- cause District 30's compact core has a higher African-American population percentage than its wayward tentacles. Post, at 1021­1023. In doing so, it again ignores the necessity of determining whether race predominated in the redistricters' actions in light of what they had to work with. Once various adjacent majority-minority populations had been carved away from it by the use of race as a proxy to enhance the electoral chances of neighboring incumbents, the core of District 30 was substantially too small to form an entire district. The principal question faced by the redistrict- ers was, therefore, what territory to add to the core out of the remainder of the Dallas area, which remainder has an average African-American population substantially below the 21% county average. In answering that question, as the District Court explained and the maps bear witness, the redistricters created bizarre, far-reaching tentacles that intricately and consistently maximize the available remaining African-American population. 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 973 Opinion of O'Connor, J. as a proxy to protect the political fortunes of adjacent incum- bents, and for its own sake in maximizing the minority popu- lation of District 30 regardless of traditional districting prin- ciples. District 30's combination of a bizarre, noncompact shape and overwhelming evidence that that shape was essen- tially dictated by racial considerations of one form or another is exceptional; Texas Congressional District 6, for example, which Justice Stevens discusses in detail, post, at 1019­ 1020, has only the former characteristic. That combination of characteristics leads us to conclude that District 30 is sub- ject to strict scrutiny. B In Harris County, centered on the city of Houston, Dis- tricts 18 and 29 interlock "like a jigsaw puzzle . . . in which it might be impossible to get the pieces apart." Barone & Ujifusa, Almanac of American Politics 1996, at 1307­1308; see also Appendixes B and C to this opinion (outlines of Districts 18, 29). As the District Court noted: "[T]hese districts are so finely `crafted' that one cannot visualize their exact boundaries without looking at a map at least three feet square." 861 F. Supp., at 1323. According to the leading statistical study of relative district compactness and regular- ity, they are two of the three least regular districts in the country. See Pildes & Niemi, 92 Mich. L. Rev., at 565. District 18's population is 51% African-American and 15% Hispanic. App. 110. It "has some of the most irregular boundaries of any congressional district in the country[,] . . . boundaries that squiggle north toward Intercontinental Air- port and northwest out radial highways, then spurt south on one side toward the port and on the other toward the Astrodome." Barone & Ujifusa, supra, at 1307. Its "many narrow corridors, wings, or fingers . . . reach out to enclose black voters, while excluding nearby Hispanic residents." Pildes & Niemi, supra, at 556. District 29 has a 61% Hispanic and 10% African-American population. App. 110. It resembles 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT 974 BUSH v. VERA Opinion of O'Connor, J. " `a sacred Mayan bird, with its body running eastward along the Ship Channel from downtown Houston until the tail terminates in Baytown. Spindly legs reach south to Hobby Airport, while the plumed head rises northward almost to Intercontinental. In the western extremity of the district, an open beak appears to be searching for worms in Spring Branch. Here and there, ruffled feathers jut out at odd angles.' " Barone & Ujifusa, supra, at 1335. Not only are the shapes of the districts bizarre; they also exhibit utter disregard of city limits, local election precincts, and voter tabulation district lines. See, e. g., 861 F. Supp., at 1340 (60% of District 18 and District 29 residents live in split precincts). This caused a severe disruption of tradi- tional forms of political activity. Campaigners seeking to visit their constituents "had to carry a map to identify the district lines, because so often the borders would move from block to block"; voters "did not know the candidates running for office" because they did not know which district they lived in. Ibid. In light of Texas' requirement that voting be arranged by precinct, with each precinct representing a community that shares local, state, and federal represen- tatives, it also created administrative headaches for local election officials: "The effect of splitting dozens of [voter tabulation districts] to create Districts 18 and 29 was an electoral nightmare. Harris County estimated that it must in- crease its number of precincts from 672 to 1,225 to ac- commodate the new Congressional boundaries. Polling places, ballot forms, and the number of election employ- ees are correspondingly multiplied. Voters were thrust into new and unfamiliar precinct alignments, a few with populations as low as 20 voters." Id., at 1325. See also App. 119­127 (letter from local official setting forth administrative problems and conflict with local districting 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 975 Opinion of O'Connor, J. traditions); id., at 147 (map showing splitting of city limits); id., at 128, Plaintiffs' Exh. 6E1, Attachment A (map illustrat- ing splitting of voting precincts). As with District 30, appellants adduced evidence that in- cumbency protection played a role in determining the bizarre district lines. The District Court found that one constraint on the shape of District 29 was the rival ambitions of its two "functional incumbents," who distorted its boundaries in an effort to include larger areas of their existing state legisla- tive constituencies. 861 F. Supp., at 1340. But the District Court's findings amply demonstrate that such influences were overwhelmed in the determination of the districts' bizarre shapes by the State's efforts to maximize racial divisions. The State's VRA § 5 submission explains that the bizarre configuration of Districts 18 and 29 "result[s] in the maximization of minority voting strength" in Harris County, App. 110, corroborating the District Court's finding that "[i]n the earliest stages of the Congressional redistricting process, state Democratic and Republican leaders rallied behind the idea of creating a new Hispanic safe seat in Harris County while preserving the safe African-American seat in District 18." 861 F. Supp., at 1324. State officials testified that "it was particularly necessary to split [voter tabulation districts] in order to capture pockets of Hispanic residents" for Dis- trict 29, and that a 61% Hispanic population in that district- not a mere majority-was insisted upon. Id., at 1340­1341. The record evidence of the racial demographics and voting patterns of Harris County residents belies any suggestion that party politics could explain the dividing lines between the two districts: The district lines correlate almost perfectly with race, see App. 151­152, while both districts are similarly solidly Democratic, see id., at 194. And, even more than in District 30, the intricacy of the lines drawn, separating His- panic voters from African-American voters on a block-by- block basis, betrays the critical impact of the block-by-block racial data available on the REDAPPL program. The Dis- 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT 976 BUSH v. VERA Opinion of O'Connor, J. trict Court's conclusion is, therefore, inescapable: "Because Districts 18 and 29 are formed in utter disregard for tradi- tional redistricting criteria and because their shapes are ulti- mately unexplainable on grounds other than the racial quotas established for those districts, they are the product of [pre- sumptively] unconstitutional racial gerrymandering." 861 F. Supp., at 1341. III Having concluded that strict scrutiny applies, we must de- termine whether the racial classifications embodied in any of the three districts are narrowly tailored to further a compel- ling state interest. Appellants point to three compelling in- terests: the interest in avoiding liability under the "results" test of VRA § 2(b), the interest in remedying past and pres- ent racial discrimination, and the "nonretrogression" princi- ple of VRA § 5 (for District 18 only). We consider them in turn. A Section 2(a) of the VRA prohibits the imposition of any electoral practice or procedure that "results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color." In 1982, Congress amended the VRA by changing the language of § 2(a) and adding § 2(b), which pro- vides a "results" test for violation of § 2(a). A violation exists if, "based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens pro- tected by subsection (a) of this section in that its mem- bers have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U. S. C. § 1973(b). 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 977 Opinion of O'Connor, J. Appellants contend that creation of each of the three majority-minority districts at issue was justified by Texas' compelling state interest in complying with this results test. As we have done in each of our previous cases in which this argument has been raised as a defense to charges of racial gerrymandering, we assume without deciding that compliance with the results test, as interpreted by our prece- dents, see, e. g., Growe v. Emison, 507 U. S. 25, 37­42 (1993), can be a compelling state interest. See Shaw II, ante, at 915; Miller, 515 U. S., at 920­921. We also reaffirm that the "narrow tailoring" requirement of strict scrutiny allows the States a limited degree of leeway in furthering such inter- ests. If the State has a "strong basis in evidence," Shaw I, 509 U. S., at 656 (internal quotation marks omitted), for concluding that creation of a majority-minority district is reasonably necessary to comply with § 2, and the districting that is based on race "substantially addresses the § 2 viola- tion," Shaw II, ante, at 918, it satisfies strict scrutiny. We thus reject, as impossibly stringent, the District Court's view of the narrow tailoring requirement, that "a district must have the least possible amount of irregularity in shape, making allowances for traditional districting criteria." 861 F. Supp., at 1343. Cf. Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 291 (1986) (O'Connor, J., concurring in part and concurring in judgment) (state actors should not be "trapped between the competing hazards of liability" by the imposition of unattainable requirements under the rubric of strict scrutiny). A § 2 district that is reasonably compact and regular, tak- ing into account traditional districting principles such as maintaining communities of interest and traditional bound- aries, may pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs' experts in endless "beauty contests." The dissenters misread us when they make the leap from our disagreement about the facts of this 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT 978 BUSH v. VERA Opinion of O'Connor, J. suit to the conclusion that we are creating a "stalemate" by requiring the States to "get things just right," post, at 1063 (Souter, J., dissenting), or to draw "the precise compact dis- trict that a court would impose in a successful § 2 challenge," post, at 1035 (Stevens, J., dissenting); see also Shaw II, ante, at 949 (Stevens, J., dissenting). Rather, we adhere to our longstanding recognition of the importance in our federal system of each State's sovereign interest in implementing its redistricting plan. See Voinovich v. Quilter, 507 U. S. 146, 156 (1993) ("[I]t is the domain of the States, and not the fed- eral courts, to conduct apportionment in the first place"); Miller, supra, at 915 ("It is well settled that reapportion- ment is primarily the duty and responsibility of the State") (internal quotation marks omitted). Under our cases, the States retain a flexibility that federal courts enforcing § 2 lack, both insofar as they may avoid strict scrutiny alto- gether by respecting their own traditional districting princi- ples, and insofar as deference is due to their reasonable fears of, and to their reasonable efforts to avoid, § 2 liability. And nothing that we say today should be read as limiting "a State's discretion to apply traditional districting principles," post, at 1046 (Souter, J., dissenting), in majority-minority, as in other, districts. The constitutional problem arises only from the subordination of those principles to race. Strict scrutiny remains, nonetheless, strict. The State must have a "strong basis in evidence" for finding that the threshold conditions for § 2 liability are present: "first, `that [the minority group] is sufficiently large and geographically compact to constitute a majority in a single member district'; second, `that it is politically cohesive'; and third, `that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate.' " Growe, supra, at 40 (emphasis added) (quoting Thornburg v. Gingles, 478 U. S. 30, 50­51 (1986)). 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 979 Opinion of O'Connor, J. And, as we have noted above, the district drawn in order to satisfy § 2 must not subordinate traditional districting princi- ples to race substantially more than is "reasonably neces- sary" to avoid § 2 liability. Districts 18, 29, and 30 fail to meet these requirements. We assume, without deciding, that the State had a "strong basis in evidence" for finding the second and third threshold conditions for § 2 liability to be present. We have, however, already found that all three districts are bizarrely shaped and far from compact, and that those characteristics are pre- dominantly attributable to gerrymandering that was racially motivated and/or achieved by the use of race as a proxy. See Part II, supra. District 30, for example, reaches out to grab small and apparently isolated minority communities which, based on the evidence presented, could not possibly form part of a compact majority-minority district, and does so in order to make up for minority populations closer to its core that it shed in a further suspect use of race as a proxy to further neighboring incumbents' interests. See supra, at 965­966, 969­973. These characteristics defeat any claim that the districts are narrowly tailored to serve the State's interest in avoiding liability under § 2, because § 2 does not require a State to create, on predominantly racial lines, a district that is not "reasonably compact." See Johnson v. De Grandy, 512 U. S. 997, 1008 (1994). If, because of the dispersion of the minor- ity population, a reasonably compact majority-minority dis- trict cannot be created, § 2 does not require a majority- minority district; if a reasonably compact district can be created, nothing in § 2 requires the race-based creation of a district that is far from compact. Appellants argue that bizarre shaping and noncom- pactness do not raise narrow tailoring concerns. Appel- lants Lawson et al. claim that under Shaw I and Miller, "[s]hape is relevant only as evidence of an improper motive." 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT 980 BUSH v. VERA Opinion of O'Connor, J. Brief for Appellants Lawson et al. 56. They rely on our statement in Miller: "Shape is relevant not because bizarreness is a neces- sary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines." 515 U. S., at 913. The United States takes a more moderate position, accepting that in the context of narrow tailoring, "consideration must be given to the extent to which the districts drawn by a State substantially depart from its customary redistricting practices," Brief for United States 36, but asserting that in- sofar as bizarreness and noncompactness are necessary to achieve the State's compelling interest in compliance with § 2 "while simultaneously achieving other legitimate redistrict- ing goals," id., at 37, such as incumbency protection, the nar- rowly tailoring requirement is satisfied. Similarly, Justice Stevens' dissent argues that "noncompact districts should . . . be a permissible method of avoiding violations of [§ 2]." Post, at 1034. These arguments cannot save the districts before us. The Lawson appellants misinterpret Miller: District shape is not irrelevant to the narrow tailoring inquiry. Our discussion in Miller served only to emphasize that the ultimate constitu- tional values at stake involve the harms caused by the use of unjustified racial classifications, and that bizarreness is not necessary to trigger strict scrutiny. See Miller, 515 U. S., at 912­913. Significant deviations from traditional district- ing principles, such as the bizarre shape and noncompactness demonstrated by the districts here, cause constitutional harm insofar as they convey the message that political iden- tity is, or should be, predominantly racial. For example, the bizarre shaping of Districts 18 and 29, cutting across pre- 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 981 Opinion of O'Connor, J. existing precinct lines and other natural or traditional divi- sions, is not merely evidentially significant; it is part of the constitutional problem insofar as it disrupts nonracial bases of political identity and thus intensifies the emphasis on race. Nor is the United States' argument availing here. In de- termining that strict scrutiny applies here, we agreed with the District Court that in fact the bizarre shaping and non- compactness of these districts were predominantly attrib- utable to racial, not political, manipulation. The United States' argument, and that of the dissent, post, at 1033­1035 (Stevens, J., dissenting), address the case of an otherwise compact majority-minority district that is misshapen by pre- dominantly nonracial, political manipulation. See also post, at 1068 (Souter, J., dissenting) (raising "the possibility that a State could create a majority-minority district that does not coincide with the Gingles shape so long as racial data are not overused"). We disagree with the factual premise of Justice Stevens' dissent, that these districts were drawn using "racial considerations only in a way reasonably de- signed" to avoid a § 2 violation, post, at 1035. The districts before us exhibit a level of racial manipulation that exceeds what § 2 could justify. B The United States and the State next contend that the district lines at issue are justified by the State's compelling interest in "ameliorating the effects of racially polarized vot- ing attributable to past and present racial discrimination." Brief for United States 32; Brief for Appellants Bush et al. 24­25. In support of that contention, they cite Texas' long history of discrimination against minorities in electoral proc- esses, stretching from the Reconstruction to modern times, including violations of the Constitution and of the VRA. See, e. g., Williams v. Dallas, 734 F. Supp. 1317 (ND Tex. 1990); White v. Regester, 412 U. S. 755 (1973); Terry v. Adams, 345 U. S. 461 (1953); Smith v. Allwright, 321 U. S. 649 (1944); Nixon v. Condon, 286 U. S. 73 (1932); Nixon v. 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT 982 BUSH v. VERA Opinion of O'Connor, J. Herndon, 273 U. S. 536 (1927); see also 861 F. Supp., at 1317 (because of its history of official discrimination, Texas be- came a covered jurisdiction under VRA § 5 in 1975, and the Department of Justice has since "frequently interposed ob- jections against the State and its subdivisions"). Appellants attempt to link that history to evidence that in recent elec- tions in majority-minority districts, "Anglos usually bloc voted against" Hispanic and African-American candidates. Ibid. A State's interest in remedying discrimination is compel- ling when two conditions are satisfied. First, the discrimi- nation that the State seeks to remedy must be specific, "iden- tified discrimination"; second, the State "must have had a `strong basis in evidence' to conclude that remedial action was necessary, `before it embarks on an affirmative action program.' " Shaw II, ante, at 910 (citations omitted). Here, the only current problem that appellants cite as in need of remediation is alleged vote dilution as a consequence of racial bloc voting, the same concern that underlies their VRA § 2 compliance defense, which we have assumed to be valid for purposes of this opinion. We have indicated that such problems will not justify race-based districting unless "the State employ[s] sound districting principles, and . . . the affected racial group's residential patterns afford the oppor- tunity of creating districts in which they will be in the major- ity." Shaw I, 509 U. S., at 657 (internal quotation marks omitted). Once that standard is applied, our agreement with the District Court's finding that these districts are not narrowly tailored to comply with § 2 forecloses this line of defense. C The final contention offered by the State and private ap- pellants is that creation of District 18 (only) was justified by a compelling state interest in complying with VRA § 5. We have made clear that § 5 has a limited substantive goal: " `to insure that no voting-procedure changes would be made that 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 983 Opinion of O'Connor, J. would lead to a retrogression in the position of racial minori- ties with respect to their effective exercise of the electoral franchise.' " Miller, 515 U. S., at 926 (quoting Beer v. United States, 425 U. S. 130, 141 (1976)). Appellants contend that this "nonretrogression" principle is implicated because Har- ris County had, for two decades, contained a congressional district in which African-American voters had succeeded in selecting representatives of their choice, all of whom were African-Americans. The problem with the State's argument is that it seeks to justify not maintenance, but substantial augmentation, of the African-American population percentage in District 18. At the previous redistricting, in 1980, District 18's population was 40.8% African-American. Plaintiffs' Exh. 13B, p. 55. As a result of Hispanic population increases and African- American emigration from the district, its population had reached 35.1% African-American and 42.2% Hispanic at the time of the 1990 census. The State has shown no basis for concluding that the increase to a 50.9% African-American population in 1991 was necessary to ensure nonretrogression. Nonretrogression is not a license for the State to do what- ever it deems necessary to ensure continued electoral suc- cess; it merely mandates that the minority's opportunity to elect representatives of its choice not be diminished, directly or indirectly, by the State's actions. We anticipated this problem in Shaw I, 509 U. S., at 655: "A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression." Applying that principle, it is clear that District 18 is not narrowly tailored to the avoidance of § 5 liability. IV The dissents make several further arguments against to- day's decision, none of which address the specifics of this case. We have responded to these points previously. Jus- tice Souter, for example, reiterates his contention from 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT 984 BUSH v. VERA Opinion of O'Connor, J. Shaw I that because districts created with a view to satisfy- ing § 2 do not involve "racial subjugation," post, at 1055, and may in a sense be " `benign[ly]' " motivated, Shaw I, 509 U. S., at 685 (Souter, J., dissenting), strict scrutiny should not apply to them. We rejected that argument in Shaw I, and we reject it now. As we explained then, see id., at 653, we subject racial classifications to strict scrutiny precisely because that scrutiny is necessary to determine whether they are benign-as Justice Stevens' hypothetical of a targeted outreach program to protect victims of sickle cell anemia, see post, at 1032, would, no doubt, be-or whether they misuse race and foster harmful and divisive stereo- types without a compelling justification. We see no need to revisit our prior debates. Both dissents contend that the recognition of the Shaw I cause of action threatens public respect for, and the inde- pendence of, the Federal Judiciary by inserting the courts deep into the districting process. We believe that the dis- sents both exaggerate the dangers involved, and fail to rec- ognize the implications of their suggested retreat from Shaw I. As to the dangers of judicial entanglement, Justice Ste- vens' dissent makes much of cases stemming from state dis- tricting plans originally drawn up before Shaw I, in which problems have arisen from the uncertainty in the law prior to and during its gradual clarification in Shaw I, Miller, and today's cases. See post, at 1037­1038 (Stevens, J., dissent- ing). We are aware of the difficulties faced by the States, and by the district courts, in confronting new constitutional precedents, and we also know that the nature of the expres- sive harms with which we are dealing, and the complexity of the districting process, are such that bright-line rules are not available. But we believe that today's decisions, which both illustrate the defects that offend the principles of Shaw I and reemphasize the importance of the States' discretion in the redistricting process, see supra, at 978­979, will serve 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 985 Opinion of O'Connor, J. to clarify the States' responsibilities. The States have traditionally guarded their sovereign districting preroga- tives jealously, and we are confident that they can fulfill that requirement, leaving the courts to their customary and appropriate backstop role. This Court has now rendered decisions after plenary con- sideration in five cases applying the Shaw I doctrine (Shaw I, Miller, Hays, Shaw II, and this suit). The dissenters would have us abandon those precedents, suggesting that fundamental concerns relating to the judicial role are at stake. See post, at 1035, 1038, 1041 (Stevens, J., dissent- ing); post, at 1047, and n. 2, 1052, 1064, 1074, 1076­1077 (Sou- ter, J., dissenting); Shaw II, ante, at 919­920, 922­923, and n. 3, 929 (Stevens, J., dissenting); but see ante, at 932­933 (noting that the judicial task of distinguishing race-based from non-race-based action in Shaw I cases is far from unique). While we agree that those concerns are implicated here, we believe they point the other way. Our legitimacy requires, above all, that we adhere to stare decisis, especially in such sensitive political contexts as the present, where par- tisan controversy abounds. Legislators and district courts nationwide have modified their practices-or, rather, reem- braced the traditional districting practices that were almost universally followed before the 1990 census-in response to Shaw I. Those practices and our precedents, which ac- knowledge voters as more than mere racial statistics, play an important role in defining the political identity of the American voter. Our Fourteenth Amendment jurispru- dence evinces a commitment to eliminate unnecessary and excessive governmental use and reinforcement of racial ste- reotypes. See, e. g., Georgia v. McCollum, 505 U. S. 42, 59 (1992) ("[T]he exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereo- types held by the party"); Edmonson v. Leesville Concrete Co., 500 U. S. 614, 630­631 (1991) ("If our society is to con- tinue to progress as a multiracial democracy, it must recog- 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT 986 BUSH v. VERA Opinion of O'Connor, J. nize that the automatic invocation of race stereotypes re- tards that progress and causes continued hurt and injury"); Powers, 499 U. S., at 410 ("We may not accept as a defense to racial discrimination the very stereotype the law con- demns"); Holland v. Illinois, 493 U. S. 474, 484, n. 2 (1990) ("[A] prosecutor's `assumption that a black juror may be pre- sumed to be partial simply because he is black' . . . violates the Equal Protection Clause"); Batson v. Kentucky, 476 U. S. 79, 104 (1986) ("[T]he Equal Protection Clause prohibits a State from taking any action based on crude, inaccurate ra- cial stereotypes"). We decline to retreat from that commit- ment today. * * * The judgment of the District Court is Affirmed. 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 987 Appendix A to opinion of O'Connor, J. APPENDIX A TO OPINION OF O'CONNOR, J. TEXAS CONGRESSIONAL DISTRICT 30 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT 988 BUSH v. VERA Apppendix B to opinion of O'Connor, J. APPENDIX B TO OPINION OF O'CONNOR, J. TEXAS CONGRESSIONAL DISTRICT 18 517us3$68j 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 989 Appendix C to opinion of O'Connor, J. APPENDIX C TO OPINION OF O'CONNOR, J. TEXAS CONGRESSIONAL DISTRICT 29 517us3$68x 02-19-99 11:09:45 PAGES OPINPGT 990 BUSH v. VERA O'Connor, J., concurring Justice O'Connor, concurring. I write separately to express my view on two points. First, compliance with the results test of § 2 of the Voting Rights Act (VRA) is a compelling state interest. Second, that test can coexist in principle and in practice with Shaw v. Reno, 509 U. S. 630 (1993), and its progeny, as elaborated in today's opinions. I As stated in the plurality opinion, ante, at 977 (O'Connor, J., joined by Rehnquist, C. J., and Kennedy, J.), this Court has thus far assumed without deciding that compliance with the results test of VRA § 2(b) is a compelling state interest. See Shaw v. Hunt, ante, at 915 (Shaw II); Miller v. Johnson, 515 U. S. 900, 920­921 (1995). Although that assumption is not determinative of the Court's decisions today, I believe that States and lower courts are entitled to more definite guidance as they toil with the twin demands of the Four- teenth Amendment and the VRA. The results test is violated if, "based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [e. g., a racial minority group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U. S. C. § 1973(b). In the 14 years since the enactment of § 2(b), we have interpreted and enforced the obligations that it places on States in a succession of cases, assuming but never directly addressing its constitutionality. See Johnson v. De Grandy, 512 U. S. 997 (1994); Holder v. Hall, 512 U. S. 874 (1994); Voinovich v. Quilter, 507 U. S. 146 (1993); Growe v. Emison, 507 U. S. 25, 37­42 (1993); Chisom v. Roemer, 501 U. S. 380 (1991); Thornburg v. Gingles, 478 U. S. 30 (1986); cf. Chisom, 517us3$68x 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 991 O'Connor, J., concurring supra, at 418 (Kennedy, J., dissenting) (noting that a consti- tutional challenge to the statute was not before the Court). Meanwhile, lower courts have unanimously affirmed its constitutionality. See United States v. Marengo County Comm'n, 731 F. 2d 1546, 1556­1563 (CA11), cert. denied, 469 U. S. 976 (1984); Jones v. Lubbock, 727 F. 2d 364, 372­375 (CA5 1984); Shaw v. Hunt, 861 F. Supp. 408, 438 (EDNC 1994), aff'd, Shaw II, ante, p. 899; Prosser v. Elections Bd., 793 F. Supp. 859, 869 (WD Wis. 1992); Wesley v. Collins, 605 F. Supp. 802, 808 (MD Tenn. 1985), aff'd, 791 F. 2d 1255 (CA6 1986); Jordan v. Winter, 604 F. Supp. 807, 811 (ND Miss.), aff'd sub nom. Allain v. Brooks, 469 U. S. 1002 (1984); Sierra v. El Paso Independent School Dist., 591 F. Supp. 802, 806 (WD Tex. 1984); Major v. Treen, 574 F. Supp. 325, 342­349 (ED La. 1983); accord, Hartman, Racial Vote Dilution and Separation of Powers: An Exploration of the Conflict Be- tween the Judicial "Intent" and the Legislative "Results" Standards, 50 Geo. Wash. L. Rev. 689, 739­752 (1982). Cf. South Carolina v. Katzenbach, 383 U. S. 301 (1966) (uphold- ing the original VRA as a valid exercise of Congress' power under § 2 of the Fifteenth Amendment); Fullilove v. Klutz- nick, 448 U. S. 448, 477 (1980) (Katzenbach and its successors interpreting § 2 of the Fifteenth Amendment "confirm that congressional authority extends beyond the prohibition of purposeful discrimination to encompass state action that has discriminatory impact perpetuating the effects of past dis- crimination"); White v. Alabama, 867 F. Supp. 1519, 1549 (MD Ala. 1994) (the results test "has not been held unconsti- tutional and complying with it remains a strong state inter- est"), vacated and remanded on other grounds, 74 F. 3d 1058, 1069 (CA11 1996) (noting that "Section 2 was enacted to enforce the Fifteenth Amendment's prohibition against denying a citizen the right to vote `on account of race' "). Against this background, it would be irresponsible for a State to disregard the § 2 results test. The Supremacy Clause obliges the States to comply with all constitutional 517us3$68x 02-19-99 11:09:45 PAGES OPINPGT 992 BUSH v. VERA O'Connor, J., concurring exercises of Congress' power. See U. S. Const., Art. VI, cl. 2. Statutes are presumed constitutional, see, e. g., Fair- bank v. United States, 181 U. S. 283, 285 (1901), and that presumption appears strong here in light of the weight of authority affirming the results test's constitutionality. In addition, fundamental concerns of federalism mandate that States be given some leeway so that they are not "trapped between the competing hazards of liability." Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 291 (1986) (O'Connor, J., concurring). We should allow States to assume the constitu- tionality of § 2 of the VRA, including the 1982 amendments. This conclusion is bolstered by concerns of respect for the authority of Congress under the Reconstruction Amend- ments. See City of Rome v. United States, 446 U. S. 156, 179 (1980). The results test of § 2 is an important part of the apparatus chosen by Congress to effectuate this Nation's commitment "to confront its conscience and fulfill the guar- antee of the Constitution" with respect to equality in voting. S. Rep. No. 97­417, p. 4 (1982). Congress considered the test "necessary and appropriate to ensure full protection of the Fourteenth and Fifteenth Amendments rights." Id., at 27. It believed that without the results test, nothing could be done about "overwhelming evidence of unequal access to the electoral system," id., at 26, or about "voting practices and procedures [that] perpetuate the effects of past purposeful discrimination," id., at 40. And it founded those beliefs on the sad reality that "there still are some communities in our Nation where racial politics do dominate the electoral proc- ess." Id., at 33. Respect for those legislative conclusions mandates that the § 2 results test be accepted and applied unless and until current lower court precedent is reversed and it is held unconstitutional. In my view, therefore, the States have a compelling in- terest in complying with the results test as this Court has interpreted it. 517us3$68x 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 993 O'Connor, J., concurring II Although I agree with the dissenters about § 2's role as part of our national commitment to racial equality, I differ from them in my belief that that commitment can and must be reconciled with the complementary commitment of our Fourteenth Amendment jurisprudence to eliminate the un- justified use of racial stereotypes. At the same time that we combat the symptoms of racial polarization in politics, we must strive to eliminate unnecessary race-based state action that appears to endorse the disease. Today's decisions, in conjunction with the recognition of the compelling state interest in compliance with the reason- ably perceived requirements of § 2, present a workable framework for the achievement of these twin goals. I would summarize that framework, and the rules governing the States' consideration of race in the districting process, as follows. First, so long as they do not subordinate traditional dis- tricting criteria to the use of race for its own sake or as a proxy, States may intentionally create majority-minority districts, and may otherwise take race into consideration, without coming under strict scrutiny. See ante, at 958­959 (plurality opinion); post, at 1008­1011, and n. 8, 1025 (Ste- vens, J., dissenting); post, at 1056, 1065, 1073 (Souter, J., dissenting). Only if traditional districting criteria are ne- glected and that neglect is predominantly due to the misuse of race does strict scrutiny apply. Ante, at 962, 964, 978 (plurality opinion). Second, where voting is racially polarized, § 2 prohibits States from adopting districting schemes that would have the effect that minority voters "have less opportunity than other members of the electorate to . . . elect representatives of their choice." § 2(b). That principle may require a State to create a majority-minority district where the three Gingles factors are present-viz., (i) the minority group "is sufficiently large and geographically compact to constitute a 517us3$68x 02-19-99 11:09:45 PAGES OPINPGT 994 BUSH v. VERA O'Connor, J., concurring majority in a single-member district," (ii) "it is politically cohesive," and (iii) "the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate," Thornburg v. Gingles, 478 U. S., at 50­51. Third, the state interest in avoiding liability under VRA § 2 is compelling. See supra, at 990­992; post, at 1033 (Ste- vens, J., dissenting); post, at 1065 (Souter, J., dissenting). If a State has a strong basis in evidence for concluding that the Gingles factors are present, it may create a majority- minority district without awaiting judicial findings. Its "strong basis in evidence" need not take any particular form, although it cannot simply rely on generalized assumptions about the prevalence of racial bloc voting. Fourth, if a State pursues that compelling interest by cre- ating a district that "substantially addresses" the potential liability, Shaw II, ante, at 918, and does not deviate substan- tially from a hypothetical court-drawn § 2 district for pre- dominantly racial reasons, cf. ante, at 979 (plurality opinion) (explaining how District 30 fails to satisfy these criteria), its districting plan will be deemed narrowly tailored. Cf. ante, at 981 (plurality opinion) (acknowledging this possibility); post, at 1068 (Souter, J., dissenting) (same); post, at 1033­ 1035 (Stevens, J., dissenting) (contending that it is applica- ble here). Finally, however, districts that are bizarrely shaped and noncompact, and that otherwise neglect traditional district- ing principles and deviate substantially from the hypotheti- cal court-drawn district, for predominantly racial reasons, are unconstitutional. See ante, at 979 (plurality opinion). District 30 illustrates the application of these principles. Dallas County has a history of racially polarized voting. See, e. g., White v. Regester, 412 U. S. 755, 765­767 (1973); Lipscomb v. Wise, 399 F. Supp. 782, 785­786 (ND Tex. 1975), rev'd, 551 F. 2d 1043 (CA5 1977), rev'd, 437 U. S. 535 (1978). One year before the redistricting at issue here, a District Court invalidated under § 2 the Dallas City Council election 517us3$68x 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 995 O'Connor, J., concurring scheme, finding racial polarization and that candidates pre- ferred by African-American voters were consistently de- feated. See Williams v. Dallas, 734 F. Supp. 1317, 1387­ 1394 (ND Tex. 1990). Expert testimony in this litigation also confirmed the existence of racially polarized voting in and around Dallas County. 4 Tr. 187; see also App. 227. With respect to geographical compactness, the record con- tains two quite different possible designs for District 30, the original Johnson Plan, id., at 139, and the Owens-Pate Plan, id., at 141, that are reasonably compact and include, respec- tively, 44% and 45.6% African-American populations. This evidence provided a strong basis for Texas' belief that the creation of a majority-minority district was appropriate. But Texas allowed race to dominate the drawing of District 30 to the almost total exclusion of nonracial districting con- siderations, and ultimately produced a district that, because of the misuse of race as a proxy in addition to legitimate efforts to satisfy § 2, is bizarrely shaped and far from com- pact. See ante, at 965­966, 969­973, and n. (plurality opin- ion); compare post, at 1014­1032 (Stevens, J., dissenting). It thus came under strict scrutiny and failed the narrow tai- loring test. As the disagreement among Members of this Court over District 30 shows, the application of the principles that I have outlined sometimes requires difficult exercises of judg- ment. That difficulty is inevitable. The VRA requires the States and the courts to take action to remedy the reality of racial inequality in our political system, sometimes necessi- tating race-based action, while the Fourteenth Amendment requires us to look with suspicion on the excessive use of racial considerations by the government. But I believe that the States, playing a primary role, and the courts, in their secondary role, are capable of distinguishing the appropriate and reasonably necessary uses of race from its unjustified and excessive uses. 517us3$68l 02-19-99 11:09:45 PAGES OPINPGT 996 BUSH v. VERA Kennedy, J., concurring Justice Kennedy, concurring. I join the plurality opinion, but the statements in Part II of the opinion that strict scrutiny would not apply to all cases of intentional creation of majority-minority districts, ante, at 958, 962­963, require comment. Those statements are un- necessary to our decision, for strict scrutiny applies here. I do not consider these dicta to commit me to any position on the question whether race is predominant whenever a State, in redistricting, foreordains that one race be the majority in a certain number of districts or in a certain part of the State. In my view, we would no doubt apply strict scrutiny if a State decreed that certain districts had to be at least 50 per- cent white, and our analysis should be no different if the State so favors minority races. We need not answer this question here, for there is ample evidence that otherwise demonstrates the predominance of race in Texas' redistricting, as the plurality shows, ante, at 958­976. And this question was not at issue in DeWitt v. Wilson, 856 F. Supp. 1409 (ED Cal. 1994), summarily aff'd in part and dism'd in part, 515 U. S. 1170 (1995). (I note that our summary affirmance in DeWitt stands for no proposition other than that the districts reviewed there were constitu- tional. We do not endorse the reasoning of the district court when we order summary affirmance of the judgment. Man- del v. Bradley, 432 U. S. 173, 176 (1977) (per curiam); Edel- man v. Jordan, 415 U. S. 651, 671 (1974).) On the narrow-tailoring issue, I agree that the districts challenged here were not reasonably necessary to serve the assumed compelling state interest in complying with § 2 of the Voting Rights Act of 1965, 42 U. S. C. § 1973. As the plurality opinion indicates, ante, at 978, in order for compli- ance with § 2 to be a compelling interest, the State must have a strong basis in the evidence for believing that all three of the threshold conditions for a § 2 claim are met: "[F]irst, `that [the minority group] is sufficiently large and geographically compact to constitute a majority in 517us3$68l 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 997 Kennedy, J., concurring a single-member district'; second, `that it is politically cohesive'; and third, `that the white majority votes suf- ficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate.' " Growe v. Emison, 507 U. S. 25, 40 (1993), quoting Thornburg v. Gingles, 478 U. S. 30, 50­51 (1986). The first Gingles condition refers to the compactness of the minority population, not to the compactness of the contested district. As the plurality observes: "If, because of the dis- persion of the minority population, a reasonably compact majority-minority district cannot be created, § 2 does not re- quire a majority-minority district . . . ." Ante, at 979. We may assume, as the plurality does expressly, ibid., that there was sufficient evidence of racial polarization to fulfill the sec- ond and third Gingles conditions, and we may assume, as must be done to reach the narrow-tailoring question, that the African-American and Hispanic populations in Harris County and the African-American population in Dallas County were each concentrated enough to form a majority in a reasonably compact district, thereby meeting the first Gingles condition. If a State has the assumed compelling interest in avoiding § 2 liability, it still must tailor its districts narrowly to serve that interest. "[T]he districting that is based on race [must] `substantially addres[s] the § 2 violation.' " Ante, at 977 (quoting Shaw v. Hunt, ante, at 918 (Shaw II)). The State may not engage in districting based on race except as reason- ably necessary to cure the anticipated § 2 violation, nor may it use race as a proxy to serve other interests. Ante, at 979. The plurality gives as an example of the former the fact that "District 30 . . . reaches out to grab small and apparently isolated minority communities which, based on the evidence presented, could not possibly form part of a compact majority-minority district." Ibid. (referring to tentacles of District 30 that coil around outlying African-American communities in Collin and Tarrant Counties, ante, at 965­ 517us3$68l 02-19-99 11:09:45 PAGES OPINPGT 998 BUSH v. VERA Kennedy, J., concurring 966). And, as the plurality further holds in a portion of its predominant-factor analysis that is central to the narrow- tailoring inquiry, District 30 also involved the illicit use of race as a proxy when legislators shifted blocs of African- American voters to districts of incumbent Democrats in order to promote partisan interests. See ante, at 968­970. Narrow tailoring is absent in Districts 18 and 29 as well. Although the State could have drawn either a majority- African-American or majority-Hispanic district in Harris County without difficulty, there is no evidence that two rea- sonably compact majority-minority districts could have been drawn there. Of the major alternative plans considered below, only the Owens-Pate plan drew majority-African- American and majority-Hispanic districts in Harris County, App. 142, but those districts were not compact. Section 2 does not require the State to create two noncompact majority-minority districts just because a compact district could be drawn for either minority independently. See ante, at 979 ("§ 2 does not require a State to create, on predomi- nantly racial lines, a district that is not `reasonably com- pact' "); Johnson v. De Grandy, 512 U. S. 997, 1024 (1994) (affirming, upon a finding of no vote dilution, District Court decision not to give § 2 remedies to both African-Americans and Hispanics because population overlap made the remedies mutually exclusive). The race-based districting that the State performed in drawing Districts 18, 29, and 30 was not justified by § 2, or indeed by any other compelling interest, either real or assumed. That itself suffices to defeat the State's claim that those three districts were narrowly tai- lored. Shaw II, ante, at 915­918. (In this respect, I dis- agree with the apparent suggestion in Justice O'Connor's separate concurrence that a court should conduct a second predominant-factor inquiry in deciding whether a district was narrowly tailored, see ante, at 994. There is nothing in 517us3$68l 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 999 Thomas, J., concurring in judgment the plurality opinion or any opinion of the Court to support that proposition. The simple question is whether the race- based districting was reasonably necessary to serve a com- pelling interest.) While § 2 does not require a noncompact majority-minority district, neither does it forbid it, provided that the rationale for creating it is proper in the first instance. Districts not drawn for impermissible reasons or according to impermissi- ble criteria may take any shape, even a bizarre one. States are not prevented from taking into account race-neutral fac- tors in drawing permissible majority-minority districts. If, however, the bizarre shape of the district is attributable to race-based districting unjustified by a compelling interest (e. g., gratuitous race-based districting or use of race as a proxy for other interests), such districts may "cause constitu- tional harm insofar as they convey the message that political identity is, or should be, predominantly racial," ante, at 980. While districts "may pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs' experts in endless `beauty contests,' " ante, at 977, the District Court was right to declare unconstitutional the egregious, unjusti- fied race-based districting that occurred here. Justice Thomas, with whom Justice Scalia joins, concurring in the judgment. In my view, application of strict scrutiny in this suit was never a close question. I cannot agree with Justice O'Connor's assertion that strict scrutiny is not invoked by the intentional creation of majority-minority districts. See ante, at 958. Though Shaw v. Reno, 509 U. S. 630, 649 (1993) (Shaw I), expressly reserved that question, we effectively resolved it in subsequent cases. Only last Term, in Ada- rand Constructors, Inc. v. Pen a, 515 U. S. 200, 227 (1995), we vigorously asserted that all governmental racial classifica- 517us3$68n 02-19-99 11:09:45 PAGES OPINPGT 1000 BUSH v. VERA Thomas, J., concurring in judgment tions must be strictly scrutinized.1 And in Miller v. John- son, 515 U. S. 900 (1995), Georgia's concession that it inten- tionally created majority-minority districts was sufficient to show that race was a predominant, motivating factor in its redistricting. Id., at 918­919. Strict scrutiny applies to all governmental classifications based on race, and we have expressly held that there is no exception for race-based redistricting. Id., at 913­915; Shaw I, supra, at 643­647. While we have recognized the evidentiary difficulty of proving that a redistricting plan is, in fact, a racial gerrymander, see Miller, supra, at 916­917; Shaw I, 509 U. S., at 646­647, we have never suggested that a racial gerrymander is subject to anything less than strict scrutiny. See id., at 646 ("The difficulty of proof, of course, does not mean that a racial gerrymander, once established, should receive less scrutiny under the Equal Protection Clause than other state legislation classifying citizens by race"). In Shaw I, we noted that proving a racial gerrymander "sometimes will not be difficult at all," ibid., and suggested that evidence of a highly irregular shape or disregard for traditional race-neutral districting principles could suffice to invoke strict scrutiny. We clarified in Miller that a plaintiff may rely on both circumstantial and direct evidence and said that a plaintiff "must prove that the legislature subordinated traditional race-neutral districting principles . . . to racial considerations." 515 U. S., at 916. The shape of Georgia's Eleventh District was itself "quite compelling" evidence of 1 In Adarand, we overruled Metro Broadcasting, Inc. v. FCC, 497 U. S. 547 (1990), and held that strict scrutiny applies to racial classifications by the Federal Government as well as to those by the States. For quite some time, however, we have consistently held that race-based classifica- tions by the States must be strictly scrutinized. See, e. g., Richmond v. J. A. Croson Co., 488 U. S. 469, 493­494 (1989) (plurality opinion); id., at 520 (Scalia, J., concurring in judgment); Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 273 (1986) (plurality opinion); id., at 285 (O'Connor, J., concurring in part and concurring in judgment). 517us3$68n 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1001 Thomas, J., concurring in judgment a racial gerrymander, but there was other evidence that showed that the legislature was motivated by a "predomi- nant, overriding desire" to create a third majority-black dis- trict. That evidence was the State's own concession that the legislature had intentionally created an additional majority- black district. See id., at 918­919. On that record, we found that the District Court could not have "reached any conclusion other than that race was the predominant factor in drawing Georgia's Eleventh District." Id., at 918. We have said that impermissible racial classifications do not follow inevitably from a legislature's mere awareness of racial demographics. See id., at 916; Shaw I, supra, at 646. But the intentional creation of a majority-minority district certainly means more than mere awareness that application of traditional, race-neutral districting principles will result in the creation of a district in which a majority of the dis- trict's residents are members of a particular minority group. See Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979) (distinguishing discriminatory intent from "intent as volition" or "intent as awareness of conse- quences"). In my view, it means that the legislature af- firmatively undertakes to create a majority-minority district that would not have existed but for the express use of racial classifications-in other words, that a majority-minority dis- trict is created "because of," and not merely "in spite of," racial demographics. See ibid. When that occurs, tra- ditional race-neutral districting principles are necessarily subordinated (and race necessarily predominates), and the legislature has classified persons on the basis of race. The resulting redistricting must be viewed as a racial gerrymander. Our summary affirmance of DeWitt v. Wilson, 856 F. Supp. 1409 (ED Cal. 1994), summarily aff'd in part and dism'd in part, 515 U. S. 1170 (1995), cannot justify exempting inten- tional race-based redistricting from our well-established Fourteenth Amendment standard. "When we summarily 517us3$68n 02-19-99 11:09:45 PAGES OPINPGT 1002 BUSH v. VERA Thomas, J., concurring in judgment affirm, without opinion, the judgment of a three-judge dis- trict court we affirm the judgment but not necessarily the reasoning by which it was reached. An unexplicated sum- mary affirmance settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines pre- viously announced in our opinions after full argument." Fusari v. Steinberg, 419 U. S. 379, 391­392 (1975) (Burger, C. J., concurring) (footnote omitted). I would not read our summary affirmance of DeWitt to eviscerate the explicit holding of Adarand or to undermine the force of our discus- sion of Georgia's concessions in Miller. In this suit, Texas readily admits that it intentionally created majority-minority districts and that those districts would not have existed but for its affirmative use of racial demographics. As the State concedes in its brief: "Texas intentionally maintained [District] 18 as an African-American opportunity district and intentionally created [Districts] 29 and 30 as minority opportunity dis- tricts in order to comply voluntarily with its reasonable belief, based upon strong evidence, that it was required to do so by the Voting Rights Act, and because it desired to insure that minorities who have historically been ex- cluded from the electoral process in Texas had a reason- able opportunity to elect candidates of their choice." Brief for State Appellants 25. See also ante, at 959­961, 969­970 (reciting similar con- cessions by Texas). That is enough to require application of strict scrutiny in this suit.2 I am content to reaffirm our holding in Adarand that all racial classifications by government must be strictly scrutinized and, even in the 2 It is unnecessary to parse in detail the contours of each challenged district. See ante, at 965­976. I agree that the geographic evidence is itself sufficient to invoke strict scrutiny, but once the State directly con- ceded that it intentionally used racial classifications to create majority- minority districts, there was no need to rely on circumstantial evidence. 517us3$68n 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1003 Stevens, J., dissenting sensitive area of state legislative redistricting, I would make no exceptions. I am willing to assume without deciding that the State has asserted a compelling state interest. Given that assump- tion, I agree that the State's redistricting attempts were not narrowly tailored to achieve its asserted interest. I concur in the judgment. Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting. The 1990 census revealed that Texas' population had grown, over the past decade, almost twice as fast as the pop- ulation of the country as a whole. As a result, Texas was entitled to elect three additional Representatives to the United States Congress, enlarging its delegation from 27 to 30. Because Texas' growth was concentrated in south Texas and the cities of Dallas and Houston, the state legisla- ture concluded that the new congressional districts should be carved out of existing districts in those areas. The con- sequences of the political battle that produced the new map are some of the most oddly shaped congressional districts in the United States. Today, the Court strikes down three of Texas' majority- minority districts, concluding, inter alia, that their odd shapes reveal that the State impermissibly relied on predom- inantly racial reasons when it drew the districts as it did. For two reasons, I believe that the Court errs in striking down those districts. First, I believe that the Court has misapplied its own tests for racial gerrymandering, both by applying strict scrutiny to all three of these districts, and then by concluding that none can meet that scrutiny. In asking whether strict scru- tiny should apply, the Court improperly ignores the "com- plex interplay" of political and geographical considerations that went into the creation of Texas' new congressional dis- tricts, Miller v. Johnson, 515 U. S. 900, 915­916 (1995), and 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1004 BUSH v. VERA Stevens, J., dissenting focuses exclusively on the role that race played in the State's decisions to adjust the shape of its districts. A quick com- parison of the unconstitutional majority-minority districts with three equally bizarre majority-Anglo districts, compare ante, at Appendixes A­C, with infra, at Appendixes A­C, demonstrates that race was not necessarily the predominant factor contorting the district lines. I would follow the fair implications of the District Court's findings,1 and conclude that Texas' entire map is a political, not a racial, gerryman- der.2 See Part IV, infra. Even if strict scrutiny applies, I would find these districts constitutional, for each considers race only to the extent nec- essary to comply with the State's responsibilities under the Voting Rights Act while achieving other race-neutral politi- cal and geographical requirements. The plurality's finding to the contrary unnecessarily restricts the ability of States to conform their behavior to the Voting Rights Act while simultaneously complying with other race-neutral goals. See Part V, infra. Second, even if I concluded that these districts failed an appropriate application of this still-developing law to appro- priately read facts, I would not uphold the District Court decision. The decisions issued today serve merely to rein- 1 The District Court recognized, but erroneously ignored, the over- whelming weight of evidence demonstrating that political considerations dominated the shaping of Texas' congressional districts. See Vera v. Richards, 861 F. Supp. 1304, 1331, 1334­1336 (SD Tex. 1994); infra, at 1027­1029. 2 Because I believe that political gerrymanders are more objectionable than the "racial gerrymanders" perceived by the Court in recent cases, see Karcher v. Daggett, 462 U. S. 725, 748 (1983) (Stevens, J., concurring); Davis v. Bandemer, 478 U. S. 109, 161­162, 166 (1986) (Powell, J., concur- ring in part and dissenting in part), I am not entirely unsympathetic to the Court's holding. I believe, however, that the evils of political gerry- mandering should be confronted directly, rather than through the race- specific approach that the Court has taken in recent years. See also infra, at 1038­1040. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1005 Stevens, J., dissenting force my conviction that the Court has, with its "analytically distinct" jurisprudence of racial gerrymandering, Shaw v. Reno, 509 U. S. 630, 652 (1993) (Shaw I), struck out into a jurisprudential wilderness that lacks a definable constitu- tional core and threatens to create harms more significant than any suffered by the individual plaintiffs challenging these districts. See Parts VI­VII, infra; Shaw v. Hunt, ante, at 918­919 (Shaw II) (Stevens, J., dissenting). Though we travel ever farther from it with each passing decision, I would return to the well-traveled path that we left in Shaw I. I The factors motivating Texas' redistricting plan are clearly revealed in the results of the 1992 elections. Both before and immediately after the 1990 census, the Democratic Party was in control of the Texas Legislature. Under the new map in 1992, more than two-thirds of the Districts-includ- ing each of the new ones-elected Democrats, even though Texas voters are arguably more likely to vote Republican than Democrat.3 Incumbents of both parties were just as successful: 26 of the 27 incumbents were reelected, while each of the three new districts elected a state legislator who had essentially acted as an incumbent in the districting proc- ess,4 giving "incumbents" a 97% success rate. 3 In elections since 1980, the State has elected a Democrat in only two of four gubernatorial races, and in only two of six races for the United States Senate. America Votes 21: A Handbook of Contemporary Ameri- can Election Statistics 417 (R. Scammon & A. McGillivray eds. 1995). Furthermore, in 1994, Republican candidates received a total of 550,000 more votes than Democratic candidates in Texas' 30 races for the United States House of Representatives, id., at 4, while in 1992, Democratic House candidates outpolled Republicans by only 147,000 votes (despite winning 27 of 30 districts). America Votes 20: A Handbook of Contemporary American Election Statistics 474 (R. Scammon & A. McGillivray eds. 1993). 4 Then-State Senator from Dallas, Eddie Bernice Johnson, who was chair of the Senate Subcommittee on Congressional Districts, maneuvered to construct District 30 in a manner that would ensure her election. 861 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1006 BUSH v. VERA Stevens, J., dissenting It was not easy for the State to achieve these results while simultaneously guaranteeing that each district enclosed the residence of its incumbent, contained the same number of people, and complied with other federal and state districting requirements. Much of Dallas and Houston, for example, was already represented in Congress by Democrats, and cre- ating new Democratic districts in each city while ensuring politically safe seats for sitting Representatives required sig- nificant political gerrymandering. This task was aided by technological and informational advances that allowed the State to adjust lines on the scale of city blocks, thereby guar- anteeing twists and turns that would have been essentially impossible in any earlier redistricting.5 "[T]he result of the Legislature's efforts," the District Court concluded, was "a F. Supp., at 1313; Politics in America 1994: The 103rd Congress 1536 (1993) ("This is the District Eddie Bernice Johnson drew"). Vice chair of the same committee, Frank Tejeda, also "attempted to draw a district [Dis- trict 28] that would facilitate his potential candidacy." 861 F. Supp., at 1326. And State Senator Gene Green and State Representative Roman Martinez, both Houston-area officials with designs on Congress, competed in an effort to design District 29 in a way that would guarantee their own election. Id., at 1324, n. 27. (Martinez later dropped out of the congres- sional race to run for State Senate.) Because the role that these legisla- tors played in the redistricting process was largely identical to that played by sitting incumbents, my references to the role of "incumbents" in the redistricting process generally refer to these individuals as well. 5 As did many other States, Texas kept track of the shapes of its post- 1990 districts with a computer districting program loaded with 1990 cen- sus information and geographic information at scales ranging from state- wide to that of a city block. See generally Shaw v. Hunt, 861 F. Supp. 408, 457 (EDNC 1994) (describing computer programs); 861 F. Supp., at 1318­1319. The dramatic increase in bizarrely shaped districts after 1990 can be traced, at least in part, to the fact that computers allowed legisla- tors to achieve their political goals geographically in a manner far more precise than heretofore possible. See Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Ap- pearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 574 (1993); Note, The Illegitimacy of the Incumbent Gerrymander, 74 Texas L. Rev. 913, 924 (1996). 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1007 Stevens, J., dissenting crazy-quilt of districts" that bore little resemblance to "the work of public-spirited representatives." Vera v. Richards, 861 F. Supp. 1304, 1309 (SD Tex. 1994); see, e. g., Appen- dixes A­D. It is clear that race also played a role in Texas' redistrict- ing decisions. According to the 1990 Census, Texas con- tained 16,986,510 residents, of whom 22.5% were of Hispanic origin, and 11.6% were non-Hispanic African-American. 