590 U.S. 595•Lomax v. Ortiz-Marquez
590 U.S. 595Supreme Court Of The United States8 giu 2020
A Prison Litigation Reform Act of 1995 provision that generally prevents a prisoner from bringing suit in forma pauperis if he has had three or more prior suits “dismissed on the ground[ ] that [they] . . . fail[ed] to state a claim upon which relief may be granted,” 28 U. S. C. §1915(g), refers to any dismissal for failure to state a claim, whether with prejudice or without.
590
2
of2
P R E L I M I N A R Y P R I N T
Vol. 590 (Pp. 432–830; 970–1043)
UNITED STATES REPORTS
Part 2
Volume 590 U. S. - Part 2
Pages 432–830; 970–1043
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 1 Through June 16, 2020
Amendments to Federal Rules of Appellate Procedure
Amendments to Federal Rules of Bankruptcy Procedure
Amendment to Federal Rules of Civil Procedure
Amendment to Federal Rules of Evidence
End of Volume
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.
ofcers 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 2)
APPALACHIAN TRAIL. See Mineral Leasing Act.
APPOINTMENTS CLAUSE. See Constitutional Law.
ARBITRATION.
Nonsignatory to arbitration agreement—Ability to compel arbitra-
tion.—Convention on Recognition and Enforcement of Foreign Arbitral
Awards does not confict with domestic equitable estoppel doctrines that
permit enforcement of arbitration agreements by nonsignatories to those
agreements. GE Energy Power Conversion France SAS v. Outokumpu
Stainless USA, LLC, p. 432.
ARTICLE III STANDING.
Employee Retirement Income Security Act of 1974—Lawsuit for fdu-
ciary misconduct.—Because petitioners, whose defned-beneft retirement
plan guarantees them a fxed payment each month regardless of plan's
value or its fduciaries' investment decisions, have no concrete stake in
this suit against the fduciaries, they lack Article III standing. Thole v.
U. S. Bank N. A., p. 538.
CIVIL RIGHTS ACT OF 1964.
Prohibited employment discrimination—Sexual orientation.—Em-
ployer who fres an individual merely for being gay or transgender violates
Title VII of Act. Bostock v. Clayton County, p. 644.
CONSTITUTIONAL LAW.
Appointments Clause—Members of Puerto Rico's Financial Oversight
and Management Board.—Clause does not restrict the appointment or
selection of members of Puerto Rico's Financial Oversight and Manage-
ment Board, who are appointed by President without Senate's advice and
consent. Financial Oversight and Management Bd. for Puerto Rico v.
Aurelius Investment, LLC, p. 448.
Effective assistance of counsel—Allegation of defcient performance—
Showing of prejudice.—Because there is a signifcant question whether
court below properly considered whether counsel's clearly defcient per-
formance prejudiced Andrus, judgment of Texas Court of Criminal Ap-
iii
iv INDEX
CONSTITUTIONAL
LAW—Continued.
peals is vacated and case is remanded for court to address prejudice ques-
ti
on. Andrus v. Texas, p. 806.
CONVENTION AGAINST TORTURE. See Immigration Law.
CONVENTION ON RECOGNITION AND ENFORCEMENT OF FOR-
EIGN ARBITRAL AWARDS. See Arbitration.
DEFINED-BENEFIT PLANS. See Article III Standing.
DISMISSAL OF ACTIONS. See Prison Litigation Reform Act of
1995.
EFFECTI V E A SSISTANCE OF COU NSEL. See Con stitutiona l
Law.
EMPLOYMENT DISCRIMINATION. See Civil Rights Act of 1964.
EMPLOYMENT RETIREMENT INCOME SECURITY ACT OF 1974.
See Article III Standing.
EQUITABLE ESTOPPEL. See Arbitration.
FAILURE TO STATE A CLAIM. See Prison Litigation Reform Act
of 1995.
FEDERAL RULES OF APPELLATE PROCEDURE.
Amendments to Rules, p. 1019.
FEDERAL RULES OF BANKRUPTCY PROCEDURE.
Amendments to Rules, p. 1025.
FEDERAL RULES OF CIVIL PROCEDURE.
1. Amendment to Rule, p. 1033.
2. Motion under Rule 59(e)—Question whether successive habeas peti-
tion.—Because motion to alter or amend a habeas court's judgment is not a
second or successive habeas petition under 28 U. S. C. § 2244(b), Banister's
appeal was timely. Banister v. Davis, p. 504.
FEDERAL RULES OF EVIDENCE.
Amendments to Rule, p. 1039.
GAY RIGHTS. See Civil Rights Act of 1964.
HABEAS CORPUS. See Federal Rules of Civil Procedure.
IMMIGRATION LAW.
Denial of request for withholding of removal—Court of Appeals juris-
diction to review factual fndings.—Title 8 U. S. C. §§ 1252(a)(2)(C) and (D)
do not preclude judicial review of a removable noncitizen's factual chal-
INDEX v
IMMIGRA
TION LAW—Continued.
lenges to an order denying relief under international Convention Against
T
orture, which protects noncitizens from removal to a country where they
would likely face torture. Nasrallah v. Barr, p. 573.
INEFFECTIVE ASSISTANCE OF COUNSEL. See Constitutional
Law.
IN FORMA PAUPERIS. See Prison Litigation Reform Act of 1995.
INTERNATIONAL CONVENTIONS. See Arbitration.
INTERNATIONAL CONVENTIONS. See Immigration Law.
MINERAL LEASING ACT.
Granting of rights of way through national forest lands—Authority of
U. S. Forest Service.—Because Department of Interior's decision to assign
responsibility over Appalachian Trail to National Park Service did not
transform land over which Trail passes into land within National Park
System, Forest Service had authority under Mineral Leasing Act to grant
a natural-gas pipeline right-of-way through lands in George Washington
Forest traversed by Appalachian Trail. United States Forest Service v.
Cowpasture River Preservation Assn., p. 604.
NATIONAL PARKS. See Mineral Leasing Act.
PREJUDICE. See Constitutional Law.
PRISON LITIGATION REFORM ACT OF 1995.
D ismissa l fo r fai lure t o sta te a cl aim—Str i ke unde r 28 U. S. C.
§ 1915(G).—Act provision that generally prevents a prisoner from bring-
ing suit in forma pauperis if he has had three or more prior suits “dis-
missed on the ground[ ] that [they] . . . fail[ed] to state a claim upon which
relief may be granted” refers to any dismissal for failure to state a claim,
whether with prejudice or without. Lomax v. Ortiz-Marquez, p. 595.
PUERTO RICO. See Constitutional Law.
REMOVAL. See Immigration Law.
RIGHTS OF WAY. See Mineral Leasing Act.
SEX DISCRIMINATION. See Civil Rights Act of 1964.
SUCCESSIVE HABEAS PETITIONS. See Federal Rules of Civil
Procedure.
SUPREME COURT.
1. Amendments to Federal Rules of Appellate Procedure, p. 1019.
2. Amendments to Federal Rules of Bankruptcy Procedure, p. 1025.
vi INDEX
SUPREME
COURT—Continued.
3. Amendment to Federal Rules of Civil Procedure, p. 1033.
4.
Amendment to Federal Rules of Evidence, p. 1039.
TEXAS. See Constitutional Law.
TI M ELI N ESS OF ACTIONS. See Federa l Ru les of Civ i l
Procedure.
TORTURE. See Immigration Law.
TRANSGENDER RIGHTS. See Civil Rights Act of 1964.
UNITED STATES FOREST SERVICE. See Mineral Leasing Act.
WORDS AND PHRASES.
“[D]ismissed on the ground[ ] that [they] . . . fail[ed] to state a claim
upon which relief may be granted.” 28 U. S. C. § 1915(G). Lomax v.
Ortiz-Marquez, p. 595.
CUMULATIV E TABLE OF CA SES REPORTED
(Vol. 590 U. S., Parts 1 and 2)
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
Albence v. Guzman Chavez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Aljindi v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
Allen, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Allison; Jarvis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Alridge v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
American Assn. of Political Consultants, Inc.; Barr v. . . . . . . . . . 977
Andrus v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806
Archer & White Sales, Inc.; Henry Schein, Inc. v. . . . . . . . . . . . . 991
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
A. S. v. Montgomery Cty. Children and Youth Services . . . . . . . . 990
Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc. . . . . . . . 919
vii
viii T
ABLE OF CASES REPORTED
Page
Atlantic Richfeld Co. v. Christian .
. . . . . . . . . . . . . . . . . . . . . . . 1
Attorney General v. American Assn. of Political Consultants, Inc. 977
Attorney General; Barton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Attorney General; Beers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Attorney General; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Attorney General; Nasrallah v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 573
Attorney General; Niz-Chavez v. . . . . . . . . . . . . . . . . . . . . . . . . . 978
Attorney General of Ark. v. Pharmaceutical Care Mgmt. Assn. 902
Attorney General of N. Y.; Smith v. . . . . . . . . . . . . . . . . . . . . . . . 956
Atyia; Whitten v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Aurelius Investment; Financial Oversight & Mgmt. Bd. for P. R. v. 448
Baca; Colorado Dept. of State v. . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Badruddoza v. Department of Homeland Security . . . . . . . . . . . . 991
Baker v. Macy's Fla. Stores, LLC . . . . . . . . . . . . . . . . . . . . . . . . . 903
Ball v. Marion, Ill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Bamdad, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Bandemer; Ford Motor Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Banister v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
Bank of New York Mellon; Ruttkamp v. . . . . . . . . . . . . . . . . . . . . 941
Banks v. Braun . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Barnes & Thornburg LLP; Collins v. . . . . . . . . . . . . . . . . . . . . . . 934
Barr v. American Assn. of Political Consultants, Inc. . . . . . . . . . . 977
Barr; Barton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Barr; Beers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Barr; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Barr; Nasrallah v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573
Barr; Niz-Chavez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
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
Booker v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Borden v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Bostock v. Clayton Cty., Ga. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 644
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
Brooks v. Schwartz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
T
ABLE OF CASES REPORTED
ix
Page
Brown, In re .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Brown v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Brown v. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Brown; Popal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Brown v. San Bernardino Cty., Cal. . . . . . . . . . . . . . . . . . . . . . . . 965
Brunson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
Calhoun Cty., Mich.; Adams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
California; Gutierrez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
California; Sanchez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
California; Texas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
California; Yablonsky v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Carlson v. Harpstead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Carter v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Chambers v. Hardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Chavez; Albence v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Chhim v. Houston, Tex. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
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
Clayton Cty., Ga.; Bostock v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 644
Click-To-Call Technologies, LP; Thryv, Inc. v. . . . . . . . . . . . . . . . 45
Cobble v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
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.
Cowpasture River Preservation Assn.; U. S. Forest Serv. v. . . . . . 604
Crawford, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 970
Crehan v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Davis, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Davis; Banister v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
Davis; Booker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Davis v. MTGLQ Investors, L. P. . . . . . . . . . . . . . . . . . . . . . . . . . 918
Davis; Murphy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
x T
ABLE OF CASES REPORTED
Page
Davis; Ramirez v. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Deville, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922,970
Director of penal or correctional institution. See name or title
Davis; Shove v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Davis; Stroner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
Davis v. Tegley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Denver Health and Hospital Auth.; Vazirabadi v. . . . . . . . . . . . . . 965
Denwalt-Hammond; Mehdipour v. . . . . . . . . . . . . . . . . . . . . . . . . . 990
Department of Homeland Security; Badruddoza v. . . . . . . . . . . . . 991
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
Dhillon; Neville v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
Diaz; Duran v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Dick v. Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
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
Emerson Elec. Co. v. SIPCO, LLC . . . . . . . . . . . . . . . . . . . . . . . . 990
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
Financial Oversight & Mgmt. Bd. for P. R. v. Aurelius Investment 448
Findlay, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Fleck v. Wetch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Florida; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Florida; McKinnon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Florida Dept. of Corrections; Clancy v. . . . . . . . . . . . . . . . . . . . . 956
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
Furlow v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 970
GE Energy Power Conversion v. Outokumpu Stainless USA . . . . 432
Georgia v. Public.Resource.Org, Inc. . . . . . . . . . . . . . . . . . . . . . . . 255
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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
Gutierrez v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Gutierrez v. Saenz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Gutierrez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Guzman Chavez; Albence v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Hampton, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Hanks v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Hardy; Chambers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Harpstead; Carlson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Harris v. Moyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Hawaii Wildlife Fund; Maui Cty. v. . . . . . . . . . . . . . . . . . . . . . . . . 165
Heard v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Hennepin Cty. Human Service & Public Health Dept.; Sanders v. 965
Henry Schein, Inc. v. Archer & White Sales, Inc. . . . . . . . . . . . . . 991
Hill v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
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
Houston, Tex.; Chhim v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Hunter v. Murdoch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Hye-Young v. Secolsky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Idaho Dept. of Correction v. Edmo . . . . . . . . . . . . . . . . . . . . . . . . 957
Illinois; Peters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Illinois; Roberson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 970
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
Jackson v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Jarvis v. Allison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
956
Jefferson v. Shinn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Johnson, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Johnson; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
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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. . . . . . . . . . . . . . . . . . 918,1016
Kee v. Raemisch. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Kelley; Lofton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Kelley; Martin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
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
King v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
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
Linear Controls, Inc.; Peterson v. . . . . . . . . . . . . . . . . . . . . . . . . . 977
Little Sisters of the Poor v. Pennsylvania . . . . . . . . . . . . . . . . . . 902
Lofton v. Kelley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Lomax v. Ortiz-Marquez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595
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
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Page
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
Marin Gutierrez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . 977
Marion, Ill.; Ball v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Marlowe v. LeBlanc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Martin v. Kelley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
Martinez, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Martinez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Matthews v. Braun . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Mattison, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Mattison v. Willis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
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
Mehdipour v. Denwalt-Hammond . . . . . . . . . . . . . . . . . . . . . . . . . 990
Mickens; Wimbush v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Montana Eighth Judicial Dist. Ct.; Ford Motor Co. v. . . . . . . . . . . 902
Montgomery Cty. Children and Youth Services; R. A. S. v. . . . . . 990
Moon, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Moore v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Morgan; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Moyer; Harris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
MTGLQ Investors, L. P.; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . 918
Murdoch; Hunter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Murphy v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Nagi v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Nasrallah v. Barr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573
NAACP; Trump v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
National Public Radio; Yeager v. . . . . . . . . . . . . . . . . . . . . . . . . . 934
Nebraska State Bd. of Pharmacy; Lasher v. . . . . . . . . . . . . . . . . . 922
Neff v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
Neus; Rigwan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Neville v. Dhillon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
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
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New York State Rife & Pistol Assn., Inc. v. New York City .
. . . 336
Nichols, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Niz-Chavez v. Barr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
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
Ortiz-Marquez; Lomax v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595
Outokumpu Stainless USA; GE Energy Power Conversion v. . . . 432
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
Peterson v. Linear Controls, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 977
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
R. A. S. v. Montgomery Cty. Children and Youth Services . . . . . . 990
Regents of the Univ. of Cal.; Department of Homeland Security v. 902
T
ABLE OF CASES REPORTED
xv
Page
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. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 970
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
Russell, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Rutledge v. Pharmaceutical Care Mgmt. Assn. . . . . . . . . . . . . . . . 902
Ruttkamp v. Bank of New York Mellon . . . . . . . . . . . . . . . . . . . . 941
S. v. Montgomery Cty. Children and Youth Services . . . . . . . . . . 990
Saenz; Gutierrez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
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
Schein, Inc. v. Archer & White Sales, Inc. . . . . . . . . . . . . . . . . . . 991
Schwaller; Tooly v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Schwartz; Brooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Scott; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Secolsky; Hye-Young v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
SEC; Armstrong v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Setty; Shrinivas Sugandhalaya LLP v. . . . . . . . . . . . . . . . . . . . . . 971
Shampine v. Sarver's Realty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Sheppard v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Shinn; Jefferson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Shove v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Shrinivas Sugandhalaya LLP v. Setty . . . . . . . . . . . . . . . . . . . . . 971
Shuman v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Sineneng-Smith; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . 371
SIPCO, LLC; Emerson Elec. Co. v. . . . . . . . . . . . . . . . . . . . . . . . 990
Smith, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Smith v. Jackson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Smith v. St. Joseph's/Candler Health System, Inc. . . . . . . . . . . . . 918
xvi T
ABLE OF CASES REPORTED
Page
Smith v. Scott.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Superintendent of penal or correctional institution. See name or
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
Stroner v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
Sudan; Opati v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
title of superintendent.
Superior Communications, Inc. v. Voltstar Technologies, Inc. . . . . 919
Superior Waterproofng, Inc.; Karnofel v. . . . . . . . . . . . . . . . . . 918,1016
United States. See name of other party.
Taco Bell; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Tanamor-Steffan, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
TCT Mobile International Ltd., In re . . . . . . . . . . . . . . . . . . . . . . 928
Tegley; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Texas; Andrus v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806
Texas v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Thole v. U. S. Bank N. A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538
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. NAACP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Trump v. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Uber Technologies, Inc.; Arunachalam v. . . . . . . . . . . . . . . . . . . . 957
Underwood; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
U. S. Bank N. A.; Thole v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538
U. S. Forest Serv. v. Cowpasture River Preservation Assn. . . . . . 604
U. S. Postal Serv.; 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
Van Buren v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Vannoy; Edwards v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
T
ABLE OF CASES REPORTED
xvii
Page
Vazirabadi v. Denver Health and Hospital Auth. .
. . . . . . . . . . . . . 965
Williams, In re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922,942
Victor v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Vidal; Wolf v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Vittetoe; Hill-Lomax v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Vogel v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942,978
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
Willis; Mattison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016
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
C
ASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2019
432 OCTOBER
TERM, 2019
Syllabus
GE ENERGY POWER CONVERSION FRANCE SAS,
CORP
., fka CONVERTEAM SAS v. OUTOKUMPU
STAINLESS USA, LLC, et al.
certiorari to the united states court of appeals for
the eleventh circuit
No. 18–1048. Argued January 21, 2020—Decided June 1, 2020
ThyssenKrupp Stainless USA, LLC, entered into three contracts with
F. L. Industries, Inc., for the construction of cold rolling mills at Thys-
senKrupp's steel manufacturing plant in Alabama. Each contract con-
tained a clause requiring arbitration of any contract dispute. F. L. In-
dustries then entered into a subcontractor agreement with petitioner
(GE Energy) for the provision of nine motors to power the cold rolling
mills. After the motors for the cold rolling mills allegedly failed, Outo-
kumpu Stainless USA, LLC (which acquired ownership of the plant),
and its insurers sued GE Energy in Alabama state court. GE Energy
removed the case to federal court under 9 U. S. C. § 205. It then moved
to dismiss and compel arbitration, relying on the arbitration clauses in
the F. L. Industries and ThyssenKrupp contracts. The District Court
granted the motion, concluding that both Outokumpu and GE Energy
were parties to the agreement. The Eleventh Circuit reversed. It
concluded that the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (New York Convention or Convention) allows
enforcement of an arbitration agreement only by the parties that actu-
ally signed the agreement and that GE Energy was a nonsignatory. It
also held that allowing GE Energy to rely on state-law equitable estop-
pel doctrines to enforce the arbitration agreement would confict with
the Convention's signatory requirement.
Held: The New York Convention does not confict with domestic equitable
estoppel doctrines that permit the enforcement of arbitration agree-
ments by nonsignatories. Pp. 437–445.
(a) Chapter 1 of the Federal Arbitration Act (FAA) does not “alter
background principles of state contract law regarding the scope of
agreements (including the question of who is bound by them).” Arthur
Andersen LLP v. Carlisle, 556 U. S. 624, 630. The “ `traditional princi-
ples' of state law” that apply under Chapter 1 include doctrines, like
equitable estoppel, authorizing contract enforcement by a nonsignatory.
Id., at 631–632.
The New York Convention is a multilateral treaty addressing interna-
tional arbitration. One article of the Convention addresses arbitration
Cite
as: 590 U. S. 432 (2020)
433
Syllabus
agreements—Article II—and one provision of Article II addresses the
enforcement
of those agreements—Article II(3). Article II(3) provides
that courts of a contracting state “shall . . . refer the parties to arbitra-
tion” when the parties to an action entered into a written agreement to
arbitrate and one of the parties requests such a referral.
Chapter 2 of the FAA grants federal courts jurisdiction over actions
governed by the Convention. As relevant here, Chapter 2 provides
that “Chapter 1 applies to actions and proceedings brought under this
chapter to the extent that [Chapter 1] is not in confict with this chapter
or the Convention.” 9 U. S. C. § 208. Pp. 437–439.
(b) The application of familiar tools of treaty interpretation estab-
lishes that the state-law equitable estoppel doctrines permitted under
Chapter 1 do not “confict with . . . the Convention.” § 208. Pp. 439–444.
(1) The text of the New York Convention does not address whether
nonsignatories may enforce arbitration agreements under domestic doc-
trines such as equitable estoppel. The Convention is simply silent on
the issue of nonsignatory enforcement. This silence is dispositive be-
cause nothing in the Convention's text could be read to confict with the
application of domestic equitable estoppel doctrines. Article II(3)—the
only provision in the Convention addressing the enforcement of arbitra-
tion agreements—contains no exclusionary language; it does not state
that arbitration agreements shall be enforced only in the identifed
circumstances. Given that the Convention was drafted against the
backdrop of domestic law, it would be unnatural to read Article II(3)
to displace domestic doctrines in the absence of such language. This
interpretation is especially appropriate because Article II contemplates
using domestic doctrines to fll gaps in the Convention. Pp. 439–441.
(2) This interpretation is confrmed by the Convention's negotiation
and drafting history as well as “ `the postratifcation understanding ' of
signatory nations,” Medellín v. Texas, 552 U. S. 491, 507.
Cherry-picked generalizations from the negotiating and drafting his-
tory cannot be used to create a rule that fnds no support in the treaty's
text. Here, to the extent that the Convention's drafting history sheds
any light on the treaty's meaning, it shows only that the drafters sought
to impose baseline requirements on contracting states so that signato-
ries would “not be permitted to decline enforcement of such agreements
on the basis of parochial views of their desirability or in a manner
that would diminish the mutually binding nature of the agreements.”
Scherk v. Alberto-Culver Co., 417 U. S. 506, 520, n. 15.
The postratifcation understanding of other contracting states—as ev-
idenced by the “[d]ecisions of the courts of other Convention signator-
ies,” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 175,
and the “postratifcation conduct” of contracting state governments,
434 GE
ENERGY POWER CONVERSION FRANCE SAS
v. OUTOKUMPU STAINLESS USA, LLC
Syllabus
Zicherman v. Korean Air Lines Co., 516 U. S. 217, 227—may also serve
as
an aid to this Court's interpretation. Here, numerous sources indi-
cate that the New York Convention does not prohibit the application
of domestic law addressing the enforcement of arbitration agreements.
These sources, however, are from decades after the fnalization of the
New York Convention's text in 1958. This diminishes their value as
evidence of the original understanding of the treaty's meaning.
Finally, because the Court's textual analysis and the Executive's in-
terpretation of the Convention align here, there is no need to determine
whether the Executive's understanding is entitled to “weight” or “defer-
ence.” Cf. Edelman v. Lynchburg College, 535 U. S. 106, 114–115, n. 8.
Pp. 441–444.
(c) The Court of Appeals may address on remand whether GE Energy
can enforce the arbitration clauses under equitable estoppel principles
and which body of law governs that determination. P. 445
902 F. 3d 1316, reversed and remanded.
Thomas, J., delivered the opinion for a unanimous Court. Sotomayor,
J., fled a concurring opinion, post, p. 445.
Shay Dvoretzky argued the cause for petitioner. With
him on the briefs were Caroline Edsall Littleton, Amanda
K. Rice, Sara Anne Ford, Wesley B. Gilchrist, Amie A.
Vague, and Jeffrey R. Johnson.
Jonathan Y. Ellis argued the cause for the United States
as amicus curiae urging reversal. On the brief were Solici-
tor General Francisco, Assistant Attorney General Hunt,
Deputy Solicitor General Kneedler, Elizabeth B. Prelogar,
and Sharon Swingle.
Jonathan D. Hacker argued the cause for respondents.
With him on the brief were Samantha M. Goldstein, Anton
Metlitsky, Cheri Turnage Gatlin, Melinda S. Kollross, Jo-
seph J. Ferrini, James R. Swinehart, E. Travis Ramey,
Devin C. Dolive, W. Gregory Aimonette, Kenneth R. Wy-
socki, and Kelly A. Jorgensen.*
*Briefs of amici curiae urging reversal were fled for the Chamber of
Commerce of the United States of America by Peter B. Rutledge; for the
Miami International Arbitration Society by Carlos F. Concepción, Gio-
vanni Angles, and Edward M. Mullins; for the National Association of
Cite
as: 590 U. S. 432 (2020)
435
Opinion of the Court
Justice Thomas delivered the opinion of the Court.
The
question in this case is whether the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards,
June 10, 1958, 21 U. S. T. 2517, T. I. A. S. No. 6997, conficts
with domestic equitable estoppel doctrines that permit the
enforcement of arbitration agreements by nonsignatories.
We hold that it does not.
I
In 2007, ThyssenKrupp Stainless USA, LLC, entered into
three contracts with F. L. Industries, Inc., for the construc-
tion of cold rolling mills at ThyssenKrupp's steel manufactur-
ing plant in Alabama. Each of the contracts contained an
identical arbitration clause. The clause provided that “[a]ll
disputes arising between both parties in connection with or
in the performances of the Contract . . . shall be submitted
to arbitration for settlement.” App. 171.
After executing these agreements, F. L. Industries, Inc.,
entered into a subcontractor agreement with petitioner GE
Energy Power Conversion France SAS, Corp. (GE Energy),
then known as Converteam SAS. Under that agreement,
GE Energy agreed to design, manufacture, and supply
motors for the cold rolling mills. Between 2011 and 2012,
GE Energy delivered nine motors to the Alabama plant
for installation. Soon thereafter, respondent Outokumpu
Stainless USA, LLC, acquired ownership of the plant from
ThyssenKrupp.
According to Outokumpu, GE Energy's motors failed by
the summer of 2015, resulting in substantial damages. In
Manufacturers by J. Michael Connolly, Thomas R. McCarthy, Peter C.
Tolsdorf, and Leland P. Frost; for the North America Branch of the Char-
tered Institute of Arbitrators by Glenn P. Hendrix and Rebecca Lunceford
Kolb; and for George A. Bermann et al. by Douglass Cassel.
Briefs of amici curiae urging affrmance were fled for Public Citizen
by Scott L. Nelson, Allison M. Zieve, and Kaitlin E. Leary; and for Benja-
min G. Davis et al. by Mr. Davis, pro se, and Raffi Melkonian.
Karla Gilbride fled a brief of amicus curiae for Public Justice.
436 GE
ENERGY POWER CONVERSION FRANCE SAS
v. OUTOKUMPU STAINLESS USA, LLC
Opinion of the Court
2016, Outokumpu and its insurers fled suit against GE En-
erg
y in Alabama state court. GE Energy removed the case
to federal court under 9 U. S. C. § 205, which authorizes the
removal of an action from state to federal court if the action
“relates to an arbitration agreement . . . falling under the
Convention [on the Recognition and Enforcement of Foreign
Arbitral Awards].” GE Energy then moved to dismiss and
compel arbitration, relying on the arbitration clauses in the
contracts between F. L. Industries, Inc., and ThyssenKrupp.
The District Court granted GE Energy's motion to dismiss
and compel arbitration with Outokumpu and Sompo Japan
Insurance Company of America. Outokumpu Stainless
USA LLC v. Converteam SAS, 2017 WL 401951 (SD Ala.,
Jan. 30, 2017).
1
The court held that GE Energy qualifed as
a party under the arbitration clauses because the contracts
defned the terms “Seller” and “Parties” to include sub-
contractors. Id., at *4. Because the court concluded that
both Outokumpu and GE Energy were parties to the agree-
ments, it declined to address GE Energy's argument that the
agreement was enforceable under equitable estoppel. Id.,
at *1, n. 1.
The Eleventh Circuit reversed the District Court's order
compelling arbitration. Outokumpu Stainless USA, LLC v.
Converteam SAS, 902 F. 3d 1316 (2018). The court inter-
preted the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (New York Convention or Con-
vention) to include a “requirement that the parties actually
sign an agreement to arbitrate their disputes in order to
compel arbitration.” Id., at 1326 (emphasis in original).
The court concluded that this requirement was not satisfed
because “GE Energy is undeniably not a signatory to the
Contracts.” Ibid. It then held that GE Energy could not
rely on state-law equitable estoppel doctrines to enforce the
1
The District Court later granted GE Energy's motion to compel arbi-
tration with additional insurers. Outokumpu Stainless USA LLC v. Con-
verteam SAS, 2017 WL 480716 (SD Ala., Feb. 3, 2017).
Cite
as: 590 U. S. 432 (2020)
437
Opinion of the Court
arbitration agreement as a nonsignatory because, in the
cour
t's view, equitable estoppel conficts with the Conven-
tion's signatory requirement. Id., at 1326–1327.
Given a confict between the Courts of Appeals on this
question,
2
we granted certiorari. 588 U. S. 918 (2019).
II
A
Chapter 1 of the Federal Arbitration Act (FAA) permits
courts to apply state-law doctrines related to the enforce-
ment of arbitration agreements. Section 2 of that chapter
provides that an arbitration agreement in writing “shall be
. . . enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.” 9 U. S. C. § 2.
As we have explained, this provision requires federal courts
to “place [arbitration] agreements ` “upon the same footing
as other contracts.” ' ” Volt Information Sciences, Inc. v.
Board of Trustees of Leland Stanford Junior Univ., 489
U. S. 468, 474 (1989) (quoting Scherk v. Alberto-Culver Co.,
417 U. S. 506, 511 (1974)). But it does not “alter background
principles of state contract law regarding the scope of agree-
ments (including the question of who is bound by them).”
Arthur Andersen LLP v. Carlisle, 556 U. S. 624, 630 (2009).
The “traditional principles of state law” that apply under
Chapter 1 include doctrines that authorize the enforcement
of a contract by a nonsignatory. Id., at 631 (internal quota-
tion marks omitted). For example, we have recognized that
arbitration agreements may be enforced by nonsignatories
through “ `assumption, piercing the corporate veil, alter ego,
incorporation by reference, third-party benefciary theories,
waiver and estoppel.' ” Ibid. (quoting 21 R. Lord, Williston
on Contracts § 57:19, p. 183 (4th ed. 2001)).
2
Compare 902 F. 3d 1316, 1326 (CA11 2018), and Yang v. Majestic Blue
Fisheries, LLC, 876 F. 3d 996, 1001–1002 (CA9 2017), with Aggarao v.
MOL Ship Mgmt. Co., 675 F. 3d 355, 375 (CA4 2012), and Sourcing Unlim-
ited, Inc. v. Asimco Int'l, Inc., 526 F. 3d 38, 48 (CA1 2008).
438 GE
ENERGY POWER CONVERSION FRANCE SAS
v. OUTOKUMPU STAINLESS USA, LLC
Opinion of the Court
This case implicates domestic equitable estoppel doctrines.
Genera
lly, in the arbitration context, “equitable estoppel
allows a nonsignatory to a written agreement containing an
arbitration clause to compel arbitration where a signatory to
the written agreement must rely on the terms of that agree-
ment in asserting its claims against the nonsignatory.” Id.,
at 200 (2017). In Arthur Andersen, we recognized that
Chapter 1 of the FAA permits a nonsignatory to rely on
state-law equitable estoppel doctrines to enforce an arbitra-
tion agreement. 556 U. S., at 631–632.
B
The New York Convention is a multilateral treaty that ad-
dresses international arbitration. 21 U. S. T. 2517, T. I. A. S.
No. 6997. It focuses almost entirely on arbitral awards.
Article I(1) describes the Convention as applying only to
“the recognition and enforcement of arbitral awards.” Id.,
at 2519. Articles III, IV, and V contain recognition and en-
forcement obligations related to arbitral awards for contract-
ing states and for parties seeking the enforcement of arbitral
awards. Id., at 2519–2520. Article VI addresses when an
award can be set aside or suspended. Id., at 2520. And
Article VII(1) states that the “Convention shall not . . . de-
prive any interested party of any right he may have to avail
himself of an arbitral award in the manner and to the extent
allowed by the law or the treaties of the country where such
award is sought to be relied upon.” Id., at 2520–2521.
Only one article of the Convention addresses arbitration
agreements—Article II. That article contains only three
provisions, each one sentence long. Article II(1) requires
“[e]ach Contracting State [to] recognize an agreement in
writing under which the parties undertake to submit to arbi-
tration all or any differences which have arisen or which may
arise between them in respect of a defned legal relationship,
whether contractual or not, concerning a subject matter ca-
pable of settlement by arbitration.” Id., at 2519. Article
Cite
as: 590 U. S. 432 (2020)
439
Opinion of the Court
II(2) provides that “[t]he term `agreement in writing ' shall
i
nclude an arbitral clause in a contract or an arbitration
agreement, signed by the parties or contained in an ex-
change of letters or telegrams.” Ibid. Finally, Article
II(3) states that “[t]he court of a Contracting State, when
seized of an action in a matter in respect of which the parties
have made an agreement within the meaning of this article,
shall, at the request of one of the parties, refer the parties
to arbitration, unless it fnds that the said agreement is null
and void, inoperative or incapable of being performed.”
Ibid.
C
In 1970, the United States acceded to the New York Con-
vention, and Congress enacted implementing legislation in
Chapter 2 of the FAA. See 84 Stat. 692, 9 U. S. C. §§ 201–
208. Chapter 2 grants federal courts jurisdiction over ac-
tions governed by the Convention, § 203; establishes venue
for such actions, § 204; authorizes removal from state court,
§ 205; and empowers courts to compel arbitration, § 206.
Chapter 2 also states that “Chapter 1 applies to actions and
proceedings brought under this chapter to the extent that
[Chapter 1] is not in confict with this chapter or the Conven-
tion.” § 208.
III
We must determine whether the equitable estoppel doc-
trines permitted under Chapter 1 of the FAA, see supra, at
437–438, “confict with . . . the Convention.” § 208. Apply-
ing familiar tools of treaty interpretation, we conclude that
they do not confict.
A
“The interpretation of a treaty, like the interpretation of
a statute, begins with its text.” Medellín v. Texas, 552 U. S.
491, 506 (2008). The text of the New York Convention does
not address whether nonsignatories may enforce arbitration
agreements under domestic doctrines such as equitable es-
440 GE
ENERGY POWER CONVERSION FRANCE SAS
v. OUTOKUMPU STAINLESS USA, LLC
Opinion of the Court
toppel. The Convention is simply silent on the issue of non-
sig
natory enforcement, and in general, “a matter not covered
is to be treated as not covered”—a principle “so obvious that
it seems absurd to recite it,” A. Scalia & B. Garner, Reading
Law: The Interpretation of Legal Texts 93 (2012).
This silence is dispositive here because nothing in the text
of the Convention could be read to otherwise prohibit
the application of domestic equitable estoppel doctrines.
Only one article of the Convention addresses arbitration
agreements—Article II—and only one provision of Article II
addresses the enforcement of those agreements—Article
II(3). The text of Article II(3) states that courts of a con-
tracting state “shall . . . refer the parties to arbitration”
when the parties to an action entered into a written agree-
ment to arbitrate and one of the parties requests referral to
arbitration. The provision, however, does not restrict con-
tracting states from applying domestic law to refer parties
to arbitration in other circumstances. That is, Article II(3)
provides that arbitration agreements must be enforced in
certain circumstances, but it does not prevent the application
of domestic laws that are more generous in enforcing arbitra-
tion agreements. Article II(3) contains no exclusionary lan-
guage; it does not state that arbitration agreements shall be
enforced only in the identifed circumstances. Given that
the Convention was drafted against the backdrop of domestic
law, it would be unnatural to read Article II(3) to displace
domestic doctrines in the absence of exclusionary language.
Cf. Marx v. General Revenue Corp., 568 U. S. 371, 380–384
(2013).
This interpretation is especially appropriate in the context
of Article II. Far from displacing domestic law, the provi-
sions of Article II contemplate the use of domestic doctrines
to fll gaps in the Convention. For example, Article II(1)
refers to disputes “capable of settlement by arbitration,” but
it does not identify what disputes are arbitrable, leaving that
matter to domestic law. Mitsubishi Motors Corp. v. Soler
Cite
as: 590 U. S. 432 (2020)
441
Opinion of the Court
Chrysler-Plymouth, Inc., 473 U. S. 614, 639, n. 21 (1985).
Si
milarly, Article II(3) states that it does not apply to agree-
ments that are “null and void, inoperative or incapable of
being performed,” but it fails to defne those terms. Again,
the Convention requires courts to rely on domestic law to fll
the gaps; it does not set out a comprehensive regime that
displaces domestic law.
In sum, the only provision of the Convention that ad-
dresses the enforcement of arbitration agreements is Article
II(3). We do not read the nonexclusive language of that pro-
vision to set a ceiling that tacitly precludes the use of domes-
tic law to enforce arbitration agreements. Thus, nothing in
the text of the Convention “confict[s] with” the application
of domestic equitable estoppel doctrines permitted under
Chapter 1 of the FAA. 9 U. S. C. § 208.
B
“Because a treaty ratifed by the United States is `an
agreement among sovereign powers,' we have also consid-
ered as `aids to its interpretation' the negotiation and draft-
ing history of the treaty as well as `the postratifcation un-
derstanding ' of signatory nations.” Medellín, 552 U. S., at
507 (quoting Zicherman v. Korean Air Lines Co., 516 U. S.
217, 226 (1996)). These aids confrm our interpretation of
the Convention's text.
1
Our precedents have looked to the “negotiating and draft-
ing history” of a treaty as an aid in determining the shared
understanding of the treaty. Id., at 226. Invoking this in-
terpretive aid, Outokumpu argues that the Convention's
drafting history establishes a “rule of consent” that “dis-
place[s] varying local laws.” Brief for Respondents 27. We
are unpersuaded. For one, nothing in the text of the Con-
vention imposes a “rule of consent” that displaces domestic
law—let alone a rule that allows some domestic-law doc-
trines and not others, as Outokumpu proposes. The only
442 GE
ENERGY POWER CONVERSION FRANCE SAS
v. OUTOKUMPU STAINLESS USA, LLC
Opinion of the Court
time the Convention uses the word “consent” is in Article
X(3),
which addresses ratifcation and accession procedures.
Moreover, the statements relied on by Outokumpu do not
address the specifc question whether the Convention prohib-
its the application of domestic law that would allow nonsig-
natories to compel arbitration. Cherry-picked “generaliza-
tion[s]” from the negotiating and drafting history cannot be
used to create a rule that fnds no support in the treaty's
text. Zicherman, 516 U. S., at 227.
To the extent the drafting history sheds any light on the
meaning of the Convention, it shows only that the drafters
sought to impose baseline requirements on contracting
states. As this Court has recognized, “[i]n their discussion
of [Article II], the delegates to the Convention voiced fre-
quent concern that courts of signatory countries . . . should
not be permitted to decline enforcement of such agreements
on the basis of parochial views of their desirability or in
a manner that would diminish the mutually binding nature
of the agreements.” Scherk, 417 U. S., at 520, n. 15 (citing
G. Haight, Convention on the Recognition and Enforcement
of Foreign Arbitral Awards: Summary Analysis of Record
of United Nations Conference, May/June 1958, pp. 24–28
(1958)). Nothing in the drafting history suggests that the
Convention sought to prevent contracting states from apply-
ing domestic law that permits nonsignatories to enforce arbi-
tration agreements in additional circumstances.
2
“[T]he postratifcation understanding ” of other contracting
states may also serve as an aid to our interpretation of
a treaty's meaning. Medellín, 552 U. S., at 507 (internal
quotation marks omitted). To discern this understanding,
we have looked to the “[d]ecisions of the courts of other Con-
vention signatories,” El Al Israel Airlines, Ltd. v. Tsui
Yuan Tseng, 525 U. S. 155, 175 (1999), as well as the “postrat-
Cite
as: 590 U. S. 432 (2020)
443
Opinion of the Court
ifcation conduct” of the governments of contracting states,
Zi
cherman, 516 U. S., at 227.
Here, the weight of authority from contracting states indi-
cates that the New York Convention does not prohibit the
application of domestic law addressing the enforcement of
arbitration agreements. The courts of numerous contract-
ing states permit enforcement of arbitration agreements by
entities who did not sign an agreement. See 1 G. Born, In-
ternational Commercial Arbitration § 10.02, pp. 1418–1484
(2d ed. 2014) (compiling cases). The United States identifes
at least one contracting state with domestic legislation il-
lustrating a similar understanding. See Brief for United
States as Amicus Curiae 28 (discussing Peru's national legis-
lation). And GE Energy points to a recommendation issued
by the United Nations Commission on International Trade
Law that, although not directly addressing Article II(3),
adopts a nonexclusive interpretation of Article II(1) and (2).
Report of the United Nations Commission on International
Trade Law on the Work of Its Thirty-Ninth Session, Recom-
mendation Regarding the Interpretation of Article II, Para-
graph 2, and Article VII, Paragraph 1, of the Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards ¶¶1, 2, U. N. Doc. A /61/17, annex II (July 7, 2006)
(UN recommendation).
These sources, while generally pointing in one direction,
are not without their faults. The court decisions, domestic
legislation, and UN recommendation relied on by the parties
occurred decades after the fnalization of the New York Con-
vention's text in 1958. This diminishes the value of these
sources as evidence of the original shared understanding of
the treaty's meaning. Moreover, unlike the actions and deci-
sions of signatory nations, we have not previously relied on
UN recommendations to discern the meaning of treaties.
See also Yang v. Majestic Blue Fisheries, LLC, 876 F. 3d
996, 1000–1001 (CA9 2017) (declining to give weight to the
444 GE
ENERGY POWER CONVERSION FRANCE SAS
v. OUTOKUMPU STAINLESS USA, LLC
Opinion of the Court
2006 UN recommendation). But to the extent this evidence
is
given any weight, it confrms our interpretation of the
Convention's text.
3
Finally, the parties dispute whether the Executive's inter-
pretation of the New York Convention should affect our
analysis. The United States claims that we should apply
a “ `canon of deference' ” and give “ ` “great weight” ' ” to
an interpretation set forth by the Executive in an amicus
brief submitted to the D. C. Circuit in 2014. Brief for
United States as Amicus Curiae 30 (quoting Abbott v. Ab-
bott, 560 U. S. 1, 15 (2010)); see also Brief for United States
as Amicus Curiae in No. 13–7004 (CADC), pp. 7, 9. GE
Energy echoes this request. Outokumpu, on the other hand,
argues that the Executive's noncontemporaneous interpreta-
tion sheds no light on the meaning of the treaty, asserting
that the Executive expressed the “opposite . . . view at the
time of the Convention's adoption.” Brief for Respondents
33. Outokumpu asserts that this Court has repeatedly re-
jected executive interpretations that contradict the treaty's
text or the political branches' previous understanding of a
treaty. Id., at 34–35 (citing, e. g., Chan v. Korean Air Lines,
Ltd., 490 U. S. 122, 136 (1989) (Brennan, J., concurring
in judgment); Perkins v. Elg, 307 U. S. 325, 328, 337–349
(1939)).
We have never provided a full explanation of the basis for
our practice of giving weight to the Executive's interpreta-
tion of a treaty. Nor have we delineated the limitations of
this practice, if any. But we need not resolve these issues
today. Our textual analysis aligns with the Executive's in-
terpretation so there is no need to determine whether the
Executive's understanding is entitled to “weight” or “defer-
ence.” Cf. Edelman v. Lynchburg College, 535 U. S. 106,
114–115, n. 8 (2002) (“[T]here is no need to resolve deference
issues when there is no need for deference”).
Cite
as: 590 U. S. 432 (2020)
445
Sotomayor, J., concurring
IV
The
Court of Appeals did not analyze whether Article II(3)
of the New York Convention conficts with equitable estop-
pel. Instead, the court held that Article II(1) and (2) include
a “requirement that the parties actually sign an agreement
to arbitrate their disputes in order to compel arbitration.”
902 F. 3d, at 1326. But those provisions address the recog-
nition of arbitration agreements, not who is bound by a rec-
ognized agreement. Article II(1) simply requires contract-
ing states to “recognize an agreement in writing,” and
Ar ticle II(2) defines the ter m “agreement i n wr iti ng. ”
Here, the three agreements at issue were both written and
signed.
3
Only Article II(3) speaks to who may request re-
ferral under those agreements, and it does not prohibit the
application of domestic law. See supra, at 440–441.
Because the Court of Appeals concluded that the Conven-
tion prohibits enforcement by nonsignatories, the court did
not determine whether GE Energy could enforce the arbitra-
tion clauses under principles of equitable estoppel or which
body of law governs that determination. Those questions
can be addressed on remand. We hold only that the New
York Convention does not confict with the enforcement of
arbitration agreements by nonsignatories under domestic-
law equitable estoppel doctrines.
***
For the foregoing reasons, we reverse the judgment of the
Court of Appeals and remand the case for further proceed-
ings consistent with this opinion.
It is so ordered.
Justice Sotomayor, concurring.
I agree with the Court that the Convention on the Recog-
nition and Enforcement of Foreign Arbitral Awards, June 10,
3
We do not address whether Article II(2) requires a signed agreement.
446 GE
ENERGY POWER CONVERSION FRANCE SAS
v. OUTOKUMPU STAINLESS USA, LLC
Sotomayor, J., concurring
1958, 21 U. S. T. 2517, T. I. A. S. No. 6997 (Convention), does
not
categorically prohibit the application of domestic doc-
trines, such as equitable estoppel, that may permit non-
signatories to enforce arbitration agreements. I note, how-
ever, that the application of such domestic doctrines is
subject to an important limitation: Any applicable domestic
doctrines must be rooted in the principle of consent to
arbitrate.
This limitation is part and parcel of the Federal Arbitra-
tion Act (FAA) itself. It is a “basic precept,” Stolt-Nielsen
S. A. v. AnimalFeeds Int'l Corp., 559 U. S. 662, 681 (2010),
that “[a]rbitration under the [FAA] is a matter of consent,
not coercion,” Volt Information Sciences, Inc. v. Board of
Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 479
(1989); see also, e. g., Lamps Plus, Inc. v. Varela, 587 U. S.
176, 184 (2019) (“Consent is essential under the FAA”); Gran-
ite Rock Co. v. Teamsters, 561 U. S. 287, 299 (2010) (“[T]he
frst principle that underscores all of our arbitration deci-
sions” is that “[a]rbitration is strictly `a matter of consent' ”).
“We have emphasized th[is] `foundational FAA principle'
many times,” Lamps Plus, 587 U. S., at 184 (quoting Stolt-
Nielsen, 559 U. S., at 684) (citing cases), and even the parties
fnd common ground on the point, see Tr. of Oral Arg. 7, 49;
Brief for Respondents 2.
Because this consent principle governs the FAA on the
whole, it constrains any domestic doctrines under Chapter 1
of the FAA that might “appl[y]” to Convention proceedings
(to the extent they do not “confict with” the Convention).
9 U. S. C. § 208; cf. ante, at 439. Parties seeking to enforce
arbitration agreements under Article II of the Convention
thus may not rely on domestic nonsignatory doctrines that
fail to refect consent to arbitrate.
While the FAA's consent principle itself is crystalline, it is
admittedly diffcult to articulate a bright-line test for deter-
mining whether a particular domestic nonsignatory doctrine
refects consent to arbitrate. That is in no small part be-
Cite
as: 590 U. S. 432 (2020)
447
Sotomayor, J., concurring
cause some domestic nonsignatory doctrines vary from juris-
dic
tion to jurisdiction. With equitable estoppel, for in-
stance, one formulation of the doctrine may account for a
party's consent to arbitrate while another does not. Cf.
Brief for Respondents 45 (maintaining that courts have ap-
plied at least “three different versions” of GE Energy's
equitable-estoppel theory, includi ng one that a llegedly
“allows a non-party to force arbitration even of claims wholly
unconnected to the agreement”). Lower courts must there-
fore determine, on a case-by-case basis, whether applying
a domestic nonsignatory doctrine would violate the FAA's
inherent consent restriction.*
Article II of the Convention leaves much to the contract-
ing states to resolve on their own, and the FAA imposes few
restrictions. Nevertheless, courts applying domestic non-
signatory doctrines to enforce arbitration agreements under
the Convention must strictly adhere to “the foundational
FAA principle that arbitration is a matter of consent.”
Stolt-Nielsen, 559 U. S., at 684. Because the Court's opinion
is consistent with this limitation, I join it in full.
*In this case, however, I am skeptical that any domestic nonsignatory
doctrines need come into play at all, because Outokumpu appears to have
expressly agreed to arbitrate disputes under the relevant contract with
subcontractors like GE Energy. The contract provided that disputes aris-
ing between the buyer and seller in connection with the contract were
subject to arbitration. App. 171. It also specifed that the seller in the
contract “shall be understood” to include “[s]ub-contractors.” Id., at 88–
89. And it appended a list of potential subcontractors, one of which was
GE Energy's predecessor, Converteam. Id., at 184–185.
448 OCTOBER
TERM, 2019
Syllabus
FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD
FOR PUERTO RICO v. AURELIUS
INVESTMENT, LLC, et al.
certiorari to the united states court of appeals for
the rst circuit
No. 18–1334. Argued October 15, 2019—Decided June 1, 2020*
In 2016, in response to a fscal crisis in Puerto Rico, Congress invoked its
Article IV power to “make all needful Rules and Regulations respecting
the Territory . . . belonging to the United States,” § 3, cl. 2, to enact
the Puerto Rico Oversight, Management, and Economic Stability Act
(PROMESA). PROMESA created a Financial Oversight and Manage-
ment Board, whose seven voting members are to be appointed by the
President without the Senate's advice and consent. Congress author-
ized the Board to fle for bankruptcy on behalf of Puerto Rico or its
instr umentalities, to supervise and modify Puerto Rico's laws and
budget, and to gather evidence and conduct investigations in support of
these efforts.
After President Obama selected the Board's members, the Board fled
bankruptcy petitions on behalf of the Commonwealth and fve of its enti-
ties. Both court and Board had decided a number of matters when
several creditors moved to dismiss the proceedings on the ground that
the Board members' selection violated the Constitution's Appointments
Clause, which says that the President “shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint . . . all . . . Offcers
of the United States . . . .” Art. II, § 2, cl. 2. The court denied the
motions, but the First Circuit reversed. It held that the Board mem-
bers' selection violated the Appointments Clause but also concluded that
any Board actions taken prior to its decision were valid under the “de
facto offcer” doctrine.
*Together with No. 18–1475, Aurelius Investment, LLC, et al. v. Com-
monwealth of Puerto Rico et al., No. 18–1496, Offcial Committee of Unse-
cured Creditors of All Title III Debtors Other Than COFINA v. Aurelius
Investment, LLC, et al., No. 18–1514, United States v. Aurelius Invest-
ment, LLC, et al., and No. 18–1521, Unión de Trabajadores de la Industria
Ele
́
ctrica y Riego, Inc. v. Financial Oversight and Management Board
for Puerto Rico et al., also on certiorari to the same court.
Cite
as: 590 U. S. 448 (2020)
449
Syllabus
Held:
1.
The Appointments Clause constrains the appointments power as to
all offcers of the United States, even those who exercise power in or in
relation to Puerto Rico. The Constitution's structure provides strong
reason to believe that this is so. The Appointments Clause refects an
allocation of responsibility, between President and Senate, in cases in-
volving appointment to high federal offce. Concerned about possible
manipulation of appointments, the Founders both concentrated the ap-
pointment power and distributed it, ensuring that primary responsibil-
ity for important nominations would fall on the President while also
ensuring that the Senate's advice and consent power would provide a
check on that power. Other, similar structural constraints in the Con-
stitution apply to all exercises of federal power, including those related
to Article IV entities. Cf., e. g., Metropolitan Washington Airports
Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S.
252, 270–271 (MWAA). The objectives advanced by the Appointments
Clause counsel strongly in favor of applying that Clause to all offcers
of the United States, even those with powers and duties related to
Puerto Rico. Indeed, the Clause's text frmly indicates that it applies
to the appointment of all “Offcers of the United States.” And history
confrms this reading. Congress' longstanding practice of requiring the
Senate's advice and consent for territorial Governors with important
federal duties supports the inference that Congress expected the Ap-
pointments Clause to apply to at least some offcials with supervisory
authority over the Territories. Pp. 456–459.
2. The Appointments Clause does not restrict the appointment or se-
lection of the Board members. Pp. 459–471.
(a) The Appointments Clause does not restrict the appointment of
local offcers that Congress vests with primarily local duties. The
Clause's language suggests a distinction between federal offcers—who
exercise power of the National Government—and nonfederal offcers—
who exercise power of some other government. Pursuant to Article I,
§ 8, cl. 17, and Article IV, § 3, Congress has long legislated for entities
that are not States—the District of Columbia and the Territories. In
so doing, Congress has both made local law directly and also created
local government structures, staffed by local offcials, who themselves
have made and enforced local law. This suggests that when Congress
creates local offces using these two unique powers, the offcers exercise
power of the local government, not the Federal Government. Histori-
cal practice indicates that a federal law's creation of an offce does not
automatically make its holder an offcer of the United States. Congress
has for more than two centuries created local offces for the Territories
450 FIN
ANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
PUERTO RICO v. AURELIUS INVESTMENT, LLC
Syllabus
and District of Columbia that are flled through election or local execu-
tive
appointment. And the history of Puerto Rico—whose public off-
cials with important local responsibilities have been selected in ways
that the Appointments Clause does not describe—is consistent with the
history of other entities that fall within Article IV's scope and with the
history of the District of Columbia. This historical practice indicates
that when an offcer of one of these local governments has primarily
local duties, he is not an offcer of the United States within the meaning
of the Appointments Clause. Pp. 459–464.
(b) The Board members here have primarily local powers and du-
ties. PROMESA says that the Board is “an entity within the territorial
government” that “shall not be considered a department, agency, estab-
lishment, or instrumentality of the Federal Government,” § 101(c), 130
Stat. 553, and Congress gave the Board a structure, duties, and related
powers that are consistent with this statement. The Board's broad in-
vestigatory powers—administering oaths, issuing subpoenas, taking evi-
dence, and demanding data from governments and creditors alike—are
backed by Puerto Rican, not federal, law. Its powers to oversee the
development of Puerto Rico's fscal and budgetary plans are also quint-
essentially local. And in exercising its power to initiate bankruptcy
proceedings, the Board acts on behalf of, and in the interests of, Puerto
Rico. Pp. 465–467.
(c) Buckley v. Valeo, 424 U. S. 1, Freytag v. Commissioner, 501
U. S. 868, and Lucia v. SEC, 585 U. S. 237, do not provide the relevant
legal test here, for each considered an Appointments Clause problem
concerning the importance or signifcance of duties that were indisput-
ably federal or national in nature. Nor do Lebron v. National Railroad
Passenger Corporation, 513 U. S. 374, or MWAA, 501 U. S. 252, help.
Lebron considered whether Amtrak was a governmental or a private
entity, but the fact that the Board is a Government entity does not
answer the “primarily local versus primarily federal” question. And
the MWAA Court expressly declined to address Appointments Clause
questions. However, the Court's analysis in O'Donoghue v. United
States, 289 U. S. 516, and Palmore v. United States, 411 U. S. 389, does
provide a rough analogy. In O'Donoghue, the Court found that Article
III's tenure and salary protections applied to judges of the District of
Columbia courts because those courts exercised the judicial power of
the United States. But the Court reached the seemingly opposite con-
clusion in Palmore, a case decided after Congress had altered the nature
of the District of Columbia local courts so that its judges adjudicated
primarily local issues. Pp. 467–471.
3. Given the conclusion reached here, there is no need to consider
whether to overrule the “Insular Cases” and their progeny, see, e. g.,
Cite
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451
Syllabus
Downes v. Bidwell, 182 U. S. 244, 287, to consider the application of the
de
facto offcer doctrine, see Ryder v. United States, 515 U. S. 177, or to
decide questions about the application of the Federal Relations Act and
Public Law 600. Pp. 471–473.
915 F. 3d 838, reversed and remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Ginsburg, Alito, Kagan, Gorsuch, and Kavanaugh, JJ., joined.
Thomas, J., post, p. 473, and Sotomayor, J., post, p. 482, fled opinions
concurring in the judgment.
Donald B. Verrilli, Jr., argued the cause for the Financial
Oversight and Management Board for Puerto Rico. With
him on the briefs were Ginger D. Anders, Sarah G. Boyce,
Adele M. El-Khouri, Rachel G. Miller-Ziegler, Jordan D.
Segall, Martin J. Bienenstock, Timothy W. Mungoven, Mark
D. Harris, and Chantel L. Febus.
Deputy Solicitor General Wall argued the cause for the
United States. With him on the briefs were Solicitor Gen-
eral Francisco, Assistant Attorney General Hunt, Deputy
Assistant Attorney General Mooppan, Vivek Suri, Mark R.
Freeman, and Michael S. Raab.
Theodore B. Olson argued the cause for Aurelius Invest-
ment, LLC, et al. With him on the briefs were Matthew D.
McGill, Helgi C. Walker, Lucas C. Townsend, Lochlan F.
Shelfer, Jeremy M. Christiansen, and Joshua M. Wesneski.
Jessica E. Méndez-Colberg argued the cause for Unión de
Trabajadores de la Industria Eléctrica y Riego, Inc. With
her on the briefs was Rolando Emmanuelli-Jiménez.
Kathleen M. Sullivan, Susheel Kirpalani, Rafael Escal-
era, and Sylvia M. Anzmend fled a brief for COFINA Se-
nior Bondholders' Coalition.
Ian Heath Gershengorn, Lindsay C. Harrison, Devi M.
Rao, and Catherine Steege fled briefs for Offcial Committee
of Retired Employees of the Commonwealth of Puerto Rico.
Neal D. Mollen and Stephen B. Kinnaird fled briefs in all
cases for the Offcial Committee of Unsecured Creditors of
All Title III Debtors (Other Than COFINA).
452 FIN
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Opinion of the Court
Walter Dellinger, Peter Friedman, William J. Sushon,
and
Yaira Dubin fled briefs for Puerto Rico Fiscal Agency
and Financial Advisory Authority.†
Justice Breyer delivered the opinion of the Court.
The Constitution's Appointments Clause says that the
President
“shall nominate, and by and with the Advice and Con-
sent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme
Court, and all other Offcers of the United States . . . .”
Art. II, § 2, cl. 2 (emphasis added).
†Briefs of amici curiae urging reversal in all cases were for DRA Enti-
ties by Robert Loeb, Matthew R. Shahabian, and Arturo J. García-Solá;
for Elec ted Officers of the Commonwea lth of Puer to Rico by Jo rge
Martínez-Luciano and Emil Rodríguez-Escudero; for the Pacifc Legal
Foundati on by Dan i el M. O r tne r; and for Alan Mygatt-Tauber by
Mr. Mygatt-Tauber, pro se.
Briefs of amici curiae urging affrmance in all cases were fled for the
Virgin Islands Bar Association by J. Russell B. Pate and Edward L.
Barry; and for Aníbal Acevedo-Vilá by Mr. Acevedo-Vilá, pro se, and Joel
A. Montalvo.
Anthony Michael Sabino, pro se, fled a brief of amicus curiae urging
affrmance in No. 18–1334.
Briefs of amici curiae were fled in all cases for the Autonomous Munici-
pality of San Juan, Puerto Rico, by Julissa Reynoso, Aldo Badini, Mar-
celo M. Blackburn, and Michael A. Fernández; for the American Civil
Liberties Union et al. by Adriel I. Cepeda Derieux, Cecillia D. Wang,
David D. Cole, and William Ramírez; for the Cato Institute by Ilya
Shapiro; fled for the Chamber of Commerce of the United States of
America by Ruthanne M. Deutsch and Hyland Hunt; for the Equally
American Legal Defense and Education Fund by Steven S. Rosenthal and
Neil C. Weare; for Former Federal and Local Judges by Gregory Dubin-
sky; for Scholars of Constitutional Law et al. by David N. Rosen; and
for the Washington Legal Foundation by Richard A. Samp and Cory L.
Andrews.
José A. Hernández Mayoral fled a brief of amici curiae in Nos. 18–
1334, 18–1496, and 18–1514 for Sila M. Calderon et al.
Cite
as: 590 U. S. 448 (2020)
453
Opinion of the Court
In 2016, Congress enacted the Puerto Rico Oversight, Man-
agement,
and Economic Stability Act (PROMESA). 130
Stat. 549, 48 U. S. C. § 2101 et seq. That Act created a Fi-
nancial Oversight and Management Board, and it provided,
as relevant here, that the President could appoint its seven
members without “the advice and consent of the Senate,”
i. e., without Senate confrmation.
The question before us is whether this method of appoint-
ment violates the Constitution's Senate-confrmation re-
quirement. In our view, the Appointments Clause governs
the appointments of all offcers of the United States, includ-
ing those located in Puerto Rico. Yet two provisions of the
Constitution empower Congress to create local offces for the
District of Columbia and for Puerto Rico and the Territories.
See Art. I, § 8, cl. 17; Art. IV, § 3, cl. 2. And the Clause's
term “Offcers of the United States” has never been under-
stood to cover those whose powers and duties are primarily
local in nature and derive from these two constitutional pro-
visions. The Board's statutory responsibilities consist of
primarily local duties, namely, representing Puerto Rico in
bankruptcy proceedings and supervising aspects of Puerto
Rico's fscal and budgetary policies. We therefore fnd that
the Board members are not “Offcers of the United States.”
For that reason, the Appointments Clause does not dictate
how the Board's members must be selected.
I
A
In 2006, tax advantages that had previously led major
businesses to invest in Puerto Rico expired. See Small
Business Job Protection Act of 1996, § 1601, 110 Stat. 1827.
Many industries left the island. Emigration increased.
And the public debt of Puerto Rico's government and its in-
strumentalities soared, rising from $39.2 billion in 2005 to
$71 billion in 2016. See Dept. of Treasury, Puerto Rico's
454 FIN
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Opinion of the Court
Economic and Fiscal Crisis 1, 3, https://www.treasury.gov/
c
onnect/ blog/ Documents/ Puerto_Ricos_fiscal_challenges
.pdf; GAO, U. S. Territories: Public Debt Outlook 12 (GAO–
18–160, 2017).
Puerto Rico found that it could not service that debt. Yet
Puerto Rico could not easily restructure it. The Federal
Bankruptcy Code's municipality-related Chapter 9 did not
apply to Puerto Rico (or to the District of Columbia). See
11 U. S. C. §§ 109(c), 101(52). But at the same time, federal
bankruptcy law invalidated Puerto Rico's own local “debt-
restructuring ” statutes. Puerto Rico v. Franklin Cal. Tax-
Free Trust, 579 U. S. 115 (2016). In 2016, in response to
Puerto Rico's fscal crisis, Congress enacted PROMESA.
130 Stat. 549, 48 U. S. C. § 2101 et seq.
PROMESA allows Puerto Rico and its entities to fle for
federal bankruptcy protection. See §§ 301, 302, 130 Stat.
577, 579; cf. 11 U. S. C. § 901 (related to bankruptcies of local
governments). The fling and subsequent proceedings are
to take place in the United States District Court for the Dis-
trict of Puerto Rico, before a federal judge selected by the
Chief Justice of the United States. PROMESA §§ 307–308,
130 Stat. 582. PROMESA also created the Financial Over-
sight and Management Board—with seven members ap-
pointed by the President and with the Governor serving as
an ex offcio member. §§ 101(b), (e), id., at 553, 554–555.
PROMESA gives the Board authority to fle for bankruptcy
on behalf of Puerto Rico or its instrumentalities. § 304(a), id.,
at 579. The Board can supervise and modify Puerto Rico's
laws (and budget) to “achieve fscal responsibility and access
to the capital markets.” § 201(b), id., at 564; see §§ 201–207,
id., at 563–575. And it can gather evidence and conduct in-
vestigations in support of these efforts. § 104, id., at 558–561.
As we have just said, PROMESA gives the President of
the United States the power to appoint the Board's seven
members without Senate confrmation, so long as he selects
Cite
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455
Opinion of the Court
six from lists prepared by congressional leaders. § 101(e)
(2)(A),
id., at 554–555.
B
On August 31, 2016, President Obama selected the Board's
seven members in the manner just described. The Board
established offces in Puerto Rico and New York, and soon
fled bankruptcy petitions on behalf of the Commonwealth
and (eventually) five Commonwealth entities. Title III
Petition in No. 17–BK–3283 (PR); see Order Pursuant to
PROMESA Section 304(g), No. 17–BK–3283 (PR, Oct. 9,
2019), Doc. 8829 (consolidating petitions fled on behalf of the
Commonwealth of Puerto Rico, the Puerto Rico Sales Tax
Financing Corporation, the Puerto Rico Highways and
Transportation Authority, the Employees Retirement Sys-
tem of the Government of the Commonwealth of Puerto Rico,
the Puerto Rico Electric Power Authority, and the Puerto
Rico Public Buildings Authority). And The Chief Justice
then selected a federal judge to serve as bankruptcy judge
for Puerto Rico. Designation of Presiding District Judge,
No. 17–BK–3283 (PR, May 5, 2017), Doc. 4.
After both court and Board had decided a number of mat-
ters, several creditors moved to dismiss all proceedings on
the ground that the Board members' selection violated the
Appointments Clause. The court denied the motions. See
In re Financial Oversight and Management Bd. of Puerto
Rico, 318 F. Supp. 3d 537, 556–557 (PR 2018). The creditors
appealed to the United States Court of Appeals for the First
Circuit. That court reversed. It held that the selection of
the Board's members violated the Appointments Clause.
915 F. 3d 838, 861 (2019). But it concluded that those Board
actions taken prior to its decision remained valid under the
“de facto offcer” doctrine. Id., at 862–863; see, e. g., Mc-
Dowell v. United States, 159 U. S. 596, 601 (1895) ( judicial
decisions could not later be attacked on ground that an un-
456 FIN
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Opinion of the Court
lawfully sitting judge presided); Ball v. United States, 140
U
. S. 118, 128–129 (1891) (same).
The Board, the United States, and various creditors then
fled petitions for certiorari in this Court, some arguing that
the appointments were constitutionally valid, others that the
de facto offcer doctrine did not apply. Compare Pets. for
Cert. in Nos. 18–1334, 18–1496, 18–1514 with Pets. for Cert.
in Nos. 18–1475, 18–1521. In light of the importance of the
questions, we granted certiorari in all the petitions and con-
solidated them for argument. 588 U. S. 901 (2019).
II
Congress created the Board pursuant to its power under
Article IV of the Constitution to “make all needful Rules and
Regulations respecting the Territory . . . belonging to the
United States.” § 3, cl. 2; see PROMESA § 101(b)(2), 130
Stat. 553. Some have argued in these cases that the Ap-
pointments Clause simply does not apply in the context of
Puerto Rico. But, like the Court of Appeals, we believe the
Appointments Clause restricts the appointment of all offcers
of the United States, including those who carry out their
powers and duties in or in relation to Puerto Rico.
The Constitution's structure provides strong reason to be-
lieve that is so. The Constitution separates the three basic
powers of Government—legislative, executive, and judicial—
with each branch serving different functions. But the Con-
stitution requires cooperation among the three branches in
specifed areas. Thus, to become law, proposed legislation
requires the agreement of both Congress and the President
(or, a supermajority in Congress). See INS v. Chadha, 462
U. S. 919, 955 (1983) (noting that the Constitution prescribes
only four specifc actions that Congress can take without bi-
cameralism and presentment). At the same time, legislation
must be consistent with constitutional constraints, and we
usually look to the Judiciary as the ultimate interpreter of
those constraints.
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457
Opinion of the Court
The Appointments Clause refects a similar allocation of
responsibi
lity, between President and Senate, in cases in-
volving appointment to high federal offce. That Clause re-
fects the Founders' reaction to “one of [their] generation's
greatest grievances against [pre-Revolutionary] executive
power,” the manipulation of appointments. Freytag v. Com-
missioner, 501 U. S. 868, 883 (1991); see also The Federalist
No. 76, p. 455 (C. Rossiter ed. 1961) (A. Hamilton) (the Ap-
pointments Clause helps to preserve democratic accountabil-
ity). The Founders addressed their concerns with the ap-
pointment power by both concentrating it and distributing
it. On the one hand, they ensured that primary responsibil-
ity for nominations would fall on the President, whom they
deemed “less vulnerable to interest-group pressure and per-
sonal favoritism” than a collective body. Edmond v. United
States, 520 U. S. 651, 659 (1997). See also The Federalist
No. 76, at 455 (“The sole and undivided responsibility of one
man will naturally beget a livelier sense of duty and a more
exact regard to reputation”). On the other hand, they en-
sured that the Senate's advice and consent power would pro-
vide “an excellent check upon a spirit of favoritism in the
President and a guard against the appointment of unft char-
acters.” NLRB v. SW General, Inc., 580 U. S. 288, 293
(2017) (internal quotation marks omitted). By “limiting the
appointment power” in this fashion, the Clause helps to “en-
sure that those who wielded [the appointments power] were
accountable to political force and the will of the people.”
Freytag, supra, at 884; see also Edmond, 520 U. S., at 659.
“The blame of a bad nomination would fall upon the presi-
dent singly and absolutely,” while “[t]he censure of rejecting
a good one would lie entirely at the door of the senate.” Id.,
at 660 (internal quotation marks omitted).
These other structural constraints, designed in part to en-
sure political accountability, apply to all exercises of federal
power, including those related to Article IV entities. Cf.,
e. g., Metropolitan Washington Airports Authority v. Citi-
458 FIN
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Opinion of the Court
zens for Abatement of Aircraft Noise, Inc., 501 U. S. 252,
270
–271 (1991) (MWAA) (separation-of-powers principles
apply when Congress acts under its Article IV power to leg-
islate “respecting . . . other Property”). See also, e. g., Act
of Aug. 7, 1789, ch. 8, 1 Stat. 50 (the First Congress using
bicameralism and presentment to make rules and regulations
for the Northwest Territory). The objectives advanced by
the Appointments Clause counsel strongly in favor of that
Clause applying to the appointment of all “Offcers of the
United States.” Why should it be different when such an
offcer's duties relate to Puerto Rico or other Article IV
entities?
Indeed, the Appointments Clause has no Article IV excep-
tion. The Clause says in part that the President
“shall nominate, and by and with the Advice and Con-
sent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme
Court, and all other Offcers of the United States, whose
Appointments . . . shall be established by Law . . . .”
Art. II, § 2, cl. 2.
That text frmly indicates that it applies to the appointment
of all “Offcers of the United States.” And history confrms
this reading. Before the writing of the Constitution, Con-
gress had enacted an ordinance that allowed Congress to ap-
point offcers to govern the Northwest Territory. As soon
as the Constituti on became law, the First Congress
“adapt[ed]” that ordinance “to the present Constitution of
the United States,” Act of Aug. 7, 1789, 1 Stat. 51, in large
part by providing for an appointment process consistent
with the constraints of the Appointments Clause. In partic-
ular, it provided for a Presidential-appointment, Senate-
confrmation process for high-level territorial appointees
who assumed federal, as well as local, duties. See id., at 52,
n. (a); § 1, id., at 53 (appointment by President, and confr-
mation by Senate, of Governor, secretary, and members of
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459
Opinion of the Court
the upper house); Act of Sept. 11, 1789, ch. 13, § 1, 1 Stat. 68
(
Governor “discharg[ed]” the federal “duties of superintend-
ent of Indian affairs”). Later Congresses took a similar ap-
proach to later territorial Governors with federal duties.
See Act of June 6, 1900, § 10, 31 Stat. 325 (appointment of
Governor of Territory of Alaska by President with confr-
mation by Senate); § 2, id., at 322 (federal duties of Alaska
territorial Governor include entering into contracts in name
of the United States and granting reprieves for federal of-
fenses); Act of Mar. 2, 1819, §§ 3, 10, 3 Stat. 494, 495 (similar
for Governor of Arkansas). We do not mean to suggest that
every time Congress chooses to require advice and consent
procedures it does so because they are constitutionally re-
quired. At times, Congress may wish to require Senate con-
frmation for policy reasons. Even so, Congress' practice of
requiring advice and consent for these Governors with im-
portant federal duties supports the inference that Congress
expected the Appointments Clause to apply to at least some
offcials with supervisory authority over the Territories.
Given the Constitution's structure, this history, roughly
analogous case law, and the absence of any conficting author-
ity, we conclude that the Appointments Clause constrains the
appointments power as to all “Offcers of the United States,”
even when those offcers exercise power in or related to
Puerto Rico.
III
A
The more diffcult question before us is whether the Board
members are offcers of the United States such that the Ap-
pointments Clause requires Senate confrmation. If they
are not offcers of the United States, but instead are some
other type of offcer, the Appointments Clause says nothing
about them. (No one suggests that they are “Ambassa-
dors,” “other public Ministers and Consuls,” or “Judges of
the supreme Court.”) And as we shall see, the answer to
460 FIN
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Opinion of the Court
this question turns on whether the Board members have pri-
mar
ily local powers and duties.
The language at issue does not offer us much guidance for
understanding the key term “of the United States.” The
text suggests a distinction between federal offcers—offcers
exercising power of the National Government—and nonfed-
eral offcers—offcers exercising power of some other gov-
ernment. The Constitution envisions a federalist structure,
with the National Government exercising limited federal
power and other, local governments—usually state govern-
ments—exercising more expansive power. But the Consti-
tution recognizes that for certain localities, there will be no
state government capable of exercising local power. Thus,
two provisions of the Constitution, Article I, § 8, cl. 17, and
Article IV, § 3, cl. 2, give Congress the power to legislate for
those localities in ways “that would exceed its powers, or at
least would be very unusual” in other contexts. Palmore v.
United States, 411 U. S. 389, 398 (1973). Using these pow-
ers, Congress has long legislated for entities that are not
States—the District of Columbia and the Territories. See
District of Columbia v. John R. Thompson Co., 346 U. S. 100,
104–106 (1953). And, in doing so, Congress has both made
local law directly and also created structures of local govern-
ment, staffed by local offcials, who themselves have made
and enforced local law. Compare, e. g., Act of Mar. 2, 1962,
§ 401, 76 Stat. 17 (changing D. C. liquor tax from $1.25 per
gallon to $1.50 per gallon), with District of Columbia Self-
Government and Governmental Reorganization Act, 87 Stat.
774 (giving local D. C. government primary legislative con-
trol over local matters). This structure suggests that when
Congress creates local offces using these two unique powers,
the offcers exercise power of the local government, not the
Federal Government. Cf. American Ins. Co. v. 356 Bales of
Cotton, 1 Pet. 511, 546 (1828) (Marshall, C. J.) (territorial
courts may exercise the judicial power of the Territories
without the life tenure and salary protections mandated by
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461
Opinion of the Court
Article III for federal judges); Cincinnati Soap Co. v. United
Sta
tes, 301 U. S. 308, 323 (1937) (territorial legislators may
exercise the legislative power of the Territories without vio-
lating the nondelegation doctrine).
History confrms what the Constitution's text and struc-
ture suggest. See NLRB v. Noel Canning, 573 U. S. 513,
524 (2014) (relying on history and structure in interpreting
the Recess Appointments Clause). See also McCulloch v.
Maryland, 4 Wheat. 316, 401 (1819) (emphasizing the utility
of historical practice in interpreting constitutional provi-
sions). Longstanding practice indicates that a federal law's
creation of an offce in this context does not automatically
make its holder an “Offcer of the United States.” Rather,
Congress has often used these two provisions to create local
offces flled in ways other than those specifed in the Ap-
pointments Clause. When the First Congress legislated for
the Northwest Territories, for example, it created a House
of Representatives for the Territory with members selected
by election. It also created an upper house of the territorial
legislature, whose members were appointed by the President
(without Senate confrmation) from lists provided by the
elected, lower house. And it created magistrates appointed
by the Governor. See Act of Aug. 7, 1789, 1 Stat. 51, n. (a).
The practice of creating by federal law local offces for the
Territories and District of Columbia that are flled through
election or local executive appointment has continued un-
abated for more than two centuries. See, e. g., ibid. (North-
west Territories local offces flled by election); Act of Apr.
7, 1798, § 3, 1 Stat. 550 (Mississippi, same); Act of May 7,
1800, § 2, 2 Stat. 59 (Indiana, same); Act of May 15, 1820, § 3,
3 Stat. 584 (District of Columbia, same); Act of Apr. 30, 1900,
§ 13, 31 Stat. 144 (Hawaii, same); Act of Aug. 24, 1912, § 4, 37
Stat. 513 (Alaska, same); Act of Aug. 23, 1968, § 4, 82 Stat.
837 (Virgin Islands, same); Act of Sept. 11, 1968, Pub. L. 90–
497, § 1, 82 Stat. 842 (Guam, same); Act of May 4, 1812, § 3, 2
Stat. 723 (D. C. Mayor appoints “all offces”); Act of June 4,
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1812, § 2, 2 Stat. 744 (Missouri Governor, similar); Act of Mar.
2,
1819, § 3, 3 Stat. 494 (Arkansas, similar); Act of June 6,
1900, § 2, 31 Stat. 322 (Alaska, similar); Act of Sept. 11, 1968,
§ 1, 82 Stat. 843 (Guam, similar). Like Justice Thomas,
post, at 477 (opinion concurring in judgment), we think the
practice of the First Congress is strong evidence of the origi-
nal meaning of the Constitution. We fnd this subsequent
history similarly illuminates the text's meaning.
Puerto Rico's history is no different. It reveals a long-
standing practice of selecting public offcials with important
local responsibilities in ways that the Appointments Clause
does not describe. In 1898, at the end of the Spanish-
American War, the United States took responsibility for de-
termining the civil rights of Puerto Ricans as well as Puerto
Rico's political status. Treaty of Paris, Art. 9, Dec. 10, 1898,
30 Stat. 1759. In 1900, the Foraker Act provided for Presi-
dential appointment (with Senate confrmation) of Puerto
Rico's Governor, the heads of six departments, the legisla-
ture's upper house, and the justices of its high court. Or-
ganic Act of 1900, §§ 17, 18, 33, 31 Stat. 81, 84. But it also
provided for the selection, through popular election, of a
lower legislative house with the power (subject to upper
house concurrence) to “alter, amend, modify, and repeal any
and all laws . . . of every character.” §§ 27, 32, id., at 82, 84.
There is no indication that anyone thought members of the
lower house, wielding important local responsibilities, were
“Offcers of the United States.”
Congress replaced the Foraker Act with the Jones Act in
1917. Organic Act of Puerto Rico, ch. 145, 39 Stat. 951.
Under the Jones Act the Puerto Rican Senate was elected
and consequently no longer satisfed the Appointments
Clause criteria. See § 26, id., at 958. Similarly, the Gover-
nor of Puerto Rico nominated four cabinet members, con-
frmed by the Senate of Puerto Rico. § 13, id., at 955–956.
The elected legislature retained “all local legislative pow-
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ers,” including the power to appropriate funds. §§ 25, 34,
37,
id., at 958, 962, 964.
Congress amended the Jones Act in 1947 to provide for an
elected Governor of Puerto Rico, and granted that Governor
the power to appoint all cabinet offcials. See Act of Aug. 5,
1947, ch. 490, §§ 1, 3, 61 Stat. 770, 771. The President re-
tained the power to appoint (with Federal Senate confrma-
tion) judges, an auditor, and the new offce of Coordinator of
Federal Agencies, who was to supervise federal functions in
Puerto Rico and recommend to higher federal offcials ways
to improve the quality of federal services. § 6, id., at 772.
In 1950, Congress enacted Public Law 600, “in the nature
of a compact” with Puerto Rico and subject to approval by
the voters of Puerto Rico. Act of July 3, 1950, ch. 446, §§ 1,
2, 64 Stat. 319. The Act adopted the Jones Act, as amended,
as the Puerto Rican Federal Relations Act, and provided for
the Jones Act's substantial (but not complete) repeal upon
the effective adoption of a contemplated Puerto Rican consti-
tution. §§ 4, 5, id., at 319–320. Among the provisions of
the Jones Act that Public Law 600 retained were several
related to Puerto Rico's public debt. Congress retained, for
example, the tr iple-tax-exempt nature of Puer to Rican
bonds. Jones Act, § 3, 39 Stat. 953. It also retained a (later
repealed) cap on the amount of public debt Puerto Rico or
its subdivisions could accumulate. Ibid. In a public refer-
endum, the citizens of Puerto Rico approved Public Law
600—including the limits on debt in § 3 of the Federal Rela-
tions Act—and then began the constitution-making process.
Pub. L. 600, §§ 2, 3, 64 Stat. 319; see Act of July 3, 1952, 66
Stat. 327; A. Fernós-Isern, Original Intent in the Constitu-
tion of Puerto Rico 13 (2d ed. 2002).
Puerto Rico's popularly ratifed Constitution, which Con-
gress accepted with a few fairly minor changes, does not in-
volve the President or the Senate in the appointment process
for local offcials. That Constitution provides for the elec-
464 FIN
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Opinion of the Court
tion of Puerto Rico's Governor and legislators. Art. III, § 1;
Ar
t. IV, § 1. And it provides for gubernatorial appointment
(and Puerto Rican Senate confrmation) of cabinet offcers.
Art. IV, § 5.
The upshot is that Puerto Rico's history refects long-
standing use of various methods for selecting offcials with
primarily local responsibilities. This history is consistent
with the history of other entities that fall within the scope
of Article IV and with the history of the District of Colum-
bia. See supra, at 461–462. And it comports with our
precedents, which have long acknowledged that Congress
may structure local governments under Article IV and Arti-
cle I in ways that do not precisely mirror the constitutional
blueprint for the National Government. See, e. g., Benner
v. Porter, 9 How. 235, 242 (1850). Cf. Glidden Co. v. Zdanok,
370 U. S. 530, 546 (1962) (plurality opinion) (recognizing that
local governments created by Congress could, like govern-
ments of the States, “dispense with protections deemed in-
herent in a separation of governmental powers”). Some-
times Congress has specifed the use of methods that would
satisfy the Appointments Clause, other times it has specifed
methods that would not satisfy the Appointments Clause, in-
cluding elections and appointment by local offcials. Off-
cials with primarily local duties have often fallen into the
latter categories. We know of no case endorsing an Ap-
pointments Clause based challenge to such selection meth-
ods. Indeed, to read Appointments Clause constraints as
binding Puerto Rican offcials with primarily local duties
would work havoc with Puerto Rico's (federally ratifed)
democratic methods for selecting many of its offcials.
We thus conclude that while the Appointments Clause does
restrict the appointment of “Offcers of the United States”
with duties in or related to the District of Columbia or an
Article IV entity, it does not restrict the appointment of local
offcers that Congress vests with primarily local duties under
Article IV, § 3, or Article I, § 8, cl. 17.
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B
The
question remains whether the Board members have
primarily local powers and duties. We note that the Clause
qualifes the phrase “Offcers of the United States” with the
words “whose Appointments . . . shall be established by
Law.” And we also note that PROMESA says that the
Board is “an entity within the territorial government” and
“shall not be considered to be a department, agency, estab-
lishment, or instrumentality of the Federal Government.”
§ 101(c), 130 Stat. 553. But the most these words show is
that Congress did not intend to make the Board members
“Offcers of the United States.” It does not prove that, inso-
far as the Constitution is concerned, they succeeded.
But we think they have. Congress did not simply state
that the Board is part of the local Puerto Rican government.
Rather, Congress also gave the Board a structure, a set of
duties, and related powers all of which are consistent with
this statement.
The government of Puerto Rico pays the Board's expenses,
including the salaries of its employees (the members serve
without pay). § 107, id., at 562; see § 101(g), id., at 556. The
Board possesses investigatory powers. It can hold hear-
ings. § 104(a), id., at 558. It can issue subpoenas, subject
to Puerto Rico's limits on personal jurisdiction and enforce-
able under Puerto Rico's laws. § 104(f ), id., at 559. And it
can enforce those subpoenas in (and only in) Puerto Rico's
courts. §§ 104(f )(2), 106(a), id., at 559, 562.
From its own offces in or outside of Puerto Rico, the
Board works with the elected government of Puerto Rico to
develop a fscal plan that provides “a method to achieve fscal
responsibility and access to the capital markets.” § 201(b),
id., at 564. If it fnds it necessary, the Board can develop its
own budget for Puerto Rico which is “deemed . . . approved”
and becomes the operative budget. § 202(e)(3), id., at 568.
It can ensure compliance with the plan and budget by re-
viewing the Puerto Rico government's laws and spending
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Opinion of the Court
and by “direct[ing]” corrections or taking “such [other] ac-
ti
ons as it considers necessary,” including preventing a law
from taking effect. §§ 203(d), 204(a), id., at 569, 571. The
Board controls the issuance of new debt for Puerto Rico.
§ 207, id., at 575.
The Board also may initiate bankruptcy proceedings for
Puerto Rico or its instrumentalities. § 304(a), id., at 579.
It may take any related “action necessary on behalf of,” and
it serves as “the representative of,” Puerto Rico or its in-
strumentalities. § 315, id., at 584. These proceedings take
place in the U. S. District Court for Puerto Rico. § 307, id.,
at 582.
To repeat: The Board has broad investigatory powers: It
can administer oaths, issue subpoenas, take evidence and de-
mand data from governments and creditors alike. But these
powers are backed by Puerto Rican, not federal, law: Sub-
poenas are governed by Puerto Rico's personal jurisdiction
statute; false testimony is punishable under the law of
Puerto Rico; the Board must seek enforcement of its subpoe-
nas by fling in the courts of Puerto Rico. See § 104, id., at
558–561. These powers are primarily local in nature.
The Board also oversees the development of Puerto Rico's
fscal and budgetary plans. It receives and evaluates pro-
posals from the elected Governor and legislature. It can
create a budget “deemed” to be that of Puerto Rico. It can
intervene when budgetary constraints are violated. And it
has authority over the issuance of new debt. §§ 201–207, id.,
at 563–575. These powers, too, are quintessentially local.
Each concerns the fnances of the Commonwealth, not of the
United States. The Board members in this respect dis-
charge duties ordinarily held by local offcials.
Last, the Board has the power to initiate bankruptcy pro-
ceedings. But in doing so, it acts not on behalf of the United
States, but on behalf of, and in the interests of, Puerto Rico.
The proceedings take place in federal court; but the same is
true of all persons or entities who seek bankruptcy protec-
Cite
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467
Opinion of the Court
tion. The Board here acts as a local government that might
t
ake precisely the same ac ti ons. See, e. g., 11 U. S. C.
§§ 109(c), 921 (related to bankruptcies of local governments).
Some Board actions, of course, may have nationwide con-
sequences. But the same can be said of many actions taken
by many Governors or other local offcials. Taking actions
with nationwide consequences does not automatically trans-
form a local offcial into an “Offcer of the United States.”
The challengers rely most heavily on the nationwide effects
of the bankruptcy proceedings. E. g., Brief for Aurelius
et al. 31; Brief for Petitioner Unión de Trabajadores de la
Industria Eléctrica y Riego, Inc. (UTIER) 49. But the same
might be said of any major municipal, or even corporate,
bankruptcy. E. g., In re Detroit, 504 B. R. 97 (Bkrtcy. Ct.
ED Mich. 2013) (restructuring $18 billion in municipal debt).
In shor t, the Board possesses considerable power—
including the authority to substitute its own judgment for
the considered judgment of the Governor and other elected
offcials. But this power primarily concerns local matters.
Congress' law thus substitutes a different process for deter-
mining certain local policies (related to local fscal responsi-
bility) in respect to local matters. And that is the critical
point for current purposes. The local nature of the legisla-
tion's expressed purposes, the representation of local inter-
ests in bankruptcy proceedings, the focus of the Board's pow-
ers upon local expenditures, the local logistical support, the
reliance on local laws in aid of the Board's procedural
powers—all these features when taken together and judged
in the light of Puerto Rico's history (and that of the Territo-
ries and the District of Columbia)—make clear that the
Board's members have primarily local duties, such that their
selection is not subject to the constraints of the Appoint-
ments Clause.
IV
The Court of Appeals, pointing to three of this Court's
cases, reached the opposite conclusion. See Buckley v.
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Valeo, 424 U. S. 1 (1976) (per curiam), Freytag v. Commis-
sio
ner, 501 U. S. 868, and Lucia v. SEC, 585 U. S. 237 (2018).
It pointed out that the Court, in those cases, discussed the
term “Offcer of the United States,” and it concluded that,
for Appointments Clause purposes, an appointee is such an
“offcer” if “(1) the appointee occupies a `continuing ' position
established by federal law; (2) the appointee `exercis[es] sig-
nifcant authority'; and (3) the signifcant authority is exer-
cised `pursuant to the laws of the United States.' ” 915
F. 3d, at 856. The Court of Appeals concluded that the
Board members satisfed this test. See id., at 856–857.
We do not believe these three cases set forth the critical
legal test relevant here, however, and we do not apply any
test they might enunciate. Each of the cases considered an
Appointments Clause problem concerning the importance or
signifcance of duties that were indisputably federal or na-
tional in nature. In Buckley, the question was whether
members of the Federal Election Commission—appointees
carrying out federal-election related duties—were “offcers”
for Appointments Clause purposes. In Freytag, the Court
asked the same question about special federal trial judges
serving on federal tax courts. And in Lucia, the Court
asked the same question about federal administrative law
judges carrying out Securities and Exchange Commission
duties.
Here, PROMESA, a federal law, creates the Board and its
duties, and no one doubts their signifcance. But we cannot
stop there. To do so would ignore the history we have
discussed—history stretching back to the founding. See
supra, at 461–464. And failing to take account of the nature
of an appointee's federally created duties, i. e., whether they
are p r im ar i ly l oca l v e rsu s p r im ar i ly fede ra l, wou ld
threaten interference with democratic (or local appointment)
selection methods in numerous Article IV Territories and
perhaps the District of Columbia as well. See, e. g., 48
U. S. C. § 1422 (providing for an elected Governor of Guam);
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469
Opinion of the Court
§ 1591 (same for Virgin Islands); District of Columbia Self-
Gover
nment Act, § 421, 87 Stat. 789 (same for D. C. Mayor);
§ 422(2), 87 Stat. 790 (describing D. C. Mayor's appointment
powers); 48 U. S. C. § 1422c (same for Guam's Governor);
§ 1597(c) (same for Virgin Islands). There is no reason to
understand the Appointments Clause—which, at least in
part, seeks to advance democratic accountability and broaden
appointments-related responsibility, see supra, at 457–458—
as making it signifcantly more diffcult for local residents of
such areas to share responsibility for the implementation of
(statutorily created) primarily local duties. Neither the
text nor the history of the Clause commands such a result.
Neither do Lebron v. National Railroad Passenger Corpo-
ration, 513 U. S. 374 (1995), or MWAA, 501 U. S. 252, help
those challeng ing the Board's constitutiona l leg itimacy.
Lebron considered whether, for First Amendment purposes,
Amtrak was a governmental or a private entity. 513 U. S.,
at 379. All here agree that the Board is a Government en-
tity, but that fact does not answer the “primarily local versus
primarily federal” question. In MWAA, the Court held that
separation-of-powers principles forbid Members of Congress
to become members of a board that controls federally owned
airports. 501 U. S., at 275–276 (relying on Bowsher v.
Synar, 478 U. S. 714, 726 (1986), and INS v. Chadha, 462 U. S.
919, 952 (1983)). The Court expressly declined to answer
any question related to the Appointments Clause. 501 U. S.,
at 277, n. 23.
While we have found no case from this Court directly on
point, we believe that the Court's analysis in O'Donoghue v.
United States, 289 U. S. 516 (1933), and especially Palmore
v. United States, 411 U. S. 389, provides a rough analogy.
In O'Donoghue, the Court considered whether Article III's
tenure and salary protections applied to judges of the courts
in the District of Columbia. The Court held that they did.
Those courts, it believed, were “ `courts of the United
States' ” and “recipients of the judicial power of the United
470 FIN
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States.” 289 U. S., at 546, 548. The judges' salaries conse-
quently
could not be reduced. Id., at 551.
In Palmore, however, the Court reached what might seem
the precisely opposite conclusion. A criminal defendant, in-
voking O'Donoghue, argued that the D. C. Superior Court
Judge could not constitutionally preside over the case be-
cause the judge lacked Article III's tenure protection,
namely, life tenure. Palmore, supra, at 390. But the Court
rejected the defendant's argument. Why? How did it ex-
plain O'Donoghue?
The difference, said the Court, lies in the fact that, in the
meantime, Congress had changed the nature of the District
of Columbia court. Palmore, supra, at 406–407; see District
of Columbia Court Reform and Criminal Procedure Act of
1970, 84 Stat. 473. Congress changed what had been a uni-
fed court system where judges adjudicated both local and
federal issues into separate court systems, in one of which
judges adjudicated primarily local issues. § 111, id., at 475.
Courts in that category had criminal jurisdiction over only
those cases brought “ `under any law applicable exclusively
to the District of Columbia.' ” Id., at 486. Its judges
served for 15-year terms. Id., at 491.
This Court, in Palmore, considered a local judge presiding
over a local court. Congress had created that court in the
exercise of its Article I power to “exercise exclusive Legisla-
tion in all Cases whatsoever” over the District of Columbia.
See Art. I, § 8, cl. 17. The “focus” of these courts was “pri-
marily upon . . . matters of strictly local concern.” 411 U. S.,
at 407. Hence, the nature of those courts was a “far cry”
from that of the courts at issue in O'Donoghue. Palmore,
411 U. S., at 406.
The Court added that Congress had created non-Article
III courts under its Article IV powers. It wrote that Con-
gress could also create non-Article III courts under its Arti-
cle I powers. Id., at 403, 410. And it held that judges serv-
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471
Opinion of the Court
ing on those non-Article III courts lacked Article III protec-
ti
ons. Id., at 410.
Palmore concerned Article I of the Constitution, not Arti-
cle IV. And it concerned “the judicial Power of the United
States,” not “Offcers of the United States.” But it provides
a rough analogy. It holds that Article III protections do not
apply to an Article I court “focus[ed],” unlike the courts at
issue in O'Donoghue, primarily on local matters. Here, Con-
gress expressly invoked a constitutional provision allowing
it to make local debt-related law (Article IV); it expressly
located the Board within the local government of Puerto
Rico; it clearly indicated that it intended the Board's mem-
bers to be local offcials; and it gave them primarily local
powers, duties, and responsibilities.
In his concurring opinion, Justice Thomas criticizes the
inquiry we set out—whether an offcer's duties are primarily
local or primarily federal—as too “amorphous,” post, at 480.
But we think this is the test established by the Constitution's
text, as illuminated by historical practice. And we cannot
see how Congress could avoid the strictures of the Appoint-
ments Clause by adding to a federal offcer's other obliga-
tions a large number of local duties. Indeed, we think that
our test, tied as it is to both the text and the history of the
Appointments Clause, is more rigorous than the bare inquiry
into the “nature” of the offcer's authority that Justice
Thomas proposes, and we believe it is more faithful to the
Clause's original meaning. Ibid.
V
We conclude, for the reasons stated, that the Constitution's
Appointments Clause applies to the appointment of offcers
of the United States with powers and duties in and in rela-
tion to Puerto Rico, but that the congressionally mandated
process for selecting members of the Financial Oversight and
Management Board for Puerto Rico does not violate that
472 FIN
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Opinion of the Court
Clause. Given this conclusion, we need not consider the re-
quest
by some of the parties that we overrule the much-
criticized “Insular Cases” and their progeny. See, e. g.,
Downes v. Bidwell, 182 U. S. 244, 287 (1901) (opinion of
Brown, J.); Balzac v. Porto Rico, 258 U. S. 298, 309 (1922);
Reid v. Covert, 354 U. S. 1, 14 (1957) (plurality opinion) (indi-
cating that the Insular Cases should not be further ex-
tended); see also Brief for Offcial Committee of Unsecured
Creditors of All Title III Debtors (Other than COFINA) 20–
25 (arguing that the Insular Cases support reversal on the
Appointments Clause issue); Brief for UTIER 64–66 (encour-
aging us to overrule the Insular Cases); Brief for Virgin Is-
lands Bar Association as Amicus Curiae 13–18 (same); Ca-
branes, Citizenship and the American Empire, 127 U. Pa.
L. Rev. 391, 436–442 (1978) (criticizing the Insular Cases);
Littlefeld, The Insular Cases, 15 Harv. L. Rev. 169 (1901)
(same). Those cases did not reach this issue, and whatever
their continued validity we will not extend them in these
cases. See Reid, supra, at 14.
Neither, since we hold the appointment method valid, need
we consider the application of the de facto offcer doctrine.
See Ryder v. United States, 515 U. S. 177 (1995) (discus-
sing the doctrine); see also, e. g., Brief for Aurelius et al.
48–69 (arguing the doctrine does not apply in this context);
Brief for UTIER 69–85 (same); Reply Brief for United
States 26–47 (insisting to the contrary); Brief for Cross-
Respondent COFINA Senior Bondholders' Coalition 14–46
(same).
Finally, as Justice Sotomayor recognizes, post, at 488–
489 (opinion concurring in judgment), we need not, and
therefore do not, decide questions concerning the application
of the Federal Relations Act and Public Law 600. No party
has argued that those Acts bear any signifcant relation to
the answer to the Appointments Clause question now be-
fore us.
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473
Thomas, J., concurring in judgment
For these reasons, we reverse the judgment of the Court
of
Appeals and remand the cases for further proceedings con-
sistent with this opinion.
It is so ordered.
Justice Thomas, concurring in the judgment.
The Court reaches the right conclusion: The appointment
process for members of the Financial Oversight and Manage-
ment Board for Puerto Rico (Board) does not violate the Ap-
pointments Clause. I cannot agree, however, with the ill-
defned path that the Court takes to reach this result. I
would resolve these cases based on the original public mean-
ing of the phrase “Offcers of the United States” in the Ap-
pointments Clause.
I
The Appointments Clause provides that the President
“shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other public Minis-
ters and Consuls, Judges of the supreme Court, and all other
Offcers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established
by Law.” Art. II, § 2, cl. 2. The Clause also permits Con-
gress to vest the appointment of “inferior Offcers” in “the
President alone,” “the Courts of Law,” or “the Heads of De-
partments.” Ibid.
As I have previously explained, the original public mean-
ing of the phrase “Offcers of the United States” includes “all
federal civil offcials who perform an ongoing, statutory
duty.” Lucia v. SEC, 585 U. S. 237, 254 (2018) (concurring
opinion) (citing Mascott, Who Are “Offcers of the United
States”? 70 Stan. L. Rev. 443, 454 (2018) (Mascott)). At
the founding, the term “offcer” referred to “anyone who per-
formed a continuous public duty.” 585 U. S., at 254. And
the phrase “of the United States” limited the Appointments
Clause to “federal” offcers. Ibid.; see Mascott 471–479.
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II
T
erritorial offcials performing duties created under Arti-
cle IV of the Constitution are not federal offcers within the
original meaning of the phrase “Offcers of the United
States.” Since the founding, this Court has recognized a
distinction between Article IV power and the powers of the
National Government in Articles I, II, and III. The found-
ing generation understood the phrase “Offcers of the United
States” to refer to offcers exercising the powers of the Na-
tional Government, not offcers solely exercising Article IV
territorial power. Because the Board's members perform
duties pursuant to Article IV, they do not qualify as “Offcers
of the United States.”
A
The Territory Clause of Article IV provides Congress the
“Power to dispose of and make all needful Rules and Regula-
tions respecting the Territory . . . belonging to the United
States.” § 3, cl. 2. This power is “absolute and undis-
puted.” Sere v. Pitot, 6 Cranch 332, 337 (1810). Congress
has “full and complete legislative authority over the people
of the Territories and all the departments of the territorial
governments.” National Bank v. County of Yankton, 101
U. S. 129, 133 (1880).
“No one has ever doubted the authority of congress to
erect territorial governments within the territory of the
United States, under the general language of the clause, `to
make all needful rules and regulations.' ” 3 J. Story, Com-
mentaries on the Constitution of the United States § 1319,
p. 195 (1833). These governments are “the creations, exclu-
sively, of [Congress], and subject to its supervision and con-
trol.” Benner v. Porter, 9 How. 235, 242 (1850).
1
1
The Court of Appeals attempted to draw a distinction between power
exercised pursuant to territorial laws enacted by Congress and power
exercised pursuant to territorial laws enacted by a territorial legisla-
ture. There is no meaningful distinction in this context. While the legis-
lature of the Territory may establish laws for the Territories, Article IV
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475
Thomas, J., concurring in judgment
Because territorial governments “are not organized under
the
Constitution,” they are not “subject to its complex distri-
bution of the powers of government.” Ibid. Congress may
give Territories “a legislative, an executive, and a judiciary,
with such powers as it has been their will to assign.” Sere,
6 Cranch, at 337. And, since the founding, Congress has
done so in ways that do not comport with the Constitution's
restrictions on the National Government. For example,
Congress has delegated Article IV legislative authority to
territorial offcials and legislatures,
2
which it could not do
remains the “ultimate source” of territorial power. Puerto Rico v. Sán-
chez Valle, 579 U. S. 59, 75 (2016) (internal quotation marks omitted).
Congress is the source of the “entire dominion and sovereignty” of a Terri-
tory, Simms v. Simms, 175 U. S. 162, 168 (1899), and therefore all territo-
rial laws, whether congressionally enacted or territorially enacted, derive
from Article IV, Sánchez Valle, 579 U. S., at 75 (recognizing that the “most
immediate source of [the] authority” does not change the nature of the
power exercised).
2
See, e. g., Act of Aug. 7, 1789, 1 Stat. 51, and n. (a) (Northwest Terri-
tory); Act of May 26, 1790, ch. 14, § 1, 1 Stat. 123 (Southwest Territory);
Act of Apr. 7, 1798, § 3, 1 Stat. 550 (Mississippi); Act of May 7, 1800, §§ 2,
4, 2 Stat. 59 (Indiana); Act of Mar. 26, 1804, § 4, 2 Stat. 284 (Louisiana);
Act of Jan. 11, 1805, ch. 5, § 2, 2 Stat. 309 (Michigan); Act of Mar. 2, 1805,
§§ 1, 2, 2 Stat. 322 (Orleans); Act of Feb. 3, 1809, §§ 2, 4, 2 Stat. 515 (Illi-
nois); Act of June 4, 1812, § 4, 2 Stat. 744 (Missouri); Act of Mar. 3, 1817,
§ 4, 3 Stat. 372 (Alabama); Act of Mar. 2, 1819, § 5, 3 Stat. 494 (Arkansas);
Act of Mar. 30, 1822, § 5, 3 Stat. 655 (Florida); Act of Mar. 3, 1823, § 5, 3
Stat. 751 (Florida); Act of Apr. 20, 1836, § 4, 5 Stat. 12 (Wisconsin); Act of
June 12, 1838, § 4, 5 Stat. 236 (Iowa); Act of Aug. 14, 1848, § 4, 9 Stat. 324
(Oregon); Act of Mar. 3, 1849, § 4, 9 Stat. 404 (Minnesota); Act of Sept. 9,
1850, § 5, 9 Stat. 448 (New Mexico); Act of Sept. 9, 1850, § 4, 9 Stat. 454
(Utah); Act of Mar. 2, 1853, § 4, 10 Stat. 173 (Washington); Act of May 30,
1854, §§ 4–6, 22–24, 10 Stat. 278–279, 284–285 (Nebraska and Kansas); Act
of Feb. 28, 1861, § 4, 12 Stat. 173 (Colorado); Act of Mar. 2, 1861, § 4, 12
Stat. 210–211 (Nevada); Act of Mar. 2, 1861, § 4, 12 Stat. 240 (Dakota); Act
of Feb. 24, 1863, ch. 56, § 2, 12 Stat. 665 (Arizona); Act of Mar. 3, 1863, § 4,
12 Stat. 809 (Idaho); Act of May 26, 1864, § 4, 13 Stat. 87 (Montana); Act
of July 25, 1868, § 4, 15 Stat. 179 (Wyoming); Act of May 2, 1890, § 4, 26
Stat. 83 (Oklahoma); Act of Apr. 12, 1900, § 27, 31 Stat. 82 (Puerto Rico);
Act of Apr. 30, 1900, § 12, 31 Stat. 144 (Hawaii); Act of July 1, 1902, § 7, 32
476 FIN
ANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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Thomas, J., concurring in judgment
with Article I legislative power. See Whitman v. American
Tr
ucking Assns., Inc., 531 U. S. 457, 472 (2001); Department
of Transportation v. Association of American Railroads,
575 U. S. 43, 67–88 (2015) (Thomas, J., concurring in judg-
ment). It has also established territorial courts that do not
comply with Article III. See Baude, Adjudication Outside
Article III, 133 Harv. L. Rev. 1511, 1525–1530 (2020) (analyz-
ing territorial courts in early Territories).
The powers vested in territorial governments are distinct
from the powers of the National Government. Territorial
legislatures exercise the legislative power of the Territory,
not Article I legislative power. Cincinnati Soap Co. v.
United States, 301 U. S. 308, 322–323 (1937). Territorial of-
fcials exercise the executive power of the Territory, not Ar-
ticle II executive power. Snow v. United States, 18 Wall.
317, 321–322 (1873). And territorial courts exercise the
judicial power of the Territory, not the “judicial power of the
United States” under Article III. American Ins. Co. v.
356 Bales of Cotton, 1 Pet. 511, 546 (1828); Clinton v. En-
glebrecht, 13 Wall. 434, 447 (1872).
B
Given the distinction between territorial and national pow-
ers, the question becomes whether offcers exercising Article
IV territorial power are offcers “of the United States” under
the original meaning of the Appointments Clause. They are
not. Both the text of the Appointments Clause and histori-
cal practice support this conclusion.
1
The text of the Appointments Clause indicates that “Off-
cers of the United States” refers to offcers exercising the
Stat. 693–694 (Philippines); Act of Aug. 24, 1912, § 4, 37 Stat. 513 (Alaska);
Act of June 22, 1936, § 5, 49 Stat. 1808 (Virgin Islands); Act of Aug. 1, 1950,
§ 10, 64 Stat. 387 (Guam).
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477
Thomas, J., concurring in judgment
powers of the National Government, not offcers exercising
terr
itorial power. The Clause applies to the appointment of
“Ambassadors, other public Ministers and Consuls, Judges of
the supreme Court, and all other Offcers of the United
States.” Art. II, § 2, cl. 2. Each of the offcers specifcally
mentioned in the Clause—“Ambassadors,” “public Minis-
ters,” “Consuls,” and “Judges of the supreme Court”—holds
an offce that exercises national power. Ibid. Although not
dispositive, this fact suggests that the phrase “and all other
Offcers of the United States” refers to “other” offcers of the
National Government. See Beecham v. United States, 511
U. S. 368, 371 (1994) (“That several items in a list share an
attribute counsels in favor of interpreting the other items
as possessing that attribute as well”); see also A. Scalia &
B. Garner, Reading Law: The Interpretation of Legal Texts
195–198 (2012) (discussing the “associated-words canon,” also
known as noscitur a sociis).
2
Historical evidence from the founding era confrms that
offcers exercising Article IV territorial power are not “Off-
cers of the United States.” The Court acknowledges some
of this evidence and surveys the history of appointments in
Puerto Rico. Ante, at 459–464. I, however, would give
more weight and focus to the practices of the First Congress,
which provide “powerful evidence of the original under-
standing of the Constitution.” Comptroller of Treasury of
Md. v. Wynne, 575 U. S. 542, 580 (2015) (Thomas, J., dissent-
ing) (compiling cases relying on the practices of the First
Congress to interpret the Constitution).
Before the Constitution's ratifcation, the Northwest Ordi-
nance of 1787 set up a territorial government for the North-
west Territory. Act of Aug. 7, 1789, 1 Stat. 51, n. (a) (repro-
ducing the Northwest Ordinance of 1787 enacted by the
Continental Congress). This ordinance granted Congress
the power to appoint the Northwest Territory's Governor,
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Thomas, J., concurring in judgment
secretary, judges, and general militia offcers. Ibid. And it
prov
ided the Governor the power to appoint “magistrates
and other civil offcers” of the Territory. Ibid.
In 1789, after the ratifcation of the Constitution, the First
Congress amended the Northwest Ordinance “to adapt [it]
to the present Constitution of the United States.” Id., at
51. One of these amendments provided that “the President
shall nominate, and by and with the advice and consent of
the Senate, shall appoint all offcers which by the said ordi-
nance were to have been appointed by the United States in
Congress assembled, and all offcers so appointed shall be
commissioned by him.” Id., at 53. The offcers not pre-
viously designated for congressional appointment, including
“magistrates and other civil offcers,” remained subject to
appointment by the Governor. Id., at 51, n. (a), and 53.
