Kelly v. United States

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Vol. 590 (Pp. 1–431; 901–969)
UNITED STATES REPORTS
Part 1
P R E L I M I N A R Y P R I N T
Volume 590 U. S. - Part 1
Pages 1–431; 901–969
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 20 Through May 29, 2020
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.
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.
SCOTT S. HARRIS, Clerk.
CHRISTINE LUCHOK FALLON, Reporter of
Decisions.
PAMELA TALKIN, Marshal.
LINDA S. MASLOW, Librarian.
i

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.)
ii

I N D E X
(Vol. 590 U. S., Part 1)
AWARD OF PROFITS. See Lanham Act.
CLAIM PRECLUSION. See Preclusion Law.
CLEAN WATER ACT.
Po in t source and no npoint source po llut io n—Permi tting requ ire-
ments.—Act, which forbids “any addition” of any pollutant from “any point
source” to “navigable waters” without appropriate EPA permit, 33 U. S. C.
§§ 1311(a), 1362(12)(A), requires a permit when there is a direct discharge
from a point source into navigable waters or when there is functional
equivalent of a direct discharge. County of Maui v. Hawaii Wildlife
Fund, p. 165.
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSA-
TION, AND LIABILITY ACT.
Environmental cleanups at Superfund sites—Pre-emption of state
common-law claims.—Montana Supreme Court erred by holding that
respondent landowners were not potentially responsible parties under
CERCLA and thus did not need EPA's approval to take remedial action.
Atlantic Richfeld Co. v. Christian, p. 1.
CONSTITUTIONAL LAW. See also Federal Courts.
Right to bear arms—Ban on transporting frearm outside city limits—
Question of public safety and consistency with Second Amendment.—
Petitioners' claim for declaratory and injunctive relief with respect to
City's old rule on transporting frearms is moot, and any claim for damages
with respect to that rule may be addressed in frst instance by Court of
Appeals and District Court on remand. New York State Rife & Pistol
Assn., Inc. v. City of New York, p. 336.
Right to jury trial—Sixth Amendment's unanimous verdict guaran-
tee—Extent of incorporation by Fourteenth Amendment.—Louisiana
Court of Appeal's holding that nonunanimous jury verdicts are constitu-
tional is reversed. Ramos v. Louisiana, p. 83.
COPYRIGHT LAW.
Extent of government edicts doctrine—Works lacking the force of
law.—Under government edicts doctrine, annotations beneath statutory
iii

iv INDEX
COPYRIGHT
LAW—Continued.
provisions in Offcial Code of Georgia Annotated are ineligible for copy-
r
ight protection. Georgia v. Public Resource.Org, Inc., p. 255.
CRIMINAL LAW. See Immigration Law.
DISCHARGE OF WATER POLLUTANTS. See Clean Water Act.
DISCHARGE PERMITS. See Clean Water Act.
ENVIRONMENT. See Clean Water Act; Comprehensive Environ-
mental Response, Compensation, and Liability Act.
FEDERAL COURTS.
Prohibition against encouraging or inducing illegal immigration—
Question of constitutionality.—Ninth Circuit panel's drastic departure
from principle of party presentation constituted an abuse of discretion
where court decided a question never raised by respondent, namely,
whether 8 U. S. C. § 1324(a)(1)(A)(iv) is unconstitutionally overbroad.
United States v. Sineneng-Smith, p. 371.
F EDER A L WAT ER POLLU TION CON T ROL ACT. See Clean
Water Act.
FIREARMS. See Constitutional Law.
FOREIGN SOVEREIGN IMMUNITIES ACT. See National Defense
Authorization Act.
FOURTEENTH AMENDMENT. See Constitutional Law.
GEORGIA. See Copyright Law.
GOVERNMENT PUBLICATIONS. See Copyright Law.
HA ZARDOUS WA STE. See Comprehen sive Env i ron ment a l Re-
sponse, Compensation, and Liability Act.
HEALTH CARE EXCHANGES. See Patient Protection and Afford-
able Care Act.
IMMIGRATION LAW. See also Federal Courts.
Lawful permanent resident rendered inadmissible—Stop-time rule.—
In determining eligibility for cancellation of removal of a lawful permanent
resident who commits a serious crime, an offense listed in 8 U. S. C.
§ 1182(a)(2) committed during initial seven years of residence need not be
one of offenses of removal. Barton v. Barr, p. 222.
INCORPORATION. See Constitutional Law.
INTER PARTES REVIEW. See Patent Law.

INDEX v
ISSUE PRECLUSION. See Preclusion Law.
L
ANHAM ACT.
Award of profts for trademark violation—Showing of will ful in fringe-
ment not a prerequisite.—Plaintiff in a trademark infringement suit is not
required to show that a defendant willfully infringed plaintiff's trademark
as a precondition to an award of profts. Romag Fasteners, Inc. v. Fossil
Group, Inc., p. 212.
LOUISIANA. See Constitutional Law.
NATIONAL DEFENSE AUTHORIZATION ACT.
Terrorism exception to Foreign Sovereign Immunities Act—Punitive
damages for past conduct.—Plaintiffs in a suit against a foreign state for
personal injury or death caused by acts of terrorism under 28 U. S. C.
§ 1605A(c) may seek punitive damages for preenactment conduct. Opati
v. Republic of Sudan, p. 418.
NAVIGABLE WATERS. See Clean Water Act.
NEW JERSEY. See Wire Fraud.
NEW YORK CITY. See Constitutional Law.
PATENT LAW.
Patent in fringement complaint dismissed without prejudice—Finding
that time bar did not apply.—Title 35 U. S. C. § 314(d) precludes judicial
review of a Patent Trial and Appeal Board's decision to institute inter
partes review upon fnding that § 315(b)'s time bar did not apply. Thryv,
Inc. v. Click-To-Call Technologies, LP, p. 45.
PATIENT PROTECTION AND AFFORDABLE CARE ACT.
Losses by health insurers joining health beneft exchanges—Statutory
promise to pay insurers for losses.—Act's now expired “Risk Corridors”
statute—which set a formula for calculating payments to healthcare insur-
ers for unexpectedly unproftable plans during frst three years of online
insurance marketplaces—created a Government obligation to pay insurers
full amount of their computed losses; and petitioners properly relied on
Tucker Act to sue for damages in Court of Federal Claims. Maine Com-
munity Health Options v. United States, p. 296.
POLITICAL RETRIBUTION. See Wire Fraud.
PRECLUSION LAW.
Second Circuit's “defense preclusion” rule—Raising defenses to claims
not litigated earlier.—Because trademark action at issue challenged dif-
ferent conduct—and raised different claims—from an earlier action be-
tween parties, Marcel cannot preclude Lucky Brand from raising new

vi INDEX
PRECLUSION
LAW—Continued.
defenses, including a defense that Lucky Brand failed to press fully in
ear
lier suit. Lucky Brand Dungarees, Inc. v. Marcel Fashions Group,
Inc., p. 405.
PRE-EMPTION OF STATE LAW. See Comprehensive Environmen-
tal Response, Compensation, and Liability Act.
PRINCIPLE OF PARTY PRESENTATION. See Federal Courts.
PUNITIVE DAMAGES. See National Defense Authorization Act.
REMOVAL. See Immigration Law.
SECOND AMENDMENT. See Constitutional Law.
SIXTH AMENDMENT. See Constitutional Law.
TERRORISM. See National Defense Authorization Act.
TIMELINESS OF ACTIONS. See Patent Law.
TRADEMARK INFRINGEMENT. See Lanham Act.
TRADEMARK LAW. See Lanham Act; Preclusion Law.
TRANSPORTATION OF FIREARMS. See Constitutional Law.
TUCKER ACT. See Patient Protection and Affordable Care Act.
UNANIMOUS JURY REQUIREMENT. See Constitutional Law.
WATER POLLUTION. See Clean Water Act.
WIRE FRAUD.
Federal w ire f raud—Po l i t ical retr ibu t io n—Object o f the f raud.—
Because scheme to reduce number of George Washington Bridge toll lanes
dedicated to Fort Lee, New Jersey, morning commuters as political retri-
bution against Fort Lee's mayor did not aim to obtain money or property
from federal Port Authority, petitioners could not have violated federal-
program fraud or wire fraud laws. Kelly v. United States, p. 391.
WORDS AND PHRASES.
“[A]ny addition of any pollutant to navigable waters from any point
source.” Clean Water Act, 33 U. S. C. § 1362(12)(A). County of Maui v.
Hawaii Wildlife Fund, p. 165.

TABLE OF CA SES REPORTED
(Vol. 590 U. S., Part 1)
Notes:
This volume provides the permanent United States Reports citation for
all reported cases. Cases reported before page 901 are those decided
with opinions of the Court or decisions per curiam. Cases reported on
page 901 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
Abdul-Latif v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Adams v. Calhoun Cty., Mich. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Allen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Allison; Jarvis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Alridge v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Arkansas; May v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Armstrong v. Securities and Exchange Comm'n . . . . . . . . . . . . . . 935
Arunachalam v. Exxon Mobil Corp. . . . . . . . . . . . . . . . . . . . . . . . 940
Arunachalam v. Intuit, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Arunachalam v. Lyft, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Arunachalam v. Uber Technologies, Inc. . . . . . . . . . . . . . . . . . . . . 957
Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc. . . . . . . . 919
Atlantic Richfeld Co. v. Christian . . . . . . . . . . . . . . . . . . . . . . . . 1
Attorney General; Barton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Attorney General; Beers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Attorney General; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Attorney General of Ark. v. Pharmaceutical Care Mgmt. Assn. 902
Attorney General of N. Y.; Smith v. . . . . . . . . . . . . . . . . . . . . . . . 956
vii

viii T
ABLE OF CASES REPORTED
Page
Atyia; Whitten v. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Baca; Colorado Dept. of State v. . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Baker v. Macy's Fla. Stores, LLC . . . . . . . . . . . . . . . . . . . . . . . . . 903
Ball v. Marion, Ill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Bamdad, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Bandemer; Ford Motor Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Bank of New York Mellon; Ruttkamp v. . . . . . . . . . . . . . . . . . . . . 941
Banks v. Braun. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Barnes & Thornburg LLP; Collins v. . . . . . . . . . . . . . . . . . . . . . . 934
Barr; Barton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Barr; Beers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Barr; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Barton v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Batalla Vidal; Wolf v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Beebe, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Beers v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Bell v. Ransom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Bennett Regulator Guards, Inc.; Atlanta Gas Light Co. v. . . . . . . 919
Bishay, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Borden v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Boyett v. New Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Braspenick v. Johnson Law PLC . . . . . . . . . . . . . . . . . . . . . . . . . 418
Braun; Banks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Braun; Matthews v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Bronsozian v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Brooks v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Brown, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Brown v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Brown v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Brown; Popal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Brown v. San Bernardino Cty., Cal. . . . . . . . . . . . . . . . . . . . . . . . 965
Calhoun Cty., Mich.; Adams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
California; Sanchez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
California; Yablonsky v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Carter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Chambers v. Hardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Christian; Atlantic Richfeld Co. v. . . . . . . . . . . . . . . . . . . . . . . . . 1
CIC Services, LLC v. Internal Revenue Service . . . . . . . . . . . . . 929
Ciotta, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
942
City. See name of city.
Clancy v. Florida Dept. of Corrections . . . . . . . . . . . . . . . . . . . . . 956
Clark; Rowe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Click-To-Call Technologies, LP; Thryv, Inc. v. . . . . . . . . . . . . . . . 45
Cobble v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965

T
ABLE OF CASES REPORTED
ix
Page
Collier; Valentine v. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Collins v. Barnes & Thornburg LLP . . . . . . . . . . . . . . . . . . . . . . 934
Collins v. Thornton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Colorado Dept. of State v. Baca . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Commissioner; Shuman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Commissioner; Waltner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
Conway; Wimbush v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Cook Cty., Ill.; Wolf v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Corrections Commissioner. See name of commissioner.
Cotton v. Eckstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
County. See name of county.
Crehan v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Davis, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Davis v. MTGLQ Investors, L. P. . . . . . . . . . . . . . . . . . . . . . . . . . 918
Davis; Murphy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Davis; Ramirez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Davis v. Tegley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Denver Health and Hospital Auth.; Vazirabadi v. . . . . . . . . . . . . . 965
Department of Homeland Security v. New York . . . . . . . . . . . . . . 918
Department of Homeland Security v. Regents of the Univ. of Cal. 902
Department of Justice v. House Comm. on the Judiciary . . . . . . . 956
Deutsche Bank AG; Trump v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Deville, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Diaz; Duran v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Dick v. Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Director of penal or correctional institution. See name or title
of director.
Duran v. Diaz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Dyson v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Eaton, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Eckstein; Cotton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Edmo; Idaho Dept. of Correction v. . . . . . . . . . . . . . . . . . . . . . . . 957
Edwards v. Vannoy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Elim Romanian Pentecostal Church v. Pritzker . . . . . . . . . . . . . . 969
Environmental Research Center; Hotze Health Wellness Center v. 955
EEOC; R. G. & G. R. Harris Funeral Homes, Inc. v. . . . . . . . . . . 958
Estate. See name of estate.
Ex parte. See name of party.
Exxon Mobil Corp.; Arunachalam v. . . . . . . . . . . . . . . . . . . . . . . . 940
Findlay, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Fleck v. Wetch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Florida; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Florida; McKinnon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Florida Dept. of Corrections; Clancy v. . . . . . . . . . . . . . . . . . . . . 956

x T
ABLE OF CASES REPORTED
Page
Ford Motor Co. v. Bandemer .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Ford Motor Co. v. Montana Eighth Judicial Dist. Ct. . . . . . . . . . . 902
Fossil Group, Inc.; Romag Fasteners, Inc. v. . . . . . . . . . . . . . . . . . 212
Fox v. U. S. Postal Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Friends of DeVito v. Wolf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Georgia v. Public.Resource.Org, Inc. . . . . . . . . . . . . . . . . . . . . . . . 255
Georgia State Univ. Admissions Offce; Kemp v. . . . . . . . . . . . . . . 918
Google LLC v. Oracle America, Inc. . . . . . . . . . . . . . . . . . . . . . . . 928
Governor of Cal.; South Bay United Pentecostal Church v. . . . . . 965
Governor of Ill.; Elim Romanian Pentecostal Church v. . . . . . . . . 969
Governor of Pa.; Friends of DeVito v. . . . . . . . . . . . . . . . . . . . . . 935
Greiner v. Macomb Cty., Mich. . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
G. R. Harris Funeral Homes, Inc. v. EEOC . . . . . . . . . . . . . . . . . 958
Guernsey; Pearsall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Gulbrandson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Hampton, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Hardy; Chambers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Hawaii Wildlife Fund; Maui Cty. v. . . . . . . . . . . . . . . . . . . . . . . . . 165
Heard v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Hennepin Cty. Human Service & Public Health Dept.; Sanders v. 965
Hill-Lomax v. Vittetoe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Hogue; Ramirez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Hotze Health Wellness Center v. Environmental Research Center 955
House Comm. on the Judiciary; Department of Justice v. . . . . . . . 956
Hunter v. Murdoch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Hye-Young v. Secolsky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Idaho Dept. of Correction v. Edmo . . . . . . . . . . . . . . . . . . . . . . . . 957
Illinois; Peters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Inch; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
In re. See name of party.
Internal Revenue Service; CIC Services, LLC v. . . . . . . . . . . . . . 929
Intuit, Inc.; Arunachalam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Jackson; Roberson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Jackson; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Jarvis v. Allison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Jefferson v. Shinn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Johnson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Johnson v. Louisiana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Johnson v. Morgan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Johnson Law PLC; Braspenick v. . . . . . . . . . . . . . . . . . . . . . . . . . 418
Kane v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Kaneka Corp. v. Xiamen Kingdomway Group Co. . . . . . . . . . . . . . 902
Karnofel v. Superior Waterproofng, Inc. . . . . . . . . . . . . . . . . . . . 918
Kee v. Raemisch. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928

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Page
Kelley; Lofton v. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Kelley; True v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Kelly v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Kemp v. Georgia State Univ. Admissions Offce . . . . . . . . . . . . . . 918
Khrapko v. Splain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Kinder Morgan Energy Partners, L. P. v. Upstate Forever . . . . . 928
Klieman's Estate v. Palestinian Auth. . . . . . . . . . . . . . . . . . . . . . . 920
Klieman's Estate v. Palestinian Interim Self-Government Auth. 920
Kowalski; Walton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Lasher v. Nebraska State Bd. of Pharmacy . . . . . . . . . . . . . . . . . 922
Latham v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
LeBlanc; Marlowe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Leonard, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Lewis v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Lindsey v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Little Sisters of the Poor v. Pennsylvania . . . . . . . . . . . . . . . . . . 902
Lofton v. Kelley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Lopez, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Lopez v. Lopez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Los Angeles Cty., Cal.; Oeur v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Louisiana; Alridge v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Louisiana; Brooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Louisiana; Crehan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Louisiana; Dyson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Louisiana; Heard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Louisiana; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Louisiana; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Louisiana; Nagi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Louisiana; Ramos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Louisiana; Richards v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Louisiana; Sheppard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Louisiana; Victor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Lowe v. Parris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc. . . . 405
Lyft, Inc.; Arunachalam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Macomb Cty., Mich.; Greiner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Macy's Fla. Stores, LLC; Baker v. . . . . . . . . . . . . . . . . . . . . . . . . 903
Maine Community Health Options v. United States . . . . . . . . . . . 296
Marcel Fashions Group, Inc.; Lucky Brand Dungarees, Inc. v. . . . 405
Marcotte; Weixing Wang v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Marion, Ill.; Ball v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
940
Marlowe v. LeBlanc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Martinez, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Martinez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921

xii T
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Page
Matthews v. Braun .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Mattison, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Maui Cty. v. Hawaii Wildlife Fund . . . . . . . . . . . . . . . . . . . . . . . . 165
May v. Arkansas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Mazars USA, LLP; Trump v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
McDonald v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
McKinnon v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Mickens; Wimbush v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Montana Eighth Judicial Dist. Ct.; Ford Motor Co. v. . . . . . . . . . . 902
Moon, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Moore v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Morgan; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
MTGLQ Investors, L. P.; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . 918
Murdoch; Hunter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Murphy v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Nagi v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
National Assn. for the Advancement of Colored People; Trump v. 902
National Public Radio; Yeager v. . . . . . . . . . . . . . . . . . . . . . . . . . 934
Nebraska State Bd. of Pharmacy; Lasher v. . . . . . . . . . . . . . . . . . 922
Neus; Rigwan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
New Mexico; Boyett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Newsom; South Bay United Pentecostal Church v. . . . . . . . . . . . . 965
New York; Department of Homeland Security v. . . . . . . . . . . . . . 918
New York City; New York State Rife & Pistol Assn., Inc. v. . . . . 336
New York State Rife & Pistol Assn., Inc. v. New York City . . . . 336
Norfolk, Va.; Perry-Bey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Nunu v. Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Oeur v. Los Angeles Cty., Cal. . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Ohio; Rarden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Opati v. Republic of Sudan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Oracle America, Inc.; Google LLC v. . . . . . . . . . . . . . . . . . . . . . . 928
Oregon; Dick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Palestine Liberation Org.; Sokolow v. . . . . . . . . . . . . . . . . . . . . . . 921
Palestinian Auth.; Klieman's Estate v. . . . . . . . . . . . . . . . . . . . . . 920
Palestinian Interim Self-Government Auth.; Klieman's Estate v. 920
Parris; Lowe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Payne; Weeks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Pearsall v. Guernsey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Pennsylvania; Kane v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Pennsylvania; Little Sisters of the Poor v. . . . . . . . . . . . . . . . . . . 902
Pennsylvania; Trump v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Perkins, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Perry-Bey v. Norfolk, Va. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Peters v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928

T
ABLE OF CASES REPORTED
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Page
Pharmaceutical Care Mgmt. Assn.; Rutledge v. .
. . . . . . . . . . . . . 902
Philadelphia, Pa.; Purisima v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Popal v. Brown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
President of United States v. NAACP . . . . . . . . . . . . . . . . . . . . . 902
President of United States v. Pennsylvania . . . . . . . . . . . . . . . . . 902
Pritzker; Elim Romanian Pentecostal Church v. . . . . . . . . . . . . . . 969
Pryor v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Public.Resource.Org, Inc.; Georgia v. . . . . . . . . . . . . . . . . . . . . . . 255
Purisima v. Philadelphia, Pa. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Raemisch; Kee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Raghubir, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Ramirez v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Ramirez v. Hogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Ramos v. Louisiana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Randall, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Ransom; Bell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Rarden v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Regents of the Univ. of Cal.; Department of Homeland Security v. 902
Rendelman v. True . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Republic of Sudan; Opati v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
R. G. & G. R. Harris Funeral Homes, Inc. v. EEOC . . . . . . . . . . . 958
Rhodes; Rosa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Richards v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Rigwan v. Neus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Risk; Nunu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Roberson v. Jackson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Romag Fasteners, Inc. v. Fossil Group, Inc. . . . . . . . . . . . . . . . . . 212
Romero, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Rosa v. Rhodes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Rosas v. University of Tex. at San Antonio . . . . . . . . . . . . . . . . . 941
Rose v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Rowe v. Clark. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Rutledge v. Pharmaceutical Care Mgmt. Assn. . . . . . . . . . . . . . . . 902
Ruttkamp v. Bank of New York Mellon . . . . . . . . . . . . . . . . . . . . 941
St. Joseph's/Candler Health System, Inc.; Smith v. . . . . . . . . . . . . 918
San Bernardino Cty., Cal.; Brown v. . . . . . . . . . . . . . . . . . . . . . . . 965
Sanchez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Sanders v.
Hennepin Cty. Human Service & Public Health Dept. 965
Sanders v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Sarver's Realty; Shampine v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Schwaller; Tooly v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Scott; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Secolsky; Hye-Young v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
SEC; Armstrong v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935

xiv T
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Page
Shampine v. Sarver's Realty .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Superintendent of penal or correctional institution. See name or
Sheppard v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Shinn; Jefferson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Shuman v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Sineneng-Smith; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . 371
Smith, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Smith v. Jackson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Smith v. St. Joseph's/Candler Health System, Inc. . . . . . . . . . . . . 918
Smith v. Scott. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Smith v. Underwood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Smith v. University of Chicago Medical Center . . . . . . . . . . . . . . 958
Sokolow v. Palestine Liberation Org. . . . . . . . . . . . . . . . . . . . . . . 921
South Bay United Pentecostal Church v. Newsom . . . . . . . . . . . . 965
Splain; Khrapko v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Starks, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Starling, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Strange, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Sudan; Opati v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
title of superintendent.
Superior Communications, Inc. v. Voltstar Technologies, Inc. . . . . 919
Superior Waterproofng, Inc.; Karnofel v.
United States. See name of other party.
. . . . . . . . . . . . . . . . . . . 918
Taco Bell; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Tanamor-Steffan, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
TCT Mobile International Ltd., In re . . . . . . . . . . . . . . . . . . . . . . 928
Tegley; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Thornton; Collins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Thryv, Inc. v. Click-To-Call Technologies, LP . . . . . . . . . . . . . . . . 45
Tooly v. Schwaller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Townsend, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
True v. Kelley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
True; Rendelman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Trump v. Deutsche Bank AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Trump v. Mazars USA, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Trump v. National Assn. for the Advancement of Colored People 902
Trump v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Uber Technologies, Inc.; Arunachalam v. . . . . . . . . . . . . . . . . . . . 957
Underwood; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
U. S. Postal Service; Fox v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
University of Chicago Medical Center; Smith v. . . . . . . . . . . . . . . 958
University of Tex. at San Antonio; Rosas v. . . . . . . . . . . . . . . . . .
941
Upstate Forever; Kinder Morgan Energy Partners, L. P. v. . . . . . 928
Valentine v. Collier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935

T
ABLE OF CASES REPORTED
xv
Page
Van Buren v. United States .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Vannoy; Edwards v.
Williams, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922,942
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Vazirabadi v. Denver Health and Hospital Auth. . . . . . . . . . . . . . . 965
Victor v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Vidal; Wolf v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Vittetoe; Hill-Lomax v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Voltstar Technologies, Inc.; Superior Communications, Inc. v. . . . 919
Wallace, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Wallace v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Waltner v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
Walton v. Kowalski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Wang v. Marcotte . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Warden. See name of warden.
Watson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Weeks v. Payne . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Weixing Wang v. Marcotte . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Wetch; Fleck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
White, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Whitten v. Atyia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Wichita, Kan.; Williamson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Williams v. Taco Bell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Williams v. Wilson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Williamson v. Wichita, Kan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Wilson v. Inch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Wilson; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Wimbush v. Conway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Wimbush v. Mickens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Wolf v. Batalla Vidal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Wolf v. Cook Cty., Ill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Wolf; Friends of DeVito v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Woodson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Xiamen Kingdomway Group Co.; Kaneka Corp. v. . . . . . . . . . . . . 902
Yablonsky v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Yeager v. National Public Radio . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Young, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958

CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2019
ATLANTIC RICHFIELD CO. v. CHRISTIAN et al.
certiorari to the supreme court of montana
No. 17–1498. Argued December 3, 2019—Decided April 20, 2020
The Comprehensive Environmental Response, Compensation, and Liabil-
ity Act, 42 U. S. C. § 9601 et seq., also known as the Superfund statute,
promotes “the timely cleanup of hazardous waste sites and [ensures]
that the costs of such cleanup efforts [are] borne by those responsible
for the contamination,” CTS Corp. v. Waldburger, 573 U. S. 1, 4 (internal
quotation marks omitted). The Act directs the Environmental Protec-
tion Agency to compile and annually revise a prioritized list of contami-
nated sites for cleanup, known as Superfund sites, and makes responsi-
ble parties liable for the cost of the cleanup. Before a cleanup plan is
selected, a remedial investigation and feasibility study is conducted to
assess the contamination and evaluate cleanup options. Once that
study begins, § 122(e)(6) of the Act provides, “no potentially responsible
party may undertake any remedial action” at the site without EPA ap-
proval. To insulate cleanup plans from collateral attack, § 113(b) pro-
vides federal district courts with “exclusive original jurisdiction over
all controversies arising under” the Act, and § 113(h) then strips those
courts of jurisdiction “to review any challenges to removal or remedial
action,” except in fve limited circumstances.
For nearly a century, the Anaconda Copper Smelter in Butte, Montana
contaminated an area of over 300 square miles with arsenic and lead.
Over the past 35 years, EPA has worked with the current owner of the
now-closed smelter, Atlantic Richfeld Company, to implement a cleanup
plan for a remediation expected to continue through 2025. A group of
1

2 A
TLANTIC RICHFIELD CO. v. CHRISTIAN
Syllabus
98 landowners sued Atlantic Richfeld in Montana state court for com-
mon
law nuisance, trespass, and strict liability, seeking restoration dam-
ages, which Montana law requires to be spent on property rehabilita-
tion. The landowners' proposed plan exceeds the measures found
necessary to protect human health and the environment by EPA. The
trial court granted summary judgment to the landowners on the issue
of whether the Act precluded their restoration damages claim and al-
lowed the lawsuit to continue. After granting a writ of supervisory
control, the Montana Supreme Court affrmed, rejecting Atlantic Rich-
feld's argument that § 113 stripped the Montana courts of jurisdiction
over the landowners' claim and concluding that the landowners were not
potentially responsible parties (or PRPs) prohibited from taking reme-
dial action without EPA approval under § 122(e)(6).
Held:
1. This Court has jurisdiction to review the Montana Supreme Court's
decision. To qualify as a fnal judgment subject to review under 28
U. S. C. § 1257(a), a state court judgment must be “an effective determi-
nation of the litigation and not of merely interlocutory or intermediate
steps therein.” Jefferson v. City of Tarrant, 522 U. S. 75, 81. Under
Montana law, a supervisory writ proceeding is a self-contained case, not
an interlocutory appeal. Mont. Const., Art. VII, §§ 2(1)–(2); Mont. Rules
App. Proc. 6(6), 14(1), 14(3). Thus, the writ issued in this case is a “fnal
judgment” within this Court's jurisdiction. Fisher v. District Court of
Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 385, n. 7. Pp. 11–12.
2. The Act does not strip the Montana courts of jurisdiction over this
lawsuit. Section 113(b) of the Act provides that “the United States
district courts shall have exclusive original jurisdiction over all contro-
versies arising under this chapter,” so state courts lack jurisdiction over
such actions. The use of “arising under” in § 113(b) echoes Congress's
more familiar use of that phrase in granting federal courts jurisdiction
over “all civil actions arising under the Constitution, laws, or treaties of
the United States.” 28 U. S. C. § 1331. In the mine run of cases, “[a]
suit arises under the law that creates the cause of action.” American
Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260. The land-
owners' common law nuisance, trespass, and strict liability claims arise
under Montana law and not under the Act.
Atlantic Richfeld mistakenly argues that § 113(h)—which states that
“[n]o Federal court shall have jurisdiction under Federal law . . . to
review any challenges to removal or remedial action” selected under the
Act—implicitly broadens the scope of actions precluded from state court
jurisdiction under § 113(b). But § 113(h) speaks of “Federal court[s],”
not state courts. There is no textual basis for Atlantic Richfeld's argu-

Cite
as: 590 U. S. 1 (2020)
3
Syllabus
ment that Congress precluded state courts from hearing a category of
cases
in § 113(b) by stripping federal courts of jurisdiction over those
cases in § 113(h). Often the simplest explanation is the best: Section
113(b) deprives state courts of jurisdiction over cases “arising under”
the Act—just as it says—while § 113(h) deprives federal courts of juris-
diction over certain “challenges” to Superfund remedial actions—just as
it says. Pp. 12–17.
3. The Montana Supreme Court erred by holding that the landowners
were not potentially responsible parties under the Act and thus did not
need EPA approval to take remedial action. To determine who is a
potentially responsible party, the Court looks to the list of “covered
persons” in § 107, the Act's liability section, which includes any “owner”
of “a facility.” “Facility” in turn is defned to include “any site or area
where a hazardous substance has been deposited, stored, disposed of,
or placed, or otherwise come to be located.” 42 U. S. C. § 9601(9)(B).
Because arsenic and lead are hazardous substances that have “come to
be located” on the landowners' properties, the landowners are poten-
tially responsible parties.
The landowners argue they are no longer potentially responsible
parties because the Act's six-year limitations period for recovery of re-
medial costs has run, and thus they could not be held liable in a hypo-
thetical lawsuit. But even “ `innocent' . . . landowner[s] whose land has
been contaminated by another,” and who are thus shielded from liability
by § 107(b)(3)'s so-called “innocent landowner” or “third party” defense,
“may fall within the broad defnitions of PRPs in §§ 107(a)(1)–(4).”
United States v. Atlantic Research Corp., 551 U. S. 128, 136. The same
principle holds true for parties facing no liability because of the Act's
limitations period.
Interpreting “potentially responsible parties” to include owners of
polluted property refects the Act's objective to develop a “Comprehen-
sive Environmental Response” to hazardous waste pollution. Section
122(e)(6) is one of several tools in the Act that ensures the careful devel-
opment of a single EPA-led cleanup effort rather than tens of thousands
of competing individual ones.
Yet under the landowners' interpretation, property owners would be
free to dig up arsenic-infected soil and build trenches to redirect lead-
contaminated groundwater without even notifying EPA, so long as they
have not been sued within six years of commencement of the cleanup.
Congress did not provide such a fragile remedy for such a serious
problem.
The landowners alternatively argue that they are not potentially re-
sponsible parties because they did not receive the notice of settlement

4 A
TLANTIC RICHFIELD CO. v. CHRISTIAN
Syllabus
negotiations required by § 122(e)(1). EPA has a policy of not suing in-
nocent
homeowners for pollution they did not cause, so it did not include
the landowners in settlement negotiations. But EPA's nonenforcement
policy does not alter the landowners' status as potentially responsible
parties. Section 107(a) unambiguously defnes potentially responsible
parties, and EPA does not have authority to alter that defnition.
The landowners also argue that § 122(e)(6) cannot carry the weight
ascribed to it because it is located in the section on settlement negotia-
tions. Settlements, however, are the heart of the Superfund statute.
Section 122(a) of the Act commands EPA to proceed by settlement
“[w]henever practicable and in the public interest . . . in order to expe-
dite effective remedial actions and minimize litigation.” And EPA's ef-
forts to negotiate settlement agreements and issue orders for cleanups
account for approximately 69% of all cleanup work currently underway.
Pp. 17–26.
390 Mont. 76, 408 P. 3d 515, affrmed in part, vacated in part, and
remanded.
Roberts, C. J., delivered the opinion of the Court, Parts I and II–A of
which were unanimous, Part II–B of which was joined by Thomas, Gins-
burg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., and
Part III of which was joined by Ginsburg, Breyer, Alito, Sotomayor,
Kagan, and Kavanaugh, JJ. Alito, J., fled an opinion concurring in
part and dissenting in part, post, p. 26. Gorsuch, J., fled an opinion
concurring in part and dissenting in part, in which Thomas, J., joined,
post, p. 34.
Lisa S. Blatt argued the cause for petitioner. With her
on the briefs were John S. Williams, Sarah M. Harris,
Charles L. McCloud, Robert J. Katerberg, Elisabeth S. Theo-
dore, Stephen K. Wirth, Jonathan W. Rauchway, and Shan-
non W. Stevenson.
Christopher G. Michel argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Solicitor General Francisco, Deputy Assistant
Attor ney General G rant, and Deputy So lici tor General
Stewart.
Joseph R. Palmore argued the cause for respondents.
With him on the brief were Deanne E. Maynard, Dustin C.

Cite
as: 590 U. S. 1 (2020)
5
Opinion of the Court
Elliott, James R. Sigel, Monte D. Beck, Justin P. Stalpes, J.
Da
vid Slovak, and Mark M. Kovacich.*
Chief Justice Roberts delivered the opinion of the
Court.
For nearly a century, the Anaconda Copper Smelter in
Butte, Montana contaminated an area of over 300 square
miles with arsenic and lead. Over the past 35 years, the
Environmental Protection Agency has worked with the cur-
rent owner of the smelter, Atlantic Richfeld Company, to
implement a cleanup plan under the Comprehensive Envi-
ronmental Response, Compensation, and Liability Act of
1980. EPA projects that the cleanup will continue through
2025.
A group of 98 landowners sued Atlantic Richfeld in Mon-
tana state court for common law nuisance, trespass, and
*Briefs of amici curiae urging reversal were fled for the Chamber of
Commerce of the United States of America et al. by Aaron M. Streett, J.
Mark Little, Matthew A. Haynie, Duke K. McCall, Martha S. Thomsen,
Peter C. Tolsdorf, and Leland P. Frost; for the Treasure State Resources
Association of Montana et al. by Kyle Anne Gray and William W. Mercer;
and for the Washington Legal Foundation by Corbin K. Barthold and Cory
L. Andrews.
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, Toby J. Heytens, Solicitor General, Michelle S. Kallen and Martine
E. Cicconi, Deputy Solicitors General, Donald D. Anderson, Deputy At-
torney General, and Jessica Merry Samuels, Assistant Solicitor General,
and by the Attorneys General for their respective States as follows: Xa-
vier Becerra of California, William Tong of Connecticut, Kathleen Jen-
nings of Delaware, Clare E. Connors of Hawaii, Aaron M. Frey of Maine,
Brian E. Frosh of Maryland, Jim Hood of Mississippi, Gurbir S. 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,
Bob Ferguson of Washington, and Joshua L. Kaul of Wisconsin; for the
Clark Fork Coalition et al. by Cale Jaffe and Roger Sullivan; for the Pa-
cifc Legal Foundation et al. by Jonathan Wood; and for Public Citizen by
Scott L. Nelson and Allison M. Zieve.

6 A
TLANTIC RICHFIELD CO. v. CHRISTIAN
Opinion of the Court
strict liability. Among other remedies, the landowners
sought
restoration damages, which under Montana law must
be spent on rehabilitation of the property. The landowners'
proposed restoration plan includes measures beyond those
the agency found necessary to protect human health and
the environment.
We consider whether the Act strips the Montana courts of
jurisdiction over the landowners' claim for restoration dam-
ages and, if not, whether the Act requires the landowners to
seek EPA approval for their restoration plan.
I
A
In 1980, Congress enacted the Comprehensive Environ-
mental Response, Compensation, and Liability Act, 94 Stat.
2767, as amended, 42 U. S. C. § 9601 et seq., also known as the
Superfund statute, to address “the serious environmental
and health risks posed by industrial pollution,” Burlington
N. & S. F. R. Co. v. United States, 556 U. S. 599, 602 (2009).
The Act seeks “to promote the timely cleanup of hazardous
waste sites and to ensure that the costs of such cleanup ef-
forts [are] borne by those responsible for the contamination.”
CTS Corp. v. Waldburger, 573 U. S. 1, 4 (2014) (internal quo-
tation marks omitted).
The Act directs EPA to compile and annually revise a pri-
oritized list of contaminated sites for cleanup, commonly
known as Superfund sites. 42 U. S. C. § 9605.
1
EPA may
clean those sites itself or compel responsible parties to per-
form the cleanup. §§ 9604, 9606, 9615. If the Government
performs the cleanup, it may recover its costs from responsi-
ble parties. § 9607(a)(4)(A). Responsible parties are joint-
ly and severally liable for the full cost of the cleanup,
1
The Act vests powers and duties in the President, who has delegated
the responsibilities relevant here to the EPA Administrator. See 42
U. S. C. § 9615; Exec. Order No. 12580, 3 CFR § 193 (1988).

Cite
as: 590 U. S. 1 (2020)
7
Opinion of the Court
but may seek contribution from other responsible parties.
§
9613(f )(1).
Prior to selecting a cleanup plan, EPA conducts (or orders
a private party to conduct) a remedial investigation and
feasibil ity study to assess the contami nati on and eva l-
uate cleanup options. 40 CFR § 300.430 (2019). Section
122(e)(6) of the Act provides that, once the study begins,
“no potentially responsible party may undertake any reme-
dial action” at the site without EPA approval. 42 U. S. C.
§ 9622(e)(6).
The Act prescribes extensive public consultation while a
cleanup plan is being developed. It requires an opportunity
for public notice and comment on proposed cleanup plans.
§§ 9613(k), 9617. It requires “substantial and meaningful
involvement by each State in initiation, development, and se-
lection” of cleanup actions in that State. § 9621(f )(1). And,
in most instances, it requires that remedial action comply
with “legally applicable or relevant and appropriate” re-
quirements of state environmental law. § 9621(d)(2)(A).
But once a plan is selected, the time for debate ends and
the time for action begins. To insulate cleanup plans from
collateral attack, § 113(b) of the Act provides federal district
courts with “exclusive original jurisdiction over all contro-
versies arising under” the Act, and § 113(h) then strips such
courts of jurisdiction “to review any challenges to removal
or remedial action,” except in fve limited circumstances.
§§ 9613(b), (h).
B
Between 1884 and 1902, the Anaconda Copper Mining
Company built three copper smelters 26 miles west of the
mining town of Butte, Montana. The largest one, the Wa-
shoe Smelter, featured a 585-foot smoke stack, taller than
the Washington Monument. The structure still towers over
the area today, as part of the Anaconda Smoke Stack State
Park. Together, the three smelters refned tens of millions
of pounds of copper ore mined in Butte, the “Richest Hill on

8 A
TLANTIC RICHFIELD CO. v. CHRISTIAN
Opinion of the Court
Earth,” to feed burgeoning demand for telephone wires and
power
lines. M. Malone, The Battle for Butte 34 (1981).
“It was hot. It was dirty. It was dangerous. But it was
a job for thousands.” Dunlap, A Dangerous Job That Gave
Life to a Town: A Look Back at the Anaconda Smelter, Mon-
tana Standard (Aug. 8, 2018). From 1912 to 1973, Anaconda
Company payrolls totaled over $2.5 billion, compensating
around three-quarters of Montana's work force.
Bust followed boom. By the 1970s, the falling price of
copper, an ongoing energy crisis, and the nationalization
of Anaconda's copper mines in Chile and Mexico squeezed
Anaconda. But what others saw as an ailing relic, Atlantic
Richfeld saw as a turnaround opportunity, purchasing the
Anaconda Company for the discount price of $700 million.
Unfortunately, Atlantic Richfeld was unable to revive Ana-
conda's fortunes. By 1980 Atlantic Richfeld had closed the
facility for good, and by 1984 Fortune had dubbed the pur-
chase one of the “Decade's Worst Mergers.” Fisher, The
Decade's Worst Mergers, Fortune, Apr. 30, 1984, p. 262.
Atlantic Richfeld's troubles were just beginning. After
Congress passed the Superfund statute in 1980, Atlantic
Richfeld faced strict and retroactive liability for the many
tons of arsenic and lead that Anaconda had spewed across
the area over the previous century. In 1983, EPA desig-
nated an area of more than 300 square miles around the
smelters as one of the inaugural Superfund sites. 48 Fed.
Reg. 40667. In the 35 years since, EPA has managed an
extensive cleanup at the site, working with Atlantic Richfeld
to remediate more than 800 residential and commercial prop-
erties; remove 10 million cubic yards of tailings, mine waste,
and contaminated soil; cap in place 500 million cubic yards of
waste over 5,000 acres; and reclaim 12,500 acres of land.
EPA, Superfund Priority “Anaconda” 9 (Apr. 2018), https://
semspub.epa.gov/work/08/100003986.pdf. To date, Atlantic
Richfeld estimates that it has spent roughly $450 million
implementing EPA's orders.

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as: 590 U. S. 1 (2020)
9
Opinion of the Court
More work remains. As of 2015, EPA's plan anticipated
cleanup
of more than 1,000 additional residential yards, re-
vegetation of 7,000 acres of uplands, removal of several
waste areas, and closure of contaminated stream banks and
railroad beds. Brief for United States as Amicus Curiae
7–8 (citing EPA, Fifth Five-Year Review Report: Anaconda
Smelter Superfund Site, Anaconda-Deer Lodge County, Mon-
tana, Table 10–1 (Sept. 25, 2015), https://semspub.epa.gov/
work/08/1549381.pdf ). EPA projects that remedial work
will continue through 2025. Id., Table 10–7; Tr. of Oral
Arg. 30.
C
In 2008, a group of 98 owners of property within the Su-
perfund site fled this lawsuit against Atlantic Richfeld in
Montana state court, asserting trespass, nuisance, and strict
liability claims under state common law. The landowners
sought restoration damages, among other forms of relief.
Under Montana law, property damages are generally
measured by the “difference between the value of the prop-
erty before and after the injury, or the diminution in value.”
Sunburst School Dist. No. 2 v. Texaco, Inc., 338 Mont. 259,
269, 165 P. 3d 1079, 1086 (2007). But “when the damaged
property serves as a private residence and the plaintiff has
an interest in having the property restored, diminution in
value will not return the plaintiff to the same position as before
the tort.” Id., at 270, 165 P. 3d, at 1087. In that circum-
stance, the plaintiff may seek restoration damages, even if
they exceed the property's diminution in value. See ibid.;
Restatement (Second) of Torts § 929, and Comment b (1977).
To collect restoration damages, a plaintiff must demon-
strate that he has “reasons personal” for restoring the prop-
erty and that his injury is temporary and abatable, meaning
“[t]he ability to repair [the] injury must be more than a theo-
retical possibility.” Sunburst School Dist. No. 2, 338 Mont.,
at 269, 165 P. 3d, at 1086–1087. The injured party must “es-
tablish that the award actually will be used for restoration.”

10 A
TLANTIC RICHFIELD CO. v. CHRISTIAN
Opinion of the Court
Lampi v. Speed, 362 Mont. 122, 130, 261 P. 3d 1000, 1006
(2011).
The
landowners here propose a restoration plan that goes
beyond EPA's own cleanup plan, which the agency had found
“protective of human health and the environment.” EPA,
Community Soils Operable Unit, Record of Decision (1996),
App. 62. See also 42 U. S. C. § 9621(d)(1). For example, the
landowners propose a maximum soil contamination level of
15 parts per million of arsenic, rather than the 250 parts
per million level set by EPA. And the landowners seek to
excavate offending soil within residential yards to a depth of
two feet rather than EPA's chosen depth of one. The land-
owners also seek to capture and treat shallow groundwater
through an 8,000-foot long, 15-foot deep, and 3-foot wide un-
derground permeable barrier, a plan the agency rejected as
costly and unnecessary to secure safe drinking water.
The landowners estimate that their cleanup would cost At-
lantic Richfeld $50 to $58 million. Atlantic Richfeld would
place that amount in a trust and the trustee would release
funds only for restoration work.
In the trial court, Atlantic Richfeld and the landowners
fled competing motions for summary judgment on whether
the Act precluded the landowners' claim for restoration dam-
ages.
2
The court granted judgment for the landowners on
that issue and allowed the lawsuit to continue. After grant-
ing a writ of supervisory control, the Montana Supreme
Court affrmed. Atlantic Richfeld Co. v. Montana Second
Jud. Dist. Ct., 390 Mont. 76, 408 P. 3d 515 (2017).
The Montana Supreme Court rejected Atlantic Richfeld's
argument that § 113 stripped the Montana courts of jurisdic-
2
Atlantic Richfeld concedes that the Act preserves the landowners'
claims for other types of compensatory damages under Montana law, in-
cluding loss of use and enjoyment of property, diminution of value, inciden-
tal and consequential damages, and annoyance and discomfort. See At-
lantic Richfeld Co. v. Montana Second Jud. Dist. Ct., 390 Mont. 76, 79,
408 P. 3d 515, 518 (2017). We therefore consider only the landowners'
claim for restoration damages.

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as: 590 U. S. 1 (2020)
11
Opinion of the Court
tion over the landowners' claim for restoration damages.
The
court recognized that § 113 strips federal courts (and, it
was willing to assume, state courts) of jurisdiction to review
challenges to EPA cleanup plans. But the Montana Su-
preme Court reasoned that the landowners' plan was not
such a challenge because it would not “stop, delay, or change
the work EPA is doing.” Id., at 83, 408 P. 3d, at 520. The
landowners were “simply asking to be allowed to present
their own plan to restore their own private property to a
jury of twelve Montanans who will then assess the merits of
that plan.” Id., at 84, 408 P. 3d, at 521.
The Montana Supreme Court also rejected Atlantic Rich-
feld's argument that the landowners were potentially re-
sponsible parties (sometimes called PRPs) prohibited from
t ak i ng remedia l ac ti on w ithout EPA approva l under
§ 122(e)(6) of the Act. The Court observed that the land-
owners had “never been treated as PRPs for any purpose—
by either EPA or [Atlantic Richfeld]—during the entire
thirty-plus years” since the designation of the Superfund
site, and that the statute of limitations for a claim against
the landowners had run. Id., at 86, 408 P. 3d, at 522. “Put
simply, the PRP horse left the barn decades ago.” Ibid.
Justice Baker concurred, stressing that on remand Atlantic
Richfeld could potentially defeat the request for restoration
damages on the merits by proving that the restoration plan
conficted with EPA's cleanup plan. Id., at 87–90, 408 P. 3d,
at 523–525. Justice McKinnon dissented. She argued that
the landowners' restoration plan did confict with the Super-
fund cleanup and thus constituted a challenge under § 113(h)
of the Act, over which Montana courts lacked jurisdiction.
Id., at 90–101, 408 P. 3d, at 525–532.
We granted certiorari. 587 U. S. 1050 (2019).
II
We begin with two threshold questions: whether this
Court has jurisdiction to review the decision of the Mon-
tana Supreme Court and, if so, whether the Montana courts

12 A
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Opinion of the Court
have jurisdiction over the landowners' claim for restoration
damages.
A
Congress
has authorized this Court to review “[f]inal judg-
ments or decrees rendered by the highest court of a State.”
28 U. S. C. § 1257(a). To qualify as fnal, a state court judg-
ment must be “an effective determination of the litigation
and not of merely i nter locutory or i nter mediate steps
therein.” Jefferson v. City of Tarrant, 522 U. S. 75, 81
(1997). The landowners contend that, because the Montana
Supreme Court allowed the case to proceed to trial, its judg-
ment was not fnal and we lack jurisdiction.
But the Montana Supreme Court exercised review in this
case through a writ of supervisory control. Under Montana
law, a supervisory writ proceeding is a self-contained case,
not an interlocutory appeal. Mont. Const., Art. VII, §§ 2(1)–
(2); Mont. Rules App. Proc. 6(6), 14(1), 14(3) (2019). Thus
we have held that a “writ of supervisory control issued
by the Montana Supreme Court is a fnal judgment within
our jurisdiction.” Fisher v. District Court of Sixteenth
Judicial Dist. of Mont., 424 U. S. 382, 385, n. 7 (1976) (per
curiam).
The landowners protest that our precedents only support
reviewing supervisory writ proceedings that are limited to
jurisdictional questions. But the scope of our jurisdiction
to review supervisory writ proceedings is not so restricted.
When the Montana Supreme Court issues a writ of supervi-
sory control, it initiates a separate lawsuit. It is the nature
of the Montana proceeding, not the issues the state court
reviewed, that establishes our jurisdiction.
B
We likewise fnd that the Act does not strip the Montana
courts of jurisdiction over this lawsuit. It deprives state
courts of jurisdiction over claims brought under the Act.

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Opinion of the Court
But it does not displace state court jurisdiction over claims
brought
under other sources of law.
3
Section 113(b) of the Act provides that “the United States
district courts shall have exclusive original jurisdiction over
all controversies arising under this chapter,” so state courts
lack jurisdiction over such actions. 42 U. S. C. § 9613(b).
This case, however, does not “arise under” the Act. The use
of “arising under” in § 113(b) echoes Congress's more familiar
use of that phrase in granting federal courts jurisdiction over
“all civil actions arising under the Constitution, laws, or trea-
ties of the United States.” 28 U. S. C. § 1331. In the mine
run of cases, “[a] suit arises under the law that creates the
cause of action.” American Well Works Co. v. Layne &
Bowler Co., 241 U. S. 257, 260 (1916).
4
The landowners' com-
mon law claims for nuisance, trespass, and strict liability
therefore arise under Montana law and not under the Act.
As a result, the Montana courts retain jurisdiction over this
3
Justice Alito argues that this jurisdictional question “may turn out
not to matter in this case” because we remand for further proceedings
that may end the litigation. Post, at 27 (opinion concurring in part and
dissenting in part). But Atlantic Richfeld seeks more than a remand. It
contends that the lawsuit should be dismissed because the Montana courts
lack jurisdiction, and the Federal Government agrees. The difference be-
tween outright dismissal and further proceedings matters. We granted
review of this issue and both parties have fully briefed and argued it.
Simply leaving the question unanswered at this point would leave the
parties in a state of uncertainty as to whether the litigation is proceeding
in the proper forum. We therefore fnd it both “necessary” and “prudent”
to decide the issue. Post, at 26.
4
There is a “special and small category of cases” that originate in state
law yet still arise under federal law for purposes of federal question juris-
diction. Gunn v. Minton, 568 U. S. 251, 258 (2013) (internal quotation
marks omitted). To qualify for this narrow exception, a state law claim
must “necessarily raise[ ]” a federal issue, among other requirements.
Ibid. No element of the landowners' state common law claims necessarily
raises a federal issue. Atlantic Richfeld raises the Act as an affrmative
defense, but “[f]ederal jurisdiction cannot be predicated on an actual or
anticipated defense.” Vaden v. Discover Bank, 556 U. S. 49, 60 (2009).

14 A
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Opinion of the Court
lawsuit, notwithstanding the channeling of Superfund claims
to
federal courts in § 113(b).
5
Atlantic Richfeld takes a different view, arguing that
§ 113(h) implicitly broadens the scope of actions precluded
from state court jurisdiction under § 113(b). Section 113(h)
states that “[n]o Federal court shall have jurisdiction under
Federal law other than under section 1332 of title 28 (relating
to diversity of citizenship jurisdiction) . . . to review any chal-
lenges to removal or remedial action” selected under the Act.
42 U. S. C. § 9613(h).
The company's argument proceeds in fve steps. Step
one: Section 113(h) removes federal court jurisdiction over
all cleanup challenges, regardless of whether they originate
in federal or state law (except for when the court is sitting
in diversity). Step two: Section 113(h) can only remove ju-
risdiction that § 113(b) provides in the frst place. Step
three: Section 113(b) thus provides federal courts jurisdic-
tion over all cleanup challenges, whether brought under fed-
eral or state law. Step four: The grant of jurisdiction to
federal courts in § 113(b) is exclusive to federal courts. Step
fve: State courts thus do not have jurisdiction over cleanup
challenges.
This interpretation faces several insurmountable obsta-
cles. First, by its own terms, § 113(h) speaks of “Federal
court[s],” not state courts. There is no textual basis for At-
lantic Richfeld's argument that Congress precluded state
courts from hearing a category of cases in § 113(b) by strip-
5
Section 113(b) specifes that federal courts have exclusive jurisdiction
“without regard to the citizenship of the parties or the amount in contro-
versy.” 42 U. S. C. § 9613(b). This is somewhat redundant because all
actions that “arise under” the Act necessarily satisfy federal question ju-
risdiction. But “[s]ometimes the better overall reading of the statute con-
tains some redundancy.” Rimini Street, Inc. v. Oracle USA, Inc., 586
U. S. 334, 346 (2019). We fnd it much more likely that Congress employed
a belt and suspenders approach to make sure that all CERCLA lawsuits
are routed to federal court than that Congress intended the reference to
federal courts in § 113(h) to affect state courts.

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Opinion of the Court
ping federal courts of jurisdiction over those cases in
§
113(h). And if that were Congress's goal, it would be hard
to imagine a more oblique way of achieving it. Often the
simplest explanation is the best: Section 113(b) deprives
state courts of jurisdiction over cases “arising under” the
Act—just as it says—while § 113(h) deprives federal courts
of jurisdiction over certain “challenges” to Superfund reme-
dial actions—just as it says.
Second, the company's argument does not account for the
exception in § 113(h) for federal courts sitting in diversity.
Section 113(h) permits federal courts in diversity cases to
entertain state law claims regardless of whether they are
challenges to cleanup plans. See DePue v. Exxon Mobil
Corp., 537 F. 3d 775, 784 (CA7 2008). But Atlantic Richfeld
does not even try to explain why the Act would permit such
state law claims to proceed in federal court, but not in
state court. The Act permits federal courts and state courts
alike to entertain state law claims, including challenges to
cleanups.
That leads us to the third diffculty with Atlantic Rich-
feld's argument. We have recognized a “deeply rooted pre-
sumption in favor of concurrent state court jurisdiction” over
federal claims. Taffin v. Levitt, 493 U. S. 455, 458–459
(1990). Only an “explicit statutory directive,” an “unmistak-
able implication from legislative history,” or “a clear incom-
patibility between state-court jurisdiction and federal inter-
ests” can displace this presumption. Id., at 460. Explicit,
unmistakable, and clear are not words that describe Atlantic
Richfeld's knotty interpretation of §§ 113(b) and (h).
It would be one thing for Atlantic Richfeld to try to sur-
mount the clear statement rule that applies to the uncom-
mon, but not unprecedented, step of stripping state courts
of jurisdiction over federal claims. But Atlantic Richfeld's
position requires a more ambitious step: Congress stripping
state courts of jurisdiction to hear their own state claims.
We would not expect Congress to take such an extraordinary

16 A
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Opinion of the Court
step by implication. Yet the only provision Atlantic Rich-
feld
invokes addresses “[f]ederal court[s]” without even
mentioning state courts, let alone stripping those courts of
jurisdiction to hear state law claims. 42 U. S. C. § 9613(h).
Finally, the Government, supporting Atlantic Richfeld,
emphasizes that the opening clause of § 113(b) excepts
§ 113( h) from its appl icati on. See 42 U. S. C. § 9613( b)
(“Except as provided in subsections (a) and (h) of this sec-
tion . . . .”). According to the Government, because “excep-
tions must by defnition be narrower than the corresponding
rule,” all challenges to remedial plans under § 113(h)—
whether based in federal or state law—must “arise under”
the Act for purposes of § 113(b). Brief for United States as
Amicus Curiae 25.
We reject the premise and with it the conclusion. “Thou-
sands of statutory provisions use the phrase `except as pro-
vided in . . . ' followed by a cross-reference in order to indi-
cate that one rule should prevail over another in any
circumstance in which the two confict.” Cyan, Inc. v. Bea-
ver County Employees Retirement Fund, 583 U. S. 416, 428
(2018). Such clauses explain what happens in the case of a
clash, but they do not otherwise expand or contract the scope
of either provision by implication. Cf. NLRB v. SW Gen-
eral, Inc., 580 U. S. 288, 302 (2017) (explaining the same prin-
ciple for “notwithstanding ” clauses).
The actions referred to in § 113(h) do not fall entirely
within § 113(b). Challenges to remedial actions under fed-
eral statutes other than the Act, for example, are precluded
by § 113(h) but do not fall within § 113(b). To cite another
example, § 113(h) addresses state law challenges to cleanup
plans in federal court, although those actions also do not fall
within § 113(b).
6
At the same time, § 113(b) is not subsumed
6
Justice Alito argues that our interpretation leaves no meaning for
the exceptions in § 113(h) for federal courts hearing state law actions while
sitting in diversity and federal courts hearing actions invoking state law

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Opinion of the Court
by § 113(h). Many claims brought under the Act, such as
those
to recover cleanup costs under § 107, are not challenges
to cleanup plans.
Sections 113(b) and 113(h) thus each do work independent
of one another. The two provisions overlap in a particular
type of case: challenges to cleanup plans in federal court that
arise under the Act. In such cases, the exceptions clause in
§ 113(b) instructs that the limitation of § 113(h) prevails. It
does nothing more.
III
Although the Montana Supreme Court answered the juris-
dictional question correctly, the Court erred by holding that
the landowners were not potentially responsible parties
under the Act and therefore did not need EPA approval to
take remedial action. Section 122(e)(6), titled “Inconsistent
response action,” provides that “[w]hen either the President,
or a potentially responsible party . . . , has initiated a reme-
dial investigation and feasibility study for a particular facil-
ity under this chapter, no potentially responsible party may
undertake any remedial action at the facility unless such re-
medial action has been authorized by the President.” 42
U. S. C. § 9622(e)(6). Both parties agree that this provision
would require the landowners to obtain EPA approval for
their restoration plan if the landowners qualify as potentially
responsible parties.
standards deemed “applicable or relevant and appropriate” by the Act.
42 U. S. C. § 9613(h). Because we read § 113(b) to cover only federal law
claims, Justice Alito assumes that these exceptions in § 113(h) would
never apply. But as we explained, § 113(h) applies to all “challenges to
removal or remedial action” that make their way into “[f]ederal court,”
whether through § 113(b) or some other route. § 9613(h). That includes
state law challenges arising by way of diversity jurisdiction or supplemen-
tal jurisdiction as well as federal law challenges arising under sources of
law other than the Act. The exceptions in § 113(h) are thus necessary to
delineate which of these challenges may proceed in federal court and
which may not.

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Opinion of the Court
To determine who is a potentially responsible party, we
look
to the list of “covered persons” in § 107, the liability
section of the Act. § 9607(a). “Section 107(a) lists four
classes of potentially responsible persons (PRPs) and pro-
vides that they `shall be liable' for, among other things,
`all costs of removal or remedial action incurred by the
United States Government.' ” Cooper Industries, Inc. v.
Aviall Services, Inc., 543 U. S. 157, 161 (2004) (quoting
§ 9607(a)(4)(A)). The frst category under § 107(a) includes
any “owner” of “a facility.” § 9607(a)(1). “Facility” is de-
fned to include “any site or area where a hazardous sub-
stance has been deposited, stored, disposed of, or placed, or
otherwise come to be located.” § 9601(9)(B). Arsenic and
lead are hazardous substances. 40 CFR § 302.4, Table 302.4.
Because those pollutants have “come to be located” on the
landowners' properties, the landowners are potentially re-
sponsible parties.
The landowners and Justice Gorsuch argue that even if
the landowners were once potentially responsible parties,
they are no longer because the Act's six-year limitations
period for recovery of remedial costs has run, and thus
they could not be held liable in a hypothetical lawsuit. 42
U. S. C. § 9613(g)(2)(B).
This argument collapses status as a potentially responsible
party with liability for the payment of response costs. A
property owner can be a potentially responsible party even
if he is no longer subject to suit in court. As we have said,
“[E]ven parties not responsible for contamination may fall
within the broad defnitions of PRPs in §§ 107(a)(1)–(4).”
United States v. Atlantic Research Corp., 551 U. S. 128, 136
(2007). That includes “ `innocent' . . . landowner[s] whose
land has been contaminated by another,” who would be
shielded from liability by the Act's so-called “innocent land-
owner” or “third party” defense in § 107(b)(3). Ibid. See
also 42 U. S. C. § 9607(b)(3). The same principle holds true
for parties that face no liability because of the Act's limita-
tions period.

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Opinion of the Court
Interpreting “potentially responsible parties” to include
owners
of polluted property refects the Act's objective to
develop, as its name suggests, a “Comprehensive Environ-
mental Response” to hazardous waste pollution. Section
122(e)(6) is one of several tools in the Act that ensures the
careful development of a single EPA-led cleanup effort
rather than tens of thousands of competing individual ones.
Yet under the landowners' interpretation, property own-
ers would be free to dig up arsenic-infected soil and build
trenches to redirect lead-contaminated groundwater without
even notifying EPA, so long as they have not been sued
within six years of commencement of the cleanup.
7
We
doubt Congress provided such a fragile remedy for such a
serious problem. And we suspect most other landowners
would not be too pleased if Congress required EPA to sue
each and every one of them just to ensure an orderly cleanup
of toxic waste in their neighborhood. A straightforward
reading of the text avoids such anomalies.
Justice Gorsuch argues that equating “potentially re-
sponsible parties” with “covered persons” overlooks the fact
that the terms “use different language, appear in different
statutory sections, and address different matters.” Post, at
40 (opinion concurring in part and dissenting in part). He
contends that “potentially responsible party” as used in
§ 122(e)(6) should be read as limited to the settlement con-
7
EPA does have other tools to address serious environmental harm.
Under § 106, for example, EPA can initiate an injunctive abatement action
if it fnds an “imminent and substantial endangerment to the public health
or welfare or the environment.” 42 U. S. C. § 9606(a). But EPA may
have good reasons to preserve the status quo of a cleanup site even absent
an imminent threat. More importantly, the landowners' interpretation
would require EPA to monitor tens of thousands of properties across 1,335
Super fund sites nati onw ide to ensure landowners do not derai l an
EPA cleanup. EPA, Superfund: National Priorities List (NPL) (Apr. 13,
2020), https://www.epa.gov/superfund/superfund-national-priorities-list-
npl. Congress provided a far more effective and efficient solution in
§ 122(e)(6): Landowners at Superfund sites containing hazardous waste
must seek EPA approval before initiating their own bespoke cleanups.

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Opinion of the Court
text, and that if Congress intended the phrase to have
broader
reach—to refer more generally to those potentially
liable under § 107(a)—then Congress would have used the
term “covered person.” Post, at 40.
But there is no reason to think Congress used these
phrases to refer to two distinct groups of persons. Neither
phrase appears among the Act's list of over 50 defned terms.
42 U. S. C. § 9601. “Covered persons,” in fact, appears in the
caption to § 107(a) and nowhere else. Meanwhile, “poten-
tially responsible parties” are referenced not just in the sec-
tion on settlements, but also in the Act's sections regarding
EPA response authority, cleanup standards and procedures,
cleanup contractors, Superfund moneys, Federal Govern-
ment cleanup sites, and civil proceedings. §§ 9604, 9605,
9611, 9613, 9619, 9620, 9622. Across the statute “potentially
responsible parties” refers to what it says: parties that may
be held accountable for hazardous waste in particular circum-
stances. The only place in the Act that identifes such per-
sons is the list of “Covered persons” in § 107(a). Congress
therefore must have intended “potentially responsible party”
in § 122(e)(6) (as elsewhere in the Act) to refer to “Covered
persons” in § 107(a).
Turning from text to consequences, the landowners warn
that our interpretation of § 122(e)(6) creates a permanent
easement on their land, forever requiring them “to get per-
mission from EPA in Washington if they want to dig out part
of their backyard to put in a sandbox for their grandchil-
dren.” Tr. of Oral Arg. 62. The grandchildren of Montana
can rest easy: The Act does nothing of the sort.
Section 122(e)(6) refers only to “remedial action,” a defned
term in the Act encompassing technical actions like “storage,
confnement, perimeter protection using dikes, trenches, or
ditches, clay cover, neutralization, cleanup of released haz-
ardous substances and associated contaminated materials,”
and so forth. 42 U. S. C. § 9601(24). While broad, the Act's
defnition of remedial action does not reach so far as to cover

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Opinion of the Court
planting a garden, installing a lawn sprinkler, or digging a
sandbox.
In addition, § 122(e)(6) applies only to sites on the
Superfund list. The Act requires EPA to annually review
and reissue that list. § 9605(a)(8)(B). EPA delists Super-
fund sites once responsible parties have taken all appropriate
remedial action and the pollutant no longer poses a signif-
cant threat to public health or the environment. See 40
CFR § 300.425(e).
The landowners and Justice Gorsuch a lter natively
argue that the landowners are not potentially responsible
parties because they did not receive the notice of settlement
negotiations required by § 122(e)(1). Under a policy dating
back to 1991, EPA does not seek to recover costs from resi-
dential landowners who are not responsible for contamina-
tion and do not interfere with the agency's remedy. EPA,
Policy Towards Owners of Residential Property at Su-
perfund Sites, OSWER Directive #9834.6 (July 3, 1991),
https://www.epa.gov/sites/production/fles/documents/policy-
owner-rpt.pdf. EPA views this policy as an exercise of its
“enforcement discretion in pursuing potentially responsible
parties.” Id., at 3. Because EPA has a policy of not suing
innocent homeowners for pollution they did not cause, it did
not include the landowners in settlement negotiations.
But EPA's nonenforcement policy does not alter the land-
owners' status as potentially responsible parties. Section
107(a) unambiguously defnes potentially responsible parties
and EPA does not have authority to alter that defnition.
See, e. g., Sturgeon v. Frost, 587 U. S. 28, 46, n. 3 (2019). Sec-
tion 122(e)(1) requires notifcation of settlement negotiations
to all potentially responsible parties. To say that provision
determines who is a potentially responsible party in the frst
instance would render the Act circular. Even the Govern-
ment does not claim that its decisions whether to send no-
tices of settlement negotiations carry such authority.
In short, even if EPA ran afoul of § 122(e)(1) by not provid-
ing the landowners notice of settlement negotiations, that

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Opinion of the Court
does not change the landowners' status as potentially respon-
sible
parties.
The landowners relatedly argue that the limitation in
§ 122(e)(6) on remedial action by potentially responsible par-
ties cannot carry the weight we assign to it because it is
located in the Act's section on settlement negotiations. Con-
gress, we are reminded, does not “hide elephants in mouse-
holes.” Whitman v. American Trucking Assns., Inc., 531
U. S. 457, 468 (2001).
We take no issue with characterizing § 122(e)(6) as an ele-
phant. It is, after all, one of the Act's crucial tools for ensur-
ing an orderly cleanup of toxic waste. But § 122 of the Act
is, at the risk of the tired metaphor spinning out of control,
less a mousehole and more a watering hole—exactly the sort
of place we would expect to fnd this elephant.
Settlements are the heart of the Superfund statute.
EPA's efforts to negotiate settlement agreements and issue
orders for cleanups account for approximately 69% of all clean-
up work currently underway. EPA, Superfund Site Cleanup
Work Through Enforcement Agreements and Orders, https://
www.epa.gov/enforcement/superfund-site-cleanup-work-
through-enforcement-agreements-and-orders. The Act com-
mands EPA to proceed by settlement “[w]henever practi-
cable and in the public interest . . . in order to expedite
effective remedial actions and minimize litigati on. ” 42
U. S. C. § 9622(a). EPA, for its part, “prefers to reach an
agreement with a potentially responsible party (PRP) to
clean up a Superfund site instead of issuing an order or
paying for it and recovering the cleanup costs later.” EPA,
Negotiating Superfund Settlements, https://www.epa.gov/
enforcement/negotiating-superfund-settlements.
The Act encourages potentially responsible parties to
enter into such agreements by authorizing EPA to include a
“covenant not to sue,” which caps the parties' liability to the
Government. § 9622(c)(1). The Act also protects settling
parties from contribution claims by other potentially respon-

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Opinion of the Court
sible parties. § 9613(f )(2). Once fnalized, the terms of a
settlement
become legally binding administrative orders,
subject to civil penalties of up to $25,000 a day. §§ 9609(a)
(1)(E), 9622(l).
Moreover, subsection (e) is an important component of
§ 122. It establishes a reticulated scheme of notices, propos-
als, and counterproposals for the settlement negotiation
process. § 9622(e). And the subsection places a morato-
rium on EPA remedial actions while negotiations are under
way. § 9622(e)(2)(A). It is far from surprising to fnd an
analogous provision restricting potentially responsible par-
ties from taking remedial actions in the same subsection.
Justice Gorsuch also contends that our interpretation
violates the Act's “saving clauses,” which provide that the
Act does not preempt liability or requirements under state
law. Post, at 36–37. But we have long rejected interpreta-
tions of sweeping saving clauses that prove “absolutely
inconsistent with the provisions of the act” in which they
are found. American Telephone & Telegraph Co. v. Central
Offce Telephone, Inc., 524 U. S. 214, 228 (1998) (quoting
Texas & Pacifc R. Co. v. Abilene Cotton Oil Co., 204 U. S.
426, 446 (1907)). Interpreting the Act's saving clauses to
erase the clear mandate of § 122(e)(6) would allow the Act
“to destroy itself.” Ibid.
What is more, Atlantic Richfeld remains potentially liable
under state law for compensatory damages, including loss of
use and enjoyment of property, diminution of value, inciden-
tal and consequential damages, and annoyance and discom-
fort. The damages issue before the Court is whether At-
lantic Richfeld is also liable for the landowners' own
remediation beyond that required under the Act. Even
then, the answer is yes—so long as the landowners frst ob-
tain EPA approval for the remedial work they seek to
carry out.
We likewise resist Justice Gorsuch's evocative claim
that our reading of the Act endorses “paternalistic central

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Opinion of the Court
planning ” and turns a cold shoulder to “state law efforts to
restore
state lands.” Post, at 43. Such a charge fails to
appreciate that cleanup plans generally must comply with
“legally applicable or relevant and appropriate” standards of
state environmental law. 42 U. S. C. § 9621(d)(2)(A). Or
that States must be afforded opportunities for “substantial
and meaningful involvement” in initiating, developing, and
selecting cleanup plans. § 9621(f )(1). Or that EPA usually
must defer initiating a cleanup at a contaminated site that a
State is already remediating. § 9605(h). It is not “pater-
nalistic central planning ” but instead the “spirit of coopera-
tive federalism [that] run[s] throughout CERCLA and its
regulations.” New Mexico v. General Elec. Co., 467 F. 3d
1223, 1244 (CA10 2006).
As a last ditch effort, the landowners contend that, even if
§ 107(a) defnes potentially responsible parties, they qualify
as contiguous property owners under § 107(q), which would
pull them outside the scope of § 107(a). The landowners are
correct that contiguous property owners are not potentially
responsible parties. Section 107(q)(1)(A) provides that “[a]
person that owns real property that is contiguous to or oth-
erwise similarly situated with respect to, and that is or may
be contaminated by a release or threatened release of a
hazardous substance from, real property that is not owned
by that person shall not be considered” an owner of a facil-
ity under § 107(a). § 9607(q)(1)(A). The problem for the
landowners is that there are eight further requirements to
qualify as a contiguous property owner. §§ 9607(q)(1)(A)(i)–
(viii). Each landowner individually must “establish by a
preponderance of the evidence” that he satisfes the crite-
ria. § 9607(q)(1)(B).
The landowners cannot clear this high bar. One of the
eight requirements is that, at the time the person acquired
the property, the person “did not know or have reason to
know that the property was or could be contaminated by
a release or threatened release of one or more hazardous

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Opinion of the Court
substances.” § 9607(q)(1)(A)(viii)(II). All of the landown-
ers
here purchased their property after the Anaconda Com-
pany built the Washington Monument sized smelter. Indeed
“evidence of public knowledge” of contamination was “almost
overwhelming.” Christian v. Atlantic Richfeld Co., 380
Mont. 495, 529, 358 P. 3d 131, 155 (2015). In the early 1900s,
the Anaconda Company actually obtained smoke and tailing
easements authorizing the disposition of smelter waste onto
many properties now owned by the landowners. Id., at 500–
501, 358 P. 3d, at 137–138. The landowners had reason to
know their property “could be contaminated by a release or
threatened release” of a hazardous substance. 42 U. S. C.
§ 9607(q)(1)(A)(viii)(II).
At any rate, contiguous landowners must provide “full co-
operation, assistance, and access” to EPA and those carrying
out Superfund cleanups in order to maintain that status.
§ 9607(q)(1)(A)(iv). But the Government has represented
that the landowners' restoration plan, if implemented, would
interfere with its cleanup by, for example, digging up con-
t ami nated soi l that has been del iberately capped i n
place. See Brief for United States as Amicus Curiae 20–
21. If that is true, the landowners' plan would soon trigger
a lack of cooperation between EPA and the landowners. At
that point, the landowners would no longer qualify as contig-
uous landowners and we would be back to square one.
***
The Montana Supreme Court erred in holding that the
landowners were not potentially responsible parties under
§ 122(e)(6) and therefore did not need to seek EPA approval.
Montana law requires that “an award of restoration damages
actually . . . be used to repair the damaged property.” Sun-
burst School Dist. No. 2, 338 Mont., at 273, 165 P. 3d, at 1089.
But such action cannot be taken in the absence of EPA ap-
proval. That approval process, if pursued, could ameliorate
any confict between the landowners' restoration plan and

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EPA's Superfund cleanup, just as Congress envisioned. In
the
absence of EPA approval of the current restoration plan,
we have no occasion to entertain Atlantic Richfeld's claim
that the Act otherwise preempts the plan.
The judgment of the Montana Supreme Court is affrmed
in part and vacated in part. The case is remanded for fur-
ther proceedings not inconsistent with this opinion.
It is so ordered.
Justice Alito, concurring in part and dissenting in part.
I agree with the Court that the judgment below must be
reversed, and I join all of the Court's opinion except Part
II–B. I thus agree with the Court that we possess jurisdic-
tion to decide this case. See ante, at 12. I also agree that
the landowners are potentially responsible parties under
§ 122(e)(6) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA) and, as
a result, cannot bring their Montana restoration damages
claim without the consent of the Environmental Protection
Agency (EPA). See ante, at 17–25. At this point, however,
I am not willing to endorse the Court's holding in Part II–B
that state courts have jurisdiction to entertain “challenges”
to EPA-approved CERCLA plans.
I
I would not decide that question because it is neither nec-
essary nor prudent for us to do so. As I understand the
Court's opinion, the Montana Supreme Court has two options
on remand: (1) enter a stay to allow the landowners to seek
EPA approval or (2) enter judgment against the landowners
on their restoration damages claim without prejudice to their
ability to refle if they obtain EPA approval. Either way,
the case cannot proceed without the EPA's blessing. And
because the EPA has submitted multiple flings indicating
that it believes that the landowners' plan presents serious

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27
Opinion of Alito, J.
environmental risks, it is likely that the EPA will not ap-
prove
that plan, and the case will then die. If that happens,
the question of the state courts' jurisdiction will be academic.
Alternatively, if the EPA approves the landowners' plan,
either in full or to a degree that they fnd satisfactory, they
may not wish to press this litigation. And if they do choose
to go forward, the question of state-court jurisdiction can be
decided at that time.
For these reasons, there is no need to reach out and decide
the question now,
1
and there are good reasons not to do so.
While the question of state-court jurisdiction may turn out
not to matter in this case, that question may have important
implications in other cases. Specifcally, if the fears ex-
pressed by the Government materialize, state courts and ju-
ries, eager to serve local interests, may disregard the EPA's
expert judgment regarding the best plan for a CERCLA site
and may mandate relief that exacerbates environmental
problems. See Brief for United States as Amicus Curiae
20–22, 29–30; App. to Pet. for Cert. 72a–74a. Thus, much is
potentially at stake, and the question whether CERCLA
allows state courts to entertain suits like the one in this case
depends on the interpretation of devilishly diffcult statutory
provisions, CERCLA §§ 113(b) and (h), 42 U. S. C. §§ 9613(b)
and (h).
With much at stake, we should be confdent that our an-
swer is correct, and we have no basis for such confdence
here. The question of state-court jurisdiction is only one of
many in this case, and the briefng and argument on that
issue left important questions without fully satisfactory an-
1
We may not decide the merits of a case without assuring ourselves that
we have jurisdiction, Steel Co. v. Citizens for Better Environment, 523
U. S. 83, 94–95 (1998), but nothing requires us to decide whether the Mon-
tana courts have jurisdiction before remanding, see S. Shapiro et al.,
Supreme Court Practice § 3.26, p. 3–94 (11th ed. 2019); cf. Andresen v.
Maryland, 427 U. S. 463, 469, n. 4 (1976) (declining to address question
presented “does not, of course, affect our jurisdiction”).

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swers. The Court tries to clear up what § 113 means, but as
I
will attempt to show, the Court's interpretation presents
serious problems. Under these circumstances, the better
course is not to decide this perplexing question at this
juncture.
II
A
CERCLA § 113 is like a puzzle with pieces that are exceed-
ingly diffcult, if not impossible, to ft together. Here is
what these provisions say, with language that is not perti-
nent for present purposes omitted:
“(b) Jurisdiction; venue
“Except as provided in subsectio[n] . . . (h) of this sec-
tion [and another provision not relevant for present pur-
poses], the United States district courts shall have
exclusive original jurisdiction over all controversies
arising under this chapter, without regard to the citizen-
ship of the parties or the amount in controversy. . . .
.....
“(h) Timing of review
“No Federal court shall have jurisdiction under Fed-
eral law other than under section 1332 of title 28 (relat-
ing to diversity of citizenship jurisdiction) or under
State law which is applicable or relevant and appro-
priate under section 9621 of this title [CERCLA § 121,
42 U. S. C. § 9621] (relating to cleanup standards) to re-
view any challenges to removal or remedial action se-
lected under section 9604 of this title, or to review any
order issued under section 9606(a) of this title [concern-
ing emergency measures ordered by the President], in
any action except one of [a list of specifc CERCLA pro-
visions].” 42 U. S. C. § 9613.

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For present purposes, the pertinent parts are as follows:
•
First, § 113(b) sets out a general rule conferring on the
federal district courts exclusive jurisdiction over claims
“arising under” CERCLA. And it does so “without re-
gard to the citizenship of the parties or the amount in
controversy.”
• Second, §§ 113(b) and (h), taken together, reduce this
grant of jurisdiction by taking away jurisdiction over
most claims that “challeng[e]” a “removal or remedial
action.”
• Third, this reduction does not apply to a challenge to
removal or remedial action if it is brought under the di-
versity jurisdiction statute, 28 U. S. C. § 1332.
• Fourth, this reduction also does not apply to a challenge
to removal or remedial action if it is brought in federal
court “under State law which is applicable or relevant
and appropriate under [§ 121] (relating to cleanup stand-
ards).” Under § 121, cleanup standards must comply
with certain state-law requirements, and thus the thrust
of this last provision seems to be that a removal or reme-
dial action may be challenged in federal court for non-
compliance with such requirements.
With these pieces laid out, we may consider how the Court
and respondents, on the one hand, and the Government and
petitioner, on the other, try to ft them together.
B
The logical frst step in any effort to understand how
§§ 113(b) and (h) apply to the landowners' state-law restora-
tion damages claim is to determine whether the claim falls
within the scope of the exclusive jurisdiction that § 113(b)
confers on the federal district courts—in other words,
whether such a claim is one that “aris[es] under” CERCLA.
If it does not, then that ends the inquiry. And that is what
the Court holds. Ante, at 12–14.

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The Court interprets the phrase “arising under” in § 113(b)
to
mean the same thing as that phrase means in the federal-
question jurisdiction statute, 28 U. S. C. § 1331. Under that
provision, as the Court puts it, “[i]n the mine run of cases,
`[a] suit arises under the law that creates the cause of ac-
tion.' ” Ante, at 13 (quoting American Well Works Co. v.
Layne & Bowler Co., 241 U. S. 257, 260 (1916)). Thus, the
Court concludes, a claim arises under CERCLA only if it is
based on CERCLA, and since the landowners' restoration
damages claim is based on Montana law, it is obviously not
based on CERCLA and does not fall within the exclusive
jurisdiction conferred on the district courts by § 113(b).
This makes short work of the question of state-court juris-
diction, but it presents serious problems.
First, it cannot explain why § 113(b) says that the jurisdic-
tion it confers is “without regard to the citizenship of the
parties or the amount in controversy.” If that jurisdiction
is limited to claims that are based on CERCLA, district
courts have jurisdiction to entertain all those claims under
28 U. S. C. § 1331, which does not require either diversity or
any minimum amount in controversy. So why go out of the
way to say that § 113(b) jurisdiction does not require diver-
sity or any minimum amount in controversy? The only logi-
cal reason is to ensure that the provision covers suits that
could not be brought under 28 U. S. C. § 1331. Thus, § 113(b)
jurisdiction must be broader than general federal-question
jurisdiction. By denying this, the Court's interpretation
turns the phrase “without regard to the citizenship of the
parties or the amount in controversy” into a meaningless and
useless appendage.
Second, under the Court's interpretation, there is no rea-
son why § 113(h) should specify that its reduction of the scope
of the jurisdiction conferred by § 113(b) does not affect a
district court's jurisdiction in diversity cases. If the juris-
diction granted by § 113(b) is limited to claims based on

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Opinion of Alito, J.
CERCLA, why would anyone think that it had any impact
on
state-law claims?
2
Third, if the jurisdiction conferred by § 113(b) is limited to
claims based on CERCLA, it is unclear how a district court
could entertain a claim “under State law which is applicable
or relevant and appropriate under [§ 121] (relating to cleanup
standards).” Yet § 113(h) exempts such a claim from its gen-
eral withdrawal of jurisdiction over challenges to removal or
remedial action. It seems clear that Congress did not re-
gard these claims as claims under CERCLA itself, since it
describes them as “under State law” and did not include
them on the list of claims under CERCLA that it likewise
exempted from § 113(h)'s general withdrawal of jurisdiction
over challenges to removal or remedial action. §§ 113(h)(1)–
(5). These three problems raise serious doubt about the
correctness of the Court's interpretation.
3
2
The Court answers that §§ 113(b) and (h), though partially overlapping,
are “independent” of each other. Ante, at 16–17, and n. 6. But this con-
clusion rests on an uneasy premise: that § 113(b) pertains only to causes
of action based on CERCLA. There is reason to doubt that this is the
best reading of the statute. See supra, at 30 and this page.
3
The Court chalks up § 113(b)'s references to amount in controversy and
party citizenship to a “belt and suspenders” approach. Ante, at 14, n. 5.
As the Court sees it, Congress must have wanted to make especially clear
that “all CERCLA lawsuits,” no matter the amount in dispute or the
citizenship of the parties, would be welcome in (and limited to) those
courts. Ibid.
It is true that “instances of surplusage are not unknown” in federal
statutes. Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S.
291, 299, n. 1 (2006). But it is also the case that the Court usually seeks
to “avoid a reading which renders some words altogether redundant.”
Gustafson v. Alloyd Co., 513 U. S. 561, 574 (1995). In interpreting § 113,
one way to avoid redundancy is to acknowledge the interlocking relation-
ship between §§ 113(b) and (h). Section 113(b) refers to the hallmarks of
diversity jurisdiction (amount in controversy and diversity), and § 113(h)
makes clear that its clawback of jurisdiction over some “challenges”
to EPA plans does not affect state-law claims that satisfy 28 U. S. C.
§ 1332.

32 A
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Opinion of Alito, J.
C
The
Government and petitioner advance a different inter-
pretation of §§ 113(b) and (h), and although this interpreta-
tion solves the problems noted above, it has problems of its
own. The Court, as noted, runs into trouble by interpreting
the phrase “arising under” CERCLA in § 113(b) to mean
what “arising under” means in 28 U. S. C. § 1331. The Gov-
ernment obviates this diffculty by arguing that “arising
under” in § 113(b) has a broader meaning, such as the mean-
ing of the same phrase in Article III of the Constitution.
See Brief for United States as Amicus Curiae 23–24. The
Government suggests that “arising under” in § 113(b) may
reach “ `any case or controversy that might call for the appli-
cation of federal law.' ” Id., at 24 (quoting Verlinden B. V.
v. Central Bank of Nigeria, 461 U. S. 480, 492 (1983)). If
§ 113(b) uses the phrase in something like this sense, the ju-
risdiction it confers can reach some claims under state law,
and that would explain § 113(b)'s specifcation that this juris-
diction is not dependent on either diversity or amount in con-
troversy. In other words, this language makes clear that
federal district courts have jurisdiction to hear these state-
law claims without the restrictions that usually apply when
federal courts entertain such claims.
Up to this point, the interpretation favored by the Govern-
ment and petitioner proceeds smoothly, but it stumbles when
it moves from § 113(b) to § 113(h). That provision reduces
the grant of jurisdiction in § 113(b) by taking away jurisdic-
tion over challenges to removal and remedial action unless,
among other things, those claims are brought in a diversity
action. The upshot is that federal district courts are left
with jurisdiction over most state-law claims that challenge
removal and remedial action only where the parties are di-
verse.
4
If it turns out that diversity is lacking, the district
4
They also retain jurisdiction over claims “under State law which is
applicable or relevant and appropriate under [§ 121] (relating to cleanup
standards).” § 113(h).

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Opinion of Alito, J.
courts cannot entertain the same claims. And not only that.
Because
§ 113(b)'s grant of jurisdiction to the federal district
courts is exclusive, the state courts cannot entertain those
claims either.
It is hard to fathom why Congress might have wanted such
a scheme. Congress might have wanted all the state-law
claims covered by § 113(b) to be heard exclusively in federal
court in order to prevent state courts and juries from unduly
favoring home-state interests. But having granted the fed-
eral district courts jurisdiction to hear these claims in
§ 113(b), why would Congress take away that jurisdiction in
cases where the parties happen not to be diverse? And why
would Congress go further and prevent the state courts from
hearing these claims? The Government and petitioner pro-
vide no answer, and none is apparent.
III
The Court gives three reasons for resolving the question
of state-court jurisdiction. See ante, at 13, n. 3. None is
compelling.
First, the Court explains that “Atlantic Richfeld seeks
more than a remand,” namely, it seeks a remand with in-
structions to dismiss on jurisdictional grounds. Ibid. But
Atlantic Richfeld presented its § 122(e)(6) theory as an alter-
nate ground for reversal, and has prevailed on that basis.
As Atlantic Richfeld's counsel stated at argument, the
§ 122(e)(6) ruling is “suffcient to resolve the case.” Tr. of
Oral Arg. 17–18.
Second, the Court says, “leaving the [§ 113] question unan-
swered . . . would leave the parties in a state of uncertainty.”
Ante, at 13, n. 3. But, as described above, there appears to
be a slim chance that this case will, at least in its current
state, “procee[d]” in the Montana courts. Ibid.
Third, the Court suggests that the grant of review,
briefng, and argument on § 113 may warrant resolving the
question of state-court jurisdiction. Ibid. But that presen-

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Opinion of Gorsuch, J.
tation has not cleared up serious issues surrounding §§ 113(b)
and
(h). And sunk costs cannot justify a departure from our
usual practice of “deciding only what is necessary to the dis-
position of the immediate case.” Whitehouse v. Illinois
Central R. Co., 349 U. S. 366, 373 (1955).
***
Section 113 may simply be a piece of very bad draftsman-
ship, with pieces that cannot be made to ft together. Or it
may be a puzzle with a solution that neither the parties, the
Court, nor I have been able to solve. In a later case,
briefng and argument may provide answers that have thus
far eluded us. Since we are not required to attempt an an-
swer in this case, the prudent course is to hold back.
Justice Gorsuch, with whom Justice Thomas joins,
concurring in part and dissenting in part.
For nearly a century, Atlantic Richfeld's predecessor oper-
ated a smelter near the town of Opportunity, Montana. At
one time, the smelter produced much of the Nation's copper
supply and served as the State's largest employer. App.
311. Eventually, though, it became apparent the smelter
was producing more than just copper and jobs. Studies
showed that the plant emitted up to 62 tons of arsenic and
10 tons of lead each day. Brief for Respondents 7. Thanks
to what was once the world's tallest brick smokestack, these
heavy metals blanketed the town and the whole of the Deer
Lodge Valley—contaminating hundreds of square miles.
Today, the smokestack is all that is left of the once massive
operation. It stands alone in a state park, much of which
remains dangerously contaminated and closed to the public.
Visitors may view the stack, but only from a distance,
through fences and between huge slag piles. Id., at 9.
This case involves nearly 100 nearby residents. Some
have lived in their homes for decades, some long before the
environmental consequences of the smelter were fully ap-

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Opinion of Gorsuch, J.
preciated. They say they have thought about moving, but
for
many their property values aren't what they once were.
Besides, as one homeowner put it, “I couldn't fnd a kitchen
door that's got all my kids' heights on it.” Id., at 8.
The federal government has tried to help in its own way.
In 1983, the government designated the 300-square-mile area
surrounding the smelter a Superfund site under the Compre-
hensive Environmental Response, Compensation, and Liabil-
ity Act of 1980 (CERCLA), 94 Stat. 2767, as amended, 42
U. S. C. § 9601 et seq. After years of study and negotiation,
the government ordered Atlantic Richfeld to remove up to
18 inches of soil in residential yards with arsenic levels ex-
ceeding 250 parts per million (ppm). App. 94–95. For so-
called “pasture land”—that is, nearly everything else—the
government set the threshold for soil removal at 1,000 ppm.
Brief for Respondents 8. By way of reference, even 100
ppm is sometimes considered too toxic for local landflls, and
the federal government itself has elsewhere set a threshold
of 25 ppm. Ibid. Some States set residential cleanup levels
as low as 0.04 ppm. Ibid.
The cleanup work that followed left much to be desired.
By 2016, Atlantic Richfeld claimed that it had virtually fn-
ished work on the landowners' properties. Yet, only 24 of
their 77 properties had been remediated, and only about 5
percent of the total acreage had been touched. Id., at 9.
Soil near Tammy Peters's daycare playground, for example,
still shows an arsenic level of 292 ppm. But because the
“weighted average” for her yard is below 250 ppm, Atlantic
Richfeld performed no cleanup of the playground at all. Id.,
at 10.
So the landowners here proceeded as landowners histori-
cally have: They sought remedies for the pollution on their
lands in state court under state law. Their choice can come
as no surprise. The federal government enjoys no general
power to regulate private lands; it may intervene only con-
sistent with the Commerce Clause or some other constitu-

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tionally enumerated power. Nor does the federal govern-
ment
always intervene as fully as it might even when it can.
Meanwhile, the regulation of real property and the protec-
tion of natural resources is a traditional and central responsi-
bility of state governments. And States have long allowed
landowners to seek redress for the pollution of their lands
through ancient common law causes of action like nuisance
and trespass. The landowners employed exactly these theo-
ries when they brought suit in state court seeking restora-
tion damages from Atlantic Richfeld—money that could be
used only to remove arsenic, lead, and other toxins from their
properties. The Montana Supreme Court has held that the
landowners' case states a viable claim for relief and war-
rants trial.
Now, however, Atlantic Richfeld wants us to call a halt to
the proceedings. The company insists that CERCLA pre-
empts and prohibits common law tort suits like this one. On
Atlantic Richfeld's telling, CERCLA even prevents private
landowners from voluntarily remediating their own proper-
ties at their own expense. No one may do anything in 300
square miles of Montana, the company insists, without frst
securing the federal government's permission.
But what in the law commands that result? Everything
in CERCLA suggests that it seeks to supplement, not sup-
plant, traditional state law remedies and promote, not pro-
hibit, efforts to restore contaminated land. Congress hardly
could have been clearer. It stated that, “[n]othing in this
[Act] shall be construed or interpreted as preempting any
State from imposing any additional liability or requirements
with respect to the release of hazardous substances within
such State.” 42 U. S. C. § 9614(a). It added that “[n]othing
in this [Act] shall affect or modify in any way the obligations
or liabilities of any person under other Federal or State law,
including common law, with respect to releases of hazardous
substances or other pollutants or contaminants.” § 9652(d).
And it said again that “[t]his [Act] does not affect or other-

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Opinion of Gorsuch, J.
wise impair the rights of any person under Federal, State,
or
common law, except with respect to the timing of review
as provided” elsewhere in provisions that even the Court
today does not invoke as limits on recovery here. § 9659(h).
Three times Congress made its point as plainly as anyone
might.
So how does Atlantic Rich field seek to transfor m
CERCLA from a tool to aid cleanups into a ban on them?
The company has to point to something in the statutory text
that trumps these many provisions and preempts the land-
owners' right to use state law to restore their lands. After
all, merely “[i]nvoking some brooding federal interest or
appealing to a judicial policy preference should never be
enough to win preemption of a state law”; instead, a party
like Atlantic Richfeld seeking to displace state law must
identify “ `a constitutional text or a federal statute' that does
the displacing.” Virginia Uranium, Inc. v. Warren, 587
U. S. 761, 767 (2019) (opinion of Gorsuch, J.) (quoting Puerto
Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp.,
485 U. S. 495, 503 (1988)).
In answer, Atlantic Richfeld directs our attention to
§ 122(e)(6). It's a provision buried in a section captioned
“Settlements.” The section outlines the process private
parties must follow to negotiate a settlement and release of
CERCLA liability with the federal government. Subsec-
tion (e)(6) bears the title “Inconsistent response action” and
states that, “[w]hen either the President, or a potentially
responsible party pursuant to an administrative order or
consent decree under this chapter, has initiated a remedial
investigation and feasibility study for a particular facility
under this chapter, no potentially responsible party may un-
dertake any remedial action at the facility unless such reme-
dial action has been authorized by the President.” 42
U. S. C. § 9622(e)(6). So even read for all its worth, this pro-
vision only bars those “potentially responsible” to the federal
government from initiating cleanup efforts without prior ap-

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proval. To get where it needs to go, Atlantic Richfeld must
f
nd some way to label the innocent landowners here “poten-
tially responsible part[ies]” on the hook for cleanup duties
with the federal government.
They are hardly that. When interpreting a statute, this
Court applies the law's ordinary public meaning at the time
of the statute's adoption, here 1980. See Wisconsin Central
Ltd. v. United States, 585 U. S. 274, 284 (2018). To be “po-
tentially responsible” for something meant then, as it does
today, that a person could possibly be held accountable for
it; the outcome is capable of happening. American Heritage
Dictionary 1025 (1981); Webster's New Collegiate Dictionary
893 (1980). And there is simply no way the landowners here
are potentially, possibly, or capable of being held liable by
the federal government for anything. In the frst place, the
federal government never notifed the landowners that they
might be responsible parties, as it must under § 122(e)(1).
Additionally, everyone admits that the period allowed for
bringing a CERCLA claim against them has long since
passed under § 113(g)(2)(B). On any reasonable account, the
landowners are potentially responsible to the government for
exactly nothing.
Statutory context is of a piece with the narrow text.
Nothing in § 122 affects the rights of strangers to the federal
government's settlement process. Everything in the section
speaks to the details of that process. The section requires
the government to provide all potentially responsible parties
with notice that they might be held responsible for reme-
dial measures. § 9622(e)(1). It instructs the government
to give a potentially responsible party a list of everyone
else so desig nated. Ib i d. It speci fies procedures for
sharing proposals and counterproposals among this group.
§§ 9622(e)(2)–(3). It allows the government to release from
federal liability those who agree to settle and clean up haz-
ardous sites. See §§ 9622(a)–(c). And because parties who
settle with the federal government may seek cleanup costs

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Opinion of Gorsuch, J.
they incurred prior to settlement from other potentially re-
sponsible
parties, subsection (e)(6) bars a potentially respon-
sible party from taking unauthorized remedial measures.
See §§ 9622(e)(1)–(3), (h). This ensures the government can
control the shape of any fnal settlement and no private party
can unilaterally incur costs that it might then foist on others.
At the end of it all, the section does just what its title sug-
gests. It governs the settlement process among those who
have something to settle. It says nothing about the rights
and duties of individuals who, like the landowners here, have
nothing to settle because they face no potential liability.
Then there's what the rest of the statute tells us. As
we've seen, CERCLA says again and again that it does not
impair the rights of individuals under state law. That in-
struction makes perfect sense and does plenty of work if
§ 122 only requires those potentially liable to the federal gov-
ernment to secure permission before engaging in cleanup ef-
forts. By contrast, reading § 122 to bar nearly everyone
from undertaking remedial efforts without federal permis-
sion renders CERCLA's many and emphatic promises about
protecting existing state law rights practically dead letters.
Sure, the federal government would still have to “involv[e]”
state offcials and comply with state laws—or at least those
laws federal agency employees deem “relevant and appro-
pr iate. ” §§ 9621(f )(1), (d)(2)(A). But CERCLA wou ld
promise nothing more than observer status for state law and
those who wish to rely on it. States and private landowners
alike who lack any potential federal liability could be barred
even from undertaking remedial efforts on their own lands
at their own expense, required instead to host toxic wastes
involuntarily and indefnitely. Rather than supplementing
state remedial efforts, CERCLA would rule them all.
Reading CERCLA this way would raise uneasy constitu-
tional questions too. If CERCLA really did allow the fed-
eral government to order innocent landowners to house an-
other party's pollutants involuntarily, it would invite weighty

40 A
TLANTIC RICHFIELD CO. v. CHRISTIAN
Opinion of Gorsuch, J.
takings arguments under the Fifth Amendment. See Lo-
re
tto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419,
421 (1982). And if the statute really did grant the federal
government the power to regulate virtually each shovelful
of dirt homeowners may dig on their own properties, it would
sorely test the reaches of Congress's power under the Com-
merce Clause. See National Federation of Independent
Business v. Sebelius, 567 U. S. 519, 551–553 (2012).
Atlantic Richfeld's replies do nothing to address these
problems. Instead of making some helpful textual or con-
textual rejoinder about § 122, the company asks us look
somewhere else entirely. Now, Atlantic Richfeld says, we
should direct our attention to § 107, a provision that lists four
classes of “[c]overed persons” the federal government is au-
thorized to sue under CERCLA. One of these classes en-
compasses any person who owns a “facility” where hazardous
waste has “come to be located.” §§ 9607, 9601(9). Because
the landowners' properties qualify as “facilit[ies]” where At-
lantic Richfeld's waste has come to be located, everyone ad-
mits the landowners themselves are “[c]overed persons.”
And, according to Atlantic Richfeld, this necessarily means
they are also “potentially responsible part[ies]” subject to
§ 122(e)(6)'s requirement that they seek federal permission
before proceeding with any cleanup.
But notice the linguistic contortion and logical leap. Lin-
guistically, § 107 identifes the “[c]overed persons” the gov-
ernment is authorized to sue. Section 122 requires a “poten-
tia l ly responsible par ty” seek i ng settlement w ith and
discharge of liability from the federal government to obtain
its permission before engaging in a cleanup. The terms use
different language, appear in different statutory sections,
and address different matters. Nor are these two sections
the only ones like them. CERCLA differentiates between
covered persons and potentially responsible parties in many
places: Some sections apply to all persons covered by § 107
(see, e. g., 42 U. S. C. §§ 9619(d), 9624(b)), while others extend

Cite
as: 590 U. S. 1 (2020)
41
Opinion of Gorsuch, J.
their mandates only to potentially responsible parties (see,
e.
g., §§ 9604, 9605, 9611). Logically, too, the concepts are
distinct. Yes, a potentially responsible party must be a cov-
ered person the government is authorized to sue. But the
inverse does not follow. It is possible to be a person the
government is authorized to sue without also being a person
the government has chosen to single out for potential respon-
sibility. Atlantic Richfeld's argument, thus, essentially pro-
ceeds like this: Disregard the differences in language; then
assume Congress chose its terms randomly throughout the
law; and, fnally, confate logically distinct concepts.
Our case illustrates the signifcance of the distinction Con-
gress drew and Atlantic Richfeld would have us ignore.
Maybe the federal government was once authorized by § 107
to include the innocent landowners here in a CERCLA suit.
But few statutes pursue their purpose single-mindedly or
require their full enforcement. And as we've seen, at least
two things happened that preclude these landowners from
being held responsible for anything: The government chose
not to notify them of potential liability under § 122(e)(3), and
it declined to bring suit within the period prescribed by
§ 113(g)(2)(B). Under the plain and ordinary meaning of the
statutory terms before us, these landowners are not poten-
tially responsible parties and CERCLA doesn't require them
to seek permission from federal offcials before cleaning their
own lands. If Congress had wished to extend its ask-before-
cleaning rule to every covered person—including those the
government chooses not to pursue for potential liability—all
it had to do was say so. Congress displayed no trouble using
the term “[c]overed persons” elsewhere in the statute. See,
e. g., §§ 9619(d), 9624(b)(2). Conspicuously, it made a differ-
ent choice here.
Without any plausible foundation in the statute to support
its position, Atlantic Richfeld resorts to this odd argument.
Maybe the terms “[c]overed persons” and “potentially re-
sponsible party” are different and the statute uses them in

42 A
TLANTIC RICHFIELD CO. v. CHRISTIAN
Opinion of Gorsuch, J.
different places to do different things. But, the company
i
nsists, we must confate them now because this Court has
confated them before. In particular, Atlantic Richfeld
points to language in United States v. Atlantic Research
Corp., 551 U. S. 128 (2007), where the Court spoke of “Section
107(a) [as] defn[ing] four categories of PRPs [potentially re-
sponsible parties].” Id., at 131–132.
That may be so but it does not make it so. The relation-
ship between the terms “[c]overed persons” under § 107 and
“potentially responsible part[ies]” under § 122 is of critical
importance in this case, but it was not briefed, argued, or
decided in Atlantic Research. Instead, the only question
there concerned the meaning of the term “[c]overed persons”
under § 107. Though the Court employed the term “PRP”
to describe “[c]overed persons,” nothing turned on the use
or meaning of the acronym: Replace every reference to
“PRP” with “[c]overed person” and the Court's holding and
reasoning remains the same. This Court has long warned
that matters “ `lurk[ing] in the record, neither brought to the
attention of the court nor ruled upon,' ” should not be read as
having decided anything. Cooper Industries, Inc. v. Aviall
Services, Inc., 543 U. S. 157, 170 (2004) (quoting Webster v.
Fall, 266 U. S. 507, 511 (1925)). We have warned, too,
against reading our judicial opinions as if they were some
sort of legislative code because, otherwise, innocent and in-
consequential judicial remarks might mistakenly come to
trump democratically adopted laws. See Reiter v. Sonotone
Corp., 442 U. S. 330, 341 (1979). Atlantic Richfeld would
have us ignore these teachings and confuse a stray remark
with a rule of law.
In the end, the company's case cannot help but be seen for
what it really is: an appeal to policy. On its view, things
would be so much more orderly if the federal government
ran everything. And, let's be honest, the implication here is
that property owners cannot be trusted to clean up their
lands without causing trouble (especially for Atlantic Rich-

Cite
as: 590 U. S. 1 (2020)
43
Opinion of Gorsuch, J.
feld). Nor, we are told, should Montanans worry so much:
The
restrictions Atlantic Richfeld proposes aren't really that
draconian because homeowners would still be free to do
things like build sandboxes for their grandchildren (pro-
vided, of course, they don't scoop out too much arsenic in
the process).
But, as in so many cases that come before this Court, the
policy arguments here cut both ways. Maybe paternalistic
central planning cannot tolerate parallel state law efforts to
restore state lands. But maybe, too, good government and
environmental protection would be better served if state law
remedies proceeded alongside federal efforts. State and
federal law enforcement usually work in just this way, com-
plementing rather than displacing one another. And, any-
way, how long would Atlantic Richfeld have us enforce what
amounts to a federal easement requiring landowners to
house toxic waste on their lands? The government has been
on site since 1983; work supposedly fnished around the land-
owners' homes in 2016; the completion of “primary” cleanup
efforts is “estimated” to happen by 2025. So, yes, once a
Superfund site is “delisted,” the restrictions on potentially
responsible parties fade away. But this project is well on its
way to the half-century mark and still only a “preliminary”
deadline lies on the horizon. No one before us will even
hazard a guess when the work will fnish and a “delisting ”
might come. On Atlantic Richfeld's view, generations have
come and gone and more may follow before the plaintiffs can
clean their land.
The real problem, of course, is that Congress, not this
Court, is supposed to make judgments between competing
policy arguments like these. And, as we've seen, Congress
has offered its judgment repeatedly and clearly. CERCLA
sought to add to, not detract from, state law remedial efforts.
It endorsed a federalized, not a centralized, approach to envi-
ronmental protection. What if private or state cleanup ef-
forts really do somehow interfere with federal interests?

44 A
TLANTIC RICHFIELD CO. v. CHRISTIAN
Opinion of Gorsuch, J.
Congress didn't neglect the possibility. But instead of re-
quir
ing state offcials and local landowners to beg Washing-
ton for permission, Congress authorized the federal govern-
ment to seek injunctive relief in court. See § 9606(a).
Atlantic Richfeld would have us turn this system upside
down, recasting the statute's presumption in favor of cooper-
ative federalism into a presumption of federal absolutism.
While I agree with the Court's assessment in Parts I and
II of its opinion that we have jurisdiction to hear this case,
I cannot agree with its ruling on the merits in Part III. De-
parting from CERCLA's terms in this way transforms it
from a law that supplements state environmental restoration
efforts into one that prohibits them. Along the way, it
strips away ancient common law rights from innocent land-
owners and forces them to suffer toxic waste in their back-
yards, playgrounds, and farms. Respectfully, that is not
what the law was written to do; that is what it was written
to prevent.

OCTOBER
TERM, 2019
45
Syllabus
THRYV, INC., fka DEX MEDIA, INC. v. CLICK-TO-
CAL
L TECHNOLOGIES, LP, et al.
certiorari to the united states court of appeals for
the federal circuit
No. 18–916. Argued December 9, 2019—Decided April 20, 2020
Inter partes review is an administrative process that permits a patent
challenger to ask the U. S. Patent and Trademark Offce to reconsider
the validity of earlier granted patent claims. For inter partes review
to proceed, the agency must agree to institute review. See 35 U. S. C.
§ 314. Among other conditions set by statute, if a request comes more
than a year after suit against the requesting party for patent infringe-
ment, “[a]n inter partes review may not be instituted.” § 315(b). The
agency's “determination . . . whether to institute an inter partes review
under this section shall be fnal and nonappealable.” § 314(d).
Entities associated with petitioner Thryv, Inc., sought inter partes
review of a patent owned by respondent Click-to-Call Technologies, LP.
Click-to-Call countered that the petition was untimely under § 315(b).
The Patent Trial and Appeal Board (Board) disagreed and instituted
review. After proceedings on the merits, the Board issued a fnal writ-
ten decision reiterating its § 315(b) decision and canceling 13 of the pat-
ent's claims as obvious or lacking novelty. Click-to-Call appealed the
Board's § 315(b) determination. Treating the Board's application of
§ 315(b) as judicially reviewable, the Court of Appeals concluded that
the petition was untimely, vacated the Board's decision, and remanded
with instructions to dismiss.
Held: Section 314(d) precludes judicial review of the agency's application
of § 315(b)'s time prescription. Pp. 52–60.
(a) A party generally cannot contend on appea l that the agency
should have refused “to institute an inter partes review.” § 314(d).
That follows from § 314(d)'s text and Cuozzo Speed Technologies, LLC
v. Lee, 579 U. S. 261. In Cuozzo, this Court explained that § 314(d) “pre-
clud[es] review of the Patent Offce's institution decisions”—at least
“where the grounds for attacking the decision to institute inter partes
review consist of questions that are closely tied to the application and
interpretation of statutes related to the Patent Offce's decision to initi-
ate inter partes review.” Id., at 274–275. Pp. 52–53.
(b) The question here is whether a challenge based on § 315(b) ranks
as an appeal of the agency's decision “to institute an inter partes re-
view.” § 314(d). There is no need to venture beyond Cuozzo's holding

46 THR
YV, INC. v. CLICK-TO-CALL TECHNOLOGIES, LP
Syllabus
that § 314(d) bars review at least of matters “closely tied to the applica-
ti
on and interpretation of statutes related to” the institution decision,
579 U. S., at 275. A § 315(b) challenge easily meets that measurement.
Section 315(b), setting forth a circumstance in which “[a]n inter partes
review may not be instituted,” expressly governs institution and noth-
ing more. Pp. 53–54.
(c) This conclusion is strongly reinforced by the statute's purpose and
design. Congress designed inter partes review to weed out bad patent
claims effciently. Allowing § 315(b) appeals, however, would unwind
agency proceedings determining patentability and leave bad patents en-
forceable. Pp. 54–56.
(d) In Click-to-Call's view, § 314(d)'s bar on judicial review is limited
to the agency's threshold determination under § 314(a) of the question
whether the petitioner has a reasonable likelihood of prevailing. Cu-
ozzo is fatal to that interpretation, for the Court in that case held unre-
viewable the agency's application of a provision other than § 314(a).
Contrary to Click-to-Call's contention, § 314(d)'s text does not limit the
review bar to § 314(a). Rather than borrowing language from related
provisions that would have achieved Click-to-Call's preferred meaning,
Congress used broader language in § 314(d). Click-to-Call also insists
that Congress intended judicial supervision of the agency's application
of § 315(b), but the statute instead refects a choice to entrust that issue
to the agency. Finally, SAS Institute Inc. v. Iancu, 584 U. S. 357, offers
Click-to-Call no assistance. Unlike the appeal held reviewable in SAS
Institute, Click-to-Call's appeal challenges not the manner in which the
agency's review proceeds once instituted, but whether the agency should
have instituted review at all. Pp. 56–59.
(e) Click-to-Call argues in the alternative that its § 315(b) objection is
authorized as an appeal from the Board's fnal written decision, which
addressed the § 315(b) issue. Even labeled that way, Click-to-Call's ap-
peal is still barred by § 314(d) because Click-to-Call's contention remains,
essentially, that the agency should have refused to institute inter partes
review. P. 60.
899 F. 3d 1321, vacated and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Roberts,
C. J., and Breyer, Kagan, and Kavanaugh, JJ., joined, and in which
Thomas and Alito, JJ., joined except as to Part III–C. Gorsuch, J.,
fled a dissenting opinion, in which Sotomayor, J., joined as to Parts I, II,
III, and IV, post, p. 61.
Adam H. Charnes argued the cause for petitioner. With
him on the briefs were Jason P. Sneed, Mitchell G. Stock-
well, and Thurston Webb.

Cite
as: 590 U. S. 45 (2020)
47
Opinion of the Court
Jonathan Y. Ellis argued the cause for the federal re-
spondent
urging reversal under this Court's Rule 12.6.
With him on the brief were Solicitor General Francisco, As-
sistant Attorney General Hunt, Deputy Solicitor General
Stewart, Mark F. Freeman, Edward Himmelfarb, Melissa
N. Patterson, Sarah T. Harris, Thomas W. Krause, Farheena
Y. Rasheed, and Molly R. Silfen.
Daniel L. Geyser argued the cause for respondent Click-
to-Call Technologies, LP. With him on the brief were Peter
J. Ayers and Craig J. Yudell.*
Justice Ginsburg delivered the opinion of the Court.†
Inter partes review is an administrative process in which
a patent challenger may ask the U. S. Patent and Trademark
Offce (PTO) to reconsider the validity of earlier granted pat-
ent claims. This case concerns a statutorily prescribed limi-
*Briefs of amici curiae urging reversal were fled for AARP et al. by
Barbara A. Jones and William Alvarado Rivera; for the Atlanta Gas
Light Co. by Jeffrey S. Bucholtz and Russell E. Blythe; for Intel Corp. by
Donald B. Verrilli, Jr., and Ginger D. Anders; for ON Semiconductor
Corp. et al. by Kathleen M. Sullivan and Michael Hawes; and for Superior
Communications, Inc., by Sydney Leach and Andrew M. Jacobs.
Briefs of amici curiae urging affrmance were fled for the Biotechnol-
ogy Innovation Organization by Amy Mason Saharia, Hans Sauer, and
Melissa Brand; for the New York Intellectual Property Law Association
by Irena Royzman, Colman B. Ragan, Robert J. Rando, and Matthew
Kaufman; for Pharmaceutical Research and Manufacturers of America by
Scott E. Kamholz, James C. Stansel, and David E. Korn; for Power Inte-
grations, Inc., by Alexandra A. E. Shapiro, John W. Thornburgh, and
Frank E. Scherkenbach; for Professors of Patent Law et al. by Jonathan
A. Herstoff and Saurabh Vishnubhakat, pro se; and for Stephen I. Vladeck
by J. Carl Cecere.
Briefs of amici curiae were fled for the American Intellectual Property
Law Association by Erick J. Palmer and Sheldon H. Klein; for the Fed-
eral Circuit Bar Association by Naresh Kilaru; and for the PTAB Bar
Association by Adam G. Unikowski, Aaron A. Barlow, Michael G. Bab-
bitt, Gabriel K. Gillett, and Naveen Modi.
†Justice Thomas and Justice Alito join all but Part III–C of this
opinion.

48 THR
YV, INC. v. CLICK-TO-CALL TECHNOLOGIES, LP
Opinion of the Court
tation of the issues a party may raise on appeal from an inter
par
tes review proceeding.
When presented with a request for inter partes review, the
agency must decide whether to institute review. 35 U. S. C.
§ 314. Among other conditions set by statute, if the request
comes more than a year after suit against the requesting party
for patent infringement, “[a]n inter partes review may not
be instituted.” § 315(b). “The determination by the [PTO]
Director whether to institute an inter partes review under
this section shall be fnal and nonappealable.” § 314(d).‡
In this case, the agency instituted inter partes review in
response to a petition from Thryv, Inc., resulting in the can-
cellation of several patent claims. Patent owner Click-to-
Call Technologies, LP, appealed, contending that Thryv's
petition was untimely under § 315(b).
The question before us: Does § 314(d)'s bar on judicial re-
view of the agency's decision to institute inter partes review
preclude Click-to-Call's appeal? Our answer is yes. The
agency's application of § 315(b)'s time limit, we hold, is closely
related to its decision whether to institute inter partes re-
view and is therefore rendered nonappealable by § 314(d).
I
The Patent and Trademark Offce has several ways “to
reexamine—and perhaps cancel—a patent claim that it had
previously allowed.” Cuozzo Speed Technologies, LLC v.
Lee, 579 U. S. 261, 267 (2016). Congress established the pro-
cedure at issue here, inter partes review, in the Leahy-Smith
America Invents Act (AIA), 125 Stat. 284, enacted in 2011.
See 35 U. S. C. § 311 et seq. Inter partes review allows third
parties to challenge patent claims on grounds of invalidity
specifed by statute. § 311(b).
For inter partes review to proceed, the agency must agree
to institute review. § 314. Any person who is not the pat-
‡Key statutory provisions are reproduced in an appendix to this opinion.

Cite
as: 590 U. S. 45 (2020)
49
Opinion of the Court
ent's owner may fle a petition requesting inter partes re-
v
iew. § 311(a). The patent owner may oppose institution of
inter partes review, asserting the petition's “failure . . . to
meet any requirement of this chapter.” § 313.
The AIA sets out prerequisites for institution. Among
them, “[t]he Director may not authorize an inter partes re-
view to be instituted unless the Director determines . . . that
there is a reasonable likelihood that the petitioner would pre-
vail with respect to at least 1 of the claims challenged in the
petition.” § 314(a). Most pertinent to this case, “[a]n inter
partes review may not be instituted if the petition request-
ing the proceeding is fled more than 1 year after the date
on which the petitioner, real party in interest, or privy of
the petitioner is served with a complaint alleging infringe-
ment of the patent.” § 315(b).
After receiving the petition and any response, the PTO
“Director shall determine whether to institute an inter par-
tes review under this chapter.” § 314(b). The Director has
delegated institution authority to the Patent Trial and Ap-
peal Board (Board). 37 CFR § 42.4(a) (2019). As just
noted, the federal agency's “determination . . . whether to
institute an inter partes review under this section” is “fnal
and nonappealable.” 35 U. S. C. § 314(d).
Upon electing to institute inter partes review, the Board
conducts a proceeding to evaluate the challenged claims' va-
lidity. See § 316. At the conclusion of the proceeding—if
review “is instituted and not dismissed”—the Board “issue[s]
a fnal written decision with respect to the patentability of ”
the challenged claims. § 318(a). “A party dissatisfed with
the fnal written decision . . . may appeal the decision” to the
Court of Appeals for the Federal Circuit. § 319.
II
Respondent Click-to-Call owns a patent relating to a
technology for anonymous telephone calls, U. S. Patent
No. 5,818,836 ('836 patent). In 2013, petitioner Thryv sought

50 THR
YV, INC. v. CLICK-TO-CALL TECHNOLOGIES, LP
Opinion of the Court
inter partes review, challenging several of the patent's
clai
ms.
1
In opposition, Click-to-Call urged that § 315(b) barred in-
stitution of inter partes review because Thryv fled its peti-
tion too late. Click-to-Call pointed to an infringement suit
fled in 2001, which ended in a voluntary dismissal without
prejudice.
2
In Click-to-Call's view, that 2001 suit started
§ 315(b)'s one-year clock, making the 2013 petition untimely.
The Board disagreed. Section 315(b) did not bar the insti-
tution of inter partes review, the Board concluded, because
a complaint dismissed without prejudice does not trigger
§ 315(b)'s one-year limit. Finding no other barrier to in-
stitution, the Board decided to institute review. After
proceedings on the merits, the Board issued a fnal written
decision reiterating its rejection of Click-to-Call's § 315(b) ar-
gument and canceling 13 of the patent's claims as obvious or
lacking novelty.
Click-to-Call appealed, challenging only the Board's deter-
mination that § 315(b) did not preclude inter partes review.
The Court of Appeals dismissed the appeal for lack of juris-
diction, agreeing with Thryv and the Director (who inter-
vened on appeal) that § 314(d)'s bar on appeal of the institu-
tion decision precludes judicial review of the agency's
application of § 315(b). Citing our intervening decision in Cu-
ozzo, 579 U. S., at 274–275, we granted certiorari, vacated the
judgment, and remanded. Click-to-Call Technologies, LP v.
1
More precisely, the petition was fled by four companies, including
YellowPages.com, LLC, and Ingenio, LLC. Through “a series of mergers,
sales, and name changes,” both became Thryv. Brief for Petitioner 8.
For simplicity, we refer to Thryv and its predecessor entities as “Thryv.”
2
The 2001 suit was brought by Inforocket.Com, Inc.—then the exclusive
licensee of the '836 patent—against Keen, Inc. See In forocket.Com, Inc.
v. Keen, Inc., No. 1:01–cv–05130 (SDNY). While the suit was pending,
Keen acquired Inforocket and the District Court dismissed the suit with-
out prejudice. By the time of the inter partes review petition, Keen had
become Ingenio (now Thryv).

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as: 590 U. S. 45 (2020)
51
Opinion of the Court
Oracle Corp., 579 U. S. 925 (2016). On remand, the Court of
Appea
ls again dismissed the appeal on the same ground.
Thereafter, in another case, the en banc Federal Circuit
held that “time-bar determinations under § 315(b) are ap-
pealable” notwithstanding § 314(d). Wi-Fi One, LLC v.
Broadcom Corp., 878 F. 3d 1364, 1367 (2018). The majority
opinion construed § 314(d)'s reference to the determination
whether to institute inter partes review “under this section”
as trained on the likelihood-of-success requirement stated in
§ 314(a). Id., at 1372. The § 315(b) timeliness determina-
tion, the majority concluded, “is not `closely related' to the
institution decision addressed in § 314(a).” Id., at 1374
(quoting Cuozzo, 579 U. S., at 276). The majority therefore
held that for § 315(b) appeals, § 314(d) does not displace the
usual presumption favoring judicial review of agency action.
Wi-Fi One, 878 F. 3d, at 1374–1375. In a concurring opinion,
Judge O'Malley emphasized a “simpler” basis for the same
conclusion. Id., at 1375. In her view, § 314(d) shields from
review only the agency's assessment of a petition's “substan-
tive adequacy,” not questions about the agency's “authority
to act.” Id., at 1376.
Judge Hughes, joined by Judges Lourie, Bryson, and Dyk,
dissented, expressing a position that today's dissent charac-
terizes as “extraordinary.” Post, at 66. Those judges con-
cluded that § 314(d) conveys Congress' “clear and unmistak-
able” “intent to prohibit judicial review of the Board's [inter
partes review] institution decision.” Wi-Fi One, 878 F. 3d,
at 1378. That prohibition applies to § 315(b) issues, the Fed-
eral Circuit dissenters maintained, because § 315(b) “de-
scribes when an [inter partes review] may be `instituted.' ”
Id., at 1377, 1378–1379 (quoting § 315(b)).
In light of its en banc decision in Wi-Fi One, the Court of
Appeals granted panel rehearing in this case. Treating the
Board's application of § 315(b) as judicially reviewable, the
panel's revised opinion held that the Board erred by institut-
ing review. The petition for inter partes review here was

52 THR
YV, INC. v. CLICK-TO-CALL TECHNOLOGIES, LP
Opinion of the Court
untimely, the Court of Appeals held, because the 2001 in-
fr
ingement complaint, though dismissed without prejudice,
started the one-year clock under § 315(b).
3
The court there-
fore vacated the Board's fnal written decision, which had
invalidated 13 of Click-to-Call's claims for want of the requi-
site novelty and nonobviousness, and remanded with instruc-
tions to dismiss.
We granted certiorari to resolve the reviewability issue,
588 U. S. 905 (2019), and now vacate the Federal Circuit's
judgment and remand with instructions to dismiss the ap-
peal for lack of appellate jurisdiction.
III
A
To determine whether § 314(d) precludes judicial review of
the agency's application of § 315(b)'s time prescription, we
begin by defning § 314(d)'s scope. Section 314(d)'s text ren-
ders “fnal and nonappealable” the “determination by the Di-
rector whether to institute an inter partes review under this
section.” § 314(d) (emphasis added). That language indi-
cates that a party generally cannot contend on appeal that
the agency should have refused “to institute an inter partes
review.”
We held as much in Cuozzo. There, a party contended on
appeal that the agency should have refused to institute inter
partes review because the petition failed § 312(a)(3)'s require-
ment that the grounds for challenging patent claims must
be identifed “with particularity.” 579 U. S., at 270 (internal
3
A footnote in the panel's opinion noted that the Court of Appeals sit-
ting en banc had considered and agreed with the panel majority's conclu-
sion that a complaint voluntarily dismissed without prejudice can trigger
§ 315(b)'s time bar. Click-to-Call Technologies, LP v. Ingenio, Inc., 899
F. 3d 1321, 1328, n. 3 (CA Fed. 2018). On that issue, Judge Taranto issued
a concurring opinion, id., at 1343–1347, and Judge Dyk, joined by Judge
Lourie, issued a dissenting opinion, id., at 1350–1355. That question is
outside the scope of our review.