861 F. Supp., at 1311. Under the pre-1990 districting scheme, Texas' 27-member delegation included four Hispanics and one African-American. In Harris County, a concentrated Hispanic community was divided among several majority- Anglo districts as well as the majority-minority District 18. In Dallas County, the majority-black community in South Dallas was split down the middle between two majority- Anglo districts. The legislature was well aware, after the 1990 census, that the minority communities in each county were disproportionately responsible for the growth in popu- lation that gained three representatives for the State. Given the omnipresence of § 2 of the Voting Rights Act, 42 U. S. C. § 1973, the demographics of the two communities, and the pressure from leaders of the minority communities in those cities, it was not unreasonable-and certainly not invidious discrimination of any sort-for the State to accede to calls for the creation of majority-minority districts in both cities.6 6 The State added District 28 (a majority-Hispanic district in south Texas), District 29 (a majority-Hispanic district in Houston), and District 30 (a majority-black district in Dallas). In addition, the State reconfig- ured Houston's District 18. That district had elected African-American Representatives to Congress since the early 1970's and remained majority-minority in 1990, although a plurality of its population was by then Hispanic. To create District 29, the legislature altered the shape of District 18 to move parts of its Hispanic population into that neighboring district while retaining a majority-black population. To the extent that the precise shape of these districts relied on race rather than other factors, that racial gerrymandering was somewhat less 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1008 BUSH v. VERA Stevens, J., dissenting While complying with a multitude of other political and legal requirements, then, Texas created three new majority- minority congressional districts and significantly reconfig- ured one pre-existing district. The District Court con- cluded that the State impermissibly emphasized race over nonracial factors when it drew two of these new districts (District 30 in Dallas and District 29 in Houston) and the reconfigured District 18 in Houston. To determine whether the Court correctly affirms that decision, I begin, as does the plurality, by asking whether "strict scrutiny" should be applied to the State's consideration of race in the creation of these majority-minority districts. II We have traditionally applied strict scrutiny to state ac- tion that discriminates on the basis of race. Prior to Shaw I, however, we did so only in cases in which that discrimination harmed an individual or set of individuals because of their race. In contrast, the harm identified in Shaw I and its progeny is much more diffuse. See Shaw II, ante, at 921­ 925 (Stevens, J., dissenting). Racial gerrymandering of the sort being addressed in these cases is "discrimination" only in the sense that the lines are drawn based on race, not in the sense that harm is imposed on specific persons on account of their race. Ante, at 923­924 (Stevens, J., dissenting). Aware of this distinction, a majority of this Court has en- dorsed a position crucial to a proper evaluation of Texas' con- gressional districts: Neither the Equal Protection Clause nor any other provision of the Constitution was offended merely because the legislature considered race when it deliberately effective than the political gerrymandering had been: District 29, created as a majority-Hispanic district, elected an Anglo, former State Senator Green, in 1992, and reelected him in 1994. America Votes 21, at 437. Given his substantial role in crafting the district to meet his electoral needs, see n. 4, supra, Green's success suggests the power of incumbency over race. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1009 Stevens, J., dissenting created three majority-minority districts.7 The plurality's statement that strict scrutiny "does [not] apply to all cases of intentional creation of majority-minority districts," ante, at 958, merely caps a long line of discussions, stretching from Shaw I to Shaw II, which have both expressly and implicitly set forth precisely that conclusion.8 7 I do not agree with the Court's approach to these cases. Nonetheless, given that the Court seems settled in its conclusion that racial gerryman- dering claims such as these may be pursued, I endorse this proposition. 8 Though expressly reserving the issue in Shaw I, we noted there that appellants wisely conceded that while "race-conscious redistricting is not always unconstitutional. . . . This Court has never held that race-conscious state decisionmaking is impermissible in all circumstances." 509 U. S., at 642 (emphasis in original). The threshold test for the application of strict scrutiny as set forth in Miller v. Johnson, 515 U. S. 900 (1995), implicitly accepts this as true, concluding that strict scrutiny applies not when race merely influences the districting process, but only when "the legislature subordinated traditional race-neutral districting principles . . . to racial considerations." Id., at 916 (emphasis added); see also id., at 928­929 (O'Connor, J., concurring) (test does not "throw into doubt the vast ma- jority of the Nation's 435 congressional districts . . . even though race may well have been considered in the redistricting process"). Shaw II simi- larly recognizes that intent does not trigger strict scrutiny: Although the District Court concluded that the State "deliberately drew" the district in question to ensure that it included a majority of African-American citizens, see Shaw, 861 F. Supp., at 473; Shaw II, ante, at 905, the Court reviews the District Court's findings regarding the demographics of the district to determine whether the strict scrutiny was appropriately applied. See ante, at 905­906; cf. ante, at 999 (Thomas, J., concurring in judgment) (where State intends to create majority-minority district, application of strict scrutiny not even a "close question"). Justice Thomas takes a strong view on this matter, arguing that a majority-minority district should escape strict scrutiny only when it is created "in spite of," not "because of," the race of its population. Ante, at 1001. But because minorities are, by definition, minorities in the popu- lation, it will be rare indeed for a State to stumble across a district in which the minority population is both large enough and segregated enough to allow majority-minority districts to be created with at most a "mere awareness" that the placement of the lines will create such a district. See ibid. Indeed, I doubt that any such district exists in the entire Nation; the creation of even the most compact majority-minority district will gen- 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1010 BUSH v. VERA Stevens, J., dissenting The conclusion that race-conscious districting should not always be subject to strict scrutiny merely recognizes that our equal protection jurisprudence can sometimes mislead us with its rigid characterization of suspect classes and levels of scrutiny. As I have previously noted, all equal protection jurisprudence might be described as a form of rational basis scrutiny; we apply "strict scrutiny" more to describe the likelihood of success than the character of the test to be applied. See Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 452­453 (1985) (Stevens, J., concurring). Be- cause race has rarely been a legitimate basis for state classi- fications, and more typically an irrational and invidious ground for discrimination, a "virtually automatic invalidation of racial classifications" has been the natural result of the application of our equal protection jurisprudence. Id., at 453. In certain circumstances, however, when the state ac- tion (i) has neither the intent nor effect of harming any par- ticular group, (ii) is not designed to give effect to irrational prejudices held by its citizens but to break them down, and (iii) uses race as a classification because race is "relevant" to the benign goal of the classification, id., at 454, we need not view the action with the typically fatal skepticism that we have used to strike down the most pernicious forms of state behavior. See Wygant v. Jackson Bd. of Ed., 476 U. S. 267, erally require a conscious decision to draw its lines "just so" to ensure that the group is not a minority in the district population. It appears, however, that even when a district is placed "just so" in order to include a traditional community in which race does correlate with community in- terests (consider, for example, New York District 15, which is centered on Harlem), Justice Thomas would review that district with the same presumption of invidiousness with which we viewed the district in Gomil- lion v. Lightfoot, 364 U. S. 339 (1960). Cf. Miller, 515 U. S., at 944 (Gins- burg, J., dissenting) (noting that "ethnicity itself can tie people together" in communities of interest). Because the creation of such a district threatens neither the harms of Gomillion nor, I believe, any harms against which the Fourteenth Amendment was intended to protect, I cannot ac- cept his conclusion. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1011 Stevens, J., dissenting 316­317 (1986) (Stevens, J., dissenting); Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 320 (1978). While the Court insisted in Shaw I that racial classifications of this sort injure the Nation (though not necessarily any particular group) in myriad ways, see 509 U. S., at 647­648, redistricting that complies with the three factors I outline above simply is not the sort of despicable practice that has been taken in the past to exclude minorities from the electoral process. See Shaw II, ante, at 931­933 (Stevens, J., dissenting); Shaw I, 509 U. S., at 682­685 (Souter, J., dissenting); cf., e. g., Gomil- lion v. Lightfoot, 364 U. S. 339 (1960); Terry v. Adams, 345 U. S. 461 (1953). While any racial classification may risk some stereotyping, the risk of true "discrimination" in this case is extremely tenuous in light of the remedial purpose the classification is intended to achieve and the long history of resistance to giving minorities a full voice in the political process. Given the balancing of subtle harms and strong remedies-a balancing best left to the political process, not to our own well-developed but rigid jurisprudence-the plu- rality reasonably concludes that race-conscious redistricting is not always a form of "discrimination" to which we should direct our most skeptical eye. III While the Court has agreed that race can, to a point, govern the drawing of district lines, it nonetheless suggests that at a certain point, when the State uses race "too much," illegitimate racial stereotypes threaten to overrun and con- taminate an otherwise legitimate redistricting process. In Miller, the Court concluded that this point was reached when "race for its own sake, and not other districting princi- ples, was the . . . dominant and controlling rationale" behind the shape of the district. 515 U. S., at 913. For strict scru- tiny to apply, therefore, the plaintiff must demonstrate that "the legislature subordinated traditional race-neutral dis- tricting principles, including but not limited to compactness, 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1012 BUSH v. VERA Stevens, J., dissenting contiguity, [and] respect for political subdivisions . . . to racial considerations." Id., at 916; see also id., at 928 (O'Connor, J., concurring) (strict scrutiny should be applied only if State emphasized race in "substantial disregard" for traditional districting principles); ante, at 962 (opinion of O'Connor, J.). Of course, determining the "predominant" motive of the Texas Legislature, ante, at 959 (citing Miller, 515 U. S., at 916), is not a simple matter.9 The members of that body 9 Because the Court's approach to cases of this kind seeks to identify the "predominant" motive of the legislature, it is worth pointing out, as we have on so many prior occasions, that it is often "difficult or impossible for any court to determine the `sole' or `dominant' motivation behind the choices of a group of legislators." Palmer v. Thompson, 403 U. S. 217, 225 (1971). As in every other legislative body, each of the members of Texas' Legislature has his or her own agenda and interests-particularly in the "complicated process" of redistricting, in which every decision "in- evitably has sharp political impact." White v. Weiser, 412 U. S. 783, 795­ 796 (1973). In these circumstances, "[r]arely can it be said that a legisla- ture . . . operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the `dominant' or `primary' one. In fact, it is because legislators . . . are properly con- cerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality." Arlington Heights v. Metropolitan Hous- ing Development Corp., 429 U. S. 252, 265 (1977) (footnote omitted); see also Edwards v. Aguillard, 482 U. S. 578, 636­639 (1987) (Scalia, J., dis- senting); Shaw II, ante, at 940 (Stevens, J., dissenting). Not only is this a case in which a legislature is operating under a "broad mandate," but other factors weigh in favor of deference as well. First, the inherently political process of redistricting is as much at the core of state sovereignty as any other. Second, the "motive" with which we are concerned is not per se impermissible. (For that reason, this litigation is very different from Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), and Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 (1977), in which the plaintiffs alleged that the defendant's action was motivated by an intent to harm individuals because of their status as mem- bers of a particular group. Where there is "proof that a discriminatory purpose has been a motivating factor in the decision," the "judicial defer- ence" due to the legislative process is no longer justified. Id., at 265­ 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1013 Stevens, J., dissenting faced many unrelenting pressures when they negotiated the creation of the contested districts. They had to ensure that there was no deviation in population from district to dis- trict.10 They reasonably believed that they had to create districts that would comply with the Voting Rights Act. See supra, at 1007. If the redistricting legislation was to be enacted, they had to secure the support of incumbent Con- gressmen of both parties by drawing districts that would ensure their election. And all of these desires had to be achieved within a single contiguous district. Every time a district line was shifted from one place to another, each of these considerations was implicated, and additional, compen- sating shifts were necessary to ensure that all competing goals were simultaneously accomplished. In such a con- strained environment, there will rarely be one "dominant and controlling" influence. Nowhere is this better illustrated 266.) Finally, those that are injured by the allegedly discriminatory districts can alleviate their injury through the democratic process: Those in the district could elect a representative who is not a part of their racial group, while the population at large could elect a legislature that refused to rely on racial considerations in the drawing of districts. In such cir- cumstances we should take particular care in questioning the legislature's motives and, if in doubt, presume that the legislature has acted appropri- ately. See post, at 1058­1062 (Souter, J., dissenting). 10 We require state legislatures to ensure that populations, from district to district, are "as mathematically equal as reasonably possible," with de minimis exceptions permissible only in "unavoidable" instances. White v. Weiser, 412 U. S., at 790; see also Karcher, 462 U. S., at 734­735. Popu- lation variances are not permissible even " `if they necessarily result from a State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing . . . political subdivision bound- aries.' " White, 412 U. S., at 791 (citing Kirkpatrick v. Preisler, 394 U. S. 526, 533­534 (1969)). The legislature, therefore, understandably felt com- pelled to achieve mathematical equality regardless of other concerns. Rather surprisingly, they were able to do so: Every one of Texas' 30 congressional districts contains precisely 566,217 persons. Of course, this precision could not have been accomplished without breaking apart counties, cities, neighborhoods, and even pre-existing voting precincts. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1014 BUSH v. VERA Stevens, J., dissenting than in Dallas' District 30 where, at the very least, it is clear that race was not such an overriding factor. IV The plurality lists several considerations which, when taken in combination, lead it to conclude that race, and no other cause, was the predominant factor influencing District 30's configuration. First, there is the shape itself. Second, there is evidence that the districts were intentionally drawn with consciousness of race in an effort to comply with the Voting Rights Act. Third, the plurality dismisses two race- neutral considerations (communities of interest and incum- bency protection) that appellants advanced as race-neutral considerations that led to the odd shape of the districts. Fi- nally, the plurality concludes that race was impermissibly used as a proxy for political affiliation during the course of redistricting. In my opinion, an appropriate reading of the record demonstrates that none of these factors-either sin- gly or in combination-suggests that racial considerations "subordinated" race-neutral districting principles. I discuss each in turn. Bizarre Shape As noted, supra, at 1003, and n. 6, Texas' Legislature con- cluded that it would add a new district to Dallas County that would incorporate the rapidly growing minority communities in South Dallas. To do so, the new district would have to fit into the existing districts: Before redistricting, most of southern Dallas County (including the African-American communities in South Dallas) was divided between Districts 5 and 24, represented by Democratic Representatives Bryant and Frost, respectively. The middle of the northern section of the county was divided between Districts 3 and 26, both represented by Republicans. Then-State Senator Johnson began the redistricting proc- ess by proposing a compact, Democratic, majority-minority 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1015 Stevens, J., dissenting district encompassing all of South Dallas. See App. 139; 861 F. Supp., at 1321, n. 22. Representatives Bryant and Frost objected, however, because the proposed district included not only Johnson's residence, but their own homes, located within only 10 miles of each other on opposite sides of the city. Furthermore, Johnson's plan transferred many of Frost and Bryant's most reliable Democratic supporters into the proposed district. Rather than acquiesce to the creation of this compact majority-minority district, Frost and Bryant insisted that the new district avoid both their own homes and many of the communities that had been loyal to them. Johnson's plan was, therefore, "quickly abandoned." Ibid. To accommodate the incumbents' desires, District 30 re- quired geographical adjustments that had telling effects on its shape. First, two notches carefully avoiding the resi- dences of and neighborhoods surrounding Frost and Bryant were carved out of District 30's side. See Appendix D, infra.11 Furthermore, Frost and Bryant retained several communities-many majority-black-along the southern and eastern sides of the proposed district. See generally 861 F. Supp., at 1321­1322.12 11 This phenomenon is not unique to Dallas County: Throughout the State, "incumbent residences repeatedly fall just along district lines." 861 F. Supp., at 1318 (giving examples); see State's Exhs. 10A and 10B (showing incumbent residences). District 6, for instance, changed from a rural district stretching far to the southeast of Dallas to a more suburban district wrapping around Fort Worth. As it did so, however, the district pivoted around the home of incumbent Representative Joe Barton, whose residence sits at the extreme southeastern end of a district stretching in a 100-mile-long loop around Fort Worth. See Appendix D, infra. 12 The plurality suggests that these communities were shed from District 30 in a "suspect use of race as a proxy to further neighboring incumbents' interests." Ante, at 979; see also ante, at 971­972, n. I had thought, however, that the Court's concern in these cases was the "resemblance to political apartheid" involved in the creation of majority-minority districts. Shaw I, 509 U. S. 630, 647 (1993). I do not see how the decision to include minority communities in a neighboring majority-white district bears any resemblance to such "apartheid" or, for that matter, how it has any rele- 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1016 BUSH v. VERA Stevens, J., dissenting Had these communities been retained by District 30, it would have been much more compact. By giving up these voters to Frost and Bryant, however, District 30 was forced to seek out population and Democratic voters elsewhere. The Democratic incumbents had blocked its way to the south and east; north (and, to a lesser extent, west) was the only way it could go.13 It would not have helped the prospects of a Democratic candidate in the new District 30 had it simply plowed di- rectly north to pick up additional population. Immediately north of the city of Dallas are the "Park Cities," which in- clude a population that has voted strongly Republican throughout recent elections. See State's Exhs. 9A and 9B (depicting one index of political affiliation in 1990 and 1992 elections). Rather than dilute the Democratic vote (and threaten the Republican incumbents) in this manner, District 30 skirted these communities on the west, and then curved east, picking up communities on either side of the region's major interstate freeways.14 As the process of extracting Democratic voters out of the core of the Republican districts in North Dallas progressed, the distinction between Democratic and Republican voters moved from the precinct level (the smallest level at which political affiliation data was immediately available in the re- vance to the validity of the creation of a district from which those minority communities have been excluded. See also infra, at 1030­1032. 13 See, e. g., 3 Tr. 187 (testimony of Christopher Sharman: "[A]ny time you took part of a district away on one end, you would usually squeeze or push the district out on another end; and in this case, most of the time the district would get pushed to the north"). 14 The author of the District Court opinion was herself aware of these political realities. See id., at 194 (Jones, J., noting that Johnson did not want anything to do with the Park Cities because she "[d]idn't want com- petition from Ross Perot"). In light of this recognition, it is difficult to understand why the District Court described District 30's efforts to avoid that community as a contributing factor to the allegedly race-based bi- zarreness of the district borders. See 861 F. Supp., at 1337; ante, at 967. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1017 Stevens, J., dissenting districting programs) down to the smaller census block level (the smallest level at which demographic and socioeconomic data was available).15 In an effort to further identify which census blocks were likely to support their candidacy, the in- cumbents used not only census data, but their own long expe- rience as local representatives as well as the experiences of staffers and supporters. See 3 Tr. 177­179, 181­182 (de- scribing methods, such as simply driving through neighbor- hoods, that staff members and candidates for office used to develop block-specific information regarding the likely politi- cal affiliation of voters).16 In addition, although information about political affiliation was not available at the block level through the computer program, legislators and staffers were able to get relatively precise information about voter preferences through a sys- tem, developed by the Democratic Party, that allowed candi- dates to determine in which party primary voters had partic- ipated. Id., at 179­180. By examining this information, legislators were able to further fine-tune district lines to in- clude likely supporters and exclude those who would prob- 15 Because political boundaries are more closely packed in urban than in rural areas, drawing lines based on such boundaries will almost always require tighter twists and turns in urban districts than in rural districts. Significantly, the three districts struck down by the District Court are the only three districts in the entire State with population densities of over 2,000 persons per square mile. See U. S. Dept. of Commerce, Bureau of the Census, Population and Housing Characteristics for Congressional Districts of the 103d Congress: Texas 40­44 (Feb. 1993). If enough empty land were added to these districts that they matched the sparse densities of rural districts (such as District 28, which was upheld by the District Court), their turns would not appear so sharp, and the open space, without its demographic implications, could smooth the deepest of the districts' notches. 16 As Democratic communities were identified, they had to be connected with the core of the district. Although Texas has no state statutory or constitutional requirement to that effect, state legislators agreed that each of the 30 districts should be entirely contiguous, permitting any candidate, map in hand, to visit every residence in her district without leaving it. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1018 BUSH v. VERA Stevens, J., dissenting ably support their opponents. Cf. Gaffney v. Cummings, 412 U. S. 735, 753 (1973) ("[W]hen [political profiles are] over- laid on a census map, it requires no special genius to recog- nize the political consequences of drawing a district line along one street rather than another").17 The careful gerrymandering conducted by the Texas Leg- islature under the watchful eye of Johnson and her staff was a success not only on a districtwide level (Johnson was elected with over 70% of the vote in both 1992 and 1994), but on a precinct level. While the pre-1990 precincts in the heavily Republican North Dallas gave little reason for a Democratic incumbent to hope for much support, see State's Exh. 9B (maps of Dallas and Collin Counties with 1990 elec- tion index results showing only a few Democrat-leaning pre- cincts in North Dallas), the gerrymandering that occurred in 1991 resulted in smaller precincts that, by all indications, gathered concentrations of Democratic voters into District 30 while leaving concentrations of Republican voters in sur- rounding Districts 3 and 26. See State's Exh. 9A (maps of Dallas and Collin Counties with 1992 election index results showing many more Democrat-leaning precincts in the North Dallas sections of District 30). Presumably relying on Shaw I 's statement that "a reap- portionment plan may be so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to `segregat[e] . . . voters' on the basis of race," 509 17 Incumbents influenced the shape of districts in other ways. Both Dis- trict 30 and District 29, for instance, detoured to include portions of the state legislative districts that were being represented by the state legisla- tors who hoped to run for Congress. See, e. g., State's Exh. 31 (showing that portion of Tarrant County included in District 30 had been part of Johnson's State Senate district). In some cases, legislators drew districts to avoid the residences of potential primary challengers. See 3 Tr. 192­ 193; 4 id., at 46. Incumbents also sought to include communities that they expected (or knew) to contain particularly active supporters; this interest in "active" voters often trumped any desire to ensure a particular racial makeup. See 3 id., at 190; 4 id., at 40­41; 861 F. Supp., at 1320. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1019 Stevens, J., dissenting U. S., at 646­647, the plurality offers mathematical proof that District 30 is one of the most bizarre districts in the Nation, see ante, at 960, and relates the now-obligatory florid de- scription of the district's shape, ante, at 965­966; see also ante, at 973­974 (describing District 29). As the maps ap- pended to this opinion demonstrate, neither District 30 nor the Houston districts have a monopoly on either of these characteristics. Three other majority-white districts are ranked along with the majority-minority districts as among the oddest in the Nation. See Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 565 (1993). Perhaps the clearest example of partisan gerrymandering outside of the context of majority- minority districts is District 6, a majority-Anglo district rep- resented by a Republican.18 18 While two extremely noncompact majority-Anglo districts in Texas (Districts 3 and 25) might be able to blame part (though by no means all) of their contortions on their contiguity with the majority-minority districts, District 6 has little excuse. Although it shares a border with District 30 for a short distance, that stretch is one of the straightest in either of the districts, running almost entirely along the county line through the Dallas-Fort Worth International Airport. See Appendix D, infra. As for the obligatory florid description: District 6 has far less of an identifiable core than any of the majority-minority districts struck down by the District Court. To the extent that it "begins" anywhere, it is prob- ably near the home of incumbent Rep. Barton in Ennis, located almost 40 miles southwest of downtown Dallas. From there, the district winds across predominantly rural sections of Ellis County, finally crossing into Tarrant County, the home of Fort Worth. It skips across two arms of Joe Pool Lake, noses its way into Dallas County, and then travels through predominantly Republican suburbs of Fort Worth. Nearing the central city, the borders dart into the downtown area, then retreat to curl around the city's northern edge, picking up the airport and growing suburbs north of town. Worn from its travels into the far northwestern corner of the county (almost 70 miles, as the crow flies, from Ennis), the district lines plunge south into Eagle Mountain Lake, traveling along the waterline for miles, with occasional detours to collect voters that have built homes along its shores. Refreshed, the district rediscovers its roots in rural Parker 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1020 BUSH v. VERA Stevens, J., dissenting For every geographic atrocity committed by District 30, District 6 commits its own and more. District 30 split pre- cincts to gerrymander Democratic voters out of Republican precincts; District 6 did the same. See State's Exh. 9B (Tar- rant County, showing District 6 cuts). District 30 travels down a riverbed; District 6 follows the boundaries of a lake. District 30 combines various unrelated communities of inter- est within Dallas and its suburbs; District 6 combines rural, urban, and suburban communities. District 30 sends tenta- cles nearly 20 miles out from its core; District 6 is a tentacle, hundreds of miles long (as the candidate walks), and it has no core. The existence of the equally bizarre majority-white Dis- trict 6 makes the plurality's discussion of District 30's odd shape largely irrelevant. If anything, the similarities be- tween Districts 6 and 30 suggest that it is more likely than not that the incumbency considerations that led to the muta- tion of District 6 were the same considerations that forced District 30 to twist and turn its way through North Dallas.19 County, then flows back toward Fort Worth from the southwest for an- other bite at Republican voters near the heart of that city. As it does so, the district narrows in places to not much more than a football field in width. Finally, it heads back into the rural regions of its fifth county- Johnson-where it finally exhausts itself only 50 miles from its origin, but hundreds of "miles apart in distance and worlds apart in culture." Miller, 515 U. S., at 908 (describing a similar combined rural/urban district). 19 Seeking specific examples, the plurality makes much hay over a por- tion of Collin County located just over the county line north of Dallas. See ante, at 965, 971. There, District 30 excludes a portion of a precinct that voted Democratic in 1990, and maps "exactly onto the only area in the southern half of th[e] county with a [minority] percentage population in excess of 50%." Ante, at 965. The map to which the plurality refers, however, groups the minority percentage by precinct, and since precincts are defined by the district boundaries, it is no surprise that the district maps "exactly" onto the pre- cinct. See App. 153. (One might similarly argue that "District 30 maps exactly onto the only area in all of north Texas that is 50% black," but such a statement reveals little about the underlying demographics of spe- 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1021 Stevens, J., dissenting The political, rather than the racial, nature of District 30's gerrymander is even more starkly highlighted by comparing it with the districts struck down in Shaw II and Miller. District 30's black population is, for instance, far more con- centrated than the minority population in North Carolina's District 12. And in Miller, the Court made it clear that the odd shape of Georgia's Eleventh District was the result of a conscious effort to increase its proportion of minority popula- tions: It was, the Court found, " `exceedingly obvious' from the shape of the Eleventh District, together with the racial demographics, that the drawing of narrow land bridges to incorporate within the district outlying appendages contain- ing nearly 80% of the district's total black population was a deliberate attempt to bring black populations into the dis- trict." Miller, 515 U. S., at 917 (emphasis added; citation omitted). District 30 is the precise demographic converse of the dis- trict struck down in Miller. District 30, for example, has a compact core in South Dallas which contains 50% of the district population and nearly 70% of the district's total black population. Cf. ibid. Unlike the appendages to Geor- gia's District 11, the tentacles stretching north and west cific sections of the district.) The more telling maps are the census block maps, which demonstrate that the Collin County section of District 30 contains many more census blocks of less than 25% minority population than it does blocks that are more than 50% minority. See State's Exhs. 45 and 46 (Exh. 45 is reproduced, in part, as Appendix D, infra). Even if those majority-white blocks have relatively small populations, they were nonetheless included, suggesting that the creation of the district was not as single-mindedly focused on race as the Court and the District Court assume. Even more significant is the fact that the new precinct leaned over- whelmingly Democratic in the 1992 election, while the portion of the pre- cinct that was not included in District 30 voted overwhelmingly Republi- can. See State's Exh. 9B (Collin County). While the excluded portion of the 1990 precinct may have been dropped, in part, to help comply with the State's goals under the Voting Rights Act, it also involved a successful effort to maximize Democratic votes while avoiding Republican votes. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1022 BUSH v. VERA Stevens, J., dissenting from District 30 add progressively less in the way of popula- tion, and, more important for purposes of this inquiry, they actually reduce the proportional share of minorities in the district. See State's Exh. 33. For example: The worst offender, in the trained eye of the Court, may be the northern arm of the district that winds around the Park Cities and then up into Collin County. But that arm, which contains 22% of the population, is only 21% black, ibid.-a proportion essentially identical to the proportion of African-Americans in Dallas County as a whole.20 The plurality is certainly correct in pointing out that District 30's outlying reaches encompass some communities with high concentrations of minorities.21 It is implausible 20 See 861 F. Supp., at 1312 (black population in Dallas County is 362,130); Bureau of Census, Population and Housing Unit Counts 185 (Oct. 1993) (total population of Dallas County is 1,852,810). 21 Several responses to the plurality's specific examples are worth making, however. In Collin County, the plurality relies on the fact that the "combined African-American and Hispanic" population in the Collin County extremity of the northern appendage to District 30 is in excess of 50%. Ante, at 971. But District 30 was created with an eye to a majority-black population, rather than a majority-minority population, so the more relevant facts are that (i) African-Americans make up only 19.8% of the Collin County appendage, App. 331, (ii) those African-Americans consist of only two-tenths of 1% of the entire population in the district, ibid., and (iii) this appendage contains more majority-white census blocks than it does majority-minority census blocks, see State's Exh. 45. The plurality also points out that a small portion of one of the tenta- cles-the one that extends west into Tarrant County-contains an African-American majority. Ante, at 965. It would be implausible to claim, however, that race was the "predominant" reason that this commu- nity was included in District 30. First, the community had been part of Senator Johnson's state legislative district, see n. 17, supra; second, it also includes majority-white census blocks; and third, the total population in that portion of the district is less than 2,000 people. App. 331. Finally, and more important, the population of the entire western tentacle (at the tip of which is the Tarrant County community) is only 29% black, see State's Exh. 33-less than half the proportion of minorities in the core of the district. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1023 Stevens, J., dissenting to suggest, however, that an effort to "segregate" voters drove District 30 to collect those populations. After all, even the District Court noted that African-American voters immediately adjacent to the core of District 30 were in- tentionally excluded from the district "in order to protect incumbents." 861 F. Supp., at 1339 (emphasis added). Forced into Republican territory to collect Democratic votes, the district intentionally picked up some minority commu- nities (though far more majority-white communities). If it had not, the goal of creating a majority-black district would have been sacrificed to incumbency protection (the very sort of "predominance" of race over race-neutral factors that the plurality discredits). But unlike Georgia's District 11 and North Carolina's District 12, the reason that the district was there in the first place was not to collect minority commu- nities, but to collect population-preferably Democrats. It would, therefore, be fanciful to assert that the "several appendages" to District 30 were "drawn for the obvious," let alone the predominant, "purpose of putting black popu- lations into the district." Miller, 515 U. S., at 910.22 In sum, a fair analysis of the shape of District 30, like the equally bizarre shape of District 6, belies the notion that its shape was determined by racial considerations. 22 Indeed, if the "appendages" to District 30 reaching into neighboring counties were cut off, the proportion of African-Americans in the resulting district would actually increase. See App. 331. As presently consti- tuted, District 30 includes 566,217 people, of which 283,225 (or 50.02%) are African-American. If the Tarrant County and Collin County portions of the district were removed, the resulting district would have 557,218 peo- ple, of which 280,620 (or 50.36%) would be African-American. While the resulting district would not include the "zero deviation" necessary under Reynolds v. Sims, 377 U. S. 533 (1964), and its progeny, see n. 10, supra, the missing population could easily be acquired in majority-black census blocks adjacent to District 30's southern and eastern edge, thereby in- creasing the proportion of black population still further. Because the al- leged racial goals of the district could be achieved more effectively by making the district more compact, I simply do not comprehend how the plurality can conclude that the effort to create a majority-minority district "predominated" over other, race-neutral goals. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1024 BUSH v. VERA Stevens, J., dissenting Intent Perhaps conscious that noncompact congressional districts are the rule rather than the exception in Texas, the plurality suggests, ante, at 960­961, 969­970, that the real key is the direct evidence, particularly in the form of Texas' § 5 Voting Rights Act submissions and the person of then-State Senator Johnson, that the State expressed an intent to create these districts with a given "minimum percentage of the favored minority." 861 F. Supp., at 1309. Even if it were appro- priate to rest this test of dominance on an examination of the subjective motivation of individual legislators,23 or on 23 Testimony by individuals is relevant, but hardly dispositive evidence of collective motivations. See n. 9, supra. It may be true that the most important concern motivating Senator Johnson, the Chairman of the Sen- ate Districting Committee, was her desire to create the first Congressional District in the history of the State in which African-Americans were in the majority. Johnson never testified, however, that racial considerations were the sole concern motivating the changes to the shapes of the dis- tricts. See, e. g., App. 454­456 (certain areas that were minority commu- nities were assigned to Anglo incumbents because of incumbent power), id., at 459 ("[J]ust as 30 went looking for friendly territory regardless of color, [the incumbents] went looking for friendly territory as well regard- less of color"). Since this testimony was not only irrelevant to the § 2 proceedings but arguably harmful to her claim there that racial considera- tions had been taken into account, these admissions are particularly telling. To the extent that testimony of individual legislators is relevant, the following statements from the floor of the Texas House confirm that many legislators viewed these districts as political, not racial, gerrymanders: "This plan was drawn to protect incumbents. . . . "[I]n order to protect an incumbent Dallas congressman and an incum- bent Houston congressman, county lines were not respected, urban bound- aries were not respected, precinct boundaries were not respected." Id., at 374­375 (statement of Rep. Ogden). "With the adoption of this plan, you will have 8 Republican Congressmen out of 30. That's de facto regression and provides for less Republican representation in Washington, D. C. "Communities throughout the State are surgically split in what appears to be illogical, irrational and erratic pattern[s]. But if you look at election result data throughout the State, you'll find that these lines are very logi- 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1025 Stevens, J., dissenting testimony given in a legal proceeding designed to prove a conflicting conclusion,24 this information does little more than confirm that the State believed it necessary to comply with the Voting Rights Act. Given its reasonable understanding of its legal responsibilities, see supra, at 1007, the legislature acted to ensure that its goal of creating a majority-black dis- trict in Dallas County was not undermined by the changes made to accommodate District 30 to other, race-neutral dis- tricting principles. As the plurality admits, see ante, at 958, the intent to create majority-minority districts does not in itself trigger strict scrutiny; these admissions prove nothing more than that. See also Shaw II, ante, at 930­932 (Ste- vens, J., dissenting). Nonracial Factors: Community In an effort to provide a definitive explanation for the odd shape of the district, the State emphasized two factors: The cal and very rational. The lines have been drawn, dissecting communities very creatively in order to pack Republicans and maximize Democratic representation." Id., at 376 (statement of Rep. Gusendorf). See also id., at 377­380 (statement of Rep. Gusendorf illustrating the ger- rymandering process by reference to District 6, not a majority-minority district). These gerrymanders "d[o] not have to happen. It has nothing to do with fairness. It has nothing to do with minority representation because if we were really concerned about minority representation, we would have drawn this map in such a way that the minorities were considered and not simply to elect Democrats." Id., at 384 (statement of Rep. Hill). 24 It is ironic and slightly unfair for the plurality and District Court to use the State's § 5 submission and Congresswoman Johnson's testimony in a § 2 challenge to the congressional district as evidence against them in these cases. See, e. g., 861 F. Supp., at 1319­1321, 1338­1339; ante, at 969­970. Both of those proceedings required the State to assure the Attorney General and a federal court, respectively, that the State had adequately considered the interests of minority voters in the 1991 redis- tricting process. Under such circumstances, it is not at all surprising that the relevant declarant would limit his or her comments to the role that race played in the redistricting process, for other considerations were largely irrelevant (the District Court's opinion to the contrary notwith- standing, see 861 F. Supp., at 1339). 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1026 BUSH v. VERA Stevens, J., dissenting presence of communities of interest tying together the popu- lations of the district, and the role of incumbency protection. The District Court and the plurality improperly dismissed these considerations as ultimately irrelevant to the shape of the districts. First, the appellants presented testimony that the districts were drawn to align with certain communities of interest, such as land use, family demographics, and transportation corridors. See 861 F. Supp., at 1322­1323. Although the District Court recognized that these community characteris- tics amounted to accurate descriptions of District 30, id., at 1323, it dismissed them as irrelevant to the districting proc- ess, concluding that there was no evidence that "the Legisla- ture had these particular `communities of interest' in mind when drawing the boundaries of District 30." Ibid. The plurality concludes that appellants present no reason to dis- place that conclusion. Ante, at 966­967. I do not understand why we should require such evidence ever to exist. It is entirely reasonable for the legislature to rely on the experience of its members when drawing particu- lar boundaries rather than on clearly identifiable "evidence" presented by demographers and political scientists. Most of these representatives have been members of their communi- ties for years. Unless the Court intends to interfere in state political processes even more than it has already expressed an intent to do, I presume that it does not intend to require States to create a comprehensive administrative record in support of their redistricting process. State legislators should be able to rely on their own experience, not only pre- pared reports. To the extent that the presence of obvious communities of interest among members of a district explic- itly or implicitly guided the shape of District 30, it amounts to an entirely legitimate nonracial consideration.25 25 As Justice Ginsburg noted in her dissent in Miller, "ethnicity itself can tie people together" in communities of interest. 515 U. S., at 944; see also Rogers v. Lodge, 458 U. S. 613, 651 (1982) (Stevens, J., dissenting) 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1027 Stevens, J., dissenting Nonracial Factors: Incumbency The plurality admits that the appellants "present a . . . substantial case for their claim that incumbency protection rivaled race in determining the district's shape." Ante, at 967. Every individual who participated in the redistricting process knew that incumbency protection was a critical fac- tor in producing the bizarre lines and, as the plurality points out, ante, at 963­964, even the District Court recognized that this nearly exclusive focus on the creation of "safe" districts for incumbents was intimately related to the bizarre shape of district lines throughout the State. "[I]n Texas in 1991, many incumbent protection boundaries sabotaged traditional redistricting principles as they routinely divided counties, cities, neighborhoods, and regions. For the sake of maintaining or winning seats in the House of Representatives, Congressmen or would-be Congressmen shed hostile groups and poten- tial opponents by fencing them out of their districts. The Legislature obligingly carved out districts of appar- ent supporters of incumbents, . . . and then added ap- pendages to connect their residences to those districts. The final result seems not one in which the people select their representatives, but in which the representatives ("Whenever identifiable groups in our society are disadvantaged, they will share common political interests and tend to vote as a `bloc' "). Further- more, it may be that the very fact of racial bloc voting, a prerequisite to § 2 liability, see Thornburg v. Gingles, 478 U. S. 30, 51 (1986) (and, under the Court's recent jurisprudence, to the voluntary formation of a majority-minority district), demonstrates the presence of a minority com- munity. While communities based on race may merit a more skeptical review to ensure that a bond, rather than mere stereotyping, ties the community, see 861 F. Supp., at 1338, recognition of such a community in an electoral district certainly could, in certain circumstances, serve as a legitimate race-neutral explanation for particularly odd district shapes. By suggesting the contrary, I believe that the District Court erred. See ibid.; post, at 1060­1061 (Souter, J., dissenting). 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1028 BUSH v. VERA Stevens, J., dissenting have selected the people." 861 F. Supp., at 1334 (cita- tions and footnotes omitted). See also id., at 1335, n. 43. Despite this overwhelming evi- dence that incumbency protection was the critical motivating factor in the creation of the bizarre Texas districts, the Dis- trict Court reached the stunning conclusion that because the process was so "different in degree" from the "generalized, and legitimate, goal of incumbent and seniority protection" that this Court has previously recognized, it could not serve as a legitimate explanation for the bizarre boundaries of the congressional districts. Id., at 1334­1335. In dismissing incumbency protection once and for all, the District Court stated that "[i]ncumbent protection is a valid state interest only to the extent that it is not a pretext for unconstitutional racial gerrymandering." Id., at 1336. It is difficult to know where to begin to attack the misper- ceptions reflected in these conclusions,26 and the plurality's failure to do so seriously taints its evaluation of the relative importance of nonracial considerations in the creation of Dis- trict 30. The initial problem, of course, is that under the Court's threshold test as set forth in Miller, one must con- sider the role of incumbency protection before determining whether there is an "unconstitutional racial gerrymander." And because the ultimate focus in these gerrymandering cases is the claim that race was the "dominant and control- ling rationale in drawing [the] district lines," 515 U. S., at 913, a court must, in applying that test, consider a State's claim that a given race-neutral rationale controlled the cre- ation of those lines. See id., at 916 ("Where [compactness, contiguity,] or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can `defeat a claim that a district has been 26 The District Court's legal analysis was probably flawed in part be- cause its decision was issued before this Court announced its opinion in Miller. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1029 Stevens, J., dissenting gerrymandered on racial lines' "). Although a court may not like the State's explanation, that is no excuse for ignoring it. If some independent bar prevented the use of that race- neutral criterion, then the District Court might be in a posi- tion to object to the State's use of it. We have, however, affirmed that a State has an interest in incumbency protec- tion, see, e. g., ante, at 964­965 (opinion of O'Connor, J.); White v. Weiser, 412 U. S. 783, 791, 797 (1973), and also as- sured States that the Constitution does not require compact- ness, contiguity, or respect for political borders, see Shaw I, 509 U. S., at 647. While egregious political gerrymandering may not be particularly praiseworthy, see infra, at 1038­ 1040, it may nonetheless provide the race-neutral explana- tion necessary for a State to avoid strict scrutiny of the dis- trict lines where gerrymandering is the "dominant and controlling" explanation for the odd district shapes.27 The District Court's error had an apparently dispositive effect on its assessment of whether strict scrutiny should apply at all. Although aspects of our dispute with the plu- rality are "largely factual," ante, at 971, n., they arise not out of our disagreement with the District Court's credibility assessments, but out of that court's erroneous conclusion that the State's overwhelming reliance on this race-neutral factor was illegitimate and irrelevant to its evaluation of the factors involved in the shifting of this district's lines. A fair evalua- tion of the record made in light of appropriate legal stand- ards requires a conclusion very different from the District Court's. By following the District Court down its misdi- rected path, the plurality itself goes astray. 27 While it may be that the political gerrymandering in this case is "dif- ferent in degree" from that previously recognized, 861 F. Supp., at 1334, I do not believe that the reference in Shaw I and Miller to "traditional" districting principles, see Shaw I, 509 U. S., at 642; Miller, 515 U. S., at 916, was intended to prohibit a State from changing the process or policies underlying the complex negotiating process that is modern redistricting. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1030 BUSH v. VERA Stevens, J., dissenting Race as a Proxy Faced with all this evidence that politics, not race, was the predominant factor shaping the district lines, the plurality ultimately makes little effort to contradict appellants' asser- tions that incumbency protection was far more important in the placement of District 30's lines than race. See ante, at 967­969. Instead, it adopts a fallback position based on an argument far removed from even the "analytically distinct" claim set forth in Shaw I, 509 U. S., at 652. In it, the plural- ity suggests that even if the predominant reason for the bi- zarre features of the majority-minority districts was incum- bency protection, the State impermissibly used race as a proxy for determining the likely political affiliation of blocks of voters. See ante, at 968­971 (opinion of O'Connor, J.). The effect of this process, in all likelihood, was relatively unimportant to the overall shape of the district. A compari- son of the 1992 precinct results with a depiction of the pro- portion of black population in each census block reveals that Democratic-leaning precincts cover a far greater area than majority-black census blocks. Compare State's Exh. 9A with State's Exh. 45. One would expect the opposite effect if the single-minded goal of those drawing the districts was racial composition rather than political affiliation. At the very least, the maps suggest that the drawing of boundaries involves a demographic calculus far more complex than simple racial stereotyping. Furthermore, to the extent that race served as a proxy at all, it did so merely as a means of "fine tuning" borders that were already in particular locations for primarily political reasons. This "fine tuning" through the use of race is, of course, little different from the kind of fine tuning that could have legitimately occurred around the edges of a compact majority-minority district.28 I perceive no reason why a 28 The plurality expresses particular concern over the use of computer programs, particularly the availability of block-by-block racial data, and 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1031 Stevens, J., dissenting legitimate process-choosing minority voters for inclusion in a majority-minority district-should become suspect once nonracial considerations force district lines away from its core. Finally, I note that in most contexts racial classifications are invidious because they are irrational. For example, it is irrational to assume that a person is not qualified to vote or to serve as a juror simply because she has brown hair or brown skin. It is neither irrational, nor invidious, however, to assume that a black resident of a particular community is a Democrat if reliable statistical evidence discloses that 97% of the blacks in that community vote in Democratic primary elections. See Brief for United States 44. For that reason, the fact that the architects of the Texas plan sometimes ap- pear to have used racial data as a proxy for making political judgments seems to me to be no more "unjustified," ante, at 969 (opinion of O'Connor, J.), and to have no more constitu- tional significance, than an assumption that wealthy subur- banites, whether black or white, are more likely to be Repub- argues that the State's effort to "compil[e] detailed racial data," ante, at 967, is evidence of the controlling role of race in the computer-dominated process of redistricting. See ante, at 961­962; 861 F. Supp., at 1318­1319. It is worth noting, however, that the State made no particular "effort" to gather these data; it was included, along with similarly detailed infor- mation about sex, age, and income levels, in the data set provided by the Census Bureau and imported wholesale into the State's redistricting computers. Cf. Shaw, 861 F. Supp., at 457. Furthermore, even if the computer was used to fine tune the district lines to ensure that minority communities were included in District 30 (rather than individualized re- quests from candidates and their staffers on the basis of block-level data, see supra, at 1017­1018), such a technique amounts to little more than the use of a particularly efficient and accurate means of ensuring that the intended nature of the district was not undermined as incumbency protec- tion forced it out of a compact district. I do not suggest that the end can always justify the means, but if those means are no more invidious than the end itself, I do not understand why their use should affect the analysis. I would not condemn state legislation merely because it was based on accurate information. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1032 BUSH v. VERA Stevens, J., dissenting licans than Communists.29 Requiring the State to ignore the association between race and party affiliation would be no more logical, and potentially as harmful, as it would be to prohibit the Public Health Service from targeting African- American communities in an effort to increase awareness regarding sickle-cell anemia.30 Despite all the efforts by the plurality and the District Court, then, the evidence demonstrates that race was not, in all likelihood, the "predominant" goal leading to the creation of District 30. The most reasonable interpretation of the record evidence instead demonstrates that political consider- ations were. In accord with the presumption against inter- ference with a legislature's consideration of complex and competing factors, see n. 9, supra, I would conclude that the configuration of District 30 does not require strict scrutiny. 29 "A prediction based on a racial characteristic is not necessarily more reliable than a prediction based on some other group characteristic. Nor, since a legislator's ultimate purpose in making the prediction is political in character, is it necessarily more invidious or benign than a prediction based on other group characteristics. In the line-drawing process, racial, religious, ethnic, and economic gerrymanders are all species of political gerrymanders." Mobile v. Bolden, 446 U. S. 55, 88 (1980) (Stevens, J., concurring in judgment) (footnote omitted). To the extent that a political prediction based on race is incorrect, the voters have an entirely obvious way to ensure that such irrationality is not relied upon in the future: Vote for a different party. A legislator relying on racial demographics to ensure his or her election will learn a swift lesson if the presumptions upon which that reliance was based are incorrect. 30 I find it particularly ironic that the Court considers the use of race verboten in this benign context, while the Court just recently, on the basis of evidence that, inter alia, "[m]ore than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black," dismissed out of hand the Ninth Circuit's assumption that "people of all races commit all types of crimes." United States v. Armstrong, ante, at 469. The Ninth Circuit's conclusion, it seems to me, is a model of the sort of race-neutral decision- making that this Court insists should be a part of constitutional decision- making processes. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1033 Stevens, J., dissenting V The Houston districts present a closer question on the ap- plication of strict scrutiny. There is evidence that many of the same race-neutral factors motivating the zigzags of Dis- trict 30 were present at the creation (or recreation) of Dis- tricts 29 and 18. In contrast to District 30, however, there is also evidence that the interlocking shapes of the Houston dis- tricts were specifically, and almost exclusively, the result of an effort to create, out of largely integrated communities, both a majority-black and a majority-Hispanic district. For pur- poses of this opinion, then, I am willing to accept, arguendo, the plurality's conclusion that the Houston districts should be examined with strict scrutiny.31 Even so, the plurality errs by concluding that these districts would fail that test. The plurality begins with the perfectly obvious assump- tions that a State has a compelling interest in complying with § 2 of the Voting Rights Act and that Texas had a strong basis for believing that it would have violated that Act in 1991 if it did not create three new majority-minority dis- tricts.32 The plurality goes on to conclude, however, that because the final shape of these districts is not coextensive with the community that would form the core of a § 2 viola- tion, these districts would not be "narrowly tailored" to further that state interest. Ante, at 979. I respectfully disagree. Neither evidence nor insinuation suggests that the State in the redistricting process considered race for any reason 31 Although I conclude that no reasonable interpretation of the record would require the application of strict scrutiny to District 30, I believe for the reasons that follow that it, too, would survive strict scrutiny if it were to be subject to that level of review. 32 While I believe that the evidence supporting the State's conclusions in this regard is stronger than that suggested by the plurality or Justice Kennedy in his concurring opinion, I will simply assume, arguendo, as the plurality does, that the State had a reasonable fear of liability under § 2. See also supra, at 1007. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1034 BUSH v. VERA Stevens, J., dissenting other than as a means of accomplishing its compelling inter- est of creating majority-minority districts in accord with the Voting Rights Act. The goal was, by all accounts, achieved, for these districts would certainly avoid liability under § 2 of the Voting Rights Act.33 For reasons that continue to es- cape me, however, the plurality simply insists that the lack of compactness in the districts prevents them from being "narrowly tailored" solutions to the State's interests. The plurality uses two premises to reach its conclusion that compactness is required to meet the "narrow tailoring" requirement: (i) § 2 would not have been violated unless a reasonably compact majority-minority district could have been created; and (ii) nothing in § 2 requires the creation of a noncompact district. I have no quarrel with either propo- sition, but each falls far short of mandating the conclusion that the plurality draws from it. While a State can be liable for a § 2 violation only if it could have drawn a compact dis- trict and failed to do so, it does not follow that creating such a district is the only way to avoid a § 2 violation. See gener- ally Shaw II, ante, at 946­950 (Stevens, J., dissenting). The plurality admits that a State retains "a limited degree of leeway" in drawing a district to alleviate fears of § 2 liabil- ity, ante, at 977, but if there is no independent constitutional duty to create compact districts in the first place, and the plurality suggests none, there is no reason why noncompact districts should not be a permissible method of avoiding vio- lations of law. The fact that they might be unacceptable ju- dicial remedies does not speak to the question whether they 33 Even if the Court in Shaw II is correct in asserting that North Caroli- na's District 12 would not have allowed the State to avoid liability under § 2, see ante, at 916­918, no such plausible argument could be made in these cases. The core of District 30, for instance, contains more than half of all the African-American population in the district, and coincides pre- cisely with the heart of the compact community that the State reasonably believes would give rise to a § 2 violation were it not placed in a majority- minority district. The same facts are true with respect to the Houston districts. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1035 Stevens, J., dissenting may be acceptable when adopted by a state legislature. Be- cause these districts satisfy the State's compelling interest and do so in a manner that uses racial considerations only in a way reasonably designed to ensure such a satisfaction, I conclude that the districts are narrowly tailored. VI I cannot profess to know how the Court's developing juris- prudence of racial gerrymandering will alter the political and racial landscape in this Nation-although it certainly will alter that landscape. As the Court's law in this area has developed, it has become ever more apparent to me that the Court's approach to these cases creates certain perverse incentives and (I presume) unanticipated effects that serve to highlight the essentially unknown territory into which it strides. Because I believe that the social and political risks created by the Court's decisions are not required by the Con- stitution, my first choice would be to avoid the preceding analysis altogether, and leave these considerations to the political branches of our Government. The first unintended outcome of the legal reasoning in Shaw II and this case is the very result that those decisions seek to avoid: the predominance of race in the districting process, over all other principles of importance. Given the Court's unwillingness to recognize the role that race-neutral districting principles played in the creation of the bizarrely shaped districts in both this case and Shaw II, it now seems clear that the only way that a State can both create a majority-minority district and avoid a racial gerrymander is by drawing, "without much conscious thought," ante, at 967 (opinion of O'Connor, J.), and within the "limited degree of leeway" granted by the Court, ante, at 977, the precise com- pact district that a court would impose in a successful § 2 challenge. See post, at 1066­1067 (Souter, J., dissenting). After the Court's decisions today, therefore, minority voters can make up a majority only in compact districts, whether 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1036 BUSH v. VERA Stevens, J., dissenting intentionally or accidentally drawn, while white voters can be placed into districts as bizarre as the State desires. The great irony, of course, is that by requiring the State to place the majority-minority district in a particular place and with a particular shape, the district may stand out as a stark, placid island in a sea of oddly shaped majority-white neighbors. See Karlan, Still Hazy After All These Years: Voting Rights in the Post-Shaw Era, 26 Cumberland L. Rev. 287, 309 (1995­1996). The inviolable sanctity of the § 2- eligible districts will signal in a manner more blatant than the most egregious of these racial gerrymanders that "a mi- nority community sits here: Interfere with it not." The Court-imposed barriers limiting the shape of the district will interfere more directly with the ability of minority voters to participate in the political process than did the oddly shaped districts that the Court has struck down in recent cases. Unaffected by the new racial jurisprudence, majority-white communities will be able to participate in the districting process by requesting that they be placed into certain dis- tricts, divided between districts in an effort to maximize rep- resentation, or grouped with more distant communities that might nonetheless match their interests better than commu- nities next door. By contrast, none of this political maneu- vering will be permissible for majority-minority districts, thereby segregating and balkanizing them far more effec- tively than the districts at issue here, in which they were manipulated in the political process as easily as white voters. This result, it seems to me, involves "discrimination" in a far more concrete manner than did the odd shapes that so offended the Court's sensibilities in Miller, Shaw II, and these cases. In light of this Court's recent work extolling the impor- tance of state sovereignty in our federal scheme, cf. Semi- nole Tribe of Fla. v. Florida, ante, p. 44, I would have ex- pected the Court's sensibilities to steer a course rather more deferential to the States than the one that it charts with its 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1037 Stevens, J., dissenting decisions today. As we have previously noted, "[e]lectoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judg- ment necessary to balance competing interests." Miller, 515 U. S., at 915; see also post, at 1047­1048 (Souter, J., dis- senting). The record in these cases evidences the "complex interplay of forces that enter a legislature's redistricting calculus," 515 U. S., at 915­916, and the Court's failure to respect those forces demonstrates even less respect for the legislative process than I would have expected after the decision in Miller. The results are not inconsequential. After Miller and to- day's decisions, States may find it extremely difficult to avoid litigation flowing from decennial redistricting. On one hand, States will risk violating the Voting Rights Act if they fail to create majority-minority districts. If they create those districts, however, they may open themselves to liability under Shaw and its progeny. See Miller, 515 U. S., at 949 (Ginsburg, J., dissenting). Perhaps States will simply avoid the problem by abandoning voluntary compliance with § 2 of the Voting Rights Act altogether. See Shaw I, 509 U. S., at 672 (White, J., dissenting); post, at 1063­1064 (Sou- ter, J., dissenting).34 This result would not necessarily bring peace to redistricting, for there is no guarantee that districts created by court order to comply with § 2 will be immune from attack under Shaw; in both Florida and Illinois, for instance, that very sort of schizophrenic second-guessing has already occurred. See King v. State Bd. of Elections, 34 The difficulty of balancing between these competing legal require- ments will only be exacerbated by the ability of litigants (and courts) to use evidence proffered in defense by the State or its actors in one context as evidence against the State in another. See n. 24, supra. While there is nothing wrong with using prior inconsistent statements (to the extent that they really are inconsistent), States will be all the more unwilling to enter into the process at all given the certainty that they will be subject to suits in which evidence offered in one as defense will be fodder for the plaintiffs in another. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1038 BUSH v. VERA Stevens, J., dissenting No. 95­C­827, 1996 WL 130439 (ND Ill., Mar. 15, 1996); John- son v. Mortham, 926 F. Supp. 1460 (ND Fla. 1996). Given the difficulty of reconciling these competing legal responsi- bilities, the political realities of redistricting, and the cost of ongoing litigation, some States may simply step out of the redistricting business altogether, citing either frustration or hopes of getting a federal court to resolve the issues defini- tively in a single proceeding. See, e. g., Johnson v. Miller, 922 F. Supp. 1556, 1559 (SD Ga. 1995) (after remand from Miller, Georgia Legislature abdicated its redistricting re- sponsibilities to Federal District Court); post, at 1064 (Sou- ter, J., dissenting) (noting the likely "vacuum of responsibil- ity" at the state level). Regardless of the route taken by the States, the Court has guaranteed that federal courts will have a hand-and perhaps the only hand-in the "abrasive task of drawing dis- trict lines." Wells v. Rockefeller, 394 U. S. 542, 553 (1969) (White, J., dissenting). Given the uniquely political nature of the redistricting process, I fear the impact this new role will have on the public's perception of the impartiality of the Federal Judiciary. I can only reiterate the Court's cau- tionary admonition, issued over two decades ago, that "[i]n fashioning a reapportionment plan or in choosing among plans, a district court should not pre-empt the legislative task nor `intrude upon state policy any more than neces- sary.' " White v. Weiser, 412 U. S., at 795 (citing Whitcomb v. Chavis, 403 U. S. 124, 160 (1971)). I do not wish to leave the impression that decisions of the Court from Shaw I to the present are focusing on entirely nonexistent problems. I merely believe that the Court has entirely misapprehended the nature of the harm that flows from this sort of gerrymandering. Rather than attach blameworthiness to a decision by the majority to share polit- ical power with the victims of past discriminatory practices, the Court's real concern should be with the more significant harms that flow from legislative decisions that "serve no 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1039 Stevens, J., dissenting purpose other than to favor one segment-whether racial, ethnic, religious, economic, or political-that may occupy a position of strength at a particular point in time, or to disadvantage a politically weak segment of the community." Karcher v. Daggett, 462 U. S. 725, 748 (1983) (Stevens, J., concurring). These cases are as good an illustration of such self-serving behavior on the part of legislators as any-but not with respect to racial gerrymandering. The real prob- lem is the politically motivated gerrymandering that oc- curred in Texas. Many of the oddest twists and turns of the Texas districts would never have been created if the legisla- ture had not been so intent on protecting party and incum- bents. See also Shaw II, ante, at 937­938 (Stevens, J., dis- senting) (noting the same influences behind the bizarre shape of North Carolina's District 12). By minimizing the critical role that political motives played in the creation of these districts, I fear that the Court may inadvertently encourage this more objectionable use of power in the redistricting process.35 Legislatures and elected representatives have a responsibility to behave in a way that incorporates the "elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially." Cleburne, 473 U. S., at 452. That responsibility is not discharged when legislatures permit and even encourage incumbents to use their positions as public servants to protect themselves and their parties rather than the interests of their constituents. See Karcher v. Daggett, 462 U. S., at 748, 754 (Stevens, J., concurring). If any lines in Texas are worth straightening, 35 The contrary is also possible, of course. Perhaps the burgeoning role of federal courts in this process, along with their relative isolation from the political pressures that motivate legislatures to bend district lines, will mean that there will actually be fewer politically gerrymandered districts. Regardless of whether political gerrymanders are more or less prevalent after our decisions today, my point is the same: The Court has its hierar- chy of values upside down. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1040 BUSH v. VERA Stevens, J., dissenting it is those that were twisted to exclude, not those altered to include.36 VII The history of race relations in Texas and throughout the South demonstrates overt evidence of discriminatory voting practices lasting through the 1970's. Brischetto, Richards, Davidson, & Grofman, Texas, in Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965­1990, pp. 233­248 (C. Davidson & B. Grofman eds. 1994). Even in recent years, Texans have elected only two black candidates to statewide office; majority-white Texas districts have never elected a minority to either the State Senate or the United States Congress. Brief for Appellants in No. 94­ 806, p. 53. One recent study suggests that majority-white districts throughout the South remain suspiciously unlikely 36 My view that a State may act unconstitutionally by gerrymandering to minimize the influence of a group on the political process is consistent with the belief that there is no constitutional error in the drawing of dis- trict lines based on benign racial considerations. As Justice Powell noted in his opinion in Davis v. Bandemer, 478 U. S., at 165, there is a sharp distinction between "gerrymandering in the `loose' sense" (i. e., the draw- ing of district lines to advance general political and social goals), and "ger- rymandering that amounts to unconstitutional discrimination" (i. e., the drawing of district lines for the sole purpose of " `occupy[ing] a position of strength at a particular time, or to disadvantage a politically weak seg- ment of the community,' " id., at 164 (citing Karcher, 462 U. S., at 748 (Stevens, J., concurring)). See also 478 U. S., at 125, n. 9 ("[A] preference for nonpartisan as opposed to partisan gerrymanders . . . merely recog- nizes that nonpartisan gerrymanders in fact are aimed at guaranteeing rather than infringing fair group representation"). While I believe that allegations of discriminatory intent and impact, if proved, should give rise to a constitutional violation, Shaw, Miller, and these cases all involve alle- gations of both impact and intent that are far more diffuse than the allega- tions to which we have traditionally directed our most rigorous review. See Shaw II, ante, at 921­923 (Stevens, J., dissenting); cf. Gomillion v. Lightfoot, 364 U. S. 339 (1960). Limiting the constitutional ban on gerry- mandering to those claims alleging that a specific group (as opposed to every group) has been harmed would be far more consistent with prior precedent than the Court's still-developing jurisprudence of racial gerrymandering. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1041 Stevens, J., dissenting to elect black representatives. Davidson & Grofman, The Effect of Municipal Election Structure on Black Represen- tation in Eight Southern States, in Quiet Revolution in the South, at 344. And nationwide, fewer than 15 of the hundreds of legislators that have passed through Congress since 1950 have been black legislators elected from majority- white districts.37 In 1994, for example, 36 of the Nation's 39 black Representatives were elected from majority-minority districts, while only 3 were elected from majority-white districts.38 See post, at 1050­1051 (Souter, J., dissenting). Perhaps the state of race relations in Texas and, for that matter, the Nation, is more optimistic than might be ex- pected in light of these facts. If so, it may be that the plurality's exercise in redistricting will be successful. Per- haps minority candidates, forced to run in majority-white districts, will be able to overcome the long history of stereo- typing and discrimination that has heretofore led the vast majority of majority-white districts to reject minority can- didacies. Perhaps not. I am certain only that bodies of elected federal and state officials are in a far better position than anyone on this Court to assess whether the Nation's long history of discrimination has been overcome, and that nothing in the Constitution requires this unnecessary in- trusion into the ability of States to negotiate solutions to political differences while providing long-excluded groups the opportunity to participate effectively in the democratic process. I respectfully dissent. [Appendixes to opinion of Stevens, J., follow this page.] 37 Compare 51 Congressional Quarterly 10 (1993) (list of African- Americans who have served in Congress through the end of 1992) and Supplement to 52 Congressional Quarterly 10 (Nov. 12, 1994) (listing mi- norities in the 104th Congress) with biyearly publications of The Almanac of American Politics (published 1975-present). 38 D. Bositis, Joint Center for Political and Economic Studies, African- Americans & the 1994 Midterms 22 (rev. May 1995). Fifteen black candi- dates ran for office in majority-white districts. Ibid. 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1042 BUSH v. VERA Appendix A to opinion of Stevens, J. APPENDIX A TO OPINION OF STEVENS, J. TEXAS CONGRESSIONAL DISTRICT 3 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1043 Appendix B to opinion of Stevens, J. APPENDIX B TO OPINION OF STEVENS, J. TEXAS CONGRESSIONAL DISTRICT 6 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT 1044 BUSH v. VERA Appendix C to opinion of Stevens, J. APPENDIX C TO OPINION OF STEVENS, J. TEXAS CONGRESSIONAL DISTRICT 25 APPENDIX D TO OPINION OF STEVENS, J. DALLAS-FORT WORTH AREA CONGRESSIONAL DISTRICTS After 1991 Redistricting Before 1991 Redistricting # = Incumbent Residence 517us3$68i 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1045 Souter, J., dissenting Justice Souter, with whom Justice Ginsburg and Justice Breyer join, dissenting. When the Court devises a new cause of action to enforce a constitutional provision, it ought to identify an injury dis- tinguishable from the consequences of concededly constitu- tional conduct, and it should describe the elements necessary and sufficient to make out such a claim. Nothing less can give notice to those whose conduct may give rise to liability or provide standards for courts charged with enforcing the Constitution. Those principles of justification, fair notice, and guidance have never been satisfied in the instance of the action announced three Terms ago in Shaw v. Reno, 509 U. S. 630 (1993) (Shaw I), when a majority of this Court decided that a State violates the Fourteenth Amendment's Equal Protection Clause by excessive consideration of race in draw- ing the boundaries of voting districts, even when the result- ing plan does not dilute the voting strength of any voters and so would not otherwise give rise to liability under the Fourteenth or Fifteenth Amendments, or under the Voting Rights Act. Far from addressing any injury to members of a class sub- jected to differential treatment, the standard presupposition of an equal protection violation, Shaw I addressed a putative harm subject to complaint by any voter objecting to an unto- ward consideration of race in the political process. Al- though the Court has repeatedly disclaimed any intent to go as far as to outlaw all conscious consideration of race in districting, after three rounds of appellate litigation seeking to describe the elements and define the contours of the Shaw cause of action, a helpful statement of a Shaw claim still eludes this Court. This is so for reasons that go to the conceptual bone. The result of this failure to provide a practical standard for distinguishing between the lawful and unlawful use of race has not only been inevitable confusion in statehouses and courthouses, but a consequent shift in responsibility for 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1046 BUSH v. VERA Souter, J., dissenting setting district boundaries from the state legislatures, which are invested with front-line authority by Article I of the Con- stitution, to the courts, and truly to this Court, which is left to superintend the drawing of every legislative district in the land. Today's opinions do little to solve Shaw's puzzles or return districting responsibility to the States. To say this is not to denigrate the importance of Justice O'Connor's position in her separate opinion, ante, at 990­992, that compliance with § 2 of the Voting Rights Act is a compelling state interest; her statement takes a very significant step toward alleviating apprehension that Shaw is at odds with the Voting Rights Act. It is still true, however, that the combined plurality, minority, and Court opinions do not ultimately leave the law dealing with a Shaw claim appreciably clearer or more man- ageable than Shaw I itself did. And to the extent that some clarity follows from the knowledge that race may be consid- ered when reasonably necessary to conform to the Voting Rights Act, today's opinions raise the specter that this osten- sible progress may come with a heavy constitutional price. The price of Shaw I, indeed, may turn out to be the practical elimination of a State's discretion to apply traditional dis- tricting principles, widely accepted in States without racial districting issues as well as in States confronting them. As the flaws of Shaw I persist, and as the burdens placed on the States and the courts by Shaw litigation loom larger with the approach of a new census and a new round of redis- tricting, the Court has to recognize that Shaw's problems result from a basic misconception about the relation between race and districting principles, a mistake that no amount of case-by-case tinkering can eliminate. There is, therefore, no reason for confidence that the Court will eventually bring much order out of the confusion created by Shaw I, and because it has not, in any case, done so yet, I respectfully dissent. 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1047 Souter, J., dissenting I As its text indicates and our cases have necessarily and repeatedly recognized,1 Article I of the Constitution places responsibility for drawing voting districts on the States in the first instance. See Art. I, § 2, cl. 1 ("The House of Rep- resentatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legis- lature"); Art. I, § 4, cl. 1 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regu- lations"). The Court has nonetheless recognized limits on state districting autonomy when it could discern a strong constitutional justification and a reasonably definite standard for doing so, as, for example, in announcing the numerical requirement of one person, one vote, see Reynolds v. Sims, 377 U. S. 533 (1964).2 But the Court has never ignored the 1 See, e. g., Growe v. Emison, 507 U. S. 25, 34 (1993) ("[T]he Constitution leaves with the States primary responsibility for apportionment of their federal congressional and state legislative districts") (citing U. S. Const., Art. I, § 2); Voinovich v. Quilter, 507 U. S. 146, 156 (1993); Reynolds v. Sims, 377 U. S. 533, 586 (1964). 2 Even in the no longer controversial instance of the one-person, one- vote rule, the adequacy of justification and standard was subject to sharp dispute, and some of the Court's best minds expressed principled hesita- tion to go even this far into what has been called the political thicket, see id., at 615 (Harlan, J., dissenting) ("The Court's elaboration of its new `constitutional' doctrine indicates how far-and how unwisely-it has strayed from the appropriate bounds of its authority. The consequence of today's decision is that in all but the handful of States which may al- ready satisfy the new requirements the local District Court or, it may be, the state courts, are given blanket authority and the constitutional duty to supervise apportionment of the State Legislatures. It is difficult to imagine a more intolerable and inappropriate interference by the judici- ary with the independent legislatures of the States"); Baker v. Carr, 369 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1048 BUSH v. VERA Souter, J., dissenting Constitution's commitment of districting responsibility to the political branches of the States and has accordingly assumed over the years that traditional districting principles widely accepted among States represented an informal baseline of acceptable districting practices. We have thus accorded substantial respect to such traditional principles (as those, for example, meant to preserve the integrity of neighborhood communities, to protect incumbents, to follow existing politi- cal boundaries, to recognize communities of interest, and to achieve compactness and contiguity); we have seen these objectives as entirely consistent with the Fourteenth and Fifteenth Amendments' demands. See, e. g., id., at 578 ("A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme"); White v. Weiser, 412 U. S. 783, 797 (1973) ("[T]he District Court did not suggest or hold that the legislative policy of districting so as to pre- serve the constituencies of congressional incumbents was un- constitutional or even undesirable"); Voinovich v. Quilter, 507 U. S. 146, 156 (1993) ("Because the States . . . derive their reapportionment authority . . . from independent provisions of state and federal law, the federal courts are bound to re- spect the States' apportionment choices unless those choices contravene federal requirements") (internal quotation marks omitted; citation omitted). The fundamental tenet underlying most of these constitu- tionally unobjectionable principles (respect for communities of interest or neighborhoods, say) is that voting is more than U. S. 186, 267 (1962) (Frankfurter, J., dissenting) ("The Court's authority- possessed of neither the purse nor the sword-ultimately rests on sus- tained public confidence in its moral sanction. Such feeling must be nour- ished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements"). 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1049 Souter, J., dissenting an atomistic exercise.3 Although it is the law of the Consti- tution that representatives represent people, not places or things or particular interests, Reynolds, supra, at 562, the notion of representative democracy within the federalist framework presumes that States may group individual vot- ers together in a way that will let them choose a represen- tative not only acceptable to individuals but ready to repre- sent widely shared interests within a district. Aleinikoff & Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 Mich. L. Rev. 588, 601 (1993) ("It is only as collective partisans of the same political prefer- ence-whether that preference is defined by party or race or any other measure-that voters can assert their right to meaningful participation in the political process"). Hence, in respecting the States' implementation of their own, tra- ditional districting criteria, the Court has recognized the basically associational character of voting rights in a repre- sentative democracy. 3 As Professor Issacharoff notes, our vote-dilution cases acknowledged that "the right to cast an effective ballot implied more than simply the equal weighting of all votes . . . . To be effective, a voter's ballot must stand a meaningful chance of effective aggregation with those of like- minded voters to claim a just share of electoral results. For this reason, any sophisticated right to genuinely meaningful electoral participation must be evaluated and measured as a group right . . . ." Issacharoff, Groups and the Right to Vote, 44 Emory L. J. 869, 883 (1995); see also Davidson, The Recent Revolution in Voting Rights Law Affecting Racial and Language Minorities, in Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965­1990, p. 23 (C. Davidson & B. Grofman eds. 1994) ("Ethnic or racial vote dilution takes place when a majority of voters, by bloc voting for its candidates in a series of elections, systematically prevents an ethnic minority from electing most or all of its preferred can- didates . . . . Vote dilution not only can deprive minority voters of the important symbolic achievement of being represented by preferred mem- bers of their own group, it can deprive them of a committed advocate in councils of government . . . [and] of the substantial benefits that govern- ment bestows . . ."). 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1050 BUSH v. VERA Souter, J., dissenting A Accordingly, before Shaw I, the Court required evidence of substantial harm to an identifiable group of voters to justify any judicial displacement of these traditional district- ing principles. Such evidence existed in Reynolds v. Sims, supra, when the disparate weighting of votes was held un- constitutional, and it was present again when the Court rec- ognized the unconstitutional consequences of vote dilution, see Whitcomb v. Chavis, 403 U. S. 124 (1971); White v. Regester, 412 U. S. 755 (1973). In the one case, the harm was mathematically identifiable; in the other, the arithmetic provided powerful circumstantial evidence of the impossibil- ity of political success for the chosen candidate of a racial and numerical minority in an area with pervasive racial-bloc voting. In both cases, the complainants were from an easily identified group of voters; and even in cases of racial vote- dilution claims, which were conceptually more difficult to state than the principle of one person, one vote, there were readily recognized examples of the harm in question. In- deed, even when one acknowledged that voters would be served by a representative not of their own race and that the Constitution guaranteed no right to pick a winner, see Whitcomb, supra, at 153­155, it was impossible to see mere happenstance in the facts that the American voting-age pop- ulation was 10.5% black, but the Congress that assembled in 1981 had only 17 black representatives out of 435 and no black senator. Statistical Abstract of the United States, 1982­83, p. 490 (103d ed. 1982) (Table 802); Black Americans: A Statistical Sourcebook 142 (L. Hornor ed. 1995) (Table 4.02); see also Parker, The Damaging Consequences of the Rehnquist Court's Commitment to Color-Blindness Versus Racial Justice, 45 Am. U. L. Rev. 763, 770­771 (1996) (observ- ing that "[p]rior to the latest round of redistricting after the 1990 Census, . . . [b]lacks, who constitute 11.1% of the nation's voting age population, made up only 4.9% of the members of Congress"). The conclusion was inescapable that what we 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1051 Souter, J., dissenting know of as intentional vote dilution accounted for this aston- ishing fact,4 just as it is equally inescapable that remedies for vote dilution (and hedges against its reappearance) in the form of majority-minority districts account for the fact that the 104th Congress showed an increase of 39 black Members over the 1981 total. Minorities in Congress, 52 Cong. Q., Supplement to No. 44, p. 10 (Nov. 12, 1994); see also Parker, supra, at 771 (noting "a fifty percent increase in the number of black members of Congress").5 4 See Pildes, The Politics of Race, 108 Harv. L. Rev. 1359, 1369 (1995) (reviewing Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965­1990 (C. Davidson & B. Grofman eds. 1994)) (noting that studies of Southern States demonstrate that, as a result of racial-bloc voting, "the probability of a district's electing a Black representative was less than 1% regardless of a district's median family income, its percentage of high school graduates; its proportion of residents who were elderly, urban, foreign-born, or who had been residents of the state for more than five years; or the region of the country in which the district was located"); id., at 1375 (finding similar results nationwide). There is, of course, reason to hope that conditions are improving. See infra, at 1076 (discussing elections in which crossover voting favors minority incumbents and in which racial issues have not played a significant role in the outcome). As I discuss in detail in Part IV, infra, I believe that these improvements may be attributed in large part to the effect of the Voting Rights Act, and thus to our willingness to allow race-conscious districting in certain situations. 5 I recognize, of course, that elsewhere we have imposed prohibitions on the consideration of race, but contexts are crucial in determining how we define "equal opportunity." Consider our decisions on peremptory jury challenges. There, as in politics, one race may not have had a fair shake from the other. But the differences between jury decisionmaking and political decisionmaking are, I believe, important ones. Politics includes choices between different sets of social values, choices that may ultimately turn on the ability of a particular group to enforce its demands through the ballot box. Jury decisionmaking is defined as a neutral process, the impartial application of law to a set of objectively discovered facts. To require racial balance in jury selection would risk redefining the jury's role. Without denying the possibility that race, especially as an imperfect proxy for experience, makes a difference in jury decisionmaking (and, in some cases, legitimately so), it seems to me that the better course is to 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1052 BUSH v. VERA Souter, J., dissenting Before Shaw I, we not only thus limited judicial interfer- ence with state districting efforts to cases of readily demon- strable harm to an identifiable class of voters, but we also confined our concern with districting to cases in which we were capable of providing a manageable standard for courts to apply and for legislators to follow. Within two years of holding in Baker v. Carr, 369 U. S. 186 (1962), that malappor- tionment was a justiciable issue, "the Court recognized that its general equal protection jurisprudence was insufficient for the task and announced an increasingly rigid, simple to apply, voting-specific mandate of equipopulousity." Karlan, Still Hazy After All These Years: Voting Rights in the Post- Shaw Era, 26 Cumberland L. Rev. 287, 299 (1996) (herein- after Karlan, Post-Shaw Era). Likewise, although it is quite true that the common definition of a racial vote-dilution injury ("less opportunity . . . to participate in the political process and to elect representatives . . . ," 42 U. S. C. § 1973(b)) is no model of concrete description, the Court has identified categories of readily comprehensible evidence bearing on the likelihood of such an injury, including facts about size of minority population, quantifiable indications of political cohesiveness and bloc voting, historical patterns of ensure a fair shake by denying each side the right to make race-based selections. The cost of the alternative is simply too great. It is an en- tirely different matter, however, to recognize that racial groups, like all other groups, play a real and legitimate role in political decisionmaking. It involves nothing more than an acknowledgment of the reality that our concepts of common interest, geography, and personal allegiances are in many places simply too bound up with race to deny some room for a theory of representative democracy allowing for the consideration of racially con- ceived interests. A majority of the Court has never disagreed in principle with this position. See, e. g., Shaw I, 509 U. S. 630, 642 (1993) (noting that race-conscious redistricting is not always unconstitutional); Miller v. Johnson, 515 U. S. 900, 928­929 (1995) (O'Connor, J., concurring) (consid- eration of race in the redistricting process does not always violate the Constitution); ante, at 958 (opinion of O'Connor, J.) (noting that strict scrutiny does "not apply merely because redistricting is performed with consciousness of race"). 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1053 Souter, J., dissenting success or failure of favored candidates, and so on. See, e. g., Thornburg v. Gingles, 478 U. S. 30 (1986); White v. Regester, 412 U. S., at 766­770. The particularity of this evidence goes far to separate victims of political "inequality" from those who just happened to support losing candidates. B Shaw I, however, broke abruptly with these standards, in- cluding the very understanding of equal protection as a prac- tical guarantee against harm to some class singled out for disparate treatment. Whereas malapportionment measur- ably reduces the influence of voters in more populous dis- tricts, and vote dilution predestines members of a racial mi- nority to perpetual frustration as political losers, what Shaw I spoke of as harm is not confined to any identifiable class singled out for disadvantage. See Shaw v. Hunt, ante, at 923­925, 928 (Shaw II) (Stevens, J., dissenting) (noting the absence of a customary disadvantaged class and describing the Shaw I cause of action as a substantive due process, rather than an equal protection, claim). If, indeed, what Shaw I calls harm is identifiable at all in a practical sense, it would seem to play no favorites, but to fall on every citizen and every representative alike. The Court in Shaw I ex- plained this conception of injury by saying that the forbidden use of race "reinforces the perception that members of the same racial group . . . think alike, share the same political interests, and will prefer the same candidates at the polls," and that it leads elected officials "to believe that their pri- mary obligation is to represent only the members of that group, rather than their constituency as a whole." Shaw I, 509 U. S., at 647­648. This injury is probably best under- stood as an "expressive harm," that is, one that "results from the idea or attitudes expressed through a governmental action, rather than from the more tangible or material conse- quences the action brings about." Pildes & Niemi, Expres- sive Harms, "Bizarre Districts," and Voting Rights: Evaluat- 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1054 BUSH v. VERA Souter, J., dissenting ing Election-District Appearances after Shaw v. Reno, 92 Mich. L. Rev. 483, 506­507 (1993); see also id., at 493 ("The theory of voting rights [that Shaw I] endorses centers on the perceived legitimacy of structures of political representation, rather than on the distribution of actual political power be- tween racial or political groups"). To the extent that racial considerations do express such notions, their shadows fall on majorities as well as minorities, whites as well as blacks, the politically dominant as well as the politically impotent. Thus, as an injury supposed to be barred by the Equal Pro- tection Clause, this subject of the "analytically distinct" cause of action created by Shaw I, supra, at 652, bears vir- tually no resemblance to the only types of claims for gerry- mandering we had deemed actionable following Davis v. Bandemer, 478 U. S. 109 (1986), those involving districting decisions that removed an identifiable class of disfavored voters from effective political participation. See, e. g., Gomillion v. Lightfoot, 364 U. S. 339 (1960); Thornburg v. Gingles, supra.6 Just as the logic of traditional equal protection analysis is at odds with Shaw's concept of injury, so the Court's rhetoric of racially motivated injury is inapposite to describe the con- sideration of race that it thinks unreasonable. Although the Court used the metaphor of "political apartheid" as if to refer to the segregation of a minority group to eliminate its asso- ciation with a majority that opposed integration, Shaw I, supra, at 647, talk of this sort of racial separation is not on point here. The de jure segregation that the term "political 6 Leaving aside the question whether such a catholic injury can be a violation of the Equal Protection Clause, there still might be a use of race that harms all district voters because it is used to an unreasonable degree. But see Valley Forge Christian College v. Americans United for Separa- tion of Church and State, Inc., 454 U. S. 464, 489 (1982). But the Court has never succeeded in identifying how much is too much, having adopted a "predominant purpose" test that amounts to a practical repudiation of any hope of devising a workable standard. See Part I­C, infra. 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1055 Souter, J., dissenting apartheid" brings to mind is unconstitutional because it em- phatically implies the inferiority of one race. See Brown v. Board of Education, 347 U. S. 483, 494 (1954) ("To separate [minority children] from others of similar age and qualifica- tions solely because of their race generates a feeling of inferi- ority as to their status in the community"). Shaw I, in con- trast, vindicated the complaint of a white voter who objected not to segregation but to the particular racial proportions of the district. See Karlan, Our Separatism? Voting Rights as an American Nationalities Policy, 1995 U. Chi. Legal Forum 83, 94 (hereinafter Karlan, Our Separatism) (noting the irony of using the term "apartheid" to describe what are "among the most integrated districts in the country"). Whatever this district may have symbolized, it was not "apartheid." Nor did the proportion of its racial mixture reflect any purpose of racial subjugation, the district in ques- tion having been created in an effort to give a racial minority the same opportunity to achieve a measure of political power that voters in general, and white voters and members of eth- nic minorities in particular, have enjoyed as a matter of course. In light of a majority-minority district's purpose to allow previously submerged members of racial minorities into the active political process, this use of race cannot plau- sibly be said to affect any individual or group in any sense comparable to the injury inflicted by de jure segregation. It obviously conveys no message about the inferiority or out- sider status of members of the white majority excluded from a district. And because the condition addressed by creating such a district is a function of numbers, the plan implies nothing about the capacity or value of the minority to which it gives the chance of electoral success. Added to the anomalies of Shaw I 's idea of equal protection injury and the rhetoric of its descriptions, there is a further conceptual inadequacy in Shaw I. Whereas it defines injury as the reinforcement of the notion that members of a racial group will prefer the same candidates at the polls, the imme- 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1056 BUSH v. VERA Souter, J., dissenting diate object of the constitutional prohibition against the in- tentional dilution of minority voting strength is to protect the right of minority voters to make just such a preference effective. There would, for example, be no vote dilution by virtue of racial-bloc voting unless voters of a racial minority would themselves tend to stick together in voting for a given candidate (perhaps, though not necessarily, of their own race, as well). Indeed, if there were no correlation between race and candidate preference, it would make no sense to say that minority voters had less opportunity than others to elect whom they would; they would be part of the mainstream and the winners would be their own choices. When voting is thus racially polarized, it is just because of this polarization that majority-minority districts provide the only practical means of avoiding dilution or remedying the dilution injury that has occurred already. Shaw I has thus placed those who choose to avoid the long-recognized constitutional harm of vote dilution at risk by casting doubt on the legitimacy of its classic remedy; the creation of a majority-minority dis- trict "reinforces" the notion that there is a correlation be- tween race and voting, for that correlation is the very condi- tion on which the success of the court-ordered remedy depends. So it is that the Court's definition of injury is so broad as to cover constitutionally necessary efforts to pre- vent or remedy a violation of the Fourteenth and Fifteenth Amendments and of § 2 of the Voting Rights Act. One way to temper the overreach of the Court's concept of injury (though it would not avoid the difficulty that there is no equal protection injury in the usual sense, discussed above, see supra, at 1050) would be simply to exclude by definition from Shaw I injury a use of race in districting that is reasonably necessary to remedy or avoid dilution; the Court's move at least in this direction, see infra, at 1066­ 1069, is a sound one, as is its continuing recognition (despite its broad definition of harm) that not every intentional cre- ation of a majority-minority district requires strict scrutiny. 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1057 Souter, J., dissenting See ante, at 958; ante, at 993 (O'Connor, J., concurring); cf. Miller, 515 U. S., at 928 (O'Connor, J., concurring). But the suggested qualification would fall short of eliminating the difficulty caused by the existing definition, for the uses of race to remedy past dilution or to hedge against future dilu- tion are not the only legitimate uses of race that are covered, and threatened, by the overbreadth of the Shaw injury. This will become clear in examining the Court's efforts to solve its definitional problems by relying upon the degree to which race is used in defining the injury it discerns. C The Court's failure to devise a concept of Shaw harm that distinguishes those who are injured from those who are not, or to differentiate violation from remedy, is matched by its inability to provide any manageable standard to distinguish forbidden districting conduct from the application of tradi- tional state districting principles and the plans that they produce. This failure, while regrettable, need not have occurred, for when the Court spoke in Shaw I of a district shape so "bizarre" as to be an unequivocal indication that race had influenced the districting decision to an unreason- able degree, Shaw I could have been pointing to some work- able criterion of shape translatable into objective standards. Leaving Shaw's theoretical inadequacies aside, it would have been possible to devise a cause of action that rested on the expressive character of a district's shape, and created a safe harbor in the notion of a compact district objectively quanti- fied in terms of dispersion, perimeter, and population. See Pildes & Niemi, 92 Mich. L. Rev., at 553­575. Had the Court followed this course, the districts whose grotesque shapes provoke the sharpest reaction would have been elimi- nated in racially mixed States, which would have known how to avoid Shaw violations and, thus, federal judicial intrusion. Shaw would have been left a doctrinal incongruity, but not an unmanageable one. 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1058 BUSH v. VERA Souter, J., dissenting The Court, however, rejected this opportunity last Term in Miller v. Johnson, supra, when it declined to contain Shaw by any standard sufficiently quantifiable to guide the decisions of state legislators or to inform and limit review of districting decisions by the courts. The Court rejected shape as a sufficient condition for finding a Shaw viola- tion, or even a necessary one. 515 U. S., at 915. See also Issacharoff, The Constitutional Contours of Race and Poli- tics, 1995 S. Ct. Rev. 45, 56 (hereinafter Issacharoff, Consti- tutional Contours) ("Miller is rather categorical in its refusal to limit the application of the equal protection clause to bi- zarre districts alone"). Instead, it recharacterized the cause of action in terms devised in other cases addressing essen- tially different problems, by proscribing the consideration of race when it is the "predominant factor motivating the legis- latur[e]," 515 U. S., at 916, or when the use of race is "in substantial disregard of customary and traditional districting practices," id., at 928 (O'Connor, J., concurring). As a standard addressed to the untidy world of politics, neither "predominant factor" nor "substantial disregard" in- spires much hope.7 It is true of course that the law rests certain other liability decisions on the feasibility of untan- gling mixed motives, and courts and juries manage to do the untangling. See, e. g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977) (employee's burden to show that constitutionally protected conduct is a "substantial factor" in 7 See Cannon v. North Carolina State Bd. of Ed., 917 F. Supp. 387, 391 (EDNC 1996) (describing this "difficult area of the law" and predicting that it will "gain better definition by reason of an imminent decision by the Supreme Court of the United States [in Shaw II ]"); Briffault, Race and Representation After Miller v. Johnson, 1995 U. Chi. Legal Forum 23, 50 (1995) ("[I]t is unclear what work the adjectives `predominant' and `overriding' do in the Supreme Court's test"); Karlan, Post-Shaw Era 287 (Miller "further unsettled the already unclear roadmap" of Shaw I ); Issacharoff, Constitutional Contours 60 ("[T]he Court's facile reliance on standards of causation vaguely reminiscent of tort law does nothing to defer confronting the hard issue of acceptable standards of conduct"). 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1059 Souter, J., dissenting decision not to rehire him; employer's burden to show that it would have made same decision "even in the absence of the protected conduct"); Hunter v. Underwood, 471 U. S. 222, 228 (1985) ("Once racial discrimination is shown to have been a `substantial' or `motivating' factor behind the enactment of the law, the burden shifts to the law's defenders to demon- strate that the law would have been enacted without this factor"); but see Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 265 (1977) ("Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the `dominant' or `primary' one"). At first glance, then, it may not seem entirely out of the question for courts to sort out the strands in Shaw cases. But even this cool comfort would be misplaced. While a court may be entitled to some confidence that in most cases it will be able, for example, to distinguish the relative strength of an employer's dissatisfaction with an em- ployee's job performance from his displeasure over a work- er's union membership, see NLRB v. Transportation Man- agement Corp., 462 U. S. 393, 403­405 (1983), such confidence would be unwarranted in the districting context. It is not merely that the very nature of districting decisions makes it difficult to identify whether any particular consideration, ra- cial or otherwise, was the "predominant motive," though that is certainly true: "Districting plans are integrated bundles of compro- mises, deals and principles. To ask about the reason behind the design of any one particular district is typi- cally to implicate the entire pattern of purposes and trade-offs behind a districting plan as a whole. Search- ing for `the reason' or `the dominant reason' behind a particular district's shape is often like asking why one year's federal budget is at one level rather than another. Moreover, to require a coherent explanation for the spe- 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1060 BUSH v. VERA Souter, J., dissenting cific shape of even one district is to impose a model of legalistic decisionmaking on the one political process that least resembles that model." Pildes & Niemi, supra, at 585­586 (footnote omitted). The reason that use of the predominant motive standard in reviewing a districting decision is bound to fail is more fundamental than that: in the political environment in which race can affect election results, many of these traditional districting principles cannot be applied without taking race into account and are thus, as a practical matter, inseparable from the supposedly illegitimate racial considerations. See Pildes & Niemi, supra, at 578 ("[R]ace frequently correlates with other socioeconomic factors. In evaluating oddly shaped districts, this correlation will require courts to at- tempt to untangle legitimate communities of interest from the now-illegitimate one of race. If blacks as blacks cannot be grouped into a `highly irregular' district, but urban resi- dents or the poor can, how will courts distinguish these con- texts, and under what mixed-motive standard?"); Issacharoff, Constitutional Contours 58 ("Given the palpability of racial concerns in the political arena, [Miller's causation standard could] either doom all attempts to distribute political power in multi-ethnic communities or . . . fail to provide a basis for distinguishing proper from improper considerations in redistricting"). If, for example, a legislature may draw district lines to preserve the integrity of a given community, leaving it intact so that all of its members are served by one representative, this objective is inseparable from preserving the communi- ty's racial identity when the community is characterized, or even self-defined, by the race of the majority of those who live there. This is an old truth, having been recognized every time the political process produced an Irish or Italian or Polish ward. 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1061 Souter, J., dissenting "[E]thnicity itself can tie people together, as volumes of social science literature have documented-even peo- ple with divergent economic interests. For this reason, ethnicity is a significant force in political life. . . . . . . . . ". . . The creation of ethnic districts reflecting felt identity is not ordinarily viewed as offensive or demeaning to those included in the delineation." Miller v. Johnson, 515 U. S., at 944­945 (Ginsburg, J., dissenting). Or take the traditional principle of providing protection for incumbents. The plurality seems to assume that incum- bents may always be protected by drawing lines on the basis of data about political parties. Cf. ante, at 967­968, 970­971. But what if the incumbent has drawn support largely for racial reasons? What, indeed, if the incumbent was elected in a majority-minority district created to remedy vote dilu- tion that resulted from racial-bloc voting? It would be sheer fantasy to assume that consideration of race in these circumstances is somehow separable from application of the traditional principle of incumbency protection, and sheer incoherence to think that the consideration of race that is constitutionally required to remedy Fourteenth and Fif- teenth Amendment vote dilution somehow becomes unconsti- tutional when aimed at protecting the incumbent the next time the census requires redistricting. Thus, it is as impossible in theory as in practice to untan- gle racial consideration from the application of traditional districting principles in a society plagued by racial-bloc vot- ing8 with a racial minority population of political significance, or at least the unrealized potential for achieving it. And it 8 Even in areas where there is no racial-bloc voting, the application of certain traditional districting principles may involve a legitimate consider- ation of race. 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1062 BUSH v. VERA Souter, J., dissenting is for just this fundamental reason that a test turning on predominant purpose is incapable of producing any answer when traditional districting principles are applied in the political environment in which Shaw I actions are brought. II Shaw I 's recognition of a misuse of race in districting even when no vote dilution results thus rests upon two basic defi- ciencies: first, the failure to provide a coherent concept of equal protection injury, there being no separably injured class and no concept of harm that would not condemn a con- stitutionally required remedy for past dilution as well as many of the districting practices that the Court is seeking to preserve; second, the failure to provide a coherent test for distinguishing a "predominant" racial consideration from the application of traditional districting principles in a society whose racial mixture is politically significant and where racial-bloc voting exists. The necessary consequence of these shortcomings is arbitrariness; it is impossible to distin- guish what is valid from what is not, or to decide how far members of racial minorities may engage "in the same sort of pluralist electoral politics that every other bloc of voters enjoys." Karlan, Our Separatism 103. Indeed, if one needed further proof of this arbitrariness, one need go no further than Justice Stevens's dissent in this case. The plurality effectively concedes that Justice Stevens has not unfairly applied the principles governing the Shaw cause of action, cf. ante, at 971, n. (noting that "[i]n the application of our precedents to District 30, our disagreement with Jus- tice Stevens' dissent, [ante], at 1014­1031, is largely fac- tual"); in my judgment he has faithfully applied those princi- ples in the spirit intended by the plurality. And yet the conclusions that the two sides reach after applying precisely the same test could not be more different. 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1063 Souter, J., dissenting Along with this endemic unpredictability has come the destruction of any clear incentive for the States with sub- stantial minority populations to take action to avoid vote dilution. Before Shaw, state politicians who recognized that minority vote dilution had occurred, or was likely to occur without redistricting aimed at preventing it, could not only urge their colleagues to do the right thing under the Four- teenth Amendment, but counsel them in terrorem that losing a dilution case would bring liability for counsel fees under 42 U. S. C. § 1988(b) or 42 U. S. C. § 1973l(e). See Issacharoff, Constitutional Contours 48 ("Minority political actors could leverage not only their political power but the enforcement provisions of Section 5 of the Voting Rights Act, and the threat of suit under Section 2 of the Act against adverse districting decisions"); cf. Hastert v. Illinois State Bd. of Election Commr's, 28 F. 3d 1430, 1444 (CA7 1993) (awarding fees to the prevailing parties in a case in which the state legislature failed to draw congressional districts, over the Board of Elections's objection that it had "no interest in the eventual outcome except that there be an outcome" for it to implement) (emphasis in original). But this argument is blunted now, perhaps eliminated in practice, by the risk of counsel fees in a Shaw I action. States seeking to comply in good faith with the requirements of federal civil rights laws "now find themselves walking a tightrope: if they draw majority-black districts they face lawsuits under the equal protection clause; if they do not, they face both objections under section 5 of the Voting Rights Act and lawsuits under section 2." Karlan, Post-Shaw Era 289. See ante, at 1037 (Stevens, J., dissenting) ("On one hand, States will risk vio- lating the Voting Rights Act if they fail to create majority- minority districts. If they create those districts, however, they may open themselves to liability under Shaw and its progeny"). The States, in short, have been told to get things just right, no dilution and no predominant consider- 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1064 BUSH v. VERA Souter, J., dissenting ation of race short of dilution, without being told how to do it. The tendency of these conflicting incentives is toward a stalemate, and neither the moral force of the Constitution nor the mercenary threat of liability can operate effectively in this obscurity. As a consequence, where once comprehensible districting obligations confronted the legislators and governors of the States, there is now a vacuum of responsibility in any State with the mixed population from which Shaw suits come. We can no longer say with the old assurance that such States have a duty to comply with federal requirements in district- ing, since a State, like an individual, can hardly be blamed for failing to fulfill an obligation that has never been ex- plained. It is true, of course, that a State may suffer conse- quences if the ultimate arbiter decides on a result different from the one the State has put in place, but that bad luck does not change the fact that a State cannot be said to be obliged to apply a standard that has not been revealed. Be- cause the responsibility for the result can only be said to rest with the final arbiter, the practical responsibility over districting has simply shifted from the political branches of the States with mixed populations to the courts, and to this Court in particular. "The Court has apparently set itself upon a course of . . . reviewing challenged districts one by one and issuing opinions that depend so idiosyncratically on the unique facts of each case that they provide no real guidance to either lower courts or legislatures." Karlan, Post-Shaw Era 288. The tragedy in this shift of political responsibility lies not only in the fact of its occurrence in this instance, but in the absence of coherent or persuasive justifications for causing it to occur. III Although today's cases do not address the uncertainties that stem from Shaw's underlying incoherence, they do aim to mitigate its inscrutability with some specific rules. 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1065 Souter, J., dissenting A In each of today's cases, the Court expressly assumes that avoiding a violation of the Voting Rights Act qualifies as a sufficiently compelling government interest to satisfy the re- quirements of strict scrutiny. See ante, at 977 ("As we have done in each of our three previous cases . . . , we assume without deciding that compliance with the results test [of § 2 of the Voting Rights Act] . . . can be a compelling state interest"); Shaw II, ante, at 915 ("We assume, arguendo, for the purpose of resolving this case, that compliance with § 2 could be a compelling interest"). While the Court's decision to assume this important point, arguendo, is no holding, see Seminole Tribe of Fla. v. Florida, ante, at 125 (Souter, J., dissenting), the assumption itself is encouraging because it confirms the view that the intentional creation of majority- minority districts is not necessarily a violation of Shaw I, ante, at 958 (strict scrutiny does not "apply to all cases of intentional creation of majority-minority districts"), and it indicates that the Court does not intend to bring the Shaw cause of action to what would be the cruelly ironic point of finding in the Voting Rights Act of 1965 (as amended) a violation of the Fourteenth Amendment's equal protection guarantee. Cf. Pildes & Niemi, 92 Mich. L. Rev., at 498 (observing that "[i]f the Court believed there were serious constitutional questions with the fundamental structure of this scheme, the Court had numerous means to avoid permit- ting an unconstitutionally composed legislature to assume power," and seeing the reservation of this question in Voino- vich v. Quilter, 507 U. S., at 157, as "evidence that a majority of the Court is not prepared to find a general ban on race- conscious districting in the Constitution"). Justice O'Con- nor's separate opinion, ante, at 990­992, bears on each of these points all the more emphatically, for her view that com- pliance with § 2 is (not just arguendo) a compelling state in- terest and her statement of that position virtually insulate the Voting Rights Act from jeopardy under Shaw as such. 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1066 BUSH v. VERA Souter, J., dissenting B The second point of reference to come out of today's cases is the rule that if a State begins its map-drawing efforts with a compact majority-minority district required by Gingles, the State may not rely too heavily on racial data in adjust- ing that district to serve traditional districting principles. While this rule may indeed provide useful guidance to state legislatures, its inherent weakness is clear from what was said above, supra, at 1060­1062: it is in theory and in fact im- possible to apply "traditional districting principles" in areas with substantial minority populations without considering race. As to some of those principles, to be sure, the ban on the overuse of racial data may not have much significance; racially identified communities can be identified in other ways and will be, after today. But protecting a minority incumbent may be another matter, since we cannot assume, as the plurality does, that reliance on information about "party affiliation" will serve to protect a minority incumbent, and we cannot tell when use of racial data will go too far on the plurality's view, ante, at 962­963. It therefore may well be that loss of the capacity to protect minority incumbency is the price of the rule limiting States' use of racial data. If so, it will be an exceedingly odd result, when the whole point of creating yesterday's majority-minority district was to remedy prior dilution, thus permitting the election of the minority incumbent who (the Court now seems to declare) cannot be protected as any other incumbent could be. C The third point of reference attributable to today's cases is as yet only a possibility; a suggestion in the discussions of the narrow tailoring test that States seeking to avoid violat- ing § 2 of the Voting Rights Act may draw the district that the Voting Rights Act compels, and this district alone. See Shaw II, ante, at 915­918 (rejecting North Carolina's Dis- trict 12 because it does not sufficiently coincide with the 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1067 Souter, J., dissenting assumed Gingles district); ante, at 1035 (Stevens, J., dis- senting) ("[I]t now seems clear that the only way that a State can both create a majority-minority district and avoid a ra- cial gerrymander is by drawing . . . within the `limited de- gree of leeway' granted by the Court . . . the precise compact district that a court would impose in a successful § 2 chal- lenge"). If the Court were to say that a district drawn to avoid dilution must respond to the dilution threat in some geographically exact way, but see Shaw II, ante, at 916, n. 8 (suggesting that States may have flexibility in complying with § 2 of the Voting Rights Act); ante, at 1037 (Stevens, J., dissenting) (noting that States traditionally have enjoyed a broader discretion in drawing district lines), then pre- sumably a district drawn in a race-conscious fashion could survive only if it was as compact as the Gingles district hy- pothesized for purposes of stating a vote-dilution claim, and positioned where the hypothetical district would be. If the Court ultimately were to reach such a conclusion, it would in one respect be taking a step back toward Shaw I and its suggestion that a district's shape might play an im- portant, if not determinative role in establishing a cause of action. Such a step would, however, do much more than return to Shaw I, which suggested that a compact district would be a safe haven, but not that the district hypothesized under Gingles was the only haven. See, e. g., Shaw I, 509 U. S., at 646 ("The district lines may be drawn, for example, to provide for compact districts of contiguous territory, or to maintain the integrity of political subdivisions"). I refer to this step as a "possibility" deliberately. The Court in Shaw II does not go beyond an intimation to this effect, and Bush raises doubt that the Court would go so far. See ante, at 977­978 (rejecting the argument made by Justice Stevens); see also ante, at 978 ("[T]he States re- tain a flexibility that federal courts enforcing § 2 lack . . . . And nothing that we say today should be read as limiting `a State's discretion to apply traditional districting princi- 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1068 BUSH v. VERA Souter, J., dissenting ples' "); but see ante, at 994 (O'Connor, J., concurring) ("[I]f a State pursues that compelling interest by creating a dis- trict that `substantially addresses' the potential liability, and does not deviate substantially from a hypothetical court- drawn § 2 district for predominantly racial reasons, its dis- tricting plan will be deemed narrowly tailored" (citations omitted)); but see also ante, at 977 ("We also reaffirm that the `narrow tailoring' requirement of strict scrutiny allows the States a limited degree of leeway in furthering such in- terests. . . . We thus reject, as impossibly stringent, the Dis- trict Court's view of the narrow tailoring requirement, that `a district must have the least possible amount of irregularity in shape, making allowances for traditional districting crite- ria' " (citation omitted)). Indeed, Bush leaves open the pos- sibility that a State could create a majority-minority district that does not coincide with the Gingles shape so long as racial data are not overused, ante, at 962, 981, and it does not suggest that a Shaw claim could be premised solely on a deviation from a Gingles district. Suffice it to say for now that if the Court were to try to render Shaw more definite by imposing any such limitations on shape and placement, the added measure of clarity would either be elusive or it would come at an exorbitant price from States seeking to comply with the Voting Rights Act and the Fourteenth and Fifteenth Amendments. It would be elu- sive if the Court meant that race could be considered in alleviating racial dilution but not in applying any traditional districting principle: we have already seen that race is in- extricably intertwined with some common districting prin- ciples when applied in a multiracial society. See supra, at 1060­1062. Or it would come at an exorbitant price, because no other districting principle would be allowed to affect the compactness or placement that would be required for pur- poses of Gingles. The Court would thus be cutting back on a State's power to vary district shape through its application of the very districting principles that are supposed to pre- 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1069 Souter, J., dissenting dominate in importance over racial consideration. That is, the Court would be reducing the discretion of a State seeking to avoid or correct dilution to the scope of a fed- eral court's discretion when devising a remedy for dilution. There could, of course, be no justification for taking any such step. While there is good reason to limit a federal court's discretion to interfere in a State's political process when it employs its remedial power in dilution cases, cf. Voinovich v. Quilter, 507 U. S., at 156 ("Federal courts are barred from intervening in state apportionment in the absence of a viola- tion of federal law precisely because it is the domain of the States . . . to conduct apportionment"), there is no apparent reason to impose the same limitations upon the discretion accorded to a State subject to an independent constitutional duty to make apportionment decisions, see ibid. ("Because the States . . . derive their reapportionment authority . . . from independent provisions of state and federal law, . . . the federal courts are bound to respect the States' apportion- ment choices unless those choices contravene federal require- ments") (internal quotation marks omitted). The principles of federalism that we have tried to follow strongly counsel against imposing any such limitations. D In sum, the three steps the Court takes today toward a more definite cause of action either fail to answer the objec- tions to Shaw I or prompt objections of their own. Recogni- tion of a State's interest in complying with the Voting Rights Act does not address the practical impossibility courts will encounter in identifying a predominant use of race, as distin- guished from some lesser, reasonable consideration of it, when a State applies its customary districting principles. The limitation on the use of racial data is unlikely to make much difference in practice except to jeopardize minority in- cumbency protection. And the possibility that the Court will require Gingles districts (or districts substantially close 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1070 BUSH v. VERA Souter, J., dissenting to them) when compliance with § 2 of the Voting Rights Act is an object of districting would render a State's districting obligation more definite only by eliminating its ability to apply the very districting principles traditionally considered to be important enough to furnish a theoretical baseline of reasonable districting practices. IV If today's developments fall short of curing Shaw's unworkability, it must be said that options for addressing them are few. Assuming that Shaw is not to be overruled as a flawed experiment, the Court may select from two alternatives, depending on whether its weightier concern is to preserve traditional districting principles or to cure the anomalies created by Miller's "predominant purpose" criterion. If the Court's first choice is to preserve Shaw in some guise with the least revolutionary effect on districting prin- ciples and practice, the Court could give primacy to the prin- ciple of compactness and define the limits of tolerance for unorthodox district shape by imposing a measurable limita- tion on the bizarre, presumably chosen by reference to his- torical practice (adjusted to eliminate the influence of any dilution that very practice may have caused in the past, cf. Pildes & Niemi, 92 Mich. L. Rev., at 573­574, n. 246 (discuss- ing the egregious racial gerrymanders of the 19th century)) and calculated on the basis of a district's dispersion, perime- ter, and population. See id., at 553­575. This alternative would be true to Shaw I in maintaining that a point can be reached when the initially lawful consideration of race be- comes unreasonable and in identifying appearance as the ex- pression of undue consideration; and it would eliminate Mill- er's impossible obligation to untangle racial considerations from so-called "race-neutral" objectives (such as according respect to community integrity and protecting the seats of 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1071 Souter, J., dissenting incumbents) when the racial composition of a district and voter behavior bar any practical chance of separating them. The incongruities of Shaw's concept of injury when consid- ered in light of our customary equal protection analysis, our remedial practice, and traditional respect for state district- ing discretion would, of course, persist, but if Shaw were defined by measures that identified forbidden shape as the manifestation of unreasonable racial emphasis, we would at least provide the notice and guidance that are missing from the law today. The other alternative for retaining a Shaw cause of action in some guise would be to accept the fact that, in the kind of polarized multiracial societies that will generate Shaw ac- tions as presently understood, racial considerations are in- separable from many traditional districting objectives, mak- ing it impossible to speak of race as predominating. The consequence of facing this reality is that if some consider- ation of race is to be forbidden as supposedly unreasonable in degree, then the use of districting principles that implicate the use of race must be forbidden. That is, traditional dis- tricting practices must be eliminated. Such a result would, of course, be consistent with Shaw I 's concept of injury as affecting voters of whatever race. But cf. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 489 (1982) (fact that some expressive harms are insufficient to satisfy Article III standing requirements does not allow for relaxation of those requirements). The result, in short, would be colorblind- ness in determining the manner of choosing representatives, either by eliminating the practice of districting entirely, or by replacing it with districting on some principle of random- ness that would not account for race in any way. While such is the direction in which Shaw and Miller together point, the objections to following any such course seem insurmountable. The first is the irony that the price 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1072 BUSH v. VERA Souter, J., dissenting of imposing a principle of colorblindness in the name of the Fourteenth Amendment would be submerging the votes of those whom the Fourteenth and Fifteenth Amendments were adopted to protect, precisely the problem that necessi- tated our recognition of vote dilution as a constitutional vio- lation in the first place. Eliminating districting in the name of colorblindness would produce total submersion; random submersion (or packing) would result from districting by some computerized process of colorblind randomness. Thus, unless the attitudes that produce racial-bloc voting were eliminated along with traditional districting principles, dilu- tion would once again become the norm. While dilution as an intentional constitutional violation would be eliminated by a randomly districted system, this theoretical nicety would be overshadowed by the concrete reality that the result of such a decision would almost inevitably be a so- called "representative" Congress with something like 17 black members. See supra, at 1050. In any event, the submergence would violate the prohibition of even non- intentional dilution found in § 2 of the Voting Rights Act. The only way to avoid this conflict would be to declare the Voting Rights Act unconstitutional, a prospect hardly in har- mony with the Court's readiness to assume today that com- pliance with the Voting Rights Act qualifies as a compelling state interest for purposes of litigating a Shaw claim. The second objection is equally clear. Whatever may be the implications of what I have called Shaw's failings, the Court has repeatedly made it plain that Shaw was in no way intended to effect a revolution by eliminating traditional districting practice for the sake of colorblindness. Shaw I, 509 U. S., at 642 ("Despite their invocation of the ideal of a `color-blind' Constitution, see Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting), appellants appear to concede that race-conscious districting is not always unconstitutional. . . . That concession is wise: This Court 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1073 Souter, J., dissenting never has held that race-conscious state decisionmaking is impermissible in all circumstances"); cf. Richmond v. J. A. Croson Co., 488 U. S. 469, 520­521 (1989) (Scalia, J., concur- ring in judgment) (criticizing the majority for rejecting a strict principle of colorblindness). Indeed, the very fear that led to the creation of the Shaw cause of action was that racial concerns were taking too heavy a toll on districting practices that had evolved over the years through the po- litical process. Shaw I, 509 U. S., at 644­649. Justice O'Connor, moreover, has made it obvious that race has a legitimate place in districting, id., at 642 ("[R]ace- conscious redistricting is not always unconstitutional"); Miller, 515 U. S., at 928­929 (O'Connor, J., concurring); ante, at 993 (O'Connor, J., concurring), that the intentional creation of majority-minority districts is not forbidden by Shaw, Miller, supra, at 928 (O'Connor, J., concurring) (dis- tricts may be permissible "even though race may well have been considered in the redistricting process"); ante, at 990­ 992 (O'Connor, J., concurring), and that Shaw was aimed at only the exceptional district, 515 U. S., at 928­929 ("Ap- plication of the Court's standard does not throw into doubt the vast majority of the Nation's 435 congressional dis- tricts"). Of the present Court majority, only Justices Scalia and Thomas are on record as concluding that any intentional creation of a majority-minority district is a for- bidden racial gerrymander. Ante, at 1001 (Thomas, J., con- curring in judgment). Since a radical transformation of the political selection process in the name of colorblindness is out of the question, the Court's options for dealing with Shaw's unworkability are in truth only these: to confine the cause of action by adopting a quantifiable shape test or to eliminate the cause of action entirely. Because even a truncated Shaw would rest on the untenable foundation I have described, and the supposed, expressive harm Shaw seeks to remedy is unlikely 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1074 BUSH v. VERA Souter, J., dissenting to justify the disruption that even a modified Shaw would invite, there is presently no good reason that the Court's withdrawal from the presently untenable state of the law should not be complete. While I take the commands of stare decisis very seriously, the problems with Shaw and its prog- eny are themselves very serious. The Court has been un- able to provide workable standards, the chronic uncertainty has begotten no discernible reliance, and the costs of persist- ing doubt about the limits of state discretion and state re- sponsibility are high. There is, indeed, an added reason to admit Shaw's failure in providing a manageable constitutional standard and to allow for some faith in the political process. That process not only evolved the very traditional districting principles that the Court has pledged to preserve, but has applied them in the past to deal with ethnicity in a way that should influ- ence our thinking about the prospects for race. It is difficult to see how the consideration of race that Shaw condemns (but cannot avoid) is essentially different from the consider- ation of ethnicity that entered American politics from the moment that immigration began to temper regional homoge- neity. Recognition of the ethnic character of neighborhoods and incumbents, through the application of just those dis- tricting principles we now view as traditional, allowed ethni- cally identified voters and their preferred candidates to enter the mainstream of American politics, see Miller, supra, at 944­945 (Ginsburg, J., dissenting); D. Judd, The Politics of American Cities: Private Power and Public Policy 70 (3d ed. 1988); see generally S. Erie, Rainbow's End: Irish-Americans and the Dilemmas of Urban Machine Politics, 1840­1985 (1988), and to attain a level of political power in American democracy. The result has been not a state regime of ethnic apartheid, but ethnic participation and even a moderation of ethnicity's divisive effect in political practice. For although consciousness of ethnicity has not disappeared from the 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1075 Souter, J., dissenting American electorate, its talismanic force does appear to have cooled over time.9 It took Boston Irish voters, for example, to elect Thomas Menino mayor in 1993.10 9 See Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N. C. L. Rev. 303, 347, 350 (1986) ("[T]he surest path to assimilation is participation in the larger society's activities and institutions. Voting is not just an expression of political preferences; it is an assertion of belong- ing to a political community. . . ." "When legislative districts are defined in ways that exclude the possibility of significant minority representation, potential minority voters see that their votes are not worth casting. Yet electoral mobilization is vital . . . to the group members' perceptions that they belong to the community"); Walzer, Pluralism in Political Perspective, in The Politics of Ethnicity 1, 18 (S. Thernstrom, A. Orlov, & O. Handlin eds. 1982) ("[P]olitical life is in principle open, and this openness has served to diffuse the most radical forms of ethnic competition"); Kanto- wicz, Voting and Parties, in The Politics of Ethnicity, supra, at 29, 45 (noting that political successes and recognition made members of an ethnic group "feel that it belonged in the wider society . . . [and brought] them inside the political system"); Mintz, Ethnicity and Leadership: An After- word, in Ethnic Leadership in America 198 (J. Higham ed. 1978) (conclud- ing after reviewing several studies of ethnic politics that "we ignore at our peril the need to understand those processes by which being short- changed . . . politically can become any group's motto or battle standard"); cf. Karlan, Our Separatism 102 ("two generations of communist suppres- sion and ethnic and religious tension in Yugoslavia did little to ensure stability, tolerance, or integration"). 10 See, e. g., Nolan, Boston Mayoral Race Could Break Dominance of Eth- nicity, Boston Globe, Apr. 9, 1993, p. 40 ("When Boston finishes choosing a new mayor, the city may discover that after centuries of immigration, ethnicity is no longer the dominant factor in its politics"); Black, Once- Solid Voting Blocks are Splitting in Boston, Boston Globe, Nov. 1, 1993, p. 1 (commenting that voters consider Menino's Italian descent "little more than a historical footnote" and observing that "ethnic voting has faded . . . [a]s various groups enter the American economic and social mainstream . . . [and] gain some semblance of [political] power"); D'Innocenzo, Gulotta Can't Count on Ethnicity, Newsday, Oct. 19, 1993, p. 97 (noting that "[t]he vowel at the end of Tom Gulotta's name may not matter in this year's county executive election as it once did" because "Italian-Americans in Nassau County are likely to go to the polls with more than ethnic favor- itism in mind"; attributing the decline in ethnicity-based voting to the 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT 1076 BUSH v. VERA Souter, J., dissenting There is, then, some reason to hope that if vote dilution is attacked at the same time that race is given the recognition that ethnicity has historically received in American politics, the force of race in politics will also moderate in time. There are even signs that such hope may be vindicated, even if the evidence is necessarily tentative as yet. See U. S. Comm'n on Civil Rights, The Voting Rights Act: Ten Years After, p. 155 (Jan. 1975) ("In many areas the great increase in minority registration and voting since the passage of the Voting Rights Act in 1965 has meant that politicians can no longer afford to ignore minority voters. This has brought about a significant decline in racial appeals by candidates and has made incumbents and candidates more responsive to minority needs"); Carsey, The Contextual Effects of Race on White Voter Behavior: The 1989 New York City Mayoral Election, 57 J. of Politics 221, 228 (1995) (reporting, in 1994, that "the contextual effects of race may not be so different from the contextual effects of factors like partisanship, eth- nicity, or social class as we might have believed"); Sigelman, Sigelman, Walkosz, & Nitz, Black Candidates, White Voters: Understanding Racial Bias in Political Perceptions, 39 Am. J. of Political Science 243, 244 (1995) ("Over the years, white Americans have expressed increasing willingness to vote for black candidates"); Peirce, Fresh Air in City Hall, Baltimore Sun, Nov. 8, 1993, p. 7A ("In contest after contest, victory has gone to mayoral candidates who eschew talk of race"); see also Gingles, 478 U. S., at 56 (noting that crossover voting in favor of minority candidates is more common when minor- ity incumbents stand for reelection); Collins v. Norfolk, 883 F. 2d 1232, 1243 (CA4 1989) (same). This possibility that racial politics, too, may grow wiser so long as minority votes are rescued from submergence should be considered in deter- mining how far the Fourteenth and Fifteenth Amendments require us to devise constitutional common law to supplant fact that "Nassau Italian-Americans feel less marginali[zed] as an ethnic group"). 517us3$68m 02-19-99 11:09:45 PAGES OPINPGT Cite as: 517 U. S. 952 (1996) 1077 Souter, J., dissenting the democratic process with litigation in federal courts. It counsels against accepting the profession that Shaw has yet evolved into a manageable constitutional standard, and from that case's invocation again today I respectfully dissent. 01-05-99 17:32:07 517ORDNot1 Reporter's Note The next page is purposely numbered 1101. The numbers between 1077 and 1101 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS FOR MARCH 20 THROUGH JUNE 13, 1996 March 20, 1996 Dismissal Under Rule 46 No. 95­928. Atherton et al. v. Federal Deposit Insur- ance Corporation, as Receiver for City Savings, F. S. B. C. A. 3d Cir. Certiorari dismissed as to Marshall M. Criser, Al- fred J. Hedden, and Gilbert G. Roessner under this Court's Rule 46. Reported below: 57 F. 3d 1231. March 25, 1996 Certiorari Granted-Vacated and Remanded No. 95­7254. Smith v. United States. C. A. 4th Cir. Mo- tion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for fur- ther consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 62 F. 3d 1415. Miscellaneous Orders No. A­447 (95­1498). Hill v. Department of the Air Force et al. C. A. 10th Cir. Application for stay, addressed to Justice Ginsburg and referred to the Court, denied. No. D­1626. In re Disbarment of Sokolow. Disbarment entered. [For earlier order herein, see 516 U. S. 1038.] No. D­1629. In re Disbarment of Clapp. Disbarment en- tered. [For earlier order herein, see 516 U. S. 1039.] No. D­1632. In re Disbarment of Muraca. Disbarment entered. [For earlier order herein, see 516 U. S. 1090.] No. D­1633. In re Disbarment of Connick. Disbarment entered. [For earlier order herein, see 516 U. S. 1090.] No. D­1636. In re Disbarment of Tinsley. Disbarment entered. [For earlier order herein, see 516 U. S. 1090.]1101 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1102 OCTOBER TERM, 1995 March 25, 1996 517 U. S. No. D­1637. In re Disbarment of Noxon. Disbarment en- tered. [For earlier order herein, see 516 U. S. 1090.] No. 95­345. United States v. Ursery. C. A. 6th Cir. [Cer- tiorari granted, 516 U. S. 1070]; and No. 95­346. United States v. $405,089.23 in United States Currency et al. C. A. 9th Cir. [Certiorari granted, 516 U. S. 1070.] Motion of respondents for divided argument and for addi- tional time for oral argument granted. Twenty additional min- utes are allotted for that purpose, and the time for oral argument is to be divided as follows: 40 minutes, the Solicitor General; 20 minutes, respondent Ursery; 20 minutes, respondents $405,089.23 et al. No. 95­719. Gasperini v. Center for Humanities, Inc. C. A. 2d Cir. [Certiorari granted, 516 U. S. 1086.] Motion of Association of Trial Lawyers of America for leave to file a brief as amicus curiae granted. No. 95­1176. Palmer Communications, Inc., et al. v. Total TV. C. A. 9th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States. No. 95­7849. In re Trentz. Petition for writ of mandamus denied. Certiorari Granted No. 95­813. Bennett et al. v. Plenert et al. C. A. 9th Cir. Certiorari granted. Reported below: 63 F. 3d 915. No. 95­966. O'Gilvie et al., Minors v. United States; and No. 95­977. O'Gilvie v. United States. C. A. 10th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 66 F. 3d 1550. No. 95­974. Arizonans for Official English et al. v. Arizona et al. C. A. 9th Cir. Motions of Equal Opportunity Foundation and U. S. English, Inc., for leave to file briefs as amici curiae granted. Certiorari granted. In addition to the questions presented by the petition, the parties are requested to brief and argue the following questions: "(1) Do petitioners have standing to maintain this action? (2) Is there a case or contro- versy with respect to respondent Yniguez?" Reported below: 69 F. 3d 920. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1103 517 U. S. March 25, 1996 Certiorari Denied No. 95­376. Unisys Corp. v. Pickering et al.; and No. 95­593. Pickering et al. v. Unisys Corp. C. A. 3d Cir. Certiorari denied. Reported below: 57 F. 3d 1255. No. 95­781. Bank of America National Trust and Sav- ings Assn., Successor-By-Merger to Security Pacific Na- tional Bank, Trustee v. Federal Deposit Insurance Cor- poration, as Receiver for Santa Barbara Savings and Loan Assn. C. A. 9th Cir. Certiorari denied. Reported below: 63 F. 3d 900. No. 95­816. Mier v. Van Dyke, Adjutant General, Ari- zona Army National Guard, et al. C. A. 9th Cir. Certiorari denied. Reported below: 57 F. 3d 747. No. 95­845. White v. City of Taylor et al. C. A. 6th Cir. Certiorari denied. Reported below: 65 F. 3d 169. No. 95­955. Gordon v. Chater, Commissioner of Social Security. C. A. 2d Cir. Certiorari denied. Reported below: 55 F. 3d 101. No. 95­957. Brazil v. Dalton, Secretary of the Navy, et al. C. A. 9th Cir. Certiorari denied. Reported below: 66 F. 3d 193. No. 95­969. Miller v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 66 F. 3d 220. No. 95­970. Mercer v. Monzack. C. A. 1st Cir. Certiorari denied. Reported below: 53 F. 3d 1. No. 95­978. Caruso et al. v. Kelly, Police Commissioner of the City of New York, et al. C. A. 2d Cir. Certiorari denied. Reported below: 122 F. 3d 1055. No. 95­1000. Hennessy et al. v. Federal Deposit Insur- ance Corporation, as Receiver for Meritor Savings Bank, et al.; and No. 95­1002. Hanna et al. v. Federal Deposit Insurance Corporation. C. A. 3d Cir. Certiorari denied. Reported below: 58 F. 3d 908. No. 95­1007. Washington Suburban Sanitary Commission v. Westfarm Associates Limited Partnership et al. C. A. 4th Cir. Certiorari denied. Reported below: 66 F. 3d 669. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1104 OCTOBER TERM, 1995 March 25, 1996 517 U. S. No. 95­1147. Ragan v. ContiCommodity Services, Inc., et al.; and No. 95­1151. Ragan v. ContiCommodity Services, Inc., et al. C. A. 5th Cir. Certiorari denied. Reported below: 63 F. 3d 438. No. 95­1163. Willis v. Shelby County, Tennessee, Infor- mation Technology et al. C. A. 6th Cir. Certiorari denied. Reported below: 70 F. 3d 116. No. 95­1164. Foster, Governor of Louisiana, et al. v. Hope Medical Group for Women et al. C. A. 5th Cir. Cer- tiorari denied. Reported below: 63 F. 3d 418. No. 95­1167. United States ex rel. Willis v. General Dynamics Corp. C. A. 9th Cir. Certiorari denied. Reported below: 61 F. 3d 1402. No. 95­1168. Rosen v. Iowa Board of Medical Examiners. Sup. Ct. Iowa. Certiorari denied. Reported below: 539 N. W. 2d 345. No. 95­1170. Evans v. Kansas City School District. C. A. 8th Cir. Certiorari denied. Reported below: 65 F. 3d 98. No. 95­1175. Bravo et al. v. National Mediation Board et al. C. A. D. C. Cir. Certiorari denied. Reported below: 70 F. 3d 637. No. 95­1185. Fort Peck Assiniboine and Sioux Tribes v. Tubridy et vir. Sup. Ct. Ill. Certiorari denied. Reported below: 167 Ill. 2d 250, 657 N. E. 2d 935. No. 95­1187. Berks County et al. v. Murtagh et al. Commw. Ct. Pa. Certiorari denied. Reported below: 659 A. 2d 1083. No. 95­1196. McLaughlin et al. v. North Carolina Board of Elections et al. C. A. 4th Cir. Certiorari denied. Re- ported below: 65 F. 3d 1215. No. 95­1199. Clinton v. Middlesex Mutual Assurance Co. App. Ct. Conn. Certiorari denied. Reported below: 38 Conn. App. 555, 662 A. 2d 1319. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1105 517 U. S. March 25, 1996 No. 95­1236. Bandura v. Immigration and Naturalization Service. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 543. No. 95­1239. Bower v. Bower. Ct. App. Ohio, Sandusky County. Certiorari denied. No. 95­1252. Mates v. Occupational Safety and Health Administration et al. C. A. 3d Cir. Certiorari denied. Re- ported below: 67 F. 3d 291. No. 95­1274. Catalina Enterprises, Incorporated Pen- sion Trust v. Hartford Fire Insurance Co. C. A. 4th Cir. Certiorari denied. Reported below: 67 F. 3d 63. No. 95­1301. Thomson v. Harmony et al. C. A. 6th Cir. Certiorari denied. Reported below: 65 F. 3d 1314. No. 95­1312. Raney v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 65 F. 3d 167. No. 95­1324. Lyon v. Alabama State Bar. Sup. Ct. Ala. Certiorari denied. Reported below: 676 So. 2d 1358. No. 95­1333. Lussier v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 71 F. 3d 456. No. 95­1335. Hansen v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 70 F. 3d 1273. No. 95­1337. Britton v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 68 F. 3d 262. No. 95­1368. Saccoccia v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 63 F. 3d 1. No. 95­1371. Hill v. United States. C. A. 9th Cir. Certio- rari denied. Reported below: 70 F. 3d 1280. No. 95­1374. Spears v. State Bar of Illinois. Sup. Ct. Ill. Certiorari denied. No. 95­1383. Saccoccia v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 58 F. 3d 754. No. 95­1386. Stepard et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 60 F. 3d 834. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1106 OCTOBER TERM, 1995 March 25, 1996 517 U. S. No. 95­1390. National Association of Reversionary Property Owners v. Surface Transportation Board et al. C. A. D. C. Cir. Certiorari denied. Reported below: 70 F. 3d 638. No. 95­1392. Ruiz-Mendoza v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 1269. No. 95­1397. Andrews v. Georgia. C. A. 11th Cir. Certio- rari denied. Reported below: 65 F. 3d 183. No. 95­6765. Brunner v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 62 F. 3d 400. No. 95­7119. Elgendy et ux. v. Nehemiah Plan Homes Project et al. C. A. 2d Cir. Certiorari denied. No. 95­7155. Patrick v. Texas. Ct. Crim. App. Tex. Cer- tiorari denied. Reported below: 906 S. W. 2d 481. No. 95­7171. Fauber v. California. Sup. Ct. Cal. Certio- rari denied. No. 95­7195. Carter v. Runyon, Postmaster General. C. A. 8th Cir. Certiorari denied. Reported below: 67 F. 3d 303. No. 95­7222. Gorman v. McAninch, Warden. C. A. 6th Cir. Certiorari denied. No. 95­7250. Kinley v. Ohio. Sup. Ct. Ohio. Certiorari de- nied. Reported below: 72 Ohio St. 3d 491, 651 N. E. 2d 419. No. 95­7252. Lawson v. Chater, Commissioner of Social Security. C. A. 2d Cir. Certiorari denied. Reported below: 54 F. 3d 766. No. 95­7260. Turpin v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 65 F. 3d 1207. No. 95­7273. Crompton v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 65 F. 3d 170. No. 95­7456. Scott v. Minnesota. Ct. App. Minn. Certio- rari denied. No. 95­7464. Strowski v. Bank of America. C. A. 9th Cir. Certiorari denied. Reported below: 60 F. 3d 834. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1107 517 U. S. March 25, 1996 No. 95­7539. Kee v. Argus Life Insurance Co. C. A. 11th Cir. Certiorari denied. Reported below: 58 F. 3d 639. No. 95­7542. Oliver v. Witkowski, Warden, et al. C. A. 4th Cir. Certiorari denied. Reported below: 67 F. 3d 296. No. 95­7543. Saleem v. NationsBanc Mortgage Corp. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 271 Ill. App. 3d 1137, 688 N. E. 2d 151. No. 95­7544. Polley et al. v. Georgia State Board of Pardons and Paroles et al. C. A. 11th Cir. Certiorari de- nied. Reported below: 68 F. 3d 486. No. 95­7545. Roussos v. Allstate Insurance Co. Ct. Sp. App. Md. Certiorari denied. Reported below: 104 Md. App. 80, 655 A. 2d 40. No. 95­7551. Bollman v. Emerson, Judge, District Court of Texas, Potter County. Sup. Ct. Tex. Certiorari denied. No. 95­7554. Craig v. Caspari, Superintendent, Missouri Eastern Correctional Center. Sup. Ct. Mo. Certiorari de- nied. Reported below: 906 S. W. 2d 369. No. 95­7555. Allen v. Florida. Sup. Ct. Fla. Certiorari denied. Reported below: 662 So. 2d 323. No. 95­7556. Sevigny et al. v. Maine et al. C. A. 1st Cir. Certiorari denied. Reported below: 69 F. 3d 531. No. 95­7562. Price-El v. Gee, Warden. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 1263. No. 95­7564. Smiddy v. Singletary, Secretary, Florida Department of Corrections. C. A. 11th Cir. Certiorari denied. No. 95­7565. Sales v. Sparks et al. C. A. 6th Cir. Certio- rari denied. No. 95­7569. Vargas v. Gunn, Warden. C. A. 9th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 310. No. 95­7570. Cooper v. Groose, Superintendent, Jeffer- son City Correctional Center, et al. C. A. 8th Cir. Cer- tiorari denied. Reported below: 65 F. 3d 172. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1108 OCTOBER TERM, 1995 March 25, 1996 517 U. S. No. 95­7572. Tate v. James, Governor of Alabama, et al. C. A. 11th Cir. Certiorari denied. No. 95­7576. Gregory v. North Carolina. Sup. Ct. N. C. Certiorari denied. Reported below: 340 N. C. 365, 459 S. E. 2d 638. No. 95­7590. Howell v. Koch et al. C. A. 10th Cir. Cer- tiorari denied. Reported below: 69 F. 3d 548. No. 95­7591. DeLeon v. San Antonio Independent School District et al. C. A. 5th Cir. Certiorari denied. Reported below: 68 F. 3d 465. No. 95­7593. Gilbert v. San Francisco Bay Area Rapid Transit District et al. Ct. App. Cal., 1st App. Dist. Cer- tiorari denied. No. 95­7594. McCarthy v. Kansas City, Missouri. C. A. 8th Cir. Certiorari denied. No. 95­7595. Morris v. School Board of the City of Norfolk, Virginia, et al. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 112. No. 95­7596. Lucien v. Washington, Director, Illinois Department of Corrections, et al. C. A. 7th Cir. Certio- rari denied. Reported below: 69 F. 3d 539. No. 95­7597. Murray, aka Hines v. Roach, Warden, et al. C. A. D. C. Cir. Certiorari denied. No. 95­7600. Kowalski v. Oregon State Bar et al. C. A. 9th Cir. Certiorari denied. No. 95­7601. McBride v. Thompson, Warden, et al. C. A. 11th Cir. Certiorari denied. Reported below: 65 F. 3d 183. No. 95­7610. Porter v. Arkansas. Sup. Ct. Ark. Certio- rari denied. Reported below: 321 Ark. 555, 905 S. W. 2d 835. No. 95­7612. Vargas v. Garner, Chairman, Georgia Board of Pardons and Paroles, et al. Sup. Ct. Ga. Certiorari denied. Reported below: 266 Ga. 141, 465 S. E. 2d 275. No. 95­7618. Jones v. Holvey et al. C. A. 3d Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1256. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1109 517 U. S. March 25, 1996 No. 95­7620. Claudio et al. v. Snyder, Warden, et al. C. A. 3d Cir. Certiorari denied. Reported below: 68 F. 3d 1573. No. 95­7623. Fields v. Carnahan et al. C. A. 8th Cir. Certiorari denied. No. 95­7626. Hill v. Schroubroek et al. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 1266. No. 95­7635. Cooper v. Malone et al. C. A. 8th Cir. Cer- tiorari denied. Reported below: 65 F. 3d 172. No. 95­7638. Bennett v. Texas. Ct. App. Tex., 10th Dist. Certiorari denied. No. 95­7639. Colbert v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. No. 95­7642. Simpson v. Cristino Rivera Mining Co. et al. Ct. App. N. M. Certiorari denied. No. 95­7647. Sobin v. Florida. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Reported below: 664 So. 2d 254. No. 95­7649. Walker v. Iowa. Dist. Ct. Iowa, Story County. Certiorari denied. No. 95­7650. Platzer v. Barbour, Superintendent, Twin Rivers Corrections Center. C. A. 9th Cir. Certiorari de- nied. Reported below: 61 F. 3d 912. No. 95­7655. Hinkle et al. v. Janklow, Governor of South Dakota. C. A. 8th Cir. Certiorari denied. No. 95­7656. Jones v. Bowersox, Superintendent, Potosi Correctional Center. C. A. 8th Cir. Certiorari denied. Re- ported below: 56 F. 3d 878. No. 95­7657. Batista v. Buffalo Police Department et al. C. A. 2d Cir. Certiorari denied. Reported below: 122 F. 3d 1055. No. 95­7658. Ramey v. Ashland Oil, Inc. Cir. Ct. Cabell County, W. Va. Certiorari denied. No. 95­7662. Martin v. Hill, Warden, et al. C. A. 9th Cir. Certiorari denied. Reported below: 53 F. 3d 339. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1110 OCTOBER TERM, 1995 March 25, 1996 517 U. S. No. 95­7663. Amos v. Esmor Mansfield, Inc., et al. C. A. 5th Cir. Certiorari denied. Reported below: 68 F. 3d 467. No. 95­7664. Bragg v. Bartlett, Superintendent, Elmira Correctional Facility. C. A. 2d Cir. Certiorari denied. No. 95­7676. Di Jorio v. California et al. C. A. 9th Cir. Certiorari denied. No. 95­7678. Dunn v. Singletary, Secretary, Florida De- partment of Corrections. C. A. 11th Cir. Certiorari denied. No. 95­7679. Woods v. Purkett, Superintendent, Farm- ington Correctional Center. C. A. 8th Cir. Certiorari de- nied. Reported below: 67 F. 3d 304. No. 95­7682. McCarver v. North Carolina. Sup. Ct. N. C. Certiorari denied. Reported below: 341 N. C. 364, 462 S. E. 2d 25. No. 95­7684. Jennings v. Haws, Warden, et al. C. A. 7th Cir. Certiorari denied. Reported below: 67 F. 3d 301. No. 95­7700. Salazar v. Norton, Attorney General of Colorado, et al. C. A. 10th Cir. Certiorari denied. Reported below: 72 F. 3d 138. No. 95­7713. Oliver v. Texas. Ct. App. Tex., 12th Dist. Certiorari denied. No. 95­7759. Sheppard v. Virginia. Sup. Ct. Va. Certio- rari denied. Reported below: 250 Va. 379, 464 S. E. 2d 131. No. 95­7766. Trivedi v. Department of Defense et al. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 545. No. 95­7789. Sudranski v. Brown, Secretary of Veterans Affairs. C. A. Fed. Cir. Certiorari denied. Reported below: 57 F. 3d 1083. No. 95­7795. Fry v. Virginia. Sup. Ct. Va. Certiorari de- nied. Reported below: 250 Va. 413, 463 S. E. 2d 433. No. 95­7818. Gonzalez v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 69 F. 3d 531. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1111 517 U. S. March 25, 1996 No. 95­7845. Hadley v. Washington, Director, Illinois Department of Corrections, et al. C. A. 7th Cir. Certio- rari denied. Reported below: 70 F. 3d 117. No. 95­7856. Misek-Falkoff v. International Business Machines Corp. C. A. 2d Cir. Certiorari denied. Reported below: 60 F. 3d 811. No. 95­7876. Sellers v. Boyd et al. C. A. 5th Cir. Certio- rari denied. Reported below: 68 F. 3d 469. No. 95­7888. Downs v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 71 F. 3d 878. No. 95­7889. Hauser v. Internal Revenue Service. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 1284. No. 95­7901. Booker v. United States. C. A. 7th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 488. No. 95­7902. Bryant v. United States; and No. 95­7994. Davis v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 68 F. 3d 1283. No. 95­7908. Daas v. United States. C. A. 6th Cir. Certio- rari denied. Reported below: 67 F. 3d 300. No. 95­7911. Blair v. Idaho. Ct. App. Idaho. Certiorari denied. No. 95­7913. Ross v. Norton, Attorney General of Colo- rado, et al. C. A. 10th Cir. Certiorari denied. Reported below: 61 F. 3d 916. No. 95­7916. Antonelli v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 274 Ill. App. 3d 1102, 691 N. E. 2d 1196. No. 95­7921. Hendricks v. Calderon, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 1032. No. 95­7922. Powell v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 1281. No. 95­7935. Sears v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 55 F. 3d 1525. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1112 OCTOBER TERM, 1995 March 25, 1996 517 U. S. No. 95­7936. Rodriguez v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 65 F. 3d 932. No. 95­7943. Castro-Vega v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 62 F. 3d 1425. No. 95­7945. Spriggs v. United States. Ct. App. D. C. Certiorari denied. No. 95­7948. Owens v. United States. C. A. 8th Cir. Cer- tiorari denied. Reported below: 72 F. 3d 134. No. 95­7949. Shorb v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 59 F. 3d 177. No. 95­7950. St. Clair v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 1281. No. 95­7951. Rodriguez-Solel Botello v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 78. No. 95­7954. Burke v. Ohio. Sup. Ct. Ohio. Certiorari de- nied. Reported below: 73 Ohio St. 3d 399, 653 N. E. 2d 242. No. 95­7965. Smith v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 300. No. 95­7966. Reliford v. Hodges, Chief Judge, United States District Court for the Middle District of Florida, et al. C. A. 11th Cir. Certiorari denied. Reported below: 61 F. 3d 30. No. 95­7967. Lane v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 66 F. 3d 317. No. 95­7971. Mullens v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 65 F. 3d 1560. No. 95­7972. Mills v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 60 F. 3d 826. No. 95­7973. Meeks v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 69 F. 3d 742. No. 95­7975. Mayles v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1256. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1113 517 U. S. March 25, 1996 No. 95­7982. Starks v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 72 F. 3d 920. No. 95­7985. Stevens v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 67 F. 3d 298. No. 95­7987. Brown v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1269. No. 95­7988. Johnson v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 71 F. 3d 539. No. 95­7989. Ayars et ux. v. New Jersey. Super. Ct. N. J., App. Div. Certiorari denied. No. 95­7995. Nelson v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 879. No. 95­7997. Easley v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 70 F. 3d 65. No. 95­7999. Earl v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 71 F. 3d 877. No. 95­8000. Frank v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 1280. No. 95­8002. Murray v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 67 F. 3d 687. No. 95­8004. Richey v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 878. No. 95­8006. Pacheco-Rodriguez v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 71 F. 3d 881. No. 95­8007. Pearson v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 77 F. 3d 497. No. 95­8010. Bryant v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 66 F. 3d 339. No. 95­8011. Zzie v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 72 F. 3d 887. No. 95­8012. Zzie v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 72 F. 3d 887. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1114 OCTOBER TERM, 1995 March 25, 1996 517 U. S. No. 95­8016. Joseph v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 71 F. 3d 882. No. 95­8019. Arevalo-Gamboa v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 545. No. 95­8021. Scott v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 107 F. 3d 5. No. 95­8022. Buchanan v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 818. No. 95­8023. Brown v. United States. C. A. 8th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 979. No. 95­8026. Gomez Toledo, aka Martinez v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 70 F. 3d 988. No. 95­8027. Villabona-Garnica v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 63 F. 3d 1051. No. 95­8029. Gonzalez-Lerma v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 71 F. 3d 1537. No. 95­8030. Gobert v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 1280. No. 95­8032. Fraiser v. United States; and Dumas v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 66 F. 3d 336 (first judgment); 64 F. 3d 1427 (second judgment). No. 95­8033. Harden v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 1263. No. 95­8034. Gardner v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 72 F. 3d 124. No. 95­8035. Hassan v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 113. No. 95­8039. Schake v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1258. No. 95­8040. Sherrow v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 465. 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1115 517 U. S. March 25, 1996 No. 95­8047. Barraza v. Arizona. Ct. App. Ariz. Certio- rari denied. No. 95­8049. Windle v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 74 F. 3d 997. No. 95­8054. Lawhorn v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 1263. No. 95­8055. Kwong v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 69 F. 3d 663. No. 95­8056. Martinez-Martinez v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 69 F. 3d 1215. No. 95­8066. Horton v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 70 F. 3d 1276. No. 95­8095. Campbell v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 70 F. 3d 1273. No. 95­8097. DeLeon-Rodriguez v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 70 F. 3d 764. No. 95­8098. Fox v. United States. C. A. 11th Cir. Certio- rari denied. Reported below: 62 F. 3d 400. No. 95­8105. Johnson v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 74 F. 3d 1236. No. 95­817. Norris, Director, Arkansas Department of Correction v. Robinson. C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari de- nied. Reported below: 60 F. 3d 457. No. 95­1008. Hewlett-Packard Co. v. Datagate, Inc. C. A. 9th Cir. Certiorari denied. Justice Breyer took no part in the consideration or decision of this petition. Reported below: 60 F. 3d 1421. Rehearing Denied No. 95­864. Maresca v. Commissioner of Patents and Trademarks, 516 U. S. 1075; No. 95­935. Ram v. De Galan et al., 516 U. S. 1116; No. 95­6791. Hall v. Groose, Superintendent, Jefferson City Correctional Center, et al., 516 U. S. 1080; 517ORD$$1q 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1116 OCTOBER TERM, 1995 March 25, April 1, 1996 517 U. S. No. 95­6885. Echols v. Thomas, Warden, 516 U. S. 1096; No. 95­6948. Chavez v. United States, 516 U. S. 1065; No. 95­6979. Roselin v. Board of Patent Appeals and Interferences, 516 U. S. 1097; and No. 95­7492. Spagnoulo v. United States, 516 U. S. 1138. Petitions for rehearing denied. April 1, 1996 Certiorari Granted-Vacated and Remanded No. 94­2130. First Advantage Insurance, Inc., et al. v. Green, Louisiana Commissioner of Insurance, et al. Ct. App. La., 1st Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Barnett Bank of Marion County, N. A. v. Nelson, ante, p. 25. Reported below: 652 So. 2d 562. No. 94­7980. Wingo v. United States. C. A. 6th Cir. Mo- tion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for fur- ther consideration in light of Rutledge v. United States, ante, p. 292; and Bailey v. United States, 516 U. S. 137 (1995). Re- ported below: 39 F. 3d 1182. No. 94­7981. Wingo v. United States. C. A. 6th Cir. Mo- tion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for fur- ther consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 39 F. 3d 1182. No. 95­296. McLeod v. Oregon Lithoprint, Inc., dba News-Register Publishing Co., et al. C. A. 9th Cir. Cer- tiorari granted, judgment vacated, and case remanded for further consideration in light of Varity Corp. v. Howe, 516 U. S. 489 (1996). Justice Scalia would deny certiorari. Reported below: 46 F. 3d 956. No. 95­7315. Aikens v. United States. C. A. 8th Cir. Mo- tion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for fur- ther consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 64 F. 3d 372. 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1117 517 U. S. April 1, 1996 Miscellaneous Orders. (See also Nos. 95­7587, 95­7588, and 95­ 7589, ante, p. 343.) No. D­1662. In re Disbarment of Brinkley. Crawford Wray Brinkley, of Conyers, Ga., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1663. In re Disbarment of Seikel. Harold Hans Seikel, of Garden City Park, N. Y., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1664. In re Disbarment of Seaman. John Tad Sea- man, of New Windsor, N. Y., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1665. In re Disbarment of Micci. Eugene D. Micci, of Derby, Conn., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1666. In re Disbarment of O'Kicki. Joseph F. O'Kicki, of Portage, Pa., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. M­49. Benoit v. Louisiana Public Service Commis- sion et al.; No. M­50. Martin v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division; and No. M­51. Delbruegge v. Cytron et al. Motions to direct the Clerk to file petitions for writs of certiorari out of time denied. No. 95­489. Colorado Republican Federal Campaign Committee et al. v. Federal Election Commission. C. A. 10th Cir. [Certiorari granted, 516 U. S. 1036.] Motion of Bren- nan Center for Justice for leave to file a brief as amicus curiae granted. 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1118 OCTOBER TERM, 1995 April 1, 1996 517 U. S. No. 95­754. Medtronic, Inc. v. Lohr et vir; and No. 95­886. Lohr et vir v. Medtronic, Inc. C. A. 11th Cir. [Certiorari granted, 516 U. S. 1087.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. No. 95­809. Lockheed Corp. et al. v. Spink. C. A. 9th Cir. [Certiorari granted, 516 U. S. 1087.] Motion of the Solicitor Gen- eral for leave to participate in oral argument as amicus curiae and for divided argument granted. No. 95­860. Smiley v. Citibank (South Dakota), N. A. Sup. Ct. Cal. [Certiorari granted, 516 U. S. 1087.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. No. 95­865. United States v. Winstar Corp. et al. C. A. Fed. Cir. [Certiorari granted, 516 U. S. 1087.] Motion of re- spondents for divided argument granted. No. 95­7693. Jones v. American Civil Liberties Union Foundation et al. C. A. 8th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. See this Court's Rule 39.8. Petitioner is allowed until April 22, 1996, within which to pay the docketing fee required by Rule 38(a) and to submit a petition in compliance with Rule 33.1 of the Rules of this Court. No. 95­7358. In re Ballard et al. Petition for writ of mandamus and/or prohibition denied. Probable Jurisdiction Noted No. 95­1201. Lopez et al. v. Monterey County, Califor- nia, et al. Appeal from D. C. N. D. Cal. Probable jurisdic- tion noted. Certiorari Granted No. 95­853. M. L. B. v. S. L. J., Individually and as Next Friend of the Minor Children, S. L. J. and M. L. J., et ux. Sup. Ct. Miss. Certiorari granted. No. 95­1232. General Motors Corp. v. Tracy, Tax Commis- sioner of Ohio. Sup. Ct. Ohio. Motion of Committee on State Taxation for leave to file a brief as amicus curiae granted. Cer- 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1119 517 U. S. April 1, 1996 tiorari granted. Reported below: 73 Ohio St. 3d 29, 652 N. E. 2d 188. Certiorari Denied No. 95­74. Stephens, Commissioner, Kentucky Depart- ment of Insurance, et al. v. Owensboro National Bank et al. C. A. 6th Cir. Certiorari denied. Reported below: 44 F. 3d 388. No. 95­836. Posner, a Minor, by His Parent, Posner v. Central Synagogue et al. C. A. 2d Cir. Certiorari denied. Reported below: 57 F. 3d 1064. No. 95­887. Waymer v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 55 F. 3d 564. No. 95­997. Mertz v. City of Key West. C. A. 11th Cir. Certiorari denied. Reported below: 66 F. 3d 341. No. 95­1035. Werner et al. v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 68 F. 3d 486. No. 95­1041. Reyes et al. v. Lugo. C. A. 5th Cir. Certio- rari denied. Reported below: 68 F. 3d 472. No. 95­1043. Kennedy v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 61 F. 3d 494. No. 95­1047. Noble et al. v. Columbia County Redevel- opment Authority. Commw. Ct. Pa. Certiorari denied. Re- ported below: 658 A. 2d 481. No. 95­1059. Richey v. Ohio. Sup. Ct. Ohio. Certiorari de- nied. Reported below: 73 Ohio St. 3d 523, 653 N. E. 2d 344. No. 95­1063. Blount v. Securities and Exchange Commis- sion. C. A. D. C. Cir. Certiorari denied. Reported below: 61 F. 3d 938. No. 95­1079. Meyer v. National Solid Wastes Manage- ment Assn. et al. C. A. 7th Cir. Certiorari denied. Reported below: 63 F. 3d 652. No. 95­1080. Petereit et al. v. S. B. Thomas, Inc. C. A. 2d Cir. Certiorari denied. Reported below: 63 F. 3d 1169. 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1120 OCTOBER TERM, 1995 April 1, 1996 517 U. S. No. 95­1086. Distajo et al. v. Doctor's Associates, Inc. C. A. 2d Cir. Certiorari denied. Reported below: 66 F. 3d 438. No. 95­1123. Godby v. Electrolux Corp. C. A. 11th Cir. Certiorari denied. Reported below: 58 F. 3d 641. No. 95­1186. New Hampshire Motor Transport et al. v. Town of Plaistow. C. A. 1st Cir. Certiorari denied. Re- ported below: 67 F. 3d 326. No. 95­1194. Peloquin v. United of Omaha Life Insur- ance Co. Dist. Ct. App. Fla., 4th Dist. Certiorari denied. Re- ported below: 660 So. 2d 1069. No. 95­1202. Hartsell, a Minor, by Next Friend, Upton v. Fort Sanders Regional Medical Center et al. Ct. App. Tenn. Certiorari denied. Reported below: 905 S. W. 2d 944. No. 95­1211. Nicit v. Nicit. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. Reported below: 217 App. Div. 2d 1006, 631 N. Y. S. 2d 271. No. 95­1212. Bolt v. State Farm Fire & Casualty Co. C. A. 9th Cir. Certiorari denied. No. 95­1213. Deloatch v. Hughes. C. A. 4th Cir. Certio- rari denied. Reported below: 65 F. 3d 166. No. 95­1216. Cook et al. v. City of Cincinnati et al. Ct. App. Ohio, Hamilton County. Certiorari denied. Reported below: 103 Ohio App. 3d 80, 658 N. E. 2d 814. No. 95­1217. Dushaw v. Roadway Express, Inc., et al. C. A. 6th Cir. Certiorari denied. Reported below: 66 F. 3d 129. No. 95­1218. Alligator Farms, Inc., et al. v. Groner et al. Ct. App. La., 3d Cir. Certiorari denied. Reported below: 656 So. 2d 62. No. 95­1227. Louisiana Department of Transportation and Development v. Doucet et al. Ct. App. La., 1st Cir. Certiorari denied. Reported below: 657 So. 2d 92. No. 95­1247. Rosenberg, Individually, and as Admin- istratrix of the Goods of Rosenberg, Deceased v. Wacht- 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1121 517 U. S. April 1, 1996 ler et al. C. A. 2d Cir. Certiorari denied. Reported below: 89 F. 3d 825. No. 95­1250. Dolcefino v. Ray. Sup. Ct. Tex. Certiorari denied. No. 95­1260. Eagerton, Alabama Commissioner of Reve- nue, et al. v. Owner-Operator Independent Drivers Assn., Inc., et al. Ct. Civ. App. Ala. Certiorari denied. Reported below: 671 So. 2d 674. No. 95­1296. Talley v. Flathead Valley Community Col- lege et al. Sup. Ct. Mont. Certiorari denied. Reported below: 273 Mont. 336, 903 P. 2d 789. No. 95­1300. Crawford et al. v. Roane et al. C. A. 6th Cir. Certiorari denied. Reported below: 53 F. 3d 750. No. 95­1332. Silva v. City of Madison, Wisconsin. C. A. 7th Cir. Certiorari denied. Reported below: 69 F. 3d 1368. No. 95­1338. Tse et al. v. Schwarzschild. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 293. No. 95­1356. Trujillo v. Illinois. App. Ct. Ill., 2d Dist. Certiorari denied. Reported below: 274 Ill. App. 3d 1119, 691 N. E. 2d 1204. No. 95­1358. Hess v. MacAskill, Director, Women's Cor- rectional Center. C. A. 9th Cir. Certiorari denied. Re- ported below: 67 F. 3d 307. No. 95­1366. Hanlin et vir v. Superior Court of Califor- nia, Santa Clara County (American General Finance, Inc., Real Party in Interest). Ct. App. Cal., 6th App. Dist. Certiorari denied. No. 95­1370. Carr v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 69 F. 3d 536. No. 95­1401. Libutti v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 72 F. 3d 124. No. 95­1409. Estacio v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 64 F. 3d 477. No. 95­1433. Fields et al. v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 72 F. 3d 887. 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1122 OCTOBER TERM, 1995 April 1, 1996 517 U. S. No. 95­6830. Smith v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1268. No. 95­6897. Roberts v. Chater, Commissioner of Social Security. C. A. 9th Cir. Certiorari denied. Reported below: 66 F. 3d 179. No. 95­7176. Bracey v. Pennsylvania. Sup. Ct. Pa. Cer- tiorari denied. Reported below: 541 Pa. 322, 662 A. 2d 1062. No. 95­7290. Ernesto Espinosa v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 66 F. 3d 322. No. 95­7302. Cullum v. Hawk, Director, Bureau of Pris- ons, et al. C. A. 7th Cir. Certiorari denied. Reported below: 67 F. 3d 301. No. 95­7313. Nakamoto v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 310. No. 95­7316. Franklin v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 167 Ill. 2d 1, 656 N. E. 2d 750. No. 95­7319. Jones v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. Reported below: 899 P. 2d 635. No. 95­7336. Townzen v. County of El Dorado, Califor- nia, et al. C. A. 9th Cir. Certiorari denied. Reported below: 60 F. 3d 835. No. 95­7374. Dingle v. Victory Savings Bank et al. Sup. Ct. Cal. Certiorari denied. No. 95­7414. Salzer v. Dellinger et al. C. A. 7th Cir. Certiorari denied. Reported below: 54 F. 3d 779. No. 95­7530. Johnson v. Johnson, Director, Texas De- partment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 68 F. 3d 106. No. 95­7673. Smith v. Hargett, Superintendent, Missis- sippi State Penitentiary. C. A. 5th Cir. Certiorari denied. Reported below: 68 F. 3d 472. No. 95­7681. Silverburg v. Ashley, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 66 F. 3d 326. 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1123 517 U. S. April 1, 1996 No. 95­7696. Debbs et ux. v. California Workers' Com- pensation Appeals Board et al. C. A. 9th Cir. Certiorari denied. Reported below: 60 F. 3d 832. No. 95­7698. Page et al. v. Texas Board of Pardons and Parole et al. C. A. 5th Cir. Certiorari denied. Reported below: 68 F. 3d 472. No. 95­7701. Cotner v. Nichols. C. A. 10th Cir. Certiorari denied. Reported below: 69 F. 3d 547. No. 95­7702. Bowen v. Gundy et al. C. A. 6th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 115. No. 95­7709. Burr v. North Carolina. Sup. Ct. N. C. Certiorari denied. Reported below: 341 N. C. 263, 461 S. E. 2d 602. No. 95­7714. Rodriguez v. Florida. Dist. Ct. App. Fla., 1st Dist. Certiorari denied. Reported below: 657 So. 2d 1166. No. 95­7718. Walker v. City of Ames, Iowa. Dist. Ct. Iowa, Story County. Certiorari denied. No. 95­7724. Banks v. County of San Diego, California, et al. C. A. 9th Cir. Certiorari denied. No. 95­7729. Frye v. North Carolina. Sup. Ct. N. C. Cer- tiorari denied. Reported below: 341 N. C. 470, 461 S. E. 2d 664. No. 95­7731. Brito v. New York. Ct. App. N. Y. Certio- rari denied. No. 95­7735. Free v. California. C. A. 9th Cir. Certio- rari denied. No. 95­7749. Winters v. Ohio Adult Parole Authority. C. A. 6th Cir. Certiorari denied. No. 95­7752. Salazar v. Arizona. Super. Ct. Ariz., Pima County. Certiorari denied. No. 95­7756. Tootle v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 65 F. 3d 381. No. 95­7760. Saathoff v. Hesse, Warden, et al. C. A. 10th Cir. Certiorari denied. Reported below: 72 F. 3d 138. 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1124 OCTOBER TERM, 1995 April 1, 1996 517 U. S. No. 95­7771. Sharp v. Cawley. Ct. App. Va. Certiorari denied. Reported below: 19 Va. App. 709, 453 S. E. 2d 580. No. 95­7774. Mack v. Skupniewitz, Clerk, United States District Court for the Western District of Wisconsin, et al. C. A. 7th Cir. Certiorari denied. Reported below: 73 F. 3d 702. No. 95­7785. Jackson v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. No. 95­7821. Brown v. Angelone, Director, Virginia De- partment of Corrections. C. A. 4th Cir. Certiorari denied. Reported below: 60 F. 3d 820. No. 95­7829. Oxford v. Bowersox, Superintendent, Po- tosi Correctional Center. C. A. 8th Cir. Certiorari denied. Reported below: 59 F. 3d 741. No. 95­7872. Patin v. California. Sup. Ct. Cal. Certio- rari denied. No. 95­7881. Guzman Zayas v. Brown, Secretary of Vet- erans Affairs. C. A. Fed. Cir. Certiorari denied. Reported below: 73 F. 3d 378. No. 95­7884. Caldwell v. Arkansas. Sup. Ct. Ark. Cer- tiorari denied. Reported below: 322 Ark. 543, 910 S. W. 2d 667. No. 95­7892. Graves v. United States Court of Appeals for the Federal Circuit. C. A. Fed. Cir. Certiorari denied. Reported below: 69 F. 3d 1147. No. 95­7912. Patterson v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­7927. Mitchell v. Bilby-Knight. C. A. 5th Cir. Certiorari denied. Reported below: 56 F. 3d 1384. No. 95­7942. Casares v. Texas. Ct. App. Tex., 13th Dist. Certiorari denied. No. 95­7979. Briggs v. United States. C. A. Armed Forces. Certiorari denied. Reported below: 42 M. J. 367. 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1125 517 U. S. April 1, 1996 No. 95­7996. Ford v. Minnesota. Sup. Ct. Minn. Certio- rari denied. Reported below: 539 N. W. 2d 214. No. 95­8003. Sartin v. Virginia et al. C. A. 4th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 296. No. 95­8018. Butler v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 64 F. 3d 659. No. 95­8020. Baptiste v. Texas. Ct. App. Tex., 1st Dist. Certiorari denied. No. 95­8036. Hamill v. Ferguson, Warden, et al. Sup. Ct. Wyo. Certiorari denied. No. 95­8037. Felton v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 878. No. 95­8046. Saunders v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 66 F. 3d 318. No. 95­8048. Akech v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 72 F. 3d 122. No. 95­8050. Reliford v. United States. C. A. 11th Cir. Certiorari denied. No. 95­8051. Reliford v. Scott, Warden, et al. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 1285. No. 95­8070. Dixon v. Maass, Superintendent, Oregon State Penitentiary. C. A. 9th Cir. Certiorari denied. Re- ported below: 67 F. 3d 306. No. 95­8099. Shelton v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 66 F. 3d 991. No. 95­8100. Byrd v. United States. C. A. 3d Cir. Certio- rari denied. Reported below: 68 F. 3d 457. No. 95­8104. Jennings v. United States; and No. 95­8109. Jennings v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 72 F. 3d 887. No. 95­8106. Matthews v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 1264. 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1126 OCTOBER TERM, 1995 April 1, 1996 517 U. S. No. 95­8117. Coupar v. Turnbo, Regional Director, Fed- eral Bureau of Prisons, South Central Region. C. A. 5th Cir. Certiorari denied. No. 95­8119. Sinis v. United States. C. A. 2d Cir. Certio- rari denied. Reported below: 89 F. 3d 826. No. 95­8120. Bergmann v. McCaughtry, Warden. Ct. App. Wis. Certiorari denied. Reported below: 197 Wis. 2d 956, 543 N. W. 2d 867. No. 95­8122. Castner v. Whalen, Warden. C. A. 10th Cir. Certiorari denied. Reported below: 72 F. 3d 137. No. 95­8123. Bullock v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 171. No. 95­8126. Blackman et al. v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 66 F. 3d 1572. No. 95­8127. Bell v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 126. No. 95­8129. Riggio v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 336. No. 95­8133. Bonner v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 818. No. 95­8139. Underwood v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 67 F. 3d 301. No. 95­8140. Winter v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 70 F. 3d 655. No. 95­8144. Munoz v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 63 F. 3d 1051. No. 95­8145. McCarthy v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 72 F. 3d 124. No. 95­8151. Mauro v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 67 F. 3d 292. No. 95­8155. Becker v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 67 F. 3d 292. 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) ORDERS 1127 517 U. S. April 1, 1996 No. 95­8159. McBride v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 74 F. 3d 1229. No. 95­8162. Priore v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1258. No. 95­8163. Scott v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 310. No. 95­8164. Tamakloe v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 72 F. 3d 124. No. 95­8165. Trueblood v. United States et al. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 474. No. 95­8169. Hufstetler v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 74 F. 3d 1238. No. 95­8170. Balderas Garcia v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 72 F. 3d 130. No. 95­8171. Escamilla v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 835. No. 95­8172. Elliott v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 74 F. 3d 1237. No. 95­8173. Ferrer v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 74 F. 3d 1251. No. 95­8174. Hart v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 854. No. 95­8175. Hutching v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 70 F. 3d 1273. No. 95­8176. Golb v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 69 F. 3d 1417. No. 95­8178. McKenzie v. United States. Ct. App. D. C. Certiorari denied. Reported below: 659 A. 2d 838. No. 95­8179. Nolan v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 55 F. 3d 1525. 517ORD$$1r 01-05-99 17:50:20 PGT*ORD1BV (Bound Volume) 1128 OCTOBER TERM, 1995 April 1, 1996 517 U. S. No. 95­8180. Jackson v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 72 F. 3d 128. No. 95­8184. Watts v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 790. No. 95­8185. Urena-Vasquez v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 1281. No. 95­8186. Thomas v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 575. No. 95­8187. Usry v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1269. No. 95­8194. Coleman v. Hofbauer, Warden. C. A. 6th Cir. Certiorari denied. No. 95­1190. McClaran, Director, Child Support Serv- ices, Tennessee Department of Human Services v. Davis et al. Sup. Ct. Tenn. Motion of respondents for leave to pro- ceed in forma pauperis granted. Certiorari denied. Reported below: 909 S. W. 2d 412. No. 95­1205. Idaho v. Lankford. Sup. Ct. Idaho. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 127 Idaho 608, 903 P. 2d 1305. No. 95­1219. Newman v. Consolidation Coal Co. C. A. 3d Cir. Motion of petitioner for leave to proceed as a seaman granted. Certiorari denied. No. 95­1221. Hyman v. Virginia Department of Taxation. Sup. Ct. Va. Motion of M. Patton Echols, Jr., and Barbara B. Tanes to be substituted in place of Joseph B. Hyman, deceased, granted. Certiorari denied. Rehearing Denied No. 95­630. Baird v. United States, 516 U. S. 1111; No. 95­934. Johnson v. Johnson et al., 516 U. S. 1115; No. 95­6957. Halstead v. Florida et al., 516 U. S. 1123; No. 95­7006. In re Craig, 516 U. S. 1110; and No. 95­7120. Hernandez v. New Mexico et al., 516 U. S. 1126. Petitions for rehearing denied. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1129 517 U. S. April 9, 10, 15, 1996 April 9, 1996 Dismissal Under Rule 46 No. 95­1487. Altstatt v. Oregon State Bar. Sup. Ct. Ore. Certiorari dismissed under this Court's Rule 46.1. Reported below: 321 Ore. 324, 897 P. 2d 1164. Miscellaneous Order. (See No. A­828, ante, p. 345.) April 10, 1996 Certiorari Denied No. 95­8560 (A­832). Williams v. Bowersox, Superintend- ent, Potosi Correctional Center. C. A. 8th Cir. Applica- tion for stay of execution of sentence of death, presented to Justice Thomas, and by him referred to the Court, denied. Certiorari denied. Reported below: 82 F. 3d 781. April 15, 1996 Dismissal Under Rule 46 No. 95­1230. BellSouth Telecommunications, Inc., et al. v. Federal Communications Commission et al. C. A. D. C. Cir. Certiorari dismissed as to Telephone Utilities Exchange Carrier Association under this Court's Rule 46. Reported below: 59 F. 3d 1407. Certiorari Granted-Vacated and Remanded No. 94­357. Washington et al. v. Spokane Tribe of Indi- ans. C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Seminole Tribe of Fla. v. Florida, ante, p. 44. Reported below: 28 F. 3d 991. No. 94­1029. Oklahoma v. Ponca Tribe of Oklahoma. C. A. 10th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Seminole Tribe of Fla. v. Florida, ante, p. 44. Reported below: 37 F. 3d 1422. No. 94­1343. Montana et al. v. Fort Belknap Indian Com- munity of the Fort Belknap Indian Reservation; and No. 94­1344. Jessup, Administrator of the Gaming Con- trol Division, et al. v. Blackfeet Tribe of the Blackfeet Reservation. C. A. 9th Cir. Certiorari granted, judgment 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1130 OCTOBER TERM, 1995 April 15, 1996 517 U. S. vacated, and cases remanded for further consideration in light of Seminole Tribe of Fla. v. Florida, ante, p. 44. Reported below: 39 F. 3d 1186. No. 95­561. Ohio Agricultural Commodity Depositors Fund et al. v. Mahern, Trustee, Merchants Grain, Inc. C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Seminole Tribe of Fla. v. Florida, ante, p. 44. Reported below: 59 F. 3d 630. No. 95­7356. Allen v. United States. C. A. 9th Cir. Mo- tion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for fur- ther consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 56 F. 3d 73. No. 95­7400. Netter v. United States. C. A. 8th Cir. Mo- tion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for fur- ther consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 62 F. 3d 232. Miscellaneous Orders No. A­507 (95­8468). Cooper v. Connecticut. App. Ct. Conn. Application for stay, addressed to Justice Kennedy and referred to the Court, denied. No. A­705. Klat v. County of San Diego et al. Super. Ct. Cal., County of San Diego. Application for stay, addressed to The Chief Justice and referred to the Court, denied. No. D­1628. In re Disbarment of Hills. Disbarment en- tered. [For earlier order herein, see 516 U. S. 1038.] No. D­1634. In re Disbarment of Wells. Edward G. Wells, of Palatine, Ill., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to the practice of law before this Court. The rule to show cause, issued on January 22, 1996 [516 U. S. 1090], is discharged. No. D­1638. In re Disbarment of Bachstein. Disbarment entered. [For earlier order herein, see 516 U. S. 1106.] 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1131 517 U. S. April 15, 1996 No. D­1640. In re Disbarment of Benton. Disbarment entered. [For earlier order herein, see 516 U. S. 1106.] No. D­1641. In re Disbarment of Marcus. Disbarment entered. [For earlier order herein, see 516 U. S. 1107.] No. D­1644. In re Disbarment of Guth. Disbarment en- tered. [For earlier order herein, see 516 U. S. 1107.] No. D­1646. In re Disbarment of Glover. Disbarment entered. [For earlier order herein, see 516 U. S. 1107.] No. D­1647. In re Disbarment of McCloskey. Disbar- ment entered. [For earlier order herein, see 516 U. S. 1107.] No. D­1659. In re Disbarment of Berg. Howard M. Berg, of Boca Raton, Fla., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to the practice of law before this Court. The rule to show cause, issued on March 18, 1996 [516 U. S. 1169], is discharged. No. D­1667. In re Disbarment of Glenn. John Wheeler Glenn, of Baltimore, Md., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1668. In re Disbarment of Kelly. Lawrence Vin- cent Kelly, of Hasbrouck Heights, N. J., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1669. In re Disbarment of Ewing. Charles William Ewing, of Hilliard, Ohio, is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, re- quiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1670. In re Disbarment of Ready. James Sanders Ready, Jr., of Carlsbad, Cal., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1132 OCTOBER TERM, 1995 April 15, 1996 517 U. S. No. M­52. Harris v. Montgomery County Department of Social Services; No. M­53. Schwartz et al. v. Aultman Health Services Assn., dba Aultman Hospital, et al.; No. M­54. Clifford v. Glickman, Secretary of Agricul- ture; and No. M­55. Clifton v. United States. Motions to direct the Clerk to file petitions for writs of certiorari out of time denied. No. M­56. Pandey v. Paul Revere Life Insurance Co. et al. Motion to direct the Clerk to file petition for writ of certiorari out of time denied. Justice Breyer took no part in the consideration or decision of this motion. No. 95­346. United States v. $405,089.23 in United States Currency et al. C. A. 9th Cir. [Certiorari granted, 516 U. S. 1070.] Motion of respondent James Wren for leave to proceed further herein in forma pauperis granted. No. 95­7186. Jones v. ABC­TV et al. C. A. 8th Cir. Mo- tion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [516 U. S. 363] denied. Justice Breyer took no part in the consideration or decision of this motion. No. 95­7894. Shieh v. Hathaway et al. C. A. 9th Cir.; and No. 95­7895. Shieh v. Ebershoff et al. C. A. 9th Cir. Motions of petitioner for leave to proceed in forma pauperis denied. See this Court's Rule 39.8. Petitioner is allowed until May 6, 1996, within which to pay the docketing fees required by Rule 38(a) and to submit petitions in compliance with Rule 33.1 of the Rules of this Court. No. 95­8261. In re Zapata. Petition for writ of habeas cor- pus denied. No. 95­7861. In re Roy; and No. 95­8028. In re Warren. Petitions for writs of manda- mus denied. Certiorari Granted No. 94­1474. Idaho et al. v. Coeur d'Alene Tribe of Idaho et al. C. A. 9th Cir. Certiorari granted. Reported below: 42 F. 3d 1244. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1133 517 U. S. April 15, 1996 No. 95­789. California Division of Labor Standards En- forcement et al. v. Dillingham Construction, N. A., Inc., et al. C. A. 9th Cir. Certiorari granted. Reported below: 57 F. 3d 712. No. 95­928. Atherton et al. v. Federal Deposit Insur- ance Corporation, as Receiver for City Savings, F. S. B. C. A. 3d Cir. Certiorari granted. Reported below: 57 F. 3d 1231. No. 95­1263. Caterpillar Inc. v. Lewis. C. A. 6th Cir. Certiorari granted limited to Questions 1 and 2 presented by the petition. Reported below: 68 F. 3d 474. Certiorari Denied No. 94­35. Alabama et al. v. Poarch Band of Creek Indians; No. 94­189. Poarch Band of Creek Indians v. Alabama et al.; and No. 94­219. Florida et al. v. Seminole Tribe of Florida. C. A. 11th Cir. Certiorari denied. Reported below: 11 F. 3d 1016. No. 94­1647. Coeur d'Alene Tribe of Idaho et al. v. Idaho et al. C. A. 9th Cir. Certiorari denied. Reported below: 42 F. 3d 1244. No. 95­858. Chick v. United States. C. A. 9th Cir. Certio- rari denied. Reported below: 61 F. 3d 682. No. 95­878. Production Plated Plastics, Inc., et al. v. United States et al. C. A. 6th Cir. Certiorari denied. Re- ported below: 61 F. 3d 904. No. 95­949. Teamsters Local 115, Affiliated With Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, et al. v. National Labor Relations Board. C. A. 3d Cir. Certiorari denied. No. 95­1003. Montoya v. Johnson, Director, Texas De- partment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 65 F. 3d 405. No. 95­1049. Tho Dinh Tran v. Dinh Truong Tran et al.; and 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1134 OCTOBER TERM, 1995 April 15, 1996 517 U. S. No. 95­1309. Dinh Truong Tran et al. v. Tho Dinh Tran. C. A. 2d Cir. Certiorari denied. Reported below: 54 F. 3d 115. No. 95­1089. Pittston Co. et al. v. Babbitt, Secretary of the Interior, et al. C. A. 4th Cir. Certiorari denied. Re- ported below: 66 F. 3d 714. No. 95­1102. FGS Constructors, Inc. v. United States et al. C. A. 8th Cir. Certiorari denied. Reported below: 64 F. 3d 1230. No. 95­1114. Boggs v. Bowron et al. C. A. D. C. Cir. Cer- tiorari denied. Reported below: 67 F. 3d 972. No. 95­1139. Dostie v. Maine. Sup. Jud. Ct. Me. Certio- rari denied. No. 95­1144. DeRewal v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 66 F. 3d 52. No. 95­1229. Knight, dba Steve Knight Steel Fabrica- tors, et al. v. United States Fidelity & Guaranty Insur- ance Co. C. A. 5th Cir. Certiorari denied. Reported below: 65 F. 3d 34. No. 95­1245. Steinberg v. Bingham, Ancillary Adminis- trator of the Estate of Marley, et al.; and No. 95­1276. Zolt et al. v. Bingham, Ancillary Adminis- trator of the Estate of Marley, et al. C. A. 2d Cir. Cer- tiorari denied. Reported below: 66 F. 3d 553. No. 95­1248. Neely, By and Through Her Parents, Neely et ux. v. Rutherford County Schools. C. A. 6th Cir. Cer- tiorari denied. Reported below: 68 F. 3d 965. No. 95­1256. Dolenz v. Southwest Media Corp. et al. Ct. App. Tex., 5th Dist. Certiorari denied. No. 95­1261. Green v. United Pentecostal Church In- ternational. Ct. App. Tex., 3d Dist. Certiorari denied. Re- ported below: 899 S. W. 2d 28. No. 95­1262. Fishburne et al. v. Cinergi Productions, Inc., et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­1264. Central Cartage Co. v. Central States, Southeast and Southwest Areas Pension Fund et al. C. A. 7th Cir. Certiorari denied. Reported below: 69 F. 3d 1312. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1135 517 U. S. April 15, 1996 No. 95­1269. Wodarski v. American Manufacturers Mutual Insurance Co. C. A. 10th Cir. Certiorari denied. Reported below: 68 F. 3d 483. No. 95­1270. Scott P., By and Through His Guardians, Bess P. et al. v. Carlisle Area School District. C. A. 3d Cir. Certiorari denied. Reported below: 62 F. 3d 520. No. 95­1271. USA Recycling, Inc., et al. v. Town of Baby- lon et al. C. A. 2d Cir. Certiorari denied. Reported below: 66 F. 3d 1272. No. 95­1277. Litz v. Thomas. Ct. App. Cal., 4th App. Dist. Certiorari denied. No. 95­1279. Einhorn et al. v. LaChance et al. Ct. App. Tex., 1st Dist. Certiorari denied. No. 95­1281. McCreary v. Kentucky. Cir. Ct. Jefferson County, Ky. Certiorari denied. No. 95­1282. Robillard, Administratrix of the Estate of Robillard, Deceased, et al. v. Baton Rouge Marine Con- tractors, Inc., et al. C. A. 5th Cir. Certiorari denied. Re- ported below: 71 F. 3d 877. No. 95­1283. Jersey Carting, Inc., et al. v. Board of Regulatory Commissioners of New Jersey. Super. Ct. N. J., App. Div. Certiorari denied. No. 95­1285. Wilson v. State Farm Fire & Casualty In- surance Co. C. A. 7th Cir. Certiorari denied. No. 95­1289. Tharp et al. v. Iowa Department of Correc- tions et al. C. A. 8th Cir. Certiorari denied. Reported below: 68 F. 3d 223. No. 95­1291. Carter et al. v. Mrozowski et al. Commw. Ct. Pa. Certiorari denied. Reported below: 661 A. 2d 44. No. 95­1292. Jacobs v. Kern Community College District. Ct. App. Cal., 5th App. Dist. Certiorari denied. No. 95­1295. Dayton Area Visually Impaired Persons, Inc., et al. v. Montgomery, Attorney General of Ohio, 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1136 OCTOBER TERM, 1995 April 15, 1996 517 U. S. et al. C. A. 6th Cir. Certiorari denied. Reported below: 70 F. 3d 1474. No. 95­1303. Florida v. Rayfield. Dist. Ct. App. Fla., 4th Dist. Certiorari denied. Reported below: 664 So. 2d 6. No. 95­1304. Florida v. Jones. Dist. Ct. App. Fla., 4th Dist. Certiorari denied. Reported below: 662 So. 2d 365. No. 95­1307. Perry v. Lewter. Sup. Ct. Ala. Certiorari denied. Reported below: 667 So. 2d 748. No. 95­1314. Clements v. Babcock & Wilcox Co. et al. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 1261. No. 95­1317. Miller v. Purkett, Superintendent, Farm- ington Correctional Center. C. A. 8th Cir. Certiorari denied. No. 95­1326. Village of Lake Barrington et al. v. Hogan et al. App. Ct. Ill., 2d Dist. Certiorari denied. Reported below: 272 Ill. App. 3d 225, 649 N. E. 2d 1366. No. 95­1331. Ortiz v. Department of Health and Human Services. C. A. 2d Cir. Certiorari denied. Reported below: 70 F. 3d 729. No. 95­1343. Smith et ux. v. R. S. L. Layout & Design, Inc. Sup. Ct. N. H. Certiorari denied. No. 95­1345. Berger et ux. v. City of Morgan Hill, Cali- fornia. Ct. App. Cal., 6th App. Dist. Certiorari denied. No. 95­1347. Price Co. et al. v. Fecht et al. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 1078. No. 95­1377. Hospital San Francisco, Inc. v. Correa Gon- zalez et al. C. A. 1st Cir. Certiorari denied. Reported below: 69 F. 3d 1184. No. 95­1379. Carlson v. ICI Americas Inc. et al. C. A. 7th Cir. Certiorari denied. Reported below: 64 F. 3d 327. No. 95­1382. Newman et ux. v. Worcester County De- partment of Social Services. Ct. App. Ind. Certiorari de- nied. Reported below: 650 N. E. 2d 726. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1137 517 U. S. April 15, 1996 No. 95­1391. Dunstable-Groton Corp., Assignee of J & C Homes, Inc. v. Groton Planning Board. App. Ct. Mass. Certiorari denied. Reported below: 39 Mass. App. 1111, 656 N. E. 2d 589. No. 95­1394. Jiricko v. Lakin & Herndon et al. C. A. 7th Cir. Certiorari denied. Reported below: 69 F. 3d 539. No. 95­1396. Broadwater v. Corbett, Attorney General of Pennsylvania, et al. C. A. 3d Cir. Certiorari denied. No. 95­1404. Ziomek v. City and County of San Fran- cisco. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 311. No. 95­1428. Fluehr v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1228. No. 95­1446. Curtis v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 113. No. 95­1447. Jones et al. v. Chemetron Corp. C. A. 3d Cir. Certiorari denied. Reported below: 72 F. 3d 341. No. 95­1453. Pudlo v. Illinois. App. Ct. Ill., 1st Dist. Cer- tiorari denied. Reported below: 272 Ill. App. 3d 1002, 651 N. E. 2d 676. No. 95­1454. Hernandez-Vargas v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 62 F. 3d 1429. No. 95­1458. Celestial Church of Christ, Inc. v. City of Chicago. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 269 Ill. App. 3d 1113, 685 N. E. 2d 446. No. 95­1481. Chapa v. Jim Wells County et al. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 875. No. 95­1485. Bertoli v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1228. No. 95­1504. Marcinek v. Commissioner of Internal Rev- enue. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 135. No. 95­6845. Bellrichard v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 62 F. 3d 1046. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1138 OCTOBER TERM, 1995 April 15, 1996 517 U. S. No. 95­6966. Simon v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 56 F. 3d 75. No. 95­6988. Nobles v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 676. No. 95­6993. Ibalio v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 841. No. 95­6996. Quiba v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1433. No. 95­6997. Siwa v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1433. No. 95­7004. Mauricio v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 841. No. 95­7007. De Jesus v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1431. No. 95­7008. Daguinotnot v. Office of Personnel Man- agement. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1431. No. 95­7009. Filamor v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 841. No. 95­7010. Dungca v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 841. No. 95­7012. Dieguez-Alvarez v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 69 F. 3d 550 and 551. No. 95­7014. Pantilon v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1432. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1139 517 U. S. April 15, 1996 No. 95­7041. Carpio v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 672. No. 95­7042. Cayanan v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1432. No. 95­7043. Alferos v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 841. No. 95­7044. Corpuz v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 677. No. 95­7045. Bondad v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1432. No. 95­7046. Calisaan v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1432. No. 95­7054. Jackson v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 59 F. 3d 1421. No. 95­7066. Rabe v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 842. No. 95­7081. Cabiles v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1432. No. 95­7088. Danao v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 672. No. 95­7089. Florentino v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 672. No. 95­7134. Hardy et ux. v. City of Orlando. C. A. 11th Cir. Certiorari denied. Reported below: 62 F. 3d 400. No. 95­7145. Isla v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 676. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1140 OCTOBER TERM, 1995 April 15, 1996 517 U. S. No. 95­7147. Navarro v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 842. No. 95­7153. Campbell v. Texas. Ct. Crim. App. Tex. Cer- tiorari denied. Reported below: 910 S. W. 2d 475. No. 95­7182. Magante v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1431. No. 95­7231. Custodio v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 841. No. 95­7257. Alcones v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 842. No. 95­7263. Maglalang v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 672. No. 95­7320. Taylor v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 166 Ill. 2d 414, 655 N. E. 2d 901. No. 95­7321. Dela Rea v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 841. No. 95­7330. Grant-Chase v. New Hampshire. Sup. Ct. N. H. Certiorari denied. Reported below: 140 N. H. 264, 665 A. 2d 380. No. 95­7366. Owens v. Texas. Ct. Crim. App. Tex. Certio- rari denied. No. 95­7389. Coronel v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1432. No. 95­7442. Palo v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 842. No. 95­7450. Mayo v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1431. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1141 517 U. S. April 15, 1996 No. 95­7463. Tillo v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 60 F. 3d 842. No. 95­7483. Sanchez v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1432. No. 95­7485. Santos v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 61 F. 3d 919. No. 95­7491. Delos Reyes v. Office of Personnel Man- agement. C. A. Fed. Cir. Certiorari denied. Reported below: 66 F. 3d 347. No. 95­7511. Clark v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 1154. No. 95­7517. Sultan v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. No. 95­7641. Reyes v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1431. No. 95­7725. Foronda v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 672. No. 95­7726. Garcia v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1431. No. 95­7751. Bergmann v. McCollough. Ct. App. Ga. Certiorari denied. Reported below: 218 Ga. App. 353, 461 S. E. 2d 544. No. 95­7758. Hai Cong Pham v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. No. 95­7769. Smith v. Pennsylvania. C. A. 3d Cir. Certio- rari denied. No. 95­7790. Baijnath v. Chan, Senior Minister of Trade for Import and Export, Georgetown, Guyana, South America, et al. C. A. 3d Cir. Certiorari denied. Reported below: 60 F. 3d 813. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1142 OCTOBER TERM, 1995 April 15, 1996 517 U. S. No. 95­7798. Nunez v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. No. 95­7800. Bernardez v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 68 F. 3d 488. No. 95­7802. Cluck v. Osherow, Trustee. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 876. No. 95­7804. Tarabolski v. Town of Sharon, Massachu- setts, et al. C. A. 1st Cir. Certiorari denied. Reported below: 70 F. 3d 110. No. 95­7810. Dykes v. Southeastern Pennsylvania Transportation Authority et al. C. A. 3d Cir. Certiorari denied. Reported below: 68 F. 3d 1564. No. 95­7814. Hill v. King, Warden. C. A. 11th Cir. Cer- tiorari denied. Reported below: 66 F. 3d 340. No. 95­7816. Escusa v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1431. No. 95­7817. Graves v. Burrell, Judge, Justice Court of Sunflower County. Sup. Ct. Miss. Certiorari denied. No. 95­7819. Dubuc v. Hopper, Judge, Tulsa County. Ct. Crim. App. Okla. Certiorari denied. No. 95­7820. Gibson v. Jones, Warden, et al. C. A. 9th Cir. Certiorari denied. No. 95­7822. Andrews v. Georgia State Board of Pardons and Paroles et al. C. A. 11th Cir. Certiorari denied. No. 95­7823. Billups v. Schotten, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 67 F. 3d 299. No. 95­7824. Banks v. California et al. C. A. 9th Cir. Certiorari denied. No. 95­7827. Billberry v. International Brotherhood of Electrical Workers, Local 47, et al. C. A. 9th Cir. Certiorari denied. Reported below: 57 F. 3d 1076. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1143 517 U. S. April 15, 1996 No. 95­7833. Alvarez v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 68 F. 3d 1242. No. 95­7835. Contreras v. Stainer et al. C. A. 9th Cir. Certiorari denied. No. 95­7838. Webb v. Fields, Director, Oklahoma De- partment of Corrections, et al. Sup. Ct. Okla. Certiorari denied. Reported below: 907 P. 2d 1055. No. 95­7839. Bernard v. Office of the Queens County District Attorney. C. A. 2d Cir. Certiorari denied. No. 95­7842. Gilkey v. Hill et al. Ct. App. Kan. Certio- rari denied. No. 95­7850. Nelson v. Cannon et al. C. A. 4th Cir. Cer- tiorari denied. Reported below: 72 F. 3d 127. No. 95­7851. Nooner v. Arkansas. Sup. Ct. Ark. Certio- rari denied. Reported below: 322 Ark. 87, 907 S. W. 2d 677. No. 95­7852. Lynch v. North Carolina. Sup. Ct. N. C. Certiorari denied. Reported below: 340 N. C. 435, 459 S. E. 2d 679. No. 95­7853. Karageorgos v. Beach, Cadigan & Martin et al. Ct. Sp. App. Md. Certiorari denied. Reported below: 103 Md. App. 777. No. 95­7857. James v. State Bar of California. Sup. Ct. Cal. Certiorari denied. No. 95­7868. Burley v. McDonnell Douglas Helicopter Co. C. A. 9th Cir. Certiorari denied. No. 95­7871. Cupit v. Cain, Warden. C. A. 5th Cir. Certio- rari denied. No. 95­7873. Terry v. Huffman, Warden. C. A. 4th Cir. Certiorari denied. Reported below: 74 F. 3d 1234. No. 95­7875. Jones v. Gomez, Warden, et al. C. A. 9th Cir. Certiorari denied. Reported below: 66 F. 3d 199. No. 95­7878. Stephens v. Cain, Warden. C. A. 5th Cir. Certiorari denied. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1144 OCTOBER TERM, 1995 April 15, 1996 517 U. S. No. 95­7880. Braun v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. Reported below: 909 P. 2d 783. No. 95­7882. White v. New York State Workers' Compen- sation Board. App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certio- rari denied. No. 95­7885. Estes v. Namba et al. C. A. 10th Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1249. No. 95­7887. Free v. United States Court of Appeals for the Ninth Circuit. C. A. 9th Cir. Certiorari denied. No. 95­7893. Soler-Somahano v. Immigration and Natu- ralization Service. C. A. 11th Cir. Certiorari denied. Re- ported below: 67 F. 3d 313. No. 95­7896. Belyeu v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 67 F. 3d 535. No. 95­7899. Powell v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. Reported below: 906 P. 2d 765. No. 95­7905. Davenport v. Meloy, Superintendent, Rock- ville Training Center. C. A. 7th Cir. Certiorari denied. No. 95­7910. Digby v. Followill, Judge, Superior Court of Georgia, Chattahoochee County, et al. C. A. 11th Cir. Certiorari denied. No. 95­7915. Scott v. California. Sup. Ct. Cal. Certio- rari denied. No. 95­7917. Bryson v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. Reported below: 903 P. 2d 333. No. 95­7918. Cavanaugh v. Johnson, Director, Texas De- partment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. No. 95­7920. Anderson v. Newberry, Warden. C. A. 6th Cir. Certiorari denied. No. 95­7928. Kiliona v. Hawaii et al. C. A. 9th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 120. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1145 517 U. S. April 15, 1996 No. 95­7941. Bennett v. United States; and No. 95­8271. Houser v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 87. No. 95­7963. Rauser v. Beard, Deputy Commissioner, Pennsylvania Department of Corrections, et al. C. A. 3d Cir. Certiorari denied. No. 95­7980. Abdelmeged v. B­G Maintenance Manage- ment of Colorado, Inc. C. A. 10th Cir. Certiorari denied. Reported below: 61 F. 3d 915. No. 95­7984. Sledge v. Cummings et al. C. A. 10th Cir. Certiorari denied. Reported below: 69 F. 3d 548. No. 95­7993. Hooks v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. Reported below: 902 P. 2d 1120. No. 95­8044. Ramer v. Thomas, Warden. C. A. 10th Cir. Certiorari denied. Reported below: 61 F. 3d 916. No. 95­8058. McQueen v. Hayes et al. C. A. 5th Cir. Cer- tiorari denied. No. 95­8064. Aguilar v. Newton, Warden, et al. C. A. 10th Cir. Certiorari denied. Reported below: 69 F. 3d 547. No. 95­8065. Aguilar v. New Mexico. Dist. Ct. N. M., Bernalillo County. Certiorari denied. No. 95­8071. Hoxsie v. Kerby, Warden, et al. C. A. 10th Cir. Certiorari denied. Reported below: 70 F. 3d 1282. No. 95­8083. Sewell et al. v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 273 Ill. App. 3d 519, 652 N. E. 2d 1146. No. 95­8086. Alexander v. Mississippi et al. Sup. Ct. Miss. Certiorari denied. Reported below: 667 So. 2d 1. No. 95­8087. Harvey v. Bowersox, Superintendent, Po- tosi Correctional Center, et al. C. A. 8th Cir. Certiorari denied. No. 95­8088. Harvey v. "United States Marshal Edmo" et al. C. A. 8th Cir. Certiorari denied. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1146 OCTOBER TERM, 1995 April 15, 1996 517 U. S. No. 95­8089. Harvey v. Schriro, Director, Missouri De- partment of Corrections, et al. C. A. 8th Cir. Certiorari denied. No. 95­8093. Nelson v. Hopkins. C. A. 4th Cir. Certiorari denied. Reported below: 76 F. 3d 374. No. 95­8107. Square v. Morton, Administrator, New Jer- sey State Prison, et al. C. A. 3d Cir. Certiorari denied. No. 95­8110. Steeves v. Allen, Commissioner, Maine De- partment of Corrections, et al. C. A. 1st Cir. Certiorari denied. Reported below: 72 F. 3d 121. No. 95­8136. Tharpe v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 71 F. 3d 881. No. 95­8142. Piloto v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 298. No. 95­8154. Tinsley v. Methodist Hospital of Indiana. C. A. 7th Cir. Certiorari denied. Reported below: 70 F. 3d 1275. No. 95­8157. Christy v. Cooper, Assistant Attorney Gen- eral of Florida, et al. C. A. 11th Cir. Certiorari denied. Reported below: 66 F. 3d 341. No. 95­8161. Miller v. Tennessee. Ct. Crim. App. Tenn. Certiorari denied. No. 95­8168. Delbridge et ux. v. New Jersey Division of Youth and Family Services et al. C. A. 3d Cir. Certiorari denied. No. 95­8181. Biggs v. United States. Ct. App. D. C. Cer- tiorari denied. No. 95­8182. Wonderly v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 70 F. 3d 1020. No. 95­8183. Pettee v. Minnesota. Sup. Ct. Minn. Certio- rari denied. Reported below: 538 N. W. 2d 126. No. 95­8188. Walden v. Arizona. Sup. Ct. Ariz. Certiorari denied. Reported below: 183 Ariz. 595, 905 P. 2d 974. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1147 517 U. S. April 15, 1996 No. 95­8193. Standing Bear v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 68 F. 3d 271. No. 95­8195. Clark v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 386. No. 95­8200. Garner v. Ohio. Sup. Ct. Ohio. Certiorari de- nied. Reported below: 74 Ohio St. 3d 49, 656 N. E. 2d 623. No. 95­8201. Hurel Guerrero v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 99 F. 3d 400. No. 95­8203. Farmer v. Hawk et al. C. A. 11th Cir. Cer- tiorari denied. No. 95­8206. Campbell v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 70 F. 3d 1323. No. 95­8207. Coffin v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 76 F. 3d 494. No. 95­8208. Barbour v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 580. No. 95­8210. Sanders et al. v. United States et al. C. A. 10th Cir. Certiorari denied. Reported below: 68 F. 3d 483. No. 95­8212. Ashley v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 135. No. 95­8220. Helmstetter v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 61 F. 3d 1189. No. 95­8222. Goodman v. Virginia. Sup. Ct. Va. Certio- rari denied. No. 95­8225. Carrazana v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 70 F. 3d 1339. No. 95­8229. Miller v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 70 F. 3d 1353. No. 95­8231. MacArmour v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 136. No. 95­8234. Jackson v. United States. Ct. App. D. C. Certiorari denied. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1148 OCTOBER TERM, 1995 April 15, 1996 517 U. S. No. 95­8235. Martinez v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 999. No. 95­8238. Broach v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 74 F. 3d 1238. No. 95­8241. Broumas v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 69 F. 3d 1178. No. 95­8244. Casas v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 72 F. 3d 124. No. 95­8245. Cannon v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 113. No. 95­8246. Vallejo v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 992. No. 95­8253. Smith et al. v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 77 F. 3d 472. No. 95­8262. Williams v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 78 F. 3d 580. No. 95­8264. Liggins v. Ohio Department of Develop- ment et al. C. A. 6th Cir. Certiorari denied. Reported below: 68 F. 3d 474. No. 95­8265. Morgan v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1258. No. 95­8266. McClelland v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 717. No. 95­8267. McWilliams v. Colorado. Ct. App. Colo. Certiorari denied. No. 95­8269. Morrison v. Reno, Attorney General of the United States, et al. C. A. 8th Cir. Certiorari denied. No. 95­8270. Guzman v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 68 F. 3d 49. No. 95­8272. Suggs v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 77 F. 3d 473. No. 95­8280. Sanders v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 1268. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1149 517 U. S. April 15, 1996 No. 95­8286. Phillips v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 76 F. 3d 376. No. 95­8287. Sherry v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 73 F. 3d 365. No. 95­8288. Romero v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 54 F. 3d 56. No. 95­8291. Wright v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 66 F. 3d 1146. No. 95­8292. Taylor v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1257. No. 95­8295. Darden v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 70 F. 3d 1507. No. 95­8296. Dilbert v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 71 F. 3d 882. No. 95­8300. Doyle v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 78 F. 3d 579. No. 95­8301. Hawkins v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 74 F. 3d 1228. No. 95­8304. Hunter v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1228. No. 95­8312. Myles v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 77 F. 3d 477. No. 95­8318. Strydom v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 73 F. 3d 371. No. 95­8325. Claypool v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 464. No. 95­8330. McCauley v. Winegarden, Judge, Superior Court of Georgia, Gwinnett County, et al. C. A. 11th Cir. Certiorari denied. Reported below: 60 F. 3d 766. No. 95­8333. Robinson v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 73 F. 3d 371. No. 95­8339. Johnson v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 67 F. 3d 297. 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1150 OCTOBER TERM, 1995 April 15, 1996 517 U. S. No. 95­8343. Conti v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 73 F. 3d 361. No. 95­961. McDaniel, Warden, et al. v. McKenna. C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 65 F. 3d 1483. No. 95­1265. Florida v. Jones. Dist. Ct. App. Fla., 4th Dist. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 656 So. 2d 489. No. 95­1305. Johnson, Director, Texas Department of Criminal Justice, Institutional Division v. Reed. C. A. 5th Cir. Motion of respondent for leave to proceed in forma pau- peris granted. Certiorari denied. Reported below: 70 F. 3d 844. No. 95­1098. Casella v. Equifax Credit Information Services et al. C. A. 2d Cir. Motion of National Association of Consumer Advocates et al. for leave to file a brief as amici curiae granted. Certiorari denied. Reported below: 56 F. 3d 469. No. 95­1223. A. A. & M. Carting Service, Inc., et al. v. Town of Babylon et al. C. A. 2d Cir. Motion of New York State Conference of Mayors and Municipal Officers for leave to file a brief as amicus curiae granted. Certiorari denied. Reported below: 66 F. 3d 1272. No. 95­1224. Broida v. Horowitz et al. C. A. 11th Cir. Motion of petitioner to strike the brief in opposition denied. Cer- tiorari denied. Reported below: 53 F. 3d 1285. No. 95­7864. Saunders v. American Telephone & Tele- graph Co. et al. C. A. 3d Cir. Certiorari denied. Justice O'Connor took no part in the consideration or decision of this petition. Reported below: 66 F. 3d 312. Rehearing Denied No. 95­782. SSC Corp. v. Town of Smithtown et al., 516 U. S. 1112; No. 95­826. Jenkins v. New Mexico Securities Division, 516 U. S. 1074; No. 95­843. Bush v. Jones et al., 516 U. S. 1113; 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1151 517 U. S. April 15, 1996 No. 95­914. Broida v. Smith, Individually and as Per- sonal Representative of the Estate of Horowitz, De- ceased, et al., 516 U. S. 1141; No. 95­1005. Morata v. United States Postal Service, 516 U. S. 1117; No. 95­1066. Simone et ux. v. Worcester County Institu- tion for Savings, 516 U. S. 1159; No. 95­1091. Anderson v. United States, 516 U. S. 1119; No. 95­1120. Bolt v. Singleton et al., 516 U. S. 1147; No. 95­1149. Brake v. District Court of Appeal of Flor- ida, Third District, 516 U. S. 1147; No. 95­6851. Stano v. Singletary, Secretary, Florida De- partment of Corrections, 516 U. S. 1122; No. 95­7024. McCormick v. Kaylo, Warden, 516 U. S. 1124; No. 95­7033. Fromal v. Jackson, 516 U. S. 1124; No. 95­7037. Verdugo v. California State University at Los Angeles et al., 516 U. S. 1124; No. 95­7047. Young v. City of Culver City, California, et al., 516 U. S. 1124; No. 95­7055. Mendoza-Figueroa v. United States, 516 U. S. 1125; No. 95­7065. Crowe v. Georgia, 516 U. S. 1148; No. 95­7096. Wynn v. AC Rochester, Division of General Motors Corp., 516 U. S. 1125; No. 95­7101. Marian v. Calles et al., 516 U. S. 1126; No. 95­7102. Law v. Law, 516 U. S. 1126; No. 95­7121. Arvin-Thornton v. Philip Morris Products, Inc., 516 U. S. 1126; No. 95­7144. Melkonian et al. v. Truck Insurance Ex- change et al., 516 U. S. 1127; No. 95­7187. Knight v. Court of Civil Appeals of Ala- bama, 516 U. S. 1129; No. 95­7192. Sweeney v. United States, 516 U. S. 1129; No. 95­7210. Ornelas v. Myers, Warden, et al., 516 U. S. 1129; No. 95­7271. Gallego-Sanchez v. Immigration and Natu- ralization Service, 516 U. S. 1132; No. 95­7287. Felker v. Thomas, Warden, 516 U. S. 1133; No. 95­7298. Tokhtameshev v. American National Can Co., 516 U. S. 1149; No. 95­7365. In re McQueen, 516 U. S. 1157; 517ORD$$2s 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1152 OCTOBER TERM, 1995 April 15, 17, 22, 1996 517 U. S. No. 95­7380. Pringle v. United States, 516 U. S. 1135; No. 95­7388. In re Martinez, 516 U. S. 1145; No. 95­7402. Nance v. United States, 516 U. S. 1136; No. 95­7470. Eickleberry v. United States, 516 U. S. 1138; No. 95­7489. Tyler v. Bowersox, Superintendent, Potosi Correctional Center, 516 U. S. 1149; No. 95­7567. Engelking v. United States, 516 U. S. 1150; No. 95­7611. Ward v. Turner, 516 U. S. 1151; No. 95­7624. Curiale v. Sedwick, Judge, United States District Court for the District of Alaska, 516 U. S. 1163; No. 95­7631. Dread v. Maryland State Police, 516 U. S. 1163; No. 95­7788. In re Robinson, 516 U. S. 1157; and No. 95­7813. Flemmings v. Morton et al., 516 U. S. 1166. Petitions for rehearing denied. No. 95­6504. Uzowuru v. Williams Brothers Construc- tion Co., Inc., et al., 516 U. S. 1053. Motion for leave to file petition for rehearing denied. April 17, 1996 Dismissal Under Rule 46 No. 95­1176. Palmer Communications, Inc., et al. v. Total TV. C. A. 9th Cir. Certiorari dismissed under this Court's Rule 46.1. Reported below: 69 F. 3d 298. April 22, 1996 Certiorari Granted-Vacated and Remanded No. 95­642. Friend v. United States. C. A. 8th Cir. Peti- tion for rehearing granted, and the order entered January 22, 1996 [516 U. S. 1093], denying the petition for writ of certiorari is vacated. Certiorari granted, judgment vacated, and case re- manded for further consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 50 F. 3d 548. Miscellaneous Orders No. A­796. Elias v. United States. Application for release pending appeal, addressed to Justice Stevens and referred to the Court, denied. 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1153 517 U. S. April 22, 1996 No. A­835. Ayers et al. v. Fordice, Governor of Missis- sippi, et al. Application for stay of order of the United States District Court for the Northern District of Mississippi, presented to Justice Scalia, and by him referred to the Court, denied. No. A­843 (95­1649). Kansas v. Hendricks. Sup. Ct. Kan. Application for stay, presented to Justice Breyer, and by him referred to the Court, granted, and it is ordered that the mandate of the Supreme Court of Kansas, case No. 73,039, is stayed pend- ing this Court's action of the petition for writ of certiorari. Should the petition for writ of certiorari be granted, this order is to continue in effect pending the issuance of the mandate of this Court. If the petition for writ of certiorari is denied, this order is to terminate automatically. No. D­1671. In re Disbarment of Wall. Kevin F. Wall, of Oaklyn, N. J., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1672. In re Disbarment of Jennings. Kathleen Perry Jennings, of Greenville, S. C., is suspended from the prac- tice of law in this Court, and a rule will issue, returnable within 40 days, requiring her to show cause why she should not be disbarred from the practice of law in this Court. No. D­1673. In re Disbarment of Pollack. Sanford E. Pollack, of Baldwin, N. Y., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1675. In re Disbarment of Pincham. Robert Eu- gene Pincham, Jr., of Chicago, Ill., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. 95­137. Williams et al. v. National Basketball Assn. et al. C. A. 2d Cir. Motion of respondents to defer con- sideration of petition for writ of certiorari denied. No. 95­345. United States v. Ursery. C. A. 6th Cir. [Cer- tiorari granted, 516 U. S. 1070]; and 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1154 OCTOBER TERM, 1995 April 22, 1996 517 U. S. No. 95­346. United States v. $405,089.23 in United States Currency et al. C. A. 9th Cir. [Certiorari granted, 516 U. S. 1070.] Motion of National Association of Criminal Defense Law- yers for leave to file a brief as amicus curiae granted. No. 95­860. Smiley v. Citibank (South Dakota), N. A. Sup. Ct. Cal. [Certiorari granted, 516 U. S. 1087.] Motion of the Attorney General of Indiana to withdraw as amicus curiae granted. No. 95­891. Ohio v. Robinette. Sup. Ct. Ohio. [Certiorari granted, 516 U. S. 1157.] Motion of Americans for Effective Law Enforcement for leave to file a brief as amicus curiae granted. No. 95­939. Immigration and Naturalization Service v. Elramly. C. A. 9th Cir. [Certiorari granted, 516 U. S. 1170.] Motion of the Solicitor General to dispense with printing the joint appendix granted. No. 95­1455. Reno, Attorney General v. Bossier Parish School Board et al. Appeal from D. C. D. C. Motion of ap- pellee to supplement the record denied. No. 95­8345. In re Haney. Petition for writ of mandamus denied. Certiorari Granted No. 95­1100. Board of the County Commissioners of Bryan County, Oklahoma v. Brown et al. C. A. 5th Cir. Certiorari granted. Reported below: 67 F. 3d 1174. No. 95­1228. United States v. Wells et al. C. A. 8th Cir. Certiorari granted. Reported below: 63 F. 3d 745. No. 95­1376. Robinson v. Shell Oil Co. C. A. 4th Cir. Certiorari granted. Reported below: 70 F. 3d 325. Certiorari Denied No. 95­803. Black v. United States et al. C. A. 8th Cir. Certiorari denied. Reported below: 62 F. 3d 1115. No. 95­958. Nelson v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 48 F. 3d 1238. 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1155 517 U. S. April 22, 1996 No. 95­959. 640 Broadway Renaissance Co. v. Eisner et al. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari de- nied. Reported below: 212 App. Div. 2d 376, 622 N. Y. S. 2d 262. No. 95­1134. Rodriguez de Castro v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 63 F. 3d 148. No. 95­1143. Oregon Public Utility Commission v. GTE Northwest Inc. Sup. Ct. Ore. Certiorari denied. Reported below: 321 Ore. 458, 900 P. 2d 495. No. 95­1146. Clark et al. v. Clarkstown Central School District et al. C. A. 2d Cir. Certiorari denied. Reported below: 71 F. 3d 405. No. 95­1150. J. A. Croson Co. v. Central Ohio Joint Voca- tional School District et al. Ct. App. Ohio, Madison County. Certiorari denied. Reported below: 104 Ohio App. 3d 146, 661 N. E. 2d 250. No. 95­1156. London v. United States. C. A. 1st Cir. Cer- tiorari denied. Reported below: 66 F. 3d 1227. No. 95­1173. Hamlet v. United States. C. A. Fed. Cir. Certiorari denied. Reported below: 63 F. 3d 1097. No. 95­1182. St. Peter Villa, Inc., et al. v. Linton, by Her Next Friend, Arnold, et al. C. A. 6th Cir. Certiorari denied. Reported below: 65 F. 3d 508. No. 95­1191. Trahan v. Trahan. Ct. App. Tex., 3d Dist. Certiorari denied. Reported below: 894 S. W. 2d 113. No. 95­1195. Whitmore et al. v. Federal Election Com- mission et al. C. A. 9th Cir. Certiorari denied. Reported below: 68 F. 3d 1212. No. 95­1197. National Association of Broadcasters et al. v. Miller et al.; No. 95­1200. Federal Communications Commission et al. v. Miller et al.; and No. 95­1361. Miller et al. v. Federal Communications Commission et al. C. A. 11th Cir. Certiorari denied. Re- ported below: 66 F. 3d 1140. 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1156 OCTOBER TERM, 1995 April 22, 1996 517 U. S. No. 95­1255. Shelstad et al. v. West One Bank (Idaho), fka Idaho First National Bank, et al. C. A. 9th Cir. Cer- tiorari denied. Reported below: 59 F. 3d 176. No. 95­1280. Bi-State Development Agency of the Missouri-Illinois Metropolitan District v. Abbott Ambu- lance, Inc. C. A. 8th Cir. Certiorari denied. Reported below: 70 F. 3d 118. No. 95­1294. Sawatzky v. Oklahoma City. Ct. Crim. App. Okla. Certiorari denied. Reported below: 906 P. 2d 785. No. 95­1298. Abeles v. Infotechnology, Inc., et al. C. A. 2d Cir. Certiorari denied. Reported below: 89 F. 3d 825. No. 95­1299. "Bob" v. "Mary" et al. Sup. Ct. Mont. Certio- rari denied. Reported below: 273 Mont. 351, 903 P. 2d 207. No. 95­1313. Cafe 207, Inc. v. St. Johns County. C. A. 11th Cir. Certiorari denied. Reported below: 66 F. 3d 272. No. 95­1316. Solventes y Quimica de Nicaragua, S. A. Solquimisa, et al. v. Weaver, Liquidating Trustee. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 878. No. 95­1320. Brown et al. v. Paskvan. C. A. 6th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1272. No. 95­1322. Crehan et ux. v. DeBoer et al. C. A. 8th Cir. Certiorari denied. Reported below: 64 F. 3d 1171. No. 95­1327. In re Cargill, Inc. C. A. 1st Cir. Certiorari denied. Reported below: 66 F. 3d 1256. No. 95­1334. Griggs et vir v. South Carolina Electric & Gas Co. Sup. Ct. S. C. Certiorari denied. Reported below: 320 S. C. 127, 463 S. E. 2d 608. No. 95­1342. Fred Meyer, Inc. v. Casey et al. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 1412. No. 95­1346. Vasquez et vir v. Hernandez et al. C. A. 7th Cir. Certiorari denied. Reported below: 60 F. 3d 325. No. 95­1350. Cherokee Insurance Co., By and Through Weed, Special Deputy Commissioner of Commerce and In- surance for the Rehabilitation of Cherokee Insurance 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1157 517 U. S. April 22, 1996 Co. v. E. W. Blanch Co. et al. C. A. 6th Cir. Certiorari de- nied. Reported below: 66 F. 3d 117. No. 95­1399. Eades et ux. v. Clark Distributing Co., Inc., et al. C. A. 6th Cir. Certiorari denied. Reported below: 70 F. 3d 441. No. 95­1421. Jensen v. County of Santa Clara, Califor- nia, et al. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 544. No. 95­1442. Huang v. French et al. C. A. 4th Cir. Cer- tiorari denied. Reported below: 73 F. 3d 357. No. 95­1466. Plott v. General Motors Corp., Packard Electric Division. C. A. 6th Cir. Certiorari denied. Re- ported below: 71 F. 3d 1190. No. 95­1476. Jackson v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 1370. No. 95­1499. Daley et al. v. Rambo. C. A. 7th Cir. Certio- rari denied. Reported below: 68 F. 3d 203. No. 95­1553. Flinn v. Florida Bar et al. C. A. 11th Cir. Certiorari denied. Reported below: 62 F. 3d 400. No. 95­1562. Williams v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 59 F. 3d 1180. No. 95­1564. Kimbrough v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 69 F. 3d 723. No. 95­6984. Triestman v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 60 F. 3d 812. No. 95­7178. Buyea v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 66 F. 3d 336. No. 95­7190. Jordan v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 66 F. 3d 317. No. 95­7198. Graham v. Pennsylvania. Sup. Ct. Pa. Cer- tiorari denied. Reported below: 541 Pa. 173, 661 A. 2d 1367. No. 95­7279. Beets v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 65 F. 3d 1258. 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1158 OCTOBER TERM, 1995 April 22, 1996 517 U. S. No. 95­7433. Cooper v. United States. C. A. 8th Cir. Cer- tiorari denied. Reported below: 63 F. 3d 761. No. 95­7525. Teague v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 67 F. 3d 1208. No. 95­7540. Jervis, aka Harrison v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 62 F. 3d 1426. No. 95­7546. Ruth v. United States. C. A. 7th Cir. Cer- tiorari denied. Reported below: 65 F. 3d 599. No. 95­7560. Terry v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 72 F. 3d 125. No. 95­7583. Edwards v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 70 F. 3d 1274. No. 95­7598. Nicholas v. Reno, Attorney General of the United States, et al. C. A. D. C. Cir. Certiorari denied. No. 95­7616. Johnson v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 64 F. 3d 1105. No. 95­7812. Duckett v. Godinez, Warden, et al. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 734. No. 95­7933. J. A. L. v. Hampton et al. Ct. App. La., 2d Cir. Certiorari denied. Reported below: 658 So. 2d 331. No. 95­7937. Shores v. Foster et al. C. A. 4th Cir. Cer- tiorari denied. Reported below: 69 F. 3d 533. No. 95­7938. Robinson v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 73 F. 3d 1107. No. 95­7940. Robinson v. Meloy, Superintendent, Rock- ville Training Center. C. A. 7th Cir. Certiorari denied. No. 95­7944. Sevigny et vir v. Maine et al. C. A. 1st Cir. Certiorari denied. Reported below: 69 F. 3d 531. No. 95­7947. Olsen v. Lane et al. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Reported below: 666 So. 2d 906. No. 95­7953. Barno v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1159 517 U. S. April 22, 1996 No. 95­7956. Yates v. Godwin. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 1266. No. 95­7958. Williams v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­7964. Siqueros v. California. Sup. Ct. Cal. Cer- tiorari denied. Reported below: 11 Cal. 4th 568, 904 P. 2d 1197. No. 95­7969. Johnson v. Florida. Sup. Ct. Fla. Certiorari denied. Reported below: 660 So. 2d 637. No. 95­7970. Johnson v. Florida. Sup. Ct. Fla. Certiorari denied. Reported below: 660 So. 2d 648. No. 95­7976. Jae v. Good. C. A. 3d Cir. Certiorari denied. Reported below: 65 F. 3d 162. No. 95­7977. McReynolds v. Pataki, Governor of New York, et al. Ct. App. N. Y. Certiorari denied. Reported below: 87 N. Y. 2d 860, 662 N. E. 2d 793. No. 95­7983. Smith v. Herring, Warden, et al. C. A. 11th Cir. Certiorari denied. No. 95­7990. Wright v. Brown, Superintendent, Clallam Bay Corrections Center, et al. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 311. No. 95­7991. Zankich v. Allen, Clerk, Superior Court of Arizona, Maricopa County, et al. C. A. 9th Cir. Certiorari denied. No. 95­7998. Cortez Escamilla v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­8001. Rivens v. Dunn et al. C. A. 4th Cir. Certio- rari denied. Reported below: 76 F. 3d 375. No. 95­8008. Parks v. Allstate Insurance Co. Ct. App. Ga. Certiorari denied. No. 95­8009. Mangrum v. Simmons et al. C. A. 11th Cir. Certiorari denied. No. 95­8013. Campisi v. Maffeo, Trustee of the John Capobianco Trust, et al. C. A. 1st Cir. Certiorari denied. Reported below: 66 F. 3d 306. 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1160 OCTOBER TERM, 1995 April 22, 1996 517 U. S. No. 95­8014. Koffiel v. Singletary, Secretary, Florida Department of Corrections, et al. C. A. 11th Cir. Certio- rari denied. Reported below: 62 F. 3d 400. No. 95­8015. Kennedy v. Court of Appeals of Michigan. Sup. Ct. Mich. Certiorari denied. No. 95­8024. Bergmann v. McCaughtry, Warden. C. A. 7th Cir. Certiorari denied. Reported below: 65 F. 3d 1372. No. 95­8025. Taylor v. Cobb et al. C. A. 9th Cir. Certio- rari denied. No. 95­8053. Notheis v. Petkovich. Ct. App. Mo., Eastern Dist. Certiorari denied. Reported below: 908 S. W. 2d 803. No. 95­8061. Coleman v. New York Commission of Cor- rection et al.; Coleman v. Murray et al.; and Coleman v. New York Commission of Correction et al. C. A. 2d Cir. Certiorari denied. No. 95­8062. Barbee v. State Farm Automobile Insur- ance Co. et al. C. A. 3d Cir. Certiorari denied. Reported below: 66 F. 3d 310. No. 95­8072. Hughey v. Columbia County Sheriff's De- partment et al. C. A. 8th Cir. Certiorari denied. Reported below: 74 F. 3d 1243. No. 95­8079. Walp v. Goodwin et al. C. A. 5th Cir. Cer- tiorari denied. Reported below: 66 F. 3d 323. No. 95­8096. Rios v. New Hampshire. Sup. Ct. N. H. Cer- tiorari denied. No. 95­8102. Csorba v. ITT Electro-Optical Products Division. C. A. 4th Cir. Certiorari denied. Reported below: 73 F. 3d 356. No. 95­8141. Woodbury v. Sears, Roebuck & Co. C. A. 11th Cir. Certiorari denied. No. 95­8156. Buividas v. United States. C. A. 5th Cir. Certiorari denied. No. 95­8205. Rise et al. v. Oregon et al. C. A. 9th Cir. Certiorari denied. Reported below: 59 F. 3d 1556. 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1161 517 U. S. April 22, 1996 No. 95­8211. Shafii v. British Airways. C. A. 2d Cir. Certiorari denied. Reported below: 71 F. 3d 404. No. 95­8237. Okolie et al. v. Richardson, Commissioner of Internal Revenue. C. A. 2d Cir. Certiorari denied. No. 95­8242. Crabtree v. Singletary, Secretary, Florida Department of Corrections, et al. C. A. 11th Cir. Certio- rari denied. No. 95­8274. Bynum v. State Farm Insurance Co. Ct. App. Ga. Certiorari denied. Reported below: 219 Ga. App. XXVI. No. 95­8277. Sneeden v. North Carolina et al. C. A. 4th Cir. Certiorari denied. Reported below: 76 F. 3d 375. No. 95­8310. Maybeck v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 76 F. 3d 376. No. 95­8313. Miller v. Oregon State Prison. C. A. 9th Cir. Certiorari denied. Reported below: 73 F. 3d 369. No. 95­8321. Hardy v. Pinkerton Security Services. C. A. 5th Cir. Certiorari denied. Reported below: 59 F. 3d 1241. No. 95­8326. Camilo v. United States. C. A. 1st Cir. Cer- tiorari denied. Reported below: 71 F. 3d 984. No. 95­8328. Joyce v. United States. C. A. 1st Cir. Cer- tiorari denied. Reported below: 70 F. 3d 679. No. 95­8331. Kellotat v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 309. No. 95­8347. Martin v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 62 F. 3d 1009. No. 95­8348. Campbell v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 61 F. 3d 976. No. 95­8350. Tobisch v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 69 F. 3d 540. No. 95­8355. Hodges v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 73 F. 3d 364. 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1162 OCTOBER TERM, 1995 April 22, 1996 517 U. S. No. 95­8357. Hand v. United States. C. A. 10th Cir. Cer- tiorari denied. Reported below: 76 F. 3d 393. No. 95­8366. Robertson v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 74 F. 3d 1247. No. 95­8367. Pedraza v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 73 F. 3d 374. No. 95­8369. Cox v. United States. C. A. 10th Cir. Certio- rari denied. Reported below: 72 F. 3d 138. No. 95­8370. Camp et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 759. No. 95­8371. Bennett v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 113. No. 95­8372. Coleman v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 52 F. 3d 326. No. 95­8378. Alvarez-Figueroa v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 73 F. 3d 370. No. 95­8380. Thomas v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 74 F. 3d 676. No. 95­8381. Yildirim v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 73 F. 3d 363. No. 95­8389. Anderson v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 72 F. 3d 563. No. 95­8395. Hyppolite v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 65 F. 3d 1151. No. 95­8398. Forty-Estremera v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 67 F. 3d 1002. No. 95­8399. Johnson v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 73 F. 3d 1108. No. 95­8400. Danos v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 77 F. 3d 476. No. 95­8401. Fox v. United States. C. A. 4th Cir. Certio- rari denied. Reported below: 73 F. 3d 359. 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1163 517 U. S. April 22, 1996 No. 95­8403. Gonzales v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 78 F. 3d 581. No. 95­8404. Kendricks v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 73 F. 3d 1108. No. 95­8405. Kussair v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 73 F. 3d 371. No. 95­1159. Nansay Hawaii, Inc. v. Public Access Shore- line Hawaii. Sup. Ct. Haw. Motion of Pacific Legal Founda- tion for leave to file a brief as amicus curiae granted. Certiorari denied. Reported below: 79 Haw. 425, 903 P. 2d 1246. No. 95­1315. Metropolitan Edison Co. et al. v. Dodson et al. C. A. 3d Cir. Motion of Nuclear Energy Institute et al. for leave to file a brief as amici curiae granted. Certiorari de- nied. Justice Breyer took no part in the consideration or deci- sion of this motion and this petition. Reported below: 67 F. 3d 1119. Rehearing Granted. (See No. 95­642, supra, at 1152.) Rehearing Denied No. 94­8729. Bennis v. Michigan, 516 U. S. 442; No. 95­880. Tatum et al. v. Columbia Natural Re- sources, Inc., et al., 516 U. S. 1158; No. 95­6905. Esparza v. Elliott, Warden, et al., 516 U. S. 1122; No. 95­7280. Sikora v. Doe et al., 516 U. S. 1148; No. 95­7376. Haman v. King et al., 516 U. S. 1162; No. 95­7419. Nasim v. Warden, Maryland House of Cor- rection, et al., 516 U. S. 1177; No. 95­7429. Bowles v. Minnesota, 516 U. S. 1162; No. 95­7642. Simpson v. Cristino Rivera Mining Co. et al., ante, p. 1109; No. 95­7719. Wright, aka Denvers v. United States, 516 U. S. 1164; and No. 95­7776. In re Kennedy, 516 U. S. 1157. Petitions for rehearing denied. 517ORD$$2t 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1164 OCTOBER TERM, 1995 April 23, 25, 26, 29, 1996 517 U. S. April 23, 1996 Miscellaneous Orders. (For the Court's orders prescribing amendments to the Federal Rules of Appellate Procedure, see post, p. 1257; amendments to the Federal Rules of Bank- ruptcy Procedure, see post, p. 1265; amendments to the Fed- eral Rules of Civil Procedure, see post, p. 1281; and amend- ments to the Federal Rules of Criminal Procedure, see post, p. 1287.) April 25, 1996 Certiorari Denied No. 95­8717 (A­873). Brewer v. Ward, Warden. C. A. 10th Cir. Application for stay of execution of sentence of death, pre- sented to Justice Breyer, and by him referred to the Court, denied. Certiorari denied. Reported below: 83 F. 3d 431. April 26, 1996 Dismissal Under Rule 46 No. 95­1430. Rogers et al. v. Desiderio et al. App. Ct. Ill., 3d Dist. Certiorari dismissed under this Court's Rule 46.1. Reported below: 274 Ill. App. 3d 446, 655 N. E. 2d 930. April 29, 1996 Dismissal Under Rule 46 No. 94­2016. Independent Life & Accident Insurance Co. v. Harrington, as Administratrix of the Estate of Casey, Deceased. Sup. Ct. Ala. Certiorari dismissed under this Court's Rule 46. Reported below: 658 So. 2d 892. Certiorari Granted-Vacated and Remanded No. 94­2081. United States Surgical Corp. v. Ethicon, Inc., et al. C. A. Fed. Cir. Certiorari granted, judgment va- cated, and case remanded for further consideration in light of Markman v. Westview Instruments, Inc., ante, p. 370. Justice Breyer took no part in the consideration or decision of this case. Reported below: 48 F. 3d 1237. No. 95­7711. Rhodes v. United States. C. A. D. C. Cir. Motion of petitioner for leave to proceed in forma pauperis 517ORD$$2u 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1165 517 U. S. April 29, 1996 granted. Certiorari granted, judgment vacated, and case re- manded for further consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 62 F. 3d 1449. Miscellaneous Orders No. D­1613. In re Disbarment of Jones. Disbarment entered. [For earlier order herein, see 516 U. S. 985.] No. D­1645. In re Disbarment of Schouman. Disbarment entered. [For earlier order herein, see 516 U. S. 1107.] No. D­1648. In re Disbarment of Swano. Disbarment entered. [For earlier order herein, see 516 U. S. 1108.] No. D­1650. In re Disbarment of Gerdeman. Disbarment entered. [For earlier order herein, see 516 U. S. 1108.] No. D­1651. In re Disbarment of Piper. Disbarment entered. [For earlier order herein, see 516 U. S. 1108.] No. D­1652. In re Disbarment of Allen. Disbarment entered. [For earlier order herein, see 516 U. S. 1108.] No. D­1654. In re Disbarment of Kelleher. Disbarment entered. [For earlier order herein, see 516 U. S. 1108.] No. D­1674. In re Disbarment of Mims. Larry Mims, of Chicago, Ill., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1676. In re Disbarment of Summers. Robert L. Summers, of Millersport, Ohio, is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. M­57. McElrath v. Phillips; and No. M­58. Abrams v. Urban Homeowners' Corporation of New Orleans. Motions to direct the Clerk to file petitions for writs of certiorari out of time denied. No. 95­1111. Estate of Menna et al. v. St. Agnes Medi- cal Center, 516 U. S. 1172. Motion of respondent for damages denied. 517ORD$$2u 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1166 OCTOBER TERM, 1995 April 29, 1996 517 U. S. No. 95­8273. In re Bertasavage. Petition for writ of prohi- bition denied. Certiorari Granted No. 95­1402. Commissioner of Internal Revenue v. Es- tate of Hubert, Deceased, C & S Sovran Trust Co. (Geor- gia) N. A., Co-Executor. C. A. 11th Cir. Certiorari granted. Reported below: 63 F. 3d 1083. No. 95­1352. Edwards et al. v. Balisok. C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted. Reported below: 70 F. 3d 1277. Certiorari Denied No. 95­711. Gussin v. Nintendo of America, Inc. C. A. Fed. Cir. Certiorari denied. Reported below: 62 F. 3d 1433. No. 95­815. Globe Newspaper Co. v. United States et al. C. A. 1st Cir. Certiorari denied. Reported below: 61 F. 3d 86. No. 95­1099. Russell et ux. v. Federal Deposit Insur- ance Corporation, as Conservator for First American Savings Bank. C. A. 11th Cir. Certiorari denied. Reported below: 62 F. 3d 401. No. 95­1119. City of Blue Springs et al. v. Kincade. C. A. 8th Cir. Certiorari denied. Reported below: 64 F. 3d 389. No. 95­1193. Saraco et al. v. United States et al. C. A. Fed. Cir. Certiorari denied. Reported below: 61 F. 3d 863. No. 95­1204. Skepton v. Reich, Secretary of Labor. C. A. 3d Cir. Certiorari denied. Reported below: 70 F. 3d 1257. No. 95­1206. Corces v. United States. C. A. 11th Cir. Certiorari denied. No. 95­1222. Shak v. Tanaka et al. C. A. 9th Cir. Certio- rari denied. Reported below: 65 F. 3d 175. No. 95­1226. Kelley, Attorney General of Michigan, et al. v. Department of Justice et al. C. A. 10th Cir. Cer- tiorari denied. Reported below: 69 F. 3d 1503. 517ORD$$2u 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1167 517 U. S. April 29, 1996 No. 95­1234. Dixon et al. v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 68 F. 3d 1253. No. 95­1267. Wilburta T. Holden Living Trust v. Joint City-County Board of Tax Assessors. Ct. App. Ga. Certio- rari denied. Reported below: 218 Ga. App. XXVIII. No. 95­1354. Liu v. New York City Police Department et al. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari de- nied. Reported below: 216 App. Div. 2d 67, 627 N. Y. S. 2d 683. No. 95­1357. Jones et ux. v. Garcia et ux. C. A. 5th Cir. Certiorari denied. Reported below: 63 F. 3d 411. No. 95­1362. Tam v. Continental Insurance. C. A. 3d Cir. Certiorari denied. Reported below: 72 F. 3d 124. No. 95­1364. Smith v. Glenolden Borough et al. C. A. 3d Cir. Certiorari denied. Reported below: 70 F. 3d 1257. No. 95­1365. Archexpo Commerce & Industry Centre et al. v. International Ambassador Programs, Inc. C. A. 9th Cir. Certiorari denied. Reported below: 68 F. 3d 337. No. 95­1369. Rodime PLC v. Quantum Corp. C. A. Fed. Cir. Certiorari denied. Reported below: 65 F. 3d 1577. No. 95­1372. Auvil et al. v. CBS "60 Minutes" et al. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 816. No. 95­1375. Gill v. Territory of Guam. C. A. 9th Cir. Certiorari denied. Reported below: 61 F. 3d 688. No. 95­1378. Furrer et ux. v. Brown et al. C. A. 8th Cir. Certiorari denied. Reported below: 62 F. 3d 1092. No. 95­1380. Harris v. City of Virginia Beach et al. C. A. 4th Cir. Certiorari denied. Reported below: 69 F. 3d 532. No. 95­1384. Smith & Nephew Dyonics, Inc. v. Violette. C. A. 1st Cir. Certiorari denied. Reported below: 62 F. 3d 8. No. 95­1387. Atlantic Richfield Co. v. Beck et al. C. A. 9th Cir. Certiorari denied. Reported below: 62 F. 3d 1240. No. 95­1388. St. Paul Mercury Insurance Co. et al. v. B & D Mechanical Contractors, Inc. C. A. 10th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1115. 517ORD$$2u 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1168 OCTOBER TERM, 1995 April 29, 1996 517 U. S. No. 95­1389. Allard, Chapter 7 Trustee of the Estate of Chomakos, et al. v. Flamingo Hilton. C. A. 6th Cir. Cer- tiorari denied. Reported below: 69 F. 3d 769. No. 95­1398. Alsberg, dba Alsberg Brothers Boatworks v. Robertson, Chapter 7 Trustee. C. A. 9th Cir. Certiorari denied. Reported below: 68 F. 3d 312. No. 95­1403. Struck v. Kennebec County, Maine, et al. Sup. Jud. Ct. Me. Certiorari denied. Reported below: 668 A. 2d 411. No. 95­1410. Dart et ux. v. Dart et al. Cir. Ct. Mich., Ingham County. Certiorari denied. No. 95­1411. Walsh v. Ivkovich. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 274 Ill. App. 3d 1113, 691 N. E. 2d 1201. No. 95­1412. Brown et al. v. Plywood Panels, Inc. C. A. 4th Cir. Certiorari denied. Reported below: 67 F. 3d 293. No. 95­1416. Stramel v. Stone. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 272 Ill. App. 3d 1116, 688 N. E. 2d 392. No. 95­1422. Secakuku, Chairman, Hopi Tribal Council of the Hopi Indian Tribe, for and on Behalf of the Hopi Indian Tribe v. Hale, President of the Navajo Nation, for and on Behalf of the Navajo Nation. C. A. 9th Cir. Certio- rari denied. Reported below: 65 F. 3d 1445. No. 95­1424. Vanyo v. Fargo Women's Health Organiza- tion, Inc., et al. C. A. 8th Cir. Certiorari denied. Reported below: 65 F. 3d 173. No. 95­1443. Stork Brabant B. V. et al. v. D'Almeida et al. C. A. 1st Cir. Certiorari denied. Reported below: 71 F. 3d 50. No. 95­1451. Class of Gutierrez et al. v. Santa Ana Unified School District et al. Ct. App. Cal., 4th App. Dist. Certiorari denied. No. 95­1457. Hutton v. Colorado. Ct. App. Colo. Certio- rari denied. No. 95­1490. Metcalfe v. Kelly, fka Metcalfe. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Reported below: 655 So. 2d 1251. 517ORD$$2u 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1169 517 U. S. April 29, 1996 No. 95­1506. Ifill v. District of Columbia et al. Ct. App. D. C. Certiorari denied. Reported below: 665 A. 2d 185. No. 95­1548. Gaston v. Viclo Realty Co. et al. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Reported below: 215 App. Div. 2d 174, 626 N. Y. S. 2d 131. No. 95­1549. Zhadanov v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 74 F. 3d 1229. No. 95­1563. Genish v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 66 F. 3d 341. No. 95­1582. Jensen v. United States. C. A. 8th Cir. Cer- tiorari denied. Reported below: 69 F. 3d 906. No. 95­1588. Jespersen v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 65 F. 3d 993. No. 95­7203. Green v. Housing Authority of New Or- leans. Ct. App. La., 4th Cir. Certiorari denied. Reported below: 657 So. 2d 552. No. 95­7506. Dobyne v. Alabama. Sup. Ct. Ala. Certiorari denied. Reported below: 672 So. 2d 1354. No. 95­7645. Coley v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 126. No. 95­7675. Stine v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 121. No. 95­7690. Collado v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 125. No. 95­7744. Baker v. Maryland. Cir. Ct. Harford County, Md. Certiorari denied. No. 95­7974. McFarland v. Texas. Ct. Crim. App. Tex. Certiorari denied. No. 95­8017. Burress v. Unitarian-Universalist Society of Sacramento, Inc., et al. C. A. 9th Cir. Certiorari denied. No. 95­8031. Franklyn v. Vista del Mar et al. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 119. 517ORD$$2u 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1170 OCTOBER TERM, 1995 April 29, 1996 517 U. S. No. 95­8038. Hayes v. Spears, Warden, et al. Ct. Crim. App. Okla. Certiorari denied. No. 95­8042. Smith v. McBride, Superintendent, West- ville Correctional Center. C. A. 7th Cir. Certiorari de- nied. Reported below: 64 F. 3d 665. No. 95­8043. Russell v. Norris, Director, Arkansas De- partment of Correction. C. A. 8th Cir. Certiorari denied. Reported below: 77 F. 3d 486. No. 95­8045. Ramer v. Johnson et al. Sup. Ct. Okla. Cer- tiorari denied. No. 95­8057. Marks v. Herring, Commissioner, Alabama Department of Corrections, et al. C. A. 11th Cir. Certio- rari denied. Reported below: 59 F. 3d 1247. No. 95­8059. Minetti v. Local 9, International Long- shoremen and Warehousemen Union, et al. C. A. 9th Cir. Certiorari denied. No. 95­8063. Bogan v. Sessions, Attorney General of Alabama, et al. C. A. 11th Cir. Certiorari denied. Reported below: 66 F. 3d 340. No. 95­8067. Gucikova v. Chrost. App. Ct. Mass. Certio- rari denied. Reported below: 39 Mass. App. 1110, 655 N. E. 2d 1296. No. 95­8068. Hill v. San Mateo County Youth and Fam- ily Services Division. Ct. App. Cal., 1st App. Dist. Certio- rari denied. No. 95­8069. Hill v. California. Ct. App. Cal., 3d App. Dist. Certiorari denied. Reported below: 37 Cal. App. 4th 220, 44 Cal. Rptr. 2d 11. No. 95­8073. Dale v. Champion, Warden. C. A. 10th Cir. Certiorari denied. Reported below: 72 F. 3d 137. No. 95­8074. Green v. Mellon Bank, N. A. C. A. 3d Cir. Certiorari denied. No. 95­8075. Hamilton v. Fragoso et al. C. A. 9th Cir. Certiorari denied. Reported below: 66 F. 3d 335. 517ORD$$2u 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1171 517 U. S. April 29, 1996 No. 95­8076. Jaffer v. Board of Managers of the Revere Condominium. Ct. App. N. Y. Certiorari denied. Reported below: 87 N. Y. 2d 952, 664 N. E. 2d 892. No. 95­8077. Johnson v. Johnson, Director, Texas De- partment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 477. No. 95­8078. Nobles, aka Sharif v. Welborn, Warden, et al. C. A. 7th Cir. Certiorari denied. Reported below: 67 F. 3d 301. No. 95­8080. White v. Zimmers, Clerk, Court of Common Pleas of Ohio, Montgomery County. Ct. App. Ohio, Mont- gomery County. Certiorari denied. No. 95­8081. Ramos v. Bunnell, Warden, et al. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 544. No. 95­8084. Nash v. Lacombe et al. C. A. 5th Cir. Cer- tiorari denied. Reported below: 66 F. 3d 322. No. 95­8085. Scott v. United States District Court for the District of Nevada et al. C. A. 9th Cir. Certiorari denied. No. 95­8090. Hurst v. Supreme Court of California et al. C. A. 9th Cir. Certiorari denied. No. 95­8091. Graham v. Turpin, Warden, et al. C. A. 11th Cir. Certiorari denied. No. 95­8094. Kornahrens v. Moore, Director, South Car- olina Department of Corrections, et al. C. A. 4th Cir. Certiorari denied. Reported below: 66 F. 3d 1350. No. 95­8101. Olsen v. Sabal Marketing, Inc., et al. Sup. Ct. Fla. Certiorari denied. Reported below: 661 So. 2d 824. No. 95­8103. Morrow v. Georgia. Sup. Ct. Ga. Certiorari denied. Reported below: 266 Ga. 3, 463 S. E. 2d 472. No. 95­8111. Steeves v. Benson et al. C. A. 8th Cir. Cer- tiorari denied. No. 95­8112. Larrabee v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. Reported below: 222 App. Div. 2d 1129, 636 N. Y. S. 2d 963. 517ORD$$2u 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) 1172 OCTOBER TERM, 1995 April 29, 1996 517 U. S. No. 95­8113. Shabazz v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. No. 95­8114. Anderson v. Davis et al. C. A. 11th Cir. Certiorari denied. No. 95­8116. Al-Wahhab v. Virginia et al. (two judg- ments). C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 1260 (first judgment); 73 F. 3d 356 (second judgment). No. 95­8124. Balele v. Klauser, Secretary, Department of Administration, et al. C. A. 7th Cir. Certiorari denied. Reported below: 74 F. 3d 1242. No. 95­8125. Abraham v. Adcock et al. C. A. 8th Cir. Certiorari denied. No. 95­8130. Swartz v. Iowa. Ct. App. Iowa. Certiorari denied. Reported below: 541 N. W. 2d 533. No. 95­8132. Sims v. Illinois. Sup. Ct. Ill. Certiorari de- nied. Reported below: 167 Ill. 2d 483, 658 N. E. 2d 413. No. 95­8135. Sedano v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 273 Ill. App. 3d 1110, 690 N. E. 2d 1089. No. 95­8148. Idemudia v. Consolidated Rail Corporation. C. A. 6th Cir. Certiorari denied. No. 95­8150. McGuffey v. Gwinnett County School Sys- tem et al. C. A. 11th Cir. Certiorari denied. No. 95­8177. D'Ambrosio v. Ohio. Sup. Ct. Ohio. Certiorari denied. Reported below: 73 Ohio St. 3d 141, 652 N. E. 2d 710. No. 95­8190. Johnson v. New York et al. C. A. 2d Cir. Certiorari denied. Reported below: 100 F. 3d 941. No. 95­8191. Mullholand v. Harris Corp. C. A. 6th Cir. Certiorari denied. Reported below: 72 F. 3d 130. No. 95­8218. Wyldes v. Hundley, Warden. C. A. 8th Cir. Certiorari denied. Reported below: 69 F. 3d 247. No. 95­8250. Pitsch v. Michigan Attorney Grievance Commission. Sup. Ct. Mich. Certiorari denied. 517ORD$$2u 01-05-99 18:33:16 PGT*ORDBV (Bound Volume) ORDERS 1173 517 U. S. April 29, 1996 No. 95­8257. Steinberg v. Steinberg. Sup. Ct. Va. Cer- tiorari denied. No. 95­8258. Seehan v. Iowa. C. A. 8th Cir. Certiorari denied. Reported below: 72 F. 3d 607. No. 95­8284. Caton v. Clarke, Director, Nebraska De- partment of Correctional Services. C. A. 8th Cir. Certio- rari denied. Reported below: 70 F. 3d 64. No. 95­8308. Davis v. Pennsylvania. Super. Ct. Pa. Cer- tiorari denied. Reported below: 445 Pa. Super. 625, 664 A. 2d 1054. No. 95­8359. Elrod v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 77 F. 3d 474. No. 95­8368. Simmons v. United States; and No. 95­8460. Sanchez v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 74 F. 3d 1251. No. 95­8383. Sussman v. New York. App. Term, Sup. Ct. N. Y., 9th and 10th Jud. Dists. Certiorari denied. No. 95­8384. Cairnes v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 64 F. 3d 659. No. 95­8406. Knight v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 65 F. 3d 178. No. 95­8407. Grennier v. Nagle et al. C. A. 7th Cir. Certiorari denied. Reported below: 73 F. 3d 364. No. 95­8411. Okayfor v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 72 F. 3d 130. No. 95­8419. McCormack v. Thompson, Superintendent, Oregon State Penitentiary. C. A. 9th Cir. Certiorari de- nied. Reported below: 73 F. 3d 369. No. 95­8432. Barnett v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 65 F. 3d 180. No. 95­8439. Gibson v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 64 F. 3d 617. 