These amendments (and lack thereof ) provide strong evi-
dence that the First Congress understood the distinction
between territorial officers and officers of the Nati onal
Government.
As the Court recognizes, Congress revised the Northwest
Ordinance to require “a Presidential-appointment, Senate-
confrmation process for high-level territorial appointees
who assumed federal, as well as local, duties.” Ante, at 458
(emphasis added). For example, Congress revised the ap-
pointment process for the Governor of the Northwest Terri-
tory, who performed duties under the powers of the National
Government in addition to his Article IV territorial duties.
The Governor “discharg[ed] the duties of superintendent of
Indian affairs,” Act of Sept. 11, 1789, ch. 13, § 1, 1 Stat. 68,
which required him to execute congressional regulations,
manage trade with Indians, and obey instructions received
from the Secretary of War with respect to his duties as
superintendent. See Ordinance for the Regulation of Indian
Affairs (Aug. 7, 1786); see also F. Prucha, American Indian
Policy in the Formative Years: The Indian Trade and Inter-
course Acts 1790–1834, p. 36 (1962). The Governor negoti-
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Thomas, J., concurring in judgment
ated treaties with Indians on behalf of the United States.
See
2 The Papers of George Washington: Presidential Series
196–198 (D. Twohig ed. 1987); 33 Journals of the Continental
Congress, 1774–1789, p. 711 (R. Hill ed. 1936). He even had
the power to call on the militia of the States in the Presi-
dent's name to prevent “incursions of the hostile Indians.”
2 The St. Clair Papers 125 (W. Smith ed. 1882). Thus, at
least with respect to the Governor, who wielded powers of
the National Government, the First Congress appears to
have modifed the Northwest Ordinance to ensure its compli-
ance with the Appointments Clause.
In contrast, Congress did not revise the process for ap-
pointing “magistrates and other civil offcers,” who remained
subject to appointment by the Governor. 1 Stat. 51, n. (a),
and 53. The “magistrates and other civil offcers” of the
Northwest Territory included justices of the peace, clerks
of the court, sheriffs, coroners, surveyors, and notaries. 3
The Territorial Papers of the United States: The Territory
Northwest of the River Ohio, 1787–1803, pp. 304–307 (C. Car-
ter ed. 1934). If these offcials were exercising a statutory
duty under the powers of the National Government, they
would have certainly been considered “Offcers of the United
States” under the Appointments Clause. See Mascott 484–
507, 510–515. “The Founders considered individuals to be
offcers even if they performed only ministerial statutory
duties—including recordkeepers, clerks, and tidewaiters
(individuals who watched goods land at a customhouse).”
Lucia, 585 U. S., at 254 (Thomas, J., concurring). But “the
powers and duties of magistrates and other civil offcers
[were] regulated and defned by the [territorial] assembly,”
1 Stat. 51, n. (a), and therefore were necessarily exercised
pursuant to Article IV, see supra, at 474–476. It is evident
that the First Congress did not consider these offcials to be
“Offcers of the United States,” because it allowed appoint-
ment by an offcial who is not the “head of a department.”
See United States v. Germaine, 99 U. S. 508, 510 (1879).
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Thomas, J., concurring in judgment
One cannot plausibly conclude that the First Congress—
seek
ing to “adapt” the Northwest Ordinance to the Constitu-
tion, 1 Stat. 51—prescribed methods of appointing territorial
offcers that violated the Appointments Clause. Rather, the
First Congress recognized the distinction between territo-
rial and national powers, see supra, at 477–479, and under-
stood that offcers performing duties pursuant to only Article
IV territorial powers are not offcers “of the United States.”
For these reasons, I would hold that the original meaning of
the phrase “Offcers of the United States” does not include
territorial offcers exercising only powers conferred under
Article IV.
C
Under the original meaning of the Appointments Clause,
the Board's members are not “Offcers of the United States.”
They are territorial offcers exercising power granted under
Article IV.
The Board is “an entity within the territorial govern-
ment,” 48 U. S. C. § 2121(c)(1), created “pursuant to article
IV, section 3 of the Constitution of the United States,”
§ 2121(b)(2), and funded by the Territory, § 2127(b). The
members of the Board perform duties involving the over-
sight of Puerto Rico's fnances and fscal reform efforts,
§§ 2141–2152, and the representation of Puerto Rico in debt
restructuring proceedings, §§ 2161–2177. Because “they do
not exercise the national executive power,” “national judicial
power,” or national legislative power, the Board's members
are “Article IV executives,” not Offcers of the United States
under the Appointments Clause. See Freytag v. Commis-
sioner, 501 U. S. 868, 913 (1991) (Scalia, J., concurring in part
and concurring in judgment) (emphasis deleted).
The Court rightfully acknowledges the territorial nature of
the Board's duties. Ante, at 465–471. But in the process,
the Court sets up a dichotomy between offcers with “primar-
ily local versus primarily federal” duties. Ante, at 468 (em-
phasis deleted). I cannot agree with this amorphous test.
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As an initial matter, the Court need not decide whether
an
offcer exercising both national and Article IV powers
qualifes as an “Offcer of the United States.” The Board's
members have responsibility for ongoing statutory duties
that are entirely within the scope of Article IV. See ante,
at 465–471.
Resolving this unnecessary issue is especially problematic
because the original meaning of the phrase “Offcers of the
United States” arguably includes all offcers exercising the
powers of the National Government, even if those offcers
also exercise power vested under Article IV. The Governor
of the Northwest Territory, for example, seems to have per-
formed “primarily local” duties, yet the First Congress be-
lieved the Governor was an “Offcer of the United States”
subject to the restrictions of the Appointments Clause.
Supra, at 478–479; see also ante, at 458–459.
The Court fails to engage with this point. Indeed, it fails
to provide any foundation at all for its “primarily local” rule.
The only analysis to be found is a conclusory statement that
Palmore v. United States, 411 U. S. 389 (1973), “provides a
rough analogy.” Ante, at 469. But drawing a rule from a
case that is “no[t] . . . directly on point,” ibid., without even
analyzing the underlying reasoning of that case, is not sound
constitutional interpretation. And favoring a tangentially
related decision from 1973 over the practices of the First
Congress is certainly not “more faithful to the [Appoint-
ments] Clause's original meaning,” ante, at 471.
Finally, the Court fails to provide any explanation for what
makes an offcer's duties “primarily local.” Ante, at 465–471.
Is it the relative importance of the duties? Or is it the num-
ber of duties exercised pursuant to each power? And what
ratio is required for duties to be primarily local? The
Court's opinion has no answers and does not even acknowl-
edge the questions. And, regardless of how these questions
are resolved, the primarily local test allows Congress to
evade the requirements of the Appointments Clause by sup-
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plementing an offcer's federal duties with suffcient territo-
r
ial duties, such that they become “primarily local,” what-
ever that means.
***
Today's decision reaches the right outcome, but it does so
in a roundabout way that departs from the original meaning
of the Appointments Clause. I would hold that the Board's
members are not “Offcers of the United States” because
they perform ongoing statutory duties under only Article IV.
I therefore cannot join the Court's opinion and concur only
in the judgment.
Justice Sotomayor, concurring in the judgment.
Nearly 60 years ago, the people of Puerto Rico “em-
bark[ed] on [a] project of constitutional self-governance”
after entering into a compact with the Federal Government.
Puerto Rico v. Sánchez Valle, 579 U. S. 59, 64 (2016). At
the conclusion of that endeavor, the people of Puerto Rico
established, and the United States Congress recognized, a
“republican form of government” “pursuant to a constitution
of [the Puerto Rican population's] own adoption.” Act of
July 3, 1950, ch. 446, §§ 1, 2, 64 Stat. 319; see also Act of July
3, 1952, 66 Stat. 327. One would think the Puerto Rican
home rule that resulted from that mutual enterprise might
affect whether offcers later installed by the Federal Govern-
ment are properly considered offcers of Puerto Rico rather
than “Offcers of the United States” subject to the Appoint-
ments Clause. U. S. Const., Art. II, § 2, cl. 2. Yet the par-
ties do not address that weighty issue or any attendant ques-
tions it raises. I thus do not resolve those matters here and
instead concur in the judgment.
I nevertheless write to explain why these unexplored is-
sues may well call into doubt the Court's conclusion that the
members of the Financial Oversight and Management Board
for Puerto Rico are territorial offcers not subject to the “sig-
nifcant structural safeguards” embodied in the Appoint-
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Sotomayor, J., concurring in judgment
ments Clause. Edmond v. United States, 520 U. S. 651, 659
(1997).
Puerto Rico's compact with the Federal Govern-
ment and its republican form of government may not alter
its status as a Territory. But territorial status should not
be wielded as a talismanic opt out of prior congressional com-
mitments or constitutional constraints.
I
A
Puerto Rico became a Territory of the United States in
1898, pursuant to a treaty concluding the Spanish-American
War. After a series of temporary military governing meas-
ures, Congress passed the Foraker Act of 1900, establishing
a civil government exercising signifcant authority over
Puerto Rico's internal territorial affairs. Organic Act of
1900, ch. 191, 31 Stat. 77. Over time, Congress put in place
incremental measures of autonomy, such as by granting U. S.
citizenship to the island's inhabitants in 1917 and providing
for the popular election of certain territorial offcials the
same year. See Sánchez Valle, 579 U. S., at 63–64; Organic
Act of 1917, ch. 145, 39 Stat. 951. Yet throughout the early
years of Puerto Rico's territorial status, “Congress retained
major elements of sovereignty,” and “[i]n cases of confict,
Congressional statute, not Puerto Rico law, would apply no
matter how local the subject.” Cordova & Simonpietri Ins.
Agency Inc. v. Chase Manhattan Bank N. A., 649 F. 2d 36,
39 (CA1 1981) (Breyer, J., for the court).
By 1950, however, international and local “pressures for
greater autonomy,” Calero-Toledo v. Pearson Yacht Leasing
Co., 416 U. S. 663, 671 (1974), prompted Congress to pass
Public Law 600, 64 Stat. 319, a measure “enabl[ing] Puerto
Rico to embark on the project of constitutional self-
governance,” Sánchez Valle, 579 U. S., at 64. “ `[R]ecogniz-
ing ' ” and “affrm[ing] the `principle of government by con-
sent,' ” Public Law 600 “offered the Puerto Rican public a
`compact,' under which they could `organize a government
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pursuant to a constitution of their own adoption.' ” Id., at
64,
76 (quoting Act of July 3, 1950, § 1, 64 Stat. 319); see also
579 U. S., at 64 (Public Law 600 “[d]escrib[ed] itself as `in the
nature of a compact' ” (quoting § 1, 64 Stat. 319)). Under the
terms of the compact, Public Law 600 itself was submitted
to the people of Puerto Rico, who voted to approve the law
through a popular referendum. See Leibowitz, The Appli-
cability of Federal Law to the Commonwealth of Puerto Rico,
56 Geo. L. J. 219, 222–223 (1967). Delegates were then elected
to a constitutional convention to draft a constitution, and in a
special referendum, the draft constitution was submitted to
the people of Puerto Rico for approval. Id., at 223.
In 1952, “both Puerto Rico and the United States ratifed
Puer to Rico's Constituti on. ” Sánchez Valle, 579 U. S.,
at 87 (Breyer, J., dissenting). The people of Puerto Rico
frst approved the draft Constitution in a referendum. Con-
gress then approved the draft Constitution with modifca-
tions, noting the caveat that it “shall become effective” only
when Puerto Rico “declare[s] in a formal resolution its ac-
ceptance. ” 66 Stat. 327– 328. Finally, the constitutional
convention approved the modifed Constitution, and the peo-
ple of Puerto Rico subsequently ratifed modifcations in an-
other referendum. Thus, although the terms of the compact
provided for Congress' approval, “when such constitution did
go into effect pursuant to the resolution of approval by the
Congress, it became what the Congress called it, a `constitu-
tion' under which the people of Puerto Rico organized a gov-
ernment of their own adoption.” Figueroa v. Puerto Rico,
232 F. 2d 615, 620 (CA1 1956) (citation omitted). “The Com-
monwealth's power, the [Puerto Rico] Constitution pro-
claims, `emanates from the people and shall be exercised in
accordance with their will, within the terms of the compact
agreed upon between the people of Puerto Rico and the
United States.' ” Sánchez Valle, 579 U. S., at 65.
With the passage of Public Law 600 and the adoption and
recognition of the Puerto Rico Constitution, “the United
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States and Puerto Rico . . . forged a unique political relation-
sh
ip, built on the island's evolution into a constitutional de-
mocracy exercising local self-rule.” Id., at 63; cf. Calero-
Toledo, 416 U. S., at 672 (noting with approval the view that,
after Public Law 600, Puerto Rico became “a political entity
created by the act and with the consent of the people of
Puerto Rico and joined in union with the United States of
America under the terms of the compact” (quoting Mora v.
Mejias, 206 F. 2d 377, 387 (CA1 1953))).
Of critical import here, the Federal Government “relin-
quished its control over [Puerto Rico's] local affairs[,] grant-
[ing] Puerto Rico a measure of autonomy comparable to that
possessed by the States.” Examining Bd. of Engineers,
Architects and Surveyors v. Flores de Otero, 426 U. S. 572, 597
(1976). Indeed, the very “purpose of Congress in the 1950
and 1952 legislation was to accord to Puerto Rico the degree
of autonomy and independence normally associated with
States of the Union.” Id., at 594; see also S. Rep. No. 1779,
81st Cong., 2d Sess., 2 (1950) (Public Law 600 was “designed
to complete the full measure of local self-government in”
Puerto Rico); H. R. Rep. No. 2275, 81st Cong., 2d Sess., 6
(1950) (Public Law 600 was a “reaffrmation by the Congress
of the self-government principle”).
1
The upshot is that
“Puerto Rico, like a State, is an autonomous political entity,
` “sovereign over matters not ruled by the [Federal] Consti-
tution.” ' ” Rodriguez v. Popular Democratic Party, 457
U. S. 1, 8 (1982) (quoting Calero-Toledo, 416 U. S., at 673).
And only by holding out that guarantee to the United Na-
tions has the Federal Government been able to disclaim cer-
tain continuing obligations it previously owed with respect
1
To be sure, Public Law 600 reserved certain limited powers to Con-
gress (some of which were soon repealed). See ante, at 463. But those
narrow reservations of federal control did not purport to diminish the full
measure of territorial self-governance conferred upon the people of Puerto
Rico through Public Law 600 and the Puerto Rico Constitution. See 39
Stat. 953; 64 Stat. 319–320.
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to Puerto Rico under the United Nations Charter. See
in
fra, at 491–492.
B
In the decades that followed, Puerto Rico underwent fur-
ther changes as a Commonwealth. For many years, the
island experienced dynamic growth, increasing its gross
national product more than fourfold from 1950 to 1971.
Cheatham, Council on Foreign Relations, Puerto Rico: A
U. S. Territory in Crisis (Feb. 13, 2020). In 1976, after the
revised Federal Tax Code conferred preferential tax treat-
ment on productive industries in Puerto Rico, Puerto Rico
developed robust pharmaceutical and manufacturing sectors.
Issacharoff, Bursak, Rennie, & Webley, What Is Puerto Rico?
94 Ind. L. J. 1, 27 (2019).
Eventually, however, the island and its people confronted
severa l economic setbacks. Congress repea led Puer to
Rico's favorable tax credits, and manufacturing growth de-
fated, precipitating a prolonged recession. Steady outmi-
gration correlated with persistently high unemployment
rates greater than 8 percent. Dept. of Labor, Bureau of
Labor Statistics, Databases, Tables & Calculators by Subject
(May 28, 2020). Deprived of its primary sources of income,
the Commonwealth began borrowing heavily. The island's
outstanding debts rose to approximately $70 billion, a sum
greater than its annual economic output. Puerto Rico's
credit ratings were downgraded to junk levels, D. Austin,
Congressional Research Service, Puerto Rico's Current Fis-
cal Challenges 4, 13 (June 3, 2016), rendering borrowing
practically impossible. Without any realistic ability to set
its fnances on the right course, the island declared bank-
ruptcy in 2016.
Months later, Hurricane Maria made landfall, causing im-
mense devastation and a humanitarian emergency the likes
of which had not been seen in over a century. The island
suffered thousands of casualties and an estimated $90 billion
in damages. Most recently, signifcant earthquakes have
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Sotomayor, J., concurring in judgment
further rattled an already shaken population and economy
sti
ll recovering from the impact of Hurricane Maria. Ro-
bles, Months After Puerto Rico Earthquakes, Thousands Are
Still Living Outside, N. Y. Times, Mar. 1, 2020.
C
Congress passed the Puerto Rico Oversight, Management,
and Economic Stability Act (PROMESA), 130 Stat. 549, 48
U. S. C. § 2101 et seq., in the midst of Puerto Rico's dramatic
reversal of fortune, with the aim of mitigating the island's
“severe economic decline,” see 48 U. S. C. § 2194(m)(1). To
that end, the statute establishes a Financial Oversight and
Management Board to oversee the island's fnances and re-
structure its debts. See ante, at 454; Issacharoff, 94 Ind.
L. J., at 30–31.
The Board's decisions have affected the island's entire pop-
ulation, particularly many of its most vulnerable citizens.
The Board has ordered pensions to be reduced by as much
as 8.5 percent, a measure that threatens the sole source of
income for thousands of Puerto Rico's poor and elderly.
Walsh & Russell, $129 Billion Puerto Rico Bankruptcy Plan
Could Be Model for States, N. Y. Times, Sept. 29, 2019.
Other proposed cuts take aim at already depleted healthcare
and educational services. It is under the yoke of such aus-
terity measures that the island's 3.2 million citizens now
chafe.
PROMESA does not provide for the appointment of Board
members according to the straightforward methods set out
in the Appointments Clause. U. S. Const., Art. II, § 2, cl. 2
(requiring principal “Offcers of the United States” to be
nominated by the President, with Senate advice and con-
sent). Instead, the statute prescribes a labyrinthine proce-
dure by which the Speaker of the House, majority leader of
the Senate, minority leader of the House, and minority leader
of the Senate each submit to the President separate lists
with any number of candidates; and the President, in turn,
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selects individuals from each of those lists, plus an individual
i
n his sole discretion. See § 101(e), 130 Stat. 554–555.
2
With only one exception, then, the President is not “singly
and absolutely” responsible for any members of the Board.
The Federalist No. 77, p. 461 (C. Rossiter ed. 1961) (A. Hamil-
ton) (Appointments Clause ensures that “[t]he blame of a bad
nomination . . . fall[s] upon the President singly and abso-
lutely”). And with no exceptions, the Senate fails to advise
or consent to the President's selections.
Despite the Board's wide-ranging, veto-free authority over
Puerto Rico, the solitary role PROMESA contemplates for
Puerto Rican-selected offcials is this: The Governor of
Puerto Rico sits as an ex offcio Board member without any
voting rights. § 101(e)(3), 130 Stat. 555. No individual
within Puerto Rico's government plays any part in determin-
ing which seven members now decide matters critical to the
island's fnancial fate.
II
A
In concluding that the Board members are territorial offi-
cers not subject to the strictures of the Appointments Clause,
the Court does not meaningfully address Puerto Rico's his-
tory or status. Nor need it, as the parties do not discuss
the potential consequences that Congress' recognition of
2
Specifcally, PROMESA provides that “[t]he Board shall be comprised
of one Category A member, one Category B member, two Category C
members, one Category D member, one Category E member, and one
Category F member.” § 101(e)(1)(B), 130 Stat. 554. The Speaker of the
House submits “separate, non-overlapping list[s]” for the Category A and
Category B members, the majority leader for the Senate submits a list for
the two Category C members, the minority leader of the House submits a
list for the Category D member, and the minority leader of the Senate
submits a list for the Category E member. § 101(e)(2)(A), id., at 554–555.
Finally, “the Category F member may be selected in the President's sole
discretion.” § 101(e)(2)(A)(vi), id., at 555. Many other conditions apply
to the lists submitted and the individuals who may appear on them. See
generally §§ 101(e)–(f ), id., at 554–556.
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complete self-government decades ago may have on the Ap-
poi
ntments Clause analysis. But in my view, however one
disti ng uishes terr itor ia l officers from federa l officers
(whether under the Court's “primarily local” test, ante, at
467, or some other standard), the longstanding compact be-
tween the Federal Government and Puerto Rico raises grave
doubts as to whether the Board members are territorial off-
cers not subject to the Appointments Clause. When Puerto
Rico and Congress entered into a compact and ratifed a con-
stitution of Puerto Rico's adoption, Congress explicitly left
the authority to choose Puerto Rico's governmental offcers
to the people of Puerto Rico. That turn of events seems to
give to Puerto Rico, through a voluntary concession by the
Federal Government, the exclusive right to establish Puerto
Rico's own territorial offcers.
No less than the bedrock principles of government upon
which this Nation was founded ground this proposition.
When the Framers resolved to build this Nation on a republi-
can form of government, they understood that the American
people would have the authority to select their own govern-
mental offcers. See, e. g., The Federalist No. 39, at 241
(J. Madison) (“[W]e may defne a republic to be . . . a govern-
ment which derives all its powers directly or indirectly from
the great body of the people”); A. Amar, America's Constitu-
tion: A Biography 278–279 (2005) (“[T]he general under-
standing of republicanism across America” at the founding
embraced a concept of government “in which `the people are
sovereign'; in which `the people are consequently the foun-
tain of all power'; in which `all authority should fow from
the people' ”). Core to the 1950s “compact” between the
Federal Government and Puerto Rico was that Puerto Rico's
eventual constitution “shall provide a republican form of gov-
ernment.” § 2, 64 Stat. 319 (codifed in 48 U. S. C. § 731c).
Thus, “resonant of Amer ican founding pr i nciples, ” the
Puerto Rico Constitution set forth a tripartite government
“ `republican in form' and `subordinate to the sovereignty of
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the people of Puerto Rico.' ” Sánchez Valle, 579 U. S., at 65
(
quoting P. R. Const., Art. I, § 2); see also Torres v. Puerto
Rico, 442 U. S. 465, 470 (1979). “[T]he distinguishing fea-
ture” of such “republican form of government,” this Court
has recognized over and again, “is the right of the people to
choose their own offcers for governmental administration,
and pass their own laws in virtue of the legislative power
reposed in representative bodies, whose legitimate acts may
be said to be those of the people themselves.” In re Dun-
can, 139 U. S. 449, 461 (1891) (discussing the republican gov-
ernments of the States); see also Pacifc States Telephone &
Telegraph Co. v. Oregon, 223 U. S. 118, 149 (1912) (same).
Thus, whatever authority the Federal Government exer-
cised to select territorial offcers for Puerto Rico before Con-
gress recognized Puerto Rico's republican form of govern-
ment, the authority “to choose [Puerto Rico's] own offcers
for governmental administration” now seems to belong to
the people of Puerto Rico. Duncan, 139 U. S., at 461. In-
deed, however directly responsible the Federal Government
was for Puerto Rico's local affairs before Public Law 600,
those matters might be said to “now procee[d]” in the frst
instance “from the Puerto Rico Constitution as `ordain[ed]
and establish[ed]' by `the people.' ” Cf. Sánchez Valle, 579
U. S., at 75 (quoting P. R. Const., Preamble) (acknowledging
“that the Commonwealth's power to enact and enforce crimi-
nal law now proceeds . . . from the Puerto Rico Constitution,”
“mak[ing] the Puerto Rican populace . . . the most immediate
source of such authority”).
The developments of the early 1950s were not merely sym-
bolic either; this Court has recognized that the paradigm
shift in relations between Puerto Rico and the Federal Gov-
ernment carried legal consequences. In Calero-Toledo, for
instance, this Court held that the “enactments of the Com-
monwealth of Puerto Rico” were “ `State statute[s]' ” within
the meaning of a federal law requiring a three-judge court
panel to consider any action seeking to enjoin a “ `State stat-
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ute.' ” 416 U. S., at 675–676. The Court reasoned that
Puer
to Rico was entitled to similar treatment as the States
under the federal law, due to “signifcant changes in Puerto
Rico's governmental structure” in the early 1950s. See id.,
at 670–674. For similar reasons, this Court has recognized
on multiple other occasions that Puerto Rico is akin to a
State in key respects. See, e. g., Flores de Otero, 426 U. S.,
at 597 (Congress granted Puerto Rico “a measure of auton-
omy comparable to that possessed by the States”); Rodri-
guez, 457 U. S., at 8 (“Puerto Rico, like a state, is an autono-
mous political entity”); see also Sánchez Valle, 579 U. S., at
82 (Breyer, J., dissenting) (“[T]he parallels between admis-
sion of new States and the creation of the Commonwealth [of
Puerto Rico] are signifcant”).
The compact also had international ramifcations, as the
Federal Government repeatedly represented at the time.
Shortly after the ratifcation and approval of the Puerto Rico
Constitution, federal offcials certifed to the United Nations
that, for Puerto Rico, the United States no longer needed to
comply with certain reporting obligations under the United
Nations Charter regarding territories “whose peoples have
not yet attained a full measure of self-government.” Char-
ter of the United Nations, 59 Stat. 1048, Art. 73, June 26,
1945, T. S. No. 993 (U. N. Charter). According to federal
offcials, that was because the people of Puerto Rico now had
“complete autonomy in internal economic matters and in cul-
tural and social affairs under a Constitution adopted by them
and approved by the Congress.” Memorandum by the Gov-
ernment of the United States of America Concerning the
Cessation of Transmission of Information Under Article 73(e)
of the Charter With Regard to the Commonwealth of Puerto
Rico, in A. Fernós-Isern, Original Intent in the Constitution
of Puerto Rico 153 (2d ed. 2002). To the extent federal law
had previously “directed or authorized interference with
matters of local government by the Federal Government,”
federal offcials elaborated, “[t]hose laws . . . ha[d] been re-
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pealed.” Ibid.; see also ibid. (“Congress has agreed that
Puer
to Rico shall have, under [the Puerto Rico] Constitution,
freedom from control or interference by the Congress in re-
spect of internal government and administration”).
Based on those explicit representations, the United Na-
tions General Assembly declared that the people of Puerto
Rico “ha[d] been invested with attributes of political sover-
eignty which clearly identify the status of self-government
attained . . . as that of an autonomous political entity.” G. A.
Res. 748, U. N. GAOR, 8th Sess., Supp. No. 17, U. N. Doc. A /
2630 (Nov. 27, 1953). And consistent with that declaration,
the Federal Government promptly stopped complying with
the Charter's reporting obligations with respect to Puerto
Rico (and has never since recommenced). Thus, in the eyes
of the international community looking in, as well as of the
Federal Government looking out, Puerto Rico has long en-
joyed autonomous reign over its internal affairs. Indeed,
were the Federa l Gover nment's representati ons to the
United Nations merely aspirational, the United States' com-
pliance with its international legal obligations would be in
substantial doubt. See Lawson & Sloane, The Constitution-
ality of Decolonization by Associated Statehood: Puerto
Rico's Legal Status Reconsidered, 50 Boston College L. Rev.
1123, 1127 (2009) (arguing that if Puerto Rico remains “just
another territory subject to Congress's plenary power under
the Territories Clause,” “the United States . . . is in violation
of its international legal obligations vis-à-vis Puerto Rico”).
There can be little question, then, that the compact altered
the relati onsh ip between the Federa l Gover nment and
Puerto Rico. At a minimum, the post-compact develop-
ments, including this Court's precedents, indicate that Con-
gress placed in the hands of the Puerto Rican people the
authority to establish their own government, replete with
offcers of their own choosing, and that this grant of self-
gover nment was not an empty promise. That h istory
prompts serious questions as to whether the Board members
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may be territorial offcers of Puerto Rico when they are not
elec
ted or approved, directly or indirectly, by the people of
Puerto Rico.
B
Of course, it might be argued that Congress is neverthe-
less free to repeal its grant of self-rule, including the grant
of authority to the island to select its own governmental of-
fcers. And perhaps, it might further be said, that is exactly
what Congress has done in PROMESA by declaring the
Board “an entity within the territorial government” of
Puerto Rico. § 101(c)(1), 130 Stat. 553. But that is not so
certain.
This Court has “ `repeatedly stated . . . that absent “a
clearly expressed congressional intention” ' ” to repeal, “ `[a]n
implied repeal will only be found where provisions in two
statutes are in “irreconcilable confict,” or where the latter
Act covers the whole subject of the earlier one and “is clearly
intended as a substitute.” ' ” Carcieri v. Salazar, 555 U. S.
379, 395 (2009) (quoting Branch v. Smith, 538 U. S. 254,
273 (2003) (plura l ity opi ni on)). Not so, it seems, w ith
PROMESA on the one hand, and Congress' 1950 and 1952
legislations on the other. As written, PROMESA is a tem-
porary bankruptcy measure intended to assist in restoring
Puerto Rico to fscal security. It is not an organic statute
clearly or expressly purporting to renege on Congress' prior
“gran[t to] Puerto Rico [of] a measure of autonomy compara-
ble to that possessed by the States,” Flores de Otero, 426
U. S., at 597, nor on the concomitant grant of authority to
select offcers of its own choosing. It would seem curious to
interpret PROMESA as having done so indirectly, simply
through its characterization of the Board “as an entity within
the territorial government.” § 101(c)(1), 130 Stat. 553.
Further, there is a legitimate question whether Congress
could validly repeal any element of its earlier compact with
Puerto Rico on its own initiative, even if it had been abun-
dantly explicit in its intention to do so. The truism that
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“one Congress cannot bind a later Congress,” Dorsey v.
U
nited States, 567 U. S. 260, 274 (2012), appears to have its
limits: As scholars have noted, certain congressional actions
are not subject to recantation. See, e. g., Magruder, The
Commonwealth Status of Puerto Rico, 15 U. Pitt. L. Rev.
1, 14 (1953) (listing as examples the congressional grant of
independence to the Philippine Islands and congressional
grant of private title to public lands under homestead laws);
Issacharoff, 94 Ind. L. J., at 14 (“Once a Congress has dis-
posed of a territory, of necessity it binds future Congresses
to the consequences of that decision”); T. Aleinikoff, Sem-
blances of Sovereignty: The Constitution, the State, and
American Citizenship 90 (2002) (“The granting of neither
statehood nor independence may be revoked, nor may land
grants or other `vested interests' be called back by a subse-
quent Congress”).
Plausible reasons may exist to treat Public Law 600 and
the Federal Government's recognition of Puerto Rico's sover-
eignty as similarly irrevocable, at least in the absence of mu-
tual consent. Congress made clear in Public Law 600 that
the agreement between the Federal Government and Puerto
Rico was “in the nature of a compact.” 64 Stat. 319. That
“solemn undertaking, based upon mutual consent, . . . of such
profound character between the Federal Government and a
community of U. S. citizens,” has struck many as “incompati-
ble with the concept of unilateral revocation.” E. g., Report
of the United States-Puerto Rico Commission on the Status
of Puerto Rico 12–13 (1966); see also A. Leibowitz, Defning
Status: A Comprehensive Analysis of United States Territo-
rial Relations 172–173 (1989) (describing how “many in the
Congress” understood Public Law 600 to constitute “an ir-
revocable grant of authority in local affairs with an under-
standing of mutual consent being required before Congress
would resolve the ultimate status question or change the sta-
tus of the Commonwealth”). Indeed, shortly after Congress
approved the Puerto Rico Constitution, federal offcials ex-
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pressly represented to the United Nations that the compact
was
of a “bilateral nature,” such that its “terms [could]
be changed only by common consent.” F. Bolton, U. S. Rep.
to the Gen. Assembly, Statement to U. N. Committee IV
(Trusteeship) (Nov. 3, 1953), reprinted in 29 Dept. State Bull.
802, 804 (1953); see also Press Release No. 1741, U. S. Mission
to the United Nations, Statement by M. Sears, U. S. Rep. in
the Comm. on Information From Non-Self Governing Terri-
tories 2 (Aug. 28, 1953) (“[A] compact . . . is far stronger than
a treaty” because it “cannot be denounced by either party
unless it has the permission of the other”).
3
All of this presses up against broader questions about Con-
gress' power under the Territories Clause of Article IV, U. S.
Const., Art. IV, § 3, cl. 2, the purported source of legislative
authority for enacting PROMESA, see § 101(b)(2), 130 Stat.
553; ante, at 456. May Congress ever simply cede its power
under that Clause to legislate for the Territories, and did it
3
In opting to proceed with Puerto Rico's Commonwealth endeavor by
way of compact, Public Law 600 was not entirely without precedent.
When Congress enacted the Northwest Ordinance prior to ratifcation to
govern the newly acquired Northwest Territory, it provided for a catalog
of fundamental rights, styled as “articles of compact between the original
States . . . and the people and States in the said territory” that would
“forever remain unalterable, unless by common consent.” Act of Aug. 7,
1789, 1 Stat. 52, n. (a) (reproducing the Northwest Ordinance of 1787).
That understanding of a compact between the Federal Government and
the Territories was the only extant precedent for the compact language in
Public Law 600, and proponents of Public Law 600 were vocal in their
reliance on the Northwest Ordinance as a model. See Lawson & Sloane,
The Constitutionality of Decolonization by Associated Statehood: Puerto
Rico's Legal Status Reconsidered, 50 Boston College L. Rev. 1123, 1149,
n. 142 (2009) (prior to Public Law 600, “[t]he term `compact' . . . had seldom
appeared in U. S. law,” with the exception of the Northwest Ordinance
and subsequent organic statutes modeled after the Northwest Ordinance);
J. Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the
World 111 (1997) (discussing debate among the drafters of Public Law 600
about whether to adopt the precise compact language in the Northwest
Ordinance).
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do so nearly 60 years ago with respect to Puerto Rico? If
so
, is PROMESA itself invalid, at least insofar as it holds
itself out as an exercise of Territories Clause authority?
This Court has never squarely addressed such questions, ex-
cept perhaps to acknowledge that Congress' authority under
the Territories Clause may “continu[e] until granted away.”
National Bank v. County of Yankton, 101 U. S. 129, 133
(1880); cf. Cincinnati Soap Co. v. United States, 301 U. S.
308, 319 (1937) (recognizing that a statute preparing the
Philippine Islands for independence from the United States
“brought about a profound change in the status of the islands
and in their relations to the United States,” such that “the
power of the United States has been modifed,” even while
“it has not been abolished”).
After all, the Territories Clause provides Congress not
only the power to “make all needful Rules and Regulations
respecting the Territor[ies],” but also the power to “dispose
of ” them, which necessarily encompasses the power to relin-
quish authority to legislate for them. U. S. Const., Art. IV,
§ 3, cl. 2. And some have insisted that the power to cede
authority exists no less in the absence of full “dispos[al]”
through independence or Statehood. See Aleinikoff, Sem-
blances of Sovereignty, at 77 (“It has been strongly argued
that” with “the establishment of commonwealth status,”
“Congress lost general power to regulate the internal affairs
of Puerto Rico”).
Still, the parties here do not dispute Congress' ability to
enact PROMESA under the Territories Clause in the frst
place; nor does it seem strictly necessary to call that mat-
ter into question to resolve the Appointments Clause con-
cern presented here. Despite the “full measure of self-
government” the island supposedly enjoys, U. N. Charter,
Art. 73; see also supra, at 485–486, 489–493, Puerto Rico can
well remain a “Territory” subject to some measure of Con-
gress' Territories Clause authority. But even assuming that
the Territories Clause thus enables Congress to enact federal
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laws “respecting ” Puerto Rico, U. S. Const., Art. IV, § 3, cl. 2,
sti
ll some things the Clause does not necessarily do: It does
not necessarily allow Congress to repeal by mere implication
its prior grant of authority to the people of Puerto Rico to
choose their own governmental offcers. It does not neces-
sarily give Congress license to revoke unilaterally an instru-
ment that may be altered only with mutual consent. And it
does not necessarily permit Congress to declare by fat that
the law must treat its exercise of authority under the Terri-
tories Clause as territorial rather than federal, irrespective
of the compact it entered with the people of Puerto Rico
leaving complete territorial authority to them. Cf. Hernán-
dez Colón, The Evolution of Democratic Governance Under
the Territorial Clause of the U. S. Constitution, 50 Suffolk
U. L. Rev. 587, 605 (2017) (after 1952, “Congress partially
relinquished its territorial powers over Puerto Rico's inter-
nal affairs, as recognized in Sanchez Valle,” even while
“Congress continues to retain territorial powers in federal
affairs” (emphasis added)).
III
Nor is it signifcant that Congress has historically pro-
vided for the appointment of offcers who perform duties re-
lated to the Territories through methods other than those
prescribed by the Appointments Clause. Those methods
may be permissible up to a point in a Territory's develop-
ment. But that historical practice does not, in my view, re-
solve the far more complex question whether Congress can
continue to act in that manner indefnitely or long after
granting Territories complete self-government.
Essentially none (if any) of the allegedly nonconforming
appointments referenced by the parties occurred in circum-
stances where, as in the case of Puerto Rico, Congress pre-
viously granted the Territories complete home rule. See
infra, at 499–501, and nn. 4–5. Instead, they largely occurred
during the initial or transitional stages of a Territory's exist-
ence, when often the terms of the organic statute establish-
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ing the Territory expressly provided for the Federal Govern-
ment
to act on behalf of the Territory. (After all, in newly
established Territories, no recognized territorial govern-
ment existed until the organic statute established one.) Be-
cause in that state of affairs, an organic statute plainly con-
templated that Congress had authority to establish offces for
the Territory, such congressionally established offces could
fairly—indeed, necessarily—be treated as “territorial” to the
extent they were tasked with territorial duties.
Does that necessarily remain the case if Congress later
grants or establishes complete territorial self-government?
As Puerto Rico's history may demonstrate, it is seemingly
at that point that Congress purports to recognize that the
Territory itself (not the Federal Government) wields author-
ity over matters of the Territory, including the ability to se-
lect its own territorial offcers. Perhaps it is also at that
point that a distinction between territorial offcers and fed-
eral offcers crystallizes: Territorial offcers are those who
derive their authority from the people of the Territory; fed-
eral offcers are those who derive their authority from the
Federal Government. And here, the Board members indis-
putably are selected by the Federal Government, under a
statute passed by Congress that specifes not just their gov-
ernance responsibilities but also the priorities of their deci-
sionmaking. See ante, at 453–455.
The scores of historical vignettes highlighted by petition-
ers, see, e. g., Brief for Petitioner Financial Oversight and
Management Board for Puerto Rico 28–33; Brief for Peti-
tioner Offcial Committee of Retired Employees of the Com-
monwealth of Puerto Rico 10–17, do not appear to foreclose
this possibility or even address the question. Rather, they
seem consistent with a broader historical narrative about
early territorial development: that Congress has tradition-
ally exercised its power under the Territories Clause with
the aim of promptly preparing newly established Territories
to transition gradually to territorial self-government. To
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the extent Congress deviated from the requirements of the
A
ppointments Clause in establishing territorial govern-
ments, it generally did so either to facilitate temporary gov-
ernments in the Territories before self-government was
practically possible or to begin transferring appointment au-
thority directly into the hands of the territorial population.
For example, Congress has often provided for territorial
offcials to be appointed by a (Presidentially nominated and
Senate confrmed) territorial Governor, a method that the
Appointments Clause does not appear to contemplate. See,
e. g., Brief for Petitioner Financial Oversight and Manage-
ment Board for Puerto Rico 31, and n. 13. But those ar-
rangements arose from the organic statutes establishing the
Territories (and thus their initial territorial governments) in
the frst place.
4
The same is generally true of instances
where Congress provided for Presidentia l appointment
(without Senate confrmation) of territorial offcials whose
duties might otherwise make them principal offcers under
the Appointments Clause (requiring Senate confrmation).
See, e. g., Brief for Petitioner Offcial Committee of Retired
Employees of the Commonwealth of Puerto Rico 11. Those
scenarios broadly conformed with the template of the organic
statute establishing the Louisiana Territory, 2 Stat. 245,
wh ich Congress passed as an “emergency prov isi o[n] ”
shortly after territorial acquisition in order “to preserve
order until a proper government could be put in place,”
D. Currie, The Constitution in Congress, The Jeffersonians:
1801–1829, p. 112 (2001).
5
4
See, e. g., 1 Stat. 51–52, and n. (a) (1789) (Northwest Territory); Act of
Feb. 3, 1809, ch. 13, §§ 1, 2, 2 Stat. 514–515 (Illinois); Act of June 4, 1812,
§ 2, 2 Stat. 744 (Missouri); Act of Feb. 8, 1861, ch. 59, §§ 1, 7, 12 Stat. 172,
174 (Colorado); Act of May 26, 1864, ch. 95, §§ 1, 7, 13 Stat. 85, 88 (Mon-
tana); Act of July 25, 1868, ch. 235, §§ 1, 7, 15 Stat. 178, 180 (Wyoming);
Act of May 2, 1890, ch. 182, §§ 1, 7, 26 Stat. 81, 85 (Oklahoma).
5
See 2 Stat. 245 (1803) (Louisiana) (authorizing the President to “take
possession of, and occupy the territory,” to “employ any part of the army
and navy of the United States” in doing so, and to establish a “temporary
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As for the numerous instances where offcers with territo-
r
ial responsibilities were popularly elected or appointed by
territorial offcials, see ante, at 461–462, Congress typically
transitioned to these arrangements after establishing an ini-
tial territorial government. The Northwest Ordinance, for
example, allowed the Governor to appoint “magistrates and
other civil offcers” “during the continuance of [a] temporary
government” established at the outset of the Northwest Ter-
ritory's existence, as “necessary for the preservation of the
peace and good order.” Act of Aug. 7, 1789, ch. 8, 1 Stat. 51,
n. (a). As soon as the Territory met a certain population
threshold, however, the territorial population was to directly
elect members of the lower house of the territorial legisla-
ture, which would in turn play a role in selecting the civil
offcers of the territorial government. Ibid. Following the
Northwest Ordinance's lead, the organic statutes for many
subsequent territories contemplated similar arrangements
for “transition[ing]” quickly to forms of “representative gov-
ernment.” J. Eblen, The First and Second United States
Empires: Governors and Territorial Government, 1784–1912,
pp. 54, 59 (1968); see also Leibowitz, Defning Status, at 6–7.
Congress' provision of limited or incremental home-rule
measures, moreover, seems to reveal little about the restric-
tions the Appointments Clause imposes on offcers selected
by the Federal Government. By defnition, selection by
home rule does not track the methods outlined in the Ap-
pointments Clause. But perhaps that is because home-rule
measures give to the Territory the ability to select its own
government” “until . . . provision for the temporary government . . . be
sooner made by Congress”); cf. 3 Stat. 524 (1819) (Florida) (similar); 31
Stat. 910 (1901) (Philippines) (authorizing the establishment of a “tempo-
rary government” pending “the establishment of permanent civil govern-
ment”); 33 St at. 429 (1904) (Panama Cana l Zone) (author i zi ng the
President “[t]o provide for the temporary government” of the Territory
“until . . . provision for the temporary government . . . be sooner made
by Congress”).
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governing offcers, which by necessity are territorial rather
than
federal. That the Territory selects its own governing
offcers, and that these offcers are necessarily territorial,
does not obviously imply that Congress may disregard the
Appointments Clause when it later provides for the Federal
Gover nment to selec t officers carry i ng out terr itor ia l
responsibilities.
6
In all, then, it is not particularly surprising that many of-
fcers who acted for the Territories historically were ap-
pointed in a manner other than that set out in the Appoint-
ments Clause. Viewed in proper historical context, those
offcers' appointments may refect nothing more than the
necessary incidents of the transition to and establishment
of full territorial self-government. For the overwhelming
majority of Territories in this Nation's history, of course,
that turning point coincided with Statehood. See Leibo-
witz, Defning Status, at 6–8 (describing the “transitory na-
ture” of the early Territories' “evolutionary process culmi-
nat[ing] in Statehood” and “the establishment of popular
self-government”); District of Columbia v. Carter, 409 U. S.
418, 431–432 (1973) (“From the moment of their creation, the
Territories were destined for admission as States into the
Union, and `as a preliminary step toward that foreordained
end—to tide over the period of ineligibility—Congress, from
time to time, created territorial governments, the existence
of which was necessarily limited' ” (quoting O'Donoghue v.
United States, 289 U. S. 516, 537 (1933))). But critically, the
transitional phase was never intended to last indefnitely.
See Amar, America's Constitution, at 273 (describing the
Founders' understanding that “[t]he older states would help
their younger siblings grow up and would thereafter regard
them as equals, rather than as permanent adolescents—the
6
For that reason, no unavoidable tension seems to exist between requir-
ing compliance with the Appointments Clause for the Board members and
preserving complete home rule in Puerto Rico (or, for that matter, any of
the other Territories).
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status to which Mother England had wrongly relegated her
own
New World wards”). The historical examples thus re-
veal little, if anything, about Congress' ability to establish
territorial officers in Territories that (much like Puerto
Rico) have long operated under the full measure of self-
government.
This Court's precedents do not speak to that circumstance
either. No doubt the Court has said that the Territories
Clause gives Congress “full and complete legislative author-
ity over the people of the Territories and all the departments
of the territorial governments.” County of Yankton, 101
U. S., at 132–133; see also id., at 133 (“Congress may not only
abrogate laws of the territorial legislatures, but it may itself
legislate directly for the local government”); Sere v. Pitot, 6
Cranch 332, 337 (1810); ante, at 474–475 (Thomas, J., concur-
ring in judgment). But none of those cases had to do with
the Appointments Clause. More important, none of them
addressed the scope of Congress' authority with respect to a
fully self-governing Territory. See Leibowitz, Defning Sta-
tus, at 15 (observing that “the broad statements of Congres-
sional power” in those cases “were made in the context of a
territory's evolution toward statehood,” and that “[t]his con-
text was the `restriction . . . necessarily implied in its
terms' ”). Much less do those cases inform whether and how
Congress may validly act on behalf of a Territory like Puerto
Rico, as to which Congress has expressly (and perhaps irre-
vocably in the absence of common consent) “relinquished . . .
control over [territorial] affairs.” Flores de Otero, 426 U. S.,
at 597; see also Rodriguez, 457 U. S., at 8 (describing Puerto
Rico as “an autonomous political entity, `sovereign over
matters not ruled by the [Federal] Constitution' ” (quoting
Calero-Toledo, 416 U. S., at 673)). Indeed, as the same cases
expressly acknowledged, Congress' authority under the Ter-
ritories Clause may “continu[e]” only “until granted away.”
County of Yankton, 101 U. S., at 133; see also supra, at
495–496.
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***
These
cases raise serious questions about when, if ever,
the Federal Government may constitutionally exercise au-
thority to establish territorial offcers in a Territory like
Puerto Rico, where Congress seemingly ceded that authority
long ago to Puerto Rico itself. The 1950s compact between
the Federal Government and Puerto Rico undoubtedly car-
ried ramifcations for Puerto Rico's status under federal and
international law; the same may be true of the Appointments
Clause analysis here. After all, the long-awaited promise of
Public Law 600's compact between Puerto Rico and the
Federal Government seemed to be that the people of Puerto
Rico may choose their own territorial offcers, rather than
have such offcers foisted on the Territory by the Federal
Government.
Viewed against that backdrop, the result of these cases
seems anomalous. The Board members, tasked with deter-
mining the fnancial fate of a self-governing Territory, exist
in a twilight zone of accountability, neither selected by
Puerto Rico itself nor subject to the strictures of the Ap-
pointments Clause. I am skeptical that the Constitution
countenances this freewheeling exercise of control over a
popu lati on that the Federa l Gover nment has expl icitly
agreed to recognize as operating under a government of
their own choosing, pursuant to a constitution of their own
choosing. Surely our Founders, having labored to attain
such recognition of self-determination, would not view that
same recognition with respect to Puerto Rico as a mere act
of grace. Nevertheless, because these issues are not prop-
erly presented in these cases, I reluctantly concur in the
judgment.
504 OCTOBER
TERM, 2019
Syllabus
BANISTER v. DAVIS, DIRECTOR, TEXAS DEPART-
MENT
OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
certiorari to the united states court of appeals for
the fth circuit
No. 18–6943. Argued December 4, 2019—Decided June 1, 2020
Federal Rule of Civil Procedure 59(e) allows a litigant to fle a motion to
alter or amend a district court's judgment within 28 days from the entry
of judgment, with no possibility of an extension. The Rule enables a
district court to “rectify its own mistakes in the period immediately
following ” its decision, White v. New Hampshire Dept. of Employment
Security, 455 U. S. 445, 450, but not to address new arguments or evi-
dence that the moving party could have raised before the decision. A
timely fled motion suspends the fnality of the original judgment for
purposes of appeal, and only the district court's disposition of the motion
restores fnality and starts the 30-day appeal clock. If an appeal fol-
lows, the ruling on the motion merges with the original determination
into a single judgment.
Title 28 U. S. C. § 2244(b), the so-called gatekeeping provision of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), gov-
erns federal habeas proceedings. Under AEDPA, a state prisoner is
entitled to one fair opportunity to seek federal habeas relief from his
conviction. Section 2244(b), however, sets stringent limits on second or
successive habeas applications. Among those restrictions, a prisoner
may not reasser t any clai ms “presented i n a pr i or applicati on, ”
§ 2244(b)(1), and may bring a new claim only in limited situations. Be-
cause habeas proceedings are civil in nature, the Federal Rules of Civil
Procedure generally apply, but statutory habeas restrictions, including
§ 2244(b), trump any “inconsistent” Rule. § 2254 Rule 12.
Petitioner Gregory Banister was convicted by a Texas court of aggra-
vated assault and sentenced to 30 years in prison. After exhausting
his state remedies, he fled for federal habeas relief, which the District
Court denied. Banister timely fled a Rule 59(e) motion, which the Dis-
trict Court also denied. He then fled a notice of appeal in accordance
with the timeline for appealing a judgment after the denial of a Rule
59(e) motion. But the Fifth Circuit construed Banister's Rule 59(e)
motion as a successive habeas petition and dismissed his appeal as
untimely.
Cite
as: 590 U. S. 504 (2020)
505
Syllabus
Held: Because a Rule 59(e) motion to alter or amend a habeas court's
judg
ment is not a second or successive habeas petition under 28 U. S. C.
§ 2244(b), Banister's appeal was timely. Pp. 511–521.
(a) The phrase “second or successive application” is a term of art and
does not “simply `refe[r]' ” to all habeas flings made “ `second or succes-
sively in time,' ” following an initial application. Magwood v. Patterson,
561 U. S. 320, 332. In addressing what qualifes as second or successive,
this Court has looked to historical habeas doctrine and practice and
AEDPA's purposes. Here, both point toward permitting Rule 59(e) mo-
tions in habeas proceedings.
Prior to AEDPA, the Court held in Browder v. Director, Dept. of
Corrections of Ill., 434 U. S. 257, that Rule 59(e) applied in habeas
proceedings. The Rule, the Court recounted, derived from courts'
common-law power “to alter or amend [their] own judgments during[ ]
the term of court in which [they were] rendered,” prior to any appeal,
including “in habeas corpus cases.” Id., at 270. Although the drafters
of the Federal Rules eventually replaced the “term of court” power with
Rule 59(e), the Court concluded that this did nothing to narrow the set
of judgments amenable to alteration. The record of judicial decisions
accords with that view. Pre-AEDPA, habeas courts were to dismiss
repetitive applications except in “rare case[s].” Kuhlmann v. Wilson,
477 U. S. 436, 451. Yet in the half century from Rule 59(e)'s adoption
through Browder to AEDPA's enactment, there exists only one dismissal
of a Rule 59(e) motion as impermissibly successive. In all other cases,
the district courts resolved Rule 59(e) motions on the merits.
Congress passed AEDPA against this backdrop, and gave no indica-
tion that it meant to change what qualifes as a successive application.
Nor do AEDPA's purposes of reducing delay, conserving judicial re-
sources, and promoting fnality suggest any different result. Rule 59(e)
offers a narrow, 28-day window to ask for relief; limits requests for
reconsideration to matters properly raised in the challenged judgment;
and consolidates proceedings by producing a single fnal judgment for
appeal. Indeed, the Rule may make habeas proceedings more effcient
by enabling a district court to reverse a mistaken judgment or to clarify
its reasoning so as to make an appeal unnecessary. Pp. 511–517.
(b) Gonzalez v. Crosby, 545 U. S. 524, which held that a Rule 60(b)
motion counts as a second or successive habeas application if it “attacks
the federal court's previous resolution of a claim on the merits,” id., at
532, does not alter that conclusion. Rule 60(b) differs from Rule 59(e)
in just about every way that matters here. Whereas Rule 59(e) derives
from a common-law court's plenary power to revise its judgment before
anyone could appeal, Rule 60(b) codifes various writs used to collater-
506 B
ANISTER v. DAVIS
Syllabus
ally attack a court's already completed judgment. That distinction was
not
lost on pre-AEDPA habeas courts, which routinely dismissed Rule
60(b) motions for raising repetitive claims. Next, the Rules' modern-
day operations also diverge, with only Rule 60(b) undermining AEDPA's
scheme to prevent delay and protect fnality. That is because a Rule
60(b) motion, which can arise long after the denial of a prisoner's initial
petition, generally goes beyond pointing out alleged errors in the just-
issued decision. Still more, a Rule 60(b) motion “does not affect the
[original] judgment's fnality or suspend its operation” and is appealable
as “a separate fnal order.” Stone v. INS, 514 U. S. 386, 401. Left un-
checked, a Rule 60(b) motion threatens serial habeas litigation, while a
Rule 59(e) motion is a one-time effort to point out alleged errors in a
just-issued decision before taking a single appeal. Pp. 517–521.
Reversed and remanded.
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Ginsburg, Breyer, Sotomayor, Gorsuch, and Kavanaugh, JJ.,
joined. Alito, J., fled a dissenting opinion, in which Thomas, J., joined,
post, p. 521.
Brian T. Burgess argued the cause for petitioner. With
him on the briefs were Andrew Kim and Gerard J. Cedrone.
Kyle D. Hawkins, Solicitor General of Texas, argued the
cause for respondent. With him on the brief were Ken Pax-
ton, Attorney General of Texas, Jeffrey C. Mateer, First As-
sistant Attorney General, Matthew H. Frederick, Deputy So-
licitor General, Natalie D. Thompson, Assistant Solicitor
General, and Trevor W. Ezell, Assistant Attorney General.
Benjamin W. Snyder argued the cause for the United
States as amicus curiae urging affrmance. With him on
the br ief were So l ic i t o r Gene ra l Franc isco, Assistan t
Attorney General Benczkowski, Eric J. Feigin, and Ann
O'Connell Adams.*
*Briefs of amici curiae urging reversal were fled for Law Professors
with Expertise in Habeas Corpus et al. by Charlotte H. Taylor, Kamaile
A. N. Turc
̆
an, and Lee Kovarsky, pro se; and for the National Association
of Criminal Defense Lawyers by Barbara E. Bergman.
A brief of amici curiae urging affrmance was fled for the State of
Indiana et al. by Curtis T. Hill, Jr., Attorney General of Indiana, Thomas
M. Fisher, Solicitor General, Kian J. Hudson, Deputy Solicitor General,
and Julia C. Payne and Robert L. Yates, Deputy Attorneys General, and
Cite
as: 590 U. S. 504 (2020)
507
Opinion of the Court
Justice Kagan delivered the opinion of the Court.
A
state prisoner is entitled to one fair opportunity to seek
federal habeas relief from his conviction. But he may not
usually make a “second or successive habeas corpus applica-
tion.” 28 U. S. C. § 2244(b). The question here is whether
a motion brought under Federal Rule of Civil Procedure
59(e) to alter or amend a habeas court's judgment qualifes
as such a successive petition. We hold it does not. A Rule
59(e) motion is instead part and parcel of the frst habeas
proceeding.
I
This case is about two procedural rules. First, Rule 59(e)
applies in federal civil litigation generally. (Habeas pro-
ceedings, for those new to the area, are civil in nature. See
Fisher v. Baker, 203 U. S. 174, 181 (1906).) The Rule enables
a party to request that a district court reconsider a just-
issued judgment. Second, the so-called gatekeeping provi-
sion of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), codifed at 28 U. S. C. § 2244(b), governs fed-
eral habeas proceedings. It sets stringent limits on second
or successive habeas applications. We say a few words
about each before describing how the courts below applied
them here.
A
Rule 59(e) allows a litigant to fle a “motion to alter or
amend a judgment.”
1
The time for doing so is short—28
days from entry of the judgment, with no possibility of an
by the Attorneys General for their respective States as follows: Steve Mar-
shall of Alabama, Ashley Moody of Florida, Christopher M. Carr of Geor-
gia, Clare E. Connors of Hawaii, Lawrence G. Wasden of Idaho, Derek
Schmidt of Kansas, Jeff Landry of Louisiana, Timothy C. Fox of Montana,
Douglas J. Peterson of Nebraska, Dave Yost of Ohio, Mike Hunter of Okla-
homa, Alan Wilson of South Carolina, Jason R. Ravnsborg of South Da-
kota, and Herbert H. Slatery III of Tennessee.
1
The complete text of the Rule reads: “A motion to alter or amend a
judgment must be fled no later than 28 days after the entry of the
judgment.”
508 B
ANISTER v. DAVIS
Opinion of the Court
extension. See Fed. Rule Civ. Proc. 6(b)(2) (prohibiting ex-
tensi
ons to Rule 59(e)'s deadline). The Rule gives a district
court the chance “to rectify its own mistakes in the period
immediately following ” its decision. White v. New Hamp-
shire Dept. of Employment Security, 455 U. S. 445, 450
(1982). In keeping with that corrective function, “federal
courts generally have [used] Rule 59(e) only” to “reconsider[ ]
matters properly encompassed in a decision on the merits.”
Id., at 451. In particular, courts will not address new argu-
ments or evidence that the moving party could have raised
before the decision issued. See 11 C. Wright, A. Miller, &
M. Kane, Federal Practice and Procedure § 2810.1, pp. 163–
164 (3d ed. 2012) (Wright & Miller); accord, Exxon Shipping
Co. v. Baker, 554 U. S. 471, 485–486, n. 5 (2008) (quoting prior
edition).
2
The motion is therefore tightly tied to the under-
lying judgment.
The fling of a Rule 59(e) motion within the 28-day period
“suspends the fnality of the original judgment” for purposes
of an appeal. FCC v. League of Women Voters of Cal., 468
U. S. 364, 373, n. 10 (1984) (internal quotation marks and al-
terations omitted). Without such a motion, a litigant must
take an appeal no later than 30 days from the district court's
entry of judgment. See Fed. Rule App. Proc. (FRAP)
4(a)(1)(A). But if he timely submits a Rule 59(e) motion,
there is no longer a fnal judgment to appeal from. See Os-
terneck v. Ernst & Whinney, 489 U. S. 169, 174 (1989). Only
the disposition of that motion “restores th[e] fnality” of the
original judgment, thus starting the 30-day appeal clock.
League of Women Voters, 468 U. S., at 373, n. 10 (internal
quotation marks omitted); see FRAP 4(a)(4)(A)(iv) (A party's
“time to fle an appeal runs” from “the entry of the order
2
By contrast, courts may consider new arguments based on an “inter-
vening change in controlling law” and “newly discovered or previously
unavailable evidence.” 11 Wright & Miller § 2810.1, at 161–162 (3d ed.
2012). But it is rare for such arguments or evidence to emerge within
Rule 59(e)'s strict 28-day timeframe.
Cite
as: 590 U. S. 504 (2020)
509
Opinion of the Court
disposing of the [Rule 59(e)] motion”). And if an appeal fol-
lows,
the ruling on the Rule 59(e) motion merges with the
prior determination, so that the reviewing court takes up
only one judgment. See 11 Wright & Miller § 2818, at 246;
Foman v. Davis, 371 U. S. 178, 181 (1962). The court thus
addresses any attack on the Rule 59(e) ruling as part of its
review of the underlying decision.
Now turn to § 2244(b)'s restrictions on second or successive
habeas petitions. Under AEDPA, a state prisoner always
gets one chance to bring a federal habeas challenge to his
conviction. See Magwood v. Patterson, 561 U. S. 320, 333–
334 (2010). But after that, the road gets rockier. To fle a
second or successive application in a district court, a prisoner
must frst obtain leave from the court of appeals based on
a “prima facie showing ” that his petition satisfes the stat-
ute's gatekeeping requirements. 28 U. S. C. § 2244(b)(3)(C).
Under those provisions, which bind the district court even
when leave is given, a prisoner may not reassert any claims
“presented in a prior application.” § 2244(b)(1). And he
may bring a new claim only if it falls within one of two nar-
row categories—roughly speaking, if it relies on a new and
retroactive rule of constitutional law or if it alleges pre-
viously undiscoverable facts that would establish his inno-
cence. See § 2244(b)(2). Still more: Those restrictions, like
all statutes and rules pertaining to habeas, trump any “in-
consistent” Federal Rule of Civil Procedure otherwise appli-
cable to habeas proceedings. 28 U. S. C. § 2254 Rule 12.
B
This case began when, nearly two decades ago, petitioner
Gregory Banister struck and killed a bicyclist while driving
a car. Texas charged him with the crime of aggravated as-
sault with a deadly weapon. A jury found him guilty, and
he was sentenced to 30 years in prison. State courts upheld
the conviction on direct appeal and in collateral proceedings.
Banister then turned to federal district court for habeas re-
510 B
ANISTER v. DAVIS
Opinion of the Court
lief. Although raising many claims, his petition mainly ar-
g
ued that his trial and appellate counsel provided him with
constitutionally ineffective assistance. The District Court
disagreed and entered judgment denying the application.
At that point, Banister timely fled a Rule 59(e) motion
asking the District Court to alter its judgment. Consistent
with the Rule's corrective purpose, Banister urged the court
to fx what he saw as “manifest errors of law and fact.”
App. 219. Five days later and without requiring a response
from the State, the court issued a one-paragraph order ex-
plaining that it had reviewed all relevant materials and stood
by its decision. See id., at 254. In accordance with the
timeline for appealing a judgment after the denial of a Rule
59(e) motion, see supra, at 508, Banister then fled a notice
of appeal (along with a request for a certifcate of appealabil-
ity) to challenge the District Court's rejection of his habeas
application.
Yet the Court of Appeals for the Fifth Circuit dismissed
the appeal as untimely. That ruling rested on the view that
Banister's Rule 59(e) motion, although captioned as such, was
not really a Rule 59(e) motion at all. Because it “attack[ed]
the federal court's previous resolution of [his] claim on the
merits,” the Fifth Circuit held that the motion must be “con-
strued as a successive habeas petition.” App. 305 (internal
quotation marks omitted). In any future case, that holding
would prohibit a habeas court from considering claims made
in a self-styled Rule 59(e) motion except in rare circum-
stances—that is, when a court of appeals gave permission
and the claim fell within one of § 2244(b)'s two slender cate-
gories. See supra, at 509. In Banister's own case, that bar
was of no moment because the District Court had already
addressed his motion's merits. But viewing a Rule 59(e)
motion as a successive habeas petition also had another con-
sequence, and this one would affect him. Unlike a Rule
59(e) motion, the Court of Appeals noted, a successive habeas
application does not postpone the time to fle an appeal.
Cite
as: 590 U. S. 504 (2020)
511
Opinion of the Court
That meant the clock started ticking when the District Court
denied
Banister's habeas application (rather than his subse-
quent motion)—and so Banister's appeal was several weeks
late.
We granted certiorari to resolve a Circuit split about
whether a Rule 59(e) motion to alter or amend a habeas
court's judgment counts as a second or successive habeas ap-
plication. 588 U. S. 905 (2019). We hold it does not, and
reverse.
II
This case requires us to choose between two rules—more
specifcally, to decide whether AEDPA's § 2244(b) displaces
Rule 59(e) in federal habeas litigation. The Federal Rules of
Civil Procedure generally govern habeas proceedings. See
Fed. Rule Civ. Proc. 81(a)(4). They give way, however, if
and to the extent “inconsistent with any statutory provisions
or [habeas-specifc] rules.” 28 U. S. C. § 2254 Rule 12; see
supra, at 509. Here, the Fifth Circuit concluded and Texas
now contends that AEDPA's limitation of repetitive habeas
applications conficts with Rule 59(e)'s ordinary operation.
That argument in turn hinges on viewing a Rule 59(e) motion
in a habeas case as a “second or successive application.”
§ 2244(b); see Brief for Respondent 10. If such a motion con-
stitutes a second or successive petition, then all of § 2244(b)'s
restrictions kick in—limiting the flings Rule 59(e) would
allow. But if a Rule 59(e) motion is not so understood—if it
is instead part of resolving a prisoner's frst habeas appli-
cation—then § 2244(b)'s requirements never come into the
picture.
The phrase “second or successive application,” on which
all this rides, is a “term of art,” which “is not self-defning.”
Slack v. McDaniel, 529 U. S. 473, 486 (2000); Panetti v. Quar-
terman, 551 U. S. 930, 943 (2007). We have often made clear
that it does not “simply `refer' ” to all habeas flings made
“ `second or successively in time,' ” following an initial appli-
cation. Magwood, 561 U. S., at 332 (quoting Panetti, 551
512 B
ANISTER v. DAVIS
Opinion of the Court
U. S., at 944 (alteration omitted)). For example, the courts
of
appeals agree (as do both parties) that an amended peti-
tion, fled after the initial one but before judgment, is not
second or successive. See 2 R. Hertz & J. Liebman, Federal
Habeas Corpus Practice and Procedure § 28.1, pp. 1656–1657,
n. 4 (7th ed. 2017) (collecting cases); Brief for Petitioner 20–
21; Brief for Respondent 16. So too, appeals from the ha-
beas court's judgment (or still later petitions to this Court)
are not second or successive; rather, they are further itera-
tions of the frst habeas application.
3
Chronology here is by
no means all.
In addressing what qualifes as second or successive, this
Court has looked for guidance in two main places. First, we
have explored historical habeas doctrine and practice. The
phrase “second or successive application,” we have ex-
plained, is “given substance in our prior habeas corpus
cases,” including those “predating [AEDPA's] enactment.”
Slack, 529 U. S., at 486; Panetti, 551 U. S., at 944; see id., at
943 (stating that the phrase “takes its full meaning from our
case law”). In particular, we have asked whether a type of
later-in-time fling would have “constituted an abuse of the
writ, as that concept is explained in our [pre-AEDPA] cases.”
Id., at 947. If so, it is successive; if not, likely not. Second,
we have considered AEDPA's own purposes. The point of
§ 2244(b)'s restrictions, we have stated, is to “conserve judi-
cial resources, reduc[e] piecemeal litigation,” and “lend[ ] f-
nality to state court judgments within a reasonable time.”
Id., at 945–946 (internal quotation marks omitted). With
those goals in mind, we have considered “the implications
for habeas practice” of allowing a type of fling, to assess
3
For additional examples, see Slack v. McDaniel, 529 U. S. 473, 487
(2000) (allowing a prisoner to fle a second-in-time, post-judgment applica-
tion to assert claims earlier dismissed for failure to exhaust), and Stewart
v. Martinez-Villareal, 523 U. S. 637, 643–644 (1998) (permitting a prisoner
to fle a second-in-time, post-judgment application to argue that he was
incompetent to be executed).
Cite
as: 590 U. S. 504 (2020)
513
Opinion of the Court
whether Congress would have viewed it as successive.
Stew
art v. Martinez-Villareal, 523 U. S. 637, 644 (1998).
Here, both historical precedents and statutory aims point in
the same direction—toward permitting Rule 59(e) motions in
habeas proceedings. And nothing cuts the opposite way.
A
This Court has already held that history supports a habeas
court's consideration of a Rule 59(e) motion. In Browder v.
Director, Dept. of Corrections of Ill., 434 U. S. 257 (1978),
we addressed prior to AEDPA “the applicability of Federal
Rule [59(e)] in habeas corpus proceedings.” Id., at 258. In
deciding that the Rule applied in habeas—that “a prompt
motion for reconsideration” was “thoroughly consistent”
with habeas law and “well suited to the special problems and
character of [habeas] proceedings”—we mainly looked to his-
torical practice. Id., at 271 (internal quotation marks omit-
ted). Rule 59(e), we recounted, derived from a court's
common-law power “to alter or amend its own judgments
during[ ] the term of court in which [they were] rendered,”
prior to any appeal. Id., at 270; see Zimmern v. United
States, 298 U. S. 167, 169–170 (1936) (“The judge had plenary
power while the term was in existence to modify his judg-
ment [or] revoke it altogether”).
4
Courts exercised that au-
thority, we explained, “in habeas corpus cases” just as “in
other civil proceedings.” Browder, 434 U. S., at 270. In
1946, the drafters of the Federal Rules replaced the “term
of court” power with Rule 59(e), thus prescribing a set num-
ber of days (then 10, now 28) in which a party could move to
amend a judgment. See id., at 271. But in our view, that
change did nothing to narrow the set of judgments amenable
to alteration. See id., at 270–271. After Rule 59(e), just as
4
A term of court in those days was simply a period in which a court
was open for business. A statute or rule set the date of its commence-
ment, and the court itself determined the date to adjourn. See United
States v. Pitman, 147 U. S. 669, 670–671 (1893).
514 B
ANISTER v. DAVIS
Opinion of the Court
before, a district court could “reconsider the grant or denial
of
habeas corpus relief ” in the same way it could review any
other decision. Id., at 270; see id., at 271. A timely Rule
59(e) motion, we held, “suspend[ed] the fnality” of any judg-
ment, including one in habeas—thus enabling a district court
to address the matter again. Id., at 267 (internal quotation
marks omitted).
5
The record of judicial decisions accords with Browder's
view of the use of Rule 59(e) in habeas practice. Before
AEDPA, “abuse-of-the-writ principles limit[ed] a [habeas ap-
plicant's] ability to fle repetitive petitions.” McCleskey v.
Zant, 499 U. S. 467, 483 (1991). That doctrine was more for-
giving than AEDPA's gatekeeping provision—for example,
enabling courts to hear a second or successive petition if the
“ends of justice” warranted doing so. Id., at 485. But the
rule against repetitive litigation still had plenty of bite. It
demanded the dismissal of successive applications except in
“rare case[s].” Kuhlmann v. Wilson, 477 U. S. 436, 451
(1986) (plurality opinion). So if courts had viewed Rule
59(e) motions as successive, there should be lots of decisions
dismissing them on that basis. But nothing of the kind ex-
ists. In the half century from Rule 59(e)'s adoption (1946)
through Browder (1978) to AEDPA's enactment (1996), we
5
The dissent's attempt to dismiss Browder is impossible to square with
the opinion. Mostly, the dissent claims that Browder is just a case about
“time limits.” Post, at 530–531 (opinion of Alito, J.). But Browder is
about time limits only in the sense that this case is about time limits:
There, as here, the timeliness of a motion depended on the broader ques-
tion whether Rule 59(e) applied in habeas proceedings. See 434 U. S., at
258 (“In order to resolve th[e] question” whether the “appeal was un-
timely,” “we must consider the applicability of Federal Rule[ ] 59 in habeas
corpus proceedings”). The dissent also intimates that Browder was dif-
ferent because there the prison warden rather than the prisoner moved
for reconsideration of the habeas ruling. See post, at 530–531, and n. 2.
But the Court's decision explicitly addressed “motion[s] to reconsider the
grant or denial of habeas corpus relief.” 434 U. S., at 270 (emphasis
added). In other words, the identity of the movant—whether warden or
prisoner—was irrelevant.
Cite
as: 590 U. S. 504 (2020)
515
Opinion of the Court
(and the parties) have found only one such dismissal. See
Bann
ister v. Armontrout, 4 F. 3d 1434, 1445 (CA8 1993). In
every other case, courts resolved Rule 59(e) motions on the
merits—and without any comment about repetitive litiga-
tion. Mostly, courts denied the motions and adhered to their
original judgments. See, e. g., Gajewski v. Stevens, 346 F. 2d
1000, 1001 (CA8 1965) (per curiam). Occasionally, courts
decided they had erred in those decisions. See, e. g., York v.
Tate, 858 F. 2d 322, 325 (CA6 1988) (per curiam). The win-
loss rate is for this point irrelevant. What matters is that
they all (but one) treated Rule 59(e) motions not as succes-
sive, but as attendant on the initial habeas application.
Congress passed AEDPA against this legal backdrop, and
did nothing to change it. AEDPA of course made the limits
on entertaining second or successive habeas applications
more stringent than before. See supra, at 509. But the
statute did not redefne what qualifes as a successive peti-
tion, much less place Rule 59(e) motions in that category.
Cf. Magwood, 561 U. S., at 336–337 (distinguishing between
two questions: Ҥ 2244(b)'s threshold inquiry into whether an
application is `second or successive,' and its subsequent in-
quiry into whether [to dismiss] a successive application”).
When Congress “intends to effect a change” in existing
law—in particular, a holding of this Court—it usually pro-
vides a clear statement of that objective. TC Heartland
LLC v. Kraft Foods Group Brands LLC, 581 U. S. 258, 268
(2017). AEDPA offers no such indication that Congress
meant to change the historical practice Browder endorsed of
applying Rule 59(e) in habeas proceedings.
Nor do AEDPA's purposes demand a change in that tradi-
tion. As explained earlier, AEDPA aimed to prevent serial
challenges to a judgment of conviction, in the interest of re-
ducing delay, conserving judicial resources, and promoting
fnality. See supra, at 512. Nothing in Rule 59(e)—a rule
Browder described as itself “based on an interest in speedy
disposition and fnality,” 434 U. S., at 271 (internal quotation
516 B
ANISTER v. DAVIS
Opinion of the Court
marks omitted)—conficts with those goals. Recall every-
th
ing said above about the Rule's operation. See supra, at
507–509. To begin with, Rule 59(e) gives a prisoner only a
narrow window to ask for relief—28 days, with no exten-
sions. Next, a prisoner may invoke the rule only to request
“reconsideration of matters properly encompassed” in the
challenged judgment. White, 455 U. S., at 451. And “re-
consideration” means just that: Courts will not entertain ar-
guments that could have been but were not raised before
the just-issued decision. A Rule 59(e) motion is therefore
backward-looking; and because that is so, it maintains a pris-
oner's incentives to consolidate all of his claims in his initial
application. Yet more, the Rule consolidates appellate pro-
ceedings. A Rule 59(e) motion briefy suspends fnality to
enable a district court to fx any mistakes and thereby per-
fect its judgment before a possible appeal. The motion's dis-
position then merges into the fnal judgment that the pris-
oner may take to the next level. In that way, the Rule
avoids “piecemeal appellate review.” Osterneck, 489 U. S.,
at 177. Its operation, rather than allowing repeated attacks
on a decision, helps produce a single fnal judgment for appeal.
Indeed, the availability of Rule 59(e) may make habeas
proceedings more effcient. Most obviously, the Rule en-
ables a district court to reverse a mistaken judgment, and so
make an appeal altogether unnecessary. See United States
v. Ibarra, 502 U. S. 1, 5 (1991) (per curiam) (noting that giv-
ing district courts a short time to correct their own errors
“prevents unnecessary burdens being placed on the courts
of appeals”). Of course, Rule 59(e) motions seldom change
judicial outcomes. But even when they do not, they give
habeas courts the chance to clarify their reasoning or address
arguments (often made in less-than-limpid pro se petitions)
passed over or misunderstood before. See Brief for Na-
tional Association of Criminal Defense Lawyers as Amicus
Curiae 12–20 (describing examples). That opportunity, too,
promotes an economic and effective appellate process, as the
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517
Opinion of the Court
reviewing court gets “the beneft of the district court's ple-
nary
fndings.” Osterneck, 489 U. S., at 177. And when a
district court sees no need to change a decision, the costs of
permitting a Rule 59(e) motion are typically slight. A judge
familiar with a habeas applicant's claims can usually make
quick work of a meritless motion. This case may well pro-
vide an example: The District Court declined to make the
State respond to Banister's motion and decided it within fve
days. Nothing in such a process conficts with AEDPA's
goal of streamlining habeas cases.
The upshot, after AEDPA as before, is that Rule 59(e) mo-
tions are not second or successive petitions, but instead a
part of a prisoner's frst habeas proceeding. In timing and
substance, a Rule 59(e) motion hews closely to the initial ap-
plication; and the habeas court's disposition of the former
fuses with its decision on the latter. Such a motion does not
enable a prisoner to abuse the habeas process by stringing
out his claims over the years. It instead gives the court a
brief chance to fx mistakes before its (single) judgment on
a (single) habeas application becomes fnal and thereby trig-
gers the time for appeal. No surprise, then, that habeas
courts historically entertained Rule 59(e) motions, rather
than dismiss them as successive. Or that Congress said not
a word about changing that familiar practice even when
enacting other habeas restrictions.
B
Texas (along with the dissent) resists this conclusion on
one main ground: this Court's prior decision in Gonzalez v.
Crosby, 545 U. S. 524 (2005). The questi on there was
whether a Rule 60(b) motion for “relie[f] from a fnal judg-
ment” denying habeas relief counts as a second or successive
habeas application. Fed. Rule Civ. Proc. 60(b).
6
We said
6
Under Rule 60(b), a court may relieve a party in civil litigation from a
fnal judgment if the party can show (1) mistake, inadvertence, surprise,
or excusable neglect; (2) certain newly discovered evidence; (3) fraud, mis-
518 B
ANISTER v. DAVIS
Opinion of the Court
that it does, so long as the motion “attacks the federal court's
pre
vious resolution of a claim on the merits.” 545 U. S., at
532 (emphasis deleted).
7
Texas thinks the “Gonzalez princi-
ple applies with equal force to Rule 59(e) motions.” Brief
for Respondent 8. After all, the State argues, both Rule
59(e) and Rule 60(b) provide “vehicles for asserting habeas
claims” after a district court has entered judgment denying
relief. Id., at 2. And if Gonzalez does apply, Texas con-
cludes, Banister must lose because (as everyone agrees) his
Rule 59(e) motion pressed only merits-based claims.
But Rule 60(b) differs from Rule 59(e) in just about every
way that matters to the inquiry here. (Contra the dissent's
refrain, see post, at 522, 524, 526, 531, 534, the variance goes
far beyond their “labels.”) Begin, again, with history. Re-
call that Rule 59(e) derives from a common-law court's ple-
nary power to revise its judgment during a single term of
court, before anyone could appeal. See supra, at 513–514.
By contrast, Rule 60(b) codifes various writs used to seek
relief from a judgment at any time after the term's expira-
tion—even after an appeal had (long since) concluded.
Those mechanisms did not (as the term rule did) aid the trial
court to get its decision right in the frst instance; rather,
they served to collaterally attack its already completed
representation, or misconduct by an opposing party; (4) voidness of the
judgment; (5) certain events that would cast doubt on the validity or eq-
uity of continuing to apply the judgment; or (6) “any other reason that
justifes relief.” Fed. Rule Civ. Proc. 60(b)(1)–(6).
7
By contrast, Gonzalez held, a Rule 60(b) motion that attacks “some
defect in the integrity of the federal habeas proceedings”—like the mis-
taken application of a statute of limitations—does not count as a habeas
petition at all, and so can proceed. 545 U. S., at 532. Texas concedes
that if Gonzalez controls Rule 59(e) motions, that decision's distinction
between merits-based motions and integrity-based motions would have to
apply. See Brief for Respondent 37. The need for a habeas court to
make that not-always-easy threshold determination further undermines
the notion—already on shaky ground, see supra, at 515–516—that Texas's
position would lead to any effciency gains.
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Opinion of the Court
judg ment. See Adv isory Committee's 1946 Notes on
Amendments
to Fed. Rule Civ. Proc. 60; Mann, Note, History
and Interpretation of Federal Rule 60(b), 25 Temp. L. Q. 77,
78 (1951). And that distinction was not lost on pre-AEDPA
habeas courts applying the two Rules. As discussed earlier,
it is practically impossible to fnd a case dismissing a Rule
59(e) motion for raising repetitive claims. See supra, at
514–515. But decisions abound dismissing Rule 60(b) mo-
tions for that reason. See, e. g., Williamson v. Rison, 1993
WL 262632 (CA9, July 9, 1993); see also Brewer v. Ward, 1996
WL 194830, *1 (CA10, Apr. 22, 1996) (collecting cases from
multiple Circuits). That is because those courts recognized
Rule 60(b)—as contrasted to Rule 59(e)—as threatening an
already fnal judgment with successive litigation.
8
The modern-day operations of the two Rules also diverge,
with only Rule 60(b) undermining AEDPA's scheme to pre-
vent delay and protect fnality. Unlike Rule 59(e) motions
with their fxed 28-day window, Rule 60(b) motions can arise
long after the denial of a prisoner's initial petition—depend-
ing on the reason given for relief, within either a year or a
more open-ended “reasonable time.” Fed. Rule Civ. Proc.
60(c)(1). In Gonzalez itself, the prisoner made his motion
nearly three years after the habeas court's denial of relief,
8
The dissent's alternative explanation for this disparity does not pass
muster. According to the dissent, habeas courts “might have been more
inclined” to rule on the merits of Rule 59(e) motions because doing so was
easier: after all, they (but not Rule 60(b) motions) always challenge a just-
issued decision. Post, at 532. But another course would have been eas-
ier still: throwing out the motion for raising repetitive claims. And even
more to the point, that course would usually have been required if the
dissent were right that Rule 59(e) motions counted as successive. Al-
though pre-AEDPA courts had some discretion around the edges, the con-
sideration of successive petitions was supposed to be “rare.” Kuhlmann
v. Wilson, 477 U. S. 436, 451 (1986) (plurality opinion); see supra, at 514.
It is a “tall order,” post, at 533, then, to think that a half century's worth
of habeas courts would have resolved Rule 59(e) motions on the merits if
they thought of those motions as successive. The only plausible account
of their actions is that they did not.
520 B
ANISTER v. DAVIS
Opinion of the Court
and more than one year after his appeal ended. See 545
U
. S., at 527. Given that extended timespan, Rule 60(b) in-
evitably elicits motions that go beyond Rule 59(e)'s mission of
pointing out the alleged errors in the habeas court's decision.
See, e. g., Lopez v. Douglas, 141 F. 3d 974, 975 (CA10 1998)
(per curiam) (seeking relief in light of a Supreme Court deci-
sion issued a decade after judgment); Tyler v. Anderson, 749
F. 3d 499, 504–505 (CA6 2014) (seeking to raise claims that
former counsel had neglected in a years-old habeas applica-
tion). Still more, the appeal of a Rule 60(b) denial is inde-
pendent of the appeal of the original petition. Recall that a
Rule 59(e) motion suspends the fnality of the habeas judg-
ment, and a decision on the former merges into the latter
for appellate review. See supra, at 508–509, 515–516. By
contrast, a Rule 60(b) motion “does not affect the [original]
judgment's fnality or suspend its operation.” Fed. Rule
Civ. Proc. 60(c)(2). And an appeal from the denial of Rule
60(b) relief “does not bring up the underlying judgment for
review.” Browder, 434 U. S., at 263, n. 7. Instead, that de-
nial is appealed as “a separate fnal order.” Stone v. INS,
514 U. S. 386, 401 (1995).
9
In short, a Rule 60(b) motion differs from a Rule 59(e)
motion in its remove from the initial habeas proceeding. A
Rule 60(b) motion—often distant in time and scope and al-
ways giving rise to a separate appeal—attacks an already
9
Texas objects that if a Rule 60(b) motion is fled within 28 days, it too
suspends the fnality of the underlying judgment so that the denial of the
motion merges with that judgment on appeal. See Brief for Respondent
25, 28. But that is only because courts of appeals have long treated Rule
60(b) motions fled within 28 days as . . . Rule 59(e) motions. See, e. g.,
Skagerberg v. Oklahoma, 797 F. 2d 881, 882–883 (CA10 1986) (per curiam)
(“[A] post-judgment motion made within [28] days of the entry of judg-
ment that questions the correctness of a judgment,” however denomi-
nated, “is properly construed as a motion to alter or amend judgment
under [Rule] 59(e)”); see also Fed. Rule App. Proc. 4(a)(4)(A)(vi) (codifying
that approach by setting the same appeals clock for self-styled Rule 60(b)
motions fled within 28 days as for Rule 59(e) motions).
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521
Alito, J., dissenting
completed judgment. Its availability threatens serial ha-
beas
litigation; indeed, without rules suppressing abuse, a
prisoner could bring such a motion endlessly. By contrast,
a Rule 59(e) motion is a one-time effort to bring alleged er-
rors in a just-issued decision to a habeas court's attention,
before taking a single appeal. It is a limited continuation of
the original proceeding—indeed, a part of producing the fnal
judgment granting or denying habeas relief. For those rea-
sons, Gonzalez does not govern here. A Rule 59(e) motion,
unlike a Rule 60(b) motion, does not count as a second or
successive habeas application.
III
Our holding means that the Court of Appeals should not
have dismissed Banister's appeal as untimely. Banister
properly brought a Rule 59(e) motion in the District Court.
As noted earlier, the 30-day appeals clock runs from the dis-
position of such a motion, rather than from the initial entry
of judgment. See supra, at 508. And Banister fled his no-
tice of appeal within that time. The Fifth Circuit reached a
contrary conclusion because it thought that Banister's mo-
tion was really a second or successive habeas application, and
so did not reset the appeals clock. For all the reasons we
have given, that understanding of a Rule 59(e) motion is
wrong. We therefore reverse the judgment of the Court of
Appeals and remand the case for further proceedings con-
sistent with this opinion.
It is so ordered.
Justice Alito, w ith whom Justice Thomas joi ns,
dissenting.
Gregory Banister, a state prisoner, fled a federal habeas
petition arguing that his conviction was invalid for 53 rea-
sons. His arguments spanned almost 300 pages and fea-
tured an imagined retelling of the jury deliberations in the
form of stage dialogue. After the District Court deter-
522 B
ANISTER v. DAVIS
Alito, J., dissenting
mined that all his claims lacked merit, he fled a motion rear-
g
uing many of them.
If Banister had labeled this motion what it was in sub-
stance—another habeas petition—it would have been sum-
marily dismissed under 28 U. S. C. § 2244(b)(1). If he had
labeled it a motion for relief from judgment under Federal
Rule of Civil Procedure 60(b), it would also have been sub-
ject to dismissal under our decision in Gonzalez v. Crosby,
545 U. S. 524 (2005). Instead, he gave it a different label,
styling it as a motion to alter the judgment under Rule 59(e),
and the Court now holds this label makes all the difference.
The question in this case is whether a state prisoner can
evade the federal habeas statute's restrictions on second or
successive habeas petitions by affxing a Rule 59(e) label.
The answer follows from our decision in Gonzalez, and the
answer is no. If a Rule 59(e) motion asserts a habeas claim,
the motion functions as a second or successive habeas peti-
tion and should be treated as such.
I
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) “streamlin[es] federal habeas corpus proceed-
ings.” Rhines v. Weber, 544 U. S. 269, 277 (2005). A state
prisoner is generally limited to a single federal habeas peti-
tion, which usually must be fled within one year after the
end of direct review; the district court must give this peti-
tion “priority”; if the prisoner is dissatisfed with the district
court's decision and wants to appeal, he must seek permis-
sion from the appropriate court of appeals and must set out
the errors he thinks the district court made; and the appeal
can go for ward only i f a speci fied st andard is met.
§§ 2244(d), 2253(c), 2254(a), 2266(a). As we have frequently
said, this design was crafted to promote comity, fnality, fed-
eralism, and judicial effciency. See, e. g., Panetti v. Quar-
terman, 551 U. S. 930, 945 (2007).
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523
Alito, J., dissenting
Habeas petitions occupy an outsized place on federal dock-
ets.
See infra, at 533–534. Their effcient resolution not
only preserves federal judicial capacity but removes the
cloud of federal review from state-court judgments. The
federal habeas provisions create a procedural regime that
differs sharply from the regime that generally applies in civil
cases, and the habeas statute displaces any Federal Rule of
Civil Procedure that is “inconsistent with” its provisions.
28 U. S. C. § 2254 Rule 12 (Habeas Rule 12).
Integral to AEDPA's design are its restrictions on “second
or successive” habeas petitions, which, prior to AEDPA,
sometimes led to very lengthy delays. See, e. g., Kuhlmann
v. Wilson, 477 U. S. 436, 453, and n. 15 (1986) (plurality opin-
ion). A provision added by AEDPA, 28 U. S. C. § 2244(b),
is designed to prevent this. Under § 2244(b)(1), a second
or successive petition may not duplicate the initial petition.
Thus, any claim “that was presented in a prior application
shall be dismissed.” § 2244(b)(1). In addition, second or
successive petitions usually may not raise new claims either.
Any claim “that was not presented in a prior applica-
tion shall be dismissed unless” it meets stringent standards
contained in § 2244(b)(2). Specifcally, to avoid dismissal,
a new claim must rely on (1) “a new rule of constitutional
law” that this Court has made applicable in habeas proceed-
ings or (2) a fact that “could not have been discovered pre-
viously through the exercise of due diligence” and that now
makes the petitioner's innocence “clear and convincing.”
§§ 2244(b)(2)(A)–(B).
A prisoner wishing to fle a second or successive petition
must apply to a court of appeals for permission to do so,
and the court of appeals cannot authorize the fling unless
the petition makes a prima facie showing that it meets
§ 2244(b)(2)'s standards. § 2244(b)(3). If a court of appeals
allows the second or successive petition to be fled, the dis-
trict court must nevertheless review its claims and dismiss
524 B
ANISTER v. DAVIS
Alito, J., dissenting
any that turns out not to meet § 2244(b)(2)'s standards.
§
2244(b)(4).
II
In Gonzalez, we considered how § 2244(b) applies to a fling
that is in essence a second or successive habeas petition but
bears a different label. The fling there was a motion under
Rule 60(b), which allows a court to relieve a party of an ear-
lier judgment. Every Member of the Gonzalez Court, in-
cluding those in dissent, recognized that whether a Rule
60(b) motion should be treated as a habeas petition depends
on the nature of the relief the motion seeks, not the label
slapped onto it. 545 U. S., at 532 (opinion of the Court); id.,
at 538 (Breyer, J., concurring); id., at 539 (Stevens, J., dis-
senting). And in considering whether a Rule 60(b) motion
asserts the type of relief that requires it to be treated as a
habeas petition, the critical question is whether the motion
in essence asserts a habeas claim, that is, a claim that pro-
pounds a “federal basis for relief from a state court's judg-
ment of conviction.” Id., at 530 (opinion of the Court). If
the motion “seeks to add a new ground for” that relief, it
“will of course qualify” as a second or successive habeas peti-
tion. Id., at 532. It will also qualify “if it attacks the fed-
eral court's previous resolution of a [habeas] claim on the
merits.” Ibid.
To see how this analysis plays out, imagine a case in which
a state prisoner fles a Rule 60(b) motion alleging that he
was denied the effective assistance of counsel at trial. If
that claim was not in his initial habeas petition, the motion
constitutes a second or successive habeas petition because it
asserts a new reason why he is entitled to habeas relief.
And if that claim was in his initial habeas petition but he
now alleges that the court erroneously denied the claim, the
motion is still a second or successive habeas petition since it
alleges that the court should have granted him habeas relief,
an argument that is “effectively indistinguishable” from the
claim that he was entitled to that relief in the frst place.
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525
Alito, J., dissenting
Ibid. In either event, we held in Gonzalez, “failing to sub-
jec
t” the motion to § 2244(b) “would be inconsistent with”
AEDPA. Id., at 531 (internal quotation marks omitted).
Although Gonzalez concerned a motion under Rule 60(b),
nothing in its reasoning was tied to any specifc characteris-
tics of such a motion, and accordingly, there is no good reason
why a Rule 59(e) motion should not be subject to the same
rules. Indeed, the application of Gonzalez's reasoning is
even more clear-cut when a habeas petitioner fles a Rule
59(e) motion. Like its neighbor, Rule 59(e) provides a way
for a civil litigant to get relief after the entry of judgment,
but a Rule 59(e) motion can seek only “reconsideration of
matters properly encompassed in a decision on the merits.”
White v. New Hampshire Dept. of Employment Security,
455 U. S. 445, 451 (1982); accord, ante, at 516. And a claim
that “attacks the federal court's previous resolution of a
claim on the merits” is exactly the type of claim that, under
Gonzalez, is subject to § 2244(b)(1) and must therefore be
dismissed. 545 U. S., at 532.
1
Today's opinion thus permits precisely the type of circum-
vention that Gonzalez prevents. Consider again the habeas
petitioner with the allegedly bad trial lawyer. Suppose
that, after the district court denies an ineffective-assistance
claim in his initial petition, he submits three effectively indis-
tinguishable flings under different headers: a second habeas
petition asserting the same claim again; a Rule 60(b) motion
disputing the court's resolution of the claim; and a Rule 59(e)
motion doing the same. The frst two will face dismissal
under § 2244(b)(1). But, under today's decision, the third
may proceed. And not only that, if a pro se litigant does not
1
Rule 59(e) motions can also assert “newly discovered or previously un-
available evidence” and “intervening change[s] in controlling law.” 11 C.
Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2810.1 (3d
ed. Supp. 2020). Banister's motion did neither, see Brief for Petitioner
47, so this case concerns only the types of claims that require automatic
dismissal under 28 U. S. C. § 2244(b)(1).
526 B
ANISTER v. DAVIS
Alito, J., dissenting
appreciate that he can get around § 2244(b)(1) by calling his
second
or successive petition a Rule 59(e) motion, a court
may “ignore the legal label that [the] pro se litigant attaches
to” his fling, treat the petition as a Rule 59(e) motion, and
voilà, § 2244(b) disappears from view. Castro v. United
States, 540 U. S. 375, 381 (2003). This allows a habeas peti-
tioner to obtain “a second chance to have the merits deter-
mined favorably” in contravention of AEDPA and our rea-
soning in Gonzalez, 545 U. S., at 533, n. 5.
III
The Court provides a variety of reasons for refusing to
follow Gonzalez, but none is sound.
A
The Court begins by saying that a Rule 59(e) motion is
part of a petitioner's “one fair opportunity to seek federal
habeas relief,” ante, at 507, but if there is a reason why a
Rule 60(b) motion could not also be called part of that “op-
portunity,” the Court does not offer one. A repetitive ha-
beas claim is as much a repetitive habeas claim if fled under
Rule 59(e) in 28 days or under Rule 60(b) at, say, day 29.
The label is the only “variance” that explains why one is now
allowed but not the other. Ante, at 518.
B
The Court proclaims that Rules 59(e) and 60(b) differ “in
just about every way that matters to the inquiry here,” ibid.,
but none of the differences that the Court cites matters
under Gonzalez's reasoning, which relies on the nature of
the claim asserted in the post-judgment motion. Under that
reasoning, it makes no difference that a Rule 60(b) motion
may be fled later than a Rule 59(e) motion, that a Rule 59(e)
motion (but not a later-fled Rule 60(b) motion) suspends a
judgment's fnality for purposes of appeal, or that an order
denying a Rule 59(e) motion merges with the judgment for
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Alito, J., dissenting
purposes of appeal, whereas a Rule 60(b) denial is separately
appea
lable. Ante, at 519–520. Gonzalez did not rely on a
single one of the Rule 60(b) characteristics mentioned by
the Court here, and none matters under Gonzalez's reason-
ing. On the contrary, Gonzalez's logic was simple: If a
motion advances a habeas claim, it counts as a habeas
petition.
C
The Court looks to the history of motions to alter or amend
a judgment, see ante, at 513–514, but it is hard to see how
that history has a bearing on the issue in this case. As the
Court notes, trial courts once had the power to correct errors
in their judgments during but not after the term in which
the judgment was handed down, but how this is relevant to
our issue is a mystery. The point in time at which a court's
power to alter or amend a judgment ends (whether at the
conclusion of a court term or at a specifed point after the
entry of the judgment) is used to determine whether a mo-
tion to alter or amend is timely. But the issue before us is
not whether Banister fled his Rule 59(e) motion within the
time allowed for such motions (he did) but whether his mo-
tion counts as a habeas petition. The question would be ex-
actly the same if district courts still had terms of court and
his motion was fled before the term ended.
D
In arguing that “[t]his case requires us to choose between”
§ 2244(b) and Rule 59(e), ante, at 511, the Court invokes Ha-
beas Rule 12, which states that “[t]he Federal Rules of Civil
Procedure, to the extent that they are not inconsistent with
any statutory provisions or these rules, may be applied to
a proceeding under these rules.” According to the Court,
AEDPA does not “place Rule 59(e) motions in th[e] category”
of second or successive petitions, and therefore AEDPA does
not alter Rule 59(e)'s role. Ante, at 515.
528 B
ANISTER v. DAVIS
Alito, J., dissenting
This argument greatly exaggerates the very limited role
of
Habeas Rule 12. Although “habeas corpus proceedings
are characterized as `civil,' ” “the label is gross and inexact.”
Harris v. Nelson, 394 U. S. 286, 293–294 (1969). They are
“unique,” and even before AEDPA they “conformed with
civil practice only in a general sense.” Id., at 294. Thus,
we have contrasted a “civil action, governed by the full pano-
ply of the Federal Rules of Civil Procedure,” with the “swift,
fexible, and summary determination” of a habeas claim.
Preiser v. Rodriguez, 411 U. S. 475, 495–496 (1973). The
Civil Rules themselves give AEDPA precedence. They
“apply to proceedings for habeas corpus” only insofar as “the
practice in those proceedings . . . is not specifed in a federal
statute” or the Habeas Rules and “has previously conformed
to the practice in civil actions.” Fed. Rule Civ. Proc.
81(a)(4). And as we have observed, “[s]uch specifc evidence
as there is with respect to the intent of the draftsmen of
the [civil] rules indicates nothing more than a general and
nonspecifc understanding that the rules would have very
limited application to habeas corpus proceedings.” Harris,
394 U. S., at 295.
Let's count some of the ways in which habeas proceedings
deviate from the Civil Rules. Discovery rules, which are
central to civil litigation, do not apply “as a matter of right”
in habeas proceedings. Ibid. Instead, a court's leave is re-
quired for factual development. See Habeas Rule 6(a); see
also Bracy v. Gramley, 520 U. S. 899, 908–909 (1997). An-
other civil mainstay, the Rule 12(b)(6) motion to dismiss, also
has no place in habeas. See Browder v. Director, Dept. of
Corrections of Ill., 434 U. S. 257, 269, n. 14 (1978); see also
Habeas Rule 4 (responsive pleading not required unless the
court directs). Indeed, the entire “civil action procedural
sequencing—from a motion to dismiss, to an answer, to dis-
covery, and ultimately to trial—[i]s not applicable in habeas
cases.” O'Brien v. Moore, 395 F. 3d 499, 506 (CA4 2005)
(discussing Browder, 434 U. S., at 269, n. 14). Even nation-
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529
Alito, J., dissenting
wide service of process authorized by statute, rather than
the
Civil Rules, is unavailable in habeas. See Schlanger v.
Seamans, 401 U. S. 487, 489–491, and n. 4 (1971). And
though courts have long applied “noncontroversial rules in
habeas corpus proceedings,” Harris, 394 U. S., at 294, n. 5,
the mixed bag shows habeas's hybrid nature. See 4 C.
Wright, A. Miller, & A. Steinman, Federal Practice and Pro-
cedure § 1021, n. 6 (4th ed. Supp. 2020) (Wright & Miller)
(cataloging other rules that courts have and have not
applied).
Our decisions rejecting some of the Civil Rules' procedural
“formalisms” have often inured to the beneft of habeas peti-
tioners. Hensley v. Municipal Court, San Jose-Milpitas
Judicial Dist., Santa Clara Cty., 411 U. S. 345, 350 (1973).
In O'Neal v. McAninch, 513 U. S. 432 (1995), we rejected
a State's argument that Rule 61 put the burden on habeas
petitioners to resolve doubts about whether trial errors were
harmless, and we reached that conclusion primarily because
habeas proceedings are “[u]nlike the civil cases cited by the
State.” Id., at 440. In Holiday v. Johnston, 313 U. S. 342
(1941), the petitioner sought habeas relief from a district
court but received a hearing before an Alcatraz commis-
sioner. We held that Rule 53, which allows a court to send
some issues to a “master,” did not justify that practice in
habeas cases; the federal habeas statute contemplated pro-
ceedings before judges, giving Rule 53 “no application.”
Id., at 353. In so holding, we rejected the argument that
the practice at issue was permissible because it was “a con-
venient one,” id., at 352, the same claim that the Court
makes about Rule 59(e), ante, at 516–517. Instead, we held
that a court “may not substitute another more convenient
mode” from civil practice if it contravenes “the Congres-
sional policy” refected “in the Habeas Corpus Act.” Holi-
day, 313 U. S., at 352.
AEDPA has only widened the gap between habeas and
other civil proceedings, see Felker v. Turpin, 518 U. S. 651,
530 B
ANISTER v. DAVIS
Alito, J., dissenting
664 (1996), and Gonzalez illustrates the point. Like Rule
59(
e) and the other Rules just discussed, no federal habeas
provision “expressly circumscribe[s]” the application of Rule
60(b) in habeas cases. 545 U. S., at 529. And like Rule 59(e)
but unlike the discovery rules, which were “innovations,”
Hickman v. Taylor, 329 U. S. 495, 500 (1947), Rule 60(b) de-
scends from “ancient” civil practice, 11 Wright & Miller
§ 2851. But AEDPA so “dramatically” reshaped federal ha-
beas procedure, Rhines, 544 U. S., at 274, that courts must
proceed “in a manner consistent with the objects of the stat-
ute” even where it does not address a given detail, Calderon
v. Thompson, 523 U. S. 538, 554 (1998). Where a Civil Rule
does confict with a specifc AEDPA provision like § 2244(b),
AEDPA necessarily prevails.
On its own, then, Habeas Rule 12 cannot do the work that
Banister needs. He must show that AEDPA itself contains
the loophole he seeks to exploit, and he has not done so. The
refrain echoed by the Court—that a Rule 59(e) motion comes
included with a petitioner's “one full and fair opportunity”
for habeas relief, Brief for Petitioner 1; see ante, at 507—
simply begs the question that AEDPA answers: namely,
what that opportunity entails. It does not entail “a second
chance to have the merits” of a habeas claim “determined
favorably.” Gonzalez, 545 U. S., at 533, n. 5.
Lifting partial quotations from our decision in Browder,
434 U. S., at 271, the Court states that we have “already
held” that Rule 59(e) is “ `thoroughly consistent' with habeas
law,” ante, at 513, but the partial quotations are highly mis-
leading. The case had nothing to do with the interplay be-
tween Rule 59(e) and restrictions on fling a second or succes-
sive habeas petition.
In Browder, a prison warden moved for reconsideration of
a judgment granting habeas relief, but he did not do so
within the time allowed by Rule 59 and Rule 52(b), which
sets the same deadline for a motion to amend factual fnd-
ings. All that the Court held was that those “time limits”
Cite
as: 590 U. S. 504 (2020)
531
Alito, J., dissenting
were “thoroughly consistent with the spirit of the habeas
cor
pus statutes,” which did not address the “timeliness” of
such a motion. 434 U. S., at 270–271.
Browder in no way establishes that it is “thoroughly con-
sistent with” AEDPA to allow a petitioner to accomplish via
a Rule 59(e) motion what the prisoner could not achieve by
honestly labeling his motion as a habeas petition.
2
The war-
den, of course, was not seeking habeas relief, so his Rule
59(e) motion could not have constituted a successive habeas
petition.
E
This brings us to the Court's fnal redoubt, pre-AEDPA
practice. We have sometimes looked there in interpreting
AEDPA's terms. See Slack v. McDaniel, 529 U. S. 473, 486
(2000). But assuming pre-AEDPA practice can inform our
understanding of AEDPA, history lends no real support to
the Court's holding that a Rule 59(e) motion cannot count as
a second or successive habeas petition. Research has found
exactly one decision that directly addresses that question,
and its holding is contrary to the Court's position.
In Bannister v. Armontrout, 4 F. 3d 1434 (CA8 1993), after
the District Court denied a habeas petition, the prisoner fled
a Rule 59(e) motion asserting a new claim. The Eighth Cir-
cuit held that this motion “was the functional equivalent of
a second petition” and rejected it on that ground. Id., at
1445. The Court does not attempt to distinguish that case,
and cannot cite a single pre-AEDPA case that directly sub-
stantiates its claim about pre-AEDPA practice.
Without any direct support, the Court reads volumes into
what it sees as the disparate treatment of habeas petitioners'
2
Browder cites two cases for the proposition that courts had power to
alter their judgments “in habeas corpus cases.” 434 U. S., at 270. Nei-
ther did so at the habeas petitioner's request. See Aderhold v. Murphy,
103 F. 2d 492, 493 (CA10 1939) (sua sponte alteration deemed void on
appeal); Tiberg v. Warren, 192 F. 458, 462 (CA9 1911) (government
motion).
532 B
ANISTER v. DAVIS
Alito, J., dissenting
Rule 60(b) and 59(e) motions in pre-AEDPA days. Pre-
AEDP
A courts often, though not always, treated prisoners'
Rule 60(b) motions as successive habeas petitions. See
Brewer v. Ward, 1996 WL 194830, *1 (CA10, Apr. 22, 1996)
(noting the trend as to motions “raising new claims” but af-
frming a denial of Rule 60(b) relief on the merits). By con-
trast, only Bannister denied a Rule 59(e) motion on that
basis, and a handful of cases denied (or reversed lower-court
decisions granting) habeas petitioners' Rule 59(e) motions on
other grounds. Ante, at 514–515. From this state of af-
fairs, the Court infers that Rule 59(e) motions were generally
regarded as free from the pre-AEDPA strictures on second
or successive petitions. In other words, the Court infers
that judges thought that they were required to decide Rule
59(e) motions on the merits even if they were second or suc-
cessive habeas petitions in substance.
This is nothing but speculation, and there is a more likely
explanation for the disparity between reported cases dis-
missing Rule 60(b) and Rule 59(e) motions as second or suc-
cessive. Before AEDPA, whether to entertain a successive
habeas petition was left to “the sound discretion of the fed-
eral trial judges,” Sanders v. United States, 373 U. S. 1, 18
(1963), and therefore the disparity may be attributable, not
to what judges thought they were required to do, but to what
they chose to do as a matter of discretion. And the Court
provides the obvious reasons why judges might have been
more inclined to reach the merits in Rule 59(e) cases. A
Rule 59(e) motion raises claims that the judge recently de-
cided; a Rule 60(b) motion may raise entirely new claims and
may be fled later. For these reasons, judges might have
found it more attractive to decide the merits in Rule 59(e)
cases when they had the discretion to do so.
The important point, however, is that the Court can only
speculate. But based on that speculation, the Court is will-
ing to conclude that in the days before AEDPA, judges
thought that they were legally required to decide the merits
Cite
as: 590 U. S. 504 (2020)
533
Alito, J., dissenting
of second or successive habeas petitions if they were labeled
as
Rule 59(e) motions and that AEDPA's express and tight
restrictions on second or successive petitions were enacted
on the understanding that this feature of pre-AEDPA prac-
tice would not be disturbed. That is a tall order indeed,
and this inconclusive case law does not suffce. See, e. g.,
Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952) (“Stat-
utes . . . are to be read with a presumption favoring the
retention of long-established and familiar principles”).
IV
A
The Court muses that its opinion “may make habeas pro-
ceedings more effcient,” ante, at 516, but improving statutes
is not our job, and in any event, the Court's assessment of
the consequences of its decision is dubious.
State prisoners fle thousands of federal habeas petitions
per year.
3
After a petition is denied, as most are, the Court
suggests that Rule 59(e) gives federal habeas courts a chance
“to correct their own errors” or “to clarify their reasoning,”
but the value of this opportunity is questionable since, as
the Court admits, “Rule 59(e) motions seldom change judicial
outcomes.” Ibid. Statistics agree that, in the main, dis-
trict courts resolve habeas petitions correctly. In 2019, ap-
peals courts reversed in only a miniscule percentage of ap-
peals in cases involving state prisoners' habeas claims.
4
The Court is probably right that, once in a while, a
Rule 59(e) motion could save the need for an appeal. But
that positive effect is very likely outweighed by the burden
imposed by the entirely meritless Rule 59(e) motions that
3
See Administrative Offce of the U. S. Courts, Federal Judicial Caseload
Statistics, U. S. District Courts–Civil Cases Commenced, by Basis of Juris-
diction and Nature of Suit (2019) (Table C–2). State prisoners' habeas
petitions are listed under the “Federal Question” category of “Private
Cases.”
4
See id., Table B–5.