Cite
as: 590 U. S. 45 (2020)
53
Opinion of the Court
quotation marks omitted). This “contention that the Patent
Offce
unlawfully initiated its agency review is not appeal-
able,” we held, for “that is what § 314(d) says.” Id., at
271. Section 314(d), we explained, “preclud[es] review of
the Patent Offce's institution decisions” with suffcient
clarity to overcome the “ `strong presumption' in favor of
judicial review.” Id., at 273–274 (quoting Mach Mining,
LLC v. EEOC, 575 U. S. 480, 486 (2015)). See Cuozzo, 579
U. S., at 273 (fnding “ `clear and convincing ' indications . . .
that Congress intended to bar review” (quoting Block v.
Community Nutrition Institute, 467 U. S. 340, 349–350
(1984))).
We reserved judgment in Cuozzo, however, on whether
§ 314(d) would bar appeals reaching well beyond the decision
to institute inter partes review. 579 U. S., at 275. We de-
clined to “decide the precise effect of § 314(d) on,” for exam-
ple, “appeals that implicate constitutional questions.” Ibid.
Instead, we defned the bounds of our holding this way:
“[O]ur interpretation applies where the grounds for attack-
ing the decision to institute inter partes review consist of
questions that are closely tied to the application and inter-
pretation of statutes related to the Patent Offce's decision
to initiate inter partes review.” Id., at 274–275.
B
We therefore ask whether a challenge based on § 315(b)
ranks as an appeal of the agency's decision “to institute an
inter partes review.” § 314(d). We need not venture be-
yond Cuozzo's holding that § 314(d) bars review at least of
matters “closely tied to the application and interpretation of
statutes related to” the institution decision, id., at 275, for a
§ 315(b) challenge easily meets that measurement.
Section 315(b)'s time limitation is integral to, indeed a con-
dition on, institution. After all, § 315(b) sets forth a cir-
cumstance in which “[a]n inter partes review may not be
instituted.” Even Click-to-Call and the Court of Appeals

54 THR
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Opinion of the Court
recognize that § 315(b) governs institution. See Brief for
Respondent
Click-to-Call 1 (§ 315(b) is “a clear limit on the
Board's institution authority”); Wi-Fi One, 878 F. 3d, at 1373
(Ҥ 315(b) controls the Director's authority to institute [inter
partes review]”).
Because § 315(b) expressly governs institution and nothing
more, a contention that a petition fails under § 315(b) is a
contention that the agency should have refused “to institute
an inter partes review.” § 314(d). A challenge to a peti-
tion's timeliness under § 315(b) thus raises “an ordinary dis-
pute about the application of ” an institution-related statute.
Cuozzo, 579 U. S., at 271. In this case as in Cuozzo, there-
fore, § 314(d) overcomes the presumption favoring judicial
review.
4
C
The AIA's purpose and design strongly reinforce our con-
clusion. By providing for inter partes review, Congress,
concerned about overpatenting and its diminishment of com-
petition, sought to weed out bad patent claims effciently.
See id., at 272; H. R. Rep. No. 112–98, pt. 1, p. 40 (2011)
(“The legislation is designed to establish a more effcient
and streamlined patent system that will improve patent qual-
ity and limit unnecessary and counterproductive litigation
costs.”).
5
4
We do not decide whether mandamus would be available in an ex-
traordi nary case. Cf. Cuozzo Speed Techno l og i es, LLC v. Lee, 579
U. S. 261, 291, n. 5 (2016) (Alito, J., concurring in part and dissenting
in part).
5
The dissent acknowledges that “Congress authorized inter partes re-
view to encourage further scrutiny of already issued patents.” Post, at
74. Yet the dissent, despite the Court's decision upholding the constitu-
tionality of such review in Oil States Energy Services, LLC v. Greene's
Energy Group, LLC, 584 U. S. 325 (2018), appears ultimately to urge that
Congress lacks authority to permit second looks. Patents are property,
the dissent several times repeats, and Congress has no prerogative to
allow “property-taking-by-bureaucracy.” Post, at 62, 78–81. But see Oil
States, 584 U. S., at 335 (“patents are public franchises” (internal quotation

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55
Opinion of the Court
Allowing § 315(b) appeals would tug against that objective,
wasti
ng the resources spent resolving patentability and leav-
ing bad patents enforceable. A successful § 315(b) appeal
would terminate in vacatur of the agency's decision; in lieu
of enabling judicial review of patentability, vacatur would
unwind the agency's merits decision. See Cuozzo, 579 U. S.,
at 272. And because a patent owner would need to appeal
on § 315(b) untimeliness grounds only if she could not prevail
on patentability, § 315(b) appeals would operate to save bad
patent claims. This case illustrates the dynamic. The
agency held Click-to-Call's patent claims invalid, and Click-
to-Call does not contest that holding. It resists only the
agency's institution decision, mindful that if the institution
decision is reversed, then the agency's work will be undone
and the canceled patent claims resurrected.
Other features of the statutory design confrm that Con-
gress prioritized patentability over § 315(b)'s timeliness re-
quirement. A petitioner's failure to satisfy § 315(b) does not
prevent the agency from conducting inter partes review of
the challenged patent claims; the agency can do so at another
petitioner's request. § 311(a). Nor does failure to satisfy
§ 315(b) prevent the original initiator from participating on
the merits; the § 315(b)-barred party can join a proceeding
initiated by another petitioner. § 315(b), (c). And once
inter partes review is instituted, the agency may issue a fnal
written decision even “[i]f no petitioner remains in the inter
partes review.” § 317(a). It is unsurprising that a statu-
tory scheme so consistently elevating resolution of patent-
ability above a petitioner's compliance with § 315(b) would
exclude § 315(b) appeals, thereby preserving the Board's ad-
judication of the merits.
marks omitted)). The second look Congress put in place is assigned to
the very same bureaucracy that granted the patent in the frst place.
Why should that bureaucracy be trusted to give an honest count on frst
view, but a jaundiced one on second look? See post, at 79–80.

56 THR
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Opinion of the Court
Judicial review of § 315(b) rulings, moreover, would do lit-
tle
to serve other statutory goals. The purpose of § 315(b),
all agree, is to minimize burdensome overlap between inter
partes review and patent-infringement litigation. Brief for
Petitioner 24; Brief for Federal Respondent 36; Brief for Re-
spondent Click-to-Call 37. Judicial review after the agency
proceedings cannot undo the burdens already occasioned.
Nor are § 315(b) appeals necessary to protect patent claims
from wrongful invalidation, for patent owners remain free to
appeal fnal decisions on the merits. § 319.
IV
Click-to-Call advances a narrower reading of § 314(d). In
Click-to-Call's view, which the dissent embraces, post, at 66–
78, the bar on judicial review applies only to the agency's
threshold deter minati on under § 314(a) of the questi on
whether the petitioner has a reasonable likelihood of prevail-
ing. Section 314(d) addresses the “determination by the Di-
rector whether to institute inter partes review under this
section” (emphasis added), and, Click-to-Call maintains,
§ 314(a) contains “the only substantive determination refer-
enced in” the same section as § 314(d). Brief for Respondent
Click-to-Call 16. This interpretation, Click-to-Call argues,
supplies a clear rule consonant with the presumption favor-
ing judicial review. Cf. supra, at 51 (Federal Circuit's en
banc Wi-Fi One decision).
Cuozzo is fatal to Click-to-Call's interpretation. Section
314(d)'s review bar is not confned to the agency's application
of § 314(a), for in Cuozzo we held unreviewable the agency's
application of § 312(a)(3). 579 U. S., at 275. Far from limit-
ing the appeal bar to § 314(a) and “nothing else” as Click-to-
Call urges, Brief for Respondent 29, the Court's opinion in
Cuozzo explai ned that the bar extends to cha l lenges
grounded in “statutes related to” the institution decision.
579 U. S., at 275.

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57
Opinion of the Court
The text of § 314(d) offers Click-to-Call no support. The
prov
ision sweeps more broadly than the determination about
whether “there is a reasonable likelihood that the petitioner
would prevail.” § 314(a). Rather, it encompasses the entire
determination “whether to institute an inter partes re-
view.” § 314(d).
And § 314(d) refers not to a determination under subsec-
tion (a), but to the determination “under this section.” That
phrase indicates that § 314 governs the Director's institution
of inter partes review. Titled “Institution of inter partes
review,” § 314 is the section housing the command to the Di-
rector to “determine whether to institute an inter partes re-
view,” § 314(b). Thus, every decision to institute is made
“under” § 314 but must take account of specifcations in other
provisions—such as the § 312(a)(3) particularity requirement
at issue in Cuozzo and the § 315(b) timeliness requirement at
issue here. Similar clarifying language recurs throughout
the AIA. See, e. g., § 315(c) (referring to the Director's de-
termination regarding “the institution of an inter partes
review under section 314” (emphasis added)); § 314(b) (re-
ferring to “a petition fled under section 311,” the sec-
tion authorizing the fling of petitions (emphasis added));
§ 314(b)(1) (referring to “a preliminary response to the peti-
tion under section 313,” the section authorizing the fling of
preliminary responses to petitions (emphasis added)).
If Congress had intended Click-to-Call's meaning, it had at
hand readymade language from a precursor to § 314(d): “A
determination by the Director under subsection (a) shall be
fnal and non-appealable.” 35 U. S. C. § 312(c) (2006 ed.) (em-
phasis added) (governing inter partes reexamination). Or
Congress might have borrowed from a related provision: “A
determination by the Director pursuant to subsection (a) of
this section that no substantial new question of patentabil-
ity has been raised will be fnal and nonappealable.” 35
U. S. C. § 303(c) (emphasis added) (governing ex parte reex-

58 THR
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Opinion of the Court
amination). Instead, Congress chose to shield from appel-
late
review the determination “whether to institute an inter
par tes rev i ew under th is sec t io n. ” § 314(d) (emphasis
added). That departure in language suggests a departure
in meaning. See Henson v. Santander Consumer USA Inc.,
582 U. S. 79, 86 (2017).
Click-to-Call doubts that Congress would have limited the
agency's institution authority in § 315(b) without ensuring ju-
dicial supervision. Congress entrusted the institution deci-
sion to the agency, however, to avoid the signifcant costs,
already recounted, of nullifying a thoroughgoing determina-
tion about a patent's validity. See supra, at 54–55. That
goal—preventing appeals that would frustrate effcient reso-
lution of patentability—extends beyond § 314(a) appeals.
Click-to-Call also contends that we adopted its inter-
pretation of § 314(d) in SAS Institute Inc. v. Iancu, 584 U. S.
357 (2018). Neither of our holdings in that case assists
Click-to-Call, and both holdings remain governing law. SAS
Institute frst held that once the agency institutes an inter
partes review, it must “resolve all of the claims in the case.”
Id., at 359. SAS Institute located that rule in § 318(a),
which requires the agency to decide “the patentability of any
patent claim challenged by the petitioner.” Ibid. (emphasis
in original; internal quotation marks omitted). SAS Insti-
tute next held that § 314(d) did not bar judicial review of
§ 318(a)'s application. Id., at 370–371. Our decision ex-
plained that “nothing in § 314(d) or Cuozzo withdraws our
power to ensure that an inter partes review proceeds in ac-
cordance with the law's demands.” Id., at 371. That re-
viewability holding is inapplicable here, for Click-to-Call's
appeal challenges not the manner in which the agency's re-
view “proceeds” once instituted, but whether the agency
should have instituted review at all.
Click-to-Call homes in on a single sentence from SAS In-
stitute's reviewability discussion: “Cuozzo concluded that
§ 314(d) precludes judicial review only of the Director's `ini-

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59
Opinion of the Court
tial determination' under § 314(a) that `there is a “reason-
able
likelihood” that the claims are unpatentable on the
grounds asserted' and review is therefore justifed.” Id., at
370–371 (quoting Cuozzo, 579 U. S., at 273). But that sen-
tence's account of Cuozzo is incomplete. Recall that Cuozzo
itself applied § 314(d)'s appeal bar to a challenge on grounds
other than § 314(a). See supra, at 56. To understand how
far beyond § 314(a) the bar on judicial review extends, we
look to the statute and Cuozzo; for the reasons stated above,
they est abl ish that § 314(d) bars cha l lenges resti ng on
§ 315(b).
6
6
Defending Click-to-Call's interpretation, the dissent takes a view of
our precedent that neither Click-to-Call nor the Federal Circuit advances.
See post, at 75–78. The dissent does not consider itself bound by Cuozzo's
conclusion that § 314(d) bars appeal of “questions that are closely tied to
the application and interpretation of statutes related to the Patent Offce's
decision to initiate inter partes review,” 579 U. S., at 275. According to
the dissent, that statement is dicta later repudiated in SAS Institute Inc.
v. Iancu, 584 U. S. 357 (2018).
But Cuozzo concerned an appeal resting on a “related statutory section”:
§ 312(a)(3). 579 U. S., at 271. That § 312(a)(3) challenge was tied to insti-
tution, the Court explained, for two reasons: frst, because it “attack[ed] a
`determination . . . whether to institute' review,” id., at 272; second, be-
cause the § 312(a)(3) challenge was related to invoking § 314(a)'s condition
on institution, id., at 275–276. Cuozzo's recognition that § 314(d) can bar
challenges rooted in provisions other than § 314(a) was hardly “dicta,” post,
at 76–77—it was the Court's holding. And SAS Institute purported to
adhere to Cuozzo, not to overrule it. 584 U. S., at 370–371. The Court
in SAS Institute said, specifcally, that it discerned “nothing in . . . Cuozzo”
inconsistent with its conclusion. Id., at 371.
We do not so lightly treat our determinations as dicta and our decisions
as overruling others sub silentio. Nor can we countenance the dissent's
dangerous insinuation that today's decision is not “really” binding prece-
dent. Post, at 77–78 (“[W]ho can say?”); post, at 78 (“Litigants and lower
courts alike will just have to wait and see.”). Lest any “confusion” re-
main, post, at 77, we reaffrm today our holding in Cuozzo: Section 314(d)
generally precludes appeals of the agency's institution decision, including,
beyond genuine debate, appeals “consist[ing] of questions that are closely
tied to the application and interpretation of statutes related to” the insti-

60 THR
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Appendix to opinion of the Court
V
C
l ick-to-Ca l l presses an a lter native reason why the
Board's ruling on its § 315(b) objection is appealable. The
Board's fnal written decision addressed the § 315(b) issue, so
Click-to-Call argues that it may appeal under § 319, which
authorizes appeal from the fnal written decision. But even
labeled as an appeal from the fnal written decision, Click-to-
Call's attempt to overturn the Board's § 315(b) ruling is still
barred by § 314(d). Because § 315(b)'s sole offce is to govern
institution, Click-to-Call's contention remains, essentially,
that the agency should have refused to institute inter partes
rev iew. As explai ned, § 314(d) makes that contenti on
unreviewable.
***
For the reasons stated, we vacate the judgment of the
United States Court of Appeals for the Federal Circuit and
remand the case with instructions to dismiss for lack of ap-
pellate jurisdiction.
It is so ordered.
APPENDIX OF KEY STATUTORY PROVISIONS
35 U. S. C. § 314:
“Institution of inter partes review
“(a) Threshold.—The Director may not authorize an
inter partes review to be instituted unless the Director
determines that the information presented in the peti-
tion fled under section 311 and any response fled under
section 313 shows that there is a reasonable likelihood
that the petitioner would prevail with respect to at least
1 of the claims challenged in the petition.
“(b) Timing.—The Director shall determine whether
to institute an inter partes review under this chapter
tution decision. 579 U. S., at 271, 275. The appeal bar, we therefore reit-
erate, is not limited to the agency's application of § 314(a).

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61
Gorsuch, J., dissenting
pursuant to a petition fled under section 311 within 3
months
after—
“(1) receiving a preliminary response to the petition
under section 313; or
“(2) if no such preliminary response is fled, the last
date on which such response may be fled.
“(c) Notice.—The Director shall notify the petitioner
and patent owner, in writing, of the Director's determi-
nation under subsection (a), and shall make such notice
available to the public as soon as is practicable. Such
notice shall include the date on which the review shall
commence.
“(d) No Appeal.—The determination by the Director
whether to institute an inter partes review under this
section shall be fnal and nonappealable.”
35 U. S. C. § 315(b):
“Patent Owner’s Action.—An inter partes review
may not be instituted if the petition requesting the pro-
ceeding is fled more than 1 year after the date on which
the petitioner, real party in interest, or privy of the peti-
tioner is served with a complaint alleging infringement
of the patent. The time limitation set forth in the pre-
ceding sentence shall not apply to a request for joinder
under subsection (c).”
Justice Gorsuch, with whom Justice Sotomayor joins
as to Parts I, II, III, and IV, dissenting.
Today the Court takes a fawed premise—that the Consti-
tution permits a politically guided agency to revoke an inven-
tor's property right in an issued patent—and bends it fur-
ther, allowing the agency's decision to stand immune from
judicial review. Worse, the Court closes the courthouse not
in a case where the patent owner is merely unhappy with
the merits of the agency's decision but where the owner

62 THR
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Gorsuch, J., dissenting
claims the agency's proceedings were unlawful from the
st
art. Most remarkably, the Court denies judicial review
even though the government now concedes that the patent
owner is right and this entire exercise in property-taking-
by-bureaucracy was forbidden by law.
It might be one thing if Congress clearly ordained this
strange result. But it did not. The relevant statute, the
presumption of judicial review, and our precedent all point
toward allowing, not forbidding, inventors their day in court.
Yet, the Court brushes past these warning signs and, in the
process, carries us another step down the road of ceding core
judicial powers to agency offcials and leaving the disposition
of private rights and liberties to bureaucratic mercy.
I
Our story stretches back to the 1990s, when Stephen
DuVal invented a system for anonymizing telephone calls.
Believing in the promise of his idea, Mr. DuVal hired an at-
torney to secure a patent and sought avenues to bring his
invention to market. Initially, both efforts met with suc-
cess. In 1998, Mr. DuVal was awarded a U. S. Patent, which
he licensed to a company called InfoRocket.com, Inc.
But problems soon emerged. In 2001, InfoRocket accused
Ingenio, Inc., a predecessor of today's petitioner Thryv, Inc.,
of infringing Mr. DuVal's patent. The case carried on in fed-
eral district court for more than a year before InfoRocket
and Ingenio decided to merge. The companies then jointly
persuaded the court to dismiss InfoRocket's lawsuit without
prejudice.
Still, the quiet did not last long. Following the merger,
the surviving entity—for simplicity, call it Thryv—sought to
turn the tables on Mr. DuVal by asking the Patent Offce to
reconsider the validity of his patent in an ex parte reexami-
nation. That agency-led process dragged on for four more
years, and ended with a mixed verdict: The Patent Offce

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63
Gorsuch, J., dissenting
canceled a few claims, but amended others and permitted
Mr
. DuVal to add some new ones too.
Even the ex parte reexamination wasn't enough to put the
parties' disputes to rest. During the reexamination, Thryv
terminated its license with Mr. DuVal and stopped paying
him royalties. But it seems that Thryv continued using the
patented technology all the same. So Mr. Duval transferred
his patent to respondent Click-to-Ca ll Technolog ies LP
(CTC), which swiftly took the patent back to court. CTC
noted that Thryv couldn't exactly plead ignorance about this
patent, given that the company or its predecessors had pre-
viously licensed the patent, been sued for infringing it, and
asked the Patent Offce to reexamine it. When it came to
Mr. DuVal's patent, CTC alleged, Thryv had done just about
everything one can do to a patent except invent it.
Thryv responded by opening another new litigation front
of its own. One year after CTC fled its federal lawsuit,
Thryv lodged another administrative petition with the Pat-
ent Offce, this time seeking inter partes review. Echoing
some of the same arguments that led to its push for an
ex parte administrative reexamination nine years earlier,
and adding other arguments too, Thryv (again) asked the
agency to cancel Mr. DuVal's patent on the grounds that it
lacked novelty and was obvious. At the same time, Thryv
sought to stay proceedings in CTC's infringement suit.
Thryv argued that the district court should defer to the
newly initiated inter partes review. Like many district
courts facing the prospect of parallel administrative proceed-
ings, this one obliged.
Why at this late hour did Thryv prefer to litigate before
the agency rather than a federa l distr ic t cour t? The
agency's ex parte reexamination years earlier hadn't helped
Thryv much. But since then, Congress had adopted the
Leahy-Smith America Invents Act (AIA), 35 U. S. C. § 100
et seq. That law created the inter partes review process,

64 THR
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Gorsuch, J., dissenting
which provides a number of benefts to accused infringers
such
as Thryv. Like federal court litigation, inter partes
review holds the advantage of allowing a private party at-
tacking a patent's validity to participate in adversarial pro-
ceedings, rather than rely on the agency to direct its own
investigation as it does in ex parte reexamination. Compare
35 U. S. C. § 316 with §§ 302, 304, 305. Inter partes review
also allows a party challenging a patent all manner of discov-
ery, including depositions and the presentation of expert tes-
timony. § 316; 37 CFR §§ 42.51–42.65 (2019). At the same
time, the burden of proof is lower—requiring challengers like
Thryv to prove unpatentability only by a preponderance of
the evidence, § 316(e), rather than under the clear and con-
vincing standard that usually applies in court. Microsoft
Corp. v. i4i L. P., 564 U. S. 91 (2011). Perhaps most appeal-
ing, proceedings take place before the Patent Trial and Ap-
peal Board, rather than in an Article III court, so there is
no jury trial before a tenure-protected judge, only a hearing
before a panel of agency employees.
Some say the new regime represents a particularly eff-
cient new way to “kill” patents. Certainly, the numbers tell
an inviting story for petitioners like Thryv. In approxi-
mately 80% of cases reaching a fnal decision, the Board
cancels some or all of the challenged claims. Patent Trial
and Appeal Board, Trial Statistics 10 (Feb. 2020), https://
www.uspto.gov/sites/default/fles/documents/Trial_Statistics
_2020_02_29.pdf. The Board has been busy, too, instituting
more than 800 of these new proceedings every year. See
id., at 6.
Still, Thryv faced a hurdle. Inter partes review “may not
be instituted” based on an administrative petition fled more
than a year after “the petitioner, real party in interest, or
privy of the petitioner is served with a complaint alleging
infringement of the patent” in federal court. 35 U. S. C.
§ 315(b). So, while Congress sought to move many cases out
of court and into its new administrative process, it thought

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65
Gorsuch, J., dissenting
patent owners who have already endured long challenges in
cour
t shouldn't have to face another layer of administrative
review. After all, some repose is due inventors. Patents
typically last 20 years; what happens to the incentive to in-
vent if litigation over them lasts even longer (as it has for
Mr. DuVal)? By anyone's estimation, too, § 315(b)'s time bar
was sure to pose a special problem for Thryv. Yes, Thryv
had petitioned for inter partes review one year after being
served with CTC's complaint. But nearly 12 years had
passed since Thryv's predecessor and privy frst found itself
on the business end of a lawsuit alleging that it had infringed
Mr. DuVal's patent.
Despite this apparently fatal defect, the Board plowed
ahead anyway. No one could dispute that Thryv's predeces-
sor and privy had been “served with a complaint alleging
infringement of the patent” more than a decade earlier. But
that complaint didn't count, the Board declared, because it
was dismissed without prejudice. The Board cited nothing
in § 315(b) suggesting this distinction makes a difference
under the statute's plain terms. Instead, the Board tiptoed
past the problem and proceeded to invalidate almost all of
the patent claims before it, even those the Patent Offce itself
had affrmed in its own ex parte proceeding years before.
No doubt this was exactly what Thryv hoped for in its second
bite at the administrative apple.
Thryv's victory may have taken years to achieve, but it
didn't seem calculated to last long. Predictably, CTC ap-
pealed the Board's interpretation of § 315(b) to the Federal
Circuit. And just as unsurprisingly, the court held that dis-
missed complaints do count as complaints, so Thryv's inter
partes administrative challenge was time barred from the
start. Mr. DuVal's patent had already survived one ex parte
reexamination Thryv instigated. The patent had been the
subject of long and repeated litigation in federal courts.
The agency had no business opening yet another new inquiry
into this very old patent.

66 THR
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Gorsuch, J., dissenting
But Thryv had one maneuver left. It sought review in
th
is Court, insisting that Article III courts lack authority
even to say what the law demands. According to Thryv, a
different provision, § 314(d), renders the agency's interpreta-
tions and applications of § 315(b) immune from judicial re-
view. So the Board can err; it can even act in defance of
plain congressional limits on its authority. But, in Thryv's
view, a court can do nothing about it. Enforcement of
§ 315(b)'s time bar falls only to the very Patent Offce off-
cials whose authority it seeks to restrain. Inventors like
Mr. DuVal just have to hope that the bureaucracy revoking
their property rights will take the extra trouble of doing so
in accordance with law.
That's the strange place we now fnd ourselves. Thryv
managed to persuade the Court to grant its petition for cer-
tiorari to consider its extraordinary argument. And today
the Court vindicates its last and most remarkable maneuver.
II
A
How cou ld § 314(d) i nsu late from judicia l rev iew the
agency's—admittedly mistaken—interpretation of an en-
tirely different provision, § 315(b)? The answer is that it
doesn't.
To see why, look no further than § 314(d). The statute
tells us that “[t]he determination by the Director whether to
institute an inter partes review under this section shall be
fnal and nonappealable.” So the only thing § 314(d) insu-
lates from judicial review is “[t]he determination” made “by
the Director” “under this section”—that is, a determination
discussed within § 314. Nothing in the statute insulates
agency interpretations of other provisions outside § 314, in-
cluding those involving § 315(b).
Th is arrangement makes sense. Given that § 314(d)
speaks of “[t]he” determination by the Director “under this
section,” it comes as no surprise that the section mentions

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67
Gorsuch, J., dissenting
just one such “determination.” It is found in § 314(a), where
the
Director “determines” whether the parties' initial plead-
ings suggest “a reasonable likelihood” the petitioner will pre-
vail in defeating at least some aspect of the challenged pat-
ent. And it is easy to see why Congress might make a
preliminary merits assessment like that exempt from further
view: If the Director institutes a meritless petition, the
Board can summar ily affir m the patent's va lidity. See
§ 318(a); 37 CFR §§ 42.71–42.73. In any event, the Board is
obligated to render a fnal—and judicially reviewable—deci-
sion within a year. 35 U. S. C. §§ 141(c), 316(a)(11), 318(a),
319. So judicial review of the Director's initial appraisal of
the merits isn't really eliminated as much as it is channeled
toward the Board's fnal decision on those merits. That
process fnds a ready analogue elsewhere in our law. Much
as here, an indicted criminal defendant unhappy with a grand
jury's fnding of probable cause isn't permitted to challenge
that preliminary assessment, but may instead move the
court for acquittal after the government has presented all
its evidence. See Costello v. United States, 350 U. S. 359,
363 (1956); Fed. Rule Crim. Proc. 29(a).
Matters outside § 314 are different. Take the provision
before us, § 315(b). It promises that an inter partes review
“may not be instituted” more than a year after the initiation
of litigation. This stands as an affrmative limit on the
agency's authority. Much like a statute of limitations, this
provision supplies an argument a party can continue to press
throughout the life of the administrative proceeding and on
appeal. Nothing in § 315(b) speaks of a “determination by
the Director,” let alone suggests that the agency's initial rul-
ing on a petition's timeliness is “fnal and nonappealable.”
To pretend otherwise would invite a linguistic nonsense.
We would have to read § 314's language speaking of “[t]he”
“determination” “under this section” to include not one de-
termination but two—and to include not only the determina-
tion actually made under “this section” but also a second

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Gorsuch, J., dissenting
assessment made about the effect of an entirely different
sec
tion.
To pretend otherwise would invite a practical nonsense as
well. Because the Director's initial “reasonable likelihood”
determination under § 314(a) relates to the merits, it will be
effectively reviewed both by the Board and courts as the
case progresses. But when does the Director's application
of § 315(b)'s time bar get another look? Under Thryv's in-
terpretation, a provision that reads like an affrmative limit
on the agency's authority reduces to a mere suggestion. No
matter how wrong or even purposefully evasive, the Direc-
tor's assessment of a petition's timeliness is always immune
from review. And even that's not the end of it. In other
cases, the Board has claimed it has the right to review these
initial timeliness decisions, and Thryv seems content with
those rulings. See, e. g., Medtronic, Inc. v. Robert Bosch
Healthcare Systems, Inc., 839 F. 3d 1382 (CA Fed. 2016). So
it turns out the company doesn't really want to make an ini-
tial administrative timeliness decisions fnal; it just wants to
make them unreviewable in court, defying once more § 314's
plain language and any rational explanation, except maybe
as an expedient to win the day's case.
B
Confronting so many problems in the statute's text, Thryv
seeks a way around them by offering a competing account of
the law's operation. While § 314 empowers the Director to
make an institution decision, Thryv asserts that various pro-
visions scattered throughout the chapter—such as §§ 314(a),
315(a)(1), and 315( b)—help guide the decisi on. And on
Thryv's interpretation, all questions related to the Director's
institution decision should be insulated from review, no mat-
ter where those rules are found. What about the fact § 314
speaks of insulating only “[t]he” “determination” “under this
section”? Thryv says this language serves merely to indi-
cate which institution authority is unreviewable—namely,

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69
Gorsuch, J., dissenting
the Director's authority to institute an inter partes proceed-
i
ng pursuant to § 314, rather than pursuant to some other
provision.
This interpretation, however, makes a nullity of the very
language it purports to explain. Section 314 is the only sec-
tion that authorizes the Director to institute inter partes re-
view, making it pointless for Congress to tell us that we're
talking about the Director's § 314 inter partes review institu-
tion authority as opposed to some other inter partes review
institution authority. In fact, you can strike “under this sec-
tion” from § 314(d) and Thryv's interpretation remains un-
changed. That's a pretty good clue something has gone
wrong.
Faced with this problem of surplusage, Thryv alludes to
the possibility that Congress included redundant language to
be “double sure.” But double sure of what? Thryv does
not identify any confusion that the phrase “under this sec-
tion” might help avoid. Given the lack of any other provi-
sion, anywhere in the U. S. Code, authorizing anyone to in-
stitute inter partes review, even the most obtuse reader
would never have any use for the clarifcation supposedly
provided by “under this section” on Thryv's account.
Maybe so, Thryv replies, but we shouldn't worry about the
sur plusage here because the AIA cont ai ns sur plusage
elsewhere. The other putative examples of surplusage
Thryv identifes, however, have no bearing on the provision
now before us. And even a passing glance reveals no sur-
plusage in them either. Consider § 315(c). It says that “the
Director, in his or her discretion, may join as a party to that
inter partes review any person who properly fles a petition
under section 311 that the Director, after receiving a prelim-
inary response under section 313 . . . , determines warrants
the institution of an inter partes review under section 314.”
(Emphasis added.) Thryv arg ues that a l l these cross-
references are unnecessary. But look closely: Each of
§ 315(c)'s cross-references does important work to establish

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Gorsuch, J., dissenting
the rules for joinder. Strike the frst and the requirements
of
a joinder petition become undefned. Strike the second
and it's a mystery what kind of response the patent owner is
entitled to fle. Strike the third and the Director's determi-
nation whether to grant joinder becomes standardless. All
of this language has a point to it—just as “under this section”
does under a faithful interpretation of § 314(d).
That leaves Thryv only one more tenuous textual lifeline
left to toss. If Congress had wanted to insulate from review
only “[t]he” “determination” that a petition has a “reasonable
likelihood” of success, the company suggests, Congress could
have spoken of insulating “the determination under subsec-
tion (a)” rather than “the determination under this section.”
And Thryv reminds us that Congress used that latter formu-
lation in nearby and predecessor statutes. See, e. g., § 303(c)
(“A determination by the Director pursuant to subsection
(a) of this section . . . will be fnal and nonappealable”);
§ 312(c) (2006 ed.; repealed 2011) (“A determination by
the Director under subsection (a) shall be fnal and non-
appealable”).
But so what? One could replace the phrase “my next-
door neighbor to the west” with “my neighbor at 123 Main
Street” (assuming that is her address) and the meaning
would be the same. Likewise, it hardly matters whether
Congress spoke of the “determination” “under this section”
or “under subsection (a).” Either way, our attention is di-
rected within, not beyond, § 314. And what's Thryv's alter-
native? It would have us read language speaking of the Di-
rector's determination “under this section” to encompass any
decision related to the initiation of inter partes review found
anywhere in the AIA—an entire chapter of the U. S. Code.
That's sort of like reading “my next-door neighbor to the
west” to include “anyone in town.” Nor do things get better
for Thryv with a careful assessment of nearby and predeces-
sor statutes. They reveal that Congress knew exactly how
to give broader directions like the one Thryv imagines when

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71
Gorsuch, J., dissenting
it wished to do so. See, e. g., § 314(b) (directing our atten-
ti
on to the Director's decision whether to institute inter par-
tes review “under this chapter” rather than “under this
section”).
Without any plausible textual or contextual hook for its
position, Thryv fnishes by advancing a parade of policy hor-
ribles. It notes that the AIA imposes lots of other con-
straints on inter partes review besides the § 315(b) timing
provision now before us. For example, the law bars peti-
tioners who have fled declaratory judgment actions from
challenging the same patent in inter partes review proceed-
ings, § 315(a)(1), and it estops petitioners from seeking other
forms of review once an inter partes proceeding fnishes,
§ 315(e). If courts are going to review the agency's applica-
tion of § 315(b), Thryv wonders, are they going to have to
review the agency's application of these other provisions too?
But we could just as easily march this parade in the oppo-
site directi on. Even assuming (w ithout deciding) that
Thryv is right and the reviewability of all these provisions
stands or falls together, that seems at least as good an argu-
ment for as against judicial review. If so much more is at
stake, if many more kinds of agency errors could be insulated
from correction, isn't that a greater reason to pay assiduous
attention to the statute's terms? Surely, Thryv's professed
concern for judicial economy supplies no license to ignore our
duty to decide the cases properly put to us in accord with
the statute's terms.
III
This last point leads to another reason why we should re-
ject Thryv's reading of the statute. Even if the company
could muster some doubt about the reach of § 314(d), it
wouldn't be enough to overcome the “well-settled presump-
tion favoring interpretations of statutes that allow judicial
review of administrative action.” McNary v. Haitian Refu-
gee Center, Inc., 498 U. S. 479, 496 (1991). As this Court has
long explained, “we will . . . fnd an intent to preclude such

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Gorsuch, J., dissenting
review only if presented with clear and convincing evidence.”
Reno
v. Catholic Social Services, Inc., 509 U. S. 43, 64 (1993)
(internal quotation marks omitted).
The presumption of judicial review is deeply rooted in our
history and separation of powers. To guard against arbi-
trary government, our founders knew, elections are not
enough: “An elective despotism was not the government we
fought for.” The Federalist No. 48, p. 311 (C. Rossiter ed.
1961) (emphasis deleted). In a government “founded on free
principles,” no one person, group, or branch may hold all the
keys of power over a private person's liberty or property.
Ibid. Instead, power must be set against power, “divided
and balanced among several bodies . . . checked and re-
strained by the others.” Ibid. As Chief Justice Marshall
put it: “It would excite some surprise if, in a government of
laws and of principle, . . . a department whose appropriate
duty it is to decide questions of right, not only between indi-
viduals, but between the government and individuals,” a
statute might leave that individual with “no remedy, no ap-
peal to the laws of his country, if he should believe the claim
to be unjust.” United States v. Nourse, 9 Pet. 8, 28–29
(1835).
It should come as an equal surprise to think Congress
might have imposed an express limit on an executive bu-
reaucracy's authority to decide the rights of individuals, and
then entrusted that agency with the sole power to enforce
the limits of its own authority. Yet on Thryv's account,
§ 315(b)'s command that “inter partes review may not be in-
stituted” would be left entrusted to the good faith of the
very executive offcials it is meant to constrain. (Emphasis
added.) We do not normally rush to a conclusion that Con-
gress has issued such “ `blank checks drawn to the credit of
some administrative offcer.' ” Bowen v. Michigan Acad-
emy of Family Physicians, 476 U. S. 667, 671 (1986) (quoting
S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)).

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73
Gorsuch, J., dissenting
That usually may be the case, Thryv counters, but this
st
atute's unusually modest purpose makes it plausible to
think Congress meant to shield its application from judicial
review. After all, the company submits, § 315(b) is not
really a frm limit on the agency's authority, only a claim
processing rule. For proof, the company reminds us that
§ 315(b) bars challengers who have already spent a year liti-
gating in court from petitioning the agency, but leaves open
the possibility that the agency might still institute inter par-
tes review if a different, eligible petitioner happens to come
along. And this theoretical possibility, Thryv tells us, sug-
gests that the agency was meant to be allowed to act as
it wants.
But Thryv's reply here is like saying Article III's “case or
controversy” requirement isn't really a limit on the power of
federal courts, because it's always possible that some litigant
with a live dispute will come forward and require the court
to settle a particular legal question. The implacable fact is
that nothing in the AIA gives the Director or the Board
freewheeling authority to conduct inter partes review. The
statute demands the participation of a real party in interest,
a petitioner who is not barred by prior litigation and who is
willing to face estoppel should he lose. §§ 311(a), 315. And
if, as seems likely in our case and many others, no one is
willing and able to meet those conditions, the law does not
permit inter partes review. So rather than a claim process-
ing rule, § 315 is both a constraint on the agency's power and
a valuable guarantee that a patent owner must battle the
same foe only once.
Realizing that its textual arguments are too strained to
demonstrate clearly and convincingly that Congress meant
to displace judicial review, Thryv asks us to draw “infer-
ences” from the AIA “as a whole.” Brief for Petitioner 16
(internal quotation marks omitted). In particular, the com-
pany tells us that Congress's “overriding purpose” in creat-

74 THR
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Gorsuch, J., dissenting
ing inter partes review was to “weed out poor quality pat-
ents”
and that judicial enforcement of § 315(b) would slow
this progress. Id., at 24 (quotation altered). But to sup-
port its thematic account of the law's goals, Thryv rests on
one thin reed after another—a House Report here, a foor
statement there, and a few quotations from Cuozzo Speed
Technologies, LLC v. Lee, 579 U. S. 261 (2016), that summa-
rize these same sources. All the rest is generously flled in
by the company's own account about how inter partes review
ought to work.
That's far from enough. The historic presumption of judi-
cial review has never before folded before a couple stray
pieces of legislative history and naked policy appeals. Be-
sides, Thryv's submissions cannot withstand the mildest in-
spection even on their own terms. No one doubts that Con-
gress authorized inter partes review to encourage further
scrutiny of already issued patents. But lost in Thryv's tell-
ing about the purposes of the AIA is plenty of evidence that
Congress also included provisions to preserve the value of
patents and protect the rights of patent owners. For exam-
ple, Congress sharply limited the legal grounds that might
be pursued in inter partes review, § 311(b); afforded patent
owners an opportunity to respond to petitions prior to insti-
tution, § 313; and, most relevant today, protected patent own-
ers from the need to fght a two-front war before both the
Board and federal district court, § 315. Legislating involves
compromise, and it would be naive to think that, as the price
for their zealous new procedures for canceling patents, those
who proposed the AIA didn't have to accept some protec-
tions like these for patent holders. Yet, Thryv glides past
all these provisions without comment. Worse, taking the
company's argument to its logical conclusion could render
these protections into “ `merely advisory' ” features of the
law. Bowen, 476 U. S., at 671. If adopted, Thryv's vision of
an administrative regime singularly focused on the effcient
canceling of patents could become self-fulflling.

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75
Gorsuch, J., dissenting
A case decided just weeks ago supplies a telling point
of
comparison. In Guerrero-Lasprilla v. Barr, 589 U. S.
221 (2020), Congress sought to expedite the removal of
aliens convicted of certain aggravated felonies by foreclos-
ing judicial review of their cases unless they raised “ques-
tions of law.” See 8 U. S. C. §§ 1252(a)(2)(C), (D). But the
statute there was ambiguous about mixed questions of law
and fact: Were these (reviewable) questions of law, or (un-
reviewable) determinations of fact? Because the statute
could be interpreted either way, this Court held, the pre-
sumption of reviewability preserved the aliens' ability to
argue mixed questions on appeal. Today, the textual argu-
ments for shielding the agency's decision from review are
even weaker, and the same presumption that preserved judi-
cial review for felons seeking discretionary relief from re-
moval should do no less work for patent holders seeking to
defend their inventions.
IV
Even if the statute's plain language and the presumption
in favor of review dictate a ruling against it, Thryv fnishes
by suggesting we must ignore all that and rule for it anyway
because precedent commands it. Maybe our precedent is
wrong, the company says, but it binds us all the same.
In particular, Thryv points us to Cuozzo. There, the
Court suggested that § 314(d) could preclude review in cases:
(1) where a litigant challenges the Director's reasonable like-
lihood of success determination under § 314(a), or (2) where
a litigant “grounds its claim in a statute closely related to
that decision to institute inter partes review.” 579 U. S., at
275–276. That frst path is faithful to the plain language of
§ 314(d). The second appears nowhere in the statute but is,
instead, a product of the judicial imagination. Still, Thryv
says, we must follow that path wherever it leads and, be-
cause § 315(b) decisions are “closely related” to § 314(a) deci-
sions, we shouldn't review them.

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Gorsuch, J., dissenting
But Cuozzo hardly held so much. In fact, Cuozzo had no
need
to explore the second path it imagined, for it quickly
concluded that the argument before it was “little more than
a challenge to the Patent Offce's conclusion . . . under
§ 314(a),” a decision shielded from judicial review under any
interpretation of § 314(d). Id., at 276. So all the discussion
about the reviewability of decisions outside § 314(a) turned
out to be nothing more than dicta entirely unnecessary to
the decision. Nor did anything in Cuozzo directly address
§ 315(b) decisions, let alone declare them to be “close enough”
to § 314(a) decisions to preclude judicial review.
That's just the beginning of Thryv's precedent problems,
too. In SAS Institute Inc. v. Iancu, 584 U. S. 357 (2018),
an inter partes review petitioner challenged the Director's
practice of instituting review of some, but not all, of the
claims challenged in a single petition. The government ar-
gued there—much as Thryv argues today—that § 314(d)
shielded this unlawful practice from judicial review. In ad-
vancing this argument, the government seized on the same
language in Cuozzo that Thryv now embraces, claiming that
its opponent's “grounds for attacking the decision . . . are
closely tied” to the § 314(a) institution decision. Brief for
Federal Respondent in SAS Institute Inc. v. Iancu, O. T.
2017, No. 16–969, p. 13. Because no one could say that the
petitioner's argument in SAS Institute was “little more than
a challenge to the Patent Offce's conclusion . . . under § 314(a),”
584 U. S., at 371, we were forced to confront whether Cuozzo
and the relevant statutes actually barred not just institution
decisions under § 314(a) but things “closely related” to them.
We held they did not. We began, as we did in Cuozzo, by
noting the “strong presumption in favor of judicial review.”
SAS Institute, 584 U. S., at 370 (internal quotation marks
omitted). We then put an end to any doubt about what the
dicta in that case might mean: “Given the strength of this
presumption and the statute's text, Cuozzo concluded that
§ 314(d) precludes judicial review only of the Director's `ini-

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77
Gorsuch, J., dissenting
tial determination' under § 314(a).” Ibid. (quoting Cuozzo,
579
U. S., at 273; emphasis added). We did not need to over-
rule Cuozzo, because the language the government seized
upon from that opinion was dicta from the start. Still, we
made it clear that dicta's day had come: To read Cuozzo as
“foreclosing judicial review of any legal question bearing on
the institution [decision],” we explained, would “overrea[d]
both the statute and our precedent.” SAS Institute, 584
U. S., at 370. The petitioner's challenge to the Director's
par tia l i nstituti on prac tice cou ld go for ward exac tly
because it was something other than a disagreement about
the Director's initial determination under § 314(a). Id., at
370–371.
It's not surprising that litigants would invite us to over-
read dicta or overlook an unfavorable precedent. What is
surprising is that the Court would accept the invitation. In
``cases involving property,” after all, “considerations favoring
stare decisis are at their acme.” Kimble v. Marvel Enter-
tainment, LLC, 576 U. S. 446, 457 (2015) (internal quotation
marks omitted). And we are often reminded that “stare de-
cisis carries enhanced force when a decision . . . interprets a
statute.” Id., at 456. But rather than searching for the
kind of “superspecial justifcation,” id., at 458, this Court
supposedly requires to overrule a precedent like SAS Insti-
tute, today's majority quibbles with a few sentences and qui-
etly walks away. If, as some have worried, “[e]ach time the
Court overrules a case, the Court . . . cause[s] the public to
become increasingly uncertain about which cases the Court
will overrule,” Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S.
230, 260–261 (2019), (Breyer, J., dissenting), one can only
imagine what a judicial shrug of the shoulders like this
might yield.
Litigants and lower courts will also have to be forgiven
for the confusion to come about the meaning of § 314(d)'s re-
view bar. Whether it is limited to the § 314(a) determina-
tion (as SAS Institute held and parts of Cuozzo suggested)

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Gorsuch, J., dissenting
or also reaches to challenges grounded in “closely related”
st
atutes (as other parts of Cuozzo suggested and the Court
insists today)—who can say? And even supposing that
“closely related to institution” really is the test we'll apply
next time, does anyone know what this judicially concocted
formulation even means? Despite three opinions interpret-
ing the same provision in under fve years, only one thing is
clear: Neither the statute nor our precedent can be counted
upon to give the answer. Litigants and lower courts alike
will just have to wait and see.
V
It's a rough day when a decision manages to defy the plain
language of a statute, our interpretative presumptions, and
our precedent. But today that's not the worst of it. The
Court's expansive reading of § 314(d) takes us further down
the road of handing over judicial powers involving the dispo-
sition of individual rights to executive agency offcials.
We started the wrong turn in Oil States Energy Services,
LLC v. Greene's Energy Group, LLC, 584 U. S. 325 (2018).
There, a majority of this Court acquiesced to the AIA's pro-
visions allowing agency offcials to withdraw already-issued
patents subject to very limited judicial review. As the ma-
jority saw it, patents are merely another public franchise
that can be withdrawn more or less by executive grace. So
what if patents were, for centuries, regarded as a form of
personal property that, like any other, could be taken only
by a judgment of a court of law. So what if our separation
of powers and history frown on unfettered executive power
over individuals, their liberty, and their property. What the
government gives, the government may take away—with
or without the involvement of the independent Judiciary.
Today, a majority compounds that error by abandoning a good
part of what little judicial review even the AIA left behind.
Just try to imagine this Court treating other individual
liberties or forms of private property this way. Major por-

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79
Gorsuch, J., dissenting
tions of this country were settled by homesteaders who
moved
west on the promise of land patents from the federal
government. Much like an inventor seeking a patent for his
invention, settlers seeking these governmental grants had to
satisfy a number of conditions. But once a patent issued,
the granted lands became the recipient's private property, a
vested right that could be withdrawn only in a court of law.
No one thinks we would allow a bureaucracy in Washington
to “cancel” a citizen's right to his farm, and do so despite the
government's admission that it acted in violation of the very
statute that gave it this supposed authority. For most of
this Nation's history it was thought an invention patent
holder “holds a property in his invention by as good a title
as the farmer holds his farm and fock.” Hovey v. Henry, 12
F. Cas. 603, 604 (No. 6,742) (CC Mass. 1846) (Woodbury, J., for
the court). Yet now inventors hold nothing for long without
executive grace. An issued patent becomes nothing more
than a transfer slip from one agency window to another.
Some seek to dismiss this concern by noting that the bu-
reaucracy the AIA empowers to revoke patents is the same
one that grants them. But what comfort is that when the
Constitution promises an independent judge in any case in-
volving the deprivation of life, liberty, or property? Would
it make things any better if we assigned the Department of
the Interior the task of canceling land patents because that
agency initially allocated many of them? The relevant con-
stitutional fact is not which agency granted a property right,
but that a property right was granted.
The abdication of our judicial duty comes with a price.
The Director of the Patent and Trademark Offce is a politi-
cal appointee. The AIA vests him with unreviewable au-
thority to institute (or not) inter partes review. Nothing
would prevent him, it seems, from insulating his favorite
frms and industries from this process entirely. Those who
are not so fortunate proceed to an administrative “trial”
before a panel of agency employees that the Director also

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has the means to control. The AIA gives the Director the
power
to select which employees, and how many of them,
will hear any particular inter partes challenge. It also gives
him the power to decide how much they are paid. And if a
panel reaches a result he doesn't like, the Director claims he
may order rehearing before a new panel, of any size, and
including even himself.
No one can doubt that this regime favors those with politi-
cal clout, the powerful, and the popular. But what about
those who lack the resources or means to infuence and
maybe even capture a politically guided agency? Consider
Mr. DuVal, who 25 years ago came up with something the
Patent Offce agreed was novel and useful. His patent sur-
vived not only that initial review but a subsequent adminis-
trative ex parte review, a lawsuit, and the initiation of
another. Yet, now, after the patent has expired, it is chal-
lenged in still another administrative proceeding and retro-
actively expunged by an agency that has, by its own admis-
sion, acted unlawfully. That is what happens when power
is not balanced against power and executive action goes un-
checked by judicial review. Rather than securing incentives
to invent, the regime creates incentives to curry favor with
offcials in Washington.
Nor is it hard to imagine what might lie around the corner.
Despite repeated lawsuits, no court ever ruled defnitively
on Mr. DuVal's patents. But suppose one had—and suppose
he had prevailed. According to the agency, even that judg-
ment might not matter much. In other cases, the Board has
claimed the power through inter partes review to overrule
fnal judicial judgments affrming patent rights. In the Di-
rector's estimation, it appears, even this Court's decisions
must bow to the Board's will. See XY, LLC v. Trans Ova
Genetics, L. C., 890 F. 3d 1282, 1285–1286, 1294–1295 (CA
Fed. 2018); Fresenius USA, Inc. v. Baxter Int'l, Inc., 721
F. 3d 1330, 1340–1344 (CA Fed. 2013). It's no wonder, then,
that district courts sometimes throw up their hands and let

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81
Gorsuch, J., dissenting
the Board take over whenever inter partes review and pat-
ent
litigation begin to overlap. Why bother with a trial if
“[t]he fnality of any judgment rendered by [a] Court will be
dubious”? Order Granting Stay in Click-to-Call Technolo-
gies LP v. Ingenio, Inc., No. 12–cv–00465 (WD Tex.), Doc.
No. 147, p. 4.
It's understandable, too, why the agency might think so
much is up for grabs. Not only did this Court give away
much of its Article III authority in Oil States on a mistaken
assessment that patents were historically treated as public
franchises rather than private rights. Some would have had
the Court go even further. Rather than looking to history
to determine how patents were treated, as both the majority
and dissent sought to do, these Members of the Court sug-
gested that agencies should be allowed to withdraw even
private rights if “a number of factors”—taken together,
of course—suggest it's a good idea. Commodity Futures
Trading Comm'n v. Schor, 478 U. S. 833, 851 (1986); see also
Oil States, 584 U. S., at 345 (Breyer, J., concurring). These
“factors” turn out to include such defnitive and easily bal-
anced considerations as the “nature of the claim,” the “na-
ture of the non-Article III tribunal,” and the “nature and
importance of the legislative purpose served by the grant of
adjudicatory authority to a tribunal with judges who lack
Article III's tenure and compensation protections.” Stern v.
Marshall, 564 U. S. 462, 513 (2011) (Breyer, J., dissenting).
In other words, Article III promises that a person's private
rights may be taken only in proceedings before an independ-
ent judge, unless the government's goals would be better
served by a judge who isn't so independent.
Thryv seeks to assure us that affected parties can still fle
writs of mandamus in courts if the Patent Offce gets really
out of hand. But the Court today will not say whether man-
damus is available where the § 314(d) bar applies, and the
Federal Circuit has cast doubt on that possibility. In re
Power Integrations, Inc., 899 F. 3d 1316, 1319 (2018) (“We

82 THR
YV, INC. v. CLICK-TO-CALL TECHNOLOGIES, LP
Gorsuch, J., dissenting
have held that the statutory prohibition on appeals from de-
cisi
ons not to institute inter partes review cannot be side-
stepped simply by styling the request for review as a peti-
tion for mandamus”); In re Procter & Gamble Co., 749 F. 3d
1376 (2014); In re Dominion Dealer Solutions, LLC., 749
F. 3d 1379 (2014). Even assuming mandamus is available, it
is a “drastic [remedy], to be invoked only in extraordinary
situations.” Kerr v. United States Dist. Court for Northern
Dist. of Cal., 426 U. S. 394, 402 (1976). To be eligible for
this discretionary relief, a petitioner must frst show a “clear
and indisputable” right. Id., at 403 (internal quotation
marks omitted). But how often could a litigant show such a
“clear and indisputable” right in an area where courts shirk
their duty to say what the law is in the frst place? And
how would a court fnd the will to call a situation “extraordi-
nary” once the agency has been free for so long to ignore the
limits on its power? If the case before us doesn't qualify as
“extraordinary,” and if the Board's admitted fouting of
§ 315(b) isn't “clear and indisputable,” then what extralegal
act wouldn't be just another day at the offce?
*
Two years ago, this Court sanctioned a departure from
the constitutional plan, one in which the Executive Branch
assumed responsibilities long reserved to the Judiciary. In
so doing, we denied inventors the right to have their claims
tried before independent judges and juries. Today we com-
pound that error, not only requiring patent owners to try
their disputes before employees of a political branch but lim-
iting their ability to obtain judicial review when those same
employees fail or refuse to comply with the law. Nothing in
the statute commands this result, and nothing in the Consti-
tution permits it. Respectfully, I dissent.

OCTOBER
TERM, 2019
83
Syllabus
RAMOS v. LOUISIANA
certiorari
to the court of appeal of louisiana,
fourth circuit
No. 18–5924. Argued October 7, 2019—Decided April 20, 2020
In 48 States and federal court, a single juror's vote to acquit is enough to
prevent a conviction. But two States, Louisiana and Oregon, have long
punished people based on 10-to-2 verdicts. In this case, petitioner
Evangelisto Ramos was convicted of a serious crime in a Louisiana court
by a 10-to-2 jury verdict. Instead of the mistrial he would have re-
ceived almost anywhere else, Ramos was sentenced to life without pa-
role. He contests his conviction by a nonunanimous jury as an unconsti-
tutional denial of the Sixth Amendment right to a jury trial.
Held: The judgment is reversed.
2016–1199 (La. App. 4 Cir. 11/2/17), 231 So. 3d 44, reversed.
Justice Gorsuch delivered the opinion of the Court with respect to
Parts I, II–A, III, and IV–B–1, concluding that the Sixth Amendment
right to a jury trial—as incorporated against the States by way of the
Fourteenth Amendment—requires a unanimous verdict to convict a de-
fendant of a serious offense. Pp. 89–95, 96–100, 105–109.
(a) The Constitution's text and structure clearly indicate that the
Sixth Amendment term “trial by an impartial jury” carries with it some
meaning about the content and requirements of a jury trial. One such
requirement is that a jury must reach a unanimous verdict in order to
convict. Juror unanimity emerged as a vital common law right in 14th-
century England, appeared in the early American state constitutions,
and provided the backdrop against which the Sixth Amendment was
drafted and ratifed. Postadoption treatises and 19th-century Ameri-
can legal treatises confrm this understanding. This Court has com-
mented on the Sixth Amendment's unanimity requirement no fewer than
13 times over more than 120 years, see, e. g., Thompson v. Utah, 170
U. S. 343, 351; Patton v. United States, 281 U. S. 276, 288, and has also
explained that the Sixth Amendment right to a jury trial is incorporated
against the States under the Fourteenth Amendment, Duncan v. Loui-
siana, 391 U. S. 145, 148–150. Thus, if the jury trial right requires a
unanimous verdict in federal court, it requires no less in state court.
Pp. 89–93.
(b) Louisiana's and Oregon's unconventional schemes were frst con-
fronted in Apodaca v. Oregon, 406 U. S. 404, and Johnson v. Louisiana,

84 RAMOS
v. LOUISIANA
Syllabus
406 U. S. 356, in a badly fractured set of opinions. A four-Justice plural-
ity
, questioning whether unanimity serves an important “function” in
“contemporary society,” concluded that unanimity's costs outweighed its
benefts. Apodaca, 406 U. S., at 410. Four dissenting Justices recog-
nized that the Sixth Amendment requires unanimity, and that the guar-
antee is fully applicable against the States under the Fourteenth
Amendment. The remaining Justice, Justice Powell, adopted a “dual-
track” incorporation approach. He agreed that the Sixth Amendment
requires unanimity but believed that the Fourteenth Amendment does
not render this guarantee fully applicable against the States—even
though the dual-track incorporation approach had been rejected by the
Court nearly a decade earlier, see Malloy v. Hogan, 378 U. S. 1, 10–11.
Pp. 93–95.
(c) The best Louisiana can suggest is that all of the Court's prior
statements that the Sixth Amendment does require unanimity are dicta.
But the State offers no hint as to why the Court would walk away from
those statements now and does not dispute the fact that the common
law required unanimity. Instead, it argues that the Sixth Amendment's
drafting history—in particular, that the original House version's explicit
unanimity references were removed in the Senate version—reveals the
framer's intent to leave this particular feature of the common law be-
hind. But that piece of drafting history could just as easily support the
inference that the language was removed as surplusage because the
right was so plainly understood to be included in the right to trial by
jury. Finally, the State invites the Court to perform a cost-beneft anal-
ysis on the historic features of common law jury trials and to conclude
that unanimity does not make the cut. The dangers of that approach,
however, can be seen in Apodaca, where the plurality subjected the
ancient guarantee of a unanimous jury verdict to its own functionalist
assessment. Pp. 96–100.
(d) Factors traditionally considered by the Court when determining
whether to preserve precedent on stare decisis grounds do not favor
upholding Apodaca. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S.
230, 248. Starting with the quality of Apodaca's reasoning, the plural-
ity opinion and separate concurring opinion were gravely mistaken.
And Apodaca sits uneasily with 120 years of preceding case law. When
it comes to reliance interests, neither Louisiana nor Oregon claims any-
thing like the prospective economic, regulatory, or social disruption liti-
gants seeking to preserve precedent usually invoke. The fact that Lou-
isiana and Oregon may need to retry defendants convicted of felonies by
nonunanimous verdicts whose cases are still pending on direct appeal
will surely impose a cost, but new rules of criminal procedure usually

Cite
as: 590 U. S. 83 (2020)
85
Syllabus
do, see, e. g., United States v. Booker, 543 U. S. 220, and prior convictions
i
n only two States are potentially affected here. Pp. 105–109.
Justice Gorsuch, joi ned by Justice Ginsburg and Justice
Breyer, concluded in Part IV–A that Apodaca lacks precedential force.
Treating that case as precedential would require embracing the dubious
proposition that a single Justice writing only for himself has the author-
ity to bind this Court to already rejected propositions. No prior case
has made such a suggestion. Pp. 101–105.
Justice Gorsuch, joined by Justice Ginsburg, Justice Breyer,
and Justice Sotomayor, concluded in Parts IV–B–2 and V that Louisi-
ana's and Oregon's reliance interests in the security of their fnal crimi-
nal judgments do not favor upholding Apodaca. Worries that defend-
ants whose appeals are already complete might seek to challenge their
nonunanimous convictions through collateral review are overstated.
Cf. Teague v. Lane, 489 U. S. 288. Apodaca's reliance interests are not
boosted by Louisiana's recent decision to bar the use of nonunanimous
jury verdicts. A ruling for Louisiana would invite other States to relax
their own unanimity requirements, and Louisiana continues to allow
nonunanimous verdicts for crimes committed before 2019. Pp. 109–111.
Justice Thomas concluded that Ramos' felony conviction by a non-
unanimous jury is unconstitutional because the Sixth Amendment's pro-
tection against nonunanimous felony guilty verdicts applies against the
States through the Privileges or Immunities Clause of the Fourteenth
Amendment, not the Due Process Clause. Pp. 132–140.
Gorsuch, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in
which Ginsburg, Breyer, Sotomayor, and Kavanaugh, JJ., joined, an
opinion with respect to Parts II–B, IV–B–2, and V, in which Ginsburg,
Breyer, and Sotomayor, JJ., joined, and an opinion with respect to Part
IV–A, in which Ginsburg and Breyer, JJ., joined. Sotomayor, J., fled
an opinion concurring as to all but Part IV–A, post, p. 111. Kavanaugh,
J., fled an opinion concurring in part, post, p. 115. Thomas, J., fled an
opinion concurring in the judgment, post, p. 132. Alito, J., fled a dissent-
ing opinion, in which Roberts, C. J., joined, and in which Kagan, J., joined
as to all but Part III–D, post, p. 140.
Jeffrey L. Fisher argued the cause for petitioner. With
him on the briefs were G. Ben Cohen, Brian H. Fletcher,
Pamela S. Karlan, and Yaira Dubin.
Elizabeth B. Murrill, Solicitor General of Louisiana, ar-
gued the cause for respondent. With her on the brief were

86 RAMOS
v. LOUISIANA
Counsel
Jeff Landry, Attorney General, Michelle Ghetti, Deputy
Sol
icitor General, Colin Clark, Assistant Attorney General,
Donna Andrieu, William S. Consovoy, and Jeffrey M.
Harris.*
*Briefs of amici curiae urging reversal were fled for the State of New
York et al. by Letitia James, Attorney General of New York, Barbara D.
Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General,
and Ester Murdukhayeva, Assistant Solicitor General, and by the Attor-
neys General for their respective jurisdictions as follows: Xavier Becerra
of California, Karl A. Racine of the District of Columbia, Kwame Raoul
of Illinois, Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron
D. Ford of Nevada, Thomas J. Donovan, Jr., of Vermont, and Mark R.
Herring of Virginia; for the American Bar Association by Robert M. Carl-
son, Paul R. Q. Wol fson, and Eric L. Hawkins; for the American Civil
Liberties Union et al. by David D. Cole, Brian W. Stull, Cassandra
Stubbs, Katie Schwartzmann, and Bruce Hamilton; for Innocence Project
New Orleans et al. by Emily Maw; for the Institute for Justice by Wesley
P. Hottot and Michael E. Bindas; for Law Professors et al. by Elizabeth
B. Wydra and Brianne J. Gorod; for the NAACP Legal Defense & Educa-
tional Fund, Inc., by Daniel S. Harawa, Sherrilyn A. Ifll, Janai S. Nel-
son, Samuel Spital, and Kristen A. Johnson; for the National Association
of Criminal Defense Lawyers by Timothy P. O'Toole and Barbara E. Berg-
man; for Prominent Current and Former State Executive and Judicial
Offcers et al. by Shaun S. McCrea and Jeff Ellis; and for The Rutherford
Institute by Michael J. Lockerby, David A. Hickerson, Jay N. Varon, and
John W. Whitehead.
Briefs of amici curiae urging affrmance were fled for the State of
Oregon by Ellen F. Rosenblum, Attorney General of Oregon, Benjamin
Gutman, Solicitor General, and Doug M. Petrina and Christopher A. Per-
due, Assistant Attorneys General; and for the State of Utah et al. by Sean
D. Reyes, Attorney General of Utah, Tyler R. Green, Solicitor General,
Thomas B. Brunker, Deputy Solicitor General, and John J. Nielsen and
Nathan H. Jack, Assistant Solicitors General, and by the Attorneys Gen-
eral for their respective jurisdictions as follows: Steve Marshall of Ala-
bama, Kevin G. Clarkson of Alaska, Leslie Rutledge of Arkansas, Ashley
Moody of Florida, Christopher M. Carr of Georgia, Derek Schmidt of
Kansas, Doug Peterson of Nebraska, Mike Hunter of Oklahoma, Isaias
Sanchez-Baez of Puerto Rico, Jason Ravnsborg of South Dakota, Herbert
Slatery III of Tennessee, Ken Paxton of Texas, and Patrick Morrisey of
West Virginia.

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as: 590 U. S. 83 (2020)
87
Opinion of the Court
Justice Gorsuch announced the judgment of the Court
and
delivered the opinion of the Court with respect to Parts
I, II–A, III, and IV–B–1, an opinion with respect to Parts
II–B, IV–B–2, and V, in which Justice Ginsburg, Justice
Breyer, and Justice Sotomayor join, and an opinion with
respect to Part IV–A, in which Justice Ginsburg and Jus-
tice Breyer join.
Accused of a serious crime, Evangelisto Ramos insisted on
his innocence and invoked his right to a jury trial. Eventu-
ally, 10 jurors found the evidence against him persuasive.
But a pair of jurors believed that the State of Louisiana had
failed to prove Mr. Ramos's guilt beyond reasonable doubt;
they voted to acquit.
In 48 States and federal court, a single juror's vote to ac-
quit is enough to prevent a conviction. But not in Louisiana.
Along with Oregon, Louisiana has long punished people
based on 10-to-2 verdicts like the one here. So instead of
the mistrial he would have received almost anywhere else,
Mr. Ramos was sentenced to life in prison without the possi-
bility of parole.
Why do Louisiana and Oregon allow nonunanimous convic-
tions? Though it's hard to say why these laws persist, their
origins are clear. Louisiana frst endorsed nonunanimous
verdicts for serious crimes at a constitutional convention in
1898. According to one committee chairman, the avowed
purpose of that convention was to “establish the supremacy
of the white race,” and the resulting document included
many of the trappings of the Jim Crow era: a poll tax, a
combined literacy and property ownership test, and a grand-
father clause that in practice exempted white residents from
the most onerous of these requirements.
1
1
Offcial Journal of the Proceedings of the Constitutional Convention of
the State of Louisiana 374 (H. Hearsey ed. 1898); Eaton, The Suffrage
Clause in the New Constitution of Louisiana, 13 Harv. L. Rev. 279, 286–
287 (1899); Louisiana v. United States, 380 U. S. 145, 151–153 (1965).

88 RAMOS
v. LOUISIANA
Opinion of the Court
Nor was it only the prospect of African-Americans voting
that
concerned the delegates. Just a week before the con-
vention, the U. S. Senate passed a resolution calling for an
investigation into whether Louisiana was systemically ex-
cluding African-Americans from juries.
2
Seeking to avoid
unwanted national attention, and aware that this Court
would strike down any policy of overt discrimination against
African-American jurors as a violation of the Fourteenth
Amendment,
3
the delegates sought to undermine African-
American participation on juries in another way. With a
careful eye on racial demographics, the convention delegates
sculpted a “facially race-neutral” rule permitting 10-to-2 ver-
dicts in order “to ensure that African-American juror service
would be meaningless.”
4
Adopted in the 1930s, Oregon's rule permitting nonunani-
mous verdicts can be similarly traced to the rise of the Ku
Klux Klan and efforts to dilute “the infuence of racial, eth-
nic, and religious minorities on Oregon juries.”
5
In fact, no
one before us contests any of this; courts in both Louisiana
and Oregon have frankly acknowledged that race was a moti-
vating factor in the adoption of their States' respective non-
unanimity rules.
6
We took this case to decide whether the Sixth Amendment
right to a jury trial—as incorporated against the States by
way of the Fourteenth Amendment—requires a unanimous
verdict to convict a defendant of a serious offense.
7
Louisi-
ana insists that this Court has never defnitively passed on
2
See 31 Cong. Rec. 1019 (1898).
3
Strauder v. West Virginia, 100 U. S. 303, 310 (1880).
4
State v. Maxie, No. 13–CR–72522 (La. 11th Jud. Dist., Oct. 11, 2018),
App. 56–57; see also Frampton, The Jim Crow Jury, 71 Vand. L. Rev.
1593 (2018).
5
State v. Williams, No. 15–CR–58698 (C. C. Ore., Dec. 15, 2016), App.
104.
6
Maxie, App. 82; Williams, App. 104.
7
Under existing precedent and consistent with a common law tradition
not at issue here, a defendant may be tried for certain “petty offenses”
without a jury. Cheff v. Schnackenberg, 384 U. S. 373, 379 (1966).

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89
Opinion of the Court
the question and urges us to fnd its practice consistent with
the
Sixth Amendment. By contrast, the dissent doesn't try
to defend Louisiana's law on Sixth or Fourteenth Amend-
ment grounds; tacitly, it seems to admit that the Constitution
forbids States from using nonunanimous juries. Yet, un-
prompted by Louisiana, the dissent suggests our precedent
requires us to rule for the State anyway. What explains all
this? To answer the puzzle, it's necessary to say a bit more
about the merits of the question presented, the relevant
precedent, and, at last, the consequences that follow from
saying what we know to be true.
I
The Sixth Amendment promises that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district
sha l l have been prev i ously ascer t ai ned by law. ” The
Amendment goes on to preserve other rights for criminal
defendants but says nothing else about what a “trial by an
impartial jury” entails.
Still, the promise of a jury trial surely meant something—
otherwise, there would have been no reason to write it down.
Nor would it have made any sense to spell out the places
from which jurors should be drawn if their powers as jurors
could be freely abridged by statute. Imagine a constitution
that allowed a “jury trial” to mean nothing but a single per-
son rubberstamping convictions without hearing any evi-
dence—but simultaneously insisting that the lone juror come
from a specifc judicial district “previously ascertained by
law.” And if that's not enough, imagine a constitution that
included the same hollow guarantee twice—not only in the
Sixth Amendment, but also in Article III.
8
No: The text
and structure of the Constitution clearly suggest that the
term “trial by an impartial jury” carried with it some mean-
ing about the content and requirements of a jury trial.
8
See Art. III, § 2.

90 RAMOS
v. LOUISIANA
Opinion of the Court
One of these requirements was unanimity. Wherever we
might
look to determine what the term “trial by an impartial
jury” meant at the time of the Sixth Amendment's adop-
tion—whether it's the common law, state practices in the
founding era, or opinions and treatises written soon after-
ward—the answer is unmistakable. A jury must reach a
unanimous verdict in order to convict.
The requirement of juror unanimity emerged in 14th-
century England and was soon accepted as a vital right pro-
tected by the common law.
9
As Blackstone explained, no
person could be found guilty of a serious crime unless “the
truth of every accusation . . . should . . . be confrmed by the
unanimous suffrage of twelve of his equals and neighbours,
indifferently chosen, and superior to all suspicion.”
10
A
“ `verdict, taken from eleven, was no verdict' ” at all.
11
This same rule applied in the young American States.
Six State Constitutions explicitly required unanimity.
12
An-
other four preserved the right to a jury trial in more general
terms.
13
But the variations did not matter much; consistent
9
See J. Thayer, Evidence at the Common Law 86–90 (1898) (Thayer);
W. Forsyth, History of Trial by Jury 200 (J. Morgan ed., 2d ed. 1875); 1
W. Holdsworth, A History of English Law 318 (rev. 7th ed. 1956); Smith,
The Historical and Constitutional Contexts of Jury Reform, 25 Hofstra L.
Rev. 377, 397 (1996).
10
4 W. Blackstone, Commentaries on the Laws of England 343 (1769).
11
Thayer 88–89, n. 4 (quoting Anonymous Case, 41 Lib. Assisarum 11
(1367)); see also 1 M. Hale, History of the Pleas of the Crown 33 (1736).
12
See Del. Declaration of Rights § 14 (1776), in 1 The Bill of Rights: A
Documentary History 278 (1971); Md. Declaration of Rights § XIX, in
3 Federal and State Constitutions 1688 (F. Thorpe ed. 1909) (Thorpe);
N. C. Declaration of Rights § IX (1776), in 5 id., at 2787; Pa. Declaration
of Rights § IX (1776), in 5 id., at 3083; Vt. Declaration of Rights, ch. I,
§ XI (1786), in 6 id., at 3753; Va. Declaration of Rights § 8 (1776), in 7 id.,
at 3813.
13
See Ga. Const., Art. IV, § 3 (1789), in 2 id., at 789; N. J. Const., Art.
XXII (1776), in 5 id., at 2598; N. Y. Const., Art. XLI (1777), in 5 id., at
2637; S. C. Const., Art. IX, § 6 (1790), in 6 id., at 3264.

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91
Opinion of the Court
with the common law, state courts appeared to regard una-
ni
mity as an essential feature of the jury trial.
14
It was against this backdrop that James Madison drafted
and the States ratifed the Sixth Amendment in 1791. By
that time, unanimous verdicts had been required for about
400 years.
15
If the term “trial by an impartial jury” carried
any meaning at all, it surely included a requirement as long
and widely accepted as unanimity.
Influential, postadoption treatises confirm this under-
standing. For example, in 1824, Nathan Dane reported as
fact that the U. S. Constitution required unanimity in crimi-
nal jury trials for serious offenses.
16
A few years later, Jus-
tice Story explained in his Commentaries on the Constitution
that “in common cases, the law not only presumes every man
innocent, until he is proved guilty; but unanimity in the ver-
dict of the jury is indispensable.”
17
Similar statements can
14
See, e. g., Commonwealth v. Bowden, 9 Mass. 494, 495 (1813); People
v. Denton, 2 Johns. Cas. 275, 277 (N. Y. 1801) (per curiam); Commonwealth
v. Fells, 36 Va. 613, 614–615 (1838); State v. Doon & Dimond, 1 R. Charlton
1, 2 (Ga. Super. Ct. 1811); see also Respublica v. Oswald, 1 Dall. 319, 323
(Pa. 1788) (reporting Chief Justice McKean's observations that unanimity
would have been required even if the Pennsylvania Constitution had not
said so explicitly).
15
To be sure, a few of the Colonies had relaxed (and then restored) the
unanimity requirement well before the founding. For example, during a
two decade period in the late 17th century, the Carolinas experimented
with a non-common law system designed to encourage a feudal social
structure; this “reactionary” constitution permitted conviction by majority
vote. See Carolina Const., Art. 69 (1669), in 5 Thorpe 2781; Reinsch, The
English Common Law in the Early American Colonies, in 1 Select Essays
in Anglo-American Legal History 367, 407 (1907). But, as Louisiana ad-
mits, by the time of the Sixth Amendment's adoption, unanimity had again
become the accepted rule. See Brief for Respondent 17.
16
6 N. Dane, Digest of American Law, ch. LXXXII, Art. 2, § 1, p. 226
(1824).
17
2 J. Story, Commentaries on the Constitution of the United States
§ 777, p. 248 (1833).

92 RAMOS
v. LOUISIANA
Opinion of the Court
be found in American legal treatises throughout the 19th
century
.
18
Nor is this a case where the original public meaning was
lost to time and only recently recovered. This Court has,
repeatedly and over many years, recognized that the Sixth
Amendment requires unanimity. As ear ly as 1898, the
Court said that a defendant enjoys a “constitutional right to
demand that his liberty should not be taken from him except
by the joint action of the court and the unanimous verdict of
a jury of twelve persons.”
19
A few decades later, the Court
elaborated that the Sixth Amendment affords a right to “a
trial by jury as understood and applied at common law, . . .
includ[ing] all the essential elements as they were recognized
in this country and England when the Constitution was
adopted.”
20
And, the Court observed, this includes a re-
quirement “that the verdict should be unanimous.”
21
In all,
this Court has commented on the Sixth Amendment's una-
nimity requirement no fewer than 13 times over more than
120 years.
22
18
See, e. g., J. Pomeroy, An Introduction to Municipal Law § 135, p. 78
(1864); J. Tiffany, Government and Constitutional Law § 549, p. 367 (1867);
T. Cooley, Constitutional Limitations 319–320 (1868); 1 J. Bishop, Criminal
Procedure, ch. LXII § 897 (rev. 2d ed. 1872).
19
Thompson v. Utah, 170 U. S. 343, 351 (1898). See also Maxwell v.
Dow, 176 U. S. 581, 586 (1900).
20
Patton v. United States, 281 U. S. 276, 288 (1930).
21
Ibid. See also Andres v. United States, 333 U. S. 740, 748 (1948)
(“Unanimity in jury verdicts is required where the Sixth and Seventh
Amendments apply”).
22
In addition to Thompson, Maxwell, Patton, and Andres, see Johnson
v. Louisiana, 406 U. S. 356, 369 (1972) (Powell, J., concurring); United
States v. Gaudin, 515 U. S. 506, 510 (1995); Richardson v. United States,
526 U. S. 813, 817 (1999); Apprendi v. New Jersey, 530 U. S. 466, 477 (2000);
Southern Union Co. v. United States, 567 U. S. 343, 356 (2012); Blakely v.
Washington, 542 U. S. 296, 301–302 (2004); United States v. Booker, 543
U. S. 220, 233–239 (2005); Descamps v. United States, 570 U. S. 254, 269
(2013); United States v. Haymond, 588 U. S. 634, 642 (2019) (plurality
opinion).

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Opinion of the Court
There can be no question either that the Sixth Amend-
ment'
s unanimity requirement applies to state and federal
criminal trials equally. This Court has long explained that
the Sixth Amendment right to a jury trial is “fundamental
to the American scheme of justice” and incorporated against
the States under the Fourteenth Amendment.
23
This Court
has long explained, too, that incorporated provisions of the
Bill of Rights bear the same content when asserted against
States as they do when asserted against the federal govern-
ment.
24
So if the Sixth Amendment's right to a jury trial
requires a unanimous verdict to support a conviction in fed-
eral court, it requires no less in state court.
II
A
How, despite these seemingly straightforward principles,
have Louisiana's and Oregon's laws managed to hang on for
so long? It turns out that the Sixth Amendment's otherwise
simple story took a strange turn in 1972. That year, the
Court confronted these States' unconventional schemes for
the frst time—in Apodaca v. Oregon
25
and a companion case,
Johnson v. Louisiana.
26
Ultimately, the Court could do no
more than issue a badly fractured set of opinions. Four dis-
senting Justices would not have hesitated to strike down the
States' laws, recognizing that the Sixth Amendment requires
unanimity and that this guarantee is fully applicable against
the States under the Fourteenth Amendment.
27
But a four-
23
Duncan v. Louisiana, 391 U. S. 145, 148–150 (1968).
24
Malloy v. Hogan, 378 U. S. 1, 10–11 (1964).
25
406 U. S. 404 (plurality opinion).
26
406 U. S. 356.
27
See Apodaca, 406 U. S., at 414–415 (Stewart, J., joined by Brennan
and Marshall, JJ., dissenting) (“Until today, it has been universally under-
stood that a unanimous verdict is an essential element of a Sixth Amend-
ment jury trial. . . . I would follow these settled Sixth Amendment prece-
dents”); Johnson, 406 U. S., at 382–383, 391–393 (Douglas, J., joined by
Brennan and Marshall, JJ., dissenting).

94 RAMOS
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Justice plurality took a very different view of the Sixth
Amendment.
These Justices declared that the real question
before them was whether unanimity serves an important
“function” in “contemporary society.”
28
Then, having re-
framed the question, the plurality wasted few words before
concluding that unanimity's costs outweigh its benefts in the
modern era, so the Sixth Amendment should not stand in the
way of Louisiana or Oregon.
The ninth Member of the Court adopted a position that
was neither here nor there. On the one hand, Justice Powell
agreed that, as a matter of “history and precedent, . . . the
Sixth Amendment requires a unanimous jury verdict to con-
vict.”
29
But, on the other hand, he argued that the Four-
teenth Amendment does not render this guarantee against
the federal government fully applicable against the States.
In this way, Justice Powell doubled down on his belief in
“dual-track” incorporation—the idea that a single right can
mean two different things depending on whether it is being
invoked against the federal or a state government.
Justice Powell acknowledged that his argument for dual-
track incorporation came “late in the day.”
30
Late it was.
The Court had already, nearly a decade earlier, “rejected the
notion that the Fourteenth Amendment applies to the States
only a `watered-down, subjective version of the individual
guarantees of the Bill of Rights.' ”
31
It's a point we've
restated many times since, too, including as recently as
last year.
32
Still, Justice Powell frankly explained, he
was “unwillin[g]” to follow the Court's precedents.
33
So he
28
Apodaca, 406 U. S., at 410.
29
Johnson, 406 U. S., at 371 (concurring opinion).
30
Id., at 375.
31
Id., at 384 (Douglas, J., dissenting) (quoting Malloy, 378 U. S., at 10–
11); Johnson, 406 U. S., at 395–396 (Brennan, J., dissenting) (collecting
cases).
32
See, e. g., Timbs v. Indiana, 586 U. S. 146, 150 (2019) (unanimously
rejecting arguments for dual-track incorporation).
33
Johnson, 406 U. S., at 375–376, and n. 15 (concurring opinion).

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offered up the essential ffth vote to uphold Mr. Apodaca's
con
viction—if based only on a view of the Fourteenth
Amendment that he knew was (and remains) foreclosed by
precedent.
B
In the years following Apodaca, both Louisiana and Ore-
gon chose to continue allowing nonunanimous verdicts. But
their practices have always stood on shaky ground. After
all, while Justice Powell's vote secured a favorable judgment
for the States in Apodaca, it's never been clear what ration-
ale could support a similar result in future cases. Only two
possibilities exist: Either the Sixth Amendment allows non-
unanimous verdicts, or the Sixth Amendment's guarantee of
a jury trial applies with less force to the States under the
Fourteenth Amendment. Yet, as we've seen, both bear
their problems. In Apodaca itself, a majority of Justices—
including Justice Powell—recognized that the Sixth Amend-
ment demands unanimity, just as our cases have long said.
And this Court's precedents, both then and now, prevent the
Court from applying the Sixth Amendment to the States in
some mutated and diminished form under the Fourteenth
Amendment. So what could we possibly describe as the
“holding ” of Apodaca?
Really, no one has found a way to make sense of it. In
later cases, this Court has labeled Apodaca an “exception,”
“unusual,” and in any event “not an endorsement” of Justice
Powell's view of incorporation.
34
At the same time, we have
continued to recognize the historical need for unanimity.
35
We've been studiously ambiguous, even inconsistent, about
34
McDonald v. Chicago, 561 U. S. 742, 766, n. 14 (2010); see also Timbs,
586 U. S., at 150, n. 1 (quoting McDonald, 561 U. S., at 766, n. 14).
35
Gaudin, 515 U. S., at 510; Richardson, 526 U. S., at 817; Apprendi, 530
U. S., at 477; Southern Union Co., 567 U. S., at 356; Blakely, 542 U. S., at
301–302; Booker, 543 U. S., at 238; Descamps, 570 U. S., at 269; Haymond,
588 U. S., at 642 (plurality opinion).

96 RAMOS
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what Apodaca might mean.
36
T
o its credit, Louisiana ac-
knowledges the problem. The State expressly tells us it is
not “asking the Court to accord Justice Powell's solo opinion
in Apodaca precedential force.”
37
Instead, in an effort to
win today's case, Louisiana embraces the idea that every-
thing is up for grabs. It contends that this Court has never
defnitively ruled on the propriety of nonunanimous juries
under the Sixth Amendment—and that we should use this
case to hold for the frst time that nonunanimous juries are
permissible in state and federal courts alike.
III
Louisiana's approach may not be quite as tough as trying
to defend Justice Powell's dual-track theory of incorporation,
but it's pretty close. How does the State deal with the fact
this Court has said 13 times over 120 years that the Sixth
Amendment does require unanimity? Or the fact that fve
Justices in Apodaca said the same? The best the State can
offer is to suggest that all these statements came in dicta.
38
36
See, e. g., Burch v. Louisiana, 441 U. S. 130, 136, and n. 9 (1979) (de-
scribing both plurality opinion and Justice Powell's separate writing);
Brown v. Louisiana, 447 U. S. 323, 331 (1980) (plurality opinion) (describ-
ing neither); see also McKoy v. North Carolina, 494 U. S. 433, 468 (1990)
(Scalia, J., dissenting) (same). On a few occasions we've suggested that
perhaps Apodaca means the Sixth Amendment does not require unanimity
at all. See Ludwig v. Massachusetts, 427 U. S. 618, 625 (1976) (quoting
Apodaca plurality); Gaudin, 515 U. S., at 510–511, n. 2 (same); see also Hol-
land v. Illinois, 493 U. S. 474, 511 (1990) (Stevens, J., dissenting) (same).
But on another occasion, we suggested that it could make a difference
whether a particular right was rooted in the Sixth Amendment's jury trial
guarantee or Fourteenth Amendment due process guarantee. See Schad
v. Arizona, 501 U. S. 624, 634, n. 5 (1991) (plurality opinion). The dissent
contends that these cases have “reiterated time and again what Apodaca
had established.” Post, at 145 (opinion of Alito, J.). More accurately,
these “reiterations” have suggested different things at different times.
37
See Brief for Respondent 47; Tr. of Oral Arg. 37–38.
38
In at least some of these cases, that may be a fair characterization.
For example, while Thompson was quick to say that the U. S. Constitution
requires “the unanimous verdict of a jury of twelve persons,” the question

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Opinion of the Court
But even supposing (without granting) that Louisiana is
r
ight and it's dicta all the way down, why would the Court
now walk away from many of its own statements about the
Constitution's meaning? And what about the prior 400
years of English and American cases requiring unanimity—
should we dismiss all those as dicta too?
Sensibly, Louisiana doesn't dispute that the common law
required unanimity. Instead, it argues that the drafting his-
tory of the Sixth Amendment reveals an intent by the fram-
ers to leave this particular feature behind. The State points
to the fact that Madison's proposal for the Sixth Amendment
originally read: “The trial of all crimes . . . shall be by an
impartial jury of freeholders of the vicinage, with the requi-
site of unanimity for conviction, of the right of challenge, and
other accustomed requisites. . . .”
39
Louisiana notes that
the House of Representatives approved this text with minor
modifcations. Yet, the State stresses, the Senate replaced
“impartial jury of freeholders of the vicinage” with “impar-
tial jury of the State and district wherein the crime shall
have been committed” and also removed the explicit refer-
ences to unanimity, the right of challenge, and “other accus-
tomed requisites.” In light of these revisions, Louisiana
would have us infer an intent to abandon the common law's
traditional unanimity requirement.
But this snippet of drafting history could just as easily
support the opposite inference. Maybe the Senate deleted
the language about unanimity, the right of challenge, and
“other accustomed requisites” because all this was so
plainly included in the promise of a “trial by an impartial
jury” that Senators considered the language surplusage.
before the Court was whether, in the circumstances of the defendant's
case, a trial by eight jurors in a Utah state court would violate the Ex
Post Facto Clause. 170 U. S., at 351. The Sixth Amendment's unanimity
requirement was unnecessary to the outcome, and the Utah Constitution
required unanimity either way. Id., at 345.
39
1 Annals of Cong. 435 (1789).

98 RAMOS
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The truth is that we have little contemporaneous evidence
sheddi
ng light on why the Senate acted as it did.
40
So
rather than dwelling on text left on the cutting room foor,
we are much better served by interpreting the language
Congress retained and the States ratifed. And, as we've
seen, at the time of the Amendment's adoption, the right
to a jury trial meant a trial in which the jury renders a
unanimous verdict.
Further undermining Louisiana's inference about the
drafting history is the fact it proves too much. If the Sen-
ate's deletion of the word “unanimity” changed the meaning
of the text that remains, then the same would seemingly
have to follow for the other deleted words as well. So it's
not just unanimity that died in the Senate, but all the “other
accustomed requisites” associated with the common law jury
trial right—i. e., everything history might have taught us
about what it means to have a jury trial. Taking the State's
argument from drafting history to its logical conclusion
would thus leave the right to a “trial by jury” devoid of
meaning. A right mentioned twice in the Constitution
would be reduced to an empty promise. That can't be right.
Faced with this hard fact, Louisiana's only remaining
option is to invite us to distinguish between the historic
features of common law jury trials that (we think) serve “im-
portant enough” functions to migrate silently into the Sixth
Amendment and those that don't. And, on the State's
account, we should conclude that unanimity isn't worthy
enough to make the trip.
But to see the dangers of Louisiana's overwise approach,
there's no need to look any further than Apodaca itself.
There, four Justices, pursuing the functionalist approach
40
In private writings, Madison did explain some of the Senate's objec-
tions with his original phrasing of the vicinage requirement. See 5 Writ-
ings of James Madison 420–424 (G. Hunt ed. 1904) (letters to E. Pendleton,
Sept. 14 and 23, 1789). But this is little help in explaining the other
changes made in the Senate.

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Louisiana espouses, began by describing the “ `essential' ”
beneft
of a jury trial as “ `the interposition . . . of the com-
monsense judgment of a group of laymen' ” between the de-
fendant and the possibility of an “ `overzealous prosecu-
tor.' ”
41
And measured against that muddy yardstick, they
quickly concluded that requiring 12 rather than 10 votes to
convict offers no meaningful improvement.
42
Meanwhile,
these Justices argued, States have good and important rea-
sons for dispensing with unanimity, such as seeking to reduce
the rate of hung juries.
43
Who can profess confdence in a breezy cost-beneft analy-
sis like that? Lost in the accounting are the racially dis-
criminatory reasons that Louisiana and Oregon adopted
their peculiar rules in the frst place.
44
What's more, the
plurality never explained why the promised beneft of aban-
doning unanimity—reducing the rate of hung juries—always
scores as a credit, not a cost. But who can say whether any
particular hung jury is a waste, rather than an example of
a jury doing exactly what the plurality said it should—
deliberating carefully and safeguarding against overzealous
41
406 U. S., at 410 (plurality opinion) (quoting Williams v. Florida, 399
U. S. 78, 100 (1970), and Duncan, 391 U. S., at 156).
42
406 U. S., at 410–411.
43
Id., at 411.
44
The dissent chides us for acknowledging the racist history of Louisi-
ana's and Oregon's laws, and commends the Apodaca plurality's decision
to disregard these facts. Post, at 141–144, 153. But if the Sixth Amend-
ment calls on judges to assess the functional benefts of jury rules, as the
Apodaca plurality suggested, how can that analysis proceed to ignore the
very functions those rules were adopted to serve? The dissent answers
that Louisiana and Oregon eventually recodifed their nonunanimous jury
laws in new proceedings untainted by racism. See post, at 142–143, n. 3.
But that cannot explain Apodaca's omission: The States' proceedings took
place only after the Court's decision. Nor can our shared respect for “ra-
tional and civil discourse,” post, at 144, supply an excuse for leaving an
uncomfortable past unexamined. Still, the dissent is right about one
thing—a jurisdiction adopting a nonunanimous jury rule even for benign
reasons would still violate the Sixth Amendment.

100 RAMOS
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prosecutions? And what about the fact, too, that some stud-
ies
suggest that the elimination of unanimity has only a small
effect on the rate of hung juries?
45
Or the fact that others
profess to have found that requiring unanimity may provide
other possible benefts, including more open-minded and
more thorough deliberations?
46
It seems the Apodaca plu-
rality never even conceived of such possibilities.
Our real objection here isn't that the Apodaca plurality's
cost-beneft analysis was too skimpy. The deeper problem
is that the plurality subjected the ancient guarantee of a
unanimous jury verdict to its own functionalist assessment
in the frst place. And Louisiana asks us to repeat the error
today, just replacing Apodaca's functionalist assessment with
our own updated version. All this overlooks the fact that,
at the time of the Sixth Amendment's adoption, the right to
trial by jury included a right to a unanimous verdict. When
the American people chose to enshrine that right in the Con-
stitution, they weren't suggesting fruitful topics for future
cost-beneft analyses. They were seeking to ensure that
their children's children would enjoy the same hard-won lib-
erty they enjoyed. As judges, it is not our role to reassess
whether the right to a unanimous jury is “important enough”
to retain. With humility, we must accept that this right may
serve purposes evading our current notice. We are en-
trusted to preserve and protect that liberty, not balance it
away aided by no more than social statistics.
47
45
See H. Kalven & H. Zeisel, The American Jury 461 (1966); Diamond,
Rose, & Murphy, Revisiting the Unanimity Requirement: The Behavior of
the Non-unanimous Civil Jury, 100 Nw. U. L. Rev. 201, 207–208 (2006).
46
Devine et al., Jury Decision Making: 45 Years of Empirical Research
on Deliberating Groups, 7 Psych. Pub. Pol'y & L. 622, 669 (2001); R. Hastie,
S. Penrod, & N. Pennington, Inside the Jury 115, 164–165 (1983); Hans,
The Power of Twelve: The Impact of Jury Size and Unanimity on Civil
Jury Decision Making, 4 Del. L. Rev. 1, 24–25 (2001).
47
The dissent seems to suggest that we must abandon the Sixth Amend-
ment's historical meaning in favor of Apodaca's functionalism because a
parade of horribles would follow otherwise. In particular, the dissent re-

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IV
A
If
Louisiana's path to an affrmance is a diffcult one, the
dissent's is trickier still. The dissent doesn't dispute that
the Sixth Amendment protects the right to a unanimous jury
verdict, or that the Fourteenth Amendment extends this
right to state-court trials. But, it insists, we must affrm
Mr. Ramos's conviction anyway. Why? Because the doc-
trine of stare decisis supposedly commands it. There are
two independent reasons why that answer falls short.
In the frst place and as we've seen, not even Louisiana
tries to suggest that Apodaca supplies a governing prece-
dent. Remember, Justice Powell agreed that the Sixth
Amendment requires a unanimous verdict to convict, so he
would have no objection to that aspect of our holding today.
minds us that, at points and places in our history, women were not permit-
ted to sit on juries. See post, at 153–154. But we hardly need Apodaca's
functionalism to avoid repeating that wrong. Unlike the rule of unanim-
ity, rules about who qualifed as a defendant's “peer” varied considerably
at common law at the time of the Sixth Amendment's adoption. Refect-
ing that fact, the Judiciary Act of 1789—adopted by the same Congress
that passed the Sixth Amendment—initially pegged the qualifcations for
federal jury service to the relevant state jury qualifcation requirements.
1 Stat. 88. As a result, for much of this Nation's early history the compo-
sition of federal juries varied both geographically and over time. See
Hickey, Federal Legislation: Improvement of the Jury System in Federal
Courts, 35 Geo. L. J. 500, 506–507 (1947); Taylor v. Louisiana, 419 U. S.
522, 536 (1975). Ultimately, however, the people themselves adopted fur-
ther constitutional amendments that prohibit invidious discrimination.
So today the Sixth Amendment's promise of a jury of one's peers means a
jury selected from a representative cross-section of the entire community.
See Strauder, 100 U. S., at 307–308; Smith v. Texas, 311 U. S. 128, 130
(1940); Taylor, 419 U. S., at 527.
Relatedly, the dissent suggests that, before doing anything here, we
should survey all changes in jury practices since 1791. See post, at 154–
155, n. 26. It sounds like an interesting study—but not one that could
alter the plain meaning of the Constitution or obliviate its undisputed una-
nimity requirement.

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Justice Powell reached a different result only by relying on
a
dual-track theory of incorporation that a majority of the
Court had already rejected (and continues to reject). And
to accept that reasoning as precedential, we would have to
embrace a new and dubious proposition: that a single Justice
writing only for himself has the authority to bind this Court
to propositions it has already rejected.
This is not the rule, and for good reason—it would do more
to destabilize than honor precedent. To see how, consider a
hypothetical. Suppose we face a question of frst impression
under the Fourth Amendment: whether a State must obtain
a warrant before reading a citizen's email in the hands of an
Internet provider and using that email as evidence in a crim-
inal trial. Imagine this question splits the Court, with four
Justices fnding the Fourth Amendment requires a warrant
and four Justices fnding no such requirement. The ninth
Justice agrees that the Fourth Amendment requires a war-
rant, but takes an idiosyncratic view of the consequences of
violating that right. In her view, the exclusionary rule has
gone too far, and should only apply when the defendant is
prosecuted for a felony. Because the case before her hap-
pens to involve only a misdemeanor, she provides the ninth
vote to affrm a conviction based on evidence secured by a
warrantless search. Of course, this Court has longstanding
precedent requiring the suppression of all evidence obtained
in unconstitutional searches and seizures. Mapp v. Ohio,
367 U. S. 643 (1961). But like Justice Powell, our hypotheti-
cal ninth Justice sticks to her view and expressly rejects this
Court's precedent. Like Justice Powell, this Justice's vote
would be essential to the judgment. So if, as the dissent
suggests, that is enough to displace precedent, would Mapp's
exclusionary rule now be limited to felony prosecutions?
Admittedly, this example comes from our imagination. It
has to, because no case has before suggested that a single
Justice may overrule precedent. But if the Court were to
embrace the dissent's view of stare decisis, it would not stay

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imaginary for long. Every occasion on which the Court is
e
venly split would present an opportunity for single Justices
to overturn precedent to bind future majorities. Rather
than advancing the goals of predictability and reliance lying
behind the doctrine of stare decisis, such an approach would
impair them.
The dissent contends that, in saying this much, we risk
defying Marks v. United States.
48
According to Marks,
when “a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of fve
Justices, `the holding of the Court may be viewed as that
position taken by those Members who concurred in the judg-
ments on the narrowest grounds.' ”
49
But notice that the
dissent never actually gets around to telling us which opinion
in Apodaca it considers to be the narrowest and controlling
one under Marks—or why. So while the dissent worries
that we defy a Marks precedent, it is oddly coy about where
exactly that precedent might be found.
The parties recognize what the dissent does not: Marks
has nothing to do with this case. Unlike a Marks dispute
where the litigants duel over which opinion represents the
narrowest and controlling one, the parties before us accept
that Apodaca yielded no controlling opinion at all. In par-
ticular, both sides admit that Justice Powell's opinion cannot
bind us—precisely because he relied on a dual-track rule of
incorporation that an unbroken line of majority opinions be-
fore and after Apodaca has rejected. Still, the dissent
presses the issue, suggesting that a single Justice's opinion
can overrule prior precedents under “the logic” of Marks.
50
But, as the dissent itself implicitly acknowledges, Marks
never sought to offer or defend such a rule. And, as we
have seen, too, a rule like that would do more to harm than
advance stare decisis.
48
430 U. S. 188 (1977).
49
Id., at 193.
50
Post, at 149.

104 RAMOS
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The dissent's backup argument fares no better. In the
end,
even the dissent is forced to concede that Justice Pow-
ell's reasoning in Apodaca lacks controlling force.
51
So far,
so good. But then the dissent suggests Apodaca somehow
still manages to supply a controlling precedent as to its re-
sult.
52
Look closely, though. The dissent's account of Apo-
daca's result looks suspiciously like the reasoning of Justice
Powell's opinion: “In Apodaca, this means that when (1) a
defendant is convicted in state court, (2) at least 10 of the 12
jurors vote to convict, and (3) the defendant argues that the
conviction violates the Constitution because the vote was not
unanimous, the challenge fails.”
53
Where does the conven-
ient “state court” qualifcation come from? Neither the
Apodaca plurality nor the dissent included any limitation
like that—their opinions turned on the meaning of the Sixth
Amendment. What the dissent characterizes as Apodaca's
result turns out to be nothing more than Justice Powell's
reasoning about dual-track incorporation dressed up to look
like a logical proof.
All of this does no more than highlight an old truth. It is
usually a judicial decision's reasoning—its ratio decidendi—
that allows it to have life and effect in the disposition of
future cases.
54
As this Court has repeatedly explained in the
51
Post, at 150.
52
Post, at 147.
53
Ibid. See also post, at 125, n. 6 (Kavanaugh, J., concurring in part)
(offering the same argument by contending that “[t]he result of Apodaca”
means “state criminal juries need not be unanimous”).
54
See J. Salmond, Jurisprudence § 62, p. 191 (G. Williams ed., 10th ed.
1947) (“The concrete decision is binding between the parties to it, but it
is the abstract ratio decidendi which alone has the force of law as regards
the world at large”); F. Schauer, Precedent, in Routledge Companion to
Philosophy of Law 129 (A. Marmor ed. 2012) (“[T]he traditional answer to
the question of what is a precedent is that subsequent cases falling within
the ratio decidendi—or rationale—of the precedent case are controlled
by that case”); N. Duxbury, The Nature and Authority of Precedent 65–
66 (2008).

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context of summary affrmances, “ `unexplicated' ” decisions
may
“ `settl[e] the issues for the parties, [but they are] not to
be read as a renunciation by this Court of doctrines pre-
viously announced in our opinions.' ”
55
Much the same may
be said here. Apodaca's judgment line resolved that case
for the parties in that case. It is binding in that sense. But
stripped from any reasoning, its judgment alone cannot be
read to repudiate this Court's repeated pre-existing teach-
ings on the Sixth and Fourteenth Amendments.
56
B
1
There's another obstacle the dissent must overcome.
Even if we accepted the premise that Apodaca established a
precedent, no one on the Court today is prepared to say it
was rightly decided, and stare decisis isn't supposed to be
the art of methodically ignoring what everyone knows to be
true.
57
Of course, the precedents of this Court warrant our
deep respect as embodying the considered views of those
who have come before. But stare decisis has never been
treated as “an inexorable command.”
58
And the doctrine is
“at its weakest when we interpret the Constitution”
59
be-
55
Mandel v. Bradley, 432 U. S. 173, 176 (1977) (per curiam) (quoting
Fusari v. Steinberg, 419 U. S. 379, 392 (1975) (Burger, C. J., concurring);
see also Bush v. Vera, 517 U. S. 952, 1001–1002 (1996) (Thomas, J., concur-
ring in judgment).
56
The dissent foats a different theory when it suggests this Court's
denials of certiorari in cases seeking to clarify Apodaca is evidence of
Apodaca's precedential force. Post, at 145–146. But “[t]he signifcance
of a denial of a petition for certiorari ought no longer . . . require discus-
sion. This Court has said again and again and again that such a denial
has no legal signifcance whatever bearing on the merits of the claim.”
Darr v. Burford, 339 U. S. 200, 226 (1950) (Frankfurter, J., dissenting).
57
R. Cross & J. Harris, Precedent in English Law 1 (4th ed. 1991) (attrib-
uting this aphorism to Jeremy Bentham).
58
Pearson v. Callahan, 555 U. S. 223, 233 (2009) (internal quotation
marks omitted).
59
Agostini v. Felton, 521 U. S. 203, 235 (1997).

106 RAMOS
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cause a mistaken judicial interpretation of that supreme law
is
often “practically impossible” to correct through other
means.
60
To balance these considerations, when it revisits a
precedent this Court has traditionally considered “the qual-
ity of the decision's reasoning; its consistency with related
decisions; legal developments since the decision; and reliance
on the decision.”
61
In this case, each factor points in the
same direction.
Start with the quality of the reasoning. Whether we look
to the plurality opinion or Justice Powell's separate concur-
rence, Apodaca was gravely mistaken; again, no Member of
the Court today defends either as rightly decided. Without
repeating what we've already explained in detail, it's just
an implacable fact that the plurality spent almost no time
grappling with the historical meaning of the Sixth Amend-
ment's jury trial right, this Court's long-repeated statements
that it demands unanimity, or the racist origins of Louisiana's
and Oregon's laws. Instead, the plurality subjected the
Constitution's jury trial right to an incomplete functionalist
analysis of its own creation for which it spared one para-
graph. And, of course, fve Justices expressly rejected the
plurality's conclusion that the Sixth Amendment does not re-
quire unanimity. Meanwhile, Justice Powell refused to fol-
low this Court's incorporation precedents. Nine Justices
(including Justice Powell) recognized this for what it was;
eight called it an error.
Looking to Apodaca's consistency with related decisions
and recent legal developments compounds the reasons for
concern. Apodaca sits uneasily with 120 years of preceding
case law. Given how unmoored it was from the start, it
might seem unlikely that later developments could have done
more to undermine the decision. Yet they have. While
60
Payne v. Tennessee, 501 U. S. 808, 828 (1991) (internal quotation
marks omitted).
61
Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. 230, 248 (2019).

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Opinion of the Court
Justice Powell's dual-track theory of incorporation was al-
ready
foreclosed in 1972, some at that time still argued that
it might have a role to play outside the realm of criminal
procedure. Since then, the Court has held otherwise.
62
Until recently, dual-track incorporation attracted at least a
measure of support in dissent. But this Court has now
roundly rejected it.
63
Nor has the plurality's rejection of
the Sixth Amendment's historical unanimity requirement
aged more gracefully. As we've seen, in the years since
Apodaca, this Court has spoken inconsistently about its
meaning—but nonetheless referred to the traditional una-
nimity requirement on at least eight occasions.
64
In light
of all this, calling Apodaca an outlier would be perhaps too
suggestive of the possibility of company.
When it comes to reliance interests, it's notable that nei-
ther Louisiana nor Oregon claims anything like the prospec-
tive economic, regulatory, or social disruption litigants seek-
ing to preserve precedent usually invoke. No one, it seems,
has signed a contract, entered a marriage, purchased a home,
or opened a business based on the expectation that, should a
crime occur, at least the accused may be sent away by a 10-
to-2 verdict.
65
Nor does anyone suggest that nonunanimous
verdicts have “become part of our national culture.”
66
It
would be quite surprising if they had, given that nonunani-
62
McDonald, 561 U. S., at 765–766.
63
Timbs, 586 U. S., at 150. Contrary to the dissent's suggestion, this
Court's longstanding rejection of dual-track incorporation does not neces-
sarily imply that the Fourteenth Amendment renders the entire Bill of
Rights applicable to the States. See post, at 156–157. The scope of an
incorporated right and whether a right is incorporated at all are two dif-
ferent questions. See Timbs, 586 U. S., at 150 (“[I]f a Bill of Rights pro-
tection is incorporated, there is no daylight between the federal and state
conduct it prohibits or requires”).
64
See n. 35, supra.
65
Cf. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S.
877, 925–926 (2007) (Breyer, J., dissenting).
66
Dickerson v. United States, 530 U. S. 428, 443 (2000).

108 RAMOS
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Opinion of the Court
mous verdicts are insuffcient to convict in 48 States and fed-
era
l court.
Instead, the only reliance interests that might be asserted
here fall into two categories. The frst concerns the fact
Louisiana and Oregon may need to retry defendants con-
victed of felonies by nonunanimous verdicts whose cases are
still pending on direct appeal. The dissent claims that this
fact supplies the winning argument for retaining Apodaca
because it has generated “enormous reliance interests” and
overturning the case would provoke a “crushing ” “tsunami”
of follow-on litigation.
67
The overstatement may be forgiven as intended for dra-
matic effect, but prior convictions in only two States are po-
tentially affected by our judgment. Those States credibly
claim that the number of nonunanimous felony convictions
still on direct appeal are somewhere in the hundreds,
68
and
retrying or plea bargaining these cases will surely impose a
cost. But new rules of criminal procedures usually do, often
affecting signifcant numbers of pending cases across the
whole country. For example, after United States v. Booker
held that the Federal Sentencing Guidelines must be advi-
sory rather than mandatory, this Court vacated and re-
manded nearly 800 decisions to the courts of appeals. Similar
consequences likely followed when Crawford v. Washing-
ton overturned prior interpretations of the Confrontation
Clause
69
or Arizona v. Gant changed the law for searches
incident to arrests.
70
Our decision here promises to cause
less, and certainly nothing before us supports the dissent's
67
Post, at 140, 158.
68
Brief for State of Oregon as Amicus Curiae 13 (“In 2018 alone . . .
there were 673 felony jury trials in Oregon, and studies suggest that as
many as two-thirds of those cases would have had a non-unanimous ver-
dict”). At most, Oregon says the number of cases remaining on direct
appeal and affected by today's decision “easily may eclipse a thousand.”
Id., at 12.
69
541 U. S. 36, 60–63 (2004).
70
556 U. S. 332, 345–347 (2009).

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Opinion of Gorsuch, J.
surmise that it will cause wildly more, disruption than these
other
decisions.
2
The second and related reliance interest the dissent seizes
upon involves the interest Louisiana and Oregon have in the
security of their fnal criminal judgments. In light of our
decision today, the dissent worries that defendants whose
appeals are already complete might seek to challenge their
nonunanimous convictions through collateral (i. e., habeas)
review.
But again the worries outstrip the facts. Under Teague
v. Lane, newly recognized rules of criminal procedure do not
normally apply in collateral review.
71
True, Teague left
open the possibility of an exception for “watershed rules”
“implicat[ing] the fundamental fairness [and accuracy] of the
trial.”
72
But, as this language suggests, Teague's test is a
demanding one, so much so that this Court has yet to an-
nounce a new rule of criminal procedure capable of meeting
it.
73
And the test is demanding by design, expressly cali-
brated to address the reliance interests States have in the
fnality of their criminal judgments.
74
Nor is the Teague question even before us. Whether the
right to jury unanimity applies to cases on collateral review
is a question for a future case where the parties will have a
chance to brief the issue and we will beneft from their ad-
versarial presentation. That litigation is sure to come, and
will rightly take into account the States' interest in the f-
nality of their criminal convictions. In this way, Teague
frees us to say what we know to be true about the rights
of the accused under our Constitution today, while leaving
questions about the reliance interest States possess in their
fnal judgments for later proceedings crafted to account for
71
489 U. S. 288, 311–312 (1989) (plurality opinion).
72
Ibid.
73
See Whorton v. Bockting, 549 U. S. 406, 417–418 (2007).
74
See Stringer v. Black, 503 U. S. 222, 227–228 (1992).

110 RAMOS
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Opinion of Gorsuch, J.
them. It would hardly make sense to ignore that two-step
process
and count the State's reliance interests in fnal judg-
ments both here and again there. Certainly the dissent
cites no authority for such double counting.
Instead, the dissent suggests that the feeble reliance inter-
ests it identifes should get a boost because the right to a
unanimous jury trial has “little practical importance going
forward.”
75
In the dissent's telling, Louisiana has “abol-
ished” nonunanimous verdicts and Oregon “seemed on the
verge of doing the same until the Court intervened.”
76
But,
as the dissent itself concedes, a ruling for Louisiana would
invite other States to relax their own unanimity require-
ments.
77
In fact, 14 jurisdictions have already told us that
they would value the right to “experiment” with nonunani-
mous juries.
78
Besides, Louisiana's law bears only prospec-
tive effect, so the State continues to allow nonunanimous
verdicts for crimes committed before 2019.
79
And while the
dissent speculates that our grant of certiorari contributed to
the failure of legal reform efforts in Oregon, its citation does
not support its surmise. No doubt, too, those who risk being
subjected to nonunanimous juries in Louisiana and Oregon
today, and elsewhere tomorrow, would dispute the dissent's
suggestion that their Sixth Amendment rights are of “little
practical importance.”
That point suggests another. In its valiant search for reli-
ance interests, the dissent somehow misses maybe the most
important one: the reliance interests of the American people.
Taken at its word, the dissent would have us discard a Sixth
Amendment right in perpetuity rather than ask two States
to retry a slice of their prior criminal cases. Whether that
slice turns out to be large or small, it cannot outweigh the
75
Post, at 141.
76
Ibid.
77
Post, at 142.
78
Brief for State of Utah et al. as Amici Curiae 1.
79
See 2018 La. Reg. Sess., Act 722.

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Sotomayor, J., concurring in part
interest we all share in the preservation of our constitution-
a
lly promised liberties. Indeed, the dissent can cite no case
in which the one-time need to retry defendants has ever been
suffcient to inter a constitutional right forever.
In the fnal accounting, the dissent's stare decisis argu-
ments round to zero. We have an admittedly mistaken deci-
sion, on a constitutional issue, an outlier on the day it was
decided, one that's become lonelier with time. In arguing
otherwise, the dissent must elide the reliance the American
people place in their constitutionally protected liberties,
overplay the competing interests of two States, count some
of those interests twice, and make no small amount of new
precedent all its own.
V
On what ground would anyone have us leave Mr. Ramos
in prison for the rest of his life? Not a single Member of
this Court is prepared to say Louisiana secured his convic-
tion constitutionally under the Sixth Amendment. No one
before us suggests that the error was harmless. Louisiana
does not claim precedent commands an affrmance. In the
end, the best anyone can seem to muster against Mr. Ramos
is that, if we dared to admit in his case what we all know to
be true about the Sixth Amendment, we might have to say
the same in some others. But where is the justice in that?
Every judge must learn to live with the fact he or she will
make some mistakes; it comes with the territory. But it is
something else entirely to perpetuate something we all know
to be wrong only because we fear the consequences of being
right. The judgment of the Court of Appeals is
Reversed.
Justice Sotomayor, concurring as to all but Part IV–A.
I agree with most of the Court's rationale, and so I join all
but Part IV–A of its opinion. I write separately, however,
to underscore three points. First, overruling precedent

112 RAMOS
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Sotomayor, J., concurring in part
here is not only warranted, but compelled. Second, the in-
terests
at stake point far more clearly to that outcome than
those in other recent cases. And fnally, the racially biased
origins of the Louisiana and Oregon laws uniquely matter
here.
I
Both the majority and the dissent rightly emphasize that
stare decisis “has been a fundamental part of our jurispru-
dence since the founding.” Post, at 150 (opinion of Alito,
J.); see ante, at 105. Indeed, “[w]e generally adhere to our
prior decisions, even if we question their soundness, because
doing so `promotes the evenhanded, predictable, and consist-
ent development of legal principles, fosters reliance on judi-
cial decisions, and contributes to the actual and perceived
integrity of the judicial process.' ” Alleyne v. United States,
570 U. S. 99, 118 (2013) (Sotomayor, J., concurring) (quoting
Payne v. Tennessee, 501 U. S. 808, 827 (1991)).
But put simply, this is not a case where we cast aside prec-
edent “simply because a majority of this Court now dis-
agrees with” it. Alleyne, 570 U. S., at 133 (Alito, J., dis-
senting). Rather, Apodaca v. Oregon, 406 U. S. 404 (1972),
was on shaky ground from the start. That was not because
of the functionalist analysis of that Court's plurality: Reason-
able minds have disagreed over time—and continue to dis-
agree—about the best mode of constitutional interpretation.
That the plurality in Apodaca used different interpretive
tools from the majority here is not a reason on its own to
discard precedent.
What matters instead is that, as the majority rightly
stresses, Apodaca is a universe of one—an opinion uniquely
irreconcilable with not just one, but two, strands of constitu-
tional precedent well established both before and after the
decision. The Court has long recognized that the Sixth
Amendment requires unanimity. Ante, at 96, 106–108. Five
Justices in Apodaca itself disagreed with that plurality's con-
trary view of the Sixth Amendment. Justice Powell's the-

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113
Sotomayor, J., concurring in part
ory of dual-track incorporation also fared no better: He rec-
og
nized that his argument on that score came “late in the
day.” Johnson v. Louisiana, 406 U. S. 356, 375 (1972) (con-
curring opinion).
Moreover, “[t]he force of stare decisis is at its nadir in
cases concerning [criminal] procedur[e] rules that implicate
fundamental constitutional protections.” Alleyne, 570 U. S.,
at 116, n. 5. And the constitutional protection here ranks
among the most essential: the right to put the State to its
burden, in a jury trial that comports with the Sixth Amend-
ment, before facing criminal punishment. See Codispoti v.
Pennsylvania, 418 U. S. 506, 515–516 (1974) (“The Sixth
Amendment represents a deep commitment of the Nation
to the right of jury trial in serious criminal cases as a de-
fense against arbitrary law enforcement” (internal quotation
marks omitted)). Where the State's power to imprison
those like Ramos rests on an erroneous interpretation of the
jury-trial right, the Court should not hesitate to reconsider
its precedents.
II
In contrast to the criminal-procedure context, “[c]onsider-
ations in favor of stare decisis are at their acme in cases
involving property and contract rights.” Payne, 501 U. S.,
at 828. Despite that fact, the Court has recently overruled
precedent where the Court's shift threatened vast regula-
tory and economic consequences. Janus v. State, County,
and Municipal Employees, 585 U. S. 878 (2018); id., at 952
(Kagan, J., dissenting) (noting that the Court's opinion called
into question “thousands of . . . contracts covering millions
of workers”); see South Dakota v. Wayfair, Inc., 585 U. S.
162, 186 (2018) (noting the “legitimate” burdens that the
Court's overruling of precedent would place on vendors who
had started businesses in reliance on a previous decision).
This case, by contrast, threatens no broad upheaval of pri-
vate economic rights. Particularly when compared to the
interests of private parties who have structured their affairs

114 RAMOS
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Sotomayor, J., concurring in part
in reliance on our decisions, the States' interests here in
avoidi
ng a modest number of retrials—emphasized at such
length by the dissent—are much less weighty. They are
certainly not new: Opinions that force changes in a State's
criminal procedure typically impose such costs. And were
th is Cour t to t ake the dissent's approach— defendi ng
criminal-procedure opinions as wrong as Apodaca simply to
avoid burdening criminal justice systems—it would never
correct its criminal jurisprudence at all.
To pick up on the majority's point, ante, at 108, in that
alternate universe, a trial judge alone could still decide the
critical facts necessary to sentence a defendant to death.
Walton v. Arizona, 497 U. S. 639 (1990), overruled by Ring
v. Arizona, 536 U. S. 584 (2002). An offcer would still be
able to search a car upon the arrest of any one of its recent
occupants. New York v. Belton, 453 U. S. 454 (1981), holding
limited by Arizona v. Gant, 556 U. S. 332 (2009). And
States could still deprive a defendant of the right to confront
her accuser so long as the incriminating statement was “reli-
able.” Ohio v. Roberts, 448 U. S. 56 (1980), abrogated by
Crawford v. Washington, 541 U. S. 36 (2004). The Constitu-
tion demands more than the continued use of fawed criminal
procedures—all because the Court fears the consequences of
changing course.
III
Finally, the majority vividly describes the legacy of racism
that generated Louisiana's and Oregon's laws. Ante, at 87–
88, 99–100, and n. 44. Although Ramos does not bring an
equal protection challenge, the history is worthy of this
Court's attention. That is not simply because that legacy ex-
isted in the frst place—unfortunately, many laws and policies
in this country have had some history of racial animus—but
also because the States' legislatures never truly grappled with
the laws' sordid history in reenacting them. See generally
United States v. Fordice, 505 U. S. 717, 729 (1992) (policies
that are “traceable” to a State's de jure racial segregation

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115
Kavanaugh, J., concurring in part
and that still “have discriminatory effects” offend the Equal
Protec
tion Clause).
Where a law otherwise is untethered to racial 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. That cannot be said of the laws at
issue here. While the dissent points to the “legitimate” rea-
sons for Louisiana's reenactment, post, at 142, Louisiana's
perhaps only effort to contend with the law's discriminatory
purpose and effects came recently, when the law was re-
pealed altogether.
Today, Louisiana's and Oregon's laws are fu l ly—and
rightly—relegated to the dustbin of history. And so, too,
is Apodaca. While overruling precedent must be rare, this
Court should not shy away from correcting its errors where
the right to avoid imprisonment pursuant to unconstitutional
procedures hangs in the balance.
Justice Kavanaugh, concurring in part.
In Apodaca v. Oregon, this Court held that state juries
need not be unanimous in order to convict a criminal defend-
ant. 406 U. S. 404 (1972). Two States, Louisiana and Ore-
gon, have continued to use non-unanimous juries in criminal
cases. Today, the Court overrules Apodaca and holds that
state juries must be unanimous in order to convict a crimi-
nal defendant.
I agree with the Court that the time has come to overrule
Apodaca. I therefore join the introduction and Parts I, II–
A, III, and IV–B–1 of the Court's persuasive and important
opinion. I write separately to explain my view of how stare
decisis applies to this case.
I
The legal doctrine of stare decisis derives from the Latin
maxim “stare decisis et non quieta movere,” which means to
stand by the thing decided and not disturb the calm. The
doctrine refects respect for the accumulated wisdom of

116 RAMOS
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Kavanaugh, J., concurring in part
judges who have previously tried to solve the same problem.
In
1765, Blackstone—“the preeminent authority on English
law for the founding generation,” Alden v. Maine, 527 U. S.
706, 715 (1999)—wrote that “it is an established rule to abide
by former precedents,” to “keep the scale of justice even
and steady, and not liable to waver with every new judge's
opinion.” 1 W. Blackstone, Commentaries on the Laws of
England 69 (1765). The Framers of our Constitution under-
stood that the doctrine of stare decisis is part of the “judicial
Power” and rooted in Article III of the Constitution. Writ-
ing in Federalist 78, Alexander Hamilton emphasized the im-
portance of stare decisis: To “avoid an arbitrary discretion in
the courts, it is indispensable” that federal judges “should be
bound down by strict rules and precedents, which serve to
defne and point out their duty in every particular case that
comes before them.” The Federalist No. 78, p. 529 (J. Cooke
ed. 1961). In the words of The Chief Justice, stare deci-
sis' “greatest purpose is to serve a constitutional ideal—the
rule of law.” Citizens United v. Federal Election Comm'n,
558 U. S. 310, 378 (2010) (concurring opinion).
This Court has repeatedly explained that stare decisis
“promotes the evenhanded, predictable, and consistent devel-
opment of legal principles, fosters reliance on judicial deci-
sions, and contributes to the actual and perceived integrity
of the judicial process.” Payne v. Tennessee, 501 U. S. 808,
827 (1991). The doctrine “permits society to presume that
bedrock principles are founded in the law rather than in the
proclivities of individuals, and thereby contributes to the in-
tegrity of our constitutional system of government, both in
appearance and in fact.” Vasquez v. Hillery, 474 U. S. 254,
265–266 (1986).
The doctrine of stare decisis does not mean, of course, that
the Court should never overrule erroneous precedents. All
Justices now on this Court agree that it is sometimes appro-
priate for the Court to overrule erroneous decisions. In-
deed, in just the last few Terms, every current Member of

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Kavanaugh, J., concurring in part
this Court has voted to overrule multiple constitutional prec-
edents.
See, e. g., Knick v. Township of Scott, 588 U. S. 180
(2019); Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. 230
(2019); Janus v. State, County, and Municipal Employees,
585 U. S. 878 (2018); Hurst v. Florida, 577 U. S. 92 (2016);
Obergefell v. Hodges, 576 U. S. 644 (2015); Johnson v. United
States, 576 U. S. 591 (2015); Alleyne v. United States, 570
U. S. 99 (2013); see also Baude, Precedent and Discretion,
2020 S. Ct. Rev. 1, 4 (forthcoming) (“Nobody on the Court
believes in absolute stare decisis”).
Historically, moreover, some of the Court's most notable
and consequential decisions have entailed overruling prece-
dent. See, e. g., Obergefell v. Hodges, 576 U. S. 644 (2015);
Citizens United v. Federal Election Comm'n, 558 U. S. 310
(2010); Montejo v. Louisiana, 556 U. S. 778 (2009); Crawford
v. Washington, 541 U. S. 36 (2004); Lawrence v. Texas, 539
U. S. 558 (2003); Ring v. Arizona, 536 U. S. 584 (2002); Agos-
tini v. Felton, 521 U. S. 203 (1997); Seminole Tribe of Fla. v.
Florida, 517 U. S. 44 (1996); Planned Parenthood of South-
eastern Pa. v. Casey, 505 U. S. 833 (1992);
1
Payne v. Tennes-
see, 501 U. S. 808 (1991); Batson v. Kentucky, 476 U. S. 79
(1986); Garcia v. San Antonio Metropolitan Transit Author-
ity, 469 U. S. 528 (1985); Illinois v. Gates, 462 U. S. 213 (1983);
United States v. Scott, 437 U. S. 82 (1978); Craig v. Boren, 429
U. S. 190 (1976); Taylor v. Louisiana, 419 U. S. 522 (1975);
Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam); Katz
v. United States, 389 U. S. 347 (1967); Miranda v. Arizona,
384 U. S. 436 (1966); Malloy v. Hogan, 378 U. S. 1 (1964);
Wesberry v. Sanders, 376 U. S. 1 (1964); Gideon v. Wain-
1
In Casey, the Court reaffrmed what it described as the “central hold-
ing ” of Roe v. Wade, 410 U. S. 113 (1973), the Court expressly rejected
Roe's trimester framework, and the Court expressly overruled two other
important abortion precedents, Akron v. Akron Center for Reproductive
Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U. S. 747 (1986). See Casey, 505
U. S., at 861; id., at 870, 873 (plurality opinion).

