Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

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P R E L I M I N A R Y P R I N T
Vol. 591 (Pp. 464–986; 1024–1081)
UNITED STATES REPORTS
Part 2
Volume 591 U. S. - Part 2
Pages 464–986; 1024–1081
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 30 Through October 2, 2020
End of Term
CHRISTINE LUCHOK FALLON
reporter of decisions
N O T I C E : This preliminary print is subject to formal revision before the
bound volume is published. Users are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
For sale by the Superintendent of Documents, U. S. Government Publishing Offce
Washington, D.C. 20402

J U S T I C E S
of the
S U P R E M E C O U R T
during the time of these reports*
JOHN G. ROBERTS, Jr.,Chief Justice.
CLARENCE THOMAS, Associate Justice.
RUTH BADER GINSBURG, Associate Justice.
1
STEPHEN BREYER, Associate Justice.
SAMUEL A. ALITO, Jr., Associate Justice.
SONIA SOTOMAYOR, Associate Justice.
ELENA KAGAN, Associate Justice.
NEIL M. GORSUCH, Associate Justice.
BRETT M. KAVANAUGH, Associate Justice.
retired
SANDRA DAY O’CONNOR, Associate Justice.
ANTHONY M. KENNEDY, Associate Justice.
DAVID H. SOUTER, Associate Justice.
ofcers of the court
WILLIAM P. BARR, Attorney General.
NOEL J. FRANCISCO, Solicitor General.
2
JEFFREY B. WALL, Acting Solicitor General.
3
SCOTT S. HARRIS, Clerk.
CHRISTINE LUCHOK FALLON, Reporter of
Decisions.
4
DERRICK LINDSEY, Acting Reporter of Decisions.
5
PAMELA TALKIN, Marshal.
6
RICHARD NELSON, Acting Marshal.
7
LINDA S. MASLOW, Librarian.
* For notes, see p.ii.
i

NOTES
1
Justice Ginsburg died at her home in Washington, D. C. on Septem-
ber 18, 2020. A private interment service was held at the Arlington Na-
tional Cemetary in Arlington, VA., on September 29, 2020.
2
Solicitor General Francisco resigned effective July 3, 2020
3
Mr. Wall became Acting Solicitor effective July 3, 2020.
4
Ms. Fallon retired as Reporter of Decisions on September 25, 2020.
See post, p. v.
5
Mr. Lindsey was appointed Acting Reporter of Decisions effective Sep-
tember 25, 2020.
6
Ms. Talkin retired as Marshal effective July 31, 2020. See post, p. vii.
7
Mr. Nelson was appointed Acting Marshal effective August 30, 2020.
ii

SUPREME COURT OF THE UNITED STATES
Allotment of Justices
It is ordered that the following allotment be made of the Chief
Justice and Associate Justices of this Court among the circuits,
pursuant to Title 28, United States Code, Section 42, and that such
allotment be entered of record, effective October 19, 2018, viz.:
For the District of Columbia Circuit, John G. Roberts, Jr.,
Chief Justice.
For the First Circuit, Stephen Breyer, Associate Justice.
For the Second Circuit, Ruth Bader Ginsburg, Associate
Justice.
For the Third Circuit, Samuel A. Alito, Jr., Associate Justice.
For the Fourth Circuit, John G. Roberts, Jr., Chief Justice.
For the Fifth Circuit, Samuel A. Alito, Jr., Associate Justice.
For the Sixth Circuit, Sonia Sotomayor, Associate Justice.
For the Seventh Circuit, Brett M. Kavanaugh, Associate
Justice.
For the Eighth Circuit, Neil M. Gorsuch, Associate Justice.
For the Ninth Circuit, Elena Kagan, Associate Justice.
For the Tenth Circuit, Sonia Sotomayor, Associate Justice.
For the Eleventh Circuit, Clarence Thomas, Associate Justice.
For the Federal Circuit, John G. Roberts, Jr., Chief Justice.
October 19, 2018.
(For next previous allotment, see 586 U. S., Pt. 1, p. iii.)
iii

RETIREMENT OF REPORTER OF DECISIONS
Supreme Court of the United States
THURSDAY, JULY 9, 2020
Present: Chief Justice Roberts, Justice Thomas,
Justice Ginsburg, Justice Breyer, Justice Alito,
Justice Sotomayor, Justice Kagan, Justice Gorsuch,
and Justice Kavanaugh.
The Chief Justice said:
I also note that our Reporter of Decisions, Christine Lu-
chok Fallon, has announced her retirement, effective Sep-
tember 25th of this year. Ms. Fallon has served as Reporter
for nine years and is the frst woman to hold the position.
She has overseen the publication of nearly 30 volumes of the
Supreme Court Reports. Ms. Fallon, we thank you for your
service, which you have performed with exemplary diligence
and skill.
v

RETIREMENT OF MARSHAL
Supreme Court of the United States
THURSDAY, JULY 9, 2020
Present: Chief Justice Roberts, Justice Thomas,
Justice Ginsburg, Justice Breyer, Justice Alito,
Justice Sotomayor, Justice Kagan, Justice Gorsuch,
and Justice Kavanaugh.
The Chief Justice said:
Our Marshal, Pamela Talkin, who has sat next to the
Bench for the past 19 years and has heard more than 1,300
arguments, has announced her retirement, effective July 31st
of this year. Marshal Talkin also is the frst woman to hold
the position. The Marshal of the Court is responsible for
supervising 260 employees and managing many critical func-
tions of the Court, including overseeing security and main-
taining the Building and grounds. Marshal Talkin, we
thank you for your exceptional service to the Court.
vii

I N D E X
(Vol. 591 U. S., Part 2)
ADMINISTRATI V E PROCEDURE ACT. See Patient Protection
and Affordable Care Act of 2010.
AGENCY RULEMAKING. See Patient Protection and Affordable
Care Act of 2010.
ARTICLE II. See Constitutional Law; Presidential Elections.
CONGRESSIONAL SUBPOENAS. See Separation of Powers.
CONSTITUTIONAL LAW. See also Separation of Powers.
Free exercise of religion—Ministerial exception—Religious schools.—
First Amendment's Religion Clauses foreclose adjudication of employment-
discrimination claims of Catholic school teachers Morrissey-Berru and
Biel. Our Lady of Guadalupe School v. Morrissey-Berru, p. 732.
Free exercise of religion—Religious schools—State funding.—Applica-
tion of Montana Constitution's “no-aid” provision to a state program pro-
viding tuition assistance to parents who send their children to private
schools discriminated against religious schools and families whose children
attend or hope to attend them in violation of Federal Constitution's Free
Exercise Clause. Espinoza v. Montana Dept. of Revenue, p. 464.
State-issued subpoena—President of the United States—No categorical
immunity.—Article II and Supremacy Clause do not categorically pre-
clude, or require a heightened standard for, issuance of a state criminal
subpoena to a sitting President. Trump v. Vance, p. 786.
CONSUMER PERCEPTION EVIDENCE. See Trademark Law.
CONSUMER PROTECTION. See Telephone Consumer Protection
Act.
CRIMINAL LAW. See Federal Indian Law.
CRIMINAL SUBPOENAS. See Constitutional Law.
DEATH PENALTY.
Federal executions—Stay standards.—District Court's order prelimi-
narily enjoining executions of four federal prisoners is vacated. Barr v.
Lee, p. 979.
ix

x INDEX
EIGHTH AMENDMENT. See Death Penalty.
ELECTOR
AL COLLEGE. See Presidential Elections.
EMPLOYMENT DISCRIMINATION. See Constitutional Law.
FEDERAL EXECUTIONS. See Death Penalty.
FEDERAL INDIAN LAW.
Indian country—Creek Reservations—Major Crimes Act.—Land in
Northeastern Oklahoma reserved for Creek Nation since 19th century re-
mains “Indian country” for purposes of Major Crimes Act, which places
certain crimes under federal jurisdiction if they were committed by “[a]ny
Indian” within “the Indian country.” 18 U. S. C. § 1153(a). McGirt v.
Oklahoma, p. 894.
FEDERAL JURISDICTION. See Federal Indian Law.
FEDERAL PRISONERS. See Death Penalty.
FIRST AMENDMENT. See Constitutional Law; Telephone Con-
sumer Protection Act.
FREEDOM OF SPEECH. See Telephone Consumer Protection Act.
FREE EXERCISE OF RELIGION. See Constitutional Law.
GENERICNESS. See Trademark Law.
“INDIAN COUNTRY.” See Federal Indian Law.
INDIAN RESERVATIONS. See Federal Indian Law.
INSURANCE COVERAGE OF CONTRACEPTIVES. See Patient
Protection and Affordable Care Act of 2010.
LANHAM ACT. See Trademark Law.
MAJOR CRIMES ACT. See Federal Indian Law.
MINISTERIAL EXCEPTION. See Constitutional Law.
NOTICE AND COMMENT RULEMAKING. See Patient Protection
and Affordable Care Act of 2010.
PAROCHIAL SCHOOLS. See Constitutional Law.
PATIENT PROTECTION AND AFFORDABLE CARE ACT OF 2010.
ACA contraceptive mandate—Religious/moral exemptions—Notice
and comment satisfed.—Departments of Health and Human Services,
Labor, and Treasury had authority under Patient Protection and Afford-
able Care Act of 2010 to promulgate rules exempting employers with reli-
gious or moral objections from providing contraceptive coverage to their

INDEX xi
P
ATIENT PROTECTION AND AFFORDABLE CARE ACT OF 2010—
Continued.
employees; and those rules satisfy Administrative Procedure Act's notice
requirements.
Little Sisters of the Poor Saints Peter and Paul Home v.
Pennsylvania, p. 657.
PRELIMINARY INJUNCTIONS. See Death Penalty.
PRESIDENTIAL ELECTIONS.
Electoral College—Faithless electors—State en forcement.—State may
enforce an elector's pledge to support his party's nominee—and state vot-
ers' choice—for President. Chiafalo v. Washington, p. 578.
PRESIDENTIAL IMMUNITY. See Constitutional Law.
PRESIDENTIAL RECORDS. See Separation of Powers.
RELIGIOUS DISCRIMINATION. See Constitutional Law.
RELIGIOUS EXEMPTIONS. See Patient Protection and Afford-
able Care Act of 2010.
ROBOCALLS. See Telephone Consumer Protection Act. See Tele-
phone Consumer Protection Act.
SECONDARY MEANING. See Trademark Law.
SEPARATION OF POW ERS. See also Constitutional Law.
Congressional subpoenas——President of the United States—Separa-
tion of powers.—Courts below did not take adequate account of signifcant
separation of powers concerns implicated by congressional subpoenas for
President's information. Trump v. Mazars USA, LLP, p. 848.
SEVERABILITY. See Telephone Consumer Protection Act.
STATE AUTHORITY OVER ELECTORS. See Presidential Elections.
STATE CONSTITUTIONAL LAW. See Constitutional Law.
STAY/VACATUR STANDARDS. See Federal Indian Law.
STRICT SCRUTINY. See Constitutional Law.
SUPREMACY CLAUSE. See Constitutional Law.
SUPREME COURT.
1. Notation of death of Justice Ginsburg, p. ii.
2. Retirement of Christine Luchok Fallon as Reporter, p. v.
3. Retirement of Pamela T. Talkin as Marshal, p. vii.
TELEMARKETING. See Telephone Consumer Protection Act.

xii INDEX
TELEPHONE CONSUMER PROTECTION ACT.
F
r e e d o m o f S p e e c h — Co n t e n t - b a s e d e x c e p t i o n — R o b o c a l l s —
Government-debt carveout—Severability.—Fourth Circuit's judgment—
that roboca l l restr ic ti on's gover nment-debt excepti on in 47 U. S. C.
§ 227(b)(1)(A)(iii) violates First Amendment but is severable from remain-
der of statute—is affrmed. Barr v. American Assn. of Political Consult-
ants, Inc., p. 610.
TRADEMARK LAW.
Trademarks—Consumer perception—Primary signifcance—Register-
ability.—Term styled “generic.com” is a generic name for a class of goods
or services—and thus ineligible for federal trademark protection—only if
term has that meaning to consumers. Patent and Trademark Offce v.
Booking.com B. V., p. 549.
WORDS AND PHRASES.
“Indian country.” Major Crimes Act, 18 U. S. C. § 1153(a). McGirt v.
Oklahoma, p. 894.

CUMULATIV E TABLE OF CA SES REPORTED
(Vol. 591 U. S., Parts 1 and 2)
Notes:
This volume provides the permanent United States Reports citation for
all reported cases. Cases reported before page 1001 are those decided
with opinions of the Court or decisions per curiam. Cases reported on
page 1001 et seq. are those in which orders were entered. Although the
Table of Cases Reported does not list orders denying a petition for writ
of certiorari, such orders are included chronologically in this volume.
The syllabus in a case constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the convenience
of the reader. See United States v. Detroit Timber & Lumber Co., 200
U. S. 321, 337 (1906).
A list of counsel who argued or fled briefs in a reported case, and who
were members of the Court's Bar at the time the case was argued, are
included in the United States Reports along with the Court's opinion in
the case.
Page
Abbott; Texas Democratic Party v. . . . . . . . . . . . . . . . . . . . . . 1013,1025
Agency for Int'l Dev. v. Alliance for Open Society Int'l, Inc. . . . . 430
Ahlman; Barnes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Alabama Secretary of State v. People First of Ala. . . . . . . . . . . . 1024
Alameda Health System; Drevaleva v. . . . . . . . . . . . . . . . . . . . . . 1067
Albritton v. Brnovich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Albritton v. Shinn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Alcaraz-Enriquez; Barr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Allen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Alliance for Open Society Int'l, Inc.; Agency for Int'l Dev. v. . . . . 430
American Assn. of Political Consultants, Inc.; Barr v. . . . . . . . . . 610
AMG Capital Management, LLC v. Federal Trade Comm'n . . . . . 1028
Angleton Independent School Dist.; Davis v. . . . . . . . . . . . . . . . . 1013
Antonacci; Toth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
AQ Holdings, LLC; Hirshauer v. . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Arizona Republican Party v. Democratic National Committee . . . 1081
Armstrong v. School Dist. of Philadelphia . . . . . . . . . . . . . . . . . . 1079
Armstrong v. Wilson County, North Carolina . . . . . . . . . . . . . . . . 1066
xiii

xiv T
ABLE OF CASES REPORTED
Page
Army Corps of Engineers v. Northern Plains Resource Council 1026
Attorney General v. Purkey . . . . . . . . . . . . . . . . . . . . . . . . . . 1034,1041
Berean; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Bey v. Doughtery Cty. State Court . . . . . . . . . . . . . . . . . . . . . . . 1023
Ar
unachalam v. Exxon Mobil Corp. . . . . . . . . . . . . . . . . . . . . . . . 1014
Arunachalam v. Intuit, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Arunachalam v. Lyft, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Arunachalam v. Uber Technologies, Inc. . . . . . . . . . . . . . . . . . . . . 1015
Aspen Skiing Co.; Mulcahy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Attorney General v. Alcaraz-Enriquez . . . . . . . . . . . . . . . . . . . . . 1080
Attorney General v. American Assoc. of Political Consultants, Inc. 610
Attorney General; Bourgeois v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Attorney General; Bugarenko v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Attorney General v. Lee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Attorney General v. Ming Dai . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Attorney General; Ndoromo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Attorney General; Peterson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Attorney General of Ariz.; Albritton v. . . . . . . . . . . . . . . . . . . . . . 1002
Attorney General of Ariz. v. Democratic National Committee . . . 1080
Attorney General of Ariz.; Ibeabuchi v. . . . . . . . . . . . . . . . . . . . . 1001
Aviation; Hoskins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Baca; Colorado Department of State v. . . . . . . . . . . . . . . . . . . . . . 655
Bagahpour; Weatherspoon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Ball v. Marion, Ill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Ballard v. Clark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Bankers Life & Casualty Co.; Gough v. . . . . . . . . . . . . . . . . . . . . 1079
Bank of New York Mellon; Dawson v. . . . . . . . . . . . . . . . . . . . . . 1067
Bank of New York Mellon; Ruttkamp v. . . . . . . . . . . . . . . . . . . . . 1076
Banks v. Waffe House, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Barnard; Truong v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Barnes v. Ahlman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1068
Barr v. Alcaraz-Enriquez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Barr v. American Assn. of Political Consultants, Inc. . . . . . . . . . . 610
Barr; Bourgeois v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Barr; Bugarenko v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Barr v. Lee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Barr v. Ming Dai . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Barr; Ndoromo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Barr; Peterson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Barr v. Purkey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034,1041
Beggs v. Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Bell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Bello v. Stansell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Bentley v.
Oklahoma. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027

T
ABLE OF CASES REPORTED
xv
Page
Bey; McKinley v. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Booking.com B. V. v. Patent and Trademark Offce . . . . . . . . . 549,1024
CIC Services, LLC v. Internal Revenue Service . . . . . . . . . . 1075,1079
Bey v. Weaver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Blaher, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Boston Univ. School of Medicine; Zavaglia v. . . . . . . . . . . . . . . . . 1067
Bourgeois v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Box v. Planned Parenthood of Ind. & Kentucky, Inc. . . . . . . . . . . 1024
BP p. l. c. v. Mayor and City Council of Baltimore . . . . . . . . . . . . 1080
Bridges v. Gray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Brnovich; Albritton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Brnovich v. Democratic National Committee . . . . . . . . . . . . . . . . 1080
Brnovich; Ibeabuchi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Brooks v. Foster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Brownlee v. Hearns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Bugarenko v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Cabezas v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
California; Department of Health and Human Services v. . . . . . . 1027
California; Little Sisters of the Poor v. . . . . . . . . . . . . . . . . . . . . . 1027
California; Lopez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
California; March for Life Ed. and Defense Fund v. . . . . . . . . . . . 1027
California; Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
California v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
California; Texas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Calvary Chapel Dayton Valley v. Sisolak . . . . . . . . . . . . . . . . . . . 1042
Candelaria v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Cargill, Inc. v. Doe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Carney; Talbert v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Carr, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Carson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Chantharath v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Cheeks v. Joyner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Chiafalo v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578
Children's Corner Daycare; Lovell v. . . . . . . . . . . . . . . . . . . . . . . 1023
Christner; Hockaday v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
CitiMortgage, Inc.; Vinarov v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
City. See name of city.
Clark; Ballard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Clarno v. People Not Politicians Ore. . . . . . . . . . . . . . . . . . . . . . . 1073
Cole v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Collins v. D. R. Horton-Texas, Ltd. . . . . . . . . . . . . . . . . . . . . . . . . 1076
Collins v. Mnuchin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028,1074
Collins; Mnuchin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028,1074
Colorado Dept. of State v. Baca . . . . . . . . . . . . . . . . . . . . . . . . . . 655

xvi T
ABLE OF CASES REPORTED
Page
Commissioner, Ind. Dept. of Health v. Planned Parenthood .
. . . . 1024
Commissioner of Internal Revenue. See Commissioner.
Corrections Commissioner. See name of commissioner.
Director of penal or correctional institution. See name or title
Committees of the U. S. House of Representatives v. Trump . . . . 1042
Common Cause Rhode Island; Republican National Committee v. 1074
Commonwealth. See name of Commonwealth.
Conrad v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Consumer Financial Protection Bureau; Seila Law LLC v. . . . . . 197
CorVel Enterprise Co.; Webster v. . . . . . . . . . . . . . . . . . . . . . . . . 1067
Costa v. Pereira . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
County. See name of county.
Credit Bureau Center, LLC; Federal Trade Comm'n v. . . . . . . . . 1028
Da Costa v. Pereira . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Dai; Barr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Dalen v. Federal National Mortgage Assn. . . . . . . . . . . . . . . . . . . 1067
Davis, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Davis v. Angleton Independent School Dist. . . . . . . . . . . . . . . . . . 1013
Davis v. Eppinger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Davis; Jaramillo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Davis v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Dawson v. Bank of New York Mellon . . . . . . . . . . . . . . . . . . . . . . 1067
DeAtley v. Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
DeCarlo, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Dellinger v. Tennessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
de Maison v. SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Democratic National Committee; Arizona Republican Party v. . . . 1081
Democratic National Committee; Brnovich v. . . . . . . . . . . . . . . . . 1080
Department of Health and Human Services v. California . . . . . . . 1027
Department of Homeland Security v. Regents of Univ. of Cal. . . . 1
Department of Homeland Security v. Thuraissigiam . . . . . . . . . . . 103
Department of Justice v. House Committee on the Judiciary . . . . 1025
DeSantis, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
DeSantis; Raysor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
DeWine; Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
of director.
Doe; Cargill, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
DuPage Legal Assistance Foundation; Mohammed v. . . . . . . . . . . 1023
El Bey v. Doughtery Cty. State Court . . . . . . . . . . . . . . . . . . . . . 1023
Doe; Nestle USA, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Doughtery Cty. State Court; El Bey v. . . . . . . . . . . . . . . . . . . . . . 1023
Douse v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Drevaleva v. Alameda Health System . . . . . . . . . . . . . . . . . . . . . 1067
Duguid; Facebook, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028

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Page
El Bey v. Weaver .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Energy Future Holdings Corp.; English v.
Governor of Tex.; Texas Democratic Party v. . . . . . . . . . . . . . 1013,1025
. . . . . . . . . . . . . . . . . . 1067
English v. Energy Future Holdings Corp. . . . . . . . . . . . . . . . . . . 1067
Eppinger; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Ernst; Kelsay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Errington; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Erwin, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Espinoza v. Montana Dept. of Revenue . . . . . . . . . . . . . . . . . . . . 464
Exxon Mobil Corp.; Arunachalam v. . . . . . . . . . . . . . . . . . . . . . . . 1014
Facebook, Inc. v. Duguid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Farthing, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
FCC v. Prometheus Radio Project . . . . . . . . . . . . . . . . . . . . . . . . 1080
Federal National Mortgage Assn.; Dalen v. . . . . . . . . . . . . . . . . . 1067
Federal Republic of Germany v. Philipp . . . . . . . . . . . . . . . . . . . . 1025
Federal Trade Comm'n; AMG Capital Management, LLC v. . . . . 1028
Federal Trade Comm'n v. Credit Bureau Center, LLC . . . . . . . . . 1028
Florida; Metayer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Florida; Swinton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
FMC Corp. v. Shoshone-Bannock Tribes . . . . . . . . . . . . . . . . . . . 1014
Ford; Tate v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Foster; Brooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Frank, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Fresno, Cal.; Jessop v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Gastelo; Rogers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Georgiades; Osborne v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Gong v. University of Mich. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Gough v. Bankers Life & Casualty Co. . . . . . . . . . . . . . . . . . . . . . 1079
Governor of Fla.; Raysor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Governor of Idaho v. Reclaim Idaho . . . . . . . . . . . . . . . . . . . . . . . 1060
Governor of Nev.; Calvary Chapel Dayton Valley v. . . . . . . . . . . . 1042
Governor of Ohio; Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Governor of Okla.; Ray v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Grant v. Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Gray; Bridges v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Great Northern Ins. Co., Inc.; Sesztak v. . . . . . . . . . . . . . . . . . . . 1001
Greer v. Mehiel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Griffth; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
H. v. Indiana Dept. of Child Services . . . . . . . . . . . . . . . . . . . . . . 1067
Hearns; Brownlee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Hirshauer v. AQ Holdings, LLC . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Hannah, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Hanover, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Hawaii; Pattioay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076

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Hockaday v. Christner .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
In re. See name of party.
Internal Revenue Service; CIC Services, LLC v. . . . . . . . . . . 1075,1079
Little Sisters of the Poor v. California . . . . . . . . . . . . . . . . . . . . . 1027
Hong Tang v. University of Baltimore . . . . . . . . . . . . . . . . . . . . . 1066
Horton-Texas, Ltd.; Collins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Hoskins v. GE Aviation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
House Committee on the Judiciary; Department of Justice v. . . . . 1025
Hyatt Corp.; Stancu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Ibeabuchi v. Brnovich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Inch; Prenatt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Inch; Toth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Inch; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Indiana Dept. of Child Services; M. H. v. . . . . . . . . . . . . . . . . . . . 1067
Internal Revenue Service; White v. . . . . . . . . . . . . . . . . . . . . . . . 1077
Intuit, Inc.; Arunachalam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Jackson v. Berean. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Jackson v. Supreme Court of Ill. . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Jackson v. Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Jackson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Jackson v. Utah . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Jacobs v. Maricopa Integrated Health Care System . . . . . . . . . . . 1023
James, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Jaramillo v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Jessop v. Fresno, Cal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Johnson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Johnson v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Johnson v. Workers' Compensation Appeals Bd. . . . . . . . . . . . . . . 1066
Jones v. Errington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Jones v. Griffth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Joyner; Cheeks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
June Medical Services L. L. C. v. Russo . . . . . . . . . . . . . . . . . . . . 299
Kelsay v. Ernst . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Kerns v. Wenner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Kim; Manning v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Krebs; Wilder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Kwushue v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Labat v. Vannoy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Lashbrook; O'Rourke v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
LeCroy v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Lee; Barr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Linear Controls, Inc.; Peterson v. . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Little v. Reclaim Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Little Sisters of the Poor v. Pennsylvania . . . . . . . . . . . . . . . . . . 657

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Liu v. SEC .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Logan v. Logan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Lopez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Lopez Bello v. Stansell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Louisiana; Victor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Lovell v. Children's Corner Daycare . . . . . . . . . . . . . . . . . . . . . . 1023
Lyft, Inc.; Arunachalam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Manning v. Kim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
March for Life Ed. and Defense Fund v. California . . . . . . . . . . . 1027
Maricopa Integrated Health Care System; Jacobs v. . . . . . . . . . . 1023
Marion, Ill.; Ball v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Martinez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Mason; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Mason; Yaney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Massachusetts Comm'n Against Discrimination; Mata v. . . . . . . . 1076
Mata v. Massachusetts Comm'n Against Discrimination . . . . . . . . 1076
Mayor and City Council of Baltimore; BP p. l. c. v. . . . . . . . . . . . 1080
Mazars USA, LLP; Trump v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848
McCarthy; Watson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
McDaniel; Parsons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
McGirt v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894
McKinley v. Bey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Mehiel; Greer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Meinster; Rojas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Mendes Da Costa v. Pereira . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Merrill v. People First of Ala. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Metayer v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
M. H. v. Indiana Dept. of Child Services . . . . . . . . . . . . . . . . . . . 1067
Ndoromo v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Nelson; Wazney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Mills v. Saul, Commissioner of Social Security . . . . . . . . . . . . . . . 1023
Ming Dai; Barr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Mitchell v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Mnuchin v. Collins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028,1074
Mnuchin; Collins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028,1074
Mohammed v. DuPage Legal Assistance Foundation . . . . . . . . . . 1023
Mohn v. Progressive Ins. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Montana Dept. of Revenue; Espinoza v. . . . . . . . . . . . . . . . . . . . . 464
Montgomery v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Morrissey-Berru; Our Lady of Guadalupe School v. . . . . . . . . . . . 732
Mulcahy v. Aspen Skiing Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Murphy; Sharp v.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
National Assn. of Broadcasters v. Prometheus Radio Project . . . 1080
Navarro v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013

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Nestle USA, Inc. v. Doe .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
New Jersey; PennEast Pipeline Co., LLC v. . . . . . . . . . . . . . . . . . 1014
New York; Trump v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
New York City Dept. of Parks and Recreation; Troy-McKoy v. 1067
Northern Plains Resource Council; Army Corps of Engineers v. 1026
Oklahoma; Bentley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Oklahoma; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Oklahoma; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Oklahoma; McGirt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894
Oklahoma; Terry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Oregon Secretary of State v. People Not Politicians Ore. . . . . . . . 1073
O'Rourke v. Lashbrook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Osborne v. Georgiades . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Osornio v. Supreme Court of United States . . . . . . . . . . . . . . . . . 1013
Our Lady of Guadalupe School v. Morrissey-Berru . . . . . . . . . . . 732
Palmer v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Parsons v. McDaniel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Patent and Trademark Offce v. Booking.com B. V. . . . . . . . . . 549,1024
Patterson; Tomlin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Pattioay v. Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
PennEast Pipeline Co., LLC v. New Jersey . . . . . . . . . . . . . . . . . 1014
Pennsylvania; Little Sisters of the Poor v. . . . . . . . . . . . . . . . . . . 657
People First of Ala.; Merrill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
People Not Politicians Ore.; Clarno v. . . . . . . . . . . . . . . . . . . . . . . 1073
Pereira; Mendes Da Costa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Peterson v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Peterson v. Linear Controls, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Philipp; Federal Republic of Germany v. . . . . . . . . . . . . . . . . . . . 1025
Planned Parenthood of Ind. & Kentucky, Inc.; Box v. . . . . . . . . . . 1024
Preczewski; Uzuegbunam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Prenatt v. Inch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
President of United States v. New York . . . . . . . . . . . . . . . . . . . . 1080
President of United States v. Sierra Club . . . . . . . . . . . . . . . . . . 1065
Progressive Ins.; Mohn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Prometheus Radio Project; FCC v. . . . . . . . . . . . . . . . . . . . . . . . 1080
Prometheus Radio Project; National Assn. of Broadcasters v. . . . 1080
Purkey; Barr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034,1041
Purkey; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Ray v. Stitt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Raysor v. DeSantis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Reclaim Idaho; Little v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Regents of Univ. of Cal.; Department of Homeland Security v. . . . 1
Republican National Committee v. Common Cause Rhode Island 1074
Republic of Hungary v. Simon . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025

T
ABLE OF CASES REPORTED
xxi
Page
Robinson, In re .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Robinson v. Mason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Rogers v. Gastelo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Rojas v. Meinster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Rosa, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Russo; June Medical Services L. L. C. v. . . . . . . . . . . . . . . . . . . . 299
Ruttkamp v. Bank of New York Mellon . . . . . . . . . . . . . . . . . . . . 1076
St. Augustine School v. Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Saul, Commissioner of Social Security; Mills v. . . . . . . . . . . . . . . . 1023
School Dist. of Philadelphia; Armstrong v. . . . . . . . . . . . . . . . . . . 1079
Schubert v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014
Scott v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Scott v. Superior Court of California, Monterey Cty. . . . . . . . . . . 1076
Secretary of Army; Watson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Secretary of penal or correctional institution. See name or title
of secretary.
Secretary of Treasury v. Collins . . . . . . . . . . . . . . . . . . . . . . . 1028,1074
Secretary of Treasury; Collins v. . . . . . . . . . . . . . . . . . . . . . . 1028,1074
SEC; de Maison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
SEC; Liu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SEC; Team Resources Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Seila Law LLC v. Consumer Financial Protection Bureau . . . . . . 197
Sesztak v. Great Northern Ins. Co., Inc. . . . . . . . . . . . . . . . . . . . . 1001
Sharp v. Murphy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Shinn; Albritton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Short v. Superintendent, State Correctional Inst. at Greensburg 1067
Shoshone-Bannock Tribes; FMC Corp. v. . . . . . . . . . . . . . . . . . . . 1014
Sierra Club; Trump v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1065
Simon; Republic of Hungary v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Sims, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015
Sims v. Wells Fargo Bank, N. A. . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Sisolak; Calvary Chapel Dayton Valley v. . . . . . . . . . . . . . . . . . . . 1042
Smith, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Spence, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Stancu v. Hyatt Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Stansell; Lopez Bello v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Starks, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
State. See name of State.
Stitt; Ray v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Story; Beggs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Stovell, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Superintendent of penal or correctional institution. See name or
title of superintendent.

xxii T
ABLE OF CASES REPORTED
Page
Superintendent, State Correctional Inst. at Greensburg; Short v. 1067
Texas Democratic Party v. Abbott . . . . . . . . . . . . . . . . . . . . . 1013,1025
United States. See name of other party.
Waffe House, Inc.; Banks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Super
ior Court of Cal., Monterey Cty.; Scott v. . . . . . . . . . . . . . . 1076
Superior Court of Cal., San Bernardino Cty.; Yaney v. . . . . . . . . . 1075
Supreme Court of Ill.; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Supreme Court of United States; Osornio v. . . . . . . . . . . . . . . . . . 1013
Swinton v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Talbert v. Carney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Tang v. University of Baltimore . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Tate v. Ford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Taylor; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Taylor; St. Augustine School v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Team Resources Inc. v. SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Tennessee; Dellinger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Terry v. Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Texas v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Texas; California v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Thompson v. DeWine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Thuraissigiam; Department of Homeland Security v. . . . . . . . . . . 103
Tomlin v. Patterson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Torres, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Toth v. Antonacci . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Toth v. Inch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Troy-McKoy v. New York City Dept. of Parks and Recreation . . . 1067
Trump; Committees of the U. S. House of Representatives v. . . . 1042
Trump v. Mazars USA, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848
Trump v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1080
Trump v. Sierra Club . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1065
Trump v. Vance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 786
Truong v. Barnard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Uber Technologies, Inc.; Arunachalam v. . . . . . . . . . . . . . . . . . . . 1015
University of Baltimore; Hong Tang v. . . . . . . . . . . . . . . . . . . . . . 1066
University of Mich.; Yusong Gong v. . . . . . . . . . . . . . . . . . . . . . . . 1066
Utah; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Uzuegbunam v. Preczewski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Vance; Trump v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 786
Vanderburg, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Vannoy; Labat v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Victor v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Viengxay Chantharath v. United States . . . . . . . . . . . . . . . . . . . . 1076
Vinarov v. CitiMortgage, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Warden. See name of warden.

T
ABLE OF CASES REPORTED
xxiii
Page
Washington; Chiafalo v. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578
Watson v. McCarthy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Watt, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Wazney v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Weatherspoon v. Bagahpour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Weaver; El Bey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Webster v. CorVel Enterprise Co. . . . . . . . . . . . . . . . . . . . . . . . . 1067
Wells Fargo Bank, N. A.; Sims v. . . . . . . . . . . . . . . . . . . . . . . . . . 1066
Wenner; Kerns v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
White v. Internal Revenue Service . . . . . . . . . . . . . . . . . . . . . . . 1077
Wilder v. Krebs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Williams; DeAtley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Williams; Grant v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
Wilmore v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Wilson v. Inch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Wilson County, North Carolina; Armstrong v. . . . . . . . . . . . . . . . 1066
Wolfe v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Workers' Compensation Appeals Bd.; Johnson v. . . . . . . . . . . . . . 1066
Wright, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Yaney v. Mason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Yaney v. Superior Court of California, San Bernardino Cty. . . . . . 1075
Young, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067
Yusong Gong v. University of Mich. . . . . . . . . . . . . . . . . . . . . . . . 1066
Zavaglia v. Boston Univ. School of Medicine . . . . . . . . . . . . . . . . . 1067

C
ASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2019

464 OCTOBER
TERM, 2019
Syllabus
ESPINOZA et al. v. MONTANA DEPARTMENT OF
RE
VENUE et al.
certiorari to the supreme court of montana
No. 18–1195. Argued January 22, 2020—Decided June 30, 2020
The Montana Legislature established a program that grants tax credits to
those who donate to organizations that award scholarships for private
school tuition. To reconcile the program with a provision of the Mon-
tana Constitution that bars government aid to any school “controlled in
whole or in part by any church, sect, or denomination,” Art. X, § 6(1),
the Montana Department of Revenue promulgated “Rule 1,” which pro-
hibited families from using the scholarships at religious schools. Three
mothers who were blocked by Rule 1 from using scholarship funds for
their children's tuition at Stillwater Christian School sued the Depart-
ment in state court, alleging that the Rule discriminated on the basis of
their religious views and the religious nature of the school they had
chosen. The trial court enjoined Rule 1. Reversing, the Montana Su-
preme Court held that the program, unmodifed by Rule 1, aided reli-
gious schools in violation of the Montana Constitution's no-aid provision.
The Court further held that the violation required invalidating the en-
tire program.
Held: The application of the no-aid provision discriminated against reli-
gious schools and the families whose children attend or hope to attend
them in violation of the Free Exercise Clause of the Federal Constitu-
tion. Pp. 473–489.
(a) The Free Exercise Clause “protects religious observers against
unequal treatment” and against “laws that impose special disabilities on
the basis of religious status.” Trinity Lutheran Church of Columbia,
Inc. v. Comer, 582 U. S. 449, 458, 461. In Trinity Lutheran, this Court
held that disqualifying otherwise eligible recipients from a public beneft
“solely because of their religious character” imposes “a penalty on the
free exercise of religion that triggers the most exacting scrutiny.” Id.,
at 462. Here, the application of Montana's no-aid provision excludes
religious schools from public benefts solely because of religious status.
As a result, strict scrutiny applies. Pp. 473–479.
(b) Contrary to the Department's contention, this case is not gov-
erned by Locke v. Davey, 540 U. S. 712. The plaintiff in Locke was
denied a scholarship “because of what he proposed to do—use the funds
to prepare for the ministry,” an essentially religious endeavor. Trinity
Lutheran, 582 U. S., at 464. By contrast, Montana's no-aid provision

Cite
as: 591 U. S. 464 (2020)
465
Syllabus
does not zero in on any essentially religious course of instruction but
rather
bars aid to a religious school “simply because of what it is”—a
religious school. Ibid. Locke also invoked a “historic and substantial”
state interest in not funding the training of clergy, 540 U. S., at 725,
but no comparable tradition supports Montana's decision to disqualify
religious schools from government aid. Pp. 479–483.
(c) The proposed alternative approach involving a fexible case-by-
case analysis is inconsistent with Trinity Lutheran. The protections
of the Free Exercise Clause do not depend on a varying case-by-case
analysis regarding whether discrimination against religious adherents
would serve ill-defned interests. Pp. 483–484.
(d) To satisfy strict scrutiny, government action “must advance `inter-
ests of the highest order' and must be narrowly tailored in pursuit of
those interests.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U. S. 520, 546. Montana's interest in creating greater separation of
church and state than the Federal Constitution requires “cannot qualify
as compelling ” in the face of the infringement of free exercise here.
Trinity Lutheran, 582 U. S., at 466. The Department's argument that
the no-aid provision actually promotes religious freedom is unavailing
because an infringement of First Amendment rights cannot be justifed
by a State's alternative view that the infringement advances religious
liberty. The Department's argument is especially unconvincing because
the infringement here broadly burdens not only religious schools but
also the families whose children attend them. The Department sug-
gests that the no-aid provision safeguards public education by ensuring
that government support is not diverted to private schools, but that
interest does not justify a no-aid provision that requires only religious
private schools to bear its weight. Pp. 484–487.
(e) Because the Free Exercise Clause barred the application of the
no-aid provision here, the Montana Supreme Court had no authority to
invalidate the program on the basis of that provision. The Department
argues that the invalidation of the entire program prevented a free exer-
cise violation, but the Department overlooks the Montana Supreme
Court's threshold error of federal law. Had the Montana Supreme
Court recognized that the application of the no-aid provision was barred
by the Free Exercise Clause, the Court would have had no basis for
invalidating the program. The Court was obligated to disregard the
no-aid provision and decide this case consistent with the Federal Consti-
tution. Pp. 487–489.
393 Mont. 446, 435 P. 3d 603, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Thomas,
Alito, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., fled a concur-

466 ESPINOZA
v. MONTANA DEPT. OF REVENUE
Syllabus
ring opinion, in which Gorsuch, J., joined, post, p. 489. Alito, J., post,
p
. 497, and Gorsuch, J., post, p. 508, fled concurring opinions. Gins-
burg, J., fled a dissenting opinion, in which Kagan, J., joined, post, p. 515.
Breyer, J., fled a dissenting opinion, in which Kagan, J., joined as to
Part I, post, p. 520. Sotomayor, J., fled a dissenting opinion, post, p. 538.
Richard D. Komer argued the cause for petitioners. With
him on the briefs were Erica J. Smith, William W. Mercer,
Michael Bindas, and Timothy D. Keller.
Deputy Solicitor General Wall argued the cause for the
United States as amicus curiae urging reversal. With him
on the brief were Solicitor General Francisco, Assistant At-
torney General Dreiband, Vivek Suri, Thomas E. Chandler,
and Eric W. Treene.
Adam G. Unikowsky argued the cause for respondents.
With him on the brief were James Dawson, Daniel J. Whyte,
and Anthony Johnstone.*
*Briefs of amici curiae urging reversal were fled for the State of Okla-
homa et al. by Mike Hunter, Attorney General of Oklahoma, Mithun Man-
singhani, Solicitor General, and Zach West and Bryan Cleveland, Assist-
ant Solicitors General, by Chr istopher M. Car r, Attorney General of
Georgia, Andrew A. Pinson, Solicitor General, and Kurtis G. Anderson,
Assistant Attorney General, by Mark Brnovich, Attorney General of Ari-
zona, O. H. Skinner, Solicitor General, and Andrew G. Pappas, Deputy
Solicitor General, and by the Attorneys General for their respective States
as follows: Steve Marshall of Alabama, Kevin G. Clarkson of Alaska, Les-
lie Rutledge of Arkansas, Derek Schmidt of Kansas, Jeff Landry of Louisi-
ana, Eric Schmitt of Missouri, Doug Peterson of Nebraska, Dave Yost of
Ohio, Jason R. Ravnsborg of South Dakota, Herbert H. Slatery III of
Tennessee, Ken Paxton of Texas, Sean D. Reyes of Utah, and Patrick
Morrisey of West Virginia; for the Alliance for Choice in Education by
Ian Speir and L. Martin Nussbaum; for the American Center for Law
and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, and
Walter M. Weber; for Americans for Prosperity et al. by Cynthia F. Craw-
ford; for the Arizona Christian School Tuition Organization et al. by Ally-
son N. Ho, Bradley G. Hubbard, Kristen K. Waggoner, David A. Cortman,
John J. Bursch, Brett B. Harvey, Rory T. Gray, and Christopher P. Schan-
devel; for the Becket Fund for Religious Liberty by Diana M. Verm, Eric
S. Baxter, and Eric S. Rassbach; for the Billy Graham Evangelistic Associ-
ation et al. by Frederick W. Claybrook, Jr., James A. Davids, and David

Cite
as: 591 U. S. 464 (2020)
467
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
The Montana Legislature established a program to pro-
vide tuition assistance to parents who send their children to
A. Bruce; for the Cato Institute by Ilya Shapiro; for the Center for Consti-
tutional Jurisprudence by John C. Eastman and Anthony T. Caso; for the
Center for Education Reform et al. by Paul D. Clement, George W. Hicks,
Jr., and Erin M. Hawley; for the Christian Legal Society et al. by Kimber-
lee Wood Colby, Reed N. Smith, Douglas Laycock, and Thomas C. Berg;
for EdChoice et al. by Leslie Davis Hiner, Russell Menyhart, and Manuel
S. Klausner; for Forge Youth Mentoring by Joshua D. Davey and Kelly J.
Shackel ford; for the Foundation for Moral Law by John A. Eidsmoe; for
the Georgia Goal Scholarship Program, Inc., by James P. Kelly III and
Harry W. MacDougald; for the Independence Institute by David B. Kopel;
for the Jewish Coalition for Religious Liberty by Parker Douglas and
Howard Slugh; for the Justice and Freedom Fund et al. by James L.
Hirsen, Deborah J. Dewart, and B. Tyler Brooks; for the Liberty Justice
Center et al. by Brian K. Kelsey, Jeffrey M. Schwab, and Daniel R. Suhr;
for the Mackinac Center for Public Policy by Patrick J. Wright; for Mon-
tana Catholic School Parents et al. by Andrea Picciotti-Bayer; for the
Montana Family Foundation by Anita Y. Milanovich; for the Opportunity
Scholarship Fund by Fred A. Leibrock; for the Pioneer Institute, Inc., by
Dwight G. Duncan and Michael C. Gilleran; for The Rutherford Institute
by Jason P. Gosselin and John W. Whitehead; for Jerry Armstrong et al.
by Ethan W. Blevins, Wencong Fa, and Joshua P. Thompson; for Rusty
Bowers et al. by John J. Park, Jr.; for Sen. Steve Daines et al. by Sarah
M. Harris; for the Hon. Scott Walker by Richard M. Esenberg; and for
131 Current and Former State Legislators by Steven W. Fitschen.
Briefs of amici curiae urging affrmance were fled for the State of
Colorado et al. by Philip J. Weiser, Attorney General of Colorado, Eric R.
Olson, Solicitor General, Christopher Johnson, Assistant Attorney Gen-
eral, and Grant T. Sullivan, Assistant Solicitor General, and by the Attor-
neys General for their respective jurisdictions as follows: Xavier Becerra
of California, Clare E. Connors of Hawaii, Maura Healey of Massachu-
setts, Dana Nessel of Michigan, Keith Ellison of Minnesota, Letitia James
of New York, Ellen F. Rosenblum of Oregon, and Robert F. Ferguson of
Washington; for the State of Maine by Aaron M. Frey, Attorney General
of Maine, Susan P. Herman, Deputy Attorney General, and Sarah A. For-
ster and Christopher C. Taub, Assistant Attorneys General; for the Ameri-
can Federation of Teachers et al. by Kevin K. Russell, Erica Oleszczuk
Evans, John M. West, Ramya Ravindran, Alice O'Brien, Kristen Hollar,

468 ESPINOZA
v. MONTANA DEPT. OF REVENUE
Opinion of the Court
private schools. The program grants a tax credit to anyone
who
donates to certain organizations that in turn award
scholarships to selected students attending such schools.
When petitioners sought to use the scholarships at a reli-
gious school, the Montana Supreme Court struck down the
program. The Court relied on the “no-aid” provision of the
State Constitution, which prohibits any aid to a school con-
trolled by a “church, sect, or denomination.” The question
presented is whether the Free Exercise Clause of the United
States Constitution barred that application of the no-aid
provision.
I
A
In 2015, the Montana Legislature sought “to provide pa-
rental and student choice in education” by enacting a scholar-
ship program for students attending private schools. 2015
Mont. Laws p. 2168, § 7. The program grants a tax credit of
up to $150 to any taxpayer who donates to a participating
“student scholarship organization.” Mont. Code Ann. §§ 15–
Rhonda Weingarten, and David J. Strom; for the Baptist Joint Committee
for Religious Liberty et al. by Steven K. Green, K. Hollyn Hollman, and
Jennifer L. Hawks; for the Freedom From Religion Foundation et al. by
Andrew Seidel and Patrick Elliott; for the Montana Association of Rabbis
by Charles A. Rothfeld, Andrew J. Pincus, Michael B. Kimberly, Paul
W. Hughes, and Eugene R. Fidell; for Montana Constitutional Convention
Delegates by Hyland Hunt and Ruthanne M. Deutsch; for the Montana-
Northern Wyoming Conference, United Church of Christ, by Tillman J.
Breckenridge and Patricia E. Roberts; for the National Disability Rights
Network et al. by Gregory M. Lipper, Ronald M. Hager, Shira Wakschlag,
and Selene Almazan-Altobelli; for the National School Boards Association
et al. by Francisco M. Negrón, Jr., and Sonja H. Trainor; for Public Funds
Public Schools by Tamerlin J. Godley and Jessica Reich Baril; for Reli-
gion Law Scholars by Kirti Datla; for Religious and Civil-Rights Orga-
nizations by Richard B. Katskee, Alex J. Luchenitser, Daniel Mach,
Heather L. Weaver, David D. Cole, Steven M. Freeman, and Elliot M.
Mincberg; and for the Tennessee Education Association by Richard L.
Colbert.

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469
Opinion of the Court
30–3103(1), –3111(1) (2019). The scholarship organizations
then
use the donations to award scholarships to children for
tuition at a private school. §§ 15–30–3102(7)(a), –3103(1)(c).
1
So far only one scholarship organization, Big Sky Scholar-
ships, has participated in the program. Big Sky focuses on
providing scholarships to families who face fnancial hardship
or have children with disabilities. Scholarship organizations
like Big Sky must, among other requirements, maintain an
application process for awarding the scholarships; use at
least 90% of all donations on scholarship awards; and comply
with state reporting and monitoring requirements. §§ 15–
30–3103(1), –3105(1), –3113(1).
A family whose child is awarded a scholarship under the
program may use it at any “qualifed education provider”—
that is, any private school that meets certain accreditation,
testing, and safety requirements. See § 15– 30– 3102(7).
Virtually every private school in Montana qualifes. Upon
receiving a scholarship, the family designates its school of
choice, and the scholarship organization sends the scholar-
ship funds directly to the school. § 15–30–3104(1). Neither
the scholarship organization nor its donors can restrict
awards to par ticu lar ty pes of schools. See §§ 15 – 30 –
3103(1)(b), –3111(1).
The Montana Legislature allotted $3 million annually to
fund the tax credits, beginning in 2016. § 15–30–3111(5)(a).
If the annual allotment is exhausted, it increases by 10% the
following year. Ibid. The program is slated to expire in
2023. 2015 Mont. Laws p. 2186, § 33.
The Montana Legislature also directed that the program
be administered in accordance with Article X, section 6,
of the Montana Constitution, which contains a “no-aid” pro-
vision barring government aid to sectarian schools. See
1
The Legislature provided the same tax credit to taxpayers who donate
to public schools for the purpose of supporting innovative educational pro-
grams or curing technology defciencies at such schools. See Mont. Code
Ann. § 15–30–3110 (2019).

470 ESPINOZA
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Opinion of the Court
Mont. Code Ann. § 15 – 30 – 3101. In fu ll, that provisi on
st
ates:
“Aid prohibited to sectarian schools. . . . The legis-
lature, counties, cities, towns, school districts, and public
corporations shall not make any direct or indirect appro-
priation or payment from any public fund or monies, or
any grant of lands or other property for any sectarian
purpose or to aid any church, school, academy, seminary,
college, university, or other literary or scientifc institu-
tion, controlled in whole or in part by any church, sect,
or denomination.” Mont. Const., Art. X, § 6(1).
Shortly after the scholarship program was created, the
Montana Department of Revenue promulgated “Rule 1,”
over the objection of the Montana Attorney General. That
administrative rule prohibited families from using scholar-
ships at religious schools. Mont. Admin. Rule § 42.4.802(1)(a)
(2015). It did so by changing the defnition of “qualifed edu-
cation provider” to exclude any school “owned or controlled
in whole or in part by any church, religious sect, or denomi-
nation.” Ibid. The Department explained that the Rule
was needed to reconcile the scholarship program with the
no-aid provision of the Montana Constitution.
The Montana Attorney General disagreed. In a letter to
the Department, he advised that the Montana Constitution
did not require excluding religious schools from the program,
and if it did, it would “very likely” violate the United States
Constitution by discriminating against the schools and their
students. See Complaint in No. DV–15–1152A (Dist. Ct.
Flathead Cty.), Exh. 3, pp. 2, 5–6. The Attorney General is
not representing the Department in this case.
B
This suit was brought by three mothers whose children
attend Stillwater Christian School in northwestern Montana.
Stillwater is a private Christian school that meets the statu-

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471
Opinion of the Court
tory criteria for “qualifed education providers.” It serves
students
in prekindergarten through 12th grade, and peti-
tioners chose the school in large part because it “teaches the
same Christian values that [they] teach at home.” App. to
Pet. for Cert. 152; see id., at 138, 167. The child of one peti-
tioner has already received scholarships from Big Sky, and
the other petitioners' children are eligible for scholarships
and planned to apply. While in effect, however, Rule 1
blocked petitioners from using scholarship funds for tuition
at Stillwater. To overcome that obstacle, petitioners sued
the Department of Revenue in Montana state court. Peti-
tioners claimed that Rule 1 conficted with the statute that
created the scholarship program and could not be justifed
on the ground that it was compelled by the Montana Consti-
tution's no-aid provision. Petitioners further alleged that
the Rule discriminated on the basis of their religious views
and the religious nature of the school they had chosen for
their children.
The trial court enjoined Rule 1, holding that it was based
on a mistake of law. The court explained that the Rule was
not required by the no-aid provision, because that provision
prohibits only “appropriations” that aid religious schools,
“not tax credits.” Id., at 94.
The injunctive relief freed Big Sky to award scholarships
to students regardless of whether they attended a religious
or secular school. For the school year beginning in fall 2017,
Big Sky received 59 applications and ultimately awarded 44
scholarships of $500 each. The next year, Big Sky received
90 applications and awarded 54 scholarships of $500 each.
Several families, most with incomes of $30,000 or less,
used the scholarships to send their children to Stillwater
Christian.
In December 2018, the Montana Supreme Court reversed
the trial court. 393 Mont. 446, 435 P. 3d 603. The Court
frst addressed the scholarship program unmodifed by
Rule 1, holding that the program aided religious schools in

472 ESPINOZA
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Opinion of the Court
violation of the no-aid provision of the Montana Constitution.
In
the Court's view, the no-aid provision “broadly and
strictly prohibits aid to sectarian schools.” Id., at 459, 435
P. 3d, at 609. The scholarship program provided such aid by
using tax credits to “subsidize tuition payments” at private
schools that are “religiously affliated” or “controlled in
whole or in part by churches.” Id., at 464–467, 435 P. 3d, at
612–613. In that way, the scholarship program fouted the
State Constitution's “guarantee to all Montanans that their
government will not use state funds to aid religious schools.”
Id., at 467, 435 P. 3d, at 614.
The Montana Supreme Court went on to hold that the vio-
lation of the no-aid provision required invalidating the entire
scholarship program. The Court explained that the pro-
gram provided “no mechanism” for preventing aid from
fowing to religious schools, and therefore the scholarship
program could not “under any circumstance” be construed
as consistent with the no-aid provision. Id., at 466–468, 435
P. 3d, at 613–614. As a result, the tax credit is no longer
available to support scholarships at either religious or secu-
lar private schools.
The Montana Supreme Court acknowledged that “an
overly-broad” application of the no-aid provision “could im-
plicate free exercise concerns” and that “there may be a
case” where “prohibiting the aid would violate the Free Ex-
ercise Clause.” Id., at 468, 435 P. 3d, at 614. But, the Court
concluded, “this is not one of those cases.” Ibid.
Finally, the Court agreed with petitioners that the Depart-
ment had exceeded its authority in promulgating Rule 1.
The Court explained that the statute creating the scholar-
ship program had broadly defned qualifying schools to in-
clude all private schools, including religious ones, and the
Department lacked authority to “transform” that defnition
with an administrative rule. Id., at 468–469, 435 P. 3d, at
614–615.

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Opinion of the Court
Several Justices wrote separately. All agreed that Rule 1
was
invalid, but they expressed differing views on whether
the scholarship program was consistent with the Montana
and United States Constitutions. Justice Gustafson's con-
currence argued that the program violated not only Mon-
tana's no-aid provision but also the Federal Establishment
and Free Exercise Clauses. Id., at 475–479, 435 P. 3d, at
619–621. Justice Sandefur echoed the majority's conclusion
that applying the no-aid provision was consistent with the
Free Exercise Clause, and he dismissed the “modern juris-
prudence” of that Clause as “unnecessarily complicate[d]”
due to “increasingly value-driven hairsplitting and over-
stretching.” Id., at 482–484, 435 P. 3d, at 623–624.
Two Justices dissented. Justice Rice would have held
that the scholarship program was permissible under the no-
aid provision. He criticized the majority for invalidating the
program “sua sponte,” contending that no party had chal-
lenged it under the State Constitution. Id., at 495, 435 P. 3d,
at 631. Justice Baker also would have upheld the program.
In her view, the no-aid provision did not bar the use of schol-
arships at religious schools, and free exercise concerns could
arise under the Federal Constitution if it did. Id., at 493–
494, 435 P. 3d, at 630.
We granted certiorari. 588 U. S. 920 (2019).
II
A
The Religion Clauses of the First Amendment provide
that “Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof.”
We have recognized a “ `play in the joints' between what the
Establishment Clause permits and the Free Exercise Clause
compels.” Trinity Lutheran Church of Columbia, Inc. v.
Comer, 582 U. S. 449, 458 (2017) (quoting Locke v. Davey, 540
U. S. 712, 718 (2004)). Here, the parties do not dispute that

474 ESPINOZA
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Opinion of the Court
the scholarship program is permissible under the Establish-
ment
Clause. Nor could they. We have repeatedly held
that the Establishment Clause is not offended when religious
observers and organizations beneft from neutral govern-
ment programs. See, e. g., Locke, 540 U. S., at 719; Rosen-
berger v. Rector and Visitors of Univ. of Va., 515 U. S. 819,
839 (1995). See also Trinity Lutheran, 582 U. S., at 458
(noti ng the par ties' agreement that the Est ablishment
Clause was not violated by including churches in a play-
ground resurfacing program). Any Establishment Clause
objection to the scholarship program here is particularly un-
availing because the government support makes its way to
religious schools only as a result of Montanans independently
choosing to spend their scholarships at such schools. See
Locke, 540 U. S., at 719; Zelman v. Simmons-Harris, 536
U. S. 639, 649–653 (2002). The Montana Supreme Court,
however, held as a matter of state law that even such indirect
government support qualifed as “aid” prohibited under the
Montana Constitution.
The question for this Court is whether the Free Exercise
Clause precluded the Montana Supreme Court from applying
Montana's no-aid provision to bar religious schools from the
scholarship program. For purposes of answering that ques-
tion, we accept the Montana Supreme Court's interpretation
of state law—including its determination that the scholarship
program provided impermissible “aid” within the meaning of
the Montana Constitution—and we assess whether excluding
religious schools and affected families from that program
was consistent with the Federal Constitution.
2
2
Justice Sotomayor argues that the Montana Supreme Court “ex-
pressly declined to reach any federal issue.” Post, at 543 (dissenting opin-
ion). Not so. As noted, supra, at 472, the Montana Supreme Court rec-
ognized that certain applications of the no-aid provision could “violate the
Free Exercise Clause.” 393 Mont. 446, 468, 435 P. 3d 603, 614 (2018).
But the Court expressly concluded that “this is not one of those cases.”
Ibid.

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475
Opinion of the Court
The Free Exercise Clause, which applies to the States
under
the Fourteenth Amendment, “protects religious ob-
servers against unequal treatment” and against “laws that
impose special disabilities on the basis of religious status.”
Trinity Lutheran, 582 U. S., at 458, 461 (internal quotation
marks and alterations omitted); see Cantwell v. Connecticut,
310 U. S. 296, 303 (1940). Those “basic principle[s]” have
long guided this Court. Trinity Lutheran, 582 U. S., at
458–462. See, e. g., Everson v. Board of Ed. of Ewing, 330
U. S. 1, 16 (1947) (a State “cannot exclude individual Catho-
lics, Lutherans, Mohammedans, Baptists, Jews, Methodists,
Non-believers, Presbyterians, or the members of any other
faith, because of their faith, or lack of it, from receiving the
benefts of public welfare legislation”); Lyng v. Northwest In-
dian Cemetery Protective Assn., 485 U. S. 439, 449 (1988)
(the Free Exercise Clause protects against laws that “penal-
ize religious activity by denying any person an equal share
of the rights, benefts, and privileges enjoyed by other
citizens”).
Most recently, Trinity Lutheran distilled these and other
decisions to the same effect into the “unremarkable” conclu-
sion that disqualifying otherwise eligible recipients from a
public beneft “solely because of their religious character”
imposes “a penalty on the free exercise of religion that trig-
gers the most exacting scrutiny.” 582 U. S., at 462. In
Trinity Lutheran, Missouri provided grants to help non-
proft organizations pay for playground resurfacing, but a
state policy disqualifed any organization “owned or con-
trolled by a church, sect, or other religious entity.” Id., at
455. Because of that policy, an otherwise eligible church-
owned preschool was denied a grant to resurface its play-
ground. Missouri's policy discriminated against the Church
“simply because of what it is—a church,” and so the policy
was subject to the “strictest scrutiny,” which it failed.
Id., at 464–466. We acknowledged that the State had not
“criminalized” the way in which the Church worshipped or

476 ESPINOZA
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Opinion of the Court
“told the Church that it cannot subscribe to a certain view
of
the Gospel.” Id., at 463. But the State's discriminatory
policy was “odious to our Constitution all the same.” Id.,
at 467.
Here too Montana's no-aid provision bars religious schools
from public benefts solely because of the religious character
of the schools. The provision also bars parents who wish
to send their children to a religious school from those same
benefts, again solely because of the religious character of the
school. This is apparent from the plain text. The provision
bars aid to any school “controlled in whole or in part by any
church, sect, or denomination.” Mont. Const., Art. X, § 6(1).
The provision's title—“Aid prohibited to sectarian schools”—
confrms that the provision singles out schools based on their
relig i ous character. Ib i d. And the Montana Supreme
Court explained that the provision forbids aid to any school
that is “sectarian,” “religiously affliated,” or “controlled in
whole or in part by churches.” 393 Mont., at 464–467, 435
P. 3d, at 612–613. The provision plainly excludes schools
from government aid solely because of religious status. See
Trinity Lutheran, 582 U. S., at 462.
The Department counters that Trinity Lutheran does not
govern here because the no-aid provision applies not because
of the religious character of the recipients, but because of
how the funds would be used—for “religious education.”
Brief for Respondents 38. In Trinity Lutheran, a majority
of the Court concluded that the Missouri policy violated the
Free Exercise Clause because it discriminated on the basis
of religious status. A plurality declined to address discrimi-
nation with respect to “religious uses of funding or other
forms of discrimination.” 582 U. S., at 465, n. 3. The plu-
rality saw no need to consider such concerns because Mis-
souri had expressly discriminated “based on religious iden-
tity,” ibid., which was enough to invalidate the state policy
without addressing how government funds were used.

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Opinion of the Court
This case also turns expressly on religious status and not
rel
igious use. The Montana Supreme Court applied the no-
aid provision solely by reference to religious status. The
Court repeatedly explained that the no-aid provision bars
aid to “schools controlled in whole or in part by churches,”
“sectarian schools,” and “religiously-affliated schools.” 393
Mont., at 463–467, 435 P. 3d, at 611–613. Applying this pro-
vision to the scholarship program, the Montana Supreme
Court noted that most of the private schools that would ben-
eft from the program were “religiously affliated” and “con-
trolled by churches,” and the Court ultimately concluded
that the scholarship program ran afoul of the Montana Con-
stitution by aiding “schools controlled by churches.” Id., at
466–467, 435 P. 3d, at 613–614. The Montana Constitution
discriminates based on religious status just like the Missouri
policy in Trinity Lutheran, which excluded organizations
“owned or controlled by a church, sect, or other religious
entity.” 582 U. S., at 455.
The Department points to some language in the decision
below indicating that the no-aid provision has the goal or
effect of ensuring that government aid does not end up being
used for “sectarian education” or “religious education.” 393
Mont., at 460, 466–467, 435 P. 3d, at 609, 613–614. The De-
partment also contrasts what it characterizes as the “com-
pletely non-religious” beneft of playground resurfacing in
Trinity Lutheran with the unrestricted tuition aid at issue
here. Tr. of Oral Arg. 31. General school aid, the Depart-
ment stresses, could be used for religious ends by some re-
cipients, particularly schools that believe faith should “per-
meate[ ]” everything they do. Brief for Respondents 39
(quoting State ex rel. Chambers v. School Dist. No. 10, 155
Mont. 422, 438, 472 P. 2d 1013, 1021 (1970)). See also post,
at 526–527, 531–532 (Breyer, J., dissenting).
Regardless, those considerations were not the Montana
Supreme Court's basis for applying the no-aid provision to

478 ESPINOZA
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Opinion of the Court
exclude religious schools; that hinged solely on religious sta-
tus.
Status-based discrimination remains status based even
if one of its goals or effects is preventing religious organiza-
tions from putting aid to religious uses.
Undeterred by Trinity Lutheran, the Montana Supreme
Court applied the no-aid provision to hold that religious
schools could not beneft from the scholarship program. 393
Mont., at 464–468, 435 P. 3d, at 612–614. So applied, the
provision “impose[s] special disabilities on the basis of reli-
gious status” and “condition[s] the availability of benefts
upon a recipient's willingness to surrender [its] religiously
impelled status.” Trinity Lutheran, 582 U. S., at 461–462
(quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U. S. 520, 533 (1993), and McDaniel v. Paty, 435 U. S. 618,
626 (1978) (plurality opinion); alterations omitted). To be
eligible for government aid under the Montana Constitution,
a school must divorce itself from any religious control or af-
fliation. Placing such a condition on benefts or privileges
“ inevitably deters or discourages the exercise of First
Amendment rights.” Trinity Lutheran, 582 U. S., at 463
(quoting Sherbert v. Verner, 374 U. S. 398, 405 (1963); al-
terations omitted). The Free Exercise Clause protects
against even “indirect coercion,” and a State “punishe[s] the
free exercise of religion” by disqualifying the religious from
government aid as Montana did here. Tr inity Lutheran,
582 U. S., at 462– 463 (internal quotation marks omitted).
Such status-based discrimination is subject to “the strictest
scrutiny.” Id., at 463.
None of this is meant to suggest that we agree with the
Department, Brief for Respondents 36–40, that some lesser
degree of scrutiny applies to discrimination against religious
uses of government aid. See Lukumi, 508 U. S., at 546
(striking down law designed to ban religious practice involv-
ing alleged animal cruelty, explaining that a law “target[ing]
religious conduct for distinctive treatment or advanc[ing] le-
gitimate governmental interests only against conduct with a

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Opinion of the Court
religious motivation will survive strict scrutiny only in rare
cases”).
Some Members of the Court, moreover, have ques-
tioned whether there is a meaningful distinction between
discrimination based on use or conduct and that based on
status. See Trinity Lutheran, 582 U. S., at 468–470 (Gor-
such, J., joined by Thomas, J., concurring in part) (citing,
e. g., Lukumi, 508 U. S. 520, and Thomas v. Review Bd. of
Ind. Employment Security Div., 450 U. S. 707 (1981)). We
acknowledge the point but need not examine it here. It is
enough in this case to conclude that strict scrutiny applies
under Trinity Lutheran because Montana's no-aid provision
discriminates based on religious status.
B
Seeking to avoid Trinity Lutheran, the Department con-
tends that this case is instead governed by Locke v. Davey,
540 U. S. 712. See also post, at 524 (Breyer, J., dissenting);
post, at 546–547 (Sotomayor, J., dissenting). Locke also in-
volved a scholarship program. The State of Washington
provided scholarships paid out of the State's general fund to
help students pursuing postsecondary education. The schol-
arships could be used at accredited religious and nonreli-
gious schools alike, but Washington prohibited students from
using the scholarships to pursue devotional theology de-
grees, which prepared students for a calling as clergy. This
prohibition prevented Davey from using his scholarship to
obtain a degree that would have enabled him to become a
pastor. We held that Washington had not violated the Free
Exercise Clause.
Locke differs from this case in two critical ways. First,
Locke
explained that Washington had “merely chosen not to
fund a distinct category of instruction”: the “essentially reli-
gious endeavor” of training a minister “to lead a congregation.”
540 U. S., at 721. Thus, Davey “was denied a scholarship
because of what he proposed to do—use the funds to prepare
for the ministry.” Trinity Lutheran, 582 U. S., at 464.

480 ESPINOZA
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Opinion of the Court
Apart from that narrow restriction, Washington's program
a
llowed scholarships to be used at “pervasively religious
schools” that incorporated religious instruction throughout
their classes. Locke, 540 U. S., at 724–725. By contrast,
Montana's Constitution does not zero in on any particular
“essentially religious” course of instruction at a religious
school. Rather, as we have explained, the no-aid provision
bars all aid to a religious school “simply because of what it
is,” putting the school to a choice between being religious or
receiving government benefits. Tr ini ty Lutheran, 582
U. S., at 464. At the same time, the provision puts families
to a choice between sending their children to a religious
school or receiving such benefts.
Second, Locke invoked a “historic and substantial” state
interest in not funding the training of clergy, 540 U. S., at
725, explaining that “opposition to . . . funding `to support
church leaders' lay at the historic core of the Religion
Clauses,” Trinity Lutheran, 582 U. S., at 465 (quoting Locke,
540 U. S., at 722). As evidence of that tradition, the Court
in Locke emphasized that the propriety of state-supported
clergy was a central subject of founding-era debates, and
that most state constitutions from that era prohibited the
expenditure of tax dollars to support the clergy. See id., at
722–723.
But no comparable “historic and substantial” tradition
supports Montana's decision to disqualify religious schools
from government aid. In the founding era and the early
19th century, governments provided fnancial support to pri-
vate schools, including denominational ones. “Far from pro-
hibiting such support, the early state constitutions and stat-
utes actively encouraged this policy.” L. Jorgenson, The
State and the Non-Public School, 1825–1925, p. 4 (1987); e. g.,
R. Gabel, Public Funds for Church and Private Schools 210,
217–218, 221, 241–243 (1937); C. Kaestle, Pillars of the Re-
public: Common Schools and American Society, 1760–1860,
pp. 166–167 (1983). Local governments provided grants to
private schools, including religious ones, for the education

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Opinion of the Court
of the poor. M. McConnell et al., Religion and the Consti-
tuti
on 318–319 (4th ed. 2016). Even States with bans on
government-supported clergy, such as New Jersey, Pennsyl-
vania, and Georgia, provided various forms of aid to religious
schools. See Kaestle, supra, at 166–167; Gabel, supra, at
215–218, 241–245, 372–374; cf. Locke, 540 U. S., at 723.
Early federal aid (often land grants) went to religious
schools. McConnell, supra, at 319. Congress provided sup-
port to denominational schools in the District of Columbia
until 1848, ibid., and Congress paid churches to run schools
for American Indians through the end of the 19th century,
see Quick Bear v. Leupp, 210 U. S. 50, 78 (1908); Gabel,
supra, at 521–523. After the Civil War, Congress spent
large sums on education for emancipated freedmen, often by
supporting denominational schools in the South through the
Freedmen's Bureau. McConnell, supra, at 323.
3
3
Justice Breyer sees “no meaningful difference” between concerns
animating bans on support for clergy and bans on support for religious
schools. Post, at 526–528. But evidently early American governments
did. See supra, at 480 and this page. Justice Breyer contests particu-
lar examples but acknowledges that some bans on clergy support did not
bar certain “sponsorship” of religious schools. Post, at 528. And, central
to the issue here, he certainly does not identify a consistent early tradition,
of the sort invoked in Locke, against support for religious schools. Virgin-
ia's opposition to establishing university theology professorships and char-
tering theological seminaries, see post, at 529, do not ft the bill. Buckley,
After Disestablishment: Thomas Jefferson's Wall of Separation in Antebel-
lum Virginia, 61 J. So. Hist. 445, 452–453 (1995). Justice Breyer also
invokes Madison's objections to the Virginia Assessment Bill, post, at 527,
but Madison objected in part because the Bill provided special support to
certain churches and clergy, thereby “violat[ing] equality by subjecting
some to peculiar burdens.” Memorial and Remonstrance Against Reli-
gious Assessments, Art. 4, reprinted in Everson v. Board of Ed. of Ewing,
330 U. S. 1, 66 (1947) (appendix to dissenting opinion of Rutledge, J.); see
V. Muñoz, God and the Founders: Madison, Washington, and Jefferson 21–
22, 27 (2009). It is far from clear that the same objections extend to pro-
grams that provide equal support to all private primary and secondary
schools. If anything, excluding religious schools from such programs
would appear to impose the “peculiar burdens” feared by Madison.

482 ESPINOZA
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Opinion of the Court
The Department argues that a tradition against state sup-
por
t for religious schools arose in the second half of the 19th
century, as more than 30 States—including Montana—
adopted no-aid provisions. See Brief for Respondents 40–
42 and App. D. Such a development, of course, cannot by
itself establish an early American tradition. Justice Soto-
mayor questions our reliance on aid provided during the
same era by the Freedmen's Bureau, post, at 547 (dissenting
opinion), but we see no inconsistency in recognizing that such
evidence may reinforce an early practice but cannot create
one. In addition, many of the no-aid provisions belong to a
more checkered tradition shared with the Blaine Amend-
ment of the 1870s. That proposal—which Congress nearly
passed—would have added to the Federal Constitution a pro-
vision similar to the state no-aid provisions, prohibiting
States from aiding “sectarian” schools. See Mitchell v.
Helms, 530 U. S. 793, 828 (2000) (plurality opinion). “[I]t
was an open secret that `sectarian' was code for `Catholic.' ”
Ibid.; see Jorgenson, supra, at 70. The Blaine Amendment
was “born of bigotry” and “arose at a time of pervasive hos-
tility to the Catholic Church and to Catholics in general”;
many of its state counterparts have a similarly “shameful
pedigree.” Mitchell, 530 U. S., at 828–829 (plurality opin-
ion); see Jorgenson, supra, at 69–70, 216; Jeffries & Ryan, A
Political History of the Establishment Clause, 100 Mich. L.
Rev. 279, 301–305 (2001). The no-aid provisions of the 19th
century hardly evince a tradition that should inform our un-
derstanding of the Free Exercise Clause.
The Department argues that several States have rejected
referendums to overturn or limit their no-aid provisions, and
that Montana even re-adopted its own in the 1970s, for rea-
sons unrelated to anti-Catholic bigotry. See Brief for Re-
spondents 20, 42. But, on the other side of the ledger, many
States today—including those with no-aid provisions—pro-
vide support to religious schools through vouchers, scholar-
ships, tax credits, and other measures. See Brief for Okla-

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483
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homa et al. as Amici Curiae 29–31, 33–35; Brief for Peti-
ti
oners 5. According to petitioners, 20 of 37 States with
no-aid provisions allow religious options in publicly funded
scholarship programs, and almost all allow religious options
in tax credit programs. Reply Brief 22, n. 9.
All to say, we agree with the Department that the histori-
cal record is “complex.” Brief for Respondents 41. And it
is true that governments over time have taken a variety of
approaches to religious schools. But it is clear that there is
no “historic and substantial” tradition against aiding such
schools comparable to the tradition against state-supported
clergy invoked by Locke.
C
Two dissenters would chart new courses. Justice Soto-
mayor would grant the government “some room” to “single . . .
out” religious entities “for exclusion,” based on what she views
as “the interests embodied in the Religion Clauses.” Post, at
545, 546 (quoting Trinity Lutheran, 582 U. S., at 478, 479 (So-
tomayor, J., dissenting)). Justice Breyer, building on his
solo opinion in Trinity Lutheran, would adopt a “fexible,
context-specifc approach” that “may well vary” from case to
case. Post, at 533, 534–535; see Trinity Lutheran, 582 U. S.,
at 470–471 (Breyer, J., concurring in judgment). As best we
can tell, courts applying this approach would contemplate the
particular beneft and restriction at issue and discern their re-
lationship to religion and society, taking into account “context
and consequences measured in light of [the] purposes” of the
Religion Clauses. Post, at 534–536, 538 (opinion of Breyer,
J.) (quoting Van Orden v. Perry, 545 U. S. 677, 700 (2005)
(Breyer, J., concurring in judgment)). What is clear is that
Justice Breyer would afford much freer rein to judges than
our current regime, arguing that “there is `no test-related sub-
stitute for the exercise of legal judgment.' ” Post, at 538
(quoting Van Orden, 545 U. S., at 700 (opinion of Breyer, J.)).
The simplest response is that these dissents follow from
prior separate writings, not from the Court's decision in

484 ESPINOZA
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Trinity Lutheran or the decades of precedent on which it
rel
ied. These precedents have “repeatedly confrmed” the
straightforward rule that we apply today: When otherwise
eligible recipients are disqualifed from a public beneft
“solely because of their religious character,” we must apply
strict scrutiny. Trinity Lutheran, 582 U. S., at 458–462.
This rule against express religious discrimination is no “doc-
trinal innovation.” Post, at 532 (opinion of Breyer, J.). Far
from it. As Trinity Lutheran explained, the rule is “unre-
markable in light of our prior decisions.” 582 U. S., at 462.
For innovation, one must look to the dissents. Their
“room[y]” or “fexible” approaches to discrimination against
religious organizations and observers would mark a signif-
cant departure from our free exercise precedents. The pro-
tections of the Free Exercise Clause do not depend on a
“judgment-by-judgment analysis” regarding whether dis-
crimination against religious adherents would somehow
serve ill-defned interests. Cf. Medellín v. Texas, 552 U. S.
491, 514 (2008).
D
Because the Montana Supreme Court applied the no-aid
provision to discriminate against schools and parents based
on the religious character of the school, the “strictest scru-
tiny” is required. Supra, at 475, 478 (quoting Trinity Lu-
theran, 582 U. S., at 463). That “stringent standard,” id., at
466, is not “watered down but really means what it says,”
Lukumi, 508 U. S., at 546 (internal quotation marks and al-
terations omitted). To satisfy it, government action “must
advance `interests of the highest order' and must be nar-
rowly tailored in pursuit of those interests.” Ibid. (quoting
McDaniel, 435 U. S., at 628).
The Montana Supreme Court asserted that the no-aid pro-
vision serves Montana's interest in separating church and
state “more fercely” than the Federal Constitution. 393
Mont., at 467, 435 P. 3d, at 614. But “that interest cannot
qualify as compelling ” in the face of the infringement of free

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485
Opinion of the Court
exercise here. Trinity Lutheran, 582 U. S., at 466. A
St
ate's interest “in achieving greater separation of church
and State than is already ensured under the Establishment
Clause . . . is limited by the Free Exercise Clause.” Ibid.
(quoting Widmar v. Vincent, 454 U. S. 263, 276 (1981)).
The Department, for its part, asserts that the no-aid provi-
sion actually promotes religious freedom. In the Depart-
ment's view, the no-aid provision protects the religious lib-
erty of taxpayers by ensuring that their taxes are not
directed to religious organizations, and it safeguards the
freedom of religious organizations by keeping the govern-
ment out of their operations. See Brief for Respondents 17–
23. An infringement of First Amendment rights, however,
cannot be justifed by a State's alternative view that the in-
fringement advances religious liberty. Our federal system
prizes state experimentation, but not “state experimentation
in the suppression of free speech,” and the same goes for the
free exercise of religion. Boy Scouts of America v. Dale,
530 U. S. 640, 660 (2000).
Furthermore, we do not see how the no-aid provision pro-
motes religious freedom. As noted, this Court has repeat-
edly upheld government programs that spend taxpayer
funds on equal aid to religious observers and organizations,
particularly when the link between government and religion
is attenuated by private choices. A school, concerned about
government involvement with its religious activities, might
reasonably decide for itself not to participate in a govern-
ment program. But we doubt that the school's liberty is en-
hanced by eliminating any option to participate in the frst
place.
The Department's argument is especially unconvincing
because the infringement of religious liberty here broadly
affects both religious schools and adherents. Montana's
no-aid provision imposes a categorical ban—“broadly and
strictly” prohibiting “any type of aid” to religious schools.
393 Mont., at 462–463, 435 P. 3d, at 611. This prohibition is

486 ESPINOZA
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far more sweeping than the policy in Trinity Lutheran,
wh
ich barred churches from one narrow program for play-
ground resurfacing—causing “in all likelihood” only “a few
extra scraped knees.” 582 U. S., at 467.
And the prohibition before us today burdens not only reli-
gious schools but also the families whose children attend or
hope to attend them. Drawing on “enduring American tra-
dition,” we have long recognized the rights of parents to di-
rect “the religious upbringing ” of their children. Wiscon-
sin v. Yoder, 406 U. S. 205, 213–214, 232 (1972). Many
parents exercise that right by sending their children to reli-
gious schools, a choice protected by the Constitution. See
Pierce v. Society of Sisters, 268 U. S. 510, 534–535 (1925).
But the no-aid provision penalizes that decision by cutting
families off from otherwise available benefts if they choose
a religious private school rather than a secular one, and for
no other reason.
The Department also suggests that the no-aid provision
advances Montana's interests in public education. Accord-
ing to the Department, the no-aid provision safeguards the
public school system by ensuring that government support
is not diverted to private schools. See Brief for Respond-
ents 19, 25. But, under that framing, the no-aid provision is
fatally underinclusive because its “proffered objectives are
not pursued with respect to analogous nonreligious conduct.”
Lukumi, 508 U. S., at 546. On the Department's view, an
interest in public education is undermined by diverting gov-
ernment support to any private school, yet the no-aid provi-
sion bars aid only to religious ones. A law does not advance
“an interest of the highest order when it leaves appreciable
damage to that supposedly vital interest unprohibited.” Id.,
at 547 (internal quotation marks and alterations omitted).
Montana's interest in public education cannot justify a no-aid
provision that requires only religious private schools to
“bear [its] weight.” Ibid.

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A State need not subsidize private education. But once a
St
ate decides to do so, it cannot disqualify some private
schools solely because they are religious.
III
The Department argues that, at the end of the day, there
is no free exercise violation here because the Montana Su-
preme Court ultimately eliminated the scholarship program
altogether. According to the Department, now that there is
no program, religious schools and adherents cannot complain
that they are excluded from any generally available beneft.
Two dissenters agree. Justice Ginsburg reports that
the State of Montana simply chose to “put all private school
parents in the same boat” by invalidating the scholarship
program, post, at 519, and Justice Sotomayor describes the
decision below as resting on state law grounds having noth-
ing to do with the federal Free Exercise Clause, see post,
at 538, 543.
The descriptions are not accurate. The Montana Legisla-
ture created the scholarship program; the legislature never
chose to end it, for policy or other reasons. The program
was eliminated by a court, and not based on some innocuous
principle of state law. Rather, the Montana Supreme Court
invalidated the program pursuant to a state law provision
that expressly discriminates on the basis of religious status.
The Court applied that provision to hold that religious
schools were barred from participating in the program.
Then, seeing no other “mechanism” to make absolutely sure
that religious schools received no aid, the court chose to in-
validate the entire program. 393 Mont., at 466–468, 435
P. 3d, at 613–614.
The fnal step in this line of reasoning eliminated the pro-
gram, to the detriment of religious and non-religious schools
alike. But the Court's error of federal law occurred at the
beginning. When the Court was called upon to apply a state

488 ESPINOZA
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Opinion of the Court
law no-aid provision to exclude religious schools from the
program,
it was obligated by the Federal Constitution to re-
ject the invitation. Had the Court recognized that this was,
indeed, “one of those cases” in which application of the no-
aid provision “would violate the Free Exercise Clause,” id.,
at 468, 435 P. 3d, at 614, the Court would not have proceeded
to fnd a violation of that provision. And, in the absence of
such a state law violation, the Court would have had no basis
for terminating the program. Because the elimination of
the program fowed directly from the Montana Supreme
Court's failure to follow the dictates of federal law, it cannot
be defended as a neutral policy decision, or as resting on
adequate and independent state law grounds.
4
The Supremacy Clause provides that “the Judges in every
State shall be bound” by the Federal Constitution, “any
Thing in the Constitution or Laws of any State to the Con-
trary notwithstanding.” Art. VI, cl. 2. “[T]his Clause cre-
ates a rule of decision” directing state courts that they “must
not give effect to state laws that confict with federal law[ ].”
Armstrong v. Exceptional Child Center, Inc., 575 U. S. 320,
324 (2015). Given the confict between the Free Exercise
Clause and the application of the no-aid provision here, the
Montana Supreme Court should have “disregard[ed]” the no-
aid provision and decided this case “conformably to the
[C]onstitution” of the United States. Marbury v. Madison,
1 Cranch 137, 178 (1803). That “supreme law of the land”
condemns discrimination against religious schools and the
families whose children attend them. Id., at 180. They are
4
Justice Sotomayor worries that, in light of our decision, the Montana
Supreme Court must “order the State to recreate” a scholarship program
that “no longer exists.” Post, at 544 (dissenting opinion). But it was the
Montana Supreme Court that eliminated the program, in the decision
below, which remains under review. Our reversal of that decision simply
restores the status quo established by the Montana Legislature before
the Court's error of federal law. We do not consider any alterations the
Legislature may choose to make in the future.

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Thomas, J., concurring
“member[s] of the community too,” and their exclusion from
the
scholarship program here is “odious to our Constitu-
tion” and “cannot stand.” Trinity Lutheran, 582 U. S., at
463, 467.
5
* * *
The judgment of the Montana Supreme Court is reversed,
and the case is remanded for further proceedings not incon-
sistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Gorsuch joins,
concurring.
The Court correctly concludes that Montana's no-aid provi-
sion expressly discriminates against religion in violation of
the Free Exercise Clause. And it properly provides relief
to Montana religious schools and the petitioners who wish to
use Montana's scholarship program to send their children to
such schools. I write separately to explain how this Court's
interpretation of the Establishment Clause continues to
hamper free exercise rights. Until we correct course on
that interpretation, individuals will continue to face needless
obstacles in their attempts to vindicate their religious
freedom.
I
A
This case involves the Free Exercise Clause, not the Es-
tablishment Clause. But as in all cases involving a state
actor, the modern understanding of the Establishment
Clause is a “brooding omnipresence,” Southern Pacifc Co. v.
Jensen, 244 U. S. 205, 222 (1917) (Holmes, J., dissenting), ever
ready to be used to justify the government's infringement on
religious freedom. Under the modern, but erroneous, view
5
In light of this holding, we do not address petitioners' claims that the
no-aid provision, as applied, violates the Equal Protection Clause or the
Establishment Clause.

490 ESPINOZA
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Thomas, J., concurring
of the Establishment Clause, the government must treat all
rel
igions equally and treat religion equally to nonreligion.
As this Court stated in its frst case applying the Establish-
ment Clause to the States, the government cannot “pass laws
which aid one religion, aid all religions, or prefer one religion
over another.” Everson v. Board of Ed. of Ewing, 330
U. S. 1, 15 (1947); see also post, at 521–522 (Breyer, J., dis-
senting). This “equality principle,” the theory goes, prohib-
its the government from expressing any preference for reli-
gion—or even permitting any signs of religion in the
governmental realm. Thus, when a plaintiff brings a free
exercise claim, the government may defend its law, as Mon-
tana did here, on the ground that the law's restrictions are
required to prevent it from “establishing ” religion.
This understanding of the Establishment Clause is un-
moored from the original meaning of the First Amendment.
As I have explained in previous cases, at the founding, the
Clause served only to “protec[t] States, and by extension
their citizens, from the imposition of an established religion
by the Federal Government.” Zelman v. Simmons-Harris,
536 U. S. 639, 678 (2002) (concurring opinion) (emphasis
added); see also, e. g., Town of Greece v. Galloway, 572 U. S.
565, 604–607 (2014) (opinion concurring in part and concur-
ring in judgment); Elk Grove Unifed School Dist. v. New-
dow, 542 U. S. 1, 49–50 (2004) (opinion concurring in judg-
ment). Under this view, the Clause resists incorporation
against the States. See Town of Greece, 572 U. S., at 604
(opinion of Thomas, J.).
There is mixed historical evidence concerning whether the
Establishment Clause was understood as an individual right
at the time of the Fourteenth Amendment's ratifcation. Id.,
at 607–608. Even assuming that the Clause creates a right
and that such a right could be incorporated, however, it
would only protect against an “establishment” of religion as
understood at the founding, i. e., “ `coercion of religious or-
thodoxy and of fnancial support by force of law and threat

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Thomas, J., concurring
of penalty.' ” Id., at 608 (quoting Lee v. Weisman, 505 U. S.
577,
640 (1992) (Scalia, J., dissenting); emphasis deleted);
American Legion v. American Humanist Assn., 588 U. S.
29, 75–76 (2019) (Thomas, J., concurring in judgment); see
also McConnell, Establishment and Disestablishment at the
Founding, Part I: Establishment of Religion, 44 Wm. & Mary
L. Rev. 2105, 2131–2181 (2003); McConnell, Coercion: The
Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933,
936–939 (1986).
1
Thus, the modern view, which presumes that States must
remain both completely separate from and virtually silent on
matters of religion to comply with the Establishment Clause,
is fundamentally incorrect. Properly understood, the Es-
tablishment Clause does not prohibit States from favoring
religion. They can legislate as they wish, subject only to
the limitations in the State and Federal Constitutions. See
Muñoz, The Original Meaning of the Establishment Clause
and the Impossibility of Its Incorporation, 8 U. Pa. J.
Const. L. 585, 632 (2006).
B
I have previously made these points in Establishment
Clause cases to show that the Clause likely has no application
to the States or, if it is capable of incorporation, that the
Court employs a far broader test than the Clause's original
meaning. See, e. g., American Legion, 588 U. S., at 73–74
(opinion concurring in judgment); Town of Greece, 572 U. S.,
at 604 (opinion concurring in part and concurring in judg-
ment). But the Court's wayward approach to the Establish-
ment Clause also impacts its free exercise jurisprudence.
Specifcally, its overly expansive understanding of the former
1
A party wishing to expand the scope of the Establishment Clause be-
yond its meaning at the founding carries the burden of demonstrating that
this broader reading is historically sound. Town of Greece v. Galloway,
572 U. S. 565, 607–608 (2014) (Thomas, J., concurring in part and concur-
ring in judgment).

492 ESPINOZA
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Thomas, J., concurring
Clause has led to a correspondingly cramped interpretation
of
the latter.
Under this Court's current approach, state and local gov-
ernments may rely on the Establishment Clause to justify
policies that others wish to challenge as violations of the
Free Exercise Clause. Once the government demonstrates
that its policy is required for compliance with the Constitu-
tion, any claim that the policy infringes on free exercise can-
not survive. A few examples suffce to illustrate this practice.
Of most relevance to this case is Locke v. Davey, 540 U. S.
712 (2004), which Montana principally relies on to justify its
discriminatory law. In Locke, the Court held that prohibit-
ing a student from using a generally available state scholar-
ship to pursue a degree in devotional theology did not violate
the student's free exercise rights. This was so, the Court
said, in part because it furthered the State's “antiestablish-
ment interests” in avoiding the education of religious minis-
ters. Id., at 722. But no antiestablishment interests, prop-
erly understood, were at issue in Locke. The State neither
coerced students to study devotional theology nor con-
scripted taxpayers into supporting any form of orthodoxy.
Thus, as I have explained, Locke incorrectly interpreted the
Establishment Clause and should not impact free exercise
challenges. Trinity Lutheran Church of Columbia, Inc. v.
Comer, 582 U. S. 449, 468 (2017) (opinion concurring in part).
Yet, as Montana's proffered justifcation for its law shows,
governments continue to rely on Locke's improper under-
standing of “antiestablishment interests” to defend against
free exercise challenges. See Brief for State of Colorado
et al. as Amici Curiae 3, 10–12 (arguing that Locke justifes
the 38 state constitutional provisions that are similar to Mon-
tana's); see also Trinity Lutheran Church of Columbia, Inc.
v. Pauley, 788 F. 3d 779, 785 (CA8 2015), rev'd and remanded,
582 U. S. 449; Eulitt v. Maine, 386 F. 3d 344, 354 (CA1 2004);
post, at 524–527 (Breyer, J., dissenting); post, at 546–548
(Sotomayor, J., dissenting).

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Thomas, J., concurring
The Court has also repeatedly stated that a government
has
a compelling interest in avoiding an Establishment
Clause violation altogether, which “may justify” abridging
other First Amendment freedoms. See Good News Club v.
Milford Central School, 533 U. S. 98, 112 (2001); Lamb's
Chapel v. Center Moriches Union Free School Dist., 508
U. S. 384, 394 (1993); Widmar v. Vincent, 454 U. S. 263, 271
(1981). Unsurprisingly, governmental employers have re-
lied on these pronouncements to defeat challenges from em-
ployees who alleged violations of their First Amendment
rights. See, e. g., Berry v. Department of Social Servs., 447
F. 3d 642, 650–651 (CA9 2006); Knight v. Connecticut Dept.
of Public Health, 275 F. 3d 156, 166 (CA2 2001); Marchi v.
Board of Cooperative Ed. Servs. of Albany, 173 F. 3d 469,
475 (CA2 1999).
Finally, this Court's infamous test in Lemon v. Kurtzman,
403 U. S. 602 (1971), has sometimes been understood to pro-
hibit governmental practices that have the effect of endors-
ing religion. See Lynch v. Donnelly, 465 U. S. 668, 692
(1984) (O'Connor, J., concurring). This, too, presupposes that
the Establishment Clause prohibits the government from fa-
voring religion or taking steps to promote it. But as de-
scribed supra, at 490–491, the Establishment Clause does
nothing of the sort. The concern with avoiding endorsement
has nevertheless been used to prohibit voluntary practices
that potentially implicate free exercise rights, with courts
and governments going so far as to make the “remarkable”
suggestion “that even while off duty, a teacher or coach can-
not engage in any outward manifestation of religious faith.”
Kennedy v. Bremerton School Dist., 586 U. S. 1130, 1133
(2019) (Alito, J., statement respecting denial of certiorari);
see Santa Fe Independent School Dist. v. Doe, 530 U. S. 290,
308 (2000) (voluntary decision to begin football games with a
prayer violated the Establishment Clause); see also Kennedy
v. Bremerton School Dist., 869 F. 3d 813, 831 (CA9 2017)
(M. Smith, J., concurring) (coach's decision to lead voluntary

494 ESPINOZA
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Thomas, J., concurring
prayer after football games); Walz v. Egg Harbor Twp. Bd.
o
f Ed., 342 F. 3d 271, 280 (CA3 2003) (student's decision to
distribute small gifts with religious messages to classmates).
II
The Court's current understanding of the Establishment
Clause actually thwarts, rather than promotes, equal treat-
ment of religion. Under a proper understanding of the Es-
tablishment Clause, robust and lively debate about the role
of religion in government is permitted, even encouraged, at
the state and local level. The Court's distorted view of the
Establishment Clause, however, removes the entire subject
of religion from the realm of permissible governmental activ-
ity, instead mandating strict separation.
This interpretation of the Establishment Clause operates
as a type of content-based restriction on the government.
The Court has interpreted the Free Speech Clause to pro-
hibit content-based restrictions because they “value some
forms of speech over others,” City of Ladue v. Gilleo, 512
U. S. 43, 60 (1994) (O'Connor, J., concurring), thus tending to
“tilt public debate in a preferred direction,” Sorrell v. IMS
Health Inc., 564 U. S. 552, 578–579 (2011). The content-
based restriction imposed by this Court's Establishment
Clause jurisprudence operates no differently. It communi-
cates a message that religion is dangerous and in need of
policing, which in turn has the effect of tilting society in
favor of devaluing religion.
Historical evidence suggests that many advocates for this
separationist view were originally motivated by hostility to-
ward certain disfavored religions. See P. Hamburger, Sepa-
ration of Church and State 391–454 (2002). And this Court's
adoption of a separationist interpretation has itself some-
times bordered on religious hostility. Justice Black, well
known for his role in formulating the Court's modern Estab-
lishment Clause jurisprudence, once descr ibed Catholic
petitioners as “powerful sectarian religious propagandists”

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Thomas, J., concurring
“looking toward complete domination and supremacy” of
their
“preferences and prejudices.” Board of Ed. of Central
School Dist. No. 1 v. Allen, 392 U. S. 236, 251 (1968) (dissent-
ing opinion). Other Members of the Court have character-
ized religions as “divisive forces.” Edwards v. Aguillard,
482 U. S. 578, 584 (1987) (internal quotation marks omitted);
Board of Ed. of Westside Community Schools (Dist. 66) v.
Mergens, 496 U. S. 226, 287 (1990) (Stevens, J., dissenting)
(internal quotation marks omitted); Illinois ex rel. McCol-
lum v. Board of Ed. of School Dist. No. 71, Champaign Cty.,
333 U. S. 203, 231 (1948) (Frankfurter, J., concurring). And
the Court once described a statute permitting employees to
request accommodations to avoid work on the Sabbath as
“arm[ing]” religious employees with the “absolute and un-
qualifed right” to pursue their religion “over all other inter-
ests.” Estate of Thornton v. Caldor, Inc., 472 U. S. 703,
709–711 (1985). The siren song of religion is apparently so
strong that we once held that public school teachers cannot
provide assistance at parochial schools, lest they “subtly (or
overtly) conform their instruction to the environment in
which they teach.” School Dist. of Grand Rapids v. Ball,
473 U. S. 373, 388 (1985), overruled by Agostini v. Felton,
521 U. S. 203, 235 (1997). In the Court's view, “[t]he `atmos-
phere' of a Catholic school ha[d] such power to infuence the
unsuspecting mind that it may move even public school . . .
specialists to `conform'—though their only contact with the
school is to walk down its halls.” McConnell, Religious
Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 122 (1992).
Although such hostility may not be overtly expressed by
the Court any longer, manifestations of this “trendy disdain
for deep religious conviction” assuredly live on. Locke, 540
U. S., at 733 (Scalia, J., dissenting). They are evident in the
fact that, unlike other constitutional rights, the mere expo-
sure to religion can render an “ `offended observer' ” suff-
ciently injured to bring suit against the government, Ameri-
can Legion, 588 U. S., at 80 (Gorsuch, J., concurring in

496 ESPINOZA
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Thomas, J., concurring
judgment), even if he has not been coerced in any way to
par
ticipate in a religious practice, Lee, 505 U. S., at 584;
Engel v. Vitale, 370 U. S. 421, 430 (1962).
2
We also see them
in the special privilege of taxpayer standing in Establish-
ment Clause challenges, even though such suits directly con-
travene Article III's restrictions on standing. See Hein v.
Freedom From Religion Foundation, Inc., 551 U. S. 587, 618
(2007) (Scalia, J., concurring in judgment); see also Bowen v.
Kendrick, 487 U. S. 589, 618–620 (1988); Flast v. Cohen, 392
U. S. 83, 102–104 (1968). And they persist in the repeated
denigration of those who continue to adhere to traditional
moral standards, as well as laws even remotely infuenced by
such standards, as outmoded at best and bigoted at worst.
See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Comm'n, 584 U. S. 617, 667 (2018) (Thomas, J., concurring in
part and concurring in judgment); Obergefell v. Hodges, 576
U. S. 644, 712 (2015) (Roberts, C. J., dissenting). So long
as this hostility remains, fostered by our distorted under-
standing of the Establishment Clause, free exercise rights
will continue to suffer.
***
As I have recently explained, this Court has an unfortunate
tendency to prefer certain constitutional rights over others.
See United States v. Sineneng-Smith, 590 U. S. 371, 387–388
(2020) (Thomas, J., concurring). The Free Exercise Clause,
although enshrined explicitly in the Constitution, rests on
the lowest rung of the Court's ladder of rights, and precari-
ously so at that. Returning the Establishment Clause to its
proper scope will not completely rectify the Court's dispar-
ate treatment of constitutional rights, but it will go a long
2
This stands in striking contrast to the Court's view in the free speech
context that “the burden normally falls upon the viewer” to avoid offense
“simply by averting his eyes.” Hill v. Colorado, 530 U. S. 703, 753, n. 3
(2000) (Scalia, J., dissenting) (quoting Erznoznik v. Jacksonville, 422 U. S.
205, 210–211 (1975) (quotation altered)).

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Alito, J., concurring
way toward allowing free exercise of religion to fourish as
the
Framers intended. I look forward to the day when the
Court takes up this task in earnest.
Justice Alito, concurring.
I join the opinion of the Court in full. The basis of the
decision below was a Montana constitutional provision that,
according to the Montana Supreme Court, prohibits parents
from participating in a publicly funded scholarship program
simply because they send their children to religious schools.
Regardless of the motivation for this provision or its prede-
cessor, its application here violates the Free Exercise Clause.
Nevertheless, the provision's origin is relevant under the
decision we issued earlier this Term in Ramos v. Louisiana,
590 U. S. 83 (2020). The question in Ramos was whether Lou-
isiana and Oregon laws allowing non-unanimous jury verdicts
in criminal trials violated the Sixth Amendment. The Court
held that they did, emphasizing that the States originally
adopted those laws for racially discriminatory reasons. See
id., at 87–89. The role of the Ku Klux Klan was highlighted.
See ibid.; see also id., at 114–115 (Sotomayor, J., concurring
in part); id., at 126–127 (Kavanaugh, J., concurring in part).
I argued in dissent that this original motivation, though
deplorable, had no bearing on the laws' constitutionality be-
cause such laws can be adopted for non-discriminatory rea-
sons, and “both States readopted their rules under different
circumstances in later years.” Id., at 142. But I lost, and
Ramos is now precedent. If the original motivation for the
laws mattered there, it certainly matters here.
The origin of Montana's “no-aid” provision, Mont. Const.,
Art. X, § 6(1) (1972), is emphasized in petitioners' brief and
in the briefs of numerous supporting amici. See Brief for
Petitioners 31–45; Brief for United States as Amicus Curiae
1–2, 25; Brief for Center for Constitutional Jurisprudence as
Amicus Curiae 10–12; Brief for Pioneer Institute, Inc., as
Amicus Curiae 5–17; Brief for Cato Institute as Amicus Cu-

498 ESPINOZA
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Alito, J., concurring
riae 2; Brief for State of Oklahoma et al. as Amici Curiae
16;
Brief for Montana Catholic School Parents et al. as Amici
Curiae 21–25; Brief for Senator Steve Daines et al. as Amici
Curiae 1–27 (Sen. Daines Brief ); Brief for Becket Fund for
Religious Liberty as Amicus Curiae 4–20 (Becket Fund
Brief ); Brief for the Rutherford Institute as Amicus Curiae
2–10; Brief for Georgia Goal Scholarship Program, Inc., as
Amicus Curiae 1–5, 16–21; Brief for Liberty Justice Center
et al. as Amici Curiae 16–17; Brief for Alliance for Choice
in Education as Amicus Curiae 4–8; Brief for Independence
Institute as Amicus Curiae 4–26 (Independence Institute
Brief ); Brief for Jewish Coalition for Religious Liberty as
Amicus Curiae 1–5; Brief for Rusty Bowers et al. as Amici
Curiae 8–9; Brief for Center for Education Reform et al. as
Amici Curiae 21–27 (CER Brief ); Brief for Montana Family
Foundation as Amicus Curiae 9–13; Brief for Arizona Chris-
tian School Tuition Organization et al. as Amici Curiae 14–
22; Brief for Justice and Freedom Fund et al. as Amici
Curiae 22–23; Brief for 131 Current and Former State Leg-
islators as Amici Curiae 2–10.
These briefs, most of which were not fled by organizations
affliated with the Catholic Church, point out that Montana's
provision was modeled on the failed Blaine Amendment to
the Constitution of the United States. Named after House
Speaker James Blaine, the Congressman who introduced it
in 1875, the amendment was prompted by virulent prejudice
against immigrants, particularly Catholic immigrants. In ef-
fect, the amendment would have “bar[red] any aid” to Catholic
and other “sectarian” schools. Mitchell v. Helms, 530 U. S.
793, 828 (2000) (plurality opinion). As noted in a publication
from the United States Commission on Civil Rights, a promi-
nent supporter of this ban was the Ku Klux Klan.
1
The Blaine Amendment was narrowly defeated, passing in
the House but falling just short of the two-thirds majority
1
See U. S. Commission on Civil Rights, School Choice: The Blai ne
Amendments & Anti-Catholicism 36 (2007).

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499
Alito, J., concurring
needed in the Senate to refer the amendment to the States.
See
4 Cong. Rec. 5191–5192 (1876) (House vote); id., at 5595
(28 yeas, 16 nays in the Senate). Afterwards, most States
adopted provisions like Montana's to achieve the same ob-
jective at the state level, often as a condition of entering
the Uni on. Th ir ty-eight States still have these “ little
Blai ne Amendments” today. See App. D to Br ief for
Respondents.
This history is well-known and has been recognized in
opinions of this Court. See, e. g., Locke v. Davey, 540 U. S.
712, 723, n. 7 (2004); Mitchell, 530 U. S., at 828–829 (plurality
opinion); see also ante, at 482; Zelman v. Simmons-Harris,
536 U. S. 639, 720–721 (2002) (Breyer, J., dissenting). But
given respondents' and one dissent's efforts to downplay it
in contravention of Ramos, see Brief for Respondents 16–23;
post, at 542, n. 2 (Sotomayor, J., dissenting), it deserves a
brief retelling.
A wave of immigration in the mid-19th century, spurred in
part by potato blights in Ireland and Germany, signifcantly
increased this country's Catholic population.
2
Nativist fears
increased with it. An entire political party, the Know Noth-
ings, formed in the 1850s “to decrease the political infuence
of immigrants and Catholics,” gaining hundreds of seats in
Federal and State Government.
3
Catholics were considered by such groups not as citizens
of the United States, but as “soldiers of the Church of
Rome,”
4
who “would attempt to subvert representative gov-
ernment.”
5
Catholic education was a particular concern.
As one series of newspaper articles argued, “ `Popery is the
natural enemy of general education. . . . If it is establishing
schools, it is to make them prisons of the youthful intellect
2
See T. Anbinder, Nativism and Slavery: The Northern Know Nothings
and the Politics of the 1850s, pp. 6–8 (1992).
3
Id., at 127–128, 135.
4
Id., at 110 (emphasis deleted).
5
P. Hamburger, Separation of Church and State 206 (2002).

500 ESPINOZA
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Alito, J., concurring
of the country.' ” C. Glenn, The Myth of the Common School
69
(1988) (Glenn) (quoting S. Morse, Foreign Conspiracy
Against the Liberties of the United States (1835)). With a
Catholic school breaking ground in New York City, the New
York Times ran an article titled “Sectarian Education.
Anti-Public School Crusade. Aggressive Attitude of the
Roman Catholic Clergy—The Terrors of the Church Threat-
ened.” N. Y. Times, Aug. 24, 1873, p. 8. The project, the
article concluded, would cause “intense anxiety by all who
are interested in upholding the admirable system of public
school education.” Ibid.
The feelings of the day are perhaps best encapsulated by
this famous cartoon, published in Harper's Weekly in 1871,
which depicts Catholic priests as crocodiles slithering hun-
grily toward American children as a public school crumbles
in the background:
The resulting wave of state laws withholding public aid
from “sectarian” schools cannot be understood outside this
context. Indeed, there are stronger reasons for considering

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501
Alito, J., concurring
original motivations here than in Ramos because, unlike the
neutra
l language of Louisiana's and Oregon's nonunanimity
rules, Montana's no-aid provision retains the bigoted code
language used throughout State Blaine Amendments.
The failed Blaine Amendment would have prohibited any
public funds or lands devoted to schooling from “ever be[ing]
under the control of any religious sect.” 4 Cong. Rec. 205
(1875). As originally adopted, Montana's Constitution pro-
hibited the state and local governments from “ever mak[ing,]
directly or indirectly, any appropriation” for “any sectarian
purpose” or “to aid in the support of any school . . . controlled
in whole or in part by any church, sect or denomination
whatever.” Mont. Const., Art. XI, § 8 (1889). At the time,
“it was an open secret that `sectarian' was code for `Catho-
lic.' ” Mitchell, 530 U. S., at 828 (plurality opinion). Dic-
tionaries defned a “sectarian” as a member “of a party in
religion which has separated itself from the established
church, or which holds tenets different from those of the pre-
vailing denomination in a kingdom or state”—a heretic. N.
Webster, An American Dictionary of the English Language
(1828); see also Independence Institute Brief 9–16 (collecting
several similar defnitions). Newspapers throughout the
country, including in Montana, used the word in similarly
pejorative fashion. See id., at 17–26 (collecting several arti-
cles). The term was likewise used against Mormons and
Jews.
6
Backers of the Blaine Amendment either held nativist
views or capitalized on them. When Blaine introduced the
amendment, The Nation reported that it was “a Constitu-
tional amendment directed against the Catholics”—while
surmising that Blaine, whose Presidential ambitions were
known, sought “to use it in the campaign to catch anti-
6
See Natelson, Why Nineteenth Century Bans on “Sectarian” Aid Are
Facially Unconstitutional: New Evidence on Plain Meaning, 19 Federalist
Soc. Rev. 98, 104 (2018).

502 ESPINOZA
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Alito, J., concurring
Catholic votes.”
7
The
amendment had its intended galva-
nizing effect. “Its popularity was so great” that “even con-
gressional Democrats,” who depended on Catholic votes,
“were expected to support it,” and the congressional foor
debates were rife with anti-Catholic sentiment, including “a
tirade against Pope Pius IX.”
8
Montana's no-aid provision was the result of this same
prejudice. When Congress allowed Montana into the Union
in 1889, it still included prominent supporters of the failed
Blaine Amendment. See Sen. Daines Brief 10–13. The Act
enabling Montana to become a State required “[t]hat provi-
sion shall be made for the establishment and maintenance of
systems of public schools . . . free from sectarian control.”
Act of Feb. 22, 1889, § 4, 25 Stat. 677; see also Becket Fund
Brief 17–18 (quoting one Senator's description of the Act as
“ `completing the unfnished work of the failed Blaine Amend-
ment' ”). Montana thereafter adopted its constitutional rule
against public funding for any school “controlled” by a “sect.”
Mont. Const., Art. XI, § 8 (1889). There appears to have
been no doubt which schools that meant. As petitioners
show, Montana's religious schools—and its private schools in
general—were predominantly Catholic, see Brief for Peti-
tioners 42, and n. 41, and anti-Catholicism was alive in Mon-
tana too. See, e. g., Sen. Daines Brief 1–3 (describing a riot
over an anti-Catholic sign hung over a Butte saloon on Inde-
pendence Day, 1894).
Respondents argue that Montana's no-aid provision merely
refects a state interest in “preserv[ing] funding for public
schools, ” Br ief for Respondents 7, known as common
schools during the Blaine era. Yet just as one cannot sepa-
rate the Blaine Amendment from its context, “[o]ne cannot
7
Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38,
54 (1992) (quoting article; internal quotation marks omitted).
8
DeForrest, An Overview and Evaluation of State Blaine Amendments:
Origins, Scope, and First Amendment Concerns, 26 Harv. J. L. & Pub.
Pol'y 551, 566, 570 (2003); see also, e. g., Becket Fund Brief 5–11.

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Alito, J., concurring
separate the founding of the American common school and
the
strong nativist movement.”
9
Spearheaded by Horace Mann, Secretary of the Massachu-
setts Board of Education from 1837 to 1848, the common-
school movement did not aim to establish a system that was
scrupulously neutral on matters of religion. (In a country
like ours, that would have been exceedingly diffcult, if not
impossible.) Instead the aim was to establish a system that
would inculcate a form of “least-common-denominator Pro-
testantism.”
10
This was accomplished with daily reading
from the King James Bible, a curriculum that, Mann said, let
the book “speak for itself.” 4 Life and Works of Horace
Mann 312 (1891) (Mann's 12th annual report on the Massa-
chusetts schools; emphasis deleted). Yet it was an affront
to many Christians and especially Catholics, not to mention
non-Christians.
11
Mann's goal was to “Americanize” the incoming Catho-
lic immigrants. In fact, he and other proponents of the
common-school movement used language and made insin-
uations that today would be considered far more infam-
matory. In h is 10th annua l repor t on the Massachu-
setts schools, Mann described the State as “parental,”
assumi ng the responsibil ity of weani ng ch ildren “ [f ]or
the support of the poor, nine-tenths of whose cost origi-
nate with foreigners or come from one prolifc vice,” mean-
ing alcohol. Id., at 132, 134 (emphasis deleted). In other
writing, he described the common-school movement as
“ `laboring to elevate mankind into the upper and purer re-
9
Viteritti, Blaine's Wake: School Choice, the First Amendment, and
State Constitutional Law, 21 Harv. J. L. & Pub. Pol'y 657, 667 (1998) (Viter-
itti, Blaine's Wake).
10
Jeffries & Ryan, A Political History of the Establishment Clause, 100
Mich. L. Rev. 279, 298 (2001) (Jeffries & Ryan); see also, e. g., CER Brief
23–26.
11
See Glenn 166; Lain, God, Civic Virtue, and the American Way: Recon-
structing Engel, 67 Stan. L. Rev. 479, 487–488 (2015).

504 ESPINOZA
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Alito, J., concurring
gions of civilization, Christianity, and the worship of the true
God;
all those who are obstructing the progress of this cause
are impelling the race backwards into barbarism and idola-
try.' ” Glenn 171–172 (quoting an 1846 article by Mann in
the Common School Journal).
These “obstructers” were Catholic and other religious
groups and families who objected to the common schools' re-
ligious programming, which, as just seen, was not neutral on
matters of religion. Objections met violent response. In
Massachusetts and elsewhere, Catholic students were beaten
and expelled for refusing to read from the King James
Bible.
12
In New York, a mob destroyed the residence of
Bishop John Hughes, who had argued that, if the State was
going to fund religious public education, it should also sup-
port church schools. The militia needed to be called to pro-
tect St. Patrick's Cathedral.
13
Most notorious were the
Philadelphia Bible Riots. In 1844, a rumor circulated in
the city's nativist newspapers that a school director, who
was Catholic, had ordered that Bible reading be stopped.
14
Months of scaremongering broke out into riots that left two
of the city's Catholic churches burned and several people
dead. Only by calling out the militia and positioning a can-
non in front of a Catholic church—which itself had been tak-
ing cannon fre—were the riots ultimately quelled.
15
Catholic and Jewish schools sprang up because the com-
mon schools were not neutral on matters of religion. “Faced
with public schools that were culturally Protestant and with
curriculum[s] and textbooks that were, consequently, rife
with material that Catholics and Jews found offensive, many
12
See Jeffries & Ryan 300.
13
See Viteritti, Choosing Equality: School Choice, the Constitution, and
Civil Society 151 (1999).
14
See Sekulow & Tedesco, The Story Behind Vidal v. Girard's Execu-
tors: Joseph Story, the Philadelphia Bible Riots, and Religious Liberty, 32
Pepperdine L. Rev. 605, 630 (2005).
15
See id., at 633–638.

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Alito, J., concurring
Catholics and Orthodox Jews created separate schools,” and
those
“who could afford to do so sent their children to”
those schools.
16
But schools require signifcant funding, and when religious
organizations requested state assistance, Mann and others
labeled them “sectarian”—that is, people who had separated
from the prevailing orthodoxy. See, e. g., Jeffries & Ryan
298, 301. The Blaine movement quickly followed. In 1854,
the Know Nothing party, in many ways a forerunner of the
Ku Klux Klan,
17
took control of the legislature in Mann's
Commonwealth of Massachusetts and championed one of the
frst constitutional bans on aid to “sectarian” schools (along
with attempting to limit the franchise to native-born people).
See Viteritti, Blaine's Wake 669–670.
Respondents and one dissent argue that Montana's no-aid
provision was cleansed of its bigoted past because it was re-
adopted for non-bigoted reasons in Montana's 1972 constitu-
tional convention. See post, at 541–542, n. 2 (opinion of So-
tomayor, J.); see also Brief for Respondents 18; Tr. of Oral
Arg. 22–23. They emphasize that the convention included
Catholics, just as the constitutional convention that re-
adopted Louisiana's purportedly racist non-unanimous jury
provision included black delegates. As noted, a virtually
identical argument was rejected in Ramos, even though “ `no
mention was made of race' ” during the Louisiana convention
debates. 590 U. S., at 142 (Alito, J., dissenting) (quoting
State v. Hankton, 2012–0375, p. 19 (La. App. 4 Cir. 8/2/13),
122 So. 3d 1028, 1038). Under Ramos, it emphatically does
not matter whether Montana readopted the no-aid provision
for benign reasons. The provision's “uncomfortable past”
16
Brief for Union of Orthodox Jewish Congregations of America as Ami-
cus Curiae in Trinity Lutheran Church of Columbia, Inc. v. Comer, O. T.
2016, No. 15–577, p. 15 (internal quotation marks, citation, and brackets
omitted).
17
See generally Myers, Know Nothing and Ku Klux Klan, 219 North
Am. Rev. 1 (Jan. 1924).

506 ESPINOZA
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Alito, J., concurring
must still be “[e]xamined.” 590 U. S., at 99, n. 44 (opinion
of
the Court). And here, it is not so clear that the animus
was scrubbed.
Delegates at Montana's constitutional convention in 1972
acknowledged that the no-aid provision was “a badge of big-
otry,” with one Catholic delegate recalling “being let out of
school in the fourth grade to erase three `Ks' on the front
doors of the Catholic church in Billings.”
18
Nevertheless
the convention proposed, and the State adopted, a provision
with the same material language, prohibiting public aid “for
any sectarian purpose or to aid any . . . school . . . controlled
in whole or in part by any church, sect, or denomination.”
Mont. Const., Art. X, § 6(1) (1972) (emphasis added). A lead-
ing defnition of “sect” at the time, as during the Blaine era,
was “a dissenting religious body; esp: one that is heretical
in the eyes of other members within the same communion.”
Webster's Third New International Dictionary 2052 (1971)
(some emphasis added).
Given the history above, the terms “sect” and “sectarian”
are disquieting remnants. And once again, there appears
to have been little doubt which schools this provision would
predominantly affect. In 1970, according to the National
Center for Educational Statistics, Montana had 61 religiously
affliated schools. Forty-fve were Roman Catholic.
19
Not
only did the convention delegates acknowledge the no-aid
provision's original anti-Catholic intent, but the Montana Su-
18
6 Montana Constitutional Convention 1971–1972, Proceedings and
Transcript, p. 2012 (Mont. Legislature and Legislative Council) (Conven-
tion Tr.) (statement of Delegate Schiltz); see also, e. g., id., at 2010 (state-
ment of Delegate Harbaugh) (recognizing the provision as a Blaine
Amendment, which “espoused the purpose of the Know-nothing Party”);
id., at 2011 (statement of Delegate Toole) (recognizing the provision as a
Blaine Amendment); id., at 2013 (statement of Chairman Graybill) (same);
id., at 2027 (statement of Delegate Campbell) (same); id., at 2030 (state-
ment of Delegate Champoux) (same).
19
See Nat. Center for Educational Statistics, Statistics of Nonpublic Ele-
mentary and Secondary Schools 1970–71, pp. 32–33 (1973) (Table 1).

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Alito, J., concurring
preme Court had only ever applied the provision once—to a
Cathol
ic school, and one that had “carrie[d] a sizeable portion
of the total educational load” in Anaconda, Montana. State
ex rel. Chambers v. School Dist. No. 10 of Deer Lodge Cty.,
155 Mont. 422, 430, 472 P. 2d 1013, 1017 (1970) (per curiam).
The Montana Catholic Conference also voiced concerns about
access to school funds, and a convention delegate proposed
removing the no-aid provision's restriction on “indirect”
aid. See Convention Tr. 2010, 2027. That amendment was
rejected.
Thus, the no-aid provision's terms keep it “[t]ethered” to
its original “bias,” and it is not clear at all that the State
“actually confront[ed]” the provision's “tawdry past in reen-
acting it.” Ramos, 590 U. S., at 507 (Sotomayor, J., concur-
ring in part). After all, whereas the no-aid provision had
originally been foisted on Montana, the State readopted it
voluntarily—“sectarian” references included. Whether or
not the State did so for any reason that could be called legiti-
mate, the convention delegates recognized that the provision
would “continue to mean and do whatever it does now,” Con-
vention Tr. 2014 (statement of Delegate Loendorf ), and the
discrimination in this case shows that the provision contin-
ues to have its originally intended effect. And even if Mon-
tana had done more to address its no-aid provision's past,
that would of course do nothing to resolve the bias inherent
in the Blaine Amendments among the 17 States, by respond-
ents' count, that have not readopted or amended them since
around the turn of the 20th century.
20
20
Ala. Const., Art. XIV, § 263 (1901); Ariz. Const., Art. II, § 12, Art. IX,
§ 10 (1912); Colo. Const., Art. V, § 34, Art. IX, § 7 (1876); Del. Const.,
Art. X, § 3 (1897); Ind. Const., Art. I, § 6 (1851); Ky. Const. § 189 (1891);
Miss. Const., Art. 8, § 208 (1890); Nev. Const., Art. XI, § 10 (1880); N. H.
Const., Pt. II, Art. 83 (1877); N. M. Const., Art. XII, § 3 (1911); N. D.
Const., Art. VIII, § 152 (1889); Ohio Const., Art. VI, § 2 (1851); Okla.
Const., Art. II, § 5 (1907); Ore. Const., Art. I, § 5 (1857); S. D. Const.,
Art. VIII, § 16 (1889); Wis. Const., Art. I, § 18, Art. X, § 3 (1848); Wyo.
Const., Art. I, § 19, Art. VII, § 8 (1889).

508 ESPINOZA
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Gorsuch, J., concurring
Today's public schools are quite different from those envi-
si
oned by Horace Mann, but many parents of many different
faiths still believe that their local schools inculcate a world-
view that is antithetical to what they teach at home. Many
have turned to religious schools, at considerable expense, or
have undertaken the burden of homeschooling. The tax-
credit program adopted by the Montana Legislature but
overturned by the Montana Supreme Court provided neces-
sary aid for parents who pay taxes to support the public
schools but who disagree with the teaching there. The pro-
gram helped parents of modest means do what more affuent
parents can do: send their children to a school of their choice.
The argument that the decision below treats everyone
the same is reminiscent of Anatole France's sardonic remark
that “ `[t]he law, in its majestic equality, forbids the rich as
well as the poor to sleep under bridges, to beg in the streets,
and to steal bread.' ” J. Cournos, A Modern Plutarch 35
(1928).
Justice Gorsuch, concurring.
The people of Montana, acting through their legislature,
adopted a school choice program. It provided a modest tax
credit to individuals and businesses who donated to nonproft
scholarship organizations. As the program began to take
root, Montana had just one scholarship organization. It
granted scholarships to families who were struggling fnan-
cially or had children with disabilities. Recipients were free
to use the scholarships at the schools of their choice. Some
families chose secular schools, others religious ones.
Kendra Espinoza, the lead petitioner in this case, is a sin-
gle mother who works three jobs. She planned to use schol-
arships to help keep her daughters at an accredited religious
school. That is, until the Montana Supreme Court struck
down the tax credit program. Those seeking a tax credit
were free to choose whether to direct their donations to the
independent scholarship organization; the organization was

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509
Gorsuch, J., concurring
then free to choose scholarship recipients; and, after that,
parents
were free to choose where to use those scholarships.
But, the Montana Supreme Court held, this arrangement im-
permissibly allowed state funds to fnd their way to religious
schools, in violation of a state constitutional provision. By
way of remedy, the court ordered an end to the tax credit
program, effectively killing Montana's school choice experi-
ment: Without tax credits, donations dry up, and so do the
scholarships enabling school choice.
Today, the Court explains how the Montana Constitution,
as interpreted by the State Supreme Court, violates the
First Amendment by discriminating against parents and
schools based on their religious status or identity. The
Court explains, too, why the State Supreme Court's decision
to eliminate the tax credit program fails to mask the discrim-
ination. But for the Montana Constitution's impermissible
discrimination, after all, the legislature's tax credit and
scholarship program would be still operating for the beneft
of Ms. Espinoza and everyone else. I agree with all the
Court says on these scores and join its opinion in full. I
write separately only to address an additional point.
The Court characterizes the Montana Constitution as dis-
criminating against parents and schools based on “religious
status and not religious use.” Ante, at 477. No doubt, the
Court proceeds as it does to underscore how the outcome of
this case follows from Trinity Lutheran Church of Colum-
bia, Inc. v. Comer, 582 U. S. 449 (2017), where the Court
struck down a similar public benefts restriction that, it held,
discriminated on the basis of religious status. No doubt,
too, discrimination on the basis of religious status raises
grave constitutional questions for the reasons the Court de-
scribes. But I was not sure about characterizing the State's
discrimination in Trinity Lutheran as focused only on reli-
gious status, and I am even less sure about characterizing
the State's discrimination here that way. See id., at 469
(Gorsuch, J., concurring in part).

510 ESPINOZA
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In the frst place, discussion of religious activity, uses, and
conduc
t—not just status—pervades this record. The Mon-
tana Constitution forbids the use of public funds “for any
sectarian purpose,” including to “aid” sectarian schools.
Art. X, § 6(1). Tracking this directive, the State Supreme
Court reasoned that the legislature's tax credit program could
be used to “subsidiz[e] the sectarian school's educational pro-
gram” and thereby “strengthen . . . religious education.” 393
Mont. 446, 466, 467, 435 P. 3d 603, 613, 614 (2018). Meanwhile,
Ms. Espinoza admits that she would like to use scholarship
funds to enable her daughters to be taught in school the “same
Christian values” they are taught at home. App. to Pet. for
Cert. 152. Finally, in its briefng before this Court, Mon-
tana has represented that its Constitution focuses on pre-
venting the use of tax credits to subsidize religious activity.
Not only is the record replete with discussion of activities,
uses, and conduct, any jurisprudence grounded on a status-
use distinction seems destined to yield more questions than
answers. Does Montana seek to prevent religious parents
and schools from participating in a public benefts program
(status)? Or does the State aim to bar public benefts from
bei ng employed to suppor t rel ig i ous educati on (use)?
Maybe it's possible to describe what happened here as
status-based discrimination. But it seems equally, and
maybe more, natural to say that the State's discrimination
focused on what religious parents and schools do—teach reli-
gion. Nor are the line-drawing challenges here unique; they
have arisen before and will again. See Trinity Lutheran,
582 U. S., at 469 (opinion of Gorsuch, J.).
Most importantly, though, it is not as if the First Amend-
ment cares. The Constitution forbids laws that prohibit the
free exercise of religion. That guarantee protects not just
the right to be a religious person, holding beliefs inwardly
and secretly; it also protects the right to act on those beliefs
outwardly and publicly. At the time of the First Amend-
ment's adoption, the word “exercise” meant (much as it

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511
Gorsuch, J., concurring
means today) some “[l]abour of the body,” a “[u]se,” as in the
“ac
tual application of any thing,” or a “[p]ractice,” as in some
“outward performance.” 1 S. Johnson, A Dictionary of the
English Language (4th ed. 1773); see also ibid. (5th ed. 1784).
By speaking of a right to “free exercise,” rather than a right
“of conscience,” an alternative the framers considered and
rejected, our Constitution “extended the broader freedom of
action to all believers.” McConnell, The Origins and Histor-
ical Understanding of Free Exercise of Religion, 103 Harv.
L. Rev. 1409, 1490 (1989). So whether the Montana Consti-
tution is better described as discriminating against religious
status or use makes no difference: It is a violation of the
right to free exercise either way, unless the State can show
its law serves some compelling and narrowly tailored gov-
ernmental interest, conditions absent here for reasons the
Court thoroughly explains.
Our cases have long recognized the importance of protect-
ing religious actions, not just religious status. In its very
frst decision applying the Free Exercise Clause to the
States, the Court explained that the First Amendment pro-
tects the “freedom to act” as well as the “freedom to be-
lieve.” Cantwell v. Connecticut, 310 U. S. 296, 303 (1940).
The Court then reversed a criminal conviction against New-
ton Cantwell and his sons, Jehovah's Witnesses who were
prosecuted not because of who they were but because of
what they did—proselytize door to door without a license.
See id., at 300–301, 307, 311. In fact, this Court has already
recognized that parents' decisions about the education of
their children—the very conduct at issue here—can consti-
tute protected religious activity. In Wisconsin v. Yoder, 406
U. S. 205 (1972), the Court held that Amish parents could not
be compelled to send their children to a public high school if
doing so would confict with the dictates of their faith. See
id., at 214–215, 220, 234–235.
Even cases that seemingly focus on religious status do so
with equal respect for religious actions. In McDaniel v.

512 ESPINOZA
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Gorsuch, J., concurring
Paty, 435 U. S. 618 (1978) (plurality opinion), for example, a
St
ate had barred the clergy from serving in the state legisla-
ture or at the state constitutional convention. See id., at
620–622. Some have described the discrimination there as
focused on religious “ `status.' ” Trinity Lutheran, 582
U. S., at 459 (quoting McDaniel, 435 U. S., at 627) (emphasis
deleted). But no one can question that conduct lurked just
beneath the surface. After all, the State identifed clergy
based on their “conduct and activity,” and the plurality opin-
ion concluded that the State's prohibition was based on “sta-
tus, acts, and conduct.” Id., at 627; see also id., at 630–633
(Brennan, J., concurring in judgment); Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993).
Consistently, too, we have recognized the First Amend-
ment's protection for religious conduct in public benefts
cases. When the government chooses to offer scholarships,
unemployment benefts, or other affrmative assistance to
its citizens, those benefts necessarily affect the “baseline
against which burdens on religion are measured.” Locke v.
Davey, 540 U. S. 712, 726 (2004) (Scalia, J., dissenting) (citing
Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947)).
So, as we have long explained, the government “penalize[s]
religious activity” whenever it denies to religious persons an
“equal share of the rights, benefts, and privileges enjoyed
by other citizens.” Lyng v. Northwest Indian Cemetery
Protective Assn., 485 U. S. 439, 449 (1988). What benefts
the government decides to give, whether meager or munif-
cent, it must give without discrimination against religious
conduct.
Our cases illustrate the point. In Sherbert v. Verner, 374
U. S. 398 (1963), for example, a State denied unemployment
benefts to Adell Sherbert not because she was a Seventh-
day Adventist but because she had put her faith into practice
by refusing to labor on the day she believed God had set
aside for rest. See id., at 399–401. Recognizing her right
to exercise her religion freely, the Court held that Ms. Sher-

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513
Gorsuch, J., concurring
bert was entitled to benefts. See id., at 410. Similarly, in
Tho
mas v. Review Bd. of Ind. Employment Security Div.,
450 U. S. 707 (1981), the Court held that Eddie Thomas had
the right to resign from his job and still collect an unemploy-
ment check after he decided he could not assemble military
tank turrets consistent with the teachings of his faith. See
id., at 709–712, 720. In terms that speak equally to our case,
the Court explained that the government tests the Free Ex-
ercise Clause whenever it “conditions receipt of an important
beneft upon conduct proscribed by a religious faith, or . . .
denies such a beneft because of conduct mandated by reli-
gious belief, thereby putting substantial pressure on an ad-
herent to modify his behavior and to violate his beliefs.”
Id., at 717–718.
The First Amendment protects religious uses and actions
for good reason. What point is it to tell a person that he is
free to be Muslim but he may be subject to discrimination
for doing what his religion commands, attending Friday
prayers, living his daily life in harmony with the teaching of
his faith, and educating his children in its ways? What does
it mean to tell an Orthodox Jew that she may have her reli-
gion but may be targeted for observing her religious calen-
dar? Often, governments lack effective ways to control
what lies in a person's heart or mind. But they can bring
to bear enormous power over what people say and do. The
right to be religious without the right to do religious things
would hardly amount to a right at all.
If the government could intrude so much in matters of
faith, too, winners and losers would soon emerge. Those ap-
athetic about religion or passive in its practice would suffer
little in a world where only inward belief or status is pro-
tected. But what about those with a deep faith that re-
quires them to do things passing legislative majorities might
fnd unseemly or uncouth—like knocking on doors to spread
their beliefs, refusing to build tank turrets during wartime,
or teaching their children at home? “[T]hose who take their

514 ESPINOZA
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Gorsuch, J., concurring
religion seriously, who think that their religion should affect
the
whole of their lives,” and those whose religious beliefs
and practices are least popular, would face the greatest dis-
abilities. Mitchell v. Helms, 530 U. S. 793, 827–828 (2000)
(plurality opinion). A right meant to protect minorities in-
stead could become a cudgel to ensure conformity.
It doesn't take a long or searching look through history or
around the world to see how this can go. In the century
before our Nation's founding, Oliver Cromwell promised to
Catholics in Ireland: “ `As to freedom of conscience, I meddle
with no man's conscience; but if you mean by that, liberty to
celebrate the Mass, I would have you understand that in no
place where the power of the Parliament of England prevails
shall that be permitted.' ” McDaniel, 435 U. S., at 631, n. 2
(opinion of Brennan, J.) (quoting S. Hook, Paradoxes of Free-
dom 23 (1962)); see also 1 T. Carlyle, Oliver Cromwell's Let-
ters and Speeches 395 (1845) (recording Cromwell's October
19, 1649, letter to the Governor of Ross). Even today, in
fefdoms small and large, people of faith are made to choose
between receiving the protection of the State and living lives
true to their religious convictions.
Of course, in public benefts cases like the one before us
the stakes are not so dramatic. Individuals are forced only
to choose between forgoing state aid or pursuing some aspect
of their faith. The government does not put a gun to the
head, only a thumb on the scale. But, as so many of our
cases explain, the Free Exercise Clause doesn't easily toler-
ate either; any discrimination against religious exercise must
meet the demands of strict scrutiny. In this way, the Clause
seeks to ensure that religion remains “a matter of voluntary
choice by individuals and their associations, [where] each sect
. . . `fourish[es] according to the zeal of its adherents and
the appeal of its dogma,' ” infuenced by neither where the
government points its gun nor where it places its thumb.
McDaniel, 435 U. S., at 640 (opinion of Brennan J.) (quoting
Zorach v. Clauson, 343 U. S. 306, 313 (1952)).

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515
Ginsburg, J., dissenting
Montana's Supreme Court disregarded these foundational
pr
inciples. Effectively, the court told the state legislature
and parents of Montana like Ms. Espinoza: You can have
school choice, but if anyone dares to choose to send a child to
an accredited religious school, the program will be shuttered.
That condition on a public beneft discriminates against the
free exercise of religion. Calling it discrimination on the
basis of religious status or religious activity makes no differ-
ence: It is unconstitutional all the same.
Justice Ginsburg, with whom Justice Kagan joins,
dissenting.
The Montana Legislature enacted a scholarship program
to fund tuition for students attending private secondary
schools. See Mont. Code Ann. § 15–30–3111 (2019). In the
decision below, the Montana Supreme Court struck down
that program in its entirety. The program, the state court
ruled, conficted with the State Constitution's no-aid provi-
sion, which forbids government appropriations to religious
schools. Mont. Const., Art. X, § 6(1). Parents who sought
to use the program's scholarships to fund their children's reli-
gious education challenged the state court's ruling. They
argue in this Court that the Montana court's application of
the no-aid provision violated the Free Exercise Clause of the
Federal Constitution. Importantly, the parents, petitioners
here, disclaim any challenge to the no-aid provision on its
face. They instead argue—and this Court's majority ac-
cepts—that the provision is unconstitutional as applied be-
cause the First Amendment prohibits discrimination in
tuition-beneft programs based on a school's religious status.
Because the state court's decision does not so discriminate,
I would reject petitioners' free exercise claim.
The First Amendment prohibits the government from
“mak[ing a] law . . . prohibiting the free exercise” of religion.
U. S. Const., Amdt. 1. This Court's decisions have recog-
nized that a burden on religious exercise may occur both

516 ESPINOZA
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Ginsburg, J., dissenting
when a State proscribes religiously motivated activity and
when
a law pressures an adherent to abandon her religious
faith or practice. Sherbert v. Verner, 374 U. S. 398, 406
(1963); Hobbie v. Unemployment Appeals Comm'n of Fla.,
480 U. S. 136, 140–141 (1987). The Free Exercise Clause
thus protects against “indirect coercion or penalties on the
free exercise of religion.” Lyng v. Northwest Indian Ceme-
tery Protective Assn., 485 U. S. 439, 450 (1988). Invoking
that principle in Trinity Lutheran Church of Columbia, Inc.
v. Comer, 582 U. S. 449 (2017), the Court observed that dis-
qualifying an entity from a public beneft “solely because of
[the entity's] religious character” can impose “a penalty on
the free exercise of religion.” Id., at 462. The Court then
concluded that a Missouri law making churches ineligible for
a government playground-refurbishing grant impermissibly
burdened the church's religious exercise by “put[ting it] to
the choice between being a church and receiving a govern-
ment beneft.” Id., at 465.
Petitioners argue that the Montana Supreme Court's deci-
sion fails when measured against Trinity Lutheran. I do
not see how. Past decisions in this area have entailed dif-
ferential treatment occasioning a burden on a plaintiff 's reli-
gious exercise. Lyng, 485 U. S., at 450–451; Trinity Lu-
theran, 582 U. S., at 463. This case is missing that essential
component. Recall that the Montana court remedied the
state constitutional violation by striking the scholarship pro-
gram in its entirety. Under that decree, secular and sectar-
ian schools alike are ineligible for benefts, so the decision
cannot be said to entail differential treatment based on peti-
tioners' religion. Put somewhat differently, petitioners
argue that the Free Exercise Clause requires a State to treat
institutions and people neutrally when doling out a benefit—
and neutrally is how Montana treats them in the wake of the
state court's decision.
Accordingly, the Montana Supreme Court's decision does
not place a burden on petitioners' religious exercise. Peti-

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517
Ginsburg, J., dissenting
tioners may still send their children to a religious school.
And
the Montana Supreme Court's decision does not pres-
sure them to do otherwise. Unlike the law in Trinity Lu-
theran, the decision below puts petitioners to no “choice”:
Neither giving up their faith, nor declining to send their chil-
dren to sectarian schools, would affect their entitlement to
scholarship funding. 582 U. S., at 462. There simply are no
scholarship funds to be had.
True, petitioners expected to be eligible for scholarships
under the legislature's program, and to use those scholar-
ships at a religious school. And true, the Montana court's
decision disappointed those expectations along with those of
parents who send their children to secular private schools.
But, as Justice Sotomayor observes, see post, at 540 (dis-
senting opinion), this Court has consistently refused to treat
neutral government action as unconstitutional solely because
it fails to beneft religious exercise. See Sherbert, 374 U. S.,
at 412 (Douglas, J., concurring) (“[T]he Free Exercise Clause
is written in terms of what the government cannot do to the
individual, not in terms of what the individual can exact from
the government.”).
These considerations should be fatal to petitioners' free
exercise claim, yet the Court does not confront them. In-
stead, the Court decides a question that, in my view, this
case does not present: “[W]hether excluding religious schools
and affected families from [the scholarship] program was con-
sistent with the Federal Constitution.” Ante, at 474 (major-
ity opinion). The Court goes on to hold that the Montana
Supreme Court's application of the no-aid provision violates
the Free Exercise Clause because it “ `condition[s] the avail-
ability of benefts upon a recipient's willingness to surrender
[its] religiously impelled status.' ” Ante, at 478 (quoting
Trinity Lutheran, 582 U. S., at 461–462; some alterations
omitted). As I see it, the decision below—which maintained
neutra lity between sectar ian and nonsectar ian pr ivate
schools—did no such thing.

518 ESPINOZA
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Ginsburg, J., dissenting
Finding the “beginning ” of the Montana Supreme Court's
decisi
on erroneous, this Court regards the state court's ulti-
mate judgment as irrelevant. Ante, at 487–489. In the
Court's recounting, the Montana court frst held that reli-
gious schools must be excluded from the scholarship pro-
gram—necessar ily deter mining that the Free Exercise
Clause permitted that result—and only subsequently struck
the entire program as a way of carrying out its holding. See
ante, at 487–488 (“When the [Montana Supreme] Court was
called upon to apply a state law no-aid provision to exclude
religious schools from the program, it was obligated by the
Federal Constitution to reject the invitation.”). But the ini-
tial step described by this Court is imaginary. The Montana
court determined that the scholarship program violated the
no-aid provision because it resulted in aid to religious
schools. Declining to rewrite the statute to exclude those
schools, the state court struck the program in full. 393
Mont. 446, 463–468, 435 P. 3d 603, 612–614 (2018). In doing
so, the court never made religious schools ineligible for an
otherwise available beneft, and it never decided that the
Free Exercise Clause would allow that outcome.
1
Thus, contrary to this Court's assertion, see ante, at 488,
the no-aid provision did not require the Montana Supreme
Court to “exclude” religious schools from the scholarship
program. The provision mandated only that the state treas-
ury not be used to fund religious schooling. As this case
demonstrates, that mandate does not necessarily require dif-
ferential treatment. The no-aid provision can be imple-
1
In its opinion, Montana's highest court stated without explanation that
this case is not one in which application of the no-aid provision violates
the Free Exercise Clause. 393 Mont., at 468, 435 P. 3d, at 614. When
the court made that statement, it had already invalidated the entire schol-
arship program. Ibid. Accordingly, the court's statement cannot be un-
derstood to have approved of excluding religious schools from an other-
wise available scholarship. Instead, the statement is most fairly read to
convey that the Free Exercise Clause allows a State to decline to fund
any private schools, an outcome that avoids state aid to religious schools.

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519
Ginsburg, J., dissenting
mented in two ways. A State may distinguish within a ben-
eft
program between secular and sectarian schools, or it may
decline to fund all private schools. The Court agrees that
the First Amendment permits the latter course. See ante,
at 487. Because that is the path the Montana Supreme
Court took in this case, there was no reason for this Court
to address the alternative.
By urging that it is impossible to apply the no-aid provi-
sion in harmony with the Free Exercise Clause, the Court
seems to treat the no-aid provision itself as unconstitutional.
See ante, at 487–488. Petitioners, however, disavowed a fa-
cial First Amendment challenge, and the state courts were
never asked to address the constitutionality of the no-aid
provision divorced from its application to a specifc govern-
ment beneft. See, e. g., Reply Brief 8, 20, 21–22. This
Court therefore had no call to reach that issue. See Adams
v. Robertson, 520 U. S. 83, 90 (1997) (per curiam) (“ `[I]t
would be unseemly in our dual system of government' to
disturb the fnality of state judgments on a federal ground
that the state court did not have occasion to consider.” (quot-
ing Webb v. Webb, 451 U. S. 493, 500 (1981))). The only ques-
tion properly raised is whether application of the no-aid pro-
vision to bar all state-sponsored private-school funding
violates the Free Exercise Clause. For the reasons stated,
supra, at 516–517, it does not.
Nearing the end of its opinion, the Court writes: “A State
need not subsidize private education. But once a State de-
cides to do so, it cannot disqualify some private schools solely
because they are religious.” Ante, at 487. Because Mon-
tana's Supreme Court did not make such a decision—its judg-
ment put all private-school parents in the same boat—this
Court had no occasion to address the matter.
2
On that sole
2
The Montana Supreme Court's decision leaves parents where they
would be had the State never enacted a scholarship program. In that
event, no one would argue that Montana was obliged to provide such
a program solely for parents who send their ch i ldren to relig i ous

520 ESPINOZA
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Breyer, J., dissenting
ground, and reaching no other issue, I dissent from the
Cour
t's judgment.
Justice Breyer, with whom Justice Kagan joins as to
Part I, dissenting.
The First Amendment's Free Exercise Clause guarantees
the right to practice one's religion. At the same time, its
Establishment Clause forbids government support for reli-
gion. Taken together, the Religion Clauses have helped our
Nation avoid religiously based discord while securing liberty
for those of all faiths.
This Court has long recognized that an overly rigid appli-
cation of the Clauses could bring their mandates into confict
and defeat their basic purpose. See, e. g., Walz v. Tax
Comm'n of City of New York, 397 U. S. 664, 668–669 (1970).
And this potential confict is nowhere more apparent than in
cases involving state aid that serves religious purposes or
institutions. In such cases, the Court has said, there must
be constitutional room, or “ `play in the joints,' ” between
“what the Establishment Clause permits and the Free Exer-
cise Clause compels.” Trinity Lutheran Church of Colum-
bia, Inc. v. Comer, 582 U. S. 449, 458 (2017) (quoting Locke
v. Davey, 540 U. S. 712, 718 (2004)). Whether a particular
state program falls within that space depends upon the na-
ture of the aid at issue, considered in light of the Clauses'
objectives.
The majority barely acknowledges the play-in-the-joints
doctrine here. It holds that the Free Exercise Clause for-
bids a State to draw any distinction between secular and
religious uses of government aid to private schools that is
not required by the Establishment Clause. The majority's
approach and its conclusion in this case, I fear, risk the kind
of entanglement and confict that the Religion Clauses are
intended to prevent. I consequently dissent.
schools. But cf. ante, at 508 (Alito, J., concurring) (inapt reference to
Anatole France's remark).