534 B
ANISTER v. DAVIS
Alito, J., dissenting
today's decision will give prisoners an incentive to fle. Not
only
will prisoners fle such motions on the off chance of win-
ning, but some may fle simply to toll the deadline for fling
an appeal, Fed. Rule App. Proc. 4(a)(4)(A)(iv). The burden
of wading through these motions will not always be “slight.”
Ante, at 517; see App. 219–253 (Banister's motion). And the
aggregate burden on the district courts may actually be
quite substantial.
The Court's decision would be more understandable if it
offered any real beneft for habeas petitioners, but it does
not. As Banister concedes, see Brief for Petitioner 33, the
standard for Rule 59(e) relief from an erroneous judgment is
higher than the standard for permission to appeal. Com-
pare Miller-El v. Cockrell, 537 U. S. 322, 336 (2003) (“reason-
able debate” standard for a certifcate of appealability), with
11 Wright & Miller § 2810.1 (“manifest error” standard for
Rule 59(e) relief ). So if a prisoner has a claim that can pre-
vail under Rule 59(e), there should be no problem in obtain-
ing permission to appeal. That is the procedure prescribed
by AEDPA, and it is an entirely reasonable one that does
not prejudice habeas petitioners.
B
If treated according to their substance rather than their
label, Rule 59(e) motions would still have “an unquestionably
valid role to play” in habeas cases. Gonzalez, 545 U. S., at
534. The construction of AEDPA in Gonzalez did not doom
the Rule 60(b) motion at issue in that case. Although def-
cient for other reasons, that motion challenged “a nonmerits
aspect of the frst federal habeas proceeding,” the denial of
the habeas petition on timeliness grounds. Ibid. That sort
of claim is not the equivalent of a habeas claim. It does not
assert a federal basis for relief from the state-court judg-
ment; rather, it seeks to cure a “defect” in the federal habeas
proceeding itself. Id., at 532.
Cite
as: 590 U. S. 504 (2020)
535
Alito, J., dissenting
Rule 59(e) motions can do the same. Through that Rule,
a
petitioner can fag manifest errors in a district court's ap-
plication of AEDPA's statute of limitations, AEDPA's ex-
haustion requirement, or the rules of procedural default.
See Webb v. Davis, 940 F. 3d 892, 898 (CA5 2019) (per
curiam) (adding “the district court's denial of funding, the
district court's dismissal of claims without conducting an
evidentiary hearing, . . . the district court's failure to consider
claims presented in the habeas application,” and “the denial
of a claim based on a valid appeal waiver” (internal quotation
marks omitted)). These challenges relate only to a petition-
er's ability to assert a claim, not the merits of the claim itself.
Under Gonzalez, a petitioner could seek reconsideration of
them unencumbered by § 2244(b).
That is not what Banister sought. In substance, his Rule
59(e) motion was simply a repackaged version of his petition,
and since the Fifth Circuit had not authorized him to fle it,
the District Court had no jurisdiction to consider it. See
Burton v. Stewart, 549 U. S. 147, 153 (2007) (per curiam).
V
The question remains whether Banister's Rule 59(e) mo-
tion tolled his appeal deadline. Under 28 U. S. C. § 2107(a),
the Fifth Circuit could hear his appeal only if he fled
it within 30 days of the District Court's judgment. See
Hamer v. Neighborhood Housing Servs. of Chicago, 583 U. S.
17, 19 (2017). During that time, Banister fled his Rule 59(e)
motion, but he did not fle his appeal until 66 days after the
court denied his habeas petition.
Appellate Rule 4(a) provides that “the time to fle an ap-
peal runs for all parties from the entry of the order disposing
of,” among other things, a Rule 59(e) motion. Fed. Rule
App. Proc. 4(a)(4)(A)(iv). Not on that list: successive habeas
petitions. Since that is what Banister's Rule 59(e) motion
was in substance, it did not toll his appeal deadline.
536 B
ANISTER v. DAVIS
Alito, J., dissenting
Banister contends that, even if his Rule 59(e) motion con-
stituted
a habeas petition, the simple act of fling it gave him
more time to appeal. He points to the statement in Artuz
v. Bennett, 531 U. S. 4 (2000), that an application is commonly
regarded as having been “ `fled' ” if “it is delivered to, and
accepted by, the appropriate court offcer for placement into
the offcial record.” Id., at 8. Under this defnition, he ar-
gues, his motion was fled, and therefore, the time to take an
appeal was tolled until it was denied.
This argument fails because the timeliness of Banister's
appeal does not depend on whether what Banister labeled a
Rule 59(e) motion was “fled” in the District Court. Under
Appellate Rule 4(a), the time to appeal runs from the date
when the district court fnally disposes of a motion falling
within one of six categories, including motions to alter or
amend the judgment under Rule 59. And whether a motion
falls into one of those categories depends on the substance
of the motion, not the label that is affxed to it. See, e. g.,
Budinich v. Becton Dickinson & Co., 486 U. S. 196, 199–200,
203 (1988) (a motion for attorney's fees is not equivalent to a
Rule 59(e) motion and did not toll the time to appeal); State
Nat. Ins. Co. v. County of Camden, 824 F. 3d 399, 410 (CA3
2016); Yost v. Stout, 607 F. 3d 1239, 1243 (CA10 2010); Bor-
rero v. Chicago, 456 F. 3d 698, 700 (CA7 2006); Moody Nat.
Bank of Galveston v. GE Life & Annuity Assurance Co., 383
F. 3d 249, 251 (CA5 2004); Jones v. UNUM Life Ins. Co. of
America, 223 F. 3d 130, 136 (CA2 2000). Thus, to toll the
time to appeal, Banister's motion had to be a motion to alter
or amend, and because § 2244(b) dictates that his motion be
treated as a habeas petition, it cannot be allowed to toll the
time to appeal.
***
I would hold that a Rule 59(e) motion that constitutes a
second or successive habeas petition is subject to § 2244(b)
and that such a motion does not toll the time to appeal. I
Cite
as: 590 U. S. 504 (2020)
537
Alito, J., dissenting
therefore conclude that the Fifth Circuit was correct to dis-
miss
Banister's untimely appeal. Because the Court holds
to the contrary, I respectfully dissent.
538 OCTOBER
TERM, 2019
Syllabus
THOLE et al. v. U. S. BANK N. A. et al.
certiorari
to the united states court of appeals for
the eighth circuit
No. 17–1712. Argued January 13, 2020—Decided June 1, 2020
Plaintiffs James Thole and Sherry Smith are retired participants in U. S.
Bank's defned-beneft retirement plan, which guarantees them a fxed
payment each month regardless of the plan's value or its fduciaries'
good or bad investment decisions. Both have been paid all of their
monthly pension benefts so far and are legally and contractually enti-
tled to those payments for the rest of their lives. Nevertheless, they
fled a putative class-action suit against U. S. Bank and others (collec-
tively, U. S. Bank) under the Employee Retirement Income Security Act
of 1974 (ERISA), alleging that the defendants violated ERISA's duties
of loyalty and prudence by poorly investing the plan's assets. They
request the repayment of approximately $750 million to the plan in
losses suffered due to mismanagement; injunctive relief, including re-
placement of the plan's fduciaries; and attorney's fees. The District
Court dismissed the case, and the Eighth Circuit affrmed on the ground
that the plaintiffs lack statutory standing.
Held: Because Thole and Smith have no concrete stake in the lawsuit, they
lack Article III standing. See Lujan v. Defenders of Wildlife, 504 U. S.
555, 560–561. Win or lose, they would still receive the exact same
monthly benefts they are already entitled to receive.
None of the plaintiffs' arguments suffces to establish Article III
standing. First, the plaintiffs rely on a trust analogy in arguing that
an ERISA participant has an equitable or property interest in the plan
and that injuries to the plan are therefore injuries to the participants.
But participants in a defned-beneft plan are not similarly situated to
the benefciaries of a private trust or to participants in a defned-
contribution plan, and they possess no equitable or property interest in
the plan, see Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 439–441.
Second, the plaintiffs cannot assert representative standing based on
injuries to the plan where they themselves have not “suffered an injury
in fact,” Hollingsworth v. Perry, 570 U. S. 693, 708, or been legally or
contractually appointed to represent the plan. Third, the fact that
ERISA affords all participants—including defned-beneft plan partici-
pants—a cause of action to sue does not satisfy the injury-in-fact re-
quirement here. “Article III standing requires a concrete injury even
in the context of a statutory violation.” Spokeo, Inc. v. Robins, 578
Cite
as: 590 U. S. 538 (2020)
539
Syllabus
U. S. 330, 341. Fourth, the plaintiffs contend that meaningful regula-
ti
on of plan fduciaries is possible only if they may sue to target per-
ceived fduciary misconduct. But this Court has long rejected that ar-
gument for Article III standing, see Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U. S.
464, 489, and defned-beneft plans are regulated and monitored in multi-
ple ways.
The plaintiffs' amici assert that defned-beneft plan participants have
standing to sue if the plan's mismanagement was so egregious that it
substantially increased the risk that the plan and the employer would
fail and be unable to pay the participants' future benefts. The plain-
tiffs do not assert that theory of standing here, nor did their complaint
allege that level of mismanagement. Pp. 541–547.
873 F. 3d 617, affrmed.
Kavanaugh, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, and Gorsuch, JJ., joined. Thomas, J., fled a
concurring opinion, in which Gorsuch, J., joined, post, p. 547. Soto-
mayor, J., fled a dissenting opinion, in which Ginsburg, Breyer, and
Kagan, JJ., joined, post, p. 549.
Peter K. Stris argued the cause for petitioners. With him
on the briefs were Brendan S. Maher, Rachana A. Pathak,
Douglas D. Geyser, John Stokes, Karen L. Handorf, Michelle
C. Yau, and Mary J. Bortscheller.
Sopan Joshi argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were
So l ici tor General Francisco, Depu ty So l ici to r General
Kneedler, and G. William Scott.
Joseph R. Palmore argued the cause for respondents.
With him on the brief were Deanne E. Maynard, James R.
Sigel, Stephen P. Lucke, and Andrew Holly.*
*Briefs of amici curiae urging reversal were fled for AARP et al. by
Dara S. Smith and William Alvarado Rivera; for Law Professors by Erin
M. Riley, Matt Gerend, and David S. Preminger; for the Pension Rights
Center by Elizabeth Hopkins and Karen W. Ferguson; and for Public Citi-
zen by Nandan M. Joshi and Scott L. Nelson.
Briefs of amici curiae urging affrmance were fled for the Chamber of
Commerce of the United States of America et al. by Andrew J. Pincus,
Brian D. Netter, Nancy G. Ross, Jed W. Glickstein, Daryl Joseffer, An-
540 TH
OLE v. U. S. BANK N. A.
Opinion of the Court
Justice Kavanaugh delivered the opinion of the Court.
T
o establish standing under Article III of the Constitution,
a plaintiff must demonstrate (1) that he or she suffered an
injury in fact that is concrete, particularized, and actual or
imminent, (2) that the injury was caused by the defendant,
and (3) that the injury would likely be redressed by the re-
quested judicial relief. See Lujan v. Defenders of Wildlife,
504 U. S. 555, 560–561 (1992).
Plaintiffs James Thole and Sherry Smith are two retired
participants in U. S. Bank's retirement plan. Of decisive
importance to this case, the plaintiffs' retirement plan is a
defned-beneft plan, not a defned-contribution plan. In a
defned-beneft plan, retirees receive a fxed payment each
month, and the payments do not fuctuate with the value of
the plan or because of the plan fduciaries' good or bad in-
vestment decisions. By contrast, in a defned-contribution
plan, such as a 401(k) plan, the retirees' benefts are typically
tied to the value of their accounts, and the benefts can turn
on the plan fduciaries' particular investment decisions. See
Beck v. PACE Int'l Union, 551 U. S. 96, 98 (2007); Hughes
Aircraft Co. v. Jacobson, 525 U. S. 432, 439–440 (1999).
As retirees and vested participants in U. S. Bank's defned-
beneft plan, Thole receives $2,198.38 per month, and Smith
receives $42.26 per month, regardless of the plan's value at
any one moment and regardless of the investment decisions
of the plan's fduciaries. Thole and Smith have been paid all
of their monthly pension benefts so far, and they are legally
and contractually entitled to receive those same monthly
payments for the rest of their lives.
Even though the plaintiffs have not sustained any mone-
tary injury, they fled a putative class-action suit against
thony F. Shelley, and Theresa S. Gee; for the New England Legal Founda-
tion by Benjamin G. Robbins and Martin J. Newhouse; and for the Wash-
ington Legal Foundation by Richard A. Samp and Cory L. Andrews.
Thomas J. Ward and Amy C. Chai fled a brief for the National Associa-
tion of Home Builders of the United States as amicus curiae.
Cite
as: 590 U. S. 538 (2020)
541
Opinion of the Court
U. S. Bank and others (collectively, U. S. Bank) for alleged
mismanagement
of the defned-beneft plan. The alleged
mismanagement occurred more than a decade ago, from 2007
to 2010. The plaintiffs sued under ERISA, the aptly named
Employee Retirement Income Security Act of 1974, 88 Stat.
829, as amended, 29 U. S. C. § 1001 et seq. The plaintiffs
claimed that the defendants violated ERISA's duties of loy-
alty and prudence by poorly investing the assets of the plan.
The plaintiffs requested that U. S. Bank repay the plan
approximately $750 million in losses that the plan allegedly
suffered. The plaintiffs also asked for injunctive relief, in-
cluding replacement of the plan's fduciaries. See ERISA
§§ 502(a)(2), (3), 29 U. S. C. §§ 1132(a)(2), (3).
No small thing, the plaintiffs also sought attorney's fees.
In the District Court, the plaintiffs' attorneys requested at
least $31 million in attorney's fees.
The U. S. District Court for the District of Minnesota dis-
missed the case, and the U. S. Court of Appeals for the
Eighth Circuit affrmed on the ground that the plaintiffs lack
statutory standing. 873 F. 3d 617 (2017). We granted cer-
tiorari. 588 U. S. 919 (2019).
We affrm the judgment of the U. S. Court of Appeals for
the Eighth Circuit on the ground that the plaintiffs lack Arti-
cle III standing. Thole and Smith have received all of their
monthly beneft payments so far, and the outcome of this suit
would not affect their future beneft payments. If Thole and
Smith were to lose this lawsuit, they would still receive the
exact same monthly benefts that they are already slated to
receive, not a penny less. If Thole and Smith were to win
this lawsuit, they would still receive the exact same monthly
benefts that they are already slated to receive, not a penny
more. The plaintiffs therefore have no concrete stake in
this lawsuit. To be sure, their attorneys have a stake in
the lawsuit, but an “interest in attorney's fees is, of course,
insuffcient to create an Article III case or controversy
where none exists on the merits of the underlying claim.”
542 TH
OLE v. U. S. BANK N. A.
Opinion of the Court
Lewis v. Continental Bank Corp., 494 U. S. 472, 480 (1990);
see
Steel Co. v. Citizens for Better Environment, 523 U. S.
83, 107 (1998) (same). Because the plaintiffs themselves
have no concrete stake in the lawsuit, they lack Article III
standing.
***
If Thole and Smith had not received their vested pension
benefts, they would of course have Article III standing to
sue and a cause of action under ERISA § 502(a)(1)(B) to re-
cover the benefts due to them. See 29 U. S. C. § 1132(a)
(1)(B). But Thole and Smith have received all of their
monthly pension benefts so far, and they will receive those
same monthly payments for the rest of their lives.
To nonetheless try to demonstrate their standing to chal-
lenge alleged plan mismanagement, the plaintiffs have ad-
vanced four alternative arguments.
First, analogizing to trust law, Thole and Smith contend
that an ERISA defned-beneft plan participant possesses an
equitable or property interest in the plan, meaning in es-
sence that injuries to the plan are by defnition injuries to
the plan participants. Thole and Smith contend, in other
words, that a plan fduciary's breach of a trust-law duty of
prudence or duty of loyalty itself harms ERISA defned-
beneft plan participants, even if the participants themselves
have not suffered (and will not suffer) any monetary losses.
The basic faw in the plaintiffs' trust-based theory of
standing is that the participants in a defned-beneft plan are
not similarly situated to the benefciaries of a private trust
or to the participants in a defned-contribution plan. See
Varity Corp. v. Howe, 516 U. S. 489, 497 (1996) (trust law
informs but does not control interpretation of ERISA). In
the private trust context, the value of the trust property and
the ultimate amount of money received by the benefciaries
will typically depend on how well the trust is managed, so
every penny of gain or loss is at the benefciaries' risk. By
contrast, a defned-beneft plan is more in the nature of a
Cite
as: 590 U. S. 538 (2020)
543
Opinion of the Court
contract. The plan participants' benefts are fxed and will
not
change, regardless of how well or poorly the plan is man-
aged. The benefts paid to the participants in a defned-
beneft plan are not tied to the value of the plan. Moreover,
the employer, not plan participants, receives any surplus left
over after all of the benefts are paid; the employer, not plan
participants, is on the hook for plan shortfalls. See Beck,
551 U. S., at 98–99. As this Court has stated before, plan
participants possess no equitable or property interest in the
plan. See Hughes Aircraft Co., 525 U. S., at 439–441; see
also LaRue v. DeWolff, Boberg & Associates, Inc., 552 U. S.
248, 254–256 (2008). The trust-law analogy therefore does
not ft this case and does not support Article III standing for
plaintiffs who allege mismanagement of a defned-beneft
plan.
Second, Thole and Smith assert standing as representa-
tives of the plan itself. But in order to claim “the interests
of others, the litigants themselves still must have suffered
an injury in fact, thus giving ” them “a suffciently concrete
interest in the outcome of the issue in dispute.” Hollings-
worth v. Perry, 570 U. S. 693, 708 (2013) (internal quotation
marks omitted); cf. Gollust v. Mendell, 501 U. S. 115, 125–
126 (1991) (suggesting that shareholder must “maintain some
continuing fnancial stake in the litigation” in order to have
Article III standing to bring an insider trading suit on behalf
of the corporation); Craig v. Boren, 429 U. S. 190, 194–195
(1976) (vendor who “independently” suffered an Article III
injury in fact could then assert the rights of her customers).
The plaintiffs themselves do not have a concrete stake in
this suit.
The plaintiffs point to the Court's decisions upholding the
Article III standing of assignees—that is, where a party's
right to sue has been legally or contractually assigned to
another party. But here, the plan's claims have not been
legally or contractually assigned to Thole or Smith. Cf.
Sprint Communications Co. v. APCC Services, Inc., 554
544 TH
OLE v. U. S. BANK N. A.
Opinion of the Court
U. S. 269, 290 (2008); Vermont Agency of Natural Resources
v
. United States ex rel. Stevens, 529 U. S. 765, 771–774 (2000)
(qui tam statute makes a relator a partial assignee and
“gives the relator himself an interest in the lawsuit”) (em-
phasis deleted). The plaintiffs' invocation of cases involving
guardians, receivers, and executors falls short for basically
the same reason. The plaintiffs have not been legally or
contractually appointed to represent the plan.
Third, in arguing for standing, Thole and Smith stress that
ERISA affords the Secretary of Labor, fduciaries, benefci-
aries, and participants—including participants in a defned-
beneft plan—a general cause of action to sue for restoration
of plan losses and other equit able rel ief. See ERISA
§§ 502(a)(2), (3), 29 U. S. C. §§ 1132(a)(2), (3). But the cause
of action does not affect the Article III standing analysis.
This Court has rejected the argument that “a plaintiff auto-
matically satisfes the injury-in-fact requirement whenever a
statute grants a person a statutory right and purports to
authorize that person to sue to vindicate that right.”
Spokeo, Inc. v. Robins, 578 U. S. 330, 341 (2016); see Raines
v. Byrd, 521 U. S. 811, 820, n. 3 (1997). The Court has em-
phasized that “Article III standing requires a concrete injury
even in the context of a statutory violation.” Spokeo, 578
U. S., at 341. Here, the plaintiffs have failed to plausibly
and clearly allege a concrete injury.
1
Fourth, Thole and Smith contend that if defned-beneft
plan participants may not sue to target perceived fduciary
misconduct, no one will meaningfully regulate plan fduciar-
ies. For that reason, the plaintiffs suggest that defned-
beneft plan participants must have standing to sue. But
this Court has long rejected that kind of argument for Arti-
cle III standing. See Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U. S. 464, 489 (1982) (the “ `assumption that if respond-
1
To be clear, our decision today does not concern suits to obtain plan
information. See, e. g., ERISA § 502(a)(1)(A), 29 U. S. C. § 1132(a)(1)(A).
Cite
as: 590 U. S. 538 (2020)
545
Opinion of the Court
ents have no standing to sue, no one would have standing,
is
not a reason to fnd standing ' ”) (quoting Schlesinger v.
Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974)).
In any event, the argument rests on a faulty premise in
this case because defned-beneft plans are regulated and
monitored in multiple ways. To begin with, employers and
their shareholders often possess strong incentives to root out
fduciary misconduct because the employers are entitled to
the plan surplus and are often on the hook for plan shortfalls.
Therefore, about the last thing a rational employer wants
or needs is a mismanaged retirement plan. Cf. ERISA
§ 4062(a), 29 U. S. C. § 1362(a). Moreover, ERISA expressly
authorizes the Department of Labor to enforce ERISA's f-
duciary obligations. See ERISA § 502(a)(2), 29 U. S. C.
§ 1132(a)(2). And the Department of Labor has a substantial
motive to aggressively pursue fduciary misconduct, particu-
larly to avoid the fnancial burden of failed defned-beneft
plans bei ng backloaded onto the Federa l Gover nment.
When a defned-beneft plan fails and is unable to pay bene-
fts to retirees, the federal Pension Beneft Guaranty Corpo-
ration is required by law to pay the vested pension benefts
of the retirees, often in full. The Department of Labor is
well positioned to understand the relationship between plan
failure and the PBGC because, by law, the PBGC operates
within the Department of Labor, and the Secretary of Labor
chairs the Board of the PBGC. See ERISA §§ 4002(a), (d),
29 U. S. C. §§ 1302(a), (d). On top of all that, fduciaries (in-
cluding trustees who are fduciaries) can sue other fduciar-
ies—and they would have good reason to sue if, as Thole and
Smith posit, one fduciary were using the plan's assets as a
“personal piggybank.” Brief for Petitioners 2. In addition,
depending on the nature of the fduciary misconduct, state
and federal criminal laws may apply. See, e. g., 18 U. S. C.
§§ 664, 1954; ERISA § 514(b)(4), 29 U. S. C. § 1144(b)(4). In
short, under ERISA, fduciaries who manage defned-beneft
plans face a regulatory phalanx.
546 TH
OLE v. U. S. BANK N. A.
Opinion of the Court
In sum, none of the plaintiffs' four theories supports their
Ar
ticle III standing in this case.
One last wrinkle remains. According to the plaintiffs'
amici, plan participants in a defned-beneft plan have stand-
ing to sue if the mismanagement of the plan was so egregious
that it substantially increased the risk that the plan and the
employer would fail and be unable to pay the participants'
future pension benefts. Cf. Clapper v. Amnesty Int'l USA,
568 U. S. 398, 414, n. 5 (2013); Lee v. Verizon Communica-
tions, Inc., 837 F. 3d 523, 545–546 (CA5 2016); David v. Al-
phin, 704 F. 3d 327, 336–338 (CA4 2013). But the plaintiffs
do not assert that theory of standing in this Court. In any
event, the plaintiffs' complaint did not plausibly and clearly
claim that the alleged mismanagement of the plan substan-
tially increased the risk that the plan and the employer
would fail and be unable to pay the plaintiffs' future pension
benefts. It is true that the plaintiffs' complaint alleged that
the plan was underfunded for a period of time. But a bare
allegation of plan underfunding does not itself demonstrate
a substantially increased risk that the plan and the employer
would both fail. Cf. LaRue, 552 U. S., at 255 (“Misconduct
by the administrators of a defned beneft plan will not affect
an individual's entitlement to a defned beneft unless it cre-
ates or enhances the risk of default by the entire plan”).
2
2
Even if a defned-beneft plan is mismanaged into plan termination, the
federal PBGC by law acts as a backstop and covers the vested pension
benefts up to a certain amount and often in full. For example, if the plan
and the employer in this case were to fail, the PBGC would be required
to pay these two plaintiffs all of their vested pension benefts in full. See
ERISA §§ 4022(a), (b), 29 U. S. C. §§ 1322(a), (b); Tr. of Oral Arg. 18–19;
see also Congressional Research Service, Pension Beneft Guaranty Corpo-
ration (PBGC): A Primer 1 (2019); PBGC, General FAQs About PBGC,
https://www.pbgc.gov/about/faq/general-faqs-about-pbgc. Any increased-
risk-of-harm theory of standing therefore might not be available for plan
participants whose benefts are guaranteed in full by the PBGC. But we
need not decide that question in this case.
Cite
as: 590 U. S. 538 (2020)
547
Thomas, J., concurring
***
Cour
ts sometimes make standing law more complicated
than it needs to be. There is no ERISA exception to Arti-
cle III. And under ordinary Article III standing analysis,
the plaintiffs lack Article III standing for a simple, common-
sense reason: They have received all of their vested pension
benefts so far, and they are legally entitled to receive the
same monthly payments for the rest of their lives. Winning
or losing this suit would not change the plaintiffs' monthly
pension benefts. The plaintiffs have no concrete stake in
this dispute and therefore lack Article III standing. We af-
frm the judgment of the U. S. Court of Appeals for the
Eighth Circuit.
It is so ordered.
Justice Thomas, with whom Justice Gorsuch joins,
concurring.
I agree with the Court's opinion, which correctly applies
our precedents and concludes that petitioners lack standing.
I also agree that “[c]ourts sometimes make standing law
more complicated than it needs to be.” Ante, at 547. I
write separately to observe that by requiring us to engage
with petitioners' analogies to trust law, our precedents un-
necessarily complicate this case.
The historical restrictions on standing provide a simpler
framework. Article III vests “[t]he judicial Power of the
United States” in the federal courts and specifes that it shall
extend to enumerated categories of “Cases” and “Controver-
sies.” §§ 1, 2. “To understand the limits that standing im-
poses on `the judicial Power,' . . . 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)); see also
Muskrat v. United States, 219 U. S. 346, 356–357 (1911) (ob-
serving that the “judicial power with the right to determine
548 TH
OLE v. U. S. BANK N. A.
Thomas, J., concurring
`cases' and `controversies' ” has long referred to “suit[s] insti-
tuted
according to the regular course of judicial procedure”).
“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). Rights were typically divided
into private rights and public rights. Private rights are
those “ `belonging to individuals, considered as individuals.' ”
Ibid. (quoting 3 W. Blackstone, Commentaries *2); see also
Woolhandler & Nelson, Does History Defeat Standing Doc-
trine? 102 Mich. L. Rev. 689, 693 (2004). Public rights are
“owed `to the whole community, considered as a community,
in its social aggregate capacity.' ” Spokeo, supra, at 345
(Thomas, J., concurring) (quoting 4 Blackstone, supra, at *5);
see also Woolhandler & Nelson, supra, at 693.
Petitioners claim violations of private rights under the
Employee Retirement Income Security Act of 1974 (ERISA).
“In a suit for the violation of a private right, courts histori-
cally presumed that the plaintiff suffered a de facto injury
[if] his personal, legal rights [were] invaded.” Spokeo,
supra, at 344 (Thomas, J., concurring). In this case, how-
ever, none of the rights identifed by petitioners belong to
them. The fduciary duties created by ERISA are owed
to the plan, not petitioners. See 29 U. S. C. §§ 1104(a)(1),
1105(a), 1106(a)(1), 1106(b), 1109(a). As participants in a de-
fned beneft plan, petitioners have no legal or equitable own-
ership interest in the plan assets. See ante, at 543. There
has been no assignment of the plan's rights by ERISA or
any contract. See ante, at 543–544. And petitioners can-
not rely on ERISA § 502(a). Although it establishes certain
causes of action, it creates no private right. See § 1132(a).
There is thus no need to analogize petitioners' complaint
to trust law actions, derivative actions, qui tam actions, or
anything else. We need only recognize that the private
rights that were allegedly violated do not belong to petition-
ers under ERISA or any contract.
Cite
as: 590 U. S. 538 (2020)
549
Sotomayor, J., dissenting
Our ERISA precedents have especially complicated the
questi
on of standing in this case due to their misinterpreta-
tions of the statute. I continue to object to this Court's
practice of using the common law of trusts as the “starting
point” for interpreting ERISA. Varity Corp. v. Howe, 516
U. S. 489, 497 (1996). “[I]n `every case involving construc-
tion of a statute,' the `starting point . . . is the language
itself. ' ” Id., at 528 (Thomas, J., dissenti ng) (quoti ng
Ernst & Ernst v. Hochfelder, 425 U. S. 185, 197 (1976); ellip-
sis in original). This is especially true for ERISA because
its “statutory defnition of a fduciary departs from the com-
mon law.” Varity, supra, at 528. The Court correctly ap-
plies Varity here, but in an appropriate case, we should re-
consider our reliance on loose analogies in both our standing
and ERISA jurisprudence.
Justice Sotomayor, with whom Justice Ginsburg, Jus-
tice Breyer, and Justice Kagan join, dissenting.
The Court holds that the Constitution prevents millions of
pensioners from enforcing their rights to prudent and loyal
management of their retirement trusts. Indeed, the Court
determines that pensioners may not bring a federal lawsuit
to stop or cure retirement-plan mismanagement until their
pensions are on the verge of default. This conclusion con-
ficts with common sense and longstanding precedent.
I
A
ERISA
1
protects “the interests of participants in em-
ployee beneft plans and their benefciaries.” 29 U. S. C.
§ 1001(b). Chief among these safeguards is that “all assets
of an employee beneft plan” must “be held in trust by one
or more trustees” for “the exclusive purposes of providing
1
Employee Retirement Income Security Act of 1974, 88 Stat. 829, as
amended, 29 U. S. C. § 1001 et seq.
550 TH
OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
benefts to participants in the plan and their benefciaries.”
§§
1103(a), (c)(1). A retirement plan's assets “shall never
inure to the beneft of any employer.” § 1103(c)(1).
Because ERISA requires that retirement-plan assets be
held in trust, it imposes on the trustees and other plan man-
agers “ `strict standards' ” of conduct “ `derived from the com-
mon law of trusts.' ” Fifth Third Bancorp v. Dudenhoeffer,
573 U. S. 409, 416 (2014) (quoting Central States, Southeast &
Southwest Areas Pension Fund v. Central Transport, Inc.,
472 U. S. 559, 570 (1985)). These “fduciary duties” obligate
the trustees and managers to act prudently and loyally, look-
ing out solely for the best interest of the plan's participants
and beneficiaries—typically, the employees who sacrifice
wages today to secure their retirements tomorrow. §§ 1104,
1106. Not surprisingly, ERISA fduciaries owe duties not
only to the plan they manage, but also “to the benefciaries”
and participants for whom they manage it. Harris Trust
and Sav. Bank v. Salomon Smith Barney Inc., 530 U. S. 238,
241–242, 250 (2000).
If a fduciary fouts these stringent standards, ERISA pro-
vides a cause of action and makes the fduciary personally
liable. §§ 1109, 1132. The United States Secretary of
Labor, a plan participant or benefciary, or another fduciary
may sue for “appropr iate rel ief under sec ti on 1109. ”
§ 1132(a)(2); see also § 1132(a)(3) (permitting participants,
benefciaries, or fduciaries to bring suit “to enjoin any act
or practice which violates any provision of this subchapter
or the terms of the plan”). Section 1109's remedies include
restoration of lost assets, disgorgement of ill-gained profts,
and removal of the offending fduciaries. § 1109(a).
B
Petitioners allege that, as of 2007, respondents breached
their fduciary duty of loyalty by investing pension-plan
assets in respondents' own mutual funds and by paying
themselves excessive management fees. (Petitioners fur-
Cite
as: 590 U. S. 538 (2020)
551
Sotomayor, J., dissenting
ther contend that this self-dealing persists today.) Accord-
i
ng to the complaint, the fduciaries also made imprudent in-
vestments that allowed them to manipulate accounting rules,
boost their reported incomes, infate their stock prices, and
exercise lucrative stock options to their own (and their share-
holders') beneft.
Then came the Great Recession. In 2008, the retirement
plan lost $1.1 billion, allegedly $748 million more than a prop-
erly managed plan would have lost. So some of the plan's
participants sued under 29 U. S. C. § 1132(a) for the relief
Congress contemplated: restoration of losses, disgorgement
of respondents' ill-gotten profts and fees, removal of the
disloyal fduciaries, and an injunction to stop the ongoing
breaches. Faced with this lawsuit, respondents returned to
the plan about $311 million (less than half of what the plan
had lost) and none of the profts respondents had unlawfully
gained. See 873 F. 3d 617, 630–631 (CA8 2018).
II
In the Court's words, the question here is whether peti-
tioners have alleged a “concrete” injury to support their con-
stitutional standing to sue. Ante, at 541–542. They have
for at least three independent reasons.
A
First, petitioners have an interest in their retirement
plan's fnancial integrity, exactly like private trust benefci-
aries have in protecting their trust. By alleging a $750 mil-
lion injury to that interest, petitioners have established
their standing.
1
This Court typically recognizes an “injury in fact” where
the alleged harm “has a close relationship to” one “that has
traditionally been regarded as providing a basis for a lawsuit
in English or American courts.” Spokeo, Inc. v. Robins, 578
U. S. 330, 341 (2016). Thus, the Court acknowledges that
552 TH
OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
“private trust” benefciaries have standing to protect the
assets
in which they have an “equitable” interest. Ante, at
542. The critical question, then, is whether petitioners have
an equitable interest in their retirement plan's assets even
though their pension payments are fxed.
They do. ERISA expressly required the creation of a
trust in which petitioners are the benefciaries: “[A]ll assets”
of the plan “shall be held in trust” for petitioners' “exclusive”
beneft. 29 U. S. C. §§ 1103(a), (c)(1); see also § 1104(a)(1).
2
These requirements exist regardless whether the employer
establishes a defned-beneft or defned-contribution plan.
§ 1101(a). Similarly, the Plan Document governing petition-
ers' defned-beneft plan states that, at “ `all times,' ” all plan
assets “ `shall' ” be in a “ `trust fund' ” managed for the partic-
ipants' and benefciaries' “ `exclusive beneft.' ” App. 60–61.
The Plan Document also gives petitioners a residual interest
in the trust fund's assets: It instructs that, “[u]pon termina-
tion of the Plan, each Participant [and] Benefciary” shall look
to “the assets of the [trust f]und” to “provide the benefts
otherwise apparently promised in this Plan.” Record in
No. 13–cv–2687 (D Minn.), Doc. 107–1, p. 75. This arrange-
ment confers on the “participants [and] benefciaries” of a
defned-beneft plan an equitable stake, or a “common inter-
est,” in “the fnancial integrity of the plan.” Massachusetts
Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 142, n. 9 (1985).
Petitioners' equitable interest fnds ample support in tradi-
tional trust law. “The creation of a trust,” like the one here,
provides benefciaries “an equitable interest in the subject
matter of the trust.” Restatement (Second) of Trusts § 74,
Comment a, p. 192 (1957); see Blair v. Commissioner, 300
2
Generally, “a trust is created when one person (a `settlor' or `grantor')
transfers property to a third party (a `trustee') to administer for the bene-
ft of another (a `benefciary').” North Carolina Dept. of Revenue v. Kim-
berley Rice Kaestner 1992 Family Trust, 588 U. S. 262, 265 (2019); see
also Restatement (Second) of Trusts § 2 (1957). Neither the Court nor
respondents dispute that petitioners' pension fund meets these elements.
Cite
as: 590 U. S. 538 (2020)
553
Sotomayor, J., dissenting
U. S. 5, 13 (1937). Courts have long recognized that this eq-
uit
able interest gives benefciaries a basis to “have a breach
of trust enjoined and . . . redress[ed].” Ibid.; see also
Spokeo, 578 U. S., at 341. That is, a benefciary's equitable
interest allows her to “maintain a suit” to “compel the
trustee to perform his duties,” to “enjoin the trustee from
committing a breach of trust,” to “compel the trustee to
redress a breach of trust,” and to “remove the trustee.”
Restatement (Second) of Trusts § 199; see also id., § 205
(benefciary may require a trustee to restore “any loss or
depreciation in value of the trust estate” and “any proft
made by [the trustee] through the breach of trust”).
3
So too here. Because respondents' alleged mismanage-
ment lost the pension fund hundreds of millions of dollars,
petitioners have stated an injury to their equitable property
interest in that trust.
2
The Court, by contrast, holds that participants and benef-
ciaries in a defned-beneft plan have no stake in their plan's
assets. Ante, at 542–543. In other words, the Court treats
benefciaries as mere bystanders to their own pensions.
That is wrong on several scores. For starters, it creates
a paradox: In one breath, the Court determines that petition-
ers have “no equitable or property interest” in their plan's
assets, ante, at 543; in another, the Court concedes that peti-
tioners have an enforceable interest in receiving their
“monthly pension benefts,” ante, at 540. Benefts paid from
where? The plan's assets, obviously. Precisely because
petitioners have an interest in payments from their trust
fund, they have an interest in the integrity of the assets
3
Even contingent and discretionary benefciaries (those who might not
ever receive any assets from the trust) can sue to protect the trust absent
a personal fnancial loss (or an imminent risk of loss). See A. Hess,
G. Bogert, & G. Bogert, Law of Trusts and Trustees § 871 (3d ed. Supp.
2019) (Bogert & Bogert) (listing cases).
554 TH
OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
from which those payments come. See Russell, 473 U. S.,
at
142, n. 9.
The Court's contrary conclusion is unrecognizable in the
fundamental trust law that both ERISA and the Plan Docu-
ment expressly incorporated. If the participants and bene-
fciaries in a defned-beneft plan did not have equitable title
to the plan's assets, then no one would. Yet that would
mean that no “trust” exists, contrary to the plain terms
of both ERISA and the Plan Document. See 29 U. S. C.
§ 1103(a); App. 60; see also n. 2, supra; Blair, 300 U. S., at 13;
Bogert & Bogert § 1; Restatement (Second) of Trusts § 74,
Comment a, at 192.
Recognizing this problem, the Court asserts that, despite
our case law, ERISA's text, and petitioners' Plan Document,
trust law is not relevant at all. The Court announces that
all “plaintiffs who allege mismanagement of a defned-beneft
plan,” regardless of their plan terms, cannot invoke a “trust-
law analogy” to “support Article III standing.” Ante, at 543.
That categorical conclusion has no basis in logic or law.
Logically, the Court's reasoning relies on tautology. To dis-
tinguish an ERISA trust fund from a private trust fund, the
Court observes that petitioners' payments have not “fuctu-
ate[d] with the value of the plan or because of the plan fdu-
ciaries' good or bad investment decisions” in the past, ante,
at 540, so petitioners will necessarily continue to receive full
payments “for the rest of their lives,” no matter the outcome
of this suit, ante, at 542. But that is circular: Petitioners
will receive benefts indefnitely because they receive bene-
fts now? The Court does not explain how the pension could
satisfy its monthly obligation if, as petitioners allege, the
plan fduciaries drain the pool from which petitioners' fxed
income streams fow.
Legally, the Court's analysis lists distinctions without a
difference. First, the Court writes that a trust promising
fxed payments is not a trust because the promise “will not
change, regardless of how well or poorly the [trust] is man-
Cite
as: 590 U. S. 538 (2020)
555
Sotomayor, J., dissenting
aged.” Ante, at 543. That does not follow (a promise of
payment
differs from an actual payment) and it does not dis-
prove a trust. Trusts vary in their terms, to be sure. See
Bogert & Bogert § 181 (“The settlor has great freedom in
the selection of the benefciaries and their interests”). But
regardless whether a trust creates a “present interest” in
“immediate enjoyment” of the trust property or “a future
interest” in “receiv[ing] trust assets or benefts at a later
time,” the benefciary “always” has an “equitable” stake.
Ibid.
Second, the Court states that “the employer, not plan par-
ticipants, receives any surplus left over after all of the bene-
fts are paid” and “the employer, not plan participants, is on
the hook for plan shortfalls.” Ante, at 543; see also ante,
at 545 (noting that “the federal Pension Beneft Guaranty
Corporation is required by law to pay” some benefts if a
plan fails). But that does not distinguish ERISA from
standard trust law, either. It does not matter that other
parties besides benefciaries may have a residual stake in
trust assets; a benefciary with a life-estate interest in pay-
ments from a trust still has an equitable interest. See Bog-
ert & Bogert § 706. Even life-benefciaries may “requir[e]”
the trustee “to pay the trust the amount necessary to place
the trust account in the position in which it would have been,
had the [trustee's fduciary] duty been performed.” Ibid.
If anything, petitioners' equitable interests are stronger than
those of their common-law counterparts; the Plan Document
provides petitioners a residual interest in the pension fund's
assets even after the trust terminates. See Record in No.
13–cv–2687, Doc. 107–1, at 75.
Nor is it relevant whether additional parties (including an
insurance carrier) are “on the hook” for plan shortfalls after
a loss occurs. Cf. ante, at 543, 545, 546, n. 2. The Court ap-
pears to conclude that insurance (or other protections to rem-
edy trust losses) would deprive benefciaries of their equita-
ble interests in their trusts. See ibid. But the Court cites
556 TH
OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
nothing supporting that proposition. To the contrary, it is
wel
l settled that benefciaries retain equitable interests in
trust assets even when those assets are insured or replen-
ished. See Bogert & Bogert § 599. Some States and trusts
require that the “property of a trust . . . be insured” or simi-
larly protected; indeed, some jurisdictions impose on trust-
ees a fduciary “duty to insure.” Ibid. (collecting authori-
ties). None of those authorities suggests that benefciaries
lose their equitable interests as a result, and none suggests
that the law excuses a fduciary's malfeasance simply because
other sources may help provide relief. The Court's opposing
view—that employer liability and insurance pardon a trust-
ee's wrongdoing from a benefciary's suit—has no support
in law.
Third, the Court draws a line between a trust and a con-
tract, ante, at 542–543, but this too is insignifcant here.
The Court declares that petitioners' pension plan “is more in
the nature of a contract,” ibid., but then overlooks that the
so-called contract creates a trust. The Plan Document ex-
pressly requires that petitioners' pension funds be held in a
“trust” exclusively for petitioners' beneft. App. 60–61.
The Court's statement that “the employer, not plan partici-
pants, receives any surplus left over after all of the benefts
are paid,” ante, at 543, actually proves that a trust exists.
The reason the employer does not receive any residual until
“after all of the benefts are paid,” ibid., is because the Plan
Document provides petitioners an enforceable residual inter-
est, Record in No. 13–cv–2687, Doc. 107–1, at 75. It is tell-
ing that the Court does not cite, let alone analyze, the “con-
tract” governing petitioners' trust fund.
Last, the Court cites inapposite case law. It asserts that
“this Court has stated” that “plan participants possess no
equitable or property interest in the plan.” Ante, at 543
(citing Hughes Aircraft Co. v. Jacobson, 525 U. S. 432 (1999),
and LaRue v. DeWolff, Boberg & Associates, Inc., 552 U. S.
248 (2008)). But precedent has said no such thing. Quite
Cite
as: 590 U. S. 538 (2020)
557
Sotomayor, J., dissenting
the opposite: Russell explained that defned-beneft-plan
benefciar
ies have a “common interest” in the “fnancial in-
tegrity” of their defned-beneft plan. 473 U. S., at 142, n. 9.
Neither Hughes nor LaRue suggests otherwise. Hughes
explained that a defned-beneft-plan benefciary does not
have “a claim to any particular asset that composes a part of
the plan's general asset pool.” 525 U. S., at 440. But that
statement concerned whether the benefciaries had a legal
right to extra payments after the plan's assets grew. Id.,
at 436–437. Whether a benefciary has a legal claim to pay-
ment when a plan gains money says nothing about whether
a benefciary has an equitable interest to restore assets when
a plan loses money. Hughes, in fact, invited a suit like peti-
tioners': The Court suggested that the plaintiffs could have
prevailed had they “allege[d] that [the employer] used any of
the assets for a purpose other than to pay its obligations to
the Plan's benefciaries.” Id., at 442–443. Equally telling
is that Hughes resolved the benefciaries' breach-of-fduciary
claims on the merits without doubting whether the plaintiffs
had standing to assert them. See id., at 443–446; Steel Co. v.
Citizens for Better Environment, 523 U. S. 83, 94–95 (1998)
(explaining this Court's independent duty to assure itself of
Article III standing).
LaRue is even less helpful to today's Court. That case
involved a defned-contribution plan, not a defned-beneft
plan. 552 U. S., at 250. It was about remedies, not rights.
See id., at 256. And it stated that although “individual inju-
ries” may occur from ERISA plan mismanagement, the stat-
utory provision at issue required that the remedy go to the
plan. Ibid. (discussing 29 U. S. C. § 1132(a)(2)). LaRue said
nothing about standing and nothing about ERISA's other
statutory remedies.
4
In fact, LaRue confrmed that ERISA
benefciaries like petitioners may sue fduciaries for “ `any
4
The Court expressly declined to address other relief like that provided
under § 1132(a)(3), see LaRue, 552 U. S., at 252, a provision that petitioners
invoke here.
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OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
proft which would have accrued to the [plan] if there had
been
no breach of trust,' ” 552 U. S., at 254, n. 4, or where
“fduciary breaches . . . impair the value of plan assets,” id.,
at 256. Because petitioners bring those kinds of claims,
LaRue supports their standing.
B
Second, petitioners have standing because a breach of
fduciary duty is a cognizable injury, regardless whether
that breach caused fnancial harm or increased a risk of
nonpayment.
1
A benefciary has a concrete interest in a fduciary's loyalty
and prudence. For over a century, trust law has provided
that breach of “a fduciary or trust relation” makes the
trustee “suable in equity.” Clews v. Jamieson, 182 U. S. 461,
480–481 (1901). That is because benefciaries have an en-
forceable “right that the trustee shall perform the trust in
accordance with the directions of the trust instrument and
the rules of equity.” Bogert & Bogert § 861; see also Re-
statement (Second) of Trusts § 199 (trust benefciary may
“maintain a suit” for breach of fduciary duty).
That interest is concrete regardless whether the benef-
ciary suffers personal fnancial loss. A benefciary may sue
a trustee for restitution or disgorgement, remedies that rec-
ognize the relevant harm as the trustee's wrongful gain.
Through restitution law, trustees are “subject to liability” if
they are unjustly enriched by a “ `violation of [a benefciary]'s
legally protected rights,' ” like a breach of fduciary duty.
Restatement (Third) of Restitution and Unjust Enrichment
§ 1, and Comment a, p. 3 (2010). Similarly, disgorgement
allows a benefciary to “stri[p]” the trustee of “a wrongful
gain.” Id., § 3, Comment a, at 22. Our Court drew on these
principles almost 200 years ago when it stated that a trust-
ee's breach of loyalty supports a cause of action “without any
further inquiry” into gain or loss to a trust or its benefciar-
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559
Sotomayor, J., dissenting
ies. Michoud v. Girod, 4 How. 503, 553 (1846); see also, e. g.,
i
d., at 556–557 (noting this rule's roots in “English courts of
chancery from an early day”); see also Magruder v. Drury,
235 U. S. 106, 120 (1914) (under “the principles governing the
duty of a trustee,” it “makes no difference that the [trust]
estate was not a loser in the transaction”); Bogert & Bogert
§ 543 (similar). Put another way, “traditional remedies” like
“unjust enrichment . . . are not contingent on a plaintiff 's
allegation of damages beyond the violation of his private
lega l r ight. ” Spokeo, 578 U. S., at 344 (Thomas, J.,
concurring).
Nor does it matter whether the benefciaries receive the
remedy themselves. A benefciary may require a trustee to
“restore” assets directly “to the trust fund.” Bogert & Bo-
gert § 861; see also Restatement (Second) of Trusts § 205.
In fact, because fduciary duties are so paramount, the rem-
edy need not involve money at all. A benefciary may sue
to “enjoin the trustee from committing a breach of trust”
and to “remove the trustee.” Id., § 199.
Congress built on this tradition by making plan fduciaries
expressly liable to restore to the plan wrongful profts and
any losses their breach caused, and by providing for injunc-
tive relief to stop the misconduct and remove the wrongdo-
ers. See 29 U. S. C. §§ 1109, 1132(a)(2), (3). In doing so,
Congress rejected the Court's statement that a “trust-law
analogy . . . does not” apply to “plaintiffs who allege misman-
agement of a defned-beneft plan.” Cf. ante, at 543. To the
contrary, ERISA imposes “trust-like fduciary standards,”
Varity Corp. v. Howe, 516 U. S. 489, 497 (1996), to “[r]e-
spon[d] to defciencies in prior law regulating [retirement]
plan fduciaries” and to provide even greater protections for
defned-beneft-plan benefciaries, Harris Trust, 530 U. S., at
241–242; see also Spokeo, 578 U. S., at 340–341 (historical and
congressionally recognized injuries often support standing).
Given all that history and ERISA's text, this Court itself
has noted, in the defned-beneft-plan context, “that when a
560 TH
OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
trustee” breaches “his fduciary duty to the benefciaries,”
the
“benefciaries may then maintain an action for restitution
. . . or disgorgement.” Harris Trust, 530 U. S., at 250.
Harris Trust confrms that ERISA incorporated “[t]he com-
mon law of trusts” to allow defned-beneft-plan benefciaries
to seek relief from fduciary breaches. Ibid.; see also id.,
at 241–242 (noting that certain ERISA provisions “supple-
men[t] the fduciary's general duty of loyalty to the plan's
benefciaries”).
5
2
The Court offers no reply to all the historical and statutory
evidence showing petitioners' concrete interest in prudent
and loyal fduciaries.
Instead, the Court insists again that “participants in a
defned-beneft plan are not similarly situated to the benef-
ciaries of a private trust,” ante, at 542, and that the “com-
plaint did not plausibly and clearly claim that the alleged
mismanagement of the plan substantially increased the risk
that the plan and the employer would fail and be unable to
pay the plaintiffs' future pension benefts,” ante, at 546.
The frst observation is incorrect for the reasons stated
above. But even were the Court correct that petitioners'
rights do not sound in trust law, petitioners would still have
standing. The Court reasons that petitioners have an en-
forceable right to “monthly payments for the rest of their
lives” because their plan confers a “contractua[l] entitle-
[ment].” Ante, at 540. Under that view, the plan also con-
5
Curiously, today's Court suggests that ERISA's efforts to bolster trust-
law fduciary duties actually degraded them instead. See ante, at 542
( justifying a narrow construction of ERISA protections because “trust
law informs but does not control interpretation of ERISA”). Yet the case
the Court cites, Varity Corp. v. Howe, 516 U. S. 489 (1996), relied on trust
law to establish the minimum obligations ERISA imposes on plan fduci-
aries. See id., at 506 (confrming that the “ERISA fduciary duty includes
[the] common law duty of loyalty”). Today's Court mistakes the foor for
the ceiling. See ibid.; see also Harris Trust, 530 U. S., at 241–242.
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561
Sotomayor, J., dissenting
fers contractual rights to loyal and prudent plan manage-
ment.
See App. 60–61; 29 U. S. C. §§ 1104, 1109.
Thus, for the same reason petitioners could bring suit if
they did not receive payments from their plan, they could
bring suit if they did not receive loyalty and prudence from
their fduciaries. After all, it is well settled that breach of
“a contract to act diligently and skil[l]fully” provides a
“ground of action” in federal court. Wilcox v. Executors of
Plummer, 4 Pet. 172, 181–182 (1830). It is also undisputed
that “[a] breach of contract always creates a right of action,”
even when no fnancial “harm was caused.” Restatement
(First) of Contracts § 328, and Comment a, pp. 502–503
(1932); see also Spokeo, 578 U. S., at 344 (Thomas, J., concur-
ring) (“[C]ourts historically presumed that the plaintiff suf-
fered a de facto injury merely from having his personal, legal
rights invaded” even without any “allegation of damages”).
Petitioners would thus have standing even were they to ac-
cept the Court's fawed premise.
The Court's second statement, that petitioners have not
alleged a substantial risk of missed payments, ante, at 546,
is orthogonal to the issues at hand. A breach-of-fduciary-
duty claim exists regardless of the benefciary's personal
gain, loss, or recovery. In rejecting petitioners' standing
and maintaining that “this suit would not change [petition-
ers'] monthly pension benefts,” ante, at 547, the Court fails
to distinguish the different rights on which pension-plan ben-
efciaries may sue. They have a right not just to their pen-
sion benefts, but also to loyal and prudent fduciaries. See
Warth v. Seldin, 422 U. S. 490, 500 (1975) (the standing in-
quiry “turns on the nature and source of the claim asserted”).
Petitioners seek relief tailored to the second category, includ-
ing restitution, disgorgement, and injunctive remedies. Cf.
Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S.
204, 215–216 (2002) (explaining the various historical bases
for ERISA's remedies). The Court does not even try to ex-
plain ERISA's (or the Plan Document's) text imposing fdu-
562 TH
OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
ciary duties, let alone this Court's decision in Harris Trust
suppor
ting petitioners' standing. And even though the
Court briefy mentions that petitioners seek “injunctive re-
lief, including replacement of the plan's fduciaries,” ante,
at 541, it offers no analysis on that issue. Put differently,
the Court denies petitioners standing to sue without analyz-
ing all their claims to relief.
With its focus on fscal harm, the Court seems to suggest
that pecuniary injury is the sine qua non of standing. The
Court emphasizes that petitioners themselves have not “sus-
tained any monetary injury” apart from their trust fund's
losses. Ante, at 540; see also ante, at 542.
But injury to a plaintiff 's wallet is not, and has never been,
a prerequisite for standing. The Constitution permits fed-
eral courts to hear disputes over nonfnancial injuries like
the harms alleged here. Spokeo, 578 U. S., at 340–341; see
also, e. g., id., at 344–345 (Thomas, J., concurring); Tennessee
Elec. Power Co. v. TVA, 306 U. S. 118, 137–138 (1939).
6
In
Heckler v. Mathews, 465 U. S. 728 (1984), for instance, this
Court recognized a plaintiff 's standing to assert a “noneco-
6
This Court has found standing in myriad cases involving noneconomic
injuries. Examples include the denial or threatened impairment of: equal
treatment, Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 211 (1995);
Northeastern Fla. Chapter, Associated Gen. Contractors of America v.
Jacksonville, 508 U. S. 656, 666 (1993); “truthful information concerning
the availability of housing,” Havens Realty Corp. v. Coleman, 455 U. S.
363, 373 (1982); esthetic and recreational interests, Friends of the Earth,
Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 181–
182 (2000); “information which must be publicly disclosed pursuant to a
statute,” Federal Election Comm'n v. Akins, 524 U. S. 11, 21 (1998); one's
“personal, political, and professional reputation,” Meese v. Keene, 481 U. S.
465, 473 (1987); and the right to speak, Spokeo, 578 U. S., at 340 (citing
Pleasant Grove City v. Summum, 555 U. S. 460 (2009)). This Court has
even said that a for-proft business has standing to assert religious inju-
ries. See Burwell v. Hobby Lobby Stores, Inc., 573 U. S. 682, 715, and
n. 26 (2014). Today's Court does not reconcile these cases with its novel
fnancial-harm requirement; nor does the Court explain why a breach of
fduciary duty is less concrete than the injuries listed above.
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563
Sotomayor, J., dissenting
nomic” injury for discriminatory distribution of his Social
Secur
ity benefts, even though he did not have “a substantive
right to any particular amount of benefts.” Id., at 737, 739.
Petitioners' standing here is even sturdier: They assert a
noneconomic injury for unlawful management of their retire-
ment plan and, unlike the plaintiff in Heckler, petitioners do
have a substantive right to a particular amount of benefts.
Cf. ante, at 540 (acknowledging that petitioners' benefts are
“vested” and that payments are “legally and contractually”
required).
None of this is disputed. In fact, the Court seems to con-
cede all this reasoning in a footnote. See ante, at 544, n. 1.
The Court appears to acknowledge that an ERISA bene-
fciary's noneconomic right to information from the fduciar-
ies would support standing. See ibid. (citing 29 U. S. C.
§ 1132(a)(1)(A)). Yet the Court offers no reason to think
that a benefciary's noneconomic right to loyalty and pru-
dence from the fduciaries is meaningfully different.
For its part, the concurrence attempts to fll the Court's
gaps by adding that “[t]he fduciary duties created by ERISA
are owed to the plan, not petitioners.” Ante, at 548 (opinion
of Thomas, J.). But this Court has already rejected that
view. Compare Varity Corp., 516 U. S., at 507 (“This argu-
ment fails”), with id., at 516 (Thomas, J., dissenting).
Nor is that argument persuasive on its own terms. The
concurrence relies on a compound prepositional phrase taken
out of context, collecting ERISA provisions saying that a
fduciary acts “with respect to” a plan. See ante, at 548
(opinion of Thomas, J.). Of course a plan fduciary performs
her duties “with respect to a plan.” 29 U. S. C. § 1104(a)(1).
After all, she manages the plan. § 1102(a). But she does
so “solely in the interest” and “for the exclusive purposes”
of the plan's “participants and benefciaries.” §§ 1103(a),
(c)(1), 1104(a)(1).
In short, the concurrence gets it backwards. Congress
did not enact ERISA to protect plans as artifcial entities.
564 TH
OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
It enacted ERISA (and required trusts in the frst place)
to
protect the plan “participants” and “their benefciaries.”
§ 1001(b). Thus, ERISA fduciary duties run where the stat-
ute says: to the participants and their benefciaries.
C
Last, petitioners have standing to sue on their retirement
plan's behalf.
1
Even if petitioners had no suable interest in their plan's
fnancial integrity or its competent supervision, the plan it-
self would. There is no disputing at this stage that respond-
ents' “mismanagement” caused the plan “approximately $750
million in losses” still not fully reimbursed. Ante, at 541
(majority opinion). And even under the concurrence's view,
respondents' fduciary duties “are owed to the plan.” Ante,
at 548 (opinion of Thomas, J.). The plan thus would have
standing to sue under either theory discussed above.
The problem is that the plan is a legal fction: Although
ERISA provides that a retirement plan “may sue . . . as an
entity,” 29 U. S. C. § 1132(d)(1), someone must still do so on
the plan's behalf. Typically that is the fduciary's job. See
§ 1102(a)(1) (fduciaries have “authority to control and man-
age the operation and administration of the plan”). But
imagine a case like this one, where the fduciaries refuse to
sue because they would be the defendants. Does the Consti-
tution compel a pension plan to let a fox guard the henhouse?
Of course not. This Court's representational-standing
doctrine permits petitioners to sue on their plan's behalf.
See Food and Commercial Workers v. Brown Group, Inc.,
517 U. S. 544, 557 (1996). This doctrine “rests on the prem-
ise that in certain circumstances, particular relationships
(recognized either by common-law tradition or by statute)
are suffcient to rebut the background presumption . . . that
litigants may not assert the rights of absent third parties.”
Ibid. (footnotes omitted). This is especially so where, as
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565
Sotomayor, J., dissenting
here, there is “some sort of impediment” to the other party's
“effec
tive assertion of their own rights.” R. Fallon, J. Man-
ning, D. Meltzer, & D. Shapiro, Hart & Wechsler's The Fed-
eral Courts and the Federal System 158 (6th ed. 2009); see
also Powers v. Ohio, 499 U. S. 400, 410–411 (1991).
The common law has long regarded a benefciary's repre-
sentational suit as a proper “basis for a lawsuit in English
or American courts.” Spokeo, 578 U. S., at 341. When “the
trustee cannot or will not” sue, a benefciary may do so “as
a temporary representative of the trust.” Bogert & Bogert
§ 869. The common law also allows “the terms of a trust”
to “confer upon others the power to enforce the trust,”
giving that person “standing ” to “bring suit against the
trustee.” Restatement (Third) of Trusts § 94, Comment
d(1), at 7.
ERISA embraces this tradition. Sections 1132(a)(2) and
(a)(3) authorize participants and benefciaries to sue “in a
representative capacity on behalf of the plan as a whole,”
Russell, 473 U. S., at 142, n. 9, so that any “recovery” arising
from the action “inures to the beneft of the plan as a whole,”
id., at 140. Perhaps for this reason, and adding to the incon-
gruity in today's outcome, some Members of this Court have
insisted that lawsuits to enforce ERISA's fduciary duties
“must” be brought “in a representative capacity.” Varity
Corp., 516 U. S., at 516 (Thomas, J., dissenting) (internal quo-
tation marks omitted).
Permitting benefciaries to enforce their plan's rights fnds
plenty of support in our constitutional case law. Take asso-
ciational standing: An association may fle suit “to redress
its members' injuries, even without a showing of injury to
the association itself.” Food and Commercial Workers, 517
U. S., at 552. All Article III requires is that a member
“ `would otherwise have standing to sue in their own right' ”
and that “ `the interests [the association] seeks to protect are
germane to the organization's purpose.' ” Id., at 553. Peti-
tioners' suit here is the other side of the same coin: The plan
566 TH
OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
would have standing to sue in its own right, and petitioners'
i
nterest is to disgorge wrongful profts and reimburse the
trust for losses, thereby preserving trust assets held for
their exclusive beneft.
Next-friend standing is another apt analog. Long “ac-
cepted [as a] basis for jurisdiction,” this doctrine allows a
party to “appear in [federal] court on behalf of detained pris-
oners who are unable . . . to seek relief themselves.”
Whitmore v. Arkansas, 495 U. S. 149, 162 (1990) (tracing the
doctrine's roots to the 17th century). Here, of course, peti-
tioners' plan cannot access the courts itself because the par-
ties the Court thinks should fle suit (the fduciaries) are the
defendants. Like a “next friend,” moreover, petitioners are
“dedicated to the best interests” of the party they seek to
protect, id., at 163, because the plan's interests are petition-
ers' interests.
7
Congress was on well-established ground when it allowed
pension participants and benefciaries to sue on their retire-
ment plan's behalf.
2
The Court's conficting conclusion starts with inapposite
cases. It invokes Hollingsworth v. Perry, 570 U. S. 693, 708
(2013), reasoning that “to claim `the interests of others, the
litigants themselves still must have suffered an injury in
fact.' ” Ante, at 543. Perry, a case about a California ballot
initiative, is a far cry from this one. Perry found that “pri-
vate parties” with no stake in the litigation “distinguishable
from the general interest of every citizen” were not proper
7
Other examples include guardians ad litem and, of course, trustees.
E. g., Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269,
287 (2008) (noting in the Article III standing context that “federal courts
routinely entertain suits which will result in relief for parties that are not
themselves directly bringing suit,” such as when “[t]rustees bring suits to
beneft their trusts”); see also id., at 304–305, n. 2 (Roberts, C. J., dissent-
ing) (“[T]rustees, guardians ad litem, executors, and the like make up a
settled, continuous practice `of the sort traditionally amenable to, and re-
solved by, the judicial process' ”).
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567
Sotomayor, J., dissenting
representatives of the State. 570 U. S., at 707, 710. If any-
th
ing, Perry supports petitioners here: This Court found
“readily distinguishable” other representational-standing
cases by underscoring their sound traditions. Id., at 711
(distinguishing assignee and next-friend standing).
8
A tra-
ditional benefciary-versus-trustee claim like petitioners' is
exactly such a suit.
Next, the Court maintains that petitioners “have not been
legally or contractually assigned” or “appointed” to repre-
sent the plan. Ante, at 543–544. Although a formal assign-
ment or appointment suffces for standing, it is not necessary.
See, e. g., Food and Commercial Workers, 517 U. S., at 552;
Whitmore, 495 U. S., at 162. Regardless, Congress ex-
pressly and thereby legally assigned pension-plan partici-
pants and benefciaries the right to represent their plan, in-
cluding in lawsuits where the other would-be representative
is the defendant. 29 U. S. C. §§ 1132(a)(2), (3); see also,
e. g., Restatement (Third) of Trusts § 94, Comment d(1),
at 7 (trust terms may confer standing to sue the trustee).
ERISA was “primarily concerned with the possible misuse
of plan assets, and with remedies that would protect the en-
tire plan.” Russell, 473 U. S., at 142; see also id., at 140–142,
nn. 8–9.
9
Far from “ `automatically' ” conferring petitioners
8
The Court cites two more cases: Gollust v. Mendell, 501 U. S. 115
(1991), and Craig v. Boren, 429 U. S. 190 (1976). But both endorsed ex-
pansive views of standing. See Gollust, 501 U. S., at 125–127 (allowing
indirect owners of a corporation to sue under federal securities laws);
Craig, 429 U. S., at 194–195 (holding that a plaintiff had representational
standing to assert an equal protection claim on a business patron's behalf ).
To the extent the Court suggests that a fnancial loss is necessary (or that
a breach of fduciary duty is insuffcient) for standing, that is incorrect.
See Part II–B, supra.
9
Neither Sprint, 554 U. S. 269, nor Vermont Agency of Natural Re-
sources v. United States ex rel. Stevens, 529 U. S. 765 (2000), is to the con-
trary. Cf. ante, at 543–544. Both decisions undermine today's result.
See Sprint, 554 U. S., at 280, 287 (noting in the Article III context that
“ `naked legal title' ” has long permitted suit and that “federal courts rou-
tinely entertain suits which will result in relief for parties that are not them-
selves directly bringing suit,” such as when “[t]rustees bring suits to beneft
568 TH
OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
standing to sue or creating an injury from whole cloth, cf.
an
te, at 544, ERISA assigns the right to sue on the plan's
unquestionably cognizable harm: here, fduciary breaches
causing wrongful gains and hundreds of millions of dollars in
losses. So even under the Court's framing, it does not mat-
ter whether petitioners “sustained any monetary injury,”
ante, at 540, because their pension plan did.
To support standing, a statute may (but need not) legally
designate a party to sue on another's behalf. Because
ERISA does so here, petitioners should be permitted to sue
for their pension plan's sake.
III
The Court also notes that “[e]ven if a defned-beneft plan
is mismanaged into plan termination, the federal [Pension
Beneft Guaranty Corporation] by law acts as a backstop and
covers the vested pension benefts up to a certain amount
and often in full.” Ante, at 546, n. 2. The Court then sug-
gests that the only way benefciaries of a mismanaged plan
could sue is if their benefts were not “guaranteed in full by
the PBGC.” Ibid.
Those statements underscore the problem in today's deci-
sion. Whereas ERISA and petitioners' Plan Document ex-
plicitly mandate that all plan assets be handled prudently
and loyally for petitioners' exclusive beneft, the Court sug-
gests that benefciaries should endure disloyalty, impru-
dence, and plan mismanagement so long as the Federal Gov-
ernment is there to pick up the bill when “the plan and the
employer” “fail.” Ibid.
But the purpose of ERISA and fduciary duties is to pre-
vent retirement-plan failure in the frst place. 29 U. S. C.
§ 1001. In barely more than a decade, the country (indeed
the world) has experienced two unexpected fnancial crises
their trusts”); Vermont Agency, 529 U. S., at 774 (showing that even a
partial statutory assignment grants constitutional standing to sue on an-
other's behalf ).
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569
Sotomayor, J., dissenting
that have rocked the existence and stability of many employ-
ers
once thought incapable of failing. ERISA deliberately
provides protection regardless whether an employer is on
sound fnancial footing one day because it may not be so sta-
ble the next. See ibid.
10
The Court's references to Government insurance also
overlook sobering truths about the PBGC. The Govern-
ment Accountability Offce recently relisted the PBGC as one
of the “High Risk” Government programs most likely to be-
come insolvent. See GAO, Report to Congressional Com-
mittees, High-Risk Series: Substantial Efforts Needed To
Achieve Greater Progress on High-Risk Areas (GAO–19–
157SP, 2019) (GAO High-Risk Report). Noting the insol-
vency of defned-beneft plans that the PBGC insures and
the “signifcant fnancial risk and governance challenges that
PBGC faces,” the GAO High-Risk Report warns that “the
retirement benefts of millions of American workers and
retirees could be at risk of dramatic reductions” within
four years. Id., at 56–57. At last count, the PBGC's “net
accumulated fnancial defcit” was “over $51 billion” and its
“exposure to potential future losses for underfunded plans”
was “nearly $185 billion.” Id., at 267. Notably, the GAO
had issued these warnings before the current fnancial crisis
struck. Exchanging ERISA's fduciary duties for Govern-
ment insurance would only add to the PBGC's plight and
require taxpayers to bail out pension plans.
IV
It is hard to overstate the harmful consequences of the
Court's conclusion. With ERISA, “the crucible of congres-
sional concern was misuse and mismanagement of plan assets
by plan administrators.” Russell, 473 U. S., at 141, n. 8. In
imposing fduciary duties and providing a private right of
10
This also explains why a material risk of loss is not a prerequisite for
standing, least of all for retirees relying on their retirement plan for in-
come. Cf. ante, at 546.
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OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
action, Congress “designed” the statute “to prevent these
abuses
in the future.” Ibid. Yet today's outcome encour-
ages the very mischief ERISA meant to end.
Af ter today's decisi on, about 35 mi l l i on people w ith
defned-beneft plans
11
will be vulnerable to fduciary miscon-
duct. The Court's reasoning allows fduciaries to misuse
pension funds so long as the employer has a strong enough
balance sheet during (or, as alleged here, because of ) the
misbehavior. Indeed, the Court holds that the Constitution
forbids retirees to remedy or prevent fduciary breaches in
federal court until their retirement plan or employer is on
the brink of fnancial ruin. See ante, at 546. This is a re-
markable result, and not only because this case is bookended
by two fnancial crises. There is no denying that the Great
Recession contributed to the plan's massive losses and statu-
tory underfunding, or that the present pandemic punctuates
the perils of imprudent and disloyal fnancial management.
Today's result also disrupts the purpose of ERISA and the
trust funds it requires. Trusts have trustees and fduciary
duties to protect the assets and the benefciaries from the
vicissitudes of fortune. Fiduciary duties, especially loyalty,
are potent prophylactic rules that restrain trustees “tempted
to exploit [a] trust.” Bogert & Bogert § 543. Congress
thus recognized that one of the best ways to protect retire-
ment plans was to codify the same fduciary duties and
benefciary-enforcement powers that have existed for centu-
ries. E. g., 29 U. S. C. §§ 1001(b), 1109, 1132. Along those
lines, courts once held fduciaries to a higher standard: “Not
honesty alone, but the punctilio of an honor the most sensi-
tive.” Meinhard v. Salmon, 249 N. Y. 458, 464, 164 N. E.
545, 546 (1928) (Cardozo, C. J.). Not so today.
11
See Dept. of Labor, Private Pension Plan Bulletin Historical Tables
and Graphs, 1975 – 2017 (Sept. 2019) (Table E4), https://www.dol.gov/
sites/dolgov/files/ EBSA /researchers/st atistics/retirement-bu lletins/
private-pension-plan-bulletin-historical-tables-and-graphs.pdf.
Cite
as: 590 U. S. 538 (2020)
571
Sotomayor, J., dissenting
Nor can petitioners take comfort in the so-called “regula-
tory
phalanx” guarding defned-beneft plans from misman-
agement. Ante, at 545. Having divested ERISA of en-
forceable fduciary duties and benefciaries of their right to
sue, the Court lists “employers and their shareholders,”
other fduciaries, and the “Department of Labor” as parties
on whom retirees should rely. Ibid. But there are serious
holes in the Court's proffered line of defense.
The Court's proposed solutions offer nothing in a case like
this one. The employer, its shareholders, and the plan's
cofduciaries here have no reason to bring suit because they
either committed or profted from the misconduct. Recall
the allegations: Respondents misused a pension plan's assets
to invest in their own mutual funds, pay themselves exces-
sive fees, and swell the employer's income and stock prices.
Nor is the Court's suggestion workable in the mine run of
cases. The reason the Court gives for trusting employers
and shareholders to look out for benefciaries—“because the
employers are entitled to the plan surplus and are often on
the hook for plan shortfalls,” ibid.—is what commentators
call a confict of interest.
12
Neither is the Federal Government's enforcement power a
palliative. “ERISA makes clear that Congress did not in-
tend for Government enforcement powers to lessen the re-
sponsibilities of plan fduciaries.” Central States, 472 U. S.,
at 578. The Secretary of Labor, moreover, signed a brief
(in support of petitioners) verifying that the Federal Gov-
ernment cannot “monitor every [ERISA] plan in the coun-
12
E. g., Fischel & Langbein, ERISA's Fundamental Contradiction: The
Exclusive Beneft Rule, 55 U. Chi. L. Rev. 1105, 1121 (1988). This confict
exists because, contrary to the Court's assertion, the employer and its
shareholders are not “entitled to the plan surplus” until after the plan
terminates and after all vested benefts have been paid from the trust
fund's assets. Compare ante, at 545, with 29 U. S. C. § 1103(c)(1) (ERISA
plan assets “shall never inure to the beneft of any employer” while the
trust exists); see also App. 61; Record in No. 13–cv–2687 (D Minn.),
Doc. 107–1, p. 75.
572 TH
OLE v. U. S. BANK N. A.
Sotomayor, J., dissenting
try.” Brief for United States as Amicus Curiae 26. Even
when
the Government can sue (in a representational capac-
ity, of course), it cannot seek all the relief that a participant
or benefciary could. Compare 29 U. S. C. § 1132(a)(2) with
§ 1132(a)(3). At bottom, the Court rejects ERISA's private-
enforcement scheme and suggests a preference that taxpay-
ers fund the monitoring (and perhaps the bailing out) of pen-
sion plans. See ante, at 545–546, and n. 2.
Finally, in justifying today's outcome, the Court discusses
attorney's fees. Twice the Court underlines that attorneys
have a “$31 million” “stake” in this case. Ante, at 541. But
no one in this litigation has suggested attorney's fees as a
basis for standing. As the Court appears to admit, its focus
on fees is about optics, not law. See ante, at 541–542 (ac-
knowledging that attorney's fees do not advance the stand-
ing inquiry).
The Court's aside about attorneys is not only misplaced,
it is also mistaken. Missing from the Court's opinion is
any recognition that Congress found private-enforcement
suits and fduciary duties critical to policing retirement plans;
that it was after this litigation was initiated that respondents
restored $311 million to the plan in compliance with statu-
torily required funding levels; and that counsel justifed
their fee request as a below-market percentage of the $311
mi l l i on employer i nfusi on that th is lawsuit a l legedly
precipitated.
***
The Constitution, the common law, and the Court's cases
confrm what common sense tells us: People may protect
their pensions. “Courts,” the majority surmises, “some-
times make standing law more complicated than it needs to
be.” Ante, at 547. Indeed. Only by overruling, ignoring,
or misstating centuries of law could the Court hold that the
Constitution requires benefciaries to watch idly as their sup-
posed fduciaries misappropriate their pension funds. I re-
spectfully dissent.
OCTOBER
TERM, 2019
573
Syllabus
NASRALLAH v. BARR, ATTORNEY GENERAL
certiorari
to the united states court of appeals for
the eleventh circuit
No. 18–1432. Argued March 2, 2020—Decided June 1, 2020
Under federal immigration law, noncitizens who commit certain crimes
are removable from the United States. During removal proceedings, a
noncitizen who demonstrates a likelihood of torture in the designated
country of removal is entitled to relief under the international Conven-
tion Against Torture (CAT) and may not be removed to that country.
If an immigration judge orders removal and denies CAT relief, the non-
citizen may appeal both orders to the Board of Immigration Appeals
and then to a federal court of appeals. But if the noncitizen has com-
mitted any crime specifed in 8 U. S. C. § 1252(a)(2)(C), the scope of judi-
cial review of the removal order is limited to constitutional and legal
challenges. See § 1252(a)(2)(D).
The Government sought to remove petitioner Nidal Khalid Nasrallah
after he pled guilty to receiving stolen property. Nasrallah applied for
CAT relief to prevent his removal to Lebanon. The Immigration Judge
ordered Nasrallah removed and granted CAT relief. On appeal, the
Board of Immigration Appeals vacated the CAT relief order and ordered
Nasrallah removed to Lebanon. The Eleventh Circuit declined to re-
view Nasrallah's factual challenges to the CAT order because Nasrallah
had committed a § 1252(a)(2)(C) crime and Circuit precedent precluded
judicial review of factual challenges to both the fnal order of removal
and the CAT order in such cases.
Held: Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a
noncitizen's factual challenges to a CAT order. Pp. 579–587.
(a) Three interlocking statutes establish that CAT orders may be re-
viewed together with fnal orders of removal in a court of appeals. The
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
authorizes noncitizens to obtain direct “review of a fnal order of re-
moval” in a court of appeals, § 1252(a)(1), and requires that all challenges
ar isi ng from the remova l proceedi ng be consolidated for rev iew,
§ 1252(b)(9). The Foreign Affairs Reform and Restructuring Act of
1998 (FARRA) implements Article 3 of CAT and provides for judicial
review of CAT claims “as part of the review of a fnal order of removal.”
§ 2242(d). And the REAL ID Act of 2005 clarifes that fnal orders of
removal and CAT orders may be reviewed only in the courts of appeals.
§§ 1252(a)(4)–(5). Pp. 579–581.
574 N
ASRALLAH v. BARR
Syllabus
(b) Sections 1252(a)(2)(C) and (D) preclude judicial review of factual
cha
llenges only to fnal orders of removal. A CAT order is not a fnal
“order of removal,” which in this context is defned as an order “conclud-
ing that the alien is deportable or ordering deportation, ” § 1101(a)
(47)(A). Nor does a CAT order merge into a fnal order of removal,
because a CAT order does not affect the validity of a fnal order of
removal. See INS v. Chadha, 462 U. S. 919, 938. FARRA provides
that a CAT order is reviewable “as part of the review of a fnal order of
removal,” not that it is the same as, or affects the validity of, a fnal order
of removal. Had Congress wished to preclude judicial review of factual
challenges to CAT orders, it could have easily done so. Pp. 581–583.
(c) The standard of review for factual challenges to CAT orders is
substantial evidence—i. e., the agency's “fndings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” § 1252(b)(4)(B).
The Government insists that the statute supplies no judicial review
of factual challenges to CAT orders, but its arguments are unpersuasive.
First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated
interpretation of “fnal orders of deportation” and so does not control
here. Second, the Government argues that § 1252(a)(1) supplies judicial
review only of fnal orders of removal, and if a CAT order is not merged
into that fnal order, then no statute authorizes review of the CAT
claim. But both FARRA and the REAL ID Act provide for direct re-
view of CAT orders in the courts of appeals. Third, the Government's
assertion that Congress would not bar review of factual challenges to
a removal order and allow such challenges to a CAT order ignores
the importance of adherence to the statutory text as well as the good
reason Congress had for distinguishing the two—the facts that rendered
the noncitizen removable are often not in serious dispute, while the is-
sues related to a CAT order will not typically have been litigated prior
to the alien's removal proceedings. Fourth, the Government's policy
argument—that judicial review of the factual components of a CAT
order would unduly delay removal proceedings—has not been borne
out in practice in those Circuits that have allowed factual challenges to
CAT orders. Fifth, the Government fears that a decision allowing fac-
tual review of CAT orders would lead to factual challenges to other
orders in the courts of appeals. But orders denying discretionary relief
under § 1252(a)(2)(B) are not affected by this decision, and the ques-
tion whether factual challenges to statutory withholding orders under
§ 1231(b)(3)(A) are subject to judicial review is not presented here.
Pp. 583–587.
762 Fed. Appx. 638, reversed.
Cite
as: 590 U. S. 573 (2020)
575
Opinion of the Court
Kavanaugh, J., delivered the opinion of the Court, in which Roberts,
C
. J., and Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch, JJ.,
joined. Thomas, J., fled a dissenting opinion, in which Alito, J., joined,
post, p. 587.
Paul W. Hughes argued the cause for petitioner. With
him on the briefs were Michael B. Kimberly, Andrew A.
Lyons-Berg, Helen L. Parsonage, Eugene R. Fidell, Andrew
J. Pincus, Charles A. Rothfeld, and Brian Wolfman.
Matthew Guarnieri argued the cause for respondent.
With him on the brief were Solicitor General Francisco, As-
sistant Attorney General Hunt, Deputy Solicitor General
Kneedler, Donald E. Keener, John W. Blakeley, and Andrew
C. MacLachlan.*
Justice Kavanaugh delivered the opinion of the Court.
Under federal immigration law, noncitizens who commit
certain crimes are removable from the United States. Dur-
ing removal proceedings, a noncitizen may raise claims under
the international Convention Against Torture, known as
CAT. If the noncitizen demonstrates that he likely would
be tortured if removed to the designated country of removal,
then he is entitled to CAT relief and may not be removed to
that country (although he still may be removed to other
countries).
If the immigration judge orders removal and denies CAT
relief, the noncitizen may appeal to the Board of Immigration
Appeals. If the Board of Immigration Appeals orders re-
moval and denies CAT relief, the noncitizen may obtain judi-
cial review in a federal court of appeals of both the fnal
order of removal and the CAT order.
*Briefs of amici curiae urging reversal were fled for Former Executive
Offce of Immigration Review Judges by Richard W. Mark and Amer S.
Ahmed; for Law Professors by Holly L. Henderson-Fisher and David E.
Carney; and for Legal Service Providers by Charles G. Roth, Aaron Karl
Block, and Cassandra Kerkhoff Johnson.
576 N
ASRALLAH v. BARR
Opinion of the Court
In the court of appeals, for cases involving noncitizens
who
have committed any crime specifed in 8 U. S. C.
§ 1252(a)(2)(C), federal law limits the scope of judicial review.
Those noncitizens may obtain judicial review of constitu-
tional and legal challenges to the fnal order of removal, but
not of factual challenges to the fnal order of removal.
Everyone agrees on all of the above. The dispute here
concerns the scope of judicial review of CAT orders for
those noncitizens who have committed crimes specifed in
§ 1252(a)(2)(C). The Government argues that judicial re-
view of a CAT order is analogous to judicial review of a fnal
order of removal. The Government contends, in other
words, that the court of appeals may review the noncitizen's
constitutional and legal challenges to a CAT order, but not
the noncitizen's factual challenges to the CAT order. Nas-
rallah responds that the court of appeals may review the
noncitizen's constitutional, legal, and factual challenges to
the CAT order, although Nasrallah acknowledges that judi-
cial review of factual challenges to CAT orders must be
highly deferential.
So the narrow question before the Court is whether, in a
case involving a noncitizen who committed a crime specifed
in § 1252(a)(2)(C), the court of appeals should review the non-
citizen's factual challenges to the CAT order (i) not at all or
(ii) deferentially. Based on the text of the statute, we con-
clude that the court of appeals should review factual chal-
lenges to the CAT order deferentially. We therefore re-
verse the judgment of the U. S. Court of Appeals for the
Eleventh Circuit.
I
Nidal Khalid Nasrallah is a native and citizen of Lebanon.
In 2006, when he was 17 years old, Nasrallah came to the
United States on a tourist visa. In 2007, he became a law-
ful permanent resident. In 2013, Nasrallah pled guilty to
two counts of receiving stolen property. The U. S. District
Cite
as: 590 U. S. 573 (2020)
577
Opinion of the Court
Court for the Western District of North Carolina sentenced
Nasra
llah to 364 days in prison.
Based on Nasrallah's conviction, the Government initiated
deportation proceedings. See 8 U. S. C. § 1227(a)(2)(A)(i).
In those proceedings, Nasrallah applied for CAT relief to
prevent his removal to Lebanon. See Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–
20, p. 20, 1465 U. N. T. S. 114. Nasrallah alleged that he
was a member of the Druze religion, and that he had been
tortured by Hezbollah before he came to the United States.
Nasrallah argued that he would be tortured again if returned
to Lebanon.
1
The Immigration Judge determined that Nasrallah was re-
movable. As to the CAT claim, the Immigration Judge
found that Nasrallah had previously suffered torture at the
hands of Hezbollah. Based on Nasrallah's past experience
and the current political conditions in Lebanon, the Immigra-
tion Judge concluded that Nasrallah likely would be tortured
again if returned to Lebanon. The Immigration Judge or-
dered Nasrallah removed, but also granted CAT relief and
thereby blocked Nasrallah's removal to Lebanon.
On appeal, the Board of Immigration Appeals disagreed
that Nasrallah likely would be tortured in Lebanon. The
Board therefore vacated the order granting CAT relief and
ordered Nasrallah removed to Lebanon.
Nasrallah fled a petition for review in the U. S. Court of
Appeals for the Eleventh Circuit, claiming (among other
things) that the Board of Immigration Appeals erred in fnd-
ing that he would not likely be tortured in Lebanon. Nas-
rallah raised factual challenges to the Board's CAT order.
Applying Circuit precedent, the Eleventh Circuit declined to
1
To qualify as torture, actions must be “inficted by or at the instigation
of or with the consent or acquiescence of a public offcial or other person
acting in an offcial capacity.” 8 CFR § 1208.18(a)(1) (2019).
578 N
ASRALLAH v. BARR
Opinion of the Court
review Nasrallah's factual challenges. Nasrallah v. United
Sta
tes Attorney General, 762 Fed. Appx. 638 (2019). The
court explained that Nasrallah had been convicted of a crime
specifed in 8 U. S. C. § 1252(a)(2)(C). Noncitizens convicted
of § 1252(a)(2)(C) crimes may not obtain judicial review of
factual challenges to a “fnal order of removal.” §§ 1252(a)
(2)(C)–(D). Under Eleventh Circuit precedent, that statute
also precludes judicial review of factual challenges to the
CAT order.
2
Nasrallah contends that the Eleventh Circuit should have
reviewed his factual challenges to the CAT order because
the statute bars review only of factual challenges to a “fnal
order of removal.” According to Nasrallah, a CAT order is
not a “fnal order of removal” and does not affect the validity
of a fnal order of removal. Therefore, Nasrallah argues, the
statute by its terms does not bar judicial review of factual
challenges to a CAT order.
The Cour ts of Appea ls are div ided over whether
§§ 1252(a)(2)(C) and (D) preclude judicial review of factual
challenges to a CAT order. Most Courts of Appeals have
sided with the Government; the Seventh and Ninth Circuits
have gone the other way. Compare Gourdet v. Holder, 587
F. 3d 1, 5 (CA1 2009); Ortiz-Franco v. Holder, 782 F. 3d 81,
88 (CA2 2015); Pieschacon-Villegas v. Attorney General of
U. S., 671 F. 3d 303, 309–310 (CA3 2011); Oxygene v. Lynch,
813 F. 3d 541, 545 (CA4 2016); Escudero-Arciniega v. Holder,
702 F. 3d 781, 785 (CA5 2012); Tran v. Gonzales, 447 F. 3d
937, 943 (CA6 2006); Lovan v. Holder, 574 F. 3d 990, 998 (CA8
2009); Cole v. United States Attorney General, 712 F. 3d 517,
532 (CA11 2013), with Wanjiru v. Holder, 705 F. 3d 258, 264
(CA7 2013); Vinh Tan Nguyen v. Holder, 763 F. 3d 1022, 1029
(CA9 2014).
2
This opinion uses the term “noncitizen” as equivalent to the statutory
term “alien.” See 8 U. S. C. § 1101(a)(3).
Cite
as: 590 U. S. 573 (2020)
579
Opinion of the Court
In light of the Circuit split on this important question of
federa
l law, we granted certiorari. 589 U. S. 1030 (2019).
3
II
When a noncitizen is removable because he committed a
crime specifed in § 1252(a)(2)(C), immigration law bars judi-
cial review of the noncitizen's factual challenges to his fnal
order of removal. In the Government's view, the law also
bars judicial review of the noncitizen's factual challenges to
a CAT order. Nasrallah disagrees. We conclude that Nas-
rallah has the better of the statutory argument.
A
We begin by describing the three interlocking statutes
that provide for judicial review of fnal orders of removal and
CAT orders.
The frst relevant statute is the Illegal Immigration Re-
form and Immigrant Responsibility Act of 1996. That Act
authorizes noncitizens to obtain direct “review of a fnal
order of removal” in a court of appeals. 110 Stat. 3009–607,
8 U. S. C. § 1252(a)(1). As the parties agree, in the deporta-
tion context, a “fnal order of removal” is a fnal order “con-
cluding that the alien is deportable or ordering deportation.”
§ 1101(a)(47)(A); see § 309(d)(2), 110 Stat. 3009–627; Calcano-
Martinez v. INS, 533 U. S. 348, 350, n. 1 (2001). The Act
also states that judicial review “of all questions of law and
3
This case comes to us on the premise that Nasrallah committed a crime
specifed in § 1252(a)(2)(C). That said, courts are divided on the question
whether §§ 1252(a)(2)(C)–(D)'s limitation on judicial review applies when a
noncitizen has committed only a single crime of moral turpitude. But that
issue is not the question presented in this Court, and we do not address
it. Compare Keungne v. United States Attorney General, 561 F. 3d 1281,
1283 (CA11 2009), with Yeremin v. Holder, 738 F. 3d 708, 713 (CA6 2013);
Wanjiru v. Holder, 705 F. 3d 258, 262–263 (CA7 2013); Lee v. Gonzales,
410 F. 3d 778, 781–782 (CA5 2005).
580 N
ASRALLAH v. BARR
Opinion of the Court
fact . . . arising from any action taken or proceeding brought
to
remove an alien from the United States under this sub-
chapter shall be available only in judicial review of a fnal
order under this section.” 8 U. S. C. § 1252(b)(9); see 110
Stat. 3009–610. In other words, a noncitizen's various chal-
lenges arising from the removal proceeding must be “consoli-
dated in a petition for review and considered by the courts
of appeals.” INS v. St. Cyr, 533 U. S. 289, 313, and n. 37
(2001). By consolidating the issues arising from a fnal
order of removal, eliminating review in the district courts,
and supplying direct review in the courts of appeals, the Act
expedites judicial review of fnal orders of removal.
The second relevant statute is the Foreign Affairs Reform
and Restructuring Act of 1998, known as FARRA. FARRA
i mplements Ar ticle 3 of the i nter nati ona l Conventi on
Against Torture, known as CAT. As relevant here, CAT
prohibits removal of a noncitizen to a country where the non-
citizen likely would be tortured. Importantly for present
purposes, § 2242(d) of FARRA provides for judicial review of
CAT claims “as part of the review of a fnal order of removal
pursuant to section 242 of the Immigration and Nationality
Act (8 U. S. C. 1252).” 112 Stat. 2681–822, note following
8 U. S. C. § 1231.
The third relevant statute is the REAL ID Act of 2005.
As relevant here, that Act responded to this Court's 2001
decision in St. Cyr. In St. Cyr, this Court ruled that the
1996 Act, although purporting to eliminate district court re-
view of fnal orders of removal, did not eliminate district
court review via habeas corpus of constitutional or legal
challenges to fnal orders of removal. 533 U. S., at 312–313.
The REAL ID Act clarifed that fnal orders of removal may
not be reviewed in district courts, even via habeas corpus,
and may be reviewed only in the courts of appeals. See 119
Stat. 310, 8 U. S. C. § 1252(a)(5). The REAL ID Act also
provided that CAT orders likewise may not be reviewed in
district courts, even via habeas corpus, and may be reviewed
Cite
as: 590 U. S. 573 (2020)
581
Opinion of the Court
only in the courts of appeals. See 119 Stat. 310, 8 U. S. C.
§
1252(a)(4).
B
Those three Acts establish that CAT orders may be re-
viewed together with fnal orders of removal in a court of
appeals. But judicial review of fnal orders of removal is
somewhat limited in cases (such as Nasrallah's) involving
noncitizens convicted of crimes specifed in § 1252(a)(2)(C).
In those cases, a court of appeals may review constitutional
or legal challenges to a fnal order of removal, but the court
of appeals may not review factual challenges to a fnal order
of removal. §§ 1252(a)(2)(C)–(D); see Guerrero-Lasprilla v.
Barr, 589 U. S. 221, 234–236 (2020).
The question in this case is the following: By precluding
judicial review of factual challenges to fnal orders of re-
moval, does the law also preclude judicial review of factual
challenges to CAT orders? We conclude that it does not.
The relevant statutory text precludes judicial review of
factua l cha llenges to fina l orders of remova l—and only
to fnal orders of removal. In the deportation context,
a fnal “order of removal” is a fnal order “concluding
that the a l ien is depor t able or order i ng depor t ati on. ”
§ 1101(a)(47)(A).
4
4
Title 8 U. S. C. § 1252(a)(2)(C) provides:
“Notwithstanding any other provision of law (statutory or nonstatu-
tory), including section 2241 of title 28, or any other habeas corpus provi-
sion, and sections 1361 and 1651 of such title, and except as provided in
subparagraph (D), no court shall have jurisdiction to review any fnal
order of removal against an alien who is removable by reason of having
committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)
(A)(iii), (B), (C), or (D) of this title, or any offense covered by section
1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without
regard to their date of commission, otherwise covered by section 1227(a)(2)
(A)(i) of this title.” (Emphasis added.)
Section 1252(a)(2)(D) provides:
“Nothing in subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates judicial review,
582 N
ASRALLAH v. BARR
Opinion of the Court
A CAT order is not itself a fnal order of removal because
it
is not an order “concluding that the alien is deportable or
ordering deportation.” As the Government acknowledges,
a CAT order does not disturb the fnal order of removal.
Brief for Respondent 26. An order granting CAT relief
means only that, notwithstanding the order of removal, the
noncitizen may not be removed to the designated country of
removal, at least until conditions change in that country.
But the noncitizen still “may be removed at any time to an-
other country where he or she is not likely to be tortured.”
8 CFR §§ 1208.17(b)(2), 1208.16(f ).
Even though CAT orders are not the same as fnal orders
of removal, a question remains: Do CAT orders merge into
fnal orders of removal in the same way as, say, an immigra-
tion judge's evidentiary rulings merge into fnal orders of
removal? The answer is no. For purposes of this statute,
fnal orders of removal encompass only the rulings made by
the immigration judge or Board of Immigration Appeals that
affect the validity of the fnal order of removal. As this
Court phrased it in INS v. Chadha, review of a fnal order of
removal “includes all matters on which the validity of the
fnal order is contingent.” 462 U. S. 919, 938 (1983) (internal
quotation marks omitted). The rulings that affect the valid-
ity of the fnal order of removal merge into the fnal order of
removal for purposes of judicial review. But the immigra-
tion judge's or the Board's ruling on a CAT claim does not
affect the validity of the fnal order of removal and therefore
does not merge into the fnal order of removal.
To be sure, as noted above, FARRA provides that a CAT
order is reviewable “as part of the review of a fnal order of
removal” under 8 U. S. C. § 1252. § 2242(d), 112 Stat. 2681–
822; see also 8 U. S. C. § 1252(a)(4). Likewise, § 1252(b)(9)
provides that “[ j]udicial review of all questions of law and
shall be construed as precluding review of constitutional claims or ques-
tions of law raised upon a petition for review fled with an appropriate
court of appeals in accordance with this section.” (Emphasis added.)
Cite
as: 590 U. S. 573 (2020)
583
Opinion of the Court
fact . . . arising from any action taken or proceeding brought
to
remove an alien from the United States under this sub-
chapter shall be available only in judicial review of a fnal
order under this section.” § 1252(b)(9). But FARRA and
§ 1252(b)(9) simply establish that a CAT order may be re-
viewed together with the fnal order of removal, not that a
CAT order is the same as, or affects the validity of, a fnal
order of removal.
Consider an analogy. Suppose a statute furnishes appel-
late review of convictions and sentences in a single appellate
proceeding. Suppose that the statute also precludes appel-
late review of certain factual challenges to the sentence.
Would that statute bar appellate review of factual challenges
to the conviction, just because the conviction and sentence
are reviewed together? No. The same is true here. A
CAT order may be reviewed together with the fnal order of
removal. But a CAT order is distinct from a fnal order of
removal and does not affect the validity of the fnal order of
removal. The CAT order therefore does not merge into the
fnal order of removal for purposes of §§ 1252(a)(2)(C)–(D)'s
limitation on the scope of judicial review. In short, as a mat-
ter of straightforward statutory interpretation, Congress's
decision to bar judicial review of factual challenges to fnal
orders of removal does not bar judicial review of factual chal-
lenges to CAT orders.
It would be easy enough for Congress to preclude judicial
review of factual challenges to CAT orders, just as Congress
has precluded judicial review of factual challenges to certain
fnal orders of removal. But Congress has not done so, and
it is not the proper role of the courts to rewrite the laws
passed by Congress and signed by the President.
C
Although a noncitizen may obtain judicial review of factual
challenges to CAT orders, that review is highly deferential,
as Nasrallah acknowledges. See Reply Brief 19–20; Tr. of
584 N
ASRALLAH v. BARR
Opinion of the Court
Oral Arg. 5. The standard of review is the substantial-
e
vidence standard: The agency's “fndings of fact are conclu-
sive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” § 1252(b)(4)(B); see Kenyeres
v. Ashcroft, 538 U. S. 1301, 1306 (2003) (Kennedy, J., in cham-
bers); INS v. Elias-Zacarias, 502 U. S. 478, 481, n. 1, 483–
484 (1992).
But the Government still insists that the statute supplies
no judicial review of factual challenges to CAT orders. The
Government advances a slew of arguments, but none per-
suades us.
First, the Government raises an argument based on prece-
dent. In Foti v. INS, 375 U. S. 217 (1963), this Court inter-
preted the statutory term “fnal orders of deportation” in the
Immigration and Nationality Act of 1952, as amended in
1961, to encompass “all determinations made during and inci-
dent to the administrative proceeding ” on removability. Id.,
at 229. The Government points out (correctly) that the Foti
defnition of a fnal order—if it still applied here—would
cover CAT orders and therefore would bar judicial review of
factual challenges to CAT orders. But Foti's interpretation
of the INA as it existed as of 1963 no longer applies. Since
1996, the INA has defned fnal “order of deportation” more
narrowly than this Court interpreted the term in Foti. A
fnal order of deportation is now defned as a fnal order “con-
cluding that the alien is deportable or ordering deportation.”
8 U. S. C. § 1101(a)(47)(A); Antiterrorism and Effective Death
Penalty Act of 1996, 110 Stat. 1277; see § 309(d)(2) of the Ille-
gal Immigration Reform and Immigrant Responsibility Act
of 1996, 110 Stat. 3009–627. And as we have explained, an
order denying CAT relief does not fall within the statutory
defnition of an “order of deportation” because it is not an
order “concluding that the alien is deportable or ordering
deportation.” Therefore, Foti does not control here.
Second, the Government puts forward a structural argu-
ment. As the Government sees it, if a CAT order is not
Cite
as: 590 U. S. 573 (2020)
585
Opinion of the Court
merged into a fnal order of removal, then no statute would
author
ize a court of appeals to review a CAT order in the
frst place. That is because, in the Government's view, the
only statute that supplies judicial review of CAT claims is
the statute that provides for judicial review of fnal orders of
removal. See § 1252(a)(1). The premise of that argument
is incorrect. Section 2242(d) of FARRA, enacted in 1998,
expressly provides for judicial review of CAT claims to-
gether with the review of fnal orders of removal. More-
over, as a result of the 2005 REAL ID Act, § 1252(a)(4) now
provides for direct review of CAT orders in the courts of
appeals. See also 8 U. S. C. § 1252(b)(9). In short, our deci-
sion does not affect the authority of the courts of appeals to
review CAT orders.
Third, the Government asserts a congressional intent ar-
gument: Why would Congress bar review of factual chal-
lenges to a removal order, but allow factual challenges to a
CAT order? To begin with, we must adhere to the statutory
text, which differentiates between the two kinds of orders
for those purposes. In any event, Congress had good reason
to distinguish the two. For noncitizens who have committed
crimes that subject them to removal, the facts that rendered
the noncitizen removable are often not in serious dispute.
The relevant facts will usually just be the existence of the
noncitizen's prior criminal convictions. By barring review
of factual challenges to fnal orders of removal, Congress pre-
vented further relitigation of the underlying factual bases
for those criminal convictions—a point that Senator Abra-
ham, a key proponent of the statutory bar to judicial review,
stressed back in 1996. See 142 Cong. Rec. 7348–7350 (1996).
By contrast, the issues related to a CAT order will not
typically have been litigated prior to the alien's removal pro-
ceedings. Those factual issues may range from the nonciti-
zen's past experiences in the designated country of removal,
to the noncitizen's credibility, to the political or other current
conditions in that country. Because the factual components
586 N
ASRALLAH v. BARR
Opinion of the Court
of CAT orders will not previously have been litigated in
cour
t and because those factual issues may be critical to de-
termining whether the noncitizen is likely to be tortured if
returned, it makes some sense that Congress would provide
an opportunity for judicial review, albeit deferential judicial
review, of the factual components of a CAT order.
Fourth, the Government advances a policy argument—
that judicial review of the factual components of a CAT order
would unduly delay removal proceedings. But today's deci-
sion does not affect whether the noncitizen is entitled to judi-
cial review of a CAT order and does not add a new layer of
judicial review. All agree that a noncitizen facing removal
under these provisions may already seek judicial review in a
court of appeals of constitutional and legal claims relating to
both the fnal order of removal and the CAT order. Our
holding today means only that, in that same case in the court
of appeals, the court may also review the noncitizen's factual
challenges to the CAT order under the deferential substantial-
evidence standard. For many years, the Seventh and Ninth
Circuits have allowed factual challenges to CAT orders, and
the Government has not informed this Court of any signif-
cant problems stemming from review in those Circuits.
Fifth, what about the slippery slope? If factual challenges
to CAT orders may be reviewed, what other orders will now
be subject to factual challenges in the courts of appeals? Im-
portantly, another jurisdiction-stripping provision, § 1252(a)
(2)(B), states that a noncitizen may not bring a factual chal-
lenge to orders denying discretionary relief, including cancel-
lation of removal, voluntary departure, adjustment of status,
certain inadmissibility waivers, and other determinations
“made discretionary by statute.” Kucana v. Holder, 558
U. S. 233, 248 (2010). Our decision today therefore has no ef-
fect on judicial review of those discretionary determinations.
5
5
In expedited removal proceedings, the immigration laws do not provide
for any judicial review of CAT claims. See 8 U. S. C. §§ 1225(b)(1)(B)(iii),
1252(a)(2)(A), and 1252(e). Our ruling today does not affect that law.
Cite
as: 590 U. S. 573 (2020)
587
Thomas, J., dissenting
The Government suggests that our decision here might
lead
to judicial review of factual challenges to statutory
withholding orders. A statutory withholding order pre-
vents the removal of a noncitizen to a country where the
noncitizen's “life or freedom would be threatened” because
of the noncitizen's “race, religion, nationality, membership in
a particular social group, or political opinion.” 8 U. S. C.
§ 1231(b)(3)(A). That question is not presented in this case,
and we therefore leave its resolution for another day.
***
In cases where a noncitizen has committed a crime speci-
fed in 8 U. S. C. § 1252(a)(2)(C), §§ 1252(a)(2)(C) and (D) pre-
clude judicial review of the noncitizen's factual challenges to
a fnal order of removal. A CAT order is distinct from a
fnal order of removal and does not affect the validity of a
fnal order of removal. Therefore, §§ 1252(a)(2)(C) and (D)
do not preclude judicial review of a noncitizen's factual chal-
lenges to a CAT order. We reverse the judgment of the
U. S. Court of Appeals for the Eleventh Circuit.
It is so ordered.
Justice Thomas, w ith whom Justice Alito joi ns,
dissenting.
The majority holds that the federal courts of appeals have
jurisdiction to review factual challenges to orders resolving
claims brought under the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punish-
ment. Because I disagree with this interpretation of the
relevant immigration laws, I respectfully dissent.
I
The Convention Against Torture and Other Cruel, Inhu-
man or Degrading Treatment or Punishment (CAT or Con-
vention) is an international human rights treaty that, as its
588 N
ASRALLAH v. BARR
Thomas, J., dissenting
name implies, obligates signatories to work to eradicate tor-
ture
. The Convention was sent to the Senate for its advice
and consent in 1990. Although the Senate ultimately rati-
fed the treaty, it also determined that the frst 16 articles of
the Convention were not self-executing. See S. Exec. Rep.
No. 101–30, p. 31 (1990). As such, those articles required
implementing legislation before their obligations could be-
come effective as domestic law. See Medellín v. Texas, 552
U. S. 491, 505, n. 2 (2008).
After the treaty was ratifed, Congress enacted legislation
implementing Article III of the Convention by means of the
Foreign Affairs Reform and Restructuring Act of 1998
(FARRA). See § 2242, 112 Stat. 2681–822, note following 8
U. S. C. § 1231. Article III of the Convention prohibits its
signatories from “expel[ling], return[ing] or extradit[ing] a
person to another State where there are substantial grounds
for believing that he would be in danger of being sub-
jected to torture.” S. Treaty Doc. No. 100–20, p. 20, 1465
U. N. T. S. 114. Rather than providing detailed guidance on
the United States' Article III obligations, FARRA merely
restated the treaty's language and perfunctorily declared
that “the heads of the appropriate agencies shall prescribe
reg u lati ons to implement the obligati ons of the United
States under Article 3.” § 2242(b).
1
Congress also pro-
vided that no court would have “jurisdiction to consider or
review claims raised under the Convention . . . except as part
of the review of a fnal order of removal pursuant to . . .
(8 U. S. C. § 1252).” § 2242(d).
1
In spite of the weighty interests in not returning aliens to countries
where they would likely be tortured or killed, Congress largely left the
relevant issues—most notably, the interaction between CAT and removal
orders—to be resolved by agency regulations. See ante, at 582–583.
These important questions also include the defnition of torture, 8 CFR
§ 1208.18 (2020); available forms of relief, §§ 1208.16(c), 1208.17; and the
standards that immigration judges should use to decide whether an appli-
cant has carried his burden, § 1208.16(c).
Cite
as: 590 U. S. 573 (2020)
589
Thomas, J., dissenting
Section 1252, in turn, grants federal courts of appeals ju-
r
isdiction to review fnal orders of removal. 8 U. S. C.
§ 1252(a)(1). It also specifes that “the sole and exclusive
means for judicial review of an order of removal” is through
“a petition for review fled . . . in accordance with this sec-
tion.” § 1252(a)(5). Section 1252 also contains a “zipper
clause,” which states that “all questions of law or fact . . .
arising from any action taken or proceeding brought to
remove an alien” shall be consolidated and “available only
in judicial review of a fnal order under this section.”
§ 1252(b)(9).
At the same time, petitions for review are subject to a
number of limitations, one of which is in § 1252(a)(2)(C).
That provision—often referred to as the “criminal-alien
bar”—states that “no court shall have jurisdiction to re-
view any fnal order of removal against an alien who is re-
movable by reason of having committed” certain criminal
offenses.
II
A
This case concerns whether CAT claims brought during a
criminal alien's removal proceeding are covered by the
criminal-alien bar in § 1252(a)(2)(C). The most important
provision for determining whether these CAT orders are
subject to § 1252(a)(2)(C) is the zipper clause. If orders
deeming a criminal alien ineligible for CAT relief fall within
that clause, then the bar in § 1252(a)(2)(C) prevents review;
if they do not, then the courts have jurisdiction to review
factual challenges related to these orders. I would conclude
that CAT orders fall within the zipper clause.
The zipper clause states that “all questions of law and fact
. . . arising from any action taken or proceeding brought to
remove an alien . . . shall be available only in judicial review
of a fnal order under this section.” § 1252(b)(9) (emphasis
added). To “arise” means “to originate from a specifed
590 N
ASRALLAH v. BARR
Thomas, J., dissenting
source” or “to come into being.” Webster's Third New In-
ter
national Dictionary 117 (1976). And “from” most natu-
rally refers here to the “ground, reason, or basis” for some-
thing. Id., at 913. Thus, § 1252(b)(9) covers all “questions
of law and fact” that an immigration judge must decide
as a result of the Government's decision to initiate removal
proceedings against an alien. See also Reno v. American-
Arab Anti-Discrimination Comm., 525 U. S. 471, 482 (1999)
(stating that the zipper clause applies to the “many . . . de-
cisi ons or ac ti ons that may be par t of the [remova l]
process”).
2
The plain text clearly covers CAT claims such as the one
petitioner raised. The Government initiated removal pro-
ceedings, alleging that petitioner had been convicted of a
“crime involving moral turpitude.” See § 1227(a)(2)(A)(i).
As a direct result, petitioner applied for CAT relief to pre-
vent his removal. He was denied CAT withholding because
the Immigration Judge, during the removal proceeding, de-
termined that petitioner had been convicted of a “particu-
larly serious crime.” § 1158(b)(2)(A)(ii). On appeal, the
Board of Immigration Appeals likewise denied CAT deferral
in that selfsame removal proceeding. It is beyond dispute
that petitioner's eligibility for CAT relief involved “questions
of law and fact” that directly “ar[ose] from” the Govern-
ment's i nitiati on of remova l proceedi ngs agai nst h i m.