118 RAMOS
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Kavanaugh, J., concurring in part
wright, 372 U. S. 335 (1963); Baker v. Carr, 369 U. S. 186
(1962);
Mapp v. Ohio, 367 U. S. 643 (1961); Brown v. Board
of Education, 347 U. S. 483 (1954); Smith v. Allwright, 321
U. S. 649 (1944); West Virginia Bd. of Ed. v. Barnette, 319
U. S. 624 (1943); United States v. Darby, 312 U. S. 100 (1941);
Erie R. Co. v. Tompkins, 304 U. S. 64 (1938); West Coast
Hotel Co. v. Parrish, 300 U. S. 379 (1937).
The lengthy and extraordinary list of landmark cases that
overruled precedent includes the single most important and
greatest decision in this Court's history, Brown v. Board of
Education, which repudiated the separate but equal doctrine
of Plessy v. Ferguson, 163 U. S. 537 (1896).
As those many examples demonstrate, the doctrine of
stare decisis does not dictate, and no one seriously maintains,
that the Court should never overrule erroneous precedent.
As the Court has often stated and repeats today, stare deci-
sis is not an “inexorable command.” E. g., ante, at 105.
On the other hand, as Justice Jackson explained, just “be-
cause one should avoid Scylla is no reason for crashing into
Charybdis.” Jackson, Decisional Law and Stare Decisis, 30
A. B. A. J. 334 (1944). So no one advocates that the Court
should always overrule erroneous precedent.
Rather, applying the doctrine of stare decisis, this Court
ordinarily adheres to precedent, but sometimes overrules
precedent. The diffcult question, then, is when to overrule
an erroneous precedent.
To begin with, the Court's precedents on precedent distin-
guish statutory cases and constitutional cases.
In statutory cases, stare decisis is comparatively strict, as
history shows and the Court has often stated. That is be-
cause Congress and the President can alter a statutory prec-
edent by enacting new legislation. To be sure, enacting new
legislation requires fnding room in a crowded legislative
docket and securing the agreement of the House, the Senate
(in effect, 60 Senators), and the President. Both by design
and as a matter of fact, enacting new legislation is diffcult—

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Kavanaugh, J., concurring in part
and far more diffcult than the Court's cases sometimes seem
to
assume. Nonetheless, the Court has ordinarily left the
updating or correction of erroneous statutory precedents to
the legislative process. See, e. g., Kimble v. Marvel Enter-
tainment, LLC, 576 U. S. 446, 456–457 (2015); Patterson v.
McLean Credit Union, 491 U. S. 164, 172–173 (1989); Flood
v. Kuhn, 407 U. S. 258, 283–284 (1972). The principle that
“it is more important that the applicable rule of law be set-
tled than that it be settled right” is “commonly true even
where the error is a matter of serious concern, provided cor-
rection can be had by legislation.” Burnet v. Coronado
Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissent-
ing) (emphasis added).
2
In constitutional cases, by contrast, the Court has repeat-
edly said—and says again today—that the doctrine of stare
decisis is not as “infexible.” Burnet, 285 U. S., at 406
(Brandeis, J., dissenting); see also ante, at 105–106; Payne, 501
U. S., at 828; Scott, 437 U. S., at 101. The reason is straight-
forward: As Justice O'Connor once wrote for the Court, stare
decisis is not as strict “when we interpret the Constitution
because our interpretation can be altered only by constitu-
tional amendment or by overruling our prior decisions.”
Agostini, 521 U. S., at 235. The Court therefore “must bal-
ance the importance of having constitutional questions de-
cided against the importance of having them decided right.”
Citizens United, 558 U. S., at 378 (Roberts, C. J., concur-
ring). It follows “that in the unusual circumstance when
fdelity to any particular precedent does more to damage this
constitutional ideal than to advance it, we must be more will-
ing to depart from that precedent.” Ibid. In his canonical
2
The Court's precedents applying common-law statutes and pronounc-
ing the Court's own interpretive methods and principles typically do not
fall within that category of stringent statutory stare decisis. See Leegin
Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 899–907
(2007); Kisor v. Wilkie, 588 U. S. 558, 623–626 (2019) (Gorsuch, J., concur-
ring in judgment).

120 RAMOS
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Kavanaugh, J., concurring in part
opinion in Burnet, Justice Brandeis described the Court's
prac
tice with respect to stare decisis in constitutional cases
in a way that was accurate then and remains accurate now:
In “cases involving the Federal Constitution, where correc-
tion through legislative action is practically impossible, this
Court has often overruled its earlier decisions.” 285 U. S.,
at 406–407 (dissenting opinion).
That said, in constitutional as in statutory cases, to “over-
rule an important precedent is serious business.” Jackson,
30 A. B. A. J., at 334. In constitutional as in statutory cases,
adherence to precedent is the norm. To overrule a constitu-
tional decision, the Court's precedents on precedent still re-
quire a “special justifcation,” Allen v. Cooper, 589 U. S.
248, 259–260 (2020) (internal quotation marks omitted); Ari-
zona v. Rumsey, 467 U. S. 203, 212 (1984), or otherwise
stated, “strong grounds,” Janus, 585 U. S., at 917.
In particular, to overrule a constitutional precedent, the
Court requires something “over and above the belief that
the precedent was wrongly decided.” Allen, 589 U. S., at
259–260 (internal quotation marks omitted). As Justice
Scalia put it, the doctrine of stare decisis always requires
“reasons that go beyond mere demonstration that the over-
ruled opinion was wrong,” for “otherwise the doctrine would
be no doctrine at all.” Hubbard v. United States, 514 U. S.
695, 716 (1995) (opinion concurring in part and concurring in
judgment). To overrule, the Court demands a special justi-
fcation or strong grounds.
But the “special justifcation” or “strong grounds” formula-
tion elides a key question: What constitutes a special justif-
cation or strong grounds?
3
In other words, in deciding
3
The Court frst used the term “special justifcation” in the stare decisis
context in 1984, without explaining what the term might entail. See Ari-
zona v. Rumsey, 467 U. S. 203, 212. In employing that term, the Court
did not suggest that it was imposing a new stare decisis requirement as
opposed to merely describing the Court's historical practice with respect
to stare decisis.

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Kavanaugh, J., concurring in part
whether to overrule an erroneous constitutional decision,
how
does the Court know when to overrule and when to
stand pat?
As the Court has exercised the “judicial Power” over time,
the Court has identifed various stare decisis factors. In ar-
ticulating and applying those factors, the Court has, to bor-
row James Madison's words, sought to liquidate and ascer-
tain the meaning of the Article III “judicial Power” with
respect to precedent. The Federalist No. 37, at 236.
The stare decisis factors identifed by the Court in its past
cases include:
•
the quality of the precedent's reasoning;
•
the precedent's consistency and coherence with previous
or subsequent decisions;
•
changed law since the prior decision;
•
changed facts since the prior decision;
•
the workability of the precedent;
•
the reliance interests of those who have relied on the
precedent; and
•
the age of the precedent.
But the Court has articulated and applied those various indi-
vidual factors without establishing any consistent methodol-
ogy or roadmap for how to analyze all of the factors taken to-
gether. And in my view, that muddle poses a problem for the
rule of law and for this Court, as the Court attempts to apply
stare decisis principles in a neutral and consistent manner.
As I read the Court's cases on precedent, those varied and
somewhat elastic stare decisis factors fold into three broad
considerations that, in my view, can help guide the inquiry
and help determine what constitutes a “special justifca-
tion” or “strong grounds” to overrule a prior constitutional
decision.
First, is the prior decision not just wrong, but grievously
or egregiously wrong? A garden-variety error or disagree-

122 RAMOS
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Kavanaugh, J., concurring in part
ment does not suffce to overrule. In the view of the Court
that
is considering whether to overrule, the precedent must
be egregiously wrong as a matter of law in order for the
Court to overrule it. In conducting that inquiry, the Court
may examine the quality of the precedent's reasoning, con-
sistency and coherence with other decisions, changed law,
changed facts, and workability, among other factors. A case
may be egregiously wrong when decided, see, e. g., Kore-
matsu v. United States, 323 U. S. 214 (1944); Plessy v. Fergu-
son, 163 U. S. 537 (1896), or may be unmasked as egregiously
wrong based on later legal or factual understandings or de-
velopments, see, e. g., Nevada v. Hall, 440 U. S. 410 (1979),
or both, ibid.
Second, has the prior decision caused signifcant negative
jurisprudential or real-world consequences? In conducting
that inquiry, the Court may consider jurisprudential conse-
quences (some of which are also relevant to the frst inquiry),
such as workability, as well as consistency and coherence
with other decisions, among other factors. Importantly, the
Court may also scrutinize the precedent's real-world effects
on the citizenry, not just its effects on the law and the legal
system. See, e. g., Brown v. Board of Education, 347 U. S.,
at 494–495; Barnette, 319 U. S., at 630–642; see also Payne,
501 U. S., at 825–827.
Third, would overruling the prior decision unduly upset
reliance interests? This consideration focuses on the legiti-
mate expectations of those who have reasonably relied on
the precedent. In conducting that inquiry, the Court may
examine a variety of reliance interests and the age of the
precedent, among other factors.
In short, the frst consideration requires inquiry into how
wrong the precedent is as a matter of law. The second and
third considerations together demand, in Justice Jackson's
words, a “sober appraisal of the disadvantages of the innova-
tion as well as those of the questioned case, a weighing of

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Kavanaugh, J., concurring in part
practical effects of one against the other.” Jackson, 30
A.
B. A. J., at 334.
Those three considerations together provide a structured
methodology and roadmap for determining whether to over-
rule an erroneous constitutional precedent. The three con-
siderations correspond to the Court's historical practice and
encompass the various individual factors that the Court has
applied over the years as part of the stare decisis calculus.
And they are consistent with the Founding understanding
and, for example, Blackstone's shorthand description that
overruling is warranted when (and only when) a precedent
is “manifestly absurd or unjust.” 1 Blackstone, Commentar-
ies on the Laws of England, at 70.
Taken together, those three considerations set a high (but
not insurmountable) bar for overruling a precedent, and they
therefore limit the number of overrulings and maintain sta-
bility in the law.
4
Those three considerations also constrain
judicial discretion in deciding when to overrule an erroneous
precedent. To be sure, applying those considerations is not
a purely mechanical exercise, and I do not claim otherwise.
I suggest only that those three considerations may better
structure how to consider the many traditional stare decisis
factors.
It is inevitable that judges of good faith applying the stare
decisis considerations will sometimes disagree about when
to overrule an erroneous constitutional precedent, as the
Court does in this case. To begin with, judges may disagree
about whether a prior decision is wrong in the frst place—
and importantly, that disagreement is sometimes the real
dispute when judges joust over stare decisis. But even
when judges agree that a prior decision is wrong, they may
4
Another important factor that limits the number of overrulings is that
the Court typically does not overrule a precedent unless a party requests
overruling, or at least unless the Court receives briefng and argument on
the stare decisis question.

124 RAMOS
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Kavanaugh, J., concurring in part
disagree about whether the decision is so egregiously wrong
as
to justify an overruling. Judges may likewise disagree
about the severity of the jurisprudential or real-world conse-
quences caused by the erroneous decision and, therefore,
whether the decision is worth overruling. In that regard,
some judges may think that the negative consequences can
be addressed by narrowing the precedent (or just living with
it) rather than outright overruling it. Judges may also dis-
agree about how to measure the relevant reliance interests
that might be affected by an overruling. And on top of all
of that, judges may also disagree about how to weigh and
balance all of those competing considerations in a given
case.
5
This case illustrates that point. No Member of the Court
contends that the result in Apodaca is correct. But the
Members of the Court vehemently disagree about whether
to overrule Apodaca.
II
Applying the three broad stare decisis considerations to
this case, I agree with the Court's decision to overrule
Apodaca.
First, Apodaca is egregiously wrong. The original mean-
ing and this Court's precedents establish that the Sixth
Amendment requires a unanimous jury. Ante, at 92; see,
e. g., Patton v. United States, 281 U. S. 276, 288 (1930);
Thompson v. Utah, 170 U. S. 343, 351 (1898). And the origi-
nal meaning and this Court's precedents establish that the
5
To be clear, the stare decisis issue in this case is one of horizontal stare
decisis—that is, the respect that this Court owes to its own precedents
and the circumstances under which this Court may appropriately overrule
a precedent. By contrast, vertical stare decisis is absolute, as it must be
in a hierarchical system with “one supreme Court.” U. S. Const., Art.
III, § 1. In other words, the state courts and the other federal courts
have a constitutional obligation to follow a precedent of this Court unless
and until it is overruled by this Court. See Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U. S. 477, 484 (1989).

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125
Kavanaugh, J., concurring in part
Fourteenth Amendment incorporates the Sixth Amendment
jury
trial right against the States. See Duncan v. Louisi-
ana, 391 U. S. 145, 149 (1968); id., at 166 (Black, J., concur-
ring); see also Malloy, 378 U. S., at 10–11; see generally
Timbs v. Indiana, 586 U. S. 146 (2019); McDonald v. Chi-
cago, 561 U. S. 742 (2010). When Apodaca was decided,
it was already an outlier in the Court's jurisprudence, and
over time it has become even more of an outlier. As the
Court today persuasively explains, the original meaning of
the Sixth and Fourteenth Amendments and this Court's
two lines of decisions—the Sixth Amendment jury cases
and the Four teenth Amendment i ncor porati on cases—
overwhelmingly demonstrate that Apodaca's holding is egre-
giously wrong.
6
6
Notwithstanding the splintered 4–1–4 decision in Apodaca, its bottom-
line result carried precedential force. In the American system of stare
decisis, the result and the reasoning each independently have precedential
force, and courts are therefore bound to follow both the result and the
reasoning of a prior decision. See Seminole Tribe of Fla. v. Florida, 517
U. S. 44, 67 (1996); Randall v. Sorrell, 548 U. S. 230, 243 (2006) (opinion of
Breyer, J.); County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573, 668 (1989) (Kennedy, J., concur-
ring in judgment in part and dissenting in part). The result of Apodaca
was that state criminal juries need not be unanimous. That precedential
result has been followed by this Court and the other federal and state
courts for the last 48 years. To be sure, Apodaca had no majority opinion.
When the Court's decision is splintered, courts follow the result, and they
also follow the reasoning or standards set forth in the opinion constituting
the “narrowest grounds” of the Justices in the majority. See Marks v.
United States, 430 U. S. 188, 193 (1977). That Marks rule is ordinarily
commonsensical to apply and usually means that courts in essence heed
the opinion that occupies the middle-ground position between (i) the
broadest opinion among the Justices in the majority and (ii) the dissenting
opinion. See United States v. Duvall, 740 F. 3d 604, 610–611 (CADC
2013) (Kavanaugh, J., concurring in denial of rehearing en banc). On very
rare occasions, as in Apodaca, it can be diffcult to discern which opinion's
reasoning has precedential effect under Marks. See also Nichols v.
United States, 511 U. S. 738, 745–746 (1994) (analyzing Baldasar v. Illi-
nois, 446 U. S. 222 (1980) (per curiam)). But even when that happens,

126 RAMOS
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Second, Apodaca causes signifcant negative consequences.
It
is true that Apodaca is workable. But Apodaca sanctions
the conviction at trial or by guilty plea of some defendants
who might not be convicted under the proper constitutional
rule (although exactly how many is of course unknowable).
That consequence has traditionally supplied some support
for overruling an egregiously wrong criminal-procedure
precedent. See generally Malloy, 378 U. S. 1.
In addition, and signifcant to my analysis of this case, the
origins and effects of the non-unanimous jury rule strongly
support overruling Apodaca. Louisiana achieved statehood
in 1812. And throughout most of the 1800s, the State re-
quired unanimous juries in criminal cases. But at its 1898
state constitutional convention, Louisiana enshrined non-
unanimous juries into the state constitution. Why the
change? The State wanted to diminish the infuence of
black jurors, who had won the right to serve on juries
through the Fourteenth Amendment in 1868 and the Civil
Rights Act of 1875. See Strauder v. West Virginia, 100 U. S.
303, 308–310 (1880); T. Aiello, Jim Crow's Last Stand: Non-
unanimous Criminal Jury Verdicts in Louisiana 16, 19 (2015).
Coming on the heels of the State's 1896 victory in Plessy v.
Ferguson, 163 U. S. 537, the 1898 constitutional convention
expressly sought to “establish the supremacy of the white
race.” Semmes, Chairman of the Committee on the Judi-
ciary, Address at the Louisiana Constitutional Convention in
1898, in Offcial Journal of the Proceedings of the Constitu-
tional Convention of the State of Louisiana 375 (H. Hearsey
ed. 1898). And the convention approved non-unanimous ju-
ries as one pillar of a comprehensive and brutal program of
the result of the decision still constitutes a binding precedent for the fed-
eral and state courts, and for this Court, unless and until it is overruled
by this Court. As I read the Court's various opinions today, six Justices
treat the result in Apodaca as a precedent for purposes of stare decisis
analysis. A different group of six Justices concludes that Apodaca should
be and is overruled.

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Kavanaugh, J., concurring in part
racist Jim Crow measures against African-Americans, espe-
cia
lly in voting and jury service. See Aiello, supra, at 16–
26; Frampton, The Jim Crow Jury, 71 Vand. L. Rev. 1593,
1620 (2018).
7
In light of the racist origins of the non-unanimous jury, it
is no surprise that non-unanimous juries can make a differ-
ence in practice, especially in cases involving black defend-
ants, victims, or jurors. After all, that was the whole point
of adopting the non-unanimous jury requirement in the frst
place. And the math has not changed. Then and now, non-
unanimous juries can silence the voices and negate the votes
of black jurors, especially in cases with black defendants or
black victims, and only one or two black jurors. The 10 ju-
rors “can simply ignore the views of their fellow panel mem-
bers of a different race or class.” Johnson v. Louisiana, 406
U. S. 356, 397 (1972) (Stewart, J., dissenting). That reality—
and the resulting perception of unfairness and racial bias—
can undermine confdence in and respect for the criminal jus-
tice system. The non-unanimous jury operates much the
same as the unfettered peremptory challenge, a practice that
for many decades likewise functioned as an engine of dis-
crimination against black defendants, victims, and jurors.
In effect, the non-unanimous jury allows backdoor and unre-
viewable peremptory strikes against up to 2 of the 12 jurors.
In its 1986 decision in Batson v. Kentucky, the Court
recognized the pervasive racial discrimination woven into
the traditional system of unfettered peremptory challenges.
See 476 U. S., at 85–89, 91. The Court therefore overruled
a prior decision, Swain v. Alabama, 380 U. S. 202 (1965), that
7
Oregon adopted the non-unanimous jury practice in 1934—one manifes-
tation of the extensive 19th- and early 20th-century history of racist and
anti-Semitic sentiment in that State. See Kaplan & Saack, Overturning
Apodaca v. Oregon Should Be Easy: Nonunanimous Jury Verdicts in Crim-
inal Cases Undermine the Credibility of Our Justice System, 95 Ore.
L. Rev. 1, 3, 43–51 (2016); Mooney, Remembering 1857, 87 Ore. L. Rev.
731, 778, n. 174 (2008).

128 RAMOS
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Kavanaugh, J., concurring in part
had allowed those challenges. See generally Flowers v.
M
ississippi, 588 U. S. 284 (2019).
In my view, Apodaca warrants the same fate as Swain.
After all, the “requirements of unanimity and impartial se-
lection thus complement each other in ensuring the fair per-
formance of the vital functions of a criminal court jury.”
Johnson, 406 U. S., at 398 (Stewart, J., dissenting). And
as Justice Thurgood Marshall forcefully explained in dissent
in Apodaca, to “fence out a dissenting juror fences out a
voice from the community, and undermines the principle on
which our whole notion of the jury now rests.” Johnson, 406
U. S., at 402 (Marshall, J., dissenting in both Johnson and
Apodaca).
To be clear, one could advocate for and justify a non-
unanimous jury rule by resort to neutral and legitimate prin-
ciples. England has employed non-unanimous juries, and
various legal organizations in the United States have at
times championed non-unanimous juries. See, e. g., Juries
Act 1974, ch. 23, § 17 (Eng.); ABA Project on Standards for
Criminal Justice, Trial By Jury § 1.1, p. 7 (App. Draft 1968);
ALI, Code of Criminal Procedure § 355, p. 99 (1930). And
Louisiana's modern policy decision to retain non-unanimous
juries—as distinct from its original decision in the late 1800s
to adopt non-unanimous juries—may have been motivated by
neutral principles (or just by inertia).
But the question at this point is not whether the Constitu-
tion prohibits non-unanimous juries. It does. Rather, the
disputed question here is whether to overrule an erroneous
constitutional precedent that allowed non-unanimous juries.
And on that question—the question whether to overrule—
the Jim Crow origins and racially discriminatory effects (and
the perception thereof ) of non-unanimous juries in Louisiana
and Oregon should matter and should count heavily in favor
of overruling, in my respectful view. After all, the non-
unanimous jury “is today the last of Louisiana's Jim Crow
laws.” Aiello, supra, at 63. And this Court has empha-

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Kavanaugh, J., concurring in part
sized time and again the “imperative to purge racial preju-
dice
from the administration of justice” generally and from
the jury system in particular. Pena-Rodriguez v. Colorado,
580 U. S. 206, 221–223 (2017) (collecting cases).
To state the point in simple terms: Why stick by an errone-
ous precedent that is egregiously wrong as a matter of con-
stitutional law, that allows convictions of some who would
not be convicted under the proper constitutional rule, and
that tolerates and reinforces a practice that is thoroughly
racist in its origins and has continuing racially discrimina-
tory effects?
Third, overruling Apodaca would not unduly upset reli-
ance interests. Only Louisiana and Oregon employ non-
unanimous juries in criminal cases. To be sure, in those two
States, the Court's decision today will invalidate some non-
unanimous convictions where the issue is preserved and the
case is still on direct review. But that consequence almost
always ensues when a criminal-procedure precedent that fa-
vors the government is overruled. See Ring, 536 U. S. 584;
Batson, 476 U. S. 79. And here, at least, I would “count that
a small price to pay for the uprooting of this weed.” Hub-
bard, 514 U. S., at 717 (Scalia, J., concurring in part and con-
curring in judgment).
Except for the effects on that limited class of direct-review
cases, it will be relatively easy going forward for Louisiana
and Oregon to transition to the unanimous jury rule that the
other 48 States and the federal courts use. Indeed, in 2018,
Louisiana amended its constitution to require jury unanimity
in criminal trials for crimes committed on or after Janu-
ary 1, 2019, meaning that the transition is already well under
way in Louisiana.
Importantly, moreover, this Court applies a separate non-
retroactivity doctrine to mitigate the disruptive effects of
overrulings in criminal cases. Under the Court's prece-
dents, new constitutional rules apply on direct review, but
generally do not apply retroactively on habeas corpus review.

130 RAMOS
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Kavanaugh, J., concurring in part
See Teague v. Lane, 489 U. S. 288, 311 (1989) (plurality opin-
i
on); Griffth v. Kentucky, 479 U. S. 314, 328 (1987). Teague
recognizes only two exceptions to that general habeas non-
retroactivity principle: “if (1) the rule is substantive or (2)
the rule is a `watershed rul[e] of criminal procedure' impli-
cating the fundamental fairness and accuracy of the criminal
proceeding.” Whorton v. Bockting, 549 U. S. 406, 416 (2007)
(internal quotation marks omitted). The new rule an-
nounced today—namely, that state criminal juries must be
unanimous—does not fall within either of those two narrow
Teague exceptions and therefore, as a matter of federal law,
should not apply retroactively on habeas corpus review.
The frst Teague exception does not apply because today's
new rule is procedural, not substantive: It affects “only
the manner of determining the defendant's culpability.”
Schriro v. Summerlin, 542 U. S. 348, 353 (2004).
The second Teague exception does not apply because to-
day's new rule, while undoubtedly important, is not a “water-
shed” procedural rule. This Court has fatly stated that “it
is unlikely that any such rules” have “yet to emerge.”
Whorton, 549 U. S., at 417 (internal quotation marks omit-
ted). In “the years since Teague, we have rejected every
claim that a new rule satisfed the requirements for water-
shed status.” Id., at 418, 421 (rejecting retroactivity for
Crawford v. Washington, 541 U. S. 36 (2004)); see, e. g., Beard
v. Banks, 542 U. S. 406, 420 (2004) (rejecting retroactivity for
Mills v. Maryland, 486 U. S. 367 (1988)); Summerlin, 542
U. S., at 358 (rejecting retroactivity for Ring v. Arizona, 536
U. S. 584 (2002)); O'Dell v. Netherland, 521 U. S. 151, 167–168
(1997) (rejecting retroactivity for Simmons v. South Caro-
lina, 512 U. S. 154 (1994)); Lambrix v. Singletary, 520 U. S.
518, 539–540 (1997) (rejecting retroactivity for Espinosa v.
Florida, 505 U. S. 1079 (1992) (per curiam)); Sawyer v.
Smith, 497 U. S. 227, 241–245 (1990) (rejecting retroactivity
for Caldwell v. Mississippi, 472 U. S. 320 (1985)); see also
Allen v. Hardy, 478 U. S. 255, 261 (1986) (per curiam) (reject-

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131
Kavanaugh, J., concurring in part
ing retroactivity for Batson v. Kentucky, 476 U. S. 79 (1986));
DeSte
fano v. Woods, 392 U. S. 631, 635 (1968) (per curiam)
(rejecting retroactivity for Duncan, 391 U. S. 145).
So assuming that the Court faithfully applies Teague, to-
day's decision will not apply retroactively on federal ha-
beas corpus review and will not disturb convictions that are
fnal.
8
In addition, as to ineffective-assistance-of-counsel claims,
an attorney presumably would not have been defcient for
failing to raise a constitutional jury-unanimity argument be-
fore today's decision—or at the very least, before the Court
granted certiorari in this case. Before today, after all, this
Court's precedents had repeatedly allowed non-unanimous
juries in state criminal cases. In that situation, the Courts
of Appeals have consistently held that an attorney is not in-
effective for failing to anticipate or advocate for the overrul-
ing of a constitutional precedent of this Court. See, e. g.,
Walker v. United States, 810 F. 3d 568, 577 (CA8 2016);
United States v. Smith, 241 F. 3d 546, 548 (CA7 2001); Honey-
cutt v. Mahoney, 698 F. 2d 213, 216–217 (CA4 1983); see also
Steiner v. United States, 940 F. 3d 1282, 1293 (CA11 2019)
(per curiam); Snider v. United States, 908 F. 3d 183, 192
(CA6 2018); Green v. Johnson, 116 F. 3d 1115, 1125 (CA5
1997).
For those reasons, the reliance interests at stake in this
case are not especially substantial, and they do not mandate
adherence to Apodaca.
9
8
In Allen v. Hardy, 478 U. S. 255 (1986) (per curiam), this Court con-
cluded—without briefng or oral argument—that Batson would not apply
retroactively. Under the well-settled Teague principles, there should be
no doubt that today's decision likewise will not apply retroactively on col-
lateral review.
9
Justice Alito's characteristically incisive dissent rests largely on his
view of the States' reliance interests. My respectful disagreement with
Justice Alito primarily boils down to our different assessments of those
reliance interests—in particular, our different evaluations of how readily
Louisiana and Oregon can adjust to an overruling of Apodaca.

132 RAMOS
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Thomas, J., concurring in judgment
***
In
sum, Apodaca is egregiously wrong, it has signifcant
negative consequences, and overruling it would not unduly
upset reliance interests. I therefore agree with the Court's
decision to overrule Apodaca.
10
Justice Thomas, concurring in the judgment.
I agree with the Court that petitioner Evangelisto Ramos'
felony conviction by a nonunanimous jury was unconstitu-
tional. I write separately because I would resolve this case
based on the Court's longstanding view that the Sixth
Amendment includes a protection against nonunanimous fel-
ony guilty verdicts, without undertaking a fresh analysis of
the meaning of “trial . . . by an impartial jury.” I also would
make clear that this right applies against the States through
the Privileges or Immunities Clause of the Fourteenth
Amendment, not the Due Process Clause.
I
I begin with the parties' dispute as to whether the Sixth
Amendment right to a trial by jury includes a protection
against nonunanimous felony guilty verdicts. On this ques-
tion, I do not write on a blank slate. As the Court acknowl-
edges, our decisions have long recognized that unanimity is
required. See ante, at 92. Because this interpretation
is not demonstrably erroneous, I would resolve the Sixth
Amendment question on that basis.
10
As noted above, I join the introduction and Parts I, II–A, III, and
IV–B–1 of Justice Gorsuch's opinion for the Court. The remainder of
Justice Gorsuch's opinion does not command a majority. That point is
important with respect to Part IV–A, which only three Justices have
joined. It appears that six Justices of the Court treat the result in Apo-
daca as a precedent and therefore do not subscribe to the analysis in Part
IV–A of Justice Gorsuch's opinion.

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133
Thomas, J., concurring in judgment
A
Th
is Court frst decided that the Sixth Amendment pro-
tected a right to unanimity in Thompson v. Utah, 170 U. S.
343 (1898). The Court reasoned that Thompson, a Utah
prisoner, was protected by the Sixth Amendment when Utah
was still a Territory because “the right of trial by jury in
suits at common law appl[ied] to the Territories of the United
States.” Id., at 346. The Court then stated that this right
“made it impossible to deprive him of his liberty except by
[a] unanimous verdict.” Id., at 355; see also id., at 351, 353.
The Court has repeatedly reaffrmed the Sixth Amend-
ment's unanimity requirement. In Patton v. United States,
281 U. S. 276 (1930), the Court stated that the Sixth Amend-
ment protects the right “that the verdict should be unani-
mous,” id., at 288. In Andres v. United States, 333 U. S. 740
(1948), the Court repeated that “[u]nanimity in jury verdicts
is required” by the Sixth Amendment, id., at 748. And in
Apodaca v. Oregon, 406 U. S. 404 (1972), fve Justices agreed
that “the Sixth Amendment's guarantee of trial by jury em-
braces a guarantee that the verdict of the jury must be unan-
imous,” id., at 414 (Stewart, J., joined by Brennan and Mar-
shall, JJ., dissenting); see also Johnson v. Louisiana, 406
U. S. 356, 371 (1972) (Powell, J., concurring) (explaining views
in Apodaca and its companion case); id., at 382–383 (Douglas,
J., joined by Brennan and Marshall, JJ., dissenting) (same).
We have accepted this interpretation of the Sixth Amend-
ment in recent cases. See Southern Union Co. v. United
States, 567 U. S. 343, 356 (2012); Blakely v. Washington, 542
U. S. 296, 301 (2004); Apprendi v. New Jersey, 530 U. S. 466,
477 (2000).
B
The question then becomes whether these decisions are
entitled to stare decisis effect. As I have previously ex-
plained, “the Court's typical formulation of the stare decisis

134 RAMOS
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Thomas, J., concurring in judgment
standard does not comport with our judicial duty under Arti-
cle
III because it elevates demonstrably erroneous deci-
sions—meaning decisions outside the realm of permissible
interpretation—over the text of the Constitution and other
duly enacted federal law.” Gamble v. United States, 587
U. S. 678, 711 (2019) (concurring opinion). There is consider-
able evidence that the phrase “trial . . . by . . . jury” in the
Sixth Amendment was understood since the founding to re-
quire that a felony guilty verdict be unanimous. Because
our precedents are thus not outside the realm of permissible
interpretation, I will apply them.
1
Blackstone—“the preeminent authority on English law for
the founding generation,” Alden v. Maine, 527 U. S. 706, 715
(1999)—wrote that no subject can “be affected either in his
property, his liberty, or his person, but by the unanimous
consent” of a jury, 3 W. Blackstone, Commentaries on the
Laws of England 379 (1772); see also 4 id., at 343. Another
infuential treatise author, Hale, wrote that “the law of Eng-
land hath afforded the best method of trial, that is possible,
. . . namely by a jury . . . all concurring in the same judg-
ment.” 1 M. Hale, Pleas of the Crown 33 (1736) (emphasis
deleted). Such views continued in scholarly works through-
out the early Republic. See, e. g., 2 J. Story, Commentaries
on the Constitution of the United States § 777, p. 248 (1833);
6 N. Dane, Digest of American Law, ch. LXXXII, Art. 2, § 1,
p. 226 (1824); 2 J. Wilson, Works of the Honourable James
Wilson 349–350 (1804).
The uniform practice among the States was in accord.
Despite isolated 17th-century colonial practices allowing non-
unanimous juries, “unanimity became the accepted rule dur-
ing the 18th century, as Americans became more familiar
with the details of English common law and adopted those
details in their own colonial legal systems.” Apodaca,
supra, at 408, n. 3 (plurality opinion). In the founding era,

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135
Thomas, J., concurring in judgment
six States explicitly mentioned unanimity in their constitu-
ti
ons. See Del. Declaration of Rights § 14 (1776); Md. Decla-
ration of Rights, Art. XIX (1776); N. C. Declaration of Rights
§ IX (1776); Pa. Declaration of Rights, Art. IX (1776); Vt.
Const., Art. XI (1786); Va. Declaration of Rights § 8 (1776).
Four more States clearly referred to the common-law jury
right, which included unanimity. Ky. Const., Art. XII, § 6
(1792); N. J. Const., Art. XXII (1776); N. Y. Const., Art. XLI
(1777); S. C. Const., Art. IX, § 6 (1790). Some States did not
explicitly refer to either the common law or unanimity. See,
e. g., Ga. Const., Art. LXI (1777); Mass. Declaration of
Rights, Art. XII (1780). But there is reason to believe that
they nevertheless understood unanimity to be required.
See, e. g., Rouse v. State, 4 Ga. 136, 147 (1848).
In light of the express language used in some State Consti-
tutions, respondent Louisiana argues that the omission of an
express unanimity requirement in the Sixth Amendment re-
fects a deliberate choice. This argument fails to establish
that the Court's decisions are demonstrably erroneous. The
House of Representatives passed a version of the amend-
ment providing that “[t]he trial of all crimes . . . shall be
by an impartial jury of freeholders of the vicinage, with the
requisite of unanimity for conviction, of the right of chal-
lenge, and other accustomed requisites,” 1 Annals of Cong.
435 (1789), but the fnal Amendment contained no reference
to vicinage or unanimity. See Amdt. 6. I agree with Jus-
tice Harlan and the Court that “the meaning of this change
is wholly speculative” and that there is “no concrete evi-
dence” that the Senate rejected the requirement of unanim-
ity. Baldwin v. New York, 399 U. S. 66, 123, n. 9 (1970) (Har-
lan, J., dissenting); see also ante, at 97–98; Letter from
J. Madison to E. Pendleton (Sept. 14, 1789), in 1 Letters and
Other Writings of James Madison 491 (1867). There is thus
suffcient evidence to support this Court's prior interpreta-
tion that the Sixth Amendment right to a trial by jury re-
quires unanimity.

136 RAMOS
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Thomas, J., concurring in judgment
2
There
is also considerable evidence that this understand-
ing persisted up to the time of the Fourteenth Amendment's
ratifcation. State courts, for example, continued to inter-
pret the phrase “trial by jury” to require unanimity in felony
guilty verdicts. The New Hampshire Superior Court of Ju-
dicature expounded on the point:
“The terms `jury,' and `trial by jury,' are, and for ages
have been well known in the language of the law. They
were used at the adoption of the constitution, and al-
ways, it is believed, before that time, and almost always
since, in a single sense.
“A jury for the trial of a cause . . . must return their
unanimous verdict upon the issue submitted to them.
“All the books of the law describe a trial jury substan-
tially as we have stated it. And a `trial by jury' is a
trial by such a body, so constituted and conducted. So
far as our knowledge extends, these expressions were
used at the adoption of the constitution and always be-
fore, in these senses alone by all classes of writers and
speakers.” Opinion of Justices, 41 N. H. 550, 551–552
(1860).
Other state courts held the same view. The Missouri Su-
preme Court in 1860 called unanimity one of the “essential
requisites in a jury trial,” Vaughn v. Scade, 30 Mo. 600, 603,
and the Ohio Supreme Court in 1853 called it one of “the
essential and distinguishing features of the trial by jury, as
known at common law, and generally, if not universally,
adopted in this country,” Work v. State, 2 Ohio St. 297, 306.
Treatises from the Reconstruction era likewise adopted
this position. A leading work on criminal procedure ex-
plained that if a “statute authorizes [a jury] to fnd a verdict
upon anything short of . . . unanimous consent,” it “is void.”
1 J. Bishop, Criminal Procedure § 761, p. 532 (1866). A
widely read treatise on constitutional law reiterated that

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137
Thomas, J., concurring in judgment
“ `by a jury' is generally understood to mean” a body that
“must
unanimously concur in the guilt of the accused before
a conviction can be had.” G. Paschal, The Constitution of
the United States 210 (1876) (capitalization omitted). And
a volume on the jury trial was in agreement. See J. Proffatt,
Trial by Jury § 77, p. 112 (1877).
***
Based on this evidence, the Court's prior interpretation of
the Sixth Amendment's guarantee is not demonstrably erro-
neous. It is within the realm of permissible interpretations
to say that “trial . . . by . . . jury” in that Amendment includes
a protection against nonunanimous felony guilty verdicts.
II
The remaining question is whether that right is protected
against the States. In my view, the Privileges or Immuni-
ties Clause provides this protection. I do not adhere to this
Court's decisions applying due process incorporation, includ-
ing Apodaca and—it seems—the Court's opinion in this case.
The Privileges or Immunities Clause provides that “[n]o
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.”
Amdt. 14, § 1. At the time of the Fourteenth Amendment's
ratifcation, “the terms `privileges' and `immunities' had an
established meaning as synonyms for `rights.' ” McDonald
v. Chicago, 561 U. S. 742, 813 (2010) (Thomas, J., concurring
in part and concurring in judgment). “[T]he ratifying public
understood the Privileges or Immunities Clause to protect
constitutionally enumerated rights” against abridgment by
the States. Id., at 837. The Sixth Amendment right to a
trial by jury is certainly a constitutionally enumerated right.
See Maxwell v. Dow, 176 U. S. 581, 606–608 (1900) (Harlan,
J., dissenting).
The Court, however, has made the Due Process Clause
serve the function that the Privileges or Immunities Clause

138 RAMOS
v. LOUISIANA
Thomas, J., concurring in judgment
shou ld serve. Although the Pr iv i leges or Immunities
Clause
grants “United States citizens a certain collection of
rights—i. e., privileges or immunities—attributable to that
status,” the Court has interpreted the Clause “quite nar-
rowly.” McDonald, 561 U. S., at 808 (opinion of Thomas, J.).
Perhaps to compensate for this limited view of the Privileges
or Immunities Clause, it has incorporated individual rights
against the States through the Due Process Clause. Id.,
at 809.
Due process incorporation is a demonstrably erroneous in-
terpretation of the Fourteenth Amendment. As I have ex-
plained before, “[t]he notion that a constitutional provision
that guarantees only `process' before a person is deprived of
life, liberty, or property could defne the substance of those
rights strains credulity for even the most casual user of
words.” Id., at 811. The unreasonableness of this interpre-
tation is underscored by the Court's struggle to fnd a “guid-
ing principle to distinguish `fundamental' rights that warrant
protection from nonfundamental rights that do not,” ibid., as
well as its many incorrect decisions based on this theory, see
Obergefell v. Hodges, 576 U. S. 644 (2015); Roe v. Wade, 410
U. S. 113 (1973); Dred Scott v. Sandford, 19 How. 393 (1857).
I “decline to apply the legal fction” of due process in-
corporation. Timbs v. Indiana, 586 U. S. 146, 159 (2019)
(Thomas, J., concurring in judgment) (internal quotation
marks omitted). As a result, I part ways with the Court on
both its affrmative argument about the Fourteenth Amend-
ment and its treatment of Apodaca, in which fve Justices
agreed the Sixth Amendment included a right to unanimity
but a different majority concluded that the right did not
apply to the States. See ante, at 93–96.
I would accept petitioner's invitation to decide this case
under the Privileges or Immunities Clause. The Court con-
spicuously avoids saying which Clause it analyzes. See, e. g.,
ante, at 88–89, 93. But one assumes from its silence that
the Court is either following our due process incorporation
precedents or believes that “nothing in this case turns on”

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139
Thomas, J., concurring in judgment
which Clause applies, Timbs, supra, at 157 (Gorsuch, J.,
concurr
ing).
I have already rejected our due process incorporation
cases as demonstrably erroneous, and I fundamentally dis-
agree with applying that theory of incorporation simply be-
cause it reaches the same result in the case before us. Close
enough is for horseshoes and hand grenades, not constitu-
tional interpretation. The textual difference between pro-
tecting “citizens” (in the Privileges or Immunities Clause)
and “person[s]” (in the Due Process Clause) will surely be
relevant in another case. And our judicial duty—not to
mention the candor we owe to our fellow citizens—requires
us to put an end to this Court's due process prestidigitation,
which no one is willing to defend on the merits.
I would simply hold that, because all of the opinions in
Apodaca addressed the Due Process Clause, its Fourteenth
Amendment ruling does not bind us because the proper
question here is the scope of the Privileges or Immunities
Clause. I cannot understand why the Court, having decided
to abandon Apodaca, refuses to correctly root its holding in
the Privileges or Immunities Clause.
1
III
There is no need to prove the original meaning of the Sixth
Amendment right to a trial by jury in this case.
2
The evi-
1
I also note that, under my approach to stare decisis, there is no need to
decide which reliance interests are important enough to save an incorrect
precedent. I doubt that this question is susceptible of principled resolu-
tion in this case, compare ante, at 107–111 (principal opinion), with ante,
at 113–114 (Sotomayor, J., concurring); ante, at 129–131 (Kavanaugh, J.,
concurring); and post, at 158–164 (Alito, J., dissenting), or in any other
case for that matter, see, e. g., Kimble v. Marvel Entertainment, LLC, 576
U. S. 446, 457–458 (2015); Lawrence v. Texas, 539 U. S. 558, 577 (2003);
Dickerson v. United States, 530 U. S. 428, 443 (2000); Planned Parenthood
of Southeastern Pa. v. Casey, 505 U. S. 833, 855–856 (1992).
2
Similarly, I express no view on how fundamental the right to unanimity
is, what other attributes of a criminal jury are protected by the Privileges
or Immunities Clause, what rights are protected in misdemeanor cases, or
what rights are protected in civil trials.

140 RAMOS
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Alito, J., dissenting
dence that I have recounted is enough to establish that our
pre
vious interpretations of the Sixth Amendment are not de-
monstrably erroneous. What is necessary, however, is a
clear understanding of the means by which the Sixth Amend-
ment right applies against the States. We should rely on
the Privileges or Immunities Clause, not the Due Process
Clause or the Fourteenth Amendment in some vague sense.
Accordingly, I concur only in the judgment.
Justice Alito, with whom The Chief Justice joins, and
with whom Justice Kagan joins as to all but Part III–D,
dissenting.
The doctrine of stare decisis gets rough treatment in to-
day's decision. Lowering the bar for overruling our prece-
dents, a badly fractured majority casts aside an important
and long-established decision with little regard for the enor-
mous reliance the decision has engendered. If the majori-
ty's approach is not just a way to dispose of this one case,
the decision marks an important turn.
Nearly a half century ago in Apodaca v. Oregon, 406 U. S.
404 (1972), the Court held that the Sixth Amendment per-
mits non-unanimous verdicts in state criminal trials, and in
all the years since then, no Justice has even hinted that Apo-
daca should be reconsidered. Understandably thinking that
Apodaca was good law, the state courts in Louisiana and
Oregon have tried thousands of cases under rules that per-
mit such verdicts. But today, the Court does away with
Apodaca and, in so doing, imposes a potentially crushing
burden on the courts and criminal justice systems of those
States. The Court, however, brushes aside these conse-
quences and even suggests that the States should have
known better than to count on our decision.
To add insult to injury, the Court tars Louisiana and Ore-
gon with the charge of racism for permitting non-unanimous
verdicts—even though this Court found such verdicts to be

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141
Alito, J., dissenting
constitutional and even though there are entirely legitimate
arg
uments for allowing them.
I would not overrule Apodaca. Whatever one may think
about the correctness of the decision, it has elicited enormous
and entirely reasonable reliance. And before this Court de-
cided to intervene, the decision appeared to have little prac-
tical importance going forward. Louisiana has now abol-
ished non-unanimous verdicts, and Oregon seemed on the
verge of doing the same until the Court intervened.
1
In Part II of this opinion, I will address the surprising
argument, advanced by three Justices in the majority, that
Apodaca was never a precedent at all, and in Part III, I will
explain why stare decisis supports retention of that prece-
dent. But before reaching those issues, I must say some-
thing about the rhetoric with which the majority has seen ft
to begin its opinion.
I
Too much public discourse today is sullied by ad hominem
rhetoric, that is, attempts to discredit an argument not by
proving that it is unsound but by attacking the character or
motives of the argument's proponents. The majority re-
grettably succumbs to this trend. At the start of its opin-
ion, the majority asks this rhetorical question: “Why do Lou-
isiana and Oregon allow nonunanimous convictions?” Ante,
at 87. And the answer it suggests? Racism, white suprem-
acy, the Ku Klux Klan. Ante, at 87–88. Non-unanimous
verdicts, the Court implies, are of a piece with Jim Crow
laws, the poll tax, and other devices once used to disfranchise
African-Americans. Ibid.
If Louisiana and Oregon originally adopted their laws
allowing non-unanimous verdicts for these reasons,
2
that is
1
See Brief for State of Oregon as Amicus Curiae 1–2.
2
Both States resist this suggestion. See Brief for Respondent 36–39;
Brief for State of Oregon as Amicus Curiae 6–8.

142 RAMOS
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Alito, J., dissenting
deplorable, but what does that have to do with the broad
constituti
onal question before us? The answer is: nothing.
For one thing, whatever the reasons why Louisiana and
Oregon originally adopted their rules many years ago, both
States readopted their rules under different circumstances
in later years. Louisiana's constitutional convention of 1974
adopted a new, narrower rule, and its stated purpose was
“judicial effciency.” State v. Hankton, 2012–0375, p. 19
(La. App. 4 Cir. 8/2/13), 122 So. 3d 1028, 1038. “In that de-
bate no mention was made of race.” Ibid.; 7 Records of the
Louisiana Constitutional Convention of 1973: Convention
Transcripts 1184–1189 (La. Constitutional Convention Rec-
ords Comm'n 1977). The people of Louisiana ratifed the
new Constitution. The majority makes no effort to show
either that the delegates to the constitutional convention re-
tained the rule for discriminatory purposes or that propo-
nents of the new Constitution made racial appeals when ap-
proval was submitted to the people. The same is true for
Oregon's revisions and reenactments. Ore. Const., Art. I,
§ 11 (amended May 18, 1934); Ore. Rev. Stat. § 136.450 (1997);
§ 136.610 (1971).
The more important point, however, is that today's deci-
sion is not limited to anything particular about Louisiana or
Oregon. The Court holds that the Sixth Amendment re-
quires jury unanimity in all state criminal trials. If at some
future time another State wanted to allow non-unanimous
verdicts, today's decision would rule that out—even if all
that State's lawmakers were angels.
For this reason, the origins of the Louisiana and Oregon
rules have no bearing on the broad constitutional question
that the Court decides. That history would be relevant if
there were no legitimate reasons why anyone might think
that allowing non-unanimous verdicts is good policy. But
that is undeniably false.
3
3
Among other things, allowing non-unanimous verdicts prevents mistri-
als caused by a single rogue juror, that is, a juror who refuses to pay
attention at trial, expressly defes the law, or spurns deliberation. When

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143
Alito, J., dissenting
Some years ago the British Parliament enacted a law
a
llowing non-unanimous verdicts.
4
Was Parliament under
the sway of the Klan? The Constitution of Puerto Rico per-
mits non-unanimous verdicts.
5
Were the framers of that
Constitution racists? Non-unanimous verdicts were once
advocated by the American Law Institute and the American
Bar Association.
6
Was their aim to promote white suprem-
acy? And how about the prominent scholars who have
taken the same position?
7
Racists all? Of course not. So
all the talk about the Klan, etc., is entirely out of place.
8
We
unanimity is demanded, the work of preventing this must be done in large
measure by more intensive voir dire and more aggressive use of challenges
for cause and peremptory challenges. See Amar, Reinventing Juries: Ten
Suggested Reforms, 28 U. C. D. L. Rev. 1169, 1189–1191 (1995).
4
Juries Act 1974, ch. 23, § 17 (replacing Criminal Justice Act 1967,
ch. 80, § 13). See Lloyd-Bostock & Thomas, Decline of the “Little Parlia-
ment”: Juries and Jury Reform in England and Wales, 62 Law & Contemp.
Prob. 7, 36 (Spring 1999); see also Leib, A Comparison of Criminal Jury
Decision Rules in Democratic Countries, 5 Ohio St. J. Crim. L. 629, 642
(2008).
5
P. R. Const., Art. II, § 11 (establishing “verdict by a majority vote” of
at least 9 of 12 jurors).
6
ALI, Code of Criminal Procedure § 355 (1930); id., Comment, at 1027;
ABA Project on Standards for Criminal Justice Compilation, Trial by Jury
318 (1974).
7
See, e. g., Amar, supra, at 1189–1191; Holland, Improving Criminal
Jury Verdicts: Learning From the Court-Martial, 97 J. Crim. L. & C. 101,
125–141 (2006); Leib, Supermajoritarianism and the American Criminal
Jury, 33 Hastings Const. L. Q. 141, 142 (2006).
8
The majority's defense of its reliance on the original reasons for the
adoption of the Louisiana and Oregon rules is incoherent. On the one
hand, it asks: “[I]f the Sixth Amendment calls on judges to assess the
functional benefts of jury rules, as the Apodaca plurality suggested, how
can that analysis proceed to ignore the very functions those rules were
adopted to serve?” Ante, at 99, n. 44. But three sentences later it an-
swers its own question when it observes that “a jurisdiction adopting a
nonunanimous jury rule for benign reasons would still violate the Sixth
Amendment.” Ibid.
Justice Kavanaugh’s defense, see ante, at 127–129 (opinion concurring
in part), is essentially the same. After reiterating the history recounted
by the majority, he eventually acknowledges that there are “neutral and

144 RAMOS
v. LOUISIANA
Alito, J., dissenting
should set an example of rational and civil discourse instead
of
contributing to the worst current trends.
II
Now to what matters.
A
I begin with the question whether Apodaca was a prece-
dent at all. It is remarkable that it is even necessary to
address this question, but in Part IV–A of the principal opin-
ion, three Justices take the position that Apodaca was never
a precedent. The only truly ftting response to this argu-
ment is: “Really?”
Consider what it would mean if Apodaca was never a prec-
edent. It would mean that the entire legal profession was
fooled for the past 48 years. Believing that Apodaca was a
precedent, the courts of Louisiana and Oregon tried thou-
sands of cases under rules allowing conviction by a vote of
11 to 1 or 10 to 2, and appellate courts in those States upheld
these convictions based on Apodaca.
9
But according to
three Justices in the majority, these courts were deluded.
legitimate” reasons for allowing non-unanimous verdicts and that Louisi-
ana may have retained a version of its old rule for such reasons. He also
agrees with the majority that a rule allowing non-unanimous verdicts
would be unconstitutional no matter what the State's reasons. So what
is the relevance of the original motivations for the Louisiana and Oregon
rules? He offers no explanation. He does opine that allowing such ver-
dicts works to the disadvantage of African-American defendants, but the
effect of various jury decision rules is a complex question that has been
the subject of much social-science research, none of which the opinion
even acknowledges.
9
For Oregon, see, e. g., State v. Bowen, 215 Ore. App. 199, 168 P. 3d 1208
(2007), rev. denied, 345 Ore. 415, 197 P. 3d 1104 (2008), cert. denied, 558
U. S. 815 (2009); State v. Mayo, 13 Ore. App. 582, 511 P. 2d 456 (1973). For
Louisiana, see, e. g., State v. Hodges, 349 So. 2d 250, 260 (La. 1977), cert.
denied, 434 U. S. 1074 (1978); see also State v. Miller, 2010–718, pp. 42–43
(La. App. 5 Cir. 12/28/11), 83 So. 3d 178, 204, writ denied, 2012–0282 (La.
5/18/12), 89 So. 3d 119, cert. denied, 568 U. S. 1157 (2013); State v. McEl-
veen, 2010–0172, pp. 95–96 (La. App. 4 Cir. 9/28/11), 73 So. 3d 1033, 1092,
writ denied, 2011–2567 (La. 4/19/12), 85 So. 3d 692, cert. denied, 568 U. S.
1163 (2013).

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145
Alito, J., dissenting
This Court, for its part, apparently helped to perpetuate
the
illusion, since it reiterated time and again what Apodaca
had established. See Timbs v. Indiana, 586 U. S. 146, 150,
n. 1 (2019) (Apodaca held “that the Sixth Amendment re-
quires jury unanimity in federal, but not state, criminal pro-
ceedings”); McDonald v. Chicago, 561 U. S. 742, 766, n. 14
(2010) (Sixth Amendment “does not require a unanimous
jury verdict in state criminal trials”); United States v. Gau-
din, 515 U. S. 506, 511, n. 2 (1995) (Apodaca “conclude[d] that
jury unanimity is not constitutionally required”); Schad v.
Arizona, 501 U. S. 624, 634, n. 5 (1991) (plurality opinion)
(“[A] state criminal defendant, at least in noncapital cases,
has no federal right to a unanimous jury verdict”); Brown v.
Louisiana, 447 U. S. 323, 330–331 (1980) (plurality opinion)
(“[T]he constitutional guarantee of trial by jury” does not
prescribe “the exact proportion of the jury that must concur
in the verdict”); Burch v. Louisiana, 441 U. S. 130, 136 (1979)
(Apodaca “conclude[d] . . . that a jury's verdict need not be
unanimous to satisfy constitutional requirements”); Ludwig
v. Massachusetts, 427 U. S. 618, 625 (1976) (“holding ” in Apo-
daca was that “the jury's verdict need not be unanimous”);
see also Holland v. Illinois, 493 U. S. 474, 511 (1990)
(Stevens, J., dissenting) (“we have permitted nonunanimous
verdicts,” citing Apodaca); McKoy v. North Carolina, 494
U. S. 433, 468 (1990) (Scalia, J., dissenting) (the Court has
“approved verdicts by less than a unanimous jury,” citing
Apodaca).
Consistent with these statements of the governing law,
whenever defendants convicted by non-unanimous verdicts
sought review in this Court and asked that Apodaca be over-
ruled, the Court denied those requests—without a single
registered dissent.
10
Even the legal academy, never shy
10
See, e. g., Magee v. Louisiana, 585 U. S. 1024 (2018); Sims v. Louisiana,
584 U. S. 951 (2018); Baumberger v. Louisiana, 583 U. S. 950 (2017); Jack-
son v. Louisiana, 572 U. S. 1088 (2014); McElveen v. Louisiana, 568 U. S.
1163 (2013); Miller v. Louisiana, 568 U. S. 1157 (2013); Bowen v. Oregon,
558 U. S. 815 (2009); Lee v. Louisiana, 555 U. S. 823 (2008); McIntyre v.

146 RAMOS
v. LOUISIANA
Alito, J., dissenting
about puncturing misconceptions, was taken in.
11
E
very-
body thought Apodaca was a precedent. But, according to
three of the Justices in the majority, everybody was fooled.
Apodaca, the precedent, was a mirage. Can this be true?
No, it cannot. The idea that Apodaca was a phantom
precedent defes belief. And it certainly disserves impor-
tant objectives that stare decisis exists to promote, including
evenhandedness, predictability, and the protection of legiti-
mate reliance. See, e.g., Gamble v. United States, 587 U. S.
678, 691 (2019); Kimble v. Marvel Entertainment, LLC, 576
U. S. 446, 455–456 (2015); Payne v. Tennessee, 501 U. S. 808,
827 (1991).
B
Under any reasonable understanding of the concept, Apo-
daca was a precedent, that is, “a decided case that furnishes
a basis for determining later cases involving similar facts or
issues.” Black's Law Dictionary 1366 (10th ed. 2014); see
also J. Salmond, Jurisprudence 191 (10th ed. 1947); M. Ger-
hardt, The Power of Precedent 3 (2008); Landes & Posner,
Louisiana, 449 U. S. 871 (1980); Hodges v. Louisiana, 434 U. S. 1074 (1978).
On June 7, 1972, shortly after Apodaca was handed down, the Court de-
nied certiorari in a number of cases asking the Court to recognize a right
to unanimity in state jury trials. Blevins v. Oregon, 406 U. S. 972; Mar-
tinka v. Oregon, 406 U. S. 973; Andrews v. Oregon, 406 U. S. 973; Planck
v. Oregon, 406 U. S. 973; Riddell v. Oregon, 406 U. S. 973; Mitchell v. Ore-
gon, 406 U. S. 973; Atkison v. Oregon, 406 U. S. 973; Temple v. Oregon, 406
U. S. 973; Davis v. Oregon, 406 U. S. 974; O'Dell v. Oregon, 406 U. S. 974;
Miller v. Oregon, 406 U. S. 974.
Contrary to the majority opinion, I am not arguing that the denial of
certiorari is precedential. See ante, at 105, n. 56. My point, instead, is
that the Court's pattern of denying review in cases presenting the ques-
tion whether unanimity is required in state trials is evidence that this
Court regarded Apodaca as a precedent.
11
D. Rudstein, C. Erlinder, & D. Thomas, 3 Criminal Constitutional Law
§ 14.03[3] (2019); W. LaFave, J. Israel, N. King, & O. Kerr, 6 Criminal
Procedure § 22.1(e) (2015); W. Rich, 2 Modern Constitutional Law § 30:27
(3d ed. 2011).

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147
Alito, J., dissenting
Legal Precedent: A Theoretical and Empirical Analysis, 19
J
. Law & Econ. 249, 250 (1976).
Even though there was no opinion of the Court, the deci-
sion satisfes even the narrowest understanding of a prece-
dent as this Court has understood the concept: The decision
prescribes a particular outcome when all the conditions in a
clearly defned set are met. See Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 67 (1996) (explaining that, at the very
least, we are bound by the “result” in a prior case). In Apo-
daca, this means that when (1) a defendant is convicted in
state court, (2) at least 10 of the 12 jurors vote to convict,
and (3) the defendant argues that the conviction violates the
Constitution because the vote was not unanimous, the chal-
lenge fails. A majority of the Justices in Apodaca expressly
agreed on that result, and that result is a precedent that had to
be followed in subsequent cases until Apodaca was overruled.
That this result constituted a precedent follows a fortiori
from our cases holding that even our summary affrmances of
lower court decisions are precedents for “the precise issues
presented and necessarily decided” by the judgment below.
Mandel v. Bradley, 432 U. S. 173, 176 (1977) (per curiam).
If the Apodaca Court had summarily affrmed a state-court
decision holding that a jury vote of 10 to 2 did not violate
the Sixth Amendment, that summary disposition would be a
precedent. Accordingly, it is impossible to see how a full-
blown decision of this Court reaching the same result can be
regarded as a non-precedent.
12
C
What do our three colleagues say in response? They
begin by suggesting that Louisiana conceded that Apodaca
12
It is true, of course, that a summary affrmance has less precedential
value than a decision on the merits, see, e. g., Comptroller of Treasury of
Md. v. Wynne, 575 U. S. 542, 560–561 (2015), but we have never said the
same about decisions on the merits that were reached without an opinion
of the Court.

148 RAMOS
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Alito, J., dissenting
is not a precedent. See ante, at 101–102. This interpreta-
ti
on of the State's position is questionable,
13
but even if Loui-
siana made that concession, how could that settle the matter?
What about Oregon, the only State that still permits non-
unanimous verdicts? Oregon certainly did not make such a
concession. On the contrary, it submitted an amicus brief
arguing strenuously that Apodaca is a precedent and that
it should be retained. Brief for State of Oregon as Ami-
cus Curiae 6–32. And what about any other State that
might want to allow such verdicts in the future? So the
majority's reliance on Louisiana's purported concession sim-
ply will not do.
Our three colleagues' next try is to argue that Apodaca is
not binding because a case has no ratio decidendi when a
majority does not agree on the reason for the result. Ante,
at 104, and n. 54. This argument, made in passing, consti-
tutes an attack on the rule that the Court adopted in Marks
v. United States, 430 U. S. 188 (1977), for determining the
holding of a decision when there is no majority opinion.
Under the Marks rule, “[w]hen a fragmented Court decides
a case and no single rationale explaining the result enjoys
the assent of fve Justices, the holding of the Court may be
viewed as that position taken by those Members who con-
curred in the judgments on the narrowest grounds.” Id., at
193 (internal quotation marks omitted). This rule ascribes
precedential status to decisions made without majority
agreement on the underlying rationale, and it is therefore
squarely contrary to the argument of the three Justices who
regard Apodaca as non-precedential.
The Marks rule is controversial, and two Terms ago, we
granted review in a case that implicated its meaning. See
Hughes v. United States, 584 U. S. 675 (2018). But we ulti-
mately decided the case on another ground and left the
13
What the State appears to have meant is that Justice Powell's rea-
soning was not binding. See Brief for Respondent 47; Tr. of Oral Arg.
37–38.

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149
Alito, J., dissenting
Marks rule intact. As long as that rule stands, it refutes
the
argument that Apodaca is not binding because a major-
ity did not agree on a common rationale.
Finally, our three colleagues contend that treating Apo-
daca as a precedent would require the Court “to embrace a
new and dubious proposition: that a single Justice writing
only for himself has the authority to bind this Court to prop-
ositions it has already rejected.” Ante, at 102. This argu-
ment appears to weave together three separate questions
relating to the precedential effect of decisions in which there
is no majority opinion. I will therefore attempt to untangle
these questions and address each in turn.
An initial question is whether, in a case where there is no
opinion of the Court, the position taken by a single Justice
in the majority can constitute the binding rule for which the
decision stands. Under Marks, the clear answer to this
question is yes. The logic of Marks applies equally no mat-
ter what the division of the Justices in the majority, and I
am aware of no case holding that the Marks rule is inapplica-
ble when the narrowest ground is supported by only one Jus-
tice. Certainly the lower courts have understood Marks to
apply in that situation.
14
The next question is whether the Marks rule applies any
differently when the precedent that would be established by
a fractured decision would overrule a prior precedent.
Again, the logic of Marks dictates an affrmative answer, and
I am aware of no case holding that the Marks rule applies
14
See Grutter v. Bollinger, 539 U. S. 306, 321 (2003) (discussing lower
court's treatment of Justice Powell's opinion in Regents of Univ. of Cal. v.
Bakke, 438 U. S. 265 (1978)); Planned Parenthood of Southeastern Pa. v.
Casey, 947 F. 2d 682, 694–698 (CA3 1991) (noting that “[t]he binding opin-
ion from a splintered decision is as authoritative for lower courts as a nine-
Justice opinion,” and concluding based on opinions of Justice O'Connor
that the test for the constitutionality of abortion regulations is undue bur-
den), aff 'd in part and rev'd in part, 505 U. S. 833 (1992); Blum v. Witco
Chemical Corp., 888 F. 2d 975, 981 (CA3 1989); see also United States v.
Duvall, 705 F. 3d 479, 483, n. 1 (CADC 2013) (Kavanaugh, J., for the court).

150 RAMOS
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Alito, J., dissenting
any differently in this situation. But as far as the present
case
is concerned, this question is academic because Apodaca
did not overrule any prior decision of this Court. At most,
what the Court had “recognized,” ante, at 92, in prior cases
is that the Sixth Amendment guaranteed the right to a unan-
imous jury verdict in trials in federal and territorial
courts.
15
Whether the same rule applied in state prosecu-
tions had not been decided, and indeed, until Duncan v. Lou-
isiana, 391 U. S. 145, 154–158 (1968), was handed down just
four years before Apodaca, the Sixth Amendment had not
been held to apply to the States.
The fnal question is whether Justice Powell's reasoning in
Apodaca—namely, his view that the Fourteenth Amendment
did not incorporate every aspect of the Sixth Amendment
jury-trial right—is a binding precedent, and the answer to
that question is no. When, in the years after Apodaca, new
questions arose about the scope of the jury-trial right in
state court—as they did in cases like Apprendi v. New Jer-
sey, 530 U. S. 466 (2000), and Blakely v. Washington, 542
U. S. 296 (2004)—nobody thought for a second that Apodaca
committed the Court to Justice Powell's view that the right
has different dimensions in state and federal cases. And no
one on this Court or on a lower court had any trouble locat-
ing the narrow common ground between Justice Powell and
the plurality in Apodaca: The States need not require una-
nimity to comply with the Constitution.
For all these reasons, Apodaca clearly was a precedent,
and if the Court wishes to be done with it, it must explain
why overruling Apodaca is consistent with the doctrine of
stare decisis.
III
A
Stare decisis has been a fundamental part of our jurispru-
dence since the founding, and it is an important doctrine.
15
See, e. g., Andres v. United States, 333 U. S. 740, 748 (1948); Thompson
v. Utah, 170 U. S. 343, 351 (1898).

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151
Alito, J., dissenting
But, as we have said many times, it is not an “inexorable
command.
” Payne, 501 U. S., at 828; Gamble, 587 U. S., at
690–691. There are circumstances when past decisions
must be overturned, but we begin with the presumption that
we will follow precedent, and therefore when the Court de-
cides to overrule, it has an obligation to provide an explana-
tion for its decision.
This is imperative because the Court should have a body
of neutral principles on the question of overruling precedent.
The doctrine should not be transformed into a tool that fa-
vors particular outcomes.
16
B
What is the majority's justifcation for overruling Apo-
daca? With no apparent appreciation of the irony, today's
majority, which is divided into four separate camps,
17
criti-
cizes the Apodaca majority as “badly fractured.” Ante, at
93. But many important decisions currently regarded as
precedents were decided without an opinion of the Court.
18
16
It is also important that the Court as a whole adhere to its “prece-
dent[s] about precedent.” Alleyne v. United States, 570 U. S. 99, 134
(2013) (Alito, J., dissenting). If individual Justices apply different stand-
ards for overruling past decisions, the overall effects of the doctrine will
not be neutral.
17
Three Justices join the principal opinion in its entirety. Two Justices
do not join Part IV–A, but each of these Justices takes a position not
embraced by portions of the principal opinion that they join. See ante,
at 112 (Sotomayor, J., concurring in part) (disavowing principal opinion's
criticism of Justice White's Apodaca opinion as “functionalist”); ante, at
129–131 (Kavanaugh, J., concurring in part) (opining that the decision in
this case does not apply on collateral review). And Justice Thomas
would decide the case on entirely different grounds and thus concurs only
in the judgment. See ante, at 132.
18
See, e. g., National Federation of Independent Business v. Sebelius,
567 U. S. 519 (2012); Williams v. Illinois, 567 U. S. 50 (2012); J. McIntyre
Machinery, Ltd. v. Nicastro, 564 U. S. 873 (2011); McDonald v. Chicago,
561 U. S. 742 (2010); Shady Grove Orthopedic Associates, P. A. v. Allstate
Ins. Co., 559 U. S. 393 (2010); Baze v. Rees, 553 U. S. 35 (2008); Crawford
v. Marion County Election Bd., 553 U. S. 181 (2008); Hamdan v. Rums-
feld, 548 U. S. 557 (2006); Medtronic, Inc. v. Lohr, 518 U. S. 470 (1996);

152 RAMOS
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Does the majority mean to suggest that all such precedents
are
fair game?
The majority's primary reason for overruling Apodaca is
the supposedly poor “quality” of Justice White's plurality
opinion and Justice Powell's separate opinion. Ante, at
105–106. The majority indicts Justice White's opinion on
fve grounds: (1) it “spent almost no time grappling with the
historical meaning of the Sixth Amendment's jury trial
right,”
19
(2) it did not give due weight to the “Court's long-
repeated statements that [the right] demands unanimity,”
20
(3) it did not take into account “the racist origins of [the]
Louisian[a] and Orego[n] laws,”
21
(4) it looked to the function
of the jury-trial right,
22
and (5) it engaged in “a breezy cost-
beneft analysis” that, in any event, did not properly weigh
the costs and benefts.
23
All these charges are overblown.
First, it is quite unfair to criticize Justice White for not
engaging in a detailed discussion of the original meaning of
the Sixth Amendment jury-trial right since he had already
done that just two years before in his opinion for the Court
in Williams v. Florida, 399 U. S. 78, 92–100 (1970). In Wil-
liams, after examining that history, he concluded that the
Sixth Amendment did not incorporate every feature of the
common-law right (a conclusion that the majority, by the
way, does not dispute). And in Apodaca, he built on the
analysis in Williams. Accordingly, there was no need to re-
peat what had been said before.
Second, it is similarly unfair to criticize Justice White for
not discussing the prior decisions that commented on jury
Richmond v. J. A. Croson Co., 488 U. S. 469 (1989); Bakke, 438 U. S. 265;
Gregg v. Georgia, 428 U. S. 153 (1976) ( joint opinion of Stewart, Powell,
and Stevens, JJ.).
19
Ante, at 106.
20
Ibid.
21
Ibid.
22
Ibid.
23
Ante, at 99.

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153
Alito, J., dissenting
unanimity. None of those decisions went beyond saying that
th
is was a feature of the common-law right or cursorily stat-
ing that unanimity was required.
24
And as noted, Williams
had already held that the Sixth Amendment did not preserve
all aspects of the common-law right.
Third, the failure of Justice White (and Justice Powell) to
take into account the supposedly racist origins of the Louisi-
ana and Oregon laws should not be counted as a defect for
the reasons already discussed. See supra, at 142.
Fourth, it is hard to know what to make of the functionalist
charge. One Member of the majority explicitly disavows
this criticism, see ante, at 112 (Sotomayor, J., concurring in
part), and it is most unlikely that all the Justices in the ma-
jority are ready to label all functionalist decisions as poorly
reasoned. Most of the landmark criminal procedure deci-
sions from roughly Apodaca's time fall into that category.
See Mapp v. Ohio, 367 U. S. 643, 654 (1961) (Fourth Amend-
ment); Miranda v. Arizona, 384 U. S. 436, 444 (1966) (Fifth
Amendment); Gideon v. Wainwright, 372 U. S. 335, 344–345
(1963) (Sixth Amendment); Furman v. Georgia, 408 U. S.
238, 239 (1972) (per curiam) (Eighth Amendment).
25
Are
they all now up for grabs?
The functionalist criticism dodges the knotty problem that
led Justice White to look to the underlying purpose of the
jury-trial right. Here is the problem. No one questions
that the Sixth Amendment incorporated the core of the
common-law jury-trial right, but did it incorporate every fea-
ture of the right? Did it constitutionalize the requirement
that there be 12 jurors even though nobody can say why 12
is the magic number? And did it incorporate features that
24
See, e. g., Andres, 333 U. S., at 748; Thompson, 170 U. S., at 351.
25
Five Justices in Furman found that the Eighth Amendment imposes
an evolving standard of decency, 408 U. S., at 255–257 (Douglas, J., concur-
ring); id., at 265–269 (Brennan, J., concurring); id., at 309–310 (Stewart, J.,
concurring); id., at 312–314 (White, J., concurring); id., at 316, 322–333
(Marshall, J., concurring), and our subsequent cases have done the same.

154 RAMOS
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we now fnd highly objectionable, such as the exclusion of
women
from jury service? At the time of the adoption of
the Sixth Amendment (and for many years thereafter),
women were not regarded as ft to serve as a defendant's
peers. Unless one is willing to freeze in place late 18th-
century practice, it is necessary to fnd a principle to distin-
guish between the features that were incorporated and those
that were not. To do this, Justice White's opinion for the
Court in Williams looked to the underlying purpose of the
jury-trial right, which it identifed as interposing a jury of
the defendant's peers to protect against oppression by a
“ `corrupt or overzealous prosecutor' ” or a “ `compliant, bi-
ased, or eccentric judge.' ” 399 U. S., at 100 (quoting Dun-
can, 391 U. S., at 156).
The majority decries this “functionalist” approach but pro-
vides no alternative. It does not claim that the Sixth
Amendment incorporated every feature of common-law prac-
tice, but it fails to identify any principle for identifying the
features that were absorbed. On the question of jury serv-
ice by women, the majority's only answer, buried in a foot-
note, is that the exclusion of women was outlawed by
“further constitutional amendments,” ante, at 101, n. 47, pre-
sumably the Fourteenth Amendment. Does that mean that
the majority disagrees with the holding in Taylor v. Lou-
isiana, 419 U. S. 522 (1975)—another opinion by Justice
White—that the exclusion of women from jury service vio-
lates the Sixth Amendment? Id., at 531, 533–536.
26
26
The majority also notes that the Judiciary Act of 1789 pegged the
qualifcations for service on federal juries to those used in the State in
which a case was tried, ante, at 100–101, n. 47, but since all States barred
women, see Taylor, 419 U. S., at 536, it is hard to see how the 1789 Act
can provide a ground for distinguishing the common law's requirement of
unanimity from its insistence that women were not ft to serve.
Jury practice at the time of the founding differed from current practice
in other important respects. Jurors were not selected at random. “[P]ub-
lic offcials called selectmen, supervisors, trustees, or `sheriffs of the par-
ish' exercised what Tocqueville called `very extensive and very arbitrary'

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Alito, J., dissenting
Fifth, it is not accurate to say that Justice White based his
conclusi
on on a cost-beneft analysis of requiring jury una-
nimity. His point, rather, was that what the Court had al-
ready identifed as the fundamental purpose of the jury-trial
right was not undermined by allowing a verdict of 11 to 1 or
10 to 2.
I cannot say that I would have agreed either with Justice
White's analysis or his bottom line in Apodaca if I had sat
on the Court at that time, but the majority's harsh criticism
of his opinion is unwarranted.
What about Justice Powell's concurrence? The majority
treats Justice Powell's view as idiosyncratic, but it does not
merit that derision. Justice Powell's belief that the Consti-
tution allows the States a degree of fexibility in the inter-
pretation of certain constitutional rights, although not our
dominant approach in recent years, McDonald, 561 U. S., at
759–766, has old and respectable roots. For a long time, that
was the Court's approach. See id., at 759–761. Only gradu-
ally did the Court abandon this “two-tier” system, see id., at
762–767, and it was not until Duncan, supra, at 154–158, de-
cided just four years before Apodaca, that the Sixth Amend-
ment jury-trial right was held to apply to the States at all.
Justice Powell's approach is also not without recent propo-
nents, including, at least with respect to the Second Amend-
ment, Justices now in the majority.
27
powers in summoning jurors.” Alschuler & Deiss, A Brief History of the
Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 879–880 (1994).
And “American trial judges . . . routinely summarized the evidence for
jurors and often told jurors which witnesses they found most credible,
and why.” Sklansky, Evidentiary Instructions and the Jury as Other, 65
Stan. L. Rev. 407, 454 (2013). Any attempt to identify the aspects of late
18th-century practice that were incorporated into the Sixth Amendment
should take the full picture into account and provide a principle for the
distinction.
27
As recently as 2010, prominent advocates urged us to hold that a pro-
vision of the Bill of Rights applies differently to the Federal Government
and the States. In McDonald, 561 U. S. 742, the city of Chicago and some

156 RAMOS
v. LOUISIANA
Alito, J., dissenting
Even now, our cases do not hold that every provision of
the
Bill of Rights applies in the same way to the Federal
Government and the States. A notable exception is the
Grand Jury Clause of the Fifth Amendment, a provision that,
like the Sixth Amendment jury-trial right, refects the im-
portance that the founding generation attached to juries as
safeguards against oppression. In Hurtado v. California,
110 U. S. 516, 538 (1884), the Court held that the Grand Jury
Clause does not bind the States and that they may substitute
preliminary hearings at which the decision to allow a prose-
cution to go forward is made by a judge rather than a defend-
ant's peers. That decision was based on reasoning that is
not easy to distinguish from Justice Powell's in Apodaca.
Hurtado remains good law and is critically important to the
28 States that allow a defendant to be prosecuted for a felony
without a grand jury indictment.
28
If we took the same ap-
of its amici argued that, despite our decision in District of Columbia v.
Heller, 554 U. S. 570 (2008), States and cities should be given leeway to
regulate the possession of a frearm in the home for self-defense in accord-
ance with the particular needs and desires of their citizens. 561 U. S., at
753. Although this argument did not prevail, four Justices, some now in
the majority, appeared to take that view. See id., at 927 (Breyer, J.,
joined by Ginsburg and Sotomayor, JJ., dissenting) (observing that “gun
violence . . . varies as between rural communities and cities” and arguing
that States and cities should be free to adopt rules that meet local needs
and preferences); id., at 866 (Stevens, J., dissenting) (“The rights protected
against state infringement by the Fourteenth Amendment's Due Process
Clause need not be identical in shape or scope to the rights protected
against Federal Government infringement by the various provisions of the
Bill of Rights”).
28
See Ariz. Const., Art. 2, § 30; Ark. Const., Amdt. 21, § 1; Cal. Const.,
Art. I, § 14; Colo. Rev. Stat. § 16–5–205 (2019); Conn. Gen. Stat. § 54–46
(2017); Haw. Const., Art. I, § 10; Idaho Const., Art. I, § 8; Ill. Comp. Stat.,
ch. 725, § 5/111–2(a) (West 2018); Ind. Code § 35–34–1–1(a) (2019); Iowa Ct.
Rule 2.5 (2020); Kan. Stat. Ann. § 22–3201 (2007); Md. Crim. Proc. Code
Ann. §§ 4–102, 4–103 (2018); Mich. Comp. Laws § 767.1 (1979); Mo. Const.,
Art. I, § 17; Mont. Const., Art. II, § 20(1); Neb. Rev. Stat. § 29–1601 (2016);
Nev. Const., Art. I, § 8; N. M. Const., Art. II, § 14; N. D. Rule Crim.
Proc. 7(a) (2018–2019); Okla. Const., Art. II, § 17; Ore. Const. (amended),

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157
Alito, J., dissenting
proach to the Hurtado question that the majority takes in
th
is case, the holding in that case could be called into
question.
The majority's only other reason for overruling Apodaca
is that it is inconsistent with related decisions and recent
legal developments. Ante, at 106–107; ante, at 112 (Soto-
mayor, J., concurring in part). I agree that Justice Powell's
view on incorporation is not in harmony with the bulk of our
case law, but the majority's point about “recent legal devel-
opments” is an exaggeration. No subsequent Sixth Amend-
ment decision has undercut the plurality. And while Justice
Powell's view on incorporation has been further isolated by
later cases holding that two additional provisions of the Bill
of Rights apply with full force to the States, see Timbs, 586
U. S., at 149 (Eighth Amendment's Excessive Fines Clause);
McDonald, supra, at 791 (plurality opinion) (Second Amend-
ment), the project of complete incorporation was nearly done
when Apodaca was handed down. See McDonald, supra,
at 765, n. 13.
While the majority worries that Apodaca is inconsistent
with our cases on incorporation, the majority ignores some-
thing far more important: the way in which Apodaca is inter-
twined with the body of our Sixth Amendment case law. As
I have explained, see supra, at 152, the Apodaca plurality's
reasoning was based on the same fundamental mode of anal-
ysis as that in Williams, 399 U. S. 78, which had held just
two years earlier that the Sixth Amendment did not consti-
tutionalize the common law's requirement that a jury have
12 members. Although only one State, Oregon, now permits
Art. VII, §§ 5(3)–(5); Pa. Const., Art. I, § 10 (providing that “[e]ach of the
several courts of common pleas may, with the approval of the Supreme
Court, provide for the initiation of criminal proceedings therein by infor-
mation”—a condition that has now been met in all counties); see also 42
Pa. Cons. Stat. § 8931 (2015); S. D. Const., Art. VI, § 10; Utah Const., Art.
I, § 13; Vt. Rule Crim. Proc. 7(a) (2018); Wash. Rev. Code § 10.37.015 (2019);
Wis. Stat. § 967.05 (2015–2016); Wyo. Stat. Ann. § 7–1–106(a) (2019).

158 RAMOS
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non-unanimous verdicts, many more allow six-person ju-
r
ies.
29
Repudiating the reasoning of Apodaca will almost
certainly prompt calls to overrule Williams.
C
Up to this point, I have discussed the majority's reasons
for overruling Apodaca, but that is only half the picture.
What convinces me that Apodaca should be retained are the
enormous reliance interests of Louisiana and Oregon. For
48 years, Louisiana and Oregon, trusting that Apodaca is
good law, have conducted thousands and thousands of trials
under rules allowing non-unanimous verdicts. Now, those
States face a potential tsunami of litigation on the jury-
unanimity issue.
At a minimum, all defendants whose cases are still on di-
rect appeal will presumably be entitled to a new trial if they
were convicted by a less-than-unanimous verdict and pre-
served the issue in the trial court. And at least in Oregon,
even if no objection was voiced at trial, defendants may be
able to challenge their convictions based on plain error. See
Ore. Rule App. Proc. 5.45(1), and n. 1 (2019); State v. Serrano,
355 Ore. 172, 179, 324 P. 3d 1274, 1280 (2014). Oregon as-
serts that more than a thousand defendants whose cases are
still on direct appeal may be able to challenge their convic-
tions if Apodaca is overruled. Brief for State of Oregon as
Amicus Curiae 12–13.
30
The State also reports that “[d]e-
fendants are arguing that an instruction allowing for non-
unanimous verdicts is a structural error that requires rever-
sal for all convictions, even for those for which the jury was
29
See Ariz. Rev. Stat. Ann. § 21–102 (2013); Conn. Gen. Stat. § 54–82;
Fla. Rule Crim. Proc. § 3.270 (2019); Ind. Code § 35–37–1–1(b)(2); Utah
Code § 78B–1–104 (2019).
30
The majority arrives at a different fgure based on the number of
felony jury trials in Oregon in 2018, see ante, at 108, and n. 68, but it does
not take 2019 into account. And since we do not know how many cases
remain on direct appeal, such calculations are unreliable.

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not polled or those for which the jury was unanimous.” Id.,
at
14.
Unimpressed by these potential consequences, the major-
ity notes that we “vacated and remanded nearly 800 deci-
sions” for resentencing after United States v. Booker, 543
U. S. 220 (2005), held that the Federal Sentencing Guidelines
are not mandatory. Ante, at 108. But the burden of resen-
tencing cannot be compared with the burden of retrying
cases. And while resentencing was possible in all the cases
affected by Booker, there is no guarantee that all the cases
affected by today's ruling can be retried. In some cases,
key witnesses may not be available, and it remains to be seen
whether the criminal justice systems of Oregon and Louisi-
ana have the resources to handle the volume of cases in
which convictions will be reversed.
These cases on direct review are only the beginning.
Prisoners whose direct appeals have ended will argue that
today's decision allows them to challenge their convictions
on collateral review, and if those claims succeed, the courts
of Louisiana and Oregon are almost sure to be overwhelmed.
The majority's response to this possibility is evasive. It
begins by hinting that today's decision will not apply on col-
lateral review under the framework adopted in Teague v.
Lane, 489 U. S. 288, 315 (1989) (plurality opinion). Under
Teague, “an old rule applies both on direct and collateral re-
view,” but if today's decision constitutes a new procedural
rule, prisoners will be able to rely on it in a collateral pro-
ceeding only if it is what we have termed a “watershed rule”
that implicates “the fundamental fairness and accuracy of the
criminal proceeding.” Whorton v. Bockting, 549 U. S. 406,
416 (2007). Noting that we have never found a new rule of
criminal procedure to qualify as “watershed,” the Court
hints that the decision in this case is likely to meet the
same fate.
But having feinted in this direction, the Court quickly
changes course and says that the application of today's deci-

160 RAMOS
v. LOUISIANA
Alito, J., dissenting
sion to prisoners whose appeals have ended should not con-
cer
n us. Ante, at 109. That question, we are told, will be
decided in a later case. Ibid.
The majority cannot have it both ways. As long as retro-
active application on collateral review remains a real possi-
bility, the crushing burden that this would entail cannot be
ignored. And while it is true that this Court has been chary
in recognizing new watershed rules, it is by no means clear
that Teague will preclude the application of today's decision
on collateral review.
Teague applies only to a “new rule,” and the positions
taken by some in the majority may lead to the conclusion
that the rule announced today is an old rule. Take the prop-
osition, adopted by three Members of the majority, that Apo-
daca was never a precedent. Those Justices, along with the
rest of the majority, take the position that our cases estab-
lished well before Apodaca both that the Sixth Amendment
requires unanimity, ante, at 92, and that it applies in the
same way in state and federal court, ante, at 94. Thus, if
Apodaca was never a precedent and did not disturb what had
previously been established, it may be argued that today's
decision does not impose a new rule but instead merely rec-
ognizes what the correct rule has been for many years.
Two other Justices in the majority acknowledge that Apo-
daca was a precedent and thus would presumably regard to-
day's decision as a “new rule,” but the question remains
whether today's decision qualifes as a “watershed rule.”
Justice Kavanaugh concludes that it does not and all but
decides—without briefng or argument—that the decision
will not apply retroactively on federal collateral review and
similarly that there will be no successful claims of ineffective
assistance of counsel for failing to challenge Apodaca. See
ante, at 129–131 (opinion concurring in part).
The remaining Justices in the majority, and those of us in
dissent, express no view on this question, but the majority's
depiction of the unanimity requirement as a hallowed right

Cite
as: 590 U. S. 83 (2020)
161
Alito, J., dissenting
that Louisiana and Oregon fouted for ignominious reasons
cer
tainly provides fuel for the argument that the rule an-
nounced today meets the test. And in Oregon, the State
most severely impacted by today's decision, watershed status
may not matter since the State Supreme Court has reserved
decision on whether state law gives prisoners a greater op-
portunity to invoke new precedents in state collateral pro-
ceedings. See Verduzco v. State, 357 Ore. 553, 574, 355 P. 3d
902, 914 (2015).
31
Whatever the ultimate resolution of the retroactivity ques-
tion, the reliance here is not only massive; it is concrete. Cf.
Dickerson v. United States, 530 U. S. 428, 443 (2000) (reliance
weighed heavily in favor of precedent simply because the
warnings in Miranda v. Arizona, 384 U. S. 436, had become
“part of our national culture”). In my view, it weighs deci-
sively against overruling Apodaca.
In reaching this conclusion, I do not disregard the inter-
ests of petitioner and others who were convicted by a less-
than-unanimous vote. It is not accurate to imply that these
defendants would have been spared conviction if unanimity
had been required. In many cases, if a unanimous vote had
been needed, the jury would have continued to deliberate
and the one or two holdouts might well have ultimately voted
to convict.
32
This is almost certainly the situation in Ore-
gon, where it is estimated that as many as two-thirds of all
criminal trials have ended with a non-unanimous verdict.
See Brief for State of Oregon as Amicus Curiae 12. It is
31
Under our case law, a State must give retroactive effect to any consti-
tutional decision that is retroactive under the standard in Teague v. Lane,
489 U. S. 288 (1989), but it may adopt a broader retroactivity rule. Mont-
gomery v. Louisiana, 577 U. S. 190, 199 (2016); Dan forth v. Minnesota,
552 U. S. 264, 275 (2008).
32
Studies show that when a supermajority votes for a verdict near the
beginning of deliberations, a unanimous verdict is usually reached. See
generally Devine, Clayton, Dunford, Seying, & Pryce, Jury Decision Mak-
ing: 45 Years of Empirical Research on Deliberating Groups, 7 Psychology,
Pub. Pol'y & L. 622, 690–707 (2001).

162 RAMOS
v. LOUISIANA
Alito, J., dissenting
impossible to believe that all these cases would have resulted
i
n mistrials if unanimity had been demanded. Instead, after
a vote of 11 to 1 or 10 to 2, it is likely that deliberations
would have continued and unanimity would have been
achieved.
Nevertheless, the plight of defendants convicted by non-
unanimous votes is important and cannot be overlooked, but
that alone cannot be dispositive of the stare decisis question.
Otherwise, stare decisis would never apply in a case in which
a criminal defendant challenges a precedent that led to
conviction.
D
The reliance in this case far outstrips that asserted in re-
cent cases in which past precedents were overruled. Last
Term, when we overturned two past decisions, there were
strenuous dissents voicing fears about the future of stare de-
cisis. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S.
230, 258–261 (2019) (Breyer, J., dissenting); Knick v. Town-
ship of Scott, 588 U. S. 180, 221–224 (2019) (Kagan, J., dis-
senting). Yet in neither of those cases was there reliance
like that present here.
In Franchise Tax Board, the dissent claimed only the airi-
est sort of reliance, the public's expectation that past deci-
sions would remain on the books. 587 U. S., at 260–261
(opinion of Breyer, J.). And in Knick, the dissent dis-
claimed any reliance at all. 588 U. S., at 223–224 (opinion of
Kagan, J.). The same was true the year before in South
Dakota v. Wayfair, Inc., 585 U. S. 162 (2018), where the dis-
sent did not contend that any legitimate reliance interests
weighed in favor of preserving the decision that the Court
overruled. Id., at 191 (opinion of Roberts, C. J.). And
our unanimous decision in Pearson v. Callahan, 555 U. S.
223, 233 (2009), found that no reliance interests were
involved.
In other cases overruling prior decisions, the dissents
claimed that reliance interests were at stake, but whatever

Cite
as: 590 U. S. 83 (2020)
163
Alito, J., dissenting
one may think about the weight of those interests, no one
can
argue that they are comparable to those in this case.
In Montejo v. Louisiana, 556 U. S. 778, 793–797 (2009), the
Court abrogated a prophylactic rule that had been adopted
in Michigan v. Jackson, 475 U. S. 625 (1986), to protect a
defendant's right to counsel during post-arraignment inter-
rogation. The dissent did not claim that any defendants had
relied on this rule, arguing instead that the public at large
had an interest “in knowing that counsel, once secured, may
be reasonably relied upon as a medium between the accused
and the power of the State.” Montejo, supra, at 809 (opin-
ion of Stevens, J.). This abstract interest, if it can be called
reliance in any proper sense of the term, is a far cry from
what is at stake here.
In Citizens United v. Federal Election Comm'n, 558 U. S.
310 (2010), where we overruled precedent allowing laws that
prohibited corporations' election-related speech, we found
that “[n]o serious reliance interests” were implicated, id., at
365, since the only reliance asserted by the dissent was the
time and effort put in by federal and state lawmakers in
adopting the provisions at issue, id., at 411–412 (Stevens, J.,
concurring in part and dissenting in part). In this case, by
contrast, what is at stake is not the time and effort of Louisi-
ana and Oregon lawmakers but a monumental litigation bur-
den and the potential inability to retry cases that might well
have ended with a unanimous verdict if that had been
required.
Finally, in Janus v. State, County, and Municipal Em-
ployees, 585 U. S. 878 (2018), where we overruled Abood v.
Detroit Bd. of Ed., 431 U. S. 209 (1977), we carefully consid-
ered and addressed the question of reliance, and whatever
one may think about the extent of the legitimate reliance in
that case, it is not in the same league as that present here.
Abood had held that a public sector employer may require
non-union members to pay a portion of the dues collected
from union members. 431 U. S., at 235–236. In overruling

164 RAMOS
v. LOUISIANA
Alito, J., dissenting
that decision, we acknowledged that existing labor contracts
might
have been negotiated in reliance on Abood, but we
noted that most labor contracts are of short duration, that
unions had been on notice for some time that the Court had
serious misgivings about Abood, and that unions could have
insisted on contractual provisions to protect their interests
if Abood later fell. Janus, supra, at 926–928.
33
By striking down a precedent upon which there has been
massive and entirely reasonable reliance, the majority sets
an important precedent about stare decisis. I assume that
those in the majority will apply the same standard in fu-
ture cases.
***
Under the approach to stare decisis that we have taken
in recent years, Apodaca should not be overruled. I would
therefore affrm the judgment below, and I respectfully
dissent.
33
The reliance in this case also far exceeds that in Arizona v. Gant, 556
U. S. 332 (2009), where the Court effectively overruled a decision, New
York v. Belton, 453 U. S. 454 (1981), that allowed a police offcer to search
the entire passenger compartment of a car if the offcer had probable cause
to arrest the driver or a passenger. 556 U. S., at 335. Police depart-
ments had trained offcers in reliance on the Belton rule, see Gant, supra,
at 358–360 (Alito, J., dissenting), but the burden of retraining cannot
compare with conducting a large number of retrials and potentially releas-
ing defendants who cannot be retried due to post-trial events.

OCTOBER
TERM, 2019
165
Syllabus
COUNTY OF MAUI, HAWAII v. HAWAII WILDLIFE
FUND
et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 18–260. Argued November 6, 2019—Decided April 23, 2020
The Clean Water Act forbids “any addition” of any pollutant from “any
point source” to “navigable waters” without an appropriate permit from
the Environmental Protection Agency (EPA). §§ 301(a), 502(12), 86
Stat. 844, 886. The Act defnes “pollutant” broadly, § 502(6); defnes a
“point source” as “ `any discernible, confned and discrete conveyance . . .
from which pollutants are or may be discharged,' ” including, e. g., any
“ `container,' ” “ `pipe, ditch, channel, tunnel, conduit,' ” or “ `well,' ”
§ 502(14); and defnes the term “discharge of a pollutant” as “ `any addi-
tion of any pollutant to navigable waters [including navigable streams,
rivers, the ocean, or coastal waters] from any point source,' ” § 502(12).
It then uses those terms in making “unlawful” “ `the discharge of any
pollutant by any person' ” without an appropriate permit. § 301.
Petitioner County of Maui's wastewater reclamation facility collects
sewage from the surrounding area, partially treats it, and each day
pumps around 4 million gallons of treated water into the ground through
four wells. This effuent then travels about a half mile, through ground-
water, to the Pacifc Ocean. Respondent environmental groups brought
a citizens' Clean Water Act suit, alleging that Maui was “discharg[ing]”
a “pollutant” to “navigable waters” without the required permit. The
District Court found that the discharge from Maui's wells into the
nearby groundwater was “functionally one into navigable water,” 24
F. Supp. 3d 980, 998, and granted summary judgment to the environmen-
tal groups. The Ninth Circuit affrmed, stating that a permit is re-
quired when “pollutants are fairly traceable from the point source to a
navigable water.” 886 F. 3d 737, 749.
Held: The statutory provisions at issue require a permit when there is a
direct discharge from a point source into navigable waters or when
there is the functional equivalent of a direct discharge. Pp. 172–186.
(a) Statutory context limits the reach of the phrase “from any point
source” to a range of circumstances narrower than that which the Ninth
Circuit's “fairly traceable” interpretation suggests. At the same time,
it is signifcantly broader than the total exclusion of all discharges
through groundwater, as urged by Maui and by the Solicitor General as
amicus curiae. Pp. 172–173.

166 COUNTY
OF MAUI v. HAWAII WILDLIFE FUND
Syllabus
(b) The Ninth Circuit's “fairly traceable” limitation could allow EPA
to
assert permitting authority over the release of pollutants that reach
navigable waters many years after their release. But Congress did not
intend to provide EPA with such broad authority. First, to interpret
“from” so broadly might require a permit in unexpected circumstances,
such as, e. g., the 100-year migration of pollutants through 250 miles of
groundwater to a river. Second, the statute's structure indicates that,
as to groundwater pollution and nonpoint source pollution, Congress left
substantial responsibility and autonomy to the States and did not give
EPA authority that could seriously interfere with this state responsibil-
ity. Third, the Act's legislative history strongly supports the conclusion
that the permitting provision does not extend so far. Finally, long-
standing regulatory practice shows that EPA has successfully applied
the permitting provision to pollution discharges from point sources that
reached navigable waters through groundwater using a narrower inter-
pretation than that of the Ninth Circuit. Pp. 173–178.
(c) Maui, the Government, and the two dissents argue for interpreta-
tions that, in light of the statute's language, structure, and purposes,
are also too extreme. Pp. 178–183.
(1) Maui and the Solicitor General argue that the statute's permit-
ting requirement does not apply if a pollutant, having emerged from a
“point source,” must travel through any amount of groundwater before
reaching navigable waters. That narrow interpretation would risk se-
rious interference with EPA's ability to regulate point source dis-
charges, and Congress would not have intended to create such a large
and obvious loophole in one of the Clean Water Act's key regulatory
innovations. Pp. 178–179.
(2) Reading “from” in the phrase “from any point source” together
with “conveyance” in the point source defnition “any . . . conveyance,”
Maui argues that the meaning of “from any point source” is not about
where the pollution originated, but about how it got there. Thus, Maui
claims, a permit is required only if a point source ultimately delivers
the pollutant to navigable waters. By contrast, if a pollutant travels
through groundwater, then the groundwater is the conveyance and no
permit is required. But Maui's defnition of “from” as connoting a
means does not ft in context. Coupling “from” with “to” is strong evi-
dence that Congress was referring to a destination (“navigable waters”)
and an origin (“any point source”). That Maui's reading would create
a serious loophole in the permitting regime also indicates that it is un-
reasonable. P. 179.
(3) The Solicitor General argues that the proper interpretation of
the statute is the one refected in EPA's recent Interpretive Statement,
namely, that “all releases of pollutants to groundwater” are excluded

Cite
as: 590 U. S. 165 (2020)
167
Syllabus
from the scope of the permitting program, “even where pollutants are
con
veyed to jurisdictional surface waters via groundwater.” 84 Fed.
Reg. 16810, 16811. That reading, which would open a loophole allowing
easy evasion of the statutory provision's basic purposes, is neither per-
suasive nor reasonable. EPA is correct that Congress did not require
a permit for all discharges to groundwater, and it did authorize study
and funding related to groundwater pollution. But the most that the
study and funding provisions show is that Congress thought that the
problem of pollution in groundwater would primarily be addressed by
the States or perhaps by other federal statutes. EPA's new interpreta-
tion is also diffcult to reconcile with the statute's reference to “any
addition” of a pollutant to navigable waters; with the statute's inclusion
of “wells” in the “point source” defnition, since wells would ordinarily
discharge pollutants through groundwater; and with statutory provi-
sions that allow EPA to delegate its permitting authority to a State only
if the State, inter alia, provides “ `adequate authority' ” to “ `control the
disposal of pollutants into wells,' ” § 402(b). Pp. 179–181.
(4) Perhaps, as the dissents suggest, the statute's language could
be narrowed by reading the statute to refer only to the pollutant's im-
mediate origin, but there is no linguistic basis for this limitation.
Pp. 181–183.
(d) The statute's words refect Congress' basic aim to provide federal
regulation of identifable sources of pollutants entering navigable waters
without undermining the States' longstanding regulatory authority over
land and groundwater. The reading of the statute that best captures
Congress' meaning, refected in the statute's words, structure, and pur-
poses, is that a permit is required when there is a discharge from a point
source directly into navigable waters or when there is the functional
equivalent of a direct discharge. Many factors may be relevant to de-
termining whether a particular discharge is the functional equivalent of
one directly into navigable waters. Time and distance will be the most
important factors in most cases, but other relevant factors may include,
e. g., the nature of the material through which the pollutant travels and
the extent to which the pollutant is diluted or chemically changed as it
travels. Courts will provide additional guidance through decisions in
individual cases. The underlying statutory objectives can also provide
guidance, and EPA can provide administrative guidance. Although this
interpretation does not present as clear a line as the other interpreta-
tions proffered, the EPA has applied the permitting provision to some
discharges through groundwater for over 30 years, with no evidence of
inadministrability or an unmanageable expansion in the statute's scope.
Pp. 183–186.
886 F. 3d 737, vacated and remanded.

168 COUNTY
OF MAUI v. HAWAII WILDLIFE FUND
Syllabus
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and
Ginsburg, Sotomayor, Kagan, and Kavanaugh, JJ., joined. Kava-
naugh, J., fled a concurring opinion, post, p. 187. Thomas, J., fled a
dissenting opinion, in which Gorsuch, J., joined, post, p. 188. Alito, J.,
fled a dissenting opinion, post, p. 195.
Elbert Lin argued the cause for petitioner. With him on
the briefs were Michael R. Shebelskie, Colleen P. Doyle,
Moana M. Lutey, and Richelle M. Thomson.
Deputy Solicitor General Stewart argued the cause for the
United States as amicus curiae urging reversal. With him
on the brief were Solicitor General Francisco, Deputy As-
sistant Attorney General Grant, Allon Kedem, and Matthew
Z. Leopold.
David L. Henkin argued the cause for respondents. With
him on the brief were Janette K. Brimmer, Scott L. Nelson,
and Amanda C. Leiter.*
*Briefs of amici curiae urging reversal were fled for the State of West
Virginia et al. by Patrick Morrisey, Attorney General of West Virginia,
Lindsay S. See, Solicitor General, and Zachary A. Viglianco, Assistant
Attorney General, and by the Attorneys General for their respective
States as follows: Steve Marshall of Alabama, Kevin G. Clarkson of
Alaska, Leslie Rutledge of Arkansas, Ashley Moody of Florida, Christo-
pher M. Carr of Georgia, Lawrence G. Wasden of Idaho, Curtis T. Hill,
Jr., of Indiana, Derek Schmidt of Kansas, Andy Beshear of Kentucky, Jeff
Landry of Louisiana, Eric Schmitt of Missouri, Tim Fox of Montana, Doug
Peterson of Nebraska, Dave Yost of Ohio, Mike Hunter of Oklahoma, Alan
Wilson of South Carolina, Ken Paxton of Texas, Sean Reyes of Utah,
and Bridget Hill of Wyoming; for Agricultural Business Organizations by
Timothy S. Bishop, Michael B. Kimberly, Ellen B. Steen, Travis Cush-
man, Michael C. Formica, Scott Yager, Rachel Lattimore, and Kyle Liske;
for the Chamber of Commerce of the United States of America by Aaron
M. Streett and J. Mark Little; for the Edison Electric Institute et al. by
Thomas A. Lorenzen, David Y. Chung, Amanda Shafer Berman, Richard
Moskowitz, Stacy R. Linden, Peter C. Tolsdorf, and Rae Cronmiller;
for Energy Transfer Partners, L. P., by Miguel A. Estrada, William S.
Scherman, David Debold, and Matthew S. Rozen; for the Federal Water
Quality Coalition by A. Bruce White; for the Florida Water Environment
Association-Utility Council et al. by Gary V. Perko, Mohammad O. Jazil,
and Kristen C. Diot; for Kinder Morgan Energy Partners, L. P., et al. by

Cite
as: 590 U. S. 165 (2020)
169
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
The
Clean Water Act forbids the “addition” of any pollut-
ant from a “point source” to “navigable waters” without
the appropriate permit from the Environmental Protec-
tion Agency (EPA). Federal Water Pollution Control Act,
Paul D. Clement, Erin E. Murphy, and C. Harker Rhodes IV; for the
National Association of Clean Water Agencies et al. by Richard S. Davis,
Andrew C. Silton, Timothy M. Sullivan, Zachary W. Carter, and Dennis
J. Herrera; for the National Association of Home Builders of the United
States by Thomas J. Ward and Jeffrey B. Augello; for the National Confer-
ence of State Legislatures et al. by J. G. Andre Monette, Lisa Soronen,
and Steven W. Strack; for the National Federation of Independent Busi-
ness Small Business Legal Center et al. by Robert Henneke, Theodore
Hadzi-Antich, and Ryan D. Walters; for the Pacifc Legal Foundation by
Glenn E. Roper and Damien M. Schiff; for United States Senators by
Sean Marotta and Heather A. Briggs; for the Washington Legal Founda-
tion et al. by Richard A. Samp; for Water Systems Council et al. by Jesse
J. Richardson, Jr.; and for Wychmere Shores Condominium Trust et al.
by Kevin M. McGinty.
Briefs of amici curiae urging affrmance were fled for the State of
Maryland by Brian E. Frosh, Attorney General of Maryland, and Joshua
M. Segal and Steven J. Goldstein, Special Assistant Attorneys General,
and by the Attorneys General for their respective jurisdictions as follows:
Xavier Becerra of California, William Tong of Connecticut, Karl A. Ra-
cine of the District of Columbia, Kwame Raoul of Illinois, Aaron M. Frey
of Maine, Maura Healey of Massachusetts, Dana Nessel of Michigan,
Gurbir S. Grewal of New Jersey, Hector Balderas of New Mexico, Ellen
F. Rosenblum of Oregon, Peter F. Neronha of Rhode Island, Thomas J.
Donovan, Jr., of Vermont, and Bob Ferguson of Washington; for Anderson
County, South Carolina, et al. by Cale Jaffe; for Aquatic Scientists et al.
by Royal C. Gardner, Erin Okuno, Kathleen E. Gardner, Steph Tai, and
Christopher W. Greer; for the Constitutional Accountability Center by
Elizabeth B. Wydra and Brianne J. Gorod; for Craft Brewers by Richard
B. Kendall; for Fond du Lac Band of Lake Superior Chippewa by Elise
L. Larson and Kevin S. Reuther; for Former Administrators of the U. S.
Environmental Protection Agency by Sarah E. Harrington and Erica
Oleszczuk Evans; for Former EPA Offcials by Shaun A. Goho; for Law
Professors by Stephen E. Roady, Michelle B. Nowlin, and Shannon M.
Arata; for Trout Unlimited by Roy T. Englert, Jr., and Jennifer S. Win-
dom; and for Upstate Forever et al. by Michael K. Kellogg, Sean A. Lev,
Frank S. Holleman III, Nicholas S. Torrey, and Leslie Griffth.

170 COUNTY
OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
§§ 301(a), 502(12)(A), as amended by the Federal Water Pol-
luti
on Control Act Amendments of 1972 (Clean Water Act)
§ 2, 86 Stat. 844, 886, 33 U. S. C. §§ 1311(a), 1362(12)(A). The
question presented here is whether the Act “requires a per-
mit when pollutants originate from a point source but are
conveyed to navigable waters by a nonpoint source,” here,
“groundwater.” Pet. for Cert. i. Suppose, for example,
that a sewage treatment plant discharges polluted water into
the ground where it mixes with groundwater, which, in turn,
fows into a navigable river, or perhaps the ocean. Must the
plant's owner seek an EPA permit before emitting the pollut-
ant? We conclude that the statutory provisions at issue re-
quire a permit if the addition of the pollutants through
groundwater is the functional equivalent of a direct dis-
charge from the point source into navigable waters.
I
A
Congress' purpose as refected in the language of the Clean
Water Act is to “ `restore and maintain the . . . integrity of
the Nation's waters,' ” § 101(a), 86 Stat. 816. Prior to the
Act, Federal and State Governments regulated water pollu-
tion in large part by setting water quality standards. See
EPA v. California ex rel. State Water Resources Control
Bd., 426 U. S. 200, 202–203 (1976). The Act restructures fed-
eral regulation by insisting that a person wishing to dis-
charge any pollution into navigable waters frst obtain EPA's
permission to do so. See id., at 203–205; Milwaukee v. Illi-
nois, 451 U. S. 304, 310–311 (1981).
The Act's provisions use specifc defnitional language to
ach ieve th is resu lt. First, the Act defi nes “pollut ant”
broadly, including in its defnition, for example, any solid
waste, incinerator residue, “ ` heat, ' ” “ `discarded equip-
ment,' ” or sand (among many other things). § 502(6), 86
Stat. 886. Second, the Act defnes a “point source” as “ `any
discernible, confned and discrete conveyance . . . from which

Cite
as: 590 U. S. 165 (2020)
171
Opinion of the Court
pollutants are or may be discharged,' ” including, for exam-
ple
, any “ `container,' ” “ `pipe, ditch, channel, tunnel, con-
duit,' ” or “ `well.' ” § 502(14), id., at 887. Third, it defnes
the term “discharge of a pollutant” as “ `any addition of any
pollutant to navigable waters [including navigable streams,
rivers, the ocean, or coastal waters] from any point source.' ”
§ 502(12), id., at 886.
The Act then sets forth a statutory provision that, using
these terms, broadly states that (with certain exceptions)
“ `the discharge of any pollutant by any person' ” without an
appropriate permit “ `shall be unlawful.' ” § 301, id., at 844.
The question here, as we have said, is whether, or how, this
statutory language applies to a pollutant that reaches navi-
gable waters only after it leaves a “point source” and then
travels through groundwater before reaching navigable wa-
ters. In such an instance, has there been a “discharge of a
pollutant,” that is, has there been “any addition of any pollut-
ant to navigable waters from any point source?”
B
The petitioner, the County of Maui, operates a wastewater
reclamation facility on the island of Maui, Hawaii. The facil-
ity collects sewage from the surrounding area, partially
treats it, and pumps the treated water through four wells
hundreds of feet underground. This effuent, amounting to
about 4 million gallons each day, then travels a further half
mile or so, through groundwater, to the ocean.
In 2012, several environmental groups, the respondents
here, brought this citizens' Clean Water Act lawsuit against
Maui. See § 505(a), id., at 888. They claimed that Maui was
“discharg[ing]” a “pollutant” to “navigable waters,” namely,
the Pacifc Ocean, without the permit required by the Clean
Water Act. The District Court, relying in part upon a de-
tailed study of the discharges, found that a considerable
amount of effuent from the wells ended up in the ocean (a
navigable water). It wrote that, because the “path to the

172 COUNTY
OF MAUI v. HAWAII WILDLIFE FUND
Opinion of the Court
ocean is clearly ascertainable,” the discharge from Maui's
wel
ls into the nearby groundwater was “functionally one into
navigable water.” 24 F. Supp. 3d 980, 998 (Haw. 2014).
And it granted summary judgment in favor of the environ-
mental groups. See id., at 1005.
The Ninth Circuit affrmed the District Court, but it de-
scribed the relevant statutory standard somewhat differ-
ently. The appeals court wrote that a permit is required
when “the pollutants are fairly traceable from the point
source to a navigable water such that the discharge is the
functional equivalent of a discharge into the navigable
water.” 886 F. 3d 737, 749 (2018) (emphasis added). The
court left “for another day the task of determining when,
if ever, the connection between a point source and a
navigable water is too tenuous to support liability . . . .”
Ibid.
Maui petitioned for certiorari. In light of the differences
in the standards adopted by the different Courts of Appeals,
we granted the petition. Compare, e. g., 886 F. 3d, at 749
(“fairly traceable”), with Upstate Forever v. Kinder Morgan
Energy Partners, L. P., 887 F. 3d 637, 651 (CA4 2018) (“direct
hydrological connection”), and Kentucky Waterways Alli-
ance v. Kentucky Util. Co., 905 F. 3d 925, 932–938 (CA6 2018)
(discharges through groundwater are excluded from the Act's
permitting requirements).
II
The linguistic question here concerns the statutory word
“from.” Is pollution that reaches navigable waters only
through groundwater pollution that is “from” a point source,
as the statute uses the word? The word “from” is broad in
scope, but context often imposes limitations. “Finland,” for
example, is often not the right kind of answer to the ques-
tion, “Where have you come from?” even if long ago you were
born there.
The parties here disagree dramatically about the scope of
the word “from” in the present context. The environmental

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groups, the respondents, basically adopt the Ninth Circuit's
v
iew—that the permitting requirement applies so long as the
pollutant is “fairly traceable” to a point source even if it trav-
eled long and far (through groundwater) before it reached
navigable waters. They add that the release from the point
source must be “a proximate cause of the addition of pollut-
ants to navigable waters.” Brief for Respondents 20.
Maui, on the other hand, argues that the statute creates
a “bright-line test.” Brief for Petitioner 27–28. A point
source or series of point sources must be “the means of de-
livering pollutants to navigable waters.” Id., at 28. They
add that, if “at least one nonpoint source (e. g., unconfned
rainwater runoff or groundwater)” lies “between the point
source and the navigable water,” then the permit require-
ment “does not apply.” Id., at 54. A pollutant is “from” a
point source only if a point source is the last “conveyance”
that conducted the pollutant to navigable waters.
The Solicitor General, as amicus curiae, supports Maui, at
least in respect to groundwater. Reiterating the position
taken in a recent EPA “Interpretive Statement,” see 84 Fed.
Reg. 16810 (2019), he argues that, given the Act's structure
and history, “a release of pollutants to groundwater is not
subject to” the Act's permitting requirement “even if the pol-
lutants subsequently migrate to jurisdictional surface wa-
ters,” such as the ocean. Brief for United States as Amicus
Curiae 12 (capitalization omitted).
We agree that statutory context limits the reach of the
statutory phrase “from any point source” to a range of cir-
cumstances narrower than that which the Ninth Circuit's
interpretation suggests. At the same time, it is signif-
cantly broader than the total exclusion of all discharges
through groundwater described by Maui and the Solicitor
General.
III
Virtually all water, polluted or not, eventually makes its
way to navigable water. This is just as true for ground-

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water. See generally 2 Van Nostrand's Scientifc Encyclope-
dia
2600 (10th ed. 2008) (defning “Hydrology”). Given the
power of modern science, the Ninth Circuit's limitation,
“fairly traceable,” may well allow EPA to assert permitting
authority over the release of pollutants that reach navigable
waters many years after their release (say, from a well or
pipe or compost heap) and in highly diluted forms. See, e. g.,
Brief for Aquatic Scientists et al. as Amici Curiae 13–28.
The respondents suggest that the standard can be nar-
rowed by adding a “proximate cause” requirement. That is,
to fall within the permitting provision, the discharge from a
point source must “proximately cause” the pollutants' even-
tual addition to navigable waters. But the term “proximate
cause” derives from general tort law, and it takes on its spe-
cifc content based primarily on “policy” considerations. See
CSX Transp., Inc. v. McBride, 564 U. S. 685, 701 (2011) (plu-
rality opinion). In the context of water pollution, we do not
see how it signifcantly narrows the statute beyond the
words “fairly traceable” themselves.
Our view is that Congress did not intend the point source-
permitting requirement to provide EPA with such broad au-
thority as the Ninth Circuit's narrow focus on traceability
would allow. First, to interpret the word “from” in this lit-
eral way would require a permit in surprising, even bizarre,
circumstances, such as for pollutants carried to navigable
waters on a bird's feathers, or, to mention more mundane
instances, the 100-year migration of pollutants through 250
miles of groundwater to a river.
Second, and perhaps most important, the structure of the
statute indicates that, as to groundwater pollution and non-
point source pollution, Congress intended to leave substan-
tial responsibility and autonomy to the States. See, e. g.,
§ 101(b), 86 Stat. 816 (stating Congress' purpose in this re-
gard). Much water pollution does not come from a readily
identifable source. See 3 Van Nostrand's Scientifc Encyclo-
pedia, at 5801 (defning “Water Pollution”). Rainwater, for

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example, can carry pollutants (say, as might otherwise collect
on
a roadway); it can pollute groundwater, and pollution col-
lected by unchanneled rainwater runoff is not ordinarily con-
sidered point source pollution. Over many decades, and
with federal encouragement, the States have developed
methods of regulating nonpoint source pollution through
water quality standards, and otherwise. See, e. g., Nonpoint
Source Program, Annual Report (California) 6 (2016–2017)
(discussing state timberland management programs to ad-
dress addition of sediment-pollutants to navigable waters);
id., at 10–11 (discussing regulations of vineyards to control
water pollution); id., at 17–19 (discussing livestock grazing
management, including utilization ratios and time restric-
tions); Nonpoint Source Management Program, Annual Re-
port (Maine) 8–10 (2018) (discussing installation of livestock
fencing and planting of vegetation to reduce nonpoint source
pollution); Oklahoma's Nonpoint Source Management Pro-
gram, Annual Report 5, 14 (2017) (discussing program to
encourage voluntary no-till farming to reduce sediment
pollution).
The Act envisions EPA's role in managing nonpoint source
pollution and groundwater pollution as limited to studying
the issue, sharing information with and collecting informa-
tion from the States, and issuing monetary grants. See
§§ 105, 208, 86 Stat. 825, 839; see also Water Quality Act of
1987, § 316, 101 Stat. 52 (establishing Nonpoint Source Man-
agement Programs). Although the Act grants EPA specifc
authority to regulate certain point source pollution (it can
also delegate some of this authority to the States acting
under EPA supervision, see § 402(b), 86 Stat. 880), these per-
mitting provisions refer to “point sources” and “navigable
waters,” and say nothing at all about nonpoint source regula-
tion or groundwater regulation. We must doubt that Con-
gress intended to give EPA the authority to apply the word
“from” in a way that could interfere as seriously with States'
traditional regulatory authority—authority the Act pre-

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Opinion of the Court
serves and promotes—as the Ninth Circuit's “fairly trace-
able”
test would.
Third, those who look to legislative history to help inter-
pret a statute will fnd that this Act's history strongly sup-
ports our conclusion that the permitting provision does not
extend so far. Fifty years ago, when Congress was consid-
ering the bills that became the Clean Water Act, William
Ruckelshaus, the frst EPA Administrator, asked Congress
to grant EPA authority over “ground waters” to “assure that
we have control over the water table . . . so we can . . .
maintai[n] a control over all the sources of pollution, be they
discharged directly into any stream or through the ground
water table. ” Water Pollution Control Legislation–1971
(Proposed Amendments to Existing Legislation): Hearings
before the House Committee on Public Works, 92d Cong.,
1st Sess., 230 (1971). Representative Les Aspin similarly
pointed out that there were “conspicuou[s]” references to
groundwater in all sections of the bill except the permitting
section at issue here. Water Pollution Control Legislation–
1971: Hearings before the House Committee on Public Works
on H. R. 11896 and H. R. 11895, 92d Cong., 1st Sess., 727
(1971). The Senate Committee on Public Works “recog-
nize[d] the essential link between ground and surface wa-
ters.” S. Rep. No. 92–414, p. 73 (1971).
But Congress did not accept these requests for general
EPA authority over groundwater. It rejected Representa-
tive Aspin's amendment that would have extended the per-
mitting provision to groundwater. Instead, Congress pro-
vided a set of more specifc groundwater-related measures
such as those requiring States to maintain “affrmative con-
trols over the injection or placement in wells” of “any pollut-
ants that may affect ground water.” Ibid. These specifc
state-related programs were, in the words of the Senate Pub-
lic Works Committee, “designed to protect ground waters
and eliminate the use of deep well disposal as an uncontrolled
alternative to toxic and pollution control.” Ibid. The up-

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Opinion of the Court
shot is that Congress was fully aware of the need to address
groundwater
pollution, but it satisfed that need through
a variety of state-specifc controls. Congress left general
groundwater regulatory authority to the States; its failure
to include groundwater in the general EPA permitting provi-
sion was deliberate.
Finally, longstanding regulatory practice undermines the
Ninth Circuit's broad interpretation of the statute. EPA it-
self for many years has applied the permitting provision to
pollution discharges from point sources that reached naviga-
ble waters only after traveling through groundwater. See,
e. g., United States Steel Corp. v. Train, 556 F. 2d 822, 832
(CA7 1977) (permit for “deep waste-injection well” on the
shore of navigable waters). But, in doing so, EPA followed
a narrower interpretation than that of the Ninth Circuit.
See, e. g., In re Bethlehem Steel Corp., 2 E. A. D. 715, 718
(EAB 1989) (Act's permitting requirement applies only to in-
jection wells “that inject into ground water with a physically
and temporally direct hydrologic connection to surface
water”). EPA has opposed applying the Act's permitting
requirements to discharges that reach groundwater only
after lengthy periods. See McClellan Ecological Seepage
Situation (MESS) v. Cheney, 763 F. Supp. 431, 437 (ED Cal.
1989) (United States argued that permitting provisions do
not apply when it would take “literally dozens, and perhaps
hundreds, of years for any pollutants” to reach navigable wa-
ters); Greater Yellowstone Coalition v. Larson, 641 F. Supp.
2d 1120, 1139 (Idaho 2009) (same in respect to instances
where it would take “between 60 and 420 years” for pollut-
ants to travel “one to four miles” through groundwater be-
fore reaching navigable waters). Indeed, in this very case
(prior to its recent Interpretive Statement, see infra, at 180–
181), EPA asked the Ninth Circuit to apply a more limited
“direct hydrological connection” test. See Brief for United
States as Amicus Curiae in No. 15–17447 (CA9), pp. 13–20.
The Ninth Circuit did not accept this suggestion.

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We do not defer here to EPA's interpretation of the statute
embodied
in this practice. Indeed, EPA itself has changed
its mind about the meaning of the statutory provision. See
infra, at 180–181. But this history, by showing that a com-
paratively narrow view of the statute is administratively
workable, offers some additional support for the view that
Congress did not intend as broad a delegation of regulatory
authority as the Ninth Circuit test would allow.
As we have said, the specifc meaning of the word “from”
necessarily draws its meaning from context. The apparent
breadth of the Ninth Circuit's “fairly traceable” approach is
inconsistent with the context we have just described.
IV
A
Maui and the Solicitor General argue that the statute's
permitting requirement does not apply if a pollutant, having
emerged from a “point source,” must travel through any
amount of groundwater before reaching navigable waters.
That interpretation is too narrow, for it would risk serious
interference with EPA's ability to regulate ordinary point
source discharges.
Consider a pipe that spews pollution directly into coastal
waters. There is an “addition of ” a “pollutant to navigable
waters from [a] point source.” Hence, a permit is required.
But Maui and the Government read the permitting require-
ment not to apply if there is any amount of groundwater
between the end of the pipe and the edge of the navigable
water. See Tr. of Oral Arg. 5–6, 24–25. If that is the cor-
rect interpretation of the statute, then why could not the
pipe's owner, seeking to avoid the permit requirement, sim-
ply move the pipe back, perhaps only a few yards, so that
the pollution must travel through at least some groundwater
before reaching the sea? Cf. Brief for State of Maryland
et al. as Amici Curiae 9, n. 4. We do not see how Congress
could have intended to create such a large and obvious loop-

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Opinion of the Court
hole in one of the key regulatory innovations of the Clean
W
ater Act. Cf. California ex rel. State Water Resources
Control Bd., 426 U. S., at 202–204 (basic purpose of Clean
Water Act is to regulate pollution at its source); The Emily,
9 Wheat. 381, 390 (1824) (rejecting an interpretation that
would facilitate “evasion of the law”).
B
Maui argues that the statute's language requires its read-
ing. That language requires a permit for a “discharge.” A
“discharge” is “any addition” of a pollutant to navigable wa-
ters “from any point source.” And a “point source” is “any
discernible, confned and discrete conveyance” (such as a
pipe, ditch, well, etc.). Reading “from” and “conveyance” to-
gether, Maui argues that the statutory meaning of “from any
point source” is not about where the pollution originated, but
about how it got there. Under what Maui calls the means-
of-delivery test, a permit is required only if a point source
itself ultimately delivers the pollutant to navigable waters.
Under this view, if the pollutant must travel through ground-
water to reach navigable waters, then it is the groundwater,
not the pipe, that is the conveyance.
Congress sometimes adopts less common meanings of com-
mon words, but this esoteric defnition of “from,” as connot-
ing a means, does not remotely ft in this context. The stat-
ute couples the word “from” with the word “to”—strong
evidence that Congress was referring to a destination (“navi-
gable waters”) and an origin (“any point source”). Further
underscoring that Congress intended this everyday meaning
is that the object of “from” is a “point source”—a source,
again, connoting an origin. That Maui's proffered interpre-
tation would also create a serious loophole in the permitting
regime also indicates it is an unreasonable one.
C
The Solicitor General agrees that, as a general matter, the
permitting requirement applies to at least some additions of

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pollutants to navigable waters that come indirectly from
poi
nt sources. See Brief for United States as Amicus Cu-
riae 33–35. But the Solicitor General argues that the
proper interpretation of the statute is the one refected in
EPA's recent Interpretive Statement. After receiving more
than 50,000 comments from the public, and after the Ninth
Circuit released its opinion in this case, EPA wrote that “the
best, if not the only, reading ” of the statutory provisions is
that “all releases of pollutants to groundwater” are excluded
from the scope of the permitting program, “even where pol-
lutants are conveyed to jurisdictional surface waters via
groundwater.” 84 Fed. Reg. 16810, 16811.
Neither the Solicitor General nor any party has asked us
to give what the Court has referred to as Chevron deference
to EPA's interpretation of the statute. See Chevron U. S. A.
Inc. v. Natural Resources Defense Council, Inc., 467 U. S.
837, 844 (1984). Even so, we often pay particular attention
to an agency's views in light of the agency's expertise in a
given area, its knowledge gained through practical experi-
ence, and its familiarity with the interpretive demands of
administrative need. See United States v. Mead Corp., 533
U. S. 218, 234–235 (2001); Skidmore v. Swift & Co., 323 U. S.
134, 139–140 (1944). But here, as we have explained, to fol-
low EPA's reading would open a loophole allowing easy eva-
sion of the statutory provision's basic purposes. Such an in-
terpretation is neither persuasive nor reasonable.
EPA correctly points out that Congress did not require a
permit for all discharges to groundwater; rather, Congress
authorized study and funding related to groundwater pollu-
tion. See Brief for United States as Amicus Curiae 15–19.
But there is quite a gap between “not all” and “none.” The
statutory text itself alludes to no exception for discharges
through groundwater. These separate provisions for study
and funding that EPA points to would be a “surprisingly
indirect route” to convey “an important and easily expressed
message”—that the permit requirement simply does not

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Opinion of the Court
apply if the pollutants travel through groundwater. Land-
gra
f v. USI Film Products, 511 U. S. 244, 262 (1994). In
truth, the most these provisions show is that Congress
thought that the problem of groundwater pollution, as dis-
tinct from navigable water pollution, would primarily be ad-
dressed by the States or perhaps by other federal statutes.
EPA's new interpretation is also diffcult to reconcile with
the statute's reference to “any addition” of a pollutant to
navigable waters. Cf. Milwaukee, 451 U. S., at 318 (“Every
point source discharge is prohibited unless covered by a per-
mit” (footnote omitted)). It is diffcult to reconcile EPA's
interpretation with the statute's inclusion of “wells” in the
defnition of “point source,” for wells most ordinarily would
discharge pollutants through groundwater. And it is diff-
cult to reconcile EPA's interpretation with the statutory pro-
visions that allow EPA to delegate its permitting authority
to a State only if the State (among other things) provides
“ `adequate authority' ” to “ `control the disposal of pollutants
into wells.' ” § 402(b), 86 Stat. 881. What need would there
be for such a proviso if the federal permitting program the
State replaces did not include such discharges (from wells
through groundwater) in the frst place?
In short, EPA's oblique argument about the statute's refer-
ences to groundwater cannot overcome the statute's struc-
ture, its purposes, or the text of the provisions that actu-
ally govern.
D
Perhaps, as the two dissents suggest, the language could
be narrowed to similar effect by reading the statute to refer
only to the pollutant's immediate origin. See post, at 190
(opinion of Thomas, J.); post, at 202 (opinion of Alito, J.). But
there is no linguistic basis here to so limit the statute in that
way. Again, whether that is the correct reading turns on
context. Justice Thomas insists that in the case of a dis-
charge through groundwater, the pollutants are added “from
the groundwater.” Post, at 190. Indeed, but that does not

182 COUNTY
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Opinion of the Court
mean they are not also “from the point source.” Ibid.
W
hen John comes to the hotel, John might have come from
the train station, from Baltimore, from Europe, from any two
of those three places, or from all three. A sign that asks all
persons who arrive from Baltimore to speak to the desk
clerk includes those who took a taxi from the train station.
There is nothing unnatural about such a construction. As
the plurality correctly noted in Rapanos v. United States,
547 U. S. 715 (2006), the statute here does not say “directly”
from or “immediately” from. Id., at 743 (opinion of Scalia,
J.). Indeed, the expansive language of the provision—any
addition from any point source—strongly suggests its scope
is not so limited.
Justice Alito appears to believe that there are only two
possible ways to read “from”: as referring either to the im-
mediate source, or else to the original source. Post, at 199,
202. Because he agrees that the statute cannot reasonably
be read always to reach the original source, he concludes the
statute must refer only to the immediate origin. But as the
foregoing example illustrates, context may indicate that
“from” includes an intermediate stop—Baltimore, not Eu-
rope or the train station.
Justice Thomas relies on the word “addition,” but we fail
to see how that word limits the statute to discharges directly
to navigable waters. Ordinary language abounds in counter
examples: A recipe might instruct to “add the drippings from
the meat to the gravy”; that instruction does not become
incomprehensible, or even peculiar, simply because the drip-
pings will have frst collected in a pan or on a cutting board.
And while it would be an unusual phrasing (as statutory
phrasings often are), we do not see how the recipe's meaning
would transform if it instead said to “add the drippings to
the gravy from the meat.” To take another example: If
Timmy is told to “add water to the bath from the well” he
will know just what it means—even though he will have to
use a bucket to complete the task.