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521
Breyer, J., dissenting
I
In
2015, Montana's Legislature enacted a statute giving a
$150 tax credit to any person who contributes at least that
amount to an organization that provides scholarships for stu-
dents who attend nonpublic schools. See Mont. Code Ann.
§ 15–30–3111 (2019). The overwhelming majority of these
schools are religious. (In 2018, 94% of the scholarships
awarded helped to pay religious-school tuition. 393 Mont.
446, 466, 478–479, and n. 6, 435 P. 3d 603, 613, 621, and n. 6;
App to Pet. for Cert. 123, 125.) The Montana Supreme
Court held that this program violated a state constitutional
provision that forbids the legislature to make “any direct or
indirect appropriation or payment” for “any sectarian pur-
pose or to aid any church, school, academy . . . controlled in
whole or in part by any church, sect, or denomination.”
Mont. Const., Art. X, § 6.
Petitioners are the parents of students who attend one of
Montana's Christian private schools. They believe that the
tenets of their faith require them to send their children to a
religious school. And they claim that, by preventing them
from using state-supported scholarships at those schools, the
Montana Supreme Court's interpretation of Montana's Con-
stitution violates their First Amendment right to free exer-
cise. I shall assume, for purposes of this opinion, that peti-
tioners' free exercise claim survived the Montana Supreme
Court's wholesale invalidation of the tax credit program.
Cf. ante, at 516 (Ginsburg, J., dissenting); post, at 539–540
(Sotomayor, J., dissenting).
A
We all recognize that the First Amendment prohibits dis-
crimination against religion. At the same time, our history
and federal constitutional precedent refect a deep concern
that state funding for religious teaching, by stirring fears of
preference or in other ways, might fuel religious discord and
division and thereby threaten religious freedom itself. See,

522 ESPINOZA
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Breyer, J., dissenting
e. g., Committee for Public Ed. & Religious Liberty v. Ny-
qu
ist, 413 U. S. 756, 794–796 (1973). The Court has conse-
quently made it clear that the Constitution commits the gov-
ernment to a “position of neutrality” in respect to religion.
School Dist. of Abington Township v. Schempp, 374 U. S.
203, 226 (1963).
The inherent tension between the Establishment and Free
Exercise Clauses means, however, that the “course of consti-
tutional neutrality in this area cannot be an absolutely
straight line.” Walz, 397 U. S., at 669. Indeed, “rigidity
could well defeat the basic purpose of these provisions, which
is to insure that no religion be sponsored or favored, none
commanded, and none inhibited.” Ibid.
That, in signifcant part, is why the Court has held that
“there is room for play in the joints” between the Clauses'
express prohibitions that is “productive of a benevolent neu-
trality,” allowing “religious exercise to exist without spon-
sorship and without interference.” Ibid. It has held that
there “are some state actions permitted by the Establish-
ment Clause but not required by the Free Exercise Clause.”
Locke, 540 U. S., at 719; see Cutter v. Wilkinson, 544 U. S.
709, 719 (2005). And that “play in the joints” should, in my
view, play a determinative role here.
It may be that, under our precedents, the Establishment
Clause does not forbid Montana to subsidize the education of
petitioners' children. But the question here is whether the
Free Exercise Clause requires it to do so. The majority be-
lieves that the answer to that question is “yes.” It writes
that “once a State decides” to support nonpublic education,
“it cannot disqualify some private schools solely because
they are religious.” Ante, at 487. I shall explain why I
disagree.
B
As the majority acknowledges, two cases are particularly
relevant: Trinity Lutheran Church of Columbia, Inc. v.
Comer, 582 U. S. 449, and Locke v. Davey, 540 U. S. 712. In

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523
Breyer, J., dissenting
Trinity Lutheran, we considered whether Missouri could ex-
clude
a church-owned preschool from applying for a grant to
renovate its playground. The Court assumed that the Es-
tablishment Clause permitted the State to make grants of
this kind to church-affliated schools. See 582 U. S., at 458.
But, the Court added, this did not “answer the question”
because there is “ `play in the joints' between what the Es-
tablishment Clause permits and the Free Exercise Clause
compels.” Ibid. The Court therefore went on to consider
the burdens that Missouri's law imposed upon the church's
right to free exercise.
By excluding schools with ties to churches, the Court
wrote, the State's law put the church “to a choice: It may
participate in an otherwise available beneft program or re-
main a religious institution.” Id., at 462. That kind of “ `in-
direct coercion,' ” the Court explained, “imposes a penalty on
the free exercise of religion that triggers the most exacting
scrutiny.” Id., at 462, 463. Finding that a State's “policy
preference for skating as far as possible from religious estab-
lishment concerns” could not satisfy that standard, the Court
held that the Free Exercise Clause required Missouri to in-
clude church-affliated schools as candidates for playground
renovation grants. Id., at 466.
We confronted a different kind of aid program, and came
to a different conclusion, in Locke. There, we reviewed a
Washington law that offered taxpayer-funded scholarships to
college students on the express condition that they not pur-
sue degrees that were “ `devotional in nature or designed to
induce religious belief.' ” 540 U. S., at 716; see id., at 719,
n. 2 (quoting Wash. Const., Art. II, § 11). Again, the Court
assumed that the Establishment Clause permitted the State
to support students seeking such degrees. 540 U. S., at 719.
But the Court concluded that the Free Exercise Clause did
not require it to do so.
The Court observed that the State's decision not to fund
devotional degrees did not penalize religious exercise or re-

524 ESPINOZA
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Breyer, J., dissenting
quire anyone to choose between their faith and a “govern-
ment
beneft.” Id., at 721. Rather, the State had “merely
chosen not to fund a distinct category of instruction” that
was “essentially religious.” Ibid. Although Washington's
Constitution drew “a more stringent line than that drawn by
the United States Constitution,” the Court found that the
State's position was consistent with the widely shared view,
dating to the founding of the Republic, that taxpayer-
supported religious indoctrination poses a threat to individ-
ual liberty. Id., at 722. Given this “historic and substantial
state interest,” the Court concluded, it would be inappropri-
ate to subject Washington's law to a “presumption of uncon-
stitutionality.” Id., at 725. And, without such a presump-
ti on, the clai m that the exclusi on of devoti ona l studies
violated the Free Exercise Clause “must fail,” for “[i]f any
room exists between the two Religion Clauses, it must be
here.” Ibid.; see id., at 720, n. 3.
C
The majority fnds that the school-playground case, Trin-
ity Lutheran, and not the religious-studies case, Locke, con-
trols here. I disagree. In my view, the program at issue
here is strikingly similar to the program we upheld in Locke
and importantly different from the program we found uncon-
stitutional in Trinity Lutheran. Like the State of Washing-
ton in Locke, Montana has chosen not to fund (at a distance)
“an essentially religious endeavor”—an education designed
to “ `induce religious faith.' ” Locke, 540 U. S., at 716, 721.
That kind of program simply cannot be likened to Missouri's
decision to exclude a church school from applying for a grant
to resurface its playground.
The Court in Locke recognized that the study of devotional
theology can be “akin to a religious calling as well as an
academic pursuit. ” Id., at 721. Indeed, “ the shaping,
through primary education, of the next generation's minds
and spirits” may be as critical as training for the ministry,

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525
Breyer, J., dissenting
which itself, after all, is but one of the activities necessary
to
help ensure a religion's survival. Zelman v. Simmons-
Harris, 536 U. S. 639, 725 (2002) (Breyer, J., dissenting).
That is why many faith leaders emphasize the central role of
schools in their religious missions. See, e. g., Southern
Baptist Convention, Resolution on the Importance of Christ-
Centered Education (2014) (underscoring the power of Chris-
tian schools to “win students to salvation through evange-
lism, make disciples, and foster spiritual development”); The
Holy See, John Paul II, Catechesi Tradendae ¶69 (Oct. 16,
1979) (explaining that “the underlying reason for” the Catho-
lic school “is precisely the quality of the religious instruction
integrated into the education of the pupils”). It is why at
least some teachers at religious schools see their work as
a form of ministry. See, e. g., Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC, 565 U. S. 171, 192
(2012). And petitioners have testifed that it is a “major rea-
son” why they chose religious schools for their children.
App. to Pet. for Cert. 152 (the school teaches “the same
Christian values that I teach at home”).
Nothing in the Constitution discourages this type of in-
struction. To the contrary, the Free Exercise Clause draws
upon a history that places great value upon the freedom of
parents to teach their children the tenets of their faith. Cf.
Wisconsin v. Yoder, 406 U. S. 205, 213–214 (1972). The lead-
ing fgures of America's Enlightenment followed in the foot-
steps of those who, after the English civil wars, came to be-
lieve “with a passionate conviction that they were entitled
to worship God in their own way and to teach their children
and to form their characters in the way that seemed to them
calculated to impress the stamp of the God-fearing man.”
C. Radcliffe, The Law & Its Compass 71 (1960). But the
bitter lesson of religious confict also inspired the Establish-
ment Clause and the state-law bans on compelled support
the Court cited in Locke. Cf., e. g., J. Madison, Memorial and
Remonstrance Against Religious Assessments, reprinted in

526 ESPINOZA
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Breyer, J., dissenting
Everson v. Board of Ed. of Ewing, 330 U. S. 1, 69 (1947)
(
appendix to dissent of Rutledge, J.) (recalling the “[t]orrents
of blood” shed in efforts to establish state religion).
What, then, is the difference between Locke and the pres-
ent case? And what is it that leads the majority to conclude
that funding the study of religion is more like paying to fx
up a playground (Trinity Lutheran) than paying for a degree
in theology (Locke)? The majority's principal argument ap-
pears to be that, as in Trinity Lutheran, Montana has ex-
cluded religious schools from its program “solely because of
the religious character of the schools.” Ante, at 476. The
majority seeks to contrast this status-based discrimination
with the program at issue in Locke, which it says denied
scholarships to divinity students based on the religious use
to which they put the funds—i. e., training for the ministry,
as opposed to secular professions. See ante, at 478 (citing
Trinity Lutheran, 582 U. S., at 461–462).
It is true that Montana's no-aid provision broadly bars
state aid to schools based on their religious affliation. But
this case does not involve a claim of status-based discrimina-
tion. The schools do not apply or compete for scholarships,
they are not parties to this litigation, and no one here pur-
ports to represent their interests. We are instead faced
with a suit by parents who assert that their free exercise
rights are violated by the application of the no-aid provision
to prevent them from using taxpayer-supported scholarships
to attend the schools of their choosing. In other words, the
problem, as in Locke, is what petitioners “ `propos[e] to do—
use the funds to' ” obtain a religious education. Ante, at 479
(quoting Trinity Lutheran, 582 U. S., at 464).
Even if the schools' status were relevant, I do not see what
bearing the majority's distinction could have here. There is
no dispute that religious schools seek generally to inspire
religious faith and values in their students. How else could
petitioners claim that barring them from using state aid
to attend these schools violates their free exercise rights?

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527
Breyer, J., dissenting
Thus, the question in this case—unlike in Trinity Lu-
th
eran—boils down to what the schools would do with state
support. And the upshot is that here, as in Locke, we con-
front a State's decision not to fund the inculcation of reli-
gious truths.
The majority next contends that there is no “ `historic and
substantial' tradition against aiding ” religious schools “com-
parable to the tradition against state-supported clergy in-
voked by Locke.” Ante, at 483. But the majority ignores
the reasons for the founding era bans that we relied upon
in Locke.
“Perhaps the most famous example,” Locke, 540 U. S., at
722, n. 6, is the 1786 defeat of a Virginia bill (often called the
Assessment Bill) that would have levied a tax in support
of “learned teachers” of “the Christian Religion.” A Bill
Establishing a Provision for Teachers of the Christian Reli-
gion, reprinted in Everson, 330 U. S., at 72 (supplemental
appendix to dissent of Rutledge, J.). In his Memorial and
Remonstrance against that proposal, James Madison argued
that compelling state sponsorship of religion in this way was
“a signal of persecution” that “degrades from the equal rank
of Citizens all those whose opinions in Religion do not bend
to those of the Legislative authority.” Id., at 68–69. Even
among those who might beneft from such a tax, Madison
warned, the bill threatened to “destroy that moderation and
harmony which the forbearance of our laws to intermeddle
with Religion, has produced amongst its several sects.” Id.,
at 69.
The opposition galvanized by Madison's Remonstrance not
only scuttled the Assessment Bill; it spurred Virginia's As-
sembly to enact a very different law, the Bill for Religious
Liberty drafted by Thomas Jefferson. See Brant, Madison:
On the Separation of Church and State, 8 Wm. & Mary Q. 3,
11 (1951); Drakeman, Religion and the Republic: James Mad-
ison and the First Amendment, 25 J. Church & St. 427, 436
(1983); Everson, 330 U. S., at 12.

528 ESPINOZA
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Breyer, J., dissenting
Like the Remonstrance, Jefferson's bill emphasized the
r
isk to religious liberty that state-supported religious indoc-
trination threatened. “[T]o compel a man to furnish contri-
butions of money for the propagation of opinions which he
disbelieves,” the preamble declared, “is sinful and tyranni-
cal.” A Bill for Establishing Religious Freedom (1779), in
2 The Papers of Thomas Jefferson 545 (J. Boyd ed. 1950).
The statute accordingly provided “that no man shall be com-
pelled to frequent or support any religious worship, place,
or ministry whatsoever.” Id., at 546. Similar proscriptions
were included in the early constitutions of many States.
See Locke, 540 U. S., at 723 (collecting examples).
I see no meaningful difference between the concerns that
Madison and Jefferson raised and the concerns inevitably
raised by taxpayer support for scholarships to religious
schools. In both instances state funds are sought for those
who would “instruc[t] such citizens, as from their circum-
stances and want of education, cannot otherwise attain such
knowledge” in the tenets of religious faith. A Bill Estab-
lishing a Provision for Teachers of the Christian Religion,
reprinted in Everson, 330 U. S., at 72. In both cases, that
would compel taxpayers to support “the propagation of opin-
ions” on matters of religion with which they may disagree,
by teachers whom they have not chosen. A Bill for Estab-
lishing Religious Freedom, supra, at 545. And, in both
cases, the allocation of state aid to such purposes threatens
to “destroy that moderation and harmony which the forbear-
ance of our laws to intermeddle with Religion, has produced
amongst its several sects.” Memorial and Remonstrance,
reprinted in Everson, 330 U. S., at 69.
The majority argues that at least some early American
governments saw no contradiction between bans on com-
pelled support for clergy and taxpayer support for religious
schools or universities. See ante, at 481, n. 3. That some
States appear not to have read their prohibitions on com-
pelled support to bar this kind of sponsorship, however, does

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529
Breyer, J., dissenting
not require us to blind ourselves to the obvious contradiction
between
the reasons for prohibiting compelled support and
the effect of taxpayer funding for religious education. Mad-
ison and Jefferson saw it clearly. They opposed including
theological professorships in their plans for the public Uni-
versity of Virginia and the Commonwealth hesitated even to
grant charters to religiously affliated schools. See Buckley,
After Disestablishment: Thomas Jefferson's Wall of Separa-
tion in Antebellum Virginia, 61 J. So. Hist. 445, 453 (1995);
Brant, supra, at 19–20.
As for the majority's examples, it suffces to say that the
record is not so simple. In Georgia, the Governor advocated
for school funding legislation in terms that mirrored the lan-
guage of Virginia's Assessment Bill. See R. Gabel, Public
Funds for Church and Private Schools 241–242 (1937). And
the general levies the majority cites from Pennsylvania and
New Jersey were not adopted until after the founding. See
id., at 215–216; see C. Kaestle, Pillars of the Republic: Com-
mon Schools and American Society, 1780–1860, pp. 166–167
(1983).
That is not to deny that the history of state support for
denominational schools is “ `complex.' ” Ante, at 483. But
founding era attitudes toward compelled support of clergy
were no less complex. Many prominent members of the
founding generation, including George Washington, Patrick
Henry, and John Marshall, supported Virginia's Assessment
Bill. See Dreisbach, George Mason's Pursuit of Religious
Liberty in Revolutionary Virginia, 108 Va. Mag. Hist. & Bi-
ography 5, 31 (2000). Some who supported this kind of gov-
ernment aid thought it posed no threat to freedom of con-
science; others denied that provisions for aid to religion
amounted to an “establishment” at all. See id., at 34–35;
D. Drakeman, Church, State, and Original Intent 224–225
(2010). Indeed, at least one historian has persuasively ar-
gued that it is next to impossible to attribute to the Founders
any uniform understanding as to what constitutes, in the

530 ESPINOZA
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Breyer, J., dissenting
Constitution's phrase, “an establishment of religion.” Id., at
216
–229, 260–262.
This diversity of opinion made no difference in Locke and
it makes no difference here. For our purposes it is enough
to say that, among those who gave shape to the young Re-
public were people, including Madison and Jefferson, who
perceived a grave threat to individual liberty and communal
harmony in tax support for the teaching of religious truths.
These “historic and substantial” concerns have consistently
guided the Court's application of the Religion Clauses since.
Locke, 540 U. S., at 725; see, e. g., Nyquist, 413 U. S., at 794–
798; Walz, 397 U. S., at 695 (Harlan, J., concurring); Schempp,
374 U. S., at 307 (Goldberg, J., joined by Harlan, J., concur-
ring). The Court's special attention to these views should
come as no surprise, for the risks the Founders saw have
only become more apparent over time. In the years since
the Civil War, the number of religions practiced in our coun-
try has grown to scores. And that has made it more diffcult
to avoid suspicions of favoritism—or worse—when govern-
ment becomes entangled with religion.
Nor can I see how it could make a difference that the Es-
tablishment Clause might permit the State to subsidize reli-
gious education through a program like Montana's. The tax
beneft here inures to donors, who choose to support a partic-
ular scholarship organization. That organization, in turn,
awards scholarships to students for the qualifying school of
their choice. The majority points to cases in which we have
upheld programs where, as here, state funds make their way
to religious schools by means of private choices. Ante, at
474 (citing Zelman, 536 U. S., at 649–653). As the Court
acknowledged in Trinity Lutheran, however, that does not
answer the question whether providing such aid is required.
582 U. S., at 458.
Neither does it address related concerns that I have pre-
viously described. Private choice cannot help the taxpayer
who does not want to fnance the propagation of religious

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531
Breyer, J., dissenting
beliefs, whether his own or someone else's. It will not help
rel
igious minorities too few in number to support a school
that teaches their beliefs. And it will not satisfy those
whose religious beliefs preclude them from participating in
a government-sponsored program. Some or many of the
persons who ft these descriptions may well feel ignored—or
worse—when public funds are channeled to religious schools.
See Zelman, 536 U. S., at 728 (Breyer, J., dissenting).
These feelings may, in turn, sow religiously inspired political
confict and division—a risk that is considerably greater
where States are required to include religious schools in pro-
grams like the one before us here. And it is greater still
where, as here, those programs beneft only a handful of a
State's many religious denominations. See ibid.; Big Sky
Scholarships, Schools (2019), www.bigskyscholarships.org/
schools.
Indeed, the records of Montana's constitutional convention
show that these concerns were among the reasons that a reli-
giously diverse group of delegates, including faith leaders of
different denominations, supported the no-aid provision.
See Brief for Respondents 18–23; Brief for Montana Consti-
tutional Convention Delegates as Amici Curiae 19–21, 22,
24–25 (noting support for the provision from a Congregation-
alist minister, the Roman Catholic priest responsible for
Catholic schools in the Diocese of Great Falls, a Methodist
pastor, a Presbyterian minister, and the Montana Catholic
Conference, among others).
In an effort to downplay this risk and further distinguish
this case from Locke, the majority contends that “Montana's
Constitution does not zero in on any particular `essentially
religious' course of instruction.” Ante, at 480 (quoting Locke,
540 U. S., at 721). But this is not a facial challenge to the no-
aid provision. See Reply Brief 8. As applied, the provision
affects only a scholarship program that, in effect, uses tax-
payer funds to help pay for student tuition at religious
schools. We have long recognized that unrestricted cash

532 ESPINOZA
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Breyer, J., dissenting
payments of this kind raise special establishment concerns.
Cf
. Mitchell v. Helms, 530 U. S. 793, 818–819 (2000) (plurality
opinion); see id., at 848–849 (O'Connor, J., concurring in judg-
ment). And for good reason: The subsidy petitioners de-
mand would go to pay for, among other things, the salaries
of teachers and administrators who have been found in at
least some instances to so “personify [the] beliefs” of the
churches that employ them that they are quite literally
“ministers” within the meaning of the First Amendment.
Hosanna-Tabor, 565 U. S., at 188.
If, for 250 years, we have drawn a line at forcing taxpayers
to pay the salaries of those who teach their faith from the
pulpit, I do not see how we can today require Montana to
adopt a different view respecting those who teach it in the
classroom.
II
In reaching its conclusion that the Free Exercise Clause
requires Montana to allow petitioners to use taxpayer-
supported scholarships to pay for their children's religious
education, the majority makes several doctrinal innovations
that, in my view, are misguided and threaten adverse
consequences.
Although the majority refers in passing to the “play in the
joints” between that which the Establishment Clause forbids
and that which the Free Exercise Clause requires, its holding
leaves that doctrine a shadow of its former self. See, e. g.,
Cutter, 544 U. S., at 719; Walz, 397 U. S., at 669. Having
concluded that there is no obstacle to subsidizing a religious
education under our Establishment Clause precedents, the
majority says little more about Montana's antiestablishment
interests or the reasoning that underlies them. It does not
engage with the State's concern that its funds not be used to
support religious teaching. Instead, the Court holds that it
need not consider how Montana's funds would be used be-
cause, in its view, all distinctions on the basis of religion—
whether in respect to playground grants or devotional teach-

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533
Breyer, J., dissenting
ing—are similarly and presumptively unconstitutional. See
an
te, at 476–477.
Setting aside the problems with the majority's character-
ization of this case, supra, at 526, I think the majority is
wrong to replace the fexible, context-specifc approach of our
precedents with a test of “strict” or “rigorous” scrutiny.
And it is wrong to imply that courts should use that same
heightened scrutiny whenever a government beneft is at
issue. See ante, at 476, 478.
Experience has taught us that “we can only dimly perceive
the boundaries of permissible government activity in this
sensitive area of constitutional adjudication. ” Tilton v.
Richardson, 403 U. S. 672, 678 (1971) (plurality opinion); see
also Schempp, 374 U. S., at 306 (opinion of Goldberg, J., joined
by Harlan, J.) (there is “no simple and clear measure which
by precise application can readily and invariably demark the
permissible from the impermissible”); Walz, 397 U. S., at 669
(“[R]igidity could well defeat the basic purpose of these pro-
visions, which is to insure that no religion be sponsored
or favored, none commanded, and none inhibited”). If the
Court has found it possible to walk what we have called the
“ `tight rope' ” between the two Religion Clauses, it is only
by “preserving doctrinal fexibility and recognizing the need
for a sensible and realistic application” of those provisions.
Yoder, 406 U. S., at 221.
The Court proceeded in just this way in Locke. It consid-
ered the same precedents the majority today cites in support
of its presumption of unconstitutionality. But it found that
applying the presumption set forth in those cases to Wash-
ington's decision not to fund devotional degrees would
“extend” them “well beyond not only their facts but their
reasoning.” 540 U. S., at 720. In my view, that analysis ap-
plies equally to this case.
Montana's law does not punish religious exercise. Cf.
Locke, 540 U. S., at 720 (citing Church of Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U. S. 520, 535 (1993)); see ante,

534 ESPINOZA
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Breyer, J., dissenting
at 478. It does not deny anyone, because of their faith, the
r
ight to participate in political affairs of the community. Cf.
Locke, 540 U. S., at 720–721 (citing McDaniel v. Paty, 435
U. S. 618, 626 (1978)); see ante, at 478. And it does not re-
quire students to choose between their religious beliefs and
receiving secular government aid such as unemployment
benefts. Cf. Locke, 540 U. S., at 720 (citing Sherbert v.
Verner, 374 U. S. 398, 403–404 (1963)); see ante, at 478. The
State has simply chosen not to fund programs that, in sig-
nifcant part, typically involve the teaching and practice of
religious devotion. And “a legislature's decision not to sub-
sidize the exercise of a fundamental right does not infringe
the right, and thus is not subject to strict scrutiny.” Regan
v. Taxation With Representation of Wash., 461 U. S. 540, 549
(1983); see also Lyng v. Automobile Workers, 485 U. S. 360,
368 (1988).
I disagree, then, with what I see as the majority's doc-
trinal omission, its misplaced application of a legal presump-
tion, and its suggestion that this presumption is appropriate
in many, if not all, cases involving government benefts. As
I see the matter, our differences run deeper than a simple
disagreement about the application of prior case law.
The Court's reliance in our prior cases on the notion of
“play in the joints,” our hesitation to apply presumptions of
unconstitutionality, and our tendency to confne beneft-
related holdings to the context in which they arose all refect
a recognition that great care is needed if we are to realize
the Religion Clauses' basic purpose “to promote and assure
the fullest scope of religious liberty and religious tolerance
for all and to nurture the conditions which secure the best
hope of attainment of that end.” Schempp, 374 U. S., at 305
(opinion of Goldberg, J., joined by Harlan, J.); see Van Orden
v. Perry, 545 U. S. 677, 698 (2005) (Breyer, J., concurring
in judgment).
For one thing, government benefts come in many shapes
and sizes. The appropriate way to approach a State's beneft-

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535
Breyer, J., dissenting
related decision may well vary depending upon the relation
between
the Religion Clauses and the specifc beneft and
restriction at issue. For another, disagreements that con-
cern religion and its relation to a particular beneft may
prove unusually diffcult to resolve. They may involve small
but important details of a particular beneft program. Does
one detail affect one religion negatively and another posi-
tively? What about a religion that objects to the particular
way in which the government seeks to enforce mandatory
(say, qualifcation-related) provisions of a particular beneft
program? See, e. g., New Life Baptist Church Academy v.
East Longmeadow, 885 F. 2d 940 (CA1 1989) (Breyer, J., for
the court). Or the religious group that for religious reasons
cannot accept government support? See Brief for Respond-
ents 20–21 (noting, inter alia, Seventh-day Adventists' sup-
port for Montana's no-aid provision on this ground). And
what happens when qualifcation requirements mean that
government money fows to one religion rather than an-
other? Courts are ill equipped to deal with such conficts.
Yet, in a Nation with scores of different religions, many such
disagreements are possible. And I have only scratched the
surface.
The majority claims that giving weight to these considera-
tions would be a departure from our precedent and give
courts too much discretion to interpret the Religion Clauses.
See ante, at 483–484. But we have long understood that the
“application” of the First Amendment's mandate of neutral-
ity “requires interpretation of a delicate sort.” Schempp,
374 U. S., at 226. “Each value judgment under the Religion
Clauses,” we have explained, must “turn on whether particu-
lar acts in question are intended to establish or interfere
with religious beliefs and practices or have the effect of
doing so.” Walz, 397 U. S., at 669.
Nor does the majority's approach avoid judicial entangle-
ment in diffcult and sensitive questions. To the contrary,
as I have just explained, it burdens courts with the still more

536 ESPINOZA
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Breyer, J., dissenting
complex task of untangling disputes between religious orga-
ni
zations and state governments, instead of giving deference
to state legislators' choices to avoid such issues altogether.
At the same time, it puts States in a legislative dilemma,
caught between the demands of the Free Exercise and Es-
tablishment Clauses, without “breathing room” to help ame-
liorate the problem.
I agree with the majority that it is preferable in some
areas of the law to develop generally applicable tests. The
problem, as our precedents show, is that the interaction of
the Establishment and Free Exercise Clauses makes it par-
ticularly diffcult to design a test that vindicates the Clauses'
competing interests in all—or even most—cases. That is
why, far from embracing mechanical formulas, our prece-
dents repeatedly and frankly acknowledge the need for pre-
cisely the kind of “ `judgment-by-judgment analysis' ” the
majority rejects. Ante, at 484; see, e. g., Walz, 397 U. S., at
669. “The standards” of our prior decisions, we have said,
“should rather be viewed as guidelines with which to identify
instances in which the objectives of the Religion Clauses
have been impaired.” Tilton, 403 U. S., at 678 (plurality
opinion); accord, Nyquist, 413 U. S., at 773, n. 31.
The Court's occasional efforts to declare rules in spite of
this experience have failed to produce either coherence or
consensus in our First Amendment jurisprudence. See Van
Orden, 545 U. S., at 697 (opinion of Breyer, J.) (listing exam-
ples). The persistence of such disagreements bears out
what I have said—namely, that rigid, bright-line rules like
the one the Court adopts today too often work against the
underlying purposes of the Religion Clauses. And a test
that fails to advance the Clauses' purposes is, in my view, far
worse than no test at all.
Consider some of the practical problems that may arise
from the Court's holding. The States have taken advantage
of the “play in the joints” between the Religion Clauses to
craft programs of public aid to education that address their

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537
Breyer, J., dissenting
local needs. Many provide assistance to families with stu-
dents
in nonpublic schools, ranging from scholarships to tax
credits and deductions that reimburse tuition expenses.
See Dept. of Ed., A. Duncan et al., Education Options in the
States 3–6 (2009). Although most state constitutions today
have no-aid provisions like Montana's, those provisions are
only one part of a broader system of local regulation. See
App. D to Brief for Respondents. Some States have con-
cluded that their no-aid provisions do not bar scholarships to
students at religious schools, while others without such
clauses have nevertheless chosen not to fund religious educa-
tion. See Brief for State of Colorado et al. as Amici Curiae
6–7; Brief for State of Maine as Amicus Curiae 10–15. To-
day's decision upends those arrangements without stopping
to ask whether they might actually further the objectives of
the Religion Clauses in some or even many cases.
And what are the limits of the Court's holding? The ma-
jority asserts that States “need not subsidize private educa-
tion.” Ante, at 487. But it does not explain why that is so.
If making scholarships available to only secular nonpublic
schools exerts “coercive” pressure on parents whose faith im-
pels them to enroll their children in religious schools, then
how is a State's decision to fund only secular public schools
any less coercive? Under the majority's reasoning, the par-
ents in both cases are put to a choice between their beliefs
and a taxpayer-sponsored education.
Accepting the majority's distinction between public and
nonpublic schools does little to address the uncertainty that
its holdi ng i ntroduces. W hat about char ter schools?
States vary widely in how they permit charter schools to
be structured, funded, and controlled. See Mead, Devilish
Details: Exploring Features of Charter School Statutes That
Blur the Public/Private Distinction, 40 Harv. J. Legis. 349,
353–357, 367–368 (2003). How would the majority's rule dis-
tinguish between those States in which support for charter
schools is akin to public school funding and those in which it

538 ESPINOZA
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Sotomayor, J., dissenting
triggers a constitutional obligation to fund private religious
schools?
The majority's rule provides no guidance, even as
it sharply limits the ability of courts and legislatures to bal-
ance the potentially competing interests that underlie the
Free Exercise and Antiestablishment Clauses.
***
It is not easy to discern “the boundaries of the neutral
area between” the two Religion Clauses “within which the
legislature may legitimately act.” Tilton, 403 U. S., at 677
(plurality opinion). And it is more diffcult still in cases,
such as this one, where the Constitution's policy in favor of
free exercise, on one hand, and against state sponsorship, on
the other, are in confict. In such cases, I believe there is
“no test-related substitute for the exercise of legal judg-
ment.” Van Orden, 545 U. S., at 700 (opinion of Breyer, J.).
That judgment “must refect and remain faithful to the un-
derlying purposes of the Clauses, and it must take account
of context and consequences measured in light of those pur-
poses.” Ibid. Here, those purposes, along with the exam-
ples set by our decisions in Locke and Trinity Lutheran,
lead me to believe that Montana's differential treatment of
religious schools is constitutional. “If any room exists be-
tween the two Religion Clauses, it must be here.” Locke,
540 U. S., at 725. For these reasons, I respectfully dissent
from the Court's contrary conclusion.
Justice Sotomayor, dissenting.
The majority holds that a Montana scholarship program
unlawfully discriminated against religious schools by exclud-
ing them from a tax beneft. The threshold problem, how-
ever, is that such tax benefts no longer exist for anyone in
the State. The Montana Supreme Court invalidated the
program on state-law grounds, thereby foreclosing the as-
applied challenge petitioners raise here. Indeed, nothing
required the state court to uphold the program or the state

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Sotomayor, J., dissenting
legislature to maintain it. The Court nevertheless reframes
the
case and appears to ask whether a longstanding Montana
constitutional provision is facially invalid under the Free Ex-
ercise Clause, even though petitioners disavowed bringing
such a claim. But by resolving a constitutional question not
presented, the Court fails to heed Article III principles older
than the Religion Clause it expounds. Coleman v. Thomp-
son, 501 U. S. 722, 730 (1991) (forbidding “resolution of a fed-
eral question” that “cannot affect” a state-court judgment).
Not only is the Court wrong to decide this case at all, it
decides it wrongly. In Trinity Lutheran Church of Colum-
bia, Inc. v. Comer, 582 U. S. 449 (2017), this Court held, “for
the frst time, that the Constitution requires the government
to provide public funds directly to a church.” Id., at 472
(Sotomayor, J., dissenting). Here, the Court invokes that
precedent to require a State to subsidize religious schools if
it enacts an education tax credit. Because this decision fur-
ther “slights both our precedents and our history” and
“weakens this country's longstanding commitment to a sepa-
ration of church and state benefcial to both,” ibid., I respect-
fully dissent.
I
A
The Montana Supreme Court invalidated a state tax-credit
program because it was inconsistent with the Montana Con-
stitution's “no-aid provision,” Art. X, § 6(1), which forbids
government appropriations for sectarian purposes, including
funding religious schools. 393 Mont. 446, 467–468, 435 P. 3d
603, 614 (2018). In so doing, the court expressly declined to
resolve federal constitutional issues. “Having concluded the
Tax Credit Program violates” the no-aid provision, the court
held, “it is not necessary to consider federal precedent inter-
preting the First Amendment's less-restrictive Establish-
ment Clause.” Ibid. So too the court declined to ground
its holding on the Free Exercise Clause. Ibid. The court

540 ESPINOZA
v. MONTANA DEPT. OF REVENUE
Sotomayor, J., dissenting
also remedied the only potential harm of discriminatory
treatment
by striking down the program altogether. After
the state court's decision, neither secular nor sectarian
schools receive the program's tax benefts.
Petitioners' free exercise claim is not cognizable. The
Free Exercise Clause, the Court has said, protects against
“indirect coercion or penalties on the free exercise of reli-
g ion. ” Lyng v. Northwest Indi an Cemetery Pro tecti v e
Assn., 485 U. S. 439, 450 (1988). Accordingly, this Court's
cases have required not only differential treatment, cf. ante,
at 477–478, but also a resulting burden on religious exercise,
Lyng, 485 U. S., at 450–451.
Neither differential treatment nor coercion exists here be-
cause the Montana Supreme Court invalidated the tax-credit
program entirely. 393 Mont., at 467–468, 435 P. 3d, at 614.
Because no secondary school (secular or sectarian) is eligible
for benefts, the state court's ruling neither treats petitioners
differently based on religion nor burdens their religious ex-
ercise. See ante, at 516–520 (Ginsburg, J., dissenting).
Petitioners remain free to send their children to the religious
school of their choosing and to exercise their faith.
To be sure, petitioners may want to apply for scholarships
and would prefer that Montana subsidize their children's
religious education. But this Court had never before held
unconstitutional government action that merely failed to
beneft religious exercise. “The crucial word in the consti-
tutional text is `prohibit': `For the Free Exercise Clause is
written in terms of what the government cannot do to the
individual, not in terms of what the individual can exact from
the government.' ” Lyng, 485 U. S., at 451 (quoting Sherbert
v. Verner, 374 U. S. 398, 412 (1963) (Douglas, J., concurring)).
Put another way, the Constitution does not compel Montana
to create or maintain a tax subsidy.
Notably, petitioners did not allege that the no-aid provi-
sion itself caused their harm or that invalidating the entire
tax-credit scheme would create independent constitutional

Cite
as: 591 U. S. 464 (2020)
541
Sotomayor, J., dissenting
concerns. Even now, petitioners disclaim a facial challenge
to
the no-aid provision. Reply Brief 8, 20–22. Petitioners
thus have no cognizable as-applied claim arising from the
disparate treatment of religion, because there is no longer a
program to which Montana's no-aid provision can apply.
Nor is it enough that petitioners might wish that Mon-
tana's no-aid provision were no longer good law. Petitioners
identify no disparate treatment traceable to the state consti-
tutional provision that they challenge because the tax-credit
program no longer operates. See Simon v. Eastern Ky.
Welfare Rights Organization, 426 U. S. 26, 41–42, 44–46
(1976).
1
Short of ordering Montana to create a religious
subsidy that Montana law does not permit, there is nothing
for this Court to do.
2
1
To revive their as-applied challenge, petitioners rely on Griffn v.
School Bd. of Prince Edward Cty., 377 U. S. 218 (1964), for the proposition
that eliminating a public beneft does not always remedy discrimination.
See Reply Brief 5. But Griffn is inapposite. There, a Virginia county
closed its public schools and so-called “private schools” were set up in their
place to avoid a court desegregation order. See 377 U. S., at 223. These
so-called private schools “were open to whites only and . . . were in fact
run by a practical partnership between State and county, designed to pre-
serve segregated education.” Palmer v. Thompson, 403 U. S. 217, 221–
222 (1971). That is nothing like what the Montana Supreme Court's
remedy achieved here. Nor have petitioners said otherwise; there is no
allegation that Montana confers clandestine tax credits solely to secular
schools.
2
Petitioners here have not asserted a free exercise claim on a theory
that they were victims of religious animus, either. Cf. Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993). Instead, one con-
currence seeks to make the argument for them while attempting to com-
pare the state constitutional provision here with a nonunanimous jury rule
rooted in racial animus. Ante, at 497 (opinion of Alito, J.) (citing the
dissent in Ramos v. Louisiana, 590 U. S. 83 (2020)). But those questions
are not before the Court.
In any case, the concurrence's arguments are as misguided as they are
misplaced. Citing the Court's opinion in Ramos, the concurrence maintains
that a law's “ `uncomfortable past' must still be `[e]xamined.' ” Ante, at
505–506 (opinion of Alito, J.). But as previously explained: “Where a law

542 ESPINOZA
v. MONTANA DEPT. OF REVENUE
Sotomayor, J., dissenting
B
As
another dissenting opinion observes, see ante, at 517
(opinion of Ginsburg, J.), the Court sidesteps these obsta-
cles by asking a question that this case does not raise and
that the Montana Supreme Court did not answer: whether
by excluding “religious schools and affected families from [a
scholarship] program,” Montana's no-aid provision was “con-
sistent with the Federal Constitution,” ante, at 474 (majority
opinion). In so doing, the Court appears to transform peti-
tioners' as-applied challenge into a facial one. Ante, at 477;
see also ante, at 489 (Thomas, J., concurring).
This approach lacks support in our case law. The Court
typically declines to read state-court decisions as impliedly
resolving federal questions, especially ones not raised by the
parties. See, e. g., Adams v. Robertson, 520 U. S. 83, 88–89
(1997) (per curiam). Indeed, to honor principles of comity,
this Court generally dismisses writs of certiorari from a
State's highest court where, as is true here of the Court's
otherwise is untethered to [discriminatory] bias—and perhaps also where
a legislature actually confronts a law's tawdry past in reenacting it—the
new law may well be free of discriminatory taint.” Ramos, 590 U. S., at
115 (Sotomayor, J., concurring in part). That could not “be said of the
laws at issue” in Ramos. Ibid. It can be here. See Part II, in fra.
The concurrence overlooks the starkly different histories of these state
laws. Also missing from the concurrence (and the amicus briefs it re-
peats) is the stubborn fact that the constitutional provision at issue here
was adopted in 1972 at a convention where it was met with overwhelming
support by religious leaders (Catholic and non-Catholic), even those who
examined the history of prior no-aid provisions. See Brief for Respond-
ents 16–27; 6 Montana Constitutional Convention 1971–1972 Proceedings
and Transcript, pp. 2012–2013, 2016–2017 (Mont. Legislature and Legisla-
tive Council); see also ante, at 531 (Breyer, J., dissenting); Brief for Public
Funds Public Schools as Ami cu s Cur i ae 5 –11; Br ief for Mont ana
Constitutional Convention Delegates as Amici Curiae 19–25. These sup-
porters argued that it would be wrong to put taxpayer dollars to religious
purposes and that it would invite unwelcome entanglement between
church and state. See, e. g., U. S. Const., Amdt. 1; Brief for Respon-
dents 20.

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as: 591 U. S. 464 (2020)
543
Sotomayor, J., dissenting
bespoke inquiry, “the sole federal question” the Court seeks
to
decide was not “raised, preserved, or passed upon in the
state courts below.” Cardinale v. Louisiana, 394 U. S. 437,
438 (1969); see also Webb v. Webb, 451 U. S. 493, 499 (1981).
That rule respects not only federalism but also the sepa-
ration of powers. Article III confnes this Court's authority
to adjudicating actual “[c]ases” or “[c]ontroversies.” See
also Allen v. Wright, 468 U. S. 737, 750 (1984) (case-or-
controversy requirement refects “the idea of separation of
powers on which the Federal Government is founded”).
Federal courts thus lack power “to decide questions that can-
not affect the rights of litigants in the case before them”
and may resolve only “real and substantial controvers[ies]
admitting of specifc relief through a decree of a conclusive
character, as distinguished from an opinion advising what
the law would be upon a hypothetical state of facts.” Lewis
v. Continental Bank Corp., 494 U. S. 472, 477 (1990) (alter-
ation in original; internal quotation marks omitted). Conso-
nant with that limitation, the Court has declined to “ ` “for-
mulate a rule of constitutional law broader than is required
by the precise facts to which it is to be applied.” ' ” Wash-
ington State Grange v. Washington State Republican Party,
552 U. S. 442, 450 (2008) (quoting Ashwander v. TVA, 297
U. S. 288, 347 (1936) (Brandeis, J., concurring)). By answer-
ing an apparent hypothetical question, today's Court sub-
verts these longstanding practices.
True, on occasion this Court has resolved federal constitu-
tional questions when it was unclear whether the state-court
judgment rested on an adequate and independent state-law
ground. See, e. g., Michigan v. Long, 463 U. S. 1032, 1043
(1983). But that is not this case. Recall that the Montana
Supreme Court remedied a state constitutional violation by
invalidating a state program on state-law grounds, having
expressly declined to reach any federal issue. See 393
Mont., at 467–468, 435 P. 3d, at 614; see also ante, at 518–519
(Ginsburg, J., dissenting).

544 ESPINOZA
v. MONTANA DEPT. OF REVENUE
Sotomayor, J., dissenting
These principles exist to prevent this Court from issuing
adv
isory opinions, sowing confusion, and muddying the law.
This is case in point. Having held that petitioners may not
be “exclu[ded] from the scholarship program” that no longer
exists, the Court remands to the Montana Supreme Court
for “further proceedings not inconsistent with this opinion.”
Ante, at 489. But it is hard to tell what this Court wishes
the state court to do. There is no program from which peti-
tioners are currently “exclu[ded],” so must the Montana Su-
preme Court order the State to recreate one? Has this
Court just announced its authority to require a state court
to order a state legislature to fund religious exercise, over-
ruling centuries of contrary precedent and historical prac-
tice? See Cutter v. Wilkinson, 544 U. S. 709 (2005); Locke
v. Davey, 540 U. S. 712 (2004); see also Trinity Lutheran, 582
U. S., at 482–489, and nn. 7–11 (Sotomayor, J., dissenting)
(describing States' religious disestablishment movements
near the founding and cataloging state constitutional provi-
sions declining to aid religious ministry). Indeed, it appears
that the Court has declared that once Montana created a tax
subsidy, it forfeited the right to eliminate it if doing so would
harm religion. This is a remarkable result, all the more so
because the Court strains to reach it.
The Court views its decision as “simply restor[ing] the sta-
tus quo established by the Montana Legislature.” Ante
at 488, n. 4. But it overlooks how that status quo allowed
the State Supreme Court to cure any disparate treatment
of religion while still giving effect to a state constitutional
provision ratifed by the citizens of Montana. Today's deci-
sion replaces a remedy chosen by representatives of Montan-
ans and designed to honor the will of the electorate with one
that the Court prefers instead.
In sum, the decision below neither upheld a program that
“disqualif[ies] some private schools solely because they are
religious,” ante, at 487, nor otherwise decided the case on fed-

Cite
as: 591 U. S. 464 (2020)
545
Sotomayor, J., dissenting
eral grounds. The Court's opinion thus turns on a counter-
fac
tual hypothetical it is powerless (and unwise) to decide.
II
Even on its own terms, the Court's answer to its hypothet-
ical question is incorrect. The Court relies principally on
Trinity Lutheran, which found that disqualifying an entity
from a public beneft “solely because of [the entity's] religious
character” could impose “a penalty on the free exercise of
religion.” 582 U. S., at 462. Trinity Lutheran held that in-
eligibility for a government beneft impermissibly burdened
a church's religious exercise by “put[ting it] to the choice
between being a church and receiving a government beneft.”
Id., at 465. Invoking that precedent, the Court concludes
that Montana must subsidize religious education if it also
subsidizes nonreligious education.
3
The Court's analysis of Montana's defunct tax program re-
prises the error in Trinity Lutheran. Contra the Court's
current approach, our free exercise precedents had long
granted the government “some room to recognize the unique
status of religious entities and to single them out on that
basis for exclusion from otherwise generally applicable
laws.” Id., at 479 (Sotomayor, J., dissenting).
Until Trinity Lutheran, the right to exercise one's religion
did not include a right to have the State pay for that reli-
gious practice. See School Dist. of Abington Township v.
Schempp, 374 U. S. 203, 226 (1963). That is because a con-
trary rule risks reading the Establishment Clause out of
the Constitution. Although the Establishment Clause “per-
mit[s] some government funding of secular functions per-
3
Petitioners' as-applied challenge fails under Trinity Lutheran for the
reasons stated above: The Montana Supreme Court's remedy does not put
petitioners to any “choice” at all. Rather, petitioners are free to send
their children to any secondary school they wish while practicing their
religious beliefs, and no one receives a tax credit for their school choice.

546 ESPINOZA
v. MONTANA DEPT. OF REVENUE
Sotomayor, J., dissenting
formed by sectarian organizations,” the Court's decisions
“prov
ide[d] no precedent for the use of public funds to fnance
religious activities.” Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U. S. 819, 847 (1995) (O'Connor, J., concur-
ring). After all, the government must avoid “an unlawful
fostering of religion.” Cutter, 544 U. S., at 714 (internal
quotation marks omitted). Thus, to determine the constitu-
tionality of government action that draws lines based on reli-
gion, our precedents “carefully considered whether the inter-
ests embodied in the Religion Clauses justify that line.”
Trinity Lutheran, 582 U. S., at 478 (Sotomayor, J., dissent-
ing). The relevant question had always been not whether a
State singles out religious entities but why it did so.
Here, a State may refuse to extend certain aid programs
to religious entities when doing so avoids “historic and sub-
stantial” antiestablishment concerns. Locke, 540 U. S., at
725. Properly understood, this case is no different from
Locke because petitioners seek to procure what the plaintiffs
in Locke could not: taxpayer funds to support religious
schooling.
4
Indeed, one of the concurrences lauds petition-
ers' spiritual pursuit, acknowledging that they seek state
funds for manifestly religious purposes like “teach[ing] reli-
gion” so that petitioners may “outwardly and publicly” live
out their religious tenets. Ante, at 510 (opinion of Gor-
such, J.). But those deeply religious goals confrm why Mon-
tana may properly decline to subsidize religious education.
Involvement in such spiritual matters implicates both the
Establishment Clause, see Cutter, 544 U. S., at 714, and the
free exercise rights of taxpayers, “denying them the chance
4
Locke confrms that a facial challenge to no-aid provisions must fail.
But cf. ante, at 479–480 (majority opinion). In Locke, this Court upheld
the application of a materially similar no-aid provision in Washington
State, concluding that the Free Exercise Clause permitted Washington to
forbid state-scholarship funds for students pursuing devotional theology
degrees. 540 U. S., at 721.

Cite
as: 591 U. S. 464 (2020)
547
Sotomayor, J., dissenting
to decide for themselves whether and how to fund religion,”
Tr
inity Lutheran, 582 U. S., at 487 (Sotomayor, J., dissent-
ing). Previously, this Court recognized that a “prophylactic
rule against the use of public funds” for “religious activities”
appropriately balanced the Religion Clauses' differing but
equally weighty interests. Ibid.
The Court maintains that this case differs from Locke
because no pertinent “ `historic and substantial' ” tradition
supports Montana's decision. Ante, at 480. But the Court's
historical analysis is incomplete at best. For one thing, the
Court discounts anything beyond the 1850s as failing to “es-
tablish an early American tradition,” ante, at 482, while itself
relying on examples from around that time, ante, at 480–
481. For another, although the States may have had “rich
diversity of experience” at the founding, “the story relevant
here is one of consistency.” Trinity Lutheran, 582 U. S., at
481 (Sotomayor, J., dissenting); see also id., at 482–489
(chronicling state histories). The common thread was that
“those who lived under the laws and practices that formed
religious establishments made a considered decision that
civil government should not fund ministers and their houses
of worship.” Id., at 486. And as the Court's recent prece-
dent holds, at least some teachers in religiously affliated
schools are ministers who inculcate the faith. See Hosanna-
Tabor Evangelical Lutheran Church and School v. EEOC,
565 U. S. 171, 178, 196 (2012); see also ante, at 510 (Gorsuch,
J., concurring); ante, at 525, 532 (Breyer, J., dissenting).
The Court further suggests that by abstaining from fund-
ing religious activity, the State is “ `suppress[ing]' ” and
“penaliz[ing]” religious activity. Ante, at 485–486. But a
State's decision not to fund religious activity does not “disfa-
vor religion; rather, it represents a valid choice to remain
secular in the face of serious establishment and free exercise
concer ns. ” Tr in i ty Lu the ran, 582 U. S., at 493 (Soto-
mayor, J., dissenting). That is, a “legislature's decision not

548 ESPINOZA
v. MONTANA DEPT. OF REVENUE
Sotomayor, J., dissenting
to subsidize the exercise of a fundamental right does not in-
fr
inge the right.” Regan v. Taxation With Representation
of Wash., 461 U. S. 540, 549 (1983).
Finally, it is no answer to say that this case involves “dis-
crimination.” Ante, at 477–478. A “decision to treat enti-
ties differently based on distinctions that the Religion
Clauses make relevant does not amount to discrimination.”
Trinity Lutheran, 582 U. S., at 492 (Sotomayor, J., dissent-
ing). So too here.
***
Today's ruling is perverse. Without any need or power to
do so, the Court appears to require a State to reinstate a
tax-credit program that the Constitution did not demand in
the frst place. We once recognized that “[w]hile the Free
Exercise Clause clearly prohibits the use of state action to
deny the rights of free exercise to anyone, it has never meant
that a majority could use the machinery of the State to prac-
tice its beliefs.” Schempp, 374 U. S., at 226 (emphasis de-
leted). Today's Court, by contrast, rejects the Religion
Clauses' balanced values in favor of a new theory of free
exercise, and it does so only by setting aside well-established
judicial constraints.
I respectfully dissent.

OCTOBER
TERM, 2019
549
Syllabus
UNITED STATES PATENT AND TRADEMARK
OFFICE
et al. v. BOOKING.COM B. V.
certiorari to the united states court of appeals for
the fourth circuit
No. 19–46. Argued May 4, 2020—Decided June 30, 2020
A generic name—the name of a class of products or services—is ineligible
for federal trademark registration. Respondent Booking.com, an enter-
prise that maintains a travel-reservation website by the same name,
sought federal registration of marks including the term “Booking.com.”
Concluding that “Booking.com” is a generic name for online hotel-
reservation services, the U. S. Patent and Trademark Offce (PTO) re-
fused registration. Booking.com sought judicial review, and the Dis-
trict Court determined that “Booking.com”—unlike the term “booking ”
standing alone—is not generic. The Court of Appeals affrmed, fnding
no error in the District Court's assessment of how consumers perceive
the term “Booking.com.” The appellate court also rejected the PTO's
contention that, as a rule, combining a generic term like “booking ” with
“.com” yields a generic composite.
Held: A term styled “generic.com” is a generic name for a class of goods
or services only if the term has that meaning to consumers. Pp. 556–564.
(a) Whether a compound term is generic turns on whether that term,
taken as a whole, signifes to consumers a class of goods or services.
The courts below determined, and the PTO no longer disputes, that
consumers do not in fact perceive the term “Booking.com” that way.
Because “Booking.com” is not a generic name to consumers, it is not
generic. Pp. 556–557.
(b) Opposing that determination, the PTO urges a nearly per se rule:
When a generic term is combined with a generic Internet-domain-name
suffx like “.com,” the resulting combination is generic. The rule the
PTO proffers is not borne out by the PTO's own past practice and lacks
support in trademark law or policy. Pp. 557–564.
(1) The PTO's proposed rule does not follow from Goodyear's India
Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598. Good-
year, the PTO maintains, established that adding a generic corporate
designation like “Company” to a generic term does not confer trademark
eligibility. According to the PTO, adding “.com” to a generic term—like
adding “Company”—can convey no source-identifying meaning. That
premise is faulty, for only one entity can occupy a particular Internet
domain name at a time, so a “generic.com” term could convey to consum-

550 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Syllabus
ers an association with a particular website. Moreover, an unyielding
lega
l rule that entirely disregards consumer perception is incompatible
with a bedrock principle of the Lanham Act: The generic (or nongeneric)
character of a particular term depends on its meaning to consumers,
i. e., do consumers in fact perceive the term as the name of a class or,
instead, as a term capable of distinguishing among members of the class.
Pp. 558–561.
(2) The PTO's policy concerns do not support a categorical rule
against registration of “generic.com” terms. The PTO asserts that
trademark protection for “Booking.com” would give the mark owner
undue control over similar language that others should remain free to
use. That concern attends any descriptive mark. Guarding against
the anticompetitive effects the PTO identifes, several doctrines ensure
that registration of “Booking.com” would not yield its holder a monopoly
on the term “booking.” The PTO also doubts that owners of “generic
.com” brands need trademark protection in addition to existing competi-
tive advantages. Such advantages, however, do not inevitably disqual-
ify a mark from federal registration. Finally, the PTO urges that
Booking.com could seek remedies outside trademark law, but there is no
basis to deny Booking.com the same benefts Congress accorded other
marks qualifying as nongeneric. Pp. 561–564.
915 F. 3d 171, affrmed.
Ginsburg, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, Sotomayor, Kagan, Gorsuch, and Kav-
anaugh, JJ., joined. Sotomayor, J., fled a concurring opinion, post,
p. 564. Breyer, J., fled a dissenting opinion, post, p. 565.
Erica L. Ross argued the cause for petitioners. With her
on the briefs were Solicitor General Francisco, Assistant
Attorney General Hunt, Deputy Solicitor General Stewart,
Mark R. Freeman, Daniel Tenny, Sarah T. Harris, Thomas
W. Krause, Christina J. Hieber, and Molly R. Silfen.
Lisa S. Blatt argued the cause for respondent. With her
on the brief were Sarah M. Harris, Eden Schiffmann, David
H. Bernstein, Jared I. Kagan, and Jonathan E. Moskin.*
*Alexandra H. Moss and Corynne McSherry fled a brief for the Elec-
tronic Frontier Foundation as amicus curiae urging reversal.
Briefs of amici curiae urging affrmance were fled for the Boston
Patent Law Association by Erik Paul Belt, Lori Jane Shyavitz, and Alex-
ander L. Ried; for the Coalition of .com Brand Owners by Thad Chaloem-

Cite
as: 591 U. S. 549 (2020)
551
Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
Th
is case concerns eligibility for federal trademark regis-
tration. Respondent Booking.com, an enterprise that main-
tains a travel-reservation website by the same name, sought
to reg ister the mark “Book i ng.com. ” Concludi ng that
“Booking.com” is a generic name for online hotel-reservation
services, the U. S. Patent and Trademark Offce (PTO) re-
fused registration.
A generic name—the name of a class of products or serv-
ices—is ineligible for federal trademark registration. The
word “booking,” the parties do not dispute, is generic for
hotel-reservation services. “Booking.com” must also be ge-
neric, the PTO maintains, under an encompassing rule the
PTO currently urges us to adopt: The combination of a ge-
neric word and “.com” is generic.
In accord with the frst- and second-instance judgments in
this case, we reject the PTO's sweeping rule. A term styled
“generic.com” is a generic name for a class of goods or serv-
ices only if the term has that meaning to consumers. Con-
sumers, according to lower court determinations uncontested
here by the PTO, do not perceive the term “Booking.com” to
tiarana, Phillip Barengolts, and Jacquelyn R. Prom; for the Intellectual
Property Law Association of Chicago by Margaret M. Duncan; for the
Internet Commerce Association by Megan L. Brown; for Salesforce.com,
Inc., et al. by Thomas G. Hungar, Howard S. Hogan, and Joshua M. Wes-
neski; for Survey Scholars et al. by Mark D. Harris; and for Trademark
and Internet Law Professors by J. Michael Jakes.
Briefs of amici curiae were fled for the American Intellectual Property
Law Association by Craig B. Whitney and Barbara A. Fiacco; for the
Association of Amicus Counsel by Charles E. Miller, Robert J. Rando, and
Alan M. Sack; for the Intellectual Property Owners Association by Eric
R. Moran, Nicole E. Grimm, and Kevin H. Rhodes; for the International
Trademark Association by Lawrence K. Nodine, A. Justin Ourso III, Mar-
tin Schwimmer, and Jennifer L. Gregor; for the New York Intellectual
Property Law Association by Michael Carl Cannata, Frank Misiti, Ste-
phen J. Smirti, Jr., Kathleen E. McCarthy, Robert M. Isackson, William
Thornashower, and Ronald D. Coleman; for Trademark Scholars by Rebe-
cca Tushnet, pro se; and for Peter N. Golder et al. by R. Charles Henn, Jr.

552 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Opinion of the Court
signify online hotel-reservation services as a class. In cir-
cumst
ances like those this case presents, a “generic.com”
term is not generic and can be eligible for federal trade-
mark registration.
I
A
A trademark distinguishes one producer's goods or serv-
ices from another's. Guarding a trademark against use by
others, this Court has explained, “secure[s] to the owner of
the mark the goodwill” of her business and “protect[s] the
ability of consumers to distinguish among competing produc-
ers.” Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S.
189, 198 (1985); see S. Rep. No. 1333, 79th Cong., 2d Sess., 3
(1946) (trademark statutes aim to “protect the public so it
may be confdent that, in purchasing a product bearing a par-
ticular trade-mark which it favorably knows, it will get the
product which it asks for and wants to get”). Trademark
protection has roots in common law and equity. Matal v.
Tam, 582 U. S. 218, 224 (2017). Today, the Lanham Act,
enacted in 1946, provides federal statutory protection for
trademarks. 60 Stat. 427, as amended, 15 U. S. C. § 1051
et seq. We have recognized that federal trademark protec-
tion, supplementing state law, “supports the free fow of com-
merce” and “foster[s] competition.” Matal, 582 U. S., at
225–226 (internal quotation marks omitted).
The Lanham Act not only arms trademark owners with
federal claims for relief; importantly, it establishes a system
of federal trademark registration. The owner of a mark on
the principal register enjoys “valuable benefts,” including a
presumption that the mark is valid. Iancu v. Brunetti, 588
U. S. 388, 391 (2019); see §§ 1051, 1052. The supplemental
register contains other product and service designations,
some of which could one day gain eligibility for the principal
register. See § 1091. The supplemental register accords
more modest benefts; notably, a listing on that register

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553
Opinion of the Court
announces one's use of the designation to others consider-
i
ng a similar mark. See 3 J. McCarthy, Trademarks and
Unfair Competition § 19:37 (5th ed. 2019) (hereinafter Mc-
Carthy). Even without federal registration, a mark may be
eligible for protection against infringement under both the
Lanham Act and other sources of law. See Matal, 582 U. S.,
at 225–226.
Prime among the conditions for registration, the mark
must be one “by which the goods of the applicant may be
disti ng uished from the goods of others. ” § 1052; see
§ 1091(a) (supplemental register contains “marks capable of
distinguishing . . . goods or services”). Distinctiveness is
often expressed on an increasing scale: Word marks “may be
(1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or
(5) fanciful.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S.
763, 768 (1992).
The more distinctive the mark, the more readily it qualifes
for the principal register. The most distinctive marks—
those that are “ `arbitrary' (`Camel' cigarettes), `fanciful'
(`Kodak' flm), or `suggestive' (`Tide' laundry detergent)”—
may be placed on the principal register because they are
“inherently distinctive.” Wal-Mart Stores, Inc. v. Samara
Brothers, Inc., 529 U. S. 205, 210–211 (2000). “Descriptive”
terms, in contrast, are not eligible for the principal register
based on their inherent qualities alone. E. g., Park 'N Fly,
Inc. v. Dollar Park & Fly, Inc., 718 F. 2d 327, 331 (CA9 1983)
(“Park 'N Fly” airport parking is descriptive), rev'd on other
grounds, 469 U. S. 189 (1985). The Lanham Act, “liberaliz-
[ing] the common law,” “extended protection to descriptive
marks.” Qualitex Co. v. Jacobson Products Co., 514 U. S.
159, 171 (1995). But to be placed on the principal register,
descriptive terms must achieve signifcance “in the minds of
the public” as identifying the applicant's goods or services—
a quality called “acquired distinctiveness” or “secondary
meaning.” Wal-Mart Stores, 529 U. S., at 211 (internal quo-
tation marks omitted); see § 1052(e), (f ). Without secondary

554 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Opinion of the Court
meaning, descriptive terms may be eligible only for the sup-
plement
al register. § 1091(a).
At the lowest end of the distinctiveness scale is “the ge-
neric name for the goods or services.” §§ 1127, 1064(3),
1065(4). The name of the good itself (e. g., “wine”) is inca-
pable of “distinguish[ing] [one producer's goods] from the
goods of others” and is therefore ineligible for registration.
§ 1052; see § 1091(a). Indeed, generic terms are ordinarily
ineligible for protection as trademarks at all. See Restate-
ment (Third) of Unfair Competition § 15, p. 142 (1993); Oto-
koyama Co. v. Wine of Japan Import, Inc., 175 F. 3d 266, 270
(CA2 1999) (“[E]veryone may use [generic terms] to refer to
the goods they designate.”).
B
Booking.com is a digital travel company that provides
hotel reservations and other services under the brand
“Book i ng.com, ” wh ich is a lso the domai n name of its
website.
1
Booking.com fled applications to register four
marks in connection with travel-related services, each with
di fferent v isua l features but a l l cont ai ni ng the ter m
“Booking.com.”
2
Both a PTO examining attorney and the PTO's Trade-
mark Trial and Appeal Board concluded that the term
“Booking.com” is generic for the services at issue and is
therefore unregistrable. “Booking,” the Board observed,
means making travel reservations, and “.com” signifes a
1
A domain name identifes an address on the Internet. The rightmost
component of a domain name—“.com” in “Booking.com”—is known as the
top-level domain. Domain names are unique; that is, a given domain name
is assigned to only one entity at a time.
2
For simplicity, this opinion uses the term “trademark” to encompass
the marks whose registration Booking.com seeks. Although Booking.com
uses the marks in connection with services, not goods, rendering the
marks “service marks” rather than “trademarks” under 15 U. S. C. § 1127,
that distinction is immaterial to the issue before us.

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555
Opinion of the Court
commercial website. The Board then ruled that “customers
wou
ld understand the term BOOKING.COM primarily to
refer to an online reservation service for travel, tours, and
lodgings.” App. to Pet. for Cert. 164a, 176a. Alternatively,
the Board held that even if “Booking.com” is descriptive,
not generic, it is unregistrable because it lacks secondary
meaning.
Booking.com sought review in the U. S. District Court for
the Eastern District of Virginia, invoking a mode of review
that allows Booking.com to introduce evidence not presented
to the agency. See § 1071(b). Relying in signifcant part on
Booking.com's new evidence of consumer perception, the Dis-
trict Court concluded that “Booking.com”—unlike “book-
ing ”—is not generic. The “consuming public,” the court
found, “primarily understands that BOOKING.COM does not
refer to a genus, rather it is descriptive of services involving
`booking ' available at that domain name.” Booking.com
B.V. v. Matal, 278 F. Supp. 3d 891, 918 (2017). Having deter-
mined that “Booking.com” is descriptive, the District Court
additionally found that the term has acquired secondary
meaning as to hotel-reservation services. For those serv-
ices, the District Court therefore concluded, Booking.com's
marks meet the distinctiveness requirement for registration.
The PTO appealed only the District Court's determination
that “Booking.com” is not generic. Finding no error in the
District Court's assessment of how consumers perceive the
term “Booking.com,” the Court of Appeals for the Fourth
Circuit affrmed the court of frst instance's judgment. In
so ruling, the appeals court rejected the PTO's contention
that the combination of “.com” with a generic term like
“booking ” “is necessarily generic.” 915 F. 3d 171, 184
(2019). Dissenting in relevant part, Judge Wynn concluded
that the District Court mistakenly presumed that “generic
.com” terms are usually descriptive, not generic.
We granted certiorari, 589 U. S. 1055 (2019), and now af-
frm the Fourth Circuit's decision.

556 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Opinion of the Court
II
Although
the parties here disagree about the circum-
stances in which terms like “Booking.com” rank as generic,
several guiding principles are common ground. First, a “ge-
neric” term names a “class” of goods or services, rather than
any particular feature or exemplifcation of the class. Brief
for Petitioners 4; Brief for Respondent 6; see §§ 1127, 1064(3),
1065(4) (referring to “the generic name for the goods or serv-
ices”); Park 'N Fly, 469 U. S., at 194 (“A generic term is one
that refers to the genus of which the particular product is a
species.”). Second, for a compound term, the distinctiveness
inquiry trains on the term's meaning as a whole, not its parts
in isolation. Reply Brief 9; Brief for Respondent 2; see Es-
tate of P. D. Beckwith, Inc. v. Commissioner of Patents, 252
U. S. 538, 545–546 (1920). Third, the relevant meaning of a
term is its meaning to consumers. Brief for Petitioners 43–
44; Brief for Respondent 2; see Bayer Co. v. United Drug
Co., 272 F. 505, 509 (SDNY 1921) (Hand, J.) (“What do the
buyers understand by the word for whose use the parties
are contending?”). Eligibility for registration, all agree,
turns on the mark's capacity to “distinguis[h]” goods “in com-
merce.” § 1052. Evidencing the Lanham Act's focus on
consumer perception, the section governing cancellation of
registration provides that “[t]he primary signifcance of the
registered mark to the relevant public . . . shall be the test
for determining whether the registered mark has become the
generic name of goods or services.” § 1064(3).
3
3
The U. S. Patent and Trademark Office (PTO) suggests that the
primary-signifcance test might not govern outside the context of § 1064(3),
which subjects to cancellation marks previously registered that have “be-
come” generic. See Reply Brief 11; Tr. of Oral Arg. 19. To so confne
the primary-signifcance test, however, would upset the understanding,
shared by Courts of Appeals and the PTO's own manual for trademark
examiners, that the same test governs whether a mark is registrable in
the frst place. See, e. g., In re Cordua Restaurants, Inc., 823 F. 3d 594,
599 (CA Fed. 2016); Nartron Corp. v. STMicroelectronics, Inc., 305
F. 3d 397, 404 (CA6 2002); Genesee Brewing Co. v. Stroh Brewing Co., 124
F. 3d 137, 144 (CA2 1997); Trademark Manual of Examining Procedure

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557
Opinion of the Court
Under these principles, whether “Booking.com” is generic
tur
ns on whether that term, taken as a whole, signifes to
consumers the class of online hotel-reservation services.
Thus, if “Booking.com” were generic, we might expect con-
sumers to understand Travelocity—another such service—
to be a “Booking.com.” We might similarly expect that a
consumer, searching for a trusted source of online hotel-
reservation services, could ask a frequent traveler to name
her favorite “Booking.com” provider.
Consumers do not in fact perceive the term “Booking.com”
that way, the courts below determined. The PTO no longer
disputes that determination. See Pet. for Cert. I; Brief
for Petitioners 17–18 (contending only that a consumer-
perception inquiry was unnecessary, not that the lower
courts' consumer-perception determination was wrong).
That should resolve this case: Because “Booking.com” is not
a generic name to consumers, it is not generic.
III
Opposing that conclusion, the PTO urges a nearly per se
rule that would render “Booking.com” ineligible for registra-
tion regardless of specifc evidence of consumer perception.
In the PTO's view, which the dissent embraces, when a ge-
neric term is combined with a generic top-level domain like
“.com,” the resulting combination is generic. In other
words, every “generic.com” term is generic according to the
PTO, absent exceptional circumstances.
4
§ 1209.01(c)(i), p. 1200–267 (Oct. 2018), http://tmep.uspto.gov. We need not
address today the scope of the primary-signifcance test's application, for
our analysis does not depend on whether one meaning among several is
“primary.” Suffcient to resolve this case is the undisputed principle that
consumer perception demarcates a term's meaning.
4
The PTO notes only one possible exception: Sometimes adding a ge-
neric term to a generic top-level domain results in wordplay (for example,
“tennis.net”). That special case, the PTO acknowledges, is not presented
here and does not affect our analysis. See Brief for Petitioners 25, n. 6;
Tr. of Oral Arg. 25–26.

558 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Opinion of the Court
The PTO's own past practice appears to refect no such
c
omprehensive rule. See, e. g., Trademark Registration
No. 3,601,346 (“ART.COM” on principal register for, inter
alia, “[o]nline retail store services” offering “art prints, orig-
inal art, [and] art reproductions”); Trademark Registration
No. 2,580,467 (“DATING.COM” on supplemental register for
“dating services”). Existing registrations inconsistent with
the rule the PTO now advances would be at risk of cancel-
lation if the PTO's current view were to prevail. See
§ 1064(3). We decline to adopt a rule essentially excluding
registration of “generic.com” marks. As explained below,
we discern no support for the PTO's current view in trade-
mark law or policy.
A
The PTO urges that the exclusionary rule it advocates fol-
lows from a common-law principle, applied in Goodyear's
India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128
U. S. 598 (1888), that a generic corporate designation added
to a generic term does not confer trademark eligibility. In
Goodyear, a decision predating the Lanham Act, this Court
held that “Goodyear Rubber Company” was not “capable of
exclusive appropriation.” Id., at 602. Standing alone, the
term “Goodyear Rubber” could not serve as a trademark be-
cause it referred, in those days, to “well-known classes of
goods produced by the process known as Goodyear's inven-
tion.” Ibid. “[A]ddition of the word `Company' ” supplied
no protectable meaning, the Court concluded, because adding
“Company” “only indicates that parties have formed an asso-
ciation or partnership to deal in such goods.” Ibid. Per-
mitting exclusive rights in “Goodyear Rubber Company” (or
“Wine Company, Cotton Company, or Grain Company”), the
Court explained, would tread on the right of all persons “to
deal in such articles, and to publish the fact to the world.”
Id., at 602–603.
“Generic.com,” the PTO maintains, is like “Generic Com-
pany” and is therefore ineligible for trademark protection,

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559
Opinion of the Court
let alone federal registration. According to the PTO, adding
“.com”
to a generic term—like adding “Company”—“conveys
no additional meaning that would distinguish [one provider's]
services from those of other providers.” Brief for Petition-
ers 44. The dissent endorses that proposition: “Generic
.com” conveys that the generic good or service is offered on-
line “and nothing more.” Post, at 565.
That premise is faulty. A “generic.com” term might also
convey to consumers a source-identifying characteristic: an
association with a particular website. As the PTO and the
dissent elsewhere acknowledge, only one entity can occupy a
particular Internet domain name at a time, so “[a] consumer
who is familiar with that aspect of the domain-name system
can infer that BOOKING.COM refers to some specifc en-
tity.” Brief for Petitioners 40. See also Tr. of Oral Arg. 5
(“Because domain names are one of a kind, a signifcant por-
tion of the public will always understand a generic `.com'
term to refer to a specifc business . . . .”); post, at 7 (the
“exclusivity” of “generic.com” terms sets them apart from
terms like “Wine, Inc.” and “The Wine Company”). Thus,
consumers could understand a given “generic.com” term to
describe the corresponding website or to identify the web-
site's proprietor. We therefore resist the PTO's position
that “generic.com” terms are capable of signifying only an
entire class of online goods or services and, hence, are cate-
gorically incapable of identifying a source.
5
5
In passing, the PTO urges us to disregard that a domain name is as-
signed to only one entity at a time. That fact, the PTO suggests, stems
from “a functional characteristic of the Internet and the domain-name sys-
tem,” and functional features cannot receive trademark protection. Brief
for Petitioners 32. “[A] product feature is functional, and cannot serve as
a trademark,” we have held, “if it is essential to the use or purpose of the
article or if it affects the cost or quality of the article.” TrafFix Devices,
Inc. v. Marketing Displays, Inc., 532 U. S. 23, 32 (2001) (internal quotation
marks omitted); see § 1052(e) (barring from the principal registrar “any
matter that, as a whole, is functional”). This case, however, does not con-
cern trademark protection for a feature of the Internet or the domain-

560 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Opinion of the Court
The PTO's reliance on Goodyear is fawed in another re-
spec
t. The PTO understands Goodyear to hold that “Ge-
neric Company” terms “are ineligible for trademark pro-
tection as a matter of law”—regardless of how “consumers
would understand” the term. Brief for Petitioners 38.
But, as noted, whether a term is generic depends on its
meaning to consumers. Supra, at 556–557. That bedrock
principle of the Lanham Act is incompatible with an unyield-
ing legal rule that entirely disregards consumer perception.
Instead, Goodyear refects a more modest principle harmoni-
ous with Congress' subsequent enactment: A compound of
generic elements is generic if the combination yields no addi-
tional meaning to consumers capable of distinguishing the
goods or services.
The PTO also invokes the oft-repeated principle that “no
matter how much money and effort the user of a generic
term has poured into promoting the sale of its merchandise
. . . , it cannot deprive competing manufacturers of the prod-
uct of the right to call an article by its name.” Abercrom-
bie & Fitch Co. v. Hunting World, Inc., 537 F. 2d 4, 9 (CA2
1976). That principle presupposes that a generic term is at
issue. But the PTO's only legal basis for deeming “generic
.com” terms generic is its mistaken reliance on Goodyear.
While we reject the rule proffered by the PTO that
“generic.com” terms are generic names, we do not embrace
a rule automatically classifying such terms as nongeneric.
Whether any given “generic.com” term is generic, we hold,
depends on whether consumers in fact perceive that term as
name system; Booking.com lays no claim to the use of unique domain
names generally. Nor does the PTO contend that the particular domain
name “Booking.com” is essential to the use or purpose of online hotel-
reservation services, affects these services' cost or quality, or is otherwise
necessary for competitors to use. In any event, we have no occasion to
decide the applicability of § 1052(e)'s functionality bar, for the sole ground
on which the PTO refused registration, and the sole claim before us, is
that “Booking.com” is generic.

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561
Opinion of the Court
the name of a class or, instead, as a term capable of distin-
g
uishing among members of the class.
6
B
The PTO, echoed by the dissent, post, at 574–576, objects
that protecting “generic.com” terms as trademarks would
disserve trademark law's animating policies. We disagree.
The PTO's principal concern is that trademark protection
for a term like “Booking.com” would hinder competitors.
But the PTO does not assert that others seeking to offer
online hotel-reservation services need to call their services
“Booking.com.” Rather, the PTO fears that trademark pro-
tection for “Booking.com” could exclude or inhibit competi-
tors from using the term “booking ” or adopting domain
names like “ebooking.com” or “hotel-booking.com.” Brief
for Petitioners 27–28. The PTO's objection, therefore, is not
to exclusive use of “Booking.com” as a mark, but to undue
6
Evidence informing that inquiry can include not only consumer sur-
veys, but also dictionaries, usage by consumers and competitors, and any
other source of evidence bearing on how consumers perceive a term's
meaning. Surveys can be helpful evidence of consumer perception but
require care in their design and interpretation. See Brief for Trademark
Scholars as Amici Curiae 18–20 (urging that survey respondents may con-
fate the fact that domain names are exclusive with a conclusion that a
given “generic.com” term has achieved secondary meaning). Moreover,
diffcult questions may be presented when a term has multiple concurrent
meanings to consumers or a meaning that has changed over time. See,
e. g., 2 J. McCarthy, Trademarks and Unfair Competition § 12:51 (5th ed.
2019) (discussing terms that are “a generic name to some, a trademark to
others”); id., § 12:49 (“Determining the distinction between generic and
trademark usage of a word . . . when there are no other sellers of [the
good or service] is one of the most diffcult areas of trademark law.”).
Such issues are not here entailed, for the PTO does not contest the lower
courts' assessment of consumer perception in this case. See Pet. for Cert.
I; Brief for Petitioners 17–18. For the same reason, while the dissent
questions the evidence on which the lower courts relied, post, at 571–572,
573, we have no occasion to reweigh that evidence. Cf. post, at 565 (Soto-
mayor, J., concurring).

562 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Opinion of the Court
control over similar language, i. e., “booking,” that others
shou
ld remain free to use.
That concern attends any descriptive mark. Responsive
to it, trademark law hems in the scope of such marks short
of denying trademark protection altogether. Notably, a
competitor's use does not infringe a mark unless it is likely
to confuse consumers. See §§ 1114(1), 1125(a)(1)(A); 4 Mc-
Carthy § 23:1.50 (collecting state law). In assessing the like-
lihood of confusion, courts consider the mark's distinctive-
ness: “The weaker a mark, the fewer are the junior uses
that will trigger a likelihood of consumer confusion.” 2 id.,
§ 11:76. When a mark incorporates generic or highly de-
scriptive components, consumers are less likely to think that
other uses of the common element emanate from the mark's
owner. Ibid. Similarly, “[i]n a `crowded' feld of look-alike
marks” (e. g., hotel names including the word “grand”), con-
sumers “may have learned to carefully pick out” one mark
from another. Id., § 11:85. And even where some consumer
confusion exists, the doctrine known as classic fair use, see
id., § 11:45, protects from liability anyone who uses a descrip-
tive term, “fairly and in good faith” and “otherwise than as
a mark,” merely to describe her own goods. 15 U. S. C.
§ 1115(b)(4); see KP Permanent Make-Up, Inc. v. Lasting
Impression I, Inc., 543 U. S. 111, 122–123 (2004).
These doctrines guard against the anticompetitive effects
the PTO identifes, ensuring that registration of “Booking
.com” would not yield its holder a monopoly on the term
“ book ing. ” Book ing.com concedes that “Book ing.com”
would be a “weak” mark. Tr. of Oral Arg. 66. See also id.,
at 42–43, 55. The mark is descriptive, Booking.com recog-
nizes, making it “harder . . . to show a likelihood of con-
fusion.” Id., at 43. Furthermore, because its mark is
one of many “similarly worded marks,” Booking.com accepts
that close variations are unlikely to infringe. Id., at
66. And Booking.com acknowledges that federal registra-
tion of “Booking.com” would not prevent competitors from

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Opinion of the Court
using the word “booking ” to describe their own services.
Id.
, at 55.
The PTO also doubts that owners of “generic.com” brands
need trademark protection in addition to existing competi-
tive advantages. Booking.com, the PTO argues, has already
seized a domain name that no other website can use and is
easy for consumers to fnd. Consumers might enter “the
word `booking ' in a search engine,” the PTO observes, or
“proceed directly to `booking.com' in the expectation that
[online hotel-booking] services will be offered at that ad-
dress.” Brief for Petitioners 32. Those competitive advan-
tages, however, do not inevitably disqualify a mark from
federal registration. All descriptive marks are intuitively
linked to the product or service and thus might be easy for
consumers to fnd using a search engine or telephone direc-
tory. The Lanham Act permits registration nonetheless.
See § 1052(e), (f ). And the PTO fails to explain how the ex-
clusive connection between a domain name and its owner
makes the domain name a generic term all should be free
to use. That connection makes trademark protection more
appropriate, not less. See supra, at 558–559.
Finally, even if “Booking.com” is generic, the PTO urges,
unfair-competition law could prevent others from passing off
their services as Booking.com's. Cf. Genesee Brewing Co. v.
Stroh Brewing Co., 124 F. 3d 137, 149 (CA2 1997); Blinded
Veterans Assn. v. Blinded Am. Veterans Foundation, 872
F. 2d 1035, 1042–1048 (CADC 1989). But federal trademark
registration would offer Booking.com greater protection.
See, e. g., Genesee Brew ing, 124 F. 3d, at 151 (unfair-
competition law would oblige competitor at most to “make
more of an effort” to reduce confusion, not to cease market-
ing its product using the disputed term); Matal, 582 U. S., at
226–227 (federal registration confers valuable benefts); Brief
for Respondent 26 (expressing intention to seek protections
available to trademark owners under the Anticybersquatting
Consumer Protection Act, 15 U. S. C. § 1125(d)); Brief for Co-

564 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Sotomayor, J., concurring
alition of .Com Brand Owners as Amici Curiae 14–19 (trade-
mark
rights allow mark owners to stop domain-name abuse
through private dispute resolution without resorting to
litigation). We have no cause to deny Booking.com the
same benefts Congress accorded other marks qualifying as
nongeneric.
***
The PTO challenges the judgment below on a sole ground:
It urges that, as a rule, combining a generic term with “.com”
yields a generic composite. For the above-stated reasons,
we decline a rule of that order, one that would largely disal-
low registration of “generic.com” terms and open the door to
cancellation of scores of currently registered marks. Ac-
cordingly, the judgment of the Court of Appeals for the
Fourth Circuit regarding eligibility for trademark registra-
tion is
Affrmed.
Justice Sotomayor, concurring.
The question before the Court here is simple: whether
there is a nearly per se rule against trademark protection
for a “generic.com” term. See ante, at 557–558; post, at 574
(Breyer, J., dissenting). I agree with the Court that there
is no such rule, a holding that accords with how the U. S.
Patent and Trademark Offce (PTO) has treated such terms
in the past. See ante, at 558 (noting that the “PTO's own
past practice appears to refect no such comprehensive
rule”). I add two observations.
First, the dissent wisely observes that consumer-survey
evidence “may be an unreliable indicator of genericness.”
Post, at 573. Flaws in a specifc survey design, or weak-
nesses inherent in consumer surveys generally, may limit the
probative value of surveys in determining whether a particu-
lar mark is descriptive or generic in this context. But I do
not read the Court's opinion to suggest that surveys are the
be-all and end-all. As the Court notes, sources such as “dic-

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565
Breyer, J., dissenting
tionaries, usage by consumers and competitors, and any
other
source of evidence bearing on how consumers perceive
a term's meaning ” may also inform whether a mark is ge-
neric or descriptive. Ante, at 561, n. 6.
Second, the PTO may well have properly concluded, based
on such dictionary and usage evidence, that Booking.com is
in fact generic for the class of services at issue here, and the
District Court may have erred in concluding to the contrary.
But that question is not before the Court. With these un-
derstandings, I concur in the Court's opinion.
Justice Breyer, dissenting.
What is Booking.com? To answer this question, one need
only consult the term itself. Respondent provides an online
booking service. The company's name informs the con-
sumer of the basic nature of its business and nothing more.
Therein lies the root of my disagreement with the majority.
Trademark law does not protect generic terms, meaning
terms that do no more than name the product or service
itself. This principle preserves the linguistic commons by
preventing one producer from appropriating to its own exclu-
sive use a term needed by others to describe their goods or
services. Today, the Court holds that the addition of “.com”
to an otherwise generic term, such as “booking,” can yield
a protectable trademark. Because I believe this result is
inconsistent with trademark principles and sound trademark
policy, I respectfully dissent.
I
A
Trademark law protects those “ `distinctive marks—words,
names, symbols, and the like' ” that “ `distinguish a particular
artisan's goods from those of others.' ” Matal v. Tam, 582
U. S. 218, 223 (2017) (quoting B&B Hardware, Inc. v. Hargis
Industries, Inc., 575 U. S. 138, 142 (2015)). To determine
whether a given term is suffciently distinctive to serve as a

566 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Breyer, J., dissenting
trademark, courts generally place it in one of fve categories.
The
frst four kinds of terms are eligible for federal trade-
mark registration. The ffth is not.
I list the frst three only to give context and allow compar-
isons. They are: (1) “ `fanciful' ” terms, such as “Kodak”
(flm); (2) “ `arbitrary' ” terms, such as “Camel” (cigarettes);
and (3) “ `suggestive' ” terms, such as “Tide” (laundry deter-
gent). Ante, at 553. These kinds of terms are “ `inherently
distinctive.' ” Ibid. The public can readily understand that
they identify and distinguish the goods or services of one
frm from those of all others. See Two Pesos, Inc. v. Taco
Cabana, Inc., 505 U. S. 763, 768 (1992). By preventing oth-
ers from copying a distinctive mark, trademark law “pro-
tect[s] the ability of consumers to distinguish among compet-
ing producers” and “secure[s] to the owner of the mark the
goodwill of his business.” Park 'N Fly, Inc. v. Dollar
Park & Fly, Inc., 469 U. S. 189, 198 (1985). Ultimately, the
purpose of trademark law is to “foster competition” and
“suppor[t] the free fow of commerce.” Matal, 582 U. S., at
225 (internal quotation marks omitted).
This case concerns two further categories. There are “de-
scriptive” terms, such as “Best Buy” (electronics) or “First
National Bank” (banking services), that “immediately con-
ve[y] information concerning a feature, quality, or character-
istic” of the producer's goods or services. In re North Caro-
lina Lottery, 866 F. 3d 1363, 1367 (CA Fed. 2017). A
descriptive term can be registered as a trademark only if it
acquires “secondary meaning ”—i. e., the public has come to
associate it with a particular frm or its product. Two Pesos,
505 U. S., at 769.
There are also “generic” terms, such as “wine” or “hair-
cuts.” They do nothing more than inform the consumer of
the kind of product that the frm sells. We have called ge-
neric terms “descriptive of a class of goods.” Goodyear's
India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128
U. S. 598, 602 (1888). And we have said that they simply

Cite
as: 591 U. S. 549 (2020)
567
Breyer, J., dissenting
convey the “genus of which the particular product is a spe-
cies.
” Park 'N Fly, 469 U. S., at 194. A generic term is not
eligible for use as a trademark. That principle applies even
if a particular generic term “ha[s] become identifed with a
frst user” in the minds of the consuming public. CES Pub-
lishing Corp. v. St. Regis Publications, Inc., 531 F. 2d 11, 13
(CA2 1975) (Friendly, J.). The reason is simple. To hold
otherwise “would grant the owner of the mark a monopoly,
since a competitor could not describe his goods as what they
are.” Ibid.
Courts have recognized that it is not always easy to distin-
guish generic from descriptive terms. See, e. g., Abercrom-
bie & Fitch Co. v. Hunting World, Inc., 537 F. 2d 4, 9 (CA2
1976) (Friendly, J.). It is particularly diffcult to do so when
a frm wishes to string together two or more generic terms
to create a compound term. Despite the generic nature of
its component parts, the term as a whole is not necessarily
generic. In such cases, courts must determine whether the
combination of generic terms conveys some distinctive,
source-identifying meaning that each term, individually,
lacks. See 2 J. McCarthy, Trademarks and Unfair Competi-
tion § 12:39 (5th ed. Supp. 2020) (McCarthy). If the meaning
of the whole is no greater than the sum of its parts, then the
compound is itself generic. See Princeton Vanguard, LLC
v. Frito-Lay North Am., Inc., 786 F. 3d 960, 966–967 (CA
Fed. 2015); In re Gould Paper Corp., 834 F. 2d 1017, 1018
(CA Fed. 1987) (registration is properly denied if “the sepa-
rate words joined to form a compound have a meaning identi-
cal to the meaning common usage would ascribe to those
words as a compound”); see also 2 McCarthy § 12:39 (collect-
ing examples of compound terms held to be generic).
In Goodyear, 128 U. S. 598, we held that appending the
word “ `Company' ” to the generic name for a class of goods
does not yield a protectable compound term. Id., at 602–
603. The addition of a corporate designation, we explained,
“only indicates that parties have formed an association or

568 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Breyer, J., dissenting
partnership to deal in such goods.” Id., at 602. For in-
st
ance, “parties united to produce or sell wine, or to raise
cotton or grain,” may well “style themselves Wine Company,
Cotton Company, or Grain Company. ” Ib id. But they
would not thereby gain the right to exclude others from the
use of those terms “for the obvious reason that all persons
have a right to deal in such articles, and to publish the fact
to the world.” Id., at 603. “[I]ncorporation of a company
in the name of an article of commerce, without other specif-
cation,” we concluded, does not “create any exclusive right
to the use of the name.” Ibid.
I cannot agree with respondent that the 1946 Lanham Act
“repudiate[d] Goodyear and its ilk.” Brief for Respondent
39. It is true that the Lanham Act altered the common law
in certain important respects. Most signifcantly, it ex-
tended trademark protection to descriptive marks that have
acquired secondary meaning. See Qualitex Co. v. Jacobson
Products Co., 514 U. S. 159, 171 (1995). But it did not dis-
turb the basic principle that generic terms are ineligible for
trademark protection, and nothing in the Act suggests that
Congress intended to overturn Goodyear. We normally
assume that Congress did not overturn a common-law princi-
ple absent some indication to the contrary. See Astoria
Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991).
I can fnd no such indication here. Perhaps that is why
the lower courts, the Trademark Trial and Appeal Board
(TTAB), the U. S. Patent and Trademark Offce's (PTO)
Trademark Manua l of Exami ni ng Procedure (TMEP),
and leading treatises all recognize Goodyear's continued va-
lidity. See, e. g., In re Detroit Athletic Co., 903 F. 3d 1297,
1304 (CA Fed. 2018); In re Katch, LLC, 2019 WL 2560528,
*10 (TTAB 2019); TMEP § 1209.03(d) (Oct. 2018); 2 McCarthy
§ 12:39; 4 L. Altman & M. Pollack, Callmann on Unfair Com-
petition, Trademarks and Monopolies § 18:11 (4th ed. Supp.
2020).

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569
Breyer, J., dissenting
More fundamentally, the Goodyear principle is sound as a
matter
of law and logic. Goodyear recognized that designa-
tions such as “Company,” “Corp.,” and “Inc.” merely indicate
corporate form and therefore do nothing to distinguish one
frm's goods or services from all others'. 128 U. S., at 602.
It follows that the addition of such a corporate designation
does not “magically transform a generic name for a product
or service into a trademark, thereby giving a right to exclude
others.” 2 McCarthy § 12:39. In other words, where a
compound term consists simply of a generic term plus a cor-
porate designation, the whole is necessarily no greater than
the sum of its parts.
B
This case requires us to apply these principles in the novel
context of internet domain names. Respondent seeks to
register a term, “Booking.com,” that consists of a generic
term, “booking ” (known as the second-level domain) plus
“.com” (known as the top-level domain). The question at
issue here is whether a ter m that t akes the for m
“generic.com” is generic in the ordinary course. In my view,
appending “.com” to a generic term ordinarily yields no
meaning beyond that of its constituent parts. Because the
term “Booking.com” is just such an ordinary “generic.com”
term, in my view, it is not eligible for trademark registration.
Like the corporate designations at issue in Goodyear, a
top-level domain such as “.com” has no capacity to identify
and distinguish the source of goods or services. It is merely
a necessary component of any web address. See 1 McCar-
thy § 7:17.50. When combined with the generic name of a
class of goods or services, “.com” conveys only that the owner
operates a website related to such items. Just as “Wine
Company” expresses the generic concept of a company that
deals in wine, “wine.com” connotes only a website that does
the same. The same is true of “Booking.com.” The combi-
nation of “booking ” and “.com” does not serve to “identify a

570 P
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Breyer, J., dissenting
particular characteristic or quality of some thing; it connotes
th
e basic nature of that thing”—the hallmark of a generic
term. Blinded Veterans Assn. v. Blinded Am. Veterans
Foundation, 872 F. 2d 1035, 1039 (CADC 1989) (R. Ginsburg,
J., for the court) (emphasis added; internal quotation marks
omitted).
When a website uses an inherently distinctive second-level
domain, it is obvious that adding “.com” merely denotes a
website associated with that term. Any reasonably well-
informed consumer would understand that “post-it.com” is
the website associated w ith Post-its. See M inneso ta
Min. & Mfg. Co. v. Taylor, 21 F. Supp. 2d 1003, 1005 (Minn.
1998). Likewise, “plannedparenthood.com” is obviously just
the website of Planned Parenthood. See Planned Parent-
hood Federation of Am., Inc. v. Bucci, 1997 WL 133313, *8
(SDNY, Mar. 24, 1997). Recognizing this feature of domain
names, courts generally ignore the top-level domain when
analyzing likelihood of confusion. See Brookfeld Commu-
nications, Inc. v. West Coast Entertainment Corp., 174 F. 3d
1036, 1055 (CA9 1999).
Generic second-level domains are no different. The mean-
ing conveyed by “Booking.com” is no more and no less than
a website associated with its generic second-level domain,
“booking.” This will ordinarily be true of any generic term
plus “.com” combination. The term as a whole is just as
generic as its constituent parts. See 1 McCarthy § 7:17.50; 2
id., § 12:39.50.
There may be exceptions to this rule in rare cases where
the top-level domain interacts with the generic second-level
domain in such a way as to produce meaning distinct from
that of the terms taken individually. See ante, at 557, n. 4.
Likewise, the principles discussed above may apply differ-
ently to the newly expanded universe of top-level domains,
such as “.guru,” “.club,” or “.vip,” which may “conve[y] infor-
mation concerning a feature, quality, or characteristic” of the
website at issue. In re North Carolina Lottery, 866 F. 3d,

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as: 591 U. S. 549 (2020)
571
Breyer, J., dissenting
at 1367; see also Brief for International Trademark Associa-
ti
on as Amicus Curiae 10–11; TMEP § 1209.03(m). These
scenarios are not presented here, as “Booking.com” conveys
only a website associated with booking.
C
The majority believes that Goodyear is inapposite because
of the nature of the domain name system. Because only one
entity can hold the contractual rights to a particular domain
name at a time, it contends, consumers may infer that a
“generic.com” domain name refers to some specifc entity.
Ante, at 558–559.
That fact does not distinguish Goodyear. A generic term
may suggest that it is associated with a specifc entity. That
does not render it nongeneric. For example, “Wine, Inc.”
implies the existence of a specifc legal entity incorporated
under the laws of some State. Likewise, consumers may
perceive “The Wine Company” to refer to some specifc com-
pany rather than a genus of companies. But the addition of
the defnite article “the” obviously does not transform the
generic nature of that term. See In re The Computer Store,
Inc., 211 USPQ 72, 74–75 (TTAB 1981). True, these terms
do not carry the exclusivity of a domain name. But that
functional exclusivity does not negate the principle animat-
ing Goodyear: Terms that merely convey the nature of the
producer's business should remain free for all to use. See
128 U. S., at 603.
This case illustrates the diffculties inherent in the majori-
ty's fact-specifc approach. The lower courts determined (as
the majority highlights), that consumers do not use the term
“Booking.com” to refer to the class of hotel reservation
websites in ordinary speech. 915 F. 3d 171, 181–183 (CA4
2019); ante, at 557. True, few would call Travelocity a
“Booking.com.” Ibid. But literal use is not dispositive.
See 915 F. 3d, at 182; H. Marvin Ginn Corp. v. International
Assn. of Fire Chiefs, Inc., 782 F. 2d 987, 989–990 (CA Fed.

572 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Breyer, J., dissenting
1986). Consumers do not use the term “Wine, Incs.” to
refer
to purveyors of wine. Still, the term “Wine, Inc.” is
generic because it signifes only a company incorporated for
that purpose. See Goodyear, 128 U. S., at 602–603. Simi-
larly, “Booking, Inc.” may not be trademarked because it sig-
nifes only a booking company. The result should be no dif-
ferent for “Booking.com,” which signifes only a booking
website.
More than that, many of the facts that the Court supposes
may distinguish some “generic.com” marks as descriptive
and some as generic are unlikely to vary from case to case.
There will never be evidence that consumers literally refer
to the relevant class of online merchants as “generic.coms.”
Nor are “generic.com” terms likely to appear in dictionaries.
And the key fact that, in the majority's view, distinguishes
this case from Goodyear—that only one entity can own the
rights to a particular domain name at a time—is present in
every “generic.com” case. See ante, at 558–559.
What, then, stands in the way of automatic trademark eli-
gibility for every “generic.com” domain? Much of the time,
that determination will turn primarily on survey evidence,
just as it did in this case. See 915 F. 3d, at 183–184.
However, survey evidence has limited probative value in
this context. Consumer surveys often test whether con-
sumers associate a term with a single source. See 2 McCar-
thy §§ 12:14–12:16 (describing types of consumer surveys).
But it is possible for a generic term to achieve such an associ-
ation—either because that producer has enjoyed a period of
exclusivity in the marketplace, e. g., Kellogg Co. v. National
Biscuit Co., 305 U. S. 111, 118–119 (1938), or because it has
invested money and effort in securing the public's identifca-
tion, e. g., Abercrombie, 537 F. 2d, at 9. Evidence of such an
association, no matter how strong, does not negate the ge-
neric nature of the term. Ibid. For that reason, some
courts and the TTAB have concluded that survey evidence is
generally of little value in separating generic from descrip-

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as: 591 U. S. 549 (2020)
573
Breyer, J., dissenting
tive terms. See Schwan's IP, LLC v. Kraft Pizza Co., 460
F
. 3d 971, 975–976 (CA8 2006); Hunt Masters, Inc. v. Lan-
dry's Seafood Restaurant, Inc., 240 F. 3d 251, 254–255 (CA4
2001); A. J. Canfeld Co. v. Honickman, 808 F. 2d 291, 301–
303 (CA3 1986); Miller Brewing Co. v. Jos. Schlitz Brewing
Co., 605 F. 2d 990, 995 (CA7 1979); In re Hikari Sales USA,
Inc., 2019 WL 1453259, *13 (TTAB, Mar. 29, 2019). Al-
though this is the minority viewpoint, see 2 McCarthy
§ 12:17.25, I nonetheless fnd it to be the more persuasive one.
Consider the survey evidence that respondent introduced
below. Respondent's survey showed that 74.8% of partici-
pants thought that “Booking.com” is a brand name, whereas
23.8% believed it was a generic name. App. 66. At the
same time, 33% believed that “Washingmachine.com”—
which does not correspond to any company—is a brand, and
60.8% thought it was generic. Ibid.
W hat cou ld possibly account for that di fference?
“Booking.com” is not inherently more descriptive than
“Washingmachine.com” or any other “generic.com.” The
survey participants who identifed “Booking.com” as a brand
likely did so because they had heard of it, through advertis-
ing or otherwise. If someone were to start a company
called “Washingmachine.com,” it could likely secure a similar
level of consumer identifcation by investing heavily in
advertising. Would that somehow transform the nature of
the ter m itself ? Surely not. This hypothetica l shows
that respondent's survey tested consumers' association of
“Booking.com” with a particular company, not anything
about the term itself. But such association does not estab-
lish that a term is nongeneric. See Kellogg, 305 U. S., at
118–119; Abercrombie, 537 F. 2d, at 9.
Under the majority's approach, a “generic.com” mark's eli-
gibility for trademark protection turns primarily on survey
data, which, as I have explained, may be an unreliable indica-
tor of genericness. As the leading treatise writer in this
feld has observed, this approach “[d]iscard[s] the predictable

574 P
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Breyer, J., dissenting
and clear line rule of the [PTO] and the Federal Circuit” in
favor
of “a nebulous and unpredictable zone of generic name
and top level domain combinations that somehow become
protectable marks when accompanied by favorable survey
results.” 1 McCarthy § 7:17.50. I would heed this criti-
cism. In my view, a term that takes the form “generic.com”
is not eligible for federal trademark registration, at least not
ordinarily. There being no special circumstance here, I be-
lieve that “Booking.com” is a generic term not eligible for
federal registration as a trademark.
II
In addition to the doctrinal concerns discussed above,
granting trademark protecti on to “gener ic.com” marks
threatens serious anticompetitive consequences in the on-
line marketplace.
The owners of short, generic domain names enjoy all the
advantages of doing business under a generic name. These
advantages exist irrespective of the trademark laws. Ge-
neric names are easy to remember. Because they immedi-
ately convey the nature of the business, the owner needs to
expend less effort and expense educating consumers. See
Meystedt, What Is My URL Worth? Placing a Value on Pre-
mium Domain Names, 19 Valuation Strategies 10, 12 (2015)
(Meystedt) (noting “ability to advertise a single URL and
convey exactly what business a company operates”); cf. Fol-
som & Teply, Trademarked Generic Words, 89 Yale L. J. 1323,
1337–1338 (1980) (Folsom & Teply) (noting “ `free advertising '
effect”). And a generic business name may create the im-
pression that it is the most authoritative and trustworthy
source of the particular good or service. See Meystedt 12
(noting that generic domain names inspire “[i]nstant trust
and credibility” and “[a]uthority status in an industry”); cf.
Folsom & Teply 1337, n. 79 (noting that consumers may be-
lieve that “no other product is the `real thing ' ”). These ad-

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as: 591 U. S. 549 (2020)
575
Breyer, J., dissenting
vantages make it harder for distinctively named businesses
to
compete.
Owners of generic domain names enjoy additional competi-
tive advantages unique to the internet—again, regardless of
trademark protection. Most importantly, domain name
ownership confers automatic exclusivity. Multiple brick-
and-mortar companies could style themselves “The Wine
Company,” but there can be only one “wine.com.” And un-
like the trademark system, that exclusivity is worldwide.
Generic domains are also easier for consumers to fnd. A
consumer who wants to buy wine online may perform a key-
word search and be directed to “wine.com.” Or he may sim-
ply type “wine.com” into his browser's address bar, expect-
ing to fnd a website selling wine. See Meystedt 12 (noting
“ability to rank higher on search engines” and “ability to use
existing type-in traffc to generate additional sales”); see also
915 F. 3d, at 189 (Wynn, J., concurring in part and dissenting
in part). The owner of a generic domain name enjoys these
benefts not because of the quality of her products or the
goodwill of her business, but because she was fortunate (or
savvy) enough to be the frst to appropriate a particularly
valuable piece of online real estate.
Granting trademark protection to “generic.com” marks
confers additional competitive benefts on their owners by
allowing them to exclude others from using similar do-
main names. Federal registration would allow respondent
to threaten trademark lawsuits agai nst competitors
using domains such as “Bookings.com, ” “eBooking.com, ”
“Booker.com,” or “Bookit.com.” Respondent says that it
would not do so. See Tr. of Oral Arg. 55–56. But other
frms may prove less restrained.
Indeed, why would a frm want to register its domain
name as a trademark unless it wished to extend its area of
exclusivity beyond the domain name itself ? The domain
name system, after all, already ensures that competitors can-

576 P
ATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V.
Breyer, J., dissenting
not appropriate a business' actual domain name. And
unfair-competiti
on law will often separately protect busi-
nesses from passing off and false advertising. See Genesee
Brewing Co. v. Stroh Brewing Co., 124 F. 3d 137, 149 (CA2
1997); 2 McCarthy § 12:2.
Under the majority's reasoning, many businesses could ob-
tain a trademark by adding “.com” to the generic name of
their product (e. g., pizza.com, fowers.com, and so forth). As
the internet grows larger, as more and more frms use it to
sell their products, the risk of anticompetitive consequences
grows. Those consequences can nudge the economy in an
anticompetitive direction. At the extreme, that direction
points toward one frm per product, the opposite of the com-
petitive multifrm marketplace that our basic economic laws
seek to achieve.
Not to worry, the Court responds, infringement doctrines
such as likelihood of confusion and fair use will restrict
the scope of protection afforded to “generic.com” marks.
Ante, at 561–563. This response will be cold comfort to
competitors of “gener ic.com” brands. Owners of such
marks may seek to extend the boundaries of their marks
through litigation, and may, at times, succeed. See, e. g.,
Advertise.com v. AOL, LLC, 2010 WL 11507594 (CD Cal.)
(owner of “Advertising.com” obtained preliminary injunction
against competitor's use of “Advertise.com”), vacated in part,
616 F. 3d 974 (CA9 2010). Even if ultimately unsuccessful,
the threat of costly litigation will no doubt chill others from
using variants on the registered mark and privilege estab-
lished frms over new entrants to the market. See Brief for
Electronic Frontier Foundation as Amicus Curiae 19–20.
***
In sum, the term “Booking.com” refers to an internet
booking service, which is the generic product that respond-
ent and its competitors sell. No more and no less. The

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577
Breyer, J., dissenting
same is true of “generic.com” terms more generally. By
mak
ing such terms eligible for trademark protection, I fear
that today's decisi on w i l l lead to a prol i ferati on of
“generic.com” marks, granting their owners a monopoly over
a zone of useful, easy-to-remember domains. This result
would tend to inhibit, rather than to promote, free competi-
tion in online commerce. I respectfully dissent.

578 OCTOBER
TERM, 2019
Syllabus
CHIAFALO et al. v. WASHINGTON
certiorari
to the supreme court of washington
No. 19–465. Argued May 13, 2020—Decided July 6, 2020
When Americans cast ballots for presidential candidates, their votes actu-
ally go toward selecting members of the Electoral College, whom each
State appoints based on the popular returns. The States have devised
mechanisms to ensure that the electors they appoint vote for the presi-
dential candidate their citizens have preferred. With two partial excep-
tions, every State appoints a slate of electors selected by the political
party whose candidate has won the State's popular vote. Most States
also compel electors to pledge to support the nominee of that party.
Relevant here, 15 States back up their pledge laws with some kind of
sanction. Almost all of these States immediately remove a so-called
“faithless elector” from his position, substituting an alternate whose
vote the State reports instead. A few States impose a monetary fne
on any elector who fouts his pledge.
Three Washington electors, Peter Chiafalo, Levi Guerra, and Esther
John (the Electors), violated their pledges to support Hillary Clinton in
the 2016 presidential election. In response, the State fned the Electors
$1,000 apiece for breaking their pledges to support the same candidate
its voters had. The Electors challenged their fnes in state court, ar-
guing that the Constitution gives members of the Electoral College the
right to vote however they please. The Washington Superior Court
rejected that claim, and the State Supreme Court affrmed, relying on
Ray v. Blair, 343 U. S. 214. In Ray, this Court upheld a pledge require-
ment—though one without a penalty to back it up. Ray held that
pledges were consistent with the Constitution's text and our Nation's
history, id., at 225–230; but it reserved the question whether a State can
enforce that requirement through legal sanctions.
Held: A State may enforce an elector's pledge to support his party's
nominee—and the state voters' choice—for President. Pp. 587–597.
(a) Article II, § 1 gives the States the authority to appoint electors
“in such Manner as the Legislature thereof may direct.” This Court
has described that clause as “conveying the broadest power of determi-
nation” over who becomes an elector. McPherson v. Blacker, 146 U. S.
1, 27. And the power to appoint an elector (in any manner) includes
power to condition his appointment, absent some other constitutional
constraint. A State can require, for example, that an elector live in the
State or qualify as a regular voter during the relevant time period. Or

Cite
as: 591 U. S. 578 (2020)
579
Syllabus
more substantively, a State can insist (as Ray allowed) that the elector
pledge
to cast his Electoral College ballot for his party's presidential
nominee, thus tracking the State's popular vote. Or—so long as noth-
ing else in the Constitution poses an obstacle—a State can add an associ-
ated condition of appointment: It can demand that the elector actually
live up to his pledge, on pain of penalty. Which is to say that the State's
appointment power, barring some outside constraint, enables the en-
forcement of a pledge like Washington's.
Nothing in the Constitution expressly prohibits States from taking
away presidential electors' voting discretion as Washington does. Arti-
cle II includes only the instruction to each State to appoint electors, and
the Twelfth Amendment only sets out the electors' voting procedures.
And while two contemporaneous State Constitutions incorporated lan-
guage calling for the exercise of elector discretion, no language of that
kind made it into the Federal Constitution. Contrary to the Electors'
argument, Article II's use of the term “electors” and the Twelfth
Amendment's requirement that the electors “vote,” and that they do so
“by ballot,” do not establish that electors must have discretion. The
Electors and their amici object that the Framers using those words
expected the Electors' votes to refect their own judgments. But even
assuming that outlook was widely shared, it would not be enough.
Whether by choice or accident, the Framers did not reduce their
thoughts about electors' discretion to the printed page. Pp. 588–592.
(b) “Long settled and established practice” may have “great weight
in a proper interpretation of constitutional provisions.” The Pocket
Veto Case, 279 U. S. 655, 689. The Electors make an appeal to that
kind of practice in asserting their right to independence, but “our whole
experience as a Nation” points in the opposite direction. NLRB v. Noel
Canning, 573 U. S. 513, 557. From the frst elections under the Consti-
tution, States sent electors to the College to vote for pre-selected candi-
dates, rather than to use their own judgment. The electors rapidly
settled into that non-discretionary role. See Ray, 343 U. S., at 228–229.
Ratifed at the start of the 19th century, the Twelfth Amendment both
acknowledged and facilitated the Electoral College's emergence as a
mechanism not for deliberation but for party-line voting. Courts and
commentators throughout that century recognized the presidential elec-
tors as merely acting on other people's preferences. And state election
laws evolved to reinforce that development, ensuring that a State's elec-
tors would vote the same way as its citizens. Washington's law is only
another in the same vein. It refects a longstanding tradition in which
electors are not free agents; they are to vote for the candidate whom
the State's voters have chosen. Pp. 592–597.

580 CHIAF
ALO v. WASHINGTON
Syllabus
193 Wash. 2d 380, 441 P. 3d 807, affrmed.
K
agan, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Ginsburg, Breyer, Alito, Sotomayor, Gorsuch, and Kavanaugh,
JJ., joined. Thomas, J., fled an opinion concurring in the judgment, in
which Gorsuch, J., joined as to Part II, post, p. 597.
L. Lawrence Lessig argued the cause for petitioners.
With him on the briefs were Jason Harrow, Sumeer Singla,
Daniel A. Brown, Hunter M. Abell, Jonah O. Harrison, J.
Max Rosen, and Jason B. Wesoky.
Noah G. Purcell, Solicitor General of Washington, argued
the cause for respondent. With him on the brief were Rob-
ert W. Ferguson, Attorney General of Washington, Tera
Heintz and Alan D. Copsey, Deputy Solicitors General, and
Cristina Sepe, Assistant Attorney General.*
*Briefs of amici curiae urging reversal were fled for the Independence
Institute by David B. Kopel and Joseph G. S. Greenlee; for Jerry H. Gold-
feder by Mr. Goldfeder, pro se; and for Michael L. Rosin et al. by Peter K.
Stris, Michael N. Donofrio, and Bridget C. Asay.
Briefs of amici curiae urging affrmance were fled for the State of
South Dakota et al. by Jason R. Ravnsborg, Attorney General of South
Dakota, and Paul S. Swedlund, Assistant Attorney General, and by the
Attorneys General for their respective jurisdictions as follows: Steve Mar-
shall of Alabama, Kevin G. Clarkson of Alaska, Mark Brnovich of Ari-
zona, Xavier Becerra of California, William Tong of Connecticut, Kathy
Jennings of Delaware, Karl A. Racine of the District of Columbia, Ashley
Moody of Florida, Christopher M. Carr of Georgia, Clare E. Connors of
Hawaii, Lawrence Wasden of Idaho, Kwame Raoul of Illinois, Curtis T.
Hill, Jr., of Indiana, Tom Miller of Iowa, Daniel Cameron of Kentucky,
Jeff Landry of Louisiana, Aaron M. Frey of Maine, Brian E. Frosh of
Maryland, Maura Healey of Massachusetts, Dana Nessel of Michigan,
Keith Ellison of Minnesota, Lynn Fitch of Mississippi, Eric S. Schmitt of
Missouri, Timothy C. Fox of Montana, Doug J. Peterson of Nebraska,
Aaron D. Ford of Nevada, Gordon MacDonald of New Hampshire, Gurbir
S. Grewal of New Jersey, Hector Balderas of New Mexico, Letitia James
of New York, Josh Stein of North Carolina, Wayne Steneh jem of North
Dakota, Dave Yost of Ohio, Mike Hunter of Oklahoma, Ellen Rosenblum
of Oregon, Josh D. Shapiro of Pennsylvania, Peter F. Neronha of Rhode
Island, Alan Wilson of South Carolina, Herbert H. Slatery III of Tennes-
see, Sean D. Reyes of Utah, Thomas J. Donovan of Vermont, Mark R. Her-

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as: 591 U. S. 578 (2020)
581
Opinion of the Court
Justice Kagan delivered the opinion of the Court.
E
very four years, millions of Americans cast a ballot for
a presidential candidate. Their votes, though, actually go
toward selecting members of the Electoral College, whom
each State appoints based on the popular returns. Those
few “electors” then choose the President.
The States have devised mechanisms to ensure that the
electors they appoint vote for the presidential candidate
their citizens have preferred. With two partial exceptions,
every State appoints a slate of electors selected by the politi-
cal party whose candidate has won the State's popular vote.
Most States also compel electors to pledge in advance to sup-
port the nominee of that party. This Court upheld such a
pledge requirement decades ago, rejecting the argument
that the Constitution “demands absolute freedom for the
elector to vote his own choice.” Ray v. Blair, 343 U. S. 214,
228 (1952).
Today, we consider whether a State may also penalize an
elector for breaking his pledge and voting for someone other
than the presidential candidate who won his State's popular
vote. We hold that a State may do so.
I
Our Constitution's method of picking Presidents emerged
from an eleventh-hour compromise. The issue, one delegate
ring of Virginia, Patrick Morrisey of West Virginia, Josh L. Kaul of Wis-
consin, and Bridget Hill of Wyoming; for the Campaign Legal Center et al.
by Tobias S. Loss-Eaton, Paul M. Smith, Adav Noti, and David Kolker;
for Public Citizen by Scott L. Nelson and Allison M. Zieve; for the Repub-
lican National Committee by Michael E. Toner, Lee E. Goodman, and Ste-
phen J. Obermeier; for Robert W. Bennett by J. Samuel Tenenbaum, Jef-
frey T. Green, and Sarah O'Rourke Schrup; and for Michael T. Morley by
Mr. Morley, pro se.
Briefs of amici curiae were fled for Citizens for Self-Governance by
Rita M. Dunaway; for the Making Every Vote Count Foundation by Jer-
rold J. Ganzfried, Reed E. Hundt, and Thea A. Cohen; for Edward B.
Foley by Jessica Ring Amunson and Zachary C. Schauf; for Vinz Koller
by Andrew J. Dhuey; and for Derek T. Muller by Ian Speir.

582 CHIAF
ALO v. WASHINGTON
Opinion of the Court
to the Convention remarked, was “the most diffcult of all
[
that] we have had to decide.” 2 Records of the Federal
Convention of 1787, p. 501 (M. Farrand rev. 1966) (Farrand).
Despite long debate and many votes, the delegates could not
reach an agreement. See generally N. Peirce & L. Longley,
The People's President 19–22 (rev. 1981). In the dying days
of summer, they referred the matter to the so-called Com-
mittee of Eleven to devise a solution. The Committee re-
turned with a proposal for the Electoral College. Just two
days later, the delegates accepted the recommendation with
but a few tweaks. James Madison later wrote to a friend
that the “diffculty of fnding an unexceptionable [selection]
process” was “deeply felt by the Convention.” Letter to G.
Hay (Aug. 23, 1823), in 3 Farrand 458. Because “the fnal
arrangement of it took place in the latter stage of the Ses-
sion,” Madison continued, “it was not exempt from a degree
of the hurrying infuence produced by fatigue and impatience
in all such Bodies: tho' the degree was much less than usually
prevails in them.” Ibid. Whether less or not, the dele-
gates soon fnished their work and departed for home.
The provision they approved about presidential electors is
fairly slim. Article II, § 1, cl. 2 says:
“Each State shall appoint, in such Manner as the Legis-
lature thereof may direct, a Number of Electors, equal
to the whole Number of Senators and Representatives
to which the State may be entitled in the Congress: but
no Senator or Representative, or Person holding an Of-
fce of Trust or Proft under the United States, shall be
appointed an Elector.”
The next clause (but don't get attached: it will soon be super-
seded) set out the procedures the electors were to follow in
casting their votes. In brief, each member of the College
would cast votes for two candidates in the presidential feld.
The candidate with the greatest number of votes, assuming
he had a majority, would become President. The runner-up

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as: 591 U. S. 578 (2020)
583
Opinion of the Court
would become Vice President. If no one had a majority, the
H
ouse of Representatives would take over and decide the
winner.
That plan failed to anticipate the rise of political parties,
and soon proved unworkable. The Nation's frst contested
presidential election occurred in 1796, after George Washing-
ton's retirement. John Adams came in frst among the can-
didates, and Thomas Jefferson second. That meant the lead-
ers of the era's two warring political parties—the Federalists
and the Republicans—became President and Vice President
respectively. (One might think of this as fodder for a new
season of Veep.) Four years later, a different problem arose.
Jefferson and Aaron Burr ran that year as a Republican
Party ticket, with the former meant to be President and the
latter meant to be Vice. For that plan to succeed, Jefferson
had to come in frst and Burr just behind him. Instead, Jef-
ferson came in frst and Burr . . . did too. Every elector who
voted for Jefferson also voted for Burr, producing a tie.
That threw the election into the House of Representatives,
which took no fewer than 36 ballots to elect Jefferson. (Al-
exander Hami lton secured h is place on the Broadway
stage—but possibly in the cemetery too—by lobbying Feder-
alists in the House to tip the election to Jefferson, whom he
loathed but viewed as less of an existential threat to the
Republic.) By then, everyone had had enough of the Elec-
toral College's original voting rules.
The result was the Twelfth Amendment, whose main part
provided that electors would vote separately for President
and Vice President. The Amendment, ratifed in 1804, says:
“The Electors shall meet in their respective states and
vote by ballot for President and Vice-President . . . ; they
shall name in their ballots the person voted for as Presi-
dent, and in distinct ballots the person voted for as Vice-
President, and they shall make distinct lists of all per-
sons voted for as President, and of all persons voted for
as Vice-President, and of the number of votes for each,

584 CHIAF
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Opinion of the Court
which lists they shall sign and certify, and transmit
sea
led to [Congress, where] the votes shall then be
counted.”
The Amendment thus brought the Electoral College's voting
procedures into line with the Nation's new party system.
Within a few decades, the party system also became the
means of translating popular preferences within each State
into Electoral College ballots. In the Nation's earliest elec-
tions, state legislatures mostly picked the electors, with the
majority party sending a delegation of its choice to the Elec-
toral College. By 1832, though, all States but one had intro-
duced popular presidential elections. See Peirce & Longley,
The People's President, at 45. At frst, citizens voted for a
slate of electors put forward by a political party, expecting
that the winning slate would vote for its party's presidential
(and vice presidential) nominee in the Electoral College. By
the early 20th century, citizens in most States voted for the
presidential candidate himself; ballots increasingly did not
even list the electors. See Albright, The Presidential Short
Ballot, 34 Am. Pol. Sci. Rev. 955, 955–957 (1940). After the
popular vote was counted, States appointed the electors cho-
sen by the party whose presidential nominee had won state-
wide, again expecting that they would vote for that candi-
date in the Electoral College.
1
In the 20th century, many States enacted statutes meant
to guarantee that outcome—that is, to prohibit so-called
1
Maine and Nebraska (which, for simplicity's sake, we will ignore after
this footnote) developed a more complicated system in which two electors
go to the winner of the statewide vote and one goes to the winner of each
congressional district. See Me. Rev. Stat. Ann., Tit. 21–A, § 802 (2006);
Neb. Rev. Stat. § 32–710 (2016). So, for example, if the Republican candi-
date wins the popular vote in Nebraska as a whole but loses to the Demo-
cratic candidate in one of the State's three congressional districts, the
Republican will get four electors and the Democrat will get one. Here
too, though, the States use party slates to pick the electors, in order to
refect the relevant popular preferences (whether in the State or in an
individual district).

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585
Opinion of the Court
faithless voting. Rather than just assume that party-picked
elec
tors would vote for their party's winning nominee, those
States insist that they do so. As of now, 32 States and the
District of Columbia have such statutes on their books.
They are typically called pledge laws because most demand
that electors take a formal oath or pledge to cast their ballot
for their party's presidential (and vice presidential) candi-
date. Others merely impose that duty by law. Either way,
the statutes work to ensure that the electors vote for the
candidate who got the most statewide votes in the presiden-
tial election.
Most relevant here, States began about 60 years ago to
back up their pledge laws with some kind of sanction. By
now, 15 States have such a system.
2
Almost all of them im-
mediately remove a faithless elector from his position, sub-
stituting an alternate whose vote the State reports instead.
A few States impose a monetary fne on any elector who
fouts his pledge.
Washington is one of the 15 States with a sanctions-backed
pledge law designed to keep the State's electors in line with
its voting citizens. As all States now do, Washington
requires political parties felding presidential candidates
to nominate a slate of electors. See Wash. Rev. Code
§ 29A.56.320(1). On Election Day, the State gives voters
a ba l lot l isti ng only the candidates themselves. See
29A.56.320(2). W hen the vote comes i n, Wash i ng ton
moves toward appointing the electors chosen by the party
whose candidate won the statewide count. See ibid. But
2
Ariz. Rev. Stat. Ann. § 16–212 (2019 Cum. Supp.); Cal. Elec. Code Ann.
§§ 6906, 18002 (West 2019); Colo. Rev. Stat. § 1–4–304 (2019); Ind. Code
§ 3–10–4–9 (2019); Mich. Comp. Laws § 168.47 (2008); Minn. Stat. §§ 208.43,
208.46 (2020 Cum. Supp.); Mont. Code Ann. §§ 13–25–304, 13–25–307
(2019); Neb. Rev. Stat. §§ 32–713, 32–714; Nev. Rev. Stat. §§ 298.045,
298.075 (2017); N. M. Stat. Ann. § 1–15–9 (Supp. 2011); N. C. Gen. Stat.
Ann. § 163–212 (2019); Okla. Stat., Tit. 26, §§ 10–102, 10–109 (2019); S. C.
Code Ann. § 7–19–80 (2018); Utah Code § 20A–13–304 (2020); Wash. Rev.
Code §§ 29A.56.084, 29A.56.090 (2019).

586 CHIAF
ALO v. WASHINGTON
Opinion of the Court
before the appointment can go into effect, each elector must
“execute
[a] pledge” agreeing to “mark [her] ballots” for the
presidential (and vice presidential) candidate of the party
nominating her. § 29A.56.084. And the elector must com-
ply with that pledge, or else face a sanction. At the time
relevant here, the punishment was a civil fne of up to $1,000.
See § 29A.56.340 (2016).
3
This case involves three Washington electors who violated
their pledges in the 2016 presidential election. That year,
Washington's voters chose Hillary Clinton over Donald
Trump for President. The State thus appointed as its elec-
tors the nominees of the Washington State Democratic Party.
Among those Democratic electors were petitioners Peter
Chiafalo, Levi Guerra, and Esther John (the Electors). All
three pledged to support Hillary Clinton in the Electoral
College. But as that vote approached, they decided to cast
their ballots for someone else. The three hoped they could
encourage other electors—particularly those from States
Donald Trump had carried—to follow their example. The
idea was to deprive him of a majority of electoral votes and
throw the election into the House of Representatives. So
the three Electors voted for Colin Powell for President.
But their effort failed. Only seven electors across the Na-
tion cast faithless votes—the most in a century, but well
short of the goal. Candidate Trump became President
Trump. And, more to the point here, the State fned the
Electors $1,000 apiece for breaking their pledges to support
the same candidate its voters had.
The Electors challenged their fnes in state court, arguing
that the Constitution gives members of the Electoral College
the right to vote however they please. The Washington Su-
perior Court rejected the Electors' claim in an oral decision,
and the State's Supreme Court affrmed that judgment. See
3
Since the events in this case, Washington has repealed the fne. It
now enforces pledges only by removing and replacing faithless electors.
See Wash. Rev. Code § 29A.56.090(3) (2019).

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587
Opinion of the Court
In re Guerra, 193 Wash. 2d 380, 441 P. 3d 807 (2019). The
cour
t relied heavily on our decision in Ray v. Blair upholding
a pledge requirement—though one without a penalty to back
it up. See 193 Wash. 2d, at 393–399, 441 P. 3d, at 813–816.
In the state court's view, Washington's penalty provision
made no difference. Article II of the Constitution, the court
noted, grants broad authority to the States to appoint elec-
tors, and so to impose conditions on their appointments.
See id., at 393, 395, 441 P. 3d, at 813, 814. And nothing in
the document “suggests that electors have discretion to cast
their votes without limitation or restriction by the state leg-
islature.” Id., at 396, 441 P. 3d, at 814.
A few months later, the United States Court of Appeals
for the Tenth Circuit reached the opposite conclusion in a
case involving another faithless elector. See Baca v. Colo-
rado Dept. of State, 935 F. 3d 887 (2019). The Circuit Court
held that Colorado could not remove the elector, as its pledge
law directs, because the Constitution “provide[s] presidential
electors the right to cast a vote” for President “with discre-
tion.” Id., at 955.
We granted certiorari to resolve the split. 589 U. S. 1165
(2020). We now affrm the Washington Supreme Court's
judgment that a State may enforce its pledge law against
an elector.
II
As the state court recognized, this Court has considered
elector pledge requirements before. Some seventy years
ago Edmund Blair tried to become a presidential elector in
Alabama. Like all States, Alabama lodged the authority to
pick electors in the political parties felding presidential can-
didates. And the Alabama Democratic Party required a
pledge phrased much like Washington's today. No one could
get on the party's slate of electors without agreeing to vote
in the Electoral College for the Democratic presidential can-
didate. Blair challenged the pledge mandate. He argued
that the “intention of the Founders was that [presidential]

588 CHIAF
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Opinion of the Court
electors should exercise their judgment in voting.” Ray,
343
U. S., at 225. The pledge requirement, he claimed, “in-
terfere[d] with the performance of this constitutional duty to
select [a president] according to the best judgment of the
elector.” Ibid.
Our decision in Ray rejected that challenge. “Neither the
language of Art. II, § 1, nor that of the Twelfth Amendment,”
we explained, prohibits a State from appointing only electors
committed to vote for a party's presidential candidate. Ibid.
Nor did the Nation's history suggest such a bar. To the con-
trary, “[h]istory teaches that the electors were expected
to support the party nominees” as far back as the earliest
contested presidential elections. Id., at 228. “[L]ongstand-
ing practice” thus “weigh[ed] heavily” against Blair's claim.
Id., at 228–230. And current voting procedures did too.
The Court noted that by then many States did not even
put electors' names on a presidential ballot. See id., at
229. The whole system presupposed that the electors, be-
cause of either an “implied” or an “oral pledge,” would vote
for the candidate who had won the State's popular election.
Ibid.
Ray, however, reserved a question not implicated in the
case: Could a State enforce those pledges through legal sanc-
tions? See id., at 230. Or would doing so violate an elec-
tor's “constitutional freedom” to “vote as he may choose” in
the Electoral College? Ibid. Today, we take up that ques-
tion. We uphold Washington's penalty-backed pledge law
for reasons much like those given in Ray. The Constitu-
tion's text and the Nation's history both support allowing a
State to enforce an elector's pledge to support his party's
nominee—and the state voters' choice—for President.
A
Article II, § 1's appointments power gives the States far-
reaching authority over presidential electors, absent some

Cite
as: 591 U. S. 578 (2020)
589
Opinion of the Court
other constitutional constraint.
4
As
noted earlier, each
State may appoint electors “in such Manner as the Legisla-
ture thereof may direct.” Art. II, § 1, cl. 2; see supra, at
582. This Court has described that clause as “conveying the
broadest power of determination” over who becomes an elec-
tor. McPherson v. Blacker, 146 U. S. 1, 27 (1892).
5
And the
power to appoint an elector (in any manner) includes power
to condition his appointment—that is, to say what the elector
must do for the appointment to take effect. A State can
require, for example, that an elector live in the State or qual-
ify as a regular voter during the relevant time period. Or
more substantively, a State can insist (as Ray allowed) that
the elector pledge to cast his Electoral College ballot for his
party's presidential nominee, thus tracking the State's popu-
lar vote. See Ray, 343 U. S., at 227 (A pledge requirement
“is an exercise of the state's right to appoint electors in such
manner” as it chooses). Or—so long as nothing else in the
Constitution poses an obstacle—a State can add, as Washing-
ton did, an associated condition of appointment: It can de-
mand that the elector actually live up to his pledge, on pain
of penalty. Which is to say that the State's appointment
power, barring some outside constraint, enables the enforce-
ment of a pledge like Washington's.
6
4
Checks on a State's power to appoint electors, or to impose conditions
on an appointment, can theoretically come from anywhere in the Constitu-
tion. A State, for example, cannot select its electors in a way that vio-
lates the Equal Protection Clause. And if a State adopts a condition on
its appointments that effectively imposes new requirements on presiden-
tial candidates, the condition may confict with the Presidential Qualifca-
tions Clause, see Art. II, § 1, cl. 5.
5
See also U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 805 (1995)
(describing Article II, § 1 as an “express delegation[ ] of power to the
States”); but see post, at 597–598 (Thomas, J., concurring in judgment)
(continuing to press the view, taken in the Thornton dissent, that Article
II, § 1 grants the States no power at all).
6
The concurring opinion would have us make fne distinctions among
state laws punishing faithless voting—treating some as conditions of ap-

590 CHIAF
ALO v. WASHINGTON
Opinion of the Court
And nothing in the Constitution expressly prohibits States
from
taking away presidential electors' voting discretion as
Washington does. The Constitution is barebones about elec-
tors. Article II includes only the instruction to each State
to appoint, in whatever way it likes, as many electors as it
has Senators and Representatives (except that the State may
not appoint members of the Federal Government). The
Twelfth Amendment then tells electors to meet in their
States, to vote for President and Vice President separately,
and to transmit lists of all their votes to the President of
the United States Senate for counting. Appointments and
procedures and . . . that is all. See id., at 225.
The Framers could have done it differently; other constitu-
tional drafters of their time did. In the founding era, two
States—Maryland and Kentucky—used electoral bodies se-
lected by voters to choose state senators (and in Kentucky's
case, the Governor too). The Constitutions of both States,
Maryland's drafted just before and Kentucky's just after the
U. S. Constitution, incorporated language that would have
made this case look quite different. Both State Constitu-
tions required all electors to take an oath “to elect without
favour, affection, partiality, or prejudice, such persons for
Senators, as they, in their judgment and conscience, believe
best qualifed for the offce.” Md. Declaration of Rights,
Art. XVIII (1776); see Ky. Const., Art. I, § 14 (1792) (using
identical language except adding “[and] for Governor”).
The emphasis on independent “judgment and conscience”
called for the exercise of elector discretion. But although
pointment and others not, depending on small semantic differences. See
post, at 602–605 (distinguishing, for example, between Oklahoma's law fn-
ing an elector for violating his oath (to vote for his party's candidate) and
Washington's law fning an elector for not voting for his party's candidate
(whom he took an oath to support)). The Electors themselves raised no
such argument, and they were right not to do so. No matter the precise
phrasing, a law penalizing faithless voting (like a law merely barring that
practice) is an exercise of the State's power to impose conditions on the
appointment of electors. See Ray v. Blair, 343 U. S. 214, 227 (1952).

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591
Opinion of the Court
the Framers knew of Maryland's Constitution, no language
of
that kind made it into the document they drafted. See 1
Farrand 218, 289 (showing that Madison and Hamilton re-
ferred to the Maryland system at the Convention).
The Electors argue that three simple words stand in for
more explicit language about discretion. Article II, § 1 frst
names the members of the Electoral College: “electors.”
The Twelfth Amendment then says that electors shall “vote”
and that they shall do so by “ballot.” The “plain meaning ”
of those terms, the Electors say, requires electors to have
“freedom of choice.” Brief for Petitioners 29, 31. If the
States could control their votes, “the electors would not be
`Electors,' and their `vote by Ballot' would not be a `vote.' ”
Id., at 31.
But those words need not always connote independent
choice. Suppose a person always votes in the way his
spouse, or pastor, or union tells him to. We might question
his judgment, but we would have no problem saying that he
“votes” or flls in a “ballot.” In those cases, the choice is in
someone else's hands, but the words still apply because they
can signify a mechanical act. Or similarly, suppose in a sys-
tem allowing proxy voting (a common practice in the found-
ing era), the proxy acts on clear instructions from the princi-
pal, with no freedom of choice. Still, we might well say that
he cast a “ballot” or “voted,” though the preference regis-
tered was not his own. For that matter, some elections give
the voter no real choice because there is only one name on a
ballot (consider an old Soviet election, or even a down-ballot
race in this country). Yet if the person in the voting booth
goes through the motions, we consider him to have voted.
The point of all these examples is to show that although vot-
ing and discretion are usually combined, voting is still voting
when discretion departs. Maybe most telling, switch from
hypotheticals to the members of the Electoral College. For
centuries now, as we'll later show, almost all have considered
themselves bound to vote for their party's (and the state vot-

592 CHIAF
ALO v. WASHINGTON
Opinion of the Court
ers') preference. See infra this page and 593–597. Yet
there
is no better description for what they do in the Elec-
toral College than “vote” by “ballot.” And all these years
later, everyone still calls them “electors”—and not wrongly,
because even though they vote without discretion, they do
indeed elect a President.
The Electors and their amici object that the Framers
using those words expected the Electors' votes to refect
their own judgments. See Brief for Petitioners 18–19; Brief
for Independence Institute as Amicus Curiae 11–15. Ham-
ilton praised the Constitution for entrusting the Presidency
to “men most capable of analyzing the qualities” needed
for the offce, who would make their choices “under cir-
cumstances favorable to deliberation. ” The Federa list
No. 68, p. 410 (C. Rossiter ed. 1961). So too, John Jay pre-
dicted that the Electoral College would “be composed of the
most enlightened and respectable citizens,” whose choices
would refect “discretion and discernment.” Id., No. 64,
at 389.
But even assuming other Framers shared that outlook, it
would not be enough. Whether by choice or accident, the
Framers did not reduce their thoughts about electors' discre-
tion to the printed page. All that they put down about the
electors was what we have said: that the States would ap-
point them, and that they would meet and cast ballots to
send to the Capitol. Those sparse instructions took no posi-
tion on how independent from—or how faithful to—party
and popular preferences the electors' votes should be. On
that score, the Constitution left much to the future. And
the future did not take long in coming. Almost immediately,
presidential electors became trusty transmitters of other
people's decisions.
B
“Long settled and established practice” may have “great
weight in a proper interpretation of constitutional provi-

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593
Opinion of the Court
sions.” The Pocket Veto Case, 279 U. S. 655, 689 (1929). As
James
Madison wrote, “a regular course of practice” can “liq-
uidate & settle the meaning of ” disputed or indeterminate
“terms & phrases.” Letter to S. Roane (Sept. 2, 1819), in 8
Writings of James Madison 450 (G. Hunt ed. 1908); see The
Federalist No. 37, at 229. The Electors make an appeal to
that kind of practice in asserting their right to independence.
But “our whole experience as a Nation” points in the oppo-
site direction. NLRB v. Noel Canning, 573 U. S. 513, 557
(2014) (internal quotation marks omitted). Electors have
only rarely exercised discretion in casting their ballots for
President. From the frst, States sent them to the Electoral
College—as today Washington does—to vote for pre-selected
candidates, rather than to use their own judgment. And
electors (or at any rate, almost all of them) rapidly settled
into that non-discretionary role. See Ray, 343 U. S., at
228–229.
Begin at the beginning—with the Nation's frst contested
election in 1796. Would-be electors declared themselves for
one or the other party's presidential candidate. (Recall that
in this election Adams led the Federalists against Jefferson's
Republicans. See supra, at 583.) In some States, legisla-
tures chose the electors; in others, ordinary voters did.
But in either case, the elector's declaration of support for
a candidate—essentially a pledge—was what mattered. Or
said differently, the selectors of an elector knew just what
they were getting—not someone who would deliberate in
good Hamiltonian fashion, but someone who would vote for
their party's candidate. “[T]he presidential electors,” one
historian writes, “were understood to be instruments for ex-
pressing the will of those who selected them, not independ-
ent agents authorized to exercise their own judgment.”
Whittington, Originalism, Constitutional Construction, and
the Problem of Faithless Electors, 59 Ariz. L. Rev. 903, 911
(2017). And when the time came to vote in the Electoral

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College, all but one elector did what everyone expected,
faith
fully representing their selectors' choice of presidential
candidate.
7
The Twelfth Amendment embraced this new reality—both
acknowledging and facilitating the Electoral College's emer-
gence as a mechanism not for deliberation but for party-line
voting. Remember that the Amendment grew out of a pair
of fascos—the election of two then-bitter rivals as President
and Vice President, and the tie vote that threw the next elec-
tion into the House. See supra, at 583. Both had occurred
because the Constitution's original voting procedures gave
electors two votes for President, rather than one apiece for
President and Vice President. Without the capacity to vote
a party ticket for the two offces, the electors had foundered,
and could do so again. If the predominant party's electors
used both their votes on their party's two candidates, they
would create a tie (see 1800). If they intentionally cast
fewer votes for the intended vice president, they risked the
opposite party's presidential candidate sneaking into the sec-
ond position (see 1796). By allowing the electors to vote
separately for the two offces, the Twelfth Amendment made
party-line voting safe. The Amendment thus advanced,
rather than resisted, the practice that had arisen in the Na-
7
The reaction to even that single elector goes to prove the point that the
system was non-discretionary. In the 1796 election, Pennsylvania held a
statewide vote for electors under a winner-take-all rule (as all but two
States have today). The people voted narrowly for the slate of electors
supporting Jefferson. But Federalist chicanery led to the Governor's in-
clusion of two Federalist electors in the State's delegation to the Electoral
College. One of them, Samuel Miles, agreed to cast his vote for Jefferson,
in line with the winner-take-all expectation on which the race had been
run. If he thought other Federalists would forgive him for acting with
honor, he was wrong. An irate voter reacted: “[W]hen I voted for the
[Federalist] ticket, I voted for John Adams. . . . What! do I chuse Samuel
Miles to determine for me whether John Adams or Thomas Jefferson is
the fttest man for President of the United States? No—I chuse him to
act, not to think.” See Gazette of the United States, Dec. 15, 1796, p. 3,
col. 1 (emphasis in original).

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Opinion of the Court
tion's frst elections. An elector would promise to legisla-
tors
or citizens to vote for their party's presidential and vice
presidential candidates—and then follow through on that
commitment. Or as the Court wrote in Ray, the new proce-
dure allowed an elector to “vote the regular party ticket”
and thereby “carry out the desires of the people” who had
sent him to the Electoral College. Ray, 343 U. S., at 224,
n. 11. No independent electors need apply.
Courts and commentators throughout the 19th century
recognized the electors as merely acting on other people's
preferences. Justice Story wrote that “the electors are now
chosen wholly with reference to particular candidates,” hav-
ing either “silently” or “publicly pledge[d]” how they will
vote. 3 Commentaries on the Constitution of the United
States § 1457, p. 321 (1833). “[N]othing is left to the elec-
tors,” he continued, “but to register [their] votes, which are
already pledged.” Id., at 321–322. Indeed, any “exercise
of an independent judgment would be treated[ ] as a political
usurpation, dishonourable to the individual, and a fraud upon
his constituents.” Id., at 322. Similarly, William Rawle ex-
plained how the Electoral College functioned: “[T]he electors
do not assemble in their several states for a free exercise of
their own judgments, but for the purpose of electing ” the
nominee of “the predominant political party which has cho-
sen those electors.” A View of the Constitution of the
United States of America 57 (2d ed. 1829). Looking back at
the close of the century, this Court had no doubt that Story's
and Rawle's descriptions were right. The electors, the
Court noted, were chosen “simply to register the will of the
appointing power in respect of a particular candidate.” Mc-
Pherson, 146 U. S., at 36.
State election laws evolved to reinforce that development,
ensuring that a State's electors would vote the same way
as its citizens. As noted earlier, state legislatures early
dropped out of the picture; by the mid-1800s, ordinary voters
chose electors. See supra, at 584. Except that increasingly,

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they did not do so directly. States listed only presidential
candidates
on the ballot, on the understanding that electors
would do no more than vote for the winner. Usually, the
State could ensure that result by appointing electors chosen
by the winner's party. But to remove any doubt, States
began in the early 1900s to enact statutes requiring electors
to pledge that they would squelch any urge to break ranks
with voters. See supra, at 584–585. Washington's law,
penalizing a pledge's breach, is only another in the same vein.
It refects a tradition more than two centuries old. In that
practice, electors are not free agents; they are to vote for the
candidate whom the State's voters have chosen.
The history going the opposite way is one of anomalies
only. The Electors stress that since the founding, electors
have cast some 180 faithless votes for either President or
Vice President. See Brief for Petitioners 7. But that is 180
out of over 23,000. See Brief for Republican National Com-
mittee as Amicus Curiae 19. And more than a third of the
faithless votes come from 1872, when the Democratic Party's
nominee (Horace Greeley) died just after Election Day.
8
Putting those aside, faithless votes represent just one-half of
one percent of the total. Still, the Electors counter, Con-
gress has counted all those votes. See Brief for Petitioners
46. But because faithless votes have never come close to
affecting an outcome, only one has ever been challenged.
True enough, that one was counted. But the Electors can-
not rest a claim of historical tradition on one counted vote in
8
The Electors contend that elector discretion is needed to deal with the
possibility that a future presidential candidate will die between Election
Day and the Electoral College vote. See Reply Brief 20–22. We do not
dismiss how much turmoil such an event could cause. In recognition of
that fact, some States have drafted their pledge laws to give electors vot-
ing discretion when their candidate has died. See, e. g., Cal. Elec. Code
Ann. § 6906; Ind. Code § 3–10–4–1.7. And we suspect that in such a case,
States without a specifc provision would also release electors from their
pledge. Still, we note that because the situation is not before us, nothing
in this opinion should be taken to permit the States to bind electors to a
deceased candidate.