517ORD$$2u 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1174 OCTOBER TERM, 1995 April 29, 1996 517 U. S. No. 95­8440. Pratt v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1255. No. 95­8442. Bradford v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 78 F. 3d 1216. No. 95­8444. Brown v. United States. C. A. 8th Cir. Cer- tiorari denied. Reported below: 72 F. 3d 134. No. 95­8456. Monreal v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 64 F. 3d 355. No. 95­8467. Padilla v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 77 F. 3d 465. No. 95­8471. Bratton v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 478. No. 95­8475. Rose v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1252. No. 95­8480. Caballero Ybarra v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 362. No. 95­8486. Renelus v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 72 F. 3d 888. No. 95­8489. Brown v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 73 F. 3d 370. No. 95­8490. Alexander v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 69 F. 3d 548. No. 95­8498. Greenidge v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 100 F. 3d 941. No. 95­8503. Rodriguez v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 67 F. 3d 1312. No. 95­856. Janklow, Governor of South Dakota, et al. v. Planned Parenthood, Sioux Falls Clinic, et al. C. A. 8th Cir. Motion of National Right to Life Committee, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied. Reported below: 63 F. 3d 1452. 517ORD$$2u 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1175 1174 Memorandum of Stevens, J. Memorandum of Justice Stevens, respecting the denial of the petition for certiorari. The Court's opinion in United States v. Salerno, 481 U. S. 739 (1987), correctly summarized a long established principle of our jurisprudence: "The fact that [a legislative] Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid." Id., at 745. Unfortunately, the preceding sentence in the Salerno opinion went well beyond that principle. That sentence opens Part II of the opinion with a rhetorical flourish, stating that a facial chal- lenge must fail unless there is "no set of circumstances" in which the statute could be validly applied. Ibid.; post, at 1178. That statement was unsupported by citation or precedent. It was also unnecessary to the holding in the case, for the Court effectively held that the statute at issue would be constitutional as applied in a large fraction of cases. See 481 U. S., at 749­750. While a facial challenge may be more difficult to mount than an as-applied challenge, the dicta in Salerno "does not accurately characterize the standard for deciding facial challenges," and "nei- ther accurately reflects the Court's practice with respect to facial challenges, nor is it consistent with a wide array of legal princi- ples." Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 236, 238 (1994). For these reasons, Salerno's rigid and unwise dictum has been properly ignored in subsequent cases even outside the abortion context.1 Accordingly, there is 1 See, e. g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 895 (1992) (statute facially invalid as "substantial obstacle" to exercise of right in "large fraction" of cases); id., at 972­973 (Rehnquist, C. J., con- curring in judgment in part and dissenting in part) (arguing that "no circum- stance" dictum should have led to different result); Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and Finance, 505 U. S. 71, 82 (1992) (Rehnquist, C. J., dissenting) (arguing that tax statute was facially valid because it would be constitutional under certain facts); INS v. National Center for Immi- grants' Rights, Inc., 502 U. S. 183, 188 (1991) (applying appropriate rule: "That the regulation may be invalid as applied in [some] cases, . . . does not mean that the regulation is facially invalid"); Bowen v. Kendrick, 487 U. S. 589, 602 (1988) (statute facially invalid under Establishment Clause only if, inter alia, law's "primary effect" is advancement of religion, or if it requires "excessive entanglement" between church and state); id., at 627, n. 1 (Black- mun, J., dissenting) (pointing out and agreeing with majority's failure to apply "no circumstance" dictum); Shaffer v. Heitner, 433 U. S. 186 (1977) 517ORD$$2u 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1176 OCTOBER TERM, 1995 Scalia, J., dissenting 517 U. S. no need for this Court affirmatively to disavow that unfortunate language, in the abortion context or otherwise, until it is clear that a federal court has ignored the appropriate principle and applied the draconian "no circumstance" dictum to deny relief in a case in which a facial challenge would otherwise be successful.2 I thus concur in the denial of this petition. Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting. In this case, the United States Court of Appeals for the Eighth Circuit declared unconstitutional a South Dakota law which re- quires a physician to notify a pregnant minor's parent of an im- pending abortion 48 hours before the abortion is to be performed.1 (examining facial validity of state statute permitting exercise of personal jurisdiction over defendant without reference to whether statute was consti- tutional as applied to petitioner). These cases, along with other decisions and the holding in Salerno itself (that the challenged Act was constitutional in most circumstances, not merely one), should have braced the dissent against the minor risk of whip- lash from the "head-snapping" observation, post, at 1180, that our "doctrinal pattern is somewhat more complex" than Salerno's "no circumstance" lan- guage suggests, Fallon, Making Sense of Overbreadth, 100 Yale L. J. 853, 859, n. 29 (1991) (citing cases). 2 In all likelihood, the decision of the Fifth Circuit applying the "no cir- cumstance" test would have been decided the same way even if that court had utilized the "large fraction" test applied by the Eighth Circuit in this case. See Barnes v. Moore, 970 F. 2d 12, 14 (CA5 1992) (noting that the provisions at issue were "substantially identical" to provisions upheld in Casey). Furthermore, it is not at all clear to me, given intervening statements by Members of this Court, see Fargo Women's Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993), that subsequent Fifth Circuit panels would follow Barnes' application of the "no circumstance" test, providing yet another rea- son to deny the petition in this case. 1 South Dakota Codified Laws § 34­23A­7 (1994 rev.) provides, in relevant part: "No abortion may be performed upon an unemancipated minor or upon a female for whom a guardian has been appointed because of a finding of incompetency, until at least forty-eight hours after written notice of the pending operation has been delivered in the manner specified in this section. The notice shall be addressed to the parent at the usual place of abode of the parent and shall be delivered personally to the parent by the physician or an agent. In lieu of such delivery, notice may be made by certified mail addressed to the parent at the usual place of abode of the parent with return receipt requested and restricted delivery to the addressee, which means a postal employee can only deliver the mail to the authorized addressee. If 517ORD$$2u 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1177 1174 Scalia, J., dissenting The court's basis for the invalidation was that "a large fraction of minors seeking pre-viability abortions would be unduly bur- dened by [the] statute, despite its abuse exception," 2 Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F. 3d 1452, 1463 (1995) (emphasis added). This decision is questionable enough that we should, since the invalidation of state law is at issue, accord review. Among other things, it rested upon the court's belief that "it seems, South Dakota's abuse exception will sometimes result in parental notifi- cation, even if after-the-fact." Id., at 1461. That reasoning is inconsistent with our holding in Ohio v. Akron Center for Repro- ductive Health, 497 U. S. 502, 514 (1990), another case involving a parental notification provision, that "[t]he Court of Appeals should not have invalidated the Ohio statute on a facial challenge based upon a worst-case analysis that may never occur." The Eighth Circuit's holding is also dependent on the questionable conclusions (1) that "parental-notice provisions, like parental- consent provisions, are unconstitutional without a Bellotti-type bypass," 63 F. 3d, at 1460, see Bellotti v. Baird, 443 U. S. 622 (1979), and (2) that the South Dakota law's exception for abused notice is made by certified mail, the time of delivery shall be deemed to occur at twelve o'clock noon on the next day on which regular mail delivery takes place, subsequent to mailing." 2 South Dakota Codified Laws § 34­23A­7 (1994 rev.) sets forth the follow- ing exceptions to its notice requirement: "No notice is required under this section if: "(1) The attending physician certifies in the pregnant minor's medical rec- ord that, on the basis of the physician's good faith clinical judgment, a medi- cal emergency exists that so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function and there is insufficient time to provide the required notice; or "(2) The person who is entitled to notice certifies in writing that he has been notified; or "(3) The pregnant minor declares, or provides information that indicates, that she is an abused or neglected child as defined in § 26­8A­2 and the attending physician has reported the alleged or suspected abuse or neglect as required in accordance with [state law]. In such circumstances, the de- partment of social services, the state's attorney and law enforcement officers to whom the report is made or referred for investigation or litigation shall maintain the confidentiality of the fact that she has sought or obtained an abortion and shall take all necessary steps to ensure that this information is not revealed to her parents." 517ORD$$2u 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1178 OCTOBER TERM, 1995 Scalia, J., dissenting 517 U. S. and neglected minors did not satisfy the need for a bypass proce- dure, 63 F. 3d, at 1460­1463. Beyond these issues, however (or, more accurately, preceding them), is another question that virtually cries out for our review. In United States v. Salerno, 481 U. S. 739 (1987), summarizing a long established principle of our jurisprudence, we observed: "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the chal- lenger must establish that no set of circumstances exists under which the Act would be valid. The fact that [a legisla- tive Act] might operate unconstitutionally under some con- ceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an `overbreadth' doc- trine outside the limited context of the First Amendment." Id., at 745. It has become questionable whether, for some reason, this clear principle does not apply in abortion cases. As I observed three Terms ago in a case very similar to this one, we have sent mixed signals on the question-seemingly employing an overbreadth ap- proach in Roe v. Wade, 410 U. S. 113 (1973), but explicitly reject- ing that approach in such later abortion cases as Ohio v. Akron Center for Reproductive Health, supra, at 514, and Rust v. Sulli- van, 500 U. S. 173, 183 (1991).3 In dissenting from denial of cer- tiorari in Ada v. Guam Soc. of Obstetricians & Gynecologists, 3 See also Webster v. Reproductive Health Services, 492 U. S. 490, 524 (1989) (O'Connor, J., concurring in part and concurring in judgment) ("[S]ome quite straightforward applications of the Missouri ban on the use of public facilities for performing abortions would be constitutional and that is enough to defeat appellees' assertion that the ban is facially unconstitu- tional"). Justice Stevens' memorandum in support of the denial of certio- rari says that the Salerno rule "has been properly ignored in subsequent cases even outside the abortion context." Ante, at 1175. If he means by this that the rule has consistently been ignored, the statement is proved false by the cases cited here in text, where the rule was both recited and followed. (And there are other post-Salerno cases reciting and applying the rule outside the abortion context, see, e. g., Anderson v. Edwards, 514 U. S. 143, 155­156, n. 6 (1995), and Reno v. Flores, 507 U. S. 292, 301, 309 (1993).) If, on the other hand, Justice Stevens merely means that the Salerno rule has sometimes "been ignored," though it has other times been applied, then he makes a good case for granting, rather than denying, certiorari. 517ORD$$2u 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1179 1174 Scalia, J., dissenting 506 U. S. 1011, 1013 (1992), I expressed my view that "[t]he Court did not purport to change this well-established rule . . . in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992)." Since then, two Members of the Casey majority have expressed their view that Salerno is "inconsistent with Casey." See Fargo Women's Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993) (O'Connor, J., joined by Souter, J., concurring). In this case-after reviewing the incompatible pronouncements of the Court's opinions on this subject, and remarking that "even the Justices of the Supreme Court dispute Casey's effect," 63 F. 3d, at 1457-the Court of Appeals concluded, in effect, that Sa- lerno had been chewed up by the "ad hoc nullification machine" which is our abortion jurisprudence, Madsen v. Women's Health Center, Inc., 512 U. S. 753, 785 (1994) (Scalia, J., dissenting). The court decided that Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), without so much as alluding to the facial-challenge rule, "effectively overruled Salerno for facial challenges to abortion statutes," 63 F. 3d, at 1458. This holding conflicts head on with a post-Casey decision of the Fifth Circuit. In Barnes v. Moore, 970 F. 2d 12, cert. denied, 506 U. S. 1021 (1992), the Fifth Circuit rejected a facial challenge to the Missis- sippi Informed Consent to Abortion Act. In the process, it said that "[b]ecause the plaintiffs are challenging the facial validity of the Mississippi Act, they must `establish that no set of circum- stances exists under which the Act would be valid,' " 970 F. 2d, at 14, adding that "we do not interpret Casey as having overruled, sub silentio, longstanding Supreme Court precedent governing challenges to the facial constitutionality of statutes," id., at 14, n. 2. The split between the Fifth and Eighth Circuits is unmis- takably clear. The Third Circuit has also weighed in on this question (albeit in dictum), siding with the Eighth Circuit. See Casey v. Planned Parenthood of Southeastern Pa., 14 F. 3d 848, 863, n. 21 (1994). The Salerno question could not be more squarely presented. The Court of Appeals explained that "[t]he critical issue in this case is . . . what is the standard for a challenge to the facial constitutionality of an abortion law?" 63 F. 3d, at 1456 (emphasis added). It specifically acknowledged that "Planned Parenthood cannot meet the Salerno test." Id., at 1457. Had the Court of Appeals not concluded that the Salerno rule has been selectively 517ORD$$2u 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1180 OCTOBER TERM, 1995 Scalia, J., dissenting 517 U. S. (and sub silentio) nullified in abortion cases, respondents' facial challenge quite simply would have failed. Justice Stevens' memorandum in support of the denial of this petition provides even stronger reasons than I have why it should be granted. Justice Stevens asserts that Casey could not pos- sibly have been contrary to the "no set of circumstances" rule because, contrary to the repeated statement of our cases, that rule never existed. For that head-snapping proposition, he relies upon no less weighty authority than a law review article by Mi- chael C. Dorf. According to that author, The Chief Justice's statement on behalf of the Court in Salerno was not only "wrong" but "draconian." Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 238, 239 (1994); see ante, at 1176. But if that is so, if Salerno is a dead letter even outside of the abortion context, all the more reason to grant certiorari and make that clear.4 For the courts of appeals regularly enforce that sup- posed dead letter, often in cases in which its "draconian" character prevents the facial challenge from succeeding. See, e. g., Chemi- cal Waste Management, Inc. v. United States Environmental Protection Agency, 56 F. 3d 1434, 1437 (CADC 1995) ("We discern at least one scenario where the off-site rule would be procedurally valid. . . . While this hypothetical scenario may not be common, it is sufficient to establish that petitioners' facial challenge must fail"); United States v. Mena, 863 F. 2d 1522, 1527 (CA11 1989) ("[T]he defendants have simply failed even to suggest `that no set of circumstances exists under which the Act would be valid.' Such is the defendant's burden in a case challenging the facial validity of a congressional enactment on other than first- amendment grounds"); Roulette v. Seattle, 78 F. 3d 1425, 1430 (CA9 1996) ("Plaintiffs have conceded that `the city may prevent individuals or groups of people from sitting or lying across a sidewalk in such a way as to prevent others from passing.' The Seattle ordinance plainly may be applied to such cases, and plain- tiffs' facial substantive due process challenge therefore fails") (ci- 4 While we are in the process of adopting Professor Dorf's revisionist view of Salerno, we could also embrace his modest proposal for what ought to replace the rule described in that case. His proposal is not, curiously enough, the regime that Justice Stevens suggests, but rather total elimi- nation of the distinction between facial and as-applied challenges. Dorf, Fa- cial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 294 (1994). 517ORD$$2u 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1181 517 U. S. April 29, 1996 tation omitted); Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d 1267, 1283 (CA7 1992); Dean v. McWherter, 70 F. 3d 43, 45 (CA6 1995); National Treasury Employees Union v. Bush, 891 F. 2d 99, 101 (CA5 1989) ("[B]ecause not every applica- tion of the Order would be invalid, the Order is facially valid"); Jordan v. Jackson, 15 F. 3d 333, 343­344 (CA4 1994); Giusto v. INS, 9 F. 3d 8, 10 (CA2 1993). Finally, I cannot let pass without comment Justice Stevens' suggestion that Fifth Circuit panels might, in future abortion cases, ignore the clear language of Salerno, and the Fifth Circuit's own decision in Barnes, "given intervening statements by Mem- bers of this Court"-by which he means the memorandum of Jus- tice O'Connor, joined by Justice Souter, concurring in the Court's order of April 2, 1993, denying (without opinion) the appli- cation for stay and injunction pending appeal in Fargo Women's Health Organization v. Schafer, supra. See ante, at 1176, n. 2. That the Fifth Circuit might give such authoritative effect to this two-Justice concurrence is certainly true; courts of appeals, no less than practitioners, sometimes count votes instead of following cases. But I am surprised to find that practice endorsed by Jus- tice Stevens, who has hitherto taken a dim view of separate writings appended to discretionary (and unexplained) denials, call- ing "all opinions dissenting from the denial of certiorari" "totally unnecessary" and "examples of the purest form of dicta." Single- ton v. Commissioner, 439 U. S. 940, 944­945 (1978) (Stevens, J., respecting denial of certiorari). More fundamentally, I find it hard to understand why one who believes that Salerno's "no set of circumstances" rule is nothing more than unwise, rigid, and inaccurate dictum, ante, at 1175, would not seize upon this oppor- tunity "affirmatively to disavow" it, ante, at 1176, instead of hop- ing that the courts of appeals will be induced to abandon it by reading the tea leaves of concurring opinions. Today's denial serves only one rational purpose: It makes our abortion ad hoc nullification machine as stealthful as possible. For the foregoing reasons, I dissent from the Court's denial of the petition for certiorari. No. 95­1572. Allen v. United States. C. A. 6th Cir. Mo- tion of Michael Allen, personal representative of the estate of Albert A. Allen, to be substituted as petitioner in place of Albert 517ORD$$2u 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1182 OCTOBER TERM, 1995 April 29, 30, May 2, 3, 1996 517 U. S. A. Allen, deceased, denied. Certiorari denied. Reported below: 73 F. 3d 64. Rehearing Denied No. 95­7761. Calhoun v. Huskisson et al., 516 U. S. 1180; andNo. 95­7978. Lemon v. Johnson, Warden, 516 U. S. 1184. Petitions for rehearing denied. April 30, 1996 Dismissal Under Rule 46 No. 95­928. Atherton et al. v. Federal Deposit Insur- ance Corporation, as Receiver for City Savings, F. S. B. C. A. 3d Cir. [Certiorari granted, ante, p. 1133.] Writ of certio- rari dismissed as to Gordon E. Allen and Peter R. Kellogg under this Court's Rule 46.1. May 2, 1996 Miscellaneous Order No. A­894. Calderon, Warden, et al. v. California First Amendment Coalition et al. D. C. N. D. Cal. Application for stay pending appeal, presented to Justice O'Connor, and by her referred to the Court, denied. May 3, 1996 Dismissal Under Rule 46 No. 95­1699. Ampex Corp. v. Frymire et al. C. A. 10th Cir. Certiorari dismissed under this Court's Rule 46.1. Re- ported below: 61 F. 3d 757. Certiorari Granted No. 95­8836 (A­890). Felker v. Turpin, Warden. C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, granted. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted. The parties shall submit briefs limited to the following questions: "(1) Whether Title I of the Anti-Terrorism and Effective Death Penalty Act of 1996 (Act), and in particular § 106(b)(3)(E), 28 U. S. C. 517ORD$$2u 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1183 517 U. S. May 3, 13, 1996 § 2244(b)(3)(E), is an unconstitutional restriction of the jurisdic- tion of this Court. (2) Whether and to what extent the provisions of Title I of the Act apply to petitions for habeas corpus filed as original matters in this Court pursuant to 28 U. S. C. § 2241. (3) Whether application of the Act in this case is a suspension of the writ of habeas corpus in violation of Art. I, § 9, cl. 2 of the Constitution." The parties' briefs are to be filed with the Clerk of this Court and served upon opposing counsel on or before 2 p.m., Friday, May 17, 1996. Reply briefs, if any, may be filed with the Clerk of this Court and served upon opposing counsel on or before 2 p.m., Tuesday, May 28, 1996. The Solicitor General is invited to file a brief expressing the views of the United States. Briefs may be submitted in compliance with this Court's Rule 33.2 to be replaced as soon as possible with briefs prepared under Rule 33.1. Rule 29.2 does not apply. Oral argument is set for Monday, June 3, 1996, at 10 a.m. Reported below: 83 F. 3d 1303. Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting. In my opinion, it is both unnecessary and profoundly unwise for the Court to order expedited briefing of the important ques- tions raised by the petition for certiorari and application for a writ of habeas corpus. Even if the majority were right that this petition squarely presents substantial constitutional questions about the power of Congress to limit this Court's jurisdiction, our consideration of them surely should be undertaken with the ut- most deliberation, rather than unseemly haste. Accordingly, I respectfully dissent from the entry of the foregoing order. Certiorari Denied No. 95­8845 (A­895). Williams v. Calderon, Warden. C. A. 9th Cir. Application for stay of execution of sentence of death, presented to Justice O'Connor, and by her referred to the Court, denied. Certiorari denied. Reported below: 83 F. 3d 281. May 13, 1996 Dismissal Under Rule 46 No. 95­1087. London et al. v. Concha et al. C. A. 9th Cir. Certiorari dismissed under this Court's Rule 46. Reported below: 62 F. 3d 1493. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1184 OCTOBER TERM, 1995 May 13, 1996 517 U. S. Certiorari Granted-Vacated and Remanded No. 95­851. University of Houston et al. v. Chavez. C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Seminole Tribe of Fla. v. Florida, ante, p. 44. Reported below: 59 F. 3d 539. No. 95­7750. Adams v. United States. C. A. 5th Cir. Mo- tion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for fur- ther consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 68 F. 3d 471. No. 95­7831. Olds v. United States. C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for fur- ther consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 70 F. 3d 116. No. 95­8128. Carter v. United States. C. A. 6th Cir. Mo- tion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for fur- ther consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 72 F. 3d 130. Miscellaneous Orders No. A­733 (95­8566). Youngs v. Wheless, Bankruptcy Judge, United States District Court for the Southern District of Texas, et al. C. A. 5th Cir. Application for stay, addressed to Justice Stevens and referred to the Court, denied. No. A­820. James v. Collins. Application for preliminary injunction, addressed to Justice Stevens and referred to the Court, denied. No. D­1587. In re Disbarment of Genins. Disbarment entered. [For earlier order herein, see 515 U. S. 1185.] No. D­1655. In re Disbarment of Tanner. Disbarment entered. [For earlier order herein, see 516 U. S. 1144.] No. D­1656. In re Disbarment of Markovitch. Disbar- ment entered. [For earlier order herein, see 516 U. S. 1144.] No. D­1657. In re Disbarment of Dameron. Disbarment entered. [For earlier order herein, see 516 U. S. 1169.] 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1185 517 U. S. May 13, 1996 No. D­1660. In re Disbarment of Tighe. Disbarment en- tered. [For earlier order herein, see 516 U. S. 1169.] No. D­1677. In re Disbarment of Witt. Ralph H. Witt, of Atlanta, Ga., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1678. In re Disbarment of Hirsh. Stuart H. Hirsh, of Los Angeles, Cal., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1679. In re Disbarment of Brown. David M. Brown, of Sherman Oaks, Cal., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1680. In re Disbarment of Calvert. David Ross Calvert, of Englewood, Colo., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. M­61. Hoesterey v. City of Cathedral City et al.; andNo. M­62. Jardine v. Brown, Secretary of Veterans Af- fairs. Motions to direct the Clerk to file petitions for writs of certiorari out of time denied. No. 95­853. M. L. B. v. S. L. J., Individually and as Next Friend of the Minor Children, S. L. J. and M. L. J., et ux. Sup. Ct. Miss. [Certiorari granted, ante, p. 1118.] Motion of petitioner to dispense with printing the joint appendix granted. No. 95­865. United States v. Winstar Corp. et al. C. A. Fed. Cir. [Certiorari granted, 516 U. S. 1087.] Motion of re- spondent Glendale Federal Bank, FSB, for leave to file a supple- mental brief after argument denied. No. 95­1748. Aaron v. Public Utilities Commission of California. Sup. Ct. Cal. Motion of petitioner to expedite con- sideration of petition for writ of certiorari denied. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1186 OCTOBER TERM, 1995 May 13, 1996 517 U. S. No. 95­7587. Shieh v. Kakita et al. C. A. 9th Cir.; and No. 95­7589. Shieh v. Krieger et al. C. A. 9th Cir. Mo- tion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [ante, p. 343] denied. No. 95­7588. Shieh v. United States Court of Appeals for the Ninth Circuit. C. A. 9th Cir. Motion of petitioner for reconsideration of order denying leave to proceed in forma pauperis [ante, p. 343] denied. No. 95­7693. Jones v. American Civil Liberties Union Foundation et al. C. A. 8th Cir. Motion of petitioner for reconsideration of order denying leave to proceed in forma pau- peris [ante, p. 1118] denied. No. 95­8785. Kaczynski v. United States. C. A. 9th Cir. Motion of petitioner to expedite consideration of petition for writ of certiorari denied. No. 95­8633. In re Day. Petition for writ of habeas corpus denied. No. 95­8209. In re Williams; No. 95­8251. In re Cordova; and No. 95­8281. In re Reeves. Petitions for writs of manda- mus denied. No. 95­1647. In re Bio-Recovery, Inc. Petition for writ of prohibition denied. Certiorari Granted No. 95­1441. Blessing, Director, Arizona Department of Economic Security v. Freestone et al., on Behalf of Their Minor Children. C. A. 9th Cir. Certiorari granted. Re- ported below: 68 F. 3d 1141. No. 95­1081. Ingalls Shipbuilding, Inc., et al. v. Direc- tor, Office of Workers' Compensation Programs, Depart- ment of Labor, et al. C. A. 5th Cir. Certiorari granted lim- ited to Questions 1 and 2 presented by the petition. Reported below: 65 F. 3d 460. No. 95­7452. Lynce v. Mathis, Superintendent, Tomoka Correctional Institution, et al. C. A. 11th Cir. Motion of 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1187 517 U. S. May 13, 1996 petitioner for leave to proceed in forma pauperis granted. Cer- tiorari granted limited to Question 1 presented by the petition. Certiorari Denied No. 95­847. Gambino v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 59 F. 3d 353. No. 95­965. Stern v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 68 F. 3d 485. No. 95­1036. Menken et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 309. No. 95­1040. Alabama v. Seeley. Ct. Crim. App. Ala. Cer- tiorari denied. Reported below: 669 So. 2d 209. No. 95­1075. Chavez v. University of Houston et al. C. A. 5th Cir. Certiorari denied. Reported below: 59 F. 3d 539. No. 95­1084. Alaska v. Babbitt, Secretary of the Inte- rior, et al.; and No. 95­1496. Alaska Federation of Natives v. United States et al. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 698. No. 95­1103. Wapnick et al. v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 60 F. 3d 948. No. 95­1109. Murdock v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 63 F. 3d 1391. No. 95­1121. Calvo v. United States Court of Appeals for the Eleventh Circuit. C. A. 11th Cir. Certiorari denied. No. 95­1162. Sumpter v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 64 F. 3d 663. No. 95­1233. Cost Control Marketing & Sales Manage- ment of Virginia, Inc., et al. v. Cisneros, Secretary of Housing and Urban Development. C. A. 4th Cir. Certiorari denied. Reported below: 64 F. 3d 920. No. 95­1240. Campbell v. Louisiana. Sup. Ct. La. Certio- rari denied. Reported below: 661 So. 2d 1321. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1188 OCTOBER TERM, 1995 May 13, 1996 517 U. S. No. 95­1243. Plunk v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 68 F. 3d 482. No. 95­1246. Smith v. Runyon, Postmaster General. C. A. 11th Cir. Certiorari denied. Reported below: 65 F. 3d 182. No. 95­1249. Chiles, Governor of Florida, et al. v. United States et al. C. A. 11th Cir. Certiorari denied. Re- ported below: 69 F. 3d 1094. No. 95­1259. Holmes, dba Holmes Bi-Rite Supermarket v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 67 F. 3d 314. No. 95­1266. Alexander v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 63 F. 3d 820. No. 95­1275. LeFevre et al. v. Brown, Secretary of Vet- erans Affairs. C. A. Fed. Cir. Certiorari denied. Reported below: 66 F. 3d 1191. No. 95­1288. All American Asphalt et al. v. Hyles et al. Ct. App. Cal., 4th App. Dist. Certiorari denied. No. 95­1344. Chavez v. Housing Authority of the City of El Paso. Ct. App. Tex., 8th Dist. Certiorari denied. Reported below: 897 S. W. 2d 523. No. 95­1373. Lebron v. National Railroad Passenger Corporation (AMTRAK). C. A. 2d Cir. Certiorari denied. Reported below: 69 F. 3d 650 and 74 F. 3d 371. No. 95­1405. Lamb v. Citibank, N. A. C. A. 2d Cir. Certio- rari denied. Reported below: 122 F. 3d 1056. No. 95­1408. Carter v. Montana Department of Trans- portation et al. Sup. Ct. Mont. Certiorari denied. Reported below: 274 Mont. 39, 905 P. 2d 1102. No. 95­1418. Perego et al. v. King Instrument Corp. C. A. Fed. Cir. Certiorari denied. Reported below: 65 F. 3d 941. No. 95­1419. Kiowa Tribe of Oklahoma v. Hoover. Sup. Ct. Okla. Certiorari denied. Reported below: 909 P. 2d 59. No. 95­1423. Cully v. St. Augustine Manor et al. Ct. App. Ohio, Cuyahoga County. Certiorari denied. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1189 517 U. S. May 13, 1996 No. 95­1426. Estate of Hansen v. City of New Haven. App. Ct. Conn. Certiorari denied. Reported below: 38 Conn. App. 902, 659 A. 2d 1231. No. 95­1432. National Association of Review Apprais- ers & Mortgage Underwriters, Inc., et al. v. Appraisal Foundation et al. C. A. 8th Cir. Certiorari denied. Re- ported below: 64 F. 3d 1130. No. 95­1434. Hughes Salaried Retirees Action Commit- tee et al. v. Administrator, Hughes Non-Bargaining Re- tirement Plan. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 686. No. 95­1435. Graven Auction Co., Inc., et al. v. Fink, Trustee. C. A. 8th Cir. Certiorari denied. Reported below: 64 F. 3d 453. No. 95­1437. Smith v. North Carolina. Sup. Ct. N. C. Certiorari denied. Reported below: 342 N. C. 407, 464 S. E. 2d 45. No. 95­1452. Singer v. Sheriff, Fulton County, et al. C. A. 2d Cir. Certiorari denied. Reported below: 63 F. 3d 110. No. 95­1456. Sparky's Waterfront Saloon, Inc. v. Cosmo- politan, Inc., et al. C. A. 3d Cir. Certiorari denied. Re- ported below: 74 F. 3d 1227. No. 95­1459. Irons v. Karceski et al. C. A. D. C. Cir. Certiorari denied. Reported below: 74 F. 3d 1262. No. 95­1461. Petitte Brothers Mining Co., Inc., et al. v. Connors, Trustee, United Mine Workers of America 1950 Pension Plan, et al. C. A. D. C. Cir. Certiorari denied. Re- ported below: 70 F. 3d 637. No. 95­1462. St. Louis County, Missouri v. Kornblum. C. A. 8th Cir. Certiorari denied. Reported below: 72 F. 3d 661. No. 95­1463. Thomason v. Prince George's County, Mary- land. Ct. Sp. App. Md. Certiorari denied. Reported below: 105 Md. App. 807. No. 95­1464. Hazen v. Cooper et al. Ct. App. Tex., 14th Dist. Certiorari denied. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1190 OCTOBER TERM, 1995 May 13, 1996 517 U. S. No. 95­1465. Village of Depew v. Gummo. C. A. 2d Cir. Certiorari denied. Reported below: 75 F. 3d 98. No. 95­1470. Central States, Southeast and Southwest Areas Pension Fund v. Sherwin-Williams Co. C. A. 7th Cir. Certiorari denied. Reported below: 71 F. 3d 1338. No. 95­1471. Motley v. Marathon Oil Co. C. A. 10th Cir. Certiorari denied. Reported below: 71 F. 3d 1547. No. 95­1473. Praxair, Inc. v. Florida Power & Light Co. et al. C. A. 11th Cir. Certiorari denied. Reported below: 64 F. 3d 609. No. 95­1474. New Mexico Department of Human Serv- ices et al. v. Joseph A. et al., by Their Next Friend, Wolfe, et al. C. A. 10th Cir. Certiorari denied. Reported below: 69 F. 3d 1081. No. 95­1479. Wherehouse Entertainment, Inc., et al. v. McMahan & Co. et al. C. A. 2d Cir. Certiorari denied. Re- ported below: 65 F. 3d 1044. No. 95­1486. Holmes v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 74 F. 3d 1237. No. 95­1502. Fox v. Hinson, Administrator, Federal Avi- ation Administration. C. A. D. C. Cir. Certiorari denied. Reported below: 76 F. 3d 1244. No. 95­1518. Florida v. Frazier. Dist. Ct. App. Fla., 4th Dist. Certiorari denied. Reported below: 664 So. 2d 985. No. 95­1519. Young v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 70 F. 3d 130. No. 95­1520. Arizona et al. v. Hook et al. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 544. No. 95­1536. Florida v. Dupont. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Reported below: 659 So. 2d 405. No. 95­1541. Hennessey v. Blalack et al. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 473. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1191 517 U. S. May 13, 1996 No. 95­1545. Sutton v. Gibson et al. C. A. 3d Cir. Certio- rari denied. Reported below: 77 F. 3d 464. No. 95­1550. Weinberg v. Management Company Enter- tainment Group et al. C. A. 2d Cir. Certiorari denied. Re- ported below: 71 F. 3d 405. No. 95­1570. Fried v. Pennsylvania. Super. Ct. Pa. Cer- tiorari denied. Reported below: 436 Pa. Super. 642, 647 A. 2d 262. No. 95­1577. Conley et al. v. Eugene. C. A. 5th Cir. Cer- tiorari denied. Reported below: 65 F. 3d 1299. No. 95­1580. Smith et ux. v. New Hampshire Board of Licensure for Land Surveyors et al. C. A. 1st Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1253. No. 95­1597. Smith v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1264. No. 95­1600. CenTra, Inc., et al. v. Chandler Insurance Co., Ltd., et al. Sup. Ct. Neb. Certiorari denied. Reported below: 248 Neb. 844, 540 N. W. 2d 318. No. 95­1604. Kletzelman v. Capistrano Unified School District et al. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 1279. No. 95­1606. Bennett v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 113. No. 95­1617. Thomas v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 479. No. 95­1618. Gowin v. Dade County Auto Tag Office, De- partment of Highway Safety and Motor Vehicles. C. A. 11th Cir. Certiorari denied. Reported below: 55 F. 3d 636. No. 95­1620. Shrader v. North Carolina et al. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 1263. No. 95­1627. Ramos v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1281. No. 95­1632. Soares v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 68 F. 3d 19. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1192 OCTOBER TERM, 1995 May 13, 1996 517 U. S. No. 95­1645. Jackson v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 100 F. 3d 941. No. 95­1652. Dyson v. City of Pawtucket et al. Sup. Ct. R. I. Certiorari denied. Reported below: 670 A. 2d 233. No. 95­1655. Tate v. United States. C. A. Armed Forces. Certiorari denied. Reported below: 43 M. J. 464. No. 95­1660. Nordvik et ux. v. Commissioner of Internal Revenue. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 1489. No. 95­1663. Catalfo v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 64 F. 3d 1070. No. 95­1667. Baker et ux. v. Internal Revenue Service. C. A. 9th Cir. Certiorari denied. Reported below: 74 F. 3d 906. No. 95­6992. Morrow v. Texas. Ct. Crim. App. Tex. Cer- tiorari denied. Reported below: 910 S. W. 2d 471. No. 95­7262. Jackson v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 67 F. 3d 297. No. 95­7317. Hooper v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 65 F. 3d 169. No. 95­7434. Mitchell v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. Reported below: 36 Cal. App. 4th 672, 42 Cal. Rptr. 2d 537. No. 95­7436. Jackson v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 67 F. 3d 1359. No. 95­7505. Davis v. Mississippi. Sup. Ct. Miss. Certio- rari denied. Reported below: 660 So. 2d 1228. No. 95­7621. Wolfe v. Montana Department of Correc- tions and Human Services. C. A. 9th Cir. Certiorari denied. No. 95­7720. Williams v. Love, Superintendent, State Correctional Institution at Huntingdon, et al. C. A. 3d Cir. Certiorari denied. No. 95­7728. DeBarr v. Nevada. Sup. Ct. Nev. Certiorari denied. Reported below: 111 Nev. 1712, 916 P. 2d 194. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1193 517 U. S. May 13, 1996 No. 95­7777. Morris v. King, Director, Office of Person- nel Management, et al. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 307. No. 95­7801. Ponder v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 63 F. 3d 1112. No. 95­7863. Pryce v. United States. C. A. 1st Cir. Cer- tiorari denied. No. 95­7886. Hawkins v. California. Sup. Ct. Cal. Certio- rari denied. Reported below: 10 Cal. 4th 920, 897 P. 2d 574. No. 95­7968. Kailey v. Norton, Attorney General of Colorado, et al. C. A. 10th Cir. Certiorari denied. Reported below: 74 F. 3d 1249. No. 95­8146. Moon v. Thomas, Warden. Super. Ct. Butts County, Ga. Certiorari denied. No. 95­8149. Lowe v. California. Sup. Ct. Cal. Certio- rari denied. No. 95­8152. Mulazim v. Nuckles. C. A. 6th Cir. Certio- rari denied. No. 95­8158. Cotner v. Oklahoma et al. C. A. 10th Cir. Certiorari denied. Reported below: 74 F. 3d 1248. No. 95­8166. House v. Tennessee. Sup. Ct. Tenn. Certio- rari denied. Reported below: 911 S. W. 2d 705. No. 95­8189. Wheeler v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 269 Ill. App. 3d 1129, 685 N. E. 2d 454. No. 95­8192. Oden v. Ohio. Sup. Ct. Ohio. Certiorari de- nied. Reported below: 74 Ohio St. 3d 234, 658 N. E. 2d 273. No. 95­8196. Willis v. Bell, Rosenberg & Hughes et al. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 95­8197. Rashi v. Conley et al. C. A. 6th Cir. Certio- rari denied. Reported below: 69 F. 3d 537. No. 95­8198. Stephen v. Hewitt et al. C. A. 9th Cir. Certiorari denied. Reported below: 73 F. 3d 370. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1194 OCTOBER TERM, 1995 May 13, 1996 517 U. S. No. 95­8199. Hanus et vir v. Sears, Roebuck & Co. et al. Ct. App. Neb. Certiorari denied. Reported below: 3 Neb. App. lxxiv. No. 95­8202. Harvey v. Hamill et al. Sup. Ct. Del. Cer- tiorari denied. Reported below: 670 A. 2d 1338. No. 95­8213. Tedder v. Johnson, Warden. C. A. 11th Cir. Certiorari denied. No. 95­8214. Riker v. Nevada. Sup. Ct. Nev. Certiorari denied. Reported below: 111 Nev. 1316, 905 P. 2d 706. No. 95­8215. Roberts v. Hanks, Superintendent, Wabash Valley Correctional Institute. C. A. 7th Cir. Certiorari denied. Reported below: 73 F. 3d 364. No. 95­8216. Wesley v. Jenkins, Chief of Police, Odessa, Texas, et al. C. A. 5th Cir. Certiorari denied. Reported below: 74 F. 3d 1238. No. 95­8217. Boyd v. North Carolina. Super. Ct. N. C., Surry County. Certiorari denied. No. 95­8219. Taylor v. Hanks, Superintendent, Wabash Valley Correctional Institute. C. A. 7th Cir. Certiorari denied. No. 95­8221. Hoyett v. Jones, Commissioner, Alabama Department of Corrections, et al. C. A. 11th Cir. Certio- rari denied. No. 95­8223. Dwyer v. Sparks. Sup. Ct. Colo. Certiorari denied. No. 95­8226. In re Bethea. Ct. Common Pleas of Dauphin County, Pa. Certiorari denied. No. 95­8227. Igbo v. Church of Jesus Christ of Latter- day Saints et al. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 1262. No. 95­8228. Melancon v. Rader, Warden. C. A. 5th Cir. Certiorari denied. No. 95­8230. Jeffress v. Suter, Clerk, Supreme Court of the United States. C. A. D. C. Cir. Certiorari denied. Reported below: 70 F. 3d 638. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1195 517 U. S. May 13, 1996 No. 95­8232. Nunez v. Costello, Superintendent, Mid- state Correctional Facility, et al. C. A. 2d Cir. Certiorari denied. Reported below: 89 F. 3d 826. No. 95­8233. Lancour v. Moore, Director, South Caro- lina Department of Corrections, et al. C. A. 4th Cir. Certiorari denied. Reported below: 60 F. 3d 823. No. 95­8236. Jones v. Washington, Director, Illinois De- partment of Corrections. C. A. 7th Cir. Certiorari denied. No. 95­8239. Sprankle v. Sprankle. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Reported below: 667 So. 2d 784. No. 95­8240. Johnson-Bey v. Johnson, Director, Texas Department of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 477. No. 95­8243. Bell v. Brookshire, Sheriff, Ector County, Texas, et al. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 474. No. 95­8247. Craig v. Montana. Sup. Ct. Mont. Certiorari denied. Reported below: 274 Mont. 140, 906 P. 2d 683. No. 95­8249. Roberson v. Suarez Corp. et al. Ct. App. Tex., 12th Dist. Certiorari denied. No. 95­8252. Brown v. United States Congress et al. C. A. 11th Cir. Certiorari denied. No. 95­8254. Tafoya v. Zavaras, Executive Director, Colorado Department of Corrections, et al. C. A. 10th Cir. Certiorari denied. Reported below: 77 F. 3d 493. No. 95­8255. Thompson v. New Jersey et al. C. A. 3d Cir. Certiorari denied. No. 95­8256. Tedder et vir v. Pace et al. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 126. No. 95­8259. Olenick v. New York Telephone et al. C. A. 2d Cir. Certiorari denied. No. 95­8260. Paster v. Tensas Basin Levee District. Ct. App. La., 1st Cir. Certiorari denied. Reported below: 659 So. 2d 857. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1196 OCTOBER TERM, 1995 May 13, 1996 517 U. S. No. 95­8268. Luken v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division, et al. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 192. No. 95­8275. Windelberg v. Thompson, Warden. C. A. 11th Cir. Certiorari denied. No. 95­8278. Smith v. Nuth, Warden, et al. C. A. 4th Cir. Certiorari denied. Reported below: 74 F. 3d 1233. No. 95­8285. Shabazz v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. No. 95­8289. Thomas v. Evans. C. A. 11th Cir. Certiorari denied. No. 95­8290. Yeoman v. Dilley et al. C. A. 6th Cir. Cer- tiorari denied. No. 95­8293. Stevens v. City of Lincoln, Arkansas. Sup. Ct. Ark. Certiorari denied. No. 95­8294. Pickle v. Dutton, Warden. C. A. 6th Cir. Certiorari denied. Reported below: 72 F. 3d 130. No. 95­8298. Dawson v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 95­8306. Harvey v. Washington, Director, Illinois Department of Corrections, et al. C. A. 8th Cir. Certio- rari denied. No. 95­8315. Jeter v. Dixon et al. C. A. 4th Cir. Certio- rari denied. Reported below: 70 F. 3d 112. No. 95­8324. Swendra v. Woodford, Judge, Jefferson County District Court, et al. C. A. 10th Cir. Certiorari denied. Reported below: 76 F. 3d 393. No. 95­8341. Polur v. Grievance Committee for the Southern District of New York. C. A. 2d Cir. Certiorari denied. Reported below: 67 F. 3d 3. No. 95­8352. Augustin v. Florida. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Reported below: 666 So. 2d 218. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1197 517 U. S. May 13, 1996 No. 95­8360. Dilworth v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 169 Ill. 2d 195, 661 N. E. 2d 310. No. 95­8363. Hosier v. Wolff et al. C. A. 9th Cir. Certio- rari denied. No. 95­8364. Emery v. Plantier, Superintendent, New Jersey Adult Diagnostic and Treatment Center. C. A. 3d Cir. Certiorari denied. No. 95­8392. Robinson v. North Carolina. Sup. Ct. N. C. Certiorari denied. Reported below: 342 N. C. 74, 463 S. E. 2d 218. No. 95­8422. Lyman v. Hopkins, Warden. C. A. 8th Cir. Certiorari denied. Reported below: 69 F. 3d 541. No. 95­8424. Linton v. Alaska. Ct. App. Alaska. Certio- rari denied. Reported below: 901 P. 2d 439. No. 95­8428. Malloy v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 124. No. 95­8434. Usher v. Duncan, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 73 F. 3d 371. No. 95­8447. Darden v. Barnett, Superintendent, East- ern Correctional Institution. C. A. 4th Cir. Certiorari de- nied. Reported below: 74 F. 3d 1231. No. 95­8463. Washington v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 69 F. 3d 542. No. 95­8464. Trippet v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 95­8473. Neal v. Cooper, Warden, et al. C. A. 7th Cir. Certiorari denied. No. 95­8476. Price v. McDade, Superintendent, Harnett Correctional Institution, et al. C. A. 4th Cir. Certiorari denied. Reported below: 64 F. 3d 659. No. 95­8477. Walls v. North Carolina. Sup. Ct. N. C. Certiorari denied. Reported below: 342 N. C. 1, 463 S. E. 2d 738. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1198 OCTOBER TERM, 1995 May 13, 1996 517 U. S. No. 95­8485. Palacios v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 879. No. 95­8488. West v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 81 F. 3d 155. No. 95­8491. Dukes v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 74 F. 3d 1252. No. 95­8493. DeYoung et ux. v. Lorentz, Judge, District Court of Kansas, 31st District. C. A. 10th Cir. Certiorari denied. Reported below: 69 F. 3d 547. No. 95­8495. Hoyett v. Jones, Commissioner, Alabama Department of Corrections, et al. C. A. 11th Cir. Certio- rari denied. No. 95­8496. D'Amario v. Pine, Attorney General of Rhode Island. C. A. 1st Cir. Certiorari denied. No. 95­8497. Herrera v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 70 F. 3d 444. No. 95­8506. Ables v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 73 F. 3d 591. No. 95­8507. Fields v. Thompson, Warden. C. A. 4th Cir. Certiorari denied. Reported below: 74 F. 3d 1231. No. 95­8508. Hinojosa v. Johnson, Director, Texas De- partment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 78 F. 3d 581. No. 95­8512. Ivy v. United States. C. A. 5th Cir. Certio- rari denied. Reported below: 77 F. 3d 477. No. 95­8513. Jones v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 65 F. 3d 183. No. 95­8514. Bounds v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 480. No. 95­8527. Green v. Morton, Administrator, New Jer- sey State Prison, et al. C. A. 3d Cir. Certiorari denied. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1199 517 U. S. May 13, 1996 No. 95­8529. Gallipeau v. Rhode Island. Sup. Ct. R. I. Certiorari denied. No. 95­8530. Virta v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1241. No. 95­8531. Fauls v. United States. C. A. 7th Cir. Cer- tiorari denied. Reported below: 65 F. 3d 592. No. 95­8541. Ayala-Allende v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 478. No. 95­8542. Smith et al. v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 78 F. 3d 580. No. 95­8543. McIntyre v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 66 F. 3d 313. No. 95­8544. Rangel-Ibarra v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 477. No. 95­8548. Kissane v. Trippett, Warden. C. A. 6th Cir. Certiorari denied. No. 95­8557. Simmons v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 474. No. 95­8558. Vickaryous v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 74 F. 3d 1250. No. 95­8561. Diaz v. United States. C. A. 2d Cir. Certio- rari denied. Reported below: 100 F. 3d 941. No. 95­8567. James v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1228. No. 95­8571. Vahosky v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 76 F. 3d 381. No. 95­8572. Silks v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1281. No. 95­8574. Bradley v. United States. C. A. 1st Cir. Certiorari denied. No. 95­8579. McCutcheon v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 74 F. 3d 1254. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1200 OCTOBER TERM, 1995 May 13, 1996 517 U. S. No. 95­8581. Flynn v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 315. No. 95­8582. Hairston v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 71 F. 3d 115. No. 95­8584. Collins v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 74 F. 3d 1234. No. 95­8587. Allen v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 76 F. 3d 388. No. 95­8593. Moore v. Virginia. Sup. Ct. Va. Certiorari denied. No. 95­8595. Brewer v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 74 F. 3d 1234. No. 95­8600. Barron v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 76 F. 3d 393. No. 95­8602. Roggy v. United States. C. A. 8th Cir. Cer- tiorari denied. Reported below: 76 F. 3d 189. No. 95­8604. Saulsberry v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 7 F. 3d 236. No. 95­8606. Ross v. United States. C. A. 3d Cir. Certio- rari denied. Reported below: 77 F. 3d 465. No. 95­8609. Kelley v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported below: 221 App. Div. 2d 661, 633 N. Y. S. 2d 845. No. 95­8610. Little v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 113. No. 95­8614. Hickok v. United States. C. A. 7th Cir. Cer- tiorari denied. Reported below: 77 F. 3d 992. No. 95­8615. Dunn v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 115. No. 95­8619. Grant v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 72 F. 3d 503. No. 95­8621. Coto v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1254. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1201 517 U. S. May 13, 1996 No. 95­8626. Cole v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 72 F. 3d 128. No. 95­8628. Frost v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1280. No. 95­8629. Abdul Hakeem v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Reported below: 210 App. Div. 2d 16, 619 N. Y. S. 2d 33. No. 95­8643. Giles v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 81 F. 3d 161. No. 95­8644. Duquette v. Wisconsin. Ct. App. Wis. Cer- tiorari denied. Reported below: 198 Wis. 2d 386, 542 N. W. 2d 237. No. 95­8646. Yarnell v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 465. No. 95­8648. Justice v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 70 F. 3d 1275. No. 95­8650. Atkinson v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 464. No. 95­879. City of Edmond et al. v. Robinson et al. C. A. 10th Cir. Certiorari denied. Reported below: 68 F. 3d 1226. Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas join, dissenting. I dissent from the denial of certiorari. Petitioners identify a division between the Courts of Appeals about whether a city violates the First Amendment when its seal includes as one com- ponent a religious symbol, in particular a Latin cross. Compare 68 F. 3d 1226 (CA10 1995) and Harris v. City of Zion, 927 F. 2d 1401 (CA7 1991) (finding an Establishment Clause violation), with Murray v. City of Austin, 947 F. 2d 147 (CA5 1991) (finding no violation), cert. denied sub nom. Derden v. McNeel, 508 U. S. 960 (1992). Their petition also suggests-though it does not expressly raise-a serious question about respondents' standing to press their First Amendment claim. The Court of Appeals observed that neither party disputed respondents' standing, but correctly observed that "[s]tanding" 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1202 OCTOBER TERM, 1995 Rehnquist, C. J., dissenting 517 U. S. was always necessary. 68 F. 3d, at 1229, n. 6. Last Term, we pointed out that "[t]he question of standing is not subject to waiver: `We are required to address the issue even if the courts below have not passed on it, and even if the parties fail to raise the issue before us.' " United States v. Hays, 515 U. S. 737, 742 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U. S. 215, 230­231 (1990)) (citation omitted). The Court of Appeals noted respondents had standing under its decision in Foremaster v. City of St. George, 882 F. 2d 1485, 1490 (CA10 1989), cert. denied, 495 U. S. 910 (1990). 68 F. 3d, at 1229, n. 6. In Foremaster, the Court of Appeals inquired whether a plaintiff challenging a city logo containing a depiction of the local Mormon temple alleged a direct injury when he alleged that he was "confronted by the logo on a daily basis." 882 F. 2d, at 1491. Reviewing our decision in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 (1982), the court held that "an allegation of direct personal contact with the offensive action alone" alleged a direct injury, and that it was not necessary for a plaintiff to allege also that "he has altered his behavior as a consequence" of the offen- sive action. 882 F. 2d, at 1490. The only factual statement as to what injury respondents in the present case might have suffered is that "[p]laintiffs are non- Christians who live or work in Edmond." 68 F. 3d, at 1228. Mere presence in the city, without further allegations as to injury, quite clearly fails to meet the standing requirements laid down in cases such as Valley Forge. There, we said: "Although respondents claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological con- sequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III . . . ." 454 U. S., at 485. The Foremaster court acknowledged that there was disagree- ment among the Courts of Appeals about whether Valley Forge allowed standing to a plaintiff alleging direct injury by being exposed to a state symbol that offends his beliefs. 882 F. 2d, at 1490; see also Freedom From Religion v. Zielke, 845 F. 2d 1463 (CA7 1988) (finding this allegation insufficient); Saladin v. City of 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1203 517 U. S. May 13, 1996 Milledgeville, 812 F. 2d 687 (CA11 1987); Hawley v. City of Cleve- land, 773 F. 2d 736 (CA6 1985) (finding it sufficient), cert. denied, 475 U. S. 1047 (1986). Because there are serious arguments on both sides of this question, the Courts of Appeals have divided on the issue, and the issue determines the reach of federal courts' power of judicial review of state actions, I would take this oppor- tunity to consider it. For these reasons, I would grant the petition for certiorari and request the parties to address the additional question whether respondents showed an injury in fact sufficient to give them standing to raise their claim of violation of the Establishment Clause of the First Amendment. No. 95­1273. Rockefeller et al. v. Powers et al.; and No. 95­1468. Powers et al. v. Rockefeller et al. C. A. 2d Cir. Motion of William Powers et al. to defer consideration of petitions for writs of certiorari denied. Certiorari denied. Reported below: 74 F. 3d 1367. No. 95­1284. Norwest Corp., fka Northwest Bancorpora- tion, et al. v. Commissioner of Internal Revenue. C. A. 8th Cir. Certiorari denied. Justice Breyer took no part in the consideration or decision of this petition. Reported below: 69 F. 3d 1404. No. 95­1438. Curry v. E-Systems, Inc. C. A. 4th Cir. Cer- tiorari denied. Justice Breyer took no part in the consider- ation or decision of this petition. Reported below: 72 F. 3d 126. No. 95­1407. Maryland v. Gadson. Ct. App. Md. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 341 Md. 1, 668 A. 2d 22. No. 95­1431. Midwest Motor Express, Inc., et al. v. Cen- tral States, Southeast and Southwest Areas Pension Fund. C. A. 8th Cir. Motion of Regular Common Carrier Con- ference for leave to file a brief as amicus curiae granted. Certio- rari denied. Reported below: 70 F. 3d 1014. No. 95­1467. Pillsbury Co., Inc. v. Port of Corpus Christi Authority. C. A. 5th Cir. Motion of Port of Houston Authority for leave to file a brief as amicus curiae granted. Cer- tiorari denied. Reported below: 66 F. 3d 103. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1204 OCTOBER TERM, 1995 May 13, 1996 517 U. S. No. 95­1556 (A­825). Califorrniaa v. Clinton, President of the United States. C. A. 9th Cir. Application for stay, addressed to Justice Breyer and referred to the Court, denied. Certiorari before judgment denied. No. 95­1566. Crane Vessel Titan 5, in Rem and Its Claimant, Far Eastern Marine Exploration Drilling Co. v. Entron, Ltd., et al. C. A. 5th Cir. Motions of Chernomor- neftegaz and Maritime Law Association of the United States for leave to file briefs as amici curiae granted. Certiorari denied. Reported below: 70 F. 3d 1269. No. 95­7782. Lewis v. Federal Deposit Insurance Corpo- ration. C. A. 8th Cir. Motion of petitioner to amend petition for writ of certiorari denied. Certiorari denied. Rehearing Denied No. 95­1031. Ghent v. Equal Employment Opportunity Commission et al., 516 U. S. 1172; No. 95­1213. Deloatch v. Hughes, ante, p. 1120; No. 95­1252. Mates v. Occupational Safety and Health Administration et al., ante, p. 1105; No. 95­6375. Pourzandvakil v. Humphrey, Attorney Gen- eral of Minnesota, et al., 516 U. S. 1051; No. 95­7083. Blackston v. Reno, Attorney General of the United States, et al., 516 U. S. 1125; No. 95­7222. Gorman v. McAninch, Warden, ante, p. 1106; No. 95­7252. Lawson v. Chater, Commissioner of Social Security, ante, p. 1106; No. 95­7322. Echols v. American Fork Investors et al., 516 U. S. 1161; No. 95­7373. Guest v. Illinois, 516 U. S. 1176; No. 95­7417. Arteaga v. United States Court of Appeals for the Ninth Circuit, 516 U. S. 1177; No. 95­7464. Strowski v. Bank of America, ante, p. 1106; No. 95­7469. Gumm v. Ohio, 516 U. S. 1177; No. 95­7478. Rodriguez v. Wolf, Judge, District Court of Appeal of Florida, First District, et al., 516 U. S. 1178; No. 95­7496. Covillion v. New Hampshire et al., 516 U. S. 1178; No. 95­7522. Watkis v. West, Secretary of the Army, et al., 516 U. S. 1149; 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1205 517 U. S. May 13, 14, 1996 No. 95­7538. In re Lorenz, 516 U. S. 1170; No. 95­7564. Smiddy v. Singletary, Secretary, Florida Department of Corrections, ante, p. 1107; No. 95­7605. Nuss v. Office of Personnel Management, 516 U. S. 1163; No. 95­7638. Bennett v. Texas, ante, p. 1109; No. 95­7658. Ramey v. Ashland Oil, Inc., ante, p. 1109; No. 95­7712. Sherman v. Johnson, Director, Texas De- partment of Criminal Justice, Institutional Division, 516 U. S. 1180; No. 95­7714. Rodriguez v. Florida, ante, p. 1123; No. 95­7722. Johnson v. Welby et al., 516 U. S. 1180; No. 95­7772. Smith v. Richardson, Commissioner of Inter- nal Revenue, 516 U. S. 1180; No. 95­7785. Jackson v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division, ante, p. 1124; No. 95­7789. Sudranski v. Brown, Secretary of Veterans Affairs, ante, p. 1110; No. 95­7878. Stephens v. Cain, Warden, ante, p. 1143; No. 95­7881. Guzman Zayas v. Brown, Secretary of Vet- erans Affairs, ante, p. 1124; No. 95­7934. Wallace v. Smith, Warden, et al., 516 U. S. 1183; No. 95­8120. Bergmann v. McCaughtry, Warden, ante, p. 1126; and No. 95­8164. Tamakloe v. United States, ante, p. 1127. Pe- titions for rehearing denied. No. 95­7637. McDonald v. Johnson, Director, Texas De- partment of Criminal Justice, Institutional Division, 516 U. S. 1179. Motion for leave to file petition for rehearing denied. May 14, 1996 Dismissal Under Rule 46 No. 95­638. Bankers Trust Co. v. Procter & Gamble Co. C. A. 6th Cir. Certiorari dismissed under this Court's Rule 46.1. Reported below: 61 F. 3d 465. 517ORD$$2v 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1206 OCTOBER TERM, 1995 517 U. S. May 20, 1996 Certiorari Granted-Vacated and Remanded No. 94­1247. Hospitality Investments of Philadelphia, Inc. v. Pennsylvania State Police, Bureau of Liquor Con- trol Enforcement; Nighttime Concepts, Inc. v. Pennsylva- nia State Police, Bureau of Liquor Control Enforcement; and Hospitality Investments of Philadelphia, Inc. v. Penn- sylvania State Police, Bureau of Liquor Control En- forcement. Sup. Ct. Pa. Certiorari granted, judgments va- cated, and case remanded for further consideration in light of 44 Liquormart, Inc. v. Rhode Island, ante, p. 484. Reported below: 539 Pa. 108, 650 A. 2d 854 (first judgment); 539 Pa. 123, 650 A. 2d 861 (second judgment); 539 Pa. 125, 650 A. 2d 862 (third judgment). No. 95­685. Anheuser-Busch, Inc., et al. v. Schmoke, Mayor of Baltimore City, et al. C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded for further consid- eration in light of 44 Liquormart, Inc. v. Rhode Island, ante, p. 484. Reported below: 63 F. 3d 1305. No. 95­1531. St. Ledger et al. v. Kentucky Revenue Cab- inet et al. Sup. Ct. Ky. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Fulton Corp. v. Faulkner, 516 U. S. 325 (1996). Reported below: 912 S. W. 2d 34. Miscellaneous Orders No. A­874. Troni et ux. v. NYNEX et al. Bkrtcy. Ct. S. D. N. Y. Application for stay, addressed to The Chief Justice and referred to the Court, denied. No. A­892. In re Troni et ux. Bkrtcy. Ct. S. D. N. Y. Ap- plication for stay, addressed to The Chief Justice and referred to the Court, denied. No. D­1643. In re Disbarment of Stanley. Disbarment entered. [For earlier order herein, see 516 U. S. 1107.] No. D­1653. In re Disbarment of Bastine. Disbarment entered. [For earlier order herein, see 516 U. S. 1108.] 517ORD$$2w 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1207 517 U. S. May 20, 1996 No. D­1658. In re Disbarment of Bruckner. Disbarment entered. [For earlier order herein, see 516 U. S. 1169.] No. D­1661. In re Disbarment of Reeves. Disbarment entered. [For earlier order herein, see 516 U. S. 1170.] No. D­1681. In re Disbarment of Biederman. David Ar- nold Biederman, of Clifton, N. J., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. M­60. Morgan v. United States. Motion to direct the Clerk to file petition for writ of certiorari out of time denied. No. 84, Orig. United States v. Alaska. Report of the Spe- cial Master received and ordered filed. Exceptions to the Report, with supporting briefs, not to exceed 75 pages, may be filed within 75 days. Replies, if any, not to exceed 75 pages, may be filed within 60 days after receipt of the other party's exceptions. Sur- reply briefs, if any, not to exceed 30 pages, may be filed within 30 days after receipt of the other party's reply. [For earlier order herein, see, e. g., 474 U. S. 1044.] No. 95­8730. In re Greene; No. 95­8754. In re Randall; and No. 95­8804. In re Cayton. Petitions for writs of habeas corpus denied. No. 95­8479. In re Tucker. Petition for writ of mandamus denied. No. 95­8625. In re Crowder. Petition for writ of mandamus and/or prohibition denied. Probable Jurisdiction Noted No. 95­1425. Abrams et al. v. Johnson et al.; and No. 95­1460. United States v. Johnson et al. Appeals from D. C. S. D. Ga. Probable jurisdiction noted, cases consoli- dated, and a total of one hour allotted for oral argument. Re- ported below: 922 F. Supp. 1556. Certiorari Denied No. 95­946. Baldassaro v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 64 F. 3d 206. 517ORD$$2w 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1208 OCTOBER TERM, 1995 May 20, 1996 517 U. S. No. 95­1129. Red Lake Band of Chippewa Indians et al. v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 62 F. 3d 1421. No. 95­1145. Diaz v. Department of the Air Force. C. A. Fed. Cir. Certiorari denied. Reported below: 63 F. 3d 1107. No. 95­1155. Schusterman et ux. v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 63 F. 3d 986. No. 95­1293. Target Sportswear, Inc. v. United States. C. A. Fed. Cir. Certiorari denied. Reported below: 70 F. 3d 604. No. 95­1308. V­1 Oil Co., Inc., dba V­1 Propane v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 63 F. 3d 909. No. 95­1319. Hughes & Luce et al. v. Commissioner of Internal Revenue. C. A. 5th Cir. Certiorari denied. Re- ported below: 70 F. 3d 16. No. 95­1400. Carter et al. v. Helmsley-Spear, Inc., et al. C. A. 2d Cir. Certiorari denied. Reported below: 71 F. 3d 77. No. 95­1484. Amphitheater Public Schools et al. v. Ait- ken. Sup. Ct. Ariz. Certiorari denied. Reported below: 183 Ariz. 387, 904 P. 2d 456. No. 95­1489. Goddard v. Kansas Director of Taxation on Assessment of Marijuana and Controlled Substances Tax. Ct. App. Kan. Certiorari denied. No. 95­1494. Stanley v. California. Sup. Ct. Cal. Certio- rari denied. Reported below: 10 Cal. 4th 764, 897 P. 2d 481. No. 95­1495. Berkeley v. Home Insurance Co. C. A. D. C. Cir. Certiorari denied. Reported below: 68 F. 3d 1409. No. 95­1501. King v. Clayton County Commission et al. C. A. 11th Cir. Certiorari denied. Reported below: 66 F. 3d 342. No. 95­1505. Bass, Surviving Spouse of Bass, Deceased, et al. v. National Super Markets, Inc. Sup. Ct. Mo. Cer- tiorari denied. Reported below: 911 S. W. 2d 617. 