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Opinion of the Court
And although Justice Thomas resists the inevitable im-
pl
ications of his reading of the statute, post, at 193, that read-
ing would create the same loopholes as those offered by the
petitioner and the Government, and more. It would neces-
sarily exclude a pipe that drains onto the beach next to navi-
gable waters, even if the pollutants then fow to those wa-
ters. It also seems to exclude a pipe that hangs out over
the water and adds pollutants to the air, through which the
pollutants fall to navigable waters. The absurdity of such
an interpretation is obvious enough.
We therefore reject this reading as well: Like Maui's and
the Government's, it is inconsistent with the statutory text
and simultaneously creates a massive loophole in the permit-
ting scheme that Congress established.
E
For the reasons set forth in Part III and in this Part, we
conclude that, in light of the statute's language, structure,
and purposes, the interpretations offered by the parties, the
Government, and the dissents are too extreme.
V
Over the years, courts and EPA have tried to fnd general
language that will refect a middle ground between these ex-
tremes. The statute's words refect Congress' basic aim to
provide federal regulation of identifable sources of pollut-
ants entering navigable waters without undermining the
States' longstanding regulatory authority over land and
groundwater. We hold that the statute requires a permit
when there is a direct discharge from a point source into
navigable waters or when there is the functional equivalent
of a direct discharge. We think this phrase best captures,
in broad terms, those circumstances in which Congress in-
tended to require a federal permit. That is, an addition falls
within the statutory requirement that it be “from any point
source” when a point source directly deposits pollutants into

184 COUNTY
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Opinion of the Court
navigable waters, or when the discharge reaches the same
resu
lt through roughly similar means.
Time and distance are obviously important. Where a pipe
ends a few feet from navigable waters and the pipe emits
pollutants that travel those few feet through groundwater
(or over the beach), the permitting requirement clearly ap-
plies. If the pipe ends 50 miles from navigable waters and
the pipe emits pollutants that travel with groundwater, mix
with much other material, and end up in navigable waters
only many years later, the permitting requirements likely do
not apply.
The object in a given scenario will be to advance, in a
manner consistent with the statute's language, the statutory
purposes that Congress sought to achieve. As we have said
(repeatedly), the word “from” seeks a “point source” origin,
and context imposes natural limits as to when a point source
can properly be considered the origin of pollution that trav-
els through groundwater. That context includes the need,
refected in the statute, to preserve state regulation of
groundwater and other nonpoi nt sources of pol luti on.
Whether pollutants that arrive at navigable waters after
traveling through groundwater are “from” a point source de-
pends upon how similar to (or different from) the particular
discharge is to a direct discharge.
The diffculty with this approach, we recognize, is that it
does not, on its own, clearly explain how to deal with middle
instances. But there are too many potentially relevant fac-
tors applicable to factually different cases for this Court now
to use more specifc language. Consider, for example, just
some of the factors that may prove relevant (depending upon
the circumstances of a particular case): (1) transit time, (2)
distance traveled, (3) the nature of the material through
which the pollutant travels, (4) the extent to which the pol-
lutant is diluted or chemically changed as it travels, (5) the
amount of pollutant entering the navigable waters relative
to the amount of the pollutant that leaves the point source,

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Opinion of the Court
(6) the manner by or area in which the pollutant enters the
nav
igable waters, (7) the degree to which the pollution (at
that point) has maintained its specifc identity. Time and
distance will be the most important factors in most cases,
but not necessarily every case.
At the same time, courts can provide guidance through
decisions in individual cases. The Circuits have tried to do
so, often using general language somewhat similar to the
language we have used. And the traditional common-law
method, making decisions that provide examples that in turn
lead to ever more refned principles, is sometimes useful,
even in an era of statutes.
The underlying statutory objectives also provide guidance.
Decisions should not create serious risks either of under-
mining state regulation of groundwater or of creating loop-
holes that undermine the statute's basic federal regulatory
objectives.
EPA, too, can provide administrative guidance (within
statutory boundaries) in numerous ways, including through,
for example, grants of individual permits, promulgation of
general permits, or the development of general rules. In-
deed, over the years, EPA and the States have often con-
sidered the Ac t's appl icati on to discharges through
groundwater.
Both Maui and the Government object that to subject
discharges to navigable waters through groundwater to the
statute's permitting requirements, as our interpretation will
sometimes do, would vastly expand the scope of the statute,
perhaps requiring permits for each of the 650,000 wells like
petitioner's or for each of the over 20 million septic systems
used in many Americans' homes. Brief for Petitioner 44–
48; Brief for United States as Amicus Curiae 24–25. Cf.
Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324
(2014).
But EPA has applied the permitting provision to some
(but not to all) discharges through groundwater for over 30

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Opinion of the Court
years. See supra, at 177. In that time we have seen no
e
vidence of unmanageable expansion. EPA and the States
also have tools to mitigate those harms, should they arise,
by (for example) developing general permits for recurring
situations or by issuing permits based on best practices
where appropriate. See, e. g., 40 CFR § 122.44(k) (2019).
Judges, too, can mitigate any hardship or injustice when they
apply the statute's penalty provision. That provision vests
courts with broad discretion to set a penalty that takes ac-
count of many factors, including “any good-faith efforts to
comply” with the Act, the “seriousness of the violation,” the
“economic impact of the penalty on the violator,” and “such
other matters as justice may require.” See 33 U. S. C.
§ 1319(d). We expect that district judges will exercise their
discretion mindful, as we are, of the complexities inherent to
the context of indirect discharges through groundwater, so
as to calibrate the Act's penalties when, for example, a party
could reasonably have thought that a permit was not
required.
In sum, we recognize that a more absolute position, such
as the means-of-delivery test or that of the Government or
that of the Ninth Circuit, may be easier to administer. But,
as we have said, those positions have consequences that are
inconsistent with major congressional objectives, as revealed
by the statute's language, structure, and purposes. We con-
sequently understand the permitting requirement, § 301, as
applicable to a discharge (from a point source) of pollutants
that reach navigable waters after traveling through ground-
water if that discharge is the functional equivalent of a
direct discharge from the point source into navigable
waters.
VI
Because the Ninth Circuit applied a different standard, we
vacate its judgment and remand the case for further pro-
ceedings consistent with this opinion.
It is so ordered.

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187
Kavanaugh, J., concurring
Justice Kavanaugh, concurring.
I
join the Court's opinion in full. I write separately to
emphasize three points.
First, the Court's interpretation of the Clean Water Act
regarding pollution “from” point sources adheres to the in-
terpretation set forth in Justice Scalia's plurality opinion in
Rapanos v. United States, 547 U. S. 715 (2006). The Clean
Water Act requires a permit for “any addition of any pollut-
ant to navigable waters from any point source.” 33 U. S. C.
§ 1362(12)(A); see §§ 1311(a), 1342(a). The key word is
“from.” The question in this case is whether the County of
Maui needs a permit for its Lahaina Wastewater Reclama-
tion Facility. No one disputes that pollutants originated at
Maui's wastewater facility (a point source), and no one dis-
putes that the pollutants ended up in the Pacifc Ocean (a
navigable water). Maui contends, however, that it does not
need a permit. Maui says that the pollutants did not come
“from” the Lahaina facility because the pollutants traveled
through groundwater before reaching the ocean.
Justice Scalia's plurality opinion in Rapanos explained
why Maui's interpretation of the Clean Water Act is incor-
rect. In that case, Justice Scalia stated that polluters could
not “evade the permitting requirement of § 1342(a) simply
by discharging their pollutants into noncovered intermittent
watercourses that lie upstream of covered waters.” 547
U. S., at 742–743. Justice Scalia reasoned that the Clean
Water Act does not merely “forbid the `addition of any pollut-
ant directly to navigable waters from any point source,' but
rather the `addition of any pollutant to navigable waters.'
Thus, from the time of the CWA's enactment, lower courts
have held that the discharge into intermittent channels of
any pollutant that naturally washes downstream likely vio-
lates § 1311(a), even if the pollutants discharged from a point
source do not emit `directly into' covered waters, but pass
`through conveyances' in between.” Id., at 743 (citations
omitted).

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Thomas, J., dissenting
In other words, under Justice Scalia's interpretation in Ra-
panos
, the fact that the pollutants from Maui's wastewater
facility reach the ocean via an indirect route does not itself
exempt Maui's facility from the Clean Water Act's per-
mitting requirement for point sources. The Court today
adheres to Justice Scalia's analysis in Rapanos on that
issue.
Second, as Justice Scalia's opinion in Rapanos pointed out
and as the Court's opinion today explains, the statute does
not establish a bright-line test regarding when a pollutant
may be considered to have come “from” a point source. The
source of the vagueness is Congress' statutory text, not the
Court's opinion. The Court's opinion seeks to translate the
vague statutory text into more concrete guidance.
Third, Justice Thomas’ dissent states that “the Court
does not commit” to “which factors are the most important”
in determining whether pollutants that enter navigable wa-
ters come “from” a point source. Post, at 192. That cri-
tique is not accurate, as I read the Court's opinion. The
Court identifes relevant factors to consider and emphasizes
that “[t]ime and distance are obviously important.” Ante,
at 184. And the Court expressly adds that “[t]ime and dis-
tance will be the most important factors in most cases, but
not necessarily every case.” Ante, at 185. Although the
statutory text does not supply a bright-line test, the Court's
emphasis on time and distance will help guide application of
the statutory standard going forward.
With those additional comments, I join the Court's opinion
in full.
Justice Thomas, with whom Justice Gorsuch joins,
dissenting.
The Clean Water Act (CWA) requires a federal permit for
“the discharge of any pollutant by any person.” 33 U. S. C.
§ 1311(a); see § 1342. The CWA defnes a “discharge” as
“any addition of any pollutant to navigable waters from any

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189
Thomas, J., dissenting
point source.” § 1362(12).
1
Based
on the statutory text and
structure, I would hold that a permit is required only when
a point source discharges pollutants directly into navigable
waters. The Court adopts this interpretation in part, con-
cluding that a permit is required for “a direct discharge.”
Ante, at 183. But the Court then departs from the statutory
text by requiring a permit for “the functional equivalent of
a direct discharge,” ibid., which it defnes through an open-
ended inquiry into congressional intent and practical consid-
erations. Because I would adhere to the text, I respect-
fully dissent.
I
A
In interpreting the statutory defnition of “discharge,” the
Court focuses on the word “from,” but the most helpful word
is “addition.” That word, together with “to” and “from,”
limits the meaning of “discharge” to the augmentation of
navigable waters.
Dictionary defnitions of “addition” denote an augmen-
tation or increase. Webster's Third New International Dic-
tionary defnes “addition” as “the act or process of adding:
the joining or uniting of one thing to another.” Webster's
Third New International Dictionary 24 (1961); see also ibid.
(listing “increase” and “augmentation” as synonyms for “ad-
dition”). Other dictionary defnitions from around the time
of the statute's enactment are in accord. See, e. g., Ameri-
can Heritage Dictionary 14, 15 (1981) (defning “addition” as
“[t]he act or process of adding ” and defning “add” as “[t]o
1
The CWA defines “navigable waters” as “the waters of the United
States, including the territorial seas. ” § 1362(7). It defines a “point
source” as “any discernible, confned and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fssure, container, rolling stock, concentrated animal feeding operation, or
vessel or other foating craft, from which pollutants are or may be dis-
charged,” excluding “agricultural stormwater discharges and return fows
from irrigated agriculture.” § 1362(14).

190 COUNTY
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Thomas, J., dissenting
join or unite so as to increase in size, quantity, or scope”);
see
also Webster's New International Dictionary 29, 30 (2d
ed. 1957) (defning “addition” as the “[a]ct, process, or in-
stance of adding,” and defning “add” as to “join or unite, as
one thing to another, or as several particulars, so as to in-
crease the number, augment the quantity, enlarge the magni-
tude, or so as to form into one aggregate”).
The inclusion of the term “addition” in the CWA indicates
that the statute excludes anything other than a direct dis-
charge. When a point source releases pollutants to ground-
water, one would naturally say that the groundwater has
been augmented with pollutants from the point source. If
the pollutants eventually reach navigable waters, one would
not naturally say that the navigable waters have been aug-
mented with pollutants from the point source. The augmen-
tation instead occurs with pollutants from the groundwater.
The prepositions “from” and “to” reinforce this reading.
When pollutants are released from a point source to another
point source or groundwater, they are added to the second
from the frst. If the pollutants are later released to naviga-
ble waters, they are added to the navigable waters from the
second point source or the groundwater. One would not
naturally say that the pollutants are added to the navigable
waters from the original point source.
Interpreting “discharge” to mean a direct discharge makes
sense of other parts of the defnition as well. It respects
the statutory defnition of a point source as a “conveyance,”
see § 1362(14), because a point source that releases pollutants
directly into navigable waters is a means of conveyance.
And it makes sense of the word “any” before “point source,”
because that term clarifes that any kind of point source may
require a permit.
The structure of the CWA confrms this interpretation.
It authorizes the Environmental Protection Agency (EPA)
to regulate discharges from point sources, including through
the permitting process, but it reserves to the States the pri-

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191
Thomas, J., dissenting
mary responsibility for regulating other sources of pollution,
i
ncluding groundwater. With respect to these sources, the
EPA merely collects infor mati on, coordi nates w ith the
States, and provides funding. See 33 U. S. C. §§ 1252(a),
1254(a)(5), 1282(b)(2), 1288, 1314(a), 1329; ante, at 175. In
the CWA, Congress expressly stated its “policy . . . to recog-
nize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution.”
§ 1251(b). Thus, construing the EPA's power to regulate
point sources to allow the agency to regulate nonpoint
sources and groundwater is in serious tension with Con-
gress' design.
My reading is also consistent with our decision in South
Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S.
95 (2004). The petitioner in that case argued that no permit
was required when a point source was not the original source
of the pollutant but instead conveyed the pollutant from fur-
ther up a chain of sources. Id., at 104. We rejected that
argument because “a point source need not be the original
source of the pollutant; it need only convey the pollutant to
`navigable waters.' ” Id., at 105. Although that case did
not involve the exact question presented here, the direct-
discharge interpretation comports well with that previous
decision.
B
The Court's main textual argument reads the word “from”
in isolation. But as the Court recognizes, “the word `from'
necessarily draws its meaning from context.” Ante, at 178.
The Court's example using “arrive” instead of “addition” is
thus unpersuasive, ante, at 181–182, because “from” takes
different meanings with different verbs. The Court's culi-
nary example also misses the mark, ante, at 182, because if the
drippings from the meat collect in the pan before the chef
adds them to the gravy, the drippings are added to the gravy
from the pan, not from the meat. This point becomes clear
if we reorder the majority's recipe to match the statute; the

192 COUNTY
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Thomas, J., dissenting
chef has not added the drippings to the gravy from the meat.
The
Court's bathwater example, ibid., suffers from the same
problem; if the well water is put in a bucket before it is put
in the bathtub, it is added to the bathtub from the bucket.
Only by reading the phrase in its entirety can we interpret
the defnition of “discharge.” See Deal v. United States, 508
U. S. 129, 132 (1993).
The Court also asserts that a narrower reading than the
one it adopts would create a “massive loophole” in the stat-
ute. Ante, at 183. Far from creating a loophole, my read-
ing is the most logical because it is consonant with the scope
of Congress' power. The CWA presumably was passed as
an exercise of Congress' authority “[t]o regulate Commerce
with foreign Nations, and among the several States, and with
the Indian Tribes.” U. S. Const., Art. I, § 8, cl. 3. My inter-
pretation ties the statute more closely to navigable waters,
on the theory that they are at least a channel of these kinds
of commerce.
Further, the Court's interpretation creates practical prob-
lems of its own. As the Court acknowledges, its opinion
gives almost no guidance, save for a list of seven factors.
But the Court does not commit to whether those factors are
the only relevant ones, whether those factors are always rel-
evant, or which factors are the most important. See ante,
at 183–185. It ultimately does little to explain how function-
ally equivalent an indirect discharge must be to require a
permit.
2
2
Justice Kavanaugh believes that the Cour t's opi ni on prov ides
enough guidance when it states that “[t]ime and distance will be the most
important factors in most cases, but not necessarily every case,” ante,
at 185 (majority opinion) (emphasis added). See ante, at 188 (concurring
opinion). His hope for guidance appears misplaced. For all we know,
these factors may not be the most important in 49 percent of cases. The
majority's nonexhaustive seven-factor test “may aid in identifying relevant
facts for analysis, but—like most multifactor tests—it leaves courts adrift
once those facts have been identifed.” Dietz v. Bouldin, 579 U. S. 40, 57
(2016) (Thomas, J., dissenting); see also Scalia, The Rule of Law as a Law

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193
Thomas, J., dissenting
The Court suggests that the EPA could clarify matters
through
“administrative guidance,” ante, at 185, but so far
the EPA has provided only limited advice and recently
shifted its position, see 84 Fed. Reg. 16810 (2019); ante, at
173. In any event, the sort of “ `general rules' ” that the
Court hopes the EPA will promulgate are constitutionally
suspect. See Department of Transportation v. Association
of American Railroads, 575 U. S. 43, 67–87 (2015) (Thomas,
J., concurring in judgment).
Despite giving minimal guidance as to how this case
should be decided on remand, the majority speculates about
whether a permit would be required in other factual circum-
stances. It poses the examples of a pipe that releases pol-
lutants over navigable waters and a pipe that releases pollut-
ants onto land near navigable waters. As an initial matter,
I am not as sure as the majority that a “pollutant,” as defned
by the CWA, may be added to the air.
3
Even if the majority
is correct that a permit is not required in these hypothetical
cases, drawing the line at discharges to water is not so ab-
surd as to undermine the most natural reading of the statute.
In any event, it is unnecessary to decide these hypothetical
cases today.
Finally, the Court speculates as to “those circumstances
in which Congress intended to require a federal permit.”
Ante, at 183. But we are not a superlegislature (or super-
EPA) tasked with making good policy—assuming that is
of Rules, 56 U. Chi. L. Rev. 1175, 1186–1187 (1989) (noting that “when
balancing is the mode of analysis, not much general guidance may be
drawn from the opinion” and arguing that “totality of the circumstances
tests and ba lanci ng modes of ana lysis” shou ld “ be avoided where
possible”).
3
The CWA defnes a “pollutant” as “dredged spoil, solid waste, incinera-
tor residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal, and agricul-
tural waste discharged into water,” with certain exceptions. § 1362(6).

194 COUNTY
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Thomas, J., dissenting
even what the Court accomplishes today. “Our job is to fol-
low
the text even if doing so will supposedly undercut a basic
objective of the statute.” Baker Botts L. L. P. v. ASARCO
LLC, 576 U. S. 121, 135 (2015) (internal quotation marks
omitted).
II
I do agree with the Court on several points. First, the
interpretation adopted by respondents and the Ninth Circuit
is unsupportable. That interpretation—which would re-
quire permits for discharges that are “ `fairly traceable' ” to,
and proximately caused by, a point source—is atextual and
unsettles the CWA's careful balance between federal regula-
tion of point-source pollution and state regulation of non-
point-source pollution. Ante, at 174–178.
Second, I agree that the interpretation adopted by peti-
tioner and Justice Alito reads the word “any” unnaturally,
ante, at 179, although the majority appears to deploy that
argument itself in another part of the opinion, ante, at 182.
Petitioner's and Justice Alito's interpretation also gives
insuffcient weight to the meaning of “addition,” see supra,
at 189–190.
Third, I agree that the EPA's interpretation is not entitled
to deference for at least two reasons: No party requests it,
and the EPA's reading is not the best one. Ante, at 180–
181. I add only that deference under Chevron U. S. A. Inc.
v. Na tura l Reso urces De fen se Co unc i l, Inc., 467 U. S.
837 (1984), likely conficts with the Vesting Clauses of the
Constitution. See Baldwin v. United States, 589 U. S.
1237, 1238–1245 (2020) (Thomas, J., dissenting from denial of
certiorari); Michigan v. EPA, 576 U. S. 743, 761–764 (2015)
(Thomas, J., concurring); see also Perez v. Mortgage Bankers
Assn., 575 U. S. 92, 115–126 (2015) (Thomas, J., concurring
in judgment).
Finally, I agree with the Court's implicit conclusion that
Rapanos v. United States, 547 U. S. 715 (2006), does not re-

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195
Alito, J., dissenting
solve this case. That plurality opinion, which I joined, ob-
served
that lower courts have required a permit when pollut-
ants pass through a chain of point sources. Id., at 743–744.
But we expressly said in Rapanos that “we [did] not decide
this issue.” Id., at 743. We are not bound by dictum in a
plurality opinion or by the lower court opinions it cited.
III
The best reading of the statute is that a “discharge” is the
release of pollutants directly from a point source to navigable
waters. The application of this interpretation to the undis-
puted facts of this case makes a remand unnecessary. Peti-
tioner operates a wastewater treatment facility and injects
treated wastewater into four underground injection control
wells. All parties agree that the wastewater enters ground-
water from the wells and does not directly enter navigable
waters. Based on these undisputed facts, there is no “dis-
charge,” so I would reverse the judgment of the Ninth Cir-
cuit. I respectfully dissent.
Justice Alito, dissenting.
If the Court is going to devise its own legal rules, instead
of interpreting those enacted by Congress, it might at least
adopt rules that can be applied with a modicum of consist-
ency. Here, however, the Court makes up a rule that
provides no clear guidance and invites arbitrary and incon-
sistent application.
The text of the Clean Water Act generally requires a per-
mit when a discharge “from” a “point source” (such as a pipe)
“add[s]” a pollutant “to” navigable waters (such as the Pacifc
Ocean). 33 U. S. C. § 1362(12). There are two ways to read
this text. A pollutant that reaches the ocean could be un-
derstood to have been added “from” a pipe if the pipe origi-
nally discharged the pollutant and the pollutant eventually
made its way to the ocean by fowing over or under the sur-

196 COUNTY
OF MAUI v. HAWAII WILDLIFE FUND
Alito, J., dissenting
face of the ground. Or a pollutant that reaches the ocean
cou
ld be understood to have come “from” a pipe if the pollut-
ant is discharged from the pipe directly into the ocean.
There is no comprehensible alternative to these two inter-
pretations, but the Court refuses to accept either. Both al-
ternatives, it believes, lead to unacceptable results, and it
therefore tries to fnd a middle way. It holds that a permit
is required “when there is a direct discharge from a point
source into navigable waters or when there is the functional
equivalent of a direct discharge.” Ante, at 183. This is not
a plausible interpretation of the statutory text and, to make
matters worse, the Court's test has no clear meaning.
Just what is the “functional equivalent” of a “direct dis-
charge”? The Court provides no real answer. All it will
say is that the distance a pollutant travels and the time this
trip entails are the most important factors, but at least fve
other factors may have a bearing on the question, and even
this list is not exhaustive. Ante, at 184–185. Entities like
water treatment authorities that need to know whether they
must get a permit are left to guess how this nebulous stand-
ard will be applied. Regulators are given the discretion, at
least in the frst instance, to make of this standard what they
will. And the lower courts? The Court's advice, in es-
sence, is: “That's your problem. Muddle through as best you
can.”
I
Petitioner, the County of Maui (County), built the Lahaina
Wastewater Reclamation Facility in the 1970s. Excerpts of
Record 304. The facility receives sewage and then dis-
charges treated wastewater into wells (essentially long
pipes) that extend 200 feet or more below ground level. Id.,
at 694–695. Some of this discharge enters an aquifer below
the facility. Id., at 696.
In all the years of its operation, the facility has never had a
National Pollution Discharge Elimination System (NPDES)
permit for discharges from the wells, a fact that has been

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197
Alito, J., dissenting
well known to both the EPA and the Hawaii Department of
H
ealth (HDOH). The EPA helped to fnance the construc-
tion of the facility with a Clean Water Act grant. Id., at 141.
In 1973, before breaking ground on the facility, the County
prepared an environmental impact report and shared it with
the EPA and the HDOH. Id., at 140, 342. The report pre-
dicted that effuent injected into groundwater from the wells
would “eventually reach the ocean some distance from the
shore.” Id., at 342. Both the EPA and the HDOH received
and submitted comments on the report without any mention
of a need for permitting discharges from the wells. Id., at
140. Six years later, the HDOH issued an NPDES permit
to the facility—but not for the wells. (The permit covered
separate discharges to the Honokowai Stream.) Id., at 141,
223–224. And in a May 1985 NPDES Compliance Monitor-
ing Report, the EPA concluded that the County was operat-
ing in compliance with the permit, because all effuent was
entering the injection wells—and was thus destined for
groundwater rather than for navigable waters or for use in
irrigation. Id., at 141, 222. In 1994, the HDOH again in-
formed the EPA that “all experts agree that the wastewater
does enter the ocean.” Id., at 369. And again—nothing
from the federal authorities.
Thus, despite nearly fve decades of notice that effuent
from the facility would make, or was making, its way via
groundwater to the ocean, neither the EPA nor the HDOH
required NPDES permitting for the Lahaina wells. App. to
Pet. for Cert. 138, 143. Indeed, none of the more than 6,600
underground injection wells in Hawaii currently has an
NPDES permit.
1
In 2012, however, as the Court recounts, respondents fled
a citizen suit claiming that the Lahaina facility was violating
1
EPA, FY 2018 State Underground Injection Control Inventory, https://
www.epa.gov/uic/uic-injection-well-inventory; EPA, Hawaii NPDES Per-
mits: Draf t and Fi na l NPDES Permits, https://www.epa.gov/npdes-
permits/hawaii-npdes-permits.

198 COUNTY
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Alito, J., dissenting
the Clean Water Act by discharging pollutants into the ocean
w
ithout a permit. The District Court granted summary
judgment against the County on the issue of liability because
pollutants “can be directly traced from the injection wells to
the ocean.” 24 F. Supp. 3d 980, 998 (Haw. 2014) (emphasis
deleted).
The parties then entered into a conditional settlement that
would take effect if the County were unsuccessful on appeal.
Under that agreement, the County must: make good-faith
efforts to obtain and comply with an NPDES permit; pay
$100,000 in civil penalties; spend $2.5 million on a “supple-
mental environmental project” in the western part of the
island of Maui; and pay nearly $1 million for respondents'
attorney's fees and other costs of litigation.
2
On appeal, the Ninth Circuit affrmed on the ground that
pollutants that eventually reached the ocean were “fairly
traceable” to the wells. 886 F. 3d 737, 749 (2018). We
granted review and must now decide whether the Court of
Appeals erred in holding that the discharge of effuent from
the wells into groundwater requires a permit.
II
The Clean Water Act generally makes it unlawful to
“discharge” a “pollutant”
3
without a permit. 33 U. S. C.
§ 1311(a). The Act defnes the “discharge of a pollutant” as
“any addition of any pollutant to navigable waters[
4
] from
2
Settlement Agreement and Order re: Remedies in No. 1:12–cv–198,
Doc. 259 (Haw.); Stipulated Settlement Agreement Regarding Award of
Plaintiffs' Costs of Litigation, ibid., Doc. 267 (Haw.).
3
The Act defnes a “pollutant” as:
“dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials, radioactive mate-
rials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and in-
dustrial, municipal, and agricultural waste discharged into water . . . .”
§ 1362(6).
4
The Act defnes “navigable waters” as “waters of the United States,
including the territorial seas.” § 1362(7). The term “navigable waters”
has a well-known meaning, but the broader term “waters of the United

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199
Alito, J., dissenting
any point source.” § 1362(12). And a “point source” is
broadly
defned as “any discernible, confned and discrete
conveyance . . . from which pollutants are or may be dis-
charged.” § 1362(14). The Act includes a non-exhaustive
list of conveyances that fall within this defnition, and in-
cluded on that list are such things as “pipe[s],” “ditch[es],”
“channel[s],” and “well[s].” Ibid.
Putting all these statutory terms together, the rule can be
stated as follows: A permit is required when a pollutant is
“add[ed]” to navigable waters “from” a “point source.” In
this case, the parties and the EPA agree that most of the
elements of this rule are met. Specifcally, they agree that:
The effuent emitted by the wells is a “pollutant”; this ef-
fuent reaches navigable waters (the Pacifc Ocean); and
the wells are “point source[s].” The disputed question is
whether the emission of effuent from those wells qualifes
as a “discharge,” that is, the addition of a pollutant “ from”
a point source. § 1362(12) (emphasis added).
There are two possible interpretations of this phrase.
The frst is that pollutants are added to navigable waters
from a point source whenever they originally came from the
point source. The second is that pollutants are added to
navigable waters only if they were discharged from a point
source directly into navigable waters.
Dissatisfed with those options, the Court tries to fnd a
third, but its interpretation is very hard to ft into the statu-
tory text. Under the Court's interpretation, it appears that
a pollutant that leaves a point source and heads toward navi-
gable waters via some non-point source (such as by fowing
over the ground or by means of groundwater) is “from” the
point source for some portion of its journey, but once it has
States” is not defned by the Clean Water Act and has presented a diffcult
issue for this Court. See Rapanos v. United States, 547 U. S. 715 (2006).
The EPA's defnition of “waters of the United States” expressly excludes
groundwater, see 40 CFR § 122.2 (2019); 84 Fed. Reg. 4190 (2019), and no
party in this case disputes that interpretation.

200 COUNTY
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Alito, J., dissenting
travelled a certain distance or once a certain amount of time
has
elapsed, it is no longer “from” the point source and is
instead “from” a non-point source.
This is an implausible reading of the statute. The Court
has many inventive examples of the different meanings that
can be conveyed by the simple statement that A comes from
B, but one of the Court's examples—the traveler who fies
from Europe to Baltimore—illustrates the problem. If we
apply the Court's interpretation of § 1362 to this traveler's
journey, he would be “from” Europe for the frst part of the
fight, but at some point he might cease to be “from” Europe
and would then be from someplace else, maybe Greenland or
geographical coordinates in the middle of the Atlantic. This
is a very strange notion, and therefore, I think the statutory
text compels us to choose between the two alternatives set
out above.
The Court rejects both of these because it thinks they lead
to unacceptably extreme results. “Originally from” would
impose liability even if pollutants discharged into ground
water had to travel 250 miles over the course of 100 years
before reaching navigable waters. See ante, at 174. And
“ `immediately' ” or “ `directly' from,” the Court thinks, would
mean that a polluter could evade the permit requirement by
discharging pollutants from a pipe located just a few feet
from navigable waters. Ante, at 182.
To escape these possibilities, the Court devises its own
test: A permit is required, the Court holds, “when there is a
direct discharge from a point source into navigable waters
or when there is the functional equivalent of a direct dis-
charge.” Ante, at 183 (emphasis in original). The Clean
Water Act, however, says nothing about “the functional
equivalent” of a direct discharge. That is the Court's own
concoction, and the Court provides no clear explanation of
its meaning.
The term “functional equivalent” may have a quasi-
technical ring, but what does it mean? “Equivalent” means

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Alito, J., dissenting
“equal” in some respect, and “functional” signifes a relation-
sh
ip to a function. The function of a direct discharge from
a point source into navigable waters is to convey the entirety
of the discharge into navigable waters without any delay.
Therefore, the “functional equivalent” of a direct discharge
of a pollutant into navigable waters would seem to be a dis-
charge that is equal to a direct discharge in these respects.
If that is what the Court meant by “the functional equiva-
lent of a direct discharge,” the test would apply at best to
only a small set of situations not involving a direct discharge.
The Court's example of a pipe that emits pollutants a few
feet from the ocean would presumably qualify on de minimis
grounds, but if the pipe were moved back any signifcant
distance, the discharge would not be exactly equal to a direct
discharge. There would be some lag from the time of the
discharge to the time when the pollutant reaches navigable
waters; some of the pollutant might not reach that destina-
tion; and the pollutant might have changed somewhat in com-
position by the time it reached the navigable waters.
For these reasons, the Court's reference to “the functional
equivalent of a direct discharge,” if taken literally, would be
of little importance, but the Court's understanding of this
concept is very different from the literal meaning of the
phrase. As used by the Court, “the functional equivalent of
a direct discharge” means a discharge that is suffciently sim-
ilar to a direct discharge to warrant a permit in light of the
Clean Water Act's “language, structure, and purposes.” See
ante, at 186. But what, in concrete terms, does this mean?
How similar is suffciently similar?
The Court provides this guidance. It explains that time
and distance are the most important factors, ante, at 184, but
it does not set any time or distance limits except to observe
that a permit is needed where the discharge is a few feet
away from navigable waters and that a permit is not re-
quired where the discharge is far away and it takes “many
years” for the pollutants to complete the journey. Ibid.

202 COUNTY
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Alito, J., dissenting
Beyond this, the Court provides a list (and a non-exhaustive
one
at that!) of fve other factors that may be relevant: “the
nature of the material through which the pollutant travels,”
“the extent to which the pollutant is diluted or chemically
changed as it travels,” “the amount of pollutant entering the
navigable waters relative to the amount of the pollutant that
leaves the point source,” “the manner by or area in which
the pollutant enters the navigable waters,” and “the degree
to which the pollution (at that point) has maintained its spe-
cifc identity.” Ante, at 184–185.
The Court admits that its rule “does not, on its own,
clearly explain how to deal with middle instances,” ante, at
184, but that admission does not go far enough. How the
rule applies to “middle instances” is anybody's guess. Ex-
cept in extreme cases, dischargers will be able to argue that
the Court's multifactor test does not require a permit. Op-
ponents will be able to make the opposite argument. Regu-
lators will be able to justify whatever result they prefer in
a particular case. And judges will be left at sea.
III
A
Instead of concocting our own rule, I would interpret the
words of the statute, and in my view, the better of the two
possible interpretations is that a permit is required when a
pollutant is discharged directly from a point source to navi-
gable waters. This interpretation is consistent with the
statutory language and better fts the overall scheme of the
Clean Water Act. And properly understood, it does not
have the sort of extreme consequences that the Court fnds
unacceptable.
Take the Court's example of a pipe that discharges pollut-
ants a short distance from the ocean. Ante, at 178. This
pipe qualifes as a point source. 33 U. S. C. § 1362(14). If

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as: 590 U. S. 165 (2020)
203
Alito, J., dissenting
its discharge goes directly into another point source and that
poi
nt source discharges directly into navigable waters, there
is a direct discharge into navigable waters, and a permit is
needed. See Rapanos v. United States, 547 U. S. 715, 743–
744 (2006) (plurality opinion).
5
5
Justice Thomas describes his preferred holding in similar terms: “[A]
permit is required only when a point source discharges pollutants directly
into navigable waters.” Ante, at 189 (dissenting opinion). But I take
Justice Thomas's opinion to foreclose liability in one situation where I
believe a permit would be required: a discharge from multiple, linked point
sources. In my view, a permit is required in that instance because a pol-
lutant would ultimately be added to navigable waters directly from a
point source.
Justice Scalia's opinion in Rapanos, 547 U. S., at 743–744 (plurality opin-
ion), supports this conclusion. Rapanos addressed the meaning of the
term “waters of the United States,” and Justice Scalia's opinion concluded
that this term does not apply to “[w]etlands with only an intermittent,
physically remote hydrologic connection to [such waters].” Id., at 742.
At one point in his opinion, Justice Scalia responded to the argument that
this interpretation would allow polluters to evade the permit requirement
“simply by discharging their pollutants into noncovered intermittent wa-
tercourses that lie upstream of covered waters.” Id., at 743. Arguing
that this was not likely to occur, he identifed two lines of lower court
authority that would prevent such evasion, but he did not endorse either.
Ibid.
One of these lines was based on exactly the interpretation set out in
this opinion, namely, that “such upstream, intermittently fowing channels
themselves constitute `point sources' ” under the Act's broad defnition of
that term. Ibid. The other line, as described in Justice Scalia's opinion,
“held that the discharge into intermittent channels of any pollutant that
naturally washes downstream likely [requires a permit] even if the pollut-
ants discharged from a point source do not emit `directly into' covered
waters, but pass `through conveyances' in between.” Ibid. (emphasis in
original). To the extent these lower court cases are understood as hold-
ing that a permit is required whenever a pollutant “naturally” reaches
waters of the United States, their reasoning would confict with the
Court's rejection of the theory that a permit is required whenever a pollut-
ant that originated from a point source ultimately reaches covered waters.
But as Justice Scalia noted, in the two cases he cited, the pollutants were
discharged from point sources into “conveyances” that, in turn, brought

204 COUNTY
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Alito, J., dissenting
That a permit is required in this situation is important
because
the Clean Water Act's defnition of a “point source”
is very broad, and as a result, many discharges onto the sur-
face of land are likely to be covered. As noted, “point
source[s]” include “ditch[es]” and “channel[s],” as well as “any
discernible, confned and discrete conveyance . . . from which
pollutants . . . may be discharged.” § 1362(14). Therefore
if water discharged on the surface of the land fnds or creates
a passage leading to navigable waters, a permit may be re-
quired if the course that the discharge takes is (1) a “convey-
ance” that is (2) “discernible” and (3) “confned.”
Those three requirements are rather easily satisfed.
When a liquid fows over the surface of land to navigable
waters, the surface is a conveyance, i. e., a “means of carry-
ing or transporting something ” from one place to another.
Webster's Third New International Dictionary 499 (1971)
(Webster's Third); Random House Dictionary of the English
Language 320 (1967) (Random House).
6
This conveyance
the pollutants to covered waters. Ibid. And the conveyances in both
cases, a sewer system and tunnel, ibid., could easily fall within the broad
defnition of a point source.
In short, at least one and perhaps both of the lines of lower court cases
to which Justice Scalia referred are fully consistent with the interpreta-
tion set out in this opinion. The same is true of his statement, discussed
by Justice Kavanaugh, ante, at 187–188 (concurring opinion), that the
Clean Water Act “does not forbid the `addition of any pollutant directly to
navigable waters from any point source.' ” 547 U. S., at 743. As noted,
Justice Scalia's opinion is open to the possibility that a permit is required
if point source A discharges into point source B, and point source B then
discharges into covered waters. Thus, his opinion apparently regards
that situation as involving an indirect discharge. I would describe that
discharge as direct because point source B discharges directly into covered
waters, but the difference is purely semantic.
6
As we have said, the Act's point-source “defnition makes plain that a
point source need not be the original source of the pollutant; it need only
convey the pollutant to `navigable waters,' which are, in turn, defned as
`the waters of the United States.' ” South Fla. Water Management Dist.
v. Miccosukee Tribe, 541 U. S. 95, 105 (2004). The label is a bit of a misno-
mer: Although labeled “point sources,” “[t]ellingly, the examples . . . listed

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205
Alito, J., dissenting
would be “discernible,” i. e., capable of being seen. Web-
ster
's Third 644; Random House 409. And it would be “con-
fned,” i. e., held within bounds, see Webster's Third 476;
Random House 308, if the topography of the land in question
imposes some boundaries on its fow.
If the term “point source” is read in this way, it would
have a broad reach and would cover many of the cases that
trouble the Court. Moreover—and I fnd this point particu-
larly important—even if this interpretation fails to capture
every case that seems to call out for regulation, that would
not mean that these cases would necessarily remain un-
checked. The States have the authority to regulate the dis-
charge of pollutants by non-point sources. See 33 U. S. C.
§§ 1285( j), 1314(f ), 1329(i), 1329(b)(1), (h). They are en-
trusted with a vital role under the Clean Water Act, and
there is no reason to believe that they would tolerate cases
of abuse.
The interpretation I have outlined is not only consistent
with the statutory language; it is strongly supported by the
Clean Water Act's regulatory scheme for at least two rea-
sons. First, it respects Congress' decision to treat point-
source pollution differently from non-point-source pollution,
including pollution conveyed by groundwater. See 84 Fed.
Reg. 16832.
7
The Court itself recognizes this:
“[T]he structure of the statute indicates that, as to
groundwater pollution and non[-]point source pollution,
by the Act include pipes, ditches, tunnels, and conduits, objects that do
not themselves generate pollutants but merely transport them.” Ibid.
(citing § 1362(14)).
7
The Act contains a number of references to groundwater (a non-point
source) outside the NPDES context. The Act textually distinguishes
groundwater from surface water and navigable waters, § 1252(a), provides
funding for state regulation of groundwater pollution, and suggests that
groundwater is a non-point source. See § 1329(h)(5)(D) (authorizing EPA
to prioritize grants to States that have implemented or proposed “carry-
[ing] out ground water quality protection activities which [EPA] deter-
mines are part of a comprehensive non[-]point source pollution control
program”).

206 COUNTY
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Alito, J., dissenting
Congress intended to leave substantial responsibility
and
autonomy to the States.” Ante, at 174.
“Over many decades, and with federal encouragement,
the States have developed methods of regulating non-
point source pollution through water quality standards,
and otherwise.” Ante, at 175.
“The Act envisions EPA's role in managing non[-]point
source pollution and groundwater pollution as limited to
studying the issue, sharing information with and collect-
ing information from the States, and issuing monetary
grants.” Ibid.
Point sources are readily identifable and therefore more
susceptible to uniform nationwide regulation. Non-point-
source pollution, on the other hand, often presents more com-
plicated issues that are better suited to individualized local
solutions. See Shanty Town Assoc. L. P. v. EPA, 843 F. 2d
782, 791 (CA4 1988) (“[T]he control of non[-]point source pol-
lution was so dependent on such site-specifc factors as to-
pography, soil structure, rainfall, vegetation, and land use
that its uniform federal regulation was virtually impossi-
ble”); Natural Resources Defense Council v. EPA, 915 F. 2d
1314, 1316 (CA9 1990) (“The Act focused on point source pol-
luters presumably because they could be identifed and regu-
lated more easily than non[-]point source polluters”); Brief
for State of West Virginia et al. as Amici Curiae 14–18.
Second, this bright-line rule is consistent with the Act's
remedial scheme. The Clean Water Act imposes a regime
of strict liability, §§ 1311, 1342, 1344, backed by criminal pen-
alties and steep civil fnes, § 1319. Thus, “the consequences
to landowners even for inadvertent violations can be crush-
ing.” Army Corps of Engineers v. Hawkes Co., 578 U. S.
590, 602 (2016) (Kennedy, J., concurring). The Act author-
izes as much as $54,833 in fnes per day (or more than $20
million per year), 40 CFR § 19.4; 84 Fed. Reg. 2059, and con-
tains a 5-year statute of limitations, 28 U. S. C. § 2462. And

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207
Alito, J., dissenting
the availability of citizen suits only exacerbates the danger to
ordi
nary landowners. Even when the EPA and the relevant
state agency conclude that a permit is not needed, there is
always the possibility that a citizen suit will result in a very
costly judgment. The interpretation set out above, by pro-
viding a relatively straightforward rule, provides a measure
of fair notice and promotes good-faith compliance.
B
The alternative way in which the statutory language could
be interpreted—reading “from” to mean “originally from”—
would lead to extreme results, as the Court recognizes.
And while state regulation could fll any unwarranted gaps
left by the interpretation I have outlined, there would be no
apparent remedy for the overreach that would result from
interpreting “from” to mean “originally from.”
The extreme consequences of that interpretation are
shown most dramatically by its potential application to ordi-
nary homeowners with septic tanks, a problem that the EPA
highlighted in a recent Interpretive Statement. See Inter-
pretive Statement on Application of the Clean Water Act
NPDES Program to Releases of Pollutants From a Point
Source to Groundwater, 84 Fed. Reg. 16824 (2019). Septic
systems—used by 26 million American homes—generally op-
erate by “discharging liquid effuent into perforated pipes
buried in a leach feld, chambers, or other special units de-
signed to slowly release the effuent into the soil.” Id., at
16812. That effuent then percolates through the soil and
“can in certain circumstances ultimately enter groundwater.”
Ibid.
8
Congress most certainly did not intend that ordinary
8
According to the EPA, numerous other conveyances that deposit pollut-
ants into groundwater could now require NPDES permits. “Activities
listed by commentators included aquifer recharge, leaks from sewage col-
lection systems, . . . treatment systems such as constructed wetlands, spills
and accidental releases, manure management, and coal ash impoundment
seepage.” 84 Fed. Reg. 16812. The County and amici also assert that

208 COUNTY
OF MAUI v. HAWAII WILDLIFE FUND
Alito, J., dissenting
homeowners with septic systems obtain NPDES permits—
or
that they face severe penalties for failing to do so. That,
however, is where this alternative interpretation would lead.
And the same is true for the test adopted by the Ninth
Circuit. The Ninth Circuit held that a permit is required if
a pollutant that reaches navigable waters is “fairly trace-
able,” but there is no real difference between “fairly trace-
able” and “originally from.” Unless a pollutant is “trace-
able” to a point source, how could that point source be
required to get a permit? And the addition of the qualifer
“fairly” does not seem to add anything. What would it mean
for a pollutant to be “unfairly traceable” to a point source?
Traceable only as a result of a method that is scientifcally
unsound? In that situation, why would a court consider the
pollutant to be traceable to the source in question at all? So
if a pollutant can be reliably determined to have originally
come from a point source, a permit would appear to be re-
quired under the Ninth Circuit's test.
Respondents, instead of defending the Ninth Circuit's in-
terpretation, argue that a discharge from a point source must
be the “proximate cause” of a pollutant's reaching navigable
waters. Brief for Respondents 12. But as the Court con-
cludes, ante, at 174, there is no basis for transplanting this
concept from the law of torts into the Clean Water Act, and
it is unclear what it would mean in that context.
For these reasons, of the two possible interpretations of
the statutory terms, the better is the interpretation that
reads “from” to mean “directly from.”
C
Even if the Court were to fnd § 1362(12) ambiguous, appli-
cable clear-statement rules foreclose the “functional equiva-
lent” standard and favor the test just described. The Court
respondents' theory would require permits for green infrastructure, water
reuse, and groundwater discharge. See, e. g., Brief for National Associa-
tion of Clean Water Agencies et al. as Amici Curiae 20–26.

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209
Alito, J., dissenting
has required a clear statement of congressional intent when
an
administrative agency seeks to interpret a statute in a
way that entails “a signifcant impingement of the States'
traditional and primary power over land and water use,”
Solid Waste Agency of Northern Cook Cty. v. Army Corps
of Engineers, 531 U. S. 159, 174 (2001) (SWANCC), and when
it adopts a new and expanded interpretation of a statute,
Utility Air Regulatory Group v. EPA, 573 U. S. 302 (2014)
(UARG). The same rules should apply here where what is
at issue is a new theory propounded by private plaintiffs.
First, the Court's “functional equivalent” test unquestion-
ably impinges on the States' traditional authority. In
SWANCC, the Court struck down the Army Corps of Engi-
neers' “Migratory Bird Rule” as inconsistent with the Clean
Water Act because the rule effectively displaced state au-
thority over land and water use. In this case, the federalism
interest is even stronger because the Clean Water Act itself
assigns non-point-source-pollution regulation to the States
and explicitly recognizes and protects the state role in en-
vironmental protection. 33 U. S. C. § 1251(b). The “func-
tional equivalent” standard expands federal point-source
regulation at the expense of state non-point-source regula-
tion. And as a practical matter, States would be saddled
with the costs of increased NPDES permitting (because
States generally award permits in place of the EPA), while
exercising diminished control over non-point-source pollution
within their territory. See Brief for State of West Virginia
et al. as Amici Curiae 27–34.
Second, the Court's test offends the clear-statement rule
recognized in UARG by expanding the authority of the EPA.
Congress must speak clearly if it “wishes to assign to an
agency decisions of vast `economic and political signif-
cance.' ” 573 U. S., at 324 (quoting FDA v. Brown & Wil-
l i am so n Tobacco Co r p., 529 U. S. 120, 160 (2000)). In
UARG, the EPA had promulgated greenhouse-gas emission
standards for stationary sources that “constitute[d] an `un-

210 COUNTY
OF MAUI v. HAWAII WILDLIFE FUND
Alito, J., dissenting
precedented expansion of EPA authority that would have a
profound
effect on virtually every sector of the economy and
touch every household in the land.' ” 573 U. S., at 310–311
(quoting 73 Fed. Reg. 44355 (2008)). The statutory scheme,
designed for large stationary sources like factories, would
have been extended to smaller sources like hotels and retail
establishments. The number of permits (and associated ex-
penses) would have skyrocketed.
Here, as the EPA explained in a recent Interpretive State-
ment, the Fourth and Ninth Circuit “discharge” tests—which
I struggle to distinguish from the “functional equivalent”
formulation—broaden the Act's coverage to “potentially
swee[p] into the scope of the statute commonplace and ubiq-
uitous activities such as releases from homeowners' backyard
septic systems.” 84 Fed. Reg. 16823.
IV
The Court does little to justify its newfound standard,
other than to point to certain past EPA enforcement actions,
see ante, at 177, 185, but the EPA's position on the regulation
of groundwater has been anything but consistent. It is true,
as the Court recounts, that the EPA has required NPDES
permits for the discharge of some pollutants that migrate
through groundwater before reaching navigable waters.
See ante, at 177. But the EPA has contradicted itself on
this important question multiple times. See Brief for Edi-
son Electric Institute et al. as Amici Curiae 21–32 (review-
ing EPA NPDES interpretations and permitting practices).
In the Act's earliest years, the EPA deputy general coun-
sel wrote in a formal memorandum that “[d]ischarges into
ground waters” do not require NPDES permits. Memoran-
dum to EPA Region IX Regional Counsel 2–3 (Dec. 13,
1973).
9
More recently, the EPA recognized “conficting legal
9
This early understanding, as the Court describes, is consistent with
the legislative history, which shows that Congress intentionally left regu-
lation of groundwater pollution to the States. See ante, at 176–177.

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as: 590 U. S. 165 (2020)
211
Alito, J., dissenting
precedents” on this question. Compare NPDES Permit
Reg
ulation and Effuent Limitation Guidelines and Stand-
ards for Concentrated Animal Feeding Operations (CAFOs),
68 Fed. Reg. 7216 (2003), with 66 Fed. Reg. 3018 (2001).
Similarly, in its 2019 Interpretive Statement, the EPA ac-
knowledged its “[l]ack of consistent and comprehensive di-
rection” on this issue. See 84 Fed. Reg. 16820; see also Brief
for Edison Electric Institute et al. as Amici Curiae 21–32
(recounting EPA historical approach to NPDES permitting).
But it added that “the best, if not the only, reading of the
[Act] is that all releases to groundwater are excluded from
the scope of the NPDES program, even where pollutants are
conveyed to jurisdictional surface waters via groundwater.”
84 Fed. Reg. 16814.
In short, the EPA's inconsistent position on the groundwa-
ter issue does not provide a suffcient basis for the Court's
new “functional equivalent” test.
***
The Court adopts a nebulous standard, enumerates a non-
exhaustive list of potentially relevant factors, and washes its
hands of the problem. We should not require regulated par-
ties to “feel their way on a case-by-case basis” where the
costs of uncertainty are so great. Rapanos, 547 U. S., at 758
(Roberts, C. J., concurring). The Court's decision invites
“arbitrary and inconsistent decisionmaking.” UARG, 573
U. S., at 350 (Alito, J., concurring in part and dissenting in
part). And “[t]hat is not what the Clean [Water] Act con-
templates.” Ibid.
I would reverse the judgment below and instruct the
lower courts to apply the test set out above. I therefore
respectfully dissent.

212 OCTOBER
TERM, 2019
Syllabus
ROMAG FASTENERS, INC. v. FOSSIL GROUP, INC.,
fka
FOSSIL, INC., et al.
certiorari to the united states court of appeals for
the federal circuit
No. 18–1233. Argued January 14, 2020—Decided April 23, 2020
Romag Fasteners, Inc., and Fossil, Inc., signed an agreement to use Ro-
mag 's fasteners in Fossil's leather goods. Romag eventually discovered
that factories in China making Fossil products were using counterfeit
Romag fasteners. Romag sued Fossil and certain retailers of Fossil
products (collectively, Fossil) for trademark infringement pursuant to 15
U. S. C. § 1125(a). Relying on Second Circuit precedent, the district
court rejected Romag 's request for an award of profts, because the jury,
while fnding that Fossil had acted callously, rejected Romag 's accusa-
tion that Fossil had acted willfully.
Held: A plaintiff in a trademark infringement suit is not required to show
that a defendant willfully infringed the plaintiff 's trademark as a pre-
condition to a profts award. The Lanham Act provision governing
remedies for trademark violations, § 1117(a), makes a showing of willful-
ness a precondition to a profts award in a suit under § 1125(c) for trade-
mark dilution, but § 1125(a) has never required such a showing. Read-
ing words into a statute should be avoided, especially when they are
included elsewhere in the very same statute. That absence seems all
the more telling here, where the Act speaks often, expressly, and with
considerable care about mental states. See, e. g., §§ 1117(b), (c), 1118.
Poi nti ng to § 1117(a)'s lang uage i ndicati ng that a v i olati on under
§ 1125(a) can trigger an award of the defendant's profts “subject to the
principles of equity,” Fossil argues that equity courts historically re-
quired a showing of willfulness before authorizing a profts remedy in
trademark disputes. But this suggestion relies on the curious assump-
tion that Congress intended to incorporate a willfulness requirement
here obliquely while it prescribed mens rea conditions expressly else-
where throughout the Act. Nor is it likely that Congress meant to di-
rect “principles of equity”—a term more naturally suggesting funda-
mental rules that apply more systematically across claims and practice
areas—to a narrow rule about a profts remedy within trademark law.
Even crediting Fossil's assumption, all that can be said with certainty is
that pre-Lanham Act case law supports the ordinary principle that a
defendant's mental state is relevant to assigning an appropriate remedy.
The place for reconciling the competing and incommensurable policy
goals advanced by the parties is before policymakers. Pp. 214–220.

Cite
as: 590 U. S. 212 (2020)
213
Opinion of the Court
Vacated and remanded.
Gorsuch,
J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Ginsburg, Breyer, Alito, Kagan, and Kavanaugh,
JJ., joined. Alito, J., fled a concurring opinion, in which Breyer and
Kagan, JJ., joined, post, p. 220. Sotomayor, J., fled an opinion concur-
ring in the judgment, post, p. 220.
Lisa S. Blatt argued the cause for petitioner. With her
on the briefs were Amy Mason Saharia, A. Joshua Podoll,
Jonathan Freiman, and Jody P. Ellant.
Neal Kumar Katyal argued the cause for respondents.
With him on the brief were Kirti Datla, Jeffrey E. Dupler,
Lawrence Brocchini, Lauren S. Albert, and Thomas P.
Schmidt.*
Justice Gorsuch delivered the opinion of the Court.
When it comes to remedies for trademark infringement,
the Lanham Act authorizes many. A district court may
award a winning plaintiff injunctive relief, damages, or the
defendant's ill-gotten profts. Without question, a defend-
ant's state of mind may have a bearing on what relief a plain-
tiff should receive. An innocent trademark violator often
stands in very different shoes than an intentional one. But
some circuits have gone further. These courts hold a plain-
tiff can win a profts remedy, in particular, only after show-
ing the defendant willfully infringed its trademark. The
question before us is whether that categorical rule can be
reconciled with the statute's plain language.
*Briefs of amici curiae urging reversal were fled for the American Bar
Association by Judy Perry Martinez and Travis R. Wimberly; and for the
Intellectual Property Law Association of Chicago by Patrick G. Burns,
Amy C. Ziegler, Charles W. Shifey, and Robert H. Resis.
Mark A. Lemley and Phillip R. Malone fled a brief for Intellectual
Property Law Professors as amici curiae urging affrmance.
Briefs of amici curiae were fled for the American Intellectual Property
Law Association by Sheldon H. Klein, Dean C. Eyler, and Kirsten E.
Donaldson; for the Intellectual Property Owners Association by Kevin H.
Rhodes, Paul H. Berghoff, Eric R. Moran, and Nicole E. Grimm; and for
the International Trademark Association by Lawrence K. Nodine.

214 ROMA
G FASTENERS, INC. v. FOSSIL GROUP, INC.
Opinion of the Court
The question comes to us in a case involving handbag fas-
teners.
Romag sells magnetic snap fasteners for use in
leather goods. Fossil designs, markets, and distributes a
wide range of fashion accessories. Years ago, the pair
signed an agreement allowing Fossil to use Romag 's fasten-
ers in Fossil's handbags and other products. Initially, both
sides seemed content with the arrangement. But in time
Romag discovered that the factories Fossil hired in China to
make its products were using counterfeit Romag fasteners—
and that Fossil was doing little to guard against the practice.
Unable to resolve its concerns amicably, Romag sued. The
company alleged that Fossil had infringed its trademark and
falsely represented that its fasteners came from Romag.
After trial, a jury agreed with Romag, and found that Fossil
had acted “in callous disregard” of Romag 's rights. At the
same time, however, the jury rejected Romag 's accusation
that Fossil had acted willfully, as that term was defned by
the district court.
For our purposes, the last fnding is the important one.
By way of relief for Fossil's trademark violation, Romag
sought (among other things) an order requiring Fossil to
hand over the profts it had earned thanks to its trademark
violation. But the district court refused this request. The
court pointed out that controlling Second Circuit precedent
requires a plaintiff seeking a profts award to prove that the
defendant's violation was willful. Not all circuits, however,
agree with the Second Circuit's rule. We took this case to
resolve that dispute over the law's demands. 588 U. S. 919
(2019).
Where does Fossil's proposed willfulness rule come from?
The relevant section of the Lanham Act governing remedies
for trademark violations, § 35, 60 Stat. 439–440, as amended,
15 U. S. C. § 1117(a), says this:
“When a violation of any right of the registrant of a
mark registered in the Patent and Trademark Offce, a
violation under section 1125(a) or (d) of this title, or a

Cite
as: 590 U. S. 212 (2020)
215
Opinion of the Court
willful violation under section 1125(c) of this title, shall
have
been established . . . , the plaintiff shall be entitled,
subject to the provisions of sections 1111 and 1114 of
this title, and subject to the principles of equity, to re-
cover (1) defendant's profts, (2) any damages sustained
by the plaintiff, and (3) the costs of the action.”
Immediately, this language spells trouble for Fossil and
the circuit precedent on which it relies. The statute does
make a showing of willfulness a precondition to a profts
award when the plaintiff proceeds under § 1125(c). That sec-
tion, added to the Lanham Act some years after its initial
adoption, creates a cause of action for trademark dilution—
conduct that lessens the association consumers have with a
trademark. But Romag alleged and proved a violation of
§ 1125(a), a provision establishing a cause of action for the
false or misleading use of trademarks. And in cases like
that, the statutory language has never required a showing
of willfulness to win a defendant's profts. Yes, the law
tells us that a profts award is subject to limitations found
in §§ 1111 and 1114. But no one suggests those cross-
referenced sections contain the rule Fossil seeks. Nor does
this Court usually read into statutes words that aren't there.
It's a temptation we are doubly careful to avoid when Con-
gress has (as here) included the term in question elsewhere
in the very same statutory provision.
A wider look at the statute's structure gives us even more
reason for pause. The Lanham Act speaks often and ex-
pressly about menta l states. Secti on 1117( b) requires
courts to treble profts or damages and award attorney's fees
when a defendant engages in certain acts intentionally and
with specifed knowledge. Section 1117(c) increases the cap
on statutory damages from $200,000 to $2,000,000 for certain
willful violations. Section 1118 permits courts to order the
infringing items be destroyed if a plaintiff proves any viola-
tion of § 1125(a) or a willful violation of § 1125(c). Section
1114 makes certain innocent infringers subject only to in-

216 ROMA
G FASTENERS, INC. v. FOSSIL GROUP, INC.
Opinion of the Court
junctions. Elsewhere, the statute specifes certain mens
rea
standards needed to establish liability, before even get-
ting to the question of remedies. See, e. g., §§ 1125(d)(1)
(A)(i), (B)(i) (prohibiting certain conduct only if undertaken
with “bad faith intent” and listing nine factors relevant to
ascertaining bad faith intent). Without doubt, the Lanham
Act exhibits considerable care with mens rea standards.
The absence of any such standard in the provision before us,
thus, seems all the more telling.
So how exactly does Fossil seek to conjure a willfulness
requirement out of § 1117(a)? Lacking any more obvious
statutory hook, the company points to the language indicat-
ing that a violation under § 1125(a) can trigger an award of
the defendant's profts “subject to the principles of equity.”
§ 1117(a). In Fossil's telling, equity courts historically re-
quired a showing of willfulness before authorizing a profts
remedy in trademark disputes. Admittedly, equity courts
didn't require so much in patent infringement cases and
other arguably analogous suits. See, e. g., Dowagiac Mfg.
Co. v. Minnesota Moline Plow Co., 235 U. S. 641, 644, 650–
651 (1915). But, Fossil says, trademark is different. There
alone, a willfulness requirement was so long and universally
recognized that today it rises to the level of a “principle of
equity” the Lanham Act carries forward.
It's a curious suggestion. Fossil's contention that the
term “principles of equity” includes a willfulness require-
ment would not directly contradict the statute's other, ex-
press mens rea provisions or render them wholly superfu-
ous. But it would require us to assume that Congress
intended to incorporate a willfu lness requirement here
obliquely while it prescribed mens rea conditions expressly
elsewhere throughout the Lanham Act. That might be pos-
sible, but on frst blush it isn't exactly an obvious construc-
tion of the statute.
Nor do matters improve with a second look. The phrase
“principles of equity” doesn't readily bring to mind a sub-

Cite
as: 590 U. S. 212 (2020)
217
Opinion of the Court
stantive rule about mens rea from a discrete domain like
trademark
law. In the context of this statute, it more natu-
rally suggests fundamental rules that apply more systemati-
cally across claims and practice areas. A principle is a “fun-
damental truth or doctrine, as of law; a comprehensive rule
or doctrine which furnishes a basis or origin for others.”
Black's Law Dictionary 1417 (3d ed. 1933); Black's Law Dic-
tionary 1357 (4th ed. 1951). And treatises and handbooks on
the “principles of equity” generally contain transsubstantive
guidance on broad and fundamental questions about matters
like parties, modes of proof, defenses, and remedies. See,
e. g., E. Merwin, Principles of Equity and Equity Pleading
(1895); J. Indermaur & C. Thwaites, Manual of the Princi-
ples of Equity (7th ed. 1913); H. Smith, Practical Exposition
of the Principles of Equity (5th ed. 1914); R. Megarry, Snell's
Principles of Equity (23d ed. 1947). Our precedent, too, has
used the term “principles of equity” to refer to just such
transsubstantive topics. See, e. g., eBay Inc. v. Me rc-
Exchange, L. L. C., 547 U. S. 388, 391, 393 (2006); Holmberg
v. Armbrecht, 327 U. S. 392, 395 (1946). Congress itself has
elsewhere used “equitable principles” in just this way: An
amendment to a different section of the Lanham Act lists
“laches, estoppel, and acquiescence” as examples of “equita-
ble principles.” 15 U. S. C. § 1069. Given all this, it seems
a little unlikely Congress meant “principles of equity” to di-
rect us to a narrow rule about a profts remedy within trade-
mark law.
But even if we were to spot Fossil that frst essential
premise of its argument, the next has problems too. From
the record the parties have put before us, it's far from clear
whether trademark law historically required a showing of
willfulness before allowing a profts remedy. The Trade-
mark Act of 1905—the Lanham Act's statutory predecessor
which many earlier cases interpreted and applied—did not
mention such a requirement. It's true, as Fossil notes, that
some courts proceeding before the 1905 Act, and even some

218 ROMA
G FASTENERS, INC. v. FOSSIL GROUP, INC.
Opinion of the Court
later cases following that Act, did treat willfulness or some-
th
ing like it as a prerequisite for a profts award and rarely
authorized profts for purely good-faith infringement. See,
e. g., Horlick's Malted Milk Corp. v. Horluck's, Inc., 51 F. 2d
357, 359 (WD Wash. 1931) (explaining that the plaintiff “can-
not recover defendant's profts unless it has been shown be-
yond a reasonable doubt that defendant was guilty of willful
fraud in the use of the enjoined trade-name”); see also Sax-
lehner v. Siegel-Cooper Co., 179 U. S. 42, 42–43 (1900) (hold-
ing that one defendant “should not be required to account
for gains and profts” when it “appear[ed] to have acted in
good faith”). But Romag cites other cases that expressly
rejected any such rule. See, e. g., Oakes v. Tonsmierre, 49
F. 447, 453 (CC SD Ala. 1883); see also Stonebraker v. Stone-
braker, 33 Md. 252, 268 (1870); Lawrence-Williams Co. v. So-
ciete Enfants Gombault et Cie, 52 F. 2d 774, 778 (CA6 1931).
The confusion doesn't end there. Other authorities ad-
vanced still different understandings about the relationship
between mens rea and profts awards in trademark cases.
See, e. g., H. Nims, Law of Unfair Competition and Trade-
Marks § 424 (2d ed. 1917) (“An accounting will not be ordered
where the infringing party acted innocently and in ignorance
of the plaintiff's rights”); N. Hesseltine, Digest of the Law of
Trade-Marks and Unfair Trade 305 (1906) (contrasting a case
holding “[n]o account as to profts allowed except as to user
after knowledge of plaintiff 's right to trade-mark” and one
permitting profts “although defendant did not know of in-
fringement” (emphasis added)). And the vast majority of
the cases both Romag and Fossil cite simply failed to speak
clearly to the issue one way or another. See, e. g., Hostetter
v. Vowinkle, 12 F. Cas. 546, 547 (No. 6,714) (CC Neb. 1871);
Graham v. Plate, 40 Cal. 593, 597–599 (1871); Hemmeter
Cigar Co. v. Congress Cigar Co., 118 F. 2d 64, 71–72 (CA6
1941).
At the end of it all, the most we can say with certainty
is this. Mens rea fgured as an important consideration in

Cite
as: 590 U. S. 212 (2020)
219
Opinion of the Court
awarding profts in pre-Lanham Act cases. This refects the
ordi
nary, transsubstantive principle that a defendant's men-
tal state is relevant to assigning an appropriate remedy.
That principle arises not only in equity, but across many legal
contexts. See, e. g., Smith v. Wade, 461 U. S. 30, 38–51
(1983) (42 U. S. C. § 1983); Morissette v. United States, 342
U. S. 246, 250–263 (1952) (criminal law); Wooden-Ware Co. v.
United States, 106 U. S. 432, 434–435 (1882) (common law
trespass). It's a principle refected in the Lanham Act's
text, too, which permits greater statutory damages for cer-
tain willful violations than for other violations. 15 U. S. C.
§ 1117(c). And it is a principle long refected in equity prac-
tice where district courts have often considered a defendant's
mental state, among other factors, when exercising their dis-
cretion in choosing a ftting remedy. See, e. g., L. P. Larson,
Jr., Co. v. Wm. Wrigley, Jr., Co., 277 U. S. 97, 99–100 (1928);
Lander v. Lujan, 888 F. 2d 153, 155–156 (CADC 1989);
United States v. Klimek, 952 F. Supp. 1100, 1117 (ED Pa.
1997). Given these traditional principles, we do not doubt
that a trademark defendant's mental state is a highly impor-
tant consideration in determining whether an award of
profts is appropriate. But acknowledging that much is a far
cry from insisting on the infexible precondition to recovery
Fossil advances.
With little to work with in the statute's language, struc-
ture, and history, Fossil ultimately rests on an appeal to pol-
icy. The company tells us that stouter restraints on profts
awards are needed to deter “baseless” trademark suits.
Meanwhile, Romag insists that its reading of the statute will
promote greater respect for trademarks in the “modern
global economy.” As these things go, amici amplify both
sides' policy arguments. Maybe, too, each side has a point.
But the place for reconciling competing and incommensura-
ble policy goals like these is before policymakers. This
Court's limited role is to read and apply the law those policy-
makers have ordained, and here our task is clear. The judg-

220 ROMA
G FASTENERS, INC. v. FOSSIL GROUP, INC.
Sotomayor, J., concurring in judgment
ment of the court of appeals is vacated, and the case is re-
manded
for further proceedings consistent with this opinion.
It is so ordered.
Justice Alito, with whom Justice Breyer and Justice
Kagan join, concurring.
We took this case to decide whether willful infringement
is a prerequisite to an award of profts under 15 U. S. C.
§ 1117(a). The Federal Circuit held that willfulness is such
a prerequisite. Romag Fasteners, Inc. v. Fossil, Inc., 817 F.
3d 782, 791 (2016). That is incorrect. The relevant authori-
ties, particularly pre-Lanham Act case law, show that willful-
ness is a highly important consideration in awarding profts
under § 1117(a), but not an absolute precondition. I would
so hold and concur on that ground.
Justice Sotomayor, concurring in the judgment.
I agree that 15 U. S. C. § 1117(a) does not impose a “will-
fulness” prerequisite for awarding profts in trademark
infringement actions. Courts of equity, however, defned
“w i l lfu lness” to encompass a range of cu lpable ment a l
states—including the equivalent of recklessness, but exclud-
ing “good faith” or negligence. See 5 McCarthy on Trade-
marks and Unfair Competition § 30:62 (5th ed. 2019) (explain-
ing that “willfulness” ranged from fraudulent and knowing to
reckless and indifferent behavior); see also, e. g., Lawrence-
Williams Co. v. Societe Enfants Gombault et Cie, 52 F. 2d
774, 778 (CA6 1931); Regis v. Jaynes, 191 Mass. 245, 248–249,
77 N. E. 774, 776 (1906).
The majority suggests that courts of equity were just as
likely to award profts for such “willful” infringement as they
were for “innocent” infringement. Ante, at 218. But that
does not refect the weight of authority, which indicates that
profts were hardly, if ever, awarded for innocent infringe-
ment. See, e. g., Wood v. Peffer, 55 Cal. App. 2d 116, 125
(1942) (explaining that “equity constantly refuses, for want
of fraudulent intent, the prayer for an accounting of profts”);

Cite
as: 590 U. S. 212 (2020)
221
Sotomayor, J., concurring in judgment
Globe-Wernicke Co. v. Safe-Cabinet Co., 110 Ohio St. 609,
617,
144 N. E. 711, 713 (1924) (“By the great weight of au-
thority, particularly where the infringement . . . was deliber-
ate and willful, it is held that the wrongdoer is required to
account for all profts realized by him as a result of his
wrongful acts”); Dickey v. Mutual Film Corp., 186 App. Div.
701, 702, 174 N. Y. S. 784 (1919) (declining to award profts
because there was “no proof of any fraudulent intent upon
the part of the defendant”); Standard Cigar Co. v. Gold-
smith, 58 Pa. Super. 33, 37 (1914) (reasoning that a defendant
“should be compelled to account for . . . profts” where “the
infringement complained of was not the result of mistake or
ignorance of the plaintiff's right”). Nor would doing so
seem to be consistent with longstanding equitable principles
which, after all, seek to deprive only wrongdoers of their
gains from misconduct. Cf. Duplate Corp. v. Triplex Safety
Glass Co., 298 U. S. 448, 456–457 (1936). Thus, a district
court's award of profts for innocent or good-faith trademark
infringement would not be consonant with the “principles of
equity” referenced in § 1117(a) and refected in the cases the
majority cites. Ante, at 218–219.
Because the majority is agnostic about awarding profts
for both “willful” and innocent infringement as those terms
have been understood, I concur in the judgment only.

222 OCTOBER
TERM, 2019
Syllabus
BARTON v. BARR, ATTORNEY GENERAL
certiorari
to the united states court of appeals for
the eleventh circuit
No. 18–725. Argued November 4, 2019—Decided April 23, 2020
When a lawful permanent resident commits certain serious crimes, the
Government may initiate removal proceedings before an immigration
judge. 8 U. S. C. § 1229a. If the lawful permanent resident is found
removable, the immigration judge may cancel removal, but only if the
lawful permanent resident meets strict statutory eligibility require-
ments. §§ 1229b(a), 1229b(d)(1)(B).
Over the span of 12 years, lawful permanent resident Andre Barton
was convicted of state crimes, including a frearms offense, drug of-
fenses, and aggravated assault offenses. An Immigration Judge found
him removable based on his state frearms and drug offenses. Barton
applied for cancellation of removal. Among the eligibility require-
ments, a lawful permanent resident must have “resided in the United
States continuously for 7 years after having been admitted in any sta-
tus.” § 1229b(a)(2). Another provision, the so-called stop-time rule,
provides that a continuous period of residence “shall be deemed to end”
when the lawful permanent resident commits “an offense referred to in
section 1182(a)(2) . . . that renders the alien inadmissible to the United
States under section 1182(a)(2).” § 1229b(d)(1)(B). Because Barton's
aggravated assault offenses were committed within his frst seven years
of admission and were covered by § 1182(a)(2), the Immigration Judge
concluded that Barton was not eligible for cancellation of removal. The
Board of Immigration Appeals and the Eleventh Circuit agreed.
Held: For purposes of cancellation-of-removal eligibility, a § 1182(a)(2) of-
fense committed during the initial seven years of residence does not
need to be one of the offenses of removal. Pp. 229–240.
(a) The cancellation-of-removal statute functions like a traditional re-
cidivist sentencing statute, making a noncitizen's prior crimes relevant
to eligibility for cancellation of removal. The statute's text clarifes two
points relevant here. First, cancellation of removal is precluded when,
during the initial seven years of residence, the noncitizen “committed
an offense referred to in section 1182(a)(2),” even if (as in Barton's case)
the conviction occurred after the seven years elapsed. Second, the of-
fense must “rende[r] the alien inadmissible” as a result. For crimes
involving moral turpitude, the relevant category here, § 1182(a)(2) pro-
vides that a noncitizen is rendered “inadmissible” when he is convicted
of or admits the offense. § 1182(a)(2)(A)(i).

Cite
as: 590 U. S. 222 (2020)
223
Syllabus
As a matter of statutory text and structure, the analysis here is
straightfor
ward. Barton's aggravated assault offenses were crimes
i nvolv i ng mora l tur pitude and therefore “referred to i n sec ti on
1182(a)(2).” He committed the offenses during his initial seven years
of residence and was later convicted of the offenses, thereby rendering
him “inadmissible.” Barton was, therefore, ineligible for cancellation
of removal. Pp. 229–233.
(b) Barton's counterarguments are unpersuasive. First, he claims
that the statute's structure supports an “offense of removal” approach.
But § 1227(a)(2) offenses—not § 1182(a)(2) offenses—are ordinarily the
basis for removal of lawful permanent residents. Therefore, Barton's
structural argument falls apart. If he were correct, the statute pre-
sumably would specify offenses “referred to in section 1182(a)(2) or
section 1227(a)(2).” By contrast, some other immigration law provi-
sions do focus only on the offense of removal, and their statutory text
and context support that limitation. See, e. g., §§ 1226(a), (c)(1)(A),
1252(a)(2)(C).
Second, seizing on the statutory phrase “committed an offense re-
ferred to in section 1182(a)(2) . . . that renders the alien inadmissible
to the United States under section 1182(a)(2),” § 1229b(d)(1)(B), Barton
argues that a noncitizen is rendered “inadmissible” when actually adju-
dicated as inadmissible and denied admission to the United States, some-
thing that usually cannot happen to a lawfully admitted noncitizen. But
the statutory text employs the term “inadmissibility” as a status that
can result from, e. g., a noncitizen's (including a lawfully admitted noncit-
izen's) commission of certain offenses listed in § 1182(a)(2). See, e. g.,
§§ 1182(a)(2)(A)(i), (B). And Congress has made that status relevant in
several statutory contexts that apply to lawfully admitted noncitizens
such as Barton. In those contexts, a noncitizen faces immigration con-
sequences from being convicted of a § 1182(a)(2) offense even though the
noncitizen is lawfully admitted and is not necessarily removable solely
because of that offense. See, e. g., §§ 1160(a)(1)(C), (a)(3)(B)(ii). Such
examples pose a major hurdle for Barton's textual argument, and Barton
has no persuasive answer.
Third, Barton argues that the Government's interpretation treats as
surplusage the phrase “or removable from the United States under sec-
tion 1227(a)(2) or 1227(a)(4).” But redundancies are common in statu-
tory drafting. The Court has often recognized that sometimes the bet-
ter overall reading of a statute contains some redundancy. And
redundancy in one portion of a statute is not a license to rewrite or
eviscerate another portion of the statute contrary to its text.
Finally, Barton argues alternatively that, even if inadmissibility is a
status, and even if the offense that precludes cancellation of removal
need not be one of the offenses of removal, a noncitizen must at least

224 B
ARTON v. BARR
Opinion of the Court
have been capable of being charged with a § 1182(a)(2) inadmissibility
offense
as the basis for removal. Because the cancellation-of-removal
statute is a recidivist statute, however, whether the offense that pre-
cludes cancellation of removal was charged or could have been charged
as one of the offenses of removal is irrelevant. Pp. 233–240.
904 F. 3d 1294, affrmed.
Kavanaugh, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, and Gorsuch, JJ., joined. Sotomayor, J., fled
a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined,
post, p. 240.
Adam G. Unikowsky argued the cause for petitioner.
With him on the briefs were Lauren J. Hartz and H. Glenn
Fogle, Jr.
Frederick Liu argued the cause for respondent. With
him on the brief were Solicitor General Francisco, Assist-
ant Attorney General Hunt, Deputy Solicitor General
Kneedler, Donald E. Keener, John W. Blakeley, Patrick J.
Glen, and Timothy G. Hayes.*
Justice Kavanaugh delivered the opinion of the Court.
Under the immigration laws, a noncitizen who is author-
ized to live permanently in the United States is a lawful per-
manent resident—also commonly known as a green-card
holder. But unlike a U. S. citizen, a lawful permanent resi-
dent who commits a serious crime may be removed from the
United States.
Andre Barton is a Jamaican national and a longtime lawful
permanent resident of the United States. During his time
*Briefs of amici curiae urging reversal were fled for the Capital Area
Immigrants' Rights Coalition by Susan Baker Manning; for Former
United States Immigration Judges by David G. Keyko, Robert L. Sills,
and Eric Epstein; for the National Immigrant Justice Center et al. by
Jean-Claude André and Charles Roth; and for Momodoulamin Jobe et al.
by Ari Holtzblatt and Noah A. Levine.
Nancy M o raw e tz fi led a br ief for Immigration Law Professors as
amici curiae.

Cite
as: 590 U. S. 222 (2020)
225
Opinion of the Court
in the United States, Barton has been convicted of state
cr
imes on three separate occasions spanning 12 years. The
crimes include a frearms offense, drug offenses, and aggra-
vated assault offenses. By law, the frearms offense and the
drug offenses each independently rendered Barton eligible
for removal from the United States. In September 2016,
the U. S. Government sought to remove Barton, and a U. S.
Immigration Judge determined that Barton was removable.
Barton applied for cancellation of removal, a form of relief
that allows a noncitizen to remain in the United States de-
spite being found removable. The immigration laws author-
ize an immigration judge to cancel removal, but Congress
has est abl ished str ic t el ig ibi l ity requirements. See 8
U. S. C. §§ 1229b(a), (d)(1)(B). For a lawful permanent resi-
dent such as Barton, the applicant for cancellation of removal
(1) must have been a lawful permanent resident for at least
fve years; (2) must have continuously resided in the United
States for at least seven years after lawful admission; (3)
must not have been convicted of an aggravated felony as de-
fned in the immigration laws; and (4) during the initial seven
years of continuous residence, must not have committed cer-
tain other offenses listed in 8 U. S. C. § 1182(a)(2). If a law-
ful permanent resident meets those eligibility requirements,
the immigration judge has discretion to (but is not required
to) cancel removal and allow the lawful permanent resident
to remain in the United States.
Under the cancellation-of-removal statute, the immigra-
tion judge examines the applicant's prior crimes, as well as
the offense that triggered his removal. If a lawful perma-
nent resident has ever been convicted of an aggravated fel-
ony, or has committed an offense listed in § 1182(a)(2) during
the initial seven years of residence, that criminal record will
preclude cancellation of removal.
1
In that way, the statute
1
As the statute makes clear, and as we discuss below, committing a
§ 1182(a)(2) offense precludes cancellation of removal only if the offense
also “renders” the noncitizen inadmissible. See in fra, at 233. Section

226 B
ARTON v. BARR
Opinion of the Court
operates like traditional criminal recidivist laws, which ordi-
nar
ily authorize or impose greater sanctions on offenders
who have committed prior crimes.
In this case, after fnding Barton removable based on his
state frearms and drug offenses, the Immigration Judge and
the Board of Immigration Appeals (BIA) concluded that Bar-
ton was not eligible for cancellation of removal. Barton had
committed offenses listed in § 1182(a)(2) during his initial
seven years of residence—namely, his state aggravated as-
sault offenses in 1996. Barton's 1996 aggravated assault of-
fenses were not the offenses that triggered his removal.
But according to the BIA, and contrary to Barton's argu-
ment, the offense that precludes cancellation of removal need
not be one of the offenses of removal. In re Jurado-
Delgado, 24 I. & N. Dec. 29, 31 (BIA 2006). The U. S. Court
of Appeals for the Eleventh Circuit agreed with the BIA's
reading of the statute and concluded that Barton was not
eligible for cancellation of removal. The Second, Third, and
Fifth Circuits have similarly construed the statute; only the
Ninth Circuit has disagreed.
Barton argues that the BIA and the Eleventh Circuit mis-
interpreted the statute. He contends that the § 1182(a)(2)
offense that precludes cancellation of removal must be one
of the offenses of removal. We disagree with Barton, and
we affrm the judgment of the U. S. Court of Appeals for the
Eleventh Circuit.
I
Federal immigration law governs the admission of nonciti-
zens to the United States and the deportation of noncitizens
previ ously admitted. See 8 U. S. C. §§ 1182(a), 1227(a),
1229a.
2
The umbrella statutory term for being inadmissible
or deportable is “removable.” § 1229a(e)(2).
1182(a)(2) specifes what that means for each of its enumerated offenses.
For the offense at issue in this case, the noncitizen must also have been
convicted of or admitted the offense.
2
This opinion uses the term “noncitizen” as equivalent to the statutory
term “alien.” See 8 U. S. C. § 1101(a)(3).

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as: 590 U. S. 222 (2020)
227
Opinion of the Court
A noncitizen who is authorized to live permanently in the
U
nited States is a lawful permanent resident, often known
as a green-card holder. When a lawful permanent resident
commits a crime and is determined by an immigration judge
to be removable because of that crime, the Attorney General
(usually acting through an immigration judge) may cancel
removal. § 1229b(a). But the comprehensive immigration
law that Congress passed and President Clinton signed in
1996 tightly cabins eligibility for cancellation of removal.
See Illegal Immigration Reform and Immigrant Responsibil-
ity Act of 1996, 110 Stat. 3009–546, 8 U. S. C. § 1101 note.
For a lawful permanent resident, the cancellation-of-
removal statute provides that an immigration judge “may
cancel removal in the case of an alien who is inadmissible or
deportable from the United States if the alien—(1) has been
an alien lawfully admitted for permanent residence for not
less than 5 years, (2) has resided in the United States contin-
uously for 7 years after having been admitted in any status,
and (3) has not been convicted of any aggravated felony.”
§ 1229b(a).
3
The statute imposes one other requirement known as the
“stop-time rule.” As relevant here, the statute provides
that a lawful permanent resident, during the initial seven
years of residence, also cannot have committed “an offense
referred to in section 1182(a)(2) of this title that renders
the alien inadmissible to the United States under section
1182(a)(2) of this title or removable from the United States
under sec ti on 1227(a)(2) or 1227(a)(4) of th is title. ”
§ 1229b(d)(1)(B).
Andre Barton is a Jamaican national and a lawful perma-
nent resident of the United States. In 1996, he was con-
victed in a Georgia court of a frearms offense stemming
from an incident where Barton and a friend shot up the house
of Barton's ex-girlfriend. In separate proceedings in 2007
3
The immigration laws impose a similar but even stricter set of eligibil-
ity requirements for noncitizens who are not lawful permanent residents.
§ 1229b(b).

228 B
ARTON v. BARR
Opinion of the Court
and 2008, he was convicted in Georgia courts of state drug
offenses.
One case involved methamphetamine, and the
other involved cocaine and marijuana.
In 2016, the U. S. Government charged Barton with de-
portability under 8 U. S. C. § 1227(a)(2) based on the 1996
frearms offense and the 2007 and 2008 drug crimes. See
§§ 1227(a)(2)(B)(i), (C). Barton conceded that he was remov-
able based on his criminal convictions for the frearms of-
fense and drug offenses, and an Immigration Judge found
him removable.
Barton applied for cancellation of removal. All agree that
Barton meets two of the eligibility requirements for cancella-
tion of removal. He has been a lawful permanent resident
for more than fve years. And he has not been convicted of
an “aggravated felony,” as defned by the immigration laws.
The Immigration Judge concluded, however, that Barton
had committed an offense listed in § 1182(a)(2) during his ini-
tial seven years of residence. In 1996, 6 ½ years after his
admission to this country, Barton committed aggravated as-
sault offenses for which he was later convicted in a Georgia
court. The Immigration Judge concluded that those ag-
gravated assault offenses were covered by § 1182(a)(2) and
that Barton was therefore not eligible for cancellation of
removal.
The Board of Immigration Appeals and the U. S. Court
of Appeals for the Eleventh Circuit likewise concluded that
Barton was not eligible for cancellation of removal. Barton
v. United States Atty. Gen., 904 F. 3d 1294, 1302 (2018). The
key question was whether the offense that precludes cancel-
lation of removal (here, Barton's 1996 aggravated assault of-
fenses) must also be one of the offenses of removal.
4
The
Board of Immigration Appeals has long interpreted the stat-
4
The term “offense of removal” describes the offense that was the
ground on which the immigration judge, at the removal proceeding, found
the noncitizen removable.

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229
Opinion of the Court
ute to mean that “an alien need not actually be charged and
found
inadmissible or removable on the applicable ground
in order for the criminal conduct in question to terminate
continuous residence in this country” and preclude cancella-
tion of removal. Jurado-Delgado, 24 I. & N. Dec., at 31. In
this case, the Eleventh Circuit likewise indicated that the
§ 1182(a)(2) offense that precludes cancellation of removal
need not be one of the offenses of removal. 904 F. 3d, at
1299–1300. And the Second, Third, and Fifth Circuits have
similarly construed the statute. See Heredia v. Sessions,
865 F. 3d 60, 68 (CA2 2017); Ardon v. Attorney General of
United States, 449 Fed. Appx. 116, 118 (CA3 2011); Calix v.
Lynch, 784 F. 3d 1000, 1011 (CA5 2015).
But in 2018, the Ninth Circuit disagreed with those courts
and with the BIA. The Ninth Circuit ruled that a lawful
permanent resident's commission of an offense listed in
§ 1182(a)(2) makes the noncitizen ineligible for cancellation of
removal only if that offense was one of the offenses of re-
moval. Nguyen v. Sessions, 901 F. 3d 1093, 1097 (2018).
Under the Ninth Circuit's approach, Barton would have been
eligible for cancellation of removal because his § 1182(a)(2)
offenses (his 1996 aggravated assault offenses) were not
among the offenses of removal (his 1996 frearms offense and
his 2007 and 2008 drug crimes).
In light of the division in the Courts of Appeals over
how to interpret this statute, we granted certiorari. 587
U. S. 960 (2019).
II
A
Under the immigration laws, when a noncitizen has com-
mitted a serious crime, the U. S. Government may seek to
remove that noncitizen by initiating removal proceedings be-
fore an immigration judge. If the immigration judge deter-
mines that the noncitizen is removable, the immigration
judge nonetheless has discretion to cancel removal. But the

230 B
ARTON v. BARR
Opinion of the Court
immigration laws impose strict eligibility requirements for
cancel
lation of removal. To reiterate, a lawful permanent
resident such as Barton who has been found removable be-
cause of criminal activity is eligible for cancellation of re-
moval “if the alien—(1) has been an alien lawfully admitted
for permanent residence for not less than 5 years, (2) has
resided in the United States continuously for 7 years after
having been admitted in any status, and (3) has not been
convicted of any aggravated felony.” § 1229b(a).
To be eligible for cancellation of removal, the lawful per-
manent resident, during the initial seven years of residence
after admission, also must not have committed “an offense
referred to in section 1182(a)(2) of this title that renders
the alien inadmissible to the United States under sec-
tion 1182(a)(2) of this title or removable from the United
States under section 1227(a)(2) or 1227(a)(4) of this title.”
§ 1229b(d)(1)(B).
The law therefore fashions two distinct ways in which a
lawful permanent resident's prior crimes may preclude can-
cellation of removal.
The law precludes cancellation of removal if the lawful
permanent resident has been convicted of an “aggravated
felony” at any time. The statutory list of aggravated fel-
onies is long: murder, rape, drug traffcking, frearms traf-
fcking, obstruction of justice, treason, gambling, human
traffcking, and tax evasion, among many other crimes.
§§ 1101(a)(43)(A)–(U).
In addition, the law precludes cancellation of removal if
the lawful permanent resident committed certain other seri-
ous crimes during the initial seven years of residence. The
law defnes those offenses by cross-referencing § 1182(a)(2),
which specifes the offenses that can render a noncitizen “in-
admissible” to the United States. Section 1182(a)(2) in-
cludes “crime[s] involving moral turpitude,” which is a gen-
eral category that covers a wide variety of crimes. Section
1182(a)(2) also expressly encompasses various violations of

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231
Opinion of the Court
drug laws, prostitution, money laundering, and certain DUIs
i
nvolving personal injury, among other crimes. §§ 1182(a)
(2)(A)(i), (C), (D), (E), (I); see § 1101(h).
In specifying when cancellation of removal would be pre-
cluded because of prior criminal activity, Congress struck a
balance that considers both the nature of the prior crime and
the length of time that the noncitizen has resided in the
United States. If a lawful permanent resident has been con-
victed at any time of certain crimes (what the immigration
laws refer to as an “aggravated felony”), then the noncitizen
is not eligible for cancellation of removal. If during the ini-
tial 7-year period of residence, a lawful permanent resident
committed certain other offenses referred to in § 1182(a)(2),
then the noncitizen likewise is not eligible for cancellation
of removal.
In providing that a noncitizen's prior crimes (in addition
to the offense of removal) can render him ineligible for
cancellation of removal, the cancellation-of-removal statute
functions like a traditional recidivist sentencing statute. In
an ordinary criminal case, a defendant may be convicted of a
particular criminal offense. And at sentencing, the defend-
ant's other criminal offenses may be relevant. So too in the
immigration removal context. A noncitizen may be found
removable based on a certain criminal offense. In applying
for cancellation of removal, the noncitizen must detail his
entire criminal record on Form EOIR–42A. An immigra-
tion judge then must determine whether the noncitizen has
been convicted of an aggravated felony at any time or has
committed a § 1182(a)(2) offense during the initial seven
years of residence. It is entirely ordinary to look beyond
the offense of conviction at criminal sentencing, and it is like-
wise entirely ordinary to look beyond the offense of removal
at the cancellation-of-removal stage in immigration cases.
5
5
If the offense of removal itself was an aggravated felony or was an
offense listed in § 1182(a)(2) that was committed during the initial seven
years of residence, then the offense of removal alone precludes cancellation

232 B
ARTON v. BARR
Opinion of the Court
It is not surprising, moreover, that Congress required im-
migrati
on judges considering cancellation of removal to look
in part at whether the noncitizen has committed any offenses
listed in § 1182(a)(2). The offenses listed in § 1182(a)(2) help
determine whether a noncitizen should be admitted to the
United States. Under the cancellation-of-removal statute,
immigration judges must look at that same category of of-
fenses to determine whether, after a previously admitted
noncitizen has been determined to be deportable, the nonciti-
zen should nonetheless be allowed to remain in the United
States. If a crime is serious enough to deny admission to a
noncitizen, the crime can also be serious enough to preclude
cancellation of removal, at least if committed during the ini-
tial seven years of residence.
Importantly, the text of the cancellation-of-removal stat-
ute does not simply say that cancellation of removal is pre-
cluded when, during the initial seven years of residence,
the noncitizen was convicted of an offense referred to in
§ 1182(a)(2). Rather, the text says that cancellation of re-
moval is precluded when, during the initial seven years of
residence, the noncitizen “committed an offense referred to
in section 1182(a)(2) . . . that renders the alien inadmissible.”
§ 1229b(d)(1)(B). That language clarifes two points of rele-
vance here.
First, cancellation of removal is precluded if a noncitizen
committed a § 1182(a)(2) offense during the initial seven
years of residence, even if (as in Barton's case) the convic-
tion occurred after the seven years elapsed. In other
words, as Congress specifed in the statute and as the BIA
and the Courts of Appeals have recognized, the date of com-
mission of the offense is the key date for purposes of calcu-
lating whether the noncitizen committed a § 1182(a)(2) of-
fense during the initial seven years of residence. See In re
Perez, 22 I. & N. Dec. 689, 693–694 (BIA 1999) (date of com-
of removal, regardless of whether the noncitizen has an additional record
of prior crimes.

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233
Opinion of the Court
mission is controlling date); see also Heredia, 865 F. 3d, at
70
–71 (“the date of the commission of the offense governs
the computation of a lawful permanent resident's continuous
residency in the United States”); Calix, 784 F. 3d, at 1012
(“Once he was convicted of the offense” referred to in
§ 1182(a)(2), “he was rendered inadmissible to the United
States. His accrual of continuous residence was halted as
of the date he committed that offense”).
Second, the text of the law requires that the noncitizen be
rendered “inadmissible” as a result of the offense. For
crimes involving moral turpitude, which is the relevant cate-
gory of § 1182(a)(2) offenses here, § 1182(a)(2) provides that a
noncitizen is rendered “inadmissible” when he is convicted of
or admits the offense. § 1182(a)(2)(A)(i). As the Eleventh
Circuit explained, “while only commission is required at step
one, conviction (or admission) is required at step two.” 904
F. 3d, at 1301.
In this case, Barton's 1996 state aggravated assault of-
fenses were crimes involving moral turpitude and therefore
“referred to in section 1182(a)(2).” Barton committed those
offenses during his initial seven years of residence. He was
later convicted of the offenses in a Georgia court and thereby
rendered “inadmissible.” Therefore, Barton was ineligible
for cancellation of removal.
As a matter of statutory text and structure, that analysis
is straightforward. The Board of Immigration Appeals has
long interpreted the statute that way. See Jurado-Delgado,
24 I. & N. Dec., at 31. And except for the Ninth Circuit,
all of the Courts of Appeals to consider the question have
interpreted the statute that way.
B
Barton pushes back on that straightforward statutory in-
terpretation and the longstanding position of the Board of
Immigration Appeals. Barton says that he may not be de-
nied cancellation of removal based on his 1996 aggravated

234 B
ARTON v. BARR
Opinion of the Court
assault offenses because those offenses were not among the
offenses
of removal found by the Immigration Judge in Bar-
ton's removal proceeding. Rather, his 1996 frearms offense
and his 2007 and 2008 drug offenses were the offenses of
removal.
To succinctly summarize the parties' different positions
(with the difference highlighted in italics below): The Gov-
ernment would preclude cancellation of removal under this
provision if the lawful permanent resident committed a
§ 1182(a)(2) offense during the initial seven years of resi-
dence. Bar ton wou ld preclude cancellati on of removal
under this provision if the lawful permanent resident com-
mitted a § 1182(a)(2) offense during the initial seven years of
residence and if that § 1182(a)(2) offense was one of the of-
fenses of removal in the noncitizen's removal proceeding.
To support his “offense of removal” approach, Barton ad-
vances three different arguments. A caution to the reader:
These arguments are not easy to unpack.
First, according to Barton, the statute's overall structure
with respect to removal proceedings demonstrates that a
§ 1182(a)(2) offense may preclude cancellation of removal only
if that § 1182(a)(2) offense was one of the offenses of removal.
We disagree. In removal proceedings, a lawful permanent
resident (such as Barton) may be found “deportable” based
on deportability offenses listed in § 1227(a)(2). A noncitizen
who has not previously been admitted may be found “in-
admissible” based on i nadmissibi l ity offenses l isted i n
§ 1182(a)(2). See §§ 1182(a), 1227(a), 1229a(e)(2). Impor-
tantly, then, § 1227(a)(2) offenses—not § 1182(a)(2) offenses—
are typically the basis for removal of lawful permanent
residents.
Because the offense of removal for lawful permanent resi-
dents is ordinarily a § 1227(a)(2) offense, Barton's structural
argument falls apart. If Barton were correct that this as-
pect of the cancellation-of-removal statute focused only on
the offense of removal, the statute presumably would specify

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as: 590 U. S. 222 (2020)
235
Opinion of the Court
offenses “referred to i n sec ti on 1182(a)(2) o r sec t io n
1227(
a)(2).” So why does the statute identify only offenses
“referred to in section 1182(a)(2)”? Barton has no good an-
swer. At oral argument, when directly asked that question,
Barton's able counsel forthrightly acknowledged: “It's a little
hard to explain.” Tr. of Oral Arg. 27.
This point is the Achilles' heel of Barton's structural argu-
ment. As we see it, Barton cannot explain the omission of
§ 1227(a)(2) offenses in the “referred to” clause for a simple
reason: Barton's interpretation of the statute is incorrect.
Properly read, this is not simply an “offense of removal” stat-
ute that looks only at whether the offense of removal was
committed during the initial seven years of residence.
Rather, this is a recidivist statute that uses § 1182(a)(2) of-
fenses as a shorthand cross-reference for a category of of-
fenses that will preclude cancellation of removal if committed
during the initial seven years of residence.
By contrast to this cancellation-of-removal provision, some
other provisions of the immigration laws do focus only on the
offense of removal—for example, provisions governing
mandatory detenti on and jur isdic ti on. See §§ 1226(a),
(c)(1)(A), (B), 1252(a)(2)(C). But the statutory text and con-
text of those provisions support that limitation. Those pro-
v isi ons use the phrase “ i nadmissible by reason of ” a
§ 1182(a)(2) offense, “deportable by reason of ” a § 1227(a)(2)
offense, or “removable by reason of ” a § 1182(a)(2) or
§ 1227(a)(2) offense. And the provisions make contextual
sense only if the offense justifying detention or denying
jur isdic ti on is one of the offenses of remova l. The
cancellation-of-removal statute does not employ similar
language.
Second, moving from overall structure to precise text,
Barton seizes on the statutory phrase “committed an offense
referred to in section 1182(a)(2) . . . that renders the alien
inadmissible to the United States under section 1182(a)(2).”
§ 1229b(d)(1)(B) (emphasis added). According to Barton,

236 B
ARTON v. BARR
Opinion of the Court
conviction of an offense listed in § 1182(a)(2)—for example,
con
viction in state court of a crime involving moral turpi-
tude—does not itself render the noncitizen “inadmissible.”
He argues that a noncitizen is not rendered “inadmissible”
unless and until the noncitizen is actually adjudicated as in-
admissible and denied admission to the United States. And
he further contends that a lawfully admitted noncitizen usu-
ally cannot be removed from the United States on the basis
of inadmissibility. As Barton puts it (and the dissent echoes
the point), how can a lawfully admitted noncitizen be found
inadmissible when he has already been lawfully admitted?
As a matter of common parlance alone, that argument
would of course carry some force. But the argument fails
because it disregards the statutory text, which employs the
term “inadmissibility” as a status that can result from, for
example, a noncitizen's (including a lawfully admitted noncit-
izen's) commission of certain offenses listed in § 1182(a)(2).
For example, as relevant here, § 1182(a)(2) fatly says that
a noncitizen such as Barton who commits a crime involving
moral turpitude and is convicted of that offense “is inadmissi-
ble.” § 1182(a)(2)(A)(i). Full stop. Similarly, a noncitizen
who has two or more convictions, together resulting in ag-
gregate sentences of at least fve years, “is inadmissible.”
§ 1182(a)(2)(B). A noncitizen who a consular offcer or the
Attorney General knows or has reason to believe is a drug
traffcker “is inadmissible.” § 1182(a)(2)(C)(i). A noncitizen
who receives the proceeds of prostitution within 10 years of
applying for admission “is inadmissible.” § 1182(a)(2)(D)(ii).
The list goes on. See, e. g., §§ 1182(a)(2)(C)(ii)–(E), (G)–(I).
Those provisions do not say that a noncitizen will become
inadmissible if the noncitizen is found inadmissible in a sub-
sequent immigration removal proceeding. Instead, those
provisions say that the noncitizen “is inadmissible.”
Congress has in turn made that status—inadmissibility
because of conviction or other proof of commission of
§ 1182(a)(2) offenses—relevant in several statutory contexts

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237
Opinion of the Court
that apply to lawfully admitted noncitizens such as Barton.
Those
contexts include adjustment to permanent resident
status; protection from removal because of temporary pro-
tected status; termination of temporary resident status; and
here cancellation of removal. See, e. g., §§ 1160(a)(1)(C),
(a)(3)(B)(ii), 1254a(a)(1)(A), (c)(1)(A)(iii), 1255(a), (l)(2). In
those contexts, the noncitizen faces immigration conse-
quences from being convicted of a § 1182(a)(2) offense even
though the noncitizen is lawfully admitted and is not neces-
sarily removable solely because of that offense.
Consider how those other proceedings work. A lawfully
admitted noncitizen who is convicted of an offense listed in
§ 1182(a)(2) is typically not removable from the United States
on that basis (recall that a lawfully admitted noncitizen is
ordinarily removable only for commission of a § 1227(a)(2) of-
fense). But the noncitizen is “inadmissible” because of the
§ 1182(a)(2) offense and for that reason may not be able to
obtain adjustment to permanent resident status. §§ 1255(a),
(l)(2). So too, a lawfully admitted noncitizen who is con-
victed of an offense listed in § 1182(a)(2) is “inadmissible” and
for that reason may not be able to obtain temporary pro-
tected status. §§ 1254a(a)(1)(A), (c)(1)(A)(iii). A lawfully
admitted noncitizen who is a temporary resident and is con-
victed of a § 1182(a)(2) offense is “inadmissible” and for that
reason may lose temporary resident status. §§ 1160(a)(1)(C),
(a)(3)(B)(ii).
Those statutory examples pose a major hurdle for Barton's
textual argument. The examples demonstrate that Con-
gress has employed the concept of “inadmissibility” as a sta-
tus in a variety of statutes similar to the cancellation-of-
removal statute, including for lawfully admitted noncitizens.
Barton has no persuasive answer to those examples. Bar-
ton tries to say that some of those other statutes involve a
noncitizen who, although already admitted to the United
States, is nonetheless seeking “constructive admission.”
Reply Brief 12; Tr. of Oral Arg. 11. But that ginned-up label

238 B
ARTON v. BARR
Opinion of the Court
does not avoid the problem. Put simply, those other stat-
utes
show that lawfully admitted noncitizens who are, for
example, convicted of § 1182(a)(2) crimes are “inadmissible”
and in turn may suffer certain immigration consequences,
even though those lawfully admitted noncitizens cannot nec-
essarily be removed solely because of those § 1182(a)(2)
offenses.
The same is true here. A lawfully admitted noncitizen
who was convicted of a crime involving moral turpitude dur-
ing his initial seven years of residence is “inadmissible” and
for that reason is ineligible for cancellation of removal.
In advancing his structural and textual arguments, Barton
insists that his interpretation of the statute refects congres-
sional intent regarding cancellation of removal. But if Con-
gress intended that only the offense of removal would pre-
clude cancellation of removal under the 7-year residence
provision, it is unlikely that Congress would have employed
such a convoluted way to express that intent. Barton can-
not explain why, if his view of Congress' intent is correct,
the statute does not simply say something like: “The alien is
not eligible for cancellation of removal if the offense of re-
moval was committed during the alien's initial seven years
of residence.”
Third, on a different textual tack, Barton argues that the
Government's interpretation cannot be correct because the
Government would treat as surplusage the phrase “or re-
movable from the United States under section 1227(a)(2) or
1227(a)(4) of this title.” Recall that the statute, as relevant
here, provides that a lawful permanent resident is not eligi-
ble for cancellation of removal if, during the initial seven
years of residence, he committed “an offense referred to in
section 1182(a)(2) of this title that renders the alien inadmis-
sible to the United States under section 1182(a)(2) of this
title or removable from the United States under section
1227(a)(2) or 1227(a)(4) of this title.” § 1229b(d)(1)(B) (em-
phasis added).

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Opinion of the Court
To begin with, all agree that under either side's inter-
pret
ation, the reference to § 1227(a)(4)—as distinct from
§ 1227(a)(2)—is redundant surplusage. See § 1229b(c)(4);
Brief for Petitioner 32–33, and n. 7. Under the Govern-
ment's interpretation, it is true that the reference to
§ 1227(a)(2) also appears to be redundant surplusage. Any
offense that is both referred to in § 1182(a)(2) and an of-
fense that would render the noncitizen deportable under
§ 1227(a)(2) would also render the noncitizen inadmissible
under § 1182(a)(2). But redundancies are common in statu-
tory drafting—sometimes in a congressional effort to be dou-
bly sure, sometimes because of congressional inadvertence
or lack of foresight, or sometimes simply because of the
shortcomings of human communication. The Court has
often recognized: “Sometimes the better overall reading of
the statute contains some redundancy.” Rimini Street, Inc.
v. Oracle USA, Inc., 586 U. S. 334, 346 (2019); see Wisconsin
Central Ltd. v. United States, 585 U. S. 274, 282 (2018); Marx
v. General Revenue Corp., 568 U. S. 371, 385 (2013); Lamie
v. United States Trustee, 540 U. S. 526, 536 (2004). So it is
here. Most importantly for present purposes, we do not see
why the redundant statutory reference to § 1227(a)(2) should
cause us to entirely rewrite § 1229b so that a noncitizen's
commission of an offense referred to in § 1182(a)(2) would
preclude cancellation of removal only if it is also the offense
of removal. Redundancy in one portion of a statute is not a
license to rewrite or eviscerate another portion of the statute
contrary to its text, as Barton would have us do.
One fnal point: Barton argues in the alternative that even
if inadmissibility is a status, and even if the offense that pre-
cludes cancellation of removal need not be one of the offenses
of removal, the noncitizen must at least have been capable
of being charged with a § 1182(a)(2) inadmissibility offense as
the basis for removal. The dissent seizes on this argument
as well. But as we have explained, this cancellation-of-
removal statute is a recidivist statute that precludes cancel-

240 B
ARTON v. BARR
Sotomayor, J., dissenting
lation of removal if the noncitizen has committed an offense
l
isted in § 1182(a)(2) during the initial seven years of resi-
dence. Whether the offense that precludes cancellation of
removal was charged or could have been charged as one of
the offenses of removal is irrelevant to that analysis.
***
Removal of a lawful permanent resident from the United
States is a wrenching process, especially in light of the con-
sequences for family members. Removal is particularly dif-
fcult when it involves someone such as Barton who has spent
most of his life in the United States. Congress made a
choice, however, to authorize removal of noncitizens—even
lawful permanent residents—who have committed certain
serious crimes. And Congress also made a choice to cate-
gorically preclude cancellation of removal for noncitizens
who have substantial criminal records. Congress may of
course amend the law at any time. In the meantime, the
Court is constrained to apply the law as enacted by Con-
gress. Here, as the BIA explained in its 2006 Jurado-
Delgado decision, and as the Second, Third, Fifth, and Elev-
enth Circuits have indicated, the immigration laws enacted
by Congress do not allow cancellation of removal when a
lawful permanent resident has amassed a criminal record of
this kind.
We affrm the judgment of the U. S. Court of Appeals for
the Eleventh Circuit.
It is so ordered.
Justice Sotomayor, with whom Justice Ginsburg, Jus-
tice Breyer, and Justice Kagan join, dissenting.
The stop-time rule ends a noncitizen's period of continuous
residence, making him or her ineligible for certain relief from
removal. But to trigger the rule, it takes more than com-
mission of a specifed criminal offense: The offense must also
render a noncitizen either “inadmissible” or “deportable.”

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241
Sotomayor, J., dissenting
In applying these important limitations, the rule directly ref-
erences
the two-track nature of the Immigration and Nation-
ality Act (INA), a statute that has long distinguished be-
tween noncitizens seeking admission and those already
admitted. Inadmissibility, of course, pertains to noncitizens
seeking admission; deportability relates to noncitizens al-
ready admitted but removable.
The majority errs by confating these two terms. It con-
cludes that the term “inadmissible,” for the purposes of the
stop-time rule, refers to a status that a noncitizen could ac-
quire even if he or she is not seeking admission. Under this
logic, petitioner Andre Barton is inadmissible yet, at the
same time, lawfully admitted. Neither the express lan-
guage of the statute nor any interpretative canons support
this paradox; Barton cannot and should not be considered
inadmissible for purposes of the stop-time rule because he
has already been admitted to the country. Thus, for the
stop-time rule to render Barton ineligible for relief from re-
moval, the Government must show that he committed an of-
fense that made him deportable. Because the Government
cannot meet that burden, Barton should prevail.
I respectfully dissent.
I
A
Cancellation of removal is a form of immigration relief
available to lawful permanent residents (LPRs) and other
noncitizens, including those who have never been lawfully
admitted. 8 U. S. C. § 1229b. To obtain this relief, both
groups must continuously reside in the United States for
a certain amount of time. § 1229b(a)(2) (seven years for
LPRs); § 1229b(b)(1)(A) (10 years for non-LPR noncitizens).
The stop-time rule ends a noncitizen's period of continuous
residence (1) when the noncitizen “has committed an offense
referred to in section 1182(a)(2) of this title” that either (2)
“renders” the noncitizen “inadmissible to the United States

242 B
ARTON v. BARR
Sotomayor, J., dissenting
under section 1182(a)(2) of this title” or (3) renders the non-
citi
zen “removable from the United States under section
1227(a)(2) or 1227(a)(4) of this title.” § 1229b(d)(1). The
second clause directly invokes grounds of inadmissibility; the
third clause, although using the term “removable,” directly
invokes grounds of deportability. See § 1227(a) (specifying
“[c]lasses of deportable aliens”).
1
Both the second and the
third clauses are cabined by the frst: In addition to render-
ing a noncitizen either inadmissible or deportable, the offense
must also be one “referred to” in § 1182(a)(2). That provi-
sion includes some—but not all—of the grounds of deport-
ability in § 1227.
This distinction between “inadmissible” and “deportable”
matters. Indeed, both are terms of art, so it is critical to
understand their histories and their attached meaning over
time. See INS v. St. Cyr, 533 U. S. 289, 312, n. 35 (2001)
(noting that “ `[w]here Congress borrows terms of art,' ” with
settled meaning, it “ `presumably knows and adopts the clus-
ter of ideas that were attached to each borrowed word' ”
(quoting Morissette v. United States, 342 U. S. 246, 263
(1952))).
Until Congress passed the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), noncitizens
seeking physical entry were placed in “ `exclusion proceed-
ing[s],' ” while those already physically present were placed
in “ `deportation proceeding[s].' ” Judulang v. Holder, 565
U. S. 42, 45 (2011). Although the grounds for exclusion and
deportation—and the procedures applying to each—evolved
over time, the immigration laws retained a two-track system;
different procedures and processes applied to noncitizens
who were deportable and noncitizens who were excludable.
Brief for Immigration Law Professors as Amici Curiae 3–8.
1
Because the third clause refers to grounds of deportability, the Govern-
ment appears to agree that the terms “removable” and “deportable” are
interchangeable. See Brief for Respondent 21–22.

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243
Sotomayor, J., dissenting
IIRIRA changed the proceedings and some of the lan-
g
uage. All noncitizens are now channeled into “ `removal
proceeding[s],' ” and noncitizens previously labeled “exclud-
able” are now labeled “ `inadmissible.' ” Judulang, 565 U. S.,
at 46. IIRIRA also altered when a noncitizen faces grounds
of inadmissibility, formerly exclusion: Rather than focusing
on whether a noncitizen had physically entered the country,
the statute now asks whether the noncitizen had been
lawfu l ly admitted, i n any st atus, to the country. See
§§ 1101(a)(13)(A), 1182(a).
Still, the immigration laws have retained their two-track
structure. Inadmissibility and deportability remain sepa-
rate concepts, triggered by different grounds. With few ex-
ceptions, the grounds for inadmissibility are broader than
those for deportability. Compare § 1182(a)(2)(A)(i)(I) with
§ 1227(a)(2)(A)(i) (refecting different treatment for crimes
involving moral turpitude). Further, while a noncitizen
charged with inadmissibility bears the ultimate burden to
show that he is admissible, the Government bears the bur-
den of demonstrati ng that a nonciti zen is depor t able.
§§ 1229a(c)(2), (c)(3).
Whether a noncitizen is charged with inadmissibility or
deportability also affects what the noncitizen or the Govern-
ment must show to carry their respective burdens. A crimi-
nal ground for inadmissibility can be made out by showing
either that the noncitizen admitted to conduct meeting the
elements of a crime or that she was actually convicted of an
offense. See, e. g., Pazcoguin v. Radcliffe, 292 F. 3d 1209,
1213–1215 (CA9 2002) (noncitizen inadmissible because he ad-
mitted to health offcer that he smoked marijuana in his
youth); see also § 1182(a)(2)(A). By contrast, most criminal
grounds for deportability can be established only through
convictions. See §§ 1227(a)(2)(A)(i)–(v), (a)(2)(B)(i).
Finally, the substantive standards for cancellation of re-
moval are also less stringent for a subset of deportable non-
citizens: LPRs like Barton. Among other things, while an

244 B
ARTON v. BARR
Sotomayor, J., dissenting
otherwise-eligible LPR must merely demonstrate that he or
she
deserves the relief as a matter of discretion, see In re
C-V-T-, 22 I. & N. Dec. 7, 10–11 (BIA 1998), non-LPRs must
demonstrate exceptional and extremely unusual hardship to
an LPR or citizen parent, spouse, or child, § 1229b(b)(1)(D).
These separate categories and procedures—treating de-
portable noncitizens more generously than inadmissible non-
citizens, and treating one group of deportable noncitizens
(LPRs) the most generously of all—stem from one animating
principle. All noncitizens in this country are entitled to cer-
tain rights and protections, but the protections afforded to
previously admitted noncitizens and LPRs are particularly
strong. See Demore v. Kim, 538 U. S. 510, 543–544 (2003)
(Souter, J., concurring in part and dissenting in part). In-
deed, “[t]he immigration laws give LPRs the opportunity to
establish a life permanently in this country by developing
economic, familial, and social ties indistinguishable from
those of a citizen.” Id., at 544. Because those already ad-
mitted, like Barton, are often presumed to have greater con-
nections to the country, the immigration laws use separate
terms and create separate procedures for noncitizens seeking
admission to the country on the one hand, and those who
were previously admitted on the other.
The stop-time rule carries that distinction forward. The
rule specifes how a period of continuous residence ends for
noncitizens who are seeking admission and thus are inadmis-
sible, as well as noncitizens who are already admitted and
thus are deportable. By using separate terms and grounds
for two groups of people, the stop-time rule thus refects the
two-track dichotomy for inadmissible or deportable nonciti-
zens that pervades the INA.
B
Barton is a longtime lawfully admitted resident of the
United States. He and his mother moved to the United

Cite
as: 590 U. S. 222 (2020)
245
Sotomayor, J., dissenting
States from Jamaica when he was about 10 years old. They
both
entered legally and, through Barton's stepfather, soon
adjusted their status to LPRs. When Barton was placed
in removal proceedings, all of his immediate family—his
mother, his children, his fancee—were living in the United
States. He had not returned to Jamaica in 25 years.
Barton was frst arrested in 1996, when he was 17 or 18,
after a friend shot at his ex-girlfriend's house while he was
present. Both he and his friend were convicted of, among
other things, aggravated assault and possession of a frearm.
Barton later testifed before an immigration judge that he
was unaware that his friend had a gun or was planning to
shoot it.
After attending a boot camp and obtaining his GED, Bar-
ton led a law-abiding life for several years. But in the mid-
2000s, Barton developed a drug problem and was convicted
twice on possession charges. After attending two drug re-
habilitation programs, Barton was never arrested again.
He graduated from college, began running an automobile re-
pair shop, and became a father to four young children.
Just a few years ago—nearly 10 years after his last ar-
rest—the Government detained Barton and placed him in
removal proceedings. Because he had been lawfully ad-
mitted to the country, the Government could not charge him
with any grounds of inadmissibility. Rather, the Govern-
ment charged, and Barton conceded, that he was deportable
based on prior frearms and drug convictions. (All agree
that Barton's aggravated-assault offense did not qualify as a
deportable offense under § 1227.) Barton then sought can-
cellation of removal.
Perhaps recognizing that Barton had a strong case for can-
cellation of removal on the merits, see C-V-T-, 22 I. & N.
Dec., at 11 (factors such as “family ties within the United
States, residence of long duration in this country (particu-
larly when the inception of residence occurred at a young

246 B
ARTON v. BARR
Sotomayor, J., dissenting
age),” and “business ties” all favor a noncitizen seeking
cancel
lation), the Government contended that Barton was
categorically ineligible for that relief. It reasoned that Bar-
ton's prior offenses triggered the stop-time rule and that
Barton therefore could not meet the continuous-residence
requirement.
The problem (for the Government) was fnding a prior of-
fense that actually triggered the stop-time rule. None of
the offenses that had made Barton deportable—his frearms
and drug convictions—satisfed the stop-time rule's frst
clause because § 1182(a)(2) does not “refe[r] to” those of-
fenses. The Government therefore could not argue that
Barton's frearms and drug offenses ended Barton's period
of continuous residence under the stop-time rule. As for
Barton's aggravated-assault offense, it was not a ground for
deportability under § 1227(a) and therefore did not render
him deportable under the third clause of the stop-time rule.
So the Government took a different tack: It argued that,
even though Barton had already been admitted (and was not
seeking readmission), his aggravated-assault offense “ren-
der[ed him] inadmissible” under the second clause of the
stop-time rule. That is, although the Government could not
charge Barton with inadmissibility, it relied upon a ground
of inadmissibility to assert that Barton was not entitled to
relief from removal.
The Immigration Judge agreed with the Government.
The judge made clear, however, that she would have granted
Bar ton's cancel lati on appl icati on had he satisfied the
continuous-residence requirement. The judge cited, among
other things, Barton's strong family ties, including his four
young children who were all U. S. citizens. The judge con-
cluded that because “his last arrest was over 10 years ago,”
Barton “is clearly rehabilitated.” The judge also concluded
that Barton's family “relies on him and would suffer hardship
if he were to be deported to Jamaica.” App. to Pet. for
Cert. 36a.

Cite
as: 590 U. S. 222 (2020)
247
Sotomayor, J., dissenting
II
Bar
ton makes two arguments to this Court. The Court
focuses on the frst—that the stop-time rule will “rende[r]”
a noncitizen inadmissible only if the person is actually adjudi-
cated inadmissible based on the given offense. But whether
Barton is right on that score is irrelevant because Barton's
second argument—which the Court fails to grapple with
meaningfully—is surely correct: At the very least, an offense
cannot “rende[r]” someone inadmissible unless the Govern-
ment can legally charge that noncitizen with a ground of in-
admissibility. That is, the stop-time rule is consistent with
basic immigration law: A noncitizen who has already been
admitted, and is not seeking readmission, cannot be charged
with any ground of inadmissibility and thus cannot be
deemed inadmissible.
Because the stop-time rule uses the terms “removable”
(i. e., deportable) and “inadmissible” in the disjunctive, the
Court must analyze the rule against the INA's historic two-
track backdrop. That context confrms that the term “inad-
missible” cannot refer to a noncitizen who, like Barton, has
already been admitted and is not seeking readmission. In-
deed, the terms “inadmissible” and “deportable” are mutu-
ally exclusive in removal proceedings: A noncitizen can
be deemed either inadmissible or deportable, not both.
§ 1229a(e) (for the purposes of removal statute and § 1229b—
governing cancellation of removal—a noncitizen is “inadmis-
sible under section 1182” if “not admitted to the United
States,” and “deportable under section 1227” if “admitted
to the United States”). For the purposes of the stop-time
rule, a person is not “inadmissible” unless that person
actually seeks admission, and thus is subject to charges of
inadmissibility.
After all, if the provision applied to those who could hypo-
thetically be rendered inadmissible, it could have said so.
For example, the statute would have said that it applied
when “the alien has committed an offense referred to in

248 B
ARTON v. BARR
Sotomayor, J., dissenting
section 1182(a)(2) of this title” that either (2) “could render
the
alien inadmissible to the United States under section
1182(a)(2) of this title” or (3) could render the noncitizen “re-
movable [i. e., deportable] from the United States under
section 1227(a)(2) or 1227(a)(4) of this title.”
2
The Government's reading—that a noncitizen can be inad-
missible under the stop-time rule without seeking admission
at a ll—flouts basic statutory-interpretation principles.
Among “the most basic interpretive canons” is “that a stat-
ute should be construed so that effect is given to all its provi-
sions, so that no part will be inoperative or superfuous, void
or insignifcant.” Corley v. United States, 556 U. S. 303, 314
(2009) (internal quotation marks and alteration omitted).
Were the stop-time rule agnostic to whether the noncitizen
actually seeks admissi on, then the ru le's th ird clause—
regarding deportability—would be meaningless. When a
noncitizen is “removable”—i. e., deportable—under § 1227 for
an offense “referred to” in § 1182(a)(2), he or she is also “inad-
missible” for an offense “referred to” in § 1182(a)(2). The
third clause has meaning only if inadmissibility and deport-
ability apply, as they always have, to separate groups of non-
citizens—noncitizens seeking admission on the one hand, and
noncitizens already admitted on the other.
To be sure, there are limited exceptions to the general
rule that questions of admissibility apply only to noncitizens
2
The Court seems to suggest that the stop-time rule's tense simply mir-
rors § 1182(a)(2). See ante, at 236. It is true that § 1182(a)(2) speaks in
the present tense, stating that a noncitizen “is inadmissible” if she has
been “convicted of ” or “admits havi ng committed” cert ai n offenses.
§ 1182(a)(2)(A)(i). But the Court's argument does not follow. Section
1182, by its terms, applies only to “[c]lasses of aliens ineligible for visas or
admission.” § 1182(a). Because the provision applies only to noncitizens
seeking admission, it is only natural that the clause uses the present tense
to describe when such a noncitizen “is inadmissible.” By contrast, the
stop-time rule, under the Government's and Court's reading, purports to
apply to noncitizens not seeking admission at all—and who therefore could
not possibly be adjudicated inadmissible.