§ 1252(b)(9). The very forms of relief for which petitioner
applied—withholding of removal and deferral of removal—
confrm that this relief arose directly from the Government-
initiated removal proceeding.
Because the CAT claim falls within the zipper clause, all
of § 1252's other limitations and procedural requirements im-
posed on fnal orders of removal, including § 1252(a)(2)(C)'s
2
As I have previously explained, the zipper clause is actually far
broader, covering all claims “related to” removal proceedings. Jennings
v. Rodriguez, 583 U. S. 281, 316 (2018) (opinion concurring in part and
concurring in judgment).
Cite
as: 590 U. S. 573 (2020)
591
Thomas, J., dissenting
criminal-alien bar, also apply. Accordingly, courts have no
jur
isdiction to review factual challenges to CAT claims
brought i n the course of a cr i mi na l a l ien's remova l
proceeding.
B
My analysis would begin and end with the plain meaning
of the zipper clause. Rather than focusing on that clause,
however, the majority bases its textual analysis almost ex-
clusively on the fact that Congress has defned an “ `order of
[removal]' ” as an order “concluding that the alien is deport-
able or ordering deportation.” § 1101(a)(47)(A). The ma-
jority correctly notes that a CAT order does not fall within
this defnition. See ante, at 582. But it uses that defnition
to alter the scope of the zipper clause, asserting that the
provision only consolidates “[t]he rulings that affect the va-
lidity of the fnal order of removal.” Ibid.
As just explained, this conclusion contradicts the statute's
plain text. The zipper clause does not consolidate all ques-
tions of law and fact that “affect the validity of the fnal order
of removal.” Ibid. It instead consolidates “all questions of
law and fact . . . arising from any action taken or proceeding
brought to remove an alien.” § 1252(b)(9) (emphasis added).
“Arising from” covers a broader category of claims than
those that simply impact the validity of the order, including
petitioner's claim. Thus, the majority's overreliance on the
defnition of fnal order of removal is misplaced.
The majority nevertheless contends that its reading is sup-
ported by § 1252(a)(4). That provision states that CAT
claims may be reviewed through a petition for review. Ac-
cording to the majority, this paragraph “provides for direct
review of CAT orders in the courts of appeals.” Ante, at 585.
That is, the majority views § 1252(a)(4) as a specifc grant of
jurisdiction over CAT claims. Working from that interpre-
tation, the majority contends that the zipper clause and
FARRA merely confrm that CAT orders “may be reviewed
together with the fnal order of removal.” Ante, at 583.
592 N
ASRALLAH v. BARR
Thomas, J., dissenting
This is incorrect. Jurisdiction over CAT claims comes
from
FARRA § 2242(d), which states that courts cannot re-
view CAT claims “except as part of the review of a fnal order
of removal pursuant to . . . (8 U. S. C. § 1252).” In other
words, a fnal order of removal is required if a court is to
review a CAT order at all. The CAT order then becomes
reviewable “as part of ” that fnal order of removal through
the zipper clause. And, because FARRA funnels exclusive
review of CAT orders through § 1252, all of that section's
limitations on fnal orders of removal apply equally to CAT
orders, including § 1252(a)(2)(C).
Section 1252(a)(4), on the other hand, serves a far simpler
function. That provision simply confrms that, because CAT
claims can be reviewed only as part of a fnal order of re-
moval, and fnal orders of removal can be reviewed only if a
petitioner fles a petition for review, a CAT claim likewise
can be reviewed only if petitioner fles a petition for review.
See Ortiz-Franco v. Holder, 782 F. 3d 81, 88–89 (CA2 2015);
Lovan v. Holder, 574 F. 3d 990, 998 (CA8 2009). My reading
of the statute makes sense of § 1252(a)(4), while still giving
the zipper clause its ordinary meaning.
3
C
The majority's interpretation will bring about a sea change
in immigration law. Though today's case involves CAT
claims, there is good reason to think that the majority's rule
will apply equally to statutory withholding of removal.
Statutory withholding, a frequently sought form of relief, is
available if “the alien's life or freedom would be threatened
. . . because of the alien's race, religion, nationality, member-
ship in a particular social group, or political opinion.”
3
Reading § 1252(a)(4) as a grant of jurisdiction would also require read-
ing § 1252(a)(5), which contains very similar language to § 1252(a)(4), as a
grant of jurisdiction over “order[s] of removal.” But that interpretation
would render § 1252(a)(5) superfuous, since § 1252(a)(1) already grants ju-
risdiction over such orders.
Cite
as: 590 U. S. 573 (2020)
593
Thomas, J., dissenting
§ 1231(b)(3)(A); see also 8 CFR § 208.16(b) (2020). Like CAT
w
ithholding, statutory withholding is unavailable to aliens
who have committed certain crimes. § 1231(b)(3)(B)(ii).
And like CAT relief, statutory withholding seeks to prevent
removability and is considered after the alien has been
deemed removable. See, e. g., Kouambo v. Barr, 943 F. 3d
205, 210 (CA4 2019). Thus, statutory withholding claims
also do not affect the validity of the underlying removal
order and, in the majority's view, would not be subject to
§ 1252(a)(2)(C).
The Government persuasively argues that adopting peti-
tioner's rule will disturb the courts of appeals' longstanding
practice of subjecting criminal aliens' statutory withholding
claims to § 1252(a)(2)(C). See, e. g., Rendon v. Barr, 952
F. 3d 963, 970 (CA8 2020); Pierre-Paul v. Barr, 930 F. 3d 684,
693–694 (CA5 2019); Gutierrez v. Lynch, 834 F. 3d 800, 804
(CA7 2016); Jeune v. United States Atty. Gen., 810 F. 3d 792,
806, nn. 3, 12 (CA11 2016); Pechenkov v. Holder, 705 F. 3d
444, 448 (CA9 2012). And at oral argument, petitioner all
but conceded that the Government is correct on that score.
See Tr. of Oral Arg. 20–21. Whistling past the graveyard,
the majority attempts to avoid confronting this result by
simply stating that the question is not currently before us.
Ante, at 587. But the Court cannot evade the implications
of its decision so easily. We have been presented with two
competing statutory interpretations—one of which makes
sense of all relevant provisions without upending settled
prac tice, and one of wh ich sig ni ficantly under mi nes
§ 1252(a)(2)(C) by removing a vast swath of claims from its
reach. If the majority insists on choosing the latter inter-
pretation, it should justify that choice and candidly confront
its implications.
III
At bottom, petitioner's argument is largely driven by pol-
icy considerations. He contends that the United States has
obligated itself not to return any alien, even a criminal alien,
594 N
ASRALLAH v. BARR
Thomas, J., dissenting
to a country where he may be tortured or killed. According
to
petitioner, if CAT claims cannot be reviewed by courts of
appeals, then a vital check on erroneous refoulement will be
lost. Petitioner's arguments are not without rhetorical and
emotional force. But, like so many other questions related
to CAT obligations, Congress chose not to address them
through the legislation involved here.
What Congress has done is enact § 1252(a)(2)(C), which
strips jurisdiction over certain claims of criminal aliens.
That is what is before us, not the broader policy considera-
tions. As has been the case for decades now, the decisions
of this Court continue to systematically chip away at this
statute and other jurisdictional limitations on immigration
claims, thus thwarting Congress' intent. See Guerrero-
Lasprilla v. Barr, 589 U. S. 221, 236–237 (2020) (Thomas, J.,
dissenting); INS v. St. Cyr, 533 U. S. 289, 328–330 (2001)
(Scalia, J., dissenting). Because today's erroneous result
further weakens a duly enacted statute, I respectfully
dissent.
OCTOBER
TERM, 2019
595
Syllabus
LOMAX v. ORTIZ-MARQUEZ et al.
certiorari
to the united states court of appeals for
the tenth circuit
No. 18–8369. Argued February 26, 2020—Decided June 8, 2020
The Prison Litigation Reform Act of 1995 (PLRA) established what has
become known as the three-strikes rule, which generally prevents a
prisoner from bringing suit in forma pauperis (IFP) if he has had three
or more prior suits “dismissed on the grounds that [they were] frivolous,
malicious, or fail[ed] to state a claim upon which relief may be granted.”
28 U. S. C. § 1915(g).
Petitioner Arthur Lomax, an inmate in a Colorado prison, fled this
suit against respondent prison offcials to challenge his expulsion from
the facility's sex-offender treatment program. He also moved for IFP
status, but he had already brought three unsuccessful legal actions dur-
ing his time in prison. If the dispositions of those cases qualify as
strikes under Section 1915(g), Lomax may not now proceed IFP. The
courts below concluded that they did, rejecting Lomax's argument that
two of the dismissals should not count as strikes because they were
without prejudice.
Held: Section 1915(g)'s three-strikes provision refers to any dismissal for
failure to state a claim, whether with prejudice or without.
This case begins, and pretty much ends, with Section 1915(g)'s text.
The provision's broad language covers all dismissals for failure to state
a claim, whether issued with or without prejudice to a plaintiff 's ability
to reassert his claim in a later action. A strike-call under Section
1915(g) thus hinges exclusively on the basis for the dismissal, regardless
of the decision's prejudicial effect. To reach the opposite result would
require reading the word “dismissed” in Section 1915(g) as “dismissed
with prejudice.” Doing so would also introduce inconsistencies into the
PLRA, which has three other provisions mentioning “dismiss[als]” for
“fail[ure] to state a claim.” §§ 1915(e)(2)(B)(ii), 1915A(b); 42 U. S. C.
§ 1997e(c). As the parties agree, those provisions do not deprive courts
of the ability to dismiss suits without prejudice.
Lomax nonetheless maintains that Section 1915(g)'s phrase “dismissed
[for] fail[ure] to state a claim” is a “legal term of art” referring only to
dismissals with prejudice. To support this view, he points to Federal
Rule of Civil Procedure 41(b), which tells courts to treat a dismissal “as
an adjudication on the merits”—meaning a dismissal with prejudice—
where the dismissal order does not specify. But Rule 41(b) is necessary
596 LOMAX
v. ORTIZ-MARQUEZ
Syllabus
precisely because “dismissed for failure to state a claim” refers to dis-
missa
ls both with and without prejudice. The existence of the rule thus
undercuts Lomax's position.
Lomax also argues that the Court should interpret the phrase “failure
to state a claim” based on the other two grounds for dismissal listed in
Section 1915(g). But contra Lomax's view, courts can and sometimes
do dismiss at least frivolous actions without prejudice. Still more fun-
damentally, interpreting the phrase “failure to state a claim” based
on the pre-existing terms “frivolous” and “malicious” would defeat
the PLRA's expansion of the statute beyond what was already there.
Pp. 599–603.
754 Fed. Appx. 756, affrmed.
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Ginsburg, Breyer, Alito, Sotomayor, Gorsuch, and Kavanaugh,
JJ., joined, and in which Thomas, J., joined as to all but footnote 4.
Brian T. Burgess argued the cause for petitioner. With
him on the briefs was Eric D. Lawson.
Eric R. Olson, Solicitor General of Colorado, argued the
cause for respondents. With him on the brief were Philip
J. Weiser, Attorney General of Colorado, Nicole Gellar, First
Assistant Attorney General, Grant T. Sullivan, Assistant
Solicitor General, and Josh Urquhart, Alexa D. Jones, and
Daniel J. De Cecco, Assistant Attorneys General.
Deputy Attorney General Rosen argued the cause for the
United States as amicus curiae urging affrmance. On the
brief were Solicitor General Francisco, Assistant Attorney
General Hunt, Deputy Solicitor General Wall, Colleen E.
Roh Sinzdak, Barbara L. Herwig, and Caroline D. Lopez.*
*A brief of amicus curiae urging reversal was fled for the National
Association of Criminal Defense Lawyers by Anthony F. Shelley, Dawn
E. Murphy-Johnson, and Barbara E. Bergman.
Briefs of amici curiae urging affrmance were fled for the State of
Arizona et al. by Mark Brnovich, Attorney General of Arizona, Oramel
H. Skinner, Solicitor General, Drew C. Ensign, Deputy Solicitor General,
and Robert J. Makar, Assistant Attorney General, by William Tong, At-
torney General of Connecticut, Clare E. Kindall, Solicitor General, and
James Donohue, Assistant Attorney General, and by the Attorneys Gen-
eral for their respective jurisdictions as follows: Steve Marshall of Ala-
Cite
as: 590 U. S. 595 (2020)
597
Opinion of the Court
Justice Kagan delivered the opinion of the Court.†
T
o help staunch a “food of nonmeritorious” prisoner litiga-
tion, the Prison Litigation Reform Act of 1995 (PLRA) es-
tablished what has become known as the three-strikes rule.
Jones v. Bock, 549 U. S. 199, 203 (2007). That rule generally
prevents a prisoner from bringing suit in forma pauperis
(IFP)—that is, without frst paying the fling fee—if he has
had three or more prior suits “dismissed on the grounds that
[they were] frivolous, malicious, or fail[ed] to state a claim
upon which relief may be granted.” 28 U. S. C. § 1915(g).
Today we address whether a suit dismissed for failure to
state a claim counts as a strike when the dismissal was with-
out prejudice. We conclude that it does: The text of Section
1915(g)'s three-strikes provision refers to any dismissal for
failure to state a claim, whether with prejudice or without.
I
Petitioner Arthur Lomax is an inmate in a Colorado
prison. He fled this suit against respondent prison offcials
to challenge his expulsion from the facility's sex-offender
bama, Kevin G. Clarkson of Alaska, Leslie Rutledge of Arkansas, Ashley
Moody of Florida, Christopher M. Carr of Georgia, Clare E. Connors of
Hawaii, Lawrence G. Wasden of Idaho, Kwame Raoul of Illinois, Curtis T.
Hill, Jr., of Indiana, Thomas J. Miller of Iowa, Derek Schmidt of Kansas,
Daniel Cameron of Kentucky, Jeff Landry of Louisiana, Aaron M. Frey
of Maine, Dana Nessel of Michigan, Eric S. Schmitt of Missouri, Timothy
C. Fox of Montana, Douglas J. Peterson of Nebraska, Wayne Steneh jem
of North Dakota, Dave Yost of Ohio, Mike Hunter of Oklahoma, Ellen F.
Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F. Neronha of
Rhode Island, 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 Robert W. Ferguson of Washington; and for the
Council of State Governments et al. by Misha Tseytlin, Elizabeth Holt
Andrews, and Lisa Soronen.
A brief of amicus curiae was fled for the Roderick and Solange MacAr-
thur Justice Center by David M. Shapiro.
†Justice Thomas joins all but footnote 4 of this opinion.
598 LOMAX
v. ORTIZ-MARQUEZ
Opinion of the Court
treatment program. As is common in prison litigation, he
a
lso moved for IFP status to allow his suit to go forward
before he pays the $400 fling fee. For that motion to suc-
ceed, Lomax must avoid Section 1915(g). That provision
bars further IFP litigation once a prisoner has had at least
three prior suits dismissed on specifed grounds.
1
And
Lomax is no rookie litigant. During his time in prison, he
has already brought three unsuccessful legal actions (against
various corrections offcers, prosecutors, and judges). If the
dispositions of those cases qualify as strikes under Section
1915(g), Lomax may not now proceed IFP.
The courts below ruled that Lomax had struck out. The
District Court denied his motion for IFP status, fnding that
all three of his prior suits had been dismissed for failure
to state a claim—one of the grounds specifed in Section
1915(g). See App. 65–66.
2
On appeal, Lomax argued that
two of those dismissals should not count as strikes because
they were without prejudice, thus allowing him to fle a later
suit on the same claim. The Court of Appeals for the Tenth
Circuit rejected that argument. Relying on Circuit prece-
dent, the Court held it “immaterial to the strikes analysis”
1
The full text of the three-strikes provision reads:
“In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding [in forma pauperis] if the prisoner has, on
3 or more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was dis-
missed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under immi-
nent danger of serious physical injury.” 28 U. S. C. § 1915(g).
2
Two of the cases were dismissed under Heck v. Humphrey, 512 U. S.
477 (1994), which holds that a claim challenging the validity of a conviction
or sentence under 42 U. S. C. § 1983 “does not accrue until the conviction
or sentence has been invalidated.” 512 U. S., at 490. In concluding that
those two Heck dismissals were for failure to state a claim, the District
Court followed Circuit precedent. See Smith v. Veterans Admin., 636
F. 3d 1306, 1312 (CA10 2011). Not all Courts of Appeals accept that view.
See, e. g., Mejia v. Harrington, 541 Fed. Appx. 709, 710 (CA7 2013). But
Lomax did not raise that issue, and we therefore do not address it.
Cite
as: 590 U. S. 595 (2020)
599
Opinion of the Court
whether a dismissal was with or without prejudice. 754
F
ed. Appx. 756, 759 (2018) (quoting Childs v. Miller, 713
F. 3d 1262, 1266 (CA10 2013)).
The Courts of Appeals have long divided over whether a
dismissal without prejudice for failure to state a claim quali-
fes as a strike under Section 1915(g).
3
In line with our duty
to call balls and strikes, we granted certiorari to resolve the
split, 589 U. S. 1031 (2019), and we now affrm.
II
This case begins, and pretty much ends, with the text of
Section 1915(g). Under that provision, a prisoner accrues a
strike for any action “dismissed on the ground[ ] that it . . .
fails to state a claim upon which relief may be granted.”
That broad language covers all such dismissals: It applies to
those issued both with and without prejudice to a plaintiff's
ability to reassert his claim in a later action.
4
A strike-call
under Section 1915(g) thus hinges exclusively on the basis
for the dismissal, regardless of the decision's prejudicial ef-
fect. To reach the opposite result—counting prejudicial or-
ders alone as strikes—we would have to read the simple
3
Four Circuits treat dismissals without prejudice for failure to state a
claim as strikes. See Orr v. Clements, 688 F. 3d 463, 465 (CA8 2012);
Paul v. Marberry, 658 F. 3d 702, 704 (CA7 2011); O'Neal v. Price, 531 F. 3d
1146, 1154 (CA9 2008); Day v. Maynard, 200 F. 3d 665, 667 (CA10 1999)
(per curiam). Two Circuits do the opposite. See Millhouse v. Heath,
866 F. 3d 152, 162–163 (CA3 2017); McLean v. United States, 566 F. 3d 391,
396–397 (CA4 2009).
4
Note, however, that the provision does not apply when a court gives a
plaintiff leave to amend his complaint. Courts often take that path if
there is a chance that amendment can cure a defcient complaint. See
Fed. Rule Civ. Proc. 15(a) (discussing amendments to pleadings). In that
event, because the suit continues, the court's action falls outside of Sec-
tion 1915(g) and no strike accrues. See Brief for Respondents 31–35 (not-
ing that fexible amendment practices “ensure that potentially meritorious
prisoner suits are not hastily dismissed with a strike”); Brief for United
States as Amicus Curiae 27–28 (similar); Tr. of Oral Arg. 32–34, 44
(similar).
600 LOMAX
v. ORTIZ-MARQUEZ
Opinion of the Court
word “dismissed” in Section 1915(g) as “dismissed with prej-
udice
.” But this Court may not narrow a provision's reach
by inserting words Congress chose to omit. See, e. g., Vir-
ginia Uranium, Inc. v. Warren, 587 U. S. 761, 765 (2019)
(lead opinion of Gorsuch, J.).
Indeed, to do so would violate yet another rule of statu-
tory construction: “In all but the most unusual situations, a
single use of a statutory phrase must have a fxed meaning ”
across a statute. Cochise Consultancy, Inc. v. United States
ex rel. Hunt, 587 U. S. 262, 268 (2019). The PLRA includes
three other provisions mentioning “dismiss[als]” for “fail[ure]
to state a claim”—each enabling courts to dismiss sua sponte
certain prisoner suits on that ground. §§ 1915(e)(2)(B)(ii),
1915A(b); 42 U. S. C. § 1997e(c). No one here thinks those
provisions deprive courts of the ability to dismiss those suits
without prejudice. See Reply Brief 15; Brief for Respond-
ents 21–24; Brief for United States as Amicus Curiae 21–22.
Nor would that be a plausible position. The broad statutory
language—on its face covering dismissals both with and
without prejudice—tracks courts' ordinary authority to de-
cide whether a dismissal for failure to state a claim should
have preclusive effect. So reading the PLRA's three-strikes
rule to apply only to dismissals with prejudice would intro-
duce inconsistencies into the statute. The identical phrase
would then bear different meanings in provisions almost
next-door to each other.
Still, Lomax maintains that the phrase “dismissed [for]
fail[ure] to state a claim” in Section 1915(g) is a “legal term
of art” referring only to dismissals with prejudice. Reply
Brief 4. To support that view, he relies on a procedural rule
used to answer a different question. When a court dis-
misses a case for failure to state a claim, but neglects to
specify whether the order is with or without prejudice, how
should a later court determine its preclusive effect? Fed-
eral Rule of Civil Procedure 41(b), codifying an old equitable
principle, supplies the answer: It tells courts to treat the
Cite
as: 590 U. S. 595 (2020)
601
Opinion of the Court
dismissal “as an adjudication on the merits”—meaning a dis-
missa
l with prejudice. See Durant v. Essex Co., 7 Wall. 107,
109 (1869). According to Lomax, “Section 1915(g) should be
interpreted in light of this legal backdrop.” Brief for Peti-
tioner 17. He reasons: Because Rule 41(b) presumes that
an order stating only “dismissed for failure to state a claim”
is with prejudice, the same language when used in Sec-
tion 1915(g) should bear that same meaning. And if so, the
provision would assign a strike to only with-prejudice dis-
missals for failure to state a claim.
But that argument gets things backwards. The Rule
41(b) presumption (like its older equitable counterpart) does
not convert the phrase “dismissed for failure to state a claim”
into a legal term of art meaning “dismissed with prejudice”
on that ground. To the contrary, Rule 41(b) is necessary
because that phrase means only what it says: “dismissed for
failure to state a claim”—whether or not with prejudice. In
other words, the phrase's indifference to prejudicial effect is
what creates the need for a default rule to determine the
import of a dismissal when a court fails to make that clear.
Rule 41(b), then, actually undercuts Lomax's position: Its
very existence is a form of proof that the language used in
Section 1915(g) covers dismissals both with and without
prejudice. And here too, confrmation of the point comes
from the PLRA's other provisions referring to “dismiss[als]”
for “fail[ure] to state a claim.” See supra, at 600. If that
phrase had really become a legal term of art implying “with
prejudice,” then those provisions would prevent courts from
dismissing prisoner suits without prejudice for failure to
state a claim. But Lomax himself does not accept that im-
probable reading. See ibid. His supposed “term of art” is
strangely free-foating, transforming ordinary meaning in
one place while leaving it alone in all others.
Lomax also makes an argument based on the two other
grounds for dismissal listed in Section 1915(g). Recall that
the provision counts as strikes dismissals of actions that are
602 LOMAX
v. ORTIZ-MARQUEZ
Opinion of the Court
“frivolous” or “malicious,” along with those that fail to state
a
claim. See supra, at 598, n. 1. In Lomax's view, the frst
two kinds of dismissals “refect a judicial determination that
a claim is irremediably defective”—that it “cannot succeed
and should not return to court.” Brief for Petitioner 11, 22
(internal quotation marks omitted). To “harmonize [all]
three grounds for strikes,” he continues, the same must be
true of dismissals for failure to state a claim. Id., at 23; see
id., at 21 (invoking the “interpretive canon noscitur a sociis,
a word is known by the company it keeps” (internal quota-
tion marks omitted)). So Section 1915(g), Lomax concludes,
must capture only the subset of those dismissals that are
issued with prejudice—the ones disposing of “irredeemable”
suits. Id., at 21.
As an initial matter, the very premise of that argument is
mistaken. Contra Lomax's view, courts can and sometimes
do conclude that frivolous actions are not “irremediably de-
fective,” and thus dismiss them without prejudice. See,
e. g., Marts v. Hines, 117 F. 3d 1504, 1505 (CA5 1997); see
also Jackson v. Florida Dept. of Financial Servs., 479 Fed.
Appx. 289, 292 (CA11 2012) (similarly if less commonly, dis-
missing a malicious action without prejudice). Indeed, this
Court has suggested that a trial court might abuse its discre-
tion by dismissing an IFP suit with prejudice if “frivolous
factual allegations [can] be remedied through more specifc
pleading.” Denton v. Hernandez, 504 U. S. 25, 34 (1992).
So on Lomax's own metric—whether down the road the
plaintiff's claim might return—the dismissals he claims
would be outliers in Section 1915(g) in fact would have com-
pany. And because that is true, his reason for excluding
those decisions from the provision collapses. If dismissals
without prejudice for frivolousness count as a strike under
Section 1915(g), then why not for failure to state a claim too?
Still more fundamentally, Lomax is wrong to suggest that
every dismissed action encompassed in Section 1915(g) must
closely resemble frivolous or malicious ones. The point of
Cite
as: 590 U. S. 595 (2020)
603
Opinion of the Court
the PLRA, as its terms show, was to cabin not only abusive
but
also simply meritless prisoner suits. Before the PLRA,
the statute governing IFP claims targeted frivolous and ma-
licious actions, but no others. See Neitzke v. Williams, 490
U. S. 319, 328 (1989). In the PLRA, Congress chose to go
further—precisely by aiming as well at actions that failed to
state a claim. The theory was that a “food of nonmeritori-
ous claims,” even if not in any way abusive, was “effectively
preclud[ing] consideration of ” suits more likely to succeed.
Jones, 549 U. S., at 203. So we cannot, in the interest of
“harmonization,” interpret the phrase “failure to state a
claim” based on the pre-existing terms “frivolous” and “mali-
cious.” Cf. Babbitt v. Sweet Home Chapter, Communities
for Great Ore., 515 U. S. 687, 702, 705 (1995) (rejecting use
of the noscitur canon when “the Senate went out of its way
to add” a “broad word” to a statute). That would defeat the
PLRA's expansion of the statute beyond what was already
there.
III
The text of the PLRA's three-strikes provision makes this
case an easy call. A dismissal of a suit for failure to state a
claim counts as a strike, whether or not with prejudice. We
therefore affrm the judgment below.
It is so ordered.
604 OCTOBER
TERM, 2019
Syllabus
UNITED STATES FOREST SERVICE et al. v.
COWP
ASTURE RIVER PRESERVATION
ASSOCIATION et al.
certiorari to the united states court of appeals for
the fourth circuit
No. 18–1584. Argued February 24, 2020—Decided June 15, 2020*
Petitioner Atlantic Coast Pipeline, LLC (Atlantic), sought to construct an
approximately 604-mile natural gas pipeline from West Virginia to
North Carolina along a route that traversed 16 miles of land within the
George Washington National Forest. As relevant here, Atlantic se-
cured a special use permit from the United States Forest Service, ob-
taining a right-of-way for a 0.1-mile segment of pipe some 600 feet below
a portion of the Appalachian National Scenic Trail (Appalachian Trail
or Trail), which also crosses the National Forest. Respondents fled a
petition for review in the Fourth Circuit, contending, inter alia, that
the issuance of the special use permit for the right-of-way under the
Trail violated the Mineral Leasing Act (Leasing Act). Atlantic inter-
vened. The Fourth Circuit vacated the permit, holding that the Leas-
ing Act did not empower the Forest Service to grant the right-of-way
because the Trail became part of the National Park System when the
Secretary of the Interior delegated its authority over the Trail's admin-
istration to the National Park Service, and that the Leasing Act prohib-
its pipeline rights-of-way through lands in the National Park System.
Held: Because the Department of the Interior's decision to assign respon-
sibility over the Appalachian Trail to the National Park Service did not
transform the land over which the Trail passes into land within the
National Park System, the Forest Service had the authority to issue the
special use permit. Pp. 609–624.
(a) These cases involve the interaction of multiple federal laws. The
Weeks Act provided for the acquisition of lands for inclusion in the Na-
tional Forest System, stating that such lands “shall be permanently re-
served, held, and administered as national forest lands.” 16 U. S. C.
§ 521. The Forest Service, with authority granted by the Secretary of
Agriculture, has jurisdiction over the National Forest System, including
the George Washington National Forest. The National Trails System
*Together with No. 18–1587, Atlantic Coast Pipeline, LLC v. Cowpas-
ture River Preservation Association et al., also on certiorari to the
same court.
Cite
as: 590 U. S. 604 (2020)
605
Syllabus
Act (Trails Act) establishes national scenic and national historic trails,
16
U. S. C. § 1244(a), including the Appalachian Trail, § 1244(a)(1). It
also empowers the Secretary of the Interior to establish the Trail's loca-
tion and width by entering into “rights-of-way” agreements with other
federal agencies, States, local governments, and private landowners.
§§ 1246(a)(2), (d), (e). The Leasing Act enables any “appropriate agency
head” to grant “[r]ights-of-way through any Federal lands . . . for pipe-
line purposes,” 30 U. S. C. § 185(a), defning “Federal lands” as “all lands
owned by the United States,” except (as relevant) lands in the National
Park System, § 185(b). The National Park System is, in turn, defned
as “any area of land and water now and hereafter administered by
the Secretary of the Interior, through the National Park Service for
park, monument, historic, parkway, recreational, or other purposes.”
54 U. S. C. § 100501. Pp. 609–612.
(b) An examination of the interests and authority granted under the
Trails Act shows that the Forest Service “right-of-way” agreements
with the National Park Service for the Appalachian Trail did not con-
vert “Federal lands” under the Leasing Act into “lands” within the “Na-
tional Park System.” Pp. 612–619.
(1) A right-of-way is a type of easement. And easements grant
only nonpossessory rights of use limited to the purposes specifed in the
easement agreement: They are not land; they merely burden land that
continues to be owned by another. The same principles that apply to
right-of-way agreements between private parties apply here, even
though the Federal Government owns all lands involved. A right-of-
way between two agencies grants only an easement across the land, not
jurisdiction over the land itself. Read in light of basic property law
principles, then, the plain language of the Trails Act and the agreement
between the two agencies did not divest the Forest Service of jurisdic-
tion over the lands crossed by the Trail. Pp. 613–616.
(2) The various duties described in the Trails Act—that the Secre-
tary of the Interior (through the National Park Service) administers the
Trail “primarily as a footpath,” 16 U. S. C. § 1244(a)(1); can designate
Trail uses, provide Trail markers, and establish interpretative and infor-
mational sites, § 1246(c); and can regulate the Trail's “protection, man-
agement, development, and administration,” § 1246(i)—reinforce the
conclusion that the agency responsible for the Trail has the limited role
of administering a trail easement, but that the underlying land remains
within the Forest Service's jurisdiction. P. 617.
(3) This conclusion is also reinforced by the fact that Congress
spoke in terms of rights-of-way in the Trails Act rather than in terms
of land transfers, as it has unequivocally and directly done in multiple
other statutes when it has intended to transfer land from one agency to
606 UNITED
STATES FOREST SERVICE v. COWPASTURE
RIVER PRESERVATION ASSN.
Syllabus
another. See, e. g., Wild and Scenic Rivers Act, 16 U. S. C. § 1281(c).
Pp
. 618–619.
(c) Respondents' theory—that the National Park Service administers
the Trail, and therefore the lands that the Trail crosses—depends on
presuming, with no clear congressional command, a vast expansion of
the Park Service's jurisdiction and a signifcant curtailment of the For-
est Service's express authority to grant pipeline rights-of-way on “lands
owned by the United States.” 30 U. S. C. § 185(b). It also has striking
implications for federalism and private property rights, especially given
that Congress has used express language in other statutes when it has
intended to transfer lands between agencies. Pp. 619–623.
911 F. 3d 150, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Breyer, Alito, Gorsuch, and Kavanaugh, JJ., joined, and in which
Ginsburg, J., joined except as to Part III–B–2. Sotomayor, J., fled a
dissenting opinion, in which Kagan, J., joined, post, p. 624.
Anthony A. Yang argued the cause for petitioners in
No. 18–1584. With him on the briefs were Solicitor General
Francisco, Deputy Assistant Attorney General Grant, Dep-
uty Solicitor General Kneedler, Andrew C. Mergen, J. David
Gunter II, Avi M. Kupfer, Sarah Kathmann, and John M.
Henson. Paul D. Clement argued the cause for petitioner
i n No. 18 –1587. With h i m on the br iefs was Er in E.
Murphy.
Michael K. Kellogg argued the cause for respondents in
both cases. With him on the brief were Gregory G. Rapawy,
Bradley E. Oppenheimer, Austin D. Gerken, Jr., Amelia
Burnette, J. Patrick Hunter, Gregory Buppert, and Nathan
Matthews.†
†Briefs of amici curiae urging reversal in both cases were fled for the
State of West Virginia et al. by Patrick Morrisey, Attorney General of
West Virginia, Lindsay S. See, Solicitor General, and Thomas T. Lamp-
man, Assistant Solicitor General, and by the Attorneys General for their
respective States as follows: Steve Marshall of Alabama; Kevin G. Clark-
son of Alaska, Leslie Rutledge of Arkansas, Christopher M. Carr of Geor-
gia, Lawrence G. Wasden of Idaho, Curtis T. Hill, Jr., of Indiana, Derek
Schmidt of Kansas, Jeff Martin Landry of Louisiana, Tim Fox of Mon-
tana, Doug Peterson of Nebraska, Wayne Steneh jem of North Dakota,
Cite
as: 590 U. S. 604 (2020)
607
Opinion of the Court
Justice Thomas delivered the opinion of the Court.*
W
e granted certiorari in these consolidated cases to decide
whether the United States Forest Service has authority
Dave Yost of Ohio, Mike Hunter of Oklahoma, Jason R. Ravnsborg of
South Dakota, Ken Paxton of Texas, Sean Reyes of Utah, and Bridget
Hill of Wyoming; for the American Forest Resource Council et al. by Law-
son E. Fite; for Mountain Valley Pipeline, LLC, by Thomas C. Jensen,
Theodore B. Olson, and Amir C. Tayrani; for the National Association of
Manufacturers et al. by John C. Cruden, Peter J. Schaumberg, Peter Tols-
dorf, Paul G. Afonso, Richard S. Moskowitz, Sandra Y. Snyder, Daryl
Joseffer, and Michael Murray; for the United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL–CIO, et al. by Ellen O. Boardman and Jennifer
R. Simon; and for Rep. Jeff Duncan et al. by E. Travis Ramey and Wil-
liam Grayson Lambert.
Briefs of amici curiae urging affrmance in both cases were fled for the
State of Vermont et al. by Thomas J. Donovan, Attorney General of Ver-
mont, Benjamin D. Battles, Solicitor General, and Eleanor L. P. Spotts-
wood and Rachel E. Smith, Assistant Attorneys General, and by the At-
torneys General for their respective jurisdictions as follows: William Tong
of Connecticut, Kathleen Jennings of Delaware, Karl A. Racine of the
District of Columbia, Clare E. Connors of Hawaii, Kwame Raoul of Illi-
nois, Brian E. Frosh of Maryland, Maura Healey of Massachusetts, Keith
Ellison of Minnesota, Gurbir S. Grewal of New Jersey, Hector Balderas
of New Mexico, Letitia James of New York, Ellen F. Rosenblum of Ore-
gon, and Peter F. Neronha of Rhode Island; for the Commonwealth of
Virginia by Mark R. Herring, Attorney General of Virginia, Donald D.
Anderson, Deputy Attorney General, Toby J. Heytens, Solicitor General,
Martine E. Cicconi and Michelle S. Kallen, Deputy Solicitors General,
and Jessica M. Samuels, Assistant Solicitor General; for the Citizens
Equal Rights Foundation by James J. Devine, Jr.; for the City of Staunton
et al. by Douglas Guynn and Cale Jaffe; for the Natural Resources De-
fense Council et al. by Sarah E. Harrington, Erica Oleszczuk Evans, and
Sharon Buccino; for The Rutherford Institute by John W. Whitehead; for
the Wintergreen Property Owners Association et al. by Daniel L. Geyser,
Carolyn Elefant, and Michael J. Hirrel; and for Pamela Underhill et al.
by William S. Eubanks II and Kristin H. Gladd.
Briefs of amici curiae were fled in both cases for the Appalachian Trail
Conservancy by Keith Bradley, Peter S. Gould, Kelly Mihocik, Benjamin
Beaton, and Brendan Mysliwiec; for the Niskanen Center by David Book-
binder; and for Richard J. Pierce, Jr., by Mr. Pierce, pro se.
*Justice Ginsburg joins all but Part III–B–2 of this opinion.
608 UNITED
STATES FOREST SERVICE v. COWPASTURE
RIVER PRESERVATION ASSN.
Opinion of the Court
under the Mineral Leasing Act, 30 U. S. C. § 181 et seq., to
grant
rights-of-way through lands within national forests
traversed by the Appalachian Trail. 588 U. S. 948 (2019).
We hold that the Mineral Leasing Act does grant the Forest
Service that authority and therefore reverse the judgment
of the Court of Appeals for the Fourth Circuit.
I
A
In 2015, petitioner Atlantic Coast Pipeline, LLC (Atlantic)
fled an application with the Federal Energy Regulatory
Commission to construct and operate an approximately 604-
mile natural gas pipeline extending from West Virginia to
North Carolina. The pipeline's proposed route traverses 16
miles of land within the George Washington National Forest.
The Appalachian National Scenic Trail (Appalachian Trail
or Trail) also crosses parts of the George Washington Na-
tional Forest.
To construct the pipeline, Atlantic needed to obtain special
use permits from the United States Forest Service for the
portions of the pipeline that would pass through lands under
the Forest Service's jurisdiction. In 2018, the Forest Serv-
ice issued these permits and granted a right-of-way that
would allow Atlantic to place a 0.1-mile segment of pipe ap-
proximately 600 feet below the Appalachian Trail in the
George Washington National Forest.
B
Respondents Cowpasture River Preservation Association,
Highlanders for Responsible Development, Shenandoah Val-
ley Battlefelds Foundation, Shenandoah Valley Network, Si-
erra Club, Virginia Wilderness Committee, and Wild Vir-
ginia fled a petition for review in the Fourth Circuit. They
contended that the issuance of the special use permit for the
right-of-way under the Trail, as well as numerous other as-
pects of the Forest Service's regulatory process, violated the
Cite
as: 590 U. S. 604 (2020)
609
Opinion of the Court
Mineral Leasing Act (Leasing Act), 41 Stat. 437, 30 U. S. C.
§
181 et seq., the National Environmental Policy Act of 1969,
83 Stat. 852, 42 U. S. C. § 4321 et seq., the National Forest
Management Act of 1976, 90 Stat. 2952, 16 U. S. C. § 1604,
and the Administrative Procedure Act, 5 U. S. C. § 500 et seq.
Atlantic intervened in the suit.
The Fourth Circuit vacated the Forest Service's special
use permit after holding that the Leasing Act did not em-
power the Forest Service to grant the pipeline right-of-way
beneath the Trail. As relevant here, the court concluded
that the Appalachian Trail had become part of the National
Park System because, though originally charged with the
Trail's administration, 16 U. S. C. § 1244(a)(1), the Secretary
of the Interior delegated that duty to the National Park
Service, 34 Fed. Reg. 14337 (1969). In the Fourth Circuit's
view, this delegation made the Trail part of the National
Park System because the Trail was now an “area of land . . .
administered by the Secretary [of the Interior] acting
through the Director [of the National Park Service].” 54
U. S. C. § 100501. Because it concluded the Trail was now
within the National Park System, the court held that the
Trail was beyond the authority of “the Secretary of the Inte-
rior or appropriate agency head” to grant pipeline rights-of-
way under the Leasing Act. 30 U. S. C. § 185(a). See 911
F. 3d 150, 179–181 (CA4 2018).
1
II
These cases involve the interaction of multiple federal
laws. We therefore begin by summarizing the relevant stat-
utory and regulatory background.
A
Congress enacted the Weeks Act in 1911, Pub. L. 61–435,
36 Stat. 961, which provided for the acquisition of lands for
1
The Fourth Circuit also ruled for respondents on their other statu-
tory claims.
610 UNITED
STATES FOREST SERVICE v. COWPASTURE
RIVER PRESERVATION ASSN.
Opinion of the Court
inclusion in the National Forest System, see 16 U. S. C.
§§
516–517. The Weeks Act also directed that lands ac-
quired for the National Forest System “shall be permanently
reserved, held, and administered as national forest lands.”
§ 521. Though Congress initially granted the Secretary of
Agriculture the authority to administer national forest lands,
§ 472, the Secretary has delegated that authority to the For-
est Service, 36 CFR § 200.3(b)(2)(i) (2019).
What is now known as the George Washington National
Forest was established as a national forest in 1918, see Proc-
lamation No. 1448, 40 Stat. 1779, and renamed the George
Washington National Forest in 1932, Exec. Order No. 5867.
No party here disputes that the George Washington National
Forest was acquired for inclusion in the National Forest Sys-
tem and that it is under the jurisdiction of the Forest Serv-
ice. See 16 U. S. C. § 1609.
B
Enacted in 1968, the National Trails System Act (Trails
Act), among other things, establishes national scenic and na-
tional historic trails. 16 U. S. C. § 1244(a). See 82 Stat. 919,
codifed at 16 U. S. C. § 1241 et seq. The Appalachian Trail
was one of the frst two trails created under the Act.
§ 1244(a)(1).
Under the statute, the Appalachian Trail “shall be admin-
istered primarily as a footpath by the Secretary of the Inte-
rior, in consultation with the Secretary of Agriculture.”
Ibid. The statute empowers the Secretary of the Interior
to establish the location and width of the Appalachian Trail
by entering into “rights-of-way” agreements with other
federal agencies as well as States, local governments, and
private landowners. §§ 1246(a)(2), (d), (e). However, the
Trails Act also contains a proviso stating that “[n]othing con-
tained in this chapter shall be deemed to transfer among
Federal agencies any management responsibilities estab-
lished under any other law for federally administered lands
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wh ich are components of the Nati ona l Trai ls System. ”
§
1246(a)(1)(A).
The Trails Act currently establishes 30 national historic
and national scenic trails. See §§ 1244(a)(1)–(30). It as-
signs responsibility for most of those trails to the Secretary
of the Interior. Ibid. Though the Act is silent on the issue
of delegation, the Department of the Interior has delegated
the administrative responsibility over each of those trails to
either the National Park Service or the Bureau of Land Man-
agement, both of which are housed within the Department
of the Interior. Congressional Research Service, M. De
Santis & S. Johnson, The National Trails System: A Brief
Overview 2–3 (Table 1), 4 (Fig. 1) (2020). Currently, the Na-
tional Park Service administers 21 trails, the Bureau of Land
Management administers 1 trail, and the two agencies co-
administer 2 trails. Ibid. The Secretary of the Interior
delegated his authority over the Appalachian Trail to the
National Park Service in 1969. 34 Fed. Reg. 14337.
C
In 1920, Congress passed the Leasing Act, which enabled
the Secretary of the Interior to grant pipeline rights-of-way
through “public lands, including the forest reserves,” § 28, 41
Stat. 449. Congress amended the Leasing Act in 1973 to
provide that not only the Secretary of the Interior but also
any “appropriate agency head” may grant “[r]ights-of-way
through any Federal lands . . . for pipeline purposes.” Pub.
L. 93–153, 87 Stat. 576, codifed at 30 U. S. C. § 185(a). Nota-
bly, the 1973 amendment also defned “Federal lands” to in-
clude “all lands owned by the United States except lands in
the National Park System, lands held in trust for an Indian
or Indian tribe, and lands on the Outer Continental Shelf.”
87 Stat. 577, codifed at 30 U. S. C. § 185(b). In 1970, Con-
gress defned the National Park System as “any area of land
and water now and hereafter administered by the Secretary
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of the Interior through the National Park Service for park,
monument,
historic, parkway, recreational, or other pur-
poses.” § 2(b), 84 Stat. 826, codifed at 54 U. S. C. § 100501.
III
We are tasked with determining whether the Leasing Act
enables the Forest Service to grant a subterranean pipeline
right-of-way some 600 feet under the Appalachian Trail. To
do this, we frst focus on the distinction between the lands
that the Trail traverses and the Trail itself, because the lands
(not the Trail) are the object of the relevant statutes.
Under the Leasing Act, the “Secretary of the Interior or
appropriate agency head” may grant pipeline rights-of-way
across “Federa l l ands. ” 30 U. S. C. § 185(a) (emphasis
added). The Forest Service is an “appropriate agency head”
for “Federa l lands” over “wh ich [it] has jur isdic ti on. ”
§ 185(b)(3). As stated above, it is undisputed that the Forest
Service has jurisdiction over the “Federal lands” within the
George Washington National Forest. The question before
us, then, becomes whether these lands within the forest
have been removed from the Forest Service's jurisdiction
and placed under the Park Service's control because the Trail
crosses them. If no transfer of jurisdiction has occurred,
then the lands remain National Forest lands, i. e., “Federal
lands” subject to the grant of a pipeline right-of-way. If, on
the other hand, jurisdiction over the lands has been trans-
ferred to the Park Service, then the lands fall under the
Leasing Act's carveout for “lands in the National Park
System,” thus precluding the grant of the right-of-way.
§ 185(b)(1) (emphasis added).
We conclude that the lands that the Trail crosses remain
under the Forest Service's jurisdiction and, thus, continue to
be “Federal lands” under the Leasing Act.
A
We begin our analysis by examining the interests and au-
thority granted under the Trails Act. Pursuant to the Trails
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Act, the Forest Service entered into “right-of-way” agree-
ments
with the National Park Service “for [the] approxi-
mately 780 miles of Appalachian Trail route within national
forests,” including the George Washington National Forest.
36 Fed. Reg. 2676 (1971); see also 16 U. S. C. § 1246(a)(2); 36
Fed. Reg. 19805.
2
These “right-of-way” agreements did not
convert “Federal lands” into “lands” within the “National
Park System.”
1
A right-of-way is a type of easement. In 1968, as now,
principles of property law defned a right-of-way easement
as granting a nonowner a limited privilege to “use the lands
of another.” Kelly v. Rainelle Coal Co., 135 W. Va. 594, 604,
64 S. E. 2d 606, 613 (1951); Builders Supplies Co. of Golds-
boro, N. C., Inc. v. Gainey, 282 N. C. 261, 266, 192 S. E. 2d
449, 453 (1972); see also R. Powell & P. Rohan, Real Property
§ 405 (1968); Restatement (First) of Property § 450 (1944).
Specifcally, a right-of-way grants the limited “right to pass
. . . through the estate of another.” Black's Law Dictionary
1489 (4th ed. 1968). Courts at the time of the Trails Act's
enactment acknowledged that easements grant only nonpos-
sessory rights of use limited to the purposes specifed in the
easement agreement. See, e. g., Bunn v. Offutt, 216 Va. 681,
684, 222 S. E. 2d 522, 525 (1976). And because an easement
does not dispossess the original owner, Barnard v. Gaumer,
146 Colo. 409, 412, 361 P. 2d 778, 780 (1961), “a possessor and
an easement holder can simultaneously utilize the same par-
cel of land,” J. Bruce & J. Ely, Law of Easements and Li-
censes in Land § 1:1, p. 1–5 (2015). Thus, it was, and is, ele-
mentary that the grantor of the easement retains ownership
over “ th e l and i t sel f. ” M inneapo l is Ath l e t i c Club v.
Cohler, 287 Minn. 254, 257, 177 N. W. 2d 786, 789 (1970) (em-
phasis added). Stated more plainly, easements are not land,
2
The specifcs of the agreement between the two agencies is not in the
record before us.
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they merely burden land that continues to be owned by an-
other
. See Bruce, Law of Easements and Licenses in Land
§ 1:1, at 1–2.
If analyzed as a right-of-way between two private land-
owners, determining whether any land had been transferred
would be simple. If a rancher granted a neighbor an ease-
ment across his land for a horse trail, no one would think
that the rancher had conveyed ownership over that land.
Nor would anyone think that the rancher had ceded his own
right to use his land in other ways, including by running a
water line underneath the trail that connects to his house.
He could, however, make the easement grantee responsible
for administering the easement apart from the land. Like-
wise, when a company obtains a right-of-way to lay a seg-
ment of pipeline through a private owner's land, no one
would think that the company had obtained ownership over
the land through which the pipeline passes.
Although the Federal Government owns all lands involved
here, the same general principles apply. We must ascertain
whether one federal agency has transferred jurisdiction over
lands—meaning “jurisdiction to exercise the incidents of
ownership”—to another federal agency. Brief for Petitioner
Atlantic Coast Pipeline, LLC, 22–23, n. 2. The Trails Act
refers to the granted interests as “rights-of-way,” both when
describing agreements with the Federal Government and
w ith pr ivate and st ate proper ty owners. 16 U. S. C.
§§ 1246(a)(2), (e). When applied to a private or state prop-
erty owner, “right-of-way” would carry its ordinary meaning
of a limited right to enjoy another's land. Nothing in the
statute suggests that the term adopts a more expansive
meaning when the right is granted to a federal agency,
and we do “not lightly assume that Congress silently at-
taches different meanings to the same term in the same . . .
statut[e],” Azar v. Allina Health Services, 587 U. S. 566, 574
(2019). Accordingly, as would be the case with private or
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Opinion of the Court
state property owners, a right-of-way between two agencies
grants
only an easement across the land, not jurisdiction
over the land itself.
3
The dissent notes that the Federal Government has re-
ferred to the Trail as an “area” and a “unit” and has de-
scribed the Trail in terms of “acres.” See post, at 630–633,
635–636 (opinion of Sotomayor, J.). In the dissent's view,
this indicates that the Trail and the land are the same. This
is not so. Like other right-of-way easements, the Trail bur-
dens “a particular parcel of land.” Bruce, Law of Ease-
ments and Licenses in Land § 1:1, at 1–6. It is thus not sur-
prising that the Government might refer to the Trail as an
“area,” much as one might mark out on his property the
“area” of land burdened by a sewage easement. The fact
remains that the land and the easement are still separate.
The dissent also cites provisions of the Trails Act that dis-
cuss “lands” to be included in the Trail. See post, at 634–
635. But this, too, is consistent with our conclusion that the
Trail is an easement. Like all easements, the parcel of land
burdened by the easement has particular metes and bounds.
See, e. g., Carnemella v. Sadowy, 147 App. Div. 2d 874, 876,
538 N. Y. S. 2d 96, 98 (1989) (“[T]he subject easement . . .
reasonably described the portion of the property where the
easement existed”); Sorrell v. Tennessee Gas Transmission
Co., 314 S. W. 2d 193, 195–196 (Ky. 1958). In fact, without
such descriptions, parties to an easement agreement would
be unable to understand their rights or enforce another par-
3
It is of no moment that the Trails Act also permits the agency responsi-
ble for the Trail to grant “rights-of-way upon, over, under, across, or along
any component of the national trails system.” 16 U. S. C. § 1248(a). See
post, at 635 (Sotomayor, J., dissenting). This provision merely extends
a positive grant of authority to the agency responsible for the Trail; it
does not divest the original agency of that same authority. See J. Bruce &
J. Ely, The Law of Easements and Licenses in Land § 1:1, p. 1–5 (2015)
(noting that “a possessor and an easement holder can simultaneously uti-
lize the same parcel of land”).
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ty's obligations under the easement agreement. Thus, there
is
nothing noteworthy about the fact that the Trails Act dis-
cusses whether particular lands should be included within
the metes and bounds of the tracts of land burdened by the
easement. In short, none of the characterizations identifed
by the dissent changes the fact that the burden on the land
and the land itself remain separate.
4
In sum, read in light of basic property law principles, the
plain language of the Trails Act and the agreement between
the two agencies did not divest the Forest Service of jurisdic-
tion over the lands that the Trail crosses. It gave the De-
partment of the Interior (and by delegation the National
Park Service) an easement for the specifed and limited pur-
pose of establishing and administering a Trail, but the land
itself remained under the jurisdiction of the Forest Service.
To restate this conclusion in the parlance of the Leasing Act,
the lands that the Trail crosses are still “Federal lands,” 30
U. S. C. § 185(a), and the Forest Service may grant a pipeline
right-of-way through them—just as it granted a right-of-way
for the Trail. Sometimes a complicated regulatory scheme
may cause us to miss the forest for the trees, but at bottom,
these cases boil down to a simple proposition: A trail is a
trail, and land is land.
4
The dissent suggests that we are not engaging in statutory interpreta-
tion and that, relatedly, we should not look to state law for our analysis.
See post, at 631, n. 8, 635, n. 9. Neither criticism is warranted. We are
principally concerned with the meaning of the term “right-of-way,” which,
as the dissent's own authority acknowledges, carries the same meaning
whether it appears in federal or state law. In New Mexico v. United
States Trust Co., 172 U. S. 171 (1898), for instance, the Court interpreted
the term in a federal statute. There, the Court acknowledged that there
is a difference between “ `an easement in land [and] the land itself ' ” and
that a “right of way . . . constitute[s] no . . . right of possession of the
land itself.” Id., at 182, 184. We have more recently confrmed that it is
appropriate to look to “basic common law principles” when interpreting
the terms right-of-way and easement. See Marvin M. Brandt Revocable
Trust v. United States, 572 U. S. 93, 106 (2014); id., at 105, n. 4.
Cite
as: 590 U. S. 604 (2020)
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Opinion of the Court
2
The
various duties described in the Trails Act reinforce
that the agency responsible for the Trail has a limited role
of administering a trail easement, but that the underlying
land remains within the jurisdiction of the Forest Service.
The Trails Act states that the Secretary of the Interior (and
by delegation the National Park Service) shall “administe[r]”
the Trail “primarily as a footpath.” 16 U. S. C. § 1244(a)(1).
The Secretary is charged with designating Trail uses, pro-
viding Trail markers, and establishing interpretative and in-
formational sites “to present information to the public about
the [T]rail.” § 1246(c). He also has the authority to pass
regulations governing Trail protection and good conduct and
can regulate the “protection, management, development, and
administration” of the Trail. § 1246(i). Though the Trails
Act states that the responsible agency shall “provide for”
the maintenance of the Trail, § 1246(h)(1) (emphasis added),
it is the Forest Service that performs the necessary physical
work. As the Government explained at oral argument (and
as respondents did not dispute), “[i]f a tree falls on forest
lands over the trail, it's the Forest Service that's responsible
for it. You don't call the nine [National] Park Service em-
ployees at Harpers Ferry [in West Virginia] and ask them to
come out and fx the tree.” Tr. of Oral Arg. 5. These statu-
tory duties refer to the Trail easement, not the lands over
which the easement passes.
The dissent resists this conclusion by asserting that the
National Park Service “administers” the Trail, and that so
long as that is true, the Trail is land within the National
Park System. See post, at 637–638. But the National Park
Service does not administer the “land” crossed by the Trail.
It administers the Trail as an easement—an easement that
is separate from the underlying land.
5
5
The dissent argues that its position is supported by the fact that the
terms “administer” and “manage” are “terms of art.” Post, at 637. The
dissent, however, does not demonstrate that either term carries a “widely
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3
Fi
nally, Congress has used unequivocal and direct lan-
guage in multiple statutes when it wished to transfer land
from one agency to another, just as one would expect if a
property owner conveyed land in fee simple to another pri-
vate property owner. In the Wild and Scenic Rivers Act,
for instance, which was enacted the same day as the Trails
Act, Congress specifed that “[a]ny component of the national
wild and scenic rivers system that is administered by the
Secretary of the Interior through the National Park Service
shall become a part of the [N]ational [P]ark [S]ystem.”
§ 10(c), 82 Stat. 916, codifed at 16 U. S. C. § 1281(c) (emphasis
added). That statute also explicitly permits the head of an
agency “to transfer to the appropriate secretary jurisdiction
over such lands.” § 6(e), 82 Stat. 912–913, codifed at 16
U. S. C. § 1277(e) (emphasis added). Congress has also au-
thorized the Department of the Interior “to transfer to the
jurisdiction of the Secretary of Agriculture for national for-
est purposes lands or interests in lands acquired for or in
connection with the Blue Ridge Parkway” and specifes that
“[l]ands transferred under this Act shall become national for-
est lands.” Pub. L. 82–336, 66 Stat. 69 (emphasis added).
Similar language appears in a host of other statutes. See
§§ 5(a)(2), 8(c)(2), 114 Stat. 2529, 2533; Pub. L. 89–446, 80
Stat. 199; § 7(c), 79 Stat. 217; Pub. L. 88–415, 78 Stat. 388.
The fact that Congress chose to speak in terms of rights-of-
way in the Trails Act, rather than in terms of land transfers,
reinforces the conclusion that the Park Service has a limited
role over only the Trail, not the lands that the Trail crosses.
See Reves v. Ernst & Young, 507 U. S. 170, 178–179 (1993).
accepted . . . meaning,” FCC v. AT&T Inc., 562 U. S. 397, 405 (2011) (inter-
nal quotation marks omitted), let alone that Congress “borrow[ed] terms
of art in which are accumulated the legal tradition and meaning of centu-
ries of practice,” Carter v. United States, 530 U. S. 255, 264 (2000) (internal
quotation marks omitted; emphasis deleted).
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For these reasons, we hold that the Trails Act did not
transfer
jurisdiction of the lands crossed by the Trail from
the Forest Service to the Department of the Interior. It
created a trail easement and gave the Department of the
Interior the administrative responsibilities concomitant with
administering the Trail as a trail. Accordingly, because the
Department of the Interior had no jurisdiction over any
lands, its delegation to the National Park Service did not
convert the Trail into “lands in the National Park System,”
30 U. S. C. § 185(b)(1) (emphasis added)—i. e., an “area of
land . . . administered by the Secretary [of the Interior]
acting through the Director [of the National Park Service].”
54 U. S. C. § 100501 (emphasis added). The Forest Service
therefore retained the authority to grant Atlantic a pipeline
right-of-way.
B
1
Respondents take a markedly different view, which is
shared by the dissent. According to respondents, the Trail
cannot be separated from the underlying land. In their
view, if the National Park Service administers the Trail, then
it also administers the lands that the Trail crosses, and no
pipeline rights-of-way may be granted.
Respondents' argument that the National Park Service ad-
ministers the Trail (and therefore the lands that the Trail
crosses) proceeds i n four steps. First, the Trai ls Ac t
granted the Department of the Interior the authority to ad-
minister the Trail. 16 U. S. C. § 1244(a)(1). Second, the De-
partment of the Interior delegated those responsibilities to
the National Park Service in 1969. 34 Fed. Reg. 14337.
Third, in 1970, Congress defned the National Park System
to include “any area of land and water administered by the
Secretary [of the Interior] acting through the Director [of
the National Park Service].” 54 U. S. C. § 100501. Under
respondents' view, the 1970 National Park System defnition
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made the Trail part of the National Park System. But one
more
step was still required to place the Trail outside the
Forest Service's Leasing Act pipeline authority. That fnal
step occurred in 1973, when the amendment to the Leasing
Act carved out lands in the National Park System from the
defnition of the “Federal lands” through which pipeline
rights-of-way could be granted. 30 U. S. C. § 185(b)(1). Be-
cause the Trail had become part of the National Park Service
in 1970, respondents conclude that the 1973 carveout applied
to the Trail. Therefore, in their view, the Forest Service
cannot grant pipeline rights-of-way under the parcels on
which there is a right-of-way for the Appalachian Trail.
Th is circuitous path misses the mark. As descr ibed
above, under the plain language of the Trails Act and basic
property principles, responsibility for the Trail and jurisdic-
tion over the lands that the Trail crosses can and must be
separated for purposes of determining whether the Forest
Service can grant a right-of-way. See supra, at 612–616.
2
Even accepting respondents' argument on its own terms,
however, we remain unpersuaded. Respondents' entire the-
ory depends on an administrative action about which the
statutes at issue are completely silent: the Department of
the Interior's voluntary decision to assign responsibility over
a given trail to the National Park Service rather than to
the Bureau of Land Management. To reiterate, respondents
contend that the Department of the Interior's decision to del-
egate responsibility over a trail to the National Park Service
renders that trail an “area of land . . . administered by the
Secretary [of the Interior], acting through the [Park Serv-
ice.]” 54 U. S. C. § 100501. Respondents' theory requires
us to accept that, without a word from Congress, the Depart-
ment of the Interior has the power to vastly expand the
scope of the National Park Service's jurisdiction through its
delegation choices. See Addendum to Reply Brief for Peti-
Cite
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Opinion of the Court
tioner Atlantic Coast Pipeline, LLC, 1a–2a. After all, re-
spondents'
view would not just apply to the approximately
2,000-mile-long Appalachian Trail. It would apply equally
to all 21 national historic and national scenic trails currently
administered by the National Park Service. See Congres-
sional Research Service, National Trails System. Under
our precedents, when Congress wishes to “ `alter the funda-
mental details of a regulatory scheme,' ” as respondents con-
tend it did here through delegation, we would expect it to
speak with the requisite clarity to place that intent beyond
dispute. See Epic Systems Corp. v. Lewis, 584 U. S. 497, 515
(2018) (quoting Whitman v. American Trucking Assns., Inc.,
531 U. S. 457, 468 (2001)). We will not presume that the act
of delegation, rather than clear congressional command,
worked this vast expansion of the Park Service's jurisdiction
and signifcant curtailment of the Forest Service's express
authority to grant pipeline rights-of-way on “lands owned by
the United States.” 30 U. S. C. § 185(b).
Respondents' theory also has striking implications for fed-
eralism and private property rights. Respondents do not
contest that, in addition to federal lands, these 21 trails cross
lands owned by States, local governments, and private land-
owners. See also post, at 643 (acknowledging that the Trail
alone “comprises 58,110.94 acres of Non-Federal land, includ-
ing 8,815.98 acres of Private land” (internal quotation marks
omitted)). Under respondents' view, these privately owned
and state-owned lands would also become lands in the Na-
tional Park System.
6
Our precedents require Congress to
6
The dissent contends that this concern is misplaced because, under its
view, though the National Park Service will be administering the thou-
sands of miles of land that the 21 trails cross, the Federal Government will
not have ownership over it. See post, at 641–642. As explained supra,
at 612–616, this argument suffers from the same faw—namely, that the
Trail easement and the land that the Trail crosses are one and the same.
Moreover, under the dissent's view, the National Park Service would still
gain power over numerous tracts of privately owned and state-owned land.
The dissent cites no authority to explain why this assertion of “administra-
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Opinion of the Court
enact exceedingly clear language if it wishes to signifcantly
a
lter the balance between federal and state power and the
power of the Government over private property. Cf. Greg-
ory v. Ashcroft, 501 U. S. 452, 460 (1991).
Finally, reliance on the Department of the Interior's dele-
gation of its Trails Act authority is especially questionable
here, given that Congress has used express language in
other statutes when it wished to transfer lands between
agencies. See supra, at 618. Congress not only failed to
enact similar language in the Trails Act, but it clearly ex-
pressed the opposite view. The entire Trails Act must be
tive” jurisdiction would not pose many of the same diffculties as outright
ownership. For instance, the National Park Service provides for the
maintenance of the Trail where it crosses federal lands. 16 U. S. C.
§ 1246(h)(1). Over half of the States through which the Trail passes have
analogous laws for state-owned lands. See, e. g., N. C. Gen. Stat. Ann.
§ 143B–135.76 (2019); Tenn. Code Ann. §§ 11–11–106, 11–11–117 (2012); Va.
Code Ann. § 10.1–203 (2018); Md. Nat. Res. Code Ann. § 5–1001 (2018); 64
Pa. Cons. Stat. § 803(b) (2010); N. J. Stat. Ann. § 13:8–39 (West 2003); Mass.
Gen. Laws, ch. 132A, § 12 (2018); Conn. Gen. Stat. §§ 23–69, 23–70 (2017);
N. H. Rev. Stat. Ann. § 216–D:2 (2019); Me. Rev. Stat. Ann., Tit. 12, § 1892
(2020 Cum. Supp.). The dissent's view would allow the Federal Govern-
ment to displace all such laws. Attempting to downplay the implications
of its position, the dissent asserts that the National Park Service already
has such jurisdiction under the Trails Act and its implementing regula-
tions. See post, at 641, n. 13. This, too, is incorrect. Recognizing the
fact that “[National Park Service] lands are intermingled with private,
local, [and] state” lands, 67 Fed. Reg. 8479 (2002), the National Park Serv-
ice has concluded that the regulations governing the Trail pointed to by
the dissent “do not apply on non-federally owned lands,” 36 CFR § 1.2(b)
(2019); see also 48 Fed. Reg. 30253 (1983); Dept. of Interior, W. Janssen,
Appalachian National Scenic Trail, Superintendent's Compendium of Des-
ignations, Closures, Permit Requirements and Other Restrictions Imposed
Under Discretionary Authority § 5, p. 3 (2019) (“The rules contained in
this Compendium apply to all persons entering, using, visiting or other-
wise present on federally owned lands”). Thus, the dissent points to noth-
ing indicating that the National Park Service has ever adopted its novel
theory, with its attendant federalism concerns.
Cite
as: 590 U. S. 604 (2020)
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Opinion of the Court
read against the backdrop of the Weeks Act, which states
that
lands acquired for the National Forest System—includ-
ing the George Washington National Forest—“shall be per-
manently reserved, held, and administered as national forest
lands.” 16 U. S. C. § 521. The Trails Act further provides
that “[n]othing contained in this chapter shall be deemed to
transfer among Federal agencies any management responsi-
bilities established under any other law for federally admin-
istered lands which are components of the National Trails
System. ” § 1246(a)(1)(A). These two provisions, when
combined with the Trails Act's use of the term “rights-of-
way” and the administrative duties set out in the Trails Act,
provide much clearer—and more textual—guides to Con-
gress' intent than an agency's silent decision to delegate re-
sponsibilities to the National Park Service.
In sum, we conclude that the Department of the Interior's
unexplained decision to assign responsibility over certain
trails to the National Parks System and the Leasing Act's
defnition of federal lands simply cannot bear the weight of
respondents' interpretation.
IV
We hold that the Department of the Interior's decision to
assign responsibility over the Appalachian Trail to the Na-
tional Park Service did not transform the land over which
the Trail passes into land within the National Park System.
Accordingly, the Forest Service had the authority to issue
the permit here.
7
7
Objections that a pipeline segment interferes with rights of use en-
joyed by the National Park Service would present a different issue. See
Bruce, Law of Easements and Licenses in Land § 1:1. These cases do not
present anything resembling such a scenario. Under the current pro-
posal, the workstations for laying the challenged segment of the pipeline
will be located on private land, approximately 1,400 feet and 3,400 feet
respectively from the Trail. Atlantic plans to use a method of drilling
that will not require the company to clear any land or dig on the Trail's
624 UNITED
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RIVER PRESERVATION ASSN.
Sotomayor, J., dissenting
For the foregoing reasons, we reverse the judgment of the
Cour
t of Appeals and remand the cases for further proceed-
ings consistent with this opinion.
It is so ordered.
Justice Sotomayor, with whom Justice Kagan joins,
dissenting.
The majority's complicated discussion of private-law ease-
ments, footpath maintenance, differently worded statutes,
and policy masks the simple (and only) dispute here. Is the
Appalachian National Scenic Trail “lan[d] in the National
Park System”? 30 U. S. C. § 185(b)(1). If it is, then the For-
est Service may not grant a natural-gas pipeline right-of-way
that crosses the Trail on federally owned land. So says the
Mineral Leasing Act, and the parties do not disagree. See
Brief for Petitioner Atlantic Coast Pipeline, LLC, 10; Brief
for Federal Petitioners 3; Brief for Respondents 1.
By defnition, lands in the National Park System include
“any area of land” “administered” by the Park Service for
“park, monument, historic, parkway, recreational, or other
purposes.” 54 U. S. C. § 100501. So says the National Park
Service Organic Act, and the parties agree. See Brief for
Petitioner Atlantic Coast Pipeline, LLC, 38; Brief for Federal
Petitioners 45–46; Brief for Respondents 5–6.
The Appalachian Trail, in turn, is “administered” by the
Park Service to ensure “outdoor recreation” and to conserve
“nationally signifcant scenic, historic, natural, or cultural
qualities.” §§ 3(b), 5(a)(1), 82 Stat. 919–920; see also 34 Fed.
Reg. 14337 (1969). So say the National Trails System Act
and relevant regulations, and again the parties agree. See
Brief for Petitioner Atlantic Coast Pipeline, LLC, 6, 8–9;
Brief for Federal Petitioners 9, 26; Brief for Respondents 5.
surface. The entry and exit sites will not be visible from the Trail, nor
will any detour be required. And, the fnal pipeline will lie approximately
600 feet below the Trail.
Cite
as: 590 U. S. 604 (2020)
625
Sotomayor, J., dissenting
Thus, as the Government puts it, the only question here is
whether
parts of the Appalachian Trail are “ `lands' ” within
the meaning of those statutes. Brief for Federal Petitioners
3. Those laws, a half century of agency understanding, and
common sense confrm that the Trail is land, land on which
generations of people have walked. Indeed, for 50 years
the “Federal Government has referred to the Trail” as a
“ `unit' ” of the National Park System. Ante, at 615; see Part
I–C, infra. A “unit” of the Park System is by defnition
either “land” or “water” in the Park System. 54 U. S. C.
§§ 100102(6), 100501. Federa l law does not disting uish
“land” from the Trail any more than it distinguishes “land”
from the many monuments, historic buildings, parkways, and
recreational areas that are also units of the Park System.
Because the Trail is land in the Park System, “no federal
agency” has “authority under the Mineral Leasing Act to
grant a pipeline right-of-way across such lands.” Brief for
Federal Petitioners 3.
By contrast, today's Court suggests that the Trail is not
“land” in the Park System at all. The Court strives to sepa-
rate “the lands that the Trail traverses” from “the Trail it-
self,” reasoning that the Trail is simply an “easement,” “not
land.” Ante, at 612, 613. In doing so, however, the Court
relies on anything except the provisions that actually answer
the question presented. Because today's Court condones
the placement of a pipeline that subverts the plain text of
the statutes governing the Appalachian Trail, I respectfully
dissent.
I
Petitioner Atlantic Coast Pipeline, LLC, seeks to construct
a natural-gas pipeline across the George Washington Na-
tional Forest. The proposed route traverses 21 miles of na-
tional forests and requires crossing 57 rivers, streams, and
lakes within those forests. See 911 F. 3d 150, 155 (CA4
2018) (case below in No. 18–1584); App. in No. 18–1144 (CA4),
p. 1659. The plan calls for “clearing trees and other vegeta-
626 UNITED
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RIVER PRESERVATION ASSN.
Sotomayor, J., dissenting
tion from a 125-foot right of way (reduced to 75 feet in wet-
lands)
through the national forests, digging a trench to bury
the pipeline, and blasting and fattening ridgelines in moun-
tainous terrains.” 911 F. 3d, at 155. Construction noise
will affect Appalachian Trail use 24 hours a day. See App.
79–80. Atlantic's machinery (including the artifcial lights
required to work all night) will dim the stars visible from
the Trail. See id., at 80. As relevant here, at one stretch
the pipeline would cross the Trail.
1
A
Three interlocking statutes foreclose this proposal. The
Mineral Leasing Act authorizes the Secretary of the Interior
“or appropriate agency head” to grant rights-of-way for
natural-gas pipelines “ through any Federa l lands. ” 30
U. S. C. § 185(a); see also § 185(q) (governing renewals of
pre-existing pipeline rights-of-way “across Federal lands”).
2
“For the purposes of ” § 185, however, “ `Federal lands' ” ex-
clude “lands in the National Park System.” § 185(b). Thus,
as all acknowledge, if a proposed pipeline would cross any
land in the Park System, then no federal agency would have
“authority under the Mineral Leasing Act to grant” a “right-
of-way across” that land. Brief for Federal Petitioners 3;
1
The Court of Appeals for the Fourth Circuit also found that Atlantic's
proposal may confict with several environmental laws, including the Na-
tional Forest Management Act and the National Environmental Policy
Act. See 911 F. 3d, at 154–155, 160–179 (remanding for further agency
review). Those aspects of the Fourth Circuit's decision are not before
this Court.
2
If the “surface” of “all of the Federal lands involved” is “under the
jurisdiction of one Federal agency,” then the head of that agency (rather
than the Secretary of the Interior) has authority to grant the right-of-way
across federal land. 30 U. S. C. § 185(c)(1). If, by contrast, the surface of
that land “is administered by the Secretary [of the Interior] or by two or
more Federal agencies,” then only the Secretary may grant the right-of-
way. § 185(c)(2).
Cite
as: 590 U. S. 604 (2020)
627
Sotomayor, J., dissenting
see also Brief for Petitioner Atlantic Coast Pipeline, LLC,
10;
Brief for Respondents 1.
3
Although the Mineral Leasing Act does not defne “lands
in the National Park System,” the Park Service Organic Act
does. Under the Organic Act, the Park System and any
“unit” of the Park System “include any area of land and
water administered by the Secretary” of the Interior, “acting
through the Director” of the Park Service, for “park, monu-
ment, historic, parkway, recreational, or other purposes.”
54 U. S. C. §§ 100102, 100501. That defnition is sweeping;
whether land or water, “any area” so “administered” by the
Park Service is in the Park System. § 100501.
4
In turn, the National Trails System Act of 1968 (Trails
Act), 82 Stat. 919, provides that the Appalachian Trail “shall
be administered” “by the Secretary of the Interior” to “pro-
vide for maximum outdoor recreation potential and for the
conservation and enjoyment” of “nationally signifcant sce-
nic, historic, natural, or cultural qualities.” §§ 3(b), 5(a)(1),
id., at 919–920; see also 16 U. S. C. §§ 1242(a)(2), 1244(a)(1).
The Trails Act provides that the Secretary of the Interior
has authority to “grant easements and rights-of-way,” among
other th i ngs, “under ” the Appa lach ian Trai l's sur face.
3
Although the Mineral Leasing Act's right-of-way authority excludes
lands in the Park System, Congress may enact separate legislation permit-
ting natural-gas pipelines across such lands. See, e. g., § 1(a), 126 Stat.
2441 (providing that “[t]he Secretary of the Interior may issue right-of-
way permits” for certain natural-gas pipelines across Glacier National
Park). Here, however, Atlantic and the Government have identifed no
other permitting authority besides the Mineral Leasing Act.
4
The legal meaning of “land” when Congress enacted the relevant stat-
utes was “any ground, soil, or earth whatsoever.” Black's Law Dictionary
1019 (4th ed. 1968). The ordinary meaning of land was much the same.
Webster's New International Dictionary 1388 (2d ed. 1949) (“The solid
part of the surface of the earth, as distinguished from water”; “Any
ground, soil, or earth whatsoever . . . and everything annexed to it,
whether by nature . . . or by man”).
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Sotomayor, J., dissenting
§ 9(a), 82 Stat. 925; see also 16 U. S. C. § 1248(a).
5
In
1969, the
Secretary of the Interior assigned all these powers to the Park
Service, naming it the Trail's “land administering bureau.”
34 Fed. Reg. 14337. Since then, the Federal Government has
consistently identifed the Trail as a “ `unit' ” of, and thus
land in, the National Park System. 54 U. S. C. §§ 100102(6),
100501; see also, e. g., ante, at 615; Part I–C, infra.
By statutory defnition, the Appalachian Trail is land in
the National Park System, and the Mineral Leasing Act does
not permit pipeline rights-of-way across it.
B
Statutory history reinforces that the Appalachian Trail is
land in the National Park System. When the Trails Act des-
ignated the Appalachian Trail in 1968, then-existing law pro-
vided that “all federally owned or controlled lands” adminis-
tered by the Park Service for certain purposes were within
the Park System. § 2(a), 67 Stat. 496. At the time, though,
many “lands” owned by the Federal Government were “su-
pervis[ed]” by the Park Service “pursuant to cooperative
agreement[s]” but technically “under the administrative ju-
risdiction” of other federal agencies. § 2(b), ibid. The law
defned these as “ `miscellaneous areas' ” outside of the Park
System. Ibid.
In 1970, after the Park Service had begun its role as the
Trail's land-administering bureau, Congress enacted the
General Authorities Act. This Act declared that the Park
System had “grown to include superlative natural, historic,
and recreation areas in every major region” and Territory of
the United States, and that the Act's “purpose” was “to in-
clude all such areas in the [Park] System and to clarify the
authorities applicable to the system.” Pub. L. 91–383, § 1,
84 Stat. 825. To that end, Congress eliminated the “ `miscel-
5
It is undisputed that 16 U. S. C. § 1248 does not authorize rights-of-
way for natural-gas pipelines. Atlantic therefore does not rely on this
provision.
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as: 590 U. S. 604 (2020)
629
Sotomayor, J., dissenting
laneous areas' ” classifcation, see § 2(a), id., at 826, and
amended
the Park Service Organic Statute to defne the Na-
tional Park System as “ `any area of land and water now or
hereafter administered by the Secretary of the Interior
through the National Park Service.' ” § 2(b), ibid.; see also
54 U. S. C. §§ 100102(2), (5), (6), 100501. Of course, the Ap-
palachian Trail was then (and “ `[t]hereafter' ”) “ `adminis-
tered by the Secretary of the Interior through the National
Park Service.' ” § 2(b), 84 Stat. 826.
In 1973, having broadly defned lands in the Park System,
Congress amended the Mineral Leasing Act by eliminating
authority to grant rights-of-way across those lands. Before
then, the Mineral Leasing Act had provided limited permis-
sion to grant rights-of-way through “public lands,” § 28, 41
Stat. 449, a term of art referring to certain federally owned
land that had never been owned by a State or private indi-
vidual, see Wallis v. Pan American Petroleum Corp., 384
U. S. 63, 65, and n. 2 (1966). The 1973 amendments replaced
the Mineral Leasing Act's reference to “public lands” with
“ `all lands owned by the United States' ” and carved out
“ `lands in the National Park System.' ” § 101, 87 Stat. 577;
see also 30 U. S. C. § 185(b). This carveout meant that par-
ties seeking to build natural-gas pipelines across federally
owned land in the Park System could not rely on the Mineral
Leasing Act. § 101, 87 Stat. 577; 30 U. S. C. § 185(b).
6
Put simply, “any area of land and water administered by”
the Park Service is a unit of the Park System and must be
“regulate[d]” through “means and measures” that “conserve”
and “provide for the enjoyment of the scenery, natural and
historic objects, and wild life” in ways “as will leave them
unimpaired for the enjoyment of future generations.” 54
6
Congress reiterated that the Trail is land in the Park System in 1983.
It amended the Trails Act to provide that the Secretary of the Interior's
“ `administrative responsibilities' ” over the Appalachian Trail would be
“ `carr[ied] out' ” by “ `utiliz[ing] authorities related to units of the national
park system.' ” § 207(h), 97 Stat. 47; see also 16 U. S. C. § 1246(i).
630 UNITED
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Sotomayor, J., dissenting
U. S. C. §§ 100101, 100501. By 1970, the Appalachian Trail
was
no doubt such an area, as Congress knew when it ex-
cluded all federally owned land “in the National Park Sys-
tem” from the Mineral Leasing Act in 1973.
7
Because the
proposed pipeline here would cross that park land, Atlantic
cannot rely on the Mineral Leasing Act to authorize its
proposal.
C
Agency practice confrms this conclusion. For a half cen-
tury the Park Service has acknowledged that the Appala-
chian Trail is a unit of (and land in) the Park System. Recall
that a year after the Trails Act's enactment, the Secretary of
the Interior named the Park Service the “land administering
bureau” for the Appalachian Trail. 34 Fed. Reg. 14337. In
1972, the Park Service identifed the Trail as a “recreational
are[a] ” that it “administered. ” Nati ona l Park Service
(NPS), National Parks & Landmarks 88 (capitalization de-
leted). Similarly, as the administrator of that land, the Park
Service issued regulations for the Trail under the umbrella,
“Areas of the National Park System.” 36 CFR pt. 7 (1983)
(capitalization deleted); see also id., § 7.100; 48 Fed. Reg.
30252 (1983). When it did so, the Park Service explained
that “[t]hese regulations will be utilized to fulfll the statu-
tory purposes of units of the National Park System.” 36
CFR § 1.1; 48 Fed. Reg. 30275. All those terms—land, area,
administer, recreation, unit of the National Park System—
7
See § 2(b), 84 Stat. 826 (General Authorities Act); H. R. Rep. No. 91–
1265, p. 2 (1970) (“The national park system which we know and cherish
today has grown and matured over the years [and] has broadened to in-
clude . . . areas primarily signifcant for their outdoor recreation poten-
tial”); ibid. (explaining that amendments to the Park Service Organic Act
“reference . . . more recent concepts like national recreation areas” as
“units of the national park system”); see also § 101, 87 Stat. 576–577 (Min-
eral Leasing Act); S. Rep. No. 93–207, p. 29 (1973) (explaining that the
Mineral Leasing Act “is not intended to grant rights-of-way through the
National Park System” and citing the recently revised Park Service Or-
ganic Act).
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as: 590 U. S. 604 (2020)
631
Sotomayor, J., dissenting
trace the Organic Act's defnition of land in the Park System.
See
, e. g., 54 U. S. C. §§ 100102(6), 100501.
8
More recently, a 2005 Park Service history stated that the
Appalachian Trail was “brought into the National Park Sys-
tem” by the Trails Act and that, with the Trail's “inclusion
in the System, the [Park Service] became responsible for its
protection and maintenance within federally administered
areas.” NPS, The National Parks: Shaping the System 77.
A 2006 Park Service handbook stated that “[s]everal compo-
nents of the National Trails System which are administered
by the [Park] Service,” including the Appalachian Trail,
“have been designated as units of the national park system”
and “are therefore managed as national park areas.” NPS,
Management Policies 2006, § 9.2.2.7, p. 134. A 2016 Park
Service index similarly listed the Trail as “a unit of the Na-
tional Park System.” NPS, The National Parks: Index
2012–2016, p. 142 (NPS Index).
Still taking cues from statutory text, the Park Service con-
tinues to refer to the Appalachian Trail as land in the Park
System. Just last year, the Park Service issued a reference
manual describing the Appalachian Trail as a “land protec-
tion project” that has “been formally declared [a] uni[t] of
the National Park System.” NPS, National Trails System:
Reference Manual 45, pp. 28, 221 (2019) (NPS, Reference
Manual 45). The Park Service's compendium of regulations
similarly explains that the General Authorities Act “brought
all areas administered by the [Park Service] into one Na-
tional Park System.” NPS, Appalachian Trail Superintend-
ent's Compendium 2 (2019). Even the Park Service's recent
8
The Court acknowledges that “the Government might refer to the
Trail” as “ `area' of land,” but concludes that those references must pertain
only to easements as defned by state law. Ante, at 615 (analogizing to
sewage easements and citing state law). That view strays far from the
federal statutes at issue. The simpler conclusion is that when the Gov-
ernment uses terms that defne land in the Park System, the Government
refers to land in the Park System.
632 UNITED
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Sotomayor, J., dissenting
budget justifcation to Congress identifed the Appalachian
Trai
l as a “Park Base Uni[t],” a “Park Uni[t],” and a national
“par[k].” Dept. of Interior, Budget Justifcations and Per-
formance Information—Fiscal Year 2020: National Park
Service, at Overview–16, ONPS–89, –105 (Budget Justifca-
tions) (capitalization deleted).
The Government has even brought this understanding to
bear against private citizens. For example, the Government
(including the Park Service and the Forest Service) fled a
damages lawsuit against an individual, invoking the Organic
Act and asserting that a segment of the Appalachian Trail
passing through Forest Service lands was a unit of the Na-
tional Park System. See Record in United States v. Reed,
No. 1:05–cv–00010 (WD Va.), Doc. 1, p. 2 (“The United States
. . . has established the Appalachian National Scenic Trail
. . . as [a] uni[t] of the National Park Service”). In that case,
the Government obtained a jury verdict against someone
who had caused a fre on a Trail segment that was, as the
Government alleged, land in the Park System. See ibid.;
see also id., Doc. 31 ( judgment).
Here, at least before they reached this Court, both the
Park Service and Forest Service explained in proceedings
below that the Trail is land in the Park System. The Park
Service noted that the Appalachian Trail is a “protected cor-
ridor (a swath of land averaging about 1,000 feet in width
. . . )” that the Park Service “administers.” App. 97. Thus,
the Park Service detailed, “the entire Trail corridor” is a
“park unit.” Ibid. For its part, the Forest Service ac-
knowledged that the Park Service “is the lead federal admin-
istrator agency for the entire [Appalachian Trail], regardless
of land ownership.” Id., at 126. Again, this statement ech-
oes the Organic Act's defnition of land in the Park System,
see 54 U. S. C. § 100501, further refecting that the Trail is
land in the Park System.
The agencies' common ground does not stop there. The
Park Service's Land Resources Division estimates that the
Cite
as: 590 U. S. 604 (2020)
633
Sotomayor, J., dissenting
Appalachian Trail corridor constitutes nearly 240,000 acres.
NPS,
Land Resources Div., Acreage Reports, Listing of
Acreage, p. 1 (Dec. 31, 2019) (NPS, 2019 Acreage Report).
The Forest Service concurs. See Dept. of Agriculture, Re-
vised Land and Resource Mgmt. Plan–George Washington
Nat. Forest 4–42 (2014) (Forest Service Land Plan). In its
own management plan, the Forest Service explained that
the Secretary of the Interior “administer[s]” in the George
Washington National Forest “about 9,000 acres.” Ibid.
Acres of land, that is.
As federally owned land administered by the Park Service,
the Trail segment that Atlantic aims to cross is exempt from
the Mineral Leasing Act's grant of right-of-way authority.
II
The Court resists this conclusion for three principal rea-
sons. Each tries to detach the Appalachian Trail from land,
but none adheres to the plain text and history described
above.
A
First, the Court posits that the Forest Service granted the
Park Serv ice only an “easement” for the Trai l's route
through the George Washington National Forest. See ante,
at 613–616. Because private-law “easements are not land,”
the Court reasons, nothing “divest[ed] the Forest Service of
jurisdiction over the lands that the Trail crosses.” Ante,
at 613, 616.
That reasoning is self-defeating. Despite recognizing that
the Park Service “administers the Trail,” the Court insists
that this administration excludes “the underlying land” con-
stituting the Trail. Ante, at 617. But the Court does not
disclose how the Park Service could administer the Trail
without administering the land that forms it.
Neither does the Court explain how the Trail could be a
unit of the Park System if it is not land. The Court declares
that the Trail's status as a System “ `unit' ” does not “indi-
634 UNITED
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cat[e] that the Trail and the land are the same.” Ante, at 615.
But
the Court cites no statutory authority for this view.
Nor could it. The Organic Act says the opposite: A “ `Sys-
tem unit' ” is by defnition “land” or “water.” 54 U. S. C.
§§ 100102(6), 100501. Unless the Court means to imply that
the Appalachian Trail is water, the Trail must be land in the
Park System. Indeed, the Court's atextual reading unset-
tles much of the Park System as we know it. Other System
units include the Booker T. Washington National Monument,
George Washington's birthplace, the Harriet Tubman Under-
ground Railroad National Historical Park, the Blue Ridge
Parkway, and the Golden Gate National Recreation Area.
See, e. g., Budget Justifcations, ONPS–89, –92, –109; accord,
NPS Index, at 32, 61, 85, 104, 105. These monuments,
houses, roads, and recreational areas are just as much “land”
in the Park System as is a foot trail worn into the earth.
The Court's analysis of private-law easements is also un-
convincing. In the Court's words, a private-law easement is
“a limited privilege” granted to “a nonowner” of land. Ante,
at 613; see also 613–614 (adding that “the grantor of [an]
easement retains ownership” over the land and that “ease-
ments are not land, they merely burden land that continues
to be owned by another”). But as the Court recognizes,
“the Federal Government owns all lands involved here,”
ante, at 614, so private law is inapposite. Precisely because
the Government owns all the lands at issue, it makes little
sense to ask whether the Government granted itself an ease-
ment over its own land under state-law principles. Between
agencies of the Federal Government, federal statutory com-
mands, not private-law analogies, govern.
In any event, the Trails Act provides that the “rights-of-
way” for the Appalachian Trail “shall include lands protected
for it” where “practicable.” 16 U. S. C. § 1244(a)(1); cf.
§ 1246(d) (listing the “areas . . . included” in a right-of-way);
§ 1246(e) (providing that the Government may “acquire such
lands or interests therein to be utilized as segments of ” a
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trail and that “lands involved in such rights-of-way should be
acquired
in fee”).
9
Thus, even with a so-called “easement”
through a federal forest, the Park Service still administers
land “acquire[d]” and “protected” for the Trail.
10
That is
why the Park Service refers to the Trail as a “swath of land,”
App. 97; why the Forest Service admits that the Park Serv-
ice administers those “acres,” Forest Service Land Plan 4–
42; and why the Secretary of the Interior has authority to
grant rights-of-way “under” the Trail's surface, § 1248(a).
Tellingly, the Court recognizes that § 1248(a) “extends a
positive grant of authority to the agency responsible for the
Trail.” Ante, at 615, n. 3. Indeed. That only scratches the
surface. The Park Service may control what happens under
the Trail consistent with “units of the national park system.”
§ 1246(i). The Park Service also determines which “uses
along the trail” to permit, § 1246(c), and provides for the
Trail's “protection, management, development, and adminis-
tration,” § 1246(i). But under the Court's atextual reading
of the relevant statutes, the agency tasked with protecting
9
The Court maintains that these provisions are also “consistent with”
its private-law paradigm, ante, at 615, but private law does not override
the plain text of the relevant statutes. See Part I–A, supra. The Court
simply works backwards from state law, even though statutory interpreta-
tion is supposed to start with statutory text. See, e. g., Rotkiske v.
Klemm, 589 U. S. 8, 13 (2019). Indeed, the Court offers almost no analysis
on the language of the General Authorities Act or the Park Service Or-
ganic Act.
10
A right-of-way may include not just a right of passage, but also the
land itself. See, e. g., 16 U. S. C. § 521e(3) (providing that certain “rights-
of-way” are “lands”); Black's Law Dictionary 1587 (11th ed. 2019) (“right-
of-way” can refer to “[t]he strip of land”); Black's Law Dictionary 1489
(4th ed. 1968) (similar); see also New Mexico v. United States Trust Co.,
172 U. S. 171, 181–182 (1898) (discussing these two defnitions and explain-
ing that the “intention of the legislature” controls). Although the Court
quotes New Mexico for the proposition that a “ `right of way' ” cannot con-
stitute “ `possession of the land itself,' ” ante, at 616, n. 4, that passage had
to do with a “naked right of way,” i. e., a simple right of passage, 172 U. S.,
at 184 (emphasis added).
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the Trail (and empowered to grant rights-of-way under it)
cou
ld be excluded from determining whether a pipeline bores
across the Trail. The Court's interpretation means that the
Mineral Leasing Act would not even stop Atlantic from
building a pipeline on top of an undisputed unit of the Park
System. Cf. ante, at 623–624, n. 7. That cannot be right.
The Court also appears to assume that the Park Service's
administrative jurisdiction over lands making up the Appala-
chian Trail must be mutually exclusive with the Forest Serv-
ice's jurisdiction. See ante, at 613–616 (focusing on whether
“jurisdiction over the lands” making up the Trail was “trans-
ferred,” “convert[ed],” or “divest[ed]”). But this is not a
zero-sum inquiry. The question is “not whether those por-
tions of the [Appalachian Trail] were removed from the
George Washington National Forest; the question is whether
they were added to the National Park System.” Brief for
Natural Resources Defense Council et al. as Amici Curiae
2. As explained above, the lands making up the Appala-
chian Trail were indeed added to the National Park System.
That the Trail may fall within both the Forest System and
the Park System is not surprising. The Trails Act recog-
nizes that two agencies may have overlapping authority over
the Appalachian Trail. See 16 U. S. C. § 1244(a)(1) (giving
the Secretary of the Interior administrative authority “in
consultation with the Secretary of Agriculture”); § 1246(a)(2)
(“Development and management of each segment of the Na-
tional Trails System shall be designed to harmonize with and
complement any established multiple-use plans for that spe-
cifc area”). So too the Mineral Leasing Act contemplates
that multiple agencies may share authority over federally
owned land implicated in proposed rights-of-way. See 30
U. S. C. § 185(c); see also n. 2, supra. The Court appears to
recognize this point, see ante, at 615, n. 3, but does not follow
it to its logical conclusion: that land may be in both the Park
Service and the Forest Service and thus excluded from the
Mineral Leasing Act's right-of-way authority. The Mineral
Cite
as: 590 U. S. 604 (2020)
637
Sotomayor, J., dissenting
Leasing Act's carveout simply asks whether the federally
owned
land is in the Park System at all. See § 185(b). If it
is, then (as the parties recognize) the Mineral Leasing Act
does not permit pipelines to cross that park land.
The Court also cites a 1983 amendment to the Trails Act
for the proposition that the lands making up the Appalachian
Trail are not administered by the Park Service. See ante,
at 623 (citing 16 U. S. C. § 1246(a)(1)(A)). This provision
states that “[n]othing ” in the Trails Act “shall be deemed to
transfer among Federal agencies any management responsi-
bilities . . . for federally administered lands which are compo-
nents of the National Trails System.” § 1246(a)(1)(A); see
also § 207, 97 Stat. 45–46. It does not aid the Court's analysis.
For one thing, § 1246(a)(1)(A) undercuts the Court's dis-
tinction between a trail and land: The statute equates “com-
ponents of the National Trails System” like the Appalachian
Trail with “lands.” Ibid.; see also § 1241(b) (Appalachian
Trail is a “componen[t]” of the National Trails System). For
another, in relying on this provision, the Court elides two
terms of art: “administering ” land and “managing ” it. See
ante, at 617, 623. “Trail administration is distinguished
from on-the-ground trail management.” NPS, Reference
Manual 45, at 21.
11
Section 1246(a)(1)(A) itself differentiates
the terms because it uses both, but disclaims only the trans-
fer of “management,” not “administration.” When, as here,
“ ` “Congress includes particular language in one section of
a statute but omits it in another,” ' ” this Court “generally
11
The Park Service Reference Manual defines “Administration” as a
term referencing the agency broadly “responsible for Federal funding and
staffng necessary to operate the trail and exercising trailwide authorities
from the [Trails Act] and [the administering agency's] own organic legisla-
tion.” NPS, Reference Manual 45, at 8; see also ibid. (“Trail administra-
tion provides trailwide coordination and consistency”). “Management,”
by contrast, refers to localized matters like “local visitor services,” “law
enforcement,” “site-specifc compliance,” “site interpretation,” “trail main-
tenance” and “marking,” “resource preservation and protection,” and
“viewshed protection.” Id., at 10.
638 UNITED
STATES FOREST SERVICE v. COWPASTURE
RIVER PRESERVATION ASSN.
Sotomayor, J., dissenting
presumes” that “Congress ` “intended a difference in mean-
i
ng. ” ' ” Maine Co mmun i ty Hea l th O p t io n s v. Un i ted
States, 590 U. S. 296, 314 (2020).
This distinction between administration and management
tracks the Park Service Organic Act. The Organic Act de-
fnes the Park System as land “administered” by the Park
Service. 54 U. S. C. § 100501; see also § 100502 (refecting
difference between administration and management). Simi-
larly, the rest of the Trails Act differentiates the two terms
by giving the Secretary of the Interior (and by extension the
Park Service) power to “administe[r]” the lands making up
the Appalachian Trail, § 5(a)(1), 82 Stat. 920, in consultation
with other parties about proper Trail “management,” § 7(i),
id., at 925. Even the Mineral Leasing Act echoes this differ-
ence by equating land “under the jurisdiction of [a] Federal
agency” w ith land “admi nistered” by that agency. 30
U. S. C. §§ 185(c)(1), (2). The Court may be right that the
Park Service “ `provide[s] for' the maintenance of the Trail”
while the Forest Service “performs the necessary physical
work,” ante, at 617, but that only punctuates the contrast
between administration and management. See, e. g., NPS,
Reference Manual 45, at 8, 10, 21. There is no disputing that
the Park Service administers the Appalachian Trail, even if
the Forest Service manages it.
12
At bottom, 16 U. S. C. § 1246(a)(1)(A) does not change the
fact that the Park Service administers the Appalachian Trail
as a unit of the Park System. Nor does it supersede the
Park Service Organic Act's defnition of Park System lands
or the Mineral Leasing Act's exclusion of those lands.
12
Mere months after Congress had enacted § 1246(a)(1)(A) to clarify that
it had not transferred “management responsibilities,” the Park Service
issued a fnal rule for “General Regulations for Areas Administered by the
National Park Service,” reaffrming that the Appalachian Trail was land
in the Park System. See 48 Fed. Reg. 30252. That agency action makes
little sense under the Court's view.
Cite
as: 590 U. S. 604 (2020)
639
Sotomayor, J., dissenting
B
Second,
the Court maintains that Congress should have
used “unequivocal and direct language” had it intended for
the Trail to be land in the Park System. Ante, at 618. The
Court cites the Wild and Scenic Rivers Act (Rivers Act) and
the Blue Ridge Parkway statutes, noting that Congress
“failed to enact similar language in the Trails Act.” Ante,
at 622. But as the Government explained, “[m]agic words
such as `transfer jurisdiction' are unnecessary.” Reply
Brief for Federal Petitioners 9 (citation omitted).
Indeed, neither example lends the Court much support.
Certainly the Rivers Act, 82 Stat. 906, stated that any com-
ponent of the Rivers System would “become a part of ” the
National Park System. § 10(c), id., at 916. But this shows
that Congress has many means to make land a unit of the
Park System. Congress charted another path for the Appa-
lachian Trail by enacting the General Authorities Act, a stat-
ute just as explicit as the Rivers Act. Again, it was after
the Park Service had become the Trail's “land administering
bureau,” 34 Fed. Reg. 14337, that Congress provided that
“ `any area of land . . . now or hereafter administered by the
Secretary of the Interior through the National Park Serv-
ice' ” is land in the Park System, § 2(b), 84 Stat. 826; see also
54 U. S. C. §§ 100102(2), (6), 100501. Resembling the Rivers
Act, the General Authorities Act unambiguously provided
that a component of the Trails System would become land in
the National Park System.
The Blue Ridge Parkway statutes also undermine the
Court's conclusion. The Court cites a 1952 statute and some
more recent laws, see ante, at 618, but the enactments that
originally created the Blue Ridge Parkway did not include
language about “transferring ” land from one agency to an-
other. Rather, they stated that the parkway “shall be ad-
ministered and maintained by the Secretary of the Interior
through the National Park Service” and be “subject to” the
640 UNITED
STATES FOREST SERVICE v. COWPASTURE
RIVER PRESERVATION ASSN.
Sotomayor, J., dissenting
Park Service Organic Act, even though the relevant lands
i
ncluded national forests. See 49 Stat. 2041; ch. 277, 54 Stat.
249–250; NPS, Blue Ridge Parkway: Virginia and North
Carolina Final General Management Plan 12 (2013). The
only salient difference between the original Blue Ridge
Parkway statutes and the Trails Act is that, for the latter,
Congress took an additional step by enacting the General
Authorities Act.
For similar reasons, it is not signifcant that the National
Trails Act allowed the Secretary of the Interior to decide
which agency in the Interior Department would administer
the Appalachian Trail. Cf. ante, at 620–623. That was a
choice for Congress and the Executive Branch, not the Judi-
ciary. See § 5(a), 82 Stat. 920. More important, this desig-
nation had occurred before Congress enacted the General
Authorities Act and amended the Mineral Leasing Act, and
Congress was aware that the Park Service had already been
selected to administer the land. The Court is therefore
incorrect to suggest that Congress altered a regulatory
scheme “through delegation.” Ante, at 621. Congress did
so instead explicitly through legislation and ratifcation.
C
Last, the Court objects on policy grounds that hewing to
the statutes' plain meaning would have “striking implica-
tions for federalism and private property rights.” Ibid.
Not so. For starters, the pertinent provisions under the
Mineral Leasing Act apply only to “lands owned by the
United States.” 30 U. S. C. § 185(b)(1). That statute does
not address a State or private landowner's ability to grant
rights-of-way for pipelines. Congress, moreover, already
addressed the Court's concerns. The Trails Act prescribed
the means by which nonfederal “land necessary for [the
Trail] may be acquired”: by voluntary arrangements or,
if “all voluntary means for acquiring the property fail,”
through “condemnation proceedings.” Preseault v. ICC, 494
Cite
as: 590 U. S. 604 (2020)
641
Sotomayor, J., dissenting
U. S. 1, 5, n. 1 (1990) (citing 16 U. S. C. §§ 1246(e), (g)).
“W
here practicable,” the Trails Act incorporated pre-existing
cooperative agreements. § 1244(a)(1). And as the Park
Service has explained, it took the cooperative path to acquire
private and state land for the Trail. See, e. g., NPS, Refer-
ence Manual 45, at 41 (extolling the Trail's cooperative agree-
ments that became “a laboratory for developing sustainable
partnerships that can care for and protect interstate trails”).
True, that the Appalachian Trail is land in the Park Sys-
tem means the Park Service has some power to regulate non-
federal property. But that authority is not new. For dec-
ades the Park Service has regulated waste disposal on “all
lands and waters within the boundaries of all units of the
National Park System, whether federally or nonfederally
owned.” 36 CFR § 6.2 (1995). It also has power to regulate
the entire Appalachian Trail, including lands that the Gov-
ernment does not own. 16 U. S. C. § 1246(c) (requiring pri-
vate landowners to act “in accordance with regulations” gov-
erning “the use of motorized vehicles” on the Trail).
13
13
The Court predicts that “diffculties” would arise if the Trail were land
in the Park System, asserting that the Park Service's “ `administrative' ”
authority could allow the Government to “displace” state laws providing
for Trail maintenance. Ante, at 621–622, n. 6. The Court's concerns do
not follow. Even with the Supremacy Clause, U. S. Const., Art. VI, cl. 2,
federal and state laws can (and do) coexist in this context and myriad
others. See, e. g., NPS, Reference Manual 45, at 8 (Park Service's “Trail
administration provides trailwide coordination and consistency” among
“government agencies, landowners, interest groups, and individuals”).
The Court's core objection seems to be that the Park Service could “gain
power over numerous tracts of privately owned and state-owned land.”
Ante, at 621, n. 6. But it already did. See 16 U. S. C. § 1246(c); 54 U. S. C.
§ 100751(a); Pub. L. 91–383, §§ 1, 2(b), 84 Stat. 825–826; 36 CFR § 7.100; 67
Fed. Reg. 8479 (2002); 48 Fed. Reg. 30252; see also Sturgeon v. Frost,
587 U. S. 28, 38 (2019). Despite that fact, none of the Court's supposed
“diffculties” has arisen. Compare ante, at 621–622, n. 6, with, e. g., NPS,
Reference Manual 45, at 41 (explaining complementary “Federal, State,
and nonproft roles” in the Trail's successful “management”). Rather, as
the Court points out, the Park Service has not fully exercised its authority,
642 UNITED
STATES FOREST SERVICE v. COWPASTURE
RIVER PRESERVATION ASSN.
Sotomayor, J., dissenting
Nor is the Park Service's authority over Trail lands re-
markable
. Uniform regulatory power is a feature of a uni-
fed National Park System. After all, Congress designed
the Park System to “expres[s] a single national heritage” and
to “conserve” the country's “scenery, natural and historic ob-
jects, and wild life” for “the common beneft of all the people
of the United States.” 54 U. S. C. §§ 100101(a), (b). Thus,
“the Secretary [of the Interior], acting through the Director
of the Park Service, has broad authority under the National
Park Service Organic Act . . . to administer both lands and
waters within all system units in the country.” Sturgeon v.
Frost, 587 U. S. 28, 38 (2019); see also § 100751(a) (Secretary
of the Interior “shall prescribe such regulations as [he or
she] considers necessary or proper for the use and manage-
ment of System units”). Because “[t]hose statutory grants
of power make no distinctions based on the ownership of
either lands or waters,” 587 U. S., at 38, “park boundaries
can encompass both federally and nonfederally owned lands
and waters,” all “subject to [Park] Service regulations,” id.,
at 61 (Sotomayor, J., concurring).
14
applying fewer regulations on private lands than on federal lands out of
respect for private interests. 67 Fed. Reg. 8480. That the Park Service
chooses not to regulate, however, does not mean it is powerless to do so.
In any case, the Court's policy objections do not bear on the statutory
question here. And the Court's citations only confrm that the Trail is
among the Park Service's “administered lands.” Id., at 8479. As those
sources show, the Park Service's “general” regulations for lands “adminis-
tered by the National Park Service” apply to Trail segments under the
agency's “primary land management responsibility.” 48 Fed. Reg. 30252–
30253; see also id., at 30253 (noting that because the Park Service “cannot
abrogate [its] responsibility by excluding areas of the National Park Sys-
tem from coverage,” it may also impose “special” regulations applicable to
private lands). Those authorities thus reveal that administration differs
from management, and that either way the Trail segment at issue is land
in the Park System.
14
If any Park Service regulations impair state or private-property
rights, the Takings Clause and the Trails Act provide for compensation in
appropriate cases. See U. S. Const., Amdt. 5; 16 U. S. C. §§ 1246(e), (g).
Cite
as: 590 U. S. 604 (2020)
643
Sotomayor, J., dissenting
Despite all this, the Court insists that Congress use “ex-
ceedi
ngly clear language” when it wishes “to signifcantly
alter the balance between federal and state power and the
power of the Government over private property.” Ante, at
622. But Congress did. It used language so clear, in fact,
that every year the Park Service provides an acreage report
listing state and private land as part of the Appalachian Trail
system unit. Last year, the Park Service's report listed that
the Trail system unit comprises 58,110.94 acres of “Non-
Federal” land, including 8,815.98 acres of “Private” land.
See NPS, 2019 Acreage Report.
***
Today's outcome is inconsistent with the language of three
statutes, longstanding agency practice, and common sense.
The Park Service administers acres of land constituting the
Appalachian Trail for scenic, historic, cultural, and recre-
ational purposes. §§ 3(b), 5(a)(1), 82 Stat. 919–920; 34 Fed.
Reg. 14337. “[A]ny area of land” so “administered” by the
Park Service is a unit of and thus land in the National Park
System. 54 U. S. C. §§ 100102(6), 100501. The Mineral
Leasing Act does not permit natural-gas pipelines across
such federally owned lands. 30 U. S. C. § 185(b). Only Con-
gress, not this Court, should change that mandate.
I respectfully dissent.
644 OCTOBER
TERM, 2019
Syllabus
BOSTOCK v. CLAYTON COUNTY, GEORGIA
certiorari
to the united states court of appeals for
the eleventh circuit
No. 17–1618. Argued October 8, 2019—Decided June 15, 2020*
In each of these cases, an employer allegedly fred a long-time employee
simply for being homosexual or transgender. Clayton County, Georgia,
fred Gerald Bostock for conduct “unbecoming ” a county employee
shortly after he began participating in a gay recreational softball league.
Altitude Express fred Donald Zarda days after he mentioned being gay.
And R. G. & G. R. Harris Funeral Homes fred Aimee Stephens, who
presented as a male when she was hired, after she informed her em-
ployer that she planned to “live and work full-time as a woman.” Each
employee sued, alleging sex discrimination under Title VII of the Civil
Rights Act of 1964. The Eleventh Circuit held that Title VII does not
prohibit employers from fring employees for being gay and so Mr. Bos-
tock's suit could be dismissed as a matter of law. The Second and Sixth
Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens,
respectively, to proceed.
Held: An employer who fres an individual merely for being gay or trans-
gender violates Title VII. Pp. 654–683.
(a) Title VII makes it “unlawful . . . for an employer to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate
against any individual . . . because of such indiv idua l's race, color,
religion, sex, or national origin.” 42 U. S. C. § 2000e–2(a)(1). The
straightforward application of Title VII's terms interpreted in accord
with their ordinary public meaning at the time of their enactment re-
solves these cases. Pp. 654–662.
(1) The parties concede that the term “sex” in 1964 referred to the
biological distinctions between male and female. And “the ordinary
meaning of `because of ' is `by reason of ' or `on account of,' ” University
of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350.
That term incorporates the but-for causation standard, id., at 346, 360,
*Together with No. 17–1623, Altitude Express, Inc., et al. v. Zarda
et al., as Co-Independent Executors of the Estate of Zarda, on certiorari
to the United States Court of Appeals for the Second Circuit, and No. 18–
107, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment
Opportunity Commission et al., on certiorari to the United States Court
of Appeals for the Sixth Circuit.