517ORD$$2w 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1209 517 U. S. May 20, 1996 No. 95­1507. Iadarola v. New York (two judgments). App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported below: 222 App. Div. 2d 454, 634 N. Y. S. 2d 738. No. 95­1510. Cassity, dba C & B Trucking v. Kentucky Transportation Cabinet. Sup. Ct. Ky. Certiorari denied. Reported below: 912 S. W. 2d 48. No. 95­1511. Kemmerer et al. v. ICI Americas, Inc. C. A. 3d Cir. Certiorari denied. Reported below: 70 F. 3d 281. No. 95­1513. Martinez v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. No. 95­1515. Gerasolo et al. v. Adherence Group, Inc. C. A. 3d Cir. Certiorari denied. Reported below: 72 F. 3d 371. No. 95­1522. De Los Santos v. Cambridge Tankers, Inc. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 95­1526. Springer v. City of Bend. C. A. 9th Cir. Certiorari denied. Reported below: 65 F. 3d 176. No. 95­1527. Haney, by Next Friend, Guardian of His Property, Haney, et al. v. City of Cumming et al. C. A. 11th Cir. Certiorari denied. Reported below: 69 F. 3d 1098. No. 95­1529. Voigt v. Savell et al. C. A. 9th Cir. Certio- rari denied. Reported below: 70 F. 3d 1552. No. 95­1535. Newton v. Board to Determine Fitness of Bar Applicants, Supreme Court of Georgia. Sup. Ct. Ga. Certiorari denied. No. 95­1537. Brobston v. Insulation Corporation of America. C. A. 3d Cir. Certiorari denied. Reported below: 74 F. 3d 1225. No. 95­1543. Campbell v. Texas. Ct. App. Tex., 1st Dist. Certiorari denied. No. 95­1551. Hinchliffe et ux. v. Federal Home Loan Mortgage Corporation et al. C. A. 3d Cir. Certiorari de- nied. Reported below: 77 F. 3d 462. No. 95­1552. Aronson v. Brown, Secretary of Veterans Affairs, et al. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 677. 517ORD$$2w 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1210 OCTOBER TERM, 1995 May 20, 1996 517 U. S. No. 95­1555. Connor v. Flynn. Sup. Ct. N. J. Certiorari denied. Reported below: 142 N. J. 440, 663 A. 2d 1350. No. 95­1561. Kobayashi v. Nakamura. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­1565. Carson v. Waterfront Commission of New York Harbor. C. A. 3d Cir. Certiorari denied. Reported below: 73 F. 3d 24. No. 95­1578. Kelly v. Penson. Dist. Ct. App. Fla., 1st Dist. Certiorari denied. Reported below: 661 So. 2d 1238. No. 95­1584. CSX Transportation, Inc. v. Castro. Ct. Sp. App. Md. Certiorari denied. Reported below: 106 Md. App. 770. No. 95­1587. Moretti v. City of Hackensack. Super. Ct. N. J., App. Div. Certiorari denied. No. 95­1589. Hall et ux. v. Indiana Department of Reve- nue et al. Sup. Ct. Ind. Certiorari denied. Reported below: 660 N. E. 2d 319. No. 95­1607. Willis v. Georgia Department of Public Safety et al. Ct. App. Ga. Certiorari denied. Reported below: 218 Ga. App. 541, 462 S. E. 2d 386. No. 95­1616. Eames et ux. v. Small Business Administra- tion. C. A. 5th Cir. Certiorari denied. Reported below: 74 F. 3d 1236. No. 95­1629. Clement v. Florida Bar. Sup. Ct. Fla. Cer- tiorari denied. Reported below: 662 So. 2d 690. No. 95­1657. Davis v. United States. C. A. 10th Cir. Cer- tiorari denied. Reported below: 60 F. 3d 1479. No. 95­1658. Bartley v. Thompson, Governor of Wiscon- sin. Ct. App. Wis. Certiorari denied. Reported below: 198 Wis. 2d 323, 542 N. W. 2d 227. No. 95­1664. Heller v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 27 F. 3d 559. No. 95­1678. Schutterle v. United States et al. C. A. 8th Cir. Certiorari denied. Reported below: 74 F. 3d 846. 517ORD$$2w 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1211 517 U. S. May 20, 1996 No. 95­1692. Shaw v. United States. C. A. 3d Cir. Certio- rari denied. Reported below: 77 F. 3d 465. No. 95­1704. Gray v. United States. C. A. 4th Cir. Cer- tiorari denied. No. 95­1706. Sever v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1258. No. 95­1713. Gaylor et al. v. United States et al. C. A. 10th Cir. Certiorari denied. Reported below: 74 F. 3d 214. No. 95­1718. Claassen v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 69 F. 3d 550. No. 95­6304. Marshall v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 56 F. 3d 1210. No. 95­7022. Capers et al. v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 61 F. 3d 1100. No. 95­7236. Lee v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Reported below: 541 Pa. 260, 662 A. 2d 645. No. 95­7952. Amey v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1273. No. 95­7962. Pope v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 58 F. 3d 1567. No. 95­8082. Cudal v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 674. No. 95­8138. Paje v. Office of Personnel Management. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 674. No. 95­8143. Sandoval v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 674. No. 95­8153. Burt v. Illinois. Sup. Ct. Ill. Certiorari de- nied. Reported below: 168 Ill. 2d 49, 658 N. E. 2d 375. No. 95­8224. De Guzman v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 674. 517ORD$$2w 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1212 OCTOBER TERM, 1995 May 20, 1996 517 U. S. No. 95­8282. Aleali v. Merkle, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 73 F. 3d 368. No. 95­8283. Crawley v. Pennsylvania. Sup. Ct. Pa. Cer- tiorari denied. Reported below: 541 Pa. 408, 663 A. 2d 676. No. 95­8297. Faunce v. White, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 62 F. 3d 1424. No. 95­8302. Helms v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 95­8303. Derryberry v. Cain, Warden. C. A. 5th Cir. Certiorari denied. No. 95­8305. Fabian v. Shade. Sup. Ct. Fla. Certiorari denied. Reported below: 669 So. 2d 250. No. 95­8307. Funai v. Frisoli. Super. Ct. Mass., Middlesex County. Certiorari denied. No. 95­8309. Jedrzejewski v. Menacker. Ct. Sp. App. Md. Certiorari denied. Reported below: 105 Md. App. 799. No. 95­8314. Jacques v. Rhode Island. Sup. Ct. R. I. Cer- tiorari denied. Reported below: 669 A. 2d 1124. No. 95­8316. Stitt v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. No. 95­8317. McNelton v. Nevada. Sup. Ct. Nev. Certio- rari denied. Reported below: 111 Nev. 900, 900 P. 2d 934. No. 95­8320. Buc-Hanan v. California. Sup. Ct. Cal. Certiorari denied. No. 95­8322. Treadway v. California et al. C. A. 9th Cir. Certiorari denied. No. 95­8327. McGeshick v. Choucair et al. C. A. 7th Cir. Certiorari denied. Reported below: 72 F. 3d 62. No. 95­8329. Simpson, as Next Friend to Tony L. et al. v. Childers et al. C. A. 6th Cir. Certiorari denied. Reported below: 71 F. 3d 1182. 517ORD$$2w 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1213 517 U. S. May 20, 1996 No. 95­8332. Miller v. AmSouth Bancorporation, N. A. C. A. 11th Cir. Certiorari denied. Reported below: 71 F. 3d 882. No. 95­8334. Shabazz v. Parsons et al. C. A. 10th Cir. Certiorari denied. Reported below: 73 F. 3d 374. No. 95­8336. Vrba v. Milton S. Katz & Associates et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­8337. Madden v. Savage et al. C. A. 9th Cir. Cer- tiorari denied. No. 95­8338. Bruellisauer v. Colorado. Ct. App. Colo. Certiorari denied. No. 95­8340. Miller v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. No. 95­8342. Phillips v. Ohio. Sup. Ct. Ohio. Certiorari denied. Reported below: 74 Ohio St. 3d 72, 656 N. E. 2d 643. No. 95­8344. Britt v. Wells et al. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 95­8349. Smith v. Pittsburgh Police Department et al. C. A. 3d Cir. Certiorari denied. No. 95­8351. Thornbrugh v. Brett, Judge, United States District Court for the Northern District of Oklahoma, et al. C. A. 10th Cir. Certiorari denied. Reported below: 69 F. 3d 548. No. 95­8354. Crooms v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. No. 95­8356. Gold v. Morrison-Knudsen Co. et al. C. A. 2d Cir. Certiorari denied. Reported below: 68 F. 3d 1475. No. 95­8358. Depperman v. Local 1199, Drug, Hospital and Health Care Employees Union, et al. C. A. 2d Cir. Certiorari denied. No. 95­8362. Hernandez v. Van Oss, Judge, Superior Court of California, San Joaquin County, et al. C. A. 9th Cir. Certiorari denied. 517ORD$$2w 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) 1214 OCTOBER TERM, 1995 May 20, 1996 517 U. S. No. 95­8379. Weber v. Wood, Commissioner, Minnesota Department of Corrections. C. A. 8th Cir. Certiorari de- nied. Reported below: 73 F. 3d 366. No. 95­8382. Tracy v. Chief of the National Guard Bu- reau et al. C. A. 6th Cir. Certiorari denied. Reported below: 76 F. 3d 380. No. 95­8385. Brooks v. Wichita Falls State Hospital. C. A. 5th Cir. Certiorari denied. No. 95­8393. Mills v. Singletary, Secretary, Florida De- partment of Corrections. C. A. 11th Cir. Certiorari denied. Reported below: 63 F. 3d 999. No. 95­8416. Nave v. Bowersox, Superintendent, Potosi Correctional Center. C. A. 8th Cir. Certiorari denied. Reported below: 62 F. 3d 1024. No. 95­8421. Jackson v. Ohio. Ct. App. Ohio, Cuyahoga County. Certiorari denied. No. 95­8435. Wornum v. Massachusetts. Sup. Jud. Ct. Mass. Certiorari denied. Reported below: 421 Mass. 220, 656 N. E. 2d 579. No. 95­8468. Cooper v. Connecticut. App. Ct. Conn. Cer- tiorari denied. Reported below: 38 Conn. App. 661, 664 A. 2d 773. No. 95­8505. Abbott v. Oregon. Ct. App. Ore. Certiorari denied. Reported below: 136 Ore. App. 547, 901 P. 2d 268. No. 95­8528. Slaton v. Miller, Superintendent, Correc- tional Industrial Complex, Pendleton, Indiana. C. A. 7th Cir. Certiorari denied. Reported below: 77 F. 3d 484. No. 95­8554. McClelland v. Johnson, Director, Texas Department of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. No. 95­8605. Sanchez v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 75 F. 3d 603. No. 95­8616. Delgado v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 464. 517ORD$$2w 01-05-99 18:33:17 PGT*ORDBV (Bound Volume) ORDERS 1215 517 U. S. May 20, 1996 No. 95­8617. Gonzalez v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 1236. No. 95­8618. David v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 78 F. 3d 579. No. 95­8624. Abdullah v. Groose, Superintendent, Jef- ferson City Correctional Center. C. A. 8th Cir. Certio- rari denied. Reported below: 75 F. 3d 408. No. 95­8627. Hope v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 87. No. 95­8635. Schwarz v. Patent and Trademark Office. C. A. D. C. Cir. Certiorari denied. Reported below: 80 F. 3d 558. No. 95­8661. Howard v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 76 F. 3d 389. No. 95­8663. Mattos v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 74 F. 3d 1197. No. 95­8667. Ciapponi v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 77 F. 3d 1247. No. 95­8670. Truesdale v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 78 F. 3d 580. No. 95­8673. Huffman v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 74 F. 3d 1247. No. 95­8679. Rourke v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 74 F. 3d 802. No. 95­8683. Burks v. United States. C. A. 8th Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1244. No. 95­8684. Chambers v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 73 F. 3d 359. No. 95­8685. Shaffer v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 480. No. 95­8689. Butterfly v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 136. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1216 OCTOBER TERM, 1995 May 20, 28, 1996 517 U. S. No. 95­8695. Smith v. Kuhlmann, Superintendent, Sulli- van Correctional Facility. C. A. 2d Cir. Certiorari denied. No. 95­8708. Malone v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 70 F. 3d 1276. No. 95­8715. Aguirre v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 100 F. 3d 942. No. 95­1244. Ruvalcaba v. City of Los Angeles et al. C. A. 9th Cir. Motion of Police Misconduct Lawyers Referral Service for leave to file a brief as amicus curiae granted. Certio- rari denied. Reported below: 64 F. 3d 1323. No. 95­1329. Mock et ux. v. Pennsylvania Department of Environmental Resources. Sup. Ct. Pa. Motions of Wash- ington Legal Foundation et al. and Pacific Legal Foundation for leave to file briefs as amici curiae granted. Certiorari denied. Reported below: 542 Pa. 357, 667 A. 2d 212. No. 95­1514. California et al. v. Federal Communica- tions Commission et al. C. A. 9th Cir. Certiorari denied. Justice O'Connor took no part in the consideration or decision of this petition. Reported below: 75 F. 3d 1350. Rehearing Denied No. 95­887. Waymer v. United States, ante, p. 1119; No. 95­1123. Godby v. Electrolux Corp., ante, p. 1120; No. 95­1296. Talley v. Flathead Valley Community Col- lege et al., ante, p. 1121; No. 95­7824. Banks v. California et al., ante, p. 1142; No. 95­7868. Burley v. McDonnell Douglas Helicopter Co., ante, p. 1143; and No. 95­8003. Sartin v. Virginia et al., ante, p. 1125. Peti- tions for rehearing denied. May 28, 1996 Certiorari Granted-Vacated and Remanded No. 94­1838. OXY USA Inc. v. Continental Trend Re- sources, Inc., et al. C. A. 10th Cir. Certiorari granted, judg- ment vacated, and case remanded for further consideration in 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1217 517 U. S. May 28, 1996 light of BMW of North America, Inc. v. Gore, ante, p. 559. Re- ported below: 44 F. 3d 1465. No. 95­771. Ford Motor Co. v. Sperau et al. Sup. Ct. Ala. Motion of Business Council of Alabama for leave to file a brief as amicus curiae granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of BMW of North America, Inc. v. Gore, ante, p. 559. Reported below: 674 So. 2d 24. No. 95­1072. Combustion Engineering, Inc. v. Johansen et al. C. A. 11th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of BMW of North America, Inc. v. Gore, ante, p. 559. Reported below: 67 F. 3d 314. No. 95­1414. Apache Corp. v. Moore et al. Ct. App. Tex., 7th Dist. Certiorari granted, judgment vacated, and case re- manded for further consideration in light of BMW of North America, Inc. v. Gore, ante, p. 559. Reported below: 891 S. W. 2d 671. No. 95­8396. Peeples v. United States. C. A. 7th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case re- manded for further consideration in light of Bailey v. United States, 516 U. S. 137 (1995). Reported below: 70 F. 3d 1275. Miscellaneous Orders No. D­1682. In re Disbarment of Bramhall. Richard Ar- thur Bramhall, Jr., of York, Pa., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1683. In re Disbarment of Clinard. William Faulkner Clinard, of Germantown, Ohio, is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1684. In re Disbarment of Bloomfield. Gerald R. Bloomfield, of Albuquerque, N. M., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1218 OCTOBER TERM, 1995 May 28, 1996 517 U. S. days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1685. In re Disbarment of Reilly. Paul G. Reilly, Jr., of New York, N. Y., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, re- quiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1686. In re Disbarment of Jones. Lester V. Jones, of Hydes, Md., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. M­63. Levario v. State Bar of Texas et al. Motion to direct the Clerk to file jurisdictional statement and for trans- fer denied. No. 95­728. Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co. C. A. Fed. Cir. [Certiorari granted, 516 U. S. 1145.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted to be divided as follows: 25 minutes, petitioner; 25 min- utes, respondent; 10 minutes, the Solicitor General. No. 95­992. Turner Broadcasting System, Inc., et al. v. Federal Communications Commission et al. D. C. D. C. [Probable jurisdiction noted, 516 U. S. 1110.] Motion of the Solici- tor General for divided argument granted. No. 95­1340. Hughes Aircraft Co. v. United States ex rel. Schumer. C. A. 9th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States. No. 95­7894. Shieh v. Hathaway et al. C. A. 9th Cir.; and No. 95­7895. Shieh v. Ebershoff et al. C. A. 9th Cir. Motions of petitioner for reconsideration of order denying leave to proceed in forma pauperis [ante, p. 1132] denied. No. 95­8836 (A­890). Felker v. Turpin, Warden. C. A. 11th Cir. [Certiorari granted, ante, p. 1182.] Motion of the So- licitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1219 517 U. S. May 28, 1996 No. 95­8796. In re Sisk. Petition for writ of habeas corpus denied. No. 95­8387. In re Spellman; and No. 95­8453. In re James. Petitions for writs of mandamus denied. No. 95­8448. In re Flynn; and No. 95­8454. In re Maxwell. Petitions for writs of prohibi- tion denied. Certiorari Granted No. 95­1181. Dunn et al. v. Commodity Futures Trading Commission et al. C. A. 2d Cir. Certiorari granted. Re- ported below: 58 F. 3d 50. No. 95­1608. McKenna, Director, Ramsey County De- partment of Property Records and Revenue, et al. v. Twin Cities Area New Party. C. A. 8th Cir. Certiorari granted. Reported below: 73 F. 3d 196. No. 95­1598. Young et al. v. Harper. C. A. 10th Cir. Mo- tion of respondent for leave to proceed in forma pauperis granted. Certiorari granted. Reported below: 64 F. 3d 563. Certiorari Denied No. 94­1230. Fraidin v. Weitzman et al. Ct. Sp. App. Md. Certiorari denied. Reported below: 99 Md. App. 747. No. 94­1337. Liberty Mutual Insurance Co. v. Chemstar, Inc., et al. (three judgments). C. A. 9th Cir. Certiorari de- nied. Reported below: 41 F. 3d 429 (first judgment); 42 F. 3d 1398 (second judgment) and 1399 (third judgment). No. 94­1890. Honda Motor Co., Ltd., et al. v. Oberg. Sup. Ct. Ore. Certiorari denied. Reported below: 320 Ore. 544, 888 P. 2d 8. No. 95­433. Wolfberg et ux. v. Greenberg. C. A. 10th Cir. Certiorari denied. Reported below: 54 F. 3d 787. No. 95­563. Construction and Laborers' Union Local No. 324 et al. v. Murray. C. A. 9th Cir. Certiorari denied. Reported below: 55 F. 3d 1445. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1220 OCTOBER TERM, 1995 May 28, 1996 517 U. S. No. 95­1297. Pierce v. Iowa-Missouri Conference of Seventh-day Adventists. Sup. Ct. Iowa. Certiorari denied. Reported below: 534 N. W. 2d 425. No. 95­1310. Israel Travel Advisory Service, Inc. v. Is- rael Identity Tours, Inc., et al. C. A. 7th Cir. Certiorari denied. Reported below: 61 F. 3d 1250. No. 95­1330. American Steamship Co. v. Cleveland Tank- ers, Inc., et al. C. A. 6th Cir. Certiorari denied. Reported below: 67 F. 3d 1200. No. 95­1341. Robinson v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 62 F. 3d 1325. No. 95­1353. Fort Sumter Tours, Inc. v. Babbitt, Secre- tary of the Interior. C. A. 4th Cir. Certiorari denied. Re- ported below: 66 F. 3d 1324. No. 95­1359. Maryboy v. Utah State Tax Commission et al. Sup. Ct. Utah. Certiorari denied. Reported below: 904 P. 2d 662. No. 95­1363. Mosier, Trustee v. Kroger Co. C. A. 9th Cir. Certiorari denied. Reported below: 65 F. 3d 778. No. 95­1417. Kane et vir v. Magna Mixer Co. et al.; and No. 95­1610. Magna Mixer Co. et al. v. Kane et vir. C. A. 6th Cir. Certiorari denied. Reported below: 71 F. 3d 555. No. 95­1420. Philip Morris Inc. v. Commissioner of Inter- nal Revenue. C. A. 2d Cir. Certiorari denied. Reported below: 71 F. 3d 1040. No. 95­1448. Nernberg v. Ludmer. Super. Ct. Pa. Certio- rari denied. Reported below: 433 Pa. Super. 316, 640 A. 2d 939. No. 95­1477. Schulte et al. v. Smith, Administrator of the Estate of Smith, Deceased. Sup. Ct. Ala. Certiorari denied. Reported below: 671 So. 2d 1334. No. 95­1517. Indiana Department of Correction v. Sam- pley et al. C. A. 7th Cir. Certiorari denied. Reported below: 72 F. 3d 528. No. 95­1525. Foster, Sheriff, Newberry County, et al. v. Gilliam. C. A. 4th Cir. Certiorari denied. Reported below: 75 F. 3d 881. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1221 517 U. S. May 28, 1996 No. 95­1530. Glavey v. Dime Savings Bank of New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Re- ported below: 214 App. Div. 2d 419, 625 N. Y. S. 2d 181. No. 95­1532. Lindenmeier et al. v. Siemens Power Corp. et al. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 544. No. 95­1533. Moose Lodge #259 (Salt Lake City) et al. v. Department of Alcoholic Beverage Control. Sup. Ct. Utah. Certiorari denied. Reported below: 905 P. 2d 1189. No. 95­1539. Kittler et ux. v. Eckberg, Lammers, Briggs, Wolff & Vierling et al. Ct. App. Minn. Certiorari denied. Reported below: 535 N. W. 2d 653. No. 95­1540. Hoke et al. v. Bludworth et al. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 878 and 82 F. 3d 413. No. 95­1542. Cooper et al. v. Massachusetts Commis- sioner of Revenue. Sup. Jud. Ct. Mass. Certiorari denied. Reported below: 421 Mass. 557, 658 N. E. 2d 963. No. 95­1544. Burkhart et ux. v. Agostini. Sup. Ct. Del. Certiorari denied. Reported below: 670 A. 2d 1336. No. 95­1547. American Premier Underwriters, Inc. v. USX Corp. et al. C. A. 3d Cir. Certiorari denied. Reported below: 71 F. 3d 1113. No. 95­1554. Batts v. Tow-Motor Forklift Co. et al. C. A. 5th Cir. Certiorari denied. Reported below: 66 F. 3d 743. No. 95­1559. Hickam v. Connecticut. Sup. Ct. Conn. Cer- tiorari denied. Reported below: 235 Conn. 614, 668 A. 2d 1321. No. 95­1560. Crow Tribe of Indians et al. v. Repsis et al. C. A. 10th Cir. Certiorari denied. Reported below: 73 F. 3d 982. No. 95­1568. Veneman, Secretary, California Depart- ment of Food and Agriculture, et al. v. Pacific Merchant Shipping Assn. Sup. Ct. Cal. Certiorari denied. Reported below: 12 Cal. 4th 503, 907 P. 2d 430. No. 95­1574. Alton & Southern Railway Co. v. Edwards. App. Ct. Ill., 5th Dist. Certiorari denied. Reported below: 275 Ill. App. 3d 529, 656 N. E. 2d 208. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1222 OCTOBER TERM, 1995 May 28, 1996 517 U. S. No. 95­1583. Green et al. v. Pennsylvania Municipal Service Co. et al. Commw. Ct. Pa. Certiorari denied. Re- ported below: 661 A. 2d 44. No. 95­1586. Brown v. Campbell County Board of Edu- cation et al. Sup. Ct. Tenn. Certiorari denied. Reported below: 915 S. W. 2d 407. No. 95­1590. Gonzalez et al. v. Moises Luna and Associ- ates. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­1591. Neufeld v. City of Baltimore, Maryland, et al. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 1262. No. 95­1611. R. J. Reynolds Tobacco Co. et al. v. Minne- sota et al. Ct. App. Minn. Certiorari denied. No. 95­1615. Tamburello v. Comm-Tract Corp. et al. C. A. 1st Cir. Certiorari denied. Reported below: 67 F. 3d 973. No. 95­1626. Americanos v. Carter, Attorney General of Indiana, et al. C. A. 7th Cir. Certiorari denied. Re- ported below: 74 F. 3d 138. No. 95­1656. Taylor v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 121. No. 95­1661. Robert et al. v. Philadelphia Park et al. Sup. Ct. Pa. Certiorari denied. Reported below: 542 Pa. 355, 667 A. 2d 211. No. 95­1673. Spencer v. Spencer et al. C. A. 8th Cir. Certiorari denied. Reported below: 68 F. 3d 479. No. 95­1716. Great Falls Eye Surgery Center et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 75 F. 3d 470. No. 95­1740. Kotsias v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 274 Ill. App. 3d 1107, 691 N. E. 2d 1198. No. 95­1772. Musser v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 62 F. 3d 1425. No. 95­1776. McNeel et ux. v. Commissioner of Internal Revenue; Kurnik et ux. v. Commissioner of Internal Reve- 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1223 517 U. S. May 28, 1996 nue; and Pressley v. Commissioner of Internal Revenue. C. A. 9th Cir. Certiorari denied. Reported below: 76 F. 3d 387 (first judgment); 70 F. 3d 120 (second judgment) and 1279 (third judgment). No. 95­7660. Rosario v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 66 F. 3d 321. No. 95­7765. Antonelli v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 72 F. 3d 132. No. 95­7854. Juarez v. Lee et al. C. A. 10th Cir. Certio- rari denied. Reported below: 69 F. 3d 548. No. 95­8041. Palmisano v. Executive Committee, United States District Court for the Northern District of Illi- nois; and Palmisano v. Bilandic, Chief Justice, Supreme Court of Illinois, et al. C. A. 7th Cir. Certiorari denied. Reported below: 70 F. 3d 483 (first judgment); 73 F. 3d 364 (sec- ond judgment). No. 95­8092. Sever v. Bell Communications Research, aka Bellcore. C. A. 3d Cir. Certiorari denied. Reported below: 60 F. 3d 817. No. 95­8167. Hope v. Illinois. Sup. Ct. Ill. Certiorari de- nied. Reported below: 168 Ill. 2d 1, 658 N. E. 2d 391. No. 95­8365. Hernandez v. Starbuck, Superintendent, Wyoming Honor Farm, et al. C. A. 10th Cir. Certiorari de- nied. Reported below: 69 F. 3d 1089. No. 95­8373. Spychala v. Lewis, Warden, et al. C. A. 9th Cir. Certiorari denied. Reported below: 76 F. 3d 388. No. 95­8375. Sanborn v. Kentucky. Sup. Ct. Ky. Certio- rari denied. No. 95­8376. Rodenbaugh v. Leary. C. A. 3d Cir. Certio- rari denied. No. 95­8377. Prieto v. Crawford et al. C. A. 11th Cir. Certiorari denied. No. 95­8386. Strickland v. Crowe et al. C. A. 11th Cir. Certiorari denied. Reported below: 69 F. 3d 550. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1224 OCTOBER TERM, 1995 May 28, 1996 517 U. S. No. 95­8388. Slade v. New York. App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied. No. 95­8390. Chamberlin v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 95­8408. Dale v. Superior Court of California, County of San Luis Obispo, et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­8409. Dymits v. Center for Independence of the Disabled et al. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 95­8410. Francis v. Department of Commerce et al. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 477. No. 95­8412. Adams v. United States District Court for the Central District of California. C. A. 9th Cir. Certio- rari denied. No. 95­8414. Popke et al. v. Ohio Department of Reha- bilitation and Correction et al. C. A. 6th Cir. Certiorari denied. No. 95­8417. McQueen v. Mata et al. C. A. 5th Cir. Cer- tiorari denied. Reported below: 71 F. 3d 876. No. 95­8418. McQueen v. Turner et al. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 876. No. 95­8420. Moomchi v. University of New Mexico et al. C. A. 10th Cir. Certiorari denied. Reported below: 72 F. 3d 138. No. 95­8423. Johnson v. Gillis, Superintendent, State Correctional Institution at Coal Township, et al. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 462. No. 95­8425. Janneh v. The Regency et al. C. A. 2d Cir. Certiorari denied. No. 95­8426. Locke v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division, et al. C. A. 5th Cir. Certiorari denied. Reported below: 74 F. 3d 1237. No. 95­8427. Johnson v. Johnson, Director, Texas De- partment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1225 517 U. S. May 28, 1996 No. 95­8429. Stearns-Miller v. Ault et al. C. A. 11th Cir. Certiorari denied. No. 95­8430. Stearns-Miller v. Brown et al. C. A. 11th Cir. Certiorari denied. No. 95­8433. Artis v. Garraghty, Warden. C. A. 4th Cir. Certiorari denied. Reported below: 70 F. 3d 1260. No. 95­8436. Hentz v. Roberts, Superintendent, Missis- sippi State Penitentiary. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 1169. No. 95­8443. Carter v. North Carolina. Sup. Ct. N. C. Certiorari denied. Reported below: 342 N. C. 312, 464 S. E. 2d 272. No. 95­8445. Roussos v. Baxley. Ct. Sp. App. Md. Certio- rari denied. Reported below: 103 Md. App. 781. No. 95­8446. Roussos v. Felter. Cir. Ct. Montgomery County, Md. Certiorari denied. No. 95­8449. Flynn v. City of Garden City et al. C. A. 6th Cir. Certiorari denied. Reported below: 95 F. 3d 1152. No. 95­8450. Harvell v. Nagle, Warden, et al. C. A. 11th Cir. Certiorari denied. Reported below: 58 F. 3d 1541. No. 95­8452. Bal v. City of New York et al. C. A. 2d Cir. Certiorari denied. Reported below: 99 F. 3d 402. No. 95­8455. Nava v. United States Soccer Federation. Sup. Ct. Fla. Certiorari denied. Reported below: 662 So. 2d 932. No. 95­8457. Mattison v. Roach et al. C. A. 6th Cir. Cer- tiorari denied. No. 95­8459. Riggins v. Kasenow et al. C. A. 6th Cir. Certiorari denied. Reported below: 70 F. 3d 1273. No. 95­8461. Misch v. Washington. Sup. Ct. Wash. Certio- rari denied. Reported below: 127 Wash. 2d 1024, 904 P. 2d 1157. No. 95­8474. Levine v. United States et al. C. A. Fed. Cir. Certiorari denied. Reported below: 74 F. 3d 1260. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1226 OCTOBER TERM, 1995 May 28, 1996 517 U. S. No. 95­8484. Jim W. v. Margene L. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­8516. Kleinschmidt v. District Court of Appeal of Florida, First District, et al. Sup. Ct. Fla. Certiorari denied. Reported below: 663 So. 2d 630. No. 95­8522. Alvarez v. Office of Personnel Manage- ment. C. A. Fed. Cir. Certiorari denied. Reported below: 64 F. 3d 672. No. 95­8523. Dukes v. United States et al. C. A. 4th Cir. Certiorari denied. Reported below: 68 F. 3d 460. No. 95­8526. Hammond v. Lindler, Warden, et al. C. A. 4th Cir. Certiorari denied. Reported below: 74 F. 3d 1231. No. 95­8532. Schwarz v. United States Fidelity & Guar- anty Co. et al. Sup. Ct. Utah. Certiorari denied. No. 95­8547. Marsh v. Department of Veterans Affairs et al. C. A. 4th Cir. Certiorari denied. Reported below: 77 F. 3d 469. No. 95­8549. Bowen v. Arkansas. Sup. Ct. Ark. Certiorari denied. Reported below: 322 Ark. 483, 911 S. W. 2d 555. No. 95­8564. Hasa v. Nevada et al. C. A. 9th Cir. Certio- rari denied. No. 95­8586. McLaughlin v. Massachusetts. Sup. Jud. Ct. Mass. Certiorari denied. No. 95­8590. Barbee v. Pennsylvania Department of Corrections et al. C. A. 3d Cir. Certiorari denied. Re- ported below: 77 F. 3d 461. No. 95­8597. Scott v. Moyer, Chief Justice, Supreme Court of Ohio, et al. Sup. Ct. Ohio. Certiorari denied. Re- ported below: 74 Ohio St. 3d 1509, 659 N. E. 2d 1286. No. 95­8603. Privett v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 68 F. 3d 101. No. 95­8639. Hunter v. Boyd et al. C. A. 8th Cir. Certio- rari denied. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1227 517 U. S. May 28, 1996 No. 95­8642. Pringle v. Gillis, Superintendent, State Correctional Institution at Coal Township, et al. C. A. 3d Cir. Certiorari denied. Reported below: 82 F. 3d 406. No. 95­8649. Ayars v. New Jersey. Super. Ct. N. J., App. Div. Certiorari denied. No. 95­8657. Davis v. United States et al. C. A. 10th Cir. Certiorari denied. Reported below: 74 F. 3d 1248. No. 95­8669. Curley v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 74 F. 3d 1246. No. 95­8688. Harris v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 81 F. 3d 535. No. 95­8690. Tilli v. Van Antwerpen, Judge, United States District Court for the Eastern District of Penn- sylvania, et al. C. A. 3d Cir. Certiorari denied. No. 95­8700. Danger v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 68 F. 3d 485. No. 95­8701. Haynes v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 877. No. 95­8711. LaPierre v. Kincheloe, Superintendent, Spring Creek Correctional Center. C. A. 9th Cir. Certio- rari denied. Reported below: 74 F. 3d 1246. No. 95­8731. Branch v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 72 F. 3d 140. No. 95­8733. Hutching v. United States. C. A. 10th Cir. Certiorari denied. No. 95­8737. Shavers v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 465. No. 95­8738. Arias v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 74 F. 3d 1241. No. 95­8739. Castorena v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 1150. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1228 OCTOBER TERM, 1995 May 28, 1996 517 U. S. No. 95­8740. Corcoran v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 100 F. 3d 944. No. 95­8741. Williams v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 74 F. 3d 1229. No. 95­8751. Nock v. United States. C. A. 3d Cir. Certio- rari denied. Reported below: 77 F. 3d 465. No. 95­8752. Jennings v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 72 F. 3d 887. No. 95­8753. Medlock v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 77 F. 3d 497. No. 95­8755. Santana-Castellano v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 74 F. 3d 593. No. 95­8761. Lowe v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 76 F. 3d 389. No. 95­8764. Hudson v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 55 F. 3d 635. No. 95­8765. Dolloph v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 75 F. 3d 35. No. 95­8766. Akere v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 81 F. 3d 151. No. 95­8769. Campbell v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 77 F. 3d 477. No. 95­8776. Reese v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 902. No. 95­8777. Ellis v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 76 F. 3d 389. No. 95­8786. Miller v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 69 F. 3d 1109. No. 95­8788. Moore v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 73 F. 3d 666. No. 95­8792. Lopez v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 74 F. 3d 575. 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1229 517 U. S. May 28, 1996 No. 95­8794. Thomas v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 76 F. 3d 394. No. 95­8800. Burnette v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 76 F. 3d 376. No. 95­8801. Banks v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 76 F. 3d 389. No. 95­8805. Small v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 74 F. 3d 1276. No. 95­8806. Apa v. Sweeney, New York Commissioner of Labor. App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied. Reported below: 220 App. Div. 2d 916, 632 N. Y. S. 2d 326. No. 95­8808. Gooden v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 79 F. 3d 1139. No. 95­8815. Nelson v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 77 F. 3d 497. No. 95­8820. Chara v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 100 F. 3d 943. No. 95­8821. Abbas v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 74 F. 3d 506. No. 95­8822. Asrar v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 309. No. 95­8823. Clements v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 51 F. 3d 273. No. 95­8828. Nelson v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 77 F. 3d 465. No. 95­8839. Jackson v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 76 F. 3d 376. No. 95­1516. Ford Motor Co. v. Fulkerson et al. Ct. App. Ky. Motion of Product Liability Advisory Council, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied. No. 95­1576. Borawick v. Shay et ux. C. A. 2d Cir. Mo- tion of American Coalition for Abuse Awareness et al. for leave 517ORD$$3x 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1230 OCTOBER TERM, 1995 May 28, June 3, 1996 517 U. S. to file a brief as amici curiae granted. Certiorari denied. Re- ported below: 68 F. 3d 597. Rehearing Denied No. 90­5549. Votteler v. United States, 498 U. S. 1000; No. 95­508. Kearns v. Chrysler Corp. et al., 516 U. S. 989; No. 95­1276. Zolt et al. v. Bingham, Ancillary Adminis- trator of the Estate of Marley, et al., ante, p. 1134; No. 95­6847. Nadal v. United States, 516 U. S. 1122; No. 95­7569. Vargas v. Gunn, Warden, ante, p. 1107; No. 95­7600. Kowalski v. Oregon State Bar et al., ante, p. 1108; No. 95­7751. Bergmann v. McCollough, ante, p. 1141; No. 95­7856. Misek-Falkoff v. International Business Machines Corp., ante, p. 1111; No. 95­7861. In re Roy, ante, p. 1132; No. 95­7885. Estes v. Namba et al., ante, p. 1144; No. 95­7900. In re Robinson, 516 U. S. 1170; No. 95­7940. Robinson v. Meloy, Superintendent, Rock- ville Training Center, ante, p. 1158; No. 95­7956. Yates v. Godwin, ante, p. 1159; No. 95­8048. Akech v. United States, ante, p. 1125; No. 95­8064. Aguilar v. Newton, Warden, et al., ante, p. 1145; and No. 95­8200. Garner v. Ohio, ante, p. 1147. Petitions for rehearing denied. June 3, 1996 Dismissal Under Rule 46 No. 95­1321. Talbott, Individually, and as Administra- trix of the Estate of Beavers, et al. v. C. R. Bard, Inc., et al. C. A. 1st Cir. Certiorari dismissed under this Court's Rule 46. Reported below: 63 F. 3d 25. Certiorari Granted-Vacated and Remanded No. 95­740. Union Security Life Insurance Co. v. Crocker. Sup. Ct. Ala. Certiorari granted, judgment vacated, and case remanded for further consideration in light of BMW of North America, Inc. v. Gore, ante, p. 559. Reported below: 667 So. 2d 688. 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1231 517 U. S. June 3, 1996 No. 95­1325. American Pioneer Life Insurance Co. et al. v. Williamson. Sup. Ct. Ala. Certiorari granted, judgment va- cated, and case remanded for further consideration in light of BMW of North America, Inc. v. Gore, ante, p. 559. Reported below: 681 So. 2d 1040. No. 95­1491. United States v. D. F. C. A. 7th Cir. Certio- rari granted, judgment vacated, and case remanded for further consideration in light of Ornelas v. United States, ante, p. 690. Reported below: 63 F. 3d 671. No. 95­5845. Baldwin v. United States. C. A. 7th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case re- manded for further consideration in light of Ornelas v. United States, ante, p. 690. Reported below: 60 F. 3d 363. Miscellaneous Orders No. D­1662. In re Disbarment of Brinkley. Disbarment entered. [For earlier order herein, see ante, p. 1117.] No. D­1663. In re Disbarment of Seikel. Disbarment entered. [For earlier order herein, see ante, p. 1117.] No. D­1664. In re Disbarment of Seaman. Disbarment entered. [For earlier order herein, see ante, p. 1117.] No. D­1665. In re Disbarment of Micci. Disbarment en- tered. [For earlier order herein, see ante, p. 1117.] No. D­1666. In re Disbarment of O'Kicki. Disbarment entered. [For earlier order herein, see ante, p. 1117.] No. D­1687. In re Disbarment of Gottfried. Lawrence Robert Gottfried, of Silver Spring, Md., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. M­64. Petersen v. Government of the Virgin Is- lands; and No. M­66. Caliendo v. Rodriguez, Superintendent of Police of Chicago, et al. Motions to direct the Clerk to file petitions for writs of certiorari out of time denied. 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1232 OCTOBER TERM, 1995 June 3, 1996 517 U. S. No. 65, Orig. Texas v. New Mexico. Motion of the River Master for award of fees and expenses granted, and the River Master is awarded a total of $2,632 for the period January 1 through March 31, 1996, to be paid equally by the parties. [For earlier order herein, see, e. g., 516 U. S. 803.] No. 95­1594. De Buono, New York Commissioner of Health, et al. v. NYSA­ILA Medical and Clinical Serv- ices Fund, by Its Trustees, Bowers et al. C. A. 2d Cir. The Solicitor General is invited to file a brief in this case express- ing the views of the United States. No. 95­8919. In re Lorenz. Petition for writ of habeas cor- pus denied. No. 95­1684. In re Melka Marine, Inc.; No. 95­1687. In re Mitrano; and No. 95­8500. In re Dias. Petitions for writs of mandamus denied. Probable Jurisdiction Noted No. 95­1455. Reno, Attorney General v. Bossier Parish School Board et al.; and No. 95­1508. Price et al. v. Bossier Parish School Board et al. Appeals from D. C. D. C. Probable jurisdiction noted, cases consolidated, and a total of one hour allotted for oral argu- ment. Reported below: 907 F. Supp. 434. Certiorari Granted No. 95­1595. Babbitt, Secretary of the Interior, et al. v. Youpee et al. C. A. 9th Cir. Certiorari granted. Reported below: 67 F. 3d 194. No. 95­1184. Glickman, Secretary of Agriculture v. Wileman Brothers & Elliott, Inc., et al. C. A. 9th Cir. Motions of American Mushroom Institute et al. and National As- sociation of State Departments of Agriculture for leave to file briefs as amici curiae granted. Certiorari granted. Reported below: 58 F. 3d 1367. No. 95­1225. United States v. Brockamp, Administrator of the Estate of McGill, Deceased; and United States v. Scott. C. A. 9th Cir. Motion of Vincent Tassinari for leave to 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1233 517 U. S. June 3, 1996 file a brief as amicus curiae granted. Certiorari granted. Re- ported below: 67 F. 3d 260 (first judgment); 70 F. 3d 120 (second judgment). Certiorari Denied No. 95­1101. Wilson v. Washington. Super. Ct. Wash., King County. Certiorari denied. No. 95­1286. Bakker et al. v. Federal Deposit Insur- ance Co., Receiver for Hansen Savings Bank, SLA. C. A. 11th Cir. Certiorari denied. Reported below: 51 F. 3d 242. No. 95­1328. First National Bank & Trust, Wibaux, Mon- tana, et al. v. Comptroller of the Currency. C. A. 9th Cir. Certiorari denied. Reported below: 63 F. 3d 894. No. 95­1349. Morales v. Industrial Commission of Ari- zona et al. Ct. App. Ariz. Certiorari denied. No. 95­1351. Blytheville School District No. 5 et al. v. Harvell et al. C. A. 8th Cir. Certiorari denied. Reported below: 71 F. 3d 1382. No. 95­1393. Wileman Brothers & Elliott, Inc., et al. v. Glickman, Secretary of Agriculture. C. A. 9th Cir. Cer- tiorari denied. Reported below: 58 F. 3d 1367. No. 95­1395. Central States, Southeast and Southwest Areas Health and Welfare Fund et al. v. Pathology Labo- ratories of Arkansas. C. A. 7th Cir. Certiorari denied. Re- ported below: 71 F. 3d 1251. No. 95­1406. Baker et al. v. Hadley, Columbiana County Auditor. C. A. 6th Cir. Certiorari denied. Reported below: 72 F. 3d 129. No. 95­1413. Bieri et vir v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 68 F. 3d 232. No. 95­1427. Rye Psychiatric Hospital Center, Inc. v. Surles, New York Commissioner of Mental Health, et al. App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied. Re- ported below: 218 App. Div. 2d 853, 630 N. Y. S. 2d 593. No. 95­1445. United States ex rel. Fine v. Chevron U. S. A. Inc. et al. C. A. 9th Cir. Certiorari denied. Re- ported below: 72 F. 3d 740. 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1234 OCTOBER TERM, 1995 June 3, 1996 517 U. S. No. 95­1475. Winston & Strawn v. Hyatt Regency Phoe- nix Hotel Co. et al. Ct. App. Ariz. Certiorari denied. Re- ported below: 184 Ariz. 120, 907 P. 2d 506. No. 95­1482. Mata v. Federal Bureau of Investigation et al. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 513. No. 95­1585. Colvard v. Fulton-DeKalb Hospital Au- thority. C. A. 11th Cir. Certiorari denied. Reported below: 74 F. 3d 1252. No. 95­1602. Idaho v. Stuart. Sup. Ct. Idaho. Certiorari denied. Reported below: 127 Idaho 806, 907 P. 2d 783. No. 95­1638. Libman Co. v. Vining Industries, Inc. C. A. 7th Cir. Certiorari denied. Reported below: 69 F. 3d 1360. No. 95­1640. Anderson v. Sharma et al. (two judgments). Sup. Ct. Va. Certiorari denied. No. 95­1668. Moore v. International Brotherhood of Electrical Workers Local 569 et al. C. A. 9th Cir. Certio- rari denied. No. 95­1689. Bass v. Nevada Board of Medical Examin- ers et al. Sup. Ct. Nev. Certiorari denied. Reported below: 111 Nev. 1734, 916 P. 2d 217. No. 95­1715. Brasseur v. Empire Travel Service, Inc., et al. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 135. No. 95­1722. Rios v. Los Angeles County Department of Children and Family Services. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­1724. Jacob v. Metrolaser, Inc., et al. Ct. App. N. M. Certiorari denied. No. 95­1754. Bailey et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 136. No. 95­1775. Pagan-San-Miguel v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 63 F. 3d 1142. 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1235 517 U. S. June 3, 1996 No. 95­1778. McMillan v. United States. C. A. 9th Cir. Certiorari denied. No. 95­1783. Pruitt et al. v. Howard County Sheriff's Department et al. C. A. 4th Cir. Certiorari denied. Re- ported below: 76 F. 3d 374. No. 95­1791. Missouri Pacific Railroad Co. v. Shepherd. App. Ct. Ill., 5th Dist. Certiorari denied. Reported below: 276 Ill. App. 3d 1148, 697 N. E. 2d 27. No. 95­1795. Lane v. Commissioner of Internal Revenue. C. A. 8th Cir. Certiorari denied. Reported below: 70 F. 3d 1276. No. 95­1798. Martorano v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 465. No. 95­1818. Matthews v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 72 F. 3d 130. No. 95­7946. Pulido v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 125. No. 95­8052. Hill v. Pennsylvania. Sup. Ct. Pa. Certio- rari denied. Reported below: 542 Pa. 291, 666 A. 2d 642. No. 95­8115. Worthey v. Collins, Warden. C. A. 6th Cir. Certiorari denied. No. 95­8137. Nguyen Huu To v. Rubin, Secretary of the Treasury. C. A. 2d Cir. Certiorari denied. Reported below: 99 F. 3d 400. No. 95­8353. Barcher v. Shipman. Sup. Ct. Del. Certiorari denied. Reported below: 676 A. 2d 900. No. 95­8361. Hatch v. Oklahoma. C. A. 10th Cir. Certio- rari denied. Reported below: 58 F. 3d 1447. No. 95­8397. Rogers v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 340. No. 95­8413. Battle v. Bowersox, Superintendent, Po- tosi Correctional Center. C. A. 8th Cir. Certiorari denied. Reported below: 64 F. 3d 347. 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1236 OCTOBER TERM, 1995 June 3, 1996 517 U. S. No. 95­8462. Smart v. Purnell et al. C. A. 7th Cir. Cer- tiorari denied. Reported below: 73 F. 3d 364. No. 95­8472. Cotton v. Nagle, Warden, et al. C. A. 11th Cir. Certiorari denied. No. 95­8481. Shabazz v. Unknown Named Heads of Clan- destine Secret Bodies of the Lexington, Oklahoma, Cor- rectional Center Mail Room and Literary Review Com- mittee Members et al. (two judgments). Sup. Ct. Okla. Certiorari denied. No. 95­8482. Ross v. Nelthropp. Super. Ct. Pa. Certiorari denied. Reported below: 446 Pa. Super. 691, 667 A. 2d 430. No. 95­8492. Fraser Deeble v. Dyslin et al. C. A. 10th Cir. Certiorari denied. Reported below: 70 F. 3d 1282. No. 95­8494. DeYoung v. Kansas et al. C. A. 10th Cir. Certiorari denied. Reported below: 69 F. 3d 547. No. 95­8499. Dymits v. Grim. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 95­8501. Boyd v. Mississippi (two judgments). Sup. Ct. Miss. Certiorari denied. Reported below: 667 So. 2d 1312. No. 95­8504. Current v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. No. 95­8510. Johnson v. Aaron et al. C. A. 5th Cir. Cer- tiorari denied. Reported below: 78 F. 3d 581. No. 95­8515. Maydak v. Wener et al. C. A. 3d Cir. Cer- tiorari denied. No. 95­8517. Morris v. Housing Authority of Kansas City et al. C. A. 8th Cir. Certiorari denied. No. 95­8518. Stanislaw v. Navajo County Board of Su- pervisors et al. C. A. 9th Cir. Certiorari denied. Reported below: 70 F. 3d 1280. No. 95­8519. Taylor v. Cain, Warden. C. A. 5th Cir. Cer- tiorari denied. 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1237 517 U. S. June 3, 1996 No. 95­8521. Lewis v. Century Mortgage Co. et al. Ct. App. Cal., 6th App. Dist. Certiorari denied. No. 95­8524. Davis v. Thompson, Superintendent, Oregon State Penitentiary. C. A. 9th Cir. Certiorari denied. Re- ported below: 67 F. 3d 306. No. 95­8525. Garcia v. Riverdale Plating & Heat Treat- ing Co. C. A. 7th Cir. Certiorari denied. Reported below: 48 F. 3d 1221. No. 95­8533. Dedes v. Page et al. C. A. 4th Cir. Certio- rari denied. Reported below: 72 F. 3d 126. No. 95­8535. Mukherjee v. Sheraton-Palace Hotel. C. A. 9th Cir. Certiorari denied. Reported below: 46 F. 3d 1143. No. 95­8538. Barkett v. Florida. Dist. Ct. App. Fla., 1st Dist. Certiorari denied. Reported below: 666 So. 2d 902. No. 95­8539. Pearson v. Padovano, Chief Judge, Circuit Court of Florida, Leon County. Sup. Ct. Fla. Certiorari denied. Reported below: 673 So. 2d 29. No. 95­8559. Wright v. Reich, Secretary of Labor. C. A. 3d Cir. Certiorari denied. Reported below: 70 F. 3d 1259. No. 95­8573. Reynolds v. Vermont. Sup. Ct. Vt. Certio- rari denied. Reported below: 164 Vt. 651, 677 A. 2d 429. No. 95­8578. Mangrum v. Chater, Commissioner of Social Security. C. A. 11th Cir. Certiorari denied. Reported below: 77 F. 3d 496. No. 95­8594. Blassingame v. United States. C. A. Fed. Cir. Certiorari denied. Reported below: 73 F. 3d 379. No. 95­8632. Osborne et al. v. First Federal Savings Bank. Sup. Ct. Del. Certiorari denied. Reported below: 670 A. 2d 1337. No. 95­8655. Brunston v. Johnson, Director, Texas De- partment of Criminal Justice, Institutional Division. C. A. 5th Cir. Certiorari denied. Reported below: 81 F. 3d 155. No. 95­8658. Geery v. Shelley School District. Sup. Ct. Idaho. Certiorari denied. 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1238 OCTOBER TERM, 1995 June 3, 1996 517 U. S. No. 95­8666. Bies v. Ohio. Sup. Ct. Ohio. Certiorari denied. Reported below: 74 Ohio St. 3d 320, 658 N. E. 2d 754. No. 95­8680. Parkhurst et al. v. Shillinger, Warden. C. A. 10th Cir. Certiorari denied. Reported below: 72 F. 3d 138. No. 95­8687. Santiago v. Snyder, Warden, et al. C. A. 3d Cir. Certiorari denied. No. 95­8721. Snurkowski v. Angelone, Director, Virginia Department of Corrections. C. A. 4th Cir. Certiorari de- nied. Reported below: 70 F. 3d 112. No. 95­8747. Harris v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 59 F. 3d 168. No. 95­8759. Ollie v. Kuhn et al. C. A. 3d Cir. Certiorari denied. Reported below: 79 F. 3d 1138. No. 95­8762. Isaac v. Taylor, Warden, et al. C. A. 4th Cir. Certiorari denied. Reported below: 74 F. 3d 1232. No. 95­8770. Chilli v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 77 F. 3d 497. No. 95­8773. Saldamarco v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 465. No. 95­8774. Oleka v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 79 F. 3d 1140. No. 95­8775. Padgett v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 78 F. 3d 580. No. 95­8798. Stancil v. Moo & Oink, Inc. C. A. 7th Cir. Certiorari denied. Reported below: 76 F. 3d 381. No. 95­8802. Sanders v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 76 F. 3d 376. No. 95­8810. Hyde v. United States. C. A. 9th Cir. Cer- tiorari denied. Reported below: 76 F. 3d 389. No. 95­8832. Bennett v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 464. No. 95­8834. Cook v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 78 F. 3d 585. 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1239 517 U. S. June 3, 1996 No. 95­8840. Mason v. United States. C. A. 8th Cir. Cer- tiorari denied. Reported below: 74 F. 3d 890. No. 95­8843. Idowu v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 74 F. 3d 387. No. 95­8850. Williams v. Abbey Medical, Inc. C. A. 5th Cir. Certiorari denied. Reported below: 79 F. 3d 1144. No. 95­8851. Crispin v. United States. C. A. 2d Cir. Cer- tiorari denied. No. 95­8853. Dorsey v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 77 F. 3d 490. No. 95­8854. Garcia v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 78 F. 3d 1457. No. 95­8855. Shelton v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 81 F. 3d 157. No. 95­8858. Price v. United States. C. A. 10th Cir. Cer- tiorari denied. Reported below: 75 F. 3d 1440. No. 95­8860. Watson v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 76 F. 3d 4. No. 95­8872. Love v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 116. No. 95­8876. Breath v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 76 F. 3d 393. No. 95­8878. Rogers v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 73 F. 3d 774. No. 95­8880. Bailey v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 76 F. 3d 320. No. 95­8882. Andrews v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 75 F. 3d 552. No. 95­8890. Williams v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 56 F. 3d 74. No. 95­8891. Han v. United States. C. A. 4th Cir. Certio- rari denied. Reported below: 74 F. 3d 537. 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1240 OCTOBER TERM, 1995 June 3, 1996 517 U. S. No. 95­8899. Thomas v. United States. C. A. 4th Cir. Certiorari denied. No. 95­1230. BellSouth Telecommunications, Inc., et al. v. Federal Communications Commission et al. C. A. D. C. Cir. Certiorari denied. Justice O'Connor took no part in the consideration or decision of this petition. Reported below: 59 F. 3d 1407. No. 95­1581. Hurinenko et al. v. Chevron U. S. A. Inc. et al. C. A. 8th Cir. Certiorari denied. Justice Breyer took no part in the consideration or decision of this petition. Reported below: 69 F. 3d 283. No. 95­1593. Bourne, dba Bourne Co. v. Walt Disney Co. et al. C. A. 2d Cir. Motions of National Music Publishers' As- sociation, Inc., and Karen Adams et al. for leave to file briefs as amici curiae granted. Certiorari denied. Reported below: 68 F. 3d 621. Rehearing Denied No. 95­1245. Steinberg v. Bingham, Ancillary Adminis- trator of the Estate of Marley, et al., ante, p. 1134; No. 95­1256. Dolenz v. Southwest Media Corp. et al., ante, p. 1134; No. 95­1261. Green v. United Pentecostal Church In- ternational, ante, p. 1134; No. 95­1277. Litz v. Thomas, ante, p. 1135; No. 95­1314. Clements v. Babcock & Wilcox Co. et al., ante, p. 1136; No. 95­7216. Green v. 25th Judicial District Probation Department, 516 U. S. 1130; No. 95­7594. McCarthy v. Kansas City, Missouri, ante, p. 1108; No. 95­7698. Page et al. v. Texas Board of Pardons and Parole et al., ante, p. 1123; No. 95­8024. Bergmann v. McCaughtry, Warden, ante, p. 1160; and No. 95­8242. Crabtree v. Singletary, Secretary, Florida Department of Corrections, et al., ante, p. 1161. Petitions for rehearing denied. 517ORD$$3y 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1241 517 U. S. June 7, 10, 1996 June 7, 1996 Miscellaneous Order No. A­982 (95­1425). Abrams et al. v. Johnson et al. D. C. S. D. Ga. [Probable jurisdiction noted, ante, p. 1207.] Ap- plication for stay, presented to Justice Kennedy, and by him referred to the Court, denied. June 10, 1996 Affirmed on Appeal No. 95­1623. Moore, Attorney General of Mississippi, et al. v. Dupree et al.; and No. 95­1624. Lamar County Board of Education and Trustees et al. v. Dupree et al. Affirmed on appeals from D. C. S. D. Miss. Certiorari Granted-Vacated and Remanded No. 95­963. Greenwood Trust Co. v. Hunter. Sup. Ct. N. J. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Smiley v. Citibank (South Dakota), N. A., ante, p. 735. Reported below: 143 N. J. 97, 668 A. 2d 1067. No. 95­991. Citibank (South Dakota), N. A. v. Sherman. Sup. Ct. N. J. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Smiley v. Citibank (South Dakota), N. A., ante, p. 735. Reported below: 143 N. J. 35, 668 A. 2d 1036. No. 95­1251. Warmus v. Melahn et al. C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for fur- ther consideration in light of Quackenbush v. Allstate Ins. Co., ante, p. 706. Reported below: 62 F. 3d 252. Miscellaneous Orders No. A­974. Washington et al. v. Glucksberg et al. Ap- plication for stay of issuance of mandate of the United States Court of Appeals for the Ninth Circuit, case No. 94­35534, issued on May 29, 1996, presented to Justice O'Connor, and by her referred to the Court, granted pending the timely filing and dispo- sition by this Court of a petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1242 OCTOBER TERM, 1995 June 10, 1996 517 U. S. automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court. No. D­1688. In re Disbarment of Garrigan. Daniel P. Garrigan, of Dallas, Tex., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1689. In re Disbarment of Taylor. Joe Edward Taylor, of Dallas, Tex., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, re- quiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D­1690. In re Disbarment of Weinig. Harvey Weinig, of New York, N. Y., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. M­67. Pozsgay v. Pozsgay; and No. M­69. Colon v. Florida Commission on Ethics. Mo- tions to direct the Clerk to file petitions for writs of certiorari out of time denied. No. 120, Orig. New Jersey v. New York. Motion of the Special Master for award of fees and expenses granted, and the Special Master is awarded a total of $144,837.50 for the period November 18, 1995, through May 15, 1996, to be paid equally by the parties. [For earlier order herein, see, e. g., 516 U. S. 1026.] No. 95­891. Ohio v. Robinette. Sup. Ct. Ohio. [Certiorari granted, 516 U. S. 1157.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. No. 95­974. Arizonans for Official English et al. v. Ari- zona et al. C. A. 9th Cir. [Certiorari granted, ante, p. 1102.] Motion of U. S. English, Inc., for leave to file a brief as amicus curiae granted. No. 95­1065. Schenck et al. v. Pro-Choice Network of Western New York et al. C. A. 2d Cir. [Certiorari granted, 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1243 517 U. S. June 10, 1996 516 U. S. 1170.] Motion of Legal Defense for Unborn Children for leave to file a brief as amicus curiae denied. Motion of Alan Ernest for leave to represent children unborn and born alive denied. No. 95­1081. Ingalls Shipbuilding, Inc., et al. v. Direc- tor, Office of Workers' Compensation Programs, Depart- ment of Labor, et al. C. A. 5th Cir. [Certiorari granted, ante, p. 1186.] Motion of the parties to dispense with printing the joint appendix granted. Certiorari Denied No. 94­1476. Owens-Corning Fiberglas Corp. v. Picker- ing, as Special Administrator of the Estate of Pickering, Deceased, et al. App. Ct. Ill., 5th Dist. Certiorari denied. Reported below: 265 Ill. App. 3d 806, 638 N. E. 2d 1127. No. 95­800. Owens-Corning Fiberglas Corp. v. Brennan. C. A. 9th Cir. Certiorari denied. Reported below: 61 F. 3d 910. No. 95­818. Owens-Corning Fiberglas Corp. v. Rekdahl et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­951. Harris v. Chase Manhattan Bank, N. A., et al. Sup. Ct. Cal. Certiorari denied. No. 95­1056. Copeland v. MBNA America Bank, N. A. Sup. Ct. Colo. Certiorari denied. Reported below: 907 P. 2d 87. No. 95­1257. Fallini et al. v. United States. C. A. Fed. Cir. Certiorari denied. Reported below: 56 F. 3d 1378. No. 95­1318. Pittman et al. v. Chicago Board of Educa- tion et al. C. A. 7th Cir. Certiorari denied. Reported below: 64 F. 3d 1098. No. 95­1348. Lowenschuss v. Resorts International, Inc. C. A. 9th Cir. Certiorari denied. Reported below: 67 F. 3d 1394. No. 95­1355. Chaplin v. United States; No. 95­8134. Ratliff v. United States; and No. 95­8147. Lawrence v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 69 F. 3d 419. No. 95­1440. President Container, Inc. v. National Labor Relations Board. C. A. 3d Cir. Certiorari denied. Reported below: 74 F. 3d 1227. 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1244 OCTOBER TERM, 1995 June 10, 1996 517 U. S. No. 95­1444. Cahill v. Department of Labor et al. C. A. 11th Cir. Certiorari denied. Reported below: 63 F. 3d 1111. No. 95­1449. Owens-Corning Fiberglas Corp. v. Dudley et ux. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Re- ported below: 667 So. 2d 783. No. 95­1450. Camp, Administrator of the Estate of Young, Deceased v. Gregory; and No. 95­1669. Gregory v. Camp, Administrator of the Estate of Young, Deceased. C. A. 7th Cir. Certiorari denied. Reported below: 67 F. 3d 1286. No. 95­1493. Richardson v. Citibank (South Dakota), N. A.; and No. 95­1500. Stoorman v. Greenwood Trust Co. Sup. Ct. Colo. Certiorari denied. Reported below: No. 95­1493, 908 P. 2d 532; No. 95­1500, 908 P. 2d 133. No. 95­1497. Cramer et al. v. Commissioner of Internal Revenue. C. A. 9th Cir. Certiorari denied. Reported below: 64 F. 3d 1406. No. 95­1512. Totemoff v. Alaska. Sup. Ct. Alaska. Cer- tiorari denied. Reported below: 905 P. 2d 954. No. 95­1538. Webb v. Commissioner of Internal Reve- nue. C. A. 9th Cir. Certiorari denied. Reported below: 68 F. 3d 482. No. 95­1614. Westland Development Co., Inc. v. City of Albuquerque. Ct. App. N. M. Certiorari denied. Reported below: 121 N. M. 144, 909 P. 2d 25. No. 95­1622. Gurley, dba Moltan Co. v. Swaim. C. A. 7th Cir. Certiorari denied. Reported below: 73 F. 3d 711. No. 95­1625. Boyce et al. v. Greenway. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 1177. No. 95­1628. Lehtinen v. Quantum Chemical Corp. C. A. 6th Cir. Certiorari denied. Reported below: 70 F. 3d 1272. No. 95­1630. Nassimos et al. v. New Jersey Board of Examiners of Master Plumbers et al. C. A. 3d Cir. Certiorari denied. Reported below: 74 F. 3d 1227. 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1245 517 U. S. June 10, 1996 No. 95­1643. Ellis et al. v. United Airlines, Inc. C. A. 10th Cir. Certiorari denied. Reported below: 73 F. 3d 999. No. 95­1648. Wechsler v. Virginia. Sup. Ct. Va. Certio- rari denied. No. 95­1650. Knapp Shoes Inc. v. Sylvania Shoe Manufac- turing Corp. C. A. 1st Cir. Certiorari denied. Reported below: 72 F. 3d 190. No. 95­1651. Shearson Lehman Brothers, Inc., fka Shearson Lehman Hutton, Inc., et al. v. Hughes, Hub- bard & Reed. Ct. App. Tex., 1st Dist. Certiorari denied. Re- ported below: 902 S. W. 2d 60. No. 95­1654. Environmental Coalition of Ojai et al. v. Secretary of Commerce et al. C. A. 9th Cir. Certiorari denied. Reported below: 72 F. 3d 1411. No. 95­1665. Balandra Schiffahrts-Gesellschaft MBH & Co., KG v. Costa. C. A. 9th Cir. Certiorari denied. Reported below: 78 F. 3d 592. No. 95­1671. Soffer v. Queens College of the City Uni- versity of New York. C. A. 2d Cir. Certiorari denied. No. 95­1677. Levien et ux. v. Commissioner of Internal Revenue. C. A. 11th Cir. Certiorari denied. Reported below: 77 F. 3d 497. No. 95­1683. Hawes v. Virginia. Ct. App. Va. Certiorari denied. No. 95­1685. Melka Marine, Inc. v. Town of Colonial Beach. Sup. Ct. Va. Certiorari denied. No. 95­1686. Mitrano v. Town of Colonial Beach. Sup. Ct. Va. Certiorari denied. No. 95­1701. Armstrong v. Commodity Futures Trading Commission. C. A. 3d Cir. Certiorari denied. Reported below: 77 F. 3d 461. No. 95­1736. Pepper et ux. v. Damer et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1246 OCTOBER TERM, 1995 June 10, 1996 517 U. S. No. 95­1777. Bass v. Sarasota County, Florida. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Reported below: 662 So. 2d 347. No. 95­1792. Oyler v. United States et al. C. A. 10th Cir. Certiorari denied. Reported below: 76 F. 3d 393. No. 95­1804. Linehan et al. v. Keeffe et al. C. A. 2d Cir. Certiorari denied. Reported below: 99 F. 3d 401. No. 95­1806. Shoffeitt v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 70 F. 3d 126. No. 95­1814. Hutching v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 75 F. 3d 1453. No. 95­1816. Sanchez v. United States; and No. 95­8924. Carvajal v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 78 F. 3d 599. No. 95­1823. Wilson v. United States. C. A. 4th Cir. Cer- tiorari denied. Reported below: 77 F. 3d 472. No. 95­1824. Sykes v. United States. C. A. 8th Cir. Cer- tiorari denied. Reported below: 73 F. 3d 772. No. 95­1829. Marchese v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 72 F. 3d 124. No. 95­1833. Mims v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 79 F. 3d 1158. No. 95­1849. Pic-A-State PA, Inc., et al. v. Reno, Attor- ney General, et al. C. A. 3d Cir. Certiorari denied. Re- ported below: 76 F. 3d 1294. No. 95­1859. McCastle v. United States. C. A. Armed Forces. Certiorari denied. Reported below: 43 M. J. 438. No. 95­1875. Reed v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 77 F. 3d 139. No. 95­7378. Sanders v. Louisiana. Sup. Ct. La. Certio- rari denied. Reported below: 648 So. 2d 1272. No. 95­7925. Mays v. United States; and No. 95­7926. Mays v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 69 F. 3d 116. 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1247 517 U. S. June 10, 1996 No. 95­8108. Wharton v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Reported below: 542 Pa. 83, 665 A. 2d 458. No. 95­8394. Medina v. Singletary, Secretary, Florida Department of Corrections. C. A. 11th Cir. Certiorari de- nied. Reported below: 59 F. 3d 1095. No. 95­8540. Berget v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. Reported below: 907 P. 2d 1078. No. 95­8545. Radic v. Chicago Transit Authority. C. A. 7th Cir. Certiorari denied. Reported below: 73 F. 3d 159. No. 95­8546. McQueen v. Cannon et al. C. A. 5th Cir. Certiorari denied. Reported below: 79 F. 3d 1145. No. 95­8552. Jackson v. Alabama. Sup. Ct. Ala. Certiorari denied. Reported below: 672 So. 2d 810. No. 95­8553. Messler et al. v. Farmer, Judge, District Court of Appeal of Florida, Fourth District, et al. Sup. Ct. Fla. Certiorari denied. Reported below: 666 So. 2d 901. No. 95­8555. Bishop v. Rickles, Fulton County Child Support Receiver, for the Use and Benefit of Smith. C. A. 11th Cir. Certiorari denied. No. 95­8556. Christopher v. Ohio. Ct. App. Ohio, Cuyahoga County. Certiorari denied. No. 95­8562. Glasscock v. Utah. Ct. App. Utah. Certio- rari denied. No. 95­8565. Duell v. Utah et al. C. A. 9th Cir. Certio- rari denied. Reported below: 76 F. 3d 385. No. 95­8566. Youngs v. Wheless, Bankruptcy Judge, United States District Court for the Southern District of Texas, et al. C. A. 5th Cir. Certiorari denied. Reported below: 70 F. 3d 1268. No. 95­8568. Lucas v. Thompson, Warden. Super. Ct. Tatt- nall County, Ga. Certiorari denied. No. 95­8570. Calhoun v. Allen et al. C. A. 7th Cir. Cer- tiorari denied. 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1248 OCTOBER TERM, 1995 June 10, 1996 517 U. S. No. 95­8575. Boyd v. Christian Methodist Episcopal Church et al. C. A. 4th Cir. Certiorari denied. Reported below: 73 F. 3d 356. No. 95­8576. Fuller v. Texas. Ct. Crim. App. Tex. Cer- tiorari denied. No. 95­8577. Holmes v. South Carolina. Sup. Ct. S. C. Certiorari denied. Reported below: 320 S. C. 259, 464 S. E. 2d 334. No. 95­8580. Williams v. Workers' Compensation Ap- peals Board et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­8583. Cheng v. Metropolitan Life Insurance Co. C. A. 2d Cir. Certiorari denied. Reported below: 71 F. 3d 404. No. 95­8589. Tucker v. Montgomery Ward Credit Corp. C. A. 5th Cir. Certiorari denied. Reported below: 71 F. 3d 876. No. 95­8592. James v. Graziani et al. C. A. 4th Cir. Cer- tiorari denied. Reported below: 67 F. 3d 295. No. 95­8596. Zilich v. Mazurkiewicz, Superintendent, State Correctional Institution at Rockview, et al. C. A. 3d Cir. Certiorari denied. Reported below: 82 F. 3d 408. No. 95­8598. Catanio v. Myers, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 69 F. 3d 543. No. 95­8607. Warren v. Keane, Superintendent, Sing Sing Correctional Facility. C. A. 2d Cir. Certiorari denied. Reported below: 99 F. 3d 402. No. 95­8622. Cantrell v. Moore, Director, South Caro- lina Department of Corrections, et al. C. A. 4th Cir. Certiorari denied. Reported below: 73 F. 3d 356. No. 95­8656. Gee v. Campbell. C. A. 10th Cir. Certiorari denied. Reported below: 77 F. 3d 492. No. 95­8662. Murphy v. United States. C. A. Fed. Cir. Certiorari denied. Reported below: 82 F. 3d 434. No. 95­8664. Lang v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1249 517 U. S. June 10, 1996 No. 95­8729. Downs v. Virginia et al. C. A. 4th Cir. Cer- tiorari denied. Reported below: 76 F. 3d 372. No. 95­8758. Wright v. Delaware. Sup. Ct. Del. Certio- rari denied. Reported below: 671 A. 2d 1353. No. 95­8782. Hansen v. Nebraska. Sup. Ct. Neb. Certio- rari denied. Reported below: 249 Neb. 177, 542 N. W. 2d 424. No. 95­8816. Wootton v. Florida. Dist. Ct. App. Fla., 5th Dist. Certiorari denied. Reported below: 672 So. 2d 553. No. 95­8818. Baxter v. City of Los Angeles, California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 95­8837. Carson v. Fauver. C. A. 3d Cir. Certiorari denied. No. 95­8847. Medina-Acevedo v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 73 F. 3d 364. No. 95­8866. Molina v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 75 F. 3d 600. No. 95­8869. Graves v. Saunders, Warden. C. A. 4th Cir. Certiorari denied. Reported below: 77 F. 3d 468. No. 95­8875. LeBon v. United States. C. A. 1st Cir. Cer- tiorari denied. Reported below: 72 F. 3d 121. No. 95­8883. Bevill v. Mississippi. Ct. App. Miss. Certio- rari denied. Reported below: 672 So. 2d 768. No. 95­8884. Correa v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 69 F. 3d 679. No. 95­8896. Smith v. United States. C. A. 8th Cir. Cer- tiorari denied. Reported below: 81 F. 3d 166. No. 95­8901. Couse v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 70 F. 3d 1284. No. 95­8907. Smith v. United States. C. A. 6th Cir. Cer- tiorari denied. Reported below: 78 F. 3d 585. No. 95­8908. Sweat v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 78 F. 3d 600. 