Cite
as: 590 U. S. 222 (2020)
249
Sotomayor, J., dissenting
seeking formal admission. Noncitizens applying for adjust-
ment
of status must establish admissibility. §§ 1255(a),
(l)(2). But that is because adjustment of status is an ex-
press proxy for admission: “Congress created the [process]
to enable an alien physically present in the United States to
become an LPR without incurring the expense and inconven-
ience of traveling abroad to obtain an immigrant visa” and
then presumably demonstrating admissibility on return.
DHS, U. S. Citizenship and Immigration Services Policy
Manual, vol. 7, pt. A, ch. 1 (2020), https://www.uscis.gov/
policy-manual. Far from a “ginned-up label,” ante, at 237,
the term “constructive admission” expresses precisely how
the INA conceives of adjustment of status: an admissions
process that occurs inside the United States as opposed to
outside of it.
Alternatively, the Government also relies on two narrow
provisions of the INA applicable to “[s]pecial agricultural
workers,” 8 U. S. C. § 1160(a)(3)(B)(ii), and “certain entrants
before January 1, 1982,” § 1255a(b)(2)(B). These provisions,
it argues, demonstrate that throughout the INA, inadmissi-
bility is a status untethered to admission. But these provi-
sions, too, refer to noncitizens seeking adjustment of status.
§ 1160(a)(1) (setting procedures for adjustment of status of
certain noncitizens); § 1255a(a) (same).
3
Even if the Govern-
ment were correct that these statutes deem a noncitizen in-
admissible outside of an application for admission, its argu-
ment would rise and fall on a few provisions within the
expansive INA.
4
In any event, neither of these provisions
3
Indeed, one of the provisions suggests that, outside the context in
which a noncitizen seeks adjustment of status (and thus seeks constructive
admission), a noncitizen's status can be terminated “only upon a determi-
nation . . . that the alien is deportable.” § 1160(a)(3)(A).
4
The Government also notes that a noncitizen would be deportable were
she inadmissible at entry (or during adjustment of status) but erroneously
admitted (or allowed to adjust status). Brief for Respondent 18–19 (citing
§ 1227(a)(1)(A)). But this provision directly undermines the Govern-
ment's reading of the statute. Were inadmissibility a status untethered

250 B
ARTON v. BARR
Sotomayor, J., dissenting
is similar in structure and purpose to the stop-time rule.
N
either refers to grounds of inadmissibility and grounds of
deportability in tandem. What is more, neither appears to
confer or deny relief exclusively in removal proceedings—
where the dichotomy between inadmissibility and deportabil-
ity is most important.
By contrast, the Government concedes that the term “in-
admissible” in the mandatory-detention statute—a provision
structurally similar to the stop-time rule—applies only to
noncitizens capable of being charged with inadmissibility.
Brief for Respondent 30. That provision specifes, in rele-
vant part, that the Government “shall take into custody any
alien who—(A) is inadmissible by reason of having com-
mitted any offense covered in section 1182(a)(2)” or “(C) is
deportable under section 1227(a)(2)(A)(i) . . . on the basis of
an offense for which the alien has been sentence[d] to a term
of imprisonment of at least 1 year.” § 1226(c)(1) (footnote
omitted).
Although the term “inadmissible” in this context does not
refer to an actual adjudication of inadmissibility, see Demore,
538 U. S., at 513, 531, the Government accepts that it must
at least refer to a possible charge on a noncitizen seeking
admission. Brief for Respondent 30. Otherwise, the stat-
ute would subject already-admitted noncitizens—even those
who are not deportable for any criminal offense—to manda-
tory detention, simply because they occupy the “status” of
inadmissibility. This provision's structure is virtually the
same as the stop-time rule: It refers to grounds of inadmissi-
bility and grounds of deportability separately and applies to
a noncitizen in removal proceedings.
Given the similar structure, the stop-time rule should be
read the same as the mandatory-detention provision: to refer
to admission, a noncitizen inadmissible at the time of entry would always
be inadmissible. But because a noncitizen who was already admitted can-
not be adjudicated inadmissible, Congress made erroneous admission a
ground of deportability, not inadmissibility.

Cite
as: 590 U. S. 222 (2020)
251
Sotomayor, J., dissenting
to adjudications that are possible rather than impossible. If
a
noncitizen seeking admission has committed a crime under
§ 1182(a)(2) and is convicted of or admits to the offense, that
offense “renders” the noncitizen “inadmissible” because the
noncitizen can be charged and found inadmissible based on
that crime. But such an offense does not render a noncitizen
inadmissible if, like Barton, he or she was admitted years
earlier and does not seek readmission. For a noncitizen who
has already been admitted, Congress carved out a sepa-
rate category of offenses in both the stop-time rule and
the mandatory-detention provision: here, those referred to
in § 1182(a)(2) that render a noncitizen deportable under
§§ 1227(a)(2) and (a)(4).
III
The Court reaches a different result only by contorting the
statutory language and by breezily waving away applicable
canons of construction. At various points the Court seems
to ignore the rule's second and third clauses entirely—
clauses that, as menti oned above, disting uish between
grounds of inadmissibility and grounds of deportability.
The Court insists that the statute “operates like traditional
criminal recidivist laws” because it precludes cancellation of
removal for a noncitizen who “has committed an offense
listed in § 1182(a)(2) during the initial seven years of resi-
dence.” Ante, at 225–226; see also ante, at 230, 231, n. 5, 240.
Had Congress intended for commission of a crime in
§ 1182(a)(2) alone to trigger the stop-time rule, it would have
said so. In fact, it would have stopped at the rule's frst
clause, which (without more) states the Court's rule: that the
time of continuous residence stops whenever a noncitizen
“has committed an offense referred to in section 1182(a)(2)
of this title.” § 1229b(d)(1).
But that reading ignores the rest of what Congress wrote.
Congress specifed that it is not enough for a noncitizen to
commit a crime listed in § 1182(a)(2); that crime must also
“rende[r] the alien inadmissible to the United States under

252 B
ARTON v. BARR
Sotomayor, J., dissenting
section 1182(a)(2) of this title” or “removable from the United
St
ates under section 1227(a)(2) or 1227(a)(4) of this title.”
§ 1229b(d)(1). Those words have meaning—invoking the
two-track structure of the INA and the distinction between
grounds of inadmissibility and grounds of deportability—and
the Court cannot simply will them out of existence.
Even when the Court fnally discusses the second clause,
“renders the alien inadmissible,” the Court raises more ques-
tions than it answers—and answers questions that it need
not address at all. First, the Court claims, the clause makes
clear that “cancellation of removal is precluded if a noncitizen
committed a § 1182(a)(2) offense during the initial seven
years of residence, even if (as in Barton's case) the convic-
tion occurred after the seven years elapsed.” Ante, at 232.
Despite the emphasis the Court lays on this point, it is irrele-
vant to this case: Barton does not dispute that the stop-time
rule is triggered by the date of commission of a crime rather
than a later date of conviction. Brief for Petitioner 9, n. 4.
The question in this case is whether certain offenses can pos-
sibly render Barton inadmissible when he does not seek
admission and has already been admitted—regardless of
whether one looks to the date of commission or the date of
conviction of those offenses.
5
Even if this question mattered and were properly before
us, Congress could have made the same point—that the stop-
time rule is triggered by commission of a crime—by omitting
the second and third clauses entirely. It again could have
written what the Court, at various points, seems to wish
it had written: The stop-time rule is triggered whenever a
noncitizen “has committed an offense referred to in section
5
Courts have split over what event triggers the stop-time rule—com-
mission of the offense or a second, later point at which the offense “ren-
der[s]” the noncitizen inadmissible. Brief for Momodoulamin Jobe et al. as
Amici Curiae 12–13. Because this point about the trigger date is neither
disputed here nor briefed by either party, the Court's opinion should not
be read to resolve a Circuit split that is not before this Court.

Cite
as: 590 U. S. 222 (2020)
253
Sotomayor, J., dissenting
1182(a)(2) of this title.” The second and third clauses—
wh
ich refer to later events, when a noncitizen is actually
“render[ed]” inadmissible or deportable—make the Court's
aside less plausible, not more.
The Court next insists that the second clause makes clear
that the crime must “rende[r]” the noncitizen “inadmissi-
ble”—which, in the Court's view, requires only that a nonciti-
zen admit the crime or be convicted of it. Ante, at 233.
But given the INA's historic two-track structure, a nonciti-
zen is not “render[ed]” inadmissible when convicted of an
offense that cannot serve as a ground of removal at all. The
Court also fails to clarify why, if conviction or admission
alone renders any noncitizen inadmissible regardless of ad-
mission status, Congress chose to add a third clause refer-
ring to grounds of deportability.
Indeed, what does the Court do about the canon against
surplusage? The Court does not dispute that its reading
makes the entire third clause of the stop-time rule meaning-
less. It offers only two rejoinders: (1) that the reference to
subsection (a)(4) in the third clause is superfuous under
either party's reading, and (2) that a bit of surplusage makes
no difference in any event. Ante, at 238–239. To be sure,
“[s]ometimes the better overall reading of the statute con-
tains some redundancy.” Rimini Street, Inc. v. Oracle USA,
Inc., 586 U. S. 334, 346 (2019). But the Court relies on more
than just “some redundancy.” It dismisses out of hand one
of only three clauses in the stop-time rule—without regard
for the clause's pedigree or the core difference between de-
portability and inadmissibility.
It remains this Court's “ `duty “to give effect, if possible,
to every clause and word of a statute.” ' ” Duncan v.
Walker, 533 U. S. 167, 174 (2001) (quoting United States v.
Menasche, 348 U. S. 528, 538–539 (1955)). It must therefore
be “ `reluctan[t] to treat statutory terms as surplusage' in
any setting,” 533 U. S., at 174 (quoting Babbitt v. Sweet
Home Chapter, Communities for Great Ore., 515 U. S. 687,

254 B
ARTON v. BARR
Sotomayor, J., dissenting
698 (1995))—especially in this context, where each word
cou
ld dictate categorical ineligibility for relief from removal.
It also does not matter that, as the Government points out,
§ 1227(a)(4) did not initially refer to any crimes cross-
referenced in § 1182(a)(2). Brief for Respondent 32–33.
6
Congress' decision to make a noncitizen ineligible for cancel-
lation based on a to-be-determined class of crimes is far dif-
ferent from excising and giving no meaning to an entire
clause.
***
At bottom, the Court's interpretation is at odds with the
express words of the statute, with the statute's overall struc-
ture, and with pertinent canons of statutory construction.
It is also at odds with common sense. With virtually every
other provision of the INA, Congress granted preferential
treatment to lawfully admitted noncitizens—and most of all
to LPRs like Barton. But because of the Court's opinion
today, noncitizens who were already admitted to the country
are treated, for the purposes of the stop-time rule, identically
to those who were not—despite Congress' express refer-
ences to inadmissibility and deportability. The result is
that, under the Court's interpretation, an immigration judge
may not even consider whether Barton is entitled to cancella-
tion of removal—because of an offense that Congress deemed
too trivial to allow for Barton's removal in the frst instance.
Because the Court's opinion does no justice to the INA,
let alone to longtime LPRs like Barton, I respectfully
dissent.
6
Barton acknowledges that, even now, the reference to § 1227(a)(4) “does
little or no work” for a separate reason: Noncitizens who are deportable
under that subsection are ineligible for cancellation of removal. Brief for
Petitioner 33, n. 7. But, according to Barton, there are scenarios in which
the reference to § 1227(a)(4) nevertheless “ `may . . . not be a redundancy,' ”
ibid., and perhaps for this reason, the Government does not focus on this
argument in its brief.

OCTOBER
TERM, 2019
255
Syllabus
GEORGIA et al. v. PUBLIC.RESOURCE.ORG, INC.
certiorari
to the united states court of appeals for
the eleventh circuit
No. 18–1150. Argued December 2, 2019—Decided April 27, 2020
The Copyright Act grants monopoly protection for “original works of au-
thorship.” 17 U. S. C. § 102(a). Under the government edicts doctrine,
offcials empowered to speak with the force of law cannot be the authors
of the works they create in the course of their offcial duties.
The State of Georgia has one offcial code—the Offcial Code of Geor-
gia Annotated (OCGA). That Code includes the text of every Georgia
statute currently in force, as well as a set of non-binding annotations
that appear beneath each statutory provision. The annotations typi-
cally include summaries of judicial opinions construing each provision,
summaries of pertinent opinions of the state attorney general, and a list
of related law review articles and other reference materials. The
OCGA is assembled by the Code Revision Commission, a state entity
composed mostly of legislators, funded through legislative branch appro-
priations, and staffed by the Offce of Legislative Counsel.
The annotations in the current OCGA were produced by Matthew
Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a
work-for-hire agreement with the Commission. Under the agreement,
Lexis drafts the annotations under the supervision of the Commission,
which specifes what the annotations must include in exacting detail.
The agreement also states that any copyright in the OCGA vests in the
State of Georgia, acting through the Commission.
Respondent Public.Resource.Org (PRO), a nonproft dedicated to facil-
itating public access to government records and legal materials, posted
the OCGA online and distributed copies to various organizations and
Georgia offcials. After sending PRO several cease-and-desist letters,
the Commission sued PRO for infringing its copyright in the OCGA
annotations. PRO counterclaimed, seeking a declaratory judgment
that the entire OCGA, including the annotations, fell in the public do-
main. The District Court sided with the Commission, holding that
the annotations were eligible for copyright protection because they had
not been enacted into law. The Eleventh Circuit reversed, rejecting
the Commission's copyright assertion under the government edicts
doctrine.
Held: The OCGA annotations are inelig ible for copyright protection.
Pp. 263–276.

256 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Syllabus
(a) The government edicts doctrine developed from a trio of 19th-
century
cases. In Wheaton v. Peters, 8 Pet. 591, the Court held that
no reporter can have a copyright in the Court's opinions and that the
Justices cannot confer such a right on any reporter. In Banks v. Man-
chester, 128 U. S. 244, the Court held that judges could not assert copy-
right in “whatever work they perform in their capacity as judges”—be
it “the opinion or decision, the statement of the case and the syllabus or
the head note.” Id., at 253. Finally, in Callaghan v. Myers, 128 U. S.
617, the Court reiterated that an offcial reporter cannot hold a copy-
right interest in opinions created by judges. But, confronting an issue
not addressed in Wheaton or Banks, the Court upheld the reporter's
copyright interest in several explanatory materials that the reporter
had created himself because they came from an author who had no au-
thority to speak with the force of law.
The animating principle behind the government edicts doctrine is that
no one can own the law. The doctrine gives effect to that principle in
the copyright context through construction of the statutory term “au-
thor.” For purposes of the Copyright Act, judges cannot be the “au-
thor[s]” of “whatever work they perform in their capacity” as lawmak-
ers. Banks, 128 U. S., at 253. Because legislators, like judges, have
the authority to make law, it follows that they, too, cannot be “authors.”
And, as with judges, the doctrine applies to whatever work legislators
perform in their capacity as legislators, including explanatory and proce-
dural materials they create in the discharge of their legislative duties.
Pp. 263–266.
(b) Applying that framework, Georgia's annotations are not copyright-
able. First, the author of the annotations qualifes as a legislator.
Under the Copyright Act, the sole “author” of the annotations is the
Commission, 17 U. S. C. § 201(b), which functions as an arm of the Geor-
gia Legislature in producing the annotations. Second, the Commis-
sion creates the annotations in the discharge of its legislative duties.
Pp. 267–269.
(c) Georgia argues that excluding the OCGA annotations from copy-
right protection conficts with the text of the Copyright Act. First, it
notes that § 101 lists “annotations” among the kinds of works eligible
for copyright protection. That provision, however, refers only to “an-
notations . . . which . . . represent an original work of authorship.”
(Emphasis added.) Georgia's annotations do not ft that description be-
cause they are prepared by a legislative body that cannot be deemed
the “author” of the works it creates in its offcial capacity. Second,
Georgia draws a negative inference from the fact that the Act excludes

Cite
as: 590 U. S. 255 (2020)
257
Syllabus
from copyright protection works prepared by Federal Government off-
cia
ls, without establishing a similar rule for State offcials. §§ 101, 105.
That rule, however, applies to all federal offcials, regardless of the na-
ture and scope of their duties. It does not suggest an intent to displace
the much narrower government edicts doctrine with respect to the
States.
Moving on from the text, Georgia invokes what it views as the offcial
position of the Copyright Offce, as refected in the Compendium of U. S.
Copyright Office Practices. The Compendium, however, is a non-
binding administrative manual and is largely consistent with this
Court's position. Georgia also appeals to copyright policy, but such re-
quests should be addressed to Congress, not the courts.
Georgia attempts to frame the government edicts doctrine to focus
exclusively on whether a particular work has the force of law. But that
understanding cannot be squared with precedent—especially Banks.
Moreover, Georgia's conception of the doctrine as distinguishing be-
tween different categories of content with different effects has less of a
textual footing than the traditional formulation, which focuses on the
identity of the author. Georgia's characterization of the OCGA annota-
tions as non-binding and non-authoritative undersells the practical sig-
nifcance of the annotations to litigants and citizens. And its approach
would logically permit States to hide all non-binding judicial and legisla-
tive work product—including dissents and legislative history—behind a
paywall. Pp. 269–276.
906 F. 3d 1229, affrmed.
Roberts, C. J., delivered the opinion of the Court, in which Sotomayor,
Kagan, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., fled a dis-
senting opinion, in which Alito, J., joined, and in which Breyer, J., joined
as to all but Part II–A and footnote 6, post, p. 276. Ginsburg, J., fled a
dissenting opinion, in which Breyer, J., joined, post, p. 292.
Joshua S. Johnson argued the cause for petitioners. With
him on the briefs were Jeremy C. Marwell, Matthew X.
Etchemendy, John P. Elwood, Anthony B. Askew, Warren
J. Thomas, and Daniel R. Ortiz.
Anthony A. Yang argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Francisco, Assistant Attorney Gen-
eral Hunt, Deputy Solicitor General Stewart, Daniel Tenny,

258 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Counsel
Dana Kaersvang, Regan A. Smith, Kevin R. Amer, Sarah T.
H
arris, and Thomas W. Krause.
Eric F. Citron argued the cause for respondent. With
him on the brief were Thomas C. Goldstein, Erica Oleszczuk
Evans, and Elizabeth H. Rader.*
*Briefs of amici curiae urging reversal were fled for the State of Ar-
kansas et al. by Leslie Rutledge, Attorney General of Arkansas, Nicholas
J. Bronni, Solicitor General, Vincent M. Wagner, Deputy Solicitor General,
and Dylan L. Jacobs and Asher Steinberg, Assistant Solicitors General,
and by the Attorneys General for their respective jurisdictions as follows:
Steve Marshall of Alabama, Kevin G. Clarkson of Alaska, Karl A. Racine
of the District of Columbia; Lawrence G. Wasden of Idaho, Derek Schmidt
of Kansas, Jim Hood of Mississippi, Douglas J. Peterson of Nebraska,
Alan Wilson of South Carolina, Jason Ravnsborg of South Dakota, Her-
bert H. Slatery III of Tennessee, Sean D. Reyes of Utah, Thomas J. Dono-
van, Jr., of Vermont, and Mark R. Herring of Virginia; for the Copyright
Alliance by Nancy E. Wol ff; for the International Code Council, Inc., et al.
by James Hamilton, J. Kevin Fee, Raechel Keay Kummer, and Michael
E. Kenneally; for Matthew Bender & Co., Inc., by Misha Tseytlin, Michael
D. Hobbs, John M. Bowler, and Austin D. Padgett; and for the Software &
Information Industry Association by Andrew J. Pincus.
Briefs of amici curiae urging affrmance were fled for the American
Civil Liberties Union et al. by David D. Cole, Esha Bhandari, Ben
Wizner, Cecillia D. Wang, Sean Young, and Jason Schultz; for the Ameri-
can Intellectual Property Association by Brian D. Wassom and Sheldon
H. Klein; for the American Library Association et al. by Jennifer M.
Urban and Erik Stallman; for the Caselaw Access Project by Christopher
Bavitz; for the Center for Democracy and Technology et al. by Marta F.
Belcher, Lisa A. Hayes, Leslie M. Spencer, and Ilya Shapiro; for Current
and Former Government Offcials by Sarang Vijay Damle; for the Elec-
tronic Privacy Information Center et al. by Marc Rotenberg and Alan
Butler; for the Internet Association by Joseph C. Gratz; for Print Disabil-
ity Advocates by Jessica P. Weber and Brian Wol fman; for the R Street
Institute et al. by Charles Duan; for the Reporters Committee for Free-
dom of the Press et al. by Bruce D. Brown, Kevin M. Goldberg, Bruce D.
Collins, Marcia Hofmann, Barbara W. Wall, Kurt Wimmer, Marshall W.
Anstandig, James Cregan, Tonda F. Rush, Mickey H. Osterreicher, Laura
R. Handman, Thomas R. Burke, Bruce E. H. Johnson, and Bruce W. San-
ford; for the Tennessee Coalition for Open Government et al. by G. S.
Hans; for Shyamkrishna Balganesh et al. by Peter S. Menell, pro se; for
Brendan Keefe by Paul Koster; for Nina Mendelson et al. by Allison

Cite
as: 590 U. S. 255 (2020)
259
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
The Copyright Act grants potent, decades-long monopoly
protection for “original works of authorship.” 17 U. S. C.
§ 102(a). The question in this case is whether that protec-
tion extends to the annotations contained in Georgia's offcial
annotated code.
We hold that it does not. Over a century ago, we recog-
nized a limitation on copyright protection for certain govern-
ment work product, rooted in the Copyright Act's “author-
sh ip” requirement. Under what has been dubbed the
government edicts doctrine, offcials empowered to speak
with the force of law cannot be the authors of—and therefore
cannot copyright—the works they create in the course of
their offcial duties.
We have previously applied that doctrine to hold that non-
binding, explanatory legal materials are not copyrightable
when created by judges who possess the authority to make
and interpret the law. See Banks v. Manchester, 128 U. S.
244 (1888). We now recognize that the same logic applies to
non-binding, explanatory legal materials created by a legis-
lative body vested with the authority to make law. Because
Georgia's annotations are authored by an arm of the legisla-
ture in the course of its legislative duties, the government
edicts doctrine puts them outside the reach of copyright
protection.
M. Zieve, Adina H. Rosenbaum, and Ms. Mendelson, pro se; for 36 Com-
putational Law Scholars by Michael A. Livermore, pro se; for 39 Law
Students et al. by Jef Pearlman; and for 116 Law Librarians et al. by
Kyle K. Courtney.
Briefs of amici curiae were fled for the American Society for Testing
and Materials et al. by Donald B. Verrilli, Jr., Rachel G. Miller-Ziegler,
Kelly M. Klaus, Anjan Choudhury, J. Kevin Fee, Jane Wise, and Clark
Silcox; for the National Association of Home Builders of the United States
by Amy C. Chai and Thomas J. Ward; and for Next-Generation Legal
Research Platforms and Databases by Phillip R. Malone.

260 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
I
A
The
State of Georgia has one offcial code—the “Offcial
Code of Georgia Annotated,” or OCGA. The frst page of
each volume of the OCGA boasts the State's offcial seal and
announces to readers that it is “Published Under Authority
of the State.”
The OCGA includes the text of every Georgia statute cur-
rently in force, as well as various non-binding supplementary
materials. At issue in this case is a set of annotations that
appear beneath each statutory provision. The annotations
generally include summaries of judicial decisions applying a
given provision, summaries of any pertinent opinions of the
state attorney general, and a list of related law review arti-
cles and similar reference materials. In addition, the anno-
tations often include editor's notes that provide information
about the origins of the statutory text, such as whether it
derives from a particular judicial decision or resembles an
older provision that has been construed by Georgia courts.
See, e. g., OCGA §§ 51–1–1, 53–4–2 (2019).
The OCGA is assembled by a state entity called the Code
Revision Commission. In 1977, the Georgia Legislature es-
tablished the Commission to recodify Georgia law for the
frst time in decades. The Commission was (and remains)
tasked with consolidating disparate bills into a single Code
for reenactment by the legislature and contracting with a
third party to produce the annotations. A majority of the
Commission's 15 members must be members of the Georgia
Senate or House of Representatives. The Commission re-
ceives funding through appropriations “provided for the leg-
islative branch of state government.” OCGA § 28–9–2(c)
(2018). And it is staffed by the Offce of Legislative Coun-
sel, which is obligated by statute to provide services “for the
legislative branch of government.” §§ 28–4–3(c)(4), 28–9–4.
Under the Georgia Constitution, the Commission's role in

Cite
as: 590 U. S. 255 (2020)
261
Opinion of the Court
compiling the statutory text and accompanying annotations
fa
lls “within the sphere of legislative authority.” Harrison
Co. v. Code Revision Comm'n, 244 Ga. 325, 330, 260 S. E. 2d
30, 34 (1979).
Each year, the Commission submits its proposed statutory
text and accompanying annotations to the legislature for ap-
proval. The legislature then votes to do three things: (1)
“enact[ ]” the “statutory portion of the codifcation of Georgia
laws”; (2) “merge[ ]” the statutory portion “with [the] annota-
tions”; and (3) “publish[ ]” the fnal merged product “by au-
thority of the state” as “the `Offcial Code of Georgia Anno-
tated.' ” OCGA § 1–1–1 (2019); see Code Revision Comm'n
v. Public.Resource.Org, Inc., 906 F. 3d 1229, 1245, 1255
(CA11 2018); Tr. of Oral Arg. 8.
The annotations in the current OCGA were prepared in
the frst instance by Matthew Bender & Co., Inc., a division
of the LexisNexis Group, pursuant to a work-for-hire agree-
ment with the Commission. The agreement between Lexis
and the Commission states that any copyright in the OCGA
vests exclusively in “the State of Georgia, acting through the
Commission.” App. 567. Lexis and its army of researchers
perform the lion's share of the work in drafting the annota-
tions, but the Commission supervises that work and specifes
what the annotations must include in exacting detail. See
906 F. 3d, at 1243–1244; App. 269–278, 286–427 (Commission
specifcations). Under the agreement, Lexis enjoys the
exclusive right to publish, distribute, and sell the OCGA. In
exchange, Lexis has agreed to limit the price it may charge
for the OCGA and to make an unannotated version of
the statutory text available to the public online for free. A
hard copy of the complete OCGA currently retails for
$412.00.
B
Public.Resource.Org (PRO) is a nonproft organization that
aims to facilitate public access to government records and
legal materials. Without permission, PRO posted a digital

262 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
version of the OCGA on various websites, where it could
be
downloaded by the public without charge. PRO also dis-
tributed copies of the OCGA to various organizations and
Georgia offcials.
In response, the Commission sent PRO several cease-and-
desist letters asserting that PRO's actions constituted un-
lawful copyright infringement. When PRO refused to halt
its distribution activities, the Commission sued PRO on be-
half of the Georgia Legislature and the State of Georgia for
copyright infringement. The Commission limited its asser-
tion of copyright to the annotations described above; it did
not claim copyright in the statutory text or numbering.
PRO counterclaimed, seeking a declaratory judgment that
the entire OCGA, including the annotations, fell in the pub-
lic domain.
The District Court sided with the Commission. The court
acknowledged that the annotations in the OCGA presented
“an unusual case because most offcial codes are not anno-
tated and most annotated codes are not offcial.” Code Revi-
sion Comm'n v. Public.Resource.Org, Inc., 244 F. Supp. 3d
1350, 1356 (ND Ga. 2017). But, ultimately, the court con-
cluded that the annotations were eligible for copyright pro-
tection because they were “not enacted into law” and lacked
“the force of law.” Ibid. In light of that conclusion, the
court granted partial summary judgment to the Commission
and entered a permanent injunction requiring PRO to cease
its distribution activities and to remove the digital copies of
the OCGA from the internet.
The Eleventh Circuit reversed. 906 F. 3d 1229. The
court began by reviewing the three 19th-century cases in
which we articulated the government edicts doctrine. See
Wheaton v. Peters, 8 Pet. 591 (1834); Banks v. Manchester,
128 U. S. 244 (1888); Callaghan v. Myers, 128 U. S. 617 (1888).
The court understood those cases to establish a “rule” based
on an interpretation of the statutory term “author” that
“works created by courts in the performance of their offcial
duties did not belong to the judges” but instead fell “in the

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as: 590 U. S. 255 (2020)
263
Opinion of the Court
public domain.” 906 F. 3d, at 1239. In the court's view,
that
rule “derive[s] from frst principles about the nature of
law in our democracy.” Ibid. In a democracy, the court
reasoned, “the People” are “the constructive authors” of the
law, and judges and legislators are merely “draftsmen . . . ex-
ercising delegated authority.” Ibid. The court therefore
deemed the “ultimate inquiry” to be whether a work is “at-
tributable to the constructive authorship of the People.”
Id., at 1242. The court identifed three factors to guide that
inquiry: “the identity of the public offcial who created the
work; the nature of the work; and the process by which the
work was produced.” Id., at 1254. The court found that
each of those factors cut in favor of treating the OCGA anno-
tations as government edicts authored by the People. It
therefore rejected the Commission's assertion of copyright,
vacated the injunction against PRO, and directed that judg-
ment be entered for PRO.
We granted certiorari. 588 U. S. 904 (2019).
II
We hold that the annotations in Georgia's Offcial Code are
ineligible for copyright protection, though for reasons dis-
tinct from those relied on by the Court of Appeals. A care-
ful examination of our government edicts precedents reveals
a straightforward rule based on the identity of the author.
Under the government edicts doctrine, judges—and, we now
confrm, legislators—may not be considered the “authors” of
the works they produce in the course of their offcial duties
as judges and legislators. That rule applies regardless of
whether a given material carries the force of law. And it
applies to the annotations here because they are authored by
an arm of the legislature in the course of its offcial duties.
A
We begin with precedent. The government edicts doc-
trine traces back to a trio of cases decided in the 19th cen-

264 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
tury. In this Court's frst copyright case, Wheaton v. Peters,
8
Pet. 591 (1834), the Court's third Reporter of Decisions,
Wheaton, sued the fourth, Peters, unsuccessfully asserting a
copyright interest in the Justices' opinions. Id., at 617 (ar-
gument). In Wheaton's view, the opinions “must have be-
longed to some one” because “they were new, original,” and
much more “elaborate” than law or custom required. Id., at
615. Wheaton argued that the Justices were the authors
and had assigned their ownership interests to him through a
tacit “gift.” Id., at 614. The Court unanimously rejected
that argument, concluding that “no reporter has or can have
any copyright in the written opinions delivered by this
court” and that “the judges thereof cannot confer on any re-
porter any such right.” Id., at 668 (opinion).
That conclusion apparently seemed too obvious to adorn
with further explanation, but the Court provided one a half
century later in Banks v. Manchester, 128 U. S. 244 (1888).
That case concerned whether Wheaton's state-court counter-
part, the offcial reporter of the Ohio Supreme Court, held
a copyright in the judges' opinions and several non-binding
explanatory materials prepared by the judges. Id., at 249–
251. The Court concluded that he did not, explaining that
“the judge who, in his judicial capacity, prepares the opinion
or decision, the statement of the case and the syllabus or
head note” cannot “be regarded as their author or their pro-
prietor, in the sense of [the Copyright Act].” Id., at 253.
Pursuant to “a judicial consensus” dating back to Wheaton,
judges could not assert copyright in “whatever work they
perform in their capacity as judges.” Banks, 128 U. S., at
253 (emphasis in original). Rather, “[t]he whole work done
by the judges constitutes the authentic exposition and inter-
pretation of the law, which, binding every citizen, is free for
publication to all.” Ibid. (citing Nash v. Lathrop, 142 Mass.
29, 6 N. E. 559 (1886)).
In a companion case decided later that Term, Callaghan v.
Myers, 128 U. S. 617 (1888), the Court identifed an important
limiting principle. As in Wheaton and Banks, the Court re-

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as: 590 U. S. 255 (2020)
265
Opinion of the Court
jected the claim that an offcial reporter held a copyright
i
nterest in the judges' opinions. But, resolving an issue not
addressed in Wheaton and Banks, the Court upheld the re-
porter's copyright interest in several explanatory materials
that the reporter had created himself: headnotes, syllabi, ta-
bles of contents, and the like. Callaghan, 128 U. S., at 645,
647. Although these works mirrored the judge-made mate-
rials rejected in Banks, they came from an author who had
no authority to speak with the force of law. Because the
reporter was not a judge, he was free to “obtain[ ] a copy-
right” for the materials that were “the result of his [own]
intellectual labor.” 128 U. S., at 647.
These cases establish a straightforward rule: Because
judges are vested with the authority to make and interpret
the law, they cannot be the “author” of the works they
prepare “in the discharge of their judicial duties.” Banks,
128 U. S., at 253. This rule applies both to binding works
(such as opinions) and to non-binding works (such as head-
notes and syllabi). Ibid. It does not apply, however, to
works created by government offcials (or private parties)
who lack the authority to make or interpret the law, such as
court reporters. Compare ibid. with Callaghan, 128 U. S.,
at 647.
The animating principle behind this rule is that no one can
own the law. “Every citizen is presumed to know the law,”
and “it needs no argument to show . . . that all should have
free access” to its contents. Nash, 142 Mass., at 35, 6 N. E.,
at 560 (cited by Banks, 128 U. S., at 253–254). Our cases
give effect to that principle in the copyright context through
construction of the statutory term “author.” Id., at 253.
1
Rather than attempting to catalog the materials that consti-
1
The Copyright Act of 1790 granted copyright protection to “the author
and authors” of qualifying works. Act of May 31, 1790, § 1, 1 Stat. 124.
This author requirement appears in the current Copyright Act at § 102(a),
which limits protection to “original works of authorship.” 17 U. S. C.
§ 102(a) (emphasis added); see also § 201(a) (copyright “vests initially in the
author or authors of the work”).

266 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
tute “the law,” the doctrine bars the offcials responsible for
creati
ng the law from being considered the “author[s]” of
“whatever work they perform in their capacity” as lawmak-
ers. Ibid. (emphasis added). Because these offcials are
generally empowered to make and interpret law, their
“whole work” is deemed part of the “authentic exposition
and interpretation of the law” and must be “free for publica-
tion to all.” Ibid.
If judges, acting as judges, cannot be “authors” because of
their authority to make and interpret the law, it follows that
legislators, acting as legislators, cannot be either. Courts
have thus long understood the government edicts doctrine
to apply to legislative materials. See, e. g., Nash, 142 Mass.,
at 35, 6 N. E., at 560 ( judicial opinions and statutes stand
“on substantially the same footing ” for purposes of the gov-
ernment edicts doctrine); Howell v. Miller, 91 F. 129, 130–
131, 137–138 (CA6 1898) (Harlan, Circuit Justice, joined by
then-Circuit Judge Taft) (analyzing statutes and supplemen-
tary materials under Banks and Callaghan and concluding
that the materials were copyrightable because they were
prepared by a private compiler).
Moreover, just as the doctrine applies to “whatever work
[ judges] perform in their capacity as judges,” Banks, 128
U. S., at 253, it applies to whatever work legislators perform
in their capacity as legislators. That of course includes fnal
legislation, but it also includes explanatory and procedural
materials legislators create in the discharge of their legisla-
tive duties. In the same way that judges cannot be the au-
thors of their headnotes and syllabi, legislators cannot be the
authors of (for example) their foor statements, committee
reports, and proposed bills. These materials are part of the
“whole work done by [legislators],” so they must be “free for
publication to all.” Ibid.
Under our precedents, therefore, copyright does not vest
in works that are (1) created by judges and legislators (2) in
the course of their judicial and legislative duties.

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as: 590 U. S. 255 (2020)
267
Opinion of the Court
B
1
Apply
ing that framework, Georgia's annotations are not
copyrightable. The frst step is to examine whether their
purported author qualifes as a legislator.
As we have explained, the annotations were prepared in
the frst instance by a private company (Lexis) pursuant to
a work-for-hire agreement with Georgia's Code Revision
Commission. The Copyright Act therefore deems the Com-
mission the sole “author” of the work. 17 U. S. C. § 201(b).
Although Lexis expends considerable effort preparing the
annotations, for purposes of copyright that labor redounds to
the Commission as the statutory author. Georgia agrees
that the author is the Commission. Brief for Petitioners 25.
The Commission is not identical to the Georgia Legisla-
ture, but functions as an arm of it for the purpose of pro-
ducing the annotations. The Commission is created by the
legislature, for the legislature, and consists largely of legisla-
tors. The Commission receives funding and staff designated
by law for the legislative branch. Signifcantly, the annota-
tions the Commission creates are approved by the legislature
before being “merged” with the statutory text and published
in the offcial code alongside that text at the legislature's
direction. OCGA § 1–1–1; see 906 F. 3d, at 1245, 1255; Tr. of
Oral Arg. 8.
If there were any doubt about the link between the Com-
mission and the legislature, the Georgia Supreme Court has
dispelled it by holding that, under the Georgia Constitution,
“the work of the Commission; i. e., selecting a publisher and
contracting for and supervising the codifcation of the laws
enacted by the General Assembly, including court interpre-
tations thereof, is within the sphere of legislative author-
ity.” Harrison Co., 244 Ga., at 330, 260 S. E. 2d, at 34
(emphasis added). That holding is not limited to the
Commission's role in codifying the statutory text. The

268 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
Commission's “legislative authority” specifcally includes its
“codifcati
on of . . . court interpretations” of the State's laws.
Ibid. Thus, as a matter of state law, the Commission wields
the legislature's authority when it works with Lexis to
produce the annotations. All of this shows that the Com-
mission serves as an extension of the Georgia Legislature
in preparing and publishing the annotations. And it helps
explain why the Commission brought this suit asserting
copyright in the annotations “on behalf of and for the beneft
of ” the Georgia Legislature and the State of Georgia.
App. 20.
2
2
The second step is to determine whether the Commission
creates the annotations in the “discharge” of its legislative
“duties.” Banks, 128 U. S., at 253. It does. Although the
annotations are not enacted into law through bicameralism
and presentment, the Commission's preparation of the anno-
tations is under Georgia law an act of “legislative authority,”
Harrison Co., 244 Ga., at 330, 260 S. E. 2d, at 34, and the
annotations provide commentary and resources that the leg-
islature has deemed relevant to understanding its laws.
Georgia and Justice Ginsburg emphasize that the annota-
tions do not purport to provide authoritative explanations of
the law and largely summarize other materials, such as judi-
cial decisions and law review articles. See post, at 294–295
(dissenting opinion). But that does not take them outside
the exercise of legislative duty by the Commission and legis-
lature. Just as we have held that the “statement of the case
and the syllabus or head note” prepared by judges fall within
the “work they perform in their capacity as judges,” Banks,
128 U. S., at 253, so too annotations published by legislators
2
Justice Thomas does not dispute that the Commission is an extension
of the legislature; he instead faults us for highlighting the multiple fea-
tures of the Commission that make clear that this is so. See post, at 291
(dissenting opinion).

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as: 590 U. S. 255 (2020)
269
Opinion of the Court
alongside the statutory text fall within the work legislators
per
form in their capacity as legislators.
In light of the Commission's role as an adjunct to the legis-
lature and the fact that the Commission authors the annota-
tions in the course of its legislative responsibilities, the anno-
tations in Georgia's Offcial Code fall within the government
edicts doctrine and are not copyrightable.
III
Georgia resists this conclusion on several grounds. At the
outset, Georgia advances two arguments for why, in its view,
excluding the OCGA annotations from copyright protection
conficts with the text of the Copyright Act. Both are
unavailing.
First, Georgia notes that § 101 of the Act specifcally lists
“annotations” among the kinds of works eligible for copy-
right protection. But that provision refers only to “anno-
tations . . . which . . . represent an original work of au-
thorship.” 17 U. S. C. § 101 (emphasis added). The whole
point of the government edicts doctrine is that judges and
legislators cannot serve as authors when they produce works
in their offcial capacity. While the reference to “annota-
tions” in § 101 may help explain why supplemental, explana-
tory materials are copyrightable when prepared by a private
party, or a non-lawmaking offcial like the reporter in Calla-
ghan, it does not speak to whether those same materials are
copyrightable when prepared by a judge or a legislator. In
the same way that judicial materials are ineligible for protec-
tion even though they plainly qualify as “[l]iterary works . . .
expressed in words,” ibid., legislative materials are ineligi-
ble for protection even if they happen to ft the description
of otherwise copyrightable “annotations.”
Second, Georgia draws a negative inference from the fact
that the Act excludes from copyright protection “work[s] pre-
pared by an offcer or employee of the United States Govern-
ment as part of that person's offcial duties” and does not

270 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
establish a similar rule for the States. § 101; see also § 105.
But
the bar on copyright protection for federal works sweeps
much more broadly than the government edicts doctrine
does. That bar applies to works created by all federal “off-
cer[s] or employee[s],” without regard for the nature of their
position or scope of their authority. Whatever policy rea-
sons might justify the Federal Government's decision to for-
feit copyright protection for its own proprietary works, that
federal rule does not suggest an intent to displace the much
narrower government edicts doctrine with respect to the
States. That doctrine does not apply to non-lawmaking of-
fcials, leaving States free to assert copyright in the vast
majority of expressive works they produce, such as those
created by their universities, libraries, tourism offces, and
so on.
More generally, Georgia suggests that we should resist
applying our government edicts precedents to the OCGA an-
notations because our 19th-century forebears interpreted the
statutory term author by reference to “public policy”—an
approach that Georgia believes is incongruous with the
“modern era” of statutory interpretation. Brief for Peti-
tioners 21 (internal quotation marks omitted). But we are
particularly reluctant to disrupt precedents interpreting lan-
guage that Congress has since reenacted. As we explained
last Term in Helsinn Healthcare S. A. v. Teva Pharmaceuti-
cals USA, Inc., 586 U. S. 123 (2019), when Congress “adopt[s]
the language used in [an] earlier act,” we presume that Con-
gress “adopted also the construction given by this Court to
such language, and made it a part of the enactment.” Id.,
at 131 (quoting Shapiro v. United States, 335 U. S. 1, 16
(1948)). A century of cases have rooted the government
edicts doctrine in the word “author,” and Congress has re-
peatedly reused that term without abrogating the doctrine.
The term now carries this settled meaning, and “critics of
our ruling can take their objections across the street, [where]

Cite
as: 590 U. S. 255 (2020)
271
Opinion of the Court
Congress can correct any mistake it sees.” Kimble v. Mar-
v
el Entertainment, LLC, 576 U. S. 446, 456 (2015).
3
Moving on from the text, Georgia invokes what it views
as the offcial position of the Copyright Offce, as refected in
the Compendium of U. S. Copyright Offce Practices (Com-
pendium). But, as Georgia concedes, the Compendium is a
non-binding administrative manual that at most merits def-
erence under Skidmore v. Swift & Co., 323 U. S. 134 (1944).
That means we must follow it only to the extent it has the
“power to persuade.” Id., at 140. Because our precedents
answer the question before us, we fnd any competing guid-
ance in the Compendium unpersuasive.
In any event, the Compendium is largely consistent with
our decision. Drawing on Banks, it states that, “[a]s a mat-
ter of longstanding public policy, the U. S. Copyright Offce
will not register a government edict that has been issued by
any state, local, or territorial government, including legisla-
tive enactments, judicial decisions, administrative rulings,
public ordinances, or similar types of offcial legal materi-
als.” Compendium § 313.6(C)(2) (rev. 3d ed. 2017) (emphasis
added). And, under Banks, what counts as a “similar” ma-
3
Justice Thomas disputes the applicability of the Helsinn Healthcare
presumption because States have asserted copyright in statutory annota-
tions over the years notwithstanding our government edicts precedents.
Post, at 286–287. In Justice Thomas's view, those assertions prove that
our precedents could not have provided clear enough guidance for Con-
gress to incorporate. But that inference from state behavior proves too
much. The same study cited by Justice Thomas to support a practice
of claiming copyright in non-binding annotations also reports that “many
states claim copyright interest in their primary law materials,” including
statutes and regulations. Dmitrieva, State Ownership of Copyrights in
Primary Law Materials, 23 Hastings Com. & Entertainment L. J. 81, 109
(2000) (emphasis added). Justice Thomas concedes that such assertions
are plainly foreclosed by our government edicts precedents. Post, at 279.
That interested parties have pursued ambitious readings of our precedents
does not mean those precedents are incapable of providing meaningful
guidance to us or to Congress.

272 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
terial depends on what kind of offcer created the material
(
i. e., a judge) and whether the offcer created it in the
course of offcial (i. e., judicial) duties. See Compendium
§ 313.6(C)(2) (quoting Banks, 128 U. S., at 253, for the propo-
sition that copyright cannot vest “in the products of the labor
done by judicial offcers in the discharge of their judicial
duties”).
The Compendium goes on to observe that “the Offce may
register annotations that summarize or comment upon legal
materials . . . unless the annotations themselves have the
force of law.” § 313.6(C)(2). But that broad statement—
true of annotations created by offcials such as court report-
ers that lack the authority to make or interpret the law—
does not engage with the critical issue of annotations created
by judges or legislators in their offcial capacities. Because
the Compendium does not address that question and other-
wise echoes our government edicts precedents, it is of little
relevance here.
Georgia also appeals to the overall purpose of the Copy-
right Act to promote the creation and dissemination of cre-
ative works. Georgia submits that, without copyright pro-
tection, Georgia and many other States will be unable to
induce private parties like Lexis to assist in preparing af-
fordable annotated codes for widespread distribution. That
appeal to copyright policy, however, is addressed to the
wrong forum. As Georgia acknowledges, “[I]t is generally
for Congress, not the courts, to decide how best to pursue
the Copyright Clause's objectives.” Eldred v. Ashcroft, 537
U. S. 186, 212 (2003). And that principle requires adherence
to precedent when, as here, we have construed the statutory
text and “tossed [the ball] into Congress's court, for accept-
ance or not as that branch elects.” Kimble, 576 U. S., at 456.
Turning to our government edicts precedents, Georgia in-
sists that they can and should be read to focus exclusively
on whether a particular work has “the force of law.” Brief
for Petitioners 32 (capitalization deleted). Justice Thomas

Cite
as: 590 U. S. 255 (2020)
273
Opinion of the Court
appears to endorse the same view. See post, at 279. But
that
framing has multiple faws.
Most obviously, it cannot be squared with the reasoning
or results of our cases—especially Banks. Banks, following
Wheaton and the “judicial consensus” it inspired, denied
copyright protection to judicial opinions without excepting
concurrences and dissents that carry no legal force. 128
U. S., at 253 (emphasis deleted). As every judge learns the
hard way, “comments in [a] dissenting opinion” about legal
principles and precedents “are just that: comments in a dis-
senting opinion.” Railroad Retirement Bd. v. Fritz, 449
U. S. 166, 177, n. 10 (1980). Yet such comments are covered
by the government edicts doctrine because they come from
an offcial with authority to make and interpret the law.
Indeed, Banks went even further and withheld copyright
protection from headnotes and syllabi produced by judges.
128 U. S., at 253. Surely these supplementary materials do
not have the force of law, yet they are covered by the doc-
trine. The simplest explanation is the one Banks provided:
These non-binding works are not copyrightable because of
who creates them—judges acting in their judicial capacity.
See ibid.
The same goes for non-bi ndi ng leg islative mater ia ls
produced by legislative bodies acting in a legislative capacity.
There is a broad array of such works ranging from foor
statements to proposed bills to committee reports. Under
the logic of Georgia's “force of law” test, States would own
such materials and could charge the public for access to
them.
Furthermore, despite Georgia's and Justice Thomas's
purported concern for the text of the Copyright Act, their
conception of the government edicts doctrine has less of a
textual footing than the traditional formulation. The tex-
tual basis for the doctrine is the Act's “authorship” require-
ment, which unsurprisingly focuses on—the author. Jus-
tice Thomas urges us to dig deeper to “the root” of our

274 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
government edicts precedents. Post, at 280. But, in our
v
iew, the text is the root. The Court long ago interpreted
the word “author” to exclude offcials empowered to speak
with the force of law, and Congress has carried that meaning
forward in multiple iterations of the Copyright Act. This
textual foundation explains why the doctrine distinguishes
between some authors (who are empowered to speak with
the force of law) and others (who are not). Compare Calla-
ghan, 128 U. S., at 647, with Banks, 128 U. S., at 253. But
the Act's reference to “authorship” provides no basis for
Georgia's rule distinguishing between different categories of
content with different effects.
4
Georgia minimizes the OCGA annotations as non-binding
and non-authoritative, but that description undersells their
practical signifcance. Imagine a Georgia citizen interested
in learning his legal rights and duties. If he reads the
economy-class version of the Georgia Code available online,
he will see laws requiring political candidates to pay hefty
qualifcation fees (with no indigency exception), criminalizing
broad categories of consensual sexual conduct, and exempt-
ing certain key evidence in criminal trials from standard evi-
dentiary limitations—with no hint that important aspects of
those laws have been held unconstitutional by the Georgia
4
Instead of accepting our predecessors' textual reasoning at face value,
Justice Thomas conjures a trinity of alternative “origin[s] and justifca-
tion[s]” for the government edicts doctrine that the Court might have had
in mind. See post, at 280–282. Without committing to one or all of these
possibilities, Justice Thomas suggests that each would yield a rule that
requires federal courts to pick out the subset of judicial and legislative
materials that independently carry the force of law. But a Court moti-
vated by Justice Thomas's three-fold concerns might just as easily have
read them as supporting a rule that prevents the offcials responsible for
creating binding materials from qualifying as an “author.” Regardless, it
is more “[ ]consistent with the judicial role” to apply the reasoning and
results the Court voted on and committed to writing than to speculate
about what practical considerations our predecessors “may have had . . . in
mind,” what history “may [have] suggest[ed],” or what constitutional con-
cerns “may have animated” our government edicts precedents. Ibid.

Cite
as: 590 U. S. 255 (2020)
275
Opinion of the Court
Supreme Court. See OCGA §§ 21–2–131, 16–6–2, 16–6–18,
16
–15–9 (available at www.legis.ga.gov). Meanwhile, frst-
class readers with access to the annotations will be assured
that these laws are, in crucial respects, unenforceable relics
that the legislature has not bothered to narrow or repeal.
See §§ 21–2–131, 16–6–2, 16–6–18, 16–15–9 (available at
https://store.lexisnexis.com/products/official-code-of-georgia-
annotated-skuSKU-6647 for $412.00).
If everything short of statutes and opinions were copy-
rightable, then States would be free to offer a whole range
of premium legal works for those who can afford the extra
beneft. A State could monetize its entire suite of legisla-
tive history. With today's digital tools, States might even
launch a subscription or pay-per-law service.
There is no need to assume inventive or nefarious behavior
for these concerns to become a reality. Unlike other forms
of intellectual property, copyright protection is both instant
and automatic. It vests as soon as a work is captured in a
tangible form, triggering a panoply of exclusive rights that
can last over a century. 17 U. S. C. §§ 102, 106, 302. If
Georgia were correct, then unless a State took the affrma-
tive step of transferring its copyrights to the public domain,
all of its judges' and legislators' non-binding legal works
would be copyrighted. And citizens, attorneys, nonprofts,
and private research companies would have to cease all copy-
ing, distribution, and display of those works or risk severe
and potentially criminal penalties. §§ 501–506. Some af-
fected parties might be willing to roll the dice with a poten-
tial fair use defense. But that defense, designed to accom-
modate First Amendment concer ns, is notor i ously fact
sensitive and often cannot be resolved without a trial. Cf.
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U. S. 539, 552, 560–561 (1985). The less bold among us
would have to think twice before using offcial legal works
that illuminate the law we are all presumed to know and
understand.

276 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Thomas, J., dissenting
Thankfully, there is a clear path forward that avoids these
concer
ns—the one we are already on. Instead of examining
whether given material carries “the force of law,” we ask
only whether the author of the work is a judge or a legislator.
If so, then whatever work that judge or legislator produces
in the course of his judicial or legislative duties is not copy-
rightable. That is the framework our precedents long ago
established, and we adhere to those precedents today.
***
For the foregoing reasons, we affrm the judgment of the
Eleventh Circuit.
It is so ordered.
Justice Thomas, with whom Justice Alito joins, and
with whom Justice Breyer joins as to all but Part II–A
and footnote 6, dissenting.
According to the majority, this Court's 19th-century “gov-
ernment edicts” precedents clearly stand for the proposition
that “judges and legislators cannot serve as authors [for
copyright purposes] when they produce works in their offcial
capacity.” Ante, at 269. And, after straining to conclude
that the Georgia Code Revision Commission (Commission) is
an arm of the Georgia Legislature, ante, at 267–268, the ma-
jority concludes that Georgia cannot hold a copyright in the
annotations that are included as part of the Offcial Code of
Georgia Annotated (OCGA). This ruling will likely come as
a shock to the 25 other jurisdictions—22 States, 2 Territo-
ries, and the District of Columbia—that rely on arrange-
ments similar to Georgia's to produce annotated codes. See
Brief for State of Arkansas et al. as Amici Curiae 15, and
App. to id., at 1. Perhaps these jurisdictions all overlooked
this Court's purportedly clear guidance. Or perhaps the
widespread use of these arrangements indicates that today's
decision extends the government edicts doctrine to a new
context, rather than simply “confrm[ing]” what the prece-

Cite
as: 590 U. S. 255 (2020)
277
Thomas, J., dissenting
dents have always held. See ante, at 263. Because I be-
l
ieve we should “leave to Congress the task of deciding
whether the Copyright Act needs an upgrade,” American
Broadcasting Cos. v. Aereo, Inc., 573 U. S. 431, 463 (2014)
(Scalia, J., dissenting), I respectfully dissent.
I
Like the majority, I begin with the three 19th-century
precedents that the parties agree provide the foundation for
the government edicts doctrine.
In Wheaton v. Peters, 8 Pet. 591 (1834), the Court frst
regarded it as self-evident that judicial opinions cannot be
copyrighted either by the judges who signed them or by a
reporter under whose auspices they are published. Con-
gress provided that, in return for a salary of $1,000, the
Reporter of Decisions for this Court would prepare reports
consisting of judicial opinions and additional materials
summar i zi ng the cases. Id., at 614, 617 (arg ument).
Wheaton, one of this Court's earliest Reporters, argued that
he owned a copyright for the entirety of his reports. He
contended that he had “acquired the right to the opinions by
judges' gift” once they became a part of his volume. Id., at
614 (same). The Court ultimately remanded on the question
whether Wheaton had complied with the Copyright Act's
procedural requirements. Id., at 667–668. In doing so, it
observed in dicta that “the court [was] unanimously of [the]
opinion, that no reporter has or can have any copyright in
the written opinions delivered by this court; and that the
judges thereof cannot confer on any reporter any such right.”
Id., at 668.
Fifty-four years later, the Court returned to the same sub-
ject, suggesting a doctrinal basis for the rule that judicial
opinions and certain closely related materials cannot be
copyrighted. In Banks v. Manchester, 128 U. S. 244 (1888),
the state-authorized publisher of the Ohio Supreme Court's
decisions, Banks & Brothers, sued a competing publisher for

278 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Thomas, J., dissenting
copyright infringement. The competing publisher repro-
duced
portions from Banks' reports, including Ohio Supreme
Court decisions, statements of the cases, and syllabi, all of
which were originally prepared by the opinion's authoring
judge. This Court held that these materials were not the
proper subject of copyright. In reaching that conclusion,
the Court grounded its analysis in its interpretation of the
word “author” in the Copyright Act. It anchored this inter-
pretation in the “public policy” that “the judge who, in his
judicial capacity, prepares the opinion or decision [and other
materials]” is not “regarded as their author or their proprie-
tor, in the sense of [the Copyright Act], so as to be able to
confer any title by assignment.” Banks, 128 U. S., at 253.
The Court supported this conclusion by stating that “there
has always been a judicial consensus . . . that no copyright
could[,] under the statutes passed by Congress, be secured
in the products of the labor done by judicial offcers in the
discharge of their judicial duties.” Ibid. (emphasis deleted).
And the Court observed that this rule refected the view
that the “authentic exposition and interpretation of the law
. . . is free for publication to all,” which in turn prevents a
judge from qualifying as an author. Ibid.
Importantly, the Court also briefy discussed whether the
State of Ohio could directly hold the copyright. In answer-
ing this question, the Court did not suggest that States were
categorically prohibited from holding copyrights as authors
or assignees. Instead, the Court simply noted that the
State fell outside the scope of the Act because it was not a
“resident” or “citizen of the United States,” as then required
by statute, and because it did not meet other statutory crite-
ria. Ibid. The Court felt it necessary to observe, however,
that “[w]hether the State could take out a copyright for it-
self, or could enjoy the beneft of one taken out by an individ-
ual for it, as the assignee of a citizen of the United States or
a resident therein, who should be the author of a book, is a
question not involved in the present case, and we refrain
from considering it.” Ibid.

Cite
as: 590 U. S. 255 (2020)
279
Thomas, J., dissenting
Finally, in Callaghan v. Myers, 128 U. S. 617 (1888), the
Cour
t addressed the limits of the government edicts doc-
trine. In that case, the Court settled another dispute be-
tween a publisher of court decisions and an alleged infringer.
The plaintiff purchased the proprietary rights to the reports
prepared by the Illinois Supreme Court's reporter of deci-
sions, Freeman, including the copyright to the reports. Un-
like in Banks, these reports also contained material authored
by Freeman. Callaghan, 128 U. S., at 645. The alleged in-
fringers copied the judicial decisions and Freeman's materi-
als. In fnding for the plaintiff, this Court reiterated that
“there can be no copyright in the opinions of the judges, or
in the work done by them in their offcial capacity as judges.”
Id., at 647 (citing Banks, 128 U. S. 244). But the Court con-
cluded that “no [similar] ground of public policy” justifed de-
nying a state offcial a copyright “cover[ing] the matter
which is the result of his intellectual labor.” Callaghan, 128
U. S., at 647.
II
These precedents establish that judicial opinions cannot be
copyrighted. But they do not exclude from copyright pro-
tection notes that are prepared by an offcial court reporter
and published together with the reported opinions. There
is no apparent reason why the same logic would not apply
to statutes and regulations. Thus, it must follow from our
precedents that statutes and regulations cannot be copy-
righted, but accompanying notes lacking legal force can be.
See Howell v. Miller, 91 F. 129 (CA6 1898) (Harlan, J.) (ex-
plaining that, under Banks and Callaghan, annotations to
Michigan statutes could be copyrighted).
A
It is fair to say that the Court's 19th-century decisions do
not provide any extended explanation of the basis for the
government edicts doctrine. The majority is nonetheless
content to accept these precedents refexively, without exam-
ining the origin or validity of the rule they announced. For

280 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Thomas, J., dissenting
the majority, it is enough that the precedents established a
r
ule that “seemed too obvious to adorn with further explana-
tion.” Ante, at 264. But the contours of the rule were far
from clear, and to understand the scope of the doctrine, we
must explore its underlying rationale.
In my view, the majority's uncritical extrapolation of prec-
edent is inconsistent with the judicial role. An unwilling-
ness to examine the root of a precedent has led to the sprout-
ing of many noxious weeds that distort the meaning of the
Constitution and statutes alike. Although we have not been
asked to revisit these precedents, it behooves us to explore
the origin of and justifcation for them, especially when we
are asked to apply their rule for the frst time in over 130
years.
The Court's precedents suggest three possible grounds
supporting their conclusion. In Banks, the Court referred
to the meaning of the term “author” in copyright law.
While the Court did not develop this argument, it is conceiv-
able that the contemporaneous public meaning of the term
“author” was narrower in the copyright context than in ordi-
nary speech. At the time this Court decided Banks, the
Copyright Act provided protection for books, maps, prints,
engravings, musical and dramatic compositions, photographs,
and works of art.
1
Judicial opinions differ markedly from
these works. Books, for instance, express the thoughts of
their authors. They typically have no power beyond the
ability of their words to infuence readers, and they usually
are published at private expense. Judicial opinions, on the
other hand, do not simply express the thoughts of the judges
who write or endorse them. Instead, they elaborate and
apply rules of law that, in turn, represent the implementa-
tion of the will of the people. Unlike other copyrightable
works of authorship, judicial opinions have binding legal ef-
fect, and they are produced and issued at public expense.
1
See 1 Stat. 124; ch. 36, 2 Stat. 171; ch. 16, 4 Stat. 436; ch. 169, 11 Stat.
138–139; ch. 126, 13 Stat. 540; ch. 230, 16 Stat. 212.

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as: 590 U. S. 255 (2020)
281
Thomas, J., dissenting
Moreover, copyright law understands an author to be one
whose
work will be encouraged by the grant of an exclusive
right. See Kirtsaeng v. John Wiley & Sons, Inc., 579 U. S.
197, 204 (2016). But judges, when acting in an offcial capac-
ity, do not ft that description. The Court in Banks may
have had these differences in mind when it concluded that a
judge fell outside the scope of the term “author.” 128 U. S.,
at 253.
History may also suggest a narrower meaning of “author”
in the copyright context. In England, at least as far back
as 1666, courts and commentators agreed “that the property
of all law books is in the king, because he pays the judges
who pronounce the law.” G. Curtis, Law of Copyright 130
(1847); see also Banks & Bros. v. West Publishing Co., 27 F.
50, 57 (CC Minn. 1886) (citing English cases and treatises and
concluding that “English courts generally sustain the crown's
proprietary rights in judicial opinions”). Blackstone de-
scribed this as a “prerogative copyrigh[t],” explaining that
“[t]he king, as the executive magistrate, has the right of pro-
mulging to the people all acts of state and government.
This gives him the exclusive privilege of printing, at his own
press, or that of his grantees, all acts of parliament, procla-
mations, and orders of council.” 2 W. Blackstone, Commen-
taries on the Laws of England 410 (1766) (emphasis deleted);
see also Wheaton, 8 Pet., at 659–660. This history helps to
explain the dearth of cases permitting individuals to obtain
copyrights in judicial opinions. But under the Constitution,
sovereignty lies with the people, not a king. See The Feder-
alist No. 22, p. 152 (C. Rossiter ed. 1961); id., No. 39, at 241.
The English historical practice, when superimposed on the
Constitution's recognition that sovereignty resides in the
people, helps to explain the Court's conclusion that the “au-
thentic exposition and interpretation of the law . . . is free
for publication to all.” Banks, 128 U. S., at 253.
Finally, concerns of fair notice, often recognized by this
Court's precedents as an important component of due proc-

282 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Thomas, J., dissenting
ess, also may have animated the reasoning of these 19th-
century
cases. As one court put it, “[t]he decisions and opin-
ions of the justices are the authorized expositions and
interpretations of the laws, which are binding upon all the
citizens. . . . Every citizen is presumed to know the law thus
declared, and it needs no argument to show that justice re-
quires that all should have free access to the opinions.”
Nash v. Lathrop, 142 Mass. 29, 35, 6 N. E. 559, 560 (1886)
(cited in Banks, 128 U. S., at 253–254); see also American
Soc. for Testing and Materials v. Public.Resource.Org, Inc.,
896 F. 3d 437, 458–459 (CADC 2018) (Katsas, J., concurring).
B
Allowing annotations to be copyrighted does not run afoul
of any of these possible justifcations for the government
edicts doctrine. First, unlike judicial opinions and statutes,
these annotations do not even purport to embody the will of
the people because they are not law. The General Assembly
of Georgia has made abundantly clear through a variety of
provisions that the annotations do not create any binding
obligations. OCGA § 1–1–7 states that “[a]ll historical cita-
tions, title and chapter analyses, and notes set out in this
Code are given for the purpose of convenient reference and
do not constitute part of the law.” Section 1–1–1 further
provides that “[t]he statutory portion of the codifcation of
Georgia laws . . . is enacted and shall have the effect of stat-
utes enacted by the General Assembly of Georgia. The
statutory portion of such codifcation shall be merged with
annotations . . . and other materials . . . and shall be pub-
lished by authority of the state.” Thus, although the mate-
rials “merge” prior to publication in the “offcial” code, the
very provision calling for that merger makes clear that the
annotations serve as commentary, not law.
As additional evidence that the annotations do not repre-
sent the will of the people, the General Assembly does not

Cite
as: 590 U. S. 255 (2020)
283
Thomas, J., dissenting
enact statutory annotations under its legislative power. See
Ga.
Const., Art. III, § 1, ¶1 (vesting the legislative power in
the General Assembly). To enact state law, Georgia em-
ploys a process of bicameralism and presentment similar to
that embodied in the United States Constitution. See Ga.
Const., Art. III, § 5; Art. V, § 2, ¶4. The annotations do not
go through this process, a fact that even the majority must
acknowledge. Ante, at 268; Ga. S. 52, Reg. Sess., § 54(b)
(2019–2020) (“Annotations . . . except as otherwise provided
in the Code . . . are not enacted as statutes by the provisions
of this Act”).
Second, unlike judges and legislators, the creators of anno-
tations are incentivized by the copyright laws to produce a
desirable product that will eventually earn them a proft.
And though the Commission may require Lexis to follow
strict guidelines, the independent synthesis, analysis, and
creative drafting behind the annotations makes them analo-
gous to other copyrightable materials. See Brief for Mat-
thew Bender & Co., Inc., as Amicus Curiae 4–7.
Lastly, the annotations do not impede fair notice of the
laws. As just stated, the annotations do not carry the bind-
ing force of law. They simply summar ize i ndependent
sources of legal information and consolidate them in one
place. Thus, OCGA annotations serve a similar function to
other copyrighted research tools provided by private parties
such as the American Law Reports and Westlaw, which also
contain information of great “practical signifcance.” Ante,
at 274. Compare, e. g., OCGA § 34–9–260 (annotation for
Cho Carwash Property, L. L. C. v. Everett, 326 Ga. App. 6,
755 S. E. 2d 823 (2014)) with Ga. Code Ann. § 34–9–260
(Westlaw's annotation for the same).
The majority resists this conclusion, suggesting that with-
out access to the annotations, readers of Georgia law will
be unable to fully understand the true meaning of Georgia's
statutory provisions, such as provisions that have been un-

284 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Thomas, J., dissenting
dermined or nullifed by court decisions. Ante, at 274–275.
That
is simply incorrect. As the majority tacitly concedes,
a person seeking information about changes in Georgia stat-
utory law can fnd that information by consulting the original
source for the change in the law's status—the court decisions
themselves. See ibid. The inability to access the OCGA
merely deprives a researcher of one specifc tool, not to the
underlying factual or legal information summarized in that
tool. See also post, at 295 (Ginsburg, J., dissenting).
2
C
The text of the Copyright Act supports my reading of the
precedents.
3
Specifcally, there are four indications in the
2
The majority contends that, rather than seeking to understand the ori-
gins of our precedents, we should simply accept the text of the opinions
that the Justices “voted on and committed to writing.” Ante, at 274, n. 4.
But that begs the question: What does the text of the relevant opinions
tell us? The answer is not much. It is precisely this lack of explication
that makes it necessary to explore the “judicial consensus” and public
policy referred to in Banks v. Manchester, 128 U. S. 244, 253 (1888). In-
stead, the majority attempts to dissect the language of our prior opinions
in the same way it would interpret a statute, an approach we have repeat-
edly cautioned against. See St. Mary's Honor Center v. Hicks, 509 U. S.
502, 515 (1993); Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979). The
proper approach is to “read general language in judicial opinions . . . as
referring in context to circumstances similar to the circumstances then
before the Court and not referring to quite different circumstances that
the Court was not then considering.” Illinois v. Lidster, 540 U. S. 419,
424 (2004); see also Cohens v. Virginia, 6 Wheat. 264, 399 (1821) (Marshall,
C. J., for the Court) (“[G]eneral expressions, in every opinion, are to be
taken in connection with the case in which those expressions are used. If
they go beyond the case, they may be respected, but ought not to control
the judgment in a subsequent suit when the very point is presented for
decision”).
3
As the majority explains, ante, at 267, the annotations were created as
part of a work-for-hire agreement between the Commission and Lexis.
See 17 U. S. C. § 201(b). Because no party disputes the validity of the
contract, I express no opinion regarding whether the contract established
an employer/employee relationship or whether the Commission may be
considered a “person” under § 201(b).

Cite
as: 590 U. S. 255 (2020)
285
Thomas, J., dissenting
text of the Copyright Act that the OCGA annotations are
copyr
ightable. As an initial matter, the Act does not defne
the word “author,” 17 U. S. C. § 101, or make any reference
to the government edicts doctrine. Accordingly, the term
“author” itself does not shed any light on whether the doc-
trine covers statutory annotations. Second, while the Act
excludes from copyright protection “work[s] prepared by an
offcer or employee of the United States Government as part
of that person's offcial duties,” § 101; see also § 105, the Act
contains no similar prohibition against works of state gov-
ernments or works prepared at their behest. “Congress'
use of explicit language in one provision cautions against in-
ferring the same limitation” elsewhere in the statute. State
Farm Fire & Casualty Co. v. United States ex rel. Rigsby,
580 U. S. 26, 34 (2016) (internal quotation marks omitted);
Pacifc Operators Offshore, LLP v. Valladolid, 565 U. S. 207,
216 (2012). Third, the Act specifcally notes that annota-
tions are copyrightable derivative works. § 101. Here,
again, the Act does not expressly exclude from copyright
protection annotations created either by the State or at the
State's request. Fourth, the Act provides that an author
may hold a copyright in “material contributed” in a deriva-
tive work, “as distinguished from the preexisting material
employed in the work.” § 103(b); see also Feist Publica-
tions, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 359
(1991). These aspects of the statutory text, taken together,
further support the conclusion that the OCGA annotations
are copyrightable.
For all these reasons, I would conclude that, as with the
privately created annotations in Callaghan, Georgia's statu-
tory annotations at issue in this case are copyrightable.
III
The majority reads this Court's precedents differently. In
its view, the Court in Banks held that judges are not “au-
thors” within the scope of the Copyright Act for “whatever

286 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Thomas, J., dissenting
work they perform in their capacity as judges,” 128 U. S., at
253,
so the same must be true for legislators, see ante, at 266.
Accordingly, works created by legislators in their legislative
capacity are not “original works of authorship,” § 102, and
therefore cannot be copyrighted. This argument is fawed
in multiple respects.
A
Most notably, the majority's textual analysis hinges on ac-
cepting that its construction of “authorship,” i. e., all works
produced in a judge's or legislator's offcial capacity, was so
well established by our 19th-century precedents that Con-
gress incorporated it into the multiple revisions of the Copy-
right Act. See ante, at 270–271. Such confdence is ques-
tionable, to say the least.
The majority's understanding of the government edicts
doctrine seems to have been lost on dozens of States and
Territories, as well as the lower courts in this case. As al-
ready stated, the 25 jurisdictions with offcial annotated
codes apparently did not view this Court's precedents as es-
tablishing the “offcial duties” defnition of authorship. See
Brief for State of Arkansas et al. as Amici Curiae.
4
And if
4
According to one study published in 2000, approximately half of States
owned copyright in offcial state statutory compilations, court reports, or
administrative regulations. Dmitrieva, State Ownership of Copyrights in
Primary Law Materials, 23 Hastings Com. & Entertainment L. J. 81, 83,
97–105 (2000). The majority attempts to undermine this study by empha-
sizing that some of these States owned copyright in primary law materials.
Ante, at 271, n. 3. This misunderstands the point. I do not claim that
this evidence demonstrates that the States necessarily interpreted the
government edicts doctrine correctly. I merely point out that these di-
vergent practices seriously undercut the majority's claim that its interpre-
tation of “authorship” was well settled and universally understood. On
this score, the majority has no answer but to insinuate that the lawmakers
of over half the Nation's jurisdictions disregarded federal law and the Con-
stitution to pursue their own agendas in the face of supposedly clear
precedent.

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287
Thomas, J., dissenting
“our precedents answer the question” so clearly, ante, at 271,
one
wonders why the Eleventh Circuit reached its conclusion
in such a roundabout fashion. Rather than following the
majority's “straightforward” path, ante, at 263, the Eleventh
Circuit looked to the “zone of indeterminacy at the frontier
between edicts that carry the force of law and those that do
not” to determine whether the annotations were “suffciently
law-like” to be “constructively authored by the People.”
Code Revision Comm'n v. Public.Resource.Org, Inc., 906
F. 3d 1229, 1233, 1242, 1243 (2018). The District Court like-
wise does not appear to have viewed the question as well
settled. In a cursory analysis, it determined that the anno-
tations were copyrightable based on Callaghan. Code Revi-
sion Comm'n v. Public.Resource.Org, Inc., 244 F. Supp. 3d
1350, 1356 (ND Ga. 2017). It is risible to presume that Con-
gress had knowledge of and incorporated a “settled” meaning
that eluded a multitude of States and Territories, as well as
at least four Article III judges. Ante, at 270–271. Cf.
Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S. 334, 344–
345 (2019).
This presumption of congressional knowledge also pro-
vides the basis for the majority's conclusion that the annota-
tions are not “original works of authorship.” See ante, at
269–270 (discussing § 101). Stripped of the fction that this
Court's 19th-century precedents clearly demonstrated that
“authorship” encompassed all works performed as part of a
legislator's duties, the majority's textual argument fails.
The majority does not confront this criticism head on. In-
stead, it simply repeats, without any further elaboration, its
unsupported conclusion that “[t]he Court long ago inter-
preted the word `author' to exclude offcials empowered to
speak with the force of law, and Congress has carried that
meaning forward in multiple iterations of the Copyright
Act.” Ante, at 274. This wave of the “magic wand of ipse
dixit” does nothing to strengthen the majority's argument,

288 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Thomas, J., dissenting
and in fact only serves to underscore its weakness. United
Sta
tes v. Yermian, 468 U. S. 63, 77 (1984) (Rehnquist, J.,
dissenting).
5
B
In addition to its textual defciencies, the majority's under-
standing of this Court's precedents fails to account for the
critical differences between the role that judicial opinions
play in expounding upon the law compared to that of stat-
utes. The majority fnds it meaningful, for instance, that
Banks prohibited dissents and concurrences from being
copyrighted, even though they carry no legal force. Ante,
at 273. At an elementary level, it is true that the judgment
is the only part of a judicial decision that has legal effect.
But it blinks reality to ignore that every word of a judicial
opinion—whether it is a majority, a concurrence, or a dis-
sent—expounds upon the law in ways that do not map neatly
on to the legislative function. Setting aside summary deci-
sions, the reader of a judicial opinion will always gain critical
insight into the reasoning underlying a judicial holding by
reading all opinions in their entirety. Understanding the
reasoning that animates the rule in turn provides pivotal in-
sight into how the law will likely be applied in future judicial
opinions.
6
Thus, deprived of access to judicial opinions, indi-
5
The majority's approach is also hard to reconcile with the recognition
in Wheaton v. Peters, 8 Pet. 591 (1834), that annotations prepared by the
Reporter of Decisions could be copyrighted. Wheaton was paid a salary
of $1,000, and it is diffcult to say whether this salary funded his work
on the opinions or his work on the annotations. See id., at 614, 617
(argument).
6
For instance, this Court has not overruled Lemon v. Kurtzman, 403
U. S. 602 (1971), which pronounced a test for evaluating Establishment
Clause claims. But a reader would do well to carefully scrutinize the
various opinions in American Legion v. American Humanist Assn., 588
U. S. 29 (2019), to understand the markedly different way that this prece-
dent functions in our current jurisprudence compared to when it was frst
decided. Moreover, sometimes a separate writing takes on canonical sta-
tus, like Justice Jackson's concurrence regarding the executive power in
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634–638 (1952)

Cite
as: 590 U. S. 255 (2020)
289
Thomas, J., dissenting
viduals cannot access the primary, and therefore best, source
of
information for the meaning of the law.
7
And as true as
that is today, access to these opinions was even more essen-
tial in the 19th century before the proliferation of federal
(opinion concurring in judgment and opinion of the Court); see also Katz
v. United States, 389 U. S. 347, 360–361 (1967) (Harlan, J., concurring) (rea-
sonable expectation of privacy Fourth Amendment test). Still other
times, the reasoning in an opinion for less than a majority of the Court
provides the explicit basis for a later majority's holding. See, e. g., Mc-
Kinney v. Arizona, 589 U. S. 139, 145 (2020) (discussing Ring v. Arizona,
536 U. S. 584, 612 (2002) (Scalia, J., concurring)); Estelle v. Gamble, 429
U. S. 97, 102 (1976) (incorporating into the majority the Eighth Amend-
ment “ `evolving standards of decency' ” test frst announced in Trop v.
Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). Even “ `comments in
[a] dissenting opinion,' ” ante, at 273, sometimes reemerge as the founda-
tional reasoning in a majority opinion. See, e. g., Franchise Tax Bd. of
Cal. v. Hyatt, 587 U. S. 230, 237 (2019) (discussing Nevada v. Hall, 440
U. S. 410, 433–439 (1979) (Rehnquist, J., dissenting)); Lawrence v. Texas,
539 U. S. 558, 578 (2003) (“Justice Stevens’ [dissenting] analysis, in our
view, should have been controlling in Bowers [v. Hardwick, 478 U. S. 186
(1986),] and should control here”). These examples, and myriad more,
demonstrate that the majority treats the role of separate judicial opinions
in an overly simplistic fashion.
7
Banks also stated that judicially prepared syllabi and headnotes cannot
be copyrighted. 128 U. S., at 253. The majority cites these materials as
further evidence of its broad rule, because the majority fnds it beyond
cavil that “these supplementary materials do not have the force of law.”
Ante, at 273. The majority feels it appropriate to assume—without any
historical inquiry—that the words “syllabus” and “headnote” carried the
same meaning, or served the same function, in 1888 as they do now.
Without briefng on this issue, I am not willing to make that leap. See
Hixson v. Burson, 54 Ohio St. 470, 485, 43 N. E. 1000, 1003 (1896) (“reluc-
tantly overrul[ing] the second syllabus” of a previous decision); Holliday
v. Brown, 34 Neb. 232, 234, 51 N. W. 839, 840 (1892) (“It is an unwritten
rule of this court that members thereof are bound only by the points as
stated in the syllabus of each case”); see also Frazier v. State, 15 Ga. App.
365, 365–367, 83 S. E. 273, 273–274 (1914) (clarifying the meaning of a
court-written headnote and emphasizing that to understand an opinion's
meaning, the headnote and opinion must be read together); United States
v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 (1906) (acknowledging
that some state statutes rendered headnotes the work of the court carry-
ing legal force).

290 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Thomas, J., dissenting
and state regulatory law fundamentally altered the role that
common-law
judging played in expounding upon the law.
See also post, at 293 (Ginsburg, J., dissenting).
These differences provide crucial context for Banks' rea-
soning. Specifcally, to ensure that judicial “exposition and
interpretation of the law” remains “free for publication to
all,” the word “author” must be read to encompass all judi-
cial duties. Banks, 128 U. S., at 253. But these differences
also demonstrate that the same rule does not a fortiori apply
to all legislative duties.
8
C
In addition to being fawed as a textual and precedential
matter, the majority's rule will prove diffcult to administer.
According to one group of amici, nearly all jurisdictions with
annotated codes use private contractors that “almost invaria-
bly prepare [annotations] under the supervision of legislative-
branch or judicial-branch offcials, including state legislators
or state-court judges.” Brief for State of Arkansas et al. as
Amici Curiae 16–17. Under the majority's view, any one of
these commissions or counsels could potentially be reclassi-
fed as an “adjunct to the legislature.” Ante, at 269. But
the majority's test for ascertaining the true nature of these
commissions raises far more questions than it answers.
8
Although legislative history is not at issue in this case, the majority
also contends that its rule is necessary to fend off the possibility that “[a]
State could monetize its entire suite of legislative history.” Ante, at 275.
Putting aside the jurisprudential debate over the use of such materials
in interpreting federal statutes, many States can, and have, specifcally
authorized courts to consider legislative history when construing statutes.
See, e. g., Colo. Rev. Stat. § 2–4–203(1)(c) (2019); Iowa Code § 4.6(3) (2019);
Minn. Stat. § 645.16(7) (2018); N. M. Stat. Ann. § 12–2A–20(C)(2) (2019);
N. D. Cent. Code Ann. § 1–02–39(3) (2019); Ohio Rev. Code Ann. § 1.49(C)
(Lexis Supp. 2019); 1 Pa. Cons. Stat. § 1921(c)(7) (2016). Given the direct
role that legislative history plays in the construction of statutes in these
States, it is hardly clear that such States could subject their legislative
histories to copyright.

Cite
as: 590 U. S. 255 (2020)
291
Thomas, J., dissenting
The majority lists a number of factors—including the Com-
missi
on's membership and funding, how the annotations be-
come part of the OCGA, and descriptions of the Commission
from court cases—to support its conclusion that the Commis-
sion is really part of the legislature. See ante, at 267–268.
But it does not specify whether these factors are exhaustive
or illustrative and, if the latter, what other factors may be
important. The majority also does not specify whether
some factors weigh more heavily than others when deciding
whether to deem an oversight body a legislative adjunct.
And even when the majority does list concrete factors, piv-
otal guidance remains lacking. For example, the majority
fnds it meaningful that 9 out of the Commission's 15 mem-
bers are legislators. Ante, at 267; see OCGA § 28–9–2 (not-
ing that the other members of the Commission include the
State's Lieutenant Governor, a judge, a district attorney, and
three other state bar members). But how many legislative
members are needed for a commission to become a legislative
adjunct? The majority provides no answers to any of
these questions.
***
The majority's rule will leave in the lurch the many States,
private parties, and legal researchers who relied on the pre-
viously bright-line rule. Perhaps, to the detriment of all,
many States will stop producing annotated codes altogether.
Were that to occur, the majority's fear of an “economy-class”
version of the law will truly become a reality. See ante, at
274. As Georgia explains, its contract enables the OCGA to
be sold at a fraction of the cost of competing annotated codes.
For example, Georgia asserts that Lexis sold the OCGA for
$404 in 2016, while West Publishing 's competing annotated
code sold for $2,570. Should state annotated codes disap-
pear, those without the means to pay the competitor's sig-
nifcantly higher price tag will have a valuable research tool
taken away from them. Meanwhile, this Court, which is
privileged to have access to numerous research resources,

292 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Ginsburg, J., dissenting
will scarcely notice. These negative practical ramifcations
are
unfortunate enough when they refect the deliberative
legislative choices that we as judges are bound to respect.
They are all the more regrettable when they are the result
of our own meddling. Fortunately, as the majority and I
agree, “ `critics of [today's] ruling can take their objections
across the street, [where] Congress can correct any mistake
it sees.' ” Ante, at 270–271 (quoting Kimble v. Marvel En-
tertainment, LLC, 576 U. S. 446, 456 (2015)).
We have “stressed . . . that it is generally for Congress,
not the courts, to decide how best to pursue the Copyright
Clause's objectives,” Eldred v. Ashcroft, 537 U. S. 186, 212
(2003), because “it is Congress that has been assigned the
task of defning the scope of the limited monopoly that should
be granted to authors,” Sony Corp. of America v. Universal
City Studios, Inc., 464 U. S. 417, 429 (1984). Because the
majority has strayed from its proper role, I respectfully
dissent.
Justice Ginsburg, with whom Justice Breyer joins,
dissenting.
Beyond doubt, state laws are not copyrightable. Nor are
other materials created by state legislators in the course of
performing their lawmaking responsibilities, e. g., legislative
committee reports, foor statements, unenacted bills. Ante,
at 266. Not all that legislators do, however, is ineligible for
copyright protection; the government edicts doctrine shields
only “works that are (1) created by judges and legislators
(2) in the course of their judicial and legislative duties.”
Ibid. (emphasis added). The core question this case pre-
sents, as I see it: Are the annotations in the Offcial Code of
Georgia Annotated (OCGA) done in a legislative capacity?
The answer, I am persuaded, should be no.
To explain why, I proceed from common ground. All
agree that headnotes and syllabi for judicial opinions—both
a kind of annotation—are copyrightable when created by a

Cite
as: 590 U. S. 255 (2020)
293
Ginsburg, J., dissenting
reporter of decisions, Callaghan v. Myers, 128 U. S. 617, 645–
650
(1888), but are not copyrightable when created by
judges, Banks v. Manchester, 128 U. S. 244, 253 (1888). That
is so because “[t]he whole work done by . . . judges,” ibid.,
including dissenting and concurring opinions, ranks as work
performed in their judicial capacity. Judges do not out-
source their writings to “arm[s]” or “adjunct[s],” cf. ante, at
259, 269, to be composed in their stead. Accordingly, the
judicial opinion-drafting process in its entirety—including
the drafting of headnotes and syllabi, in jurisdictions where
that is done by judges—falls outside the reach of copyright
protection.
One might ask: If a judge's annotations are not copyright-
able, why are those created by legislators? The answer lies
in the difference between the role of a judge and the role
of a legislator. “[T]o the judiciary” we assign “the duty of
interpreting and applying ” the law, Massachusetts v. Mel-
lon, 262 U. S. 447, 488 (1923), and sometimes making the ap-
plicable law, see Friendly, In Praise of Erie—and of the New
Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). See
also Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is
emphatically the province and duty of the judicial depart-
ment to say what the law is.”). In contrast, the role of the
legislature encompasses the process of “making laws”—not
construing statutes af ter their enactment. Mellon, 262
U. S., at 488; see Patchak v. Zinke, 583 U. S. 244, 250 (2018)
(plurality opinion) (“[T]he legislative power is the power to
make law.”). The OCGA annotations, in my appraisal, do
not rank as part of the Georgia Legislature's lawmaking
process for three reasons.
First, the annotations are not created contemporaneously
with the statutes to which they pertain; instead, the annota-
tions comment on statutes already enacted. See, e. g., App.
268–269 (text of enacted laws are transmitted to the pub-
lisher for the addition of commentary); id., at 403–404 (pub-
lisher adds new case notes on a rolling basis as courts con-

294 GEORGIA
v. PUBLIC.RESOURCE.ORG, INC.
Ginsburg, J., dissenting
strue existing statutes).
1
In
short, annotating begins only
after lawmaking ends. This sets the OCGA annotations
apart from uncopyrightable legislative materials like com-
mittee reports, generated before a law's enactment, and tied
tightly to the task of law-formulation.
Second, the OCGA annotations are descriptive rather than
prescriptive. Instead of stating the legislature's perception
of what a law conveys, the annotations summarize writings
in which others express their views on a given statute. For
example, the OCGA contains “case annotations” for “[a]ll de-
cisions of the Supreme Court of Georgia and the Court of
Appeals of Georgia and all decisions of the federal courts in
cases which arose in Georgia construing any portion of the
general statutory law of the state.” Id., at 403. Per the
Code Revision Commission's instructions, each annotation
should “accurately refect the facts, holding, and statutory
construction” adopted by the court. Id., at 404. The anno-
tations are neutrally cast; they do not opine on whether the
summarized case was correctly decided. See, e. g., OCGA
§ 17–7–50 (2013) (case annotation summarizing facts and hold-
ings of nine cases construing right to grand jury hearing).
This characteristic of the annotations distinguishes them
from preenactment legislative materials that touch or con-
cern the correct interpretation of the legislature's work.
Third, and of prime importance, the OCGA annotations
are “given for the purpose of convenient reference” by the
public, § 1–1–7 (2019); they aim to inform the citizenry at
large, they do not address, particularly, those seated in legis-
lative chambers.
2
Annotations are thus unlike, for example,
1
For example, OCGA § 11–2A–213 was enacted, in its current form, in
1993. See 1993 Ga. Laws p. 633. The case notes contained in the OCGA
summarize judicial decisions construing the statute years later. See § 11–
2A–213 (2002) (citing Griffth v. Medical Rental Supply of Albany, Ga.,
Inc., 244 Ga. App. 120, 534 S. E. 2d 859 (2000); Bailey v. Tucker Equip.
Sales, Inc., 236 Ga. App. 289, 510 S. E. 2d 904 (1999)).
2
Suppose a committee of Georgia's legislature, to inform the public, in-
structs a staffer to write a guide titled “The Workways of the Georgia
Legislature.” The fnal text describing how the legislature operates is

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as: 590 U. S. 255 (2020)
295
Ginsburg, J., dissenting
surveys, work commissioned by a legislature to aid in deter-
mi
ning whether existing law should be amended.
The requirement that the statutory portions of the OCGA
“shall be merged with annotations,” § 1–1–1, does not render
the annotations anything other than explanatory, referential,
or commentarial material. See Harrison Co. v. Code Revi-
sion Comm'n, 244 Ga. 325, 331, 260 S. E. 2d 30, 35 (1979)
(observation by the Supreme Court of Georgia that “inclu-
sion of annotations in [the] `offcial Code' ” does not “give the
annotations any offcial weight”).
3
Annotations aid the legal
researcher, and that aid is enhanced when annotations are
printed beneath or alongside the relevant statutory text.
But the placement of annotations in the OCGA does not alter
their auxiliary, nonlegislative character.
***
Because summarizing judicial decisions and commentary
bearing on enacted statutes, in contrast to, for example,
drafting a committee report to accompany proposed legisla-
tion, is not done in a legislator's law-shaping capacity, I
would hold the OCGA annotations copyrightable and there-
fore reverse the judgment of the Court of Appeals for the
Eleventh Circuit.
circulated to members of the legislature and approved by a majority.
Contrary to the Court's decision, I take it that such a work, which entails
no lawmaking, would be copyrightable.
3
That the Georgia Supreme Court described the Commission's work as
“within the sphere of legislative authority” for state separation-of-powers
purposes, Harrison Co. v. Code Revision Comm'n, 244 Ga. 325, 330, 260
S. E. 2d 30, 34 (1979), does not resolve the federal Copyright Act question
before us. Cf. Yates v. United States, 574 U. S. 528, 537 (2015) (plural-
ity opinion) (“In law as in life, . . . the same words, placed in different
contexts, sometimes mean different things.”); Cook, “Substance” and “Pro-
cedure” in the Confict of Laws, 42 Yale L. J. 333, 337 (1933) (“The tend-
ency to assume that a word which appears in two or more legal rules,
and so in connection with more than one purpose, has and should have
precisely the same scope in all of them, runs all through legal discussions.
It has all the tenacity of original sin and must constantly be guarded
against.”).

296 OCTOBER
TERM, 2019
Syllabus
MAINE COMMUNITY HEALTH OPTIONS v. UNITED
ST
ATES
certiorari to the united states court of appeals for
the federal circuit
No. 18–1023. Argued December 10, 2019—Decided April 27, 2020*
The Patient Protection and Affordable Care Act established online ex-
changes where insurers could sell their healthcare plans. The now-
expired “Risk Corridors” program aimed to limit the plans' profts and
losses during the exchanges' frst three years (2014 through 2016). See
§ 1342, 124 Stat. 211. Section 1342 set out a formula for computing a
plan's gains or losses at the end of each year, providing that eligible
proftable plans “shall pay” the Secretary of the Department of Health
and Human Services (HHS), while the Secretary “shall pay” eligible
unproftable plans. The Act neither appropriated funds for these yearly
payments nor limited the amounts that the Government might pay.
Nor was the program required to be budget neutral. Each year, the
Government owed more money to unproftable insurers than proftable
insurers owed to the Government, resulting in a total defcit of more
than $12 billion. And at the end of each year, the appropriations bills
for the Centers for Medicare and Medicaid Services (CMS) included a
rider preventing CMS from using the funds for Risk Corridors pay-
ments. Petitioners—four health-insurance companies that claim losses
under the program—sued the Federal Government for damages in the
Court of Federal Claims. Invoking the Tucker Act, they alleged that
§ 1342 obligated the Government to pay the full amount of their losses
as calculated by the statutory formula and sought a money judgment
for the unpaid sums owed. Only one petitioner prevailed in the trial
courts, and the Federal Circuit ruled for the Government in each appeal,
holding that § 1342 had initially created a Government obligation to pay
the full amounts, but that the subsequent appropriations riders im-
pliedly “repealed or suspended” that obligation.
*Together with No. 18–1028, Moda Health Plan, Inc. v. United States
(see this Court's Rule 12.4) and Blue Cross and Blue Shield of North
Carolina v. United States (see this Court's Rule 12.4); and No. 18–1038,
Land of Lincoln Mutual Health Insurance Co. v. United States, also on
certiorari to the same court.

Cite
as: 590 U. S. 296 (2020)
297
Syllabus
Held:
1.
The Risk Corridors statute created a Government obligation to pay
insurers the full amount set out in § 1342's formula. Pp. 307–314.
(a) The Government may incur an obligation directly through statu-
tory language, without also providing details about how the obligation
must be satisfied. See Un i ted Sta tes v. L angst o n, 118 U. S. 389.
Pp. 307–310.
(b) Section 1342 imposed a legal duty of the United States that
could mature into a legal liability through the insurers' participation in
the exchanges. This conclusion fows from the express terms and con-
text of § 1342, which imposed an obligation by using the mandatory term
“shall.” The section's mandatory nature is underscored by the adjacent
provisions, wh ich differentiate between when the HHS Secretary
“shall” take certain actions and when she “may” exercise discretion.
See §§ 1341(b)(2), 1343(b). Section 1342 neither requires the Risk Cor-
ridors program to be budget neutral nor suggests that the Secretary's
payments to unproftable plans pivoted on proftable plans' payments to
the Secretary or that a partial payment would satisfy the Government's
whole obligation. It thus must be given its plain meaning: The Govern-
ment “shall pay” the sum prescribed by § 1342. Pp. 310–311.
(c) Contrary to the Government's contention, neither the Appropri-
ations Clause nor the Anti-Defciency Act addresses whether Congress
itself can create or incur an obligation directly by statute. Nor does
§ 1342's obligation-creating language turn on whether Congress ex-
pressly provided budget authority before appropriating funds. The
Government's arguments also confict with well-settled principles of
statutory interpretation. That § 1342 contains no language limiting the
obligation to the availability of appropriations, while Congress expressly
used such limiting language in other Affordable Care Act provisions,
i ndicates that Congress i ntended a di fferent meani ng i n § 1342.
Pp. 311–314.
2. Congress did not impliedly repeal the obligation through its appro-
priations riders. Pp. 314–321.
(a) Because “ `repeals by implication are not favored,' ” Morton v.
Mancari, 417 U. S. 535, 549, this Court will regard each of two statutes
effective unless Congress' intention to repeal is “ `clear and manifest,' ”
or the laws are “irreconcilable,” id., at 550–551. In the appropriations
context, this requires the Government to show “something more than
the mere omission to appropriate a suffcient sum.” United States v.
Vulte, 233 U. S. 509, 515. As Langston and Vulte confrm, the appropri-
ations riders here did not manifestly repeal or discharge the Govern-
ment's uncapped obligation, see Langston, 118 U. S., at 394, and do not

298 MAINE
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v. UNITED STATES
Syllabus
indicate “any other purpose than the disbursement of a sum of money
for
the particular fscal years,” Vulte, 233 U. S., at 514. Nor is there
any indication that HHS and CMS thought that the riders clearly
expressed an intent to repeal. Pp. 315–317.
(b) Appropriations measures have been found irreconcilable with
statutory obligations to pay, but the riders here did not use the kind of
“shall not take effect” language decisive in United States v. Will, 449
U. S. 200, 222–223, or purport to “suspen[d]” § 1342 prospectively or to
foreclose funds from “any other Act” “notwithstanding ” § 1342's money-
mandating text, United States v. Dickerson, 310 U. S. 554, 556–557.
They also did not reference § 1342's payment formula, let alone “irrecon-
cilabl[y]” change it, United States v. Mitchell, 109 U. S. 146, 150, or pro-
vide that payments from proftable plans would be “ `in full compensa-
tion' ” of the Government's obligation to unproftable plans, United
States v. Fisher, 109 U. S. 143, 150. Pp. 317–319.
(c) The leg islative history cited by the Federa l Circuit is also
unpersuasive. Pp. 320–321.
3. Petitioners properly relied on the Tucker Act to sue for damages
in the Court of Federal Claims. Pp. 321–329.
(a) The United States has waived its immunity for certain damages
suits in the Court of Federal Claims through the Tucker Act. Because
that Act does not create “substantive rights,” United States v. Navajo
Nation, 556 U. S. 287, 290, a plaintiff must premise her damages action
on “other sources of law,” like “statutes or contracts,” ibid., provided
those statutes “ `can fairly be interpreted as mandating compensation
by the Federal Government for the damage sustained,' ” United States
v. White Mountain Apache Tribe, 537 U. S. 465, 472. The Act does,
however, yield when the obligation-creating statute provides its own
detailed remedies or when the Administrative Procedure Act provides
an avenue for relief. Pp. 322–324.
(b) Petitioners clear each hurdle: The Risk Corridors statute is
fairly interpreted as mandating compensation for damages, and neither
exception to the Tucker Act applies. Section 1342's mandatory “ `shall
pay' language” falls comfortably within the class of statutes that permit
recovery of money damages in the Court of Federal Claims. This fnd-
ing is bolstered by § 1342's focus on compensating insurers for past con-
duct. And there is no separate remedial scheme supplanting the Court
of Federal Claims' power to adjudicate petitioners' claims. See United
States v. Bormes, 568 U. S. 6, 12. Nor does the Administrative Proce-
dure Act bar petitioners' Tucker Act suit. In contrast to Bowen v.
Massachusetts, 487 U. S. 879, a Medicaid case where the State sued the
HHS Secretary under the Administrative Procedure Act in district
court, petitioners here seek not prospective, nonmonetary relief to clar-
ify future obligations but specifc sums already calculated, past due, and

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as: 590 U. S. 296 (2020)
299
Syllabus
designed to compensate for completed labors. The Risk Corridors stat-
ute
and Tucker Act allow them that remedy. And because the Risk
Corridors program expired years ago, this litigation presents no special
concern, as Bowen did, about managing a complex ongoing relationship
or tracking ever-changing accounting sheets. Pp. 324–327.
No. 18–1023 and No. 18–1028 (second judgment), 729 Fed. Appx. 939; No.
18–1028 (frst judgment), 892 F. 3d 1311; No. 18–1038, 892 F. 3d 1184,
reversed and remanded.
Sotomayor, J., delivered the opinion of the Court, in which Roberts,
C. J., and Ginsburg, Breyer, Kagan, and Kavanaugh, JJ., joined, and
in which Thomas and Gorsuch, JJ., joined as to all but Part III–C.
Alito, J., fled a dissenting opinion, post, p. 329.
Paul D. Clement argued the cause for petitioners in all
cases. With him on the briefs in No. 18–1028 were Erin
E. Murphy, C. Harker Rhodes IV, Kasdin M. Mitchell, and
Caroline Brown. On the briefs in No. 18–1023 were Ste-
phen J. McBrady, Clifton S. Elgarten, Daniel W. Wolff, and
A. Xavier Baker. On the briefs in No. 18–1038 were Jona-
than S. Massey, Marc Goldman, Daniel P. Albers, and Mark
E. Rust.
Deputy Solicitor General Kneedler argued the cause for
the United States. With him on the brief were Solicitor
General Francisco, Assistant Attorney General Hunt, Dep-
uty Assistant Attorney General Mooppan, Jonathan C.
Bond, Mark B. Stern, and Alisa B. Klein.†
†Briefs of amici curiae urging reversal in all cases were fled for 24
States et al. by Ellen F. Rosenblum, Attorney General of Oregon, Benja-
min Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney
General, and by the Attorneys General for their respective jurisdictions
as follows: Kevin G. Clarkson of Alaska, Xavier Becerra of California,
Philip J. Weiser of Colorado, William Tong of Connecticut, Kathleen Jen-
nings of Delaware, Karl A. Racine of the District of Columbia, Clare E.
Connors of Hawaii, Kwame Raoul of Illinois, Andy Beshear of Kentucky,
Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Maura Healey of
Massachusetts, Keith Ellison of Minnesota, Aaron D. Ford of Nevada,
Gurbir S. Grewal of New Jersey, Hector Balderas of New Mexico, Letitia
James of New York, Josh Stein of North Carolina, Josh Shapiro of Penn-
sylvania, Peter F. Neronha of Rhode Island, Thomas J. Donovan, Jr., of
Vermont, Mark R. Herring of Virginia, Robert W. Ferguson of Washing-

300 MAINE
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v. UNITED STATES
Opinion of the Court
Justice Sotomayor delivered the opinion of the Court.*
The
Patient Protection and Affordable Care Act expanded
healthcare coverage to many who did not have or could not
afford it. The Affordable Care Act did this by, among other
things, providing tax credits to help people buy insurance
and establishing online marketplaces where insurers could
sell plans. To encourage insurers to enter those market-
places, the Act created several programs to defray the carri-
ers' costs and cabin their risks.
Among these initiatives was the “Risk Corridors” pro-
gram, a temporary framework meant to compensate insurers
for unexpectedly unproftable plans during the marketplaces'
frst three years. The since-expired Risk Corridors statute,
§ 1342, set a formula for calculating payments under the pro-
gram: If an insurance plan loses a certain amount of money,
the Federal Government “shall pay” the plan; if the plan
makes a certain amount of money, the plan “shall pay” the
Government. See § 1342, 124 Stat. 211–212 (codifed at 42
U. S. C. § 18062). Some plans made money and paid the Gov-
ernment. Many suffered losses and sought reimbursement.
The Government, however, did not pay.
ton, and Bridget Hill of Wyoming; for America's Health Insurance Plans
by Pratik A. Shah, Hyland Hunt, and Ruthanne M. Deutsch; for the
Association for Community Affliated Plans by William L. Roberts, Jona-
than W. Dettmann, and Nicholas J. Nelson; for the Blue Cross Blue Shield
Association by K. Lee Blalack II, Jennifer Sokoler, and Shane A. Hunt;
for Economists by Stephen A. Swedlow and Andrew H. Schapiro; for High-
mark Inc. et al. by Colin E. Wrabley and Lawrence S. Sher; for the Na-
tional Association of Insurance Commissioners by Derek T. Teeter, Doug-
las J. Schmidt, Michael T. Raupp, and Gail Sciacchetano; for Wisconsin
Physicians Service Insurance Corp. et al. by Frank A. Gumina; and in No.
18–1028 for the Chamber of Commerce of the United States of America
by Paul J. Zidlicky, Jacqueline G. Cooper, and C. Frederick Beckner III.
Eric R. Bolinder and R. James Valvo III fled a brief for Americans for
Prosperity as amicus curiae urging affrmance in all cases.
*Justice Thomas and Justice Gorsuch join all but Part III–C of
this opinion.

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301
Opinion of the Court
These cases are about whether petitioners—insurers who
clai
m losses under the Risk Corridors program—have a right
to payment under § 1342 and a damages remedy for the
unpaid amounts. We hold that they do. We conclude that
§ 1342 of the Affordable Care Act established a money-
mandating obligation, that Congress did not repeal this obli-
gation, and that petitioners may sue the Government for
damages in the Court of Federal Claims.
I
A
In 2010, Congress passed the Patient Protection and Af-
fordable Care Act, 124 Stat. 119, seeking to improve national
health-insurance markets and extend coverage to millions of
people without adequate (or any) health insurance. To that
end, the Affordable Care Act called for the creation of virtual
health-insurance markets, or “Health Beneft Exchanges,” in
each State. 42 U. S. C. § 18031(b)(1). Individuals may buy
health-insurance plans directly on an exchange and, depend-
ing on their household income, receive tax credits for doing
so. 26 U. S. C. § 36B; 42 U. S. C. §§ 18081, 18082. Once an
insurer puts a plan on an exchange, it must “accept every
employer and individual in the State that applies for such
coverage,” 42 U. S. C. § 300gg–1(a), and may not tether pre-
miums to a particular applicant's health, § 300gg(a). In
other words, the Act “ensure[s] that anyone can buy insur-
ance.” King v. Burwell, 576 U. S. 473, 493 (2015).
Insurance carriers had many reasons to participate in
these new exchanges. Through the Affordable Care Act,
they gained access to millions of new customers with tax
credits worth “billions of dollars in spending each year.”
Id., at 485. But the exchanges posed some business risks,
too—including a lack of “reliable data to estimate the cost of
providing care for the expanded pool of individuals seeking
coverage.” 892 F. 3d 1311, 1314 (CA Fed. 2018) (case below
in No. 18–1028).

302 MAINE
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Opinion of the Court
This uncertainty could have given carriers pause and af-
fec
ted the rates they set. So the Affordable Care Act cre-
ated several risk-mitigation programs. At issue here is the
Risk Corridors program.
1
B
The Risk Corridors program aimed to limit participating
plans' profts and losses for the exchanges' frst three years
(2014, 2015, and 2016). See § 1342, 124 Stat. 211, 42 U. S. C.
§ 18062. It did so through a formula that computed a plan's
gains or losses at the end of each year. Plans with profts
above a certain threshold would pay the Government, while
plans with losses below that threshold would receive pay-
ments from the Government. § 1342(b), 124 Stat. 211–212.
Specifcally, § 1342 stated that the eligible proftable plans
“shall pay” the Secretary of the Department of Health and
Human Services (HHS), while the Secretary “shall pay” the
eligible unproftable plans. Ibid.
2
When it enacted the Affordable Care Act in 2010, Con-
gress did not simultaneously appropriate funds for the yearly
payments the Secretary could potentially owe under the
Risk Corridors program. Neither did Congress limit the
1
The others were the “Reinsurance” and “Risk Adjustment” programs.
The former ran from 2014 to 2016 and required insurers to pay premiums
into a pool that compensated carriers covering “high risk individuals.”
§ 1341, 124 Stat. 208, 42 U. S. C. § 18061. The latter is still in effect and
annually transfers funds from insurance plans with relatively low-risk en-
rollees to plans with higher risk enrollees. See § 1343, 124 Stat. 212, 42
U. S. C. § 18063.
2
If a health-insurance plan made (or lost) up to 3 percentage points more
than expected in a plan year, the plan would keep the gains (or losses).
If the plan made (or lost) between 3 and 8 percentage points more than
predicted, it would give up half of the earnings (or would be compensated
for half of the shortfalls) exceeding the 3 percentage-point threshold. If
the gains (or losses) exceeded predictions by 8 percentage points, the
insurers would pay (or receive) 80 percent of the gains (or losses) exceed-
ing the 8 percentage-point mark. See § 1342(b), 124 Stat. 211–212, 42
U. S. C. § 18062(b).

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303
Opinion of the Court
amounts that the Government might pay under § 1342. Nor
did
the Congressional Budget Offce (CBO) “score”—that
is, calculate the budgetary impact of—the Risk Corridors
program.
In later years, the CBO noted that the Risk Corridors
statute did not require the program to be budget neutral.
The CBO reported that, “[i]n contrast” to the Act's other
risk-mitigation programs, “risk corridor collections (which
will be recorded as revenues) will not necessarily equal risk
corridor payments, so that program can have net effects on
the budget defcit.” CBO, The Budget and Economic Out-
look: 2014 to 2024, p. 59 (2014). The CBO thus recognized
that “[i]f insurers' costs exceed their expectations, on aver-
age, the risk corridor program will impose costs on the fed-
eral budget.” Id., at 110.
Like the CBO, the federal agencies charged with imple-
menting the program agreed that § 1342 did not require
budget neutra l ity. Ni ne months before the program
started, HHS acknowledged that the Risk Corridors pro-
gram was “not statutorily required to be budget neutral.”
78 Fed. Reg. 15473 (2013). HHS assured, however, that
“[r]egardless of the balance of payments and receipts, HHS
will remit payments as required under section 1342 of the
Affordable Care Act.” Ibid.
Similar guidance came from the Centers for Medicare and
Medicaid Services (CMS), the agency tasked with helping the
HHS Secretary collect and remit program payments. CMS
confrmed that a lack of payments from proftable plans
would not relieve the Government from making its payments
to the unproftable ones. See 79 Fed. Reg. 30260 (2014).
Citing “concerns that risk corridors collections may not be
suffcient to fully fund risk corridors payments” to the
unproftable plans, CMS declared that “[i]n the unlikely
event of a shortfall . . . HHS recognizes that the Affordable
Care Act requires the Secretary to make full payments to
issuers.” Ibid.

304 MAINE
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Opinion of the Court
C
The
program's frst year, 2014, tallied a defcit of about $2.5
billion. Proftable plans owed the Government $362 million,
while the Government owed unproftable plans $2.87 billion.
See CMS, Risk Corridors Payment Proration Rate for 2014
(2015).
At the end of the frst year, Congress enacted a bill appro-
priating a lump sum for CMS' Program Management. See
Pub. L. 113–235, Div. G, Tit. II, 128 Stat. 2130–2131 (provid-
ing for the fscal year ending September 30, 2015). The bill
included a rider restricting the appropriation's effect on Risk
Corridors payments out to issuers:
“None of the funds made available by this Act . . . or
transferred from other accounts funded by this Act to
the `Centers for Medicare and Medicaid Services—Pro-
gram Management' account, may be used for payments
under section 1342(b)(1) of Public Law 111–148 (relating
to risk corridors).” § 227, id., at 2491.
The program's second year resembled its frst. In Febru-
ary 2015, HHS repeated its belief that “risk corridors collec-
tions w[ould] be suffcient to pay for all” of the Government's
“risk corridors payments.” 80 Fed. Reg. 10779 (2015). The
agency again “recognize[d] that the Affordable Care Act re-
quires the Secretary to make full payments to issuers.”
Ibid. “In the unlikely event that risk corridors collections”
were “insuffcient to make risk corridors payments,” HHS
reassured, the Government would “use other sources of fund-
ing for the risk corridors payments, subject to the availabil-
ity of appropriations.” Ibid.
The 2015 program year also ran a defcit, this time worth
about $5.5 billion. See CMS, Risk Corridors Payment and
Charge Amounts for the 2015 Beneft Year (2016). Facing
a second shortfall, CMS continued to “recogniz[e] that the
Affordable Care Act requires the Secretary to make full pay-

Cite
as: 590 U. S. 296 (2020)
305
Opinion of the Court
ments to issuers.” CMS, Risk Corridors Payments for 2015,
p
. 1 (2016). CMS also confrmed that “HHS w[ould] record
risk corridors payments due as an obligation of the United
States Government for which full payment is required.”
Ibid. And at the close of the second year, Congress enacted
another appropriations bill with the same rider as before.
See Pub. L. 114–113, § 225, 129 Stat. 2624 (providing for the
fscal year ending September 30, 2016).
The program's fnal year, 2016, was similar. The Govern-
ment owed unproftable insurers about $3.95 billion more
than proftable insurers owed the Government. See CMS,
Risk Corridors Payment and Charge Amounts for the 2016
Beneft Year (2017). And Congress passed an appropria-
tions bill with the same rider. See Pub. L. 115–31, § 223,
131 Stat. 543 (providing for the fscal year ending Septem-
ber 30, 2017).
All told, the Risk Corridors program's defcit exceeded
$12 billion.
D
The dispute here is whether the Government must pay the
remaining defcit. Petitioners in these consolidated cases
are four health-insurance companies that participated in the
healthcare exchanges: Maine Community Health Options,
Blue Cross and Blue Shield of North Carolina, Land of Lin-
coln Mutual Health Insurance Company, and Moda Health
Plan, Inc. They assert that their plans were unproftable
during the Risk Corridors program's 3-year term and that,
under § 1342, the HHS Secretary still owes them hundreds
of millions of dollars.
These insurers sued the Federal Government for damages
in the United States Court of Federal Claims, invoking the
Tucker Act, 28 U. S. C. § 1491. They alleged that § 1342 of
the Affordable Care Act obligated the Government to pay
the full amount of their losses as calculated by the statutory
formula and sought a money judgment for the unpaid sums

306 MAINE
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v. UNITED STATES
Opinion of the Court
owed—a claim that, if successful, could be satisfed through
the
Judgment Fund.
3
These lawsuits saw mixed results in
the trial courts. Petitioner Moda prevailed; the others did
not.
4
A divided panel of the United States Court of Appeals for
the Federal Circuit ruled for the Government in each appeal.
See 892 F. 3d 1311; 892 F. 3d 1184 (2018); 729 Fed. Appx. 939
(2018). As relevant here, the Federal Circuit concluded that
§ 1342 had initially created a Government obligation to pay
the full amounts that petitioners sought under the statutory
formula. See 892 F. 3d, at 1320–1322. The court also rec-
ognized that “it has long been the law that the government
may incur a debt independent of an appropriation to satisfy
that debt, at least in certain circumstances.” Id., at 1321.
Even so, the court held that Congress' appropriations
riders impliedly “repealed or suspended” the Government's
obligation. Id., at 1322. Although the panel acknowledged
that “[r]epeals by implication are generally disfavored”—
especially when the “alleged repeal occurred in an appro-
priations bill”—it found that the riders here “adequately
expressed Congress's intent to suspend” the Government's
payments to unproftable plans “beyond the sum of pay-
3
For a meritorious claim brought within the Tucker Act's 6-year statute
of limitations, 28 U. S. C. § 2501, federal law generally requires that the
“fnal judgment rendered by the United States Court of Federal Claims
against the United States . . . be paid out of any general appropriation
therefor.” § 2517(a). The Judgment Fund is a permanent and indefnite
appropriation for “[n]ecessary amounts . . . to pay fnal judgments, awards,
compromise settlements, and interest and costs specifed in the judgments
or otherwise authorized by law when . . . payment is not otherwise pro-
vided for.” 31 U. S. C. § 1304(a)(1).
4
Compare 130 Fed. Cl. 436 (2017) (granting Moda Health Plan partial
summary judgment on its statutory and implied-in-fact-contract claims),
with 129 Fed. Cl. 81 (2016) (dismissing Land of Lincoln's statutory, con-
tract, and Takings Clause claims), 131 Fed. Cl. 457 (2017) (dismissing Blue
Cross and Blue Shield's statutory and contract claims), and 133 Fed. Cl. 1
(2017) (dismissing Maine Community Health's statutory claims).

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as: 590 U. S. 296 (2020)
307
Opinion of the Court
ments” it collected from proftable plans. Id., at 1322–1323,
1325.
J
udge Newman dissented, observing that the Government
had not identifed any “statement of abrogation or amend-
ment of the statute,” nor any “disclaimer” of the Govern-
ment's “statutory and contractual commitments.” Id., at
1335. The dissent also reasoned that precedent undermined
the court's conclusion and that the appropriations riders
could not apply retroactively because the Government had
used the Risk Corridors program to induce insurers to enter
the exchanges. Id., at 1336–1339. Emphasizing the impor-
tance of Government credibility in public-private enterprise,
the dissent warned that the majority's decision would “un-
dermin[e] the reliability of dealings with the government.”
Id., at 1340.
A majority of the Federal Circuit declined to revisit the
court's decision en banc, 908 F. 3d 738 (2018) (per curiam);
see also id., at 740 (Newman, J., dissenting); id., at 741 (Wal-
lach, J., dissenting), and we granted certiorari, 588 U. S. 905
(2019).
These cases present three questions: First, did § 1342 of
the Affordable Care Act obligate the Government to pay
participating insurers the full amount calculated by that
statute? Second, did the obligation survive Congress' ap-
propriations riders? And third, may petitioners sue the
Government under the Tucker Act to recover on that obliga-
tion? Because our answer to each is yes, we reverse.
II
The Risk Corridors statute created a Government obliga-
tion to pay insurers the full amount set out in § 1342's
formula.
A
An “obligation” is a “defnite commitment that creates a
legal liability of the government for the payment of goods
and services ordered or received, or a legal duty . . . that

308 MAINE
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v. UNITED STATES
Opinion of the Court
could mature into a legal liability by virtue of actions on the
par
t of the other party beyond the control of the United
States.” GAO, A Glossary of Terms Used in the Federal
Budget Process 70 (GAO–05–734SP, 2005). The Govern-
ment may incur an obligation by contract or by statute.
See ibid.
Incurring an obligation, of course, is different from paying
one. After all, the Constitution's Appropriations Clause
provides that “No Money shall be drawn from the Treasury,
but i n Consequence of Appropr iati ons made by Law. ”
Art. I, § 9, cl. 7; see also GAO, Principles of Federal Appro-
priations Law 2–3 (4th ed. 2016) (hereinafter GAO Redbook)
(“[T]he authority to incur obligations by itself is not suff-
cient to authorize payments from the Treasury”). Creating
and satisfying a Government obligation, therefore, typically
involves four steps: (1) Congress passes an organic statute
(like the Affordable Care Act) that creates a program,
agency, or function; (2) Congress passes an Act authorizing
appropriations; (3) Congress enacts the appropriation, grant-
ing “budget authority” to incur obligations and make pay-
ments, and designating the funds to be drawn; and (4) the
relevant Government entity begins incurring the obligation.
See id., at 2–56; see also Op. Comp. Gen., B–193573 (Dec.
19, 1979).
But Congress can deviate from this pattern. It may, for
instance, authorize agencies to enter into contracts and
“incur obligations in advance of appropriations.” GAO Red-
book 2–4. In that context, the contracts “constitute obliga-
tions binding on the United States,” such that a “failure or
refusal by Congress to make the necessary appropriation
would not defeat the obligation, and the party entitled to
payment would most likely be able to recover in a lawsuit.”
Id., at 2–5; see also, e. g., Cherokee Nation of Okla. v. Lea-
vitt, 543 U. S. 631, 636–638 (2005) (rejecting the Govern-
ment's argument that it is legally bound by its contractual
promise to pay “if, and only if, Congress appropriated suff-

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as: 590 U. S. 296 (2020)
309
Opinion of the Court
cient funds”); Salazar v. Ramah Navajo Chapter, 567 U. S.
182,
191 (2012) (“Although the agency itself cannot disburse
funds beyond those appropriated to it, the Government's
`valid obligations will remain enforceable in the courts' ”
(quoting 2 GAO Redbook 6–17 (2d ed. 1992)).
Congress can also create an obligation directly by statute,
without also providing details about how it must be satisfed.
Consider, for example, United States v. Langston, 118 U. S.
389 (1886). In that case, Congress had enacted a statute
fxing an offcial's annual salary at “$7,500 from the date of
the creation of his offce.” Id., at 394. Years later, how-
ever, Congress failed to appropriate enough funds to pay the
full amount, prompting the offcer to sue for the remainder.
Id., at 393. Understanding that Congress had created the
obligation by statute, this Court held that a subsequent fail-
ure to appropriate enough funds neither “abrogated [n]or
suspended” the Government's pre-existing commitment to
pay. Id., at 394. The Court thus affrmed judgment for the
offcer for the balance owed. Ibid.
5
The GAO shares this view. As the Redbook explains, if
Congress created an obligation by statute without detailing
how it will be paid, “an agency could presumably meet a
funding shortfall by such measures as making prorated pay-
ments.” GAO Redbook 2–36, n. 39. But “such actions
would be only temporary pending receipt of suffcient funds
to honor the underlying obligation” and “[t]he recipient
would remain legally entitled to the balance.” Ibid. Thus,
the GAO warns, although a “failure to appropriate” funds
5
The Government suggests that Langston is irrelevant because that
case predates the Judgment Fund, cf. n. 3, supra, meaning that the Court
“had no occasion” to determine whether the statute at issue “authorized a
money-damages remedy” against the Government, Brief for United States
30. But by affrming a judgment against the United States, Langston
necessarily confrmed the Government's obligation to pay independent of
a specifc appropriation. What remedies ensure that the Government
makes good on its duty to pay is a separate question that we take up
below. See Part IV, in fra.

310 MAINE
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Opinion of the Court
“will prevent administrative agencies from making pay-
ment,
” that failure “is unlikely to prevent recovery by way
of a lawsuit.” Id., at 2–63 (citing, e. g., Langston, 118 U. S.,
at 394).
Put succinctly, Congress can create an obligation directly
through statutory language.
B
Section 1342 imposed a legal duty of the United States
that could mature into a legal liability through the insurers'
ac ti ons—namely, their par ticipati ng i n the hea lthcare
exchanges.
This conclusion fows from § 1342's express terms and con-
text. See, e. g., Merit Management Group, LP v. FTI Con-
sulting, Inc., 583 U. S. 366, 378 (2018) (statutory interpreta-
tion “begins with the text”). The frst sign that the statute
imposed an obligation is its mandatory language: “shall.”
“Unlike the word `may,' which implies discretion, the word
`shall' usually connotes a requirement. ” Kingdomware
Technologies, Inc. v. United States, 579 U. S. 162, 171 (2016);
see also Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U. S. 26, 35 (1998) (observing that “ `shall' ” typi-
cally “creates an obligation impervious to . . . discretion”).
Section 1342 uses the command three times: The HHS Secre-
tary “shall establish and administer” the Risk Corridors pro-
gram from 2014 to 2016, “shall provide” for payments accord-
ing to a precise statutory formula, and “shall pay” insurers
for losses exceeding the statutory threshold. §§ 1342(a),
(b)(1), 114 Stat. 211, 42 U. S. C. §§ 18062(a), (b)(1).
Section 1342's adjacent provisions also underscore its man-
datory nature. In § 1341 (a reinsurance program) and § 1343
(a risk-adjustment program), the Affordable Care Act differ-
entiates between when the HHS Secretary “shall” take cer-
tain actions and when she “may” exercise discretion. See
§ 1341(b)(2), 124 Stat. 209, 42 U. S. C. § 18061(b)(2) (“[T]he
Secretary . . . shall include” a formula that “may be de-

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Opinion of the Court
signed” in multiple ways); § 1343(b), 124 Stat. 212, 42 U. S. C.
§
18063(b) (“The Secretary . . . shall establish” and “may uti-
lize” certain criteria). Yet Congress chose mandatory terms
for § 1342. “When,” as is the case here, Congress “distin-
guishes between `may' and `shall,' it is generally clear that
`shall' imposes a mandatory duty.” Kingdomware, 579 U. S.,
at 172.
Nothing in § 1342 requires the Risk Corridors program to
be budget neutral, either. Nor does the text suggest that
the Secretary's payments to unproftable plans pivoted on
proftable plans' payments to the Secretary, or that a partial
payment would satisfy the Government's whole obligation.
Thus, without “any indication” that § 1342 allows the Govern-
ment to lessen its obligation, we must “give effect to [Section
1342's] plain command.” Lexecon, 523 U. S., at 35. That is,
the statute meant what it said: The Government “shall pay”
the sum that § 1342 prescribes.
6
C
The Government does not contest that § 1342's plain terms
appeared to create an obligation to pay whatever amount
the statutory formula provides. It insists instead that the
Appropriations Clause, Art. I, § 9, cl. 7, and the Anti-
Defciency Act, 31 U. S. C. § 1341, “qualifed” that obligation
by making “HHS's payments contingent on appropriations
by Congress.” Brief for United States 20. “Because Con-
gress did not appropriate funds beyond the amounts col-
lected” from proftable plans, this argument goes, “HHS's
6
Our conclusion matches the interpretations that HHS and CMS have
repeated since before the Risk Corridors program began. In the agen-
cies' view, the Risk Corridors program was “not statutorily required to be
budget neutral” and instead required HHS to “remit payments” “[r]egard-
less of the balance of payments and receipts.” 78 Fed. Reg. 15473 (HHS
regulation); accord, 79 Fed. Reg. 30260 (CMS regulation noting that even
“[i]n the unlikely event of a shortfall for the 2015 program year, . . . the
Affordable Care Act requires the Secretary to make full payments to
issuers”).