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Thomas, J., concurring in judgment
over 200 years. And anyway, the State appointing that elec-
tor
had no law requiring a pledge or otherwise barring his
use of discretion. Congress's deference to a state decision
to tolerate a faithless vote is no ground for rejecting a state
decision to penalize one.
III
The Electors' constitutional claim has neither text nor his-
tory on its side. Article II and the Twelfth Amendment
give States broad power over electors, and give electors
themselves no rights. Early in our history, States decided
to tie electors to the presidential choices of others, whether
legislatures or citizens. Except that legislatures no longer
play a role, that practice has continued for more than 200
years. Among the devices States have long used to achieve
their object are pledge laws, designed to impress on electors
their role as agents of others. A State follows in the same
tradition if, like Washington, it chooses to sanction an elector
for breaching his promise. Then too, the State instructs its
electors that they have no ground for reversing the vote
of millions of its citizens. That direction accords with the
Constitution—as well as with the trust of a Nation that here,
We the People rule.
The judgment of the Supreme Court of Washington is
Affrmed.
Justice Thomas, with whom Justice Gorsuch joins as
to Part II, concurring in the judgment.
The Court correctly determines that States have the
power to require Presidential electors to vote for the candi-
date chosen by the people of the State. I disagree, however,
with its attempt to base that power on Article II. In my
view, the Constitution is silent on States' authority to bind
electors in voting. I would resolve this case by simply rec-
ognizing that “[a]ll powers that the Constitution neither dele-
gates to the Federal Government nor prohibits to the States
are controlled by the people of each State.” U. S. Term

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Thomas, J., concurring in judgment
Limits, Inc. v. Thornton, 514 U. S. 779, 848 (1995) (Thomas,
J
., dissenting).
I
A
The Constitution does not address—expressly or by neces-
sary implication—whether States have the power to require
that Presidential electors vote for the candidates chosen by
the people. Article II, § 1, and the Twelfth Amendment pro-
vide for the election of the President through a body of elec-
tors. But neither speaks directly to a State's power over
elector voting.
The only provision in the Constitution that arguably ad-
dresses a State's power over Presidential electors is Clause
2 of Article II, § 1. That Clause provides, in relevant part,
that “[e]ach State shall appoint, in such Manner as the Legis-
lature thereof may direct, a Number of Electors.” As I
have previously explained, this language “imposes an af-
frmative obligation on the States” to establish the manner
for appointing electors. U. S. Term Limits, 514 U. S., at 864
(dissenting opinion). By using the term “shall,” “the Clause
expressly requires action by the States.” Id., at 862 (inter-
nal quotation marks omitted); see also Maine Community
Health Options v. United States, 590 U. S. 296, 310 (2020)
(“The frst sign that the statute imposed an obligation is its
mandatory language: `shall' ”); Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) (recognizing
that “ `shall' . . . normally creates an obligation”). This obli-
gation to provide the manner of appointing electors does not
expressly delegate power to States; it simply imposes an af-
frmative duty. See U. S. Term Limits, supra, at 862–863
(Thomas, J., dissenting).
B
In a somewhat cursory analysis, the Court concludes that
the States' duty to appoint electors “in such Manner as the
Legislature thereof may direct,” Art. II, § 1, cl. 2, provides

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an express grant of “power to appoint an elector.” Ante,
at
589. As explained above, this interpretation erroneously
confates the imposition of a duty with the granting of a
power. But even setting that issue aside, I cannot agree
with the Court's analysis. The Court appears to misinterpret
Article II, § 1, by overreading its language as authorizing the
broad power to impose and enforce substantive conditions on
appointment. The Court then misconstrues the State of
Washington's law as enforcing a condition of appointment.
1
The Court's conclusion that the text of Article II, § 1, ex-
pressly grants States the power to impose substantive condi-
tions or qualifcations on electors is highly questionable. Its
interpretation appears to strain the plain meaning of the
text, ignore historical evidence, and give the term “Manner”
different meanings in parallel provisions of Article I and Ar-
ticle II.
First, the Court's attempt to root its analysis in Article II,
§ 1, seems to stretch the plain meaning of the Constitution's
text. Article II, § 1, provides that States shall appoint elec-
tors “in such Manner as the Legislature thereof may direct.”
At the time of the founding, the term “manner” referred to
a “[f]orm” or “method.” 1 S. Johnson, A Dictionary of the
English Language (6th ed. 1785); see also 1 J. Ash, The New
and Complete Dictionary of the English Language (2d ed.
1795). These defnitions suggest that Article II requires
state legislatures merely to set the approach for selecting
Presidential electors, not to impose substantive limitations
on whom may become an elector. And determining the
“Manner” of appointment certainly does not include the
power to impose requirements as to how the electors vote
after they are appointed, which is what the Washington law
addresses. See infra, at 604–605.
Historical evidence from the founding also suggests that
the “Manner” of appointment refers to the method for select-

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Thomas, J., concurring in judgment
ing electors, rather than the substantive limitations placed
on
the position. At the Convention, the Framers debated
whether Presidential electors should be selected by the state
legislatures or by other electors chosen by the voters of each
State. Oliver Ellsworth and Luther Martin, for example,
thought the President should be chosen by electors selected
by state legislatures. McPherson v. Blacker, 146 U. S. 1, 28
(1892). Alexander Hamilton, however, preferred a system
in which the President would be chosen “by electors chosen
by electors chosen by the people.” Ibid. The fnal lan-
guage of Article II “seems to have reconciled [the] contrari-
ety of views by leaving it to the state legislatures” to set the
manner of elector appointment. Ibid. In context, it is clear
that the Framers understood “Manner” in Article II, § 1, to
refer to the mode of appointing electors—consistent with the
plain meaning of the term.
This understanding of “Manner” was seemingly shared by
those at the ratifying conventions. For instance, at the
North Carolina ratifying convention, John Steele stated that
“[t]he power over the manner of elections [under Article I,
§ 4] does not include that of saying who shall vote.” 4 De-
bates on the Constitution 71 (J. Elliot ed. 1863) (emphasis
added). Rather “the power over the manner only enables
[States] to determine how these electors shall elect.” Ibid.
(emphasis added and deleted). In short, the historical con-
text and contemporaneous use of the term “Manner” seem
to indicate that the Framers and the ratifying public both
understood the term in accordance with its plain meaning.
Finally, the Court's interpretation gives the same term—
“Manner”—different meanings in two parallel provisions of
the Constitution. Article I, § 4, states that “[t]he Times,
Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the
Legislature thereof.” In U. S. Term Limits, the Court con-
cluded that the term “Manner” in Article I includes only “a
grant of authority to issue procedural regulations,” not “the

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601
Thomas, J., concurring in judgment
broad power to set qualifcations.” 514 U. S., at 832–833
(
majority opinion); see also id., at 861–864 (Thomas, J., dis-
senting). Yet, today, the Court appears to take the exact
opposite view. The Court interprets the term “Manner” in
Article II, § 1, to include the power to impose conditions or
qualifcations on the appointment of electors. Ante, at 589.
With respect, I demur. “When seeking to discern the
meaning of a word in the Constitution, there is no better
dictionary than the rest of the Constitution itself.” Arizona
State Legislature v. Arizona Independent Redistricting
Comm'n, 576 U. S. 787, 829 (2015) (Roberts, C. J., dissent-
ing); cf. Scialabba v. Cuellar de Osorio, 573 U. S. 41, 60 (2014)
(Kagan, J., for the Court) (“ `[W]ords repeated in different
parts of the same statute generally have the same meaning ' ”
(quoting Law v. Siegel, 571 U. S. 415, 422 (2014))). While
terms may not always have the exact same meaning through-
out the Constitution, here we are interpreting the same word
(“Manner”) in two provisions that the Court has already
stated impose “paralle[l]” duties—setting the “ `Manner of
holding Elections' ” and setting the “ `Manner' ” of “ `appoint-
[ing] a Number of Electors.' ” U. S. Term Limits, 514 U. S.,
at 804–805 (majority opinion). Nothing in the Constitution's
text or history indicates that the Court should take the
strongly disfavored step of concluding that the term “Man-
ner” has two different meanings in these closely aligned
provisions.
All the Court can point to in support of its position is a
single sentence in Ray v. Blair, 343 U. S. 214 (1952), which
suggested that a State's power to impose a requirement that
electors pledge to vote for their party's nominee comes from
Article II, § 1, id., at 227. But this statement is simply made
in passing in response to one of the parties' arguments. It
is curiously bereft of reasoning or analysis of Article II. We
generally look to the text to govern our analysis rather than
insouciantly follow stray, “incomplete” statements in our
prior opinions, see Thryv, Inc. v. Click-To-Call Technologies,

602 CHIAF
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Thomas, J., concurring in judgment
LP, 590 U. S. 45, 59 (2020). In my view, we should be guided
by
the text here.
2
Even accepting the Court's broad interpretation of Clause
2 of Article II, § 1, I cannot agree with its determination that
this Clause expressly authorizes the Washington law at issue
here. In an attempt to tie Washington's law to the State's
“power to appoint an elector,” see ante, at 589, the Court
construes Wash. Rev. Code § 29A.56.340 (2016) as “enforc-
[ing] a pledge.” See ante, at 589; see also ante, at 581, 587–
588, 597. But § 29A.56.340 did not involve the enforcement
of a pledge or relate to the appointment process at all.
1
It
simply regulated electors' votes, unconnected to the appoint-
ment process.
To understand the Court's error, a brief summary of its
theory is necessary. According to the Court, Article II, § 1,
grants States “the power to appoint” Presidential electors
“in such Manner as the Legislature thereof may direct.”
Ante, at 589. That “power to appoint an elector,” the Court
states, “includes power to condition his appointment.” Ibid.
The power to condition appointment in turn allows the State
to insist that an “elector pledge to cast his Electoral College
ballot for his party's presidential nominee.” Ibid. And
fnally, “the State's appointment power . . . enables the
enforcement of a pledge.” Ibid. The Court's theory is
entirely premised on the St ate exercisi ng a power to
appoint.
Assuming the Court has correctly interpreted Article II,
§ 1, there are certain circumstances in which this theory
could stand. Some States expressly require electors to
pledge to vote for a party nominee as a condition of appoint-
ment and then impose a penalty if electors violate that
1
In 2019, Washington revised its laws addressing Presidential electors,
eliminating the provision imposing a civil penalty on faithless electors.
See 2019 Wash. Sess. Laws pp. 755–758.

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Thomas, J., concurring in judgment
pledge. For example, under Oklahoma law, “[e]very party
nomi
nee for Presidential Elector shall subscribe to an oath,
stating that said nominee, if elected, will cast a ballot for
the persons nominated for the offces of President and Vice
President by the nominee's party.” Okla. Stat., Tit. 26, § 10–
102 (2019). Oklahoma then penalizes the violation of that
oath: “Any Presidential Elector who violates his oath as a
Presidential Elector shall be guilty of a misdemeanor and,
upon conviction thereof, shall be punished by a fne of not
more than One Thousand Dollars ($1,000.00).” § 10–109
(emphasis added). Other States have similar laws, frst
requiring a pledge as a condition of appointment and then
penalizing the violation of that pledge. See, e. g., Ind. Code
§ 3–10–4–1.7(a) (2019) (imposing pledge requirement); § 3–
10–4–9(d) (stating that “[a] presidential elector who . . . pre-
sents a ballot marked in violation of the presidential elec-
tor's pledge executed under section 1.7 . . . of this chapter,
vacates the offce of presidential elector” (emphasis added));
Minn. Stat. § 208.43 (2020 Cum. Supp.) (imposing pledge re-
quirement); § 208.46(c) (stating that “[a]n elector who . . . pre-
sents a ballot marked in violation of the elector's pledge
executed under section 208.43 . . . vacates the offce of elec-
tor” (emphasis added)).
2
But not all States attempt to bind electors' votes through
the appointment process. Some States simply impose a
legal duty that has no connection to elector appointment.
See ante, at 585. For example, New Mexico imposes a legal
duty on its electors: “All presidential electors shall cast their
ballots in the electoral college for the candidates of the politi-
cal party which nominated them as presidential electors.”
N. M. Stat. Ann. § 1–15–9(A) (Supp. 2011). And “[a]ny presi-
dential elector who casts his ballot in violation of [this duty]
is guilty of a fourth degree felony.” § 1–15–9(B). California
2
See also Mont. Code Ann. §§ 13–25–304, 13–25–307(4) (2019); Neb. Rev.
St at. §§ 32 –713(2), 32 –714(4) (2016); Wash. Rev. Code §§29A.56.084,
29A.56.090(3) (2019).

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Thomas, J., concurring in judgment
has a similar system. It frst imposes a legal duty on elec-
tors
to vote for the nominated candidates of the political
party they represent if those candidates are alive. Cal.
Elec. Code Ann. § 6906 (West 2019). It then imposes a pun-
ishment on “[e]very person charged with the performance of
any duty under any law of this state relating to elections,
who willfully neglects or refuses to perform it.” § 18002.
3
These laws penalize electors for their faithless votes. But
they do not attempt to regulate the votes of electors through
the appointment process. In fact, these laws have nothing
to do with elector appointment.
The Court recognizes the distinction between these two
types of laws, i. e., laws enforcing appointment conditions
and laws that regulate electors outside of the appointment
process. See ante, at 585 (recognizing that some States
“merely impose [a] duty by law”). But it claims this is
merely a “small semantic differenc[e].” Ante, at 590, n. 6.
Far from being semantic, the difference between the power
to impose a “condition of appointment” and the power to im-
pose restrictions on electors that have nothing to do with
appointment is fundamental to the Court's textual argu-
ment. The Court's entire analysis is premised on States'
purported Article II “power to appoint an elector” and “to
condition his appointment.” Ante, at 589. The Court does
not, and cannot, claim that the text of Article II provides
States power over anything other than the appointment of
electors. See ante, at 589–590.
Here, the challenged Washington law did not enforce any
appointment condition. It provided that “[a]ny elector who
3
Michigan likewise does not regulate electors through the appointment
process. Under Michigan law, the failure of an already appointed elector
to resign “signifes” that the elector “consent[s] to serve and to cast his
vote for the candidates for president and vice-president appearing on the
Michigan ballot of the political party which nominated him.” Mich. Comp.
Laws § 168.47 (2008). Attempting to cast a vote for another candidate
“constitutes a resignation from the offce of elector.” Ibid.

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votes for a person or persons not nominated by the party of
wh
ich he or she is an elector is subject to a civil penalty of
up to one thousand dollars.” Wash. Rev. Code § 29A.56.340
(2016). Unlike the laws of Oklahoma, Indiana, Minnesota
and the other St ates discussed above, a v i olati on of
§ 29A.56.340 was not predicated on violating a pledge or any
other condition of appointment. In fact, it did not even men-
tion a pledge, which was set forth in a separate, unreferenced
provision. See § 29A.56.320. Thus, § 29A.56.340 had no
connection to the appointment process and could be enforced
independent of the existence of any pledge requirement.
While the Court's description of § 29A.56.340 as a law enforc-
ing a condition of appointment may be helpful for the Court's
claim that Washington's law was rooted in Article II, § 1's
“power to appoint,” it is simply not accurate. Thus, even
accepting the Court's strained reading of Article II, § 1's
text, I cannot agree with the Court's effort to reconcile
Washington's law with its desired theory.
In short, the Constitution does not speak to States' power
to require Presidential electors to vote for the candidates
chosen by the people. The Court's attempt to ground such
a power in Article II's text falls short. Rather than contort
the language of both Article II and the state statute, I would
acknowledge that the Constitution simply says nothing about
the States' power in this regard.
II
When the Constitution is silent, authority resides with the
States or the people. This allocation of power is both em-
bodied in the structure of our Constitution and expressly re-
quired by the Tenth Amendment. The application of this
fundamental principle should guide our decision here.
A
“The ultimate source of the Constitution's authority is the
consent of the people of each individual State.” U. S. Term

606 CHIAF
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Thomas, J., concurring in judgment
Limits, 514 U. S., at 846 (Thomas, J., dissenting). When the
St
ates ratifed the Federal Constitution, the people of each
State acquiesced in the transfer of limited power to the Fed-
eral Government. They ceded only those powers granted to
the Federal Government by the Constitution. “The Federal
Government and the States thus face different default rules:
Where the Constitution is silent about the exercise of a
particular power[,] the Federal Government lacks that
power and the States enjoy it.” Id., at 848; see also United
States v. Comstock, 560 U. S. 126, 159 (2010) (Thomas, J.,
dissenting).
This allocation of power is apparent in the structure of our
Constitution. The Federal Government “is acknowledged
by all to be one of enumerated powers.” McCulloch v.
Maryland, 4 Wheat. 316, 405 (1819). “[T]he powers dele-
gated by the . . . Constitution to the federal government are
few and defned,” while those that belong to the States “re-
main . . . numerous and indefnite.” The Federalist No. 45,
p. 292 (C. Rossiter ed. 1961) (J. Madison). Article I, for ex-
ample, enumerates various legislative powers in § 8, but it
specifcally limits Congress' authority to the “legislative
Powers herein granted,” § 1. States face no such constraint
because the Constitution does not delineate the powers of
the States. Article I, § 10, contains a brief list of powers
removed from the States, but States are otherwise “free to
exercise all powers that the Constitution does not withhold
from them. ” Co m st ock, sup ra, at 159 (Thomas, J.,
dissenting).
This structural principle is explicitly enshrined in the
Tenth Amendment. That Amendment states that “[t]he
powers not delegated to the United States by the Constitu-
tion, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.” As Justice Story ex-
plained, “[t]his amendment is a mere affrmation of what,
upon any just reasoning, is a necessary rule of interpreting

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Thomas, J., concurring in judgment
the constitution. Being an instrument of limited and enu-
merated
powers, it follows irresistibly, that what is not con-
ferred, is withheld, and belongs to the state authorities.” 3
J. Story, Commentaries on the Constitution of the United
States § 1900, p. 752 (1833); see also Alden v. Maine, 527 U. S.
706, 714 (1999); New York v. United States, 505 U. S. 144, 156
(1992). In other words, the Tenth Amendment “states but a
truism that all is retained which has not been surrendered,”
United States v. Darby, 312 U. S. 100, 124 (1941), “mak[ing]
clear that powers reside at the state level except where the
Constitution removes them from that level,” U. S. Term Lim-
its, supra, at 848 (Thomas, J., dissenting); see also Garcia v.
San Antonio Metropolitan Transit Authority, 469 U. S. 528,
549 (1985).
Thus, “[w]here the Constitution is silent about the exercise
of a particular power[,] that is, where the Constitution does
not speak either expressly or by necessary implication,” the
power is “either delegated to the state government or re-
tained by the people.” U. S. Term Limits, supra, at 847–
848 (Thomas, J., dissenting); cf. Martin v. Hunter's Lessee, 1
Wheat. 304, 326 (1816) (stating that the Federal Govern-
ment's powers under the Constitution must be “expressly
given, or given by necessary implication”).
B
This fundamental allocation of power applies in the con-
text of the electoral college. Article II, § 1, and the Twelfth
Amendment address the election of the President through a
body of electors. These sections of the Constitution provide
the Federal Government with limited powers concerning the
election, set various requirements for the electors, and im-
pose an affrmative obligation on States to appoint electors.
Art. II, § 1; Amdt. 12. Each of these directives is consistent
with the general structure of the Constitution and the princi-
ple of reserved powers. See supra, at 605–607; U. S. Term

608 CHIAF
ALO v. WASHINGTON
Thomas, J., concurring in judgment
Limits, supra, at 863 (Thomas, J., dissenting). Put simply,
noth
ing in the text or structure of Article II and the Twelfth
Amendment contradicts the fundamental distribution of
power preserved by the Tenth Amendment.
Of course, the powers reserved to the States concerning
Presidential electors cannot “be exercised in such a way as
to violate express constitutional commands.” Williams v.
Rhodes, 393 U. S. 23, 29 (1968). That is, powers related to
electors reside with States to the extent that the Constitu-
tion does not remove or restrict that power. Thus, to invali-
date a state law, there must be “something in the Federal
Constitution that deprives the [States of] the power to enact
such [a] measur[e].” U. S. Term Limits, supra, at 850
(Thomas, J., dissenting).
As the Court recognizes, nothing in the Constitution pre-
vents States from requiring Presidential electors to vote for
the candidate chosen by the people. Petitioners ask us to
infer a constitutional right to elector independence by inter-
preting the terms “appoint,” “Electors,” “vote,” and “by Bal-
lot” to align with the Framers' expectations of discretion in
elector voting. But the Framers' expectations aid our inter-
pretive inquiry only to the extent that they provide evidence
of the original public meaning of the Constitution. They
cannot be used to change that meaning. As the Court ex-
plains, the plain meaning of the terms relied on by petition-
ers does not appear to “connote independent choice.” Ante,
at 591. Thus, “the original expectation[s]” of the Framers
as to elector discretion provide “no reason for holding that
the power confded to the States by the Constitution has
ceased to exist.” McPherson, 146 U. S., at 36; see also ante,
at 592.
***
“The people of the States, from whom all governmental
powers stem, have specifed that all powers not prohibited
to the States by the Federal Constitution are reserved `to

Cite
as: 591 U. S. 578 (2020)
609
Thomas, J., concurring in judgment
the States respectively, or to the people.' ” U. S. Term Lim-
i
ts, 514 U. S., at 852 (Thomas, J., dissenting). Because I
would decide this case based on that fundamental principle,
I concur only in the judgment.

610 OCTOBER
TERM, 2019
Syllabus
BARR, ATTORNEY GENERAL, et al. v. AMERICAN
ASSOCIA
TION OF POLITICAL CONSULTANTS,
INC., et al.
certiorari to the united states court of appeals for
the fourth circuit
No. 19–631. Argued May 6, 2020—Decided July 6, 2020
In response to consumer complaints, Congress passed the Telephone Con-
sumer Protection Act of 1991 (TCPA) to prohibit, inter alia, almost all
robocalls to cell phones. 47 U. S. C. § 227(b)(1)(A)(iii). In 2015, Con-
gress amended the robocall restriction, carving out a new government-
debt exception that allows robocalls made solely to collect a debt owed
to or guaranteed by the United States. 129 Stat. 588. The American
Association of Political Consultants and three other organizations that
par ticipate i n the politica l system fi led a declaratory judg ment
action, claiming that § 227(b)(1)(A)(iii) violated the First Amendment.
The District Court determined that the robocall restriction with the
government-debt exception was content-based but that it survived
strict scrutiny because of the Government's compelling interest in col-
lecting debt. The Fourth Circuit vacated the judgment, agreeing that
the robocall restriction with the government-debt exception was a
content-based speech restriction, but holding that the law could not
withstand strict scrutiny. The court invalidated the government-debt
exception and applied traditional severability principles to sever it from
the robocall restriction.
Held: The judgment is affrmed.
923 F. 3d 159, affrmed.
Justice Kavanaugh, joi ned by The Chief Justice, Justice
Thomas, and Justice Alito, concluded i n Par t II that the 2015
government-debt exception violates the First Amendment. Pp. 618–621.
(a) The Free Speech Clause provides that government generally “has
no power to restrict expression because of its message, its ideas, its
subject matter, or its content.” Police Dept. of Chicago v. Mosley,
408 U. S. 92, 95. Under this Court's precedents, content-based laws
are subjec t to str ic t scr uti ny. See Reed v. To w n o f G i lbe r t, 576
U. S. 155, 165. Section 227(b)(1)(A)(iii)'s robocall restriction, with the
government-debt exception, is content-based because it favors speech
made for the purpose of collecting government debt over political and
other speech. Pp. 618–619.

Cite
as: 591 U. S. 610 (2020)
611
Syllabus
(b) The Government's arguments for deeming the statute content-
neutra
l are unpersuasive. First, § 227(b)(1)(A)(iii) does not draw dis-
tinctions based on speakers, and even if it did, that would not “automati-
cally render the distinction content neutral.” Reed, 576 U. S., at 170.
Second, the law here focuses on whether the caller is speaking about
a particular topic and not, as the Government contends, simply on
whether the caller is engaged in a particular economic activity. See
Sorrell v. IMS Health Inc., 564 U. S. 552, 563–564. Third, while “the
First Amendment does not prevent restrictions directed at commerce
or conduct from imposing incidental burdens on speech,” this law “does
not simply have an effect on speech, but is directed at certain content
and is aimed at particular speakers.” Id., at 567. Pp. 619–620.
(c) As the Government concedes, the robocall restriction with the
government-debt exception cannot satisfy strict scrutiny. The Govern-
ment has not sufficiently justi fied the di fferentiati on between
government-debt collection speech and other important categories of
robocall speech, such as political speech, issue advocacy, and the like.
P. 621.
Justice Kavanaugh, joined by The Chief Justice and Justice
Alito, concluded in Part III that the 2015 government-debt exception
is severable from the underlying 1991 robocall restriction. The TCPA
is part of the Communications Act, which has contained an express sev-
erability clause since 1934. Even if that clause did not apply to the
exception, the presumption of severability would still apply. See, e. g.,
Free Enterprise Fund v. Public Company Accounting Oversight Bd.,
561 U. S. 477. The remainder of the law is capable of functioning inde-
pendently and would be fully operative as a law. Severing this rela-
tively narrow exception to the broad robocall restriction fully cures the
First Amendment unequal-treatment problem and does not raise any
other constitutional problems. Pp. 621–636.
Justice Sotomayor concluded that the government-debt exception
fails under intermediate scrutiny and is severable from the rest of the
Act. Pp. 636–637.
Justice Breyer, joined by Justice Ginsburg and Justice Kagan,
would have upheld the government-debt exception, but given the con-
trary majority view, agreed that the provision is severable from the rest
of the statute. P. 648.
Justice Gorsuch concluded that content-based restrictions on
speech are subject to strict scrutiny, that the Telephone Consumer Pro-
tection Act's rule against cell phone robocalls is a content-based restric-
tion, and that this rule fails strict scrutiny and therefore cannot be con-
stitutionally enforced. Pp. 648–651.

612 B
ARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Syllabus
Kavanaugh, J., announced the judgment of the Court and delivered an
opi
nion, in which Roberts, C. J., and Alito, J., joined, and in which
Thomas, J., joined as to Parts I and II. Sotomayor, J., fled an opinion
concurring in the judgment, post, p. 636. Breyer, J., fled an opinion
concurring in the judgment with respect to severability and dissenting in
part, in which Ginsburg and Kagan, JJ., joined, post, p. 637. Gorsuch,
J., fled an opinion concurring in the judgment in part and dissenting in
part, in which Thomas, J., joined as to Part II, post, p. 648.
Deputy Solicitor General Stewart argued the cause for
petitioners. With him on the briefs were Solicitor General
Francisco, Assistant Attorney General Hunt, Frederick
Liu, Mark B. Stern, and Michael S. Raab.
Ro m an Mar t inez arg ued the cause for respondents.
With him on the brief were Andrew B. Clubok, Susan E.
Engel, and William E. Raney.*
*Briefs of amici curiae urging reversal were fled for the State of Indi-
ana et al. by Curtis T. Hill, Jr., Attorney General of Indiana, Thomas M.
Fisher, Solicitor General, Kian J. Hudson, Deputy Solicitor General, and
Julia C. Payne, Deputy Attorney General, by Joshua H. Stein, Attorney
General of North Carolina, Matthew W. Sawchak, Solicitor General, Ryan
Y. Park, Deputy Solicitor General, and Nicholas S. Brod, Assistant Solici-
tor General, by Eric J. Wilson, Deputy Attorney General of Wisconsin,
and by the Attorneys General for their respective jurisdictions as follows:
Steve Marshall of Alabama, Kevin G. Clarkson of Alaska, Leslie Rutledge
of Arkansas, William Tong of Connecticut, Kathleen Jennings of Dela-
ware, Clare E. Connors of Hawaii, Lawrence G. Wasden of Idaho, Kwame
Raoul of Illinois, Tom Miller of Iowa, Derek Schmidt of Kansas, Jeffrey
M. Landry of Louisiana, Aaron M. Frey of Maine, Brian E. Frosh of
Maryland, Maura Healey of Massachusetts, Dana Nessel of Michigan,
Keith Ellison of Minnesota, Eric Schmitt of Missouri, Timothy C. Fox of
Montana, Aaron Ford of Nevada, Gordon MacDonald of New Hampshire,
Wayne Steneh jem of North Dakota, Mike Hunter of Oklahoma, Ellen F.
Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Jason R. Ravnsborg
of South Dakota, Herbert H. Slatery III of Tennessee, Sean Reyes of Utah,
Mark R. Herring of Virginia, Robert W. Ferguson of Washington, and
Patrick Morrisey of West Virginia; for the Chamber of Commerce of the
United States of America by Shay Dvoretzky and Jeffrey R. Johnson; for
the Electronic Privacy Information Center et al. by Marc Rotenberg and
Alan Butler; for Facebook, Inc., by Paul D. Clement, Kasdin M. Mitchell,
and Lauren N. Beebe; for Healthcare Companies by Michael D. Roth and

Cite
as: 591 U. S. 610 (2020)
613
Opinion of Kavanaugh, J.
Justice Kavanaugh announced the judgment of the
Cour
t and delivered an opinion, in which The Chief Jus-
tice and Justice Alito join, and in which Justice Thomas
joins as to Parts I and II.
Americans passionately disagree about many things. But
they are largely united in their disdain for robocalls. The
Federal Government receives a staggering number of com-
plaints about robocalls—3.7 million complaints in 2019 alone.
The States likewise feld a constant barrage of complaints.
For nearly 30 years, the people's representatives in Con-
gress have been fghting back. As relevant here, the Tele-
phone Consumer Protection Act of 1991, known as the TCPA,
generally prohibits robocalls to cell phones and home phones.
But a 2015 amendment to the TCPA allows robocalls that are
made to collect debts owed to or guaranteed by the Federal
Government, including robocalls made to collect many stu-
dent loan and mortgage debts.
This case concerns robocalls to cell phones. Plaintiffs in
this case are political and nonproft organizations that want
to make political robocalls to cell phones. Invoking the
First Amendment, they argue that the 2015 government-
Maxwell V. Pritt; for the Institute for Free Speech by Parker Douglas;
for the National League of Cities et al. by John M. Baker, Katherine M.
Swenson, and Lisa Soronen; for Portfolio Recovery Associates, LLC, by
Misha Tseytlin; for Public Citizen et al. by Scott L. Nelson and Allison
M. Zieve; and for the Student Loan Servicing Alliance by Jessica L. Ells-
worth and Mark W. Brennan.
Briefs of amici curiae urging affrmance were fled for the Cato Insti-
tute by Robert Corn-Revere, Ronald G. London, and Ilya Shapiro; and
for the Retail Energy Supply Association by Michael P. Daly.
Briefs of amici curiae were fled for Fifteen Members of Congress by
Keith J. Keogh; for the Institute of Justice by Robert J. McNamara and
Paul M. Sherman; for Midland Credit Management, Inc., by Zachary C.
Schauf and Amy M. Gallegos; for the National Consumer Law Center
et al. by Tara Twomey, Christopher M. Miller, and Leigh R. Schachter;
and for the Retail Litigation Center, Inc., et al. by Joseph R. Palmore and
Deborah R. White.

614 B
ARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of Kavanaugh, J.
debt exception unconstitutionally favors debt-collection
speech
over political and other speech. As relief from that
unconstitutional law, they urge us to invalidate the entire
1991 robocall restriction, rather than simply invalidating the
2015 government-debt exception.
Six Members of the Court today conclude that Congress
has impermissibly favored debt-collection speech over politi-
cal and other speech, in violation of the First Amendment.
See infra, at 618–621; post, at 636–637 (Sotomayor, J., con-
curring in judgment); post, at 648, 650 (Gorsuch, J., concur-
ring in judgment in part and dissenting in part). Applying
traditional severability principles, seven Members of the
Court conclude that the entire 1991 robocall restriction
should not be invalidated, but rather that the 2015 govern-
ment-debt exception must be invalidated and severed from
the remainder of the statute. See infra, at 621–636; post, at
637 (Sotomayor, J., concurring in judgment); post, at 648
(Breyer, J., concurring in judgment with respect to sever-
ability and dissenting in part). As a result, plaintiffs still
may not make political robocalls to cell phones, but their
speech is now treated equally with debt-collection speech.
The judgment of the U. S. Court of Appeals for the Fourth
Circuit is affrmed.
I
A
In 1991, Congress passed and President George H. W.
Bush signed the Telephone Consumer Protection Act. The
Act responded to a torrent of vociferous consumer com-
plaints about intrusive robocalls. A growing number of tel-
emarketers were using equipment that could automatically
dial a telephone number and deliver an artifcial or prere-
corded voice message. At the time, more than 300,000 solici-
tors ca l led more than 18 mi l l i on Amer icans every day.
TCPA, § 2, ¶¶3, 6, 105 Stat. 2394, note following 47 U. S. C.
§ 227. Consumers were “outraged” and considered robocalls

Cite
as: 591 U. S. 610 (2020)
615
Opinion of Kavanaugh, J.
an invasion of privacy “regardless of the content or the initia-
tor
of the message.” ¶¶6, 10.
A leading Senate sponsor of the TCPA captured the zeit-
geist in 1991, describing robocalls as “the scourge of modern
civilization. They wake us up in the morning; they inter-
rupt our dinner at night; they force the sick and elderly out
of bed; they hound us until we want to rip the telephone
right out of the wall.” 137 Cong. Rec. 30821 (1991).
In enacting the TCPA, Congress found that banning robo-
calls was “the only effective means of protecting telephone
consumers from this nuisance and privacy invasion.” TCPA
§ 2, ¶12. To that end, the TCPA imposed various restric-
tions on the use of automated telephone equipment. § 3(a),
105 Stat. 2395. As relevant here, one restriction prohibited
“any call (other than a call made for emergency purposes or
made with the prior express consent of the called party)
using any automatic telephone dialing system or an artifcial
or prerecorded voice” to “any telephone number assigned
to a paging service, cellular telephone service, specialized
mobile radio service, or other radio common carrier service,
or any service for which the called party is charged for
the call.” Id., at 2395–2396 (emphasis added). That provi-
sion is codifed in § 227(b)(1)(A)(iii) of Title 47 of the U. S.
Code.
In plain English, the TCPA prohibited almost all robocalls
to cell phones.
1
1
The robocall restriction, as implemented by the Federal Communica-
tions Commission, bars both automated voice calls and automated text
messages. See In re Rules and Regulations Implementing the Tele-
phone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14115 (2003).
The robocall restriction applies to “persons,” which does not include the
Government itself. See 47 U. S. C. § 153(39). Congress has also author-
ized the FCC to promulgate regulatory exceptions to the robocall restric-
tion. See § 227(b)(2)(C). The FCC has authorized various exceptions
over the years, such as exceptions for package-delivery notifcations and
certain healthcare-related calls. In this case, plaintiffs do not separately
challenge the validity of the FCC's regulatory exceptions.

616 B
ARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of Kavanaugh, J.
Twenty-four years later, in 2015, Congress passed and
President
Obama signed the Bipartisan Budget Act. In ad-
dition to making other unrelated changes to the U. S. Code,
that Act amended the TCPA's restriction on robocalls to cell
phones. It stated:
“(a) In General.—Section 227(b) of the Communica-
tions Act of 1934 (47 U. S. C. 227(b)) is amended—
(1) in paragraph (1)—
(A) in subparagraph (A)(iii), by inserting `, unless such
call is made solely to collect a debt owed to or guaran-
teed by the United States' after `charged for the call.' ”
129 Stat. 588.
2
In other words, Congress carved out a new government-
debt exception to the general robocall restriction.
The TCPA imposes tough penalties for violating the robo-
call restriction. Private parties can sue to recover up
to $1,500 per violation or three times their actual mone-
tary losses, which can add up quickly in a class action.
§ 227(b)(3). States may bring civil actions against robo-
callers on behalf of their citizens. § 227(g)(1). And the
Federal Communications Commission can seek forfeiture
penalties for willful or repeated violations of the statute.
§ 503(b).
2
After the 2015 amendment, § 227(b)(1) now provides:
“It shall be unlawful for any person within the United States, or any
person outside the United States if the recipient is within the United
States—
(A) to make any call (other than a call made for emergency purposes or
made with the prior express consent of the called party) using any auto-
matic telephone dialing system or an artifcial or prerecorded voice—
.....
(iii) to any telephone number assigned to a paging service, cellular tele-
phone service, specialized mobile radio service, or other radio common
carrier service, or any service for which the called party is charged for
the call, unless such call is made solely to collect a debt owed to or guar-
anteed by the United States.” (Emphasis added.)

Cite
as: 591 U. S. 610 (2020)
617
Opinion of Kavanaugh, J.
B
Plai
ntiffs in this case are the American Association of Po-
litical Consultants and three other organizations that partici-
pate in the political system. Plaintiffs and their members
make calls to citizens to discuss candidates and issues, solicit
donations, conduct polls, and get out the vote. Plaintiffs be-
lieve that their political outreach would be more effective
and effcient if they could make robocalls to cell phones.
3
But because plaintiffs are not in the business of collecting
government debt, § 227(b)(1)(A)(iii) prohibits them from
making those robocalls.
Plaintiffs fled a declaratory judgment action against the
U. S. Attorney General and the FCC, claiming that § 227(b)
(1)(A)(iii) violated the First Amendment. The U. S. District
Court for the Eastern District of North Carolina determined
that the robocall restriction with the government-debt ex-
ception was a content-based speech regulation, thereby trig-
gering strict scrutiny. But the court concluded that the law
survived strict scrutiny, even with the content-based excep-
tion, because of the Government's compelling interest in col-
lecting debt.
The U. S. Court of Appeals for the Fourth Circuit vacated
the judgment. American Assn. of Political Consultants,
Inc. v. FCC, 923 F. 3d 159 (2019). The Court of Appeals
agreed with the District Court that the robocall restriction
with the government-debt exception was a content-based
speech restriction. But the court held that the law could not
withstand strict scrutiny and was therefore unconstitutional.
The Court of Appeals then applied traditional severability
principles and concluded that the government-debt exception
was severable from the underlying robocall restriction. The
Court of Appeals therefore invalidated the government-debt
exception and severed it from the robocall restriction.
3
Plaintiffs have not challenged the TCPA's separate restriction on robo-
calls to home phones. See 47 U. S. C. § 227(b)(1)(B).

618 B
ARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of Kavanaugh, J.
The Government petitioned for a writ of certiorari because
the
Court of Appeals invalidated part of a federal statute—
namely, the government-debt exception. Plaintiffs sup-
por ted the petiti on, arg ui ng from the other direc ti on
that the Court of Appeals did not go far enough in providing
relief and should have invalidated the entire 1991 robocall
restr ic ti on rather than si mply i nva l idati ng the 2015
government-debt exception. We granted certiorari. 589
U. S. 1127 (2020).
II
Ratifed in 1791, the First Amendment provides that Con-
gress shall make no law “abridging the freedom of speech.”
Above “all else, the First Amendment means that govern-
ment” generally “has no power to restrict expression be-
cause of its message, its ideas, its subject matter, or its con-
tent.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95
(1972).
The Court's precedents allow the government to “constitu-
tionally impose reasonable time, place, and manner regula-
tions” on speech, but the precedents restrict the government
from discriminating “in the regulation of expression on the
basis of the content of that expression.” Hudgens v. NLRB,
424 U. S. 507, 520 (1976). Content-based laws are subject to
strict scrutiny. See Reed v. Town of Gilbert, 576 U. S. 155,
163–164 (2015). By contrast, content-neutral laws are sub-
ject to a lower level of scrutiny. Id., at 166.
Section 227(b)(1)(A)(iii) generally bars robocalls to cell
phones. Since the 2015 amendment, the law has exempted
robocalls to collect government debt. The initial First
Amendment question is whether the robocall restriction,
with the government-debt exception, is content-based. The
answer is yes.
As relevant here, a law is content-based if “a regulation of
speech `on its face' draws distinctions based on the message
a speaker conveys.” Reed, 576 U. S., at 163. That descrip-

Cite
as: 591 U. S. 610 (2020)
619
Opinion of Kavanaugh, J.
tion applies to a law that “singles out specifc subject matter
for
differential treatment.” Id., at 169. For example, “a
law banning the use of sound trucks for political speech—
and only political speech—would be a content-based regula-
tion, even if it imposed no limits on the political viewpoints
that could be expressed.” Ibid.; see, e. g., Simon & Schus-
ter, Inc. v. Members of N. Y. State Crime Victims Bd., 502
U. S. 105, 116 (1991); Arkansas Writers' Project, Inc. v. Rag-
land, 481 U. S. 221, 229–230 (1987); Widmar v. Vincent, 454
U. S. 263, 265, 276–277 (1981); Carey v. Brown, 447 U. S. 455,
459–463 (1980); Erznoznik v. Jacksonville, 422 U. S. 205,
211–212 (1975); Mosley, 408 U. S., at 95–96.
Under § 227(b)(1)(A)(iii), the legality of a robocall turns on
whether it is “made solely to collect a debt owed to or guar-
anteed by the United States.” A robocall that says, “Please
pay your government debt” is legal. A robocall that says,
“Please donate to our political campaign” is illegal. That is
about as content-based as it gets. Because the law favors
speech made for collecting government debt over political
and other speech, the law is a content-based restriction on
speech.
The Government advances three main arguments for
deeming the statute content-neutral, but none is persuasive.
First, the Government suggests that § 227(b)(1)(A)(iii)
draws distinctions based on speakers (authorized debt collec-
tors), not based on content. But that is not the law in front
of us. This statute singles out calls “made solely to collect
a debt owed to or guaranteed by the United States,” not all
calls from authorized debt collectors.
In any event, “the fact that a distinction is speaker based”
does not “automatically render the distinction content neu-
tral.” Reed, 576 U. S., at 170; Sorrell v. IMS Health Inc.,
564 U. S. 552, 563–564 (2011). Indeed, the Court has held
that “ `laws favoring some speakers over others demand
strict scrutiny when the legislature's speaker preference re-

620 B
ARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of Kavanaugh, J.
fects a content preference.' ” Reed, 576 U. S., at 170 (quot-
i
ng Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622,
658 (1994)).
Second, the Government argues that the legality of a robo-
call under the statute depends simply on whether the caller
is engaged in a particular economic activity, not on the con-
tent of speech. We disagree. The law here focuses on
whether the caller is speaking about a particular topic. In
Sorrell, this Court held that a law singling out pharmaceuti-
cal marketing for unfavorable treatment was content-based.
564 U. S., at 563–564. So too here.
Third, according to the Government, if this statute is
content-based because it singles out debt-collection speech,
then so are statutes that regulate debt collection, like the
Fair Debt Collection Practices Act. See 15 U. S. C. § 1692 et
seq.
4
That slippery-slope argument is unpersuasive in this
case. As we explained in Sorrell, “the First Amendment
does not prevent restrictions directed at commerce or con-
duct from imposing incidental burdens on speech.” 564
U. S., at 567. The law here, like the Vermont law in Sorrell,
“does not simply have an effect on speech, but is directed at
certain content and is aimed at particular speakers.” Ibid.
The Government's concern is understandable, but the courts
have generally been able to distinguish impermissible
content-based speech restrictions from traditional or ordi-
nary economic regulation of commercial activity that im-
poses incidental burdens on speech. The issue before us
concerns only robocalls to cell phones. Our decision today
on that issue fts comfortably within existing First Amend-
ment precedent. Our decision is not intended to expand ex-
isting First Amendment doctrine or to otherwise affect tradi-
tional or ordinary economic regulation of commercial activity.
4
Th is opi ni on uses the ter m “debt-col lec ti on speech” and “debt-
collection robocalls” as shorthand for government-debt collection speech
and robocalls.

Cite
as: 591 U. S. 610 (2020)
621
Opinion of Kavanaugh, J.
In short, the robocall restriction with the government-
debt
exception is content-based. Under the Court's prece-
dents, a “law that is content based” is “subject to strict
scrutiny.” Reed, 576 U. S., at 165. The Government con-
cedes that it cannot satisfy strict scrutiny to justify the
government-debt exception. We agree. The Government's
stated justifcation for the government-debt exception is col-
lecting government debt. Although collecting government
debt is no doubt a worthy goal, the Government concedes
that it has not suffciently justifed the differentiation be-
tween government-debt collection speech and other impor-
tant categories of robocall speech, such as political speech,
charitable fundraising, issue advocacy, commercial advertis-
ing, and the like.
5
III
Having concluded that the 2015 government-debt excep-
tion created an unconstitutional exception to the 1991 robo-
call restriction, we must decide whether to invalidate the
entire 1991 robocall restriction, or instead to invalidate and
sever the 2015 government-debt exception. Before we
apply ordinary severability principles, we must address
plaintiffs' broader initial argument for why the entire 1991
robocall restriction is unconstitutional.
5
In his scholarly separate opinion, Justice Breyer explains how he
would apply freedom of speech principles. But the Court's longstanding
precedents, which we carefully follow here, have not adopted that ap-
proach. In essence, therefore, Justice Breyer argues for overruling
several of the Court's First Amendment cases, including the recent 2015
decision in Reed v. Town of Gilbert, 576 U. S. 155 (2015). Before overrul-
ing precedent, the Court usually requires that a party ask for overruling,
or at least obtains briefng on the overruling question, and then the
Court carefully evaluates the traditional stare decisis factors. Here, no
party has asked for overruling, and Justice Breyer's opinion does not
analyze the usual stare decisis factors. Justice Breyer's opinion there-
fore discounts both the Court's precedent and the Court's precedent on
precedent.

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A
Plai
ntiffs correctly point out that the Government's as-
serted interest for the 1991 robocall restriction is consumer
privacy. But according to plaintiffs, Congress's willingness
to enact the government-debt exception in 2015 betrays a
newfound lack of genuine congressional concern for con-
sumer privacy. As plaintiffs phrase it, the 2015 exception
“undermines the credibility” of the Government's interest in
consumer privacy. Tr. of Oral Arg. 39. Plaintiffs further
contend that if Congress no longer has a genuine interest
in consumer privacy, then the underlying 1991 robocall
restriction is no longer justifed (presumably under any
level of heightened scr uti ny) and is therefore now
unconstitutional.
Plaintiffs' argument is not without force, but we ultimately
disagree with it. It is true that the Court has recognized
that exceptions to a speech restriction “may diminish
the credibility of the government's rationale for restricting
speech in the frst place.” City of Ladue v. Gilleo, 512
U. S. 43, 52 (1994). But here, Congress's addition of the
government-debt exception in 2015 does not cause us to
doubt the credibility of Congress's continuing interest in pro-
tecting consumer privacy.
After all, the government-debt exception is only a slice of
the overall robocall landscape. This is not a case where a
restriction on speech is littered with exceptions that sub-
stantially negate the restriction. On the contrary, even
after 2015, Congress has retained a very broad restriction
on robocalls. The pre-1991 statistics on robocalls show that
a variety of organizations collectively made a huge number
of robocalls. And there is no reason to think that the incen-
tives for those organizations—and many others—to make
robocalls has diminished in any way since 1991. The con-
tinuing robocall restriction proscribes tens of millions of
would-be robocalls that would otherwise occur every day.
Congress's continuing broad prohibition of robocalls amply

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demonstrates Congress's continuing interest in consumer
pr
ivacy.
The simple reality, as we assess the legislative develop-
ments, is that Congress has competing interests. Con-
gress's growing interest (as refected in the 2015 amend-
ment) in collecting government debt does not mean that
Congress suddenly lacks a genuine interest in restricting ro-
bocalls. Plaintiffs seem to argue that Congress must be in-
terested either in debt collection or in consumer privacy.
But that is a false dichotomy, as we see it. As is not infre-
quently the case with either/or questions, the answer to this
either/or question is “both.” Congress is interested both
in collecting government debt and in protecting consumer
privacy.
Therefore, we disagree with plaintiffs' broader initial ar-
gument for holding the entire 1991 robocall restriction
unconstitutional.
B
Plaintiffs next focus on ordinary severability principles.
Applying those principles, the question before the Court
is whether (i) to invalidate the entire 1991 robocall restric-
tion, as plaintiffs want, or (ii) to invalidate just the 2015
government-debt exception and sever it from the remainder
of the statute, as the Government wants.
We agree with the Government that we must invalidate
the 2015 government-debt exception and sever that excep-
tion from the remainder of the statute. To explain why, we
begin with general severability principles and then apply
those principles to this case.
1
When enacting a law, Congress sometimes expressly ad-
dresses severability. For example, Congress may include a
severability clause in the law, making clear that the uncon-
stitutionality of one provision does not affect the rest of
the law. See, e. g., 12 U. S. C. § 5302; 15 U. S. C. § 78gg; 47

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U. S. C. § 608. Alternatively, Congress may include a non-
sev
erability clause, making clear that the unconstitutionality
of one provision means the invalidity of some or all of the
remainder of the law, to the extent specifed in the text of
the nonseverability clause. See, e. g., 4 U. S. C. § 125; note
following 42 U. S. C. § 300aa–1; 94 Stat. 1797.
When Congress includes an express severability or non-
severability clause in the relevant statute, the judicial in-
quiry is straightforward. At least absent extraordinary cir-
cumstances, the Court should adhere to the text of the
severability or nonseverability clause. That is because a
severability or nonseverability clause leaves no doubt about
what the enacting Congress wanted if one provision of the
law were later declared unconstitutional. A severability
clause indicates “that Congress did not intend the validity
of the statute in question to depend on the validity of the
constitutionally offensive provision.” Alaska Airlines, Inc.
v. Brock, 480 U. S. 678, 686 (1987). And a nonseverability
clause does the opposite.
On occasion, a party will nonetheless ask the Court to
override the text of a severability or nonseverability clause
on the ground that the text does not refect Congress's “ac-
tual intent” as to severability. That kind of argument may
have carried some force back when courts paid less attention
to statutory text as the defnitive expression of Congress's
will. But courts today zero in on the precise statutory text
and, as a result, courts hew closely to the text of severability
or nonseverability clauses. See Seila Law LLC v. Con-
sumer Financial Protection Bureau, 591 U. S. 197, 234
(2020) (plurality opinion); cf. Milner v. Department of Navy,
562 U. S. 562, 569–573 (2011).
6
6
When Congress enacts a law with a severability clause and later adds
new provisions to that statute, the severability clause applies to those new
provisions to the extent dictated by the text of the severability clause.
Likewise, when Congress has not included a severability clause in initial
legislation, Congress can subsequently enact a severability clause that ap-

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Of course, when enacting a law, Congress often does not
i
nclude either a severability clause or a nonseverability
clause.
In those cases, it is sometimes said that courts applying
severability doctrine should search for other indicia of con-
gressional intent. For example, some of the Court's cases
declare that courts should sever the offending provision un-
less “the statute created in its absence is legislation that
Congress would not have enacted.” Alaska Airlines, 480
U. S., at 685. But experience shows that this formulation
often leads to an analytical dead end. That is because
courts are not well equipped to imaginatively reconstruct a
prior Congress's hypothetical intent. In other words, ab-
sent a severability or nonseverability clause, a court often
cannot really know what the two Houses of Congress and the
President from the time of original enactment of a law would
have wanted if one provision of a law were later declared
unconstitutional.
The Court's cases have instead developed a strong pre-
sumption of severability. The Court presumes that an
unconstitutional provision in a law is severable from the
remainder of the law or statute. For example, in Free En-
terprise Fund v. Public Company Accounting Oversight
Bd., the Court set forth the “normal rule”: “Generally speak-
ing, when confronting a constitutional faw in a statute, we
try to limit the solution to the problem, severing any prob-
lematic portions while leaving the remainder intact.” 561
U. S. 477, 508 (2010) (internal quotation marks omitted); see
also Seila Law, 591 U. S., at 234 (same). In Regan v. Time,
Inc., the plurality opinion likewise described a “presump-
tion” in “favor of severability” and stated that the Court
should “refrain from invalidating more of the statute than is
necessary.” 468 U. S. 641, 652–653 (1984).
plies to the existing statute to the extent dictated by the text of the later-
added severability clause. In both scenarios, the text of the severability
clause remains central to the severability inquiry.

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The Court's power and preference to partially invalidate
a
statute in that fashion has been frmly established since
Marbury v. Madison. There, the Court invalidated part of
§ 13 of the Judiciary Act of 1789. 1 Cranch 137, 179–180
(1803). The Judiciary Act did not contain a severability
clause. But the Court did not proceed to invalidate the en-
tire Judiciary Act. As Chief Justice Marshall later ex-
plained, if any part of an Act is “unconstitutional, the provi-
sions of that part may be disregarded while full effect will
be given to such as are not repugnant to the constitution of
the United States.” Bank of Hamilton v. Lessee of Dudley,
2 Pet. 492, 526 (1829); see also Dorchy v. Kansas, 264 U. S.
286, 289–290 (1924) (“A statute bad in part is not necessarily
void in its entirety. Provisions within the legislative power
may stand if separable from the bad”); Loeb v. Columbia
Township Trustees, 179 U. S. 472, 490 (1900) (“one section
of a statute may be repugnant to the Constitution without
rendering the whole act void”).
From Marbury v. Madison to the present, apart from
some isolated detours mostly in the late 1800s and early
1900s, the Court's remedial preference after fnding a provi-
sion of a federal law unconstitutional has been to salvage
rather than destroy the rest of the law passed by Congress
and signed by the President. The Court's precedents refect
a decisive preference for surgical severance rather than
wholesale destruction, even in the absence of a severability
clause.
The Court's presumption of severability supplies a work-
able solution—one that allows courts to avoid judicial policy-
making or de facto judicial legislation in determining just
how much of the remainder of a statute should be invali-
dated.
7
The presumption also refects the confned role of
7
If courts had broad license to invalidate more than just the offending
provision, a reviewing court would have to consider what other provisions
to invalidate: the whole section, the chapter, the statute, the public law, or
something else altogether. Courts would be largely at sea in making that

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the Judiciary in our system of separated powers—stated oth-
er
wise, the presumption manifests the Judiciary's respect for
Congress's legislative role by keeping courts from unneces-
sarily disturbing a law apart from invalidating the provision
that is unconstitutional. Furthermore, the presumption
recognizes that plaintiffs who successfully challenge one pro-
vision of a law may lack standing to challenge other pro-
visions of that law. See Murphy v. National Collegiate
Athletic Assn., 584 U. S. 453, 490–491 (2018) (Thomas, J.,
concurring).
Those and other considerations, taken together, have
steered the Court to a presumption of severability. Apply-
ing the presumption, the Court invalidates and severs uncon-
stitutional provisions from the remainder of the law rather
than razing whole statutes or Acts of Congress. Put in com-
mon parlance, the tail (one unconstitutional provision) does
not wag the dog (the rest of the codifed statute or the Act
as passed by Congress). Constitutional litigation is not a
game of gotcha against Congress, where litigants can ride a
discrete constitutional faw in a statute to take down the
whole, otherwise constitutional statute. If the rule were
otherwise, the entire Judiciary Act of 1789 would be invalid
as a consequence of Marbury v. Madison.
8
determination, and usually could not do it in a principled way. Here, for
example, would a court invalidate all or part of the Bipartisan Budget
Act of 2015 rather than all or part of the 1991 TCPA? After all, that
2015 Bipartisan Budget Act, not the 1991 TCPA, added the constitu-
tionally problematic government-debt exception. That is the kind of free-
wheeling policy question that the Court's presumption of severability
avoids.
8
The term “invalidate” is a common judicial shorthand when the Court
holds that a particular provision is unlawful and therefore may not be
enforced against a plaintiff. To be clear, however, when it “invalidates”
a law as unconstitutional, the Court of course does not formally repeal the
law from the U. S. Code or the Statutes at Large. Instead, in Chief Jus-
tice Marshall's words, the Court recognizes that the Constitution is a “su-
perior, paramount law,” and that “a legislative act contrary to the constitu-

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Before severing a provision and leaving the remainder of
a
law intact, the Court must determine that the remainder
of the statute is “capable of functioning independently” and
thus would be “fully operative” as a law. Seila Law, 591
U. S., at 235; see Murphy, 584 U. S., at 481–486. But it is
fairly unusual for the remainder of a law not to be operative.
9
2
We next apply those general severability principles to
this case.
Recall how this statute came together. Passed by Con-
gress and signed by President Franklin Roosevelt in 1934,
tion is not law” at all. Marbury v. Madison, 1 Cranch 137, 177 (1803).
The Court's authority on this front “amounts to little more than the nega-
tive power to disregard an unconstitutional enactment.” Massachusetts
v. Mellon, 262 U. S. 447, 488 (1923).
Justice Thomas's thoughtful approach to severability as outlined in
Murphy v. National Collegiate Athletic Assn., 584 U. S. 453, 486–491
(2018), and Seila Law LLC v. Consumer Financial Protection Bureau,
591 U. S. 197, 251–261 (2020) ( joined by Justice Gorsuch in the latter)
would simply enjoin enforcement of a law as applied to the particular
plaintiffs in a case. Under either the Court's approach or Justice Thom-
as’s approach, an offending provision formally remains on the statute
books (at least unless Congress also formally repeals it). Under either
approach, the formal remedy afforded to the plaintiff is an injunction, dec-
laration, or damages. One difference between the two approaches is this:
Under the Court's approach, a provision is declared invalid and cannot be
lawfully enforced against others. Under Justice Thomas's approach, the
Court's ruling that a provision cannot be enforced against the plaintiff,
plus executive respect in its enforcement policies for controlling decisional
law, plus vertical and horizontal stare decisis in the courts, will mean that
the provision will not and cannot be lawfully enforced against others.
The Court and Justice Thomas take different analytical paths, but in
many cases, the different paths lead to the same place.
9
On occasion, of course, it may be that a particular surrounding or con-
nected provision is not operative in the absence of the unconstitutional
provision, even though the rest of the law would be operative. That sce-
nario may require severance of somewhat more than just the offending
provision, albeit not of the entire law. Courts address that scenario as
it arises.

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the Communicati ons Ac t is codi fied i n T itle 47 of the
U
. S. Code. The TCPA of 1991 amended the Communi-
cations Act by adding the robocall restriction, which is
codifed at § 227(b)(1)(A)(iii) of Title 47. The Bipartisan
Budget Act of 2015 then amended the Communications Act
by adding the government-debt exception, which is codifed
along with the robocall restriction at § 227(b)(1)(A)(iii) of
Title 47.
Since 1934, the Communications Act has contained an ex-
press severability clause: “If any provision of this chapter or
the application thereof to any person or circumstance is held
invalid, the remainder of the chapter and the application of
such provision to other persons or circumstances shall not be
affected thereby.” 47 U. S. C. § 608 (emphasis added). The
“chapter” referred to in the severability clause is Chapter 5
of Title 47. And Chapter 5 in turn encompasses § 151 to
§ 700 of Title 47, and therefore covers § 227 of Title 47, the
provision with the robocall restriction and the government-
debt exception.
10
Enacted in 2015, the government-debt exception added an
unconstitutional discriminatory exception to the robocall re-
striction. The text of the severability clause squarely cov-
ers the unconstitutional government-debt exception and re-
quires that we sever it.
To get around the text of the severability clause, plaintiffs
point out that the Communications Act's severability clause
was enacted in 1934, long before the TCPA's 1991 robocall
restriction and the 2015 government-debt exception. But a
severability clause must be interpreted according to its
terms, regardless of when Congress enacted it. See n. 6,
supra.
10
A codifer's note explains a change in wording from the original Public
Law: “This chapter, referred to in text, was in the original `this Act',
meaning act June 19, 1934, ch. 652, 48 Stat. 1064, known as the Communi-
cations Act of 1934, which is classifed principally to this chapter.” Note
following 47 U. S. C. § 608.

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Even if the severability clause did not apply to the
gover
nment-debt provision at issue in this case (or even if
there were no severability clause in the Communications
Act), we would apply the presumption of severability as de-
scribed and applied in cases such as Free Enterprise Fund.
And under that presumption, we likewise would sever the
2015 government-debt exception, the constitutionally offend-
ing provision.
With the government-debt exception severed, the remain-
der of the law is capable of functioning independently and
thus would be fully operative as a law. Indeed, the remain-
der of the robocall restriction did function independently
and fully operate as a law for 20-plus years before the
government-debt exception was added in 2015.
The Court's precedents further support severing the 2015
government-debt exception. The Court has long applied
severability principles in cases like this one, where Congress
added an unconstitutional amendment to a prior law.
In those cases, the Court has treated the original, pre-
amendment statute as the “valid expression of the legislative
intent.” Frost v. Corporation Comm'n of Okla., 278 U. S.
515, 526–527 (1929). The Court has severed the “exception
introduced by amendment,” so that “the original law stands
without the amendatory exception.” Truax v. Corrigan,
257 U. S. 312, 342 (1921).
For example, in Eberle v. Michigan, the Court held that
“discriminatory wine-and-cider amendments” added in 1899
and 1903 were severable from the underlying 1889 state law
generally prohibiting the manufacture of alcohol. 232 U. S.
700, 704–705 (1914). In Truax, the Court ruled that a 1913
amendment prohibiting Arizona courts from issuing injunc-
tions in labor disputes was invalid and severable from the
underlying 1901 law authorizing Arizona courts to issue in-
junctions generally. 257 U. S., at 341–342. In Frost, the
Court concluded that a 1925 amendment exempting certain

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corporations from making a showing of “public necessity” in
order
to obtain a cotton gin license was invalid and severable
from the 1915 law that required that showing. 278 U. S., at
525–528. Echoing Marbury, the Court in Frost explained
that an unconstitutional statutory amendment “is a nullity”
and “void” when enacted, and for that reason has no effect
on the original statute. 278 U. S., at 526–527 (internal quo-
tation marks omitted).
11
Similarly, in 1932, Congress enacted the Federal Kidnap-
ing Act, and then in 1934, added a death penalty provision
to the Act. The death penalty provision was later declared
unconstitutional by this Court. In considering severability,
the Court stated that the “law as originally enacted in 1932
contained no capital punishment provision.” United States
v. Jackson, 390 U. S. 570, 586 (1968). And when Congress
amended the Act in 1934 to add the death penalty, “the stat-
ute was left substantially unchanged in every other respect.”
Id., at 587–588. The Court found it “diffcult to imagine a
more compelling case for severability.” Id., at 589. So too
here.
In sum, the text of the Communications Act's severability
clause requires that the Court sever the 2015 government-
debt exception from the remainder of the statute. And even
if the text of the severability clause did not apply here, the
presumption of severability would require that the Court
sever the 2015 government-debt exception from the remain-
der of the statute.
11
The cases cited in the text above are pre-Erie decisions involving the
constitutionality of state laws. See Erie R. Co. v. Tompkins, 304 U. S. 64
(1938). In that era, the Court often treated severability of state laws and
federal laws in the same general way. In the post-Erie era, severability
of state laws can potentially pose different questions than severability of
federal laws. We need not address post-Erie severability of state laws.
See, e. g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S.
320, 328–331 (2006); Leavitt v. Jane L., 518 U. S. 137, 139 (1996) (per cu-
riam) (“Severability is of course a matter of state law”).

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3
One
fnal severability wrinkle remains. This is an equal-
treatment case, and equal-treatment cases can sometimes
pose complicated severability questions.
The “First Amendment is a kind of Equal Protection
Clause for ideas.” Williams-Yulee v. Florida Bar, 575 U. S.
433, 470 (2015) (Scalia, J., dissenting). And Congress vio-
lated that First Amendment equal-treatment principle in
this case by favoring debt-collection robocalls and discrimi-
nating against political and other robocalls.
When the constitutional violation is unequal treatment, as
it is here, a court theoretically can cure that unequal treat-
ment either by extending the benefts or burdens to the ex-
empted class, or by nullifying the benefts or burdens for
all. See, e. g., Heckler v. Mathews, 465 U. S. 728, 740 (1984).
Here, for example, the Government would prefer to cure the
unequal treatment by extending the robocall restriction and
thereby proscribing nearly all robocalls to cell phones. By
contrast, plaintiffs want to cure the unequal treatment by
nullifying the robocall restriction and thereby allowing all
robocalls to cell phones.
When, as here, the Court confronts an equal-treatment
constitutional violation, the Court generally applies the same
commonsense severability principles described above. If
the statute contains a severability clause, the Court typically
severs the discriminatory exception or classifcation, and
thereby extends the relevant statutory benefts or burdens
to those previously exempted, rather than nullifying the ben-
efts or burdens for all. In light of the presumption of sever-
ability, the Court generally does the same even in the
absence of a severability clause. The Court's precedents re-
fect that preference for extension rather than nullifcation.
See, e. g., Sessions v. Morales-Santana, 582 U. S. 47, 74
(2017); Califano v. Westcott, 443 U. S. 76, 89–91 (1979); Cali-
fano v. Goldfarb, 430 U. S. 199, 202–204, 213–217 (1977) (plu-
rality opinion); Jimenez v. Weinberger, 417 U. S. 628, 637–638

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(1974); Department of Agriculture v. Moreno, 413 U. S. 528,
529,
537–538 (1973); Frontiero v. Richardson, 411 U. S. 677,
678–679, 690–691 (1973) (plurality opinion); Welsh v. United
States, 398 U. S. 333, 361–367 (1970) (Harlan, J., concurring
in result).
To be sure, some equal-treatment cases can raise complex
questions about whether it is appropriate to extend benefts
or burdens, rather than nullifying the benefts or burdens.
See, e. g., Morales-Santana, 582 U. S., at 75–76. For exam-
ple, there can be due process, fair notice, or other independ-
ent constitutional barriers to extension of benefts or bur-
dens. Cf. Miller v. Albright, 523 U. S. 420, 458–459 (1998)
(Scalia, J., concurring in judgment); see generally Ginsburg,
Some Thoughts on Judicial Authority to Repair Unconstitu-
tional Legislation, 28 Clev. St. L. Rev. 301 (1979). There
also can be knotty questions about what is the exception and
what is the rule. But here, we need not tackle all of the
possible hypothetical applications of severability doctrine in
equal-treatment cases. The government-debt exception is a
relatively narrow exception to the broad robocall restriction,
and severing the government-debt exception does not raise
any other constitutional problems.
Plaintiffs insist, however, that a First Amendment equal-
treatment case is different. According to plaintiffs, a court
should not cure “a First Amendment violation by outlawing
more speech.” Brief for Respondents 34. The implicit
premise of that argument is that extending the robocall re-
striction to debt-collection robocalls would be unconstitu-
tional. But that is wrong. A generally applicable robocall
restriction would be permissible under the First Amend-
ment. Extending the robocall restriction to those robocalls
raises no First Amendment problem. So the First Amend-
ment does not tell us which way to cure the unequal treat-
ment in this case. Therefore, we apply traditional severabil-
ity principles. And as we have explained, severing the 2015
government-debt exception cures the unequal treatment and

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constitutes the proper result under the Court's traditional
se
verability principles. In short, the correct result in this
case is to sever the 2015 government-debt exception and
leave in place the longstanding robocall restriction.
12
4
Justice Gorsuch's well-stated separate opinion makes a
number of important points that warrant this respectful
response.
Justice Gorsuch suggests that our decision provides “no
relief ” to plaintiffs. Post, at 653. We disagree. Plaintiffs
want to be able to make political robocalls to cell phones, and
they have not received that relief. But the First Amend-
ment complaint at the heart of their suit was unequal treat-
ment. Invalidating and severing the government-debt ex-
ception fully addresses that First Amendment injury.
13
Justice Gorsuch further suggests that plaintiffs may lack
standing to challenge the government-debt exception, be-
cause that exception merely favors others. See ibid. But
the Court has squarely held that a plaintiff who suffers un-
equal treatment has standing to challenge a discriminatory
exception that favors others. See Heckler v. Mathews, 465
U. S., at 737–740 (a plaintiff who suffers unequal treatment
has standing to seek “withdrawal of benefts from the fa-
12
As the Government acknowledges, although our decision means the
end of the government-debt exception, no one should be penalized or held
liable for making robocalls to collect government debt after the effective
date of the 2015 government-debt exception and before the entry of fnal
judgment by the District Court on remand in this case, or such date that
the lower courts determine is appropriate. See Reply Brief 24. On the
other side of the ledger, our decision today does not negate the liability of
parties who made robocalls covered by the robocall restriction.
13
Plaintiffs suggest that parties will not have incentive to sue if the cure
for challenging an unconstitutional exception to a speech restriction is to
eliminate the exception and extend the restriction. But many individuals
and organizations often have incentive to challenge unequal treatment of
speech, especially when a competitor is regulated less heavily.

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vored class”); see also Northeastern Fla. Chapter, Associ-
a
ted Gen. Contractors of America v. Jacksonville, 508 U. S.
656, 666 (1993) (“The `injury in fact' in an equal protection
case of this variety is the denial of equal treatment resulting
from the imposition of the barrier, not the ultimate inability
to obtain the beneft”).
Justice Gorsuch also objects that our decision today
“harms strangers to this suit” by eliminating favorable treat-
ment for debt collectors. Post, at 653. But that is neces-
sarily true in many cases where a court cures unequal treat-
ment by, for example, extending a burden or nullifying a
beneft. See, e. g., Morales-Santana, 582 U. S., at 77 (curing
unequal treatment of children born to unwed U. S.-citizen
fathers by extending a burden to children of unwed U. S.-
citizen mothers); Orr v. Orr, 374 So. 2d 895, 896–897 (Ala.
Civ. App. 1979) (extending alimony obligations to women
after a male plaintiff successfully challenged Alabama's dis-
criminatory alimony statute in this Court).
Moreover, Justice Gorsuch’s approach to this case would
not solve the problem of harming strangers to this suit; it
would just create a different and much bigger problem. His
proposed remedy of injunctive relief, plus stare decisis,
would in effect allow all robocalls to cell phones—notwith-
standing Congress's decisive choice to prohibit most robo-
calls to cell phones. That is not a judicially modest approach
but is more of a wolf in sheep's clothing. That approach
would disrespect the democratic process, through which the
people's representatives have made crystal clear that robo-
calls must be restricted. Justice Gorsuch's remedy would
end up harming a different and far larger set of strangers to
this suit—the tens of millions of consumers who would be
bombarded every day with nonstop robocalls notwithstand-
ing Congress's clear prohibition of those robocalls.
Justice Gorsuch suggests more broadly that severability
doctrine may need to be reconsidered. But when and how?
As the saying goes, John Marshall is not walking through

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Sotomayor, J., concurring in judgment
that door. And this Court, in this and other recent deci-
si
ons, has clarifed and refned severability doctrine by em-
phasizing frm adherence to the text of severability clauses,
and underscoring the strong presumption of severability.
The doctrine as so refned is constitutionally well-rooted, see,
e. g., Marbury v. Madison, 1 Cranch 137 (Marshall, C. J.), and
can be predictably applied. True, there is no magic solution
to severability that solves every conundrum, especially in
equal-treatment cases, but the Court's current approach
as refected in recent cases such as Free Enterprise Fund
and Seila Law is constitutional, stable, predictable, and
commonsensical.
***
In 1991, Congress enacted a general restriction on robo-
calls to cell phones. In 2015, Congress carved out an ex-
ception that allowed robocalls made to collect government
debt. In doing so, Congress favored debt-collection speech
over plaintiffs' political speech. We hold that the 2015
government-debt exception added an unconstitutional ex-
ception to the law. We cure that constitutional violation
by invalidating the 2015 government-debt exception and
severing it from the remainder of the statute. The judg-
ment of the U. S. Court of Appeals for the Fourth Circuit
is affrmed.
It is so ordered.
Justice Sotomayor, concurring in the judgment.
I agree with much of the partial dissent's explanation that
strict scrutiny should not apply to all content-based distinc-
tions. Cf. post, at 641–645 (Breyer, J., concurring in judg-
ment with respect to severability and dissenting in part).
In my view, however, the government-debt exception in 47
U. S. C. § 227(b) still fails intermediate scrutiny because it is
not “narrowly tailored to serve a signifcant governmental
interest.” Ward v. Rock Against Racism, 491 U. S. 781, 791
(1989) (internal quotation marks omitted). Even under in-

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termediate scrutiny, the Government has not explained how
a
debt-collection robocall about a government-backed debt
is any less intrusive or could be any less harassing than a
debt-collection robocall about a privately backed debt. As
the Fourth Circuit noted, the government-debt exception is
seriously underinclusive because it permits “many of the in-
trusive calls that the automated call ban was enacted to pro-
hibit.” American Assn. of Political Consultants, Inc. v.
FCC, 923 F. 3d 159, 168 (2019) (case below). The Govern-
ment could have employed far less restrictive means to
further its interest in collecting debt, such as “secur[ing] con-
sent from the debtors to make debt-collection calls” or “plac-
[ing] the calls itself.” Id., at 169, n. 10; see also § 227(b)
(1)(A). Nor has the Government “suffciently justifed the
differentiation between government-debt collection speech
and other important categories of robocall speech, such as
political speech, charitable fundraising, issue advocacy, com-
mercial advertising, and the like.” Ante, at 621.
Nevertheless, I agree that the offending provision is sever-
able. See ante, at 614; post, at 648 (opinion of Breyer, J.);
see also City of Ladue v. Gilleo, 512 U. S. 43, 51–53 (1994)
(explaining that an appropriate “solution” to a law that cov-
ers “too little speech because its exemptions discriminate on
the basis of [the speaker's] messages” could be to “remove”
the discrimination).
With those understandings, I concur in the judgment.
Justice Breyer, with whom Justice Ginsburg and
Justice Kagan join, concurring in the judgment with re-
spect to severability and dissenting in part.
A federal statute forbids, with some exceptions, making
automatically dialed or prerecorded telephone calls (called
robocalls) to cell phones. This case concerns one of these
exceptions, which applies to calls “made solely to collect a
debt owed to or guaranteed by the United States.” 47
U. S. C. § 227(b)(1)(A)(iii). A majority of the Court holds

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that the exception violates the Constitution's First Amend-
ment.
In my view, it does not.
I
This case concerns the Telephone Consumer Protection
Act of 1991. That Act was designed to “protec[t] telephone
consumers from th[e] nuisance and privacy invasion” caused
by automated and prerecorded phone calls. § 2(12), 105
Stat. 2395. The Act, among other things, bans almost all
robocalls made to cell phones. In particular, it forbids “any
call (other than a call made for emergency purposes or made
with the prior express consent of the called party) using any
automatic telephone dialing system or an artifcial or prere-
corded voice . . . to any telephone number assigned to a . . .
cellular telephone service.” § 3(a) (codifed at 47 U. S. C.
§ 227(b)(1)(A)(iii)). The Act delegates authority to the Fed-
eral Communications Commission to make certain additional
exceptions from that general cell phone robocall restriction.
§ 227(b)(2)(C).
More than 20 years later, Congress enacted another stat-
ute, which created the government-debt exception. The Of-
fce of Management and Budget had reported to Congress
that in “this time of fscal constraint . . . the Federal Govern-
ment should ensure that all debt owed to the United States
is collected as quickly and effciently as possible.” Offce of
Management and Budget, Analytical Perspectives, Budget
of the U. S. Government, Fiscal Year 2016, p. 128 (2015),
https://www.govinfo.gov/content/pkg/BUDGET- 2016 -PER/
pdf/BUDGET-2016-PER.pdf. It recommended that Con-
gress permit “the use of automatic dialing systems and pre-
recorded voice messages” to contact “wireless phones in the
collection of debt owed to or granted [sic] by the United
States.” Ibid.
Congress adopted that recommendation. It enacted a
provision that excepts from the general cell phone robocall
restriction any call “made solely to collect a debt owed to or

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guaranteed by the United States.” 129 Stat. 588; see also
ib
id. (categorizing the exception as a “debt collection im-
provemen[t]” measure). The question here is whether the
First Amendment prohibits the Federal Government from
enacting that government-debt collection measure.
II
The plurality fnds the government-debt exception uncon-
stitutional primarily by applying a logical syllogism: (1)
“Content-based laws are subject to strict scrutiny.” Ante,
at 618 (citing Reed v. Town of Gilbert, 576 U. S. 155, 163–164
(2015)). (2) The exception is based on “content.” Ante, at
619. (3) Hence, the exception is subject to “strict scrutiny.”
Ante, at 621. (4) And the Government concedes that the ex-
ception cannot survive “strict scrutiny” examination. Ibid.
The problem with that approach, which refexively applies
strict scrutiny to all content-based speech distinctions, is
that it is divorced from First Amendment values. This case
primarily involves commercial regulation—namely, debt col-
lection. And, in my view, there is no basis here to apply
“strict scrutiny” based on “content-discrimination.”
To appreciate why, it is important to understand at least
one set of values that underlie the First Amendment and the
related reasons why courts scrutinize some speech restric-
tions strictly. The concept is abstract but simple: “We the
People of the United States” have created a government of
laws enacted by elected representatives. For our govern-
ment to remain a democratic republic, the people must be
free to generate, debate, and discuss both general and spe-
cifc ideas, hopes, and experiences. The people must then
be able to transmit their resulting views and conclusions to
their elected representatives, which they may do directly, or
indirectly through the shaping of public opinion. The object
of that transmission is to infuence the public policy enacted
by elected representatives. As this Court has explained,
“[t]he First Amendment was fashioned to assure unfettered

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interchange of ideas for the bringing about of political and
socia
l changes desired by the people.” Meyer v. Grant, 486
U. S. 414, 421 (1988) (internal quotation marks omitted).
See generally R. Post, Democracy, Expertise, and Academic
Freedom: A First Amendment Jurisprudence for the Modern
State 1–25 (2012).
In other words, the free marketplace of ideas is not simply
a debating society for expressing thought in a vacuum. It
is in signifcant part an instrument for “bringing about . . .
political and social chang[e].” Meyer, 486 U. S., at 421. The
representative democracy that “We the People” have created
insists that this be so. See Sorrell v. IMS Health Inc., 564
U. S. 552, 583 (2011) (Breyer, J., dissenting). See generally,
e. g., B. Neuborne, Madison's Music: On Reading the First
Amendment (2015).
It is thus no surprise that our First Amendment jurispru-
dence has long refected these core values. This Court's
cases have provided heightened judicial protection for politi-
cal speech, public forums, and the expression of all view-
points on any given issue. See, e. g., Buckley v. American
Constitutional Law Foundation, Inc., 525 U. S. 182, 186–187
(1999) (heightened protection for “core political speech”); Ro-
senberger v. Rector and Visitors of Univ. of Va., 515 U. S.
819, 829–830 (1995) (government discrimination on basis of
“particular views taken by speakers on a subject” presump-
tively unconstitutional); Boos v. Barry, 485 U. S. 312, 321
(1988) (“content-based restriction[s] on political speech in a
public forum” subject to “most exacting scrutiny” (emphasis
deleted)); Perry Ed. Assn. v. Perry Local Educators' Assn.,
460 U. S. 37, 45–46 (1983) (content-based exclusions in public
forums subject to strict scrutiny). These cases refect the
straightforward principle that “governments must not be
allowed to choose which issues are worth discussing or de-
bating.” Reed, 576 U. S., at 182 (Kagan, J., concurring in
judgment) (internal quotation marks omitted).

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From a democratic perspective, however, it is equally im-
por
tant that courts not use the First Amendment in a way
that would threaten the workings of ordinary regulatory
programs posing little threat to the free marketplace of ideas
enacted as a result of that public discourse. As a general
matter, the strictest scrutiny should not apply indiscrimi-
nately to the very “political and social changes desired by
the people”—that is, to those government programs which
the “unfettered interchange of ideas” has sought to achieve.
Meyer, 486 U. S., at 421 (internal quotation marks omitted).
Otherwise, our democratic system would fail, not through
the inability of the people to speak or to transmit their views
to government, but because of an elected government's in-
ability to translate those views into action.
Thus, once again, it is not surprising that this Court has
applied less strict standards when reviewing speech restric-
tions embodied in government regulatory programs. This
Court, for example, has applied a “rational basis” standard
for reviewing those restrictions when they have only indirect
impacts on speech. See Glickman v. Wileman Brothers &
Elliott, Inc., 521 U. S. 457, 469–470, 477 (1997). And it has
applied a mid-level standard of review—often termed “inter-
mediate scrutiny”—when the government directly restricts
protected commercial speech. See Central Hudson Gas &
Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557,
561–564 (1980).
This account of well-established principles at the core of
the First Amendment demonstrates the problem with the
plurality's approach. To refexively treat all content-based
distinctions as subject to strict scrutiny regardless of context
or practical effect is to engage in an analysis untethered from
the First Amendment's objectives. And in this case, strict
scrutiny is inappropriate. Recall that the exception at issue
here concerns debt collection—specifcally a method for col-
lecting government-owned or -backed debt. Regulation of
debt collection does not fall on the frst side of the democratic

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equation. It has next to nothing to do with the free market-
place
of ideas or the transmission of the people's thoughts
and will to the government. It has everything to do with
the second side of the equation, that is, with government
response to the public will through ordinary commercial reg-
ulation. To apply the strictest level of scrutiny to the eco-
nomically based exemption here is thus remarkable.
I recognize that the underlying cell phone robocall restric-
tion primarily concerns a means of communication. And
that fact, as I discuss below, triggers some heightened scru-
tiny, refected in an intermediate scrutiny standard. Strict
scrutiny and its strong presumption of unconstitutionality,
however, have no place here.
The plurality claims that its approach, which categorically
applies strict scrutiny to content-based distinctions, will not
“affect traditional or ordinary economic regulation of com-
mercial activity.” Ante, at 620. But how is that so? Much
of human life involves activity that takes place through
speech. And much regulatory activity turns upon speech
content. See, e. g., Reed, 576 U. S., at 177–178 (Breyer, J.,
concurring in judgment) (giving examples). Consider, for
example, the regulation of securities sales, drug labeling,
food labeling, false advertising, workplace safety warnings,
automobile airbag instructions, consumer electronic labels,
tax forms, debt collection, and so on. All of those regula-
tions necessarily involve content-based speech distinctions.
What are the differences between regulatory programs
themselves other than differences based on content? After
all, the regulatory spheres in which the Securities and
Exchange Commission or the Federal Trade Commission
operate are defned by content. Put simply, treating all
content-based distinctions on speech as presumptively un-
constitutional is unworkable and would obstruct the ordinary
workings of democratic governance.
That conclusion is true here notwithstanding the plural-
ity's effort to bring political speech into the First Amend-

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ment analysis. See ante, at 619, 636 (characterizing Con-
g
ress as hav i ng “favored debt-col lec ti on speech over
plaintiffs' political speech”). It is true that the underlying
cell phone robocall restriction generally prohibits political
speakers from making robocalls. But that has little to do
with the government-debt exception or its practical effect.
Nor does it justify the application of strict scrutiny.
Consider prescription drug labels, securities forms, and
tax statements. A government agency might reasonably
specify just what information the form or label must contain
and further provide that the form or label may not contain
other information (thereby excluding political statements).
No one would think that the exclusion of political speech,
say, from a drug label, means that courts must examine all
other regulatory exceptions with strict scrutiny. Put differ-
ently, it is hard to imagine that such exceptions threaten po-
litical speech in the marketplace of ideas, or have any sig-
nifcant impact on the free exchange of ideas. To treat those
exceptions as presumptively unconstitutional would work a
signifcant transfer of authority from legislatures and agen-
cies to courts, potentially inhibiting the creation of the very
government programs for which the people (after debate)
have voiced their support, despite those programs' minimal
speech-related harms. See Sorrell, 564 U. S., at 584–585
(Breyer, J., dissenting). Given the values at the heart of
the First Amendment, see supra, at 639–642, that interpreta-
tion threatens to stand that Amendment on its head. It could
also lead the Court to water down the strict scrutiny standard,
which would limit speech protections in situations where
strict scrutiny's strong protections should properly apply.
Reed, 576 U. S., at 178 (Breyer, J., concurring in judgment).
If, as I have argued, the First Amendment does not sup-
port the mechanical conclusion that content discrimination
automatically triggers strict scrutiny, what role might con-
tent discrimination play? The plurality is correct when it
quotes this Court as having said that the government may

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not discriminate “ `in the regulation of expression on the
basis
of the content of that expression.' ” Ante, at 618 (quot-
ing Hudgens v. NLRB, 424 U. S. 507, 520 (1976)). If, how-
ever, this Court is to apply the First Amendment consist-
ently with the democratic values embodied within that
Amendment, that kind of statement must refect a rule of
thumb applicable only in certain circumstances. See Reed,
576 U. S., at 176 (Breyer, J., concurring in judgment); id.,
at 183 (Kagan, J., concurring in judgment) (“We can adminis-
ter our content-regulation doctrine with a dose of common
sense, so as to leave standing laws that in no way implicate
its intended function”).
Indeed, that must be so given that this Court's First
Amendment jurisprudence itself ties the constitutional pro-
tection speech receives to the content or purpose of that
speech. The Court has held that entire categories of
speech—for example, obscenity, fraud, and speech integral
to criminal conduct—are generally unprotected by the First
Amendment entirely because of their content. See Miller
v. California, 413 U. S. 15, 23 (1973) (obscenity); Virginia
Bd. of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U. S. 748, 771 (1976) (fraud); Giboney v. Empire
Storage & Ice Co., 336 U. S. 490, 498 (1949) (speech integral
to criminal conduct). As Justice Stevens pointed out, “our
entire First Amendment jurisprudence creates a regime
based on the content of speech.” R. A. V. v. St. Paul, 505
U. S. 377, 420 (1992) (opinion concurring in judgment); see
id., at 420–422 (providing examples). Given that this Court
looks to the nature and content of speech to determine
whether, or to what extent, the First Amendment protects it,
it makes little sense to treat every content-based distinction
Congress has made as presumptively unconstitutional.
Moreover, it is no answer to claim that this Court's prece-
dents categorically require such an analysis. See ante, at 621,
n. 5 (plurality opinion). Our First Amendment jurispru-
dence has always been contextual and has defed straightfor-

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ward reduction to unyielding categorical rules. The idea
that
broad language in any one case (even Reed) has categori-
cally determined how content discrimination should be
applied in every single context is both wrong and refects
an oversimplifcation and overreading of our precedent.
The diversity of approaches in this very case underscores
the point that the law here is far from settled. Indeed,
the plurality itself disclaims the idea that its rule would
apply to unsettle “traditional or ordinary economic regu-
lation of commercial activity,” indicating that the plural-
ity presumably thinks there are some outer bounds to
its broad language. Ante, at 620. The question here is
whether the Court's general statements about content dis-
crimination triggering strict scrutiny, including in Reed,
make sense as applied in this context. As I have explained,
they do not.
That said, I am not arguing for the abolition of the concept
of “content discrimination.” There are times when using
content discrimination to trigger scrutiny is eminently rea-
sonable. Specifcally, when content-based distinctions are
used as a method for suppressing particular viewpoints or
threatening the neutrality of a traditional public forum, con-
tent discrimination triggering strict scrutiny is generally ap-
propriate. See Reed, 576 U. S., at 176 (Breyer, J., concur-
ring in judgment); id., at 182–183 (Kagan, J., concurring in
judgment).
Neither of those situations is present here. Outside of
these circumstances, content discrimination can at times help
determine the strength of a government justifcation or iden-
tify a potential interference with the free marketplace of
ideas. See id., at 176–177 (Breyer, J., concurring in judg-
ment). But, as I have explained, this case is not about pro-
tecting the marketplace of ideas. It is not about the forma-
tion of public opinion or the transmission of the people's will
to elected representatives. It is fundamentally about a
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III
I
would examine the validity of the regulation at issue
here using a First Amendment standard that (unlike strict
scrutiny) does not strongly presume that a regulation that
affects speech is unconstitutional. However, given that the
government-debt exception does directly impact a means of
communication, the appropriate standard requires a closer
look at the restriction than does a traditional “rational basis”
test. A proper inquiry should examine the seriousness of
the speech-related harm, the importance of countervailing
objectives, the likelihood that the restriction will achieve
those objectives, and whether there are other, less restric-
tive ways of doing so. Narrow tailoring in this context,
however, does not necessarily require the use of the
least-restrictive means of furthering those objectives. Cf.
Ward v. Rock Against Racism, 491 U. S. 781, 797–799,
and n. 6 (1989) (explaining that outside of strict scrutiny re-
view, narrow tailoring does not require the use of least-
restrictive-means analysis). That inquiry ultimately evalu-
ates a restriction's speech-related harms in light of its
justifcations. We have typically called this approach “in-
termediate scrutiny,” though we have sometimes referred to
it as an assessment of “ft,” sometimes called it “proportion-
ality,” and sometimes just applied it without using a label.
See United States v. Alvarez, 567 U. S. 709, 730–731 (2012)
(Breyer, J., concurring in judgment); Reed, 576 U. S., at
179 (same).
Applying this Court's intermediate scrutiny analysis, I
would begin by asking just what the First Amendment harm
is here. As Justice Kavanaugh notes, the government-
debt exception provides no basis for undermining the gen-
eral cell phone robocall restriction. Ante, at 622–623. In-
deed, looking at the government-debt exception in context,
we can see that the practical effect of the exception,
taken together with the rest of the statute, is to put non-

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government debt collectors at a disadvantage. Their speech
operates
in the same sphere as government-debt collection
speech, communicates comparable messages, and yet does
not have the beneft of a particular instrument of communica-
tion (robocalls). While this is a speech-related harm, debt-
collection speech is both commercial and highly regulated.
See Brief for Petitioners 20–21 (describing multiple restric-
tions imposed by the Fair Debt Collection Practices Act on
communications by debt collectors in the course of debt col-
lection). The speech-related harm at issue here—and any
related effect on the marketplace of ideas—is modest.
What, then, is the justifcation for this harm? The pur-
pose of the exception is to further the protection of the public
fsc. See supra, at 638. That protection is an important
governmental interest. Private debt typically involves pri-
vate funds; public debt typically involves funds that, in prin-
ciple, belong to all of us, and help to implement numerous
governmental policies that the people support.
Finally, is the exception narrowly tailored? Its limited
scope shows that it is. Congress has minimized any speech-
related harm by tying the exception directly to the Govern-
ment's interest in preserving the public fsc. The statutory
text makes clear that calls will only fall within the bounds
of that exception if they are “made solely to collect” Govern-
ment debt. 47 U. S. C. § 227(b)(1)(A)(iii) (emphasis added).
Thus, the exception cannot be used to permit communica-
tions unrelated or less directly related to that public fscal
interest.
The upshot is that the government-debt exception, taken
in context, inficts some speech-related harm. But the
harm, as I have explained, is related not to public efforts to
develop ideas or transmit them to the Government, but to
the Government's response to those efforts, which here takes
the form of highly regulated commercial communications.
Moreover, there is an important justifcation for that harm,

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and the exception is narrowly tailored to further that goal.
Given
those facts, the government-debt exception should
survive intermediate First Amendment scrutiny.
IV
For the reasons described above, I would fnd that the
gover nment-debt excepti on does not v i olate the First
Amendment. A majority of the Court, however, has con-
cluded the contrary. It must thus decide whether that pro-
vision is severable from the rest of the statute. As to that
question, I agree with Justice Kavanaugh's conclusion that
the provision is severable. Accordingly, I respectfully con-
cur in the judgment with respect to severability and dissent
in part.
Justice Gorsuch, with whom Justice Thomas joins as
to Part II, concurring in the judgment in part and dissenting
in part.
I agree with Justice Kavanaugh that the provision of
the Telephone Consumer Protection Act before us violates
the First Amendment. Respectfully, however, I disagree
about why that is so and what remedial consequences
should follow.
I
The TCPA is full of regulations on robocalls. The statute
limits robocalls to residential landlines, hospitals, emergency
numbers, and business lines. The only provision before us
today, however, concerns robocalls to cell phones, mobile de-
vices, or “any service for which the called party is charged
for the call.” 47 U. S. C. § 227(b)(1)(A)(iii). Before the law's
enactment, many cell phone users had to pay for each call,
so they suffered not only the pleasure of robocalls, but also
the privilege of paying for them. In 1991, Congress sought
to address the problem by banning nearly all unsolicited ro-
bocalls to cell phones.

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But much has changed since then. Now, cell phone users
of
ten pay a fat monthly fee for unlimited minutes, reducing
the cost (if not the annoyance) of hearing from robocallers.
New weapons in the fght against robocallers have emerged,
too—including tools that allow consumers to more easily
screen and block unwanted calls. Perhaps in recognition of
these changes, Congress relaxed the ban on cell phone robo-
callers in 2015. Today, unsolicited calls are permitted if
they are “made solely to collect a debt owed to or guaranteed
by the United States.” Ibid.
That leaves robocallers no shortage of material. The gov-
ernment backs millions upon millions of loans—student
loans, home mortgages, veterans' loans, farm loans, business
loans. When it comes to student loans alone, the govern-
ment guarantees more than $150 billion in private loans in-
volving over 7 million individuals. And, to be clear, it's not
just the government that's allowed to call about these loans.
Private lenders and debt collectors are free to send in the
robots too, so long as the debt at issue is ultimately guaran-
teed by the government.
Today's plaintiffs wish to use robocalls for something dif-
ferent: to campaign and solicit donations for political causes.
The plaintiffs allege that the law's continuing ban on calls
like theirs violates the First Amendment, and on the
main points of their argument the parties agree. First,
no one doubts the TCPA regulates speech. Second, every-
one accepts that restrictions on speech—no matter how
evenhanded—must be justifed by at least a “ `signifcant
governmental interest.' ” Ward v. Rock Against Racism,
491 U. S. 781, 791 (1989). And, third, the parties agree that
laws that go further by regulating speech on the basis of
content invite still greater scrutiny. When the government
seeks to censor speech based on its content, favoring certain
voices and punishing others, its restrictions must satisfy
“strict scrutiny”—meaning they must be justifed by inter-
ests that are “compelling,” not just signifcant. After all, a

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constitutional right would hardly be needed to protect popu-
lar
speakers; the First Amendment does its real work in giv-
ing voice to those a majority would silence. See McCullen
v. Coakley, 573 U. S. 464, 477–478 (2014); but see ante, at 642
(Breyer, J., concurring in judgment with respect to sever-
ability and dissenting in part) (seeking to overturn precedent
and allow the government sometimes to impose content-
based restrictions to “respon[d] to the public will”).
In my view, the TCPA's rule against cellphone robocalls
is a content-based restriction that fails strict scrutiny. The
statute is content-based because it allows speech on a subject
the government favors (collecting its debts) while banning
speech on other disfavored subjects (including political mat-
ters). Cf. ante, at 646–648 (opinion of Breyer, J.) (mistak-
enly characterizing the content discrimination as “not about”
political activities). The statute fails strict scrutiny because
the government offers no compelling justifcation for its pro-
hibition against the plaintiffs' political speech. In fact, the
government does not dispute that, if strict scrutiny applies,
its law must fall.
It's easy enough to see why the government makes no ef-
fort to satisfy strict scrutiny. Now that most cell phone
plans do not charge by the call, the only justifcation the gov-
ernment cites for its robocall ban is its interest in protecting
consumer privacy. No one questions that protecting con-
sumer privacy qualifes as a legitimate and “genuine” inter-
est for the government to pursue. Ante, at 614–615, 622.
But before the government may censor the plaintiffs' speech
based on its content, it must point to a compelling interest.
And if the government thinks consumer privacy interests
are insuffcient to overcome its interest in collecting debts,
it's hard to see how the government might invoke consumer
privacy interests to justify banning private political speech.
Especially when consumers seem to fnd debt collection ef-
forts particularly intrusive: Year after year, the Federal Trade

Cite
as: 591 U. S. 610 (2020)
651
Opinion of Gorsuch, J.
Commission receives more complaints about the debt collec-
ti
on industry than any other. The nature and breadth of the
law's exception calls into question the necessity of its rule.
Much precedent supports this course. As this Court has
long explained, a law's failure to address a wide swath of
conduct implicating its supposed concern “diminish[es] the
credibility of the government's [stated] rationale for [its] re-
strict[ion].” City of Ladue v. Gilleo, 512 U. S. 43, 52 (1994).
Or, as the Court has elsewhere put it, the compellingness of
the government's putative interest is undermined when its
law “leaves appreciable damage to [the] supposedly vital in-
terest unprohibited.” Church of Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U. S. 520, 547 (1993) (internal quotation
marks omitted); see also Gonzales v. O Centro Espírita Be-
nefcente União do Vegetal, 546 U. S. 418, 433 (2006). The
insight is simple: A law's failure to cover “signifcant tracts
of conduct implicating [its] putatively compelling interes[t]
can raise . . . the inference that the . . . claimed interest isn't
. . . so compelling after all.” Yellowbear v. Lampert, 741
F. 3d 48, 60 (CA10 2014).
That's not to say the inference is irrebuttable. The gov-
ernment might, for example, show that the apparent incon-
sistency in its law is justifed by some qualitative or quanti-
tative difference between the speech it favors and the speech
it disfavors. See id., at 61. So if debt collection robocalls
were less invasive of consumer privacy than other kinds of
robocalls, or if they were inherently rare, an exception per-
mitting debt collection calls might not undermine the gov-
ernment's claimed interest in banning other calls. But
the government, a party with every incentive and ample
resources, has not even tried to suggest conditions like
those are present here, and underst andably so: The
government-debt exception allows a seemingly infnite num-
ber of robocalls of the type consumers appear to fnd most
invasive.

652 B
ARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of Gorsuch, J.
II
W
ith a First Amendment violation proven, the question
turns to remedy. Because the challenged robocall ban un-
constitutionally infringes on their speech, I would hold that
the plaintiffs are entitled to an injunction preventing its en-
forcement against them. This is the traditional remedy for
proven violations of legal rights likely to work irreparable
injury in the future. Preventing the law's enforcement
against the plaintiffs would fully address their injury. And
going this far, but no further, would avoid “short circuit[ing]
the democratic process” by interfering with the work of Con-
gress any more than necessary. Washington State Grange
v. Washington State Republican Party, 552 U. S. 442, 451
(2008).
Justice Kavanaugh's opi ni on pursues a di fferent
course. Invoking “severability doctrine,” it declares the
government-debt exception void and severs it from the stat-
ute. As revised by today's decision, the law prohibits nearly
all robocalls to cell phones, just as it did back in 1991. In
support of this remedy, we are asked to consider cases in-
volving equal protection violations, where courts have some-
times solved the problem of unequal treatment by leveling
others “down” to the plaintiff 's status rather than by leveling
the plaintiff “up” to the status others enjoy.
I am doubtful of our authority to rewrite the law in this
way. Many have questioned the propriety of modern sever-
ability doctrine,* and today's case illustrates some of the rea-
sons why. To start, it's hard to see how today's use of sever-
ability doctrine qualifes as a remedy at all: The plaintiffs
have not challenged the government-debt exception, they
*See, e. g., Seila Law LLC v. Consumer Financial Protection Bureau,
591 U. S. 197, 251–261 (2020) (Thomas, J., concurring in part and dissenting
in part); Harrison, Severability, Remedies, and Constitutional Adjudica-
tion, 83 Geo. Wash. L. Rev. 56 (2014); see also Movsesian, Severability in
Statutes and Contracts, 30 Ga. L. Rev. 41, 41–42 (1995) (collecting aca-
demic criticism of severability doctrine).

Cite
as: 591 U. S. 610 (2020)
653
Opinion of Gorsuch, J.
have not sought to have it severed and stricken, and far from
placi
ng “unequal treatment” at the “heart of their suit,” they
have never complained of unequal treatment as such. Ante,
at 634. The plaintiffs point to the government-debt excep-
tion only to show that the government lacks a compelling
interest in restricting their speech. It isn't even clear the
plaintiffs would have standing to challenge the government-
debt exception. They came to court asserting a right to
speak, not a right to be free from other speakers. Severing
and voiding the government-debt exception does nothing to
address the injury they claim; after today's ruling, federal
law bars the plaintiffs from using robocalls to promote politi-
cal causes just as stoutly as it did before. What is the point
of fghting this long battle, through many years and all the
way to the Supreme Court, if the prize for winning is no
relief at all?
A severance remedy not only fails to help the plaintiffs, it
harms strangers to this suit. Just fve years ago, Congress
expressly authorized robocalls to cell phones to collect
government-backed debts. Yet, today, the Court reverses
that decision and outlaws the entire industry. It is highly
unusual for judges to render unlawful conduct that Congress
has explicitly made lawful—let alone to take such an extraor-
dinary step without warning to those who have ordered their
lives and livelihoods in reliance on the law, and without af-
fording those individuals any opportunity to be heard. This
assertion of power strikes me as raising serious separation
of powers questions, and it marks no small departure from
our usual reliance on the adversarial process.
Nor does the analogy to equal protection doctrine solve
the problem. That doctrine promises equality of treatment,
whatever that treatment may be. The First Amendment
isn't so neutral. It pushes, always, in one direction: against
governmental restrictions on speech. Yet, somehow, in the
name of vindicating the First Amendment, our remedial
course today leads to the unlikely result that not a single

654 B
ARR v. AMERICAN ASSN. OF POLITICAL
CONSULTANTS, INC.
Opinion of Gorsuch, J.
person will be allowed to speak more freely and, instead,
more
speech will be banned.
In an effort to mitigate at least some of these problems,
Justice Kavanaugh suggests that the ban on government-
debt collection calls announced today might be applied only
prospectively. See ante, at 634, n. 13. But prospective de-
cisionmaking has never been easy to square with the judicial
power. See, e. g., James B. Beam Distilling Co. v. Georgia,
501 U. S. 529, 548–549 (1991) (Scalia, J., concurring in judg-
ment) ( judicial power is limited to “discerning what the law
is, rather than decreeing . . . what it will tomorrow be”).
And a holding that shields only government-debt collection
callers from past liability under an admittedly unconstitu-
tional law would wind up endorsing the very same kind of
content discrimination we say we are seeking to eliminate.
Unable to solve the problems associated with its preferred
severance remedy, today's decision seeks at least to identify
“harm[s]” associated with mine. Cf. ante, at 635 (opinion of
Kavanaugh, J.). In particular, we are reminded that grant-
ing an injunction in this case would allow the plaintiffs' (un-
popular) speech, and that could induce others to seek injunc-
tions of their own, resulting in still more (unpopular) speech.
But this “harm” is hardly comparable to the problems associ-
ated with using severability doctrine: Having to tolerate un-
wanted speech imposes no cognizable constitutional injury
on anyone; it is life under the First Amendment, which is
almost always invoked to protect speech some would rather
not hear.
***
In the end, I agree that 47 U. S. C. § 227(b)(1)(A)(iii) vio-
lates the First Amendment, though not for the reasons Jus-
tice Kavanaugh offers. Nor am I able to support the rem-
edy the Court endorses today. Respectfully, if this is what
modern “severability doctrine” has become, it seems to me
all the more reason to reconsider our course.

OCTOBER
TERM, 2019
655
Syllabus
COLORADO DEPARTMENT OF STATE v. BACA et al.
certiorari
to the united states court of appeals for
the tenth circuit
No. 19–518. Argued May 13, 2020—Decided July 6, 2020
Held: The judgment of the Court of Appeals, which held that Colorado's
faithless elector law violates the Constitution, is reversed for the rea-
sons stated in Chiafalo v. Washington, 591 U. S. 578 (2020).
935 F. 3d 887, reversed.
Philip J. Weiser, Attorney General of Colorado, argued the
cause for petitioner. With him on the brief were Eric R.
Olson, Solicitor General, Grant T. Sullivan and Michael D.
McMaster, Assistant Solicitors General, LeeAnn Morrill,
First Assistant Attorney General, and Michael Kotlarczyk,
Assistant Attorney General.
Jason Harrow argued the cause for respondents. With
him on the briefs were L. Lawrence Lessig, Sumeer Singla,
Daniel A. Brown, Hunter M. Abell, Jonah O. Harrison, J.
Max Rosen, and Jason B. Wesoky.*
*Briefs of amici curiae urging reversal were fled for the State of South
Dakota et al. by Jason R. Ravnsborg, Attorney General of South Dakota,
and Paul S. Swedlund, Assistant Attorney General, and by the Attorneys
General for their respective jurisdictions as follows: Steve Marshall of
Alabama, Kevin G. Clarkson of Alaska, Mark Brnovich of Arizona, Xavier
Becerra of California, William Tong of Connecticut, Kathy Jennings of
Delaware, Karl A. Racine of the District of Columbia, Ashley Moody of
Florida, Christopher M. Carr of Georgia, Clare E. Connors of Hawaii,
Lawrence Wasden of Idaho, Kwame Raoul of Illinois, Curtis T. Hill, Jr.,
of Indiana, Tom Miller of Iowa, Daniel Cameron of Kentucky, Jeff Landry
of Louisiana, Aaron M. Frey of Maine, Brian E. Frosh of Maryland,
Maura Healey of Massachusetts, Dana Nessel of Michigan, Keith Ellison
of Minnesota, Lynn Fitch of Mississippi, Eric S. Schmitt of Missouri, Tim-
othy C. Fox of Montana, Doug J. Peterson of Nebraska, Aaron D. Ford of
Nevada, Gordon MacDonald of New Hampshire, Gurbir S. Grewal of New
Jersey, Hector Balderas of New Mexico, Letitia James of New York, Josh
Stein of North Carolina, Wayne Steneh jem of North Dakota, Dave Yost of

656 COLORADO
DEPT. OF STATE v. BACA
Per Curiam
Per Curiam.
The
judgment of the United States Court of Appeals for
the Tenth Circuit is reversed for the reasons stated in Chia-
falo v. Washington, 591 U. S. 578 (2020).
It is so ordered.
Justice Sotomayor took no part in the decision of this
case.
Justice Thomas concurs in the judgment for the reasons
stated in his separate opinion in Chiafalo v. Washington, 591
U. S. 578, 597–609 (2020).
Ohio, Mike Hunter of Oklahoma, Ellen Rosenblum of Oregon, Josh D. Sha-
piro of Pennsylvania, Peter F. Neronha of Rhode Island, Alan Wilson of
South Carolina, Herbert H. Slatery III of Tennessee, Sean D. Reyes of
Utah, Thomas J. Donovan of Vermont, Mark R. Herring of Virginia, Pat-
rick Morrisey of West Virginia, Josh L. Kaul of Wisconsin, and Bridget
Hill of Wyoming; for the Campaign Legal Center et al. by Tobias S. Loss-
Eaton, Paul M. Smith, Adav Noti, and David Kolker; for the Eagle
Forum Education & Legal Defense Fund by Andrew L. Schlafy; for the
National Conference of Commissioners on Uniform State Laws by James
Bopp, Jr., Richard E. Coleson, Peter F. Langrock, Daniel Robbins, Susan
Kelly Nichols, and Timothy J. Berg; for the Republican National Commit-
tee by Michael E. Toner, Lee E. Goodman, and Stephen J. Obermeier; for
Robert W. Bennett by J. Samuel Tenenbaum, Jeffrey T. Green, and Sarah
O'Rourke Schrup; for Mary Beth Corsentino et al. by James G. Sawtelle
and Christopher M. Jackson; for Robert M. Hardaway by Jennifer Gil-
bert; and for Michael T. Morley by Mr. Morley, pro se.
Briefs of amici curiae urging affrmance were fled for the Independ-
ence Institute by David B. Kopel and Joseph G. S. Greenlee; for Jerry H.
Goldfeder by Mr. Goldfeder, pro se; and for Michael L. Rosin et al. by
Peter K. Stris, Michael N. Donofrio, and Bridget C. Asay.
Briefs of amici curiae were fled for Citizens for Self-Governance by
Rita M. Dunaway; for the Colorado Democratic Party by Paul R. Franke
III; for the Colorado Republican Committee by Julian R. Ellis, Jr.; for
the Making Every Vote Count Foundation by Jerrold J. Ganzfried, Reed
E. Hundt, and Thea A. Cohen; for Edward B. Foley by Jessica Ring
Amunson and Zachary C. Schauf; for Vinz Koller by Andrew J. Dhuey;
and for Derek T. Muller by Ian Speir.

657OCTOBER
TERM, 2019
Syllabus
LITTLE SISTERS OF THE POOR SAINTS PETER AND
P
AUL HOMEv.PENNSYLVANIA et al.
certiorari to the united states court of appeals for
the third circuit
No. 19–431. Argued May 6, 2020—Decided July 8, 2020*
The Patient Protection and Affordable Care Act of 2010 (ACA) requires
covered employers to provide women with “preventive care and screen-
ings” without “any cost sharing requirements,” and relies on Preventive
Care Guidelines (Guidelines) “supported by the Health Resources and
Services Administration” (HRSA) to determine what “preventive care
and screenings” includes. 42 U. S. C. § 300gg–13(a)(4). Those Guide-
lines mandate that health plans provide coverage for all Food and Drug
Administration approved contraceptive methods. When the Depart-
ments of Health and Human Services, Labor, and the Treasury (Depart-
ments) incorporated the Guidelines, they also gave HRSA the discretion
to exempt religious employers, such as churches, from providing contra-
ceptive coverage. Later, the Departments also promulgated a rule ac-
commodating qualifying religious organizations that allowed them to
opt out of coverage by self-certifying that they met certain criteria to
their health insurance issuer, which would then exclude contraceptive
coverage from the employer's plan and provide participants with sepa-
rate payments for contraceptive services without imposing any cost-
sharing requirements.
Religious entities challenged the rules under the Religious Freedom
Restoration Act of 1993 (RFRA). In Burwell v. Hobby Lobby Stores,
Inc., 573 U. S. 682, this Court held that the contraceptive mandate sub-
stantially burdened the free exercise of closely held corporations with
sincerely held religious objections to providing their employees with
certain methods of contraception. And in Zubik v. Burwell, 578 U. S.
403, the Court opted to remand without deciding the RFRA question in
cases challenging the self-certification accommodation so that the par-
ties could develop an approach that would accommodate employers' con-
cerns while providing women full and equal coverage.
Under Zubik's direction and in light of Hobby Lobby's holding, the
Departments promulgated two interim final rules (IFRs). The first sig-
nificantly expanded the church exemption to include an employer that
*Together with 19–454,Trump, President of the United States,et al.v.
Pennsylvania et al.,on certiorari to the same Court.

658 LITTLE
SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Syllabus
“objects . . . , based on its sincerely held religious beliefs,” “to its estab-
l
ishing, maintaining, providing, offering, or arranging [for] coverage or
payments for some or all contraceptive services.” 82 Fed. Reg. 47812.
The second created a similar “moral exemption” for employers with
sincerely held moral objections to providing some or all forms of con-
traceptive coverage. The Departments requested post-promulgation
comments on both IFRs.
Pennsylvania sued, alleging that the IFRs were procedurally and sub-
stantively invalid under the Administrative Procedure Act (APA).
Af ter the Depar tments issued fi na l r u les, respondi ng to post-
promulgation comments but leaving the IFRs largely intact, New Jer-
sey joined Pennsylvania's suit. Together they fled an amended com-
plaint, alleging that the rules were substantively unlawful because the
Depar tments lacked statutory author ity under either the ACA or
RFRA to promulgate the exemptions. They also argued that the rules
were procedurally defective because the Departments failed to comply
with the APA's notice and comment procedures. The District Court
issued a preliminary nationwide injunction against the implementation
of the fnal rules, and the Third Circuit affrmed.
Held:
1. The Departments had the authority under the ACA to promulgate
the religious and moral exemptions. Pp. 675–683.
(a) As legal authority for both exemptions, the Departments invoke
§ 300gg–13(a)(4), which states that group health plans must provide
women with “preventive care and screenings . . . as provided for in
comprehensive guidelines supported by [HRSA].” The pivotal phrase,
“as provided for,” grants sweeping authority to HRSA to defne the
preventive care that applicable health plans must cover. That same
grant of authority empowers it to identify and create exemptions from
its own Guidelines. The “fundamental principle of statutory interpre-
tation that `absent provision[s] cannot be supplied by the courts,' ” Rot-
kiske v. Klemm, 589 U. S. 8, 14, applies not only to adding terms not
found in the statute, but also to imposing limits on an agency's discretion
that are not supported by the text, see Watt v. Energy Action Ed. Foun-
dation, 454 U. S. 151, 168. Concerns that the exemptions thwart Con-
gress' intent by making it signifcantly harder for interested women to
obtain seamless access to contraception without cost sharing cannot jus-
tify supplanting the text's plain meaning. Even if such concerns are
legitimate, they are more properly directed at the regulatory mecha-
nism that Congress put in place. Pp. 675–680.
(b) Because the ACA provided a basis for both exemptions, the
Court need not decide whether RFRA independently compelled the De-

Cite
as: 591 U. S. 657 (2020)
659
Syllabus
partments' solution. However, the argument that the Departments
cou
ld not consider RFRA at all is without merit. It is clear from the
face of the statute that the contraceptive mandate is capable of violating
RFRA. The ACA does not explicitly exempt RFRA, and the regula-
tions implementing the contraceptive mandate qualify as “Federal law”
or “the implementation of [Federal] law” under RFRA. § 2000bb–3(a).
Additionally, this Court stated in Hobby Lobby that the mandate vio-
lated RFRA as applied to entities with complicity-based objections.
And both Hobby Lobby and Zubik instructed the Departments to con-
sider RFRA going forward. Moreover, in light of the basic require-
ments of the rulemaking process, the Departments' failure to discuss
RFRA at all when formulating their solution would make them suscepti-
ble to claims that the rules were arbitrary and capricious for failing to
consider an important aspect of the problem. Pp. 680–683.
2. The rules promulgating the exemptions are free from procedural
defects. Pp. 683–687.
(a) Respondents claim that because the fnal rules were preceded
by a document entitled “Interim Final Rules with Request for Com-
ments” instead of “General Notice of Proposed Rulemaking,” they are
procedurally invalid under the APA. The IFRs' request for comments
readily satisfed the APA notice requirements. And even assuming
that the APA requires an agency to publish a document entitled “notice
of proposed rulemaking,” there was no “prejudicial error” here, 5
U. S. C. § 706. Pp. 683–684.
(b) Pointing to the fact that the fnal rules made only minor alter-
ations to the IFRs, respondents also contend that the fnal rules are
procedurally invalid because nothing in the record suggests that the
Departments maintained an open mind during the post-promulgation
process. The “open-mindedness” test has no basis in the APA. Each
of the APA's procedural requirements was satisfed: The IFRs provided
suffcient notice, § 553(b); the Departments “g[a]ve interested persons an
opportunity to participate in the rule making through submission of
written data, views or arguments,” § 553(c); the fnal rules contained “a
concise general statement of their basis and purpose,” ibid.; and they
were published more than 30 days before they became effective, § 553(d).
Pp. 684–687.
930 F. 3d 543, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Alito, Gorsuch, and Kavanaugh, JJ., joined. Alito, J., fled a con-
curring opinion, in which Gorsuch, J., joined, post, p. 687. Kagan, J.,
fled an opinion concurring in the judgment, in which Breyer, J., joined,

660 LITTLE
SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Syllabus
post, p. 704. Ginsburg, J., fled a dissenting opinion, in which Soto-
ma
yor, J., joined, post, p. 710.
Solicitor General Francisco argued the cause for petition-
ers in No. 19–454. With him on the briefs were Assistant
Attorney General Hunt, Deputy Solicitor General Wall,
Deputy Assistant Attorney General Mooppan, Christopher
G. Michel, Benjamin W. Snyder, Sharon Swingle, Lowell V.
Sturgill, Jr., and Karen Schoen. Paul D. Clement argued
the cause for petitioner in No. 19–431. With him on the
briefs were Erin E. Murphy, Andrew C. Lawrence, Mark
L. Rienzi, Eric C. Rassbach, Lori H. Windham, and Diana
M. Verm.
Michael J. Fischer, Chief Deputy Attorney General of
Pennsylvania, argued the cause for respondents in both
cases. With him on the brief were Josh Shapiro, Attorney
General of Pennsylvania, and Aimee D. Thomson and Jacob
B. Boyer, Deputy Attorneys General, Gurbir S. Grewal, At-
torney General of New Jersey, Glenn J. Moramarco, Assist-
ant Attorney General, and Elspeth Hans and Eric L. Apar,
Deputy Attorneys General.†
†Briefs of amici curiae urging reversal in both cases were fled for the
State of Texas et al. by Ken Paxton, Attorney General of Texas, Jeffrey
C. Mateer, First Assistant Attorney General, Kyle D. Hawkins, Solicitor
General, Jason R. LaFond, Assistant Solicitor General, and Bethany C.
Spare, Assistant Attorney General, and by the Attorneys General for their
respec tive St ates as fol lows: Stev e Marsha ll of Alabama, Kev in G.
Clarkson of Alaska, Mark Brnovich of Arizona, Leslie Rutledge of Arkan-
sas, Ashley Moody of Florida, Christopher M. Carr of Georgia, Derek
Schmidt of Kansas, Daniel Cameron of Kentucky, Jeff Landry of Louisi-
ana, Lynn Fitch of Mississippi, Eric Schmitt of Missouri, Timothy C. Fox
of Montana, Douglas J. Peterson of Nebraska, Mike Hunter of Oklahoma,
Alan Wilson of South Carolina, Jason Ravnsborg of South Dakota, Her-
bert Slatery III of Tennessee, Sean Reyes of Utah, and Patrick Morrisey of
West Virginia; for the American Center for Law and Justice by Jay Alan
Sekulow, Stuart J. Roth, Jordan Sekulow, Walter M. Weber, Francis J.
Manion, Geoffrey R. Surtees, Edward L. White III, and Erik M. Zimmer-
man; for the Catholic Association Foundation et al. by Andrea Picciotti-
Bayer; for the Catholic Beneft Association by L. Martin Nussbaum and

Cite
as: 591 U. S. 657 (2020)
661
Opinion of the Court
Justice Thomas delivered the opinion of the Court.
In
these consolidated cases, we decide whether the Gov-
ernment created lawful exemptions from a regulatory re-
Ian Speir; for the Cato Institute et al. by Ilya Shapiro, Josh Blackman,
and Howard Slugh; for the Center for Constitutional Jurisprudence by
John C. Eastman and Anthony T. Caso; for Christian Business Owners
Supporting Religious Freedom by Er in El izabeth Mersino, Willi am
Wagner, and Katherine Henry; for the Christian Legal Society et al. by
Matthew T. Martens and Daniel P. Kearney, Jr.; for Constitutional Law
Scholars by Miles E. Coleman; for the First Liberty Institute by Thomas
R. McCarthy, Kelly J. Shackel ford, Hiram S. Sasser III, and Michael D.
Berry; for the Foundation for Moral Law by Matthew J. Clark; for the
Independent Women's Law Center by David H. Thompson and Nicole
Frazer Reaves; for Inner Life Fund et al. by James L. Hirsen, Deborah J.
Dewart, and Tami Fitzgerald; for the International Society for Krishna
Consciousness, Inc., et al. by Gene C. Schaerr and Erik S. Jaffe; for the
Knights of Columbus by Eric N. Kniffn; for the March for Life et al. by
Kristen K. Waggoner, John J. Bursch, David A. Cortman, Rory T. Gray,
and Kevin H. Theriot; for the New Civil Liberties Alliance by Richard A.
Samp and John J. Vecchione; for Residents and Families of Residents at
Homes of the Little Sisters of the Poor by Dwight G. Duncan and Colbe
Mazzarella; for the United States Conference of Catholic Bishops et al. by
Alexander Dushku and R. Shawn Gunnarson; for Women Scholars by
Helen M. Alvaré, pro se; for Nicholas Bagley et al. by Donald Burke; for
Douglas Laycock by Scott A. Keller; for Michael Stokes Paulsen et al. by
John D. Adams, Brian D. Schmalzbach, and John P. O'Herron; and for
161 Members of Congress by Blaine H. Evanson.
Briefs of amici curiae urging affrmance in both cases were fled for the
Commonwealth of Massachusetts et al. by Maura Healey, Attorney Gen-
eral of Massachusetts, Elizabeth N. Dewar, State Solicitor, and Julia E.
Kobick and Jon Burke, Assistant Attorneys General, Xavier Becerra, At-
torney General of California, Michael J. Mongan, Solicitor General, Aimee
Feinberg, Deputy Solicitor General, Kathleen Boergers, Supervising Dep-
uty Attorney General, Karli Eisenberg, Deputy Attorney General, and
Kristin A. Liska, Associate Deputy Solicitor General, and by the Attor-
neys General for their respective jurisdictions as follows: Philip J. Weiser
of Colorado, William Tong of Connecticut, Kathleen Jennings of Dela-
ware, Karl A. Racine of the District of Columbia, Clare E. Connors of
Hawaii, Kwame Raoul of Illinois, Aaron M. Frey of Maine, Brian E.
Frosh of Maryland, Dana Nessel of Michigan, Keith Ellison of Minnesota,
Aaron D. Ford of Nevada, Hector Balderas of New Mexico, Letitia James

662 LITTLE
SISTERS OF THE POOR SAINTS PETER
AND PAUL HOME v. PENNSYLVANIA
Opinion of the Court
quirement implementing the Patient Protection and Afford-
able
Care Act of 2010 (ACA), 124 Stat. 119. The re-
quirement at issue obligates certain employers to provide
contraceptive coverage to their employees through their
of New York, Joshua H. Stein of North Carolina, Ellen F. Rosenblum of
Oregon, Peter F. Neronha of Rhode Island, Thomas J. Donovan, Jr., of
Vermont, Mark R. Herring of Virginia, and Robert W. Ferguson of Wash-
ington; for the City of Oakland et al. by Jonathan B. Miller, Lyndsey
Olson, Mark A. Flessner, Paula Boggs Muething, Jessica M. Scheller,
Ronald C. Lewis, Michael P. May, Leslie J. Girard, Dennis J. Herrera,
James R. Williams, Peter S. Holmes, John Marshall Jones, and Michael
Jenkins; for Administrative Law Scholars by Elliott Schulder and Anna
Kraus; for the American Academy of Pediatrics by Devi M. Rao; for the
American Association of University Women et al. by James R. Sigel and
Jamie A. Levitt; for the American Civil Liberties Union et al. by Brigitte
Amiri, Louise Melling, David D. Cole, Daniel Mach, Witold J. Walczak,
and Jeanne LoCicero; for the American College of Obstetricians and Gyne-
cologists et al. by Bruce H. Schneider; for Catholics for Choice et al. by
B. Jesse Hill; for the Center for Health Law and Policy Innovation of
Harvard Law School et al. by Kevin Costello; for the Center for Inquiry,
Inc., et al. by Edward Tabash, Monica L. Miller, and Geoffrey T. Black-
well; for Child USA et al. by Leslie C. Griffn and Marci A. Hamilton;
for Church-State Scholars by Joshua Matz; for the Guttmacher Institute
by M. Duncan Grant; for Howard University School of Law, Civil and
Human Rights Clinic by Ajmel Quereshi; for the Lambda Legal Defense
and Education Fund, Inc., et al. by Jennifer C. Pizer, Omar Gonzalez-
Pagan, Camilla B. Taylor, and Jamie Gliksberg; for Legal Scholars by
Michael B. Kimberly, Matthew A. Waring, and Sarah P. Hogarth; for Mili-
tary Historians by Elizabeth B. Wydra, Brianne J. Gorod, and David H.
Gans; for the National League of Cities et al. by Lisa E. Soronen; for the
National Women's Law Center et al. by Jeffrey Blumen feld, Fatima Goss
Graves, Gretchen Borchelt, Sunu Chandy, Michelle Banker, and Candace
Gibson; for Planned Parenthood Federation of America et al. by Claudia
Hammerman; for Professors of Criminal Law et al. by Wesley R. Powell;
for Public Citizen by Nandan M. Joshi, Scott L. Nelson, and Allison M.
Zieve; for Religious and Civil-Rights Organizations by Richard B. Kat-
skee, Steven M. Freeman, Elliot M. Mincberg, Diana Kasdan, and Joel
Dodge; for the U. S. Women's Chamber of Commerce et al. by Leah
R. Bruno; for the Yale Law School Program for the Study of Reproduc-
tive Justice by Priscilla J. Smith; for Phyllis C. Borzi et al. by Elizabeth

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663
Opinion of the Court
group health plans. Though contraceptive coverage is not
required
by (or even mentioned in) the ACA provision at
issue, the Government mandated such coverage by promul-
gating interim fnal rules (IFRs) shortly after the ACA's
passage. This requirement is known as the contraceptive
mandate.
After six years of protracted litigation, the Departments
of Health and Human Services, Labor, and the Treasury (De-
partments)—which jointly administer the relevant ACA pro-
vision
1
—exempted certain employers who have religious and
conscientious objections from this agency-created mandate.
The Third Circuit concluded that the Departments lacked
statutory authority to promulgate these exemptions and af-
frmed the District Court's nationwide preliminary injunc-
tion. This decision was erroneous. We hold that the De-
partments had the authority to provide exemptions from the
regulatory contraceptive requirements for employers with
religious and conscientious objections. We accordingly re-
verse the Third Circuit's judgment and remand with instruc-
tions to dissolve the nationwide preliminary injunction.
I
The ACA's contraceptive mandate—a product of agency
regulation—has existed for approximately nine years. Liti-
gation surrounding that requirement has lasted nearly as
long. In light of this extensive history, we begin by summa-
rizing the relevant background.
Hopkins and Karen L. Handorf; for Martin S. Lederman by Mr. Leder-
man, pro se; and for 186 Members of the United States Congress by David
A. O'Neil.
Briefs of amici curiae were fled for Professors of Civil Procedure by
Jon Loevy and Steven Art; for the Public Interest Law Center et al. by
William Alden McDaniel, Jr., and Thomas W. Hazlett; and for Mila So-
honi by Christopher M. Egleson.
1
See 42 U. S. C. § 300gg–92; 29 U. S. C. § 1191c; 26 U. S. C. § 9833.

664 LITTLE
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Opinion of the Court
A
The
ACA requires covered employers to offer “a group
health plan or group health insurance coverage” that pro-
vides certain “minimum essential coverage.” 26 U. S. C.
§ 5000A(f )(2); §§ 4980H(a), (c)(2). Employers who do not
comply face hefty penalties, including potential fnes of $100
per day for each affected employee. §§ 4980D(a)–(b); see
also Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682, 696–
697 (2014). These cases concern regulations promulgated
under a provision of the ACA that requires covered employ-
ers to provide women with “preventive care and screen-
ings” without “any cost sharing requirements.” 42 U. S. C.
§ 300gg–13(a)(4).
2
The statute does not defne “preventive care and screen-
ings,” nor does it include an exhaustive or illustrative list of
such services. Thus, the statute itself does not explicitly
require coverage for any specifc form of “preventive care.”
Hobby Lobby, 573 U. S., at 697. Instead, Congress stated
that coverage must include “such additional preventive care
and screenings . . . as provided for in comprehensive guide-
l i nes suppor ted by the Hea lth Resources and Serv ices
Administration” (HRSA), an agency of the Department of
Health and Human Services (HHS). § 300gg–13(a)(4). At
the time of the ACA's enactment, these guidelines were not
yet written. As a result, no specifc forms of preventive
care or screenings were (or could be) referred to or incorpo-
rated by reference.
Soon after the ACA's passage, the Departments began
promulgating rules related to § 300gg–13(a)(4). But in doing
so, the Departments did not proceed through the notice and
2
The ACA exempts “grandfathered” plans from 42 U. S. C. § 300gg–
13(a)(4)—i. e., “those [plans] that existed prior to March 23, 2010, and that
have not made specifed changes after that date.” Burwell v. Hobby
Lobby Stores, Inc., 573 U. S. 682, 699 (2014). See §§ 18011(a), (e); 29 CFR
§ 2590.715–1251 (2019). As of 2018, an estimated 16 percent of employees
“with employer-sponsored coverage were enrolled in a grandfathered
group health plan.” 84 Fed. Reg. 5971 (2019).

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comment rulemaking process, which the Administrative Pro-
cedure
Act (APA) often requires before an agency's regu-
lation can “have the force and effect of law.” Perez v.
Mortgage Bankers Assn., 575 U. S. 92, 96 (2015) (internal
quotation marks omitted); see also 5 U. S. C. § 553. Instead,
the Departments invoked the APA's good cause exception,
which permits an agency to dispense with notice and com-
ment and promulgate an IFR that carries immediate legal
force. § 553(b)(3)(B).
The frst relevant IFR, promulgated in July 2010, primar-
ily focused on implementing other aspects of § 300gg–13. 75
Fed. Reg. 41728. The IFR indicated that HRSA planned to
develop its Preventive Care Guidelines (Guidelines) by Au-
gust 2011. Ibid. However, it did not mention religious ex-
emptions or accommodations of any kind.
As anticipated, HRSA released its frst set of Guidelines
in August 2011. The Guidelines were based on recommen-
dations compiled by the Institute of Medicine (now called
the National Academy of Medicine), “a nonproft group of
volunteer advisers.” Hobby Lobby, 573 U. S., at 697. The
Guidelines included the contraceptive mandate, which re-
quired health plans to provide coverage for all contraceptive
methods and sterilization procedures approved by the Food
and Drug Administration as well as related education and
counseling. 77 Fed. Reg. 8725 (2012).
The same day the Guidelines were issued, the Depart-
ments amended the 2010 IFR. 76 Fed. Reg. 46621 (2011).
When the 2010 IFR was originally published, the Depart-
ments began receiving comments from numerous religious
employers expressing concern that the Guidelines would
“impinge upon their religious freedom” if they included con-
traception. Id., at 46623. As just stated, the Guidelines ulti-
mately did contain contraceptive coverage, thus making the
potential impact on religious freedom a reality. In the
amended IFR, the Departments determined that “it [was] ap-
propriate that HRSA . . . tak[e] into account the [mandate's]
effect on . . . certain religious employers” and concluded

666 LITTLE
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Opinion of the Court
that HRSA had the discretion to do so through the creation
of
an exemption. Ibid. The Departments then determined
that the exemption should cover religious employers, and
they set out a four-part test to identify which employers
qualifed. The last criterion required the entity to be a
church, an integrated auxiliary, a convention or association
of churches, or “the exclusively religious activities of any
religious order.” Ibid. HRSA created an exemption for
these employers the same day. 78 Fed. Reg. 39871 (2013).
Because of the narrow focus on churches, this frst exemption
is known as the church exemption.
The Guidelines were scheduled to go into effect for plan
years beginning on August 1, 2012. 77 Fed. Reg. 8725–8726.
But in February 2012, before the Guidelines took effect, the
Departments promulgated a fnal rule that temporarily pre-
vented the Guidelines from applying to certain religious non-
profts. Specifcally, the Departments stated their intent
to promulgate additional rules to “accommodat[e] nonex-
empted, non-proft organizations' religious objections to cov-
ering contraceptive services.” Id., at 8727. Until that
rulemaking occurred, the 2012 rule also provided a tempo-
rary safe harbor to protect such employers. Ibid. The safe
harbor covered nonprofts “whose plans have consistently not
covered all or the same subset of contraceptive services for
religious reasons.”
3
Thus, the nonprofts who availed them-
selves of this safe harbor were not subject to the contracep-
tive mandate when it frst became effective.
3
Dept. of Health and Human Servs., Center for Consumer Information
and Insurance Oversight, Centers for Medicare & Medicaid Services, Guid-
ance on the Temporary Enforcement Safe Harbor for Certain Employers,
Group Health Plans and Group Health Insurance Issuers With Respect to
the Requirement To Cover Contraceptive Services Without Cost Sharing
Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of
the Employee Retirement Income Security Act, and Section 9815(a)(1) of
the Internal Revenue Code, p. 2 (2013).

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The Departments promulgated another fnal rule in 2013
that
is relevant to these cases in two ways. First, after reit-
erating that § 300gg–13(a)(4) authorizes HRSA “to issue
guidelines in a manner that exempts group health plans es-
tablished or maintained by religious employers,” the Depart-
ments “simplif[ied]” and “clarif[ied]” the defnition of a reli-
gious employer. 78 Fed. Reg. 39873.
4
Second, pursuant to
that same authority, the Departments provided the antici-
pated accommodation for eligible religious organizations,
which the regulation defned as organizations that “(1) [o]p-
pos[e] providing coverage for some or all of the contraceptive
services . . . on account of religious objections; (2) [are] orga-
nized and operat[e] as . . . nonproft entit[ies]; (3) hol[d] [them-
selves] out as . . . religious organization[s]; and (4) self-
certif[y] that [they] satisf[y] the frst three criteria.” Id., at
39874. The accommodation required an eligible organiza-
tion to provide a copy of the self-certifcation form to its
health insurance issuer, which in turn would exclude contra-
ceptive coverage from the group health plan and provide
payments to benefciaries for contraceptive services separate
from the health plan. Id., at 39878. The Departments
stated that the accommodation aimed to “protec[t]” religious
organizations “from having to contract, arrange, pay, or refer
for [contraceptive] coverage” in a way that was consistent
with and did not violate the Religious Freedom Restoration
Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. § 2000bb et
seq. 78 Fed. Reg. 39871, 39886–39887. This accommoda-
tion is referred to as the self-certifcation accommodation.
4
The Departments took this action to prevent an unduly narrow inter-
pretation of the church exemption, in which “an otherwise exempt plan
[was] disqualifed because the employer's purposes extend[ed] beyond the
inculcation of religious values or because the employer . . . serve[d] people
of different religious faiths.” 78 Fed. Reg. 39874. But see post, at 721–
722 (Ginsburg, J., dissenting) (arguing that the church exemption only
covered houses of worship).

668 LITTLE
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Opinion of the Court
B
Shor
tly after the Departments promulgated the 2013 fnal
rule, two religious nonprofts run by the Little Sisters of the
Poor (Little Sisters) challenged the self-certifcation accom-
modation. The Little Sisters “are an international congre-
gation of Roman Catholic women religious” who have oper-
ated homes for the elderly poor in the United States since 1868.
See Mission Statement: Little Sisters of the Poor, http://
www.littlesistersof thepoor.org/mission-statement. They
feel called by their faith to care for their elderly residents
regardless of “faith, fnances, or frailty.” Brief for Residents
and Families of Residents at Homes of the Little Sisters of
the Poor as Amici Curiae 14. The Little Sisters endeavor
to treat all residents “as if they were Jesus [Christ] himself,
cared for as family, and treated with dignity until God calls
them to his home.” Complaint ¶14 in Little Sisters of the
Poor Home for the Aged, Denver, Colo. v. Sebelius, No. 1:13–
cv–02611 (D Colo.), p. 5 (Complaint).
Consistent with their Catholic faith, the Little Sisters hold
the religious conviction “that deliberately avoiding reproduc-
tion through medical means is immoral.” Little Sisters of
the Poor Home for the Aged, Denver, Colo. v. Burwell, 794
F. 3d 1151, 1167 (CA10 2015). They challenged the self-
certifcation accommodation, claiming that completing the
certifcation form would force them to violate their religious
beliefs by “tak[ing] actions that directly cause others to pro-
vide contraception or appear to participate in the Depart-
ments' delivery scheme.” Id., at 1168. As a result, they
alleged that the self-certifcation accommodation violated
RFRA. Under RFRA, a law that substantially burdens the
exercise of religion must serve “a compelling governmental
interest” and be “the least restrictive means of furthering
that compelling governmental interest.” §§ 2000bb–1(a)–(b).
The Court of Appeals disagreed that the self-certifcation ac-
commodation substantially burdened the Little Sisters' free
exercise rights and thus rejected their RFRA claim. Little
Sisters, 794 F. 3d, at 1160.

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The Little Sisters were far from alone in raising RFRA
cha
llenges to the self-certifcation accommodation. Reli-
gious nonproft organizations and educational institutions
across the country fled a spate of similar lawsuits, most re-
sulting in rulings that the accommodation did not violate
RFRA. See, e. g., East Texas Baptist Univ. v. Burwell, 793
F. 3d 449 (CA5 2015); Geneva College v. Secretary, U. S. Dept.
of Health and Human Servs., 778 F. 3d 422 (CA3 2015);
Priests for Life v. United States Dept. of Health and Human
Servs., 772 F. 3d 229 (CADC 2014); Michigan Catholic Con-
ference v. Burwell, 755 F. 3d 372 (CA6 2014); University
of Notre Dame v. Sebelius, 743 F. 3d 547 (CA7 2014); but see
Sharpe Holdings, Inc. v. United States Dept. of Health and
Human Servs., 801 F. 3d 927 (CA8 2015); Dordt College v.
Burwell, 801 F. 3d 946 (CA8 2015). We granted certiorari
in cases from four Courts of Appeals to decide the RFRA
question. Zubik v. Burwell, 578 U. S. 403, 410 (2016) (per
curiam). Ultimately, however, we opted to remand the
cases without deciding that question. In supplemental
briefng, the Government had “confrm[ed]” that “ `contracep-
tive coverage could be provided to petitioners' employees,
through petitioners' insurance companies, without any . . .
notice from petitioners.' ” Id., at 407. Petitioners, for their
part, had agreed that such an approach would not violate
their free exercise rights. Ibid. Accordingly, because all
parties had accepted that an alternative approach was “feasi-
ble,” ibid., we directed the Government to “accommodat[e]
petitioners' religious exercise while at the same time ensur-
ing that women covered by petitioners' health plans receive
full and equal health coverage, including contraceptive cov-
erage,” id., at 408 (internal quotation marks omitted).
C
Zubik was not the only relevant ruling from this Court
about the contraceptive mandate. As the Little Sisters and
numerous others mounted their challenges to the self-
certifcation accommodation, a host of other entities chal-

670 LITTLE
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Opinion of the Court
lenged the contraceptive mandate itself as a violation of
RFRA.
See, e. g., Hobby Lobby Stores, Inc. v. Sebelius, 723
F. 3d 1114 (CA10 2013) (en banc); Korte v. Sebelius, 735 F. 3d
654 (CA7 2013); Gilardi v. United States Dept. of Health and
Human Servs., 733 F. 3d 1208 (CADC 2013); Conestoga Wood
Specialties Corp. v. Secretary of U. S. Dept. of Health and
Human Servs., 724 F. 3d 377 (CA3 2013); Autocam Corp.
v. Sebelius, 730 F. 3d 618 (CA6 2013). This Court granted
certiorari in two cases involving three closely held corpo-
rations to decide whether the mandate violated RFRA.
Hobby Lobby, 573 U. S. 682.
The individual respondents in Hobby Lobby opposed four
methods of contraception covered by the mandate. They
sincerely believed that human life begins at conception and
that, because the challenged methods of contraception risked
causing the death of a human embryo, providing those meth-
ods of contraception to employees would make the employers
complicit in abortion. Id., at 691, 720. We held that the
mandate substantially burdened respondents' free exercise,
explaining that “[if ] the owners comply with the HHS man-
date, they believe they will be facilitating abortions, and if
they do not comply, they will pay a very heavy price.” Id.,
at 691. “If these consequences do not amount to a substan-
tial burden,” we stated, “it is hard to see what would.”
Ibid. We also held that the mandate did not utilize the least
restrictive means, citing the self-certifcation accommodation
as a less burdensome alternative. Id., at 730–731.
Thus, as the Departments began the task of reformulating
rules related to the contraceptive mandate, they did so not
only under Zubik's direction to accommodate religious exer-
cise, but also against the backdrop of Hobby Lobby's pro-
nouncement that the mandate, standing alone, violated
RFRA as applied to religious entities with complicity-based
objections.
D
In 2016, the Departments attempted to strike the proper
balance a third time, publishing a request for information

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on ways to comply with Zubik. 81 Fed. Reg. 47741. This
attempt
proved futile, as the Departments ultimately con-
cluded that “no feasible approach” had been identifed.
Dept. of Labor, FAQs About Affordable Care Act Implemen-
tation Part 36, p. 4 (2017). The Departments maintained
their position that the self-certifcation accommodation was
consistent with RFRA because it did not impose a substan-
tial burden and, even if it did, it utilized the least restrictive
means of achieving the Government's interests. Id., at 4–5.
In 2017, the Departments tried yet again to comply with
Zubik, this time by promulgating the two IFRs that served
as the impetus for this litigation. The frst IFR signifcantly
broadened the defnition of an exempt religious employer to
encompass an employer that “objects . . . , based on its sin-
cerely held religious beliefs,” “to its establishing, maintain-
ing, providing, offering, or arranging [for] coverage or pay-
ments for some or all contraceptive services.” 82 Fed. Reg.
47812 (2017). Among other things, this defnition included
for-proft and publicly traded entities. Because they were
exempt, these employers did not need to participate in the
accommodation process, which nevertheless remained avail-
able under the IFR. Id., at 47806.
As with their previous regulations, the Departments once
again invoked § 300gg–13(a)(4) as authority to promulgate
this “religious exemption,” stating that it “include[d] the
ability to exempt entities from coverage requirements an-
nounced in HRSA's Guidelines.” Id., at 47794. Addition-
ally, the Departments announced for the frst time that
RFRA compelled the creation of, or at least provided the
discretion to create, the religious exemption. Id., at 47800–
47806. As the Departments explained: “We know from
Hobby Lobby that, in the absence of any accommodation, the
contraceptive-coverage requirement imposes a substantial
burden on certain objecting employers. We know from
other lawsuits and public comments that many religious enti-
ties have objections to complying with the [self-certifcation]
accommodation based on their sincerely held religious be-

672 LITTLE
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liefs.” Id., at 47806. The Departments “believe[d] that the
Cour
t's analysis in Hobby Lobby extends, for the purposes of
analyzing a substantial burden, to the burdens that an entity
faces when it religiously opposes participating in the [self-
certifcation] accommodation process.” Id., at 47800. They
thus “conclude[d] that it [was] appropriate to expand the ex-
emption to other . . . organizations with sincerely held reli-
gious beliefs opposed to contraceptive coverage.” Id., at
47802; see also id., at 47810–47811.
The second IFR created a similar “moral exemption” for
employers—including nonprofts and for-profts with no pub-
licly traded components—with “sincerely held moral” objec-
tions to providing some or all forms of contraceptive cover-
age. Id., at 47850, 47861– 47862. Citing congressi onal
enactments, precedents from this Court, agency practice,
and state laws that provided for conscience protections, id.,
at 47844–47847, the Departments invoked their authority
under the ACA to create this exemption, id., at 47844. The
Departments requested post-promulgation comments on
both IFRs. Id., at 47813, 47854.
E
Within a week of the 2017 IFRs' promulgation, the Com-
monwealth of Pennsylvania fled an action seeking declara-
tory and injunctive relief. Among other claims, it alleged
that the IFRs were procedurally and substantively invalid
under the APA. The District Court held that the Common-
wealth was likely to succeed on both claims and granted a
preliminary nationwide injunction against the IFRs. The
Federal Government appealed.
While that appeal was pending, the Departments issued
rules fnalizing the 2017 IFRs. See 83 Fed. Reg. 57536
(2018); 83 Fed. Reg. 57592, codifed at 45 CFR pt. 147 (2018).
Though the fnal rules left the exemptions largely intact,
they also responded to post-promulgation comments, ex-
plaining their reasons for neither narrowing nor expanding

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the exemptions beyond what was provided for in the IFRs.
See
83 Fed. Reg. 57542–57545, 57598–57603. The fnal rule
creating the religious exemption also contained a lengthy
analysis of the Departments' changed position regarding
whether the self-certifcation process violated RFRA. Id.,
at 57544–57549. And the Departments explained that, in
the wake of the numerous lawsuits challenging the self-
certifcation accommodation and the failed attempt to iden-
tify alternative accommodations after the 2016 request for
information, “an expanded exemption rather than the exist-
ing accommodation is the most appropriate administrative
response to the substantial burden identifed by the Supreme
Court in Hobby Lobby.” Id., at 57544–57545.
After the fnal rules were promulgated, the State of New
Jersey joined Pennsylvania's suit and, together, they fled an
amended complaint. As relevant, the States—respondents
here—once again challenged the rules as substantively and
procedurally invalid under the APA. They alleged that the
rules were substantively unlawful because the Departments
lacked statutory authority under either the ACA or RFRA
to promulgate the exemptions. Respondents also asserted
that the IFRs were not adequately justifed by good cause,
meaning that the Departments impermissibly used the IFR
procedure to bypass the APA's notice and comment proce-
dures. Finally, respondents argued that the purported pro-
cedural defects of the IFRs likewise infected the fnal rules.
The District Court issued a nationwide preliminary injunc-
tion against the implementation of the fnal rules the same
day the rules were scheduled to take effect. The Federal
Government appealed, as did one of the homes operated by
the Little Sisters, which had in the meantime intervened in
the suit to defend the religious exemption.
5
The appeals
5
The Little Sisters moved to intervene in the District Court to defend
the 2017 religious-exemption IFR, but the District Court denied that
motion. The Third Circuit reversed. After that reversal, the Little
Sisters appealed the District Court's preliminary injunction of the 2017

674 LITTLE
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were consolidated with the previous appeal, which had
been
stayed.
The Third Circuit affrmed. In its view, the Departments
lacked authority to craft the exemptions under either stat-
ute. The Third Circuit read 42 U. S. C. § 300gg–13(a)(4) as
empowering HRSA to determine which services should be
included as preventive care and screenings, but not to carve
out exemptions from those requirements. It also concluded
that RFRA did not compel or permit the religious exemption
because, under Third Circuit precedent that was vacated and
remanded in Zubik, the Third Circuit had concluded that
the self-certifcation accommodation did not impose a sub-
stantial burden on free exercise. As for respondents' proce-
dural claim, the court held that the Departments lacked good
cause to bypass notice and comment when promulgating
the 2017 IFRs. In addition, the court determined that,
because the IFRs and fnal rules were “virtually identi-
cal,” “[t]he notice and comment exercise surrounding the
Final Rules [did] not refect any real open-mindedness.”
Pennsylvania v. President of United States, 930 F. 3d
543, 568 – 569 (2019). Though it rebuked the Depar t-
ments for their purported attitudinal defciencies, the
Third Circuit did not identify any specifc public comments
to which the agency did not appropriately respond. Id.,
at 569, n. 24.
6
We granted certiorari. 589 U. S. 1165 (2020).
IFRs, and that appeal was consolidated with the Federal Government's
appeal.
6
The Third Circuit also determined sua sponte that the Little Sisters
lacked appellate standing to intervene because a District Court in Colo-
rado had permanently enjoined the contraceptive mandate as applied to
plans in which the Little Sisters participate. This was error. Under our
precedents, at least one party must demonstrate Article III standing for
each claim for relief. An intervenor of right must independently demon-
strate Article III standing if it pursues relief that is broader than or differ-
ent from the party invoking a court's jurisdiction. See Town of Chester
v. Laroe Estates, Inc., 581 U. S. 433, 439 (2017). Here, the Federal Gov-
ernment clearly had standing to invoke the Third Circuit's appellate juris-

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II
Respondents
contend that the 2018 fnal rules providing
religious and moral exemptions to the contraceptive mandate
are both substantively and procedurally invalid. We begin
with their substantive argument that the Departments
lacked statutory authority to promulgate the rules.
A
The Departments invoke 42 U. S. C. § 300gg–13(a)(4) as
legal authority for both exemptions. This provision of the
ACA states that, “with respect to women,” “[a] group health
plan and a health insurance issuer offering group or individ-
ual health insurance coverage shall, at a minimum provide
. . . such additional preventive care and screenings not de-
scribed in paragraph (1) as provided for in comprehensive
guidelines supported by [HRSA].” The Departments main-
tain, as they have since 2011, that the phrase “as provided
for” allows HRSA both to identify what preventive care and
screenings must be covered and to exempt or accommodate
certain employers' religious objections. See 83 Fed. Reg.
57540–57541; see also post, at 706 (Kagan, J., concurring in
judgment). They also argue that, as with the church ex-
emption, their role as the administering agencies permits
them to guide HRSA in its discretion by “defning the scope
of permissible exemptions and accommodations for such
guidelines.” 82 Fed. Reg. 47794. Respondents, on the
other hand, contend that § 300gg–13(a)(4) permits HRSA to
only list the preventive care and screenings that health plans
“shall . . . provide,” not to exempt entities from cover-
ing those identifed services. Because that asserted limita-
tion is found nowhere in the statute, we agree with the
Departments.
diction, and both the Federal Government and the Little Sisters asked the
court to dissolve the injunction against the religious exemption. The
Third Circuit accordingly erred by inquiring into the Little Sisters' inde-
pendent Article III standing.