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1250 OCTOBER TERM, 1995 June 10, 1996 517 U. S. No. 95­8916. Lloyd v. United States. C. A. 7th Cir. Cer- tiorari denied. Reported below: 71 F. 3d 1256. No. 95­8930. Angel Rivera v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 77 F. 3d 1348. No. 95­8931. Benavidez v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 79 F. 3d 1144. No. 95­8932. Bold v. United States. C. A. 2d Cir. Certio- rari denied. Reported below: 100 F. 3d 944. No. 95­8933. Adames et al. v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 56 F. 3d 737. No. 95­8934. Barron v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 77 F. 3d 490. No. 95­8937. Corti v. United States. C. A. 11th Cir. Cer- tiorari denied. Reported below: 79 F. 3d 1158. No. 95­8940. Rivers v. United States. C. A. 2d Cir. Cer- tiorari denied. Reported below: 101 F. 3d 681. No. 95­8941. Purefoy v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 79 F. 3d 1142. No. 95­8946. Smith v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 79 F. 3d 1144. No. 95­8947. Stedman v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 69 F. 3d 737. No. 95­8955. Ashley v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 78 F. 3d 600. No. 95­8956. Francis v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 82 F. 3d 77. No. 95­8957. Walker v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 75 F. 3d 178. No. 95­8959. Hurtado-Gonzalez v. United States. C. A. 11th Cir. Certiorari denied. Reported below: 74 F. 3d 1147. No. 95­8961. Gamble v. Moore, Director, South Carolina Department of Corrections, et al. C. A. 4th Cir. Certio- rari denied. Reported below: 73 F. 3d 357. 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1251 517 U. S. June 10, 1996 No. 95­8962. Erwin v. United States. C. A. 5th Cir. Cer- tiorari denied. Reported below: 77 F. 3d 475. No. 95­8965. Douglas v. United States C. A. 2d Cir. Cer- tiorari denied. Reported below: 81 F. 3d 324. No. 95­8977. Jacobs v. Circuit Court of Wisconsin, Mara- thon County. C. A. 7th Cir. Certiorari denied. Reported below: 73 F. 3d 164. No. 95­8980. Karimi v. United States. C. A. 3d Cir. Cer- tiorari denied. Reported below: 79 F. 3d 1139. No. 95­8982. Martin v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 79 F. 3d 1145. No. 95­1429. Illinois v. Montanez. App. Ct. Ill., 1st Dist. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 273 Ill. App. 3d 844, 652 N. E. 2d 1271. No. 95­1636. Exxon Corp. v. Youell et al. C. A. 2d Cir. Certiorari denied. Justice Breyer took no part in the consider- ation or decision of this petition. Reported below: 74 F. 3d 373. No. 95­8824. Pandey v. Paul Revere Life Insurance Co. et al. App. Ct. Mass. Certiorari denied. Justice Breyer took no part in the consideration or decision of this petition. Re- ported below: 39 Mass. App. 1108, 655 N. E. 2d 391. No. 95­1637. SeaRiver Maritime, Inc. v. Exxon Seamen's Union. C. A. 3d Cir. Motion of Institute for a Drug-Free Work- place for leave to file a brief as amicus curiae granted. Certio- rari denied. Reported below: 73 F. 3d 1287. Rehearing Denied No. 95­1191. Trahan v. Trahan, ante, p. 1155; No. 95­1364. Smith v. Glenolden Borough et al., ante, p. 1167; No. 95­6996. Quiba v. Office of Personnel Management, ante, p. 1138; No. 95­7008. Daguinotnot v. Office of Personnel Man- agement, ante, p. 1138; No. 95­7043. Alferos v. Office of Personnel Manage- ment, ante, p. 1139; 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) 1252 OCTOBER TERM, 1995 June 10, 11, 1996 517 U. S. No. 95­7045. Bondad v. Office of Personnel Manage- ment, ante, p. 1139; No. 95­7066. Rabe v. Office of Personnel Management, ante, p. 1139; No. 95­7089. Florentino v. Office of Personnel Manage- ment, ante, p. 1139; No. 95­7279. Beets v. Johnson, Director, Texas Depart- ment of Criminal Justice, Institutional Division, ante, p. 1157; No. 95­7359. Misek-Falkoff v. Keller, 516 U. S. 1135; No. 95­7389. Coronel v. Office of Personnel Manage- ment, ante, p. 1140; No. 95­7485. Santos v. Office of Personnel Management, ante, p. 1141; No. 95­7725. Foronda v. Office of Personnel Manage- ment, ante, p. 1141; No. 95­7726. Garcia v. Office of Personnel Management, ante, p. 1141; No. 95­7769. Smith v. Pennsylvania, ante, p. 1141; No. 95­7852. Lynch v. North Carolina, ante, p. 1143; No. 95­7947. Olsen v. Lane et al., ante, p. 1158; No. 95­8031. Franklyn v. Vista del Mar et al., ante, p. 1169; No. 95­8102. Csorba v. ITT Electro-Optical Products Division, ante, p. 1160; and No. 95­8151. Mauro v. United States, ante, p. 1126. Peti- tions for rehearing denied. No. 95­7134. Hardy et ux. v. City of Orlando, ante, p. 1139. Motion for leave to file petition for rehearing denied. June 11, 1996 Miscellaneous Order No. A­1022 (95­9264). Oxford v. Bowersox, Superintend- ent, Potosi Correctional Center. C. A. 8th Cir. Applica- tion for stay of execution of sentence of death, presented to Jus- tice Thomas, and by him referred to the Court, granted pending the disposition by this Court of the petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court. 517ORD$$3z 01-05-99 18:54:24 PGT*ORDBV (Bound Volume) ORDERS 1253 517 U. S. June 13, 1996 Miscellaneous Order No. A­1019 (95­9261). Smith v. Parke, Superintendent, In- diana State Prison. C. A. 7th Cir. Application for stay of execution of sentence of death, presented to Justice Stevens, and by him referred to the Court, granted pending the disposition by this Court of the petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates auto- matically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court. 517rul3ap1 01-05-99 12:35:53 PGT * RULES AMENDMENTS TO FEDERAL RULES OF APPELLATE PROCEDURE The following amendments to the Federal Rules of Appellate Procedure were prescribed by the Supreme Court of the United States on April 23, 1996, pursuant to 28 U. S. C. § 2072, and were reported to Congress by The Chief Justice on the same date. For the letter of transmittal, see post, p. 1256. The Judicial Conference report referred to in that letter is not reproduced herein. Note that under 28 U. S. C. § 2074, such amendments shall take effect no earlier than December 1 of the year in which they are transmitted to Congress unless otherwise provided by law. For earlier publication of the Federal Rules of Appellate Procedure and the amendments thereto, see 389 U. S. 1063, 398 U. S. 971, 401 U. S. 1029, 406 U. S. 1005, 441 U. S. 973, 475 U. S. 1153, 490 U. S. 1125, 500 U. S. 1007, 507 U. S. 1059, 511 U. S. 1155, and 514 U. S. 1137. 1255 517rul3ap2 01-05-99 12:35:53 PGT * RULES LETTER OF TRANSMITTAL Supreme Court of the United States washington, d. c. April 23, 1996 To the Senate and House of Representatives of the United States of America in Congress Assembled: By direction of the Supreme Court of the United States, I have the honor to submit to the Congress the amendments to the Federal Rules of Appellate Procedure that have been adopted by the Supreme Court of the United States pursuant to Section 2072 of Title 28, United States Code. Accompanying these rules are excerpts from the report of the Judicial Conference of the United States containing the Advisory Committee notes submitted to the Court for its consideration pursuant to Section 331 of Title 28, United States Code. Sincerely, (Signed) William H. Rehnquist Chief Justice of the United States 1256 517rul3ap3 01-05-99 12:35:53 PGT * RULES SUPREME COURT OF THE UNITED STATES april 23, 1996 Ordered: 1. That the Federal Rules of Appellate Procedure be, and they hereby are, amended by including therein amendments to Appellate Rules 21, 25, and 26. [See infra, pp. 1259­1262.] 2. That the foregoing amendments to the Federal Rules of Appellate Procedure shall take effect on December 1, 1996, and shall govern all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceed- ings in appellate cases then pending. 3. That The Chief Justice be, and hereby is, authorized to transmit to the Congress the foregoing amendments to the Federal Rules of Appellate Procedure in accordance with the provisions of Section 2072 of Title 28, United States Code. 1257 517rul3ap4 01-05-99 12:35:53 PGT * RULES AMENDMENTS TO THE FEDERAL RULES OF APPELLATE PROCEDURE Rule 21. Writs of mandamus and prohibition, and other extraordinary writs. (a) Mandamus or prohibition to a court: petition, filing, service, and docketing. (1) A party petitioning for a writ of mandamus or pro- hibition directed to a court shall file a petition with the circuit clerk with proof of service on all parties to the proceeding in the trial court. The party shall also pro- vide a copy to the trial court judge. All parties to the proceeding in the trial court other than the petitioner are respondents for all purposes. (2)(A) The petition shall be titled "In re [name of petitioner]." (B) The petition shall state: (i) the relief sought; (ii) the issues presented; (iii) the facts necessary to understand the issues presented by the petition; and (iv) the reasons why the writ should issue. (C) The petition shall include copies of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition. (3) When the clerk receives the prescribed docket fee, the clerk shall docket the petition and submit it to the court. (b) Denial; order directing answer; briefs; precedence. (1) The court may deny the petition without an an- swer. Otherwise, it shall order the respondent, if any, to answer within a fixed time. 1259 517rul3ap4 01-05-99 12:35:53 PGT * RULES 1260 RULES OF APPELLATE PROCEDURE (2) The clerk shall serve the order to respond on all persons directed to respond. (3) Two or more respondents may answer jointly. (4) The court of appeals may invite or order the trial court judge to respond or may invite an amicus curiae to do so. The trial court judge may request permission to respond but may not respond unless invited or or- dered to do so by the court of appeals. (5) If briefing or oral argument is required, the clerk shall advise the parties, and when appropriate, the trial court judge or amicus curiae. (6) The proceeding shall be given preference over ordinary civil cases. (7) The circuit clerk shall send a copy of the final disposition to the trial court judge. (c) Other extraordinary writs.-Application for an ex- traordinary writ other than one of those provided for in sub- divisions (a) and (b) of this rule shall be made by filing a petition with the circuit clerk with proof of service on the respondents. Proceedings on such application shall con- form, so far as is practicable, to the procedure prescribed in subdivisions (a) and (b) of this rule. (d) Form of papers; number of copies.-All papers may be typewritten. An original and three copies shall be filed unless the court requires the filing of a different number by local rule or by order in a particular case. Rule 25. Filing, proof of filing, service, and proof of service. (a) Filing. (1) Filing with the clerk.-A paper required or per- mitted to be filed in a court of appeals shall be filed with the clerk. (2) Filing: method and timeliness. (A) In general.-Filing may be accomplished by mail addressed to the clerk, but filing is not timely unless the clerk receives the papers within the time fixed for filing. 517rul3ap4 01-05-99 12:35:53 PGT * RULES RULES OF APPELLATE PROCEDURE 1261 (B) A brief or appendix.-A brief or appendix is timely filed, however, if on or before the last day for filing, it is: (i) mailed to the clerk by First-Class Mail, or other class of mail that is at least as expeditious, postage prepaid; or (ii) dispatched to the clerk for delivery within 3 calendar days by a third-party commercial carrier. (C ) Inmate filing.-A paper filed by an inmate con- fined in an institution is timely filed if deposited in the institution's internal mail system on or before the last day for filing. Timely filing of a paper by an inmate confined in an institution may be shown by a notarized statement or declaration (in compliance with 28 U. S. C. § 1746) setting forth the date of deposit and stating that first-class postage has been prepaid. (D) Electronic filing.-A court of appeals may by local rule permit papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A paper filed by electronic means in compliance with a local rule constitutes a writ- ten paper for the purpose of applying these rules. (3) Filing a motion with a judge.-If a motion re- quests relief that may be granted by a single judge, the judge may permit the motion to be filed with the judge; the judge shall note the filing date on the motion and give it to the clerk. (4) Clerk's refusal of documents.-The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or by any local rules or practices. . . . . . (c) Manner of service.-Service may be personal, by mail, or by third-party commercial carrier for delivery within 3 calendar days. When reasonable considering such factors as the immediacy of the relief sought, distance, and cost, service 517rul3ap4 01-05-99 12:35:53 PGT * RULES 1262 RULES OF APPELLATE PROCEDURE on a party shall be by a manner at least as expeditious as the manner used to file the paper with the court. Personal service includes delivery of the copy to a responsible person at the office of counsel. Service by mail or by commercial carrier is complete on mailing or delivery to the carrier. (d) Proof of service; filing.-A paper presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service, of the name of the person served, and of the addresses to which the papers were mailed or at which they were delivered, certified by the person who made service. Proof of service may appear on or be affixed to the papers filed. When a brief or appendix is filed by mailing or dispatch in accordance with Rule 25(a)(2)(B), the proof of service shall also state the date and manner by which the document was mailed or dispatched to the clerk. . . . . . Rule 26. Computation and extension of time. . . . . . (c) Additional time after service.-When a party is re- quired or permitted to act within a prescribed period after service of a paper upon that party, 3 calendar days are added to the prescribed period unless the paper is delivered on the date of service stated in the proof of service. 517rul3bk1 01-05-99 12:37:25 PGT * RULES AMENDMENTS TO FEDERAL RULES OF BANKRUPTCY PROCEDURE The following amendments to the Federal Rules of Bankruptcy Proce- dure were prescribed by the Supreme Court of the United States on April 23, 1996, pursuant to 28 U. S. C. § 2075, and were reported to Congress by The Chief Justice on the same date. For the letter of transmittal, see post, p. 1264. The Judicial Conference report referred to in that letter is not reproduced herein. Note that under 28 U. S. C. § 2075, such amendments shall take effect no earlier than December 1 of the year in which they are transmitted to Congress unless otherwise provided by law. For earlier publication of the Federal Rules of Bankruptcy Procedure and amendments thereto, see, e. g., 461 U. S. 973, 471 U. S. 1147, 480 U. S. 1077, 490 U. S. 1119, 500 U. S. 1017, 507 U. S. 1075, 511 U. S. 1169, and 514 U. S. 1145. 1263 517rul3bk2 01-05-99 12:37:25 PGT * RULES LETTER OF TRANSMITTAL Supreme Court of the United States washington, d. c. April 23, 1996 To the Senate and House of Representatives of the United States of America in Congress Assembled: By direction of the Supreme Court of the United States, I have the honor to submit to the Congress the amendments to the Federal Rules of Bankruptcy Procedure that have been adopted by the Supreme Court of the United States pursuant to Section 2075 of Title 28, United States Code. Accompanying these rules are excerpts from the report of the Judicial Conference of the United States containing the Advisory Committee Notes submitted to the Court for its consideration pursuant to Section 331 of Title 28, United States Code. Sincerely, (Signed) William H. Rehnquist Chief Justice of the United States 1264 517rul3bk3 01-05-99 12:37:25 PGT * RULES SUPREME COURT OF THE UNITED STATES april 23, 1996 Ordered: 1. That the Federal Rules of Bankruptcy Procedure be, and they hereby are, amended by including therein amend- ments to Bankruptcy Rules 1006, 1007, 1019, 2002, 2015, 3002, 3016, 4004, 5005, 7004, 8008, and 9006. [See infra, pp. 1267­1278.] 2. That the foregoing amendments to the Federal Rules of Bankruptcy Procedure shall take effect on December 1, 1996, and shall govern all proceedings in bankruptcy cases there- after commenced and, insofar as just and practicable, all pro- ceedings in bankruptcy cases then pending. 3. That The Chief Justice be, and hereby is, authorized to transmit to the Congress the foregoing amendments to the Federal Rules of Bankruptcy Procedure in accordance with the provisions of Section 2075 of Title 28, United States Code. 1265 517rul3bk4 01-05-99 12:37:25 PGT * RULES AMENDMENTS TO THE FEDERAL RULES OF BANKRUPTCY PROCEDURE Rule 1006. Filing fee. (a) General requirement.-Every petition shall be accom- panied by the filing fee except as provided in subdivision (b) of this rule. For the purpose of this rule, "filing fee" means the filing fee prescribed by 28 U. S. C. § 1930(a)(1)­(a)(5) and any other fee prescribed by the Judicial Conference of the United States under 28 U. S. C. § 1930(b) that is payable to the clerk upon the commencement of a case under the Code. . . . . . Rule 1007. Lists, schedules and statements; time limits. . . . . . (c) Time limits.-The schedules and statements, other than the statement of intention, shall be filed with the peti- tion in a voluntary case, or if the petition is accompanied by a list of all the debtor's creditors and their addresses, within 15 days thereafter, except as otherwise provided in subdivi- sions (d), (e), and (h) of this rule. In an involuntary case the schedules and statements, other than the statement of intention, shall be filed by the debtor within 15 days after entry of the order for relief. Schedules and statements filed prior to the conversion of a case to another chapter shall be deemed filed in the converted case unless the court directs otherwise. Any extension of time for the filing of the sched- ules and statements may be granted only on motion for cause shown and on notice to the United States trustee and to any committee elected under § 705 or appointed under § 1102 of the Code, trustee, examiner, or other party as the court may direct. Notice of an extension shall be given to the United States trustee and to any committee, trustee, or other party as the court may direct. . . . . . 1267 517rul3bk4 01-05-99 12:37:25 PGT * RULES 1268 RULES OF BANKRUPTCY PROCEDURE Rule 1019. Conversion of Chapter 11 reorganization case, Chapter 12 family farmer's debt adjustment case, or Chapter 13 individual's debt adjustment case to Chap- ter 7 liquidation case. When a chapter 11, chapter 12, or chapter 13 case has been converted or reconverted to a chapter 7 case: . . . . . Rule 2002. Notices to creditors, equity security holders, United States, and United States trustee. (a) Twenty-day notices to parties in interest.-Except as provided in subdivisions (h), (i), and (l) of this rule, the clerk, or some other person as the court may direct, shall give the debtor, the trustee, all creditors and indenture trustees at least 20 days' notice by mail of: (1) the meeting of creditors under § 341 of the Code; (2) a proposed use, sale, or lease of property of the estate other than in the ordinary course of business, unless the court for cause shown shortens the time or directs another method of giving notice; (3) the hearing on approval of a compromise or settle- ment of a controversy other than approval of an agree- ment pursuant to Rule 4001(d), unless the court for cause shown directs that notice not be sent; (4) in a chapter 7 liquidation, a chapter 11 reorganiza- tion case, and a chapter 12 family farmer debt adjust- ment case, the hearing on the dismissal of the case, un- less the hearing is under § 707(b) of the Code, or the conversion of the case to another chapter; (5) the time fixed to accept or reject a proposed modi- fication of a plan; (6) hearings on all applications for compensation or reimbursement of expenses totaling in excess of $500; (7) the time fixed for filing proofs of claims pursuant to Rule 3003(c); and (8) the time fixed for filing objections and the hearing to consider confirmation of a chapter 12 plan. . . . . . 517rul3bk4 01-05-99 12:37:25 PGT * RULES RULES OF BANKRUPTCY PROCEDURE 1269 (c) Content of notice. . . . . . (2) Notice of hearing on compensation.-The notice of a hearing on an application for compensation or reim- bursement of expenses required by subdivision (a)(6) of this rule shall identify the applicant and the amounts requested. . . . . . ( f ) Other notices.-Except as provided in subdivision (l) of this rule, the clerk, or some other person as the court may direct, shall give the debtor, all creditors, and indenture trustees notice by mail of: (1) the order for relief; . . . . . and (8) a summary of the trustee's final report in a chapter 7 case if the net proceeds realized exceed $1,500. Notice of the time fixed for accepting or rejecting a plan pursuant to Rule 3017(c) shall be given in accordance with Rule 3017(d). . . . . . (h) Notices to creditors whose claims are filed.-In a chap- ter 7 case, after 90 days following the first date set for the meeting of creditors under § 341 of the Code, the court may direct that all notices required by subdivision (a) of this rule be mailed only to the debtor, the trustee, all indenture trust- ees, creditors that hold claims for which proofs of claim have been filed, and creditors, if any, that are still permitted to file claims by reason of an extension granted pursuant to Rule 3002(c)(1) or (c)(2). In a case where notice of insuffi- cient assets to pay a dividend has been given to creditors pursuant to subdivision (e) of this rule, after 90 days follow- ing the mailing of a notice of the time for filing claims pur- suant to Rule 3002(c)(5), the court may direct that notices be mailed only to the entities specified in the preceding sentence. (i) Notices to committees.-Copies of all notices required to be mailed pursuant to this rule shall be mailed to the committees elected under § 705 or appointed under § 1102 of the Code or to their authorized agents. Notwithstanding the foregoing subdivisions, the court may order that notices 517rul3bk4 01-05-99 12:37:25 PGT * RULES 1270 RULES OF BANKRUPTCY PROCEDURE required by subdivision (a)(2), (3) and (6) of this rule be transmitted to the United States trustee and be mailed only to the committees elected under § 705 or appointed under § 1102 of the Code or to their authorized agents and to the creditors and equity security holders who serve on the trustee or debtor in possession and file a request that all notices be mailed to them. A committee appointed under § 1114 shall receive copies of all notices required by subdivi- sions (a)(1), (a)(5), (b), (f)(2), and (f)(7), and such other notices as the court may direct. . . . . . (k) Notices to United States trustee.-Unless the case is a chapter 9 municipality case or unless the United States trustee requests otherwise, the clerk, or some other person as the court may direct, shall transmit to the United States trustee notice of the matters described in subdivisions (a)(2), (a)(3), (a)(4), (a)(8), (b), (f)(1), (f)(2), (f)(4), (f)(6), (f)(7), and (f)(8) of this rule and notice of hearings on all applications for compensation or reimbursement of expenses. Notices to the United States trustee shall be transmitted within the time prescribed in subdivision (a) or (b) of this rule. The United States trustee shall also receive notice of any other matter if such notice is requested by the United States trustee or ordered by the court. Nothing in these rules requires the clerk or any other person to transmit to the United States trustee any notice, schedule, report, applica- tion or other document in a case under the Securities Inves- tor Protection Act, 15 U. S. C. § 78aaa et seq. . . . . . Rule 2015. Duty to keep records, make reports, and give notice of case. . . . . . (b) Chapter 12 trustee and debtor in possession.-In a chapter 12 family farmer's debt adjustment case, the debtor in possession shall perform the duties prescribed in clauses (2)­(4) of subdivision (a) of this rule and, if the court directs, shall file and transmit to the United States trustee a com- 517rul3bk4 01-05-99 12:37:25 PGT * RULES RULES OF BANKRUPTCY PROCEDURE 1271 plete inventory of the property of the debtor within the time fixed by the court. If the debtor is removed as debtor in possession, the trustee shall perform the duties of the debtor in possession prescribed in this paragraph. (c) Chapter 13 trustee and debtor. (1) Business cases.-In a chapter 13 individual's debt adjustment case, when the debtor is engaged in busi- ness, the debtor shall perform the duties prescribed by clauses (2)­(4) of subdivision (a) of this rule and, if the court directs, shall file and transmit to the United States trustee a complete inventory of the property of the debtor within the time fixed by the court. . . . . . Rule 3002. Filing proof of claim or interest. (a) Necessity for filing.-An unsecured creditor or an eq- uity security holder must file a proof of claim or interest for the claim or interest to be allowed, except as provided in Rules 1019(3), 3003, 3004, and 3005. . . . . . (c) Time for filing.-In a chapter 7 liquidation, chapter 12 family farmer's debt adjustment, or chapter 13 individual's debt adjustment case, a proof of claim is timely filed if it is filed not later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code, except as follows: (1) A proof of claim filed by a governmental unit is timely filed if it is filed not later than 180 days after the date of the order for relief. On motion of a governmen- tal unit before the expiration of such period and for cause shown, the court may extend the time for filing of a claim by the governmental unit. . . . . . Rule 3016. Filing of plan and disclosure statement in Chapter 9 municipality and Chapter 11 reorganiza- tion cases. (a) Identification of plan.-Every proposed plan and any modification thereof shall be dated and, in a chapter 11 case, 517rul3bk4 01-05-99 12:37:25 PGT * RULES 1272 RULES OF BANKRUPTCY PROCEDURE identified with the name of the entity or entities submitting or filing it. (b) Disclosure statement.-In a chapter 9 or 11 case, a dis- closure statement under § 1125 or evidence showing compli- ance with § 1126(b) of the Code shall be filed with the plan or within a time fixed by the court. Rule 4004. Grant or denial of discharge. . . . . . (c) Grant of discharge. (1) In a chapter 7 case, on expiration of the time fixed for filing a complaint objecting to discharge and the time fixed for filing a motion to dismiss the case pursuant to Rule 1017(e), the court shall forthwith grant the dis- charge unless: (a) the debtor is not an individual, (b) a complaint objecting to the discharge has been filed, (c) the debtor has filed a waiver under § 727(a)(10), (d) a motion to dismiss the case pursuant to Rule 1017(e) is pending, (e) a motion to extend the time for filing a com- plaint objecting to discharge is pending, or (f) the debtor has not paid in full the filing fee prescribed by 28 U. S. C. § 1930(a) and any other fee prescribed by the Judicial Conference of the United States under 28 U. S. C. § 1930(b) that is payable to the clerk upon the commencement of a case under the Code. (2) Notwithstanding Rule 4004(c)(1), on motion of the debtor, the court may defer the entry of an order grant- ing a discharge for 30 days and, on motion within that period, the court may defer entry of the order to a date certain. . . . . . 517rul3bk4 01-05-99 12:37:25 PGT * RULES RULES OF BANKRUPTCY PROCEDURE 1273 Rule 5005. Filing and transmittal of papers. (a) Filing. (1) Place of filing.-The lists, schedules, statements, proofs of claim or interest, complaints, motions, applica- tions, objections and other papers required to be filed by these rules, except as provided in 28 U. S. C. § 1409, shall be filed with the clerk in the district where the case under the Code is pending. The judge of that court may permit the papers to be filed with the judge, in which event the filing date shall be noted thereon, and they shall be forthwith transmitted to the clerk. The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices. (2) Filing by electronic means.-A court may by local rule permit documents to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A document filed by elec- tronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules, the Federal Rules of Civil Procedure made applicable by these rules, and § 107 of the Code. . . . . . Rule 7004. Process; service of summons, complaint. (a) Summons; service; proof of service.-Rule 4(a), (b), (c)(1), (d)(1), (e)­(j), (l), and (m) F. R. Civ. P. applies in adver- sary proceedings. Personal service pursuant to Rule 4(e)­ (j) F. R. Civ. P. may be made by any person at least 18 years of age who is not a party, and the summons may be delivered by the clerk to any such person. (b) Service by first class mail.-Except as provided in subdivision (h), in addition to the methods of service author- ized by Rule 4(e)­(j) F. R. Civ. P., service may be made within the United States by first class mail postage prepaid as follows: 517rul3bk4 01-05-99 12:37:25 PGT * RULES 1274 RULES OF BANKRUPTCY PROCEDURE (1) Upon an individual other than an infant or incom- petent, by mailing a copy of the summons and complaint to the individual's dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession. (2) Upon an infant or an incompetent person, by mail- ing a copy of the summons and complaint to the person upon whom process is prescribed to be served by the law of the state in which service is made when an action is brought against such a defendant in the courts of gen- eral jurisdiction of that state. The summons and com- plaint in that case shall be addressed to the person re- quired to be served at that person's dwelling house or usual place of abode or at the place where the person regularly conducts a business or profession. (3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association, by mailing a copy of the summons and complaint to the at- tention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one au- thorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant. (4) Upon the United States, by mailing a copy of the summons and complaint addressed to the civil process clerk at the office of the United States attorney for the district in which the action is brought and by mailing a copy of the summons and complaint to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or an agency of the United States not made a party, by also mailing a copy of the summons and complaint to that officer or agency. The court shall allow a reasonable time for service pursuant to this sub- division for the purpose of curing the failure to mail a copy of the summons and complaint to multiple officers, agencies, or corporations of the United States if the plaintiff has mailed a copy of the summons and complaint 517rul3bk4 01-05-99 12:37:26 PGT * RULES RULES OF BANKRUPTCY PROCEDURE 1275 either to the civil process clerk at the office of the United States attorney or to the Attorney General of the United States. (5) Upon any officer or agency of the United States, by mailing a copy of the summons and complaint to the United States as prescribed in paragraph (4) of this sub- division and also to the officer or agency. If the agency is a corporation, the mailing shall be as prescribed in paragraph (3) of this subdivision of this rule. The court shall allow a reasonable time for service pursuant to this subdivision for the purpose of curing the failure to mail a copy of the summons and complaint to multiple officers, agencies, or corporations of the United States if the plaintiff has mailed a copy of the summons and complaint either to the civil process clerk at the office of the United States attorney or to the Attorney General of the United States. If the United States trustee is the trustee in the case and service is made upon the United States trustee solely as trustee, service may be made as pre- scribed in paragraph (10) of this subdivision of this rule. (6) Upon a state or municipal corporation or other governmental organization thereof subject to suit, by mailing a copy of the summons and complaint to the per- son or office upon whom process is prescribed to be served by the law of the state in which service is made when an action is brought against such a defendant in the courts of general jurisdiction of that state, or in the absence of the designation of any such person or office by state law, then to the chief executive officer thereof. (7) Upon a defendant of any class referred to in para- graph (1) or (3) of this subdivision of this rule, it is also sufficient if a copy of the summons and complaint is mailed to the entity upon whom service is prescribed to be served by any statute of the United States or by the law of the state in which service is made when an action is brought against such a defendant in the court of gen- eral jurisdiction of that state. 517rul3bk4 01-05-99 12:37:26 PGT * RULES 1276 RULES OF BANKRUPTCY PROCEDURE (8) Upon any defendant, it is also sufficient if a copy of the summons and complaint is mailed to an agent of such defendant authorized by appointment or by law to receive service of process, at the agent's dwelling house or usual place of abode or at the place where the agent regularly carries on a business or profession and, if the authorization so requires, by mailing also a copy of the summons and complaint to the defendant as provided in this subdivision. (9) Upon the debtor, after a petition has been filed by or served upon the debtor and until the case is dismissed or closed, by mailing a copy of the summons and com- plaint to the debtor at the address shown in the petition or statement of affairs or to such other address as the debtor may designate in a filed writing and, if the debtor is represented by an attorney, to the attorney at the attorney's post-office address. (10) Upon the United States trustee, when the United States trustee is the trustee in the case and service is made upon the United States trustee solely as trustee, by mailing a copy of the summons and complaint to an office of the United States trustee or another place des- ignated by the United States trustee in the district where the case under the Code is pending. (c) Service by publication.-If a party to an adversary proceeding to determine or protect rights in property in the custody of the court cannot be served as provided in Rule 4(e)­(j) F. R. Civ. P. or subdivision (b) of this rule, the court may order the summons and complaint to be served by mail- ing copies thereof by first class mail, postage prepaid, to the party's last known address, and by at least one publication in such manner and form as the court may direct. (d) Nationwide service of process.-The summons and complaint and all other process except a subpoena may be served anywhere in the United States. (e) Summons: time limit for service.-If service is made pursuant to Rule 4(e)­(j) F. R. Civ. P. it shall be made by delivery of the summons and complaint within 10 days fol- 517rul3bk4 01-05-99 12:37:26 PGT * RULES RULES OF BANKRUPTCY PROCEDURE 1277 lowing issuance of the summons. If service is made by any authorized form of mail, the summons and complaint shall be deposited in the mail within 10 days following issuance of the summons. If a summons is not timely delivered or mailed, another summons shall be issued and served. ( f ) Personal jurisdiction.-If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service in accordance with this rule or the subdivisions of Rule 4 F. R. Civ. P. made applicable by these rules is effective to establish personal jurisdiction over the person of any defend- ant with respect to a case under the Code or a civil proceed- ing arising under the Code, or arising in or related to a case under the Code. ( g) [Abrogated]. (h) Service of process on an insured depository institu- tion.-Service on an insured depository institution (as de- fined in section 3 of the Federal Deposit Insurance Act) in a contested matter or adversary proceeding shall be made by certified mail addressed to an officer of the institution unless- (1) the institution has appeared by its attorney, in which case the attorney shall be served by first class mail; (2) the court orders otherwise after service upon the institution by certified mail of notice of an application to permit service on the institution by first class mail sent to an officer of the institution designated by the institu- tion; or (3) the institution has waived in writing its entitle- ment to service by certified mail by designating an offi- cer to receive service. Rule 8008. Filing and service. (a) Filing.-Papers required or permitted to be filed with the clerk of the district court or the clerk of the bankruptcy appellate panel may be filed by mail addressed to the clerk, but filing is not timely unless the papers are received by the 517rul3bk4 01-05-99 12:37:26 PGT * RULES 1278 RULES OF BANKRUPTCY PROCEDURE clerk within the time fixed for filing, except that briefs are deemed filed on the day of mailing. An original and one copy of all papers shall be filed when an appeal is to the district court; an original and three copies shall be filed when an appeal is to a bankruptcy appellate panel. The district court or bankruptcy appellate panel may require that addi- tional copies be furnished. Rule 5005(a)(2) applies to papers filed with the clerk of the district court or the clerk of the bankruptcy appellate panel if filing by electronic means is authorized by local rule promulgated pursuant to Rule 8018. . . . . . Rule 9006. Time. . . . . . (c) Reduction. . . . . . (2) Reduction not permitted.-The court may not reduce the time for taking action pursuant to Rules 2002(a)(7), 2003(a), 3002(c), 3014, 3015, 4001(b)(2), (c)(2), 4003(a), 4004(a), 4007(c), 8002, and 9033(b). . . . . . 517rul3cv1 01-05-99 12:38:00 PGT * RULES AMENDMENTS TO FEDERAL RULES OF CIVIL PROCEDURE The following amendments to the Federal Rules of Civil Procedure were prescribed by the Supreme Court of the United States on April 23, 1996, pursuant to 28 U. S. C. § 2072, and were reported to Congress by The Chief Justice on the same date. For the letter of transmittal, see post, p. 1280. The Judicial Conference report referred to in that letter is not reproduced herein. Note that under 28 U. S. C. § 2074, such amendments shall take effect no earlier than December 1 of the year in which they are transmitted to Congress unless otherwise provided by law. For earlier publication of the Federal Rules of Civil Procedure and amendments thereto, see 308 U. S. 645, 308 U. S. 642, 329 U. S. 839, 335 U. S. 919, 341 U. S. 959, 368 U. S. 1009, 374 U. S. 861, 383 U. S. 1029, 389 U. S. 1121, 398 U. S. 977, 401 U. S. 1017, 419 U. S. 1133, 446 U. S. 995, 456 U. S. 1013, 461 U. S. 1095, 471 U. S. 1153, 480 U. S. 953, 485 U. S. 1043, 500 U. S. 963, 507 U. S. 1089, and 514 U. S. 1151. 1279 517rul3cv2 01-05-99 12:38:00 PGT * RULES LETTER OF TRANSMITTAL Supreme Court of the United States washington, d. c. April 23, 1996 To the Senate and House of Representatives of the United States of America in Congress Assembled: By direction of the Supreme Court of the United States, I have the honor to submit to the Congress the amendments to the Federal Rules of Civil Procedure that have been adopted by the Supreme Court of the United States pursuant to Section 2072 of Title 28, United States Code. Accompanying these rules are excerpts from the report of the Judicial Conference of the United States containing the Advisory Committee Notes submitted to the Court for its consideration pursuant to Section 331 of Title 28, United States Code. Sincerely, (Signed) William H. Rehnquist Chief Justice of the United States 1280 517rul3cv3 01-05-99 12:38:00 PGT * RULES SUPREME COURT OF THE UNITED STATES april 23, 1996 Ordered: 1. That the Federal Rules of Civil Procedure for the United States District Courts be, and they hereby are, amended by including therein amendments to Civil Rules 5 and 43. [See infra, p. 1283.] 2. That the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 1996, and shall govern all proceedings in civil cases thereafter com- menced and, insofar as just and practicable, all proceedings in civil cases then pending. 3. That The Chief Justice be, and hereby is, authorized to transmit to the Congress the foregoing amendments to the Federal Rules of Civil Procedure in accordance with the provisions of Section 2072 of Title 28, United States Code. 1281 517rul3cv4 01-05-99 12:38:00 PGT * RULES AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE Rule 5. Service and filing of pleadings and other papers. . . . . . (e) Filing with the court defined.-The filing of papers with the court as required by these rules shall be made by filing them with the clerk of court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. A court may by local rule permit papers to be filed, signed, or verified by electronic means that are consistent with technical stand- ards, if any, that the Judicial Conference of the United States establishes. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices. Rule 43. Taking of testimony. (a) Form.-In every trial, the testimony of witnesses shall be taken in open court, unless a federal law, these rules, the Federal Rules of Evidence, or other rules adopted by the Supreme Court provide otherwise. The court may, for good cause shown in compelling circumstances and upon appro- priate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location. . . . . . 1283 517rul3cr1 01-05-99 12:38:24 PGT * RULES AMENDMENTS TO FEDERAL RULES OF CRIMINAL PROCEDURE The following amendments to the Federal Rules of Criminal Procedure were prescribed by the Supreme Court of the United States on April 23, 1996, pursuant to 28 U. S. C. § 2072, and were reported to Congress by The Chief Justice on the same date. For the letter of transmittal, see post, p. 1286. The Judicial Conference report referred to in that letter is not reproduced herein. Note that under 28 U. S. C. § 2074, such amendments shall take effect no earlier than December 1 of the year in which they are transmitted to Congress unless otherwise provided by law. For earlier publication of the Federal Rules of Criminal Procedure, and the amendments thereto, see 327 U. S. 821, 335 U. S. 917, 949, 346 U. S. 941, 350 U. S. 1017, 383 U. S. 1087, 389 U. S. 1125, 401 U. S. 1025, 406 U. S. 979, 415 U. S. 1056, 416 U. S. 1001, 419 U. S. 1136, 425 U. S. 1157, 441 U. S. 985, 456 U. S. 1021, 461 U. S. 1117, 471 U. S. 1167, 480 U. S. 1041, 485 U. S. 1057, 490 U. S. 1135, 495 U. S. 967, 500 U. S. 991, 507 U. S. 1161, 511 U. S. 1175, and 514 U. S. 1159. 1285 517rul3cr2 01-05-99 12:38:24 PGT * RULES LETTER OF TRANSMITTAL Supreme Court of the United States washington, d. c. April 23, 1996 To the Senate and House of Representatives of the United States of America in Congress Assembled: By direction of the Supreme Court of the United States, I have the honor to submit to the Congress the amendments to the Federal Rules of Criminal Procedure that have been adopted by the Supreme Court of the United States pursuant to Section 2072 of Title 28, United States Code. Accompanying these rules are excerpts from the report of the Judicial Conference of the United States containing the Advisory Committee Notes submitted to the Court for its consideration pursuant to Section 331 of Title 28, United States Code. Sincerely, (Signed) William H. Rehnquist Chief Justice of the United States 1286 517rul3cr3 01-05-99 12:38:24 PGT * RULES SUPREME COURT OF THE UNITED STATES april 23, 1996 Ordered: 1. That the Federal Rules of Criminal Procedure for the United States District Courts be, and they hereby are, amended by including therein amendments to Criminal Rule 32. [See infra, p. 1289.] 2. That the foregoing amendments to the Federal Rules of Criminal Procedure shall take effect on December 1, 1996, and shall govern all proceedings in criminal cases thereafter commenced and, insofar as just and practicable, all proceed- ings in criminal cases then pending. 3. That The Chief Justice be, and hereby is, authorized to transmit to the Congress the foregoing amendments to the Federal Rules of Criminal Procedure in accordance with the provisions of Section 2072 of Title 28, United States Code. 1287 517rul3cr4 01-05-99 12:38:24 PGT * RULES AMENDMENTS TO THE FEDERAL RULES OF CRIMINAL PROCEDURE Rule 32. Sentence and judgment. . . . . . (d) Judgment. . . . . . (2) Criminal forfeiture.-If a verdict contains a find- ing that property is subject to a criminal forfeiture, or if a defendant enters a guilty plea subjecting property to such forfeiture, the court may enter a preliminary order of forfeiture after providing notice to the defend- ant and a reasonable opportunity to be heard on the tim- ing and form of the order. The order of forfeiture shall authorize the Attorney General to seize the property subject to forfeiture, to conduct any discovery that the court considers proper to help identify, locate, or dispose of the property, and to begin proceedings consistent with any statutory requirements pertaining to ancillary hearings and the rights of third parties. At sentencing, a final order of forfeiture shall be made part of the sen- tence and included in the judgment. The court may in- clude in the final order such conditions as may be reason- ably necessary to preserve the value of the property pending any appeal. 1289 01-05-99 12:32:32 517BV$1301 Reporter's Note The next page is purposely numbered 1301. The numbers between 1289 and 1301 were intentionally omitted, in order to make it possible to publish in-chambers opinions with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports. 517us2ic2z 10-31-97 23:22:20 PAGES IC1301PGT OPINION OF INDIVIDUAL JUSTICE IN CHAMBERS NETHERLAND, WARDEN v. TUGGLE on application to vacate stay of execution No. A­910. Decided May 15, 1996 An application to vacate the Fourth Circuit's order staying respondent Tuggle's execution has been filed. However, there is no such stay in effect in this case. Although Tuggle asked the Fourth Circuit both to stay his execution and to stay issuance of its mandate in his case, the court order only stayed the issuance of its mandate. Chief Justice Rehnquist, Circuit Justice. Applicant has filed an application to vacate an order of the Court of Appeals for the Fourth Circuit staying the execu- tion of respondent Tuggle. It is my understanding, how- ever, that no such stay of execution is in effect. While Tug- gle asked the Court of Appeals both to stay his execution and to stay issuance of its mandate in his case, see Tuggle v. Netherland, 79 F. 3d 1386 (1996), the Court of Appeals' order only stayed the issuance of its mandate for a period of 30 days. Hence there is no stay of execution for me to vacate. 1301 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) I N D E X ABSTENTION. Remand order.-An abstention-based remand order is appealable under 28 U. S. C. § 1291; because damages, rather than equitable or discretion- ary relief, were sought here, District Court's remand order was an un- warranted application of abstention doctrine of Burford v. Sun Oil Co., 319 U. S. 315. Quackenbush v. Allstate Ins. Co., p. 706. ACTUAL ENUMERATION. See Constitutional Law, I. ADMIRALTY. 1. Proximate causation requirement.-Doctrines of legal or "proxi- mate" causation and "superseding cause" apply in admiralty tort and con- tract actions notwithstanding this Court's adoption of comparative fault principle in United States v. Reliable Transfer Co., 421 U. S. 397. Exxon Co., U. S. A. v. Sofec, Inc., p. 830. 2. Service of process-Federal Rule of Civil Procedure 4.-Rule 4 gov- erns manner and timing of service in federal actions, which are nonjuris- dictional matters of procedure, and thus it supersedes instruction in § 2 of Suits in Admiralty Act that process be served "forthwith." Henderson v. United States, p. 654. ADVERTISEMENTS. See Constitutional Law, V. AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967. See also Employee Retirement Income Security Act of 1974. Prima facie case-Replacement by someone outside protected age group.-A plaintiff claiming he was discharged in violation of ADEA does not have to show that he was replaced by someone outside protected age group in order to make out a prima facie case under framework established by McDonnell Douglas Corp. v. Green, 411 U. S. 792. O'Connor v. Con- solidated Coin Caterers Corp., p. 308. AGGRAVATING FACTORS WARRANTING DEATH PENALTY. See Constitutional Law, VIII. AGRICULTURAL LABORERS. See Labor, 2. ALABAMA. See Constitutional Law, II, 2, 3. ALCOHOL SALES. See Constitutional Law, V. 1303 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) 1304 INDEX APPEALS. See Abstention; Federal Courts, 1. APPORTIONMENT. See Constitutional Law, III, 1, 2. ARBITRATION. See Federal Arbitration Act. ARMED FORCES. See Constitutional Law, VIII. ASSOCIATIONAL STANDING. See Standing to Sue. BANKING. See National Bank Act of 1964; Pre-emption of State Law. BANKRUPTCY. Subordination of claims against estate.-A bankruptcy court may not equitably subordinate claims on a categorical basis in derogation of Con- gress' priorities scheme. United States v. Noland, p. 535. CAPITAL MURDER. See Constitutional Law, VIII; Stays. CENSUS CLAUSE. See Constitutional Law, I. CHICKEN PROCESSING PLANTS. See Labor, 2. CIVIL FORFEITURE OF PROPERTY. See Federal Courts, 2. CLAIM SUBORDINATION. See Bankruptcy. CLEAR AND CONVINCING EVIDENCE STANDARD. See Constitu- tional Law, II, 1. COLLECTIVE-BARGAINING AGREEMENTS. See Labor, 1. COLORADO. See Constitutional Law, III, 3. COMMERCE CLAUSE. See Constitutional Law, IX. COMPARATIVE FAULT DOCTRINE. See Admiralty, 1. COMPETENCE TO STAND TRIAL. See Constitutional Law, II, 1. CONCURRENT LIFE SENTENCES. See Criminal Law, 2. CONGRESSIONAL REDISTRICTING. See Constitutional Law, III, 1, 2. CONSTITUTIONAL LAW. See also Federal Courts, 1. I. Census Clause. 1990 census-"[A]ctual Enumeration."-Because it was reasonable to conclude that an "actual Enumeration" could best be achieved in 1990 census without a statistical adjustment designed to correct an undercount in initial enumeration, Secretary of Commerce's decision not to use that 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) INDEX 1305 CONSTITUTIONAL LAW-Continued. adjustment was well within constitutional bounds. Wisconsin v. City of New York, p. 1. II. Due Process. 1. Criminal trial-Presumption of competence.-An Oklahoma statute requiring that a defendant in a criminal case is presumed to be competent to stand trial unless he proves his incompetence by clear and convincing evidence violates due process. Cooper v. Oklahoma, p. 348. 2. Punitive damages-Excessive awards.-Where BMW failed to dis- close that it had repainted a new car before Gore bought it, $2 million in punitive damages awarded to Gore by an Alabama court was grossly excessive in violation of Fourteenth Amendment's Due Process Clause. BMW of North America, Inc. v. Gore, p. 559. 3. Res judicata-Parties to case.-Petitioners were deprived of Four- teenth Amendment due process when Alabama Supreme Court held that they were barred from challenging an allegedly unconstitutional county tax by a prior adjudication of tax in a case to which they were not parties. Richards v. Jefferson County, p. 793. III. Equal Protection of the Laws. 1. Redistricting plan-Narrow tailoring of reapportionment scheme.- North Carolina's congressional redistricting plan violates Fourteenth Amendment's Equal Protection Clause because State's reapportionment scheme is not narrowly tailored to serve a compelling state interest. Shaw v. Hunt, p. 899. 2. Redistricting plan-Racial gerrymanders.-Three-judge District Court judgment that Texas' majority-minority congressional Districts 18, 29, and 30 constitute racial gerrymanders in violation of Fourteenth Amendment is affirmed. Bush v. Vera, p. 952. 3. Repeal of laws banning discrimination on basis of sexual orien- tation.-"Amendment 2" to Colorado Constitution, which prohibits all state governmental action designed to protect status of persons based on their sexual orientation, violates Fourteenth Amendment's Equal Pro- tection Clause. Romer v. Evans, p. 620. IV. Export Clause. Federal taxes-Goods in export transit.-Export Clause does not per- mit imposition of a generally applicable, nondiscriminatory federal tax on goods in export transit. United States v. International Business Machines Corp., p. 843. V. Freedom of Speech. Advertisement ban-Liquor prices.-Rhode Island laws banning adver- tisement of retail liquor prices except at place of sale violate First Amend- 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) 1306 INDEX CONSTITUTIONAL LAW-Continued. ment and are not saved by Twenty-first Amendment. 44 Liquormart, Inc. v. Rhode Island, p. 484. VI. Right to Jury Trial. Patent construction-Disputed term of art.-Construction of a patent, including its terms of art, is a matter of law reserved entirely for court, and is not subject to a Seventh Amendment guarantee that a jury will determine any disputed term of art on which expert testimony is offered. Markman v. Westview Instruments, Inc., p. 370. VII. Searches and Seizures. Vehicle stops-Temporary detention of motorists.-Fourth Amend- ment's prohibition against unreasonable seizures does not require police to support temporary detention of motorists during stop of their vehicles with anything more than probable cause to believe they committed traffic violations. Whren v. United States, p. 806. VIII. Separation of Powers. Presidential authority-Promulgation of aggravating factors for sen- tencing of Armed Forces personnel.-President does not lack authority, under separation-of-powers doctrine, to promulgate aggravating factors that permit a court-martial to impose a death penalty upon an Armed Forces member convicted of murder. Loving v. United States, p. 748. IX. States' Immunity from Suit. Suits by Indian tribes-Indian Commerce Clause.-Eleventh Amend- ment prevents Congress from authorizing suits by Indian tribes against States to enforce legislation-here, Indian Gaming Regulatory Act-en- acted under Indian Commerce Clause. Seminole Tribe of Fla. v. Florida, p. 44. CONVENTIONS OF POLITICAL PARTIES. See Voting Rights Act of 1965. COUNTY TAXES. See Constitutional Law, II, 3. COURTS-MARTIAL. See Constitutional Law, VIII. COURTS OF APPEALS. See Federal Courts, 1. CREDIT CARDS. See National Bank Act of 1964. CREDITORS' CLAIMS. See Bankruptcy. CRIMINAL LAW. See also Constitutional Law, II, 1; Federal Courts; Federal Rules of Criminal Procedure, 2; Habeas Corpus; Stays. 1. Discovery-Selective prosecution based on race.-For a defendant to be entitled to discovery on a claim that he was singled out for prose- 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) INDEX 1307 CRIMINAL LAW-Continued. cution on basis of his race, he must make a threshold showing that Gov- ernment declined to prosecute similarly situated suspects of other races. United States v. Armstrong, p. 456. 2. Presumption against multiple punishments-Distribution of con- trolled substances.-Presumption against multiple punishments requires vacation of Rutledge's concurrent life sentences and either his convic- tion for conspiring to distribute controlled substances or his conviction for conducting a continuing criminal enterprise "in concert" with others. Rutledge v. United States, p. 292. DELEGATE REGISTRATION FEES. See Voting Rights Act of 1965. DE NOVO REVIEW. See Federal Courts, 1. DETENTION OF MOTORISTS. See Constitutional Law, VII. DISAVOWAL OF COLLECTIVE-BARGAINING AGREEMENTS. See Labor, 1. DISCRIMINATION BASED ON AGE. See Age Discrimination in Employment Act of 1967; Employee Retirement Income Security Act of 1974. DISCRIMINATION BASED ON RACE. See Constitutional Law, III, 1, 2; Criminal Law, 1. DISCRIMINATION BASED ON SEXUAL ORIENTATION. See Con- stitutional Law, III, 3. DISCRIMINATION IN PROSECUTION. See Criminal Law, 1. DISTRICT COURTS. See Federal Courts, 2. DRUGS. See Criminal Law, 2. DUE PROCESS. See Constitutional Law, II. EARLY RETIREMENT BENEFITS. See Employee Retirement In- come Security Act of 1974. ELEVENTH AMENDMENT. See Constitutional Law, IX. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974. Early retirement benefits-Waiver of employment claims.-ERISA does not prohibit an employer from conditioning receipt of early retire- ment benefits upon participants' waiver of employment claims; and 1986 amendments to ERISA and Age Discrimination in Employment Act of 1967 forbidding age discrimination in pension plans are not retroactive. Lockheed Corp. v. Spink, p. 882. 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) 1308 INDEX EMPLOYER AND EMPLOYEES. See Age Discrimination in Employ- ment Act of 1967; Employee Retirement Income Security Act of 1974; Labor. EMPLOYMENT DISCRIMINATION. See Age Discrimination in Em- ployment Act of 1967; Employee Retirement Income Security Act of 1974. EQUAL PROTECTION OF THE LAWS. See Constitutional Law, III. EXPORT CLAUSE. See Constitutional Law, IV. FARMING. See Labor, 2. FEDERAL ARBITRATION ACT. State law prohibition on arbitration-Pre-emption.-A Montana law placing threshold limitations specifically and solely on arbitration pro- visions conflicts with § 2 of Federal Arbitration Act and is therefore pre- empted. Doctor's Associates, Inc. v. Casarotto, p. 681. FEDERAL COURTS. 1. Courts of appeals-Standard of review-Investigatory stops and warrantless searches.-An appeals court should review de novo a trial court's determinations as to reasonable suspicion to support an investi- gatory stop and probable cause to make a warrantless search. Ornelas v. United States, p. 690. 2. District courts-Power to strike pleadings.-A district court may not strike a claimant's filings in a civil forfeiture suit and grant summary judgment against him for failing to appear in a related criminal prose- cution. Degen v. United States, p. 820. FEDERAL HABEAS CORPUS RULES. See Habeas Corpus. FEDERAL RULES OF APPELLATE PROCEDURE. Amendments to Rules, p. 1255. FEDERAL RULES OF BANKRUPTCY PROCEDURE. Amendments to Rules, p. 1263. FEDERAL RULES OF CIVIL PROCEDURE. See also Admiralty, 2. Amendments to Rules, p. 1279. FEDERAL RULES OF CRIMINAL PROCEDURE. 1. Amendments to Rules, p. 1285. 2. Judgment of acquittal-Timeliness of motion.-District Court had no authority to grant petitioner's motion for judgment of acquittal filed one day outside 7-day time limit set forth in Rule 29(c). Carlisle v. United States, p. 416. 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) INDEX 1309 FEDERAL-STATE RELATIONS. See Constitutional Law, IX; Pre- emption of State Law. FEDERAL TAXES. See Constitutional Law, IV. FIRST AMENDMENT. See Constitutional Law, V. FLORIDA. See Constitutional Law, IX; Indian Gaming Regulatory Act; Pre-emption of State Law. FORFEITURE OF PROPERTY. See Federal Courts, 2. FOURTEENTH AMENDMENT. See Constitutional Law, II; III; VII. FREEDOM OF SPEECH. See Constitutional Law, V. GAMING LAWS. See Constitutional Law, IX; Indian Gaming Regu- latory Act. HABEAS CORPUS. See also Stays, 1. Dismissal of petition.-Eleventh Circuit erred in dismissing a first fed- eral habeas corpus petition for special ad hoc "equitable" reasons not en- compassed within relevant statutes, Federal Habeas Corpus Rules, and prior precedents. Lonchar v. Thomas, p. 314. IMMUNITY FROM SUIT. See Constitutional Law, IX. INDIAN COMMERCE CLAUSE. See Constitutional Law, IX. INDIAN GAMING REGULATORY ACT. See also Constitutional Law, IX. Enforcement-Suit against state officials.-Doctrine of Ex parte Young, 209 U. S. 123, cannot be used to enforce Act's provisions-which require States to negotiate in good faith with Indian tribes toward a compact allow- ing certain gaming activities-against state officials. Seminole Tribe of Fla. v. Florida, p. 44. IN FORMA PAUPERIS. See Supreme Court, 6. INSURANCE SALES. See Pre-emption of State Law. INVESTIGATORY STOPS. See Federal Courts, 1. JURY TRIALS. See Constitutional Law, VI. LABOR. See also Standing to Sue. 1. National Labor Relations Act-Unfair labor practice-Disavowal of a collective-bargaining agreement.-An employer disavowing a labor contract because of a good-faith doubt about union's majority status at time contract was made, when doubt arises from facts known to employer 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) 1310 INDEX LABOR-Continued. before union accepted its contract offer, commits an unfair labor practice. Auciello Iron Works, Inc. v. NLRB, p. 781. 2. National Labor Relations Act-Worker classification-"Live-haul" crews.-National Labor Relations Board properly classified "live-haul" crews-teams that collect broiler chickens from independent growers for slaughter at a processing plant-as covered employees rather than ag- ricultural laborers exempt from NLRA. Holly Farms Corp. v. NLRB, p. 392. LATE-PAYMENT FEES. See National Bank Act of 1964. LIFE SENTENCES. See Criminal Law, 2. LIQUOR SALES. See Constitutional Law, V. LIVE-HAUL CREWS. See Labor, 2. MCCARRAN-FERGUSON ACT. See Pre-emption of State Law. MONTANA. See Federal Arbitration Act. MOTORIST DETENTION. See Constitutional Law, VII. MULTIPLE PUNISHMENTS. See Criminal Law, 2. MURDER. See Constitutional Law, VIII; Stays. NATIONAL BANK ACT OF 1964. Credit cards-Late-payment fees.-Title 12 U. S. C. § 85, a provision of Act, authorizes a national bank to charge credit card late-payment fees that are lawful in bank's home State but prohibited in State where card- holders reside. Smiley v. Citibank (South Dakota), N. A., p. 735. NATIONAL LABOR RELATIONS ACT. See Labor. NORTH CAROLINA. See Constitutional Law, III, 1. OKLAHOMA. See Constitutional Law, II, 1. PATENTS. See Constitutional Law, VI. PENSION PLANS. See Employee Retirement Income Security Act of 1974. POLITICAL PARTY CONVENTIONS. See Voting Rights Act of 1965. POLL TAXES. See Voting Rights Act of 1965. POPULATION OF UNITED STATES. See Constitutional Law, I. PRECLEARANCE OF CONVENTION DELEGATE REGISTRATION FEES. See Voting Rights Act of 1965. 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) INDEX 1311 PRE-EMPTION OF STATE LAW. See Federal Arbitration Act. Federal banking law-National banks' selling of insurance.-A fed- eral statute that permits national banks to sell insurance in small towns pre-empts a Florida statute that prohibits them from doing so; federal statute falls within exception to McCarran-Ferguson Act's special anti- pre-emption rule. Barnett Bank of Marion Cty., N. A. v. Nelson, p. 25. PRESIDENTIAL POWERS. See Constitutional Law, VIII. PRICE ADVERTISING BANS. See Constitutional Law, V. PRIMA FACIE CASES OF AGE DISCRIMINATION. See Age Dis- crimination in Employment Act of 1967. PROBABLE-CAUSE DETERMINATIONS. See Constitutional Law, VII. PROXIMATE CAUSATION. See Admiralty, 1. PRUDENTIAL STANDING REQUIREMENTS. See Standing to Sue. PUNITIVE DAMAGES. See Constitutional Law, II, 2. RACIAL DISCRIMINATION. See Constitutional Law, III, 1, 2; Crimi- nal Law, 1. REDISTRICTING PLANS. See Constitutional Law, III, 1, 2. REPETITIOUS FILINGS. See Supreme Court, 6. RES JUDICATA. See Constitutional Law, II, 3. RETIREMENT BENEFITS. See Employee Retirement Income Secu- rity Act of 1974. RHODE ISLAND. See Constitutional Law, V. RIGHT TO JURY TRIAL. See Constitutional Law, VI. RIGHT TO VOTE. See Constitutional Law, III, 1, 2; Voting Rights Act of 1965. SEARCHES AND SEIZURES. See Constitutional Law, VII; Fed- eral Courts, 1. SEGREGATION OF VOTERS BASED ON RACE. See Constitutional Law, III, 1, 2. SELECTIVE PROSECUTION. See Criminal Law, 1. SENTENCING. See Criminal Law, 2. SEPARATION OF POWERS. See Constitutional Law, VIII. 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) 1312 INDEX SERVICE OF PROCESS. See Admiralty, 2. SEVENTH AMENDMENT. See Constitutional Law, VI. SEXUAL ORIENTATION DISCRIMINATION. See Constitutional Law, III, 3. SOUTH DAKOTA. See National Bank Act of 1964. STANDING TO SUE. Suit by union on behalf of its members.-Third prong of associational standing test-that neither claim asserted nor relief requested requires participation of individual members in lawsuit-is prudential; thus Con- gress had authority to abrogate that prong's bar to suit and permit a union to sue for damages on behalf of its members for violations of Worker Adjustment and Retraining Notification Act. Food and Commercial Work- ers v. Brown Group, Inc., p. 544. STATES' IMMUNITY FROM SUIT. See Constitutional Law, IX. STAYS. 1. Stay of execution-Habeas corpus petition.-Application to vacate Eighth Circuit's stay of Williams' execution is granted, given District Court's careful treatment of Williams' claims in denying his third habeas petition, implausibility of those claims, and Circuit's failure to reveal its grounds for relief. Bowersox v. Williams, p. 345. 2. Stay of execution.-Since no stay of execution is in effect in this case, there is nothing to vacate (Rehnquist, C. J., in chambers). Netherland v. Tuggle, p. 1301. SUITS IN ADMIRALTY ACT. See Admiralty, 2. SUPERSEDING CAUSE DOCTRINE. See Admiralty, 1. SUPREME COURT. 1. Proceedings in memory of Chief Justice Burger, p. v. 2. Amendments to Federal Rules of Appellate Procedure, p. 1255. 3. Amendments to Federal Rules of Bankruptcy Procedure, p. 1263. 4. Amendments to Federal Rules of Civil Procedure, p. 1279. 5. Amendments to Federal Rules of Criminal Procedure, p. 1285. 6. In forma pauperis-Repetitious filings.-Abusive filer is prospec- tively denied leave to proceed in forma pauperis on all certiorari petitions in noncriminal matters. Shieh v. Kakita, p. 343. TAXES. See Constitutional Law, II, 3; IV. TERMS OF ART. See Constitutional Law, VI. TEXAS. See Constitutional Law, III, 2. 517ind$$BV 01-28-99 09:02:28 PGT*INDBV (Bound Volume) INDEX 1313 TIMELINESS OF MOTIONS. See Federal Rules of Criminal Proce- dure, 2. TRAFFIC VIOLATIONS. See Constitutional Law, VII. TWENTY-FIRST AMENDMENT. See Constitutional Law, V. UNFAIR LABOR PRACTICES. See Labor, 1. UNION LAWSUITS ON BEHALF OF MEMBERS. See Standing to Sue. UNIONS. See Labor, 1. VEHICLE STOPS. See Constitutional Law, VII. VIRGINIA. See Voting Rights Act of 1965. VOTING RIGHTS ACT OF 1965. See also Constitutional Law, III, 1, 2. Preclearance-Party convention registration fee.-Dismissal of rejected nominating convention delegates' Voting Rights Act suit against Virginia Republican Party on grounds that a mandatory delegate registration fee did not have to be precleared and could not be challenged as a poll tax by private suit is reversed. Morse v. Republican Party of Va., p. 186. WARRANTLESS SEARCHES. See Federal Courts, 1. WISCONSIN. See Constitutional Law, I. WORDS AND PHRASES. 1. "Agricultural laborer." § 2(3), National Labor Relations Act, 29 U. S. C. § 152(3). Holly Farms Corp. v. NLRB, p. 392. 2. "Interest." National Bank Act of 1964, 12 U. S. C. § 85. Smiley v. Citibank (South Dakota), N. A., p. 735. WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT. See Standing to Sue.