312 MAINE
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Opinion of the Court
statutory duty [to pay unproftable plans] extended only to
disbursi
ng those collected amounts.” Id., at 24–25.
That does not follow. Neither the Appropriations Clause
nor the Anti-Defciency Act addresses whether Congress it-
self can create or incur an obligation directly by statute.
Rather, both provisions constrain how federal employees and
offcers may make or authorize payments without appropria-
tions. See U. S. Const., Art. I, § 9, cl. 7 (requiring an “Ap-
propriatio[n] made by Law” before money may “be drawn”
to satisfy a payment obligation); 31 U. S. C. § 1341(a)(1)(A)
(“An offcer or employee of the United States Government
. . . may not . . . make or authorize an expenditure or obliga-
tion exceeding an amount available in an appropriation or
fund for the expenditure or obligation”). As we have ex-
plained, “ `[a]n appropriation per se merely imposes limita-
tions upon the Government's own agents,' ” but “ `its insuff-
ciency does not pay the Government's debts, nor cancel its
obligations.' ” Ramah, 567 U. S., at 197 (quoting Ferris v.
United States, 27 Ct. Cl. 542, 546 (1892)). If anything, the
Anti-Defciency Act confrms that Congress can create obli-
gations without contemporaneous funding sources: That
Act's prohibitions give way “as specifed” or “authorized” by
“any other provision of law.” 31 U. S. C. § 1341(a)(1). Here,
the Government's obligation was authorized by the Risk
Corridors statute.
And contrary to the Gover nment's v iew, § 1342's
obligation-creating language does not turn on whether Con-
gress expressly provided “budget authority” before appro-
priating funds. Budget authority is an agency's power “pro-
vided by Federal law to incur fnancial obligations,” 88 Stat.
297, 2 U. S. C. § 622(2)(A), “that will result in immediate or
future outlays of government funds,” GAO Redbook 2–1; see
also id., at 2–55 (“Agencies may incur obligations only after
Congress grants budget authority”); GAO, A Glossary of
Terms Used in the Federal Budget Process, at 20–21. As
explained above, Congress usually gives budget authority

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313
Opinion of the Court
through an appropriations Act or by expressly granting an
agency
authority to contract for the Government. See GAO
Redbook 2–1 to 2–5. But budget authority is not necessary
for Congress itself to create an obligation by statute. See
Langston, 118 U. S., at 394; cf. Raines v. Byrd, 521 U. S. 811,
815 (1997) (treating legal obligations of the Government as
distinct from budget authority).
The Government's arguments also confict with well-settled
principles of statutory interpretation. At bottom, the Gov-
ernment contends that the existence and extent of its obliga-
tion here is “subject to the availability of appropriations.”
Brief for United States 41. But that language appears no-
where in § 1342, even though Congress could have expressly
limited an obligation to available appropriations or specifc
dollar amounts. Indeed, Congress did so explicitly in other
provisions of the Affordable Care Act.
7
7
See, e. g., 42 U. S. C. § 280k(a) (“The Secretary . . . shall, subject to the
availability of appropriations, establish a 5-year national, public education
campaign”); § 293k(c) (“Fifteen percent of the amount appropriated . . . in
each . . . fscal year shall be allocated to [certain] physician assistant train-
ing programs”); § 293k–1(e) (“There is authorized to be appropriated to
carry out this section, $10,000,000”); § 293k–2(e) (payments “made to an
entity from an award of a grant or contract under [§ 293k–2(a)] shall be
. . . subject to the availability of appropriations for the fscal year involved
to make the payments”); § 300hh–31(a) (“Subject to the availability of ap-
propriations, the Secretary . . . shall establish [an epidemiology-laboratory
program] to award grants”); note following § 1396a (“In no case may . . .
the aggregate amount of payments made by the Secretary to eligible
St ates under th is sec ti on exceed $75,000,000”); § 1397m–1( b)(2)(A)
(“Subject to the availability of appropriations . . . the amount paid to a
State for a fscal year under [an adult protective services program] shall
equal . . . ”).
This kind of limiting language is not unique to the Affordable Care Act.
When Congress has restricted “shall pay” language to an appropriation or
available funds, it has done so expressly. See, e. g., 2 U. S. C. § 2064; 5
U. S. C. § 8334; 7 U. S. C. §§ 2013, 2031, 3243, 6523, 7717; 10 U. S. C. §§ 1175,
1413a, 1598, 2031, 2410j, 2774, 9780; 12 U. S. C. § 3337; 15 U. S. C. § 4723; 16
U. S. C. §§ 45f, 410aa–1, 426n, 459e–1, 460m–16, 698f, 1852; 20 U. S. C.
§§ 80q–5, 1070a, 1134b, 1161g; 22 U. S. C. § 2906; 25 U. S. C. § 1912; 30

314 MAINE
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Opinion of the Court
This Court generally presumes that “ `when Congress in-
cludes
particular language in one section of a statute but
omits it in another,' ” Congress “ `intended a difference in
meaning.' ” Digital Realty Trust, Inc. v. Somers, 583 U. S.
149, 161 (2018) (quoting Loughrin v. United States, 573 U. S.
351, 358 (2014) (alterations omitted)). The Court likewise
hesitates “ `to adopt an interpretation of a congressional en-
actment which renders superfuous another portion of that
same law.' ” Republic of Sudan v. Harrison, 587 U. S.
1, 12 (2019) (quoti ng Mackey v. L an i e r Co ll ec t io n
Agency & Service, Inc., 486 U. S. 825, 837 (1988)). The “sub-
ject to appropriations” and payment-capping language in
other sections of the Affordable Care Act would be meaning-
less had § 1342 simultaneously achieved the same end with
silence.
In sum, the plain terms of the Risk Corridors provision
created an obligation neither contingent on nor limited by
the availability of appropriations or other funds.
III
The next question is whether Congress impliedly repealed
the obligation through its appropriations riders. It did not.
U. S. C. § 1314; 32 U. S. C. § 716; 34 U. S. C. § 12573; 38 U. S. C. § 5317A; 42
U. S. C. §§ 303, 624, 655, 677, 1203, 1353, 1396b, 8623, 12622, 16014, 16512;
46 U. S. C. §§ 51504, 53106, 53206; 47 U. S. C. § 395; 49 U. S. C. § 5312; 50
U. S. C. §§ 4236, 4237; 52 U. S. C. § 21061.
Congress has also been explicit when it has capped payments, often
setting a dollar amount or designating a specifc fund from which the Gov-
ernment shall pay. See, e. g., 5 U. S. C. §§ 8102a, 8134, 8461; 7 U. S. C.
§§ 26, 6523; 10 U. S. C. § 1413a; 16 U. S. C. §§ 450e–1, 460kk; 19 U. S. C.
§ 2296; 20 U. S. C. §§ 1070g–1, 1078, 3988, 5607; 22 U. S. C. § 3681; 30 U. S. C.
§ 1240a; 31 U. S. C. § 3343; 38 U. S. C. § 1542; 42 U. S. C. §§ 290bb–38, 295h,
618, 5318a, 15093; 43 U. S. C. §§ 1356a, 1619; 46 U. S. C. § 53106; 50
U. S. C. § 4114.
These common limitations—and our discussion below, see Part IV,
in fra—diminish the dissent's concern that other statutes may support a
damages action in the Court of Federal Claims. Post, at 331 (opinion of
Alito, J.).

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Opinion of the Court
A
Because
Congress did not expressly repeal § 1342, the Gov-
ernment seeks to show that Congress impliedly did so. But
“repeals by implication are not favored,” Morton v. Mancari,
417 U. S. 535, 549 (1974) (internal quotation marks omitted),
and are a “rarity,” J. E. M. Ag Supply, Inc. v. Pioneer Hi-
Bred Int'l, Inc., 534 U. S. 124, 142 (2001) (internal quotation
marks omitted). Presented with two statutes, the Court
will “regard each as effective”—unless Congress' intention
to repeal is “ ` “clear and manifest,” ' ” or the two laws are
“irreconcilable.” Morton, 417 U. S., at 550–551 (quoting
United States v. Borden Co., 308 U. S. 188, 198 (1939)); see
also FCC v. NextWave Personal Communications Inc., 537
U. S. 293, 304 (2003) (“[W]hen two statutes are capable of co-
existence, it is the duty of the courts, absent a clearly ex-
pressed congressional intention to the contrary, to regard
each as effective” (internal quotation marks omitted)).
This Court's aversion to implied repeals is “especially”
strong “ i n the appropr iati ons context. ” Robe r t so n v.
Seattle Audubon Soc., 503 U. S. 429, 440 (1992); see also
New York Airways, Inc. v. United States, 177 Ct. Cl. 800,
810, 369 F. 2d 743, 748 (1966). The Government must point
to “something more than the mere omission to appropriate a
suffcient sum.” United States v. Vulte, 233 U. S. 509, 515
(1914); accord, GAO Redbook 2–63 (“The mere failure to ap-
propriate suffcient funds is not enough”). The question,
then, is whether the appropriations riders manifestly re-
pealed or discharged the Government's uncapped obligation.
Langston confrms that the appropriations riders did nei-
ther. Recall that in Langston, Congress had established a
statutory obligation to pay a salary of $7,500, yet later appro-
priated a lesser amount. 118 U. S., at 393–394. This Court
held that Congress did not “abrogat[e] or suspen[d]” the
sa lary-fixing statute by “subsequent enactments [that]
merely appropriated a less amount” than necessary to pay,
because the appropriations bill lacked “words that expressly

316 MAINE
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Opinion of the Court
or by clear implication modifed or repealed the previous
law
.” Id., at 394.
Vulte reaffrmed that a mere failure to appropriate does
not repeal or discharge an obligation to pay. At issue there
was whether certain appropriations Acts had repealed a
Government obligation to pay bonuses to military service-
men. 233 U. S., at 511–512. A 1902 statute had provided a
10 percent bonus to offcers serving outside the contiguous
United States, but in 1906 and 1907, Congress enacted appro-
priations funding the bonuses for offcers “excep[t those in]
P[ue]rto Rico and Hawaii.” Id., at 512. Then, in 1908, Con-
gress enacted a statute stating “ `[t]hat the increase of pay
. . . shall be as now provided by law.' ” Id., at 513. When
Lieutenant Nelson Vulte sought a bonus for his service in
Puerto Rico from 1908 to 1909, the Government refused, con-
tending that the appropriations Acts had impliedly repealed
its obligation altogether.
Relying on Langston, Vulte rejected that argument. “[I]t
is to be remembered,” the Court wrote, that the alleged re-
peals “were in appropriation acts and no words were used to
indicate any other purpose than the disbursement of a sum
of money for the particular fscal years.” 233 U. S., at 514.
At most, the appropriations had “temporarily suspend[ed]”
payments, but they did not use “ `the most clear and posi-
tive terms' ” required to “modif[y] or repea[l]” the Govern-
ment's obligation itself. Id., at 514–515 (quoting Minis v.
United States, 15 Pet. 423, 445 (1841)). Because the Govern-
ment had failed to show that repeal was the only “ `reason-
able interpretation' ” of the appropriation Acts, the obliga-
tion persisted. 233 U. S., at 515 (quoting Minis, 15 Pet., at
445).
The parallels among Langston, Vulte, and these cases are
clear. Here, like in Langston and Vulte, Congress “merely
appropriated a less amount” than that required to satisfy the
Government's obligation, without “expressly or by clear im-
plication modif[ying]” it. Langston, 118 U. S., at 394; see

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Opinion of the Court
also Vulte, 233 U. S., at 515. The riders stated that “[n]one
of
the funds made available by this Act,” as opposed to any
other sources of funds, “may be used for payments under”
the Risk Corridors statute. § 227, 128 Stat. 2491; accord,
§ 225, 129 Stat. 2624; § 223, 131 Stat. 543. But “no words
were used to indicate any other purpose than the disburse-
ment of a sum of money for the particular fscal years.”
Vulte, 233 U. S., at 514. And especially because the Govern-
ment had already begun incurring the prior year's obligation
each time Congress enacted a rider, reasonable (and nonre-
pealing) interpretations exist. Indeed, fnding a repeal in
these circumstances would raise serious questions whether
the appropriations riders retroactively impaired insurers'
rights to payment. See Landgraf v. USI Film Products,
511 U. S. 244, 265–266, 280 (1994); see also GAO Redbook 1–
61 to 1–62.
The relevant agencies' responses to the riders also under-
mine the case for an implied repeal here. Had Congress
“clearly expressed” its intent to repeal, one might have ex-
pected HHS or CMS to signal the sea change. Morton, 417
U. S., at 551. But even after Congress enacted the frst
rider, the agencies reiterated that “the Affordable Care Act
requires the Secretary to make full payments to issuers,” 80
Fed. Reg. 10779, and that “HHS w[ould] record risk corridors
payments due as an obligation of the United States Govern-
ment for which full payment is required,” CMS, Risk Corri-
dors Payments for 2015, at 1. They understood that proft-
able insurers' payments to the Government would not dispel
the Secretary's obligation to pay unproftable insurers, even
“in the event of a shortfall.” Ibid.
Given the Court's potent presumption in the appropria-
tions context, an implied-repeal-by-rider must be made of
sterner stuff.
B
To be sure, this Court's implied-repeal precedents reveal
two situations where the Court has deemed appropriations

318 MAINE
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Opinion of the Court
measures irreconcilable with statutory obligations to pay.
But
neither one applies here.
The frst line of cases involved appropriations bills that,
without expressly invoking words of “repeal,” reached that
outcome by completely revoking or suspending the underly-
ing obligation before the Government began incurring it.
See United States v. Will, 449 U. S. 200 (1980); United States
v. Dickerson, 310 U. S. 554 (1940). Will concluded that Con-
gress had canceled an obligation to pay cost-of-living raises
through appropriations bills that bluntly stated that future
raises “ `shall not take effect' ” or that restricted funds from
“ `this Act or any other Act.' ” 449 U. S., at 206–207, 223.
8
Likewise, Dickerson held that a series of appropriations bills
repealed an obligation to pay military-reenlistment bonuses
due in particular fscal years. See 310 U. S., at 561. One
enactment “ `hereby suspended' ” the bonuses before they
took effect, and another “continued” this suspension for addi-
tional years, providing that “ `no part of any appropriation
contained in this or any other Act for the [next] fscal year
. . . shall be available for the payment [of the bonuses] not-
withstanding ' ” the statute creating the Government's obli-
gation to pay. Id., at 555–557.
Here, by contrast, the appropriations riders did not
use the kind of “shall not take effect” language decisive in
Will. See 449 U. S., at 222–223. Nor did the riders purport
to “suspen[d]” § 1342 prospectively or to foreclose funds
from “any other Act” “notwithstanding ” § 1342's money-
mandating text. Dickerson, 310 U. S., at 556–557; see also
Will, 449 U. S., at 206–207. Neither Will nor Dickerson
supports the Federal Circuit's implied-repeal holding.
The second strand of precedent turned on provisions that
reformed statutory payment formulas in ways “irrecon-
cilable” with the original methods. See United States v.
8
Still, Will held unconstitutional the changes that purported to reduce
the Government's payment obligations after the obligation-creating stat-
utes had already taken effect. See 449 U. S., at 224–226, 230.

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Opinion of the Court
Mitchell, 109 U. S. 146, 150 (1883); see also United States v.
Fish
er, 109 U. S. 143, 145–146 (1883). In Mitchell, an appro-
priations bill decreased the salaries for federal interpreters
(from $400 to $300) and changed how the agency would dis-
tribute any “ `additional pay' ” (from “ `all emoluments and
allowances whatsoever' ” to payments at the agency head's
discretion). 109 U. S., at 147, 149. And in Fisher, Congress
altered an obligation to pay judges $3,000 per year by pro-
viding that a lesser appropriation would be “ `in full compen-
sation' ” for services rendered in the next fscal year. 109
U. S., at 144.
9
The appropriations bills here created no such confict as in
Mitchell and Fisher. The riders did not reference § 1342's
payment formula at all, let alone “irreconcilabl[y]” change it.
Mitchell, 109 U. S., at 150. Nor did they provide that Risk
Corridors payments from proftable plans would be “ `in full
compensation' ” of the Government's obligation to unproft-
able plans. Fisher, 109 U. S., at 146. Instead, the riders
here must be taken at face value: as a “mere omission
to appropriate a suffcient sum.” Vulte, 233 U. S., at 515.
Congress could have used the kind of language we have held
to effect a repeal or suspension—indeed, it did so in other
provisions of the relevant appropriations bills. See, e. g.,
§ 716, 128 Stat. 2163 (“None of the funds appropriated or oth-
erwise made available by this or any other Act shall be
used . . . ”); § 714, 129 Stat. 2275 (same); § 714, 131 Stat. 168
(same). But for the Risk Corridors program, it did not.
9
The Federal Circuit has also recognized that Congress may override a
statutory payment formula through an appropriation that expressly ear-
marks a lesser amount for that payment obligation in the upcoming fscal
year. See Highland Falls-Fort Montgomery Central School Dist. v.
United States, 48 F. 3d 1166, 1169–1171 (1995); see also GAO Redbook 2–
62 (discussing Highland Falls and noting that earmarking a lesser amount
can create an “irreconcilable confict” with a statutory payment formula).
Perhaps because these cases do not involve an earmark to satisfy an in-
compatible payment formula, the Federal Circuit did not rely on Highland
Falls below.

320 MAINE
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Opinion of the Court
C
W
e also fnd unpersuasive the only pieces of legislative
history that the Federal Circuit cited. According to the
Court of Appeals, a foor statement and an unpublished GAO
letter provided “clear intent” to cancel or “suspend” the
Government's Risk Corridors obligation. See 892 F. 3d,
at 1318–1319, 1325–1326. We doubt that either source could
ever evince the kind of clear congressional intent required
to repeal a statutory obligation through an appropriations
rider. See United States v. Kwai Fun Wong, 575 U. S.
402, 412 (2015). But even if they could, they did not do so
here.
The foor statement (which Congress adopted as an “ex-
planatory statement”) does not cross the clear-expression
threshold. See 160 Cong. Rec. 17805, 18307 (2014); see also
§ 4, 128 Stat. 2132. That statement interpreted an HHS
regulation as saying that “the risk corridor program will be
budget neutral, meaning that the federal government will
never pay out more than it collects.” 160 Cong. Rec., at
18307.
10
But that misunderstands the referenced regula-
tion, which provided only that HHS “project[ed]” that the
program would be budget neutral and that the agency “in-
tend[ed]” to treat it that way, while making clear that “it [was]
diffcult to estimate” the “aggregate risk corridors payments
and charges at [the] time.” 79 Fed. Reg. 13829. HHS' goals
did not alter its prior interpretation that the Risk Corridors
program was “not statutorily required to be budget neutral.”
10
The statement provides in full:
“In 2014, HHS issued a regulation stating that the risk corridor program
will be budget neutral, meaning that the federal government will never
pay out more than it collects from issuers over the three year period risk
corridors are in effect. The agreement includes new bill language to pre-
vent the CMS Program Management appropriation account from being
used to support risk corridors payments.” 160 Cong. Rec., at 18307.

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Opinion of the Court
78 Fed. Reg. 15473. And neither the foor statement nor the
appropr
iations rider said anything requiring budget neutral-
ity or redefning § 1342's formula.
11
The GAO letter is even more inapt. In it, the GAO
responded to two legislators' inquiry by identifying two
sources of available funding for the frst year of Risk Corri-
dors payments: CMS' appropriations for the 2014 fscal year
and proftable insurance plans' payments to the Secretary.
892 F. 3d, at 1318; see also App. in No. 17–1994 (CA Fed.),
pp. 234–240. Because the rider cut off the frst source of
funds, the Federal Circuit inferred congressional intent “to
temporarily cap” the Government's payments “at the amount
of payments” proftable plans made “for each of the applica-
ble years” of the Risk Corridors program. 892 F. 3d, at
1325. That was error. The letter has little value because
it appears nowhere in the legislative record. Perhaps for
that reason, the Government does not rely on it.
IV
Having found that the Risk Corridors statute established
a valid yet unfulflled Government obligation, this Court
must turn to a fnal question: Where does petitioners' lawsuit
belong, and for what relief ? We hold that petitioners prop-
1 1
In th is i mplied-repea l context, it is a lso tel li ng that Congress
considered—but did not enact—bills containing the type of text that may
have satisfed the clear-expression rule. See, e. g., Obamacare Taxpayer
Bailout Protection Act, S. 2214, 113th Cong., 2d Sess., § 2 (2014) (“ `[T]he
Secretary shall ensure that payments out and payments in . . . are pro-
vided for in amounts that the Secretary determines are necessary to re-
duce to zero the cost . . . to the Federal Government of carrying out the
program under this section' ”); Taxpayer Bailout Protection Act, S. 359,
114th Cong., 1st Sess., § 2 (2015) (“ `The Secretary shall ensure that the
amount of payments to plans . . . does not exceed the amount of payments
to the Secretary' ” and “ `shall proportionately decrease the amount of pay-
ments to plans' ”); Taxpayer Bailout Protection Act, H. R. 724, 114th Cong.,
1st Sess., § 2 (2015) (same).

322 MAINE
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v. UNITED STATES
Opinion of the Court
erly relied on the Tucker Act to sue for damages in the Court
of
Federal Claims.
A
The United States is immune from suit unless it unequivo-
cally consents. United States v. Navajo Nation, 556 U. S.
287, 289 (2009). The Government has waived immunity for
certain damages suits in the Court of Federal Claims
through the Tucker Ac t, 24 St at. 505. See Un i ted
States v. Mitchell, 463 U. S. 206, 212 (1983). That statute
per mits “clai m[s] agai nst the United St ates founded
either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express
or implied contract with the United States, or for liquidated
or unliquidated damages in cases not sounding in tort.” 28
U. S. C. § 1491(a)(1).
The Tucker Act, however, does not create “substantive
rights.” Navajo Nation, 556 U. S., at 290. A plaintiff rely-
ing on the Tucker Act must premise her damages action on
“other sources of law,” like “statutes or contracts.” Ibid.
For that reason, “[n]ot every claim invoking the Constitution,
a federal statute, or a regulation is cognizable under the
Tucker Act.” Mitchell, 463 U. S., at 216. Nor will every
“failure to perform an obligation . . . creat[e] a right to
monetary relief ” against the Government. United States v.
Bormes, 568 U. S. 6, 16 (2012).
To determine whether a statutory claim falls within the
Tucker Act's immunity waiver, we typically employ a “fair
interpretation” test. A statute creates a “right capable of
grounding a claim within the waiver of sovereign immunity
if, but only if, it `can fairly be interpreted as mandating com-
pensation by the Federal Government for the damage sus-
tained.' ” United States v. White Mountain Apache Tribe,
537 U. S. 465, 472 (2003) (quoting Mitchell, 463 U. S., at 217);
see also Navajo Nation, 556 U. S., at 290 (“The other source
of law need not explicitly provide that the right or duty it
creates is enforceable through a suit for damages”). Satisfy-

Cite
as: 590 U. S. 296 (2020)
323
Opinion of the Court
ing this rubric is generally both necessary and suffcient
to
permit a Tucker Act suit for damages in the Court of
Federal Claims. White Mountain Apache, 537 U. S., at
472–473.
12
But there are two exceptions. The Tucker Act yields
when the obligation-creating statute provides its own de-
12
Relying on Alexander v. Sandoval, 532 U. S. 275 (2001), the dissent's
logic suggests that a federal statute could never provide a cause of action
for damages absent magic words explicitly inviting suit. See post, at 329–
330, 332–334. We have repeatedly rejected that notion—including in
opinions written by Sandoval's author. See, e. g., United States v.
Bormes, 568 U. S. 6, 15–16 (2012); United States v. Navajo Nation, 556
U. S. 287, 290 (2009). Not even Sandoval went as far as the dissent; that
decision instead explained that “[t]he judicial task is to interpret the stat-
ute Congress has passed to determine whether it displays an intent to
create not just a private right but also a private remedy.” 532 U. S., at
286. That is precisely what the money-mandating inquiry does: It pro-
vides a framework for determining when Congress has authorized a claim
against the Government.
This framework also makes good sense. Cf. post, at 331–332. As the
author of Sandoval explained, if a statutory obligation to pay money is
mandatory, then the congressionally conferred “right to receive money,”
post, at 335, n. 5, will typically display an intent to provide a damages
remedy for the defaulted amount, Bowen v. Massachusetts, 487 U. S. 879,
923 (1988) (Scalia, J., dissenting) (a “statute commanding the payment of a
specifed amount of money by the United States impliedly authorizes (ab-
sent other indication) a claim for damages in the defaulted amount”). As
this Court recently observed, Congress enacted the Tucker Act to “sup-
pl[y] the missing ingredient for an action against the United States for
the breach of monetary obligations not otherwise judicially enforceable.”
Bormes, 568 U. S., at 12.
By the dissent's contrary suggestion, not only is a mandatory statutory
obligation to pay meaningless, so too is a constitutional one. After all,
the Constitution did not “expressly create . . . a right of action,” post, at 330,
when it mandated “just compensation” for Government takings of private
property for public use, Amdt. 5; see also First English Evangelical
Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304,
315–316 (1987). Although there is no express cause of action under the
Takings Clause, aggrieved owners can sue through the Tucker Act under
our case law. E. g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1016–
1017 (1984) (citing United States v. Causby, 328 U. S. 256, 267 (1946)).

324 MAINE
COMMUNITY HEALTH OPTIONS
v. UNITED STATES
Opinion of the Court
tailed remedies, or when the Administrative Procedure Act,
60
Stat. 237, provides an avenue for relief. See Bormes, 568
U. S., at 13, 16; Bowen v. Massachusetts, 487 U. S. 879, 900–
908 (1988).
B
Petitioners clear each hurdle: The Risk Corridors statute
is fairly interpreted as mandating compensation for damages,
and neither exception to the Tucker Act applies.
1
Rarely has the Court determined whether a statute can
“fairly be interpreted as mandating compensation by the
Federal Government.” Mitchell, 463 U. S., at 216–217 (in-
ternal quotation marks omitted). Likely this is because
so-called money-mandating provisions are uncommon, see
M. Solomson, Court of Federal Claims: Jurisdiction, Practice,
and Procedure 4–18 (2016), and because Congress has at its
disposal several blueprints for conditioning and limiting obli-
gations, see n. 7, supra; see also GAO Redbook 2–22 to 2–24,
2–54 to 2–58. But Congress used none of those tools in
§ 1342. The Risk Corridors statute is one of the rare laws
permitting a damages suit in the Court of Federal Claims.
Here again § 1342's mandatory text is signifcant. Statu-
tory “ `shall pay' language” often refects congressional in-
tent “to create both a right and a remedy” under the Tucker
Act. Bowen, 487 U. S., at 906, n. 42; see also, e. g., id., at 923
(Scalia, J., dissenting) (“[A] statute commanding the payment
of a specifed amount of money by the United States im-
pliedly authorizes (absent other indication) a claim for dam-
ages in the defaulted amount”); United States v. Testan, 424
U. S. 392, 404 (1976) (suggesting that the Back Pay Act,
5 U. S. C. § 5596, may permit damages suits under the Tucker
Act “in carefully limited circumstances”); Mitchell, 463 U. S.,
at 217 (similar). Section 1342's triple mandate—that the
HHS Secretary “shall establish and administer” the pro-
gram, “shall provide” for payment according to the statutory

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as: 590 U. S. 296 (2020)
325
Opinion of the Court
formula, and “shall pay” qualifying insurers—falls comfort-
ably
within the class of money-mandating statutes that per-
mit recovery of money damages in the Court of Federal
Claims.
Bolstering our fnding is § 1342's focus on compensating in-
surers for past conduct. In assessing Tucker Act actions,
this Court has distinguished statutes that “attempt to com-
pensate a particular class of persons for past injuries or la-
bors” from laws that “subsidize future state expenditures.”
Bowen, 487 U. S., at 906, n. 42. (The frst group permits
Tucker Act suits; the second does not.) The Risk Corridors
statute sits securely in the frst category: It uses a backwards-
looking formula to compensate insurers for losses incurred
in providing healthcare coverage for the prior year.
13
2
Nor is there a separate remedial scheme supplanting the
Court of Federal Claims' power to adjudicate petitioners'
claims.
True, the Tucker Act “is displaced” when “a law assertedly
imposing monetary liability on the United States contains its
own judicial remedies.” Bormes, 568 U. S., at 12. A plain-
tiff in that instance cannot rely on our “fair interpretation”
13
Despite agreeing that “[t]he Court is correct” on the case law, the
dissent proposes supplemental briefng and re-argument. Post, at 331,
335. We underscore, however, that all Members of this Court agree that
today's cases do not break new doctrinal ground.
The Federal Circuit, moreover, concurs in our conclusion. 892 F. 3d
1311, 1320, n. 2 (2018) (holding that § 1342 “is money-mandating for
[Tucker Act] purposes” (citing Greenlee County v. United States, 487 F. 3d
871, 877 (CA Fed. 2007))). It also agrees with our analysis broadly,
having held that “shall pay” language “generally makes a statute money-
mandating ” under the Tucker Act. Id., at 877 (internal quotation marks
omitted). Conversely, the Court of Appeals has concluded that a statute
is not money mandating where the Government enjoys “complete discre-
tion” in determining whether (and whom) to pay. See, e. g., Doe v. United
States, 463 F. 3d 1314, 1324 (2006) (noting that the statutory term, “may,”
creates a rebuttable presumption that the “statute creates discretion”).

326 MAINE
COMMUNITY HEALTH OPTIONS
v. UNITED STATES
Opinion of the Court
test, and instead must stick to the money-mandating stat-
ute'
s “own text” to “determine whether the damages liability
Congress crafted extends to the Federal Government.” Id.,
at 15–16. Examples include the Fair Credit Reporting Act,
84 Stat. 1127, and the Agricultural Marketing Agreement
Act of 1937, 50 Stat. 246. The former superseded the
Tucker Act by creating a cause of action, imposing a statute
of limitations, and providing subject-matter jurisdiction in
federal district courts. See 15 U. S. C. §§ 1681n, 1681o, 1681p;
Bormes, 568 U. S., at 15. And the latter did so by allowing
aggrieved parties to petition the Secretary of Agriculture
and by paving a path for judicial review. See 7 U. S. C.
§ 608c(15); Horne v. Department of Agriculture, 569 U. S.
513, 527 (2013).
Unlike those statutes, however, the Affordable Care Act
did not establish a comparable remedial scheme. Nor has
the Government identifed one. So this exception to the
Tucker Act is no barrier here.
Neither does the Administrative Procedure Act bar peti-
tioners' Tucker Act suit. To be sure, in Bowen, this Court
held in the Medicaid context that a State properly sued the
HHS Secretary under the Administrative Procedure Act (not
the Tucker Act) in district court (not the Court of Federal
Claims) for failure to make statutorily required payments.
See 487 U. S., at 882–887, 901–905.
But Bowen is distinguishable on several scores. First, the
relief requested there differed materially from what petition-
ers pursue here. In Bowen, the State did not seek money
damages, but instead sued for prospective declaratory and
injunctive relief to clarify the extent of the Government's
ongoing obligations under the Medicaid program. Unlike
§ 1342, which “provide[s] compensation for specifc instances
of past injuries or labors,” id., at 901, n. 31, the pertinent
Medicaid provision was a “grant-in-aid program,” which “di-
rect[ed] the Secretary . . . to subsidize future state expendi-
tures,” id., at 906, n. 42. Thus, the suit in Bowen “was not

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as: 590 U. S. 296 (2020)
327
Opinion of the Court
merely for past due sums, but for an injunction to correct
the
method of calculating payments going forward.” Great-
West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 212
(2002). And because the Court of Federal Claims “does not
have the general equitable powers of a district court to grant
prospective relief,” 487 U. S., at 905, the Court reasoned that
Bowen belonged in district court.
Second, the parties' relationship in Bowen also differs from
the one implicated here. The State had employed the Ad-
ministrative Procedure Act in Bowen because of the liti-
gants' “complex ongoing relationship,” which made it impor-
tant that a district court adjudicate future disputes. Ibid.;
see also id., at 900, n. 31. The Court added that the Ad-
ministrative Procedure Act “is tailored” to “[m]anaging the
relationships between States and the Federal Government
that occur over time and that involve constantly shifting bal-
ance sheets,” while the Tucker Act is suited to “remedy-
[ing] particular categories of past injuries or labors for which
various federal statutes provide compensation.” Id., at
904–905, n. 39.
These observations confrm that petitioners properly sued
the Government in the Court of Federal Claims. Petition-
ers' prayer for relief under the Risk Corridors statute looks
nothing like the requested redress in Bowen. Petitioners do
not ask for prospective, nonmonetary relief to clarify future
obligations; they seek specifc sums already calculated, past
due, and designed to compensate for completed labors. The
Risk Corridors statute and Tucker Act allow them that rem-
edy. And because the Risk Corridors program expired
years ago, this litigation presents no special concern about
managing a complex ongoing relationship or tracking ever-
changing accounting sheets. Petitioners' suit thus lies in
the Tucker Act's heartland.
14
14
The dissent concedes that there may “be some sharply defned catego-
ries of claims that may be properly asserted” through the Tucker Act “sim-
ply as a matter of precedent.” Post, at 333, and nn. 3, 4 (citing takings,

328 MAINE
COMMUNITY HEALTH OPTIONS
v. UNITED STATES
Opinion of the Court
V
In
establishing the temporary Risk Corridors program,
Congress created a rare money-mandating obligation requir-
i ng the Federa l Gover nment to make payments under
§ 1342's formula. And by failing to appropriate enough sums
for payments already owed, Congress did simply that and no
more: The appropriations bills neither repealed nor dis-
charged § 1342's unique obligation. Lacking other statutory
paths to relief, and absent a Bowen barrier, petitioners may
seek to collect payment through a damages action in the
Court of Federal Claims.
15
These holdings refect a principle as old as the Nation it-
self: The Government should honor its obligations. Soon
after ratifcation, Alexander Hamilton stressed this insight
as a cornerstone of fscal policy. “States,” he wrote, “who
observe their engagements . . . are respected and trusted:
while the reverse is the fate of those . . . who pursue an
opposite conduct.” Report Relative to a Provision for the
Support of Public Credit (Jan. 9, 1790), in 6 Papers of Alexan-
der Hamilton 68 (H. Syrett & J. Cooke eds. 1962). Centuries
later, this Court's case law still concurs.
breach-of-contract, failure-to-pay-compensation, and breach-of-fduciary-
duty claims as examples). Petitioners' claim—breach of an unambiguous
statutory promise to pay for services rendered to the Government—fts
easily within those precedents. The only differences the dissent seems
to assert here are that the dollar fgure is higher and that petitioners do
not deserve a “bailout” for their “bet” that the Federal Government would
comply with federal law. Post, at 330, 334; but cf., e. g., 79 Fed. Reg. 30260
(assuring insurers with “concerns that risk corridors collections may not
be suffcient to fully fund risk corridors payments” that the Government
would still pay). Our analysis in Tucker Act cases has never revolved on
such results-oriented reasoning.
15
Having found that the Risk Corridors statute is a money-mandating
provision for which a Tucker Act suit lies, we need not resolve petitioners'
alternative arguments for recovery based on an implied-in-fact contract
theory or under the Takings Clause.

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as: 590 U. S. 296 (2020)
329
Alito, J., dissenting
The judgments of the Court of Appeals are reversed, and
the
cases are remanded for further proceedings consistent
with this opinion.
It is so ordered.
Justice Alito, dissenting.
Twice this Term, we have made the point that we have
basically gotten out of the business of recognizing private
rights of action not expressly created by Congress. Just a
month ago in Comcast Corp. v. National Assn. of African
American-Owned Media, 589 U. S. 327, 334 (2020), after
noting a 1975 decision
1
inferring a private right of action
under 42 U. S. C. § 1981, we wrote the following about that
decision:
“That was during a period when the Court often `as-
sumed it to be a proper judicial function to provide such
remedies as are necessary to make effective a statute's
purpose.' Ziglar v. Abbasi, 582 U. S. 120, 132 (2017) (in-
ternal quotation marks omitted). With the passage of
time, of course, we have come to appreciate that, `[l]ike
substantive federal law itself, private rights of action to
enforce federal law must be created by Congress' and
`[r]aising up causes of action where a statute has not
created them may be a proper function for common-law
courts, but not for federal tribunals.' Alexander v.
Sandoval, 532 U. S. 275, 286–287 (2001) (internal quota-
tion marks omitted).”
A month before that, in Hernández v. Mesa, 589 U. S. 93
(2020), we made the same point and accordingly refused to
infer a cause of action under the Fourth Amendment for an
allegedly unjustifed cross-border shooting. We reasoned
that “a lawmaking body that enacts a provision that creates
a right . . . may not wish to pursue the provision's purpose
1
Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 459 (1975).

330 MAINE
COMMUNITY HEALTH OPTIONS
v. UNITED STATES
Alito, J., dissenting
to the extent of authorizing private suits for damages.” Id.,
at
100. Other recent opinions are similar. See, e. g., Ziglar
v. Abbasi, 582 U. S. 120, 132–136, 145 (2017); Jesner v. Arab
Bank, PLC, 584 U. S. 241, 264–265 (2018); id., at 274 (Thomas,
J., concurring); id., at 274–275, 276–277 (Alito, J., concurring
in part and concurring in judgment); id., at 280–281 (Gor-
such, J., concurring in part and concurring in judgment).
Today, however, the Court infers a private right of action
that has the effect of providing a massive bailout for insur-
ance companies that took a calculated risk and lost. These
companies chose to participate in an Affordable Care Act
program that they thought would be proftable. I assume
for the sake of argument that the Court is correct in holding
that § 1342 of the Affordable Care Act created an obligation
that was not rescinded by subsequent appropriations riders.
Thus, for present purposes, I do not dispute the thrust of the
analysis in Parts I–III of the opinion of the Court.
I
My disagreement concerns the critical question that the
Court decides in the remainder of its opinion. In order for
petitioners to recover, federal law must provide a right of
action for damages. The Tucker Act, 28 U. S. C. § 1491,
under which petitioners brought suit, provides a waiver of
sovereign immunity and a grant of federal-court jurisdiction,
but it does not create any right of action. See, e. g., United
States v. Navajo Nation, 556 U. S. 287, 290 (2009). Nor does
any other federal statute expressly create such a right of
action. The Court, however, holds that § 1342 of the Afford-
able Care Act does so by implication. Because § 1342 says
that the United States “shall pay” for the companies' losses,
42 U. S. C. § 18062(b)(1), the Court fnds it is proper to infer
a private right of action to recover for these losses.
This is an important step. Under the Court's decision, bil-
lions of taxpayer dollars will be turned over to insurance
companies that bet unsuccessfully on the success of the pro-

Cite
as: 590 U. S. 296 (2020)
331
Alito, J., dissenting
gram in question. This money will have to be paid even
t
hough Congress has pointedly declined to appropr iate
money for that purpose.
Not only will today's decision have a massive immediate
impact, its potential consequences go much further. The
Court characterizes provisions like § 1342 as “rare,” ante, at
324, but the phrase the “Secretary shall pay”––the language
that the Court construes as creating a cause of action––
appears in many other federal statutes.
II
The Court concludes that it is proper for us to recognize a
right of action to collect damages from the United States
under any statute that “ `can fairly be interpreted as mandat-
ing compensation.' ” Ante, at 322. The Court is correct
that prior cases have set out this test, but as the Court ac-
knowledges, we have “[r]arely” had to determine whether it
was met. See ante, at 324. And we have certainly never
inferred such a right in a case even remotely like these.
Nor has any prior case provided a reasoned explanation of
the basis for the test. In United States v. Testan, 424 U. S.
392 (1976), the Court simply lifted the language in question
from an opinion of the old United States Court of Claims
before holding that the test was not met in the case at hand.
Id., at 400–402 (citing Eastport S. S. Corp. v. United States,
178 Ct. Cl. 599, 607, 372 F. 2d 1002, 1009 (1967)). The Court
of Claims opinion, in turn, did not explain the origin or basis
for this test. See id., at 607, 372 F. 2d, at 1009. And not
only have later cases parroted this language, they have ex-
panded it. In United States v. White Mountain Apache
Tribe, 537 U. S. 465, 473 (2003) (emphasis added), the Court
wrote that “[i]t is enough . . . that a statute . . . be reasonably
amenable to the reading that it mandates a right of recovery
in damages.”
Despite the uncertain foundation of this test, our post-
Testan decisions have simply taken it as a given. I would

332 MAINE
COMMUNITY HEALTH OPTIONS
v. UNITED STATES
Alito, J., dissenting
not continue that practice. Before holding that this test re-
quires
the payment of billions of dollars that Congress has
pointedly refused to appropriate, we ought to be sure that
there is a reasonable basis for this test. And that is
questionable.
2
III
There is obvious tension between what the Court now calls
the “money-mandating ” test, ante, at 324–325, and our re-
cent decisions regarding the recognition of private rights of
action. Take the statute at issue in our Comcast decision.
That provision, 42 U. S. C. § 1981(a), states:
“All persons within the jurisdiction of the United States
shall have the same right in every State and Territory
to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal beneft of all laws and
proceedings for the security of persons and property as
is enjoyed by white citizens.” (Emphasis added.)
Our opinion in Comcast suggested that we might not fnd
this “shall have” language suffcient to justify the recognition
of a damages claim if the question came before us today as a
matter of frst impression. See 589 U. S., at 333–334. But
if that is so, how can we reach a different conclusion with
respect to the “shall pay” language in § 1342 of the Afford-
able Care Act? Similarly, the Fourth Amendment provides
that “[t]he right of the people to be secure . . . against unrea-
sonable . . . seizures . . . shall not be violated.” (Emphasis
added.) Can this rights-mandating language be distin-
guished from what the Court describes as the “money-
mandating ” language found in § 1342? See Hernández, 589
U. S., at 103, 113–114 (rejecting extension of Bivens v. Six
2
Moreover, there is at least an argument that the Court's application of
the test here is itself in confict with United States v. Testan, 424 U. S.
392, 400 (1976), which also directed that the “grant of a right of action
must be made with specifcity.”

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as: 590 U. S. 296 (2020)
333
Alito, J., dissenting
Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), to
F
ourth Amendment claim arising in a “new context”).
One might argue that the assumptions underlying the en-
actment of the Tucker Act justify our exercising more lee-
way in inferring rights of action that may be asserted under
that Act. When the Tucker Act was enacted in 1887, Con-
gress undoubtedly assumed that the federal courts would
“ `[r]ais[e] up causes of action,' ” Alexander v. Sandoval, 532
U. S. 275, 287 (2001), in the manner of a common-law court.
At that time, federal courts often applied general common
law. But since Erie R. Co. v. Tompkins, 304 U. S. 64 (1938),
the federal courts have lacked this power. Yet the “money-
mandating ” test that the Court applies today, ante, at 324–
325, and n. 13, bears a disquieting resemblance to the sort of
test that a common-law court might use in deciding whether
to create a new cause of action. To be sure, some of the
claims asserted under the Tucker Act, most notably contract
claims, are governed by the new federal common law that
applies in limited areas involving “ `uniquely federal inter-
ests.' ” Boyle v. United Technologies Corp., 487 U. S. 500,
504 (1988); see also Testan, 424 U. S., at 400. And the recog-
nition of an implied right to recover on such claims is thus
easy to reconcile with the post-Erie regime. There may
also be some sharply defned categories of claims
3
that may
be properly asserted simply as a matter of precedent.
4
But
3
Takings claims are an example. During the period when federal
courts applied general common law, such claims were brought under the
Tucker Act, apparently on the theory of implied contract. See, e. g., Hur-
ley v. Kincaid, 285 U. S. 95, 104 (1932); United States v. Lynah, 188 U. S.
445, 458–459 (1903). But the Court rejected the argument that a takings
claim could be based “exclusively on the Constitution, without reference
to any statute of the United States, or to any contract arising under an
act of Congress.” Hooe v. United States, 218 U. S. 322, 335 (1910).
4
Compare Testan, 424 U. S., at 400 (suggesting that private remedies
might be available for contract claims); United States v. Mitchell, 463 U. S.
206, 224–228 (1983) (relying on “fduciary relationship . . . [that] arises
when the Government assumes . . . control over forests and property be-

334 MAINE
COMMUNITY HEALTH OPTIONS
v. UNITED STATES
Alito, J., dissenting
the exercise of common-law power in cases like the ones now
before
us is a different matter.
An argument based on Congress's assumptions in enacting
the Tucker Act would present a question that is similar to
one we have confronted under the Alien Tort Statute (ATS),
a provision like the Tucker Act that grants federal jurisdic-
tion but does not itself create any right of action. Sosa v.
Alvarez-Machain, 542 U. S. 692, 713 (2004). Our cases have
assumed that the ATS was enacted on the assumption that
it would provide a jurisdictional basis for plaintiffs to assert
common-law claims, see id., at 724, but our recent cases have
held that even there, we should exercise “great caution” be-
fore recognizing any new claims not created by statute, id.,
at 728. See also Jesner, 584 U. S., at 264–265; Kiobel v.
Royal Dutch Petroleum Co., 569 U. S. 108, 116–117 (2013).
There is every reason to believe that a similar caution should
guide cases under the Tucker Act—especially when billions of
dollars of federal funds are at stake. The money-mandating
test that the Court applies here is in stark tension with
this precedent.
Despite its importance, the legitimacy of inferring a right
of action under § 1342 has not received much attention in
these cases. The Federal Circuit addressed the question in
passing in a footnote, 892 F. 3d 1311, 1320, n. 2 (2018), and in
this Court, the briefng and argument focused primarily on
other issues. No attempt was made to reconcile our ap-
proach to inferring rights of action in Tucker Act cases with
our broader jurisprudence.
I am unwilling to endorse the Court's holding in these
cases without understanding how the “money-mandating ”
longing to Indians” to create cause of action); Bell v. United States, 366
U. S. 393 (1961) (adjudicating suit brought by former service members for
compensation while they were prisoners of war), with Bowen v. Massachu-
setts, 487 U. S. 879, 905, n. 42 (1988) (rejecting cause of action cognizable
under the Tucker Act based on “shall pay” requirement under the Medi-
caid Act, 42 U. S. C. § 1396b(a)).

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as: 590 U. S. 296 (2020)
335
Alito, J., dissenting
test on which the Court relies fts into our general approach
to
the recognition of implied rights of action.
5
Because the
briefng and argument that we have received have not fully
addressed this important question, I would request supple-
mental briefng and set the cases for re-argument next Term.
For these reasons, I respectfully dissent.
5
The Court claims that the logic of this opinion “suggests that a federal
statute could never provide a cause of action for damages absent magic
words explicitly inviting suit.” Ante, at 323, n. 12. But all I suggest is
that the Court request briefng on the question of inferring causes of ac-
tion to recover damages under the Tucker Act. The Court makes no ef-
fort to explain how the test it applies here can be reconciled with our
general approach to inferring private rights of action but is apparently
content to allow that inconsistency to remain.
The Court is fatly wrong in saying that the test in Alexander v. Sando-
val, 532 U. S. 275, 286 (2001)—whether a statute “displays an intent to
create not just a private right but also a private remedy”—is “precisely”
the same as its “money-mandating inquiry.” Ante, at 323, n. 12. In fact,
the “money-mandating inquiry” is precisely contrary to the statement in
Sandoval. Sandoval said unequivocally that it is not enough if a statute
merely “displays an intent to create . . . a private right,” 532 U. S., at 286,
but according to the Court, it is suffcient for a statute to manifest only an
intent to create a right to receive money.
The Court asserts that there is no real difference between the billion-
dollar private right of action that the Court now creates on behalf of so-
phisticated economic actors and our prior precedents, ante, at 327, n. 14,
but the Court does not identify analogous precedents—perhaps because
there are none to cite.

336 OCTOBER
TERM, 2019
Syllabus
NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC
., et al. v. CITY OF NEW YORK, NEW YORK,
et al.
certiorari to the united states court of appeals for
the second circuit
No. 18–280. Argued December 2, 2019—Decided April 27, 2020
Petitioners sought to enjoin enforcement of a New York City rule that
restricted the transport of frearms, claiming that the rule violated the
Second Amendment. The District Court and the Court of Appeals re-
jected petitioners' claim. After the Court granted certiorari, the City
amended its rule to allow the transport of frearms to a second home
or shooting range outside the City, precisely the relief requested by
petitioners.
Held: Petitioners' claim for declaratory and injunctive relief with respect
to the City's old rule is moot. Because mootness is attributable to a
change in the challenged legal framework, the Court vacates the deci-
sion below and remands for further proceedings. The courts below may
consider on remand whether petitioners may add a claim for damages
in this lawsuit with respect to the City's old rule.
883 F. 3d 45, vacated and remanded.
Paul D. Clement argued the cause for petitioners. With
him on the briefs were Erin E. Murphy and Matthew D.
Rowen.
Principal 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, As-
sistant Attorney General Hunt, Deputy Assistant Attorney
General Mooppan, Vivek Suri, and Michael S. Raab.
Richard Dearing argued the cause for respondents. With
him on the brief were Zachary W. Carter, Claude S. Platton,
Elina Druker, Ingrid R. Gustafson, Susan Paulson, Jeffrey
L. Fisher, Anton Metlitsky, Jennifer B. Sokoler, and Brad-
ley N. Garcia.*
*Briefs of amici curiae urging reversal were fled for the State of Loui-
siana et al. by Jeff Landry, Attorney General of Louisiana, Elizabeth B.
Murrill, Solicitor General, and Michelle Ward Ghetti, Deputy Solicitor

337
Cite
as: 590 U. S. 336 (2020)
Per Curiam
Per Curiam.
In
the District Court, petitioners challenged a New York
City rule regarding the transport of frearms. Petitioners
claimed that the r u le vi olated the Second Amendment.
Petitioners sought declaratory and injunctive relief against
General, and by the Attorneys General for their respective States as fol-
lows: Steve Marshall of Alabama, Kevin Clarkson of Alaska, Mark Brnov-
ich of Arizona, Leslie Rutledge of Arkansas, Ashley Moody of Florida,
Chris Carr of Georgia, Lawrence G. Wasden of Idaho, Curtis T. Hill, Jr.,
of Indiana, Derek Schmidt of Kansas, Eric S. Schmitt of Missouri, Tim
Fox of Montana, Doug Peterson of Nebraska, Wayne Steneh jem of North
Dakota, Dave Yost of Ohio, Mike Hunter of Oklahoma, Alan Wilson of
South Carolina, Jason 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 Academics for the Second Amendment by
Joseph Edward Olson and David T. Hardy; for the American Civil Rights
Union by Kenneth A. Klukowski; for the California Rife and Pistol Associ-
ation, Inc., et al. by C. D. Michel, Sean A. Brady, and Anna M. Barvir;
for the Cato Institute by Ilya Shapiro; for Commonwealth Second Amend-
ment, Inc., by Alan Gura; for the Firearms Policy Foundation et al. by
Erik S. Jaffe and Gene C. Schaerr; for Judicial Watch, Inc., et al. by Chris
Fedeli; for the Liberal Gun Club by David D. Jensen and Daniel L.
Schmutter; for the Madison Society Foundation, Inc., by Donald E. J. Kil-
mer, Jr.; for the Mountain States Legal Foundation by Cristen Wohlgem-
uth; for the National African American Gun Association, Inc., by Stephen
P. Halbrook; for the National Rife Association of America, Inc., by David
H. Thompson, Howard C. Nielson, Jr., Peter A. Patterson, and John D.
Ohlendorf; for the National Sheriffs' Association et al. by Dan M. Pe-
terson; for Pink Pistols by Brian Koukoutchos; for Professors of Second
Amendment Law et al. by David B. Kopel and Joseph G. S. Greenlee; for
Rep. Bradley Byrne et al. by E. Travis Ramey and William Grayson
Lambert; for Robert Leider by William S. Consovoy and J. Michael Con-
nolly; and for George K. Young by Stephen D. Stamboulieh and Alan
Alexander Beck.
Briefs of amici curiae urging affrmance were fled for the State of New
York et al. by Letitia James, Attorney General of New York, Barbara
D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor
General, and Andrew W. Amend, Assistant Deputy Solicitor General, and
by the Attorneys General for their respective jurisdictions as follows: Wil-
liam Tong of Connecticut, Karl A. Racine of the District of Columbia,
Kwame Raoul of Illinois, Brian E. Frosh of Maryland, Maura Healey of
Massachusetts, Dana Nessel of Michigan, Gurbir S. Grewal of New Jersey,

338 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Per Curiam
enforcement of the rule insofar as the rule prevented their
transpor
t of frearms to a second home or shooting range
outside of the city. The District Court and the Court of Ap-
peals rejected petitioners' claim. See 883 F. 3d 45 (CA2
2018). We granted certiorari. 586 U. S. 1126 (2019). After
we granted certiorari, the State of New York amended its
frearm licensing statute, and the City amended the rule so
that petitioners may now transport frearms to a second
home or shooting range outside of the city, which is the pre-
cise relief that petitioners requested in the prayer for relief
Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F.
Neronha of Rhode Island, Thomas J. Donovan, Jr., of Vermont, and Mark
R. Herring of Virginia; for the Citizens Crime Commission of New York
City by Harry Sandick; for the National Education Association by Alice
O'Brien, Jason Walta, and Emma Leheny; for the National League of
Cities et al. by Lawrence Rosenthal and Lisa Soronen; and for 139 Mem-
bers of the United States House of Representatives by Avi Weitzman,
Akiva Shapiro, and Lee R. Crain.
Briefs of amici curiae were fled for Americans Against Gun Violence
by Fred J. H i estand; for the Becket Fund for Relig i ous Liber ty by
Luke W. Goodrich and Joseph C. Davis; for Black Guns Matter by J.
Steven Foley; for Brady et al. by Paul R. Q. Wol fson and Jonathan E.
Lowy; for the Center for Constitutional Jurisprudence by John C. East-
man and Anthony T. Caso; for Constitutional Law Professors by Vincent
Levy; for Corpus Linguistics Professors et al. by Brian R. Matsui and
Jamie A. Levitt; for the Everytown for Gun Safety Support Fund by Dee-
pak Gupta, Jonathan E. Taylor, Eric A. Tirschwell, and William J. Tay-
lor, Jr.; for Federal Courts Scholars by Michael B. Kimberly, Paul W.
Hughes, and Adam M. Samaha, pro se; for the Giffords Law Center to
Prevent Gun Violence by Benjamin C. Mizer, Amanda K. Rice, and J.
Adam Skaggs; for Gun Owners of America, Inc., et al. by Robert J. Olson,
William J. Olson, Jeremiah L. Morgan, Herbert W. Titus, Joseph W.
Miller, and John I. Harris III; for the March for Our Lives Action Fund
by Ira M. Feinberg and Kirti Datla; for Public Health Researchers et al.
by Jeffrey T. Green; for Second Amendment Law Professors by Donald
B. Verrilli, Jr., and Justin P. Raphael; for William J. Bratton by Roberto
J. Gonzalez; for Patrick J. Charles by John M. Gren fell, Thomas V. Loran
III, and Franc ine T. Rad fo rd; for Nea l Goldfarb by Mr. Go l d farb,
p ro se; and for Sen. Sheldon W h itehouse et a l. by Mr. W h i teho use,
pro se.

339
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as: 590 U. S. 336 (2020)
Per Curiam
in their complaint. App. 48. Petitioners' claim for declara-
tory
and injunctive relief with respect to the City's old rule
is therefore moot. Petitioners now argue, however, that the
new rule may still infringe their rights. In particular, peti-
tioners claim that they may not be allowed to stop for coffee,
gas, food, or restroom breaks on the way to their second
homes or shooting ranges outside of the city. The City re-
sponds that those routine stops are entirely permissible
under the new rule. We do not here decide that dispute
about the new rule; as we stated in Lewis v. Continental
Bank Corp., 494 U. S. 472, 482–483 (1990):
“Our ordinary practice in disposing of a case that has
become moot on appeal is to vacate the judgment with
directions to dismiss. See, e. g., Deakins v. Monaghan,
484 U. S., at 204; United States v. Munsingwear, Inc.,
340 U. S. 36, 39–40 (1950). However, in instances where
the mootness is attributable to a change in the legal
framework governing the case, and where the plaintiff
may have some residual claim under the new framework
that was understandably not asserted previously, our
practice is to vacate the judgment and remand for fur-
ther proceedings in which the parties may, if necessary,
amend their pleadings or develop the record more fully.
See Diffenderfer v. Central Baptist Church of Miami,
Inc., 404 U. S. 412, 415 (1972).”
Petitioners also argue that, even though they have not pre-
viously asked for damages with respect to the City's old rule,
they still could do so in this lawsuit. Petitioners did not
seek damages in their complaint; indeed, the possibility of a
damages claim was not raised until well into the litigation in
this Court. The City argues that it is too late for petitioners
to now add a claim for damages. On remand, the Court of
Appeals and the District Court may consider whether peti-
tioners may still add a claim for damages in this lawsuit with
respect to New York City's old rule. The judgment of the

340 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
Court of Appeals is vacated, and the case is remanded for
such
proceedings as are appropriate.
It is so ordered.
Justice Kavanaugh, concurring.
I agree with the per curiam opinion's resolution of the
procedural issues before us—namely, that petitioners' claim
for injunctive relief against New York City's old rule is moot
and that petitioners' new claims should be addressed as ap-
propriate in the frst instance by the Court of Appeals and
the District Court on remand.
I also agree with Justice Alito's general analysis of
Heller and McDonald. Post, at 364; see District of Colum-
bia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561
U. S. 742 (2010); Heller v. District of Columbia, 670 F. 3d
1244, 1269 (CADC 2011) (Kavanaugh, J., dissenting). And I
share Justice Alito's concern that some federal and state
courts may not be properly applying Heller and McDonald.
The Court should address that issue soon, perhaps in one
of the several Second Amendment cases with petitions for
certiorari now pending before the Court.
Justice Alito, with whom Justice Gorsuch joins, and
with whom Justice Thomas joins except for Part IV–B,
dissenting.
By incorrectly dismissing this case as moot, the Court per-
mits our docket to be manipulated in a way that should not
be countenanced. Twelve years ago in District of Columbia
v. Heller, 554 U. S. 570 (2008), we held that the Second
Amendment protects the right of ordinary Americans to
keep and bear arms. Two years later, our decision in Mc-
Donald v. Chicago, 561 U. S. 742 (2010), established that this
right is fully applicable to the States. Since then, the lower
cour ts have decided numerous cases i nvolv i ng Second
Amendment challenges to a variety of federal, state, and
local laws. Most have failed. We have been asked to re-

Cite
as: 590 U. S. 336 (2020)
341
Alito, J., dissenting
view many of these decisions, but until this case, we denied
a
ll such requests.
On January 22, 2019, we granted review to consider the
constitutionality of a New York City ordinance that bur-
dened the right recognized in Heller. Among other things,
the ordinance prohibited law-abiding New Yorkers with a
license to keep a handgun in the home (a “premises license”)
from taking that weapon to a fring range outside the City.
Instead, premises licensees wishing to gain or maintain the
ability to use their weapons safely were limited to the seven
fring ranges in the City, all but one of which were largely
restricted to members and their guests.
In the District Court and the Court of Appeals, the City
vigorously and successfully defended the constitutionality of
its ordinance, and the law was upheld based on what we are
told is the framework for reviewing Second Amendment
claims that has been uniformly adopted by the Courts of Ap-
peals.
1
One might have thought that the City, having con-
vinced the lower courts that its law was consistent with Hel-
ler, would have been willing to defend its victory in this
Court. But once we granted certiorari, both the City and
the State of New York sprang into action to prevent us from
deciding this case. Although the City had previously in-
sisted that its ordinance served important public safety pur-
poses, our grant of review apparently led to an epiphany of
sorts, and the City quickly changed its ordinance. And for
good measure the State enacted a law making the old New
York City ordinance illegal.
Thereafter, the City and amici supporting its position
strove to have this case thrown out without briefng or argu-
ment. The City moved for dismissal “as soon as is reason-
ably practicable” on the ground that it had “no legal reason
to fle a brief.” Suggestion of Mootness 1. When we re-
fused to jettison the case at that early stage, the City submit-
1
See Brief for Second Amendment Law Professors et al. as Amici
Curiae 8–9.

342 NEW
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CITY OF NEW YORK
Alito, J., dissenting
ted a brief but “stress[ed] that [its] true position [was] that
it
ha[d] no view at all regarding the constitutional questions
presented” and that it was “offer[ing] a defense of the . . .
former rul[e] in the spirit of something a Court-appointed
amicus curiae might do.” Brief for Respondents 2.
A prominent brief supporting the City went further.
Five United States Senators, four of whom are members of
the bar of this Court, fled a brief insisting that the case be
dismissed. If the Court did not do so, they intimated, the
public would realize that the Court is “motivated mainly by
politics, rather than by adherence to the law,” and the Court
would face the possibility of legislative reprisal. Brief for
Sen. Sheldon Whitehouse et al. as Amici Curiae 2–3, 18 (in-
ternal quotation marks omitted).
Regrettably, the Court now dismisses the case as moot.
If the Court were right on the law, I would of course approve
that disposition. Under the Constitution, our authority is
limited to deciding actual cases or controversies, and if this
were no longer a live controversy—that is, if it were now
moot—we would be compelled to dismiss. But if a case is on
our docket and we have jurisdiction, we have an obligation
to decide it. As Chief Justice Marshall wrote for the Court
in Cohens v. Virginia, 6 Wheat. 264, 404 (1821), “[w]e have
no more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given.”
Thus, in this case, we must apply the well-established
standards for determining whether a case is moot, and under
those standards, we still have a live case before us. It is
certainly true that the new City ordinance and the new State
law give petitioners most of what they sought, but that is
not the test for mootness. Instead, “a case `becomes moot
only when it is impossible for a court to grant any effectual
relief whatever to the prevailing party.' ” Chafn v. Chafn,
568 U. S. 165, 172 (2013) (emphasis added). “ `As long as the
parties have a concrete interest, however small, in the out-

Cite
as: 590 U. S. 336 (2020)
343
Alito, J., dissenting
come of the litigation, the case is not moot.' ” Ibid. (empha-
sis
added).
Respondents have failed to meet this “heavy burden.”
Adarand Constructors, Inc. v. Slater, 528 U. S. 216, 222
(2000) (per curiam) (internal quotation marks omitted).
This is so for two reasons. First, the changes in City and
State law do not provide petitioners with all the injunctive
relief they sought. Second, if we reversed on the merits,
the District Court on remand could award damages to rem-
edy the constitutional violation that petitioners suffered.
I
A
1
New York State has strict laws governing the possession
of frearms. With only a few exceptions, possession without
a license is punishable by imprisonment and a fne. N. Y.
Penal Law Ann. §§ 60.01(3), 70.15, 265.01–265.04, 265.20(a)(3)
(West Cum. Supp. 2020). Local authorities administer the
licensing program, § 400.00(3)(a), and in New York City, this
is done by the New York City Police Department's (NYPD's)
License Division. See 38 N. Y. C. R. R. § 5–01 et seq. (2020);
N. Y. Penal Law Ann. § 265.00(10); N. Y. C. Admin. Code § 10–
131 (2020).
New York State law contemplates two primary forms of
handgun license—a premises license, which allows the li-
censee to keep the registered handgun at a home or business,
and a carry license, which permits the licensee to carry a
concealed handgun outside the home. N. Y. Penal Law Ann.
§§ 400.00(2)(a), (b), (f ). In this case, only premises licenses
are at issue.
State law imposes an exacting standard for obtaining a
premises license, and the NYPD License Division subjects
applicants to rigorous vetting. Licenses may be issued only
if, among other things, an applicant is “of good moral charac-

344 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
ter” and “no good cause exists for the denial of the license.”
§§
400.00(1)(b), (n); see also App. 95–109 (“Instructions to
Handgun License Applicants” (capitalization omitted)).
New York City residents must submit their applications
in-person at One Police Plaza in Manhattan. An applicant
must pay a fee of $431.50; must provide proof of age, citizen-
ship, and residence; and must produce an original Social
Security card. Id., at 95–96, 98. A completed application
must specify the particular handgun that the applicant
wishes to possess and the address for which the license is
sought. It must list all the applicant's residences and places
of employment for the past fve years. Id., at 99–100, 104–
105. An applicant must answer questions about past ar-
rests, summonses, indictments, convictions, and civil orders,
and must respond to probing questions about past drug use,
subpoenas and testimony, unsuccessful applications for civil
service positions, military service, mental illness, and physi-
cal conditions (such as “Epilepsy,” “Diabetes,” or “any Ner-
vous Disorder”) that could, in the judgment of the License
Division, interfere with the use of a handgun. Id., at 96–97,
101–102. The applicant must explain where and how he or
she will safeguard the handgun when not in use, and furnish
the name and address of a New York State resident who will
take custody of the handgun in the event of the applicant's
death or disability. Id., at 104.
And these application requirements are only the begin-
ning. The submission of an application triggers a “ `rigor-
ous' ” police investigation “into the applicant's mental health
history, criminal history, [and] moral character.” Kachalsky
v. County of Westchester, 701 F. 3d 81, 87 (CA2 2012). A
licensing offcer is required by law to review mental health
records, investigate the truthfulness of the statements in
the application, and forward the applicant's fngerprints to
the New York State Division of Criminal Justice Services
and the Federal Bureau of Investigation to determine if
the applicant has a criminal record. N. Y. Penal Law Ann.

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345
Alito, J., dissenting
§§ 400.00(1), (4). Under City law, grounds for denial include,
among
other things, any arrest, indictment, or conviction for
a crime or violation (with the exception of minor traffc viola-
tions) in any federal, state, or local jurisdiction; a dishonor-
able discharge from the military; alcoholism, drug use, or
mental illness; “a poor driving history”; failure to pay debts,
including child support and taxes; and untruthfulness in the
application. 38 N. Y. C. R. R. § 5–10. The process also in-
cludes an in-person interview, during which the License Di-
vision may request additional paperwork. App. 100.
It takes the License Division approximately six months
to process applications, § 5–07(a), and during this time, the
applicant cannot lawfully possess a handgun in the home, § 5–
09. When the license issues and the applicant wishes to ob-
tain it, he or she must appear in person at police headquar-
ters for at least the third time. § 5–07(b). At present, we
are told, approximately 40,000 City residents (representing
about 1.29% of the households in the City)
2
have been issued
handgun licenses.
The NYPD may revoke a premises license at any time,
§ 5–07(d), including for such things as laminating the license,
§ 5–22(a)(4). And a license expires after three years, so a
licensee who wants to continue to possess a gun in the home
after that time must fle a renewal application. § 5–28(a).
2
The ordinance that petitioners challenged in this case was
adopted in 2001. Before then, the NYPD issued both prem-
ises licenses and so-called “target licenses,” which allowed
licensees to transport their handguns to specifed, preap-
proved ranges outside of the City. See App. to Pet. for Cert.
90–92. Target licenses were eliminated in 2001, and from
that time until the City's post-certiorari change of heart,
2
The last census found that there were 3,109,784 households in the City.
D. Gaquin & M. Ryan, County and City Extra: Special Decennial Census
Edition 607 (2012).

346 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
premises licensees could practice with their guns only if:
they
traveled “directly to and from an authorized small arms
range/shooting club”; their guns were unloaded and secured
in a locked container; and any ammunition was “carried sepa-
rately.” § 5–23(a)(3) (in effect prior to July 21, 2019) (em-
phasis added); id., at 88. And—what is most important for
present purposes—the only “authorized” ranges or clubs
were ones “located in New York City.” App. 50, 63. At the
relevant time, there were only seven such ranges in the en-
tire City: two in Staten Island, two in Queens, one in Brook-
lyn, one in Manhattan, and one in the Bronx. See id., at 92–
93. All but one generally admitted only members and their
guests, and the only range open to the public was closed for
a time during the pendency of the case below.
B
1
In 2013, three individuals and one organization represent-
ing New York gun owners brought suit under Rev. Stat.
§ 1979, 42 U. S. C. § 1983, against the City and the NYPD
License Division, contending that the restrictive premises
license scheme, 38 N. Y. C. R. R. § 5–23, violated their rights
under the Second Amendment and other provisions of the
Constitution.
One of the individual petitioners, Romolo Colantone, has
held a New York City frearms license since 1979. App. 28–
29, 51. Colantone currently has a premises license for his
residence and wishes to take his handgun to ranges and com-
petitions outside the City and to his second home in Hancock,
New York. He refrained from doing so because of the ordi-
nance prohibiting such travel. Id., at 32, 53–54. For exam-
ple, Colantone registered to participate in the 2012 World
Class Steel Northeast Regional Championship in Old Bridge,
New Jersey—about 20 miles from his home in the City.
Plaintiffs' Memorandum in Support of Cross-Motion for
Summary Judgt. in No. 1:13–cv–2115 (SDNY), Doc. No. 44

Cite
as: 590 U. S. 336 (2020)
347
Alito, J., dissenting
(Plaintiffs' Memo). But after the hosts of that competition
a
lerted him that his premises license did not allow him to
transport his handgun to New Jersey—and after Inspector
Andrew Lunetta, the commanding offcer of the NYPD Li-
cense Division, confrmed this—Colantone pulled out of the
competition. App. 32, 49–50, 55.
Plaintiff Efrain Alvarez has had a frearms license for ap-
proximately 30 years, and plaintiff Jose Anthony Irizarry has
been licensed for 15 years. Both men would like to take
their handguns to ranges and competitions outside the City,
but they have not done so because of the same ordinance.
See id., at 29, 32–33. After the hosts of the previously
noted competition in New Jersey advised them that their
New York City premises licenses barred them from taking
their handguns outside the City, they both decided not to
attend. Id., at 32–33. For the same reason, Alvarez also
did not participate in the International Defensive Pistol As-
sociation Postal Matches in Simsbury, Connecticut. Ibid.
All three individual petitioners aver that they regularly
traveled outside the City to ranges and championships
before learning of the restriction imposed by § 5–23. Id., at
32–33.
Petitioners' amended complaint maintained that the Sec-
ond Amendment requires “unrestricted access to gun ranges
and shooting events in order to practice and perfect safe gun
handling skills.” Id., at 36 (emphasis added). The com-
plaint asserts that practice is necessary for “the safe and
responsible use of frearms for . . . self-defense, and the
defense of one's home.” Id., at 33. And a New York City
ordinance backs this up, providing that a licensee “should
endeavor to engage in periodic handgun practice at an
authorized small arms range/shooting club.” § 5–22(a)(14).
According to the complaint, the City, by limiting licensees
like petitioners to the seven ranges in the City, imposed a
serious burden on the exercise of their Second Amendment
right. App. 36.

348 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
The amended complaint's prayer for relief sought an in-
junc
tion against enforcement of the travel restriction, as well
as attorney's fees, costs of suit, declaratory relief . . . and
“[a]ny other such further relief as the [c]ourt deems just
and proper.” Id., at 47–48 (emphasis added).
2
The City vigorously defended its law. The ordinance did
not impinge on petitioners' Second Amendment right, the
City told the lower courts, and even if it did, the law survived
heightened scrutiny. That was so, the City maintained, be-
cause the travel restrictions were “necessary to protect the
public safety insofar as the transport of frearms outside the
home potentially endangers the public.” City of New York's
Memorandum in Support of Cross-Motion for Summary
Judgt. & Opposition to Plaintiffs' Motion for Preliminary In-
junction in No. 1:13–cv–2115, Doc. No. 36, p. 10.
To support this assertion, the City relied on the declara-
tion of Inspector Lunetta, which attempted to explain why
the restrictions were “necessary to address . . . public safety
concerns.” App. 76. Lunetta justifed the law in three
ways. First, he maintained that the restriction on out-of-
city transport promoted public safety by causing “premises
license holders [to] bring their frearms into the public
domain less frequently.” Id., at 78; see also id., at 77.
Second, he claimed that the transport restriction helped to
prevent the gun violence that might occur if a licensee be-
came involved in an altercation while on the way to an out-
of-city range or competition. Lunetta asserted that licens-
ees are “as susceptible as anyone else” to “stress-inducing
circumstance[s]” that can lead to violence. Ibid.
Finally, he claimed that the travel restriction made it sim-
pler for a patrol offcer to check whether the holder of a
premises license who is found in possession of a gun outside
the home is really headed for a range or is simply using that
as a pretext for carrying a gun. Id., at 78–79. He declared

Cite
as: 590 U. S. 336 (2020)
349
Alito, J., dissenting
that “there were several reported cases where [holders of
premises
or target licenses] were charged with criminal pos-
session of a weapon when found with their frearms while
not en route to a range.” Id., at 89. He cited fve cases,
id., at 88–89, but not one of the opinions indicates that the
licensee claimed to be headed to a range or competition out-
side the City.
3
The District Court denied petitioners' motions for prelimi-
nary injunction and summary judgment and granted the
City's cross-motion for summary judgment. 86 F. Supp. 3d
249, 261–263 (2015). The District Court deemed any burden
on petitioners' Second Amendment right “minimal or, at
most, modest.” Id., at 260. And the court credited the
City's public safety rationale, citing the Lunetta declaration
approvingly and discussing the importance of the travel re-
strictions in limiting the movement of licensees with their
handguns. See id., at 262.
The Second Circuit affrmed. The panel derided the ordi-
nance's burdens on petitioners' Second Amendment right as
“trivial” and expressly credited Lunetta's explanation of the
public safety purposes served by the travel restriction. 883
F. 3d 45, 63–64 (2018).
When petitioners fled a petition for certiorari, the City
opposed review, contending, among other things, that the
travel restriction promoted public safety, as demonstrated
by Lunetta's declaration (which the City cited six times).
Brief in Opposition 9, 21–23. We nevertheless granted re-
view on January 22, 2019, and this, as noted, apparently led
3
In one case, the violation charged was transporting a loaded gun. Peo-
ple v. Schumann, 133 Misc. 2d 499, 507 N. Y. S. 2d 349 (Crim. Ct. 1986).
In another case, the gun was not in a locked container. People v. Thomp-
son, 92 N. Y. 2d 957, 705 N. E. 2d 1200 (1998); see also People v. Lap, 150
Misc. 2d 724, 570 N. Y. S. 2d 258 (Crim. Ct. 1991) (loaded and unlocked).
In the other two, there is no mention of an out-of-city range. Lugo v.
Safr, 272 App. Div. 2d 216, 708 N. Y. S. 2d 618 (2000); People v. Ocasio,
108 Misc. 2d 211, 441 N. Y. S. 2d 148 (1981).

350 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
the City to reconsider whether the travel restriction was ac-
tua
lly needed for public safety purposes.
C
On April 12, the NYPD published a proposed amendment
to the travel restriction that was admittedly spurred at least
in part by our grant of review. See Motion to Hold Briefng
Schedule in Abeyance in No. 18–280, p. 3. Under this
amendment, holders of premises licenses would be allowed
to take their guns to ranges, competitions, and second homes
outside the City provided that the licensees traveled “di-
rectly” between their residences and the permitted destina-
tions. After a period of notice and comment, the proposed
amendment was adopted on June 21 and took effect on July
21. Suggestion of Mootness 5–6.
Our grant of certiorari also prompted action by New York
State. With the support of the City, Tr. of Oral Arg. 46, the
Legislature enacted a new law abrogating any local law, rule,
or regulation that prevented the holder of a premises license
from transporting a licensed handgun “directly to or from”
an authorized range, competition, or second home. N. Y.
Penal Law Ann. § 400.00(6) (as in effect July 16, 2019).
Shortly after the new State law took effect, the City fled
a Suggestion of Mootness, asking us to vacate the decision
below and to remand with instructions to dismiss. The City
urged us to rule on this matter expeditiously so that it would
not be required to fle a brief defending its prior law. Sug-
gestion of Mootness 1. When we refused to vacate at that
stage, the City protested that briefng the merits “require[d]
the City to do what Article III's case-or-controversy require-
ment is designed to avoid: engage in litigation regarding the
constitutionality of a law that no longer exists” and that the
City would not reenact. Brief for Respondents 1. When
the case was argued, counsel for the City was asked whether
the repeal of the travel restriction had made the City any

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351
Alito, J., dissenting
less safe, and his unequivocal answer was no. Tr. of Oral
Arg
. 52.
II
The Court vacates the judgment of the Court of Appeals,
apparently on the ground that this case is now moot.
(Other than mootness, no other basis for vacating comes to
mind, and therefore I proceed on that assumption.) And if
that is the reason for what the Court has done, the Court is
wrong. This case is not moot.
Article III, § 2 of the Constitution limits the jurisdiction
of the federal courts to “Cases” and “Controversies,” and as
a result, we may not “ `decide questions that cannot affect
the rights of litigants in the case before [us].' ” Chafn, 568
U. S., at 172. Nor may we advise “ `what the law would be
upon a hypothetical state of facts.' ” Ibid. This means that
the dispute between the parties in a case must remain alive
until its ultimate disposition. If a live controversy ceases to
exist—i. e., if a case becomes moot—then we have no juris-
diction to proceed. But in order for this to happen, a case
must really be dead, and as noted, that occurs only “ `when
it is impossible for a court to grant any effectual relief what-
ever to the prevailing party.' ” Ibid. (quoting Knox v. Serv-
ice Employees, 567 U. S. 298, 307 (2012)). “ `[A]s long as the
parties have a concrete interest, however small, in the out-
come of the litigation, the case is not moot.' ” Chafn, 568
U. S., at 172 (quoting Knox, 567 U. S., at 307–308). Thus, to
establish mootness, a “demanding standard” must be met.
Mission Product Holdings, Inc. v. Tempnology, LLC, 587
U. S. 370, 377 (2019).
We have been particularly wary of attempts by parties to
manufacture mootness in order to evade review. See Knox,
567 U. S., at 307; accord, Northeastern Fla. Chapter, Associ-
ated Gen. Contractors of America v. Jacksonville, 508 U. S.
656, 661 (1993). And it is black-letter law that we have a
“virtually unfagging ” obligation to exercise our jurisdiction.

352 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
Colorado River Water Conservation Dist. v. United States,
424
U. S. 800, 817 (1976).
In this case, the amended City ordinance and the new
State law gave petitioners most of what they sought in their
complaint, but the new laws did not give them complete re-
lief. It is entirely possible for them to obtain more relief,
and therefore this case is not moot. This is so for the follow-
ing reasons.
A
First, this case is not moot because the amended City or-
dinance and new State law do not give petitioners all the
prospective relief they seek. Petitioners asserted in their
complaint that the Second Amendment guarantees them, as
holders of premises licenses, “unrestricted access” to ranges,
competitions, and second homes outside of New York City,
App. 36, and the new laws do not give them that.
4
The new City ordinance has limitations that petitioners
claim are unconstitutional, namely, that a trip outside the
City must be “direc[t]” and travel within the City must be
“continuous and uninterrupted.” 38 N. Y. C. R. R. §§ 5–
23(a)(3), (7). Exactly what these restrictions mean is not
clear from the face of the rule, and the City has done little
to clarify their reach. At argument, counsel told us that the
new rule allows “bathroom breaks,” “coffee stops,” and any
other “reasonably necessary stops in the course of travel.”
Tr. of Oral Arg. 36, 64. But the meaning of a “reasonably
4
Contrary to the City's suggestion, see Reply to Suggestion of Mootness
5, petitioners have not softened their stance over the course of this litiga-
tion. At summary judgment, petitioners asked that the District Court
declare 38 N. Y. C. R. R. § 5–23 unconstitutional and enjoin its enforcement
“in any manner that prohibits or precludes [petitioners] from traveling ”
with their handguns to a range, competition, or second home outside the
borders of New York City. Notice of Cross-Motion for Summary Judgt.
in No. 1:13–cv–2115, Doc. No. 43, p. 1; Plaintiffs' Memo, at 39; and Plain-
tiffs' Reply Memorandum, Doc. No. 53, p. 13 (emphasis added); see also
Motion for Preliminary Injunction, Doc. No. 9, p. 1.

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353
Alito, J., dissenting
necessary” stop is hardly clear. What about a stop to buy
grocer
ies just before coming home? Or a stop to pick up a
friend who also wants to practice at a range outside the City?
Or a quick visit to a sick relative or friend who lives near a
range? The City does not know the answer to such ques-
tions. See, e. g., id., at 65–66.
Based on all this, we are left with no clear idea where the
City draws the line, and the situation is further complicated
by the overlay of State law. The new State law appears to
prevent the City from penalizing any “direc[t]” trip to a
range or competition outside the City, but the State law does
not defne that limitation. Petitioners wanted to enter com-
petitions in upstate New York more than a fve hour drive
from the City. Could they stop along the way? And if so,
for how long? The State has not explained its understand-
ing of this limitation, and in any event, prosecutorial deci-
sions in New York are generally made by the State's 67
elected district attorneys. See Haggerty v. Himelein, 221
App. Div. 2d 138, 144–145, 644 N. Y. S. 2d 934, 940 (1996).
The bottom line is that petitioners, who sought “unrestricted
access” to out-of-city ranges and competitions, are still sub-
ject to restrictions of undetermined meaning.
These restrictions may not seem very important, but that
is beside the point for purposes of mootness. Nor does it
matter whether, in the end, those restrictions would be found
to violate the Second Amendment. All that matters for
present purposes is that the City still withholds from peti-
tioners something that they have claimed from the beginning
is their constitutional right. It follows that the case is not
moot. It is as simple as that.
The situation here resembles that in Knox, 567 U. S. 298.
The issue in that case was whether a public sector union had
provided nonmembers the sort of notice that our case law
required before they could be forced to pay a fee to subsidize
certain union activities. We granted certiorari to review

354 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
the Ninth Circuit's holding that the notice that the union had
prov
ided was suffcient, but before we could decide the case,
the union sent out a new notice and moved to dismiss the
case as moot. The employees objected that the new notice
was inadequate, and we refused to dismiss. In so doing, we
did not opine on the adequacy of the new notice but simply
held that the case was not moot because “there [was] still a
live controversy as to the adequacy” of the notice. Id., at
307. Although the new notice might have given the non-
members most of what they sought, they still possessed “ `a
concrete interest, however small, in the outcome of the litiga-
tion.' ” Id., at 307–308. And that was enough.
The situation here is essentially the same. Petitioners got
most, but not all, of the prospective relief they wanted, and
that means that the case is not dead.
B
The case is not moot for a separate and independent rea-
son: If this Court were to hold, as petitioners request and as
I believe we should, that 38 N. Y. C. R. R. § 5–23 violated
petitioners' Second Amendment right, the District Court on
remand could (and probably should) award damages. See
Mission Product Holdings, 587 U. S., at 376–377. Petition-
ers brought their claims under 42 U. S. C. § 1983, which per-
mits the recovery of damages. See Monell v. New York City
Dept. of Social Servs., 436 U. S. 658, 695–701 (1978). And
while the amended complaint does not expressly seek dam-
ages, it is enough that it requests “[a]ny other such further
relief as the [c]ourt deems just and proper.” App. 48.
Under modern pleading standards, that suffces.
The Federal Rules of Civil Procedure provide that a “fnal
judgment should grant the relief to which each party is enti-
tled, even if the party has not demanded that relief in its
pleadings.” Rule 54(c) (emphasis added); see also 10 C.
Wright, A. Miller, & M. Kane, Federal Practice and Procedure

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355
Alito, J., dissenting
§§ 2662, 2664 (4th ed. 2014) (Wright & Miller).
5
Cour
ts have
refused to award relief outside the pleadings only when that
would somehow prejudice the defendant, such as when the
defendant did not have an opportunity to contest the basis
for that relief. See Albemarle Paper Co. v. Moody, 422 U. S.
405, 424 (1975); United States v. Marin, 651 F. 2d 24, 30 (CA1
1981); 10 Wright & Miller § 2664. Otherwise, “a party
should experience little diffculty in securing a remedy other
than that demanded in the pleadings as long as the party
shows a right to it.” Id., § 2662, at 168. Here, that could
include damages.
1
At a minimum, if petitioners succeeded on their challenge
to the travel restrictions, they would be eligible for nominal
damages. When a plaintiff 's constitutional rights have been
violated, nominal damages may be awarded without proof of
any additional injury. See Carey v. Piphus, 435 U. S. 247
(1978); Memphis Community School Dist. v. Stachura, 477
U. S. 299 (1986). Nominal damages are “the appropriate
means of vindicating rights whose deprivation has not
caused actual, provable injury.” Id., at 308, n. 11 (internal
quotation marks omitted); see also Carey, 435 U. S., at 266.
And they are particularly important in vindicating constitu-
tional interests. See Riverside v. Rivera, 477 U. S. 561, 574
(1986) (plurality opinion). Consequently, courts routinely
5
Lower courts have affrmed that Fed. Rule Civ. Proc. 54(c) means what
it says: “[R]elief in damages is not foreclosed by plaintiff 's failure to ask
for damages in prayer.” Jet Inv., Inc. v. Department of Army, 84 F. 3d
1137, 1143 (CA9 1996); Illinois Physicians Union v. Miller, 675 F. 2d 151,
158 (CA7 1982) (“It is well-settled that the district court may grant mone-
tary relief . . . , even without a specifc request”); United States v. Marin,
651 F. 2d 24, 30 (CA1 1981) (affrming award of damages although not
expressly requested in complaint); Sapp v. Ren froe, 511 F. 2d 172, 176, n. 3
(CA5 1975) (allowing claim for damages raised for frst time on appeal in
light of Rule 54(c) and the catchall prayer for relief in plaintiff 's complaint);
accord, 10 Wright & Miller § 2664.

356 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
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Alito, J., dissenting
award nominal damages for constitutional violations. See,
e.
g., Stoedter v. Gates, 704 Fed. Appx. 748, 762 (CA10 2017)
(Fourth Amendment); Klein v. Laguna Beach, 810 F. 3d
693, 697 (CA9 2016) (free speech); Project Vote/Voting for
America, Inc. v. Dickerson, 444 Fed. Appx. 660, 661 (CA4
2011) (per curiam) (free speech); Price v. Charlotte, 93 F. 3d
1241, 1257 (CA4 1996) (equal protection). And it is widely
recognized that a claim for nominal damages precludes moot-
ness. See 13C C. Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure § 3533.3, n. 47 (3d ed. Supp. 2019)
(collecting cases); see also, e. g., Central Radio Co. v. Norfolk,
811 F. 3d 625, 631–632 (CA4 2016); Morgan v. Plano Inde-
pendent School Dist., 589 F. 3d 740, 748, n. 32 (CA5 2009);
Bernhardt v. County of Los Angeles, 279 F. 3d 862, 872 (CA9
2002); Amato v. Saratoga Springs, 170 F. 3d 311, 317 (CA2
1999) (Sand, J., joined by Sotomayor, J.); Committee for First
Amendment v. Campbell, 962 F. 2d 1517, 1526–1527 (CA10
1992); Henson v. Honor Committee of U. Va., 719 F. 2d 69,
72, n. 5 (CA4 1983).
6
2
It is even possible that one or more of the petitioners may
be eligible for compensatory damages. To get such relief,
they would of course be required to show that they suffered
an “actual injury.” See Carey, 435 U. S., at 266; D. Dobbs &
C. Roberts, Law of Remedies § 7.4(1), p. 660 (3d ed. 2018).
But petitioners may be able to make such a showing. As
discussed above, the failure to include in their complaint spe-
cifc factual allegations of actual injury would not preclude
such recovery.
7
See Fed. Rule Civ. Proc. 54(c). Nor were
6
A single Circuit has held that a claim for nominal damages alone does
not maintain a live dispute. See Flanigan's Enterprises, Inc. of Ga. v.
Sandy Springs, 868 F. 3d 1248 (CA11 2017). But that holding is diffcult
to reconcile with Carey and Stachura's endorsement of nominal damages
as an appropriate constitutional remedy.
7
Even if specifc allegations in the complaint were necessary, the District
Court could allow amendment. See Zenith Radio Corp. v. Hazeltine Re-
search, Inc., 401 U. S. 321, 331 (1971); 6 Wright & Miller § 1474 (3d ed. 2010).

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357
Alito, J., dissenting
petitioners obligated to provide information supporting ac-
tua
l injury in opposing the City's motion for summary
judgment.
If we were to reverse the judgment below and hold the
City's old rule unconstitutional, it would be appropriate to
remand the case for proceedings on the question of remedies.
We have frequently done this when we reverse a judgment
that was entered against the plaintiff on liability grounds.
See, e. g., Mission Product Holdings, 587 U. S., at 376, 387
(deeming case live due to claim for damages, reversing judg-
ment against petitioner, and remanding for further proceed-
ings); Parents Involved in Community Schools v. Seattle
School Dist. No. 1, 551 U. S. 701, 720, 748 (2007) (holding case
live due in part to damages claim in complaint, reversing
judgment against petitioners, and remanding for further pro-
ceedings); Firefghters v. Stotts, 467 U. S. 561, 583 (1984)
(holding case live due to damages caused by lower court in-
junction and reversing); Powell v. McCormack, 395 U. S. 486,
493, 550 (1969) (remanding for award of unpaid congressional
salary); cf., e. g., Richmond v. J. A. Croson Co., 488 U. S. 469,
478, n. 1 (1989) (holding that expiration of challenged ordi-
nance did not moot dispute over whether defendant's action
was “unlawful and thus entitle[d] appellee to damages”).
With this is mind, the possibility of actual damages cannot
be ruled out. One or more of the petitioners could seek
compensation for out-of-pocket expenses, such as member-
ship fees at in-city ranges. The current record shows that
at least one of the petitioners is a member of a range in the
City. App. 93–94. In addition, a petitioner may be entitled
to compensation for expenses incurred in registering for out-
of-city competitions from which he was compelled to with-
draw. The record shows that one petitioner signed up for
such a competition but had to pull out as a result of the City
ordinance. Id., at 32, 55. Petitioners could also seek com-
pensation for any intangible but nevertheless real and per-
sonal injuries that they suffered due to their inability to at-
tend shooting competitions, to practice at out-of-city ranges,

358 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
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Alito, J., dissenting
or to take their licensed handguns to second homes. Non-
economic
damages such as loss of enjoyment are available in
§ 1983 litigation. See Stachura, 477 U. S., at 306–307; Carey,
435 U. S., at 260–264; Dobbs, Law of Remedies § 7.4(1), at
660, § 8.1(4), at 676; cf. 4 F. Harper, F. James, & O. Gray,
Torts § 25.10A (3d ed. 2007) (surveying loss of enjoyment
awards). Among other things, depriving a licensee of the
opportunity to obtain the benefts of competing and perhaps
obtaining recognition at a well-known competition may cause
a real loss. Lower courts have affrmed awards of compen-
satory damages for similar kinds of injuries resulting from
constitutional violations. See Dobbs, Law of Remedies, at
660.
8
Petitioners could introduce evidence on remand to
show such loss.
For purposes of determining whether this case is moot, the
question is not whether petitioners would actually succeed
8
For example, in Brooks v. Andolina, 826 F. 2d 1266 (1987), the Third
Circuit held that a prisoner could seek damages for various deprivations
suffered during punitive segregation imposed in retaliation for the exer-
cise of his free speech rights. Id., at 1270. These injuries included loss
of visiting and phone privileges, recreation rights, and access to the law
library.
In Young v. Little Rock, 249 F. 3d 730 (2001), the Eighth Circuit affrmed
a jury award of compensatory damages for wrongful detention that caused
psychological harm. Id., at 736.
In Drake v. Lawrence, 524 N. E. 2d 337 (1988), the Indiana Court of
Appeals affrmed a compensatory damages award for, among other things,
the embarrassment of a false arrest in front of an employee and customer
and the anxiety associated with pending charges. Id., at 342.
In Watseka v. Illinois Public Action Council, 796 F. 2d 1547 (1986),
aff 'd, 479 U. S. 1048 (1987), the Seventh Circuit affrmed an award of dam-
ages for “specifc compensable, non-abstract harm” resulting from an un-
constitutional ordinance restricting door-to-door solicitation. That harm
included the organization's inability to recruit new members, disseminate
its views, and encourage others to support its positions. 796 F. 2d, at
1558–1559; see also, e. g., King v. Zamiara, 788 F. 3d 207, 213–214 (CA6
2015) (affrming compensatory damages award for injury caused by trans-
fer of inmate in retaliation for fling lawsuit, when transfer impeded his
ability to participate in litigation).

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359
Alito, J., dissenting
in obtaining such damages or whether their loss was sub-
st
antial. If there is a possibility of obtaining damages in
any amount, the case is not moot.
3
One fnal point about damages must be addressed. We
have warned in dicta that a claim of damages, “asserted
solely to avoid otherwise certain mootness, [bears] close in-
spection.” Arizonans for Offcial English v. Arizona, 520
U. S. 43, 71 (1997). But if, after close inspection, we con-
clude that the stringent test for mootness is not met, we
have no authority to dismiss on that ground.
Nothing in Arizonans for Offcial English suggests other-
wise. In that case, the plaintiff, who was an employee of
the State of Arizona when she fled her complaint, sued the
State under § 1983, claiming that a state constitutional
amendment declaring English the offcial language of the
State unconstitutionally prevented her from using Spanish
to perform her job. Her requests for declaratory and in-
junctive relief became moot when she left state employment
for the private sector, and we held that her request for nomi-
nal damages from the State did not save her case from moot-
ness since a State may not be sued under § 1983. Id., at 67–
69, 71. The situation here is different because nothing
blocks an award of nominal damages from a city.
9
9
The per curiam refuses to decide whether petitioners have a live claim
for damages, claiming that the lower courts should determine in the frst
instance whether any effort to recover damages has come “too late.”
Ante, at 339. But as previously discussed, see supra, at 354–355, preju-
dice is the critical factor in determining whether to permit a late request
for a form of relief not expressly demanded in a complaint, and the per
curiam does not identify any reason why allowing petitioners' request for
damages at this juncture would prejudice the City. Under the Court's
decision, allowing damages will not prolong this litigation, because the
case is being remanded anyway, and there is no suggestion that the City
would have litigated the case any differently if it had been on express
notice that petitioners were seeking the sort of modest damages discussed
in this opinion.

360 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
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Alito, J., dissenting
C
Rel
ief would be particularly appropriate here because the
City's litigation strategy caused petitioners to incur what are
surely very substantial attorney's fees in challenging the
constitutionality of a City ordinance that the City went to
great lengths to defend.
10
Of course, a claim for attorney's
fees is not alone suffcient to preserve a live controversy.
Lewis v. Continental Bank Corp., 494 U. S. 472, 480 (1990).
But where a live controversy remains, a defendant who
would otherwise be liable for attorney's fees should not
be able to wiggle out on the basis of a spurious claim of
mootness.
If a § 1983 plaintiff achieves any success on the merits,
even an award of nominal damages, the plaintiff is a prevail-
ing party and is eligible for attorney's fees under 42 U. S. C.
§ 1988. See Buckhannon Board & Care Home, Inc. v. West
Virginia Dept. of Health and Human Resources, 532 U. S.
598, 603 (2001). For this reason, were the Court to exercise
jurisdiction in this case and rule for petitioners, they would
be eligible for attorney's fees. See Farrar v. Hobby, 506
U. S. 103, 109 (1992).
On the other hand, dismissing the case as moot means that
petitioners are stuck with the attorney's fees they incurred
in challenging a rule that the City ultimately abandoned—
and which it now admits was not needed for public safety.
That is so because “[a] defendant's voluntary change in con-
duct, although perhaps accomplishing what the plaintiff
sought to achieve by the lawsuit, lacks the necessary judi-
cial imprimatur on the change.” Buckhannon, 532 U. S.,
at 605.
Section 1988 attorney's fees are an important component
of civil rights enforcement. See id., at 635–638 (Ginsburg,
J., dissenting). The prospect of an award of attorney's fees
10
Attorney's fees are specifcally requested in the amended complaint.
App. 48.

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Alito, J., dissenting
ensures that “private attorneys general” can enforce the civil
r
ights laws through civil litigation, even if they “ `cannot af-
ford legal counsel.' ” Id., at 635–636.
Here, the City fought petitioners tooth and nail in the Dis-
trict Court and the Court of Appeals, insisting that its old
ordinance served important public safety purposes. When
petitioners sought review in this Court, the City opposed
certiorari on the same ground. But once we granted review,
the City essentially attempted to impose a unilateral settle-
ment that deprived petitioners of attorney's fees. And
those fees would likely be substantial. They would refect
fve years of intensive litigation—everything from the draft-
ing of the complaint, through multiple rounds of District
Court motion practice, to appellate review, and proceedings
in this Court.
III
The per curiam provides no sound reason for holding that
this case is moot. The per curiam states that the City's
current rule gave petitioners “the precise relief [they] re-
quested” in their prayer for relief, ante, at 338, but that is not
so. Petitioners' prayer for relief asks the court to enjoin 38
N. Y. C. R. R. § 5–23 insofar as it “prohibit[s]” travel outside
the City to ranges, competitions, and second homes. App.
48. The new rule's conditions unmistakably continue to pro-
hibit some travel outside the City to those destinations. For
this reason, petitioners have not obtained the “unrestricted
access” that, they have always maintained, the Second
Amendment guarantees. Id., at 36. The per curiam im-
plies that the current rule, as interpreted at oral argument
by counsel for the City, gives petitioners everything that
they now seek, ante, at 338, but that also is not true. Peti-
tioners still claim the right to “unrestricted access” and
counsel's off-the-cuff concessions do not give them that.
11
11
The City's enforcement position as to “coffee, gas, food, or restroom
breaks” by no means resolves the meaning of § 5–23. The City's counsel
informed the Court that those stops are permissible because they are “rea-

362 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
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Alito, J., dissenting
The per curiam's main argument appears to go as follows:
P
etitioners' original claim was a challenge to New York's
old rule; this claim is now moot due to the repeal of
that rule; and what petitioners are now asserting is a
new claim, namely, that New York's current rule is also
unconstitutional.
This argument also misrepresents the nature of the claim
asser ted i n petiti oners' complai nt. W hat petiti oners
claimed in their complaint and still claim is that they are
entitled to “unrestricted access” to out-of-city ranges and
competitions. App. 36. The City's replacement of one law
denying unrestricted access with another that also denies
that access did not change the nature of petitioners' claim or
render it moot.
Consider where acceptance of the argument adopted by
the per curiam leads. Suppose that a city council, seeking
to suppress a local paper's opposition to some of its pro-
grams, adopts an ordinance prohibiting the publication of any
editorial without the approval of a city offcial. Suppose
that a newspaper challenges the constitutionality of this rule,
arguing that the First Amendment confers the unrestricted
right to editorialize without prior approval. If the council
then repeals its ordinance and replaces it with a new one
requiring approval only if the editorial concerns one particu-
lar city program, would that render the pending lawsuit moot
and require the paper to commence a new one?
Or take this example. A State enacts a law providing
that any woman wishing to obtain an abortion must submit
certifcation from fve doctors that the procedure is medically
necessary. After a woman sues, claiming that any require-
ment of physician certifcation is unconstitutional, the State
sonably necessary” under the new rule. Tr. of Oral Arg. 64–65. But
what that means is far from clear, and, at any rate, coffee breaks and the
like are just illustrative examples of potential ways in which the new rule
affords something less than unfettered access to gun ranges, competitions,
and second homes outside the City. See supra, at 352–353.

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363
Alito, J., dissenting
replaces its old law with a new one requiring certifcation by
three
physicians. Would the court be required to dismiss
the woman's suit? Suppose the court, following the prece-
dent set by today's decision, holds that the case is moot, and
suppose that the woman brings a second case challenging the
new law on the same ground. If the State repeals that law
and replaces it with one requiring certifcation by two doc-
tors, would the second suit be moot? And what if the State
responds to a third suit by enacting replacement legislation
demanding certifcation by one doctor?
Mootness doctrine does not require such results. A chal-
lenge to an allegedly unconstitutional law does not become
moot with the enactment of new legislation that reduces but
does not eliminate the injury originally alleged. And that
is the situation here.
The Court cites one case in support of its holding, Lewis
v. Continental Bank Corp., 494 U. S. 472, 482–483 (1990), but
that decision is wholly inapposite. The situation in Lewis
was complicated, but the critical point for present purposes
is that, by the time the case reached this Court, the enact-
ment of new legislation meant that the plaintiff no longer
had Article III standing to assert its original claim. Id., at
478–479. But instead of simply ordering that the case be
dismissed, the Court remanded to give the plaintiff the op-
portunity to assert a different claim and, if necessary, to
amend the complaint or “develop the record” to show it had
standing to pursue this new claim. Id., at 482.
The situation here is entirely different. It is not disputed
that petitioners have standing to contest the City's restric-
tions on trips to out-of-city ranges and competitions, and as
a result of those restrictions, petitioners have suffered and
will continue to suffer injury that is concrete, traceable to
actions taken by the City, and remediable by a court. See
Spokeo, Inc. v. Robins, 578 U. S. 330 (2016). They are not
asserting a new claim. Their original claim—that they have
the right under the Second Amendment to unrestricted ac-

364 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
cess to out-of-city ranges and competitions—is unchanged,
and
this claim does not require an amendment of the com-
plaint or any supplementation of the record to support their
allegations of injury.
For these reasons, there is no justifcation for holding that
this case is moot.
IV
A
Having shown that this case is not moot, I proceed to the
merits of petitioners' claim that the City ordinance violated
the Second Amendment. This is not a close question. The
answer follows directly from Heller.
In Heller, we held that a District of Columbia rule that
effectively prevented a law-abiding citizen from keeping a
handgun in the home for purposes of self-defense constituted
a core violation of the Second Amendment. 554 U. S., at
635. We based this decision on the scope of the right to
keep and bear arms as it was understood at the time of the
adoption of the Second Amendment. Id., at 577–605, 628–
629. We recognized that history supported the constitution-
ality of some laws limiting the right to possess a frearm,
such as laws banning frearms from certain sensitive loca-
tions and prohibiting possession by felons and other danger-
ous individuals. See id., at 626–627; see also McDonald, 561
U. S., at 787; id., at 904 (Stevens, J., dissenting). But history
provided no support for laws like the District's. See 554
U. S., at 629–634.
For a similar reason, 38 N. Y. C. R. R. § 5–23 also violated
the Second Amendment. We deal here with the same core
Second Amendment right, the right to keep a handgun in the
home for self-defense. As the Second Circuit “assume[d],”
a necessary concomitant of this right is the right to take a
gun outside the home for certain purposes. 883 F. 3d, at 58–
59. One of these is to take a gun for maintenance or repair,
which City law allows. See § 5–22(a)(16). Another is to

Cite
as: 590 U. S. 336 (2020)
365
Alito, J., dissenting
take a gun outside the home in order to transfer ownership
lawfu
lly, which the City also allows. § 5–26( j). And still
another is to take a gun to a range in order to gain and
maintain the skill necessary to use it responsibly. As we
said in Heller, “ `to bear arms implies something more than
the mere keeping [of arms]; it implies the learning to handle
and use them in a way that makes those who keep them
ready for their effcient use.' ” 554 U. S., at 617–618 (quoting
T. Cooley, Constitutional Law 271 (1880)); see also Luis v.
United States, 578 U. S. 5, 26 (2016) (Thomas, J., concurring
in judgment) (“The right to keep and bear arms . . . `implies
a corresponding right . . . to acquire and maintain profciency
in their use' ”); Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011)
(“[T]he core right wouldn't mean much without the training
and practice that make it effective”).
It is true that a lawful gun owner can sometimes practice
at a range using a gun that is owned by and rented at the
range. But the same model gun that the person owns may
not be available at a range, and in any event each individual
gun may have its own characteristics. See Brief for Profes-
sors of Second Amendment Law et al. as Amici Curiae 10–
12; see also App. 51, 56, 59 (referencing differences across
ranges and shooting competitions). Once it is recognized
that the right at issue is a concomitant of the same right
recognized in Heller, it became incumbent on the City to
justify the restrictions its rule imposes, but the City has not
done so. It points to no evidence of laws in force around the
time of the adoption of the Second Amendment that pre-
vented gun owners from practicing outside city limits. The
City argues that municipalities restricted the places within
their jurisdiction where a gun could be fred, Brief for Re-
spondents 18, and it observes that the Second Amendment
surely does not mean that a New York City resident with a
premises license can practice in Central Park or Times
Square, id., at 21. That is certainly true, but that is not the

366 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
question. Petitioners do not claim the right to fre weapons
i
n public places within the City. Instead, they claim they
have a right to practice at ranges and competitions outside
the City, and neither the City, the courts below, nor any of
the many amici supporting the City have shown that munici-
palities during the founding era prevented gun owners from
taking their guns outside city limits for practice.
B
If history is not suffcient to show that the New York City
ordinance is unconstitutional, any doubt is dispelled by the
weakness of the City's showing that its travel restriction
signifcantly promoted public safety. Although the courts
below claimed to apply heightened scrutiny, there was noth-
ing heightened about what they did.
As noted, the City relied entirely on the declaration of In-
spector Lunetta, but this declaration provides little support.
See supra, at 348–349. Some of what Inspector Lunetta as-
serted was simply not relevant to the justifcation for draw-
ing a distinction between trips to a range in the City and
trips to a range in a neighboring jurisdiction. For example,
he stated that persons holding premises licenses “do not al-
ways transport their frearms in a locked box carrying am-
munition separately, as required by NYPD rules,” but the
issue in this case does not concern the storage of a gun on
the way to a range. App. 77–78. Similarly, he declared that
“[p]remises license holders have not demonstrated proper
cause to carry a concealed frearm in public,” id., at 78, but
the question before us is not whether petitioners have the
right to do what they could if they had carry licenses.
Other statements actually undermine the City's public
safety rationale. Thus, the fact that prosecutors typically
do not bring even misdemeanor charges against licensees
who carry a weapon in violation of the limitations of their
licenses, ibid., does not suggest that the City regards viola-
tions as presenting a particularly signifcant threat to pub-
lic safety.

Cite
as: 590 U. S. 336 (2020)
367
Alito, J., dissenting
When all that is irrelevant is brushed aside, what remains
are
the three arguments noted earlier. First, Inspector Lu-
netta asserted that the travel restrictions discouraged licens-
ees from taking their guns outside the home, but this is a
strange argument for several reasons. It would make sense
only if it is less convenient or more expensive to practice at
a range in the City, but that contradicts the City's argument
that the seven ranges in the City provide ample opportunity
for practice. And discouraging trips to a range contradicts
the City's own rule recommending that licensees practice.
Once it is recognized that a reasonable opportunity to prac-
tice is part of the very right recognized in Heller, what this
justifcation amounts to is a repudiation of part of what we
held in that decision.
Second, Inspector Lunetta claimed that prohibiting trips
to out-of-city ranges helps prevent a person who is taking a
gun to a range from using it in a ft of rage after an auto
accident or some other altercation that occurs along the way.
And to bolster this argument, Inspector Lunetta asserted
that persons who have met the City's demanding require-
ments for obtaining a premises license are just as likely as
anyone else to use their guns in a ft of rage. App. 77. If
that is so, it does not refect well on the City's intensive vet-
ting scheme, see supra, at 343–345, and in any event, the
assertion is dubious on its face.
More to the point, this argument does not explain why a
person headed for a range outside the City is any more likely
to engage in such conduct than a person whose destination
is a range in the City. There might be something to the
argument if ranges in the City were closer than those just
outside its borders, but the City never attempted to show
that. The courts below were incurious about the validity of
Inspector Lunetta's assertion, and given the location of the
City's seven ranges, the assertion is more than dubious.
12
12
Two of the seven City ranges (28%) were located in Staten Island
(home to under 6% of the City's residents), and the trip there from the
other boroughs is not quick. Another range (the only one open to the

368 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
Inspector Lunetta's fnal justifcation for the travel restric-
ti
ons was only marginally stronger. It goes like this. Sup-
pose that a patrol offcer stops a premises licensee and fnds
that this individual is carrying a gun, and suppose that the
licensee says he is taking the gun to a range to practice or
is returning from a range. If the range in question is one
in the City, the offcer will be better able to check the story
than if the range is outside the offcer's jurisdiction. App.
79–80.
How strong is this argument? The City presumably has
access to records of cases in which licensees were cited for
unauthorized possession of guns outside the home, and it
failed to provide any evidence that holders of target licenses
had used their right to practice at out-of-city ranges as a
pretext. And it is dubious that it would be much harder for
an offcer to check whether a licensee was really headed for
an out-of-city range as opposed to one in the City. If a li-
censee claims to be headed for a range in the City, the offcer
can check whether the range is open and whether the indi-
vidual appears to be on a route that plausibly leads to that
range. But how much more diffcult would it be to do the
same thing if the range is in one of the counties that border
New York City or across the Hudson River in New Jersey?
A phone call would be enough to determine the range's oper-
ating hours, and the route would still be easy to determine:
There are only a few bridges and tunnels to New Jersey and
just a few main thoroughfares to the neighboring New York
counties. A court conducting any form of serious scrutiny
would have demanded that the City provide some substanti-
ation for this claim, but nothing like that was provided or
demanded.
public) was located in the north Bronx. See Brief for Appellants in No.
15–638, p. 32 (CA2) (explaining that, for plaintiff Colantone, “traveling
from his home in Staten Island to the authorized range Olinville Arms in
the Bronx [involves] a far longer drive” than to a shooting club in New
Jersey).

Cite
as: 590 U. S. 336 (2020)
369
Alito, J., dissenting
Would the situation be much different if the individual
clai
med to be headed home from a range? Once again, it
would not be diffcult for the offcer to check whether the
range was or recently had been open. And it is not at all
apparent that determining whether a licensee was on a route
to his or her residence would be any harder if the range
at which the licensee claimed to have practiced was outside
the City.
Inspector Lunetta's declaration stated that ranges in the
City are required to keep a record of everyone who practices
there, and therefore if a person claims to be coming from a
city range, the offcer could easily check that story. But the
declaration does not state that ranges in nearby jurisdictions
do not keep similar records.
13
It should have been easy
enough for the City to check, and a court engaged in any
serious form of scrutiny would have questioned the absence
of evidence, but no substantiation was provided or de-
manded below.
In sum, the City's travel restriction burdened the very
right recognized in Heller. History provides no support for
a restriction of this type. The City's public safety argu-
ments were weak on their face, were not substantiated in
13
Inspector Lunetta also expressed concern that offcers in other juris-
dictions might detect and report fewer license violations. App. 80. But
Inspector Lunetta did not support this prediction, and his declaration
gives reason to doubt whether a decrease in referrals will actually occur.
Lunetta explains that the NYPD License Division already receives “re-
ports from [the New York State Division of Criminal Justice System] re-
garding all arrests made within the State of New York for which an ar-
restee is fngerprinted.” Id., at 86. But “[n]o formal report is forwarded
to the License Division for summonses and other arrests and incidents for
which a detainee is not fngerprinted.” Ibid. “[T]he License Division
may be, but is not always, notifed of an arrest” made by the Federal
Government or authorities in another State. Ibid. By Lunetta's own
account, the NYPD already appears reliant on the State fngerprinting
database to detect violations in other jurisdictions. There is no reason to
expect that database to be any less effective today in alerting the License
Division to potential violations than it was under the old ordinance.

370 NEW
YORK STATE RIFLE & PISTOL ASSN., INC. v.
CITY OF NEW YORK
Alito, J., dissenting
any way, and were accepted below with no serious probing.
And
once we granted review in this case, the City's public
safety concerns evaporated.
We are told that the mode of review in this case is repre-
sentative of the way Heller has been treated in the lower
courts. If that is true, there is cause for concern.
***
This case is not moot. The City violated petitioners' Sec-
ond Amendment right, and we should so hold. I would re-
verse the judgment of the Court of Appeals and remand the
case to the District Court to provide appropriate relief. I
therefore respectfully dissent.

OCTOBER
TERM, 2019
371
Syllabus
UNITED STATES v. SINENENG-SMITH
certiorari
to the united states court of appeals for
the ninth circuit
No. 19–67. Argued February 25, 2020—Decided May 7, 2020
Respondent Evelyn Sineneng-Smith operated an immigration consulting
firm in San Jose, California. She assisted clients working without
authorization i n the United St ates to fi le applications for a labor-
certifcation program that once provided a path for aliens to adjust to
lawful permanent resident status. Sineneng-Smith knew that her cli-
ents could not meet the long-passed statutory application-fling deadline,
but she nonetheless charged each client over $6,000, netting more than
$3.3 million.
Sineneng-Smith was indicted for multiple violations of 8 U. S. C.
§ 1324(a)(1)(A)(iv) and (B)(i). Those provisions make it a federal felony
to “encourag[e] or induc[e] an alien to come to, enter, or reside in the
United States, knowing or in reckless disregard of the fact that such
comi ng to, entry, or residence is or w i l l be i n v i olati on of law, ”
§ 1324(a)(1)(A)(iv), and impose an enhanced penalty if the crime is “done
for the purpose of commercial advantage or private fnancial gain,”
§ 1324(a)(1)(B)(i). In the District Court, she urged that the provisions
did not cover her conduct, and if they did, they violated the Petition and
Free Speech Clauses of the First Amendment as applied. The District
Court rejected her arguments and she was convicted, as relevant here,
on two counts under § 1324(a)(1)(A)(iv) and (B)(i).
Sineneng-Smith essentially repeated the same arguments on appeal
to the Ninth Circuit. Again she asserted a right under the First
Amendment to fle administrative applications on her clients' behalf, and
she argued that the statute could not constitutionally be applied to her
conduct. Instead of adjudicating the case presented by the parties,
however, the court named three amici and invited them to brief and
argue issues framed by the panel, including a question never raised by
Sineneng-Smith: Whether the statute is overbroad under the First
Amendment. In accord with the amici's arguments, the Ninth Circuit
held that § 1324(a)(1)(A)(iv) is unconstitutionally overbroad.
Held: The Ninth Circuit panel's drastic departure from the principle of
party presentation constituted an abuse of discretion.
The Nation's adversarial adjudication system follows the principle of
party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “[I]n
both civil and criminal cases, . . . we rely on the parties to frame the

372 UNITED
STATES v. SINENENG-SMITH
Syllabus
issues for decision and assign to courts the role of neutral arbiter of
matters
the parties present.” Ibid.
That principle forecloses the controlling role the Ninth Circuit took
on in this case. No extraordinary circumstances justifed the panel's
takeover of the appeal. Sineneng-Smith, represented by competent
counsel, had raised a vagueness argument and First Amendment argu-
ments homing in on her own conduct, not that of others. Electing not
to address the party-presented controversy, the panel projected that
§ 1324(a)(1)(A)(iv) might cover a wide swath of protected speech, includ-
i ng abstrac t advocacy and lega l adv ice. It did so even though
Sineneng-Smith's counsel had presented a contrary theory of the case in
her briefs and before the District Court. A court is not hidebound by
counsel's precise arguments, but the Ninth Circuit's radical transforma-
tion of this case goes well beyond the pale. On remand, the case is
to be reconsidered shorn of the overbreadth inquiry interjected by the
appellate panel and bearing a fair resemblance to the case shaped by
the parties. Pp. 375–380.
910 F. 3d 461, vacated and remanded.
Ginsburg, J., delivered the opinion for a unanimous Court. Thomas,
J., fled a concurring opinion, post, p. 382.
Eric J. Feigin argued the cause for the United States.
With him on the briefs were Solicitor General Francisco,
Assistant Attorney General Benczkowski, Matthew Guar-
nieri, and Scott A. C. Meisler.
Mark C. Fleming argued the cause for respondent. With
him on the brief were Eric L. Hawkins, Thomas G. Sprank-
ling, Alan E. Schoenfeld, Emily J. Barnet, and Beth C.
Neitzel.*
*Lawrence J. Joseph and Christopher J. Hajec fled a brief for the Immi-
gration Law Reform Institute as amicus curiae urging reversal.
Briefs of amici curiae urging affrmation were fled for the City and
County of San Francisco et al. by Dennis J. Herrera, Aileen M. McGrath,
Erin Kuka, and Mark A. Flessner; for Amnesty International by Matthew
S. Hellman, David A. Strauss, and Sarah M. Konsky; for Asian Ameri-
cans Advancing Justice | AA JC et al. by Emily T. Kuwahara, Chiemi D.
Suzuki, Harry P. Cohen, and Niyati Shah; for the Cato Institute by Ilya
Shapiro; for the Electronic Frontier Foundation et al. by David Greene;
for Immigration Representatives et al. by William C. Perdue, Allon
Kedem, and Sirine Shebaya; for the National Association of Criminal De-

Cite
as: 590 U. S. 371 (2020)
373
Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
Th
is case concerns 8 U. S. C. § 1324, which makes it a fed-
eral felony to “encourag[e] or induc[e] an alien to come to,
enter, or reside in the United States, knowing or in reckless
disregard of the fact that such coming to, entry, or residence
is or will be in violation of law.” § 1324(a)(1)(A)(iv). The
crime carries an enhanced penalty if “done for the pur-
pose of commercial advantage or private fnancial gain.”
§ 1324(a)(1)(B)(i).
1
Respondent Evelyn Sineneng-Smith operated an immigra-
tion consulting frm in San Jose, California. She was in-
dicted for multiple violations of § 1324(a)(1)(A)(iv) and (B)(i).
Her clients, most of them from the Philippines, worked with-
out authorization in the home health care industry in the
United States. Between 2001 and 2008, Sineneng-Smith as-
sisted her clients in applying for a “labor certifcation” that
once allowed certain aliens to adjust their status to that of
lawful permanent resident permitted to live and work in the
United States. § 1255(i)(1)(B)(ii).
There was a hindrance to the effcacy of Sineneng-Smith's
advice and assistance. To qualify for the labor-certifcation
dispensation she promoted to her clients, an alien had to
be in the United States on December 21, 2000, and apply
for cer tificati on before Apr i l 30, 2001. § 1255( i)(1)(C).
Si neneng-Smith knew her cl ients did not meet the
application-fling deadline; hence, their applications could not
fense Lawyers et al. by Elliott Schulder and Stephen R. Sady; for Reli-
gious Organizations by Anton Metlitsky and Jeremy Girton; and for The
Rutherford Institute et al. by Erin Glenn Busby, Lisa R. Eskow, Michael
F. Sturley, John W. Whitehead, David D. Cole, Esha Bhandari, Cecillia
D. Wang, and Nicole G. Berner.
A brief of amicus curiae was fled for Eugene Volokh by Mr. Volokh,
pro se.
1
For violations of 8 U. S. C. § 1324(a)(1)(A)(iv), the prison term is “not
more than 5 years,” § 1324(a)(1)(B)(ii); if “the offense was done for . . .
private fnancial gain,” the prison term is “not more than 10 years,”
§ 1324(a)(1)(B)(i).

374 UNITED
STATES v. SINENENG-SMITH
Opinion of the Court
put them on a path to lawful residence.
2
N
evertheless, she
charged each client $5,900 to fle an application with the De-
partment of Labor and another $900 to fle with the U. S.
Citizenship and Immigration Services. For her services in
this regard, she collected more than $3.3 million from her
unwitting clients.
In the District Court, Sineneng-Smith urged unsuccess-
fully, inter alia, that the above-cited provisions, properly
construed, did not cover her conduct, and if they did, they
violated the Petition and Free Speech Clauses of the First
Amendment as applied. See Motion to Dismiss in No. 10–
cr–414 (ND Cal.), pp. 7–13, 20–25; Motion for Judgt. of Ac-
quittal in No. 10–cr–414 (ND Cal.), pp. 14–19, 20–25. She
was convicted on two counts under § 1324(a)(1)(A)(iv) and
(B)(i), and on other counts (fling false tax returns and mail
fraud) she does not now contest. Throughout the District
Court proceedings and on appeal, she was represented by
competent counsel.
On appeal from the § 1324 convictions to the Ninth Circuit,
both on brief and at oral argument, Sineneng-Smith essen-
tially repeated the arguments she earlier presented to the
District Court. See Brief for Appellant in No. 15–10614
(CA9), pp. 11–28. The case was then moved by the appeals
panel onto a different track. Instead of adjudicating the
case presented by the parties, the appeals court named three
amici and invited them to brief and argue issues framed by
the panel, including a question Sineneng-Smith herself never
raised earlier: “Whether the statute of conviction is over-
broad . . . under the First Amendment.” App. 122–124. In
2
Sineneng-Smith argued that labor-certifcation applications were often
approved despite expiration of the statutory dispensation, and that an ap-
proved application, when submitted as part of a petition for adjustment
of status, would place her clients in line should Congress reactivate the
dispensation. See Motion for Judgt. of Acquittal in No. 10–cr–414 (ND
Cal.), p. 16.

Cite
as: 590 U. S. 371 (2020)
375
Opinion of the Court
the ensuing do over of the appeal, counsel for the parties
were
assigned a secondary role. The Ninth Circuit ulti-
mately concluded, in accord with the invited amici's ar-
guments, that § 1324(a)(1)(A)(iv) is unconstitutionally over-
broad. 910 F. 3d 461, 485 (2018). The Gover nment
petitioned for our review because the judgment of the Court
of Appeals invalidated a federal statute. Pet. for Cert. 24.
We granted the petition. 588 U. S. 948 (2019).
As developed more completely hereinafter, we now hold
that the appeals panel departed so drastically from the prin-
ciple of party presentation as to constitute an abuse of dis-
cretion. We therefore vacate the Ninth Circuit's judgment
and remand the case for an adjudication of the appeal at-
tuned to the case shaped by the parties rather than the case
designed by the appeals panel.
I
In our adversarial system of adjudication, we follow the
principle of party presentation. As this Court stated in
Greenlaw v. United States, 554 U. S. 237 (2008), “in both civil
and criminal cases, in the frst instance and on appeal . . . ,
we rely on the parties to frame the issues for decision and
assign to courts the role of neutral arbiter of matters the
parties present.” Id., at 243. In criminal cases, departures
from the party presentation principle have usually occurred
“to protect a pro se litigant's rights.” Id., at 244; see, e. g.,
Castro v. United States, 540 U. S. 375, 381–383 (2003) (affrm-
ing courts' authority to recast pro se litigants' motions to
“avoid an unnecessary dismissal” or “inappropriately strin-
gent application of formal labeling requirements, or to create
a better correspondence between the substance of a pro se
motion's claim and its underlying legal basis” (citation omit-
ted)). But as a general rule, our system “is designed around
the premise that [parties represented by competent counsel]
know what is best for them, and are responsible for advanc-

376 UNITED
STATES v. SINENENG-SMITH
Opinion of the Court
ing the facts and argument entitling them to relief.” Id.,
at
386 (Scalia, J., concurring in part and concurring in
judgment).
3
In short: “[C]ourts are essentially passive instruments of
government.” United States v. Samuels, 808 F. 2d 1298,
1301 (CA8 1987) (Arnold, J., concurring in denial of reh'g en
banc). They “do not, or should not, sally forth each day
looking for wrongs to right. [They] wait for cases to come
to [them], and when [cases arise, courts] normally decide only
questions presented by the parties.” Ibid.
The party presentation principle is supple, not ironclad.
There are no doubt circumstances in which a modest initiat-
ing role for a court is appropriate. See, e. g., Day v. McDon-
ough, 547 U. S. 198, 202 (2006) (federal court had “authority,
on its own initiative,” to correct a party's “evident miscalcu-
lation of the elapsed time under a statute [of limitations]”
absent “intelligent waiver”).
4
But this case scarcely fts
that bill. To explain why that is so, we turn frst to the
proceedings in the District Court.
In July 2010, a grand jury returned a multicount indict-
ment against Sineneng-Smith, including three counts of vio-
lating § 1324, three counts of mail fraud in violation of
18 U. S. C. § 1341, and two counts of willfully subscribing
to a false tax return in violation of 26 U. S. C. § 7206(1).
Sineneng-Smith pleaded guilty to the tax-fraud counts, App.
to Pet. for Cert. 78a–79a, and did not pursue on appeal the
two mail-fraud counts on which she was ultimately convicted.
3
See Kaplan, Civil Procedure—Refections on the Comparison of Sys-
tems, 9 Buffalo L. Rev. 409, 431–432 (1960) (U. S. system “exploits the
free-wheeling energies of counsel and places them in adversary confronta-
tion before a detached judge”; “German system puts its trust in a judge
of paternalistic bent acting in cooperation with counsel of somewhat muted
adversary zeal”).
4
In an addendum to this opinion, we list cases in which this Court has
called for supplemental briefng or appointed amicus curiae in recent
years. None of them bear any resemblance to the redirection ordered by
the Ninth Circuit panel in this case.