676 LITTLE
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“Our analysis begins and ends with the text.” Octane
Fi
tness, LLC v. ICON Health & Fitness, Inc., 572 U. S. 545,
553 (2014). Here, the pivotal phrase is “as provided for.”
To “provide” means to supply, furnish, or make available.
See Webster's Third New International Dictionary 1827
(2002) (Webster's Third); American Heritage Dictionary 1411
(4th ed. 2000); 12 Oxford English Dictionary 713 (2d ed.
1989). And, as the Departments explained, the word “as”
functions as an adverb modifying “provided,” indicating “the
manner in which” something is done. 83 Fed. Reg. 57540.
See also Webster's Third 125; 1 Oxford English Dictionary,
at 673; American Heritage Dictionary 102 (5th ed. 2011).
On its face, then, the provision grants sweeping authority
to HRSA to craft a set of standards defning the preventive
care that applicable health plans must cover. But the stat-
ute is completely silent as to what those “comprehensive
guidelines” must contain, or how HRSA must go about creat-
ing them. The statute does not, as Congress has done in
other statutes, provide an exhaustive or illustrative list of
the preventive care and screenings that must be included.
See, e. g., 18 U. S. C. § 1961(1); 28 U. S. C. § 1603(a). It does
not, as Congress did elsewhere in the same section of the
ACA, set forth any criteria or standards to guide HRSA's
selections. See, e. g., 42 U. S. C. § 300gg–13(a)(3) (requiring
“evidence-informed preventive care and screenings” (empha-
sis added)); § 300gg–13(a)(1) (“evidence-based items or serv-
ices”). It does not, as Congress has done in other contexts,
require that HRSA consult with or refrain from consulting
with any party in the formulation of the Guidelines. See,
e. g., 16 U. S. C. § 1536(a)(1); 23 U. S. C. § 138. This means
that HRSA has virtually unbridled discretion to decide what
counts as preventive care and screenings. But the same ca-
pacious grant of authority that empowers HRSA to make
these determinations leaves its discretion equally unchecked
in other areas, including the ability to identify and create
exemptions from its own Guidelines.

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Congress could have limited HRSA's discretion in any
number
of ways, but it chose not to do so. See Ali v. Fed-
eral Bureau of Prisons, 552 U. S. 214, 227 (2008); see also
Rotkiske v. Klemm, 589 U. S. 8, 14 (2019); Husted v. A.
Philip Randolph Institute, 584 U. S. 756, 774 (2018). In-
stead, it enacted “ `expansive language offer[ing] no indi-
cation whatever' ” that the statute limits what HRSA can
designate as preventive care and screenings or who must
provide that coverage. Ali, 552 U. S., at 219–220 (quoting
Harrison v. PPG Industries, Inc., 446 U. S. 578, 589 (1980)).
“It is a fundamental principle of statutory interpretation
that `absent provision[s] cannot be supplied by the courts.' ”
Rotkiske, 589 U. S., at 14 (quoting A. Scalia & B. Garner,
Reading Law: The Interpretation of Legal Texts 94 (2012));
Nichols v. United States, 578 U. S. 104, 110 (2016). This
principle applies not only to adding terms not found in the
statute, but also to imposing limits on an agency's discretion
that are not supported by the text. See Watt v. Energy Ac-
tion Ed. Foundation, 454 U. S. 151, 168 (1981). By introduc-
ing a limitation not found in the statute, respondents ask us
to alter, rather than to interpret, the ACA. See Nichols,
578 U. S., at 110.
By its terms, the ACA leaves the Guidelines' content to
the exclusive discretion of HRSA. Under a plain reading of
the statute, then, we conclude that the ACA gives HRSA
broad discretion to defne preventive care and screenings and
to create the religious and moral exemptions.
7
7
Though not necessary for this analysis, our decisions in Zubik v. Bur-
well, 578 U. S. 403 (2016) (per curiam), and Hobby Lobby, 573 U. S. 682,
implicitly support the conclusion that § 300gg–13(a)(4) empowered HRSA
to create the exemptions. As respondents acknowledged at oral argu-
ment, accepting their interpretation of the ACA would require us to con-
clude that the Departments had no authority under the ACA to promul-
gate the initial church exemption, see Tr. of Oral Arg. 69–71, 91, which by
extension would mean that the Departments lacked authority for the 2013
self-certifcation accommodation. That reading of the ACA would create
serious tension with Hobby Lobby, which pointed to the self-certifcation

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The dissent resists this conclusion, asserting that the De-
par
tments' interpretation thwarts Congress' intent to pro-
vide contraceptive coverage to the women who are inter-
ested in receiving such coverage. See post, at 711, 730
(opinion of Ginsburg, J.). It also argues that the exemp-
tions will make it signifcantly harder for interested women
to obtain seamless access to contraception without cost shar-
ing, post, at 724–726, which we have previously “assume[d]”
is a compelling governmental interest, Hobby Lobby, 573
U. S., at 728; but see post, at 696–698 (Alito, J., concurring).
The Departments dispute that women will be adversely
impacted by the 2018 exemptions. 82 Fed. Reg. 47805.
Though we express no view on this disagreement, it bears
noting that such a policy concern cannot justify supplanting
the text's plain meaning. See Gitlitz v. Commissioner, 531
U. S. 206, 220 (2001). “It is not for us to rewrite the statute
so that it covers only what we think is necessary to achieve
what we think Congress really intended.” Lewis v. Chi-
cago, 560 U. S. 205, 215 (2010).
Moreover, even assuming that the dissent is correct as an
empirical matter, its concerns are more properly directed at
the regulatory mechanism that Congress put in place to pro-
tect this assumed governmental interest. As even the dis-
sent recognizes, contraceptive coverage is mentioned no-
where in § 300gg–13(a)(4), and no language in the statute itself
even hints that Congress intended that contraception should
or must be covered. See post, at 713–714 (citing legisla-
accommodation as an example of a less restrictive means available to the
Government, 573 U. S., at 730–731, and Zubik, which expressly directed
the Departments to “accommodat[e]” petitioners' religious exercise, 578
U. S., at 408. It would be passing strange for this Court to direct the
Departments to make such an accommodation if it thought the ACA did
not authorize one. In addition, we are not aware of, and the dissent does
not point to, a single case predating Hobby Lobby or Zubik in which the
Departments took the position that they could not adopt a different ap-
proach because they lacked the statutory authority under the ACA to
do so.

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tive history and amicus briefs). Thus, contrary to the dis-
sent'
s protestations, it was Congress, not the Departments,
that declined to expressly require contraceptive coverage in
the ACA itself. See 83 Fed. Reg. 57540. And, it was Con-
gress' deliberate choice to issue an extraordinarily “broad
general directiv[e]” to HRSA to craft the Guidelines, without
any qualifcations as to the substance of the Guidelines or
whether exemptions were permissible. Mistretta v. United
States, 488 U. S. 361, 372 (1989). Thus, it is Congress, not
the Departments, that has failed to provide the protection
for contraceptive coverage that the dissent seeks.
8
No party has pressed a constitutional challenge to the
breadth of the delegation involved here. Cf. Gundy v.
United States, 588 U. S. 128 (2019). The only question we
face today is what the plain language of the statute author-
izes. And the plain language of the statute clearly allows
the Departments to create the preventive care standards as
well as the religious and moral exemptions.
9
8
HRSA has altered its Guidelines multiple times since 2011, always pro-
ceeding without notice and comment. See 82 Fed. Reg. 47813–47814; 83
Fed. Reg. 8487; 85 Fed. Reg. 722–723 (2020). Accordingly, if HRSA chose
to exercise that discretion to remove contraceptive coverage from the next
iteration of its Guidelines, it would arguably nullify the contraceptive man-
date altogether without proceeding through notice and comment. The
combination of the agency practice of proceeding without notice and com-
ment and HRSA's discretion to alter the Guidelines, though not necessary
for our analysis, provides yet another indication of Congress' failure to
provide strong protections for contraceptive coverage.
9
The dissent does not attempt to argue that the self-certifcation accom-
modation can coexist with its interpretation of the ACA. As for the
church exemption, the dissent claims that it is rooted in the First Amend-
ment's respect for church autonomy. See post, at 721–722. But the dis-
sent points to no case, brief, or rule in the nine years since the church
exemption's implementation in which the Departments defended its valid-
ity on that ground. The most the dissent can point to is a stray comment
in the rule that expanded the self-certifcation accommodation to closely
held corporations in the wake of Hobby Lobby. See post, at 722 (quoting
80 Fed. Reg. 41325 (2015)).

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B
The
Departments also contend, consistent with the reason-
ing in the 2017 IFR and the 2018 fnal rule establishing the
religious exemption, that RFRA independently compelled
the Departments' solution or that it at least authorized it.
10
In light of our holding that the ACA provided a basis for
both exemptions, we need not reach these arguments.
11
We
do, however, address respondents' argument that the De-
partments could not even consider RFRA as they formulated
the religious exemption from the contraceptive mandate.
Particularly in the context of these cases, it was appropriate
for the Departments to consider RFRA.
As we have explained, RFRA “provide[s] very broad pro-
tection for religious liberty.” Hobby Lobby, 573 U. S., at 693.
In RFRA's congressional findings, Congress stated that
“governments should not substantially burden religious ex-
ercise,” a right described by RFRA as “unalienable.” 42
U. S. C. §§ 2000bb(a)(1), (3). To protect this right, Congress
provided that the “[g]overnment shall not substantially bur-
den a person's exercise of religion even if the burden results
from a rule of general applicability” unless “it demonstrates
that application of the burden . . . is in furtherance of a com-
pelling governmental interest; and . . . is the least restrictive
means of furthering that compelling governmental interest.”
§§ 2000bb–1(a)–(b). Placing Congress' intent beyond dis-
pute, RFRA specifes that it “applies to all Federal law, and
10
The dissent claims that “all agree” that the exemption is not supported
by the Free Exercise Clause. Post, at 711. A constitutional claim is not
presented in these cases, and we express no view on the merits of that
question.
11
The dissent appears to agree that the Departments had authority
under RFRA to “cure” any RFRA violations caused by its regulations.
See post, at 723, n. 17 (disclaiming the view that agencies must wait for
courts to determine a RFRA violation); see also supra, at 666 (explaining
that the safe harbor and commitment to developing an accommodation
occurred prior to the Guidelines going into effect). The dissent also does
not—as it cannot—dispute our directive in Zubik.

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the implementation of that law, whether statutory or other-
w
ise.” § 2000bb–3(a). RFRA also permits Congress to ex-
clude statutes from RFRA's protections. § 2000bb–3(b).
It is clear from the face of the statute that the contracep-
tive mandate is capable of violating RFRA. The ACA does
not explicitly exempt RFRA, and the regulations implement-
ing the contraceptive mandate qualify as “Federal law” or
“the implementation of [Federal] law.” § 2000bb–3(a); cf.
Chrysler Corp. v. Brown, 441 U. S. 281, 297–298 (1979). Ad-
ditionally, we expressly stated in Hobby Lobby that the con-
traceptive mandate violated RFRA as applied to entities
with complicity-based objections. 573 U. S., at 736. Thus,
the potential for confict between the contraceptive mandate
and RFRA is well settled. Against this backdrop, it is un-
surprising that RFRA would feature prominently in the De-
partments' discussion of exemptions that would not pose
similar legal problems.
Moreover, our decisions all but instructed the Depart-
ments to consider RFRA going forward. For instance,
though we held that the mandate violated RFRA in Hobby
Lobby, we left it to the Federal Government to develop and
implement a solution. At the same time, we made it abun-
dantly clear that, under RFRA, the Departments must ac-
cept the sincerely held complicity-based objections of reli-
gious entities. That is, they could not “tell the plaintiffs
that their beliefs are fawed” because, in the Departments'
view, “the connection between what the objecting parties
must do . . . and the end that they fnd to be morally wrong
. . . is simply too attenuated.” Hobby Lobby, 573 U. S.,
at 723–724. Likewise, though we did not decide whether
the self-certifcation accommodation ran afoul of RFRA in
Zubik, we directed the parties on remand to “accommo-
dat[e]” the free exercise rights of those with complicity-
based objections to the self-certifcation accommodation.
578 U. S., at 408. It is hard to see how the Departments
could promulgate rules consistent with these decisions if

682 LITTLE
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they did not overtly consider these entities' rights under
RFRA.
Th
is is especially true in light of the basic requirements of
the rulemaking process. Our precedents require fnal rules
to “articulate a satisfactory explanation for [the] action in-
cluding a rational connection between the facts found and
the choice made.” Motor Vehicle Mfrs. Assn. of United
States, Inc. v. State Farm Mut. Automobile Ins. Co., 463
U. S. 29, 43 (1983) (internal quotation marks omitted). This
requirement allows courts to assess whether the agency has
promulgated an arbitrary and capricious rule by “entirely
fail[ing] to consider an important aspect of the problem [or]
offer[ing] an explanation for its decision that runs counter
to the evidence before [it].” Ibid.; see also Department of
Co mme rce v. New Yo rk, 588 U. S. 752, 802 (2019)
(Breyer, J., concurring in part and dissenting in part); Gen-
uine Parts Co. v. EPA, 890 F. 3d 304, 307 (CADC 2018); Pa-
cifc Coast Federation of Fishermen's Assns. v. United
States Bur. of Reclamation, 426 F. 3d 1082, 1094 (CA9 2005).
Here, the Departments were aware that Hobby Lobby held
the mandate unlawful as applied to religious entities with
complicity-based objections. 82 Fed. Reg. 47799; 83 Fed.
Reg. 57544–57545. They were also aware of Zubik's in-
structions. 82 Fed. Reg. 47799. And, aside from our own
decisions, the Departments were mindful of the RFRA con-
cerns raised in “public comments and . . . court flings in
dozens of cases—encompassing hundreds of organizations.”
Id., at 47802; see also id., at 47806. If the Departments did
not look to RFRA's requirements or discuss RFRA at all
when formulating their solution, they would certainly be sus-
ceptible to claims that the rules were arbitrary and capri-
cious for failing to consider an important aspect of the prob-
lem.
12
Thus, respondents' argument that the Departments
12
Here, too, the Departments have consistently taken the position that
their rules had to account for RFRA in response to comments that the
rules would violate that statute. See Dept. of Labor, FAQs About Afford-

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Opinion of the Court
erred by looking to RFRA as a guide when framing the reli-
g
ious exemption is without merit.
III
Because we hold that the Departments had authority to
promulgate the exemptions, we must next decide whether
the 2018 fnal rules are procedurally invalid. Respondents
present two arguments on this score. Neither is persuasive.
A
Unless a statutory exception applies, the APA requires
agencies to publish a notice of proposed rulemaking in the
Federal Register before promulgating a rule that has legal
force. See 5 U. S. C. § 553(b). Respondents point to the
fact that the 2018 fnal rules were preceded by a document
entitled “Interim Final Rules with Request for Comments,”
not a document entitled “General Notice of Proposed Rule-
making.” They claim that since this was insuffcient to sat-
isfy § 553(b)'s requirement, the fnal rules were procedurally
invalid. Respondents are incorrect. Formal labels aside,
the rules contained all of the elements of a notice of proposed
rulemaking as required by the APA.
The APA requires that the notice of proposed rulemaking
contain “reference to the legal authority under which the
rule is proposed” and “either the terms or substance of the
proposed rule or a description of the subjects and issues in-
volved.” §§ 553(b)(2)–(3). The request for comments in the
2017 IFRs readily satisfes these requirements. That re-
quest detailed the Departments' view that they had legal
able Care Act Implementation Part 36, pp. 4–5 (2017) (2016 Request for
Information); 78 Fed. Reg. 39886–39887 (2013 rule); 77 Fed. Reg. 8729
(2012 fnal rule). As the 2017 IFR explained, the Departments simply
reached a different conclusion on whether the accommodation satisfed
RFRA. See 82 Fed. Reg. 47800–47806 (summarizing the previous ways
in which the Departments accounted for RFRA and providing a lengthy
explanation for the changed position).

684 LITTLE
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authority under the ACA to promulgate both exemptions, 82
F
ed. Reg. 47794, 47844, as well as authority under RFRA
to promulgate the religious exemption, id., at 47800–47806.
And respondents do not—and cannot—argue that the IFRs
failed to air the relevant issues with suffcient detail for re-
spondents to understand the Departments' position. See
supra, at 671–672. Thus, the APA notice requirements
were satisfed.
Even assuming that the APA requires an agency to publish
a document entitled “notice of proposed rulemaking ” when
the agency moves from an IFR to a fnal rule, there was no
“prejudicial error” here. § 706. We have previously noted
that the rule of prejudicial error is treated as an “administra-
tive law . . . harmless error rule,” National Assn. of Home
Builders v. Defenders of Wildlife, 551 U. S. 644, 659–660
(2007) (internal quotation marks omitted). Here, the De-
partments issued an IFR that explained its position in ful-
some detail and “provide[d] the public with an opportunity
to comment on whether [the] regulations . . . should be made
permanent or subject to modifcation.” 82 Fed. Reg. 47815;
see also id., at 47852, 47855. Respondents thus do not come
close to demonstrating that they experienced any harm from
the title of the document, let alone that they have satisfed
this harmless error rule. “The object [of notice and com-
ment], in short, is one of fair notice,” Long Island Care at
Home, Ltd. v. Coke, 551 U. S. 158, 174 (2007), and respondents
certainly had such notice here. Because the IFR complied
with the APA's requirements, this claim fails.
13
B
Next, respondents contend that the 2018 fnal rules are
procedurally invalid because “nothing in the record signal[s]”
13
We note as well that the Departments promulgated many other IFRs
in addition to the three related to the contraceptive mandate. See, e. g.,
75 Fed. Reg. 27122 (dependent coverage); id., at 34538 (grandfathered
health plans); id., at 37188 (pre-existing conditions).

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that the Departments “maintained an open mind throughout
the
[post-promulgation] process.” Brief for Respondents 27.
As evidence for this claim, respondents point to the fact that
the fnal rules made only minor alterations to the IFRs, leav-
ing their substance unchanged. The Third Circuit applied
this “open-mindedness” test, concluding that because the
fnal rules were “virtually identical” to the IFRs, the Depart-
ments lacked the requisite “fexible and open-minded atti-
tude” when they promulgated the fnal rules. 930 F. 3d, at
569 (internal quotation marks omitted).
We decline to evaluate the fnal rules under the open-
mindedness test. We have repeatedly stated that the text
of the APA provides the “ `maximum procedural require-
ments' ” that an agency must follow in order to promulgate
a rule. Perez, 575 U. S., at 100 (quoting Vermont Yankee
Nuclear Power Corp. v. Natural Resources Defense Council,
Inc., 435 U. S. 519, 524 (1978)). Because the APA “sets forth
the full extent of judicial authority to review executive
agency action for procedural correctness,” FCC v. Fox Tele-
vision Stations, Inc., 556 U. S. 502, 513 (2009), we have re-
peatedly rejected courts' attempts to impose “judge-made
procedur[es]” in addition to the APA's mandates, Perez, 575
U. S., at 102; see also Pension Beneft Guaranty Corporation
v. LTV Corp., 496 U. S. 633, 654–655 (1990); Vermont Yankee,
435 U. S., at 549. And like the procedures that we have held
invalid, the open-mindedness test violates the “general prop-
osition that courts are not free to impose upon agencies spe-
cifc procedural requirements that have no basis in the APA.”
LTV Corp., 496 U. S., at 654. Rather than adopting this test,
we focus our inquiry on whether the Departments satisfed
the APA's objective criteria, just as we have in previous
cases. We conclude that they did.
Section 553(b) obligated the Departments to provide ade-
quate notice before promulgating a rule that has legal force.
As explained supra, at 683–684, the IFRs provided suffcient
notice. Aside from these notice requirements, the APA

686 LITTLE
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mandates that agencies “give interested persons an opportu-
nity
to participate in the rule making through submission of
written data, views, or arguments,” § 553(c); states that the
fnal rules must include “a concise general statement of their
basis and purpose,” ibid.; and requires that fnal rules must
be published 30 days before they become effective, § 553(d).
The Departments complied with each of these statutory
procedures. They “request[ed] and encourage[d] public
comments on all matters addressed” in the rules—i. e., the
basis for the Departments' legal authority, the rationales for
the exemptions, and the detailed discussion of the exemp-
tions' scope. 82 Fed. Reg. 47813, 47854. They also gave in-
terested parties 60 days to submit comments. Id., at 47792,
47838. The fnal rules included a concise statement of their
basis and purpose, explaining that the rules were “necessary
to protect sincerely held” moral and religious objections and
summarizing the legal analysis supporting the exemptions.
83 Fed. Reg. 57592; see also id., at 57537–57538. Lastly, the
fnal rules were published on November 15, 2018, but did not
become effective until January 14, 2019—more than 30 days
after being published. Id., at 57536, 57592. In sum, the
rules fully complied with “ `the maximum procedural re-
quirements [that] Congress was willing to have the courts
impose upon agencies in conducting rulemaking proce-
dures.' ” Perez, 575 U. S., at 102 (quoting Vermont Yankee,
435 U. S., at 524). Accordingly, respondents' second proce-
dural challenge also fails.
14
***
For over 150 years, the Little Sisters have engaged in
faithful service and sacrifce, motivated by a religious calling
14
Because we conclude that the IFRs' request for comment satisfes the
APA's rulemaking requirements, we need not reach respondents' addi-
tional argument that the Departments lacked good cause to promulgate
the 2017 IFRs.

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Alito, J., concurring
to surrender all for the sake of their brother. “[T]hey com-
mit
to constantly living out a witness that proclaims the
unique, inviolable dignity of every person, particularly those
whom others regard as weak or worthless.” Complaint ¶14.
But for the past seven years, they—like many other religious
objectors who have participated in the litigation and rule-
makings leading up to today's decision—have had to fght for
the ability to continue in their noble work without violating
their sincerely held religious beliefs. After two decisions
from this Court and multiple failed regulatory attempts, the
Federal Government has arrived at a solution that exempts
the Little Sisters from the source of their complicity-based
concer ns—the admi nistratively imposed contraceptive
mandate.
We hold today that the Departments had the statutory au-
thority to craft that exemption, as well as the contemporane-
ously issued moral exemption. We further hold that the
rules promulgating these exemptions are free from proce-
dural defects. Therefore, we reverse the judgment of the
Court of Appeals and remand the cases for further proceed-
ings consistent with this opinion.
It is so ordered.
Justice Alito, w ith whom Justice Gorsuch joins,
concurring.
In these cases, the Court of Appeals held, among other
things, (1) that the Little Sisters of the Poor lacked standing
to appeal, (2) that the Affordable Care Act (ACA) does not
permit any exemptions from the so-called contraceptive
mandate, (3) that the Departments responsible for issuing
the challenged rule
1
violated the Administrative Procedure
1
The Health Resources and Services Administration (HRSA), a division
of the Department of Health and Human Services, creates the “compre-
hensive guidelines” on “coverage” for “additional preventive care and
screenings” for women, 42 U. S. C. § 300gg–13(a)(4), but the statute is

688 LITTLE
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Alito, J., concurring
Act (APA) by failing to provide notice of proposed rule-
mak
ing, and (4) that the fnal rule creating the current
exemptions is invalid because the Departments did not
have an open mind when they considered comments to
the rule. Based on this analysis, the Court of Appeals af-
frmed the nationwide injunction issued by the District
Court.
This Court now concludes that all the holdings listed above
were erroneous, and I join the opinion of the Court in full.
We now send these cases back to the lower courts, where
the Commonwealth of Pennsylvania and the State of New
Jersey are all but certain to pursue their argument that the
current rule is fawed on yet another ground, namely, that it
is arbitrary and capricious and thus violates the APA. This
will prolong the legal battle in which the Little Sisters have
now been engaged for seven years—even though during all
this time no employee of the Little Sisters has come forward
with an objection to the Little Sisters' conduct.
I understand the Court's desire to decide no more than is
strictly necessary, but under the circumstances here, I would
decide one additional question: whether the Court of Appeals
erred in holding that the Religious Freedom Restoration Act
(RFRA), 42 U. S. C. §§ 2000bb to 2000bb–4, does not compel
the religious exemption granted by the current rule. If
RFRA requires this exemption, the Departments did not act
in an arbitrary and capricious manner in granting it. And
in my judgment, RFRA compels an exemption for the Little
Sisters and any other employer with a similar objection to
what has been called the accommodation to the contracep-
tive mandate.
jointly administered and enforced by the Departments of Health and
Human Services, Labor, and Treasury (collectively Departments), see
§ 300gg–92; 29 U. S. C. § 1191c; 26 U. S. C. § 9833. The Departments pro-
mulgated the exemptions at issue here, which were subsequently incorpo-
rated into the guidelines by HRSA. See 83 Fed. Reg. 57536 (2018); id.,
at 57592.

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Alito, J., concurring
I
Because
the contraceptive mandate has been repeatedly
modifed, a brief recapitulation of this history may be helpful.
The ACA itself did not require that insurance plans include
coverage for contraceptives. Instead, the Act provided that
plans must cover those preventive services found to be ap-
propriate by HRSA, an agency of the Department of Health
and Human Services. 42 U. S. C. § 300gg–13(a)(4). In 2011,
HRSA recommended that plans be required to cover “ `[a]ll
. . . contraceptive methods' ” approved by the Food and Drug
Administration. 77 Fed. Reg. 8725 (2012). (I will use the
term “contraceptive mandate” or simply “mandate” to refer
to the obligation to provide coverage for contraceptives
under any of the various regimes that have existed since the
promulgation of this original rule.) At the direction of the
relevant Departments, HRSA simultaneously created an ex-
emption from the mandate for “churches, their integrated
auxiliaries, and conventions or associations of churches,” as
well as “the exclusively religious activities of any religious
order.” 76 Fed. Reg. 46623 (2011); see 77 Fed. Reg. 8726.
(I will call this the “church exemption.”) This narrow ex-
emption was met with strong objections on the ground that
it furnished insuffcient protection for religious groups op-
posed to the use of some or all of the listed contraceptives.
The Departments responded by issuing a new regulation
that created an accommodation for certain religious non-
proft employers. See 78 Fed. Reg. 39892–39898 (2013). (I
will call this the “accommodation.”) Under this accommoda-
tion, a covered employer could certify its objection to its in-
surer (or, if its plan was self-funded, to its third-party plan
administrator), and the insurer or third-party administrator
would then proceed to provide contraceptive coverage to the
objecting entity's employees. Unlike the earlier church ex-
emption, the accommodation did not exempt these religious
employers from the contraceptive mandate, but the Depart-

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ments construed invocation of the accommodation as compli-
ance
with the mandate.
Meanwhile, the contraceptive mandate was challenged by
various employers who had religious objections to providing
coverage for at least some of the listed contraceptives but
were not covered by the church exemption or the accommo-
dation. In Burwell v. Hobby Lobby Stores, Inc., 573 U. S.
682 (2014), we held that RFRA prohibited the application of
the regulation to closely held, for-proft corporations that fell
into this category. The Departments responded by issuing
a new regulation that attempted to codify our holding by
allowing closely held corporations to utilize the accommoda-
tion. See 80 Fed. Reg. 41343–41347 (2015).
2
Although this modifcation solved one RFRA problem, the
contraceptive mandate was still objectionable to some reli-
gious employers, including the Little Sisters. We consid-
ered those objections in Zubik v. Burwell, 578 U. S. 403
(2016) (per curiam), but instead of resolving the legal
dispute, we vacated the decisions below and remanded, in-
structing the parties to attempt to come to an agreement.
Unfortunately, after strenuous efforts, the outgoing adminis-
tration reported on January 9, 2017, that no reconciliation
could be reached.
3
The Little Sisters and other employers
objected to engaging in any conduct that had the effect
of making contraceptives available to their employees under
their insurance plans, and no way of providing such cover-
age to their employees without using their plans could be
found.
2
In the regulation, the Departments also responded to our holding in
Wheaton College v. Burwell, 573 U. S. 958 (2014), by allowing employers
who invoked the accommodation to notify the Government of their objec-
tion rather than by fling the objection with their insurer or third-party
administrator. See 80 Fed. Reg. 41337.
3
Dept. of Labor, FAQs About Affordable Care Act Implementation
Part 36 (Jan. 9, 2017), https://www.dol.gov/sites/dolgov/fles/EBSA /about-
ebsa /our-activities/resource-center/faqs/aca-part-36.pdf.

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In 2017, the new administration took up the task of at-
tempti
ng to fnd a solution. After receiving more than
56,000 comments, it issued the rule now before us, which
made the church exemption available to non-governmental
employers who object to the provision of some or all contra-
ceptive services based on sincerely held religious beliefs.
4
45 CFR § 147.132; see 83 Fed. Reg. 57540, 57590. (The “reli-
gious exemption.”) The Court of Appeals, as noted, held
that RFRA did not require this new rule.
II
A
RFRA broadly prohibits the Federal Government from vi-
olating religious liberty. See 42 U. S. C. § 2000bb–1(a). It
applies to every “branch, department, agency, [and] instru-
mentality” of the Federal Government, as well as any “per-
son acting under color of ” federal law. § 2000bb–2(1). And
this prohibition applies to the “implementation” of federal
law. § 2000bb–3(a). Thus, unless the ACA or some other
subsequently enacted statute made RFRA inapplicable to
the contraceptive mandate, the Departments responsible for
administering that mandate are obligated to do so in a man-
ner that complies with RFRA.
No provision of the ACA abrogates RFRA, and our deci-
sion in Hobby Lobby, 573 U. S., at 736, established that appli-
cation of the contraceptive mandate must conform to RFRA's
demands. Thus, it was incumbent on the Departments to
ensure that the rules implementing the mandate were con-
sistent with RFRA, as interpreted in our decision.
B
Under RFRA, the Federal Government may not “substan-
tially burden a person's exercise of religion even if the bur-
4
A similar exemption was provided for employers with moral objec-
tions. See 45 CFR § 147.33 (2019).

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den results from a rule of general applicability,” unless it
“demonstrates
that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering that
compelling governmental interest. ” §§ 2000bb–1(a), (b).
Applying RFRA to the contraceptive mandate thus presents
three questions. First, would the mandate substantially
burden an employer's exercise of religion? Second, if the
mandate would impose such a burden, would it nevertheless
serve a “compelling interest”? And third, if it serves such
an interest, would it represent “the least restrictive means
of furthering ” that interest?
Substantial burden. Under our decision in Hobby Lobby,
requiring the Little Sisters or any other employer with a
similar religious objection to comply with the mandate would
impose a substantial burden. Our analysis of this question
in Hobby Lobby can be separated into two parts. First,
would non-compliance have substantial adverse practical
consequences? 573 U. S., at 720–723. Second, would com-
pliance cause the objecting party to violate its religious
beliefs, as it sincerely understands them? Id., at 723–726.
The answer to the frst question is indisputable. If a cov-
ered employer does not comply with the mandate (by provid-
ing contraceptive coverage or invoking the accommodation),
it faces penalties of $100 per day for each of its employees.
26 U. S. C. § 4980D(b)(1). “And if the employer decides to
stop providing health insurance altogether and at least one
full-time employee enrolls in a health plan and qualifes for
a subsidy on one of the government-run ACA exchanges,
the employer must pay $2,000 per year for each of its full-
time employees. §§ 4980H(a), (c)(1).” 573 U. S., at 697. In
Hobby Lobby, we found these “severe” fnancial consequences
suffcient to show that the practical effect of non-compliance
would be “substantial.”
5
Id., at 720.
5
This is one of the differences between these cases and Bowen v. Roy,
476 U. S. 693 (1986). See post, at 727 (Ginsburg, J., dissenting) (relying
on Bowen to conclude that accommodation was unnecessary). In Bowen,

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Our answer to the second question was also perfectly clear.
If
an employer has a religious objection to the use of a cov-
ered contraceptive, and if the employer has a sincere reli-
gious belief that compliance with the mandate makes it com-
plicit in that conduct, then RFRA requires that the belief be
honored. Id., at 724–725. We noted that the objection
raised by the employers in Hobby Lobby “implicate[d] a dif-
fcult and important question of religion and moral philoso-
phy, namely, the circumstances under which it is wrong for a
person to perform an act that is innocent in itself but that
has the effect of enabling or facilitating the commission of an
immoral act by another.” Id., at 724. We noted that differ-
ent individuals have different beliefs on this question, but
we were clear that “federal courts have no business address-
ing . . . whether the religious belief asserted in a RFRA case
is reasonable.” Ibid. Instead, the “ `function' ” of a court is
“ `narrow' ”: “ `to determine' whether the line drawn refects
`an honest conviction.' ” Id., at 725 (quoting Thomas v. Re-
view Bd. of Ind. Employment Security Div., 450 U. S. 707,
716 (1981)).
Applying this holding to the Little Sisters yields an obvi-
ous answer. It is undisputed that the Little Sisters have a
sincere religious objection to the use of contraceptives and
that they also have a sincere religious belief that utilizing
the accommodation would make them complicit in this con-
duct. As in Hobby Lobby, “it is not for us to say that their
religious beliefs are mistaken or insubstantial.” 573 U. S.,
at 725.
In reaching a contrary conclusion, the Court of Appeals
adopted the reasoning of a prior Third Circuit decision hold-
ing that “ `the submission of the self-certifcation form' ” re-
quired by the mandate would not “ `trigger or facilitate
the provision of contraceptive coverage' ” and would not
make the Little Sisters “ ` “complicit” in the provision' ” of
the objecting individuals were not faced with penalties or “coerced by the
Governmen[t] into violating their religious beliefs.” Lyng v. Northwest
Indian Cemetery Protective Assn., 485 U. S. 439, 449 (1988).

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objected-to services. 930 F. 3d 543, 573 (2019) (quoting Ge-
nev
a College v. Secretary of U. S. Dept. of Health and
Human Servs., 778 F. 3d 422, 437–438 (CA3 2015), vacated
and remanded sub nom. Zubik, 578 U. S. 403).
The position taken by the Third Circuit was similar to that
of the Government when Zubik was before us. Opposing
the position taken by the Little Sisters and others, the Gov-
ernment argued that what the accommodation required was
not materially different from simply asking that an objecting
party opt out of providing contraceptive coverage with the
knowledge that by doing so it would cause a third party to
provide that coverage. According to the Government, ev-
erything that occurred following the opt-out was a result of
governmental action.
6
Petitioners disagreed. Their concern was not with notify-
ing the Government that they wished to be exempted from
complying with the mandate per se,
7
but they objected to two
requirements that they sincerely believe would make them
complicit in conduct they fnd immoral. First, they took
strong exception to the requirement that they maintain and
pay for a plan under which coverage for contraceptives
would be provided. As they explained, if they “were willing
to incur ruinous penalties by dropping their health plans,
their insurance companies would have no authority or obliga-
tion to provide or procure the objectionable coverage for
[their] plan benefciaries.”
8
Second, they also objected to
submission of the self-certifcation form required by the ac-
commodation because without that certifcation their plan
could not be used to provide contraceptive coverage.
9
At
6
See Brief for Respondents in Zubik v. Burwell, O. T. 2015, Nos. 14–
1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, 15–191, pp. 35–41.
7
See Brief for Petitioners in Zubik v. Burwell, O. T. 2015, Nos. 15–35,
15–105, 15–119, 15–191, p. 45.
8
Brief for Petitioners in Zubik v. Burwell, O. T. 2015, Nos. 14–1418, 14–
1453, 14–1505, p. 49.
9
Brief for Petitioners in Zubik, O. T. 2015, Nos. 15–35, 15–105, 15–119,
15–191, at 44.

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bottom, then, the Government and the religious objectors
disagreed
about the relationship between what the accom-
modati on demanded and the provisi on of contraceptive
coverage.
Our remand in Zubik put these two conficting interpreta-
tions to the test. In response to our request for supplemen-
tal briefng, petitioners explained their position in the follow-
i ng ter ms. “ [T]heir rel ig i ous exercise” wou ld not be
“infringed” if they did not have to do anything “ `more than
contract for a plan that does not include coverage for some
or all forms of contraception,' even if their employees re-
ceive[d] cost-free contraceptive coverage from the same in-
surance company.” 578 U. S., at 407–408. At the time, the
Government thought that it might be possible to achieve this
result under the ACA, id., at 408, but subsequent attempts to
find a way to do this failed. After great effort, the Govern-
ment was forced to conclude that it was “not aware of the au-
thority, or of a practical mechanism,” for providing contracep-
tive coverage “specifically to persons covered by an objecting
employer, other than by using the employer's plan, issuer, or
third party administrator.” 83 Fed. Reg. 57545–57546.
The inescapable bottom line is that the accommodation de-
manded that parties like the Little Sisters engage in conduct
that was a necessary cause of the ultimate conduct to which
they had strong religious objections. Their situation was
the same as that of the conscientious objector in Thomas, 450
U. S., at 715, who refused to participate in the manufacture
of tanks but did not object to assisting in the production of
steel used to make the tanks. Where to draw the line in a
chain of causation that leads to objectionable conduct is a
diffcult moral question, and our cases have made it clear
that courts cannot override the sincere religious beliefs of an
objecting party on that question. See Hobby Lobby, 573
U. S., at 723–726; Thomas, 450 U. S., at 715–716.
For these reasons, the contraceptive mandate imposes a
substantial burden on any employer who, like the Little Sis-
ters, has a sincere religious objection to the use of a listed

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contraceptive and a sincere religious belief that compliance
w
ith the mandate (through the accommodation or otherwise)
makes it complicit in the provision to the employer's workers
of a contraceptive to which the employer has a religious
objection.
Compelling interest. In Hobby Lobby, the Government
asserted and we assumed for the sake of argument that the
Government had a compelling interest in “ensuring that all
women have access to all FDA-approved contraceptives
without cost sharing.” 573 U. S., at 727. Now, the Govern-
ment concedes that it lacks a compelling interest in providing
such access, Reply Brief in No. 19–454, p. 10, and this time,
the Government is correct.
In order to show that it has a “compelling interest” within
the meaning of RFRA, the Government must clear a high
bar. In Sherbert v. Verner, 374 U. S. 398 (1963), the decision
that provides the foundation for the rule codifed in RFRA,
we said that “ `[o]nly the gravest abuses, endangering para-
mount interests,' ” could “ `give occasion for [a] permissible
limitation' ” on the free exercise of religion. Id., at 406.
Thus, in order to establish that it has a “compelling interest”
in providing free contraceptives to all women, the Govern-
ment would have to show that it would commit one of “the
gravest abuses” of its responsibilities if it did not furnish free
contraceptives to all women.
If we were required to exercise our own judgment on the
question whether the Government has an obligation to pro-
vide free contraceptives to all women, we would have to take
sides in the great national debate about whether the Govern-
ment should provide free and comprehensive medical care
for all. Entering that policy debate would be inconsistent
with our proper role, and RFRA does not call on us to ex-
press a view on that issue. We can answer the compelling
interest question simply by asking whether Congress has
treated the provision of free contraceptives to all women as
a compelling interest.

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“ `[A] law cannot be regarded as protecting an interest “of
the
highest order” . . . when it leaves appreciable damage
to that supposedly vital interest unprohibited.' ” Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547
(1993). Thus, in considering whether Congress has mani-
fested the view that it has a compelling interest in providing
free contraceptives to all women, we must take into account
“exceptions” to this asserted “ `rul[e] of general applicabil-
ity.' ” Gonzales v. O Centro Espírita Benefcente União do
Vegetal, 546 U. S. 418, 436 (2006) (quoting § 2000bb–1(a)).
And here, there are exceptions aplenty. The ACA—which
fails to ensure that millions of women have access to free
contraceptives—unmistakably shows that Congress, at least
to date, has not regarded this interest as compelling.
First, the ACA does not provide contraceptive coverage
for women who do not work outside the home. If Congress
thought that there was a compelling need to make free con-
traceptives available for all women, why did it make no pro-
vision for women who do not receive a paycheck? Some of
these women may have a greater need for free contracep-
tives than do women in the work force.
Second, if Congress thought that there was a compelling
need to provide cost-free contraceptives for all working
women, why didn't Congress mandate that coverage in the
ACA itself ? Why did it leave it to HRSA to decide whether
to require such coverage at all?
Third, the ACA's very incomplete coverage speaks vol-
umes. The ACA “exempts a great many employers from
most of its coverage requirements.” Hobby Lobby, 573 U. S.,
at 699. “[E]mployers with fewer than 50 employees are not
required to provide” any form of health insurance, and a
number of large employers with “ `grandfathered' ” plans
need not comply with the contraceptive mandate. Ibid.; see
26 U. S. C. § 4980H(c)(2); 42 U. S. C. § 18011. According to
a recent survey, 13% of the 153 million Americans with
employer-sponsored health insurance are enrolled in a grand-

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fathered plan, while only 56% of small frms provide health
i
nsurance. Kaiser Family Foundation, Employer Health
Benefts: 2019 Annual Survey 7, 44, 209 (2019). In Hobby
Lobby, we wrote that “the contraceptive mandate `presently
does not apply to tens of millions of people,' ” 573 U. S., at
700, and it appears that this is still true apart from the reli-
gious exemption.
10
Fourth, the Court's recognition in today's decision that the
ACA authorizes the creation of exemptions that go beyond
anything required by the Constitution provides further evi-
dence that Congress did not regard the provision of cost-free
contraceptives to all women as a compelling interest.
Moreover, the regulatory exemptions created by the De-
partments and HRSA undermine any claim that the agencies
themselves viewed the provision of contraceptive coverage
as suffciently compelling. From the outset, the church ex-
emption has applied to churches, their integrated auxiliaries,
and associations. 76 Fed. Reg. 46623. And because of the
way the accommodation operates under the Employee Re-
tirement Income Security Act of 1974, the Departments
treated a number of self-insured non-proft organizations es-
tablished by churches or associations of churches, including
religious universities and hospitals, as “effectively ex-
empted” from the contraceptive mandate as well. Brief for
Petitioners in No. 19–454, p. 4. The result was a complex
and sometimes irrational pattern of exemptions.
The dissent frames the allegedly compelling interest served
by the mandate in different terms—as an interest in providing
“seamless” cost-free coverage, post, at 710–711, 723, 729
(opinion of Ginsburg, J.)––but this is an even weaker argu-
ment. What “seamless” coverage apparently means is cov-
10
In contrast, the Departments estimated that plans covering 727,000
people would take advantage of the religious exemption, and thus that
between 70,500 and 126,400 women of childbearing age would be affected
by the religious exemption. 83 Fed. Reg. 57578, 57581.

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erage under the insurance plan furnished by a woman's em-
ployer
. So as applied to the Little Sisters, the dissent
thinks that it would be a grave abuse if an employee wishing
to obtain contraceptives had to take any step that would not
be necessary if she wanted to obtain any other medical serv-
ice. See post, at 725–726. Apparently, it would not be
enough if the Government sent her a special card that could
be presented at a pharmacy to fll a prescription for contra-
ceptives without any out-of-pocket expense. Nor would it
be enough if she were informed that she could obtain free
contraceptives by going to a conveniently located govern-
ment clinic. Neither of those alternatives would provide
“seamless coverage,” and thus, according to the dissent, both
would be insuffcient. Nothing short of capitulation on the
part of the Little Sisters would suffce.
This argument is inconsistent with any reasonable under-
standing of the concept of a “compelling interest.” It is un-
doubtedly convenient for employees to obtain all types of
medical care and all pharmaceuticals under their general
health insurance plans, and perhaps there are women whose
personal situation is such that taking any additional steps to
secure contraceptives would be a notable burden. But can
it be said that all women or all working women have a com-
pelling need for this convenience?
The ACA does not provide “seamless” coverage for all
forms of medical care. Take the example of dental care.
Although lack of dental care can cause great pain and may
lead to serious health problems, the ACA does not require
that a plan cover dental services. Millions of employees
must secure separate dental insurance or pay dentist bills
out of their own pockets.
In short, it is undoubtedly true that the contraceptive
mandate provides a beneft that many women may fnd
highly desirable, but Congress's enactments show that it has
not regarded the provision of free contraceptives or the fur-
nishing of “seamless” coverage as “compelling.”

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Least restrictive means. Even if the mandate served a
compel
ling interest, the accommodation still would not sat-
isfy the “exceptionally demanding ” least-restrictive-means
standard. Hobby Lobby, 573 U. S., at 728. To meet this
standard, the Government must “sho[w] that it lacks other
means of achieving its desired goal without imposing a sub-
stantial burden on the exercise of religion.” Ibid.; see also
Holt v. Hobbs, 574 U. S. 352, 365 (2015) (“ `[I]f a less restric-
tive means is available for the Government to achieve its
goals, the Government must use it' ”).
In Hobby Lobby, we observed that the Government has
“other means” of prov iding cost-free contraceptives to
women “without imposing a substantial burden on the exer-
cise of religion by the objecting parties.” 573 U. S., at 728.
“The most straightforward way,” we noted, “would be for
the Government to assume the cost of providing the . . . con-
traceptives . . . to any women who are unable to obtain them
under their health-insurance policies.” Ibid. In the con-
text of federal funding for health insurance, the cost of such
a program would be “minor.” Id., at 729.
11
The Government argued that we should not take this op-
tion into account because it lacked statutory authority to cre-
ate such a program, see ibid., but we rejected that argument,
11
In 2019, the Government is estimated to have spent $737 billion subsi-
dizing health insurance for individuals under the age of 65; $287 billion of
that went to employment-related coverage. CBO, Federal Subsidies for
Health Insurance for People Under Age 65: 2019 to 2029, pp. 15–16 (2019).
While the cost of contraceptive methods varies, even assuming the most
expensive options, which range around $1,000 a year, the cost of providing
this coverage to the 126,400 women who are estimated to be impacted by
the religious exemption would be $126.4 million. See Kosova, National
Women's Health Network, How Much Do Different Kinds of Birth Control
Cost Without Insurance? (Nov. 17, 2017), http://nwhn.org/much-different-
kinds-birth-control-cost-without-insurance/ (discussing contraceptive
methods rang i ng from $240 to $1,000 per year); 83 Fed. Reg. 57581
(estimating that up to 126,400 women will be affected by the religious
exemption).

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id., at 729–730. Certainly, Congress could create such a pro-
gram
if it thought that providing cost-free contraceptives to
all women was a matter of “paramount” concern.
As the Government now points out, Congress has taken
steps in this direction. “[E]xisting federal, state, and local
programs,” including Medicaid, Title X, and Temporary As-
sistance for Needy Families, already “provide free or subsi-
dized contraceptives to low-income women.” Brief for Peti-
tioners in No. 19–454, at 27; see also 83 Fed. Reg. 57548,
57551 (discussing programs).
12
And many women who work
for employers who have religious objections to the contra-
ceptive mandate may be able to receive contraceptive cover-
age through a family member's health insurance plan.
In sum, the Departments were right to conclude that
applying the accommodation to sincere religious objectors
violates RFRA. See id., at 57546. All three prongs of the
RFRA analysis—substantial burden, compelling interest,
and least restrictive means—necessitate this answer.
III
Once it was apparent that the accommodation ran afoul of
RFRA, the Government was required to eliminate the viola-
tion. RFRA does not specify the precise manner in which
a violation must be remedied; it simply instructs the Govern-
ment to avoid “substantially burden[ing]” the “exercise of
religion”—i. e., to eliminate the violation. § 2000bb–1(a); see
also § 2000bb–1(c) (providing for “appropriate relief ” in judi-
cial suit). Thus, in Hobby Lobby, once we held that applica-
12
The Government recently amended the defnitions for Title X's family
planning program to help facilitate access to contraceptives for women
who work for an employer invoking the religious and moral exemptions.
See 84 Fed. Reg. 7734 (2019). These defnitions now provide that “[f]or the
purpose of considering payment for contraceptive services only,” a “low
income family” “includes members of families whose annual income” would
otherwise exceed the threshold “where a woman has health insurance cov-
erage through an employer [with] a sincerely held religious or moral objec-
tion to providing such [contraceptive] coverage.” 42 CFR § 59.2(2) (2019).

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tion of the mandate to the objecting parties violated RFRA,
we
left it to the Departments to decide how best to rectify
this problem. See 573 U. S., at 736; 79 Fed. Reg. 51118
(2014) (proposing to modify the accommodation to extend it
to closely held corporations in light of Hobby Lobby); 80 Fed.
Reg. 41324 (fnal rule explaining that “[t]he Departments be-
lieve that the defnition adopted in these regulations com-
plies with and goes beyond what is required by RFRA and
Hobby Lobby”).
The same principle applies here. Once it is recognized
that the prior accommodation violated RFRA in some of its
applications, it was incumbent on the Departments to elimi-
nate those violations, and they had discretion in crafting
what they regarded as the best solution.
The solution they devised cures the problem, and it is not
clear that any narrower exemption would have been suff-
cient with respect to parties with religious objections to the
accommodation. As noted, after great effort, the Govern-
ment concluded that it was not possible to solve the problem
without using an “employer's plan, issuer, or third party ad-
ministrator.” 83 Fed. Reg. 57546. As a result, the Depart-
ments turned to the current rule, under which an objecting
party must certify that it “objects, based on its sincerely held
religious beliefs, to its establishing, maintaining, providing,
offering, or arranging for (as applicable)” either “[c]overage or
payments for some or all contraceptive services” or “[a] plan,
issuer, or third party administrator that provides or arranges
such coverage or payments.” 45 CFR §§ 147.132(a)(2)(i)–(ii).
The States take exception to the new religious rule on
several grounds. First, they complain that it grants an ex-
emption to some employers who were satisfed with the prior
accommodation, but there is little basis for this argument.
An employer who is satisfed with the accommodation may
continue to operate under that regime. See §§ 147.131(c)–
(d); 83 Fed. Reg. 57569–57571. And unless an employer has
a religious objection to the accommodation, it is unclear why

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an employer would give it up. The accommodation does not
i
mpose any cost on an employer, and it provides an added
beneft for the employer's work force.
The States also object to the new rule because it makes
exemptions available to publicly traded corporations, but the
Government is “not aware” of any publicly traded corpora-
tions that object to compliance with the mandate. Id., at
57562. For all practical purposes, therefore, it is not clear
that the new rule's provisions concerning entities that object
to the mandate on religious grounds go any further than nec-
essary to bring the mandate into compliance with RFRA.
In any event, while RFRA requires the Government to
employ the least restrictive means of furthering a compelling
interest that burdens religious belief, it does not require the
converse—that an accommodation of religious belief be nar-
rowly tailored to further a compelling interest. The latter
approach, which is advocated by the States, gets RFRA en-
tirely backwards. See Brief for Respondents 45 (“RFRA
could require the religious exemption only if it was the least
restrictive means of furthering [the Government's compel-
ling interest]”). Nothing in RFRA requires that a violation
be remedied by the narrowest permissible corrective.
Needless to say, the remedy for a RFRA problem cannot
violate the Constitution, but the new rule does not have that
effect. The Court has held that there is a constitutional
right to purchase and use contraceptives. Griswold v. Con-
necticut, 381 U. S. 479 (1965); Carey v. Population Services
Int'l, 431 U. S. 678 (1977). But the Court has never held
that there is a constitutional right to free contraceptives.
The dissent and the court below suggest that the new rule
is improper because it imposes burdens on the employees of
entities that the rule exempts, see post, at 723–726; 930 F. 3d,
at 573–574,
13
but the rule imposes no such burden. A
13
Both the dissent and the court below refer to the statement in Cutter
v. Wilkinson, 544 U. S. 709, 720 (2005), that “courts must take adequate
account of the burdens a requested accommodation may impose on nonben-

704 LITTLE
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Kagan, J., concurring in judgment
woman who does not have the beneft of contraceptive cover-
age
under her employer's plan is not the victim of a burden
imposed by the rule or her employer. She is simply not the
benefciary of something that federal law does not provide.
She is in the same position as a woman who does not work
outside the home or a woman whose health insurance is pro-
vided by a grandfathered plan that does not pay for contra-
ceptives or a woman who works for a small business that
may not provide any health insurance at all.
***
I would hold not only that it was appropriate for the De-
partments to consider RFRA but also that the Departments
were required by RFRA to create the religious exemption
(or something very close to it). I would bring the Little
Sisters' legal odyssey to an end.
Justice Kagan, with whom Justice Breyer joins, con-
curring in the judgment.
I would uphold HRSA's statutory authority to exempt cer-
tain employers from the contraceptive-coverage mandate,
but for different reasons than the Court gives. I also write
separately because I question whether the exemptions can
survive administrative law's demand for reasoned decision-
making. That issue remains open for the lower courts to
address.
The majority and dissent dispute the breadth of the dele-
gation in the Women's Health Amendment to the ACA. The
efciaries,” but that statement was made in response to the argument that
RFRA's twin, the Religious Land Use and Institutionalized Persons Act,
42 U. S. C. § 2000cc et seq., violated the Establishment Clause. The only
case cited by Cutter in connection with this statement, Estate of Thornton
v. Caldor, Inc., 472 U. S. 703 (1985), involved a religious accommodation
that the Court held violated the Establishment Clause. Before this
Court, the States do not argue––and there is no basis for an argument—
that the new rule violates that Clause.

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705
Kagan, J., concurring in judgment
Amendment states that a health plan or insurer must offer
coverage
for “preventive care and screenings . . . as provided
for in comprehensive guidelines supported by [HRSA] for
purposes of this paragraph.” 42 U. S. C. § 300gg–13(a)(4).
The disputed question is just what HRSA can “provide for.”
Both the majority and the dissent agree that HRSA's guide-
lines can differentiate among preventive services, mandating
coverage of some but not others. The opinions disagree
about whether those guidelines can also differentiate among
health plans, exempting some but not others from the
contraceptive-coverage requirement. On that question, all
the two opinions have in common is equal certainty they are
right. Compare ante, at 677 (majority opinion) (Congress
“enacted expansive language offer[ing] no indication what-
ever that the statute limits what HRSA can designate as
preventive care and screenings or who must provide that
coverage” (internal quotation marks omitted)), with post, at
718 (Ginsburg, J., dissenting) (“Nothing in [the statute]
accord[s] HRSA authority” to decide “who must provide
coverage” (internal quotation marks omitted; emphasis in
original)).
Try as I might, I do not fnd that kind of clarity in the
statute. Sometimes when I squint, I read the law as giving
HRSA discretion over all coverage issues: The agency gets
to decide who needs to provide what services to women. At
other times, I see the statute as putting the agency in charge
of only the “what” question, and not the “who.” If I had to,
I would of course decide which is the marginally better read-
ing. But Chevron deference was built for cases like these.
See Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837, 842–843 (1984); see also Arling-
ton v. FCC, 569 U. S. 290, 301 (2013) (holding that Chevron
applies to questions about the scope of an agency's statutory
authority). Chevron instructs that a court facing statutory
ambiguity should accede to a reasonable interpretation by
the implementing agency. The court should do so because

706 LITTLE
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Kagan, J., concurring in judgment
the agency is the more politically accountable actor. See
467
U. S., at 865–866. And it should do so because the
agency's expertise often enables a sounder assessment of
which reading best fts the statutory scheme. See id.,
at 865.
Here, the Departments have adopted the majority's read-
ing of the statutory delegation ever since its enactment.
Over the course of two administrations, the Departments
have shifted positions on many questions involving the
Women's Health Amendment and the ACA more broadly.
But not on whether the Amendment gives HRSA the ability
to create exemptions to the contraceptive-coverage mandate.
HRSA adopted the original church exemption on the same
capacious understanding of its statutory authority as the De-
partments endorse today. See 76 Fed. Reg. 46623 (2011)
(“In the Departments' view, it is appropriate that HRSA, in
issuing these Guidelines, takes into account the effect on the
religious beliefs of certain religious employers if coverage of
contraceptive services were required”).
1
While the exemp-
tion itself has expanded, the Departments' reading of the
statutory delegation—that the law gives HRSA discretion
over the “who” question—has remained the same. I would
defer to that longstanding and reasonable interpretation.
1
The First Amendment cannot have separately justifed the church ex-
emption, as the dissent suggests. See post, at 721–722 (opinion of Gins-
burg, J.). That exemption enables a religious institution to decline to
provide contraceptive coverage to all its employees, from a minister to a
building custodian. By contrast, the so-called ministerial exception of the
First Amendment (which the dissent cites, see post, at 722) extends only to
select employees, having ministerial status. See Our Lady of Guadalupe
School v. Morrissey-Berru, 591 U. S. 732, 749–751 (2020); Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 190
(2012). (Too, this Court has applied the ministerial exception only to pro-
tect religious institutions from employment discrimination suits, expressly
reserving whether the exception excuses their noncompliance with other
laws. See id., at 196.) And there is no general constitutional immunity,
over and above the ministerial exception, that can protect a religious insti-
tution from the law's operation.

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707
Kagan, J., concurring in judgment
But that does not mean the Departments should prevail
when
these cases return to the lower courts. The States
challenged the exemptions not only as outside HRSA's statu-
tory authority, but also as “arbitrary [and] capricious.” 5
U. S. C. § 706(2)(A). Because the courts below found for the
States on the frst question, they declined to reach the sec-
ond. That issue is now ready for resolution, unaffected by
today's decision. An agency acting within its sphere of dele-
gated authority can of course funk the test of “reasoned deci-
sionmaking.” Michigan v. EPA, 576 U. S. 743, 750 (2015).
The agency does so when it has not given “a satisfactory
explanation for its action”—when it has failed to draw a “ra-
tional connection” between the problem it has identifed and
the solution it has chosen, or when its thought process re-
veals “a clear error of judgment.” Motor Vehicle Mfrs.
Assn. of United States, Inc. v. State Farm Mut. Automobile
Ins. Co., 463 U. S. 29, 43 (1983) (internal quotation marks
omitted). Assessed against that standard of reasonableness,
the exemptions HRSA and the Departments issued give
every appearance of coming up short.
2
Most striking is a mismatch between the scope of the reli-
gious exemption and the problem the agencies set out to ad-
dress. In the Departments' view, the exemption was “nec-
essary to expand the protections” for “certain entities and
individuals” with “religious objections” to contraception. 83
Fed. Reg. 57537 (2018). Recall that under the old system,
an employer objecting to the contraceptive mandate for reli-
gious reasons could avail itself of the “self-certifcation accom-
modation.” Ante, at 667. Upon making the certifcation,
the employer no longer had “to contract, arrange, [or] pay”
for contraceptive coverage; instead, its insurer would bear
the services' cost. 78 Fed. Reg. 39874 (2013). That device
dispelled some employers' objections—but not all. The Lit-
2
I speak here only of the substantive validity of the exemptions. I
agree with the Court that the fnal rules issuing the exemptions were
procedurally valid.

708 LITTLE
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Kagan, J., concurring in judgment
tle Sisters, among others, maintained that the accommoda-
ti
on itself made them complicit in providing contraception.
The measure thus failed to “assuage[ ]” their “sincere reli-
gious objections.” 82 Fed. Reg. 47799 (2017). Given that
fact, the Departments might have chosen to exempt the Lit-
tle Sisters and other still-objecting groups from the mandate.
But the Departments went further still. Their rule ex-
empted all employers with objections to the mandate, even
if the accommodation met their religious needs. In other
words, the Departments exempted employers who had no
religious objection to the status quo (because they did not
share the Little Sisters' views about complicity). The rule
thus went beyond what the Departments' justifcation sup-
ported—raising doubts about whether the solution lacks
a “rational connection” to the problem described. State
Farm, 463 U. S., at 43.
3
And the rule's overbreadth causes serious harm, by the
Departments' own lights. In issuing the rule, the Depart-
ments chose to retain the contraceptive mandate itself. See
83 Fed. Reg. 57537. Rather than dispute HRSA's prior
fnding that the mandate is “necessary for women's health
and well-being,” the Departments left that determination
in place. HRSA, Women's Preventive Services Guidelines
3
At oral argument, the Solicitor General argued that the rule's overin-
clusion is harmless because the accommodation remains available to all
employers who qualify for the exemption. See Tr. of Oral Arg. 20–23.
But in their fnal rule, the Departments themselves acknowledged the
prospect that some employers without a religious objection to the accom-
modation would switch to the exemption. See 83 Fed. Reg. 57576–57577
(“Of course, some of the[ ] religious” institutions that “do not conscien-
tiously oppose participating ” in the accommodation “may opt for the ex-
panded exemption[,] but others might not”); id., at 57561 (“[I]t is not clear
to the Departments” how many of the religious employers who had used
the accommodation without objection “will choose to use the expanded
exemption instead”). And the Solicitor General, when pressed at argu-
ment, could offer no evidence that, since the rule took effect, employers
without the Little Sisters' complicity beliefs had declined to avail them-
selves of the new exemption. Tr. of Oral Arg. 22.

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709
Kagan, J., concurring in judgment
(Dec. 2019), www.hrsa.gov/womens-guidelines-2019; see 83
F
ed. Reg. 57537. The Departments thus committed them-
selves to minimizing the impact on contraceptive coverage,
even as they sought to protect employers with continuing
religious objections. But they failed to fulfll that commit-
ment to women. Remember that the accommodation pre-
serves employees' access to cost-free contraceptive coverage,
while the exemption does not. See ante, at 666–667. So
the Departments (again, according to their own priorities)
should have exempted only employers who had religious ob-
jections to the accommodation—not those who viewed it as
a religiously acceptable device for complying with the man-
date. The Departments' contrary decision to extend the ex-
emption to those without any religious need for it yielded all
costs and no benefts. Once again, that outcome is hard to
see as consistent with reasoned judgment. See State Farm,
463 U. S., at 43.
4
Other aspects of the Departments' handiwork may also
prove arbitrary and capricious. For example, the Depart-
ments allow even publicly traded corporations to claim a reli-
gious exemption. See 83 Fed. Reg. 57562–57563. That op-
tion is unusual enough to raise a serious question about
whether the Departments adequately supported their choice.
Cf. Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682, 717
(2014) (noting the oddity of “a publicly traded corporation
asserting RFRA rights”). Similarly, the Departments offer
an exemption to employers who have moral, rather than reli-
gious, objections to the contraceptive mandate. Perhaps
4
In a brief passage in the interim fnal rule, the Departments suggested
that an exemption is “more workable” than the accommodation in address-
ing religious objections to the mandate. 82 Fed. Reg. 47806. But the
Departments continue to provide the accommodation to any religious em-
ployers who request that option, thus maintaining a two-track system.
See ante, at 671; n. 3, supra. So ease of administration cannot support,
at least without more explanation, the Departments' decision to offer the
exemption more broadly than needed.

710 LITTLE
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Ginsburg, J., dissenting
there are suffcient reasons for that decision—for example, a
desire
to stay neutral between religion and non-religion.
See 83 Fed. Reg. 57603–57604. But RFRA cast a long
shadow over the Departments' rulemaking, see ante, at 680–
683, and that statute does not apply to those with only moral
scruples. So a careful agency would have weighed anew, in
this different context, the benefts of exempting more em-
ployers from the mandate against the harms of depriving
more women of contraceptive coverage. In the absence of
such a reassessment, it seems a close call whether the moral
exemption can survive.
None of this is to say that the Departments could not issue
a valid rule expanding exemptions from the contraceptive
mandate. As noted earlier, I would defer to the Depart-
ments' view of the scope of Congress's delegation. See
supra, at 706. That means the Departments (assuming they
act hand-in-hand with HRSA) have wide latitude over ex-
emptions, so long as they satisfy the requirements of rea-
soned decisionmaking. But that “so long as” is hardly noth-
ing. Even in an area of broad statutory authority—maybe
especially there—agencies must rationally account for their
judgments.
Justice Ginsburg, w ith whom Justice Sotomayor
joins, dissenting.
In accommodating claims of religious freedom, this Court
has taken a balanced approach, one that does not allow the
religious beliefs of some to overwhelm the rights and inter-
ests of others who do not share those beliefs. See, e. g., Es-
tate of Thornton v. Caldor, Inc., 472 U. S. 703, 708–710
(1985); United States v. Lee, 455 U. S. 252, 258–260 (1982).
Today, for the frst time, the Court casts totally aside coun-
tervailing rights and interests in its zeal to secure religious
rights to the nth degree. Specifcally, in the Women's
Health Amendment to the Patient Protection and Affordable

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711
Ginsburg, J., dissenting
Care Act (ACA), 124 Stat. 119; 155 Cong. Rec. 28841 (2009),
Congress
undertook to afford gainfully employed women
comprehensive, seamless, no-cost insurance coverage for pre-
ventive care protective of their health and well-being. Con-
gress delegated to a particular agency, the Health Resources
and Services Administration (HRSA), authority to designate
the preventive-care insurance should cover. HRSA in-
cluded in its designation all contraceptives approved by the
Food and Drug Administration (FDA).
Destructive of the Women's Health Amendment, this
Court leaves women workers to fend for themselves, to seek
contraceptive coverage from sources other than their em-
ployer's insurer, and, absent another available source of
funding, to pay for contraceptive services out of their own
pockets. The Constitution's Free Exercise Clause, all agree,
does not call for that imbalanced result.
1
Nor does the Reli-
gious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C.
§ 2000bb et seq., condone harm to third parties occasioned by
entire disregard of their needs. I therefore dissent from the
Court's judgment, under which, as the Government esti-
mates, between 70,500 and 126,400 women would immedi-
ately lose access to no-cost contraceptive services. On the
merits, I would affrm the judgment of the U. S. Court of
Appeals for the Third Circuit.
1
In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494
U. S. 872 (1990), the Court explained that “the right of free exercise does
not relieve an individual of the obligation to comply with a valid and neu-
tral law of general applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes).” Id., at
879 (internal quotation marks omitted). The requirement that insurers
cover FDA-approved methods of contraception “applies generally, . . .
trains on women's well-being, not on the exercise of religion, and any effect
it has on such exercise is incidental.” Burwell v. Hobby Lobby Stores,
Inc., 573 U. S. 682, 745 (2014) (Ginsburg, J., dissenting). Smith forecloses
“[a]ny First Amendment Free Exercise Clause claim [one] might assert”
in opposition to that requirement. 573 U. S., at 744.

712 LITTLE
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Ginsburg, J., dissenting
I
A
U
nder the ACA, an employer-sponsored “group health
plan” must cover specifed “preventive health services” with-
out “cost sharing,” 42 U. S. C. § 300gg–13, i. e., without such
out-of-pocket costs as copays or deductibles.
2
Those enu-
merated services did not, in the original draft bill, include
preventive care specifc to women. “To correct this over-
sight, Senator Barbara Mikulski introduced the Women's
Health Amendment,” now codifed at § 300gg–13(a)(4). Bur-
well v. Hobby Lobby Stores, Inc., 573 U. S. 682, 741 (2014)
(Ginsburg, J., dissenting); see also 155 Cong. Rec. 28841.
Th is prov isi on was desig ned “ to promote equa l ity i n
women's access to health care,” countering gender-based
discrimination and disparities in such access. Brief for
186 Members of the United States Congress as Amici Cu-
riae 6 (hereinafter Brief for 186 Members of Congress). Its
proponents noted, inter alia, that “[w]omen paid signif-
cantly more than men for preventive care,” and that “cost
barriers operated to block many women from obtaining
needed care at all.” Hobby Lobby, 573 U. S., at 742 (Gins-
burg, J., dissenting); see, e. g., 155 Cong. Rec. 28844 (state-
ment of Sen. Hagan) (“When . . . women had to choose be-
tween feeding their children, paying the rent, and meeting
other fnancial obligations, they skipped important preven-
2
This requirement does not apply to employers with fewer than 50 em-
ployees, 26 U. S. C. § 4980H(c)(2), or “grandfathered health plans”—plans
in existence on March 23, 2010 that have not thereafter made specifed
changes in coverage, 42 U. S. C. § 18011(a), (e); 45 CFR § 147.140(g) (2018).
“Federal statutes often include exemptions for small employers, and such
provisions have never been held to undermine the interests served by
these statutes.” Hobby Lobby, 573 U. S., at 763 (Ginsburg, J., dissent-
ing). “[T]he grandfathering provision,” “far from ranking as a categorical
exemption, . . . is temporary, intended to be a means for gradually transi-
tioning employers into mandatory coverage.” Id., at 764 (internal quota-
tion marks omitted).

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713
Ginsburg, J., dissenting
tive screeni ngs and took a chance w ith their persona l
hea
lth.”).
Due to the Women's Health Amendment, the preventive
health services that group health plans must cover include,
“with respect to women,” “preventive care and screenings
. . . provided for in comprehensive guidelines supported by
[HRSA].” § 300gg–13(a)(4). Pursuant to this instruction,
HRSA undertook, after consulting the Institute of Medicine,
3
to state “what preventive services are necessary for women's
health and well-being and therefore should be considered in
the development of comprehensive guidelines for preventive
services for women.”
4
The resulting “Women's Preventive
Services Guidelines” issued in August 2011.
5
Under these
guidelines, millions of women who previously had no, or poor
quality, health insurance gained cost-free access, not only to
contraceptive services but as well to, inter alia, annual
checkups and screenings for breast cancer, cervical cancer,
postpartum depression, and gestational diabetes.
6
As to
contraceptive services, HRSA directed that, to implement
§ 300gg–13(a)(4), women's preventive services encompass “all
[FDA-]approved contraceptive methods, sterilization proce-
dures, and patient education and counseling for all women
with reproductive capacity.”
7
3
“The [Institute of Medicine] is an arm of the National Academy of Sci-
ences, an organization Congress established for the explicit purpose of
furnishing advice to the Government.” Id., at 742, n. 3 (internal quota-
tion marks omitted).
4
HRSA, U. S. Dept. of Health and Human Services (HHS), Women's
Preventive Serv ices Guideli nes, www.hrsa.gov/womens-g uideli nes/
index.html.
5
77 Fed. Reg. 8725 (2012).
6
HRSA, HHS, Women's Preventive Services Guidelines, supra.
7
77 Fed. Reg. 8725 (alterations and internal quotation marks omitted).
Proponents of the Women's Health Amendment specifcally anticipated
that HRSA would require coverage of family planning services. See, e. g.,
155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer); id., at 28843 (state-
ment of Sen. Gillibrand); id., at 28844 (statement of Sen. Mikulski); id., at
28869 (statement of Sen. Franken); id., at 28876 (statement of Sen. Cardin);

714 LITTLE
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Ginsburg, J., dissenting
Ready access to contraceptives and other preventive meas-
ures
for which Congress set the stage in § 300gg–13(a)(4)
both safeguards women's health and enables women to chart
their own life's course. Effective contraception, it bears
particular emphasis, “improves health outcomes for women
and [their] children,” as “women with unintended pregnan-
cies are more likely to receive delayed or no prenatal care”
than women with planned pregnancies. Brief for 186 Mem-
bers of Congress 5 (internal quotation marks omitted); Brief
for American College of Obstetricians and Gynecologists
et al. as Amici Curiae 10 (hereinafter ACOG Brief ) (similar).
Contraception is also “critical for individuals with underly-
ing medical conditions that would be further complicated by
pregnancy” “has . . . health benefts unrelated to preventing
pregnancy,” (e. g., it can reduce the risk of endometrial and
ovarian cancer), Brief for National Women's Law Center
et al. as Amici Curiae 23–24, 26 (hereinafter NWLC Brief ),
and “improves women's social and economic status,” by
“allow[ing] [them] to invest in higher education and a career
with far less risk of an unplanned pregnancy,” Brief for
186 Members of Congress 5–6 (internal quotation marks
omitted).
B
For six years, the Government took care to protect women
employees' access to critical preventive health services while
accommodating the diversity of religious opinion on contra-
ception. The Internal Revenue Service (IRS), the Em-
ployee Benefts Security Administration (EBSA), and the
Center for Medicare and Medicaid Services (CMS) crafted a
narrow exemption relieving houses of worship, “their inte-
grated auxi l iar ies, ” “conventi ons or associati ons of
churches,” and “religious order[s]” from the contraceptive-
coverage requirement. 76 Fed. Reg. 46623 (2011). For
ib i d. (st atement of Sen. Fei nstei n); i d., at 29307 (st atement of Sen.
Murray).

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715
Ginsburg, J., dissenting
other nonproft and closely held for-proft organizations op-
posed
to contraception on religious grounds, the agencies
made available an accommodation rather than an exemption.
See 78 Fed. Reg. 39874 (2013); Hobby Lobby, 573 U. S., at
730–731.
“Under th[e] accommodation, [an employer] can self-
certify that it opposes providing coverage for particular
contraceptive services. See 45 CFR §§ 147.131(b)(4),
(c)(1) [(2013)]; 26 CFR §§ 54.9815–2713A(a)(4), (b). If
[an employer] makes such a certifcation, the [employ-
er's] insurance issuer or third-party administrator must
`[e]xpressly exclude contraceptive coverage from the
group health insurance coverage provided in connection
with the group health plan' and `[p]rovide separate pay-
ments for any contraceptive services required to be cov-
ered' without imposing `any cost-sharing requirements
. . . on the [employer], the group health plan, or plan
participants or benefciaries.' 45 CFR § 147.131(c)(2); 26
CFR § 54.9815–2713A(c)(2).” Id., at 731 (some alter-
ations in original).
8
The self-certifcation accommodation, the Court observed
in Hobby Lobby, “does not impinge on [an employer's] belief
that providing insurance coverage for . . . contraceptives . . .
violates [its] religion.” Ibid. It serves “a Government in-
terest of the highest order,” i. e., providing women employ-
ees “with cost-free access to all FDA-approved methods of
contraception.” Id., at 729. And “it serves [that] stated in-
teres[t] . . . well.” Id., at 731; see id., at 693 (Government
properly accommodated employer's religion-based objection
8
This opinion refers to the contraceptive-coverage accommodation made
in 2013 as the “self-certifcation accommodation.” See ante, at 667 (opin-
ion of the Court). Although this arrangement “requires the issuer to bear
the cost of [contraceptive] services, HHS has determined that th[e] obliga-
tion will not impose any net expense on issuers because its cost will be
less than or equal to the cost savings resulting from th[ose] services.”
Hobby Lobby, 573 U. S., at 698–699.

716 LITTLE
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Ginsburg, J., dissenting
to covering contraceptives under employer's health insur-
ance
plan when the harm to women of doing so “would be
precisely zero”). Since the ACA's passage, “[gainfully em-
ployed] [w]omen, particularly in lower-income groups, have
reported greater affordability of coverage, access to health
care, and receipt of preventive services.” Brief for 186
Members of Congress 21.
C
Religious employers, including petitioner Little Sisters of
the Poor Saints Peter and Paul Home (Little Sisters), none-
theless urge that the self-certifcation accommodation ren-
ders them “complicit in providing [contraceptive] coverage to
which they sincerely object.” Brief for Little Sisters 35.
In 2017, responsive to the pleas of such employers, the Gov-
ernment abandoned its effort to both end discrimination
against employed women in access to preventive services
and accommodate religious exercise. Under new rules
drafted not by HRSA, but by the IRS, EBSA, and CMS, any
“non-governmental employer”—even a publicly traded for-
proft company—can avail itself of the religious exemption
previously reserved for houses of worship. 82 Fed. Reg.
47792 (2017) (interim fnal rule); 45 CFR § 147.132(a)(1)(i)(E)
(2018).
9
More than 2.9 million Americans—including ap-
proximately 580,000 women of childbearing age—receive in-
surance through organizations newly eligible for this blanket
exemption. 83 Fed. Reg. 57577–57578 (2018). Of cardinal
signifcance, the exemption contains no alternative mecha-
nism to ensure affected women's continued access to contra-
ceptive coverage. See 45 CFR § 147.132.
Pennsylvania and New Jersey, respondents here, sued to
enjoin the exemption. Their lawsuit posed this core ques-
9
Nonproft and closely held for-proft organizations with “sincerely held
moral convictions” against contraception also qualify for the exemption.
45 CFR § 147.133(a)(1)(i), (a)(2). Unless otherwise noted, this opinion re-
fers to the religious and moral exemptions together as “the exemption” or
“the blanket exemption.”

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tion: May the Government jettison an arrangement that pro-
motes
women workers' well-being while accommodating em-
ployers' religious tenets and, instead, defer entirely to
employers' religious beliefs, although that course harms
women who do not share those beliefs? The District Court
answered “no,” and preliminarily enjoined the blanket ex-
emption nationwide. 281 F. Supp. 3d 553, 585 (ED Pa. 2017).
The Court of Appeals affrmed. 930 F. 3d 543, 576 (CA3
2019). The same question is now presented for ultimate de-
cision by this Court.
II
Despite Congress' endeavor, i n the Women's Hea lth
Amendment to the ACA, to redress discrimination against
women in the provision of healthcare, the exemption the
Court today approves would leave many employed women
just where they were before insurance issuers were obliged
to cover preventive services for them, cost free. The Gov-
ernment urges that the ACA itself authorizes this result, by
delegating to HRSA authority to exempt employers from the
contraceptive-coverage requirement. This argument gains
the Court's approbation. It should not.
A
I begin with the statute's text. But see ante, at 678 (opin-
ion of the Court) (overlooking my starting place). The
ACA's preventive-care provision, 42 U. S. C. § 300gg–13(a),
reads in full:
“A group health plan and a health insurance issuer
offering group or individual health insurance coverage
shall, at a minimum provide coverage for and shall not
impose any cost sharing requirements for—
“(1) evidence-based items or services that have in ef-
fect a rating of `A' or `B' in the current recommendations
of the United States Preventive Services Task Force;
“(2) immunizations that have in effect a recommenda-
tion from the Advisory Committee on Immunization

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Practices of the Centers for Disease Control and Preven-
ti
on with respect to the individual involved; . . .
“(3) with respect to infants, children, and adolescents,
evidence-informed preventive care and screenings pro-
vided for in the comprehensive guidelines supported by
[HRSA; and]
“(4) with respect to women, such additional preven-
tive care and screenings not described in paragraph (1)
as provided for in comprehensive guidelines supported
by [HRSA] for purposes of this paragraph.”
At the start of this provision, Congress instructed who
is to “provide coverage for” the specifed preventive health
services: “group health plan[s]” and “health insurance issu-
er[s].” § 300gg–13(a). As the Court of Appeals explained,
paragraph (a)(4), added by the Women's Health Amendment,
granted HRSA “authority to issue `comprehensive guide-
lines' concern[ing] the type of services” group health plans
and health insurance issuers must cover with respect to
women. 930 F. 3d, at 570 (emphasis added). Nothing in
paragraph (a)(4) accorded HRSA “authority to undermine
Congress's [initial] directive,” stated in subsection (a), “con-
cerning who must provide coverage for these services.”
Ibid. (emphasis added).
The Government argues otherwise, asserting that “[t]he
sweeping authorization for HRSA to `provide[ ] for' and `sup-
port[ ]' guidelines `for purposes of ' the women's preventive-
services mandate clearly grants HRSA the power not just to
specify what services should be covered, but also to provide
appropriate exemptions.” Brief for HHS et al. 15.
10
This
terse statement—the entirety of the Government's textual
case—slights the language Congress employed. Most visi-
bly, the Government does not endeavor to explain how any
10
This opinion uses “Brief for HHS et al.” to refer to the Brief for Peti-
tioners in No. 19–454, fled on behalf of the Departments of HHS, Treas-
ury, and Labor, the Secretaries of those Departments, and the President.

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Ginsburg, J., dissenting
language in paragraph (a)(4) counteracts Congress' opening
i
nstruction in § 300gg–13(a) that group health plans “shall . . .
provide” specifed services. See supra, at 717–718.
The Court embraces, and the opinion concurring in the
judgment adopts, the Government's argument. The Court
correctly acknowledges that HRSA has broad discretion to
determine what preventive services insurers should provide
for women. Ante, at 678. But it restates that HRSA's “dis-
cretion [is] equally unchecked in other areas, including the
ability to identify and create exemptions from its own Guide-
lines.” Ibid. See also ante, at 705–706 (Kagan, J., concur-
ring in judgment) (agreeing with this interpretation). Like
the Government, the Court and the opinion concurring in the
judgment shut from sight § 300gg–13(a)'s overarching direc-
tion that group health plans and health insurance issuers
“shall” cover the specifed services. See supra, at 717–718
and this page. That “ `absent provision[s] cannot be supplied
by the courts,' ” ante, at 677 (quoting Rotkiske v. Klemm,
589 U. S. 8, 14 (2019), militates against the Court's conclu-
sion, not in favor of it. Where Congress wanted to exempt
certain employers from the ACA's requirements, it said so
expressly. See, e. g., supra, at 712, n. 2. Section 300gg–
13(a)(4) includes no such exemption. See supra, at 717–718
and this page.
11
B
The position advocated by the Government and endorsed
by the Court and the opinion concurring in the judgment
encounters further obstacles.
Most saliently, the language in § 300gg–13(a)(4) mirrors
that in § 300gg–13(a)(3), the provision addressing children's
preventive health services. Not contesting here that HRSA
11
The only language to which the Court points in support of its contrary
conclusion is the phrase “as provided for.” See ante, at 676. This phrase
modifes “additional preventive care and screenings.” § 300gg–13(a)(4).
It therefore speaks to what services shall be provided, not who must pro-
vide them.

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lacks authority to exempt group health plans from the chil-
dren'
s preventive-care guidelines, the Government attempts
to distinguish paragraph (a)(3) from paragraph (a)(4). Brief
for HHS et al. 16–17. The attempt does not withstand
inspection.
The Government frst observes that (a)(4), unlike (a)(3),
contemplates guidelines created “for purposes of this para-
graph.” (Emphasis added.) This language does not speak
to the scope of the guidelines HRSA is charged to create.
Moreover, the Government itself accounts for this textual
difference: The children's preventive-care guidelines de-
scribed in paragraph (a)(3) were “preexisting guidelines . . .
developed for purposes unrelated to the ACA.” Brief for
HHS et al. 16. The guidelines on women's preventive care,
by contrast, did not exist before the ACA; they had to
be created “for purposes of ” the preventive-care mandate.
§ 300gg–13(a)(4). The Government next points to the mod-
ifer “evidence-informed” placed in (a)(3), but absent in (a)(4).
This omission, however it may bear on the kind of preventive
services for women HRSA can require group health insur-
ance to cover, does not touch or concern who is required to
cover those services.
12
HRSA's role within HHS also tugs against the Govern-
ment's, the Court's, and the opinion concurring in the judg-
ment's construction of § 300gg–13(a)(4). That agency was a
logical choice to determine what women's preventive services
should be covered, as its mission is to “improve health care ac-
cess” and “eliminate health disparities.”
13
First and fore-
most, § 300gg–13(a)(4) is directed at eradicating gender-based
disparities in access to preventive care. See supra, at 712–
713. Overlooked by the Court, see ante, at 675–679, and the
12
The Court does not say whether, in its view, the exemption authority
it claims for women's preventive care exists as well for HRSA's children's
preventive-care guidelines.
13
HRSA, HHS, Organization, www.hrsa.gov/about/organization/ index
.html.

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Ginsburg, J., dissenting
opinion concurring in the judgment, see ante, at 705–706
(
opinion of Kagan, J.), HRSA's expertise does not include any
profciency in delineating religious and moral exemptions.
One would not, therefore, expect Congress to delegate to
HRSA the task of crafting such exemptions. See King v.
Burwell, 576 U. S. 473, 486 (2015) (“It is especially unlikely
that Congress would have delegated this decision to [an
agency] which has no expertise in . . . policy of this sort.”).
14
In fact, HRSA did not craft the blanket exemption. As
earlier observed, see supra, at 716, that task was under-
taken by the IRS, EBSA, and CMS. See also 45 CFR
§ 147.132(a)(1), 147.133(a)(1) (direction by the IRS, EBSA,
and CMS that HRSA's guidelines “must not provide for”
contraceptive coverage in the circumstances described in the
blanket exemption (emphasis added)). Nowhere in 42
U. S. C. § 300gg–13(a)(4) are those agencies named, as earlier
observed, see supra, at 717–718, an absence the Government,
the Court, and the opinion concurring in the judgment do
not deign to acknowledge. See Brief for HHS et al. 15–20;
ante, at 675–679 (opinion of the Court); ante, at 705–706
(opinion of Kagan, J.).
C
If the ACA does not authorize the blanket exemption, the
Government urges, then the exemption granted to houses of
worship in 2011 must also be invalid. Brief for HHS et al.
19–20. As the Court of Appeals explained, however, see
930 F. 3d, at 570, n. 26, the latter exemption is not attribut-
able to the ACA's text; it was justifed on First Amend-
14
A more logical choice would have been HHS's Offce for Civil Rights
(OCR), which “enforces . . . conscience and religious freedom laws” with
respect to HHS programs. HHS, OCR, About Us, www.hhs.gov/ocr/
about-us/ index.html. Indeed, when the Senate introduced an amendment
to the ACA similar in character to the blanket exemption, a measure that
failed to pass, the Senate instructed that OCR administer the exemption.
158 Cong. Rec. 1415 (2012) (proposed amendment); id., at 2634 (vote ta-
bling amendment).

722 LITTLE
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ment grounds. See Hosanna-Tabor Evangelical Lutheran
C
hurch and School v. EEOC, 565 U. S. 171, 188 (2012) (the
First Amendment's “ministerial exception” protects “the in-
ternal governance of [a] church”); 80 Fed. Reg. 41325 (2015)
(the exemption “recogni[zes] [the] particular sphere of auton-
omy [afforded to] houses of worship . . . consistent with their
special status under longstanding tradition in our society”).
15
Even if the house-of-worship exemption extends beyond
what the First Amendment would require, see ante, at 706,
n. 1 (opinion of Kagan, J.), that extension, as just explained,
cannot be extracted from the ACA's text.
16
III
Because I conclude that the blanket exemption gains no
aid from the ACA, I turn to the Government's alternative
argument. The religious exemption, if not the moral ex-
emption, the Government urges, is necessary to protect reli-
gious freedom. The Government does not press a free exer-
cise argument, see supra, at 711, and n. 1, instead invoking
RFRA. Brief for HHS et al. 20–31. That statute instructs
that the “Government shall not substantially burden a per-
son's exercise of religion even if the burden results from a
rule of general applicability,” unless doing so “is the least
15
On the broad scope the Court today attributes to the “ministerial ex-
ception,” see Our Lady of Guadalupe School v. Morrissey-Berru, 591
U. S. 732 (2020).
16
The Government does not argue that my view of the limited compass
of § 300gg–13(a)(4) imperils the self-certifcation accommodation. Brief
for HHS et al. 19–20. But see ante, at 679, n. 9 (opinion of the Court).
That accommodation aligns with the Court's decisions under the Religious
Freedom Restoration Act of 1993 (RFRA). See in fra, at 723–724. It
strikes a balance between women's health and religious opposition to con-
traception, preserving women's access to seamless, no-cost contraceptive
coverage, but imposing the obligation to provide such coverage directly
on insurers, rather than on the objecting employer. See supra, at 715–
716; in fra, at 727–729. The blanket exemption, in contrast, entirely disre-
gards women employees' preventive-care needs.

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Ginsburg, J., dissenting
restrictive means of furthering [a] compelling governmental
i
nterest.” 42 U. S. C. § 2000bb–1(a), (b).
A
1
The parties here agree that federal agencies may craft ac-
commodations and exemptions to cure violations of RFRA.
See, e. g., Brief for Respondents 36.
17
But that authority is
not unbounded. Cutter v. Wilkinson, 544 U. S. 709, 720
(2005) (construing Religious Land Use and Institutionalized
Persons Act of 2000, the Court cautioned that “adequate ac-
count” must be taken of “the burdens a requested accommo-
dation may impose on nonbenefciaries” of the Act); Caldor,
472 U. S., at 708–710 (invalidating state statute requiring
employers to accommodate an employee's religious observ-
ance for failure to take into account the burden such an ac-
commodation would impose on the employer and other em-
ployees). “[O]ne person's right to free exercise must be
kept in harmony with the rights of her fellow citizens.”
Hobby Lobby, 573 U. S., at 765, n. 25 (Ginsburg, J., dissent-
ing). See also id., at 746 (“[Y]our right to swing your arms
ends just where the other man's nose begins.” (quoting
Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev.
932, 957 (1919))).
In this light, the Court has repeatedly assumed that any
religious accommodation to the contraceptive-coverage re-
quirement would preserve women's continued access to
seamless, no-cost contraceptive coverage. See Zubik v.
Burwell, 578 U. S. 403, 408 (2016) (per curiam) (“[T]he par-
ties on remand should be afforded an opportunity to arrive
17
But see, e. g., Brief for Professors of Criminal Law et al. as Amici
Curiae 8–11 (RFRA does not grant agencies independent rulemaking au-
thority; instead, laws allegedly violating RFRA must be challenged in
court). No party argues that agencies can act to cure violations of RFRA
only after a court has found a RFRA violation, and this opinion does not
adopt any such view.

724 LITTLE
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Ginsburg, J., dissenting
at an approach . . . that accommodates petitioners' religious
exercise
while . . . ensuring that women covered by petition-
ers' health plans receive full and equal health coverage, in-
cluding contraceptive coverage.” (internal quotation marks
omitted)); Wheaton College v. Burwell, 573 U. S. 958, 959
(2014) (“Nothing in this interim order affects the ability of
applicant's employees and students to obtain, without cost,
the full range of [FDA] approved contraceptives.”); Hobby
Lobby, 573 U. S., at 692 (“There are other ways in which Con-
gress or HHS could equally ensure that every woman has
cost-free access to . . . all [FDA]-approved contraceptives.
In fact, HHS has already devised and implemented a sys-
tem that seeks to respect the religious liberty of religious
nonproft corporations while ensuring that the employees
of these entities have precisely the same access to a l l
FDA-approved contraceptives as employees of [other]
companies.”).
The assumption made in the above-cited cases rests on the
basic principle just stated, one on which this dissent relies:
While the Government may “accommodate religion beyond
free exercise requirements,” Cutter, 544 U. S., at 713, when
it does so, it may not beneft religious adherents at the ex-
pense of the rights of third parties. See, e. g., id., at 722
(“[A]n accommodation must be measured so that it does not
override other signifcant interests.”); Caldor, 472 U. S., at
710 (religious exemption was invalid for its “unyielding
weighting in favor of ” interests of religious adherents “over
all other interests”). Holding otherwise would endorse “the
regulatory equivalent of taxing non-adherents to support the
faith fu l. ” Br ief for Church-St ate Scholars as Ami c i
Curiae 3.
2
The expansive religious exemption at issue here imposes
signifcant burdens on women employees. Between 70,500
and 126,400 women of childbearing age, the Government esti-
mates, will experience the disappearance of the contracep-

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Ginsburg, J., dissenting
tive coverage formerly available to them, 83 Fed. Reg.
57578
–57580; indeed, the numbers may be even higher.
18
Lacking any alternative insurance coverage mechanism, see
supra, at 716, the exemption leaves women two options, nei-
ther satisfactory.
The frst option—the one suggested by the Government in
its most recent rulemaking, 82 Fed. Reg. 47803—is for
women to seek contraceptive care from existing government-
funded programs. Such programs, serving primarily low-
income individuals, are not designed to handle an infux of
tens of thousands of previously insured women.
19
Moreover,
as the Government has acknowledged, requiring women “to
take steps to learn about, and to sign up for, a new health
beneft” imposes “additional barriers,” “mak[ing] that cover-
age accessible to fewer women.” 78 Fed. Reg. 39888. Fi-
nally, obtaining care from a government-funded program
instead of one's regular care provider creates a continuity-of-
18
The Government notes that 2.9 million people were covered by the
209 plans that previously utilized the self-certifcation accommodation. 83
Fed. Reg. 57577. One hundred nine of those plans covering 727,000 peo-
ple, the Government estimates, will use the religious exemption, while 100
plans covering more than 2.1 million people will continue to use the
self-certifcation accommodation. Id., at 57578. If more plans, or plans
covering more people, use the new exemption, more women than the Gov-
ernment estimates will be affected.
19
Title X “is the only federal grant program dedicated solely to provid-
ing individuals with comprehensive family planning and related preventive
health services.” HHS, About Title X Grants, www.hhs.gov/opa /title-
x-family-planning/about-title-x-grants/ index.html. A recent rule makes
women who lose contraceptive coverage due to the religious exemption
eligible for Title X services. See 84 Fed. Reg. 7734 (2019). Expanding
eligibility, however, “does nothing to ensure Title X providers actually
have capacity to meet the expanded client population.” Brief for National
Women's Law Center et al. as Amici Curiae 22. Moreover, that same
rule forced 1,041 health providers, serving more than 41% of Title X pa-
tients, out of the Title X provider network due to their affliation with
abortion providers. 84 Fed. Reg. 7714; Brief for Planned Parenthood Fed-
eration of America et al. as Amici Curiae 18–19.

726 LITTLE
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Ginsburg, J., dissenting
care problem, “forc[ing those] who lose coverage away from
t
r usted prov iders who know their medica l h istor ies. ”
NWLC Brief 18.
The second option for women losing insurance coverage
for contraceptives is to pay for contraceptive counseling and
devices out of their own pockets. Notably, however, “the
most effective contraception is also the most expensive.”
ACOG Brief 14–15. “[T]he cost of an IUD [intrauterine de-
vice],” for example, “is nearly equivalent to a month's full-
time pay for workers earning the minimum wage.” Hobby
Lobby, 573 U. S., at 762 (Ginsburg, J., dissenting). Faced
with high out-of-pocket costs, many women will forgo contra-
ception, Brief for 186 Members of Congress 11, or resort to
less effective contraceptive methods, 930 F. 3d, at 563.
As the foregoing indicates, the religious exemption “rein-
troduce[s] the very health inequities and barriers to care that
Congress intended to eliminate when it enacted the women's
preventive services provision of the ACA.” NWLC Brief 5.
“No tradition, and no prior decision under RFRA, allows a
religion-based exemption when [it] would be harmful to oth-
ers—here, the very persons the contraceptive coverage re-
quirement was designed to protect.” Hobby Lobby, 573
U. S., at 764 (Ginsburg, J., dissenting).
20
I would therefore
hold the religious exemption neither required nor permitted
by RFRA.
21
B
Pennsylvania and New Jersey advance an additional argu-
ment: The exemption is not authorized by RFRA, they main-
20
Remarkably, Justice Alito maintains that stripping women of insur-
ance coverage for contraceptive services imposes no burden. See ante, at
703–704 (concurring opinion). He reaches this conclusion because, in his
view, federal law does not require the contraceptive coverage denied to
women under the exemption. Ante, at 703. Congress, however, called
upon HRSA to specify contraceptive and other preventive services for
women in order to ensure equality in women employees' access to healthc-
are, thus safeguarding their health and well-being. See supra, at 712–714.
21
As above stated, the Government does not defend the moral exemp-
tion under RFRA. See supra, at 722.

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tain, because the self-certifcation accommodation it replaced
was
suffcient to alleviate any substantial burden on religious
exercise. Brief for Respondents 36–42. That accommoda-
tion, I agree, further indicates the religious exemption's faws.
1
For years, religious organizations have challenged the self-
certifcation accommodation as insuffciently protective of
their religious rights. See, e. g., Zubik, 578 U. S., at 406–
407. While I do not doubt the sincerity of these organiza-
tions' opposition to that accommodation, Hobby Lobby, 573
U. S., at 758–759 (Ginsburg, J., dissenting), I agree with
Pennsylvania and New Jersey that the accommodation does
not substantially burden objectors' religious exercise.
As Senator Hatch observed, “[RFRA] does not require the
Government to justify every action that has some effect on
religious exercise.” 139 Cong. Rec. 26180 (1993). Bowen
v. Roy, 476 U. S. 693 (1986), is instructive in this regard.
There, a Native American father asserted a sincere religious
belief that his daughter's spirit would be harmed by the Gov-
ernment's use of her social security number. Id., at 697.
The Court, while casting no doubt on the sincerity of this
religious belief, explained:
“Never to our knowledge has the Court interpreted the
First Amendment to require the Government itself to
behave in ways that the individual believes will further
his or her spiritual development or that of his or her
family. The Free Exercise Clause simply cannot be un-
derstood to require the Government to conduct its own
internal affairs in ways that comport with the religious
beliefs of particular citizens.” Id., at 699.
22
22
Justice Alito disputes the relevance of Roy, asserting that the reli-
gious adherent in that case faced no penalty for noncompliance with the legal
requirement under consideration. See ante, at 692–693, n. 5. As Justice
Alito acknowledges, however, the critical inquiry has two parts. See ante,
at 692–693. It is not enough to ask whether noncompliance entails “sub-
stantial adverse practical consequences.” Ante, at 692. One must also ask

728 LITTLE
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Roy signals a critical distinction in the Court's religious
exercise
jurisprudence: A religious adherent may be entitled
to religious accommodation with regard to her own conduct,
but she is not entitled to “ `insist that . . . others must con-
form their conduct to [her] own religious necessities.' ”
Caldor, 472 U. S., at 710 (quoting Otten v. Baltimore & Ohio
R. Co., 205 F. 2d 58, 61 (CA2 1953) (Hand, J.); emphasis
added).
23
Counsel for the Little Sisters acknowledged as
much when he conceded that religious “employers could [not]
object at all” to a “government obligation” to provide contra-
ceptive coverage “imposed directly on the insurers.” Tr. of
Oral Arg. 41.
24
But that is precisely what the self-certifcation accommo-
dation does. As the Court recognized in Hobby Lobby:
“When a group-health-insurance issuer receives notice that
[an employer opposes coverage for some or all contraceptive
services for religious reasons], the issuer must then exclude
[that] coverage from the employer's plan and provide sepa-
rate payments for contraceptive services for plan partici-
pants.” 573 U. S., at 698–699; see also id., at 738 (Kennedy,
J., concurring) (“The accommodation works by requiring in-
surance companies to cover . . . contraceptive coverage for
female employees who wish it.” (emphasis added)). Under
the self-certifcation accommodation, then, the objecting em-
ployer is absolved of any obligation to provide the contracep-
whether compliance substantially burdens religious exercise. Like Roy,
my dissent homes in on the latter question.
23
Even if RFRA sweeps more broadly than the Court's pre-Smith juris-
prudence in some respects, see Hobby Lobby, 573 U. S., at 695, n. 3; but
see id., at 749–750 (Ginsburg, J., dissenting), there is no cause to believe
that Congress jettisoned this fundamental distinction.
24
Justice Alito ignores the distinction between (1) a request for an
accommodation with regard to one's own conduct, and (2) an attempt to
require others to conform their conduct to one's own religious beliefs.
Th is disti nc ti on is fat a l to Justice Alito's argument that the self-
certifcation accommodation violates RFRA. See ante, at 692–696.

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tive coverage to which it objects; that obligation is trans-
ferred
to the insurer. This arrangement “furthers the Gov-
ernment's interest [in women's health] but does not impinge
on the [employer's] religious beliefs.” Ibid.; see supra, at
727–729.
2
The Little Sisters, adopting the arguments made by reli-
gious organizations in Zubik, resist this conclusion in two
ways. First, they urge that contraceptive coverage pro-
vided by an insurer under the self-certifcation accommoda-
tion forms “part of the same plan as the coverage provided
by the employer.” Brief for Little Sisters 12 (internal quo-
tation marks omitted). See also Tr. of Oral Arg. 29 (Little
Sisters object “to having their plan hijacked”); ante, at 694
(Alito, J., concurring) (Little Sisters object to “maintain[ing]
and pay[ing] for a plan under which coverage for contracep-
tives would be provided”). This contention is contradicted
by the plai n ter ms of the reg u lati on est abl ish i ng that
accommodation: To repeat, an insurance issuer “must . . .
[e]xpressly exclude contraceptive coverage from the group
health insurance coverage provided in connection with the
group health plan.” 45 CFR § 147.131(c)(2)(i)(A) (2013) (em-
phasis added); see supra, at 715.
25
Second, the Little Sisters assert that “tak[ing] affrmative
steps to execute paperwork . . . necessary for the provision
of `seamless' contraceptive coverage to their employees” im-
plicates them in providing contraceptive services to women
in violation of their religious beliefs. Little Sisters Reply
Brief 7. At the same time, however, they have been ada-
25
Relig i ous organi zati ons have observed that, under the self-
certifcation accommodation, insurers need not, and do not, provide con-
traceptive coverage under a separate policy number. Supp. Brief for
Petitioners in Zubik v. Burwell, O. T. 2015, No. 14–1418, p. 1. This objec-
tion does not relate to a religious employer's own conduct; instead, it
concerns the insurer's conduct. See supra, at 727–729.

730 LITTLE
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mant that they do not oppose merely “register[ing] their ob-
jec
tions” to the contraceptive-coverage requirement. Ibid.
See also Tr. of Oral Arg. 29, 42–43 (Little Sisters have “no
objection to objecting ”); ante, at 694 (Alito, J., concurring)
(Little Sisters' “concern was not with notifying the Govern-
ment that they wished to be exempted from complying with
the mandate per se”). These statements, taken together, re-
veal that the Little Sisters do not object to what the self-
certifcation accommodation asks of them, namely, attesting
to their religious objection to contraception. See supra, at
715–716. They object, instead, to the particular use in-
surance issuers make of that attestation. See supra, at
727–729.
26
But that use originated from the ACA and its
once-implementing regulation, not from religious employers'
self-certifcation or alternative notice.
***
The blanket exemption for religious and moral objectors
to contraception formulated by the IRS, EBSA, and CMS is
inconsistent with the text of, and Congress' intent for, both
the ACA and RFRA. Neither law authorizes it.
27
The
original administrative regulation accommodating religious
objections to contraception appropriately implemented the
ACA and RFRA consistent with Congress' staunch determi-
nation to afford women employees equal access to preventive
services, thereby advancing public health and welfare and
26
Justice Alito asserts that the Little Sisters' “situation [is] the same
as that of the conscientious objector in Thomas [v. Review Bd. of Ind.
Employment Security Div., 450 U. S. 707, 715 (1981)].” Ante, at 695. I
disagree. In Thomas, a Jehovah's Witness objected to “work[ing] on
weapons,” 450 U. S., at 710, which is what his employer required of him.
As above stated, however, the Little Sisters have no objection to object-
ing, the only other action the self-certifcation accommodation requires
of them.
27
Given this conclusion, I need not address whether the exemption is
procedurally invalid. See ante, at 683–686 (opinion of the Court).

Cite
as: 591 U. S. 657 (2020)
731
Ginsburg, J., dissenting
women's well-being. I would therefore affrm the judgment
of
the Court of Appeals.
28
28
Although the Court does not reach the issue, the District Court did
not abuse its discretion in issuing a nationwide injunction. The Adminis-
trative Procedure Act contemplates nationwide relief from invalid agency
action. See 5 U. S. C. § 706(2) (empowering courts to “hold unlawful and
set aside agency action”). Moreover, the nationwide reach of the injunc-
tion “was `necessary to provide complete relief to the plaintiffs.' ” Trump
v. Hawaii, 585 U. S. 667, 751, n. 13 (2018) (Sotomayor, J., dissenting) (quot-
ing Madsen v. Women's Health Center, Inc., 512 U. S. 753, 765 (1994)).
Harm to Pennsylvania and New Jersey, the Court of Appeals explained,
occurs because women who lose benefts under the exemption “will turn to
state-funded services for their contraceptive needs and for the unintended
pregnancies that may result from the loss of coverage.” 930 F. 3d, at 562.
This harm is not bounded by state lines. The Court of Appeals noted,
for example, that some 800,000 residents of Pennsylvania and New Jersey
work—and thus receive their health insurance—out of State. Id., at 576.
Similarly, many students who attend colleges and universities in Pennsyl-
vania and New Jersey receive their health insurance from their parents'
out-of-state health plans. Ibid.

732 OCTOBER
TERM, 2019
Syllabus
OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY
-BERRU
certiorari to the united states court of appeals for
the ninth circuit
No. 19–267. Argued May 11, 2020—Decided July 8, 2020*
The First Amendment protects the right of religious institutions “to de-
cide for themselves, free from state interference, matters of church gov-
ernment as well as those of faith and doctrine.” Kedroff v. Saint Nich-
olas Cathedral of Russian Orthodox Church in North America, 344
U. S. 94, 116. Applying this principle, this Court held in Hosanna-
Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S.
171, that the First Amendment barred a court from entertaining an
employment discrimination claim brought by an elementary school
teacher, Cheryl Perich, against the religious school where she taught.
Adopting the so-called “ministerial exception” to laws governing the
employment relationship between a religious institution and certain key
employees, the Court found relevant Perich's title as a “Minister of Reli-
gion, Commissioned,” her educational training, and her responsibility to
teach religion and participate with students in religious activities. Id.,
at 190–191.
In these cases, two elementary school teachers at Roman Catholic
schools in the Archdiocese of Los Angeles had teaching responsibilities
similar to Perich's. Agnes Morrissey-Berru taught at Our Lady of Gua-
dalupe School (OLG), and Kristen Biel taught at St. James School.
Both were employed under nearly identical agreements that set out
the schools' mission to develop and promote a Catholic school faith com-
munity; imposed commitments regarding religious instruction, worship,
and personal modeling of the faith; and explained that teachers' per-
formance would be reviewed on those bases. Each was also required
to comply with her school's faculty handbook, which set out similar ex-
pectations. Each taught religion in the classroom, worshipped with her
students, prayed with her students, and had her performance measured
on religious bases.
Both teachers sued their schools after their employment was termi-
nated. Morrissey-Berru claimed that OLG had demoted her and had
failed to renew her contract in order to replace her with a younger
teacher in violation of the Age Discrimination in Employment Act of
*Together with No. 19–348, St. James School v. Biel, as Personal Repre-
sentative of the Estate of Biel, on certiorari to the same Court.

Cite
as: 591 U. S. 732 (2020)
733
Syllabus
1967. OLG invoked Hosanna-Tabor's “ministerial exception” and suc-
cessfu
lly moved for summary judgment, but the Ninth Circuit reversed,
holding that Morrissey-Berru did not fall within the exception because
she did not have the formal title of “minister,” had limited formal reli-
gious training, and did not hold herself out publicly as a religious leader.
Biel alleged that St. James discharged her because she had requested
a leave of absence to obtain breast cancer treatment. Like OLG,
St. James obtained summary judgment under the “ministerial excep-
tion.” But the Ninth Circuit reversed, reasoning that Biel lacked Per-
ich's credentials, religious training, and ministerial background.
Held: The First Amendment's Religion Clauses foreclose the adjudication
of Morrissey-Berru's and Biel's employment discrimination claims.
Pp. 746–762.
(a) The independence of religious institutions in matters of “faith and
doctrine” is closely linked to independence in what the Court has termed
“ `matters of church government.' ” Hosanna-Tabor, 565 U. S., at 186.
For this reason, courts are bound to stay out of employment disputes
involving those holding certain important positions with churches and
other religious institutions. Pp. 746–747.
(b) When the “ministerial exception” reached this Court in Hosanna-
Tabor, the Court looked to precedent and the “background” against
which “the First Amendment was adopted,” 565 U. S., at 183, and unani-
mously recog ni zed that the Relig i on Clauses foreclose cer t ai n
employment discrimination claims brought against religious organiza-
tions, id., at 188. Pp. 747–749.
(c) In Hosanna-Tabor, the Court applied the “ministerial exception”
but declined “to adopt a rigid formula for deciding when an employee
qualifes as a minister.” 565 U. S., at 190. Instead, the Court identifed
four relevant circumstances of Perich's employment at an Evangelical
Lutheran school. First, Perich's church had given her the title of “min-
ister, with a role distinct from that of most of its members.” Id., at
191. Second, her position “refected a signifcant degree of religious
training followed by a formal process of commissioning.” Ibid. Third,
she “held herself out as a minister of the Church” and claimed certain
tax benefts. Id., at 191–192. Fourth, her “job duties refected a role
in conveying the Church's message and carrying out its mission.” Id.,
at 192. Pp. 749–751.
(d) A variety of factors may be important in determining whether a
particular position falls within the ministerial exception. The circum-
stances that informed the Court's decision in Hosanna-Tabor were rele-
vant because of their relationship to Perich's “role in conveying the
Church's message and carrying out its mission.” 565 U. S., at 192. But

734 OUR
LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Syllabus
the recognition of the signifcance of those factors in Perich's case did
not
mean that they must be met in all other cases. What matters is
what an employee does. Implicit in the Hosanna-Tabor decision was a
recognition that educating young people in their faith, inculcating its
teachings, and training them to live their faith are responsibilities that
lie at the very core of a private religious school's mission. Pp. 751–756.
(e) Applying this understanding of the Religion Clauses here, it is
apparent that Morrissey-Berru and Biel qualify for the exception recog-
nized in Hosanna-Tabor. There is abundant record evidence that they
both performed vital religious duties, such as educating their students
in the Catholic faith and guiding their students to live their lives in
accordance with that faith. Their titles did not include the term “minis-
ter” and they had less formal religious training than Perich, but their
core responsibilities were essentially the same. And their schools ex-
pressly saw them as playing a vital role in carrying out the church's
mission. A religious institution's explanation of the role of its employ-
ees in the life of the religion in question is important. Pp. 756–757.
(f ) The Ninth Circuit mistakenly treated the circumstances the Court
found relevant in Hosanna-Tabor as a checklist of items to be assessed
and weighed against each other. That rigid test produced a distorted
analysis. First, it invested undue signifcance in the fact that Morrissey-
Berru and Biel did not have clerical titles. Second, it assigned too much
weight to the fact that Morrissey-Berru and Biel had less formal reli-
gious schooling that Perich. Third, the St. James panel inappropriately
diminished the signifcance of Biel's duties. Respondents would make
Hosanna-Tabor's governing test even more rigid. And they go further
astray in suggesting that an employee can never come within the
Hosanna-Tabor exception unless the employee is a “practicing ” member
of the religion with which the employer is associated. Deciding such
questions risks judicial entanglement in religious issues. Pp. 757–762.
No. 19–267, 769 Fed. Appx. 460; No. 19–348, 911 F. 3d 603, reversed and
remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh, JJ., joined.
Thomas, J., fled a concurring opinion, in which Gorsuch, J., joined, post,
p. 762. Sotomayor, J., fled a dissenting opinion, in which Ginsburg, J.,
joined, post, p. 766.
Eric C. Rassbach argued the cause for petitioners. With
him on the briefs were Daniel H. Blomberg, Diana M. Verm,
Adèle Auxier Keim, Margaret G. Graf, John J. Manier,

Cite
as: 591 U. S. 732 (2020)
735
Counsel
L inda M i ll e r Sa v i t t, Ste phan i e Kan t o r, and Jack S.
Sho
lkoff.
Morgan L. Ratner argued the cause for the United States
as amicus curiae urging reversal. With her on the brief
were Solicitor General Francisco, Assistant Attorney Gen-
eral Dreiband, Deputy Solicitor General Wall, Deputy As-
sistant Attorney General Maugeri, Michael R. Huston, Eric
W. Treene, Sharon Fast Gustafson, and Rachel N. Morrison.
Jeffrey L. Fisher argued the cause for respondents. With
him on the brief were Jennifer A. Lipski, Joseph M. Lovreto-
v i ch, Ca thr yn G. Fund, Brad l ey N. Garc i a, and Yaira
Dubin.†
†A brief of amici curiae urging reversal in No. 19–267 was fled for the
State of Alaska et al. by Kevin G. Clarkson, Attorney General of Alaska,
Dario Borghesan, Chief Assistant Attorney General, and Katherine De-
marest and Anna Jay, Assistant Attorneys General, and by the Attorneys
General for their respective jurisdictions as follows: Steve Marshall of
Alabama, Mark Brnovich of Arizona, Leslie Rutledge of Arkansas, Chris-
topher M. Carr of Georgia, Curtis T. Hill, Jr., of Indiana, Daniel Cameron
of Kentucky, Jeff Landry of Louisiana, Eric S. Schmitt of Missouri, Timo-
thy C. Fox of Montana, Douglas J. Peterson of Nebraska, Dave Yost of
Ohio, Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Herbert
H. Slatery III of Tennessee, Ken Paxton of Texas, and Sean D. Reyes
of Utah.
Briefs of amici curiae urging reversal in both cases were fled for the
American Center for Law and Justice by Jay Alan Sekulow, Stuart J.
Roth, Colby M. May, and Laura B. Hernandez; for the American Jewish
Committee et al. by Michael H. McGinley and Steven B. Feirson; for the
Association of Classical Christian Schools et al. by Misha Tseytlin, Kristen
K. Waggoner, David A. Cortman, John J. Bursch, Gregory Baylor, Rory
T. Gray, and Brett B. Harvey; for the Billy Graham Evangelistic Associa-
tion et al. by Frederick W. Claybrook, Jr., Steven W. Fitschen, James A.
Davids, and David A. Bruce; for the Christian and Missionary Alliance
et al. by Stuart J. Lark; for the Christian Legal Society et al. by Reed N.
Smith, Kimberlee Wood Colby, and Thomas C. Berg; for Church of God in
Christ, Inc., et al., by Thomas H. Dupree, Jr., and Nathan J. Diament; for
the Church of Jesus Christ of Latter-day Saints et al. by Alexander
Dushku and R. Shawn Gunnarson; for COLPA et al. by Nathan Lewin,
Alyza D. Lewin, and Dennis Rapps; for Columbia International Univer-
sity et al. by Christian M. Poland; for the Council for Christian Colleges

736 OUR
LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
Justice Alito delivered the opinion of the Court.
These
cases require us to decide whether the First
Amendment permits courts to intervene in employment dis-
putes involving teachers at religious schools who are en-
trusted with the responsibility of instructing their students
et al. by Gene C. Schaerr, Erik S. Jaffe, Hannah C. Smith, and Kathryn
E. Tarbert; for the Ethics and Public Policy Center by Matthew T. Nelson
and Conor B. Dugan; for the Ethics and Religious Liberty Commission of
the Southern Baptist Convention et al. by Sarah M. Harris; for the First
Liberty Institute by Kelly J. Shackel ford, Hiram S. Sasser III, Michael
Berry, and Stephanie N. Taub; for the Foundation for Moral Law by John
A. Eidsmoe; for Franciscan University of Steubenville by Linda T. Cob-
erly; for the General Conference of Seventh-day Adventists et al. by Eric
D. McArthur; for the Independent Women's Law Center by Donald M.
Falk and Roger V. Abbott; for Inner Life Fund by James L. Hirsen and
Deborah J. Dewart; for InterVarsity Christian Fellowship/USA et al. by
Steffen N. Johnson, Susan Creighton, and Michael McConnell; for Judicial
Watch, Inc., by Meredith L. Di Liberto and James F. Peterson; for the
National Catholic Educational Association by James A. Sonne; for the Na-
tional Right to Work Legal Defense Foundation, Inc., by Bruce N. Cam-
eron and Frank D. Garrison; for Partnership Schools by John P. Elwood,
Dirk C. Phillips, and Sally L. Pei; for Stephen Wise Temple et al. by Paul
D. Clement, Erin E. Murphy, Jeremy B. Rosen, Felix Shafr, Joshua C.
McDaniel, Stephen E. Kvavit, and Aaron H. Aizenberg; for the United
States Conference of Catholic Bishops by Aaron M. Streett, Anthony R.
Picarello, Jr., Jeffrey Hunter Moon, and Michael F. Moses; for John D.
Inazu by Zachary G. Parks; for Douglas Laycock et al. by Victoria Dorf-
man, Anthony J. Dick, and Todd R. Geremia; for Sen. Mike Lee et al. by
Jesse Panuccio; and for Asma T. Uddin by Daniel P. Kearney, Jr.
Heather L. Weaver, Daniel Mach, David D. Cole, Louise Melling,
Joshua A. Block, Melissa Goodman, Richard B. Katskee, Kenneth D.
Upton, Jr., and Steven M. Freeman fled a brief for the American Civil
Liberties Union et al. as amici curiae urging reversal in No. 19–267 and
affrmance in No. 19–348.
Briefs of amici curiae urging affrmance in both cases were fled for the
Commonwealth of Virginia et al. by Toby J. Heytens, Solicitor General of Vir-
ginia, Mark R. Herring, Attorney General, Martine E. Cicconi and Michelle
S. Kallen, Deputy Solicitors General, Jessica Merry Samuels, Assistant So-
licitor General, and Keonna Carter Austin and Samuel T. Towell, Deputy
Attorneys General, and by the Attorneys General for their respective juris-
dictions as follows: Xavier Becerra of California, Phil Weiser of Colorado,
William Tong of Connecticut, Kathleen Jennings of Delaware, Karl A. Ra-

Cite
as: 591 U. S. 732 (2020)
737
Opinion of the Court
in the faith. The First Amendment protects the right of
rel
igious institutions “to decide for themselves, free from
state interference, matters of church government as well as
those of faith and doctrine.” Kedroff v. Saint Nicholas Ca-
thedral of Russian Orthodox Church in North America, 344
U. S. 94, 116 (1952). Applying this principle, we held in
Hosanna-Tabor Evangelical Lutheran Church and School v.
EEOC, 565 U. S. 171 (2012), that the First Amendment
barred a court from entertaining an employment discrimina-
tion claim brought by an elementary school teacher, Cheryl
Perich, against the religious school where she taught. Our
decision built on a line of lower court cases adopting what
was dubbed the “ministerial exception” to laws governing
the employment relationship between a religious institution
and certain key employees. We did not announce “a rigid
formula” for determining whether an employee falls within
this exception, but we identifed circumstances that we found
relevant in that case, including Perich's title as a “Minister of
Religion, Commissioned,” her educational training, and her
responsibility to teach religion and participate with students
in religious activities. Id., at 190–191.
cine of the District of Columbia, Kwame Raoul of Illinois, Maura Healey
of Massachusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota,
Aaron D. Ford of Nevada, Gurbir Singh Grewal of New Jersey, Letitia
James of New York, Ellen F. Rosenblum of Oregon, Peter F. Neronha of
Rhode Island, Thomas J. Donovan, Jr., of Vermont, and Robert W. Fergu-
son of Washington; for the Center for Inquiry, Inc., et al., by Edward
Tabash and Monica L. Miller; for Child USA et al. by Leslie C. Griffn;
for Clergy and Laity United for Economic Justice et al. by Ryan H. Wu;
for the Freedom From Religion Foundation et al. by Patrick Elliott; for
the National Employment Lawyers Association et al. by Michael L. Fore-
man; and for the National Women's Law Center et al. by Kevin K. Rus-
sell, Fatima Goss Graves, Emily Martin, Sunu P. Chandy, Vanita Gupta,
and Michael Zubrensky.
Briefs of amici curiae in both cases were fled for the Center for Consti-
tutional Jurisprudence by John C. Eastman and Anthony T. Caso; for The
Rutherford Institute by Nathan A. Adams IV and John W. Whitehead;
and for Torah Umesorah by Igor V. Timofeyev, Michael S. Wise, and Jo-
anne Joseph.

738 OUR
LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
In the cases now before us, we consider employment dis-
cr
imination claims brought by two elementary school teach-
ers at Catholic schools whose teaching responsibilities are
similar to Perich's. Although these teachers were not given
the title of “minister” and have less religious training than
Perich, we hold that their cases fall within the same rule
that dictated our decision in Hosanna-Tabor. The religious
education and formation of students is the very reason for
the existence of most private religious schools, and therefore
the selection and supervision of the teachers upon whom the
schools rely to do this work lie at the core of their mission.
Judicial review of the way in which religious schools dis-
charge those responsibilities would undermine the independ-
ence of religious institutions in a way that the First Amend-
ment does not tolerate.
I
A
1
The frst of the two cases we now decide involves Agnes
Morrissey-Berru, who was employed at Our Lady of Guada-
lupe School (OLG), a Roman Catholic primary school in the
Archdiocese of Los Angeles. Excerpts of Record (ER) 58
in No. 17–56624 (CA9) (OLG).
1
For many years, Morrissey-
1
A major theme of the dissent is that we do not heed the rule that, in
deciding whether summary judgment is proper, a court must view the
facts in the light most favorable to the party against whom summary judg-
ment is sought. See post, at 766, 772, 774–775, 779 (opinion of Sotomayor,
J.). But the dissent, which approves of the Ninth Circuit's reasoning, seems
to forget that the Ninth Circuit in effect granted summary judgment in
favor of the teachers on the issue of the applicability of the so-called minis-
terial exception. It did not remand for a trial on that issue but instead
held that the exception did not apply. 769 Fed. Appx. 460, 460–461 (2019);
911 F. 3d 603, 605, 611, n. 6 (2018). Therefore, if any material facts were
genuinely in dispute, the relevant parts of the record would have to be

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as: 591 U. S. 732 (2020)
739
Opinion of the Court
Berru was employed at OLG as a lay ffth or sixth grade
teacher
. Like most elementary school teachers, she taught
all subjects, and since OLG is a Catholic school, the curricu-
lum included religion. App. 23, 75. As a result, she was
her students' religion teacher.
Morrissey-Berru earned a B. A. in English Language Arts,
with a minor in secondary education, and she holds a Califor-
nia teaching credential. Id., at 21–22. While on the faculty
at OLG, she took religious education courses at the school's
request, ER 41–ER 42, ER 44–ER 45, ER 276, and was ex-
pected to attend faculty prayer services, App. to Pet. for
Cert. in No. 19–267, p. 87a.
2
Each year, Morrissey-Berru and OLG entered into an em-
ployment agreement, App. 21,
3
that set out the school's “mis-
sion” and Morrissey-Berru's duties. See, e. g., id., at 154–
164.
4
The agreement stated that the school's mission was
viewed in the light most favorable to the schools. The dissent, however,
does exactly the opposite.
In any event, the dissent's comments about summary judgment are so
much smoke. It does not identify any disputed fact that is essential to
our holding, and, although there are differences of opinion on certain facts,
neither party takes the position that any material fact is genuinely in
dispute.
2
After bringing suit, Morrissey-Berru fled a declaration stating that
she is “not currently a practicing Catholic.” ER 248. It is unclear what
Morrissey-Berru means by “practicing.” There is, however, no hint in the
record that Morrissey-Berru considered herself a non-practicing Catholic
during her employment at OLG. See in fra, at 740–741 (describing reli-
gious observation).
3
This appears to have been a standard contract used within the Arch-
diocese of Los Angeles. See App. 154; cf. id., at 230.
4
It is not entirely clear from the record whether teachers at OLG must
be Catholic. Id., at 113 (“[Q.] Is it a requirement that a teacher be Catho-
lic in order to teach at OLG School? Yes or no? [A.] Yes”); but see ibid.
(“Exceptions can be made”); id., at 154 (“If you are Roman Catholic[,] you
must be in good standing with the Church” (emphasis added)). But it is
clearly preferred. Id., at 110.

740 OUR
LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
“to develop and promote a Catholic School Faith Commu-
nity
,” id., at 154, and it informed Morrissey-Berru that “[a]ll
[her] duties and responsibilities as a Teache[r were to]
be performed within this overriding commitment,” ibid.
The agreement explained that the school's hiring and re-
tention decisions would be guided by its Catholic mission,
and the agreement made clear that teachers were expected
to “model and promote” Catholic “faith and morals.” Id., at
155. Under the agreement, Morrissey-Berru was required
to participate in “[s]chool liturgical activities, as requested,”
ibid., and the agreement specifed that she could be termi-
nated “for `cause' ” for failing to carry out these duties or for
“conduct that brings discredit upon the School or the Roman
Catholic Church,” id., at 155–157. The agreement required
compliance with the faculty handbook, which sets out similar
expectations. Id., at 156; App. to Pet. for Cert. in No. 19–
267, at 52a–55a. The pastor of the parish, a Catholic priest,
had to approve Morrissey-Berru's hiring each year. Id., at
14a; see also App. 164.
Like all teachers in the Archdiocese of Los Angeles,
Morr issey-Berr u was “considered a catech ist, ” i. e., “a
teacher of religio[n].” App. to Pet. for Cert. in No. 19–267,
at 56a, 60a. Catechists are “responsible for the faith forma-
tion of the students in their charge each day.” Id., at 56a.
Morrissey-Berru provided religious instruction every day
using a textbook designed for use in teaching religion to
young Catholic students. Id., at 45a–51a, 90a–92a; see App.
79–80. Under the prescribed curriculum, she was expected
to teach students, among other things, “to learn and express
belief that Jesus is the son of God and the Word made fesh”;
to “identify the ways” the church “carries on the mission of
Jesus”; to “locate, read and understand stories from the
Bible”; to “know the names, meanings, signs and symbols of
each of the seven sacraments”; and to be able to “explain the
communion of saints.” App. to Pet. for Cert. in No. 19–267,

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as: 591 U. S. 732 (2020)
741
Opinion of the Court
at 91a–92a. She tested her students on that curriculum in
a
yearly exam. Id., at 87a. She also directed and produced
an annual passion play. Id., at 26a.
Morrissey-Berru prepared her students for participation
in the Mass and for communion and confession. Id., at 68a,
81a, 88a–89a. She also occasionally selected and prepared
students to read at Mass. Id., at 83a, 89a. And she was
expected to take her students to Mass once a week and on
certain feast days (such as the Feast Day of St. Juan Diego,
All Saints Day, and the Feast of Our Lady), and to take them
to confession and to pray the Stations of the Cross. Id., at
68a–69a, 83a, 88a. Each year, she brought them to the Cath-
olic Cathedral in Los Angeles, where they participated
as altar servers. Id., at 95a–96a. This visit, she explain-
ed, was “an important experience” because “[i]t is a big
honor” for children to “serve the altar” at the cathedral.
Id., at 96a.
Morrissey-Berru also prayed with her students. Her
class began or ended every day with a Hail Mary. Id., at
87a. She led the students in prayer at other times, such as
when a family member was ill. Id., at 21a, 81a, 86a–87a.
And she taught them to recite the Apostle's Creed and the
Nicene Creed, as well as prayers for specifc purposes, such
as in connection with the sacrament of confession. Id., at
20a–21a, 92a.
The school reviewed Morrissey-Berru's performance under
relig ious standards. The “ `Classroom Observation Re-
port' ” evaluated whether Catholic values were “infused
through all subject areas” and whether there were religious
signs and displays in the classroom. Id., at 94a, 95a; App.
59. Morrissey-Berru testifed that she tried to instruct her
students “in a manner consistent with the teachings of the
Church,” App. to Pet. for Cert. in No. 19–267, at 96a, and she
said that she was “committed to teaching children Catholic
values” and providing a “faith-based education,” id., at 82a.

742 OUR
LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
And the school principal confrmed that Morrissey-Berru
was
expected to do these things.
5
2
In 2014, OLG asked Morrissey-Berru to move from a full-
time to a part-time position, and the next year, the school
declined to renew her contract. She fled a claim with the
Equal Employment Opportunity Commission (EEOC), re-
ceived a right-to-sue letter, App. 169, and then fled suit
under the Age Discrimination in Employment Act of 1967,
81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., claiming
that the school had demoted her and had failed to renew her
contract so that it could replace her with a younger teacher,
App. 168–169. The school maintains that it based its deci-
sions on classroom performance—specifcally, Morrissey-
Berru's diffculty in administering a new reading and writing
program, which had been introduced by the school's new
principal as part of an effort to maintain accreditation and
improve the school's academic program. App. to Pet. for
Cert. in No. 19–267, at 66a–67a, 70a, 73a.
Invoking the “ministerial exception” that we recognized in
Hosanna-Tabor, OLG successfully moved for summary judg-
ment, but the Ninth Circuit reversed in a brief opinion. 769
Fed. Appx. 460, 461 (2019). The court acknowledged that
Morrissey-Berru had “signifcant religious responsibilities”
but reasoned that “an employee's duties alone are not dispos-
itive under Hosanna-Tabor's framework.” Ibid. Unlike
Perich, the court noted, Morrissey-Berru did not have the
formal title of “minister,” had limited formal religious train-
ing, and “did not hold herself out to the public as a religious
leader or minister.” Ibid. In the court's view, these “fac-
tors” outweighed the fact that she was invested with signif-
cant religious responsibilities. Ibid. The court therefore
held that Morrissey-Berru did not fall within the “ministerial
5
Record in No. 2:16–CV–09353 (CD Cal.), Doc. 33, ¶9.

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exception.” OLG fled a petition for certiorari, and we
granted
review.
B
1
The second case concerns the late Kristen Biel, who
worked for about a year and a half as a lay teacher at
St. James School, another Catholic primary school in Los
Angeles. For part of one academic year, Biel served as a
long-term substitute teacher for a frst grade class, and for
one full year she was a full-time ffth grade teacher. App.
336–337. Like Morrissey-Berru, she taught all subjects, in-
cluding religion. Id., at 288; ER 588 in No. 17–55180 (CA9)
(St. James).
6
Biel had a B. A. in liberal studies and a teaching credential.
App. 244. During her time at St. James, she attended a reli-
gious conference that imparted “[d]ifferent techniques on
teaching and incorporating God” into the classroom. Id., at
260–262. Biel was Catholic.
7
Biel's employment agreement was in pertinent part nearly
identical to Morrissey-Berru's. Compare id., at 154–164,
with id., at 320–329. The agreement set out the same reli-
gious mission; required teachers to serve that mission; im-
posed commitments regarding religious instruction, worship,
and personal modeling of the faith; and explained that teach-
ers' performance would be reviewed on those bases.
Biel's agreement a lso required compl iance w ith the
St. James faculty handbook, which resembles the OLG hand-
book. Id., at 322. Compare ER 641–ER 651 (OLG) with
ER 565–ER 597 (St. James). The St. James handbook de-
fnes “religious development” as the school's frst goal and
6
Biel died during the pendency of this suit, which has subsequently been
litigated by her husband as representative of her estate. Record in
No. 17–55180 (CA9), Docs. 112, 113.
7
The school principal stated that she prefers that teachers at the school
be Catholic. ER 32 (St. James).

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provides that teachers must “mode[l] the faith life,” “exem-
pl
if[y] the teachings of Jesus Christ,” “[i]ntegrat[e] Catholic
thought and principles into secular subjects,” and “[p]re-
par[e] students to receive the sacraments.” ER 570–ER
572. The school principal confrmed these expectations.
8
Like Morrissey-Berru, Biel instructed her students in the
tenets of Catholicism. She was required to teach religion
for 200 minutes each week, App. 257–258, and administered
a test on religion every week, id., at 256–257. She used a
religion textbook selected by the school's principal, a Catho-
lic nun. Id., at 255; ER 37 (St. James). The religious cur-
riculum covered “the norms and doctrines of the Catholic
Faith, including . . . the sacraments of the Catholic Church,
social teachings according to the Catholic Church, morality,
the history of Catholic saints, [and] Catholic prayers.” App.
to Pet. for Cert. in No. 19–348, p. 83a.
Biel worshipped with her students. At St. James, teach-
ers are responsible for “prepar[ing] their students to be ac-
tive participants at Mass, with particular emphasis on Mass
responses,” ER 587, and Biel taught her students about
“Catholic practices like the Eucharist and confession,” ER
226–ER 227. At monthly Masses, she prayed with her stu-
dents. App. to Pet. for Cert. in No. 19–348, at 82a, 94a–96a.
Her students participated in the liturgy on some occasions
by presenting the gifts (bringing bread and wine to the
priest). Ibid.
Teachers at St. James were “required to pray with their
students every day,” id., at 80a–81a, 110a, and Biel observed
this requirement by opening and closing each school day with
prayer, including the Lord's Prayer or a Hail Mary, id., at
81a–82a, 93a, 110a.
As at OLG, teachers at St. James are evaluated on their
fulfllment of the school's religious mission. Id., at 83a–84a.
8
Record in No. 2:15–CV–04248 (CD Cal.), Doc. 67–1, ¶¶4–7.

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St. James used the same classroom observation standards as
OLG
and thus examined whether teachers “infus[ed]” Catho-
lic values in all their teaching and included religious displays
in their classrooms. Id., at 83a–84a, 92a. The school's prin-
cipal, a Catholic nun, evaluated Biel on these measures. Id.,
at 106a.
2
St. James declined to renew Biel's contract after one full
year at the school. She fled charges with the EEOC, and
after receiving a right-to-sue letter, brought this suit, alleg-
ing that she was discharged because she had requested a
leave of absence to obtain treatment for breast cancer. App.
337–338. The school maintains that the decision was based
on poor performance—namely, a failure to observe the
planned curriculum and keep an orderly classroom. See id.,
at 303; App. to Pet. for Cert. in No. 19–348, at 85a–89a, 114a–
115a, 120a–121a.
Like OLG, St. James obtained summary judgment under
the ministerial exception, id., at 74a, but a divided panel of
the Ninth Circuit reversed, reasoning that Biel lacked Per-
ich's “credentials, training, [and] ministerial background,”
911 F. 3d 603, 608 (2018).
Judge D. Michael Fisher, sitting by designation, dissented.
Considering the totality of the circumstances, he would have
held that the ministerial exception applied “because of the
substance refected in [Biel's] title and the important reli-
gious functions she performed” as a “stewar[d] of the Catho-
lic faith to the children in her class.” Id., at 621, 622.
An unsuccessful petition for rehearing en banc ensued.
Judge Ryan D. Nelson, joined by eight other judges, dis-
sented. 926 F. 3d 1238, 1239 (2019). Judge Nelson faulted
the panel majority for “embrac[ing] the narrowest construc-
tion” of the ministerial exception, departing from “the con-
sensus of our sister circuits that the employee's ministerial
function should be the key focus,” and demanding nothing

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less than a “carbon copy” of the specifc facts in Hosanna-
T
abor. 926 F. 3d, at 1249 (dissenting opinion). We granted
review and consolidated the case with OLG's. 589 U. S. 1126
(2019).
II
A
The First Amendment provides that “Congress shall make
no law respecting an establishment of religion, or prohibiting
the free exercise thereof.” Among other things, the Reli-
gion Clauses protect the right of churches and other reli-
gious institutions to decide matters “ `of faith and doctrine' ”
without government intrusion. Hosanna-Tabor, 565 U. S.,
at 186 (quoting Kedroff, 344 U. S., at 116). State interfer-
ence in that sphere would obviously violate the free exercise
of religion, and any attempt by government to dictate or
even to infuence such matters would constitute one of the
central attributes of an establishment of religion. The First
Amendment outlaws such intrusion.
The independence of religious institutions in matters of
“faith and doctrine” is closely linked to independence in what
we have termed “ `matters of church government.' ” 565
U. S., at 186. This does not mean that religious institutions
enjoy a general immunity from secular laws, but it does pro-
tect their autonomy with respect to internal management
decisions that are essential to the institution's central mis-
sion. And a component of this autonomy is the selection of
the individuals who play certain key roles.
The “ministerial exception” was based on this insight.
Under this rule, courts are bound to stay out of employment
disputes involving those holding certain important positions
with churches and other religious institutions. The rule ap-
pears to have acquired the label “ministerial exception” be-
cause the individuals involved in pioneering cases were de-
scribed as “ministers.” See McClure v. Salvation Army,
460 F. 2d 553, 558–559 (CA5 1972); Rayburn v. General Con-
ference of Seventh-day Adventists, 772 F. 2d 1164, 1168 (CA4

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1985). Not all pre-Hosanna-Tabor decisions applying the
excepti
on involved “ministers” or even members of the
clergy. See, e. g., EEOC v. Southwestern Baptist Theologi-
cal Seminary, 651 F. 2d 277, 283–284 (CA5 1981); EEOC v.
Roman Catholic Diocese of Raleigh, N. C., 213 F. 3d 795,
800–801 (CA4 2000). But it is instructive to consider why
a church's independence on matters of “faith and doctrine”
requires the authority to select, supervise, and if necessary,
remove a minister without interference by secular authori-
ties. Without that power, a wayward minister's preaching,
teaching, and counseling could contradict the church's tenets
and lead the congregation away from the faith.
9
The minis-
terial exception was recognized to preserve a church's inde-
pendent authority in such matters.
B
When the so-called ministerial exception fnally reached
this Court in Hosanna-Tabor, we unanimously recognized
that the Religion Clauses foreclose certain employment dis-
crimination claims brought against religious organizations.
565 U. S., at 188. The constitutional foundation for our hold-
ing was the general principle of church autonomy to which
we have already referred: independence in matters of faith
and doctrine and in closely linked matters of internal govern-
ment. The three prior decisions on which we primarily re-
lied drew on this broad principle, and none was exclusively
concerned with the selection or supervision of clergy. Wat-
son v. Jones, 13 Wall. 679 (1872), involved a dispute about
the control of church property, and both Kedroff, 344 U. S.
94, and Serbian Eastern Orthodox Diocese for United States
and Canada v. Milivojevich, 426 U. S. 696 (1976), also con-
9
Cf. McConnell, Establishment and Disestablishment at the Founding,
Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2141
(2003) (politically appointed ministers in colonial Virginia were, in the view
of the faithful, often “less than zealous in their spiritual responsibilities
and less than irreproachable in their personal morals”).