Cite
as: 590 U. S. 644 (2020)
645
Syllabus
which, for Title VII, means that a defendant cannot avoid liability just
by
citing some other factor that contributed to its challenged employ-
ment action. The term “discriminate” meant “[t]o make a difference in
treatment or favor (of one as compared with others).” Webster's New
International Dictionary 745. In so-called “disparate treatment” cases,
this Court has held that the difference in treatment based on sex must
be intentional. See, e. g., Watson v. Fort Worth Bank & Trust, 487 U. S.
977, 986. And the statute's repeated use of the term “individual” means
that the focus is on “[a] particular being as distinguished from a class.”
Webster's New International Dictionary, at 1267. Pp. 655–659.
(2) These terms generate the following rule: An employer violates
Title VII when it intentionally fres an individual employee based in
part on sex. It makes no difference if other factors besides the plain-
tiff 's sex contributed to the decision or that the employer treated women
as a group the same when compared to men as a group. A statutory
violation occurs if an employer intentionally relies in part on an individ-
ual employee's sex when deciding to discharge the employee. Because
discrimination on the basis of homosexuality or transgender status re-
quires an employer to intentionally treat individual employees differ-
ently because of their sex, an employer who intentionally penalizes an
employee for being homosexual or transgender also violates Title VII.
There is no escaping the role intent plays: Just as sex is necessarily
a but-for cause when an employer discriminates against homosexual
or transgender employees, an employer who discriminates on these
grounds i nescapably i ntends to rely on sex in its decisionmak ing.
Pp. 659–662.
(b) Three leading precedents confrm what the statute's plain terms
suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a com-
pany was held to have violated Title VII by refusing to hire women with
young children, despite the fact that the discrimination also depended
on being a parent of young children and the fact that the company fa-
vored hiring women over men. In Los Angeles Dept. of Water and
Power v. Manhart, 435 U. S. 702, an employer's policy of requiring
women to make larger pension fund contributions than men because
women tend to live longer was held to violate Title VII, notwithstanding
the policy's evenhandedness between men and women as groups. And
in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male
plaintiff alleged a triable Title VII claim for sexual harassment by co-
workers who were members of the same sex.
The lessons these cases hold are instructive here. First, it is irrele-
vant what an employer might call its discriminatory practice, how others
might label it, or what else might motivate it. In Manhart, the em-
ployer might have called its rule a “life expectancy” adjustment, and in
646 BOSTOCK
v. CLAYTON COUNTY
Syllabus
Phillips, the employer could have accurately spoken of its policy as one
based
on “motherhood.” But such labels and additional intentions or
motivations did not make a difference there, and they cannot make a
difference here. When an employer fres an employee for being homo-
sexual or transgender, it necessarily intentionally discriminates against
that individual in part because of sex. Second, the plaintiff 's sex need
not be the sole or primary cause of the employer's adverse action. In
Phillips, Manhart, and Oncale, the employer easily could have pointed
to some other, nonprotected trait and insisted it was the more important
factor in the adverse employment outcome. Here, too, it is of no sig-
nifcance if another factor, such as the plaintiff 's attraction to the same
sex or presentation as a different sex from the one assigned at birth,
might also be at work, or even play a more important role in the employ-
er's decision. Finally, an employer cannot escape liability by demon-
strating that it treats males and females comparably as groups. Man
har t is i nstr uc tive here. An employer who intentiona lly fires an
individual homosexual or transgender employee in part because of that
individual's sex violates the law even if the employer is willing to sub-
ject all male and female homosexual or transgender employees to the
same rule. Pp. 662–665.
(c) The employers do not dispute that they fred their employees for
being homosexual or transgender. Rather, they contend that even in-
tentional discrimination against employees based on their homosexual
or transgender status is not a basis for Title VII liability. But their
statutory text arguments have already been rejected by this Court's
precedents. And none of their other contentions about what they think
the law was meant to do, or should do, allow for ignoring the law as it
is. Pp. 665–682.
(1) The employers assert that it should make a difference that
plaintiffs would likely respond in conversation that they were fred for
being gay or transgender and not because of sex. But conversational
conventions do not control Title VII's legal analysis, which asks simply
whether sex is a but-for cause. Nor is it a defense to insist that inten-
tional discrimination based on homosexuality or transgender status is
not intentional discrimination based on sex. An employer who discrim-
inates against homosexual or transgender employees necessarily and
intentionally applies sex-based rules. Nor does it make a difference
that an employer could refuse to hire a gay or transgender individual
without learning that person's sex. By intentionally setting out a rule
that makes hiring turn on sex, the employer violates the law, whatever
he might know or not know about individual applicants. The employers
also stress that homosexuality and transgender status are distinct con-
cepts from sex, and that if Congress wanted to address these matters
in Title VII, it would have referenced them specifcally. But when Con-
Cite
as: 590 U. S. 644 (2020)
647
Syllabus
gress chooses not to include any exceptions to a broad rule, this Court
appl
ies the broad rule. Finally, the employers suggest that because the
policies at issue have the same adverse consequences for men and
women, a stricter causation test should apply. That argument unavoid-
ably comes down to a suggestion that sex must be the sole or primary
cause of an adverse employment action under Title VII, a suggestion at
odds with the statute. Pp. 666–673.
(2) The employers contend that few in 1964 would have expected
Title VII to apply to discrimination against homosexual and transgender
persons. But legislative history has no bearing here, where no ambigu-
ity exists about how Title VII's terms apply to the facts. See Milner
v. Department of Navy, 562 U. S. 562, 574. While it is possible that a
statutory term that means one thing today or in one context might have
meant something else at the time of its adoption or might mean some-
thing different in another context, the employers do not seek to use
historical sources to illustrate that the meaning of any of Title VII's
language has changed since 1964 or that the statute's terms ordinarily
carried some missed message. Instead, they seem to say when a new
application is both unexpected and important, even if it is clearly com-
manded by existing law, the Court should merely point out the question,
refer the subject back to Congress, and decline to enforce the law's plain
terms in the meantime. This Court has long rejected that sort of rea-
soning. And the employers' new framing may only add new problems
and leave the Court with more than a little law to overturn. Finally,
the employers turn to naked policy appeals, suggesting that the Court
proceed without the law's guidance to do what it thinks best. That is
an invitation that no court should ever take up. Pp. 673–682.
No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883
F. 3d 100, and No. 18–107, 884 F. 3d 560, affrmed.
Gorsuch, J., delivered the opinion of the Court, in which Roberts,
C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined.
Alito, J., fled a dissenting opinion, in which Thomas, J., joined, post,
p. 683. Kavanaugh, J., fled a dissenting opinion, post, p. 780.
Pamela S. Karlan argued the cause for petitioner in
No. 17–1618 and respondents in No. 17–1623. With her on
the briefs in No. 17–1623 were Gregory Antollino, Stephen
Bergstein, Jeffrey L. Fisher, Brian H. Fletcher, Ria Tabacco
Mar, James D. Esseks, David D. Cole, and Christopher
Dunn. On the briefs in No. 17–1618 were Brian J. Suther-
land and Thomas J. Mew IV.
648 BOSTOCK
v. CLAYTON COUNTY
Counsel
Jeffrey M. Harris argued the cause for respondent in
N
o. 17–1618 and petitioners in No. 17–1623. On the brief in
No. 17–1618 were Jack R. Hancock, William H. Buechner,
Jr., and Michael M. Hill. On the brief in No. 17–1623 was
Saul D. Zabell.
Solicitor General Francisco argued the cause for the
United States as amicus curiae urging affrmance in No. 17–
1618 and reversal in No. 17–1623. With him on the brief
were Assistant Attorneys General Hunt and Dreiband,
Deputy Solicitor General Wall, Deputy Assistant Attorney
General Mooppan, Sopan Joshi, Eric Treene, Charles W.
Scarborough, and Stephanie R. Marcus.
Mr. Co le arg ued the cause for respondent-intervenor
Aimee Stephens in No. 18–107. With him on the briefs were
John A. Knight, Elizabeth O. Gill, Gabriel Arkles, Chase B.
Strangio, Ms. Tabacco Mar, Mr. Esseks, Louise Melling, Jay
D. Kaplan, and Daniel S. Korobkin.
John J. Bursch argued the cause for petitioner in No. 18–
107. With him on the brief were Kristen K. Waggoner,
David A. Cortman, James A. Campbell, Katherine L. An-
derson, Jeana J. Hallock, and Joel J. Kirkpatrick.
Solicitor General Francisco argued the cause for the fed-
eral respondent in No. 18–107. With him on the brief were
Assistant Attorneys General Hunt and Dreiband, Deputy
Solicitor General Wall, Deputy Assistant Attorney General
Mooppan, Johnathan C. Bond, Messrs. Treene and Scarbor-
ough, and Ms. Marcus.†
†Briefs of amici curiae urging reversal in No. 17–1618 and affrmance
in Nos. 17–1623 and 18–107 were fled for the State of Illinois et al. by
Kwame Raoul, Attorney General of Illinois, Jane Elinor Notz, Solicitor
General, and Sarah A. Hunger, Kaitlyn N. Chenevert, and Jonathan J.
Sheffeld, Assistant Attorneys General, and Letitia James, Attorney Gen-
eral of New York, Barbara D. Underwood, Solicitor General, Anisha S.
Dasgupta, Deputy Solicitor General, and Andrew W. Amend, Senior As-
sistant Attorney General, and by the Attorneys General for their respec-
tive jurisdictions as follows: Xavier Becerra of California, Phil Weiser of
Colorado, William Tong of Connecticut, Kathy Jennings of Delaware,
Karl A. Racine of the District of Columbia, Clare E. Connors of Hawaii,
Cite
as: 590 U. S. 644 (2020)
649
Opinion of the Court
Justice Gorsuch delivered the opinion of the Court.
Someti
mes small gestures can have unexpected conse-
quences. Major initiatives practically guarantee them. In
our time, few pieces of federal legislation rank in signifcance
Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Maura Healey of
Massachusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota,
Aaron D. Ford of Nevada, Gurbir S. Grewal of New Jersey, Hector H.
Balderas of New Mexico, Ellen F. Rosenblum of Oregon, Josh Shapiro of
Pennsylvania, Peter F. Neronha of Rhode Island, Thomas J. Donovan,
Jr., of Vermont, Mark R. Herring of Virginia, and Robert Ferguson of
Washington; for Altria Group, Inc., by Lauren R. Goldman, Scott A.
Chesin, Murray R. Garnick, Andrew J. Pincus, and Nicole A. Saharsky;
for the American Bar Association by Robert M. Carlson and Douglas
Hallward-Driemeier; for the American Federation of Labor and Congress
of Industrial Organizations by Harold C. Becker and Matthew J. Ginsburg;
for the American Medical Association et al. by Scott B. Wilkens; for the
American Psychological Association et al. by Jessica Ring Amunson,
Emily L. Chapuis, Aaron M. Panner, Deanne M. Ottaviano, and Nathalie
F. P. Gil foyle; for Anti-discrimination Scholars by Mitchell P. Reich,
Thomas P. Schmidt, and Brian Soucek, pro se; for Business Organizations
by Lisa S. Blatt; for Employment Discrimination Law Scholars by Sasha
Samberg-Champion, Joseph J. Wardenski, and Sachin S. Pandya and
Marcia L. McCormick, both pro se; for Former Executive Branch Offcials
and Leaders et al. by Evan Wol fson; for Georgia Equality by Emmet J.
Bondurant; for GLBTQ Legal Advocates & Defenders et al. by Alan E.
Schoen feld, Mary Bonauto, Christopher Stoll, Julie Wilensky, and Shan-
non Minter; for Historians by Chanakya A. Sethi and Rakesh N. Kilaru;
for Impact Fund et al. by Lindsay Nako and David Nahmias; for inter-
ACT: Advocates for Intersex Youth et al. by Jonah M. Knobler; for
Lambda Legal Defense and Education Fund, Inc., by Karen L. Loewy,
Omar Gonzalez-Pagan, Sharon M. McGowan, and Gregory R. Nevins; for
the Lawyers' Committee for Civil Rights Under Law et al. by Daniel A.
Rubens, Kristen Clarke, Jon Greenbaum, Dariely Rodriguez, Phylicia H.
Hill, Vanita Gupta, and Michael Zubrensky; for the Legal Aid Society by
Brian T. Burgess, Richard Blum, and Frederick H. Rein; for Lesbian,
Gay, Bisexual, Transgender, and Queer Members of the Legal Profession
et al. by Margaret Costello; for Local Governments et al. by Zachary W.
Carter, Richard Dearing, Devin Slack, Michael N. Feuer, James P. Clark,
Kathleen Kenealy, Blithe Smith Bock, Michael Walsh, Danielle L. Gol-
dstein, Dennis J. Herrera, Jeremy M. Goldman, Jaime M. Huling Delaye,
James R. Williams, Greta S. Hansen, Jeremy A. Avila, George McAn-
drews, William S. Kelly, G. Nicholas Herman, Mark A. Flessner, Christo-
650 BOSTOCK
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with the Civil Rights Act of 1964. There, in Title VII, Con-
gress
outlawed discrimination in the workplace on the basis
of race, color, religion, sex, or national origin. Today, we
pher J. Caso, Kristin M. Bronson, Lawrence Garcia, Louis N. Rainone,
Dave Williamson, F. Joseph Abood, Mary C. Wickham, Roger J. Desid-
erio, Susan L. Segal, Kathleen E. Gill, Mark Barber, Lyndsey M. Olson,
Peter S. Holmes, Michael Jenkins, John M. Barr, Betsy Cavendish, Ed-
ward M. Pikula, Jordan B. Yeager, and William Fosbre; for Members of
Congress by Peter T. Barbur; for the Modern Military Association of
America et al. by James Moore III, Jonathan L. Marcus, John M. Nannes,
and Peter Perkowski; for the Muslim Bar Association of New York et al.
by Adeel A. Mangi and Mr. Knobler; for the National Education Associa-
tion et al. by Jeffrey A. Lamken, Alice O'Brien, Eric A. Harrington,
David Strom, Francisco M. Negrón, Jr., and Sonja Trainor; for the Na-
tional LGBT Bar Association et al. by San ford Jay Rosen and Michael S.
Nunez; for the National Women's Law Center et al. by Erica C. Lai,
Danielle C. Morello, Fatima Goss Graves, Emily Martin, and Sunu
P. Chandy; for Philosophy Professors by Lisa Hogan and Esteban M.
Morin; for the Presiding Bishop and President of the House of Deputies
of the Episcopal Church et al. by Jeffrey S. Trachtman; for Service Em-
ployees International Union et al. by James M. Finberg, Barbara J. Chis-
holm, Nicole G. Berner, and Claire Prestel; for the Southern Poverty Law
Center et al. by Melissa Arbus Sherry; for Statutory Interpretation and
Equality Law Scholars by Elizabeth B. Wydra, Brianne J. Gorod, Ashwin
Phatak, and Katie Eyer, pro se; for the Trevor Project et al. by Richard
W. Smith and Douglas C. Dreier; for Wisconsin Advocacy Organizations
by Jeffrey A. McIntyre; for the Women's and Children's Advocacy Project
et al. by Wendy J. Murphy; for Walter Dellinger et al. by Joshua Matz
and Laurence H. Tribe; for William N. Eskridge, Jr., et al. by Mr. Esk-
ridge, pro se; for Kenneth B. Mehlman et al. by Roy T. Englert, Jr., and
Laurie R. Rubenstein; for Brian Slocum et al. by Andrew Rhys Davies;
and for 206 Businesses by Todd Anten, Kathleen M. Sullivan, Cynthia H.
Hyndman, Robert S. Cohen, and Justin T. Reinheimer.
Jeffrey T. Green and Patrick C. Bryant fled a brief of amici curiae
urging reversal in No. 17–1618 and affrmance in No. 17–1623 for Scholars
Who Study the LGB Population.
Briefs of amici curiae urging reversal in Nos. 17–1623 and 18–107 were
fled for Ryan T. Anderson by Charles S. LiMandri, Paul M. Jonna, and
Jeffrey M. Trissell; and for W. Burlette Carter by Ms. Carter, pro se.
Briefs of amici curiae urging reversal in No. 18–107 were fled for the
Center for Arizona Policy by Aaron T. Martin and Cathi Herrod; for the
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Opinion of the Court
must decide whether an employer can fre someone simply
for
being homosexual or transgender. The answer is clear.
An employer who fres an individual for being homosexual
Center for Religious Expression by Nathan W. Kellum; for the Christian
Employers Alliance by Parker Douglas; for Family Policy Groups by
Jonathan R. Whitehead; for the Foundation for Moral Law by Matthew
J. Clark and John A. Eidsmoe; for Free Speech Advocates by Thomas
P. Monaghan and Walter M. Weber; for the Great Lakes Justice Center
by William Wagner, Erin Elizabeth Mersino, and Katherine L. Henry;
for the Independent Women's Forum et al. by Anita Y. Milanovich; for
Judicial Watch, Inc., by Robert D. Popper; for Military Spouses United by
Arthur A. Schulcz, Sr.; for National Medical and Policy Groups That Study
Sex and Gender Identity by Antony B. Kolenc; for Public Advocate of the
United States et al. by William J. Olson, Herbert W. Titus, Jeremiah L.
Morgan, Robert J. Olson, Joseph W. Miller, Gary G. Kreep, and J. Mark
Brewer; for Scholars of Family and Sexuality by Dean R. Broyles; for
Scholars of Philosophy et al. by David R. Langdon; for the United States
Conference of Catholic Bishops et al. by Anthony R. Picarello, Jr., Jeffrey
Hunter Moon, Michael F. Moses, and Hillary E. Byrnes; for Women's
Liberation Front by David Bookbinder; for William J. Bennett by Charles
J. Cooper, David H. Thompson, and John D. Ohlendorf; and for Walt
Heyer et al. by Gregory H. Teufel.
Briefs of amici curiae urging affrmance in No. 17–1618 and reversal in
Nos. 17–1623 and 18–107 were fled for the State of Tennessee et al. by
He rbe r t H. Sl a te r y III, Attor ney Genera l of Tennessee, Andrée S.
Blumstein, Solicitor General, and Sarah K. Campbell, Associate Solicitor
General, Douglas J. Peterson, Attorney General of Nebraska, and David
Bydalek, Chief Deputy Attorney General, and Ken Paxton, Attorney Gen-
eral of Texas, Kyle D. Hawkins, Solicitor General, and M. Stephen Pitt,
and by the Attorneys General for their respective States as follows: Steve
Marshall of Alabama, Kevin G. Clarkson of Alaska, Leslie Rutledge of
Arkansas, Lawrence G. Wasden of Idaho, Jeff Landry of Louisiana, Eric
S. Schmitt of Missouri, Dave Yost of Ohio, Mike Hunter of Oklahoma,
Alan Wilson of South Carolina, Jason R. Ravnsborg of South Dakota, and
Patrick Morrisey of West Virginia; for Advocates for Faith and Freedom
by C. Thomas Ludden; for the American Public Philosophy Institute by
David R. Upham; for the Billy Graham Evangelistic Association et al. by
Frederick W. Claybrook, Jr., Steven W. Fitschen, James A. Davids, and
David A. Bruce; for Business Organizations by Sean P. Gates; for the
Council of Christian Colleges & Universities et al. by R. Shawn Gunnar-
son, Steven M. Sandberg, and Heather E. Gunnarson; for Defend My Pri-
652 BOSTOCK
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Opinion of the Court
or transgender fres that person for traits or actions it would
not
have questioned in members of a different sex. Sex
plays a necessary and undisguisable role in the decision, ex-
actly what Title VII forbids.
vacy et al. by Joel A. Ready; for the First Liberty Institute by Kelly J.
Shackel ford, Hiram S. Sasser III, and Stephanie N. Taub; for the H. T.
Hackney Co. by Edward H. Trent; for the Institute for Faith and Family
et al. by Deborah J. Dewart and B. Tyler Brooks; for the National Associa-
tion of Evangelicals et al. by Alexander Dushku and Luke W. Goodrich;
for the National Organization for Marriage et al. by John C. Eastman and
Anthony T. Caso; for the Religious Freedom Institute's Islam & Religious
Freedom Action Team et al. by Michael K. Whitehead; and for David A.
Robinson by Mr. Robinson, pro se.
William C. Duncan fled a brief of amici curiae urging affrmance
i n No. 17–1618 and reversa l i n No. 17–1623 for the Marr iage Law
Foundation.
Briefs of amici curiae urging affrmance in No. 18–107 were fled for
Anti-Sexual Assault Organizations et al. by Walter Dellinger; for Law &
History Professors by Craig J. Konnoth, Kevin Costello, Jack Harrison,
and Kyle Velte, all pro se, and Andrew H. DeVoogd, Susan M. Finegan,
and Donald C. Davis; for Scholars Who Study the Transgender Population
by David R. Carpenter; for the Transgender Law Center et al. by Julia
R. Lissner, Megan M. Kokontis, Melissa L. Cizmorris, Andrea Chinyere
Ezie, Lynly Egyes, and Dale Melchert; for the Transgender Legal De-
fense & Education Fund et al. by Howard S. Zelbo and Carmine D.
Boccuzzi, Jr.; for Women Business Owners et al. by Thomas Brejcha
and Joan M. Mannix; and for Samuel R. Bagenstos et al. byDaniel
Woofter, Kevin K. Russell, Eric F. Citron, Erica Oleszczuk Evans, Mar-
tin S. Lederman, Mr. Bagenstos, Leah M. Litman, Margo Schlanger, and
Michael C. Dorf, all pro se.
Briefs of amici curiae were fled in all cases for Liberty Counsel
by Mathew D. Staver, Anita L. Staver, Horatio G. Mihet, Roger K. Gan-
nam, and Rena M. Lindevaldsen; for Members of Congress by Timothy
J. Newton and Kenneth W. Starr; for the New Civil Liberties Alliance by
Jonathan F. Mitchell and Aditya Dynar; and for Women CEOs et al. by
Suzanne B. Goldberg, Richard M. Segal, and Cynthia Cook Robertson.
Briefs of amici curiae in Nos. 17–1618 and 17–1623 were fled for the
Foundation for Moral Law by Mr. Eidsmoe; and for Karl Olson by Janine
M. Brookner.
Randall L. Wenger, Jeremy L. Samek, and Curtis M. Schube fled a
brief of amicus curiae for Paul R. McHugh in No. 18–107.
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Those who adopted the Civil Rights Act might not have
anticipated
their work would lead to this particular result.
Likely, they weren't thinking about many of the Act's conse-
quences that have become apparent over the years, including
its prohibition against discrimination on the basis of mother-
hood or its ban on the sexual harassment of male employees.
But the limits of the drafters' imagination supply no reason
to ignore the law's demands. When the express terms of a
statute give us one answer and extratextual considerations
suggest another, it's no contest. Only the written word is
the law, and all persons are entitled to its beneft.
I
Few facts are needed to appreciate the legal question we
face. Each of the three cases before us started the same
way: An employer fred a long-time employee shortly after
the employee revealed that he or she is homosexual or trans-
gender—and allegedly for no reason other than the employ-
ee's homosexuality or transgender status.
Gerald Bostock worked for Clayton County, Georgia, as a
child welfare advocate. Under his leadership, the county
won national awards for its work. After a decade with the
county, Mr. Bostock began participating in a gay recreational
softball league. Not long after that, infuential members of
the community allegedly made disparaging comments about
Mr. Bostock's sexual orientation and participation in the
league. Soon, he was fred for conduct “unbecoming ” a
county employee.
Donald Zarda worked as a skydiving instructor at Altitude
Express in New York. After several seasons with the com-
pany, Mr. Zarda mentioned that he was gay and, days later,
was fred.
Aimee Stephens worked at R. G. & G. R. Harris Funeral
Homes in Garden City, Michigan. When she got the job,
Ms. Stephens presented as a male. But two years into her
service with the company, she began treatment for despair
654 BOSTOCK
v. CLAYTON COUNTY
Opinion of the Court
and loneliness. Ultimately, clinicians diagnosed her with
gender
dysphoria and recommended that she begin living as
a woman. In her sixth year with the company, Ms. Stephens
wrote a letter to her employer explaining that she planned
to “live and work full-time as a woman” after she returned
from an upcoming vacation. The funeral home fred her be-
fore she left, telling her “this is not going to work out.”
While these cases began the same way, they ended differ-
ently. Each employee brought suit under Title VII alleging
unlawful discrimination on the basis of sex. 78 Stat. 255, 42
U. S. C. § 2000e–2(a)(1). In Mr. Bostock's case, the Eleventh
Circuit held that the law does not prohibit employers from
fring employees for being gay and so his suit could be dis-
missed as a matter of law. 723 Fed. Appx. 964 (2018) (per
curiam). Meanwhile, in Mr. Zarda's case, the Second Cir-
cuit concluded that sexual orientation discrimination does vi-
olate Title VII and allowed his case to proceed. 883 F. 3d
100 (2018). Ms. Stephens's case has a more complex proce-
dural history, but in the end the Sixth Circuit reached a deci-
sion along the same lines as the Second Circuit's, holding
that Title VII bars employers from fring employees because
of their transgender status. 884 F. 3d 560 (2018). During
the course of the proceedings in these long-running disputes,
both Mr. Zarda and Ms. Stephens have passed away. But
their estates continue to press their causes for the beneft of
their heirs. And we granted certiorari in these matters to
resolve at last the disagreement among the courts of appeals
over the scope of Title VII's protections for homosexual and
transgender persons. 587 U. S. 960 (2019).
II
This Court normally interprets a statute in accord with
the ordinary public meaning of its terms at the time of its
enactment. After all, only the words on the page constitute
the law adopted by Congress and approved by the President.
If judges could add to, remodel, update, or detract from old
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655
Opinion of the Court
statutory terms inspired only by extratextual sources and
our
own imaginations, we would risk amending statutes out-
side the legislative process reserved for the people's repre-
sentatives. And we would deny the people the right to con-
tinue relying on the original meaning of the law they have
counted on to settle their rights and obligations. See New
Prime Inc. v. Oliveira, 586 U. S. 105, 113 (2019).
With this in mind, our task is clear. We must determine
the ordinary public meaning of Title VII's command that it
is “unlawful . . . for an employer . . . to fail or refuse to hire
or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national ori-
gin.” § 2000e–2(a)(1). To do so, we orient ourselves to the
time of the statute's adoption, here 1964, and begin by exam-
ining the key statutory terms in turn before assessing their
impact on the cases at hand and then confrming our work
against this Court's precedents.
A
The only statutorily protected characteristic at issue in to-
day's cases is “sex”—and that is also the primary term in
Title VII whose meaning the parties dispute. Appealing to
roughly contemporaneous dictionaries, the employers say
that, as used here, the term “sex” in 1964 referred to “status
as either male or female [as] determined by reproductive bi-
ology.” The employees counter by submitting that, even in
1964, the term bore a broader scope, capturing more than
anatomy and reaching at least some norms concerning gen-
der identity and sexual orientation. But because nothing in
our approach to these cases turns on the outcome of the par-
ties' debate, and because the employees concede the point for
argument's sake, we proceed on the assumption that “sex”
signifed what the employers suggest, referring only to bio-
logical distinctions between male and female.
656 BOSTOCK
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Opinion of the Court
Still, that's just a starting point. The question isn't just
what
“sex” meant, but what Title VII says about it. Most
notably, the statute prohibits employers from taking certain
actions “because of ” sex. And, as this Court has previously
explained, “the ordinary meaning of `because of ' is `by rea-
son of ' or `on account of.' ” University of Tex. Southwestern
Medical Center v. Nassar, 570 U. S. 338, 350 (2013) (citing
Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176
(2009); quotation altered). In the language of law, this
means that Title VII's “because of ” test incorporates the
“ `simple' ” and “traditional” standard of but-for causation.
Nassar, 570 U. S., at 346, 360. That form of causation is es-
tablished whenever a particular outcome would not have
happened “but for” the purported cause. See Gross, 557
U. S., at 176. In other words, a but-for test directs us to
change one thing at a time and see if the outcome changes.
If it does, we have found a but-for cause.
This can be a sweeping standard. Often, events have
multiple but-for causes. So, for example, if a car accident
occurred both because the defendant ran a red light and be-
cause the plaintiff failed to signal his turn at the intersection,
we might call each a but-for cause of the collision. Cf. Bur-
rage v. United States, 571 U. S. 204, 211–212 (2014). When
it comes to Title VII, the adoption of the traditional but-for
causation standard means a defendant cannot avoid liability
just by citing some other factor that contributed to its chal-
lenged employment decision. So long as the plaintiff 's sex
was one but-for cause of that decision, that is enough to trig-
ger the law. See ibid.; Nassar, 570 U. S., at 350.
No doubt, Congress could have taken a more parsimonious
approach. As it has in other statutes, it could have added
“solely” to indicate that actions taken “because of ” the con-
fuence of multiple factors do not violate the law. Cf. 11
U. S. C. § 525; 16 U. S. C. § 511. Or it could have written
“primarily because of ” to indicate that the prohibited factor
had to be the main cause of the defendant's challenged em-
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657
Opinion of the Court
ployment decision. Cf. 22 U. S. C. § 2688. But none of this
is
the law we have. If anything, Congress has moved in the
opposite direction, supplementing Title VII in 1991 to allow
a plaintiff to prevail merely by showing that a protected trait
like sex was a “motivating factor” in a defendant's challenged
employment practice. Civil Rights Act of 1991, § 107, 105
Stat. 1075, codifed at 42 U. S. C. § 2000e–2(m). Under this
more forgiving standard, liability can sometimes follow even
if sex wasn't a but-for cause of the employer's challenged
decision. Still, because nothing in our analysis depends
on the motivating factor test, we focus on the more tradi-
tional but-for causation standard that continues to afford a
viable, if no longer exclusive, path to relief under Title VII.
§ 2000e–2(a)(1).
As sweeping as even the but-for causation standard can
be, Title VII does not concern itself with everything that
happens “because of ” sex. The statute imposes liability on
employers only when they “fail or refuse to hire,” “dis-
charge,” “or otherwise . . . discriminate against” someone
because of a statutorily protected characteristic like sex.
Ibid. The employers acknowledge that they discharged the
plaintiffs in today's cases, but assert that the statute's list of
verbs is qualifed by the last item on it: “otherwise . . . dis-
criminate against.” By virtue of the word otherwise, the
employers suggest, Title VII concerns itself not with every
discharge, only w ith those discharges that i nvolve
discrimination.
Accepting this point, too, for argument's sake, the question
becomes: What did “discriminate” mean in 1964? As it
turns out, it meant then roughly what it means today: “To
make a difference in treatment or favor (of one as compared
with others).” Webster's New International Dictionary 745
(2d ed. 1954). To “discriminate against” a person, then,
would seem to mean treating that individual worse than
others who are similarly situated. See Burlington N. &
S. F. R. Co. v. White, 548 U. S. 53, 59 (2006). In so-called
658 BOSTOCK
v. CLAYTON COUNTY
Opinion of the Court
“disparate treatment” cases like today's, this Court has also
held
that the difference in treatment based on sex must be
intentional. See, e. g., Watson v. Fort Worth Bank & Trust,
487 U. S. 977, 986 (1988). So, taken together, an employer
who intentionally treats a person worse because of sex—such
as by fring the person for actions or attributes it would tol-
erate in an individual of another sex—discriminates against
that person in violation of Title VII.
At frst glance, another interpretation might seem possi-
ble. Discrimination sometimes involves “the act, practice,
or an instance of discriminating categorically rather than
individually. ” Webster 's New Collegiate Dictionary 326
(1975); see also post, at 709, n. 22 (Alito, J., dissenting). On
that understanding, the statute would require us to consider
the employer's treatment of groups rather than individuals,
to see how a policy affects one sex as a whole versus the
other as a whole. That idea holds some intuitive appeal too.
Maybe the law concerns itself simply with ensuring that em-
ployers don't treat women generally less favorably than they
do men. So how can we tell which sense, individual or
group, “discriminate” carries in Title VII?
The statute answers that question directly. It tells us
three times—including immediately after the words “dis-
criminate against”—that our focus should be on individuals,
not groups: Employers may not “fail or refuse to hire or . . .
discharge any individual, or otherwise . . . discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such ind i v i du a l's . . . sex. ” § 2000e– 2(a)(1) (emphasis
added). And the meaning of “individual” was as uncontro-
versial in 1964 as it is today: “A particular being as distin-
guished from a class, species, or collection.” Webster's New
International Dictionary, at 1267. Here, again, Congress
could have written the law differently. It might have said
that “it shall be an unlawful employment practice to prefer
one sex to the other in hiring, fring, or the terms or condi-
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659
Opinion of the Court
tions of employment.” It might have said that there should
be
no “sex discrimination,” perhaps implying a focus on dif-
ferential treatment between the two sexes as groups. More
narrowly still, it could have forbidden only “sexist policies”
against women as a class. But, once again, that is not the
law we have.
The consequences of the law's focus on individuals rather
than groups are anything but academic. Suppose an em-
ployer fres a woman for refusing his sexual advances. It's
no defense for the employer to note that, while he treated
that individual woman worse than he would have treated a
man, he gives preferential treatment to female employees
overall. The employer is liable for treating this woman
worse in part because of her sex. Nor is it a defense for an
employer to say it discriminates against both men and
women because of sex. This statute works to protect indi-
viduals of both sexes from discrimination, and does so
equally. So an employer who fres a woman, Hannah, be-
cause she is insuffciently feminine and also fres a man, Bob,
for being insuffciently masculine may treat men and women
as groups more or less equally. But in both cases the em-
ployer fres an individual in part because of sex. Instead of
avoiding Title VII exposure, this employer doubles it.
B
From the ordinary public meaning of the statute's lan-
guage at the time of the law's adoption, a straightforward
rule emerges: An employer violates Title VII when it inten-
tionally fres an individual employee based in part on sex.
It doesn't matter if other factors besides the plaintiff 's sex
contributed to the decision. And it doesn't matter if the em-
ployer treated women as a group the same when compared
to men as a group. If the employer intentionally relies in
part on an individual employee's sex when deciding to dis-
charge the employee—put differently, if changing the em-
ployee's sex would have yielded a different choice by the
660 BOSTOCK
v. CLAYTON COUNTY
Opinion of the Court
employer—a statutory violation has occurred. Title VII's
message
is “simple but momentous”: An individual employ-
ee's sex is “not relevant to the selection, evaluation, or com-
pensation of employees.” Price Waterhouse v. Hopkins, 490
U. S. 228, 239 (1989) (plurality opinion).
The statute's message for our cases is equally simple and
momentous: An individual's homosexuality or transgender
status is not relevant to employment decisions. That's be-
cause it is impossible to discriminate against a person for
being homosexual or transgender without discriminating
against that individual based on sex. Consider, for example,
an employer with two employees, both of whom are attracted
to men. The two individuals are, to the employer's mind,
materially identical in all respects, except that one is a man
and the other a woman. If the employer fres the male em-
ployee for no reason other than the fact he is attracted to
men, the employer discriminates against him for traits or
actions it tolerates in his female colleague. Put differently,
the employer intentionally singles out an employee to fre
based in part on the employee's sex, and the affected employ-
ee's sex is a but-for cause of his discharge. Or take an em-
ployer who fres a transgender person who was identifed as
a male at birth but who now identifes as a female. If the
employer retains an otherwise identical employee who was
identifed as female at birth, the employer intentionally pe-
nalizes a person identifed as male at birth for traits or ac-
tions that it tolerates in an employee identifed as female at
birth. Again, the individual employee's sex plays an unmis-
takable and impermissible role in the discharge decision.
That disting uishes these cases from countless others
where Title VII has nothing to say. Take an employer who
fres a female employee for tardiness or incompetence or sim-
ply supporting the wrong sports team. Assuming the em-
ployer would not have tolerated the same trait in a man,
Title VII stands silent. But unlike any of these other traits
or actions, homosexuality and transgender status are inextri-
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661
Opinion of the Court
cably bound up with sex. Not because homosexuality or
transgender
status are related to sex in some vague sense
or because discrimination on these bases has some disparate
impact on one sex or another, but because to discriminate
on these grounds requires an employer to intentionally treat
individual employees differently because of their sex.
Nor does it matter that, when an employer treats one em-
ployee worse because of that individual's sex, other factors
may contribute to the decision. Consider an employer with
a policy of fring any woman he discovers to be a Yankees fan.
Carrying out that rule because an employee is a woman and
a fan of the Yankees is a fring “because of sex” if the em-
ployer would have tolerated the same allegiance in a male
employee. Likewise here. When an employer fres an em-
ployee because she is homosexual or transgender, two causal
factors may be in play—both the individual's sex and some-
thing else (the sex to which the individual is attracted or
with which the individual identifes). But Title VII doesn't
care. If an employer would not have discharged an em-
ployee but for that individual's sex, the statute's causation
standard is met, and liability may attach.
Reframing the additional causes in today's cases as addi-
tional intentions can do no more to insulate the employers
from liability. Intentionally burning down a neighbor 's
house is arson, even if the perpetrator's ultimate intention
(or motivation) is only to improve the view. No less, inten-
tional discrimination based on sex violates Title VII, even if
it is intended only as a means to achieving the employer's
ultimate goal of discriminating against homosexual or trans-
gender employees. There is simply no escaping the role in-
tent plays here: Just as sex is necessarily a but-for cause
when an employer discriminates against homosexual or
transgender employees, an employer who discriminates on
these grounds inescapably intends to rely on sex in its deci-
sionmaking. Imagine an employer who has a policy of fring
any employee known to be homosexual. The employer hosts
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an offce holiday party and invites employees to bring their
spouses.
A model employee arrives and introduces a man-
ager to Susan, the employee's wife. Will that employee be
fred? If the policy works as the employer intends, the an-
swer depends entirely on whether the model employee is a
man or a woman. To be sure, that employer's ultimate goal
might be to discriminate on the basis of sexual orientation.
But to achieve that purpose the employer must, along the
way, intentionally treat an employee worse based in part on
that individual's sex.
An employer musters no better a defense by responding
that it is equally happy to fre male and female employees
who are homosexual or transgender. Title VII liability is
not limited to employers who, through the sum of all of their
employment actions, treat the class of men differently than
the class of women. Instead, the law makes each instance
of discriminating against an individual employee because of
that individual's sex an independent violation of Title VII.
So just as an employer who fres both Hannah and Bob for
failing to fulfll traditional sex stereotypes doubles rather
than eliminates Title VII liability, an employer who fres
both Hannah and Bob for being gay or transgender does
the same.
At bottom, these cases involve no more than the straight-
forward application of legal terms with plain and settled
meanings. For an employer to discriminate against employ-
ees for being homosexual or transgender, the employer must
intentionally discriminate against individual men and women
in part because of sex. That has always been prohibited by
Title VII's plain terms—and that “should be the end of the
analysis.” 883 F. 3d, at 135 (Cabranes, J., concurring in
judgment).
C
If more support for our conclusion were required, there's
no need to look far. All that the statute's plain terms sug-
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gest, this Court's cases have already confrmed. Consider
three
of our leading precedents.
In Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971)
(per curiam), a company allegedly refused to hire women
with young children, but did hire men with children the same
age. Because its discrimination depended not only on the
employee's sex as a female but also on the presence of an-
other criterion—namely, being a parent of young children—
the company contended it hadn't engaged in discrimination
“because of ” sex. The company maintained, too, that it
hadn't violated the law because, as a whole, it tended to favor
hiring women over men. Unsurprisingly by now, these sub-
missions did not sway the Court. That an employer dis-
criminates intentionally against an individual only in part
because of sex supplies no defense to Title VII. Nor does
the fact an employer may happen to favor women as a class.
In Los Angeles Dept. of Water and Power v. Manhart, 435
U. S. 702 (1978), an employer required women to make larger
pension fund contributions than men. The employer sought
to justify its disparate treatment on the ground that women
tend to live longer than men, and thus are likely to receive
more from the pension fund over time. By everyone's ad-
mission, the employer was not guilty of animosity against
women or a “purely habitual assumptio[n] about a woman's
inability to perform certain kinds of work”; instead, it relied
on what appeared to be a statistically accurate statement
about life expectancy. Id., at 707–708. Even so, the Court
recognized, a rule that appears evenhanded at the group
level can prove discriminatory at the level of individuals.
True, women as a class may live longer than men as a class.
But “[t]he statute's focus on the individual is unambiguous,”
and any individual woman might make the larger pension
contributions and still die as early as a man. Id., at 708.
Likewise, the Court dismissed as irrelevant the employer's
insistence that its actions were motivated by a wish to
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achieve classwide equality between the sexes: An employer's
i
ntentional discrimination on the basis of sex is no more per-
missible when it is prompted by some further intention (or
motivation), even one as prosaic as seeking to account for
actuarial tables. Ibid. The employer violated Title VII be-
cause, when its policy worked exactly as planned, it could not
“pass the simple test” asking whether an individual female
employee would have been treated the same regardless of
her sex. Id., at 711.
In Oncale v. Sundowner Offshore Services, Inc., 523 U. S.
75 (1998), a male plaintiff alleged that he was singled out by
his male co-workers for sexual harassment. The Court held
it was immaterial that members of the same sex as the
victim committed the alleged discrimination. Nor did the
Court concern itself with whether men as a group were sub-
ject to discrimination or whether something in addition to
sex contributed to the discrimination, like the plaintiff 's con-
duct or personal attributes. “[A]ssuredly,” the case didn't
involve “the principal evil Congress was concerned with
when it enacted Title VII.” Id., at 79. But, the Court
unanimously explained, it is “the provisions of our laws
rather than the principal concerns of our legislators by which
we are governed.” Ibid. Because the plaintiff alleged that
the harassment would not have taken place but for his sex—
that is, the plaintiff would not have suffered similar treat-
ment if he were female—a triable Title VII claim existed.
The lessons these cases hold for ours are by now familiar.
First, it's irrelevant what an employer might call its dis-
criminatory practice, how others might label it, or what else
might motivate it. In Manhart, the employer called its rule
requiring women to pay more into the pension fund a “life
expectancy” adjustment necessary to achieve sex equality.
In Phillips, the employer could have accurately spoken of
its policy as one based on “motherhood.” In much the same
way, today's employers might describe their actions as moti-
vated by their employees' homosexuality or transgender sta-
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tus. But just as labels and additional intentions or motiva-
ti
ons didn't make a difference in Manhart or Phillips, they
cannot make a difference here. When an employer fres an
employee for being homosexual or transgender, it necessarily
and intentionally discriminates against that individual in
part because of sex. And that is all Title VII has ever de-
manded to establish liability.
Second, the plaintiff 's sex need not be the sole or primary
cause of the employer's adverse action. In Phillips, Man-
hart, and Oncale, the defendant easily could have pointed to
some other, nonprotected trait and insisted it was the more
important factor in the adverse employment outcome. So,
too, it has no signifcance here if another factor—such as the
sex the plaintiff is attracted to or presents as—might also be
at work, or even play a more important role in the employ-
er's decision.
Finally, an employer cannot escape liability by demon-
strating that it treats males and females comparably as
groups. As Manhart teaches, an employer is liable for in-
tentionally requiring an individual female employee to pay
more into a pension plan than a male counterpart even if the
scheme promotes equality at the group level. Likewise, an
employer who intentionally fres an individual homosexual or
transgender employee in part because of that individual's sex
violates the law even if the employer is willing to subject all
male and female homosexual or transgender employees to
the same rule.
III
What do the employers have to say in reply? For present
purposes, they do not dispute that they fred the plaintiffs
for being homosexual or transgender. Sorting out the true
reasons for an adverse employment decision is often a hard
business, but none of that is at issue here. Rather, the em-
ployers submit that even intentional discrimination against
employees based on their homosexuality or transgender sta-
tus supplies no basis for liability under Title VII.
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The employers' argument proceeds in two stages. Seek-
i
ng footing in the statutory text, they begin by advancing a
number of reasons why discrimination on the basis of homo-
sexuality or transgender status doesn't involve discrimina-
tion because of sex. But each of these arguments turns out
only to repackage errors we've already seen and this Court's
precedents have already rejected. In the end, the employ-
ers are left to retreat beyond the statute's text, where they
fault us for ignoring the legislature's purposes in enacting
Title VII or certain expectations about its operation. They
warn, too, about consequences that might follow a ruling for
the employees. But none of these contentions about what
the employers think the law was meant to do, or should do,
allow us to ignore the law as it is.
A
Maybe most intuitively, the employers assert that discrim-
ination on the basis of homosexuality and transgender status
aren't referred to as sex discrimination in ordinary conversa-
tion. If asked by a friend (rather than a judge) why they
were fred, even today's plaintiffs would likely respond that
it was because they were gay or transgender, not because of
sex. According to the employers, that conversational an-
swer, not the statute's strict terms, should guide our think-
ing and suffce to defeat any suggestion that the employees
now before us were fred because of sex. Cf. post, at 684–
685 (Alito, J., dissenting); post, at 786–791 (Kavanaugh, J.,
dissenting).
But this submission rests on a mistaken understanding of
what kind of cause the law is looking for in a Title VII case.
In conversation, a speaker is likely to focus on what seems
most relevant or informative to the listener. So an em-
ployee who has just been fred is likely to identify the pri-
mary or most direct cause rather than list literally every
but-for cause. To do otherwise would be tiring at best.
But these conversational conventions do not control Title
VII's legal analysis, which asks simply whether sex was a
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but-for cause. In Phillips, for example, a woman who was
not
hired under the employer's policy might have told her
friends that her application was rejected because she was a
mother, or because she had young children. Given that
many women could be hired under the policy, it's unlikely
she would say she was not hired because she was a woman.
But the Court did not hesitate to recognize that the em-
ployer in Phillips discriminated against the plaintiff because
of her sex. Sex wasn't the only factor, or maybe even the
main factor, but it was one but-for cause—and that was
enough. You can call the statute's but-for causation test
what you will—expansive, legalistic, the dissents even dis-
miss it as wooden or literal. But it is the law.
Trying another angle, the defendants before us suggest
that an employer who discriminates based on homosexuality
or transgender status doesn't intentionally discriminate
based on sex, as a disparate treatment claim requires. See
post, at 690–693 (Alito, J., dissenting); post, at 790–791 (Ka-
vanaugh, J., dissenting). But, as we've seen, an employer
who discriminates against homosexual or transgender em-
ployees necessarily and intentionally applies sex-based rules.
An employer that announces it will not employ anyone who
is homosexual, for example, intends to penalize male employ-
ees for being attracted to men and female employees for
being attracted to women.
What, then, do the employers mean when they insist inten-
tional discrimination based on homosexuality or transgender
status isn't intentional discrimination based on sex? Maybe
the employers mean they don't intend to harm one sex or
the other as a class. But as should be clear by now, the
statute focuses on discrimination against individuals, not
groups. Alternatively, the employers may mean that they
don't perceive themselves as motivated by a desire to dis-
criminate based on sex. But nothing in Title VII turns on
the employer's labels or any further intentions (or motiva-
tions) for its conduct beyond sex discrimination. In Man-
hart, the employer intentionally required women to make
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higher pension contributions only to fulfll the further pur-
pose
of making things more equitable between men and
women as groups. In Phillips, the employer may have per-
ceived itself as discriminating based on motherhood, not sex,
given that its hiring policies as a whole favored women. But
in both cases, the Court set all this aside as irrelevant. The
employers' policies involved intentional discrimination be-
cause of sex, and Title VII liability necessarily followed.
Aren't these cases different, the employers ask, given that
an employer could refuse to hire a gay or transgender indi-
vidual without ever learning the applicant's sex? Suppose
an employer asked homosexual or transgender applicants to
tick a box on its application form. The employer then had
someone else redact any information that could be used
to discern sex. The resulting applications would disclose
which individuals are homosexual or transgender without re-
vealing whether they also happen to be men or women.
Doesn't that possibility indicate that the employer's discrimi-
nation against homosexual or transgender persons cannot be
sex discrimination?
No, it doesn't. Even in this example, the individual appli-
cant's sex still weighs as a factor in the employer's decision.
Change the hypothetical ever so slightly and its faws be-
come apparent. Suppose an employer's application form of-
fered a single box to check if the applicant is either black or
Catholic. If the employer refuses to hire anyone who checks
that box, would we conclude the employer has complied with
Title VII, so long as it studiously avoids learning any partic-
ular applicant's race or religion? Of course not: By inten-
tionally setting out a rule that makes hiring turn on race or
religion, the employer violates the law, whatever he might
know or not know about individual applicants.
The same holds here. There is no way for an applicant to
decide whether to check the homosexual or transgender box
without considering sex. To see why, imagine an applicant
doesn't know what the words homosexual or transgender
mean. Then try writing out instructions for who should
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check the box without using the words man, woman, or sex
(
or some synonym). It can't be done. Likewise, there is no
way an employer can discriminate against those who check
the homosexual or transgender box without discriminating
in part because of an applicant's sex. By discriminating
against homosexuals, the employer intentionally penalizes
men for being attracted to men and women for being at-
tracted to women. By discriminating against transgender
persons, the employer unavoidably discriminates against
persons with one sex identifed at birth and another today.
Any way you slice it, the employer intentionally refuses to
hire applicants in part because of the affected individuals'
sex, even if it never learns any applicant's sex.
Next, the employers turn to Title VII's list of protected
characteristics—race, color, religion, sex, and national origin.
Because homosexuality and transgender status can't be
found on that list and because they are conceptually distinct
from sex, the employers reason, they are implicitly excluded
from Title VII's reach. Put another way, if Congress had
wanted to address these matters in Title VII, it would have
referenced them specifcally. Cf. post, at 688 (Alito, J., dis-
senting); post, at 791–793 (Kavanaugh, J., dissenting).
But that much does not follow. We agree that homosexu-
ality and transgender status are distinct concepts from sex.
But, as we've seen, discrimination based on homosexuality
or transgender status necessarily entails discrimination
based on sex; the frst cannot happen without the second.
Nor is there any such thing as a “canon of donut holes,” in
which Congress's failure to speak directly to a specifc case
that falls within a more general statutory rule creates a tacit
exception. Instead, when Congress chooses not to include
any exceptions to a broad rule, courts apply the broad rule.
And that is exactly how this Court has always approached
Title VII. “Sexual harassment” is conceptually distinct from
sex discrimination, but it can fall within Title VII's sweep.
Oncale, 523 U. S., at 79–80. Same with “motherhood dis-
crimination.” See Phillips, 400 U. S., at 544. Would the em-
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ployers have us reverse those cases on the theory that Con-
gress
could have spoken to those problems more specifcally?
Of course not. As enacted, Title VII prohibits all forms of
discrimination because of sex, however they may manifest
themselves or whatever other labels might attach to them.
The employers try the same point another way. Since
1964, they observe, Congress has considered several propos-
als to add sexual orientation to Title VII's list of protected
characteristics, but no such amendment has become law.
Meanwhile, Congress has enacted other statutes addressing
other topics that do discuss sexual orientation. This posten-
actment legislative history, they urge, should tell us some-
thing. Cf. post, at 683–684, 722–723 (Alito, J., dissenting);
post, at 782, 793 (Kavanaugh, J., dissenting).
But what? There's no authoritative evidence explaining
why later Congresses adopted other laws referencing sexual
orientation but didn't amend this one. Maybe some in the
later legislatures understood the impact Title VII's broad
language already promised for cases like ours and didn't
think a revision needed. Maybe others knew about its im-
pact but hoped no one else would notice. Maybe still others,
occupied by other concerns, didn't consider the issue at all.
All we can know for certain is that speculation about why
a later Congress declined to adopt new legislation offers a
“particularly dangerous” basis on which to rest an interpre-
tation of an existing law a different and earlier Congress
did adopt. Pension Beneft Guaranty Corporation v. LTV
Corp., 496 U. S. 633, 650 (1990); see also United States v.
Wells, 519 U. S. 482, 496 (1997); Sullivan v. Finkelstein, 496
U. S. 617, 632 (1990) (Scalia, J., concurring in part) (“Argu-
ments based on subsequent legislative history . . . should not
be taken seriously, not even in a footnote”).
That leaves the employers to seek a different sort of ex-
ception. Maybe the traditional and simple but-for causation
test should apply in all other Title VII cases, but it just
doesn't work when it comes to cases involving homosexual
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and transgender employees. The test is too blunt to capture
the
nuances here. The employers illustrate their concern
with an example. When we apply the simple test to
Mr. Bostock—asking whether Mr. Bostock, a man attracted
to other men, would have been fred had he been a woman—
we don't just change his sex. Along the way, we change his
sexual orientation too (from homosexual to heterosexual).
If the aim is to isolate whether a plaintiff 's sex caused the
dismissal, the employers stress, we must hold sexual orienta-
tion constant—meaning we need to change both his sex and
the sex to which he is attracted. So for Mr. Bostock, the
question should be whether he would've been fred if he were
a woman attracted to women. And because his employer
would have been as quick to fre a lesbian as it was a gay man,
the employers conclude, no Title VII violation has occurred.
While the explanation is new, the mistakes are the same.
The employers might be onto something if Title VII only
ensured equal treatment between groups of men and women
or if the statute applied only when sex is the sole or primary
reason for an employer's challenged adverse employment ac-
tion. But both of these premises are mistaken. Title VII's
plain terms and our precedents don't care if an employer
treats men and women comparably as groups; an employer
who fres both lesbians and gay men equally doesn't diminish
but doubles its liability. Just cast a glance back to Manhart,
where it was no defense that the employer sought to equalize
pension contributions based on life expectancy. Nor does
the statute care if other factors besides sex contribute to
an employer's discharge decision. Mr. Bostock's employer
might have decided to fre him only because of the confuence
of two factors, his sex and the sex to which he is attracted.
But exactly the same might have been said in Phillips,
where motherhood was the added variable.
Still, the employers insist, something seems different here.
Unlike certain other employment policies this Court has ad-
dressed that harmed only women or only men, the employ-
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ers' policies in the cases before us have the same adverse
consequences
for men and women. How could sex be neces-
sary to the result if a member of the opposite sex might face
the same outcome from the same policy?
What the employers see as unique isn't even unusual.
Often in life and law two but-for factors combine to yield
a result that could have also occurred in some other way.
Imagine that it's a nice day outside and your house is too
warm, so you decide to open the window. Both the cool tem-
perature outside and the heat inside are but-for causes of
your choice to open the window. That doesn't change just
because you also would have opened the window had it been
warm outside and cold inside. In either case, no one would
deny that the window is open “because of ” the outside tem-
perature. Our cases are much the same. So, for example,
when it comes to homosexual employees, male sex and at-
traction to men are but-for factors that can combine to get
them fred. The fact that female sex and attraction to
women can also get an employee fred does no more than
show the same outcome can be achieved through the combi-
nation of different factors. In either case, though, sex plays
an essential but-for role.
At bottom, the employers' argument unavoidably comes
down to a suggestion that sex must be the sole or primary
cause of an adverse employment action for Title VII liability
to follow. And, as we've seen, that suggestion is at odds
with everything we know about the statute. Consider an
employer eager to revive the workplace gender roles of the
1950s. He enforces a policy that he will hire only men as
mechanics and only women as secretaries. When a qualifed
woman applies for a mechanic position and is denied, the
“simple test” immediately spots the discrimination: A quali-
fed man would have been given the job, so sex was a but-
for cause of the employer's refusal to hire. But like the em-
ployers before us today, this employer would say not so fast.
By comparing the woman who applied to be a mechanic to a
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man who applied to be a mechanic, we've quietly changed
two
things: the applicant's sex and her trait of failing to con-
form to 1950s gender roles. The “simple test” thus over-
looks that it is really the applicant's bucking of 1950s gender
roles, not her sex, doing the work. So we need to hold that
second trait constant: Instead of comparing the disappointed
female applicant to a man who applied for the same position,
the employer would say, we should compare her to a man
who applied to be a secretary. And because that jobseeker
would be refused too, this must not be sex discrimination.
No one thinks that, so the employers must scramble to
justify deploying a stricter causation test for use only in
cases involving discrimination based on sexual orientation
or transgender status. Such a rule would create a curious
discontinuity in our case law, to put it mildly. Employer
hires based on sexual stereotypes? Simple test. Employer
sets pension contributions based on sex? Simple test. Em-
ployer fres men who do not behave in a suffciently mascu-
line way around the offce? Simple test. But when that
same employer discriminates against women who are at-
tracted to women, or persons identifed at birth as women
who later identify as men, we suddenly roll out a new and
more rigorous standard? Why are these reasons for taking
sex into account different from all the rest? Title VII's text
can offer no answer.
B
Ultimately, the employers are forced to abandon the statu-
tory text and precedent altogether and appeal to assump-
tions and policy. Most pointedly, they contend that few in
1964 would have expected Title VII to apply to discrimina-
tion against homosexual and transgender persons. And
whatever the text and our precedent indicate, they say,
shouldn't this fact cause us to pause before recognizing
liability?
It might be tempting to reject this argument out of hand.
This Court has explained many times over many years that,
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when the meaning of the statute's terms is plain, our job is
at
an end. The people are entitled to rely on the law as
written, without fearing that courts might disregard its plain
terms based on some extratextual consideration. See, e. g.,
Carcieri v. Salazar, 555 U. S. 379, 387 (2009); Connecticut
Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992); Rubin
v. United States, 449 U. S. 424, 430 (1981). Of course, some
Members of this Court have consulted legislative history
when interpreting ambiguous statutory language. Cf. post,
at 721 (Alito, J., dissenting). But that has no bearing here.
“Legislative history, for those who take it into account, is
meant to clear up ambiguity, not create it.” Milner v. De-
partment of Navy, 562 U. S. 562, 574 (2011). And as we
have seen, no ambiguity exists about how Title VII's terms
apply to the facts before us. To be sure, the statute's appli-
cation in these cases reaches “beyond the principal evil” leg-
islators may have intended or expected to address. Oncale,
523 U. S., at 79. But “ `[t]he fact that [a statute] has been
applied in situations not expressly anticipated by Congress' ”
does not demonstrate ambiguity; instead, it simply “ `demon-
strates [the] breadth' ” of a legislative command. Sedima,
S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985). And “it
is ultimately the provisions of ” those legislative commands
“rather than the principal concerns of our legislators by
which we are governed.” Oncale, 523 U. S., at 79; see also
A. Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 101 (2012) (noting that unexpected applications
of broad language refect only Congress's “presumed point
[to] produce general coverage—not to leave room for courts
to recognize ad hoc exceptions”).
Still, while legislative history can never defeat unambigu-
ous statutory text, historical sources can be useful for a dif-
ferent purpose: Because the law's ordinary meaning at the
time of enactment usually governs, we must be sensitive to
the possibility a statutory term that means one thing today
or in one context might have meant something else at the
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time of its adoption or might mean something different in
another
context. And we must be attuned to the possibility
that a statutory phrase ordinarily bears a different meaning
than the terms do when viewed individually or literally. To
ferret out such shifts in linguistic usage or subtle distinctions
between literal and ordinary meaning, this Court has some-
times consulted the understandings of the law's drafters as
some (not always conclusive) evidence. For example, in the
context of the National Motor Vehicle Theft Act, this Court
admitted that the term “vehicle” in 1931 could literally mean
“a conveyance working on land, water or air.” McBoyle v.
United States, 283 U. S. 25, 26 (1931). But given contextual
clues and “everyday speech” at the time of the Act's adoption
in 1919, this Court concluded that “vehicles” in that statute
included only things “moving on land,” not airplanes too.
Ibid. Similarly, in New Prime, we held that, while the term
“contracts of employment” today might seem to encompass
only contracts with employees, at the time of the statute's
adoption the phrase was ordinarily understood to cover con-
tracts with independent contractors as well. 586 U. S., at
112–116. Cf. post, at 785–786 (Kavanaugh, J., dissenting)
(providing additional examples).
The employers, however, advocate nothing like that here.
They do not seek to use historical sources to illustrate that
the meaning of any of Title VII's language has changed since
1964 or that the statute's terms, whether viewed individually
or as a whole, ordinarily carried some message we have
missed. To the contrary, as we have seen, the employers
agree with our understanding of all the statutory language—
“discriminate against any individual . . . because of such indi-
vidual's . . . sex.” Nor do the competing dissents offer an
alternative account about what these terms mean either
when viewed individually or in the aggregate. Rather than
suggesting that the statutory language bears some other
meaning, the employers and dissents merely suggest that,
because few in 1964 expected today's result, we should not
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dare to admit that it follows ineluctably from the statutory
text.
When a new application emerges that is both unex-
pected and important, they would seemingly have us merely
point out the question, refer the subject back to Congress,
and decline to enforce the plain terms of the law in the
meantime.
That is exactly the sort of reasoning this Court has long
rejected. Admittedly, the employers take pains to couch
their argument in terms of seeking to honor the statute's
“expected applications” rather than vindicate its “legislative
intent.” But the concepts are closely related. One could
easily contend that legislators only intended expected appli-
cations or that a statute's purpose is limited to achieving
applications foreseen at the time of enactment. However
framed, the employers' logic impermissibly seeks to displace
the plain meaning of the law in favor of something lying be-
yond it.
If anything, the employers' new framing may only add new
problems. The employers assert that “no one” in 1964 or
for some time after would have anticipated today's result.
But is that really true? Not long after the law's passage,
gay and transgender employees began fling Title VII com-
plaints, so at least some people foresaw this potential appli-
cation. See, e. g., Smith v. Liberty Mut. Ins. Co., 395 F.
Supp. 1098, 1099 (ND Ga. 1975) (addressing claim from 1969);
Holloway v. Arthur Andersen & Co., 566 F. 2d 659, 661 (CA9
1977) (addressing claim from 1974). And less than a decade
after Title VII's passage, during debates over the Equal
Rights Amendment, others counseled that its language—
which was strikingly similar to Title VII's—might also pro-
tect homosexuals from discrimination. See, e. g., Note, The
Legality of Homosexual Marriage, 82 Yale L. J. 573, 583–
584 (1973).
Why isn't that enough to demonstrate that today's result
isn't totally unexpected? How many people have to foresee
the application for it to qualify as “expected”? Do we look
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only at the moment the statute was enacted, or do we allow
some
time for the implications of a new statute to be worked
out? Should we consider the expectations of those who had
no reason to give a particular application any thought or only
those with reason to think about the question? How do we
account for those who change their minds over time, after
learning new facts or hearing a new argument? How spe-
cifcally or generally should we frame the “application” at
issue? None of these questions have obvious answers, and
the employers don't propose any.
One could also reasonably fear that objections about unex-
pected applications will not be deployed neutrally. Often
lurking just behind such objections resides a cynicism that
Congress could not possibly have meant to protect a disfa-
vored group. Take this Court's encounter with the Ameri-
cans with Disabilities Act's directive that no “ `public entity' ”
can discriminate against any “ `qualifed individual with a dis-
ability.' ” Pennsylvania Dept. of Corrections v. Yeskey, 524
U. S. 206, 208 (1998). Congress, of course, didn't list every
public entity the statute would apply to. And no one batted
an eye at its application to, say, post offces. But when the
statute was applied to prisons, curiously, some demanded
a closer look: Pennsylvania argued that “Congress did not
`envisio[n] that the ADA would be applied to state prison-
ers.' ” Id., at 211–212. This Court emphatically rejected
that view, explaining that, “in the context of an unambiguous
statutory text,” whether a specifc application was antici-
pated by Congress “is irrelevant.” Id., at 212. As Yeskey
and today's cases exemplify, applying protective laws to
groups that were politically unpopular at the time of the
law's passage—whether prisoners in the 1990s or homosex-
ual and transgender employees in the 1960s—often may be
seen as unexpected. But to refuse enforcement just because
of that, because the parties before us happened to be unpopu-
lar at the time of the law's passage, would not only require
us to abandon our role as interpreters of statutes; it would
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Opinion of the Court
tilt the scales of justice in favor of the strong or popular and
neg
lect the promise that all persons are entitled to the bene-
ft of the law's terms. Cf. post, at 709–716 (Alito, J., dis-
senting); post, at 799–800 (Kavanaugh, J., dissenting).
The employer's position also proves too much. If we
applied Title VII's plain text only to applications some (yet-
to-be-determined) group expected in 1964, we'd have more
than a little law to overturn. Start with Oncale. How
many people in 1964 could have expected that the law would
turn out to protect male employees? Let alone to protect
them from harassment by other male employees? As we
acknowledged at the time, “male-on-male sexual harassment
in the workplace was assuredly not the principal evil Con-
gress was concerned with when it enacted Title VII.” 523
U. S., at 79. Yet the Court did not hesitate to recognize that
Title VII's plain terms forbade it. Under the employer's
logic, it would seem this was a mistake.
That's just the beginning of the law we would have to un-
ravel. As one Equal Employment Opportunity Commission
(EEOC) Commissioner observed shortly after the law's pas-
sage, the words of “ `the sex provision of Title VII [are] diff-
cult to . . . control.' ” Franklin, Inventing the “Traditional
Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307, 1338
(2012) (quoting Federal Mediation Service To Play Role in
Implementing Title VII, [1965–1968 Transfer Binder] CCH
Employment Practices ¶8046, p. 6074). The “diffcult[y]”
may owe something to the initial proponent of the sex dis-
crimination rule in Title VII, Representative Howard Smith.
On some accounts, the congressman may have wanted (or at
least was indifferent to the possibility of ) broad language
with wide-ranging effect. Not necessarily because he was
interested in rooting out sex discrimination in all its forms,
but because he may have hoped to scuttle the whole Civil
Rights Act and thought that adding language covering
sex discrimination would serve as a poison pill. See C.
Whalen & B. Whalen, The Longest Debate: A Legislative
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679
Opinion of the Court
History of the 1964 Civil Rights Act 115–118 (1985). Cer-
t
ainly nothing in the meager legislative history of this provi-
sion suggests it was meant to be read narrowly.
Whatever his reasons, thanks to the broad language
Representative Smith introduced, many, maybe most, appli-
cations of Title VII's sex provision were “unanticipated” at
the time of the law's adoption. In fact, many now-obvious
applications met with heated opposition early on, even
among those tasked with enforcing the law. In the years
immediately following Title VII's passage, the EEOC off-
cially opined that listing men's positions and women's posi-
tions separately in job postings was simply helpful rather
than discriminatory. Franklin, 125 Harv. L. Rev., at 1340
(citing Press Release, EEOC (Sept. 22, 1965)). Some courts
held that Title VII did not prevent an employer from fring
an employee for refusing his sexual advances. See, e. g.,
Barnes v. Train, 13 FEP Cases 123, 1974 WL 10628, *1 (D DC,
Aug. 9, 1974). And courts held that a policy against hiring
mothers but not fathers of young children wasn't discrimina-
tion because of sex. See Phillips v. Martin Marietta Corp.,
411 F. 2d 1 (CA5 1969), rev'd, 400 U. S. 542 (1971) (per curiam).
Over time, though, the breadth of the statutory language
proved too diffcult to deny. By the end of the 1960s, the
EEOC reversed its stance on sex-segregated job advertising.
See Franklin, 125 Harv. L. Rev., at 1345. In 1971, this Court
held that treating women with children differently from men
with children violated Title VII. Phillips, 400 U. S., at 544.
And by the late 1970s, courts began to recognize that sexual
harassment can sometimes amount to sex discrimination.
See, e. g., Barnes v. Costle, 561 F. 2d 983, 990 (CADC 1977).
While to the modern eye each of these examples may seem
“plainly [to] constitut[e] discrimination because of biological
sex,” post, at 719 (Alito, J., dissenting), all were hotly con-
tested for years following Title VII's enactment. And as
with the discrimination we consider today, many federal
judges long accepted interpretations of Title VII that ex-
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Opinion of the Court
cluded these situations. Cf. post, at 799–800 (Kavanaugh,
J
., dissenting) (highlighting that certain lower courts have
rejected Title VII claims based on homosexuality and trans-
gender status). Would the employers have us undo every
one of these unexpected applications too?
The weighty implications of the employers' argument from
expectations also reveal why they cannot hide behind the no-
elephants-in-mouseholes canon. That canon recognizes that
Congress “does not alter the fundamental details of a regula-
tory scheme in vague terms or ancillary provisions.” Whit-
man v. American Trucking Assns., Inc., 531 U. S. 457, 468
(2001). But it has no relevance here. We can't deny that
today's holding—that employers are prohibited from fring
employees on the basis of homosexuality or transgender
status—is an elephant. But where's the mousehole? Title
VII's prohibition of sex discrimination in employment is a
major piece of federal civil rights legislation. It is written
in starkly broad terms. It has repeatedly produced unex-
pected applications, at least in the view of those on the re-
ceiving end of them. Congress's key drafting choices—to
focus on discrimination against individuals and not merely
between groups and to hold employers liable whenever sex
is a but-for cause of the plaintiff 's injuries—virtually guaran-
teed that unexpected applications would emerge over time.
This elephant has never hidden in a mousehole; it has been
standing before us all along.
With that, the employers are left to abandon their concern
for expected applications and fall back to the last line of
defense for all failing statutory interpretation arguments:
naked policy appeals. If we were to apply the statute's plain
language, they complain, any number of undesirable policy
consequences would follow. Cf. post, at 724–734 (Alito, J.,
dissenting). Gone here is any pretense of statutory inter-
pretation; all that's left is a suggestion we should proceed
without the law's guidance to do as we think best. But
that's an invitation no court should ever take up. The place
to make new legislation, or address unwanted consequences
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681
Opinion of the Court
of old legislation, lies in Congress. When it comes to statu-
tory
interpretation, our role is limited to applying the law's
demands as faithfully as we can in the cases that come before
us. As judges we possess no special expertise or authority
to declare for ourselves what a self-governing people should
consider just or wise. And the same judicial humility that
requires us to refrain from adding to statutes requires us to
refrain from diminishing them.
What are these consequences anyway? The employers
worry that our decision will sweep beyond Title VII to other
federal or state laws that prohibit sex discrimination. And,
under Title VII itself, they say sex-segregated bathrooms,
locker rooms, and dress codes will prove unsustainable after
our decision today. But none of these other laws are before
us; we have not had the beneft of adversarial testing about
the meaning of their terms, and we do not prejudge any such
question today. Under Title VII, too, we do not purport to
address bathrooms, locker rooms, or anything else of the
kind. The only question before us is whether an employer
who fres someone simply for being homosexual or transgen-
der has discharged or otherwise discriminated against that
individual “because of such individual's sex.” As used in
Title VII, the term “ `discriminate against' ” refers to “dis-
tinctions or differences in treatment that injure protected
individuals.” Burlington N. & S. F. R., 548 U. S., at 59.
Firing employees because of a statutorily protected trait
surely counts. Whether other policies and practices might
or might not qualify as unlawful discrimination or fnd justi-
fcations under other provisions of Title VII are questions
for future cases, not these.
Separately, the employers fear that complying with Title
VII's requirement in cases like ours may require some em-
ployers to violate their religious convictions. We are also
deeply concerned with preserving the promise of the free
exercise of religion enshrined in our Constitution; that guar-
antee lies at the heart of our pluralistic society. But worries
about how Title VII may intersect with religious liberties
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Opinion of the Court
are nothing new; they even predate the statute's passage.
As
a result of its deliberations in adopting the law, Congress
included an express statutory exception for religious organi-
zations. § 2000e–1(a). This Court has also recognized that
the First Amendment can bar the application of employment
discrimination laws “to claims concerning the employment
relationship between a religious institution and its minis-
ters.” Hosanna-Tabor Evangelical Lutheran Church and
School v. EEOC, 565 U. S. 171, 188 (2012). And Congress
has gone a step further yet in the Religious Freedom Resto-
ration Act of 1993 (RFRA), 107 Stat. 1488, codifed at 42
U. S. C. § 2000bb et seq. That statute prohibits the federal
government from substantially burdening a person's exercise
of religion unless it demonstrates that doing so both furthers
a compelling governmental interest and represents the least
restrictive means of furthering that interest. § 2000bb–1.
Because RFRA operates as a kind of super statute, displac-
ing the normal operation of other federal laws, it might
supersede Title VII's commands in appropriate cases. See
§ 2000bb–3.
But how these doctrines protecting religious liberty inter-
act with Title VII are questions for future cases too. Harris
Funeral Homes did unsuccessfully pursue a RFRA-based de-
fense in the proceedings below. In its certiorari petition,
however, the company declined to seek review of that ad-
verse decision, and no other religious liberty claim is now
before us. So while other employers in other cases may
raise free exercise arguments that merit careful consider-
ation, none of the employers before us today represent in
this Court that compliance with Title VII will infringe their
own religious liberties in any way.
*
Some of those who supported adding language to Title VII
to ban sex discrimination may have hoped it would derail the
entire Civil Rights Act. Yet, contrary to those intentions,
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683
Alito, J., dissenting
the bill became law. Since then, Title VII's effects have un-
folded
with far-reaching consequences, some likely beyond
what many in Congress or elsewhere expected.
But none of this helps decide today's cases. Ours is a soci-
ety of written laws. Judges are not free to overlook plain
statutory commands on the strength of nothing more than
suppositions about intentions or guesswork about expecta-
tions. In Title VII, Congress adopted broad language mak-
ing it illegal for an employer to rely on an employee's sex
when deciding to fre that employee. We do not hesitate to
recognize today a necessary consequence of that legislative
choice: An employer who fres an individual merely for being
gay or transgender defes the law.
The judg ments of the Second and Sixth Circuits i n
Nos. 17–1623 and 18–107 are affrmed. The judgment of the
Eleventh Circuit in No. 17–1618 is reversed, and the case is
remanded for fur ther proceedings consistent w ith th is
opinion.
It is so ordered.
Justice Alito, w ith whom Justice Thomas joi ns,
dissenting.
There is only one word for what the Court has done today:
legislation. The document that the Court releases is in the
form of a judicial opinion interpreting a statute, but that is
deceptive.
Title VII of the Civil Rights Act of 1964 prohibits employ-
ment discrimination on any of fve specifed grounds: “race,
color, rel ig i on, sex, [and] nati ona l or ig in. ” 42 U. S. C.
§ 2000e–2(a)(1). Neither “sexual orientation” nor “gender
identity” appears on that list. For the past 45 years, bills
have been introduced in Congress to add “sexual orienta-
tion” to the list,
1
and in recent years, bills have included
1
E. g., H. R. 166, 94th Cong., 1st Sess., § 6 (1975); H. R. 451, 95th Cong.,
1st Sess., § 6 (1977); S. 2081, 96th Cong., 1st Sess. (1979); S. 1708, 97th
Cong., 1st Sess. (1981); S. 430, 98th Cong., 1st Sess. (1983); S. 1432, 99th
684 BOSTOCK
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Alito, J., dissenting
“gender identity” as well.
2
But
to date, none has passed
both Houses.
Last year, the House of Representatives passed a bill that
would amend Title VII by defning sex discrimination to in-
clude both “sexual orientation” and “gender identity,” H. R.
5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the
Senate. An alternative bill, H. R. 5331, 116th Cong., 1st
Sess. (2019), would add similar prohibitions but contains pro-
visions to protect religious liberty.
3
This bill remains before
a House Subcommittee.
Because no such amendment of Title VII has been enacted
in accordance with the requirements in the Constitution
(passage in both Houses and presentment to the President,
Art. I, § 7, cl. 2), Title VII's prohibition of discrimination be-
cause of “sex” still means what it has always meant. But
the Court is not deterred by these constitutional niceties.
Usurping the constitutional authority of the other branches,
the Court has essentially taken H. R. 5's provision on em-
ployment discrimination and issued it under the guise of
statutory interpretation.
4
A more brazen abuse of our au-
thority to interpret statutes is hard to recall.
The Court tries to convince readers that it is merely en-
forcing the terms of the statute, but that is preposterous.
Cong., 1st Sess., § 5 (1985); S. 464, 100th Cong., 1st Sess., § 5 (1987); H. R.
655, 101st Cong., 1st Sess., § 2 (1989); S. 574, 102d Cong., 1st Sess., § 5
(1991); H. R. 423, 103d Cong., 1st Sess., § 2 (1993); S. 932, 104th Cong., 1st
Sess. (1995); H. R. 365, 105th Cong., 1st Sess., § 2 (1997); H. R. 311, 106th
Cong., 1st Sess., § 2 (1999); H. R. 217, 107th Cong., 1st Sess., § 2 (2001); S.
16, 108th Cong., 1st Sess., §§ 701–704 (2003); H. R. 288, 109th Cong., 1st
Sess., § 2 (2005).
2
See, e. g., H. R. 2015, 110th Cong., 1st Sess. (2007); H. R. 3017, 111th
Cong., 1st Sess. (2009); H. R. 1397, 112th Cong., 1st Sess. (2011); H. R.
1755, 113th Cong., 1st Sess. (2013); H. R. 3185, 114th Cong., 1st Sess., § 7
(2015); H. R. 2282, 115th Cong., 1st Sess., § 7 (2017); H. R. 5, 116th Cong.,
1st Sess. (2019).
3
H. R. 5331, 116th Cong., 1st Sess., §§ 4(b), (c) (2019).
4
Section 7(b) of H. R. 5 strikes the term “sex” in 42 U. S. C. § 2000e–2
and i nser ts: “SEX (INCLUDING SEXUAL ORIENTATION AND
GENDER IDENTITY).”
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Alito, J., dissenting
Even as understood today, the concept of discrimination be-
cause
of “sex” is different from discrimination because of
“sexual orientation” or “gender identity.” And in any event,
our duty is to interpret statutory terms to “mean what they
conveyed to reasonable people at the time they were writ-
ten.” A. Scalia & B. Garner, Reading Law: The Interpreta-
tion of Legal Texts 16 (2012) (emphasis added). If every
single living American had been surveyed in 1964, it would
have been hard to fnd any who thought that discrimination
because of sex meant discrimination because of sexual orien-
tation––not to mention gender identity, a concept that was
essentially unknown at the time.
The Court attempts to pass off its decision as the inevita-
ble product of the textualist school of statutory interpreta-
tion championed by our late colleague Justice Scalia, but no
one should be fooled. The Court's opinion is like a pirate
ship. It sails under a textualist fag, but what it actually
represents is a theory of statutory interpretation that
Justice Scalia excoriated––the theory that courts should
“update” old statutes so that they better refect the current
values of society. See A. Scalia, A Matter of Interpretation
22 (1997). If the Court fnds it appropriate to adopt this
theory, it should own up to what it is doing.
5
Many will applaud today's decision because they agree on
policy grounds with the Court's updating of Title VII. But
the question in these cases is not whether discrimination be-
cause of sexual orientation or gender identity should be out-
lawed. The question is whether Congress did that in 1964.
It indisputably did not.
5
That is what Judge Posner did in the Seventh Circuit case holding
that Title VII prohibits discrimination because of sexual orientation. See
Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339 (2017) (en
banc). Judge Posner agreed with that result but wrote:
“I would prefer to see us acknowledge openly that today we, who are
judges rather than members of Congress, are imposing on a hal f-century-
old statute a meaning of `sex discrimination' that the Congress that
enacted it would not have accepted.” Id., at 357 (concurring opinion) (em-
phasis added).
686 BOSTOCK
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Alito, J., dissenting
I
A
T
itle VII, as noted, prohibits discrimination “because of
. . . sex,” § 2000e–2(a)(1), and in 1964, it was as clear as clear
could be that this meant discrimination because of the ge-
netic and anatomical characteristics that men and women
have at the time of birth. Determined searching has not
found a single dictionary from that time that defned “sex”
to mean sexual orientation, gender identity, or “transgender
status.”
6
Ante, at 653. (Appendix A, infra, to this opinion
includes the full defnitions of “sex” in the unabridged dic-
tionaries in use in the 1960s.)
In all those dictionaries, the primary defnition of “sex”
was essentially the same as that in the then-most recent edi-
tion of Webster's New International Dictionary 2296 (def. 1)
(2d ed. 1953): “[o]ne of the two divisions of organisms formed
on the distinction of male and female.” See also American
Heritage Dictionary 1187 (def. 1(a)) (1969) (“[t]he property or
quality by which organisms are classifed according to their
reproductive functions”); Random House Dictionary of the
English Language 1307 (def. 1) (1966) (Random House Dic-
tionary) (“the fact or character of being either male or
female”); 9 Oxford English Dictionary 577 (def. 1) (1933)
(“[e]ither of the two divisions of organic beings distinguished
as male and female respectively”).
6
The Court does not defne what it means by “transgender status,” but
the American Psychological Association describes “transgender” as “[a]n
umbrella term encompassing those whose gender identities or gender roles
differ from those typically associated with the sex they were assigned
at birth.” A Glossary: Defning Transgender Terms, 49 Monitor on Psy-
chology 32 (Sept. 2018), https://www.apa.org/monitor/2018/09/ce-corner-
glossary. It defnes “gender identity” as “[a]n internal sense of being male,
female or something else, which may or may not correspond to an individu-
al's sex assigned at birth or sex characteristics.” Ibid. Under these def-
nitions, there is no apparent difference between discrimination because of
transgender status and discrimination because of gender identity.
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Alito, J., dissenting
The Court does not dispute that this is what “sex” means
i
n Title VII, although it coyly suggests that there is at least
some support for a different and potentially relevant defni-
tion. Ante, at 655. (I address alternative defnitions below.
See Part I–B–3, infra.) But the Court declines to stand on
that ground and instead “proceed[s] on the assumption that
`sex' . . . refer[s] only to biological distinctions between male
and female.” Ante, at 655.
If that is so, it should be perfectly clear that Title VII does
not reach discrimination because of sexual orientation or
gender identity. If “sex” in Title VII means biologically
male or female, then discrimination because of sex means
discrimination because the person in question is biologically
male or biologically female, not because that person is sexu-
ally attracted to members of the same sex or identifes as a
member of a particular gender.
How then does the Court claim to avoid that conclusion?
The Court tries to cloud the issue by spending many pages
discussing matters that are beside the point. The Court ob-
serves that a Title VII plaintiff need not show that “sex”
was the sole or primary motive for a challenged employment
decision or its sole or primary cause; that Title VII is limited
to discrimination with respect to a list of specifed actions
(such as hiring, fring, etc.); and that Title VII protects indi-
vidual rights, not group rights. See ante, at 655–659, 662.
All that is true, but so what? In cases like those before
us, a plaintiff must show that sex was a “motivating factor”
in the challenged employment action, 42 U. S. C. § 2000e–
2(m), so the question we must decide comes down to this: if
an individual employee or applicant for employment shows
that his or her sexual orientation or gender identity was a
“motivating factor” in a hiring or discharge decision, for ex-
ample, is that enough to establish that the employer discrimi-
nated “because of . . . sex”? Or, to put the same question in
different terms, if an employer takes an employment action
solely because of the sexual orientation or gender identity
688 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
of an employee or applicant, has that employer necessarily
discr
iminated because of biological sex?
The answers to those questions must be no, unless discrim-
ination because of sexual orientation or gender identity in-
herently constitutes discrimination because of sex. The
Court attempts to prove that point, and it argues, not merely
that the terms of Title VII can be interpreted that way but
that they cannot reasonably be interpreted any other way.
According to the Court, the text is unambiguous. See ante,
at 674, 677, 680.
The arrogance of this argument is breathtaking. As I will
show, there is not a shred of evidence that any Member of
Congress interpreted the statutory text that way when Title
VII was enacted. See Part III–B, infra. But the Court
apparently thinks that this was because the Members were
not “smart enough to realize” what its language means.
Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339,
357 (CA7 2017) (Posner, J., concurring). The Court seem-
ingly has the same opinion about our colleagues on the
Courts of Appeals, because until 2017, every single Court
of Appeals to consider the question interpreted Title VII's
prohibition against sex discrimination to mean discrimina-
tion on the basis of biological sex. See Part III–C, infra.
And for good measure, the Court's conclusion that Title VII
unambiguously reaches discrimination on the basis of sexual
orientation and gender identity necessarily means that the
EEOC failed to see the obvious for the frst 48 years after
Title VII became law.
7
Day in and day out, the Commission
7
The EEOC frst held that “discrimination against a transgender indi-
vidual because that person is transgender” violates Title VII in 2012 in
Macy v. Holder, 2012 WL 1435995, *11 (Apr. 20, 2012), though it earlier
advanced that position in an amicus brief in Federal District Court in
2011, ibid., n. 16. It did not hold that discrimination on the basis of sexual
orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015 WL
4397641 (July 15, 2015).
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689
Alito, J., dissenting
enforced Title VII but did not grasp what discrimination “be-
cause
of . . . sex” unambiguously means. See Part III–C,
infra.
The Court's argument is not only arrogant, it is wrong.
It fails on its own terms. “Sex,” “sexual orientation,” and
“gender identity” are different concepts, as the Court con-
cedes. Ante, at 669 (“homosexuality and transgender status
are distinct concepts from sex”). And neither “sexual orien-
tation” nor “gender identity” is tied to either of the two bio-
logical sexes. See ante, at 661 (recognizing that “discrimi-
nation on these bases” does not have “some disparate impact
on one sex or another”). Both men and women may be at-
tracted to members of the opposite sex, members of the same
sex, or members of both sexes.
8
And individuals who are
born with the genes and organs of either biological sex may
identify with a different gender.
9
Using slightly different terms, the Court asserts again and
again that discrimination because of sexual orientation or
gender identity inherently or necessarily entails discrimina-
tion because of sex. See ante, at 651–652 (When an employer
“fres an individual for being homosexual or transgender,”
“[s]ex plays a necessary and undisguisable role in the deci-
sion”); ante, at 660 (“[I]t is impossible to discriminate against
8
“Sexual orientation refers to a person's erotic response tendency or
sexual attractions, be they directed toward individuals of the same sex
(homosexual), the other sex (heterosexual), or both sexes (bisexual).” 1
B. Sadock, V. Sadock, & P. Ruiz, Comprehensive Textbook of Psychiatry
2061 (9th ed. 2009); see also American Heritage Dictionary 1607 (5th ed.
2011) (defning “sexual orientation” as “[t]he direction of a person's sexual
interest, as towards people of the opposite sex, the same sex, or both
sexes”); Webster's New College Dictionary 1036 (3d ed. 2008) (defning
“sexual orientation” as “[t]he direction of one's sexual interest toward
members of the same, opposite, or both sexes”).
9
See n. 6, supra; see also Sadock, supra, at 2063 (“transgender” refers
to “any individual who identifes with and adopts the gender role of a
member of the other biological sex”).
690 BOSTOCK
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Alito, J., dissenting
a person for being homosexual or transgender without dis-
cr
iminating against that individual based on sex”); ante, at
661 (“[W]hen an employer discriminates against homosexual
or transgender employees, [the] employer . . . inescapably
intends to rely on sex in its decisionmaking ”); ante, at 662
(“For an employer to discriminate against employees for
being homosexual or transgender, the employer must inten-
tionally discriminate against individual men and women in
part because of sex”); ante, at 665 (“When an employer fres
an employee for being homosexual or transgender, it neces-
sarily and intentionally discriminates against that individual
in part because of sex”); ante, at 669 (“[D]iscrimination based
on homosexuality or transgender status necessarily entails
discrimination based on sex”). But repetition of an asser-
tion does not make it so, and the Court's repeated assertion
is demonstrably untrue.
Contrary to the Court's contention, discrimination because
of sexual orientation or gender identity does not in and of
itself entail discrimination because of sex. We can see this
because it is quite possible for an employer to discriminate
on those grounds without taking the sex of an individual ap-
plicant or employee into account. An employer can have a
policy that says: “We do not hire gays, lesbians, or transgen-
der individuals.” And an employer can implement this pol-
icy without paying any attention to or even knowing the bio-
logical sex of gay, lesbian, and transgender applicants. In
fact, at the time of the enactment of Title VII, the United
States military had a blanket policy of refusing to enlist
gays or lesbians, and under this policy for years thereafter,
applicants for enlistment were required to complete a form
that asked whether they were “homosexual.” Appendix D,
infra, at 760, 773.
At oral argument, the attorney representing the employ-
ees, a prominent professor of constitutional law, was asked if
there would be discrimination because of sex if an employer
with a blanket policy against hiring gays, lesbians, and trans-
gender individuals implemented that policy without knowing
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691
Alito, J., dissenting
the biological sex of any job applicants. Her candid answer
was
that this would “not” be sex discrimination.
10
And she
was right.
The attorney's concession was necessary, but it is fatal to
the Court's interpretation, for if an employer discriminates
against individual applicants or employees without even
knowing whether they are male or female, it is impossible to
argue that the employer intentionally discriminated because
of sex. Contra, ante, at 668–669. An employer cannot in-
tentionally discriminate on the basis of a characteristic of
which the employer has no knowledge. And if an employer
does not violate Title VII by discriminating on the basis of
sexual orientation or gender identity without knowing the
sex of the affected individuals, there is no reason why the
same employer could not lawfully implement the same policy
even if it knows the sex of these individuals. If an employer
takes an adverse employment action for a perfectly legiti-
mate reason—for example, because an employee stole com-
pany property—that action is not converted into sex discrim-
ination simply because the employer knows the employee's
sex. As explained, a disparate treatment case requires
proof of intent—i. e., that the employee's sex motivated the
fring. In short, what this example shows is that discrimi-
nation because of sexual orientation or gender identity does
not inherently or necessarily entail discrimination because
of sex, and for that reason, the Court's chief argument
collapses.
Trying to escape the consequences of the attorney's con-
cession, the Court offers its own hypothetical:
“Suppose an employer's application form offered a single
box to check if the applicant is either black or Catholic.
If the employer refuses to hire anyone who checks that
10
See Tr. of Oral Arg. in Nos. 17–1618, 17–1623, pp. 69–70 (“If there was
that case, it might be the rare case in which sexual orientation discrimina-
tion is not a subset of sex”); see also id., at 69 (“Somebody who comes in
and says I'm not going to tell you what my sex is, but, believe me, I was
fred for my sexual orientation, that person will lose”).
692 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
box, would we conclude the employer has complied with
T
itle VII, so long as it studiously avoids learning any
particular applicant's race or religion? Of course not.”
Ante, at 668.
How this hypothetical proves the Court's point is a mys-
tery. A person who checked that box would presumably be
black, Catholic, or both, and refusing to hire an applicant
because of race or religion is prohibited by Title VII. Re-
jecting applicants who checked a box indicating that they are
homosexual is entirely different because it is impossible to
tell from that answer whether an applicant is male or female.
The Court follows this strange hypothetical with an even
stranger argument. The Court argues that an applicant
could not answer the question whether he or she is homosex-
ual without knowing something about sex. If the applicant
was unfamiliar with the term “homosexual,” the applicant
would have to look it up or ask what the term means. And
because this applicant would have to take into account his or
her sex and that of the persons to whom he or she is sexually
attracted to answer the question, it follows, the Court rea-
sons, that an employer could not reject this applicant with-
out taking the applicant's sex into account. See ante, at
668–669.
This is illogical. Just because an applicant cannot say
whether he or she is homosexual without knowing his or her
own sex and that of the persons to whom the applicant is
attracted, it does not follow that an employer cannot reject
an applicant based on homosexuality without knowing the
applicant's sex.
While the Court's imagined application form proves noth-
ing, another hypothetical case offered by the Court is telling.
But what it proves is not what the Court thinks. The
Court posits:
“Imagine an employer who has a policy of fring any em-
ployee known to be homosexual. The employer hosts
an offce holiday party and invites employees to bring
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693
Alito, J., dissenting
their spouses. A model employee arrives and introduces
a
manager to Susan, the employee's wife. Will that em-
ployee be fred? If the policy works as the employer in-
tends, the answer depends entirely on whether the model
employee is a man or a woman.” Ante, at 661–662.
This example disproves the Court's argument because it is
perfectly clear that the employer's motivation in fring the
female employee had nothing to do with that employee's sex.
The employer presumably knew that this employee was a
woman before she was invited to the fateful party. Yet the
employer, far from holding her biological sex against her,
rated her a “model employee.” At the party, the employer
learned something new, her sexual orientation, and it was
this new information that motivated her discharge. So this
is another example showing that discrimination because of
sexual orientation does not inherently involve discrimination
because of sex.
In addition to the failed argument just discussed, the Court
makes two other arguments, more or less in passing. The
frst of these is essentially that sexual orientation and gender
identity are closely related to sex. The Court argues that
sexual orientation and gender identity are “inextricably
bound up with sex,” ante, at 660–661, and that discrimination
on the basis of sexual orientation or gender identity involves
the application of “sex-based rules,” ante, at 667. This is a
variant of an argument found in many of the briefs fled in
support of the employees and in the lower court decisions
that agreed with the Court's interpretation. All these vari-
ants stress that sex, sexual orientation, and gender identity
are related concepts. The Seventh Circuit observed that
“[i]t would require considerable calisthenics to remove `sex'
from `sexual orientation.' ” Hively, 853 F. 3d, at 350.
11
The
11
See also Brief for William N. Eskridge Jr. et al. as Amici Curiae 2
(“[T]here is no reasonable way to disentangle sex from same-sex attraction
or transgender status”).
694 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
Second Circuit wrote that sex is necessarily “a factor in sex-
ua
l orientation” and further concluded that “sexual orienta-
tion is a function of sex.” 883 F. 3d 100, 112–113 (2018) (en
banc). Bostock's brief and those of amici supporting his po-
sition contend that sexual orientation is “a sex-based consid-
eration.”
12
Other briefs state that sexual orientation is “a
function of sex”
13
or is “intrinsically related to sex.”
14
Simi-
larly, Stephens argues that sex and gender identity are nec-
essarily intertwined: “By defnition, a transgender person is
someone who lives and identifes with a sex different than
the sex assigned to the person at birth.”
15
It is curious to see this argument in an opinion that pur-
ports to apply the purest and highest form of textualism be-
cause the argument effectively amends the statutory text.
Title VII prohibits discrimination because of sex itself, not
everything that is related to, based on, or defned with refer-
ence to, “sex.” Many things are related to sex. Think of
all the nouns other than “orientation” that are commonly
modifed by the adjective “sexual.” Some examples yielded
by a quick computer search are “sexual harassment,” “sexual
assault, “sexual violence,” “sexual intercourse,” and “sexual
content.”
Does the Court really think that Title VII prohibits dis-
crimination on all these grounds? Is it unlawful for an em-
ployer to refuse to hire an employee with a record of sexual
harassment in prior jobs? Or a record of sexual assault or
violence?
To be fair, the Court does not claim that Title VII prohib-
its discrimination because of everything that is related to
12
Brief for Petitioner in No. 17–1618, p. 14; see also Brief for Southern
Poverty Law Center et al. as Amici Curiae 7–8.
13
Brief for Scholars Who Study the LGB Population as Amici Curiae
in Nos. 17–1618, 17–1623, p. 10.
14
Brief for American Psycholog ical Association et al. as Amici Cu-
riae 11.
15
Reply Brief for Respondent Aimee Stephens in No. 18–107, p. 5.
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695
Alito, J., dissenting
sex. The Court draws a distinction between things that are
“
inextricably” related and those that are related in “some
vague sense.” Ante, at 660–661. Apparently the Court
would graft onto Title VII some arbitrary line separating
the things that are related closely enough and those that are
not.
16
And it would do this in the name of high textualism.
An additional argument made in passing also fghts the
text of Title VII and the policy it refects. The Court pro-
claims that “[a]n individual's homosexuality or transgender
status is not relevant to employment decisions.” Ante, at
660. That is the policy view of many people in 2020, and
perhaps Congress would have amended Title VII to imple-
ment it if this Court had not intervened. But that is not the
policy embodied in Title VII in its current form. Title VII
prohibits discrimination based on fve specifed grounds, and
neither sexual orientation nor gender identity is on the list.
As long as an employer does not discriminate based on one
of the listed grounds, the employer is free to decide for itself
which characteristics are “relevant to [its] employment deci-
sions.” Ibid. By proclaiming that sexual orientation and
gender identity are “not relevant to employment decisions,”
the Court updates Title VII to refect what it regards as
2020 values.
The Court's remaining argument is based on a hypotheti-
cal that the Court fnds instructive. In this hypothetical, an
employer has two employees who are “attracted to men,”
and “to the employer's mind” the two employees are “mate-
rially identical” except that one is a man and the other is a
woman. Ibid. (emphasis added). The Court reasons that if
16
Notably, Title VII itself already suggests a line, which the Court ig-
nores. The statute specifes that the terms “because of sex” and “on the
basis of sex” cover certain conditions that are biologically tied to sex,
namely, “pregnancy, childbirth, [and] related medical conditions. ” 42
U. S. C. § 2000e(k). This defnition should inform the meaning of “because
of sex” in Title VII more generally. Unlike pregnancy, neither sexual
orientation nor gender identity is biologically linked to women or men.
696 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
the employer fres the man but not the woman, the employer
is
necessarily motivated by the man's biological sex. Ibid.
After all, if two employees are identical in every respect but
sex, and the employer fres only one, what other reason could
there be?
The problem with this argument is that the Court loads
the dice. That is so because in the mind of an employer who
does not want to employ individuals who are attracted to
members of the same sex, these two employees are not mate-
rially identical in every respect but sex. On the contrary,
they differ in another way that the employer thinks is quite
material. And until Title VII is amended to add sexual ori-
entation as a prohibited ground, this is a view that an
employer is permitted to implement. As noted, other than
prohibiting discrimination on any of fve specifed grounds,
“race, color, religion, sex, [and] national origin,” 42 U. S. C.
§ 2000e–2(a)(1), Title VII allows employers to decide whether
two employees are “materially identical.” Even idiosyn-
cratic criteria are permitted; if an employer thinks that Scor-
pios make bad employees, the employer can refuse to hire
Scorpios. Such a policy would be unfair and foolish, but
under Title VII, it is permitted. And until Title VII is
amended, so is a policy against employing gays, lesbians, or
transgender individuals.
Once this is recognized, what we have in the Court's hypo-
thetical case are two employees who differ in two ways––sex
and sexual orientation––and if the employer fres one and
keeps the other, all that can be inferred is that the employer
was motivated either entirely by sexual orientation, entirely
by sex, or in part by both. We cannot infer with any cer-
tainty, as the hypothetical is apparently meant to suggest,
that the employer was motivated even in part by sex. The
Court harps on the fact that under Title VII a prohibited
ground need not be the sole motivation for an adverse em-
ployment action, see ante, at 661, 665, 671, but its exam-
Cite
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697
Alito, J., dissenting
ple does not show that sex necessarily played any part in
the
employer's thinking.
The Court tries to avoid this inescapable conclusion by ar-
guing that sex is really the only difference between the two
employees. This is so, the Court maintains, because both
employees “are attracted to men.” Ante, at 660. Of course,
the employer would couch its objection to the man differ-
ently. It would say that its objection was his sexual orienta-
tion. So this may appear to leave us with a battle of labels.
If the employer's objection to the male employee is charac-
terized as attraction to men, it seems that he is just like the
woman in all respects except sex and that the employer's
disparate treatment must be based on that one difference.
On the other hand, if the employer's objection is sexual ori-
entation or homosexuality, the two employees differ in two
respects, and it cannot be inferred that the disparate treat-
ment was due even in part to sex.
The Court insists that its label is the right one, and that
presumably is why it makes such a point of arguing that an
employer cannot escape liability under Title VII by giving
sex discrimination some other name. See ante, at 664–665,
667. That is certainly true, but so is the opposite. Some-
thing that is not sex discrimination cannot be converted into
sex discrimination by slapping on that label. So the Court
cannot prove its point simply by labeling the employer's ob-
jection as “attract[ion] to men.” Ante, at 660. Rather, the
Court needs to show that its label is the correct one.
And a labeling standoff would not help the Court because
that would mean that the bare text of Title VII does not
unambiguously show that its interpretation is right. The
Court would have no justifcation for its stubborn refusal to
look any further.
As it turns out, however, there is no standoff. It can eas-
ily be shown that the employer's real objection is not “at-
tract[ion] to men” but homosexual orientation.
698 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
In an effort to prove its point, the Court carefully includes
i
n its example just two employees, a homosexual man and a
heterosexual woman, but suppose we add two more individu-
als, a woman who is attracted to women and a man who is
attracted to women. (A large employer will likely have ap-
plicants and employees who fall into all four categories, and
a small employer can potentially have all four as well.) We
now have the four exemplars listed below, with the dis-
charged employees crossed out:
Man attracted to men
Woman attracted to men
Woman attracted to women
Man attracted to women
The discharged employees have one thing in common. It
is not biological sex, attraction to men, or attraction to
women. It is attraction to members of their own sex—in
a word, sexual orientation. And that, we can infer, is the
employer's real motive.
In sum, the Court's textual arguments fail on their own
terms. The Court tries to prove that “it is impossible to
discriminate against a person for being homosexual or trans-
gender without discriminating against that individual based
on sex,” ante, at 660, but as has been shown, it is entirely
possible for an employer to do just that. “[H]omosexuality
and transgender status are distinct concepts from sex,” ante,
at 669, and discrimination because of sexual orientation or
transgender status does not inherently or necessarily consti-
tute discrimination because of sex. The Court's arguments
are squarely contrary to the statutory text.
But even if the words of Title VII did not defnitively re-
fute the Court's interpretation, that would not justify the
Court's refusal to consider alternative interpretations. The
Court's excuse for ignoring everything other than the bare
statutory text is that the text is unambiguous and therefore
no one can reasonably interpret the text in any way other
than the Court does. Unless the Court has met that high
standard, it has no justifcation for its blinkered approach.
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699
Alito, J., dissenting
And to say that the Court's interpretation is the only possi-
ble
reading is indefensible.
B
Although the Court relies solely on the arguments dis-
cussed above, several other arguments fgure prominently in
the decisions of the lower courts and in briefs submitted by
or in support of the employees. The Court apparently fnds
these arguments unpersuasive, and so do I, but for the sake
of completeness, I will address them briefy.
1
One argument, which relies on our decision in Price Wa-
terhouse v. Hopkins, 490 U. S. 228 (1989) (plurality opinion),
is that discrimination because of sexual orientation or gender
identity violates Title VII because it constitutes prohibited
discrimination on the basis of sex stereotypes. See 883
F. 3d, at 119–123; Hively, 853 F. 3d, at 346; 884 F. 3d 560, 576–
577 (CA6 2018). The argument goes like this. Title VII
prohibits discrimination based on stereotypes about the way
men and women should behave; the belief that a person
should be attracted only to persons of the opposite sex and
the belief that a person should identify with his or her biolog-
ical sex are examples of such stereotypes; therefore, discrim-
ination on either of these grounds is unlawful.
This argument fails because it is based on a faulty premise,
namely, that Title VII forbids discrimination based on sex
stereotypes. It does not. It prohibits discrimination be-
cause of “sex,” and the two concepts are not the same. See
Price Waterhouse, 490 U. S., at 251. That does not mean,
however, that an employee or applicant for employment can-
not prevail by showing that a challenged decision was based
on a sex stereotype. Such evidence is relevant to prove dis-
crimination because of sex, and it may be convincing where
the trait that is inconsistent with the stereotype is one that
would be tolerated and perhaps even valued in a person of
the opposite sex. See ibid.
700 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
Much of the plaintiff 's evidence in Price Waterhouse was
of
this nature. The plaintiff was a woman who was passed
over for partnership at an accounting frm, and some of the
adverse comments about her work appeared to criticize her
for being forceful and insuffciently “feminin[e].” Id., at
235–236.
The main issue in Price Waterhouse––the proper alloca-
tion of the burdens of proof in a so-called mixed motives Title
VII case—is not relevant here, but the plurality opinion, en-
dorsed by four Justices, commented on the issue of sex ste-
reotypes. The plurality observed that “sex stereotypes do
not inevitably prove that gender played a part in a particular
employment decision” but “can certainly be evidence that
gender played a part.” Id., at 251.
17
And the plurality
made it clear that “[t]he plaintiff must show that the em-
ployer actually relied on her gender in making its deci-
sion.” Ibid.
Plaintiffs who allege that they were treated unfavorably
because of their sexual orientation or gender identity are not
in the same position as the plaintiff in Price Waterhouse. In
cases involving discrimination based on sexual orientation or
gender identity, the grounds for the employer's decision—
that individuals should be sexually attracted only to persons
of the opposite biological sex or should identify with their
biological sex—apply equally to men and women. “[H]et-
erosexuality is not a female stereotype; it not a male stereo-
type; it is not a sex-specifc stereotype at all.” Hively, 853
F. 3d, at 370 (Sykes, J., dissenting).
17
Two other Justices concurred in the judgment but did not comment
on the issue of stereotypes. See 490 U. S., at 258–261 (opinion of White,
J.); id., at 261–279 (opinion of O'Connor, J.). And Justice Kennedy reiter-
ated on behalf of the three Justices in dissent that “Title VII creates no
independent cause of action for sex stereotyping,” but he added that “[e]v-
idence of use by decisionmakers of sex stereotypes is, of course, quite
relevant to the question of discriminatory intent.” Id., at 294.
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701
Alito, J., dissenting
To be sure, there may be cases in which a gay, lesbian, or
transgender
individual can make a claim like the one in Price
Waterhouse. That is, there may be cases where traits or
behaviors that some people associate with gays, lesbians, or
transgender individuals are tolerated or valued in persons of
one biological sex but not the other. But that is a differ-
ent matter.
2
A second prominent argument made in support of the re-
sult that the Court now reaches analogizes discrimination
against gays and lesbians to discrimination against a person
who is married to or has an intimate relationship with a per-
son of a different race. Several lower court cases have held
that discrimination on this ground violates Title VII. See,
e. g., Holcomb v. Iona College, 521 F. 3d 130 (CA2 2008); Parr
v. Woodmen of World Life Ins. Co., 791 F. 2d 888 (CA11
1986). And the logic of these decisions, it is argued, applies
equally where an employee or applicant is treated unfavor-
ably because he or she is married to, or has an intimate
relationship with, a person of the same sex.
This argument totally ignores the historically rooted rea-
son why discrimination on the basis of an interracial relation-
ship constitutes race discrimination. And without taking
history into account, it is not easy to see how the decisions
in question ft the terms of Title VII.
Recall that Title VII makes it unlawful for an employer to
discriminate against an individual “because of such individu-
al's race.” 42 U. S. C. § 2000e–2(a) (emphasis added). So if
an employer is happy to employ whites and blacks but will
not employ any employee in an interracial relationship, how
can it be said that the employer is discriminating against
either whites or blacks “because of such individual's race”?
This employer would be applying the same rule to all its
employees regardless of their race.
702 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
The answer is that this employer is discriminating on a
ground
that history tells us is a core form of race discrimina-
tion.
18
“It would require absolute blindness to the history
of racial discrimination in this country not to understand
what is at stake in such cases . . . . A prohibition on `race-
mixing ' was . . . grounded in bigotry against a particular race
and was an integral part of preserving the rigid hierarchical
distinction that denominated members of the black race
as inferior to whites.” 883 F. 3d, at 158–159 (Lynch, J.,
dissenting).
Discrimination because of sexual orientation is different.
It cannot be regarded as a form of sex discrimination on the
ground that applies in race cases since discrimination be-
cause of sexual orientation is not historically tied to a project
that aims to subjugate either men or women. An employer
who discriminates on this ground might be called “homopho-
bic” or “transphobic,” but not sexist. See Wittmer v. Phil-
lips 66 Co., 915 F. 3d 328, 338 (CA5 2019) (Ho, J., concurring).
3
The opinion of the Court intimates that the term “sex”
was not universally understood in 1964 to refer just to the
categories of male and female, see ante, at 655, and while the
Court does not take up any alternative defnition as a ground
for its decision, I will say a word on this subject.
As previously noted, the defnitions of “sex” in the un-
abridged dictionaries in use in the 1960s are reproduced in
Appendix A, infra. Anyone who examines those defnitions
can see that the primary defnition in every one of them re-
fers to the division of living things into two groups, male and
18
Notably, Title VII recognizes that in light of history distinctions on
the basis of race are always disadvantageous, but it permits certain dis-
tinctions based on sex. Title 42 U. S. C. § 2000e–2(e)(1) allows for “in-
stances where religion, sex, or national origin is a bona fde occupational
qualifcation reasonably necessary to the normal operation of [a] particular
business or enterprise.” Race is wholly absent from this list.
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703
Alito, J., dissenting
female, based on biology, and most of the defnitions further
down
the list are the same or very similar. In addition,
some defnitions refer to heterosexual sex acts. See Ran-
dom House Dictionary 1307 (“coitus,” “sexual intercourse”
(defs. 5–6)); American Heritage Dictionary, at 1187 (“[s]exual
intercourse” (def. 5)).
19
Aside from these, what is there? One defnition, “to neck
passionately,” Random House Dictionary 1307 (def. 8), refers
to sexual conduct that is not necessarily heterosexual. But
can it be seriously argued that one of the aims of Title VII
is to outlaw employment discrimination against employees,
whether heterosexual or homosexual, who engage in neck-
ing? And even if Title VII had that effect, that is not what
is at issue in cases like those before us.