Cite
as: 590 U. S. 371 (2020)
377
Opinion of the Court
We therefore concentrate this description on her defenses
agai
nst the § 1324 charges.
Before trial, Sineneng-Smith moved to dismiss the § 1324
counts. Motion to Dismiss in No. 10–cr–414 (ND Cal.).
She asserted frst that the conduct with which she was
charged—adv isi ng and assisti ng a l iens about labor
certifcations—is not proscribed by § 1324(a)(1)(A)(iv) and
(B)(i). Being hired to fle lawful applications on behalf of
aliens already residing in the United States, she maintained,
did not “encourage” or “induce” them to remain in this coun-
try. Id., at 7–13. Next, she urged, alternatively, that clause
(iv) is unconstitutionally vague and therefore did not provide
fair notice that her conduct was prohibited, id., at 13–18, or
should rank as a content-based restraint on her speech, id.,
at 22–24. She further asserted that she has a right safe-
guarded to her by the Petition and Free Speech Clauses of
the First Amendment to fle applications on her clients' be-
half. Id., at 20–25. Nowhere did she so much as hint that
the statute is infrm, not because her own conduct is pro-
tected, but because it trenches on the First Amendment shel-
tered expression of others.
The District Court denied the motion to dismiss, holding
that Sineneng-Smith could “encourag[e]” noncitizens to re-
main in the country, within the meaning of § 1324(a)(1)(A)(iv),
“[b]y suggesting to [them] that the applications she would
make on their behalf, in exchange for their payments, would
allow them to eventually obtain legal permanent residency
in the United States.” App. to Pet. for Cert. 73a. The
court also rejected Sineneng-Smith's constitutional argu-
ments, reasoning that she was prosecuted, not for fling cli-
ents' applications, but for falsely representing to noncitizens
that her efforts, for which she collected sizable fees, would
enable them to gain lawful status. Id., at 75a.
After a 12-day trial, the jury found Sineneng-Smith guilty
on the three § 1324 counts charged in the indictment, along
with the three mail-fraud counts. App. 118–121. Sineneng-

378 UNITED
STATES v. SINENENG-SMITH
Opinion of the Court
Smith then moved for a judgment of acquittal. She re-
newed,
“almost verbatim,” the arguments made in her mo-
tion to dismiss, App. to Pet. for Cert. 65a, and the District
Court rejected those arguments “[f]or the same reasons as
the court expressed in its order denying Sineneng-Smith's
motion to dismiss,” ibid. She simultaneously urged that the
evidence did not support the verdicts. Motion for Judgt. of
Acquittal in No. 10–cr–414 (ND Cal.), at 1–14. The District
Court found the evidence suffcient as to two of the three
§ 1324 counts and two of the three mail-fraud counts. App.
to Pet. for Cert. 67a.
5
Sineneng-Smith's appeal to the Ninth Circuit from the Dis-
trict Court's § 1324 convictions commenced unremarkably.
On brief and at oral argument, she reasserted the self-
regarding arguments twice rehearsed, initially in her motion
to dismiss, and later in her motion for acquittal. Brief for
Appellant in No. 15–10614 (CA9), at 9–27, 35–41; Recording
of Oral Arg. (Apr. 18, 2017), at 37:00–39:40; see supra, at 377.
With the appeal poised for decision based upon the parties'
presentations, the appeals panel intervened. It ordered fur-
ther briefng, App. 122–124, but not from the parties. In-
stead, it named three organizations—“the Federal Defender
Organizations of the Ninth Circuit (as a group)[,] the Immi-
grant Defense Project[,] and the National Immigration Proj-
ect of the National Lawyers Guild”—and invited them to fle
amicus briefs on three issues:
“1. Whether the statute of conviction is overbroad or
likely overbroad under the First Amendment, and if so,
whether any permissible limiting construction would
cure the First Amendment problem?
“2. Whether the statute of conviction is void for
vagueness or likely void for vagueness, either under the
5
The court sentenced Sineneng-Smith to 18 months on each of the re-
maining counts; three years of supervised release on the § 1324 and mail-
fraud counts; and one year of supervised release on the fling of false tax
returns count, all to run concurrently. She was also ordered to pay
$43,550 in restitution, a $15,000 fne, and a $600 special assessment.

Cite
as: 590 U. S. 371 (2020)
379
Opinion of the Court
First Amendment or the Fifth Amendment, and if so,
whether
any permissible limiting construction would
cure the constitutional vagueness problem?
“3. Whether the statute of conviction contains an im-
plicit mens rea element which the Court should enunci-
ate. If so: (a) what should that mens rea element be;
and (b) would such a mens rea element cure any serious
constitutional problems the Court might deter mine
existed?” Ibid.
Counsel for the parties were permitted, but “not re-
quired,” to fle supplemental briefs “limited to responding
to any and all amicus/amici briefs.” Id., at 123 (emphasis
added). Invited amici and amici not specifcally invited to
fle were free to “brief such further issues as they, respec-
tively, believe the law and the record calls for.” Ibid. The
panel gave invited amici 20 minutes for argument, and allo-
cated only 10 minutes to Sineneng-Smith's counsel. Reargu-
ment Order in No. 15–10614 (CA9), Doc. No. 92. Of the
three specifed areas of inquiry, the panel reached only the
frst, holding that § 1324(a)(1)(A)(iv) was facially overbroad
under the First Amendment, 910 F. 3d, at 483–485, and was
not susceptible to a permissible limiting construction, id., at
472, 479.
True, in the redone appeal, Sineneng-Smith's counsel
adopted without elaboration counsel for amici's overbreadth
arg uments. See Supplement a l Br ief for Appel lant i n
No. 15–10614 (CA9), p. 1. How could she do otherwise?
Understandably, she rode with an argument suggested by
the panel. In the panel's adjudication, her own arguments,
differently directed, fell by the wayside, for they did not
mesh with the panel's overbreadth theory of the case.
II
No extraordinary circumstances justifed the panel's take-
over of the appeal. Sineneng-Smith herself had raised a
vagueness argument and First Amendment arguments hom-
ing in on her own conduct, not that of others. Electing not

380 UNITED
STATES v. SINENENG-SMITH
Addendum to opinion of the Court
to address the party-presented controversy, the panel pro-
jec
ted that § 1324(a)(1)(A)(iv) might cover a wide swath of
protected speech, including political advocacy, legal advice,
even a grandmother's plea to her alien grandchild to remain
in the United States. 910 F. 3d, at 483–484.
6
Nevermind
that Sineneng-Smith's counsel had presented a contrary the-
ory of the case in the District Court, and that this Court has
repeatedly warned that “[i]nvalidation for [First Amend-
ment] overbreadth is `strong medicine' that is not to be `casu-
ally employed.' ” United States v. Williams, 553 U. S. 285,
293 (2008) (quoting Los Angeles Police Dept. v. United Re-
porting Publishing Corp., 528 U. S. 32, 39 (1999)).
As earlier observed, see supra, at 376, a court is not hide-
bound by the precise arguments of counsel, but the Ninth
Circuit's radical transformation of this case goes well beyond
the pale.
***
For the reasons stated, we vacate the Ninth Circuit's judg-
ment and remand the case for reconsideration shorn of the
overbreadth inquiry interjected by the appellate panel and
bearing a fair resemblance to the case shaped by the parties.
It is so ordered.
Addendum of cases, 2015–2020, in which this Court called for
supplemental briefng or appointed
amicus curiae
This Court has sought supplemental briefng: to determine
whether a case presented a controversy suitable for the
6
The Solicitor General maintained that the statute does not reach pro-
tected speech. Brief for United States 32. In the Government's view,
§ 1324(a)(1)(A)(iv) should be construed to prohibit only speech facilitating
or soliciting illegal activity, thus falling within the exception to the First
Amendment for speech integral to criminal conduct. Id., at 22–26, 31
(citing United States v. Williams, 553 U. S. 285, 298 (2008)).

Cite
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381
Addendum to opinion of the Court
Court's review, Trump v. Mazars USA, LLP, 590 U. S. 921
(
ordering briefng on application of political question doctrine
and related justiciability principles); Frank v. Gaos, 586
U. S. 995 (2018) (ordering briefng on Article III standing);
Wittman v. Personhuballah, 576 U. S. 1093 (2015) (same);
Docket Entry in Gloucester County School Bd. v. G. G., O. T.
2016, No. 16–273 (Feb. 23, 2017) (ordering briefng on inter-
vening Department of Education and Department of Justice
guidance document); Kingdomware Technolog i es, Inc. v.
United States, 577 U. S. 970 (2015) (ordering briefng on
mootness); to determine whether the case could be resolved
on a basis narrower than the question presented, Zubik v.
Burwell, 578 U. S. 901 (2016) (ordering briefng on whether
the plaintiffs could obtain relief without entirely invalidating
challenged federal regulations); and to clarify an issue or ar-
gument the parties raised, Google LLC v. Oracle America,
Inc., 590 U. S. 928 (ordering further briefng on the parties'
dispute over the standard of review applicable to the ques-
tion presented); Babb v. Wilkie, 589 U. S. 1164 (2020) (order-
ing briefng on an assertion counsel made for the frst time
at oral argument about alternative remedies available to the
plaintiff ); Sharp v. Murphy, reported sub nom. Carpenter
v. Murphy, 586 U. S. 1046 (2018) (ordering briefng on the
implications of the parties' statutory interpretations).
In rare instances, we have ordered briefng on a constitu-
tional issue implicated, but not directly presented, by the
question on which we granted certiorari. See Jennings v.
Rodriguez, 580 U. S. 1040 (2016) (in a case about availability
of a bond hearing under a statute mandating detention of
certain noncitizens, briefng ordered on whether the Consti-
tution requires such a hearing); Johnson v. United States,
574 U. S. 1069 (2015) (in a case involving interpretation of
the Armed Career Criminal Act's residual clause, briefng
ordered on whether that clause is unconstitutionally vague).
But in both cases, the parties had raised the relevant consti-
tutional challenge in lower courts; the question was not in-

382 UNITED
STATES v. SINENENG-SMITH
Thomas, J., concurring
terjected into the case for the frst time by an appellate
for
um. In Jennings, moreover, the parties' statutory argu-
ments turned expressly on the constitutional issue. Jen-
nings v. Rodriguez, 583 U. S. 281 (2018). And in Johnson,
although this Court had interpreted the Act's residual clause
four times in the preceding nine years, there still remained
“pervasive disagreement” in the lower courts about its appli-
cation. Johnson v. United States, 576 U. S. 591, 601 (2015).
We have appointed amicus curiae: to present argument in
support of the judgment below when a prevailing party has
declined to defend the lower court's decision or an aspect of
it, Seila Law LLC v. Consumer Financial Protection Bu-
reau, 589 U. S. 1041 (2019); Holguin-Hernandez v. United
States, 588 U. S. 918 (2019); Culbertson v. Berryhill, 584
U. S. 999 (2018); Lucia v. SEC, 583 U. S. 1099 (2018); Beckles
v. United States, 579 U. S. 965 (2016); Welch v. United States,
577 U. S. 1098 (2016); McLane Co. v. EEOC, 580 U. S. 985
(2016); Green v. Brennan, 576 U. S. 1087 (2015); Reyes Mata
v. Lynch, reported sub nom. Reyes Mata v. Holder, 574 U. S.
1118 (2015); and to address the Court's jurisdiction to decide
the question presented, Montgomery v. Louisiana, 575 U. S.
933 (2015).
Justice Thomas, concurring.
I agree with the Court that the Ninth Circuit abused its
discretion in reaching out to decide whether 8 U. S. C.
§ 1324(a)(1)(A)(iv) is unconstitutionally overbroad. In my
view, however, the Court of Appeals' decision violates far
more than the party presentation rule. The merits of that
decision also highlight the troubling nature of this Court's
overbreadth doctrine. That doctrine provides that “a law
may be invalidated as overbroad if `a substantial number of
its applications are unconstitutional, judged in relation to the
statute's plainly legitimate sweep.' ” United States v. Ste-
vens, 559 U. S. 460, 473 (2010) (quoting Washington State
Grange v. Washington State Republican Party, 552 U. S. 442,

Cite
as: 590 U. S. 371 (2020)
383
Thomas, J., concurring
449, n. 6 (2008)). Although I have previously joined the
Cour
t in applying this doctrine, I have since developed
doubts about its origins and application. It appears that the
overbreadth doctrine lacks any basis in the Constitution's
text, violates the usual standard for facial challenges, and
contravenes traditional standing principles. I would there-
fore consider revisiting this doctrine in an appropriate case.
I
This Court's overbreadth jurisprudence is untethered from
the text and history of the First Amendment. It frst
emerged in the mid-20th century. In Thornhill v. Alabama,
310 U. S. 88 (1940), the Court determined that an antipick-
eting statute was “invalid on its face” due to its “sweeping
proscription of freedom of discussion,” id., at 101–105. The
Court rejected the State's argument that the statute was
constitutional because it was “limited or restricted in its ap-
plication” to proscribable “violence and breaches of the peace
[that] are the concomitants of picketing.” Id., at 105. With-
out considering whether the defendant's actual conduct was
entitled to First Amendment protection, the Court concluded
that the law was unconstitutional because it “d[id] not aim
specifcally at evils within the allowable area of state control
but, on the contrary, swe[pt] within its ambit other activities
that in ordinary circumstances constitute an exercise of free-
dom of speech or of the press.” Id., at 97.
Since then, the Court has invoked this rationale to facially
invalidate a wide range of laws, from statutes enacted by
Congress, see, e. g., Ashcroft v. Free Speech Coalition, 535
U. S. 234 (2002), to measures passed by city offcials, see, e. g.,
Board of Airport Comm'rs of Los Angeles v. Jews for Jesus,
Inc., 482 U. S. 569 (1987). These laws covered a variety of
subjects, from nudity in drive-in movies, Erznoznik v. Jack-
sonville, 422 U. S. 205 (1975), to charitable solicitations,
Schaumburg v. Citizens for Better Environment, 444 U. S.
620 (1980), to depictions of animal cruelty, Stevens, supra, at

384 UNITED
STATES v. SINENENG-SMITH
Thomas, J., concurring
460. And all these laws were considered unconstitutional
not
because they necessarily violated an individual's First
Amendment rights but “because of a judicial prediction or
assumption that the statute's very existence may cause
[some citizens] to refrain from constitutionally protected [ac-
tivity].” Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973)
(emphasis added); see also Erznoznik, supra, at 216.
Notably, this Court has not attempted to ground its void-
for-overbreadth rule in the text or history of the First
Amendment. It did not do so in Thornhill, and it has not
done so since. Rather, the Court has justifed this doctrine
solely by reference to policy considerations and value judg-
ments. See New York v. Ferber, 458 U. S. 747, 768–769
(1982). It has stated that facially invalidating overbroad
statutes is sometimes necessary because “[First Amend-
ment] freedoms are delicate and vulnerable, as well as su-
premely precious in our society,” and thus “need breathing
space to survive.” * NAACP v. Button, 371 U. S. 415, 433
(1963). And, in the context of the freedom of speech, the
Court has justifed the overbreadth doctrine's departure
from traditional principles of adjudication by noting free
speech's “transcendent value to all society, and not merely
*The Court often discusses the doctrine as applying in the context of
“First Amendment rights” more generally. Broadrick v. Oklahoma, 413
U. S. 601, 611–613 (1973); see also NAACP v. Button, 371 U. S. 415, 433
(1963) (discussing “the First Amendment freedoms”). Such arguments
are typically raised in free speech cases, but the Court has occasionally
entertained overbreadth challenges invoking the freedom of the press, see,
e. g., Thornhill v. Alabama, 310 U. S. 88 (1940), and the freedom of associa-
tion, see, e. g., Keyishian v. Board of Regents of Univ. of State of N. Y.,
385 U. S. 589 (1967). Curiously, however, the Court has never applied this
doctrine in the context of the First Amendment's Religion Clauses. In
fact, the Court currently applies a far less protective standard to free
exercise claims, upholding laws that substantially burden religious exer-
cise so long as they are neutral and generally applicable. See Employ-
ment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872
(1990). The Court has never acknowledged, much less explained, this
discrepancy.

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385
Thomas, J., concurring
to those exercising their rights.” Dombrowski v. Pfster,
380
U. S. 479, 486 (1965).
In order to protect this “transcendent” right, ibid., the
Court will deem a statute unconstitutional when, in “the
judgment of this Court[,] the possible harm to society in per-
mitting some unprotected speech to go unpunished is out-
weighed by the possibility that protected speech of others
may be muted and perceived grievances left to fester be-
cause of the possible inhibitory effects of [the] statut[e].”
Broadrick, supra, at 612. In other words, the doctrine is
driven by a judicial determination of what serves the public
good. But there is “no evidence [from the founding] indicat-
[ing] that the First Amendment empowered judges to deter-
mine whether particular restrictions of speech promoted the
general welfare.” Campbell, Natural Rights and the First
Amendment, 127 Yale L. J. 246, 259 (2017). This makes
sense given that the Founders viewed value judgments and
policy considerations to be the work of legislatures, not
unelected judges. See Obergefell v. Hodges, 576 U. S. 644,
709 (2015) (Roberts, C. J., dissenting). Nevertheless, such
judgments appear to be the very foundation upon which this
Court's modern overbreadth doctrine was built.
Perhaps unsurprisingly, the overbreadth doctrine shares a
close relationship with this Court's questionable vagueness
doctrine. See Johnson v. United States, 576 U. S. 591, 611–
623 (2015) (Thomas, J., concurring in judgment). In fact, it
appears that the Court's void-for-overbreadth rule developed
as a result of the vagueness doctrine's application in the
First Amendment context. For example, this Court's deci-
sion in Thornhill, which is recognized as “the fountainhead
of the overbreadth doctrine,” Monaghan, Overbreadth, 1981
S. Ct. Rev. 1, 11, cited a vagueness precedent in support of
its overbreadth analysis. 310 U. S., at 96 (citing Stromberg
v. California, 283 U. S. 359, 367 (1931)). And the decision
expressed concerns regarding the antipicketing statute's
“vague” terms with “no ascertainable meaning ” and their

386 UNITED
STATES v. SINENENG-SMITH
Thomas, J., concurring
resu lti ng potentia l for “discr i mi natory enforcement. ”
Tho
rnhill, supra, at 97–98, 100–101; cf. Chicago v. Morales,
527 U. S. 41, 56 (1999) (opinion of Stevens, J.). As the over-
breadth doc tr i ne has developed, it has “a lmost whol ly
merged” with the vagueness doctrine as applied to “statutes
covering [F]irst [A]mendment activities.” Sargentich, Note,
The First Amendment Overbreadth Doctrine, 83 Harv.
L. Rev. 844, 873 (1970). Given the dubious origins of the
vagueness doctrine, I fnd this shared history “unsettling.”
Johnson, supra, at 621 (opinion of Thomas, J.).
II
In addition to its questionable origins, the overbreadth
doctrine violates the usual standard for facial challenges.
Typically, this Court will deem a statute unconstitutional on
its face only if “no set of circumstances exists under which
the Act would be valid.” United States v. Salerno, 481 U. S.
739, 745 (1987). But the overbreadth doctrine empowers
courts to hold statutes facially unconstitutional even when
they can be validly applied in numerous circumstances, in-
cluding the very case before the court.
By lowering the bar for facial challenges in the First
Amendment context, the overbreadth doctrine exacerbates
the many pitfalls of what is already a “disfavored” method
of adjudication. Washington State Grange, 552 U. S., at 450.
“[U]nder our constitutional system[,] courts are not roving
commissions assigned to pass judgment on the validity of
the Nation's laws.” Broadrick, 413 U. S., at 610–611. But
when a court entertains—or in this case, seeks out—an over-
breadth challenge, it casts aside the “judicial restraint” nec-
essary to avoid “ `premature' ” and “ `unnecessary pronounce-
ment[s] on constituti ona l issues. ' ” Wash ing t o n Sta te
Grange, supra, at 450 (quoting United States v. Raines, 362
U. S. 17, 22 (1960)). This principle of restraint has long
served as a fundamental limit on the scope of judicial power.
See Liverpool, New York & Philadelphia S. S. Co. v. Com-

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as: 590 U. S. 371 (2020)
387
Thomas, J., concurring
missioners of Emigration, 113 U. S. 33, 39 (1885). “[T]here
is
good evidence that courts [in the early Republic] under-
stood judicial review to consist [simply] `of a refusal to give
a statute effect as operative law in resolving a case' ” once
that statute was determined to be unconstitutional. John-
son, supra, at 615 (opinion of Thomas, J.) (quoting Walsh,
Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 756
(2010)). Thus, our “modern practice of strik[ing] down” leg-
islation as facially unconstitutional bears little resemblance
to the practices of 18th- and 19th- century courts. Johnson,
supra, at 615 (opinion of Thomas, J.) (internal quotation
marks omitted); see also Mitchell, The Writ-of-Erasure Fal-
lacy, 104 Va. L. Rev. 933, 936 (2018) (“[F]ederal courts have
no authority to erase a duly enacted law from the statute
books”).
Moreover, by relaxing the standard for facial challenges,
the overbreadth doctrine encourages “speculat[ion]” about
“ `imaginary' cases,” Washington State Grange, supra, at 450
(quoting Raines, supra, at 22), and “summon[s] forth an end-
less stream of fanciful hypotheticals,” United States v. Wil-
liams, 553 U. S. 285, 301 (2008). And, when a court invali-
dates a statute based on its theoretical, illicit applications at
the expense of its real-world, lawful applications, the court
“threaten[s] to short circuit the democratic process by pre-
venting laws embodying the will of the people from being
implemented in a manner consistent with the Constitution.”
Washington State Grange, supra, at 451.
Collaterally, this Court has a tendency to lower the bar for
facial challenges when preferred rights are at stake. See,
e. g., Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833 (1992). This ad hoc approach to constitutional ad-
judication impermissibly expands the judicial power and “re-
duc[es] constitutional law to policy-driven value judgments.”
Whole Woman's Health v. Hellerstedt, 579 U. S. 582, 643
(2016) (Thomas, J., dissenting). We ought to “abid[e] by one
set of rules to adjudicate constitutional rights,” ibid., partic-

388 UNITED
STATES v. SINENENG-SMITH
Thomas, J., concurring
ularly when it comes to the disfavored practice of facial
cha
llenges.
III
Finally, by allowing individuals to challenge a statute
based on a third party's constitutional rights, the over-
breadth doctrine is at odds with traditional standing princi-
ples. This Court has long adhered to the rule that “a liti-
gant must assert his or her own legal rights and interests,
and cannot rest a claim to relief on the legal rights or inter-
ests of third parties.” Powers v. Ohio, 499 U. S. 400, 410
(1991); see also Clark v. Kansas City, 176 U. S. 114, 118
(1900); Owings v. Norwood's Lessee, 5 Cranch 344, 348 (1809)
(Marshall, C. J.). The Court has created a “limited” excep-
tion to this rule, allowing third-party standing in certain
cases in which the litigant has “a close relation to the third
party” and there is a substantial “hindrance to the third par-
ty's ability to protect his or her own interests.” Powers,
supra, at 410–411. Litigants raising overbreadth challenges
rarely satisfy either requirement, but the Court nevertheless
allows third-party standing to “avoi[d] making vindication
of freedom of expression await the outcome of protracted
litigation.” Dombrowski, 380 U. S., at 487. As I have pre-
viously explained, this Court “has no business creating
ad hoc exceptions so that others can assert rights that seem
especially important to vindicate.” Whole Woman's Health,
supra, at 643 (Thomas, J., dissenting).
The overbreadth doctrine's disregard for the general rule
against third-party standing is especially problematic in
light of the rule's apparent roots in Article III's case-or-
controversy requirement. Although the modern Court has
characterized the rule as a prudential rather than jurisdic-
tional matter, see Craig v. Boren, 429 U. S. 190, 193 (1976),
it has never provided a substantive justifcation for that as-
sertion. And the Court has admitted that this rule against
third-party standing is “not always clearly distinguished
from the constitutional limitation[s]” on standing, Barrows v.

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389
Thomas, J., concurring
Jackson, 346 U. S. 249, 255 (1953); is “closely related to Ar-
t[icle
] III concerns,” Warth v. Seldin, 422 U. S. 490, 500
(1975); and even is “grounded in Art[icle] III limits on the
jurisdiction of federal courts to actual cases and controver-
sies,” Ferber, 458 U. S., at 767, n. 20.
These statements fnd support in a historical understand-
ing of Article III. To understand the scope of the Consti-
tution's case-or-controversy requirement, “we must `refer
directly to the traditional, fundamental limitations upon the
powers of common-law courts.' ” Spokeo, Inc. v. Robins, 578
U. S. 330, 344 (2016) (Thomas, J., concurring) (quoting Honig
v. Doe, 484 U. S. 305, 340 (1988) (Scalia, J., dissenting)).
“Common-law courts imposed different limitations on a
plaintiff 's right to bring suit depending on the type of right
the plaintiff sought to vindicate.” Spokeo, 578 U. S., at 344
(Thomas, J., concurring). “In a suit for the violation of a
private right, courts historically presumed that the plaintiff
suffered a de facto injury [if] his personal, legal rights [were]
invaded.” Ibid. Personal constitutional rights, such as
those protected under the First Amendment, are “private
rights” in that they “ `belon[g] to individuals, considered as
individuals.' ” Ibid. (quoting 3 W. Blackstone, Commentar-
ies on the Laws of England *2); see also Ferber, supra, at 767
(recognizing “the personal nature of constitutional rights” as
a “cardinal principl[e] of our constitutional order”); Hessick,
Standing, Injury in Fact, and Private Rights, 93 Cornell L.
Rev. 275, 287 (2008) (listing “First Amendment rights” as
examples of private rights provided by the Constitution).
Thus, when a litigant challenges a statute on the grounds
that it has violated his First Amendment rights, he has al-
leged an injury suffcient to establish standing for his claim,
regardless of the attendant damages or other real-world
harms he may or may not have suffered.
Overbreadth doctrine turns this traditional common-law
rule on its head: It allows a litigant without a legal injury
to assert the First Amendment rights of hypothetical third

390 UNITED
STATES v. SINENENG-SMITH
Thomas, J., concurring
parties, so long as he has personally suffered a real-world
i
njury. See Broadrick, 413 U. S., at 612. In other words,
the litigant has no private right of his own that is genuinely
at stake. See Woolhandler & Nelson, Does History Defeat
Standing Doctrine? 102 Mich. L. Rev. 689, 722–723 (2004);
see also Hessick, 93 Cornell L. Rev., at 280–281. At common
law, this sort of “factual harm without a legal injury was
damnum absque injuria and provided no basis for relief.”
Ibid. Courts adhered to the “obvious” and “ancient maxim”
that one's real-world damages alone cannot “lay the founda-
tion of an action . . . if the act complained of does not violate
any of his legal rights.” Parker v. Griswold, 17 Conn. *288,
*302–*303 (1846).
Here, the overbreadth challenge embraced by respondent
on appeal relied entirely on the free speech rights of others—
immigration lawyers, activists, clergy, and even grandmoth-
ers. This is not terribly surprising given that the over-
breadth arguments were developed by amici organizations
that represent some of these third parties, not by respondent
herself. See ante, at 379. Although it appears respondent
lacked standing on appeal to assert the rights of individuals
not before the court, she did have standing to seek relief for
alleged violations of her own constitutional rights, which she
raised before the Ninth Circuit commandeered her appeal.
On remand, the Court of Appeals will be well within
the bounds of its Article III jurisdiction in considering these
narrower arguments.
***
The overbreadth doctrine appears to be the handiwork of
judges, based on the misguided “notion that some constitu-
tional rights demand preferential treatment.” Whole Wom-
an's Health, 579 U. S., at 641 (Thomas, J., dissenting). It
seemingly lacks any basis in the text or history of the First
Amendment, relaxes the traditional standard for facial chal-
lenges, and violates Article III principles regarding judicial
power and standing. In an appropriate case, we should con-
sider revisiting this doctrine.

OCTOBER
TERM, 2019
391
Syllabus
KELLY v. UNITED STATES et al.
certiorari
to the united states court of appeals for
the third circuit
No. 18–1059. Argued January 14, 2020—Decided May 7, 2020
During former New Jersey Governor Chris Christie's 2013 reelection cam-
paign, his Deputy Chief of Staff, Bridget Anne Kelly, avidly courted
Democratic mayors for their endorsements, but Fort Lee's Mayor re-
fused to back the Governor's campaign. Determined to punish the
Mayor, Kelly, Port Authority Deputy Executive Director William Bar-
oni, and another Port Authority offcial, David Wildstein, decided to re-
duce from three to one the number of lanes long reserved at the George
Washington Bridge's toll plaza for Fort Lee's morning commuters. To
disguise their efforts at political retribution, Wildstein devised a cover
story: The lane realignment was for a traffc study. As part of that
cover story, the defendants asked Port Authority traffc engineers to
collect some numbers about the effect of the changes. At the sugges-
tion of a Port Authority manager, they also agreed to pay an extra toll
collector overtime so that Fort Lee's one remaining lane would not be
shut down if the collector on duty needed a break. The lane realign-
ment caused four days of gridlock in Fort Lee, and only ended when the
Port Authority's Executive Director learned of the scheme. Baroni and
Kelly were convicted in federal court of wire fraud, fraud on a federally
funded program or entity (the Port Authority), and conspiracy to com-
mit each of those crimes. The Third Circuit affrmed.
Held: Because the scheme here did not aim to obtain money or property,
Baroni and Kelly could not have violated the federal-program fraud or
wire fraud laws.
The federal wire fraud statute makes it a crime to effect (with the
use of the wires) “any scheme or artifce to defraud, or for obtaining
money or property by means of false or fraudulent pretenses, repre-
sentations, or promises.” 18 U. S. C. § 1343. Similarly, the federal-
program fraud statute bars “obtain[ing] by fraud” the “property” (in-
cluding money) of a federally funded program or entity. § 666(a)(1)(A).
These statutes are “limited in scope to the protection of property
rights,” and do not authorize federal prosecutors to “set[ ] standards of
disclosure and good government for local and state offcials.” McNally
v. United States, 483 U. S. 350, 360. So under either provision, the
Government had to show not only that Baroni and Kelly engaged in
deception, but that an object of their fraud was money or property.
Cleveland v. United States, 531 U. S. 12, 26.

392 KEL
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Syllabus
The Government argues that the scheme had the object of obtaining
the
Port Authority's money or property in two ways. First, the Gov-
ernment claims that Baroni and Kelly sought to commandeer part of
the Bridge itself by taking control of its physical lanes. Second, the
Government asserts that the defendants aimed to deprive the Port Au-
thority of the costs of compensating the traffc engineers and back-up
toll collectors. For different reasons, neither of these theories can sus-
tain the verdicts.
Baroni's and Kelly's realignment of the access lanes was an exercise
of regulatory power—a reallocation of the lanes between different
groups of drivers. This Court has already held that a scheme to alter
such a regulatory choice is not one to take the government's property.
Id., at 23. And while a government's right to its employees' time and
labor is a property interest, the prosecution must also show that it is an
“object of the fraud.” Pasquantino v. United States, 544 U. S. 349, 355.
Here, the time and labor of the Port Authority employees were just
the implementation costs of the defendants' scheme to reallocate the
Bridge's lanes—an incidental (even if foreseen) byproduct of their regu-
latory object. Neither defendant sought to obtain the services that the
employees provided. Pp. 398–404.
909 F. 3d 550, reversed and remanded.
Kagan, J., delivered the opinion for a unanimous Court.
Yaakov M. Roth argued the cause for petitioner. With
him on the briefs were Michael A. Carvin, Anthony J. Dick,
Andrew J. M. Bentz, and Michael D. Critchley.
Michael A. Levy argued the cause for William E. Baroni,
Jr., respondent under this Court's Rule 12.6, in support of
petitioner. With him on the briefs were Christopher M.
Egleson and Matthew J. Letten.
Eric J. Feigin argued the cause for the United States.
With him on the brief were Acting Solicitor General Wall,
Assistant Attorney General Benczkowski, and Colleen E.
Roh Sinzdak.*
*Briefs of amici curiae urging reversal were fled for the National Asso-
ciation of Criminal Defense Lawyers by Joshua L. Dratel; and for Michael
Binday by David W. Shapiro.
Michael Dominic Meuti fled a brief for Sen. Sheldon Whitehouse as
amicus curiae urging affrmance.

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393
Opinion of the Court
Justice Kagan delivered the opinion of the Court.
F
or four days in September 2013, traffc ground to a halt
in Fort Lee, New Jersey. The cause was an unannounced
realignment of 12 toll lanes leading to the George Washing-
ton Bridge, an entryway into Manhattan administered by the
Port Authority of New York and New Jersey. For decades,
three of those access lanes had been reserved during morn-
ing rush hour for commuters coming from the streets
of Fort Lee. But on these four days—with predictable
consequences—only a single lane was set aside. The public
offcials who ordered that change claimed they were reducing
the number of dedicated lanes to conduct a traffc study. In
fact, they did so for a political reason—to punish the Mayor
of Fort Lee for refusing to support the New Jersey Gover-
nor's reelection bid.
Exposure of their behavior led to the criminal convictions
we review here. The Government charged the responsible
offcials under the federal statutes prohibiting wire fraud and
fraud on a federally funded program or entity. See 18
U. S. C. §§ 1343, 666(a)(1)(A). Both those laws target fraud-
ulent schemes for obtaining property. See § 1343 (barring
fraudulent schemes “for obtaining money or property”);
§ 666(a)(1)(A) (making it a crime to “obtain[ ] by fraud . . .
property”). The jury convicted the defendants, and the
lower courts upheld the verdicts.
The question presented is whether the defendants com-
mitted property fraud. The evidence the jury heard no
doubt shows wrongdoing—deception, corruption, abuse of
power. But the federal fraud statutes at issue do not crimi-
nalize all such conduct. Under settled precedent, the off-
cials could violate those laws only if an object of their dishon-
esty was to obtain the Port Authority's money or property.
The Government contends it was, because the offcials sought
both to “commandeer” the Bridge's access lanes and to divert
the wage labor of the Port Authority employees used in
that effort. Tr. of Oral Arg. 58. We disagree. The re-

394 KEL
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Opinion of the Court
alignment of the toll lanes was an exercise of regulatory
power—someth
ing this Court has already held fails to meet
the statutes' property requirement. And the employees'
labor was just the incidental cost of that regulation, rather
than itself an object of the offcials' scheme. We therefore
reverse the convictions.
I
The setting of this case is the George Washington Bridge.
Running between Fort Lee and Manhattan, it is the busiest
motor-vehicle bridge in the world. Twelve lanes with toll-
booths feed onto the Bridge's upper level from the Fort Lee
side. Decades ago, the then-Governor of New Jersey com-
mitted to a set allocation of those lanes for the morning com-
mute. And (save for the four days soon described) his plan
has lasted to this day. Under the arrangement, nine of the
lanes carry traffc coming from nearby highways. The three
remaining lanes, designated by a long line of traffc cones
laid down each morning, serve only cars coming from Fort Lee.
The case's cast of characters are public offcials who
worked at or with the Port Authority and had political ties
to New Jersey's then-Governor Chris Christie. The Port
Authority is a bi-state agency that manages bridges, tunnels,
airports, and other transportation facilities in New York and
New Jersey. At the time relevant here, William Baroni was
its Deputy Executive Director, an appointee of Governor
Christie and the highest ranking New Jersey offcial in the
agency. Together with the Executive Director (a New York
appointee), he oversaw “all aspects of the Port Authority's
business,” including operation of the George Washington
Bridge. App. 21 (indictment). David Wildstein (who be-
came the Government's star witness) functioned as Baroni's
Chief of Staff. And Bridget Anne Kelly was a Deputy Chief
of Staff to Governor Christie with special responsibility for
manag i ng h is relati ons w ith loca l officia ls. She of ten
worked hand-in-hand with Baroni and Wildstein to deploy

Cite
as: 590 U. S. 391 (2020)
395
Opinion of the Court
the Port Authority's resources in ways that would encourage
mayors
and other local fgures to support the Governor.
The fateful lane change arose out of one mayor's resistance
to such blandishments. In 2013, Governor Christie was up
for reelection, and he wanted to notch a large, bipartisan
victory as he ramped up for a presidential campaign. On
his behalf, Kelly avidly courted Democratic mayors for their
endorsements—among them, Mark Sokolich of Fort Lee.
As a result, that town received some valuable benefts from
the Por t Author ity, including an expensive shuttle-bus
service. But that summer, Mayor Sokolich informed Kelly's
offce that he would not back the Governor's campaign. A
frustrated Kelly reached out to Wildstein for ideas on how
to respond. He suggested that getting rid of the dedicated
Fort Lee lanes on the Bridge's toll plaza would cause rush-
hour traffc to back up onto local streets, leading to gridlock
there. Kelly agreed to the idea in an admirably concise
e-mail: “Time for some traffc problems in Fort Lee.” App.
917 (trial exhibit). In a later phone conversation, Kelly con-
frmed to Wildstein that she wanted to “creat[e] a traffc jam
that would punish” Mayor Sokolich and “send him a mes-
sage.” Id., at 254 (Wildstein testimony). And after Wild-
stein relayed those communications, Baroni gave the needed
sign-off.
To complete the scheme, Wildstein then devised “a cover
story”—that the lane change was part of a traffc study, in-
tended to assess whether to retain the dedicated Fort Lee
lanes in the future. Id., at 264. Wildstein, Baroni, and
Kelly all agreed to use that “public policy” justifcation when
speaking with the media, local offcials, and the Port Author-
ity's own employees. Id., at 265. And to give their story
credibility, Wildstein in fact told the Port Authority's engi-
neers to collect “some numbers on how[ ] far back the traffc
was delayed.” Id., at 305. That inquiry bore little resem-
blance to the Port Authority's usual traffc studies. Accord-

396 KEL
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Opinion of the Court
ing to one engineer's trial testimony, the Port Authority
n
ever closes lanes to study traffic patter ns, because
“computer-generated model[ing]” can itself predict the effect
of such actions. Id., at 484 (testimony of Umang Patel); see
id., at 473–474 (similar testimony of Victor Chung). And
the information that the Port Authority's engineers collected
on this singular occasion was mostly “not useful” and “dis-
carded.” Id., at 484–485 (Patel testimony). Nor did Wild-
stein or Baroni show any interest in the data. They never
asked to review what the engineers had found; indeed, they
learned of the results only weeks later, after a journalist fled
a public-records request. So although the engineers spent
valuable time assessing the lane change, their work was to
no practical effect.
Baroni, Wildstein, and Kelly also agreed to incur another
cost—for extra toll collectors—in pursuit of their object.
Wildstein's initial thought was to eliminate all three dedi-
cated lanes by not laying down any traffc cones, thus turning
the whole toll plaza into a free-for-all. But the Port Author-
ity's chief engineer told him that without the cones “there
would be a substantial risk of sideswipe crashes” involving
cars coming into the area from different directions. Id.,
at 284 (Wildstein testimony). So Wildstein went back to
Baroni and Kelly and got their approval to keep one lane
reserved for For t Lee traffic. That soluti on, though,
raised another complication. Ordinarily, if a toll collector
on a Fort Lee lane has to take a break, he closes his
booth, and drivers use one of the other two lanes. Under
the one-lane plan, of course, that would be impossible. So
the Br idge manager told Wi ldstei n that to make the
scheme work, “an extra toll collector” would always have
to be “on call” to relieve the regular collector when he went
on break. Id., at 303. Once again, Wildstein took the news
to Baroni and Kelly. Baroni thought it was “funny,” remark-
ing that “only at the Port Authority would [you] have to pay

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397
Opinion of the Court
a toll collector to just sit there and wait.” Ibid. Still, he
and
Kelly gave the okay.
The plan was now ready, and on September 9 it went into
effect. Without advance notice and on the (traffc-heavy)
frst day of school, Port Authority employees placed traffc
cones two lanes further to the right than usual, restricting
cars from Fort Lee to a single lane. Almost immediately,
the town's streets came to a standstill. According to the
Fort Lee Chief of Police, the traffc rivaled that of 9/11, when
the George Wash ington Br idge had shut down. School
buses stood in place for hours. An ambulance struggled to
reach the victim of a heart attack; police had trouble re-
sponding to a report of a missing child. Mayor Sokolich
tried to reach Baroni, leaving a message that the call was
about an “urgent matter of public safety.” Id., at 323. Yet
Baroni failed to return that call or any other: He had agreed
with Wildstein and Kelly that they should all maintain “radio
silence.” Id., at 270. A text from the Mayor to Baroni
about the locked-in school buses—also unanswered—went
around the horn to Wildstein and Kelly. The last replied:
“Is it wrong that I am smiling?” Id., at 990 (Kelly text mes-
sage). The three merrily kept the lane realignment in place
for another three days. It ended only when the Port Au-
thority's Executive Director found out what had happened
and reversed what he called their “abusive decision.” Id.,
at 963 (e-mail of Patrick Foye).
The fallout from the scheme was swift and severe. Bar-
oni, Kelly, and Wildstein all lost their jobs. More to the
point here, they all ran afoul of federal prosecutors. Wild-
stein pleaded guilty to conspiracy charges and agreed to co-
operate with the Government. Baroni and Kelly went to
trial on charges of wire fraud, fraud on a federally funded
program or entity (the Port Authority), and conspiracy to
commit each of those crimes. The jury found both of them
guilty on all counts. The Court of Appeals for the Third

398 KEL
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Opinion of the Court
Circuit affrmed, rejecting Baroni's and Kelly's claim that the
e
vidence was insuffcient to support their convictions. See
United States v. Baroni, 909 F. 3d 550, 560–579 (2018). We
granted certiorari. 588 U. S. 919 (2019).
II
The Government in this case needed to prove property
fraud. The federal wire fraud statute makes it a crime to
effect (with use of the wires) “any scheme or artifce to de-
fraud, or for obtaining money or property by means of false
or fraudulent pretenses, representations, or promises.” 18
U. S. C. § 1343. Construing that disjunctive language as a
unitary whole, this Court has held that “the money-or-
property requirement of the latter phrase” also limits the
former. McNally v. United States, 483 U. S. 350, 358 (1987).
The w ire fraud st atute thus proh ibits only deceptive
“schemes to deprive [the victim of] money or property.”
Id., at 356. Similarly, the federal-program fraud statute
bars “obtain[ing] by fraud” the “property” (including money)
of a federally funded program or entity like the Port Author-
ity. § 666(a)(1)(A). So under either provision, the Govern-
ment had to show not only that Baroni and Kelly engaged in
deception, but that an “object of the[ir] fraud [was] `prop-
erty.' ” Cleveland v. United States, 531 U. S. 12, 26 (2000).
1
That requirement, this Court has made clear, prevents
these statutes from criminalizing all acts of dishonesty by
state and local offcials. Some decades ago, courts of appeals
of ten constr ued the federa l fraud laws to “proscr ibe[ ]
schemes to defraud citizens of their intangible rights to hon-
est and impartial government.” McNally, 483 U. S., at 355.
This Court declined to go along. The fraud statutes, we
held in McNally, were “limited in scope to the protection of
1
The conspiracy verdicts raise no separate issue. None of the parties
doubts that those convictions stand or fall with the substantive offenses.
If there was property fraud here, there was also conspiracy to commit it.
But if not, not.

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399
Opinion of the Court
property rights.” Id., at 360. They did not authorize fed-
era
l prosecutors to “set[ ] standards of disclosure and good
government for local and state offcials.” Ibid. Congress
responded to that decision by enacting a law barring fraudu-
lent schemes “to deprive another of the intangible right of
honest services”—regardless of whether the scheme sought
to divest the victim of any property. § 1346. But the
vagueness of that language led this Court to adopt “a limit-
ing construction,” confning the statute to schemes involving
bribes or kickbacks. Skilling v. United States, 561 U. S.
358, 405, 410 (2010). We specifcally rejected a proposal to
construe the statute as encompassing “undisclosed self-
dealing by a public offcial,” even when he hid fnancial inter-
ests. Id., at 409. The upshot is that federal fraud law
leaves much public corruption to the States (or their elector-
ates) to rectify. Cf. N. J. Stat. Ann. § 2C:30–2 (West 2016)
(prohibiting the unauthorized exercise of offcial functions).
Save for bribes or kickbacks (not at issue here), a state or
local offcial's fraudulent schemes violate that law only when,
again, they are “for obtaining money or property.” 18
U. S. C. § 1343; see § 666(a)(1)(A) (similar).
The Government acknowledges this much, but thinks Bar-
oni's and Kelly's convictions remain valid. According to the
Government's theory of the case, Baroni and Kelly “used a
lie about a fctional traffc study” to achieve their goal of
reallocating the Bridge's toll lanes. Brief for United States
43. The Government accepts that the lie itself—i. e., that
the lane change was part of a traffc study, rather than politi-
cal payback—could not get the prosecution all the way home.
See id., at 43–44. As the Government recognizes, the deceit
must also have had the “object” of obtaining the Port Au-
thority's money or property. Id., at 44. The scheme met
that requirement, the Government argues, in two ways.
First, the Government claims that Baroni and Kelly sought
to “commandeer[ ]” part of the Bridge itself—to “take con-
trol” of its “physical lanes.” Tr. of Oral Arg. 58–59. Sec-

400 KEL
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Opinion of the Court
ond, the Government asserts that the two defendants aimed
to
deprive the Port Authority of the costs of compensating
the traffc engineers and back-up toll collectors who per-
formed work relating to the lane realignment. On either
theory, the Government insists, Baroni's and Kelly's scheme
targeted “a `species of valuable right [or] interest' that con-
stitutes `property' under the fraud statutes.” Brief for
United States 22 (quoting Pasquantino v. United States, 544
U. S. 349, 356 (2005)).
We cannot agree. As we explain below, the Government
could not have proved—on either of its theories, though for
different reasons—that Baroni's and Kelly's scheme was “di-
rected at the [Port Authority's] property.” Brief for United
States 44. Baroni and Kelly indeed “plotted to reduce [Fort
Lee's] lanes.” Id., at 34. But that realignment was a quint-
essential exercise of regulatory power. And this Court has
already held that a scheme to alter such a regulatory choice
is not one to appropriate the government's property. See
Cleveland, 531 U. S., at 23. By contrast, a scheme to usurp
a public employee's paid time is one to take the government's
property. But Baroni's and Kelly's plan never had that as
an object. The use of Port Authority employees was inci-
dental to—the mere cost of implementing—the sought-after
regulation of the Bridge's toll lanes.
Start with this Court's decision in Cleveland, which re-
versed another set of federal fraud convictions based on the
distinction between property and regulatory power. The
defendant there had engaged in a deceptive scheme to infu-
ence, to his own beneft, Louisiana's issuance of gaming li-
censes. The Government argued that his fraud aimed to
deprive the State of property by altering its licensing
decisions. This Court rejected the claim. The State's “in-
tangible rights of allocation, exclusion, and control”—its pre-
rogatives over who should get a beneft and who should
not—do “not create a property interest.” Ibid. Rather,
the Court stated, those rights “amount to no more and no

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as: 590 U. S. 391 (2020)
401
Opinion of the Court
less than” the State's “sovereign power to regulate.” Ibid.;
see
id., at 20 (“[T]he State's core concern” in allocating gam-
ing licenses “is regulatory”). Or said another way: The de-
fendant's fraud “implicate[d] the Government's role as sover-
eign” wielding “traditional police powers”—not its role “as
property holder.” Id., at 23–24. And so his conduct, how-
ever deceitful, was not property fraud.
The same is true of the lane realignment. Through that
action, Baroni and Kelly changed the traffc fow onto the
George Washington Bridge's tollbooth plaza. Contrary to
the Government's view, the two defendants did not “comman-
deer” the Bridge's access lanes (supposing that word bears
its normal meaning). They (of course) did not walk away
with the lanes; nor did they take the lanes from the Govern-
ment by converting them to a non-public use. Rather, Bar-
oni and Kelly regulated use of the lanes, as offcials responsi-
ble for roadways so often do—allocating lanes as between
different groups of drivers. To borrow Cleveland's words,
Baroni and Kelly exercised the regulatory rights of “alloca-
tion, exclusion, and control”—deciding that drivers from
Fort Lee should get two fewer lanes while drivers from
nearby highways should get two more. They did so, accord-
ing to all the Government's evidence, for bad reasons; and
they did so by resorting to lies. But still, what they did was
alter a regulatory decision about the toll plaza's use—in ef-
fect, about which drivers had a “license” to use which lanes.
And under Cleveland, that run-of-the-mine exercise of regu-
latory power cannot count as the taking of property.
A government's right to its employees' time and labor, by
contrast, can undergird a property fraud prosecution. Sup-
pose that a mayor uses deception to get “on-the-clock city
workers” to renovate his daughter's new home. United
States v. Pabey, 664 F. 3d 1084, 1089 (CA7 2011). Or imagine
that a city parks commissioner induces his employees into
doing gardening work for political contributors. See United
States v. Delano, 55 F. 3d 720, 723 (CA2 1995). As both de-

402 KEL
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Opinion of the Court
fendants agree, the cost of those employees' services would
qua
lify as an economic loss to a city, suffcient to meet the
federal fraud statutes' property requirement. See Brief for
Respondent Baroni 27; Tr. of Oral Arg. 16. No less than if
the offcial took cash out of the city's bank account would he
have deprived the city of a “valuable entitlement.” Pas-
quantino, 544 U. S., at 357.
But that property must play more than some bit part in a
scheme: It must be an “object of the fraud.” Id., at 355; see
Brief for United States 44; supra, at 398. Or put differently,
a property fraud conviction cannot stand when the loss to
the victim is only an incidental byproduct of the scheme.
2
In the home-and-garden examples cited above, that con-
straint raised no problem: The entire point of the fraudsters'
plans was to obtain the employees' services. But now con-
sider the diffculty if the prosecution in Cleveland had raised
a similar employee-labor argument. As the Government
noted at oral argument here, the fraud on Louisiana's licens-
ing system doubtless imposed costs calculable in employee
time: If nothing else, some state worker had to process each
of the fraudster's falsifed applications. But still, the Gov-
ernment acknowledged, those costs were “[i]ncidental.” Tr.
of Oral Arg. 63. The object of the scheme was never to get
the employees' labor: It was to get gaming licenses. So the
labor costs could not sustain the conviction for property
fraud. See id., at 62–63.
This case is no different. The time and labor of Port Au-
thority employees were just the implementation costs of the
2
Without that rule, as Judge Easterbrook has elaborated, even a practi-
cal joke could be a federal felony. See United States v. Walters, 997 F. 2d
1219, 1224 (CA7 1993). His example goes: “A [e-mails] B an invitation to
a surprise party for their mutual friend C. B drives his car to the place
named in the invitation,” thus expending the cost of gasoline. Ibid.
“But there is no party; the address is a vacant lot; B is the butt of a joke.”
Ibid. Wire fraud? No. And for the reason Judge Easterbrook gave:
“[T]he victim's loss must be an objective of the [deceitful] scheme rather
than a byproduct of it.” Id., at 1226.

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as: 590 U. S. 391 (2020)
403
Opinion of the Court
defendants' scheme to reallocate the Bridge's access lanes.
Or
said another way, the labor costs were an incidental (even
if foreseen) byproduct of Baroni's and Kelly's regulatory ob-
ject. Neither defendant sought to obtain the services that
the employees provided. The back-up toll collectors—whom
Baroni joked would just “sit there and wait”—did nothing he
or Kelly thought useful. App. 303; see supra, at 397. In-
deed, those workers came onto the scene only because the
Port Authority's chief engineer managed to restore one of
Fort Lee's lanes to reduce the risk of traffc accidents. See
supra, at 396. In the defendants' or ig ina l plan, wh ich
scrapped all reserved lanes, there was no reason for extra
toll collectors. And similarly, Baroni and Kelly did not hope
to obtain the data that the traffc engineers spent their time
collecting. By the Government's own account, the traffc
study the defendants used for a cover story was a “sham,”
and they never asked to see its results. Brief for United
States 4, 32; see supra, at 395–396. Maybe, as the Govern-
ment contends, all of this work was “needed” to realize the
fnal plan—“to accomplish what [Baroni and Kelly] were try-
ing to do with the [B]ridge.” Tr. of Oral Arg. 60. Even if
so, it would make no difference. Every regulatory decision
(think again of Cleveland, see supra, at 402) requires the
use of some employee labor. But that does not mean every
scheme to alter a regulation has that labor as its object.
Baroni's and Kelly's plan aimed to impede access from Fort
Lee to the George Washington Bridge. The cost of the
employee hours spent on implementing that plan was its inci-
dental byproduct.
To r u le other w ise wou ld undercut th is Cour t's of t-
repeated instruction: Federal prosecutors may not use prop-
erty fraud statutes to “set[ ] standards of disclosure and good
government for local and state offcials.” McNally, 483
U. S., at 360; see supra, at 399. Much of governance involves
(as it did here) regulatory choice. If U. S. Attorneys could
prosecute as property fraud every lie a state or local offcial

404 KEL
LY v. UNITED STATES
Opinion of the Court
tells in making such a decision, the result would be—as
Cl
eveland recognized—“a sweeping expansion of federal
criminal jurisdiction.” 531 U. S., at 24. And if those prose-
cutors could end-run Cleveland just by pointing to the regu-
lation's incidental costs, the same ballooning of federal power
would follow. In effect, the Federal Government could use
the criminal law to enforce (its view of ) integrity in broad
swaths of state and local policymaking. The property fraud
statutes do not countenance that outcome. They do not
“proscribe[ ] schemes to defraud citizens of their intangible
rights to honest and impartial government.” McNally, 483
U. S., at 355; see supra, at 398. They bar only schemes for
obtaining property.
III
As Kelly's own lawyer acknowledged, this case involves an
“abuse of power.” Tr. of Oral Arg. 19. For no reason other
than political payback, Baroni and Kelly used deception to
reduce Fort Lee's access lanes to the George Washington
Bridge—and thereby jeopardized the safety of the town's
residents. But not every corrupt act by state or local off-
cials is a federal crime. Because the scheme here did not
aim to obtain money or property, Baroni and Kelly could not
have violated the federal-program fraud or wire fraud laws.
We therefore reverse the judgment of the Court of Appeals
and remand the case for further proceedings consistent with
this opinion.
It is so ordered.

OCTOBER
TERM, 2019
405
Syllabus
LUCKY BRAND DUNGAREES, INC., et al. v.
MARCEL
FASHIONS GROUP, INC.
certiorari to the united states court of appeals for
the second circuit
No. 18–1086. Argued January 13, 2020—Decided May 14, 2020
Petitioners (collectively Lucky Brand) and respondent (Marcel) both use
the word “Lucky” as part of their marks on jeans and other apparel.
Marcel received a trademark registration for the phrase “Get Lucky,”
and Lucky Brand uses the registered trademark “Lucky Brand” and
other marks with the word “Lucky.” This has led to nearly 20 years of
litigation, proceeding in three rounds. The frst round resulted in a
2003 settlement agreement in which Lucky Brand agreed to stop using
the phrase “Get Lucky” and Marcel agreed to release any claims regard-
ing Lucky Brand's use of its own trademarks. In the second round
(2005 Action), Lucky Brand sued Marcel and its licensee for violating
its trademarks. Marcel fled several counterclaims turning, as relevant
here, on Lucky Brand's alleged continued use of “Get Lucky,” but it did
not claim that Lucky Brand's use of its own marks alone infringed the
“Get Lucky” mark. In both a motion to dismiss the counterclaims and
an answer to them, Lucky Brand argued that the counterclaims were
barred by the settlement agreement, but it did not invoke that defense
later in the proceedings. The court in the 2005 Action permanently
enjoined Lucky Brand from copying or imitating Marcel's “Get Lucky”
mark, and a jury found against Lucky Brand on Marcel's remaining
counterclaims. In the third round (2011 Action), Marcel sued Lucky
Brand for continuing to infringe the “Get Lucky” mark, but it did not
reprise its 2005 allegation about Lucky Brand's use of the “Get Lucky”
phrase. After protracted litigation, Lucky Brand moved to dismiss,
arguing—for the frst time since early in the 2005 Action—that Marcel
had released its claims in the settlement agreement. Marcel countered
that Lucky Brand could not invoke the release defense because it could
have pursued that defense in the 2005 Action but did not. The District
Court granted Lucky Brand's motion to dismiss. The Second Circuit
vacated and remanded, concluding that “defense preclusion” prohibited
Lucky Brand from raising an unlitigated defense that it should have
raised earlier.
Held: Because Marcel's 2011 Action challenged different conduct—and
raised different claims—from the 2005 Action, Marcel cannot preclude
Lucky Brand from raising new defenses. Pp. 411–417.

406 L
UCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Syllabus
(a) This case asks whether so-called “defense preclusion” is a valid
appl
ication of res judicata: a term comprising the doctrine of issue pre-
clusion, which precludes a party from relitigating an issue actually de-
cided in a prior action and necessary to the judgment, and the doctrine
of claim preclusion, which prevents parties from raising issues that could
have been raised and decided in a prior action. Any preclusion of de-
fenses must, at a minimum, satisfy the strictures of issue preclusion or
claim preclusion. See, e. g., Davis v. Brown, 94 U. S. 423, 428. Here,
issue preclusion does not apply, so the causes of action must share a
“common nucleus of operative fact[s]” for claim preclusion to apply, Re-
statement (Second) of Judgments § 24, Comment b, p. 199. Pp. 411–413.
(b) Because the two suits here involved different marks and different
conduct occurring at different times, they did not share a “common nu-
cleus of operative facts.” The 2005 claims depended on Lucky Brand's
alleged use of “Get Lucky.” But in the 2011 Action, Marcel alleged that
the infringement was Lucky Brand's use of its other marks containing
the word “Lucky,” not any use of “Get Lucky” itself. The conduct in
the 2011 Action also occurred after the conclusion of the 2005 Action.
But claim preclusion generally “ `does not bar claims that are predicated
on events that postdate the fling of the initial complaint,' ” Whole Wom-
an's Health v. Hellerstedt, 579 U. S. 582, 600, because events occurring
after a plaintiff fles suit often give rise to new “operative facts” creat-
ing a new claim to relief. Pp. 413–415.
(c) Marcel claims that treatises and this Court's cases support a ver-
sion of “defense preclusion” that extends to the facts of this case. But
none of those authorities describe scenarios applicable here, and they
are unlikely to stand for anything more than that traditional claim- or
issue-preclusion principles may bar defenses raised in a subsequent
suit—principles that do not bar Lucky Brand's release defense here.
Pp. 415–417.
898 F. 3d 232, reversed and remanded.
Sotomayor, J., delivered the opinion for a unanimous Court.
Dale M. Cendali argued the cause for petitioners. With
him on the briefs were John C. O'Quinn, Matthew D. Rowen,
Claudia Ray, and Mary C. Mazzello.
Michael B. Kimberly argued the cause for respondent.
With him on the brief were Paul W. Hughes, Eugene R. Fi-
dell, Louis R. Gigliotti, and Robert L. Greener.

Cite
as: 590 U. S. 405 (2020)
407
Opinion of the Court
Justice Sotomayor delivered the opinion of the Court.
Th
is case arises from protracted litigation between peti-
tioners Lucky Brand Dungarees, Inc., and others (collec-
tively Lucky Brand) and respondent Marcel Fashions Group,
Inc. (Marcel). In the latest lawsuit between the two, Lucky
Brand asserted a defense against Marcel that it had not
pressed fully in a preceding suit between the parties. This
Court is asked to determine whether Lucky Brand's failure
to litigate the defense in the earlier suit barred Lucky Brand
from invoking it in the later suit. Because the parties agree
that, at a minimum, the preclusion of such a defense in this
context requires that the two suits share the same claim to
relief—and because we fnd that the two suits here did not—
Lucky Brand was not barred from raising its defense in the
later action.
I
Marcel and Lucky Brand both sell jeans and other apparel.
Both entities also use the word “Lucky” as part of their
marks on clothing. In 1986, Marcel received a federal trade-
mark registration for “Get Lucky”; a few years later, in 1990,
Lucky Brand began selling apparel using the registered
trademark “Lucky Brand” and other marks that include the
word “Lucky.” 779 F. 3d 102, 105 (CA2 2015).
Three categories of marks are at issue in this case: Mar-
cel's “Get Lucky” mark; Lucky Brand's “Lucky Brand” mark;
and various other marks owned by Lucky Brand that contain
the word “Lucky.” These trademarks have led to nearly 20
years of litigation between the two companies, proceeding in
three rounds.
A
In 2001—the frst round—Marcel sued Lucky Brand, alleg-
ing that Lucky Brand's use of the phrase “Get Lucky” in
advertisements infringed Marcel's trademark. In 2003, the
parties signed a settlement agreement. As part of the deal,

408 L
UCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
Lucky Brand agreed to stop using the phrase “Get Lucky.”
App
. 191. In exchange, Marcel agreed to release any claims
regarding Lucky Brand's use of its own trademarks. Id., at
191–192.
B
The ink was barely dry on the settlement agreement when,
in 2005, the parties began a second round of litigation (2005
Action). Lucky Brand fled suit, alleging that Marcel and
its licensee violated its trademarks by copying its designs
and logos in a new clothing line. As relevant here, Marcel
fled several counterclaims that all turned, in large part, on
Lucky Brand's alleged continued use of “Get Lucky”: One
batch of allegations asserted that Lucky Brand had contin-
ued to use Marcel's “Get Lucky” mark in violation of the
settlement agreement, while others alleged that Lucky
Brand's use of the phrase “Get Lucky” and “Lucky Brand”
together was “confusingly similar to”—and thus infringed––
Marcel's “Get Lucky” mark. Defendants' Answer, Affrma-
tive Defenses, and Counterclaims to Plaintiffs' Complaint
in No. 1:05–cv–06757 (SDNY), Doc. 40–2, p. 39; see id., at
34–41. None of Marcel's counterclaims alleged that Lucky
Brand's use of its own marks alone—i. e., independent of
any alleged use of “Get Lucky”—infringed Marcel's “Get
Lucky” mark.
Lucky Brand moved to dismiss the counterclaims, alleging
that they were barred by the release provision of the settle-
ment agreement. After the District Court denied the mo-
tion without prejudice, Lucky Brand noted the release de-
fense once more in its answer to Marcel's counterclaims.
But as the 2005 Action proceeded, Lucky Brand never again
invoked the release defense.
The 2005 Action concluded in two phases. First, as a
sanction for misconduct during discovery, the District Court
concluded that Lucky Brand violated the settlement agree-
ment by continuing to use “Get Lucky” and permanently en-
joined Lucky Brand from copying or imitating Marcel's “Get

Cite
as: 590 U. S. 405 (2020)
409
Opinion of the Court
Lucky” mark. Order Granting Partial Summary Judgment
and
Injunction in No. 1:05–cv–06757, Doc. 183; see also App.
203–204. The injunction did not enjoin, or even mention,
Lucky Brand's use of any other marks or phrases containing
the word “Lucky.” Order Granting Partial Summary Judg-
ment and Injunction, Doc. 183. The case then proceeded to
trial. The jury found against Lucky Brand on Marcel's
remaining counterclaims—those that alleged infringement
from Lucky Brand's continued use of the “Get Lucky”
catchphrase alongside its own marks. See Brief for Re-
spondent 52.
C
In April 2011, the third round of litigation began: Marcel
fled an action against Lucky Brand (2011 Action), maintain-
ing that Lucky Brand continued to infringe Marcel's “Get
Lucky” mark and, in so doing, contravened the judgment is-
sued in the 2005 Action.
This complaint did not reprise Marcel's earlier allegation
(in the 2005 Action) that Lucky Brand continued to use the
“Get Lucky” phrase. Marcel arg ued only that Lucky
Brand's continued, post-2010 use of Lucky Brand's own
marks—some of which used the word “Lucky”—infringed
Marcel's “Get Lucky” mark in a manner that (according to
Marcel) was previously found infringing.
1
Marcel requested
that the District Court enjoin Lucky Brand from using any
of Lucky Brand's marks containing the word “Lucky.”
The District Court granted Lucky Brand summary judg-
ment, concluding that Marcel's claims in the 2011 Action
1
See Complaint for Injunctive Relief and Trademark Infringement in No.
1:11–cv–05523 (SDNY), Doc. 1, ¶15 (“Despite the entry of the [2005 Action
judgment], [Lucky Brand] ha[s] continued to willfully . . . infringe [Marcel's]
GET LUCKY mark by using the Lucky Brand marks in the identical manner
and form and on the same goods for which [it] w[as] found liable for in-
fringement”); id., ¶20 (“Despite the entry of the” 2005 Action judgment,
Lucky Brand has “continued its uninterrupted and willful use of the Lucky
Brand marks and any other trademarks including the word `Lucky' ”).

410 L
UCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
were essentially the same as its counterclaims in the 2005
A
ction.
But the Court of Appeals for the Second Circuit disagreed.
779 F. 3d 102. The court concluded that Marcel's claims in
the 2011 Action were distinct from those it had asserted in
the 2005 Action, because the claims at issue in the 2005 Ac-
tion were “for earlier infringements.” Id., at 110. As the
court noted, “[w]inning a judgment . . . does not deprive the
plaintiff of the right to sue” for the defendant's “subsequent
similar violations.” Id., at 107.
The Second Circuit further rejected Marcel's request to
hold Lucky Brand in contempt for violating the injunction
issued in the 2005 Action. The court noted that the conduct
at issue in the 2011 Action was Lucky Brand's use of its own
marks—not the use of the phrase “Get Lucky.” By contrast,
the 2005 injunction prohibited Lucky Brand from using the
“Get Lucky” mark—not Lucky Brand's own marks that hap-
pened to contain the word “Lucky.” Id., at 111. Moreover,
the court reasoned that the jury in the 2005 Action had been
“free to fnd infringement of Marcel's `Get Lucky' mark based
solely on Lucky Brand's use of [the phrase] `Get Lucky.' ”
Id., at 112. The court vacated and remanded for further
proceedings.
On remand to the District Court, Lucky Brand moved to
dismiss, arguing—for the frst time since its motion to dis-
miss and answer in the 2005 Action—that Marcel had re-
leased its claims by entering the settlement agreement.
Marcel countered that Lucky Brand was precluded from in-
voking the release defense, because it could have pursued
the defense fully in the 2005 Action but had neglected to do
so. The District Court granted Lucky Brand's motion
to dismiss, holding that it could assert its release defense
and that the settlement agreement indeed barred Marcel's
claims.
The Second Circuit vacated and remanded, concluding that
a doctrine it termed “defense preclusion” prohibited Lucky

Cite
as: 590 U. S. 405 (2020)
411
Opinion of the Court
Brand from raising the release defense in the 2011 Action.
898
F. 3d 232 (2018). Noting that a different category of
preclusion—issue preclusion—may be wielded against a de-
fendant, see Parklane Hosiery Co. v. Shore, 439 U. S. 322
(1979), the court reasoned that the same should be true of
claim preclusion: A defendant should be precluded from rais-
ing an unlitigated defense that it should have raised earlier.
The panel then held that “defense preclusion” bars a party
from raising a defense where: “(i) a previous action involved
an adjudication on the merits”; “(ii) the previous action in-
volved the same parties”; “(iii) the defense was either as-
serted or could have been asserted, in the prior action”; and
“(iv) the district court, in its discretion, concludes that pre-
clusion of the defense is appropriate.” 898 F. 3d, at 241.
Finding each factor satisfed in this case, the panel vacated
the District Court's judgment. We granted certiorari, 588
U. S. 919 (2019), to resolve differences among the Circuits
regarding when, if ever, claim preclusion applies to defenses
raised in a later suit. Compare 898 F. 3d, at 241, with
Hallco Mfg. Co. v. Foster, 256 F. 3d 1290, 1297–1298 (CA Fed.
2001); McKinnon v. Blue Cross and Blue Shield of Alabama,
935 F. 2d 1187, 1192 (CA11 1991).
II
A
This case asks whether so-called “defense preclusion” is a
valid application of res judicata: a term that now comprises
two distinct doctrines regarding the preclusive effect of
prior litigation. 18 C. Wright, A. Miller, & E. Cooper, Fed-
eral Practice and Procedure § 4402 (3d ed. 2016) (Wright &
Miller). The frst is issue preclusion (sometimes called col-
lateral estoppel), which precludes a party from relitigating
an issue actually decided in a prior case and necessary to the
judgment. Allen v. McCurry, 449 U. S. 90, 94 (1980); see
Parklane Hosiery, 439 U. S., at 326, n. 5.

412 L
UCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
The second doctrine is claim preclusion (sometimes itself
ca
lled res judicata). Unlike issue preclusion, claim preclu-
sion prevents parties from raising issues that could have
been raised and decided in a prior action—even if they were
not actually litigated. If a later suit advances the same
claim as an earlier suit between the same parties, the earlier
suit's judgment “prevents litigation of all grounds for, or de-
fenses to, recovery that were previously available to the par-
ties, regardless of whether they were asserted or determined
in the prior proceeding.” Brown v. Felsen, 442 U. S. 127,
131 (1979); see also Wright & Miller § 4407. Suits involve
the same claim (or “cause of action”) when they “ `aris[e] from
the same transaction,' ” United States v. Tohono O'odham
Nation, 563 U. S. 307, 316 (2011) (quoting Kremer v. Chemi-
cal Constr. Corp., 456 U. S. 461, 482, n. 22 (1982)), or involve
a “common nucleus of operative facts,” Restatement (Sec-
ond) of Judgments § 24, Comment b, p. 199 (1980) (Restate-
ment (Second)).
Put another way, claim preclusion “describes the rules for-
merly known as `merger' and `bar.' ” Taylor v. Sturgell, 553
U. S. 880, 892, n. 5 (2008). “If the plaintiff wins, the entire
claim is merged in the judgment; the plaintiff cannot bring a
second independent action for additional relief, and the de-
fendant cannot avoid the judgment by offering new de-
fenses.” Wright & Miller § 4406. But “[i]f the second law-
suit involves a new claim or cause of action, the parties may
raise assertions or defenses that were omitted from the frst
lawsuit even though they were equally relevant to the frst
cause of action.” Ibid.
As the Second Circuit itself seemed to recognize, see 898
F. 3d, at 236–237, this Court has never explicitly recognized
“defense preclusion” as a standalone category of res judicata,
unmoored from the two guideposts of issue preclusion and
claim preclusion. Instead, our case law indicates that any
such preclusion of defenses must, at a minimum, satisfy the
strictures of issue preclusion or claim preclusion. See, e. g.,

Cite
as: 590 U. S. 405 (2020)
413
Opinion of the Court
Davis v. Brown, 94 U. S. 423, 428 (1877) (holding that where
two
lawsuits involved different claims, preclusion operates
“only upon the matter actually at issue and determined in
the original action”).
2
The parties thus agree that where,
as here, issue preclusion does not apply, a defense can be
barred only if the “causes of action are the same” in the two
suits—that is, where they share a “ `common nucleus of oper-
ative fact[s].' ” Brief for Respondent 2, 27, 31, 50; accord,
Reply Brief 3.
B
Put simply, the two suits here were grounded on different
conduct, involving different marks, occurring at different
times. They thus did not share a “common nucleus of opera-
tive facts.” Restatement (Second) § 24, Comment b, at 199.
To start, claims to relief may be the same for the purposes
of claim preclusion if, among other things, “ `a different judg-
ment in the second action would impair or destroy rights or
interests established by the judgment entered in the frst
action.' ” Wright & Miller § 4407. Here, however, the 2011
Action did not imperil the judgment of the 2005 Action be-
cause the lawsuits involved both different conduct and differ-
ent trademarks.
In the 2005 Action, Marcel alleged that Lucky Brand
infringed Marcel's “Get Lucky” mark both by directly imitat-
2
There may be good reasons to question any application of claim preclu-
sion to defenses. It has been noted that in suits involving successive
claims against the same defendant, courts often “assum[e] that the de-
fendant may raise defenses in the second action that were not raised in
the frst, even though they were equally available and relevant in both
actions.” Wright & Miller § 4414. This is because “[v]arious considera-
tions, other than the actual merits, may govern” whether to bring a de-
fense, “such as the smallness of the amount or the value of the property
in controversy, the diffculty of obtaining the necessary evidence, the ex-
pense of the litigation, and [a party's] own situation.” Cromwell v.
County of Sac, 94 U. S. 351, 356 (1877). Here, however, this Court need
not determine when (if ever) applying claim preclusion to defenses may be
appropriate, because a necessary predicate—identity of claims—is lacking.

414 L
UCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
ing its “Get Lucky” mark and by using the “Get Lucky” slo-
gan
alongside Lucky Brand's other marks in a way that cre-
ated consumer confusion. Brief for Respondent 52. Marcel
appears to admit, thus, that its claims in the 2005 Action
depended on Lucky Brand's alleged use of “Get Lucky.” Id.,
at 9–10 (“Marcel's reverse-confusion theory [in the 2005
Action] depended, in part, on Lucky's continued imitation of
the get lucky mark”).
By contrast, the 2011 Action did not involve any alleged
use of the “Get Lucky” phrase. Indeed, Lucky Brand had
been enjoined in the 2005 Action from using “Get Lucky,”
and in the 2011 Action, Lucky Brand was found not to have
violated that injunction. 779 F. 3d, at 111–112. The parties
thus do not argue that Lucky Brand continued to use “Get
Lucky” after the 2005 Action concluded, and at oral argu-
ment, counsel for Marcel appeared to confrm that Marcel's
claims in the 2011 Action did not allege that Lucky Brand
continued to use “Get Lucky.” Tr. of Oral Arg. 46. In-
stead, Marcel alleged in the 2011 Action that Lucky Brand
committed infringement by using Lucky Brand's own marks
containing the word “Lucky”—not the “Get Lucky” mark it-
self. Plainly, then, the 2011 Action challenged different con-
duct, involving different marks.
Not only that, but the complained-of conduct in the 2011
Action occurred after the conclusion of the 2005 Action.
Claim preclusion generally “does not bar claims that are
predicated on events that postdate the fling of the initial
complaint. ” Who le Woman's Health v. Hellerstedt, 579
U. S. 582, 600 (2016) (internal quotation marks omitted);
Lawlor v. National Screen Service Corp., 349 U. S. 322, 327–
328 (1955) (holding that two suits were not “based on the
same cause of action,” because “[t]he conduct presently com-
plained of was all subsequent to” the prior judgment and it
“cannot be given the effect of extinguishing claims which did
not even then exist and which could not possibly have been

Cite
as: 590 U. S. 405 (2020)
415
Opinion of the Court
sued upon in the previous case”). This is for good reason:
E
vents that occur after the plaintiff fles suit often give rise
to new “[m]aterial operative facts” that “in themselves, or
taken in conjunction with the antecedent facts,” create a new
claim to relief. Restatement (Second) § 24, Comment f, at 203;
18 J. Moore, D. Coquillette, G. Joseph, G. Vairo, & C. Varner,
Moore's Federal Practice § 131.22[1], p. 131–55, n. 1 (3d ed.
2019) (citing cases where “[n]ew facts create[d a] new claim”).
This principle takes on particular force in the trademark
context, where the enforceability of a mark and likelihood of
confusion between marks often turns on extrinsic facts that
change over time. As Lucky Brand points out, liability for
trademark infringement turns on marketplace realities that
can change dramatically from year to year. Brief for Peti-
tioners 42–45. It is no surprise, then, that the Second Cir-
cuit held that Marcel's 2011 Action claims were not barred
by the 2005 Action. By the same token, the 2005 Action
could not bar Lucky Brand's 2011 defenses.
At bottom, the 2011 Action involved different marks, dif-
ferent legal theories, and different conduct—occurring at dif-
ferent times. Because the two suits thus lacked a “common
nucleus of operative facts,” claim preclusion did not and
could not bar Lucky Brand from asserting its settlement
agreement defense in the 2011 Action.
III
Resisting this conclusion, Marcel points to treatises and
this Court's cases, arguing that they support a version of
“defense preclusion” doctrine that extends to the facts of this
case. Brief for Respondent 24–26. But these authorities
do no such thing. As an initial matter, regardless of what
those authorities might imply about “defense preclusion,”
none of them describe scenarios applicable here. Moreover,
we doubt that these authorities stand for anything more than
that traditional claim- or issue-preclusion principles may bar

416 L
UCKY BRAND DUNGAREES, INC. v.
MARCEL FASHIONS GROUP, INC.
Opinion of the Court
defenses raised in a subsequent suit—principles that, as ex-
plai
ned above, do not bar Lucky Brand's release defense
here.
Take, for example, cases that involve either judgment en-
forcement or a collateral attack on a prior judgment. Id., at
26–35. In the former scenario, a party takes action to en-
force a prior judgment already issued against another; in the
latter, a party seeks to avoid the effect of a prior judgment
by bringing a suit to undo it. If, in either situation, a differ-
ent outcome in the second action “would nullify the initial
judgment or would impair rights established in the initial
action,” preclusion principles would be at play. Restate-
ment (Second) § 22(b), at 185; Wright & Miller § 4414. In
both scenarios, courts simply apply claim preclusion or issue
preclusion to prohibit a claim or defense that would attack
a previously decided claim.
3
But these principles do not
preclude defendants from asserting defenses to new claims,
which is precisely what Marcel would have us do here.
In any event, judgment-enforcement and collateral-attack
scenarios are far afeld from the circumstances of this case.
Lucky Brand's defense in the 2011 Action did not threaten
the judgment issued in the 2005 Action or, as Marcel argues,
“achieve the same practical result” that the above-mentioned
3
One might ask: If any preclusi on of defenses (under the clai m-
preclusion rubric) requires identity of claims in two suits, how could the
second similar suit have avoided standard claim preclusion in the frst
place? Different contexts may yield different answers. In a judgment-
enforcement context, the answer may be that claim preclusion applies only
“to a fnal judgment rendered in an action separate from that in which the
doctrine is asserted.” 18 J. Moore, D. Coquillette, G. Joseph, G. Vairo, &
C. Varner, Moore's Federal Practice § 131.31[1], p. 131–116 (3d ed. 2019)
(emphasis added). Thus—although claim preclusion does apply to a later,
standalone suit seeking relief that could have been obtained in the frst—
it “is not applicable to . . . efforts to obtain supplemental relief in the
original action, or direct attacks on the judgment.” Ibid. The upshot is
that—even if a court deems the underlying core of operative facts to be
the same—a plaintiff in that circumstance is not precluded from enforcing
its rights with respect to continuing wrongful conduct.

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417
Opinion of the Court
principles seek to avoid. Brief for Respondent 31–32. In-
deed,
while the judgment in the 2005 Action plainly prohib-
ited Lucky Brand from using “Get Lucky,” it did not do the
same with respect to Lucky Brand's continued, standalone
use of its own marks containing the word “Lucky”—the only
conduct at issue in the 2011 Action. Put simply, Lucky
Brand's defense to new claims in the 2011 Action did not risk
impairing the 2005 judgment.
Nor do cases like Beloit v. Morgan, 7 Wall. 619 (1869), aid
Marcel. See Brief for Respondent 32–33. To be sure, Be-
loit held that a defendant in a second suit over bonds “of the
same issue” was precluded from raising a defense it had not
raised in the frst suit. 7 Wall., at 620. But the Court there
explained that the judgment in the frst suit “established
conclusively the original validity of the securities described
in the bill, and the liability of the town to pay them.” Id.,
at 623. In other words, by challenging the validity of all
bonds of the same issue, the defense in the second suit would
have threatened the validity of the judgment in the frst suit.
The same cannot be said of the defense raised in the 2011
Action vis-à-vis the judgment in the 2005 Action.
***
At bottom, Marcel's 2011 Acti on cha llenged different
conduct—and raised different claims—from the 2005 Action.
Under those circumstances, Marcel cannot preclude Lucky
Brand from raising new defenses. The judgment of the Sec-
ond Circuit is therefore reversed, and the case is remanded
for proceedings consistent with this opinion.
It is so ordered.

418 OCTOBER
TERM, 2019
Syllabus
OPATI, in her own right and as executrix of the
EST
ATE OF OPATI, DECEASED, et al. v. RE-
PUBLIC OF SUDAN et al.
certiorari to the united states court of appeals for
the district of columbia circuit
No. 17–1268. Argued February 24, 2020—Decided May 18, 2020
In 1998, al Qaeda operatives detonated truck bombs outside the United
States Embassies in Kenya and Tanzania. Victims and their family
members sued the Republic of Sudan under the state-sponsored terror-
ism exception to the Foreign Sovereign Immunities Act (FSIA), for-
merly 28 U. S. C. § 1605(a)(7), alleging that Sudan had assisted al Qaeda
in perpetrating the attacks. At the time, the plaintiffs faced § 1606's
bar on punitive damages for suits proceeding under any of the § 1605
sovereign immunity exceptions. In 2008, Congress amended the FSIA
in the National Defense Authorization Act (NDAA). 122 Stat. 3. In
NDAA § 1083(a), Congress moved § 1605(a)(7) to a new section and cre-
ated an express federal cause of action for acts of terror that also pro-
vided for punitive damages. See § 1605A(c). In § 1083(c)(2), it gave ef-
fect to existing lawsuits that had been “adversely affected” by prior law
“as if ” they had been originally fled under the new § 1605A(c). And in
§ 1083(c)(3), it provided a time-limited opportunity for plaintiffs to fle
new actions “arising out of the same act or incident” as an earlier action
and claim § 1605A's benefts. Following these amendments, the original
plaintiffs amended their complaint to include the new federal cause of
action under § 1605A(c), and hundreds of others fled new, similar claims.
The district court entered judgment for the plaintiffs and awarded ap-
proximately $10.2 billion in damages, including roughly $4.3 billion in
punitive damages. As relevant here, the court of appeals held that the
plaintiffs were not entitled to punitive damages because Congress had
included no statement in NDAA § 1083 clearly authorizing punitive
damages for preenactment conduct.
Held: Plaintiffs in a federal cause of action under § 1605A(c) may seek
punitive damages for preenactment conduct. Even assuming (without
granting) that Sudan may claim the beneft of the presumption of
prospectivity—the assumption that Congress means its legislation to
apply only to future conduct, see Landgraf v. USI Film Products,
511 U. S. 244—Congress was as clear as it could have been when it
expressly authorized punitive damages under § 1605A(c) and explicitly

Cite
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419
Syllabus
made that new cause of action available to remedy certain past acts
of
terrorism.
Sudan stresses that § 1083(c) does not itsel f contain an express au-
thorization of punitive damages. It does admit that § 1083(c) authorizes
plaintiffs to bring § 1605A(c) claims for preenactment conduct. And it
does concede that § 1605A(c) allows for damages that “may include eco-
nomic damages, solatium, [and] pain and suffering ” for preenactment
conduct. That list in the statute also “include[s] . . . punitive damages,”
and no plausible account of § 1083(c) could be clear enough to authorize
the retroactive application of all other § 1605A(c) features except puni-
tive damages. Sudan also contends that § 1605A(c)'s wording “may in-
clude . . . punitive damages” fails the clarity test. But “the `word “may”
clearly connotes discretion,' ” Halo Electronics, Inc. v. Pulse Electron-
ics, Inc., 579 U. S. 93, 103, and simply vests district courts with discre-
tion to determine whether punitive damages are appropriate. In addi-
tion, all of the categories of special damages mentioned in § 1605A(c) are
provided on equal terms. Finally, Sudan suggests that a super-clarity
rule should apply here because retroactive punitive damages raise spe-
cial constitutional concerns. Such an interpretative rule is not reason-
ably administrable.
This Court declines to resolve other matters raised by the parties out-
side the question presented. But having decided that punitive damages
are permissible for federal claims and that the reasons the court of appeals
offered for its contrary decision were mistaken, it follows that the court
of appeals must also reconsider its decision concerning the availability of
punitive damages for claims proceeding under state law. Pp. 425–431.
864 F. 3d 751, vacated and remanded.
Gorsuch, J., delivered the opinion of the Court, in which all other Mem-
bers joined, except Kavanaugh, J., who took no part in the consideration
or decision of the case.
Ma t thew D. M cG i ll arg ued the cause for petiti oners.
With him on the briefs were Lochlan F. Shelfer, Joshua M.
Wesneski, Steven R. Perles, Steven W. Pelak, Brett C. Ruff,
Michael J. Miller, and Gavriel Mairone.
Erica L. Ross argued the cause for the United States as
amicus curiae urging reversal. With her on the brief were
Solicitor General Francisco, Assistant Attorney General
Hunt, Deputy Solicitor General Kneedler, Sharon Swingle,
and Sonia M. Carson.

420 OP
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Opinion of the Court
Christopher M. Curran argued the cause for respondents.
W
ith him on the brief were Nicole Erb, Claire A. DeLelle,
Celia A. McLaughlin, and Nicolle Kownacki.
Justice Gorsuch delivered the opinion of the Court.
In 1998, al Qaeda operatives simultaneously detonated
truck bombs outside the United States Embassies in Kenya
and Tanzania. Hundreds died, thousands were injured. In
time, victims and their family members sued the Republic of
Sudan in federal court, alleging that it had assisted al Qaeda
in perpetrating the attacks. After more than a decade of
motions practice, intervening legislative amendments, and a
trial, the plaintiffs proved Sudan's role in the attacks and
established their entitlement to compensatory and punitive
damages. On appeal, however, Sudan argued, and the court
agreed, that the Foreign Sovereign Immunities Act barred
the punitive damages award. It is that decision we now re-
view and, ultimately, vacate.
*
The starting point for nearly any dispute touching on for-
eign sovereign immunity lies in Schooner Exchange v. Mc-
Faddon, 7 Cranch 116 (1812). There, Chief Justice Marshall
explained that foreign sovereigns do not enjoy an inherent
right to be held immune from suit in American courts: “The
jurisdiction of the nation within its own territory is necessar-
ily exclusive and absolute. It is susceptible of no limitation
not imposed by itself.” Id., at 136. Still, Chief Justice Mar-
shall continued, many countries had declined to exercise ju-
risdiction over foreign sovereigns in cases involving foreign
ministers and militaries. Id., at 137–140. And, accepting a
suggestion from the Executive Branch, the Court agreed as
a matter of comity to extend that same immunity to a foreign
sovereign in the case at hand. Id., at 134, 145–147.
For much of our history, claims of foreign sovereign immu-
nity were handled on a piecework basis that roughly paral-

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as: 590 U. S. 418 (2020)
421
Opinion of the Court
leled the process in Schooner Exchange. Typically, after a
plai
ntiff sought to sue a foreign sovereign in an American
court, the Executive Branch, acting through the State De-
partment, fled a “suggestion of immunity”—case-specifc
guidance about the foreign sovereign's entitlement to immu-
nity. See Verlinden B. V. v. Central Bank of Nigeria, 461
U. S. 480, 487 (1983). Because foreign sovereign immunity
is a matter of “grace and comity,” Republic of Austria v.
Altmann, 541 U. S. 677, 689 (2004), and so often implicates
judg ments the Constituti on reserves to the pol itica l
branches, courts “consistently . . . deferred” to these sugges-
tions, Verlinden, 461 U. S., at 486.
Eventually, though, this arrangement began to break
down. In the mid-20th century, the State Department
started to take a more restrictive and nuanced approach
to foreign sovereign immunity. See id., at 486–487. Some-
times, too, foreign sovereigns neglected to ask the State De-
partment to weigh in, leaving courts to make immunity deci-
sions on their own. See id., at 487–488. “Not surprisingly”
given these developments, “the governing standards” for
foreign sovereign immunity determinations over time be-
came “neither clear nor uniformly applied.” Id., at 488.
In 1976, Congress sought to remedy the problem and ad-
dress foreign sovereign immunity on a more comprehensive
basis. The result was the Foreign Sovereign Immunities
Act (FSIA). As a baseline rule, the FSIA holds foreign
states and their instrumentalities immune from the jurisdic-
tion of federal and state courts. See 28 U. S. C. §§ 1603(a),
1604. But the law also includes a number of exceptions.
See, e. g., §§ 1605, 1607. Of particular relevance today is the
terrorism exception Congress added to the law in 1996.
That exception permits certain plaintiffs to bring suits
against countries who have committed or supported specifed
acts of terrorism and who are designated by the State De-
partment as state sponsors of terror. Still, as originally
enacted, the exception shielded even these countries from

422 OP
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Opinion of the Court
the possibility of punitive damages. See Antiterrorism
and
Effective Death Penalty Act of 1996 (codifying state-
sponsored terrorism exception at 28 U. S. C. § 1605(a)(7));
§ 1606 (generally barring punitive damages in suits proceed-
ing under any of § 1605's sovereign immunity exceptions).
Two years after Congress amended the FSIA, al Qaeda
attacked the U. S. Embassies in Kenya and Tanzania. In re-
sponse, a group of victims and affected family members led
by James Owens sued Sudan in federal district court, invok-
ing the newly adopted terrorism exception and alleging that
Sudan had provided shelter and other material support to
al Qaeda. As the suit progressed, however, a question
emerged. In its recent amendments, had Congress merely
withdrawn immunity for state-sponsored terrorism, allowing
plaintiffs to proceed using whatever pre-existing causes of
action might be available to them? Or had Congress gone
further and created a new federal cause of action to address
terrorism? Eventually, the D. C. Circuit held that Congress
had only withdrawn immunity without creating a new cause
of action. See Cicippio-Puelo v. Islamic Republic of Iran,
353 F. 3d 1024, 1033 (2004).
In response to that and similar decisions, Congress
amended the FSIA again in the National Defense Authoriza-
tion Act for Fiscal Year 2008 (NDAA), 122 Stat. 338. Four
changes, all found in a single section, bear mention here.
First, in § 1083(a) of the NDAA, Congress moved the state-
sponsored terrorism exception from its original home in
§ 1605(a)(7) to a new section of the U. S. Code, 28 U. S. C.
§ 1605A. This had the effect of freeing claims brought under
the terrorism exception from the FSIA's usual bar on puni-
tive damages. See § 1606 (denying punitive damages in
suits proceeding under a sovereign immunity exception
found in § 1605 but not § 1605A). Second, also in § 1083(a),
Congress created an express federal cause of action for acts
of terror. This new cause of action, codifed at 28 U. S. C.
§ 1605A(c), is open to plaintiffs who are U. S. nationals, mem-

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as: 590 U. S. 418 (2020)
423
Opinion of the Court
bers of the Armed Forces, U. S. government employees or
contrac
tors, and their legal representatives, and it expressly
authorizes punitive damages. Third, in § 1083(c)(2) of the
NDAA, a provision titled “Prior Actions,” Congress ad-
dressed existing lawsuits that had been “adversely affected
on the groun[d] that” prior law “fail[ed] to create a cause
of action against the state.” Actions like these, Congress
instructed, were to be given effect “as if ” they had been
originally fled under § 1605A(c)'s new federal cause of action.
Finally, in § 1083(c)(3) of the NDAA, a provision titled “Re-
lated Actions,” Congress provided a time-limited opportu-
nity for plaintiffs to fle new actions “arising out of the same
act or incident” as an earlier action and claim the benefts of
28 U. S. C. § 1605A.
Fol low i ng these amendments, the O w en s plai nti ffs
amended their complaint to include the new federal cause of
action, and hundreds of additional victims and family mem-
bers fled new claims against Sudan similar to those in
Owens. Some of these new plaintiffs were U. S. nationals
or federal government employees or contractors who sought
relief under the new § 1605A(c) federal cause of action. But
others were the foreign-national family members of U. S.
government employees or contractors killed or injured in
the attacks. Ineligible to invoke § 1605A(c)'s new federal
cause of ac ti on, these plai nti ffs rel ied on § 1605A(a)'s
state-sponsored terrorism exception to overcome Sudan's
sovereign immunity and then advance claims sounding in
state law.
After a consolidated bench trial in which Sudan declined
to participate, the district court entered judgment in favor
of the plaintiffs. District Judge John Bates offered detailed
factual fndings explaining that Sudan had knowingly served
as a safe haven near the two United States Embassies and
allowed al Qaeda to plan and train for the attacks. The
court also found that Sudan had provided hundreds of Suda-
nese passports to al Qaeda, allowed al Qaeda operatives to

424 OP
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Opinion of the Court
travel over the Sudan-Kenya border without restriction, and
per
mitted the passage of weapons and money to supply al
Qaeda's cell in Kenya. See Owens v. Republic of Sudan, 826
F. Supp. 2d 128, 139–146 (DC 2011).
The question then turned to damages. Given the exten-
sive and varied nature of the plaintiffs' injuries, the court
appointed seven Special Masters to aid its factfnding. Over
more than two years, the Special Masters conducted individ-
ual damages assessments and submitted written reports.
Based on these reports, and after adding a substantial
amount of prejudgment interest to account for the many
years of delay, the district court awarded a total of approxi-
mately $10.2 billion in damages, including roughly $4.3 billion
in punitive damages to plaintiffs who had brought suit in the
wake of the 2008 amendments.
At that point, Sudan decided to appear and appeal.
Among other things, Sudan sought to undo the district
court's punitive damages award. Generally, Sudan argued,
Congress may create new forms of liability for past conduct
only by clearly stating its intention to do so. And, Sudan
continued, when Congress passed the NDAA in 2008, it no-
where clearly authorized punitive damages for anything
countries like Sudan might have done in the 1990s.
The court of appeals agreed. It started by addressing the
plaintiffs who had proceeded under the new federal cause of
action in § 1605A(c). The court noted that, in passing the
NDAA, Congress clearly authorized individuals to use the
Prior Actions and Related Actions provisions to bring new
federal claims attacking past conduct. Likewise, the law
clearly allowed these plaintiffs to collect compensatory dam-
ages for their claims. But, the court held, Congress in-
cluded no statement clearly authorizing punitive damages
for preenac tment conduc t. See O w en s v. Re publ i c o f
Sudan, 864 F. 3d 751, 814–817 (CADC 2017). Separately
but for essentially the same reasons, the court held that the
foreign-national family member plaintiffs who had proceeded

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as: 590 U. S. 418 (2020)
425
Opinion of the Court
under state-law causes of action were also barred from seek-
i
ng and obtaining punitive damages. Id., at 817.
The petitioners responded by asking this Court to review
the frst of these rulings and decide whether the 2008 NDAA
amendments permit plaintiffs proceeding under the federal
cause of action in § 1605A(c) to seek and win punitive dam-
ages for past conduct. We agreed to resolve that question.
588 U. S. 919 (2019).
*
The principle that legislation usually applies only prospec-
tively “is deeply rooted in our jurisprudence, and embodies
a legal doctrine centuries older than our Republic.” Land-
graf v. USI Film Products, 511 U. S. 244, 265 (1994). This
principle protects vital due process interests, ensuring that
“individuals . . . have an opportunity to know what the law
is” before they act, and may rest assured after they act that
their lawful conduct cannot be second-guessed later. Ibid.
The principle serves vital equal protection interests as well:
If legislative majorities could too easily make new laws with
retroactive application, disfavored groups could become easy
targets for discrimination, with their past actions visible and
unalterable. See id., at 266–267. No doubt, reasons like
these are exactly why the Constitution discourages retroac-
tive lawmaking in so many ways, from its provisions prohib-
iting ex post facto laws, bills of attainder, and laws impairing
the obligations of contracts, to its demand that any taking
of property be accompanied by just compensation. See id.,
at 266.
Still, Sudan doesn't challenge the constitutionality of the
2008 NDAA amendments on these or any other grounds—
the arguments we confront today are limited to the feld of
statutory interpretation. But, as both sides acknowledge,
the principle of legislative prospectivity plays an important
role here too. In fact, the parties devote much of their
briefng to debating exactly how that principle should inform
our interpretation of the NDAA.

426 OP
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Opinion of the Court
For its part, Sudan points to Landgraf. There, the Court
observed
that, “in decisions spanning two centuries,” we
have approached debates about statutory meaning with an
assumption that Congress means its legislation to respect
the principle of prospectivity and apply only to future
conduct—and that, if and when Congress wishes to test its
power to legislate retrospectively, it must say so “clear[ly].”
Id., at 272. All this is important, Sudan tells us, because
when we look to the NDAA we will fnd no clear statement
allowing courts to award punitive damages for past conduct.
But if Sudan focuses on the rule, the petitioners highlight
an exception suggested by Altmann. Because foreign sov-
ereign immunity is a gesture of grace and comity, Altmann
reasoned, it is also something that may be withdrawn retro-
actively without the same risk to due process and equal pro-
tection principles that other forms of backward-looking legis-
lation can pose. Foreign sovereign immunity's “principal
purpose,” after all, “has never been to permit foreign states
. . . to shape their conduct in reliance on the promise of future
immunity from suit in United States courts.” 541 U. S., at
696. Thus, Altmann held, “[i]n th[e] sui generis context [of
foreign sovereign immunity], . . . it [is] more appropriate,
absent contraindications, to defer to the most recent . . . deci-
sion [of the political branches] than to presume that decision
inapplicable merely because it postdates the conduct in
question.” Ibid. And, the petitioners stress, once the pre-
sumption of prospectivity is swept away, the NDAA is easily
read to authorize punitive damages for completed conduct.
Really, this summary only begins to scratch the surface of
the parties' debate. Sudan replies that it may be one thing
to retract immunity retroactively consistent with Altmann,
because all that does is open a forum to hear an otherwise
available legal claim. But it is another thing entirely to cre-
ate new rules regulating primary conduct and impose them
retroactively. When Congress wishes to do that, Sudan

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427
Opinion of the Court
says, it must speak just as clearly as Landgraf commanded.
And,
Sudan adds, the NDAA didn't simply open a new forum
to hear a pre-existing claim; it also created a new cause of
action governing completed conduct that the petitioners now
seek to exploit. Cf. Altmann, 541 U. S., at 702–704 (Scalia,
J., concurring). In turn, the petitioners retort that Alt-
mann itself might have concerned whether a new forum
could hear an otherwise available and pre-existing claim, but
its reasoning went further. According to the petitioners,
the decision also strongly suggested that the presumption of
prospectivity does not apply at all when it comes to suits
against foreign sovereigns, full stop. These points and more
the parties develop through much of their briefng before us.
As we see it, however, there is no need to resolve the par-
ties' debate over interpretive presumptions. Even if we as-
sume (without granting) that Sudan may claim the beneft of
Landgraf 's presumption of prospectivity, Congress was as
clear as it could have been when it authorized plaintiffs
to seek and win punitive damages for past conduct using
§ 1605A(c)'s new federal cause of action. After all, in
§ 1083(a), Congress created a federal cause of action that ex-
pressly allows suits for damages that “may include economic
damages, solatium, pain and suffering, and punitive dam-
ages.” (Emphasis added.) This new cause of action was
housed in a new provision of the U. S. Code, 28 U. S. C.
§ 1605A, to which the FSIA's usual prohibition on punitive
damages does not apply. See § 1606. Then, in §§ 1083(c)(2)
and (c)(3) of the very same statute, Congress allowed certain
plaintiffs in “Prior Actions” and “Related Actions” to invoke
the new federal cause of action in § 1605A. Both provisions
specifcally authorized new claims for preenactment conduct.
Put another way, Congress proceeded in two equally evident
steps: (1) It expressly authorized punitive damages under a
new cause of action; and (2) it explicitly made that new cause
of action available to remedy certain past acts of terrorism.

428 OP
ATI v. REPUBLIC OF SUDAN
Opinion of the Court
Neither step presents any ambiguity, nor is the NDAA fairly
susceptible
to any competing interpretation.
Sudan's primary rejoinder only serves to underscore the
conclusion. Like the court of appeals before it, Sudan
stresses that § 1083(c) itself contains no express authoriza-
tion of punitive damages. But it's hard to see what differ-
ence that makes. Sudan admits that § 1083(c) authorizes
plaintiffs to bring claims under § 1605A(c) for acts committed
before the 2008 amendments. Sudan concedes, too, that
§ 1605A(c) authorizes plaintiffs to seek and win “economic
damages, solatium, [and] pain and suffering,” for preenact-
ment conduct. In fact, except for the two words “punitive
damages,” Sudan accepts that every other jot and tittle of
§ 1605A(c) applies to actions properly brought under § 1083(c)
for past conduct. And we can see no plausible account on
which § 1083(c) could be clear enough to authorize the retro-
active application of all other features of § 1605A(c), just not
these two words.
Sudan next contends that § 1605A(c) fails to authorize ret-
roactive punitive damages with suffcient clarity because it
sounds equivoca l—the provisi on says only that awards
“may” include punitive damages. But this language sim-
ply vests distr ic t cour ts w ith discreti on to deter mi ne
whether punitive damages are appropriate in view of the
facts of a particular case. As we have repeatedly observed
when discussing remedial provisions using similar language,
“the `word “may” clearly connotes discretion.' ” Halo Elec-
tronics, Inc. v. Pulse Electronics, Inc., 579 U. S. 93, 103
(2016) (quoting Martin v. Franklin Capital Corp., 546 U. S.
132, 136 (2005), in turn quoting Fogerty v. Fantasy, Inc., 510
U. S. 517, 533 (1994); emphasis added). What's more, all of
the categories of special damages mentioned in § 1605A(c)
are provided on equal terms: “[D]amages may include eco-
nomic damages, solatium, pain and suffering, and punitive
damages.” (Emphasis added.) Sudan admits that the stat-

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as: 590 U. S. 418 (2020)
429
Opinion of the Court
ute vests the district court with discretion to award the frst
three
kinds of damages for preenactment conduct—and the
same can be no less true when it comes to the fourth.
That takes us to Sudan's fnal argument. Maybe Con-
gress did act clearly when it authorized a new cause of action
and other forms of damages for past conduct. But because
retroactive damages of the punitive variety raise special
constitutional concerns, Sudan says, we should create and
apply a new rule requiring Congress to provide a super-clear
statement when it wishes to authorize their use.
We decline this invitation. It's true that punitive dam-
ages aren't merely a form a compensation but a form of pun-
ishment, and we don't doubt that applying new punishments
to completed conduct can raise serious constitutional ques-
tions. See Landgraf, 511 U. S., at 281. But if Congress
clearly authorizes retroactive punitive damages in a manner
a litigant thinks unconstitutional, the better course is for the
litigant to challenge the law's constitutionality, not ask a
court to ignore the law's manifest direction. Besides, when
we fashion interpretive rules, we usually try to ensure that
they are reasonably administrable, comport with linguistic
usage and expectations, and supply a stable backdrop against
which Congress, lower courts, and litigants may plan and act.
See id., at 272–273. And Sudan's proposal promises more
nearly the opposite: How much clearer-than-clear should
we require Congress to be when authorizing the retroactive
use of punitive damages? Sudan doesn't even try to say,
except to assure us it knows a super-clear statement when
it sees it, and can't seem to fnd one here. That sounds much
less like an administrable rule of law than an appeal to the
eye of the beholder.
*
With the question presented now resolved, both sides ask
us to tackle other matters in this long-running litigation.
Perhaps most signifcantly, the petitioners include a post-

430 OP
ATI v. REPUBLIC OF SUDAN
Opinion of the Court
script asking us to decide whether Congress also clearly
author
ized retroactive punitive damages in claims brought
by foreign-national family members under state law using
§ 1605A(a)'s exception to sovereign immunity. Sudan insists
that, if we take up that question, we must account for the
fact that § 1605A(a), unlike § 1605A(c), does not expressly dis-
cuss punitive damages. And in fairness, Sudan contends, we
should also resolve whether litigants may invoke state law
at all, in light of the possibility that § 1605A(c) now supplies
the exclusive cause of action for claims involving state-
sponsored acts of terror.
We decline to resolve these or other matters outside the
question presented. The petitioners chose to limit their pe-
tition to the propriety of punitive damages under the federal
cause of action in § 1605A(c). See Pet. for Cert. i. The So-
licitor General observed this limitation in the question pre-
sented at the petition stage. See Brief for United States as
Amicus Curiae 19, n. 8. The parties' briefng and argument
on matters outside the question presented has been limited,
too, and we think it best not to stray into new terrain on
the basis of such a meager invitation and with such little
assistance.
Still, we acknowledge one implication that necessarily fol-
lows from our holding today. The court of appeals refused
to allow punitive damages awards for foreign-national family
members proceeding under state law for “the same reason”
it refused punitive damages for the plaintiffs proceeding
under § 1605A(c)'s federal cause of action. 864 F. 3d, at 818.
The court stressed that it would be “puzzling ” if punitive
damages were permissible for state claims but not federal
ones. Id., at 817. Having now decided that punitive dam-
ages are permissible for federal claims, and that the reasons
the court of appeals offered for its contrary decision were
mistaken, it follows that the court of appeals must also recon-
sider its decision concerning the availability of punitive dam-
ages for claims proceeding under state law.

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as: 590 U. S. 418 (2020)
431
Opinion of the Court
The judgment of the court of appeals with respect to puni-
tive
damages is vacated. The case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Justice Kavanaugh took no part in the consideration or
decision of this case.

Reporter’s Note
The next page is purposely numbered 901. The numbers between 431
and 901 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the offcial cita-
tions available upon publication of the preliminary prints of the United
States Reports.

ORDERS
FOR APRIL 20 THROUGH
MAY 29, 2020
April 20, 2020
Certiorari Granted—Vacated and Remanded
No. 19–5133. Brown v. Barr, Attorney General of the
United States. C. A. 11th Cir. Motion of petitioner for leave
to proceed in forma pauperis granted. Certiorari granted, judg-
ment vacated, and case remanded for further consideration in
light of the confession of error by the Solicitor General in his
brief for respondent fled on March 6, 2020.
No. 19–6220. Bronsozian v. United States. C. A. 9th Cir.
Motion of petitioner for leave to proceed in forma pauperis
granted. Certiorari granted, judgment vacated, and case re-
manded for further consideration in light of pending application
to vacate the judgment and dismiss the indictment. Reported
below: 764 Fed. Appx. 633.
Certiorari Dismissed
No. 19–7619. Wimbush v. Conway et al. C. A. 11th Cir.
Motion of petitioner for leave to proceed in forma pauperis de-
nied, and certiorari dismissed. See this Court's Rule 39.8. Re-
ported below: 768 Fed. Appx. 958.
No. 19–7922. Rendelman v. True, Warden. C. A. 7th Cir.
Motion of petitioner for leave to proceed in forma pauperis de-
nied, and certiorari dismissed. See this Courts Rule 39.8. As
petitioner has repeatedly abused this Court's process, the Clerk
is directed not to accept any further petitions in noncriminal mat-
ters from petitioner unless the docketing fee required by Rule
38(a) is paid and the petition is submitted in compliance with Rule
33.1. See Martin v. District of Columbia Court of Appeals, 506
U. S. 1 (1992) (per curiam).
Miscellaneous Orders
No. 19M118. Murphy v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
901

902 OCTOBER
TERM, 2019
April 20, 2020 590 U. S.
sion. Motion to direct the Clerk to fle petition for writ of certio-
rar
i denied.
No. 19M128. Matthews v. Braun, Warden. Motion to di-
rect the Clerk to fle petition for writ of certiorari out of time
denied.
No. 19M129. Kaneka Corp. v. Xiamen Kingdomway Group
Co. et al. Motion for leave to fle petition for writ of certiorari
with supplemental appendix under seal granted.
No. 18–540. Rutledge, Attorney General of Arkansas
v. Pharmaceutical Care Management Assn. C. A. 8th Cir.
[Certiorari granted, 589 U. S. 1127.] Motion of the Solicitor Gen-
eral for leave to participate in oral argument as amicus curiae
and for divided argument granted.
No. 18–587. Department of Homeland Security et al. v.
Regents of the University of California et al. C. A. 9th
Cir. [Certiorari granted, 588 U. S. 919];
No. 18–588. Trump, President of the United States,
et al. v. National Association for the Advancement of
Colored People et al. C. A. D. C. Cir. [Certiorari granted,
588 U. S. 919]; and
No. 18–589. Wolf, Acting Secretary of Homeland Secu-
rity, et al. v. Batalla Vidal et al. C. A. 2d Cir. [Certiorari
granted sub nom. McAleenan v. Batalla Vidal, 588 U. S. 919.]
Motion of respondents Martin Jonathan Batalla Vidal et al. in No.
18–589 for leave to fle a supplemental brief after oral argument
granted.
No. 19–368. Ford Motor Co. v. Montana Eighth Judicial
District Court et al. Sup. Ct. Mont.; and
No. 19–369. Ford Motor Co. v. Bandemer. Sup. Ct. Minn.
[Certiorari granted, 589 U. S. 1164.] Motion of the Solicitor Gen-
eral for leave to participate in oral argument as amicus curiae
and for divided argument denied. Motion of Minnesota et al. for
leave to participate in oral argument as amici curiae and for
divided argument denied.
No. 19–431. Little Sisters of the Poor Saints Peter and
Paul Home v. Pennsylvania et al.; and
No. 19 – 454. Trump, President of the United States,
et al. v. Pennsylvania et al. C. A. 3d Cir. [Certiorari

ORDERS 903
590 U. S.
Apr
il 20, 2020
granted, 589 U. S. 1165.] Motion of the Solicitor General for di-
v
ided argument granted.
No. 19–518. Colorado Department of State v. Baca et al.
C. A. 10th Cir. [Certiorari granted, 589 U. S. 1165.] Motion of
petitioner to dispense with printing joint appendix granted.
No. 19–5410. Borden v. United States. C. A. 6th Cir.
[Certiorari granted, 589 U. S. 1251.] Motion of petitioner to dis-
pense with printing joint appendix granted.
No. 19–6836. Wimbush v. Mickens, Warden. Sup. Ct. Ga.
Motion of petitioner for reconsideration of order denying leave to
proceed in forma pauperis [589 U. S. 1196] denied.
No. 19–7189. Moore v. United States. C. A. 5th Cir. Mo-
tion of petitioner for reconsideration of order denying leave to
proceed in forma pauperis [589 U. S. 1250] denied.
No. 19–7191. Baker v. Macy’s Florida Stores, LLC. Dist.
Ct. App. Fla., 4th Dist.; and
No. 19–7629. Hill-Lomax v. Vittetoe et al. Sup. Ct. Iowa.
Motions of petitioners for leave to proceed in forma pauperis
denied. Petitioners are allowed until May 11, 2020, within which
to pay the docketing fees required by this Court's Rule 38(a).
No. 19–7200. Adams v. Calhoun County, Michigan, et al.
C. A. 6th Cir. Motion of petitioner for reconsideration of order
denying leave to proceed in forma pauperis [589 U. S. 1196]
denied.
No. 19–8102. In re White. Petition for writ of habeas cor-
pus denied.
No. 19–1090. In re Bishay;
No. 19–7691. In re Starks; and
No. 19–7902. In re Moon. Petitions for writs of mandamus
denied.
No. 19–7658. In re Strange. Petition for writ of mandamus
and/or prohibition denied.
Certiorari Granted
No. 19–783. Van Buren v. United States. C. A. 11th Cir.
Certiorari granted. Reported below: 940 F. 3d 1192.

904 OCTOBER
TERM, 2019
April 20, 2020 590 U. S.
Certiorari Denied
N
o. 19–506. W. M. V. C. et al. v. Barr, Attorney General.
C. A. 5th Cir. Certiorari denied. Reported below: 926 F. 3d 202.
No. 19–587. White v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 920 F. 3d 1109.
No. 19–611. Boucher v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 937 F. 3d 702.
No. 19–643. Hurry et al. v. Financial Industry Regula-
tory Authority, Inc., et al. C. A. 9th Cir. Certiorari denied.
Reported below: 782 Fed. Appx. 600.
No. 19–672. Rams Football Co., LLC, et al. v. St. Louis
Regional Convention and Sports Complex Authority
et al. Ct. App. Mo., Eastern Dist. Certiorari denied. Re-
ported below: 531 S. W. 3d 608.
No. 19–732. Natofsky v. City of New York. C. A. 2d Cir.
Certiorari denied. Reported below: 921 F. 3d 337.
No. 19–794. Macias et al. v. Nichols et al. C. A. 9th Cir.
Certiorari denied. Reported below: 775 Fed. Appx. 845.
No. 19–857. GPI Distributors, Inc. v. Northeast Ohio
Regional Sewer District. Ct. App. Ohio, 8th App. Dist., Cuy-
ahoga County. Certiorari denied. Reported below: 2018-Ohio-
4871.
No. 19–878. Gentile v. Securities and Exchange Commis-
sion. C. A. 3d Cir. Certiorari denied. Reported below: 939
F. 3d 549.
No. 19–893. Waronker v. Hempstead Union Free School
District et al. C. A. 2d Cir. Certiorari denied. Reported
below: 788 Fed. Appx. 788.
No. 19–894. Yamashita et al. v. Scholastic Inc. C. A. 2d
Cir. Certiorari denied. Reported below: 936 F. 3d 98.
No. 19–967. Wood v. Missouri. Sup. Ct. Mo. Certiorari de-
nied. Reported below: 580 S. W. 3d 566.
No. 19–984. Mazie Slater Katz & Freeman, LLC v. Com-
mon Benet Fee and Cost Committee. C. A. 4th Cir. Cer-
tiorari denied.

ORDERS 905
590 U. S.
Apr
il 20, 2020
No. 19–993. Rosas v. Austin Independent School Dis-
trict
et al. C. A. 5th Cir. Certiorari denied.
No. 19–1004. Jaffe v. Sherman, United States Congress-
man. C. A. 9th Cir. Certiorari denied.
No. 19–1013. Hsu v. UBS Financial Services, Inc. C. A.
9th Cir. Certiorari denied.
No. 19–1014. Berry v. Delaware County Sheriff’s Of-
ce. C. A. 6th Cir. Certiorari denied.
No. 19–1016. Kirsch v. Redwood Recovery Services, LLC,
et al. Sup. Ct. Nev. Certiorari denied. Reported below: 135
Nev. 672, 451 P. 3d 897.
No. 19–1024. Powe et ux. v. Deutsche Bank National
Trust Co., as Trustee for Residential Asset Securitiza-
tion Trust Series 2004–A7 Mortgage Pass-Through Cer-
ticates 2004–G. C. A. 5th Cir. Certiorari denied. Reported
below: 778 Fed. Appx. 321.
No. 19–1028. Korsunska v. Wolf, Acting Secretary of
Homeland Security. C. A. 9th Cir. Certiorari denied. Re-
ported below: 773 Fed. Appx. 393.
No. 19–1036. Waters v. Paxton, Attorney General of
Texas, et al. C. A. 5th Cir. Certiorari denied. Reported
below: 785 Fed. Appx. 257.
No. 19 –1043. Paul G., a Conserved Adult, By and
Through His Conservator Steve G. v. Monterey Peninsula
Unied School District et al. C. A. 9th Cir. Certiorari
denied. Reported below: 933 F. 3d 1096.
No. 19–1086. Garcia v. Falk et al. C. A. 2d Cir. Certio-
rari denied. Reported below: 788 Fed. Appx. 796.
No. 19–1089. Gindi v. New York City Department of Edu-
cation et al. C. A. 2d Cir. Certiorari denied. Reported
below: 786 Fed. Appx. 280.
No. 19–1110. Board of Regents of the University of
Texas System et al. v. Boston Scientic Corp. C. A. Fed.
Cir. Certiorari denied. Reported below: 936 F. 3d 1365.
No. 19–1113. Rumbin v. DeVos, Secretary of Education,
et al. C. A. 2d Cir. Certiorari denied.

906 OCTOBER
TERM, 2019
April 20, 2020 590 U. S.
No. 19 –1118. Palumbo v. Connecticut. App. Ct. Conn.
Cer
tiorari denied. Reported below: 193 Conn. App. 457, 219 A.
3d 878.
No. 19–1120. Saccameno v. Ocwen Loan Servicing, LLC,
et al. C. A. 7th Cir. Certiorari denied. Reported below: 943
F. 3d 1071.
No. 19–1125. Menzies v. Seyfarth Shaw LLP et al. C. A.
7th Cir. Certiorari denied. Reported below: 943 F. 3d 328.
No. 19–1127. Neff v. United States. C. A. 3d Cir. Certio-
rari denied. Reported below: 787 Fed. Appx. 81.
No. 19 –1133. Hodges v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 778 Fed. Appx. 413.
No. 19–1136. Chong Yim et al. v. City of Seattle, Wash-
ington. Sup. Ct. Wash. Certiorari denied. Reported below:
194 Wash. 2d 651, 451 P. 3d 675.
No. 19–1142. Carter v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 792 Fed. Appx. 366.
No. 19–1146. Centaur, L. L. C. v. River Ventures, L. L. C.
C. A. 5th Cir. Certiorari denied. Reported below: 942 F. 3d 670.
No. 19–1159. Bouchard v. United States. C. A. 2d Cir.
Certiorari denied.
No. 19–1162. Thompson v. United States et al. C. A. 2d
Cir. Certiorari denied. Reported below: 795 Fed. Appx. 15.
No. 19–1163. Rottschaefer v. United States. C. A. 3d
Cir. Certiorari denied. Reported below: 788 Fed. Appx. 832.
No. 19–6055. Flores v. United States. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 901 F. 3d 1150.
No. 19–6413. Langley v. Prince, Warden. C. A. 5th Cir.
Certiorari denied. Reported below: 926 F. 3d 145.
No. 19–6609. Stoner v. United States. C. A. 3d Cir. Cer-
tiorari denied. Reported below: 781 Fed. Appx. 81.
No. 19–6647. Baxter v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 778 Fed. Appx. 617.

ORDERS 907
590 U. S.
Apr
il 20, 2020
No. 19–6696. Myers-McNeil v. North Carolina. Ct. App.
N
. C. Certiorari denied. Reported below: 262 N. C. App. 497,
822 S. E. 2d 317.
No. 19–6927. Ford v. Texas. Ct. Crim. App. Tex. Certio-
rari denied.
No. 19 –7001. Bagcho, aka Chagul, aka Bagchagul v.
United States. C. A. D. C. Cir. Certiorari denied. Reported
below: 923 F. 3d 1131.
No. 19–7003. Wright v. United States. C. A. 8th Cir.
Certiorari denied. Reported below: 776 Fed. Appx. 931.
No. 19–7073. Thomas v. Kenmark Ventures, LLC. C. A.
9th Cir. Certiorari denied.
No. 19–7182. Mancilla Lopez v. United States. C. A. 5th
Cir. Certiorari denied. Reported below: 778 Fed. Appx. 336.
No. 19–7215. Rhodes v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 789 Fed. Appx. 366.
No. 19–7220. Guerrero-Saucedo v. United States. C. A.
5th Cir. Certiorari denied.
No. 19–7236. DeBlase v. Alabama. Ct. Crim. App. Ala.
Certiorari denied.
No. 19–7268. Rupak v. United States. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 772 Fed. Appx. 591.
No. 19–7314. Dawson v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19–7333. Martinez-Paz v. United States. C. A. 5th
Cir. Certiorari denied. Reported below: 780 Fed. Appx. 180.
No. 19–7565. Wright v. Alvarez et al. C. A. 11th Cir.
Certiorari denied.
No. 19–7577. Brown v. Brown. C. A. 3d Cir. Certiorari de-
nied. Reported below: 775 Fed. Appx. 722.
No. 19–7579. Barry v. Perkins et al. C. A. 2d Cir. Cer-
tiorari denied.
No. 19–7592. McAllister v. Maltano et al. C. A. 4th
Cir. Certiorari denied. Reported below: 776 Fed. Appx. 183.

908 OCTOBER
TERM, 2019
April 20, 2020 590 U. S.
No. 19–7596. McDuffy-Johnson v. Lane. C. A. 5th Cir.
Cer
tiorari denied.
No. 19–7601. Garrett v. Madder et al. C. A. 9th Cir.
Certiorari denied.
No. 19–7611. Johnson v. North Carolina. Ct. App. N. C.
Certiorari denied.
No. 19–7612. Sims v. Wells Fargo Bank, N. A., et al.
C. A. 11th Cir. Certiorari denied. Reported below: 781 Fed.
Appx. 884.
No. 19–7615. Vukich v. Unied Judicial System of Penn-
sylvania. C. A. 3d Cir. Certiorari denied. Reported below:
778 Fed. Appx. 79.
No. 19–7632. Bolen v. Hooks, Secretary, North Carolina
Department of Public Safety. C. A. 4th Cir. Certiorari de-
nied. Reported below: 785 Fed. Appx. 143.
No. 19–7641. Yusong Gong v. University of Michigan
et al. C. A. 6th Cir. Certiorari denied.
No. 19–7642. Karnofel v. Superior Waterproong, Inc.
Ct. App. Ohio, 11th App. Dist., Trumbull County. Certiorari de-
nied. Reported below: 2019-Ohio-1409.
No. 19–7647. Castillo v. Nevada (Reported below: 135 Nev.
126, 442 P. 3d 558); and Doyle v. Nevada (135 Nev. 637, 448
P. 3d 552). Sup. Ct. Nev. Certiorari denied.
No. 19–7649. Caro v. California. Sup. Ct. Cal. Certiorari
denied. Reported below: 7 Cal. 5th 463, 442 P. 3d 316.
No. 19–7655. Worrell v. Emigrant Mortgage Co. et al.
C. A. 11th Cir. Certiorari denied. Reported below: 772 Fed.
Appx. 842.
No. 19–7668. Herran v. Indiana. Ct. App. Ind. Certiorari
denied. Reported below: 129 N. E. 3d 836.
No. 19–7669. Mattison v. Willis et al. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 774 Fed. Appx. 800.
No. 19–7673. El Bey, fka Warren v. Weaver et al. C. A.
11th Cir. Certiorari denied.

ORDERS 909
590 U. S.
Apr
il 20, 2020
No. 19–7678. El Bey, fka Warren v. Doughtery County
St
ate Court et al. C. A. 11th Cir. Certiorari denied.
No. 19–7680. Howard v. Nevada. Sup. Ct. Nev. Certiorari
denied. Reported below: 135 Nev. 657, 448 P. 3d 567.
No. 19–7683. Blacher v. California. Sup. Ct. Cal. Certio-
rari denied.
No. 19–7686. Buford v. Laborers’ International Union
Local 269 et al. C. A. 7th Cir. Certiorari denied. Reported
below: 787 Fed. Appx. 341.
No. 19–7687. Palacios Plata v. Davis, Director, Texas De-
partment of Criminal Justice, Correctional Institutions
Division. C. A. 5th Cir. Certiorari denied.
No. 19–7692. R. A. S. v. Montgomery County Children
and Youth Services. Super. Ct. Pa. Certiorari denied. Re-
ported below: 221 A. 3d 1264.
No. 19–7700. McCain v. A. F. Evans Co., Inc., et al. Ct.
App. Cal., 3d App. Dist. Certiorari denied.
No. 19–7703. Lee v. Kelley, Director, Arkansas Depart-
ment of Correction. C. A. 8th Cir. Certiorari denied.
No. 19–7704. Massengale v. Municipality of Anchorage,
Alaska, et al. C. A. 9th Cir. Certiorari denied.
No. 19–7710. Young v. Jackson-Mitchell, Warden. C. A.
6th Cir. Certiorari denied.
No. 19–7712. Jaramillo v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
sion. C. A. 5th Cir. Certiorari denied.
No. 19–7717. Wilson v. Inch, Secretary, Florida Depart-
ment of Corrections. Sup. Ct. Fla. Certiorari denied.
No. 19–7724. Barker v. Texas. Ct. App. Tex., 1st Dist.
Certiorari denied.
No. 19–7725. Conrad v. United States. C. A. 8th Cir.
Certiorari denied.
No. 19–7728. English v. Energy Future Holdings Corp.
et al. C. A. 3d Cir. Certiorari denied. Reported below: 785
Fed. Appx. 945.