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cerned the control of property, as well as the appointment
and
authority of bishops.
In addition to these precedents, we looked to the “back-
ground” against which “the First Amendment was adopted.”
Hosanna-Tabor, 565 U. S., at 183. We noted that 16th-
century British statutes had given the Crown the power to
fll high “religious offces” and to control the exercise of reli-
gion in other ways, and we explained that the founding gen-
eration sought to prevent a repetition of these practices in
our country. Ibid. Because Cheryl Perich, the teacher in
Hosanna-Tabor, had a title that included the word “minis-
ter,” we naturally concentrated on historical events involv-
ing clerical offces, but the abuses we identifed were not lim-
ited to the control of appointments.
We pointed to the various Acts of Uniformity, id., at 182,
which dictated what ministers could preach and imposed
penalties for non-compliance. Under the 1549 Act, a minis-
ter who “preache[d,] declare[d,] or [spoke] any thin[g]” in
derogation of any part of the Book of Common Prayer could
be sentenced to six months in jail for a frst offense and life
imprisonment for a third violation. Act of Uniformity, 2 &
3 Edw. 6, ch. 1. In addition, all other English subjects were
forbidden to say anything against the Book of Common
Prayer in “[i]nterludes[,] play[s,] song[s,] r[h]ymes, or by
other open [w]ord[s].” Ibid. A 1559 law contained similar
prohibitions. See Act of Uniformity, 1 Eliz., ch. 2.
After the Restoration, Parliament enacted a new law with
a similar aim. Ministers and “Lecturer[s]” were required to
pledge “unfeigned assent and consent” to the Book of Com-
mon Prayer, and all schoolmasters, private tutors, and uni-
versity professors were required to “conforme to the Liturgy
of the Church of England” and not “to endeavour any change
or alteration” of the church. Act of Uniformity, 1662, 14
Car. 2, ch. 4.
British law continued to impose religious restrictions on
education in the 18th century and past the time of the adop-

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tion of the First Amendment. The Schism or Established
Church
Act of 1714, 13 Ann., ch. 7, required that schoolmas-
ters and tutors be licensed by a bishop. Non-conforming
Protestants, as well as Catholics and Jews, could not teach
at or attend the two universities, and as Blackstone wrote,
“[p]ersons professing the popish religion [could] not keep or
teach any school under pain of perpetual imprisonment.” 4
W. Blackstone, Commentaries on the Laws of England 55
(8th ed. 1778). The law also imposed penalties on “any per-
son [who] sen[t] another abroad to be educated in the popish
religion . . . or [who] contribute[d] to their maintenance when
there.” Id., at 55–56.
British colonies in North America similarly controlled both
the appointment of clergy, see Hosanna-Tabor, 565 U. S., at
183, and the teaching of students. A Maryland law “prohib-
ited any Catholic priest or lay person from keeping school, or
taking upon himself the education of youth.” 2 T. Hughes,
History of the Society of Jesus in North America: Colonial
and Federal 443–444 (1917). In 1771, the Governor of New
York was instructed to require that all schoolmasters arriv-
ing from England obtain a license from the Bishop of London.
3 C. Lincoln, The Constitutional History of New York 485,
745 (1906). New York law also required an oath and license
for any “ `vagrant Preacher, Moravian, or disguised Papist' ”
to “ `Preach or Teach, Either in Public or Private.' ” S.
Cobb, The Rise of Religious Liberty in America 358 (1902).
C
In Hosanna-Tabor, Cheryl Perich, a kindergarten and
fourth grade teacher at an Evangelical Lutheran school, fled
suit in federal court, claiming that she had been discharged
because of a disability, in violation of the Americans with
Disabilities Act of 1990 (ADA), 42 U. S. C. § 12112(a). The
school responded that the real reason for her dismissal was
her violation of the Lutheran doctrine that disputes should
be resolved internally and not by going to outside authori-

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ties. We held that her suit was barred by the “ministerial
excepti
on” and noted that it “concern[ed] government inter-
ference with an internal church decision that affects the faith
and mission of the church.” 565 U. S., at 190. We declined
“to adopt a rigid formula for deciding when an employee
qualifes as a minister,” and we added that it was “enough for
us to conclude, in this our frst case involving the ministerial
exception, that the exception covers Perich, given all the cir-
cumstances of her employment.” Id., at 190. We identifed
four relevant circumstances but did not highlight any as
essential.
First, we noted that her church had given Perich the title
of “minister, with a role distinct from that of most of its
members.” Id., at 191. Although she was not a minister in
the usual sense of the term—she was not a pastor or deacon,
did not lead a congregation, and did not regularly conduct
religious services—she was classifed as a “called” teacher,
as opposed to a lay teacher, and after completing certain aca-
demic requirements, was given the formal title “ `Minister of
Religion, Commissioned.' ” Id., at 177–178, 191.
Second, Perich's position “refected a signifcant degree of
religious training followed by a formal process of commis-
sioning.” Id., at 191.
Third, “Perich held herself out as a minister of the Church
by accepting the formal call to religious service, according
to its terms,” and by claiming certain tax benefts. Id., at
191–192.
Fourth, “Perich's job duties refected a role in conveying
the Church's message and carrying out its mission.” Id.,
at 192. The church charged her with “ `lead[ing] others to-
ward Christian maturity' ” and “ `teach[ing] faithfully the
Word of God, the Sacred Scriptures, in its truth and purity
and as set forth in all the symbolical books of the Evangelical
Lutheran Church.' ” Ibid. Although Perich also provided
instruction in secular subjects, she taught religion four days
a week, led her students in prayer three times a day, took her
students to a chapel service once a week, and participated in

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the liturgy twice a year. “As a source of religious instruc-
ti
on,” we explained, “Perich performed an important role in
transmitting the Lutheran faith to the next generation.”
Ibid.
The case featured two concurrences. In the frst, Justice
Thomas stressed that courts should “defer to a religious or-
ganization's good-faith understanding of who qualifes as its
minister.” Id., at 196. That is so, Justice Thomas ex-
plained, because “[a] religious organization's right to choose
its ministers would be hollow . . . if secular courts could
second-guess” the group's sincere application of its religious
tenets. Id., at 197.
The second concurrence argued that application of the
“ministerial exception” should “focus on the function per-
formed by persons who work for religious bodies” rather
than labels or designations that may vary across faiths. Id.,
at 198 (opinion of Alito, J., joined by Kagan, J.). This opin-
ion viewed the title of “minister” as “relevant” but “neither
necessary nor suffcient.” Id., at 202. It noted that “most
faiths do not employ the term `minister' ” and that some
“consider the ministry to consist of all or a very large per-
centage of their members.” Ibid. The opinion concluded
that the “ `ministerial' exception” “should apply to any `em-
ployee' who leads a religious organization, conducts worship
services or important religious ceremonies or rituals, or
serves as a messenger or teacher of its faith.” Id., at 199.
D
1
In determining whether a particular position falls within
the Hosanna-Tabor exception, a variety of factors may be
important.
10
The circumstances that informed our decision
10
In considering the circumstances of any given case, courts must take
care to avoid “resolving underlying controversies over religious doctrine.”
Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, 393 U. S. 440, 449 (1969); ibid. (“First Amendment
values are plainly jeopardized when . . . litigation is made to turn on the

752 OUR
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in Hosanna-Tabor were relevant because of their relation-
sh
ip to Perich's “role in conveying the Church's message and
carrying out its mission,” id., at 192, but the other noted
circumstances also shed light on that connection. In a de-
nomination that uses the term “minister,” conferring that
title naturally suggests that the recipient has been given an
important position of trust. In Perich's case, the title that
she was awarded and used demanded satisfaction of signif-
cant academic requirements and was conferred only after a
formal approval process, id., at 191, and those circumstances
also evidenced the importance attached to her role, ibid.
But our recognition of the signifcance of those factors in
Perich's case did not mean that they must be met—or even
that they are necessarily important—in all other cases.
Take the question of the title “minister.” Simply giving
an employee the title of “minister” is not enough to justify
the exception. And by the same token, since many religious
traditions do not use the title “minister,” it cannot be a nec-
essary requirement. Requiring the use of the title would
constitute impermissible discrimination, and this problem
cannot be solved simply by including positions that are
thought to be the counterparts of a “minister,” such as
priests, nuns, rabbis, and imams. See Brief for Respondents
21. Nuns are not the same as Protestant ministers. A
brief submitted by Jewish organizations makes the point that
“Judaism has many `ministers,' ” that is, “the term `minister'
encompasses an extensive breadth of religious functionaries
in Judaism.”
11
For Muslims, “an inquiry into whether
imams or other leaders bear a title equivalent to `minister'
resolution by civil courts of controversies over religious doctrine and prac-
tice”); see also Serbian Eastern Orthodox Diocese for United States and
Canada v. Milivojevich, 426 U. S. 696, 715, n. 8 (1976) (“ `It is not to be
supposed that the judges of the civil courts can be as competent in the
ecclesiastical law and religious faith of all these bodies as the ablest men
in each are in reference to their own' ” (quoting Watson v. Jones, 13 Wall.
679, 729 (1872))); cf. Thomas v. Review Bd. of Ind. Employment Security
Div., 450 U. S. 707, 714–716 (1981).
11
Brief for COLPA et al. as Amici Curiae i, 3 (quotation modifed).

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can present a troubling choice between denying a central
pi
llar of Islam—i.e., the equality of all believers—and risking
loss of ministerial exception protections.”
12
If titles were all-important, courts would have to decide
which titles count and which do not, and it is hard to see how
that could be done without looking behind the titles to what
the positions actually entail. Moreover, attaching too much
signifcance to titles would risk privileging religious tradi-
tions with formal organizational structures over those that
are less formal.
For related reasons, the academic requirements of a posi-
tion may show that the church in question regards the posi-
tion as having an important responsibility in elucidating or
teaching the tenets of the faith. Presumably the purpose of
such requirements is to make sure that the person holding
the position understands the faith and can explain it accu-
rately and effectively. But insisting in every case on rigid
academic requirements could have a distorting effect. This
is certainly true with respect to teachers. Teaching chil-
dren in an elementary school does not demand the same
formal religious education as teaching theology to divinity
students. Elementary school teachers often teach secular
subjects in which they have little if any special training. In
addition, religious traditions may differ in the degree of for-
mal religious training thought to be needed in order to teach.
See, e. g., Brief for Ethics and Religious Liberty Commission
of the Southern Baptist Convention et al. as Amici Curiae
12 (“many Protestant groups have historically rejected any
requirement of formal theolog ical training ”). In short,
these circumstances, while instructive in Hosanna-Tabor,
are not infexible requirements and may have far less sig-
nifcance in some cases.
What matters, at bottom, is what an employee does. And
implicit in our decision in Hosanna-Tabor was a recognition
that educating young people in their faith, inculcating its
12
Brief for Asma T. Uddin as Amicus Curiae 2.

754 OUR
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teachings, and training them to live their faith are responsi-
bi
lities that lie at the very core of the mission of a private
religious school. As we put it, Perich had been entrusted
with the responsibility of “transmitting the Lutheran faith
to the next generation.” 565 U. S., at 192. One of the con-
currences made the same point, concluding that the excep-
tion should include “any `employee' who leads a religious
organization, conducts worship services or important reli-
gious ceremonies or rituals, or serves as a messenger or
teacher of its faith.” Id., at 199 (opinion of Alito, J.) (em-
phasis added).
Religious education is vital to many faiths practiced in the
United States. This point is stressed by briefs fled in sup-
port of OLG and St. James by groups affliated with a wide
array of faith traditions. In the Catholic tradition, religious
education is “ `intimately bound up with the whole of the
Church's life.' ” Catechism of the Catholic Church 8 (1994).
Under canon law, local bishops must satisfy themselves that
“those who are designated teachers of religious instruction
in schools . . . are outstanding in correct doctrine, the witness
of a Christian life, and teaching skill.” Code of Canon Law,
Canon 804, § 2 (Eng. transl. 1998).
Similarly, Protestant churches, from the earliest settle-
ments in this country, viewed education as a religious obliga-
tion. A core belief of the Puritans was that education was
essential to thwart the “chief project of that old deluder,
Satan, to keep men from the knowledge of the Scriptures.”
13
Thus, in 1647, the Massachusetts General Court passed what
has been called the Old Deluder Satan Act, requiring every
sizable town to establish a school.
14
Most of the oldest educa-
tional institutions in this country were originally established
by or affliated with churches, and in recent years, non-
13
Old Deluder Satan Act of 1647, in The Laws and Liberties of Massa-
chusetts 47 (M. Farrand ed. 1929).
14
Ibid.

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denominational Christian schools have proliferated with the
ai
m of inculcating Biblical values in their students.
15
Many
such schools expressly set themselves apart from public
schools that they believe do not refect their values.
16
Religious education is a matter of central importance in
Judaism. As explained in briefs submitted by Jewish orga-
nizations, the Torah is understood to require Jewish parents
to ensure that their children are instructed in the faith.
17
One brief quotes Maimonides's statement that religious in-
struction “is an obligation of the highest order, entrusted
only to a schoolteacher possessing `fear of Heaven.' ”
18
“The
contemporary American Jewish community continues to
place the education of children in its faith and rites at the
center of its communal efforts.”
19
Religious education is also important in Islam. “[T]he ac-
quisition of at least rudimentary knowledge of religion and
its duties [is] mandatory for the Muslim individual.”
20
This
precept is traced to the Prophet Muhammad, who proclaimed
that “ `[t]he pursuit of knowledge is incumbent on every Mus-
lim.' ”
21
“[T]he development of independent private Islamic
15
See P. Parsons, Inside America's Christian Schools (1987); see also
Association of Christian Schools International, Why Christian Schooling?,
https://www.acsi.org/membership/why-christian-schooling; Association of
Classical Christian Schools, What is CCE?, https://classicalchristian.org/
what-is-cce/?v=a44707111a05.
16
R. Dreher, The Benedict Option 146, 155, 160 (2017); see, e. g., J. Eke-
land & B. Walton, Discover Christian Schools: Ten Differences, https://
discoverchr istianschools.com/wp-content/uploads/2019/02/ DCS_Ten
Differences.pdf.
17
See Deuteronomy 6:7, 11:19.
18
Brief for General Conference of Seventh-day Adventists et al. as
Amici Curiae 7–9 (quoting Maimonides, Mishne Torah, Hilkhot Talmud
Torah 1:2; 2:1, 3).
19
Brief for Church of God in Christ, Inc., et al. as Amici Curiae 15.
20
Afsaruddin, Muslim Views on Education: Parameters, Purview, and
Possibilities, 44 J. Cath. Legal Studies 143, 143–144 (2005).
21
Id., at 143.

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schools ha[s] become an important part of the picture of Mus-
l
im education in America.”
22
The Church of Jesus Christ of Latter-day Saints has a long
tradition of religious education, with roots in revelations
given to Joseph Smith. See Doctrine and Covenants of the
Church of Jesus Christ of Latter-day Saints § 93:36 (2013).
“[T]he Church Board of Education has established elemen-
tary, middle, or secondary schools in which both secular and
religious instruction is offered.”
23
Seventh-day Adventists “trace the importance of educa-
tion back to the Garden of Eden.”
24
Seventh-day Adventist
formation “restore[s] human beings into the image of God
as revealed by the life of Jesus Christ” and focuses on the
development of “knowledge, skills, and understandings to
serve God and humanity.”
25
This brief survey does not do justice to the rich diversity
of religious education in this country, but it shows the close
connection that religious institutions draw between their
central purpose and educating the young in the faith.
2
When we apply this understanding of the Religion Clauses
to the cases now before us, it is apparent that Morrissey-
Berru and Biel qualify for the exemption we recognized in
Hosanna-Tabor. There is abundant record evidence that
they both performed vital religious duties. Educating and
forming students in the Catholic faith lay at the core of the
mission of the schools where they taught, and their employ-
22
Haddad & Smith, Introduction: The Challenge of Islamic Education in
North America, in Educating the Muslims of America 3, 6, 11 (Y. Haddad,
F. Senzai, & J. Smith eds. 2009).
23
Berrett, Church Educational System (CES), in 1 Encyclopedia of Mor-
monism 274, 275 (D. Ludlow ed. 1992).
24
Brief for General Conference of Seventh-day Adventists et al. as
Amici Curiae 7.
25
Seventh-day Adventist Church, About Us, https://adventisteducation
.org/abt.html.

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Opinion of the Court
ment agreements and faculty handbooks specifed in no un-
cer
tain terms that they were expected to help the schools
carry out this mission and that their work would be evalu-
ated to ensure that they were fulflling that responsibility.
As elementary school teachers responsible for providing in-
struction in all subjects, including religion, they were the
members of the school staff who were entrusted most di-
rectly with the responsibility of educating their students in
the faith. And not only were they obligated to provide in-
struction about the Catholic faith, but they were also ex-
pected to guide their students, by word and deed, toward
the goal of living their lives in accordance with the faith.
They prayed with their students, attended Mass with the
students, and prepared the children for their participation in
other religious activities. Their positions did not have all
the attributes of Perich's. Their titles did not include the
term “minister,” and they had less formal religious training,
but their core responsibilities as teachers of religion were
essentially the same. And both their schools expressly saw
them as playing a vital part in carrying out the mission of
the church, and the schools' defnition and explanation of
their roles is important. In a country with the religious di-
versity of the United States, judges cannot be expected to
have a complete understanding and appreciation of the role
played by every person who performs a particular role in
every religious tradition. A religious institution's explana-
tion of the role of such employees in the life of the religion
in question is important.
III
In holding that Morrissey-Berru and Biel did not fall
within the Hosanna-Tabor exception, the Ninth Circuit mis-
understood our decision. Both panels treated the circum-
stances that we found relevant in that case as checklist items
to be assessed and weighed against each other in every case,
and the dissent does much the same. That approach is con-
trary to our admonition that we were not imposing any

758 OUR
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Opinion of the Court
“rigid formula.” 565 U. S., at 190. Instead, we called on
cour
ts to take all relevant circumstances into account and to
determine whether each particular position implicated the
fundamental purpose of the exception.
26
The Ninth Circuit's rigid test produced a distorted analy-
sis. First, it invested undue signifcance in the fact that
Morrissey-Berru and Biel did not have clerical titles. 769
Fed. Appx., at 460; 911 F. 3d, at 608–609; post, at 779–780.
It is true that Perich's title included the term “minister,” but
we never said that her title (or her reference to herself as
26
The dissent charges that we transform the holding in Hosanna-Tabor,
but that is what the dissent does. Post, at 772–773. According to the
dissent: “Hosanna-Tabor charted a way to separate leaders who `personify'
a church's `beliefs' [and] `minister to the faithful' from individuals who may
simply relay religious tenets.” Post, at 772 (quoting 565 U. S., at 188, 195).
The dissent cobbles together this new test by taking phrases out of
context from separate passages and inserting a proposition never sug-
gested in Hosanna-Tabor, namely, that an individual cannot qualify for the
exception if he or she “simply relay[s] religious tenets” without “ `minister-
[ing] to the faithful.' ” Post, at 772. Hosanna-Tabor never adopted this
unworkable test. It did not suggest that the exception it recognized ap-
plied only to “leaders.” Post, at 769, and n. 1. The term is never used
in the opinion of the Court. Insisting on leadership as a qualifcation
would shrink the exception even more than respondents advocate. For
example, they agree that it should apply to nuns, see Brief for Respond-
ents 21, but, under the dissent's test, is every cloistered nun—or every
cloistered monk—disqualifed? And even if leadership were a require-
ment, why couldn't a religious teacher be regarded as a leader of the stu-
dents in the class?
Nor did our opinion in Hosanna-Tabor draw a critical distinction be-
tween a person who “simply relay[s] religious tenets” and one who relays
such tenets while also “ `minister[ing] to the faithful.' ” Post, at 772. A
teacher, such as an instructor in a class on world religions, who merely
provides a description of the beliefs and practices of a religion without
making any effort to inculcate those beliefs could not qualify for the excep-
tion, but otherwise the distinction makes no sense. If a member of the
Christian clergy or a rabbi spends almost all of his or her time studying
Scripture or theology and writing instead of ministering to a congregation,
would that individual fall outside the exception as understood by the
dissent?

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Opinion of the Court
a “minister”) was necessary to trigger the Hosanna-Tabor
excepti
on. Instead, “those considerations . . . merely made
Perich's case an especially easy one.” Brief for United
States as Amicus Curiae 19. Moreover, both Morrissey-
Berru and Biel had titles. They were Catholic elementary
school teachers, which meant that they were their students'
primary teachers of religion. The concept of a teacher of
religion is loaded with religious signifcance. The term
“rabbi” means teacher, and Jesus was frequently called
rabbi.
27
And if a more esoteric title is needed, they were
both regarded as “catechists.”
28
Second, the Ninth Circuit assigned too much weight to the
fact that Morrissey-Berru and Biel had less formal religious
schooling than Perich. 769 Fed. Appx., at 460–461; 911
F. 3d, at 608; post, at 780–781. The signifcance of formal
training must be evaluated in light of the age of the students
taught and the judgment of a religious institution regarding
the need for formal training. The schools in question here
thought that Morrissey-Berru and Biel had a suffcient un-
derstanding of Catholicism to teach their students,
29
and
judges have no warrant to second-guess that judgment or to
impose their own credentialing requirements.
Third, the St. James panel inappropriately diminished the
signifcance of Biel's duties because they did not evince “close
guidance and involvement” in “students' spiritual lives.”
911 F. 3d, at 609; post, at 776, 781–782. Specifcally, the panel
majority suggested that Biel merely taught “religion from a
27
See, e. g., Mark 9:5, 11:21; John 1:38, 3:26, 4:31, 6:25, 9:2.
28
See App. to Pet. for Cert. in No. 19–267, at 56a, 60a; ER 593
(St. James) (“[T]eachers are expected to . . . engage in catechetical . . .
development”); Record in No. 2:15–CV–04248 (CD Cal.), Doc. 67–1, ¶10
(“requir[ing]” attendance at “Catholic education conference” to “prepare
teachers as religious educators”).
29
The record also makes clear (contrary to the Ninth Circuit's and dis-
sent's conclusion, post, at 781) that Morrissey-Berru and Biel “held them-
selves out” as authorities on religion to their students, and, by extension,
their families. See supra, at 738–745.

760 OUR
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Opinion of the Court
book required by the school,” “joined” students in prayer,
and
accompanied students to Mass in order to keep them
“ `quiet and in their seats.' ” 911 F. 3d, at 609. This misrep-
resents the record and its signifcance. For better or worse,
many primary school teachers tie their instruction closely to
textbooks, and many faith traditions prioritize teaching from
authoritative texts. See Brief for InterVarsity Christian
Fellowship USA et al. as Amici Curiae 26; Brief for Senator
Mike Lee et al. as Amici Curiae 24–27. As for prayer, Biel
prayed with her students, taught them prayers, and super-
vised the prayers led by students. She prepared them for
Mass, accompanied them to Mass, and prayed with them
there. See supra, at 744.
In Biel's appeal, the Ninth Circuit suggested that the
Hosanna-Tabor exception should be interpreted narrowly
because the ADA, 42 U. S. C. § 12101 et seq., and Title VII,
§ 2000e–2, contain provisions allowing religious employers to
give preference to members of a particular faith in employ-
ing individuals to do work connected with their activities.
911 F. 3d, at 611, n. 5; post, at 767. But the Hosanna-Tabor
exception serves an entirely different purpose. Think of the
quintessential case where a church wants to dismiss its min-
ister for poor performance. The church's objection in that
situation is not that the minister has gone over to some other
faith but simply that the minister is failing to perform essen-
tial functions in a satisfactory manner.
While the Ninth Circuit treated the circumstances that
we cited in Hosanna-Tabor as factors to be assessed and
weighed in every case, respondents would make the govern-
ing test even more rigid. In their view, courts should begin
by deciding whether the frst three circumstances—a minis-
terial title, formal religious education, and the employee's
self-description as a minister—are met and then, in order to
check the conclusion suggested by those factors, ask whether
the employee performed a religious function. Brief for Re-
spondents 20–24. For reasons already explained, there is

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Opinion of the Court
no basis for treating the circumstances we found relevant in
H
osanna-Tabor in such a rigid manner.
Respondents go further astray in suggesting that an em-
ployee can never come within the Hosanna-Tabor exception
unless the employee is a “practicing ” member of the religion
with which the employer is associated. Brief for Respond-
ents 12–13, 21. In hiring a teacher to provide religious in-
struction, a religious school is very likely to try to select a
person who meets this requirement, but insisting on this as
a necessary condition would create a host of problems. As
pointed out by petitioners, determining whether a person is
a “co-religionist” will not always be easy. See Reply Brief
14 (“Are Orthodox Jews and non-Orthodox Jews coreligion-
ists? . . . Would Presbyterians and Baptists be similar
enough? Southern Baptists and Primitive Baptists?”). De-
ciding such questions would risk judicial entanglement in re-
ligious issues.
Expanding the “co-religionist” requirement, Brief for Re-
spondents 28–29, 44, to exclude those who no longer practice
the faith would be even worse, post, at 777–778. Would the
test depend on whether the person in question no longer con-
sidered himself or herself to be a member of a particular faith?
Or would the test turn on whether the faith tradition in ques-
tion still regarded the person as a member in some sense?
Respondents arg ue that Morr issey-Berr u cannot fa ll
within the Hosanna-Tabor exception because she said in con-
nection with her lawsuit that she was not “a practicing Cath-
olic,” but acceptance of that argument would require courts
to delve into the sensitive question of what it means to be
a “practicing ” member of a faith, and religious employers
would be put in an impossible position. Morrissey-Berru's
employment agreements required her to attest to “good
standing ” with the church. See App. 91, 144, 154. Beyond
insisting on such an attestation, it is not clear how religious
groups could monitor whether an employee is abiding by all
religious obligations when away from the job. Was OLG

762 OUR
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Thomas, J., concurring
supposed to interrogate Morrissey-Berru to confrm that she
attended
Mass every Sunday?
Respondents argue that the Hosanna-Tabor exception is
not workable unless it is given a rigid structure, but we de-
clined to adopt a “rigid formula” in Hosanna-Tabor, and the
lower courts have been applying the exception for many
years without such a formula. Here, as in Hosanna-Tabor,
it is suffcient to decide the cases before us. When a school
with a religious mission entrusts a teacher with the respon-
sibility of educating and forming students in the faith, judi-
cial intervention into disputes between the school and the
teacher threatens the school's independence in a way that
the First Amendment does not allow.
***
For these reasons, the judgment of the Court of Appeals
in each case is reversed, and the cases are remanded for pro-
ceedings consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Gorsuch joins,
concurring.
I agree with the Court that Morrissey-Berru's and Biel's
positions fall within the “ministerial exception,”
1
because, as
Catholic school teachers, they are charged with “carry[ing]
out [the religious] mission” of the parish schools. Ante, at
757. The Court properly notes that “judges have no warrant
to second-guess [the schools'] judgment” of who should hold
such a position “or to impose their own credentialing require-
1
As the Court acknowledges, the term “ministerial exception” is some-
what of a misnomer. See ante, at 747. The First Amendment's protec-
tion of religious organizations' employment decisions is not limited to
members of the clergy or others holding positions akin to that of a “minis-
ter.” Ibid. Rather, as these cases demonstrate, such protection extends
to the laity, provided they are entrusted with carrying out the religious
mission of the organization. Ante, at 738, 756–757.

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Thomas, J., concurring
ments.” Ante, at 759. Accordingly, I join the Court's opin-
i
on in full. I write separately, however, to reiterate my
view that the Religion Clauses require civil courts to defer
to religious organizations' good-faith claims that a certain
employee's position is “ministerial.” See Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC, 565
U. S. 171, 196 (2012) (Thomas, J., concurring).
This deference is necessary because, as the Court rightly
observes, judges lack the requisite “understanding and ap-
preciation of the role played by every person who performs
a particular role in every religious tradition.” Ante, at 757.
What qualifes as “ministerial” is an inherently theological
question, and thus one that cannot be resolved by civil courts
through legal analysis. See Hosanna-Tabor, supra, at 197
(Thomas, J., concurring); see also Memorial and Remon-
strance Against Religious Assessments, in Selected Writings
of James Madison 21, 24 (R. Ketcham ed. 2006) (the idea that
a “Civil Magistrate is a competent Judge of Religious truth”
is “an arrogant pretension” that has been “falsifed”). Con-
trary to the dissent's claim, judges do not shirk their judicial
duty or provide a mere “rubber stamp” when they defer to
a religious organization's sincere beliefs. Post, at 773 (opin-
ion of Sotomayor, J.). Rather, they heed the First Amend-
ment, which “commands civil courts to decide [legal] dis-
putes without resolving underlying controversies over
religious doctrine.” Presbyterian Church in U. S. v. Mary
Elizabeth Blue Hull Memorial Presbyterian Church, 393
U. S. 440, 449 (1969); see also ante, at 751, n. 10.
Moreover, because the application of the exception turns
on religious beliefs, the duties that a given religious organi-
zation will deem “ministerial” are sure to vary. Although
the functions recognized as ministerial by the Lutheran
school in Hosanna-Tabor are similar to those considered
ministerial by the Catholic schools here, such overlap will
not necessarily exist with other religious organizations, par-
ticularly those “outside of the `mainstream.' ” 565 U. S.,

764 OUR
LADY OF GUADALUPE SCHOOL v.
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Thomas, J., concurring
at 197 (Thomas, J., concurring). To avoid disadvantaging
these
minority faiths and interfering in “a religious group's
right to shape its own faith and mission,” id., at 188 (majority
opinion), courts should defer to a religious organization's sin-
cere determination that a position is “ministerial.” Id., at
197 (Thomas, J., concurring).
The Court's decision today is a step in the right direction.
The Court properly declines to consider whether an em-
ployee shares the religious organization's beliefs when deter-
mining whether that employee's position falls within the
“ministerial exception, ” explaining that to “determin[e]
whether a person is a `co-religionist' . . . would risk judicial
entanglement in religious issues.” Ante, at 761. But the
same can be said about the broader inquiry whether an em-
ployee's position is “ministerial.” This Court usually goes
to great lengths to avoid governmental “entanglement” with
religion, particularly in its Establishment Clause cases.
See, e. g., Lemon v. Kurtzman, 403 U. S. 602, 613 (1971).
2
For example, the Court has held that a public school became
impermissibly “entangle[d]” with religion by simply permit-
ting students to say a prayer before football games and over-
seeing a class election for whom would deliver the prayer.
Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 305–
307 (2000). And, in Locke v. Davey, 540 U. S. 712 (2004), the
Court concluded that it would violate States' “antiestablish-
ment interests” if tax dollars even indirectly supported the
education of ministers, id., at 722. But, when it comes to
the autonomy of religious organizations in our ministerial-
2
As I have previously explained, this Court's Establishment Clause ju-
risprudence “is unmoored from the original meaning of the First Amend-
ment.” Espinoza v. Montana Dept. of Revenue, 591 U. S. 464, 490 (2020)
(concurring opinion). Properly understood, the Establishment Clause
proscribes governmental “ `coercion of religious orthodoxy and of fnancial
support by force of law and threat of penalty.' ” American Legion v.
American Humanist Assn., 588 U. S. 29, 75 (2019) (Thomas, J., concurring
in judgment) (quoting Lee v. Weisman, 505 U. S. 577, 640 (1992) (Scalia,
J., dissenting)).

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Thomas, J., concurring
exception cases, these concerns of entanglement have not
pre
vented the Court from weighing in on the theological
questions of which positions qualify as “ministerial.”
As this Court has explained, the Religion Clauses do not
permit governmental “interfere[nce] with . . . a religious
group's right to shape its own faith and mission through its
appointments.” Hosanna-Tabor, supra, at 188. To avoid
such interference, we should defer to these groups' good-
faith understandings of which individuals are charged with
carrying out the organizations' religious missions.
Here, the record confrms the sincerity of petitioners'
claims that, as lay teachers, Morrissey-Berru and Biel held
ministerial roles in these parish schools. For example, the
Our Lady of Guadalupe Faculty Handbook states that lay
teachers serve “special pastoral administrative roles . . . in
the service of the people of God.” App. to Pet. for Cert. in
No. 19–267, p. 52a (emphasis added). Moreover, their “es-
sential job duties” include “[m]odeling, teaching of and com-
mitment to Catholic religious and moral values.” Id., at 55a
(boldface deleted); see also id., at 32a (Morrissey-Berru's
teaching contract); App. to Pet. for Cert. in No. 19–348, p. 96a
(Biel's teaching contract). And both Morrissey-Berru's and
Biel's teaching contracts required that their “duties and re-
sponsibilities . . . be performed [with an] overriding commit-
ment” to “develop[ing] . . . a Catholic School Faith Commu-
nity” in accordance with “the doctrines, laws and norms of
the Catholic Church.” Ibid.; App. to Pet. for Cert. in
No. 19–267, at 32a. Finally, amicus curiae United States
Conference of Catholic Bishops confrms that petitioners' un-
derstanding is consistent with the Church's view that “Cath-
olic teachers play a critical role” in the Church's ministry.
Brief for United States Conference of Catholic Bishops 10–
11; see also Catechism of the Catholic Church 8 (2d ed. 1994)
(noting that the goal of “education in the faith of children [is]
to initiat[e] the hearers into the fullness of Christian life”
(emphasis deleted; internal quotation marks omitted)).

766 OUR
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Sotomayor, J., dissenting
The foregoing is more than enough to sustain the sincerity
of
petitioners' claims that Morrissey-Berru and Biel held
ministerial roles in the parish schools. Their claims thus
warrant this Court's deference and serve as a suffcient basis
for applying the ministerial exception.
Justice Sotomayor, w ith whom Justice Ginsburg
joins, dissenting.
Two employers fred their employees allegedly because
one had breast cancer and the other was elderly. Purport-
ing to rely on this Court's decision in Hosanna-Tabor Evan-
gelical Lutheran Church and School v. EEOC, 565 U. S. 171
(2012), the majority shields those employers from disability
and age-discrimination claims. In the Court's view, because
the employees taught short religion modules at Catholic ele-
mentary schools, they were “ministers” of the Catholic faith
and thus could be fred for any reason, whether religious or
nonreligious, benign or bigoted, without legal recourse. The
Court reaches this result even though the teachers taught
primarily secular subjects, lacked substantial religious titles
and training, and were not even required to be Catholic. In
foreclosing the teachers' claims, the Court skews the facts,
ignores the applicable standard of review, and collapses
Hosanna-Tabor's careful analysis into a single consideration:
whether a church thinks its employees play an important
religious role. Because that simplistic approach has no basis
in law and strips thousands of schoolteachers of their legal
protections, I respectfully dissent.
I
A
Our pluralistic society requires religious entities to abide
by generally applicable laws. E.g., Employment Div., Dept.
of Human Resources of Ore. v. Smith, 494 U. S. 872, 879–
882 (1990). Consistent with the First Amendment (and over
sincerely held religious objections), the Government may

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767
Sotomayor, J., dissenting
compel religious institutions to pay Social Security taxes for
their
employees, United States v. Lee, 455 U. S. 252, 256–
261 (1982), deny nonproft status to entities that discriminate
because of race, Bob Jones Univ. v. United States, 461 U. S.
574, 603–605 (1983), require applicants for certain public ben-
efts to register with Social Security numbers, Bowen v. Roy,
476 U. S. 693, 699–701 (1986), enforce child-labor protections,
Prince v. Massachusetts, 321 U. S. 158, 166–170 (1944), and
impose minimum-wage laws, Tony and Susan Alamo Foun-
dation v. Secretary of Labor, 471 U. S. 290, 303–306 (1985).
Congress, however, has crafted exceptions to protect reli-
gious autonomy. Some antidiscrimination laws, like the
Americans with Disabilities Act, permit a religious institu-
tion to consider religion when making employment decisions.
42 U. S. C. § 12113(d)(1). Under that Act, a religious organi-
zation may also “require that all applicants and employees
conform” to the entity's “religious tenets.” § 12113(d)(2).
Title VII further permits a school to prefer “hir[ing] and
employ[ing]” people “of a particular religion” if its curricu-
lum “propagat[es] ” that relig ion. § 2000e–2(e); see also
§ 2000e–1(a). These statutory exceptions protect a religious
entity's ability to make employment decisions—hiring or fr-
ing—for religious reasons.
The “ministerial exception,” by contrast, is a judge-made
doctrine. This Court frst recognized it eight years ago in
Hosanna-Tabor, concluding that the First Amendment cate-
gorically bars certain antidiscrimination suits by religious
leaders against their religious employers. 565 U. S., at 188–
190. When it applies, the exception is extraordinarily po-
tent: It gives an employer free rein to discriminate because
of race, sex, pregnancy, age, disability, or other traits pro-
tected by law when selecting or fring their “ministers,” even
when the discrimination is wholly unrelated to the employ-
er's religious beliefs or practices. Id., at 194–195. That is,
an employer need not cite or possess a religious reason at
all; the ministerial exception even condones animus.

768 OUR
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Sotomayor, J., dissenting
When this Court adopted the ministerial exception, it af-
fr
med the holdings of virtually every federal appellate court
that had embraced the doctrine. Id., at 188, and n. 2.
Those courts had long understood that the exception's stark
departure from antidiscrimination law is narrow. Wary of
the exception's “potential for abuse,” federal courts treaded
“case-by-case” in determining which employees are ministers
exposed to discrimination without recourse. Scharon v.
St. Luke's Episcopal Presbyterian Hospitals, 929 F. 2d 360,
363, n. 3 (CA8 1991). Thus, their analysis typically trained
on whether the putative minister was a “spiritual leade[r]”
within a congregation such that “he or she should be consid-
ered clergy.” Rayburn v. General Conference of Seventh-
day Adventists, 772 F. 2d 1164, 1168–1169 (CA4 1985) (inter-
nal quotation marks omitted); see also Hankins v. Lyght, 441
F. 3d 96, 117–118, and n. 13 (CA2 2006) (Sotomayor, J., dis-
senting) (cataloging Circuit consensus). That approach rec-
ognized that a religious entity's ability to choose its faith
leaders—rabbis, priests, nuns, imams, ministers, to name
a few—should be free from government interference, but
that genera l ly appl icable laws sti l l protec ted most
employees.
This focus on leadership led to a consistent conclusion: Lay
faculty, even those who teach religion at church-affliated
schools, are not “ministers.” In Geary v. Visitation of
Blessed Virgin Mary Parish School, 7 F. 3d 324 (1993), for
instance, the Third Circuit rejected a Catholic school's view
that “[t]he unique and important role of the elementary
school teacher in the Catholic education system” barred a
teacher's discrimination claim under the First Amendment.
Id., at 331. In Dole v. Shenandoah Baptist Church, 899
F. 2d 1389 (1990), the Fourth Circuit found a materially simi-
lar statutory ministerial exception inapplicable to teachers
who taught “all classes” “from a pervasively religious per-
spective,” “le[d]” their “students in prayer,” and were “re-
quired to subscribe to [a church] statement of faith as a
condition of employment.” Id., at 1396. Similar examples

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769
Sotomayor, J., dissenting
abound. See, e. g., EEOC v. Mississippi College, 626 F. 2d
477,
479, 485 (CA5 1980) (ministerial exception inapplicable
to faculty members of a Baptist college that “conceive[d] of
education as an integral part of its Christian mission” and
“expected” faculty “to serve as exemplars of practicing
Christians”); EEOC v. Fremont Christian School, 781 F. 2d
1362, 1369–1370 (CA9 1986) (ministerial exception inapplica-
ble to teachers whom a church considered as performing “an
integral part of the religious mission of the Church to its
children”); cf. Rayburn, 772 F. 2d, at 1168 (“Lay ministries,
even in leadership roles within a congregation, do not com-
pare to the institutional selection for hire of one member
with special theological training to lead others”).
Hosanna-Tabor did not upset this consensus. Instead, it
recognized the ministerial exception's roots in protecting re-
ligious “elections” for “ecclesiastical offces” and guarding
the freedom to “select” titled “clergy” and churchwide lead-
ers. 565 U. S., at 182, 184, 186–187 (internal quotation
marks omitted). To be sure, the Court stated that the “min-
isterial exception is not limited to the head of a religious
congregation.” Id., at 190. Nevertheless, this Court ex-
plained that the exception applies to someone with a leader-
ship role “distinct from that of most of [the organization's]
members,” someone in whom “[t]he members of a religious
group put their faith,” or someone who “personif[ies]” the
organization's “beliefs” and “guide[s] it on its way.” Id., at
188, 191, 196.
1
This analysis is context specifc. It necessarily turns on,
among other things, the structure of the religious organiza-
tion at issue. Put another way (and as the Court repeats
throughout today's opinion), Hosanna-Tabor declined to
1
While jettisoning most of Hosanna-Tabor's majority opinion and insist-
ing on “implicit” rationales that featured in a two-Justice concurrence,
ante, at 753, today's Court curiously accuses this dissent of “cobb[ ling]
together” a standard focused on leadership, ante, at 758, n. 26. But lead-
ership was central in Hosanna-Tabor, just as it was explicit in the appellate
court consensus that Hosanna-Tabor embraced. See supra, at 767–769.

770 OUR
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adopt a “rigid formula for deciding when an employee quali-
fes
as a minister.” Id., at 190. Rather, Hosanna-Tabor
focused on four “circumstances” to determine whether a
fourth-grade teacher, Cheryl Perich, was employed at a Lu-
theran school as a “minister”: (1) “the formal title given [her]
by the Church,” (2) “the substance refected in that title,” (3)
“her own use of that title,” and (4) “the important religious
functions she performed for the Church.” Id., at 190, 192.
Confrming that the ministerial exception applies to a cir-
cumscribed subcategory of faith leaders, the Court analyzed
those four “factors,” ante, at 752, to situate Perich as a minis-
ter within the Lutheran Church's structure.
B
Those considerations showed that Perich had a unique
leadership role within her church. First, the Court noted
that the school had “held Perich out as a minister, with a
role distinct from that of most of its members.” 565 U. S.,
at 191. When the school fred her, Perich was in the role of
a “called teacher,” as opposed to her prior position of “lay
teacher.” Id., at 178. When the church “extended [Perich]
a call,” it also “issued her a `diploma of vocation' according
her the title `Minister of Religion, Commissioned.' ” Id., at
191. And “[i]n a supplement to the diploma, the congrega-
tion undertook to periodically review Perich's `skills of minis-
try' and `ministerial responsibilities,' and to provide for her
`continuing education as a professional person in the ministry
of the Gospel.' ” Ibid.
Second, the Court observed that Perich's job title “re-
fected a signifcant degree of religious training followed by
a formal process of commissioning.” Ibid. Further distin-
guishing Perich from the rest of her faith community, the
Court explained that Perich's “eligib[ility] to become a com-
missioned minister” turned on her completion of a 6-year
process requiring “eight college-level courses in subjects in-
cluding biblical interpretation, church doctrine, and the min-
istry of the Lutheran teacher,” obtaining “the endorsement

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of her local Synod district,” and passing “an oral examination
by
a faculty committee at a Lutheran college.” Ibid.
Third, the Court observed that Perich “held herself out as
a minister of the Church by accepting the formal call to reli-
gious service” and “in other ways as well.” Ibid. Unlike
the lay teachers, for example, Perich claimed a tax exemp-
tion available only to employees earning compensation “in
the exercise of the ministry.” Id., at 192 (internal quotation
marks omitted).
Finally, the Court looked to function, fnding that Perich's
“job duties refected a role in conveying the Church's mes-
sage and carrying out its mission” notably different from
other members of the church. Ibid.; see also id., at 188, 191.
Perich was “expressly charged” with “lead[ing] others” in
their faith and did so by teaching “her students religion four
days a week” and “le[ading] them in prayer three times
a day.” Id., at 192 (internal quotation marks omitted).
About twice a year, Perich led the schoolwide chapel service
by “choosing the liturgy, selecting the hymns, and delivering
a short message based on verses from the Bible.” Ibid.
Perich also “led” her students “in a brief devotional exercise
each morning.” Ibid. The Court thus observed that, “[a]s
a source of religious instruction, Perich performed an impor-
tant role in transmitting the Lutheran faith to the next gen-
eration.” Ibid.
Because this inquiry is holistic, the Court warned that it
is “wrong ” to “say that an employee's title does not matter.”
Id., at 193. The Court was careful not to give religious func-
tions undue weight in identifying church leaders. And the
“amount of time an employee spends on particular activi-
ties,” the Court added, “is relevant in assessing that employ-
ee's status” when measured against “the nature of the reli-
gious functions performed and the other considerations,” like
titles, training, and how the employee held herself out to the
public. Id., at 194.
Hosanna-Tabor's well-rounded approach ensured that a
church could not categorically disregard generally applicable

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antidiscrimination laws for nonreligious reasons. By ana-
lyzi
ng objective and easily discernable markers like titles,
training, and public-facing conduct, Hosanna-Tabor charted
a way to separate leaders who “personify” a church's “be-
liefs” or who “minister to the faithful” from individuals who
may simply relay religious tenets. Id., at 188, 195.
2
This
balanced First Amendment concerns of state-church entan-
glement while avoiding an overbroad carveout from employ-
ment protections.
II
Until today, no court had held that the ministerial excep-
tion applies with disputed facts like these and lay teachers
like respondents, let alone at the summary-judgment stage.
See 911 F. 3d 603, 610 (CA9 2018) (case below in No. 19–348);
see also supra, at 768–769.
Only by rewriting Hosanna-Tabor does the Court reach a
different result. The Court starts with an unremarkable
view: that Hosanna-Tabor's “recognition of the signifcance
of ” the frst three “factors” in that case “did not mean that
they must be met—or even that they are necessarily impor-
tant—in all other cases.” Ante, at 752. True enough.
One can easily imagine religions incomparable to those at
issue in Hosanna-Tabor and here. But then the Court re-
casts Hosanna-Tabor itself: Apparently, the touchstone all
along was a two-Justice concurrence. To that concurrence,
2
Today's Court resists this commonsense approach, warning that it
might mean that “a member of the Christian clergy or a rabbi” who
“spends almost all of his or her time studying Scripture or theology and
writing ” would not fall within the ministerial exception. Ante, at 758,
n. 26. Those examples betray the Court's holding: As the Court intuits
(but does not recognize), the examples likely fall within the ministerial
exception not just because of the functions involved but also because of
the titles (“clergy” and “rabbi”), the training required to obtain those ti-
tles, and the time spent on religious activity (“almost all” of one's time).
Ibid. It should be equally obvious that someone who spends a sliver of
time reading, writing, or teaching about religion does not automatically
become a minister of that religion.

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Sotomayor, J., dissenting
“[w]hat matter[ed]” was “the religious function that [Perich]
per
formed” and her “functional status.” Hosanna-Tabor,
565 U. S., at 206 (opinion of Alito, J.). Today's Court yields
to the concurrence's view with identical rhetoric. “What
matters,” the Court echoes, “is what an employee does.”
Ante, at 753.
But this vague statement is no easier to comprehend today
than it was when the Court declined to adopt it eight years
ago. It certainly does not sound like a legal framework.
Rather, the Court insists that a “religious institution's expla-
nation of the role of [its] employees in the life of the religion
in question is important.” Ante, at 757; see also ante, at
762–763 (Thomas, J., concurring) (urging complete deference
to a religious institution in determining which employees are
exempt from antidiscrimination laws). But because the
Court's new standard prizes a functional importance that it
appears to deem churches in the best position to explain, one
cannot help but conclude that the Court has just traded legal
analysis for a rubber stamp.
3
Indeed, the Court reasons that “judges cannot be expected
to have a complete understanding and appreciation” of the
law and facts in ministerial-exception cases, ante, at 757, and
all but abandons judicial review. Although today's decision is
limited to certain “teachers of religion,” ante, at 757–759, its
reasoning risks rendering almost every Catholic parishioner
and parent in the Archdiocese of Los Angeles a Catholic min-
3
Elsewhere, the Court hints at a comparative inquiry, noting that Biel
and Morrissey-Berru were the school staff “entrusted most directly” with
“educating their students in the faith.” Ante, at 757. Setting aside the
Court's factual assumptions, one must ask: “[M]ost directly” compared to
what (or whom)? The Court does not say. Perhaps the Court means to
embrace the predominant Circuit approach, which looked at whether a
putative minister “serv[ed] primarily religious roles.” Hankins v. Lyght,
441 F. 3d 96, 117, 118, n. 13 (CA2 2006) (Sotomayor, J., dissenting) (identify-
ing seven Circuits); see also, e. g., Petruska v. Gannon University, 462
F. 3d 294, 304, n. 6, 307 (CA3 2006). But were that the case, the teachers
would have undoubtedly prevailed here.

774 OUR
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Sotomayor, J., dissenting
ister.
4
That
is, the Court's apparent deference here threat-
ens to make nearly anyone whom the schools might hire
“ministers” unprotected from discrimination in the hiring
process. That cannot be right. Although certain religious
functions may be important to a church, a person's perform-
ance of some of those functions does not mechanically trigger
a categorical exemption from generally applicable antidis-
crimination laws.
Today's decision thus invites the “potential for abuse”
against which courts of appeals have long warned. Scharon,
929 F. 2d, at 363, n. 3. Never mind that the Court renders
almost all of the Court's opinion in Hosanna-Tabor irrele-
vant. It risks allowing employers to decide for themselves
whether discrimination is actionable. Indeed, today's deci-
sion reframes the ministerial exception as broadly as it can,
without regard to the statutory exceptions tailored to pro-
tect religious practice. As a result, the Court absolves reli-
gious institutions of any animus completely irrelevant to
their religious beliefs or practices and all but forbids courts
to inquire further about whether the employee is in fact a
leader of the religion. Nothing in Hosanna-Tabor (or at
least its majority opinion) condones such judicial abdication.
III
Faithfully applying Hosanna-Tabor's approach and com-
mon sense confrms that the teachers here are not Catholic
“ministers” as a matter of law. This is especially so because
4
See, e. g., Archdiocese of Los Angeles, Administrative Handbook § 2.3.1
(“[P]arishioners are vital to parish life as volunteers. They participate as
catechists in religious education, organize youth ministry and adult events,
assist in charitable and social outreach activities in the community, and
serve as extraordinary ministers of the Eucharist, lectors, altar servers,
and ushers, as well as in other supporting ministerial roles”); Pope Fran-
cis, Post-Synodal Apostolic Exhortation on Love in the Family 13–14
(2016) (“The family is . . . the place where parents become their children's
frst teachers in the faith . . . . Parents have a serious responsibility for
this work of education”).

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Sotomayor, J., dissenting
the employers seek summary judgment, meaning the Court
must
“view the facts and draw reasonable inferences in the
light most favorable to” the teachers. Scott v. Harris, 550
U. S. 372, 378 (2007) (internal quotation marks omitted).
5
A
1
Respondent Kristen Biel was a teacher at St. James
School, a Catholic school in the Archdiocese of Los Angeles.
6
Biel initially served as a substitute teacher, teaching frst
grade two days a week. App. 248–249. At the end of the
2013 school year, the school hired Biel as a full-time ffth-
grade teacher. 911 F. 3d, at 605; App. 250.
Biel's employment contract identifed her position as just
that: “Grade 5 Teacher.” App. to Pet. for Cert. in No. 19–
348, p. 103a; App. 328–329. The contract referred to Biel
throughout as “teacher,” and directed her to the benefts
guide for “Lay Employees.” App. to Pet. for Cert. in
No. 19–348, at 105a; App. 320, 325, 327–329. The contract
also stated that Biel would work ``within [St. James's] over-
riding commitment'' to church ``doctrines, laws, and norms''
and would ``model, teach, and promote behavior in conform-
5
The Court maintains that the Court of Appeals erred by “in effect”
granting summary judgment to the teachers on the ministerial exception
instead of “remand[ing] for a trial.” Ante, at 738, n. 1. Yet today's deci-
sion commits the exact error it claims to diagnose: The Court views the
facts in the light most favorable to the schools and “in effect” grants sum-
mary judgment to the movants instead of remanding for a trial. As ex-
plained below, the Court is also wrong to assert that there is no material
fact genuinely in dispute. Compare ante, at 739, n. 1 (asserting that “nei-
ther party takes the position that any material fact is genuinely in dis-
pute”) with, e. g., Brief for Respondents 12–13, n. 4, 40–41 (taking the
position that material facts are genuinely in dispute).
6
Unlike the Court, I begin with Biel's case because it was the frst one
decided and the only one deemed precedential below. Biel passed away
last year, losing her life to the same cancer that allegedly lost her a job at
St. James. Biel's husband now represents her estate.

776 OUR
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Sotomayor, J., dissenting
ity to the teaching of the Roman Catholic Church.'' 911
F
. 3d, at 605 (internal quotation marks omitted). According
to the faculty handbook, all faculty (religion teachers or not)
``participate in the Church's mission'' of providing ``quality
Catholic education to . . . students, educating them in aca-
demic areas and in . . . Catholic faith and values.” Id., at
605–606 (internal quotation marks omitted). The faculty
handbook further instructs teachers to follow California's
public school curricular requirements. Id., at 606.
Although St. James School “recommended” that teachers
be Catholic, the school did not require it. App. 289. Nor
did the school require teachers to have experience, training,
or schooling in religious pedagogy. 911 F. 3d, at 605. Biel
had no such credentials when the school hired her, as she had
received her bachelor's degree in liberal arts and a teaching
credential from a public university. Ibid. Even after she
began working at St. James School, Biel's “only” training in
religious pedagogy was “a single half-day conference where
topics ranged from the incorporation of religious themes into
lesson plans to techniques for teaching art classes.” Ibid.;
see also App. 242–244, 261–263.
Biel taught her ffth-grade class all its academic subjects,
including English, spelling, reading, literature, mathematics,
science, and social studies. 911 F. 3d, at 605; Excerpts of
Record in No. 17–55180 (CA9), p. 588. This also involved a
standard religion curriculum, which Biel taught for about 30
minutes four days a week. 911 F. 3d, at 605. When teach-
ing religion, Biel followed instructions in a workbook that
the school administration had prescribed. Ibid.; App. 254–
255. Twice a day, Biel would pray with her students, but
she “did not lead them.” 911 F. 3d, at 605. Rather, the
class had student “prayer leaders” and “[t]he prayers that
were said in the classroom were said mostly by the stu-
dents.” App to Pet. for Cert. in No. 19–348, at 93a. As
Biel explained, she “didn't need to teach” her students any
prayers, either, because “[t]hey already kn[e]w them” and
“had prayer leaders.” Ibid.; contra, ante, at 760 (assert-

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Sotomayor, J., dissenting
ing without citation that Biel “taught [her students] pray-
ers”).
Once a month, Biel joined her students in the school's
multipurpose room for mass, which were always offciated by
a Catholic priest or a nun. App. 258. The record does not
show that Biel taught her students what to do at mass.
Ibid. Rather, Biel's “sole responsibility” during liturgy was
“to keep her class quiet and orderly.” 911 F. 3d, at 605; App.
258–259.
Near the end of the school year, Biel learned that she had
breast cancer and would need surgery and chemotherapy.
Biel informed the school and explained that her condition
would require her to take time off from work. 911 F. 3d, at
606; App. 266–269, 309. The school responded that she
would not be welcomed back. 911 F. 3d, at 606; App. 270–
273. At no point has St. James School suggested a religious
reason for terminating Biel's employment.
2
In 1998, after a 20-year career in newspaper advertising
and copywriting, respondent Ag nes Deirdre Morr issey-
Berru began working as a substitute teacher at Our Lady of
Guadalupe School, another Catholic school in Southern Cali-
fornia. App. to Pet. for Cert. in No. 19–267, p. 80a; App.
74. More recently, she taught ffth and sixth grade full time.
Id., at 73–75.
Each year, Morrissey-Berru signed an employment con-
tract with the school. Like Biel's contracts, these agree-
ments referred to Morrissey-Berru as “Teacher” and di-
rected her to the benefts guide for “Lay Employees.” Id.,
at 91–100, 127–164; App. to Pet. for Cert. in No. 19–267,
at 32a–42a. Notably, the faculty handbook promised not to
discriminate on the basis of any protected characteristic, in-
cluding “race,” “sex,” “disability,” or “age.” Excerpts of
Record in No. 17–56624 (CA9), p. 648.
“At no time” during her employment did Morrissey-Berru
“feel God was leading [her] to serve in the ministry,” nor did
she “believe [she] was accepting a formal . . . call to religious

778 OUR
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Sotomayor, J., dissenting
service by working at Our Lady of Guadalupe as a ffth and
sixth
grade teacher.” App. to Brief in Opposition in No. 19–
267, p. 2a. Morrissey-Berru, in fact, is not a practicing
Catholic. Ibid. Although Our Lady of Guadalupe School
“preferred” its teachers to be Catholic, there is a factual dis-
pute whether the school insisted on that prerequisite without
exception (and thus, for summary-judgment purposes, the
Court must assume there was no absolute requirement).
App. 110–111; Scott, 550 U. S., at 378. Nor did the school
require teachers to have any background or training in Cath-
olic pedagogy (or even religion). Morrissey-Berru had no
such credentials when the school hired her, as she held
a bachelor's degree in English language arts with a minor
in secondary education. App. 73–74. Many years after
Morrissey-Berru had begun teaching at the school, though,
the school did ask her to attend a catechist course on the
history of the Catholic Church. 769 Fed. Appx. 460, 461 (CA9
2019) (per curiam) (case below in No. 19–267); App. to
Pet. for Cert. in No. 19–267, at 85a. The record does not
disclose whether Morrissey-Berru ever completed the full
catechism-certifcation program, and in fact suggests that
she did not. E. g., Excerpts of Record in No. 17–56624, at
41–42, 44–45, 67.
Morrissey-Berru taught her class a range of subjects:
reading, writing, math, grammar, vocabulary, science, social
studies, and religion. App. 75. When teaching religion,
Morrissey-Berru followed the contents of a preselected
workbook. Id., at 79–80. Morrissey-Berru also “led her
students in daily prayer” and assisted with planning a
monthly mass. 769 Fed. Appx., at 461. But she did not re-
call “lead[ing her] students in any devotional exercises.”
App. to Pet. for Cert. in No. 19–267, at 89a.
In 2014, when Morrissey-Berru was in her sixties, the
school did not renew Morrissey-Berru's contract. Id., at
30a–31a. Like St. James, Our Lady of Guadalupe School
has neither cited nor asserted a religious reason for the
termination.

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Sotomayor, J., dissenting
B
On
these records, the Ninth Circuit correctly concluded
that neither school had shown that the ministerial exception
barred the teachers' claims for disability and age discrimina-
tion. At the very least, these cases should have proceeded
to trial. Viewed in the light most favorable to the teachers,
the facts do not entitle the employers to summary judgment.
First, and as the Ninth Circuit explained, neither school
publicly represented that either teacher was a Catholic spir-
itual leader or “minister.” Neither conferred a title refect-
ing such a position. Rather, the schools referred to both
Biel and Morrissey-Berru as “lay” teachers, which the courts
of appeals have long recognized as a mark of nonministerial,
as opposed to “ministerial,” status. See supra, at 768–769;
App. to Pet. for Cert. in No. 19–267, at 32a–42a; App. 91–100,
127–164, 244–246, 320–329.
In response, the Court worries that “attaching too much
signifcance to titles would risk privileging religious tradi-
tions with formal organizational structures over those that
are less formal.” Ante, at 753. That may or may not be
true, but it is irrelevant here. These cases are not about
“less formal” religions; they are about the Catholic Church
and its publicized and undisputedly “formal organizational
structur[e].” Ibid. After all, the right to free exercise has
historically “allow[ed] churches and other religious institu-
tions to defne” their own “membership” and internal “orga-
nization.” McConnell, The Origins and Historical Under-
standing of Free Exercise of Religion, 103 Harv. L. Rev.
1409, 1464–1465 (1990). But that freedom of choice should
carry consequences in litigation. And here, like the faith at
issue in Hosanna-Tabor, the Catholic Church uses formal
titles.
The Court then turns to irrelevant or disputed facts. The
Court notes, for example, that a religiously signifcant term
“rabbi” translates to “teacher,” ante, at 759, suggesting that
Biel's and Morrissey-Berru's positions as lay teachers con-
ferred religious titles after all. But that wordplay unravels

780 OUR
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Sotomayor, J., dissenting
when one imagines the Court's logic as applied to a math
or
gym or computer “teacher” at either school. The title
“teacher” does not convey ministerial status. Nor does the
Court gain purchase from the disputed fact that Biel and
Morrissey-Berru were “regarded as `catechists' ” “ `responsi-
ble for the faith formation of the[ir] students.' ” Ante, at
740, 759. For one thing, the Court discusses evidence from
only Morrissey-Berru's case (not Biel's).
7
For another, the
Court invokes the disputed deposition testimony of a school
administrator while ignoring record evidence refuting that
characterization and suggesting that Morrissey-Berru never
completed the full catechist training program. See, e. g.,
Excerpts of Record in No. 17–56624, at 41–42, 44–45, 67. Al-
though the Archdiocese does confer titles and holds a formal
“Catechist Commissioning ” every September, id., at 42, 45,
the record does not suggest that either teacher here was so
commissioned. In relying on disputed factual assertions,
the Court's blinkered approach completely disregards the
summary-judgment standard.
Second (and further undermining the schools' claims), nei-
ther teacher had a “signifcant degree of religious training ”
or under went a “for ma l process of commissi oni ng. ”
Hosanna-Tabor, 565 U. S., at 191; cf. Excerpts of Record
in No. 17–56624, at 42 (identifying similarly formal training
and commissioning process within the Catholic Church).
Nor did either school require such training or commissioning
as a prerequisite to gaining (or keeping) employment. In
Biel's case, the record refects that she attended a single con-
ference that lasted “four or fve hours,” briefy discussed
“how to incorporate God into . . . lesson plans,” and other-
7
In Biel's case, the Court cites a page from St. James School's “Staff
Guidelines and Responsibilities” setting out “ `expect[ations]' ” and a decla-
ration by the school principal about required attendance at a teacher con-
ference. See ante, at 759, n. 28. Neither shows as a matter of law that
Biel was a “catechist” or that formal religious training was a prerequisite
to her position. See in fra this page and 781.

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wise “showed [teachers] how to do art and make little pic-
tures
or things like that.” App. 262, 263. Notably, all ele-
mentary school faculty attended the conference, including
the computer teacher. Id., at 261–263. In turn, Our Lady
of Guadalupe did not ask Morrissey-Berru to undergo any
religious training for her frst 13 years of teaching, until it
asked her to attend the uncompleted program described
above. See id., at 76–77. This consideration instructs that
the teachers here did not fall within the ministerial exception.
Third, neither Biel nor Morrissey-Berru held herself out
as having a leadership role in the faith community. Neither
claimed any benefts (tax, governmental, ceremonial, or
administrative) available only to spir itua l leaders. Cf.
Hosanna-Tabor, 565 U. S., at 191–192. Nor does it matter
that all teachers signed contracts agreeing to model and im-
part Catholic values. This component of the Hosanna-
Tabor inquiry focuses on outward-facing behavior, and nei-
ther Biel nor Morrissey-Berru publicly represented herself
as anything more than a ffth-grade teacher. App. to Brief
in Opposition in No. 19–267, at 1a–2a; App. 249–250. The
Court does not grapple with this third component of
Hosanna-Tabor's inquiry, which seriously undermines the
schools' cases.
That leaves only the fourth consideration in Hosanna-
Tabo r: the teachers' func ti on. To be sure, Biel and
Morrissey-Berru taught religion for a part of some days in
the week. But that should not transform them auto-
matically into ministers who “guide” the faith “on its way.”
Hosanna-Tabor, 565 U. S., at 196; see also supra, at 767–769.
Although the Court does not resolve this functional question
with “a stopwatch,” it still considers the “amount of time an
employee spends on particular activities” in “assessing that
employee's status.” Hosanna-Tabor, 565 U. S., at 193–194.
Here, the time Biel and Morrissey-Berru spent on secular
instruction far surpassed their time teaching religion. For
the vast majority of class, they taught subjects like reading,

782 OUR
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Sotomayor, J., dissenting
writing, spelling, grammar, vocabulary, math, science, social
studies,
and geography. In so doing, both were like any
public school teacher in California, subject to the same state-
wide curriculum guidelines. 911 F. 3d, at 606. In other
words, both Biel and Morrissey-Berru had almost exclusively
secular duties, making it especially improper to deprive
them of all legal protection when their employers have not
offered any religious reason for the alleged discrimination.
Nor is it dispositive that both teachers prayed with their
students. Biel did not lead devotionals in her classroom, did
not teach prayers, and had a minor role in monitoring stu-
dent behavior during a once-a-month mass. App. 79, 252–
253, 256–259. Morrissey-Berru did lead classroom prayers,
bring her students to a cathedral once a year, direct the
school Easter play, and sign a contract directing her to “as-
sist with Liturgy Planning.” App. to Pet. for Cert. in
No. 19–267, at 42a, 68a–69a, 95a–96a. But these occasional
tasks should not trigger as a matter of law the ministerial
exception. Morrissey-Berru did not lead mass, deliver ser-
mons, or select hymns. Id., at 89a. And unlike the teacher
in Hosanna-Tabor, there is no evidence that Morrissey-
Berru led devotional exercises. App. to Pet. for Cert. in
No. 19–267, at 89a. Her limited religious role does not ft
Hosanna-Tabor's description of a “minister to the faithful.”
565 U. S., at 189.
Nevertheless, the Court insists that the teachers are min-
isters because “implicit in our decision in Hosanna-Tabor
was a recognition that educating young people in their faith,
inculcating its teachings, and training them to live their faith
are responsibilities that lie at the very core of the mission of
a private religious school.” Ante, at 753–754. But teaching
religion in school alone cannot dictate ministerial status. If
it did, then Hosanna-Tabor wasted precious pages discussing
titles, trai ni ng, and other objec tive indicia to exami ne
whether Cheryl Perich was a minister. Not surprisingly,
the Government made this same point earlier in Biel's case:
“If teaching religion to elementary school students for a half-

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783
Sotomayor, J., dissenting
hour each day, praying with them daily, and accompanying
them
to weekly or monthly religious services were suffcient
to establish a teacher as a minister of the church within
the meaning of the ministerial exception, the Supreme
Court would have had no need for most of its discussion
in Hosanna-Tabor.” Brief for EEOC as Amicus Curiae
in No. 17–55180 (CA9), p. 21. Rather, “the Court made
clear i n Hosann a-Tabo r that context matters. ” Ib i d.
Indeed.
8
Were there any doubt left about the proper result here,
recall that neither school has shown that it required its reli-
gion teachers to be Catholic. The Court does not explain
how the schools here can show, or have shown, that a
non-Catholic “personif[ies]” Catholicism or leads the faith.
Hosanna-Tabor, 565 U. S., at 188. Instead, the Court re-
marks that a “rigid” coreligionist requirement might “not
always be easy” to apply to faiths like Judaism or variations
of Protestantism. Ante, at 761. Perhaps. But that has
nothing to do with Catholicism.
Pause, for a moment, on the Court's conclusion: Even if the
teachers were not Catholic, and even if they were forbidden
to participate in the church's sacramental worship, they
would nonetheless be “ministers” of the Catholic faith simply
because of their supervisory role over students in a religious
school. That stretches the law and logic past their breaking
points. (Indeed, it is ironic that Our Lady of Guadalupe
School seeks complete immunity for age discrimination when
its teacher handbook promised not to discriminate on that
basis.) As the Government once put it, even when a school
has a “pervasively religious atmosphere,” its faculty are un-
likely ministers when “there is no requirement that its teach-
ers even be members of [its] religious denomination.” Brief
8
Although the Government supported Biel below, it has since switched
sides without explanation. Odder still, the Government's brief to this
Court faults the Ninth Circuit for having embraced the Government's
prior views. Compare Brief for EEOC as Amicus Curiae in No. 17–
55180 (CA9), p. 21, with Brief for United States as Amicus Curiae 16–17.

784 OUR
LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Sotomayor, J., dissenting
for Appellee in No. 84–2779 (CA9 1986), pp. 11, 29, n. 17. It
is
hard to imagine a more concrete example than these cases.
***
The Court's conclusion portends grave consequences. As
the Government (arguing for Biel at the time) explained to
the Ninth Circuit, “thousands of Catholic teachers” may
lose employment-law protections because of today's out-
come. Recordi ng of Ora l Arg. i n No. 17– 55180 (Ju ly
11, 2018), at 25:15 – 25:30, https://www.ca9.uscourts.gov/
media /view_video.php?pk_vid=0000014022. Other sources
tally over a hundred thousand secular teachers whose rights
are at risk. See, e. g., Brief for Virginia et al. as Amici Cu-
riae 33, n. 25. And that says nothing of the rights of count-
less coaches, camp counselors, nurses, social-service workers,
in-house lawyers, media-relations personnel, and many oth-
ers who work for religious institutions. All these employees
could be subject to discrimination for reasons completely ir-
relevant to their employers' religious tenets.
In expanding the ministerial exception far beyond its his-
toric narrowness, the Court overrides Congress' carefully
tailored exceptions for religious employers. Little if noth-
ing appears left of the statutory exemptions after today's
constitutional broadside. So long as the employer deter-
mines that an employee's “duties” are “vital” to “carrying
out the mission of the church,” ante, at 756–757, then today's
laissez-faire analysis appears to allow that employer to make
employment decisions because of a person's skin color, age,
disability, sex, or any other protected trait for reasons hav-
ing nothing to do with religion.
This sweeping result is profoundly unfair. The Court is not
only wrong on the facts, but its error also risks upending anti-
discrimination protections for many employees of religious
entities. Recently, this Court has lamented a perceived “dis-
crimination against religio[n].” E. g., Espinoza v. Montana
Dept. of Revenue, 591 U. S. 464, 478 (2020). Yet here it swings

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785
Sotomayor, J., dissenting
the pendulum in the extreme opposite direction, permitting
rel
igious entities to discriminate widely and with impunity
for reasons wholly divorced from religious beliefs. The in-
herent injustice in the Court's conclusion will be impossible
to ignore for long, particularly in a pluralistic society like
ours. One must hope that a decision deft enough to remold
Hosanna-Tabor to ft the result reached today refects the
Court's capacity to cabin the consequences tomorrow.
I respectfully dissent.

786 OCTOBER
TERM, 2019
Syllabus
TRUMP v. VANCE, DISTRICT ATTORNEY OF THE
COUNTY
OF NEW YORK, et al.
certiorari to the united states court of appeals for
the second circuit
No. 19–635. Argued May 12, 2020—Decided July 9, 2020
In 2019, the New York County District Attorney's Offce—acting on behalf
of a grand jury—served a subpoena duces tecum on Mazars USA, LLP,
the personal accounting frm of President Donald J. Trump, for fnancial
records relating to the President and his businesses. The President,
acting in his personal capacity, sued the district attorney and Mazars in
Federal District Court to enjoin enforcement of the subpoena, arguing
that a sitting President enjoys absolute immunity from state criminal
process under Article II and the Supremacy Clause. The District
Court dismissed the case under the abstention doctrine of Younger v.
Harris, 401 U. S. 37, and, in the alternative, held that the President was
not entitled to injunctive relief. The Second Circuit rejected the Dis-
trict Court's dismissal under Younger but agreed with the court's denial
of injunctive relief, concluding that presidential immunity did not bar
enforcement of the subpoena and rejecting the argument of the United
States as amicus curiae that a state grand jury subpoena seeking the
President's documents must satisfy a heightened showing of need.
Held: Article II and the Supremacy Clause do not categorically preclude,
or require a heightened standard for, the issuance of a state criminal
subpoena to a sitting President. Pp. 793–811.
(a) In 1807, John Marshall, presiding as Circuit Justice for Virginia
over the treason trial of Aaron Burr, granted Burr's motion for a sub-
poena duces tecum directed at President Jefferson. In rejecting the
prosecution's argument that a President was not subject to such a sub-
poena, Marshall held that a President does not “stand exempt” from the
Sixth Amendment's guarantee that the accused have compulsory proc-
ess for obtaining witnesses for their defense. United States v. Burr,
25 F. Cas. 30, 33–34. The sole argument for an exemption was that a
President's “duties as chief magistrate demand his whole time for na-
tional objects.” Id., at 34. But, in Marshall's assessment, those duties
were “not unremitting,” ibid., and any confict could be addressed by
the court upon return of the subpoena. Marshall also concluded that
the Sixth Amendment's guarantee extended to the production of papers.
“[T]he propriety of introducing any papers,” he explained, would “de-
pend on the character of the paper, not the character of the person who
holds it,” and would have “due consideration” upon the return of the

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787
Syllabus
subpoena. Id., at 34, 37. Jefferson agreed to furnish whatever justice
required,
subject to the prerogative to decide whether particular execu-
tive communications should be withheld.
In the two centuries since Burr, successive Presidents from Monroe
to Clinton have accepted Marshall's ruling that the Chief Executive is
subject to subpoena and have uniformly agreed to testify when called
in criminal proceedings.
In 1974, the question whether to compel the disclosure of offcial com-
munications over the President's objection came to a head when the
Watergate Special Prosecutor secured a subpoena duces tecum directing
President Nixon to produce, among other things, tape recordings of Oval
Offce meetings. This Court rejected Nixon's claim of an absolute privi-
lege of confdentiality for all presidential communications. Recognizing
that “compulsory process” was imperative for both the prosecution and
the defense, the Court held that the President's “generalized assertion
of privilege must yield to the demonstrated, specifc need for evidence
in a pending criminal trial.” United States v. Nixon, 418 U. S. 683, 713.
President Nixon dutifully released the tapes. Pp. 793–799.
(b) This history all involved federal criminal proceedings. Here, the
President claims that the Supremacy Clause gives a sitting President
absolute immunity from state criminal subpoenas because compliance
with such subpoenas would categorically impair the performance of his
Article II functions. The Solicitor General, arguing on behalf of the
United States, claims that a state grand jury subpoena for a sitting
President's personal records must, at the very least, meet a heightened
standard of need. Pp. 799–811.
(1) The President's unique duties as head of the Executive Branch
come with protections that safeguard his ability to perform his vital
functions. The Constitution also guarantees “the entire independence
of the General Government from any control by the respective States.”
Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232
U. S. 516, 521. Marshall's ruling in Burr, entrenched by 200 years of
practice and this Court's decision in Nixon, confrms that federal crimi-
nal subpoenas do not “rise to the level of constitutionally forbidden im-
pairment of the Executive's ability to perform its constitutionally man-
dated functions.” Clinton v. Jones, 520 U. S. 681, 702–703. But the
President claims that state criminal subpoenas necessarily pose a unique
threat of impairment and thus require absolute immunity. His categor-
ical argument focuses on three burdens: diversion, stigma, and harass-
ment. Pp. 799–807.
(i) The President contends that complying with state criminal sub-
poenas would necessarily distract the Chief Executive from his duties.
He grounds that concern on Nixon v. Fitzgerald, which recognized a
President's “absolute immunity from damages liability predicated on his

788 TR
UMP v. VANCE
Syllabus
offcial acts.” 457 U. S. 731, 749. But, contrary to the President's sug-
gesti
on, that case did not hold that distraction was suffcient to confer
absolute immunity. Indeed, the Court expressly rejected immunity
based on distraction alone 15 years later in Clinton v. Jones, when Pres-
ident Clinton sought absolute immunity from civil liability for private
acts. As the Court explained, Fitzgerald's “dominant concern” was not
mere distraction but the distortion of the Executive's “decisionmaking
process.” 520 U. S., at 694, n. 19. The prospect that a President may
become “preoccupied by pending litigation” did not ordinarily implicate
constitutional concerns. Id., at 705, n. 40. Two centuries of experience
likewise confrm that a properly tailored criminal subpoena will not nor-
mally hamper the performance of a President's constitutional duties.
The President claims this case is different. He believes that he is
under investigation and argues that the toll will necessarily be heavier
in that circumstance. But the President is not seeking immunity from
the diversion occasioned by the prospect of future criminal liability.
He concedes that he may be investigated while in offce. His objection
is instead limited to the additional distraction caused by the subpoena
itself. That argument, however, runs up against the 200 years of prece-
dent establishing that Presidents, and their offcial communications,
are subject to judicial process, see Burr, 25 F. Cas., at 34, even when
the President is under i nvestigati on, see Ni xo n, 418 U. S., at 706.
Pp. 801–803.
(ii) The President next claims that the stigma of being subpoe-
naed will undermine his leadership at home and abroad. But even if a
tarnished reputation were a cognizable impairment, there is nothing
inherently stigmatizing about a President performing “the citizen's nor-
mal duty of . . . furnishing information relevant” to a criminal investiga-
tion. Branzburg v. Hayes, 408 U. S. 665, 691. Nor can the risk of asso-
ciation with persons or activities under criminal investigation absolve a
President of such an important public duty. The consequences for a
President's public standing will likely increase if he is the one under in-
vestigation, but the President concedes that such investigations are
permitted under Article II and the Supremacy Clause. And the receipt
of a subpoena would not seem to categorically magnify the harm to the
President's reputation. Additionally, in the grand jury context long-
standing secrecy rules aim to prevent the very stigma the President
anticipates. Pp. 803–804.
(iii) Finally, the President argues that subjecting Presidents to
state criminal subpoenas will make them “easily identifable target[s]” for
harassment. Fitzgerald, 457 U. S., at 753. The Court rejected a nearly
identical argument in Clinton, concluding that the risk posed by harass-
ing civil litigation was not “serious” because federal courts have the

Cite
as: 591 U. S. 786 (2020)
789
Syllabus
tools to deter and dismiss vexatious lawsuits. 520 U. S., at 708. Har-
assi
ng state criminal subpoenas could, under certain circumstances,
threaten the independence or effectiveness of the Executive. But here
again the law already seeks to protect against such abuse. First, grand
juries are prohibited from engaging in “arbitrary fshing expeditions”
or initiating investigations “out of malice or an intent to harass,” United
States v. R. Enterprises, Inc., 498 U. S. 292, 299, and federal courts may
intervene in state proceedings that are motivated by or conducted in
bad faith. Second, because the Supremacy Clause prohibits state
judges and prosecutors from interfering with a President's offcial du-
ties, any effort to manipulate a President's policy decisions or to retali-
ate against a President for offcial acts through issuance of a subpoena
would be an unconstitutional attempt to “infuence” a superior sovereign
“exempt” from such obstacles, see McCulloch v. Maryland, 4 Wheat.
316, 417. And federal law allows a President to challenge any such
allegedly unconstitutional infuence in a federal forum. Pp. 804–807.
(2) A state grand jury subpoena seeking a President's private pa-
pers need not satisfy a heightened need standard, for three reasons.
First, although a President cannot be treated as an “ordinary individual”
when executive communications are sought, Burr teaches that, with re-
gard to private papers, a President stands in “nearly the same situation
with any other individual.” 25 F. Cas., at 191–192. Second, there has
been no showing here that heightened protection against state subpoe-
nas is necessary for the Executive to fulfll his Article II functions. Fi-
nally, absent a need to protect the Executive, the public interest in fair
and effective law enforcement cuts in favor of comprehensive access
to evidence.
Rejecting a heightened need standard does not leave Presidents with-
out recourse. A President may avail himself of the same protections
available to every other citizen, including the right to challenge the sub-
poena on any grounds permitted by state law, which usually include bad
faith and undue burden or breadth. When the President invokes such
protections, “[t]he high respect that is owed to the offce of the Chief
Executive . . . should inform the conduct of the entire proceeding, includ-
ing the timing and scope of discovery.” Clinton, 520 U. S., at 707. In
addition, a President can raise subpoena-specifc constitutional chal-
lenges in either a state or a federal forum. As noted above, he can
challenge the subpoena as an attempt to infuence the performance of
his offcial duties, in violation of the Supremacy Clause. And he can
argue that compliance with a particular subpoena would impede his con-
stitutional duties. Pp. 807–810.
941 F. 3d 631, affrmed and remanded.

790 TR
UMP v. VANCE
Syllabus
Roberts, C. J., delivered the opinion of the Court, in which Ginsburg,
B
reyer, Sotomayor, and Kagan, JJ., joined. Kavanaugh, J., fled an
opinion concurring in the judgment, in which Gorsuch, J., joined, post,
p. 811. Thomas, J., post, p. 815, and Alito, J., post, p. 825, fled dissent-
ing opinions.
Jay Alan Sekulow argued the cause for petitioner. With
him on the briefs were Stuart J. Roth, Jordan Sekulow, Wil-
liam S. Consovoy, and Patrick Strawbridge.
Solicitor General Francisco argued the cause for the
United States as amicus curiae urging reversal. With him
on the brief were Assistant Attorney General Hunt, Deputy
Solicitor General Wall, Deputy Assistant Attorney General
Mooppan, Vivek Suri, Mark R. Freeman, and Gerard J.
Sinzdak.
Carey R. Dunne argued the cause for respondents. With
him on the brief were Christopher Conroy, Solomon B.
Shinerock, James H. Graham, Sarah Walsh, Allen J. Vickey,
Caitlin Halligan, and Walter Dellinger.*
*Briefs of amici curiae urging reversal were fled for the Christian
Family Coalition Florida, Inc., by Dennis Grossman; and for the Eagle
Forum Education & Legal Defense Fund by Lawrence J. Joseph.
Briefs of amici curiae urging affrmance were fled for the Common-
wealth of Virginia et al. by Mark R. Herring, Attorney General of Vir-
ginia, Victoria N. Pearson, Deputy Attorney General, Toby J. Heytens,
Solicitor General, Martine E. Cicconi and Michelle S. Kallen, Deputy
Solicitors General, and Jessica Merry Samuels, Assistant Attorney Gen-
eral, and by the Attorneys General for their respective jurisdictions as
follows: Xavier Becerra of California, William Tong of Connecticut, Kath-
leen Jennings of Delaware, Karl A. Racine of the District of Columbia,
Clare E. Connors of Hawaii, Kwame Raoul of Illinois, Brian E. Frosh of
Maryland, Maura Healey of Massachusetts, Dana Nessel of Michigan,
Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Gurbir Singh
Grewal of New Jersey, Hector Balderas of New Mexico, Ellen F. Rosen-
blum of Oregon, and Bob Ferguson of Washington; for the American Civil
Liberties Union et al. by David D. Cole, Steven R. Shapiro, Jennesa Calvo-
Friedman, Arthur Eisenberg, and Christopher Dunn; for the Electronic
Privacy Information Center et al. by Marc Rotenberg and Alan Butler; for
Former Department of Justice Offcials by Elizabeth B. Wydra, Brianne
J. Gorod, and Ashwin P. Phatak; for Former Republican Members of Con-

Cite
as: 591 U. S. 786 (2020)
791
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
In our judicial system, “the public has a right to every
man's evidence.”
1
Since the earliest days of the Republic,
“every man” has included the President of the United States.
Beginning with Jefferson and carrying on through Clinton,
Presidents have uniformly testifed or produced documents
in criminal proceedings when called upon by federal courts.
This case involves—so far as we and the parties can tell—the
frst state criminal subpoena directed to a President. The
President contends that the subpoena is unenforceable. We
granted certiorari to decide whether Article II and the Su-
premacy Clause categorically preclude, or require a height-
ened standard for, the issuance of a state criminal subpoena
to a sitting President.
I
In the summer of 2018, the New York County District At-
torney's Offce opened an investigation into what it opaquely
describes as “business transactions involving multiple indi-
viduals whose conduct may have violated state law.” Brief
for Respondent Vance 2. A year later, the offce—acting on
behalf of a grand jury—served a subpoena duces tecum (es-
sentially a request to produce evidence) on Mazars USA,
LLP, the personal accounting frm of President Donald J.
Trump. The subpoena directed Mazars to produce fnancial
records relating to the President and business organizations
gress et al. by Jamila G. Benkato, Cameron O. Kistler, Justin Florence,
Benjamin L. Berwick, and Steven A. Hirsch; and for Washington State
Tax Practitioners by Dirk Giseburt, pro se, and for Sean J. Kealy et al. by
James J. Wheaton and Mr. Kealy, both pro se.
Briefs of amici curiae were fled for David Boyle by Mr. Boyle, pro se;
for Claire Finklestein et al. by Richard W. Painter; and for Eugene H.
Goldberg by Mr. Goldberg, pro se.
1
This maxim traces at least as far back as Lord Chancellor Hardwicke,
in a 1742 parliamentary debate. See 12 Parliamentary History of Eng-
land 693 (1812).

792 TR
UMP v. VANCE
Opinion of the Court
affliated with him, including “[t]ax returns and related
schedu
les,” from “2011 to the present.” App. to Pet. for
Cert. 119a.
2
The President, acting in his personal capacity, sued the
district attorney and Mazars in Federal District Court to
enjoin enforcement of the subpoena. He argued that, under
Article II and the Supremacy Clause, a sitting President
enjoys absolute immunity from state criminal process. He
asked the court to issue a “declaratory judgment that the
subpoena is invalid and unenforceable while the President
is in offce” and to permanently enjoin the district attor-
ney “from taking any action to enforce the subpoena.”
Amended Complaint in No. 1:19–cv–8694 (SDNY, Sept. 25,
2019), p. 19. Mazars, concluding that the dispute was be-
tween the President and the district attorney, took no posi-
tion on the legal issues raised by the President.
The District Court abstained from exercising jurisdiction
and dismissed the case based on Younger v. Harris, 401 U. S.
37 (1971), which generally precludes federal courts from
intervening in ongoing state criminal prosecutions. 395
F. Supp. 3d 283, 290 (SDNY 2019). In an alternative hold-
ing, the court ruled that the President was not entitled to
injunctive relief. Ibid.
The Second Circuit met the District Court halfway. As
to the dismissal, the Court of Appeals held that Younger ab-
stention was inappropriate because that doctrine's core justi-
fcation—“preventing friction” between States and the Fed-
eral Government—is diminished when state and federal
actors are already in confict, as the district attorney and the
President were. 941 F. 3d 631, 637, 639 (2019).
2
The grand jury subpoena essentially copied a subpoena issued to Ma-
zars in April 2019 by the Committee on Oversight and Reform of the U. S.
House of Representatives, which is at issue in Trump v. Mazars USA,
LLP, 591 U. S. 848 (2020). The principal difference is that the instant
subpoena expressly requests tax returns.

Cite
as: 591 U. S. 786 (2020)
793
Opinion of the Court
On the merits, the Court of Appeals agreed with the Dis-
tr
ict Court's denial of a preliminary injunction. Drawing on
the 200-year history of Presidents being subject to federal
judicial process, the Court of Appeals concluded that “presi-
dential immunity does not bar the enforcement of a state
grand jury subpoena directing a third party to produce non-
privileged material, even when the subject matter under in-
vestigation pertains to the President.” Id., at 640. It also
rejected the argument raised by the United States as ami-
cus curiae that a state grand jury subpoena must satisfy a
heightened showing of need. The court reasoned that the
proposed test, derived from cases addressing privileged Ex-
ecutive Branch communications, “ha[d] little bearing on a
subpoena” seeking “information relating solely to the Presi-
dent in his private capacity and disconnected from the dis-
charge of his constitutional obligations.” Id., at 645–646.
We granted certiorari. 589 U. S. 1120 (2019).
II
In the summer of 1807, all eyes were on Richmond, Vir-
ginia. Aaron Burr, the former Vice President, was on trial
for treason.
3
Fallen from political grace after his fatal duel
with Alexander Hamilton, and with a murder charge pending
in New Jersey, Burr followed the path of many down-and-
out Americans of his day—he headed West in search of new
opportunity. But Burr was a man with outsized ambitions.
Together with General James Wilkinson, the Governor of the
Louisiana Territory, he hatched a plan to establish a new
territory in Mexico, then controlled by Spain.
4
Both men
3
See generally N. Isenberg, Fallen Founder: The Life of Aaron Burr
271–365 (2007); J. Smith, John Marshall: Defner of a Nation 348–374 (1996);
M. Lomask, Aaron Burr: The Conspiracy and Years of Exile, 1805–1836,
pp. 222–298 (1982).
4
Wilkinson was secretly being paid by Spain for information and infu-
ence. In the wake of Burr's trial, he was investigated by Congress and

794 TR
UMP v. VANCE
Opinion of the Court
anticipated that war between the United States and Spain
was
imminent, and when it broke out they intended to invade
Spanish territory at the head of a private army.
But while Burr was rallying allies to his cause, tensions
with Spain eased and rumors began to swirl that Burr was
conspiring to detach States by the Allegheny Mountains
from the Union. Wary of being exposed as the principal co-
conspirator, Wilkinson took steps to ensure that any blame
would fall on Burr. He sent a series of letters to President
Jefferson accusing Burr of plotting to attack New Orleans
and revolutionize the Louisiana Territory.
Jefferson, who despised his former running mate Burr for
trying to steal the 1800 presidential election from him, was
predisposed to credit Wilkinson's version of events. The
President sent a special message to Congress identifying
Burr as the “prime mover” in a plot “against the peace and
safety of the Union.” 16 Annals of Cong. 39–40 (1807). Ac-
cording to Jefferson, Burr contemplated either the “sever-
ance of the Union” or an attack on Spanish territory. Id.,
at 41. Jefferson acknowledged that his sources contained a
“mixture of rumors, conjectures, and suspicions” but, citing
Wilkinson's letters, he assured Congress that Burr's guilt
was “beyond question.” Id., at 39–40.
The trial that followed was “the greatest spectacle in the
short history of the republic,” complete with a Founder-
studded cast. N. Isenberg, Fallen Founder: The Life of
Aaron Burr 351 (2007). People focked to Richmond to
watch, massing in tents and covered wagons along the banks
of the James River, nearly doubling the town's population of
5,000. Burr's defense team included Edmund Randolph and
Luther Martin, both former delegates at the Constitutional
Convention and renowned advocates. Chief Justice John
Marshall, who had recently squared off with the Jefferson
administration in Marbury v. Madison, 1 Cranch 137 (1803),
later court-martialed. But he was acquitted for want of evidence, and his
duplicity was not confrmed until decades after his death, when Spanish
archival material came to light.

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as: 591 U. S. 786 (2020)
795
Opinion of the Court
presided as Circuit Justice for Virginia. Meanwhile Jeffer-
son,
intent on conviction, orchestrated the prosecution from
afar, dedicating Cabinet meetings to the case, peppering the
prosecutors with directions, and spending nearly $100,000
from the Treasury on the fve-month proceedings.
In the lead-up to trial, Burr, taking aim at his accusers,
moved for a subpoena duces tecum directed at Jefferson.
The draft subpoena required the President to produce an
October 21, 1806 letter from Wilkinson and accompanying
documents, which Jefferson had referenced in his message to
Congress. The prosecution opposed the request, arguing
that a President could not be subjected to such a subpoena
and that the letter might contain state secrets. Following
four days of argument, Marshall announced his ruling to a
packed chamber.
The President, Marshall declared, does not “stand exempt
from the general provisions of the constitution” or, in partic-
ular, the Sixth Amendment's guarantee that those accused
have compulsory process for obtaining witnesses for their
defense. Un i ted Sta tes v. Bur r, 25 F. Cas. 30, 33 – 34
(No. 14,692d) (CC Va. 1807). At common law the “single res-
ervation” to the duty to testify in response to a subpoena
was “the case of the king,” whose “dignity” was seen as “in-
compatible” with appearing “under the process of the court.”
Id., at 34. But, as Marshall explained, a king is born to
power and can “do no wrong.” Ibid. The President, by
contrast, is “of the people” and subject to the law. Ibid.
According to Marshall, the sole argument for exempting the
President from testimonial obligations was that his “duties
as chief magistrate demand his whole time for national ob-
jects.” Ibid. But, in Marshall's assessment, those demands
were “not unremitting.” Ibid. And should the President's
duties preclude his attendance at a particular time and place,
a court could work that out upon return of the subpoena.
Ibid.
Marshall also rejected the prosecution's argument that the
President was immune from a subpoena duces tecum because

796 TR
UMP v. VANCE
Opinion of the Court
executive papers might contain state secrets. “A subpoena
duces
tecum,” he said, “may issue to any person to whom an
ordinary subpoena may issue.” Ibid. As he explained, no
“fair construction” of the Constitution supported the conclu-
sion that the right “to compel the attendance of witnesses[ ]
does not extend” to requiring those witnesses to “bring[ ]
with them such papers as may be material in the defence.”
Id., at 35. And, as a matter of basic fairness, permitting
such information to be withheld would “tarnish the reputa-
tion of the court.” Id., at 37. As for “[t]he propriety of
introducing any paper[s],” that would “depend on the charac-
ter of the paper, not on the character of the person who holds
it.” Id., at 34. Marshall acknowledged that the papers
sought by Burr could contain information “the disclosure of
which would endanger the public safety,” but stated that,
again, such concerns would have “due consideration” upon
the return of the subpoena. Id., at 37.
While the arguments unfolded, Jefferson, who had re-
ceived word of the motion, wrote to the prosecutor indicating
that he would—subject to the prerogative to decide which
executive communications should be withheld—“furnish on
all occasions, whatever the purposes of justice may require.”
Letter from T. Jefferson to G. Hay (June 12, 1807), in 10
Works of Thomas Jefferson 398, n. (P. Ford ed. 1905). His
“personal attendance,” however, was out of the question, for
it “would leave the nation without” the “sole branch which
the constitution requires to be always in function.” Letter
from T. Jefferson to G. Hay (June 17, 1807), in id., at 400–
401, n.
Before Burr received the subpoenaed documents, Marshall
rejected the prosecution's core legal theory for treason and
Burr was accordingly acquitted. Jefferson, however, was
not done. Committed to salvaging a conviction, he directed
the prosecutors to proceed with a misdemeanor (yes, misde-
meanor) charge for inciting war against Spain. Burr then
renewed his request for Wilkinson's October 21 letter, which

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he later received a copy of, and subpoenaed a second letter,
dated
November 12, 1806, which the prosecutor claimed was
privileged. Acknowledging that the President may with-
hold information to protect public safety, Marshall instructed
that Jefferson should “state the particular reasons” for with-
holding the letter. United States v. Burr, 25 F. Cas. 187, 192
(No. 14,694) (CC Va. 1807). The court, paying “all proper
respect” to those reasons, would then decide whether to com-
pel disclosure. Ibid. But that decision was averted when
the misdemeanor trial was cut short after it became clear
that the prosecution lacked the evidence to convict.
In the two centuries since the Burr trial, successive Presi-
dents have accepted Marshall's ruling that the Chief Execu-
tive is subject to subpoena. In 1818, President Monroe re-
ceived a subpoena to testify in a court-martial against one of
his appointees. See Rotunda, Presidents and Ex-Presidents
as Witnesses: A Brief Historical Footnote, 1975 U. Ill. L.
Forum 1, 5. His Attorney General, William Wirt—who had
served as a prosecutor during Burr's trial—advised Monroe
that, per Marshall's ruling, a subpoena to testify may “be
properly awarded to the President.” Id., at 5–6. Monroe
offered to sit for a deposition and ultimately submitted an-
swers to written interrogatories.
Following Monroe's lead, his successors have uniformly
agreed to testify when called in criminal proceedings, pro-
vided they could do so at a time and place of their choosing.
In 1875, President Grant submitted to a three-hour deposi-
tion in the criminal prosecution of a political appointee em-
broiled in a network of tax-evading whiskey distillers. See
1 R. Rotunda & J. Nowak, Constitutional Law § 7.1(b)(ii),
p. 996 (5th ed. 2012) (Rotunda & Nowak). A century later,
President Ford's attempted assassin subpoenaed him to tes-
tify in her defense. See United States v. Fromme, 405
F. Supp. 578 (ED Cal. 1975). Ford obliged—from a safe dis-
tance—in the frst videotaped deposition of a President.
President Carter testifed via the same means in the trial of

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two local offcials who, while Carter was Governor of Geor-
g
ia, had offered to contribute to his campaign in exchange for
advance warning of any state gambling raids. See Carter's
Testimony, on Videotape, Is Given to Georgia Gambling
Trial, N. Y. Times, Apr. 20, 1978, p. A20 (Carter recounted
that he “rejected the proposition instantly.”). Two years
later, Carter gave videotaped testimony to a federal grand
jury investigating whether a fugitive fnancier had entreated
the White House to quash his extradition proceedings. See
Rotunda & Nowak § 7.1(b)(vi), at 997. President Clinton tes-
tifed three times, twice via deposition pursuant to subpoe-
nas in federal criminal trials of associates implicated during
the Whitewater investigation, and once by video for a grand
jury investigating possible perjury. See id., § 7.1(c)(viii), at
1007–1008.
The bookend to Marshall's ruling came in 1974 when the
question he never had to decide—whether to compel the dis-
closure of offcial communications over the objection of the
President—came to a head. That spring, the Special Prose-
cutor appointed to investigate the break-in of the Democratic
National Committee Headquarters at the Watergate complex
fled an indictment charging seven defendants associated
with President Nixon and naming Nixon as an unindicted
co-conspirator. As the case moved toward trial, the Special
Prosecutor secured a subpoena duces tecum directing Nixon
to produce, among other things, tape recordings of Oval Of-
fce meetings. Nixon moved to quash the subpoena, claim-
ing that the Constitution provides an absolute privilege
of confdentiality to all presidential communications. This
Court rejected that argument in United States v. Nixon, 418
U. S. 683 (1974), a decision we later described as “unequivo-
cally and emphatically endors[ing] Marshall's” holding that
Presidents are subject to subpoena. Clinton v. Jones, 520
U. S. 681, 704 (1997).
The Nixon Court readily acknowledged the importance of
preserving the confdentiality of communications “between
high Government offcials and those who advise and assist

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them.” 418 U. S., at 705. “Human experience,” the Court
explai
ned, “teaches that those who expect public dissemina-
tion of their remarks may well temper candor with a concern
for appearances and for their own interests to the detriment
of the decisionmaking process.” Ibid. Confdentiality thus
promoted the “public interest in candid, objective, and even
blunt or harsh opinions in Presidential decisionmaking.”
Id., at 708.
But, like Marshall two centuries prior, the Court recog-
nized the countervailing interests at stake. Invoking the
common law maxim that “the public has a right to every
man's evidence,” the Court observed that the public interest
in fair and accurate judicial proceedings is at its height in the
criminal setting, where our common commitment to justice
demands that “guilt shall not escape” nor “innocence suffer.”
Id., at 709 (internal quotation marks and alteration omitted).
Because these dual aims would be “defeated if judgments”
were “founded on a partial or speculative presentation of the
facts,” the Nixon Court recognized that it was “imperative”
that “compulsory process be available for the production of
evidence needed either by the prosecution or the defense.”
Ibid.
The Court thus concluded that the President's “general-
ized assertion of privilege must yield to the demonstrated,
specifc need for evidence in a pending criminal trial.” Id.,
at 713. Two weeks later, President Nixon dutifully released
the tapes.
III
The history surveyed above all involved federal criminal
proceedings. Here we are confronted for the frst time with
a subpoena issued to the President by a local grand jury op-
erating under the supervision of a state court.
5
5
While the subpoena was directed to the President's accounting frm,
the parties agree that the papers at issue belong to the President and that
Mazars is merely the custodian. Thus, for purposes of immunity, it is
functionally a subpoena issued to the President.

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In the President's view, that distinction makes all the
di
fference. He argues that the Supremacy Clause gives a
sitting President absolute immunity from state criminal sub-
poenas because compliance with those subpoenas would cate-
gorically impair a President's performance of his Article II
functions. The Solicitor General, arguing on behalf of the
United States, agrees with much of the President's reasoning
but does not commit to his bottom line. Instead, the Solici-
tor General urges us to resolve this case by holding that a
state grand jury subpoena for a sitting President's personal
records must, at the very least, “satisfy a heightened stand-
ard of need,” which the Solicitor General contends was not
met here. Brief for United States as Amicus Curiae 26, 29.
A
We begin with the question of absolute immunity. No one
doubts that Article II guarantees the independence of the
Executive Branch. As the head of that branch, the Presi-
dent “occupies a unique positi on i n the constituti ona l
scheme.” Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982).
His duties, which range from faithfully executing the laws to
commanding the Armed Forces, are of unrivaled gravity and
breadth. Quite appropriately, those duties come with pro-
tections that safeguard the President's ability to perform his
vital functions. See, e. g., ibid. (concluding that the Presi-
dent enjoys “absolute immunity from damages liability pred-
icated on his offcial acts”); Nixon, 418 U. S., at 708 (recog-
nizing that presidential communications are presumptively
privileged).
In addition, the Constitution guarantees “the entire inde-
pendence of the General Government from any control by
the respective States.” Farmers and Mechanics Sav. Bank
of Minneapolis v. Minnesota, 232 U. S. 516, 521 (1914). As
we have often repeated, “States have no power . . . to retard,
impede, burden, or in any manner control, the operations of
the constitutional laws enacted by Congress.” McCulloch

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v. Maryland, 4 Wheat. 316, 436 (1819). It follows that
St
ates also lack the power to impede the President's execu-
tion of those laws.
Marshall's ruling in Burr, entrenched by 200 years of prac-
tice and our decision in Nixon, confrms that federal criminal
subpoenas do not “rise to the level of constitutionally forbid-
den impairment of the Executive's ability to perform its con-
stitutionally mandated functions.” Clinton, 520 U. S., at
702–703. But the President, joined in part by the Solicitor
General, argues that state criminal subpoenas pose a unique
threat of impairment and thus demand greater protection.
To be clear, the President does not contend here that this
subpoena, in particular, is impermissibly burdensome. In-
stead he makes a categorical argument about the burdens
generally associated with state criminal subpoenas, focusing
on three: diversion, stigma, and harassment. We address
each in turn.
1
The President's primary contention, which the Solicitor
General supports, is that complying with state criminal sub-
poenas would necessarily divert the Chief Executive from
his duties. He grounds that concern in Nixon v. Fitzgerald,
which recognized a President's “absolute immunity from
damages liability predicated on his offcial acts.” 457 U. S.,
at 749. In explaining the basis for that immunity, this Court
observed that the prospect of such liability could “distract a
President from his public duties, to the detriment of not only
the President and his offce but also the Nation that the
Presidency was designed to serve.” Id., at 753. The Presi-
dent contends that the diversion occasioned by a state crimi-
nal subpoena imposes an equally intolerable burden on a
President's ability to perform his Article II functions.
But Fitzgerald did not hold that distraction was suffcient
to confer absolute immunity. We instead drew a careful
analogy to the common law absolute immunity of judges and
prosecutors, concluding that a President, like those offcials,

802 TR
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must “deal fearlessly and impartially with the duties of his
offce”—not
be made “unduly cautious in the discharge of
[those] duties” by the prospect of civil liability for offcial
acts. Id., at 751–752, and n. 32 (internal quotation marks
omitted). Indeed, we expressly rejected immunity based on
distraction alone 15 years later in Clinton v. Jones. There,
President Clinton argued that the risk of being “distracted
by the need to participate in litigation” entitled a sitting
President to absolute immunity from civil liability, not just
for offcial acts, as in Fitzgerald, but for private conduct as
well. 520 U. S., at 694, n. 19. We disagreed with that ra-
tionale, explaining that the “dominant concern” in Fitzgerald
was not mere distraction but the distortion of the Execu-
tive's “decisionmaking process” with respect to offcial acts
that would stem from “worry as to the possibility of dam-
ages.” 520 U. S., at 694, n. 19. The Court recognized that
Presidents constantly face myriad demands on their atten-
tion, “some private, some political, and some as a result of
offcial duty.” Id., at 705, n. 40. But, the Court concluded,
“[w]hile such distractions may be vexing to those subjected
to them, they do not ordinarily implicate constitutional . . .
concerns.” Ibid.
The same is true of criminal subpoenas. Just as a “prop-
erly managed” civil suit is generally “unlikely to occupy any
substantial amount of ” a President's time or attention, id.,
at 702, two centuries of experience confrm that a properly
tailored criminal subpoena will not normally hamper the per-
formance of the President's constitutional duties. If any-
thing, we expect that in the mine run of cases, where a Presi-
dent is subpoenaed during a proceeding targeting someone
else, as Jefferson was, the burden on a President will ordi-
narily be lighter than the burden of defending against a
civil suit.
The President, however, believes the district attorney is
investigating him and his businesses. In such a situation,
he contends, the “toll that criminal process . . . exacts from

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the President is even heavier” than the distraction at issue in
Fi
tzgerald and Clinton, because “criminal litigation” poses
unique burdens on the President's time and will generate a
“considerable if not overwhelming degree of mental preoccu-
pation.” Brief for Petitioner 16–18, 30 (internal quotation
marks omitted).
But the President is not seeking immunity from the diver-
sion occasioned by the prospect of future criminal liability.
Instead he concedes—consistent with the position of the De-
partment of Justice—that state grand juries are free to in-
vestigate a sitting President with an eye toward charging
him after the completion of his term. See Reply Brief 19
(citing Memorandum from Randolph D. Moss, Assistant Atty.
Gen., Offce of Legal Counsel, to the Atty. Gen.: A Sitting
President's Amenability to Indictment and Criminal Prose-
cution, 24 Op. OLC 222, 257, n. 36 (Oct. 16, 2000)). The Pres-
ident's objection therefore must be limited to the additional
distraction caused by the subpoena itself. But that argu-
ment runs up against the 200 years of precedent establishing
that Presidents, and their offcial communications, are sub-
ject to judicial process, see Burr, 25 F. Cas., at 34, even when
the President is under investigation, see Nixon, 418 U. S.,
at 706.
2
The President next claims that the stigma of being subpoe-
naed will undermine his leadership at home and abroad.
Notably, the Solicitor General does not endorse this argu-
ment, perhaps because we have twice denied absolute immu-
nity claims by Presidents in cases involving allegations of
serious misconduct. See Clinton, 520 U. S., at 685; Nixon,
418 U. S., at 687. But even if a tarnished reputation were a
cognizable impairment, there is nothing inherently stigma-
tizing about a President performing “the citizen's normal
duty of . . . furnishing information relevant” to a criminal
investigation. Branzburg v. Hayes, 408 U. S. 665, 691 (1972).
Nor can we accept that the risk of association with persons

804 TR
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Opinion of the Court
or activities under criminal investigation can absolve a Presi-
dent
of such an important public duty. Prior Presidents
have weathered these associations in federal cases, supra, at
795–799, and there is no reason to think any attendant noto-
riety is necessarily greater in state court proceedings.
To be sure, the consequences for a President's public
standing will likely increase if he is the one under investiga-
tion. But, again, the President concedes that such investi-
gations are permitted under Article II and the Supremacy
Clause, and receipt of a subpoena would not seem to categor-
ically magnify the harm to the President's reputation.
Additionally, while the current suit has cast the Mazars
subpoena into the spotlight, longstanding rules of grand jury
secrecy aim to prevent the very stigma the President antici-
pates. See S. Beale et al., Grand Jury Law and Practice
§ 5:1, p. 5–3 (2d ed. 2018) (“[T]he federal system and most
states have adopted statutes or court rules” that “impose
sharp restrictions on the extent to which matters occurring
before a grand jury may be divulged” to outside persons.).
Of course, disclosure restr icti ons are not perfect. See
Nixon, 418 U. S., at 687, n. 4 (observing that news media
repor ting made the protective order sh ielding the fact
that the President had been named as an unindicted co-
conspirator “no longer meaningful”). But those who make
unauthorized disclosures regarding a grand jury subpoena do
so at their peril. See, e. g., N. Y. Penal Law Ann. § 215.70
(West 2010) (designating unlawful grand jury disclosure as
a felony).
3
Finally, the President and the Solicitor General warn that
subjecting Presidents to state criminal subpoenas will make
them “easily identifable target[s]” for harassment. Fitzger-
ald, 457 U. S., at 753. But we rejected a nearly identical
argument in Clinton, where then-President Clinton argued
that permitting civil liability for unoffcial acts would “gener-
ate a large volume of politically motivated harassing and

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frivolous litigation.” Clinton, 520 U. S., at 708. The Presi-
dent
and the Solicitor General nevertheless argue that state
criminal subpoenas pose a heightened risk and could under-
mine the President's ability to “deal fearlessly and impar-
tially” with the States. Fitzgerald, 457 U. S., at 752 (inter-
nal quotation marks omitted). They caution that, while
federal prosecutors are accountable to and removable by the
President, the 2,300 district attorneys in this country are
responsive to local constituencies, local interests, and local
prejudices, and might “use criminal process to register their
dissatisfaction with” the President. Brief for Petitioner 16.
What is more, we are told, the state courts supervising local
grand juries may not exhibit the same respect that federal
courts show to the President as a coordinate branch of
Government.
We recognize, as does the district attorney, that harassing
subpoenas could, under certain circumstances, threaten the
independence or effectiveness of the Executive. See Tr. of
Oral Arg. 73. Even so, in Clinton we found that the risk of
harassment was not “serious” because federal courts have
the tools to deter and, where necessary, dismiss vexatious
civil suits. 520 U. S., at 708. And, while we cannot ignore
the possibility that state prosecutors may have political moti-
vations, see post, at 839 (Alito, J., dissenting), here again
the law already seeks to protect against the predicted abuse.
First, grand juries are prohibited from engaging in “arbi-
trary fshing expeditions” and initiating investigations “out
of malice or an intent to harass.” United States v. R. Enter-
prises, Inc., 498 U. S. 292, 299 (1991). See also, e. g., Virag
v. Hynes, 54 N. Y. 2d 437, 442–443, 430 N. E. 2d 1249, 1252
(1981) (recognizing that grand jury subpoenas can be “chal-
lenged by an affrmative showing of impropriety,” including
“bad faith” (internal quotation marks omitted)). These pro-
tections, as the district attorney himself puts it, “apply with
special force to a President, in light of the offce's unique
position as the head of the Executive Branch.” Brief for

806 TR
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Respondent Vance 43. And, in the event of such harass-
ment,
a President would be entitled to the protection of fed-
eral courts. The policy against federal interference in state
criminal proceedings, while strong, allows “intervention in
those cases where the District Court properly fnds that the
state proceeding is motivated by a desire to harass or is con-
ducted in bad faith.” Huffman v. Pursue, Ltd., 420 U. S.
592, 611 (1975).
Second, contrary to Justice Alito's characterization, our
holding does not allow States to “run roughshod over the
functioning of [the Executive B]ranch.” Post, at 846. The
Supremacy Clause prohibits state judges and prosecutors
from interfering with a President's offcial duties. See, e. g.,
Tennessee v. Davis, 100 U. S. 257, 263 (1880) (“No State gov-
ernment can . . . obstruct [the] authorized offcers” of the
Federal Government.). Any effort to manipulate a Presi-
dent's policy decisions or to “retaliat[e]” against a President
for offcial acts through issuance of a subpoena, Brief for Re-
spondent Vance 15, 43, would thus be an unconstitutional at-
tempt to “infuence” a superior sovereign “exempt” from
such obstacles, see McCulloch, 4 Wheat., at 427. We gener-
ally “assume[ ] that state courts and prosecutors will observe
constitutional limitations.” Dombrowski v. Pfster, 380 U. S.
479, 484 (1965). Failing that, federal law allows a President
to challenge any allegedly unconstitutional infuence in a fed-
eral forum, as the President has done here. See 42 U. S. C.
§ 1983; Ex parte Young, 209 U. S. 123, 155–156 (1908) (holding
that federal courts may enjoin state offcials to conform their
conduct to federal law).
Given these safeguards and the Court's precedents, we
cannot conclude that absolute immunity is necessary or ap-
propriate under Article II or the Supremacy Clause. Our
dissenting colleagues agree. Justice Thomas reaches the
same conclusion based on the original understanding of the
Constitution refected in Marshall's decision in Burr. Post,
at 816, 818–819. And Justice Alito, also persuaded by

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Opinion of the Court
Burr, “agree[s]” that “not all” state criminal subpoenas for a
President'
s records “should be barred.” Post, at 840. On
that point the Court is unanimous.
B
We next consider whether a state grand jury subpoena
seeking a President's private papers must satisfy a height-
ened need standard. The Solicitor General would require a
threshold showing that the evidence sought is “critical” for
“specifc charging decisions” and that the subpoena is a “last
resort,” meaning the evidence is “not available from any
other source” and is needed “now, rather than at the end
of the President's term.” Brief for United States as Ami-
cus Curiae 29, 32 (internal quotation marks and alteration
omitted). Justice Alito, largely embracing those criteria,
agrees that a state criminal subpoena to a President “should
not be allowed unless a heightened standard is met.” Post,
at 840–842 (asking whether the information is “critical” and
“necessary . . . now”).
We disagree, for three reasons. First, such a heightened
standard would extend protection designed for offcial docu-
ments to the President's private papers. As the Solicitor
General and Justice Alito acknowledge, their proposed
test is derived from executive privilege cases that trace back
to Burr. Brief for United States as Amicus Curiae 26–28;
post, at 840–841. There, Marshall explained that if Jefferson
invoked presidential privilege over executive communica-
tions, the court would not “proceed against the president as
against an ordinary individual” but would instead require an
affdavit from the defense that “would clearly show the paper
to be essential to the justice of the case.” Burr, 25 F. Cas.,
at 192. The Solicitor General and Justice Alito would
have us apply a similar standard to a President's personal
papers. But this argument does not account for the relevant
passage from Burr: “If there be a paper in the possession of
the executive, which is not of an offcial nature, he must

808 TR
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stand, as respects that paper, in nearly the same situation
w
ith any other individual.” Id., at 191 (emphasis added).
And it is only “nearly”—and not “entirely”—because the
President retains the right to assert privilege over docu-
ments that, while ostensibly private, “partake of the charac-
ter of an offcial paper.” Id., at 191–192.
Second, neither the Solicitor General nor Justice Alito
has established that heightened protection against state sub-
poenas is necessary for the Executive to fulfll his Article II
functions. Beyond the risk of harassment, which we ad-
dressed above, the only justifcation they offer for the height-
ened standard is protecting Presidents from “unwarranted
burdens.” Brief for United States as Amicus Curiae 28;
see post, at 840 (asking whether “there is an urgent and criti-
cal need for the subpoenaed information”). In effect, they
argue that even if federal subpoenas to a President are war-
ranted whenever evidence is material, state subpoenas are
warranted “only when [the] evidence is essential.” Brief for
United States as Amicus Curiae 28; see post, at 840. But
that double standard has no basis in law. For if the state
subpoena is not issued to manipulate, supra, at 805–806, the
documents themselves are not protected, supra, at 807–808,
and the Executive is not impaired, supra, at 801–804, then
nothing in Article II or the Supremacy Clause supports hold-
ing state subpoenas to a higher standard than their federal
counterparts.
Finally, in the absence of a need to protect the Executive,
the public interest in fair and effective law enforcement cuts
in favor of comprehensive access to evidence. Requiring a
state grand jury to meet a heightened standard of need
would hobble the grand jury's ability to acquire “all informa-
tion that might possibly bear on its investigation.” R. En-
terprises, Inc., 498 U. S., at 297. And, even assuming the
evidence withheld under that standard were preserved until
the conclusion of a President's term, in the interim the State
would be deprived of investigative leads that the evidence

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might yield, allowing memories to fade and documents to
disappear
. This could frustrate the identifcation, investiga-
tion, and indictment of third parties (for whom applicable
statutes of limitations might lapse). More troubling, it could
prejudice the innocent by depriving the grand jury of excul-
patory evidence.
Rejecting a heightened need standard does not leave Pres-
idents with “no real protection.” Post, at 843 (opinion of
Alito, J.). To start, a President may avail himself of the
same protections available to every other citizen. These in-
clude the right to challenge the subpoena on any grounds
permitted by state law, which usually include bad faith and
undue burden or breadth. See, e. g., Virag, 54 N. Y. 2d, at
442–445, 430 N. E. 2d, at 1252–1253; In re Grand Jury Sub-
poenas, 72 N. Y. 2d 307, 315–316, 528 N. E. 2d 1195, 1200
(1988) (recognizing that grand jury subpoenas can be chal-
lenged as “overly broad” or “unreasonably burdensome” (in-
ternal quotation marks omitted)). And, as in federal court,
“[t]he high respect that is owed to the offce of the Chief
Executive . . . should inform the conduct of the entire pro-
ceeding, including the timing and scope of discovery.” Clin-
ton, 520 U. S., at 707. See id., at 724 (Breyer, J., concurring
in judgment) (stressing the need for courts presiding over
suits against the President to “schedule proceedings so as to
avoid signifcant interference with the President's ongoing
discharge of his offcial responsibilities”); Nixon, 418 U. S., at
702 (“[W]here a subpoena is directed to a President . . . ap-
pellate review . . . should be particularly meticulous.”).
Furthermore, although the Constitution does not entitle
the Executive to absolute immunity or a heightened stand-
ard, he is not “relegate[d]” only to the challenges available
to private citizens. Post, at 841 (opinion of Alito, J.). A
President can raise subpoena-specifc constitutional chal-
lenges, in either a state or federal forum. As previously
noted, he can challenge the subpoena as an attempt to infu-
ence the performance of his offcial duties, in violation of the

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Supremacy Clause. See supra, at 806. This avenue pro-
tec
ts against local political machinations “interposed as an
obstacle to the effective operation of a federal constitutional
power.” United States v. Belmont, 301 U. S. 324, 332 (1937).
In addition, the Executive can—as the district attorney
concedes—argue that compliance with a particular subpoena
would impede his constitutional duties. Brief for Respond-
ent Vance 42. Incidental to the functions confded in Article
II is “the power to perform them, without obstruction or
impediment.” 3 J. Story, Commentaries on the Constitution
of the United States § 1563, pp. 418–419 (1833). As a result,
“once the President sets forth and explains a confict be-
tween judicial proceeding and public duties,” or shows that
an order or subpoena would “signifcantly interfere with his
efforts to carry out” those duties, “the matter changes.”
Clinton, 520 U. S., at 710, 714 (opinion of Breyer, J.). At
that point, a court should use its inherent authority to quash
or modify the subpoena, if necessary to ensure that such “in-
terference with the President's duties would not occur.”
Id., at 708 (opinion of the Court).
***
Two hundred years ago, a great jurist of our Court estab-
lished that no citizen, not even the President, is categorically
above the common duty to produce evidence when called
upon in a criminal proceeding. We reaffrm that principle
today and hold that the President is neither absolutely im-
mune from state criminal subpoenas seeking his private pa-
pers nor entitled to a heightened standard of need. The
“guard[ ] furnished to this high offcer” lies where it always
has—in “the conduct of a court” applying established legal
and constitutional principles to individual subpoenas in a
manner that preserves both the independence of the Execu-
tive and the integrity of the criminal justice system. Burr,
25 F. Cas., at 34.
The arguments presented here and in the Court of Ap-
peals were limited to absolute immunity and heightened

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811
Kavanaugh, J., concurring in judgment
need. The Court of Appeals, however, has directed that the
case
be returned to the District Court, where the President
may raise further arguments as appropriate. 941 F. 3d, at
646, n. 19.
6
We affrm the judgment of the Court of Appeals and re-
mand the case for further proceedings consistent with this
opinion.
It is so ordered.
Justice Kavanaugh, with whom Justice Gorsuch joins,
concurring in the judgment.
The Court today unanimously concludes that a President
does not possess absolute immunity from a state criminal
subpoena, but also unanimously agrees that this case should
be remanded to the District Court, where the President may
raise constitutional and legal objections to the subpoena as
appropriate. See ante, at 810–811, and n. 6; post, at 825
(Thomas, J., dissenting); post, at 840–843 (Alito, J., dissent-
ing). I agree with those two conclusions.
***
The dispute over this grand jury subpoena refects a con-
fict between a State's interest in criminal investigation and
a President's Article II interest in performing his or her du-
ties without undue interference. Although this case in-
volves personal information of the President and is therefore
not an executive privilege case, the majority opinion cor-
rectly concludes based on precedent that Article II and the
Supremacy Clause of the Constitution supply some protec-
6
The daylight between our opinion and Justice Thomas's “dissent” is
not as great as that label might suggest. Post, at 825. We agree that
Presidents are neither absolutely immune from state criminal subpoenas
nor insulated by a heightened need standard. Post, at 819, 824–825, n. 3.
We agree that Presidents may challenge specifc subpoenas as impeding
their Article II functions. Post, at 820. And, although we affrm while
Justice Thomas would vacate, we agree that this case will be remanded
to the District Court. Post, at 825.

812 TR
UMP v. VANCE
Kavanaugh, J., concurring in judgment
tion for the Presidency against state criminal subpoenas of
th
is sort.
In our system of government, as this Court has often
stated, no one is above the law. That principle applies, of
course, to a President. At the same time, in light of Article
II of the Constitution, this Court has repeatedly declared—
and the Court indicates again today—that a court may not
proceed against a President as it would against an ordinary
litigant. See Cheney v. United States Dist. Court for D. C.,
542 U. S. 367, 381–382 (2004) (“In no case would a court be
required to proceed against the president as against an ordi-
nary individual” (internal quotation marks and alterations
omitted)); Clinton v. Jones, 520 U. S. 681, 704, n. 39 (1997) (a
court may not “proceed against the president as against an
ordinary individual” (internal quotation marks omitted));
United States v. Nixon, 418 U. S. 683, 715 (1974) (“In no case
of this kind would a court be required to proceed against the
president as against an ordinary individual” (internal quota-
tion marks and alterations omitted)); United States v. Burr,
25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807) (Marshall, C. J.)
(“In no case of this kind would a court be required to proceed
against the president as against an ordinary individual”).
The question here, then, is how to balance the State's in-
terests and the Article II interests. The longstanding prec-
edent that has applied to federal criminal subpoenas for of-
fcial, privileged Executive Branch information is United
States v. Nixon, 418 U. S. 683 (1974). That landmark case
requires that a prosecutor establish a “demonstrated, specifc
need” for the President's information. Id., at 713; see also
In re Sealed Case, 121 F. 3d 729, 753–757 (CADC 1997); cf.
Senate Select Committee on Presidential Campaign Activi-
ties v. Nixon, 498 F. 2d 725, 730–731 (CADC 1974) (en banc)
(similar standard for congressional subpoenas to the Execu-
tive Branch).
The Nixon “demonstrated, specifc need” standard is a
tried-and-true test that accommodates both the interests of

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813
Kavanaugh, J., concurring in judgment
the criminal process and the Article II interests of the Presi-
dency
. The Nixon standard ensures that a prosecutor's in-
terest in subpoenaed information is suffciently important to
justify an intrusion on the Article II interests of the Presi-
dency. The Nixon standard also reduces the risk of subject-
ing a President to unwarranted burdens, because it provides
that a prosecutor may obtain a President's information only
in certain defned circumstances.
Although the Court adopted the Nixon standard in a dif-
ferent Article II context—there, involving the confdential-
ity of offcial, privileged information—the majority opinion
today recognizes that there are also important Article II
(and Supremacy Clause) interests at stake here. A state
criminal subpoena to a President raises Article II and Su-
premacy Clause issues because of the potential for a state
prosecutor to use the criminal process and issue subpoenas
in a way that interferes with the President's duties, through
harassment or diversion. Cf. Nixon v. Fitzgerald, 457 U. S.
731, 751–753 (1982).
Because this case again entails a clash between the inter-
ests of the criminal process and the Article II interests of
the Presidency, I would apply the longstanding Nixon “dem-
onstrated, specifc need” standard to this case. The major-
ity opinion does not apply the Nixon standard in this distinct
Article II context, as I would have done. That said, the ma-
jority opinion appropriately takes account of some important
concerns that also animate Nixon and the Constitution's bal-
ance of powers. The majority opinion explains that a state
prosecutor may not issue a subpoena for a President's personal
information out of bad faith, malice, or an intent to harass a
President, ante, at 805–806; as a result of prosecutorial im-
propriety, ibid.; to seek information that is not relevant to
an investigation, ante, at 805–806, 809; that is overly broad or
unduly burdensome, ante, at 809; to manipulate, infuence, or
retaliate against a President's offcial acts or policy decisions,
ante, at 806, 809–810; or in a way that would impede, confict

814 TR
UMP v. VANCE
Kavanaugh, J., concurring in judgment
with, or interfere with a President's offcial duties, ante, at
809
–810. All nine Members of the Court agree, moreover,
that a President may raise objections to a state criminal sub-
poena not just in state court but also in federal court.
1
And
the majority opinion indicates that, in light of the “high re-
spect that is owed to the offce of the Chief Executive,”
courts “should be particularly meticulous” in assessing a sub-
poena for a President's personal records. Ante, at 809 (quot-
ing Clinton, 520 U. S., at 707, and Nixon, 418 U. S., at 702).
In the end, much may depend on how the majority opin-
ion's various standards are applied in future years and dec-
ades.
2
It will take future cases to determine precisely how
much difference exists between (i) the various standards ar-
ticulated by the majority opinion, (ii) the overarching Nixon
“demonstrated, specifc need” standard that I would adopt,
and (iii) Justice Thomas's and Justice Alito's other pro-
posed standards. In any event, in my view, lower courts in
cases of this sort involving a President will almost invariably
have to begin by delving into why the State wants the infor-
mation; why and how much the State needs the information,
including whether the State could obtain the information
elsewhere; and whether compliance with the subpoena would
unduly burden or interfere with a President's offcial duties.
***
I agree that the case should be remanded to the District
Court for further proceedings, where the President may
raise constitutional and legal objections to the state grand
jury subpoena as appropriate.
1
As I see it, the standards identifed by the majority opinion should be
considered, in this context, Article II requirements, not just statutory or
state-law requirements. Cf. Cheney v. United States Dist. Court for D. C.,
542 U. S. 367, 385–392 (2004); Clinton v. Jones, 520 U. S. 681, 707 (1997);
Nixon v. Fitzgerald, 457 U. S. 731, 749–757 (1982); United States v. Nixon,
418 U. S. 683, 714–716 (1974).
2
The same point—namely, that much may depend on future applica-
tion—is also true of the four considerations articulated by the Court today
in Trump v. Mazars USA, LLP, 591 U. S. 848, 869–871 (2020).

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815
Thomas, J., dissenting
Justice Thomas, dissenting.
Respondent
Cyrus Vance, Jr., the district attorney for the
County of New York, served a grand jury subpoena on the
President's personal accounting frm. The subpoena, which
is nearly identical to a subpoena issued by a congressional
Committee, requests nearly 10 years of the President's per-
sonal fnancial records. Ante, at 791–792, and n. 2. In re-
sponse to this troublingly broad request, the President, in his
personal capacity, sought a declaration in federal court “ `that
the subpoena is invalid and unenforceable' ” and an injunction
preventing respondent “ `from taking any action to enforce the
subpoena.' ” Ante, at 792. The District Court denied the
President's motion for a preliminary injunction, and the Sec-
ond Circuit affrmed in relevant part. Ante, at 792–793.
The President argues that he is absolutely immune from
the issuance of any subpoena, but that if the Court disagrees,
we should remand so that the District Court can develop
a record about this particular subpoena. I agree with the
majority that the President is not entitled to absolute immu-
nity from issuance of the subpoena. But he may be entitled
to relief against its enforcement. I therefore agree with the
President that the proper course is to vacate and remand.
If the President can show that “his duties as chief magistrate
demand his whole time for national objects,” United States
v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807) (Mar-
shall, C. J.), he is entitled to relief from enforcement of the
subpoena.
I
The President frst argues that he has absolute immunity
from the issuance of grand jury subpoenas during his term
in offce. This Court has recognized absolute immunity for
the President from “damages liability predicated on his off-
cial acts.” Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982).
But we have rejected absolute immunity from damages ac-
tions for a President's nonoffcial conduct, Clinton v. Jones,
520 U. S. 681, 684 (1997), and we have never addressed the
question of immunity from a grand jury subpoena.

816 TR
UMP v. VANCE
Thomas, J., dissenting
I agree with the majority that the President does not have
absolute
immunity from the issuance of a grand jury sub-
poena. Unlike the majority, however, I do not reach this
conclusion based on a primarily functionalist analysis. In-
stead, I reach it based on the text of the Constitution, which,
as understood by the ratifying public and incorporated into
an early circuit opinion by Chief Justice Marshall, does not
support the President's claim of absolute immunity.
1
A
1
The text of the Constitution explicitly addresses the privi-
leges of some federal offcials, but it does not afford the Pres-
ident absolute immunity. Members of Congress are “privi-
leged from Arrest during their Attendance at the Session of
their respective Houses, and in going to and returning from
the same,” except for “Treason, Felony and Breach of the
Peace.” Art. I, § 6, cl. 1. The Constitution further specifes
that, “for any Speech or Debate in either House, they shall
not be questioned in any other Place.” Ibid. By contrast,
the text of the Constitution contains no explicit grant of ab-
solute immunity from legal process for the President. As a
Federalist essayist noted during ratifcation, the President's
“person is not so much protected as that of a member of
the House of Representatives” because he is subject to the
issuance of judicial process “like any other man in the ordi-
nary course of law.” An American Citizen I (Sept. 26, 1787),
in 2 Documentary History of the Ratifcation of the Constitu-
tion 141 (M. Jensen ed. 1976) (emphasis deleted).
Prominent defenders of the Constitution confrmed the
lack of absolute Presidential immunity. James Wilson, a
signer of the Constitution and future Justice of this Court,
explained to his fellow Pennsylvanians that “far from being
1
I do not address the continuing validity of Nixon v. Fitzgerald, 457
U. S. 731 (1982), which no party asks us to revisit.

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817
Thomas, J., dissenting
above the laws, [the President] is amenable to them in his
pr
ivate character as a citizen, and in his public character by
impeachment.” 2 Debates on the Constitution 480 (J. Elliot
ed. 1891) (emphasis in original). James Iredell, another fu-
ture Justice, observed in the North Carolina ratifying con-
vention that “[i]f [the President] commits any crime, he is
punishable by the laws of his country.” 4 id., at 109. A
fellow North Carolinian similarly argued that, “[w]ere it pos-
sible to suppose that the President should give wrong in-
structions to his deputies, . . . citizens . . . would have redress
in the ordinary courts of common law.” Id., at 47; see also
Americanus No. 2, in 19 Documentary History of the Ratif-
cation of the Constitution 288–289 (J. Kaminski & G. Saladino
eds. 2003); Americanus No. 4, in id., at 359.
2
The sole authority that the President cites from the draft-
ing or ratifcation process is The Federalist No. 69, but it
provides him no real support. Alexander Hamilton stated
that “[t]he President of the United States would be liable to
be impeached, tried, and, upon conviction of treason, bribery,
or other high crimes or misdemeanors, removed from offce;
and would afterwards be liable to prosecution and punish-
ment in the ordinary course of law.” The Federalist No. 69,
p. 416 (C. Rossiter ed. 1961). Hamilton did not say that the
President was temporarily immune from judicial process.
Moreover, he made this comment to reassure readers that
the President was “amenable to personal punishment and
disgrace.” Id., at 422. For the President, this is at best
ambiguous evidence that cannot overcome the clear evidence
discussed above.
The President further relies on a private letter written by
President Jefferson. In the letter, Jefferson worried that
the Executive would lose his independence “if he were sub-
ject to the commands of the [ judiciary], & to imprisonment
for disobedience; if the several courts could bandy him from

818 TR
UMP v. VANCE
Thomas, J., dissenting
pillar to post, keep him constantly trudging from north to
south
& east to west, and withdraw him entirely from his
constitutional duties.” 10 Works of Thomas Jefferson 404,
n. (P. Ford ed. 1905) (emphasis in original). But President
Jefferson never squarely argued for absolute immunity.
Yoo, The First Claim: The Burr Trial, United States v.
Nixon, and Presidential Power, 83 Minn. L. Rev. 1435, 1450
(1999). And, the concern Jefferson had about demands on
the President's time is addressed by the standard that Chief
Justice Marshall articulated in Burr. See infra, at 820.
The President also quotes the views of Vice President John
Adams and then-Senator Oliver Ellsworth in 1789. The rec-
ord of the conversation we have from a fellow Senator's diary
is brief. Adams or Ellsworth (or perhaps both) stated that
“you could only impeach [the President], and no other process
whatever lay against him.” Journal of William Maclay 167
(E. Maclay ed. 1890). The only reason given was that
it would “stop the whole machine of Government.” Ibid.
Senator Philip Schuyler joined the conversation and gave his
own reason: “ `I think the President [is] a kind of sacred per-
son.' ” Ibid. Schuyler's theory clearly has no basis in the
Constitution, and the view held by Adams and Ellsworth
seems to be grounds for relief from enforcement rather than
a basis for absolute immunity from issuance of a subpoena.
B
This original understanding is refected in an early circuit
decision by Chief Justice Marshall, on which the majority
partially relies. In 1805, disgraced former Vice President
Aaron Burr began a murky series of negotiations to raise a
volunteer army in the Western Territories. Ante, at 793–
794. One of his contacts, General James Wilkinson, was not
only commander of the Army and Governor of Louisiana, but
also a Spanish spy. Ibid., n. 4; Yoo, supra, at 1440. After
Burr set out with his army—perhaps to attack Spanish
forces or perhaps to separate Western Territories from the

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819
Thomas, J., dissenting
United States—Wilkinson wrote to President Jefferson
and
accused Burr of the latter. Ante, at 794; Yoo, supra, at
1440. Burr was arrested for treason and brought before
a grand jury in Richmond, where Chief Justice Marshall
presided.
During the grand jury proceedings, Burr moved for a sub-
poena duces tecum ordering President Jefferson to produce
the correspondence concerning Burr. Burr, 25 F. Cas., at
30. Chief Justice Marshall pre-emptively rejected any no-
tion of absolute immunity, despite the fact that the Govern-
ment did not so much as suggest it in court. He distin-
guished the President from the British monarch, who did
have immunity, calling it an “essentia[l] . . . difference” in
our system that the President “is elected from the mass of
the people, and, on the expiration of the time for which he is
elected, returns to the mass of the people again.” Id., at
34. Thus, the President was more like a state governor or
a member of the British cabinet than a king. Chief Justice
Marshall found no authority suggesting that these offcials
were immune from judicial process. Ibid.; see also ante,
at 795–796.
Based on the evidence of original meaning and Chief Jus-
tice Marshall's early interpretation in Burr, the better read-
ing of the text of the Constitution is that the President has
no absolute immunity from the issuance of a grand jury
subpoena.
II
In addition to contesting the issuance of the subpoena, the
President also seeks injunctive and declaratory relief against
its enforcement. The majority recognizes that the Presi-
dent can seek relief from enforcement, but it does not vacate
and remand for the lower courts to address this question. I
would do so and instruct them to apply the standard articu-
lated by Chief Justice Marshall in Burr: If the President is
unable to comply because of his offcial duties, then he is
entitled to injunctive and declaratory relief.

820 TR
UMP v. VANCE
Thomas, J., dissenting
A
In
Burr, after explaining that the President was not abso-
lutely immune from issuance of a subpoena, Chief Justice
Marshall proceeded to explain that the President might be
excused from the enforcement of one. As he put it, “[t]he
guard, furnished to this high offcer, to protect him from
being harassed by vexatious and unnecessary subpoenas, is
to be looked for in the conduct of a court after those subpoe-
nas have issued; not in any circumstance which is to precede
their being issued.” 25 F. Cas., at 34 (emphasis added).
Chief Justice Marshall set out the pertinent standard: To
avoid enforcement of the subpoena, the President must
“sho[w]” that “his duties as chief magistrate demand his
whole time for national objects.” Ibid.
2
Although Burr involved a federal subpoena, the same prin-
ciple applies to a state subpoena. The ability of the Presi-
dent to discharge his duties until his term expires or he is
removed from offce by the Senate is “integral to the struc-
ture of the Constitution.” Franchise Tax Bd. of Cal. v.
Hyatt, 587 U. S. 230, 246 (2019). The Constitution is the “su-
preme Law of the Land,” Art. VI, cl. 2, so a state court can
no more enforce a subpoena when national concerns demand
the President's entire time than a federal court can. Ac-
cordingly, a federal court may provide injunctive and declar-
atory relief to stay enforcement of a state subpoena when
the President meets the Burr standard.
B
The Burr standard places the burden on the President but
also requires courts to take pains to respect the demands on
2
This standard appears to be something that Chief Justice Marshall
and President Jefferson, who were often at odds, could agree on. Presi-
dent Jefferson's concern was that the Executive would lose his independ-
ence if courts could “ `withdraw him entirely from his constitutional du-
ties.' ” 10 Works of Thomas Jefferson 404, n. (P. Ford ed. 1905). Relief
from enforcement when those duties preclude the President's compliance
addresses these concerns.

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821
Thomas, J., dissenting
the President's time. The Constitution vests the President
w
ith extensive powers and responsibilities, and courts are
poorly situated to conduct a searching review of the Presi-
dent's assertion that he is unable to comply.
1
The President has vast responsibilities both abroad and at
home. The Founders gave the President “primary responsi-
bility—along with the necessary power—to protect the na-
tional security and to conduct the Nation's foreign relations.”
Hamdi v. Rumsfeld, 542 U. S. 507, 580 (2004) (Thomas, J.,
dissenting). The Constitution “expressly identifes certain
foreign affairs powers and vests them” in his offce. Zivo-
tofsky v. Kerry, 576 U. S. 1, 32 (2015) (Thomas, J., concurring
in judgment in part and dissenting in part). He is “Com-
mander in Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called into the
actual Service of the United States.” Art. II, § 2, cl. 1. He
has “Power, by and with the Advice and Consent of the Sen-
ate, to make Treaties.” Cl. 2. He has the power to “nomi-
nate, and by and with the Advice and Consent of the Senate
[to] appoint Ambassadors [and] other public Ministers and
Consuls.” Ibid. He has the power to fll vacancies that
arise during a Senate recess until “the End of [the Senate's]
next Session.” Cl. 3. And he is responsible for “receiv[ing]
Ambassadors and other public Ministers” from foreign coun-
tries. § 3.
The President also has residual powers granted by Arti-
cle II's Vesting Clause. “By omitting the words `herein
granted' in [the Vesting Clause of] Article II, the Constitu-
tion indicates that the `executive Power' vested in the Presi-
dent is not confned to those powers expressly identifed in
the document.” Zivotofsky, 576 U. S., at 34–35 (opinion of
Thomas, J.). Rather, the Constitution “vests the residual
foreign affairs powers of the Federal Government—i. e.,
those not specifcally enumerated in the Constitution—in the

822 TR
UMP v. VANCE
Thomas, J., dissenting
President.” Id., at 33. Evidence from both the founding
and
the early years of the Constitution confrms that the re-
sidual foreign affairs powers of the Government were part
of the “executive Power.” Id., at 35–40.
The President has extensive domestic responsibilities as
well. He is given “[t]he executive Power,” Art. II, § 1, cl. 1,
and is directed to “take Care that the Laws be faithfully
executed,” § 3. “The vesting of the executive power in the
President was essentially a grant of the power to execute
the laws.” Myers v. United States, 272 U. S. 52, 117 (1926).
Even under a proper understanding of the scope of federal
power, the President could not possibly execute all of the
laws himself. The President must accordingly appoint sub-
ordinates “to act for him under his direction in the execution
of the laws.” Ibid. Once offcers are selected, the Presi-
dent must “supervise and guide their construction of the
statutes under which they act in order to secure that unitary
and uniform execution of the laws which Article II of the
Constitution evidently contemplated in vesting general exec-
utive power in the President alone.” Id., at 135. And, of
course, the President has the power to remove offcers as he
sees ft. Id., at 176; see also Seila Law LLC v. Consumer
Financial Protection Bureau, 591 U. S. 197, 238–251 (2020)
(Thomas, J., concurring in part and dissenting in part).
In addition, the President has several specifcally enumer-
ated domestic powers. He has the “Power to Grant Re-
prieves and Pardons for Offences against the United States,
except in Cases of Impeachment.” Art. II, § 2, cl. 1. He
also has the power to “nominate, and by and with the Advice
and Consent of the Senate [to] appoint . . . Judges of the
supreme Court, and all other Offcers of the United States,
whose Appointments are not herein otherwise provided for,
and which shall be established by Law.” Cl. 2. And he
must “give to the Congress Information of the State of the
Union, and recommend to their Consideration such Measures
as he shall judge necessary and expedient.” § 3.

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823
Thomas, J., dissenting
The founding generation debated whether it was prudent
to
vest so many powers in a single person. Supporters of
ratifcation responded that the design of the Presidency was
necessary to the success of the Constitution. As Alexander
Hamilton wrote:
“Energy in the executive is a leading character in the
defnition of good government. It is essential to the
protection of the community against foreign attacks; it
is not less essential to the steady administration of the
laws; to the protection of property against those irregu-
lar and high-handed combinations which sometimes in-
terrupt the ordinary course of justice; to the security of
liberty against the enterprises and assaults of ambition,
of faction, and of anarchy. . . . A feeble Executive implies
a feeble execution of the government. A feeble execu-
tion is but another phrase for a bad execution; and a
government ill executed, whatever it may be in theory,
must be, in practice, a bad government.” The Federal-
ist No. 70, at 423.
In sum, the demands on the President's time and the im-
portance of his tasks are extraordinary, and the offce of the
President cannot be delegated to subordinates. A subpoena
imposes both demands on the President's limited time and a
mental burden, even when the President is not directly en-
gaged in complying. This understanding of the Presidency
should guide courts in deciding whether to enforce a sub-
poena for the President's documents.
2
Courts must also recognize their own limitations. When
the President asserts that matters of foreign affairs or na-
tional defense preclude his compliance with a subpoena, the
Judiciary will rarely have a basis for rejecting that assertion.
Judges “simply lack the relevant information and expertise
to second-guess determinations made by the President based

824 TR
UMP v. VANCE
Thomas, J., dissenting
on information properly withheld.” Hamdi, 542 U. S., at 583
(
Thomas, J., dissenting).
“[E]ven if the courts could compel the Executive to
produce the necessary information” to understand the de-
mands on his time, decisions about that information “are sim-
ply not amenable to judicial determination because `[t]hey
are delicate, complex, and involve large elements of proph-
ecy.' ” Ibid. (quoting Chicago & Southern Air Lines, Inc. v.
Waterman S. S. Corp., 333 U. S. 103, 111 (1948)). The Presi-
dent has at his disposal enormous amounts of classifed intel-
ligence regarding the Government's concerns around the
globe. His decisionmaking is further informed by experi-
ence in matters of foreign affairs, national defense, and intel-
ligence that judges almost always will not have. And his
decisionmaking takes into account the full spectrum of the
Government's operations, not just the matters directly re-
lated to a particular case. Even with perfect information,
courts lack the institutional competence to engage in a
searching review of the President's reasons for not comply-
ing with a subpoena.
Here, too, Chief Justice Marshall was correct. A court
should “fee[l] many, perhaps, peculiar motives for manifest-
ing as guarded a respect for the chief magistrate of the
Union as is compatible with its offcial duties.” Burr, 25
F. Cas., at 37. Courts should have the same “circumspec-
tion” as Chief Justice Marshall before “tak[ing] any step
which would in any manner relate to that high personage.”
Id., at 35.
3
3
The President and the Solicitor General argue that the grand jury must
make a showing of heightened need. I agree with the majority's decision
not to adopt this standard, ante, at 807–809, but for different reasons.
The constitutional question in this case is whether the President is able to
perform the duties of his offce, whereas a heightened need standard ad-
dresses a logically independent issue. Under a heightened need standard,
a grand jury with only the usual need for particular information would be
refused it when the President is perfectly able to comply, while a grand
jury with a heightened need would be entitled to it even if compliance

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as: 591 U. S. 786 (2020)
825
Alito, J., dissenting
***
I
agree with the majority that the President has no abso-
lute immunity from the issuance of this subpoena. The
President also sought relief from enforcement of the sub-
poena, however, and he asked this Court to allow further
proceedings on that question if we rejected his claim of abso-
lute immunity. The Court inexplicably fails to address this
request, although its decision leaves the President free to
renew his request for an injunction against enforcement im-
mediately on remand.
I would vacate and remand to allow the District Court to
determine whether enforcement of this subpoena should be
enjoined because the President's “duties as chief magistrate
demand his whole time for national objects.” Id., at 34.
Accordingly, I respectfully dissent.
Justice Alito, dissenting.
This case is almost certain to be portrayed as a case about
the current President and the current political situation, but
the case has a much deeper signifcance. While the decision
will of course have a direct effect on President Trump, what
the Court holds today will also affect all future Presidents—
which is to say, it will affect the Presidency, and that is a
matter of great and lasting importance to the Nation.
The event that precipitated this case is unprecedented.
Respondent Vance, an elected state prosecutor, launched a
criminal investigation of a sitting President and obtained a
grand jury subpoena for his records. The specifc question
before us—whether the subpoena may be enforced—cannot
be answered adequately without considering the broader
question that frames it: whether the Constitution imposes
restrictions on a State's deployment of its criminal law en-
forcement powers against a sitting President. If the Consti-
would place undue obligations on the President. This result makes little
sense and lacks any basis in the original understanding of the Constitution.
I would leave questions of the grand jury's need to state law.