That brings us to the two remaining subsidiary defnitions,
both of which refer to sexual urges or instincts and their
manifestations. See the fourth defnition in the American
Heritage Dictionary, at 1187 (“[t]he sexual urge or instinct
as it manifests itself in behavior”), and the fourth defnition
in both Webster's Second and Third (“[p]henomena of sexual
instincts and their manifestations,” Webster's New Interna-
tional Dictionary, at 2296 (2d ed.); Webster's Third New In-
ternational Dictionary 2081 (1966)). Since both of these
come after three prior defnitions that refer to men and
women, they are most naturally read to have the same asso-
ciation, and in any event, is it plausible that Title VII prohib-
its discrimination based on any sexual urge or instinct and
its manifestations? The urge to rape?
Viewing all these defnitions, the overwhelming impact is
that discrimination because of “sex” was understood during
the era when Title VII was enacted to refer to men and
women. (The same is true of current defnitions, which are
19
See American Heritage Dictionary 1188 (1969) (defning “sexual inter-
course”); Webster 's Third New International Dictionary 2082 (1966)
(same); Random House Dictionary of the English Language 1308 (1966)
(same).
704 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
reproduced in Appendix B, infra.) This no doubt explains
why
neither this Court nor any of the lower courts have tried
to make much of the dictionary defnitions of sex just
discussed.
II
A
So far, I have not looked beyond dictionary defnitions of
“sex,” but textualists like Justice Scalia do not confne their
inquiry to the scrutiny of dictionaries. See Manning, Textu-
alism and the Equity of the Statute, 101 Colum. L. Rev. 1,
109 (2001). Dictionary defnitions are valuable because they
are evidence of what people at the time of a statute's enact-
ment would have understood its words to mean. Ibid. But
they are not the only source of relevant evidence, and what
matters in the end is the answer to the question that the
evidence is gathered to resolve: How would the terms of a
statute have been understood by ordinary people at the time
of enactment?
Justice Scalia was perfectly clear on this point. The
words of a law, he insisted, “mean what they conveyed to
reasonable people at the time.” Reading Law, at 16 (empha-
sis added).
20
Leading proponents of Justice Scalia's school of textualism
have expounded on this principle and explained that it is
grounded on an understanding of the way language works.
As Dean John F. Manning explains, “the meaning of language
depends on the way a linguistic community uses words and
phrases in context.” What Divides Textualists From Pur-
posivists? 106 Colum. L. Rev. 70, 78 (2006). “[O]ne can make
sense of others' communications only by placing them in their
appropriate social and linguistic context,” id., at 79–80, and
20
See also Chisom v. Roemer, 501 U. S. 380, 405 (1991) (Scalia, J., dissent-
ing) (“We are to read the words of [a statutory] text as any ordinary Mem-
ber of Congress would have read them . . . and apply the meaning so
determined”).
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705
Alito, J., dissenting
this is no less true of statutes than any other verbal commu-
nicati
ons. “[S]tatutes convey meaning only because mem-
bers of a relevant linguistic community apply shared back-
ground conventions for understanding how particular words
are used in particular contexts.” Manning, The Absurdity
Doctrine, 116 Harv. L. Rev. 2387, 2457 (2003). Therefore,
judges should ascribe to the words of a statute “what a rea-
sonable person conversant with applicable social conventions
would have understood them to be adopting.” Manning, 106
Colum. L. Rev., at 77. Or, to put the point in slightly differ-
ent terms, a judge interpreting a statute should ask “ `what
one would ordinarily be understood as saying, given the cir-
cumstances in which one said it.' ” Manning, 116 Harv. L.
Rev., at 2397–2398.
Judge Frank Easterbrook has made the same points:
“Words are arbitrary signs, having meaning only to the
extent writers and readers share an understanding. . . .
Language in general, and legislation in particular, is a
social enterprise to which both speakers and listeners
contribute, drawing on background understandings and
the str ucture and circumstances of the utterance. ”
Herrmann v. Cencom Cable Assocs., Inc., 978 F. 2d 978,
982 (CA7 1992).
Consequently, “[s]licing a statute into phrases while ignor-
ing . . . the setting of the enactment . . . is a formula for
disaster.” Ibid.; see also Continental Can Co. v. Chicago
Truck Drivers, Helpers and Warehouse Workers Union (In-
dependent) Pension Fund, 916 F. 2d 1154, 1157 (CA7 1990)
(“You don't have to be Ludwig Wittgenstein or Hans-Georg
Gadamer to know that successful communication depends on
meanings shared by interpretive communities”).
Thus, when textualism is properly understood, it calls for
an examination of the social context in which a statute was
enacted because this may have an important bearing on what
its words were understood to mean at the time of enactment.
706 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
Textualists do not read statutes as if they were messages
picked
up by a powerful radio telescope from a distant and
utterly unknown civilization. Statutes consist of communi-
cations between members of a particular linguistic commu-
nity, one that existed in a particular place and at a particular
time, and these communications must therefore be inter-
preted as they were understood by that community at that
time.
For this reason, it is imperative to consider how Americans
in 1964 would have understood Title VII's prohibition of dis-
crimination because of sex. To get a picture of this, we may
imag ine th is scene. Suppose that, wh ile Title VII was
under consideration in Congress, a group of average Ameri-
cans decided to read the text of the bill with the aim of
writing or calling their representatives in Congress and con-
veying their approval or disapproval. What would these
ordinary citizens have taken “discrimination because of sex”
to mean? Would they have thought that this language pro-
hibited discrimination because of sexual orientation or gen-
der identity?
B
The answer could not be clearer. In 1964, ordinary
Americans reading the text of Title VII would not have
dreamed that discrimination because of sex meant discrimi-
nation because of sexual orientation, much less gender iden-
tity. The ordinary meaning of discrimination because of
“sex” was discrimination because of a person's biological sex,
not sexual orientation or gender identity. The possibility
that discrimination on either of these grounds might ft
within some exotic understanding of sex discrimination
would not have crossed their minds.
1
In 1964, the concept of prohibiting discrimination “be-
cause of sex” was no novelty. It was a familiar and well-
understood concept, and what it meant was equal treatment
for men and women.
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as: 590 U. S. 644 (2020)
707
Alito, J., dissenting
Long before Title VII was adopted, many pioneering state
and
federal laws had used language substantively indistin-
guishable from Title VII's critical phrase, “discrimination be-
cause of sex.” For example, the California Constitution of
1879 stipulated that no one, “on account of sex, [could] be
disqualifed from entering upon or pursuing any lawful busi-
ness, vocation, or profession.” Art. XX, § 18 (emphasis
added). It also prohibited a student's exclusion from any
state university department “on account of sex.” Art. IX,
§ 9; accord, Mont. Const., Art. XI, § 9 (1889).
Wyoming 's first Constitution proclaimed broadly that
“[b]oth male and female citizens of this state shall equally
enjoy all civil, political and religious rights and privileges,”
Art. VI, § 1 (1890), and then provided specifcally that “[i]n
none of the public schools . . . shall distinction or discrimina-
tion be made on account of sex,” Art. VII, § 10 (emphasis
added); see also § 16 (the “university shall be equally open to
students of both sexes”). Washington's Constitution like-
wise required “ample provision for the education of all chil-
dren . . . without distinction or preference on account of . . .
sex.” Art. IX, § 1 (1889) (emphasis added).
The Constitution of Utah, adopted in 1895, provided that
the right to vote and hold public offce “shall not be denied or
abridged on account of sex.” Art. IV, § 1 (emphasis added).
And in the next sentence it made clear what “on account of
sex” meant, stating that “[b]oth male and female citizens . . .
shall enjoy equally all civil, political and religious rights and
privileges.” Ibid.
The most prominent example of a provision using this lan-
guage was the Nineteenth Amendment, ratifed in 1920,
which bans the denial or abridgment of the right to vote “on
account of sex.” U. S. Const., Amdt. 19. Similar language
appeared in the proposal of the National Woman's Party for
an Equal Rights Amendment. As framed in 1921, this pro-
posal forbade all “political, civil or legal disabilities or ine-
qualities on account of sex, [o]r on account of marriage.”
Women Lawyers Meet: Representatives of 20 States En-
708 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
dorse Proposed Equal Rights Amendment, N. Y. Times,
Sept.
16, 1921, p. 10.
Similar terms were used in the precursor to the Equal Pay
Act. Introduced in 1944 by Congresswoman Winifred C.
Stanley, it proclaimed that “[d]iscrimination against employ-
ees, in rates of compensation paid, on account of sex” was
“contrary to the public interest.” H. R. 5056, 78th Cong.,
2d Sess.
In 1952, the new Constitution for Puerto Rico, which was
approved by Congress, 66 Stat. 327, prohibited all “discrimi-
nation . . . on account of . . . sex,” Art. II, Bill of Rights
§ 1 (emphasis added), and in the landmark Immigration and
Nationality Act of 1952, Congress outlawed discrimination in
naturalization “because of . . . sex.” 8 U. S. C. § 1422 (em-
phasis added).
In 1958, the International Labour Organisation, a United
Nations agency of which the United States is a member,
recommended that nations bar employment discrimination
“made on the basis of . . . sex.” Convention (No. 111) Con-
cerning Discrimination in Respect of Employment and Occu-
pation, Art. 1, § 1(a), June 25, 1958, 362 U. N. T. S. 32 (empha-
sis added).
In 1961, President Kennedy ordered the Civil Service
Commission to review and modify personnel policies “to as-
sure that selection for any career position is hereafter
made solely on the basis of individual merit and ftness, with-
out regard to sex.”
21
He concurrently established a “Com-
mission on the Status of Women” and directed it to rec-
ommend pol icies “for overcomi ng discr i mi nati ons i n
government and private employment on the basis of sex.”
Exec. Order No. 10980, 3 CFR 138 (1961 Supp.) (emphasis
added).
21
J. Kennedy, Statement by the President on the Establishment of the
President's Commission on the Status of Women 3 (Dec. 14, 1961) (empha-
sis added), https://www.jfklibrary.org/asset-viewer/archives/JFKPOF/093/
JFKPOF-093-004.
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as: 590 U. S. 644 (2020)
709
Alito, J., dissenting
In short, the concept of discrimination “because of,” “on
account
of,” or “on the basis of ” sex was well understood.
It was part of the campaign for equality that had been waged
by women's rights advocates for more than a century, and
what it meant was equal treatment for men and women.
22
2
Discrimination “because of sex” was not understood as
having anything to do with discrimination because of sexual
orientation or transgender status. Any such notion would
have clashed in spectacular fashion with the societal norms
of the day.
For most 21st-century Americans, it is painful to be re-
minded of the way our society once treated gays and lesbi-
ans, but any honest effort to understand what the terms of
Title VII were understood to mean when enacted must take
into account the societal norms of that time. And the plain
truth is that in 1964 homosexuality was thought to be a men-
tal disorder, and homosexual conduct was regarded as mor-
ally culpable and worthy of punishment.
In its then-most recent Diagnostic and Statistical Manual
of Mental Disorders (1952) (DSM–I), the American Psychiat-
22
Analysis of the way Title VII's key language was used in books and
articles during the relevant time period supports this conclusion. A
study searched a vast database of documents from that time to determine
how the phrase “discriminate against . . . because of [some trait]” was
used. Phillips, The Overlooked Textual Evidence in the Title VII Cases:
The Linguistic (and Therefore Textualist) Principle of Compositionality
(manuscript, at 3) (May 11, 2020) (brackets in original) (online source ar-
chived at https://www.supremecourt.gov). The study found that the
phrase was used to denote discrimination against “someone . . . motivated
by prejudice, or biased ideas or attitudes . . . directed at people with that
trait in particular.” Id., at 7 (emphasis deleted). In other words, “dis-
criminate against” was “associated with negative treatment directed at
members of a discrete group.” Id., at 5. Thus, as used in 1964, “discrimi-
nation because of sex” would have been understood to mean discrimination
against a woman or a man based on “unfair beliefs or attitudes” about
members of that particular sex. Id., at 7.
710 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
ric Association (APA) classifed same-sex attraction as a
“sexua
l deviation,” a particular type of “sociopathic person-
ality disturbance,” id., at 38–39, and the next edition, issued
in 1968, similarly classifed homosexuality as a “sexual de-
viatio[n],” Diagnostic and Statistical Manual of Mental Dis-
orders 44 (2d ed.) (DSM–II). It was not until the sixth
printing of the DSM–II in 1973 that this was changed.
23
Society's treatment of homosexuality and homosexual con-
duct was consistent with this understanding. Sodomy was
a crime in every State but Illinois, see W. Eskridge, Dishon-
orable Passions 387–407 (2008), and in the District of Colum-
bia, a law enacted by Congress made sodomy a felony punish-
able by imprisonment for up to 10 years and permitted the
indefnite civil commitment of “sexual psychopath[s],” Act of
June 9, 1948, §§ 104, 201–207, 62 Stat. 347–349.
24
This view of homosexuality was refected in the rules gov-
erning the federal work force. In 1964, federal “[a]gencies
could deny homosexual men and women employment because
of their sexual orientation,” and this practice continued until
1975. GAO, D. Heivilin, Security Clearances: Considera-
23
APA, Homosexuality and Sexual Orientation Disturbance: Proposed
Change in DSM–II, 6th Printing, p. 44 (APA Doc. Ref. No. 730008, 1973)
(reclassifying “homosexuality” as a “[s]exual orientation disturbance,” a
category “for individuals whose sexual interests are directed primarily
toward people of the same sex and who are either disturbed by . . . or
wish to change their sexual orientation,” and explaining that “homosexual-
ity . . . by itself does not constitute a psychiatric disorder”); see also APA,
Diagnostic and Statistical Manual of Mental Disorders 281–282 (3d ed.
1980) (DSM–III) (similarly creating category of “Ego-dystonic Homosexu-
ality” for “homosexuals for whom changing sexual orientations is a
persistent concern,” while observing that “homosexuality itself is not con-
sidered a mental disorder”); Obergefell v. Hodges, 576 U. S. 644, 661 (2015).
24
In 1981, after achieving home rule, the District attempted to decrimi-
nalize sodomy, see D. C. Act No. 4–69, but the House of Representatives
vetoed the bill, H. Res. 208, 97th Cong., 1st Sess. (1981); 127 Cong. Rec.
22764–22779 (1981). Sodomy was not decriminalized in the District until
1995. See Anti-Sexual Abuse Act of 1994, § 501(b), 41 D. C. Reg. 53 (1995),
enacted as D. C. Law 10–257.
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as: 590 U. S. 644 (2020)
711
Alito, J., dissenting
tion of Sexual Orientation in the Clearance Process 2 (GAO/
NSIAD–
95–21, 1995). See, e. g., Anonymous v. Macy, 398
F. 2d 317, 318 (CA5 1968) (affrming dismissal of postal em-
ployee for homosexual acts).
In 1964, individuals who were known to be homosexual
could not obtain security clearances, and any who possessed
clearances were likely to lose them if their orientation was
discovered. A 1953 Executive Order provided that back-
ground investigations should look for evidence of “sexual
perversion,” as well as “[a]ny criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct.” Exec. Order
No. 10450, § 8(a)(1)( i i i), 3 CFR 938 (1949 –1953 Comp.).
“Until about 1991, when agencies began to change their secu-
rity policies and practices regarding sexual orientation, there
were a number of documented cases where defense civilian
or contractor employees' security clearances were denied or
revoked because of their sexual orientation.” GAO, Secu-
rity Clearances, at 2. See, e. g., Adams v. Laird, 420 F. 2d
230, 240 (CADC 1969) (upholding denial of security clearance
to defense contractor employee because he had “engaged in
repeated homosexual acts”); see also Webster v. Doe, 486
U. S. 592, 595, 601 (1988) (concluding that decision to fre a
particular individual because he was homosexual fell within
the “discretion” of the Director of Central Intelligence under
the National Security Act of 1947 and thus was unreviewable
under the APA).
The picture in state employment was similar. In 1964, it
was common for States to bar homosexuals from serving as
teachers. An article summarizing the situation 15 years
after Title VII became law reported that “[a]ll states have
statutes that permit the revocation of teaching certifcates
(or credentials) for immorality, moral turpitude, or unprofes-
sionalism,” and, the survey added, “[h]omosexuality is con-
sidered to fall within all three categories.”
25
25
Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual
Persons in the United States, 30 Hastings L. J. 799, 861 (1979).
712 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
The situation in California is illustrative. California laws
proh
ibited individuals who engaged in “immoral conduct”
(which was construed to include homosexual behavior), as
well as those convicted of “sex offenses” (like sodomy), from
employment as teachers. Cal. Educ. Code Ann. §§ 13202,
13207, 13209, 13218, 13255 (West 1960). The teaching cer-
tifcates of individuals convicted of engaging in homosexual
acts were revoked. See, e. g., Sarac v. State Bd. of Ed., 249
Cal. App. 2d 58, 62–64, 57 Cal. Rptr. 69, 72–73 (1967) (uphold-
ing revocation of secondary teaching credential from teacher
who was convicted of engaging in homosexual conduct on
public beach), overruled in part, Morrison v. State Bd. of
Ed., 1 Cal. 3d 214, 461 P. 2d 375 (1969).
In Florida, the legislature enacted laws authorizing the
revocation of teaching certifcates for “misconduct involving
moral turpitude,” Fla. Stat. Ann. § 229.08(16) (1961), and this
law was used to target homosexual conduct. In 1964, a leg-
islative committee was wrapping up a 6-year campaign to
remove homosexual teachers from public schools and state
universities. As a result of these efforts, the state board of
education apparently revoked at least 71 teachers' certif-
cates and removed at least 14 university professors. Esk-
ridge, Dishonorable Passions, at 103.
Individuals who engaged in homosexual acts also faced the
loss of other occupational licenses, such as those needed to
work as a “lawyer, doctor, mortician, [or] beautician.”
26
See,
e. g., Florida Bar v. Kay, 232 So. 2d 378 (Fla. 1970) (attorney
disbarred after conviction for homosexual conduct in public
bathroom).
In 1964 and for many years thereafter, homosexuals were
barred from the military. See, e. g., Army Reg. 635–89,
§ I(2)(a) (July 15, 1966) (“Personnel who voluntarily engage
in homosexual acts, irrespective of sex, will not be permitted
26
Eskridge, Challenging the Apartheid of the Closet: Establishing Con-
ditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961–1981,
25 Hofstra L. Rev. 817, 819 (1997).
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as: 590 U. S. 644 (2020)
713
Alito, J., dissenting
to serve in the Army in any capacity, and their prompt sepa-
rati
on is mandatory”); Army Reg. 600–443, § I(2) (Apr. 10,
1953) (similar). Prohibitions against homosexual conduct by
members of the military were not eliminated until 2010.
See Don't Ask, Don't Tell Repeal Act of 2010, 124 Stat. 3515
(repealing 10 U. S. C. § 654, which required members of the
Armed Forces to be separated for engaging in homosexual
conduct).
Homosexuals were also excluded from entry into the
United States. The Immigration and Nationality Act of
1952 (INA) excluded aliens “afficted with psychopathic per-
sonality.” 8 U. S. C. § 1182(a)(4) (1964 ed.). In Boutilier v.
INS, 387 U. S. 118, 120–123 (1967), this Court, relying on the
INA's legislative history, interpreted that term to encompass
homosexuals and upheld an alien's deportation on that
ground. Three Justices disagreed with the majority's inter-
pretation of the phrase “psychopathic personality.”
27
But it
apparently did not occur to anyone to argue that the Court's
interpretation was inconsistent with the INA's express pro-
hibition of discrimination “because of sex.” That was how
our society—and this Court—saw things a half century ago.
Discrimination because of sex and discrimination because of
sexual orientation were viewed as two entirely different
concepts.
To its credit, our society has now come to recognize the
injustice of past practices, and this recognition provides the
impetus to “update” Title VII. But that is not our job. Our
duty is to understand what the terms of Title VII were un-
derstood to mean when enacted, and in doing so, we must
take into account the societal norms of that time. We must
therefore ask whether ordinary Americans in 1964 would
have thought that discrimination because of “sex” carried
27
Justices Douglas and Fortas thought that a homosexual is merely “one,
who by some freak, is the product of an arrested development.” Bouti-
lier, 387 U. S., at 127 (Douglas, J., dissenting); see also id., at 125 (Brennan,
J., dissenting) (based on lower court dissent).
714 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
some exotic meaning under which private-sector employers
wou
ld be prohibited from engaging in a practice that repre-
sented the offcial policy of the Federal Government with
respect to its own employees. We must ask whether Ameri-
cans at that time would have thought that Title VII banned
discrimination against an employee for engaging in conduct
that Congress had made a felony and a ground for civil
commitment.
The questions answer themselves. Even if discrimination
based on sexual orientation or gender identity could be
squeezed into some arcane understanding of sex discrimina-
tion, the context in which Title VII was enacted would tell
us that this is not what the statute's terms were understood
to mean at that time. To paraphrase something Justice
Scalia once wrote, “our job is not to scavenge the world of
English usage to discover whether there is any possible
meaning ” of discrimination because of sex that might be
broad enough to encompass discrimination because of sexual
orientation or gender identity. Chisom v. Roemer, 501 U. S.
380, 410 (1991) (dissenting opinion). Without strong evi-
dence to the contrary (and there is none here), our job is to
ascertain and apply the “ordinary meaning ” of the statute.
Ibid. And in 1964, ordinary Americans most certainly
would not have understood Title VII to ban discrimination
because of sexual orientation or gender identity.
The Court makes a tiny effort to suggest that at least some
people in 1964 might have seen what Title VII really means.
Ante, at 676. What evidence does it adduce? One com-
plaint fled in 1969, another fled in 1974, and arguments
made in the mid-1970s about the meaning of the Equal
Rights Amendment. Ibid. To call this evidence merely
feeble would be generous.
C
While Americans in 1964 would have been shocked to
learn that Congress had enacted a law prohibiting sexual
orientation discrimination, they would have been bewildered
Cite
as: 590 U. S. 644 (2020)
715
Alito, J., dissenting
to hear that this law also forbids discrimination on the basis
of
“transgender status” or “gender identity,” terms that
would have left people at the time scratching their heads.
The term “transgender” is said to have been coined “ `in the
early 1970s,' ”
28
and the term “gender identity,” now under-
stood to mean “[a]n internal sense of being male, female or
something else,”
29
apparently frst appeared in an academic
article in 1964.
30
Certainly, neither term was in common
parlance; indeed, dictionaries of the time still primarily de-
fned the word “gender” by reference to grammatical classi-
fcations. See, e. g., American Heritage Dictionary, at 548
(def. 1(a)) (“Any set of two or more categories, such as mascu-
line, feminine, and neuter, into which words are divided . . .
and that determine agreement with or the selection of mod-
ifers, referents, or grammatical forms”).
While it is likely true that there have always been individ-
uals who experience what is now termed “gender dyspho-
ria,” i. e., “[d]iscomfort or distress related to an incongruence
between an individual's gender identity and the gender as-
signed at birth,”
31
the current understanding of the concept
28
Drescher, Transsexualism, Gender Identity Disorder and the DSM, 14
J. Gay & Lesbian Mental Health 109, 110 (2010).
29
American Psychological Association, 49 Monitor on Psychology, at 32.
30
Green, Robert Stoller's Sex and Gender: 40 Years On, 39 Archives
Sexual Behav. 1457 (2010); see Stoller, A Contribution to the Study of
Gender Identity, 45 Int'l J. Psychoanalysis 220 (1964). The term appears
to have been coined a year or two earlier. See Haig, The Inexorable Rise
of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–
2001, 33 Archives Sexual Behav. 87, 93 (2004) (suggesting the term was
frst introduced at 23rd International Psycho-Analytical Congress in
Stockholm in 1963); J. Meyerowitz, How Sex Changed 213 (2002) (referring
to founding of “Gender Identity Research Clinic” at UCLA in 1962). In
his book, Sex and Gender, published in 1968, Robert Stoller referred to
“gender identity” as “a working term” “associated with” his research team
but noted that they were not “fxed either on copyrighting the term or on
defending the concept as one of the splendors of the scientifc world.” Sex
and Gender, p. viii.
31
American Psychological Association, 49 Monitor on Psychology, at 32.
716 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
postdates the enactment of Title VII. Nothing resembling
what
is now called gender dysphoria appeared in either
DSM–I (1952) or DSM–II (1968). It was not until 1980 that
the APA, in DSM–III, recognized two main psychiatric diag-
noses related to this condition, “Gender Identity Disorder
of Childhood” and “Transsexualism” in adolescents and
adults.
32
DSM–III, at 261–266.
The frst widely publicized sex reassignment surgeries in
the United States were not performed until 1966,
33
and the
great majority of physicians surveyed in 1969 thought that
an individual who sought sex reassignment surgery was
either “ `severely neurotic' ” or “ `psychotic.' ”
34
It defes belief to suggest that the public meaning of dis-
crimination because of sex in 1964 encompassed discrimina-
tion on the basis of a concept that was essentially unknown
to the public at that time.
D
1
The Court's main excuse for entirely ignoring the social
context in which Title VII was enacted is that the meaning
of Title VII's prohibition of discrimination because of sex is
clear, and therefore it simply does not matter whether people
in 1964 were “smart enough to realize” what its language
means. Hively, 853 F. 3d, at 357 (Posner, J., concurring).
According to the Court, an argument that looks to the
societal norms of those times represents an impermis-
sible attempt to displace the statutory language. Ante, at
675–676.
The Court's argument rests on a false premise. As al-
ready explained at length, the text of Title VII does not pro-
32
See Drescher, supra, at 112.
33
Buckley, A Changing of Sex by Surgery Begun at Johns Hopkins, N. Y.
Times, Nov. 21, 1966, p. 1, col. 8; see also J. Meyerowitz, How Sex Changed
218–220 (2002).
34
Drescher, supra, at 112 (quoting Green, Attitudes Toward Transsexu-
alism and Sex-Reassignment Procedures, in Transsexualism and Sex Re-
assignment 241–242 (R. Green & J. Money eds. 1969)).
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as: 590 U. S. 644 (2020)
717
Alito, J., dissenting
hibit discrimination because of sexual orientation or gender
identity
. And what the public thought about those issues in
1964 is relevant and important, not because it provides a
ground for departing from the statutory text, but because
it helps to explain what the text was understood to mean
when adopted.
In arguing that we must put out of our minds what we
know about the time when Title VII was enacted, the Court
relies on Justice Scalia's opinion for the Court in Oncale v.
Sundowner Offshore Services, Inc., 523 U. S. 75 (1998). But
Oncale is nothing like these cases, and no one should be
taken in by the majority's effort to enlist Justice Scalia in its
updating project.
The Court's unanimous decision in Oncale was thoroughly
unremarkable. The Court held that a male employee who
alleged that he had been sexually harassed at work by other
men stated a claim under Title VII. Although the impetus
for Title VII's prohibition of sex discrimination was to pro-
tect women, anybody reading its terms would immediately
appreciate that it applies equally to both sexes, and by the
time Oncale reached the Court, our precedent already estab-
lished that sexual harassment may constitute sex discrimina-
tion within the meaning of Title VII. See Meritor Savings
Bank, FSB v. Vinson, 477 U. S. 57 (1986). Given these
premises, syllogistic reasoning dictated the holding.
What today's decision latches onto are Oncale's comments
about whether “ `male-on-male sexual harassment' ” was on
Congress's mind when it enacted Title VII. Ante, at 678
(quoting 523 U. S., at 79). The Court in Oncale observed
that this specifc type of behavior “was assuredly not the
principal evil Congress was concerned with when it enacted
Title VII,” but it found that immaterial because “statutory
prohibitions often go beyond the principal evil to cover rea-
sonably comparable evils, and it is ultimately the provisions
of our laws rather than the principal concerns of our legisla-
tors by which we are governed.” Id., at 79 (emphasis
added).
718 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
It takes considerable audacity to read these comments as
committi
ng the Court to a position on deep philosophical
questions about the meaning of language and their implica-
tions for the interpretation of legal rules. These comments
are better understood as stating mundane and uncontrover-
sial truths. Who would argue that a statute applies only
to the “principal evils” and not lesser evils that fall within
the plain scope of its terms? Would even the most ardent
“purposivists” and fans of legislative history contend that
congressional intent is restricted to Congress's “principal
concerns”?
Properly understood, Oncale does not provide the slight-
est support for what the Court has done today. For one
thing, it would be a wild understatement to say that discrim-
ination because of sexual orientation and transgender status
was not the “principal evil” on Congress's mind in 1964.
Whether we like to admit it now or not, in the thinking of
Congress and the public at that time, such discrimination
would not have been evil at all.
But the more important difference between these cases
and Oncale is that here the interpretation that the Court
adopts does not fall within the ordinary meaning of the stat-
utory text as it would have been understood in 1964. To
decide for the defendants in Oncale, it would have been nec-
essary to carve out an exception to the statutory text.
Here, no such surgery is at issue. Even if we totally disre-
gard the societal norms of 1964, the text of Title VII does
not support the Court's holding. And the reasoning of On-
cale does not preclude or counsel against our taking those
norms into account. They are relevant, not for the purpose
of creating an exception to the terms of the statute, but for
the purpose of better appreciating how those terms would
have been understood at the time.
2
The Court argues that two other decisions––Phillips v.
Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam),
Cite
as: 590 U. S. 644 (2020)
719
Alito, J., dissenting
and Los Angeles Dept. of Water and Power v. Manhart,
435
U. S. 702 (1978)––buttress its decision, but those cases
merely held that Title VII prohibits employer conduct that
plainly constitutes discrimination because of biological sex.
In Philips, the employer treated women with young children
less favorably than men with young children. In Manhart,
the employer required women to make larger pension contri-
butions than men. It is hard to see how these holdings as-
sist the Court.
The Court extracts three “lessons” from Phillips, Man-
hart, and Oncale, but none sheds any light on the question
before us. The frst lesson is that “it's irrelevant what an
employer might call its discriminatory practice, how others
might label it, or what else might motivate it.” Ante, at 664.
This lesson is obviously true but proves nothing. As to the
label attached to a practice, has anyone ever thought that
the application of a law to a person's conduct depends on
how it is labeled? Could a bank robber escape conviction
by saying he was engaged in asset enhancement? So if an
employer discriminates because of sex, the employer is liable
no matter what it calls its conduct, but if the employer's con-
duct is not sex discrimination, the statute does not apply.
Thus, this lesson simply takes us back to the question
whether discrimination because of sexual orientation or gen-
der identity is a form of discrimination because of biological
sex. For reasons already discussed, see Part I–A, supra, it
is not.
It likewise proves nothing of relevance here to note that
an employer cannot escape liability by showing that discrimi-
nation on a prohibited ground was not its sole motivation.
So long as a prohibited ground was a motivating factor, the
existence of other motivating factors does not defeat liability.
The Court makes much of the argument that “[i]n Phillips,
the employer could have accurately spoken of its policy as
one based on `motherhood.' ” Ante, at 664; see also ante, at
667. But motherhood, by defnition, is a condition that can
be experienced only by women, so a policy that distinguishes
720 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
between motherhood and parenthood is necessarily a policy
that
draws a sex-based distinction. There was sex discrimi-
nation in Phillips, because women with children were
treated disadvantageously compared to men with children.
Lesson number two—“the plaintiff 's sex need not be the
sole or primary cause of the employer's adverse action,”
ante, at 665—is similarly unhelpful. The standard of causa-
tion in these cases is whether sex is necessarily a “motivat-
ing factor” when an employer discriminates on the basis of
sexual orientation or gender identity. 42 U. S. C. § 2000e–
2(m). But the essential question—whether discrimination
because of sexual orientation or gender identity constitutes
sex discrimination—would be the same no matter what cau-
sation standard applied. The Court's extensive discussion
of causation standards is so much smoke.
Lesson number three––“an employer cannot escape liabil-
ity by demonstrating that it treats males and females compa-
rably as groups,” ante, at 665, is also irrelevant. There is
no dispute that discrimination against an individual em-
ployee based on that person's sex cannot be justifed on the
ground that the employer's treatment of the average em-
ployee of that sex is at least as favorable as its treatment of
the average employee of the opposite sex. Nor does it mat-
ter if an employer discriminates against only a subset of men
or women, where the same subset of the opposite sex is
treated differently, as in Phillips. That is not the issue
here. An employer who discriminates equally on the basis
of sexual orientation or gender identity applies the same cri-
terion to every affected individual regardless of sex. See
Part I–A, supra.
III
A
Because the opinion of the Court fies a textualist fag, I
have taken pains to show that it cannot be defended on tex-
tualist grounds. But even if the Court's textualist argu-
ment were stronger, that would not explain today's decision.
Cite
as: 590 U. S. 644 (2020)
721
Alito, J., dissenting
Many Justices of this Court, both past and present, have not
espoused
or practiced a method of statutory interpretation
that is limited to the analysis of statutory text. Instead,
when there is ambiguity in the terms of a statute, they have
found it appropriate to look to other evidence of “congres-
sional intent,” including legislative history.
So, why in these cases are congressional intent and the
legislative history of Title VII totally ignored? Any assess-
ment of congressional intent or legislative history seriously
undermines the Court's interpretation.
B
As the Court explained in General Elec. Co. v. Gilbert,
429 U. S. 125, 143 (1976), the legislative history of Title VII's
prohibition of sex discrimination is brief, but it is neverthe-
less revealing. The prohibition of sex discrimination was
“added to Title VII at the last minute on the foor of the
House of Representatives,” Meritor Savings Bank, 477
U. S., at 63, by Representative Howard Smith, the Chairman
of the Rules Committee. See 110 Cong. Rec. 2577 (1964).
Representative Smith had been an ardent opponent of the
civil rights bill, and it has been suggested that he added the
prohibition against discrimination on the basis of “sex” as a
poison pill. See, e. g., Ulane v. Eastern Airlines, Inc., 742
F. 2d 1081, 1085 (CA7 1984). On this theory, Representative
Smith thought that prohibiting employment discrimination
against women would be unacceptable to Members who
might have otherwise voted in favor of the bill and that the
addition of this prohibition might bring about the bill's de-
feat.
35
But if Representative Smith had been looking for a
poison pill, prohibiting discrimination on the basis of sexual
orientation or gender identity would have been far more po-
tent. However, neither Representative Smith nor any other
35
See Osterman, Origins of a Myth: Why Courts, Scholars, and the Pub-
lic Think Title VII's Ban on Sex Discrimination Was an Accident, 20 Yale
J. L. & Feminism 409, 409–410 (2009).
722 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
Member said one word about the possibility that the prohibi-
ti
on of sex discrimination might have that meaning. In-
stead, all the debate concerned discrimination on the basis
of biological sex.
36
See 110 Cong. Rec. 2577–2584.
Representative Smith's motivations are contested, 883
F. 3d, at 139–140 (Lynch, J., dissenting), but whatever they
were, the meaning of the adoption of the prohibition of sex
discrimination is clear. It was no accident. It grew out of
“a long history of women's rights advocacy that had increas-
ingly been gaining mainstream recognition and acceptance,”
and it marked a landmark achievement in the path toward
fully equal rights for women. Id., at 140. “Discrimination
against gay women and men, by contrast, was not on the
table for public debate . . . [i]n those dark, pre-Stonewall
days.” Ibid.
For those who regard congressional intent as the touch-
stone of statutory interpretation, the message of Title VII's
legislative history cannot be missed.
C
Post-enactment events only clarify what was apparent
when Title VII was enacted. As noted, bills to add “sexual
orientation” to Title VII's list of prohibited grounds were
introduced in every Congress beginning in 1975, see supra,
at 683, and two such bills were before Congress in 1991
37
36
Recent scholarship has linked the adoption of the Smith Amendment
to the broader campaign for women's rights that was underway at the
time. E. g., Osterman, supra; Freeman, How Sex Got Into Title VII:
Persistent Opportunism as a Maker of Public Policy, 9 L. & Ineq. 163
(1991); Barzilay, Parenting Title VII: Rethinking the History of the Sex
Discrimination Provision, 28 Yale J. L. & Feminism 55 (2016); Gold, A Tale
of Two Amendments: The Reasons Congress Added Sex to Title VII and
Their Implication for the Issue of Comparable Worth, 19 Duquesne L.
Rev. 453 (1981). None of these studies has unearthed evidence that the
amendment was understood to apply to discrimination because of sexual
orientation or gender identity.
37
H. R. 1430, 102d Cong., 1st Sess., § 2(d) (as introduced in the House on
Mar. 13, 1991); S. 574, 102d Cong., 1st Sess., § 5 (as introduced in the Senate
on Mar. 6, 1991).
Cite
as: 590 U. S. 644 (2020)
723
Alito, J., dissenting
when it made major changes in Title VII. At that time, the
three
Courts of Appeals to reach the issue had held that
Title VII does not prohibit discrimination because of sexual
orientation,
38
two other Circuits had endorsed that interpre-
tation in dicta,
39
and no Court of Appeals had held otherwise.
Similarly, the three Circuits to address the application of
Title VII to transgender persons had all rejected the argu-
ment that it covered discrimination on this basis.
40
These
were also the positions of the EEOC.
41
In enacting substan-
tial changes to Title VII, the 1991 Congress abrogated nu-
merous judicial decisions with which it disagreed. If it also
disagreed with the decisions regarding sexual orientation
and transgender discrimination, it could have easily over-
ruled those as well, but it did not do so.
42
After 1991, six other Courts of Appeals reached the issue
of sexual orientation discrimination, and until 2017, every
single Court of Appeals decision understood Title VII's pro-
hibition of “discrimination because of sex” to mean discrimi-
nation because of biological sex. See, e. g., Higgins v. New
Balance Athletic Shoe, Inc., 194 F. 3d 252, 259 (CA1
1999); Simo n t o n v. Runyo n, 232 F. 3d 33, 36 (CA2
2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260
38
See Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70 (CA8
1989) (per curiam), cert. denied, 493 U. S. 1089 (1990); DeSantis v. Pacifc
Tel. & Tel. Co., 608 F. 2d 327, 329–330 (CA9 1979); Blum v. Gul f Oil Corp.,
597 F. 2d 936, 938 (CA5 1979) (per curiam).
39
Ruth v. Children's Med. Ctr., 1991 WL 151158, *5 (CA6, Aug. 8, 1991)
(per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084–1085
(CA7 1984), cert. denied, 471 U. S. 1017 (1985).
40
See Ulane, 742 F. 2d, at 1084–1085; Sommers v. Budget Mktg., Inc.,
667 F. 2d 748, 750 (CA8 1982) (per curiam); Holloway v. Arthur Ander-
sen & Co., 566 F. 2d 659, 661–663 (CA9 1977).
41
Dillon v. Frank, 1990 WL 1111074, *3–*4 (EEOC, Feb. 14, 1990); La-
Bate v. Postal Service, 1987 WL 774785, *2 (EEOC, Feb. 11, 1987).
42
In more recent legislation, when Congress has wanted to reach acts
committed because of sexual orientation or gender identity, it has referred
to those grounds by name. See, e. g., 18 U. S. C. § 249(a)(2)(A) ( hate
crimes) (enacted 2009); 34 U. S. C. § 12291(b)(13)(A) (certain federally
funded programs) (enacted 2013).
724 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
F. 3d 257, 261 (CA3 2001), cert. denied, 534 U. S. 1155
(2002);
Wrightson v. Pizza Hut of Am., Inc., 99 F. 3d 138,
143 (CA4 1996); Hamm v. Weyauwega Milk Products,
Inc., 332 F. 3d 1058, 1062 (CA7 2003); Medina v. Income Sup-
port Div., N. M., 413 F. 3d 1131, 1135 (CA10 2005); Evans v.
Georgia Regional Hospital, 850 F. 3d 1248, 1255 (CA11),
cert. denied, 583 U. S. 1044 (2017). Similarly, the other Cir-
cuit to formally address whether Title VII applies to claims
of discrimination based on transgender status had also re-
jected the argument, creating unanimous consensus prior to
the Sixth Circuit's decision below. See Etsitty v. Utah
Transit Authority, 502 F. 3d 1215, 1220–1221 (CA10 2007).
The Court observes that “[t]he people are entitled to rely
on the law as written, without fearing that courts might dis-
regard its plain terms,” ante, at 674, but it has no qualms
about disregarding over 50 years of uniform judicial inter-
pretation of Title VII's plain text. Rather, the Court makes
the jaw-dropping statement that its decision exemplifes “ju-
dicial humility.” Ante, at 681. Is it humble to maintain, not
only that Congress did not understand the terms it enacted
in 1964, but that all the Circuit Judges on all the pre-2017
cases could not see what the phrase discrimination “because
of sex” really means? If today's decision is humble, it is so-
bering to imagine what the Court might do if it decided to
be bold.
IV
What the Court has done today––interpreting discrimina-
tion because of “sex” to encompass discrimination because of
sexual orientation or gender identity––is virtually certain to
have far-reaching consequences. Over 100 federal statutes
prohibit discrimination because of sex. See Appendix C,
infra; e. g., 20 U. S. C. § 1681(a) (Title IX); 42 U. S. C. § 3631
(Fair Housing Act); 15 U. S. C. 1691(a)(1) (Equal Credit Op-
portunity Act). The briefs in these cases have called to our
attention the potential effects that the Court's reasoning
may have under some of these laws, but the Court waves
those considerations aside. As to Title VII itself, the Court
Cite
as: 590 U. S. 644 (2020)
725
Alito, J., dissenting
dismisses questions about “bathrooms, locker rooms, or any-
th
ing else of the kind.” Ante, at 681. And it declines to say
anything about other statutes whose terms mirror Title VII's.
The Court's brusque refusal to consider the consequences
of its reasoning is irresponsible. If the Court had allowed
the legislative process to take its course, Congress would
have had the opportunity to consider competing interests
and might have found a way of accommodating at least some
of them. In addition, Congress might have crafted special
rules for some of the relevant statutes. But by intervening
and proclaiming categorically that employment discrimina-
tion based on sexual orientation or gender identity is sim-
ply a form of discrimination because of sex, the Court
has greatly impeded—and perhaps effectively ended—any
chance of a bargained legislative resolution. Before issuing
today's radical decision, the Court should have given some
thought to where its decision would lead.
As the briefng in these cases has warned, the position
that the Court now adopts will threaten freedom of religion,
freedom of speech, and personal privacy and safety. No one
should think that the Court's decision represents an unal-
loyed victory for individual liberty.
I will briefy note some of the potential consequences of
the Court's decision, but I do not claim to provide a compre-
hensive survey or to suggest how any of these issues should
necessarily play out under the Court's reasoning.
43
“[B]athrooms, locker rooms, [and other things] of [that]
kind.” The Court may wish to avoid this subject, but it is
a matter of concern to many people who are reticent about
disrobing or using toilet facilities in the presence of individu-
als whom they regard as members of the opposite sex. For
some, this may simply be a question of modesty, but for oth-
ers, there is more at stake. For women who have been vic-
timized by sexual assault or abuse, the experience of seeing
43
Contrary to the implication in the Court's opinion, I do not label these
potential consequences “undesirable.” Ante, at 680. I mention them
only as possible implications of the Court's reasoning.
726 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
an unclothed person with the anatomy of a male in a confned
and
sensitive location such as a bathroom or locker room can
cause serious psychological harm.
44
Under the Court's decision, however, transgender persons
will be able to argue that they are entitled to use a bathroom
or locker room that is reserved for persons of the sex with
which they identify, and while the Court does not defne
what it means by a transgender person, the term may apply
to individuals who are “gender fuid,” that is, individuals
whose gender identity is mixed or changes over time.
45
Thus, a person who has not undertaken any physical transi-
tioning may claim the right to use the bathroom or locker
room assigned to the sex with which the individual identifes
at that particular time. The Court provides no clue why a
transgender person's claim to such bathroom or locker room
access might not succeed.
A similar issue has arisen under Title IX, which prohibits
sex discrimination by any elementary or secondary school
and any college or university that receives federal fnancial
assistance.
46
In 2016, a Department of Justice advisory
warned that barring a student from a bathroom assigned to
individuals of the gender with which the student identifes
constitutes unlawful sex discrimination,
47
and some lower
44
Brief for Defend My Privacy et al. as Amici Curiae 7–10.
45
See 1 Sadock, Comprehensive Textbook of Psychiatry, at 2063 (ex-
plaining that “gender is now often regarded as more fuid” and “[t]hus,
gender identity may be described as masculine, feminine, or somewhere
in between”).
46
Title IX makes it unlawful to discriminate on the basis of sex in educa-
tion: “No person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefts of, or be subjected to discrimi-
nation under any education program or activity receiving Federal fnancial
assistance.” 20 U. S. C. § 1681(a).
47
See Dept. of Justice & Dept. of Education, Dear Colleague Letter
on Transgender Students, May 13, 2016 (Dear Colleague Letter), https://
www2.ed.gov/about/offices/ list/ocr/ letters/colleague-201605-title-ix-
transgender.pdf.
Cite
as: 590 U. S. 644 (2020)
727
Alito, J., dissenting
court decisions have agreed. See Whitaker v. Kenosha Uni-
f
ed School Dist. No. 1 Bd. of Ed., 858 F. 3d 1034, 1049 (CA7
2017); G. G. v. Gloucester Cty. School Bd., 822 F. 3d 709, 715
(CA4 2016), vacated and remanded, 580 U. S. 1168 (2017);
Adams v. School Bd. of St. Johns Cty., 318 F. Supp. 3d 1293,
1325 (MD Fla. 2018); cf. Doe v. Boyertown Area School Dist.,
897 F. 3d 518, 533 (CA3 2018), cert. denied, 587 U. S. 1035
(2019).
Women's sports. Another issue that may come up under
both Title VII and Title IX is the right of a transgender
individual to participate on a sports team or in an athletic
competition previously reserved for members of one biologi-
cal sex.
48
This issue has already arisen under Title IX,
where it threatens to undermine one of that law's major
achievements, giving young women an equal opportunity to
participate in sports. The effect of the Court's reasoning
may be to force young women to compete against students
who have a very signifcant biological advantage, including
students who have the size and strength of a male but iden-
tify as female and students who are taking male hormones
in order to transition from female to male. See, e. g., Com-
plaint in Soule v. Connecticut Assn. of Schools, No. 3:20–cv–
00201 (D Conn., Apr. 17, 2020) (challenging Connecticut pol-
icy allowing transgender students to compete in girls' high
school sports); Complaint in Hecox v. Little, No. 1:20–cv–
00184 (D Idaho, Apr. 15, 2020) (challenging state law that
bars transgender students from participating in school sports
in accordance with gender identity). Students in these lat-
ter categories have found success in athletic competitions
reserved for females.
49
48
A regulation allows single-sex teams, 34 CFR § 106.41(b) (2019), but
the statute itself would of course take precedence.
49
“[S]ince 2017, two biological males [in Connecticut] have collectively
won 15 women's state championship titles (previously held by ten differ-
ent Connecticut girls) against biologically female track athletes.” Brief
728 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
The logic of the Court's decision could even affect profes-
si
onal sports. Under the Court's holding that Title VII pro-
hibits employment discrimination because of transgender
status, an athlete who has the physique of a man but identi-
fes as a woman could claim the right to play on a women's
professional sports team. The owners of the team might try
to claim that biological sex is a bona fde occupational quali-
fcation (BFOQ) under 42 U. S. C. § 2000e–2(e), but the BFOQ
exception has been read very narrowly. See Dothard v.
Rawlinson, 433 U. S. 321, 334 (1977).
Housing. The Court's decision may lead to Title IX cases
against any college that resists assigning students of the op-
posite biological sex as roommates. A provision of Title IX,
20 U. S. C. § 1686, allows schools to maintain “separate living
facilities for the different sexes,” but it may be argued that
a student's “sex” is the gender with which the student identi-
fes.
50
Similar claims may be brought under the Fair Hous-
ing Act. See 42 U. S. C. § 3604.
Employment by religious organizations. Briefs fled by
a wide range of religious groups––Christian, Jewish, and
for Independent Women's Forum et al. as Amici Curiae in No. 18–107,
pp. 14–15.
At the college level, a transgendered woman (biological male) switched
from competing on the men's Division II track team to the women's Divi-
sion II track team at Franklin Pierce University in New Hampshire after
taking a year of testosterone suppressants. While this student had
placed “eighth out of nine male athletes in the 400 meter hurdles the
year before, the student won the women's competition by over a second
and a half––a time that had garnered tenth place in the men's conference
meet just three years before.” Id., at 15.
A transgender male—i.e., a biological female who was in the process of
transitioning to male and actively taking testosterone injections––won the
Texas girls' state championship in high school wrestling in 2017. Babb,
Transgender Issue Hits Mat in Texas, Washington Post, Feb. 26, 2017,
p. A1, col. 1.
50
Indeed, the 2016 advisory letter issued by the Department of Justice
took the position that under Title IX schools “must allow transgender
students to access housing consistent with their gender identity.” Dear
Colleague Letter 4.
Cite
as: 590 U. S. 644 (2020)
729
Alito, J., dissenting
Musl i m— express deep concer n that the positi on now
adopted
by the Court “will trigger open confict with the
faith-based employment practices of numerous churches,
synagogues, mosques, and other religious institutions.”
51
They argue that “[r]eligious organizations need employees
who actually live the faith,”
52
and that compelling a religious
organization to employ individuals whose conduct fouts the
tenets of the organization's faith forces the group to commu-
nicate an objectionable message.
This problem is perhaps most acute when it comes to the
employment of teachers. A school's standards for its faculty
“communicate a particular way of life to its students,” and a
“violation by the faculty of those precepts” may undermine
the school's “moral teaching.”
53
Thus, if a religious school
teaches that sex outside marriage and sex reassignment pro-
cedures are immoral, the message may be lost if the school
employs a teacher who is in a same-sex relationship or has
undergone or is undergoing sex reassignment. Yet today's
decision may lead to Title VII claims by such teachers and
applicants for employment.
At least some teachers and applicants for teaching posi-
tions may be blocked from recovering on such claims by the
“ministerial exception” recognized in Hosanna-Tabor Evan-
gelical Lutheran Church and School v. EEOC, 565 U. S. 171
(2012). Two cases now pending before the Court present
the question whether teachers who provide religious instruc-
tion can be considered to be “ministers.”
54
But even if
teachers with those responsibilities qualify, what about other
very visible school employees who may not qualify for the
51
Brief for National Association of Evangelicals et al. as Amici Curiae
3; see also Brief for United States Conference of Catholic Bishops et al. as
Amici Curiae in No. 18–107, pp. 8–18.
52
Brief for National Association of Evangelicals et al. as Amici Curiae 7.
53
McConnell, Academic Freedom in Religious Colleges and Universities,
53 Law & Contemp. Prob. 303, 322 (1990).
54
See Our Lady of Guadalupe School v. Morrissey-Berru, No. 19–267;
St. James School v. Biel, No. 19–348.
730 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
ministerial exception? Provisions of Title VII provide ex-
empti
ons for certain religious organizations and schools
“with respect to the employment of individuals of a particu-
lar religion to perform work connected with the carrying on”
of the “activities” of the organization or school, 42 U. S. C.
§ 2000e–1(a); see also § 2000e–2(e)(2), but the scope of these
provisions is disputed, and as interpreted by some lower
courts, they provide only narrow protection.
55
Healthcare. Healthcare benefts may emerge as an in-
tense battleground under the Court's holding. Transgender
employees have brought suit under Title VII to challenge
employer-provided health insurance plans that do not cover
costly sex reassignment surgery.
56
Similar claims have been
brought under the Affordable Care Ac t (ACA), wh ich
broadly prohibits sex discrimination in the provision of
healthcare.
57
55
See, e. g., EEOC v. Kamehameha Schools/Bishop Estate, 990 F. 2d 458,
460 (CA9 1993); EEOC v. Fremont Christian School, 781 F. 2d 1362, 1365–
1367 (CA9 1986); Rayburn v. General Con ference of Seventh-day Advent-
ists, 772 F. 2d 1164, 1166 (CA4 1985); EEOC v. Mississippi College, 626
F. 2d 477, 484–486 (CA5 1980); see also Brief for United States Conference
of Catholic Bishops et al. as Amici Curiae in No. 18–107, at 30, n. 28
(discussing disputed scope). In addition, 42 U. S. C. § 2000e–2(e)(1) pro-
vides that religion may be a BFOQ, and allows religious schools to hire
religious employees, but as noted, the BFOQ exception has been read nar-
rowly. See supra this page.
56
See, e. g., Amended Complaint in Toomey v. Arizona, No. 4:19–cv–
00035 (D Ariz., Mar. 2, 2020). At least one District Court has already
held that a state health insurance policy that does not provide coverage
for sex reassignment surgery violates Title VII. Fletcher v. Alaska, 443
F. Supp. 3d 1024, 1030 (D Alaska 2020).
57
See, e. g., Complaint in Con forti v. St. Joseph's Healthcare System,
No. 2:17–cv–00050 (D NJ, Jan. 5, 2017) (transgender man claims discrimina-
tion under the ACA because a Catholic hospital refused to allow a surgeon
to perform a hysterectomy). And multiple District Courts have already
concluded that the ACA requires health insurance coverage for sex reas-
signment surgery and treatment. Kadel v. Folwell, 446 F. Supp. 3d 1, 19
(MDNC 2020) (allowing claimsof discrimination under ACA, Title IX, and
Equal Protection Clause); Tovar v. Essentia Health, 342 F. Supp. 3d 947,
Cite
as: 590 U. S. 644 (2020)
731
Alito, J., dissenting
Such claims present diffcult religious liberty issues be-
cause
some employers and healthcare providers have strong
religious objections to sex reassignment procedures, and
therefore requiring them to pay for or to perform these pro-
cedures will have a severe impact on their ability to honor
their deeply held religious beliefs.
Freedom of speech. The Court's decision may even affect
the way employers address their employees and the way
teachers and school offcials address students. Under estab-
lished English usage, two sets of sex-specifc singular per-
sonal pronouns are used to refer to someone in the third
person (he, him, and his for males; she, her, and hers for
females). But several different sets of gender-neutral pro-
nouns have now been created and are preferred by some in-
dividuals who do not identify as falling into either of the two
traditional categories.
58
Some jurisdictions, such as New
York City, have ordinances making the failure to use an indi-
952–954 (D Minn. 2018) (allowing ACA claim).
Section 1557 of the ACA, 42 U. S. C. § 18116, provides:
“Except as otherwise provided for in this title (or an amendment made
by this title), an individual shall not, on the ground prohibited under title
VI of the Civil Rights Act of 1964 (42 U. S. C. 2000d et seq.), title IX of
the Education Amendments of 1972 (20 U. S. C. 1681 et seq.), the Age
Discrimination Act of 1975 (42 U. S. C. 6101 et seq.), or section 794 of title
29, be excluded from participation in, be denied the benefts of, or be sub-
jected to discrimination under, any health program or activity, any part of
which is receiving Federal fnancial assistance, including credits, subsidies,
or contracts of insurance, or under any program or activity that is adminis-
tered by an Executive Agency or any entity established under this title
(or amendments). The enforcement mechanisms provided for and avail-
able under such title VI, title IX, section 794, or such Age Discrimination
Act shall apply for purposes of violations of this subsection.” (Footnote
omitted.)
58
See, e. g., University of Wisconsin Milwaukee Lesbian, Gay, Bisexual,
Transgender, Queer Plus (LGBTQ+) Resource Center, Gender Pronouns
(2020), https://uwm.edu/ lgbtrc/support/gender-pronouns/ (listing six new
categories of pronouns: (f )ae, (f )aer, (f )aers; e/ey, em, eir, eirs; per, pers;
ve, ver, vis; xe, xem, xyr, xyrs; ze/zie, hir, hirs).
732 BOSTOCK
v. CLAYTON COUNTY
Alito, J., dissenting
vidual's preferred pronoun a punishable offense,
59
and
some
colleges have similar rules.
60
After today's decision, plain-
tiffs may claim that the failure to use their preferred pro-
noun violates one of the federal laws prohibiting sex dis-
crimination. See Prescott v. Rady Children's Hospital San
Diego, 265 F. Supp. 3d 1090, 1098–1100 (SD Cal. 2017)
(hospital staff 's refusal to use preferred pronoun violates
ACA).
61
The Court's decision may also pressure employers to sup-
press any statements by employees expressing disapproval
of same-sex relationships and sex reassignment procedures.
Employers are already imposing such restrictions voluntar-
ily, and after today's decisions employers will fear that allow-
ing employees to express their religious views on these sub-
jects may give rise to Title VII harassment claims.
59
See 47 N. Y. C. R. R. § 2–06(a) (2020) (stating that a “deliberate refusal
to use an individual's self-identifed name, pronoun and gendered title” is
a violation of N. Y. C. Admin. Code § 8–107 “where the refusal is motivated
by the individual's gender”); see also N. Y. C. Admin. Code §§ 8–107(1), (4),
(5) (2020) (making it unlawful to discriminate on the basis of “gender” in
employment, housing, and public accommodations); cf. D. C. Municipal
Regs., tit. 4, § 801.1 (2020) (making it “unlawful . . . to discriminate . . . on
the basis of . . . actual or perceived gender identity or expression” in
“employment, housing, public accommodations, or educational institutions”
and further proscribing “engaging in verbal . . . harassment”).
60
See University of Minn., Equity and Access: Gender Identity, Gender
Expression, Names, and Pronouns, Administrative Policy (Dec. 11, 2019),
https://policy.umn.edu/operations/genderequity (“University members and
units are expected to use the names, gender identities, and pronouns speci-
fed to them by other University members, except as legally required”);
Meriwether v. Trustees of Shawnee State Univ., 2020 WL 704615, *1 (SD
Ohio, Feb. 12, 2020) (rejecting First Amendment challenge to university's
nondiscrimination policy brought by evangelical Christian professor who
was subjected to disciplinary actions for failing to use student's pre-
ferred pronouns).
61
Cf. Notice of Remova l i n V l aming v. West Po in t Scho o l Bo ard,
No. 3:19–cv–00773 (ED Va., Oct. 22, 2019) (contending that high school
teacher's fring for failure to use student's preferred pronouns was based
on nondiscrimination policy adopted pursuant to Title IX).
Cite
as: 590 U. S. 644 (2020)
733
Alito, J., dissenting
Constitutional claims. Finally, despite the important
di
fferences between the Fourteenth Amendment and Title
VII, the Court's decision may exert a gravitational pull in
constitutiona l cases. Under our precedents, the Equal
Protection Clause prohibits sex-based discrimination unless
a “heightened” standard of review is met. Sessions v.
Morales-Santana, 582 U. S. 47, 58 (2017); United States v.
Virginia, 518 U. S. 515, 532–534 (1996). By equating dis-
crimination because of sexual orientation or gender identity
with discrimination because of sex, the Court's decision will
be cited as a ground for subjecting all three forms of discrim-
ination to the same exacting standard of review.
Under this logic, today's decision may have effects that
extend well beyond the domain of federal antidiscrimination
statutes. This potential is illustrated by pending and recent
lower court cases in which transgender individuals have
challenged a variety of federal, state, and local laws and poli-
cies on constitutional grounds. See, e. g., Complaint in
Hecox, No. 1: 20–CV–00184 (state law prohibiting transgen-
der students from competing in school sports in accordance
with their gender identity); Second Amended Complaint in
Karnoski v. Trump, No. 2:17–cv–01297 (WD Wash., July 31,
2019) (military's ban on transgender members); Kadel v. Fol-
well, 446 F. Supp. 3d 1, 18 (MDNC 2020) (state health plan's
exclusion of coverage for sex reassignment procedures);
Complaint in Gore v. Lee, No. 3:19–cv–00328 (MD Tenn., Mar.
3, 2020) (change of gender on birth certifcates); Brief for
Appellee in Grimm v. Gloucester Cty. School Bd., No. 19–
1952 (CA4, Nov. 18, 2019) (transgender student forced to use
gender-neutral bathrooms at school); Complaint in Corbitt v.
Taylor, No. 2:18–cv–00091 (MD Ala., July 25, 2018) (change
of gender on driver's licenses); Whitaker, 858 F. 3d, at 1054
(school policy requiring students to use the bathroom that
corresponds to the sex on birth certifcate); Keohane v. Flor-
ida Dept. of Corrections Secretary, 952 F. 3d 1257, 1262–1265
(CA11 2020) (transgender prisoner denied hormone therapy
734 BOSTOCK
v. CLAYTON COUNTY
Appendix A to opinion of Alito, J.
and ability to dress and groom as a female); Edmo v. Cori-
zo
n, Inc., 935 F. 3d 757, 767 (CA9 2019) (transgender prisoner
requested sex reassignment surgery); cf. Glenn v. Brumby,
663 F. 3d 1312, 1320 (CA11 2011) (transgender individual
fred for gender non-conformity).
Although the Court does not want to think about the
consequences of its decision, we will not be able to avoid
those issues for long. The entire Federal Judiciary will be
mired for years in disputes about the reach of the Court's
reasoning.
***
The updating desire to which the Court succumbs no doubt
arises from humane and generous impulses. Today, many
Americans know individuals who are gay, lesbian, or trans-
gender and want them to be treated with the dignity, consid-
eration, and fairness that everyone deserves. But the au-
thority of this Court is limited to saying what the law is.
The Court itself recognizes this:
“The place to make new legislation . . . lies in Congress.
When it comes to statutory interpretation, our role is
limited to applying the law's demands as faithfully as we
can in the cases that come before us.” Ante, at 680–681.
It is easy to utter such words. If only the Court would
live by them.
I respectfully dissent.
APPENDIXES
A
Webster's New International Dictionary 2296 (2d ed. 1953) :
sex (se
̆
ks), n. [F. sexe, fr. L. sexus; prob. orig., division, and akin to
L. secare to cut. See section.] 1. One of the two divisions of
organisms formed on the distinction of male and female; males
or females collectively.
2. The sum of the peculiarities of structure and function that
distinguish a male from a female organism; the character of being
Cite
as: 590 U. S. 644 (2020)
735
Appendix A to opinion of Alito, J.
male or female, or of pertaining to the distinctive function of the
ma
le or female in reproduction. Conjugation, or fertilization
(union of germplasm of two individuals), a process evidently of
great but not readily explainable importance in the perpetuation
of most organisms, seems to be the function of differentiation of
sex, which occurs in nearly all organisms at least at some stage
in their life history. Sex is manifested in the conjugating cells
by the larger size, abundant food material, and immobility of the
female gamete (egg, egg cell, or ovum), and the small size and
the locomotive power of the male gamete (spermatozoon or sper-
matozoid), and in the adult organisms often by many structural,
physiological, and (in higher forms) psychological characters,
aside from the necessary modifcation of the reproductive appa-
ratus. Cf. hermaphrodite, 1. In botany the term sex is often
extended to the distinguishing peculiarities of staminate and pis-
tillate fowers, and hence in dioecious plants to the individuals
bearing them.
In many animals and plants the body and germ cells have been
shown to contain one or more chromosomes of a special kind
(called sex chromosomes; idiochromosomes; accessory chromo-
somes) in addition to the ordinary paired autosomes. These
special chromosomes serve to determine sex. In the simplest
case, the male germ cells are of two types, one with and one
without a single extra chromosome (X chromosome, or mono-
some). The egg cells in this case all possess an X chromosome,
and on fertilization by the two types of sperm, male and female
zygotes result, of respective constitution X, and XX. In many
other animals and plants (probably including man) the male or-
ganism produces two types of gametes, one possessing an X
chromosome, the other a Y chromosome, these being visibly dif-
ferent members of a pair of chromosomes present in the diploid
state. In this case also, the female organism is XX, the eggs X,
and the zygotes respectively male (XY) and female (XX). In
another type of sex determination, as in certain moths and possi-
bly in the fowl, the female produces two kinds of eggs, the male
only one kind of sperm. Each type of egg contains one member
of a pair of differentiated chromosomes, called respectively Z
chromosomes and W chromosomes, while all the sperm cells
contain a Z chromosome. In fertilization, union of a Z with a
736 BOSTOCK
v. CLAYTON COUNTY
Appendix A to opinion of Alito, J.
W gives rise to a female, while union of two Z chromosomes
produces
a male. Cf. secondary sex character.
3. a The sphere of behavior dominated by the relations between
male and female. b Psychoanalysis. By extension, the whole
sphere of behavior related even indirectly to the sexual functions
and embracing all affectionate and pleasure-seeking conduct.
4. Phenomena of sexual instincts and their manifestations.
5. Sect;—a confused use.
Syn.—Sex, gender. Sex refers to physiological distinctions;
gender, to distinctions in grammar.
—the sex. The female sex; women, in general.
sex, adj. Based on or appealing to sex.
sex, v. t. To determine the sex of, as skeletal remains.
Webster's Third New International Dictionary 2081 (1966):
1
sex \`seks\ n –ES often attrib [ME, fr. L sexus; prob. akin to
L secare to cut–more at saw] 1: one of the two divisions
of organic esp. human beings respectively designated male
or female <a member of the opposite ~> 2: the sum of
the morphological, physiological, and behavioral peculiari-
ties of living beings that subserves biparental reproduc-
tion with its concomitant genetic segregation and recombi-
nation which underlie most evolutionary change, that in
its typical dichotomous occurrence is usu. genetically con-
trolled and associated with special sex chromosomes, and
that is typically manifested as maleness and femaleness
with one or the other of these being present in most higher
animals though both may occur in the same individual in
many plants and some invertebrates and though no such
distinction can be made in many lower forms (as some
fungi, protozoans, and possibly bacteria and viruses)
either because males and females are replaced by mating
types or because the participants in sexual reproduction
are indistinguishable—compare heterothallic, homo-
thallic; fertilization, meiosis, mendel’s law; free-
martin, hermaphrodite, intersex 3: the sphere of in-
terpersonal behavior esp. between male and female most
directly associated with, leading up to, substituting for, or
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as: 590 U. S. 644 (2020)
737
Appendix A to opinion of Alito, J.
resulting from genital union <agree that the Christian's
attitude
toward ~ should not be considered apart from
love, marriage, family—M. M. Forney> 4: the phenom-
ena of sexual instincts and their manifestations <with his
customary combination of philosophy, insight, good will to-
ward the world, and entertaining interest in ~—Allen
Drury> <studying and assembling what modern scientists
have discovered about ~—Time>; specif: sexual inter-
course <an old law imposing death for ~ outside mar-
riage—William Empson>
2
sex \“\ vt –ed/–ing/–es 1: to determine the sex of (an or-
ganic being) <it is diffcult to ~ the animals at a distance—
E. A. Hooton>—compare autosexing 2 a: to increase the
sexual appeal or attraction of—usu. used with up <titles
must be ~ed up to attract 56 million customers—Time> b:
to arouse the sexual instincts or desires of—usu. used with
up <watching you ~ing up that bar kitten—Oakley Hall>
9 Oxford English Dictionary 577–578 (1933):
Sex (seks), sb. Also 6–7 sexe, (6 seex, 7 pl. sexe, 8 poss.
sexe's). [ad. L. sexus (u-stem), whence also F. sexe (12th c.),
Sp., Pg. sexo, It. sesso. Latin had also a form secus neut. (in-
declinable).]
1. Either of the two divisions of organic beings distin-
guished as male and female respectively; the males or the
females (of a species, etc., esp. of the human race) viewed
collectively.
1382 Wyclif Gen. vi. 19 Of alle thingis hauynge sowle of ony fehs, two thow shalt brynge
into the ark, that maal sex and femaal lyuen with thee. 1532 More Confut. Tindale II. 152, I
had as leue he bare them both a bare cheryte, as wyth the frayle feminyne sexe fall to far in
loue. 1559 Alymer Harborowe E 4 b, Neither of them debarred the heires female .. as though
it had ben .. vnnatural for that sexe to gouern. 1576 Gascoigne Philomene xcviii, I speake
against my sex. a 1586 Sidney Arcadia II. (1912) 158 The sexe of womankind of all other is
most bound to have regardfull eie to mens judgements. 1600 Nashe Summer's Last Will F 3
b, A woman they imagine her to be, Because that sexe keepes nothing close they heare. 1615
Crooke Body of Man 274 If wee respect the .. conformation of both the Sexes, the Male is
sooner perfected .. in the wombe. 1634 Sir T. Herbert Trav. 19 Both sexe goe naked. 1667
738 BOSTOCK
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Appendix A to opinion of Alito, J.
Milton P. L. IX, 822 To add what wants In Femal Sex. 1671—Samson 774 It was a weakness
In
me, but incident to all our sex. 1679 Dryden Troilus & Cr. I. ii, A strange dissembling sex
we women are. 1711 Addison Spect. No. 10 ¶ 6 Their Amusements .. are more adapted to the
Sex than to the Species. 1730 Swift Let. to Mrs. Whiteway 28 Dec., You have neither the
scrawl nor the spelling of your sex. 1742 Gray Propertius II. 73 She .. Condemns her fckle
Sexe's fond Mistake. 1763 G. Williams in Jesse Selwyn & Contemp. (1843) I. 265 It would
astonish you to see the mixture of sexes at this place. 1780 Bentham Princ. Legisl. VI. § 35
The sensibility of the female sex appears .. to be greater than that of the male. 1814 Scott Ld.
of Isles VI. iii, Her sex's dress regain'd. 1836 Thirlwall Greece xi. II. 51 Solon also made
regulations for the government of the other sex. 1846 Ecclesiologist Feb. 41 The propriety
and necessity of dividing the sexes during the publick offces of the Church. 1848 Thackeray
Van. Fair xxv, She was by no means so far superior to her sex as to be above jealousy. 1865
Dickens Mut. Fr. II. i, It was a school for both sexes. 1886 Mabel Collins Prettiest Woman
ii, Zadwiga had not yet given any serious attention to the other sex.
b. collect. followed by plural verb. rare.
1768 Goldsm. Good. n. Man IV. (Globe) 632/2 Our sex are like poor tradesmen. 1839 Malcom
Trav. (1840) 40/I Neither sex tattoo any part of their bodies.
c. The fair(er), gentle(r), soft(er), weak(er) sex; the devout sex;
the second sex; † the woman sex: the female sex, women. The †
better, sterner sex: the male sex, men.
[1583 Stubbes Anat. Abus. E vij b, Ye magnifcency & liberalitie of that gentle sex. 1613
Purchas Pilgrimage (1614) 38 Strong Sampson and wise Solomon are witnesses, that the
strong men are slaine by this weaker sexe.]
1641 Brome Jovial Crew III. (1652) H 4, I am bound by a strong vow to kisse all of the
woman sex I meet this morning. 1648 J. Beaumont Psyche XIV. I, The softer sex, attending
Him And his still-growing woes. 1665 Sir T. Herbert Trav. (1677) 22 Whiles the better sex
seek prey abroad, the women (therein like themselves) keep home and spin. 1665 Boyle Occas.
Ref. v. ix. 176 Persons of the fairer Sex. a 1700 Evelyn Diary 12 Nov. an. 1644, The Pillar ..
at which the devout sex are always rubbing their chaplets. 1701 Stanhope St. Aug. Medit. I.
xxxv. (1704) 82, I may .. not suffer my self to be outdone by the weaker Sex. 1732 [see FAIR
a. I b]. 1753 Hogarth Anal. Beauty x. 65 An elegant degree of plumpness peculiar to the skin
of the softer sex. 1820 Byron Juan IV. cviii, Benign Ceruleans of the second sex! Who adver-
tise new poems by your looks. Murray's Hand-bk. N. Germ. 430 It is much frequented by the
fair sex. 1894 C. D. Tyler in Geog. Jrnl. III. 479 They are beardless, and usually wear a shock
of unkempt hair, which is somewhat fner in the gentler sex.
¶d. Used occas. with extended notion. The third sex: eunuchs.
Also sarcastically (see quot. 1873).
1820 Byron Juan IV. lxxxvi, From all the Pope makes yearly, `twould perplex To fnd three
perfect pipes of the third sex. Ibid. V. xxvi, A black old neutral personage Of the third sex
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739
Appendix A to opinion of Alito, J.
stept up. [1873 Ld. Houghton Monogr. 280 Sydney Smith .. often spoke with much bitterness
of
the growing belief in three Sexes of Humanity—Men, Women, and Clergymen.]
e. The sex: the female sex. [F. le sexe.] Now rare.
1589 Puttenham Eng. Poesie III. xix. (Arb.) 235 As he that had tolde a long tale before
certaine noble women, of a matter somewhat in honour touching the Sex. 1608 D. T[uvill]
Ess. Pol. & Mor. 101 b, Not yet weighing with himselfe, the weaknesse and imbecillitie of the
sex. 1631 Massinger Emperor East I. ii, I am called The Squire of Dames, or Servant of the
Sex. 1697 Vanbrugh Prov. Wife II. ii, He has a strange penchant to grow fond of me, in spite
of his aversion to the sex. 1760-2 Goldsm. Cit. W. xcix, The men of Asia behave with more
deference to the sex than you seem to imagine. 1792 A. Young Trav. France I. 220 The sex of
Venice are undoubtedly of a distinguished beauty. 1823 Byron Juan XIII. lxxix, We give the
sex the pas. 1863 R. F. Burton W. Africa I. 22 Going `up stairs', as the sex says, at 5 a.m. on
the day after arrival, I cast the frst glance at Funchal.
f. Without the, in predicative quasi-adj. use=feminine. rare.
a 1700 Dryden Cymon & Iph. 368 She hugg 'd th' Offender, and forgave th' Offence, Sex
to the last!
2. Quality in respect of being male or female.
a. With regard to persons or animals.
1526 Pilgr. Perf. (W. de. W. 1531) 282 b, Ye bee, whiche neuer gendreth with ony make of his
kynde, nor yet hath ony distinct sex. 1577 T. Kendall Flowers of Epigr. 71 b, If by corps
supposd may be her seex, then sure a virgin she. 1616 T. Scott Philomythie I. (ed. 2) A 3 Euen
as Hares change shape and sex, some say Once euery yeare. 1658 Sir T. Browne Hydriot. iii.
18 A critical view of bones makes a good distinction of sexes. a 1665 Digby Chym. Secrets
(1682) II. 225 Persons of all Ages and Sexes. 1667 Milton P. L. I. 424 For Spirits when they
please can either Sex assume, or both. 1710-11 Swift Jrnl. to Stella 7 Mar., I fnd I was
mistaken in the sex, `tis a boy. 1757 Smollett Reprisal IV. v, As for me, my sex protects me.
1825 Scott Betrothed xiii, I am but a poor and neglected woman, feeble both from sex and
age. 1841 Elphinstone Hist. India I. 349 When persons of different sexes walk together, the
woman always follows the man. 1882 Tension-Woods Fish N. S. Wales 116 Oysters are of
distinct sexes.
b. with regard to plants (see Female a. 2, Male a. 2).
1567 Maplet Gr. Forest 28 Some seeme to haue both sexes and kindes: as the Oke, the Lawrell
and such others. 1631 Widdowes Nat. Philos. (ed. 2) 49 There be sexes of hearbes .. namely, the
Male or Female. 1720 P. Blair Bot. Ess. iv. 237 These being very evident Proofs of a necessity of
two Sexes in Plants as well as in Animals. 1790 Smellie Philos. Nat. Hist. I. 245 There is not a
notion more generally adopted, that that vegetables have the distinction of sexes. 1848 Lindley
Introd. Bot. (ed. 4) II. 80 Change of Sex under the infuence of external causes.
3. The distinction between male and female in general.
In recent use often with more explicit notion: The sum of
740 BOSTOCK
v. CLAYTON COUNTY
Appendix A to opinion of Alito, J.
those differences in the structure and function of the repro-
duc
tive organs on the ground of which beings are distin-
guished as male and female, and of the other physiological
differences consequent on these; the class of phenomena with
which these differences are concerned.
Organs of sex: the reproductive organs in sexed animals or plants.
a 1631 Donne Songs & Sonn., The Printrose Poems 1912 I. 61 Should she Be more then
woman, she would get above All thought of sexe, and think to move My heart to study her, and
not to love. a 1643 Cartwright Siedge III. vi, My Soul's As Male as yours; there's no Sex in
the mind. 1748 Melmoth Fitzosborne Lett. lxii. (1749) II. 119 There may be a kind of sex in
the very soul. 1751 Harris Hermes Wks. (1841) 129 Besides number, another characteristic,
visible in substances, is that of sex. 1878 Gladstone Prim. Homer 68 Athenè .. has nothing
of sex except the gender, nothing of the woman except the form. 1887 K. Pearson Eth. Free-
thought xv. (1888) 429 What is the true type of social (moral) action in matters of sex? 1895
Crackanthorpe in 19th Cent. Apr. 607 (art.) Sex in modern literature. Ibid. 614 The writers
and readers who have strenuously refused to allow to sex its place in creative art. 1912 H. G.
Wells Marriage ii. § 6. 72 The young need .. to be told .. all we know of three fundamental
things; the frst of which is God, .. and the third Sex.
¶ 4. Used, by confusion, in senses of Sect (q. v. I, 4 b, 7,
and cf. I d note).
1575-85 Abp. Sandys Serm. xx. 358 So are all sexes and sorts of people called vpon. 1583
Melbancke Philotimus L iij b, Whether thinkest thou better sporte & more absurd, to see
an Asse play on an harpe contrary to his sex, or heare [etc.]. 1586 J. Hooker Hist. Irel. 180/2
in Holinshed, The whole sex of the Oconhours. 1586 T. B. La Primaud. Fr. Acad. I. 359 O
detestable furie, not to be found in most cruell beasts, which spare the blood of their sexe. a
1704 T Brown Dial. Dead, Friendship Wks. 1711 IV. 56 We have had enough of these Chris-
tians, and sure there can be no worse among the other Sex of Mankind [i. e. Jews and Turks]?
1707 Atterbury Large Vind. Doctr. 47 Much less can I imagine, why a Jewish Sex (whether
of Pharisees or Saducees) should be represented, as [etc.].
5. attrib. and Comb., as sex-distinction, function, etc.;
sex-abusing, transforming adjs.; sex-cell, a reproductive cell,
with either male or female function; a sperm-cell or an egg-
cell.
1642 H. More Song of Soul I. III. lxxi, Mad-making waters, sex trans-forming springs. 1781
Cowper Expost. 415 Sin, that in old time Brought fre from heav'n, the sex-abusing crime.
1876 Hardy Ethelberta xxxvii, You cannot have celebrity and sex-privilege both. 1887 Jrnl.
Educ. No. 210. 29 If this examination craze is to prevail, and the sex-abolitionists are to have
their way. 1889 Geddes & Thomson Evol. Sex 91 Very commonly the sex-cells originate in
the ectoderm and ripen there. 1894 H. Drummond Ascent of Man 317 The sex-distinction
slowly gathers defnition. 1897 J. Hutchinson in Arch. Surg. VIII. 230 Loss of Sex Function.
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741
Appendix A to opinion of Alito, J.
Sex (seks), v. [f. Sex sb.] trans. To determine the sex of,
by
anatomical examination; to label as male or female.
1884 Gurney Diurnal Birds Prey 173 The specimen is not sexed, neither is the sex noted
on the drawing. 1888 A. Newton in Zoologist Ser. 111. XII. 101 The .. barbarous phrase of
`collecting a specimen' and then of `sexing ' it.
Concise Oxford Dictionary of Current English 1164
(5th ed. 1964):
se ̆ x, n. Being male or female or hermaphrodite (what is its ~?; ~
does not matter; without distinction of age or ~), whence ~'less
a., ~'le
̇
ssness n., ~'
Y
2
a., immoderately concerned with ~; males
or females collectively (all ranks & both ~es; the fair, gentle,
softer, weaker, ~, & joc. the ~, women; the sterner ~, men; is the
fairest of her ~); (attrib.) arising from difference, or conscious-
ness, of ~ (~ antagonism, ~ instinct, ~ urge); ~ appeal, attrac-
tiveness arising from difference of ~. [f. L sexus –u
̄
s; partly
thr. F]
Random House Dictionary of the English Language 1307
(1966):
sex (seks), n. 1. The fact or character of being either male or
female: persons of different sex. 2. either of the two groups of
persons exhibiting this character: the stronger sex; the gentle
sex. 3. the sum of the structural and functional differences by
which the male and female are distinguished, or the phenomena
or behavior dependent on these differences. 4. the instinct or
attraction drawing one sex toward another, or its manifestation
in life and conduct. 5. coitus. 6. to have sex, Informal. to
engage in sexual intercourse. –v.t. 7. to ascertain the sex of,
esp. of newly hatched chicks. 8. sex it up, Slang. to neck pas-
sionately: They were really sexing it up last night. 9. sex up,
Informal. a. to arouse sexually: She certainly knows how to sex
up the men. b. to increase the appeal of; to make more interest-
ing, attractive, or exciting: We've decided to sex up the movie
with some battle scenes. [ME < L sex(us), akin to secus, deriv.
of secre to cut, divide; see SECTION]
American Heritage Dictionary 1187 (1969):
sex (se
̆
ks) n. 1. a. The property or quality by which organisms
are classi fied accordi ng to their reproduc tive func ti ons.
742 BOSTOCK
v. CLAYTON COUNTY
Appendix B to opinion of Alito, J.
b. Either of two divisions, designated male and female, of this
classi
fcation. 2. Males or females collectively. 3. The condi-
tion or character of being male or female; the physiological, func-
tional, and psychological differences that distinguish the male
and the female. 4. The sexual urge or instinct as it manifests
itself in behavior. 5. Sexual intercourse. –tr.v. sexed, sexing,
sexes. To determine the sex of (young chickens). [Middle
English, from Old French sexe, from Latin sexus†.]
B
Webster's Third New International Dictionary 2081 (2002):
1
sex \`seks\ n –es often attrib [ME, fr. L sexus; prob. akin to L
secare to cut—more at saw] 1: one of the two divisions of or-
ganic esp. human beings respectively designated male or female
<a member of the opposite ~> 2: the sum of the morphological,
physiological, and behavioral peculiarities of living beings that
subserves biparental reproduction with its concomitant genetic
segregation and recombination which underlie most evolution-
ary change, that in its typical dichotomous occurrence is usu.
genetically controlled and associated with special sex chromo-
somes, and that is typically manifested as maleness and female-
ness with one or the other of these being present in most higher
animals though both may occur in the same individual in many
plants and some invertebrates and though no such distinction
can be made in many lower forms (as some fungi, protozoans,
and possibly bacteria and viruses) either because males and fe-
males are replaced by mating types or because the participants
in sexual reproduction are indistinguishable—compare hetero-
thallic, homothallic; fertilization, meiosis, mendel’s
law; freemartin, hermaphrodite, intersex 3: the sphere
of interpersonal behavior esp. between male and female most
directly associated with, leading up to, substituting for, or re-
sulting from genital union <agree that the Christian's attitude
toward ~ should not be considered apart from love, marriage,
family—M. M. Forney> 4: the phenomena of sexual instincts
and their manifestations <with his customary combination of
philosophy, insight, good will toward the world, and entertaining
interest in ~—Allen Drury> <studying and assembling what
Cite
as: 590 U. S. 644 (2020)
743
Appendix B to opinion of Alito, J.
modern scientists have discovered about ~—Time>; specif: sex-
u
al intercourse <an old law imposing death for ~ outside
marriage—William Empson>
2
sex \“\ vt –ed/–ing/–es 1: to determine the sex of (an organic
being) <it is diffcult to ~ the animals at a distance—E. A. Hoo-
ton>—compare autosexing 2 a: to increase the sexual appeal
or attraction of—usu. used with up <titles must be ~ed up to
attract 56 million customers—Time> b: to arouse the sexual
instincts or desires of—usu. used with up <watching you ~ing
up that bar kitten—Oakley Hall>
Random House Webster's Unabridged Dictionary 1754 (2d
ed. 2001):
sex (seks), n. 1. either the male or female division of a species, esp.
as differentiated with reference to the reproductive functions.
2. the sum of the structural and functional differences by which
the male and female are distinguished, or the phenomena or be-
havior dependent on these differences. 3. the instinct or at-
traction drawing one sex toward another, or its manifestation in
life and conduct. 4. coitus. 5. genitalia. 6. to have sex, to
engage in sexual intercourse. – v.t. 7. to ascertain the sex of,
esp. of newly-hatched chicks. 8. sex up, Informal. a. to arouse
sexually: The only intent of that show was to sex up the audi-
ence. b. to increase the appeal of; to make more interesting, at-
tractive, or exciting: We've decided to sex up the movie with
some battle scenes. [1350–1400; ME < L Sexus, perh. akin to
seca
̄
re to divide (see section)]
American Heritage Dictionary 1605 (5th ed. 2011):
sex (seks) n. 1a. Sexual activity, especially sexual intercourse:
hasn't had sex in months. b. The sexual urge or instinct as it mani-
fests itself in behavior: motivated by sex. 2a. Either of the two
divisions, designated female and male, by which most organisms
are classifed on the basis of their reproductive organs and func-
tions: How do you determine the sex of a lobster? b. The fact or
condition of existing in these two divisions, especially the collection
of characteristics that distinguish female and male: the evolution
of sex in plants; a study that takes sex into account. See Usage
Note at gender. 3. Females or males considered as a group: dormi-
744 BOSTOCK
v. CLAYTON COUNTY
Appendix C to opinion of Alito, J.
tories that house only one sex. 4. One's identity as either female
or
male. 5. The genitals.
tr.v. sexed, sex-ing, sex-es 1. To deter-
mine the sex of (an organism). 2. Slang a. To arouse sexually. Often
used with up. b. To increase the appeal or attractiveness of. Often
used with up [Middle English < Latin sexus.]
C
Statutes Prohibiting Sex Discrimination
• 2 U. S. C. § 658a(2) (Congressional Budget and Fiscal Op-
erations; Federal Mandates)
• 2 U. S. C. § 1311(a)(1) (Congressional Accountability; Ex-
tension of Rights and Protections)
• 2 U. S. C. § 1503(2) (Unfunded Mandates Reform)
• 3 U. S. C. § 411(a)(1) (Presidential Offces; Employment
Discrimination)
• 5 U. S. C. § 2301(b)(2) (Merit System Principles)
• 5 U. S. C. § 2302(b)(1) (Prohibited Personnel Practices)
• 5 U. S. C. § 7103(a)(4)(A) (Labor-Management Relations;
Defnitions)
• 5 U. S. C. § 7116(b)(4) (Labor-Management Relations;
Unfair Labor Practices)
• 5 U. S. C. § 7201(b) (Antidiscrimination Policy; Minority
Recruitment Program)
• 5 U. S. C. § 7204( b) (Antidiscr i mi nati on; Other
Prohibitions)
• 6 U. S. C. § 488f(b) (Secure Handling of Ammonium Ni-
trate; Protection From Civil Liability)
• 7 U. S. C. § 2020(c)(1) (Supplemental Nutrition Assist-
ance Program)
• 8 U. S. C. § 1152(a)(1)(A) (Immigration; Numerical Limi-
tations on Individual Foreign States)
• 8 U. S. C. § 1187(c)(6) (Visa Waiver Program for Certain
Visitors)
• 8 U. S. C. § 1522(a)(5) (Authorization for Programs for
Domestic Resettlement of and Assistance to Refugees)
Cite
as: 590 U. S. 644 (2020)
745
Appendix C to opinion of Alito, J.
• 10 U. S. C. § 932(b)(4) (Uniform Code of Military Justice;
Ar
ticle 132 Retaliation)
• 10 U. S. C. § 1034( j)(3) (Protected Communications; Pro-
hibition of Retaliatory Personnel Actions)
• 12 U. S. C. § 302 (Directors of Federal Reserve Banks;
Number of Members; Classes)
• 12 U. S. C. § 1735f–5(a) (Prohibition Against Discrimina-
ti on on Account of Sex i n Extensi on of Mor tgage
Assistance)
• 12 U. S. C. § 1821(d)(13)(E)(iv) (Federal Deposit Insur-
ance Corporation; Insurance Funds)
• 12 U. S. C. § 1823(d)(3)(D)(iv) (Federal Deposit Insurance
Corporation; Corporation Moneys)
• 12 U. S. C. § 2277a–10c(b)(13)(E)(iv) (Farm Credit Sys-
tem Insurance Corporation; Corporation as Conservator
or Receiver; Certain Other Powers)
• 12 U. S. C. § 3015(a)(4) (National Consumer Cooperative
Bank; Eligibility of Cooperatives)
• 12 U. S. C. §§ 3106a(1)(B) and (2)(B) (Foreign Bank Par-
ticipation in Domestic Markets)
• 12 U. S. C. § 4545(1) (Fair Housing)
• 12 U. S. C. § 5390(a)(9)(E)(v) (Wall Street Reform and
Consumer Protec ti on; Powers and Duties of the
Corporation)
• 15 U. S. C. § 631(h) (Aid to Small Business)
• 15 U. S. C. § 633(b)(1) (Small Business Administration)
• 15 U. S. C. § 719 (Alaska Natural Gas Transportation;
Civil Rights)
• 15 U. S. C. § 775 (Federal Energy Administration; Sex
Discrimination; Enforcement; Other Legal Remedies)
• 15 U. S. C. § 1691(a)(1) (Equal Credit Opportunity Act)
• 15 U. S. C. § 1691d(a) (Equal Credit Opportunity Act)
• 15 U. S. C. § 3151(a) (Full Employment and Balanced
Growth; Nondiscrimination)
746 BOSTOCK
v. CLAYTON COUNTY
Appendix C to opinion of Alito, J.
• 18 U. S. C. § 246 (Deprivation of Relief Benefts)
•
18 U. S. C. § 3593(f ) (Specia l Hear ing To Deter mi ne
Whether a Sentence of Death Is Justifed)
• 20 U. S. C. § 1011(a) (Higher Education Resources and
Student Assistance; Antidiscrimination)
• 20 U. S. C. § 1011f(h)(5)(D) (Disclosures of Foreign Gifts)
• 20 U. S. C. § 1066c(d) (Historically Black College and Uni-
versity Capital Financing; Limitations on Federal Insur-
ance Bonds Issued by Designated Bonding Authority)
• 20 U. S. C. § 1071(a)(2) (Federal Family Education Loan
Program)
• 20 U. S. C. § 1078(c)(2)(F) (Federal Payments To Reduce
Student Interest Costs)
• 20 U. S. C. § 1087–1(e) (Federal Family Education Loan
Program; Special Allowances)
• 20 U. S. C. § 1087– 2(e) (Student Loan Marketi ng
Association)
• 20 U. S. C. § 1087–4 (Discrimination in Secondary Mar-
kets Prohibited)
• 20 U. S. C. § 1087tt(c) (Discretion of Student Financial
Aid Administrators)
• 20 U. S. C. § 1231e(b)(2) (Education Programs; Use of
Funds Withheld)
• 20 U. S. C. § 1681 (Title IX of the Education Amend-
ments of 1972)
• 20 U. S. C. § 1701(a)(1) (Equal Educational Opportunities;
Congressional Declaration of Policy)
• 20 U. S. C. § 1702(a)(1) (Equal Educational Opportunities;
Congressional Findings)
• 20 U. S. C. § 1703 (Denial of Equal Educational Opportu-
nity Prohibited)
• 20 U. S. C. § 1705 (Assignment on Neighborhood Basis
Not a Denial of Equal Educational Opportunity)
Cite
as: 590 U. S. 644 (2020)
747
Appendix C to opinion of Alito, J.
• 20 U. S. C. § 1715 (District Lines)
•
20 U. S. C. § 1720 (Equal Educational Opportunities;
Defnitions)
• 20 U. S. C. § 1756 (Remedies With Respect to School Dis-
trict Lines)
• 20 U. S. C. § 2396 (Career and Technical Education; Fed-
eral Laws Guaranteeing Civil Rights)
• 20 U. S. C. § 3401(2) (Department of Education; Congres-
sional Findings)
• 20 U. S. C. § 7231d(b)(2)(C) (Magnet Schools Assistance;
Applications and Requirements)
• 20 U. S. C. § 7914 (Strengthening and Improvement of
Elementary and Secondary Schools; Civil Rights)
• 22 U. S. C. § 262p–4n (Foreign Relations and Intercourse;
Equal Employment Opportunities)
• 22 U. S. C. § 2304(a)(1) (Human Rights and Security
Assistance)
• 22 U. S. C. § 2314(g) (Furnishing of Defense Articles or
Related Training or Other Defense Service on Grant
Basis)
• 22 U. S. C. § 2426 (D iscr i mi nati on Agai nst United
States Personnel)
• 22 U. S. C. § 2504(a) (Peace Corps Volunteers)
• 22 U. S. C. § 2661a (Foreig n Contrac ts or Arrange-
ments; Discrimination)
• 22 U. S. C. § 2755 (Discrimination Prohibited if Based on
Race, Religion, National Origin, or Sex)
• 22 U. S. C. § 3901(b)(2) (Foreign Service; Congressional
Findings and Objectives)
• 22 U. S. C. § 3905( b)(1) (Foreig n Service; Personnel
Actions)
• 22 U. S. C. § 4102(11)(A) (Foreign Service; Defnitions)
• 22 U. S. C. § 4115(b)(4) (Foreign Service; Unfair Labor
Practices)
748 BOSTOCK
v. CLAYTON COUNTY
Appendix C to opinion of Alito, J.
• 22 U. S. C. § 6401(a)(3) (International Religious Freedom;
Fi
ndings; Policy)
• 22 U. S. C. § 8303(c)(2) (Office of Volunteers for
Prosperity)
• 2 3 U. S . C . § 1 4 0 ( a ) ( Fe d e r a l - A i d H i g h w a y s ;
Nondiscrimination)
• 23 U. S. C. § 324 (Highways; Prohibition of Discrimina-
tion on the Basis of Sex)
• 25 U. S. C. § 4223(d)(2) (Housing Assistance for Native
Hawaiians)
• 26 U. S. C. § 7471(a)(6)(A) (Tax Court; Employees)
• 28 U. S. C. § 994(d) (Duties of the United States Sentenc-
ing Commission)
• 28 U. S. C. § 1862 (Tr ia l by Jury; D iscr i mi nati on
Prohibited)
• 28 U. S. C. § 1867(e) (Trial by Jury; Challenging Compli-
ance With Selection Procedures)
• 29 U. S. C. § 206(d)(1) (Equal Pay Act of 1963)
• 29 U. S. C. §§ 2601(a)(6) and (b)(4) (Family and Medical
Leave; Findings and Purposes)
• 29 U. S. C. § 2651(a) (Family and Medical Leave; Effect
on Other Laws)
• 29 U. S. C. § 3248 (Workforce Development Opportuni-
ties; Nondiscrimination)
• 30 U. S. C. § 1222(c) (Research Funds to Institutes)
• 31 U. S. C. § 732(f ) (Government Accountability Offce;
Personnel Management System)
• 31 U. S. C. § 6711 (Federa l Payments; Proh ibited
Discrimination)
• 31 U. S. C. § 6720(a)(8) (Federal Payments; Defnitions,
Application, and Administration)
• 34 U. S. C. § 10228(c) (Prohibition of Federal Control
Over State and Local Criminal Justice Agencies; Prohi-
bition of Discrimination)
Cite
as: 590 U. S. 644 (2020)
749
Appendix C to opinion of Alito, J.
• 34 U. S. C. § 11133(a)(16) (Juvenile Justice and Delin-
quency
Prevention; State Plans)
• 34 U. S. C. § 12161(g) (Community Schools Youth Serv-
ices and Supervision Grant Program)
• 34 U. S. C. § 12361 (Violent Crime Control and Law
Enforcement; Civil Rights for Women)
• 34 U. S. C. § 20110(e) (Crime Victims Fund; Administra-
tion Provisions)
• 34 U. S. C. § 50104(a) (Emergency Federal Law Enforce-
ment Assistance)
• 36 U. S. C. § 20204(b) (Air Force Sergeants Association;
Membership)
• 36 U. S. C. § 20205(c) (Air Force Sergeants Association;
Governing Body)
• 36 U. S. C. § 21003(a)(4) (American GI Forum of the
United States; Purposes)
• 36 U. S. C. § 21004(b) (American GI Forum of the United
States; Membership)
• 36 U. S. C. § 21005(c) (American GI Forum of the United
States; Governing Body)
• 36 U. S. C. § 21704A (The American Legion)
• 36 U. S. C. § 22703(c) (Amvets; Membership)
• 36 U. S. C. § 22704(d) (Amvets; Governing Body)
• 36 U. S. C. § 60104(b) (82nd Airborne Division Associa-
tion, Incorporated; Membership)
• 36 U. S. C. § 60105(c) (82nd Airborne Division Associa-
tion, Incorporated; Governing Body)
• 36 U. S. C. § 70104( b) (Fleet Reserve Associati on;
Membership)
• 36 U. S. C. § 70105(c) (Fleet Reserve Association; Gov-
erning Body)
• 36 U. S. C. § 140704(b) (Military Order of the World
Wars; Membership)
750 BOSTOCK
v. CLAYTON COUNTY
Appendix C to opinion of Alito, J.
• 36 U. S. C. § 140705(c) (Military Order of the World Wars;
Gover
ning Body)
• 36 U. S. C. § 154704(b) (Non Commissioned Offcers Asso-
ciation of the United States of America, Incorporated;
Membership)
• 36 U. S. C. § 154705(c) (Non Commissioned Offcers Asso-
ciation of the United States of America, Incorporated;
Governing Body)
• 36 U. S. C. § 190304(b) (Retired Enlisted Association, In-
corporated; Membership)
• 36 U. S. C. § 190305(c) (Retired Enlisted Association, In-
corporated; Governing Body)
• 36 U. S. C. § 220522(a)(8) and (9) (United States Olympic
Committee; Eligibility Requirements)
• 36 U. S. C. § 230504(b) (Vietnam Veterans of America,
Inc.; Membership)
• 36 U. S. C. § 230505(c) (Vietnam Veterans of America,
Inc.; Governing Body)
• 40 U. S. C. § 122(a) (Federal Property and Administrative
Services; Prohibition on Sex Discrimination)
• 40 U. S. C. § 14702 (Appalachian Regional Development;
Nondiscrimination)
• 42 U. S. C. § 213(f ) (Military Benefts)
• 42 U. S. C. § 290cc–33(a) (Projects for Assistance in Tran-
sition From Homelessness)
• 42 U. S. C. § 290ff–1(e)(2)(C) (Children With Ser ious
Emotional Disturbances; Requirements With Respect to
Carrying Out Purpose of Grants)
• 42 U. S. C. § 295m (Public Health Service; Prohibition
Against Discrimination on Basis of Sex)
• 42 U. S. C. § 296g (Public Health Service; Prohibition
Against Discrimination by Schools on Basis of Sex)
• 42 U. S. C. § 300w–7(a)(2) (Preventive Health and Health
Services Block Grants; Nondiscrimination Provisions)
Cite
as: 590 U. S. 644 (2020)
751
Appendix C to opinion of Alito, J.
• 42 U. S. C. § 300x–57(a)(2) (Block Grants Regarding Men-
t
al Health and Substance Abuse; Nondiscrimination)
• 42 U. S. C. § 603(a)(5)(I)(iii) (Block Grants to States for
Temporary Assistance for Needy Families)
• 42 U. S. C. § 708(a)(2) (Maternal and Child Health Serv-
ices Block Grant; Nondiscrimination Provisions)
• 42 U. S. C. § 1975a(a) (Duties of Civil Rights Commission)
• 42 U. S. C. § 2000c(b) (Civil Rights; Public Education;
Defnitions)
• 42 U. S. C. § 2000c–6(a)(2) (Civil Rights; Public Educa-
tion; Civil Actions by the Attorney General)
• 42 U. S. C. § 2000e–2 (Equal Employment Opportunities;
Unlawful Employment Practices)
• 42 U. S. C. § 2000e–3(b) (Equal Employment Opportuni-
ties; Other Unlawful Employment Practices)
• 42 U. S. C. § 2000e –16(a) (Employment by Federa l
Government)
• 42 U. S. C. § 2000e–16a(b) (Government Employee Rights
Act of 1991)
• 42 U. S. C. § 2000e–16b(a)(1) (Discriminatory Practices
Prohibited)
• 42 U. S. C. § 2000h–2 (Intervention by Attorney General;
Denial of Equal Protection on Account of Race, Color,
Religion, Sex or National Origin)
• 42 U. S. C. § 3123 (Discrimination on Basis of Sex Prohib-
ited in Federally Assisted Programs)
• 42 U. S. C. § 3604 (Fair Housing Act; Discrimination in
the Sale or Rental of Housing and Other Prohibited
Practices)
• 42 U. S. C. § 3605 (Fair Housing Act; Discrimination in
Residential Real Estate-Related Transactions)
• 42 U. S. C. § 3606 (Fair Housing Act; Discrimination in
the Provision of Brokerage Services)
752 BOSTOCK
v. CLAYTON COUNTY
Appendix C to opinion of Alito, J.
• 42 U. S. C. § 3631 (Fair Housi ng Ac t; Vi olati ons;
P
enalties)
• 42 U. S. C. § 4701 (Intergovernmental Personnel Pro-
gram; Congressional Findings and Declaration of Policy)
• 42 U. S. C. § 5057(a)(1) (Domestic Volunteer Services;
Nondiscrimination Provisions)
• 42 U. S. C. § 5151(a) (Nondiscr iminati on in Disaster
Assistance)
• 42 U. S. C. § 5309(a) (Community Development; Nondis-
crimination in Programs and Activities)
• 42 U. S. C. § 5891 (Development of Energy Sources; Sex
Discrimination Prohibited)
• 42 U. S. C. § 6709 (Public Works Employment; Sex Dis-
crimination; Prohibition; Enforcement)
• 42 U. S. C. § 6727(a)(1) (Publ ic Works Employment;
Nondiscrimination)
• 42 U. S. C. § 6870(a) (Weatherization Assistance for Low-
Income Persons)
• 42 U. S. C. § 8625(a) (Low-Income Home Energy Assist-
ance; Nondiscrimination Provisions)
• 42 U. S. C. § 9821 (Community Economic Development;
Nondiscrimination Provisions)
• 42 U. S. C. § 9849 (Head Start Programs; Nondiscrimina-
tion Provisions)
• 42 U. S. C. § 9918(c)(1) (Community Services Block Grant
Program; Limitations on Use of Funds)
• 42 U. S. C. § 10406(c)(2)(B)(i) (Family Violence Preven-
tion and Services; Formula Grants to States)
• 42 U. S. C. § 11504(b) (Enterprise Zone Development;
Waiver of Modifcation of Housing and Community De-
velopment Rules in Enterprise Zones)
• 42 U. S. C. § 12635(a)(1) (National and Community Serv-
ice State Grant Program; Nondiscrimination)
Cite
as: 590 U. S. 644 (2020)
753
Appendix C to opinion of Alito, J.
• 42 U. S. C. § 12832 (Investment in Affordable Housing;
N
ondiscrimination)
• 43 U. S. C. § 1747(10) (Loans to States and Political Sub-
divisions; Discrimination Prohibited)
• 43 U. S. C. § 1863 (Outer Continental Shelf Resource
Management; Unlawfu l Employment Prac tices;
Regulations)
• 47 U. S. C. § 151 (Federal Communications Commission)
• 47 U. S. C. § 398(b)(1) (Public Broadcasting; Equal Oppor-
tunity Employment)
• 47 U. S. C. §§ 554(b) and (c) (Cable Communications;
Equal Employment Opportunity)
• 47 U. S. C. § 555a(c) (Cable Communications; Limitation
of Franchising Authority Liability)
• 48 U. S. C. § 1542(a) (Virgin Islands; Voting Franchise;
Discrimination Prohibited)
• 48 U. S. C. § 1708 (Discrimination Prohibited in Rights of
Access to, and Benefts From, Conveyed Lands)
• 49 U. S. C. § 306(b) (Duties of the Secretary of Transpor-
tation; Prohibited Discrimination)
• 4 9 U. S . C . § 5 3 3 2 ( b) ( P u b l i c T r a n s p o r t a t i o n ;
Nondiscrimination)
• 49 U. S. C. § 40127 (Air Commerce and Safety; Prohibi-
tions on Discrimination)
• 4 9 U. S . C . § 4 7 1 2 3 ( a ) ( A i r p o r t I m p r o v e m e n t ;
Nondiscrimination)
• 50 U. S. C. § 3809(b)(3) (Selective Service System)
• 50 U. S. C. § 4842(a)(1)(B) (Anti-Boycott Act of 2018)
754 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
D
Cite
as: 590 U. S. 644 (2020)
755
Appendix D to opinion of Alito, J.
756 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
757
Appendix D to opinion of Alito, J.
758 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
759
Appendix D to opinion of Alito, J.
760 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
761
Appendix D to opinion of Alito, J.
762 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
763
Appendix D to opinion of Alito, J.
764 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
765
Appendix D to opinion of Alito, J.
766 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
767
Appendix D to opinion of Alito, J.
768 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
769
Appendix D to opinion of Alito, J.
770 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
771
Appendix D to opinion of Alito, J.
772 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
773
Appendix D to opinion of Alito, J.
774 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
775
Appendix D to opinion of Alito, J.
776 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
777
Appendix D to opinion of Alito, J.
778 BOSTOCK
v. CLAYTON COUNTY
Appendix D to opinion of Alito, J.
Cite
as: 590 U. S. 644 (2020)
779
Appendix D to opinion of Alito, J.
780 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
Justice Kavanaugh, dissenting.
Like
many cases in this Court, this case boils down to one
fundamental question: Who decides? Title VII of the Civil
Rights Act of 1964 prohibits employment discrimination “be-
cause of ” an individual's “race, color, religion, sex, or national
origin.” The question here is whether Title VII should be
expanded to prohibit employment discrimination because of
sexual orientation. Under the Constitution's separation of
powers, the responsibility to amend Title VII belongs to
Congress and the President in the legislative process, not to
this Court.
The political branches are well aware of this issue. In
2007, the U. S. House of Representatives voted 235 to 184 to
prohibit employment discrimination on the basis of sexual
orientation. In 2013, the U. S. Senate voted 64 to 32 in favor
of a similar ban. In 2019, the House again voted 236 to 173
to outlaw employment discrimination on the basis of sexual
orientation. Although both the House and Senate have
voted at different times to prohibit sexual orientation dis-
crimination, the two Houses have not yet come together with
the President to enact a bill into law.
The policy arguments for amending Title VII are very
weighty. The Court has previously stated, and I fully agree,
that gay and lesbian Americans “cannot be treated as social
outcasts or as inferior in dignity and worth.” Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 584 U. S.
617, 631 (2018).
But we are judges, not Members of Congress. And in Al-
exander Hamilton's words, federal judges exercise “neither
Force nor Will, but merely judgment.” The Federalist
No. 78, p. 523 (J. Cooke ed. 1961). Under the Constitution's
separation of powers, our role as judges is to interpret and
follow the law as written, regardless of whether we like the
result. Cf. Texas v. Johnson, 491 U. S. 397, 420–421 (1989)
(Kennedy, J., concurring). Our role is not to make or amend
Cite
as: 590 U. S. 644 (2020)
781
Kavanaugh, J., dissenting
the law. As written, Title VII does not prohibit employ-
ment
discrimination because of sexual orientation.
1
I
Title VII makes it unlawful for employers to discriminate
because of “race, color, religion, sex, or national origin.” 42
U. S. C. § 2000e–2(a)(1).
2
As enacted in 1964, Title VII did
not prohibit other forms of employment discrimination, such
as age discrimination, disability discrimination, or sexual ori-
entation discrimination.
Over time, Congress has enacted new employment dis-
crimination laws. In 1967, Congress passed and President
Johnson signed the Age Discrimination in Employment Act.
81 Stat. 602. In 1973, Congress passed and President Nixon
signed the Rehabilitation Act, which in substance prohibited
1
Although this opinion does not separately analyze discrimination on
the basis of gender identity, this opinion's legal analysis of discrimination
on the basis of sexual orientation would apply in much the same way to
discrimination on the basis of gender identity.
2
In full, the statute provides:
“It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individu-
al's race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for em-
ployment in any way which would deprive or tend to deprive any individ-
ual of employment opportunities or otherwise adversely affect his status
as an employee, because of such individual's race, color, religion, sex, or
national origin.” 42 U. S. C. § 2000e–2(a) (emphasis added).
As the Court today recognizes, Title VII contains an important exemp-
tion for religious organizations. § 2000e–1(a); see also § 2000e–2(e). The
First Amendment also safeguards the employment decisions of religious
employers. See Hosanna-Tabor Ev angel ical Lu theran Church and
School v. EEOC, 565 U. S. 171, 188–195 (2012). So too, the Religious
Freedom Restoration Act of 1993 exempts employers from federal laws
that substantially burden the exercise of religion, subject to limited excep-
tions. § 2000bb–1.
782 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
disability discrimination against federal and certain other
employees.
87 Stat. 355. In 1990, Congress passed and
President George H. W. Bush signed the comprehensive
Americans with Disabilities Act. 104 Stat. 327.
To prohibit age discrimination and disability discrimina-
tion, this Court did not unilaterally rewrite or update the
law. Rather, Congress and the President enacted new leg-
islation, as prescribed by the Constitution's separation of
powers.