910 OCTOBER
TERM, 2019
April 20, 2020 590 U. S.
No. 19–7736. Woods v. Washington Metropolitan Area
Transit
Authority et al. C. A. 4th Cir. Certiorari denied.
Reported below: 785 Fed. Appx. 188.
No. 19–7746. Runnels v. Texas. Sup. Ct. Tex. Certiorari
denied.
No. 19–7748. Souffrant v. Kauffman, Superintendent,
State Correctional Institution at Huntingdon, et al.
C. A. 3d Cir. Certiorari denied.
No. 19–7758. Lin Ouyang v. Achem Industry America,
Inc. Ct. App. Cal., 2d App. Dist., Div. 4. Certiorari denied.
No. 19–7763. Bernier v. Holland, Warden, et al. C. A.
4th Cir. Certiorari denied. Reported below: 773 Fed. Appx. 139.
No. 19–7766. Garcia v. Lacey et al. Ct. App. Cal., 5th App.
Dist. Certiorari denied.
No. 19–7767. Torres Ortega v. Florida Attorney Gen-
eral et al. C. A. 11th Cir. Certiorari denied.
No. 19–7783. Martin v. Inch, Secretary, Florida Depart-
ment of Corrections. Sup. Ct. Fla. Certiorari denied.
No. 19–7787. McNeal v. Ervin et al. C. A. 9th Cir. Cer-
tiorari denied.
No. 19–7795. Foster v. Chapman, Warden. C. A. 6th Cir.
Certiorari denied.
No. 19–7801. Barstad v. Washington Department of Cor-
rections et al. C. A. 9th Cir. Certiorari denied.
No. 19–7809. Walters v. Saul, Commissioner of Social Se-
curity. C. A. 9th Cir. Certiorari denied.
No. 19–7842. Clervrain v. United States et al. C. A.
10th Cir. Certiorari denied.
No. 19–7846. Veseli v. Hacker-Agnew, Warden, et al.
C. A. 9th Cir. Certiorari denied.
No. 19–7847. Watts v. Tennessee. Ct. Crim. App. Tenn.
Certiorari denied.

ORDERS 911
590 U. S.
Apr
il 20, 2020
No. 19–7852. Parson v. United States Air Force et al.
C
. A. 9th Cir. Certiorari denied. Reported below: 776 Fed.
Appx. 462.
No. 19–7858. Ballard v. Clark, Superintendent, State
Correctional Institution at Albion, et al. C. A. 3d Cir.
Certiorari denied.
No. 19–7868. Turner v. Kemna. C. A. 8th Cir. Certiorari
denied.
No. 19–7878. Ramon Santillan v. United States. C. A.
8th Cir. Certiorari denied. Reported below: 944 F. 3d 731.
No. 19 –7879. Rivera-Carrasquillo et al. v. United
States. C. A. 1st Cir. Certiorari denied. Reported below: 933
F. 3d 33.
No. 19–7908. Prunty v. Inch, Secretary, Florida Depart-
ment of Corrections. C. A. 11th Cir. Certiorari denied.
No. 19–7918. Harris v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 790 Fed. Appx. 673.
No. 19 –7927. Newcomb v. Inch, Secretary, Florida
Department of Corrections, et al. C. A. 11th Cir. Certio-
rari denied.
No. 19 –7928. Prince v. Moody, At torney General of
Florida, et al. C. A. 11th Cir. Certiorari denied.
No. 19–7930. Pearson v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 940 F. 3d 1210.
No. 19–7931. Lopez v. United States. C. A. 5th Cir. Cer-
tiorari denied. Reported below: 786 Fed. Appx. 494.
No. 19–7933. Bogard v. United States. C. A. 9th Cir.
Certiorari denied.
No. 19–7945. Aguedo v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 792 Fed. Appx. 764.
No. 19–7946. Greineder v. Medeiros, Superintendent,
Massachuset ts Correctional Institution at Norfolk.
C. A. 1st Cir. Certiorari denied.

912 OCTOBER
TERM, 2019
April 20, 2020 590 U. S.
No. 19–7947. Floyd v. United States. C. A. 9th Cir. Cer-
ti
orari denied.
No. 19–7951. Taylor v. Florida. Dist. Ct. App. Fla., 2d Dist.
Certiorari denied. Reported below: 287 So. 3d 527.
No. 19–7952. Thompson v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 945 F. 3d 340.
No. 19–7956. Tsai v. Wilkie, Secretary of Veterans Af-
fairs. C. A. 1st Cir. Certiorari denied.
No. 19–7960. Green v. United States. C. A. 5th Cir. Cer-
tiorari denied. Reported below: 787 Fed. Appx. 844.
No. 19–7985. Hooper v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 783 Fed. Appx. 433.
No. 19–7986. Hamm v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 952 F. 3d 728.
No. 19–7987. Hambright v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 944 F. 3d 565.
No. 19–7993. Sway v. United States. C. A. 11th Cir. Cer-
tiorari denied.
No. 19–7998. Montanez v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 797 Fed. Appx. 145.
No. 19–7999. Parker v. United States. C. A. 9th Cir. Cer-
tiorari denied.
No. 19–8002. Herrera v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 798 Fed. Appx. 403.
No. 19–8005. Garcia v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 778 Fed. Appx. 779.
No. 19–8008. Fontanez v. Coakley, Warden. C. A. 4th Cir.
Certiorari denied. Reported below: 778 Fed. Appx. 251.
No. 19–8010. Chhim v. City of Houston, Texas, et al.
C. A. 5th Cir. Certiorari denied. Reported below: 777 Fed.
Appx. 780.
No. 19–8014. Artis v. United States. C. A. 1st Cir. Cer-
tiorari denied. Reported below: 945 F. 3d 578.

ORDERS 913
590 U. S.
Apr
il 20, 2020
No. 19–8015. Cruz v. United States. C. A. 11th Cir. Cer-
ti
orari denied. Reported below: 798 Fed. Appx. 346.
No. 19–8016. Vega, aka Johnson v. United States. C. A.
9th Cir. Certiorari denied. Reported below: 787 Fed. Appx. 945.
No. 19–8019. Sifuentes v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 945 F. 3d 865.
No. 19–8020. Jordan v. United States. C. A. 5th Cir. Cer-
tiorari denied. Reported below: 945 F. 3d 245.
No. 19–8027. Gomez-Carrasquillo v. United States. C. A.
1st Cir. Certiorari denied.
No. 19–8030. Bateman v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 780 Fed. Appx. 355.
No. 19–8031. Gregg v. United States District Court for
the District of South Dakota. C. A. 8th Cir. Certiorari
denied.
No. 19–8034. Atkinson v. United States. C. A. 6th Cir.
Certiorari denied.
No. 19–8036. Jackson v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 945 F. 3d 315.
No. 19–8038. James v. United States. C. A. 8th Cir. Cer-
tiorari denied. Reported below: 790 Fed. Appx. 837.
No. 19–8041. Jamison v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 787 Fed. Appx. 975.
No. 19–8048. Goodman v. United States. C. A. 2d Cir.
Certiorari denied. Reported below: 790 Fed. Appx. 238.
No. 19–8049. Ruff v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 788 Fed. Appx. 211.
No. 19–8053. Rodriguez v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 789 Fed. Appx. 205.
No. 19–8054. Vineyard v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 945 F. 3d 1164.
No. 19–8055. Jones v. United States. C. A. 2d Cir. Cer-
tiorari denied. Reported below: 777 Fed. Appx. 18.

914 OCTOBER
TERM, 2019
April 20, 2020 590 U. S.
No. 19–8056. Matalka v. United States. C. A. 5th Cir.
Cer
tiorari denied. Reported below: 788 Fed. Appx. 273.
No. 19–8065. Vasquez-Rivera v. United States. C. A. 1st
Cir. Certiorari denied.
No. 19–8066. Lara-Cervantes v. United States. C. A. 5th
Cir. Certiorari denied. Reported below: 788 Fed. Appx. 299.
No. 19–8071. Earley v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 787 Fed. Appx. 478.
No. 19–8072. Cervantes v. Biter, Warden. C. A. 9th Cir.
Certiorari denied.
No. 19–8079. Elk Shoulder v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 788 Fed. Appx. 488.
No. 19–8080. Solorzano v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 778 Fed. Appx. 480.
No. 19–8082. Willix v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19– 8083. Washington v. Mississippi. Sup. Ct. Miss.
Certiorari denied.
No. 19 – 8094. Motupalli v. Iancu, Director, United
States Patent and Trademark Ofce. C. A. Fed. Cir. Cer-
tiorari denied. Reported below: 791 Fed. Appx. 895.
No. 19–8097. Reed v. United States. C. A. 3d Cir. Certio-
rari denied. Reported below: 796 Fed. Appx. 119.
No. 19–8098. Carlos Rodriguez v. United States. C. A.
9th Cir. Certiorari denied. Reported below: 789 Fed. Appx. 56.
No. 19–8100. Rodriguez-Luca v. United States. C. A. 6th
Cir. Certiorari denied.
No. 18–1577. Pennsylvania v. Adams. Sup. Ct. Pa. Motion
of respondent for leave to proceed in forma pauperis granted.
Certiorari denied. Reported below: 651 Pa. 440, 205 A. 3d 1195.
No. 19–512. Robinson v. Department of Education. C. A.
4th Cir. Certiorari denied. Reported below: 917 F. 3d 799.

ORDERS 915
590 U. S.
Thomas,
J., dissenting
Justice Thomas, with whom Justice Kavanaugh joins,
dissenti
ng.
This petition presents the question whether the general civil
enforcement provisions of the Fair Credit Reporting Act (FCRA),
15 U. S. C. §§ 1681n–1681o, waive the Federal Government's sover-
eign immunity for FCRA civil enforcement suits. Because this
important question has divided the Courts of Appeals, I would
grant review.
I
Petitioner claims to be the victim of identity theft. After he
unsuccessfully sought to remove an allegedly fraudulent student
loan from his credit history, he fled suit against the lender—
the United States Department of Education—seeking damages
for violations of the FCRA. Under the FCRA's general civil
enforcement provisions, “[a]ny person” who willfully or negli-
gently fails “to comply with any requirement imposed under
[§ 1681 et seq.] is liable to [the] consumer” for damages. §§ 1681n–
1681o. The statute defnes “person” to include “any . . . govern-
ment or governmental subdivision or agency.” § 1681a(b).
The Department of Education moved to dismiss petitioner's
complaint, asserting federal sovereign immunity. The District
Court granted the motion, and the Fourth Circuit affrmed. Re-
lying on the interpretive presumption that “ `person' does not
include the sovereign,” Vermont Agency of Natural Resources v.
United States ex rel. Stevens, 529 U. S. 765, 780 (2000), the Fourth
Circuit concluded that, despite the statutory defnition, it could
plausibly read “person” to not include the Federal Government.
Moreover, the court observed that the opposite interpretation
would lead to absurdities in other FCRA enforcement provisions.
For example, if the Federal Government were a “person,” it could
be liable under the FCRA for federal criminal charges. See 917
F. 3d 799, 804 (CA4 2019) (contemplating “a court's puzzlement
upon seeing a criminal case captioned `United States v. United
States' ”). And the court noted that petitioner's reading would
render superfuous a more limited sovereign-immunity waiver in
one of the FCRA's specifc civil enforcement provisions, § 1681u( j),
which makes “[a]ny agency or department of the United States
. . . liable to [a] consumer” for damages when it unlawfully dis-
closes that consumer's credit information to the Federal Bureau

916 OCTOBER
TERM, 2019
Thomas, J., dissenting 590 U. S.
of Investigation. Comparing this express language and that of
other
sovereign-immunity waivers recognized by this Court with
the language of § 1681n and § 1681o, the Fourth Circuit deter-
mined that the FCRA's general civil enforcement provisions do
not clearly waive the Federal Government's sovereign immunity.
II
As both parties acknowledge, the Fourth Circuit's decision in
this case deepened a pre-existing Circuit split. While the Ninth
Circuit agrees that the FCRA's general civil enforcement provi-
sions do not waive federal sovereign immunity, Daniel v. Na-
tional Park Serv., 891 F. 3d 762 (2018), the Seventh Circuit has
reached the opposite conclusion, Bormes v. United States, 759
F. 3d 793 (2014). Thus, borrowers of federal loans in Illinois,
Indiana, and Wisconsin have access to a cause of action against
the Federal Government while borrowers with the same types of
loans in 14 other States are barred from suit.
Because of the Court's inaction, this disparity will persist.
Contrary to the Department's speculation, this Circuit split shows
no signs of resolving itself. In fact, the Seventh Circuit recently
reaffrmed its position in Meyers v. Oneida Tribe of Wis., 836
F. 3d 818 (2016). In holding that the FCRA's general civil en-
forcement provisions do not abrogate tribal sovereign immunity,
the court reaffrmed and distinguished its earlier decision in
Bormes, which recognized a waiver of federal sovereign immu-
nity. 836 F. 3d, at 826. In that court's view, the ordinary mean-
ing of “government,” as used in the FCRA's defnition of “person,”
clearly encompasses the Federal Government but does not include
Indian tribes. Ibid. Thus, absent intervention from this Court,
or a majority of active judges on the Seventh Circuit, the Courts
of Appeals will remain in confict.
III
The question whether sovereign immunity has been waived is
one of critical importance to any functioning government, but
particularly to a democratic republic. This is especially true
when it comes to suits for money damages, because “the allocation
of scarce resources among competing needs and interests lies at
the heart of the political process.” Alden v. Maine, 527 U. S.
706, 751 (1999). Were the Federal Government to be stripped of
sovereign immunity without consent, “private suits for money

ORDERS 917
590 U. S.
Apr
il 20, 2020
damages would place unwarranted strain on the [Government's]
abi
lity to govern in accordance with the will of [its] citizens.”
Id., at 750–751.
These ramifcations are magnifed here because the Federal
Government's potential liability under the FCRA is substantial.
As the Nation's primary student-loan lender, it is one of the
largest furnishers of credit information in the country. According
to petitioner, the Federal Government is responsible for 90 per-
cent of student loans nationwide in a market that has tripled
between 2007 and 2018, from $500 billion to a staggering $1.5
trillion. Pet. for Cert. 39. A waiver of sovereign immunity
would thus have a signifcant impact on the public fsc.
***
“One of this Court's primary functions is to resolve `important
matter[s]' on which the courts of appeals are `in confict.' ” Gee
v. Planned Parenthood of Gulf Coast, Inc., 586 U. S. 1057 (2018)
(Thomas, J., dissenting from denial of certiorari) (quoting this
Court's Rule 10(a)). Because the question presented in this peti-
tion has divided the Circuits and concerns a matter of great im-
portance, it warrants our review. I respectfully dissent from the
denial of certiorari.
No. 19–514. Jenkins v. Nebraska. Sup. Ct. Neb. Motion of
Promise of Justice Initiative et al. for leave to fle brief as amici
curiae granted. Certiorari denied. Reported below: 303 Neb.
676, 931 N. W. 2d 851.
No. 19 – 627. Islas-Veloz v. Barr, At torney General.
C. A. 9th Cir. Motion of Law Professors for leave to fle brief
as amici curiae granted. Certiorari denied. Reported below:
914 F. 3d 1249.
No. 19–739. Barbour et al. v. Halliburton Co. et al.
C. A. 5th Cir. Motion of Patrick A. Juneau, New Class Claims
Administrator of the Punitive Damages Settlement Program, for
leave to fle brief as amicus curiae granted. Certiorari denied.
Reported below: 934 F. 3d 434.
Rehearing Denied
No. 19–488. Waltner et ux. v. Commissioner of Internal
Revenue, 589 U. S. 1202;

918 OCTOBER
TERM, 2019
April 20, 21, 24, 2020 590 U. S.
No. 19–703. Davis v. MTGLQ Investors, L. P., 589 U. S. 1203;
N
o. 19–713. Nunu v. Risk et al., 589 U. S. 1204;
No. 19–823. Pearsall v. Guernsey, 589 U. S. 1207;
No. 19–880. Kemp v. Georgia State University Admis-
sions Ofce et al., 589 U. S. 1208;
No. 19–5596. Latham v. United States, 589 U. S. 1141;
No. 19–6590. Whitten v. Atyia et al., 589 U. S. 1169;
No. 19–6630. Hunter v. Murdoch et al., 589 U. S. 1169;
No. 19–6695. Rigwan v. Neus; and Rigwan v. Neus et al.,
589 U. S. 1181;
No. 19–6794. Smith v. St. Joseph’s/Candler Health Sys-
tem, Inc., 589 U. S. 1212;
No. 19–6980. Williamson v. City of Wichita, Kansas, 589
U. S. 1217;
No. 19–7077. Sanchez v. California et al., 589 U. S. 1220;
No. 19–7166. Karnofel v. Superior Waterproong, Inc.,
589 U. S. 1256; and
No. 19–7275. Boyett v. New Mexico, 589 U. S. 1226. Peti-
tions for rehearing denied.
No. 19–7119. Bell v. Ransom, Superintendent, State Cor-
rectional Institution at Dallas, et al., 589 U. S. 1245. Pe-
tition for rehearing denied. Justice Alito took no part in the
consideration or decision of this petition.
April 21, 2020
Dismissals Under Rule 46
No. 19–6932. McDonald v. United States. C. A. 5th Cir.
Cer ti orar i dismissed under th is Cour t's Ru le 46. Repor ted
below: 773 Fed. Appx. 788.
No. 19–7626. Rarden v. Ohio. Ct. App. Ohio, 12th App.
Dist., Butler County. Certiorari dismissed under this Court's
Rule 46. Reported below: 2019-Ohio-2161.
April 24, 2020
Miscellaneous Orders
No. 19A785. Department of Homeland Security et al. v.
New York et al. D. C. S. D. N. Y. Motion to temporarily lift
or modify stay [589 U. S. 1173] denied. This order does not pre-
clude fling in the District Court as counsel considers appropriate.

ORDERS 919
590 U. S.
Apr
il 24, 27, 2020
No. 19A905. Wolf, Acting Secretary of Homeland Secu-
rity
, et al. v. Cook County, Illinois, et al. D. C. N. D. Ill.
Motion to temporarily lift or modify stay [589 U. S. 1190] denied.
This order does not preclude fling in the District Court as counsel
considers appropriate.
April 27, 2020
Certiorari Granted—Vacated and Remanded
No. 18–999. Atlanta Gas Light Co. v. Bennett Regula-
tor Guards, Inc. C. A. Fed. Cir. Reported below: 905 F. 3d
1311; and
No. 18–1027. Superior Communications, Inc. v. Voltstar
Technologies, Inc. C. A. Fed. Cir. Certiorari granted, judg-
ments vacated, and cases remanded for further consideration in
light of Thryv, Inc. v. Click-To-Call Technologies, LP, 590 U. S.
45 (2020).
No. 18–1585. Nagi v. Louisiana. Ct. App. La., 1st Cir. Cer-
tiorari granted, judgment vacated, and case remanded for further
consideration in light of Ramos v. Louisiana, 590 U. S. 83 (2020).
Justice Thomas would deny the petition for writ of certiorari.
Reported below: 2017–1257 (La. App. 1 Cir. 4/9/18).
Justice Alito, concurring.
In this and in all other cases in which the Court grants, vacates,
and remands in light of Ramos v. Louisiana, I concur in the judg-
ment on the understanding that the Court is not deciding or express-
ing a view on whether the question was properly raised below but is
instead leaving that question to be decided on remand.
No. 18–7488. Lewis v. Louisiana. Ct. App. La., 4th Cir.
Reported below: 2016–0224 (La. App. 4 Cir. 12/29/16), 209 So. 3d
202;
No. 18–8748. Alridge v. Louisiana. Ct. App. La., 4th Cir.
Reported below: 2017–0231 (La. App. 4 Cir. 5/23/18), 249 So. 3d 260;
No. 18–9130. Dick v. Oregon. Ct. App. Ore.;
No. 18–9693. Sheppard v. Louisiana. Ct. App. La., 1st Cir.
Reported below: 2018–0086 (La. App. 1 Cir. 9/21/18);
No. 18–9787. Crehan v. Louisiana. Ct. App. La., 1st Cir.
Reported below: 2018–0746 (La. App. 1 Cir. 11/5/18);
No. 18–9821. Heard v. Louisiana. Ct. App. La., 3d Cir.
Reported below: 2018–236 (La. App. 3 Cir. 11/7/18), 258 So. 3d
875; and

920 OCTOBER
TERM, 2019
April 27, 2020 590 U. S.
No. 19–6679. Johnson v. Louisiana. Ct. App. La., 4th Cir.
Repor
ted below: 2018–0409 (La. App. 4 Cir. 3/13/19), 266 So. 3d
969. Motions of petitioners for leave to proceed in forma pau-
peris granted. Certiorari granted, judgments vacated, and cases
remanded for further consideration in light of Ramos v. Louisi-
ana, 590 U. S. 83 (2020).
Justice Alito, concurring.
In this and in all other cases in which the Court grants, vacates,
and remands in light of Ramos v. Louisiana, I concur in the judg-
ment on the understanding that the Court is not deciding or express-
ing a view on whether the question was properly raised below but is
instead leaving that question to be decided on remand.
No. 18–8897. Dyson v. Louisiana. Ct. App. La., 3d Cir.
Reported below: 2017–21 (La. App. 3 Cir. 5/17/17), 220 So. 3d 785;
No. 18–9463. Brooks v. Louisiana. Ct. App. La., 1st Cir. Re-
ported below: 2017–1755 (La. App. 1 Cir. 9/24/18), 258 So. 3d 944;
No. 19–5301. Richards v. Louisiana. Ct. App. La., 3d Cir.
Reported below: 2017–1135 (La. App. 3 Cir. 6/6/18), 247 So. 3d
878; and
No. 19–5989. Victor v. Louisiana. Ct. App. La., 5th Cir.
Reported below: 15–339 (La. App. 5 Cir. 5/26/16), 195 So. 3d 128.
Motions of petitioners for leave to proceed in forma pauperis
granted. Certiorari granted, judgments vacated, and cases re-
manded for further consideration in light of Ramos v. Louisiana,
590 U. S. 83 (2020). Justice Thomas would deny the petitions
for writs of certiorari.
Justice Alito, concurring.
In this and in all other cases in which the Court grants, vacates,
and remands in light of Ramos v. Louisiana, I concur in the judg-
ment on the understanding that the Court is not deciding or express-
ing a view on whether the question was properly raised below but is
instead leaving that question to be decided on remand.
No. 19–741. Estate of Klieman, By and Through Its Ad-
ministrator, Kesner, et al. v. Palestinian Authority, aka
Palestinian Interim Self-Government Authority, et al.
C. A. D. C. Cir. Certiorari granted, judgment vacated, and case
remanded for further consideration in light of the Promoting Se-
curity and Justice for Victims of Terrorism Act of 2019, 133 Stat.

ORDERS 921
590 U. S.
Apr
il 27, 2020
3082. Justice Kavanaugh took no part in the consideration or
decisi
on of this petition. Reported below: 923 F. 3d 1115.
No. 19–764. Sokolow et al. v. Palestine Liberation Orga-
nization et al. C. A. 2d Cir. Motion of Senator Charles Grass-
ley et al. for leave to fle brief as amici curiae granted. Certio-
rari granted, judgment vacated, and case remanded for further
consideration in light of the Promoting Security and Justice for
Victims of Terrorism Act of 2019, 133 Stat. 3082. Reported
below: 925 F. 3d 570.
Certiorari Dismissed
No. 19–7806. Fox v. United States Postal Service et al.
C. A. 6th Cir. Motion of petitioner for leave to proceed in forma
pauperis denied, and certiorari dismissed. See this Court's Rule
39.8. As petitioner has repeatedly abused this Court's process,
the Clerk is directed not to accept any further petitions in non-
criminal matters from petitioner unless the docketing fee required
by Rule 38(a) is paid and the petition is submitted in compliance
with Rule 33.1. See Martin v. District of Columbia Court of
Appeals, 506 U. S. 1 (1992) (per curiam).
No. 19–8133. Martinez v. United States. C. A. 6th Cir.
Motion of petitioner for leave to proceed in forma pauperis de-
nied, and certiorari dismissed. See this Court's Rule 39.8.
Miscellaneous Orders*
No. 19M130. Roberson v. Jackson, Warden, et al.; and
No. 19M131. Johnson v. Morgan, Warden, et al. Motions
to direct the Clerk to fle petitions for writs of certiorari out of
time denied.
No. 19–715. Trump et al. v. Mazars USA, LLP, et al.
C. A. D. C. Cir.; and
No. 19–760. Trump et al. v. Deutsche Bank AG et al.
C. A. 2d Cir. [Certiorari granted, 589 U. S. 1120.] The parties
and the Solicitor General are directed to fle supplemental letter
*For the Court's orders prescribing amendments to the Federal Rules of
Appellate Procedure, see 590 U. S. 1019; amendments to the Federal Rules
of Bankruptcy Procedure, see 590 U. S. 1025; an amendment to the Federal
Rules of Civil Procedure, see 590 U. S. 1033; and an amendment to the Fed-
eral Rules of Evidence, see 590 U. S. 1039.

922 OCTOBER
TERM, 2019
April 27, 2020 590 U. S.
briefs addressing whether the political question doctrine or re-
lated
justiciability principles bear on the Court's adjudication of
these cases. Briefs, not to exceed 15 pages, are to be fled simul-
taneously with the Clerk and served upon opposing counsel on or
before 2 p.m., Friday, May 8, 2020.
No. 19–6851. Lasher v. Nebraska State Board of Phar-
macy et al. C. A. 8th Cir. Motion of petitioner for reconsidera-
tion of order denying leave to proceed in forma pauperis [589
U. S. 1196] denied.
No. 19–6874. In re Leonard. Motion of petitioner for recon-
sideration of order denying leave to proceed in forma pauperis
[589 U. S. 1167] denied.
No. 19–7756. In re Deville. Motion of petitioner for leave
to proceed in forma pauperis denied. Petitioner is allowed until
May 18, 2020, within which to pay the docketing fee required by
Rule 38(a).
No. 19–7393. In re Gulbrandson;
No. 19–8163. In re Tanamor-Steffan; and
No. 19–8207. In re Brown. Petitions for writs of habeas cor-
pus denied.
No. 19–7727. In re Davis. Petition for writ of mandamus
denied.
No. 19–7770. In re Williams. Petition for writ of prohibi-
tion denied.
Certiorari Denied
No. 19 – 455. ARRIS International Ltd. v. ChanBond,
LLC, et al. C. A. Fed. Cir. Certiorari denied. Reported
below: 773 Fed. Appx. 605.
No. 19–586. Hollingsworth v. Department of Veterans
Affairs. C. A. Fed. Cir. Certiorari denied. Reported below:
767 Fed. Appx. 1006.
No. 19–687. League of United Latin American Citizens
et al. v. Edwards Aquifer Authority et al. C. A. 5th Cir.
Certiorari denied. Reported below: 937 F. 3d 457.
No. 19–777. Electronic Privacy Information Center v.
Department of Commerce et al. C. A. D. C. Cir. Certiorari
denied. Reported below: 928 F. 3d 95.

ORDERS 923
590 U. S.
Apr
il 27, 2020
No. 19–779. Pierre-Paul v. Barr, At torney General.
C
. A. 5th Cir. Certiorari denied. Reported below: 930 F. 3d 684.
No. 19 –789. Maghreb Petroleum Exploration, S. A.,
et al. v. DeJoria. C. A. 5th Cir. Certiorari denied. Reported
below: 935 F. 3d 381.
No. 19–792. Vugo, Inc. v. City of New York, New York.
C. A. 2d Cir. Certiorari denied. Reported below: 931 F. 3d 42.
No. 19–887. Simon et al. v. Marriott International, Inc.,
et al. C. A. 4th Cir. Certiorari denied.
No. 19–891. Lehmann v. Haims. App. Div., Sup. Ct. N. Y.,
2d Jud. Dept. Certiorari denied. Reported below: 171 App. Div.
3d 1176, 99 N. Y. S. 3d 96.
No. 19–908. Araujo Buleje v. Barr, Attorney General.
C. A. 9th Cir. Certiorari denied.
No. 19–995. Murray v. Mayo Clinic et al. C. A. 9th Cir.
Certiorari denied. Reported below: 934 F. 3d 1101.
No. 19–1034. Mitchell v. Dillahunt. Ct. App. Minn. Cer-
tiorari denied.
No. 19–1047. Weiss, Individually and as Executor of the
Estate of Marsh, Deceased v. Marsh, as Executor of the
Estate of Marsh, Deceased, et al. Ct. App. Cal., 4th App.
Dist., Div. 3. Certiorari denied.
No. 19–1149. UPMC et al. v. United States ex rel. Book-
walter et al. C. A. 3d Cir. Certiorari denied. Reported
below: 946 F. 3d 162.
No. 19–1151. Kumar v. Barr, Attorney General, et al.
C. A. 8th Cir. Certiorari denied. Reported below: 788 Fed.
Appx. 416.
No. 19–1169. Ybarra v. Texas Health and Human Serv-
ices Commission et al. C. A. 5th Cir. Certiorari denied. Re-
ported below: 773 Fed. Appx. 222.
No. 19 –1170. Campbell v. Wolf, Acting Secretary of
Homeland Security. C. A. 4th Cir. Certiorari denied. Re-
ported below: 776 Fed. Appx. 132.

924 OCTOBER
TERM, 2019
April 27, 2020 590 U. S.
No. 19–1174. Kimbrough v. Neal, Superintendent, Indi-
ana
State Prison. C. A. 7th Cir. Certiorari denied. Re-
ported below: 941 F. 3d 879.
No. 19–7052. Callejas Rivera v. United States; Ibara-
Ramos v. United States (Reported below: 785 Fed. Appx. 270);
and Funez Garsilla v. United States (780 Fed. Appx. 191).
C. A. 5th Cir. Certiorari denied.
No. 19–7322. Sanchez-Miranda v. United States. C. A.
5th Cir. Certiorari denied. Reported below: 781 Fed. Appx. 372.
No. 19–7339. Jones v. Wells Fargo Bank, N. A., et al.
C. A. 4th Cir. Certiorari denied. Reported below: 770 Fed.
Appx. 656.
No. 19–7388. Perez v. United States. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 932 F. 3d 782.
No. 19–7410. Mora-Galindo v. United States. C. A. 5th
Cir. Certiorari denied. Reported below: 781 Fed. Appx. 374.
No. 19–7508. Leiser v. Kloth et al. C. A. 7th Cir. Certio-
rari denied. Reported below: 933 F. 3d 696.
No. 19–7701. Kerns v. Wenner. C. A. 9th Cir. Certiorari
denied. Reported below: 773 Fed. Appx. 1009.
No. 19–7702. Jackson v. Berean et al. C. A. 6th Cir. Cer-
tiorari denied.
No. 19–7709. Toth v. Antonacci et al. C. A. 11th Cir.
Certiorari denied. Reported below: 788 Fed. Appx. 688.
No. 19–7715. Castillo-Reyes v. Ingalls et al. Sup. Ct.
Va. Certiorari denied.
No. 19–7721. Parsons v. McDaniel et al. C. A. 4th Cir.
Certiorari denied. Reported below: 784 Fed. Appx. 164.
No. 19–7741. Johnson v. Victoria Fire & Casualty Insur-
ance Co. et al. C. A. 11th Cir. Certiorari denied.
No. 19 –7742. Lewis v. Berry, Warden. C. A. 11th Cir.
Certiorari denied.
No. 19–7769. Wilson v. Shinn, Director, Arizona Depart-
ment of Corrections, et al. C. A. 9th Cir. Cer ti orari
denied.

ORDERS 925
590 U. S.
Apr
il 27, 2020
No. 19–7772. Barron v. Inch, Secretary, Florida Depart-
ment
of Corrections, et al. C. A. 11th Cir. Certiorari
denied.
No. 19 –7774. Muhammad v. Well s Fargo Bank, N. A.
C. A. 7th Cir. Certiorari denied.
No. 19–7779. Garcia v. Texas. Ct. Crim. App. Tex. Certio-
rari denied.
No. 19–7785. Wolf v. Peery, Warden. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 786 Fed. Appx. 680.
No. 19–7788. Corrales Vega v. Horton, Warden. C. A.
6th Cir. Certiorari denied.
No. 19–7789. Klein v. California et al. C. A. 9th Cir.
Certiorari denied.
No. 19–7793. Deuschel v. City of Long Beach, Califor-
nia. Ct. App. Cal., 2d App. Dist., Div. 7. Certiorari denied.
No. 19–7803. Williams v. Kemp, Governor of Georgia,
et al. C. A. 11th Cir. Certiorari denied.
No. 19–7808. Taylor v. Texas. Ct. Crim. App. Tex. Certio-
rari denied.
No. 19 –7818. Benjamin v. Mc Ginley, Superintendent,
State Correctional Institution at Coal Township, et al.
C. A. 3d Cir. Certiorari denied.
No. 19–7837. Slavin v. Residential Rentals, Trustee.
Sup. Ct. N. H. Certiorari denied.
No. 19–7840. Jones v. Errington. C. A. 5th Cir. Certio-
rari denied.
No. 19–7859. Blacher v. California. Sup. Ct. Cal. Certio-
rari denied.
No. 19–7883. Harris v. Arkansas. C. A. 8th Cir. Certio-
rari denied.
No. 19–7889. Rosario-Colon v. Louisiana. Ct. App. La., 1st
Cir. Certiorari denied. Reported below: 2019–0406 (La. App. 1
Cir. 9/27/19), 289 So. 3d 126.

926 OCTOBER
TERM, 2019
April 27, 2020 590 U. S.
No. 19–7891. Rogers v. Barr, Attorney General. C. A.
4th
Cir. Certiorari denied.
No. 19–7893. Roos v. Arkansas. Sup. Ct. Ark. Certiorari
denied. Reported below: 2019 Ark. 360, 588 S. W. 3d 738.
No. 19–7997. Pierre v. Irizarry, Chief Judge, et al.
C. A. 2d Cir. Certiorari denied.
No. 19 – 8040. Meas v. Vidal, Superintendent, Souza-
Baranowski Correctional Center, et al. C. A. 1st Cir.
Certiorari denied.
No. 19–8046. Cervantes v. Montgomery, Warden. C. A.
9th Cir. Certiorari denied.
No. 19 – 8067. Mohammed v. DuPage Legal Assistance
Foundation et al. C. A. 7th Cir. Certiorari denied. Re-
ported below: 781 Fed. Appx. 551.
No. 19– 8076. Galindo v. Cain, Superintendent, Snake
River Correctional Institution. C. A. 9th Cir. Certiorari
denied.
No. 19–8089. Jenkins v. Amsberry. C. A. 9th Cir. Certio-
rari denied.
No. 19–8104. Gonzalez-Arias v. United States. C. A. 1st
Cir. Certiorari denied. Reported below: 946 F. 3d 17.
No. 19–8106. Arteaga Aragon v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 796 Fed. Appx. 409.
No. 19–8109. Bogan v. Brookhart, Warden. C. A. 7th Cir.
Certiorari denied.
No. 19–8110. AlBritton v. Clarke, Director, Virginia De-
partment of Corrections. C. A. 4th Cir. Certiorari denied.
Reported below: 776 Fed. Appx. 122.
No. 19–8111. Broxmeyer v. Ormond, Warden. C. A. 4th
Cir. Certiorari denied. Reported below: 785 Fed. Appx. 147.
No. 19–8113. Andoe v. Biden et al. C. A. 9th Cir. Certio-
rari denied. Reported below: 787 Fed. Appx. 968.
No. 19–8120. Thomas v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 777 Fed. Appx. 462.

ORDERS 927
590 U. S.
Apr
il 27, 2020
No. 19–8121. Thompson v. United States. C. A. 8th Cir.
Cer
tiorari denied. Reported below: 933 F. 3d 971.
No. 19–8129. Bounds v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 941 F. 3d 767.
No. 19–8130. Al-Amin v. Stirling, Director, South Caro-
lina Department of Corrections, et al. Sup. Ct. S. C.
Certiorari denied.
No. 19–8137. Posadas-Gonzalez v. United States. C. A.
5th Cir. Certiorari denied. Reported below: 788 Fed. Appx. 270.
No. 19–8144. Padgett v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 791 Fed. Appx. 51.
No. 19–8145. Cruz v. Betancourt. C. A. 9th Cir. Certio-
rari denied. Reported below: 771 Fed. Appx. 826.
No. 19–8147. Murillo-Morales v. United States. C. A. 2d
Cir. Certiorari denied. Reported below: 792 Fed. Appx. 11.
No. 19–8148. Cole v. United States. C. A. 9th Cir. Cer-
tiorari denied.
No. 19–8160. Rutledge v. Florida. Dist. Ct. App. Fla., 4th
Dist. Certiorari denied. Reported below: 268 So. 3d 173.
Rehearing Denied
No. 19–898. Collins v. Thornton, 589 U. S. 1253;
No. 19–929. Shuman et ux. v. Commissioner of Internal
Revenue, 589 U. S. 1253;
No. 19–6767. True v. Kelley, Director, Arkansas De-
partment of Correction, 589 U. S. 1183;
No. 19–6833. Rowe v. Clark, Superintendent, State Cor-
rectional Institution at Albion, et al., 589 U. S. 1213;
No. 19–6869. Jefferson v. Shinn, Director, Arizona De-
partment of Corrections, et al., 589 U. S. 1214;
No. 19–6909. Rosa v. Rhodes, Warden, 589 U. S. 1170;
No. 19–7058. In re Randall, 589 U. S. 1166;
No. 19–7065. Braspenick v. Johnson Law PLC, 589 U. S.
1219;
No. 19–7096. Smith v. Jackson, 589 U. S. 1220;
No. 19–7135. Hye-Young Park v. Secolsky et al., 589 U. S.
1255;

928 OCTOBER
TERM, 2019
April 27, May 4, 2020 590 U. S.
No. 19–7150. Walton v. Kowalski, Warden, 589 U. S. 1255;
N
o. 19–7154. In re Eaton, 589 U. S. 1201;
No. 19–7498. Sanders v. United States, 589 U. S. 1257; and
No. 19–7502. Peters v. Illinois, 589 U. S. 1258. Petitions
for rehearing denied.
May 4, 2020
Certiorari Granted—Vacated and Remanded
No. 18–268. Kinder Morgan Energy Partners, L. P.,
et al. v. Upstate Forever et al. C. A. 4th Cir. Certiorari
granted, judgment vacated, and case remanded for further consid-
eration in light of County of Maui v. Hawaii Wildlife Fund, 590
U. S. 165 (2020). Reported below: 887 F. 3d 637.
Miscellaneous Orders
No. 19M133. Abdul-Latif v. United States;
No. 19M134. Kee v. Raemisch et al.; and
No. 19M135. Purisima v. City of Philadelphia, Pennsyl-
vania, et al. Motions to direct the Clerk to fle petitions for
writs of certiorari out of time denied.
No. 18–956. Google LLC v. Oracle America, Inc. C. A.
Fed. Cir. [Certiorari granted, 589 U. S. 1066.] The parties are
directed to fle supplemental letter briefs addressing the appro-
priate standard of review for the second question presented, in-
cluding but not limited to the implications of the Seventh Amend-
ment, if any, on that standard. Briefs, not to exceed 10 pages,
are to be fled simultaneously with the Clerk and served upon
opposing counsel on or before 2 p.m., Friday, August 7, 2020.
No. 19–1092. In re TCT Mobile International Ltd.;
No. 19–8161. In re Smith; and
No. 19–8162. In re Smith. Petitions for writs of mandamus
denied.
No. 19–7841. In re Johnson. Petition for writ of mandamus
and/or prohibition denied.
No. 19–7871. In re Woodson. Motion of petitioner for leave
to proceed in forma pauperis denied, and petition for writ of
mandamus and/or prohibition dismissed. See this Court's Rule
39.8. As petitioner has repeatedly abused this Court's process,

ORDERS 929
590 U. S.
May
4, 2020
the Clerk is directed not to accept any further petitions in non-
cr
iminal matters from petitioner unless the docketing fee required
by Rule 38(a) is paid and the petition is submitted in compliance
with Rule 33.1. See Martin v. District of Columbia Court of
Appeals, 506 U. S. 1 (1992) (per curiam).
Certiorari Granted
No. 19 – 930. CIC Services, LLC v. Internal Revenue
Service et al. C. A. 6th Cir. Certiorari granted. Reported
below: 925 F. 3d 247.
No. 19–5807. Edwards v. Vannoy, Warden. C. A. 5th Cir.
Motion of petitioner for leave to proceed in forma pauperis
granted. Certiorari granted limited to the following question:
“Whether this Court's decision in Ramos v. Louisiana, 590 U. S.
83 (2020), applies retroactively to cases on federal collateral
review.”
Certiorari Denied
No. 18–593. StarLink Logistics, Inc. v. ACC, LLC, et al.
Ct. App. Tenn. Certiorari denied.
No. 18–1329. Jobe v. Barr, Attorney General. C. A. 2d
Cir. Certiorari denied. Reported below: 758 Fed. Appx. 144.
No. 19–618. Shaffer v. Pennsylvania. Sup. Ct. Pa. Cer-
tiorari denied. Reported below: 653 Pa. 258, 209 A. 3d 957.
No. 19–819. Procopio v. Wilkie, Secretary of Veterans
Affairs. C. A. Fed. Cir. Certiorari denied.
No. 19–827. Territory of Guam et al. v. Davis. C. A. 9th
Cir. Certiorari denied. Reported below: 932 F. 3d 822.
No. 19–910. K. G. S., Individually and as Guardian and
Next Friend of Doe, a Minor Child v. Facebook, Inc. Sup.
Ct. Ala. Certiorari denied.
No. 19–940. Gonzalez-De Leon v. Barr, Attorney Gen-
eral. C. A. 6th Cir. Certiorari denied. Reported below: 932
F. 3d 489.
No. 19–949. Wisconsin Department of Revenue et al. v.
Union Pacic Railroad Co. C. A. 7th Cir. Certiorari denied.
Reported below: 940 F. 3d 336.

930 OCTOBER
TERM, 2019
May 4, 2020 590 U. S.
No. 19–957. Nkomo v. Barr, Attorney General. C. A. 3d
Cir
. Certiorari denied. Reported below: 930 F. 3d 129.
No. 19–959. TAMKO Building Products, Inc. v. Williams
et al. Sup. Ct. Okla. Certiorari denied. Reported below: 2019
OK 61, 451 P. 3d 146.
No. 19–1064. Makekau et al. v. Hawaii et al. C. A. 9th
Cir. Certiorari denied. Reported below: 943 F. 3d 1200.
No. 19 –1076. Corrigan v. City of Savage, Minnesota,
et al. C. A. 8th Cir. Certiorari denied. Reported below: 786
Fed. Appx. 614.
No. 19–1077. Jaye v. Oak Knoll Village Condominium
Owners Assn., Inc., et al. C. A. 3d Cir. Certiorari denied.
Reported below: 782 Fed. Appx. 197.
No. 19–1083. Clouser v. Doherty et al. Sup. Ct. Del.
Certiorari denied. Reported below: 222 A. 3d 1043.
No. 19–1107. Sides et al. v. Central Kansas Conser-
vancy, Inc. Ct. App. Kan. Cer ti orar i denied. Repor ted
below: 56 Kan. App. 2d 1099, 443 P. 3d 337.
No. 19–1175. Fritz et ux. v. Washoe County, Nevada.
Sup. Ct. Nev. Certiorari denied. Reported below: 135 Nev. 644,
441 P. 3d 1089.
No. 19–1179. Stoyanov v. McPherson, Acting Secretary
of the Navy, et al. C. A. 4th Cir. Certiorari denied. Re-
ported below: 778 Fed. Appx. 225.
No. 19–1198. CANVS Corp. v. Barrett, Secretary of the
Air Force. C. A. Fed. Cir. Certiorari denied. Reported
below: 789 Fed. Appx. 880.
No. 19–6429. Davis v. Ducart, Warden. C. A. 9th Cir.
Certiorari denied. Reported below: 765 Fed. Appx. 312.
No. 19–7099. Storey v. Texas. Ct. Crim. App. Tex. Certio-
rari denied. Reported below: 584 S. W. 3d 437.
No. 19–7116. Galindo-Mendez v. United States. C. A. 5th
Cir. Certiorari denied. Reported below: 777 Fed. Appx. 769.
No. 19–7479. Price v. United States. C. A. 1st Cir. Cer-
tiorari denied.

ORDERS 931
590 U. S.
May
4, 2020
No. 19–7504. Brooks v. United States. C. A. 11th Cir.
Cer
tiorari denied.
No. 19–7693. Mills v. Saul, Commissioner of Social Secu-
rity. C. A. 9th Cir. Certiorari denied.
No. 19–7807. Young v. Boggio et al. C. A. 3d Cir. Certio-
rari denied. Reported below: 787 Fed. Appx. 65.
No. 19–7814. Herriott v. Herriott. Ct. App. Cal., 2d App.
Dist. Certiorari denied.
No. 19–7815. Grimsley v. Oregon et al. C. A. 9th Cir.
Certiorari denied.
No. 19–7822. Williby v. Zuckerberg et al. C. A. 9th Cir.
Certiorari denied.
No. 19–7827. Hall v. Texas. Ct. App. Tex., 11th Dist. Cer-
tiorari denied.
No. 19–7828. Hayward v. Foley, Warden. C. A. 6th Cir.
Certiorari denied.
No. 19–7829. Phillips v. South Coast Plaza et al. C. A.
9th Cir. Certiorari denied.
No. 19–7831. Antonio Cortez v. Davis, Director, Texas
Department of Criminal Justice, Correctional Institu-
tions Division. C. A. 5th Cir. Certiorari denied.
No. 19–7832. Pierce v. California. Sup. Ct. Cal. Certio-
rari denied.
No. 19–7849. Black v. Dolan, Commissioner of Probation
Department. C. A. 1st Cir. Certiorari denied.
No. 19–7850. Autry v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
sion. C. A. 5th Cir. Certiorari denied.
No. 19–7856. Djerf v. Shinn, Director, Arizona Depart-
ment of Corrections. C. A. 9th Cir. Certiorari denied.
Reported below: 931 F. 3d 870.
No. 19–7860. Rowles v. GEO Group, Inc., et al. C. A. 11th
Cir. Certiorari denied.

932 OCTOBER
TERM, 2019
May 4, 2020 590 U. S.
No. 19–7861. Reilly v. Florida et al. C. A. 11th Cir. Cer-
ti
orari denied.
No. 19–7864. Crosby v. Illinois. App. Ct. Ill., 1st Dist.
Certiorari denied.
No. 19–7867. Mims v. Illinois Health and Family Serv-
ices. Sup. Ct. Ill. Certiorari denied.
No. 19–7870. Peets v. Fox, Warden. C. A. 9th Cir. Certio-
rari denied.
No. 19 –7874. Andrews v. Davis, Director, Texas De-
partment of Criminal Justice, Correctional Institutions
Division. C. A. 5th Cir. Certiorari denied.
No. 19–7877. Rogers v. Gastelo, Warden. C. A. 9th Cir.
Certiorari denied.
No. 19–7890. Richards v. Michigan. Ct. App. Mich. Cer-
tiorari denied.
No. 19–7892. Roark v. New York. App. Div., Sup. Ct. N. Y.,
3d Jud. Dept. Certiorari denied. Reported below: 175 App. Div.
3d 752, 103 N. Y. S. 3d 867.
No. 19–7895. Brown v. Florida. Dist. Ct. App. Fla., 3d Dist.
Certiorari denied.
No. 19–7897. Webster v. CorVel Enterprise Co., Inc.,
et al. Ct. App. Ore. Certiorari denied. Reported below: 294
Ore. App. 512, 429 P. 3d 451.
No. 19–7900. Miller v. Michigan. Ct. App. Mich. Certio-
rari denied.
No. 19–7941. Doe v. United States et al. C. A. 2d Cir.
Certiorari denied.
No. 19–7948. Davis v. Johnson, Administrator, New Jer-
sey State Prison, et al. C. A. 3d Cir. Certiorari denied.
Reported below: 795 Fed. Appx. 100.
No. 19–7957. Rufn v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 783 Fed. Appx. 478.
No. 19–7958. Quinones v. United States. C. A. 9th Cir.
Certiorari denied.

ORDERS 933
590 U. S.
May
4, 2020
No. 19–7963. Yisrael v. Inch, Secretary, Florida Depart-
ment
of Corrections. Sup. Ct. Fla. Certiorari denied.
No. 19–7965. Edney v. United States. C. A. 5th Cir. Cer-
tiorari denied.
No. 19–7971. Lewis v. Illinois. App. Ct. Ill., 2d Dist. Cer-
tiorari denied.
No. 19–7972. Brown v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 787 Fed. Appx. 182.
No. 19–7974. Moreno v. United States. C. A. 9th Cir.
Certiorari denied.
No. 19–7976. Fleming v. United States. C. A. 9th Cir.
Certiorari denied.
No. 19–7977. Hoff v. United States. C. A. 9th Cir. Cer-
tiorari denied.
No. 19 –7978. Delgado, aka Delgado-Pina v. United
States. C. A. 9th Cir. Certiorari denied. Reported below: 798
Fed. Appx. 105.
No. 19–7979. Chadwick v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 796 Fed. Appx. 795.
No. 19–7981. Castaneda v. United States. C. A. 9th Cir.
Certiorari denied.
No. 19–7984. Pereda v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 788 Fed. Appx. 499.
No. 19–7988. Baptiste v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 935 F. 3d 1304.
No. 19–8003. Hoover v. Ndoh, Warden. C. A. 9th Cir.
Certiorari denied. Reported below: 797 Fed. Appx. 295.
No. 19–8017. Cancino et al. v. Cameron County, Texas,
et al. C. A. 5th Cir. Certiorari denied. Reported below: 794
Fed. Appx. 414.
No. 19–8035. De Jesus Valencia v. California. Ct. App.
Cal., 2d App. Dist., Div. 8. Certiorari denied.
No. 19–8092. Padilla v. Barr, Attorney General. C. A.
11th Cir. Certiorari denied. Reported below: 793 Fed. Appx.
956.

934 OCTOBER
TERM, 2019
May 4, 2020 590 U. S.
No. 19–8131. Sheron v. United States. C. A. 6th Cir.
Cer
tiorari denied. Reported below: 787 Fed. Appx. 332.
No. 19–8139. Duran Cerritos v. United States. C. A. 4th
Cir. Certiorari denied. Reported below: 787 Fed. Appx. 826.
No. 19–8154. Stamp v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 790 Fed. Appx. 680.
No. 19–8155. Saunders v. Johnson, Administrator, New
Jersey State Prison, et al. C. A. 3d Cir. Certiorari denied.
No. 19–8158. Heindenstrom v. United States. C. A. 1st
Cir. Certiorari denied. Reported below: 946 F. 3d 57.
No. 19–8172. Carson v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 796 Fed. Appx. 238.
No. 19–8173. St. Claire v. United States. C. A. 8th Cir.
Certiorari denied.
No. 19–8178. Norris v. United States. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 942 F. 3d 902.
No. 19–8187. Potts v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 947 F. 3d 357.
No. 19–8188. Hamilton v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 800 Fed. Appx. 476.
No. 19–8193. Purifoy v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 788 Fed. Appx. 291.
No. 19–8218. Paz-Alvarez v. United States. C. A. 1st Cir.
Certiorari denied.
Rehearing Denied
No. 19–670. Fleck v. Wetch et al., 589 U. S. 1263;
No. 19–1041. Khrapko v. Splain et al., 589 U. S. 1278;
No. 19–6442. Yeager v. National Public Radio et al., 589
U. S. 1124;
No. 19–6928. Lofton v. Kelley, Director, Arkansas De-
partment of Correction, 589 U. S. 1215;
No. 19–6982. Collins v. Barnes & Thornburg LLP et al.,
589 U. S. 1217;
No. 19–7173. Rose v. United States, 589 U. S. 1222;

ORDERS 935
590 U. S.
May
4, 6, 14, 2020
No. 19–7199. Tooly v. Schwaller, 589 U. S. 1223;
N
o. 19–7204. Wilson v. Inch, Secretary, Florida Depart-
ment of Corrections, et al., 589 U. S. 1266;
No. 19–7229. Lowe v. Parris et al., 589 U. S. 1266;
No. 19–7318. Yablonsky v. California, 589 U. S. 1227;
No. 19–7383. May v. Arkansas, 589 U. S. 1282;
No. 19–7409. Pryor v. United States, 589 U. S. 1267;
No. 19–7509. In re Mattison, 589 U. S. 1201; and
No. 19–7606. McKinnon v. Florida (two judgments), 589
U. S. 1285. Petitions for rehearing denied.
No. 19–392. Armstrong v. Securities and Exchange Com-
mission et al., 589 U. S. 1269. Petition for rehearing denied.
Justice Sotomayor took no part in the consideration or decision
of this petition.
May 6, 2020
Miscellaneous Order
No. 19A1032. Friends of DeVito et al. v. Wolf, Governor
of Pennsylvania, et al. Sup. Ct. Pa. Application for stay,
presented to Justice Alito, and by him referred to the Court,
denied.
May 14, 2020
Miscellaneous Order
No. 19A1034. Valentine et al. v. Collier, Executive Di-
rector, Texas Department of Criminal Justice, et al.
C. A. 5th Cir. Application to vacate stay, presented to Justice
Alito, and by him referred to the Court, denied.
Statement of Justice Sotomayor, with whom Justice Gins-
burg joins, respecting the denial of application to vacate stay.
In this lawsuit, inmates in a Texas geriatric prison allege that
their facility failed to protect them from the dangers of COVID–
19. The District Court heard unrebutted testimony about the
imminent dangers faced by the inmates, some of whom have al-
ready died. It also heard testimony about the facility's lackluster
efforts to keep the illness from spreading and held that the facili-
ty's inexplicable failures amounted to deliberate indifference for
its elderly inmates in violation of the Eighth Amendment. On
that basis, it issued an injunction requiring the prison to follow

936 OCTOBER
TERM, 2019
Statement of Sotomayor, J. 590 U. S.
an extensive protocol, including frequent cleaning and increased
educati
on efforts. 2020 WL 1899 274 (SD Tex., Apr. 16, 2020).
The Court of Appeals for the Fifth Circuit stayed that injunction
pending appeal, and the inmates now seek to vacate that stay in
this Court. 956 F. 3d 797 (2020) (per curiam).
Notably, where the Court is asked to undo a stay issued below,
the bar is high. Among other things, applicants must show that
the lower court was “ `demonstrably wrong in its application of
accepted standards in deciding to issue the stay.' ” Western Air-
lines, Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987) (O'Connor, J.,
in chambers). The Fifth Circuit ruled, among other things, that
the prison was substantially likely to succeed on its claim that
the inmates failed to exhaust their remedies as required by the
Prison Litigation and Reform Act of 1995 (PLRA), 110 Stat. 1321–
71, 42 U. S. C. § 1997e(a). Under the circumstances of this case,
where the inmates fled a lawsuit before fling any grievance with
the prison itself, it is hard to conclude that the Fifth Circuit was
demonstrably wrong on this preliminary procedural holding.
I write separately to highlight the disturbing allegations pre-
sented below. Further, where plaintiffs demonstrate that a
prison grievance system cannot or will not respond to an inmate's
complaint, they could well satisfy an exception to the PLRA's
exhaustion requirement. Finally, while States and prisons retain
discretion in how they respond to health emergencies, federal
courts do have an obligation to ensure that prisons are not delib-
erately indifferent in the face of danger and death.
I
The facility at issue (the Pack Unit) houses about 1,200 inmates,
more than 800 of whom are 65 or older. As the District Court
found, the risk of COVID–19 spreading in the Pack Unit is partic-
ularly high. The facility is a dormitory-style prison, with each
inmate separated only by a short, cubicle-style half wall. When
the District Court issued its ruling, COVID–19 had already begun
to spread in the facility. On April 11, 2020, one inmate, Leonard
Clerkly, was transferred to the hospital because of diffculty
breathing, a symptom the hospital linked to COVID–19. He was
pronounced dead mere hours later.
Before and after Clerkly's death, prison administrators began
implementing policies to control the spread of COVID–19. For in-
stance, the prison placed all inmates on a precautionary lockdown

ORDERS 937
935
St
atement of Sotomayor, J.
and began taking some inmates' temperatures twice a day. It
a
lso established a policy of providing inmates with cloth masks to
be changed daily and instructed inmates to request additional
soap at no cost. But the District Court found that the facil-
ity inexplicably failed to comply with some of its self-declared
policies.
The District Court heard unrefuted testimony that, despite the
prison's claim of enhanced cleaning measures, its cleaning protocol
in practice remained virtually the same. The facility neither in-
creased the number of inmate janitors nor ensured that the exist-
ing janitors did their jobs safely and effectively. One janitor tes-
tifed that, just as before the pandemic, the cleaning solution
provided to the cleaning crews was frequently depleted by mid-
afternoon, only halfway through a shift. Each day he received
only one pair of gloves to share with his cojanitor, an arrangement
medical experts described as tantamount to no gloves at all. 455
F. Supp 3d 308, 316–318, 322–323 (SD Tex. 2020).
The facility's failures to comply with its own safety protocol
became even clearer after Clerkly's death. Prison policies re-
quired that any inmate showing signs of COVID–19 be “ `triaged' ”
and “ `placed in medical isolation' ” and that all areas used by the
symptomatic inmate be thoroughly disinfected. Id., at 323–324.
Yet even though Clerkly had diffculty breathing and died only a
few hours after being transported to the hospital, the prison
“made no representations” to the District Court that “they identi-
fed Mr. Clerkly as symptomatic, evaluated him for potential
COVID-19 infection, or isolated or treated him for COVID-19 at
any point before his transport to the hospital on the day of his
death.” Id., at 324. In fact, the prison “did not implement fur-
ther precautionary measures until three days after Mr. Clerkly's
death.” Ibid. In the meantime, while the prison waited for a
positive COVID–19 test that seemed certain to come, “countless
inmates were knowingly exposed to a serious substantial risk of
harm.” Ibid.
II
Having heard testimony from several witnesses from the Pack
Unit and from prison experts who declared the Pack Unit prac-
tices “woefully inadequate,” the District Court held that appli-
cants were likely to succeed on their Eighth Amendment claim.
Id., at 325. The court noted the “obvious” risk of COVID–19 to
the older men in the Pack Unit and reasoned that the prison's

938 OCTOBER
TERM, 2019
Statement of Sotomayor, J. 590 U. S.
failure to take basic steps, many of which were required by its
own
policies, evinced deliberate indifference. Id., at 322, 327.
The District Court then ordered the prison to mitigate the harm
to inmates, including through some measures recommended by an
expert witness who had managed prisons himself. Id., at 317–
319, 321–326; 2020 WL 1899274.
Despite the District Court's detailed, careful fndings, based on
live testimony and the court's own visit to the Pack Unit, the
Fifth Circuit stayed the injunction. The Fifth Circuit noted that
the prison had submitted evidence of “the protective measures it
ha[d] taken as a result” of the COVID–19 pandemic, and so the
question was simply whether the Eighth Amendment required
the prison “to do more.” 956 F. 3d, at 801–802.
1
But in crediting
the prison's assurances, the Fifth Circuit did not address all of the
District Court's factual fndings that the prison had inexplicably
discarded its own rules and, in doing so, evinced deliberate indif-
ference to the medical needs of its inmates.
2
See Farmer v.
Brennan, 511 U. S. 825, 842 (1994) (noting that deliberate indiffer-
ence is a question of fact often made out by “inference from
circumstantial evidence”). The Fifth Circuit may have acted out-
side its authority in refusing to defer to those factual fndings.
See Anderson v. Bessemer City, 470 U. S. 564, 573 (1985). Simi-
larly, while the Fifth Circuit faulted the District Court for issuing
1
One member of the Fifth Circuit panel concurred in judgment. See 956
F. 3d, at 806 (opinion of Higginson, J.). The concurrence reasoned that the
inmates were unlikely to prevail on exhaustion, but noted that a merits
panel could fnd on a full record that an exception to the PLRA's exhaustion
requirement applied. The concurrence also argued that the motions panel
should not have addressed the merits of the inmates' “intensely fact-based”
claims in light of the District Court's “extensive and careful fndings of fact
that mitigation defciencies still exist” in the prison. Id., at 807–808.
2
The Fifth Circuit also faulted the District Court for imposing standards
higher than those recommended by the Centers for Disease Control and
Prevention (CDC). But as the District Court noted, the CDC Guidelines
themselves caution that they “may need to be adapted based on individual
facilities' physical space, staffng, population, operations, and other resources
and conditions.” 455 F. Supp. 3d 308, 325 (SD Tex. 2020) (internal quotation
marks omitted). Given the particular vulnerabilities of the inmates in the Pack
Unit, even counsel for the prison admitted that steps beyond those prescribed by
the CDC may be necessary. Ibid. And, of course, the District Court found
that the prison was regularly failing to comply with standards far below
what the CDC suggests. Much of its injunction targeted that behavior.

ORDERS 939
935
St
atement of Sotomayor, J.
an admittedly exacting injunction, that injunction too was rooted
i
n equally detailed factfnding regarding the prison's failure to
live up to its promises.
Also concerning was some of the Fifth Circuit's language re-
garding exhaustion. This Court has made clear that the PLRA
requires exhaustion only of “available” judicial remedies. Ross v.
Blake, 578 U. S. 632, 642 (2016). “[T]he ordinary meaning of the
word `available' is `capable of use for the accomplishment of a
pur pose. ' ” Ib i d. (some i nter na l quot ati on marks omitted).
Thus, when a grievance procedure is a “dead end”—when “the
facts on the ground” indicate that the grievance procedure pro-
vides no possibility of relief—the procedures may well be “un-
available.” Id., at 643.
The Fifth Circuit seemed to reject the possibility that grievance
procedures could ever be a “dead end” even if they could not
provide relief before an inmate faced a serious risk of death. But
if a plaintiff has established that the prison grievance procedures
at issue are utterly incapable of responding to a rapidly spreading
pandemic like COVID–19, the procedures may be “unavailable” to
meet the plaintiff 's purposes, much in the way they would be if
prison offcials ignored the grievances entirely. Ibid. Here, of
course, it is diffcult to tell whether the prison's system fts in
that narrow category, as applicants did not attempt to avail them-
selves of the grievance process before fling suit. But I caution
that in these unprecedented circumstances, where an inmate faces
an imminent risk of harm that the grievance process cannot or
does not answer, the PLRA's textual exception could open the
courthouse doors where they would otherwise stay closed.
III
While I disagree with much of the Fifth Circuit's analysis at
this preliminary juncture, the court required reports every 10
days on the status of the inmates in the prison's care. I expect
that it and other courts will be vigilant in protecting the constitu-
tional rights of those like applicants. As the circumstances of
this case make clear, the stakes could not be higher. Just a few
nights ago, respondents revealed that “numerous inmates and
staff members” at the Pack Unit “are now COVID–19 positive
and the vast majority of those tested positive within the past two
weeks.” Supp. Brief Regarding Emergency Application 1.

940 OCTOBER
TERM, 2019
May 14, 18, 2020 590 U. S.
Nothing in this Court's order, of course, prevents the Fifth
Circuit
from amending its stay. Nor does anything in our order
prevent applicants from seeking new relief in the District Court,
as appropriate, based on changed circumstances. Finally, admin-
istrative convenience must be balanced against the risk of danger
presented by emergency situations. The prison, for example, has
failed to explain why it could not simply decrease dorm density,
despite having an empty unit at its disposal.
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 i nmates everywhere have been rendered vu lnerable
and often powerless to protect themselves from harm. May we
hope that our country's facilities serve as models rather than
cautionary tales.
May 18, 2020
Certiorari Granted—Vacated and Remanded
No. 19–864. Beers v. Barr, Attorney General, et al.
C. A. 3d Cir. Certiorari granted, judgment vacated, and case
remanded with instructions to dismiss the case as moot. See
United States v. Munsingwear, Inc., 340 U. S. 36 (1950). Re-
ported below: 927 F. 3d 150.
Certiorari Dismissed
No. 19–7866. Popal v. Brown. C. A. 2d Cir. Motion of peti-
tioner for leave to proceed in forma pauperis denied, and certio-
rari dismissed. See this Court's Rule 39.8.
No. 19–7905. Arunachalam v. Exxon Mobil Corp. C. A.
5th Cir. Motion of petitioner for leave to proceed in forma pau-
peris denied, and certiorari dismissed. See this Court's Rule
39.8.
No. 19–7910. Arunachalam v. Intuit, Inc. C. A. 5th Cir.
Motion of petitioner for leave to proceed in forma pauperis de-
nied, and certiorari dismissed. See this Court's Rule 39.8.
No. 19–7935. Ball v. City of Marion, Illinois. Sup. Ct.
Ill. Motion of petitioner for leave to proceed in forma pauperis
denied, and certiorari dismissed. See this Court's Rule 39.8.
No. 19–7953. Lopez v. Lopez. Ct. App. Cal., 4th App. Dist.,
Div. 3. Motion of petitioner for leave to proceed in forma pau-

ORDERS 941
590 U. S.
May
18, 2020
peris denied, and certiorari dismissed. See this Court's Rule
39.8.
N
o. 19–8029. Arunachalam v. Lyft, Inc. C. A. 5th Cir.
Motion of petitioner for leave to proceed in forma pauperis de-
nied, and certiorari dismissed. See this Court's Rule 39.8. The
Chief Justice took no part in the consideration or decision of
this motion and this petition.
No. 19–8064. Weeks v. Payne, Warden, et al. Sup. Ct. Mo.
Motion of petitioner for leave to proceed in forma pauperis de-
nied, and certiorari dismissed. See this Court's Rule 39.8. As
petitioner has repeatedly abused this Court's process, the Clerk
is directed not to accept any further petitions in noncriminal mat-
ters from petitioner unless the docketing fee required by Rule
38(a) is paid and the petition is submitted in compliance with Rule
33.1. See Martin v. District of Columbia Court of Appeals, 506
U. S. 1 (1992) (per curiam).
No. 19–8211. Banks v. Braun et al. C. A. 2d Cir. Motion
of petitioner for leave to proceed in forma pauperis denied, and
certiorari dismissed. See this Court's Rule 39.8.
No. 19–8252. Chambers v. Hardy et al. C. A. 6th Cir.
Motion of petitioner for leave to proceed in forma pauperis de-
nied, and certiorari dismissed. See this Court's Rule 39.8.
Miscellaneous Orders
No. 19M136. In re Starling. Motion for leave to proceed as
a veteran denied.
No. 19M137. Rosas v. University of Texas at San Anto-
nio et al. Motion to direct the Clerk to fle petition for writ of
certiorari out of time denied.
No. 19–8037. Ruttkamp v. Bank of New York Mellon, fka
Bank of New York. App. Ct. Conn.; and
No. 19–8061. Weixing Wang v. Marcotte. Sup. Ct. N. H.
Motions of petitioners for leave to proceed in forma pauperis
denied. Petitioners are allowed until June 8, 2020, within which
to pay the docketing fees required by this Court's Rule 38(a).
No. 18–9554. In re Allen;
No. 19–1226. In re Bamdad;

942 OCTOBER
TERM, 2019
May 18, 2020 590 U. S.
No. 19–8282. In re Watson; and
N
o. 19–8285. In re Williams. Petitions for writs of habeas
corpus denied.
No. 19–8345. In re Ciotta. Motion of petitioner for leave to
proceed in forma pauperis denied, and petition for writ of habeas
corpus dismissed. See this Court's Rule 39.8. As petitioner has
repeatedly abused this Court's process, the Clerk is directed not
to accept any further petitions in noncriminal matters from peti-
tioner unless the docketing fee required by Rule 38(a) is paid and
the petition is submitted in compliance with Rule 33.1. See Mar-
tin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992)
(per curiam).
No. 19–7938. In re Townsend. Petition for writ of manda-
mus denied.
No. 19–7885. In re Findlay. Petition for writ of prohibi-
tion denied.
Certiorari Denied
No. 19–55. Richards v. Barrett, Secretary of the Air
Force, et al. C. A. Armed Forces. Certiorari denied.
No. 19–605. Arizona v. Martin. Sup. Ct. Ariz. Certiorari
denied. Reported below: 247 Ariz. 101, 446 P. 3d 806.
No. 19–682. Kelsay v. Ernst. C. A. 8th Cir. Certiorari de-
nied. Reported below: 933 F. 3d 975.
No. 19–815. Phoenix v. Regions Bank. C. A. 11th Cir.
Certiorari denied. Reported below: 936 F. 3d 1184.
No. 19–849. Dyroff, Individually and on Behalf of the
Estate of Greer v. Ultimate Software Group, Inc. C. A.
9th Cir. Certiorari denied. Reported below: 934 F. 3d 1093.
No. 19–859. Force et al. v. Facebook, Inc. C. A. 2d Cir.
Certiorari denied. Reported below: 934 F. 3d 53.
No. 19–912. Robles v. United States. C. A. 9th Cir. Cer-
tiorari denied.
No. 19–1006. Facebook, Inc., et al. v. Superior Court of
California, San Francisco County, et al. Ct. App. Cal., 1st
App. Dist., Div. 5. Certiorari denied.

ORDERS 943
590 U. S.
May
18, 2020
No. 19–1049. Bolivarian Republic of Venezuela et al. v.
Cryst
allex International Corp. C. A. 3d Cir. Certiorari
denied. Reported below: 932 F. 3d 126.
No. 19–1079. M. W. Watermark, LLC, et al. v. Evoqua
Water Technologies, LLC. C. A. 6th Cir. Certiorari denied.
Reported below: 940 F. 3d 222.
No. 19–1081. Rosenblatt v. City of Santa Monica, Cali-
fornia, et al. C. A. 9th Cir. Certiorari denied. Reported
below: 940 F. 3d 439.
No. 19–1088. Fox v. Miller, Chapter 7 Trustee. C. A. 9th
Cir. Certiorari denied. Reported below: 786 Fed. Appx. 688.
No. 19–1093. Clarkston et al. v. White. C. A. 5th Cir.
Certiorari denied. Reported below: 943 F. 3d 988.
No. 19–1095. Beggs et ux. v. Story et al. Sup. Ct. Va.
Certiorari denied.
No. 19–1096. Multiventas y Servicios, Inc., et al. v. Ori-
ental Bank. Sup. Ct. P. R. Certiorari denied.
No. 19–1109. Yoakum v. Sabre GLBL Inc. C. A. 5th Cir.
Certiorari denied. Reported below: 775 Fed. Appx. 176.
No. 19–1111. Deem v. DiMella-Deem et al. C. A. 2d Cir.
Certiorari denied. Reported below: 941 F. 3d 618.
No. 19–1112. Jones v. Eder et al. C. A. 5th Cir. Certio-
rari denied. Reported below: 778 Fed. Appx. 327.
No. 19–1114. National Collegiate Athletic Assn. et al.
v. New Jersey Thoroughbred Horsemen’s Assn., Inc. C. A.
3d Cir. Certiorari denied. Reported below: 939 F. 3d 597.
No. 19–1117. Malukas v. Barr, Attorney General. C. A.
7th Cir. Certiorari denied. Reported below: 940 F. 3d 968.
No. 19–1119. Sauk Prairie Conservation Alliance v. De-
partment of the Interior et al. C. A. 7th Cir. Certiorari
denied. Reported below: 944 F. 3d 664.
No. 19 –1122. Hong Tang v. University of Baltimore
et al. C. A. 4th Cir. Certiorari denied. Reported below: 782
Fed. Appx. 254.

944 OCTOBER
TERM, 2019
May 18, 2020 590 U. S.
No. 19–1128. Mendes Da Costa v. Pereira et al. C. A. 2d
Cir
. Certiorari denied. Reported below: 792 Fed. Appx. 865.
No. 19–1129. Fote v. Iancu, Director, United States Pat-
ent and Trademark Ofce. C. A. Fed. Cir. Certiorari de-
nied. Reported below: 784 Fed. Appx. 781.
No. 19–1132. Blackbird Tech LLC, dba Blackbird Tech-
nologies v. Health in Motion LLC, dba Inspire Fitness,
et al. C. A. Fed. Cir. Certiorari denied. Reported below: 944
F. 3d 910.
No. 19–1139. Hines v. Regions Bank, fka Union Planters
Bank, N. A. C. A. 11th Cir. Certiorari denied. Reported
below: 782 Fed. Appx. 853.
No. 19–1150. Kirchhoff v. United States et al. C. A. 4th
Cir. Certiorari denied. Reported below: 788 Fed. Appx. 193.
No. 19–1161. Hawkins v. Ohio. Sup. Ct. Ohio. Certiorari
denied. Reported below: 158 Ohio St. 3d 94, 2019-Ohio-4210, 140
N. E. 3d 577.
No. 19–1168. Machala v. Kral et al. Ct. App. D. C. Cer-
tiorari denied. Reported below: 223 A. 3d 99.
No. 19–1172. Targowski v. Rawlins. C. A. 8th Cir. Certio-
rari denied. Reported below: 776 Fed. Appx. 922.
No. 19–1188. Samaca, LLC v. Cellairis Franchise, Inc.,
et al. (two judgments). Ct. App. Ga. Certiorari denied.
No. 19–1196. Johnson v. Paulding County, Georgia, et al.
C. A. 11th Cir. Certiorari denied. Reported below: 780 Fed.
Appx. 796.
No. 19 –1202. Taffe et al. v. First National Bank of
Alaska. Sup. Ct. Alaska. Certiorari denied. Reported below:
450 P. 3d 239.
No. 19–1211. North v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
sion. C. A. 5th Cir. Certiorari denied. Reported below: 800
Fed. Appx. 211.
No. 19–1213. Hammers v. United States. C. A. 10th Cir.
Certiorari denied. Reported below: 942 F. 3d 1001.

ORDERS 945
590 U. S.
May
18, 2020
No. 19–1228. Kaneka Corp. v. Xiamen Kingdomway Group
Co
. et al. C. A. Fed. Cir. Certiorari denied. Reported below:
767 Fed. Appx. 998.
No. 19–5497. McGill v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19–6006. Wilkerson v. Alabama. Ct. Crim. App. Ala.
Certiorari denied.
No. 19–6588. Pedroza-Rocha v. United States. C. A. 5th
Cir. Certiorari denied. Reported below: 933 F. 3d 490.
No. 19–6701. Labat v. Vannoy, Warden. C. A. 5th Cir.
Certiorari denied.
No. 19–6705. Wilkins v. Galvin et al. C. A. 9th Cir. Cer-
tiorari denied.
No. 19–6922. Bates v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 784 Fed. Appx. 312.
No. 19–7217. Thompson v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 924 F. 3d 1153.
No. 19–7425. Hettinga v. Arcadia Management Services
Co. Ct. App. Cal., 6th App. Dist. Certiorari denied.
No. 19–7455. Bush v. Sharp, Interim Warden. C. A. 10th
Cir. Certiorari denied. Reported below: 926 F. 3d 644.
No. 19–7476. Kemp v. Payne, Director, Arkansas Division
of Correction. C. A. 8th Cir. Certiorari denied. Reported
below: 924 F. 3d 489.
No. 19–7553. Humbert v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19 –7607. Westrum v. National Labor Relations
Board. C. A. 8th Cir. Certiorari denied. Reported below: 753
Fed. Appx. 421.
No. 19–7627. Salgado Martinez v. Shinn, Director, Ari-
zona Department of Corrections. C. A. 9th Cir. Certiorari
denied. Reported below: 926 F. 3d 1215.
No. 19–7645. Gonzales v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-

946 OCTOBER
TERM, 2019
May 18, 2020 590 U. S.
sion. C. A. 5th Cir. Certiorari denied. Reported below: 788
F
ed. Appx. 250.
No. 19–7805. Holloman v. Clarke, Director, Virginia De-
partment of Corrections. C. A. 4th Cir. Certiorari denied.
Reported below: 781 Fed. Appx. 274.
No. 19–7882. Harris v. May et al. C. A. 4th Cir. Certio-
rari denied. Reported below: 776 Fed. Appx. 180.
No. 19–7888. Banks v. Wafe House, Inc. Sup. Ct. Ga.
Certiorari denied.
No. 19–7899. Nigl v. Litscher et al. C. A. 7th Cir. Cer-
tiorari denied. Reported below: 940 F. 3d 329.
No. 19–7901. Powers v. Smith et al. C. A. 7th Cir. Certio-
rari denied.
No. 19–7906. Osborne v. Georgiades. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 778 Fed. Appx. 220.
No. 19–7907. Olsen v. Francois. Ct. App. Wis. Certiorari
denied. Reported below: 2019 WI App 48, 388 Wis. 2d 475, 934
N. W. 2d 573.
No. 19–7912. Mehdipour v. Sweeney et al. C. A. 10th Cir.
Certiorari denied. Reported below: 786 Fed. Appx. 847.
No. 19–7913. Parineh v. Martel, Warden. C. A. 9th Cir.
Certiorari denied.
No. 19–7920. Johnson v. Inch, Secretary, Florida Depart-
ment of Corrections, et al. C. A. 11th Cir. Certiorari
denied.
No. 19–7921. Scott v. Superior Court of California, Mon-
terey County. C. A. 9th Cir. Certiorari denied.
No. 19–7923. Smith v. Kennedy. C. A. 5th Cir. Certiorari
denied.
No. 19–7924. Stacz v. ESA Management, LLC, et al. Sup.
Ct. Cal. Certiorari denied.
No. 19–7925. O’Rourke v. Lashbrook, Warden. C. A. 7th
Cir. Certiorari denied.

ORDERS 947
590 U. S.
May
18, 2020
No. 19–7926. Lin Ouyang v. Achem Industry America,
Inc.
Ct. App. Cal., 2d App. Dist., Div. 4. Certiorari denied.
No. 19–7929. Yost-Rudge v. A to Z Properties, Inc., et al.
Sup. Ct. Fla. Certiorari denied.
No. 19 –7932. Auch v. Massachuset ts. App. Ct. Mass.
Certiorari denied. Reported below: 96 Mass. App. 1106, 137 N. E.
3d 1084.
No. 19–7936. Zavaglia v. Boston University School of
Medicine. C. A. 1st Cir. Certiorari denied.
No. 19–7937. Yaney et al. v. Mason et al. Ct. App. Cal.,
4th App. Dist., Div. 2. Certiorari denied.
No. 19–7943. J. H. v. E. R. S. Ct. App. Colo. Certiorari de-
nied. Reported below: 452 P. 3d 174.
No. 19–7954. Leonhart v. Shoop, Warden. C. A. 6th Cir.
Certiorari denied.
No. 19–7955. Berryman v. Haas et al. C. A. 6th Cir. Cer-
tiorari denied.
No. 19 –7959. Tedesco v. Ferguson, Superintendent,
State Correctional Institution at Graterford, et al.
C. A. 3d Cir. Certiorari denied. Reported below: 789 Fed.
Appx. 293.
No. 19–7961. Throneberry v. Oklahoma. Ct. Crim. App.
Okla. Certiorari denied.
No. 19–7962. Womack v. Robertson, Warden. C. A. 9th
Cir. Certiorari denied.
No. 19–7964. Aizupitis v. Delaware. Super. Ct. Del. Cer-
tiorari denied.
No. 19–7966. Langford v. Cobb. C. A. 9th Cir. Certiorari
denied.
No. 19–7968. Ndoromo v. Barr, Attorney General, et al.
C. A. D. C. Cir. Certiorari denied.
No. 19–7969. McBride v. Berry, Warden. C. A. 11th Cir.
Certiorari denied.

948 OCTOBER
TERM, 2019
May 18, 2020 590 U. S.
No. 19–7973. Chisolm v. Maryland. Ct. Sp. App. Md. Cer-
ti
orari denied. Reported below: 227 Md. App. 755.
No. 19–7975. Myer v. All Dulles Area Muslim Society.
Sup. Ct. Va. Certiorari denied.
No. 19–7980. Patterson v. United States District Court
for the Eastern District of North Carolina. C. A. 4th
Cir. Certiorari denied. Reported below: 785 Fed. Appx. 131.
No. 19–7982. Penland v. Ohio. Ct. App. Ohio, 1st App. Dist.,
Hamilton County. Certiorari denied.
No. 19–7983. Newton v. Ohio. Ct. App. Ohio, 8th App. Dist.,
Cuyahoga County. Certiorari denied. Reported below: 2019-
Ohio-3653.
No. 19–7989. Bryner v. Cleareld City, Utah, et al. Ct.
App. Utah. Certiorari denied.
No. 19–7990. Roman v. Kim et al. Ct. App. Cal., 2d App.
Dist., Div. 8. Certiorari denied.
No. 19–7992. Davis v. Bank of New York Mellon Corp.,
as Trustee for Specialty Underwriting and Residential
Finance Trust, Series 2005–BC3. Ct. Civ. App. Ala. Certio-
rari denied.
No. 19–7994. Butler v. Florida. Dist. Ct. App. Fla., 2d
Dist. Certiorari denied. Reported below: 287 So. 3d 530.
No. 19–7995. Jackson v. Magoon Estates Ltd. et al. C. A.
9th Cir. Certiorari denied.
No. 19–8001. Vinarov v. CitiMortgage, Inc. Sup. Ct. Ill.
Certiorari denied.
No. 19–8007. Gabriel v. Outlaw. Ct. App. Tex., 5th Dist.
Certiorari denied.
No. 19– 8011. Dellinger v. Tennessee. Ct. Crim. App.
Tenn. Certiorari denied.
No. 19 – 8012. Drevaleva v. Alameda Health System
et al. C. A. 9th Cir. Certiorari denied. Reported below: 789
Fed. Appx. 51.
No. 19–8013. Alexander v. Pennsylvania. Super. Ct. Pa.
Certiorari denied. Reported below: 220 A. 3d 620.

ORDERS 949
590 U. S.
May
18, 2020
No. 19–8018. Humphrey v. Inch, Secretary, Florida De-
p
artment of Corrections, et al. C. A. 11th Cir. Certio-
rari denied.
No. 19–8021. Jackson v. Utah et al. C. A. 10th Cir. Cer-
tiorari denied. Reported below: 782 Fed. Appx. 690.
No. 19–8023. Orr v. Tennessee Bureau of Investigation
et al. C. A. 6th Cir. Certiorari denied.
No. 19–8024. Hunsberger v. Duran et al. C. A. 4th Cir.
Certiorari denied. Reported below: 785 Fed. Appx. 155.
No. 19–8025. McKinney v. Arkansas. Ct. App. Ark. Cer-
tiorari denied. Reported below: 2019 Ark. App. 347, 583 S. W.
3d 399.
No. 19–8028. Gore v. Florida. Dist. Ct. App. Fla., 5th Dist.
Certiorari denied. Reported below: 288 So. 3d 1280.
No. 19 – 8032. Harris v. Metropolitan Government of
Nashville and Davidson County, Tennessee, et al. C. A.
6th Cir. Certiorari denied.
No. 19–8042. Taylor v. Florida. Dist. Ct. App. Fla., 4th
Dist. Certiorari denied.
No. 19–8050. Merritt v. United States. C. A. 1st Cir.
Certiorari denied. Reported below: 945 F. 3d 578.
No. 19–8051. Hessiani v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 786 Fed. Appx. 658.
No. 19–8057. Brown v. Indiana. Ct. App. Ind. Certiorari
denied. Reported below: 131 N. E. 3d 740.
No. 19–8060. Doe v. United States. C. A. 11th Cir. Cer-
tiorari denied.
No. 19–8081. Isaac Flores v. California. Sup. Ct. Cal.
Certiorari denied.
No. 19–8087. Jenkins v. Fields, as Administrator of the
Estate of Jenkins. Ct. App. Ohio, 8th App. Dist., Cuyahoga
County. Certiorari denied. Reported below: 2019-Ohio-2112.
No. 19–8091. Ofcer v. Washington. Ct. App. Wash. Cer-
tiorari denied. Reported below: 9 Wash. App. 2d 1075.

950 OCTOBER
TERM, 2019
May 18, 2020 590 U. S.
No. 19–8099. Smith v. Utah. Ct. App. Utah. Certiorari de-
nied.
Reported below: 2019 UT App 141, 449 P. 3d 971.
No. 19–8108. Albrecht v. Albrecht. Sup. Ct. N. H. Cer-
tiorari denied.
No. 19 – 8115. White v. EDS Care Management, LLC,
et al. Sup. Ct. Mich. Certiorari denied.
No. 19–8122. Widdield v. Mazza, Warden. C. A. 6th Cir.
Certiorari denied.
No. 19–8125. Thomas v. California. Ct. App. Cal., 2d App.
Dist., Div. 1. Certiorari denied.
No. 19–8127. Tyler v. Hooks, Warden. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 945 F. 3d 159.
No. 19–8146. Purisima v. Saul, Commissioner of Social Se-
curity. C. A. 3d Cir. Certiorari denied.
No. 19–8151. Alcocer Roa v. United States. C. A. 11th
Cir. Certiorari denied. Reported below: 753 Fed. Appx. 846.
No. 19–8171. Dawson v. Bank of New York Mellon et al.
C. A. 5th Cir. Certiorari denied. Reported below: 797 Fed.
Appx. 816.
No. 19–8184. Walsh v. United States. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 796 Fed. Appx. 337.
No. 19–8199. Bullard v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 937 F. 3d 654.
No. 19–8204. Fox v. United States. C. A. 6th Cir. Certio-
rari denied.
No. 19–8212. Soto-Garcia v. United States. C. A. 8th Cir.
Certiorari denied. Reported below: 785 Fed. Appx. 345.
No. 19–8214. Atkins v. Crowell, Warden. C. A. 6th Cir.
Certiorari denied. Reported below: 945 F. 3d 476.
No. 19–8215. Rivera-Munoz v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 789 Fed. Appx. 74.

ORDERS 951
590 U. S.
May
18, 2020
No. 19–8219. Medrano v. Frauenheim, Warden. C. A. 9th
Cir
. Certiorari denied. Reported below: 792 Fed. Appx. 422.
No. 19–8220. Macli v. United States. C. A. 11th Cir. Cer-
tiorari denied.
No. 19–8222. Mason v. United States. C. A. D. C. Cir.
Certiorari denied. Reported below: 951 F. 3d 567.
No. 19–8228. Marsh v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 944 F. 3d 524.
No. 19–8231. Juvenile Male v. United States. C. A. 2d
Cir. Certiorari denied. Reported below: 792 Fed. Appx. 86.
No. 19–8235. Eaton v. United States. C. A. 8th Cir. Cer-
tiorari denied. Reported below: 788 Fed. Appx. 418.
No. 19–8237. Romero-Salgado v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 796 Fed. Appx. 346.
No. 19–8240. Valentini v. United States. C. A. 1st Cir.
Certiorari denied. Reported below: 944 F. 3d 343.
No. 19–8249. Jackson v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 801 Fed. Appx. 941.
No. 19–8250. Gaussiran v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 787 Fed. Appx. 458.
No. 19–8254. Dowell v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 770 Fed. Appx. 879.
No. 19–8255. Medina-Rodriguez v. United States. C. A.
5th Cir. Certiorari denied. Reported below: 789 Fed. Appx. 499.
No. 19–8256. Browdy v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19–8261. Ath v. United States. C. A. 4th Cir. Certio-
rari denied. Reported below: 951 F. 3d 179.
No. 19–8263. Brown v. United States. C. A. 5th Cir. Cer-
tiorari denied. Reported below: 797 Fed. Appx. 854.
No. 19–8265. Hartley v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 785 Fed. Appx. 131.

952 OCTOBER
TERM, 2019
May 18, 2020 590 U. S.
No. 19–8267. Cascella v. United States. C. A. 1st Cir.
Cer
tiorari denied. Reported below: 943 F. 3d 1.
No. 19–8269. James v. United States. C. A. 6th Cir. Cer-
tiorari denied.
No. 19–8273. Evans v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 795 Fed. Appx. 956.
No. 19–8274. Scott v. United States. C. A. 11th Cir. Cer-
tiorari denied.
No. 19–8275. Swinton v. United States. C. A. 2d Cir.
Certiorari denied. Reported below: 797 Fed. Appx. 589.
No. 19–8277. Augustin v. United States. C. A. 6th Cir.
Certiorari denied.
No. 19–8312. Candelaria v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19–8315. Vincent v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19–8325. Hussein v. United States. C. A. 7th Cir.
Certiorari denied.
No. 18–1421. Nassau County District Attorney’s Ofce
v. Orlando. C. A. 2d Cir. Motion of respondent for leave to
proceed in forma pauperis granted. Certiorari denied. Re-
ported below: 915 F. 3d 113.
No. 19–835. Valero Energy Corp. et al. v. Environmen-
tal Protection Agency (two judgments). C. A. D. C. Cir.
Motion of National Association of Home Builders of the United
States for leave to fle brief as amicus curiae granted. Certio-
rari denied. Reported below: 936 F. 3d 628 (frst judgment); 937
F. 3d 559 (second judgment).
No. 19–867. Wexford Health et al. v. Garrett. C. A. 3d
Cir. Certiorari denied. Reported below: 938 F. 3d 69.
Justice Thomas, dissenting.
Under the Prison Litigation Reform Act of 1995 (PLRA), pris-
oners must exhaust administrative remedies before challenging
prison conditions in federal court. 110 Stat. 1321–71, 42 U. S. C.

ORDERS 953
952
Thomas,
J., dissenting
§ 1997e(a). This case presents the question whether a prisoner
who
fails to comply with that exhaustion requirement may cure
the defect by fling an amended or supplemental complaint after
his release. Because the Circuits are divided on this important
question of federal law, I would grant the petition for certiorari.
While incarcerated, respondent brought this pro se action
against prison medical personnel under 42 U. S. C. § 1983, but he
did not complete the prison's grievance process before fling suit.
After he was released, respondent fled an amended and supple-
mental complaint. The District Court dismissed respondent's
claims against petitioners for failure to exhaust administrative
remedies as required by the PLRA.
The Third Circuit vacated the District Court's judgment, con-
cluding that the PLRA's exhaustion requirement no longer applied
to respondent's claims in light of his postrelease fling. 938 F. 3d
69 (2019). The court rejected petitioners' argument that the
plain language of the statute, which speaks to when an “action
[may] be brought,” requires courts to assess PLRA compliance at
the time of the initial fling. § 1997e(a). Noting that our decision
in Jones v. Bock, 549 U. S. 199 (2007), characterized this language
as “boilerplate,” id., at 220, the court determined that the stat-
ute's text did not clearly displace normal procedural rules. The
court further concluded that, under Federal Rule of Civil Proce-
dure 15, the amended and supplemental complaint related back to
respondent's initial fling and therefore superseded the original
complaint. Because respondent was no longer a prisoner when he
amended and supplemented his complaint, the court reasoned that
he was no longer subject to the PLRA's prefling requirements.
The Third Circuit noted that its holding was consistent with
the Ninth Circuit's approach in Jackson v. Fong, 870 F. 3d 928
(2017), but conficted with the Eleventh Circuit's en banc decision
in Harris v. Garner, 216 F. 3d 970 (2000). In Harris, the Elev-
enth Circuit interpreted the same statutory language in a related
PLRA requirement and held that prisoners could not cure their
initial fling defects by amending or supplementing their com-
plaints after release. Id., at 981–982; see also Smith v. Terry,
491 Fed. Appx. 81, 83 (CA11 2012) (applying Harris to the PLRA's
exhaustion requirement). The Third Circuit's position also con-
ficts with that of the Fifth Circuit, which has recently explained
that a complaint must be dismissed and refled postrelease in
order for a prisoner to avoid the PLRA's exhaustion require-

954 OCTOBER
TERM, 2019
Thomas, J., dissenting 590 U. S.
ment. Bargher v. White, 928 F. 3d 439, 447–448 (2019). Thus,
f
our Cour ts of Appea ls are evenly div ided on the questi on
presented.*
Respondent suggests that the Fifth and Eleventh Circuits may
revisit their view in light of our decision in Jones. As an initial
matter, both Circuits have affrmed their positions in decisions
that postdate Jones. See Bargher, 928 F. 3d 439; Smith, 491 Fed.
Appx. 81. But more importantly, respondent reads our “boiler-
plate” dicta for far more than it is worth. In Jones, we rejected
court-made pleading rules for pro se litigants, explaining that “the
PLRA's screening requirement does not—explicitly or implicitly—
justify deviating from the usual procedural practice beyond the
departures specifed by the PLRA itself.” 549 U. S., at 214 (em-
phasis added). Thus, that decision actually confrms that the
PLRA's prefling requirements displace the Federal Rules of Civil
Procedure, including Rule 15. We characterized the phrase “ `no
action shall be brought' ” as “boilerplate” solely for the purpose
of explaining that the PLRA speaks to the dismissal of defective
claims, not necessarily entire complaints. Id., at 220. We have
never addressed the meaning of that language as applied to the
context at issue here.
Finally, this question warrants our review because its resolution
will have signifcant ramifcations for not only prisoners and
prison offcials but also federal courts. In recent years, nearly
10,000 lawsuits have been fled annually by prisoners challenging
prison conditions. See Administrative Offce of the United States
Cour ts, Federa l Judicia l Caseload St atistics, U. S. D istr ic t
Courts—Civil Cases Commenced, by Basis of Jurisdiction and
Nature of Suit (2019) (Table C–2). And nearly twice as many
lawsuits are fled annually raising other civil rights claims, ibid.,
which are subject to similarly worded prefling requirements
under the PLRA, see, e. g., § 1997e(e). Recognizing the PLRA's
important role in curtailing the proliferation of abusive prisoner
litigation, we have repeatedly rejected lower courts' attempts to
create end-runs around the statute's exhaustion requirement.
See, e. g., Ross v. Blake, 578 U. S. 632, 639–642 (2016); Woodford
v. Ngo, 548 U. S. 81, 91, n. 2 (2006); Porter v. Nussle, 534 U. S.
516, 520 (2002); Booth v. Churner, 532 U. S. 731, 741, n. 6 (2001).
The same may be warranted here.
*A panel of the Sixth Circuit has also agreed with the Eleventh Circuit in
dicta. See Cox v. Mayer, 332 F. 3d 422, 428 (2003).

ORDERS 955
590 U. S.
May
18, 2020
Because this petition presents an important question that has
div
ided the Circuits, it deserves our review. See this Court's
Rule 10(a). I see no reason to continue allowing certain prison-
ers in the Third and Ninth Circuits to proceed unencumbered by
the PLRA's exhaustion requirement while those in the Fifth and
Eleventh Circuits are required to comply. I therefore respect-
fully dissent from the denial of certiorari.
No. 19–1021. Jessop et al. v. City of Fresno, California,
et al. C. A. 9th Cir. Motions of Institute for Justice, Cato
Institute et al., New Civil Liberties Alliance, National Association
of Criminal Defense Lawyers, Constitutional Accountability Cen-
ter, and DKT Liberty Project et al. for leave to fle briefs as
amici curiae granted. Certiorari denied. Reported below: 936
F. 3d 937.
No. 19–7810. Eaton v. Pacheco, Warden. C. A. 10th Cir.
Certiorari denied. Justice Gorsuch took no part in the consid-
eration or decision of this petition. Reported below: 931 F. 3d
1009.
No. 19–7915. DeAtley v. Williams, Executive Director,
Colorado Department of Corrections, et al. C. A. 10th
Cir. Certiorari denied. Justice Gorsuch took no part in the
consideration or decision of this petition. Reported below: 782
Fed. Appx. 736.
No. 19 – 8291. Yazzie v. United States. C. A. 10th Cir.
Certiorari denied. Justice Gorsuch took no part in the consid-
eration or decision of this petition. Reported below: 791 Fed.
Appx. 777.
No. 19–8293. Walker v. United States. C. A. 3d Cir. Cer-
tiorari denied. Justice Alito took no part in the consideration
or decision of this petition.
Rehearing Denied
No. 19–876. Ramirez v. Hogue et al., 589 U. S. 1276;
No. 19–1005. Hotze Health Wellness Center Interna-
tional One, LLC, et al. v. Environmental Research Cen-
ter, Inc., 589 U. S. 1277;
No. 19 – 6426. Ramirez v. Davis, Director, Texas De-
partment of Criminal Justice, Correctional Institutions
Division, 589 U. S. 1254;

956 OCTOBER
TERM, 2019
May 18, 19, 20, 2020 590 U. S.
No. 19–6657. Smith v. Scott et al., 589 U. S. 1181;
N
o. 19 – 6783. Jarvis v. Allison, Sheriff, Pearl River
County, Mississippi, et al., 589 U. S. 1212;
No. 19–6839. Smith v. Underwood, Attorney General of
New York, et al., 589 U. S. 1213;
No. 19–7017. Williams v. Taco Bell, 589 U. S. 1218;
No. 19–7023. Cotton v. Eckstein, Warden, 589 U. S. 1218;
No. 19–7085. Oeur v. County of Los Angeles, California,
589 U. S. 1220;
No. 19–7228. Carter v. United States, 589 U. S. 1224;
No. 19–7230. In re Lopez, 589 U. S. 1263;
No. 19–7374. In re Wallace, 589 U. S. 1274;
No. 19–7413. Clancy v. Florida Department of Correc-
tions et al., 589 U. S. 1283;
No. 19–7489. Duran v. Diaz, Secretary, California De-
partment of Corrections and Rehabilitation, 589 U. S.
1261;
No. 19–7716. Wallace v. United States, 589 U. S. 1288;
No. 19–7792. In re Lopez, 589 U. S. 1293; and
No. 19–7944. In re Beebe, 589 U. S. 1293. Petitions for re-
hearing denied.
May 19, 2020
Certiorari Denied
No. 19–8483 (19A1040). Barton v. Stange, Warden. C. A.
8th Cir. Application for stay of execution of sentence of death,
presented to Justice Gorsuch, and by him referred to the Court,
denied. Reported below: 959 F. 3d 867.
May 20, 2020
Miscellaneous Order
No. 19A1035. Department of Justice v. House Committee
on the Judiciary. Application for stay of the mandate, pre-
sented to The Chief Justice, and by him referred to the Court,
granted. Issuance of the mandate of the United States Court of
Appeals for the District of Columbia Circuit, case No. 19–5288, is
stayed pending fling and disposition of a petition for writ of
certiorari, if such petition is fled on or before June 1, 2020, by 5
p.m. Should the petition for writ of certiorari be denied, this
stay shall terminate automatically. In the event the petition for

ORDERS 957
590 U. S.
May
20, 21, 26, 2020
writ of certiorari is granted, the stay shall terminate upon the
issuance
of the judgment of this Court. If no petition for writ
of certiorari is fled on or before June 1, 2020, by 5 p.m., the stay
shall terminate.
May 21, 2020
Miscellaneous Order
No. 19A1038. Idaho Department of Correction et al. v.
Edmo. D. C. Idaho. Application for stay, presented to Justice
Kagan, and by her referred to the Court, denied. Justice
Thomas and Justice Alito would grant the application.
May 26, 2020
Certiorari Granted—Vacated and Remanded
No. 19–7685. Lindsey v. United States. C. A. 5th Cir.
Motion of petitioner for leave to proceed in forma pauperis
granted. Certiorari granted, judgment vacated, and case re-
manded for further consideration in light of Davis v. United
States, 589 U. S. 345 (2020) (per curiam). Reported below: 774
Fed. Appx. 261.
Certiorari Dismissed
No. 19–8059. Arunachalam v. Uber Technologies, Inc.
C. A. 5th Cir. Motion of petitioner for leave to proceed in forma
pauperis denied, and certiorari dismissed. See this Court's
Rule 39.8.
Miscellaneous Orders
No. 19A1021. Perry-Bey et al. v. City of Norfolk, Vir-
ginia, et al. Sup. Ct. Va. Application for stay, addressed to
Justice Sotomayor and referred to the Court, denied.
No. 19A1041. Williams, Warden, et al. v. Wilson et al.
D. C. N. D. Ohio. Application for stay, presented to Justice
Sotomayor, and by her referred to the Court, denied. The Gov-
ernment is seeking a stay only of the District Court's April 22
preliminary injunction. But on May 19, the District Court issued
a new order enforcing the preliminary injunction and imposing
additional measures. The Government has not sought review of
or a stay of the May 19 order in the United States Court of
Appeals for the Sixth Circuit. Particularly in light of that proce-

958 OCTOBER
TERM, 2019
May 26, 2020 590 U. S.
dural posture, the Court declines to stay the District Court's
Apr
il 22 preliminary injunction without prejudice to the Govern-
ment seeking a new stay if circumstances warrant. Justice
Thomas, Justice Alito, and Justice Gorsuch would grant
the application.
No. D–3058. In re Disbarment of Romero. Disbarment
entered. [For earlier order herein, see 589 U. S. 1129.]
No. 19M138. Smith v. University of Chicago Medical
Center. Motion to direct the Clerk to fle petition for writ of
certiorari out of time denied.
No. 18–107. R. G. & G. R. Harris Funeral Homes, Inc. v.
Equal Employment Opportunity Commission et al. C. A.
6th Cir. [Certiorari granted, 587 U. S. 960.] Motion to substi-
tute Donna Stephens, as Trustee of the Aimee A. and Donna
Stephens Trust, as respondent in place of Aimee Stephens, de-
ceased, granted.
No. 19–8006. Greiner v. Macomb County, Michigan, et al.
C. A. 6th Cir. Motion of petitioner for leave to proceed in forma
pauperis denied. Petitioner is allowed until June 16, 2020,
within which to pay the docketing fee required by this Court's
Rule 38(a).
No. 19–1140. In re Perkins; and
No. 19–8033. In re Hampton. Petitions for writs of manda-
mus denied.
No. 19–8284. In re Young. Petition for writ of mandamus
and/or prohibition denied.
No. 19–8351. In re Raghubir. Motion of petitioner for leave
to proceed in forma pauperis denied, and petition for writ of
mandamus and/or prohibition dismissed. See this Court's Rule
39.8.
Certiorari Denied
No. 19–871. Johnson v. Kiser, Warden. Sup. Ct. Va. Cer-
tiorari denied.
No. 19– 873. Geophysical Service, Inc. v. TGS–NOPEC
Geophysical Co. C. A. 5th Cir. Certiorari denied. Reported
below: 784 Fed. Appx. 253.

ORDERS 959
590 U. S.
May
26, 2020
No. 19–917. Joslyn Manufacturing Co., LLC, et al. v.
V
albruna Slater Steel Corp. et al. C. A. 7th Cir. Certio-
rari denied. Reported below: 934 F. 3d 553.
No. 19 – 972. Mc Millen v. New Caney Independent
School District. C. A. 5th Cir. Certiorari denied. Reported
below: 939 F. 3d 640.
No. 19–974. Schmitt et al. v. LaRose, Ohio Secretary of
State. C. A. 6th Cir. Certiorari denied. Reported below: 933
F. 3d 628.
No. 19–992. Skipper, Warden v. Byrd. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 940 F. 3d 248.
No. 19–1048. Ramos v. Barr, Attorney General. C. A.
11th Cir. Certiorari denied. Reported below: 802 Fed. Appx.
510.
No. 19–1056. Noem, Governor of South Dakota, et al. v.
Flandreau Santee Sioux Tribe. C. A. 8th Cir. Certiorari
denied. Reported below: 938 F. 3d 928.
No. 19–1101. Canada v. Merlini. C. A. 1st Cir. Certiorari
denied. Reported below: 926 F. 3d 21.
No. 19–1131. Actavis Laboratories FL, Inc. v. Nalpropion
Pharmaceuticals LLC. C. A. Fed. Cir. Certiorari denied.
Reported below: 934 F. 3d 1344.
No. 19 –1148. Bruno, as Parent, Guardian, and Next
Friend of R. B., a Minor, et al. v. Northside Independent
School District. C. A. 5th Cir. Certiorari denied. Reported
below: 788 Fed. Appx. 287.
No. 19–1152. ISL Loan Trust et al. v. Millennium Lab
Holdings II, LLC, et al. C. A. 3d Cir. Certiorari denied.
Reported below: 945 F. 3d 126.
No. 19–1160. Murphy v. Ofce of Disciplinary Counsel.
Sup. Ct. Pa. Certiorari denied.
No. 19–1164. Johnson v. Workers’ Compensation Appeals
Board et al. Ct. App. Cal., 2d App. Dist., Div. 3. Certiorari
denied.
No. 19–1167. Kennedy v. Morris, Warden, et al. C. A.
9th Cir. Certiorari denied.

960 OCTOBER
TERM, 2019
May 26, 2020 590 U. S.
No. 19–1171. McDonald v. Citibank, N. A., et al. Ct. App.
Colo
. Certiorari denied.
No. 19–1178. Zabka et al. v. United States et al. C. A.
7th Cir. Certiorari denied. Reported below: 778 Fed. Appx. 401.
No. 19–1183. Odyssey Contracting Corp. v. L & L Paint-
ing Co., Inc. C. A. 3d Cir. Certiorari denied. Reported below:
944 F. 3d 483.
No. 19–1187. Matco Tools Corp. et al. v. United States
District Court for the Northern District of California
et al. C. A. 9th Cir. Certiorari denied. Reported below: 781
Fed. Appx. 681.
No. 19–1192. Missouri ex rel. Key Insurance Co. v. Rol-
dan, Judge, Circuit Court of Missouri, Jackson County,
et al. Sup. Ct. Mo. Certiorari denied. Reported below: 587
S. W. 3d 638.
No. 19–1199. Higginson v. Becerra, Attorney General of
California, et al. C. A. 9th Cir. Certiorari denied. Re-
ported below: 786 Fed. Appx. 705.
No. 19–1210. Harry’s Nurses Registry et al. v. Gayle
et al. C. A. 2d Cir. Certiorari denied. Reported below: 802
Fed. Appx. 1.
No. 19–1223. Taylor, as Representative of the Estate
of Lilly, Deceased, et al. v. McLennan County, Texas,
et al. C. A. 5th Cir. Certiorari denied. Reported below: 790
Fed. Appx. 634.
No. 19–1236. Evens v. Evens. Sup. Ct. S. D. Certiorari
denied.
No. 19 –1238. Watson v. Mc Carthy, Secretary of the
Army. C. A. 5th Cir. Certiorari denied. Reported below: 793
Fed. Appx. 277.
No. 19–1245. Kwushue v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19–1247. Lovingood v. Discovery Communications,
Inc., et al. C. A. 11th Cir. Cer ti orar i denied. Reported
below: 800 Fed. Appx. 840.

ORDERS 961
590 U. S.
May
26, 2020
No. 19–6668. Wolf et al. v. Idaho Board of Correction
et
al. C. A. 9th Cir. Certiorari denied. Reported below: 772
Fed. Appx. 557.
No. 19–6926. Campbell v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 937 F. 3d 1254.
No. 19–7061. Smith v. United States. C. A. 11th Cir. Cer-
tiorari denied. Reported below: 788 Fed. Appx. 654.
No. 19–7288. Gammell v. United States. C. A. 8th Cir.
Certiorari denied. Reported below: 932 F. 3d 1175.
No. 19–7456. Carroll v. Alabama. Sup. Ct. Ala. Certio-
rari denied.
No. 19–7629. Hill-Lomax v. Vittetoe et al. Sup. Ct. Iowa.
Certiorari denied.
No. 19–8022. Dixon v. Shinn, Director, Arizona Depart-
ment of Corrections, et al. C. A. 9th Cir. Certiorari de-
nied. Reported below: 932 F. 3d 789.
No. 19–8047. Daniel v. Ward, Commissioner, Georgia De-
partment of Corrections. C. A. 11th Cir. Certiorari denied.
Reported below: 783 Fed. Appx. 1007.
No. 19–8052. Almahmmody v. Tennessee. Ct. Crim. App.
Tenn. Certiorari denied.
No. 19–8058. Brack, aka Barrack, aka Black v. New Jer-
sey. Super. Ct. N. J., App. Div. Certiorari denied.
No. 19–8068. Boudette v. Boudette, nka Oskerson. Sup.
Ct. Mont. Certiorari denied. Reported below: 397 Mont. 519,
453 P. 3d 893.
No. 19–8069. Newton v. Ohio. Ct. App. Ohio, 8th App. Dist.,
Cuyahoga County. Certiorari denied. Reported below: 2019-
Ohio-3566.
No. 19–8070. Lai v. United States et al. C. A. 2d Cir.
Certiorari denied.
No. 19–8073. Baker v. Clark, Superintendent, State Cor-
rectional Institution at Albion, et al. C. A. 3d Cir. Cer-
tiorari denied.

962 OCTOBER
TERM, 2019
May 26, 2020 590 U. S.
No. 19–8074. Gunter v. Pulsipher. C. A. 10th Cir. Certio-
rar
i denied.
No. 19–8075. Mendel v. UBER Technologies, Inc., et al.
(Reported below: 805 Fed. Appx. 485); Mendel v. UBER Tech-
nologies, Inc., et al.; and Mendel v. Chao, Secretary of
Transportation, et al. C. A. 9th Cir. Certiorari denied.
No. 19–8077. Anderson v. Valenzuela et al. C. A. 9th
Cir. Certiorari denied.
No. 19 – 8078. Banks v. Illinois. App. Ct. Ill., 5th Dist.
Certiorari denied.
No. 19–8084. Young v. Halligan. C. A. 3d Cir. Certiorari
denied. Reported below: 789 Fed. Appx. 928.
No. 19–8085. Zamichieli v. McGinley, Superintendent,
State Correctional Institution at Coal Township, et al.
C. A. 3d Cir. Certiorari denied.
No. 19–8086. Jackson v. Taylor, Interim Commissioner,
Mississippi Department of Corrections. C. A. 5th Cir.
Certiorari denied.
No. 19–8088. Rodrigues v. Massachusetts. App. Ct. Mass.
Certiorari denied. Reported below: 96 Mass. App. 105, 132 N. E.
3d 1067.
No. 19–8093. Passalacqua v. McDonald, Warden. C. A.
9th Cir. Certiorari denied.
No. 19–8096. Noble v. Jackson, Warden. C. A. 6th Cir.
Certiorari denied.
No. 19–8124. Garcia Velasco v. Barr, Attorney General.
C. A. 9th Cir. Certiorari denied.
No. 19–8135. Tanamor-Steffan v. Barr, Attorney Gen-
eral. C. A. 5th Cir. Certiorari denied.
No. 19 – 8169. Madero-Gil v. United States (Repor ted
below: 797 Fed. Appx. 890); Majano Maldonado v. United
States (798 Fed. Appx. 821); Hernandez Lozano v. United
States (796 Fed. Appx. 227); Reynoso-Valdez v. United
States (798 Fed. Appx. 833); and Melendez-Wisenthal, aka

ORDERS 963
590 U. S.
May
26, 2020
Diaz Isaguirre, aka Aguillar, aka Antonio Gonzalez v.
U
nited States (797 Fed. Appx. 876). C. A. 5th Cir. Certio-
rari denied.
No. 19–8181. Jordan v. North Carolina. C. A. 4th Cir.
Certiorari denied. Reported below: 771 Fed. Appx. 286.
No. 19–8194. Crupi v. New York. App. Div., Sup. Ct. N. Y.,
2d Jud. Dept. Certiorari denied. Reported below: 172 App. Div.
3d 898, 100 N. Y. S. 3d 56.
No. 19–8196. Gentry v. Arizona. Ct. App. Ariz. Certiorari
denied. Reported below: 247 Ariz. 381, 449 P. 3d 707.
No. 19–8208. Harris v. Jennings, Warden. C. A. 8th Cir.
Certiorari denied.
No. 19–8232. Jackson v. Mississippi. Sup. Ct. Miss. Certio-
rari denied.
No. 19–8248. Wilmore v. United States. C. A. 11th Cir.
Certiorari denied.
No. 19–8268. Brown v. Desrochers et al. C. A. 6th Cir.
Certiorari denied.
No. 19–8279. LaGasse v. Inch, Secretary, Florida De-
partment of Corrections. C. A. 11th Cir. Certiorari denied.
No. 19–8294. Johnson v. Mississippi. Ct. App. Miss. Cer-
tiorari denied.
No. 19–8295. Jenkins v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 778 Fed. Appx. 227.
No. 19 – 8308. Gooden v. United States Navy/ United
States Marine Corps et al. C. A. 4th Cir. Certiorari denied.
Reported below: 791 Fed. Appx. 411.
No. 19–8310. Haynes v. Peters, Director, Oregon De-
partment of Corrections, et al. C. A. 9th Cir. Certiorari
denied.
No. 19–8316. Troy-McKoy v. New York City Department
of Parks and Recreation. Ct. App. N. Y. Certiorari denied.
Reported below: 34 N. Y. 3d 905, 137 N. E. 3d 1106.
No. 19–8328. Strege v. United States. C. A. 1st Cir. Cer-
tiorari denied.

964 OCTOBER
TERM, 2019
May 26, 2020 590 U. S.
No. 19–8329. Strege v. United States. C. A. 1st Cir. Cer-
ti
orari denied.
No. 19–8333. Ali, aka Perry v. United States. C. A. 4th
Cir. Certiorari denied. Reported below: 791 Fed. Appx. 430.
No. 19–8334. Butler v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 790 Fed. Appx. 782.
No. 19–8336. Reyes-Yanez v. United States. C. A. 9th Cir.
Certiorari denied. Reported below: 796 Fed. Appx. 427.
No. 19–8339. Santiago v. United States. C. A. 1st Cir.
Certiorari denied. Reported below: 947 F. 3d 1.
No. 19–8340. Scruggs v. United States. C. A. 8th Cir.
Certiorari denied. Reported below: 799 Fed. Appx. 432.
No. 19–8342. Duheart v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 794 Fed. Appx. 440.
No. 19–8361. Price v. United States. C. A. 6th Cir. Cer-
tiorari denied.
No. 19–8364. Vance v. United States. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 956 F. 3d 846.
No. 19–8376. Guerrero-Castro v. United States. C. A.
1st Cir. Certiorari denied. Reported below: 939 F. 3d 16.
No. 17–1236. Republic of Sudan et al. v. Owens et al.
C. A. D. C. Cir. Motion of former U. S. Ambassadors for leave to
fle brief as amici curiae granted. Certiorari denied. Justice
Kavanaugh took no part in the consideration or decision of this
motion and this petition. Reported below: 864 F. 3d 751.
No. 17–1406. Republic of Sudan et al. v. Opati, In Her
Own Right, and as Executrix of the Estate of Opati, De-
ceased, et al. C. A. D. C. Cir. Certiorari denied. Justice
Kavanaugh took no part in the consideration or decision of this
petition. Reported below: 864 F. 3d 751.
No. 19–766. North Carolina v. Courtney. Sup. Ct. N. C.
Motion of respondent for leave to proceed in forma pauperis
granted. Certiorari denied. Reported below: 372 N. C. 458, 831
S. E. 2d 260.

ORDERS 965
590 U. S.
May
26, 29, 2020
No. 19–1012. General Electric Co. v. Raytheon Technol-
ogies
Corp., fka United Technologies Corp. C. A. Fed. Cir.
Certiorari denied. Justice Breyer and Justice Alito took no
part in the consideration or decision of this petition. Reported
below: 928 F. 3d 1349.
No. 19–5921. Montgomery v. United States. C. A. 8th Cir.
Motion of Ethics Bureau at Yale for leave to fle brief as amicus
curiae granted. Certiorari denied.
Rehearing Denied
No. 19–943. Vazirabadi v. Denver Health and Hospital
Authority et al., 589 U. S. 1294;
No. 19–6877. Brown v. Florida, 589 U. S. 1265;
No. 19–7169. Cobble v. United States, 589 U. S. 1222;
No. 19–7296. In re Martinez, 589 U. S. 1263;
No. 19–7302. Shampine v. Sarver’s Realty et al., 589 U. S.
1280;
No. 19–7391. Davis v. Tegley et al., 589 U. S. 1296;
No. 19–7402. Sanders v. Hennepin County Human Serv-
ice and Public Health Department Child Support et al.,
589 U. S. 1296;
No. 19–7471. Brown v. San Bernardino County, Califor-
nia, et al., 589 U. S. 1284; and
No. 19–7605. Kane v. Pennsylvania, 589 U. S. 1308. Peti-
tions for rehearing denied.
May 29, 2020
Miscellaneous Orders
No. 19A1039. Marlowe v. LeBlanc, Secretary, Louisiana
Department of Public Safety and Corrections, et al.
C. A. 5th Cir. Application to vacate stay, presented to Justice
Alito, and by him referred to the Court, denied. Nothing in
this order should be construed to preclude applicant from fling a
grievance setting out specifcally the relief he requests be pro-
vided to him in prison, and in the event that such request is fled,
it should be decided promptly.
No. 19A1044. South Bay United Pentecostal Church
et al. v. Newsom, Governor of California, et al. Applica-
tion for injunctive relief, presented to Justice Kagan, and by

966 OCTOBER
TERM, 2019
May 29, 2020 590 U. S.
her referred to the Court, denied. Justice Thomas, Justice
Alito,
Justice Gorsuch, and Justice Kavanaugh would grant
the application.
Chief Justice Roberts, concurring.
The Governor of California's Executive Order aims to limit the
spread of COVID–19, a novel severe acute respiratory illness that
has killed thousands of people in California and more than 100,000
nationwide. At this time, there is no known cure, no effective
treatment, and no vaccine. Because people may be infected but
asymptomatic, they may unwittingly infect others. The Order
places temporary numerical restrictions on public gatherings to
address this extraordinary health emergency. State guidelines
currently limit attendance at places of worship to 25% of building
capacity or a maximum of 100 attendees.
Applicants seek to enjoin enforcement of the Order. “Such a
request demands a signifcantly higher justifcation than a request
for a stay because, unlike a stay, an injunction does not simply
suspend judicial alteration of the status quo but grants judicial
intervention that has been withheld by lower courts.” Respect
Maine PAC v. McKee, 562 U. S. 996 (2010) (internal quotation
marks omitted). This power is used where “the legal rights at
issue are indisputably clear” and, even then, “sparingly and only
in the most critical and exigent circumstances.” S. Shapiro,
K. Geller, T. Bishop, E. Hartnett & D. Himmelfarb, Supreme
Court Practice § 17.4, p. 17–9 (11th ed. 2019) (internal quotation
marks omitted) (collecting cases).
Although California's guidelines place restrictions on places of
worship, those restrictions appear consistent with the Free Exer-
cise Clause of the First Amendment. Similar or more severe
restrictions apply to comparable secular gatherings, including lec-
tures, concerts, movie showings, spectator sports, and theatrical
performances, where large groups of people gather in close prox-
imity for extended periods of time. And the Order exempts or
treats more leniently only dissimilar activities, such as operating
grocery stores, banks, and laundromats, in which people neither
congregate in large groups nor remain in close proximity for
extended periods.
The precise question of when restrictions on particular social
activities should be lifted during the pandemic is a dynamic and

ORDERS 967
965
Ka
vanaugh, J., dissenting
fact-intensive matter subject to reasonable disagreement. Our
Constituti
on principally entrusts “[t]he safety and the health of
the people” to the politically accountable offcials of the States
“to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11,
38 (1905). When those offcials “undertake[ ] to act in areas
fraught with medical and scientifc uncertainties,” their latitude
“must be especially broad.” Marshall v. United States, 414 U. S.
417, 427 (1974). Where those broad limits are not exceeded, they
should not be subject to second-guessing by an “unelected federal
judiciary,” which lacks the background, competence, and expertise
to assess public health and is not accountable to the people. See
Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S.
528, 546 (1985).
That is especially true where, as here, a party seeks emergency
relief in an interlocutory posture, while local offcials are actively
shaping their response to changing facts on the ground. The
notion that it is “indisputably clear” that the Government's limita-
tions are unconstitutional seems quite improbable.
Justice Kavanaugh, w ith whom Justice Thomas and
Justice Gorsuch join, dissenting.
I would grant the Church's requested temporary injunction be-
cause California's latest safety guidelines discriminate against
places of worship and in favor of comparable secular businesses.
Such discrimination violates the First Amendment.
In response to the COVID–19 health crisis, California has now
limited attendance at religious worship services to 25% of building
capacity or 100 attendees, whichever is lower. The basic constitu-
tional problem is that comparable secular businesses are not subject
to a 25% occupancy cap, including factories, offces, supermarkets,
restaurants, retail stores, pharmacies, shopping malls, pet grooming
shops, bookstores, forists, hair salons, and cannabis dispensaries.
South Bay United Pentecostal Church has applied for tempo-
rary injunctive relief from California's 25% occupancy cap on reli-
gious worship services. Importantly, the Church is willing to
abide by the State's rules that apply to comparable secular busi-
nesses, including the rules regarding social distancing and hy-
giene. But the Church objects to a 25% occupancy cap that is
imposed on religious worship services but not imposed on those
comparable secular businesses.

968 OCTOBER
TERM, 2019
Kavanaugh, J., dissenting 590 U. S.
In my view, California's discrimination against religious wor-
sh
ip services contravenes the Constitution. As a general matter,
the “government may not use religion as a basis of classifcation
for the imposition of duties, penalties, privileges or benefts.”
McDaniel v. Paty, 435 U. S. 618, 639 (1978) (Brennan, J., concur-
ring in judgment). This Court has stated that discrimination
against religion is “odious to our Constitution.” Trinity Lu-
theran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 467
(2017); see also, e. g., 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); Church of Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U. S. 520 (1993); Lamb's Chapelv. Center Moriches
Union Free School Dist., 508 U. S. 384 (1993); McDaniel, 435
U. S. 618.
To justify its discriminatory treatment of religious worship
services, California must show that its rules are “justifed by a
compelling governmental interest” and “narrowly tailored to ad-
vance that interest.” Lukumi, 508 U. S., at 531–532. California
undoubtedly has a compelling interest in combating the spread of
COVID–19 and protecting the health of its citizens. But “restric-
tions inexplicably applied to one group and exempted from an-
other do little to further these goals and do much to burden
religious freedom.” Roberts v. Neace, 958 F. 3d 409, 414 (CA6
2020) (per curiam). What California needs is a compelling justi-
fcation for distinguishing between (i) religious worship services
and (ii) the litany of other secular businesses that are not subject
to an occupancy cap.
California has not shown such a justifcation. The Church has
agreed to abide by the State's rules that apply to comparable
secular businesses. That raises important questions: “Assuming
all of the same precautions are taken, why can someone safely
walk down a grocery store aisle but not a pew? And why can
someone safely interact with a brave deliverywoman but not with
a stoic minister?” Ibid.
The Church and its congregants simply want to be treated
equally to comparable secular businesses. California already
trusts its residents and any number of businesses to adhere to
proper social distancing and hygiene practices. The State cannot
“assume the worst when people go to worship but assume the
best when people go to work or go about the rest of their daily
lives in permitted social settings.” Ibid.

ORDERS 969
590 U. S.
May
29, 2020
California has ample options that would allow it to combat the
s
pread of COVID–19 without discriminating against relig ion.
The State could “insist that the congregants adhere to social-
distancing and other health requirements and leave it at that—
just as the Governor has done for comparable secular activities.”
Id., at 415. Or alternatively, the State could impose reasonable
occupancy caps across the board. But absent a compelling justi-
fcation (which the State has not offered), the State may not take
a looser approach with, say, supermarkets, restaurants, factories,
and offces while imposing stricter requirements on places of
worship.
The State also has substantial room to draw lines, especially in
an emergency. But as relevant here, the Constitution imposes
one key restriction on that line-drawing: The State may not dis-
criminate against religion.
In sum, California's 25% occupancy cap on religious worship
services indisputably discriminates against religion, and such dis-
crimination violates the First Amendment. See Ohio Citizens
for Responsible Energy, Inc. v. NRC, 479 U. S. 1312 (1986) (Scalia,
J., in chambers). The Church would suffer irreparable harm from
not being able to hold services on Pentecost Sunday in a way
that comparable secular businesses and persons can conduct their
activities. I would therefore grant the Church's request for a
temporary injunction. I respectfully dissent.
No. 19A1046. Elim Romanian Pentecostal Church et al.
v. Pritzker, Governor of Illinois. Application for injunctive
relief, presented to Justice Kavanaugh, and by him referred to
the Court, denied. The Illinois Department of Public health is-
sued new guidance on May 28. The denial is without prejudice
to applicants fling new motion for appropriate relief if circum-
stances warrant.