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UMP v. VANCE
Alito, J., dissenting
tution sets no such limits, then a local prosecutor may prose-
cute
a sitting President. And if that is allowed, it follows a
fortiori that the subpoena at issue can be enforced. On the
other hand, if the Constitution does not permit a State to
prosecute a sitting President, the next logical question is
whether the Constitution restrains any other prosecutorial
or investigative weapons.
These are important questions that go to the very struc-
ture of the Government created by the Constitution. In
evaluating these questions, two important structural fea-
tures must be taken into account.
I
A
The frst is the nature and role of the Presidency. The
Presidency, like Congress and the Supreme Court, is a per-
manent institution created by the Constitution. All three of
these institutions are distinct from the human beings who
serve in them at any point in time. In the case of Congress
or the Supreme Court, the distinction is easy to perceive,
since they have multiple Members. But because “[t]he Pres-
ident is the only person who alone composes a branch of gov-
ernment. . . . , there is not always a clear line between his
personal and offcial affairs.” Trump v. Mazars USA, LLP,
591 U. S. 848, 868 (2020). As a result, the law's treatment
of the person who serves as President can have an important
effect on the institution, and the institution of the Presidency
plays an indispensable role in our constitutional system.
The Constitution entrusts the President with responsibil-
ities that are essential to the country's safety and well-being.
The President is Commander in Chief of the Armed Forces.
Art. II, § 2, cl. 1. He is responsible for the defense of the
country from the moment he enters offce until the moment
he leaves.
The President also has the lead role in foreign relations.
He “make[s]” treaties with the advice and consent of the Sen-

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827
Alito, J., dissenting
ate, Art. II, § 2, cl. 2, decides whether to recognize foreign
gover
nments, Zivotofsky v. Kerry, 576 U. S. 1 (2015), enters
into and rescinds executive agreements with other coun-
tries,
1
meets with foreign leaders, appoints ambassadors,
Art. II, § 2, cl. 2, oversees the work of the State Department
and intelligence agencies, and exercises important foreign-
relations powers under statutes and treaties that give him
broad discretion in matters relating to subjects such as ter-
rorism, trade, and immigration.
2
1
See, e. g., American Ins. Assn. v. Garamendi, 539 U. S. 396, 415 (2003);
Dames & Moore v. Regan, 453 U. S. 654, 679–683 (1981); United States v.
Pink, 315 U. S. 203, 229–230 (1942); United States v. Belmont, 301 U. S.
324, 330–331 (1937).
2
Foreign Assistance Act of 1961, 22 U. S. C. § 2318(a)(1) (permitting the
President to order “the drawdown of defense articles from the stocks of
the Department of Defense” in the event of “an unforeseen emergency
. . . which requires immediate military assistance to a foreign country or
international organization”); National Emergencies Act, 50 U. S. C. § 1621
(authorizing the President to declare a national emergency and activate
over 100 statutory emergency powers); International Emergency Eco-
nomic Powers Act, 50 U. S. C. § 1701(a) (granting Presidential emergency
power “to deal with any unusual and extraordinary threat, which has its
source in whole or substantial part outside the United States, to the na-
tional security, foreign policy, or economy of the United States”); Trading
with the Enemy Act, 50 U. S. C. § 4305(b)(1)(B) (authorizing the President,
“[d]uring the time of war,” to prohibit “transactions involvin[g] any prop-
erty in which any foreign country or a national thereof has any inter-
est, ” among other th i ngs); Trade Expansi on Ac t of 1962, 19 U. S. C.
§ 1862(c)(3)(A) (authorizing “actions as the President deems necessary to
adjust the imports of ” certain articles of trade “so that such imports will
not threaten to impair the national security”); Trade Act of 1974, 19
U. S. C. § 2132(a) (authorizing the President, among other things, to impose
temporary duty surcharges or quotas in order to address “large and seri-
ous United States balance-of-payments defcits,” “an imminent and sig-
nifcant depreciation of the dollar in foreign exchange markets,” or “to
cooperate with other countries in correcting an international balance-of-
payments disequilibrium”), § 2133(a) (authorizing the President, whenever
a specifed event “increases or imposes any duty or other import restric-
tion,” to “enter into trade agreements with foreign countries or instru-
mentalities for the purpose of granting new concessions as compensation

828 TR
UMP v. VANCE
Alito, J., dissenting
The Constitution vests the President with “the executive
Power
” of the United States, Art. II, § 1, cl. 1, and entrusts
him with the responsibility to “take Care that the Laws be
faithfully executed,” § 3. As the head of the Executive
Branch, the President is ultimately responsible for everything
done by all the departments and agencies of the Federal Gov-
ernment and a federal civilian work force that includes mil-
lions of employees. These weighty responsibilities impose
enormous burdens on the time and energy of any occupant
of the Presidency.
“Constitutionally speaking, the President never sleeps.
The President must be ready, at a moment's notice, to do
whatever it takes to preserve, protect, and defend the Con-
stitution and the American people.” Amar & Katyal, Exec-
utive Privileges and Immunities: The Nixon and Clinton
Cases, 108 Harv. L. Rev. 701, 713 (1995). Without a Presi-
dent who is able at all times to carry out the responsibilities
of the offce, our constitutional system could not operate, and
the country would be at risk. That is why the Twenty-ffth
Amendment created a mechanism for temporarily transfer-
in order to maintain the general level of reciprocal and mutually advanta-
geous concessions” and to take actions “to carry out any such agreement”),
§ 2411(a) (mandating the U. S. Trade Representative, subject to the Presi-
dent's direction, to modify tariff rates if “the rights of the United States
under any trade agreement are being denied” or if a foreign country's
actions are “unjustifable and burde[n] or restric[t] United States com-
merce”), § 2461 (authorizing the President to “provide duty-free treatment
for any eligible article from any benefciary developing country”); Biparti-
san Congressional Trade Priorities and Accountability Act of 2015, 19
U. S. C. §§ 4201–4210 (most recent delegation of trade-promotion authority,
authorizing the President to negotiate and enter trade agreements); Immi-
gration and Nationality Act of 1952, 8 U. S. C. § 1182(f ) (authorizing the
President, “for such period as he shall deem necessary,” to “suspend the
entry of all aliens or any class of aliens as immigrants or nonimmigrants,
or impose on the entry of aliens any restrictions he may deem to be appro-
priate,” “[w]henever the President fnds that the entry of any aliens or of
any class of aliens into the United States would be detrimental to the
interests of the United States”).

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829
Alito, J., dissenting
ring the responsibilities of the offce to the Vice President if
the
President is incapacitated for even a brief time. The
Amendment has been explicitly invoked on only two occa-
sions, each time for a period of about two hours.
3
This
mechanism refects an appreciation that the Nation cannot
be safely left without a functioning President for even a
brief time.
B
The second structural feature is the relationship between
the Federal Government and the States. Just as our Consti-
tution balances power against power among the branches of
the Federal Government, it also divides power between the
Federal Government and the States. The Constitution per-
mitted the States to retain many of the sovereign powers
that they previously possessed, see, e. g., Murphy v. Na-
tional Collegiate Athletic Assn., 584 U. S. 453 (2018), but
it gave the Federal Government powers that were deemed
essential for the Nation's well-being and, indeed, its survival.
And it provided for the Federal Government to be inde-
pendent of and, within its allotted sphere, supreme over
the States. Art. VI, cl. 2. Accordingly, a State may not
block or interfere with the lawful work of the National
Government.
This was an enduring lesson of Chief Justice Marshall's
landmark opinion for the Court in McCulloch v. Maryland,
4 Wheat. 316 (1819). As is well known, the case concerned
the attempt by the State of Maryland to regulate and tax
the federally chartered Second Bank of the United States.
After holding that Congress had the authority to establish
3
See Letter from G. Bush to Congressional Leaders on Temporary
Transfer of the Powers and Duties of President of the United States (June
29, 2002), www.presidency.ucsb.edu/node/213575; Letter from G. Bush to
Congressional Leaders on the Temporary Transfer of the Powers and Du-
ties of the President of the United States (July 21, 2007), www.presidency
.ucsb.edu/node/276172; see also Stolberg, For a Short While Today, It Will
Be President Cheney, N. Y. Times, July 21, 2007, p. A11, col. 1.

830 TR
UMP v. VANCE
Alito, J., dissenting
the bank, id., at 425, Marshall's opinion went on to conclude
that
the State could not tax it. Marshall recognized that
the States retained the “sovereign” power to tax persons and
entities within their jurisdiction, id., at 429, but this power,
he explained, “is subordinate to, and may be controlled by
the constitution of the United States.” Id., at 427. Noting
the potency of the taxing power (“[a] right to tax without
limit or control, is essentially a power to destroy,” id., at
391), he concluded that a State's power to tax had to give
way to Congress's authority to charter the bank. In his
words, the state power to tax could not be used to “defeat
the legitimate operations,” id., at 427, of the Federal Govern-
ment or “to retard, impede, burden, or in any manner con-
trol” it, id., at 436. Marshall thus held, not simply that
Maryland was barred from assessing a crushing tax that
threatened the bank's ability to operate, but that the State
could not tax the bank at all. He wrote:
“We are not driven to the perplexing inquiry, so unft
for the judicial department, what degree of taxation is
the legitimate use, and what degree may amount to the
abuse of the power. The attempt to use it on the means
employed by the government of the Union, in pursuance
of the constitution, is itself an abuse.” Id., at 430.
Even a rule allowing a state tax that did not discriminate
between the federally chartered bank and state banks was
ruled out. Instead, he concluded that preservation of the
Constitution's federal structure demanded that any state ef-
fort to tax a federal instrumentality be nipped in the bud.
Building on this principle of federalism, two centuries of
case law prohibit the States from taxing,
4
regulating, or oth-
4
Kern-Limerick, Inc. v. Scurlock, 347 U. S. 110, 117 (1954) (noting that
“recognition of the constitutional immunity of the Federal Government
from state exactions rests, of course, upon unquestioned authority”); Mayo
v. United States, 319 U. S. 441, 447 (1943) (“These inspection fees are laid
directly upon the United States. They are money exactions the payment
of which, if they are enforceable, would be required before executing a

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831
Alito, J., dissenting
erwise interfering with the lawful work of federal agencies,
i
nstrumentalities, and offcers.
5
The Court premised these
function of government. Such a requirement is prohibited by the suprem-
acy clause”); Clallam County v. United States, 263 U. S. 341, 344 (1923)
(holding that property owned by the United States is immune from state
taxation); see also Weston v. City Council of Charleston, 2 Pet. 449, 469
(1829) (“The tax on government stock is thought by this Court to be a tax
on the contract, a tax on the power to borrow money on the credit of the
United States, and consequently to be repugnant to the constitution”);
Osborn v. Bank of United States, 9 Wheat. 738, 867 (1824) (“If the trade
of the Bank be essential to its character, as a machine for the fscal opera-
tions of the government, that trade must be as exempt from State control
as the actual conveyance of the public money. Indeed, a tax bears upon
the whole machine; as well upon the faculty of collecting and transmitting
the money of the nation, as on that of discounting the notes of individuals.
No distinction is taken between them”); Dawson v. Steager, 586 U. S.
171, 174 (2019) (surveying Court precedent on intergovernmental tax
immunity).
5
Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 180 (1988) (“It is well
settled that the activities of federal installations are shielded by the Su-
premacy Clause from direct state regulation unless Congress provides
`clear and unambiguous' authorization for such regulation”); id., at 181
(concluding that “a federally owned facility performing a federal function
is shielded from direct state regulation, even though the federal function
is carried out by a private contractor, unless Congress clearly authorizes
such regulation”); Hancock v. Train, 426 U. S. 167, 178–179 (1976) (reject-
ing state agency's bid to regulate a federal installation and surveying doc-
trines that establish that “ `the federal function must be left free' of [state]
regulation”); see also Leslie Miller, Inc. v. Arkansas, 352 U. S. 187, 189–
190 (1956) (per curiam) (concluding that federal contractors cannot be
forced to submit to state licensing procedures that would add to the quali-
fcations required to receive the federal contract); Johnson v. Maryland,
254 U. S. 51, 57 (1920) (concluding that federal postal offcials may not be
required to get a state driver's license to perform their duties and explain-
ing that “the immunity of the instruments of the United States from state
control in the performance of their duties extends to . . . requirement[s]
that they desist from performance until they satisfy a state offcer upon
examination that they are competent for a necessary part of them”); In re
Neagle, 135 U. S. 1, 75 (1890) (concluding that a federal offcial may not be
“held in the state court to answer for an act which he [or she] was author-
ized to do by the law of the United States”); id., at 62 (“To cite all the
cases in which this principle of the supremacy of the government of the

832 TR
UMP v. VANCE
Alito, J., dissenting
cases on the principle that “the activities of the Federal Gov-
er
nment are free from regulation by any state. No other
adjustment of competing enactments or legal principles is
possible.” Mayo v. United States, 319 U. S. 441, 445 (1943)
(footnote omitted).
II
A
In McCulloch, Maryland's sovereign taxing power had to
yield, and in a similar way, a State's sovereign power to en-
force its criminal laws must accommodate the indispensable
role that the Constitution assigns to the Presidency. This
must be the rule with respect to a state prosecution of a
sitting President. Both the structure of the Government es-
tablished by the Constitution and the Constitution's provi-
sions on the impeachment and removal of a President make
it clear that the prosecution of a sitting President is out of
the question. It has been aptly said that the President is
the “sole indispensable man in government,”
6
and subjecting
a sitting President to criminal prosecution would severely
United States, in the exercise of all the powers conferred upon it by the
Constitution, is maintained, would be an endless task”); Tarble's Case, 13
Wall. 397, 404 (1872) (explaining that States have no authority to “inter-
fere with the authority of the United States, whether that authority be
exercised by a Federal offcer or be exercised by a Federal tribunal”);
Crosby v. National Foreign Trade Council, 530 U. S. 363, 376–382 (2000)
(explaining harm caused by state statutes that would “compromise the
very capacity of the President to speak for the Nation with one voice in
dealing with other governments”); EPA v. California ex rel. State Water
Resources Control Bd., 426 U. S. 200, 211 (1976) (“Federal installations
are subject to state regulation only when and to the extent that congres-
sional authorization is clear and unambiguous”); Arizona v. California,
283 U. S. 423, 451 (1931) (“The United States may perform its functions
without conforming to the police regulations of a State”); Hunt v. United
States, 278 U. S. 96, 100–101 (1928) (recognizing that the United States
was entitled to an injunction against state offcers interfering with private
citizens killing deer in national forest under authority of the United
States).
6
P. Kurland, Watergate and the Constitution 135 (1978).

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833
Alito, J., dissenting
hamper his ability to carry out the vital responsibilities that
the
Constitution puts in his hands.
Justice Joseph Story endorsed this reasoning in his famous
treatise. He wrote that a President's responsibilities neces-
sarily entail “the power to perform [those duties], without
any obstruction or impediment whatsoever,” and that, as a
result, a President is not “liable to arrest, imprisonment, or
detention” while in offce. 3 Commentaries on the Constitu-
tion of the United States § 1563, pp. 418–419 (1833).
The constitutional provisions on impeachment provide fur-
ther support for the rule that a President may not be pros-
ecuted while in offce. The Framers foresaw the need to
provide for the possibility that a President might be impli-
cated in the commission of a serious offense, and they did
not want the country to be forced to endure such a President
for the remainder of his term in offce. But when a Presi-
dent has been elected by the people pursuant to the proce-
dures set out in the Constitution, it is no small thing to over-
turn that choice. The Framers therefore crafted a special
set of procedures to deal with that contingency. They put
the charging decision in the hands of a body that represents
all the people (the House of Representatives), not a single
prosecutor or the members of a local grand jury. And they
entrusted the weighty decision whether to remove a Presi-
dent to a supermajority of Senators, who were expected to
exercise reasoned judgment and not the political passions of
the day or the sentiments of a particular region.
The Constitution not only sets out the procedures for deal-
ing with a President who is suspected of committing a seri-
ous offense; it also specifes the consequences of a judgment
adverse to the President. After providing that the judg-
ment cannot impose any punishment beyond removal from
the Presidency and disqualifcation from holding any other
federal offce, the Constitution states that “the Party con-
victed shall nevertheless be liable and subject to Indictment,
Trial, Judgment and Punishment, according to Law.” Art.

834 TR
UMP v. VANCE
Alito, J., dissenting
I, § 3, cl. 7. The plain implication is that criminal prosecu-
ti
on, like removal from the Presidency and disqualifcation
from other offces, is a consequence that can come about only
after the Senate's judgment, not during or prior to the Sen-
ate trial.
This was how Hamilton explained the impeachment provi-
sions in the Federalist Papers. He wrote that a President
may “be impeached, tried, and, upon conviction . . . would
afterwards be liable to prosecution and punishment in the
ordinary course of law.” The Federalist No. 69, p. 416 (C.
Rossiter ed. 1961) (emphasis added); see also id., No. 77,
at 464 (A. Hamilton) (a President is “at all times liable to
impeachment, trial, [and] dismission from offce,” but any
other punishment must come only “by subsequent prosecu-
tion in the common course of law” (emphasis added)).
In the proceedings below, neither respondent, nor the Dis-
trict Court, nor the Second Circuit was willing to concede
the fundamental point that a sitting President may not be
prosecuted by a local district attorney. Respondent has said
that he is investigating the President and, until oral argu-
ment in this Court, he never foreswore an intention to
charge the President while he is still in offce.
7
The District
7
During oral argument in the Second Circuit, respondent's attorney said
the following:
“It's hard for me to say that there could be no circumstance under which
a President could ever imaginably be criminally charged or perhaps
tried . . . . You can invent scenarios where you can imagine that it would
be necessary or at least perhaps a good idea for a sitting President to be
subject to a criminal charge even by a state while in offce.” Recording
of Oral Arg. in No. 19–3204 (CA2, Oct. 23, 2019), at 28:20–28:40; 36:35–
36:45, https://www.ca2.uscourts.gov/decisions/oral_arguments.html.
Respondent's brief in this case says only that “[f]or the purpose of this
case, the Court may assume . . . that a sitting President is not amenable to
criminal prosecution.” Brief for Respondent Vance 24–25. During oral
argument in this Court, however, counsel for respondent stated: “We're
mindful that as a state actor our offce cannot investigate a president for
any offcial acts and that we cannot prosecute a president while in offce.”
Tr. of Oral Arg. 54.

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835
Alito, J., dissenting
Court conceded only that “perhaps” a sitting President could
not
be prosecuted for an offense punishable by “lengthy im-
prisonment” but that an offense requiring only a short trial
would be another matter. 395 F. Supp. 3d 283, 289, 311
(SDNY 2019). And the Second Circuit was silent on the
question.
The scenario apparently contemplated by the District
Court is striking. If a sitting President were charged in
New York County, would he be arrested and fngerprinted?
He would presumably be required to appear for arraignment
in criminal court, where the judge would set the conditions
for his release. Could he be sent to Rikers Island or be
required to post bail? Could the judge impose restrictions
on his travel? If the President were scheduled to travel
abroad—perhaps to attend a G–7 meeting—would he have to
get judicial approval? If the President were charged with
a complicated offense requiring a long trial, would he have
to put his Presidential responsibilities aside for weeks on end
while sitting in a Manhattan courtroom? While the trial
was in progress, would aides be able to approach him and
whisper in his ear about pressing matters? Would he be
able to obtain a recess whenever he needed to speak with an
aide at greater length or attend to an urgent matter, such as
speaking with a foreign leader? Could he effectively carry
out all his essential Presidential responsibilities after the
trial day ended and at the same time adequately confer with
his trial attorneys regarding his defense? Or should he be
expected to give up the right to attend his own trial and be
tried in absentia? And if he were convicted, could he be
imprisoned? Would aides be installed in a nearby cell?
This entire imagined scene is farcical. The “right of all
the People to a functioning government” would be sacrifced.
Amar & Kalt, The Presidential Privilege Against Prosecu-
tion, 2 Nexus 11, 14 (1997). “Does anyone really think, in a
country where common crimes are usually brought before
state grand juries by state prosecutors, that it is feasible to

836 TR
UMP v. VANCE
Alito, J., dissenting
subject the president—and thus the country—to every dis-
tr
ict attorney with a reckless mania for self-promotion?” C.
Black & P. Bobbitt, Impeachment: A Handbook 112 (2018).
See also R. Moss, Asst. Atty. Gen., A Sitting President's
Amenability to Indictment and Criminal Prosecution, 24 Op.
Offce of Legal Counsel (OLC) 222, 260 (2000) (Moss Memo);
Memorandum from R. Dixon, Asst. Atty. Gen., OLC, Re:
Amenability of the President, Vice President and Other Civil
Offcers to Federal Criminal Prosecution While in Offce
(Sept. 24, 1973).
B
While the prosecution of a sitting President provides the
most dramatic example of a clash between the indispensable
work of the Presidency and a State's exercise of its criminal
law enforcement powers, other examples are easy to imag-
ine. Suppose state offcers obtained and sought to execute
a search warrant for a sitting President's private quarters in
the White House. Suppose a state court authorized surveil-
lance of a telephone that a sitting President was known to
use. Or suppose that a sitting President was subpoenaed to
testify before a state grand jury and, as is generally the rule,
no Presidential aides, even those carrying the so-called “nu-
clear football,”
8
were permitted to enter the grand jury
room. What these examples illustrate is a principle that
this Court has recognized: legal proceedings involving a sit-
ting President must take the responsibilities and demands of
the offce into account. See Clinton v. Jones, 520 U. S. 681,
707 (1997).
It is not enough to recite sayings like “no man is above the
law” and “ `the public has a right to every man's evidence.' ”
Ante, at 791, 812. These sayings are true—and important
—but they beg the question. The law applies equally to all
8
Atomic Heritage Foundation, Nuclear Br iefcases (June 12, 2018),
www.atomicheritage.org/history/nuclear-briefcases.

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837
Alito, J., dissenting
persons, including a person who happens for a period of time
to
occupy the Presidency. But there is no question that the
nature of the offce demands in some instances that the appli-
cation of laws be adjusted at least until the person's term in
offce ends.
C
I now come to the specifc investigative weapon at issue in
the case before us—a subpoena for a sitting President's rec-
ords. This weapon is less intrusive in an immediate sense
than those mentioned above. Since the records are held by,
and the subpoena was issued to, a third party, compliance
would not require much work on the President's part. And
after all, this is just one subpoena.
But we should heed the “great jurist,” ante, at 810, who
rejected a similar argument in McCulloch. If we say that
a subpoena to a third party is insuffcient to undermine a
President's performance of his duties, what about a subpoena
served on the President himself ? Surely in that case, the
President could turn over the work of gathering the re-
quested documents to attorneys or others recruited to per-
form the task. And if one subpoena is permitted, what
about two? Or three? Or ten? Drawing a line based on
such factors would involve the same sort of “perplexing in-
quiry, so unft for the judicial department” that Marshall re-
jected in McCulloch, 4 Wheat., at 430.
The Court faced a similar issue when it considered
whether a President can be sued for an allegedly unlawful
act committed in the performance of offcial duties. See
Nixon v. Fitzgerald, 457 U. S. 731 (1982). We did not ask
whether the particular suit before us would have interfered
with the carrying out of Presidential duties. (It could not
have had that effect because President Nixon had already
left offce.)
Instead, we adopted a rule for all such suits, and we should
take a similar approach here. The rule should take into

838 TR
UMP v. VANCE
Alito, J., dissenting
account both the effect of subpoenas on the functioning of
the
Presidency and the risk that they will be used for
harassment.
I turn frst to the question of the effect of a state grand
jury subpoena for a President's records. When the issuance
of such a subpoena is part of an investigation that regards
the President as a “target” or “subject,”
9
the subpoena can
easily impair a President's “energetic performance of [his]
constitutional duties.” Cheney v. United States Dist. Court
for D. C., 542 U. S. 367, 382 (2004). Few individuals will sim-
ply brush off an indication that they may be within a prose-
cutor's crosshairs. Few will put the matter out of their
minds and go about their work unaffected. For many, the
prospect of prosecution will be the frst and last thing on
their minds every day.
We have come to expect our Presidents to shoulder bur-
dens that very few people could bear, but it is unrealistic to
think that the prospect of possible criminal prosecution will
not interfere with the performance of the duties of the offce.
“[C]riminal litigation uniquely requires [a] President's per-
sonal time and energy, and will inevitably entail a consider-
able if not overwhelming degree of mental preoccupation.”
Moss Memo 254 (emphasis deleted). See also Kavanaugh,
9
Respondent asserts that his offce has never characterized President
Trump as a “target” of the investigation, Brief for Respondent Vance 29,
n. 10, but by the same token, respondent has never said that the President
is not a “target.” Moreover, the terms “target” and “subject” have no
consistent legal meaning. The United States Attorney's Manual defnes
a “target” as “a person as to whom the prosecutor or the grand jury has
substantial evidence linking him or her to the commission of a crime and
who, in the judgment of the prosecutor, is a putative defendant.” Dept.
of Justice, Justice Manual, Section 9–11.151 (Jan. 2020), https://www.
justice.gov/jm/jm-9-11000-grand-jury#9-11.151/. “A `subject' of an inves-
tigation” is defned as “a person whose conduct is within the scope of the
grand jury's investigation.” Ibid. Of course, these defnitions are not
binding on the State of New York, but under them, it is apparent that the
President is at least a “subject.”

Cite
as: 591 U. S. 786 (2020)
839
Alito, J., dissenting
Separation of Powers During the Forty-Fourth Presidency
and
Beyond, 93 Minn. L. Rev. 1454, 1461 (2009) (“[A] Presi-
dent who is concerned about an ongoing criminal investi-
gation is almost inevitably going to do a worse job as
President”).
As for the potential use of subpoenas to harass, we need
not “ `exhibit a naiveté from which ordinary citizens are
free.' ” Department of Commerce v. New York, 588 U. S.
752, 785 (2019). As we have recognized, a President is “an
easily identifable target.” Fitzgerald, 457 U. S., at 752–753.
There are more than 2,300 local prosecutors and district
attorneys in the country.
10
Many local prosecutors are
elected, and many prosecutors have ambitions for higher
elected offce. (Respondent's famous predecessor Thomas
E. Dewey used the offce of District Attorney for New York
County as a springboard to the governorship of New York
and to the Republican nomination for President in 1944 and
1948.) If a sitting President is intensely unpopular in a par-
ticular district—and that is a common condition—targeting
the President may be an alluring and effective electoral
strategy. But it is a strategy that would undermine our
constitutional structure.
The Framers understood the importance of protecting the
Presidency from interference by the States. At the Consti-
tutional Convention, James Wilson argued that the President
should be “as independent as possible . . . of the States.” 1
Records of the Federal Convention of 1787, p. 69 (M. Farrand
ed. 1911). He and James Madison successfully opposed a
proposal to vest the impeachment power in state legisla-
tures, contending that this “would open a door for intrigues
agst. [the President] in States where his administration tho'
just might be unpopular, and might tempt him to pay court
to particular States whose leading partizans he might fear.”
Id., at 86. And to prevent a State from compromising a
10
Dept. of Justice, Bureau of Justice Statistics, Prosecutors in State
Courts, 2007—Statistical Tables 1 (Dec. 2011).

840 TR
UMP v. VANCE
Alito, J., dissenting
President's independence, the Convention adopted a provi-
si
on barring a President from receiving an “Emolument”
from any State, U. S. Const., Art. II, § 1, cl. 7. See The Fed-
eralist No. 73, at 494 (J. Cooke ed. 1961) (A. Hamilton).
Two centuries later, the Court's decision in Clinton re-
fected a similar concern. The Court held that a sitting
President could be sued in federal court, but the Court took
pains to reserve judgment on the question whether “a com-
parable claim might succeed in a state tribunal.” 520 U. S.,
at 691. “[A]ny direct control by a state court over the Presi-
dent,” the Court observed, might raise concerns about “pro-
tecting federal offcials from possible local prejudice.” Ibid.,
and n. 13.
D
In light of the above, a subpoena like the one now before
us should not be enforced unless it meets a test that takes
into account the need to prevent interference with a Presi-
dent's discharge of the responsibilities of the offce. I agree
with the Court that not all such subpoenas should be barred.
There may be situations in which there is an urgent and criti-
cal need for the subpoenaed information. The situation in
the Burr trial, where the documents at issue were sought by
a criminal defendant to defend against a charge of treason,
is a good example. But in a case like the one at hand, a
subpoena should not be allowed unless a heightened standard
is met.
Prior cases involving Presidential subpoenas have always
applied special, heightened standards. In the Burr trial,
Chief Justice Marshall was careful to note that “[i]n no case
of this kind would a court be required to proceed against the
president as against an ordinary individual,” and he held that
the subpoena to President Jefferson was permissible only be-
cause the prosecutor had shown that the materials sought
were “essential to the justice of the [pending criminal] case.”
United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC
Va. 1807) (brackets omitted).

Cite
as: 591 U. S. 786 (2020)
841
Alito, J., dissenting
In United States v. Nixon, 418 U. S. 683 (1974), where the
W
atergate Special Prosecutor subpoenaed tape recordings
and documents under the control of President Nixon, this
Court refused to quash the subpoena because there was a
“demonstrated, specifc need for [the] evidence in a pending
criminal trial.” Id., at 713. In an earlier Watergate-
related case where a Senate Committee subpoenaed Presi-
dent Nixon's White House tapes, the D. C. Circuit refused to
order their production because the Committee had failed to
show that “the subpoenaed evidence [wa]s demonstrably crit-
ical to the responsible fulfllment of the Committee's func-
tions.” Senate Select Comm. on Presidential Campaign
Activities v. Nixon, 498 F. 2d 725, 731 (1974). Later, when
an independent counsel investigating a Cabinet offcer
wanted to enforce a federal grand jury subpoena for privi-
leged materials held by the White House counsel, the D. C.
Circuit explained that enforcement demanded a “ `demon-
strated, specifc need' ” for the materials sought. In re
Sealed Case, 121 F. 3d 729, 736 (1997) (per curiam).
The important point is not that the subpoena in this case
should necessarily be governed by the particular tests used
in these cases, most of which involved offcial records that
were claimed to be privileged. Rather, the point is that we
should not treat this subpoena like an ordinary grand jury
subpoena and should not relegate a President to the meager
defenses that are available when an ordinary grand jury sub-
poena is challenged. But that, at bottom, is the effect of the
Court's decision.
The Presidency deserves greater protection. Thus, in a
case like this one, a prosecutor should be required (1) to pro-
vide at least a general description of the possible offenses
that are under investigation, (2) to outline how the subpoe-
naed records relate to those offenses, and (3) to explain why
it is important that the records be produced and why it is
necessary for production to occur while the President is still
in offce.

842 TR
UMP v. VANCE
Alito, J., dissenting
In the present case, the district attorney made a brief
proffer
, but important questions were left hanging. It
would not be unduly burdensome to insist on answers before
enforcing the subpoena.
One obvious question concerns the scope of the subpoena.
The subpoena issued by the grand jury is largely a copy of
the subpoenas issued by Committees of the House of Repre-
sentatives, and it would be quite a coincidence if the records
relevant to an investigation of possible violations of New
York criminal law just so happened to be almost identical to
the records thought by congressional Committees to be use-
ful in considering federal legislation. It is therefore appro-
priate to ask the district attorney to explain the need for the
various items that the subpoena covers.
The district attorney should also explain why it is impor-
tant that the information in question be obtained from the
President's records rather than another source. See, e. g.,
Nixon, 418 U. S., at 702; Sealed Case, 121 F. 3d, at 755. And
the district attorney should set out why he fnds it necessary
that the records be produced now as opposed to when the
President leaves offce. At argument, respondent's counsel
told us that his offce's concern is the expiration of the stat-
ute of limitations,
11
but there are potential solutions to that
problem. Even if New York law does not automatically sus-
pend the statute of limitations for prosecuting a President
until he leaves offce,
12
it may be possible to eliminate the
problem by waiver.
13
And if the prosecutor's statute-of-
11
Tr. of Oral Arg. 77, 102.
12
See N. Y. Crim. Proc. Law Ann. § 30.10(4)(a) (West 2010) (statute tolled
when defendant outside the jurisdiction); see also People v. Knobel, 94
N. Y. 2d 226, 230, 723 N. E. 2d 550, 552 (1999) (explaining New York rule
for tolling the limitations period when a defendant is “continuously out-
side” the State and concluding that “all periods of a day or more that a
nonresident defendant is out-of-State should be totaled and toll the Stat-
ute of Limitations”).
13
See People v. Parilla, 8 N. Y. 3d 654, 659, 870 N. E. 2d 142, 145 (2007);
R. Davis & T. Muskus, New York Practice With Forms, 33A Carmody-
Wait 2d § 186:34 (June 2020).

Cite
as: 591 U. S. 786 (2020)
843
Alito, J., dissenting
limitations concerns relate to parties other than the Presi-
dent,
he should be required to spell that out.
There may be other good reasons why immediate en-
forcement is important, such as the risk that evidence or
important leads will be lost, but if a prosecutor believes that
immediate enforcement is needed for such a reason, the
prosecutor should be required to provide a reasonably spe-
cifc explanation why that is so and why alternative means,
such as measures to preserve evidence and prevent spolia-
tion, would not suffce.
E
Unlike this rule, which would not undermine any legiti-
mate state interests, the opinion of the Court provides no
real protection for the Presidency. The Court discounts the
risk of harassment and assumes that state prosecutors will
observe constitutional limitations, ante, at 805–808, and I
also assume that the great majority of state prosecutors will
carry out their responsibilities responsibly. But for the rea-
sons noted, there is a very real risk that some will not.
The Court emphasizes the protection afforded by “long-
standing rules of grand jury secrecy,” ante, at 804, but that
is no answer to the burdens that subpoenas may infict, and
in any event, grand jury secrecy rules are of limited value
as safeguards against harassment. State laws on grand jury
secrecy vary and often do not set out disclosure restrictions
with the same specifcity as federal law.
14
Under New York law, the decision whether to disclose
grand jury evidence is committed to the discretion of the
supervising judge under a test that simply balances the need
for secrecy against “the public interest.” In re District At-
torney of Suffolk Cty., 58 N. Y. 2d 436, 444, 448 N. E. 2d 440,
443–444 (1983); see also People v. Fetcho, 91 N. Y. 2d 765,
769, 698 N. E. 2d 935, 938 (1998). That test provides no solid
protection for the Presidency. Reported New York deci-
sions do not deal with whether this test restricts disclosure
14
S. Beale et al., Grand Jury Law and Practice §§ 5:3–5:4 (2d ed. 2018).

844 TR
UMP v. VANCE
Alito, J., dissenting
to, among others, a congressional committee, the state legis-
lature
, or the state attorney general and her staff for the
purpose of civil litigation. Indeed, since New York legisla-
tors have attempted to enact laws to force the disclosure of
some of the subpoenaed information, it is not impossible to
imagine a trial judge's fnding that public disclosure is in the
“public interest.” And even where grand jury information
is not lawfully disclosed, confdential law enforcement infor-
mation is avidly sought by the media in high-profle cases,
leaks of such information are not uncommon, and those re-
sponsible are seldom called to account.
The Court notes that “grand juries are prohibited from
engaging ” in “ `fshing expeditions,' ” ante, at 805, but an ob-
jection on that ground is a very long shot under New York
law. In New York, a grand jury subpoena need not be sup-
ported by probable cause, In re Nassau Cty. Grand Jury
Subpoena Duces Tecum Dated June 24, 2003, 4 N. Y. 3d 665,
677–678, 830 N. E. 2d 1118, 1126 (2005), and a party seeking
to quash a subpoena must show that the documents sought
“ ` “can have no conceivable relevance to any legitimate ob-
ject of investigation.” ' ” In re Grand Jury Subpoenas for
Locals 17, 135, and 608, 72 N. Y. 2d 307, 317, 528 N. E. 2d
1195, 1201 (1988) (quoting Virag v. Hynes, 54 N. Y. 2d 437,
444, 430 N. E. 2d 1249, 1253 (1981)).
The Court says that a President can “argue that compli-
ance with a particular subpoena would impede his constitu-
tional duties,” ante, at 810 (emphasis added), but under the
Court's opinions in this case and Mazars, it is not easy to see
how such an argument could prevail. The Court makes clear
that any stigma or damage to a President's reputation does
not count, ante, at 803–804, and in Mazars, the Court states
that “burdens on the President's time and attention” are gen-
erally not of constitutional concern, 591 U. S., at 871. Else-
where in its opinion in this case, the Court takes the position
that when a President's non-offcial records are subpoenaed,
his treatment should be little different from that of any other

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as: 591 U. S. 786 (2020)
845
Alito, J., dissenting
subpoena recipient. Ante, at 807–808. The most that the
Cour
t holds out is the possibility that there might be some
unspecifed extraordinary circumstances under which a Pres-
ident might obtain relief.
Finally, the Court touts the ability of a President to chal-
lenge a subpoena by “ `an affrmative showing of impropri-
ety,' including `bad faith' ” or retaliation for offcial acts.
Ante, at 805. But “such objections are almost universally
overruled.” S. Beale et al., Grand Jury Law and Practice
§ 6:23, p. 6–243 (2d ed. 2014). Direct evidence of impropriety
is rarely obtainable, and it will be a challenge to make a
circumstantial case unless the prosecutor is required to pro-
vide the sort of showing outlined above.
For all practical purposes, the Court's decision places a
sitting President in the same unenviable position as any
other person whose records are subpoenaed by a grand jury.
See ante, at 807–808.
Attempting to justify this approach, the Court relies on
Marshall's ruling in the Burr trial, but the Court ignores
important differences between the situation in that case and
the situation here. First, the subpoena in Burr was not is-
sued by a grand jury at the behest of a prosecutor who was
investigating the President. Instead, a defendant who was
initially on trial for his life sought to obtain exculpatory evi-
dence from the very man who was orchestrating the prosecu-
tion. Ante, at 795. Marshall's ruling took note of the con-
text in which the evidence was sought. He stated: “If there
be a paper in the possession of the executive, which is not of
an offcial nature, he must stand, as respects that paper, in
nearly the same situation with any other individual who pos-
sesses a paper which might be required for the defence.”
Burr, 25 F. Cas., at 191 (emphasis added).
Second, it is signifcant that Burr, unlike the prosecutor in
the present case, did not have the option of postponing his
request for information until the President's term ended.
Burr had not chosen to be charged or tried while Jefferson

846 TR
UMP v. VANCE
Alito, J., dissenting
was in offce, and by the time Jefferson's tenure ended, his
tr
ial was history. Third, because the case was prosecuted
in federal court under federal law, it entirely lacked the fed-
eralism concerns that lie at the heart of the present case.
The lesson we should take from Marshall's jurisprudence
is the lesson of McCulloch—the importance of preventing
a State from undermining the lawful exercise of authority
conferred by the Constitution on the Federal Government.
There is considerable irony in the Court's invocation of Mar-
shall to defend a decision allowing a State's prosecutorial
power to run roughshod over the functioning of a branch of
the Federal Government.
The Court's other examples of Presidential subpoenas, far
from supporting the Court's holding, actually show that
usual procedures have been substantially altered in cases in-
volving Presidents. In every one of the examples, a Presi-
dent did not testify in person, as is almost always required
when a witness is subpoenaed to testify at a criminal trial or
before a grand jury, but instead was deposed. Ante, at 797–
798. The examples involving Presidents Ford and Carter
occurred under modern federal rules of procedure, and
allowing them to testify by deposition represented a sharp
departure from conventional practice.
15
15
When President Ford was subpoenaed as a defense witness in the trial
of a woman who had attempted to assassinate him, the District Court
ruled that Federal Rule of Criminal Procedure 15 allowed him to be de-
posed at a place of his choosing, instead of testifying in person, and pro-
vided for defense counsel but not the defendant herself to be present.
Then, as now, Rule 15 permits a witness to be deposed under “exceptional
circumstances” in order “to preserve testimony for trial.” This Rule is
generally used when a witness may not be available to testify at trial, not
simply when it would be burdensome or inconvenient for the witness to
appear. The judge's application of the Rule in this case was innovative.
In addition, the defendant was not present when President Ford was de-
posed. Repeating such a practice today might run into other obstacles.
See Coy v. Iowa, 487 U. S. 1012, 1020–1021 (1988); see also Rule 15(c) (pro-
viding for the defendant's presence during the deposition).
A similar procedure appears to have been followed when President Car-
ter testifed as a prosecution witness in a criminal trial. No reported case

Cite
as: 591 U. S. 786 (2020)
847
Alito, J., dissenting
The Court turns to United States v. Nixon, 418 U. S. 683,
but
that case arose under markedly different circumstances.
Because the trial was in federal court, there was no issue of
federalism, and the Court refused to order that the subpoena
be quashed because of “the demonstrated, specifc need for
evidence in a pending criminal trial.” Id., at 713. In the
case now before us, a “demonstrated, specifc need” is pre-
cisely what is lacking.
This Court's decision in Clinton v. Jones, 520 U. S. 681,
provides no greater support for today's decision. In that
case, as noted, the lawsuit was brought in federal, not state,
court, and while the subject of that particular civil suit
was embarrassing, the Court addressed the broad question
whether a President is immune from civil suits “ `in all but
the most exceptional cases.' ” Id., at 692. There is no ques-
tion that a criminal prosecution holds far greater potential
for distracting a President and diminishing his ability to
carry out his responsibilities than does the average civil
suit.
***
The subpoena at issue here is unprecedented. Never be-
fore has a local prosecutor subpoenaed the records of a sit-
ting President. The Court's decision threatens to impair the
functioning of the Presidency and provides no real protection
against the use of the subpoena power by the Nation's 2,300+
local prosecutors. Respect for the structure of Government
created by the Constitution demands greater protection for
an institution that is vital to the Nation's safety and well-
being.
I therefore respectfully dissent.
explains the legal authority cited as justifcation for excusing live testi-
mony, but Rule 15 may have been invoked. As for President Carter's
testimony by deposition before a grand jury, although neither the Fed-
eral Rules of Evidence nor the Confrontation Clause apply to federal
grand jury proceedings, testimony by deposition is nevertheless not the
norm.

848 OCTOBER
TERM, 2019
Syllabus
TRUMP et al. v. MAZARS USA, LLP, et al.
certiorari
to the united states court of appeals for
the district of columbia circuit
No. 19–715. Argued May 12, 2020—Decided July 9, 2020*
In April 2019, three committees of the U. S. House of Representatives
issued four subpoenas seeking information about the fnances of Presi-
dent Donald J. Trump, his children, and affliated businesses. The
House Committee on Financial Services issued a subpoena to Deutsche
Bank seeking any document related to account activity, due diligence,
foreign transactions, business statements, debt schedules, statements of
net worth, tax returns, and suspicious activity identifed by Deutsche
Bank. It issued a second subpoena to Capital One for similar informa-
tion. The Permanent Select Committee on Intelligence issued a sub-
poena to Deutsche Bank that mirrored the subpoena issued by the Fi-
nancial Services Committee. And the House Committee on Oversight
and Reform issued a subpoena to the President's personal accounting
frm, Mazars USA, LLP, demanding information related to the Presi-
dent and several affliated businesses. Although each of the commit-
tees sought overlapping sets of fnancial documents, each supplied dif-
ferent justifcations for the requests, explaining that the information
would help guide legislative reform in areas ranging from money laun-
dering and terrorism to foreign involvement in U. S. elections. Peti-
tioners—the President in his personal capacity, along with his children
and affliated businesses—contested the subpoena issued by the Over-
sight Committee in the District Court for the District of Columbia (Ma-
zars, No. 19–715) and the subpoenas issued by the Financial Services
and Intelligence Committees in the Southern District of New York
(Deutsche Bank, No. 19–760). In both cases, petitioners contended that
the subpoenas lacked a legitimate legislative purpose and violated the
separation of powers. The President did not, however, argue that any
of the requested records were protected by executive privilege.
In Mazars, the District Court granted judgment for the House and
the D. C. Circuit affrmed, fnding that the subpoena issued by the Over-
sight Committee served a valid legislative purpose because the re-
quested information was relevant to reforming fnancial disclosure re-
quirements for Presidents and presidential candidates. In Deutsche
*Together with No. 19–760, Trump et al. v. Deutsche Bank AG et al.,
on certiorari to the United States Court of Appeals for the Second Circuit.

Cite
as: 591 U. S. 848 (2020)
849
Syllabus
Bank, the District Court denied a preliminary injunction and the Second
Circuit
affrmed in substantial part, holding that the Intelligence Com-
mittee properly issued its subpoena to Deutsche Bank as part of an
investigation into alleged foreign infuence in the U. S. political process,
which could inform legislation to strengthen national security and com-
bat foreign meddling. The court also concluded that the subpoenas is-
sued by the Financial Services Committee to Deutsche Bank and Capital
One were adequately related to potential legislation on money launder-
ing, terrorist fnancing, and the global movement of illicit funds through
the real estate market.
Held: The courts below did not take adequate account of the signifcant
separation of powers concerns implicated by congressional subpoenas
for the President's information. Pp. 858–871.
(a) Historically, disputes over congressional demands for presidential
documents have been resolved by the political branches through negoti-
ation and compromise without involving this Court. The Court recog-
nizes that this dispute is the frst of its kind to reach the Court; that
such disputes can raise important issues concerning relations between
the branches; that similar disputes recur on a regular basis, including in
the context of deeply partisan controversy; and that Congress and the
Executive have nonetheless managed for over two centuries to resolve
these disputes among themselves without Supreme Court guidance.
Such longstanding practice “ `is a consideration of great weight' ” in
cases concerning “the allocation of power between [the] two elected
branches of Government,” and it imposes on the Court a duty of care to
ensure that it does not needlessly disturb “the compromises and work-
ing arrangements” reached by those branches. NLRB v. Noel Canning,
573 U. S. 513, 524–526 (quoting The Pocket Veto Case, 279 U. S. 655, 689).
Pp. 858–862.
(b) Each House of Congress has the power “to secure needed informa-
tion” in order to legislate. McGrain v. Daugherty, 273 U. S. 135, 161.
This power is “indispensable” because, without information, Congress
would be unable to legislate wisely or effectively. Watkins v. United
States, 354 U. S. 178, 215. Because this power is “justifed solely as an
adjunct to the legislative process,” it is subject to several limitations.
Id., at 197. Most importantly, a congressional subpoena is valid only if
it is “related to, and in furtherance of, a legitimate task of the Con-
gress.” Id., at 187. The subpoena must serve a “valid legislative pur-
pose.” Quinn v. United States, 349 U. S. 155, 161. Furthermore, Con-
gress may not issue a subpoena for the purpose of “law enforcement,”
because that power is assigned to the Executive and the Judiciary.
Ibid. Finally, recipients of congressional subpoenas retain their consti-

850 TR
UMP v. MAZARS USA, LLP
Syllabus
tutional rights and various privileges throughout the course of an inves-
tigati
on. Pp. 862–863.
(c) The President contends, as does the Solicitor General on behalf
of the United States, that congressional subpoenas for the President's
information should be evaluated under the standards set forth in United
States v. Nixon, 418 U. S. 683, and Senate Select Committee on Presi-
dential Campaign Activities v. Nixon, 498 F. 2d 725, which would re-
quire the House to show that the requested information satisfes a “dem-
onstrated, specifc need,” 418 U. S., at 713, and is “demonstrably critical”
to a legislative purpose, 498 F. 2d, at 731. Nixon and Senate Select
Committee, however, involved subpoenas for communications between
the President and his close advisers, over which the President asserted
executive privilege. Because executive privilege safeguards the public
interest in candid, confidential deliberations within the Executive
Branch, information subject to the privilege deserves “the greatest pro-
tection consistent with the fair administration of justice.” 418 U. S., at
715. That protection should not be transplanted root and branch to
cases involving nonprivileged, private information, which by defnition
does not implicate sensitive Executive Branch deliberations. The
standards proposed by the President and the Solicitor General—if ap-
plied outside the context of privileged information—would risk seri-
ously impeding Congress in carrying out its responsibilities, giving
short shrift to its important interests in conducting inquiries to obtain
information needed to legislate effectively. Pp. 863–865.
(d) The approach proposed by the House, which relies on precedents
that did not involve the President's papers, fails to take adequate ac-
count of the signifcant separation of powers issues raised by congres-
sional subpoenas for the President's information. The House's approach
would leave essentially no limits on the congressional power to subpoena
the President's personal records. A limitless subpoena power could
transform the established practice of the political branches and allow
Congress to aggrandize itself at the President's expense. These separa-
tion of powers concerns are unmistakably implicated by the subpoenas
here, which represent not a run-of-the-mill legislative effort but rather
a clash between rival branches of government over records of intense
political interest for all involved. The interbranch confict does not van-
ish simply because the subpoenas seek personal papers or because the
President sued in his personal capacity. Nor are separation of powers
concerns less palpable because the subpoenas were issued to third par-
ties. Pp. 865–868.
(e) Neither side identifes an approach that adequately accounts for
these weighty separation of powers concerns. A balanced approach is

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as: 591 U. S. 848 (2020)
851
Syllabus
necessary, one that takes a “considerable impression” from “the practice
of
the government,” McCulloch v. Maryland, 4 Wheat. 316, 401, and
“resist[s]” the “pressure inherent within each of the separate Branches
to exceed the outer limits of its power,” INS v. Chadha, 462 U. S. 919,
951. In assessing whether a subpoena directed at the President's per-
sonal information is “related to, and in furtherance of, a legitimate task
of the Congress,” Watkins, 354 U. S., at 187, courts must take adequate
account of the separation of powers principles at stake, including both
the signifcant legislative interests of Congress and the unique position
of the President.
Several special considerations inform this analysis. First, courts
should carefully assess whether the asserted legislative purpose war-
rants the signifcant step of involving the President and his papers.
“ ` [O]ccasi on[s] for constituti ona l confront ati on between the two
branches' should be avoided whenever possible.” Cheney v. United
States Dist. Court for D. C., 542 U. S. 367, 389–390 (quoting Nixon, 418
U. S., at 692). Congress may not rely on the President's information if
other sources could reasonably provide Congress the information it
needs in light of its particular legislative objective. Second, to narrow
the scope of possible confict between the branches, courts should insist
on a subpoena no broader than reasonably necessary to support Con-
gress's legislative objective. The specifcity of the subpoena's request
“serves as an important safeguard against unnecessary intrusion into
the operation of the Offce of the President.” Cheney, 542 U. S., at 387.
Third, courts should be attentive to the nature of the evidence offered
by Congress to establish that a subpoena advances a valid legislative
purpose. The more detailed and substantial, the better. That is par-
ticularly true when Congress contemplates legislation that raises sensi-
tive constitutional issues, such as legislation concerning the Presidency.
Fourth, courts should assess the burdens imposed on the President by
a subpoena, particularly because they stem from a rival political branch
that has an ongoing relationship with the President and incentives to
use subpoenas for institutional advantage. Other considerations may
be pertinent as well; one case every two centuries does not afford
enough experience for an exhaustive list. Pp. 869–871.
No. 19 –715, 940 F. 3d 710; No. 19 –760, 943 F. 3d 627, vacated and
remanded.
Roberts, C. J., delivered the opinion of the Court, in which Ginsburg,
Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., joined.
Thomas, J., post, p. 871, and Alito, J., post, p. 891, fi led dissenti ng
opinions.

852 TR
UMP v. MAZARS USA, LLP
Counsel
Patrick Strawbridge argued the cause for petitioners.
W
ith him on the briefs were William S. Consovoy, Thomas
R. McCarthy, Jay Alan Sekulow, Stuart J. Roth, Jordan Sek-
ulow, and Stefan C. Passantino.
Deputy Solicitor General Wall argued the cause for the
United States as amicus curiae urging reversal. With him
on the briefs were Solicitor General Francisco, Assistant
Attorney General Hunt, Deputy Assistant Attorney General
Mooppan, Sopan Joshi, Mark R. Freeman, and Gerard J.
Sinzdak.
Douglas N. Letter argued the cause for the Committees
of the United States House of Representatives respondents.
With him on the briefs were Megan Barbero, Adam A.
Grogg, Lawrence S. Robbins, Roy T. Englert, Jr., Alan D.
Strasser, Jennifer S. Windom, and Brandon L. Arnold.†
†Briefs of amici curiae urging reversal in both cases were fled for
Christian Family Coalition Florida, Inc., by Dennis Grossman; for the
Eagle Forum Education & Legal Defense Fund by Lawrence J. Joseph;
for the Foundation for Moral Law by Matthew J. Clark; and for W. Bur-
lette Carter, by Ms. Carter, pro se.
Briefs of amici curiae urging affrmance in both cases were fled for
the American Civil Liberties Union et al. by Donald B. Verrilli, Jr., David
D. Co l e, Ar thur B. Sp i tze r, Sco t t M i ch elm an, and Jennesa Ca l vo-
Friedman; for Bipartisan Former Members of Congress by Andre M.
Mura; for the Center for Media and Democracy et al. by Andrew J. Good-
man and Benjamin J. Hodges; for Congressional Scholars by Gregory M.
Lipper and Susan M. Simpson; for the Constitutional Accountability Cen-
ter by Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and
Ashwin P. Phatak; for Former Federal Ethics Offcials by Dwayne D. Sam
and Patricia E. Roberts; for Former House General Counsels et al. by
John A. Freedman and Andrew T. Tutt; for Former National Security
Offcials by Harold Hongju Koh; for Former Senior Department of Justice
Offcials by Rakesh N. Kilaru and Chanakya A. Sethi; for the Lugar
Center et al. by William Pittard; for the Niskanen Center et al. by
Gregory Edwin Wol ff and Ben Feuer; for Public Citizen by Allison M.
Zieve, Adam R. Pulver, Scott L. Nelson, and Kaitlin E. Leary; for
Separation-of-Powers Law Professors by Zachary D. Tripp, Martin S.
Lederman, pro se, and Gregory Silbert; and for Sean J. Kealy et al. by
Mr. Kealy and James J. Wheaton, both pro se. Steven E. Fineman, Daniel

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as: 591 U. S. 848 (2020)
853
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
Over the course of fve days in April 2019, three commit-
tees of the U. S. House of Representatives issued four sub-
poenas seeking information about the fnances of President
Donald J. Trump, his children, and affliated businesses. We
have held that the House has authority under the Constitu-
tion to issue subpoenas to assist it in carrying out its legisla-
tive responsibilities. The House asserts that the fnancial
information sought here—encompassing a decade's worth of
transactions by the President and his family—will help guide
legislative reform in areas ranging from money laundering
and terrorism to foreign involvement in U. S. elections. The
President contends that the House lacked a valid legislative
aim and instead sought these records to harass him, expose
personal matters, and conduct law enforcement activities be-
yond its authority. The question presented is whether the
subpoenas exceed the authority of the House under the
Constitution.
We have never addressed a congressional subpoena for the
President's information. Two hundred years ago, it was es-
tablished that Presidents may be subpoenaed during a fed-
eral criminal proceeding, United States v. Burr, 25 F. Cas.
30 (No. 14,692d) (CC Va. 1807) (Marshall, Cir. J.), and earlier
today we extended that ruling to state criminal proceedings,
Trump v. Vance, 591 U. S. 786 (2020). Nearly ffty years
ago, we held that a federal prosecutor could obtain informa-
tion from a President despite assertions of executive privi-
lege, United States v. Nixon, 418 U. S. 683 (1974), and more
recently we ruled that a private litigant could subject a Pres-
ident to a damages suit and appropriate discovery obliga-
tions in federal court, Clinton v. Jones, 520 U. S. 681 (1997).
P. Chiplock, and Jonathan J. Rusch, pro se, fled a brief for Financial
Investigation and Money Laundering Experts as amici curiae in No. 19–
760 urging affrmance.
Victor Williams, pro se, fled a brief of amicus curiae.

854 TR
UMP v. MAZARS USA, LLP
Opinion of the Court
This case is different. Here the President's information
is
sought not by prosecutors or private parties in connection
with a particular judicial proceeding, but by committees of
Congress that have set forth broad legislative objectives.
Congress and the President—the two political branches es-
tablished by the Constitution—have an ongoing relationship
that the Framers intended to feature both rivalry and reci-
procity. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961)
(J. Madison); Youngstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579, 635 (1952) (Jackson, J., concurring). That distinc-
tive aspect necessarily informs our analysis of the question
before us.
I
A
Each of the three committees sought overlapping sets of
fnancial documents, but each supplied different justifcations
for the requests.
The House Committee on Financial Services issued two
subpoenas, both on April 11, 2019. App. 128, 154, 226. The
frst, issued to Deutsche Bank, seeks the fnancial informa-
tion of the President, his children, their immediate family
members, and several affliated business entities. Specif-
cally, the subpoena seeks any document related to account
activity, due diligence, foreign transactions, business state-
ments, debt schedules, statements of net worth, tax returns,
and suspicious activity identifed by Deutsche Bank. The
second, issued to Capital One, demands similar fnancial in-
formation with respect to more than a dozen business enti-
ties associated with the President. The Deutsche Bank sub-
poena requests materials from “2010 through the present,”
and the Capital One subpoena covers “2016 through the pres-
ent,” but both subpoenas impose no time limitations for cer-
tain documents, such as those connected to account openings
and due diligence. Id., at 128, 155.
According to the House, the Financial Services Committee
issued these subpoenas pursuant to House Resolution 206,

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which called for “efforts to close loopholes that allow corrup-
ti
on, terrorism, and money laundering to infltrate our coun-
try's fnancial system.” H. Res. 206, 116th Cong., 1st Sess.,
5 (Mar. 13, 2019). Such loopholes, the resolution explained,
had allowed “illicit money, including from Russian oligarchs,”
to fow into the United States through “anonymous shell
companies” using investments such as “luxury high-end real
estate.” Id., at 3. The House also invokes the oversight
plan of the Financial Services Committee, which stated that
the Committee intends to review banking regulation and
“examine the implementation, effectiveness, and enforce-
ment” of laws designed to prevent money laundering and the
fnancing of terrorism. H. R. Rep. No. 116–40, p. 84 (2019).
The plan further provided that the Committee would “con-
sider proposals to prevent the abuse of the fnancial system”
and “address any vulnerabilities identifed” in the real estate
market. Id., at 85.
On the same day as the Financial Services Committee, the
Permanent Select Committee on Intelligence issued an iden-
tical subpoena to Deutsche Bank—albeit for different rea-
sons. According to the House, the Intelligence Committee
subpoenaed Deutsche Bank as part of an investigation into
foreign efforts to undermine the U. S. political process.
Committee Chairman Adam Schiff had described that inves-
tigation in a previous statement, explaining that the Com-
mittee was examining alleged attempts by Russia to infu-
ence the 2016 election; potential links between Russia and
the President's campaign; and whether the President and his
associates had been compromised by foreign actors or inter-
ests. Press Release, House Permanent Select Committee on
Intelligence, Chairman Schiff Statement on House Intelli-
gence Committee Investigation (Feb. 6, 2019). Chairman
Schiff added that the Committee planned “to develop legisla-
tion and policy reforms to ensure the U. S. government is
better positioned to counter future efforts to undermine our
political process and national security.” Ibid.

856 TR
UMP v. MAZARS USA, LLP
Opinion of the Court
Four days after the Financial Services and Intelligence
Committees,
the House Committee on Oversight and Reform
issued another subpoena, this time to the President's per-
sonal accounting frm, Mazars USA, LLP. The subpoena de-
manded information related to the President and several af-
fliated business entities from 2011 through 2018, including
statements of fnancial condition, independent auditors' re-
ports, fnancial reports, underlying source documents, and
communications between Mazars and the President or his
businesses. The subpoena also requested all engagement
agreements and contracts “[w]ithout regard to time.” App.
to Pet. for Cert. in 19–715, p. 230.
Chairman Elijah Cummings explained the basis for the
subpoena in a memorandum to the Oversight Committee.
According to the chairman, recent testimony by the Presi-
dent's former personal attorney Michael Cohen, along with
several documents prepared by Mazars and supplied by
Cohen, raised questions about whether the President had ac-
curately represented his fnancial affairs. Chairman Cum-
mings asserted that the Committee had “full authority to
investigate” whether the President: (1) “may have engaged
in illegal conduct before and during his tenure in offce,”
(2) “has undisclosed conficts of interest that may impair his
ability to make impartial policy decisions,” (3) “is complying
with the Emoluments Clauses of the Constitution,” and
(4) “has accurately reported his fnances to the Offce of Gov-
ernment Ethics and other federal entities.” App. in No. 19–
5142 (CADC), p. 107. “The Committee's interest in these
matters,” Chairman Cummings concluded, “informs its re-
view of multiple laws and legislative proposals under our ju-
risdiction.” Ibid.
B
Petitioners—the President in his personal capacity, along
with his children and affliated businesses—fled two suits
challenging the subpoenas. They contested the subpoena is-
sued by the Oversight Committee in the District Court for

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857
Opinion of the Court
the District of Columbia (Mazars, No. 19–715), and the sub-
poenas
issued by the Financial Services and Intelligence
Committees in the Southern District of New York (Deutsche
Bank, No. 19–760). In both cases, petitioners contended
that the subpoenas lacked a legitimate legislative purpose
and violated the separation of powers. The President did
not, however, resist the subpoenas by arguing that any of
the requested records were protected by executive privilege.
For relief, petitioners asked for declaratory judgments and
injunctions preventing Mazars and the banks from comply-
ing with the subpoenas. Although named as defendants,
Mazars and the banks took no positions on the legal issues
in these cases, and the House committees intervened to de-
fend the subpoenas.
Petitioners' challenges failed. In Mazars, the District
Court granted judgment for the House, 380 F. Supp. 3d 76
(DC 2019), and the D. C. Circuit affrmed, 940 F. 3d 710
(2019). In upholding the subpoena issued by the Oversight
Committee to Mazars, the Court of Appeals found that the
subpoena served a “valid legislative purpose” because the
requested information was relevant to reforming fnancial
disclosure requirements for Presidents and presidential can-
didates. Id., at 726–742 (internal quotation marks omitted).
Judge Rao dissented. As she saw it, the “gravamen” of the
subpoena was investigating alleged illegal conduct by the
President, and the House must pursue such wrongdoing
through its impeachment powers, not its legislative powers.
Id., at 773–774. Otherwise, the House could become a “rov-
ing inquisition over a co-equal branch of government.” Id.,
at 748. The D. C. Circuit denied rehearing en banc over
several more dissents. 941 F. 3d 1180, 1180–1182 (2019).
In Deutsche Bank, the District Court denied a preliminary
injunction, 2019 WL 2204898 (SDNY, May 22, 2019), and the
Second Circuit affrmed “in substantial part,” 943 F. 3d 627,
676 (2019). While acknowledging that the subpoenas are
“surely broad in scope,” the Court of Appeals held that the

858 TR
UMP v. MAZARS USA, LLP
Opinion of the Court
Intelligence Committee properly issued its subpoena to
D
eutsche Bank as part of an investigation into alleged for-
eign infuence over petitioners and Russian interference with
the U. S. political process. Id., at 650, 658–659. That inves-
tigation, the court concluded, could inform legislation to com-
bat foreign meddling and strengthen national security. Id.,
at 658–659, and n. 59.
As to the subpoenas issued by the Financial Services Com-
mittee to Deutsche Bank and Capital One, the Court of Ap-
peals concluded that they were adequately related to poten-
tial legislation on money laundering, terrorist fnancing, and
the global movement of illicit funds through the real estate
market. Id., at 656–659. Rejecting the contention that the
subpoenas improperly targeted the President, the court ex-
plained in part that the President's fnancial dealings with
Deutsche Bank made it “appropriate” for the House to use
him as a “case study” to determine “whether new legislation
is needed.” Id., at 662–663, n. 67.
1
Judge Livingston dissented, seeing no “clear reason why a
congressional investigation aimed generally at closing regu-
latory loopholes in the banking system need focus on over a
decade of fnancial information regarding this President, his
family, and his business affairs.” Id., at 687.
We granted certiorari in both cases and stayed the judg-
ments below pending our decision. 589 U. S. 1120 (2019).
II
A
The question presented is whether the subpoenas exceed
the authority of the House under the Constitution. Histori-
1
The Court of Appeals directed a “limited” remand for the District
Court to consider whether it was necessary to disclose certain “sensitive
personal details” (such as documents refecting medical services received
by employees of the Trump business entities) and a “few” documents that
might not relate to the committees' legislative purposes. 943 F. 3d 627,
667–668, 675 (2019). The Court of Appeals ordered that all other docu-
ments be “promptly transmitted” to the committees. Id., at 669.

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859
Opinion of the Court
cally, disputes over congressional demands for presidential
documents
have not ended up in court. Instead, they have
been hashed out in the “hurly-burly, the give-and-take of the
political process between the legislative and the executive.”
Hearings on S. 2170 et al. before the Subcommittee on Inter-
governmental Relations of the Senate Committee on Govern-
ment Operations, 94th Cong., 1st Sess., 87 (1975) (A. Scalia,
Assistant Attorney General, Offce of Legal Counsel).
That practice began with George Washington and the
early Congress. In 1792, a House committee requested Ex-
ecutive Branch documents pertaining to General St. Clair's
campaign against the Indians in the Northwest Territory,
which had concluded in an utter rout of federal forces when
they were caught by surprise near the present-day border
between Ohio and Indiana. See T. Taylor, Grand Inquest:
The Story of Congressional Investigations 19–23 (1955).
Since this was the frst such request from Congress, Presi-
dent Washington called a Cabinet meeting, wishing to take
care that his response “be rightly conducted” because it
could “become a precedent.” 1 Writings of Thomas Jeffer-
son 189 (P. Ford ed. 1892).
The meeting, attended by the likes of Alexander Hamilton,
Thomas Jefferson, Edmund Randolph, and Henry Knox,
ended with the Cabinet of “one mind”: The House had au-
thority to “institute inquiries” and “call for papers” but the
President could “exercise a discretion” over disclosures,
“communicat[ing] such papers as the public good would per-
mit” and “refus[ing]” the rest. Id., at 189–190. President
Washington then dispatched Jefferson to speak to individual
congressmen and “bring them by persuasion into the right
channel.” Id., at 190. The discussions were apparently
fruitful, as the House later narrowed its request and the doc-
uments were supplied without recourse to the courts. See
3 Annals of Cong. 536 (1792); Taylor, supra, at 24.
Jefferson, once he became President, followed Washing-
ton's precedent. In early 1807, after Jefferson had disclosed

860 TR
UMP v. MAZARS USA, LLP
Opinion of the Court
that “sundry persons” were conspiring to invade Spanish ter-
r
itory in North America with a private army, 16 Annals of
Cong. 686–687, the House requested that the President pro-
duce any information in his possession touching on the con-
spiracy (except for information that would harm the public
interest), id., at 336, 345, 359. Jefferson chose not to di-
vulge the entire “voluminous” correspondence on the subject,
explaining that much of it was “private” or mere “rumors” and
“neither safety nor justice” permitted him to “expos[e] names”
apart from identifying the conspiracy's “principal actor”:
Aaron Burr. Id., at 39–40. Instead of the entire correspon-
dence, Jefferson sent Congress particular documents and a
special message summarizing the conspiracy. Id., at 39–43;
see generally Vance, 591 U. S., at 793–794. Neither Con-
gress nor the President asked the Judiciary to intervene.
2
Ever since, congressional demands for the President's in-
formation have been resolved by the political branches with-
out involving this Court. The Reagan and Clinton presiden-
cies provide two modern examples:
During the Reagan administration, a House subcommittee
subpoenaed all documents related to the Department of the
Interior's decision whether to designate Canada a reciprocal
country for purposes of the Mineral Lands Leasing Act.
President Reagan directed that certain documents be with-
held because they implicated his confdential relationship
with subordinates. While withholding those documents, the
administration made “repeated efforts” at accommodation
through limited disclosures and testimony over a period of
several months. 6 Op. of Offce of Legal Counsel 751, 780
(1982). Unsatisfed, the subcommittee and its parent com-
mittee eventually voted to hold the Secretary of the Interior
2
By contrast, later that summer, the Judiciary was called on to resolve
whether President Jefferson could be issued a subpoena duces tecum arising
from Burr's criminal trial. See United States v. Burr, 25 F. Cas. 30
(No. 14,692d) (CC Va. 1807); see also Trump v. Vance, 591 U. S. 786, 795–797
(2020).

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Opinion of the Court
in contempt, and an innovative compromise soon followed:
Al
l documents were made available, but only for one day
with no photocopying, minimal notetaking, and no participa-
tion by non-Members of Congress. Id., at 780–781; see
H. R. Rep. No. 97–898, pp. 3–8 (1982).
In 1995, a Senate committee subpoenaed notes taken by a
White House attorney at a meeting with President Clinton's
personal lawyers concerning the Whitewater controversy.
The President resisted the subpoena on the ground that the
notes were protected by attorney-client privilege, leading to
“long and protracted” negotiations and a Senate threat to
seek judicial enforcement of the subpoena. S. Rep. No. 104–
204, pp. 16–17 (1996). Eventually the parties reached an
agreement, whereby President Clinton avoided the threat-
ened suit, agreed to turn over the notes, and obtained the
Senate's concession that he had not waived any privileges.
Ibid.; see L. Fisher, Congressional Research Service, Con-
gressional Investigations: Subpoenas and Contempt Power
16–18 (2003).
Congress and the President maintained this tradition of
negotiation and compromise—without the involvement of
this Court—until the present dispute. Indeed, from Presi-
dent Washington until now, we have never considered a dis-
pute over a congressional subpoena for the President's rec-
ords. And, according to the parties, the appellate courts
have addressed such a subpoena only once, when a Senate
committee subpoenaed President Nixon during the Water-
gate scandal. See infra, at 864 (discussing Senate Select
Committee on Presidential Campaign Activities v. Nixon,
498 F. 2d 725 (CADC 1974) (en banc)). In that case, the
court refused to enforce the subpoena, and the Senate did
not seek review by this Court.
This dispute therefore represents a signifcant departure
from historical practice. Although the parties agree that
this particular controversy is justiciable, we recognize that
it is the frst of its kind to reach this Court; that disputes

862 TR
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Opinion of the Court
of this sort can raise important issues concerning relations
between
the branches; that related disputes involving con-
gressional efforts to seek offcial Executive Branch informa-
tion recur on a regular basis, including in the context of
deeply partisan controversy; and that Congress and the Ex-
ecutive have nonetheless managed for over two centuries to
resolve such disputes among themselves without the beneft
of guidance from us. Such longstanding practice “ `is a con-
sideration of great weight' ” in cases concerning “the alloca-
tion of power between [the] two elected branches of Govern-
ment,” and it imposes on us a duty of care to ensure that
we not needlessly disturb “the compromises and working
arrangements that [those] branches . . . themselves have
reached.” NLRB v. Noel Canning, 573 U. S. 513, 524–
526 (2014) (quoting The Pocket Veto Case, 279 U. S. 655,
689 (1929)). With that in mind, we turn to the question
presented.
B
Congress has no enumerated constitutional power to con-
duct investigations or issue subpoenas, but we have held that
each House has power “to secure needed information” in
order to legislate. McGrain v. Daugherty, 273 U. S. 135, 161
(1927). This “power of inquiry—with process to enforce it—
is an essential and appropriate auxiliary to the legislative
function. ” Id., at 174. Without information, Congress
would be shooting in the dark, unable to legislate “wisely or
effectively.” Id., at 175. The congressional power to obtain
information is “broad” and “indispensable.” Watkins v.
United States, 354 U. S. 178, 187, 215 (1957). It encompasses
inquiries into the administration of existing laws, studies of
proposed laws, and “surveys of defects in our social, eco-
nomic or political system for the purpose of enabling the
Congress to remedy them.” Id., at 187.
Because this power is “justifed solely as an adjunct to the
legislative process,” it is subject to several limitations. Id.,
at 197. Most importantly, a congressional subpoena is valid

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Opinion of the Court
only if it is “related to, and in furtherance of, a legitimate
t
ask of the Congress.” Id., at 187. The subpoena must
serve a “valid legislative purpose,” Quinn v. United States,
349 U. S. 155, 161 (1955); it must “concern[ ] a subject on
which legislation `could be had,' ” Eastland v. United States
Servicemen's Fund, 421 U. S. 491, 506 (1975) (quoting Mc-
Grain, 273 U. S., at 177).
Furthermore, Congress may not issue a subpoena for the
purpose of “law enforcement,” because “those powers are
assigned under our Constitution to the Executive and the
Judiciary.” Quinn, 349 U. S., at 161. Thus Congress may
not use subpoenas to “try” someone “before [a] committee
for any crime or wrongdoing.” McGrain, 273 U. S., at 179.
Congress has no “ `general' power to inquire into private af-
fairs and compel disclosures,” id., at 173–174, and “there is
no congressional power to expose for the sake of exposure,”
Watkins, 354 U. S., at 200. “Investigations conducted solely
for the personal aggrandizement of the investigators or to
`punish' those investigated are indefensible.” Id., at 187.
Finally, recipients of legislative subpoenas retain their
constitutional rights throughout the course of an investiga-
tion. See id., at 188, 198. And recipients have long been
understood to retain common law and constitutional privi-
leges with respect to certain materials, such as attorney-
client communications and governmental communications
protected by executive privilege. See, e. g., Congressional
Research Service, supra, at 16–18 (attorney-client privilege);
Senate Select Committee, 498 F. 2d, at 727, 730–731 (execu-
tive privilege).
C
The President contends, as does the Solicitor General ap-
pearing on behalf of the United States, that the usual rules
for congressional subpoenas do not govern here because the
President's papers are at issue. They argue for a more de-
manding standard based in large part on cases involving the
Nixon tapes—recordings of conversations between President

864 TR
UMP v. MAZARS USA, LLP
Opinion of the Court
Nixon and close advisers discussing the break-in at the Dem-
ocratic
National Committee's headquarters at the Watergate
complex. The tapes were subpoenaed by a Senate commit-
tee and the Special Prosecutor investigating the break-in,
prompting President Nixon to invoke executive privilege and
leading to two cases addressing the showing necessary to
require the President to comply with the subpoenas. See
Nixon, 418 U. S. 683; Senate Select Committee, 498 F. 2d 725.
Those cases, the President and the Solicitor General now
contend, establish the standard that should govern the House
subpoenas here. Quoting Nixon, the President asserts that
the House must establish a “demonstrated, specifc need” for
the fnancial information, just as the Watergate Special
Prosecutor was required to do in order to obtain the tapes.
418 U. S., at 713. And drawing on Senate Select Commit-
tee—the D. C. Circuit case refusing to enforce the Senate
subpoena for the tapes—the President and the Solicitor Gen-
eral argue that the House must show that the fnancial infor-
mation is “demonstrably critical” to its legislative purpose.
498 F. 2d, at 731.
We disagree that these demanding standards apply here.
Unlike the cases before us, Nixon and Senate Select Com-
mittee involved Oval Offce communications over which the
President asserted executive privilege. That privilege safe-
guards the public interest in candid, confdential delibera-
tions within the Executive Branch; it is “fundamental to the
operation of Government.” Nixon, 418 U. S., at 708. As a
result, information subject to executive privilege deserves
“the greatest protection consistent with the fair administra-
tion of justice.” Id., at 715. We decline to transplant that
protection root and branch to cases involving nonprivileged,
private information, which by defnition does not implicate
sensitive Executive Branch deliberations.
The standards proposed by the President and the Solicitor
General—if applied outside the context of privileged infor-
mation—would risk seriously impeding Congress in carrying

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out its responsibilities. The President and the Solicitor
Genera
l would apply the same exacting standards to all sub-
poenas for the President's information, without recognizing
distinctions between privileged and nonprivileged informa-
tion, between offcial and personal information, or between
various legislative objectives. Such a categorical approach
would represent a signifcant departure from the longstand-
ing way of doing business between the branches, giving
short shrift to Congress's important interests in conducting
inquiries to obtain the information it needs to legislate effec-
tively. Confounding the legislature in that effort would be
contrary to the principle that:
“It is the proper duty of a representative body to look
diligently into every affair of government and to talk
much about what it sees. It is meant to be the eyes
and the voice, and to embody the wisdom and will of
its constituents. Unless Congress have and use every
means of acquainting itself with the acts and the disposi-
tion of the administrative agents of the government,
the country must be helpless to learn how it is being
served.” United States v. Rumely, 345 U. S. 41, 43
(1953) (internal quotation marks omitted).
Legislative inquiries might involve the President in appro-
priate cases; as noted, Congress's responsibilities extend to
“every affair of government. ” Ibid. (internal quotation
marks omitted). Because the President's approach does not
take adequate account of these signifcant congressional in-
terests, we do not adopt it.
D
The House meanwhile would have us ignore that these
suits involve the President. Invoking our precedents con-
cerning investigations that did not target the President's pa-
pers, the House urges us to uphold its subpoenas because
they “relate[ ] to a valid legislative purpose” or “concern[ ] a
subject on which legislation could be had.” Brief for Re-

866 TR
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spondent 46 (quoting Barenblatt v. United States, 360 U. S.
109,
127 (1959), and Eastland, 421 U. S., at 506). That ap-
proach is appropriate, the House argues, because the cases
before us are not “momentous separation-of-powers dis-
putes.” Brief for Respondent 1.
Largely following the House's lead, the courts below
treated these cases much like any other, applying precedents
that do not involve the President's papers. See 943 F. 3d,
at 656–670; 940 F. 3d, at 724–742. The Second Circuit con-
cluded that “this case does not concern separation of powers”
because the House seeks personal documents and the Presi-
dent sued in his personal capacity. 943 F. 3d, at 669. The
D. C. Circuit, for its part, recognized that “separation-of-
powers concerns still linger in the air,” and therefore it did
not afford deference to the House. 940 F. 3d, at 725–726.
But, because the House sought only personal documents, the
court concluded that the case “present[ed] no direct inter-
branch dispute.” Ibid.
The House's approach fails to take adequate account of the
signifcant separation of powers issues raised by congres-
sional subpoenas for the President's information. Congress
and the President have an ongoing institutional relationship
as the “opposite and rival” political branches established by
the Constitution. The Federalist No. 51, at 349. As a re-
sult, congressional subpoenas directed at the President differ
markedly from congressional subpoenas we have previously
reviewed, e. g., Barenblatt, 360 U. S., at 127; Eastland, 421
U. S., at 506, and they bear little resemblance to criminal
subpoenas issued to the President in the course of a specifc
investigation, see Vance, 591 U. S. 786; Nixon, 418 U. S. 683.
Unlike those subpoenas, congressional subpoenas for the
President's i nfor mati on unavoidably pit the pol itica l
branches against one another. Cf. In re Sealed Case, 121
F. 3d 729, 753 (CADC 1997) (“The President's ability to with-
hold information from Congress implicates different constitu-

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867
Opinion of the Court
tional considerations than the President's ability to withhold
e
vidence in judicial proceedings.”).
Far from accounting for separation of powers concerns, the
House's approach aggravates them by leaving essentially no
limits on the congressional power to subpoena the Presi-
dent's personal records. Any personal paper possessed by
a President could potentially “relate to” a conceivable sub-
ject of legislation, for Congress has broad legislative powers
that touch a vast number of subjects. Brief for Respondent
46. The President's fnancial records could relate to eco-
nomic reform, medical records to health reform, school tran-
scripts to education reform, and so on. Indeed, at argu-
ment, the House was unable to identify any type of
information that lacks some relation to potential legislation.
See Tr. of Oral Arg. 52–53, 62–65.
Without limits on its subpoena powers, Congress could
“exert an imperious controul” over the Executive Branch
and aggrandize itself at the President's expense, just as the
Framers feared. The Federalist No. 71, at 484 (A. Hamil-
ton); see id., No. 48, at 332–333 (J. Madison); Bowsher v.
Synar, 478 U. S. 714, 721–722, 727 (1986). And a limitless
subpoena power would transform the “established practice”
of the political branches. Noel Canning, 573 U. S., at 524
(internal quotation marks omitted). Instead of negotiating
over information requests, Congress could simply walk away
from the bargaining table and compel compliance in court.
The House and the courts below suggest that these separa-
tion of powers concerns are not fully implicated by the par-
ticular subpoenas here, but we disagree. We would have to
be “blind” not to see what “[a]ll others can see and under-
stand”: that the subpoenas do not represent a run-of-the-mill
legislative effort but rather a clash between rival branches
of government over records of intense political interest for
all involved. Rumely, 345 U. S., at 44 (quoting Child Labor
Tax Case, 259 U. S. 20, 37 (1922) (Taft, C. J.)).

868 TR
UMP v. MAZARS USA, LLP
Opinion of the Court
The interbranch confict here does not vanish simply be-
cause
the subpoenas seek personal papers or because the
President sued in his personal capacity. The President is
the only person who alone composes a branch of government.
As a result, there is not always a clear line between his per-
sonal and offcial affairs. “The interest of the man” is often
“connected with the constitutional rights of the place.” The
Federalist No. 51, at 349. Given the close connection be-
tween the Offce of the President and its occupant, congres-
sional demands for the President's papers can implicate the
relationship between the branches regardless whether those
papers are personal or offcial. Either way, a demand may
aim to harass the President or render him “complaisan[t] to
the humors of the Legislature.” Id., No. 71, at 483. In fact,
a subpoena for personal papers may pose a heightened risk
of such impermissible purposes, precisely because of the doc-
uments' personal nature and their less evident connection to
a legislative task. No one can say that the controversy here
is less signifcant to the relationship between the branches
simply because it involves personal papers. Quite the oppo-
site. That appears to be what makes the matter of such
great consequence to the President and Congress.
In addition, separation of powers concerns are no less pal-
pable here simply because the subpoenas were issued to
third parties. Congressional demands for the President's
information present an interbranch confict no matter where
the information is held—it is, after all, the President's infor-
mation. Were it otherwise, Congress could sidestep consti-
tutional requirements any time a President's information is
entrusted to a third party—as occurs with rapidly increasing
frequency. Cf. Carpenter v. United States, 585 U. S. 296,
313–314, 315 (2018). Indeed, Congress could declare open
season on the President's information held by schools, ar-
chives, internet service providers, e-mail clients, and fnan-
cial institutions. The Constitution does not tolerate such
ready evasi on; it “dea ls w ith substance, not shadows. ”
Cummings v. Missouri, 4 Wall. 277, 325 (1867).

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869
Opinion of the Court
E
C
ongressional subpoenas for the President's personal
information implicate weighty concerns regarding the sepa-
ration of powers. Neither side, however, identifes an ap-
proach that accounts for these concerns. For more than two
centuries, the political branches have resolved information
disputes using the wide variety of means that the Constitu-
tion puts at their disposal. The nature of such interactions
would be transformed by judicial enforcement of either of
the approaches suggested by the parties, eroding a “[d]eeply
embedded traditional way[ ] of conducting government.”
Youngstown Sheet & Tube Co., 343 U. S., at 610 (Frankfurter,
J., concurring).
A balanced approach is necessary, one that takes a “consid-
erable impression” from “the practice of the government,”
McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); see Noel
Canning, 573 U. S., at 524–526, and “resist[s]” the “pressure
inherent within each of the separate Branches to exceed the
outer limits of its power,” INS v. Chadha, 462 U. S. 919, 951
(1983). We therefore conclude that, in assessing whether a
subpoena directed at the President's personal information is
“related to, and in furtherance of, a legitimate task of the
Congress,” Watkins, 354 U. S., at 187, courts must perform
a careful analysis that takes adequate account of the separa-
tion of powers principles at stake, including both the signif-
cant legislative interests of Congress and the “unique posi-
tion” of the President, Clinton, 520 U. S., at 698 (internal
quotation marks omitted). Several special considerations
inform this analysis.
First, courts should carefully assess whether the asserted
legislative purpose warrants the signifcant step of involving
the President and his papers. “ `[O]ccasion[s] for constitu-
tional confrontation between the two branches' should be
avoided whenever possible.” Cheney v. United States Dist.
Court for D. C., 542 U. S. 367, 389–390 (2004) (quoting Nixon,
418 U. S., at 692). Congress may not rely on the President's
information if other sources could reasonably provide Con-

870 TR
UMP v. MAZARS USA, LLP
Opinion of the Court
gress the information it needs in light of its particular leg-
islative
objective. The President's unique constitutional
position means that Congress may not look to him as a
“case study” for general legislation. Cf. 943 F. 3d, at 662–
663, n. 67.
Unlike in criminal proceedings, where “[t]he very integrity
of the judicial system” would be undermined without “full
disclosure of all the facts,” Nixon, 418 U. S., at 709, efforts
to craft legislation involve predictive policy judgments that
are “not hamper[ed] . . . in quite the same way” when every
scrap of potentia l ly relevant evidence is not avai lable,
Cheney, 542 U. S., at 384; see Senate Select Committee, 498
F. 2d, at 732. While we certainly recognize Congress's im-
portant interests in obtaining information through appro-
priate inquiries, those interests are not suffciently powerful
to justify access to the President's personal papers when
other sources could provide Congress the information it
needs.
Second, to narrow the scope of possible confict between
the branches, courts should insist on a subpoena no broader
than reasonably necessary to support Congress's legislative
objective. The specifcity of the subpoena's request “serves
as an important safeguard against unnecessary intrusion into
the operation of the Offce of the President.” Cheney, 542
U. S., at 387.
Third, courts should be attentive to the nature of the evi-
dence offered by Congress to establish that a subpoena ad-
vances a valid legislative purpose. The more detailed and
substantial the evidence of Congress's legislative purpose,
the better. See Watkins, 354 U. S., at 201, 205 (preferring
such evidence over “vague” and “loosely worded” evidence
of Congress's purpose). That is particularly true when Con-
gress contemplates legislation that raises sensitive constitu-
tional issues, such as legislation concerning the Presidency.
In such cases, it is “impossible” to conclude that a subpoena
is designed to advance a valid legislative purpose unless Con-

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871
Thomas, J., dissenting
gress adequately identifes its aims and explains why the
President'
s information will advance its consideration of the
possible legislation. Id., at 205–206, 214–215.
Fourth, courts should be careful to assess the burdens im-
posed on the President by a subpoena. We have held that
burdens on the President's time and attention stemming
from judicial process and litigation, without more, generally
do not cross constitutional lines. See Vance, 591 U. S., at
801–803. Clinton, 520 U. S., at 704–705. But burdens im-
posed by a congressional subpoena should be carefully scruti-
nized, for they stem from a rival political branch that has an
ongoing relationship with the President and incentives to use
subpoenas for institutional advantage.
Other considerations may be pertinent as well; one case
every two centuries does not afford enough experience for
an exhaustive list.
When Congress seeks information “needed for intelligent
legislative action,” it “unquestionably” remains “the duty of
all citizens to cooperate.” Watkins, 354 U. S., at 187 (em-
phasis added). Congressional subpoenas for information
from the President, however, implicate special concerns re-
garding the separation of powers. The courts below did not
take adequate account of those concerns. The judgments of
the Courts of Appeals for the D. C. Circuit and the Second
Circuit are vacated, and the cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, dissenting.
Three Committees of the U. S. House of Representatives
issued subpoenas to several accounting and fnancial frms to
obtain the personal fnancial records of the President, his
family, and several of his business entities. The Committees
do not argue that these subpoenas were issued pursuant to
the House's impeachment power. Instead, they argue that
the subpoenas are a valid exercise of their legislative powers.

872 TR
UMP v. MAZARS USA, LLP
Thomas, J., dissenting
Petitioners challenge the validity of these subpoenas. In
doi
ng so, they call into question our precedents to the extent
that they allow Congress to issue legislative subpoenas for
the President's private, nonoffcial documents. I would hold
that Congress has no power to issue a legislative subpoena
for private, nonoffcial documents—whether they belong to
the President or not. Congress may be able to obtain these
documents as part of an investigation of the President, but
to do so, it must proceed under the impeachment power.
Accordingly, I would reverse the judgments of the Courts
of Appeals.
I
I begin with the Committees' claim that the House's legis-
lative powers include the implied power to issue legislative
subpoenas. Although the Founders understood that the
enumerated powers in the Constitution included implied
powers, the Committees' test for the scope of those powers
is too broad.
“The powers of the legislature are defned, and limited;
and that those limits may not be mistaken, or forgotten, the
constitution is written.” Marbury v. Madison, 1 Cranch
137, 176 (1803). The structure of limited and enumerated
powers in our Constitution denotes that “[o]ur system of gov-
ernment rests on one overriding principle: All power stems
from the consent of the people.” U. S. Term Limits, Inc. v.
Thornton, 514 U. S. 779, 846 (1995) (Thomas, J., dissenting).
As a result, Congress may exercise only those powers given
by the people of the States through the Constitution.
The Founders nevertheless understood that an enumer-
ated power could necessarily bring with it implied powers.
The idea of implied powers usually arises in the context of
the Necessary and Proper Clause, which gives Congress the
power to “make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Gov-
ernment of the United States, or in any Department or Off-

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873
Thomas, J., dissenting
cer thereof.” Art. I, § 8, cl. 18. As I have previously ex-
plai
ned, the Necessary and Proper Clause simply “made
explicit what was already implicit in the grant of each enu-
merated power.” United States v. Comstock, 560 U. S. 126,
161 (2010) (dissenting opinion). That is, “the grant of a gen-
eral power includes the grant of incidental powers for carry-
ing it out.” Bray, “Necessary and Proper” and “Cruel and
Unusual”: Hendiadys in the Constitution, 102 Va. L. Rev. 687,
741 (2016).
The scope of these implied powers is very limited. The
Constitution does not sweep in powers “of inferior impor-
tance, merely because they are inferior.” McCulloch v.
Maryland, 4 Wheat. 316, 408 (1819). Instead, Congress
“can claim no powers which are not granted to it by the con-
stitution, and the powers actually granted, must be such as
are expressly given, or given by necessary implication.”
Martin v. Hunter's Lessee, 1 Wheat. 304, 326 (1816). In
sum, while the Committees' theory of an implied power is
not categorically wrong, that power must be necessarily im-
plied from an enumerated power.
II
At the time of the founding, the power to subpoena pri-
vate, nonoffcial documents was not included by necessary
implication in any of Congress' legislative powers. This un-
derstanding persisted for decades and is consistent with the
Court's frst decision addressing legislative subpoenas, Kil-
bourn v. Thompson, 103 U. S. 168 (1881). The test that this
Court created in McGrain v. Daugherty, 273 U. S. 135 (1927),
and the majority's variation on that standard today, are with-
out support as applied to private, nonoffcial documents.
1
A
The Committees argue that Congress wields the same in-
vestigatory powers that the British Parliament did at the
1
I express no opinion about the constitutionality of legislative subpoenas
for other kinds of evidence.

874 TR
UMP v. MAZARS USA, LLP
Thomas, J., dissenting
time of the founding. But this claim overlooks one of the
fundament
al differences between our Government and the
British Government: Parliament was supreme. Congress
is not.
I have previously explained that “the founding generation
did not subscribe to Blackstone's view of parliamentary su-
premacy.” Department of Transportation v. Association of
American Railroads, 575 U. S. 43, 74 (2015) (opinion concur-
ring in judgment). “Parliament's violations of the law of the
land had been a signifcant complaint of the American Revo-
lution.” Id., at 74–75. “And experiments in legislative su-
premacy in the States had confrmed the idea that even the
legislature must be made subject to the law.” Id., at 75.
James Wilson, signer of the Constitution and future Jus-
tice, explained this difference to the Pennsylvania ratifying
convention: “Blackstone will tell you, that in Britain [the su-
preme power] is lodged in the British Parliament; and I be-
lieve there is no writer . . . on the other side of the Atlantic”
who thought otherwise. 2 Documentary History of the Rat-
ifcation of the Constitution 471 (M. Jensen ed. 1976) (Docu-
mentary History). In the United States, however, “the su-
preme, absolute, and uncontrollable authority, remains with
the people.” Id., at 472. And “[t]he Constitution plainly
sets forth the `few and defned' powers that Congress may
exercise.” Comstock, 560 U. S., at 159 (Thomas, J., dissent-
ing); see also McCulloch, 4 Wheat., at 405; Marbury, 1
Cranch, at 176. This signifcant difference means that Par-
liament's powers and Congress' powers are not necessarily
the same.
In fact, the plain text of the Constitution makes clear that
they are not. The Constitution expressly denies to Con-
gress some of the powers that Parliament exercised. Arti-
cle I, for example, prohibits bills of attainder, § 9, cl. 3, which
Parliament used to “sentenc[e] to death one or more specifc
persons.” United States v. Brown, 381 U. S. 437, 441 (1965).
A legislature can hardly be considered supreme if it lacks

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875
Thomas, J., dissenting
the power to pass bills of attainder, which Justice Story
ca
lled the “highest power of sovereignty.” 3 Commentaries
on the Constitution of the United States § 1338, p. 210 (1833).
Relatedly, the Constitution prohibits ex post facto laws, § 9,
cl. 3, reinforcing the fact that Congress' power to punish is
limited.
2
And in a system in which Congress is not su-
preme, the individual protections in the Bill of Rights, such
as the prohibition on unreasonable searches and seizures,
meaningfully constrain Congress' power to compel docu-
ments from private citizens. Cf. 1 St. George Tucker, Black-
stone's Commentaries 203–205, n. § (1803); see also D. Currie,
The Constitution in Congress: The Federalist Period, 1789–
1801, p. 268 (1997).
Furthermore, Kilbourn—this Court's frst decision on the
constitutionality of legislative subpoenas—emphasized that
Parliament had more powers than Congress. There, the
congressional respondents relied on Parliament's investiga-
tory power to support a legislative subpoena for testimony
and documents. The Court rejected the analogy because
the judicial powers of the House of Commons—the lower
house of Parliament—exceeded the judicial functions of the
House of Representatives. Kilbourn, supra, at 189. At
bottom, Kilbourn recognized that legislative supremacy was
decisively rejected in the framing and ratifcation of our Con-
stitution, which casts doubt on the Committees' claim that
they have power to issue legislative subpoenas to private
parties.
B
The subpoenas in these cases also cannot be justifed based
on the practices of 18th-century American leg islatures.
2
The Constitution also enumerates a limited set of congressional privi-
leges. Although I express no opinion on the question, at least one early
commentator thought the canon of expressio unius meant that Congress
had no unenumerated privileges, such as the power to hold nonmembers
in contempt. 1 St. George Tucker, Blackstone's Comment ar ies 200,
n. § (1803).

876 TR
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Thomas, J., dissenting
Amici supporting the Committees resist this conclusion, but
the
examples they cite materially differ from the legislative
subpoenas at issue here.
First, amici cite investigati ons in wh ich leg islatures
sought to compel testimony from government offcials on
government matters. The subjects included military af-
fairs, taxes, government fnances, and the judiciary. Potts,
Power of Legislative Bodies To Punish for Contempt, 74
U. Pa. L. Rev. 691, 708, 709, 710, 716–717 (1926) (Potts); see
also E. Eberling, Congressional Investigations: A Study of
the Origin and Development of the Power of Congress To
Investigate and Punish for Contempt 18 (1928) (Eberling).
But the information sought in these examples was offcial,
not private. Underscoring this distinction, at least one
revolutionary-era State Constitution permitted the legisla-
ture to “call for all public or offcial papers and records,
and send for persons, whom they may judge necessary in
the course of their inquiries, concerning affairs relating to
the public interest.” Md. Const., Art. X (1776) (emphasis
added).
Second, 18th-century legislatures conducted nonlegislative
investigations. For example, the New York colonial legisla-
ture tasked one committee with investigating a nuisance
complaint and gave it the “power to send for persons, papers
and records.” Eberling 18; see also id., at 19 (investigation
of a government contract obtained by alleged wrongdoing);
Potts 716 (investigation of armed resistance). But to de-
scribe this category is to distinguish it. Here, the Commit-
tees assert only a legislative purpose.
Third, colonial and state legislatures investigated and pun-
ished insults, libels, and bribery of members. For example,
the Pennsylvania colonial assembly investigated “injurious
charges, and slanderous Aspersions against the Conduct of
the late Assembly” made by two individuals. Id., at 710 (in-
ternal quotation marks omitted); see also id., at 717; Eber-
ling 20–21. But once again, to describe this category is to

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877
Thomas, J., dissenting
distinguish it because the subpoenas here are justifed only
as
incidental to the power to legislate, not the power to
punish libels or bribery. In short, none of the examples
from 18th-century colonial and state history support a power
to issue a leg islative subpoena for pr ivate, nonofficia l
documents.
C
Given that Congress has no exact precursor in England
or colonial America, founding-era congressional practice is
especially informative about the scope of implied legislative
powers. Thus, it is highly probative that no founding-era
Congress issued a subpoena for private, nonoffcial docu-
ments. Although respondents could not identify the frst
such legislative subpoena at oral argument, Tr. of Oral Arg.
56, Congress began issuing them by the end of the 1830s.
However, the practice remained controversial in Congress
and this Court throughout the frst century of the Republic.
1
In an attempt to establish the power of Congress to issue
legislative subpoenas, the Committees point to an investiga-
tion of Government affairs and an investigation under one of
Congress' enumerated privileges. Both precedents are ma-
terially different from the subpoenas here.
In 1792, the House authorized a Committee to investigate
a failed military expedition led by General Arthur St. Clair.
3 Hinds' Precedents of the House of Representatives of the
United States § 1725, pp. 79–80 (1907) (Hinds). The Com-
mittee was “empowered to call for such persons, papers and
records as may be necessary to assist their inquiries.” Ibid.
But the Committee never subpoenaed private, nonoffcial
documents, which is telling. Whereas a subpoena for Gov-
ernment documents does not implicate concerns about prop-
erty rights or the Fourth Amendment “right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures,” a subpoena for

878 TR
UMP v. MAZARS USA, LLP
Thomas, J., dissenting
private, nonoffcial documents raises those questions. Thus,
the
power to subpoena private documents, which the Com-
mittee did not exercise, is a far greater power and much less
likely to be implied in Congress' legislative powers.
In 1832, the House investigated Representative Samuel
Houston for assaulting Representative William Stanberry.
Stanberry had accused Houston of collusion with Secretary
of War John Eaton in connection with a bid for a Government
contract, and the House initiated an investigation into the
truthfulness of Stanberry's accusation. 8 Cong. Deb. 2550,
3022–3023 (1832). The House subpoenaed witnesses to tes-
tify, and one of them brought offcial correspondence between
the Secretary of War and the President. H. R. Rep. No. 502,
22d Cong., 1st Sess. 64, 66–67 (1832). But offcial documents
are obviously different from nonoffcial documents. More-
over, the subpoenas were issued pursuant to the House's enu-
merated privilege of punishing its own Members, Art. I, § 5,
not as part of its legislative powers. Because these sub-
poenas were not issued pursuant to a legislative power, they
do not aid the Committees' case.
2
As late as 1827, a majority of the House declined to author-
ize the Committee on Manufactures to subpoena documents,
amid concerns that it was unprecedented. During the de-
bate over the resolution, one opponent remarked that
“[t]here is no instance under this Government, within my
recollection, where this power has been given for the mere
purpose of enabling a committee of this House to adjust the
details of an ordinary bill.” 4 Cong. Deb. 865–866 (Rep.
Strong); see also id., at 862 (referring to “authority to bring
any citizens of the United States . . . whom they might choose
to send for, and compel them to give answers to every in-
quiry which should be addressed to them” as “very extraor-
dinary”). Another opponent stated that the Committee had
requested a power that had “not heretofore been thought

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879
Thomas, J., dissenting
necessary to enable that Committee to acquire correct infor-
mati
on.” Id., at 866 (Rep. Storrs). A third called it “not
only novel and extraordinary, but wholly unnecessary.” Id.,
at 874 (Rep. Stewart); see also id., at 884–885 (Rep. Wright).
No supporter of the resolution offered a specifc precedent
for doing so, and the House ultimately authorized the Com-
mittee to send for persons only. Id., at 889–890.
This debate is particularly signifcant because of the argu-
ments made by both sides. Proponents made essentially the
same arguments the Committees raise here—that the power
to send for persons and papers was necessary to inform Con-
gress as it legislated. Id., at 871 (Rep. Livingston). Oppo-
nents argued that this power was not part of any legislative
function. Id., at 865–866 (Rep. Strong). They also argued
that the House of Commons provided no precedent because
Congress was a body of limited and enumerated powers.
Id., at 882 (Rep. Wood). And in the end, the opponents pre-
vailed. Thus, through 1827, the idea that Congress had the
implied power to issue subpoenas for private documents was
considered “novel, ” “extraordinary, ” and “unnecessary. ”
Id., at 874.
3
By the end of the 1830s, Congress began issuing legislative
subpoenas for private, nonoffcial documents. See Eber-
ling 123–126. Still, the power to demand information from
private parties during legislative investigations remained
controversial.
In 1832, the House authorized a Committee to “inspect the
books, and to examine into the proceedings of the Bank of
the United States, to report thereon, and to report whether
the provisions of its charter have been violated or not.” 8
Cong. Deb. 2160, 2164. The House gave the Committee
“power to send for persons and papers.” Id., at 2160. The
power to inspect the books of the Bank of the United States
is not itself a clear example of a legislative subpoena for pri-
vate, nonoffcial documents, because the Bank was a federally

880 TR
UMP v. MAZARS USA, LLP
Thomas, J., dissenting
chartered corporation and was required to allow Congress
to
inspect its books. App. to 8 Cong. Deb. 54 (1833). The
investigation itself appears to have ranged more widely, how-
ever, leading Congressman John Quincy Adams to criticize
“investigations which must necessarily implicate not
only the president and directors of the bank, and their
proceedings, but the rights, the interests, the fortunes,
and the reputation of individuals not responsible for
those proceedings, and whom neither the committee nor
the House had the power to try, or even accuse before
any other tribunal.” Ibid.
Adams continued that such an investigation “bears all the
exceptionable and odious properties of general warrants and
domiciliary visits.” Ibid. He also objected that the Com-
mittee's investigation of the Bank was tantamount to punish-
ment and thus was in tension with the constitutional prohibi-
tions on “passing any bill of attainder [or] ex post facto law.”
Id., at 60. Thus, even when Congress authorized a Commit-
tee to send for private papers, the constitutionality of doing
so was questioned.
An 1859 Senate investigation, which the Court of Appeals
cited as precedent, underscores that legislative subpoenas to
private parties were a 19th-century innovation. Following
abolitionist John Brown's raid at Harper's Ferry, Senate
Democrats opened an investigation apparently designed to
embarrass opponents of slavery. As part of the investiga-
tion, they called private individuals to testify. Senator
Charles Sumner, a leading opponent of slavery, railed against
the proceedings:
“I know it is said that this power is necessary in aid
of legislation. I deny the necessity. Convenient, at
times, it may be; but necessary, never. We do not drag
the members of the Cabinet or the President to testify
before a committee in aid of legislation; but I say, with-
out hesitation, they can claim no immunity which does

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881
Thomas, J., dissenting
not belong equally to the humblest citizen.” Cong.
Globe
, 36th Cong., 1st Sess., 3007 (1860).
Sumner also addressed the matter of Parliament's powers,
calling them “more or less inapplicable” because “[w]e live
under a written Constitution, with certain specifed powers;
and all these are restrained by the tenth amendment.”
Ibid. For Sumner, as for Adams, the power to issue legisla-
tive subpoenas to private parties was a “dangerous absur-
dity” with no basis in the text or history of the Constitu-
tion. Ibid.
3
4
When this Court frst addressed a legislative subpoena,
it refused to uphold it. After casting doubt on legislative
subpoenas generally, the Court in Kilbourn v. Thompson,
103 U. S. 168, held that the subpoena at issue was unlawful
because it sought to investigate private conduct.
In 1876, the House created a special Committee to investi-
gate the failure of a major bank, which caused the loss of
federal funds and related to fnancial speculation in the Dis-
trict of Columbia. Id., at 171. The Committee issued a
subpoena to Kilbourn, an employee of the bank. Id., at 172.
When he refused to answer questions or produce documents,
the House held him in contempt and arrested him. Id., at
173. After his release, he sued the Speaker, several Com-
mittee members, and the Sergeant at Arms for damages.
The Court discussed the arguments for an “impli[ed]”
power to issue legislative subpoenas. Id., at 183. As the
Court saw it, there were two arguments: “1, its exercise by
the House of Commons of England . . . and, 2d, the necessity
of such a power to enable the two Houses of Congress to
3
I note as well that Sumner expressly distinguished legislative subpoe-
nas from subpoenas issued during “those inquiries which are in their na-
ture preliminary to an impeachment.” Cong. Globe, 36th Cong., 1st Sess.,
3007 (1860).

882 TR
UMP v. MAZARS USA, LLP
Thomas, J., dissenting
perform the duties and exercise the powers which the Con-
stituti
on has conferred on them.” Ibid.
The Court rejected the frst argument. It found “no dif-
ference of opinion as to [the] origin” of the House of Com-
mons' subpoena power:
“[T]he two Houses of Parliament were each courts of
judicature originally, which, though divested by usage,
and by statute, probably, of many of their judicial func-
tions, have yet retained so much of that power as en-
ables them, like any other court, to punish for a con-
tempt of these privileges and authority that the power
rests.” Id., at 184.
Even after the division of Parliament into two houses, “[t]o
the Commons was left the power of impeachment, and, per-
haps, others of a judicial character, and jointly they exer-
cised, until a very recent period, the power of passing bills
of attainder for treason and other high crimes which are in
their nature punishment for crime declared judicially by the
High Court of Parliament.” Ibid. By contrast, the House
of Representatives “is in no sense a court, . . . exercises no
functions derived from its once having been a part of the
highest court of the realm,” and has no judicial functions
beyond “punishing its own members and determining their
election.” Id., at 189. The Court thus rejected the notion
that Congress inherited from Parliament an implied power
to issue legislative subpoenas.
The Court did not reach a conclusion on the second theory
that a legislative subpoena power was necessary for Con-
gress to carry out its legislative duties. But it observed
that, based on British judicial opinions, not “much aid [is]
given to the doctrine, that this power exists as one necessary
to enable either House of Congress to exercise successfully
their function of legislation.” Ibid. The Court referred to
a collection of 18th- and 19th-century English decisions
grounding the Parliamentary subpoena power in that body's
judicial origins. Id., at 184–189 (citing Burdett v. Abbott,

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883
Thomas, J., dissenting
104 Eng. Rep. 501 (K. B. 1811); Brass Crosby's Case, 95 Eng.
Rep
. 1005 (C. P. 1771); Stockdale v. Hansard, 112 Eng. Rep.
1112 (K. B. 1839); and Kielley v. Carson, 13 Eng. Rep. 225
(P. C. 1841)). The Court placed particular emphasis on Kiel-
ley, in which the Privy Council held that the Legislative As-
sembly of Newfoundland lacked a power to punish for con-
tempt. The Privy Council expressly stated that the House
of Commons could punish for contempt
“ `not because it is a representative body with legislative
functions, but by virtue of ancient usage and prescrip-
tion . . . which forms a part of the common law of the
land, and according to which the High Court of Parlia-
ment before its division, and the Houses of Lords and
Commons since, are invested with many privileges, that
of punishment for contempt being one.' ” Kilbourn, 103
U. S., at 188–189.
This Court also noted that the Privy Council “discusse[d] at
length the necessity of this power in a legislative body for
its protection, and to enable it to discharge its law-making
functions, and decide[d] against the proposition.” Id., at
189. Although the Court did not have occasion to decide
whether the legislative subpoena in that case was necessary
to the exercise of Congress' legislative powers, its discussion
strongly suggests the subpoena was unconstitutional.
4
The Court instead based its decision on the fact that the
subpoena at issue “ma[de] inquiry into the private affairs of
the citizen.” Id., at 190. Such a power, the Court rea-
soned, “is judicial and not legislative,” id., at 193, and “no
judicial power is vested in the Congress or either branch
4
According to Justice Miller's private letters, “a majority of the Court,
including Miller himself, were of the opinion that neither House nor Senate
had power to punish for contempt witnesses who refused to testify before
investigating committees.” T. Taylor, Grand Inquest: The Story of Con-
gressional Investigations 49 (1955). Only Justice Miller's desire to “ `de-
cid[e] no more than is necessary' ” caused the Court to avoid the broader
question. Ibid.

884 TR
UMP v. MAZARS USA, LLP
Thomas, J., dissenting
of it, save in the cases” of punishing Members, compelling
Members'
attendance, judging elections and qualifcations,
and impeachment and trial, id., at 192–193. Notably, the
Court found no indication that the House “avowed to im-
peach the secretary,” or else “the whole aspect of the case
would have been changed.” Id., at 193. Even though the
Court decided Kilbourn narrowly, it clearly entertained sub-
stantial doubts about the constitutionality of legislative sub-
poenas for private documents.
D
Nearly half a century later, in McGrain v. Daugherty, the
Court reached the question reserved in Kilbourn—whether
Congress has the power to issue legislative subpoenas. It
rejected Kilbourn's reasoning and upheld the power to issue
legislative subpoenas as long as they were relevant to a legis-
lative power. Although McGrain involved oral testimony,
the Court has since extended this test to subpoenas for pri-
vate documents. The Committees rely on McGrain, but this
line of cases misunderstands both the original meaning of
Article I and the historical practice underlying it.
1
Shortly before Attorney General Harry Daugherty re-
signed in 1924, the Senate opened an investigation into his
“ `alleged failure' ” to prosecute monopolists, the protagonists
of the Teapot Dome scandal, and “ `many others.' ” Mc-
Grain, 273 U. S., at 151. The investigating Committee is-
sued subpoenas to Daugherty's brother, Mally, who refused
to comply and was arrested in Ohio for failure to testify.
Id., at 152–154. Mally petitioned for a writ of habeas cor-
pus, and the District Court discharged him, based largely on
Kilbourn. Ex parte Daugherty, 299 F. 620 (SD Ohio 1924).
The Deputy Sergeant at Arms who arrested Mally directly
appealed to this Court, which reversed.
The Court concluded that, “[i]n actual legislative prac-
tice[,] power to secure needed information by [investigating

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885
Thomas, J., dissenting
and compelling testimony] has long been treated as an attri-
bute
of the power to legislate.” McGrain, 273 U. S., at 161.
The Court specifcally found that “[i]t was so regarded in the
British Parliament and in the Colonial legislatures before the
American Revolution” and that “a like view has prevailed
and been carried into effect in both houses of Congress and
in most of the state legislatures.” Ibid. But the authority
cited by the Court did not support that proposition. The
Court cited the 1792 investigation of St. Clair's defeat, in
which it appears no subpoena was issued, supra, at 877–878,
and the 1859 Senate investigation of John Brown's raid on
Harper's Ferry, which led to an impassioned debate. 273
U. S., at 162–164. Thus, for the reasons explained above, the
examples relied on in McGrain are materially different from
issuing a legislative subpoena for private, nonoffcial docu-
ments. See supra, at 877–878, 880–881.
5
The Court acknowledged Kilbourn, but erroneously distin-
guished its discussion regarding the constitutionality of leg-
islative subpoenas as immaterial dicta. McGrain, supra, at
170–171 (quoting Kilbourn, supra, at 189). The Court con-
cluded that “the two houses of Congress, in their separate
relations, possess not only such powers as are expressly
granted to them by the Constitution, but such auxiliary pow-
ers as are necessary and appropriate to make the express
powers effective.” McGrain, supra, at 173.
Instead of relying on Kilbourn's analysis, McGrain devel-
oped a test that rested heavily on functional considerations.
The Court wrote that “[a] legislative body cannot legislate
wisely or effectively in the absence of information respecting
the conditions which the legislation is intended to affect or
change.” 273 U. S., at 175. Because “mere requests for
such information often are unavailing, and also that informa-
5
The Court also cited decisions between 1858 and 1913 from state courts
and a Canadian court, none of which are persuasive evidence about the
original meaning of the U. S. Constitution. McGrain, 273 U. S., at 165–
167.

886 TR
UMP v. MAZARS USA, LLP
Thomas, J., dissenting
tion which is volunteered is not always accurate or com-
plete
,” “some means of compulsion are essential to obtain
what is needed.” Ibid.
The Court thus concluded that Congress could issue legis-
lative subpoenas, provided that “the purpose for which the
witness's testimony was sought was to obtain information in
aid of the legislative function.” Id., at 176. The Court has
since applied this test to subpoenas for papers without any
further analysis of the text or history of the Constitution.
See Eastland v. United States Servicemen's Fund, 421 U. S.
491, 504–505 (1975). The majority today modifes that test
for cases involving the President, but it leaves the core of
the power untouched. Ante, at 869–871.
2
The opinion in McGrain lacks any foundation in text or
history with respect to subpoenas for private, nonoffcial doc-
uments. It fails to recognize that Congress, unlike Parlia-
ment, is not supreme. It does not cite any specifc precedent
for issuing legislative subpoenas for private documents from
18th-century colonial or state practice. And it identifes no
founding-era legislative subpoenas for private documents.
6
Since McGrain, the Court has pared back Congress' au-
thority to compel testimony and documents. It has held
that certain convictions of witnesses for contempt of Con-
gress v i olated the Fi f th Amendment. See Wa tkin s v.
United States, 354 U. S. 178 (1957) (Due Process Clause);
6
The Court further observed that Congress has long exercised the
power to hold nonmembers in contempt for reasons other than failure to
comply with a legislative subpoena. McGrain, supra, at 168–169. The
earliest case it cited, Anderson v. Dunn, 6 Wheat. 204 (1821), relied on
arguments about Congress' power of self-protection, id., at 226–227.
Members of Congress defending the use of contempt for these other pur-
poses made similar arguments about self-protection. 5 Annals of Cong.
181–182 (1795) (Rep. W. Smith); id., at 189 (Rep. I. Smith). But the failure
to respond to a subpoena does not pose a fundamental threat to Congress'
ability to exercise its powers.

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887
Thomas, J., dissenting
Q u inn v. Un i ted Sta tes, 349 U. S. 155 (1955) (Self-
Incr
imination Clause); see also Barenblatt v. United States,
360 U. S. 109, 153–154 (1959) (Black, J., dissenting). It has
also affrmed the reversal of a conviction on the ground that
the Committee lacked authority to issue the subpoena. See
United States v. Rumely, 345 U. S. 41 (1953). And today, it
creates a new four-part, nonexhaustive test for cases involv-
ing the President. Ante, at 869–871. Rather than continue
our trend of trying to compensate for McGrain, I would sim-
ply decline to apply it in these cases because it is readily
apparent that the Committees have no constitutional author-
ity to subpoena private, nonoffcial documents.
III
If the Committees wish to investigate alleged wrongdoing
by the President and obtain documents from him, the Consti-
tution provides Congress with a special mechanism for doing
so: impeachment.
7
A
It is often acknowledged, “if only half-heartedly honored,”
that one of the motivating principles of our Constitution is
the separation of powers. Association of American Rail-
roads, 575 U. S., at 74 (Thomas, J., concurring in judgment).
The Framers recognized that there are three forms of gov-
ernmental power: legislative, executive, and judicial. The
Framers also created three branches: Congress, the Presi-
dent, and the Judiciary. The three powers largely align
with the three branches. To a limited extent, however, the
Constitution contains “a partial intermixture of those de-
partments for special purposes.” The Federalist No. 66,
p. 401 (C. Rossiter ed. 1961) (A. Hamilton). One of those
special purposes is the system of checks and balances, and
impeachment is one of those checks.
7
I express no view on whether there are any limitations on the impeach-
ment power that would prevent the House from subpoenaing the docu-
ments at issue.

888 TR
UMP v. MAZARS USA, LLP
Thomas, J., dissenting
The Constitution grants the House “the sole Power of Im-
peachment,
” Art. I, § 2, cl. 5, and it specifes that the Presi-
dent may be impeached for “Treason, Bribery, or other high
Crimes and Misdemeanors,” Art. II, § 4. The founding gen-
eration understood impeachment as a check on Presidential
abuses. In response to charges that impeachment “con-
founds legislative and judiciary authorities in the same
body,” Alexander Hamilton called it “an essential check in
the hands of [Congress] upon the encroachments of the exec-
utive.” The Federalist No. 66, at 401–402. And, in the Vir-
ginia ratifying convention, James Madison identifed im-
peachment as a check on Presidential abuse of the treaty
power. 10 Documentary History 1397.
B
The power to impeach includes a power to investigate and
demand documents. Impeachments in the States often in-
volved an investigation. In 1781, the Virginia Legislature
began what Edmund Randolph called an “impeachment” of
then-Governor Thomas Jefferson. P. Hoffer & N. Hull, Im-
peachment in America, 1635–1805, p. 85 (1984). This “most
publicized and far-reaching impeachment inquiry for incom-
petence” included an “ `inquir[y] into the conduct of the exec-
utive of this state for the last two months.' ” Ibid. The
Legislatures of New Jersey, id., at 92, and Pennsylvania, id.,
at 93–95, similarly investigated offcials through impeach-
ment proceedings.
Reinforcing this understanding, the founding generation
repeatedly referred to impeachment as an “inquest.” See 4
Debates on the Constitution 44 (J. Elliot ed. 1854) (speech of
A. Maclaine) (referring to the House as “the grand inquest of
the Union at large”); The Federalist No. 65, at 397 (Hamilton)
(referring to the House as “a method of National In-
quest”); 2 Records of the Federal Convention 154 (M. Far-
rand ed. 1911) (record from the Committee of Detail stating
that “[t]he House of Representatives shall be the grand In-
quest of this Nation; and all Impeachments shall be made by

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889
Thomas, J., dissenting
them”); see also Mass. Const., ch. 1, § 3, Art. VI (1780) (refer-
r
ing to the Massachusetts House of Representatives as “the
Grand Inquest of this Commonwealth”). At the time, an
“inquest” referred to an “[i]nquiry, especially that made by
a Jury” or “the Jury itself.” N. Bailey, Universal Etymolog-
ical English Dictionary (22d ed. 1770).
The Founders were also aware of the contemporaneous im-
peachment of Warren Hastings in England, in which the
House of Commons heard witnesses before voting to im-
peach. P. Marshall, The Impeachment of Warren Hastings
40–41, 58 (1965). In the frst impeachment under the new
Constitution, Congressmen cited the Hastings impeachment
as precedent for several points, including the power to take
testimony before impeaching. 7 Annals of Cong. 456 (1797)
(Rep. Rutledge); id., at 459 (Rep. Sitgreaves); id., at 460
(Rep. Gallatin).
Other evidence from the 1790s confrms that the power
to investigate includes the power to demand documents.
When the House of Representatives sought documents re-
lated to the Jay Treaty from President George Washington,
he refused to provide them on the ground that the House
had no legislative powers relating to the ratifcation of trea-
ties. 5 Annals of Cong. 760–762 (1796). But he carefully
noted that “[i]t does not occur that the inspection of the pa-
pers asked for can be relative to any purpose under the cog-
nizance of the House of Representatives, except that of an
impeachment; which the resolution has not expressed.” Id.,
at 760. In other words, he understood that the House can
demand documents as part of its power to impeach.
This Court has also long recognized the power of the
House to demand documents. Even as it questioned the
power to issue legislative subpoenas, the Court in Kilbourn
acknowledged the ability to “compel the attendance of
witnesses, and their answer to proper questions” when
“the question of . . . impeachment is before either body act-
ing in its appropriate sphere on that subject.” 103 U. S.,
at 190.

890 TR
UMP v. MAZARS USA, LLP
Thomas, J., dissenting
I express no view today on the boundaries of the power to
demand
documents in connection with impeachment proceed-
ings. But the power of impeachment provides the House
with authority to investigate and hold accountable Presi-
dents who commit high crimes or misdemeanors. That is
the proper path by which the Committees should pursue
their demands.
IV
For nearly two centuries, until the 1970s, Congress never
attempted to subpoena documents to investigate wrongdoing
by the President outside the context of impeachment. Con-
gress investigated Presidents without opening impeachment
proceedings. See, e. g., 2 Hinds § 1596, at 1043–1045 (Presi-
dent James Buchanan). But it never issued a subpoena
for private, nonoffcial documents as part of those non-
impeachment inquiries. Perhaps most strikingly, one pro-
posed request for offcial documents from the President was
amended after objection so that it “ `requested' ” them rather
than “ `direct[ing]' ” the President to provide them. 3 id.,
§ 1895, at 193.
Insisting that the House proceed through its impeachment
power is not a mere formality. Unlike contempt, which is
governed by the rules of each chamber, impeachment and
removal constitutionally requires a majority vote by the
House and a two-thirds vote by the Senate. Art. I, § 2, cl. 5;
§ 3, cl. 6. In addition, Congress has long thought it neces-
sary to provide certain procedural safeguards to offcials fac-
ing impeachment and removal. See, e. g., 3 Annals of Cong.
903 (1793) (Rep. W. Smith). Finally, initiating impeachment
proceedings signals to the public the gravity of seeking
the removal of a constitutional offcer at the head of a coordi-
nate branch. 940 F. 3d 710, 776 (CADC 2019) (Rao, J.,
dissenting).
* * *
Congress' legislative powers do not authorize it to engage
in a nationwide inquisition with whatever resources it

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891
Alito, J., dissenting
chooses to appropriate for itself. The majority's solution—a
nonexhaustive
four-factor test of uncertain origin—is better
than nothing. But the power that Congress seeks to exer-
cise here has even less basis in the Constitution than the
majority supposes. I would reverse in full because the
power to subpoena private, nonoffcial documents is not a
necessary implication of Congress' legislative powers. If
Congress wishes to obtain these documents, it should pro-
ceed through the impeachment power. Accordingly, I re-
spectfully dissent.
Justice Alito, dissenting.
Justice Thomas makes a valuable argument about the
constitutionality of congressional subpoenas for a President's
personal documents. In these cases, however, I would as-
sume for the sake of argument that such subpoenas are not
categorically barred. Nevertheless, legislative subpoenas
for a President's personal documents are inherently suspi-
cious. Such documents are seldom of any special value in
considering potential legislation, and subpoenas for such doc-
uments can easily be used for improper non-legislative pur-
poses. Accordingly, courts must be very sensitive to separa-
tion of powers issues when they are asked to approve the
enforcement of such subpoenas.
In many cases, disputes about subpoenas for Presidential
documents are fought without judicial involvement. If Con-
gress attempts to obtain such documents by subpoenaing a
President directly, those two heavyweight institutions can
use their considerable weapons to settle the matter. See
ante, at 861 (opinion of the Court) (“Congress and the Presi-
dent maintained this tradition of negotiation and compro-
mise—without the involvement of this Court—until the pres-
ent dispute”). But when Congress issues such a subpoena
to a third party, Congress must surely appreciate that the
Judiciary may be pulled into the dispute, and Congress
should not expect that the courts will allow the subpoena to
be enforced without seriously examining its legitimacy.

892 TR
UMP v. MAZARS USA, LLP
Alito, J., dissenting
Whenever such a subpoena comes before a court, Congress
shou
ld be required to make more than a perfunctory showing
that it is seeking the documents for a legitimate legislative
purpose and not for the purpose of exposing supposed Presi-
dential wrongdoing. See ante, at 862–863. The House can
inquire about possible Presidential wrongdoing pursuant to
its impeachment power, see ante, at 887–890 (Thomas, J.,
dissenting), but the Committees do not defend these subpoe-
nas as ancillary to that power.
Instead, they claim that the subpoenas were issued to
gather information that is relevant to legislative issues, but
there is disturbing evidence of an improper law enforcement
purpose. See 940 F. 3d 710, 767–771 (CADC 2019) (Rao, J.,
dissenting). In addition, the sheer volume of documents
sought calls out for explanation. See 943 F. 3d 627, 676–681
(CA2 2019) (Livingston, J., concurring in part and dissenting
in part).
The Court recognizes that the decisions below did not give
adequate consideration to separation of powers concerns.
Therefore, after setting out a non-exhaustive list of consider-
ations for the lower courts to take into account, ante, at 869–
871, the Court vacates the judgments of the Courts of Ap-
peals and sends the cases back for reconsideration. I agree
that the lower courts erred and that these cases must be
remanded, but I do not think that the considerations outlined
by the Court can be properly satisfed unless the House is
required to show more than it has put forward to date.
Specifcally, the House should provide a description of the
type of legislation being considered, and while great speci-
fcity is not necessary, the description should be suffcient to
permit a court to assess whether the particular records
sought are of any special importance. The House should
also spell out its constitutional authority to enact the type of
legislation that it is contemplating, and it should justify the
scope of the subpoenas in relation to the articulated legisla-
tive needs. In addition, it should explain why the subpoe-

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893
Alito, J., dissenting
naed information, as opposed to information available from
other
sources, is needed. Unless the House is required to
make a showing along these lines, I would hold that enforce-
ment of the subpoenas cannot be ordered. Because I fnd
the terms of the Court's remand inadequate, I must respect-
fully dissent.

894 OCTOBER
TERM, 2019
Syllabus
McGIRT v. OKLAHOMA
certiorari
to the court of criminal appeals of
oklahoma
No. 18–9526. Argued May 11, 2020—Decided July 9, 2020
The Major Crimes Act (MCA) provides that, within “the Indian country,”
“[a]ny Indian who commits” certain enumerated offenses “shall be sub-
ject to the same law and penalties as all other persons committing any
of [those] offenses, within the exclusive jurisdiction of the United
States. ” 18 U. S. C. § 1153(a). “Indian country” includes “all land
within the limits of any Indian reservation under the jurisdiction of
the United States Government.” § 1151. Petitioner Jimcy McGirt was
convicted by an Oklahoma state court of three serious sexual offenses.
He unsuccessfully argued in state postconviction proceedings that the
State lacked jurisdiction to prosecute him because he is an enrolled
member of the Seminole Nation and his crimes took place on the Creek
Reservation. He seeks a new trial, which, he contends, must take place
in federal court.
Held: For MCA purposes, land reserved for the Creek Nation since the
19th century remains “Indian country.” Pp. 899–938.
(a) Congress established a reservation for the Creek Nation. An
1833 Treaty fxed borders for a “permanent home to the whole Creek
Nation of Indians,” 7 Stat. 418, and promised that the United States
would “grant a patent, in fee simple, to the Creek nation of Indians for
the [assigned] land” to continue “so long as they shall exist as a nation,
and continue to occupy the country hereby assigned to them,” id., at
419. The patent formally issued in 1852.
Though the early treaties did not refer to the Creek lands as a “reser-
vation,” similar language in treaties from the same era has been held
suffcient to create a reservation, see, e. g., Menominee Tribe v. United
States, 391 U. S. 404, 405, and later Acts of Congress—referring to the
“Creek reservation”—leave no room for doubt, see, e. g., 17 Stat. 626.
In addition, an 1856 Treaty promised that “no portion” of Creek lands
“would ever be embraced or included within, or annexed to, any Terri-
tory or State,” 11 Stat. 700, and that the Creeks would have the “unre-
stricted right of self-government,” with “full jurisdiction” over enrolled
Tribe members and their property, id., at 704. Pp. 899–902.
(b) Congress has since broken more than a few promises to the Tribe.
Nevertheless, the Creek Reservation persists today. Pp. 902–924.

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895
Syllabus
(1) Once a federal reservation is established, only Congress can di-
mi
nish or disestablish it. Doing so requires a clear expression of con-
gressional intent. Pp. 902–904.
(2) Oklahoma claims that Congress ended the Creek Reservation
during the so-called “allotment era”—a period when Congress sought to
pressure many tribes to abandon their communal lifestyles and parcel
their lands into smaller lots owned by individual tribal members. Miss-
ing from the allotment-era agreement with the Creek, see 31 Stat. 862–
864, however, is any statute evincing anything like the “present and
total surrender of all tribal interests” in the affected lands. And this
Court has already rejected the argument that allotments automatically
ended reservations. Pp. 904–908.
(3) Oklahoma poi nts to other ways Congress i ntr uded on the
Creeks' promised right to self-governance during the allotment era, in-
cluding abolishing the Creeks' tribal courts, 30 Stat. 504–505, and re-
quiring Presidential approval for certain tribal ordinances, 31 Stat. 872.
But these laws fall short of eliminating all tribal interest in the con-
tested lands. Pp. 909–913.
(4) Oklahoma ultimately claims that historical practice and demo-
graphics are enough by themselves to prove disestablishment. This
Court has consulted contemporaneous usages, customs, and practices to
the extent they shed light on the meaning of ambiguous statutory terms,
but Oklahoma points to no ambiguous language in any of the relevant
statutes that could plausibly be read as an act of cession. Such extra-
textual considerations are of “ `limited interpretive value,' ” Nebraska v.
Parker, 577 U. S. 481, 493, and the “least compelling ” form of evidence,
South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 356. In the end,
Oklahoma resorts to the State's long historical practice of prosecuting
Indians in state court for serious crimes on the contested lands, various
statements made during the allotment era, and the speedy and persistent
movement of white settlers into the area. But these supply little help
with the law's meaning and much potential for mischief. Pp. 913–924.
(c) In the alternative, Oklahoma contends that Congress never estab-
lished a reservation but instead created a “dependent Indian commu-
nity.” To hold that the Creek never had a reservation would require
willful blindness to the statutory language and a belief that the land
patent the Creek received somehow made their tribal sovereignty easier
to divest. Congress established a reservation, not a dependent Indian
community, for the Creek Nation. Pp. 924–927.
(d) Even assuming that the Creek land is a reservation, Oklahoma
argues that the MCA has never applied in eastern Oklahoma. It claims
that the Oklahoma Enabling Act, which transferred all nonfederal cases

896 M
cGIRT v. OKLAHOMA
Syllabus
pending in the territorial courts to Oklahoma's state courts, made the
St
ate's courts the successors to the federal territorial courts' sweeping
authority to try Indians for crimes committed on reservations. That
argument, however, rests on state prosecutorial practices that defy the
MCA, rather than on the law's plain terms. Pp. 927–932.
(e) Finally, Oklahoma warns of the potential consequences that will
follow a ruling against it, such as unsettling an untold number of convic-
tions and frustrating the State's ability to prosecute crimes in the fu-
ture. This Court is aware of the potential for cost and confict around
jurisdictional boundaries. But Oklahoma and its tribes have proven
time and again that they can work successfully together as partners,
and Congress remains free to supplement its statutory directions about
the lands in question at any time. Pp. 932–937.
Reversed.
Gorsuch, J., delivered the opinion of the Court, in which Ginsburg,
Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., fled a
dissenting opinion, in which Alito and Kavanaugh, JJ., joined, and in
which Thomas, J., joined except as to footnote 9, post, p. 938. Thomas,
J., fled a dissenting opinion, post, p. 973.
Ian Heath Gershengorn argued the cause for petitioner.
With him on the briefs was Zachary C. Schauf.
Riyaz A. Kanji argued the cause for Muscogee (Creek)
Nation as amicus curiae urging reversal. With him on the
brief were David A. Giampetroni, Cory J. Albright, and
Kyle Haskins.
Mi thun Mansinghani, Solicitor General of Oklahoma,
argued the cause for respondent. With him on the brief
were Mike Hunter, Attorney General of Oklahoma, Jennifer
Crabb, Assistant Attorney General, Bryan Cleveland and
Randall Yates, Assistant Solicitors General, R. Reeves An-
derson, Allon Kedem, Sally L. Pei, and Stephen K. Wirth.
Deputy Solicitor General Kneedler argued the cause for
the United States as amicus curiae urging affrmance.
With him on the brief were Solicitor General Francisco,
Assistant Attorney General Clark, Erica L. Ross, William
B. Lazarus, and James A. Maysonett.*
*Briefs of amici curiae urging reversal were fled for Historians et al.
by L. Susan Work and Chrissi Ross Nimmo; for the National Association
of Criminal Defense Lawyers by Jon M. Sands, Keith J. Hilzendeger, and

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Opinion of the Court
Justice Gorsuch delivered the opinion of the Court.
On
the far end of the Trail of Tears was a promise.
Forced to leave their ancestral lands in Georgia and Ala-
bama, the Creek Nation received assurances that their new
lands in the West would be secure forever. In exchange for
ceding “all their land, East of the Mississippi river,” the U. S.
government agreed by treaty that “[t]he Creek country west
of the Mississippi shall be solemnly guarantied to the Creek
Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24,
1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on
boundary lines for a new and “permanent home to the whole
Creek nation,” located in what is now Oklahoma. Treaty
With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833
Treaty). The government further promised that “[no] State
or Territory [shall] ever have a right to pass laws for the
government of such Indians, but they shall be allowed to
govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368.
Today we are asked whether the land these treaties prom-
ised remains an Indian reservation for purposes of federal
Barbara Bergman; for the National Indigenous Women's Resource Center
et al. by Mary Kathryn Nagle; and for Tom Cole et al. by Robert H. Henry,
Michael Burrage, Stephen H. Greetham, Frank S. Holleman IV, Douglas
B. Endreson, and Brad Mallett.
Briefs of amici curiae urging affrmance were fled for the State of
Kansas et al. by Derek Schmidt, Attorney General of Kansas, Toby Crouse,
Solicitor General, Brant M. Laue, Deputy Solicitor General, Kurtis K.
Wiard, Assistant Solicitor General, and Jeffrey A. Chanay, Chief Deputy
Attorney General, and by the Attorneys General for their respective
States as follows: Jeff Landry of Louisiana, Timothy C. Fox of Montana,
Douglas J. Peterson of Nebraska, and Ken Paxton of Texas; for the City
of Tulsa by Blaine H. Evanson; for the Environmental Federation of Okla-
homa, Inc., et al. by Lynn H. Slade and Sarah M. Stevenson; for the Inter-
national Municipal Lawyers Association et al. by Charles W. Thompson,
Jr., Amanda Kellar Karras, and Paul Koster; for the National Congress
of American Indians Fund by John E. Echohawk and Colette Routel; for
Troy A. Eid et al. by Dominic E. Draye, Jennifer H. Weddle, and Mr. Eid,
pro se; and for Seventeen Oklahoma District Attorneys et al. by Robert
D. Cheren.

898 M
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Opinion of the Court
criminal law. Because Congress has not said otherwise, we
hold
the government to its word.
I
At one level, the question before us concerns Jimcy
McGirt. Years ago, an Oklahoma state court convicted him of
three serious sexual offenses. Since then, he has argued in
postconviction proceedings that the State lacked jurisdiction
to prosecute him because he is an enrolled member of the
Seminole Nation of Oklahoma and his crimes took place on
the Creek Reservation. A new trial for his conduct, he has
contended, must take place in federal court. The Oklahoma
state courts hearing Mr. McGirt's arguments rejected them,
so he now brings them here.
Mr. McGirt's appeal rests on the federal Major Crimes
Act (MCA). The statute provides that, within “the Indian
country,” “[a]ny Indian who commits” certain enumerated of-
fenses “against the person or property of another Indian
or other person” “shall be subject to the same law and
penalties as all other persons committing any of the above
offenses, within the exclusive jurisdiction of the United
States.” 18 U. S. C. § 1153(a). By subjecting Indians to
federal trials for crimes committed on tribal lands, Congress
may have breached its promises to tribes like the Creek that
they would be free to govern themselves. But this particu-
lar incursion has its limits—applying only to certain enumer-
ated crimes and allowing only the federal government to try
Indians. State courts generally have no jurisdiction to try
Indians for conduct committed in “Indian country.” Negon-
sott v. Samuels, 507 U. S. 99, 102–103 (1993).
The key question Mr. McGirt faces concerns that last qual-
ifcation: Did he commit his crimes in Indian country? A
neighboring provision of the MCA defnes the term to in-
clude, among other things, “all land within the limits of any
Indian reservation under the jurisdiction of the United
States Government, notwithstanding the issuance of any pat-

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Opinion of the Court
ent, and, including rights-of-way running through the reser-
vati
on.” § 1151(a). Mr. McGirt submits he can satisfy this
condition because he committed his crimes on land reserved
for the Creek since the 19th century.
The Creek Nation has joined Mr. McGirt as amicus curiae.
Not because the Tribe is interested in shielding Mr. McGirt
from responsibility for his crimes. Instead, the Creek Na-
tion participates because Mr. McGirt's personal interests
wind up implicating the Tribe's. No one disputes that
Mr. McGirt's crimes were committed on lands described as
the Creek Reservation in an 1866 treaty and federal statute.
But, in seeking to defend the state-court judgment below,
Oklahoma has put aside whatever procedural defenses it
might have and asked us to confrm that the land once given
to the Creeks is no longer a reservation today.
At another level, then, Mr. McGirt's case winds up as a
contest between State and Tribe. The scope of their dispute
is limited; nothing we might say today could unsettle Oklaho-
ma's authority to try non-Indians for crimes against non-
Indians on the lands in question. See United States v. Mc-
Bratney, 104 U. S. 621, 624 (1882). Still, the stakes are not
insignifcant. If Mr. McGirt and the Tribe are right, the
State has no right to prosecute Indians for crimes committed
in a portion of Northeastern Oklahoma that includes most of
the city of Tulsa. Responsibility to try these matters would
fall instead to the federal government and Tribe. Recently,
the question has taken on more salience too. While Okla-
homa state courts have rejected any suggestion that the
lands in question remain a reservation, the Tenth Circuit has
reached the opposite conclusion. Murphy v. Royal, 875
F. 3d 896, 907–909, 966 (2017). We granted certiorari to set-
tle the question. 589 U. S. 1119 (2019).
II
Start with what should be obvious: Congress established
a reservation for the Creeks. In a series of treaties, Con-

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gress not only “solemnly guarantied” the land but also “es-
t
ablish[ed] boundary lines which will secure a country and
permanent home to the whole Creek nation of Indians.”
1832 Treaty, Art. XIV, 7 Stat. 368; 1833 Treaty, preamble, 7
Stat. 418. The government's promises weren't made gratu-
itously. Rather, the 1832 Treaty acknowledged that “[t]he
United States are desirous that the Creeks should remove to
the country west of the Mississippi” and, in service of that
goal, required the Creeks to cede all lands in the East.
Arts. I, XII, 7 Stat. 366, 367. Nor were the government's
promises meant to be delusory. Congress twice assured the
Creeks that “[the] Treaty shall be obligatory on the contract-
ing parties, as soon as the same shall be ratifed by the
United States.” 1832 Treaty, Art. XV, id., at 368; see 1833
Treaty, Art. IX, 7 Stat. 420 (“agreement shall be binding
and obligatory” upon ratifcation). Both treaties were duly
ratifed and enacted as law.
Because the Tribe's move west was ostensibly voluntary,
Congress held out another assurance as well. In the statute
that precipitated these negotiations, Congress authorized the
President “to assure the tribe . . . that the United States
will forever secure and guaranty to them . . . the country so
exchanged with them.” Indian Removal Act of 1830, § 3, 4
Stat. 412. “[A]nd if they prefer it,” the bill continued, “the
United States will cause a patent or grant to be made and
executed to them for the same; Provided always, That such
lands shall revert to the United States, if the Indians become
extinct, or abandon the same.” Ibid. If agreeable to all
sides, a tribe would not only enjoy the government's solemn
treaty promises; it would hold legal title to its lands.
It was an offer the Creek accepted. The 1833 Treaty fxed
borders for what was to be a “permanent home to the whole
Creek nation of Indians.” 1833 Treaty, preamble, 7 Stat.
418. It also established that the “United States will grant
a patent, in fee simple, to the Creek nation of Indians for the
land assigned said nation by this treaty.” Art. III, id., at

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419. That grant came with the caveat that “the right thus
g
uaranteed by the United States shall be continued to said
tribe of Indians, so long as they shall exist as a nation, and
continue to occupy the country hereby assigned them.”
Ibid. The promised patent formally issued in 1852. See
Woodward v. De Graffenried, 238 U. S. 284, 293–294 (1915).
These early treaties did not refer to the Creek lands as a
“reservation”—perhaps because that word had not yet ac-
quired such distinctive signifcance in federal Indian law.
But we have found similar language in treaties from the
same era suffcient to create a reservation. See Menominee
Tribe v. United States, 391 U. S. 404, 405–406 (1968) (grant
of land “ `for a home, to be held as Indian lands are held,' ”
established a reservation). And later Acts of Congress left
no room for doubt. In 1866, the United States entered yet
another treaty with the Creek Nation. This agreement re-
duced the size of the land set aside for the Creek, compensat-
ing the Tribe at a price of 30 cents an acre. Treaty Between
the United States and the Creek Nation of Indians, Art. III,
June 14, 1866, 14 Stat. 786. But Congress explicitly restated
its commitment that the remaining land would “be forever
set apart as a home for said Creek Nation,” which it now
referred to as “the reduced Creek reservation.” Arts. III,
IX, id., at 786, 788.
1
Throughout the late 19th century,
1
The dissent by The Chief Justice (hereinafter the dissent) suggests
that the Creek's intervening alliance with the Confederacy “ `unsettled' ”
and “ `forfeit[ed]' ” the longstanding promises of the United States. Post,
at 940. But the Treaty of 1866 put an end to any Civil War hostility,
promising mutual amnesty, “perpetual peace and friendship,” and guaran-
teeing the Tribe the “quiet possession of their country.” Art. I, 14 Stat.
786. Though this treaty expressly reduced the size of the Creek Reserva-
tion, the Creek were compensated for the lost territory, and otherwise
“retained” their unceded portion. Art. III, ibid. Contrary to the dis-
sent's implication, nothing in the Treaty of 1866 purported to repeal prior
treaty promises. Cf. Art. XII, id., at 790 (the United States expressly
“reaffrms and reassumes all obligations of treaty stipulations with the
Creek nation entered into before” the Civil War).