For several decades, Congress has considered numerous
bills to prohibit employment discrimination based on sexual
orientation. But as noted above, although Congress has
come close, it has not yet shouldered a bill over the legisla-
tive fnish line.
In the face of the unsuccessful legislative efforts (so far)
to prohibit sexual orientation discrimination, judges may not
rewrite the law simply because of their own policy views.
Judges may not update the law merely because they think
that Congress does not have the votes or the fortitude.
Judges may not predictively amend the law just because they
believe that Congress is likely to do it soon anyway.
If judges could rewrite laws based on their own policy
views, or based on their own assessments of likely future
legislative action, the critical distinction between legislative
authority and judicial authority that undergirds the Consti-
tution's separation of powers would collapse, thereby threat-
ening the impartial rule of law and individual liberty. As
James Madison stated: “Were the power of judging joined
with the legislative, the life and liberty of the subject would
be exposed to arbitrary controul, for the judge would then
be the legislator.” The Federalist No. 47, at 326 (citing
Montesquieu). If judges could, for example, rewrite or up-
date securities laws or healthcare laws or gun laws or en-
vironmental laws simply based on their own policy views,
the Judiciary would become a democratically illegitimate
super-legislature—unelected, and hijacking the important
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783
Kavanaugh, J., dissenting
policy decisions reserved by the Constitution to the people's
elec
ted representatives.
Because judges interpret the law as written, not as they
might wish it were written, the frst 10 U. S. Courts of Ap-
peals to consider whether Title VII prohibits sexual orienta-
tion discrimination all said no. Some 30 federal judges con-
sidered the question. All 30 judges said no, based on the
text of the statute. 30 out of 30.
But in the last few years, a new theory has emerged. To
end-run the bedrock separation-of-powers principle that
courts may not unilaterally rewrite statutes, the plaintiffs
here (and, recently, two Courts of Appeals) have advanced a
novel and creative argument. They contend that discrimi-
nation “because of sexual orientation” and discrimination
“because of sex” are actually not separate categories of dis-
crimination after all. Instead, the theory goes, discrimina-
tion because of sexual orientation always qualifes as dis-
crimination because of sex: When a gay man is fred because
he is gay, he is fred because he is attracted to men, even
though a similarly situated woman would not be fred just
because she is attracted to men. According to this theory,
it follows that the man has been fred, at least as a literal
matter, because of his sex.
Under this literalist approach, sexual orientation discrimi-
nation automatically qualifes as sex discrimination, and Title
VII's prohibition against sex discrimination therefore also
prohibits sexual orientation discrimination—and actually has
done so since 1964, unbeknownst to everyone. Surprisingly,
the Court today buys into this approach. Ante, at 659–662.
For the sake of argument, I will assume that fring some-
one because of their sexual orientation may, as a very literal
matter, entail making a distinction based on sex. But to
prevail in this case with their literalist approach, the plain-
tiffs must also establish one of two other points. The plain-
tiffs must establish that courts, when interpreting a statute,
adhere to literal meaning rather than ordinary meaning. Or
784 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
alternatively, the plaintiffs must establish that the ordinary
meani
ng of “discriminate because of sex”—not just the literal
meaning—encompasses sexual orientation discrimination.
The plaintiffs fall short on both counts.
First, courts must follow ordinary meaning, not literal
meaning. And courts must adhere to the ordinary meaning
of phrases, not just the meaning of the words in a phrase.
There is no serious debate about the foundational interpre-
tive principle that courts adhere to ordinary meaning, not
literal meaning, when interpreting statutes. As Justice
Scalia explained, “the good textualist is not a literalist.” A.
Scalia, A Matter of Interpretation 24 (1997). Or as Profes-
sor Eskridge stated: The “prime directive in statutory inter-
pretation is to apply the meaning that a reasonable reader
would derive from the text of the law,” so that “for hard
cases as well as easy ones, the ordinary meaning (or the
`everyday meaning ' or the `commonsense' reading) of the rel-
evant statutory text is the anchor for statutory interpreta-
tion.” W. Eskridge, Interpreting Law 33, 34–35 (2016)
(footnote omitted). Or as Professor Manning put it, proper
statutory interpretation asks “how a reasonable person, con-
versant with the relevant social and linguistic conventions,
would read the text in context. This approach recognizes
that the literal or dictionary defnitions of words will often
fail to account for settled nuances or background conventions
that qualify the literal meaning of language and, in particu-
lar, of legal language.” Manning, The Absurdity Doctrine,
116 Harv. L. Rev. 2387, 2392–2393 (2003). Or as Professor
Nelson wrote: No “mainstream judge is interested solely in
the literal defnitions of a statute's words.” Nelson, What
Is Textualism?, 91 Va. L. Rev. 347, 376 (2005). The ordinary
meaning that counts is the ordinary public meaning at the
time of enactment—although in this case, that temporal prin-
ciple matters little because the ordinary meaning of “discrim-
inate because of sex” was the same in 1964 as it is now.
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785
Kavanaugh, J., dissenting
Judges adhere to ordinary meaning for two main reasons:
r
ule of law and democratic accountability. A society gov-
erned by the rule of law must have laws that are known and
understandable to the citizenry. And judicial adherence to
ordinary meaning facilitates the democratic accountability of
America's elected representatives for the laws they enact.
Citizens and legislators must be able to ascertain the law by
reading the words of the statute. Both the rule of law and
democratic accountability badly suffer when a court adopts
a hidden or obscure interpretation of the law, and not its
ordinary meaning.
Consider a simple example of how ordinary meaning dif-
fers from literal meaning. A statutory ban on “vehicles in
the park” would literally encompass a baby stroller. But no
good judge would interpret the statute that way because the
word “vehicle,” in its ordinary meaning, does not encompass
baby strollers.
The ordinary meaning principle is longstanding and well
settled. Time and again, this Court has rejected literalism
in favor of ordinary meaning. Take a few examples:
• The Court recognized that beans may be seeds “in the
language of botany or natural history,” but concluded
that beans are not seeds “in commerce” or “in common
parlance.” Robertson v. Salomon, 130 U. S. 412, 414
(1889).
• The Court explained that tomatoes are literally “the
fruit of a vine,” but “in the common language of the
people,” tomatoes are vegetables. Nix v. Hedden, 149
U. S. 304, 307 (1893).
• The Court stated that the statutory term “vehicle” does
not cover an aircraft: “No doubt etymologically it is pos-
sible to use the word to signify a conveyance working
on land, water or air . . . . But in everyday speech `vehi-
cle' calls up the picture of a thing moving on land.” Mc-
Boyle v. United States, 283 U. S. 25, 26 (1931).
786 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
• The Court pointed out that “this Court's interpretation
of
the three-judge-court statutes has frequently devi-
ated from the path of literalism.” Gonzalez v. Auto-
matic Employees Credit Union, 419 U. S. 90, 96 (1974).
• The Court refused a reading of “mineral deposits” that
would include water, even if “water is a `mineral,' in the
broadest sense of that word,” because it would bring
about a “major . . . alteration in established legal rela-
tionships based on nothing more than an overly literal
reading of a statute, without any regard for its context
or history.” Andrus v. Charlestone Stone Products Co.,
436 U. S. 604, 610, 616 (1978).
• The Court declined to interpret “facilitating ” a drug dis-
tribution crime in a way that would cover purchasing
drugs, because the “literal sweep of `facilitate' sits
uncomfortably with common usage. ” Abuelhawa v.
United States, 556 U. S. 816, 820 (2009).
• The Court rebuffed a literal reading of “personnel rules”
that would encompass any rules that personnel must fol-
low (as opposed to human resources rules about person-
nel), and stated that no one “using ordinary language
would describe” personnel rules “in this manner.” Mil-
ner v. Department of Navy, 562 U. S. 562, 578 (2011).
• The Court explained that, when construing statutory
phrases such as “arising from,” it avoids “uncritical liter-
alism leading to results that no sensible person could
have i ntended. ” Jenn ings v. Rodr i guez, 583 U. S.
281, 293–294 (2018) (plurality opinion) (internal quota-
tion marks omitted).
Those cases exemplify a deeply rooted principle: When
there is a divide between the literal meaning and the ordi-
nary meaning, courts must follow the ordinary meaning.
Next is a critical point of emphasis in this case. The dif-
ference between literal and ordinary meaning becomes es-
pecially important when—as in this case—judges consider
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787
Kavanaugh, J., dissenting
phrases in statutes. (Recall that the shorthand version of
the
phrase at issue here is “discriminate because of sex.”)
3
Courts must heed the ordinary meaning of the phrase as a
whole, not just the meaning of the words in the phrase.
That is because a phrase may have a more precise or confned
meaning than the literal meaning of the individual words in
the phrase. Examples abound. An “American fag ” could
literally encompass a fag made in America, but in common
parlance it denotes the Stars and Stripes. A “three-
pointer” could literally include a feld goal in football, but in
common parlance, it is a shot from behind the arc in basket-
ball. A “cold war” could literally mean any wintertime war,
but in common parlance it signifes a confict short of open
warfare. A “washing machine” could literally refer to any
machine used for washing any item, but in everyday speech
it means a machine for washing clothes.
This Court has often emphasized the importance of stick-
ing to the ordinary meaning of a phrase, rather than the
meaning of words in the phrase. In FCC v. AT&T Inc., 562
U. S. 397 (2011), for example, the Court explained:
“AT&T's argument treats the term `personal privacy'
as simply the sum of its two words: the privacy of a
person. . . . But two words together may assume a
more particular meaning than those words in isolation.
We understand a golden cup to be a cup made of or re-
sembling gold. A golden boy, on the other hand, is one
who is charming, lucky, and talented. A golden oppor-
tunity is one not to be missed. `Personal' in the phrase
`personal privacy' conveys more than just `of a person.'
3
The full phrasing of the statute is provided above in footnote 2. This
opinion uses “discriminate because of sex” as shorthand for “discriminate
. . . because of . . . sex.” Also, the plaintiffs do not dispute that the ordi-
nary meaning of the statutory phrase “discriminate” because of sex is the
same as the statutory phrase “to fail or refuse to hire or to discharge any
individual” because of sex.
788 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
It suggests a type of privacy evocative of human con-
cer
ns—not the sort usually associated with an entity
like, say, AT&T.” Id., at 406.
Exactly right and exactly on point in this case.
Justice Scalia explained the extraordinary importance of
hewing to the ordinary meaning of a phrase: “Adhering to
the fair meaning of the text (the textualist's touchstone)
does not limit one to the hyperliteral meaning of each word
in the text. In the words of Learned Hand: `a sterile literal-
ism . . . loses sight of the forest for the trees.' The full
body of a text contains implications that can alter the literal
meaning of individual words.” A. Scalia & B. Garner, Read-
ing Law 356 (2012) (footnote omitted). Put another way,
“the meaning of a sentence may be more than that of the
separate words, as a melody is more than the notes.” Helve-
ring v. Gregory, 69 F. 2d 809, 810–811 (CA2 1934) (L. Hand,
J.). Judges must take care to follow ordinary meaning
“when two words combine to produce a meaning that is not
the mechanical composition of the two words separately.”
Eskridge, Interpreting Law, at 62. Dictionaries are not “al-
ways useful for determining the ordinary meaning of word
clusters (like `driving a vehicle') or phrases and clauses or
entire sentences.” Id., at 44. And we must recognize that
a phrase can cover a “dramatically smaller category than
either component term.” Id., at 62.
If the usual evidence indicates that a statutory phrase
bears an ordinary meaning different from the literal strung-
together defnitions of the individual words in the phrase, we
may not ignore or gloss over that discrepancy. “Legislation
cannot sensibly be interpreted by stringing together diction-
ary synonyms of each word and proclaiming that, if the right
example of the meaning of each is selected, the `plain mean-
ing ' of the statute leads to a particular result. No theory of
interpretation, including textualism itself, is premised on
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789
Kavanaugh, J., dissenting
such an approach.” 883 F. 3d 100, 144, n. 7 (CA2 2018)
(L
ynch, J., dissenting).
4
In other words, this Court's precedents and longstanding
principles of statutory interpretation teach a clear lesson: Do
not simply split statutory phrases into their component
words, look up each in a dictionary, and then mechanically
put them together again, as the majority opinion today mis-
takenly does. See ante, at 655–659. To reiterate Justice
Scalia's caution, that approach misses the forest for the trees.
A literalist approach to interpreting phrases disrespects
ordinary meaning and deprives the citizenry of fair notice of
what the law is. It destabilizes the rule of law and thwarts
democratic accountability. For phrases as well as terms, the
“linchpin of statutory interpretation is ordinary meaning,
for that is going to be most accessible to the citizenry desir-
ous of following the law and to the legislators and their staffs
drafting the legal terms of the plans launched by statutes
and to the administrators and judges implementing the stat-
utory plan.” Eskridge, Interpreting Law, at 81; see Scalia,
A Matter of Interpretation, at 17.
Bottom line: Statutory Interpretation 101 instructs courts
to follow ordinary meaning, not literal meaning, and to ad-
here to the ordinary meaning of phrases, not just the mean-
ing of the words in a phrase.
Second, in light of the bedrock principle that we must ad-
here to the ordinary meaning of a phrase, the question in
4
Another longstanding canon of statutory interpretation—the absurdity
canon—similarly refects the law's focus on ordinary meaning rather than
literal meaning. That canon tells courts to avoid construing a statute
in a way that would lead to absurd consequences. The absurdity canon,
properly understood, is “an implementation of (rather than . . . an excep-
tion to) the ordinary meaning rule.” W. Eskridge, Interpreting Law 72
(2016). “What the rule of absurdity seeks to do is what all rules of inter-
pretation seek to do: make sense of the text.” A. Scalia & B. Garner,
Reading Law 235 (2012).
790 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
this case boils down to the ordinary meaning of the phrase
“discr
iminate because of sex.” Does the ordinary meaning
of that phrase encompass discrimination because of sexual
orientation? The answer is plainly no.
On occasion, it can be diffcult for judges to assess ordinary
meaning. Not here. Both common parlance and common
legal usage treat sex discrimination and sexual orientation
discrimination as two distinct categories of discrimination—
back in 1964 and still today.
As to common parlance, few in 1964 (or today) would
describe a fring because of sexual orientation as a fring
because of sex. As commonly understood, sexual orienta-
tion discrimination is distinct from, and not a form of, sex
discrimination. The majority opinion acknowledges the
common understanding, noting that the plaintiffs here prob-
ably did not tell their friends that they were fred because of
their sex. Ante, at 666. That observation is clearly cor-
rect. In common parlance, Bostock and Zarda were fred
because they were gay, not because they were men.
Contrary to the majority opinion's approach today, this
Court has repeatedly emphasized that common parlance mat-
ters in assessing the ordinary meaning of a statute, because
courts heed how “most people” “would have understood” the
text of a statute when enacted. New Prime Inc. v. Oliveira,
586 U. S. 105, 114 (2019); see Henson v. Santander Consumer
USA Inc., 582 U. S. 79, 84 (2017) (using a conversation be-
tween friends to demonstrate ordinary meaning); see also
Wisconsin Central Ltd. v. United States, 585 U. S. 274, 278
(2018) (similar); AT&T, 562 U. S., at 403–404 (similar).
Consider the employer who has four employees but must
fre two of them for fnancial reasons. Suppose the four em-
ployees are a straight man, a straight woman, a gay man,
and a lesbian. The employer with animosity against women
(animosity based on sex) will fre the two women. The em-
ployer with animosity against gays (animosity based on sex-
ual orientation) will fre the gay man and the lesbian. Those
are two distinct harms caused by two distinct biases that
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791
Kavanaugh, J., dissenting
have two different outcomes. To treat one as a form of the
other—as
the majority opinion does—misapprehends com-
mon language, human psychology, and real life. See Hively
v. Ivy Tech Community College of Ind., 853 F. 3d 339, 363
(CA7 2017) (Sykes, J., dissenting).
It also rewrites history. Seneca Falls was not Stonewall.
The women's rights movement was not (and is not) the gay
rights movement, although many people obviously support
or participate in both. So to think that sexual orientation
discrimination is just a form of sex discrimination is not just
a mistake of language and psychology, but also a mistake of
history and sociology.
Importantly, an overwhelming body of federal law refects
and reinforces the ordinary meaning and demonstrates that
sexual orientation discrimination is distinct from, and not a
form of, sex discrimination. Since enacting Title VII in
1964, Congress has never treated sexual orientation discrimi-
nation the same as, or as a form of, sex discrimination. In-
stead, Congress has consistently treated sex discrimination
and sexual orientation discrimination as legally distinct cate-
gories of discrimination.
Many federal statutes prohibit sex discrimination, and
many federal statutes also prohibit sexual orientation dis-
crimination. But those sexual or ientation statutes ex-
pressly prohibit sexual orientation discrimination in addition
to expressly prohibiting sex discrimination. Every single
one. To this day, Congress has never defned sex discrimi-
nation to encompass sexual orientation discrimination. In-
stead, when Congress wants to prohibit sexual orientation
discrimination in addition to sex discrimination, Congress
explicitly refers to sexual orientation discrimination.
5
5
See 18 U. S. C. § 249(a)(2)(A) (criminalizing violence because of “gender,
sexual orientation”); 20 U. S. C. § 1092(f )(1)(F)(ii) (requiring funding recip-
ients to collect statistics on crimes motivated by the victim's “gender, . . .
sexual orientation”); 34 U. S. C. § 12291(b)(13)(A) (prohibiting discrimina-
tion on the basis of “sex, . . . sexual orientation”); § 30501(1) (identifying
violence motivated by “gender, sexual orientation” as national problem);
792 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
That longstanding and widespread congressional practice
matters.
When interpreting statutes, as the Court has
often said, we “usually presume differences in language” con-
vey “differences in meaning.” Wisconsin Central, 585 U. S.,
at 279 (internal quotation marks omitted). When Congress
chooses distinct phrases to accomplish distinct purposes, and
does so over and over again for decades, we may not lightly
toss aside all of Congress's careful handiwork. As Justice
Scalia explained for the Court, “it is not our function” to
“treat alike subjects that different Congresses have chosen
to treat differently.” West Virginia Univ. Hospitals, Inc. v.
Casey, 499 U. S. 83, 101 (1991); see id., at 92.
And the Court has likewise stressed that we may not read
“a specifc concept into general words when precise language
in other statutes reveals that Congress knew how to identify
that concept.” Eskridge, Interpreting Law, at 415; see Uni-
versity of Tex. Southwestern Medical Center v. Nassar, 570
U. S. 338, 357 (2013); Arlington Central School Dist. Bd. of
Ed. v. Murphy, 548 U. S. 291, 297–298 (2006); Jama v. Immi-
gration and Customs Enforcement, 543 U. S. 335, 341–342
(2005); Custis v. United States, 511 U. S. 485, 491–493 (1994);
West Virginia Univ. Hospitals, 499 U. S., at 99.
So it is here. As demonstrated by all of the statutes
covering sexual orientation discrimination, Congress knows
how to prohibit sexual orientation discrimination. So courts
§ 30503(a)(1)(C) (authorizing Attorney General to assist state, local, and
tribal investigations of crimes motivated by the victim's “gender, sexual
orientation”); §§ 41305(b)(1), (3) (requiring Attorney General to acquire
data on crimes motivated by “gender . . . , sexual orientation,” but dis-
claiming any cause of action including one “based on discrimination due
to sexual orientation”); 42 U. S. C. § 294e–1(b)(2) (conditioning funding on
institution's inclusion of persons of “different genders and sexual orienta-
tions”); see also United States Sentencing Commission, Guidelines Manual
§ 3A1.1(a) (Nov. 2018) (authorizing increased offense level if the crime was
motivated by the victim's “gender . . . or sexual orientation”); 2E Guide to
Judiciary Policy § 320 (2019) (prohibiting judicial discrimination because of
“sex, . . . sexual orientation”).
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793
Kavanaugh, J., dissenting
should not read that specifc concept into the general words
“discr
iminate because of sex.” We cannot close our eyes
to the indisputable fact that Congress—for several decades
in a large number of statutes—has identifed sex discrimina-
tion and sexual orientation discrimination as two distinct
categories.
Where possible, we also strive to interpret statutes so as
not to create undue surplusage. It is not uncommon to fnd
some scattered redundancies in statutes. But reading sex
discrimination to encompass sexual orientation discrimina-
tion would cast aside as surplusage the numerous references
to sexual orientation discrimination sprinkled throughout
the U. S. Code in laws enacted over the last 25 years.
In short, an extensive body of federal law both refects and
reinforces the widespread understanding that sexual orien-
tation discrimination is distinct from, and not a form of, sex
discrimination.
The story is the same with bills proposed in Congress.
Since the 1970s, Members of Congress have introduced many
bills to prohibit sexual orientation discrimination in the
workplace. Until very recently, all of those bills would
have expressly established sexual orientation as a separately
proscribed category of discrimination. The bills did not
defne sex discrimination to encompass sexual orientation
discrimination.
6
6
See, e. g., H. R. 14752, 93d Cong., 2d Sess., §§ 6, 11 (1974) (amending
Title VII “by adding after the word `sex' ” the words “ `sexual orienta-
tion,' ” defned as “choice of sexual partner according to gender”); H. R.
451, 95th Cong., 1st Sess., §§ 6, 11 (1977) (“adding after the word `sex,' . . .
`affectional or sexual preference,' ” defned as “having or manifesting an
emotional or physical attachment to another consenting person or persons
of either gender, or having or manifesting a preference for such attach-
ment”); S. 1708, 97th Cong., 1st Sess., §§ 1, 2 (1981) (“inserting after `sex'
. . . `sexual orientation,' ” defned as “ `homosexuality, heterosexuality, and
bisexuality' ”); H. R. 230, 99th Cong., 1st Sess., §§ 4, 8 (1985) (“inserting
after `sex,' . . . `affectional or sexual orientation,' ” defned as “homosexual-
ity, heterosexuality, and bisexuality”); S. 47, 101st Cong., 1st Sess., §§ 5, 9
794 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
The proposed bills are telling not because they are rele-
vant
to congressional intent regarding Title VII. See Cen-
tral Bank of Denver, N. A. v. First Interstate Bank of
Denver, N. A., 511 U. S. 164, 186–188 (1994). Rather, the
proposed bills are telling because they, like the enacted laws,
further demonstrate the widespread usage of the English
language in the United States: Sexual orientation discrimi-
nation is distinct from, and not a form of, sex discrimination.
Presidential Executive Orders refect that same common
understanding. In 1967, President Johnson signed an Exec-
utive Order prohibiting sex discrimination in federal employ-
ment. In 1969, President Nixon issued a new order that did
the same. Exec. Order No. 11375, 3 CFR 684 (1966–1970
Comp.); Exec. Order No. 11478, id., at 803. In 1998, Presi-
dent Clinton charted a new path and signed an Executive
Order prohibiting sexual orientation discrimination in federal
employment. Exec. Order No. 13087, 3 CFR 191 (1999). The
Nixon and Clinton Executive Orders remain in effect today.
Like the relevant federal statutes, the 1998 Clinton Execu-
tive Order expressly added sexual orientation as a new, sepa-
rately prohibited form of discrimination. As Judge Lynch
cogently spelled out, “the Clinton Administration did not
argue that the prohibition of sex discrimination in” the prior
1969 Executive Order “already banned, or henceforth would
be deemed to ban, sexual orientation discrimination.” 883
F. 3d, at 152, n. 22 (dissenting opinion). In short, President
(1989) (“inserting after `sex,' . . . `affectional or sexual orientation,' ” de-
fned as “homosexuality, heterosexuality, and bisexuality”); H. R. 431, 103d
Cong., 1st Sess., § 2 (1993) (prohibiting discrimination “on account of . . .
sexual orientation” without defnition); H. R. 1858, 105th Cong., 1st Sess.,
§§ 3, 4 (1997) (prohibiting discrimination “on the basis of sexual orienta-
tion,” defned as “homosexuality, bisexuality, or heterosexuality”); H. R.
2692, 107th Cong., 1st Sess., §§ 3, 4 (2001) (prohibiting discrimination “be-
cause of . . . sexual orientation,” defned as “homosexuality, bisexuality, or
heterosexuality”); H. R. 2015, 110th Cong., 1st Sess., §§ 3, 4 (2007) (prohib-
iting discrimination “because of . . . sexual orientation,” defned as “homo-
sexuality, heterosexuality, or bisexuality”); S. 811, 112th Cong., 1st Sess.,
§§ 3, 4 (2011) (same).
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795
Kavanaugh, J., dissenting
Clinton's 1998 Executive Order indicates that the Executive
Branch,
like Congress, has long understood sexual orienta-
tion discrimination to be distinct from, and not a form of,
sex discrimination.
Federal regulations likewise refect that same understand-
ing. The Offce of Personnel Management is the federal
agency that administers and enforces personnel rules across
the Federal Government. OPM has issued regulations that
“govern . . . the employment practices of the Federal Gov-
ernment generally, and of individual agencies.” 5 CFR
§§ 300.101, 300.102 (2019). Like the federal statutes and the
Presidential Executive Orders, those OPM regulations sepa-
rately prohibit sex discrimination and sexual orientation
discrimination.
The States have proceeded in the same fashion. A major-
ity of States prohibit sexual orientation discrimination in
employment, either by legislation applying to most workers,
7
7
See Cal. Govt. Code Ann. § 12940(a) (West 2020 Cum. Supp.) (prohibit-
ing discrimination because of “sex, . . . sexual orientation,” etc.); Colo. Rev.
Stat. § 24–34–402(1)(a) (2019) (prohibiting discrimination because of “sex,
sexual orientation,” etc.); Conn. Gen. Stat. § 46a–81c (2017) (prohibiting
discrimination because of “sexual orientation”); Del. Code Ann., Tit. 19,
§ 711 (2018 Cum. Supp.) (prohibiting discrimination because of “sex (in-
cluding pregnancy), sexual orientation,” etc.); D. C. Code § 2–1402.11(a)(1)
(2019 Cum. Supp.) (prohibiting discrimination based on “sex, . . . sexual
orientation,” etc.); Haw. Rev. Stat. § 378–2(a)(1)(A) (2018 Cum. Supp.) (pro-
hibiting discrimination because of “sex[,] . . . sexual orientation,” etc.);
Ill. Comp. Stat., ch. 775, §§ 5/1–103(Q), 5/2–102(A) (West 2018) (prohibiting
discrimination because of “sex, . . . sexual orientation,” etc.); Iowa Code
§ 216.6(1)(a) (2018) (prohibiting discrimination because of “sex, sexual ori-
entation,” etc.); Me. Rev. Stat. Ann., Tit. 5, § 4572(1)(A) (2013) (prohibiting
discrimination because of “sex, sexual orientation,” etc.); Md. State Govt.
Code Ann. § 20–606(a)(1)(i) (Supp. 2019) (prohibiting discrimination be-
cause of “sex, . . . sexual orientation,” etc.); Mass. Gen. Laws, ch. 151B, § 4
(2018) (prohibiting discrimination because of “sex, . . . sexual orientation,”
etc.); Minn. Stat. § 363A.08(2) (2018) (prohibiting discrimination because
of “sex, . . . sexual orientation,” etc.); Nev. Rev. Stat. § 613.330(1) (2017)
(prohibiting discrimination because of “sex, sexual orientation,” etc.);
N. H. Rev. Stat. Ann. § 354–A:7(I) (2018 Cum. Supp.) (prohibiting discrimi-
nation because of “sex,” “sexual orientation,” etc.); N. J. Stat. Ann. § 10:5–
796 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
a n e x e c u t i v e o r d e r a p p l y i n g t o p u b l i c e m p l o y -
ees,
8
or
both. Almost every state statute or executive order
12(a) (West Supp. 2019) (prohibiting discrimination because of “sexual
orientation, . . . sex,” etc.); N. M. Stat. Ann. § 28–1–7(A) (Supp. 2019) (prohib-
iting discrimination because of “sex, sexual orientation,” etc.); N. Y. Exec.
Law Ann. § 296(1)(a) (West Supp. 2020) (prohibiting discrimination because
of “sexual orientation, . . . sex,” etc.); Ore. Rev. Stat. § 659A.030(1) (2019)
(prohibiting discrimination because of “sex, sexual orientation,” etc.); R. I.
Gen. Laws § 28–5–7(1) (Supp. 2019) (prohibiting discrimination because of
“sex, sexual orientation,” etc.); Utah Code § 34A–5–106(1) (2019) (prohibit-
ing discrimination because of “sex; . . . sexual orientation,” etc.); Vt. Stat.
Ann., Tit. 21, § 495(a)(1) (2019 Cum. Supp.) (prohibiting discrimination be-
cause of “sex, sexual orientation,” etc.); Wash. Rev. Code § 49.60.180 (2008)
(prohibiting discrimination because of “sex, . . . sexual orientation,” etc.).
8
See, e. g., Alaska Admin. Order No. 195 (2002) (prohibiting public-
employment discrimination because of “sex, . . . sexual orientation,” etc.);
Ariz. Exec. Order No. 2003–22 (2003) (prohibiting public-employment dis-
crimination because of “sexual orientation”); Cal. Exec. Order No. B–54–79
(1979) (prohibiting public-employment discrimination because of “sexual
preference”); Colo. Exec. Order (Dec. 10, 1990) (proh ibiti ng public-
employment discrimination because of “gender, sexual orientation,” etc.);
Del. Exec. Order No. 8 (2009) (prohibiting public-employment discrimina-
tion because of “gender, . . . sexual orientation,” etc.); Ind. Governor's
Pol'y Statement (2018) (prohibiting public-employment discrimination be-
cause of “sex, . . . sexual orientation,” etc.); Kan. Exec. Order No. 19–02
(2019) (prohibiting public-employment discrimination because of “gender,
sexual orientation,” etc.); Ky. Exec. Order No. 2008–473 (2008) (prohibiting
public-employment discrimination because of “sex, . . . sexual orientation,”
etc.); Mass. Exec. Order No. 526 (2011) (prohibiting public-employment
discrimination because of “gender, . . . sexual orientation,” etc.); Minn.
Exec. Order No. 86–14 (1986) (prohibiting public-employment discrimina-
tion because of “sexual orientation”); Mo. Exec. Order No. 10–24 (2010)
(prohibiting public-employment discrimination because of “sex, . . . sexual
orientation,” etc.); Mont. Exec. Order No. 04–2016 (2016) (prohibiting
public-employment discrimination because of “sex, . . . sexual orientation,”
etc.); N. H. Exec. Order No. 2016–04 (2016) (prohibiting public-employment
discrimination because of “sex, sexual orientation,” etc.); N. J. Exec. Order
No. 39 (1991) (prohibiting public-employment discrimination because of
“sexual orientation”); N. C. Exec. Order No. 24 (2017) (prohibiting public-
employment discrimination because of “sex, . . . sexual orientation,” etc.);
Ohio Exec. Order No. 2019–05D (2019) (prohibiting public-employment dis-
Cite
as: 590 U. S. 644 (2020)
797
Kavanaugh, J., dissenting
proscribing sexual orientation discrimination expressly pro-
h
ibits sexual orientation discrimination separately from the
State's ban on sex discrimination.
That common usage in the States underscores that sexual
orientation discrimination is commonly understood as a legal
concept distinct from sex discrimination.
And it is the common understanding in this Court as well.
Since 1971, the Court has employed rigorous or heightened
constitutional scrutiny of laws that classify on the basis of
sex. See United States v. Virginia, 518 U. S. 515, 531–533
(1996); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136–
137 (1994); Craig v. Boren, 429 U. S. 190, 197–199 (1976);
Frontiero v. Richardson, 411 U. S. 677, 682–684 (1973) (plu-
rality opinion); Reed v. Reed, 404 U. S. 71, 75–77 (1971).
Over the last several decades, the Court has also decided
many cases involving sexual orientation. But in those cases,
the Court never suggested that sexual orientation discrimi-
nation is just a form of sex discrimination. All of the
Court's cases from Bowers to Romer to Lawrence to Wind-
sor to Obergefell would have been far easier to analyze and
decide if sexual orientation discrimination were just a form
of sex discrimination and therefore received the same height-
ened scrutiny as sex discrimination under the Equal Protec-
crimination because of “gender, . . . sexual orientation,” etc.); Ore. Exec.
Order No. 19–08 (2019) (prohibiting public-employment discrimination
because of “sexual orientation”); Pa. Exec. Order No. 2016–04 (2016) (pro-
hibiting public-employment discrimination because of “gender, sexual ori-
entation,” etc.); R. I. Exec. Order No. 93–1 (1993) (prohibiting public-
employment discrimination because of “sex, . . . sexual orientation,” etc.);
Va. Exec. Order No. 1 (2018) (prohibiting public-employment discrimina-
tion because of “sex, . . . sexual orientation,” etc.); Wis. Exec. Order No. 1
(2019) (prohibiting public-employment discrimination because of “sex, . . .
sexual orientation,” etc.); cf. Wis. Stat. §§ 111.36(1)(d)(1), 111.321 (2016)
(prohibiting employment discrimination because of sex, defned as includ-
ing discrimination because of “sexual orientation”); Mich. Exec. Directive
No. 2019–9 (2019) (prohibiting public-employment discrimination because
of “sex,” defned as including “sexual orientation”).
798 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
tion Clause. See Bowers v. Hardwick, 478 U. S. 186 (1986);
Ro
mer v. Evans, 517 U. S. 620 (1996); Lawrence v. Texas, 539
U. S. 558 (2003); United States v. Windsor, 570 U. S. 744
(2013); Obergefell v. Hodges, 576 U. S. 644 (2015).
Did the Court in all of those sexual orientation cases just
miss that obvious answer—and overlook the fact that sexual
orientation discrimination is actually a form of sex discrimi-
nation? That seems implausible. Nineteen Justices have
participated in those cases. Not a single Justice stated or
even hinted that sexual orientation discrimination was just
a form of sex discrimination and therefore entitled to the
same heightened scr uti ny under the Equa l Protec ti on
Clause. The opinions in those fve cases contain no trace of
such reasoning. That is presumably because everyone on
this Court, too, has long understood that sexual orientation
discrimination is distinct from, and not a form of, sex
discrimination.
In sum, all of the usual indicators of ordinary meaning—
common parlance, common usage by Congress, the practice
in the Executive Branch, the laws in the States, and the deci-
sions of this Court—overwhelmingly establish that sexual
orientation discrimination is distinct from, and not a form of,
sex discrimination. The usage has been consistent across
decades, in both the federal and state contexts.
Judge Sykes summarized the law and language this way:
“To a fuent speaker of the English language—then and
now— . . . discrimination `because of sex' is not reasonably
understood to include discrimination based on sexual orien-
tation, a different immutable characteristic. Classifying
people by sexual orientation is different than classifying
them by sex. The two traits are categorically distinct and
widely recognized as such. There is no ambiguity or vague-
ness here.” Hively, 853 F. 3d, at 363 (dissenting opinion).
To tie it all together, the plaintiffs have only two routes
to succeed here. Either they can say that literal meaning
overrides ordinary meaning when the two confict. Or they
Cite
as: 590 U. S. 644 (2020)
799
Kavanaugh, J., dissenting
can say that the ordinary meaning of the phrase “discrimi-
nate
because of sex” encompasses sexual orientation dis-
crimination. But the frst fouts long-settled principles of
statutory interpretation. And the second contradicts the
widespread ordinary use of the English language in America.
II
Until the last few years, every U. S. Court of Appeals to
address this question concluded that Title VII does not pro-
hibit discrimination because of sexual orientation. As noted
above, in the frst 10 Courts of Appeals to consider the issue,
all 30 federal judges agreed that Title VII does not prohibit
sexual orientation discrimination. 30 out of 30 judges.
9
The unanimity of those 30 federal judges shows that the
question as a matter of law, as compared to as a matter of
policy, was not deemed close. Those 30 judges realized a
seemingly obvious point: Title VII is not a general grant of
authority for judges to fashion an evolving common law of
equal treatment in the workplace. Rather, Title VII identi-
fes certain specifc categories of prohibited discrimination.
And under the separation of powers, Congress—not the
courts—possesses the authority to amend or update the law,
as Congress has done with age discrimination and disability
discrimination, for example.
So what changed from the situation only a few years ago
when 30 out of 30 federal judges had agreed on this question?
9
See Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 258–
259 (CA1 1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA2 2000); Bibby
v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001);
Wrightson v. Pizza Hut of America, Inc., 99 F. 3d 138, 143 (CA4 1996);
Blum v. Gul f Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam); Ruth
v. Children's Medical Center, 1991 WL 151158, *5 (CA6, Aug. 8, 1991)
(per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084–1085
(CA7 1984); Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70
(CA8 1989) (per curiam); DeSantis v. Pacifc Tel. & Tel. Co., 608 F. 2d 327,
329–330 (CA9 1979); Medina v. Income Support Div., N. M., 413 F. 3d
1131, 1135 (CA10 2005).
800 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
Not the text of Title VII. The law has not changed.
Rather
, the judges' decisions have evolved.
To be sure, the majority opinion today does not openly
profess that it is judicially updating or amending Title VII.
Cf. Hively, 853 F. 3d, at 357 (Posner, J., concurring). But
the majority opinion achieves the same outcome by seizing
on literal meaning and overlooking the ordinary meaning of
the phrase “discriminate because of sex.” Although the ma-
jority opinion acknowledges that the meaning of a phrase
and the meaning of a phrase's individual words could differ,
it dismisses phrasal meaning for purposes of this case. The
majority opinion repeatedly seizes on the meaning of the
statute's individual terms, mechanically puts them back
together, and generates an interpretation of the phrase
“discriminate because of sex” that is literal. See ante, at
655–659, 666, 674–676. But to reiterate, that approach to
statutory interpretation is fundamentally fawed. Bedrock
principles of statutory interpretation dictate that we look to
ordinary meaning, not literal meaning, and that we likewise
adhere to the ordinary meaning of phrases, not just the
meaning of words in a phrase. And the ordinary meaning of
the phrase “discriminate because of sex” does not encompass
sexual orientation discrimination.
The majority opinion defects that critique by saying that
courts should base their interpretation of statutes on the
text as written, not on the legislators' subjective intentions.
Ante, at 670, 673–680. Of course that is true. No one dis-
agrees. It is “the provisions of our laws rather than the
principal concerns of our legislators by which we are gov-
erned.” Oncale v. Sundowner Offshore Services, Inc., 523
U. S. 75, 79 (1998).
But in my respectful view, the majority opinion makes a
fundamental mistake by confusing ordinary meaning with
subjective intentions. To briefy explain: In the early years
after Title VII was enacted, some may have wondered
whether Title VII's prohibition on sex discrimination pro-
Cite
as: 590 U. S. 644 (2020)
801
Kavanaugh, J., dissenting
tected male employees. After all, covering male employees
may
not have been the intent of some who voted for the
statute. Nonetheless, discrimination on the basis of sex
against women and discrimination on the basis of sex against
men are both understood as discrimination because of sex
(back in 1964 and now) and are therefore encompassed
within Title VII. Cf. id., at 78–79; see Newport News Ship-
building & Dry Dock Co. v. EEOC, 462 U. S. 669, 682–685
(1983). So too, regardless of what the intentions of the
drafters might have been, the ordinary meaning of the law
demonstrates that harassing an employee because of her sex
is discriminating against the employee because of her sex
with respect to the “terms, conditions, or privileges of em-
ployment,” as this Court rightly concluded. Meritor Sav-
ings Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986) (internal
quotation marks omitted).
10
10
An amicus brief supporting the plaintiffs suggests that the plaintiffs'
interpretive approach is supported by the interpretive approach employed
by the Court in its landmark decision in Brown v. Board of Education,
347 U. S. 483 (1954). See Brief for Anti-Discrimination Scholars as Amici
Curiae 4. That suggestion is incorrect. Brown is a correct decision as
a matter of original public meaning. There were two analytical compo-
nents of Brown. One issue was the meaning of “equal protection.” The
Court determined that black Americans—like all Americans—have an in-
dividual equal protection right against state discrimination on the basis
of race. (That point is also directly made in Bolling v. Sharpe, 347 U. S.
497, 499–500 (1954).) Separate but equal is not equal. The other issue
was whether that racial nondiscrimination principle applied to public
schools, even though public schools did not exist in any comparable form
in 1868. The answer was yes. The Court applied the equal protection
principle to public schools in the same way that the Court applies, for
example, the First Amendment to the Internet and the Fourth Amend-
ment to cars.
This case raises the same kind of inquiry as the frst question in Brown.
There, the question was what equal protection meant. Here, the question
is what “discriminate because of sex” means. If this case raised the ques-
tion whether the sex discrimination principle in Title VII applied to some
category of employers unknown in 1964, such as to social media compa-
nies, it might be a case in Brown's second category, akin to the question
802 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
By contrast, this case involves sexual orientation discrimi-
nati
on, which has long and widely been understood as dis-
tinct from, and not a form of, sex discrimination. Until now,
federal law has always refected that common usage and
recognized that distinction between sex discrimination and
sexual orientation discrimination. To fre one employee be-
cause she is a woman and another employee because he is
gay implicates two distinct societal concerns, reveals two dis-
tinct biases, imposes two distinct harms, and falls within two
distinct statutory prohibitions.
To be sure, as Judge Lynch appropriately recognized, it is
“understandable” that those seeking legal protection for gay
people “search for innovative arguments to classify work-
place bias against gays as a form of discrimination that is
already prohibited by federal law. But the arguments ad-
vanced by the majority ignore the evident meaning of the
language of Title VII, the social realities that distinguish be-
tween the kinds of biases that the statute sought to exclude
from the workplace from those it did not, and the distinctive
nature of anti-gay prejudice.” 883 F. 3d, at 162 (dissenting
opinion).
The majority opinion insists that it is not rewriting or up-
dating Title VII, but instead is just humbly reading the text
of the statute as written. But that assertion is tough to
accept. Most everyone familiar with the use of the English
language in America understands that the ordinary meaning
of sexual orientation discrimination is distinct from the ordi-
nary meaning of sex discrimination. Federal law distin-
guishes the two. State law distinguishes the two. This
Court's cases distinguish the two. Statistics on discrimina-
tion distinguish the two. History distinguishes the two.
Psychology distinguishes the two. Sociology distinguishes
the two. Human resources departments all over America
distinguish the two. Sports leagues distinguish the two.
whether the racial nondiscrimination principle applied to public schools.
But that is not this case.
Cite
as: 590 U. S. 644 (2020)
803
Kavanaugh, J., dissenting
Political groups distinguish the two. Advocacy groups dis-
ti
nguish the two. Common parlance distinguishes the two.
Common sense distinguishes the two.
As a result, many Americans will not buy the novel inter-
pretation unearthed and advanced by the Court today.
Many will no doubt believe that the Court has unilaterally
rewritten American vocabulary and American law—a “statu-
tory amendment courtesy of unelected judges.” Hively, 853
F. 3d, at 360 (Sykes, J., dissenting). Some will surmise that
the Court succumbed to “the natural desire that beguiles
judges along with other human beings into imposing their
own views of goodness, truth, and justice upon others.”
Furman v. Georgia, 408 U. S. 238, 467 (1972) (Rehnquist, J.,
dissenting).
I have the greatest, and unyielding, respect for my col-
leagues and for their good faith. But when this Court
usurps the role of Congress, as it does today, the public un-
derstandably becomes confused about who the policymakers
really are in our system of separated powers, and inevitably
becomes cynical about the oft-repeated aspiration that
judges base their decisions on law rather than on personal
preference. The best way for judges to demonstrate that
we are deciding cases based on the ordinary meaning of the
law is to walk the walk, even in the hard cases when we
might prefer a different policy outcome.
***
In judicially rewriting Title VII, the Court today cashiers
an ongoing legislative process, at a time when a new law to
prohibit sexual orientation discrimination was probably close
at hand. After all, even back in 2007—a veritable lifetime
ago in American attitudes about sexual orientation—the
House voted 235 to 184 to prohibit sexual orientation dis-
crimination in employment. H. R. 3685, 110th Cong., 1st
Sess. In 2013, the Senate overwhelmingly approved a simi-
lar bill, 64 to 32. S. 815, 113th Cong., 1st Sess. In 2019,
804 BOSTOCK
v. CLAYTON COUNTY
Kavanaugh, J., dissenting
the House voted 236 to 173 to amend Title VII to prohibit
employment
discrimination on the basis of sexual orienta-
tion. H. R. 5, 116th Cong., 1st Sess. It was therefore easy
to envision a day, likely just in the next few years, when the
House and Senate took historic votes on a bill that would
prohibit employment discrimination on the basis of sexual
orientation. It was easy to picture a massive and celebra-
tory Presidential signing ceremony in the East Room or on
the South Lawn.
It is true that meaningful legislative action takes time—
often too much time, especially in the unwieldy morass on
Capitol Hill. But the Constitution does not put the Legisla-
tive Branch in the “position of a television quiz show contes-
tant so that when a given period of time has elapsed and a
problem remains unsolved by them, the federal judiciary
may press a buzzer and take its turn at fashioning a solu-
tion.” Rehnquist, The Notion of a Living Constitution, 54
Texas L. Rev. 693, 700 (1976). The proper role of the Judi-
ciary in statutory interpretation cases is “to apply, not
amend, the work of the People's representatives,” even when
the judges might think that “Congress should reenter the
feld and alter the judgments it made in the past.” Henson,
582 U. S., at 90.
Instead of a hard-earned victory won through the demo-
cratic process, today's victory is brought about by judicial
dictate—judges latching on to a novel form of living literal-
ism to rewrite ordinary meaning and remake American law.
Under the Constitution and laws of the United States, this
Court is the wrong body to change American law in that way.
The Court's ruling “comes at a great cost to representative
self-government.” Hively, 853 F. 3d, at 360 (Sykes, J., dis-
senting). And the implications of this Court's usurpation of
the legislative process will likely reverberate in unpredict-
able ways for years to come.
Notwithstanding my concern about the Court's transgres-
sion of the Constitution's separation of powers, it is appro-
Cite
as: 590 U. S. 644 (2020)
805
Kavanaugh, J., dissenting
priate to acknowledge the important victory achieved today
by
gay and lesbian Americans. Millions of gay and lesbian
Americans have worked hard for many decades to achieve
equal treatment in fact and in law. They have exhibited ex-
traordinary vision, tenacity, and grit—battling often steep
odds in the legislative and judicial arenas, not to mention in
their daily lives. They have advanced powerful policy argu-
ments and can take pride in today's result. Under the Con-
stitution's separation of powers, however, I believe that
it was Congress's role, not this Court's, to amend Title VII.
I therefore must respectfully dissent from the Court's
judgment.
806 OCTOBER
TERM, 2019
Per Curiam
ANDRUS v. TEXAS
on
petition for writ of certiorari to the court of
criminal appeals of texas
No. 18–9674. Decided June 15, 2020
Petitioner Andrus was sentenced to death after a jury trial. Defense
counsel presented no opening statement during either the guilt or pun-
ishment phases of Andrus' trial, conceded his guilt, raised no material
objection to the prosecution's evidence, and cross-examined the State's
witnesses only briefy. In subsequent state habeas proceedings, An-
drus argued his counsel was ineffective for failing to investigate or pres-
ent available mitigation evidence about Andrus' childhood and back-
ground. Af ter an 8-day evidentiary hearing, the state tr ia l court
agreed counsel had rendered constitutionally ineffective assistance
given the readily available and compelling mitigating evidence concern-
ing Andrus' grim life history. Andrus' counsel provided no reason for
failing to investigate Andrus' history when questioned at the hearing.
The trial court recommended Andrus be granted habeas relief and re-
ceive a new sentencing proceeding. The Texas Court of Criminal Ap-
peals disagreed, concluding without explanation that Andrus had failed
to satisfy his burden of showing ineffective assistance under Strickland
v. Washington, 466 U. S. 668.
Held: To prevail on a Sixth Amendment claim alleging ineffective assist-
ance of counsel, a defendant must show that his counsel's performance
was defcient and that this defcient performance prejudiced him. Id.,
at 688, 694. The record makes clear that Andrus has demonstrated
counsel's defcient performance under Strickland. Counsel overlooked
vast tranches of mitigating evidence. Counsel also failed to investigate
the aggravating evidence, thereby forgoing critical opportunities to
rebut the State's case in aggravation. It is unclear whether the Court
of Criminal Appeals properly engaged with the follow-on question
whether Andrus has shown that his counsel's defcient performance
prejudiced him. The Court thus vacates the judgment of the Texas
Court of Criminal Appeals and remands the case for that court to ad-
dress in the frst instance the weighty and record-intensive analysis of
the prejudice prong of Strickland.
Certiorari granted; vacated and remanded.
Per Curiam.
Death-sentenced petitioner Terence Andrus was six years
old when his mother began selling drugs out of the apart-
Cite
as: 590 U. S. 806 (2020)
807
Per Curiam
ment where Andrus and his four siblings lived. To fund a
spira
ling drug addiction, Andrus' mother also turned to pros-
titution. By the time Andrus was 12, his mother regularly
spent entire weekends, at times weeks, away from her fve
children to binge on drugs. When she did spend time
around her children, she often was high and brought with
her a revolving door of drug-addicted, sometimes physically
violent, boyfriends. Before he reached adolescence, Andrus
took on the role of caretaker for his four siblings.
When Andrus was 16, he allegedly served as a lookout
while his friends robbed a woman. He was sent to a juve-
nile detention facility where, for 18 months, he was steeped
in gang culture, dosed on high quantities of psychotropic
drugs, and frequently relegated to extended stints of solitary
confnement. The ordeal left an already traumatized An-
drus all but suicidal. Those suicidal urges resurfaced later
in Andrus' adult life.
During Andrus' capital trial, however, nearly none of this
mitigating evidence reached the jury. That is because An-
drus' defense counsel not only neglected to present it; he
failed even to look for it. Indeed, counsel performed virtu-
ally no investigation of the relevant evidence. Those fail-
ures also fettered the defense's capacity to contextualize or
counter the State's evidence of Andrus' alleged incidences of
past violence.
Only years later, during an 8-day evidentiary hearing in
Andrus' state habeas proceeding, did the grim facts of An-
drus' life history come to light. And when pressed at the
hearing to provide his reasons for failing to investigate An-
drus' history, Andrus' counsel offered none.
The Texas trial court that heard the evidence recom-
mended that Andrus be granted habeas relief and receive a
new sentencing proceeding. The court found the abundant
mitigating evidence so compelling, and so readily available,
that counsel's failure to investigate it was constitutionally
defcient performance that prejudiced Andrus during the
punishment phase of his trial. The Texas Court of Criminal
808 ANDR
US v. TEXAS
Per Curiam
Appeals disagreed. It concluded without explanation that
Andr
us had failed to satisfy his burden of showing ineffec-
tive assistance under Strickland v. Washington, 466 U. S.
668 (1984).
We conclude that the record makes clear that Andrus has
demonstrated counsel's defcient performance under Strick-
land, but that the Court of Criminal Appeals may have failed
properly to engage with the follow-on question whether An-
drus has shown that counsel's defcient performance preju-
diced him. We thus grant Andrus' petition for a writ of cer-
tiorari, vacate the judgment of the Texas Court of Criminal
Appeals, and remand the case for further proceedings not
inconsistent with this opinion.
I
A
In 2008, 20-year-old Terence Andrus unsuccessfully at-
tempted a carjacking in a grocery-store parking lot while
under the infuence of PCP-laced marijuana. During the
bungled attempt, Andrus fred multiple shots, killing car
owner Avelino Diaz and bystander Kim-Phuong Vu Bui.
The State charged Andrus with capital murder.
At the guilt phase of trial, Andrus' defense counsel de-
clined to present an opening statement. After the State
rested its case, the defense immediately rested as well. In
his closing argument, defense counsel conceded Andrus' guilt
and informed the jury that the trial would “boil down to the
punishment phase,” emphasizing that “that's where we are
going to be fghting.” 45 Tr. 18. The jury found Andrus
guilty of capital murder.
Trial then turned to the punishment phase. Once again,
Andrus' counsel presented no opening statement. In its 3-
day case in aggravation, the State put forth evidence that
Andrus had displayed aggressive and hostile behavior while
confned in a juvenile detention center; that Andrus had tat-
toos indicating gang affliations; and that Andrus had hit,
Cite
as: 590 U. S. 806 (2020)
809
Per Curiam
kicked, and thrown excrement at prison offcials while await-
i
ng trial. The State also presented evidence tying Andrus
to an aggravated robbery of a dry-cleaning business. Coun-
sel raised no material objections to the State's evidence and
cross-examined the State's witnesses only briefy.
When it came to the defense's case in mitigation, counsel
frst called Andrus' mother to testify. The direct examina-
tion focused on Andrus' basic biographical information and
did not reveal any diffcult circumstances in Andrus' child-
hood. Andrus' mother testifed that Andrus had an “excel-
lent” relationship with his siblings and grandparents. 49
id., at 52, 71. She also insisted that Andrus “didn't have
access to” “drugs or pills in [her] household,” and that she
would have “[c]ounsel[ed] him” had she found out that he
was using drugs. Id., at 67, 79.
The second witness was Andrus' biological father, Michael
Davis, with whom Andrus had lived for about a year when
Andrus was around 15 years old. Davis had been in and out
of prison for much of Andrus' life and, before he appeared to
testify, had not seen Andrus in more than six years. The
bulk of Davis' direct examination explored such topics as
Davis' criminal history and his relationship with Andrus'
mother. Toward the end of the direct examination, counsel
elicited testimony that Andrus had been “good around
[Davis]” during the 1-year period he had lived with Davis.
50 id., at 8.
Once Davis stepped down, Andrus' counsel informed the
court that the defense rested its case and did not intend to
call any more witnesses. After the court questioned counsel
about this choice during a sidebar discussion, however, coun-
sel changed his mind and decided to call additional witnesses.
Following a court recess, Andrus' counsel called Dr. John
Roache as the defense's only expert witness. Counsel's
terse direct examination focused on the general effects of
dr ug use on developi ng adolescent brai ns. On cross-
examination, the State quizzed Dr. Roache about the rele-
810 ANDR
US v. TEXAS
Per Curiam
vance and purpose of his testimony, probing pointedly
whether
Dr. Roache “drove three hours from San Antonio to
tell the jury . . . that people change their behavior when they
use drugs.” 51 id., at 21.
Counsel next called James Martins, a prison counselor who
had worked with Andrus. Martins testifed that Andrus
“started having remorse” in the past two months and was
“making progress.” Id., at 35. On cross-examination, the
State emphasized that Andrus' feelings of remorse had mani-
fested only recently, around the time trial began.
Finally, Andrus himself testifed. Contrary to his moth-
er's depiction of his upbringing, he stated that his mother
had started selling drugs when he was around six years old,
and that he and his siblings were often home alone when
they were growing up. He also explained that he frst
started using drugs regularly around the time he was 15.
All told, counsel's questioning about Andrus' childhood com-
prised four pages of the trial transcript. The State on cross
declared, “I have not heard one mitigating circumstance in
your life.” Id., at 60.
The jury sentenced Andrus to death.
B
After an unsuccessful direct appeal, Andrus fled a state
habeas application, principally alleging that his trial counsel
was ineffective for failing to investigate or present available
mitigation evidence. During an 8-day evidentiary hearing,
Andrus presented what the Texas trial court characterized
as a “tidal wave of information . . . with regard to mitiga-
tion.” 7 Habeas Tr. 101.
The evidence revealed a childhood marked by extreme ne-
glect and privation, a family environment flled with violence
and abuse. Andrus was born into a neighborhood of Hous-
ton, Texas, known for its frequent shootings, gang fghts, and
drug overdoses. Andrus' mother had Andrus, her second of
fve children, when she was 17. The children's fathers never
Cite
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811
Per Curiam
stayed as part of the family. One of them raped Andrus'
younger
half sister when she was a child. The others—some
physically abusive toward Andrus' mother, all addicted to
drugs and carrying criminal histories—constantly fitted in
and out of the picture.
Starting when Andrus was young, his mother sold drugs
and engaged in prostitution. She often made her drug sales
at home, in view of Andrus and his siblings. She also habit-
ually used drugs in front of them, and was high more often
than not. In her frequently disoriented state, she would
leave her children to fend for themselves. Many times,
there was not enough food to eat.
After her boyfriend was killed in a shooting, Andrus'
mother became increasingly dependent on drugs and ne-
glectful of her children. As a close family friend attested,
Andrus' mother “would occasionally just take a week or a
weekend and binge [on drugs]. She would get a room some-
where and just go at it.” 13 Habeas Tr., Def. Exh. 13, p. 2.
With the children often left on their own, Andrus assumed
responsibility as the head of the household for his four sib-
lings, including his older brother with special needs. An-
drus was around 12 years old at the time. He cleaned for
his siblings, put them to bed, cooked breakfast for them,
made sure they got ready for school, helped them with their
homework, and made them dinner. According to his sib-
lings, Andrus was “a protective older brother” who “kept on
to [them] to stay out of trouble.” Id., Def. Exh. 18, p. 1.
Andrus, by their account, was “very caring and very loving,”
“liked to make people laugh,” and “never liked to see people
cry.” Ibid.; id., Def. Exh. 9, p. 1. While attempting to care
for his siblings, Andrus struggled with mental-health issues:
When he was only 10 or 11, he was diagnosed with affect-
ive psychosis.
At age 16, Andrus was sentenced to a juvenile detention
center run by the Texas Youth Commission (TYC), for alleg-
edly “serv[ing] as the `lookout' ” while he and his friends
812 ANDR
US v. TEXAS
Per Curiam
robbed a woman of her purse. 10 id., State Exh. 16, p. 9; 13
i
d., Def. Exh. 4, p. 4 (“Records indicate[d that] Andrus served
as the lookout”); 3 id., at 273–274; 5 id., at 206.
1
While in
TYC custody, Andrus was prescribed high doses of psycho-
tropic drugs carrying serious adverse side effects. He also
spent extended periods in isolation, often for purported in-
fractions like reporting that he had heard voices telling him
to do bad things. TYC records on Andrus noted multiple
instances of self-harm and threats of suicide. After 18
months in TYC custody, Andrus was transferred to an adult
prison facility.
Not long after Andrus' release from prison at age 18, An-
drus attempted the fatal carjacking that resulted in his capi-
tal convictions. While incarcerated awaiting trial, Andrus
tried to commit suicide. He slashed his wrist with a razor
blade and used his blood to smear messages on the walls,
beseeching the world to “[ j]ust let [him] die.” 31 id., Def.
Exh. 122–A, ANDRUS–SH 4522.
After considering all the evidence at the hearing, the
Texas trial court concluded that Andrus' counsel had been
ineffective for “failing to investigate and present mitigating
evidence regarding [Andrus'] abusive and neglectful child-
hood.” App. to Pet. for Cert. 36. The court observed that
the reason Andrus' jury did not hear “relevant, available, and
persuasive mitigating evidence” was that trial counsel had
“fail[ed] to investigate and present all other mitigating evi-
dence.” Id., at 36–37. The court explained that “there [is]
ample mitigating evidence which could have, and should
have, been presented at the punishment phase of [Andrus']
1
The dissent states that the victim identifed Andrus as the individual
holding the gun, post, at 829 (opinion of Alito, J.), but in fact, the victim
testifed at Andrus' trial that she did not and could not identify faces or
individuals, see 4 Tr. 17, 19–20. The dissent also claims that “the victim
matched Andrus's clothing to the gunman's,” post, at 829, n. 1, but neglects
to mention that the victim described at least two individuals as wearing
such clothing, see 46 Tr. 25–27.
Cite
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813
Per Curiam
trial.” Id., at 36. For that reason, the court concluded that
counsel
had been constitutionally ineffective, and that habeas
relief, in the form of a new punishment trial, was warranted.
Id., at 37, 42.
C
The Texas Court of Criminal Appeals rejected the trial
court's recommendation to grant habeas relief. In an un-
published per curiam order, the Court of Criminal Appeals
concluded without elaboration that Andrus had “fail[ed] to
meet his burden under Strickland v. Washington, 466 U. S.
668 (1984), to show by a preponderance of the evidence that
his counsel's representation fell below an objective standard
of reasonableness and that there was a reasonable probabil-
ity that the result of the proceedings would have been differ-
ent, but for counsel's defcient performance.” App. to Pet.
for Cert. 7–8. A concurring opinion reasoned that, even if
counsel had provided defcient performance under Strick-
land, Andrus could not show that counsel's defcient per-
formance prejudiced him.
Andrus petitioned for a writ of certiorari. We grant the
petition, vacate the judgment of the Texas Court of Criminal
Appeals, and remand for further proceedings not inconsist-
ent with this opinion. The evidence makes clear that An-
drus' counsel provided constitutionally defcient performance
under Strickland. But we remand so that the Court of
Criminal Appeals may address the prejudice prong of Strick-
land in the frst instance.
II
To prevail on a Sixth Amendment claim alleging ineffec-
tive assistance of counsel, a defendant must show that his
counsel's performance was defcient and that his counsel's de-
fcient performance prejudiced him. Strickland, 466 U. S.,
at 688, 694. To show defciency, a defendant must show that
“counsel's representation fell below an objective standard of
reasonableness.” Id., at 688. And to establish prejudice, a
defendant must show “that there is a reasonable probability
814 ANDR
US v. TEXAS
Per Curiam
that, but for counsel's unprofessional errors, the result of the
proceedi
ng would have been different.” Id., at 694.
A
“It is unquestioned that under prevailing professional
norms at the time of [Andrus'] trial, counsel had an `obliga-
tion to conduct a thorough investigation of the defendant's
background.' ” Porter v. McCollum, 558 U. S. 30, 39 (2009)
(per curiam) (quoting Williams v. Taylor, 529 U. S. 362, 396
(2000)). Counsel in a death-penalty case has “ `a duty to
make reasonable investigations or to make a reasonable deci-
sion that makes particular investigations unnecessary.' ”
Wiggins v. Smith, 539 U. S. 510, 521 (2003) (quoting Strick-
land, 466 U. S., at 691). “ `In any ineffectiveness case, a par-
ticular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel's judgments.' ” Wiggins,
539 U. S., at 521–522.
Here, the habeas record reveals that Andrus' counsel fell
short of his obligation in multiple ways: First, counsel per-
formed almost no mitigation investigation, overlooking vast
tranches of mitigating evidence. Second, due to counsel's
failure to investigate compelling mitigating evidence, what
little evidence counsel did present backfred by bolstering
the State's aggravation case. Third, counsel failed ade-
quately to investigate the State's aggravating evidence,
thereby forgoing critical opportunities to rebut the case in
aggravation. Taken together, those defciencies effected an
unconstitutional abnegation of prevailing professional norms.
1
To assess whether counsel exercised objectively reason-
able judgment under prevailing professional standards, we
frst ask “whether the investigation supporting counsel's de-
cision not to introduce mitigating evidence of [Andrus'] back-
ground was itself reasonable.” Id., at 523 (emphasis de-
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815
Per Curiam
leted); see also id., at 528 (considering whether “the scope
of
counsel's investigation into petitioner's background” was
reasonable); Porter, 558 U. S., at 39. Here, plainly not. Al-
though counsel nominally put on a case in mitigation in that
counsel in fact called witnesses to the stand after the prose-
cution rested, the record leaves no doubt that counsel's inves-
tigation to support that case was an empty exercise.
To start, counsel was, by his own admissions at the habeas
hearing, barely acquainted with the witnesses who testifed
during the case in mitigation. Counsel acknowledged that
the frst time he met Andrus' mother was when she was sub-
poenaed to testify, and the frst time he met Andrus' biologi-
cal father was when he showed up at the courthouse to take
the stand. Counsel also admitted that he did not get in
touch with the third witness (Dr. Roache) until just before
voir dire, and became aware of the fnal witness (Martins)
only partway through trial. Apart from some brief pretrial
discussion with Dr. Roache, who averred that he was “struck
by the extent to which [counsel] appeared unfamiliar” with
pertinent issues, counsel did not prepare the witnesses or go
over their testimony before calling them to the stand. 13
Habeas Tr., Def. Exh. 6, p. 3.
Over and over during the habeas hearing, counsel acknowl-
edged that he did not look into or present the myriad tragic
circumstances that marked Andrus' life. For instance, he
did not know that Andrus had attempted suicide in prison,
or that Andrus' experience in the custody of the TYC left
him badly traumatized. Aside from Andrus' mother and bi-
ological father, counsel did not meet with any of Andrus'
close family members, all of whom had disturbing stories
about Andrus' upbringing. As a clinical psychologist testi-
fed at the habeas hearing, Andrus suffered “very pro-
nounced trauma” and posttraumatic stress disorder symp-
toms from, among other th i ngs, “severe neg lec t” and
exposure to domestic violence, substance abuse, and death in
his childhood. 6 id., at 168–169, 180; 7 id., at 52. Counsel
816 ANDR
US v. TEXAS
Per Curiam
uncovered none of that evidence. Instead, he “abandoned
[h
is] investigation of [Andrus'] background after having ac-
quired only rudimentary knowledge of his history from a
narrow set of sources.” Wiggins, 539 U. S., at 524.
On top of that, counsel “ignored pertinent avenues for in-
vestigation of which he should have been aware,” and indeed
was aware. Porter, 558 U. S., at 40. At trial, counsel
averred that his review did not reveal that Andrus had any
mental-health issues. But materials prepared by a mitiga-
tion expert well before trial had pointed out that Andrus had
been “diagnosed with affective psychosis,” a mental-health
condition marked by symptoms such as depression, mood la-
bility, and emotional dysregulation. 3 Habeas Tr. 70. At
the habeas hearing, counsel admitted that he “recall[ed] not-
ing,” based on the mitigation expert's materials, that Andrus
had been “diagnosed with this seemingly serious mental
health issue.” Id., at 71. He also acknowledged that a clin-
ical psychologist briefy retained to examine a limited sample
of Andrus' fles had informed him that Andrus may have
schizophrenia. Clearly, “the known evidence would [have]
le[d] a reasonable attorney to investigate further.” Wig-
gins, 539 U. S., at 527. Yet counsel disregarded, rather than
explored, the multiple red fags.
In short, counsel performed virtually no investigation,
either of the few witnesses he called during the case in miti-
gation, or of the many circumstances in Andrus' life that
could have served as powerful mitigating evidence. The un-
tapped body of mitigating evidence was, as the habeas hear-
ing revealed, simply vast.
“[C]ounsel's failure to uncover and present [the] volumi-
nous mitigating evidence,” moreover, cannot “be justifed as
a tactical decision.” Id., at 522; see also Williams, 529 U. S.,
at 396. Despite repeated questioning, counsel never offered,
and no evidence supports, any tactical rationale for the per-
vasive oversights and lapses here. Instead, the overwhelm-
ing weight of the record shows that counsel's “failure to in-
Cite
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817
Per Curiam
vestigate thoroughly resulted from inattention, not reasoned
strateg
ic judgment.” Wiggins, 539 U. S., at 526. That fail-
ure is all the more alarming given that counsel's purported
strategy was to concede guilt and focus on mitigation. In-
deed, counsel justifed his decision to present “basically” “no
defense” during the guilt phase by stressing that he intended
to train his efforts on the case in mitigation. 3 Habeas Tr.
57. As the habeas hearing laid bare, that representation
blinked reality. Simply put, “the scope of counsel's [mitiga-
tion] investigation” approached nonexistent. Wiggins, 539
U. S., at 528 (emphasis deleted).
2
No doubt due to counsel's failure to investigate the case
in mitigation, much of the so-called mitigating evidence he
offered unwittingly aided the State's case in aggravation.
Counsel's introduction of seemingly aggravating evidence
confrms the gaping distance between his performance at
trial and objectively reasonable professional judgment.
The testimony elicited from Andrus' mother best illus-
trates this defciency. First to testify during the case in
mitigation, Andrus' mother sketched a portrait of a tranquil
upbringing, during which Andrus got himself into trouble
despite his family's best efforts. On her account, Andrus
fell into drugs entirely on his own: Drugs were not available
at home, Andrus did not use them at home, and she would
have intervened had she known about Andrus' drug habits.
Andrus, his mother related to the jury, “[k]ind of ” “just de-
cided he didn't want to do what [she] told him to do.” 49
Tr. 83.
Even though counsel called Andrus' mother as a defense
witness, he was ill prepared for her testimony. Andrus told
counsel that his mother was being untruthful on the stand,
but counsel made no real attempt to probe the accuracy of
her testimony. Later, at the habeas hearing, counsel con-
ceded that Andrus' mother had been a “hostile” witness. 3
818 ANDR
US v. TEXAS
Per Curiam
Habeas Tr. 94. He further admitted that he “[did not] know
i
f [Andrus' mother] was telling the truth,” id., at 96, and
could not even say that he had known what Andrus' mother
would say on the stand, because he had not “done any inde-
pendent investigation” of her, id., at 95.
None of that inaction was for want of warning. During
the habeas proceedings, a mitigation specialist averred that
she had alerted Andrus' counsel to her concerns about An-
drus' mother well before trial. In a short interview with
the mitigation specialist, Andrus' mother had stated that
she “had too many kids,” and had taken out a $10,000 life-
insurance policy on Andrus on which she would be able to
collect were Andrus executed. 13 id., Def. Exh. 28, p. 5.
Troubled by these comments, the mitigation specialist “spe-
cifcally discussed with [Andrus' counsel] the fact that [An-
drus' mother] was not being a cooperative witness and might
not have Andrus's best interests motivating her behavior.”
Id., at 6. But Andrus' counsel did not heed the caution.
Turning a bad situation worse, counsel's uninformed deci-
sion to call Andrus' mother ultimately undermined Andrus'
own testimony. After Andrus testifed that his mother had
sold drugs from home when he was a child, counsel promptly
pointed out that Andrus “heard [his] mama testify,” and that
she “didn't say anything about selling drugs.” 51 Tr. 48.
Whether counsel merely intended to provide Andrus an op-
portunity to explain the discrepancy (or, far worse, sought
to signal that his client was being deceitful) the jury could
have understood counsel's statements to insinuate that
Andrus was lying. Counsel did nothing to dislodge that
suggesti on, and the damag i ng exchange occurred only
because defense counsel had called a hostile witness in the
frst place. Plainly, these offerings of seemingly aggravat-
ing evidence further demonstrate counsel's constitutionally
defcient performance.
3
Counsel also failed to conduct any independent investiga-
tion of the State's case in aggravation, despite ample oppor-
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819
Per Curiam
tunity to do so. He thus could not, and did not, rebut critical
aggravati
ng evidence. This failure, too, reinforces counsel's
defcient performance. See Rompilla v. Beard, 545 U. S.
374, 385 (2005) (“counsel ha[s] a duty to make all reasonable
efforts to learn what they c[an] about the offense[s]” the
prosecution intends to present as aggravating evidence).
During the case in aggravation, the State's task was to
prove to the jury that Andrus presented a future danger to
society. Tex. Code Crim. Proc. Ann., Art. 37.071, § 2(b)(1)
(Vernon 2006). To that end, the State emphasized that An-
drus had acted aggressively in TYC facilities and in prison
while awaiting trial. This evidence principally comprised
verbal threats, but also included instances of Andrus' kick-
ing, hitting, and throwing excrement at prison offcials when
they tried to control him. See App. to Pet. for Cert. 10–13.
Had counsel genuinely investigated Andrus' experiences in
TYC custody, counsel would have learned that Andrus' be-
havioral problems there were notably mild, and the harms
he sustained severe.
2
Or, with suffcient understanding of
the violent environments Andrus inhabited his entire life,
counsel could have provided a counternarrative of Andrus'
later episodes in prison. But instead, counsel left all of that
aggravating evidence untouched at trial—even going so far
as to inform the jury that the evidence made it “probabl[e]”
that Andrus was “a violent kind of guy.” 52 Tr. 35.
The State's case in aggravation also highlighted Andrus'
alleged commission of a knifepoint robbery at a dry-cleaning
business. At the time of the offense, “all [that] the crime
2
See, e. g., 5 Habeas Tr. 189 (TYC ombudsman testifying that it was
“surpris[ing] how few” citations Andrus received, “particularly in the
dorms where [Andr us] was” housed); ib id. (TYC ombudsman finding
“nothing uncommon” about Andrus' altercations because “sometimes you
have to fght to get by” in the “violent atmosphere” and “savage environ-
ment”); id., at 169 (TYC ombudsman testifying that Andrus' isolation peri-
ods in TYC custody, for 90 days at a time when Andrus was 16 or 17 years
old, “would horrify most current professionals in our justice feld today”);
id., at 246 (TYC ombudsman testifying that Andrus' “experience at TYC”
“damaged him” and “further traumatized” him).
820 ANDR
US v. TEXAS
Per Curiam
victim . . . told the police . . . was that he had been the victim
of
an assault by a black man.” 3 Habeas Tr. 65. Although
Andrus stressed to counsel his innocence of the offense, and
although the State had not proceeded with charges, Andrus'
counsel did not attempt to exclude or rebut the State's
evidence. That, too, is because Andrus' counsel concededly
had not independently investigated the incident. In fact, at
the habeas hearing, counsel did not even recall Andrus' deny-
ing responsibility for the offense. Had he looked, counsel
would have discovered that the only evidence originally
tying Andrus to the incident was a lone witness statement,
later recanted by the witness,
3
that led to the inclusion of
Andrus' photograph in a belated photo array, which the po-
lice admitted gave rise to numerous reliability concerns.
The dissent thus reinforces Andrus' claim of defcient per-
formance by recounting and emphasizing the details of the
dry-cleaning offense as if Andrus were undoubtedly the per-
petrator. See post, at 829–830 (opinion of Alito, J.). The
very problem here is that the jury indeed heard that account,
but not any of the signifcant evidence that would have cast
doubt on Andrus' involvement in the offense at all: signif-
cant evidence that counsel concededly failed to investigate.
4
3
The dissent maintains that this witness, Andrus' ex-girlfriend, “linked
[Andrus] to the robbery,” post, at 830, n. 4, even though she testifed at
the habeas hearing that she thought “it was impossible” that Andrus had
committed the offense, 8 Habeas Tr. 57.
4
The dissent does not mention that Andrus' image was conspicuously
placed in a central position in the photo array, as the “[o]nly one . . . looking
directly up and out.” 8 Habeas Tr. 35; see also id., at 32. Nor does the
dissent acknowledge that there was an approximately 3-month interval
between the incident (after which the victim provided little identifying
information about the assailant) and the police's presentation of the photo
array to the victim. See id., at 37; 46 Tr. 65. When asked about the
delay, the detective who prepared the photo array admitted that memory
can “deca[y] within a matter of days after a traumatizing incident like a
crime” and that an “eyewitness identifcatio[n]” “can be” “more exponen-
tially problematic” “the greater the time interval between the incident
and the identifcation.” 8 Habeas Tr. 31; see also ibid. (detective confrm-
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821
Per Curiam
That is hardly the work of reasonable counsel. In Texas,
a
jury cannot recommend a death sentence without unani-
mously fnding that a defendant presents a future danger to
society (i. e., that the State has made a suffcient showing
of aggravation). Tex. Code Crim. Proc. Ann., Art. 37.071,
§ 2(b)(1). Only after a jury makes a fnding of future danger-
ousness can it consider any mitigating evidence. Ibid.
Thus, by failing to conduct even a marginally adequate inves-
tigation, counsel not only “seriously compromis[ed his] oppor-
tunity to respond to a case for aggravation,” Rompilla, 545
U. S., at 385, but also relinquished the frst of only two proce-
dural pathways for opposing the State's pursuit of the death
penalty. There is no squaring that conduct, certainly when
examined alongside counsel's other shortfalls, with objec-
tively reasonable judgment.
B
Having found defcient performance, the question remains
whether counsel's defcient performance prejudiced Andrus.
See Strickland, 466 U. S., at 692. Here, prejudice exists if
there is a reasonable probability that, but for his counsel's
ineffectiveness, the jury would have made a different judg-
ment about whether Andrus deserved the death penalty as
opposed to a lesser sentence. See Wiggins, 539 U. S., at 536;
see also Tex. Code Crim. Proc. Ann., Art. 37.071, § 2(e)(1).
In assessing whether Andrus has made that showing, the
reviewing court must consider “the totality of the available
mitigation evidence—both that adduced at trial, and the evi-
dence adduced in the habeas proceeding ”—and “reweig[h] it
against the evidence in aggravation.” Williams, 529 U. S.,
at 397–398; see also Sears v. Upton, 561 U. S. 945, 956 (2010)
(per curiam) (“A proper analysis of prejudice under Strick-
land would have taken into account the newly uncovered
[mitigation] evidence . . . , along with the mitigation evidence
ing that there can be “real problems with reliability” if an “identifcation
[was] made several months” after).
822 ANDR
US v. TEXAS
Per Curiam
introduced during [the defendant's] penalty phase trial, to
assess
whether there is a reasonable probability that [the
defendant] would have received a different sentence after
a constitutionally suffcient mitigation investigation” (citing
cases)). And because Andrus' death sentence required a
unanimous jury recommendation, Tex. Code Crim. Proc.
Ann., Art. 37.071, prejudice here requires only “a reasonable
probability that at least one juror would have struck a differ-
ent balance” regarding Andrus' “moral culpability,” Wiggins,
539 U. S., at 537–538; see also Tex. Code Crim. Proc. Ann.,
Art. 37.071, § 2(e)(1).
According to Andrus, effective counsel would have painted
a vividly different tableau of aggravating and mitigating evi-
dence than that presented at trial. See Pet. for Cert. 18.
But despite powerful and readily available mitigating evi-
dence, Andrus argues, the Texas Court of Criminal Appeals
failed to engage in any meaningful prejudice inquiry. See
ibid.
It is unclear whether the Court of Criminal Appeals con-
sidered Strickland prejudice at all. Its one-sentence denial
of Andrus' Strickland claim, see supra, at 813, does not con-
clusively reveal whether it determined that Andrus had
failed to demonstrate defcient performance under Strick-
land's frst prong, that Andrus had failed to demonstrate
prejudice under Strickland's second prong, or that Andrus
had failed to satisfy both prongs of Strickland.
Unlike the concurring opinion, however, the brief order of
the Court of Criminal Appeals did not analyze Strickland
prejudice or engage with the effect the additional mitigating
evidence highlighted by Andrus would have had on the jury.
5
5
The Court of Criminal Appeals did briefy observe that the trial court's
order recommending relief had omitted the “ `reasonable probability' ” lan-
guage when reciting the Strickland prejudice standard. App. to Pet. for
Cert. 8, n. 2; cf. Strickland, 466 U. S., at 694 (a defendant “must show
that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different”). Even
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What little is evident from the proceeding below is that the
concurr
ing opinion's analysis of or conclusion regarding prej-
udice did not garner a majority of the Court of Criminal
Appeals.
6
Given that, the court may have concluded simply
that Andrus failed to demonstrate defcient performance
under the frst prong of Strickland (without even reaching
the second prong). For the reasons explained above, any
such conclusion is erroneous as a matter of law. See supra,
at 813–822.
The record before us raises a signifcant question whether
the apparent “tidal wave,” 7 Habeas Tr. 101, of “available
mitigating evidence, taken as a whole,” might have suffciently
“ `infuenced the jury's appraisal' of [Andrus'] moral culpabil-
ity” as to establish Strickland prejudice, Wiggins, 539 U. S.,
at 538 (quoting Williams, 529 U. S., at 398). (That is, at the
very least, whether there is a reasonable probability that
“at least one juror would have struck a different balance.”
Wiggins, 539 U. S., at 537.) That prejudice inquiry “neces-
sarily require[s] a court to `speculate' as to the effect of the
new evidence” on the trial evidence, “regardless of how much
or little mitigation evidence was presented during the initial
penalty phase.” Sears, 561 U. S., at 956; see also id., at 954
(“We have never limited the prejudice inquiry under Strick-
were there reason to set aside that “[t]rial judges are presumed to know
the law,” Lambrix v. Singletary, 520 U. S. 518, 532, n. 4 (1997) (internal
quotation marks omitted), the trial court's omission of the “reasonable
probability” language would at most suggest that it held Andrus to (and
found that Andrus had satisfed) a stricter standard of prejudice than that
set forth in Strickland.
6
The concurring opinion, moreover, seemed to assume that the preju-
dice inquiry here turns principally on how the facts of this case compare
to the facts in Wiggins. We note that we have never before equated what
was suffcient in Wiggins with what is necessary to establish prejudice.
Cf. Wiggins, 539 U. S., at 537–538 (“[T]he mitigating evidence in this case
is stronger, and the State's evidence in support of the death penalty far
weaker, than in Williams, where we found prejudice as the result of coun-
sel's failure to investigate and present mitigating evidence”); Williams,
529 U. S., at 399 (fnding such prejudice after applying AEDPA deference).
824 ANDR
US v. TEXAS
Alito, J., dissenting
land to cases in which there was only `little or no mitigation
e
vidence' presented”).
7
Given the uncertainty as to whether
the Texas Court of Criminal Appeals adequately conducted
that weighty and record-intensive analysis in the frst in-
stance, we remand for the Court of Criminal Appeals to ad-
dress Strickland prejudice in light of the correct legal prin-
ciples articulated above. See Cutter v. Wilkinson, 544 U. S.
709, 718, n. 7 (2005).
***
We conclude that Andrus has shown defcient performance
under the frst prong of Strickland, and that there is a sig-
nifcant question whether the Court of Criminal Appeals
properly considered prejudice under the second prong of
Strickland. We thus grant Andrus' petition for a writ of
certiorari and his motion for leave to proceed in forma pau-
peris, vacate the judgment of the Texas Court of Criminal
Appeals, and remand the case for the court to address the
prejudice prong of Strickland in a manner not inconsistent
with this opinion.
It is so ordered.
Justice Alito, with whom Justice Thomas and Justice
Gorsuch join, dissenting.
The Court clears this case off the docket, but it does so on
a ground that is hard to take seriously. According to the
Court, “[i]t is unclear whether the Court of Criminal Appeals
considered Strickland prejudice at all.” Ante, at 822; see
Strickland v. Washington, 466 U. S. 668 (1984). But that
7
The dissent trains its attention on the aggravating evidence actually
presented at trial. Post, at 828–830; but see Sears, 561 U. S., at 956
(Strickland prejudice inquiry “will necessarily require a court to `specu-
late' as to the effect of the new evidence” on the trial evidence); 561 U. S.,
at 956 (“A proper analysis of prejudice under Strickland would have taken
into account the newly uncovered evidence . . . , along with the mitigation
evidence introduced during [the] penalty phase trial”).
Cite
as: 590 U. S. 806 (2020)
825
Alito, J., dissenting
reading is squarely contradicted by the opinion of the Court
of
Criminal Appeals (CCA), which said explicitly that An-
drus failed to show prejudice:
“[Andrus] fails to meet his burden under Strickland v.
Washington, 466 U. S. 668 (1984), to show by a prepon-
derance of the evidence that his counsel's representation
fell below an objective standard of reasonableness and
that there was a reasonable probability that the result
of the proceedings would have been different, but for
counsel's defcient performance.” App. to Pet. for
Cert. 7–8 (emphasis added).
Not only does the CCA opinion contain this express state-
ment, but it adds that the trial court did not heed Strick-
land's test for prejudice. See App. to Pet. for Cert. 8, n. 2
(“[T]hroughout its fndings, the trial court misstates the
Strickland prejudice standard by omitting the standard's
`reasonable probability' language”). And the record clearly
shows that the trial court did not apply that test to Andrus's
claim. See id., at 36–37. A majority of this Court cannot
seriously think that the CCA pointed this out and then de-
clined to reach the issue of prejudice.
How, then, can the Court get around the unmistakable evi-
dence that the CCA decided the issue of prejudice? It be-
gins by expressing doubt about the meaning of the critical
sentence reproduced above. According to the Court, that
sentence “does not conclusively reveal whether [the CCA]
determined . . . that Andrus had failed to demonstrate preju-
dice under Strickland's second prong.” Ante, at 822. It is
hard to write a more conclusive sentence than “[Andrus] fails
to meet his burden under Strickland v. Washington, 466
U. S. 668 (1984), to show by a preponderance of the evidence
. . . that there was a reasonable probability that the result of
the proceedings would have been different, but for counsel's
defcient performance.” App. to Pet. for Cert. 7–8. Per-
826 ANDR
US v. TEXAS
Alito, J., dissenting
haps the Court thinks the CCA should have used CAPITAL
LETTERS
or bold type. Or maybe it should have added:
“And we really mean it!!!”
Not only does the Court express doubt that the CCA
reached the prejudice prong of Strickland, but the Court is
not sure that the CCA decided even the performance prong.
See ante, at 822 (“Its one-sentence denial of Andrus' Strick-
land claim . . . does not conclusively reveal whether it deter-
mined that Andrus had failed to demonstrate defcient per-
formance under Strickland's frst prong ”). The Court may
feel it necessary to make that statement because the CCA
disposed of both prongs in the sentence quoted above. So if
that sentence is not suffcient to show that the CCA reached
the prejudice prong, there is no better reason for thinking
that it decided the performance prong. But if the Court
really thinks that the CCA did not decide the performance
issue, why does it treat that issue differently from the preju-
dice issue? Why does it decide the performance question in
the frst instance? Are we now a court of “frst view” and
not, as we have often stressed, a “court of review”? See,
e. g., McLane Co. v. EEOC, 581 U. S. 72, 85 (2017). The
Court's disparate treatment of the two parts of the CCA's
dispositive sentence shows that the Court is only selec-
tively skeptical.
The Court gives two reasons for doubting that the CCA
reached the issue of prejudice, but both are patent make-
weights. First, the Court notes that the CCA's per curiam
opinion, unlike the concurring opinion, did not provide rea-
sons for fnding that prejudice had not been shown. But the
failure to explain is not the same as failure to decide. To-
day's “tutelary remand” is a misuse of our supervisory au-
thority and a waste of our and the CCA's time. Lawrence
v. Chater, 516 U. S. 163, 185 (1996) (Scalia, J., dissenting).
Second, the Court observes that the concurring opinion,
which discussed the question of prejudice at some length,
was joined by only four of the CCA's nine judges. See App.
to Pet. for Cert. 9–21 (opinion of Richardson, J., joined by
Cite
as: 590 U. S. 806 (2020)
827
Alito, J., dissenting
Keller, P. J., and Hervey and Slaughter, JJ.). But that does
not
show that the other fve declined to decide the question
of prejudice. The most that one might possibly infer is that
these judges might not have agreed with everything in the
concurrence, but even that is by no means a certainty. So
the Court's reading of the decision below is contrary to the
plain language of the decision and is not supported by any
reason worth mentioning.
If that were not enough, the Court's reading is belied by
Andrus's interpretation of the CCA decision. Andrus no-
where claims that the CCA failed to decide the issue of prej-
udice. On the contrary, the petition faults the CCA for pro-
viding “a truncated `no prejudice' analysis,” not for failing to
decide the prejudice issue at all. Pet. for Cert. ii (emphasis
added). Indeed, the main argument in the petition is that
we should modify Strickland because courts are too often
rejecting ineffective-assistance claims for lack of prejudice.
That argument would make no sense if the CCA had not
decided the prejudice issue, something that is never even
implied by Andrus's counsel in either the 40-page petition or
the 11-page reply.
Not only did the CCA clearly hold that Andrus failed to
show prejudice, but there was strong support for that hold-
ing in the record. To establish prejudice, Andrus must
show “a substantial, not just conceivable, likelihood” that one
of the jurors who unanimously agreed on his sentence would
not have done so if his trial counsel had presented more miti-
gation evidence. Cullen v. Pinholster, 563 U. S. 170, 189
(2011) (internal quotation marks omitted). This inquiry fo-
cuses not just on the newly offered mitigation evidence, but
on the likelihood that this evidence would have overcome the
State's aggravation evidence. See, e. g., Sears v. Upton, 561
U. S. 945, 955–956 (2010) (per curiam). While providing a
lengthy (and one-sided) discussion of Andrus's mitigation evi-
dence, the Court never acknowledges the volume of evidence
that Andrus is prone to brutal and senseless violence and
presents a serious danger to those he encounters whether in
828 ANDR
US v. TEXAS
Alito, J., dissenting
or out of prison. Instead, the Court says as little as possible
about
Andrus's violent record.
For example, here is what the Court says about the crimes
for which he was sentenced to death: “Not long after Andrus'
release from prison at age 18, Andrus attempted the fatal
carjacking that resulted in his capital convictions.” Ante,
at 812.
Here is what the record shows. According to Andrus's
confession, he left his apartment one evening, “ `amped up'
on embalming fuid [PCP] mixed with marijuana, cocaine,
and beer,” and looked for a car to “go joy-riding.” No. AP–
76,936, p. 5 (CCA, Mar. 23, 2016) (Reh'g Op.); see also 54 Tr.,
State Exh. 147 (Andrus's confession). In the parking lot of
a supermarket, he saw Avelino Diaz drop off his wife, Patty,
in front of the store. By his own admission, Andrus ap-
proached Diaz's car with a gun drawn, but he abandoned
the carjacking attempt when he saw that the car had a
stick shift, which he could not drive. Alerted by a store
employee, Patty Diaz ran out of the store and found her
husband lying by the side of the car with a bullet wound
in the back of his head. He was subsequently pronounced
dead.
After killing Avelino Diaz, Andrus approached a car with
two occupants, whom Andrus described as an “old man and
old wom[a]n.” Id., at 2. Andrus fred three shots into the
car. The frst went through the open driver's side window
and hit the passenger, Kim-Phuong Vu Bui, in the head. As
the car sped away, Andrus fred a second shot, which entered
the back driver's side window, and a third shot, which “en-
tered at an angle indicating that the shot originated from a
farther distance.” Reh'g Op. 3. One of these bullets hit the
driver, Steve Bui, in the back. Seeing that blood was com-
ing out of his wife's mouth, Steve drove her to a hospital and
carried her inside, where she died.
These senseless murders in October 2008 were not An-
drus's frst crimes. In 2004, he was placed on probation for
a drug offense, but just two weeks later, he committed an
Cite
as: 590 U. S. 806 (2020)
829
Alito, J., dissenting
armed robbery. Andrus and two others followed a woman
to
her parents' home, where they held her at gunpoint and
took her purse and gym bag. The woman identifed Andrus
as the perpetrator who held the gun. Id., at 7.
1
For this offense, Andrus was sent to a juvenile facility
where he showed such “ `signifcant assaultive behavior' to-
ward other youths and staff ” that he was eventually trans-
ferred to an adult facility. App. to Pet. for Cert. 11.
2
Shortly after his release, he again violated his supervisory
conditions and was returned to the adult facility. Ibid.
When he was released again, he committed an armed rob-
bery of a dry-cleaning establishment. Around 7 a.m. one
morning, he entered the business and chased the owner,
Tuan Tran, to the back. He beat Tran and threatened him
with a knife until Tran gave him money. Reh'g Op. 7–8.
Andrus's ex-girlfriend told the police that he confessed to
this robbery. 8 Habeas Tr. 14.
3
In addition, Tran picked
1
The Court credits Andrus's version of the event and repeats his
allegation that he merely served as a “lookout.” Ante, at 807, 811–812.
As the CCA explained on direct review, however, the victim matched
Andrus's clothing to the gunman's. See Reh'g Op. 7; see also 46 Tr. 23–25
(arresting offcer explaining that only Andrus's clothing matched the sus-
pect description).
2
Just as the Court provides a one-sided summary of Andrus's mitigation
evidence, it quibbles at every possible turn with the aggravation evidence.
Thus, the Court states that Andrus's behavioral problems at this facility
“were notably mild.” Ante, at 819. But the witness on whose testimony
the Court relies admitted that Andrus's record included multiple threats
and assaults against staff and other youths. 4 Habeas Tr. 202–204. And
the record shows that Andrus had needed to be removed from general
population 77 times. 10 id., Pl. Exh. 28. The responsible corrections of-
fcials obviously did not think this record was “notably mild,” because it
prompted them to transfer him to an adult facility.
3
Although Andrus's ex-girlfriend later signed an affdavit contradicting
herself, 41 id., Def. Exh. 139, pp. 1–2, she admitted at the habeas hearing—
after learning that she had been recorded—that she indeed relayed this
information, 8 id., at 48–49. Andrus's counsel tried to withdraw her aff-
davit from evidence, having “learned information that caused [them] to
doubt [her] reliability.” Id., at 5.
830 ANDR
US v. TEXAS
Alito, J., dissenting
Andrus out of a photo array, 46 Tr. 66, 69–70,
4
and
testifed
at trial that the robber was in the courtroom, id., at 59–60,
but he was too afraid to point at Andrus, ibid. Less than
two months after this crime, Andrus murdered Avelino Diaz
and Kim-Phuong Vu Bui. App. to Pet. for Cert. 11.
While awaiting trial for those murders, Andrus carried out
a reign of terror in jail. He assaulted another detainee, at-
tacked and injured corrections offcers, threw urine in an of-
fcer's face, repeatedly made explicit threats to kill offcers
and staff, fooded his cell and threw excrement on the walls,
and engaged in other disruptive acts. Id., at 11–13. Also
while awaiting trial for murder, he had the words “murder
weapon” tattooed on his hands and a smoking gun tattooed
on his forearm. 51 Tr. 65–66, 68.
In sum, the CCA assessed the issue of prejudice in light of
more than the potentially mitigating evidence that the Court
marshals for Andrus. The CCA had before it strong aggra-
vating evidence that Andrus wantonly killed two innocent
victims and shot a third; that he committed other violent
crimes; that he has a violent, dangerous, and unstable charac-
ter; and that he is a threat to those he encounters.
The CCA has already held once that Andrus failed to es-
tablish prejudice. I see no good reason why it should be
required to revisit the issue.
4
The Court again credits Andrus's allegation that he did not commit
this robbery. See ante, at 819–820. In support, the Court points to what
Tran told police shortly after being beaten and to supposed problems with
the photo array from which Tran frst identifed Andrus. But the Court
cannot dispute that Andrus's ex-girlfriend linked him to the robbery or
that Tran identifed him twice. Nor did the detective to whom the Court
refers in fact testify that “the inclusion of Andrus' photograph in a belated
photo array . . . gave rise to numerous reliability concerns.” Ante, at 820;
see 8 Habeas Tr. 31 (testifying, in response to habeas counsel's repeated
questions whether delays affect the reliability of identifcations, only that
they “can”); id., at 42–44 (affrming the bases for Andrus's inclusion).
Reporter’s Note
Orders commencing with June 1, 2020, begin with page 970. The pre-
ceding orders in 590 U. S., from April 20, 2020, through May 29, 2020, were
reported in Part 1, at 901–969. These page numbers are the same as they
will be in the bound volume, thus making the permanent citations avail-
able upon publication of the preliminary prints of the United States
Reports.
970 OCTOBER
TERM, 2019
590 U. S.
June 1, 2020
C
ertiorari Granted—Vacated and Remanded
No. 19–7007. Furlow v. United States. C. A. 4th Cir. Mo-
tion of petitioner for leave to proceed in forma pauperis granted.
Certiorari granted, judgment vacated, and case remanded for fur-
ther consideration in light of Rehaif v. United States, 588 U. S.
225 (2019). Reported below: 928 F. 3d 311.
Miscellaneous Orders
No. 19M139. Roberson v. Illinois. Motion to direct the
Clerk to fle petition for writ of certiorari out of time denied.
No. 19–7756. In re Deville; and
No. 19–8136. In re Crawford. Petitions for writs of manda-
mus denied.
Certiorari Denied
No. 19–277. HSBC Holdings PLC et al. v. Picard et al.
C. A. 2d Cir. Certiorari denied. Reported below: 917 F. 3d 85.
No. 19–737. Douse v. United States et al.; and
No. 19–982. Bryant et al. v. United States et al. C. A.
11th Cir. Certiorari denied. Reported below: 774 Fed. Appx. 564.
No. 19–767. National Association for Gun Rights, Inc. v.
Mangan, Commissioner of Political Practices for the
State of Montana, et al. C. A. 9th Cir. Certiorari denied.
Reported below: 933 F. 3d 1102.
No. 19–774. Marsh v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 783 Fed. Appx. 282.
No. 19–782. Kelerchian v. United States. C. A. 7th Cir.
Certiorari denied. Reported below: 937 F. 3d 895.
No. 19–906. Antico v. United States. C. A. 11th Cir. Cer-
tiorari denied. Reported below: 934 F. 3d 1278.
No. 19–1000. Heon-Cheol Chi v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 936 F. 3d 888.
No. 19–1023. Morgan, Warden v. White; and
No. 19–8117. White v. Morgan, Warden. C. A. 6th Cir.
Certiorari denied. Reported below: 940 F. 3d 270.
ORDERS 971
590 U. S.
J
une 1, 2020
No. 19–1044. Batista Ferreira v. Barr, Attorney Gen-
eral.
C. A. 1st Cir. Certiorari denied. Reported below: 939
F. 3d 44.
No. 19–1052. Dewberry v. United States. C. A. 8th Cir.
Certiorari denied. Reported below: 936 F. 3d 803.
No. 19–1066. Comcast Corp. et al. v. Tillage et al. C. A.
9th Cir. Certiorari denied. Reported below: 772 Fed. Appx. 569.
No. 19 –1078. AT&T Mobility LLC et al. v. Mc Ardle.
C. A. 9th Cir. Certiorari denied. Reported below: 772 Fed.
Appx. 575.
No. 19–1165. Willis v. Tower Loan of Mississippi, LLC.
C. A. 5th Cir. Certiorari denied. Reported below: 944 F. 3d 577.
No. 19–1185. Wilding et al. v. DNC Services Corp. et al.
C. A. 11th Cir. Certiorari denied. Reported below: 941 F. 3d
1116.
No. 19–6939. Hunt v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 774 Fed. Appx. 806.
No. 19–7043. Toth v. Inch, Secretary, Florida Depart-
ment of Corrections, et al. C. A. 11th Cir. Certiorari de-
nied. Reported below: 778 Fed. Appx. 624.
No. 19–7127. Tomlin v. Patterson, Warden. C. A. 11th Cir.
Certiorari denied.
No. 19–7361. Shevtsov v. United States;
No. 19–7368. Kuzmenko v. United States; and
No. 19–7729. New v. United States. C. A. 9th Cir. Certio-
rari denied. Reported below: 775 Fed. Appx. 272.
No. 19–7481. Murphy v. Texas. Ct. Crim. App. Tex. Cer-
tiorari denied.
No. 19–7706. Adams v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 788 Fed. Appx. 198.
No. 19–7738. H. K. V. v. Florida Department of Children
and Families et al. Sup. Ct. Fla. Certiorari denied.
No. 19–7739. H. K. V. v. Florida Department of Children
and Families et al. Sup. Ct. Fla. Certiorari denied.
972 OCTOBER
TERM, 2019
June 1, 2020 590 U. S.
No. 19–7751. Thrasher v. Alabama. Ct. Crim. App. Ala.
Cer
tiorari denied.
No. 19–7799. Baker v. Florida. Dist. Ct. App. Fla., 2d Dist.
Certiorari denied.
No. 19–8095. McCants v. Hansen et al. C. A. 7th Cir.
Certiorari denied.
No. 19–8101. Mamone v. Plows Burch. Ct. Sp. App. Md.
Certiorari denied. Reported below: 242 Md. App. 766 and 774.
No. 19–8112. Ali v. Oberlander, Superintendent, State
Correctional Institution at Forest, et al. C. A. 3d Cir.
Certiorari denied.
No. 19–8114. White v. Southeast Michigan Surgical Hos-
pital et al. Ct. App. Mich. Certiorari denied.
No. 19–8116. White v. Matthews et al. Ct. App. Mich.
Certiorari denied.
No. 19–8118. Wisconsin ex rel. Wren v. Richardson, War-
den. Sup. Ct. Wis. Certiorari denied. Reported below: 2019
WI 110, 389 Wis. 2d 516, 936 N. W. 2d 587.
No. 19–8119. Williams v. Inch, Secretary, Florida De-
partment of Corrections. Sup. Ct. Fla. Certiorari denied.
No. 19–8123. Brown aka Ankh El v. Superior Court of
Indiana, Marion County, et al. C. A. 7th Cir. Certiorari
denied.
No. 19–8128. Buckner v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
sion. C. A. 5th Cir. Certiorari denied. Reported below: 945
F. 3d 906.
No. 19–8132. Chest v. Bald, Judge, Circuit Court of Illi-
nois, Stephenson County. Sup. Ct. Ill. Certiorari denied.
No. 19– 8140. Dennerlein v. Garman, Superintendent,
State Correctional Institution at Rockview, et al. C. A.
3d Cir. Certiorari denied.
No. 19–8141. Cowan v. Gastelo, Warden. C. A. 9th Cir.
Certiorari denied. Reported below: 775 Fed. Appx. 381.
ORDERS 973
590 U. S.
J
une 1, 2020
No. 19–8142. Sarhan et ux. v. H & H Investors, Inc.
D
ist. Ct. App. Fla., 3d Dist. Certiorari denied.
No. 19–8143. Douce Al Dey v. Brevard County Tax Col-
lector et al. Dist. Ct. App. Fla., 5th Dist. Certiorari denied.
No. 19 – 8150. Jackson v. Kansas City Kansas Public
Schools Unied School District No. 500. C. A. 10th Cir.
Certiorari denied. Reported below: 799 Fed. Appx. 586.
No. 19–8152. Ankh-El, aka Brown v. Carter et al. C. A.
7th Cir. Certiorari denied.
No. 19–8167. Talbert v. Carney et al. C. A. 3d Cir. Cer-
tiorari denied.
No. 19–8168. Justise v. Indiana. Ct. App. Ind. Certiorari
denied. Reported below: 129 N. E. 3d 839.
No. 19–8177. Keys v. Florida. Dist. Ct. App. Fla., 2d Dist.
Certiorari denied.
No. 19–8180. M. H. v. Indiana Department of Child Serv-
ices. Sup. Ct. Ind. Certiorari denied. Reported below: 134
N. E. 3d 41.
No. 19–8258. Goree v. Michigan Parole Board. C. A. 6th
Cir. Certiorari denied.
No. 19–8287. Toure v. California Department of Correc-
tions and Rehabilitation. C. A. 9th Cir. Certiorari denied.
Reported below: 773 Fed. Appx. 916.
No. 19–8304. McVay v. Illinois. App. Ct. Ill., 3d Dist. Cer-
tiorari denied. Reported below: 2019 IL App (3d) 150821, 139
N. E. 3d 648.
No. 19–8326. Martin v. Maryland. Ct. Sp. App. Md. Cer-
tiorari denied. Reported below: 242 Md. App. 775.
No. 19–8344. Combs v. Nevada et al. C. A. 9th Cir. Cer-
tiorari denied.
No. 19–8353. Stokes v. Indiana. Ct. App. Ind. Certiorari
denied.
No. 19–8366. Cabezas v. United States. C. A. 11th Cir.
Certiorari denied.
974 OCTOBER
TERM, 2019
June 1, 2020 590 U. S.
No. 19–8380. Monds v. United States. C. A. 8th Cir. Cer-
ti
orari denied. Reported below: 945 F. 3d 1049.
No. 19–8381. O’Donnell v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 785 Fed. Appx. 182.
No. 19–8382. Ewing v. Nevada. Sup. Ct. Nev. Certiorari
denied. Reported below: 135 Nev. 641, 452 P. 3d 933.
No. 19–8385. Lopez Quintero v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 797 Fed. Appx. 335.
No. 19–8387. Caldwell v. United States. C. A. 8th Cir.
Certiorari denied.
No. 19–8390. Do Kyun Kim v. United States. C. A. 5th
Cir. Certiorari denied. Reported below: 791 Fed. Appx. 490.
No. 19–8391. Coffman v. Illinois. App. Ct. Ill., 4th Dist.
Certiorari denied. Reported below: 2019 IL App (4th) 170115–U.
No. 19–8393. Tucker v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 795 Fed. Appx. 963.
No. 19–8399. Tolliver v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 949 F. 3d 244.
No. 19–8400. Nichols v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 802 Fed. Appx. 172.
No. 19–8401. Lewis v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 797 Fed. Appx. 744.
No. 19–8411. Burton v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 802 Fed. Appx. 896.
No. 19 – 8412. Mc Lean v. United States. C. A. 2d Cir.
Certiorari denied.
No. 19 – 8415. Stanley v. United States. C. A. 2d Cir.
Certiorari denied.
No. 19–8416. Williams v. United States. C. A. 10th Cir.
Certiorari denied. Reported below: 799 Fed. Appx. 657.
No. 19–8423. Gies v. Ohio. Ct. App. Ohio, 1st App. Dist.,
Hamilton County. Certiorari denied. Reported below: 2019-
Ohio-4249, 146 N. E. 3d 1277.
No. 19–831. Jarchow et al. v. State Bar of Wisconsin
et al. C. A. 7th Cir. Certiorari denied.
ORDERS 975
590 U. S.
Thomas,
J., dissenting
Justice Thomas, w ith whom Justice Gorsuch joi ns,
dissenti
ng.
A majority of States, including Wisconsin, have “integrated
bars.” Unlike voluntary bar associations, integrated or manda-
tory bars require attorneys to join a state bar and pay compulsory
dues as a condition of practicing law in the State. Petitioners
are practicing lawyers in Wisconsin who allege that their Wiscon-
sin State Bar dues are used to fund “advocacy and other speech
on matters of intense public interest and concern.” App. to Pet.
for Cert. 10. Among other things, petitioners allege that the
Wisconsin State Bar has taken a position on legislation prohibit-
ing health plans from funding abortions, legislation on felon voting
rights, and items in the state budget. Petitioners' First Amend-
ment challenge to Wisconsin's integrated bar arrangement is fore-
closed by Keller v. State Bar of Cal., 496 U. S. 1 (1990), which
this petition asks us to revisit. I would grant certiorari to ad-
dress this important question.
In Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), the Court
held that a law requiring public employees to pay mandatory
union dues did not violate the freedom of speech guaranteed by
the First Amendment, id., at 235–236. In Keller, the Court ex-
tended Abood to integrated bar dues based on an “analogy be-
tween the relationship of the State Bar and its members, on the
one hand, and the relationship of employee unions and their mem-
bers, on the other.” 496 U. S., at 12. Applying Abood, the Court
held that “[t]he State Bar may . . . constitutionally fund activities
germane to [its] goals” of “regulating the legal profession and
improving the quality of legal services” using “the mandatory
dues of all members.” 496 U. S., at 13–14.
Two Terms ago, we overruled Abood in Janus v. State, County,
and Municipal Employees, 585 U. S. 878 (2018). We observed
that “Abood was poorly reasoned,” that “[i]t has led to practical
problems and abuse,” and that “[i]t is inconsistent with other
First Amendment cases and has been undermined by more recent
decisions.” Id., at 886. After considering arguments for retain-
ing Abood that sounded in both precedent and original meaning,
we held that “States and public-sector unions may no longer ex-
tract agency fees from nonconsenting employees.” 585 U. S.,
at 929.
Our decision to overrule Abood casts signifcant doubt on Kel-
ler. The opinion in Keller rests almost entirely on the framework
976 OCTOBER
TERM, 2019
June 1, 8, 2020 590 U. S.
of Abood. Now that Abood is no longer good law, there is effec-
tively
nothing left supporting our decision in Keller. If the rule
in Keller is to survive, it would have to be on the basis of new
reasoning that is consistent with Janus.*
Respondents argue that our review of this case would be hin-
dered because it was dismissed on the pleadings. But any chal-
lenge to our precedents will be dismissed for failure to state a
claim, before discovery can take place. And in any event, a rec-
ord would provide little, if any, beneft to our review of the purely
legal question whether Keller should be overruled.
Short of a constitutional amendment, only we can rectify our
own erroneous constitutional decisions. We have admitted that
Abood was erroneous, and Abood provided the foundation for Kel-
l e r. In l ight of these developments, we shou ld reexami ne
whether Keller is sound precedent. Accordingly, I respectfully
dissent from the denial of certiorari.
No. 19–8156. Stancu v. Hyatt Corp. C. A. 5th Cir. Certio-
rari denied. Justice Breyer took no part in the consideration
or decision of this petition. Reported below: 791 Fed. Appx. 446.
Rehearing Denied
No. 19–690. Neville v. Dhillon, Chair, Equal Employ-
ment Opportunity Commission, et al., 589 U. S. 1305;
No. 19–994. Hill v. Johnson et al., 589 U. S. 1305;
No. 19–7354. Martin v. Kelley, Director, Arkansas De-
partment of Correction, 589 U. S. 1282;
No. 19–7496. Stroner v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
sion, 589 U. S. 1298; and
No. 19–7708. Aljindi v. United States et al., 589 U. S.
1308. Petitions for rehearing denied.
June 8, 2020
Certiorari Granted—Vacated and Remanded
No. 19–623. Shrinivas Sugandhalaya LLP v. Setty et al.