902 M
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many other federal laws also expressly referred to the Creek
Reservati
on. See, e. g., Treaty Between United States and
Cherokee Nation of Indians, Art. IV, July 19, 1866, 14 Stat.
800 (“Creek reservation”); Act of Mar. 3, 1873, ch. 322, 17
Stat. 626 (multiple references to the “Creek reservation” and
“Creek India[n] Reservation”); 11 Cong. Rec. 2351 (1881) (dis-
cussing “the dividing line between the Creek reservation
and their ceded lands”); Act of Feb. 13, 1891, 26 Stat. 750
(describing a cession by referencing the “West boundary line
of the Creek Reservation”).
There is a fnal set of assurances that bear mention, too.
In the Treaty of 1856, Congress promised that “no portion”
of the Creek Reservation “shall ever be embraced or in-
cluded within, or annexed to, any Territory or State.” Art.
IV, 11 Stat. 700. And within their lands, with exceptions,
the Creeks were to be “secured in the unrestricted right of
self-government,” with “full jurisdiction” over enrolled Tribe
members and their property. Art. XV, id., at 704. So the
Creek were promised not only a “permanent home” that
would be “forever set apart”; they were also assured a right
to self-government on lands that would lie outside both the
legal jurisdiction and geographic boundaries of any State.
Under any defnition, this was a reservation.
III
A
While there can be no question that Congress established
a reservation for the Creek Nation, it's equally clear that
Congress has since broken more than a few of its promises
to the Tribe. Not least, the land described in the parties'
treaties, once undivided and held by the Tribe, is now frac-
tured into pieces. While these pieces were initially distrib-
uted to Tribe members, many were sold and now belong to
persons unaffliated with the Nation. So in what sense, if
any, can we say that the Creek Reservation persists today?

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Opinion of the Court
To determine whether a tribe continues to hold a reserva-
ti
on, there is only one place we may look: the Acts of Con-
gress. This Court long ago held that the Legislature wields
signifcant constitutional authority when it comes to tribal
relations, possessing even the authority to breach its own
promises and treaties. Lone Wolf v. Hitchcock, 187 U. S.
553, 566–568 (1903). But that power, this Court has cau-
tioned, belongs to Congress alone. Nor will this Court
lightly infer such a breach once Congress has established a
reservation. Solem v. Bartlett, 465 U. S. 463, 470 (1984).
Under our Constitution, States have no authority to re-
duce federal reservations lying within their borders. Just
imagine if they did. A State could encroach on the tribal
boundaries or legal rights Congress provided, and, with
enough time and patience, nullify the promises made in the
name of the United States. That would be at odds with the
Constitution, which entrusts Congress with the authority to
regulate commerce with Native Americans, and directs that
federal treaties and statutes are the “supreme Law of the
Land.” Art. I, § 8; Art. VI, cl. 2. It would also leave tribal
rights in the hands of the very neighbors who might be least
inclined to respect them.
Likewise, courts have no proper role in the adjustment of
reservation borders. Mustering the broad social consensus
required to pass new legislation is a deliberately hard busi-
ness under our Constitution. Faced with this daunting task,
Congress sometimes might wish an inconvenient reservation
would simply disappear. Short of that, legislators might
seek to pass laws that tiptoe to the edge of disestablishment
and hope that judges—facing no possibility of electoral con-
sequences themselves—will deliver the fnal push. But
wishes don't make for laws, and saving the political branches
the embarrassment of disestablishing a reservation is not
one of our constitutionally assigned prerogatives. “[O]nly
Congress can divest a reservation of its land and diminish its
boundaries.” Solem, 465 U. S., at 470. So it's no matter

904 M
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Opinion of the Court
how many other promises to a tribe the federal government
has
already broken. If Congress wishes to break the prom-
ise of a reservation, it must say so.
History shows that Congress knows how to withdraw a
reservation when it can muster the will. Sometimes, legis-
lation has provided an “[e]xplicit reference to cession” or an
“unconditional commitment . . . to compensate the Indian
tribe for its opened land.” Ibid. Other times, Congress
has directed that tribal lands shall be “ `restored to the public
domain.' ” Hagen v. Utah, 510 U. S. 399, 412 (1994) (empha-
sis deleted). Likewise, Congress might speak of a reserva-
tion as being “ `discontinued,' ” “ `abolished,' ” or “ `vacated.' ”
Mattz v. Arnett, 412 U. S. 481, 504, n. 22 (1973). Disestab-
lishment has “never required any particular form of words,”
Hagen, 510 U. S., at 411. But it does require that Congress
clearly express its intent to do so, “[c]ommon[ly with an]
`[e]xplicit reference to cession or other language evidencing
the present and total surrender of all tribal interests.' ” Ne-
braska v. Parker, 577 U. S. 481, 488 (2016).
B
In an effort to show Congress has done just that with the
Creek Reservation, Oklahoma points to events during the
so-called “allotment era.” Starting in the 1880s, Congress
sought to pressure many tribes to abandon their communal
lifestyles and parcel their lands into smaller lots owned by
individual tribe members. See 1 F. Cohen, Handbook of
Federal Indian Law § 1.04 (2012) (Cohen), discussing General
Allotment Act of 1887, ch. 119, 24 Stat. 388. Some allotment
advocates hoped that the policy would create a class of as-
similated, landowning, agrarian Native Americans. See
Cohen § 1.04; F. Hoxie, A Final Promise: The Campaign To
Assimilate 18–19 (2001). Others may have hoped that, with
lands in individual hands and (eventually) freely alienable,
white settlers would have more space of their own. See id.,
at 14–15; cf. General Allotment Act of 1887, § 5, 24 Stat.
389–390.

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Opinion of the Court
The Creek were hardly exempt from the pressures of the
a
llotment era. In 1893, Congress charged the Dawes Com-
mission with negotiating changes to the Creek Reservation.
Congress identifed two goals: Either persuade the Creek to
cede territory to the United States, as it had before, or agree
to allot its lands to Tribe members. Act of Mar. 3, 1893, ch.
209, § 16, 27 Stat. 645–646. A year later, the Commission
reported back that the Tribe “would not, under any circum-
stances, agree to cede any portion of their lands.” S. Misc.
Doc. No. 24, 53d Cong., 3d Sess., 7 (1894). At that time,
before this Court's decision in Lone Wolf, Congress may not
have been entirely sure of its power to terminate an estab-
lished reservation unilaterally. Perhaps for that reason,
perhaps for others, the Commission and Congress took this
report seriously and turned their attention to allotment
rather than cession.
2
The Commission's work culminated in an allotment agree-
ment with the Tribe in 1901. Creek Allotment Agreement,
ch. 676, 31 Stat. 861. With exceptions for certain pre-
existing town sites and other special matters, the agreement
established procedures for allotting 160-acre parcels to indi-
vidual Tribe members who could not sell, transfer, or other-
wise encumber their allotments for a number of years. §§ 3,
7, id., at 862–864 (5 years for any portion, 21 years for
the designated “homestead” portion). Tribe members were
given deeds for their parcels that “convey[ed] to [them] all
right, title, and interest of the Creek Nation.” § 23, id., at
867–868. In 1908, Congress relaxed these alienation restric-
tions in some ways, and even allowed the Secretary of the
Interior to waive them. Act of May 27, 1908, ch. 199, § 1, 35
Stat. 312. One way or the other, individual Tribe members
2
The dissent stresses, repeatedly, that the Dawes Commission was
charged with seeking to extinguish the reservation. Post, at 954–955,
961. Yet, the dissent fails to mention the Commission's various reports
acknowledging that those efforts were unsuccessful precisely because the
Creek refused to cede their lands.

906 M
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were eventually free to sell their land to Indians and non-
Indians
alike.
Missing in all this, however, is a statute evincing anything
like the “present and total surrender of all tribal interests”
in the affected lands. Without doubt, in 1832 the Creek
“cede[d]” their original homelands east of the Mississippi for
a reservation promised in what is now Oklahoma. 1832
Treaty, Art. I, 7 Stat. 366. And in 1866, they “cede[d] and
convey[ed]” a portion of that reservation to the United
States. Treaty With the Creek, Art. III, 14 Stat. 786. But
because there exists no equivalent law terminating what re-
mained, the Creek Reservation survived allotment.
In saying this we say nothing new. For years, States
have sought to suggest that allotments automatically ended
reservations, and for years courts have rejected the argu-
ment. Remember, Congress has defned “Indian country”
to include “all land within the limits of any Indian reserva-
tion . . . notwithstanding the issuance of any patent, and,
including any rights-of-way running through the reserva-
tion.” 18 U. S. C. § 1151(a). So the relevant statute ex-
pressly contemplates private land ownership within reserva-
tion boundaries. Nor under the statute's terms does it
matter whether these individual parcels have passed hands
to non-Indians. To the contrary, this Court has explained
repeatedly that Congress does not disestablish a reservation
simply by allowing the transfer of individual plots, whether
to Native Americans or others. See Mattz, 412 U. S., at 497
(“[A]llotment under the . . . Act is completely consistent with
continued reservation status”); Seymour v. Superintendent
of Wash. State Penitentiary, 368 U. S. 351, 356–358 (1962)
(holding that allotment Act “did no more than open the way
for non-Indian settlers to own land on the reservation”); Par-
ker, 577 U. S., at 489 (“[T]he 1882 Act falls into another cate-
gory of surplus land Acts: those that merely opened reserva-
tion land to settlement . . . . Such schemes allow non-Indian
settlers to own land on the reservation” (internal quotation
marks omitted)).

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It isn't so hard to see why. The federal government is-
sued
its own land patents to many homesteaders throughout
the West. These patents transferred legal title and are the
basis for much of the private land ownership in a number of
States today. But no one thinks any of this diminished the
United States's claim to sovereignty over any land. To ac-
complish that would require an act of cession, the transfer of
a sovereign claim from one nation to another. 3 E. Wash-
burn, American Law of Real Property *521–*524. And
there is no reason why Congress cannot reserve land for
tribes in much the same way, allowing them to continue to
exercise governmental functions over land even if they no
longer own it communally. Indeed, such an arrangement
seems to be contemplated by § 1151(a)'s plain terms. Cf.
Seymour, 368 U. S., at 357–358.
3
Oklahoma reminds us that allotment was often the frst
step in a plan ultimately aimed at disestablishment. As this
Court explained in Mattz, Congress's expressed policy at the
time “was to continue the reservation system and the trust
status of Indian lands, but to allot tracts to individual Indi-
ans for agriculture and grazing.” 412 U. S., at 496. Then,
“[w]hen all the lands had been allotted and the trust expired,
the reservation could be abolished.” Ibid. This plan was
set in motion nationally in the General Allotment Act of
1887, and for the Creek specifcally in 1901. No doubt, this
is why Congress at the turn of the 20th century “believed to
a man” that “the reservation system would cease” “within a
generation at most.” Solem, 465 U. S., at 468. Still, just as
wishes are not laws, future plans aren't either. Congress
may have passed allotment laws to create the conditions for
3
The dissent not only fails to acknowledge these features of the statute
and our precedents. It proceeds in defance of them, suggesting that by
moving to eliminate communal title and relaxing restrictions on alienation,
“Congress destroyed the foundation of [the Creek Nation's] sovereignty.”
Post, at 954. But this Court long ago rejected the notion that the pur-
chase of lands by non-Indians is inconsistent with reservation status. See
Seymour, 368 U. S., at 357–358.

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disestablishment. But to equate allotment with disestab-
l
ishment would confuse the frst step of a march with arrival
at its destination.
4
Ignoring this distinction would run roughshod over many
other statutes as well. In some cases, Congress chose not
to wait for allotment to run its course before disestablishing
a reservation. When it deemed that approach appropriate,
Congress included additional language expressly ending res-
ervation status. So, for example, in 1904, Congress allotted
reservations belonging to the Ponca and Otoe Tribes, reser-
vations also lying within modern-day Oklahoma, and then
provided “further, That the reservation lines of the said . . .
reservations . . . are hereby . . . abolished.” Act of Apr.
21, 1904, § 8, 33 Stat. 217–218 (emphasis deleted); see also
DeCoteau v. District County Court for Tenth Judicial Dist.,
420 U. S. 425, 439–440, n. 22 (1975) (collecting other exam-
ples). Tellingly, however, nothing like that can be found in
the nearly contemporary 1901 Creek Allotment Agreement
or the 1908 Act. That doesn't make these laws special.
Rather, in using the language that they did, these allotment
laws tracked others of the period, parceling out individual
tracts, while saving the ultimate fate of the land's reserva-
tion status for another day.
5
4
The dissent seemingly confates these steps in other ways, too, by im-
plying that the passage of an allotment Act itsel f extinguished title. Post,
at 955. The reality proved more complicated. Allotment of the Creek
lands did not occur overnight, but dragged on for years, well past Oklaho-
ma's statehood, until Congress fnally prohibited any further allotments
more than 15 years later. Act of Mar. 2, 1917, 39 Stat. 986.
5
The dissent doesn't purport to fnd any of the hallmarks of diminish-
ment in the Creek Allotment Agreement. Instead, the dissent tries to
excuse their absence by saying that it would have made “little sense” to
fnd such language in an Act transferring the Tribe's lands to private own-
ers. Post, at 951. But the dissent's account is impossible to reconcile
with history and precedent. As we have noted, plenty of allotment agree-
ments during this era included precisely the language of cession and com-

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C
If
allotment by itself won't work, Oklahoma seeks to prove
disestablishment by pointing to other ways Congress in-
truded on the Creek's promised right to self-governance dur-
ing the allotment era. It turns out there were many. For
example, just a few years before the 1901 Creek Allotment
Agreement, and perhaps in an effort to pressure the Tribe to
the negotiating table, Congress abolished the Creeks' tribal
courts and transferred all pending civil and criminal cases to
the U. S. Courts of the Indian Territory. Curtis Act of 1898,
§ 28, 30 Stat. 504–505. Separately, the Creek Allotment
Agreement provided that tribal ordinances “affecting the
lands of the tribe, or of individuals after allotment, or the
moneys or other property of the tribe, or of the citizens
thereof ” would not be valid until approved by the President
of the United States. § 42, 31 Stat. 872.
Plainly, these laws represented serious blows to the Creek.
But, just as plainly, they left the Tribe with signifcant sover-
eign functions over the lands in question. For example, the
Creek Nation retained the power to collect taxes, operate
schools, legislate through tribal ordinances, and, soon, over-
see the federally mandated allotment process. §§ 39, 40, 42,
id., at 871–872; Buster v. Wright, 135 F. 947, 949–950, 953–
954 (CA8 1905). And, in its own way, the congressional in-
cursion on tribal legislative processes only served to prove
the power: Congress would have had no need to subject
pensation that the dissent says it would make “little sense” to fnd there.
And this Court has confrmed time and again that allotment agreements
without such language do not necessarily disestablish or diminish the res-
ervation at issue. See Mattz v. Arnett, 412 U. S. 481, 497 (1973); Seymour
v. Superintendent of Wash. State Penitentiary, 368 U. S. 351, 358 (1962).
The dissent's only answer is to suggest that allotment combined with other
statutes limiting the Creek Nation's governing authority amounted to dis-
establishment—in other words that it's the arguments in the next section
that really do the work.

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tribal legislation to Presidential review if the Tribe lacked
any
authority to legislate. Grave though they were, these
congressional intrusions on pre-existing treaty rights fell
short of eliminating all tribal interests in the land.
Much more ominously, the 1901 allotment agreement
ended by announcing that the Creek tribal government
“shall not continue” past 1906, although the agreement
quickly qualifed that statement, adding the proviso “subject
to such further legislation as Congress may deem proper.”
§ 46, 31 Stat. 872. Thus, while suggesting that the tribal
government might end in 1906, Congress also necessarily un-
derstood it had not ended in 1901. All of which was consist-
ent with the Legislature's general practice of taking allot-
ment as a frst, not fnal, step toward disestablishment and
dissolution.
When 1906 fnally arrived, Congress adopted the Five Civ-
ilized Tribes Act. But instead of dissolving the tribal gov-
ernment as some may have expected, Congress “deem[ed]
proper” a different course, simply cutting away further at
the Tribe's autonomy. Congress empowered the President
to remove and replace the principal chief of the Creek, pro-
hibited the tribal council from meeting more than 30 days a
year, and directed the Secretary of the Interior to assume
control of tribal schools. §§ 6, 10, 28, 34 Stat. 139–140, 148.
The Act also provided for the handling of the Tribe's funds,
land, and legal liabilities in the event of dissolution. §§ 11,
27, id., at 141, 148. Despite these additional incursions on
tribal authority, however, Congress expressly recognized the
Creek's “tribal existence and present tribal governmen[t]”
and “continued [them] in full force and effect for all purposes
authorized by law.” § 28, id., at 148.
In the years that followed, Congress continued to adjust
its arrangements with the Tribe. For example, in 1908, the
Legislature required Creek offcials to turn over all “tribal
properties” to the Secretary of the Interior. Act of May 27,

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1908, § 13, 35 Stat. 316. The next year, Congress sought the
Creek
National Council's release of certain money claims
against the U. S. government. Act of Mar. 3, 1909, ch. 263,
35 Stat. 781, 805. And, further still, Congress offered the
Creek Nation a one-time opportunity to fle suit in the fed-
eral Court of Claims for “any and all legal and equitable
claims arising under or growing out of any treaty or agree-
ment between the United States and the Creek Indian Na-
tion.” Act of May 24, 1924, ch. 181, 43 Stat. 139; see, e. g.,
United States v. Creek Nation, 295 U. S. 103 (1935). But
Congress never withdrew its recognition of the tribal gov-
ernment, and none of its adjustments would have made any
sense if Congress thought it had already completed that job.
Indeed, with time, Congress changed course completely.
Beginning in the 1920s, the federal outlook toward Native
Americans shifted “away from assimilation policies and to-
ward more tolerance and respect for traditional aspects of
Indian culture.” 1 Cohen § 1.05. Few in 1900 might have
foreseen such a profound “reversal of attitude” was in the
making or expected that “new protections for Indian rights,”
including renewed “support for federally defned tribalism,”
lurked around the corner. Ibid.; see also M. Scherer, Imper-
fect Victories: The Legal Tenacity of the Omaha Tribe, 1945–
1995, pp. 2–4 (1999). But that is exactly what happened.
Pursuant to this new national policy, in 1936, Congress au-
thorized the Creek to adopt a constitution and bylaws, see
Act of June 26, 1936, § 3, 49 Stat. 1967, enabling the Creek
government to resume many of its previously suspended
functions. Muscogee (Creek) Nation v. Hodel, 851 F. 2d
1439, 1442–1447 (CADC 1988).
6
6
The dissent calls it “fantasy” to suggest that Congress evinced “any
unease about extinguishing the Creek domain” because Congress “did
what it set out to do: transform a reservation into a State.” Post, at 959.
The dissent stresses, too, that the Creek were afforded U. S. citizenship
and the right to vote. Post, at 958. But the only thing implausible here

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The Creek Nation has done exactly that. In the interven-
i
ng years, it has ratifed a new constitution and established
three separate branches of government. Ibid.; see Mus-
cogee Creek Nation (MCN) Const., Arts. V, VI, and VII.
Today the Nation is led by a democratically elected Principal
Chief, Second Chief, and National Council; operates a police
force and three hospitals; commands an annual budget of
more than $350 million; and employs over 2,000 people.
Brief for Muscogee (Creek) Nation as Amicus Curiae 36–39.
In 1982, the Nation passed an ordinance reestablishing the
criminal and civil jurisdiction of its courts. See Hodel, 851
F. 2d, at 1442, 1446–1447 (confrming Tribe's authority to do
so). The territorial jurisdiction of these courts extends to
any Indian country within the Tribe's territory as defned by
the Treaty of 1866. MCN Stat. 27, § 1–102(A). And the
State of Oklahoma has afforded full faith and credit to its
judgments since at least 1994. See Barrett v. Barrett, 878
P. 2d 1051, 1054 (Okla. 1994); Full Faith and Credit of
Tribal Courts, Okla. State Cts. Network (Apr. 18, 2019),
https://www.oscn.net/applications/oscn/DeliverDocument.asp
?CiteID=458214.
Maybe some of these changes happened for altruistic rea-
sons, maybe some for other reasons. It seems, for example,
that at least certain Members of Congress hesitated about
disestablishment in 1906 because they feared any reversion
of the Creek lands to the public domain would trigger a stat-
is the suggestion that “creat[ing] a new State” or enfranchising Native
Americans implies an “intent to terminate” any and all reservations
within a State's boundaries. Post, at 951. This Court confronted—and
rejected—that sort of argument long ago in United States v. Sandoval,
231 U. S. 28, 47–48 (1913). The dissent treats that case as a one-off: spe-
cial because “the tribe in Sandoval, the Pueblo Indians of New Mexico,
retained a rare communal title to their lands.” Post, at 957, n. 4. But
Sandoval is not only a case about the Pueblos; it is a foundational prec-
edent recognizing that Congress can welcome Native Americans to par-
ticipate in a broader political community without sacrifcing their tribal
sovereignty.

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utory commitment to hand over portions of these lands to
a
lready powerful railroad interests. See, e. g., 40 Cong. Rec.
2976 (1906) (Sen. McCumber); id., at 3053 (Sen. Aldrich).
Many of those who advanced the reorganization efforts of
the 1930s may have done so more out of frustration with
efforts to assimilate Native Americans than any disaffection
with assimilation as the ultimate goal. See 1 Cohen § 1.05;
Scherer, Imperfect Victories, at 2–4. But whatever the con-
fuence of reasons, in all this history there simply arrived no
moment when any Act of Congress dissolved the Creek Tribe
or disestablished its reservation. In the end, Congress
moved in the opposite direction.
7
D
Ultimately, Oklahoma is left to pursue a very different sort
of argument. Now, the State points to historical practices
and demographics, both around the time of and long after
the enactment of all the relevant legislation. These facts,
the State submits, are enough by themselves to prove dises-
tablishment. Oklahoma even classifes and categorizes how
we should approach the question of disestablishment into
three “steps.” It reads Solem as requiring us to examine
the laws passed by Congress at the frst step, contemporary
events at the second, and even later events and demograph-
ics at the third. On the State's account, we have so far fn-
ished only the frst step; two more await.
This is mistaken. When interpreting Congress's work in
this arena, no less than any other, our charge is usually to
ascertain and follow the original meaning of the law before
7
The dissent ultimately concedes what Oklahoma will not: that no “indi-
vidual congressional action or piece of evidence, standing alone, disestab-
lished the Creek reservation.” Post, at 946. Instead we're told we must
consider “all of the relevant Acts of Congress together, viewed in light of
contemporaneous and subsequent contextual evidence.” Ibid. So, once
again, the dissent seems to suggest that it's the arguments in the next
section that will get us across the line to disestablishment.

914 M
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us. New Prime Inc. v. Oliveira, 586 U. S. 105, 113 (2019).
That
is the only “step” proper for a court of law. To be sure,
if during the course of our work an ambiguous statutory
term or phrase emerges, we will sometimes consult contem-
poraneous usages, customs, and practices to the extent they
shed light on the meaning of the language in question at the
time of enactment. Ibid. But Oklahoma does not point to
any ambiguous language in any of the relevant statutes that
could plausibly be read as an Act of disestablishment. Nor
may a court favor contemporaneous or later practices instead
of the laws Congress passed. As Solem explained, “[o]nce a
block of land is set aside for an Indian reservation and no
matter what happens to the title of individual plots within
the area, the entire block retains its reservation status until
Congress explicitly indicates otherwise.” 465 U. S., at 470
(citing United States v. Celestine, 215 U. S. 278, 285 (1909)).
Still, Oklahoma reminds us that other language in Solem
isn't so constrained. In particular, the State highlights a
passage suggesting that “[w]here non-Indian settlers fooded
into the opened portion of a reservation and the area has
long since lost its Indian character, we have acknowledged
that de facto, if not de jure, diminishment may have oc-
curred.” 465 U. S., at 471. While acknowledging that re-
sort to subsequent demographics was “an unorthodox and
potentially unreliable method of statutory interpretation,”
the Court seemed nonetheless taken by its “obvious practical
advantages.” Id., at 472, n. 13, 471.
Out of context, statements like these might suggest histor-
ical practices or current demographics can suffce to dises-
tablish or diminish reservations in the way Oklahoma envi-
sions. But, in the end, Solem itself found these kinds of
arguments provided “no help” in resolving the dispute before
it. Id., at 478. Notably, too, Solem suggested that what-
ever utility historical practice or demographics might have
was “demonstrated” by this Court's earlier decision in Rose-
bud Sioux Tribe v. Kneip, 430 U. S. 584 (1977). See Solem,

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465 U. S., at 470, n. 10. And Rosebud Sioux hardly endorsed
the
use of such sources to fnd disestablishment. Instead,
based on the statute at issue there, the Court came “to the
frm conclusion that congressional intent” was to diminish
the reservation in question. 430 U. S., at 603. At that
point, the Tribe sought to cast doubt on the clear import of
the text by citing subsequent historical events—and the
Court rejected the Tribe's argument exactly because this
kind of evidence could not overcome congressional intent as
expressed in a statute. Id., at 604–605.
This Court has already sought to clarify that extratextual
considerations hardly supply the blank check Oklahoma sup-
poses. In Parker, for example, we explained that “[e]vi-
dence of the subsequent treatment of the disputed land . . .
has `limited interpretive value.' ” 577 U. S., at 493 (quot-
ing South Dakota v. Yankton Sioux Tribe, 522 U. S. 329,
355 (1998)).
8
Yankton Sioux called it the “least compel-
ling ” form of evidence. Id., at 356. Both cases empha-
sized that what value such evidence has can only be interpre-
tative—evidence that, at best, might be used to the extent
it sheds light on what the terms found in a statute meant at
8
The dissent suggests Parker meant to say only that evidence of subse-
quent treatment had limited interpretative value “in that case.” Post, at
949. But the dissent includes just a snippet of the relevant passage.
Read in full, there is little room to doubt Parker invoked a general rule:
“This subsequent demographic history cannot overcome our conclusion
that Congress did not intend to diminish the reservation in 1882. And it
is not our rule to `rewrite' the 1882 Act in light of this subsequent demo-
graphic history. DeCoteau, 420 U. S., at 447. After all, evidence of the
changing demographics of disputed land is `the least compelling ' evidence
in our diminishment analysis, for `[e]very surplus land Act necessarily re-
sulted in a surge of non-Indian settlement and degraded the “Indian char-
acter” of the reservation, yet we have repeatedly stated that not every
surplus land Act diminished the affected reservation.' Yankton Sioux,
522 U. S., at 356. . . . Evidence of the subsequent treatment of the dis-
puted land by Government offcials likewise has `limited interpretive
value.' Id., at 355.” 577 U. S., at 493.

916 M
cGIRT v. OKLAHOMA
Opinion of the Court
the time of the law's adoption, not as an alternative means
of
proving disestablishment or diminishment.
To avoid further confusion, we restate the point. There
is no need to consult extratextual sources when the meaning
of a statute's terms is clear. Nor may extratextual sources
overcome those terms. The only role such materials can
properly play is to help “clear up . . . not create” ambiguity
about a statute's original meaning. Milner v. Department
of Navy, 562 U. S. 562, 574 (2011). And, as we have said
time and again, once a reservation is established, it retains
that status “until Congress explicitly indicates otherwise.”
Solem, 465 U. S., at 470 (citing Celestine, 215 U. S., at 285);
see also Yankton Sioux, 522 U. S., at 343 (“[O]nly Congress
can alter the terms of an Indian treaty by diminishing a res-
ervation, and its intent to do so must be clear and plain”
(citation and internal quotation marks omitted)).
The dissent charges that we have failed to take account of
the “compelling reasons” for considering extratextual evi-
dence as a matter of course. Post, at 948. But Oklahoma
and the dissent have cited no case in which this Court has
found a reservation disestablished without frst concluding
that a statute required that result. Perhaps they wish this
case to be the frst. To follow Oklahoma and the dissent
down that path, though, would only serve to allow States and
courts to fnish work Congress has left undone, usurp the
legislative function in the process, and treat Native Ameri-
can claims of statutory right as less valuable than others.
None of that can be reconciled with our normal interpretive
rules, let alone our rule that disestablishment may not be
lightly inferred and treaty rights are to be construed in favor
of, not against, tribal rights. Solem, 465 U. S., at 472.
9
9
In an effort to support its very different course, the dissent stitches
together quotes from Rosebud Sioux Tribe v. Knelp, 430 U. S. 584 (1977),
and South Dakota v. Yankton Sioux Tribe, 522 U. S. 329 (1998). Post, at
947. But far from supporting the dissent, both cases emphasize that
“[t]he focus of our inquiry is congressional intent,” Rosebud, 430 U. S., at

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To see the perils of substituting stories for statutes, we
need
look no further than the stories we are offered in the
case before us. Put aside that the Tribe could tell more than
a few stories of its own: Take just the evidence on which
Oklahoma and the dissent wish to rest their case. First,
they point to Oklahoma's long historical prosecutorial prac-
tice of asserting jurisdiction over Indians in state court, even
for serious crimes on the contested lands. If the Creek
lands really were part of a reservation, the argument goes,
all of these cases should have been tried in federal court
pursuant to the MCA. Yet, until the Tenth Circuit's Mur-
phy decision a few years ago, no court embraced that possi-
bility. See Murphy, 875 F. 3d 896. Second, they offer
statements from various sources to show that “everyone” in
the late 19th and early 20th century thought the reservation
system—and the Creek Nation—would be disbanded soon.
Third, they stress that non-Indians swiftly moved on to the
reservation in the early part of the last century, that Tribe
members today constitute a small fraction of those now re-
siding on the land, and that the area now includes a “vibrant
city with expanding aerospace, healthcare, technology, manu-
facturing, and transportation sectors.” Brief for Petitioner
in Sharp v. Murphy, O. T. 2018, No. 17–1107, p. 15. All this
history, we are told, supplies “compelling ” evidence about
the lands in question.
Maybe so, but even taken on its own terms none of this
evidence tells the story we are promised. Start with the
State's argument about its longstanding practice of asserting
jurisdiction over Native Americans. Oklahoma proceeds on
the implicit premise that its historical practices are unlikely
588, n. 4; see also Yankton Sioux, 522 U. S., at 343, and merely acknowl-
edge that extratextual sources may help resolve ambiguity about Con-
gress's directions. The dissent's appeal to Solem fares no better. As we
have seen, the extratextual sources in Solem only confrmed what the
relevant statute already suggested—that the reservation in question was
not diminished or disestablished. 465 U. S., at 475–476.

918 M
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to have defed the mandates of the federal MCA. That
premise
, though, appears more than a little shaky. In con-
junction with the MCA, § 1151(a) not only sends to federal
court certain major crimes committed by Indians on reserva-
tions. Two doors down, in § 1151(c), the statute does the
same for major crimes committed by Indians on “Indian al-
lotments, the Indian titles to which have not been extin-
guished.” Despite this direction, however, Oklahoma state
cour ts erroneously enter tained prosecuti ons for major
crimes by Indians on Indian allotments for decades, until
state courts fnally disavowed the practice in 1989. See
State v. Klindt, 782 P. 2d 401, 404 (Okla. Crim. App. 1989)
(overruling Ex parte Nowabbi, 60 Okla. Crim. III, 61 P. 2d
1139 (1936)); see also United States v. Sands, 968 F. 2d 1058,
1062–1063 (CA10 1992). And if the State's prosecution prac-
tices disregarded § 1151(c) for so long, it's unclear why we
should take those same practices as a reliable guide to the
meaning and application of § 1151(a).
Things only get worse from there. Why did Oklahoma
historically think it could try Native Americans for any
crime committed on restricted allotments or anywhere else?
Part of the explanation, Oklahoma tells us, is that it thought
the eastern half of the State was always categorically ex-
empt from the terms of the federal MCA. So whether a
crime was committed on a restricted allotment, a reserva-
tion, or land that wasn't Indian country at all, to Oklahoma
it just didn't matter. In the State's view, when Congress
adopted the Oklahoma Enabling Act that paved the way for
its admission to the Union, it carved out a special exception
to the MCA for the eastern half of the State where the Creek
lands can be found. By Oklahoma's own admission, then, for
decades its historical practices in the area in question didn't
even try to conform to the MCA, all of which makes the
State's past prosecutions a meaningless guide for determin-
ing what counted as Indian country. As it turns out, too,
Oklahoma's claim to a special exemption was itself mistaken,

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Opinion of the Court
yet one more error in historical practice that even the dis-
sent
does not attempt to defend. See Part V, infra.
10
To be fair, Oklahoma is far from the only State that has
overstepped its authority in Indian country. Perhaps often
in good faith, perhaps sometimes not, others made similar
mistakes in the past. But all that only underscores further
the danger of relying on state practices to determine the
meaning of the federal MCA. See, e. g., Negonsott, 507
U. S., at 106–107 (“[I]n practice, Kansas had exercised juris-
diction over all offenses committed on Indian reservations
involving Indians” (citing memorandum from Secretary of
the Interior, H. R. Rep. No. 1999, 76th Cong., 3d Sess., 4
(1940))); Scherer, Imperfect Victories, at 18 (describing “na-
tionwide jurisdictional confusion” as a result of the MCA);
Cohen § 6.04(4)(a) (“Before 1942, the state of New York regu-
larly exercised or claimed the right to exercise jurisdiction
over the New York reservations, but a federal court decision
in that year raised questions about the validity of state juris-
diction” (footnote omitted)); Brief for United States as
Amicus Curiae in Sharp v. Murphy, O. T. 2018, No. 17–1107,
pp. 7a–8a (Letter from Secretary of the Interior, Mar. 27, 1963)
(noting that many States have asserted criminal jurisdiction
over Indians without an apparent basis in a federal law).
11
10
The dissent tries to avoid this inconvenient history by distinguishing
fee allotments from reservations, noting that the two categories are le-
gally distinct and geographically incommensurate. Post, at 964. But this
misses the point: The reason that Oklahoma thought it could prosecute
Indians for crimes on restricted allotments applied with equal force to
reservations. And it hardly “stretches the imagination” to think that rea-
son was wrong, post, at 965, when the dissent itself does not dispute our
rejection of it in Part V.
11
Unable to answer Oklahoma's admitted error about the very federal
criminal statute before us, the dissent travels far afeld, pointing to the
fact an Oklahoma court heard a civil case in 1915 about an inheritance—
involving members of a different Tribe—as “evidence” Congress disestab-
lished the Creek Reservation. See post, at 957 (citing Palmer v. Cully,
52 Okla. 454, 463–469, 153 P. 154, 157–158 (1915) (per curiam)). But even
assuming that Oklahoma courts exercised civil jurisdiction over Creek

920 M
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Oklahoma next points to various statements during the
a
llotment era which, it says, show that even the Creek un-
derstood their reservation was under threat. And there's
no doubt about that. By 1893, the leadership of the Creek
Nation saw what the federal government had in mind:
“They [the federal government] do not deny any of our rights
under treaty, but say they will go to the people themselves
and confer with them and urge upon them the necessity of a
change in their present condition, and upon their refusal will
force a change upon them.” P. Porter & A. McKellop,
Printed Statement of Creek Delegates, reprinted in Creek
Delegation Documents 8–9 (Feb. 9, 1893). Not a decade
later, and as a result of these forced changes, the leadership
recognized that “ `[i]t would be diffcult, if not impossible to
successfully operate the Creek government now.' ” App. to
Brief for Respondent 8a (Message to Creek National Council
(May 7, 1901), reprinted in The Indian Journal (May 10,
1901)). Surely, too, the future looked even bleaker: “ `[T]he
remnant of a government now accorded to us can be ex-
pected to be maintained only until all settlements of our
landed and other interests growing out of treaty stipulations
with the government of the United States shall have been
settled.' ” Ibid.
But note the nature of these statements. The Creek Na-
tion recognized that the federal government will seek to get
popular support or otherwise would force change. Like-
wise, the Tribe's government would continue for only so
long. These were prophesies, and hardly groundbreaking
ones at that. After all, the 1901 Creek Allotment Agree-
ment explicitly said that the tribal government “shall not
members, too, the dissent never explains why this jurisdiction implies the
Creek Reservation must have been disestablished. After all, everyone
agrees that the Creeks were prohibited from having their own courts at
the time. So it should be no surprise that some Creek might have re-
sorted to state courts in hope of resolving their disputes.

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continue” past 1906. § 46, 31 Stat. 872. So what might
st
atements like these tell us that isn't already evident from
the statutes themselves? Oklahoma doesn't suggest they
shed light on the meaning of some disputed and ambiguous
statutory direction. More nearly, the State seeks to render
the Creek's fears self-fulflling.
12
We are also asked to consider commentary from those out-
side the Tribe. In particular, the dissent reports that the
federal government “operated” on the “understanding ” that
the reservation was disestablished. Post, at 968. In sup-
port of its claim, the dissent highlights a 1941 statement from
Felix Cohen. Then serving as an offcial at the Interior De-
partment, Cohen opined that “ `all offenses by or against In-
dians' in the former Indian Territory `are subject to State
laws.' ” Ibid. (quoting App. to Supp. Reply Brief for Peti-
tioner in Sharp v. Murphy, O. T. 2018, No. 17–1107, p. 1a
(Memorandum for Commissioner of Indian Affairs (July 11,
1941)). But that statement is incorrect. As we have just
seen, Oklahoma's courts acknowledge that the State lacks ju-
risdiction over Indian crimes on Indian allotments. See
Klindt, 782 P. 2d, at 403–404. And the dissent does not dis-
pute that Oklahoma is without authority under the MCA to
try Indians for crimes committed on restricted allotments
and any reservation. All of which highlights the pitfalls of
elevating commentary over the law.
13
12
The dissent fnds the statements of the Creek leadership so probative
that it cites them not just as evidence about the meaning of treaties the
Tribe signed but even as evidence about the meaning of general purpose
laws the Creek had no hand in. See post, at 962 (citing Chief Porter's
views on the legal effects of the Oklahoma Enabling Act). That is quite
a stretch from using tribal statements as “historical evidence of `the man-
ner in which [treaties were] negotiated' with the . . . Tribe.” Parker, 577
U. S., at 491 (quoting Solem v. Bartlett, 465 U. S. 463, 471 (1984)).
13
Part of the reason for Cohen's error might be explained by a portion
of the memorandum the dissent leaves unquoted. Cohen concluded that
Oklahoma was free to try Indians anywhere in the State because, among

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Finally, Oklahoma points to the speedy and persistent
movement
of white settlers onto Creek lands throughout the
late 19th and early 20th centuries. But this history proves
no more helpful in discerning statutory meaning. Maybe, as
Oklahoma supposes, it suggests that some white settlers in
good faith thought the Creek lands no longer constituted a
reservation. But maybe, too, some didn't care and others
never paused to think about the question. Certain histori-
ans have argued, for example, that the loss of Creek land
ownership was accelerated by the discovery of oil in the re-
gion during the period at issue here. A number of the fed-
eral offcials charged with implementing the laws of Con-
gress were apparently openly conficted, holding shares or
board positions in the very oil companies who sought to de-
prive Indians of their lands. A. Debo, And Still the Waters
Run 86–87, 117–118 (1940). And for a time Oklahoma's
courts appear to have entertained sham competency and
guardianship proceedings that divested Tribe members of oil
rich allotments. Id., at 104–106, 233–234; Brief for Histori-
ans et al. as Amici Curiae 26–30. Whatever else might be
other things, the Oklahoma Enabling Act “transfer[red] . . . jurisdiction
from the Federal courts to the State courts upon the establishment of the
State of Oklahoma.” App. to Supp. Reply Brief for Petitioner in Sharp v.
Murphy, O. T. 2018, No. 17–1107, p. 1a (Memorandum for Commissioner of
Indian Affairs (July 11, 1941)). Yet, as we explore below, the Oklahoma
Enabling Act did not send cases covered by the federal MCA to state
court. See Part V, in fra. Other, contemporaneous Interior Department
memoranda acknowledged that Oklahoma state courts had simply “as-
sumed jurisdiction” over cases arising on restricted allotments without
any clear authority in the Oklahoma Enabling Act or the MCA, and much
the same appears to have occurred here. App. to Supp. Reply Brief for
Respondent in Sharp v. Murphy, O. T. 2018, No. 17–1107, p. 1a (Memo-
randum from N. Gray, Dept. of Interior, for Mr. Flanery (Aug. 12,
1942)). So rather than Oklahoma and the United States having a “shared
understanding ” that Congress had disestablished the Creek Reser-
vation, post, at 963, it seems more accurate to say that for many years
much uncertainty remained about whether the MCA applied in eastern
Oklahoma.

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said about the history and demographics placed before us,
they
hardly tell a story of unalloyed respect for tribal
interests.
14
In the end, only one message rings true. Even the care-
fully selected history Oklahoma and the dissent recite is not
nearly as tidy as they suggest. It supplies us with little
help in discerning the law's meaning and much potential for
mischief. If anything, the persistent if unspoken message
here seems to be that we should be taken by the “practical
advantages” of ignoring the written law. How much easier
it would be, after all, to let the State proceed as it has always
assumed it might. But just imagine what it would mean to
indulge that path. A State exercises jurisdiction over Na-
tive Americans with such persistence that the practice seems
normal. Indian landowners lose their titles by fraud or oth-
erwise in suffcient volume that no one remembers whose
land it once was. All this continues for long enough that a
reservation that was once beyond doubt becomes question-
able, and then even farfetched. Sprinkle in a few predic-
tions here, some contestable commentary there, and the job
14
The dissent asks us to examine a hodge-podge of other, but no more
compelling, material. For example, the dissent points to later statutes
that do no more than confrm there are former reservations in the State
of Oklahoma. Post, at 966–967. It cites legislative history to show that
Congress had the Creek Nation—or, at least, its neighbors—in mind when
it added these in 1988. Post, at 967, n. 7. The dissent cites a Senate
Report from 1989 and post-1980 statements made by representatives of
other tribes. Post, at 966, 968–969. It highlights three occasions on
which this Court referred to something like a “former Creek Nation,”
though it neglects to add that in each the Court was referring to the loss
of the Nation's communal fee title, not its sovereignty. Grayson v. Har-
ris, 267 U. S. 352, 353, 357 (1925); Woodward v. De Graffenreid, 238 U. S.
284, 289–290 (1915); Washington v. Miller, 235 U. S. 422, 423–425 (1914).
The dissent points as well to a single instance in which the Creek Nation
disclaimed reservation boundaries for purposes of litigation in a lower
court, post, at 969, but ignores that the Creek Nation has repeatedly fled
briefs in this Court to the contrary. This is thin gruel to set against
treaty promises enshrined in statutes.

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is done, a reservation is disestablished. None of these
moves
would be permitted in any other area of statutory
interpretation, and there is no reason why they should be
permitted here. That would be the rule of the strong, not
the rule of law.
IV
Unable to show that Congress disestablished the Creek
Reservation, Oklahoma next tries to turn the tables in a com-
pletely different way. Now, it contends, Congress never es-
tablished a reservation in the frst place. Over all the years,
from the federal government's frst guarantees of land and
self-government in 1832 and through the litany of promises
that followed, the Tribe never received a reservation. In-
stead, what the Tribe has had all this time qualifes only as
a “dependent Indian community.”
Even if we were to accept Oklahoma's bold feat of reclassi-
fcation, however, it's hardly clear the State would win this
case. “Reservation[s]” and “Indian allotments, the Indian
titles to which have not been extinguished,” qualify as Indian
country under subsections (a) and (c) of § 1151. But “de-
pendent Indian communities” also qualify as Indian country
under subsection (b). So Oklahoma lacks jurisdiction to
prosecute Mr. McGirt whether the Creek lands happen to fall
in one category or another.
About this, Oklahoma is at least candid. It admits the
entire point of its reclassifcation exercise is to avoid Solem's
rule that only Congress may disestablish a reservation.
And to achieve that, the State has to persuade us not only
that the Creek lands constitute a “dependent Indian commu-
nity” rather than a reservation. It also has to convince us
that we should announce a rule that dependent Indian
community status can be lost more easily than reserva-
tion status, maybe even by the happenstance of shifting
demographics.
To answer this argument, it's enough to address its frst
essential premise. Holding that the Creek never had a res-

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925
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ervation would require us to stand willfully blind before a
host
of federal statutes. Perhaps that is why the Solicitor
General, who supports Oklahoma's disestablishment argu-
ment, refuses to endorse this alternative effort. It also may
be why Oklahoma introduced this argument for affrmance
only for the frst time in this Court. And it may be why the
dissent makes no attempt to defend Oklahoma here. What
are we to make of the federal government's repeated treaty
promises that the land would be “solemnly guarantied to the
Creek Indians,” that it would be a “permanent home,” “for-
ever set apart,” in which the Creek would be “secured in the
unrestricted right of self-government”? What about Con-
gress's repeated references to a “Creek reservation” in its
statutes? No one doubts that this kind of language nor-
mally suffces to establish a federal reservation. So what
could possibly make this case different?
Oklahoma's answer only gets more surprising. The rea-
son that the Creek's lands are not a reservation, we're told,
is that the Creek Nation originally held fee title. Recall
that the Indian Removal Act authorized the President not
only to “solemnly . . . assure the tribe . . . that the United
States will forever secure and guaranty to them . . . the coun-
try so exchanged with them,” but also, “if they prefer it, . . .
the United States will cause a patent or grant to be made
and executed to them for the same.” 4 Stat. 412. Recall
that the Creek insisted on this additional protection when
negotiating the Treaty of 1833, and in fact received a land
patent pursuant to that treaty some 19 years later. In the
eyes of Oklahoma, the Tribe's choice on this score was a fate-
ful one. By asking for (and receiving) fee title to their lands,
the Creek inadvertently made their tribal sovereignty easier
to divest rather than harder.
The core of Oklahoma's argument is that a reservation
must be land “reserved from sale.” Celestine, 215 U. S., at
285. Often, that condition is satisfed when the federal gov-
ernment promises to hold aside a particular piece of federally

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owned land in trust for the beneft of the Tribe. And, admit-
tedly
, the Creek's arrangement was different, because the
Tribe held “fee simple title, not the usual Indian right of
occupancy.” United States v. Creek Nation, 295 U. S. 103,
109 (1935). Still, as we explained in Part II, the land was
reserved from sale in the very real sense that the govern-
ment could not “give the tribal lands to others, or to appro-
priate them to its own purposes,” without engaging in “ `an
act of confscation.' ” Id., at 110.
It's hard to see, too, how any difference between these two
arrangements might work to the detriment of the Tribe.
Just as we have never insisted on any particular form of
words when it comes to disestablishing a reservation, we
have never done so when it comes to establishing one. See
Minnesota v. Hitchcock, 185 U. S. 373, 390 (1902) (“[I]n order
to create a reservation it is not necessary that there should
be a formal cession or a formal act setting apart a particular
tract. It is enough that from what has been done there re-
sults a certain defned tract appropriated to certain pur-
poses”). As long as 120 years ago, the federal court for the
Indian Territory recognized all this and rightly rejected the
notion that fee title is somehow inherently incompatible with
reservation status. Maxey v. Wright, 54 S. W. 807, 810 (In-
dian Terr. 1900).
By now, Oklahoma's next move will seem familiar. Seek-
ing to sow doubt around express treaty promises, it cites
some stray language from a statute that does not control
here, a piece of congressional testimony there, and the scat-
tered opinions of agency offcials everywhere in between.
See, e. g., Act of July 31, 1882, ch. 360, 22 Stat. 179 (referring
to Creek land as “Indian country” as opposed to an “Indian
reservation”); S. Doc. No. 143, 59th Cong., 1st. Sess., 33
(1906) (Chief of Choctaw Nation—which had an arrangement
similar to the Creek's—testifed that both Tribes “object to
being classifed with the reservation Indians”); Dept. of Inte-
rior, Census Offce, Report on Indians Taxed and Indians

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Not Taxed in the U. S. 284 (1894) (Creeks and neighboring
Tr
ibes were “not on the ordinary Indian reservation, but on
lands patented to them by the United States”). Oklahoma
stresses that this Court even once called the Creek lands a
“dependent Indian community,” though it used that phrase
in passing and only to show that the Tribe's “property and
affairs were subject to the control and management of that
government”—a point that would also be true if the lands
were a reservation. Creek Nation, 295 U. S., at 109. Un-
surprisingly given the Creek Nation's nearly 200-year occu-
pancy of these lands, both sides have turned up a few clues
suggesting the label “reservation” either did or did not apply.
One thing everyone can agree on is this history is long and
messy.
But the most authoritative evidence of the Creek's rela-
tionship to the land lies not in these scattered references; it
lies in the treaties and statutes that promised the land to the
Tribe in the frst place. And, if not for the Tribe's fee title
to its land, no one would question that these treaties and
statutes created a reservation. So the State's argument in-
escapably boils down to the untenable suggestion that, when
the federal government agreed to offer more protection for
tribal lands, it really provided less. All this time, fee title
was nothing more than another trap for the wary.
V
That leaves Oklahoma to attempt yet another argument in
the alternative. We alluded to it earlier in Part III. Now,
the State accepts for argument's sake that the Creek land is
a reservation and thus “Indian country” for purposes of the
Major Crimes Act. It accepts, too, that this would normally
mean serious crimes by Indians on the Creek Reservation
would have to be tried in federal court. But, the State tells
us, none of that matters; everything the parties have briefed
and argued so far is beside the point. It's all irrelevant be-
cause it turns out the MCA just doesn't apply to the eastern

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half of Oklahoma, and it never has. That federal law may
apply
to other States, even to the western half of Oklahoma
itself. But eastern Oklahoma is and has always been ex-
empt. So whether or not the Creek have a reservation, the
State's historic practices have always been correct and it re-
mains free to try individuals like Mr. McGirt in its own
courts.
Notably, the dissent again declines to join Oklahoma in its
latest twist. And, it turns out, for good reason. In support
of its argument, Oklahoma points to statutory artifacts from
its territorial history. The State of Oklahoma was formed
from two territories: the Oklahoma Territory in the west and
Indian Territory in the east. Originally, it seems criminal
prosecutions in the Indian Territory were split between
tribal and federal courts. See Act of May 2, 1890, § 30, 26
Stat. 94. But, in 1897, Congress abolished that scheme,
granting the U. S. Courts of the Indian Territory “exclusive
jurisdiction” to try “all criminal causes for the punishment
of any offense.” Act of June 7, 1897, 30 Stat. 83. These
federal territorial courts applied federal law and state law
borrowed from Arkansas “to all persons . . . irrespective of
race.” Ibid. A year later, Congress abolished tribal courts
and transferred all pending criminal cases to U. S. courts of
the Indian Territory. Curtis Act of 1898, § 28, 30 Stat. 504–
505. And, Oklahoma says, sending Indians to federal court
and all others to state court would be inconsistent with this
established and enlightened policy of applying the same law
in the same courts to everyone.
Here again, however, arguments along these and similar
lines have been “frequently raised” but rarely “accepted.”
United States v. Sands, 968 F. 2d 1058, 1061 (CA10 1992)
(Kelly, J.). “The policy of leaving Indians free from state
jurisdiction and control is deeply rooted in the Nation's his-
tory.” Rice v. Olson, 324 U. S. 786, 789 (1945). Chief Jus-
tice Marshall, for example, held that Indian Tribes were “dis-
tinct political communities, having territorial boundaries,
within which their authority is exclusive, . . . which is not

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Opinion of the Court
only acknowledged, but guarantied by the United States,” a
power
dependent on and subject to no state authority.
Worcester v. Georgia, 6 Pet. 515, 557 (1832); see also McCla-
nahan v. Arizona Tax Comm'n, 411 U. S. 164, 168–169
(1973). And in many treaties, like those now before us, the
federal government promised Indian Tribes the right to con-
tinue to govern themselves. For all these reasons, this
Court has long “require[d] a clear expression of the intention
of Congress” before the state or federal government may try
Indians for conduct on their lands. Ex parte Crow Dog, 109
U. S. 556, 572 (1883).
Oklahoma cannot come close to satisfying this standard.
In fact, the only law that speaks expressly here speaks
against the State. When Oklahoma won statehood in 1907,
the MCA applied immediately according to its plain terms.
That statute, as phrased at the time, provided exclusive fed-
eral jurisdiction over qualifying crimes by Indians in “any
Indian reservation” located within “the boundaries of any
State.” Act of Mar. 3, 1885, ch. 341, § 9, 23 Stat. 385 (empha-
sis added); see also 18 U. S. C. § 1151 (defning “Indian coun-
try” even more broadly). By contrast, every one of the stat-
utes the State directs us to merely discusses the assignment
of cases among courts in the Indian Territory. They say
nothing about the division of responsibilities between federal
and state authorities after Oklahoma entered the Union.
And however enlightened the State may think it was for ter-
ritorial law to apply to all persons irrespective of race, some
Tribe members may see things differently, given that the
same policy entailed the forcible closure of tribal courts in
defance of treaty terms.
Left to hunt for some statute that might have rendered
the MCA inapplicable in Oklahoma after statehood, the best
the State can fnd is the Oklahoma Enabling Act. Congress
adopted that law in preparation for Oklahoma's admission
in 1907. Among its many provisions sorting out the details
associated with Oklahoma's transition to statehood, the En-
abling Act transferred all nonfederal cases pending in terri-

930 M
cGIRT v. OKLAHOMA
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torial courts to Oklahoma's new state courts. Act of June
16,
1906, § 20, 34 Stat. 277; see also Act of Mar. 4, 1907, § 3,
34 Stat. 1287 (clarifying treatment of cases to which United
States was a party). The State says this transfer made
its courts the inheritors of the federal territorial courts'
sweeping authority to try Indians for crimes committed on
reservations.
But, at best, this tells only half the story. The Enabling
Act not only sent all nonfederal cases pending in territorial
courts to state court. It also transferred pending cases that
arose “under the Constitution, laws, or treaties of the United
States” to federal district courts. § 16, 34 Stat. 276. Pend-
ing criminal cases were thus transferred to federal court if
the prosecution would have belonged there had the Territory
been a State at the time of the crime. § 1, 34 Stat. 1287
(amending the Enabling Act). Nor did the statute make any
distinction between cases arising in the former eastern (In-
dian) and western (Oklahoma) territories. So, simply put,
the Enabling Act sent state-law cases to state court and
federal-law cases to federal court. And serious crimes by
Indians in Indian country were matters that arose under the
federal MCA and thus properly belonged in federal court
from day one, wherever they arose within the new State.
Maybe that's right, Oklahoma acknowledges, but that's not
what happened. Instead, for many years the State contin-
ued to try Indians for crimes committed anywhere within its
borders. But what can that tell us? The State identifes
not a single ambiguous statutory term in the MCA that its
actions might illuminate. And, as we have seen, its own
courts have acknowledged that the State's historic practices
deviated in meaningful ways from the MCA's terms. See
supra, at 918–919. So, once more, it seems Oklahoma asks
us to defer to its usual practices instead of federal law, some-
thing we will not and may never do.
That takes Oklahoma down to its last straw when it comes
to the MCA. If Oklahoma lacks the jurisdiction to try Na-

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tive Americans it has historically claimed, that means at the
ti
me of its entry into the Union no one had the power to try
minor Indian-on-Indian crimes committed in Indian country.
This much follows, Oklahoma reminds us, because the MCA
provides federal jurisdiction only for major crimes, and no
tribal forum existed to try lesser cases after Congress abol-
ished the tribal courts in 1898. Curtis Act, § 28, 30 Stat.
504–505. Whatever one thinks about the plausibility of
other discontinuities between federal law and state practice,
the State says, it is unthinkable that Congress would have
allowed such a signifcant “jurisdictional gap” to open at the
moment Oklahoma achieved statehood.
But what the State considers unthinkable turns out to be
easily imagined. Jurisdictional gaps are hardly foreign to
this area of the law. See, e. g., Duro v. Reina, 495 U. S. 676,
704–706 (1990) (Brennan, J., dissenting). Many tribal courts
across the country were absent or ineffective during the
early part of the last century, yielding just the sort of gaps
Oklahoma would have us believe impossible. Indeed, this
might be why so many States joined Oklahoma in prosecut-
ing Indians without proper jurisdiction. The judicial mind
abhors a vacuum, and the temptation for state prosecutors
to step into the void was surely strong. See supra, at 919.
With time, too, Congress has flled many of the gaps Okla-
homa worries about. One way Congress has done so is by
reauthorizing tribal courts to hear minor crimes in Indian
country. Congress chose exactly this course for the Creeks
and others in 1936. Act of June 26, 1936, § 3, 49 Stat. 1967;
see also Hodel, 851 F. 2d, at 1442–1446. Another option
Congress has employed is to allow affected Indian tribes to
consent to state criminal jurisdiction. 25 U. S. C. §§ 1321(a),
1326. Finally, Congress has sometimes expressly expanded
state criminal jurisdiction in targeted bills addressing spe-
cifc States. See, e. g., 18 U. S. C. § 3243 (creating jurisdic-
tion for Kansas); Act of May 31, 1946, ch. 279, 60 Stat. 229
(same for a reservation in North Dakota); Act of June 30,

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1948, ch. 759, 62 Stat. 1161 (same for certain reservations in
Iowa);
18 U. S. C. § 1162 (creating jurisdiction for six addi-
tional States). But Oklahoma doesn't claim to have com-
plied with the requirements to assume jurisdiction voluntar-
ily over Creek lands. Nor has Congress ever passed a law
conferring jurisdiction on Oklahoma. As a result, the MCA
applies to Oklahoma according to its usual terms: Only the
federal government, not the State, may prosecute Indians
for major crimes committed in Indian country.
VI
In the end, Oklahoma abandons any pretense of law and
speaks openly about the potentially “transform[ative]” ef-
fects of a loss today. Brief for Respondent 43. Here, at
least, the State is fnally rejoined by the dissent. If we
dared to recognize that the Creek Reservation was never
disestablished, Oklahoma and the dissent warn, our holding
might be used by other tribes to vindicate similar treaty
promises. Ultimately, Oklahoma fears that perhaps as much
as half its land and roughly 1.8 million of its residents could
wind up within Indian country.
It's hard to know what to make of this self-defeating argu-
ment. Each tribe's treaties must be considered on their own
terms, and the only question before us concerns the Creek.
Of course, the Creek Reservation alone is hardly insignif-
cant, taking in most of Tulsa and certain neighboring
communities in Northeastern Oklahoma. But neither is it
unheard of for signifcant non-Indian populations to live
successfully in or near reservations today. See, e. g., Brief
for National Congress of American Indians Fund as Amicus
Curiae 26–28 (describing success of Tacoma, Washington,
and Mount Pleasant, Michigan); see also Parker, 577 U. S.,
at 492–494 (holding Pender, Nebraska, to be within Indian
country despite tribe's absence from the disputed territory
for more than 120 years). Oklahoma replies that its situa-
tion is different because the affected population here is large

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Opinion of the Court
and many of its residents will be surprised to fnd out they
have
been living in Indian country this whole time. But we
imagine some members of the 1832 Creek Tribe would be
just as surprised to fnd them there.
What are the consequences the State and dissent worry
might follow from an adverse ruling anyway? Primarily,
they argue that recognizing the continued existence of the
Creek Reservation could unsettle an untold number of con-
victions and frustrate the State's ability to prosecute crimes
in the future. But the MCA applies only to certain crimes
committed in Indian country by Indian defendants. A
neighboring statute provides that federal law applies to a
broader range of crimes by or against Indians in Indian coun-
try. See 18 U. S. C. § 1152. States are otherwise free to
apply their criminal laws in cases of non-Indian victims and
defendants, including within Indian country. See McBrat-
ney, 104 U. S., at 624. And Oklahoma tells us that some-
where between 10% and 15% of its citizens identify as Native
American. Given all this, even Oklahoma admits that the
vast majority of its prosecutions will be unaffected whatever
we decide today.
Still, Oklahoma and the dissent fear, “[t]housands” of Na-
tive Americans like Mr. McGirt “wait in the wings” to chal-
lenge the jurisdictional basis of their state-court convictions.
Brief for Respondent 3. But this number is admittedly
speculative, because many defendants may choose to fnish
their state sentences rather than risk reprosecution in fed-
eral court where sentences can be graver. Other defendants
who do try to challenge their state convictions may face sig-
nifcant procedural obstacles, thanks to well-known state and
federal limitations on postconviction review in criminal
proceedings.
15
15
For example, Oklahoma appears to apply a general rule that “issues
that were not raised previously on direct appeal, but which could have
been raised, are waived for further review.” Logan v. State, 2013 OK CR
2, ¶ 1, 293 P. 3d 969, 973. Indeed, Justice Thomas contends that this

934 M
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In any event, the magnitude of a legal wrong is no reason
to
perpetuate it. When Congress adopted the MCA, it
broke many treaty promises that had once allowed tribes
like the Creek to try their own members. But, in return,
Congress allowed only the federal government, not the
States, to try tribal members for major crimes. All our de-
cision today does is vindicate that replacement promise.
And if the threat of unsettling convictions cannot save a
precedent of this Court, see Ramos v. Louisiana, 590 U. S.
83, 109–111 (2020) (plurality opinion), it certainly cannot
force us to ignore a statutory promise when no precedent
stands before us at all.
What's more, a decision for either party today risks upset-
ting some convictions. Accepting the State's argument that
the MCA never applied in Oklahoma would preserve the
state-court convictions of people like Mr. McGirt, but simul-
taneously call into question every federal conviction obtained
for crimes committed on trust lands and restricted Indian
allotments since Oklahoma recognized its jurisdictional error
more than 30 years ago. See supra, at 918. It's a conse-
quence of their own arguments that Oklahoma and the dis-
sent choose to ignore, but one which cannot help but illus-
trate the diffculty of trying to guess how a ruling one way
or the other might affect past cases rather than simply pro-
ceeding to apply the law as written.
Looking to the future, Oklahoma warns of the burdens
federal and tribal courts will experience with a wider juris-
state-law limitation on collateral review prevents us from considering even
the case now before us. Post, at 974 (dissenting opinion). But while that
state-law rule may often bar our way, it doesn't in this case. After noting
a potential state-law obstacle, the Oklahoma Court of Criminal Appeals
(OCCA) proceeded to address the merits of Mr. McGirt's federal MCA
claim anyway. Because the OCCA's opinion “fairly appears to rest pri-
marily on federal law, or to be interwoven with the federal law,” and lacks
any “plain statement” that it was relying on a state-law ground, we have
jurisdiction to consider the federal-law question presented to us. See
Michigan v. Long, 463 U. S. 1032, 1040–1041, 1044 (1983).

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diction and increased caseload. But, again, for every juris-
dic
tional reaction there seems to be an opposite reaction: rec-
ognizing that cases like Mr. McGirt's belong in federal court
simultaneously takes them out of state court. So while the
federal prosecutors might be initially understaffed and Okla-
homa prosecutors initially overstaffed, it doesn't take a lot
of imagination to see how things could work out in the end.
Finally, the State worries that our decision will have sig-
nifcant consequences for civil and regulatory law. The only
question before us, however, concerns the statutory defni-
tion of “Indian country” as it applies in federal criminal law
under the MCA, and often nothing requires other civil stat-
utes or regulations to rely on defnitions found in the crimi-
nal law. Of course, many federal civil laws and regulations
do currently borrow from § 1151 when defning the scope of
Indian country. But it is far from obvious why this collat-
eral drafting choice should be allowed to skew our interpre-
tation of the MCA, or deny its promised benefts of a federal
criminal forum to tribal members.
It isn't even clear what the real upshot of this borrowing
into civil law may be. Oklahoma reports that recognizing
the existence of the Creek Reservation for purposes of the
MCA might potentially trigger a variety of federal civil stat-
utes and rules, including ones making the region eligible for
assistance with homeland security, 6 U. S. C. §§ 601, 606, his-
torical preservation, 54 U. S. C. § 302704, schools, 20 U. S. C.
§ 1443, highways, 23 U. S. C. § 120, roads, § 202, primary care
clinics, 25 U. S. C. § 1616e–1, housing assistance, § 4131, nutri-
tional programs, 7 U. S. C. §§ 2012, 2013, disability programs,
20 U. S. C. § 1411, and more. But what are we to make of
this? Some may fnd developments like these unwelcome,
but from what we are told others may celebrate them.
The dissent isn't so sanguine—it assures us, without fur-
ther elaboration, that the consequences will be “drastic pre-
cisely because they depart from . . . more than a century [of]
settled understanding.” Post, at 973. The prediction is a

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familiar one. Thirty years ago the Solicitor General warned
that
“[l]aw enforcement would be rendered very diffcult”
and there would be “grave uncertainty regarding the appli-
cation” of state law if courts departed from decades of “long-
held understanding ” and recognized that the federal MCA
applies to restricted allotments in Oklahoma. Brief for
United States as Amicus Curiae in Oklahoma v. Brooks,
O. T. 1988, No. 88–1147, pp. 2, 9, 18, 19. Yet, during the
intervening decades none of these predictions panned out,
and that fact stands as a note of caution against too readily
crediting identical warnings today.
More importantly, dire warnings are just that, and not a
license for us to disregard the law. By suggesting that our
interpretation of Acts of Congress adopted a century ago
should be infected based on the costs of enforcing them
today, the dissent tips its hand. Yet again, the point of look-
ing at subsequent developments seems not to be determining
the meaning of the laws Congress wrote in 1901 or 1906, but
emphasizing the costs of taking them at their word.
Still, we do not disregard the dissent's concern for reliance
interests. It only seems to us that the concern is misplaced.
Many other legal doctrines—procedural bars, res judicata,
statutes of repose, and laches, to name a few—are designed
to protect those who have reasonably labored under a mis-
taken understanding of the law. And it is precisely because
those doctrines exist that we are “fre[e] . . . to say what we
know to be true . . . today, while leaving questions about . . .
reliance interest[s] . . . for later proceedings crafted to account
for them.” Ramos, 590 U. S., at 109–110 (plurality opinion).
In reaching our conclusion about what the law demands of
us today, we do not pretend to foretell the future and we
proceed well aware of the potential for cost and confict
around jurisdictional boundaries, especially ones that have
gone unappreciated for so long. But it is unclear why pessi-
mism should rule the day. With the passage of time, Okla-
homa and its Tribes have proven they can work successfully

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together as partners. Already, the State has negotiated
hundreds
of intergovernmental agreements with tribes, in-
cluding many with the Creek. See Okla. Stat., Tit. 74, § 1221
(2019 Cum. Supp.); Oklahoma Secretary of State, Tribal
Compacts and Agreements, www.sos.ok.gov/ tribal.aspx.
These agreements relate to taxation, law enforcement, vehi-
cle registration, hunting and fshing, and countless other fne
regulatory questions. See Brief for Tom Cole et al. as
Amici Curiae 13–19. No one before us claims that the spirit
of good faith, “comity and cooperative sovereignty” behind
these agreements, id., at 20, will be imperiled by an adverse
decision for the State today any more than it might be by
a favorable one.
16
And, of course, should agreement prove
elusive, Congress remains free to supplement its statutory
directions about the lands in question at any time. It has
no shortage of tools at its disposal.
*
The federal government promised the Creek a reservation
in perpetuity. Over time, Congress has diminished that res-
ervation. It has sometimes restricted and other times ex-
panded the Tribe's authority. But Congress has never with-
drawn the promised reservation. As a result, many of the
arguments before us today follow a sadly familiar pattern.
Yes, promises were made, but the price of keeping them has
become too great, so now we should just cast a blind eye.
We reject that thinking. If Congress wishes to withdraw
its promises, it must say so. Unlawful acts, performed long
16
This sense of cooperation and a shared future is on display in this very
case. The Creek Nation is supported by an array of leaders of other
Tribes and the State of Oklahoma, many of whom had a role in negotiating
exactly these agreements. See Brief for Tom Cole et al. as Amici Curiae
1 (“Amici are a former Governor, state Attorney General, cabinet mem-
bers, and legislators of the State of Oklahoma, and two federally recog-
nized Indian tribes, the Chickasaw Nation and Choctaw Nation of Okla-
homa”) (brief authored by Robert H. Henry, also a former State Attorney
General and Chief Judge of the Tenth Circuit).

938 M
cGIRT v. OKLAHOMA
Roberts, C. J., dissenting
enough and with suffcient vigor, are never enough to amend
the
law. To hold otherwise would be to elevate the most
brazen and longst andi ng i n justices over the law, both
rewarding wrong and failing those in the right.
The judg ment of the Cour t of Cr i mi na l Appea ls of
Oklahoma is
Reversed.
Chief Justice Roberts, with whom Justice Alito and
Justice Kavanaugh join, and with whom Justice Thomas
joins except as to footnote 9, dissenting.
In 1997, the State of Oklahoma convicted petitioner Jimcy
McGirt of molesting, raping, and forcibly sodomizing a four-
year-old girl, his wife's granddaughter. McGirt was sen-
tenced to 1,000 years plus life in prison. Today, the Court
holds that Oklahoma lacked jur isdic ti on to prosecute
McGirt—on the improbable ground that, unbeknownst to
anyone for the past century, a huge swathe of Oklahoma is
actually a Creek Indian reservation, on which the State may
not prosecute serious crimes committed by Indians like Mc-
Girt. Not only does the Court discover a Creek reservation
that spans three million acres and includes most of the city
of Tulsa, but the Court's reasoning portends that there are
four more such reservations in Oklahoma. The rediscovered
reservations encompass the entire eastern half of the State—
19 million acres that are home to 1.8 million people, only
10%–15% of whom are Indians.
Across this vast area, the State's ability to prosecute seri-
ous crimes will be hobbled and decades of past convictions
could well be thrown out. On top of that, the Court has
profoundly destabilized the governance of eastern Oklahoma.
The decision today creates signifcant uncertainty for the
State's continuing authority over any area that touches In-
dian affairs, ranging from zoning and taxation to family and
environmental law.

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939
Roberts, C. J., dissenting
None of this is warranted. What has gone unquestioned
for
a century remains true today: A huge portion of Okla-
homa is not a Creek Indian reservation. Congress disestab-
lished any reservation in a series of statutes leading up to
Oklahoma statehood at the turn of the 19th century. The
Court reaches the opposite conclusion only by disregarding
the “well settled” approach required by our precedents. Ne-
braska v. Parker, 577 U. S. 481, 487 (2016).
Under those precedents, we determine whether Congress
intended to disestablish a reservation by examining the rele-
vant Acts of Congress and “all the [surrounding] circum-
stances,” including the “contemporaneous and subsequent
understanding of the status of the reservation.” Id., at 488
(internal quotation marks omitted). Yet the Court declines
to consider such understandings here, preferring to examine
only individual statutes in isolation.
Applying the broader inquiry our precedents require, a
reservation did not exist when McGirt committed his crimes,
so Oklahoma had jurisdiction to prosecute him. I respect-
fully dissent.
I
The Creek Nation once occupied what is now Alabama and
Georgia. In 1832, the Creek were compelled to cede these
lands to the United States in exchange for land in present
day Oklahoma. The expanse set aside for the Creek
and the other Indian nations that composed the “Five Civi-
lized Tribes”—the Cherokees, Chickasaws, Choctaws, and
Seminoles—became known as Indian Territory. See F.
Cohen, Handbook of Federal Indian Law § 4.07(1)(a), pp. 289–
290 (N. Newton ed. 2012) (Cohen). Each of the Five Tribes
formed a tripartite system of government. See Marlin v.
Lewallen, 276 U. S. 58, 60 (1928). They “enact[ed] and exe-
cut[ed] their own laws,” “punish[ed] their own criminals,”
and “rais[ed] and expend[ed] their own revenues.” Atlan-
tic & Pacifc R. Co. v. Mingus, 165 U. S. 413, 436 (1897).

940 M
cGIRT v. OKLAHOMA
Roberts, C. J., dissenting
The Five Tribes also enjoyed unique property rights.
W
hile many tribes held only a “right of occupancy” on lands
owned by the United States, United States v. Creek Nation,
295 U. S. 103, 109 (1935), each of the Five Tribes possessed
title to its lands in communal fee simple, meaning the lands
were “considered the property of the whole.” E. g., Treaty
with the Creeks, Arts. III and IV, Feb. 14, 1833, 7 Stat. 419;
see Marlin, 276 U. S., at 60. Congress promised the Tribes
that their lands would never be “included within, or annexed
to, any Territory or State,” see, e. g., Treaty with Creeks and
Seminoles, Art. IV, Aug. 7, 1856, 11 Stat. 700 (1856 Treaty),
and that their new homes would be “forever secure,” Indian
Removal Act, § 3, 4 Stat. 412; see also Treaty with the
Creeks, Arts. I and XIV, Mar. 24, 1832, 7 Stat. 368.
Forever, it turns out, did not last very long, because the
Civil War disrupted both relationships and borders. The
Five Tribes, whose members collectively held at least 8,000
slaves, signed treaties of alliance with the Confederacy and
contributed forces to fght alongside Rebel troops. See Gib-
son, Native Americans and the Civil War, 9 Am. Indian Q. 4,
385, 388–389, 393 (1985); Doran, Negro Slaves of the Five
Civilized Tribes, 68 Annals Assn. Am. Geographers 335, 346–
347, and Table 3 (1978); Cohen § 4.07(1)(a), at 289. After the
war, the United States and the Tribes formed new treaties,
which required each Tribe to free its slaves and allow them
to become tribal citizens. E. g., Treaty with the Creek Indi-
ans, Art. II, June 14, 1866, 14 Stat. 786 (1866 Treaty); see
Cohen § 4.07(1)(a), at 289, and n. 9. The treaties also stated
that the Tribes had “ignored their allegiance to the United
States” and “unsettled the [existing] treaty relati ons, ”
thereby rendering themselves “liable to forfeit” all “benefts
and advantages enjoyed by them”—including their lands.
E. g., 1866 Treaty, Preamble, 14 Stat. 785. Due to “said lia-
bilities,” the treaties departed from prior promises and re-
quired each Tribe to give up the “west half ” of its “entire
domain.” E. g., Preamble and Art. III, id., at 785–786.

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941
Roberts, C. J., dissenting
These western lands became the Oklahoma Territory. As
before
, the new treaties promised that the reduced Indian
Territory would be “forever set apart as a home” for the
Tribes. E. g., Art. III, id., at 786.
1
Again, however, it was not to last. In the wake of the
war, a renewed “determination to thrust the nation west-
ward” gripped the country. Cohen § 1.04, at 71. Spurred
by new railroads and protected by the repurposed Union
Army, settlers rapidly transformed vast stretches of territo-
rial wilderness into farmland and ranches. See id., at 71–
74. The Indian Territory was no exception. By 1900, over
300,000 settlers had poured in, outnumbering members of the
Five Tribes by over 3 to 1. See H. R. Rep. No. 1762, 56th
Cong., 1st Sess., 1 (1900). There to stay, the settlers
founded “[f]lourishing towns” along the railway lines that
crossed the territory. S. Rep. No. 377, 53d Cong., 2d Sess.,
6 (1894).
Coexistence proved complicated. The new towns had no
municipal governments or the things that come with them—
laws, taxes, police, and the like. See H. R. Doc. No. 5, 54th
Cong., 1st Sess., 89 (1895). No one had meaningful access
to private property ownership, as the unique communal titles
of the Five Tribes precluded ownership by Indians and non-
Indians alike. Despite the millions of dollars that had been
invested in the towns and farmlands, residents had no dura-
ble claims to their improvements. Ibid. Members of the
Tribes were little better off, as the Tribes failed to hold the
communal lands for the “equal beneft” of all members.
1
I assume that the Creek Nation's territory constituted a “reservation”
at this time. See ante, at 901–902. The State contends that no reserva-
tion existed in the frst place because the territory instead constituted a
“dependent Indian communit[y].” Brief for Respondent 8 (quoting 18
U. S. C. § 1151(b)). The United States disagrees and states that defning
the territory as a dependent Indian community could disrupt the applica-
tion of various federal statutes. Tr. of Oral Arg. 79–80. I do not address
this debate because, regardless, I conclude that any reservation was
disestablished.

942 M
cGIRT v. OKLAHOMA
Roberts, C. J., dissenting
Woodward v. De Graffenried, 238 U. S. 284, 297 (1915). In-
stead,
a few “enterprising citizens” of the Tribes “appro-
priate[d] to their exclusive use almost the entire property of
the Territory that could be rendered proftable.” Id., at 297,
299, n. 1 (internal quotation marks omitted). As a result,
“the poorer class of Indians [were] unable to secure enough
lands for houses and farms,” and “the great body of the tribe
derive[d] no more beneft from their title than the neighbors
in Kansas, Arkansas, or Missouri.” Id., at 299–301, n. 1 (em-
phasis deleted; internal quotation marks omitted).
Attuned to these new realities, Congress decided that it
could not maintain an Indian Territory predicated on “exclu-
sion of the Indians from the whites.” S. Rep. No. 377, at 6.
Congress therefore set about transforming the Indian Terri-
tory into a State.
Congress began by establishing a uniform body of law ap-
plicable to all occupants of the territory, regardless of race.
To apply these laws, Congress established the U. S. Courts
for the Indian Territory. Next Congress systematically dis-
mantled the tribal governments. It abolished tribal courts,
hollowed out tribal lawmaking power, and stripped tribal
taxing authority. Congress also eliminated the foundation
of tribal sovereignty, extinguishing the Creek Nation's title
to the lands. Finally, Congress made the tribe members cit-
izens of the United States and incorporated them in the
drafting and ratifcation of the constitution for their new
State, Oklahoma.
In taking these transformative steps, Congress made no
secret of its intentions. It created a commission tasked with
extinguishing the Five Tribes' territory and, in one report
after another, explained that it was creating a homogenous
population led by a common government. That contempora-
neous understanding was shared by the tribal leadership and
the State of Oklahoma. The tribal leadership acknowledged
that its only remaining power was to parcel out the last of

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943
Roberts, C. J., dissenting
its land, and the State assumed jurisdiction over criminal
cases
that, if a reservation had continued to exist, would
have belonged in federal court.
A century of practice confrms that the Five Tribes' prior
domains were extinguished. The State has maintained un-
questioned jurisdiction for more than 100 years. Tribe
members make up less than 10%–15% of the population of
their former domain, and until a few years ago the Creek
Nation itself acknowledged that it no longer possessed the
reservation the Court discovers today. This on-the-ground
reality is enshrined throughout the U. S. Code, which repeat-
edly terms the Five Tribes' prior holdings the “former” In-
dian reservations in Oklahoma. As the Tribes, the State,
and Congress have recognized from the outset, those “reser-
vations were destroyed” when “Oklahoma entered the
union.” S. Rep. No. 101–216, pt. 2, p. 47 (1989).
II
Much of this important context is missing from the Court's
opinion, for the Court restricts itself to viewing each of the
statutes enacted by Congress in a vacuum. That approach
is wholly inconsistent with our precedents on reservation
disestablishment, which require a highly contextual inquiry.
Our “touchstone” is congressional “purpose” or “intent.”
South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 343
(1998). To “decipher Congress' intention” in this specialized
area, we are instructed to consider three categories of
evidence: the relevant Acts passed by Congress; the contem-
poraneous understanding of those Acts and the historical
context surrounding their passage; and the subsequent
understanding of the status of the reservation and the pat-
tern of settlement there. Solem v. Bartlett, 465 U. S. 463,
470–472 (1984). The Court resists calling these “steps,” be-
cause “the only `step' proper for a court of law” is interpret-
ing the laws enacted by Congress. Ante, at 913–914. Any

944 M
cGIRT v. OKLAHOMA
Roberts, C. J., dissenting
label is fne with us. What matters is that these are catego-
r
ies of evidence that our precedents “direct[ ] us” to examine
in determining whether the laws enacted by Congress dises-
tablished a reservation. Hagen v. Utah, 510 U. S. 399, 410–
411 (1994). Because those precedents are not followed by
the Court today, it is necessary to describe several at length.
2
In Solem v. Bartlett, 465 U. S. 463 (1984), a unanimous
Court summarized the appropriate methodology. “Con-
gress [must] clearly evince an intent to change boundaries
before diminishment will be found.” Id., at 470 (internal
quotation marks and alterations omitted). This inquiry frst
considers the “statutory language used to open the Indian
lands,” which is the “most probative evidence of congres-
sional intent.” Ibid. “Explicit reference to cession or
other language evidencing the present and total surrender
of all tribal interests strongly suggests that Congress meant
to divest from the reservation all unallotted opened lands.”
Ibid. But “explicit language of cession and unconditional
compensation are not prerequisites” for a fnding of disestab-
lishment. Id., at 471.
Second, we consider “events surrounding the passage of
[an] Act—particularly the manner in which the transaction
was negotiated with the tribes involved and the tenor of leg-
islative Reports presented to Congress.” Ibid. When such
materials “unequivocally reveal a widely held, contempora-
neous understanding that the affected reservation would
shrink as a result of the proposed legislation,” we will “infer
that Congress shared the understanding that its action
2
Our precedents have generally considered whether Congress disestab-
lished or diminished a reservation by enacting “surplus land Acts” that
opened land to non-Indian settlement. Here Congress did much more
than that, as I will explain. Even so, there is broad agreement among
the parties, the United States, the Creek Nation, and even the Court that
our precedents on surplus land Acts provide the governing framework for
this case, so I proceed on the same course. See Brief for Petitioner 1;
Brief for Respondent 29, 35, 40; Brief for United States as Amicus Curiae
4–5; Brief for Muscogee (Creek) Nation as Amicus Curiae 1–2; ante, at
903–904, 914–915.

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945
Roberts, C. J., dissenting
would diminish the reservation,” even in the face of “statu-
tory
language that would otherwise suggest reservation
boundaries remained unchanged.” Ibid.
Third, to a “lesser extent,” we examine “events that oc-
curred after the passage of [an] Act to decipher Congress'
intentions.” Ibid. “Congress' own treatment of the af-
fected areas, particularly in the years immediately following
the opening, has some evidentiary value, as does the manner
in which the Bureau of Indian Affairs and local judicial au-
thorities dealt with [the areas].” Ibid. In addition, “we
have recognized that who actually moved onto opened reser-
vation lands is also relevant.” Ibid. “Where non-Indian
settlers fooded into the opened portion of a reservation and
the area has long since lost its Indian character, we have
acknowledged that de facto, if not de jure, diminishment may
have occurred.” Ibid. This “subsequent demographic his-
tory” provides an “additional clue as to what Congress ex-
pected would happen.” Id., at 471–472.
Fifteen years later, another unanimous Court described
the same methodology more pithily in South Dakota v. Yank-
ton Sioux Tribe, 522 U. S. 329 (1998). First, the Court reit-
erated that the “most probative evidence of diminishment
is, of course, the statutory language.” Id., at 344 (internal
quotation marks omitted). The Court continued that it
would also consider, second, “the historical context sur-
rounding the passage of the . . . Acts,” and third, “the subse-
quent treatment of the area in question and the pattern of
settlement there.” Ibid. (quoting Hagen, 510 U. S., at 411).
The Court today treats these precedents as aging relics in
need of “clarif[ication].” Ante, at 915. But these precedents
have been clear enough for some time. Just a few Terms
ago, the same inquiry was described as “well settled” by the
unanimous Court in Nebraska v. Parker, 577 U. S. 481, 487
(2016). First, the Court explained, “we start with the statu-
tory text.” Id., at 488. “Under our precedents,” the Court
continued, “we also `examine all the circumstances surround-
ing the opening of a reservation.' ” Ibid. (quoting Hagen,

946 M
cGIRT v. OKLAHOMA
Roberts, C. J., dissenting
510 U. S., at 412). Thus, second and third, we “look to any
unequivoca
l evidence of the contemporaneous and subse-
quent understanding of the status of the reservation by
members and nonmembers, as well as the United States and
the State.” 577 U. S., at 488 (internal quotation marks omit-
ted). These inquiries include, respectively, the “history sur-
rounding the passage of the [relevant] Act” as well as the
subsequent “demographic history” and “treatment” of the
lands at issue. Id., at 490, 492.
Today the Court does not even discuss the governing ap-
proach reiterated throughout these precedents. The Court
briefy recites the general rule that disestablishment re-
quires clear congressional “intent,” ante, at 904, but the
Court then declines to examine the categories of evidence
that our precedents demand we consider. Instead, the
Court argues at length that allotment alone is not enough
to disestablish a reservation. Ante, at 904–908. Then the
Court argues that the “many” “serious blows” dealt by Con-
gress to tribal governance, and the creation of the new State
of Oklahoma, are each insuffcient for disestablishment.
Ante, at 909–913. Then the Court emphasizes that “histori-
cal practices or current demographics” do not “by themselves”
“suffce” to disestablish a reservation. Ante, at 913–914.
This is a school of red herrings. No one here contends
that any individual congressional action or piece of evidence,
st andi ng a lone, disest abl ished the Creek reservati on.
Rather, Oklahoma contends that all of the relevant Acts of
Congress together, viewed in light of contemporaneous and
subsequent contextual evidence, demonstrate Congress's in-
tent to disestablish the reservation. “[O]ur traditional ap-
proach . . . requires us” to determine Congress's intent by
“examin[ing] all the circumstances surrounding the open-
ing of a reservation.” Hagen, 510 U. S., at 412 (emphasis
added). Yet the Court refuses to confront the cumulative
import of all of Congress's actions here.
The Court instead announces a new approach sharply re-
stricting consideration of contemporaneous and subsequent

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947
Roberts, C. J., dissenting
evidence of congressional intent. The Court states that
such
“extratextual sources” may be considered in “only” one
narrow circumstance: to help “ `clear up' ” ambiguity in a par-
ticular “statutory term or phrase.” Ante, at 914, 916 (quot-
ing Milner v. Department of Navy, 562 U. S. 562, 574 (2011),
and citing New Prime Inc. v. Oliveira, 586 U. S. 105, 113
(2019)).
But, if that is the right approach, what have we been doing
all these years? Every single one of our disestablishment
cases has considered extratextual sources, and in doing so,
none has required the identifcation of ambiguity in a particu-
lar term. That is because, while it is well established that
Congress's “intent” must be “clear,” ante, at 916 (quoting
Yankton Sioux Tribe, 522 U. S., at 343), in this area we have
expressly held that the appropriate inquiry does not focus on
the statutory text alone.
Today the Court suggests that only the text can satisfy
the longstanding requirement that Congress “explicitly indi-
cate[ ]” its intent. Ante, at 916 (quoting Solem, 465 U. S., at
470). The Court reiterates that a reservation persists unless
Congress “said otherwise,” ante, at 898; if Congress wishes to
disestablish a reservation, “it must say so,” with the right
“language.” Ante, at 904, 914; see ante, at 937 (same). Our
precedents disagree. They explain that disestablishment
can occur “[e]ven in the absence of a clear expression of con-
gressional purpose in the text of [the] Act.” Yankton Sioux
Tribe, 522 U. S., at 351. The “notion” that “express lan-
guage in an Act is the only method by which congressional
action may result in disestablishment” is “quite inconsistent”
with our precedents. Rosebud Sioux Tribe v. Kneip, 430
U. S. 584, 586, 588, n. 4 (1977); see Solem, 465 U. S., at 471
(intent may be discerned from a “widely held, contemporane-
ous understanding,” “notwithstanding the presence of statu-
tory language that would otherwise suggest reservation
boundaries remained unchanged”); see also DeCoteau v. Dis-
trict County Court for Tenth Judicial Dist., 420 U. S. 425,
444 (1975); Mattz v. Arnett, 412 U. S. 481, 505 (1973).

948 M
cGIRT v. OKLAHOMA
Roberts, C. J., dissenting
These are not “stitche[d] together quotes” but rather plain
lang
uage refecting a consistent theme running through our
precedents. Ante, at 916, n. 9. They make clear that the
Court errs in focusing on whether “a statute” alone “re-
quired” disestablishment, ante, at 916; under these prece-
dents, we cannot determine what Congress “required” with-
out frst considering evidence in addition to the relevant
statutes. Oddly, the Court claims these precedents actually
support its new approach because they “emphasize that `[t]he
focus of our inquiry is congressional intent.' ” Ante, at 916–
917, n. 9 (quoting Rosebud Sioux Tribe, 430 U. S., at 588, n. 4,
and citing Yankton Sioux Tribe, 522 U. S., at 343). But in
this context that intent is determined by examining a broad
array of evidence—“all the circumstances.” Parker, 577
U. S., at 488 (quoting Hagen, 510 U. S., at 412). Unless the
Court is prepared to overrule these precedents, it should fol-
low them.
The Court appears skeptical of these precedents, but does
not address the compelling reasons they give for considering
extratextual evidence. At the turn of the century, the possi-
bility that a reservation might persist in the absence of
“tribal ownership” of the underlying lands was “unfamiliar,”
and the prevailing “assumption” was that “Indian reserva-
tions were a thing of the past.” Solem, 465 U. S., at 468.
Congress believed “to a man” that “within a short time” the
“Indian tribes would enter traditional American society and
the reservation system would cease to exist.” Ibid. As a
result, Congress—while intending disestablishment—did not
always “detail” precise changes to reservation boundaries.
Ibid. Recognizing this distinctive backdrop, our precedents
determine Congress's intent by considering a broader va-
riety of evidence than we might for more run-of-the-mill
questions of statutory interpretation. See id., at 468–469;
Parker, 577 U. S., at 488; Yankton Sioux Tribe, 522 U. S., at
343. See also Cohen § 2.02(1), at 113 (“The theory and prac-

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949
Roberts, C. J., dissenting
tice of interpretation in federal Indian law differs from that
of
other felds of law.”).
The Court next claims that Parker “clarif[ied]” that evi-
dence of the subsequent treatment of the disputed land
by government offcials “ `has limited interpretive value.' ”
Ante, at 915 (quoting Parker, 577 U. S., at 493). But Parker
held that the subsequent evidence in that case “ha[d] `limited
interpretive value,' ” as in the case that Parker relied on.
Id., at 493 (quoting Yankton Sioux Tribe, 522 U. S., at 355).
The adequacy of evidence in a particular case says nothing
about whether our precedents require us to consider such
evidence in others.
3
The Court fnally resorts to torching strawmen. No one
relying on our precedents contends that “practical advan-
tages” require “ignoring the written law.” Ante, at 923.
No one claims a State has “authority to reduce federal reser-
vations.” Ante, at 903. No one says the role of courts is to
“sav[e] the political branches” from “embarrassment.” Ibid.
No one argues that courts can “adjust[ ]” reservation bor-
ders. Ibid. Such notions have nothing to do with our prec-
edents. What our precedents do provide is the settled ap-
proach for determining whether Congress disestablished a
3
The Court rejects this reading of Parker based on a quotation that
ends with what sounds like a general principle that “[e]vidence of the
subsequent treatment of the disputed land by Government offcials like-
wise has `limited interpretive value.' ” Ante, at 915, n. 8 (quoting Parker,
577 U. S., at 493). But that sentence was actually the topic sentence of
a new paragraph that addressed the particular evidence of subsequent
treatment of the particular land by the particular government offcials in
that case. Id., at 493. It is clear that Parker merely concluded that the
evidence cited by the parties provided a “mixed record of subsequent
treatment” that did not move the needle either way. Ibid. (internal quo-
tation marks omitted). Parker did not silently overturn our precedents
requiring us to consider—and accord “weight” to—subsequent evidence
that plainly favors, or undermines, disestablishment. Rosebud Sioux
Tribe v. Kneip, 430 U. S. 584, 604 (1977); see supra, at 943–946.

950 M
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Roberts, C. J., dissenting
reservation, and the Court starkly departs from that ap-
proach
here.
III
Applied properly, our precedents demonstrate that Con-
gress disestablished any reservation possessed by the Creek
Nation through a relentless series of statutes leading up to
Oklahoma statehood.
A
The statutory texts are the “most probative evidence” of
congressional intent. Parker, 577 U. S., at 488 (quoting
Hagen, 510 U. S., at 411). The Court appropriately exam-
ines the Original Creek Agreement of 1901 and a subsequent
statute for language of disestablishment, such as “cession,”
“abolish[ing]” the reservation, “restor[ing]” land to the “pub-
lic domain,” or an “unconditional commitment” to “compen-
sate” the Tribe. Ante, at 904–908 (internal quotation marks
omitted). But that is only the beginning of the analysis;
there is no “magic words” requirement for disestablishment,
and each individual statute may not be considered in isola-
tion. See supra, at 947–948; Hagen, 510 U. S., at 411, 415–
416 (when two statutes “buil[d]” on one another in this area,
“[both] statutes—as well as those that came in between—
must therefore be read together”); see also Rosebud Sioux
Tribe, 430 U. S., at 592 (recognizing that a statute “cannot,
and should not, be read as if it were the frst time Congress
had addressed itself to” disestablishment when prior stat-
utes also indicate congressional intent). In this area, “we
are not free to say to Congress: `We see what you are driving
at, but you have not said it, and therefore we shall go on as
before.' ” Id., at 597 (quoting Johnson v. United States, 163
F. 30, 32 (CA1 1908) (Holmes, J.)). Rather, we recognize that
the language Congress uses to accomplish its objective is
adapted to the circumstances it confronts.
For example, “cession” is generally what a tribe does when
it conveys land to a fellow sovereign, such as the United
States or another tribe. See Mitchel v. United States, 9 Pet.
711, 734 (1835); e. g., 1856 Treaty, Art. I, 11 Stat. 699. But

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here, given that Congress sought direct allotment to tribe
members
in order to enable private ownership by both Indi-
ans and the 300,000 settlers in the territory, it would have
made little sense to “cede” the lands to the United States or
“restore” the lands to the “public domain,” as Congress did
on other occasions. So too with a “commitment” to “com-
pensate” the Tribe. Rather than buying land from the
Creek, Congress provided for allotment to tribe members
who could then “sell their land to Indians and non-Indians
alike.” Ante, at 905–906; see Hagen, 510 U. S., at 412 (a
“defnite payment” is not required for disestablishment).
That other allotment statutes have contained various “hall-
marks” of disestablishment tells us little about Congress's
intent here. Contra, ante, at 908, and n. 5. “[W]e have
never required any particular form of words” to disestablish
a reservation. Hagen, 510 U. S., at 411. There are good rea-
sons the statutes here do not include the language the Court
looks for, and those reasons have nothing to do with a failure
to disestablish the reservation. Respect for Congress's
work requires us to look at what it actually did, not search
in vain for what it might have done or did on other occasions.
What Congress actually did here was enact a series of
statutes beginning in 1890 and culminating with Oklahoma
statehood that (1) established a uniform legal system for In-
dians and non-Indians alike; (2) dismantled the Creek gov-
ernment; (3) extinguished the Creek Nation's title to the
lands at issue; and (4) incorporated the Creek members into
a new political community—the State of Oklahoma. These
statutes evince Congress's intent to terminate the reserva-
tion and create a new State in its place.
First, Congress supplanted the Creek legal system with a
legal code and court system that applied equally to Indians
and non-Indians. In 1890, Congress subjected the Indian
Territory to specifed federal criminal laws. Act of May 2,
1890, § 31, 26 Stat. 96. For offenses not covered by federal
law, Congress did what it often did when establishing a new
territorial government. It provided that the criminal laws

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from a neighboring State, here Arkansas, would apply. § 33,
i
d., at 96–97. Seven years later, Congress provided that the
laws of the United States and Arkansas “shall apply to all
persons” in Indian Territory, “irrespective of race.” Act of
June 7, 1897 (1897 Act), 30 Stat. 83 (emphasis added). In
the same Act, Congress conferred on the U. S. Courts for
the Indian Territory “exclusive jurisdiction” over “all civil
causes in law and equity” and “all criminal causes” for the
punishment of offenses committed by “any person” in the
Indian Territory. Ibid.
The following year, the 1898 Curtis Act “abolished” all
tribal courts, prohibited all offcers of such courts from exer-
cising “any authority” to perform “any act” previously au-
thorized by “any law,” and transferred “all civil and criminal
causes then pending ” to the U. S. Courts for the Indian Ter-
ritory. Act of June 27, 1898 (Curtis Act), § 28, id., at 504–
505. In the same Act, Congress completed the shift to a
uniform legal order by banning the enforcement of tribal law
in the newly exclusive jurisdiction of the U. S. Courts. See
§ 26, id., at 504 (“[T]he laws of the various tribes or nations
of Indians shall not be enforced at law or in equity by the
courts of the United States in the Indian Territory.”). Con-
gress reiterated yet again in 1904 that Arkansas law “contin-
ued” to “embrace all persons and estates” in the territory—
“whether Indian, freedmen, or otherwise.” Act of Apr. 28,
1904, ch. 1824, § 2, 33 Stat. 573 (emphasis added). In this
way, Congress replaced tribal law with local law in matters
at the core of tribal governance, such as inheritance and mar-
ital disputes. See, e. g., George v. Robb, 4 Ind. T. 61, 64 S. W.
615, 615–616 (1901); Colbert v. Fulton, 74 Okla. 293, 157
P. 1151, 1152 (1916).
In addition, the Curtis Act established municipalities to
govern both Indians and non-Indians. It authorized “any
city or town” with at least 200 residents to incorporate.
§ 14, 30 Stat. 499. The Act gave incorporated towns “all the
powers” and “all the rights” of municipalities under Arkan-

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sas law. Ibid. “All male inhabitants,” including Indians,
were
deemed qualifed to vote in town elections. Ibid.
And “all inhabitants”—“without regard to race”—were made
subject to “all” town laws and were declared to possess
“equ al rights, privileges, and protecti on. ” Id., at 499–
500 (emphasis added). These changes reorganized the ap-
proximately 150 towns in the territory—including Tulsa,
Muskogee, and 23 others within the Creek Nation's former
territory—that were home to tens of thousands of people and
nearly one third of the territory's population at the time,
laying the foundation for the state governance that was to
come. See H. R. Doc. No. 5, 57th Cong., 2d Sess., pt. 2,
pp. 299–300, Table 1 (1903); Depts. of Commerce and Labor,
Bureau of Census, Population of Oklahoma and Indian Terri-
tory 1907, pp. 8, 30–33.
Second, Congress systematically dismantled the govern-
mental authority of the Creek Nation, targeting all three
branches. As noted, Congress dissolved the Tribe's judi-
cial system. Congress also specifed in the Original Creek
Agreement that the Creek government would “not continue”
past March 1906, essentially preserving it only as long as
Congress thought necessary for the Tribe to wind up its af-
fairs. § 46, 31 Stat. 872. In the meantime, Congress radi-
cally curtailed tribal legislative authority, providing that no
statute passed by the council of the Creek Nation affecting
the Nation's lands, money, or property would be valid unless
approved by the President of the United States. § 42, id.,
at 872. When 1906 came around, the Five Tribes Act pro-
vided for the “fnal disposition of the affairs of the Five Civi-
lized Tribes.” Act of Apr. 26, 1906, ch. 1876, 34 Stat. 137.
Along with “abolish[ing]” all tribal taxes, the Act directed
the Secretary of the Interior to assume control over the col-
lection of the Nation's remaining revenues and to distribute
them among tribe members on a per capita basis. §§ 11, 17,
id., at 141, 143–144. Thus, by the time Oklahoma became
the 46th State in 1907, there was little left of the Creek Na-

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tion's authority: No tribal courts. No tribal law. No tribal
fsc.
And any lingering authority was further reduced in
1908, when Congress amended the Five Tribes Act to require
tribal offcers and members to surrender all remaining tribal
property, money, and records. Act of May 27, 1908, § 13, 35
Stat. 316.
The Court stresses that the Five Tribes Act separately
stated that the Creek government was “continued” in “full
force and effect for all purposes authorized by law.” Ante,
at 910 (quoting § 28, 34 Stat. 148). By that point, however,
such “authorized” purposes were nearly nonexistent, and the
Act's statement is readily explained by the need to maintain
a tribal body to wrap up the distribution of Creek lands.
Indeed, the Court does not cite any examples of the Creek
Nation exercising signifcant government authority in the
wake of the statutes discussed above. Instead, the Court
alludes to subsequent changes in the 1920s to the general
“federal outlook toward Native Americans,” and it observes
that in the 1930s Congress authorized the Creek Nation to
reconstitute its tribal courts and adopt a constitution and
bylaws. Ante, at 911. That, however, simply highlights
the drastic extent to which Congress erased the Nation's au-
thority at the turn of the century.
Third, Congress destroyed the foundation of sovereignty
by stripping the Creek Nation of its territory. The commu-
nal title held by the Creek Nation, which “did not recognize
private property in land,” “presented a serious obstacle to
the creation of [a] State.” Choate v. Trapp, 224 U. S. 665,
667 (1912). Well aware of this impediment, Congress estab-
lished the Dawes Commission and directed it to negotiate
with the Five Tribes for “the extinguishment of the national
or tribal title to any lands” within the Indian Territory. Act
of Mar. 3, 1893, § 16, 27 Stat. 645. That extinguishment
could be accomplished through “cession” of the tribal lands
to the United States, “allotment” of the lands among the In-
dians, or any other agreed upon method. Ibid. The Com-

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mission initially sought cession, but ultimately sought to ex-
ti
nguish the title through allotment. See ante, at 905.
In the Original Creek Agreement of 1901, Congress did
just that. The agreement provided that “[a]ll lands belong-
ing to the Creek tribe,” except town sites and lands reserved
for schools and public buildings, “shall be allotted among the
citizens of the tribe.” §§ 2, 3, 31 Stat. 862 (emphasis added).
Town sites, rather than being allotted, were made available
for purchase by the non-Indians residing there. §§ 11–16,
id., at 866–867. Unclaimed lots were to be sold at public
auction, with the proceeds divvied up among the Creeks.
§§ 11, 14, id., at 866. The agreement required that the deeds
for the allotments and town site purchases convey “all right,
title, and interest of the Creek Nation and of all other
[Creek] citizens,” and that the deeds be executed by the
leader of the Creek Nation (the “principal chief ”). § 23, id.,
at 867–868. The conveyances were then approved by the
Secretary of the Interior, who in turn “relinquish[ed] to the
grantee . . . all the right, title, and interest of the United
States” in the land. Id., at 868. In this way, Congress pro-
vided for the complete termination of the Creek Nation's in-
terest in the lands, as well as the interests of individual
Creek members apart from their personal allotments. In-
deed, the language Congress used in the Original Creek
Agreement resembles what the Court regards as model dis-
establishment language. See ante, at 904, 906 (looking for
language evincing “the present and total surrender of all
tribal interests in the affected lands” (internal quotation
marks omitted)). And, making even more clear its intent to
place Indian-held land under the same laws as all other prop-
erty, Congress subsequently eliminated restrictions on the
alienation of allotments, freeing tribe members “to sell their
land to Indians and non-Indians alike.” Ante, at 905–906.
In addition, while the Original Creek Agreement did not
allot lands reserved for schools and tribal buildings, the
Creek Nation's interest in those lands was subsequently ter-

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minated by the Five Tribes Act. That Act directed the Sec-
ret
ary of the Interior to take possession of—and sell off—
“all” tribal buildings and underlying lands, whether used for
“governmental” or “other tribal purposes.” § 15, 34 Stat.
143. The Secretary was also ordered to assume control of
all tribal schools and the underlying property until the fed-
eral or state governments established a public school system.
See § 10, id., at 140–141.
These statutes evince a clear intent to leave the Creek
Nation with no communally held land and no meaningful
governing authority to exercise over the newly distributed
parcels. Contrary to the Court's portrayal, this is not a sce-
nario in which Congress allowed a tribe to “continue to exer-
cise governmental functions over land” that it “no longer
own[ed] communally.” Ante, at 907. From top to bottom,
these statutes, which divested the Tribes and the United
States of their interests while displacing tribal governance,
“strongly suggest[ ] that Congress meant to divest” the lands
of reservation status. Solem, 465 U. S., at 470.
Finally, having stripped the Creek Nation of its laws, its
powers of self-governance, and its land, Congress incorpo-
rated the Nation's members into a new political community.
Congress made “every Indian” in the Oklahoma Territory a
citizen of the United States in 1901—decades before confer-
ring citizenship on all native born Indians elsewhere in the
country. Act of Mar. 3, 1901, ch. 868, 31 Stat. 1447. In the
Oklahoma Enabling Act of 1906—the gateway to statehood—
Congress confrmed that members of the Five Tribes would
participate in equal measure alongside non-Indians in the
choice regarding statehood. The Act gave Indians the right
to vote on delegates to a constitutional convention and ulti-
mately on the state constitution that the delegates proposed.
§§ 2, 4, 34 Stat. 268, 271. Fifteen members of the Five
Tribes were elected as convention delegates, many of them
served on signifcant committees, and a member of the
Chickasaw Nation even served as president of the conven-

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957
Roberts, C. J., dissenting
tion. See Brief for Seventeen Oklahoma District Attorneys
et
al. as Amici Curiae 9–13.
The Enabling Act also ensured that Indians and non-
Indians would be subject to uniform laws and courts. It re-
placed Arkansas law, which had applied to all persons “irre-
spective of race,” 1897 Act, 30 Stat. 83, with the laws of the
adjacent Oklahoma Territory until the new state legislature
provided otherwise. Enabling Act §§ 2, 13, 21, 34 Stat. 268–
269, 275, 277–278; see Jefferson v. Fink, 247 U. S. 288, 294
(1918). All of the pending cases in the territorial courts
arising under federal law were transferred to the newly cre-
ated U. S. District Courts of Oklahoma. See § 16, 34 Stat.
276. Pending cases not involving federal law, including
those that involved Indians on Indian land and had arisen
under Arkansas law, were transferred to the new Oklahoma
state courts. §§ 16, 17, 20, id., at 276–277. To dispel any
potential confusion about the distribution of criminal cases,
Congress amended the Enabling Act the following year, clar-
ifying that all cases for crimes that would have fallen under
federal jurisdiction had they been committed in a State
would be transferred to the U. S. District Courts. Act of
Mar. 4, 1907, § 1, id., at 1286–1287. All other pending crimi-
nal cases would be “prosecuted to a fnal determination in
the State courts of Oklahoma.” § 3, id., at 1287. As for
civil cases, the new state courts were immediately empow-
ered to resolve even disputes that previously lay at the core
of tribal self-governance. E. g., Palmer v. Cully, 52 Okla.
454, 463–469, 153 P. 154, 157–158 (1915) (per curiam) (mari-
tal dispute).
4
4
The Court, citing United States v. Sandoval, 231 U. S. 28, 47–48 (1913),
argues that including a tribe within a new State is not necessarily incom-
patible with the continuing existence of a reservation. Ante, at 911–912,
n. 6. But the tribe in Sandoval, the Pueblo Indians of New Mexico, re-
tained a rare communal title to their lands—which Congress explicitly
extinguished here. 231 U. S., at 47. More fundamentally, the Court's ar-
gument suffers from the same faw that runs through its entire approach,

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In sum, in statute after statute, Congress made abun-
dantly
clear its intent to disestablish the Creek territory.
The Court, for purposes of the disestablishment question be-
fore us, defnes the Creek territory as “lands that would lie
outside both the legal jurisdiction and geographic boundaries
of any State” and on which a tribe was “assured a right to
self-government.” Ante, at 902. That territory was elimi-
nated. By establishing uniform laws for Indians and non-
Indians alike in the new State of Oklahoma, Congress
brought Creek members and the land on which they resided
under state jurisdiction. By stripping the Creek Nation of
its courts, lawmaking authority, and taxing power, Congress
dismantled the tribal government. By extinguishing the
Nation's title, Congress erased the geographic boundaries
that once defned Creek territory. And, by conferring citi-
zenship on tribe members and giving them a vote in the for-
mation of the State, Congress incorporated them into a new
political community. “Under any defnition,” that was dises-
tablishment. Ibid.
In the face of all this, the Court claims that recognizing
Congress's intent would permit disestablishment in the ab-
sence of “a statute requir[ing] that result.” Ante, at 916.
Hardly. The numerous statutes discussed above demon-
strate Congress's plain intent to terminate the reservation.
The Court resists the cumulative force of these statutes by
attacking each in isolation, frst asking whether allotment
alone disestablished the reservation, then whether restrict-
ing tribal governance was suffcient, and so on. But the
Court does not consider the full picture of what Congress
accomplished. Far from justifying its blinkered approach,
the Court repeatedly tells the reader to wait until the “next
section” of the opinion—where the Court will again nitpick
discrete aspects of Congress's disestablishment effort while
which maintains that each of Congress's actions alone would not be enough
for disestablishment but never confronts the import of all of them.

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ignoring the full picture our precedents require us to honor.
An
te, at 908–909, n. 5, 913, n. 7; see supra, at 948, 950.
The Court also hypothesizes that Congress may have
taken signifcant steps toward disestablishment but ulti-
mately could not “complete[ ]” it; perhaps Congress just
couldn't “muster the will” to fnish the job. Ante, at 904,
911. The Court suggests that Congress sought to “tiptoe to
the edge of disestablishment,” fearing the “embarrassment
of disestablishing a reservation” but hoping that judges
would “deliver the fnal push.” Ante, at 903. This is fan-
tasy. The congressional Acts detailed above do not evince
any unease about extinguishing the Creek domain, or any
shortage of “will.” Quite the opposite. Through an open
and concerted effort, Congress did what it set out to do:
transform a reservation into a State. “Mustering the broad
social consensus required to pass new legislation is a deliber-
ately hard business,” as the Court reminds us. Ibid. Con-
gress did that hard work here, enacting not one but a steady
progression of major statutes. The Court today does not
give effect to the cumulative signifcance of Congress's ac-
tions, because Congress did not use explicit words of the sort
the Court insists upon. But Congress had no reason to sup-
pose that such words would be required of it, and this Court
has held that they were not. See Hagen, 510 U. S., at 411–
412; Yankton Sioux Tribe, 522 U. S., at 351; Solem, 465 U. S.,
at 471.
B
Under our precedents, we next consider the contempora-
neous understanding of the statutes enacted by Congress
and the subsequent treatment of the lands at issue. The
Court, however, declines to consider such evidence because,
in the Court's view, the statutes clearly do not disestablish
any reservation, and there is no “ambiguity” to “clear up.”
Ante, at 916 (internal quotation marks omitted). That is not
the approach demanded by our precedent, supra, at 946–950,
and, in any event, the Court's argument fails on its own

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terms here. I fnd it hard to see how anyone can come away
from
the statutory texts detailed above with certainty that
Congress had no intent to disestablish the territorial reser-
vation. At the very least, the statutes leave some ambigu-
ity, and thus “extratextual sources” ought to be consulted.
Ante, at 916.
Turning to such sources, our precedents direct us to “ex-
amine all the circumstances” surrounding Congress's actions.
Parker, 577 U. S., at 488 (quoting Hagen, 510 U. S., at 412).
This includes evidence of the “contemporaneous understand-
ing ” of the status of the reservation and the “history sur-
rounding the passage” of the relevant Acts. Parker, 577
U. S., at 490 (internal quotation marks omitted); see Yankton
Sioux Tribe, 522 U. S., at 351–354; Solem, 465 U. S., at 471.
The available evidence overwhelmingly confrms that Con-
gress eliminated any Creek reservation. That was the pur-
pose identifed by Congress, the Dawes Commission, and the
Creek Nation itself. And that was the understanding dem-
onstrated by the actions of Oklahoma, the United States, and
the Creek.
According to reports published by Congress leading up to
Oklahoma statehood, the Five Tribes had failed to hold the
lands for the equal beneft of all Indians, and the tribal gov-
ernments were ill equipped to handle the largescale settle-
ment of non-Indians in the territories. See supra, at 941–
942; Woodward, 238 U. S., at 296–297. The Senate Select
Committee on the Five Tribes explained that it was “impera-
tive[ ]” to “establish a government over [non-Indians] and In-
dians” in the territory “in accordance with the principles of
our constitution and laws.” S. Rep. No. 377, at 12–13. On
the eve of the Original Creek Agreement, the House Com-
mittee on Indian Affairs emphasized that “[t]he independent
self-government of the Five Tribes ha[d] practically ceased,”
“[t]he policy of the Government to abolish classes in Indian
Territory and make a homogeneous population [wa]s being
rapidly carried out,” and all Indians “should at once be

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Roberts, C. J., dissenting
put upon a level and equal footing with the great population
w
ith whom they [were] intermingled.” H. R. Rep. No. 1188,
56th Cong., 1st Sess., 1 (1900).
The Dawes Commission understood Congress's intent in
the same way. The Commission explained that the “object
of Congress from the beginning has been the dissolution of
the tribal governments, the extinguishment of the communal
or tribal title to the land, the vesting of possession and title
in severalty among the citizens of the tribes, and the assimi-
lation of the peoples and institutions of this Territory to our
prevailing American standard.” H. R. Doc. No. 5, 58th
Cong., 2d Sess., pt. 2, p. 5 (1903). Accordingly, the Commis-
sion's aim—“in all [its] endeavors”—was a “uniformity of
political institutions to lay the foundation for an ultimate
common government.” H. R. Doc. No. 5, 56th Cong., 2d
Sess., 163 (1900).
The Creek shared the same understanding. In 1893, the
year Congress formed the Dawes Commission, the Creek
delegation to Washington recognized that Congress's “unwa-
vering aim” was to “ `wipe out the line of political distinction
between an Indian citizen and other citizens of the Repub-
lic' ” so that the Tribe could be “ `absorbed and become a part
of the United States.' ” P. Porter & A. McKellop, Printed
Statement of Creek Delegates, reprinted in Creek Delega-
tion Documents 8–9 (Feb. 9, 1893) (quoting Senate Commit-
tee Report); see also S. Doc. No. 111, 54th Cong., 2d Sess., 5,
8 (1897) (resolution of the Creek Nation “recogniz[ing]” that
Congress proposed to “disintegrat[e] the land of our people”
and “transform[ ]” “our domestic dependent states” “into a
State of the Union”).
Particularly probative is the understanding of Pleasant
Porter, the principal Chief of the Creek Nation. He de-
scribed Congress's decisions to the Creek people and legisla-
ture in messages published in territorial newspapers during
the run-up to statehood. Following the extinguishment of
the Nation's title, dissolution of tribal courts, and curtail-

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ment of lawmaking authority, he told his people that “[i]t
wou
ld be diffcult, if not impossible to successfully operate
the Creek government now.” App. to Brief for Respondent
8a (Message to Creek National Council (May 7, 1901), re-
printed in The Indian Journal (May 10, 1901)). The “rem-
nant of a government” had been reduced to a land offce for
fnalizing the distribution of allotments and would be “main-
tained only until” the Tribe's “landed and other interests . . .
have been settled.” App. to Brief for Respondent 8a. He
reiterated this understanding following the Five Tribes Act
of 1906, which stated that the tribal government would “con-
tinue[ ] in full force and effect for all purposes authorized by
law.” § 28, 34 Stat. 148. While the Court believes that
meant Congress decided against disestablishing the reserva-
tion, see ante, at 910, Chief Porter saw things differently.
From his vantage point as the contemporaneous leader of the
government at issue, Congress had temporarily continued
the tribal government but left it with only “limited and cir-
cumscribed” authority: The council could “pass[ ] resolutions
respecting our wishes” regarding the property “now in the
process of distribution,” but the council no longer had any
authority to “mak[e] laws for our government.” App. to
Brief for Respondent 14a (Message to Creek National Coun-
cil (Oct. 18, 1906), reprinted in The New State Tribune (Oct.
18, 1906)). Apart from distributing the Nation's property,
Chief Porter maintained that “all powers over the governing
even of our landed property will cease” once the new state
government was established. App. to Brief for Respondent
15a; see also S. Rep. No. 5013, 59th Cong., 2d Sess., pt. 1,
p. 885 (1907) (Choctaw governor mourning that his “only”
remaining authority was “to sign deeds”).
The Creek remained of that view after Oklahoma was off-
cially made a State through the Enabling Act. At that
point, the new principal Chief confrmed that it was “utterly
impossible” to resume “our old tribal government.” App. to
Brief for Respondent 16a–17a (Address by Moty Tiger to

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Roberts, C. J., dissenting
Creek National Council (Oct. 8, 1908), reprinted in The In-
dian
Journal (Oct. 9, 1908)). And any “appeal to the govern-
ment at Washington to alter its purpose to wipe out all tribal
government among the fve civilized tribes” would “be to no
purpose.” App. to Brief for Respondent 16a. “[C]ontribu-
tions” for such efforts would be “just that much money
thrown away,” and “all attorneys at Washington or else-
where who encourage and receive any part of such contribu-
tions do it knowing that they can give no return or service
for same and that they take such money fraudulently and
dishonestly.” Id., at 17a.
5
In addition to their words, the contemporaneous actions of
Oklahoma, the Creek, and the United States in criminal mat-
ters confrm their shared understanding that Congress did
not intend a reservation to persist. Had the land been a
reservation, the federal government—not the new State—
would have had jurisdiction over serious crimes committed
by Indians under the Major Crimes Act of 1885. See § 9, 23
Stat. 385. Yet, at statehood, Oklahoma immediately began
prosecuting serious crimes committed by Indians in the new
state courts, and the federal government immediately ceased
prosecuting such crimes in federal court. At argument,
McGirt's counsel acknowledged that he could not cite a single
example of federal prosecutions for such crimes. Tr. of Oral
Arg. 17–18. Rather, the record demonstrates that case after
case was transferred to state court or fled there outright
by Oklahoma after 1907—without objection by anyone. See,
5
The Court discounts the views of the principal chiefs as mere predic-
tions about what Congress “would” do, ante, at 920, but the Court ignores
statements made after statehood, describing what Congress did do. The
Court also asserts that the chiefs' views cannot serve as “evidence” of the
“meaning ” of laws enacted by Congress. Ante, at 921, n. 12. That is
inconsistent with our precedent, which specifcally instructs us to deter-
mine Congress's intent by considering the “understanding of the status of
the reservation by members” of the affected tribe. Parker, 577 U. S., at
488. The contemporaneous understanding of the leaders of the tribe is
highly probative.

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Roberts, C. J., dissenting
e. g., Bigfeather v. State, 7 Okla. Crim. 364, 123 P. 1026 (1912)
(
manslaughter); Rollen v. State, 7 Okla. Crim. 673, 125
P. 1087 (1912) (assault with intent to kill); Jones v. State, 3
Okla. Crim. 593, 107 P. 738 (1910) (murder); see also Brief for
Petitioner in Sharp v. Murphy, O. T. 2018, No. 17–1107, pp.
40–41 (collecting more cases). These prosecutions were law-
ful, the Oklahoma Supreme Court recognized at the time,
because Congress had not intended to “except out of [Okla-
homa] an Indian reservation” upon its admission as a State.
Higgins v. Brown, 20 Okla. 355, 425, 94 P. 703, 730 (1908).
Instead of explaining how everyone at the time somehow
missed that a reservation still existed, the Court resorts to
misdirection. It observes that Oklahoma state courts have
held that they erroneously entertained prosecutions for
crimes committed by Indians on the small number of remain-
ing restricted allotments and tribal trust lands from the
1930s until 1989. But this Court has not addressed that
issue, and regardless, it would not tell us whether the State
properly prosecuted major crimes committed by Indians on
the lands at issue here—the unrestricted fee lands that make
up more than 95% of the Creek Nation's former territory.
Perhaps most telling is that the State's jurisdiction over
crimes on Indian allotments was hotly contested from an
early date, whereas nobody raised objections based on a sur-
viving reservation. See, e. g., Ex parte Nowabbi, 60 Okla.
Crim. 111, 61 P. 2d 1139 (1936), overruled by State v. Klindt,
782 P. 2d 401, 404 (Okla. Crim. App. 1989); see also ante, at
917 (“no court” suggested the “possibility” that “the Creek
lands really were part of a reservation” until 2017).
6
6
The Court claims that the Oklahoma courts' reasons for treating re-
stricted allotments as Indian country must apply with “equal force” to the
unrestricted fee lands at issue here, but the Court ultimately admits the
two types of land are “legally distinct.” Ante, at 919, n. 10. And any
misstep with regard to the small number of restricted allotments hardly
means the Oklahoma courts made the far more extraordinary mistake of
failing to notice that the Five Tribes' reservations—encompassing 19 mil-
lion acres—continued to exist.

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965
Roberts, C. J., dissenting
Lacking any other arguments, the Court suspects uniform
lawlessness:
The State must have “overstepped its author-
ity” in prosecuting thousands of cases for over a century.
Ante, at 919. Perhaps, the Court suggests, the State lacked
“good faith.” Ibid. In the Court's telling, the federal gov-
ernment acquiesced in this extraordinary alleged power
grab, abdicating its responsibilities over the purported reser-
vation. And, all the while, the state and federal courts
turned a blind eye.
But we normally presume that government offcials exer-
cise their duties in accordance with the law. Certainly the
presumption may be strained from time to time in this area,
but not so much as to justify the Court's speculations, which
posit that government offcials at every level either conspired
to violate the law or uniformly misunderstood the fundamen-
tal structure of their society and government. Whatever
the imperfections of our forebears, neither option seems ten-
able. And it is downright inconceivable that this could occur
without prompting objections—from anyone, including from
the Five Tribes themselves. Indians frequently asserted
their rights during this period. The cases above, for exam-
ple, involve criminal appeals brought by Indians, and Indians
raised numerous objections to land graft in the former Terri-
tory. See Brief for Historians et al. as Amici Curiae 28–31.
Yet, according to the extensive record compiled over several
years for this case and a similar case, Sharp v. Murphy, 591
U. S. 977 (2020) (per curiam), Indians and their counsel did
not raise a single objection to state prosecutions on the the-
ory that the lands at issue were still a reservation. It
stretches the imagination to suggest they just missed it.
C
Finally, consider “the subsequent treatment of the area
in question and the pattern of settlement there.” Yankton
Sioux Tribe, 522 U. S., at 344. This evidence includes the
“subsequent understanding of the status of the reservation
by members and nonmembers as well as the United States

966 M
cGIRT v. OKLAHOMA
Roberts, C. J., dissenting
and the [relevant] State,” and the “subsequent demographic
h
istory” of the area. Parker, 577 U. S., at 488, 492; see
Solem, 465 U. S., at 471. Each of the indicia from our prece-
dents—subsequent treatment by Congress, the State's un-
questioned exercise of jurisdiction, and demographic evi-
dence—confrms that the Creek reservation did not survive
statehood.
First, “Congress' own treatment of the affected areas”
strongly supports disestablishment. Id., at 471. Af ter
statehood, Congress enacted several statutes progressively
eliminating restrictions on the alienation and taxation of
Creek allotments, and Congress subjected even restricted
lands to state jurisdiction. Since Congress had already de-
stroyed nearly all tribal authority, these statutes rendered
Creek parcels little different from other plots of land in the
State. See Act of May 27, 1908, 35 Stat. 312; Act of June 14,
1918, 40 Stat. 606; Act of Apr. 10, 1926, 44 Stat. 239. This
is not a scenario where Congress merely opened land for
“purchase . . . by non-Indians” while allowing the Tribe
to “continue to exercise governmental functions over [the]
land,” ante, at 907, and n. 3; rather, Congress eliminated both
restrictions on the lands here and the Creek Nation's author-
ity over them. Such developments would be surprising if
Congress intended for all of the former Indian Territory to
be reservation land insulated from state jurisdiction in sig-
nifcant ways. The simpler and more likely explanation is
that they refect Congress's understanding through the years
that “all Indian reservations as such have ceased to exist” in
Oklahoma, S. Rep. No. 1232, 74th Cong., 1st Sess., 6 (1935),
and that “Indian reservations [in the Indian Territory] were
destroyed” when “Oklahoma entered the union,” S. Rep.
No. 101–216, p. 47 (1989).
That understanding is now woven throughout the U. S.
Code, which applies numerous statutes to the land here
by extendi ng them to the “ fo r me r reservati on[s] ” “ i n

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967
Roberts, C. J., dissenting
Oklahoma”—underscoring that no reservation exists today.
25
U. S. C. § 2719(a)(2)(A)(i) (emphasis added) (Indian Gaming
Regulatory Act); see Brief for United States as Amicus Cu-
riae 23; 23 U. S. C. § 202(b)(1)(B)(v) (road grants; “former In-
dian reservations in the State of Oklahoma”); 25 U. S. C.
§ 1452(d) (Indian Financing Act; “former Indian reservations
in Oklahoma”); § 2020(d) (education grants; “former Indian
reservations in Oklahoma”); § 3103(12) (National Indian For-
est Resources Management Act; “former Indian reservations
in Oklahoma”); 29 U. S. C. § 741(d) (American Indian Voca-
tional Rehabilitation Services Act; “former Indian reserva-
tions in Oklahoma”); 33 U. S. C. § 1377(c)(3)(B) (waste treat-
ment grants; “former Indian reservations in Oklahoma”); 42
U. S. C. § 5318(n)(2) (urban development grants; “former In-
dian reservations in Oklahoma”).
7
Second, consider the State's “exercis[e] [of] unquestioned
jurisdiction over the disputed area since the passage of ” the
Enabling Act, which deserves “weight” as “an indication of
7
The Court suggests that these statutes only show that there are some
“former reservations” in Oklahoma, not that the Five Tribes' former do-
mains are necessarily among them. Ante, at 923, n. 14. History says
otherwise. For example, the Five Tribes actively lobbied for inclusion of
this language in the Indian Gaming Regulatory Act. See Hearing on S.
902 et al. before the Senate Select Committee on Indian Affairs, 99th
Cong., 2d Sess., 299–300 (1986). They observed that the term “reserva-
tion,” as originally defned, did not pertain to the “eastern Oklahoma
tribes, including the Five Civilized Tribes.” Ibid. (statement of Charles
Blackwell, representative of the Chickasaw Nation of Oklahoma). Ac-
cordingly, they “recommend[ed] inclu[ding] . . . the wording `or in the case
of Oklahoma tribes, their former jurisdictional and/or reservation bound-
aries in Oklahoma.' ” Id., at 300 (emphasis added). The National Indian
Gaming Association, which proposed the language on which the fnal act
was ultimately modeled, made the same point, observing that in Oklahoma
“reservation boundaries have been extinguished for most purposes” so the
statute should refer to “former reservation[s] in Oklahoma.” Id., at 312
(Memorandum from the National Indian Gaming Assn. to the Senate Se-
lect Committee on Indian Affairs (June 17, 1986)).

968 M
cGIRT v. OKLAHOMA
Roberts, C. J., dissenting
the intended purpose of the Act.” Rosebud Sioux Tribe, 430
U
. S., at 599, n. 20, 604. As discussed above, for 113 years,
Oklahoma has asserted jurisdiction over the former Indian
Territory on the understanding that it is not a reservation,
without any objection by the Five Tribes until recently (or
by McGirt for the frst 20 years after his convictions). See
Brief for Respondent 4, 40. The same goes for major cities
in Oklahoma. Tulsa, for example, has exercised jurisdiction
over both Indians and non-Indians for more than a century
on the understanding that it is not a reservation. See Brief
for City of Tulsa as Amicus Curiae 27–28.
All the while, the federal government has operated on the
same understanding. Brief for United States as Amicus
Curiae 24. No less than Felix Cohen, whose authoritative
treatise the Court repeatedly cites, agreed while serving as
Acting Solicitor of the Interior in 1941 that “all offenses by
or against Indians” in the former Indian Territory “are sub-
ject to State laws.” App. to Supp. Reply Brief for Peti-
tioner in Sharp v. Murphy, O. T. 2018, No. 17–1107, p. 1a
(Memorandum for Commissioner of Indian Affairs (July 11,
1941)). In the view of the Department of the Interior, such
state jurisdiction was appropriate because the reservations
in the Territory “lost their character as Indian country”
by the time Oklahoma became a State. App. to Brief for
United States as Amicus Curiae 4a (Letter from O. Chap-
man, Assistant Secretary of the Interior, to the Attorney
General (Aug. 17, 1942)); see also supra, at 964, n. 6.
Indeed, far from disputing Oklahoma's jurisdiction, the
Five Tribes themselves have repeatedly and emphatically
agreed that no reservation exists. After statehood, tribal
leaders and members frequently informed Congress that
“there are no reservations in Oklahoma.” App. to Brief for
Respondent 19a (Testimony of Hon. Bill Anoatubby, Gover-
nor, Chickasaw Nation, Hearings before the Subcommittee
on Indian, Insular and Alaska Native Affairs of the House

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969
Roberts, C. J., dissenting
Committee on Natural Resources (Feb. 24, 2016)).
8
They
took
the same position before federal courts. Before this
litigation started, the Creek Nation represented to the Tenth
Circuit that there is only “ `checkerboard' Indian country
within its former reservation boundaries.” Reply Brief in
No. 09–5123, p. 5 (emphasis added). And the Nation never
once contended in this Court that a sprawling reservation
still existed in the more than a century that preceded the
present disputes.
Like the Creek, this Court has repeatedly described the
area in question as the “former” lands of the Creek Nation.
See Grayson v. Harris, 267 U. S. 352, 353 (1925) (lands “lying
within the former Creek Nation”); Woodward, 238 U. S., at
285 (lands “formerly part of the domain of the Creek Na-
tion”); Washington v. Miller, 235 U. S. 422, 423 (1914) (lands
“within what until recently was the Creek Nation”). Yet
today the Court concludes that the lands have been a Creek
reservation all along—contrary to the position shared for the
past century by this Court, the United States, Oklahoma,
and the Creek Nation itself.
Under our precedent, Oklahoma's unquestioned, century-
long exercise of jurisdiction supports the conclusion that no
reservation persisted past statehood. See Yankton Sioux
Tribe, 522 U. S., at 357; Hagen, 510 U. S., at 421; Rosebud
Sioux Tribe, 430 U. S., at 604–605. “Since state jurisdiction
over the area within a reservation's boundaries is quite lim-
ited, the fact that neither Congress nor the Department of
8
See App. to Brief for Respondent 18a–19a (excerpting various state-
ments before Congress, including: “[w]e are not a reservation tribe” (Prin-
cipal Cherokee Chief, 1982), “Oklahoma, . . . of course, is not a reservation
State” (Chickasaw Governor, 1988), “Oklahoma is not [a reservation
State]” and “[w]e have no surface reservations in Oklahoma” (Chickasaw
advisor, 2011), as well as references to the boundaries and lands of “former
reservation[s]” (Chickasaw nominee for Assistant Secretary of Indian Af-
fairs, 2012; Inter-Tribal Council of the Five Civilized Tribes, 2016)).

970 M
cGIRT v. OKLAHOMA
Roberts, C. J., dissenting
Indian Affairs has sought to exercise its authority over this
area,
or to challenge the State's exercise of authority is a
factor entitled to weight as a part of the `jurisdictional his-
tory.' ” Id., at 603–604 (citations omitted).
Third, consider the “subsequent demographic history” of
the lands at issue, which provides an “ `additional clue' ” as
to the meaning of Congress's actions. Parker, 577 U. S., at
492 (quoting Solem, 465 U. S., at 472). Continuing from
statehood to the present, the population of the lands has re-
mained approximately 85%–90% non-Indian. See Brief for
Respondent 43; Murphy v. Royal, 875 F. 3d 896, 965 (CA10
2017). “[T]hose demographics signify a diminished reserva-
tion.” Yankton Sioux Tribe, 522 U. S., at 357. The Court
questions whether the consideration of demographic history
is appropriate, ante, at 914–915, 922–923, but we have deter-
mined that it is a “necessary expedient.” Solem, 465 U. S.,
at 472, and n. 13 (emphasis added); see Parker, 577 U. S., at
492. And for good reason. Our precedents recognize that
disestablishment cases call for a wider variety of tools than
more workaday questions of statutory interpretation.
Supra, at 948. In addition, the use of demographic data ad-
dresses the practical concern that “[w]hen an area is predom-
inately populated by non-Indians with only a few surviving
pockets of Indian allotments, fnding that the land remains
Indian country seriously burdens the administration of state
and local governments.” Solem, 465 U. S., at 471–472, n. 12.
Here those burdens—the product of a century of settled
understanding—are extraordinary. Most immediately, the
Court's decision draws into question thousands of convictions
obtained by the State for crimes involving Indian defendants
or Indian victims across several decades. This includes con-
victions for serious crimes such as murder, rape, kidnapping,
and maiming. Such convictions are now subject to jurisdic-
tional challenges, leading to the potential release of numer-
ous individuals found guilty under state law of the most

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971
Roberts, C. J., dissenting
grievous offenses.
9
Although
the federal government may
be able to reprosecute some of these crimes, it may lack the
resources to reprosecute all of them, and the odds of convict-
ing again are hampered by the passage of time, stale evi-
dence, fading memories, and dead witnesses. See Brief for
United States as Amicus Curiae 37–39. No matter, the
Court says, these concerns are speculative because “many
defendants may choose to fnish their state sentences rather
than risk reprosecution in federal court.” Ante, at 933.
Certainly defendants like McGir t—convicted of ser ious
crimes and sentenced to 1,000 years plus life in prison—will
not adopt a strategy of running out the clock on their state
sentences. At the end of the day, there is no escaping that
today's decision will undermine numerous convictions ob-
tained by the State, as well as the State's ability to prosecute
serious crimes committed in the future.
Not to worry, the Court says, only about 10%–15% of Okla-
homa citizens are Indian, so the “majority” of prosecutions
will be unaffected. Ibid. But the share of serious crimes
committed by 10%–15% of the 1.8 million people in eastern
Oklahoma, or of the 400,000 people in Tulsa, is no small
number.
Beyond the criminal law, the decision may destabilize the
governance of vast swathes of Oklahoma. The Court, de-
spite briefy suggesting that its decision concerns only a nar-
row question of criminal law, ultimately acknowledges that
“many” federal laws, triggering a variety of rules, spring into
effect when land is declared a reservation. Ante, at 935.
9
The Court suggests that “well-known” “procedural obstacles” could
prevent challenges to state convictions. Ante, at 933. But, under Okla-
homa law, it appears that there may be little bar to state habeas relief
because “issues of subject matter jurisdiction are never waived and can
therefore be raised on a collateral appeal.” Murphy v. Royal, 875 F. 3d
896, 907, n. 5 (CA10 2017) (quoting Wallace v. State, 935 P. 2d 366, 372
(Okla. Crim. App. 1997)).

972 M
cGIRT v. OKLAHOMA
Roberts, C. J., dissenting
State and tribal authority are also transformed. As to
the
State, its authority is clouded in signifcant respects
when land is designated a reservation. Under our prece-
dents, for example, state regulation of even non-Indians is
preempted if it runs afoul of federal Indian policy and tribal
sovereignty based on a nebulous balancing test. This test
lacks any “rigid rule”; it instead calls for a “particularized
inquiry into the nature of the state, federal, and tribal inter-
ests at stake,” contemplated in light of the “broad policies
that underlie” relevant treaties and statutes and “notions of
sovereignty that have developed from historical traditions
of tribal independence.” White Mountain Apache Tribe v.
Bracker, 448 U. S. 136, 142, 144–145 (1980). This test mires
state efforts to regulate on reservation lands in signifcant
uncertainty, guaranteeing that many efforts will be deemed
permissible only after extensive litigation, if at all.
10
In addition to undermining state authority, reservation
status adds an additional, complicated layer of governance
over the massive territory here, conferring on tribal govern-
ment power over numerous areas of life—including powers
over non-Indian citizens and businesses. Under our prece-
dents, tribes may regulate non-Indian conduct on reservation
land, so long as the conduct stems from a “consensual rela-
tionship[ ] with the tribe or its members” or directly affects
“the political integrity, the economic security, or the health
or welfare of the tribe.” Montana v. United States, 450
10
See, e. g., White Mountain Apache Tribe, 448 U. S., at 148–151 (bar-
ring State from imposing motor carrier license tax and fuel use taxes on
non-Indian logging companies that harvested timber on a reservation);
Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U. S. 685, 690–
692 (1965) (barring State from taxing income earned by a non-Indian who
operated a trading post on a reservation); New Mexico v. Mescalero
Apache Tribe, 462 U. S. 324, 325 (1983) (barring State from regulating
hunting and fshing by non-Indians on a reservation); see also Brendale v.
Con federated Tribes and Bands of Yakima Nation, 492 U. S. 408, 448
(1989) (opinion of Stevens, J.) (arguing that it is “impossible to articulate
precise rules that will govern whenever a tribe asserts that a land use
approved by a county board is pre-empted by federal law”).

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973
Thomas, J., dissenting
U. S. 544, 565–566 (1981); see Cohen § 6.02(2)(a), at 506–507.
Tr
ibes may also impose certain taxes on non-Indians on res-
ervation land, see Kerr-McGee Corp. v. Navajo Tribe, 471
U. S. 195, 198 (1985), and in this litigation, the Creek Nation
contends that it retains the power to tax nonmembers doing
business within its borders. Brief for Muscogee (Creek)
Nation as Amicus Curiae 18, n. 6. No small power, given
that those borders now embrace three million acres, the city
of Tulsa, and hundreds of thousands of Oklahoma citizens.
Recognizing the signifcant “potential for cost and confict”
caused by its decision, the Court insists any problems can be
ameliorated if the citizens of Oklahoma just keep up the
“spirit” of cooperation behind existing intergovernmental
agreements between Oklahoma and the Five Tribes. Ante,
at 936–937. But those agreements are small potatoes com-
pared to what will be necessary to address the disruption
inficted by today's decision.
The Court responds to these and other concerns with the
truism that signifcant consequences are no “license for us
to disregard the law.” Ante, at 936. Of course not. But
when those consequences are drastic precisely because they
depart from how the law has been applied for more than a
century—a settled understanding that our precedents de-
mand we consider—they are reason to think the Court may
have taken a wrong turn in its analysis.
***
As the Creek, the State of Oklahoma, the United States,
and our judicial predecessors have long agreed, Congress dis-
established any Creek reservation more than 100 years ago.
Oklahoma therefore had jurisdiction to prosecute McGirt. I
respectfully dissent.
Justice Thomas, dissenting.
I agree with The Chief Justice that the former Creek
Nation Reservation was disestablished at statehood and
Oklahoma therefore has jurisdiction to prosecute petitioner

974 M
cGIRT v. OKLAHOMA
Thomas, J., dissenting
for sexually assaulting his wife's granddaughter. Ante, at
938
–939 (dissenting opinion). I write separately to note an
additional defect in the Court's decision: It reverses a state-
court judgment that it has no jurisdiction to review. “[W]e
have long recognized that `where the judgment of a state
court rests upon two grounds, one of which is federal and
the other non-federal in character, our jurisdiction fails if the
non-federal ground is independent of the federal ground and
adequate to support the judgment.' ” Michigan v. Long,
463 U. S. 1032, 1038, n. 4 (1983) (quoting Fox Film Corp. v.
Muller, 296 U. S. 207, 210 (1935)). Under this well-settled
rule, we lack jurisdiction to review the Oklahoma Court of
Criminal Appeals' decision, because it rests on an adequate
and independent state ground.
In his application for state postconviction relief, petitioner
claimed that Oklahoma lacked jurisdiction to prosecute him
because his crime was committed on Creek Nation land and
thus was subject to the exclusive jurisdiction of the Federal
Government under the Major Crimes Act, 18 U. S. C. § 1153.
In support of his argument, petitioner cited the Tenth's Cir-
cuit's decision in Murphy v. Royal, 875 F. 3d 896 (2017).
The Oklahoma Court of Criminal Appeals concluded that
petitioner's claim was procedurally barred under state law
because it was “not raised previously on direct appeal” and
thus was “waived for further review.” App. A to Pet. for
Cert. 2 (citing Okla. Stat., Tit. 22, § 1086 (2011)). The court
found no grounds for excusing this default, explaining that
“[p]etitioner [had] not established any suffcient reason why
his current grounds for relief were not previously raised.”
App. A to Pet. for Cert. 2. This state procedural bar was
applied independent of any federal law, and it is adequate to
support the decision below. We therefore lack jurisdiction
to disturb the state court's judgment.
There are two possible arguments in favor of jurisdiction,
neither of which hold water. First, one might claim that the
state procedural bar is not an “adequate” ground for decision

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975
Thomas, J., dissenting
in this case. In Murphy, the Tenth Circuit suggested that
Oklahoma
law permits jurisdictional challenges to be raised
for the frst time on collateral review. 875 F. 3d, at 907, n. 5
(citing Wallace v. State, 1997 OK CR 18, 935 P. 2d 366). But
the Oklahoma Court of Criminal Appeals did not even hint
at such grounds for excusing petitioner's default here. More
importantly, however, we may not go beyond “the four cor-
ners of the opinion” and delve into background principles of
Oklahoma law to determine the adequacy of the independent
state ground. Long, 463 U. S., at 1040. This Court put an
end to that approach in Long, noting that “[t]he process of
examining state law is unsatisfactory because it requires us
to interpret state laws with which we are generally unfamil-
iar, and which often, as in this case, have not been discussed
at length by the parties.” Id., at 1039. Moreover, such
second-guessing disrespects “ the independence of state
courts,” id., at 1040, and the State itself, Coleman v. Thomp-
son, 501 U. S. 722, 738–739 (1991).
Second, one might argue, as the Court does, that we have
jurisdiction because the decision below rests on federal, not
state, grounds. See ante, at 933–934, n. 15. It is true that
the Oklahoma Court of Criminal Appeals briefy recited the
procedural history of Murphy and recognized that the Tenth
Circuit's decision—which we granted certiorari to review—
is not yet fnal. But contrary to the Court's assertion that
brief discussion of federal case law did not come close to “ad-
dress[ing] the merits of [petitioner's] federal [Major Crimes
Act] claim.” Ante, at 934, n. 15. The state court did not
analyze the relevant statutory text or this Court's decisions
in Solem v. Bartlett, 465 U. S. 463 (1984), and Nebraska v.
Parker, 577 U. S. 481 (2016). It reads far too much into the
opinion to claim that the court's brief reference to the Tenth
Circuit's decision in Murphy transformed the state court's
decision into one that “fairly appears to rest primarily on
federal law or to be interwoven with federal law,” Long,
supra, at 1040–1041; see also ante, at 934, n. 15. Nothing in

976 M
cGIRT v. OKLAHOMA
Thomas, J., dissenting
the court's opinion suggests that its judgment was at all
based
on federal law. Thus, even if we were to set aside the
fact that the state court “clearly and expressly state[d] that
[its decision] was based on state procedural grounds,” we
could not presume jurisdiction here. Coleman, supra, at
735–736 (internal quotation marks omitted).
The Court might think that, in the grand scheme of things,
this jurisdictional defect is fairly insignifcant. After all, we
were bound to resolve this federal question sooner or later.
See Royal v. Murphy, 584 U. S. 992 (2018). But our desire
to decisively “settle [important disputes] for the sake of con-
venience and effciency” must yield to the “overriding and
time-honored concern about keeping the Judiciary's power
within its proper constitutional sphere.” Hollingsworth v.
Perry, 570 U. S. 693, 704–705 (2013) (internal quotation
marks omitted). Because the Oklahoma court's “judgment
does not depend upon the decision of any federal question[,]
we have no power to disturb it.” Enterprise Irrigation
Dist. v. Farmers Mut. Canal Co., 243 U. S. 157, 164 (1917).
I agree with The Chief Justice that the Court misap-
plies our precedents in granting petitioner relief. Ante, at
943–973 (dissenting opinion). But in doing so, the Court also
overrides Oklahoma's statutory procedural bar, upsetting a
violent sex offender's conviction without the power to do
so. The State of Oklahoma deserves more respect under
our Constitution's federal system. Therefore, I respectfully
dissent.