C. A. 9th Cir. Certiorari granted, judgment vacated, and case
*Respondents resist this conclusion by citing Harris v. Quinn, 573 U. S.
616 (2014), which predates Janus. But all we said in Harris was that “a
refusal to extend Abood” would not “call into question” Keller. Harris, 573
U. S., at 655. Now that we have overruled Abood, Keller has unavoidably
been called into question.
ORDERS 977
590 U. S.
J
une 8, 2020
remanded for further consideration in light of GE Energy Power
C
onversion France SAS v. Outokumpu Stainless USA, LLC, 590
U. S. 432 (2020). Reported below: 771 Fed. Appx. 456.
No. 19–5990. Vogel v. United States. C. A. 5th Cir. Mo-
tion of petitioner for leave to proceed in forma pauperis granted.
Certiorari granted, judgment vacated, and case remanded for fur-
ther consideration in light of Banister v. Davis, 590 U. S. 504
(2020).
Certiorari Dismissed
No. 19–8153. Brooks v. Schwartz et al. C. A. 10th Cir.
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). Justice Gorsuch took no part in
the consideration or decision of this motion and this petition.
Miscellaneous Orders
No. 19M140. Marin Gutierrez v. United States. Motion
to direct the Clerk to fle petition for writ of certiorari out of
time denied.
No. 18–1401. Peterson v. Linear Controls, Inc. C. A. 5th
Cir. Joint motion to defer consideration of petition for writ of
certiorari granted.
No. 19–631. Barr, Attorney General, et al. v. American
Association of Political Consultants, Inc., et al. C. A.
4th Cir. [Certiorari granted, 589 U. S. 1127.] Motion of ACA
International, Inc., for leave to fle brief as amicus curiae out of
time denied.
No. 19–7403. Shove v. Davis, Warden. C. A. 9th Cir. Mo-
tion of petitioner for reconsideration of order denying leave to
proceed in forma pauperis [589 U. S. 1273] denied.
No. 19–8179. In re Nichols. Petition for writ of habeas cor-
pus denied.
978 OCTOBER
TERM, 2019
June 8, 2020 590 U. S.
No. 19–8475. In re Watson. 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.
No. 19–8205. In re Brunson. Petition for writ of manda-
mus denied.
Certiorari Granted
No. 19 – 863. Niz-Chavez v. Barr, At torney General.
C. A. 6th Cir. Certiorari granted. Reported below: 789 Fed.
Appx. 523.
Certiorari Denied
No. 19–685. McGregor v. Texas. Ct. Crim. App. Tex. Cer-
tiorari denied.
No. 19–747. Lopez Gamero v. Barr, Attorney General.
C. A. 7th Cir. Certiorari denied. Reported below: 929 F. 3d 464.
No. 19–855. Lugo v. United States. C. A. 11th Cir. Cer-
tiorari denied. Reported below: 789 Fed. Appx. 766.
No. 19–875. OTO, L. L. C. v. Kho et al. Sup. Ct. Cal. Cer-
tiorari denied. Reported below: 8 Cal. 5th 111, 447 P. 3d 680.
No. 19–889. Kaufman County, Texas, et al. v. Winzer,
Individually and on Behalf of the Statutory Beneciar-
ies of Winzer, et al.; and
No. 19–1042. Winzer, Individually and on Behalf of the
Statutory Beneciaries of Winzer v. Kaufman County,
Texas, et al. C. A. 5th Cir. Certiorari denied.
No. 19–901. Devon Drive Lionville, LP, et al. v. Parke
Bank et al. C. A. 3d Cir. Certiorari denied. Reported below:
791 Fed. Appx. 301.
No. 19–997. Williky v. Securities and Exchange Commis-
sion. C. A. 7th Cir. Certiorari denied. Reported below: 942
F. 3d 389.
No. 19–1054. Pike v. Gross, Warden. C. A. 6th Cir. Certio-
rari denied. Reported below: 936 F. 3d 372.
No. 19–1069. Takeda Pharmaceutical Co. Ltd. et al. v.
Painters and Allied Trades District Council 82 Health
ORDERS 979
590 U. S.
J
une 8, 2020
Care Fund et al. C. A. 9th Cir. Certiorari denied. Reported
below:
943 F. 3d 1243.
No. 19–1070. Olson v. Pennsylvania. Sup. Ct. Pa. Certio-
rari denied. Reported below: 655 Pa. 511, 218 A. 3d 863.
No. 19–1084. Cramer v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 789 Fed. Appx. 153.
No. 19–1180. Radcliffe et al. v. Experian Information
Solutions, Inc., et al. C. A. 9th Cir. Certiorari denied. Re-
ported below: 794 Fed. Appx. 605.
No. 19–1182. Smith Land Co. et al. v. Herhold et al. Ct.
App. Ohio, 9th App. Dist., Summit County. Certiorari denied.
Reported below: 2019-Ohio-2418.
No. 19–1190. Sloan v. Sloan et al. Sup. Ct. S. C. Certio-
rari denied.
No. 19–1193. Wilkinson v. Commission for Lawyer Disci-
pline of the State Bar of Texas. Ct. App. Tex., 9th Dist.
Certiorari denied.
No. 19–1197. GwanJun Kim v. City of Ionia, Michigan,
et al. C. A. 6th Cir. Certiorari denied.
No. 19–1200. Elliott v. Ohio. Ct. App. Ohio, 5th App. Dist.,
Guernsey County. Certiorari denied. Reported below: 2019-
Ohio-4411.
No. 19–1205. Lucero v. Gordon et al. C. A. 10th Cir. Cer-
tiorari denied. Reported below: 786 Fed. Appx. 833.
No. 19–1219. Respect Washington v. Burien Communities
for Inclusion et al. Ct. App. Wash. Certiorari denied. Re-
ported below: 10 Wash. App. 2d 1013.
No. 19–1227. Kerns et al. v. Caterpillar, Inc. C. A. 6th
Cir. Certiorari denied. Reported below: 791 Fed. Appx. 568.
No. 19–1239. Jackson Ridge Rehabilitation and Care
et al. v. Meadows. Ct. App. Ohio, 5th App. Dist., Stark County.
Certiorari denied. Reported below: 2019-Ohio-2879.
No. 19–1240. Hubbard v. Missouri Department of Mental
Health. C. A. 8th Cir. Certiorari denied.
980 OCTOBER
TERM, 2019
June 8, 2020 590 U. S.
No. 19–1271. Collins v. Zolnier. Ct. App. Tex., 9th Dist.
Cer
tiorari denied.
No. 19–7076. Ponder v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 774 Fed. Appx. 625.
No. 19–7153. Johnson v. Missouri. Sup. Ct. Mo. Certio-
rari denied.
No. 19–7165. Macias-Macias v. United States. C. A. 5th
Cir. Certiorari denied.
No. 19–7451. Rogers v. California. Sup. Ct. Cal. Certio-
rari denied.
No. 19–7469. Palamarchuk v. United States. C. A. 9th
Cir. Certiorari denied.
No. 19–7472. Lewis v. United States. C. A. 5th Cir. Cer-
tiorari denied. Reported below: 782 Fed. Appx. 358.
No. 19–7637. Romero Cruz v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 777 Fed. Appx. 660.
No. 19–7872. Wilder v. Krebs. C. A. 4th Cir. Certiorari
denied. Reported below: 785 Fed. Appx. 198.
No. 19–8103. Rubi Ibarra v. Davis, Director, Texas De-
partment of Criminal Justice, Correctional Institutions
Division. C. A. 5th Cir. Certiorari denied. Reported below:
786 Fed. Appx. 420.
No. 19–8134. Ezell v. Hininger et al. C. A. 10th Cir.
Certiorari denied.
No. 19–8138. Woolsey-Ross v. Woolsey et al. Sup. Ct. Va.
Certiorari denied.
No. 19–8157. Richardson v. Moore. C. A. 5th Cir. Certio-
rari denied. Reported below: 772 Fed. Appx. 208.
No. 19–8159. Ramirez v. Allbaugh, Director, Oklahoma
Department of Corrections. C. A. 10th Cir. Certiorari de-
nied. Reported below: 771 Fed. Appx. 458.
No. 19–8164. Tolen v. Norman, Warden. C. A. 8th Cir.
Certiorari denied.
ORDERS 981
590 U. S.
J
une 8, 2020
No. 19–8165. Winters v. Industrial Commission of Ari-
zona
et al. Sup. Ct. Ariz. Certiorari denied.
No. 19–8170. Reynolds v. North Carolina. Ct. App. N. C.
Certiorari denied. Reported below: 263 N. C. App. 595, 822 S. E.
2d 330.
No. 19–8174. Mata v. Massachusetts Commission Against
Discrimination. App. Ct. Mass. Certiorari denied. Reported
below: 94 Mass. App. 1122, 123 N. E. 3d 802.
No. 19–8176. Lane v. Alabama. Ct. Crim. App. Ala. Cer-
tiorari denied.
No. 19–8182. Moss v. Arizona. Ct. App. Ariz. Certiorari
denied.
No. 19–8183. Nogales v. California. Ct. App. Cal., 4th
App. Dist., Div. 1. Certiorari denied.
No. 19–8185. Scott v. California. C. A. 9th Cir. Certio-
rari denied.
No. 19 – 8186. Staton v. Superintendent, Lee Correc-
tional Institution. C. A. 4th Cir. Cer ti orar i denied.
Reported below: 795 Fed. Appx. 204.
No. 19–8189. Ramos v. Connecticut. App. Ct. Conn. Cer-
tiorari denied. Reported below: 194 Conn. App. 594, 221 A. 3d
909.
No. 19–8195. Charles v. Bradshaw, Sheriff, Palm Beach
County, Florida. C. A. 11th Cir. Certiorari denied. Re-
ported below: 782 Fed. Appx. 991.
No. 19–8198. Adkins v. Whole Foods Market Group, Inc.
C. A. 4th Cir. Certiorari denied. Reported below: 795 Fed.
Appx. 217.
No. 19–8201. Householder v. Pennsylvania. Super. Ct.
Pa. Certiorari denied.
No. 19 – 8202. Gough v. Bankers Life & Casualty Co.
C. A. 4th Cir. Certiorari denied. Reported below: 781 Fed.
Appx. 251.
No. 19–8203. Hunt v. Ohio. Ct. App. Ohio, 8th App. Dist.,
Cuyahoga County. Certiorari denied. Reported below: 2019-
Ohio-4053, 145 N. E. 3d 1214.
982 OCTOBER
TERM, 2019
June 8, 2020 590 U. S.
No. 19–8206. Bush v. Ohio. Ct. App. Ohio, 7th App. Dist.,
Mahoni
ng County. Certiorari denied. Reported below: 2019-
Ohio-4082.
No. 19–8209. Foye v. North Carolina. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 775 Fed. Appx. 757.
No. 19– 8210. Gordon v. Holy Cross Hospital German-
town, Inc. C. A. 4th Cir. Certiorari denied. Reported below:
780 Fed. Appx. 84.
No. 19–8213. Rodriguez v. Johnson, Administrator, New
Jersey State Prison, et al. C. A. 3d Cir. Certiorari denied.
No. 19–8217. Jones v. McKee Foods Corp. C. A. 8th Cir.
Certiorari denied. Reported below: 786 Fed. Appx. 76.
No. 19–8226. Phipps v. Raemisch, Executive Director,
Colorado Department of Corrections, et al. C. A. 10th
Cir. Certiorari denied. Reported below: 795 Fed. Appx. 561.
No. 19–8227. Carrier v. Colorado. Ct. App. Colo. Certio-
rari denied.
No. 19–8245. Peters v. Illinois. App. Ct. Ill., 2d Dist.
Certiorari denied.
No. 19–8264. Gordon v. Arkansas. Sup. Ct. Ark. Certio-
rari denied. Reported below: 2019 Ark. 344, 588 S. W. 3d 342.
No. 19–8270. Johnson v. Florida Bar. Sup. Ct. Fla. Cer-
tiorari denied.
No. 19–8286. Tiger v. Florida. Dist. Ct. App. Fla., 4th Dist.
Certiorari denied. Reported below: 289 So. 3d 484.
No. 19–8297. O’Connell v. Zatecky. C. A. 7th Cir. Certio-
rari denied.
No. 19–8301. Mocco v. Shinn, Director, Arizona Depart-
ment of Corrections, et al. C. A. 9th Cir. Cer ti orari
denied.
No. 19–8311. Dalen v. Federal National Mortgage Asso-
ciation et al. Ct. App. S. C. Certiorari denied.
No. 19–8319. Watson v. Florida. Dist. Ct. App. Fla., 1st
Dist. Certiorari denied. Reported below: 288 So. 3d 1.
ORDERS 983
590 U. S.
J
une 8, 2020
No. 19–8322. Dixon v. Inch, Secretary, Florida Depart-
ment
of Corrections, et al. C. A. 11th Cir. Certiorari
denied.
No. 19–8362. Mitchell v. California. Ct. App. Cal., 2d
App. Dist., Div. 8. Certiorari denied.
No. 19–8363. McClain v. Sharp, Warden. C. A. 4th Cir.
Certiorari denied. Reported below: 788 Fed. Appx. 238.
No. 19–8371. Ham v. Williams, Warden. C. A. 4th Cir.
Certiorari denied. Reported below: 790 Fed. Appx. 543.
No. 19–8379. Burgess v. Illinois. App. Ct. Ill., 1st Dist.
Certiorari denied.
No. 19–8422. Glenn v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 786 Fed. Appx. 410.
No. 19–8431. Cruz-Lopez v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 792 Fed. Appx. 349.
No. 19–8437. Wilson v. Illinois. App. Ct. Ill., 1st Dist.
Certiorari denied.
No. 19–8440. O’Neal v. United States. C. A. 10th Cir.
Certiorari denied. Reported below: 796 Fed. Appx. 513.
No. 19–8447. Davis v. Thomas et al. C. A. 6th Cir. Certio-
rari denied.
No. 19–8451. Skinner v. Madden, Warden. C. A. 9th Cir.
Certiorari denied.
No. 19–8453. Dobbs v. United States. C. A. 11th Cir. Cer-
tiorari denied. Reported below: 802 Fed. Appx. 466.
No. 19–8463. Mayea-Pulido v. United States. C. A. 9th
Cir. Certiorari denied. Reported below: 946 F. 3d 1055.
No. 19–8464. Mitchell v. United States. C. A. 4th Cir.
Certiorari denied. Reported below: 791 Fed. Appx. 435.
No. 19–8468. Shufford v. United States. C. A. 6th Cir.
Certiorari denied.
No. 19–8469. Viengxay Chantharath v. United States.
C. A. 8th Cir. Certiorari denied.
984 OCTOBER
TERM, 2019
June 8, 2020 590 U. S.
No. 18–6172. Williams v. United States. C. A. 11th Cir.
Cer
tiorari denied. Reported below: 709 Fed. Appx. 676.
Justice Sotomayor, respecting the denial of certiorari.
I concur for the reasons set out in St. Hubert v. United States,
590 U. S. 984 (2020) (Sotomayor, J., statement respecting denial
of certiorari).
No. 18–7575. Valdes Gonzalez v. United States. C. A.
11th Cir. Certiorari denied. Reported below: 754 Fed. Appx.
915.
Justice Sotomayor, respecting the denial of certiorari.
I concur for the reasons set out in St. Hubert v. United States,
590 U. S. 984 (2020) (Sotomayor, J., statement respecting denial
of certiorari).
No. 19–5267. St. Hubert v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 909 F. 3d 335.
Statement of Justice Sotomayor respecting the denial of
certiorari.
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) imposes several restrictions on inmates seeking to fle
a second or successive habeas petition. See 28 U. S. C. §§ 2244,
2255. Among other things, the inmate must frst seek leave from
a court of appeals, which may not authorize a fling unless the
inmate demonstrates, as a prima facie matter, that the petition
will be based either on new evidence suffcient to establish that
no reasonable factfnder would have found the defendant guilty
or on a new constitutional rule made retroactive on collateral
review. §§ 2244(b)(2), (3); § 2255(h). An order denying authoriza-
tion “shall not be appealable and shall not be the subject of a
petition for rehearing or for a writ of certiorari.” § 2244(b)(3)(E).
But an inmate seeking such authorization from the Court of Ap-
peals for the Eleventh Circuit faces even greater hurdles.
Unlike its sister circuits, the Eleventh Circuit has interpreted
the relevant statutes to mandate an authorization decision within
30 days, leaving the court little time to consider a complex inmate
application. In re Williams, 898 F. 3d 1098, 1102 (2018) (Wilson,
J., concurring). Under Eleventh Circuit rules, the applicant must
confne his or her entire legal argument to a form on which “[f]ew
prisoners manage to squeeze more than 100 words.” 918 F. 3d
ORDERS 985
984
St
atement of Sotomayor, J.
1174, 1198 (2019) (Wilson, J., dissenting from denial of reh'g en
banc).
That limited form is the only submission that the court
typically accepts: The Government seemingly “never fles a re-
sponsive pleading,” and the court never grants oral argument.
Ibid. Surprisingly still, this perfunctory process affects future
claimants too, and not only those who fnd themselves in the
second or successive petition posture. The Eleventh Circuit has
published several of its orders denying permission to fle a second
or successive petition, and determined that all future litigants
(including those on direct appeal) are bound to the holdings of
these orders unless and until an en banc Eleventh Circuit or this
Court says otherwise. See 909 F. 3d 335, 346 (2018).
These factors make out a troubling tableau indeed. Most im-
portantly, they raise a question whether the Eleventh Circuit's
process is consistent with due process. The Eleventh Circuit has
not yet appeared to address a procedural due process claim head
on, so I will leave it to that court to consider the issue in the
frst instance in an appropriate case. In the meantime, nothing
prevents the Eleventh Circuit from reconsidering its practices to
make them fairer, more transparent, and more deliberative.
I
Petitioner Michael St. Hubert and several other petitioners
1
have had their direct appeals or initial habeas petitions decided
based on binding precedent issued through the above-mentioned
process. I describe the course faced by St. Hubert, as it is repre-
sentative of the process for many petitioners.
St. Hubert was convicted of two counts of brandishing a frearm
during a crime of violence under 18 U. S. C. § 924(c). The puta-
tive “crimes of violence” underlying these convictions were Hobbs
Act robbery and attempted Hobbs Act robbery, both in violation
of 18 U. S. C. § 951. Under § 924(c), St. Hubert faced increased
sentencing exposure and was sentenced to consecutive terms of
300 months' imprisonment on one count and 84 months' imprison-
ment on another.
1
Williams v. United States, No. 18–6172; Gonzalez v. United States,
No. 18–7575; Robinson v. United States, No. 19–5451; Mack v. United States,
No. 19–6355; Boston v. United States, No. 19–7148; Hunt v. United States,
No. 19–7506; Smith v. United States, No. 19–7527; Alston v. United States,
No. 19–7672.
986 OCTOBER
TERM, 2019
Statement of Sotomayor, J. 590 U. S.
On direct appeal, St. Hubert argued that his Hobbs Act crimes
were
not “crime[s] of violence” under § 924(c).
2
After many
twists and turns, the Eleventh Circuit disagreed. 909 F. 3d,
at 345–346. The Court of Appeals held both that the residual
clause, § 924(c)(3)(B), was not void for vagueness—a holding that
this Court rejected in United States v. Davis, 588 U. S. 445
(2019)—and that St. Huber t's Hobbs Act cr imes constituted
crimes of violence under the elements clause, § 924(c)(3)(A). In
holding that Hobbs Act robbery was a crime of violence under
the elements clause, the Eleventh Circuit noted that it “ha[d]
already” reached that conclusion in prior cases. 909 F. 3d, at 345.
But those precedents were not fully briefed direct appeals subject
to adversarial testing; instead, they were denials of applications
seeking authorization to fle second or successive habeas petitions.
Ibid. (citing In re Saint Fleur, 824 F. 3d 1337, 1340–1341 (CA11
2016), and In re Colon, 826 F. 3d 1301, 1305 (CA11 2016)). The
court rejected St. Hubert's objection that orders resolving such
applications should not be binding precedent. It declared that
published three-judge orders resolving second or successive ha-
beas petitions under § 2255 are “binding precedent on all subse-
quent panels of this Court, including those reviewing direct ap-
peals and collateral attacks, `unless and until [they are] overruled
or undermined to the point of abrogation by the Supreme Court
or by this court sitting en banc.' ” 909 F. 3d, at 346.
The Eleventh Circuit declined to rehear en banc St. Hubert's
case. 918 F. 3d, at 1174. Several judges dissented, explaining
the many “grave problems” with the Eleventh Circuit's perfunc-
tory practices surrounding applications to fle second or successive
habeas petitions. Id., at 1197 (opinion of Wilson, J). As one
judge explained, “[i]t is an aberration that a statute meant to
govern the treatment of inmates who seek to fle a second or
successive § 2255 motion now serves as a tool for this Court to
limit the review of prison sentences on direct appeal.” Id., at
2
Section 924(c) defnes a crime of violence as a felony that “has as an
element the use, attempted use, or threatened use of physical force against
the person or property of another,” § 924(c)(3)(A), or, “that by its nature,
involves a substantial risk that physical force against the person or property
of another may be used i n the course of committi ng the offense, ”
§ 924(c)(3)(B). The frst clause is known as the elements clause; the second
is known as the residual clause. See United States v. Davis, 588 U. S.
445, 449 (2019).
ORDERS 987
984
St
atement of Sotomayor, J.
1200–1201 (Martin, J., dissenting). In those judges' view, the
cour
t's procedures stymied its “ability to administer justice to the
people who come before” it. Id., at 1200.
II
“The courts of appeals have signifcant authority to fashion
rules to govern their own procedures.” Cardinal Chemical Co.
v. Morton Int'l, Inc., 508 U. S. 83, 99 (1993). Under Federal Rule
of Appellate Procedure 47(b), moreover, the Courts of Appeals
may adopt local rules and internal operating procedures consist-
ent with applicable federal law and “may regulate practice in a
particular case in any manner consistent with federal law, [the
FRAP], and local rules of the circuit.” But the Eleventh Circuit
is signifcantly out of step with other courts in how it approaches
applications seeking authorization to fle second or successive ha-
beas petitions.
First, compared to other Courts of Appeals, the Eleventh Cir-
cuit publishes far more of its orders denying authorization. From
2013 to 2018, the Eleventh Circuit published 45 such orders, while
all of the other Circuits combined published 80. Williams, 898
F. 3d, at 1102 (Wilson, J., concurring). Second, other Circuits
generally do not treat the relevant statute as mandating a deci-
sion within 30 days. Ibid. Finally, many other Circuits “often
consider briefng from the government before issuing a published
order; some also entertain oral argument from both parties.” Id.,
at 1103. The Eleventh Circuit, by contrast, does not grant oral
argument in any noncapital cases; nor does the court typically
receive individualized briefs from the petitioner or the Govern-
ment before decision. Ibid. Making matters worse, the court
often decides the merits of the habeas claims sought to be pre-
sented in the second or successive habeas petition, when the stat-
utory question at the preliminary authorization stage is simply
whether the applicant has “ma[de] a prima facie showing that the
application satisfes” the authorization requirements, § 2244(b)
(3)(C). See 918 F. 3d, at 1203 (Martin, J., dissenting from denial
of reh'g en banc).
3
3
In the certifcate-of-appealability (COA) context, where an inmate must
make a threshold “substantial showing of the denial of a constitutional
right,” § 2253(c)(2), this Court has cautioned that the threshold inquiry is
“not coextensive with a merits analysis” and that any court that “ `justif[ies]
its denial of a COA based on its adjudication of the actual merits . . . is in
988 OCTOBER
TERM, 2019
Statement of Sotomayor, J. 590 U. S.
In sum, the Eleventh Circuit represents the “worst of three
wor
lds.” Williams, 898 F. 3d, at 1104. It “publish[es] the most
orders,” “adhere[s] to a tight timeline that the other circuits have
disclaimed,” and “do[es] not ever hear from the government before
making [its] decision.” Ibid. In this context, important statu-
tory and constitutional questions are decided (for all future liti-
gants) on the basis of fewer than 100 words of argument. See
918 F. 3d, at 1196 (opinion of Wilson, J).
Notably, this Court has been wary of affording full precedential
weight to its own decisions based on so little argument. The
Court has explained, for example, that “summary action” in this
Court without merits briefng or oral argument “does not have
the same precedential effect as does a case decided upon full
briefng and argument.” Gray v. Mississippi, 481 U. S. 648, 651,
n. 1 (1987) (citing Edelman v. Jordan, 415 U. S. 651, 671 (1974)).
Further, as “part of our `deep-rooted historic tradition that every-
one should have his own day in court,' ” Richards v. Jefferson
County, 517 U. S. 793, 798 (1996), issue preclusion can bind a
nonparty to a suit only when certain minimum requirements, con-
sistent with due process, have been met, id., at 798–799; see also
Taylor v. Sturgell, 553 U. S. 880 (2008).
To be sure, this case rests not on issue preclusion but on stare
decisis, and implicates not this Court's practices but the preceden-
tial weight another court grants to its own opinions. But these
doctrines stem from a common concern: Decisions that bind other
litigants should, at the very least, be based on more than minimal
briefng. That animating principle, in turn, casts doubt on the
Eleventh Circuit's practices at issue here.
Before the Eleventh Circuit addresses a procedural due process
challenge to its practices, there are many steps that the court
could take to make its process fairer. It could, for example, so-
licit fuller briefng on those (relatively few) applications that pre-
sent open questions of law. It could even allow limited oral argu-
ment for the thorniest of questions presented through those
applications (especially questions that may affect many future liti-
gants). And it could afford precedential value only to those or-
essence deciding an appeal without jurisdiction,' ” Buck v. Davis, 580 U. S.
100, 115 (2017) (quoting Miller-El v. Cockrell, 537 U. S. 322, 336–337 (2003)).
This principle provides yet another reason, apart from the due process issues
that petitioners focus on, to doubt the Eleventh Circuit's practices.
ORDERS 989
590 U. S.
J
une 8, 2020
ders resulting from a robust process. Regardless of what the
Due
Process Clause requires, these procedures would better ac-
cord with basic fairness—and would ensure that those like St. Hu-
bert would not spend several more years in prison because of
artifcially imposed limitations like 100 words of argument.
No. 19–5451. Robinson v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 773 Fed. Appx. 520.
Justice Sotomayor, respecting the denial of certiorari.
I concur for the reasons set out in St. Hubert v. United States,
590 U. S. 984 (2020) (Sotomayor, J., statement respecting denial
of certiorari).
No. 19–6355. Mack v. United States. C. A. 11th Cir. Cer-
tiorari denied.
Justice Sotomayor, respecting the denial of certiorari.
I concur for the reasons set out in St. Hubert v. United States,
590 U. S. 984 (2020) (Sotomayor, J., statement respecting denial
of certiorari).
No. 19–7148. Boston v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 939 F. 3d 1266.
Justice Sotomayor, respecting the denial of certiorari.
I concur for the reasons set out in St. Hubert v. United States,
590 U. S. 984 (2020) (Sotomayor, J., statement respecting denial
of certiorari).
No. 19–7506. Hunt et al. v. United States. C. A. 11th Cir.
Certiorari denied. Reported below: 941 F. 3d 1259.
Justice Sotomayor, respecting the denial of certiorari.
I concur for the reasons set out in St. Hubert v. United States,
590 U. S. 984 (2020) (Sotomayor, J., statement respecting denial
of certiorari).
No. 19–7527. Smith v. United States. C. A. 11th Cir. Cer-
tiorari denied. Reported below: 793 Fed. Appx. 882.
Justice Sotomayor, respecting the denial of certiorari.
I concur for the reasons set out in St. Hubert v. United States,
590 U. S. 984 (2020) (Sotomayor, J., statement respecting denial
of certiorari).
990 OCTOBER
TERM, 2019
June 8, 15, 2020 590 U. S.
No. 19–7672. Alston v. United States. C. A. 11th Cir.
Cer
tiorari denied. Reported below: 795 Fed. Appx. 659.
Justice Sotomayor, respecting the denial of certiorari.
I concur for the reasons set out in St. Hubert v. United States,
590 U. S. 984 (2020) (Sotomayor, J., statement respecting denial
of certiorari).
No. 19–8166. Williams v. Naji et al. C. A. 3d Cir. Certio-
rari denied. Justice Alito took no part in the consideration or
decision of this petition.
No. 19–8467. McLendon v. United States. C. A. D. C. Cir.
Cer ti orar i denied. The Chief Justice took no par t in the
consideration or decision of this petition. Reported below: 944
F. 3d 255.
Rehearing Denied
No. 19–7692. R. A. S. v. Montgomery County Children
and Youth Services, 590 U. S. 909. Petition for rehearing
denied.
June 15, 2020
Certiorari Granted—Vacated and Remanded. (See also Andrus
v. Texas, 590 U. S. 806 (2020) (per curiam).)
No. 19–966. Emerson Electric Co. v. SIPCO, LLC. C. A.
Fed. Cir. Certiorari granted, judgment vacated, and case re-
manded for further consideration in light of Thryv, Inc. v. Click-
To-Call Technologies, LP, 590 U. S. 45 (2020). Reported below:
939 F. 3d 1301.
No. 19–7919. King v. United States. C. A. 9th Cir. Motion
of petitioner for leave to proceed in forma pauperis granted.
Certiorari granted, judgment vacated, and case remanded for fur-
ther consideration in light of Rehaif v. United States, 588 U. S.
225 (2019). Reported below: 771 Fed. Appx. 449.
Miscellaneous Orders
No. 19M141. Gutierrez v. California. Motion for leave to
fle petition for writ of certiorari with supplemental appendix
under seal granted.
No. 19M142. Mehdipour v. Denwalt-Hammond et al. Mo-
tion to direct the Clerk to fle petition for writ of certiorari out
of time denied.
ORDERS 991
590 U. S.
J
une 15, 2020
No. 153, Orig. Texas v. California. The Solicitor General
is
invited to fle a brief in this case expressing the views of the
United States.
No. 19–7495. Badruddoza v. Department of Homeland Se-
curity et al. C. A. 9th Cir. Motion of petitioner for reconsid-
eration of order denying leave to proceed in forma pauperis [589
U. S. 1292] denied.
No. 19–8536. In re Russell. 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.
Certiorari Granted
No. 19–897. Albence, Senior Ofcial Performing the
Duties of the Director of U. S. Immigration and Customs
Enforcement, et al. v. Guzman Chavez et al. C. A. 4th Cir.
Certiorari granted. Reported below: 940 F. 3d 867.
No. 19–963. Henry Schein, Inc. v. Archer & White Sales,
Inc. C. A. 5th Cir. Certiorari granted. Reported below: 935
F. 3d 274.
Certiorari Denied
No. 18–843. Pena et al. v. Horan, Director, California
Department of Justice Bureau of Firearms. C. A. 9th Cir.
Certiorari denied. Reported below: 898 F. 3d 969.
No. 18–913. Brennan v. Dawson et al.; and
No. 18–1078. Dawson et al. v. Brennan. C. A. 6th Cir.
Certiorari denied. Reported below: 752 Fed. Appx. 276.
No. 18–1272. Gould et al. v. Lipson, Chief of the Brook-
line Police Department, et al. C. A. 1st Cir. Certiorari
denied. Reported below: 907 F. 3d 659.
No. 19–114. Ciolek v. New Jersey. Super. Ct. N. J., App.
Div. Certiorari denied.
No. 19–404. Worman et al. v. Healey, Attorney General
of Massachusetts, et al. C. A. 1st Cir. Certiorari denied.
Reported below: 922 F. 3d 26.
No. 19–423. Malpasso et al. v. Pallozzi, Maryland Secre-
tary of State Police. C. A. 4th Cir. Certiorari denied. Re-
ported below: 767 Fed. Appx. 525.
992 OCTOBER
TERM, 2019
June 15, 2020 590 U. S.
No. 19–487. Culp et al. v. Raoul, Attorney General of
Illinois,
et al. C. A. 7th Cir. Certiorari denied. Reported
below: 921 F. 3d 646.
No. 19–656. Anderson v. City of Minneapolis, Minnesota,
et al. C. A. 8th Cir. Certiorari denied. Reported below: 934
F. 3d 876.
No. 19–676. Zadeh et al. v. Robinson et al. C. A. 5th Cir.
Certiorari denied. Reported below: 928 F. 3d 457.
No. 19–679. Corbitt v. Vickers. C. A. 11th Cir. Certiorari
denied. Reported below: 929 F. 3d 1304.
No. 19–704. Wilson et al. v. Cook County, Illinois, et al.
C. A. 7th Cir. Certiorari denied. Reported below: 937 F. 3d
1028.
No. 19–753. Hunter et al. v. Cole et al. C. A. 5th Cir.
Certiorari denied. Reported below: 935 F. 3d 444.
No. 19–757. Arizona Libertarian Party et al. v. Hobbs,
Arizona Secretary of State. C. A. 9th Cir. Certiorari de-
nied. Reported below: 925 F. 3d 1085.
No. 19–839. Eastern Oregon Mining Assn. et al. v. Ore-
gon Department of Environmental Quality et al. Sup.
Ct. Ore. Certiorari denied. Reported below: 365 Ore. 313, 445
P. 3d 251.
No. 19–899. West v. Wineld et al. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 931 F. 3d 978.
No. 19–970. Retail Ready Career Center, Inc. v. United
States. C. A. 5th Cir. Certiorari denied. Reported below: 942
F. 3d 655.
No. 19–1033. Cantu v. Moody et al. C. A. 5th Cir. Certio-
rari denied. Reported below: 933 F. 3d 414.
No. 19–1058. Hospira, Inc. v. Eli Lilly & Co.; and
No. 19–1061. Dr. Reddy’s Laboratories, Ltd., et al. v. Eli
Lilly & Co. C. A. Fed. Cir. Certiorari denied. Reported
below: 933 F. 3d 1320.
No. 19–1065. Johnson v. Alaska. Ct. App. Alaska. Certio-
rari denied.
ORDERS 993
590 U. S.
J
une 15, 2020
No. 19 –1080. Archer & White Sales, Inc. v. Henry
Schein
, Inc. C. A. 5th Cir. Certiorari denied. Reported
below: 935 F. 3d 274.
No. 19–1141. Atlantic Trading USA, LLC, et al. v. BP
P. L. C. et al. C. A. 2d Cir. Certiorari denied. Reported
below: 784 Fed. Appx. 4.
No. 19–1206. Boland, as Heir of the Estate of Boland,
et al. v. Boland et al. Sup. Ct. Mont. Certiorari denied.
Reported below: 397 Mont. 319, 450 P. 3d 849.
No. 19–1207. Young v. Clayton, Chief Judge, Kentucky
Court of Appeals. Sup. Ct. Ky. Certiorari denied.
No. 19–1215. Sussex et ux. v. City of Tempe, Arizona.
Ct. App. Ariz. Certiorari denied.
No. 19–1217. Bagi et al. v. City of Parma, Ohio. C. A. 6th
Cir. Certiorari denied. Reported below: 795 Fed. Appx. 338.
No. 19–1282. Terry v. United States. C. A. 4th Cir. Cer-
tiorari denied.
No. 19–1294. Young v. McGrath. Ct. App. Ky. Certiorari
denied.
No. 19–1295. Mandalapu v. Temple University Hospital
et al. C. A. 3d Cir. Certiorari denied. Reported below: 786
Fed. Appx. 348.
No. 19–1297. Collins et al. v. D. R. Horton-Texas, Ltd.
Ct. App. Tex., 14th Dist. Certiorari denied. Reported below:
574 S. W. 3d 39.
No. 19–6858. Liddell v. United States. C. A. 5th Cir.
Certiorari denied. Reported below: 776 Fed. Appx. 258.
No. 19–7018. Bishop v. United States. C. A. 10th Cir.
Certiorari denied. Reported below: 926 F. 3d 621.
No. 19–7188. Powers v. Stancil. C. A. 10th Cir. Certio-
rari denied.
No. 19 –7790. Mason, Individually and on Behalf of
Mason, et vir v. Faul. C. A. 5th Cir. Certiorari denied. Re-
ported below: 929 F. 3d 762.
994 OCTOBER
TERM, 2019
June 15, 2020 590 U. S.
No. 19–8200. Farley v. Parson. C. A. 10th Cir. Certiorari
denied.
Reported below: 800 Fed. Appx. 617.
No. 19–8216. Davis v. Hatcher, Warden. C. A. 11th Cir.
Certiorari denied. Reported below: 940 F. 3d 1175.
No. 19–8223. Connors v. Howell, Warden, et al. Sup. Ct.
Nev. Certiorari denied. Reported below: 135 Nev. 630, 451
P. 3d 548.
No. 19–8224. Neuman v. Callahan et al. Ct. App. Iowa.
Certiorari denied. Reported below: 938 N. W. 2d 730.
No. 19–8230. Kates v. New York. App. Div., Sup. Ct. N. Y.,
4th Jud. Dept. Certiorari denied. Reported below: 162 App.
Div. 3d 1627, 78 N. Y. S. 3d 600.
No. 19–8233. Alberto Cantu v. Texas. Ct. App. Tex., 13th
Dist. Certiorari denied.
No. 19–8234. Davis v. Eppinger, Warden. Sup. Ct. Ohio.
Certiorari denied. Reported below: 157 Ohio St. 3d 1560, 2020-
Ohio-313, 138 N. E. 3d 1156.
No. 19–8236. Brooks v. Foster. App. Ct. Ill., 1st Dist. Cer-
tiorari denied.
No. 19–8238. Thompson v. Cerato, as Personal Repre-
sentative of the Estate of Richards-Thompson. Sup. Ct.
Fla. Certiorari denied.
No. 19–8241. Worrell v. Emigrant Mortgage Co. et al.
C. A. 11th Cir. Certiorari denied. Reported below: 763 Fed.
Appx. 905.
No. 19–8242. Weatherspoon v. Bagahpour et al. Sup. Ct.
Tenn. Certiorari denied.
No. 19–8243. LeDeux v. Anthony, as an Individual and
in Her Ofcial Capacity as Trustee of The Emmett and
Aralee Charlton Trust, et al. C. A. 9th Cir. Certiorari
denied.
No. 19–8244. Morgan v. Illinois Department of Correc-
tions. Sup. Ct. Ill. Certiorari denied.
No. 19–8246. Thomas v. Corbett et al. Sup. Ct. Pa. Cer-
tiorari denied. Reported below: 654 Pa. 129, 212 A. 3d 519.
ORDERS 995
590 U. S.
J
une 15, 2020
No. 19–8247. Wilson v. Florida. Dist. Ct. App. Fla., 3d
D
ist. Certiorari denied. Reported below: 259 So. 3d 941.
No. 19–8251. Talkington v. Davis, Director, Texas De-
partment of Criminal Justice, Correctional Institutions
Division. C. A. 5th Cir. Certiorari denied.
No. 19–8253. Churchill v. Pennsylvania. Super. Ct. Pa.
Certiorari denied. Reported below: 183 A. 3d 1094.
No. 19–8257. Miller v. Gibbs, Warden. C. A. 8th Cir.
Certiorari denied.
No. 19–8259. Hussain v. Marietta Halal Meat et al. Ct.
App. Ga. Certiorari denied.
No. 19–8260. Fulton v. New York. App. Div., Sup. Ct.
N. Y., 4th Jud. Dept. Certiorari denied. Reported below: 173
App. Div. 3d 1861, 101 N. Y. S. 3d 691.
No. 19–8266. Heard v. Illinois. App. Ct. Ill., 1st Dist.
Certiorari denied. Reported below: 2019 IL App (1st) 162302–U.
No. 19–8271. Larson v. Alaska. Ct. App. Alaska. Certio-
rari denied.
No. 19–8290. Taylor v. Pennsylvania et al. C. A. 3d Cir.
Certiorari denied. Reported below: 802 Fed. Appx. 701.
No. 19–8318. Whiteley v. Willis et al. C. A. 11th Cir.
Certiorari denied.
No. 19–8389. Yarbrough v. Sullivan, Warden. C. A. 9th
Cir. Certiorari denied.
No. 19–8439. Cvjeticanin v. United States. C. A. 3d Cir.
Certiorari denied. Reported below: 795 Fed. Appx. 873.
No. 19–8449. Harris v. United States; and
No. 19–8456. Hopes v. United States. C. A. 3d Cir. Cer-
tiorari denied. Reported below: 788 Fed. Appx. 135.
No. 19–8466. Niehouse v. Amsberry. C. A. 9th Cir. Cer-
tiorari denied.
No. 19–8470. Walker v. United States. C. A. 8th Cir.
Certiorari denied.
996 OCTOBER
TERM, 2019
June 15, 2020 590 U. S.
No. 19–8478. King v. United States. C. A. D. C. Cir. Cer-
ti
orari denied.
No. 19–8479. Fleming v. United States. Ct. App. D. C.
Certiorari denied. Reported below: 224 A. 3d 213.
No. 19–8485. Bell v. United States. C. A. 7th Cir. Cer-
tiorari denied.
No. 19–8486. Bloodworth v. United States. C. A. 6th Cir.
Certiorari denied. Reported below: 798 Fed. Appx. 842.
No. 19–8494. Lustig v. United States. C. A. 9th Cir. Cer-
tiorari denied. Reported below: 796 Fed. Appx. 460.
No. 19–8500. Gray v. United States. C. A. 4th Cir. Cer-
tiorari denied. Reported below: 788 Fed. Appx. 236.
No. 18–663. Mance et al. v. Barr, Attorney General,
et al. C. A. 5th Cir. Motion of National Shooting Sports Foun-
dation, Inc., for leave to fle brief as amicus curiae granted. Cer-
tiorari denied. Reported below: 896 F. 3d 699.
No. 18–824. Rogers et al. v. Grewal, Attorney General
of New Jersey, et al. C. A. 3d Cir. Certiorari denied.
Justice Thomas, with whom Justice Kavanaugh joins as to
all but Part II, dissenting.
The text of the Second Amendment protects “the right of the
people to keep and bear Arms.” We have stated that this “funda-
mental righ[t]” is “necessary to our system of ordered liberty.”
McDonald v. Chicago, 561 U. S. 742, 778 (2010). Yet, in several
jurisdictions throughout the country, law-abiding citizens have
been barred from exercising the fundamental right to bear arms
because they cannot show that they have a “justifable need” or
“good reason” for doing so. One would think that such an oner-
ous burden on a fundamental right would warrant this Court's
review. This Court would almost certainly review the constitu-
tionality of a law requiring citizens to establish a justifable need
before exercising their free speech rights. And it seems highly
unlikely that the Court would allow a State to enforce a law
requiring a woman to provide a justifable need before seeking
an abortion. But today, faced with a petition challenging just
such a restriction on citizens' Second Amendment rights, the
Court simply looks the other way.
ORDERS 997
996
Thomas,
J., dissenting
Petitioner Rogers is a law-abiding citizen who runs a business
that
requires him to service automated teller machines in high-
crime areas. He applied for a permit to carry his handgun for
self-defense. But, to obtain a carry permit in New Jersey, an
applicant must, among other things, demonstrate “that he has a
justifable need to carry a handgun.” N. J. Stat. Ann. § 2C:58–
4(c) (West 2019 Cum. Supp.). For a “private citizen” to satisfy
this “justifable need” requirement, he must “specify in detail the
urgent necessity for self-protecti on, as evidenced by specific
threats or previous attacks which demonstrate a special danger
to the applicant's life that cannot be avoided by means other than
by issuance of a permit to carry a handgun.” Ibid.; see also N. J.
Admin. Code § 13:54–2.4 (2020). “Generalized fears for personal
safety are inadequate.” In re Preis, 118 N. J. 564, 571, 573 A. 2d
148, 152 (1990). Petitioner could not satisfy this standard and,
as a result, his permit application was denied. With no ability
to obtain a permit, petitioner is forced to operate his business in
high-risk neighborhoods with no frearm for self-defense.
Petitioner asks this Court to grant certiorari to determine
whether New Jersey's near-total prohibition on carrying a frearm
in public violates his Second Amendment right to bear arms,
made applicable to the States through the Fourteenth Amend-
ment. See McDonald, 561 U. S., at 750; see id., at 806 (Thomas,
J., concurring in part and concurring in judgment). This case
gives us the opportunity to provide guidance on the proper ap-
proach for evaluating Second Amendment claims; acknowledge
that the Second Amendment protects the right to carry in public;
and resolve a square Circuit split on the constitutionality of
justifable-need restrictions on that right. I would grant the peti-
tion for a writ of certiorari.
I
It has been more than a decade since this Court's decisions in
McDonald v. Chicago, supra, and District of Columbia v. Heller,
554 U. S. 570 (2008). In the years since those decisions, lower
courts have struggled to determine the proper approach for ana-
lyzing Second Amendment challenges.
Although our decision in Heller did not provide a precise stand-
ard for evaluating all Second Amendment claims, it did provide a
general framework to guide lower courts. In Heller, we recog-
nized that “the Second Amendment . . . codifed a pre-existing
right.” Id., at 592. This right was “enshrined with the scope [it
998 OCTOBER
TERM, 2019
Thomas, J., dissenting 590 U. S.
was] understood to have when the people adopted” it. Id., at
634.
To determine that scope, we analyzed the original meaning
of the Second Amendment's text as well as the historical under-
standing of the right. We noted that “limitation[s]” on the right
may be supported by “historical tradition,” but we declined to
“undertake an exhaustive historical analysis . . . of the full scope
of the Second Amendment.” Id., at 626–627. Instead, we indi-
cated that courts could conduct historical analyses for restrictions
in the future as challenges arose. Id., at 635.
Consistent with this guidance, many jurists have concluded that
text, history, and tradition are dispositive in determining whether
a challenged law violates the right to keep and bear arms. See,
e. g., Mance v. Sessions, 896 F. 3d 390, 394 (CA5 2018) (Elrod, J.,
joined by Jones, Smith, Willett, Ho, Duncan, and Engelhardt, JJ.,
dissenting from denial of reh'g en banc); Tyler v. Hillsdale Cty.
Sheriff 's Dept., 837 F. 3d 678, 702–703 (CA6 2016) (Batchelder, J.,
concurring in most of judgment); Gowder v. Chicago, 923 F.
Supp. 2d 1110, 1123 (ND Ill. 2012); Heller v. District of Columbia,
670 F. 3d 1244, 1285 (CADC 2011) (Heller II) (Kavanaugh, J.,
dissenting).
But, as I have noted before, many courts have resisted our
decisions in Heller and McDonald. See Silvester v. Becerra, 583
U. S. 1139, 1148 (2018) (opinion dissenting from denial of certio-
rari). Instead of following the guidance provided in Heller, these
courts minimized that decision's framework. See, e. g., Gould v.
Morgan, 907 F. 3d 659, 667 (CA1 2018) (concluding that our deci-
sions “did not provide much clarity as to how Second Amendment
claims should be analyzed in future cases”). They then “flled”
the self-created “analytical vacuum” with a “two-step inquiry”
that incorporates tiers of scrutiny on a sliding scale. National
Rife Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms,
and Explosives, 700 F. 3d 185, 194 (CA5 2012); Powell v. Tomp-
kins, 783 F. 3d 332, 347, n. 9 (CA1 2015) (compiling Circuit opin-
ions adopting some form of the sliding-scale framework).
Under this test, courts frst ask “whether the challenged law
burdens conduct protected by the Second Amendment.” United
States v. Chovan, 735 F. 3d 1127, 1136 (CA9 2013). If so, courts
proceed to the second step—determining the appropriate level of
scrutiny. Ibid. To do so, courts generally consider “how close
the law comes to the core of the Second Amendment right” and
ORDERS 999
996
Thomas,
J., dissenting
“the severity of the law's burden on the right.” Id., at 1138
(
internal quotation marks omitted); see also, e. g., Gould, supra,
at 670–671. Depending on their analysis of those two factors,
courts then apply what purports to be either intermediate or
strict scrutiny—at least recognizing that Heller barred the appli-
cation of rational-basis review. Chovan, supra, at 1137.
This approach raises numerous concerns. For one, the courts
of appeals' test appears to be entirely made up. The Second
Amendment provides no hierarchy of “core” and peripheral rights.
And “[t]he Constitution does not prescribe tiers of scrutiny.”
Whole Woman's Health v. Hellerstedt, 579 U. S. 582, 639 (2016)
(Thomas, J., dissenting); see also Heller II, supra, at 1283 (Kava-
naugh, J., dissenting) (listing constitutional rights that are not
subject to means-ends scrutiny). Moreover, there is nothing in
our Second Amendment precedents that supports the application
of what has been described as “a tripartite binary test with a
sliding scale and a reasonable ft.” Duncan v. Becerra, 265 F.
Supp. 3d 1106, 1117 (SD Cal. 2017), aff 'd, 742 Fed. Appx. 218
(CA9 2018).
Even accepting this test on its terms, its application has yielded
analyses that are entirely inconsistent with Heller. There, we
cautioned that “[a] constitutional guarantee subject to future
judges' assessments of its usefulness is no constitutional guaran-
tee at all,” stating that our constitutional rights must be protected
“whether or not future legislatures or (yes) even future judges
think that scope too broad.” 554 U. S., at 634–635. On that
basis, we explicitly rejected the invitation to evaluate Second
Amendment challenges under an “interest-balancing inquiry, with
the interests protected by the Second Amendment on one side
and the governmental public-safety concerns on the other.” Id.,
at 689 (Breyer, J., dissenting). But the application of the test
adopted by the courts of appeals has devolved into just that.
1
In
1
See, e. g., Kachalsky v. County of Westchester, 701 F. 3d 81, 100 (CA2
2012) (deferring to the legislature's conclusion that “public safety . . . out-
weighs the need to have a handgun for an unexpected confrontation”); New
York State Rife & Pistol Assn., Inc. v. New York, 883 F. 3d 45, 64 (CA2
2018) (stating that a “review of state and local gun control” involves a “bal-
ancing of the individual's constitutional right to keep and bear arms against
the states' obligation to `prevent armed mayhem' ” (quoting Kachalsky,
supra, at 96)), vacated and remanded, 590 U. S. 336; Gould v. Morgan, 907
1000 OCTOBER
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Thomas, J., dissenting 590 U. S.
fact, at least one scholar has contended that this interest-
ba
lancing approach has ultimately carried the day, as the lower
courts systematically ignore the Court's actual holding in Heller.
See Rostron, Justice Breyer's Triumph in the Third Battle Over
the Second Amendment, 80 Geo. Wash. L. Rev. 703 (2012). With
what other constitutional right would this Court allow such bla-
tant defance of its precedent?
Whatever one may think about the proper approach to analyz-
ing Second Amendment challenges, it is clearly time for us to
resolve the issue.
II
This case also presents the Court with an opportunity to clarify
that the Second Amendment protects a right to public carry.
While some Circuits have recognized that the Second Amendment
extends outside the home, see Wrenn v. District of Columbia,
864 F. 3d 650, 665 (CADC 2017); Moore v. Madigan, 702 F. 3d
933, 937 (CA7 2012), many have declined to defne the scope of
the right, simply assuming that the right to public carry exists
for purposes of applying a scrutiny-based analysis, see Woollard
v. Gallagher, 712 F. 3d 865, 876 (CA4 2013); Drake v. Filko, 724
F. 3d 426, 431 (CA3 2013); Kachalsky v. County of Westchester,
701 F. 3d 81, 89 (CA2 2012).
2
Other courts have specifcally indi-
cated that they would not interpret the Second Amendment to
apply outside the home without further instruction from this
Court. United States v. Masciandaro, 638 F. 3d 458, 475 (CA4
F. 3d 659, 676 (CA1 2018) (stating that “courts must defer to a legislature's
choices among reasonable alternatives” when the legislature has “take[n] ac-
count of the heightened needs of some individuals to carry frearms for self-
defense and balance[d] those needs against the demands of public safety”);
Drake v. Filko, 724 F. 3d 426, 440 (CA3 2013) (“refus[ing] . . . to intrude
upon the sound judgment and discretion of the State of New Jersey” that
only “those citizens who can demonstrate a `justifable need' to do so” may
carry handguns outside the home).
2
It is not clear how these courts can apply the made-up sliding-scale test
without determining the scope of the right. See Peruta v. County of San
Diego, 742 F. 3d 1144, 1166 (CA9 2014) (noting that courts “must fully under-
stand the historical scope of the right before [they] can determine whether
and to what extent the [challenged law] burdens the right or whether it goes
even further and amounts to a destruction of the right altogether” (internal
quotation marks omitted)), vacated and reh'g en banc granted, 781 F. 3d 1106
(CA9 2015).
ORDERS 1001
996
Thomas,
J., dissenting
2011) (“On the question of Heller's applicability outside the home
en
vironment, we think it prudent to await direction from the
Court itself ”); Williams v. State, 417 Md. 479, 496, 10 A. 3d 1167,
1177 (2011) (“If the Supreme Court . . . meant its holding [in
Heller] to extend beyond home possession, it will need to say so
more plainly”). We should provide the requested instruction.
A
The text of the Second Amendment guarantees that “the right
of the people to keep and bear Arms, shall not be infringed.” As
this Court explained in Heller, “[a]t the time of the founding, as
now, to `bear' meant to `carry.' ” 554 U. S., at 584. “When used
with `arms,' . . . the term has a meaning that refers to carrying
for a particular purpose—confrontation.” Ibid. Thus, the right
to “bear arms” refers to the right to “ `wear, bear, or carry upon
the person or in the clothing or in a pocket, for the purpose of
being armed and ready for offensive or defensive action in a case
of confict with another person.' ” Ibid. (quoting Muscarello v.
United States, 524 U. S. 125, 143 (1998) (Ginsburg, J., dissenting);
alterations and some internal quotation marks omitted).
“The most natural reading of this defnition encompasses public
carry.” Peruta v. California, 582 U. S. 943, 946 (2017) (Thomas,
J., dissenting from denia l of cer ti orar i). Confrontati ons, of
course, often occur outside the home. See, e. g., Moore, supra, at
937 (noting that “most murders occur outside the home” in Chi-
cago). Thus, the right to carry arms for self-defense inherently
includes the right to carry in public. This conclusion not only
fows from the defnition of “bear Arms” but also from the natural
use of the language in the text. As I have stated before, it is
“extremely improbable that the Framers understood the Second
Amendment to protect little more than carrying a gun from the
bedroom to the kitchen.” Peruta, supra, at 946 (opinion dissent-
ing from denial of certiorari).
The meaning of the term “bear Arms” is even more evident
when read in the context of the phrase “right . . . to keep and
bear Arms.” U. S. Const., Amdt. 2. “To speak of `bearing ' arms
solely within one's home . . . would confate `bearing ' with `keep-
ing,' in derogation of [Heller's] holding that the verbs codifed
distinct rights.” Drake, supra, at 444 (Hardiman, J., dissenting);
see also Moore, supra, at 936. In short, it would take serious
1002 OCTOBER
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Thomas, J., dissenting 590 U. S.
linguistic gymnastics—and a repudiation of this Court's decision
i
n Heller—to claim that the phrase “bear Arms” does not extend
the Second Amendment beyond the home.
B
Cases and treatises from England, the founding era, and the
antebellum period confrm that the right to bear arms includes
the right to carry in public.
1
“[T]he Second Amendment . . . codifed a pre-existing right.”
Heller, supra, at 592. So, as in Heller, my analysis of the scope
of that right begins with our country's English roots.
In 1328, during a time of political transition, the English Parlia-
ment enacted the Statute of Northampton. The statute provided
that no man was permitted to “bring . . . force in affray of the
peace, nor to go nor ride armed by night nor by day, in Fairs,
Markets, nor in the presence of the Justices or other Ministers,
nor in no part elsewhere.” Statute of Northampton 1328, 2 Edw.
3, ch. 3. On its face, the statute could be read as a sweeping
ban on the carrying of arms. However, both the history and
enforcement of the statute reveal that it created a far more lim-
ited restriction.
From the beginning, the scope of the Statute of Northampton
was unclear. Some offcers were ordered to arrest all persons
that “go armed,” regardless of whether the bearer was carrying
arms peacefully. See Letter to Mayor and Bailiffs of York (Jan.
30, 1334), in Calendar of the Close Rolls, Edward III, 1333–1337,
p. 294 (H. Maxwell Lyte ed. 1898). Other offcers, however, were
ordered to arrest only “persons riding or going armed to disturb
the peace.” Letter to Keeper and Justices of Northumberland
(Oct. 28, 1332), in Calendar of the Close Rolls, Edward III, 1330–
1333, p. 610 (H. Maxwell Lyte ed. 1898) (emphasis added).
Whatever the initial breadth of the statute, it is clear that it
was not strictly enforced in the ensuing centuries. To the con-
trary, “[d]uring most of England's history, maintenance of an
armed citizenry was neither merely permissive nor cosmetic but
essential” because “[u]ntil late in the seventeenth century England
had no standing army, and until the nineteenth century no regular
police force.” Malcolm, The Right of the People To Keep and
Bear Arms: The Common Law Tradition, 10 Hastings Const. L. Q.
285, 290 (1983). Citizens were not only expected to possess arms,
ORDERS 1003
996
Thomas,
J., dissenting
they were encouraged to maintain skills in the use of those arms,
wh
ich, of course, required carrying arms in public. See, e. g., id.,
at 292 (describing King Henry VIII's order requiring villages to
maintain targets at which local men were to practice shooting).
The religious and political turmoil in England during the 17th
century thrust the scope of the Statute of Northampton to the
forefront. See J. Malcolm, To Keep and Bear Arms 104–105 (1994)
( hereinaf ter Ma lcolm). King James II, a Catholic monarch,
sought to revive the Statute of Northampton as a weapon to
disarm his Protestant opponents. Id., at 104. To this point,
“[a]lthough men were occasionally indicted for carrying arms to
terrorize their neighbours, the strict prohibition [of the Statute
of Northampton] had never been enforced.” Ibid. But, in No-
vember 1686, the Attorney General brought Sir John Knight—an
opponent of James II—to trial before the King 's Bench. The
information alleged that Knight violated the Statute of Northamp-
ton by “walk[ing] about the streets armed with guns, and [enter-
ing] into the church of St. Michael, in Bristol, in the time of divine
service, with a gun, to terrify the King 's subjects.” Sir John
Knight's Case, 3 Mod. 117, 87 Eng. Rep. 75, 76. At trial, the
Chief Justice of the King 's Bench stated that the Statute of
Northampton only “punish[ed] people who go armed to terrify the
King's subjects.” Id., at 118, 87 Eng. Rep., at 76 (emphasis
added). He explained that the Statute of Northampton was “al-
most gone in desuetudinem” for “now there be a general conniv-
ance to gentlemen to ride armed for their security.” Rex v. Sir
John Knight, 1 Comb. 38–39, 90 Eng. Rep. 330 (1686). The Chief
Justice also noted that only “where the crime shall appear to be malo
animo [i. e., with a wrongful intent,] it will come within the Act.”
Id., at 39, 90 Eng. Rep., at 330. In other words, the Statute of
Northampton was almost obsolete from disuse and prohibited only
the carrying arms to terrify. Knight was ultimately acquitted.
3
3
At least one scholar has asserted that Sir John Knight was acquitted
because he fell with in the Statute of Northampton's excepti on for the
“King 's Offcers and Ministers.” Charles, The Faces of the Second Amend-
ment Outside the Home: History Versus Ahistorical Standards of Review, 60
Clev. St. L. Rev. 1, 28, 30 (2012) (internal quotation marks omitted). This
assertion has been repudiated by subsequent scholarship. See Kopel, The
First Century of Right to Arms Litigation, 14 Geo. J. L. & Pub. Pol'y 127,
135, n. 46 (2016); see also Young v. Hawaii, 896 F. 3d 1044, 1064, n. 17 (CA9
2018), reh'g en banc granted, 915 F. 3d 681 (CA9 2019). Moreover, regard-
1004 OCTOBER
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Thomas, J., dissenting 590 U. S.
James II's attempts to disarm his opponents continued. Only
two
weeks after Knight's acquittal, James II ordered general dis-
armaments of regions inhabited by his Protestant enemies under
the auspices of the Game Act of 1671. See Malcolm 105–106. As
we explained in Heller, “[t]hese experiences caused Englishmen
to be extremely wary of concentrated military forces run by the
state and to be jealous of their arms.” 554 U. S., at 593.
In 1688, James II was deposed in an uprising which came to be
known as The Glorious Revolution. Soon thereafter, the English
compiled the Declaration of Rights, which contained a list of
grievances against James II and sought assurances from William
and Mary that Protestants would not be disarmed. See Malcom
115. William and Mary accepted the Declaration of Rights, which
was later codifed as the English Bill of Rights, agreeing that
“the Subjects which are Protestants may have Arms for their
Defence suitable to their Conditions, and as allowed by Law.” 1
Wm. & Mary, ch. 2, § 7, in 3 Eng. Stat. at Large 441 (1689).
The Statute of Northampton remained in force following the
codifcation of the English Bill of Rights, but the narrow interpre-
tation of the statute adopted in Sir John Knight's Case became
blackletter law in England. Writing in 1716, Serjeant William
Hawkins, author of an infuential English treatise, explained that
“no wearing of Arms is within the meaning of [the Statute of
Northampton], unless it be accompanied with such Circumstances
as are apt to terrify the People; from whence it seems clearly to
follow, That Persons of Quality are in no Danger of Offending
against this Statute by wearing common Weapons.” 1 Pleas of
the Crown 136 (1716). Theodore Barlow, another legal commen-
tator, also explained that “Wearing Arms, if not accompanied with
Circumstances of Terror, is not within this Statute; therefore Peo-
ple of Rank and Distinction do not offend by wearing common
Weapons.” The Justice of Peace: A Treatise Containing the
Power and Duty of That Magistrate 12 (1745). Sir William Black-
stone concluded the Statute of Northampton banned only the car-
rying of “dangerous and unusual weapons.” Heller, supra, at 627
(internal quotation marks omitted). He explained that the right
to arms protected by the 1689 English Bill of Rights preserved
“the natural right of resistance and self-preservation” and “the
less of the ground for acquittal, the Chief Justice's pronouncement of law
remains.
ORDERS 1005
996
Thomas,
J., dissenting
right of having and using arms for self-preservation and defence.”
1
Commentaries on the Laws of England 139–140 (1765); see also
2 id., at 412, n. 2 (E. Christian ed. 1794) (“[E]very one is at liberty
to keep or carry a gun, if he does not use it for the [illegal]
destruction of game” (editor's note)).
In short, although England may have limited the right to carry
in the 14th century, by the time of the founding, the English right
was “an individual right protecting against both public and pri-
vate violence.” Heller, supra, at 594 (emphasis added). And for
purposes of discerning the original meaning of the Second Amend-
ment, it is this founding era understanding that is most pertinent.
2
Founding era legal commentators in America also understood
the Second Amendment right to “bear Arms” to encompass the
right to carry in public.
St. George Tucker, in his 1803 American edition of Blackstone's
Commentaries, explained that the right to armed self-defense is
the “frst law of nature.” 1 Blackstone's Commentaries, App. 300.
He described “the right of the people to keep and bear arms” as
“the true palladium of liberty.” Ibid. Tucker makes clear that
bearing arms in public was common practice at the founding: “In
many parts of the United States, a man no more thinks, of going
out of his house on any occasion, without his rife or musket in
his hand, than a European fne gentleman without his sword by
his side.” 5 id., at 19.
Similarly, William Rawle, a member of the Pennsylvania Assem-
bly that ratifed the Bill of Rights, acknowledged the right to
carry arms in public. A View of the Constitution of the United
States of America 125–126 (2d ed. 1825). Rawle noted that the right
should not “be abused to the disturbance of the public peace” and
explained that if a man carried arms “attended with circum-
stances giving just reason to fear that he purposes to make an
unlawful use of them,” he may be required “to give surety of the
peace.” Id., at 126.
4
But his general understanding appeared to
4
Lower courts looking to historical practice have concluded that, even in
these circumstances, if a surety was provided or the accused was exempt
from providing a surety, he could continue to bear arms in public. Wrenn
v. District of Columbia, 864 F. 3d 650, 661 (CADC 2017) (explaining the
application of surety laws); Young, 896 F. 3d, at 1061–1062.
1006 OCTOBER
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Thomas, J., dissenting 590 U. S.
mirror Hawkins' articulation of the English right—public carry
was
permitted so long as it was not done to terrify.
Other commentators took a similar view. James Wilson, a
prominent Framer and one of the six original Justices of the
Supreme Court, understood founding era law to prohibit only the
carrying of “dangerous and unusual weapons, in such a manner,
as will naturally diffuse a terrour among the people.” 2 Lectures
on Law, in Collected Works of James Wilson 1138 (K. Hall & M.
Hall eds. 2007). Charles Humphreys, a law professor, reiterated
“that in this country the constitution guarranties to all persons
the right to bear arms” and that “it can only be a crime to
exercise this right in such a manner, as to terrify the people
unnecessarily.” A Compendium of the Common Law in Force in
Kentucky 482 (1822).
3
This view persisted in the early years of the Republic. The
majority of the relevant cases during the antebellum period—
many of which Heller relied on—support the understanding that
the phrase “bear Arms” includes the right to carry in public.
In Bliss v. Commonwealth, 12 Ky. 90 (1822), the Kentucky
Court of Appeals held that its state constitutional right to “bear
arms” invalidated a concealed carry restriction. Id., at 91–92.
The court stated that “whatever restrains the full and complete
exercise of [the right to bear arms], though not an entire destruc-
tion of it, is forbidden by the explicit language of the constitu-
tion.” Ibid.
Eleven years after Bliss, Tennessee's highest court interpreted
its State Second Amendment analog in a similar manner in Simp-
son v. State, 13 Tenn. 356 (1833). In that case, a jury convicted
Simpson of carrying arms “in a warlike manner . . . and to the
great terror and disturbance of . . . good citizens.” Id., at 357.
Simpson challenged the conviction, arguing that the State merely
proved that he carried arms, not that he did so in a manner to
provoke violence. Id., at 358. The State asserted that violence
was not “essential” to support the conviction, pointing to a state-
ment of Serjeant Hawkins regarding the English Statute of
Northampton. Ibid. The court rejected the State's argument.
First, it noted that the State had selectively quoted Hawkins'
statement about “ `dangerous and unusual weapons,' ” and that
Hawkins actually explained that “persons of quality are in no
danger of offending [the Statute of Northampton] by wearing their
common weapons . . . in such places, and upon occasions in which
ORDERS 1007
996
Thomas,
J., dissenting
it is the common fashion to make use of them, without causing
the
least suspicion of an intention to commit any act of violence
or disturbance of the peace.” Id., at 358–359. Second, the court
held that even assuming “that our ancestors adopted and brought
over with them [the Statute of Northampton], or [a] portion of
the common law,” the state-law “right to keep and to bear arms”
“completely abrogated it.” Id., at 359–360 (internal quotation
marks omitted).
In 1840, the Supreme Court of Alabama concluded that, while
the legislature could impose limitations on “the manner in which
arms shall be borne,” it could not bar the right to bear arms in
public for self-defense. State v. Reid, 1 Ala. 612, 616–619. The
court upheld a prohibition on the “practice of carrying weapons
secretly.” Id., at 616 (internal quotation marks omitted). In
doing so, however, the court recognized that there were limits to
the State's ability to restrict the right to carry in public: “A
statute which, under the pretence of regulating, amounts to a
destruction of the right [to bear arms], or which requires arms to
be so borne as to render them wholly useless for the purpose of
defence, would be clearly unconstitutional.” Id., at 616–617. In
the court's view, “it is only when carried openly, that [arms] can
be effciently used for defence.” Id., at 619. Thus, the court
allowed some regulation of the form of carrying arms in public,
but it frmly concluded that the right to carry in public for self-
defense could not be eliminated altogether.
Other st ate cour ts adopted a si mi lar v iew. In Nunn v.
State, 1 Ga. 243 (1846), the Supreme Court of Georgia held that
“seek[ing] to suppress the practice of carrying certain weapons
secretly . . . is valid” but that “a prohibition against bearing arms
openly . . . is in confict with the Constitution, and void.” Id., at
251. And, in State v. Chandler, 5 La. 489 (1850), the Supreme
Court of Louisiana held that the State could ban concealed carry
but that the “right to carry arms . . . in full open view” was
“guaranteed by the Constitution of the United States.” Id., at
489–490 (internal quotation marks omitted).
These cases show that, with few exceptions,
5
courts in the ante-
bellum period understood the right to bear arms as including the
right to carry in public for self-defense.
5
In State v. Buzzard, 4 Ark. 18 (1842), the Supreme Court of Arkansas
upheld a law that prohibited concealed carry. Id., at 27 (opinion of Ringo,
C. J.); id., at 32 (opinion of Dickinson, J.); but see id., at 34–35 (Lacy, J.,
dissenting).
1008 OCTOBER
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Thomas, J., dissenting 590 U. S.
C
Fi
nally, in the wake of the Civil War, “there was an outpouring
of discussion of the Second Amendment in Congress and in public
discourse, as people debated whether and how to secure constitu-
tional rights for newly free slaves.” Heller, 554 U. S., at 614.
These discussions confrm that the Second Amendment right to
bear arms was understood to protect public carry at the time the
Fourteenth Amendment was ratifed.
6
As I have previously explained, “Southern anxiety about an
uprising among the newly freed slaves peaked” after the Civil
War. McDonald, 561 U. S., at 846 (opinion concurring in part
and concurring in judgment). Acting on this fear, States of the
“old Confederacy” engaged in “systematic efforts” to disarm re-
cently freed slaves and many of the 180,000 blacks who served in
the Union Army. Id., at 847 (internal quotation marks omitted).
“Throughout the South, armed parties, often consisting of ex-
Confederate soldiers serving in the state militias, forcibly took
frearms from newly freed slaves.” Id., at 772 (majority opinion).
In addition, some States passed laws that explicitly prohibited
blacks from carrying arms without a license (a requirement not
imposed on white citizens) or barred blacks from possessing arms
altogether. See Cottrol & Diamond, The Second Amendment:
Toward an Afro-Americanist Reconsideration, 80 Geo. L. J. 309,
344–345 (1991) (compiling laws from Alabama, Louisiana, and
Mississippi).
The Federal Government acknowledged that these abuses vio-
lated blacks' fundamental right to carry arms in public. In 1866,
a report of the Commissioner of the Freedmen's Bureau recog-
nized that “[t]he civil law [of Kentucky] prohibits the colored man
from bearing arms” and concluded that such a restriction in-
fringed “the right of the people to keep and bear arms as pro-
vided in the Constitution.” H. R. Exec. Doc. No. 70, 39th Cong.,
1st Sess., 233, 236. Similarly, a circular in a congressional Report
acknowledged that “in some parts of [South Carolina,] armed par-
6
Although these discussions occurred well after the ratifcation of the Bill
of Rights, Heller treated them as “instructive” in determining the meaning
of the Second Amendment. 554 U. S., at 614. The discussions also inform
our understanding of the right to keep and bear arms guaranteed by the
Fourteenth Amendment as a privilege of American citizenship. See McDon-
ald v. Chicago, 561 U. S. 742, 837 (2010) (Thomas, J., concurring in part and
concurring in judgment).
ORDERS 1009
996
Thomas,
J., dissenting
ties are, without proper authority, engaged in seizing all fre-arms
found
in the hands of the freedmen . . . in plain and direct viola-
tion of their personal rights [to keep and bear arms] as guaranteed
by the Constitution of the United States.” Joint Comm. on Re-
construction, H. R. Rep. No. 30, 39th Cong., 1st Sess., 229 (1866)
(Proposed Circular of Brigadier Gen. R. Saxton). The circular
noted the “peaceful and orderly conduct” of freed slaves when
carrying arms, as well as their need “to kill game for subsistence,
and to protect their crops from destruction by birds and animals,”
clearly indicating that the bearing of arms occurs in public. Ibid.
Finally, numerous Congressmen expressed dismay at the denial
of blacks' rights to bear arms when discussing the Civil Rights
Act of 1866, the Freedmen's Bureau Act of 1866, and the Four-
teenth Amendment. See Halbrook, The Jurisprudence of the
Second and Fourteenth Amendments, 4 Geo. Mason L. Rev. 1, 21–
25 (1981).
The importance of the right to carry arms in public during
Reconstruction and thereafter cannot be overstated. “The use
of frearms for self-defense was often the only way black citizens
could protect themselves from mob violence.” McDonald, 561
U. S., at 857 (opinion of Thomas, J.). And, unfortunately, “[w]ith-
out federal enforcement of the inalienable right to keep and bear
arms, . . . militias and mobs were tragically successful in waging
a campaign of terror” against Southern blacks. Id., at 856. On
this record, it is clear that “the Framers of the Privileges or
Immunities Clause and the ratifying-era public understood—just
as the Framers of the Second Amendment did—that the right to
keep and bear arms” encompassed the right to carry arms in
public for self-defense. Id., at 858.
In short, the text of the Second Amendment and the history
from England, the founding era, the antebellum period, and Re-
construction leave no doubt that the right to “bear Arms” in-
cludes the individual right to carry in public in some manner.
III
Recognizing that the Constitution protects the right to carry
arms in public does not mean that there is a “right to . . . carry
any weapon whatsoever in any manner whatsoever and for what-
ever purpose.” Heller, 554 U. S., at 626. “The protections enu-
merated in the Second Amendment . . . are not absolute prohibi-
tions against government regulation.” Voisine v. United States,
1010 OCTOBER
TERM, 2019
Thomas, J., dissenting 590 U. S.
579 U. S. 686, 714 (2016) (Thomas, J., dissenting). States can
i
mpose restrictions on an individual's right to bear arms that
are consistent with historical limitations. “Some laws, however,
broadly divest an individual of his Second Amendment rights”
altogether. Ibid. This case gives us the ideal opportunity to at
least begin analyzing which restrictions are consistent with the
historical scope of the right to bear arms.
It appears that a handful of States throughout the country
prohibit citizens from carrying arms in public unless they can
establish “good cause” or a “justifable need” for doing so. The
majority of States, while regulating the carrying of arms to vary-
ing degrees, have not imposed such a restriction, which amounts
to a “[b]a[n] on the ability of most citizens to exercise an enumer-
ated right.” Wrenn, 864 F. 3d, at 666. The Courts of Appeals
are squarely divided on the constitutionality of these onerous “jus-
tifable need” or “good cause” restrictions. The D. C. Circuit has
held that a law limiting public carry to those with a “good reason
to fear injury to [their] person or property” violates the Second
Amendment. Id., at 655 (internal quotation marks omitted).
7
By contrast, the First, Second, Third, and Fourth Circuits have
upheld the constitutionality of licensing schemes with “justifable
need” or “good reason” requirements, applying what purported to
be an intermediate scrutiny standard. See Gould, 907 F. 3d, at
677; Kachalsky, 701 F. 3d, at 101; Drake, 724 F. 3d, at 440; Masci-
andaro, 638 F. 3d, at 460.
“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)). The question whether a State can effectively
ban most citizens from exercising their fundamental right to bear
arms surely qualifes as such a matter. We should settle the
confict among the lower courts so that the fundamental protec-
tions set forth in our Constitution are applied equally to all
citizens.
7
A panel of the Ninth Circuit, in an exhaustive and scholarly opinion, also
held that a law violated the Second Amendment by limiting public carry to
those with “ `urgency,' ” “ `need,' ” or a “ `reason to fear injury.' ” Young, 896
F. 3d, at 1048. That decision, however, was vacated when a majority of the
active judges on the Ninth Circuit voted to grant en banc review. See 915
F. 3d 681.
ORDERS 1011
590 U. S.
J
une 15, 2020
***
Th
is case gives us an opportunity to provide lower courts with
much-needed guidance, ensure adherence to our precedents, and
resolve a Circuit split. Each of these reasons is independently
suffcient to grant certiorari. In combination, they unequivocally
demonstrate that this case warrants our review. Rather than
prolonging our decade-long failure to protect the Second Amend-
ment, I would grant this petition.
No. 18–1287. Baxter v. Bracey et al. C. A. 6th Cir. Cer-
tiorari denied. Reported below: 751 Fed. Appx. 869.
Justice Thomas, dissenting.
Petitioner Alexander Baxter was caught in the act of burgling
a house. It is undisputed that police offcers released a dog to
apprehend him and that the dog bit him. Petitioner alleged that
he had already surrendered when the dog was released. He
sought damages from two offcers under Rev. Stat. § 1979, 42
U. S. C. § 1983, alleging excessive force and failure to intervene,
in violation of the Fourth Amendment. Applying our qualifed
immunity precedents, the Sixth Circuit held that even if the off-
cers' conduct violated the Constitution, they were not liable be-
cause their conduct did not violate a clearly established right.
Petitioner asked this Court to reconsider the precedents that the
Sixth Circuit applied.
I have previously expressed my doubts about our qualifed im-
munity jurisprudence. See Ziglar v. Abbasi, 582 U. S. 120, 157–
160 (2017) (Thomas, J., concurring in part and concurring in judg-
ment). Because our § 1983 qualifed immunity doctrine appears
to stray from the statutory text, I would grant this petition.
I
A
In the wake of the Civil War, Republicans set out to secure
certain individual rights against abuse by the States. Between
1865 and 1870, Congress proposed, and the States ratifed, the
Thirteenth, Fourteenth, and Fif teenth Amendments. These
Amendments protect certain rights and gave Congress the power
to enforce those rights against the States.
Armed with its new enforcement powers, Congress sought to
respond to “the reign of terror imposed by the Klan upon black
1012 OCTOBER
TERM, 2019
Thomas, J., dissenting 590 U. S.
citizens and their white sympathizers in the Southern States.”
Br
iscoe v. LaHue, 460 U. S. 325, 337 (1983). Congress passed a
statute variously known as the Ku Klux Act of 1871, the Civil
Rights Act of 1871, and the Enforcement Act of 1871. Section 1,
now codifed, as amended, at 42 U. S. C. § 1983, provided that
“any person who, under color of any law, statute, ordinance,
regulation, custom, or usage of any State, shall subject, or
cause to be subjected, any person within the jurisdiction of
the United States to the deprivation of any rights, privileges,
or immunities secured by the Constitution of the United
States, shall . . . be liable to the party injured in any action
at law, suit in equity, or other proper proceeding for re-
dress . . . .” Act of Apr. 20, 1871, § 1, 17 Stat. 13.
Put in simpler terms, § 1 gave individuals a right to sue state
offcers for damages to remedy certain violations of their constitu-
tional rights.
B
The text of § 1983 “ma[kes] no mention of defenses or immuni-
ties.” Ziglar, supra, at 157 (opinion of Thomas, J.). Instead, it
applies categorically to the deprivation of constitutional rights
under color of state law.
For the frst century of the law's existence, the Court did not
recognize an immunity under § 1983 for good-faith offcial conduct.
Although the Court did not squarely deny the availability of a
good-faith defense, it did reject an argument that plaintiffs must
prove malice to recover. Myers v. Anderson, 238 U. S. 368, 378–
379 (1915) (imposing liability); id., at 371 (argument by counsel
that malice was an essential element). No other case appears to
have established a good-faith immunity.
In the 1950s, this Court began to “as[k] whether the common
law in 1871 would have accorded immunity to an offcer for a tort
analogous to the plaintiff 's claim under § 1983.” Ziglar, supra, at
159 (opinion of Thomas, J.). The Court, for example, recognized
absolute immunity for legislators because it concluded Congress
had not “impinge[d] on a tradition [of legislative immunity] so
well grounded in history and reason by covert inclusion in the
general language” of § 1983. Tenney v. Brandhove, 341 U. S. 367,
376 (1951). The Court also extended a qualifed defense of good
faith and probable cause to police offcers sued for unconstitutional
arrest and detention. Pierson v. Ray, 386 U. S. 547, 557 (1967).
The Court derived this defense from “the background of tort
ORDERS 1013
1011
Thomas,
J., dissenting
liability . . . in the case of police offcers making an arrest.” Id.,
at
556–557. These decisions were confned to certain circum-
stances based on specifc analogies to the common law.
Almost immediately, the Court abandoned this approach. In
Scheuer v. Rhodes, 416 U. S. 232 (1974), without considering the
common law, the Court remanded for the application of qualifed
immunity doctrine to state executive offcials, National Guard
members, and a university president, id., at 234–235. It based
the availability of immunity on practical considerations about “the
scope of discretion and responsibilities of the offce and all the
circumstances as they reasonably appeared at the time of the
action on which liability is sought to be based,” id., at 247, rather
than the liability of offcers for analogous common-law torts in
1871. The Court soon dispensed entirely with context-specifc
analysis, extending qualifed immunity to a hospital superintend-
ent sued for deprivation of the right to liberty. O'Connor v.
Donaldson, 422 U. S. 563, 577 (1975); see also Procunier v. Navar-
ette, 434 U. S. 555, 561 (1978) (prison offcials and offcers).
Then, in Harlow v. Fitzgerald, 457 U. S. 800 (1982), the Court
eliminated from the qualifed immunity inquiry any subjective
analysis of good faith to facilitate summary judgment and avoid
the “substantial costs [that] attend the litigation of ” subjective
intent, id., at 816. Although Harlow involved an implied consti-
tutional cause of action against federal offcials, not a § 1983 ac-
tion, the Court extended its holding to § 1983 without pausing to
consider the statute's text because “it would be `untenable to
draw a distinction for purposes of immunity law.' ” Id., at 818,
n. 30 (quoting Butz v. Economou, 438 U. S. 478, 504 (1978)). The
Court has subsequently applied this objective test in § 1983 cases.
See, e. g., Ziglar, 582 U. S., at 151 (majority opinion).
1
II
In several different respects, it appears that “our analysis
is no longer grounded in the common-law backdrop against
which Congress enacted the 1871 Act.” Id., at 159 (opinion of
Thomas, J.).
There likely is no basis for the objective inquiry into clearly
established law that our modern cases prescribe. Leading trea-
1
I express no opinion on qualifed immunity in the context of implied
constitutional causes of action against federal offcials. See, e. g., Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).
1014 OCTOBER
TERM, 2019
Thomas, J., dissenting 590 U. S.
tises from the second half of the 19th century and case law until
the
1980s contain no support for this “clearly established law”
test. Indeed, the Court adopted the test not because of “ `general
principles of tort immunities and defenses,' ” Malley v. Briggs,
475 U. S. 335, 339 (1986), but because of a “balancing of competing
values” about litigation costs and effciency, Harlow, supra, at 816.
There also may be no justifcation for a one-size-fts-all, subjec-
tive immunity based on good faith. Nineteenth-century offcials
sometimes avoided liability because they exercised their discre-
tion in good faith. See, e. g., Wilkes v. Dinsman, 7 How. 89, 130–
131 (1849); see also Nielson & Walker, A Qualifed Defense of
Qualifed Immunity, 93 Notre Dame L. Rev. 1853, 1864–1868
(2018); Baude, Is Qualifed Immunity Unlawful? 106 Cal. L. Rev.
45, 57 (2018); Engdahl, Immunity and Accountability for Positive
Governmental Wrongs, 44 U. Colo. L. Rev. 1, 48–55 (1972). But
offcials were not always immune from liability for their good-
faith conduct. See, e. g., Little v. Barreme, 2 Cranch 170, 179
(1804) (Marshall, C. J.); Miller v. Horton, 152 Mass. 540, 548, 26
N. E. 100, 103 (1891) (Holmes, J.); see also Baude, supra, at 55–58;
Woolhandler, Patterns of Offcial Immunity and Accountability, 37
Case W. Res. L. Rev. 396, 414–422 (1986); Engdahl, supra, at 14–21.
Although I express no defnitive view on this question, the
defense for good-faith offcial conduct appears to have been lim-
ited to authorized actions within the offcer's jurisdiction. See,
e. g., Wilkes, supra, at 130; T. Cooley, Law of Torts 688–689 (1880);
J. Bishop, Commentaries on Non-Contract Law § 773, p. 360 (1889).
An offcer who acts unconstitutionally might therefore fall within
the exception to a common-law good-faith defense.
Regardless of what the outcome would be, we at least ought to
return to the approach of asking whether immunity “was `histori-
cally accorded the relevant offcial' in an analogous situation `at
common law.' ” Ziglar, supra, at 157 (opinion of Thomas, J.)
(quoting Imbler v. Pachtman, 424 U. S. 409, 421 (1976)). The
Court has continued to conduct this inquiry in absolute immunity
cases, even after the sea change in qualifed immunity doctrine.
See Burns v. Reed, 500 U. S. 478, 489–492 (1991). We should do
so in qualifed immunity cases as well.
2
2
Qualifed immunity is not the only doctrine that affects the scope of relief
under § 1983. In Monroe v. Pape, 365 U. S. 167 (1961), the Court held that
an offcer acts “ `under color of any statute, ordinance, regulation, custom, or
usage of any State' ” even when state law did not authorize his action, id.,
ORDERS 1015
590 U. S.
J
une 15, 2020
***
I
continue to have strong doubts about our § 1983 qualifed
immunity doctrine. Given the importance of this question, I
would grant the petition for certiorari.
No. 19–27. Cheeseman v. Polillo, Chief of Police, City
of Glassboro, New Jersey, et al. Super. Ct. N. J., App. Div.
Motion of Firearms Policy Coalition et al. for leave to fle brief
as amici curiae granted. Certiorari denied.
No. 19–532. United States v. California et al. C. A. 9th
Cir. Certiorari denied. Justice Thomas and Justice Alito
would grant the petition for writ of certiorari. Reported below:
921 F. 3d 865.
No. 19–1010. Actavis Holdco U. S., Inc., et al. v. Connecti-
cut et al. C. A. 3d Cir. Motion of Twelve Companies et al.
and Chamber of Commerce of the United States of America et al.
for leave to fle briefs as amici curiae granted. Certiorari
denied.
No. 19–1105. Sharp, Interim Warden v. Harris. C. A. 10th
Cir. Motion of respondent for leave to proceed in forma pau-
peris granted. Certiorari denied. Reported below: 941 F. 3d
962.
No. 19 –1191. Ohio v. Ford. Sup. Ct. Oh i o. Moti on of
respondent for leave to proceed in forma pauperis granted.
Certiorari denied. Reported below: 158 Ohio St. 3d 139, 2019-
Ohio-4539, 140 N. E. 3d 616.
No. 19–6593. Ford v. White et al. C. A. 9th Cir. Motion
of petitioner for reconsideration of order denying leave to proceed
at 168, 183. Scholars have debated whether this holding is correct. Com-
pare Zagrans, “Under Color of ” What Law: A Reconstructed Model of Sec-
tion 1983 Liability, 71 Va. L. Rev. 499, 559 (1985), with Winter, The Meaning
of “Under Color of ” Law, 91 Mich. L. Rev. 323, 341–361 (1992), and Achtenb-
erg, A “Milder Measure of Villainy”: The Unknown History of 42 U. S. C.
§ 1983 and the Meaning of “Under Color of ” Law, 1999 Utah L. Rev. 1, 56–
60. Although concern about revisiting one doctrine but not the other is
understandable, see Crawford-El v. Britton, 523 U. S. 574, 611 (1998) (Scalia,
J., joined by Thomas, J., dissenting), respondents—like many defendants in
§ 1983 actions—have not challenged Monroe.
1016 OCTOBER
TERM, 2019
June 15, 16, 2020 590 U. S.
in forma pauperis granted. The order entered January 13, 2020,
[589
U. S. 1131] vacated. Certiorari denied.
No. 19–7670. Panah v. Broomeld, Warden. Sup. Ct. Cal.
Motion of Embassy of Pakistan, Iranian Interests Section for
leave to fle brief as amicus curiae out of time denied. Certio-
rari denied.
No. 19–8489. Abbo v. United States. C. A. 10th Cir. Cer-
tiorari denied. Justice Gorsuch took no part in the consider-
ation or decision of this petition. Reported below: 798 Fed.
Appx. 239.
Rehearing Denied
No. 19–1127. Neff v. United States, 590 U. S. 906;
No. 19–6444. Harris v. Moyer, Secretary, Maryland De-
partment of Public Safety and Correctional Services,
et al., 589 U. S. 1112;
No. 19–7300. Booker v. Davis, Director, Texas Depart-
ment of Criminal Justice, Correctional Institutions Divi-
sion, 589 U. S. 1280;
No. 19–7538. Carlson et vir v. Harpstead, Commissioner,
Minnesota Department of Human Services, et al., 589
U. S. 1298;
No. 19–7642. Karnofel v. Superior Waterproong, Inc.,
590 U. S. 908;
No. 19–7669. Mattison v. Willis et al., 590 U. S. 908;
No. 19–7732. Hanks v. United States, 589 U. S. 1299;
No. 19–8010. Chhim v. City of Houston, Texas, et al., 590
U. S. 912; and
No. 19–8036. Jackson v. United States, 590 U. S. 913. Peti-
tions for rehearing denied.
June 16, 2020
Miscellaneous Order
No. 19A1052 (19–8695). Gutierrez v. Saenz et al. Applica-
tion for stay of execution of sentence of death, presented to Jus-
tice Alito, and by him referred to the Court, granted pending
disposition of the petition for writ of certiorari. Should the peti-
tion for writ of certiorari be denied, this stay shall terminate
automatically. In the event the petition for writ of certiorari is
ORDERS 1017
590 U. S.
J
une 16, 2020
granted, the stay shall terminate upon the sending down of the
judg
ment of this Court. The District Court should promptly de-
termine, based on whatever evidence the parties provide, whether
serious security problems would result if a prisoner facing execu-
tion is permitted to choose the spiritual adviser the prisoner
wishes to have in his immediate presence during the execution.
AMENDMENTS TO
FEDERAL RULES OF APPELLATE PROCEDURE
The following amendments to the Federal Rules of Appellate Procedure
were prescribed by the Supreme Court of the United States on April 27,
2020, pursuant to 28 U. S. C. § 2072, and were reported to Congress by
The Chief Justice on the same date. For the letter of transmittal, see
post, p. 1020. The Judicial Conference report referred to in that letter is
not reproduced herein.
Note that under 28 U. S. C. § 2074, such amendments shall take effect
no earlier than December 1 of the year in which they are transmitted to
Congress unless otherwise provided by law.
For earlier publication of the Federal Rules of Appellate Procedure and
amendments thereto, see 389 U. S. 1063, 398 U. S. 971, 401 U. S. 1029,
406 U. S. 1005, 441 U. S. 973, 475 U. S. 1153, 490 U. S. 1125, 500 U. S. 1007,
507 U. S. 1059, 511 U. S. 1155, 514 U. S. 1137, 517 U. S. 1255, 523 U. S. 1147,
535 U. S. 1123, 538 U. S. 1071, 544 U. S. 1151, 547 U. S. 1221, 550 U. S. 983,
556 U. S. 1291, 559 U. S. 1119, 563 U. S. 1045, 569 U. S. 1125, 572 U. S. 1161,
578 U. S. 1031, 581 U. S. 1029, 584 U. S. 1043, and 587 U. S. 1077.
1019
LETTER OF TRANSMITTAL
Supreme Court of the United States
washington, d. c.
April 27, 2020
To the Senate and House of Representatives of the United
States of America in Congress Assembled:
I have the honor to submit to the Congress the amend-
ments to the Federal Rules of Appellate Procedure that have
been adopted by the Supreme Court of the United States
pursuant to Section 2072 of Title 28, United States Code.
Accompanying the amended rules are the following mate-
rials that were submitted to the Court for its consideration
pursuant to Section 331 of Title 28, United States Code:
a transmittal letter to the Court dated October 23, 2019; a
redline version of the rules with committee notes; an excerpt
from the September 2019 report of the Committee on Rules
of Practice and Procedure to the Judicial Conference of the
United States; and an excerpt from the May 2019 report of
the Advisory Committee on Appellate Rules.
Sincerely,
(Signed) John G. Roberts, Jr.
Chief Justice of the United States
1020
SUPREME COURT OF THE UNITED STATES
April 27, 2020
Ordered:
1. The Federal Rules of Appellate Procedure are amended
to include amendments to Rules 35 and 40.
[See infra, p. 1023.]
2. The foregoing amendments to the Federal Rules of Ap-
pellate Procedure shall take effect on December 1, 2020, and
shall govern in all proceedings in appellate cases thereafter
commenced and, insofar as just and practicable, all proceed-
ings then pending.
3. The Chief Justice is authorized to transmit to the
Congress the foregoing amendments to the Federal Rules
of Appellate Procedure in accordance with the provisions of
Section 2074 of Title 28, United States Code.
1021
AMENDMENTS TO THE FEDERAL RULES
OF APPELLATE PROCEDURE
Rule 35. En banc determination.
.....
(e) Response.—No response may be fled to a petition for
an en banc consideration unless the court orders a response.
The length limits in Rule 35(b)(2) apply to a response.
.....
Rule 40. Petition for panel rehearing.
(a) Time to fle; contents; response; action by the court
if granted.
.....
(3) Response.—Unless the court requests, no response
to a petition for panel rehearing is permitted. Ordinarily,
rehearing will not be granted in the absence of such a re-
quest. If a response is requested, the requirements of
Rule 40(b) apply to the response.
.....
1023
AMENDMENTS TO
FEDERAL RULES OF BANKRUPTCY PROCEDURE
The following amendments to the Federal Rules of Bankruptcy Proce-
dure were prescribed by the Supreme Court of the United States on April
27, 2020, pursuant to 28 U. S. C. § 2075, and were reported to Congress by
The Chief Justice on the same date. For the letter of transmittal, see
post, p. 1026. The Judicial Conference report referred to in that letter is
not reproduced herein.
Note that under 28 U. S. C. § 2075, such amendments shall take effect
no earlier than December 1 of the year in which they are transmitted to
Congress unless otherwise provided by law.
For earlier publication of the Federal Rules of Bankruptcy Procedure
and amendments thereto, see, e. g., 461 U. S. 973, 471 U. S. 1147, 480 U. S.
1077, 490 U. S. 1119, 500 U. S. 1017, 507 U. S. 1075, 511 U. S. 1169, 514 U. S.
1145, 517 U. S. 1263, 520 U. S. 1285, 526 U. S. 1169, 529 U. S. 1147, 532
U. S. 1077, 535 U. S. 1139, 538 U. S. 1075, 541 U. S. 1097, 544 U. S. 1163, 547
U. S. 1227, 550 U. S. 989, 553 U. S. 1105, 556 U. S. 1307, 559 U. S. 1127, 563
U. S. 1051, 566 U. S. 1045, 569 U. S. 1141, 572 U. S. 1169, 575 U. S. 1049, 578
U. S. 1051, 581 U. S. 1035, 584 U. S. 1057, and 587 U. S. 1087.
1025
LETTER OF TRANSMITTAL
Supreme Court of the United States
washington, d. c.
April 27, 2020
To the Senate and House of Representatives of the United
States of America in Congress Assembled:
I have the honor to submit to the Congress the amend-
ments to the Federal Rules of Bankruptcy Procedure that
have been adopted by the Supreme Court of the United
States pursuant to Section 2075 of Title 28, United States
Code.
Accompanying the amended rules are the following mate-
rials that were submitted to the Court for its consideration
pursuant to Section 331 of Title 28, United States Code:
a transmittal letter to the Court dated October 23, 2019; a
redline version of the rules with committee notes; an excerpt
from the September 2019 report of the Committee on Rules
of Practice and Procedure to the Judicial Conference of the
United States; and an excerpt from the May 2019 report of
the Advisory Committee on Bankruptcy Rules.
Sincerely,
(Signed) John G. Roberts, Jr.
Chief Justice of the United States
1026
SUPREME COURT OF THE UNITED STATES
April 27, 2020
Ordered:
1. The Federa l Ru les of Bankr uptcy Procedure are
amended to include amendments to Rules 2002, 2004, 8012,
8013, 8015, and 8021.
[See infra, pp. 1029–1032.]
2. The foregoing amendments to the Federal Rules of
Bankruptcy Procedure shall take effect on December 1, 2020,
and shall govern in all proceedings in bankruptcy cases
thereafter commenced and, insofar as just and practicable,
all proceedings then pending.
3. The Chief Justice is authorized to transmit to the
Congress the foregoing amendments to the Federal Rules
of Bankruptcy Procedure in accordance with the provisions of
Section 2075 of Title 28, United States Code.
1027
AMENDMENTS TO THE FEDERAL RULES
OF BANKRUPTCY PROCEDURE
Rule 2002. Notices to creditors, equity security holders, ad-
ministrators in foreign proceedings, persons against
whom provisional relief is sought in ancillary and
other cross-border cases, United States, and United
States Trustee.
.....
(f ) Other notices.—Except as provided in subdivision (l)
of this rule, the clerk, or some other person as the court
may direct, shall give the debtor, all creditors, and indenture
trustees notice by mail of:
.....
(7) entry of an order confrming a chapter 9, 11, 12, or
13 plan;
.....
(h) Notices to creditors whose claims are fled.
(1) Voluntary case.—In a voluntary chapter 7 case,
chapter 12 case, or chapter 13 case, after 70 days following
the order for relief under that chapter or the date of the
order converting the case to chapter 12 or chapter 13,
the court may direct that all notices required by subdivi-
sion (a) of this rule be mailed only to:
• the debtor;
• the trustee;
• all indenture trustees;
• creditors that hold claims for which proofs of claim
have been fled; and
• creditors, if any, that are still permitted to fle claims
because an extensi on was granted under Ru le
3002(c)(1) or (c)(2).
(2) Involuntary case.—In an involuntary chapter 7 case,
after 90 days following the order for relief under that
1029
1030 R
ULES OF BANKRUPTCY PROCEDURE
chapter, the court may direct that all notices required by
subdiv
ision (a) of this rule be mailed only to:
• the debtor;
• the trustee;
• all indenture trustees;
• creditors that hold claims for which proofs of claim
have been fled; and
• creditors, if any, that are still permitted to fle claims
because an extensi on was granted under Ru le
3002(c)(1) or (c)(2).
(3) Insuffcient assets.—In a case where notice of insuf-
fcient assets to pay a dividend has been given to creditors
under subdivision (e) of this rule, after 90 days following
the mailing of a notice of the time for fling claims under
Rule 3002(c)(5), the court may direct that notices be mailed
only to the entities specifed in the preceding sentence.
.....
(k) Notices to United States Trustee.—Unless the case is
a chapter 9 municipality case or unless the United States
trustee requests otherwise, the clerk, or some other person
as the court may direct, shall transmit to the United States
trustee notice of the matters described in subdivisions (a)(2),
(a)(3), (a)(4), (a)(8), (a)(9), (b), (f )(1), (f )(2), (f )(4), (f )(6), (f )(7),
(f )(8), and (q) of this rule and notice of hearings on all appli-
cations for compensation or reimbursement of expenses.
.....
Rule 2004. Examination.
.....
(c) Compelling attendance and production of documents
or electronically stored information.—The attendance of an
entity for examination and for the production of documents
or electronically stored information, whether the examina-
tion is to be conducted within or without the district in which
the case is pending, may be compelled as provided in Rule
9016 for the attendance of a witness at a hearing or trial.
As an offcer of the court, an attorney may issue and sign a
R
ULES OF BANKRUPTCY PROCEDURE
1031
subpoena on behalf of the court where the case is pending if
the
attorney is admitted to practice in that court.
.....
Rule 8012. Disclosure statement.
(a) Nongovernmental corporations.—Any nongovern-
mental corporation that is a party to a proceeding in the
district court or BAP must fle a statement that identifes
any parent corporation and any publicly held corporation
that owns 10% or more of its stock or states that there is no
such corporation. The same requirement applies to a non-
governmental corporation that seeks to intervene.
(b) Disclosure about the debtor.—The debtor, the trustee,
or, if neither is a party, the appellant must fle a statement
that:
(1) identifes each debtor not named in the caption; and
(2) for each debtor that is a corporation, discloses the
information required by Rule 8012(a).
(c) Time to fle; supplemental fling.—A Rule 8012 state-
ment must:
(1) be fled with the principal brief or upon fling a mo-
tion, response, petition, or answer in the district court or
BAP, whichever occurs frst, unless a local rule requires
earlier fling;
(2) be included before the table of contents in the princi-
pal brief; and
(3) be supplemented whenever the information required
by Rule 8012 changes.
Rule 8013. Motions; intervention.
(a) Contents of a motion response; response reply.
(1) Request for relief.—A request for an order or other
relief is made by fling a motion with the district or BAP
clerk.
.....
1032 R
ULES OF BANKRUPTCY PROCEDURE
Rule 8015. Form and length of briefs; form of appendices
and
other papers.
.....
(g) Items excluded from length.—In computing any length
limit, headings, footnotes, and quotations count toward the
limit, but the following items do not:
• cover page;
• disclosure statement under Rule 8012;
• table of contents;
• table of citations;
• statement regarding oral argument;
• addendum containing statutes, rules, or regulations;
• certifcates of counsel;
• signature block;
• proof of service; and
• any item specifcally excluded by these rules or by
local rule.
.....
Rule 8021. Costs.
.....
(d) Bill of costs; objections.—A party who wants costs
taxed must, within 14 days after entry of judgment on ap-
peal, fle with the bankruptcy clerk and serve an itemized
and verifed bill of costs. Objections must be fled within 14
days after service of the bill of costs, unless the bankruptcy
court extends the time.
AMENDMENT TO
FEDERAL RULES OF CIVIL PROCEDURE
The following amendments to the Federal Rules of Civil Procedure were
prescribed by the Supreme Court of the United States on April 27, 2020,
pursuant to 28 U. S. C. § 2072, and were reported to Congress by The
Chief Justice on the same date. For the letter of transmittal, see post,
p. 1034. The Judicial Conference report referred to in that letter is not
reproduced herein.
Note that under 28 U. S. C. § 2074, such amendments shall take effect no
earlier than December 1 of the year in which they are transmitted to
Congress unless otherwise provided by law.
For earlier publication of the Federal Rules of Civil Procedure and
amendments thereto, see 308 U. S. 645, 308 U. S. 642, 329 U. S. 839, 335
U. S. 919, 341 U. S. 959, 368 U. S. 1009, 374 U. S. 861, 383 U. S. 1029,
389 U. S. 1121, 398 U. S. 977, 401 U. S. 1017, 419 U. S. 1133, 446 U. S.
995, 456 U. S. 1013, 461 U. S. 1095, 471 U. S. 1153, 480 U. S. 953, 485
U. S. 1043, 500 U. S. 963, 507 U. S. 1089, 514 U. S. 1151, 517 U. S. 1279,
520 U. S. 1305, 523 U. S. 1221, 526 U. S. 1183, 529 U. S. 1155, 532 U. S. 1085,
535 U. S. 1147, 538 U. S. 1083, 544 U. S. 1173, 547 U. S. 1233, 550 U. S. 1003,
553 U. S. 1149, 556 U. S. 1341, 559 U. S. 1139, 569 U. S. 1149, 572 U. S. 1217,
575 U. S. 1055, 578 U. S. 1061, 581 U. S. 1049, and 584 U. S. 1077.
1033
LETTER OF TRANSMITTAL
Supreme Court of the United States
washington, d. c.
April 27, 2020
To the Senate and House of Representatives of the United
States of America in Congress Assembled:
I have the honor to submit to the Congress an amendment
to the Federal Rules of Civil Procedure that has been
adopted by the Supreme Court of the United States pursuant
to Section 2072 of Title 28, United States Code.
Accompanying the amended rule are the following materi-
als that were submitted to the Court for its consideration
pursuant to Section 331 of Title 28, United States Code:
a transmittal letter to the Court dated October 23, 2019; a
redline version of the rule with committee note; an excerpt
from the September 2019 report of the Committee on Rules
of Practice and Procedure to the Judicial Conference of the
United States; and an excerpt from the June 2019 report of
the Advisory Committee on Civil Rules.
Sincerely,
(Signed) John G. Roberts, Jr.
Chief Justice of the United States
1034
SUPREME COURT OF THE UNITED STATES
April 27, 2020
Ordered:
1. That the Federal Rules of Civil Procedure are amended
to include an amendment to Rule 30.
[See infra, p. 1037.]
2. That the foregoing amendment to the Federal Rules of
Civil Procedure shall take effect on December 1, 2020, and
shall govern in all proceedings in civil cases thereafter com-
menced and, insofar as just and practicable, all proceedings
then pending.
3. The Chief Justice is authorized to transmit to the
Congress the foregoing amendment to the Federal Rules of
Civil Procedure in accordance with the provisions of Section
2074 of Title 28, United States Code.
1035
AMENDMENT TO THE FEDERAL RULES
OF CIVIL PROCEDURE
Rule 30. Depositions by oral examination.
.....
(b) Notice of the deposition; other formal requirements.
.....
(6) Notice or subpoena directed to an organization.—In
its notice or subpoena, a party may name as the deponent
a public or private corporation, a partnership, an associa-
tion, a governmental agency, or other entity and must de-
scribe with reasonable particularity the matters for exami-
nation. The named organization must designate one or
more offcers, directors, or managing agents, or designate
other persons who consent to testify on its behalf; and it
may set out the matters on which each person designated
will testify. Before or promptly after the notice or sub-
poena is served, the serving party and the organization
must confer in good faith about the matters for examina-
tion. A subpoena must advise a nonparty organization of
its duty to confer with the serving party and to designate
each person who will testify. The persons designated
must testify about information known or reasonably avail-
able to the organization. This paragraph (6) does not pre-
clude a deposition by any other procedure allowed by
these rules.
.....
1037
AMENDMENT TO
FEDERAL RULES OF EVIDENCE
The following amendment to the Federal Rules of Evidence was pre-
scribed by the Supreme Court of the United States on April 27, 2020,
pursuant to 28 U. S. C. § 2072, and were reported to Congress by The
Chief Justice on the same date. For the letter of transmittal, see post,
p. 1040. The Judicial Conference report referred to in that letter is not
reproduced herein.
Note that under 28 U. S. C. § 2074, such amendments shall take effect
no earlier than December 1 of the year in which they are transmitted to
Congress unless otherwise provided by law.
For earlier reference to the Federal Rules of Evidence, see 409 U. S.
1132. For earlier publication of the Federal Rules of Evidence and
amendments thereto, see 441 U. S. 1005, 480 U. S. 1023, 485 U. S. 1049,
493 U. S. 1173, 500 U. S. 1001, 507 U. S. 1187, 511 U. S. 1187, 520 U. S.
1323, 523 U. S. 1235, 529 U. S. 1189, 538 U. S. 1097, 547 U. S. 1281, 559
U. S. 1157, 563 U. S. 1075, 569 U. S. 1167, 572 U. S. 1233, 581 U. S. 1055, and
587 U. S. 1101.
1039
LETTER OF TRANSMITTAL
Supreme Court of the United States
washington, d. c.
April 27, 2020
To the Senate and House of Representatives of the United
States of America in Congress Assembled:
I have the honor to submit to the Congress an amendment
to the Federal Rules of Evidence that has been adopted by
the Supreme Court of the United States pursuant to Sec-
tion 2072 of Title 28, United States Code.
Accompanying the amended rule are the following materi-
als that were submitted to the Court for its consideration
pursuant to Section 331 of Title 28, United States Code:
a transmittal letter to the Court dated October 23, 2019; a
redline version of the rule with committee note; an excerpt
from the September 2019 report of the Committee on Rules
of Practice and Procedure to the Judicial Conference of the
United States; and an excerpt from the May 2019 report of
the Advisory Committee on Evidence Rules.
Sincerely,
(Signed) John G. Roberts, Jr.
Chief Justice of the United States
1040
SUPREME COURT OF THE UNITED STATES
APRIL 27, 2020
Ordered:
1. The Federal Rules of Evidence are amended to include
an amendment to Rule 404.
[See infra, p. 1043.]
2. The foregoing amendment to the Federal Rules of Evi-
dence shall take effect on December 1, 2020, and shall govern
in all proceedings thereafter commenced and, insofar as just
and practicable, all proceedings then pending.
3. The Chief Justice is authorized to transmit to the
Congress the foregoing amendment to the Federal Rules of
Evidence in accordance with the provisions of Section 2074
of Title 28, United States Code.
1041
AMENDMENT TO THE FEDERAL RULES
OF EVIDENCE
Rule 404. Character evidence; other crimes, wrongs, or acts.
.....
(b) Other crimes, wrongs, or acts.
(1) Proh ib i ted uses.—Evidence of any other cr ime,
wrong, or act is not admissible to prove a person's charac-
ter in order to show that on a particular occasion the per-
son acted in accordance with the character.
(2) Permitted uses.—This evidence may be admissible
for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.
(3) Notice in a criminal case.—In a criminal case, the
prosecutor must:
(A) provide reasonable notice of any such evidence
that the prosecutor intends to offer at trial, so that the
defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for
which the prosecutor intends to offer the evidence and
the reasoning that supports the purpose; and
(C) do so in writing before trial—or in any form dur-
ing trial if the court, for good cause, excuses lack of pre-
trial notice.
1043
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