OCTOBER
TERM, 2019
977
Syllabus
SHARP, WARDEN v. MURPHY
certiorari
to the united states court of appeals for
the tenth circuit
No. 17–1107. Argued November 27, 2018—Decided July 9, 2020
Held: The judgment of the Court of Appeals—which held that Congress
has not disestablished the Creek Reservation and thus Mr. Murphy's
crime is subject to exclusive federal jurisdiction because Mr. Murphy is
an Indian and the crime occurred in Indian country—is affrmed for the
reasons stated in McGirt v. Oklahoma, 591 U. S. 894 (2020).
875 F. 3d 896, affrmed.
Lisa S. Blatt argued the cause for petitioner. With her
on the briefs were Mike Hunter, Attorney General of Okla-
homa, Mithun Mansinghani, Solicitor General, Jennifer
Crabb, Assistant Attorney General, Michael K. Velchik and
Randall Yates, Assistant Solicitors General, Sally L. Pei,
Stephen K. Wirth, and R. Reeves Anderson.
Deputy Solicitor General Kneedler argued the cause for
the United States as amicus curiae urging reversal. With
him on the briefs were Solicitor General Francisco, Assist-
ant Attorney General Clark, Acting Assistant Attorney
General Wood, Erica L. Ross, William B. Lazarus, Eliza-
beth Ann Peterson, and James A. Maysonett.
Ian Heath Gershengorn argued the cause for respondent.
With him on the briefs were Patti Palmer Ghezzi, Emma
Rolls, Michael Lieberman, Zachary C. Schauf, David A.
Strauss, and Sarah M. Konsky.
Riyaz A. Kanji argued the cause for Muscogee (Creek)
Nation as amicus curiae urging affrmance. With him on
the br iefs were Da v i d A. G i ampe tro n i and Co r y J.
Albright.*
*Briefs of amici curiae urging reversal were fled for the State of Ne-
braska et al. by Douglas J. Peterson, Attorney General of Nebraska,
James D. Smith, Solicitor General, David A. Lopez, Deputy Solicitor Gen-
eral, and Ryan S. Post, Assistant Attorney General, by Derek Schmidt,

978 SHARP
v. MURPHY
Per Curiam
Per Curiam.
The
judgment of the United States Court of Appeals for
the Tenth Circuit is affrmed for the reasons stated in McGirt
v. Oklahoma, 591 U. S. 894 (2020).
It is so ordered.
Justice Gorsuch took no part in the consideration or
decision of this case.
Justice Thomas and Justice Alito dissent.
Attorney General of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney
General, Toby Crouse, Solicitor General, and Bryan C. Clark and Dwight
R. Carswell, Assistant Solicitors General, and by the Attorneys General
of their respective States as follows: Jeff Landry of Louisiana, Bill
Schuette of Michigan, Tim Fox of Montana, Marty J. Jackley of South
Dakota, Ken Paxton of Texas, Sean D. Reyes of Utah, and Peter K. Mi-
chael of Wyoming; for the Environmental Federation of Oklahoma, Inc.,
et al. by Lynn H. Slade and Sarah M. Stevenson; for the International
Municipal Lawyers Association et al. by Charles W. Thompson, Jr.,
Amanda Kellar Karras, and Sarah M. Shal f; for the Oklahoma Independ-
ent Petroleum Association by Blaine H. Evanson and Anthony J. Ferate;
and for the Oklahoma Sheriffs' Association et al. by Kyle T. Cutts and
Robert D. Cheren.
Briefs of amici curiae urging affrmance were fled for Historians et al.
by L. Susan Work, Todd Hembree, and Chrissi Ross Nimmo; for the Na-
tional Congress of American Indians by Colette Routel; for the National
Indigenous Women's Resource Center et al. by Mary Kathryn Nagle; for
David Boren et al. by Robert H. Henry, Michael Burrage, Stephen H.
Greetham, Brad Mallett, Douglas B. L. Endreson, and Frank S. Holleman
IV; and for Troy A. Eid et al. by Mr. Eid, pro se, and Jennifer H. Weddle.

OCTOBER
TERM, 2019
979
Per Curiam
BARR, ATTORNEY GENERAL, et al. v. LEE et al.
on
application for stay or vacatur
No. 20A8. Decided July 14, 2020
The District Court preliminarily enjoined four federal executions—hours
before the frst was scheduled—on the ground that the single drug pro-
tocol of pentobarbital the Government plans to use to carry out the
executions likely constitutes cruel and unusual punishment prohibited
by the Eighth Amendment. The Government presented an application
for stay or vacatur to The Chief Justice, which was referred by him
to the Court.
Held: Vacatur of the District Court's injunction is appropriate because the
prisoners have not established a likelihood of success on the merits of
their Eighth Amendment claim. The Court has never concluded that a
State's execution method qualifes as cruel and unusual. Bucklew v.
Precythe, 587 U. S. 119, 133. The Federal Government here selected a
lethal injection execution protocol that has become a mainstay of state
executions and has been used to carry out more than 100 executions.
Pentobarbital has been thought to be less painful and more humane than
traditional methods of execution, and “does not carry the risks” of pain
that some have associated with other lethal injection protocols. Zagor-
ski v. Parker, 586 U. S. 938, 939 (Sotomayor, J., dissenting from denial
of application for stay and denial of certiorari). The drug 's use has
been upheld by numerous Courts of Appeals against Eighth Amendment
challenges similar to the one presented here. Against this backdrop,
the federal prisoners present new expert declarations suggesting that
pentobarbital will cause the sensation of drowning or asphyxiation, a
suggestion challenged by the Government's experts. No justifcation
exists here for last-minute intervention by a federal court.
Preliminary injunction vacated.
Per Curiam.
The application for stay or vacatur presented to The
Chief Justice and by him referred to the Court is granted.
The District Court's July 13, 2020 order granting a prelimi-
nary injunction is vacated.
The plaintiffs in this case are all federal prisoners who
have been sentenced to death for murdering children. The
plaintiffs committed their crimes decades ago and have long

980 B
ARR v. LEE
Per Curiam
exhausted all avenues for direct and collateral review. The
frst
of their executions was scheduled to take place this af-
ternoon, with others to follow this week and next month.
To carry out these sentences, the Federal Government plans
to use a single drug—pentobarbital sodium—that “is widely
conceded to be able to render a person fully insensate” and
“does not carry the risks” of pain that some have associated
with other lethal injection protocols. Zagorski v. Parker,
586 U. S. 938, 939 (2018) (Sotomayor, J., dissenting from de-
nial of application for stay and denial of certiorari).
Hours before the frst execution was set to take place, the
District Court preliminarily enjoined all four executions on
the ground that the use of pentobarbital likely constitutes
cruel and unusual punishment prohibited by the Eighth
Amendment. Vacatur of that injunction is appropriate be-
cause, among other reasons, the plaintiffs have not estab-
lished that they are likely to succeed on the merits of their
Eighth Amendment claim. That claim faces an exceedingly
high bar. “This Court has yet to hold that a State's method
of execution qualifes as cruel and unusual.” Bucklew v.
Precythe, 587 U. S. 119, 133 (2019). For good reason—“[f]ar
from seeking to superadd terror, pain, or disgrace to their
executions, the States have often sought more nearly the
opposite,” developing new methods, such as lethal injection,
thought to be less painful and more humane than traditional
methods, like hanging, that have been uniformly regarded as
constitutional for centuries. Ibid. The Federal Govern-
ment followed this trend by selecting a lethal injection proto-
col—single-dose pentobarbital—that has become a mainstay
of state executions. Pentobarbital:
•
Has been adopted by fve of the small number of States
that currently implement the death penalty.
•
Has been used to carry out over 100 executions, with-
out incident.
•
Has been repeatedly invoked by prisoners as a less pain-
ful and risky alternative to the lethal injection protocols
of other jurisdictions.

Cite
as: 591 U. S. 979 (2020)
981
Breyer, J., dissenting
•
W
as upheld by this Court last year, as applied to a pris-
oner with a unique medical condition that could only
have increased any baseline risk of pain associated with
pentobarbital as a general matter. See Bucklew, 587
U. S. 119.
•
Has been upheld by numerous Courts of Appeals against
Eighth Amendment challenges similar to the one pre-
sented here. See, e. g., Whitaker v. Collier, 862 F. 3d
490 (CA5 2017); Zink v. Lombardi, 783 F. 3d 1089 (CA8
2015); Gissendaner v. Commissioner, 779 F. 3d 1275
(CA11 2015).
Against this backdrop, the plaintiffs cite new expert decla-
rations suggesting that pentobarbital causes prisoners to ex-
perience “fash pulmonary edema,” a form of respiratory dis-
tress that temporarily produces the sensation of drowning or
asphyxiation. But the Government has produced competing
expert testimony of its own, indicating that any pulmonary
edema occurs only after the prisoner has died or been ren-
dered fully insensate. The plaintiffs in this case have not
made the showing required to justify last-minute interven-
tion by a Federal Court. “Last-minute stays” like that is-
sued this morning “should be the extreme exception, not the
norm.” Bucklew, 587 U. S., at 150. It is our responsibility
“to ensure that method-of-execution challenges to lawfully
issued sentences are resolved fairly and expeditiously,” so
that “the question of capital punishment” can remain with
“the people and their representatives, not the courts, to re-
solve.” Ibid. In keeping with that responsibility, we va-
cate the District Court's preliminary injunction so that the
plaintiffs' executions may proceed as planned.
It is so ordered.
Justice Breyer, with whom Justice Ginsburg joins,
dissenting.
Today, for the frst time in 17 years, the Federal Govern-
ment will execute an inmate, Daniel Lewis Lee. I have pre-

982 B
ARR v. LEE
Breyer, J., dissenting
viously described how various features of the death penalty
as
currently administered show that it may well violate the
Constitution. See Glossip v. Gross, 576 U. S. 863, 908–946
(2015) (dissenting opinion). The Federal Government's deci-
sion to resume executions renders the question of the death
penalty's constitutionality yet more pressing.
Given the fnality and seriousness of a death sentence, it
is particularly important to ensure that the individuals sen-
tenced to death are guilty, that they received full and fair
procedures, and that they do not spend excessively long peri-
ods of time on death row. Courts must also ensure that exe-
cutions take place through means that are not inhumane.
This case illustrates at least some of the problems the
death penalty raises in light of the Constitution's prohibi-
tion against “cruel and unusual punishmen[t].” Amdt. 8.
Mr. Lee was sentenced to death in 1999 and has now spent
over 20 years on death row. Such lengthy delays infict se-
vere psychological suffering on inmates and undermine the
penological rationale for the death penalty. See Glossip, 576
U. S., at 923–935 (Breyer, J., dissenting). Moreover, the
death penalty is often imposed arbitrarily. Id., at 915–923.
Mr. Lee's codefendant in his capital case was sentenced
to life imprisonment despite committing the same crime.
Amended Judgment in Lee v. United States, No. 20–2351
(CA 8), pp. 3–4 (July 12, 2020) (Kelly, J., dissenting from
denial of stay of execution); id., at 5–7 (explaining that
Mr. Lee's execution “raises real concerns about the arbitrary
application of the death penalty”).
Moreover, there are signifcant questions regarding the
constitutionality of the method the Federal Government will
use to execute him. The Government announced on July 25,
2019, that it planned to resume federal executions, after nearly
two decades, pursuant to a new single-drug protocol using
pentobarbital. See Press Release, Dept. of Justice, Federal
Government to Resume Capital Punishment After Nearly
Two Decade Lapse, https://www.justice.gov/opa /pr/federal-

Cite
as: 591 U. S. 979 (2020)
983
Sotomayor, J., dissenting
government-resume-capital-punishment-after-nearly-two-
decade-lapse
. In an opinion preliminarily enjoining the exe-
cution of Mr. Lee and three other plaintiffs, the U. S. District
Court for the District of Columbia explained that the “scien-
tifc evidence before [it] overwhelmingly indicates that the
[Government's] 2019 Protocol is very likely to cause Plaintiffs
extreme pain and needless suffering during their execu-
tions.” Memorandum Opinion in No. 19–mc–145, In the
Matter of the Federal Bureau of Prisons' Execution Proto-
col Cases, Doc. 135, pp. 9, 11 (July 13, 2020). That court also
explained that Mr. Lee and the other plaintiffs had “identi-
fed two available and readily implementable alternative
methods of execution that would signifcantly reduce the risk
of serious pain.” Id., at 18.
In short, the resumption of federal executions promises to
provide examples that illustrate the diffculties of adminis-
tering the death penalty consistent with the Constitution.
As I have previously written, the solution may be for this
Court to directly examine the question whether the death
penalty violates the Constitution. See Glossip v. Gross, 576
U. S., at 946 (dissenting opinion).
Justice Sotomayor, with whom Justice Ginsburg and
Justice Kagan join, dissenting.
The Court hastily disposes of respondents' Eighth Amend-
ment challenge to the use of pentobarbital in the Federal
Government's single-drug execution protocol. In doing so,
the Court accepts the Government's artifcial claim of ur-
gency to truncate ordinary procedures of judicial review.
This sets a dangerous precedent. The Government is poised
to carry out the frst federal executions in nearly two dec-
ades. Yet because of the Court's rush to dispose of this liti-
gation in an emergency posture, there will be no meaningful
judicial review of the grave, fact-heavy challenges respond-
ents bring to the way in which the Government plans to exe-
cute them.

984 B
ARR v. LEE
Sotomayor, J., dissenting
I
Respondents'
original complaint in this case dates back to
2005. Since then, the Government has modifed its execu-
tion protocol in signifcant part, most recently in July 2019
when it replaced the three-drug protocol with a single drug:
pentobarbital sodium. App. to Application for Stay or Vaca-
tur 5a. In light of this change, respondents alleged that the
Government's planned use of pentobarbital could result in
needless pai n and suffer i ng i n v i olati on of the Eighth
Amendment. Among other things, respondents proffered
expert evidence that the majority of those injected with pen-
tobarbital suffer fash pulmonary edema, which can lead to a
sensation akin to drowning and “ `extreme pain, terror, and
panic.' ” Id., at 10a. Respondents frst focused their litiga-
tion efforts on the claim that the 2019 protocol exceeds statu-
tory authority, although they also alleged that the protocol
violated the Administrative Procedure Act, the Controlled
Substances Act, the Food, Drug, and Cosmetic Act, and the
Constitution. The Court of Appeals issued a fnal ruling on
the statutory-authority claim in April 2020, expressly declin-
ing to rule on respondents' remaining claims on the ground
that they were “ `neither addressed by the district court nor
fully briefed.' ” Id., at 7a. This Court denied review two
weeks ago.
On June 15, 2020, the Government announced respondents'
new execution dates. Four days later, respondents fled a
joint motion for a preliminary injunction on their remaining
claims and fled a motion for expedited discovery the follow-
ing day. The parties submitted hundreds of pages of
briefng and exhibits over two weeks. The District Court
decided this record-heavy motion within two weeks, and dur-
ing a time when two sister courts independently stayed two
of the executions. The District Court evaluated respond-
ents' Eighth Amendment challenge and stayed their execu-
tions to permit full consideration by the District Court and
the Court of Appeals of their claims. The Court of Appeals

Cite
as: 591 U. S. 979 (2020)
985
Sotomayor, J., dissenting
denied the Government's motion for a stay, noting that re-
spondents'
claims involve “novel and diffcult constitutional
questions” that require the beneft of “further factual and
legal development.” The court sua sponte set an expedited
briefng schedule to resolve the appeal. Mere hours later,
however, this Court now grants the Government's last-
minute application to vacate the stay, allowing death-
sentenced inmates to be executed before any court can prop-
erly consider whether their executions are unconstitutionally
cruel and unusual.
II
That outcome is hard to square with this Court's denial of
a similar request by the Government seven months ago in
this very litigation. See Barr v. Roane, 589 U. S. 1097
(2019). That order prohibited the Government to proceed
with executions before the Court of Appeals could address
respondents' different, but equally serious statutory chal-
lenge to the federal execution protocol. And in a separate
statement, three Members of this Court contemplated that
respondents here would not be executed before “the merits
of their Administrative Procedure Act [APA] claim [are] adju-
dicated.” Id., at 1098 (statement of Alito, J., respecting de-
nial of stay or vacatur). They maintained that “in light of
what is at stake, it would be preferable for the District
Court's decision to be reviewed on the merits by the Court
of Appeals for the District of Columbia Circuit before the
executions are carried out.” Ibid.
These statements now ring hollow. By overriding the
lower court's stay, this Court forecloses any review of re-
spondents' APA claims and bypasses the appellate court's
review of a novel challenge to the federal execution protocol.
It does so despite the fact that, whatever may have been
true on the records presented in previous cases, see, e. g.,
Zagorski v. Parker, 586 U. S. 938 (2018), the parties here
introduced conficting expert evidence about the likelihood
that pentobarbital causes pain and suffering before ren-

986 B
ARR v. LEE
Sotomayor, J., dissenting
der i ng a person i nsensate, wh ich no fac tfi nder has
adjudicated.
III
Once
again, the Court has chosen to grant an emergency
application from the Government for extraordinary relief.
Wolf v. Cook County, 589 U. S. 1190, 1194 (2020) (Soto-
mayor, J., dissenting from grant of stay). The dangers of
that practice are particularly severe here, where the grant
of the Government's emergency application inficts the most
irreparable of harms without the deliberation such an action
warrants. See id., at 1195 (entertaining last-minute stay ap-
plications from the Government “upend[s] the normal appel-
late process” and “force[s] the Court to consider important
statutory and constitutional questions that have not been
ventilated fully in the lower courts, on abbreviated time-
tables and without oral argument”).
***
Today's decision illustrates just how grave the conse-
quences of such accelerated decisionmaking can be. The
Court forever deprives respondents of their ability to press
a constitutional challenge to their lethal injections, and pre-
vents lower courts from reviewing that challenge. All of
that is at sharp odds with this Court's own ruling mere
months earlier. In its hurry to resolve the Government's
emergency motions, I fear the Court has overlooked not only
its prior ruling, but also its role in safeguarding robust fed-
eral judicial review. I respectfully dissent.

Reporter’s Note
Orders commencing with July 2, 2020, begin with page 1024. The pre-
ceding orders in 591 U. S., from June 18, 2020, through June 29, 2020, were
reported in Part 1, at 1001–1023. These page numbers are the same as
they will be in the bound volume, thus making the permanent citations
available upon publication of the preliminary prints of the United States
Reports.

1024 OCTOBER
TERM, 2019
591 U. S.
July 2, 2020
C
ertiorari Granted—Vacated and Remanded
No. 18–1019. Box, Commissioner, Indiana Department of
Health, et al. v. Planned Parenthood of Indiana & Ken-
tucky, Inc. C. A. 7th Cir. Reported below: 896 F. 3d 809; and
No. 19–816. Box et al. v. Planned Parenthood of Indi-
ana & Kentucky, Inc. C. A. 7th Cir. Reported below: 937
F. 3d 973. Certiorari granted, judgments vacated, and cases re-
manded for further consideration in light of June Medical Serv-
ices L. L. C. v. Russo, 591 U. S. 299 (2020).
No. 18 –1151. St. Augustine School et al. v. Taylor,
Superintendent of Public Instruction, et al. C. A. 7th
Cir. Certiorari granted, judgment vacated, and case remanded
for further consideration in light of Espinoza v. Montana Dept.
of Revenue, 591 U. S. 464 (2020). Reported below: 906 F. 3d 591.
No. 18–1309. Booking.com B. V. v. United States Patent
and Trademark Ofce et al. C. A. 4th Cir. Motion of New
York Intellectual Property Law Association for leave to fle brief
as amicus curiae granted. Certiorari granted, judgment va-
cated, and case remanded for further consideration in light of
Peter v. NantKwest, Inc., 589 U. S. 23 (2019). Reported below:
915 F. 3d 171.
No. 19–978. Team Resources Inc. et al. v. Securities and
Exchange Commission. C. A. 5th Cir. Certiorari granted,
judgment vacated, and case remanded for further consideration
in light of Liu v. SEC, 591 U. S. 71 (2020). Reported below: 942
F. 3d 272.
No. 19–7714. de Maison v. Securities and Exchange Com-
mission. C. A. 2d Cir. Motion of petitioner for leave to proceed
in forma pauperis granted. Certiorari granted, judgment va-
cated, and case remanded for further consideration in light of Liu
v. SEC, 591 U. S. 71 (2020). Reported below: 785 Fed. Appx. 3.
Miscellaneous Orders
No. 19A1063. Merrill, Alabama Secretary of State,
et al. v. People First of Alabama et al. D. C. N. D. Ala.
Application for stay, presented to Justice Thomas, and by him
referred to the Court, granted, and the District Court's June 15,

ORDERS 1025
591 U. S.
J
uly 2, 2020
2020, order granting preliminary injunction is stayed pending dis-
positi
on of the appeal in the in the United States Court of Appeals
for the Eleventh Circuit and disposition of the petition for writ
of certiorari, if such writ is timely sought. Should the petition
for writ of certiorari be denied, this stay shall terminate automat-
ically. In the event the petition for writ of certiorari is granted,
the stay shall terminate upon the sending down of the judgment
of this Court. Justice Ginsburg, Justice Breyer, Justice
Sotomayor, and Justice Kagan would deny the application.
No. 19–1389. Texas Democratic Party et al. v. Abbott,
Governor of Texas, et al. C. A. 5th Cir. Motion to expedite
consideration of petition for writ of certiorari before judgment
denied.
Certiorari Granted
No. 19–351. Federal Republic of Germany et al. v. Phil-
ipp et al. C. A. D. C. Cir. Certiorari granted. Reported
below: 894 F. 3d 406.
No. 19–1328. Department of Justice v. House Committee
on the Judiciary. C. A. D. C. Cir. Certiorari granted. Re-
ported below: 951 F. 3d 589.
No. 18–1447. Republic of Hungary et al. v. Simon et al.
C. A. D. C. Cir. Certiorari granted limited to Question 1 pre-
sented by the petition. Reported below: 911 F. 3d 1172.
No. 19–416. Nestle USA, Inc. v. Doe et al.; and
No. 19–453. Cargill, Inc. v. Doe et al. C. A. 9th Cir. Cer-
tiorari granted, cases consolidated, and a total of one hour is
allotted for oral argument. Reported below: 929 F. 3d 623.
Certiorari Denied
No. 19–294. Hamama et al. v. Adducci et al. C. A. 6th
Cir. Certiorari denied. Reported below: 912 F. 3d 869.
No. 19–520. Philipp et al. v. Federal Republic of Ger-
many et al. C. A. D. C. Cir. Certiorari denied. Reported
below: 894 F. 3d 406.
No. 19–677. Yost et al. v. Planned Parenthood South-
west Ohio Region et al. C. A. 6th Cir. Certiorari denied.
Reported below: 931 F. 3d 530.

1026 OCTOBER
TERM, 2019
July 2, 6, 2020 591 U. S.
No. 19–743. Hill, Attorney General of Indiana, et al.
v
. Whole Woman’s Health Alliance et al. C. A. 7th Cir.
Certiorari denied. Reported below: 937 F. 3d 864.
No. 19–983. Reilly et al. v. City of Harrisburg, Penn-
sylvania, et al. C. A. 3d Cir. Certiorari denied. Reported
below: 790 Fed. Appx. 468.
No. 19–1176. Yovino, Fresno County Superintendent of
Schools v. Rizo. C. A. 9th Cir. Certiorari denied. Reported
below: 950 F. 3d 1217.
No. 19–7369. Keen v. Tennessee. Ct. Crim. App. Tenn.
Certiorari denied.
No. 19–7745. Smith v. Dunn, Commissioner, Alabama De-
partment of Corrections. C. A. 11th Cir. Certiorari denied.
Reported below: 924 F. 3d 1330.
No. 18–1516. Price et al. v. City of Chicago, Illinois,
et al. C. A. 7th Cir. Certiorari denied. Justice Thomas
would grant the petition for writ of certiorari. Reported below:
915 F. 3d 1107.
No. 19–1106. Sharp, Interim Warden v. Smith. C. A. 10th
Cir. Motion of respondent for leave to proceed in forma pau-
peris granted. Certiorari denied. Reported below: 935 F. 3d
1064.
July 6, 2020
Miscellaneous Order
No. 19A1053. United States Army Corps of Engineers
et al. v. Northern Plains Resource Council et al. D. C.
Mont. Application for stay, presented to Justice Kagan, and
by her referred to the Court, granted in part and denied in part.
The District Court's May 11, 2020, order granting partial vacatur
and an injunction is stayed, except as it applies to the Keystone
XL pipeline, pending disposition of the appeal in the United
States Court of Appeals for the Ninth Circuit and disposition of
the petition for writ of certiorari, if such writ is timely sought.
Should the petition for writ of certiorari be denied, this stay shall
terminate automatically. In the event the petition for writ of
certiorari is granted, the stay shall terminate upon the sending
down of the judgment of this Court.

ORDERS 1027
591 U. S.
J
uly 8, 9, 2020
July 8, 2020
C
ertiorari Denied
No. 19–8712 (19A1064). Wardlow v. Texas. Ct. Crim. App.
Tex. Application for stay of execution of sentence of death, pre-
sented to Justice Alito, and by him referred to the Court,
denied. Certiorari denied.
No. 19–8835 (19A1065). Wardlow v. Texas. Ct. Crim. App.
Tex. Application for stay of execution of sentence of death, pre-
sented to Justice Alito, and by him referred to the Court,
denied. Certiorari denied.
No. 19–8850 (19A1069). Wardlow v. Davis, Director, Texas
Department of Criminal Justice, Correctional Institu-
tions Division. C. A. 5th Cir. Application for stay of execution
of sentence of death, presented to Justice Alito, and by him
referred to the Court, denied. Certiorari denied.
July 9, 2020
Certiorari Granted—Vacated and Remanded
No. 18–6098. Johnson v. Oklahoma. Ct. Crim. App. Okla.;
No. 18–8801. Terry v. Oklahoma. Ct. Crim. App. Okla.;
No. 19–5417. Bentley v. Oklahoma. Ct. Crim. App. Okla.;
and
No. 19–6428. Davis v. Oklahoma. Ct. Crim. App. Okla. Mo-
ti ons of petiti oners for leave to proceed in fo r m a paupe r is
granted. Certiorari granted, judgments vacated, and cases re-
manded for further consideration in light of McGirt v. Oklahoma,
591 U. S. 894 (2020).
No. 19–1038. Department of Health and Human Serv-
ices et al. v. California et al.;
No. 19–1040. March for Life Education and Defense
Fund v. California et al.; and
No. 19–1053. Little Sisters of the Poor Jeanne Jugan
Residence v. California et al. C. A. 9th Cir. Certiorari
granted, judgment vacated, and cases remanded for further con-
sideration in light of Little Sisters of the Poor Saints Peter and
Paul Home v. Pennsylvania, 591 U. S. 657 (2020). Reported
below: 941 F. 3d 410.

1028 OCTOBER
TERM, 2019
July 9, 10, 2020 591 U. S.
Certiorari Granted
N
o. 19 – 968. Uzuegbunam et al. v. Preczewski et al.
C. A. 11th Cir. Certiorari granted. Reported below: 781 Fed.
Appx. 824.
No. 19–422. Collins et al. v. Mnuchin, Secretary of the
Treasury, et al.; and
No. 19–563. Mnuchin, Secretary of the Treasury, et al.
v. Collins et al. C. A. 5th Cir. Certiorari granted, cases con-
solidated, and a total of one hour is allotted for oral argument.
Reported below: 938 F. 3d 553.
No. 19– 508. AMG Capital Management, LLC, et al. v.
Federal Trade Commission. C. A. 9th Cir.; and
No. 19–825. Federal Trade Commission v. Credit Bureau
Center, LLC, et al. C. A. 7th Cir. Certiorari granted, cases
consolidated, and a total of one hour is allotted for oral argument.
Reported below: No. 19–508, 910 F. 3d 417; No. 19–825, 937 F. 3d
764.
No. 19–511. Facebook, Inc. v. Duguid et al. C. A. 9th Cir.
Certiorari granted limited to Question 2 presented by the peti-
tion. Reported below: 926 F. 3d 1146.
Certiorari Denied
No. 19–914. Credit Bureau Center, LLC, et al. v. Fed-
eral Trade Commission. C. A. 7th Cir. Certiorari denied.
Reported below: 937 F. 3d 764.
No. 19–1201. Bright, Tennessee Commissioner of Trans-
portation v. Thomas. C. A. 6th Cir. Certiorari denied. Re-
ported below: 937 F. 3d 721.
No. 19–575. Charter Communications, Inc., et al. v.
Gallion et al. C. A. 9th Cir. Certiorari denied. The Chief
Justice took no part in the consideration or decision of this peti-
tion. Reported below: 772 Fed. Appx. 604.
July 10, 2020
Dismissal Under Rule 46
No. 18–1401. Peterson v. Linear Controls, Inc. C. A. 5th
Cir. Certiorari dismissed under this Court's Rule 46. Reported
below: 757 Fed. Appx. 370.

ORDERS 1029
591 U. S.
J
uly 14, 15, 16, 2020
July 14, 2020
M
iscellaneous Order
No. 20A6. Peterson et al. v. Barr, Attorney General,
et al. C. A. 7th Cir. Application for stay, presented to Justice
Kavanaugh, and by him referred to the Court, denied.
Certiorari Denied
No. 20–5032 (20A7). Lee v. Watson, Warden, et al. Appli-
cation for stay of execution of sentence of death, presented to
Justice Kavanaugh, and by him referred to the Court, denied.
Certiorari denied. Reported below: 964 F. 3d 663.
July 15, 2020
Miscellaneous Order
No. 20A4. United States et al. v. Purkey. Application to
vacate stay of execution entered by the United States Court of
Appeals for the Seventh Circuit on July 2, 2020, presented to
Justice Kavanaugh, and by him referred to the Court, granted.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and
Justice Kagan would deny the application.
July 16, 2020
Miscellaneous Orders
No. 19A1071. Raysor et al. v. DeSantis, Governor of
Florida, et al. C. A. 11th Cir. Application to vacate stay,
presented to Justice Thomas, and by him referred to the
Court, denied.
Justice Sotomayor, with whom Justice Ginsburg and Jus-
tice Kagan join, dissenting.
This Court's order prevents thousands of otherwise eligible vot-
ers from participating in Florida's primary election simply be-
cause they are poor. And it allows the Court of Appeals for the
Eleventh Circuit to disrupt Florida's election process just days
before the July 20 voter-registration deadline for the August pri-
mary, even though a preliminary injunction had been in place for
nearly a year and a Federal District Court had found the State's
pay-to-vote scheme unconstitutional after an 8-day trial. I would
grant the application to vacate the Eleventh Circuit's stay.

1030 OCTOBER
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Sotomayor, J., dissenting 591 U. S.
I
Th
is case implicates the “ `fundamental political right' to vote.”
Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam). In 2018,
the citizens of Florida amended their State Constitution to restore
this basic right to persons with felony convictions who had com-
pleted “ `all terms' ” of their sentences. See Jones v. Governor
of Fla., 950 F. 3d 795, 800 (CA11 2020) (Jones I). Florida's Legis-
lature and high court have interpreted the amendment to condi-
tion voting eligibility on payment of all fnes, fees, and restitution
imposed as part of a sentence. Id., at 800, 803–804; see also Fla.
Stat. § 98.0751 (2020 Cum. Supp.); Advisory Opinion to Governor
re: Implementation of Amdt. 4, The Voting Restoration Amdt.,
288 So. 3d 1070, 1081 (Fla. 2020). Under this scheme, nearly
a million otherwise-eligible citizens cannot vote unless they pay
money.
Well before the August 18, 2020, Florida primary, several indi-
gent persons with felony convictions challenged the constitutional-
ity of Florida's voter paywall. Among other things, they claimed
that this system violates the Equal Protection Clause, the Due
Process Clause, and the Twenty-fourth Amendment.
In October 2019, the United States District Court for the
Northern District of Florida issued a preliminary injunction, con-
cluding that the plaintiffs were likely to show that Florida's pay-
to-vote scheme constitutes wealth discrimination in violation of
the Equal Protection Clause. See Jones I, 950 F. 3d, at 805.
The court enjoined state offcials from preventing the plaintiffs
from registering to vote, or from voting, simply because they are
unable to pay their outstanding legal fnancial obligations (LFOs).
See ibid.
Months later, the Eleventh Circuit affrmed. It too determined
that the plaintiffs were likely to succeed on their equal protection
claims. Id., at 817. The Eleventh Circuit further found that
Florida's pay-to-vote scheme would fail rational-basis review as
applied to indigent persons, id., at 810–813, and may also fail as
applied to all persons with felony convictions if “a substantial
enough proportion” of them genuinely “cannot pay,” id., at 814.
The Eleventh Circuit declined to rehear the case en banc. For
months, then, the Eleventh Circuit's decision in Jones I has set
out the legal rights of indigent would-be voters like the plain-
tiffs here.

ORDERS 1031
1029
Sotoma
yor, J., dissenting
With the preliminary injunction still in place, the District Court
cer
tifed a class of prospective voters on the equal protection and
Twenty-fourth Amendment claims and held a bench trial. The 8-
day trial included thousands of records and testimony from the
plaintiffs, state and county offcials, public defenders, and experts.
On May 24, 2020, the District Court entered a permanent in-
junction and issued its factual fndings and legal conclusions
in a 125-page opinion. See generally Jones v. DeSantis, 462
F. Supp. 3d 1196 (ND Fla. 2020) (Jones II).
The District Court frst found an equal protection violation.
Guided by the Eleventh Circuit's controlling analysis in Jones I,
the District Court concluded that Florida's pay-to-vote sys-
tem creates an unconstitutional wealth barrier to voting. Jones
II, 462 F. Supp. 3d, at 1217. The court held that the system lacks
any rational basis, fnding “as a fact” that “the overwhelming
majority of felons who have not paid their LFOs in full, but who
are otherwise eligible to vote, are genuinely unable to pay the
required amount.” Id., at 1219. There was no sound reason, the
District Court concluded, for Florida's decision to bar ballot access
on the basis of indigence. Ibid.
Next, the District Court held that Florida's scheme violates
due process. Crediting expert testimony, the court determined
that “many felons do not know, and some have no way to fnd
out, the amount of LFOs included in a judgment.” Id., at
1220. Not only does Florida provide individuals inconsistent in-
formation, but the State's own records are incomplete and unrelia-
ble; the District Court even found that Florida lacks records
of restitution payments it has received. Id., at 1220–1224.
Based on the State's estimates, moreover, the District Court
noted that Florida offcials would need about six years to deter-
mine how much (if anything) currently registered voters (to say
nothing of those who seek to register) must pay to vote. Id., at
1228. Compounding the problem, the District Court found, is
that Florida law puts the risk of error on the prospective voter,
suggesting on its registration forms that a false affrmation of
voting eligibility is a felony “regardless of willfulness.” Id., at
1229.
Last, the District Court concluded that Florida's payment re-
quirement is a tax abridging the right to vote in violation of the

1032 OCTOBER
TERM, 2019
Sotomayor, J., dissenting 591 U. S.
Twenty-fourth Amendment. Id., at 1233–1234. In the District
Cour
t's view, the required payments are taxes because Florida
assesses them “regardless of ” a defendant's “culpability,” and
for the “sole” or “primary purpose of raising revenue to pay for
government operations—for things the state must provide, such
as a criminal-justice system, or things the state chooses to pro-
vide, such as a victim-compensation fund.” Id., at 1233–1234.
Having found several grounds for awarding relief, the District
Court prescribed remedies tailored to the State's existing proce-
dures. In effect, the District Court's remedies created a rebutta-
ble presumption of inability to pay for any person who the State
had already determined was indigent. Id., at 1248. At the
State's suggestion, id., at ibid., the District Court required the
Secretary of State to permit voters to seek an advisory opinion
from Florida's Division of Elections regarding the amount owed
or their inability to pay, id., at 1250–1252. The court also ordered
that a person could register and vote without being prosecuted if
the division did not provide a timely advisory opinion within 21
days. Id., at 1250–1251.
On July 1, 2020—over a month after the District Court's judg-
ment and 19 days before the voter-registration deadline—the
Eleventh Circuit stayed the permanent injunction pending appeal.
The Court of Appeals provided no reasons for its order.
II
This Court errs in refusing to vacate that stay. The Court
may vacate an appellate court stay where (1) the case “could and
very likely would be reviewed here upon fnal disposition in the
court of appeals,” (2) “the rights of the parties . . . may be
seriously and irreparably injured by the stay,” and (3) “the court
of appeals is demonstrably wrong in its application of accepted
standards in deciding to issue the stay.” Coleman v. Paccar Inc.,
424 U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). Although
the Court exercises this power sparingly, it has done so in voting-
rights cases like this one. See, e. g., Frank v. Walker, 574 U. S.
929 (2014) (vacati ng Cour t of Appea ls st ay of per manent
injunction).
This case easily meets the frst two Coleman prongs. By the
District Court's count, “nearly a million” persons are barred from
voting because of Florida's alleged wealth discrimination, inscru-

ORDERS 1033
1029
Sotoma
yor, J., dissenting
table processes, and tax. See Jones II, 462 F. Supp. 3d, at 1203.
A
case implicating the franchise of almost a million people
is exceptionally important and likely to warrant review. See
this Court's Rule 10. And there is no question that these people
would suffer irreparable harm were they denied the vote or
“incentiv[ized] to remain away from the polls” because of
the Eleventh Circuit's conficting orders or Florida's threat
of prosecution. Purcell, 549 U. S., at 5. By contrast, the State
has not shown comparable injury, especially because the Dis-
trict Court's remedies employ existing state procedures that
the State itself proposed. Jones II, 462 F. Supp. 3d, at 1248–
1249.
As for the third prong, the Eleventh Circuit was “demonstrably
wrong in its application of accepted standards in deciding to issue
the stay.” Coleman, 424 U. S., at 1304. The Court of Appeals
not only failed to defer to the District Court's factual fndings,
but it also appears to contradict its prior view of the plaintiffs'
equal protection claims. For starters, the District Court made
extensive “factual fndings to which the Court of Appeals owed
deference,” Purcell, 549 U. S., at 5, including that Florida's pay-
to-vote scheme overwhelmingly affects the indigent and is in-
tended to fund state services regardless of any person's criminal
culpability, Jones II, 462 F. Supp. 3d, at 1219, 1233. The Eleventh
Circuit's “bare order” staying the District Court's decision does
not “provide any factual fndings or indeed any reasoning of its
own,” and “[t]here has been no explanation given by the Court of
Appeals showing the ruling and fndings of the District Court to
be incorrect.” Purcell, 549 U. S., at 5. The law required the
Eleventh Circuit to “give deference to the discretion of the Dis-
trict Court,” but there is “no indication that it did so.” Ibid.
That is the precise error this Court corrected in Purcell.
Equally important, the Eleventh Circuit has created the very
“confusion” and voter chill that Purcell counsels courts to avoid.
Ibid. Precisely because the District Court's decision in Jones II
tracked the Eleventh Circuit's decision in Jones I, the stay upends
the legal status quo nearly a year after the preliminary injunction
took effect. Moreover, the Eleventh Circuit did not vacate Jones
I—a point that further obfuscates the state of the law for would-
be voters just 19 days before the voter-registration deadline. No
doubt tens of thousands of Floridians with felony convictions have

1034 OCTOBER
TERM, 2019
July 16, 2020 591 U. S.
already registered to vote: That is precisely what Jones I said
they
could do. The State even admitted at trial that 85,000 regis-
trations needed screening based on prior felony convictions (in-
cluding eligibility involving LFOs). Jones II, 462 F. Supp. 3d, at
1228. Those who registered in reliance on the preliminary and
permanent injunctions will remain on the voter rolls despite the
Eleventh Circuit's stay. See ibid. (fnding that it would take the
State about six years to review these records). Yet because of
the Eleventh Circuit's decision, these voters will have no notice
of their potential ineligibility or the resulting criminal prosecution
they may face for failing to follow the abrupt change in
law. Making matters worse, the Eleventh Circuit will not hear
argument on this case until August 18, the day of the primary
election.
In short, the plaintiffs have raised serious claims, some of which
the Eleventh Circuit already found likely to succeed. Because
the parties' rights and the legal framework had been well estab-
lished, it was error for the Eleventh Circuit to reverse course in
an unexplained stay order right before an election.
***
This Court's inaction continues a trend of condoning disfran-
chisement. Ironically, this Court has wielded Purcell as a reason
to forbid courts to make voting safer during a pandemic, overrid-
ing two federal courts because any safety-related changes suppos-
edly came too close to election day. See Republican National
Committee v. Democratic National Committee, 589 U. S. 423
(2020) (per curiam). Now, faced with an appellate court stay
that disrupts a legal status quo and risks immense disfranchise-
ment—a situation that Purcell sought to avoid—the Court balks.
I respectfully dissent.
No. 20A9. Barr, Attorney General, et al. v. Purkey.
D. C. D. C. Application for stay or vacatur, presented to The
Chief Justice, and by him referred to the Court, granted. The
District Court's July 15, 2020, order granting preliminary injunc-
tion is vacated.
Justice Breyer, w ith whom Justice Ginsburg joi ns,
dissenting.
Two days ago, the Federal Government conducted its frst exe-
cution in nearly two decades. Today, it will conduct its second.

ORDERS 1035
1034
Breyer,
J., dissenting
Both cases have come before us with the defendants pointing
to
what I believe are serious legal defects of a kind that have
long plagued the administration of the death penalty in the
United States. See Glossip v. Gross, 576 U. S. 863, 908–948 (2015)
(Breyer, J., dissenting).
The frst case, that of Daniel Lewis Lee, revealed the inherent
arbitrariness of the death penalty. Lee was sentenced to death
and his codefendant to life even though the two men committed
the same crime. See Barr v. Lee, 591 U. S. 979, 982 (2020)
(Breyer, J., dissenting); see also Glossip, 576 U. S., at 917 (“40
years of further experience [since Gregg v. Georgia, 429 U. S. 1301
(1976)] make it increasingly clear that the death penalty is im-
posed arbitrarily”). Lee's case also implicated the problem of
excessive delay and the risk of severe and unnecessary suffering
brought about by the Government's chosen method of execution.
Lee, 591 U. S., at 981 (Breyer, J., dissenting). Today's case, that
of Wesley Purkey, raises similar problems.
Consider the problem of delay. See Lackey v. Texas, 514 U. S.
1045 (1995) (Stevens, J., memorandum respecting denial of certio-
rari). Daniel Lee's execution took place more than 20 years after
his trial. See Lee, 591 U. S., at 982 (Breyer, J., dissenting).
Wesley Purkey was sentenced to death over 16 years ago for a
crime committed six years before that. See United States v. Pur-
key, No. 4:01–cr–00308, Doc. No. 505 (WD Mo., Jan. 23, 2004);
United States v. Purkey, 428 F. 3d 738, 745 (CA8 2005). Purkey
is now 68 years old, frail, and suffering from Alzheimer's disease
and other psychiatric conditions. See Report of Dr. Bhushan
Agharkar, in No. 1:19–cv–03570, Doc. 1–1, p. 2 (D DC, Nov. 26,
2019); Report of Dr. Jonathan DeRight, in No. 1:19–cv–03570, Doc.
1–1, at 23 (D DC, fled Nov. 26, 2019). He has undergone many
years of what this Court has called the “immense mental anxiety”
of confnement on death row awaiting an uncertain date of execu-
tion. In re Medley, 134 U. S. 160, 172 (1890) (referring to period
of four weeks); see also Glossip, 576 U. S., at 926–929 (Breyer,
J., dissenting).
The delay itself undermines the penological rationales for the
death penalty: deterrence and retribution. Id., at 929–933; see
also Lee, 591 U. S., at 982 (Breyer, J., dissenting). I have pre-
viously explained that prolonged delays likely reduce the death pen-
alty's deterrent effect. See Glossip, 576 U. S., at 930–932 (dissent-
ing opinion). And after so many years have passed, executing the

1036 OCTOBER
TERM, 2019
Breyer, J., dissenting 591 U. S.
offender may not serve the interest in retribution either. In
Lee'
s case, for example, the victims' relatives explained that Lee's
execution would only “ `bring [the] family more pain.' ” Demillo,
Victims' Relatives Most Vocal Opponents of Man's Execution,
Washington Post, July 13, 2020; see also Robertson, She Doesn't
Want Her Daughter's Killer To Be Put To Death. Should the
Government Listen? N. Y. Times, Oct. 29, 2019. And Purkey
alleges that, in the years since his sentencing, his mental condi-
tion has deteriorated to the point where he no longer understands
why he is being executed. See Complaint in No. 1:19–cv–03570,
Doc. 1, ¶¶ 20–108 (D DC, Nov. 26, 2019). We have “question[ed]
the retributive value of executing a person” under such circum-
stances. Ford v. Wainwright, 477 U. S. 399, 409 (1986).
Purkey's case also raises serious problems of proper procedure.
See Purkey v. United States, 964 F. 3d 603 (CA7 2020). Simplify-
ing the problem, imagine that a death-sentenced defendant's trial
or sentencing suffered from his lawyer's constitutionally inade-
quate performance. Suppose too that his lawyer in his initial
habeas proceeding was himself inadequate because he failed to
raise the trial lawyer's initial constitutional inadequacy. Can the
defendant bring the matter up in a later habeas proceeding, say,
a proceeding where he now has a better lawyer? He can some-
times do so where a state conviction is at issue. See Martinez
v. Ryan, 566 U. S. 1 (2012); Trevino v. Thaler, 569 U. S. 413 (2013).
But can he do so where, as here, a federal conviction is at issue?
In my view, the question, as presented here, is diffcult. On the
one hand, we ought not to have a procedural system where chal-
lenges to a conviction can go on endlessly. On the other hand, is
it consistent with criminal justice principles to allow the execution
of a defendant whose conviction rests upon the constitutional in-
adequacy of a lawyer, when no court has ever adjudicated that
inadequacy?
The question refects the heightened need for reliability in the
death pena lty context. See Gl ossip, 576 U. S., at 909 – 910
(Breyer, J., dissenting). The risk of error that we may accept
as necessary to the functioning of the system more generally is
less tolerable when the punishment is, by defnition, irreparable.
Yet the requisite opportunities to challenge and then correct er-
rors necessarily entail delay that, in turn, undercuts the penologi-
cal rationale for the death penalty. In this context, it is espe-

ORDERS 1037
1034
Sotoma
yor, J., dissenting
cially diffcult to reconcile the competing values of fnality and
accuracy
.
I have written about these matters before. See, e. g., Price v.
Dunn, 587 U. S. 1036 (2019) (opinion dissenting from denial of
application for stay); Jordan v. Mississippi, 585 U. S. 1039 (2018)
(opinion dissenting from denial of certiorari); McGehee v. Hutchin-
son, 581 U. S. 933, 934 (2017) (opinion dissenting from denial of
application for stay of execution); Reed v. Louisiana, 580 U. S.
1166 (2017) (opinion dissenting from denial of certiorari); Sireci v.
Florida, 580 U. S. 1036 (2016) (same); Tucker v. Louisiana, 578
U. S. 1018 (2016) (same); Boyer v. Davis, 578 U. S. 965 (2016)
(same). I repeat them here in summary form because the Fed-
eral Government has resumed executions after a 17-year hiatus.
And the very frst cases reveal the same basic faws that have
long been present in many state cases. That these problems have
emerged so quickly suggests that they are the product not of
any particular jurisdiction or the work of any particular court,
prosecutor, or defense counsel, but of the punishment itself. A
modern system of criminal justice must be reasonably accurate,
fair, humane, and timely. Our recent experience with the Federal
Government's resumption of executions adds to the mounting
body of evidence that the death penalty cannot be reconciled with
those values. I remain convinced of the importance of reconsid-
ering the constitutionality of the death penalty itself.
Justice Sotomayor, with whom Justice Ginsburg, Justice
Breyer, and Justice Kagan join, dissenting.
In a matter of hours, the Government plans to put to death
Wesley Purkey, a 68-year-old federal inmate who has Alzheimer's
disease and, according to a recent in-person evaluation by a foren-
sic psychiatrist, “lack[s] a rational understanding of the basis
for his execution.” Complaint in No. 1:19–cv–03570 (D DC), Doc.
1–1, p. 13 (Purkey Psychiatric Report). Due to these develop-
ments and rapid deteriorations in Purkey's mental state, his coun-
sel fled an action in the United States District Court for the
District of Columbia. The complaint alleges that under Ford v.
Wainwright, 477 U. S. 399 (1986), Purkey is mentally incompetent
to be executed and, at minimum, is entitled to an evidentiary
hearing to evaluate his mental competence before the Govern-
ment proceeds with his execution. The District Court below pre-
liminarily enjoined Purkey's execution, fnding that the evidence

1038 OCTOBER
TERM, 2019
Sotomayor, J., dissenting 591 U. S.
Purkey has put forth thus far established a likelihood of success
on
the merits of his claims. The Government now seeks a stay
or vacatur of that preliminary injunction.
Such a stay is available “only under extraordinary circum-
stances.” Ruckelshaus v. Monsanto Co., 463 U. S. 1315, 1316
(1983) (Blackmun, J., in chambers); see also Maryland v. King, 567
U. S. 1301, 1302 (2012) (Roberts, C. J., in chambers) (listing stay
factors). Accordingly, “[w]hen a matter is pending before a court
of appeals, it long has been the practice of Members of this Court
to grant stay applications only `upon the weightiest considerations.' ”
Fargo Women's Health Org. v. Schafer, 507 U. S. 1013, 1014 (1993)
(O'Connor, J., concurring) (quoting O'Rourke v. Levine, 80 S. Ct. 623,
624, 4 L. Ed. 2d 615 (1960) (Harlan, J., in chambers)). Given the Dis-
trict Court's thorough analysis, and the serious questions that court
raised, I do not believe the Government has carried its “especially
heavy” burden here. Packwood v. Senate Select Comm. on Ethics,
510 U. S. 1319, 1320 (1994) (Rehnquist, C. J., in chambers).
The Government devotes much of its application to arguing
that Purkey's complaint alleges “core habeas” claims that he was
required to bring in his district of confnement, the Southern
District of Indiana, rather than the district in which several fed-
eral offcers responsible for his execution are located, the District
of Columbia. See, e. g., Application for Stay or Vacatur 22. That
is not clearly correct: When an individual advances a Ford claim,
“the only question raised is not whether, but when, his execution
may take place.” Ford, 477 U. S., at 425 (Powell, J., concurring in
part and concurring in judgment) (emphasis deleted). That seems
to make Purkey's allegations more akin to a method-of-execution
claim than a “core habeas” claim challenging the validity of his death
sentence. In any event, the Government's objection here is not that
Purkey failed to raise a valid claim prohibiting his execution. In-
stead, the Government quibbles principally with the venue in which
Purkey fled that claim. In this posture, that protest does not re-
fect an “extraordinary circumstanc[e]” that justifes overturning a
preliminary injunction. Ruckelshaus, 463 U. S., at 1316. Nor does
it support this Court's decision to shortcut judicial review and per-
mit the execution of an individual who may well be incompetent.
Importantly, the Government does not appear to dispute that
Purkey may advance his competency claims in a 28 U. S. C. § 2241
proceeding fled in the Southern District of Indiana. It identifes
no procedural barriers to such a suit. Indeed, the Government
proposed that the District Court below transfer the case to the

ORDERS 1039
1034
Sotoma
yor, J., dissenting
Southern District of Indiana because, in the Government's view,
that
is “the appropriate forum for [Purkey's] habeas action.” De-
fendants' Motion to Dismiss in No. 1:19–cv–03570 (D DC), Doc.
18, p. 46; see also Defendants' Opposition to Plaintiff's Renewed
Motion in No. 1:19–cv–03570, Doc. 26, p. 10 (noting the Govern-
ments' argument to “transfer the case to the Southern District
of Indiana”).* It is thus undisputed that there is a District Court
in which Purkey may properly pursue his Ford claim and his
request for a competency hearing.
Even if Purkey's suit advanced habeas claims properly pursued
through a § 2241 petition in his district of confnement, it would
be far from clear that the District Court below lacked authority
to issue a preliminary injunction while it considered Purkey's
arguments more fully. As the District Court explained, it ap-
pears that “the question of the proper location for a habeas peti-
tion is best understood as a question of personal jurisdiction or
venue” rather than of subject-matter jurisdiction. Rumsfeld v.
Padilla, 542 U. S. 426, 451 (2004) (Kennedy, J., concurring); see
also Order in No. 1:19–cv–03570, Doc. 36, p. 9. Whether Purkey
should have fled in the District of Columbia or the Southern
District of Indiana, it would be passingly strange to maintain, in
the fnal hours before his capital sentence is to be carried out,
that his selection of venue should automatically prevent him from
developing what the District Court found to be a likely meritori-
ous Ford claim and request for a competency hearing. At a mini-
mum, the Government has not carried its “especially heavy” bur-
den of demonstrating that its “core habeas” argument presents a
jurisdictional impediment to the District Court's preliminary
injunction.
The Government's remaining contentions are even less persua-
sive. In particular, the Government has not come close to show-
ing that the District Court erred in fnding Purkey likely to
*To be sure, the Government maintains that if Purkey's claims sounded in
habeas, the District Court below would have lacked jurisdiction over a nec-
essary party to the habeas proceeding: the warden of the federal prison in
Indiana where he is confned. Application for Stay or Vacatur 16–17. But
the Government does not argue that any such jurisdictional problem would
have persisted had Purkey simply fled his complaint in the Southern Dis-
trict of Indiana or if his case were to be transferred to that District. And
the Government acknowledged below that “[a]t least one of the John Doe
defendants” in this litigation was “the warden of [Purkey's] prison.” De-
fendants' Motion to Dismiss in No. 1:19–cv–03570, Doc. 18, at 43.

1040 OCTOBER
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Sotomayor, J., dissenting 591 U. S.
succeed on the merits of his Ford claim and his request for a
competency
hearing. As noted, a forensic psychiatrist who con-
ducted an in-person evaluation of Purkey in late 2019 averred
that “[i]n [his] opinion, to a reasonable degree of medical certainty,
at the time of the evaluation, Mr. Purkey lacked a rational under-
standing of the basis for his execution.” Purkey Psychiatric
Report 12–13; see also id., at 13 (“He lacks a true understand-
ing or rationality that the murder is the basis for his execu-
tion”). There is extensive evidence that Purkey earnestly and
steadfastly believes that the Government plans to execute him
not as punishment for murder, but in retaliation for his “pro-
tracted jailhouse lawyering ” to expose prison abuses. Com-
plaint in No. 1:19–cv–03570, Doc. 1–18, p. 12; see also, e. g., Purkey
Psychiatric Report 13 (“Mr. Purkey has a fxed belief that he
is going to be executed in retaliation for his legal work, to pre-
vent him from being a hassle for the government. This prevents
him from having a rational understanding of the purpose of
his execution”). Purkey even believes his counsel to be “part
of the conspiracy against him and his efforts to litigate against
the pr ison. ” Complai nt i n No. 1:19 – cv– 03570, Doc. 1–1,
at 59. Consistent with such evidence, individuals have described
Purkey's history of delusions, hallucinations, and paranoia. See,
e. g., Purkey Psych iatr ic Repor t 10. And i n 2019, Purkey
was diagnosed with Alzheimer's disease. Complaint in No.
1:19–cv–03570, Doc. 1–1, at 23, 30–31. That is just a small snap-
shot of the thousands of pages of evidence Purkey has already
put forth.
Against that extensive body of evidence, the Government prin-
cipally maintains that the forensic psychiatrist, who unequivocally
opined that Purkey lacked a rational understanding of the basis
for his execution, was confused. See Application for Stay or
Vacatur 24. According to the Government, the psychiatrist
misinterpreted Purkey's failure to understand the reason for
the scheduling of his execution as an inability to grasp the basis
for his execution altogether. But even a cursory review of
the psychiatrist's report reveals no such muddling of concepts.
While the psychiatrist acknowledged that Purkey could “re-
cite the fact that his execution is for the murder of Jennifer
Long,” the psychiatrist continued that Purkey “lacks rational un-
derstanding of that fact” and can only “parro[t]” it “rather than
hav[e] a rational understanding ” of it. Purkey Psychiatric Re-
port 13.

ORDERS 1041
591 U. S.
J
uly 16, 2020
The Government then insists that, even accepting as true Pur-
key'
s evidence of “a history of mental illness” and “paranoid delu-
sional thinking,” such evidence “does not demonstrate incompe-
tency under Ford.” Application for Stay or Vacatur 27 (internal
quotation marks omitted). But the question before the District
Court at the preliminary-injunction stage was not whether Pur-
key conclusively is unable to comprehend the basis for his punish-
ment. Instead, the District Court needed only conclude that Pur-
key would be likely to succeed in establishing a “ `substantial
threshold showing ' ” of incompetence to warrant a competency
hearing, Panetti v. Quarterman, 551 U. S. 930, 949 (2007) (quoting
Ford, 477 U. S., at 426 (opinion of Powell, J.)), or his actual incom-
petence to be executed. On this record, the District Court cor-
rectly concluded that Purkey met this preliminary burden. The
Government's cursory arguments regarding the ultimate merits
of Purkey's claims do not reveal this case to be an “extraordinary”
one justifying the Court's second-guessing of the District Court's
highly factbound assessment. Ruckelshaus, 463 U. S., at 1316.
Finally, there can be no serious dispute that the remaining
equitable considerations at issue heavily favor Purkey. Although
the Government and the family members of the victim have a
legitimate interest in punishing the guilty, that interest must be
measured against Purkey's and the public's interest in ensuring
that such punishment comports with the Constitution. At the
same time, proceeding with Purkey's execution now, despite the
grave questions and factual fndings regarding his mental compe-
tency, casts a shroud of constitutional doubt over the most irrevo-
cable of injuries.
***
Because the Government has not satisfed its “especially heavy”
burden of showing justifcation for staying or vacating the Dis-
trict Court's preliminary injunction, Packwood, 510 U. S., at 1320
(Rehnquist, C. J., in chambers), I respectfully dissent.
No. 20A10. Barr, Attorney General, et al. v. Purkey
et al. D. C. D. C. Application for stay or vacatur, presented
to The Chief Justice, and by him referred to the Court,
granted. The District Court's July 15, 2020, order granting pre-
liminary injunction is vacated.
Certiorari Denied
No. 20–23 (20A11). Hartkemeyer et al. v. Barr, Attorney
General, et al. C. A. 7th Cir. Application for stay of execu-

1042 OCTOBER
TERM, 2019
July 16, 20, 24, 2020 591 U. S.
tion of sentences of death for Wesley Purkey and Dustin Honken,
presented
to Justice Kavanaugh, and by him referred to the
Court, denied. Certiorari denied.
No. 20–26 (20A12). Purkey v. United States et al. C. A.
7th Cir. Application for stay of execution of sentence of death,
presented to Justice Kavanaugh, and by him referred to the
Court, denied. Certiorari denied. Reported below: 964 F. 3d
603.
July 20, 2020
Miscellaneous Orders
No. 20A15 (19–715). Committees of the United States
House of Representatives v. Trump et al. Application for
order to issue the judgment forthwith, presented to The Chief
Justice, and by him referred to the Court, denied. Justice
Sotomayor would grant the application.
No. 20A16 (19–760). Committees of the United States
House of Representatives v. Trump et al. Application for
order to issue the judgment forthwith, presented to The Chief
Justice, and by him referred to the Court, denied. Justice
Sotomayor would grant the application.
July 24, 2020
Miscellaneous Order
No. 19A1070. Calvary Chapel Dayton Valley v. Sisolak,
Governor of Nevada, et al. D. C. Nev. Application for in-
junctive relief, presented to Justice Kagan, and by her referred
to the Court, denied.
Justice Alito, with whom Justice Thomas and Justice
Kavanaugh join, dissenting.
The Constitution guarantees the free exercise of religion. It
says nothing about the freedom to play craps or blackjack, to feed
tokens into a slot machine, or to engage in any other game of
chance. But the Governor of Nevada apparently has different
priorities. Claiming virtually unbounded power to restrict con-
stitutional rights during the COVID–19 pandemic, he has issued
a directive that severely limits attendance at religious services.
A church, synagogue, or mosque, regardless of its size, may not

ORDERS 1043
1042
Alito,
J., dissenting
admit more than 50 persons, but casinos and certain other favored
faci
lities may admit 50% of their maximum occupancy—and in the
case of gigantic Las Vegas casinos, this means that thousands of
patrons are allowed.
That Nevada would discriminate in favor of the powerful gam-
ing industry and its employees may not come as a surprise, but
this Court's willingness to allow such discrimination is disappoint-
ing. We have a duty to defend the Constitution, and even a
public health emergency does not absolve us of that responsibility.
I
Calvary Chapel Dayton Valley is a church located in rural Ne-
vada. It wishes to host worship services for about 90 congre-
gants, a fgure that amounts to 50% of its fre-code capacity. In
conducting these services, Calvary Chapel plans to take many
precautions that go beyond anything that the State requires. In
addition to asking congregants to adhere to proper social distanc-
ing protocols, it intends to cut the length of services in half. It
also plans to require six feet of separation between families seated
in the pews, to prohibit items from being passed among the con-
gregation, to guide congregants to designated doorways along
one-way paths, and to leave suffcient time between services so
that the church can be sanitized. According to an infectious dis-
ease expert, these measures are “equal to or more extensive than
those recommended by the CDC.” Electronic Court Filing in
No. 3:20–CV–00303, Doc. 38–31 (D Nev., June 4, 2020), p. 6 (ECF).
Yet hosting even this type of service would violate Directive
21, Nevada Governor Steve Sisolak's phase-two reopening plan,
which limits indoor worship services to “no more than ffty per-
sons.” ECF Doc. 38–2, § 11. Meanwhile, the directive caps a
variety of secular gatherings at 50% of their operating capacity,
meaning that they are welcome to exceed, and in some cases far
exceed, the 50-person limit imposed on places of worship.
Citing this disparate treatment, Calvary Chapel brought suit in
Federal District Court and sought an injunction allowing it to
conduct services, in accordance with its plan, for up to 50% of
maximum occupancy. The District Court refused to grant relief,
the Ninth Circuit denied Calvary Chapel's application for an in-
junction pending appeal, and now this Court likewise denies relief.
I would grant an injunction pending appeal. Calvary Chapel
is very likely to succeed on its claim that the directive's discrimi-

1044 OCTOBER
TERM, 2019
Alito, J., dissenting 591 U. S.
natory treatment of houses of worship violates the First Amend-
ment.
In addition, unconstitutionally preventing attendance at
worship services inficts irreparable harm on Calvary Chapel and
its congregants, and the State has made no effort to show that
conducting services in accordance with Calvary Chapel's plan
would pose any greater risk to public health than many other
activities that the directive allows, such as going to the gym.
The State certainly has not shown that church attendance under
Calvary Chapel's plan is riskier than what goes on in casinos.
For months now, States and their subdivisions have responded
to the pandemic by imposing unprecedented restrictions on per-
sonal liberty, including the free exercise of religion. This initial
response was understandable. In times of crisis, public offcials
must respond quickly and decisively to evolving and uncertain
situations. At the dawn of an emergency—and the opening days
of the COVID–19 outbreak plainly qualify—public offcials may
not be able to craft precisely tailored rules. Time, information,
and expertise may be in short supply, and those responsible for
enforcement may lack the resources needed to administer rules
that draw fne distinctions. Thus, at the outset of an emergency,
it may be appropriate for courts to tolerate very blunt rules. In
general, that is what has happened thus far during the COVID–
19 pandemic.
But a public health emergency does not give Governors and
other public offcials carte blanche to disregard the Constitution
for as long as the medical problem persists. As more medical
and scientifc evidence becomes available, and as States have time
to craft policies in light of that evidence, courts should expect
policies that more carefully account for constitutional rights.
Governor Sisolak issued the directive in question on May 28, more
than two months after declaring a state of emergency on March
12. Now four months have passed since the original declaration.
The problem is no longer one of exigency, but one of considered
yet discriminatory treatment of places of worship.
II
Calvary Chapel argues that the Governor's directive violates
both the Free Exercise Clause and the Free Speech Clause of the
First Amendment, and I agree that Calvary Chapel has a very
high likelihood of success on these claims.

ORDERS 1045
1042
Alito,
J., dissenting
A
U
nder the Free Exercise Clause, restrictions on religious exer-
cise that are not “neutral and of general applicability” must sur-
vive strict scrutiny. Church of Lukumi Babalu Aye, Inc. v. Hia-
leah, 508 U. S. 520, 531 (1993). “[T]he minimum requirement of
neutrality is that a law not discriminate on its face,” id., at 533,
and “[t]he Free Exercise Clause bars even `subtle departures from
neutrality' on matters of religion.” Masterpiece Cakeshop, Ltd.
v. Colorado Civil Rights Comm'n, 584 U. S. 617, 638 (2018) (quot-
ing Church of Lukumi, 508 U. S., at 534). Here, the departure
is hardly subtle. The Governor's directive specifcally treats wor-
ship services differently from other activities that involve ex-
tended, indoor gatherings of large groups of people.
The face of the directive provides many examples. While
“houses of worship” may admit “no more than ffty persons,” ECF
Doc. 38–2, § 11, many favored facilities that host indoor activities
may operate at 50% capacity. Privileged facilities include bowl-
ing alleys, § 20, breweries, § 26, ftness facilities, § 28, and most
notably, casinos, which have operated at 50% capacity for over a
month, § 35; ECF Doc. 38–3, p. 5, sometimes featuring not only
gambling but live circus acts and shows.
For Las Vegas casinos, 50% capacity often means thousands of
patrons, and the activities that occur in casinos frequently involve
far less physical distancing and other safety measures than the
worship services that Calvary Chapel proposes to conduct. Pa-
trons at a craps or blackjack table do not customarily stay six
feet apart. Casinos are permitted to serve alcohol, which is well
known to induce risk taking, and drinking generally requires at
least the temporary removal of masks. Casinos attract patrons
from all over the country. In anticipation of reopening, one ca-
sino owner gave away 2,000 one-way airline tickets to Las Vegas.
ECF Doc. 38–9, p. 4. And when the Governor announced that
casinos would be permitted to reopen, he invited visitors to come
to the State.
1
The average visitor to Las Vegas visits more than
six different casinos, potentially gathering with far more than 50
persons in each one. ECF Doc. 38–6, p. 44. Visitors to Las
Vegas who gamble do so for more than two hours per day on
1
See Jones, Nevada Governor Green-Lights June 4 Reopening of Casinos;
Las Vegas Gets Ready, L. A. Times (May 26, 2020), www.latimes.com/travel/
story/2020-05-26/nevada-governor-oks-reopening-vegas-prepares.

1046 OCTOBER
TERM, 2019
Alito, J., dissenting 591 U. S.
average, id., at 43, and gamblers in a casino often move from one
spot
to another, trying their luck at different games or at least
at different slot machines.
Houses of worship can—and have—adopted rules that provide
far more protection. Family groups can be given places in the
pews that are more than six feet away from others. Worshippers
can be required to wear masks throughout the service or for all
but a very brief time. Worshippers do not customarily travel
from distant spots to attend a particular church; nor do they
generally hop from church to church to sample different services
on any given Sunday. Few worship services last two hours.
(Calvary Chapel now limits its services to 45 minutes.) And wor-
shippers do not generally mill around the church while a service
is in progress.
The idea that allowing Calvary Chapel to admit 90 worshippers
presents a greater public health risk than allowing casinos to
operate at 50% capacity is hard to swallow, and the State's efforts
to justify the discrimination are feeble. It notes that patrons at
gaming tables are supposed to wear masks and that the service
of food at casinos is now limited, but congregants in houses of
worship are also required to wear masks, and they do not consume
meals during services.
The State notes that facilities other than houses of worship,
such as museums, art galleries, zoos, aquariums, trade schools,
and technical schools, are also treated less favorably than casinos,
but obviously that does not justify preferential treatment for
casinos.
Finally, the State argues that preferential treatment for casinos
is justifed because the State is in a better position to enforce
compliance by casinos, which are under close supervision by state
offcials and subject to penalties if they violate state rules. By
contrast, the State notes, rules for houses of worship must be
enforced by local authorities.
This argument might make some sense if enforcing the 50%
capacity rule were materially harder than enforcing a fat 50-
person rule. But there is no reason to think that is so, let alone
that it would be compelling enough to justify differential treat-
ment of religion. Local offcials responsible for enforcing maxi-
mum occupancy limits during normal times presumably know or
can easily ascertain the limit for particular churches, and the
State does not claim that these offcials have any trouble enforcing

ORDERS 1047
1042
Alito,
J., dissenting
those limits. In many jurisdictions, buildings that host gather-
i
ngs are required to post their maximum occupancy fgure in a
prominent location. Enforcing a 50% limit would not require
local offcials to do anything more than divide that fgure in half,
and there is no reason to think that enforcing that limit would be
any harder than enforcing a 50-person maximum.
Moreover, even if the State's special regulatory power over
casinos could justify different rules for those facilities, the State
would still have no explanation why facilities like bowling alleys,
arcades, and ftness centers are also given the beneft of the 50%
rule. And while the State suggests that it strictly enforces the
rules applicable to casinos, photos and videos taken in casinos
after they were allowed to reopen show widespread and blatant
safety violations. Patrons without masks are seen at close quar-
ters, and the State has not brought to our attention any evidence
that it has cracked down on non-complying casinos. The sharp
spike in COVID–19 cases since the casinos reopened belies the
State's strict enforcement claims.
While the directive's treatment of casinos stands out, other
facilities are also given more favorable treatment than houses of
worship. Take the example of bowling alleys. Some Las Vegas
bowling alleys where tournaments are held can seat hundreds of
spectators, and under the directive, these facilities may admit up
to 50% of capacity. Not only that, the State tolerates seating
arrangements at these facilities that pose far more danger than
the plan Calvary Chapel proposes. An offcial state guidance doc-
ument states that groups of up to 50 people may sit together in
the grandstands of a bowling alley provided that they maintain
social distancing from other groups. ECF Doc. 38–5, p. 9. Thus,
while Calvary Chapel cannot admit more than 50 congregants
even if families sit six feet apart, spectators at a bowling tourna-
ment can sit together in groups of 50 provided that each group
maintains social distancing from other groups.
In sum, the directive blatantly discriminates against houses of
worship and thus warrants strict scrutiny under the Free Exer-
cise Clause.
B
The directive fares no better under the Free Speech Clause.
Laws that restrict speech based on the viewpoint it expresses
are presumptively unconstitutional, see, e. g., Iancu v. Brunetti,
588 U. S. 388, 393 (2019), and under our cases religion counts as

1048 OCTOBER
TERM, 2019
Alito, J., dissenting 591 U. S.
a viewpoint, Rosenberger v. Rector and Visitors of Univ. of Va.,
515
U. S. 819, 831 (1995). Here, the directive plainly discrimi-
nates on the basis of viewpoint. Compare the directive's treat-
ment of casino entertainment and church services. Both involve
expression, but the directive favors the secular expression in ca-
sino shows over the religious expression in houses of worship.
Calvary Chapel has also brought to our attention evidence that
the Governor has favored certain speakers over others. When
large numbers of protesters openly violated provisions of the di-
rective, such as the rule against groups of more than 50 people,
the Governor not only declined to enforce the directive but pub-
licly supported and participated in a protest. Cf. Masterpiece
Cakeshop, 584 U. S., at 636–638. He even shared a video of pro-
testers standing shoulder to shoulder. The State's response to
news that churches might violate the directive was quite different.
The attorney general of Nevada is reported to have said, “ `You
can't spit . . . in the face of law and expect law not to respond.' ”
2
Public protests, of course, are themselves protected by the First
Amendment, and any efforts to restrict them would be subject to
judicial review. But respecting some First Amendment rights is
not a shield for violating others. The State defends the Governor
on the ground that the protests expressed a viewpoint on impor-
tant issues, and that is undoubtedly true, but favoring one view-
point over others is anathema to the First Amendment.
C
Once it is recognized that the directive's treatment of houses
of worship must satisfy strict scrutiny, it is apparent that this
discriminatory treatment cannot survive. Indeed, Nevada does
not even try to argue that the directive can withstand strict
scrutiny.
Having allowed thousands to gather in casinos, the State cannot
claim to have a compelling interest in limiting religious gather-
ings to 50 people—regardless of the size of the facility and
the measures adopted to prevent the spread of the virus. “[A]
law cannot be regarded as protecting an interest of the highest
2
Application 8, and n. 6 (quoting Lochhead, Sisolak, Elec ted Nevada
Officials Discuss Systemic Racism, Reform, Las Vegas Review-Journal
(June 5, 2020), www.reviewjournal.com/news/politics-and-government/nevada/
sisolak-elected-nevada-offcials-discuss-systemic-racism-reform-2045833/).

ORDERS 1049
1042
Alito,
J., dissenting
order . . . when it leaves appreciable damage to that supposedly
v
ital interest unprohibited.” Church of Lukumi, 508 U. S., at 547
(internal quotation marks omitted). And even if the 50-person
limit served a compelling interest, the State has not shown that
public safety could not be protected at least as well by measures
such as those Calvary Chapel proposes to implement.
D
The State's primary defense of the directive's treatment of
houses of worship is based on two decisions of this Court. Quot-
ing certain language in Jacobson v. Massachusetts, 197 U. S. 11
(1905), Nevada argues that “when a state exercises emergency
police powers to enact an emergency public health measure,
courts will uphold it unless (1) there is no real or substantial
relation to public health, or (2) the measures are `beyond all ques-
tion' a `plain[,] palpable [invasion] of rights secured by the funda-
mental law.' ” Response to Application 11 (quoting Jacobson, 197
U. S., at 31).
Even under this test, the directive's discriminatory treatment
would likely fail for the reasons already explained. And in any
event, it is a mistake to take language in Jacobson as the last
word on what the Constitution allows public offcials to do during
the COVID–19 pandemic. Language in Jacobson must be read
in context, and it is important to keep in mind that Jacobson
primarily involved a substantive due process challenge to a local
ordinance requiring residents to be vaccinated for small pox.
3
It
is a considerable stretch to read the decision as establishing the
test to be applied when statewide measures of indefnite duration
are challenged under the First Amendment or other provisions
not at issue in that case.
The State also points to the Court's recent refusal to issue a
temporary injunction against enforcement of a California law that
3
The Court brushed aside Jacobson's claims that the challenged law vio-
lated the Preamble and the spirit of the Constitution. Jacobson, 197 U. S.,
at 22. His claim under the Privileges or Immunities Clause of the Four-
teenth Amendment was doomed by the Slaughter-House Cases, 16 Wall. 36,
76 – 80 (1873), and was not addressed by the Court. Finally, the Court
quickly rejected his equal protection claim, Jacobson, 197 U. S., at 30, which
was based on the law's exemption for children and persons under guardian-
ship, see Commonwealth v. Jacobson, decided with Commonwealth v. Pear,
183 Mass. 242, 248, 66 N. E. 719, 722 (1903).

1050 OCTOBER
TERM, 2019
Gorsuch, J., dissenting 591 U. S.
limited the number of persons allowed to attend church services.
See
South Bay United Pentecostal Church v. Newsom, 590 U. S.
965 (2020). I dissented from that decision, see 966; see also id.,
at 967 (Kavanaugh, J., dissenting), but even if it is accepted, that
case is different from the one now before us. In South Bay, a
church relied on the fact that the California law treated churches
less favorably than certain other facilities, such as factories, of-
fces, supermarkets, restaurants, and retail stores. But the law
was defended on the ground that in these facilities, unlike in
houses of worship, “people neither congregate in large groups
nor remain in close proximity for extended periods.” Id., at 966
(Roberts, C. J., concurring). That cannot be said about the facil-
ities favored in Nevada. In casinos and other facilities granted
preferential treatment under the directive, people congregate in
large groups and remain in close proximity for extended periods.
E
An injunction pending appeal is warranted in this case. Cal-
vary Chapel's First Amendment claims are very likely to succeed.
Indeed, it can be said that its “legal rights . . . are indisputably
clear,” Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301,
1303 (1993) (Rehnquist, C. J., in chambers) (internal quotation
marks omitted), and the equities also favor Calvary Chapel. Pre-
venting congregants from worshipping will cause irreparable
harm, and the State has made no effort to show that Calvary
Chapel's plans would create a serious public health risk.
***
I would issue an injunction barring the State, pending appeal,
from interfering with worship services conducted at Calvary
Chapel in accordance with its stated plan and the general face-
mask requirement. I therefore respectfully dissent.
Justice Gorsuch, dissenting.
This is a simple case. Under the Governor's edict, a 10-screen
“multiplex” may host 500 moviegoers at any time. A casino, too,
may cater to hundreds at once, with perhaps six people huddled
at each craps table here and a similar number gathered around
every roulette wheel there. Large numbers and close quarters

ORDERS 1051
1042
Ka
vanaugh, J., dissenting
are fne in such places. But churches, synagogues, and mosques
are
banned from admitting more than 50 worshippers—no matter
how large the building, how distant the individuals, how many
wear face masks, no matter the precautions at all. In Nevada, it
seems, it is better to be in entertainment than religion. Maybe
that is nothing new. But the First Amendment prohibits such
obvious discrimination against the exercise of relig ion. The
world we inhabit today, with a pandemic upon us, poses unusual
challenges. But there is no world in which the Constitution per-
mits Nevada to favor Caesars Palace over Calvary Chapel.
Justice Kavanaugh, dissenting.
I join Justice Alito's dissent in full and respectfully add these
further comments.
Under its current reopening plan, Nevada allows restaurants,
bars, casinos, and gyms to grant entrance to up to 50% of their
total occupancy limit—no matter how many people that may be.
For example, a casino with a 500-person occupancy limit may let
in up to 250 people. By contrast, places of worship may only
take in a maximum of 50 people, without exception, regardless of
the occupancy cap. So unlike a casino next door, a church with
a 500-person occupancy limit may let in only 50 people, not 250
people. Nevada has offered no persuasive justifcation for that
overt discrimination against places of worship. The risk of
COVID–19 transmission is at least as high at restaurants, bars,
casinos, and gyms as it is at religious services. Indeed, people
congregating in restaurants, bars, casinos, and gyms often linger
at least as long as they do at religious services. And given the
safety measures that Calvary Chapel and other places of worship
are following—including social distancing, mask wearing, and cer-
tain additional voluntary measures—it is evident that people in-
teract with others at restaurants, bars, casinos, and gyms at least
as closely as they do at religious services.
In my view, Nevada's discrimination against religious services
violates the Constitution. To be clear, a State's closing or reopen-
ing plan may subject religious organizations to the same limits as
secular organizations. And in light of the devastating COVID–
19 pandemic, those limits may be very strict. But a State may
not impose strict limits on places of worship and looser limits on

1052 OCTOBER
TERM, 2019
Kavanaugh, J., dissenting 591 U. S.
restaurants, bars, casinos, and gyms, at least without suffcient
justi
fcation for the differential treatment of religion. As I will
explain, Nevada has thus far failed to provide a suffcient justif-
cation, and its current reopening plan therefore violates the
First Amendment.
In Part I, I will explain how this case fts into the Court's
broader religion jurisprudence. In Part II, I will explain why
Nevada's treatment of religious organizations is unconstitutional
under the Court's precedents.
I
Religion cases are among the most sensitive and challenging in
American law. Diffculties can arise at the outset because the
litigants in religion cases often disagree about how to characterize
a law. They may disagree about whether a law favors religion
or discriminates against religion. They may disagree about
whether a law treats religion equally or treats religion differently.
They may disagree about what it means for a law to be neutral
toward religion.
The defnitional battles over what constitutes favoritism, dis-
crimination, equality, or neutrality can infuence, if not decide, the
outcomes of religion cases. But the parties to religion cases and
the judges deciding those cases often do not share a common
vocabulary or common background principles. And that discon-
nect can muddy the analysis, build resentment, and lead to liti-
gants and judges talking past one another.
In my view, some of the confusion and disagreement can be
averted by frst identifying and distinguishing four categories of
laws: (1) laws that expressly discriminate against religious organi-
zations; (2) laws that expressly favor religious organizations; (3)
laws that do not classify on the basis of religion but apply to
secular and religious organizations alike; and (4) laws that ex-
pressly treat religious organizations equally to some secular orga-
nizations but better or worse than other secular organizations.
As I will explain, this case involving Nevada's reopening plan
falls into the fourth category.
First are laws that expressly discriminate against religious or-
ganizations because of religion. The recent Espinoza case fell
into that category. Espinoza v. Montana Dept. of Revenue, 591
U. S. 464 (2020). The State of Montana provided tax credits to
those who contributed to private school scholarship organizations.
But there was a signifcant catch: Families eligible for scholarship

ORDERS 1053
1042
Ka
vanaugh, J., dissenting
funds could use those funds only at secular private schools, not
rel
igious private schools. Cases like that are straightforward ex-
amples of religious discrimination. And as a general rule, laws
that discriminate against religion are, in the Court's words, “odi-
ous to our Constitution.” Espinoza, id., at 489 (internal quota-
tion marks omitted); see Trinity Lutheran Church of Columbia,
Inc. v. Comer, 582 U. S. 449 (2017); Good News Club v. Milford
Central School, 533 U. S. 98 (2001); Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U. S. 819 (1995); Larson v. Valente,
456 U. S. 228 (1982); McDaniel v. Paty, 435 U. S. 618, 629 (1978)
(Brennan, J., concurring in judgment); see also Murphy v. Collier,
587 U. S. 901 (2019) (Kavanaugh, J., concurring in grant of appli-
cation for stay); cf. Church of Lukumi Babalu Aye, Inc. v. Hia-
leah, 508 U. S. 520 (1993).
Second are laws that expressly favor religious organizations
over secular organizations. Examples include cases where a leg-
islature affords religious organizations certain accommodations,
exemptions, or benefts that are not available to secular organiza-
tions. The legislature might, for example, grant religious organi-
zations a property tax exemption that is not available to secular
organizations. Cf. Walz v. Tax Comm'n of City of New York, 397
U. S. 664 (1970). Or the legislature might authorize accommoda-
tions for certain religious individuals (but not secular individuals)
that relieve them from the burdens of otherwise-applicable laws,
such as the draft. See Gillette v. United States, 401 U. S. 437
(1971). Those kinds of accommodations or exemptions can some-
times trigger Establishment Clause challenges because of the ap-
parent favoritism of religion. See generally American Legion v.
Ame r i can Hum an ist Assn., 588 U. S. 29, 68 (2019) (Kava-
naugh, J., concurring); see also Cutter v. Wilkinson, 544 U. S.
709 (2005); Board of Ed. of Kiryas Joel Village School Dist. v.
Grumet, 512 U. S. 687, 722 (1994) (Kennedy, J., concurring in judg-
ment); Corporation of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987).
Third are laws that apply to religious and secular organizations
alike without making any classifcation on the basis of religion.
For example, a city fre code may require sprinklers in all build-
ings that can hold more than 100 people. A law like that would
cover buildings owned by religious organizations and buildings
owned by secular organizations. Those kinds of laws on their
face present no impermissible discrimination or favoritism.

1054 OCTOBER
TERM, 2019
Kavanaugh, J., dissenting 591 U. S.
To be sure, those kinds of laws, although not differentiating
between
religious and secular organizations, can still sometimes
impose substantial burdens on religious exercise. If so, a reli-
gious organization may seek an exemption in court (if not also in
the legislature) to the extent available under federal or state law
and permissible under the Establishment Clause. See, e. g., Our
Lady of Guadalupe School v. Morrissey-Berru, 591 U. S. 732
(2020); Gonzales v. O Centro Espírita Benefcente União do Vege-
tal, 546 U. S. 418 (2006). Or a religious organization may contend
that the facially neutral law was actually motivated by animus
against religion and is unconstitutional on that ground. See Lu-
kumi, 508 U. S. 520.
Fourth are laws—like Nevada's in this case—that supply no
criteria for government benefts or action, but rather divvy up
organizations into a favored or exempt category and a disfavored
or non-exempt category. Those laws provide benefts only to or-
ganizations in the favored or exempt category and not to organiza-
tions in the disfavored or non-exempt category.
For example, consider a zoning law that places some secular
organizations (apartment buildings, small retail businesses, res-
taurants, banks, etc.) in a favored or exempt zoning category, and
places some secular organizations (offce buildings, large retail
businesses, movie theaters, music venues, etc.) in a disfavored or
non-exempt zoning category. Suppose that religious properties
arguably could be considered similar to some of the secular prop-
erties in both categories. What, then, are the constitutional lim-
its and requirements with respect to how the legislature may
categorize religious organizations?
In those circumstances, the Court's precedents make clear that
the legislature may place religious organizations in the favored
or exempt category rather than in the disfavored or non-exempt
category without causing an Establishment Clause problem. See,
e. g., Walz, 397 U. S., at 696 (opinion of Harlan, J.) (“[T]he critical
question is whether the circumference of legislation encircles a
class so broad that it can be fairly concluded that religious institu-
tions could be thought to fall within the natural perimeter”);
Texas Monthly, Inc. v. Bullock, 489 U. S. 1, 14 (1989) (plurality
opinion) (expressing approval of subsidies “conferred upon a wide
array of nonsectarian groups as well as religious organizations in
pursuit of some legitimate secular end”); Concerned Citizens of
Carderock v. Hubbard, 84 F. Supp. 2d 668 (Md. 2000) (State may

ORDERS 1055
1042
Ka
vanaugh, J., dissenting
place religious organizations in favored zoning category along
w
ith some secular organizations).
The converse free-exercise or equa l-treatment questi on is
whether the legislature is required to place religious organizations
in the favored or exempt category rather than in the disfavored
or non-exempt category. The Court's free-exercise and equal-
treatment precedents also supply an answer to that question:
Unless the State provides a suffcient justifcation otherwise, it
must place religious organizations in the favored or exempt
category. See Laycock, The Remnants of Free Exercise, 1990
S. Ct. Rev. 1, 49–50 (explaining how this Court's precedents grant
“something analogous to most-favored nation status” to religious
organizations).
In Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990), for example, the Court explained that
“where the State has in place a system of individual exemptions,
it may not refuse to extend that system to cases of religious
hardship without compelling reason.” Id., at 884 (internal quo-
tation marks omitted; emphasis added); see also Lukumi, 508
U. S., at 537–538. Likewise, then-Judge Alito stated that the
First Amendment required a police department to exempt Sunni
Muslims from its no-beard policy because the police department
made “exemptions from its policy for secular reasons and has not
offered any substantial justifcation for refusing to provide simi-
lar treatment for offcers who are required to wear beards for
religious reasons.” Fraternal Order of Police Newark Lodge
No. 12 v. Newark, 170 F. 3d 359, 360 (CA3 1999) (emphasis added).
Put simply, under the Court's religion precedents, when a law
on its face favors or exempts some secular organizations as op-
posed to religious organizations, a court entertaining a constitu-
tional challenge by the religious organizations must determine
whether the State has suffciently justifed the basis for the
distinction.
To be clear, the Court's precedents do not require that religious
organizations be treated more favorably than all secular organi-
zations. Rather, the First Amendment requires that religious
organizations be treated equally to the favored or exempt secu-
lar organizations, unless the State can suffciently justify the
differentiation.
Stated otherwise, in these kinds of cases, the Court's religion
precedents require a basic two-step inquiry. First, does the law

1056 OCTOBER
TERM, 2019
Kavanaugh, J., dissenting 591 U. S.
create a favored or exempt class of organizations and, if so, do
rel
igious organizations fall outside of that class? That threshold
question does not require judges to decide whether a church is
more akin to a factory or more like a museum, for example.
Rather, the only question at the start is whether a given law on
its face favors certain organizations and, if so, whether religious
organizations are part of that favored group. If the religious
organizations are not, the second question is whether the govern-
ment has provided a suffcient justifcation for the differential
treatment and disfavoring of religion. Cf. Smith, 494 U. S., at
884.
In seeking to justify the differential treatment in those kinds
of cases, it is not enough for the government to point out that
other secular organizations or individuals are also treated unfa-
vorably. The point “is not whether one or a few secular analogs
are regulated. The question is whether a single secular analog
is not regulated.” Laycock & Collis, Generally Applicable Law
and the Free Exercise of Religion, 95 Neb. L. Rev. 1, 22 (2016).
To that end, the government must articulate a suffcient justifca-
tion for treating some secular organizations or individuals more
favorably than religious organizations or individuals. See Smith,
494 U. S., at 884. That point is subtle but absolutely critical.
And if that point is not fully understood, then cases of this kind
will be wrongly decided.
II
I turn then to analyzing Nevada's rules under the Court's prece-
dents. As Justice Alito explains in his dissent, Nevada has
now had more than four months to respond to the initial COVID–
19 crisis and adjust its line-drawing as circumstances change.
Yet Nevada is still discriminating against religion. Nevada ap-
plies a strict 50-person attendance cap to religious worship
services, but applies a looser 50% occupancy cap to secular organi-
zations like restaurants, bars, casinos, and gyms.
Nevada has gestured at two possible justifcations for that
discrimination: public health and the economy. But neither argu-
ment is persuasive on this record.
First is the State's public health rationale. Nevada undoubt-
edly has a compelling interest in combating the spread of COVID–
19 and protecting the health of its citizens. But it does not have
a persuasive public health reason for treating churches differently
from restaurants, bars, casinos, and gyms. Calvary Chapel is

ORDERS 1057
1042
Ka
vanaugh, J., dissenting
happy to abide by the same 50% occupancy cap or some stricter
across-the-board
standard, as the State sees ft, so long as the
same standard applies to those secular businesses. And the
Church has committed to social distancing, mask requirements,
and certain voluntary safety measures.
The State has not explained why a 50% occupancy cap is good
enough for secular businesses where people congregate in large
groups or remain in close proximity for extended periods—such
as at restaurants, bars, casinos, and gyms—but is not good enough
for places of worship. Again, it does not suffce to point out that
some secular businesses, such as movie theaters, are subject to
the lesser of a 50-person or 50% occupancy cap. The legal ques-
tion is not whether religious worship services are all alone in a
disfavored category, but why they are in the disfavored category
to begin with. See Smith, 494 U. S., at 884. And Nevada has
not advanced a suffcient public health rationale for that decision.
To reiterate, the State has substantial room to draw lines, espe-
cially in an emergency or crisis. But Nevada has not demon-
strated that public health justifes taking a looser approach with
restaurants, bars, casinos, and gyms and a stricter approach with
places of worship.
Second is the State's economic rationale. The State wants to
jump-start business activity and preserve the economic well-being
of its citizens. The State has loosened restrictions on restau-
rants, bars, casinos, and gyms in part because many Nevada jobs
and livelihoods, as well as other connected Nevada businesses,
depend on those restaurants, bars, casinos, and gyms being open
and busy. It is understandable for the State to balance public
health concerns against individual economic hardship. Almost
every State and municipality in America is struggling with that
balance. After all, if preventing transmission of COVID–19 were
the sole concern, a State would presumably order almost all of
its businesses to stay closed indefnitely. But the economic devas-
tation and the economic, physical, intellectual, and psychological
harm to families and individuals that would ensue (and has al-
ready ensued, to some extent) requires States to make tradeoffs
that can be unpleasant to openly discuss.
With respect to those tradeoffs, however, no precedent suggests
that a State may discriminate against religion simply because a
religious organization does not generate the economic benefts
that a restaurant, bar, casino, or gym might provide. Nevada's

1058 OCTOBER
TERM, 2019
Kavanaugh, J., dissenting 591 U. S.
rules refect an implicit judgment that for-proft assemblies are
i
mportant and religious gatherings are less so; that moneymaking
is more important than faith during the pandemic. But that ra-
tionale “devalues religious reasons” for congregating “by judging
them to be of lesser import than nonreligious reasons,” in viola-
tion of the Constitution. Lukumi, 508 U. S., at 537–538. The
Constitution does not tolerate discrimination against religion
merely because religious services do not yield a proft.
More broadly, the State insists that it is in the midst of an
emergency and that it should receive deference from the courts
and not be bogged down in litigation. If the courts simply en-
force the constitutional prohibition against religious discrimina-
tion, however, the foodgates will not open. I agree that courts
should be very deferential to the States' line-drawing in opening
businesses and allowing certain activities during the pandemic.
For example, courts should be extremely deferential to the States
when considering a substantive due process claim by a secular
business that it is being treated worse than another business.
Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under
the Constitution, state and local governments, not the federal
courts, have the primary responsibility for addressing COVID–
19 matters such as quarantine requirements, testing plans, mask
mandates, phased reopenings, school closures, sports rules, adjust-
ment of voting and election procedures, state court and correc-
tional institution practices, and the like.
But COVID–19 is not a blank check for a State to discriminate
against religious people, religious organizations, and religious
services. There are certain constitutional red lines that a State
may not cross even in a crisis. Those red lines include racial
discrimination, religious discrimination, and content-based sup-
pression of speech. This Court's history is littered with unfortu-
nate examples of overly broad judicial deference to the govern-
ment when the government has invoked emergency powers and
asserted crisis circumstances to override equal-treatment and
free-speech principles. The court of history has rejected those
jurisprudential mistakes and cautions us against an unduly defer-
ential judicial approach, especially when questions of racial dis-
crimination, religious discrimination, or free speech are at stake.
Finally, the State relies on the Court's recent temporary injunc-
tion decision in South Bay United Pentecostal Church v. Newsom,
590 U. S. 965 (2020). There, the Court considered a California

ORDERS 1059
1042
Ka
vanaugh, J., dissenting
limitation on crowd size at religious services. California treated
rel
igious organizations better than some secular organizations,
like movie theaters, but worse than other secular organizations,
such as restaurants, supermarkets, retail stores, pharmacies, hair
salons, offces, factories, and the like. In my view, the State of
California's explanation, at least on that record, did not persua-
sively distinguish religious services from several of the favored
secular organizations, particularly restaurants and supermarkets.
But the Court ultimately denied the church's request for an emer-
gency injunction. In his concurrence, The Chief Justice appro-
priately emphasized both the high standard for obtaining injunc-
tive relief in this Court and the ongoing and rapidly changing
public health emergency. The Chief Justice also noted that
the favored secular activities did not involve people who “congre-
gate in large groups” or “remain in close proximity for extended
periods.” Id., at 966 (opinion concurring in denial of application
for injunctive relief ).
I continue to think that the restaurants and supermarkets at
issue in South Bay (and especially the restaurants) pose similar
health risks to socially distanced religious services in terms of
proximity to others and duration of visit. I suspect that many
who have frequented all three kinds of establishments in recent
weeks and months would agree. So I continue to respectfully
disagree with South Bay.
But accepting South Bay as a precedent, this case is much
different because it involves bars, casinos, and gyms. Nevada's
COVID–19-based health distinction between (i) bars, casinos, and
gyms on the one hand, and (ii) religious services on the other
hand, defes common sense. As I see it, the State cannot plausi-
bly maintain that those large secular businesses are categorically
safer than religious services, or that only religious services—and
not bars, casinos, and gyms—entail people congregating in large
groups or remaining in close proximity for extended periods of
time. In any event, the State has not yet supplied a suffcient
justifcation for its counterintuitive distinction.
***
The Constitution “protects religious observers against une-
qual treatment.” Trinity Lutheran, 582 U. S., at 458 (internal
quotation marks and alterations omitted). Nevada's 50-person
attendance cap on rel ig i ous worsh ip serv ices puts pray i ng

1060 OCTOBER
TERM, 2019
July 24, 30, 2020 591 U. S.
at churches, synagogues, temples, and mosques on worse footing
than
eating at restaurants, drinking at bars, gambling at casinos,
or biking at gyms. In other words, Nevada is discriminating
against religion. And because the State has not offered a suff-
cient justifcation for doing so, that discrimination violates the
First Amendment. I would grant the Church's application for a
temporary injunction. I respectfully dissent.
July 30, 2020
Miscellaneous Order
No. 20A18. Little, Governor of Idaho, et al. v. Reclaim
Idaho et al. D. C. Idaho. Application for stay, presented to
Justice Kagan, and by her referred to the Court, granted. The
District Court's June 23, June 26, and June 30, 2020, orders are
stayed pending disposition of the appeal in the United States
Court of Appeals for the Ninth Circuit and disposition of the
petition for writ of certiorari, if such writ is timely sought.
Should the petition for writ of certiorari be denied, this stay shall
terminate automatically. In the event the petition for writ of
certiorari is granted, the stay shall terminate upon the sending
down of the judgment of this Court.
Chief Justice Roberts, with whom Justice Alito, Justice
Gorsuch, and Justice Kavanaugh join, concurring.
The District Court in this case ordered Idaho either to certify
an initiative for inclusion on the ballot without the requisite num-
ber of signatures, or to allow the initiative sponsor additional
time to gather digital signatures through an online process of
solicitation and submission never before used by the State.
When the State chose neither option, the District Court author-
ized the sponsor to join with a third-party vendor to develop and
implement a new online system over the course of nine days.
The Ninth Circuit subsequently denied the State's request for a
stay pending appeal, and Idaho now seeks the same relief from
this Court.
Under the well-settled standard for this form of relief, the State
must show (1) a “reasonable probability” that this Court will
grant certiorari, (2) a “fair prospect” that the Court will reverse

ORDERS 1061
1060
Roberts,
C. J., concurring
the judgment below, and (3) a “likelihood that irreparable harm
w
ill result from the denial of a stay.” Hollingsworth v. Perry,
558 U. S. 183, 190 (2010) (per curiam). In my view, the State
has satisfed each requirement for a stay.
First, the Court is reasonably likely to grant certiorari to re-
solve the split presented by this case on an important issue of
election administration. States retain “considerable leeway to
protect the integrity and reliability of the initiative process.”
Buckley v. American Constitutional Law Foundation, Inc., 525
U. S. 182, 191 (1999). In exercising this discretionary authority,
the States depend on clear and administrable guidelines from the
courts. Yet the Circuits diverge in fundamental respects when
presented with challenges to the sort of state laws at issue here.
According to the Sixth and Ninth Circuits, the First Amendment
requires scrutiny of the interests of the State whenever a neutral,
procedural regulation inhibits a person's ability to place an initia-
tive on the ballot. See Thompson v. DeWine, 959 F. 3d 804, 808
(CA6 2020) (per curiam); Angle v. Miller, 673 F. 3d 1122, 1133
(CA9 2012). Other Circuits, by contrast, have held that regula-
tions that may make the initiative process more challenging
do not implicate the First Amendment so long as the State does
not restrict political discussion or petition circulation. See, e. g.,
Jones v. Markiewicz-Qualkinbush, 892 F. 3d 935, 938 (CA7 2018);
Initiative and Referendum Institute v. Walker, 450 F. 3d 1082,
1099–1100 (CA10 2006) (en banc); Dobrovolny v. Moore, 126 F. 3d
1111, 1113 (CA8 1997). Since the onset of the pandemic, the Cir-
cuits have applied their conficting frameworks to reach predict-
ably contrary conclusions as to whether and to what extent States
must adapt the initiative process to account for new obstacles to
collecting signatures. Compare, e. g., Miller v. Thurston, 967
F. 3d 727, 741 (CA8 2020), and Morgan v. White, 964 F. 3d 649,
652 (CA7 2020) (per curiam), with, e. g., SawariMedia, LLC v.
Whitmer, 963 F. 3d 595, 597 (CA6 2020).
Second, there is a fair prospect that the Court will set aside
the District Court order. INS v. Legalization Assistance Project
of Los Angeles County Federation of Labor, 510 U. S. 1301, 1304
(1993) (O'Connor, J., in chambers). This is not a case about the
right to vote, but about how items are placed on the ballot in the
frst place. Nothing in the Constitution requires Idaho or any

1062 OCTOBER
TERM, 2019
Roberts, C. J., concurring 591 U. S.
other State to provide for ballot initiatives. See Meyer v. Grant,
486
U. S. 414, 424 (1988). And the claims at issue here challenge
the application of only the most typical sort of neutral regulations
on ballot access. Even assuming that the state laws at issue
implicate the First Amendment, such reasonable, nondiscretionary
restrictions are almost certainly justifed by the important regula-
tory interests in combating fraud and ensuring that ballots are
not cluttered with initiatives that have not demonstrated suff-
cient grassroots support. See Buckley, 525 U. S., at 204–205.
The State's established verifcation procedure is no empty formal-
ity. In Idaho's largest county, clerks reject about 30 to 40 percent
of signatures at this stage.
Third, the State is likely to suffer irreparable harm absent a
stay. Right now, the preliminary injunction disables Idaho from
vindicating its sovereign interest in the enforcement of initiative
requirements that are likely consistent with the First Amend-
ment. See Abbott v. Perez, 585 U. S. 579, 602, and n. 17 (2018).
The dissent does not regard the burden on the State as signifcant,
but in my view that judgment fails to appreciate that the initia-
tive process is just one aspect of a primary and general election
system facing a wide variety of challenges in the face of the
pandemic. The Governor and Secretary of State here, for exam-
ple, have suspended some limits on absentee voting and processed
requests for absentee ballots through online channels. In addi-
tion to preparing for elections with a record number of absentee
ballot requests, the county clerks must now also learn, under
extraordinary time pressures, how to verify digital signatures
through an entirely new system mandated by the District Court.
The District Court did not accord suffcient weight to the State's
discretionary judgments about how to prioritize limited state re-
sources across the election system as a whole.
The pending appeal in the Ninth Circuit does not eliminate the
present strain imposed by this structural injunction on the time
and resources of state and local offcials, and the costs to the
State will continue to add up over the coming weeks. Nor does
the balance of equities counsel in favor of denying relief at this
point. See Hollingsworth, 558 U. S., at 190. While a stay may
preclude this particular initiative from appearing on the ballot
this November, that consequence is attributable at least in part
to Reclaim Idaho, which “delayed unnecessarily” its pursuit of
relief until more than a month after the deadline for submitting

ORDERS 1063
1060
Sotoma
yor, J., dissenting
signatures. Fishman v. Schaffer, 429 U. S. 1325, 1330 (1976)
(Marsha
ll, J., in chambers); see also Benisek v. Lamone, 585 U. S.
155, 159, 160 (2018) (per curiam). Finally, the dissent is wrong to
criticize this Court for supposedly offering the “frst view” on this
matter. The District Court and the Court of Appeals have already
acted on the State's request for a stay, which is now before us.
“A preliminary injunction is an extraordinary remedy.” Winter
v. Natural Resources Defense Council, Inc., 555 U. S. 7, 24 (2008).
And the injunction here is all the more extraordinary given the
extent to which the District Court recast the initiative process.
See Lewis v. Casey, 518 U. S. 343, 349 (1996). No one has over-
looked that the State bears an “especially heavy burden” in justi-
fying a stay pending its appeal to the Ninth Circuit. Packwood
v. Senate Select Comm. on Ethics, 510 U. S. 1319, 1320 (1994)
(Rehnquist, C. J., in chambers). But in my view that burden has
been met, especially in light of the transformative and intrusive
nature of this preliminary injunction.
Justice Sotomayor, with whom Justice Ginsburg joins,
dissenting.
Yet again, this Court intervenes to grant a stay pending appeal,
in this case less than two weeks before the Court of Appeals for
the Ninth Circuit is poised to hear an expedited appeal on a
preliminary injunction entered by the District Court.
1
That in-
junction requires the State of Idaho to accommodate delays and
risks introduced by the COVID–19 pandemic by extending the
deadline for accepting ballot-initiative signatures and permitting
digital collection of signatures. The State claims that it requires
immediate intervention from this Court because, absent a stay, it
must expend time and resources verifying digital signatures in
advance of the extended signature-submission deadline.
1
Although an applicant seeking a stay pending appeal “has an especially
heavy burden,” Packwood v. Senate Select Comm. on Ethics, 510 U. S. 1319,
1320 (1994) (Rehnquist, C. J., in chambers), this Court has begun to grant
such stays with notable frequency. See, e. g., Department of Homeland Se-
curity v. New York, 589 U. S. 1173 (2020); Republican National Committee
v. Democratic National Committee, 589 U. S. 423 (2020) (per curiam); Barr
v. Lee, 591 U. S. 979 (2020) (per curiam); Barr v. Purkey, 591 U. S. 1034
(2020); Merrill v. People First of Alabama, 591 U. S. 1024 (2020); Wolf v.
Cook County, 589 U. S. 1190 (2020); Henry Schein, Inc. v. Archer & White
Sales, Inc., 589 U. S. 1170 (2020). It is beginning to look like such an appli-
cant has nearly no burden at all.

1064 OCTOBER
TERM, 2019
Sotomayor, J., dissenting 591 U. S.
But the equities do not favor the State, at least not yet. The
Ni
nth Circuit will hear Idaho's case on August 11, almost a month
before Idaho's Secretary of State must certify ballot questions to
county clerks (on September 7), and almost three months before
election day. If the District Court's preliminary injunction turns
out to have been improper, Idaho will still have time to omit
respondents' initiative from the November ballot. Respondents,
on the other hand, are in a far more precarious position. Cf.
Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical
Ins. Plan, 501 U. S. 1301, 1304–1305 (1991) (Scalia, J., in chambers)
(even where an injunction bars enforcement of a State's laws,
“sound equitable discretion” requires balancing harms to stay ap-
plicant against harms to respondent). The stay granted today
puts a halt to their signature-collection efforts, meaning that even
if respondents ultimately prevail on appeal, it will be extremely
diffcult, if not impossible, for them to collect enough qualifying
signatures by any reasonable deadline for the November ballot.
2
In other words, the delay occasioned by this Court's stay likely
dooms to mootness respondents' First Amendment claims before
any appellate court has had the chance to consider their merits
(and, indeed, before this Court has had the chance to consider
any potential petition for certiorari).
To be sure, as the concurrence points out, the District Court's
preliminary injunction burdens Idaho's county clerks with the
task of verifying digital signatures during an already busy elec-
tion year. But Idaho's undeniable interest in vacatur of the pre-
liminary injunction should be considered in the frst instance by
the Ninth Circuit, which must weigh the State's temporary ex-
penditure of resources against the signifcant First Amendment
questions raised by respondents. It is premature to assume,
based only on that court's (necessarily quick) resolution of Idaho's
emergency motion for a stay, that the Ninth Circuit will strike
that balance incorrectly upon consideration of the parties' full
briefng and oral argument.
2
As the concurrence notes, the fact that respondents are short on time is
attributable, at least in part, to their delay in fling suit. But given the
diffculties of securing legal counsel during a pandemic, I cannot agree with
The Chief Justice’s conclusion that their delay was “ `unnecessar[y]. ' ”
Ante, at 1062–1063 (quoting Fishman v. Schaffer, 429 U. S. 1325, 1330 (1976)
(Marshall, J., in chambers) (concluding that applicants seeking to challenge a
years' old statute had “delayed unnecessarily in commencing . . . suit”)).

ORDERS 1065
591 U. S.
J
uly 30, 31, 2020
Nonetheless, based on only the chance that Idaho will not pre-
vai
l on appeal, that Idaho will seek certiorari in this Court, and
that this Court will grant that petition and reverse the (hypothet-
ical) judgment below, this Court takes the extraordinary step of
staying the District Court's preliminary injunction pending ap-
peal. In doing so, the Court dispenses liberally a “rare and ex-
ceptional” remedy, one that this Court traditionally has granted
“only `upon the weightiest considerations,' ” merely to address
alleged harms that would exist in the mine-run of similar cases.
Fargo Women's Health Organization v. Schafer, 507 U. S. 1013,
1014 (1993) (O'Connor, J., concurring in denial of application)
(quoting O'Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d 615,
616 (1960) (Harlan, J., in chambers)). And it deprives itself of
the beneft of the appellate court's full consideration and review
of the important constitutional issues at the heart of this case.
See Wolf v. Cook County, 589 U. S. 1190, 1195 (2020) (Sotomayor,
J., dissenting from grant of stay). Especially given that the
Ninth Circuit has signaled its intent to act expeditiously, there is
no cause for this Court to usurp the Court of Appeals' responsibil-
ity “to review the District Court's decision . . . in the frst in-
stance.” McLane Co. v. EEOC, 581 U. S. 72, 85 (2017).
Today, by jumping ahead of the Court of Appeals, this Court
once again forgets that it is “ `a court of review, not of frst view,' ”
ibid., and undermines the public's expectation that its highest
court will act only after considered deliberation. I respectfully
dissent from the grant of stay.
July 31, 2020
Miscellaneous Orders
No. 19A60. Trump, President of the United States,
et al. v. Sierra Club et al. D. C. N. D. Cal. Motion to lift
stay denied.
Justice Breyer, with whom Justice Ginsburg, Justice
Sotomayor, and Justice Kagan join, dissenting.
Just over a year ago, I suggested “a straightforward way” to
avoid irreparable harm to the parties in this litigation: stay the
District Court's injunction “only to the extent” that it “prevents
the Government from fnalizing [relevant] contracts or taking
other preparatory administrative action, but leave [the injunction]

1066 OCTOBER
TERM, 2019
July 31, August 3, 2020 591 U. S.
in place insofar as it precludes the Government from disbursing
those
funds or beginning construction.” Trump v. Sierra Club,
588 U. S. 930, 932 (2019) (opinion concurring in part and dissenting
in part from grant of stay).
Now, the Government has apparently fnalized its contracts,
avoiding the irreparable harm it claimed in frst seeking a stay.
The Court's decision to let construction continue nevertheless, I
fear, may “operat[e], in effect, as a fnal judgment.” Ibid. I
would therefore lift the Court's stay of the District Court's
injunction.
August 3, 2020
Miscellaneous Order
No. 19A1058. Lopez Bello et al. v. Stansell et al. D. C.
S. D. Fla. Application for stay, addressed to Justice Soto-
mayor, and by her referred to the Court, denied.
Rehearing Denied
No. 19–682. Kelsay v. Ernst, 590 U. S. 942;
No. 19–737. Douse v. United States et al., 590 U. S. 970;
No. 19–1021. Jessop et al. v. City of Fresno, California,
et al., 590 U. S. 955;
No. 19–1095. Beggs et ux. v. Story et al., 590 U. S. 943;
No. 19 –1122. Hong Tang v. University of Baltimore
et al., 590 U. S. 943;
No. 19–1128. Mendes Da Costa v. Pereira et al., 590
U. S. 944;
No. 19–1164. Johnson v. Workers’ Compensation Appeals
Board et al., 590 U. S. 959;
No. 19 –1238. Watson v. Mc Carthy, Secretary of the
Army, 590 U. S. 960;
No. 19–1243. Armstrong v. Wilson County, North Caro-
lina, et al., 591 U. S. 1004;
No. 19–1245. Kwushue v. United States, 590 U. S. 960;
No. 19–5921. Montgomery v. United States, 590 U. S. 965;
No. 19–7050. In re Rosa, 589 U. S. 1201;
No. 19–7127. Tomlin v. Patterson, Warden, 590 U. S. 971;
No. 19–7401. Hockaday v. Christner et al., 589 U. S. 1296;
No. 19–7612. Sims v. Wells Fargo Bank, N. A., et al., 590
U S. 908;
No. 19 –7641. Yusong Gong v. University of Michigan
et al., 590 U. S. 908;

ORDERS 1067
591 U. S.
A
ugust 3, 2020
No. 19–7690. Short v. Superintendent, State Correc-
tional
Institution at Greensburg, et al., 589 U. S. 1299;
No. 19–7691. In re Starks, 590 U. S. 903;
No. 19–7717. Wilson v. Inch, Secretary, Florida Depart-
ment of Corrections, 590 U. S. 909;
No. 19–7721. Parsons v. McDaniel et al., 590 U. S. 924;
No. 19–7725. Conrad v. United States, 590 U. S. 909;
No. 19–7728. English v. Energy Future Holdings Corp.
et al., 590 U. S. 909;
No. 19–7737. Wolfe v. United States, 589 U. S. 1288;
No. 19–7858. Ballard v. Clark, Superintendent, State
Correctional Institution at Albion, et al., 590 U. S. 911;
No. 19–7888. Banks v. Wafe House, Inc., 590 U. S. 946;
No. 19–7897. Webster v. CorVel Enterprise Co., Inc.,
et al., 590 U. S. 932;
No. 19–7906. Osborne v. Georgiades, 590 U. S. 946;
No. 19–7925. O’Rourke v. Lashbrook, Warden, 590 U. S.
946;
No. 19–7936. Zavaglia v. Boston University School of
Medicine, 590 U. S. 947;
No. 19–7937. Yaney et al. v. Mason et al., 590 U. S. 947;
No. 19–8001. Vinarov v. CitiMortgage, Inc., 590 U. S. 948;
No. 19 – 8012. Drevaleva v. Alameda Health System
et al., 590 U. S. 948;
No. 19–8167. Talbert v. Carney et al., 590 U. S. 973;
No. 19–8171. Dawson v. Bank of New York Mellon et al.,
590 U. S. 950;
No. 19–8172. Carson v. United States, 590 U. S. 934;
No. 19–8180. M. H. v. Indiana Department of Child Serv-
ices, 590 U. S. 973;
No. 19–8248. Wilmore v. United States, 590 U. S. 963;
No. 19–8284. In re Young, 590 U. S. 958;
No. 19–8311. Dalen v. Federal National Mortgage Asso-
ciation et al., 590 U. S. 982; and
No. 19–8316. Troy-McKoy v. New York City Department
of Parks and Recreation, 590 U. S. 963. Petitions for rehear-
ing denied.
No. 19–8156. Stancu v. Hyatt Corp., 590 U. S. 976. Petition
for rehearing denied. Justice Breyer took no part in the con-
sideration or decision of this petition.

1068 OCTOBER
TERM, 2019 591 U. S.
August 5, 2020
M
iscellaneous Order
No. 20A19. Barnes, Sheriff, Orange County, California,
et al. v. Ahlman et al. D. C. C. D. Cal. Application for stay,
presented to Justice Kagan, and by her referred to the Court,
granted, and the District Court's May 26, 2020, order granting
preliminary injunction is stayed pending disposition of the appeal
in the United States Court of Appeals for the Ninth Circuit and
disposition of the petition for writ of certiorari, if such writ is
timely sought. Should the petition for writ of certiorari be de-
nied, this stay shall terminate automatically. In the event the
petition for writ of certiorari is granted, the stay shall terminate
upon the sending down of the judgment of this Court. Justice
Breyer and Justice Kagan would deny the application.
Justice Sotomayor, with whom Justice Ginsburg joins,
dissenting.
Today, this Court steps in to stay a preliminary injunction
requiring Sheriff Don Barnes and Orange County (collectively,
the Orange County Jail, or Jail) to implement certain safety meas-
ures to protec t their i nmates dur i ng the unprecedented
COVID–19 pandemic. The injunction's requirements are not
remarkable. In fact, the Jail initially claimed that it had already
implemented each and every one of them. Yet, apparently dis-
regarding the District Court's detailed factual fndings, its ap-
plication of established law, and the fact that the Court of Appeals
for the Ninth Circuit has twice denied a stay pending its re-
view of the District Court's order, this Court again intervenes to
grant a stay before the Circuit below has heard and decided the
case on the merits. See Little v. Reclaim Idaho, 591 U. S. 1060,
and n. 1 (2020) (Sotomayor, J., dissenting from grant of stay)
(noting the frequency with which the Court has begun granting
such stays). The Jail's application does not warrant such extra-
ordinary intervention. Indeed, this Court stays the District
Court's preliminary injunction even though the Jail recently re-
por ted 15 new cases of COVID–19 i n a si ng le week (even
with the injunction in place), even though the Jail misrepre-
sented under oath to the District Court the measures it was
taking to combat the virus' spread, and even though the Jail's
central rationale for a stay (that the in juncti on goes beyond

ORDERS 1069
1068
Sotoma
yor, J., dissenting
federal guidelines) ignores the lower courts' conclusion that the
Jai
l's measures fell “well short” of the Centers for Disease Control
and Prevention (CDC Guidelines). 2020 WL 3547960, *4 (CA9,
June 17, 2020).
I
The Orange County Jail currently houses a population of over
3,000 pretrial detainees and inmates. At the time of the District
Court's injunction, the Jail had witnessed an increase of more
than 300 confrmed COVID–19 cases in a little over a month.
The Jail, moreover, was well aware of the risk that the virus
could spread rapidly through its congregate population and that
addressing that risk would require certain precautionary meas-
ures. The District Court found that several organizations, includ-
ing a group of Orange County Sheriff deputies, had “repeatedly
war ned . . . of the dangers from COVID–19 i n the Jai l.”
445 F. Supp. 3d 671, 691 (CD Cal. 2020). Indeed, the Jail claims
that it sprang into action as soon as the Jail's frst documented
case of COVID–19 appeared in March of 2020, collaborating
closely with local health offcials on preventative measures to con-
tain the virus' spread. When respondents brought suit, seeking
an injunction that would require the Jail to implement a number
of safety measures to protect inmates against the virus, the Jail
told the District Court that such relief was not needed because
it had, “at a minimum, already implemented all of the mitigation
efforts” requested. Decl. of Joseph Balicki in No. 8:20–cv–00835,
Doc. 44–10, ¶2 (CD Cal., May 12, 2020) (Balicki Decl.); see also id.,
¶9 (“There is not a single `mitigation effort' outlined in Plaintiffs'
Complaint that has not already been implemented in the jails”).
The Jail claimed that it had already achieved proper social distan-
cing, provided inmates enough soap for frequent handwashing,
and isolated and tested all symptomatic individuals.
Dozens of inmate declarations told a different story. Although
the Jail had been warned that “social distancing is the cornerstone
of reducing transmission of COVID–19,” Exh. B to Balicki Decl.,
Doc. 44–12, inmates described being transported back and forth
to the jail in crammed buses, socializing in dayrooms with no
space to distance physically, lining up next to each other to wait
for the phone, sleeping in bunk beds two to three feet apart, and
even being ordered to stand closer than six feet apart when in-
mates tried to socially distance. Moreover, although the Jail told

1070 OCTOBER
TERM, 2019
Sotomayor, J., dissenting 591 U. S.
its inmates that they could “best protect” themselves by washing
their
hands with “soap and water throughout the day,” Exh. C to
Balicki Decl., Doc. 44–13, numerous inmates reported receiving
just one small, hotel-sized bar of soap per week. And after symp-
tomatic inmates were removed from their units, other inmates
were ordered to dispose of their belongings without gloves or
other protective equipment. Finally, despite the Jail's stated pol-
icy to test and isolate individuals who reported or exhibited symp-
toms consistent with COVID–19, multiple symptomatic detainees
described being denied tests, and others recounted sharing com-
mon spaces with infected or symptomatic inmates.
II
Based on detailed factual fndings, which the Ninth Circuit
credited, the District Court concluded that the risk of harm in
the Jail was “undeniably high.” 445 F. Supp. 3d, at 668. The
court further determined that while the Jail may have formally
adopted a policy to mitigate that risk, its actual compliance was
“piecemeal and inadequate.” Ibid. On this evidence, the Dis-
trict Court held that respondents were likely to succeed in show-
ing that the Jail was deliberately indifferent to the health and
safety of its inmates and that it had violated federal disability
rights law. In response, the court imposed a preliminary injunc-
tion that closely followed the CDC Guidelines for correctional and
detention facilities.
This Court now stays that injunction, even though this case
presents none of the typical indicia warranting certiorari. See
Maryland v. King, 567 U. S. 1301, 1302 (2012) (Roberts, C. J., in
chambers) (an applicant for a stay “must demonstrate (1) `a rea-
sonable probability' that this Court will grant certiorari, (2) `a
fair prospect' that the Court will then reverse the decision below,
and (3) `a likelihood that irreparable harm [will] result from the
denial of a stay' ” (quoting Conkright v. Frommert, 556 U. S. 1401,
1402 (2009) (Ginsburg, J., in chambers))). The District Court
and Ninth Circuit applied well-established law to the particular
facts of this case to conclude that the Jail knew of and disregarded
an “excessive risk to inmate health or safety.” Farmer v. Bren-
nan, 511 U. S. 825, 837 (1994). That conclusion is not clearly
wrong. The Jail argues that, because it voluntarily released 53
percent of its population, it necessarily could not have been delib-
erately indifferent to the needs of its inmates. But the release

ORDERS 1071
1068
Sotoma
yor, J., dissenting
of even a large number of inmates does not absolve the Jail of
its
responsibility for the health and safety of the roughly 3,000
individuals left behind. And while the Jail claims that it largely
implemented the CDC Guidelines and radically increased hygiene
and cleaning within its walls, the District Court, whose factual
fndings are owed deference, found the reality to be very differ-
ent.
1
The District Court concluded that by demonstrating the
Jail's failure to implement basic safety measures of which it was
well aware, respondents had established a likelihood of success on
their claim that the Jail had been deliberately indifferent to the
serious risk COVID–19 posed to the health of its inmates.
Even if this Court disagrees with the District Court's conclu-
sion, “error correction . . . is outside the mainstream of the Court's
functions and . . . not among the `compelling reasons' . . . that
govern the grant of certiorari.” S. Shapiro, K. Geller, T. Bishop,
E. Har tnett, & D. Hi mmelfarb, Supreme Cour t Prac tice
§ 5.12(c)(3), p. 5–45 (11th ed. 2019); see also Farmer, 511 U. S., at
842 (noting that deliberate indifference is a “question of fact sub-
ject to demonstration in the usual ways, including inference from
circumstantial evidence”). That is especially true where, as here,
the Jail fails to contest an entirely independent and suffcient
ground for the District Court's injunction: respondents' claims
under federal disability rights law.
The Jail nonetheless argues that the Ninth Circuit created a
certworthy circuit split because, in the Jail's view, it endorsed a
preliminary injunction that went beyond the CDC Guidelines.
But no circuit split exists. Like other Circuits, the Ninth Circuit
considered the Jail's request for a stay by applying established
law to the facts and equities before it. Its decision turned on the
conclusion that, in practice, the Jail's measures fell “well short”
of the CDC Guidelines, not on whether the District Court's injunc-
tion exceeded them. Indeed, in a case presenting different facts
and equities, the Ninth Circuit recently stayed an injunction to
the extent it exceeded the CDC Guidelines. See Roman v. Wolf,
2020 WL 2188048, *1 (CA9, May 5, 2020). Moreover, the Jail's
claim that “most of ” the injunction's requirements exceed the
CDC Guidelines is greatly exaggerated. Application for Stay 10.
The Jail points to just two alleged discrepancies: frst, that the
1
Notably, the Jail has since resisted respondents' attempts to verify the
Jail's compliance with the District Court's preliminary injunction.

1072 OCTOBER
TERM, 2019
Sotomayor, J., dissenting 591 U. S.
District Court ordered the Jail to provide adequate spacing of
six
feet or more between incarcerated people, whereas the CDC
Guidelines suggest only that six feet of space is “ `idea[l]' ”; and
second, that the injunction requires daily temperature checks and
screening questions. Id., at 10–11. As to the former, the CDC
Guidelines acknowledge that social distancing can be diffcult in
a correctional facility, but the Jail has not argued that its
physical layout does not permit it.
2
And as to the latter, as the
Jail itself admits, the Guidelines provide for daily temperature
checks in housing units where COVID–19 has been identifed.
Indeed, updated CDC Guidelines now recommend daily symptom
and temperature screening in any correctional facility with a re-
ported case.
The Jail also faces an uphill battle in its claim of irreparable
harm. The measures it now decries as vexatious judicial micro-
management are the same measures that just months ago it
claimed were, “at a minimum,” already being implemented. If
the Jail is already doing everything required by the injunction,
then what irreparable harm does the injunction pose? And if it
is not, and the Jail misrepresented its actions under oath to the
District Court, then why should the Jail beneft from this Court's
equitable discretion? See Trump v. International Refugee As-
sistance Project, 582 U. S. 571, 580 (2017) (per curiam) (“In as-
sessing the lower courts' exercise of equitable discretion, we bring
to bear an equitable judgment of our own”). This Court normally
does not reward bad behavior, and certainly not with extraordi-
nary equitable relief.
3
And while “[c]ourts must be sensitive to
2
Moreover, the injunction directs the Jail to “provide adequate spacing of
six feet or more between incarcerated people so that social distancing can
be accomplished in accordance with CDC guidelines,” 445 F. Supp. 3d
671, 694 (CD Cal. 2020), and therefore arguably requires the Jail to imple-
ment social distancing only to the extent required by the Guidelines.
3
Given the nature of the “rare and exceptional” relief the Jail seeks, Fargo
Women's Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993) (O'Con-
nor, J., concurring in denial of application), this Court has an independent
obligation to weigh the equities. The Jail's misrepresentations to the Dis-
trict Court are one factor to consider. Another is that on the very same
day it asked this Court to intervene in its pending appellate proceedings,
the Jail requested from the Ninth Circuit a 1-month extension to fle its
opening brief. One might wonder, then, whether the Jail's need for relief is
quite as urgent as the Jail makes out.

ORDERS 1073
591 U. S.
A
ugust 5, 11, 2020
the . . . need for deference to experienced and expert prison
admi
nistrators,” they “may not allow constitutional violations to
continue simply because a remedy would involve intrusion into
the realm of prison administration.” Brown v. Plata, 563 U. S.
493, 511 (2011).
***
At the time of the injunction, there were nearly 3,000 inmates
still in the Jail's care, 488 of whom were medically vulnerable to
COVID–19. “[H]aving stripped them of virtually every means
of self-protection and foreclosed their access to outside aid, the
government and its offcials” must “ `take reasonable measures to
guarantee the[ir] safety.' ” Farmer, 511 U. S., at 832–833; see
also Valentine v. Collier, 590 U. S. 935, 940 (2020) (statement of
Sotomayor, J.) (“It has long been said that a society's worth can
be judged by taking stock of its prisons. That is all the truer in
this pandemic, where inmates everywhere have been rendered
vu lnerable and of ten power less to protect themselves from
harm”). The District Court found that, despite knowing the se-
vere threat posed by COVID–19 and contrary to its own apparent
policies, the Jail exposed its inmates to signifcant risks from a
highly contagious and potentially deadly disease. Yet this Court
now intervenes, leaving to its own devices a jail that has misrep-
resented its actions to the District Court and failed to safeguard
the health of the inmates in its care. I respectfully dissent.
August 11, 2020
Miscellaneous Order
No. 20A21. Clarno, Oregon Secretary of State v. People
Not Politicians Oregon et al. D. C. Ore. Application for
stay, presented to Justice Kagan, and by her referred to the
Court, granted. The District Court's July 10 and July 13, 2020,
orders granting preliminary injunction are stayed pending dispo-
sition of the appeal in the United States Court of Appeals for the
Ninth Circuit and disposition of the petition for writ of certiorari,
if such writ is timely sought. Should the petition for writ of
certiorari be denied, this stay shall terminate automatically. In
the event the petition for writ of certiorari is granted, the stay
shall terminate upon the sending down of the judgment of this
Court. Justice Ginsburg and Justice Sotomayor would deny
the application.

1074 OCTOBER
TERM, 2019
August 13, 17, 18, 2020 591 U. S.
August 13, 2020
M
iscellaneous Order
No. 20A28. Republican National Committee et al. v.
Common Cause Rhode Island et al. D. C. R. I. Application
for stay, presented to Justice Breyer, and by him referred to
the Court, denied. Unlike Merrill v. People First of Alabama,
591 U. S. 1024 (2020), and other similar cases where a State de-
fends its own law, here the state election offcials support the
challenged decree, and no state offcial has expressed opposition.
Under these circumstances, the applicants lack a cognizable inter-
est in the State's ability to “enforce its duly enacted” laws. Ab-
bott v. Perez, 585 U. S. 579 (2018). The status quo is one in which
the challenged requirement has not been in effect, given the rules
used in Rhode Island's last election, and many Rhode Island vot-
ers may well hold that belief. Justice Thomas, Justice Alito,
and Justice Gorsuch would grant the application.
August 17, 2020
Miscellaneous Order
No. 19–422. Collins et al. v. Mnuchin, Secretary of the
Treasury, et al.; and
No. 19–563. Mnuchin, Secretary of the Treasury, et al.
v. Collins et al. C. A. 5th Cir. [Certiorari granted, 591 U. S.
1028.] Aaron Nielson, Esq., of Provo, Utah, is invited to brief
and argue as amicus curiae in support of the position that the
structure of the Federal Housing Finance Agency does not violate
the separation of powers.
August 18, 2020
Miscellaneous Order
No. 19–422. Collins et al. v. Mnuchin, Secretary of the
Treasury, et al.; and
No. 19–563. Mnuchin, Secretary of the Treasury, et al.
v. Collins et al. C. A. 5th Cir. [Certiorari granted, 591 U. S.
1028.] Mnuchin et al. shall fle an opening brief on the questions
presented by the petition in No. 19–563, limited to 13,000 words,
by Monday, August 17, 2020. Collins et al. shall fle a consoli-
dated response in No. 19–563 and opening brief in No. 19–422,
limited to 20,000 words, by Wednesday, September 16, 2020.

ORDERS 1075
591 U. S.
A
ugust 18, 24, 2020
That brief shall bear a light red cover. Court-appointed amicus
cur
iae shall fle a brief, limited to 13,000 words, by Friday, Octo-
ber 16, 2020. That brief shall bear a dark green cover. Mnuchin
et al shall fle a consolidated reply and response brief, limited to
13,000 words, by Friday, October 23, 2020. Collins et al. shall
fle a consolidated reply and response brief to brief for Court-
appointed amicus curiae, limited to 6,000 words, by Monday, No-
vember 23, 2020. That brief shall bear a tan cover.
Brief for any amicus curiae in support of Collins et al. or in
support of neither set of parties, shall be fled by Wednesday,
September 23, 2020. Those briefs shall bear a light green cover.
Brief for any amicus curiae in support of Mnuchin et al. or in
support of Court-appointed amicus curiae, shall be fled by Fri-
day, October 30, 2020. Those briefs shall bear a dark green cover.
August 24, 2020
Miscellaneous Orders
No. 19–840. California et al. v. Texas et al.; and
No. 19–1019. Texas et al. v. California et al. C. A. 5th
Cir. [Certiorari granted, 589 U. S. 1251.] Motions of the Solici-
tor General for divided argument and of the U. S. House of Repre-
sentatives for enlargement of time for oral argument and for
divided argument granted, and the time is allotted as follows:
30 minutes for California et al., 10 minutes for U. S. House of
Representatives, 20 minutes for the Solicitor General, and 20 min-
utes for Texas et al. Motion of Ohio et al. for leave to participate
in oral argument as amici curiae, for enlargement of time for
oral argument, and for divided argument denied.
No. 19 – 930. CIC Services, LLC v. Internal Revenue
Service et al. C. A. 6th Cir. [Certiorari granted, 590 U. S.
929.] Motion of petitioner to dispense with printing joint appen-
dix granted.
No. 19–5165. Yaney v. Superior Court of California, San
Bernardino County. Sup. Ct. Cal. Motion of petitioner for
reconsideration of order denying leave to proceed in forma pau-
peris [589 U. S. 907] denied.
No. 19–7935. Ball v. City of Marion, Illinois. Sup. Ct. Ill.
Motion of petitioner for reconsideration of order denying leave to
proceed in forma pauperis [590 U. S. 940] denied.

1076 OCTOBER
TERM, 2019
August 24, 2020 591 U. S.
No. 19–8133. Martinez v. United States. C. A. 6th Cir.
Moti
on of petitioner for reconsideration of order denying leave to
proceed in forma pauperis [590 U. S. 921] denied.
Rehearing Denied
No. 19–1224. Manning v. Kim, 591 U. S. 1003;
No. 19–1229. Mulcahy v. Aspen Skiing Co., 591 U. S. 1003;
No. 19–1297. Collins et al. v. D. R. Horton-Texas, Ltd.,
590 U. S. 993;
No. 19–5989. Victor v. Louisiana, 590 U. S. 920;
No. 19–6701. Labat v. Vannoy, Warden, 590 U. S. 945;
No. 19–6957. Metayer v. Florida, 589 U. S. 1216;
No. 19–7043. Toth v. Inch, Secretary, Florida Depart-
ment of Corrections, et al., 590 U. S. 971;
No. 19–7709. Toth v. Antonacci et al., 590 U. S. 924;
No. 19–7712. Jaramillo v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
sion, 590 U. S. 909;
No. 19–7840. Jones v. Errington, 590 U. S. 925;
No. 19–7841. In re Johnson, 590 U. S. 928;
No. 19–7877. Rogers v. Gastelo, Warden, 590 U. S. 932;
No. 19–7921. Scott v. Superior Court of California, Mon-
terey County, 590 U. S. 946;
No. 19–8021. Jackson v. Utah et al., 590 U. S. 949;
No. 19–8037. Ruttkamp v. Bank of New York Mellon, fka
Bank of New York, 591 U. S. 1005;
No. 19–8086. Jackson v. Taylor, Interim Commissioner,
Mississippi Department of Corrections, 590 U. S. 962;
No. 19–8174. Mata v. Massachusetts Commission Against
Discrimination, 590 U. S. 981;
No. 19–8236.
No. 19–8272.
No. 19–8288.
1005;
No. 19–8299.
No. 19–8312.
No. 19–8356.
No. 19–8366.
No. 19–8369.
No. 19–8469.
590 U. S. 983;
Brooks v. Foster, 590 U. S. 994;
Tate v. Ford, Warden, 591 U. S. 1005;
Truong et al. v. Barnard et al., 591 U. S.
Pattioay v. Hawaii, 591 U. S. 1005;
Candelaria v. United States, 590 U. S. 952;
Logan et al. v. Logan, 591 U. S. 1019;
Cabezas v. United States, 590 U. S. 973;
Hoskins v. GE Aviation, 591 U. S. 1007;
Viengxay Chantharath v. United States,

ORDERS 1077
591 U. S.
A
ugust 24, 25, 2020
No. 19–8485. Bell v. United States, 590 U. S. 996;
N
o. 19–8520. Mohn v. Progressive Insurance, 591 U. S.
1021; and
No. 19–8603. White v. Internal Revenue Service, 591
U. S. 1022. Petitions for rehearing denied.
No. 19–7915. DeAtley v. Williams, Executive Director,
Colorado Department of Corrections, et al., 590 U. S.
955. Petition for rehearing denied. Justice Gorsuch took no
part in the consideration or decision of this petition.
August 25, 2020
Miscellaneous Order
No. 20A32. Mitchell v. United States. Application for
stay of execution of sentence of death, presented to Justice
Kagan, and by her referred to the Court, denied.
Statement of Justice Sotomayor respecting the denial of the
application for stay.
The Federal Death Penalty Act of 1994 (FDPA) requires that
the Federal Government implement death sentences “in the man-
ner prescribed by the law of the State in which the sentence is
imposed.” 18 U. S. C. § 3596(a). Considerable uncertainty exists
about the scope of this provision. In the most detailed analysis
provided by a lower court to date, three judges offered three
different views on how to defne the “manner” of implementing a
death sentence and where to locate the relevant “law of the
State.” See In re Federal Bureau of Prisons' Execution Proto-
col Cases, 955 F. 3d 106, 108 (CADC 2020) (per curiam) (“Each
member of the panel takes a different view of what the FDPA
requires”). Thus far, this Court has declined to provide defnitive
guidance on these important questions. See Barr v. Roane, 589
U. S. 1097 (2019) (application for stay or vacatur denied); Bour-
geois v. Barr, 591 U. S. 1022 (2020) (cert. denied).
Because these questions are not adequately presented for our
review in the pending case, I agree with this Court's decision to
deny a stay. Here, the Ninth Circuit did not need to resolve the
key issue on which the D. C. Circuit panel split because it assumed
an answer favorable to Mitchell and still denied relief. See
United States v. Mitchell, 971 F. 3d 993, 996–999 (CA9 2020) (per
curiam). This case, therefore, does not turn on the question

1078 OCTOBER
TERM, 2019
August 25, September 11, 2020 591 U. S.
most in need of this Court's guidance: whether the “manner pre-
scr
ibed by the law of the State” includes procedures set forth in
a state agency's execution protocol. But with additional federal
executions scheduled in the coming months, the importance of
clarifying the FDPA's meaning remains. I believe that this Court
should address this issue in an appropriate case.
Certiorari Denied
No. 20–5398 (20A30). Mitchell v. United States. C. A. 9th
Cir. Application for stay of execution of sentence of death, pre-
sented to Justice Kagan, and by her referred to the Court,
denied. Certiorari denied. Reported below: 958 F. 3d 775.
September 11, 2020
Miscellaneous Orders
No. 20A13 (19–8665). Jackson v. Supreme Court of Illi-
nois. Sup. Ct. Ill. Application for stay, addressed to Justice
Sotomayor and referred to the Court, denied.
No. D–3049. In re Disbarment of Stovell. Disbarment
entered. [For earlier order herein, see 588 U. S. 934.]
No. D–3054. In re Disbarment of Hanover. Disbarment
entered. [For earlier order herein, see 589 U. S. 1129.]
No. D–3055. In re Disbarment of Frank. Disbarment en-
tered. [For earlier order herein, see 589 U. S. 1129.]
No. D–3056. In re Disbarment of James. Disbarment en-
tered. [For earlier order herein, see 589 U. S. 1129.]
No. D–3057. In re Disbarment of Blaher. Disbarment
entered. [For earlier order herein, see 589 U. S. 1129.]
No. D–3059. In re Disbarment of Hannah. Disbarment
entered. [For earlier order herein, see 589 U. S. 1197.]
No. D–3060. In re Disbarment of Torres. Disbarment en-
tered. [For earlier order herein, see 589 U. S. 1197.]
No. D–3061. In re Disbarment of DeSantis. Disbarment
entered. [For earlier order herein, see 589 U. S. 1197.]
No. D–3062. In re Disbarment of Watt. Disbarment en-
tered. [For earlier order herein, see 589 U. S. 1197.]

ORDERS 1079
591 U. S.
September
11, 17, 22, 2020
No. D–3063. In re Disbarment of Erwin. Disbarment en-
tered.
[For earlier order herein, see 589 U. S. 1198.]
No. D–3064. In re Disbarment of Vanderburg. Disbar-
ment entered. [For earlier order herein, see 589 U. S. 1198.]
No. D–3065. In re Disbarment of Farthing. Disbarment
entered. [For earlier order herein, see 589 U. S. 1198.]
No. D–3066. In re Disbarment of Carr. Disbarment en-
tered. [For earlier order herein, see 589 U. S. 1198.]
No. 19 – 930. CIC Services, LLC v. Internal Revenue
Service et al. C. A. 6th Cir. Motion of Institute for Free
Speech for leave to fle brief as amicus curiae granted. Motion
of Partnership for Conservation for leave to fle brief as amicus
curiae out of time granted.
Rehearing Denied
No. 19–1262. Greer v. Mehiel et al., 591 U. S. 1004;
No. 19–7872. Wilder v. Krebs, 590 U. S. 980;
No. 19–8185. Scott v. California, 590 U. S. 981;
No. 19–8202. Gough v. Bankers Life & Casualty Co., 590
U. S. 981;
No. 19–8234. Davis v. Eppinger, Warden, 590 U. S. 994;
No. 19–8242. Weatherspoon v. Bagahpour et al., 590 U. S.
994; and
No. 19–8355. Ray v. Stitt, Governor of Oklahoma, 591
U. S. 1019. Petitions for rehearing denied.
No. 19–1251. Armstrong v. School District of Philadel-
phia et al., 591 U. S. 1022. Petition for rehearing denied. Jus-
tice Alito took no part in the consideration or decision of this
petition.
September 17, 2020
Dismissal Under Rule 46
No. 19–1379. McKinley v. Bey. C. A. 6th Cir. Certiorari dis-
missed under this Court's Rule 46. Reported below: 946 F. 3d 304.
September 22, 2020
Certiorari Denied
No. 20–5767 (20A52). LeCroy v. United States. C. A. 11th
Cir. Application for stay of execution of sentence of death, pre-

1080 OCTOBER
TERM, 2019
September 22, 24, 30, October 2, 2020 591 U. S.
sented to Justice Thomas, and by him referred to the Court,
denied.
Certiorari denied. Reported below: 975 F. 3d 1192.
September 24, 2020
Certiorari Denied
No. 20–5766 (20A49). Vialva v. United States. C. A. 5th
Cir. Application for stay of execution of sentence of death, pre-
sented to Justice Alito, and by him referred to the Court, de-
nied. Certiorari denied. Reported below: 976 F. 3d 458.
September 30, 2020
Miscellaneous Order
No. 20–366. Trump, President of the United States, et al.
v. New York et al. Appeal from D. C. S. D N. Y. Appellants'
motion to expedite consideration of jurisdictional statement
granted in part, and appellees are directed to fle a response to
the jurisdictional statement on or before 5 p.m. on Wednesday,
October 7, 2020.
October 2, 2020
Certiorari Granted
No. 19–1155. Barr, Attorney General v. Ming Dai.; and
No. 19 –1156. Barr, At torney General v. Alcaraz-
Enriquez. C. A. 9th Cir. Certiorari granted, cases consoli-
dated, and a total of one hour is allotted for oral argument. Re-
ported below: No. 19–1155, 884 F. 3d 858; No. 19–1156, 727 Fed.
Appx. 260.
No. 19–1189. BP p.l.c. et al. v. Mayor and City Council
of Baltimore. C. A. 4th Cir. Certiorari granted. Justice
Alito took no part in the consideration or decision of this peti-
tion. Reported below: 952 F. 3d 452.
No. 19–1231. Federal Communications Commission et al.
v. Prometheus Radio Project et al.; and
No. 19–1241. National Association of Broadcasters
et al. v. Prometheus Radio Project et al. C. A. 3d Cir.
Certiorari granted, cases consolidated, and a total of one hour is
allotted for oral argument. Reported below: 939 F. 3d 567.
No. 19–1257. Brnovich, Attorney General of Arizona,
et al. v. Democratic National Committee et al.; and

ORDERS 1081
591 U. S.
Oc
tober 2, 2020
No. 19–1258. Arizona Republican Party et al. v. Demo-
cra
tic National Committee et al. C. A. 9th Cir. Certiorari
granted, cases consolidated, and a total of one hour is allotted for
oral argument. Reported below: 948 F. 3d 989.